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.
The controversy over whether or not the candidate of the Peoples Democratic Party 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 of the Constitution, may never be answered.
The party had contented, among others, that the 1st petitioner 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. Justice Garba said the law did not require the person, who won an election or his/her political party, whose victory is being challenged , to query the qualification of his challenger , but to provide counter-facts and figures in defeat of the petitioner’s claims.
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 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.” “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.”
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