MR. Cyriacus Njoku V. Dr. Goodluck Jonathan & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja (hereinafter referred to as the trial court), delivered on the 1st of March, 2013, wherein the learned trial judge dismissed the case of the appellant.

The facts are that the 1st respondent was elected as the Vice President of the Federal Republic of Nigeria and Umaru Musa Yar’adua was elected as the President of Nigeria in a joint election they stood, on the 21st of April, 2007. They were then sworn into their respective offices, and they began to discharge their various duties.

Upon the demise of President Umaru Yar’adua on the 5th of May, 2010, the 1st respondent was sworn into office, as the President of The Federal Republic of Nigeria, in accordance with section 146(1) of the 1999 Constitution of the Federal Republic of Nigeria, on the 6th of May, 2010, to complete the tenure of President Umaru Yar’adua.

After completing the term, the 1st respondent stood for election in April 2011, and he was elected as the President of the Federal Republic of Nigeria and was sworn in that capacity, on the 29th of May, 2011.

On the 16th of March, 2012, the Punch Newspaper carried a report of a statement credited to one Dr. Reuben Abati, the Senior Special Adviser on Media and Publicity to the 1st respondent, as saying that the 1st respondent is “in his first term in office”, thus implying entitlement for a second term as President, for the 1st respondent.

The appellant as the plaintiff in the trial court, who had nursed the ambition to contest for the office of the President of the Federal Republic of Nigeria under the umbrella of the Peoples Democratic Party (the 2nd respondent herein), felt aggrieved by the Punch Newspaper report, and so approached the trial court, against the respondents, by way of an Originating Summons on the 20th of March, 2012, supported by an Affidavit, a Further Affidavit and three exhibits. He sought for the following reliefs –

1. A DECLARATION that the tenure of office as President by Goodluck Jonathan i.e. 1st Defendant, began on May 6, 2010 when his first term began and his two terms shall end on May 29, 2015 after taking his second Oath on May 29, 2011.
2. A DECLARATION that by virtue of section 136(1)(b) of the Constitution of the Federal Republic of Nigeria no Person (including the 1st Defendant) shall take the Oath of allegiance and the Oath of office prescribed to in the Seventh Schedule to this Constitution more than twice.
3. AN ORDER OF INJUNCTION restraining the 1st Defendant from further contesting or attempting to vie for the office of the President of the Federal Republic of Nigeria after May 29, 2015 when his tenure shall by the Nigeria Constitution aforstated end.
4. AN ORDER OF INJUNCTION restraining the 2nd Defendant from further sponsoring or attempting to sponsor the 1st Defendant as candidate for election to the office of the President in the 2015 Presidential election after the expiration of his two-terms on May 29, 2015.
5. AN ORDER DIRECTING (Sic) the 3rd Defendant from accepting the name of the 1st Defendant where sponsored by his party again to run for the office of the President in the 2015 Presidential elections to be supervised and conducted by the 3rd Defendant.

The 1st and 2nd respondents as 1st and 2nd defendants at the trial court, filed counter-affidavits in respect of the Originating Summons and also filed Preliminary Objections, challenging the competence of the Suit, as disclosing no cause of action, the jurisdiction of the court to determine it and the locus standi of the appellant to institute it.

The trial court was of the view that the Preliminary Objections had merit and it upheld them. The Suit was therefore struck out for the absence of any cause of action and for the lack of locus standi on the part of the appellant to commence it. It still went ahead to determine the merit of the case, and at the end, found that the 1st respondent is in his first tenure of 4 years as the elected President of the Federal Republic of Nigeria and then went ahead to make consequential orders.

The Parties herein, have filed their written briefs of argument. The appellant’s brief dated the 4th of November, 2014, was filed on the 5th of November, 2014. The 1st respondent’s brief was dated and filed on the 14th November, 2014. The 2nd respondent’s brief was dated and filed on the 17th of November, 2014. The 3rd respondent’s brief was dated and filed on the 18th of February, 2015.

The appellant’s brief, settled by his Counsel O.O. Obono-Obla, identified five issues for determination and they are –

1. Whether the learned trial Judge was right when he held that the Appellant, a Citizen of the Federal Republic of Nigeria; a member and a Presidential Aspirant on the platform of the Peoples Democratic Party (the 2nd Respondent) does not have the locus standi to institute the action before the lower Court and the reliefs claimed by him in the Originating Summons, regard being had to the facts and circumstances of the case?

See Ground 1.

2. Whether the learned trial Judge was right when he held that the Appellant’s case did not disclose a reasonable cause of action? See Ground 2.
3. Whether the learned trial Judge was right when he held that the issue at stake before him was: ‘whether as a result of the death of President Yar’adua and the swearing in of the 1st Defendant who was till that date the Vice President as President for the unexpired period of 4 years tenure of the late President Yar’adua would mean a four years tenure as President by the 1st Defendant? See Ground 3.
4. Whether the learned trial Judge was right when he held that: ‘by the provisions of section 136(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a person shall not be qualified for election to be elected to such office at any two previous elections’ and did this not apply to the case of the 1st Respondent? See Ground 4.
5. Whether the learned trial Judge was right when he held that: ‘…It cannot be said that the 1st Respondent is running his second term or tenure as President. He is running his first term and can aspire to seek for nomination like any other qualified Nigerian to contest election for that office come 2015′? See Ground 5.

The 1st respondent’s brief was settled by A. Okeaya-Inneh SAN and he distilled two Issues for determination. They read –

(i) Whether the learned trial Judge was right in law and on the facts when he held that the plaintiff does not possess the locus standi to institute the action and that his suit does not disclose a reasonable cause of action. (Grounds 1 and 2 of the Notice of Appeal).