By Ise-Oluwa Ige
A law suit filed by former Minority Leader of the House of Representatives, Mr. Farouk Aliyu, before an Abuja Federal High Court, seeking to compel the Executive Council of the Federation,Â EXCOF, to pass a fresh resolution declaring President Umaru Yarâ€™Adua unfit to govern on account of his failing health, yesterday, suffered a fresh setback.
Justice Adamu Bello, who had assumed jurisdiction on the case, could not move the case forward yesterday following a report to the court by Mr. Bamidele Aturuâ€™s Chambers, the counsel to Aliyu to the effect that the court bailiff was yet to serve the originating motion on the Attorney-General of the Federation and EXCOF who were respondents in the case.
The trial judge, at the resumed hearing of the case, yesterday, said the matter would not go on since the other party was yet to be served.He said going ahead would offend the principle of fair hearing.
Justice Bello said the best he could do in the circumstance was to adjourn the case for mention. He subsequently fixed June 3, for further mention of the case.
The judge had earlier given its nod to a request by Aliyu to review the 27 January, resolution passed by the Yarâ€™Adua cabinet which returned a clean bill of health to the ailing president.
The permission to review the resolution followed an ex-parte application brought and argued by Aturu to the effect.
President Yarâ€™Adua was wheeled out of Aso Rock at the wee hours of November 23, 2009 for urgent medical attention in Saudi Arabia.
He is said to be suffering from an ailment diagnosed as acute pericarditis.
Since he was rushed out of the country last year, no one has seen or heard from him including all members of the Executive Council of the Federation.
Although he was rushed back into the country February 24, this year, nobody including the Acting President Jonathan Goodluck had seen him neither had he been able to make any public appearance.
He himself had confessed through his aides that he was not capable to shoulder the burden of his office presently.
But without seeing him or having any information on the condition of his health, the members of the Executive Council of the Federation had, two times, passed a resolution to the effect that he was capable of governing the country.
The first resolution was passed on December 2, 2009 to frustrate the activation of the provision of section 144 (2) of the 1999 constitution while the second one was passed on January 27, 2010 to rubbish the order of the Abuja Federal high court which directed that his health should be probed.
Both resolutions were passed without any access to the medical report on President Yarâ€™Adua by the Executive Council of the Federation peopled by those not recognized by the 1999 constitution.
Both the ex-lawmaker, Farouk Aliyu and the leader of the Nasarawa chapter of the Nigerian Bar Association (NBA), Garum Gabbas, who approached the court to order EXCOF to pass a resolution, declaring Yarâ€™Adua incapable of continuing governance in view of evident evidence of his incapability are contending that the order of the court was not complied with.
They came to court by a way of judicial review.
The prerequisite leave that must be obtained before the prerogative order of certiorari could be obtained in court was granted them.
In their main application for the prerogative order, the duo of Farouk and Garum Gabbas are contending that the so-called January 27, 2010 resolution being challenged in court was passed by a group of President Umaru Yarâ€™Aduaâ€™s aides, cronies and ministers contrary to the clear order of the Federal high court to the effect that it must be passed by the Economic Council of the Federation as established by section 144 (5) of the 1999 Constitution of the Federal Republic of Nigeria.
The section defines the Economic Council of the Federation as comprising only serving ministers of the Federal Republic of Nigeria.
The duo who invited the court to void the resolution for not predicating it upon any medical record or document of the ailing President Yarâ€™Adua also asked the Federal high court to issue an order of mandamus compelling the EXCOF to pass a fresh one which meets the dictates of both the order of the court and the constitutional provisions within seven days.
Radical human rights activist, Mr Bamidele Aturu who filed the application for an order of certiorari to quash the January 27 resolution is saying that so far the Council of Yarâ€™Aduaâ€™s friends, aides, cronies and ministers which purportedly sat as the EXCOF did not rely on any medical record of the president before passing the resolution, he said it has failed the test of reasonableness and must, of necessity, collapse.
The Abuja Federal high court, had, itself, annulled the first resolution hurriedly passed by the Federal Executive Council (FEC) on December 2, 2009, giving the president a clean bill of health without discussing his health status on the floor of the meeting.
The trial high court judge, Justice Dan Abutu, in the parent suit, had not only declared that the Federal Executive Council which purportedly passed the resolution was unknown to the 1999 constitution but that the resolution itself contained a clause which expressly stated that the presidentâ€™s health was not discussed before it was passed.
The court had said that the said resolution was not only an opinion but one without any legal weight as contemplated by section 144 of the 1999 constitution.
The application for an order of certiorari was filed on a day rumours made the rounds that members of the ECF were already divided on the health status of the ailing president with some of them urging the Council to put an end to the drama of fooling Nigerians.
One of the ECF members was said to have tendered a memo to the effect that they should do the right thing by discussing the state of Mr Presidentâ€™s health with a view to passing the resolution envisaged under the law to the effect that the president was incapable to conyinue in office at least for now.
Vanguard gathered that the memo was shot down while the proceedings of the Council meeting was said to have omitted the drama.
Besides, the plaintiffs in the case made good their threat by filing a notice of appeal challenging the verdict of the Abuja Federal high court which refused two of their prayers.
They said the entire judgment given in the case was not only against the weight of evidence but that the judge perhaps deliberately kept quiet over part of their submissions, written and oral, on the live issues before him so that he would give judgment in favour of the defendants.