Appeal court hears case challenging Jonathan’s eligibility to contest
THE Federal High Court, Abuja Division Monday referred to the Court of Appeal, Abuja Division to decide whether or not President Goodluck Ebele Jonathan was eligible to contest the next presidential election having inherited the remainder of the tenure of the late President Umar Musa Yar’Adua.
In a ruling delivered Monday by Justice Ahmed Mohammed on an application for referral filed on November 28, 2015 by two lawyers, Adejumo Ajagbe and Olatoye Wahab. Agbaje and Wahab had sued the AGF and the Independent National Electoral Commission (INEC), seeking to restrain them from allowing Jonathan to participate in the next presidential election on the ground that his second term would end on May 29, 2015.
However, prior to a decision being entered in the substantive suit, the duo filed the application for referral, urging the court to refer the interpretation of sections 135(2)(a) and (b) and 137(1) of the Constitution to the Court of Appeal, a request the AGF objected to.
In the argument of the plaintiff’s counsel, Mahmud Magaji (SAN), he had submitted that unless the Court of Appeal first resolved the substantial issue of constitutional law raised by his clients with regards to the effect of sections 135(2)(a) and (b) and 137(1) of the 1999 Constitution as to whether a person sworn into the office of the President on two previous terms is deemed to have been elected to that office at the two previous elections, it would be difficult for the trial court to determine the substantive case.
In objecting to the referral, the AGF queried the plaintiffs’ legal right and argued that the case was an abuse of court process because a similar case had been decided by the High Court of Federal Capital Territory (FCT), which is now on appeal at the Court of Appeal, Abuja.
The appeal referred to by the AGF was filed by Cyriacus Njoku, who is challenging the judgment of Justice Mudashiru Oniyangi of the Federal Capital High Court, who had earlier ruled that Jonathan was eligible to stand for re-election.
Delivering his verdict, Justice Mohammed dismissed the AGF’s objection as he held that the plaintiffs have the locus standi to file the suit. The judge also held that the parties in this case were different from the one decided by Justice Oniyangi at the FCT High Court. And therefore the instant case was not an abuse of court process.
He also held that the fact that the case was yet to be decided by the appellate court implied that the issue of the interpretation of Sections 135 and 137 of the Constitution has not been finally put to rest.
“The fundamental feature of the issue is that there is no decision yet by the appellate court as it relates to the interpretation of sections 135 and 137 of the Constitution in relation to the tenure of office of the President, concerning whether or not the oath of office taken by President Jonathan after the death of President Umar Yar’Adua should be regarded as an election.
“It is my humble view that the constitutional issue raised by the plaintiffs’ present suit involves substantial question of law that requires reference to the Court of Appeal for determination in accordance with Section 295(2) of the Constitution.
“In the final analyses, it is my humble view that the present occupant of the office of the President of the Federal Republic of Nigeria, Dr. Goodluck Ebele Jonathan was sworn-in as Commander-in-Chief of the Federal Republic of Nigeria after the death of Alhaji Umar Musa Yar’Adua in 2010, the issue of whether he is deemed as having been elected in the first instance, by the said oath of office, imposes a substantial question of law, in the sense that no such situation existed or occurred in the history of this country, and therefore, there is no previous decision on the matter by courts in this country,” Justice Mohammed held.
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