President Goodluck Jonathan has asked the Court of Appeal, sitting in Lagos, to set aside the Federal High Court order, which restrained him from deploying soldiers to assist the police in providing security during the general elections, which is starting tomorrow across the country.
The judge at the lower court, Justice Ibrahim Buba, had in the suit by a House of Representatives member, Femi Gbajabiamil held that the President cannot deploy soldiers without the National Assembly’s approval.
Other respondents in the suit were the Chief of Defence Staff, the Chief of Army Staff, the Chief of Air Staff, the Chief of Naval Staff and the Attorney-General of the Federation. President Jonathan through his counsel, Deacon Dele Adesina, SAN, in the appeal, is praying the appellate court, to dismiss the judgement of the lower court in its entirety for lack of merit.
Jonathan in his six grounds of appeal is contending the lower court’s decision did not represent the state of the law, “particularly his lordship decision regarding the validity of the originating process is not correct.” Adesina faulted the lower court’s reliance on the recent election petition appeal relating to the issue of the deployment of troops, which was yet to be pronounced upon by the apex court.
He is contending that trial judge erred by “dismissing the objection filed by the 1st and 6th defendants and assumed jurisdiction when he held that the plaintiff sought and obtained leave to issue and serve the originating summons outside Lagos State, when indeed the grounds of the objection was non-compliance with the provisions of Section 97 of the Sheriff and Civil Process Act.”
He argued that by virtue of the “Provisions of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the state in which it was issued shall in addition to any other endorsement or notice required by the law of such state have endorsed thereon a notice indicating that the originating process is to be served out of the state and in which state it is to be served. It is settled law that compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is mandatory.”
According to him, the trial judge erred in law when he assumed jurisdiction and proceeded to enter judgment when indeed, he lacks the jurisdiction to do so. He argued that the originating process having failed to comply with the mandatory provisions of the Sheriff and Civil Process Act was not issued according to due process and therefore, incompetent and liable to be struck out.
“A competent court cannot sit on an incompetent suit. The law is settled that where a court lacks jurisdiction, its proceedings no matter how well conducted and its judgment or orders are a nullity,” he argued. Another ground of the appeal, it that the trial judge erred when he held that the plaintiff had the plaintiff at the lower court had the requisite locus standi to institute the action, as it was a matter of public litigation.
On the particulars of this ground, he said “The Plaintiff is the Minority Leader in the House of Representatives who had canvassed thse same arguments and reliefs on the floor of the House of Representatives and lost to the majority. The members of the House of Representatives are elected by the citizens to represent their interest and having lost to the majority decision in the House, he has removed this matter from the purview of public interest litigation. The appellant, therefore, wants the court to set aside the judgement of the lower court, or in the alternative, dismiss the entire suit for lack of merit.