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In The Supreme Court
of
On Friday, the 2nd day of July
2004
Before Their
Lordships
S.C. 199/2003
Between
And
Judgement of the Court
Delivered by
Uthman
Mohammed J.S.C
On
19th of April, 2003 presidential election was held in
The appellant who lost the
election filed this petition at the Court of Appeal and prayed for the
following reliefs:
"(i)
A declaration that as at the 19th April, 2003 when the
presidential election was held in Nigeria, Chief
Olusegun
Obasanjo, the 1st respondent, was not
qualified to contest the election.
(ii)
An order invalidating the return of Chief
Olusegun Obasanjo, the 1st
respondent as the President - elect in the April 19th 2003
presidential election.
(iii)
An order commanding the 2nd respondent to conduct
another presidential election.
(iv)
An order directing the Chief Justice of Nigeria to take over as the
Head of State of Nigeria for a period of 3
months within which period he would re-organise
the 2nd respondent and conduct
a free and fair election.
(iv)
A
declaration that the purported declaration of the 1st respondent as the
winner of the 19th April, 2003 election
is unconstitutional, null and void."
In response to the above
petition, the 1st respondent stated that no election was held in
The Court of Appeal heard
evidence from the petitioner/ appellant, the 1st respondent and
Alhaji Mohammed Dikko
Yusuf who was a member of the Supreme Military Council from 1975 to 2nd
October, 1979. After hearing addresses
from
counsel the court adjourned the petition for judgment. In a very well
considered judgment, written by Isa Ayo Salami, J.C.A (concurred with by
Oguntade, J.C.A (as
he then was), Mahmud Mohammed, Nsofor and Tabai,
J.J.C.A) the petition was dismissed.
Dissatisfied with the
judgment, the petitioner, armed with nine grounds of appeal, filed this
appeal and questioned the merit of the Court of Appeal's decision. Mr. J. C.
Ezike, learned counsel for the appellant,
identified five issues for the determination of the appeal. I have carefully
gone through those issues and it is plain that one single issue will be
quite adequate for the determination of this appeal. I therefore agree with
learned counsel, Mr. Adebayo Adenipekun who
wrote the brief for the 1st respondent, that
the only question which arises for determination is:
"Whether
or not the appointment of the 1st respondent in 1976 under a
military regime as the Head of State following the death of General
Murtala Muhammed
amounted to an election within the meaning of
Section 137 of the 1999 Constitution."
Before I consider the
respective submissions of counsel representing the parties in this appeal it
is pertinent to state the undisputed facts which gave rise to this petition.
On the 13th of February, 1976, the Head of State and
Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria,
General Murtala Mohammed was assassinated in an
abortive coup. At that time the 1st respondent was the Chief of
Staff, Supreme Headquarters, the second in command to the Head of State and
the second most senior officer in the army.
As soon as the death of
General Murtala Mohammed was
confirmed, the Supreme Military Council, in
pursuance to the provisions of
Section 8(d) of the Constitution
(Basic Provisions)
Decree No 32 of 1975,
met and appointed the 1st respondent as the Head of State and
Commander-in-Chief of the Armed Forces of the
Federal Republic of Nigeria. In 1999 the 1st
respondent was elected President of the
Federal Republic of Nigeria. He completed the
four years term and contested election for the
second term of another four years last
year. This petition was filed by the appellant when
the 1st respondent was declared the
winner of the 2003 presidential
election.
Mr. Ezike
for the appellant opened his submission with
reference to
Section 137(1) (b) of the 1999
Constitution which provides that a
person shall not be qualified for election to the office
of President if he has been
elected to such
office at any two previous elections. Mr.
Ezike argued that by virtue of
Sections 6(2) and 8(d)
of the Constitution (Basic Provisions) Decree No
32 of 1975 and
Section 26
of the Interpretation Act, 1964 the
"selection" of the 1st
respondent as Head of State in 1976 was an
Learned
counsel referred to the definition of the
word "election" in Black's Law
Dictionary,
6th edition thus:
"The act of choosing or
selecting one or more from a
greater number of persons, things, courses or
rights.
The
selection of one person from a specified class to
discharge certain duties in a state, corporation
or society... Election ordinarily has reference to a choice
or selection by electors."
Mr. Ezike
further submitted that Section 26 of
the Interpretation Act has made it mandatory for the Supreme Military
Council to act democratically wherein the section provides:
"Where a body established by
an enactment comprises three or more persons, then:
(a)
any act which the body is authorised or
required
to do may be done in the name of the body by a
majority of those persons or of a quorum of
them, and
(b)
in any vote taken at a meeting of the
body, the
person presiding when vote is ordered shall have
casting vote whether or not he also has a
deliberative vote."
Learned counsel argued that
since the Supreme Military Council was made up of more than 3 people the
unanimous selection or appointment of the 1st respondent as Head
of State in the name of such body amounts to his election to the office of
President. I must pause here to point out that
Section 26 of the Interpretation Act
was wrongly quoted by the learned counsel. It is
Section 27 of the Act and not 26
which provides for the procedure of voting at a meeting of statutory bodies.
I honestly cannot see how the issue of voting at a meeting would support an
argument that the 1st
respondent was elected in 1976 when he was appointed the Head
of State and Commander-in-Chief of the Armed Forces by the Supreme Military
Council.
Mr. Ezike
picked hole on the finding of the Court of Appeal where it held that:
"election
goes beyond merely voting as it is a process inclusive of delimitation of
constituency, nomination, accreditation, voting itself, counting, collation
and return or declaration of result."
He also referred to the
judgment of the court below in which it concluded that for an election to
qualify for consideration under
Section 137(l)(b) it must respectfully be
such which was conducted under the provisions of
Section 132 of the 1999 Constitution.
Counsel thereafter, in the appellant's brief, argued that the Court of
Appeal was wrong because it is not all elections even under the 1999
Constitution that must be conducted by an "independent body" (like the
INEC), Mr. Ezike pointed out that
Section 50 of the 1999 Constitution
provides that:
"(a)
President and Deputy President of the Senate... shall be elected by
the members of the House from among themselves; and
(b)
a speaker and deputy speaker of the House
of Representatives... shall be elected by members of that House from among
themselves."
Learned counsel further
submitted that elections vary according to circumstances and demand. Thus
while delimitation of constituencies may be important to Senators and
members of the Houses of Representatives/Assemblies,
Section 132(4) of 1999 Constitution
says that:
"For the purpose of an
election to the office of President, the whole of the federation shall be
regarded as one constituency."
Mr. Ezike
argued that the Supreme Military Council is the constituency of the 1st
respondent for the purpose of succeeding to the office left vacant after the
death of General Murtala Mohammed. Therefore the
election by the Supreme Military Council qualifies as "any" election. He
supported this submission by reference to the case of Fisher v
He also referred to the case
of Ejilemele v
Opara (2003) 9
NWLR (Pt. 826) 536 at 559 where
Niki Tobi,
J.S.C, held that a person
can be recognised as the Head of a family "by
election by members of the family." Mr.
Ezike further elaborated that corporate bodies,
clubs associations, town unions and students
unions also hold elections just like the
Senate and Houses of Representatives and
Assemblies. Mr. Ezike concluded that the Supreme
Military Council held one on 14th
February, 1976.
I have endeavoured to
reproduce the major submissions of Mr.
Ezike
in order to show the stand of his argument that the 1st
respondent was disqualified to contest Presidential election in 2003
on the ground that he had been elected to the
office of President in two previous
elections held in 1976 and 1999.
As is expected, all the
learned counsel who participated in this appeal opposed the submission of
Mr. Ezike and urged that the appeal be
dismissed. Chief Afe
Babalola, leading a team of lawyers for the 1st
respondent, submitted that the 1st respondent was nominated and
appointed as Head of Military Government in 1976. He was not elected. The
definition of the office he was elected as President in 1999 and 2003 is in
the 1999 Constitution. He
referred to the conclusion in the brief filed for the 1st
respondent which reads as follows:
“Military rule is usually
anti-democratic, repressive and
full of retroactive legislation. Democracy on the
other hand is the government of the
people, by the people and for the people.
In other words, such government must have
been elected by a majority of the people
whom the government is meant to rule.
The people must have been free to
vote. They must on the same token, possess
equal rights. As soon as the people feel
they have outlived their usefulness, they vote them out
with the ease with which they brought them in by
taking free vote and accepting the verdict
of the majority”
Mr.
Eghobamien, SAN in his submission, pointed out that the Supreme
Military Council was not the whole Federation; neither did they represent
the will and aspiration of the entire electorate. The election of the
President must involve the whole country, anything short of that is bereft
of the intent and purpose of Section
132(4) of the Constitution.
Learned counsel for the 4th
respondent, Roland Otaru, gave a list of
relevant facts which establish that the provisions of
Section 13,7(1
)(b) of 1999 Constitution is not applicable in the circumstances of this
case as the 1st respondent's appointment in 1976 cannot by any
stretch of imagination be referred to as previous election within the
contemplation and intendment of the Constitution of the Federal Republic of
Nigeria, 1999. Those facts which the learned counsel referred to are listed
below:
(a)
The 1st respondent was
appointed by the SMC
on the 14th day of February, 1976 as Military Head of State and
Commander-in-Chief of the Armed Forces of the Federal Republic of
Nigeria.
(b)
There was no election held by the SMC before the 1st
respondent was appointed.
(c)
Elections in democratic societies like ours must undergo some
processes or procedures like delimitation of constituencies, nomination,
accreditation, voting, counting, collation and return or declaration of
result.
(d)
The candidates nominated to contest the election
must be sponsored by their respective political
parties.
(e)
Section 320 of the
Constitution of the
The key word in this appeal is
"election". Was the 1st respondent "elected" to the office of
President of Nigeria previous to his election to that office in 1999?
Learned counsel for the appellant, Mr. Ezike
answered that Chief Obasanjo was indeed elected
to that office when he was appointed or selected as Head of the Federal
Military Government by the Supreme Military Council in 1976. In support of
this amazing submission Mr. Ezike hinged his
argument on the literal meaning of the word "election". He argued that a
head of a family is elected by members of the family. So also are elections
conducted by corporate bodies, clubs, associations, town unions, student
unions and elections of leaders in the
Senate and
House of Representatives.
Considering the fact of this case this is the most unconvincing argument in
a case which is based on interpretation of the Constitution.
Section 137(1) (b) of 1999
Constitution is very clear. Even a layman can understand the intention
of the framers of that provision. In interpreting the provision of the
Constitution the language of the Constitution where clear and unambiguous
must be given its plain evident meaning.
Further to what I have said
earlier those who have the duty to interpret the provisions of a statute or
Constitution must look at the statute or Constitution as a whole in order
not to veer away from the intendment of its framers. In P.D.P. v INEC
(1999) 11 NWLR (Pt. 626) 200 at page 142 Chief Justice
Uwais pointed to what is required to be done in interpreting the
provision of a statute or Constitution in the following words:
"It is settled that in
interpreting the provisions or section
of a statute or indeed the Constitution, such
provisions or section should not be read in isolation of the other
parts of the statute or Constitution. In other
words, the statute or Constitution should be read as a whole in order to
determine the intendment of the makers of the statute or Constitution."
In the case of Canada Sugar
Refining Co. v R. (1988) AC
735 it was held that every clause of a statute should be construed with
reference to the context and other clauses of the Act, so as, as far as
possible, to make a consistent enactment of the whole statute or series of
statutes relating to the subject-matter.
The relevant issue in this
case is whether the 1st respondent, Chief
Olusegun Obasanjo, had been elected to
the office of President of Nigeria in any election as envisaged by the 1999
Constitution, previous to the presidential election of 1999 which he
contested and won. Learned counsel for the appellant, Mr.
Ezike, argued that the 1st respondent
was indeed "elected" by his "appointment" or "selection" as Head of State by
the Supreme Military Council in 1976.
Let me analyse the submission
of Mr. Ezike on the appointment of the 1st
respondent in 1976. Learned counsel referred in his submission to
Section 6(2) of the Constitution
(Basic Provisions) Decree No 32 of 1975 under which the Supreme
Military Council was established and
Section 8(d) of the said Decree which provided for the appointment of
the Head of the Federal Military Government. It is pertinent to point out
however that under the sections referred to above (of
Decree No 32 of 1975)
there is no provision for the g appointment of "President of the Federal
Republic of Nigeria." Section 6(l)
(2) (a) of Decree No 32 of 1975 provides thus:
"6.
(1)
There shall be for Nigeria a Supreme Military Council, a National
Council of States and a Federal Executive Council.
(2)
The Supreme Military Council shall consist of:
(a)
the Head of the Federal Military Government who shall be President of
the Supreme Military Council."
Looking at the provisions of
Section 6(1) (2) (a) of Decree No
32 of 1975 it is relevant to ask, "To which office was the 1st
respondent, Chief Obasanjo, appointed on 14th
of February, 1976 by the Supreme Military Council? The simple answer is that
he was appointed to the office of the Head of the Federal Military
Government. He was therefore not appointed to the office of President of
Nigeria. His appointment as Head of the Federal Military Government also
made him President of Supreme Military Council and not President of Nigeria
as argued by Mr. Ezike. The object of all
interpretations is to discover the intention of the law-makers which is
deducible from the language used. Once the meaning is clear the courts are
to give effect to it. See Bradlaugh v
Clarke (1883)3 App Cases 354.
On this point alone, assuming
I accept that when the 1st respondent was appointed the Head of
the Military Government he was
elected, it is plain to say that he was not elected President
of Nigeria but Head of Federal Military Government. The offices of the
President and that of the Head of Federal Military Government are not the
same designations. No amount of analogy and play about with words and
phrases can change the meaning of what has clearly been provided in
Section 137(1)(6)
of 1999 Constitution and Section
6(2)(a) of Constitution (Basic Provisions) Decree No 32 of 1975,
This alone has flawed the contention of the appellant in the petition that
the 1st respondent had been elected President of Nigeria by the
Supreme Military Council in 1976.
I will now look at the
procedure for electing the President of Nigeria in a democratic
dispensation. The process of performing such important task has been
provided in Section 132 of 1999
Constitution. I reproduce the section in full as follows:
"132
(1)
An election to the office of President
shall be held on a date to be appointed by the
Independent National Electoral
Commission.
(2)
An election to the said office shall be held on a date not earlier
than sixty days and not later than thirty days
before the expiration of the term of office of
the last holder of that office.
(3)
Where in an election to the office of President one of the two or
more candidates nominated for the election is the only candidate after the
close of nomination, by
reason of the disqualification, withdrawal,
incapacitation, disappearance or death of the
other candidates, the Independent National
Electoral Commission shall extend the time for nomination.
(4)
For the purpose of an election to the office of President, the whole
of the Federation shall be regarded as one constituency.
(5)
Every person who is registered to vote at an election of a member of
a legislative house shall be entitled to vote at an election to the office
of President."
This is the only method
prescribed by the Constitution for the election to the office of President
of Nigeria. If any person is to be elected to the office of the President of
Nigeria he must go through the process laid down above. There is no other
way that the President of Nigeria is elected. The Constitution is very clear
on the procedure. Equating such election with elections in clubs and town
unions is not, with respect, an argument based on the interpretation of the
Constitution of 1999. I think I am not wrong to conclude that the
submissions of Mr. Ezike, in this case, have
cast a negative impression of his power to interpret a provision of the
Constitution or a Statute. Even the word "office" which the learned counsel
made heavy weather of, when its definition is analysed, will show that it is
of no help to the appellant's petition. Under
Section 318 of the Constitution
"office" is defined thus:
“‘office’
when used with reference to the validity of an
election means any office the appointment to
which is by election under this Constitution."
Considering the interpretation
of the word "office" above, it means that the only valid election to me
"office" of President is the one conducted under the provisions of 1999
Constitution. Thus, where it has been provided under
Section 137(1) (b) of 1999
Constitution that "a person shall not be qualified for election to the
"office" of President if he has been elected to such "'office" at any two
previous elections", it means the "office" of President whose appointment is
made by election under the 1999 Constitution. In this regard, since the
appointment of the 1st respondent to the "office" of the Head of
the Federal Military Government, in 1976, was not made under the provisions
of the 1999 Constitution, the argument of learned counsel for the
petitioner, Mr. Ezike, that the appointment of
the 1st respondent in 1976 can stand as the second previous
election to the office of President is groundless. Any election to the
"office" of President which was not conducted under the provisions of 1999
Constitution is not a previous election to the "office" of President as
envisaged by the provisions of
Section 137(l)(b) of the 1999 Constitution.
In sum, this petition is
devoid of any merit and I agree that it is
an attempt to trivialize
the judicial process. The appeal is accordingly dismissed. I affirm
the decision of the Court of Appeal and award
Judgment delivered by
Muhammadu
Lawal Uwais
CJN
I
have had the advantage of reading in draft the judgment read by my learned
brother, Mohammed, J.S.C. I entirely agree with him that this appeal is
devoid of merit. By way of emphasis, I wish to add the following.
Both the appellant and the 1st
respondent contested the 2003 presidential election as candidates for the
All Progressive Grand Alliance (APGA) and People's Democratic Party (PDP)
respectively. The 1st respondent was returned by the 2nd
respondent as the winner of the election. Consequently, the appellant filed
a petition in the Court of Appeal challenging the declaration that the 1st
respondent was duly elected as President of the Federal Republic of Nigeria.
He prayed for the following reliefs:
“(i)
A declaration that as at the 19th
April, 2003 when the Presidential Election was held in Nigeria, Chief,
Olusegun Obasanjo,
the 1st respondent,
was no qualified to contest the election,
(ii)
An order invalidating the return of Chief
Olusegun Obasanjo, the 1st
respondent as the President elect in the April 19th 2003
presidential election.
(iii)
An order commanding the 2nd respondent to conduct
another Presidential Election.
(iv)
An order directing the Chief Justice of "Nigeria to take over as the
Head of State of Nigeria for a period of 3 months within which period he
would reorganise the 2nd respondent and conduct a free and fair
election,
(v)
A declaration that the purported declaration of the 1st
respondent as the winner of the 19th April,2003
election is unconstitutional, null and void.”
At the conclusion of the
hearing, the Court of Appeal (Oguntade,
J.C.A, as he then was,
Salami, Mahmud Mohammed, Nsofor and Tabai,
J.J.C.A) dismissed the petition in the following
words, per Salami, J.C.A:
"The
petition lacks merit as it has not been shown either in law or fact that
Chief Olusegun Obasanjo
was elected as alleged on the 14th February, 1976 as the Military
Head of State.
Having found that the petition was not made out, the same is dismissed ..."
Now the fulcrum on which the
appellant's petition was based
is that by the provision of
Section 137 subsection (1) (b) of the
Constitution of the
"137
(1)
A person shall not be qualified for election to the office
of President
if:
(a)
…
(b)
he has been elected to such office
at any two
previous elections."
(italics
mine).
The question to be asked,
therefore, is whether the 1st respondent, prior to his election
as President in 1999, had previously been elected to the office of the
President. The appellant's contention is that the 1st respondent
had been a Military Head of State between 1976 and 1979 and that his
succession to the office of Military Head of State in 1976, following the
assassination of General Murtala Mohammed, was
as a result of his being "elected" by the Supreme Military Council, which
was the appointing authority then. The 1st respondent contested
this, asserted and testified that he was appointed and not elected to the
office of Military Head of State by members of the Supreme Military Council,
against his will, on the basis of seniority, since he was, as Chief of
General Staff, next to General Murtala Mohammed.
Both the words "office" and "President in
Section 137 subsection (l)(b) of the
1999 Constitution have been defined in Section 318 thereof to mean as
follows:
"'office' when used with
reference to the validity of an election means any office the appointment to
which is by election under this Constitution."
"President "or Vice-President"
means the President or Vice-President of the Federal Republic of Nigeria."
In contrast, Section 20 of the
Constitution (Basic Provisions) Decree No 32 of 1975 defined the
Head of the Federal Military Government as follows:
"the
Head of the Federal Military Government" means the Head of the Federal
Military Government, Commander-in-Chief of the Armed Forces of the
Federal Republic of Nigeria."
Section 8 of Decree No
32 of 1975, which
provides for the functions of the Supreme Military Council, states in
subsection (d) thereof as follows:
"8.
The functions of the Supreme Military Council include
(d)
the
exclusive responsibility for the appointment of the Head of the
Federal Military Government..."
(italics
mine)
The keyword here is
"appointment" which does not have the same meaning as "election" which the
appellant canvassed that took place in the Supreme Military Council to
appoint the 1st respondent in 1976 as Head of the Federal
Military Government.
Surely, the office of Head of
the Federal Military Government is not the same as the office of the
President of the Federal Republic of Nigeria as envisaged by the 1999
Constitution which relates to a general election, while
Decree No 32 of 1975 talks
of appointment and not election.
For these reasons and those
stated by my learned brother, Mohammed, J.S.C, I, agree with the Court of
Appeal when it held that it could not be shown by the appellant in law or by
evidence that the 1st respondent was elected as Military Head of
State. This does away with all the consequential reliefs sought by the
appellant in his petition. I do not, therefore, deem it necessary to
consider any further argument canvassed by the appellant in that regard as
that will, with respect, amount to an exercise in futility.
Accordingly, I too see no
merit whatsoever in this appeal and I hereby dismiss it and affirm the
decision of the Court of Appeal. I award
Judgment delivered by
Sylvester Umaru
Onu
J.S.C.
Having been privileged to read
in draft before now the judgment of my learned brother,
Uthman Mohammed, J.S.C just delivered, I
am in entire agreement with him that the appeal lacks merit and it fails.
I wish to add a few words of
mine in expatiation to the leading judgment in this bizarre case which both
in conception and presentation raises curious constitutional and
interpretational issues.
The appellant was one of the
presidential candidates that contested the nation-wide election to the
office of the President of the Federal Republic of Nigeria held on the 19th
of April, 2003. He (appellant) contested under the aegis of the All
Progressive Grand Alliance (APGA), a registered political party. The 1st
respondent who contested the same election was returned as the winner of the
said election which was conducted nation-wide; that he (1st
respondent) was previously, in his own words, unanimously "selected" or
"appointed" (which in a military setting at the time was understandable) by
the Supreme Military Council to hold a similar office between 14th
February, 1976 and 1st October, 1979; that he was again elected
to the office of President in 1999 and again in 2003. That it was the 2nd
respondent that conducted the 3rd election in April, 2003, thus
making a total of three elections to "such office" under powers granted to
it in that behalf by the 1999 Constitution and the Electoral Act, 2002. He
further stated that the 3rd respondent was at all material times
the chairman of the 2nd respondent and chief returning officer
for the said election and he it was who declared the 1st
respondent as the winner of the April, 2003 presidential election. The 4th
respondent, it was asserted, sponsored 1st respondent at the said
presidential election.
Appellant's case in the Court
of Appeal was that 1st respondent was ab
initio not qualified to have contested the April, 2003 election by
reason of the fact that he had been previously elected to "such office" and
in previous elections prior to the 2003 presidential election.
At the end of the exercise,
the 1st respondent was duly returned as the winner by the 3rd
respondent and the appellant who lost, filed g the petition giving rise to
this appeal in the Court of Appeal (hereinafter called the court below) and
prayed for the following reliefs:
(i)
A declaration that as at 19th April, 2003 when the
presidential election was held in
(ii)
An order invalidating the return of Chief
Olusegun Obasanjo, the 1st
respondent as the President-elect in
the April 19th 2003 presidential
election.
(iii)
An order commanding the 2nd respondent to conduct another
presidential election.
(iv)
An order directing the Chief Justice of Nigeria to take
over as the Head of State of Nigeria for a period of 3 months within
which period he would reorganise the 2nd respondent and
conduct a free and fair election.
(v)
A declaration that the purported declaration of the 1st
respondent as the winner of the 19th April, 2003 election is
unconstitutional, null and void.
The respondents each countered
all the averments of the appellant's petition and after they had testified
in support of their respective cases and addressed the court below, that
court held, inter alia, per Ayo Salami, J.C.A and concurred in by
Oguntade, Mohammed, Nsofor
and Tabai, J.J.C.A as follows:
"... I am not unaware that the
petitioner talked about voting in his testimony before us. The issue of
election
goes beyond merely voting as it is a process inclusive of delimitation of
constituency, nomination, accreditation, voting itself, counting, collation
and return or declaration of result. There is no evidence that such process
was gone through in 1976 when Chief Obasanjo
became Head of State. Having failed to establish the fulcrum of his case, it
follows necessarily that his case did not preponderate to warrant calling
upon the respondents to enter upon their defence. In
fact there is nothing to rebut. The election
petition, in my respectful opinion, is therefore not established."
In case, the exercise that was
conducted in the Supreme Military Council in 1976, is considered to be an
election, without so deciding, it is not the type of election envisaged
under Section 137(l)(b) of the
Constitution of the Federal Republic of Nigeria, 1999 which provides
that:
"137
(1)
A person shall not be qualified for election to the office
of President
if:
(a)
…
(b)
he has been elected to such office
at any two
previous elections."
(italics
mine).
The Constitution, in my respectful view does not contemplate an election
such as the one alleged to have been held in 1976. If an election was held
on that day it is not only an aberration but also a farce. Or how else would
an election in which one of the candidates or the sole candidate presided
over its conduct he described. It is not only undemocratic it also does
violence to our sense of fairness, equity and good conscience. For an
election to qualify for consideration under the provisions of Section
137(l)(b) it must respectfully be such that was conducted under the
provision of Section 130 of the 1999
Constitution which envisages an
election by an independent body and conducted by free citizens and not by a
cabal that had no mandate of Nigerians to give them a leader. To them at the
Supreme Military Council, the word election was an anathema and treason and
to talk about it was treasonable as testified to by the third petitioner's
witness.
The word appointment which was used at pages 31 and 32 of exhibit PI by the
1st respondent is defined in Section 318 of the Constitution 1999
as follows:
"318(1)
In this Constitution, unless it is otherwisee
expressly
provided or the context otherwise requires –
"appointment"
or its cognate expression includes appointment or promotion and transfer or
confirmation
of appointment."
On the evidence before us, it seems to me that Obasanjo
was appointed in 1976 on promotion in view of his seniority by rank and
appointment or confirmed by virtue of the evidence, of third petitioner's
witness under cross-examination that —
"When those who made the
coup brought us in they
told us that Murtala
Mohammed was the Head of State and
his number 2 was Obasanjo and that if he dies
his successor would be
Obasanjo.
I was present on that
occasion."
(Italics mine)
The testimony on either view
is within the contemplation of the definition of the word appointment which
excludes possibility of an election. I am, therefore, not considering the
provisions of the Constitution of the
Learned counsel for petitioner
also craved in aid the definition of the word "office" under the same
section 318. The word "office" is defined as follows:
“'office'
when used with reference to the validity of an
election means any office the appointment to
which is by election under this
Constitution.”
I cannot fathom the reason for
thinking that this definition enures to the petitioner. The definition
merely deals with appointment which is made by election under the present
Constitution. All it is being said is that certain offices under this
Constitution are filled by election. Chief Obasanjo
was not appointed under this Constitution in 1976. The most liberal
interpretation is that certain appointment
q under this
Constitution are made by election while others are made by appointment
simpliciter or promotion or confirmation as has been shown earlier in this
judgment without holding election for instance appointments of civil
servants, or judicial officers. The appointing body may resort to voting to
signify preferences of members of such officers when appointed or elected.
The court below went on to
conclude its judgment by stating as follows:
“The petition lacks merit as it has
not been shown either
in law or fact that Chief
Obasanjo was elected as alleged on
14th February, 1976 as the Military Head of State.
Having found that the petition was not made out
the same is dismissed by me with costs
assessed at
Being dissatisfied with the
said decision the appellant appealed to this court on nine grounds. From the
nine grounds appellant's counsel Mr.
Ezike,
formulated five issues for our determination, to wit:
1.
Did the appellant prove that the appointment of the 1st
respondent by the Supreme Military Council as Chief
Executive and Commander-in-Chief of the Armed
Forces of the Federal Republic of Nigeria on the
14th February, 1976
was an election to the "office" of
President within the meaning of
Section 137(l)(b) of
the 1999
Constitution of Nigeria?
2.
What is the effect of the evidence suggesting that the
1st respondent was appointed Head of
the Federal Military Government by the
Supreme Military Council because of his
seniority in the Armed Forces and in
government
as found by the Court of Appeal, on the
appellant's contention that he was elected to the said
office by the Supreme Military Council pursuant
to the
Constitution (Basic Provisions) Decree No
32 of 1975?
3.
In the circumstances of this case, is there any difference
between the "appointment" of the 1st
respondent to the office of Head of State
by the Supreme Military Council in 1976
under the Constitution (Basic
Provisions)
Decree, 1975
and his "appointment" to the office of
President by election in 1999 under the Constitution?
4.
Did the election of the 1st respondent in 1976 have to
comply with the provisions of
Section 130 of the 1999
Constitution
in order to qualify for consideration under
Section
137(l) (b) of the 1999 Constitution as
"any
previous election?"
5.
Was the appellant required to plead the evidence that
the 1st respondent told him that he
(the 1st respondent) was
elected by the Supreme Military Council after the
death of General Murtala
Mohammed?
For his part, the 1st
respondent submitted a lone issue for determination which queries:
1.
Whether or not the appointment of the 1st respondent in
1976 under a military regime as the Head of State following the death of
General Murtala Mohammed amounted to an election
within the meaning of Section 137 of
the 1999 Constitution.
The 2nd and 3rd
respondents submitted in their joint brief two issues
as calling for determination, to wit:
1.
Whether or not on the totality of the evidence before
the trial court there was a democratic election
in the Federal Republic of Nigeria or
within the Supreme Military Council on the
14th day of February, 1976 to the office of the Head of
State and Commander-in-Chief of the Armed
Forces of the Federal Republic of Nigeria.
2.
Whether or not the appointment of the 1st respondent as
the Head of State and Commander-in-Chief of the Armed Forces of the Federal
Republic of Nigeria under the
Constitution (Basic Provisions) Decree No 32 of 1975 was an
election envisaged under the unambiguous provision of
Section 137(l)(b)
of the Constitution of the Federal Republic of Nigeria.
Argument of issue:
In the argument of this appeal
I propose to consider only 1st respondent's lone issue for
determination which for its brevity and conciseness, or better still, its
going to the root of the point at issue when it asks:
"Whether or not
the appointment of the 1st respondent in 1976 under a military
regime as the Head of State following the death of General
Murtala Mohammed amounted to an election within
the meaning of Section 137 of the
1999 Constitution."
Before I proceed further, I
wish to pause here briefly to say a word or two on interpretation of
documents generally with which we are herein concerned.
In the interpretation of
documents, one of which is our 1999 Constitution its predecessors and
statutes, especially the 1979 Constitution. Nasir,
President of the Court of Appeal in Archbishop Anthony
Olubumni Okogie &
Others v The Attorney-General of
"In interpreting the 1979
Constitution it (i.e. the Constitution) is a single document and every part
of it must be considered as far as relevant and in order to get the true
meaning and intent of any particular portion of the enactment."
It is trite law that certain
propositions are fundamental to law and our system of justice. One is that a
person whose right and interest are likely to be affected by a decision must
be heard before the decision is taken against him. Another is that statutes
should not be lightly presumed to have taken away a legal right upholding
and preserving a right in the absence of express provisions to that effect.
See P.D.P. v INEC (1999) 11
NWLR (Pt. 626) 200, (2001) FWLR (Pt.3l)
2 735 (per Uwais,C.J.N).
While a person's access to the
courts to have his civil rights adjudicated upon may be restricted or ousted
by a Statute or Act, it must be construed rather strictly. Ouster of
jurisdiction, it is also emphasized, needs express words vide
Shodehinde v Registered Trustees,
Ahmadiyya Movement-in-Islam
(2001) FWLR
(Pt. 58) 1065.
A court of law is without
power to import into the meaning of a word, clause or section of a statute
something that it does not say. See
Bronik Motors Ltd. & Others v Wema
Bank Ltd. (1983) 6 SC 158, (1983) 1 SCNLR 296.
Indeed, it is a corollary to
the general rule of literal construction that nothing is to be added to or
taken from a statute unless there are adequate grounds to justify the
inference that the legislature intended something which it omitted to
express. See Thompson v
Goold & Co. (1910) AC 409 at
420.
Further, in interpreting
statutory or constitutional provisions, such provisions should not be read
in isolation of the other parts of the statute or Constitution. In other
words, the statute or Constitution should be read as a whole in order to
determine the intendment of the makers of the statute or Constitution. Every
clause of a statute should be construed with reference to the context and
other clauses of the Act so as, as far as possible, to make a consistent
enactment of the whole statute or series of statutes relating to the
subject-matter. See Nafiu
Rabiu v
State (1981) 2 NCLR 293;
Egolum v
Obasanjo (1999) 7 NWLR (Pt.611) 355.
Such that
a court in declaring that its jurisdiction has been ousted is itself
exercising some jurisdiction.
See Wilkinson v Barking Corporation (1949) KB 721.
Thus, where literal
interpretation of a word or words used in
any enactment will
result in an absurdity or injustice, it will be the duty of the court to
consider the enactment as a whole with a view to ascertain whether the
language of the enactment is capable of any other fair interpretation, or
whether it may not be desirable to put a secondary meaning on such a
language or even adopt a construction which is not quite strictly
grammatical.
Let me add by further stating
in respect of interpretation of statutes and the Constitution, that in
declaring the law, the court gives words used and employed in or the law or
statute their ordinary and natural meanings. For as Lord
Denning M.R. clearly put it in Allen v Horn Electrical Industries Ltd.
(1987) 2 All ER 37 at 114.
"We are not slaves to words
but their masters. We sit here to give them their natural and ordinary
meaning in the context in which we find them."
Now to the
rest of the consideration of the appeal.
In resolving the lone issue identified as the one relevant to this appeal by
me, I wish to hang my consideration thereof on very pertinent and salient
sections of the 1999 Constitution, to wit:
Section 137 of the 1999 Constitution,
section 8(d) of the Constitution (Basic Provisions) Decree No
32 of 1975, Section 26(27)
of the Interpretation Act and
Section 132 of the 1999 Constitution,
Section 50 of the said Constitution,
Section 6(1) Decree No
32 of 1975, Section 312(2) and
Section 318 of the 1999 Constitution on the definition of "office".
In the argument of both his
brief and reply brief, the appellant contended among other things, that as
the evidence of all three witnesses called by him including the contents of
documentary evidence (exhibits PI - P1B) were neither denied nor
contradicted, the same is adequate proof that the 1st respondent
was first elected "President" by the Supreme Military Council within the
meaning of Section 137 of the 1999
Constitution of Nigeria in addition to the provisions of
Section 8(d) of the Constitution
(Basic Provisions) Decree, 1975. Also to the effect is "the mandate of"
the Supreme Military Council on the 14th of February, 1976; the
purport of Section 26 of the
Interpretation Act, 1964 whose provisions the said Constitution
stipulates shall apply to the interpretation and the application of the said
section of the said Act by the Supreme Court in
Adefulu v Oyesile (1989) 5
NWLR (Pt. 122} 377, (1989) 12
SCNLR 44 at pages 66-67;
Section 318 of the Constitution which makes it clear that the word
"appointment" in the circumstances mean "election" and the legal and
etymological definitions of the operative words of
Section 137(1) of the 1999
Constitution.
Learned counsel for the
appellant further argued that the said Constitution (Basic Provisions)
Decree, 1975 and the words "select", "vote" and "appoint" used in the said
Constitution and in exhibits Pl A and Pl B as well as in the evidence of PW2
and PW3 before the court below.
He further submitted that by
virtue of Sections 6(2) and 8(d) of
the said Constitution (Basic Provisions) Decree 1975 and
Section 26 of the Interpretation Act,
1964 the selection of the 1st respondent in 1976 was an
election.
In view of the fact that in
1976 under a military regime the appointment of the 1st
respondent following the death of General Murtala
Mohammed could under no guise have amounted to an election within the
meaning of Section 137 of the 1999
Constitution the appellant's argument is misconceived. The election of a
president is as provided by Section
132 of the 1999 Constitution which states:
"132(1)
An election to the office of
President shall be held on a date to be appointed by the Independent
National Electoral Commission.
(2)
An election to the said office shall be held on a date not earlier
than sixty days and not later than thirty days before the expiration of the
term of the last holder of ; that office.
(3)
Where in an election to the office of president one of the two or
more candidates nominated for the election is the only candidates after the
close of nomination by
reason of the disqualification,
withdrawal, incapacitation, disappearance or death of the other
candidates, the Independent National Electoral Commission shall extend the
time for nomination.
(4)
For the purpose of an election to the office of President, the whole
of the Federation shall be regarded as one
constituency.
(5)
Every person who is registered to vote at an election a member of a
legislative house shall be entitled to vote
at an election to the office of President."
(Italics for emphasis)
The only method for electing a
person to fill the office of the President of Nigeria is by the electoral
process provided for in this section-Section
132 of the Constitution (ibid). It cannot be otherwise in a democratic
set up.
In sum, I am in entire
agreement with the decision of the court below, extracts from which judgment
I had reason to set out in extenso in the earlier part of this
judgment. Consequently, the tall orders we are asked to make or reliefs we
arc importuned to grant, would not avail the appellant.
This action is clearly
vexatious and misconceived in as much as the claims or reliefs therein
sought are an admixture or hotchpotch of grievances alleged to emanate from
the 1999 Constitution or from disused and moribund military enactments.
Rather than the briefs and submissions of the respondents being diversionary
in their entirety as Mr. Ezike, learned
appellant's counsel has dubbed them, to borrow the words of Chief
Afe Babalola, SAN
the learned leading counsel for the 1st respondent, this is an
"unfit" action that should not have been allowed to be brought in the first
place.
I, too, will dismiss the
appeal and make the same consequential orders inclusive of those as to costs
as contained in the leading judgment of my learned brother,
Uthman Mohammed, J.S.C.
Judgment delivered by
Umaru
Atu Kalgo
I have had the opportunity of
reading in draft the judgment just delivered by my learned brother,
Mohammed, J.S.C. I entirely agree with his reasoning and conclusions. I
therefore agree that there is no merit at all in the appeal and should be
dismissed.
Accordingly, I dismiss it with
costs as assessed in the leading judgment.
Judgment delivered by
Akintola
Olufemi Ejiwunmi
Being privileged to have read
in advance the lead judgment just delivered by my learned brother, Mohammed,
J.S.C, it is clear from the said judgment that he had carefully considered
the facts raised in the appeal and the issues raised
thereon that this appeal lacks merit. I agree with him.
In this matter, the appellant,
Chief Chukwuemeka Odumegwu
Ojukwu contested for the presidency of this
country on the platform of the All Progressive Grand Alliance (APGA), and
the 1st respondent, Chief Olusegun
Obasanjo, also contested for the same position
on the platform of the Peoples Democratic Party (PDP) in the presidential
election held in Nigeria on the 19th of April, 2003. Following
that election, the 1st respondent was declared as the winner of
the said election by the 2nd and 3rd respondents,
having been found to have in his favour that he secured the majority votes
of the voters throughout the country in this election. As the appellant was
not satisfied with the declaration so made in favour of the 1st
respondent, he filed the election petition, which led to his appeal to the
Court of Appeal. The Court of Appeal being by virtue of
the provisions of the
Constitution, the
The appellant therefore sought
for the following reliefs in that court:
"(i)
A declaration that as at the 19th April, 2003 when the
presidential election was held in Nigeria, Chief
Olusegun Obasanjo, the 1st
respondent was not qualified to contest the election.
(ii)
An order invalidating the return of Chief
Olusegun Obasanjo the 1st
respondent as the President-elect in
the April 19th 2003 presidential
election.
(iii)
An order commanding the 2nd respondent to conduct
another presidential election.
(iv)
An order directing the Chief Justice of Nigeria to take over as the
Head of State of Nigeria for a period of 3 months within which period he
would reorganise the 2nd respondent and conduct a free and fair
election.
(v)
A declaration that the purported declaration of the 1st
respondent as the winner of the 4/19/03 election is unconstitutional, null
and void."
At the trial, witnesses gave
evidence. They were the appellant, the 1st
respondent, and as
P.W.3, Mohammed Dikko
Yusuf, At the end of it all, the Court of Appeal by the judgment of Salami,
J.C.A, (concurred with, by Oguntade, Mahmud
Mohammed, Nsofor and Tabai, J.J.C.A) dismissed
the petition. In the following words at the tail end of the judgment, thus:
"The petition lacks merit as
it has not been shown either in law or fact that Chief
Olusegun Obasanjo was elected as alleged
on 14th February as the Military Head of State,"
As the appellant was not
satisfied with the judgment of the trial court, he has appealed to this
court. Pursuant thereto, five issues were raised in the appellant's brief
for the determination of this appeal. And learned counsel for the 1st
respondent has right submitted that the only question for determination in
this appeal is:
"Whether or not the
appointment of the 1st respondent
" in 1976 under a military regime as the Head of State following the
death of General Murtala Mohammed amounted to an
election within the meaning of
Section 137 of the 1999 Constitution."
For this purpose, it is
Section 137 (l) (b) of the 1999
Constitution that is relevant and it simply says:
"(1)
A person shall not be qualified for election to the office of
President if-
(b)
he has been elected to such office at any
two previous elections ..."
It follows therefore that the
petitioner has the duty lo satisfy this court that the court below was wrong
to have held that that burden was not discharged by the appellant. The
various arguments advanced for the appellant in pursuit of this appeal by
learned counsel for the appellant when considered in all its ramifications,
do not show anything to warrant my intervention with the judgment of the
court below which in my humble view is right both in law and its evaluation
of facts. It is settled law that an appellate court would not intervene and
or interfere with the judgment of the court below except it is shown that
the court fell into error in its evaluation of the facts or applied the law
erroneously to finding of facts which were properly made. See Victor
Woluchem & Ors. v
Chief Simon Gudi & Ors. (1981) 5 SCNLR 372,
(1981) 5 SC 291 at 326; Obisanya v
Nwoko (1974) 6 SC 33 at 80; Lawal v.
Dawodu (1972) 1 All NLR p (Pt. 2)
270 at 286; Mogaji v
Odofin (1978) 4 SC 91;
Ebba v Ogodo (1984) 1 SCNLR
372, (1984) 1 SCNLR 372 - 381; Omoregie
v Idugiemwanye (1985) 2 NWLR (Pt. 5) 41;
Kate Enterprises v Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116.
It follows therefore that
having regard to what I have said above and the fuller reasons given in the
lead judgment of my learned brother, Mohammed, J.S.C, this appeal is also
dismissed by me. I abide by the
consequential orders made in the said judgment including the order as to
costs.
Judgment delivered by
Niki
Tobi
J.S.C
I have read the judgment of my
learned brother, Mohammed, J.S.C, just delivered. I entirely agree with him.
I will add this bit in support of the judgment. Election to the office of
the President of the Federal Republic of Nigeria was held throughout the
country on 19th April, 2003. The appellant contested the election
on the platform of All Progressives Grand Alliance bearing the cognomen
(APGA), a registered political party. The 1st respondent also
contested the election on the platform of Peoples Democratic Party, bearing
the cognomen (PDP), also a registered political party. The 1st
respondent was declared a winner of the election. The appellant did not like
it. He contested the results. He filed an election petition.
Paragraphs 8 and 9 of the
petition are important for the purpose of this appeal and I reproduce them
verbatim et literatim:
"8.
Your petitioner states that the ground upon which the petition is
founded is as follows:
(i)
That the 1st respondent was not duly elected or returned
for the reason that the said 1st respondent was not qualified to
contest the said election on the date same was conducted
and therefore his
candidature was in frontal conflict
with
Section 137(1) of the 1999 Constitution.
9.
The facts relied upon in support of the petition are as g follows:
(a)
Your petitioner states that the 1st respondent has been
elected to the office of the President in two previous elections in 1976 and
1999.
(b)
By virtue of the provisions of the 1999
Constitution relating to election of individuals
into the office of the President, a candidate is
not qualified to contest for the said office if
he had been elected into the said position
in any two previous elections."
In the 1st
respondent's reply to the petition, the 1st respondent in
paragraph 5 denied inter alia paragraphs 8 and 9 of the petition. The
1st respondent raised preliminary objection to the competence of
the petition. There were also other objections to dismiss the petition. All
the applications to dismiss the petition in limine were agreed to be
taken along with the merits of the petition and subsequent judgment.
The Court of Appeal took oral
evidence. The appellant was the first witness. He called two other
witnesses, viz: the 1st
respondent and one other. The respondents did not call any evidence. After
address by counsel, the Court of Appeal delivered judgment. Dismissing the
petition, Salami, J.C.A, said in the penultimate paragraph at page 102 of
the record:
"The petition lacks merit as
it has not been shown either in law or fact that Chief
Obasanjo was elected as alleged
on 14th February, 1976 as the Military
Head of State."
Dissatisfied, the appellant
has come to us. He filed a brief of argument on 3rd September,
2003. The 1st respondent filed a brief dated 8th
October, 2003. The 2nd and 3rd respondents also filed
a brief dated 15th July, 2003. The 4th respondent
filed a brief dated 25th July, 2003. The appellant filed three
reply briefs in respect of the above briefs dated 26th November,
2003; 8th October, 2003 and 6th November, 2003
respectively. My learned brother in the leading judgment has copiously dealt
with the arguments in the brief and I will not repeat the exercise. All I
intend to do is to take the arguments briefly in relevant situations in this
judgment. I will however take the issues set out by the appellant
seriatim. The first issue is whether the appellant proved that the
appointment of the 1st respondent by the Supreme Military Council
to the office of Head of the Federal Military Government, Chief Executive
and Commander-in-Chief of the Armed Forces of the Federal Republic of
Nigeria on 14th February, 1976 was an election to the office of
President within the meaning of
Section 137(l)(b) of the 1999 Constitution'.
What was the evidence before
the court? PW1, the appellant, said in evidence-in-chief:
"The 1st respondent
was elected head of state. The 1st respondent wrote a book "Not
My Will" and therein
admitted he was elected. This is the book I had
been aware that a prior decree of the
military had stated amongst others that in
case of the vacancy such as the country was going through that the Supreme
Military Council would sit and designate a
successor. That
successor would be President, Head of Stale. I
request most respectfully of this
Honourable Court to declare the 1st
respondent was not qualified at the time of the
election and declare that the declaration by the
2nd respondent that he had been lawfully elected null and
void. I further request that in the interim, the
Honourable Chief Justice of the Federation
be charged with
the responsibilities as the Nation's Chief Executive
to properly run an election which will produce
for this groaning nation a legitimate government."
PW2, the 1st
respondent, Chief Olusegun
Obasanjo, said in evidencc-in-chief:
"Between 14th
February, 1976 and 30th September, 1979, I was the Military Head
of State of Nigeria. I was also the Commander- in-chief. Between 29/5/99 and
28/5/03, I was the elected President of
Under cross-examination,
witness said:
"As I explained, it was a
Military hierarchy. Once the first is out, the next in the hierarchy
succeeds. In war, when No 1 falls, No 2 takes over. There is
no argument about it. I was the next most senior after the Head of Stale in
1976 in appointment and rank. There are differences between appointment and
election. Election by my understanding is the result of voting under the
21st Century Chambers
Dictionary. Appointment does not involve voting. I did not say in
exhibit PI (A) and PI (B) that I was elected as Head of State. I could not
have said so. The SMC by practice made me Head of State. As No 2 with
the demise of my Head of State, I automatically chaired the SMC."
In his evidence in-chief,
PW3, Mohammed Dikko
Yusuf, said:
"I was a member of the SMC from 1975
to 2nd October, 1979. On 14/2/76, the SMC selected the 1st
respondent as Head of State, I was present at the
meeting. It was the responsibility of the SMC to do so."
Under cross-examination,
witness said:
"In the absence of General
Murtala, the 1st respondent took the
chair. I was present. The 1st respondent was reluctant to take
office as Head of State but he was persuaded to do so. We were to remain in
office for 4 years. Anybody who wanted to remove us was asking for trouble.
The circumstance did not warrant election."
It is clear from the above
that the evidence of PW2 andPW3 is basically similar. Both witnesses agreed
on the vital point that there was no election at the Supreme Military
Council. And what is more.
PW3 seems to agree with PW2 on
the issue of seniority, as the determinant factor for appointment to the
office of Head of State, when he said under cross-examination: "In the
absence of General Murtala, the 1st
respondent took the chair".
He also said in examination-in-chief that the "No 2 to the
then Head of State was the Chief of Staff, Supreme Headquarters". And that
Chief of Staff was PW2. This is confirmed by the evidence of the
1st
respondent when he said under cross-examination:
"No 2 was Chief of
Staff, Supreme Headquarters. When the Chairman was alive I was his No
2. Before General ( Murtala
Mohammed died, I was his No 2 in appointment and seniority... In war,
when No 1 falls, No 2 takes over. There is no argument about
it."
The appellant in his
evidence-in-chief used the word "designate". He said that the "Supreme
Military Council would sit and designate a successor. That successor would
be President, Head of State". The word "designate" etymologically means to
choose or name for a particular purpose. It is not a synonym of the word
"elect"; and the appellant did not even use it as such in his evidence, Let
me take another factual situation and it is from the evidence of both PW2
(the 1st respondent) and PW3. PW2 carefully chose his words when
he said:
"I was unanimously endorsed
for the position of Head of State much against my will."
PW3 also said on the issue of
the unwillingness of PW2 to take the position:
"The 1st respondent
was reluctant to take office as Head of State but he was persuaded to do
so." In exhibits PI (A) and P1 (B), PW2 indicated his unwillingness to take
the position. He said at page 32:
"I thanked my colleagues for
rallying to give unqualified loyalty and support since the event of the
previous twenty-four hours and I explained that I had to bow out, as the
toll which had been taken on my mental and physical health was far greater
than I had anticipated. But my colleagues would not accept my excuse; they
were apparently unanimous I was to take over, I was adamant, and they were
just as unrelenting in their
insistence that I become the next Head of State."
And the above takes me to a
human situation. A person who
contests an election is no more under persuasion
or reluctance. He could be persuaded to contest the election but the moment
he agrees, the element of reluctance or persuasion is gone. I am more
inclined to agreeing with PW2 that the Supreme Military Council endorsed him
as the Head of State, the word "endorse" in the context mean an expression
of approval or support.
And that takes me to the book,
exhibit P1(A) and P1(B). This is important
because counsel for the appellant submitted that the exhibit gave details of
"how the 1st respondent was elected as Head of State in 1976. In
exhibit P1 (A), the respondent narrated the story of how he told
Yakubu Danjuma and
MD. Yusuf of his mood in not willing to accept the appointment as Head of
State and that he would help to search for a candidate. He also informed the
members of his family. In exhibit P1 (B), the 1st respondent
narrated the story of how he was appointed Head of State against his will.
And it would appear from the evidence before the court that his
unwillingness to be the Head of State gave rise to the title of his book:
"Not My Will". It is possible that I am wrong. It will be bad if I am wrong.
Of relevance to the issues
raised by counsel for the appellant are the words "select" and "appoint".
Perhaps, I should take the sentences where 1st respondent used the words in
the context of their continuous tense and noun respectively.
In exhibit
P1(B), 1st respondent said:
"Then came
the issue of selecting a successor to Murtala …Murtala's
death was formally announced before the announcement of the appointment of a
new Head of State in the evening."
The 1st respondent
did not say in the exhibit that he was elected as Head of State. He used the
words "selecting" and "appointment" - words which did not or do not mean
"elected".
I have dealt so much with the
factual situation. Let me now go to the law. The fulcrum of the submission
of learned counsel for the appellant is that the words "select" and
"appoint" mean "elect" within the meaning of
Section 137(l)(b) of the Constitution
of the Federal Republic of Nigeria, 1999. He called in aid Black's Law
Dictionary definition of election and
Webster's New 20th Century Dictionary definition of the same word. He
also cited a number of cases, the
Constitution (Basic Provisions) Decree, 1975 and the Interpretation Act,
1964.
Let me start from the genesis
of the appointment of the 1st ' respondent as Head of Stale,
Commandcr-in-Chief of the Armed Forces. Although
the appointment took place in 1976, the law applicable which was the
enabling law was promulgated in 1975. It is the
Constitution (Basic Provisions, etc.)
Decree No 32 of 1975. Historically, General
Murtala Muhammed was appointed under that
Decree.
Section 8 of the Decree
provided for the functions of the Supreme Military
Council . Of direct relevance is (d). It provided thus:
"The functions of the Supreme
Military Council
include... exclusive responsibility for the
appointment of the Head of the Federal
Military Government..."
The operative word in section
8(d), at the time it was law. Is
"appointment". I do not think learned counsel's search for the
definition of "election" in both Black's Law
Dictionary and Webster's
New 20th Century Dictionary
is helpful to his case. I say this because
none of the dictionaries extend the definition of election to mean
appointment. The word "appoint" is defined in
Black's Law
Dictionary (Sixth edition) at page 99,
as follows:
"To designate, choose, select,
assign, ordain, prescribe, constitute or nominate. To
allot or set apart. To assign authority to a
particular use, task, position or office. Term is used where
exclusive power and authority is given to one person, officer, or body to
name persons to hold certain offices. It is usually distinguished from
'elect' meaning to choose by a vote of the qualified voters of the city;
though this distinction is not invariably observed."
Applying the definition above
to Decree No 32 of 1975, section 8 of the Decree vested in the
Supreme Military Council, the authority, to name, that is, to appoint the 1st
respondent to the office of Head of State, Commander-in-Chief of the Armed
Forces.
The above apart, the second
leg of the definition clearly says that the word "appoint" is usually
distinguished from the word "elect" which means to choose by a vote of the
qualified voters. Although Black's Law Dictionary says that the distinction
is not invariably observed, there exists a distinction and it is in terms of
choosing a person to hold an office by votes of the qualified voters.
And that takes me to
Section 137(1) (b) of the 1999
Constitution.
It provides thus:
"A person shall not be
qualified for election to the office of President if... he has been elected
to such office at any two previous elections."
Section 8(d) of the repealed
Decree No 32 of 1975 and section 137(l)(b)
of the 1999 Constitution
talk of different offices. While section 8(d) provided for the office of
Head of the Federal Military Government,
Section 137(l) (h) of the 1999
Constitution provides for the office of President. It is my view that
the two offices do not mean the same as their functions are different. And
so, it is futile for counsel for the appellant lo invoke section 137(l) (b)
because the 1st respondent is not caught by the subsection. In
view of the fact that this is his second term in office as President of the
Federal Republic of Nigeria, Section 137(1) cannot be invoked against him.
No, not at till. And when I
come to this conclusion, I interpret the words "such office" in section
137(1) (b) as referring to the office of President and not the office of
Head of State.
Assuming that I am wrong, I am
not prepared to go along with learned counsel that the appointment of the 1st
respondent under Section 8 of
repealed Decree No 32 of 1975 was an election within the meaning
of Section 137(l) (b) of the 1999
Constitution. In my view, the word "election" in section 137(l) (b)
means exercise of adult suffrage, which involves voters, materials for
voting and supervision and counting of votes by electoral personnel.
Learned counsel for the
appellant invoked Section 26 of the
Interpretation Act, 1964. How does that section help the appellant? His
argument that the Supreme Military Council should act democratically, with
the greatest respect, does not change the position. In other words, it does
not make the appointment of the 1st
respondent as Head of State as an election. I
think the appellant has failed on issue No 1.
I go to issue No 2. It
has to do with the evidence of the 1st respondent that he was
appointed as the Head of Stale because of his seniority in the Armed Forces
and the evidence of the appellant
that he was elected by the Supreme Military
Council pursuant to the Constitution (Basic Provisions) Decree, 1975.
It is the argument of learned
counsel for the appellant that in the light of the evidence of PW1, PW2, PW3
and exhibit PI (A) and P1(B), it is clear that
Section 8(d) of Decree No 32
of 1975 was fully complied with. He submitted that from the printed
record, there is no evidence that the 1st
respondent became Head of the Federal Military Government
other than in compliance with the requirements of the Constitution at the
material time. While I concede the point that the 1st respondent
was appointed Head of State pursuant to
Section 8(d) of Decree No 32
of 1975, I do not agree with the contention that his appointment was an
election within the meaning of
Section 137(l)(b) of the Constitution of the
Federal Republic of Nigeria.
Learned counsel seems to
disagree with the evidence of seniority as he feels more comfortable with
the argument that 1st respondent was elected to the office of
Head of State by virtue of Section 8
of Decree No 32 of 1975. It is useful at this stage to remind him
of the evidence of the appellant which he freely quoted at page 14 of his
brief. PW1 said:
"I know by my experience in
the Nigerian Army, that pj the rightful person
to take over was either the most senior officer or the officer elected by
the Supreme Military Council to assume that post. I had been aware that the
law at that time envisaged such election but more than this I had confirmed
this from my good friend general Obasanjo."
There are two versions in the
above evidence. The first version is the one counsel, is not prepared to
hear and it is that the most senior officer can assume the post. This is
from the mouth and head of the appellant himself and counsel cannot afford
to underplay it. He made alternative statement, which is punctuated by the
word "or". For obvious reasons counsel decided to ignore the first option
and moved to the second option because that is convenient to his client. As
a matter of fact, he went the whole length to underline it. Why should he
neglect the first leg of the statement, if really the
cliche that first things come first is still available in human
affairs and human conduct?
I realise that the evidence of
seniority by the appellant cuts across the evidence of PW2 and PW3. I should
pause here to reproduce part of the evidence of PW2, even at the expense of
prolixity. I will, this time around, quote the evidence in extenso:
"The
composition of the SMC which came into force in
1976underGeneralMurtalaMohammedwerethese:
General M.Mohammed
was Chairman. No 2 was Chief of Staff, Supreme Headquarters. When the
Chairman was alive, I was his No 2. The Chief of Army Staff was
General Danjuma. He was No 3. The Chief
of Naval Staff was No 4. He was Admiral Michael
Adelanwa, The
Chief of Air Staff was No 5. He was Air Marshall John
Yisa Doko. The
Inspector-General of Police was No 6. He was
Alhaji M.D. Yusuf. The General officers
Commanding the divisions were members. It is
absolutely incorrect that there was no seniority in the Supreme Military
Council. There was a hierarchy. Before General Murtala
Mohammed died, I was No 2 in appointment and seniority. As I had
explained, it was a Military hierarchy. Once the
first is out, the next in the hierarchy succeeds. In war, when No 1
falls, No 2 takes over. There is no argument about it. I was next
most senior after the head of state in 1976 in
appointment and rank."
PW3,
would appear to have been mentioned in the evidence of PW2, as that
Inspector-General who was No 6 in the hierarchy in the Supreme
Military Council. He said in examination-in-chief, and I repeat what the
witness said:
"I was a member of the SMC
from 1975 to 2nd October, 1979. On 14/2/75 the SMC selected the 1st
respondent as Head of State. I was present at the meeting. It was the
responsibility of the SMC to do so."
Under cross-examination,
witness gave evidence in respect of
seniority and hierarchy in the Supreme Military
Council. He said:
"The No 2 to the then
Head of State was Chief of Staff,
Supreme Headquarters. The person who held the
office then was 1st respondent.
The next person was the Chief of Naval
Staff, Admiral Michael Adelanwa. The next
person was Chief of Air Staff, Air Marshall
Yisa Doko.
I was next in the then hierarchy. In the
situation as was in 1975, General
Murtala was made the Head of State
and the 1st respondent was next. In
the absence of General Murtala, the 1st
respondent took the chair. I
was present."
It is sad that learned counsel
quoted only the introductory parts of the evidence of PW3. I expected him to
go down and read the evidence of the witness given under cross-examination.
And that takes me to the 3rd
issue. It is whether there is any difference between the appointment of the
1st respondent to the office of the Head of State by the Supreme
Military Council in 1976 under Decree No 32 of 1975 and his
appointment to the office of President by election in 1999 under the 1999
Constitution.
I think I have dealt with this
aspect in away. I can still directly deal g with it. Learned counsel for the
appellant relied on the definition of "office" in
Sections 296 and 318 of the
Constitution; and Section 151 of
the Electoral Act, 2002
vis-a-vis
the provisions of section 137(l) (b) of the Constitution and
submitted that in the circumstances of the case, the words "appointment" and
"election" are co-terminus.
Section 137(l) (b) of the
Constitution uses the word "office" in the context of the President and in
relation to election. Section 296 also uses the word "office" in relation to
election. So too section 318. As a matter of law both sections 296 and 318
provide for "the validity of an election". There is no such provision in
Decree No (1) (b) 32 of 1975
because there was no election during the military regime. In the
circumstances, the word "appointment" under section 8 of Decree No. 32 of
1975 cannot convey the same meaning of "election" in the 1999 Constitution.
With the greatest respect to counsel, the submission is misconceived.
It is not my intention to take
issue 4 in the light of my conclusions above. I do not see the necessity of
taking issue No 4 since it is predicated on what the appellant calls
"the election of the 1st respondent in 1976".
Issue No 5 deals with
the adjectival aspects of the case. I do not think I should waste my time
considering the issue as it will not in any way determine the fortunes of
the appeal in favour of the appellant. Whether what the appellant said he
was told by the 1st respondent should be pleaded or not is not
relevant in the determination of the live issues in the appeal.
Learned counsel for the
appellant virtually repeated his arguments in the appellant's brief in the
reply brief. A reply brief is not expected to be a repetition of the
appellant's brief. A reply brief must reply to new issues or points raised
in the respondent's brief. A mere repetition of the arguments in an
appellant's brief with one or two new authorities does not qualify as a
reply brief.
In sum, the appeal has no
merit and I also dismiss it. I also abide by the orders as to costs in the
leading judgment of my learned brother.
Judgment delivered by
Dennis Onyejife
Edozie
J.S.C
I had a preview of the leading
judgment of my learned brother, Mohammed, J.S.C and I entirely agree
therewith.
The appeal, which focuses on a
very narrow compass is of great constitutional
importance. It concerns the qualification vel
disqualification of the 1st respondent to contest the 2003
presidential election. The salient and undisputed background facts as
portrayed in the printed record are that:
(1)
In 1976, the then Supreme Military Council S.M.C. (for
short) appointed the 1st respondent,
Chief Olusegun
Obasanjo
as the Head of State and Commander-in-Chief
of the Armed Forces of the Federal Republic of
Nigeria pursuant to Section 8(d) of
the Constitution (Basic Provisions) Decree No 32 of 1975. This
appointment is hereinafter referred to as the “1976 appointment”
(2)
In 1999, the 1st respondent contested an election and was
elected President of the Federal Republic of Nigeria for a four year term
which he duly served. I refer to this as the "1999 appointment"
(3)
In 2003, the 1st respondent again contested an election
and was re-elected as the President of the
Federal Republic of Nigeria for another
term of 4 years. This is referred to as
the "2003 appointment"
The ground of the
disqualification canvassed by the appellant is that having regard to the
1976 and 1999 appointments, the 1st respondent was not qualified
for the '2003 appointment' that is, that he was not qualified to contest the
2003 election the subject matter of this appeal. For this contention, the
appellant relies on the provisions of
Section 137(l) (b) of the 1999 Constitution which are to the following
effect:
"137
(1) A person shall not be qualified for elect ion to the office
of President
if
(b)
he has been elected to such office
at any two
previous elections."
(italics
for emphasis)
From the wordings of the
section, it is plain that for a person to be disqualified to contest a
particular election into the office of the President of the Federal Republic
of Nigeria, it must be shown:
(1)
That the person was elected to the office of president on two
previous occasions prior to the particular Presidential election in
question.
(2)
That he was appointed into that office on two previous occasions by
the process of an election and additionally,
(3)
That the provisions of Section
137(l) (b) of the 1999 Constitution applied to the elections of the two
previous occasions.
These three conditions must
co-exist before a person is disqualified to contest a presidential election.
From this guideline, it seems to me that st at
for the 1st respondent to be disqualified to contest the 2003
presidential election it must be shown that his '1999 appointment' as well
as the '1976 appointment' relate to the office of the president of the
Federal Republic of Nigeria; that he was elected or appointed by a process
of election into that office and that
Section 137(l) (b) of the 1999 Constitution applied to the two
appointments. There is no dispute over the'1999 appointment'. It is common
ground that the 1st respondent was elected or appointed by an
electoral process or elected into the office of the President of Federal
Republic of Nigeria in 1999 under the 1999 Constitution. The bone of
contention in this appeal relates to the '1976 appointment'. Was it an
appointment into the office of the President of the Federal Republic of
Nigeria; and if so, was he so appointed by the process of an election and
finally, is the 1999 Constitution applicable to that appointment.
My short answer to the three questions is in the negative. I will
expatiate by reference to Section 318
of the 1999 Constitution where the following words used in
Section 137(l) (b) of the
Constitution are defined thus:
"Office" means 'any office the
appointment to which is by election under the Constitution'.
"President" means 'the
President of the Federal Republic of Nigeria.'
By implication, therefore,
election to the office of the president as used in
Section 137(l)(b) of the 1999
Constitution relates to the office of the president of Federal Republic
of Nigeria to which one is appointed by the process of an election under the
1999 Constitution. I am not unmindful of the expression "such office" as
used in section 137(l) (b) of the 1999 Constitution. By the
ejusdem generis rule, the
expression has a limited scope.
The
ejusdem generis rule is an interpretative rule which the
court applies in an appropriate case to confine the scope of general words
which follow special words as used in a statutory provision or document
within the genus of those special words. In the construction of statutes,
therefore, general terms following particular ones apply only to such person
or thing as are ejusdem generis
with those understood from the language of the statute to be confined to the
particular terms. In other words, the general words or terms are to be read
as comprehending only things of the same kind as that designated by the
preceding particular expression unless there is something to show that a
wider sense was intended. See Maxwell
on the Interrelation of Statutes, 12th edition, p. 287;
Fawehinmi v Inspector General of
Police (2002) 7 NWLR (Pt.767) 606 at 688.
In
the instant case, the expression, 'such office' coming after the words 'the
office of president' is confined to a comparable office to the office of
president, which can be filled through electoral processes. It excludes
office to which one is appointed by the Supreme Military Council.
The Constitution did not
define the word 'election'; but the
Electoral Act, 2003, which governs the election into various political
offices defines the term 'general election' as:
"an
election held in the Federation at large and at all levels, a regularly
recurring election to select officers to serve after the expiration of the
full terms of their
predecessors."
The Advanced Learners'
Dictionary of Current English defines the word election thus:
"(1)
Choosing especially by voting
(2)
an instance of this, as a general election
(e.g. when members of the House of Commons are chosen throughout
I am of the view, that the
word 'election' in the context in which it is used in
Section 137(l)(b) of the Constitution
means the process of
choosing by popular votes a candidate for a
political office in a democratic system of government. It is my candid
opinion that the 1st respondent's '1976 appointment' does not
fall within the ambit of Section
137(l)(b) of the 1999 Constitution. Put
differently, the 1st respondent was not in 1976 appointed to the
office of president of the Federal
Republic of Nigeria let alone by the popular vote of the people of this
country. This, is understandably so because the country was in a military
regime under the Supreme Military Council. Even if, but without conceding,
that the '1976 appointment' is by any strained construction equated to an
election into the office of the president of the Federal Republic of
Nigeria, the 1999 Constitution and the
provisions therein including the section under
consideration have no retrospective effect to
include the appointment made in 1976 long
before the coming into effect of the 1999
Constitution in May, 1999. It is a cardinal rule of English law that
no statute shall be construed to have
retrospective operation unless such a
construction appears very clearly in the terms of the Act, or
arises by necessary and distinct implications: In
Re Athlumney (1998)
2QB
at p.551,Maxwell on Interpretation of
Statutes supra at p.215. The position is the same in this country, for,
in the ease of Olaniyi v
Aroyehim
(1991) 5 NWLR (Pt. 194) 652, this court held:
"A Constitution like other
statutes operates prospectively
and not retrospectively unless it is expressly
provided to be otherwise.
Such legislation affects only rights
which came into existence after it has been
passed."
See also the case of
Afolabi & Ors. v
Governor of
The sum total of all that I
have been saying is that the 1st respondent was not disqualified
by reason of Section 137(l)(b)
of the 1999 Constitution from contesting the presidential election in
the year 2003. It is for the foregoing reasons in addition to those lucidly
set out in the leading judgment of my learned brother, Mohammed, J.S.C that
I also dismiss the appeal as being groundless. I abide by the order as to
costs made in the leading judgment.
Counsel
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