The dismissal followed an application by Ardo’s lawyer, Dr. Amuda Kannike (SAN), to withdraw the appeal. None of the parties objected to the application.
In dismissing the appeal, the panel of seven justices led by the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, said the appellant had no business joining in the appeal challenging Jonathan’s eligibility, as no law stopped him from participating in the just concluded convention of the party.
A PDP member, Cyriacus Njoku, had approached an Abuja High Court to stop Jonathan from re-contesting in 2015.
Justice Mudashiru, now elevated to the Court of Appeal, who presided over the matter at the High Court of the Federal Capital Territory had dismissed the suit the on ground that the court lacked jurisdiction to entertain it.
After the case was dismissed, Njoku approached the Court of Appeal to challenge the decision of the lower court. It was at the appeal court that Umar Ardo sought to join but was denied on the ground that he did not show a reasonable interest that could have warranted his joinder.
The appeal court also noted that he was not a party at the lower court, hence he could not join in the appeal. Not satisfied, Ardo approached the Supreme Court to challenge the decision.
When the matter came up yesterday, the CJN noted that the substantive appeal was still pending before the Court of Appeal and that what was before the apex court was an interlocutory appeal.
He said: “You are appealing against the ruling of the Court of Appeal that refused to join you. We cannot sit down here and step into the shoes of the Court of Appeal.”
The court further noted that Ardo was stalling the substantive appeal, adding that the apex court has no power to sit over an appeal pending at the court of appeal.
“You did not ask for leave to join rather you were asking for extension of time. The matter does not require many people to be joined as parties. Njoku’s interest can be used as every other person’s interest in the matter.
“Withdraw this appeal and allow the Court of Appeal to sit on the substantive appeal. You don’t need to be a party in the appeal,” the court held.
Meanwhile, a Federal High Court in Abuja has referred to the Court of Appeal for determination whether or not Jonathan is eligible to contest the next presidential election after adding the remainder of the tenure of the late President Umaru Musa Yar’Adua to the four years he would complete on May 29, 2015.
The decision was contained in a ruling delivered yesterday by Justice Ahmed Mohammed on an application for referral filed on November 28 last year by two lawyers, Adejumo Ajagbe and Olatoye Wahab.
Agbaje and Wahab 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 term would end on May 29 this year.
Before the substantive suit could be decided, the plaintiffs filed an 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.
Plaintiffs’ lawyer, Mahmud Magaji (SAN), had argued that unless the Court of Appeal first resolved the substantial issue of constitutional law raised by his clients, 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 was 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.
The AGF, in objecting to the referral, said the plaintiffs lacked locus standi 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 the plaintiff in that case (Njoku) lacked locus standi to challenge Jonathan’s qualification to stand for re-election.
In his ruling yesterday, Justice Mohammed refused the AGF’s objection and held that the plaintiffs have the standing to file the suit.
He also held that the suit did not amount to an abuse of court process because parties in this case were different from the one decided by Justice Oniyangi at the FCT High Court.
Justice Mohammed 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.
He said: “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 Umaru Musa 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 Jonathan was sworn-in as Commander-in-Chief of the Federal Republic of Nigeria after the death of 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.”