…says request constitutes abuse of court process
By Ise-Oluwa Ige
ABUJAâ€”The Federal Government yesterday asked a Federal high court sitting in Abuja to refuse a request by radical Lagos lawyer, Mr Femi Falana, seeking to refer to the Court of Appeal three constitutional questions touching on whether it is legal and constitutional for President Umaru Musa Yarâ€™Adua to proceed on medical leave without handing over to his Vice, Jonathan Goodluck, to perform presidential functions in acting capacity.
The government is claiming that Falanaâ€™s application is unfounded in law, unmeritorious and an abuse of court process.
Vanguard reports that Mr Femi Falana, had, last week urged a Federal high court presided over by Justice Adamu Bello, for a referral of three constitutional questions.
The three questions carefully couched revolved around sections 5 (1), 145, and 148(1) of the 1999 constitution all of which deal with the exercise of presidential powers to cede the functions of his office to his cabinet members either in a delegated or acting capacity.
It is trite that a high court has the powers to refer substantial questions of law to the Court of Appeal for pronouncement either upon application from the parties in the case or by the court itself suo motu.
The said question include: Whether by virtue of Section 145 of the Constitution the Vice President can discharge the functions of the President without a written declaration transmitted to the President of the Senate and Speaker of the House of Representatives by the President to the effect that he is proceeding on
vacation or otherwise unable to discharge the functions of his office.
Whether the Vice President can exercise the powers of the President under Section 148( 1) of the Constitution
when the President has not transmitted a written declaration to the President of the Senate and the Speaker of the House of Representatives pursuant to Section 145 of the Constitution.
Whether the failure or refusal of the President to transmit a written declaration to the President of the Senate and Speaker of the House of Representatives before proceeding on medical, vacation on November 23, 2009 is not a violation of Section 145 of the Constitution.
Falana invoked section 295 (2) of the 1999 constitution which conferred concurrent jurisdiction on both the Federal and state high courts to refer such application to the Court of Appeal when issues for reference involve substantial questions of law.