Cosmos C. Chukwu V. M.O.B. Igwe & Ors (1988)

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OMOSUN, J.C.A.

This is an appeal by the petitioner against the judgment and orders of PATS-ACHOLONU, J., sitting at the Mbano/Etiti High Court which judgment was delivered on 22nd February, 1988.

The appellant had filed an election petition in the High Court, Mbano Etiti in Suit No.HME/1/88 claiming as follows:

“Whereof your petitioner prays that it may be determined that the said M.O.B. Igwe was not duly elected/returned and that the said Cosmos C. Chukwu (appellant) was duly elected and ought to have been returned.”

The grounds upon which the prayer is based are stated in paragraph 3 of the petition. They are as follows:

(a) that the first respondent was not duly elected by a majority of lawful votes at the election and/or

(b) that the petitioner was validly nominated but was unlawfully excluded from the election (in that the 2nd and 3rd respondents) refused to publish the score/result of the petitioner’s election.

The 1st respondent filed a reply to the petition. The 2nd and 3rd respondents did not enter appearance and did not contest the petition. The case proceeded to trial and on the 22nd February, 1988, the petition was dismissed after a full hearing. The appellant is dissatisfied with the decision and now appeals to this Court.

In broad outline these are the facts. The appellant was a candidate for the Local Government Elections held throughout the country on 12th December, 1987. He sought to contest the election in OKATA WARD in the Etiti Local Government Area of Imo State. The 1st respondent was a candidate in the same ward. He was returned as duly elected for the Okata Ward.

The appellant’s case was that he was validly nominated and issued with Ex “B” – certificate of valid nomination by 2nd respondent. Then his tribulations started. His name did not appear in the list of candidates for election to the councillorship of Okata Ward. No reason was given for the non inclusion. However, the 2nd respondent allowed him to contest the election on 12th December, 1987. He had earlier protested to the State Electoral Commission, Owerri against the omission of his name from the list of candidates.

He sued the Commission too but withdrew the suit on 10th December, 1987.

At the conclusion of the polls he scored 1362 votes and 1st respondent scored 688 votes. Yet 1st respondent was declared duly elected.

The 1st respondent’s case is this: He admitted that the petitioner was a candidate at the Local Government Elections held on 12th December, 1987 for Okata Ward. Appellant ceased to be a candidate when he was disqualified for not being ordinarily resident in the Okata Ward for a period of not less than 12 months prior to the date of the election. The appellant lives at 52 Odion Road, Warri, his place of business. He pays his income tax at Warri.

Both the appellant and the respondent were candidates for the said election but when the appellant was disqualified, he was the only qualified candidate for the Okata Ward and so he was returned unopposed. The respondent mentioned that he was duly elected by a majority of lawful votes cast at the election because the votes cast for a disqualified candidate do not count for any purpose.