Buhari v. Yar’Adua: Non-Compliance with Electoral Act Alone Is Not Sufficient To Invalidate An Election | Independent Newspapers Limited
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Buhari v. Yar’Adua: Non-Compliance with Electoral Act Alone Is Not Sufficient To Invalidate An Election

Posted: Aug 11, 2016 at 7:53 pm   /   by   /   comments (0)

The 2007 presidential election has gone down in history as about the most flawed electoral process in the annals of representative democracy. International election observers and their local counterparts alike all denounced the election as the apogee of ballot warping, so much so that even the American Congress was compelled to convoke a sitting to hear submissions respecting the shambolic electoral process that was umpired by the Professor Maurice Iwu-led Independent Electoral Commission (INEC). At the time, the overbearing former President Olusegun Obasanjo was the man in the saddle, his weight bearing down on practically every institution of governance in the country. At the conclusion of the election, results were declared by INEC and then ailing Alhaji Umaru Musa Yar’Adua and Dr. Goodluck Ebele Jonathan of the Peoples Democratic Party (PDP) were returned President and Vice President respectively. Their opponent in the election, General Muhammadu Buhari of the All Nigerian Peoples Party (ANPP), filed a petition that originated from the Court of Appeal, being constitutionally the Court with original jurisdiction to hear election petitions in respect of the office of president. The Court threw out Buhari’s application, following which he appealed against the lower court’s decision at the Supreme Court. The Apex Court in turn dismissed his appeal, affirming that the duo of Yar’Adua and Jonathan were duly elected in compliance with the Electoral Act, 2006. Here reported at nuggets of the ratio in the lead judgment delivered by late Honourable Justice Niki Tobi, which finally drove the nail in Buhari’s hope to be returned president in that election.


In The Supreme Court of Nigeria Holden At Abuja

On Friday the 12th of December, 2008



Before Their Lordships

Idris Legbo Kutigi (JSC)

Aloysius Iyorgyer Katsina-Alu (JSC)

Niki Tobi (JSC) (Delivering the lead judgment)

Dahiru Musdapher (JSC)

George Adesola Oguntade (JSC)

Aloma Mariam Mukhtar (JSC)

Walter Samuel Nkanu Onnoghen (JSC)



General Muhammadu Buhari                                           …………………. Appellant


  1. Independent National Electoral Commission
  2. Chief National Electoral Commissioner (Professor Maurice Iwu)
  3. The Inspector General Of Police
  4. Umaru Musa Yar’adua
  5. Dr. Jonathan Goodluck                                        ……………………..…Respondents


Case reviewed by: STEPHEN UBIMAGO

Facts of the Case:

The Presidential Election was conducted on 21st 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 23rd April, 2007. The 2nd respondent, Professor Maurice Iwu, announced the results at a World Press Conference. He declared Alhaji Umaru Musa Yar’Adua and Dr. Goodluck Jonathan, the 4th and 5th respondents respectively as the winners.

In the results, Major General Muhammadu Buhari, ANPP, scored 6,605,291 votes. Alhaji Umaru Musa Yar’Adua, PDP, scored 24,638,063 votes.

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 5th Respondent was not qualified to contest the Presidential election of 21st 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 the 21st April, 2007 is invalid and therefore cancelled.

(iii) That the 3rd 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 1st Respondent conducts another election for the office of the President of the Federal Republic of Nigeria between the remaining 22 candidates within three months.

(iv) That the 2nd 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)      That the President of the Senate takes over the duties of the President of the Federal Republic of Nigeria in accordance with section 146 of the Constitution pending the conduct of another election.

After a number of interlocutory applications, the matter was heard and the Court of Appeal dismissed the petition. That court declared the 4th and 5th respondents winners of the election. Dissatisfied, General Muhammadu Buhari, the appellant, has come to this court.

Issues for Determination:

  1. Whether the Court of Appeal was right when it held that the petitioner presented evidence on four States only.
  2. Whether on a proper evaluation of the evidence adduced in this petition, the petitioner was not entitled to judgment.
  3. On who does section 146(1) of the Electoral Act place the onus of proof of the effect of established substantial non-compliance with the provisions of the Act on the result of an election conducted under the Electoral Act 2006, the Petitioner or the Respondents?
  4. Whether the Court of Appeal properly placed the onus of proof of the effect of established substantial non­compliance with the provisions of the Electoral Act on the Petitioner.
  5. Whether the power of the President of the Court of Appeal under any section of the Nigerian Constitution including sections 248 and 285 extends to the power to issue Practice Directions to the court in its original jurisdiction under section 239(1) of the Constitution.
  6. Whether the court below had the competence to reverse itself on its ruling on 23/10/07 on the averments in the Petitioner’s pleadings.
  7. Whether the court below was right when on 19/11/07 it rejected the petitioner’s inspection witness depositions already filed before it.
  8. Whether the Court of Appeal was right when it failed to declare the depositions jointly filed by the 1 st and 2nd respondents and those jointly filed by the 4th and 5th Respondents respectively as incompetent despite being inapplicable to the proceeding.
  9. Whether the Court of Appeal was right in striking out 18 of 19 witness depositions filed with the petition after adopting the depositions unconditionally by order of court on 19/11/07.
  10. Whether the Court of Appeal was right when it assumed jurisdiction to inquire into the propriety of Exhibit EP2/34.”



Section 145(1) of the Electoral Act, 2006 provides for the grounds for questioning an election. By the subsection, an election may be questioned on any of the following grounds:

(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of (the) Act;

(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

By section 145(2), an act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of the Act shall not of its own be a ground for questioning the election.

A petitioner who files a petition under section 145( 1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the party alleging the grounds and he has a duty to prove the affirmative. He is the party who will lose if no evidence is given on the grounds.

If the petitioner does not prove his case under section 145(1) of the Act, the action fails.

Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption.

In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. See Omoboriowo v. Aiasin (1984) 1 SCNLR 108.

And that takes me to issues 3 and 4 first.

Both issues deal with the onus of proof in respect of section 146( 1) of the Electoral Act. Section 146(1) reads:

“An election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.”

In considering the section as it relates to the burden of proof, Fabiyi, JCA, in his lead judgment said at pages 2706 and 2707 of Volume 7 of the Record and I will quote him in some detail:

“It is incumbent on the Petitioner pursuant to the provisions of section 146 of the Electoral Act to establish that the non compliance established by him substantially affected the result of the election. This he has failed to do in the instant case.

It must be shown clearly by evidence that the non-compliance has affected the result of the election.

Election and its victory is like soccer and goals scored. The Petitioner must not only show substantial non compliance but also the figures, i.e. votes that the compliance attracted or omitted.

The elementary evidential burden of “the person asserting must prove” has not been derogated from by section 135(1).

The Petitioners must not only assert but must satisfy the court that the non compliance has so affected the election results to justify nullification”

It is clear from the above authorities that the onus of proof of the substantiality of the non compliance and the substantiality of the effect of the non compliance on the election resulf rests on the Petitioner.

The Petitioner has in the instant case established the substantiality of the non compliance with section 145(2) of the Electoral Act, but has failed to establish the substantiality of this non compliance on the result of the election. This issue is therefore resolved in favour of the respondents.”

If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not substantially affected, the petition must fail. In other words, Election Tribunal must, as a matter of law dismiss the petition, and that accords with section 146 (1) of the Electoral Act.”

For the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the Presidential election conducted in 2007. What I am saying is that there was no evidence before the Court of Appeal to dislodge section 146 of the Electoral Act.

In the sum the appeal fails and it is dismissed.

Accordingly, Umaru Yar’Adua and Goodluck Jonathan are the President and Vice President of the Federal Republic of Nigeria.