Abuja — A Federal high court sitting in Abuja yesterday faulted Vamed Engineering GMbH on its mode of approaching the court over the dispute arising from the N9.5 billion contract awarded to it by the Federal Ministry of Health.

The said contract is for the supply of ultra-modern medical equipment to twelve medical centres in the country.

The trial high court judge, Justice Gabriel Kolawole who disclosed his intention to convert the originating summons filed in the case, said that since some of the issues in dispute were contentious, it said there was no way the matter could be resolved without calling oral evidence.

Kolawole said he should convert the originating summons filed by Vamed in the case to a writ of summons to enable both parties the opportunities of ventilating their grievances.

But he said that he would not ask parties in the case to file their pleadings until he had taken arguments on the application of two firms, - Lab Assist Nigeria Limited and Rubicon-Tek Nigeria Limited, seeking to join the instant suit.

He has however fixed March 26, 2009 to entertain arguments on the applications of the two firms, seeking to join the action as interested parties.

His words: "I have read through all these, it does appear to me that there is a need for parties to file pleadings as the matter may not be easily resolved through the originating summons.

"It is a matter we will resolve by entering viva voce [oral] evidence. I am therefore inclined to say that there will be need for parties to file pleadings for oral evidence to be called", the Judge stated.

Counsel to the Plaintiff, Chief Duro Adeleye [SAN] agreed with the reasoning of the Judge even as Counsel to the Health Minister, Felix Iyaji sought an adjournment to enable them respond appropriately, since according to him, he was yet to receive detailed briefing from his client.

According to the affidavit in support of their joinder application filed by their Counsel, Taiwo Taiwo, the firms said being contractors to the 1st Defendant, they also submitted bids for the said contract based on an advertorial of April 28 to May 11, 2008.

They averred that "the issues and disputes involved in this suit cannot be completely and effectually determined unless the applicants are joined as defendants in the suit."

Specifically, the Plaintiff -Vamed Engineering Nigeria Limited had beseeched the court to challenge the decision of government to stop the contract it duly awarded to it for the supply and standardization of medical equipment in twelve Federal Medical Centres in the country and its [government's] consequent attempt to re-award the said contract to another company by calling for fresh tenders.

Vexed by this development, the Plaintiff is asking it to determine whether the refusal and or failure of the Ministry of Health to take necessary steps to execute the two projects listed on page 324 of the 2008 Appropriation Act [which relate to the standardization of the Medical Centres] is not tantamount to "to a deliberate act of frustrating the implementation of the year 2008 budget."?

The two projects include the "on-going" FGN/VAMED Engineering project for the rehabilitation and equipping of the University of Abuja Teaching Hospital (UATH) valued at N1 billion and the N8.5 billion FGN/VAMED Engineering Ltd projects phase 1 for the modernisation and equipping of 12 Federal Medical Centres located in Nguru, Gusau, Jalingo, Katsina, Keffi, Lokoja, Owo, Ebute Metta, Uyo, Yenagoa, Umuahia and Owerri.?

Both projects which, were awarded to the Plaintiff [Vamed] had been approved by the Federal Executive Council and included in the 2008 Appropriation Act for implementation.

But the Ministry of health, citing "due process" re-advertised for new tenders for the projects, thus causing the Plaintiffs to bring about the instant action.

In suit No FHC/ABJ/CS/557/08 filled October 7, 2008 by solicitors, Chief Duro Adeyele [SAN] of Bayo Ojo [SAN] & Co, VAMEd is challenging the invitation for fresh Tender for a project, which had been awarded, to it.

Accordingly, Adeleye argued that the invitation for Tender number FMH/TERTHOSP/MEDEQUIP/01108 and Tender's package number 1234 dated 14 July 2008 issued by the Federal Ministry of Health in respect of the two projects is "unconstitutional, null and void and of no effect whatsoever being contrary to the Appropriation Act 2008, the rule of law and due process."

The plantiff also states in the originating summons that by the defendants publishing the invitation for projects acknowledged as "on-going" by the Appropriation Act is overriding the National Assembly. The suit is also asking the Court to determine "whether the 1st defendant (Minister of Health) has not, by his attitude towards the Appropriation Act 2008 relative to the on-going projects which form the subject matter of this suit abused his office as a Minister of Federal Republic of Nigeria and treated the constitutional powers /authority of the National Assembly with disdain, thereby breaching his oath of office."

VAMEd is therefore claiming the following reliefs:

*A declaration that the 1st defendant, who is Minister of the Federal Republic of Nigeria , cannot competently refuse to implement the Appropriation Act 2008 duly passed by the National Assembly and signed to law by the President as it affect and concern his Ministry;

*A declaration that it is ultra vires for the 1st defendant to publish invitation for tender to the public on-going projects for which fund had been appropriate in the Appropriation Act 2008 and specifically captured in the Act in the name of the plaintiff who is the executing contractor;

*A declaration that by the invitation for projects acknowledged as "on-going projects" by the Appropriation Act 2008, the 1st defendant has purported to override the National Assembly;

*A declaration that the refusal and or failure to take necessary steps that would enable the plantiff continue with the execution of the projects is "unconstitutional and condemnable";

*An order of mandamus compelling the defendants to forthwith take all necessary steps which by law and administrative arrangement are theirs to take either jointly or severally to enable the plaintiff to execute the two projects; and

*An order of perpetual injunction restraining the defendants, either jointly or severally by themselves, their servants, agents and or privies from further making any invitation for tender about and concerning the projects, so long as the executing contractor is prepared and ready to implement the projects.

In addition to the Minister of Health and Attorney General of the Federation as defendants, VAMED Engineering Ltd, on November 4, 2008 filed a motion on notice at the same Federal High Court joining the President of the Senate and the Speaker of the House of Representatives as co-defendants/respondents contending that "it is imperative for the Senate President and the Speaker, House of Representatives be joined in this suit since the project in issue was duly

appropriated by the National Assembly."

It also asserted that by "the passage of the Appropriation Act 2008 by the National Assembly, appropriating funds for the said projects made it a law binding on all persons and authorities in Nigeria ."

In an affidavit in support of the originating summons, Prince Albert Awofisayo, representing VAMED Engineering Ltd, stated that that his firm "had successfully implemented the Federal Government of Nigeria 's carefully defined policy of standardization of its teaching hospitals which commenced in year 2002."

He also submitted that his firm "successfully completed and commissioned" the Ahmadu Bello University Teaching Hospital, Zaria , University College Hospital, Ibadan , University of Maiduguri Teaching Hospital, Maiduguri , University of Port Harcourt Teaching Hospital, Port Harcourt , University of Nigeria Teaching Hospital, Enugu , Lagos University Teaching Hospital, Idi-Araba, Lagos, Jos University Teaching Hospital, Jos and the University of Ilorin Teaching Hospital, Ilorin

It therefore submitted that the University of Abuja Teaching Hospital is part of the Teaching Hospitals Phase 2 contracts which already had due process certification, but was delayed in order for the Gwagwalada Specialist Hospital to be approved and designated as the University of Abuja Teaching Hospital.

Meanwhile, the Federal Government through the Attorney General of Federation [AGF] has filed a preliminary objection challenging the competence of the Plaintiff's action on the argument that it is "speculative, vexatious and does not disclose any cause of action.

The AGF debunked claims of the Plaintiffs of having an on-going contract.

He argues that the Plaintiff's suit is "contrary to public policy and unenforceable" as according to him, "the originating summons seeks to input into the Appropriation Act what is not in the document and to compel parties to contract on terms surreptitiously entered into.