IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 12TH DAY OF DECEMBER 2008
SC 51/2008
BETWEEN
MUHAMMADU BUHARI ........................................................................ APPELLANT
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION and 4 OTHERS........................... RESPONDENTS
|
Before: |
Idris Legbo Kutigi, CJN; Aloysius Iyorgyer Katsina-Alu; Niki Tobi; Dahiru Musdapher; George Adesola Oguntade; Aloma Mariam Mukhtar; Walter Samuel Nkanu Onnoghen, JJSC |
ISSUES
Whether Umaru Musa Yar’adua (fourth respondent) was qualified to contest the presidential election of 21 April 2007.
Whether the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006, and on whom rested the burden of proving non-compliance with the Electoral Act, 2006.
Whether the ballot papers used in the election complied with the requirements of the Electoral Act.
Whether any non-compliance with the Electoral Act substantially affected the outcome of the election.
Whether the Constitution, especially sections 248 and 285, gave the President of the Court of Appeal the power to issue Practice Directions for the proceedings of the court in terms of its original jurisdiction under section 239 of the Constitution.
Whether inadmissible evidence by affidavit could be received by the court on the ground that the parties did not object to such evidence.
Whether the election was invalid on account of corrupt practices.
Whether the report of the Commission of Inquiry, set up by the Governor of Abia State, found the fourth and fifth respondents guilty of embezzlement or fraud.
Whether the findings of the Commission of Inquiry set up by the Governor of Abia State into the conduct of the fourth and fifth respondents had any probative value.
FACTS
The appellant, General Muhammadu Buhari, sought an order in the Court of Appeal, Abuja, sitting as the Presidential Election Tribunal, that the presidential election of 21 April 2007 in which the fourth respondent, Umaru Musa Yar’adua, was elected president, be annulled on the grounds that the fourth respondent had not been qualified to contest the election on account of findings of fraud and embezzlement against him by a Commission of Inquiry set up by the Governor of Abia State, and that the election was invalid by reason of non-compliance with the Electoral Act, 2006 and corrupt practices.
In compliance with the Practice Directions issued by the President of the Court of Appeal, (sitting as the Presidential Election Tribunal), the parties agreed that the depositions of witnesses be taken as adopted and that all documents tendered from the Bar be admitted in evidence.
The Court of Appeal then dismissed the petition for want of evidence in support of the petitioner’s case and declared the fourth respondent the winner of the presidential election held on 21 April 2007 election. The appellant appealed to the Supreme Court on the grounds that the election failed to comply with the provisions of the Electoral Act, 2006 and on account of corrupt practices.
HELD
Leading judgment by Niki Tobi, JSC; with I.L. Kutigi Chief Justice, A.I. Katsina-Alu, D. Musdapher, JJSC concurring; W.S.N. Onnoghen, A.M. Mukhtar, G.A. Oguntade, JJSC dissenting
- Burden of proof
The burden of proof is not static. It fluctuates between the parties. The burden of first proving the existence of a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party. In the instant case, the burden of proving non-compliance with the Electoral Act lay with the appellant. Per Tobi, JSC at 171.
- Effect of conducting an election with invalid ballot papers
Section 45(2) of the Electoral Act 2006 had not been complied with. A valid election can not be conducted without valid ballot papers. Section 67 of the Electoral Act provided that ballot papers that did not comply with the requirements of the Act cannot be used in any election. Per Kutigi, CJN at 261.
- Further burden to prove substantiality of non-compliance with Electoral Act
The appellants then had to prove that such non-compliance with the Electoral Act substantially affected the result of the election. The respondents could then satisfy the court that non-compliance did not affect the outcome. Per Kutigi, CJN at 261.
If a petitioner proves non-compliance with the provisions of the Electoral Act, he is only entitled to succeed if the court is satisfied that such non-compliance substantially affected the result of the election. Per Kutigi, CJN at 261; Tobi, JSC at 171; Katsina-Alu, JSC at 265; Musdapher, JSC at 268.
- Non-compliance with the Act, insufficient to invalidate election
The appellant had failed to prove that non-compliance with the provisions of the Electoral Act had substantially affected the result of the election. Buhari v Obasanjo (2005) 13 NWLR (Part 900) 487 approved and followed. Non-compliance with the Electoral Act, without more, was not sufficient to invalidate the election. Per Kutigi, CJN at 261; Per Tobi JSC at 171.
- Jurisdiction of the court on the propriety of serialisation of ballot papers
There was no basis for the lower court to have found that the propriety and correctness of the serialisation of the ballot papers had affected the outcome of the election. The Court lacked the competence or jurisdiction to make such a finding. Per Kutigi CJN at 261.
- Right of the president of Court of Appeal to make Practice Directions
The President of the Court of Appeal has the power to make Practice Directions under the Federal High Court (Civil Procedure) Rules for the purpose of regulating the practice and procedure of the Election Tribunals. Per Tobi, JSC at 171.
- Limits of Practice Directions
Although the president of the Court of Appeal had the power to make Practice Directions, such Practice Directions had to be within the confines of the law. The witness depositions in compliance with the Practice Directions were incompetent as they offended the provisions of section 90(b) and (c) of the Evidence Act. Per Tobi, JSC at 171.
- Constitutional provisions prevail over Practice Directions
If there is a conflict between the Constitution and Practice Directions, the former shall prevail. So too, if there is a conflict between an enabling statute and Practice Directions. Per Tobi, JSC at 171.
- Inadmissible evidence cannot be cured by consent
It did not matter that inadmissible evidence was admitted by consent of the parties. The affidavits did not meet the requirements of the law and were, therefore, inadmissible. Per Tobi, JSC 171; Musdapher, JSC at 268.
- Probative value of documents tendered under Practice Direction
The basic aim of tendering documents in bulk was to ensure the speedy hearing of election petitions . . . But that did not ipso facto permit the court to attach probative value to documents that lacked such value . . . As the documents failed the test, the Court of Appeal was right in expunging them. It cannot be said that the Court of Appeal did not evaluate the evidence. Per Tobi, JSC at 171.
- Effect of court disregarding evidence
If the court does not make use of evidence of a witness, the evidence will be regarded as dead and moribund in the determination of the live issues. As the Court of Appeal did not place any probative value on the evidence, the evidence is irrelevant. Per Tobi, JSC at 171.
- Power of court to test findings of Commission of Inquiry
The Court had the jurisdiction under section 239(1) of the Constitution to inquire into the validity of the report of the Commission of Inquiry (Exhibit EP2/34) purporting to disqualify the fourth and fifth respondents on grounds of fraud and embezzlement. Such exhibit was invalid and irrelevant. The purported finding, therefore, did not disqualify the fourth respondent from contesting the election. Per Kutigi, CJN at 261; Per Tobi JSC at 171.
- Meaning of criminal conviction
An indictment involves an allegation or commission of a crime which necessitates the drafting of a charge. That is the essence of section 137(1)(i) of the Constitution. There is nothing in the findings of the Commission of Inquiry set up by the Governor of Abia State, to suggest that the fourth and fifth respondents were specifically found guilty of embezzlement or fraud, and so Exhibit EP2/34 did not articulate or vindicate section 137(1)(i) of the Constitution as it is clearly on its own. Per Tobi, JSC at 171.
Chief M.I. Ahamba, SAN, with him Chief Theo Nkire, Chief Femi Falana, Joy Nunieh, Ibrahim Mujaheed, A.T.U. Ibinola, Valentine Ogar, Uloma Emonyonu, Sola Agbeyinka for appellant
Kanu G. Agabi (CON), SAN, A.B. Mahmoud, SAN, Amaechi Nwaiwu, SAN, Bello Fadile, Esq., O.O. Uzzi, Esq., Wole Adebayo, Esq., O.S. Obande, Esq., Musa Elayo, Esq., C.U. Ekomaru, Esq., Okon Efut, Esq., O.O. Obono-Obla, Esq., Irene Ideva, (Mrs), P.O. Ofikwu, Esq., R.A. Umiom, Esq., Ayo Akam, Esq., Chuka Ugwu, Esq., Patience Osagiede (Miss), Rita N. Ogar (Mrs), Darracott Osawe, Esq., Adam Abdullahi, Esq., Egang Agabi, Esq., Ifunanya O. Obumselu (Mrs), John Ochogwu, Esq., O.M. Enebeli (Mrs), A. Ugar (Miss), A. Sadauki, I.S. Utuk, Umar Alhassan for the first and second respondents
Chief Wole Olanipekun, SAN, with him Yusuf Ali, SAN, Dr Alex A. Iziyon, SAN, D.D. Dodo, SAN, Farouk Asekome, for fourth and fifth respondents
The following cases were referred to in this judgment:
Nigeria
Abdul-Raham v Commissioner of Police (1971) NMLR 87
Abu v Alele-Williams (1992) 5 NWLR (Part 241) 340
Abubakar v Yar’Adua (2008) 1 SC (Part 11) 77; (2008) 4 NWLR (Part 1078) 465
Abubakar v Yar’Adua (2008) 4 NWLR (Part 618) 405
Achineku v Ishagba (1988) 4 NWLR (Part 89) 411
Action Congress v INEC (2007) 12 NWLR (Part 1048) 222; (2007) 30 (Part II) NSCQR 1254
Adah v Adah (2001) NWLR (Part 705) 1
Adeniji v NBN (1989) 7 NWLR (Part 960) 212
Aderounwu v Olowu (2000) 4 NWLR (Part 652) 253
Adesanya v President of Nigeria (1981) 5 SC 112
Adimora v Ajufo & others (1988) 3 NWLR (Part 80) 1
Agballah v Nnamani (2005) All FWLR (Part 245) 1052
Agbi v Ogbe (2006) 11 NWLR (Part 990) 65
Ajadi v Ajibola (2004) 16 NWLR (Part 898) 91
Akanni v Makanju (1978) 11 SC 13
Akinfosile v Ijose (1960) SCNLR 447; (1960) 5 FSC 192
Akinfosile v Ijose (1979) 6–10 SC 110
Akpan v Umoh (1999) 11 NWLR (Part 627)
Amadi v NNPC (2000) 10 NWLR (Part 674) 76
Amaechi v INEC (2008) 5 NWLR (Part 1080) 227; (2008) 33 NSCQR (Part I) 332
Anyaegbunam v Attorney-General Ananmbra State (2001) 6 NWLR (Part 710) 532
Aqua Ltd v Ondo Sports Council (1988) 3 NSCC (Vol. 19) (Part 111) 22
Arase v Arase (1981) 5 SC 33
Are v Adisa (1967) 1 All NLR 148
Attorney-General, Kano State v Attorney-General of the Federation (2007) All FWLR (Part 364) 238
Attorney-General, Ondo State v Attorney-General of the Federation (2002) FWLR (Part III) 1972
Atuyeye v Ashamu (1987) 1 NWLR (Part 49) 267
Awojugbagbe Light Industries v Chinukwe (1995) 4 NWLR (Part 390) 379
Awolowo v Shagari (1979) 6–9 SC 51
Awuse v Odili (2005) 16 NWLR (Part 952) 416
Balewa v Muazu (1999) 5 NWLR (Part 604) 636
Balogun v Labiran (1988) 3 NWLR (Part 80) 66
Balonwu v Ikpeazu 13 NWLR (Part 947) 479
Balonwu v Obi (2007) 5 NWLR (Part 1028) 488
Bamaiyi v Attorney-General of the Federation (2001) 12 NWLR (Part 727) 468
Basheer v Same (1992) 4 NWLR (Part 236) 491
Bijou v Oshidarohwa (1992) 6 NWLR (Part 249) 463
Boniface Anyika & Co (Nigeria) Ltd v Uzor (2006) 15 NWLR (Part 1003) 560
Buhari v Obasanjo (2005) 23 NSCQR 575; (2005) 13 NWLR (Part 941) 1
Chukwuogor v Chukwuogor (2007) All FWLR (Part 349) 1154
Dagaci of Dere v Dagaci of Ebwa (2006) 7 NWLR (Part 979) 382
Denloye v Medical Practitioners Disciplinary Committee (1968) All NLR 306
Economides v Thomopulos Ltd (1956) FSC 7
Edokpolo & Co Ltd v Sem-Edo Wire Ind. Ltd (1989) 4 NWLR (Part 116) 473
Effiom v State (1995) 1 NWLR (Part 373) 507
Elemo v Omolade (1968) NMLR 359
Elias v Omobare (1982) 5 SC 25
Eternal Sacred Order of Cherubim and Seraphim v Adewumi (1966) 2 ALR (comm) 85
Eze v Okolonji (1997) 7 NWLR (Part 513) 515
Ezemba v Ibeneme (2004) 4 NWLR (Part 894) 617
Fadlattah v Arewa Textile Ltd (1997) 8 NWLR (Part 518) 546
Fagunwan v Adibi (2004) 17 NWLR (Part 093) 544
Falae v Obasanjo (No. 2) (1999) 4 NWLR (Part 599) 476
Fawehinmi v NBA (No. 1) (1989) 2 NWLR (Part 104) 409
Ferponle v UTITHBM (1991) 4 NWLR (Part 183) 43
Finebone v Brown (1999) 4 NWLR (Part 600) 613
Finunion Ltd v MV Briz (1997) 10 NWLR (Part 523) 95
FMG v Sani (No. 2) (1989) 4 NWLR (Part 117) 624
Fumodoh v Aboro (1991) 9 NWLR (Part 214) 210
Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (Parts 1 & 2) 265
Hambe v Hueze (2000) 4 NWLR (Part 703) 372
Haruna v Modibbo (2004) 16 NWLR (Part 900) 487
Hashidu v Goje (2003) 15 NWLR (Part 843) 361
Hi-Flow Farm Ind v Unibadan (1993) 4 NWLR (Part 290) 719
Ifezue v Mbadugha (1984) 1 SCNLR 427
Igbodin v Obiank (1976) NMLR 212
Ihute v INEC (1999) 4 NWLR (Part 599) 360
Imam v Sheriff (2005) 4 NWLR (Part 914) 80
Imana v Robinson (1979) 3–4 SC 1
Imiere v Salami (1989) 2 NWLR (Part 131) 131
INEC v Nnaji (2004) 16 NWLR (Part 900) 473
Iwelegbu v Ezeani (1999) 12 NWLR (Part 630) 266
Jalingo v Nyame (1992) 3 NWLR (Part 231) 538
Jikantoro v Dantoro (2004) 18 NWLR 646
Kabo Air v INCO Ltd (2003) 6 NWLR (Part 816) 323
Kate Ent. Ltd v Deawoo (1978) 4 SC 91
Kate Ent. Ltd v Deawoo (1985) 2 NWLR (Part 5) 116
Kudu v Aliyu (1992) 3 NWLR (Part 231) 598
Kwajaffa v Bank of the North (2004) NSCQR 343
Ladoja v INEC (2007) 7 SC 99
Lawal v UTC Plc (2005) 13 NWLR (Part 943) 601
Lewis & Peat v Akhimien (1976) 7 SC 157
Mogaji v Odofin (1978) 4 SC 91
Na’bature v Mahuta (1992) 9 NWLR (Part 263) 585
Nafiu v The State (1980) 8–11 SC 130
Ndoma-Egba v Chukwuogor (2004) 6 NWLR (Part 869) 382
Nigerian LNG Ltd v African Development Insurance Co Ltd (1995) 8 NWLR (Part 416) 677
Nnajiofor v Ukonu (1985) 2 NWLR (Part 9) 686
Nneji v Chukwu (1988) 3 NWLR (Part 81) 184
Noibi v Fikolati (1987) 1 NWLR (Part 52) 619
Nuhu v Ojele (2003) 18 NWLR (Part 852) 251
Nwobodo v Onoh (1984) 1 SC 1
Obasanjo v Yusuf (2004) 9 NWLR (Part 877) 144
Obi v INEC (2007) 11 NWLR (Part 1046) 565
Obi-Odu v Duke (2005) 10 NWLR (Part 932) 81
Obun v Ebun (2006) All FWLR (Part 327) 419
Odulaja v Haddard (1973) 11 SC 357
Ogbuinyinya v Okudo (1979) 6–9 SC 32
Ogidi v The State (2005) 5 NWLR (Part 918) 286
Ojiegba v Okwaranyia (1962) 2 SCNLR 358
Ojokolobo v Alamu (1987) 3 NWLR (Part 61) 377
Okereke v Yar’adua (2008) 342 NSCQR 1370
Okonkwo v C.C.B. (Nigeria) Plc (2003) 8 NWLR (Part 822) 347
Okotie-Eboh v Manager (2004) 18 NWLR (Part 905) 242
Okpuriwu v Okpokan (1988) 4 NWLR (Part 90) 554
Okuarume v Obabokor (1965) All NLR 360
Olale v Ekwelendu (1989) 4 NWLR (Part 115) 326
Olaniyan v University of Lagos (1985) 2 NWLR (Part 9) 599
Omoboriowo v Ajasin (1984) 1 SCNLR 108
Ondo State University v Folayan (1994) 7 NWLR (Part 354) 1
Onochie v Odogwu (2006) 25 NSCQR 387
Onwuchekwa v CCB (1991) 5 NWLR (Part 603) 409
Onyeanusi v Miscellaneous Offences Tribunal (2002) FWLR (Part 113) 272
Onyenge v Ebere (2004) 13 NWLR (Part 889) 39
Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587
Oviawe v IRB Ltd (1993) 3 NWLR (Part 492) 126
Owuru v Awuse (2004) All FWLR (Part 211) 1429
Peters v David (1999) 5 NWLR (Part 603) 486
Sanusi v Ayoola (1992) 9 NWLR (Part 265) 275
Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 NWLR (Part 49) 212
Schroder v Major (1989) 2 NWLR (Part 101) 1
Seismograph Services (Nigeria) Ltd v Eyuafe (1976) 9–10 SC 135
Skenconsult Ltd v Ukey (1981) NSCC 1
Sodipo v Lemminkamen OY (1992) 8 NWLR (Part 258) 229
Sorunke v Odebunmi (1960) SCNLR 414
State v Azeez (2008) 4 SC 188
State v Ilori (1983) 1 SCNL 94
Stirling Civil Engineering (Nigeria) Ltd v Yahaya (2005) 11 NWLR (Part 935) 181
Swem v Dzungwe (1966) NMLR 297; (1960) 1 SCNLR 111
Tsoho v Yahaya (1999) 4 NWLR (Part 600) 657
Tukur v Govt. of Gongola State (1989) 4 NWLR (Part 117) 517
UBN Ltd v Oredein (1992) 6 NWLR (Part 274) 355
UBN Plc v Sparkling Breweries Ltd (2000) 15 NWLR (Part 698) 200
Unilag v Aigoro Suit No. SC 32/1984 (Unreported)
University of Lagos v Aigoro (1984) NSCC 745
UNTHBM v Nnoli (1994) 8 NWLR (Part 363) 376
Usman v Garke (2003) 15 NSCQR 24
UTC (Nigeria) Ltd v Pomotei & others (1989) 2 NWLR (Part 103) 244
Woluchem v Gudi (1981) 5 SC 291
Yakubu v Abioye (2001) FWLR (Part 83) 2212
Foreign
Barnes v Jarris [1953] 1 WLR 649
Goodrich v Peimer [1957] AC 65
Hill v William Hill (Park Lane) Ltd [1949] AC 530
Julius v Lord Bishop of Oxford [1880] 5 AC (HL) 215
Liverpool Borough Bank v Turner [1861] 30 LJ Ch. 379
London and Clydesdale Estate v Aberdeen District Council [1980] 1 WLR 182
Morgan v Simpson [1975] 1 QB 151
Re Kensington North Parliamentary Election [1960] 2 All ER 150
Ruffle v Rogers [1982] QB 1220
Thompson v Goold and Co [1910] AC 409
Wallersteiner v Moir [1974] 1 WLR 99
Woodward v Sarsons LRC 733; 1875 L.R. 10 C.P. 733
The following statutes were referred to in this judgment:
Constitution of the Federal Republic of Nigeria, 1979: S 216
Constitution of the Federal Republic of Nigeria, 1999: Ss 4(7)(a), (b), (c); 36(1); 46(1); 137(1)(i); 146; 217; 237(1); 239(1)(a), (b), (c), (2); 240; 248; 272(1); 285(1)(a), (b), (c), (d), (2), (3), (4)
Court of Appeal Act, 2004: S 30
Electoral Act, 2002: S 135(1)
Electoral Act, 2006: Ss 10–25; 45(1), (2); 48; 49(1); 53(1); 63; 64; 67(1), (2); 75; 135; 145(1)(b), (2); 146(1)(a), (b), (c); 159(1)
Evidence Act, 2004: Ss 74; 76; 77(a); 78; 79; 83; 86; 87; 88; 90(b), (c); 91(2); 92(1); 93(1); 95(e); 109; 111(1); 112; 135(1); 136; 137(1), (2); 138
Interpretation Act, 1964: S 10(2)
Interpretation Act, 2004: S 23
Notaries Public Act: Ss 2(2); 19
Oaths Act
Representation of the People Act: S 37
Supreme Court Act: S 22
The following decree was referred to in this judgment:
State Government Decree No. 50 of 1991: S 92(1)
The following law was referred to in this judgment:
High Court Law of Eastern Nigeria, 1963: S 26
Foreign
Parliamentary and Municipal Election Act, 1872
The following rules were referred to in this judgment:
Nigeria
Court of Appeal Rules: Order 19, r 7
Election Tribunal and Court Practice Direction, 2007: Paragraph 1(1)(a), (b), (c), 6(1), (2), (3)
Federal High Court (Civil Procedure) Rules: Order 26, rr 13; 14(1)
High Court of Abia State (Civil Procedure) Rules: Order 43, r 1
Rules of Procedure for Election Petitions: Paragraph 50
Supreme Court Rules: Order 8, r 2
Foreign
RSC: Order 19, r 7
Tobi, JSC (Delivered the lead judgment):– The Presidential Election was conducted on 21 April 2007 throughout Nigeria. In that election, the country is one constituency and it is the Presidential Constituency. The results were announced, two days later and precisely on 23 April 2007. The second respondent, Professor Maurice Iwu, announced the results at a World Press Conference. He declared Alhaji Umaru Musa Yar’Adua and Dr Goodluck Jonathan, the fourth and fifth respondents respectively as the winners. They were the fifth and sixth respondents in the Court of Appeal. Their families and supporters jubilated. They were happy. The two candidates were happy too. They should be. They contested the election and they won. There could not have been a happier moment in their lives at the material time. In the results, Major General Muhammadu Buhari, ANPP, scored 6,605,291 votes. Alhaji Umaru Musa Yar’Adua, PDP, scored 24,638,063 votes.
While the fourth and fifth respondents were happy, the appellant was not happy. He rejected the results. He felt that the election was inconclusive. He filed an election petition together with Chief Edwin Ume-Ezoke, his running mate. Chief Edwin Ume-Ezoke later withdrew from the petition they filed together. They therefore parted ways. General Muhammadu Buhari asked for the following reliefs in paragraph 27 of the petition:
“(i) That the fifth respondent was not qualified to contest the Presidential election of 21 April 2007 consequent upon which his election together with the 6th respondent as President and Vice-President respectively is void.
(ii) That the election to the office of President of the Federal Republic of Nigeria conducted on 21 April 2007 is invalid and therefore cancelled.
(iii) That the third respondent is guilty of gross misconduct for, without any just or probable cause, involving the military in a purely civil matter, the conduct of election, contrary to the powers conferred on his office by section 217 of the Constitution of the Federal Republic of Nigeria.
(iv) That the first respondent conducts another election for the office of the President of the Federal Republic of Nigeria between the remaining 22 (twenty-two) candidates within 3 (three) months.
(v) That the second respondent in the person of Professor Maurice Iwu be disqualified from participation in the conduct of any future elections in the Federal Republic of Nigeria.
(vi) Th