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Home » Nigerian Cases » Supreme Court » Chief Chukwuemeka Odumegwu Ojukwu V Chief Olusegun Obasanjo & Ors (2004) LLJR-SC

Chief Chukwuemeka Odumegwu Ojukwu V Chief Olusegun Obasanjo & Ors (2004) LLJR-SC

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

LAWGLOBAL HUB Lead Judgment Report

UTHMAN MOHAMMED. JSC

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 Democtratic 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 Election 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.

(i) AN ORDER invalidating the return of Chief Olusegun Obasanjo, the 1st Respondent as the President – elect in the April 19th, 2003 Presidential Election.

(ii) AN ORDER commanding the 2nd Respondent to conduct another Presidential Election.

(iii) 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.

(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, JCA (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 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 election.

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 a 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.”

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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 a 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 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 (I) (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 references to the cases of Fisher V. Bell (1961) l QB 394 at 399.

He also referred to the case of Ejilemele V. Opara (2003) 7 SCM 187, (2003) 9 NWLR (Pt 826) 536 at 559 where Niki Tobi, JSC, 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 to 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 a 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.

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Learned counsel for the 4th respondent, Roland Otaru, gave a list of relevant facts which establish that the provisions of section 137 (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 Federal Republic of Nigeria, 1999 enacts that the constitution shall come into force on 29th day of May 1999.

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.

S.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. – Attorney – General Bendel State V. Attorney – General of the Federation (1981) S.C.l13.

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 intendement of its framers. In P .D.P. V. INEC (1999) II NWLR (Pt 626) 200 at page 242 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) A.C. 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 appointment of “President of the Federal Republic of Nigeria.”

Section 6(1)(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.

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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, it 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 the “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 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 (I) (b) of 1999 Constitution.

In sum, this Petition is devoid of any merit and I agree that it is an attempt to trivialise the judicial process. The appeal is accordingly dismissed. I affirm the decision of the Court of Appeal and award N 10,000.00 costs to each set of the respondents.


SC. 199/2003

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