- Yusufu vs. Obasanjo
- ₦ 200
Yusufu vs. Obasanjo
ALHAJI MOHAMMED DIKKO
MOVEMENT FOR DEMOCRACY
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
THURSDAY, 17TH JULY,
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 - 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 -
STATUTE - Electoral Act No. 4 of 2003, section 133(2) - Proper construction of
WORDS AND PHRASES - â€˜Ejusdem generis ruleâ€™ - Meaning of
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.
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.
Whether the joinder of the 5th - 39th and 42nd - 56 th
respondents amounts to a misjoinder.
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 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:
AN ORDER of the court striking out this petition on the
ground that the court lacks the jurisdiction to entertain and or consider the
IN THE ALTERNATIVE
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
IN THE ALTERNATIVE
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.
AN ORDER striking out relief 4 of the petition on the
ground that the Tribunal lacks jurisdiction to entertain the relief.
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:
The court lacks jurisdiction to entertain the petition
on the ground that the petition does not disclose reasonable cause of action.
The petition failed to comply with the mandatory
provisions of section 133(2) of the Electoral Act.
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.
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.
same amended petition, the 40th - 55th respondents has also filed a notice of
preliminary objection on 20/6/2003, asking for the following orders:
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.â€
The grounds in support of the preliminary objection
include:â€œ(1) The proper parties are not before the court.
The petitioners have failed to question the election
challenged herein on any of the grounds permitted by the Electoral Act.
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,
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.
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.