Though the Federal High Court merely struck out the suit challenging the citizenship of former Vice President Atiku Abubakar on technical grounds, analysts argue that facts before the court suggest that the suit was just an academic exercise, Alex Enumah writes
It was a huge relief for former Vice President Atiku Abubakar when a Federal High Court in Abuja last week struck out the suit challenging his citizenship of the Federal Republic of Nigeria.
Delivering judgment in a suit filed by a non-governmental organisation, Incorporated Trustees of Egalitarian Mission for Africa (EMA), in 2019, to challenge Atiku’s eligibility to contest for president, Justice Inyang Ekwo struck out the suit for lacking merit. He described the plaintiff as a “busy body,” who had no locus standi to query the citizenship of the former vice president.
In the suit marked: FHC/ABJ/CS/177, the plaintiff had challenged Atiku’s eligibility to run for president on the premise that he is not a Nigerian citizen by birth. It argued that considering the provisions of sections 25 (1) & (2) and 131(a) of the constitution and the circumstances surrounding his birth, the former vice president cannot contest for the top office.
But in striking out the suit, Justice Ekwo held that the NGO, having been registered under Company and Allied Matters Act (CAMA) with special functions, cannot jump into public interest litigation that is not part of its objectives. He cautioned NGOs to refrain from filing frivolous applications targeted at harassing politically-inclined Nigerians.
He concluded that since the plaintiff was bereft of locus standi, the court lacked the requisite jurisdiction to entertain the case.
EMA had joined the Peoples Democratic Party (PDP), the Independent National Electoral Commission (INEC) and the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami (SAN), as co-defendants in the suit.
At the court session, Atiku’s counsel, Mr. Eyitayo Jegede (SAN), prayed the court to dismiss the suit. He argued that the matter was already stale as it was tied to the 2019 election, in which his client contested election, challenged the poll and lost.
Aligning himself with Jegede, Adedamola Falokun, PDP’s counsel, said he had also filed a notice of preliminary objection.
“I stand in alignment with the learned SAN that this matter is stale. They filed this before the 2019 election that the first defendant (Atiku) should not be cleared.
“The first defendant had been cleared. He contested and lost in the election. And you are still talking about 2019 when we are in 2021 and in a few days, we will be in 2022,” he said.
He urged the court to dismiss the suit in its entirety and award punitive costs against the plaintiff.
However, the plaintiff’s counsel, Akinola Oladimeji, said the suit is not a pre-election matter but to determine Atiku’s citizenship. He insisted that even though Atiku was said to have been born in Nigeria, he was not a Nigerian.
“For the purposes of clarity, a pre-election matter is filed by an aspirant in an election. The plaintiff is not an aspirant. It is only seeking an interpretation into the questions raised,” he said
On his part, Malami, in an affidavit to support the suit, said Atiku was not a Nigerian citizen by birth and therefore, not eligible to run for president in Nigeria.
But the Adamawa State Government, whose prayer was granted to join the suit, insisted that Atiku is a citizen of Nigeria, and therefore, eligible to run for the office of the president.
The state Attorney-General and Commissioner for Justice, Afraimu Jingi, through his lawyer, LD Nzadon, said the suit also threatened the right of not just the former vice president to contest the office of president, but that of the citizens of Nigeria of Adamawa State origin in 12 out of the 21 local government areas in the state.
According to him, “to disenfranchise the citizens of the 12 local government areas of Adamawa State in relation to the office of the Federal Republic of Nigeria, is to discriminate against them contrary to Section 42(1)(a), (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
“The government and people of Adamawa State have a greater interest in this suit than the 4th respondent (AGF),” Nzadon told the court.
Atiku was born in Jada in the present Adamawa State. He had all his education in Nigerian schools and served in the Nigerian Customs Service for 20 years, until he retired.
He was presidential aspirant of the defunct Social Democratic Party (SDP) in 1992, was elected governor of Adamawa State in 1999, before he was nominated and elected vice president for eight years.
In 2007 and 2011, he contested for the presidency and lost to Presidents Umaru Musa Yar’Adua and Goodluck Jonathan, respectively.
For all the over 70 years he has lived in Nigeria, no one ever raised or questioned his citizenship until 2019 when the ruling All Progressives Congress (APC) raised the issue as a response to his petition at the Presidential Election Tribunal to challenge the re-election of President Muhammadu Buhari.
APC was said to have feared that Atiku had a watertight petition and evidence to remove Buhari from office.
The party, in its response, claimed that the former vice president was not a citizen of Nigeria by birth and he ought not to have been allowed to contest the election.
This later prompted EMA to file a suit at the Federal High Court to challenge Atiku’s citizenship and eligibility to contest elections in Nigeria.
Observers believe that Atiku’s case has a resemblance with the Shugaba Darman Vs federal government, which happened in the 1980s.
Precisely on January 24, 1980, in the heydays of the administration of the defunct National Party of Nigeria (NPN) in Second Republic, operatives of the Nigerian Immigration Service, acting on an order from the then Minister of Internal Affairs, Bello Maitama, arrested and summarily deported the Borno State House of Assembly Majority Leader, Alhaji Abdurahman Shugaba Darman to Chad Republic on the pretext that the government had discovered that he was not a Nigerian but a Chadian.
Darman was a politician of note and very charismatic; a man who attracted large crowds at political rallies due to his oratory and stout criticism of the NPN’s administration. He was also a grassroots man and stalwart of the opposition Great Nigerian Peoples Party (GNPP) and seen as the de facto governor, due to his influence in the government. The old Borno State was the stronghold of the GNPP while the federal government was controlled by NPN.
While Darman was in a Chadian village, his political party, the GNPP instituted a legal action, challenging his illegal deportation. In its claim, the federal government brought an old woman who claimed to be the mother of Darman. The woman testified that she was the biological mother of Darman and wept profusely, claiming that she wanted her lost son back to his fatherland of Chad.
But Darman denied ever knowing the woman, insisting that his mother was alive and lived in Maiduguri and was a well-known person.
In the end, the court revoked Darman’s deportation order and even awarded him the sum of N350,000 damages. The government also lost the appeals in both the Court of Appeal in Kaduna and the Supreme Court.
To properly understand the instant case, Atiku was born November 25, 1946, before Nigeria’s Independence in 1960 in Jada town in Ganye Local Government Area of Adamawa State. This area was never part of Nigeria legally until the February 1961 plebiscite in which the people of the then Northern Cameroon voted to join Nigeria. Atiku’s father was from Jada Village of the old Northern Cameroon.
After the plebiscite that made Northern Cameroon part of Nigeria in 1961, all the people of Northern Cameroon, whether born before or after 1960, were seen as Nigerians and all the communities therein became indigenous to Nigeria. Therefore, the legal implication of the 1961 plebiscite is that all communities of the “British Cameroon” are deemed to be communities indigenous to Nigeria. In fact, the people in Northern Cameroon were not part of the Republic of Cameroon, but they belonged to a geographical territory controlled by the British Colonial masters.
The question many observers are asking is: Can someone born before independence outside Nigeria in a community not indigenous to Nigeria become a Nigerian by birth? NO! But Atiku’s case is different.
To further buttress the argument canvassed above, Section 10 of the 1963 Constitution is to the effect that those who became Nigerians by virtue of the February 1961 plebiscite are deemed to be citizens of Nigeria by birth and their communities are indigenous to Nigeria.
Mr. Festus Ogun of the Olabisi Onabanjo University, Ago Iwoye, Ogun State, argued that if votes from Atiku’s areas can be counted as valid in elections, and if those areas are recognised by the Constitution under Section 3 and revenue can be generated from that same area, then it is mind-boggling how anyone from there cannot contest in an election.
“From the above, it requires little or no imagination to detect that Atiku and in fact, anyone from the communities that joined Nigeria by plebiscite in 1961 are citizens of Nigeria by birth. This means that they are eligible to run for the office of the President of the Federal Republic of Nigeria under Section 131(a) of the 1999 Constitution and any political office, whatsoever, without any hindrance once other constitutional requirements are met.
“An attempt to twist history for the satisfaction of political prejudices should not be allowed to stand. If the votes of those “affected” areas can be counted as valid in elections, if those areas are recognised by the Constitution under Section 3, if revenue can be generated from that same area, why then should they be treated as aliens in their country?” he asked.
