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Yusufu vs. Obasanjo

ALHAJI MOHAMMED DIKKO YUSUFU

MOVEMENT FOR DEMOCRACY AND

JUSTICE (MDJ)

V

CHIEF OLUSEGUN AREMU OKIKIOLA OBASANJO & 56 ORS.

COURT OF APPEAL

( ABUJA DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

ISA AYO SALAMI, JCA

MAHMUD MOHAMMED, JCA ( Read the Lead Ruling )

SYLVANUS ADIEWERE NSOFOR, JCA

FRANCIS FEDODE TABAI, JCA

CA/A/EP/1/2003

THURSDAY, 17TH JULY, 2003 

CONSTITUTIONAL LAW - Constitution - Supremacy of

CONSTITUTIONAL LAW - National Assembly - Source of the power of to make Electoral Act 2002

COURT - Court of Appeal and all election tribunals - Source of jurisdiction of on election matters

COURT - Jurisdiction of court - Determinant of

ELECTION PETITION - Allegation of crime in an election petition Standard of proof required to establish same

ELECTION PETITION - Court of Appeal and all election tribunals Source of jurisdiction of to hear election petition

ELECTION PETITION - Petitioner - Whether can rely on grounds under the Constitution but outside the scope of the Electoral Act, 2002

ELECTION PETITION - Respondent - Who should be made respondent thereto - Section 133(2) of the Electoral Act, 2002 considered

ELECTION PETITION - Technicalities - Need to avoid strict adherence in matter relating thereto

EVIDENCE - Averments in pleadings and petitions - Whether amounts to evidence

EVIDENCE - Proof - Allegation of crime in an election petition Standard of proof required to establish same

INTERPRETATION OF STATUTE - Electoral Act No. 4 of 2003, section 133(2) -  Proper construction of

INTERPRETATION OF STATUTES - Ejusdem generis rule - Meaning of

PARTIES - Parties - Joinder of parties - Respondents improperly joined -  Course open thereto

PRACTICE AND PROCEDURE - Parties - Joinder of parties Respondents improperly joined - Course open thereto

PRACTICE AND PROCEDURE - Pleadings and petitions - Whether averments therein amount to evidence

STATUTE - Electoral Act 2002 - Power of the National Assembly to make - Source of

STATUTE - Electoral Act No. 4 of 2003, section 133(2) -  Proper construction of

WORDS AND PHRASES - ‘Ejusdem generis rule’ - Meaning of

Issues:

1.              Whether constitutional breaches in the conduct of an election can be held to be a valid ground in an election petition under the Electoral Act, 2002 such as to confer jurisdiction on the

Court of Appeal to hear and determine such petition.

2.              Whether the non-joinder of the Police and the Army against whom criminal allegations are made amounts to violation of section 133(2) of the Electoral Act, 2002 so as to render the petition incompetent.

3.              Whether the joinder of the 5th - 39th and 42nd - 56 th respondents amounts to a misjoinder.

Facts:

On 2/5/2003, the petitioners filed their petition challenging the election and return of the 1st respondent as the President of the Federal Republic of Nigeria in the election to that office conducted by the Independent National Electoral Commission (INEC) on 19/4/2003. On 21/5/2003, the petitioners filed an application in the court for leave to amend their petition and that application was heard and partly granted on 5/6/2003 giving the petitioner 7 days within which to file and serve their amended petition. The amended petition was filed on 9/6/2003.

On being served with the amended petition, the 1st and 2nd respondents filed two identical motions challenging the jurisdiction of the court to entertain and/or consider the petition. Similar objection was also raised on the reply to the petition filed by the 1st respondent on 12/6/2003. The reliefs sought by the 1st respondent in his motion also filed on 12/6/ 2003  which are slightly different from those sought on behalf of the 2nd respondent are as follows:

(1)          AN ORDER of the court striking out this petition on the ground that the court lacks the jurisdiction to entertain and or consider the petition.

IN THE ALTERNATIVE

(2)          AN ORDER striking out paragraphs 10, 11 , 12, 13(c)(i),

14(a)( b)(i)(d), 15(c)(d), 16(b), (c), (e), 17 and 18 of the petition on the ground of incompetence and non-compliance with mandatory provisions of the Electoral Act.

IN THE ALTERNATIVE

(3)          AN ORDER directing that the petitioner shall not lead evidence on matters, allegations and facts contained in paragraphs 10, 11 , 12, 13(c)(i), 14(a)(b)(i)(d), 15(c)(d), 16(b)(c)(e) 17 and  18 of the petition.

(4)          AN ORDER striking out relief 4 of the petition on the ground that the Tribunal lacks jurisdiction to entertain the relief.

(5)          AN ORDER striking out the 5th to 39th and 42nd to 56th respondents as they are not necessary parties as no cause of action is disclosed against them.

The grounds upon which the application was brought are:

1.              The court lacks jurisdiction to entertain the petition on the ground that the petition does not disclose reasonable cause of action.

2.              The petition failed to comply with the mandatory provisions of section 133(2) of the Electoral Act.

3.              The court lacks competence and jurisdiction to consider and determine the allegation contained in the paragraphs complained of in the petition in so far as they relate to places mentioned.

4.              The allegations in paragraph 3 complained against are not cognizable in an Election Petition.

In the motion filed by the 2nd respondent on 13/6/2003, the reliefs sought therein except for the reliefs sought in the amended reliefs by the 1 st respondent to include paragraphs 10, 11 and 12 of the petition, are identical to the reliefs asked by the 1st respondent quoted above in his motion filed on 12/6/2003.

Against the same amended petition, the 40th - 55th respondents has also filed a notice of preliminary objection on 20/6/2003, asking for the following orders:

“1. Striking out all the paragraphs contained in the petition filed herein on behalf of the petitioners/respondents except paragraphs 1, 2, 3, 4, 5, 6, 7 ,8, 17(a), 17(b), 17(c) and 17(d), 18 c - f and 19a - c for lack of jurisdiction.

2.            Striking out or dismissing the petition.”

The grounds in support of the preliminary objection include:“(1) The proper parties are not before the court.

(2)           The petitioners have failed to question the election challenged herein on any of the grounds permitted by the Electoral Act.

(3)           The petitioners failed to comply at all or fully with the provisions of paragraph 4(1)(a) of the 1st Schedule to the Electoral Act, 2002 .”

The identical motions filed by the 1st and 2nd respondents challenging the competence of the petition are also supported by identical facts deposed in 11-paragraph affidavits. The gist of these facts is that the allegations concerning the officials and persons who participated in the election in the states listed in the paragraphs complained of in the applications who ought to be joined by reason of section 133(2) of the Electoral Act, 2002, were not joined and as such the petition was not presented in accordance with the statutory provisions of the Electoral Act, 2002. The facts deposed further pointed out that 5th - 39th and 42nd - 56th respondents are not necessary parties to the suit as no averment relates to them in the petition.

On 7/7/2003 and 8/7/2003 respectively, the two applications filed by the 1st and 2nd respondents along with the notice of preliminary objection filed by the 40th - 55th respondents were heard together.