By Ikechukwu Nnochiri
ABUJA- In a dramatic twist of events, the man who went to court to secure an order barring President Goodluck Jonathan from vying for presidency in 2015, Mr. Cyriacus Njoku, Wednesday, applied to withdraw the suit.
The plaintiff made the application on a day an Abuja High Court struck out a motion that was filed before it by President Jonathan, seeking the extension of time within which his lawyers could file his memorandum of appearance and counter affidavit in opposition to the suit dated March 20.
This was even as the Peoples Democratic Party, PDP, has challenged the competence of the suit, insisting that President Jonathan could contest the 2015 election if he so wishes.
When the matter was called up for hearing yesterday, counsel to the plaintiff, Mr Ugochukwu Osuagwu, informed presiding Justice Mudashiru Onyangi that his client had accepted to explore the possibility of an out of court settlement of the case.
He told the court that the PDP ward in Zuba, Gwagwalada Area Council of Abuja, where his client belongs, persuaded him to discontinue further hearing on the case, though he stressed that the plaintiff would not hesitate to re-activate the case should the negotiation process crumble.
Nevertheless, the plaintiff urged the court to in the meantime, dismiss President Jonathan’s application for extension of time on grounds that the motion was legally incompetent since an affidavit that was attached in support of the motion was sworn to at the Federal High Court Registry instead of the FCT High Court registry where the substantive originating summon was entered.
Likewise, Njoku noted that both the counter affidavit and memorandum of appearance that was filed on behalf of Jonathan, were neither exhibited nor attached to the motion as stipulated in Order 12 of the High Court Procedure Rules.
Consequent upon his arguments, Justice Onyangi accordingly struck out the application, even as he yesterday fixed May 30 for possible report of settlement between all the parties.
Whereas President Jonathan and the PDP were represented in court yesterday, the Independent National Electoral Commission, INEC, which was joined as the 3rd defendant in the suit, was not represented.
It would be recalled that the plaintiff who said he intends to contest presidency in 2015, approached the high court, asking it to determine “Whether Section 135(2) of the Constitution, which specifies a period of four years in office for the President, is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes the position of President by operation of law, as in the case of Dr. Goodluck Jonathan.
As well as, “whether Section 137(1) (b) of the Constitution, which provides that a person shall not be qualified for election to the office of President, if he has been elected to such office at any two previous elections, applies to the first defendant, who first took an oath of office as substantive President on May 6, 2010 and took a second oath as President on May 29, 2011.”
Consequently, he sought a declaration that ‘the President’s tenure of office 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 of office on May 29, 2011; and by virtue of Section 136 (1) (b) of the Constitution, no person (including the first defendant) shall take the oath of allegiance and the oath of office prescribed to in the Seventh Schedule to this Constitution more than twice.
He equally beseeched the court for an order of injunction restraining President Jonathan from further contesting or attempting to vie for President after May 29, 2015 when his tenure shall by the Nigerian Constitution afforested ends.
As well as for an order of injunction restraining the PDP from further sponsoring or attempting to sponsor the first defendant as candidate for election to the office of the President in the 2015; and an order directing the third defendant, INEC, from accepting the name of the first defendant where sponsored by his party again to run for president in the 2015 presidential election to be supervised and conducted by the third defendant (INEC).
Even though President Jonathan earlier challenged the suit which he branded “frivolous and highly vexatious,” the PDP, through its national legal adviser, Mr. Victor Kwon, yesterday, adduced reasons why the case should be dismissed in its entirety.
In its preliminary objection, PDP queried the locus-standi of the plaintiff to seek such reliefs against Jonathan, saying “the interest the plaintiff claims in bringing this suit is one which he shares with millions of other members of the 2nd defendant in all geopolitical zones of the country.”
In an affidavit deposed to by one Nanchang Ndam, the party argued that: “neither the PDP nor any political party has started selling or issuing nomination forms for the 2015 presidential elections and the plaintiff has not bought or obtained any such form from the second defendant or any other political party.
“Contrary to the depositions in paragraphs 4, 7 and 8 of the said affidavit, the first defendant will only be completing his first term of office as President of the Federal Republic of Nigeria in May 2015.
“The first defendant has contested election as President of the Federal Republic of Nigeria only once, and that is at the April 2011 general election.
“If the first the defendant vies for President in 2015, the plaintiff and other eligible Nigerians would not be denied the opportunity of taking a shot at the presidency in 2015 as they would join the first defendant in the contest whether within the auspices of the second defendant or on the platform of other political parties.
“Contrary to the depositions of paragraph 3 of the said affidavit, the third defendant (INEC) has not given notice of poll for the 2015 general elections and so nominations have not opened for those seeking to contest the office of President in the election.
“It is only in 2014 or thereabouts when the third defendant (INEC) gives notice of poll enabling political parties, including the PDP, to nominate their candidates for the presidential elections that it would be known whether the plaintiff or the first defendant would vie for President in 2015. It is in the interest of justice to grant this preliminary objection,” the party added.
Meanwhile, President Jonathan has described the plaintiff as a joker, saying he was confident that the matter would be resolved in his favour.
The President who stated this while reacting to the decision of the litigant to withdraw the suit, said the provisions of the 1999 constitution pertaining to his chances to contest the 2015 election were clear.
Speaking through his lawyer, Chief Ade Okeaya-Inneh, SAN, Jonathan said: “It is illogical for the plaintiff or anyone to claim that a president who acted in an acting capacity has been sworn in as a substantive president twice. That is not our understanding of the law and indeed the provisions of the constitution that the plaintiff is seeking a review of are not by any stretch of the imagination ambiguous.
“The plaintiff said he wants to consult with his ward with a view to settling the matter. Well that is fine but how do you settle a constitutional matter? The only way to settle a constitutional matter is by interpretation in a court of law or by amendment in parliament. lf the plaintiff does not intend to pursue his case, he should withdraw it. On our part, we are extremely confident of our defence and we are fortified by the extant and clear provisions of the constitution in this regard.”
Dismissing the suit as an academic exercise, Jonathan in a15-paragraph counter affidavit he filed before the court, argued that the plaintiff failed to disclose any reasonable cause of action.
According to an affidavit by his lawyer, “When my law firm was briefed by the 1stdefendant to represent him in his action, I, together with Mr Mattew Aikhionbare (senior special assistant to the President) and Dr Reuben Abati (special adviser on media and publicity to the President) meticulously went through the 11-paragraph affidavit of the plaintiff in support of his originating summons.
“The 1st defendant is currently doing his first term of 4 years in office as the president of Nigeria as provided by the 1999 constitution as amended. The 1st defendant status and position is formidably backed by the 1999 constitution.
“The constitution of Nigeria only makes provisions for a president to contest for not more than 2 terms of 4 years each. The constitution recognizes the Executive President’s tenure of office to be 4 years.
“I was informed by Dr Reuben Abati on the April 4, 2012 at about 5.30 pm in his office and I verily believe that. ‘The 1stdefendant has not indicated or announced anywhere whether in words or in writing that he will contest for the presidential elections to be conducted in 2015.
“The Late P resident Umaru Musa Yar’Adua contested and won the presidential elections conducted in 2007 for a one term of four years. He was the president from May 29, 2007 until sometime in May 2010 when he passed on. Yar’Adua’s four years was to end in 2011.’
Jonathan further told the court that on May 6, 2010, he was sworn in as the president after the demise of the Late President Yar’Adua thereby completing Yara’Adua’s 12 months of the 4 years tenure, stressing that this is the first time he is coming to power as the president of Nigeria through a conducted election wherein he was voted as the presidential candidate of his party, the PDP.
The President told the court that the plaintiff neither attached copies of his recent tax clearance certificate from the Federal Inland Revenue Service, FIRS, nor his PDP membership card as proof of who he claimed to be.
Remarkably, a group under the aegis of the Committee of Concerned Northern Professionals, Politicians, Academics and Businessmen (CCNPPAB), had on Tuesday, expressed their resolve to join the in suit which was withdrawn yesterday.
“The current constitution is very clear in the assertion that whichever President serves two terms in office is not eligible for another term of office. It explained that a first impression one gets from the reading of the constitution is that for the purposes of tenure, qualification and disqualification, the President and the Vice President are considered as one. Based on this, President Jonathan will be considered in law to have served his first term between 2007 – 2011,” the group insisted.