Buhari v. Obasanjo (2005)

[2005] 13 .
Buhari v. Obasanjo
1

1.
MUHAMMADU BUHARI

2.
ALL NIGERIA PEOPLES PARTY (ANPP)

V.

1.
CHIEF OLUSEGUN AREMU OBASANJO

2.
ALHA JIATIKU ABUBAKAR

3.
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

4.
CHIEF ELECTORAL OFFICER AT THE PRESIDENTIAL ELECTION

5.
CHIEF RETURNING OFFICER AT THE PRESIDENTIAL ELECTION

6.
RESIDENT ELECTORAL COMMISSIONER ASIA STATE

7.
RESIDENT ELECTORAL COMMISSIONER ADAMAWA STATE

8.
RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE

9.
RESIDENT ELECTORAL COMMISSIONER BAUCHI STATE

10.
RESIDENT ELECTORAL COMMISSIONER BAYELSA STATE

11.
RESIDENT ELECTORAL COMMISSIONER BENUE STATE

12.
RESIDENT ELECTORAL COMMISSIONER BORNO STATE

13.
RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE

14.
RESIDENT ELECTORAL COMMISSIONER DELTA STATE

15.
RESIDENT ELECTORAL COMMISSIONER EBONYI STATE

16.
RESIDENT ELECTORAL COMMISSIONER EDO STATE

2
.
5 September 2005

17.
RESIDENT ELECTORAL COMMISSIONER EKITISTATE

18.
RESIDENT ELECTORAL COMMISSIONER ENUGU STATE

19.
RESIDENT ELECTORAL COMMISSIONER GOMBE STATE

20.
RESIDENT ELECTORAL COMMISSIONER IMO STATE

21.
RESIDENT ELECTORAL COMMISSIONER JIGAWA STATE

22.
RESIDENT ELECTORAL COMMISSIONER KADUNA STATE

23.
RESIDENT ELECTORAL COMMISSIONER KANO STATE

24.
RESIDENT ELECTORAL COMMISSIONER KATSINA STATE

25.
RESIDENT ELECTORAL COMMISSIONER KEBBI STATE

26.
RESIDENT ELECTORAL COMMISSIONER KOGI STATE

27.
RESIDENT ELECTORAL COMMISSIONER KWARA STATE

28.
RESIDENT ELECTORAL COMMISSIONER LAGOS STATE

29.
RESIDENT ELECTORAL COMMISSIONER NASARAWA STATE

30.
RESIDENT ELECTORAL COMMISSIONER NIGER STATE

31.
RESIDENT ELECTORAL COMMISSIONER OGUN STATE

32.
RESIDENT ELECTORAL COMMISSIONER ONDO STATE

33.
RESIDENT ELECTORAL COMMISSIONER OSUN STATE

34.
RESIDENT ELECTORAL COMMISSIONER OYO STATE

35.
RESIDENT ELECTORAL COMMISSIONER PLATEAU STATE

36.
RESIDENT ELECTORAL COMMISSIONER RIVERS STATE

[2005] 13 .
Buhari v. Obasanjo
3

37.
RESIDENT ELECTORAL COMMISSIONER SOKOTO STATE

38.
RESIDENT ELECTORAL COMMISSIONER TARABA STATE

39.
RESIDENT ELECTORAL COMMISSIONER YOBE STATE

40.
RESIDENT ELECTORAL COMMISSIONER ZAMFARA STATE

41.
RESIDENT ELECTORAL COMMISSIONER FEDERAL CAPITAL TERRITORY ABUJA

42.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION AKWA IBOM STATE

43.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION ABIA STATE

44.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION ADAMAWA STATE

45.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION ANAMBRA STATE

46.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION BAUCHI STATE

47.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION BAYELSA STATE

48.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION BENUE STATE

49.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION BORNO STATE

50.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION CROSS RIVER STATE

51.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION DELTA STATE

52.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION EBONYI STATE

53.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION EDO STATE

54.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION EKITI STATE

4
.
5 September 2005

55.
STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ENUGU STATE

56.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION GOMBE STATE

57.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION IMO STATE

58.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION JIGAWA STATE

59.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KADUNA STATE

60.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KANO STATE

61.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KATSINA STATE

62.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KEBBI STATE

63.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KOGI STATE

64.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION KWARA STATE

65.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION LAGOS STATE

66.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION NASARAWA STATE

67.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION NIGER STATE

68.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION OGUN STATE

69.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION ONDO STATE

70.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION OSUN STATE

71.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION OYO STATE

72.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION PLATEAU STATE

73.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION RIVERS STATE

[2005] 13 .
Buhari v. Obasanjo
5

74.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION SOKOTO STATE

75.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION TARABA STATE

76.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION YOBE STATE

77.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION ZAMFARA STATE

78.
STATE RETURNING OFFICERS AT

PRESIDENTIAL ELECTION FEDERAL CAPITAL TERRITORY ABUJA

79.
ELECTORAL OFFICER OGU/BOLO LOCAL GOVERNMENT AREA OF RIVERS STATE

80.
ELECTORAL OFFICER IKWERE LOCAL GOVERNMENT AREA OF RIVERS STATE

81.
WARD RETURNING OFFICER OMERELU WARD 5 IKWERE LOCAL GOVERNMENT AREA RIVERS STATE

82.
ELECTORAL OFFICER OPOBO/NKORO LOCAL GOVERNMENT AREA RIVERS STATE

83.
ELECTORAL OFFICER TAI L.G.A. RIVERS STATE

84.
ELECTORAL OFFICER ABUA/ODUAL L.G.A. RIVERS STATE (MR. MGBERE)

85.
ELECTORAL OFFICER PORT HARCOURT L.G.A. RIVERS STATE

86.
ELECTORAL OFFICER OBIO/AKPOR L.G.A. RIVERS STATE

87.
ELECTORAL OFFICER AHOADA-WEST L.G.A. RIVERS STATE

88.
ELECTORAL OFFICER ETCHE L.G.A. RIVERS STATE (MR. SEKIBO)

89.
ELECTORAL OFFICER DEGEMA L.G.A. RIVERS STATE

90.
ELECTORAL OFFICER BONNY L.G.A. RIVERS STATE

91.
ELECTORAL OFFICER EMOHUA L.G.A. RIVERS STATE

6
.
5 September 2005

  1. ELECTORAL OFFICER ANDONI L.G.A. RIVERS STATE

93.
ELECTORAL OFFICER ONELGA L.G.A. RIVERS STATE

94.
ELECTORAL OFFICER AKUKU-TORU L.G.A. RIVERS STATE

95.
RETURNING OFFICER ASARI L.G.A. RIVERS STATE

96.
ELECTORAL OFFICER GOKAMA L.G.A. RIVERS STATE

97.
ELECTORAL OFFICER OGBIA L.G.A. BAYELSA STATE

98.
ELECTORAL OFFICER SOUTH IJAW L.G.A. BAYELSA STATE

99.
ELECTORAL OFFICER SAGBAMA L.G.A. BAYELSA STATE

100.
ELECTORAL OFFICER EKEREMOR L.G.A. BAYELSA STATE

101.
ELECTORAL OFFICER KOLOKUMA L.GA. BAYELSASTATE

102.
ELECTORAL OFFICER AKANKPA L.G.A. BAYELSA STATE

103.
ELECTORAL OFFICER CALABAR MUNICIPALITY COUNCIL

104.
ELECTORAL OFFICER ETIM EKPO L.G.A. AKWA IBOM STATE

105.
ELECTORAL OFFICER ORUK ANAM L.G.A. AKWA IBOM STATE

106.
ELECTORAL OFFICER NSIT UBIUM L.G.A. AKWA IBOM STATE

107.
ELECTORAL OFFICER IKA L.G.A. AKWA IBOM STATE

108.
ELECTORAL OFFICER IKOT ABASI L.G.A. AKWA IBOM STATE

109.
ELECTORAL OFFICER MKPAT ENIN L.G.A. AKWA IBOM STATE

110.
ELECTORAL OFFICER UYO L.G.A. AKWA IBOM STATE

111.
ELECTORAL OFFICER URUAN L.G.A. AKWA IBOM STATE

[2005] 13 .
Buhari v. Obasanjo
7

     112.            ELECTORAL OFFICER IBSESIKPO/ASUTAN L.G.A. AKWA IBOM STATE

       113.            ELECTORAL OFFICER NSIT ATTAI L.G.A.

                         AKWA IBOM STATE

     114.             ELECTORAL OFFICER MBO L.G.A. AKWA IBOM                                  STATE

      115.            ELECTORAL OFFICER OKOBO L.G.A. AKWA

                         IBOM STATE

 116.     ELECTORAL OFFICER URUE EFFIONG/ORUKO                               L.G.A. AKWA IBOM STATE

    117.        ELECTORAL OFFICER OVIA NORTH-WEST L.G.A.                              EDO STATE

      118.            ELECTORAL OFFICER SOUTH-EAST L.G.A.

                         EDO STATE

      119.            ELECTORAL OFFICER ORHIONWON L.G.A.

                         EDO STATE

       120.           ELECTORAL OFFICER ESAN-WEST L.G.A.

                         EDO STATE

       121.          ELECTORAL OFFICER ESAN-CENTRAL L.G.A.

                        EDO STATE

       122.          ELECTORAL OFFICER IGUEBAN L.G.A.

                        EDO STATE

       123.          ELECTORAL OFFICER ESAN-NORTH EAST L.G.A.

                        EDO STATE

      124.           ELECTORAL OFFICER ESAN SOUTH-EAST L.G.A.

                        EDO STATE

      125.           ELECTORAL OFFICER OWAN WEST L.G.A.

                        EDO STATE

      126.           ELECTORAL OFFICER ETSAKO CENTRAL L.GA.

                        EDO STATE

      127.           ELECTORAL OFFICER AKOKO-EDO L.G.A

                         EDO L.G.A.
      128.           ELECTORAL OFFICER UKWANI L.G.A. DELTA

                        STATE

     129.            ELECTORAL OFFICER NDOKAN WEST L.G.A.

                        DELTA STATE

     130.            ELECTORAL OFFICER UGHELLI NORTH L.G.A.

                        DELTA STATE

    131.             RETURNING OFFICER HONG L.G.A. ADAMAWA

                        STATE

8
.
5 September 2005

132.
ELECTORAL OFFICER HONG L.G.A.

ADAMAWA STATE

133.
ELECTORAL OFFICER MICHIKA L.G.A.

ADAMAWA STATE

134.
RETURNING OFFICER MICHIKA L.G.A. ADAMAWA STATE

135.
RETURNING OFFICER MUBI NORTH L.G.A. ADAMAWA STATE

136.
RETURNING OFFICER FUFORE L.G.A. ADAMAWA STATE

137.
PRESIDING OFFICER MALLAGUM WARD MAKARFI L.G.A. KADUNA STATE

138.
ELECTORAL OFFICER JEMA’A L.G.A. KADUNA STATE

139.
PRESIDING OFFICER ARABI WARD KAGARKO L.G.A. KADUNA STATE

140.
ELECTORAL OFFICER KACHIKA L.G.A. KADUNA STATE

141.
ELECTORAL OFFICER JABA L.G.A. KADUNA STATE

142.
ELECTORAL OFFICER ZANGO-KATAF L.G.A. KADUNA STATE

143.
ELECTORAL OFFICER OGRI-MAGONGO L.G.A. KOGI STATE

144.
ELECTORAL OFFICER BUBU L.G.A. KOGI STATE

145.
ELECTORAL OFFICER BASA L.G.A. KOGI STATE

146.
RETURNING OFFICER OKENKE L.G.A. KOGI STATE

147.
RETURNING OFFICER YAGBA EAST L.G.A. KOGI STATE

148.
RETURNING OFFICER IGBOEZE L.G.A. ENUGUSTATE

149.
ELECTORAL OFFICER EZE-AGU L.G.A. ENUGU STATE

150.
ELECTORAL OFFICER-ABA SOUTH L.G.A. ASIA STATE

151.
RETURNING OFFICER ABA SOUTH L.G.A. ABIA STATE

[2005] 13 .
Buhari v. Obasanjo
9

        152.        RETURNING OFFICER ABA NORTH L.G.A. ABIA

                       STATE

        153.       PRESIDING OFFICER ST. CATHERINES POLLING

                      STATION NKWERE L.G.A. IMO STATE

        154.       PRESIDING OFFICER OKWARACHI POLLING

                      STATION NKWERE L.G.A. IMO STATE

        155.       PRESIDING OFFICER UMUKDU POLLING STATION

                      NKWERE L.G.A. IMO STATE

        156.       RETURNING OFFICER NKWERE L.G.A. IMO STATE

        157.       ELECTORAL OFFICER OGUTA L.G.A. IMO STATE

        158.       RETURNING OFFICER OGUTA L.G.A. IMO STATE

        159.       PRESIDING OFFICER NDIORINIBE SQUARE

                      POLLING STATION OGUTA L.G.A. IMO STATE

        160.       PRESIDING OFFICER AMAKPONUDU PRIMARY

                      SCHOOL OGUTA L.G.A. IMO STATE

        161.       ELECTORAL OFFICER ORSU L.G.A. IMO STATE

        162.       RETURNING OFFICER ORSU L.G.A. IMO STATE

        163.       ELECTORAL OFFICER IDIATOR NORTH L.G.A.

                      IMO STATE

        164.       RETURNING OFFICER IDIATOR NORTH L.G.A.

                      IMO STATE

        165.       PRESIDING OFFICER POLLING STATION 001

                      AMANZE/UMUNGWA WARD 11 OBOWO L.G.A. IMO

                      STATE

        166.       PRESIDING OFFICER UNIT 004 AMANZE/

                      UMUNGWA, WARD 11 OBOWO L.G.A. IMO STATE

        167.       PRESIDING OFFICER UMUNWANDU HALL

                      POLLING STATION OBOWO L.G.A. IMO STATE

10
.
5 September 2005

168.
ELECTORAL OFFICER OBOWO L.G.A. IMO

STATE

169.
RETURNING OFFICER OBOWO L.G.A. IMO

STATE

170.
ELECTORAL OFFICER ISIALA MBARO L.G.A. IMO STATE

171.
RETURNING OFFICER ISIALA MBARO NORTH L.G.A. IMO STATE

172.
ELECTORAL OFFICER ONUIMO L.G.A. IMO STATE

173.
RETURNING OFFICER ONUIMO L.G.A. IMO STATE

174.
ELECTORAL OFFICER OKIGWE L.G.A. IMO STATE

175.
RETURNING OFFICER OKIGWE L.G.A. IMO

STATE

176.
PRESIDING OFFICER STATE PRIMARY SCHOOL POLLING STATION OKIGWE L.G.A. IMO STATE (MRS. MBAONU)

177.
ELECTORAL OFFICER IHITTE-UBORRE L.G.A. IMO STATE

178.
RETURNING OFFICER IHITTE-UBORRE L.G.A. IMO STATE

179.
ELECTORAL OFFICER AHIAZU MBAISE L.G.A. IMO STATE

180.
RETURNING OFFICER AHIAZU MBAISE L.G.A. IMO STATE

181.
ELECTORAL OFFICER ABOH MBAISE L.G.A. IMO STATE

182.
RETURNING OFFICER ABOH MBAISE L.G.A. IMO STATE

183.
ELECTORAL OFFICER IKEDURU L.G.A. IMO STATE

184.
RETURNING OFFICER IKEDURU L.G.A. IMO STATE

185.
ELECTORAL OFFICER OWERRI

MUNICIPAL WARD IMO STATE

186.
RETURNING OFFICER OWERRI

MUNICIPAL WARD IMO STATE

[2005] 13 .
Buhari v. Obasanjo
11

187.
ELECTORAL OFFICER NGOR-OKPALA L.G.A. IMO STATE

188.
RETURNING OFFICER NGOR-OKPALA L.G.A. IMO STATE

189.
ELECTORAL OFFICER EZINIHITTE L.G.A. IMO STATE

190.
RETURNING OFFICER EZINIHITTE L.G.A. IMO STATE

191.
ELECTORAL OFFICER JALINGO L.G.A. TARABA STATE

192.
ELECTORAL OFFICER SARDAUNA L.G.A. TARABA STATE

193.
ELECTORAL OFFICER YORO L.G.A. TARABA STATE

194.
RETURNING/COLLATION OFFICER KASA1 WARD YORO L.G.A. TARABA STATE

195.
RETURNING/COLLATION OFFICER AKWANA WARD WUKARI L.G.A. TARABA STATE

196.
RETURNING/COLLATION OFFICER R/KADA WARD WUKARI L.G.A. TARABA STATE

197.
RETURNING/COLLATION OFFICER MANYA WARD CODE OF TAKUM L.G.A. TARABA STATE

198.
PRESIDING OFFICER WUKARI L.G.A. TARABA STATE

199.
PRESIDING OFFICER K/WAKILI POLLING STATION TARABA STATE

200.
PRESIDING OFFICER TIKERI TANJI HASKE POLLING STATION TARABA STATE

201.
PRESIDING OFFICER KUNA TIRANI POLLING STATION TARABA STATE

202.
PRESIDING OFFICER TIKARI POLLING STATION TARABA STATE

203.
PRESIDING OFFICER BARINYA POLLING STATION TARABA STATE

204.
PRESIDING OFFICER PATI POLLING STATION TARABA STATE

205.
ELECTORAL OFFICER KURMI L.G.A. TARABA STATE

12
.
5 September 2005

206.
RETURNING OFFICER KURMI L.G.A. TARABA STATE

207.
ELECTORAL OFFICER TAKUM L.G.A. TARABA STATE

208.
RETURNING OFFICER TAKUM L.G.A. TARABA STATE

209.
RETURNING OFFICER WUKARI L.G.A. TARABA STATE

210.
PRESIDING OFFICER BYE-YORA POLLING STATION WUKARI L.G.A. TARABA STATE

211.
PRESIDING OFFICER POLLING STATION CODE 001 YORO L.G.A. TARABA STATE

212.
WARD RETURNING/COLLATION OFFICER AKWANA WARD WUKARI L.G.A. TARABA STATE

213.
WARD RETURNING/COLLATION OFFICER MAJE WARD TAKUM L.G.A. TARABA STATE

214.
RETURNING OFFICER LAU L.G.A. TARABA STATE

215.
RETURNING OFFICER GASHAKA L.G.A. TARABA STATE

216.
ELECTORAL OFFICER GUYUK L.G.A. ADAMAWA STATE

217.
RETURNING OFFICER JADA L.G.A. ADAMAWA STATE

218.
RETURNING OFFICER TOUNGO L.G.A. ADAMAWA STATE

219.
PRESIDING OFFICER LANDE CHITTA POLLING STATION ADAMAWA STATE

220.
RETURNING OFFICER YARIMA ISA L.G.A. ADAMAWA STATE

221.
PRESIDING OFFICER GUNTI DEUTIPSAN MUMUYE POLLING STATION ADAMAWA STATE

222.
PRESIDING OFFICER LUGGER DANTA POLLING STATION ADAMAWA STATE

223.
RETURNING OFFICER SARDAUNA L.G.A. TARABA STATE

224.
RETURNING OFFICER MAYO BELWA L.G.A. ADAMAWA STATE

[2005] 13 .
Buhari v. Obasanjo
13

225.
ELECTORAL OFFICER MADAGALI L.G.A.

ADAMAWA STATE

226.
RETURNING OFFICER MADAGALI L.G.A. ADAMAWA STATE

227.
ELECTORAL OFFICER SONG L.G.A. ADAMAWA STATE

228.
RETURNING OFFICER SONG L.G.A. ADAMAWA STATE

229.
PRESIDING OFFICER BENJIRAN POLLING STATION GUYUK L.G.A. ADAMAWA STATE

230.
PRESIDING OFFICER BOBINI POLLING STATION GUYUK L.G.A. ADAMAWA STATE

231.
PRESIDING OFFICER CHIKILA POLLING STATION GUYUK L.G.A. ADAMAWA STATE

232.
PRESIDING OFFICER PUNROKAYO POLLING STATION GUYUK L.G.A. ADAMAWA STATE

233.
PRESIDING OFFICER DUMA POLLING STATION GUYUK L.G.A. ADAMAWA STATE

234.
PRESIDING OFFICER BODENE POLLING STATION GUYUK ADAMAWA STATE

235.
PRESIDING OFFICER POLLING STATION PU 003 GARALE WARD HONG L.G.A. ADAMAWA STATE

236.
PRESIDING OFFICER POLLING STATION PU 005 GARALE WARD L.G.A. ADAMAWA STATE

237.
PRESIDING OFFICER POLLING STATION PU 012 GARALE WARD L.G.A. ADAMAWA STATE

238.
PRESIDING OFFICER POLLING STATION PU 08 HILDI WARD L.G.A. ADAMAWA STATE

239.
PRESIDING OFFICER POLLING STATION PU 0008 BANSHIKA L.G.A. ADAMAWA STATE

240.
PRESIDING OFFICER POLLING STATION PU 1

BANSHIKA L.G.A. ADAMAWA STATE

241.
PRESIDING OFFICER POLLING STATION PU 001 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

242.
PRESIDING OFFICER POLLING STATION PU 2

DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

14
.
5 September 2005

243.
PRESIDING OFFICER POLLING STATION PU 3 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

244.
PRESIDING OFFICER POLLING STATION PU 4 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

245.
PRESIDING OFFICER POLLING STATION PU 5 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

246.
PRESIDING OFFICER POLLING STATION PU 012 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE

247.
RETURNING/COLLATION OFFICER GARHA WARD HONG L.G.A. ADAMAWA STATE

248.
RETURNING/COLLATION OFFICER ADAMAWA WARD HONG L.G.A. ADAMAWA STATE

249.
RETURNING/COLLATION OFFICER HILDI WARD HONG L.G.A. ADAMAWA STATE

250.
PRESIDING OFFICER POLLING STATION UNIT 1 (009) GARHA WARD HONG L.G.A. ADAMAWA STATE (ABUBAKAR S. GARBA)

251.
ELECTORAL OFFICER HONG L.G.A. ADAMAWA STATE

252.
RETURNING OFFICER HONG L.G.A. ADAMAWA STATE

253.
RETURNING/COLLATION OFFICER MUBI SOUTH L.G.A. ADAMAWA STATE

254.
RETURNING/COLLATION OFFICER MUBI NORTH L.G.A. ADAMAWA STATE

255.
RETURNING OFFICER GANYE L.G.A. PRESIDING OFFICER POLLING STATION ADAMAWA STATE

256.
RETURNING OFFICER/COLLATION OFFICER GAMU WARD GANYE L.G.A. ADAMAWA STATE

257.
PRESIDING OFFICER BODENE POLLING STATION GUYUK ADAMAWA STATE

[2005] 13 .
Buhari v. Obasanjo
15

258.
RETURNING/COLLATION OFFICER KOGIN BABA 11 WARD TOUNG L.G.A. ADAMAWA STATE

259.
RETURNING/COLLATION OFFICER KOGIN BABA 1 WARD TOUNG L.G.A., ADAMAWA STATE

260.
RETURNING/COLLATION OFFICER KIRI II WARD TOUNG L.G.A., ADAMAWA STATE

261.
RETURNING/COLLATION OFFICER KIRI I WARD TOUNG L.G.A., ADAMAWA STATE

262.
RETURNING/COLLATION OFFICER GUMTI WARD TOUNG L.G.A., ADAMAWA STATE

263.
RETURNING/COLLATION OFFICER DAWO WARD 11 TOUNG L.G.A., ADAMAWA STATE

264.
RETURNING/COLLATION OFFICER DAWO I TOUNG L.G.A ADAMAWA STATE

265.
L.G.A RETURNING CODE 19 ADAMAWA CODE 02, ADAMAWA STATE

SUPREME COURT OF NIGERIA

SC. 3/2005

MUHAMMADU LAWAL UWAIS, C.J.N. (Presided and Read the Leading Judgment)

SALIHU MODIBBO ALFA BELGORE, J.S.C.

IDRIS LEGBO KUTIGI, J.S.C.

AKINTOLA OLUFEMI EJIWUNMI, J.S.C.

DENNIS ONYEJIFE EDOZIE, J.S.C.

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.S.C.

SUNDAY AKINOLA AKINTAN, J.S.C.

FRIDAY, 1ST JULY 2005

ACTION – Parties to an action – Parties to an election petition – Necessary respondent – Who is – Non-joinder of – Effect of – Section 133(2), Electoral Act, 2002.

ADMINISTRATIVE LAW – Bias – Meaning of – Allegation of bias – How proved.

16
.
5 September 2005

APPEAL – Admissibility – Inadmissible evidence – When admitted by trial court – Duty on appellate court with respect thereto.

APPEAL – Appeal from decision of Court of Appeal sitting as Presidential election tribunal – Appeal from decision of Court of Appeal as appellate court – Procedure in each case – Rules of court applicable thereto – Paragraph 51, First Schedule of the Electoral Act, 2002.

APPEAL – Appeal to the Supreme Court from decision of Court of Appeal – Time limit therefor – Section 27(2)(a) of the Supreme Court Act.

APPEAL – Arguments on appeal – Need to confine to merit of appeal.

APPEAL – Cross-appeal – Issues raised therein – Where already raised in main appeal – Attitude of court thereto – Whether will consider.

APPEAL – Decision nullifying return of candidate as person elected – Appeal against decision – Time limited therefor in section 138, Electoral Act, 2002 – Whether applicable to appeal against decision upholding election.

APPEAL – Decision of court – Where wrong – Duty on appellate court with respect thereto.

APPEAL – Findings of fact by trial court – Attitude of appellate court thereto – When will interfere therewith.

APPEAL – Findings of fact by trial court – Where not challenged on appeal – How treated.

APPEAL – Issues for determination – Issue not argued – How treated.

APPEAL – Preliminary objection – Where raised to an appeal – Appellant not conceding thereto – Proper step therefor.

APPEAL – Pronouncement of trial court – When not appealable.

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APPEAL – Wrongful admission of evidence at trial – Whether per se can lead to reversal of decision on appeal – When decision of trial court will be sustained – When will not – Section 227(1), Evidence Act considered.

CONSTITUTIONAL LAW – “Office” in section 318 of 1999 Constitution – Meaning of

CONSTITUTIONAL LAW – Judicial powers of court – Ambit of – When may extend to issue relating to Fundamental Objectives and Directive Principles of State Policy – Section 6(6)(b)(c), 1999 Constitution.

CONSTITUTIONAL LAW – Presidential election – Candidate therefor – Conditions for disqualification of- Section 137(1)(b) of the 1999 Constitution – Condition that Presidential candidate must not have been elected into such office in any two previous elections – Whether such “election” includes appointment as Head of Military Government under the Constitution (Basic Provisions) Decree No. 32 of 1975.

COURT – Court of Appeal – Jurisdiction to act as Presidential Election Tribunal – Exclusive nature of – Source of.

COURT – Issues before the court – Duty on court not to comment on issue not joined by parties – Duty to restrict itself to issues joined.

COURT – Judicial powers of court – Source and ambit of – When may extend to issue relating to Fundamental Objectives and Directive Principles of State Policy – Section 6(6)(b)(c), 1999 Constitution.

COURT – Pronouncement of court – When amounts to an obiter dictum.

COURT – Sentiment – Relevance of to judicial decision.

COURT- Supreme Court – Jurisdiction of with respect to Presidential election petitions – Where derived.

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COURT – Technicalities – Attitude of court thereto – Need for court to avoid.

CRIMINAL LAW AND PROCEDURE – Electoral offences – Undue influence – Nature of – Person accused of – How prosecuted – Whether can be prosecuted under election petition.

CRIMINAL LAW AND PROCEDURE – Proof of crime – “Proof beyond reasonable doubt” – Meaning of.

DOCUMENT – Documentary evidence – Subpoena to produce document – Where not complied with – Effect of – Procedure to follow – Whether prejudicial to case of defaulting party – What party serving subpoena should do.

DOCUMENT – Notice to produce document – Where issued and served on party to suit – Effect of – Whether party obliged to produce document – Where not complied with – Duty on party serving notice.

DOCUMENT – Notice to produce document – Where issued and served on party to suit – Effect of – Whether party obliged to produce document – Non-compliance by party served – Proper step for party serving notice.

ELECTION – Conduct of election – Bias of electoral officials – Allegation of – How proved.

ELECTION – Conduct of election – Election materials – Certification of – Rationale therefor – On whom duty therefor resides.

ELECTION – Conduct of election – Election materials – Certification of- Place therefor – Who can certify election materials – Section 67(3), Electoral Act, 2002.

ELECTION – Conduct of election – Independent National Electoral Commission – Power of to issue regulations, guidelines and manuals for conduct of election – Scope of – Whether can issue regulations inconsistent with Electoral Act – Section 149, Electoral Act, 2002.

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ELECTION – Conduct of election – Oath or affirmation required to he taken by electoral official – Failure to so take – When not fatal to election conducted by official – Section 18, Electoral Act, 2002.

ELECTION – Conduct of elections – Statutory power with respect thereto – Where resides.

ELECTION – Constitution (Basic Provisions) Decree, No. 32 of 1975 – Appointment as Head of Federal Military Government – Whether tantamount to election into Office of President.

ELECTION – Election result – Grounds on which may be questioned – Section 134(1), Electoral Act, 2002.

ELECTION – Electoral official – Resident Electoral Commissioner – Appointment of – Rules governing – Sections 17(2) and 19, Electoral Act, 2002.

ELECTION – Irregularities in an election – Where not attributable to a candidate – Whether can affect his election.

ELECTION – Polling agent – Appointment of – Principal place of duty – Section 36(1), Electoral Act, 2002.

ELECTION – “Polling agent” – Role of – Whether agent of political party.

ELECTION – Presidential election – Cancellation or nullification of – When permissible.

ELECTION – Presidential election – Candidate therein – When deemed to be duly elected – Section 134(1)(2), 1999 Constitution.

ELECTION – Presidential election – Election in a State of Federation – Nullification of- Effect of – Whether fatal to elections in other parts of the country.

ELECTION – “Shall certify the election materials from the office to the polling booths” in Section 67(3), Electoral Act, 2002 – Meaning of.

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ELECTION – Voting – Person intending to vote – Need for name of to be on voters’ register – Duty on to present voter’s card at polling station – Section 40, Electoral Act, 2002.

ELECTION PETITION – Bias and absence of neutrality on part of electoral commission – When will invalidate election – Relevant considerations for determination of.

ELECTION PETITION – Election petition – Nature of – Whether a civil action – How decided.

ELECTION PETITION – Election result – Challenge of – Evidence in support of – Who can adduce.

ELECTION PETITION – Election result – Grounds on which may be questioned – Section 134(1), Electoral Act, 2002.

ELECTION PETITION – Election result – Presumption of correctness of – Party challenging same – Burden of proof thereon – How discharged.

ELECTION PETITION – Electoral Act, 2002 – Section 138 thereof- Purport of – Time stipulated therein for appeal against decision nullifying return of candidate as person elected – Whether applicable to appeal against decision upholding return of candidate.

ELECTION PETITION – Electoral Forms – Election petition – Prescribed statutory form – What is – Who can change – Section 67(1) and (2), Electoral Act, 2002.

ELECTION PETITION – Electoral fraud – Allegation of bias against electoral officials – Onus of proof of – On whom lies – How discharged.

ELECTION PETITION – Electoral offences – Undue influence – Nature of- Person accused of – How prosecuted – Whether can be proceeded against under election petition.

ELECTION PETITION – Electoral offences – Undue influence – What constitutes – Punishment therefor – Section 129, Electoral Act, 2002.

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ELECTION PETITION – Entry of appearance in election petitions – Modes and forms of – Time limit for entry of appearance and filing reply by the respondent – Whether non-filing of memorandum of appearance precludes respondent from defending election petition – Paragraph 10(2) of the First Schedule to the Electoral Act, 2002.

ELECTION PETITION – Irregularities in an election – Where not attributable to a candidate – Whether can affect his election.

ELECTION PETITION – Non-compliance with Electoral law or corrupt practices – Allegation of – Determination of – What court will consider.

ELECTION PETITION – Non-compliance with provisions of Electoral Act, 2002 – Effect of – When will not invalidate election – Section 135(1), Electoral Act, 2002.

ELECTION PETITION – Non-compliance with provisions of Electoral Act, 2002 – Allegations of – Onus of proof of – Nature of – On whom lies – How discharged.

ELECTION PETITION – Parties to an election petition – Necessary respondent – How determined.

ELECTION PETITION – Parties to an election petition – Necessary respondent – Who is – Non-joinder of – Effect – Section 133(2), Electoral Act, 2002.

ELECTION PETITION – Presidential election petition court – Court of Appeal – Jurisdiction to act as – Source of.

ELECTION PETITION – Proceedings in an election petition – Time provided therefor – Extension and abridgement of – Paragraph 43(1), First Schedule of the Electoral Act, 2002 – Ambit of.

EVIDENCE – Admissibility – Inadmissible evidence – When admitted by trial court – Duty on appellate court with respect thereto.

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EVIDENCE – Judicial notice – Enormous cost of conducting presidential election – Whether court can take judicial notice of.

EVIDENCE – Notice to produce document – Where issued and served on party to suit – Effect of – Whether party served therewith obliged to produce document – Where he fails to do so – Proper procedure to follow.

EVIDENCE – Presumptions – Judicial and official acts – Presumption of regularity of – When can be raised – Section 150, Evidence Act.

EVIDENCE – Presumptions – Presumption of withholding evidence – When can be raised – When cannot – Section 149(d) Evidence Act.

EVIDENCE – Presumptions – Presumption of withholding evidence – Where party served with notice to produce evidence fails to produce same – Whether presumption of withholding evidence can be raised against him.

EVIDENCE – Proof – “Proof beyond reasonable doubt” – Meaning of.

EVIDENCE – Proof – Bias – Allegation of bias – How proved.

EVIDENCE – Proof – Burden of proof in civil cases – On whom lies – Shifting nature of – How discharged.

EVIDENCE – Proof – Election result – Presumption of correctness in favour thereof- Party challenging – Burden of proof thereon – How discharged.

EVIDENCE – Proof – Oral evidence – Need to be direct – Section 77, Evidence Act.

EVIDENCE – Proof – Pleadings – Bindingness of – Evidence led on fact not pleaded – How treated.

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EVIDENCE – Proof – Pleadings – Facts in pleadings of the adverse party – Whether other party entitled to lead evidence thereon.

EVIDENCE – Proof – Unchallenged evidence – How treated – Whether court will evaluate.

EVIDENCE – “Subpoena” – What amounts to.

EVIDENCE – Subpoena to produce document – Non-compliance therewith – Effect of – Whether prejudicial to case of defaulting party – What party serving subpoena should do.

EVIDENCE – Wrongful admission of evidence at trial – Whether per se can lead to reversal of decision on appeal – When decision of trial court will be sustained – When will not – Section 227(I), Evidence Act considered.

INTERPRETATION OF STATUTES – “Shall certify the election materials from the office to the polling booths” in Section 67(3), Electoral Act, 2002 – Meaning of.

INTERPRETATION OF STATUTES – Ambiguous words in a statute – Clear and unambiguous words in a statute – How construed.

INTERPRETATION OF STATUTES – Constitution (Basic Provisions) Decree, No. 32 of 1975 – Appointment as Head of Federal Military Government – Whether tantamount to election into Office of President.

INTERPRETATION OF STATUTES – Oaths Act, 1990 – Section 4(1) thereof – How construed.

INTERPRETATION OF STATUTES – Provisions of statute – Need to construe as a whole.

JUDGMENT AND ORDER – Decision of court – Where wrong – Duty on appellate court with respect thereto.

JUDGMENT AND ORDER – Obiter dictum – Pronouncement of court – When constitutes – Effect.

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JUDGMENT AND ORDER – Order of court – Presidential election – Cancellation or nullification of – When permissible.

JUDGMENT AND ORDER – Sentiments – Relevance of to judicial decision.

JURISDICTION – Court of Appeal – Jurisdiction to act as Presidential Election Petition Court – Exclusive nature of – Source of.

JURISDICTION – Supreme Court – Jurisdiction of with respect to Presidential election petitions – Where derived from.

JUSTICE – Justice – Aim of – Sentiment – Place of in adjudication.

LEGAL PRACTITIONER -Addresses of counsel – Whether constitute evidence.

NATURAL JUSTICE – Bias – Allegation of bias – How proved.

NOTABLE PRONOUNCEMENT – On attitude of the Supreme Court to dissenting judgment in Buhari v. Obasanjo (2005) 2 . (Pt.910) 241.

NOTABLE PRONOUNCEMENT – On class of persons who should not seek political elective offices in Nigeria.

NOTABLE PRONOUNCEMENT – On dangers of using ill-trained police officers for election security duties.

NOTABLE PRONOUNCEMENT – On daunting task for petitioner challenging election of person to the office of President of Nigeria.

NOTABLE PRONOUNCEMENT – On how to avoid violence and electoral malpractices in future elections in Nigeria.

NOTABLE PRONOUNCEMENT – On inelegant drafting of Electoral Act, 2002 and need for its amendment.

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NOTABLE PRONOUNCEMENT – On reason for electoral-related violence in Nigeria.

NOTABLE PRONOUNCEMENT – On validity of dissenting judgment in Buhari v. Obasanjo (2003) 2 . (Pt.910) 241.

NOTABLE PRONOUNCEMENT – On violence-ridden nature of 2003 Presidential Election.

OATHS – Oath or affirmation prescribed in Section 18 of Electoral Act, 2002 for electoral officials – Format thereof – Whether stated in Act.

OATHS – Oaths prescribed in Oaths Act – Officers to take – Whether include electoral officials – Sections 1 and 2, Oaths Act, 1990.

PRACTICE AND PROCEDURE – Addresses of counsel – Whether constitute evidence.

PRACTICE AND PROCEDURE – Admissibility – Inadmissible evidence – Where admitted by trial court – Duty on appellate court.

PRACTICE AND PROCEDURE – Appeal – Appeal from decision of election tribunal – Appeal from decision of Court of Appeal sitting as Presidential Election Petition Court – Procedure in each case – Rules of court applicable thereto – Paragraph 51, First Schedule of the Electoral Act, 2002.

PRACTICE AND PROCEDURE – Appeal – Appeal to the Supreme Court from decision of Court of Appeal – Time therefor-Section 27(2)(a) of the Supreme Court Act.

PRACTICE AND PROCEDURE – Appeal – Arguments on appeal – Need to confine to merit of appeal.

PRACTICE AND PROCEDURE – Appearance to civil suit – “Entry of appearance” in civil suits – Methods and forms of.

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PRACTICE AND PROCEDURE – Decision of court – Where wrong – Duty on appellate court with respect thereto.

PRACTICE AND PROCEDURE – Findings of fact by trial court – Attitude of appellate court thereto – When will interfere therewith.

PRACTICE AND PROCEDURE – Findings of fact by trial court. – Where not challenged on appeal – How treated.

PRACTICE AND PROCEDURE – Irregular procedure – Party acquiescing thereto – Whether can complain thereafter.

PRACTICE AND PROCEDURE – Issues before the court – Duty on to confine itself to issues reused by parties – Duty on court not to comment on issue not joined by parties.

PRACTICE AND PROCEDURE – Issues for determination – Issue not argued – How treated.

PRACTICE AND PROCEDURE – Multiplicity of actions – Issue resolved in appeal – Where raised in cross appeal – Attitude of appeal court thereto – Whether will consider.

PRACTICE AND PROCEDURE – Notice to produce document – Where issued and served on party to suit – Effect of – Whether party obliged to produce document – Non-compliance by party served – Proper step for party serving notice.

PRACTICE AND PROCEDURE – Pleadings – Admission in pleadings – How ascertained – Duty on court to consider entire pleading.

PRACTICE AND PROCEDURE – Pleadings – Bindingness of – Evidence led on fact not pleaded – How treated.

PRACTICE AND PROCEDURE – Pleadings – Contents of- Matters which must be specifically pleaded – Order 26 rules 5 and 6(1), Federal High Court (Civil Procedure) Rules, 2000.

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PRACTICE AND PROCEDURE – Pleadings – Denial of plaintiff’s averments – Effect of.

PRACTICE AND PROCEDURE – Pleadings – Facts in pleadings of the adverse party – Whether other party entitled to lead evidence thereon.

PRACTICE AND PROCEDURE – Pleadings – Purpose of.

PRACTICE AND PROCEDURE – Preliminary objection – Where raised to an appeal – Appellant not conceding thereto – Proper step therefor.

PRACTICE AND PROCEDURE – Pronouncement of court – When an obiter dictum.

PRACTICE AND PROCEDURE – Proof – Burden of proof in civil cases – On whom lies – Shifting nature of – How discharged.

PRACTICE AND PROCEDURE – Proof – Oral evidence – Need for to be direct – Section 77, Evidence Act.

PRACTICE AND PROCEDURE – Subpoena – Subpoena to produce document – Non-compliance therewith – Effect of – Whether prejudicial to case of defaulting party – What party serving subpoena should do.

PRACTICE AND PROCEDURE – Technicalities – Attitude of court thereto – Need for court and counsel to avoid.

PRACTICE AND PROCEDURE – Unchallenged evidence – How treated – Whether court will evaluate.

PRACTICE AND PROCEDURE – Wrongful admission of evidence at trial – Whether per se can lead to reversal of decision on appeal – When decision of trial court will be sustained – When will not – Section 227(1), Evidence Act considered.

PRINCIPLES OF INTERPRETATION – Interpretation of statutes – Ambiguous words in a statute – How construed.

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PRINCIPLES OF INTERPRETATION – Interpretation of statutes – Clear and unambiguous words in a statute – How construed.

PRINCIPLES OF INTERPRETATION – Provisions of a statute – Need to construe as a whole.

STATUTE – “Substantially in accordance with the principles of the Act” in Section 135(I), Electoral Act, 2002 – Import of.

STATUTE – Electoral Act, 2002 – Section 134(l)(b) thereof – Purport of.

STATUTE – Electoral Act, 2002 – Section 138 thereof – Purport of – Time stipulated therein for appeal against decision nullifying return of candidate as person elected – Whether applicable to appeal against decision upholding return of candidate.

STATUTE – Electoral Act, 2002 – Section thereof – Oath or affirmation prescribed therein for electoral officials – Format thereof – Whether stated in Act.

STATUTE – Interpretation of statutes – Ambiguous words – Clear and unambiguous words in a statute – How construed.

STATUTE – Oaths Act, 1990 – Section 4(1) thereof- How construed.

STATUTE – Provisions of statute – Need to construe as a whole.

WORDS AND PHRASES – Bias – Meaning of – How proved.

WORDS AND PHRASES – “Office” – Meaning of – Whether election ward collection or distribution centre qualifies as.

WORDS AND PHRASES – “Office” in section 318 of 1999 Constitution – Meaning of.

WORDS AND PHRASES – “Polling agent” – Role of- Whether agent of political party.

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WORDS AND PHRASES – “President” under 1999 Constitution and “Head of Federal Military Government” under the Constitution (Basic Provisions) Decree No. 32 of 1975 – Distinction between.

WORDS AND PHRASES – “Proof beyond reasonable doubt” – Meaning of.

WORDS AND PHRASES – “Several” – Meaning of

WORDS AND PHRASES – “Shall certify the election materials from the office to the polling booths” in Section 67(3), Electoral Act, 2002 – Meaning of.

WORDS AND PHRASES – “Subpoena” – Meaning of.

WORDS AND PHRASES – “Substantially in accordance with the principles of the Act” in Section 135(1), Electoral Act, 2002 – Import of.

Issues:

1.
Whether the Court of Appeal properly interpreted sections 135(1) and 67(3) of the Electoral Act, 2002

2.
Whether the Court of Appeal properly interpreted and applied the presumption of regularity under section 150(1) of the Evidence Act in the judgment.

3.
Whether the failure of the Court of Appeal to nullify the Presidential election of 19th April, 2003 after holding the 3rd respondent damnable and lacking in neutrality and impartiality for failing to produce election results was proper in law.

4.
Whether the Court of Appeal’s conclusion that non- compliance with section 67(3) of the Electoral Act was not proved is sustainable considering the express provision of the section, the pleadings of the parties and the totality of evidence on record on the point.

5.
Whether the Court of Appeal’s failure to invalidate the Presidential election after holding that section 18 of the Electoral Act was not complied with was proper.

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6.
Whether the Court of Appeal’s failure to invalidate the Presidential election after finding that section 40(1) of the Electoral Act, 2002 was breached in the conduct of the election was proper.

7.
Whether the Court of Appeal was not in error by failing to invalidate the Presidential election considering the specific and uncontroverted evidence of bias or likelihood of it in the INEC, and Resident Electoral Commissioners in twelve States of the Federation.

8.
Whether the failure of the Court of Appeal to apply section 149(d) of the Evidence Act against the 3rd respondent for failing to produce the letter of protest in Cross-River State for which notice to produce was given was proper in law.

9.
Whether the non-application by the Court of Appeal of the provision of section 129 of Electoral Act, 2002 against the 1st and 2nd respondents was proper considering the pleadings, evidence on record and the findings of the Court on intimidation and violence.

10.
Whether the exclusion in the majority judgment of the properly admitted evidence of malpractices proffered in several Local Government Areas on the ground that such Local Government Areas were not specifically pleaded was proper in law.

11.
Whether, on the balance of probability, the Presidential election should not have been invalidated.

12.
Whether there was no evidence proffered on Imo State that can substantially affect the election.

13.
Whether the Court of Appeal was not in error by discountenancing a substantial volume of evidence in some States on the ground of a perceived non-joinder of necessary parties.

14.
Whether, on the balance of probability, the election in each of Adamawa, Kaduna, Enugu, Kogi, Taraba, Ebonyi, Benue, Cross River, Edo, Rivers, Balyelsa, and Imo States should not have been severally invalidated.

15.
Whether the Court of Appeal was not in error by upholding the Presidential election of 19/4/03 after invalidating the election of one State (Ogun) considering

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the provision of section 134(1) of the Constitution of the Federal Republic of Nigeria.

16.
Whether the 1st and 2nd respondents’ reply is a competent process in the proceeding.

17.
Whether the 1st respondent was qualified to contest the Presidential election under the Constitution of the Federal Republic of Nigeria.

18.
Whether the Court of Appeal did not misdirect itself on the number of States of the Federation upon which the petitioner proffered evidence and, if it did, whether the misdirection did not occasion a miscarriage of justice.

19.
Whether the Court of Appeal was right in nullifying the Presidential election results in Ogun State having regard to the evidence adduced by the parties before the court.

Facts:

On 19th April, 2003 an election to the offices of the President and Vice President of the Federal Republic of Nigeria was conducted nation-wide by the 3rd respondent.

The 1st appellant and another person, now deceased, contested as the candidates of All Nigeria Peoples Party (ANPP), the 2nd appellant, while the 1st and 2nd respondents contested as the candidates of Peoples Democratic Party (PDP).

At the end of the election, the 1st and 2nd respondents were returned as the candidates duly elected as President and Vice President respectively.

The 1st and 2nd appellants were aggrieved with the return of the 1st and 2nd respondents and they filed a petition at the Court of Appeal in its jurisdictioin as the Presidential Election Tribunal. They sought the following reliefs:

“(a) An order of the court that the election is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2002.

(b)
An order of the court that the election is invalid for reasons of corrupt practices.

(c)
An order of the court that the time of the election the 1st respondent was not qualified to contest.

In alternative:

That the 1st respondent was not validly elected by a majority of lawful votes cast in the election and did not

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receive 25% of the votes cast in two-thirds of the States of the Federation and the Federal Capital Territory, Abuja as required by the 1999 Constitution of the Federal Republic of Nigeria.”

The appellants made allegations in their petition against the 1st, 2nd and 3rd respondents and the 3rd respondent’s officials.

The appellants averred that the 1st respondent was not qualified to contest the election because he had been elected to the office of Head of State of Nigeria on two previous occasions, namely as Head of Federal Military Government of Nigeria in 1976, and as President of Nigeria in 1999; that members of PDP, the 1st and 2nd respondents’ political party, were appointed as the 3rd respondent’s Resident Electoral Commissioners and Electoral Officials and this led to bias and lack of neutrality of the 3rd respondent in favour of the 1st and 2nd respondents during the election. The appellants also averred that there was non-compliance with the Electoral Act, 2002, by the 3rd respondent and its officials in the conduct of the elections; specifically, the appellants averred that the 3rd respondent did not subject its officials who participated in the conduct of the election to oath of affirmation to conduct the election in the interest of the country as statutorily mandated by the Electoral Act, 2002; that the 3rd respondent and its officials did not permit the appellants’ polling agents to certify the election materials at the 3rd respondent’s offices before the materials were distributed to the polling booths. The appellants further specifically averred that the 3rd respondent made a regulation in its manual on the conduct of the election permitting persons without voter’s card but whose names were in the voters’ register to vote.

The appellants also averred that in addition to the conduct and acts of the 3rd respondent which vitiated the election, the election was marred by wide spread acts of violence and intimidation against the appellants’ supporters by armed military and police officers and armed PDP members and thugs, which led to injury and death of the appellants’ supporters at various named parts of the country and that such acts took place in other unnamed parts of the country.

The appellants further averred that the election was marred in 14 States of the Federation by pre-voting time finger-printing of ballot papers, snatching of election materials by thugs of PDP for stuffing outside polling stations and diversion of election materials

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to the private homes of citizens and government officials who are PDP members.

The appellants further averred that the election was marred in Cross River State by a misleading radio announcement by the State Government that the 2nd appellant’s gubernatorial candidate in the State had withdrawn from the gubernatorial election, which was held on the same day the presidential election was held; and that a letter was written to the 3rd respondent who was served with a notice to produce the letter at the hearing of the petition.

The appellants averred that the scores ascribed to each of the candidates at the election were fictitious and the product of deliberate wrong entries into the result sheets by the 3rd respondent’s officials at polling booths, wards and local government areas where elections were held and in polling units, wards and local government areas where elections were not held as a result of the violence or acts of intimidation by PDP thugs acting together with armed military and police officers. Consequently, the appellants served a notice on the 3rd respondent to produce the declared result of the election at the hearing of the petition.

Subsequent to the filing of the petition, the 1st and 2nd respondents’ counsel appeared in court on 23/5/2003 for the hearing of a motion for interlocutory injunction against the 1st and 2nd respondents and accepted service of the petition on behalf of the 1st and 2nd respondents. A memorandum of appearance was filed on behalf of the 1st and 2nd respondents on 30/5/2003 and a reply was filed on 13/6/2003. The 3rd to 268th respondents generally denied the averments of the appellants. In the alternative, they contended that the complaints of the appellants in respect of the election were not substantial enough to invalidate the election.

The 1st and 2nd respondents denied that the election materials were not certified as averred by the appellants’ allegation of electoral malpractices and violence. In their reply in respect of Adamawa State was made in the name of Adamawa State PDP, which was not a party to the petition. The 3rd to 268th respondents, on their part, averred that the electoral officials who took part in the conduct of the election were subjected to and took an affirmation to conduct the election in the interest of the country, that arrangement was made for the certification of the election materials and that they could not be held responsible for the failure of any polling agent to avail himself or herself of the opportunity for certification of election materials.

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At the hearing of the petition, the parties called witnesses and tendered documents in evidence. These included the 3rd respondent’s manual on the conduct of the election which was admitted in evidence as exhibit “O”. It showed that the 3rd respondent authorised its officers to permit any person whose name was on the voters’ register to cast his vote without presenting a voter’s card. The 3rd respondents however refused to produce the result of the election at the hearing of the petition notwithstanding the subpoena to produce the document served on it. The respondents also refused to produce the letter of protest written in respect of the announcement made by the Cross River State Government.

The appellants’ witnesses testified that the 3rd respondent did not administer the statutorily required oath or affirmation on its officials and that election materials were not certified by polling agents. Over sixty witnesses testified that there was non-certification of electoral materials but only few of them were polling agents; the rest were supervisory agents.

The appellants’ witnesses testified that some of the 3rd respondent’s Resident Electoral Commissioners and Electoral Officials who took part in the conduct of the election were PDP members. The appellants’ witnesses tendered document which showed that one of the Resident Electoral Commissioners contested election on the platform of PDP in 1999. The witnesses however, did not adduce any direct evidence of bias by the Resident Electoral Commissioners and Electoral Officials who were identified as PDP members. The witnesses also testified about the acts of violence and intimidation by PDP members against the appellants’ supporters but the evidence adduced did not directly link the 1st and 2nd respondents to the acts of violence and intimidation. The 2nd petitioners gubernatorial candidate for Ogun State during the election, testified as PW1 and said that the result of the election in Ogun State was massively manipulated in favour of the 1st and 2nd respondents and substantially reduced for the 1st appellant. PW1 testified that the State had 3,210 polling units and that the appellants’ polling agents at 142 polling units brought result sheets to him and that the total score of the 1st appellant at thel42 units was 1,547 votes; but the 3rd respondent ascribed 680 votes to the 1st appellant as the overall votes scored by the 1st appellant in Ogun State. PW1 further adduced arithmetical figures relating to the votes ascribed to

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the 1st and 2nd appellants and the PDP gubernatorial candidates to buttress his assertion that the election in Ogun State was fatally flawed and manipulated in favour of the 1st and 2nd respondents.

The respondents on the other hand, called witnesses who testified that the scores ascribed to the 1st appellant in Ogun State are correct. The witnesses denied that election materials were diverted and that election did not take place as testified by the appellants’ witnesses. The respondents witnesses however testified that the election were not certified and that the statutorily required oath or affirmation was not administered on the 3rd respondent’s electoral officials.

In the address of counsel, it was contended on behalf of the appellants inter cilia that the provision in exhibit O, which allowed persons without voter’s cards but whose names are on the voters’ register to cast their votes is inconsistent with the Electoral Act, 2002, and therefore void. The appellants’ counsel also urged the court to strike out the paragraphs of the 1st and 2nd respondents reply, which was averred by Adamawa State PDP. On the other hand, it was contended inter alia by counsel to the 1st and 2nd respondents that the issue of the 1st respondents eligibility to contest the election has been decided by the Supreme Court in Ojukwu v. Obasanjo (2004) 12 . (Pt. 886) 169 and that the election was in substantial compliance with Electoral Act, 2002.

In its judgment, the Court of Appeal found that voters cast their votes without voting cards contrary to the provisions of the Electoral Act, 2002. Consequently, it held that the provisions of exhibit “O”, which allowed them to do so was ultra vires the power vested on the 3rd respondent by the Electoral Act, 2002 and void because of its inconsistency with the Act.

The court held that while evidence of acts of violence and intimidation were admissible generally, because the appellants averred that such evidence would be adduced, evidence of electoral malpractices were inadmissible unless related facts were pleaded. It found from evidence adduced that there were acts of electoral malpractices, violence and intimidation as averred by the appellants but held that the non-joinder of the 3rd respondent’s electoral malpractices, and the military and police officers who perpetrated the acts of violence and intimidation was fatal to the paragraphs of the petition in which the allegations was made, and to the appellants’ case.

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The court also held that the evidence of non certification of election materials adduced by the appellants was at variance with their pleadings because they averred that polling agents were not allowed to certify the materials while most of their witnesses testified of being barred from certification of the materials by supervisory officers. The court also held that the certification of election materials is the duty of polling agents and ought to have been done at the ward collection or distributions centres, and not at the State or Local Government Area Offices where the appellants’ supervisory agents went for certification of the election materials. The court further held that the 3rd respondent’s electoral officers are public officers and that their failure to take the oath or make the affirmation prescribed in the Electoral Act, 2002, was non fatal to the conduct of the election by virtue of the provisions of the Oaths Act. The court, apparently dissatisfied with the 3rd respondent’s non compliance with the suppoena served on the 3rd respondent, held that the 3rd respondent was biased in favour of the 1st and 2nd respondent.

As regards the election in 22 States of the Federation in respect of which the appellants did not complain of in their petition, the Court of Appeal held that the election would be presumed to be properly conducted and that the results from such States would be presumed to be correct irrespective of the evidence adduced.

The Court of Appeal held ultimately that the branches of the Electoral Act, 2002 averred and proved by the appellants did not ipso facto invalidate the election; and that the evidence adduced was not sufficient to enable it decide that the entire election was not held in substantial compliance with the Electoral Act, 2002. Consequently by a majority decision, it dismissed the petition. It, however, unanimously held that the election in Ogun State was fatally flawed having regard to the evidence of PW1. Consequently, it nullified the election in Ogun State.

The appellants were dissatisfied with the majority judgment of the Court of Appeal and they appealed to the Supreme Court. The 1st and 2nd respondents and the 4th and 5th respondents were also dissatisfied with some parts of the majority judgment and the minority judgment of the Court of Appeal especially the nullification of the election in Ogun State and they cross-appealed to the Supreme Court.

The appellants, on their part, filed a preliminary objection to the competence of the 4th and 5th respondents’ cross appeal on the

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ground that though filed within 3 months of the date of the judgment of the Court of Appeal, it was filed outside of 21 days permitted by the Electoral Act, 2002, for appeals against the decisions of an election tribunal.

It was contended on behalf of the appellants that the entire election ought to have been nullified having regard to the finding by the Court of Appeal that provisions of the Electoral Act was not complied with in the conduct of the election and the bias conduct of the 3rd respondent based on its refusal to comply with the subpoena to produce the election results at the hearing of the petition. It was also contended for the appellants that the Court of Appeal should have nullified the election because the nullification of the election in Ogun State meant the election was not conclusive for the purpose of determining its winner on the basis of the 36 States of the Federation as required by the 1999 Constitution. It was further contended for the appellants that the 1st respondent was not qualified to contest the election; that the striking out of some paragraphs of the 1st and 2nd respondents reply meant that related averments in the petition were not denied and that the 1st and 2nd respondents’ reply was invalid because it was filed outside the time allowed by the Electoral Act, 2002, for filing a reply.

On the other hand, it was contended for the respondents that the appellants did not prove that the non compliance with the Electoral Act, 2002 substantially affected the results of the election and that the evidence of PW1, which the Court of Appeal relied on to nullify the election in Ogun State, was hearsay evidence, which was inadmissible.

In determining the appeal and the cross-appeals, the Supreme Court construed, amongst others, the following provisions of the 1999 Constitution; the Electoral Act, 2002; the Oaths Act and the Evidence Act; that is:

Sections 134(1)(2) and 137(1) of the 1999 Constitution which state as follows:

“134(1) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being only two candidates for the election:

(a)
he has the majority of votes cast at the election, and

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(b)
he has 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 and the Federal Capital Territory, Abuja.

(2)
A candidate for an election to the office of president shall be deemed to have been elected where, there being more than two candidates for the election –

(a)
he has the highest number of votes cast at the election; and

(b)
he has 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 and the Federal Capital Territory, Abuja.”

“137(1) A person shall not be qualified for election to the office of President if –

(a)
subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(b)
he has been elected to such office at any two previous elections; or

(c)
under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or

(d)
he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or

(e)
within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty

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                                of the contravention of the Code of Conduct; or

(f)
he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or

(g)
being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or

(h)
he is a member of any secret society; or

(i)
he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively; or

(j)
he has presented a forged certificate to the Independent National Electoral Commission.”

Electoral Act, 2002, Sections 17(2), 18,19. 36,63,129,134(1), 135(1), 138, 149 and paragraphs 9(1), 10(2) 12(1), 51 of the first schedule:

“17(2) No person who is a member of a political party or who has openly expressed support for any candidate shall be appointed into any position for the purposes of registration of voters or election under this Act.”

“18.
All Electoral Officers, Presiding Officers and Returning Officers shall affirm or swear to Oath of Loyalty and Neutrality indicating they would not accept bribe or gratification from any person, and shall perform their functions and duties impartially and in the interest of the Federal Republic of Nigeria without fear or favour.” “19 The Commission shall for the purpose of an election under this Act, appoint such other officers as may be required provided that they shall not be registered members of any political party.”

“36(1) All political parties may be notice in writing signed and addressed to the Electoral Officer of the Local

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Government Area appoint persons (in this Act referred to as “Polling Agents”) to attend at each polling station in the Local Government Area for which they have candidate(s), and the notice shall set out the names and addresses of the polling agents and be given to the Electoral Officer before the date fixed for the election.

(2)
Notwithstanding the requirement of subsection (1) of this section, a candidate shall not be precluded from doing any act or thing which he has appointed a polling agent to do on his behalf under this act.

(3)
Where in this Act, an act or tiling is required or authorized to be done by or in the presence of a polling agent, the non-attendance of the polling agent at the time and place appointed for the act or thing or refusal by the polling agent to do the act or thing shall not, if the act or tiling is otherwise done properly, invalidate the act or thing.”

“63. The Chief National Electoral Commissioner or any officer authorised by him shall keep official custody of all the documents, including statement of results and ballot papers relating to the election, which are returned to the Commission by the Returning Officers.”

“129. A person who –

(a)

directly or indirectly, by himself or by another person on his behalf, makes use of or threatens to make use of any force, violence or restrain;

(b)

inflicts or threatens to inflict by himself or by any other person, any temporal or spiritual injury, damage, harm or loss on or against a person in order to induce or compel that person to vote or refrain from voting, or on account of such person having voted or refrained from voting; or

(c)

by abduction, duress, or a fraudulent device or contrivance, impedes or prevents the free use of the vote by a voter or thereby compels, induces, or prevails on a voter to give or refrain from giving his vote,

(d)

by preventing any political aspirants from free use of the media, designated vehicles, mobilization of political support and campaign at an election,

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commits the offence of undue influence and is liable on conviction to a fine of N100,000.00 or imprisonment for twelve months, and shall in addition be guilty of corrupt practice under section 132 of this Act and the incumbent be disqualified as a candidate in the election”

“134(l)An election may be questioned on any of the following grounds, that is to say –

(a)
that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b)
that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)
that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)
that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

“135(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non- compliance did not affect substantially the result of the election.”

“138(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.”

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“149. The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for the due administration thereof.”

Paragraphs 9(1), 10(2), 12(l)and51 of First Schedule of the Electoral Act, 2002 –

“9(1) Where the respondent intends to oppose the election petition, he shall-within such time after being served or deemed to be served with the election petition; or where the Secretary has stated a time under sub-paragraph (2) of paragraph 7 of this Schedule, within such time as is stated by the Secretary, enter an appearance by filing in the Registry a memorandum of appearance stating that he intends to oppose the election petition and giving the name and address of the Solicitor, if any, representing him or stating that he acts for himself, as the case may be, and, in either case, giving an address for service at which documents intended for him may be left or served.”

“10(2) The non-filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than twenty-one (21) days from the receipt of the election petition.”

“12(1) The respondent shall, within fourteen (1) days of entering an appearance file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.”

“51. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court as the case may be regard being had to the need for urgency on electoral matters.”

                Oaths Act, Cap. 333 Laws of the Federation of Nigeria, 1990, sections 1, 2 and 4(1) which state thus:

” 1. The oaths to be taken as occasion shall demand shall be the oaths set out in the First Schedule to this Act.”

“2. A person appointed to the office set out in the second

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column of the Second Schedule to this Act shall take the oath specified in the first column of the said Schedule which shall be administered by the authority specified in the third column of the said Schedule.”

“4(1) Nothing in this Act shall render, or be deemed to render or be deemed to have rendered invalid any act done or which hereafter may be done by a public officer in the execution or intended execution of his official duties, by reason only of the omission by the public officer to take any oath or to take any affirmation which the officer should take or should have taken or should make or should have made. Provided that any person who declines, neglects, or omits to take the required oath or make the required affirmation under the Act shall:

(a)
if he has already entered on his office, be deemed to have vacated that office from the date of refusal; and

(b)
If he has not already entered on his office, be disqualified from entering on the same.”

Held (Unanimously dismissing the appeal and allowing the cross-appeals):

1.
On What court considers in determining allegation of corrupt practices or non compliance with electoral law –

Where an allegation is made that an election was invalid by reason of corrupt practices or non compliance with the provision of the Electoral Act, 2002, the provision of the Act the court will resort to in resolving the complaint is section 135(1) of the Act. (P. 231, paras. F-G)

2.
On Purpose of section 135(1) of the Electoral Act, 2002 –

The main objective of section 135(1) of the Electoral Act is to ensure that not every minor non compliance, or minor breach of the provisions of the Act should vitiate an election. In other words, the purpose of the inclusion of the provision in the Act is to prevent an election from being invalidated on mere failure

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to comply with minor provisions of the Act, which have no effect or do not substantially affect the outcome of the election. The section therefore vests an election tribunal or a court entertaining an election petition with the power to decide from the evidence tendered before it in each case whether an alleged non compliance is substantial enough to warrant nullification of an election. (Pp. 306, para. H; 308, paras. E-F; 311, paras. A-B)

Per PATS-ACHOLONU, J.S.C at page 288, paras. H-B:

“It must be made abundantly clear that the intendment of some of the saving provisions in this rather inelegantly drafted Act, with its sometimes obtuse and equivocal language is to try to save any election as most reasonable as possible. In effect, some latitude of non abidance is anticipated, that is if in the opinion of the officers concerned, the noncompliance does not destroy the fundamental tenets ingrained in the Act, then such irregularities could conveniently be over looked.”

Per AKINTAN, J.S.C at page 308, paras. E-F:

“As I have stated earlier above, the purpose of the inclusion of section 135(1) in the Act is to prevent an election from being invalidated on mere failure to comply with minor provisions of the Electoral Act which have no effect or substantially affect the out-come of the election.”

3.
On Import of the phrase “substantially in accordance with the principles of the Act” in section 135(1) of the Electoral Act, 2002 –

Per PAT-ACHOLONU, J.S.C. at page 280-281, paras. F-A:

“In respect of section 135(1): what really is the import of the expression “substantially in accordance with the principles of the Act?” In order not to arrive at a construction that may be pejorative of the expression or which might

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do violence to what it denotes having regard to the context in which that phrase appears in the statute, a holistic approach to the interpretation is important. Indeed a careful and methodical analysis and scrutiny of the expression in reference to acts whether by way of omission or commission in the course of election connotes practices which when viewed objectively having regard to the provision, are in consonance in great detail in application and performance with, and appear to satisfy the requirements of the dictates of the statute to show proper accommodation of the tenor and intendments of the provision. That is to say, that too much should not be made of certain seeming violations or irregularities that do not fundamentally and materially affect due effectiveness and actualization of the spirit of the Act. There is no doubt that this provision is inelegantly drafted but the court must make a meaning out of it to give it sense, proper understanding and relevance. It seems to me that the construction given to that section by the lower Court accords with rationality.”

4.
On Onus of proof of allegation of non-compliance with electoral law –

Where an allegation of non compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the substantial non-compliance, and, secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected. In the instant case, the evidence adduced by the appellants at the Court of Appeal was not sufficient to enable the court to hold that the election was not held substantially in accordance with the Electoral Act. In the circumstance, the Court of Appeal was right

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when it held so despite the nullification of the election in Ogun State. [Awolowo v. Shagari (1979) 6-9 SC 51; 120; Akinfosile v. Ijose (1960) SCNLR 447; Ibrahim v. Shagari (1983) 2 SCNLR 176 referred to and followed Swem v. Dzungwe 1966 1 SCNLR 111 referred to and explained.] (Pp. 222, paras. A-C; 182, paras. D-E)

5.
On Effect of non compliance with provisions of Electoral Act, 2002 –

By virtue of section 135(1) of the Electoral Act, 2002, an election shall not be invalidated by reason of non compliance with the provisions of the Act if it appears that the election was conducted substantially in accordance with the principles of the Act and that non compliance did not affect substantially the result of the election. In the instant case, the Court of Appeal rightly interpreted the provision of section 135(1) of the Electoral Act, 2002, when it held that breaches of the provisions of the Act did not ipso facto invalidate the election. [Awolowo v. Shagari (1979) All NLR 120; Akinfosile v. Ijose (1960) SCNLR 447; Ibrahim v. Shagari (1983) 2 SCNLR 176 referred to and followed Swen v. Dzungwe 1966 NMLR 297 referred to and explained.] (Pp. 117-118, paras. H-A; 191, para. C; 259-260, paras. G, H-C)

Per UWAIS, C.J.N. at pages 181-182, paras. A-B:

  "In summary the non-compliance with the provisions of the Electoral Act, 2002, which I found in the foregoing, are as follows:

1.
That by Section 17(2) of the Electoral Act, 2002 no person who is a member of a political party or who openly expresses support for any candidate shall be appointed into any office for the purposes of election. There is evidence that some of the Resident Electoral Officers were members of the PDF including the Resident Electoral Commissioner for Gombe State. But there was no evidence as to what acts of bias they performed.

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2.
That there was non-compliance with section 18 of the Electoral Act, 2002 which directs that all the Electoral Officers, Presiding Officers and Returning Officers shall affirm or swear an Oath of Loyalty and neutrality. However, neither the Electoral Act nor the Oaths Act prescribes the Oath of Loyalty and neutrality. So that it is not known exactly what this Oath is. If the form of the oath is not known, the question is could it have been taken? Would the failure to take an unknown oath have any effect? I do not think so.

3.
That section 19 of the Electoral Act, 2002 directs the 3rd respondent/respondent not to appoint other officers than Electoral Officers, Presiding Officers and Returning Officers who are registered members of any political party as election officers. However, no evidence of the violation of the provisions of the section was adduced as such by the petitioners or accepted by the Court of Appeal. This too has no effect on the election.

4.
That section 40(1) of the Electoral Act, which provides that persons intending to vote should produce their voter’s card at the Polling station to enable the Presiding Officer issue ballot Papers cards to them. This provision was not complied with, when on the authority of Exhibit 0, voting was allowed on production of registration cards instead, except that there was no evidence as to how many voters so voted in the election. It was not possible, therefore, to quantify how such votes affected the result of the election.

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5.
That by section 67(3) of the Electoral Act, election materials should be certified by polling agents. Only 2 ANPP polling agents testified that the certification did not take place. Considering the number of polling agents all over the country in polling units, Wards, Local Government Areas and the States, such evidence was too scanty to prove that there was no certification of the documents throughout the country.”

Per BELGORE, J.S.C. at pages 191-192, paras. A-C:

   "It is manifest that an election by virtue of S. 135(1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures i.e. votes, that the compliance attracted or omitted. The elementary evidential burden of 'the person asserting must prove' has not been derogated from by S. 135(1). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify nullification (Awolowo v. Shagari (1979) 6-9 SC 51; Akinfosile v. Ijose (1960) SCNLR 447 The appellants' reliance on the English case (Court of Appeal of England), Morgan v. Simpson ((1975) Q.B. 151 merely emphasises that once it is clearly proved that the election was so badly conducted and substantially not in accordance with the law as to election that election would be vitiated. In that case two out of nineteen polling stations were closed on the day of the election and five thousand voters were unable to vote, but this

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is not all, it affected other stations that were open when people heard that all stations were actually closed, even though from rumours. Such substantial non-compliance rightly affected the result of the election. At any rate, Denning M. R.’s proposition is far from the case in Nigeria (See Bello, JSC, as he then was, in Awolowo v. Shagari). This court in 1984 considered this state of the law in the case of Ojukwu v. Onwudiwe (1984) 1 SCNLR 247, 305 – 306

‘In Sorunke v. Odebunmi 5 FSC; (1960) SCNLR 414, Federal Supreme Court considered when an election could be invalidated for non-compliance with the provisions of the regulations governing the election…’

‘In the present case the fact that the election as conducted in 86 of the 138 polling booths of the constituency in question was not found wanting, prima facie shows that there was substantial compliance with the provisions of Part 11 of Electoral Act in the majority of the polling booths where the election took place in the constituency. The burden was therefore on the appellant to show that the non-compliance where applied to 52 polling booths, as found by the learned trial Judge actually vitiated the election in the constituency as a whole. That he failed to do.’

The onus has not by any means shifted from the time honoured law on evidence that the person who asserts a situation must prove. The burden on petitioners to prove that non-compliance has not only taken place but has also substantially affected the result fulfilled. There must be clear evidence of non-compliance, then that that non-compliance has substantially affected the election. Failure to affirm or take oath of allegiance

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has not in any way diminished the fact that the election was valid.”

Per AKINTAN, J.S.C. pages 310-311, paras. D-C:

  "The complaint of the appellants is that some people who did not produce their voter's cards were allowed to vote and that even though Tabai, JCA found as a fact and held that there was no evidence of the number of such votes cast by people without voter's cards and the units in which such votes were cast, the learned Justice still came to the conclusion that in the absence of such evidence the effect of such votes on the election could not be ascertained.

The court below is therefore being accused of failure to nullify the election in the whole country on the allegation that an unspecified number of people voted without presenting their voter’s cards. I believe that the court below was right in not yielding to the appellants’ request. Yielding to such a request would have amounted to act of gross irresponsibility and perverted the course of justice. The same is the position in all the allegations of breaches of similar provisions of the Act made by the appellants in this appeal. They are all instances where they failed to prove that the alleged breaches had any substantial effect on the outcome of the entire election. These are in the appellants’ issues 5, 6, 7, 10 and 11. In the absence of any credible evidence led to show that any of the alleged breach of the provisions of the Act substantially affected the out-come of the election, no court could grant a request for nullification. The appellants totally failed to realise that the aim of the provisions of section 135(1) of the Act is to save an election from being nullified on frivolous grounds premised on allegations of minor breaches of the provisions of the Act. The issues raised in the appeal are mainly querying instances of alleged breaches of the provisions of the Act They failed to prove the

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effect of such breaches on the outcome of the election. They are therefore bound to fail.”

6.
On Grounds on which election may be questioned –

By virtue of section 134(1) of the Electoral Act, 2002, an election may be questioned on any of the following grounds, that is to say –

(a)
that a person whose election is questioned was, at the time of the election, not qualified to contest the election; or

(b)
that the election was invalid by reason of corrupt practices or non compliance with the provisions of the Act; or

(c)
that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)
that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

Consequently, a breach of the rules enacted in the Electoral Act, 2002 does not ipso facto invalidate an election. It is only where the breach can be successfully challenged in accordance with the provisions of section 134(1) of the Act that an election can be invalidated. (Pp. 230-231, paras. G-B)

Per EJIWUNMI, J.S.C. page 231, paras. D-F:

“To begin with, I think that the learned counsel for the appellants cannot be right in his submission that the learned Justice of the Tribunal was wrong to have considered the provisions of section 134(1) in the course of determining whether the breaches of sections 18 and 40(1) alleged in the petition should have compelled the Tribunal to invalidate the election. This is because sections 18 and 40(1) as already stated were designed to stipulate what must be done by those charged with duties connected with the conduct of an election, and what the voters should do pursuant to their intention to vote. And if a petitioner believed that there have been breaches in the conduction, then

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the breaches would have to be questioned under any or all of the relevant grounds set out in section 134(1).”

7.
On Whether irregularity at election not attributable to a candidate can affect his election –

Irregularities at the conduct of an election, or acts of violence during an election which are neither the acts of a candidate nor linked to a candidate cannot affect the candidate’s election. In other words, an elected candidate cannot have his election nullified on the ground of corrupt practices or any other illegality committed in an election unless it is established that the candidate expressly authorised the illegality. In the instant case, there was no evidence that the 1st and 2nd respondents were responsible directly or indirectly for the acts of violence which occurred during the election as alleged by the appellants. In the circumstance, the acts of violence could not affect their election. [Oyegun v. Igbinedion (1992) 2 . (Pt. 226) 747; Agomo v. Iroakazi (1998) 19 . (Pt. 568) 173; Egbe v. Etchiel (1955-56) WRNLR134; Ketie v. Isa (1965) NMLR17; Obasanjo v. Buhari (2003) 17 . (Pt. 850) 510 referred to.] (Pp. 199-200, paras. H-B; 264- 265, paras. H-B)

8.
On Pre-condition for winning election to office of President –

The purport of section 134(2)(b) of the 1999 Constitution, which stipulates that where there are more than two candidates for an election to the office of President of the Federation, a candidate shall be deemed to have been elected where he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states and the Federal Capital territory of the Federation, is that a winning candidate should have the required majority. Consequently, once a winning candidate has attained the required majority, it cannot be argued that because there was no election in one State, or because the

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election in a State is voided, the entire election must be voided unless where the result in that State, had then been an election, would have affected the final result of the election. In the instant case, the fact that the election in Ogun State was voided by the Court of Appeal did not mean the entire election was invalid. The Court of Appeal was therefore right when it did not invalidate the entire election. [Awolowo v. Shagari (1979) 6-9 SC 51; Akinfosile v. Ijose (1960) SCNLR 447 referred to.] (Pp. 242-243, paras. G-A)

9.
On Pre condition for winning election to office of President –

By virtue of section 134(1) and (2) of the 1999 Constitution, a candidate for an election to the office of President shall be deemed to have been duly elected, where:

a.
in case of only two candidates for the election –

(i)
he has the majority of votes cast at the election; and

(ii)
he has 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 and the Federal Capital Territory, Abuja.

b.
in case of more than two candidates for the election –

(i)
he has the highest number of votes cast at the election; and

(ii)
he has 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 and the Federal Capital Territory, Abuja.

(P. 205, paras. D-H)

10.
On Meaning of “Office ” under the 1999 Constitution –

By virtue of section 318 of the 1999 Constitution, “Office” means any office the appointment to which is by election under the Constitution. [Ojukwu v.

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Obasanjo (2004) 12 . (Pt. 886) 169 referred to and followed.] (P. 165, paras. A, E-F)

11.
On Whether appointment as Head of Federal Military Government amounts to election as President of Nigeria – Under section 8 of the Constitution (Basic Provisions) Decree No 32 of 1975, the Supreme Military Council had the exclusive responsibility for the “appointment” of the Head of the Federal Military Government. The operative word is “Appointment”, which does not have the same meaning as “election.” Therefore, the argument of the appellants to the effect that the appointment of the 1st respondent to the office of the Head of the Federal Military Government in 1976 amounted to election to the office of the President was rejected as not tenable. [Ojukwu v. Obasanjo (2004) 12 . (Pt. 886) 169 referred to and followed.] (Pp. 165-166, paras. H-C)

12.
On Distinction between President under 1999 Constitution and Head of Federal Military Government under Constitution (Basic Provisions) Decree 32 of 1975 –

By virtue of section 318 of the 1999 Constitution, “President” or “Vice-President” means the President or Vice-President of the Federal Republic of Nigeria. In contrast, section 20 of the Constitution (Basic Provisions) Decree No. 32 of 1975 defined the Head of the Federal Military Government as the Commander-in- Chief of the Armed Forces of the Federal Republic of Nigeria. [Ojukwu v. Obasanjo (2004) 12 . (Pt. 886) 169 referred to and followed.] (P. 165, paras. F-G)

13.
On Disqualifying factors for election into office of President –

By virtue of section 137(1) (b) of the 1999 Constitution, a person shall not be qualified for election to the office of the President if he was elected to such office at any two previous elections. In the instant case, the 1st respondent had been elected to the office of President

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only on one previous occasion in 1999. His appointment to the office of Head of the Federal Military Government of Nigeria and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria in 1976 did not amount to election to the office of President of Nigeria. In the circumstance, the 1st appellant was qualified to contest the Presidential election in 2003. (P. 207, paras. C-G)

14.
On Whether 1st respondent disqualified to contest Presidential election by virtue of his previous appointment as Head of Federal Military Government –

          Per EJIWUNMI, J.S.C. at page 244, paras. E-F:

“The question raised under this issue by the appellants is premised on the view held by the appellants that the 1st respondent had already been elected twice. This question had been considered and settled in Ojukwu v. Obasanjo (2004) 12 . (Pt. 886) 169. The unanimous decision of this court was that the 1st respondent was not disqualified by reason of section 137(1) of the 1999 Constitution from contesting the presidential election 2003. Nothing in the argument of learned Senior Counsel is sufficiently persuasive for me to depart from the earlier decision of this court.”

Per EDOZIE, J.S.C. at pages 275-276, paras. E-B:

 "This issue is predicated on the provision of section 137(l)(b) of the 1999 Constitution to the following effect:

‘A person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections.’

In canvassing the disqualification of the 1st respondent on the basis of the above provision, the appellants rely on, first, the appointment in 1976 of the 1st respondent by the Supreme Military Council as Head of State and Commander-in-chief of the Armed Forces of the

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Federal Republic of Nigeria pursuant to section 8(d) of the Constitution (Basic Provisions) Decree No. 32 of 1975 and secondly, the election in 1999 of the 1st respondent as the President of the Federal Republic of Nigeria under the 1999 Constitution. Whether these two previous offices held by the 1st respondent disqualified him from contesting the election the subject matter of this appeal has been judicially considered by this court in the case of Ojukwu v. Obasanjo (2004) 12 N.W.L.R. (Pt. 886) 169 in which the unanimous decision of this court was that the 1st respondent was not disqualified by reason of section 137(l)(b) of the 1999 Constitution from contesting the presidential election in the year 2003.1 am not persuaded from the arguments of the appellants to depart from this decision.”

Per PATS-ACHOLONU, J.S.C at page 297, paras. G-H:

“Issue No. 17 is on whether Chief Obasanjo should have been allowed to contest the election. In other words was Chief Olusegun Obasanjo qualified to contest the election of 2003. The matter of whether Chief Olusegun can or could contest the election of 2003 has been settled by the Supreme Court in Ojukwu v. Obasanjo (2004) 12 . (Pt. 886) 169 at 200. This court does not intend to revisit the issue again.”

15.
On When Presidential election can be cancelled or nullified –

An order of cancellation or nullification of Presidential election should not be made by a tribunal or court without clear, positive, credible and over-whelming evidence led to the effect that the entire election was totally flawed nation wide; and that the conduct of the election was in breach of major and very fundamental provisions of the Electoral Act. In the instant case, although the appellants sought the setting aside of the entire

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election on the grounds inter alia of violence, intimidation and breach as of the Electoral Act, 2002, they failed to show who was responsible for the violence and intimidation, or how the alleged breach as of the Electoral Act affected the entire outcome of the election, including the results accredited to the 1st appellant. The Court of Appeal was therefore right in rejecting the order sought by the appellants. (Pp. 308-309, paras. G-C; 311, paras. D-E)

Per AKINTAN, J.S.C at pages 308-309, paras. H-C:

“In the instant case, the 1st appellant was just one of the numerous candidates that contested for the office of President of Nigeria at the election. The 2nd appellant was also one of many political parties that fielded candidates for the same office. The 1st appellant, according to the result declared at the end of the election, scored just about half of the votes credited to the 1st respondent. But the 1st appellant did not challenge the scores credited to the 1st respondent nor prayed the court below to declare him a winner and to that end, leading credible evidence to show that he scored more votes than the 1st respondent at the election. But he prayed the court below to set aside the entire election on the grounds, inter alia, that certain breaches of the provisions of the Act were committed without showing how the alleged breaches affected the entire out-come of the election, including the results credited to the other contestants, and himself. The court below was therefore right in rejecting the request and the interpretation given to the provisions of the Act is, in my view, quite appropriate. “

16.
On Effect of nullification of Presidential election in a State of the Federation –

The fact that the Presidential election in a State of the Federation is nullified does not mean that election was not held in that State; or that the Presidential election in the entire Federation is fatally flawed.

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In the instant case, the appellants’ contention that the nullification of the Presidential election in Ogun State meant that the election did not hold, and that consequently, the entire Presidential election ought to be annulled, is baseless merely because the election did not hold in Ogun State. (Pp. 159-160, paras. F-A)

17.
On Who is a necessary respondent to an election petition –

Under section 133(2) of the Electoral Act, 2002, the three classes of persons who may be made respondents to an election petition are:

(a)
The person whose election is complained of;

(b)
Any electoral officer, a presiding officer or a returning officer whose conduct in the election is complained of;

(c)
Any other person who took part in the conduct of the election whose conduct during the election is complained of.

In the instant case, the appellants’ failure to join election officers and other persons whose conduct of the election and during the election was complained of was fatal to the paragraphs of the appellants’ petition relating to these people; and the Court of Appeal rightly so held. The Court of Appeal also rightly discountenanced the evidence led in respect of such paragraphs of the petition. [Obasanjo v. Buhari (2003) 17 . (Pt. 850) 510; Egolum v. Obasanjo (1999) 7 . (Pt. 611) 423 referred to.] (Pp. 313-314, paras. H-C; 268, paras. F-G)

18.
On How to determine necessary respondent to election petition –

The election officials who are required to be joined as necessary parties under section 133(2) of the Electoral Act, 2002, are those whose conduct at the election the petitioner is complaining about in the petition. It is therefore necessary that the complaints of a petitioner must be examined before a decision is taken whether the appropriate official who took

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part in the conduct of an election and whose conduct is subject of complaint in the petition was joined. In the instant case, the complaint of the appellants in respect of the election in Ogun State was that the votes counted for the 1st appellant at 142 polling stations and recorded by the 2nd appellant’s polling agents was less than the votes recorded by the 3rd respondent for the appellant in the entire State. In the circu鈥�

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