Falae vs Obasanjo, The Appeal Court Verdict text //Guardian

[Imeh Akpan]

 

Friday, April 16, 1999

Pardon for Obasanjo wipes out his conviction, says Court

Being text of the Appeal Court's judgment delivered by Justice Dahiru Musdapher

PURSUANT to the provisions of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999, hereafter referred to as the Decree, the Independent National Electoral Commission, herein referred to as INEC, conducted the presidential election throughout the federation on February 27, 1999. At the said election, two candidates vied for the post. Chief Samuel Oluyemi Falae was the candidate sponsored by the All Peoples Party, while General Olusegun Obasanjo was the candidate of the People's Democratic Party. On March 1, 1999, the Chief Electoral Officer of the Federation, the second Respondent herein, declared that Chief Samuel Oluyemi Falae received 11,110,287 votes and that the said General Olusegun Obasanjo received 18,739,154 votes. The second respondent aforesaid accordingly returned General Olusegun Obasanjo as being duly elected President of the Federal Republic of Nigeria.

Chief Samuel Oluyemi Falae (hereinafter referred to as the petitioner) felt agrieved and claimed to have had a right to be returned or elected at the election. He filed a petition in this court under the provisions of S.48 of the Decree and prayed for the following:

"(a)that it be determined that first respondent was not duly elected or returned, and that the petitioner was duly elected and ought to have been returned, or in the alternative;

(b)that the petitioner may have such further or other orders as may be just."

The petition was filed on the March 15, 1999 and was slightly amended with the leave of the court.

The grounds upon which the petition was premised may be summarised thus:-

• Non qualification;

• Disqualification;

• Corrupt practices;

(a) Bribery,

(b) Treating and or bribery,

• Irregularities;

• Vanished ballot papers;

• Electoral offences; and,

• Malpractices.

The petition contains copious particulars which if necessary I shall reproduce in the course of this judgment.

The respondents in the petition, are:

1. General Olusegun Obasanjo (hereinafter referred to as the first respondent) and 59 others being the second respondent aforesaid, the returning officer for the presidential election, INEC and 56 other electoral officials who conducted the election, spread over three states of the federation viz: Edo, Kaduna and Niger states. The first respondent filed a reply to the petition while the second to 60th respondents filed a joint reply. The petitioner also filed an answer to the respondents' reply. After the conclusion of the pre-trial procedure, and interlocutory applications, the matter proceeded to trial.

To prove the grounds of the petition, the petitioner called 15 witnesses, the first respondent called three witnesses while the second to 60th respondents did not call any witness but rested their defence on the evidence called by the other parties. Learned counsel for the parties proferred addresses.

1. Non-qualification

In paragraph 3 of the petition, the petitioner avered:

"The first respondent was at the time of the election not qualified for election to the office of the president.

Particulars

• He was at all times material hereto a member of a secret society, the Ogboni.

• He has been adjuged guilty of treason and/or treasonable felony by a tribunal.

• He was at all times material hereto a public officer by virtue of being a

member of the National Council of States."

The first respondent in his reply denied the allegations contained in 3(i) and 3(ii) and served in reference to paragraph 3(iii) in paragraph 8, 8a and 9 of his reply as follows:

"8. The first respondent will contend that the purported trial and conviction referred to in paragraph 3(11) of the petition were a nullity since the condition precedent to such trial were non-existent. 8(a) further to paragraph 8 supra, the first respondent states that the circumstances leading to his conviction under the phantom coup of 1995 and the grant of pardon to him are matters of public notoriety, nationally and internationally.

Alternatively

"9. The first respondent states that he has been granted full pardon by the Head of State and Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria in the exercise of his powers under S.161 of the Constitution of the Federal Republic of Nigeria as amended to grant pardon to convicted persons in deserving cases."

Now there is no doubt that by the provisions of S.3(i) (g) of the Decree aforsaid, no person shall be qualified for election to the office of President if "he is a mamber of any secret society."

But throughout the trial, there was no evidence led by the petitioner in respect of this allegation. It is elementary law which needs no citation of any authority that he who asserts must prove the allegation by credible evidence. It is also the law, that pleading is not evidence. The first respondent categorically denied being a member of any secret society and the onus is on the petitioner to adduce evidence to prove the allegation. He has failed to do so. I find the allegation contained under paragraph 3(1) of the petition not established and it is accordingly rejected by me.

On the issue of the first respondent being adjuged guilty of treason and/or treasonable felony, from the pleadings it is admitted though obliquely that the first respondent was convicted in 1995 but he was granted full pardon which wiped out whatever forfeiture, disabilities or disqualifications attached to the conviction. The only issue that is material for consideration is whether the pardon as contained in Exhibit 11 can qualify the first respondent to contest the election for the post of the President of Nigeria notwithstanding the provisions of S.13(c) (h) of the Decree. Chief Ajayi (SAN) for the petitioner submitted that despite the "pardon" as contained in the Gazette Exhibit 11, the first respondent remains disqualified, having been "adjudged guilty of treason." He further argued that there is a difference between a "full pardon and "pardon". He referred to Exhibit 12 where some people who were convicted were granted "full pardon." He asserted that the first respondent enjoyed only a "pardon" and not a "full pardon". He referred to paragraph 18 page 22 volume 67A of Corpus Juris Secondum. He also referred to the case of Okongwu Vs. The State (1986) 5 NWLR (Pt.44) 721. He also referred to JOWITTS Dictionary of English Law 2nd Edition Vol. 2 page 1310. He further submits that the effect of a "pardon" as against a "full pardon" is that it only wipes away the sentence, but the judgment remains formally unreversed. He referred to the case of R. V. FOSTER (1984) 2 ALL E.R. 678, 684-689,729-730 and 749.

He further submitted that the exercise of the power under S. 161 of the Constitution, the exercising authority, merely grants prerogative of mercy and not justice. He contrasted the provisions of Decree No.3 of 1977 S.73 thereof and the present legislation, that is S.13(1) (h) of the Decree. He pointed that the 1983 elections held under the 1982 Electoral Act does not contain any provisions relating to disqualifications. He maintained that no precedent exist for convicted persons to stand election on the grounds that they have been pardoned.

On the other hand, Chief Afe Babalola (SAN) on behalf of the first respondent submitted firstly that the petitioner has not proved the conviction as the law requires. I unhastingly disagree with him on this ground. By a look at the pleading as contained in paragraphs 8, 8a and 9 reproduced above, I am satisfied that there is an admission that the first respondent was convicted and pardoned. The only question that calls for discussion is whether the pardon, as contained in Exhibit 11, is sufficient to qualify the first respondent to vie for the post of the president of Nigeria. I therefore ignore all the arguments on the adequacy of pleadings and the failure of the petitioner to deal with the issues raised in the reply in his answers to the reply.

In any event, Chief Babalola submits that in Nigerian law there is no distinction between a "full pardon" and a "pardon". A pardon granted under S.161 of the constitution as amended, is to wipe out any penalty, foreiture or disability to the person benefiting the pardon, the innocence and all the civil liberties of the person are completely restored. He referred to Blacks Law Dictionary 6th Edition page 113. He also refers to Halsbury's Law of England 4th Edition Vol. 8 paragraph 952, the case of Hay Vs. Towers Division of London (1890) 24 4 B.D. 561 and the Okongwu case supra.

Mr. Kehinde Sofola SAN of counsel associates himself with the submissions of Chief Babalola.

Now section 161(1) of the constitution as amended reads:

"S. 161 (1) the Head of State may -

• grant any person concerned with or convicted of any offence granted - a pardon,

free or subject to lawful conditions".

In Exhibit 11, the Head of State granted General Olusegun Obasanjo pardon. The word used under S.161(1) and Exhibit 11 is pardon and in this context pardon may be with or without any conditions. It is clear from Exhibit 11 that the pardon granted to the first respondent was not made subject to any conditions. In my view, under the Nigerian law a "pardon" and "full pardon" have no distinction. A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and the privileges forefeited on account of the offence. See Verneco Inc Vs. Fidelity & Cas C. of New York 253 LA 721, 219 SO 2D 508, 511. The effect of a pardon is to make the offender, a new man Novus Homo, to acquit him of all corporal penalties and forefitures annexed to the offence pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification of the first respondent was to suffer because his conviction has been wiped out. His full civil rights and liberties are fully retored and accordingly, he has not been caught by the provisions of S.13(i) (h) of the decree.

The third limp of paragraph 3 of the petitioner complains that the first respondent was disqualified to contest the election on the ground that he was a public officer at all times material hereto. There is no doubt that under the provisions of S.3(i) (f) of the decree, a public officer who has not resigned, withdrawn or retired from employment at least 30 days before the date of the election is disqualified from contesting the office of the president of Nigeria. The petitioner has failed to adduce any credible evidence to substantiate the avement. It was merely suggested that because, the first respondent was a former Head of State, he has become a member of the National Council of State. The membership of the first respondent may be correct if the 1979 Constitution is fully operative. With the promulgation of Decree No.107 of 1993, the membership of the National Council of State has been altered not to include the former heads of state. in any event, as mentioned above, the petitioner has failed to adduce any evidence in proof of the allegation.

2. DISQUALIFICATION

The petitioner averred at per paragraph 4 of the petition as follows:-

"The first respondent was at the time of the election disqualified from being elected to the office of the president for non-compliance with Decree No. 35 of 1998, Decree No.6 of 1999 and INEC guidelines. Learned counsel referred to the case of The Tanton Election (1889) 21 LT 169 Vol. 15, Halbury's Laws of England 4th Edition paragraph 697, 698. He finally submitted that the election of the first respondent should be voided.

Mr. Kehinde Sofola (SAN) argued that S.41 of the decree does not apply as it did not mention newspapers. He further argued that S.14(3) cannot apply unless and until there is a conviction by a magistrate under S. 14(2). He referred to the case of (UNCP VS. DPN] (1998) 8 NWLR (Part 560) 90. He further argued that before an act of an agent can be binding on a candidate, the candidate must have known about it and authorised it. If he did not authorise it, he cannot be adversely affected by it. He added that the knowledge, consent or ratification of the candidate is necessary to make him liable. In the instant case, there was no evidence led to connect the first respondent with the publication. He submitted that any unsolicited support to a candidate, done without his consent, cannot affect him.

Now, there is no doubt that under the law if a candidate to presidential election engaged himself in campaigning on the election day, he is liable to be disqualified.

Section 14 (1) of the decree reads:

"A candidate campaigning for an election and his party shall campaign for the elections in conformity with the Political Parties (Registration and Activities) Decree 1998 and in accordance with such rules and guidelines as may be determined from time to time by the commission."

At the first glance, the prohibition of campaigning appears to be joint and indivisible against the candidate and the party. Which means that whatever the party has done binds the candidate but on a close examination of S. (2) which reads:

"A candidate or agent who contravenes the provisions of sub-section (1) of this section commits an offence under this decree and is liable on conviction to a fine."

"He sponsored and/or convinced at the conduct of public electioneering campaigns on the day of the presidential election through full page advertorials in several national newspapers including the Tribune, The Guardian, ThisDay and Vanguard of February 27, 1999 in breach of the provisions of the Political Parties (Registration and Activities). Decree 1998 and the guidelines prescribed by INEC and S.41 of the decree."

In proof of this allegation, the petitioner called PW2, PW4, PW5, PW8, PW9, PW10, PW11, PW12, PW14. The sum total of the evidence of these witnesses show that some advertorials appeared in some newspapers, carrying electioneering campaign materials on the day of the election. Evidence showing such campaign materials have been admitted. The evidence of these witnesses and the exhibits tendered virtually remain unchallenged and uncontradicted. I accordingly find as a fact that on the day of the presidential election, February 27, 1999, there appeared in some newspapers advertorials containing electioneering campaign materials which is contrary to S.14 of the decree. It is clearly prohibited by law to engage in any campaign for a candidate within 12 hours preceeding the date of the election. The evidence was that Senator Anietie Okon, the publicity secretary of the PDP placed for and partially paid for the advertisement in the papers. The first respondent denied sponsoring or conniving with any person to cause the advertorials to be published on the election day. Chief Afe Babalola submits that there is no specific mention of newspapers in all the legislations, but concedes that the advertorials may amount to campaign. He, however, submits that it must be proved that potential voters saw and read the campaign materials. He submits that no evidence was led in proof of that, despite the fact that one of the witnesses said he went to a polling station and sold some newspapers carrying the advertisement on the election day. He further submitted that there was no evidence linking the first respondent with the offending publication. It is argued that it was the PDP who sponsored the advertisements. There was no mention in the entire evidence that the first respondent sponsored, or connived with any body to place the campaign materials. It is further submitted that the act of campaigning on the election date is a criminal offence which needs to be proved beyond reasonable doubt and that there was no iota of evidence, as pleaded, linking the first respondent with the placement of the advertisement. There was also no evidence that expressed or implied the act. He again argued that unsolicited campaign did not make the first respondent liable. Learned counsel referred to and relied on the cases of Ayua Vs. Adasu (1992) 3 NWLR (pt.231) 598 at 611, Owoade Vs. Sekoni (1998) NWLR (pt. 563) 281 at 286, Oyegun Vs. Igbinedion (1991) 3 NWLR (pt.226) 746, Inukan Vs. Jobele (1998) 12 NWLR (pt. 579) 587 at 591.

The learned counsel further submitted that DW3 gave evidence on how the organisation called Obasanjo Campaign Organisation operated. He further submitted that DW3 was a witness of truth and should be believed when he said their organisation did not place the advertisement contained on page 28 of Exhibit 4 even though it contained their by-line. "The leader we can trust."

Chief Ajayi on one hand submitted that the election should be nullified because the first respondent breached the provisions of S.14(1) of the decree and was therefore disqualified to contest the election by virtue of S.14(3). He argued that there was uncontradicted evidence that four newspapers contained campaign materials of the first respondent on the election day. He argued that Exhibit 4 should be attributed to the Obasanjo Campaign Organisation because it contained their by-line. He further submits that there is no dispute that the PDP which sponsored the first respondent was engaged in the criminal advertisement in the papers. The PDP is an association that was committed and dedicated to ensure that the first respondent was elected. The first respondent knew that the PDP was active in virile campaign to get him elected. Under the circumstances, the learned counsel submitted that the PDP is the acknowledged agent of the first respondent and he was therefore equally guilty. This sub-section has clearly exonerated the candidate from the activities of his agent - the party - if and when it is not established that the candidate had anything to do with contravention. The law will appear to be that even if a political party engaged in criminal activities which could disqualify a candidate, they cannot affect the candidate unless it is shown that the candidate authorised or ratified the offending conduct. In the case of Ayua Vs. Adasu (supra) it was held by this court per Akanbi J.C.A. as he then was said at page 612.

"The long line of decided cases in our courts also support the view expressed above. For example in Abediran Vs. Ladepo (1991) 1 L.R.E.C.N 110 at 112, it was held that a candidate cannot be held responsible for what other people did in the form of "unsolicited aid" of which he or his election agent was ignorant. See Nuhu Musa Vs. NECON (1989) 1 NEPLR 20 at 36."

From the above, therefore, it is crystal clear that on the facts founds, the first respondent cannot be held responsible for contravening the laws prohibiting electioneering campaign on the election day.

In paragraph 698 of the Halsbury's Laws of England aforesaid, the learned editors summarised the law as follows:

"Evidence of agency; In order to prove agency, it is not necessary to show that the person was actually appointed by the candidate or that he was paid. The crucial test is whether there has been employment or authorisation of the agent by the candidate to do some election work or the adoption of his work when done. The candidate, however, is liable not only for the act of his agent whom he was himself appointed or authorised, but also for the act of agents employed by his election agent or others. He may be liable even though his election agent refused to employ the agent.

In the absence of authorisation or ratification, the candidate must be proved either by himself or his acknowledge agents to have employed the agent to act on his behalf. Mere non-interference of the candidate's party with persons who, feeling interested in the candidate's success, may act in support of his canvass is not sufficient to saddle the candidate with any unlawful acts of theirs."

In any events, the act of campaigning on Feburary 27, 1999 is a criminal offence and the person alleging such a misconduct against a candidate has to prove it beyond reasonable doubt. See Omoboriowo Vs. Ajasin (1984) 1 SCNLR 108, Nwobodo Vs. Onoh (1984) 1 SCNLR 1. I am of the view that though the PDP or Senator Anietie Okon contravened S.14 of the decree, that sin cannot be visited on the first respondent. There was no evidence whatever that he authorised the offending publication nor that he ratified it. The election of the first respondent in the presidential election cannot be voided on this ground. It has been shown that the first respondent has any hand in it.

Corrupt practices

The petitioner alleged as per paragraph 5 of the petition as follows:

"The election was voided by corrupt practices or offences at the elections contrary to the provisions of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999."

Particulars

• Bribery

The first respondent provided an unreasonably huge donation to his political party, the PDP, and to opinion leaders and key functionaries of the same, with a view to enabling his agents and holders of public offices within the political party of which he is a member to utilise the same for the purpose of inducing voters all over the country to vote for him. The first respondent paid millions of naira to these agents and public officials in the run-up to the presidential elections.

• Bribery

The first respondent caused, through his agents, various sums of money ranging from N25 to as much as N1,000 to be distributed to intending voters throughout the country with a view to inducing them to vote for him.

• Treating and/or bribery

Produced and caused to be distributed free of charge in public places and markets to potential voters with the intention of inducing them to vote for him - rice, garri and salt in bags with the inscriptions "Vote Obasanjo For President" with the PDP party symbol - an umbrella."

At the hearing of the petition, no evidence was led in proof of the original allegations contained under Paragraph 5 (i) and (ii). I deem the complaint abandoned and I hereby strike them out.

With reference to paragraph 5 (iii), two witnesses were called to prove the allegation that the first respondent produced and caused to be distributed, rice, garri and salt, with the intention of making potential voters to vote for him at the presidential election. PW3, Mr. Edun, testified that on Friday, Feburary 26, 1999 at about 5.00 p.m., one Mr. Bankole Akinjobi, the PRO of the PDP, convened a meeting at Ibara Town Hall and summoned all the community leaders including the witness and there Akinjobi asked the people at the meeting to give assistance to his party for the presidential election. The witness further stated that Akinjobi told them that the PDP had gone round to all the areas and solicited the support of the people. He thereupon produced two large bags out of which he brought a bag of rice, a bag of salt and a bag of garri. They counted 25 bags of rice, 25 bags of salt and 50 bags of garri. When Akinjobi wanted to distribute the commodities, the witness suggested that he kept the items and distribute them after the election. The items were distributed on Feburary 28, 1999 and the witness collected a bag each of rice, garri and salt. He tendered the three bags in evidence. The bags contained inscriptions "Vote Obasanjo for President." It also had the PDP symbol - the umbrella. The witness also alleged that when he met Akinjobi on the election day, he asked him whether they distributed the items to all other places to which Akinjobi replied: "Do not worry, we will win the election" or words to that effect. The witness during cross examination admitted that he is a member of the AD and that he was unhappy with the result of the election.

PW 6 also gave evidence on this point. He claimed he saw some members of PDP on Feburary 26, 1999, who distributed such items to them in order to induce them to vote for the first respondent. The witness also tendered in evidence these items.

Akinjobi gave evidence in this trial as the DW 2. He denied the allegations made against him. But what cannot be disputed in this matter is that some food items were seemingly produced to induce public to vote for the first respondent in the presidential election. If at all the first respondent produced the food items and distributed them in order to induce the electorate to vote for him, he would have commited an offence under S.30 (1) of the decree.

The section reads:

"A person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly, gives or provides or pays wholly or in part, the expense of giving or providing any food, drink, entertainment or provisions to or for any person for the purpose of influencing that person, or any other person to vote or refrain from voting,

at the election, commits the offence of treating."

In addition to the punishment provided, a person convicted for treating, shall stand disqualified and is not eligble during a period of five years if elected to retain his seat.

From the provisions of the definition of the section referred to above, even if the evidence of the two witnesses were not challenged, the first respondent must be shown either (by himself or by any other person) to have done the prohibited act. There was no evidence led at all to connect the first respondent with the conduct of PDP stalwarts referred to in the testimony of the two petitioners' witnesses about the distribution of the rice, salt and garri. It is an offence contrary to section 30 (1) of the decree and there is obligation on the petitioner to prove it beyond reasonable doubt. See Nwobodo Vs. Onoh (supra) and section 138 (1) of the Evidence Act. There is no shred of evidence linking the first respondent with this allegation. It suffices to say that allegation ought to be discountenanced.

I now consider the allegation of irregularities and malpractices made in paragraphs 6 to 22 of the petition. No evidence whatsoever was offered in proof of these allegations. A feeble attempt was made through the evidence of PW1 and 15 that INEC allowed more people to vote than would have voted if the projected number of qualified voters, projected at the growth rate of 2.83 per cent based on the 1991 census figures, had been followed. The short answer to this connection is that the law has prescribed that INEC must conduct the registration of voters for the purpose of the election. For INEC to have adopted any other method would have amounted to an infraction of the clear provision of the law. See Decree No.17 of 1998. In my view, I consider that the issue is one that cannot be legitimately considered by this court under S.51 of the decree which outlines the issues that can be canvassed in an election petition.

In the light of what I have stated above, I come to the conclusion that this petition lacks merit and ought to be dismissed, and I hereby dismiss it in its entirety.