Buhari v. Obasanjo (2003)



Buhari v. Obasanjo (2003)

by PaulPipar.







⦿ Citation
(2003) LPELR-SC.133/2003
(2003) 17 NWLR (PT. 850) 587


This is challenging the eligibility of the 1st respondent to be a candidate for the presidential election. This is an appeal to an Interlocutory decision given by the Court of Appeal.
The appellant filed an appeal before the Nigerian Supreme Court to nullify the decision of the Court of Appeal stating that it erred when it held that the first two respondents – Obasanjo & Atiku – can continue in office as President and Vice President respectively even when the election is in question before the Court.
At the Court of Appeal, it prayed that the Court restrain the first two respondents from presenting themselves for the swearing-in ceremony to happen on 29th May, 2003.


  1. Whether the 1st and 2nd Respondents whose qualification, election and return as the President and Vice President of the Federal Republic of Nigeria was being challenged in a competent court can validly be sworn into office before the determination of the Appellants’ Petition before the lower court.

(2) Whether the Court of Appeal was right in holding that the Res will not be destroyed if the application is not granted.


Lead judgement delivered by S.M.A BELGORE, JSC.

The Nigerian Supreme Court held that since this appeal sought for an injunction, it therefore is an equitable matter and not Constitutional in nature.
The first issue was cleaned off as a mere academic claim, bacause what the appellants are seeking to put on a hold has already been concluded – the swearing-in, and hence it was dismissed.
It adviced the Appellant to wait for the substantial matter to be decided by the Court of appeal. It held that there was nothing wrong with the respondents presenting themselves for swearing in even though the question as to the validity of the respondents to conduct the election was still being tried in the Court of Appeal.
The matter that the appellant brought before this court to seek has already been concluded, and that is the prevention of the respondents from being sworn-in. They were sworn in on May 29th, 2003, this matter was filed on June 6th, 2003.

Available:  The Young Shall Grow Motors Limited v. Ambros O. Okonkwo & Anor. (2010)

The Court made reference to:
S. 138 of Electoral Act 2002, it is provided:

“S.138 (1) If the Electoral Tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Electoral Tribunal or the court, remain in office pending the determination of the appeal

(2) If the Electoral Tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Electoral Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”

Available:  Joshua Ogunleye v. Babatayo Oni (1990) - SC


The Constitution should never be read to say what it has not provided even though it should be liberally construed to giving meaning and effectiveness so as not to have embarrassing anomaly that can result in vacuum of any office or cause serious crisis in the polity. The Constitution, I must point out, is a general statement of how Nigerians wish to be governed and the real way of governing will be found in all the laws, body of laws, that comply with the Constitution. – BELGORE JSC, Buhari v. Obasanjo (2003)

Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority, they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have binding or weight on the case. – BELGORE JSC, Buhari v. Obasanjo (2003)

An interlocutory injunction was and is no more a remedy for an act which had already been carried out (see for example John Holt Nigeria Ltd. & Anor. v. Holts African Workers Union of Nigeria & Cameroons (1963) All NLR(Reprint). – Kutigi, JSC, Buhari v. Obasanjo (2003)

The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts. – Niki Tobi, JSC, Buhari v. Obasanjo (2003)

Available:  The Federal Republic of Nigeria v. George Osahon & Ors. (2006)

I have always said it that litigation is not a game of chess where the players try tricks at each other to manoeuvre to get victory. Litigation is rather a judicial process where all the cards must be placed on the table of the judicial process so that parties know in advance the case each has over the other. While the submission of counsel will be kept in his breast, the way the case will be handled, which include pleadings, documents and all other relevant papers should be within the reach of the adverse party, who should be free to call for them at the shortest notice. – Niki Tobi, JSC, Buhari v. Obasanjo (2003)

It is elementary law that courts of law, like nature, do not act in vain but for a purpose and the purpose must exist and be identifiable and identified. Courts of law do not embark on academic exercise because they are not academic institutions. – Niki Tobi, JSC, Buhari v. Obasanjo (2003)

The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality or out-moded or incomprehensible procedures and immerses itself in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on. – Pats-Acholonu, JSC, Buhari v. Obasanjo (2003)




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