Chief Obafemi Awolowo V. Alhaji Shehu Shagari & Ors (1979)

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FATAYI-WILLIAMS, JSC.

In an election petition presented to the Presidential Election Tribunal in Lagos following the declaration by one F.L.O. Menkiti, the returning Officer at the Presidential Election (now third respondent), that Alhaji Shehu Shagari had been duly elected President of the Federal Republic of Nigeria, Chief Obafemi Awolowo (now appellant) contended as follows:-

1. That in the election held on the 11th day of August, 1979, Chief (Dr.) Nnamdi Azikiwe, Chief Obafemi Awolowo,Alhaji Aminu Kano, Alhaji Waziri Ibrahim and Alhaji Shehu Shagari were candidates;

2. that the said Mr. F.L.O. Menkiti,duly returned Alhaji Shehu Shagari as the duly elected President of the Federal Republic of Nigeria;

3. that the said Alhjaji Shehu Shagari was at the time of the election not duly elected by a majority of lawful votes at the election as he has not satisfied Section 34 A subsection 1(c) (ii) of the Electoral Decree, 1977, which had been inserted by Section 7 of the Electoral (Amendment) Decree, 1978;

4. that although the said Alhaji Shehu Shagari received 5, 688, 857 votes at the said election, he had less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation; and

5. that the election of the said Alhaji Shehu Shagari was invalid by reason of non-compliance with the provisions of Part II of the Electoral Decree, 1977, which include the provisions of Section 34 A(1) (c) (ii) of the said Decree.

The petitioner thereupon prayed –

(i) that the Tribunal should determine that the said Alhaji Shehu Shagari (who we shall hereinafter refer to as the 1st respondent) was not duly elected or returned and that his election or return was void; and

(ii) that Alhaji Ahmadu Kurfi, the Chief Electoral officer of the Federation and Mr. F.L.O Menkiti, the Returning Officer at the Presidential Election (hereinafter referred to respectively as the 2nd and 3rd respondents), be ordered to arrange for an election to be held in accordance with the provisions of Section 34 A(3) of the Electoral(Amendment) Decree (Decree No. 32 of 1979).

In their respective replies to the petition,the lst, 2nd and 3rd respondents denied all the averments in paragraphs 3, 4 and 5 of the petition and contended that the 1st respondent was duly returned by a majority of lawful votes totalling 5, 688, 857. The 1st respondent also contended:-

(a) that the election was conducted in actual compliance, or alternatively, in substantial compliance with the provisions of the Part II of the Electoral Decree 1977, as amended, and that the non-compliance (which the 1st respondent denies) does not affect the result of the election;

(b) that, at the said election, he:

(i) obtained the highest votes cast;and

(ii) had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation, that is in 19 States;

(c) that the statutory power to arrange or to hold an Electoral College or Electoral Colleges is vested only in the Electoral Commission and the 2nd and 3rd respondents have no power to arrange for an election to be held in accordance with the provisions of S.34A(3)of the Electoral (Amendment) Decree No. 32 of the 1979 and the Electoral Commission is not a party to the present proceedings; and (d) that even if, contrary to his contention, it is permissible for the 2nd and 3rd respondents to arrange for the holding of electoral colleges, the 1st respondent contends that the 2nd and 3rd respondents cannot lawfully exercise such powers under S.34A(3) of the Electoral (Amendment) Decree No.32 of 1979 as prayed by the petitioner.

In his evidence before the Tribunal given in support of his petition, the petitioner testified as follows:- “I as a lawyer and a politician am conversant with the provisions of the Electoral Decree. There are 2 requirements before one can be declared a winner at the Presidential Election namely where there are more than two candidates, the first requirement, the winning candidate must score the highest number of votes and in addition he must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation. There are nineteen States in the Federation as at now.

Each of at least two thirds of all the States in the Federation is 13. The 1st respondent scored not less than 25% in the following 12 States, Bauchi, Bendel, Benue, Borno, Cross River, Gongola,Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. The result of the election was announced on 16th August, 1979. As far as the records show, no candidate scored not less than 25% of the votes cast in 13 States. 1st respondent was declared as having won the Presidential election by the 3rd respondent. I disagree with the result declared on the election and that is why I am here for it to be nullified. I am therefore asking the Tribunal (1) that the purported election of 1st respondent Alhaji Shehu Shagari be declared void and (2) that the FEDECO should hold the election which should have followed on the failure of all the candidates to win at the first ballot.” (The underlining is ours) .

To questions asked under cross-examination, the petitioner testified further as follows:- “Of the five candidates at the election, the 1st respondent scored the highest votes, and none of the other four candidates obtained more than 25% in more than six states. I know that I did not score more than 25% of the votes cast in more than 6 states. I cannot speak for the others. I said that 2/3 of 19 is 13 and I will say that 2/3 of 20 is 14. I will also say that 2/3 of 21 is 14. I say all these in relation to States. I say that in Exhibit T2 the votes of the various candidates are stated.

In getting the percentage of the votes scored by each candidate State by State, votes scored by each were used. It is correct to state that the 1st respondent scored 25% of the votes cast in 12 States because of the total votes scored in those States. I now see Exhibit T3. There is a breakdown therein of the number of votes scored by each candidate in each Local Government Area in Kano State. It is also correct to say that it was because of number of votes that 1st respondent scored in Kano State that he was able to get 19.94%.

Each of the Local Government Area is a unit of the State.”  At this stage, it is relevant to point out that the document (Exhibit T2) showed that the 1st respondent scored 772,206 popular votes more than those scored by the petitioner. The petitioner called only one witness – Professor Ayodele Awojobi – a professor of Engineering at the University of Lagos and an applied mathematician. He testified, inter alia, as follows:- “I see Exhibit T2. Under Kano State,the average total votes cast for the NPN was 19.94%. I see Exhibit T3. There are 38,760 possible 2/3 of Kano State going by Local Government Area. In the absence of a computer, it will take at least one year to declare the result in respect of 2/3 of Kano State.” (The underlining is ours) Incidentally, the 1st respondent is a member of the National Party of Nigeria (NPN).  None of the respondents called any evidence. In their respective submissions%

Other Citation: (1979) LCN/2141(SC)