Chief Chukwuemeka Odumegwu Ojukwu V. Chief Olusegun Obasanjo & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

On 19th of April, 2003 presidential election was held in Nigeria. The appellant, Chief Chukwuemeka Odumegwu Ojukwu, contested the said election under the platform of All Progressive Grand Alliance (APGA). The 1st respondent, Chief Olusegun Obasanjo, also contested the said election under the umbrella of People’s Democratic Party (PDP), the 4th respondent, in this appeal. At the end of the exercise, the 1st respondent was duly returned as the winner by the Chairman of the Independent National Electoral Commission, the 3rd respondent, in this appeal.

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 Nigeria in 1976 and as such he could not have been elected as President of Nigeria in the alleged election. The 1st respondent further submitted that he had only been elected to the office of President in one previous election, that is, the 1999 election. The 1st respondent concluded the averments in his reply to the petition by submitting that he would lead evidence to show that the petition is totally misconceived, frivolous and a mere attempt to trivialise the judicial process.

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, JCA (concurred with by Oguntade, lCA (as he then was), Mahmud Mohammed, Nsofor and Tabai, JJCA) 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 S. 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 Sed) 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 election. Learned counsel referred to the definition of the word “election” in Black’s Law Dictionary, 6th edition thus: