GENERAL MUHAMMADU BUHARI & ANOR V. ALHAJI MOHAMMED DIKKO YUSUF & ANOR (2003)

Background

This appeal arose from the presidential election conducted in Nigeria on 19 April 2003. Chief Olusegun Obasanjo, who contested under the platform of the Peoples Democratic Party, was declared the winner on 22 April 2003. General Muhammadu Buhari, sponsored by the All Nigeria Peoples Party, came second, while Alhaji Mohammed Dikko Yusuf, sponsored by the Movement for Democracy and Justice, was also an unsuccessful candidate.

On 2 May 2003, Yusuf and the MDJ filed an election petition in the Court of Appeal, Abuja, challenging the result and seeking, among other reliefs, declarations that Obasanjo was not validly elected, that the election was void, and that a fresh election should be conducted. The petition joined 56 respondents, including Obasanjo, his political party, General Buhari, the ANPP, other unsuccessful candidates and their political parties, INEC officials, and another individual. Paragraph 17 of the petition alleged that Buhari was disqualified from contesting because, as a former Head of State and member of the Council of State, he remained a public officer and had not renounced that office within the constitutionally prescribed period.

Buhari and the ANPP applied to be struck out as respondents. They argued that section 133(2) of the Electoral Act 2002 restricted respondents in an election petition to the person whose election was challenged and electoral officers or other persons who took part in the conduct of the election where their conduct was complained of. The Court of Appeal rejected the application, principally on the basis that Buhari should be given an opportunity to answer the allegations against him under the principle of audi alteram partem. Buhari and the ANPP appealed to the Supreme Court.

Issues

1. Whether an unsuccessful presidential candidate and the political party that sponsored him could properly be joined as respondents in an election petition challenging the return of another candidate.
2. Whether paragraph 45 of the First Schedule to the Electoral Act authorised the joinder of unsuccessful candidates.
3. Whether the allegations of disqualification and the constitutional right to fair hearing justified retaining the appellants as parties.
4. Whether grounds of appeal could properly challenge the competence of the petition when that issue had not been raised or determined by the Court of Appeal.

Ratio Decidendi

The Supreme Court, by a majority, allowed the appeal. It held that section 133(2) of the Electoral Act clearly identified the permissible respondents to an election petition. They were the person whose election or return was complained of, together with an Electoral Officer, Presiding Officer, Returning Officer, or any other person who took part in the conduct of the election where the petition complained of that person’s conduct. An unsuccessful candidate was not within any of those categories.

The Court emphasised that an election petition is a special proceeding sui generis, governed primarily by the Constitution and the applicable electoral legislation. Ordinary common-law principles concerning joinder could not be used to enlarge a statutory list of parties. Applying the principle of expressio unius est exclusio alterius, the Court reasoned that the express identification of the persons who could be respondents excluded persons not mentioned, including defeated candidates and their sponsoring political parties.

The Court declined to apply the ejusdem generis rule as a necessary aid to construing the expression “any other person who took part in the conduct of an election.” That expression could include persons such as police or security personnel who participated in administering or affecting the conduct of an election, but it did not include candidates merely because they contested the election.

Court Findings

Paragraph 45 of the First Schedule, which stated that two or more candidates might be made respondents to the same petition, did not authorise the joinder of losing candidates. Properly interpreted with sections 131 and 133, it referred to situations in which the elections or returns of more than one successful candidate were challenged, such as where several candidates were returned in different electoral constituencies. It did not create a cause of action against a candidate who had not been elected.

The Court also held that the right to fair hearing could not be invoked to preserve a person who was not legally capable of being a respondent. Audi alteram partem protects a person who ought to be joined but has been excluded; it does not require the court to retain a party whom the governing statute does not permit to be joined. Consequently, the allegations in paragraph 17 could not justify Buhari’s continued presence as a respondent. The merits of those allegations were not considered because the appeal was interlocutory and concerned only joinder.

The Court further held that the appellants could not introduce a separate challenge to the competence of the petition on appeal when that issue had not been raised or decided in the lower court. A ground of appeal must arise from an issue properly submitted to and determined by the court of first instance, subject to recognised exceptions such as a genuine jurisdictional question.

Justice Ayoola dissented in part on the broader proposition. He accepted that, in the circumstances of this petition seeking to nullify the entire election, the appellants should be struck out. However, he considered it unsafe to hold that unsuccessful candidates could never be joined in any circumstances. In his view, where a court might make a consequential declaration under section 136(2) in favour of another unsuccessful candidate, the tribunal should retain a discretion to join that candidate for the limited purpose of protecting his interest and ensuring a fair hearing.

Conclusion

The Supreme Court set aside the ruling of the Court of Appeal and ordered that General Muhammadu Buhari and the All Nigeria Peoples Party be struck out as the third and fourth respondents in the election petition. The appeal was allowed. Costs of N2,500 were awarded in the tribunal and N10,000 in the Supreme Court against the respondents.

Significance

The decision is an important authority on parties to Nigerian election petitions and the statutory character of electoral litigation. It confirms that courts must give effect to clear electoral provisions and must not expand the class of respondents on grounds of convenience, perceived fairness, or the existence of allegations against an otherwise improper party. It also distinguishes between a candidate’s participation in an election as a contestant and a person’s participation in the conduct or administration of the election. The case remains significant for statutory interpretation, interlocutory appeals, fair hearing, and the limits of joinder in election proceedings.