A constitutional row broke out yesterday over the President’s continued absence from work.A letter purportedly written by Attorney-General of the Federation and Minister of Justice Michael Aondoakaa (SAN) asking Vice President Goodluck Jonathan to take over power triggered the controversy.

But the tension was doused before it could grow out of hand, with Aondoakaa saying he had no power to ask Jonathan to take over. The Presidency also denied the existence of the purported letter.

President Umaru Yar’Adua has been in King Faisal Specialist Hospital, Jeddah, Saudi Arabia, since November 23, receiving treatment for acute pericarditis (inflammation of the heart’s lining).His absence has elicited calls for his resignation to pave the way for Jonathan to assume power.

Last week, activist lawyer Femi Falana went to court, seeking the constitutional interpretation of the President’s absence from home. similar suit was filed at the Abuja Federal High Court yesterday by former Minority Leader of the House of Representatives, Farouk Aliyu. He was in the House between 2003 and 2007.

Aondoakaa was reported on Wednesday to have asked Jonathan to take over in accordance with Section 5 of the Constitution, which he claims overrides Section 145 since the President did not write the National Assembly before travelling.

Constitutionally, the President is expected to inform the Senate President and House of Representatives Speaker that the Vice President will act whenever he would be away for long.

The Minister was also reported to have advised the Vice President that the Chief Justice – designate, Justice Aloysius Katsina-Alu and Court of Appeal President – designate, Justice Isa Salami, need not be sworn in before they assume office.

All that needs be done is for them to be given letters acknowledging their confirmation by the Senate, Aondoakaa was said to have told Jonathan.

Justice Katsina-Alu and Justice Salami were confirmed by the Senate last week. They are waiting to be sworn in by the President before assuming office.

Justice Salami’s predecessor, Justice Umaru Abdullahi, has left office. The present Chief Justice, Justice Idris Kutigi is leaving next Thursday.

In a statement in Abuja by his Senior Special Assistant, media, Onov Tyuulugh, Aondoakaa said the insinuation that he asked Jonathan to take over "is wrong in its entirety".

Aondoakaa said: "I as the number one law officer of the Federation do not have such powers to direct the Vice President to take over.

"The relevant section of the Constitution of the Federal Republic of Nigeria vests the powers to appoint or replace the President of the Federation on the National Assembly".

The Minister added that the Chief Justice of the Federation, the President of the Court of Appeal or any judicial officer can only function in that capacity after taking their oath of office as stipulated in section 290 of the Constitution.

Aondoakaa said it became necessary to make the clarification following the misconceptions on the position of the President and the Vice President.

Denying the existence of the letter, Minister of Information and Communications, Prof. Dora Akunyili, and Senior Special Assistant to the Vice President on Media and Publicity, Ima Niboro, said they are unaware of it.

Mrs Akunyili said: "I am not aware of such letter neither has it been brought to my knowledge." Niboro said questions on the authenticity of the letter should be directed to Aondoakaa, who was alleged to have written it.

He said he is not aware of the letter, neither has the Vice President told him of its existence.Falana said yesterday that Aondoakaa’s purported letter should be ignored because "it is diversionary and misguided".

The rights activist said: "The Attorney-General lacks the power to donate to the Vice-President the executive powers conferred on the President by virtue of Section 5 of the Constitution.

"However, the Vice-President can become president if the President has become permanently incapacitated due to Section 146 of the Constitution.

"The Vice President cannot sign any bill into law under the Constitution. Furthermore, the incoming Chief Justice and Court of Appeal President cannot begin to perform the functions of their offices until they have taken the oath of office administered by the President pursuant to Section 29 of the Constitution and the Oaths Act."

In his suit, Aliyu, a chieftain of the All Nigeria Peoples Party (ANPP), is suing the Attorney-General and the Federal Executive Council (FEC) over what he calls a vacuum in the country’s leadership. He claims that the President’s absence has grounded governance.

In the Originating Summons, Aliyu and a businessman Sani Gabbas are praying the court to determine if the FEC ought not to be compelled to pass a resolution as to whether or not the President is incapable of discharging the functions of his office.

Other issues for determination are:

•whether his absence from his constitutional and statutory duties for medical treatment since November 23, without being on vacation does not constitute permanent incapacity as stated in Section 146 of the 1999 Constitution; and

•whether having regard to the circumstances surrounding the absence of the President, it is lawful for the Vice President to refuse to exercise the functions of the Office of the President.

If resolved in their favour, the plaintiffs urge the court to declare that the President’s absence constitutes permanent incapacity within the meaning and intendment of Section 146 of the 1999 Constitution, adding:

The non-challant attitude of FEC members is a flagrant violation of the spirit and letters of Section 144 of the 1999 Constitution and an indefensible breach of their oath of allegiance and oath for the due execution of the duties of office prescribed in the Seventh Schedule by virtue of Section 149 of the Constitution.

"And that it is unconstitutional for the Vice President to refuse to exercise the functions of the Office of the President.

In the affidavit in support, Aliyu averred that the refusal of the Vice President to perform the functions of the President in his absence has grounded governance.

According to him, Yar’Adua’s absence from his duties has led to failure on the part of members of the Executive Council of the Federation to prepare the Annual Cash plan for the 2010 financial year.

Besides, he lamented that "the security of lives and property, and public safety have been left unattended to without anyone to issue lawful directions.

"I know as a fact that the National Assembly has passed the Supplementary Appropriation Bill for 2009 but the President has been unavailable to sign the Bill into law.

"The Vice President ... has refused or neglected to sign the said Appropriation Bill into law. He has also been widely reported in the media as not performing functions constitutionally reserved for the President..."

Aliyu stated in the affidavit of urgency that "the militants in the Niger Delta have resumed hostilities giving as their reason the absence of the President from the country.

"Unless this matter is heard and determined urgently, there will be a continued deterioration of social infrastructure and economic crisis", he added.