Nnamdi Felix / Abuja

Justice Ahmed Mohammed of a federal high court in Abuja on Monday referred a suit seeking constitutional interpretations on the eligibility of President Goodluck Jonathan to contest the next presidential election having inherited the remnant of the tenure of the late President Umar Musa Yar’Adua, to the Court of Appeal for determination.

The judge ordered for the referral in a ruling he delivered following an application for referral filed on the 28th of last November by two lawyers, Mr. Adejumo Ajagbe and Mr. Olatoye Wahab.

The duo had sued the Attorney General of the Federation, AGF, and the Independent National Electoral Commission, INEC, seeking to restrain them from allowing Jonathan to participate in next presidential election on the ground that his second and final term term would end on May 29 this year.

They had filed the application for referral to the appallate court while their substantive suit was being heard by the trial court wherein they urged the trial court to refer the interpretation of sections 135(2)(a) and (b) and 137(1) of the Constitution to the Court of Appeal. The AGF protested against the request for the referral.

The team of senior advocates of Nigeria who represented the plaintiffs were led by Mr. Mahmud Magaji, had argued that unless the Court of Appeal first resolves the substantial issue of constitutional law raised by the plaintiffs, in relation to the effect of sections 135(2)(a) and (b) and 137(1) of the Constitution and 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 his opposition to that application, the AGF, Mr. Bello Adoke, had challenged the plaintiffs’ locus standi, insisting that the suit was an abuse of court process as a similar case had been decided by an Abuja high court which decision is currently pending before the Court of Appeal, Abuja Division.

Justice Mohammed in his ruling rejected the submissions of the AGF and held that Mr. Adejumo Ajagbe and Mr. Olatoye Wahab have the locus standi to institute the action and that the suit did not amount to an abuse of court process as the AGF had argued.

The further went on to hold that the earlier case which the AGF referred Toni his submission was not the same with the instant suit. The judge also held that the fact that the case which is pending at the Court of Appeal was yet to be decided, 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 any court in this country,” the judge stated.