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Yusuf v. Obasanjo.

ALHAJI MOHAMMED DIKKO YUSUF

MOVEMENT FOR DEMOCRACY & JUSTICE ( MDJ )

 

V

CHIEF OLUSEGUN AREMU OKIKIOLA OBASANJO & 53 OTHERS

COURT OF APPEAL

( ABUJA DIVISION )

ISA AYO SALAMI JCA (Presided and Read the Lead Judgment)


PIUS OLAYIWOLA ADEREMI JCA

ISTIFANUS THOMAS JCA

NWALI SYLVESTER NGWUTA JCA

STANLEY SHENKO ALAGOA JCA

CA/A/EP/1/2003

THURSDAY, 27TH OCTOBER, 2005

ACTION - Issues - Issue raised and determined between parties Whether can be resuscitated

CONSTITUTIONAL LAW - Breaches of the Constitution - Impropriety of determining in an election petition

CRIMINAL LAW AND PROCEDURE - Corrupt practices - Allegation of - How established

CRIMINAL LAW AND PROCEDURE - Crime - Allegation of commission of - How must be proved

ELECTION PETITION - Allegation of corrupt practices -  Burden of proof therein - How discharged

ELECTION PETITION - Constitutional provisions - Breaches of Impropriety of determining in an election petition

ELECTION PETITION - Corrupt practices - Allegation of - How established

ELECTION PETITION - Non-compliance which will result into invalidation of an election - What amounts to

ELECTION PETITION - Parties to - Officers whose conduct are called into question - Mandatoriness of joining

ELECTION PETITION - Result - Petitioner challenging election result on account of falsity of result - Duty on to plead and produce in evidence two sets of results

ELECTION PETITION - Rules and forms which will invalidate an election - Non-observance of - What amounts to

ELECTION PETITION - Substantial non-compliance to justify the nullification of an election - What amounts to

ELECTION PETITION - Voting - Unlawful voting in an election - Onus of proof of

ELECTORAL MATTERS - Donations to political parties - Nature of

ELECTORAL MATTERS - Election - Restriction on movement of people on election days - Whether amounts to infringement of a constitutional right

ELECTORAL MATTERS - Electoral offences - Burden of proof of

ELECTORAL MATTERS - Manual for election officials - Contents of suspending constitutional provisions -  Effect of

ELECTORAL MATTERS - Non-compliance with Electoral Act - When will invalidate an election

ELECTORAL MATTERS - Return of a candidate as winner - Where wrongful - Duty on court to void

EVIDENCE - Best evidence - Nature of evidence referred to as - Place of hearsay evidence

EVIDENCE - Conflicting pieces of evidence - Attitude of court to

EVIDENCE - Notice to produce documents - Failure of party served with to comply with - Duty of party requiring production to produce secondary evidence of

EVIDENCE - Secondary evidence - Tendering of same - Necessity for party doing laying proper foundation

INTERPRETATION OF STATUTES - Clear and unambiguous words of statute - How interpreted

NOTABLE PRONOUNCEMENT on the duty of the police and not the military to protect and ensure the sustenance of Nigeria’s nascent democracy

STATUTE - Electoral Act No. 4 of 2002, section 135(1) - ‘And’ therein -  How construed


WORDS AND PHRASES - ‘And’ in section 135(1), Electoral Act No. 4 of 2002 - How construed

WORDS AND PHRASES - ‘Corrupt practices’ - Meaning of

Issues:

1.              Whether the 1st respondent was duly or validly elected and/ or returned as the President of the Federal Republic of Nigeria pursuant to the election held on the 19th of April, 2003.

2.              Whether the election held on the 19th of April, 2003 was void.

3.              Whether a fresh election should be held (excluding the 1st respondent and presidential candidate of ANPP and their political parties who are disqualified from being fielded or from sponsoring candidates as the case may be by reason of their disqualification and contravention of the Electoral Act No. 4 of 2002) in accordance with the provision of the Electoral Act No. 4 of 2002.

4.              Whether the 39th - 53rd respondents (as officials of the Independent National Electoral Commission) and the 2nd respondent, All Nigeria Peoples Party and 54th respondent who directly and negligently misconducted the election, in contravention of the Electoral Act, 2003 be recommended for criminal prosecution by the Attorney-General pursuant to section 144 of the Electoral Act No. 4 of 2002.

Facts:

The petitioners filed an election petition before the Court of Appeal, Abuja Division contesting the return of the 1st respondent as the winner in the presidential election held nationwide on 19th April, 2003. Following a number of applications, objections and appeals to the Supreme Court, the petition which originally contained nineteen paragraphs was reduced to sixteen paragraphs. Further, a second amended petition was filed based on the grounds of fundamental unconstitutionalities as to the illegal deployment of police and armed forces personnel to supervise the conduct of the election, specific intimidation of voters, corrupt practices, undue and unlawful voting, undue return and substantial non-compliance with the regulations for conducting the election.

Thereafter, the respondents filed their respective replies, thereby joining issues with the petitioners. In the course of the trial which began on 5 th April, 2005, the petitioners called a total of twenty-one witnesses, and tendered and admitted twenty-seven exhibits. The 1st respondent on the other hand called only one witness; the second, thirty-fifth and thirty-sixth respondents did not call any witness. While the second respondent rested its case on the cross-examination of the petitioners’ witnesses, the thirtyfifth and thirty-sixth respondents’ case which was basically in support of the petition was rested on that of the petitioners. The thirty-eighth to fiftythird respondents on their part rested their defence on the evidence of the petitioners’ first witness.

The court ordered that counsel for the parties submit written addresses, which order counsel complied with. Thereafter, the court delivered its judgment.