Yar’Adua: No room for offshore president –Court Saturday, January 30, 2010

•Says constitution did not compel Yar’Adua to hand over to Jonathan


The Chief Judge of the Federal High Court, Justice Dan Abutu, has declared it was against the spirit of the Constitution for President Umar Musa Yar’Adua to perform his presidential functions outside the shores of the country.

Besides, the court went further to hold that it was unconstitutional for the office of the President to be held in abeyance.
Justice Abutu gave this verdict in his judgment in the suit filed by the Incorporated Trustees of Nigerian Bar Association (NBA), its President, Oluwarotimi Akeredolu (SAN) and Ibrahim Eddy Mark (General Secretary).

The court, however, held that Section145 of the 1999 Constitution did not impose a duty on the President to transmit a written declaration to National Assembly whenever he is proceeding on vacation or is otherwise unable to discharge the functions of his office.
In the suit, the plaintiffs are challenging the refusal of President Umar Yar’Adua to write the National Assembly before embarking on a medical vacation in Saudi Arabia in line with Section 145. He is yet to return since November 23.

Justice Abutu dismissed the argument of the Attorney General of the Federation and Justice Minister, Mr. Michael Aondoakaa (SAN) that the plaintiffs lacked the locus standi to initiate the action.
He, however, held that Section145 of the 1999 Constitution did not impose a duty on the President to transmit a written declaration to National Assembly whenever he is proceeding on vacation or is otherwise unable to discharge the functions of his office.

According to him, no word or parenthesis imposing an obligation is used in the section.
“In the instance case, neither the word may or shall have been used. No word shows that that the president has a duty to transmit a written declaration,” the judge said, adding: “The duty of a court is limited to the interpretation of a status. Justice must be dispensed in accordance with law. I’m unable to come to conclusion based on the word used in the constitution that the president has a duty to transmit a written declaration to the National Assembly before proceeding on a vacation.

“That the president omitted to transmit a written declaration to the leadership of National Assembly is not a violation of the Constitution. There is no mandatory requirement to transmit a declaration to the National Assembly”. He held that Vice President Goodluck Jonathan could discharge the functions of the president as because the condition precedent has not been met.

He held that the doctrine of necessity cannot be invoked in the absence of the condition precedent. There is no basis for the court. While responding to the judgment, Aondoakaa said: “Every organ of government must recognize the Vice President as performing both the executive powers of the president delegated to the vice president on Mr. President’s behalf.”