Muhammadu Buhari & Ors V Chief Olusegun Aremu Obasanjo & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C.

This is an interlocutory appeal from the ruling of Court of Appeal in a Presidential Election petition before that court challenging the return of 1st Respondent, Chief Olusegun Obasanjo and 2nd respondent, Alhaji Atiku Abubakar as President and Vice-President respectively of the Federal Republic of Nigeria for 2003-2007 tenure. The Court of Appeal, by the Constitution of the Federal Republic of Nigeria, 1999, has original jurisdiction to entertain such petition. When the petition was filed, the appellants Muhammadu Buhari, Chuba Okadigbo, the Presidential and Vice-Presidential candidates respectively, and the political party on whose platform they contested the said election brought a Motion on Notice praying as follows:

“MOTION ON NOTICE FOR INTERLOCUTORY INJUNCTION UNDER SECTION 6(6) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

TAKE NOTICE that this Honourable Court shall be moved on……the………. day of………. 2003 at 9:00 O’clock in the forenoon or so soon thereafter as applicants or counsel on their behalf may be heard for the following relief:

An order of this Honourable Court restraining the 1st and 2nd Respondents from presenting themselves for any Swearing-in Ceremony towards the commencement of the 20032007 tenure as President and Vice-President respectively of the Federal Republic of Nigeria on the 29th May, 2003, or any other date pending the determination of the substantive petition.

And for any other order or orders as the Honourable Court may deem fit and proper to make in the circumstance.

AND FURTHER TAKE NOTICE that the grounds upon which this application relies are as follows:

“(a) The petition raises very serious issues of law relating to the breach of the fundamental principles of the rules of natural justice and Section 42 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria which touch on the fundamental competence of the 3rd Respondent to conduct the election.

(b) The petition questions the eligibility of the 1st Respondent to contest the election.

(c) The petition raises very serious questions of validity of the election predicated on a prima facie breach of the principles enunciated by the Supreme Court decision in Madukolu v. Nkemdilim (1962) 25 SNLR 341.

(e) It is in the interest of the just determination of the election Petition that the status quo be maintained.”

The application was filed on 22nd May, 2003. The application was argued before the trial court on the same day, all the necessary parties having been served with the Hearing Notice. In a short ruling delivered on 27th May 2002, by Abudullahi, President,

Court of Appeal and concurred to by Oguntade, Mahmud Mohammed, Nsofor and Tabai, JJCA., the application was refused. Learned President held inter alia as follows:

“………….the Res before me in this application by its very nature indestructible or liable to extinction by the fact that the Respondents 1 & 2 are sworn in ……..I do not see how the swearing-in of the 1st respondent on 29th May, 2003, can derogate from the strength of the petitioners’ cause before this court. Clearly this application cannot be seen as one designed to protect any Res. This court will still be able to fairly and objectively adjudicate on the merit of the petition even if the 1st respondent is sworn in on 29th May, 2003.”

Further in the ruling, it was held that tenure of the 1st respondent (and of course that of 2nd respondent) would terminate on 29th May, 2003, and if nobody was sworn in on that day there would be a vacuum whereby there would be no constitutional government in Nigeria by 29th May, 2003. This section would be obviated by the provisions of S. 138 of Electoral Act, 2002, reading in subsections (1) and (2) as follows:

“(1) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the court, remain in office pending the determination of the appeal.

(2) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”

Against this ruling an interlocutory appeal was lodged in this court on 6th June, 2003, the grounds of appeal attached to the Notice of Appeal complain of:

1. error in law by the Court of Appeal in refusing to grant the injunction sought against 1st and 2nd respondents in that the election of the two respondents was in issue in the petition before trial court. At the competence of 3rd respondent, the Independent National Electoral Commission’s competence was being questioned and that the person returned could not in law be sworn to office until the election tribunal had decided one way or the other.
2. error by Court of Appeal in not adverting to decision of Supreme Court in similar cases, especially Collins Obih v. Sam Mbakwe (1984) 1 SCNLR 192, 202 paragraph E whereby, according to the grounds’ particulars, a returned candidate should and could not lawfully be sworn-in unless the Election Tribunal or Court seized with jurisdiction to determine such issue had pronounced on the rightful candidate returned.

The appeal therefore prayed that the swearing-in that took place on 29th day of May, 2002, be set aside and 1st and 2nd respondents shall continue in office in accordance with S. 135 (1) (a) of the Constitution providing as follows:

“135(1) subject to the provisions of this Constitution,a person shall hold the office of President until

(a) when his successor in office takes the oath of that office;”

By the time this appeal was lodged on 6th of June, 2003, the 1st and 2nd respondents had been sworn-in as President and Vice-President respectively by the Chief Justice of Nigeria at a ceremony on 29th May, 2003. Then one wonders what the appellants were pursuing from that day up to now. The issues formulated by them in this appeal seem to portray their mission, to wit;

“(1) Whether the 1st and 2nd Respondents whose qualification, election and return as the President and Vice President of the Federal Republic of Nigeria was being challenged in a competent court can validly be sworn into office before the determination of the Appellants’ Petition before the lower court.

(2) Whether the Court of Appeal was right in holding that the Res will not be destroyed if the application is not granted.”

It can be seen from these issues that what the appellants are after is to stop the respondents – Obasanjo and Atiku – from being sworn-in. However, the motion by its very nature is not directed at anybody other than the returned candidates not to present themselves for swearing-in on 29th day of May, 2003. Since the ruling by Court of Appeal refusing the application, a lot of water had passed under the bridge. It is common knowledge that the focus of the motion has been rendered irrelevant as Obasanjo and Atiku had been sworn-in as President and Vice-President respectively by the Chief Justice of Nigeria. The motion was not directed at the Chief Justice not to swear the two persons, but to prevent the two persons from presenting themselves for swearing-in on 29th May, 2003.

The application is injunctive and as such required the equitable discretion of the court; in short it is an equitable remedy that was being sought. It is far from being a constitutional issue despite the argument that it is constitutional. Chief Ahamba, SAN, for the appellants, posited that only persons validly elected can hold office of President or Vice-President of the Federal Republic of Nigeria and that until a person whose election is challenged is declared validly elected by Court of Appeal in an election petition, the person elected or returned cannot validly hold office. He, adverted to S. 239 (1) (a) of the Constitution. With greatest respect, I fail to find any help in this submission because that section has not said so. For the benefit of elaboration of this judgment I set out the section reading:

“239(1) subject to the provision of this Constitution the Court of Appeal shall, to the exclusion of any other court of law in Nigeria have original jurisdiction to hear and determine any question as to whether

(a) any person has been validly elected to the office of President or Vice President under this Constitution; or

(b) the term of the President or Vice President has ceased: or

(c) the office of President or Vice President has become vacant.”

To my mind this section has not helped the appellants’ argument, as could be seen from the clear purpose of the section as quoted above. Learned counsel cited the case of Collins Obih v. Sam Mbakwe (1984) 1 SCNLR 192, 202 and 203, a decision of this court on appeal from the decision of Electoral Tribunal sitting in Imo State Whereby Obaseki, JSC., opined as follows:

“……….the office of the governor is an elective office and that where an election or return is questioned in the competent High Court, the person declared duly elected or returned cannot take office until the completion of the hearing and determination of the question whether any person has been validly elected to the office. ……….”

Further, it was also opined that:

“It can therefore be seen that the crucial task of the qualification to hold office is the validity of the election. Where the question is raised, until its determination by the competent High Court no person can validly hold the office. The election can only be questioned by a petition to the High Court.”

Impressive as this line of argument may seem, it is a mere obiter dictum of a single Justice out of seven, the full court, that heard the appeal. Further, that obiter is not in the lead judgment of this court in that appeal. This means it was never an issue before the court that His lordship was giving opinion about. It is true S. 239 (1)(a) of 1999 Constitution is similar to S. 237(1) of 1979 Constitution but there is no need to embark on simple obiter as if it is the decision of the entire full Court.The Constitution should never be read to say what it has not provided even though it should be liberally construed to giving meaning and effectiveness so as not to have embarrassing anomaly that can result in vacuum of any office or cause serious crisis in the polity. The Constitution, I must point out, is a general statement of how Nigerians wish to be governed and the real way of governing will be found in all the laws, body of laws, that comply with the Constitution. The Constitution provides for elections and in S. 139 vests in National Assembly the power to make provisions, by way of an Act whereby persons may apply to Court of Appeal to determine who may question the election of President or Vice-President etc. The Electoral Act is to regulate the election generally. Thus, in S. 138 of Electoral Act, it is provided:

“S.138(1) If the Electoral Tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Electoral Tribunal or the court, remain in office pending the determination of the appeal

(2) If the Electoral Tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Electoral Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”

These are the provisions laid down by an Act of National Assembly to govern the period of transition between the Election proper and period of challenges before the election tribunals or the court to determine validity of the election and who has been validly elected. This covers all offices. In Collins Obih v. Sam Mbakwe (supra), Chief Ahamba, SAN, for the appellant, quoted with relish the judgment of Obaseki, JSC., that once a petition is filed against an election, the person elected could not be sworn into office not until the electoral tribunal or court, as the case may be, finally decided the validity of the election. That portion of the judgment was the learned Justice’s contribution to decision of the full court of seven. The other six Justices never alluded to this obiter dictum, and it was not the lead judgment.

effect or weight on the case.

Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority, they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have binding or weight on the case

In the present appeal, the subject of the application in the trial Court of Appeal was for the first and second respondents not to present themselves for swearing-in on 29th day of May, 2003, for the office of President and Vice – President of the Federal Republic of Nigeria. The remedy sought is injunctive, thus equitable. The two respondents aforementioned, on 29th May, 2003, not only presented themselves for swearing in to the offices, but were sworn-in. This court has not been told whether the two respondents did so with notice of the application. There is nothing to indicate in the Record of Proceedings that Independent National Electoral Commission, 3rd respondent, was even being asked not to present 1st, and 2nd respondents for swearing-in. It seems to be an application surfacing like a bird from the whirlwind. In normal cases, but this is not a normal case, contempt proceedings would have followed. However, equity that always follows the law, will never do anything in vain.4[ back to top ]What is this court to do knowing the event sought to be prevented had actually taken place This appeal is a mere application for this court to embark on adventure into academic discourse; a function not constitutionally our own.

Assuming swearing-in was not necessary for the 1st and 2nd respondents after they were returned by third respondent, what then was wrong with the surplusage They would still remain in office pending the determination of Court of Appeal on the petition challenging their return and possible decision on appeal to this court. Instead of concentrating on the vital petition before Court of Appeal, this type of application delays what should be expeditiously heard and disposed of.

I therefore find this appeal totally lacking in merit and I dismiss it.

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SC.133/2003