Chief Jim Ifenyichukwu Nwobodo V. Chief Christian Chukwuma Onoh & Ors (1983)

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SOWEMIMO, J.S.C. 

This appeal was brought to this Court from the Federal Court of Appeal, Enugu. The judgment of the Federal Court of Appeal, given unanimously, set aside the judgment given by a High Court of Anambra State sitting as a panel of five judges to decide on an election petition.

The election petition was filed by appellant before us, Chief Jim Nwobodo. He was the unsuccessful candidate in the gubernatorial election for the office of Governor of Anambra State. The 1st respondent before us, Chief C. Christian Onoh, was declared by FEDECO as the successful candidate in the same election. It is against this declaration that the petitioner has filed this petition. The other respondents before us are (a) the Chief Federal Electoral Officer for Anambra State, one

Mr. Ejeh, (b) the Resident Federal Electoral Commissioner, one Brigadier Ignatius N. Obeya (Rtd.), and (c) the Returning Officer, one Mr. E. N. Mbonu.

For the purpose of this judgment the appellant will be referred to as the petitioner, Chief J. I. Nwobodo and the 1st respondent as Chief C. C. Onoh.

This judgment will deal generally with my opinion on each item argued before us but fuller and considered reasonings and opinions on all of them will be given later.

I hold that the Chief Judge, was competent to order security and order substituted service on the combined effect of sections 119(3) of the Electoral Act and sections 237 and 238 of the Constitution.

It is my opinion that although the payment of security was not made, in compliance with sections 147(3) of the Electoral Act 1982, I do not consider such noncompliance as fatal to the hearing of the petition.

The petitioner based his complaints on paragraphs 5(a), (b) and (f) of his petition. Further and better particulars were later filed during the course of the proceedings.

This was done after the respondents had filed their replies and issues had already been joined on the pleadings. It is my opinion that the filing of further and better particulars do not affect the issues already joined in the pleadings.

It is my opinion, and I so hold, that all the allegations complained of are crimes, and although, under Electoral Act 1982, election petition is a peculiar type of civil proceedings the proof of a crime, requisite or burden of where alleged, is that provided under section 137(1) of the Evidence Act, that is proof beyond reasonable doubt. The onus of proof is therefore on the petitioner and this has not been discharged. Having so decided I hold at this stage that the petitioner has not proved all his relevant complaints beyond all reasonable doubt against any of the respondents.

On the issue of the admissibility of elections returns in election petitions, which I regard as a peculiar civil proceedings, I will prefer to consider all the documents in this case as relevant, whether primary, secondary or duplicate originals, for a determination of this matter on the merits.

In conclusion I will dismiss the appeal and it is hereby ordered to be dismissed.

I will affirm the judgment of the Federal Court of Appeal, Enugu, and set aside, the judgment of the High Court of Anambra State, which upheld this petition as having succeeded. I will, therefore, award costs of N300.00 to each respondents against the appellant.