Lawyer drags President Buhari through court, seeks orders on medical treatment, transmission of power to vice president

A public interest lawyer, Vincent Adodo, has dragged the President of the Federal Republic of Nigeria through court to secure necessary orders that will henceforth compel him to comply with Section 145 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 46 of the National Healthcare Act 2014.

Specifically, Section 145 (1) provides: “Whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his Office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice-president shall perform the functions of the President as Acting President.”

Section 145 (2) reads: “In the event that the President is unable or fails to transmit the written declaration mentioned in subsection (1) of this section within 21 days, the National Assembly shall, by a resolution made by a simple majority of the vote of each House of the National Assembly, mandate the Vice-President to perform the functions of the office of the President as Acting President until the President transmits a letter to the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.”

Section 46 of the National Healthcare Act 2014 provides: “Without prejudice to the right of any Nigerian to seek medical check-up, investigation or treatment anywhere within and outside Nigeria, no public officer of the Government of the Federation or any part thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the Medical Board and which recommendation and referral shall be duly approved by the Minister or Commissioner of Health of the State as the case may be.”

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These are the cruces of the suit filed by Adodo, and he commenced it by an originating summons at the Federal High Court in Abuja.

Joined as defendants in the suit, which came up before Justice Kolawole Omotosho at Federal High Court 9, in Abuja, on Tuesday, March 14, are the President (first defendant), vice-president (second defendant), President of the Senate (third defendant), Speaker of the House of Representatives (fourth defendant), the National Assembly (fifth defendant), Minister of Health (sixth defendant) and Attorney General of the Federation (seventh defendant).

When the matter came up in court, counsel for the third and fourth defendants who had yet to enter appearance as of Tuesday morning, did so. They are required to file the necessary processes to the plaintiff’s originating summons. The first, second, fifth, sixth and seventh defendants had before Tuesday filed their counter affidavits and written addresses in support of the same.

The plaintiff (Adodo) told the Court that he would need time to respond to the processes that the thid and fourth defendant would file.

Justice Kolawole gave May 18, 2023 date for hearing of the suit before which time parties would have filed all their processes.

THE CONCLAVE reporter, who was in Court, said that a peep into the processes filed by Adodo showed that he had formulated, in his originating summons, six questions for determination, to wit:

▪Whether the first defendant can lawfully proceed on medical vacation without transmitting a written declaration to the 3rd and 4th defendants as mandatorily required by Section 145 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended);

▪Having regard to the intent and purpose of Section 145 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), whether the 1st defendant is not under a mandatory constitutional duty to transmit a written declaration to the 3rd and 4th defendants whenever he is proceeding on medical vacation or otherwise becomes unable to discharge the functions of his office;

▪Whether the 1st defendant, being a public officer of the Government of the Federation, is not disentitled from seeking medical investigation, check-up and treatment abroad except only in exceptional cases verified by a referral or recommendation of the medical board under Section 46 of the National health Act 2014;

▪ Whether the 1st defendant, being a public officer of the Government of the Federation can lawfully seek medical investigation, check-up or treatment abroad without a referral or recommendation of a medical board which recommendation must be approved by the 6th defendant under Section 46 of the National health Act 2014;

▪Having regard to the intent and purpose of Section 145 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which is to prevent a vacuum in the governance and affairs of the Federal Republic of Nigeria, whether the 3rd and 4th defendants are not under a mandatory constitutional duty to mandate the 2nd defendant to assume and perform the functions of the 1st defendant immediately when the 1st defendant proceeds on vacation or otherwise becomes unable to perform the functions of his office; and,

▪ Having regard to the intent and purpose of section 145 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) which is to prevent any vacuum in the governance and affairs of the Federal Republic of Nigeria, whether the 3rd, 4th and 5th defendant are constitutionally required to wait for a period of 21 days after the 1st defendant proceeds on vacation before invoking section 145 (2) of the Constitution of the Federal Republic of Nigeria to mandate the 2nd defendant to perform the functions of the office of the 1st defendant.

The plaintiff is seeking nine declarations as follows:

▪A declaration of this Honourable Court that it is unlawful, unconstitutional and contrary to national interest for the 1st defendant to proceed on medical vacation and/or tourism without transmitting a written declaration to the 3rd and 4th defendants as mandatorily required by section 145 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended);

▪A declaration that as a public officer in the Government of the Federation whose medical need is sponsored by tax payers’ funds, the 1st defendant cannot seek medical investigation, check-up and treatment abroad unless in exceptional cases verified by a referral or recommendation made by the medical board under section 46 of the National Health Act 2014;

▪A declaration that it is illegal and/or unlawful for the 1st defendant, being a public officer of the Government of the Federation to seek medical check-up, investigation or treatment abroad except there is a recommendation or referral by the medical board and such referral or recommendation approved by the 6th defendant as mandated by section 46 of the National Health Act 2014;

▪A declaration that the 3rd and 4th defendants must invoke the provisions of section 145 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) i.e. to mandate the 2nd defendant to perform the functions of the 1st defendant immediately the 1st defendant travels out of the country on vacation or becomes unavailable to perform the functions of his office;

▪ A declaration that the 3rd, 4th and 5th defendants are not under a constitutional obligation to wait for a period of 21 days after the 1st defendant proceeds on vacation before invoking section 145 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) to invoke section 145 (2) of the same Constitution to mandate the 2nd defendant to perform the functions of the office of the 1st defendant;

▪A mandatory injunction of this Honourable Court compelling the 3rd, 4th, and 5th defendants to invoke the provisions of section 145 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) immediately at any such time when the 1st defendant fails to transmit a written declaration as mandatorily required by section 145 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended)

▪An order of perpetual injunction restraining the 1st defendant from seeking medical investigation, check-up and/or treatment abroad except for any exceptional case which must be based on, or verified by a referral or recommendation of the medical board under section 46 of the National Health Act 2014;

▪ An order of perpetual injunction restraining the 1st defendant from proceeding on vacation abroad without transmitting a written declaration as mandatorily required by section 145 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended);

▪And for such further and other orders as this Honourable Court may deem fit to make in the circumstances of this case.

Adodo’s originating summons is supported by a seventeen-page written address.

Counsel to the 1st defendant (President), second defendant (vice president0 and seventh defendant (Attorney General fo the Federation) filed the same/consolidated counter affidavit, which they supported with the same/consolidated written address. The fifth defendant (The National Assembly) and sixth defendant (Minister of Health) also filed their counter affidavits and written addresses to set the stage for their identification and adoption in court prelude to ruling/judgment.

That is expected to happen on May 18, 2023, the date fixed by Justice Omotosho for hearing.

In their written address, counsel to the 1st, 2nd and 7th defendants are arguing that the plaintiff’s affidavit in support of his originating summons is incompetent, having regards to the provisions of Section 115 of the Evidence Act.

They are also arguing that the plaintiff is not entitled to the reliefs sought by the statement of facts of his suit as disclosed.

They also argue that on the issue raised by the plaintiff about the 1st defendant not obtaining recommendation and referral from the medical board and which recommendation and referral must be approved by the Minister of health before embarking on the medical trips abroad pursuant to section 46 of the National Health Act, “the 1st, 2nd and 7th defendants submit that the provisions of Section 46 of the National Health Act relied on by the plaintiff does not apply to the President of the Federal Republic of Nigeria as he is not a public officer pursuant to section 318 of the 1999 Constitution for the National Health Act to apply to him.

“Section 46 of the National Health Act states: ‘Without prejudice to the right of any Nigerian to seek medical check-up, investigation or treatment anywhere within and outside Nigeria, no public officer of the Government of the Federation or any part thereof shall be sponsored for check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendations or referral shall be duly approved by the minister or the commissioner as the case may be.’”

They argue in part: “It is settled rule of interpretation that where words are clear and unambiguous that the court should give or apply its ordinary meaning. We commend your lordship to the case of Dara & Anor v, Alagboso & Ors (2015) LPELR-25672 (CA). We submit that the provisions of Section 46 of the National Health Act are clear that it is only a public officer of the government of the federation that the provision applies to. We urge your lordship to apply the ordinary meaning to the said provision and uphold our argument that the provisions of Section 46 of the National Health Act is only applicable to Public Officers and the President of the Federal Republic of Nigeria is not a Public Officer.”