Divided Supreme Court upholds Yar’Adua’s election

Date: 13-12-2008 10:47 am (13 years ago) | Author: King Samuel O Dguy
- at 13-12-2008 10:47 AM (13 years ago)
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President Umaru Musa Yar’Adua narrowly held on to his office on Friday, following a split decision of the Supreme Court.

 
 

The decision was in respect of the appeals filed by the presidential candidates of the All Nigeria Peoples Party and the Action Congress, Gen. Muhammadu Buhari and Alhaji Atiku Abubakar respectively, challenging the upholding of Yar’Adua’s election by the Court of Appeal (which is also the presidential election tribunal).

Friday’s judgment in Buhari’s appeal left four out of seven justices of the apex court upholding the April 21, 2007 presidential election while the remaining three said it could not stand. Justices George Oguntade, Maryam Mukthar and Samuel Onnoghen, while delivering their judgments in respect of Buhari’s appeal, held that there was substantial non-compliance with the Electoral Act 2007, which vitiated the election.

They consequently set aside the judgement of the Appeal Court, which had earlier upheld the election, and its place nullified the presidential election. But, the remaining four members of the panel, namely, the Chief Justice of Nigeria, Justice Idris Kutigi, Justice Iyorgyer Katsina-Alu, Justice Niki Tobi and Dahiru Musdapher upheld the election.

Abubakar’s petition, however, received heavy knocks from the justices, with six of them saying that the Court of Appeal was right to have dismissed it. Only Justice Oguntade upheld Atiku’s argument that he was excluded from contesting the presidential election.

Justice Tobi, who delivered the lead majority judgment in Buhari’s appeal, said there was no proof that the non-serialisation of the ballot papers used for the election conferred advantage of Yar’Adua. He said, “How can this court come to the conclusion without proof that the alleged non-serialisation of ballot papers substantially affected the result of the election? This court lacks the competence or jurisdiction to do so. After all, this is not one of the matters that this court can take judicial notice within the provision of section 74 of the Evidence Act.”

Tobi, who laboured through a 97-page judgment to uphold the election, said, “I do not also see that the non-serialisation favoured the respondents and disfavoured the appellant. Above all, the appellants did not tender even a copy of the unserialised ballot paper. Where is then the evidence in proof? I ask this question because I do not agree with the Court of Appeal that there was an admission on the part of the respondents.”

Justice Tobi further stated that Buhari did not adduce enough evidence to prove his case. He said, “In an election petition challenging the conduct of the election throughout the length and breadth of a vast country like Nigeria, are 19 witnesses adequate to prove the case of the appellant, even when it is conceded once again that a case is not won by calling a village or community of witnesses?”

He also noted that Buhari withdrew all allegations of crime, including corruption, and that the paragraphs were duly struck out. Tobi argued that because Nigeria is a vast country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and many political parties, there must always be irregularities. However, he said, “Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to affect substantially the result of the election.”

While dismissing Abubakar’s petition, Justice Katsina-Alu, who delivered the lead majority judgment, held that the former vice-president was not excluded from the election. Having held that Atiku duly participated in the election, all other issues raised by him were immaterial.

He said, “In my judgement, therefore, the appellants were not excluded in participating in the election held on 21st April, 2007. The issue disposes of the appeal. That being so, I do not deem it necessary to consider the other issues raised in the appeal.”

But Justice Oguntade disagreed. He said, “I have no doubt in my mind that INEC wilfully and recklessly excluded the 1st Petitioner (Atiku) from the 21st April, 2007 elections.” He stated that the courts were duty bound to help ensure the enthronement of true democracy. He said, “If elections are to be held in Nigeria, which are credible and rancour free, the starting point is the enforcement of the provisions of our Electoral Act. We cannot be witnessing violence resulting in the loss of many lives at each election. An interpretation of the Electoral Act in a manner which undermines rather that promotes the advent of democracy is bound to create avoidable problems for the country.”

In Buhari’s case, Oguntade, who presented the lead minority judgment, said, “The inevitable conclusion I arrive at is that the failure of the 1st and 2nd respondents (the Independent National Electoral Commission and Maurice Iwu) to use serialised ballot papers bound in booklets is clearly a non-compliance which shows that the 2007 presidential elections were not conducted substantially in accordance with the principles of the Electoral Act, 2006. The court below should have nullified the said elections for this reason.

“The court below went on to say that the petitioner/appellant did not show that the failure to use serialised ballot papers and have same bound in booklet substantially affected the result of the election.  With respect to their Lordships of the court below, they were wrong in their view. They failed to bear in mind that the printing of serialised ballot papers and bound in booklets was an act to be performed before the elections were conducted.

“The said act therefore was a condition precedent to the holding of the elections.  When a provision of the law requires an act to be performed before taking any further steps and that act is not performed, the further steps taken may amount in law to a nullity. The reasoning of the court below would appear to be curious. They proceeded on the basis that the elections conducted with ballot papers unauthorized by law was valid; and then turned round to ask the petitioners/appellants to prove that the same election was invalid for non-compliance. They unwittingly put the cart before the horse.  That was a strange way to reason for a court.  A court could not first assume that a disputed act was valid and then place on the plaintiff the onus of proving the invalidity of the same act when what was in dispute was the constitutive elements which would lead to a pronouncement of the validity of the Act.”


from punch


Posted: at 13-12-2008 10:47 AM (13 years ago) | Gistmaniac
- Toks-E at 13-12-2008 12:09 PM (13 years ago)
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 Nigerians are "suffering and smilling........49 siting,99 standing" by fela

Posted: at 13-12-2008 12:09 PM (13 years ago) | Addicted Hero
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