General Muhammadu Buhari & Anor. V. Alhaji Mohammed Dikko Yusuf & Anor (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

This is an election petition in respect of the presidential election held on 19 April, 2003 pending at the Election Tribunal constituted by the Court of Appeal, Abuja Division, hereinafter referred to as “the Tribunal”. The petition was filed by Alhaji Mohammed Dikko Yusuf and the Movement for Democracy and Justice (MDJ), a registered political party. Alhaji Yusuf contested the presidential election under the MDJ party and lost.

Apart from making Chief Olusegun Aremu Okikiola Obasanjo who was elected or returned at the election as the 1st respondent, the petitioners also joined as 2nd, 3rd and 4th respondents respectively the Peoples Democratic Party (PDP), the party under which Chief Obasanjo contested, General Muhammadu Buhari who contested the election but was not returned and the All Nigeria People’s Party (ANPP), a party under which General Buhari contested. In addition, all the other 17 candidates who contested and lost together with their respective parties and the Alliance for Democracy (AD) which fielded no candidate at the presidential election were joined as the 5th-39th respondents respectively. Furthermore, the Independent National Commission (INEC), the Chairman of the Commission (Dr. Abel Guobadia, as Returning Officer) and the Resident Electoral Commissioners in 14 of the States of Nigeria were joined as the 40th-55th respondents. Finally one Dr. Ndidi Okereke-Onyiuke described as Co-Ordinator, Corporate Nigeria was joined as the 56th respondent.

General Buhari and the ANPP as, 3rd and 4th respondents in the proceedings at the tribunal applied to be struck off the petition on the ground that their joinder offended the provision of section 133(2) of the Electoral Act, 2002 (the Act). They argued that they were not necessary parties as envisaged by that provision. The record of proceedings shows that against that contention, the substance of the petitioners’ argument was stated thus, inter alia:

“We are opposing the application because in an election petition in which the entire election is sought to be voided, all the parties that score votes in the election are necessary parties to the petition … If we do not join the 3rd respondent in this petition in the event that election of 1st respondent is voided, then the court will look for the person who scored the highest votes next, which is the 3rd respondent. We cited the 3rd respondent in our petition in paragraph 17 … I urge the court to hold that the present election in which 19 candidates contested, each of them recording votes, a petition seeking to void the entire election is directed not solely at the winner, but also other candidates. They should therefore be made parties, particularly in this case there is a complaint against the 3rd respondent.”

The tribunal appeared to have found the petitioners’ argument valid. It held that since the petition contained allegations against the 3rd respondent, there was an issue of fair hearing involved, having regard, in particular to a prayer sought against him, which the tribunal thought would make the 3rd and 4th respondents proper parties to the petition, and which reads as follows:

“WHEREFORE your petitioners pray jointly and severally that –

(3) IT MAY BE DETERMINED THAT A FRESH ELECTION be held (excluding the 1st and 3rd respondents and their political parties who are disqualified from being fielded or from sponsoring candidates as the case may be by reason of their disqualification and contravention of the Electoral Act, (2003) in accordance with the provision of the Electoral Act, 2003”. (sic: 2002).

In the ruling by Abdullahi, PCA, the learned President held that “to respect the time honoured principle of audi alteram partem, the 3rd respondent ought to be given opportunity to defend the assertions made by the petitioner in paragraph 17 of the petition. In the same ratio, the 4th respondent ought to remain a party since it sponsored the 3rd respondent, particularly in view of the … prayer being sought by the petitioner in paragraph 3 of the petition.” The tribunal refused to strike out the said paragraph 17.

It is no warrant for bringing in a candidate who lost an election as a respondent because the petitioner has some allegation against him which he wishes to use in his petition as a weapon; or for retaining such candidate in the petition because of the principle of audi alteram partem, so that he would be heard in defence of the allegation. It is basic that the issue of a right to fair hearing for a party will not arise unless there has been compliance with section 133(2) of the Act which ensures that he is a necessary party. That means, of course, that no allegation can be allowed to be pleaded or made against a person if he is not a necessary party to the petition, or someone who will need to be called as a witness. But if he is a necessary party, it would offend against the rule of natural justice to dispose of the question involved in a manner to affect his interest without giving him an opportunity of being heard. That was the sense it was reasoned in election petitions, first by Obaseki, JSC in the case of Obih v. Mbakwe (1984) 1 SCNLR 192 at 204; and later by Belgore, JSC in the case of Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 397. In the former case, the question arose whether an incumbent Governor could be proceeded against as the respondent in an election petition since section 267 of the 1979 Constitution gave him immunity against civil or criminal proceedings. In reacting to a submission in that regard, after Obaseki, JSC recited section 121(2) of the Electoral Act, 1982 (similar to section 133(2) of the Act in question in this appeal), he said:

“It is clear from this section 121(2) of the Electoral Act, 1982 that the 1st respondent being the successful candidate is not the only statutory respondent. The Chief Federal Electoral Officer and the Returning Officer are also statutory respondents. As he is not the only party to the election petition, if his name is struck out of the petition enquiry, hearing of the question can still proceed

but as his right to hold the office is questioned, will it not offend against the rules of natural justice to dispose of the question without giving him an opportunity of being heard I think it will. The effect of the submission of Chief Williams being upheld is that section 121(2)(a) will be held to be in conflict with section 267(1)(a) of the Constitution and therefore void in so far as incumbent Governors whose re-elections are questioned are concerned.”

In the latter case, Belgore, JSC made reference to section 50(2) of the Presidential Election Decree, 1999 also similar to section 133 (2) of the Act, and said:

“Every person against whom an allegation is made must be confronted with that allegation so that he can offer his defence. That is the purport of section 50(2) of the Decree No.6 of 1999 (supra). The petitioner who complains that an electoral officer, a presiding officer, a returning officer or any other person involved in the election by conduct has initiated the election must presume that officer etc. as a necessary party and must make him a party. In paragraphs 9, 10, 12, 13, 14, 15, 16, 17, 18 and 19 of the petition (the petitioner) made many serious allegations including fraud and other electoral offences but the electoral officers, returning officers etc. have not been made parties i.e. respondents to the petition.”