‘Why tribunal declined to rule on Atiku’s citizenship’ ~ Nationnewslead

The controversy over whether former Vice President Atiku Abubakar is a citizen of Nigeria or not remains unresolved as the Presidential Election Petition Tribunal declined to rule on it. ERIC IKHilAE reports.

The controversy over whether or not the candidate of the Peoples Democratic Party (PDP) in the last presidential election, Atiku Abubakar, is a Nigerian by birth and was qualified to contest the election in the face of the provision of Section 131(a) of the Constitution, may never be answered.

The issue, which formed one of the grounds on which the All Progressives Congress (APC) challenged the competence of the petition by Atiku and the PDP, could only be answered in the future, when ex-Vice President, Atiku contests and wins an election.

These are the inferences from the decision made on the issue, which formed part of the judgement delivered on the petition on September 11, 2019 by the Presidential Election Petition Court (PEPC).

The APC (listed as the third respondent) had, in its reply to the petition, challenging the return of its (APC’s) candidate, President Muhammadu Buhari, as winner of the last presidential election, queried the competence of the petition on the grounds that Atiku was not a valid candidate.

The party had contented, among others, that the 1st petitioner (Atiku) had no locus standi to present the petition, because he was not qualified to contest the election on the grounds that he is not a citizen of Nigeria by birth.

But, in its decision on the issue, contained in a ruling on the petitioners’ motion of May 13, 2019 and the main judgment, the PEPC held that the question about whether or not a person, who lost an election, was qualified to contest the election did not fall within its jurisdiction.

The court said the issue is not captured in the Electoral Act (under sections 137 and 138), as it neither falls under the grounds on which a petition could be brought against an election nor could it be categorised as any of the issues a respondent to a petition could canvass. It added that the court’s jurisdiction as captured under Section 239 of the Constitution, also did not cover it.

The Presiding judge, Justice Mohammed Garba, in the lead ruling on the motion dated May 13, 2019, which formed one of the eight rulings delivered by the court on September 11, before it rendered the main judgment, held that a respondent to a petition was only required under the Electoral Act, to adduce facts to disprove the petitioner’s claims in challenge of the outcome of the election it won.

Justice Garba said the law did not require the person, who won an election or his/her political party, whose victory is being challenged (the respondent), to query the qualification of his challenger (the petitioner), but to provide counter-facts and figures in defeat of the petitioner’s claims.

He said in this case, the respondents were expected to properly, distinctively and clearly set out facts and figures, to disprove the claims of the petitioners in the petition, challenging the return of the 2nd respondent (Buhari) as the winner of the election

Justice Garba added: “The facts and figures sought to be disproved by the reply (of the respondents) are therefore, those that are tied to the averments of the petitioners, on why the 2nd respondent should not have been returned as the winner of the election.”

It is difficult to appreciate how the qualification of the 1st petitioner (Atiku) to contest the election will add value or impact to the requirements in the 3rd respondent’s reply against the petitioners’ grouse against the return of the 2nd respondent, who was sponsored by the 3rd respondent for the said election, under challenge by this election petition.”

Justice Garba later referred to the provisions of sections 137 and 138 of the Electoral Act, and Section   239 of the Constitution in determining the persons, who are entitled to present election petition;  grounds on which election could be challenged and the jurisdiction of the Court of Appeal to hear and determine any question as to whether any person has been validity elected to the office of President or Vice-President.

He, therfore, held that, by the provision of Section 137(2) of the Electoral Act, a person, whose election is complained of, is referred to as the respondent; while Section 239(1) of the Constitution confers on this court the jurisdiction to determine whether a person has been duly and validly elected to the office of the President or Vice President.

Justice Garba said the provision of Section 239(1) of the Constitution limits and circumscribes “the jurisdiction of the court to the determination of the issue whether the person, whose election is challenged, was validly elected. It does not extend to whether any of the petitioners, who is challenging the election or return of the respondent, was qualified to contest the election.”

The judge added that despite the fact that the petitioners pleaded that the 1st petitioner has the right to be voted for and returned in the election, to the office of the President of the Federal Republic of Nigeria, the jurisdiction of the court cannot be enlarged beyond what is provided under Section 239 of the Constitution which, if read along with Section 137(2) and 138(1)(a) of the Electoral Act, did not allow the court to extend its jurisdiction even with the consent or acquiesce of   parties.

He said: “It is accordingly my view that the issue of qualification or disqualification of the 1st petitioner to contest the election is not also a ground for the challenge of the election or return of the 2nd respondent herein and not a defence or reply to the petition.”

Justice Garba proceeded to strike out the paragraphs in the 3rd respondent’s reply to the petition, where it challenged the qualification of the 1st petitioner to have contested the election in question.

In the main judgment justice Garba, while rounding off his resolution of the first and second issues, said:   “Before leaving the issues, the learned senior counsel for the 3rd respondent had argued what he termed ‘subsidiary issue’ under the subhead – ‘non-qualification of the 1st petitioner,’ – at page 20 of the 3rd respondent’s final address.

“All that needs to be said is that the subsidiary issue and the arguments thereon go to no issue, since the paragraphs of the 3rd respondent’s reply to the petition on the 1st petitioner’s qualification to contest the election have been struck out for being incompetent in the ruling by the court on the petitioners’ motion of 13/5/20 19, delivered earlier.

“As a consequence, all the evidence elicited under cross examination by the 3rd respondent’s learned senior counsel on the issue goes to no issue in the absence of the material and relevant pleadings it could be based on.”

The APC had, in furtherance of its argument that Atiku was not qualified to contest the election and that the PDP had no candidate in the election by allegedly fielding a candidate, who is not a Nigerian by birth, stated that the ex-Vice President was born on 25th November, 1946 in Jada, Adamawa in Northern Cameroun and is therefore a citizen of Cameroun by birth, who later became a Nigerian by virtue of the plebiscite held in 1961.

It added that “a plebiscite was held in British Cameroun in 1961 to determine whether the people preferred to stay in Cameroun or align with Nigeria. Northern Cameroun chose to stay in Nigeria and the transition tool place on 1st June 1961.

“It is the position of the 3rd respondent that it was as a result of that plebiscite that Northern Cameroun, which included Adamawa, became part of Nigeria and by derivation the 1st petitioner became a citizen of Nigeria, but not birth,” the APC said in some of the paragraphs which the PEPC struck out.

 Useful legal provisions:

Sections 137 and 138 of the Electoral Act 137 – 1) An election petition may be presented by one or more of the following persons –

(a) a candidate in an election; (b) a political party which participated in the election.

(2) A person whose election is complained of is, in this Act. referred to as the respondent.

(3) If the petitioner complains of the conduct of an electoral officer, a presiding or returning officer, it shall not be necessary to join such officers or persons, notwithstanding the nature of the complaint and the commission shall, in this instance, be:

(a) made a respondent; and

(b) deemed to be defending the petition for itself and on behalf its officers or such other persons.

138- (1) An election may be questioned on any of the following grounds, that is to say

(a) that a person, whose election is questioned was, at this time of the election. not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

(2) An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election, but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.

Section 239 of the Constitution:

239 – (1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether –(a) any person has been validity elected to the office of President or Vice-President under this Constitution; or

(b) the term of office of the President or Vice-President has ceased; or

(c) the office of President or Vice-President has become vacant.

(2) In the hearing and determine of an election petition under paragraph (a) of subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court Appeal.