Chief Chukwuemeka Odumegwu Ojukwu V. Dr. Edwin Onwudiwe & Ors.(1984)

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ESO, J.S.C. 

The petition of Chief Chukwuemeka Odumegwu Ojukwu, who contested for the Onitsha senatorial seat and lost, was for both the nullification of the election and declaration of the petitioner – Ojukwu – as the duly elected senator for the district.

The petitioner had complained that the returning officer, who was the 5th respondent, and the assistant returning officer, the 6th respondent, failed to perform their duties, of collating or announcing the results of the election, properly. That portion of the complaint reads –

“3. The 5th respondent an officer of the 2nd respondent did not perform and/or was unlawfully prevented from performing his official function of properly collating and announcing the results of the said election for the Onitsha senatorial district by the 1st respondent and/or his agents, political supporters or political thugs, and/or the 2nd, 3rd and 4th respondents jointly and/or severally.

4. The 6th respondent as stated in paragraph 3 above also did not perform and/or was unlawfully prevented from performing his official function of properly collating the results of the said election at Onitsha N.E. state constituency by the 1st respondent and/or his agent, political supporters or political thugs, the 2nd, 3rd and 4th respondents jointly and/or severally.
5. There were only three candidates at the said senatorial election and the total documented results of the said senatorial election are in the custody and possession of the 2nd, 3rd and 4th respondents. And the results show that Your Petitioner was leading the other two candidates until the false and illegal figures not properly collated and resulting from the election at the said Onitsha N.E. constituency which was not properly and legally conducted in accordance with the provisions of the Electoral Act 1982, were unlawfully and/or wrongfully accepted by the 2nd, 3rd and 4th respondents although they were not acceptable to the 5th and 6th respondents who were severally threatened, intimidated and assaulted by the 1st respondent and/or his agents, political supporters or political thugs.
6. The 5th and 6th respondents made written reports respectively on the explosive break down of law and order and violence at the said Onitsha N.E. state constituency and especially at the collating centre of the Onitsha local government head office at Onitsha and these reports are now in the custody and possession of the 2nd, 3rd and 4th respondents and shall be founded upon and tendered at hearing of this petition.”

The petitioner also spoke of what he termed “total break down of law and order at very many polling booths at the constituency.” He said in his petition –

“In the morning of the said election day there were obvious cases of total break down of law and order at very many polling booths at the said Onitsha N.E. state constituency. The NPP political supporters and/or political thugs of the 1st respondent, in the presence of police officials, who are yet to be determined if they were all members of the Nigerian Police force or fake impersonators; chased away many polling agents of Your Petitioner from very many polling booths after beating them up. In short, illegal voting was rampant by the NPP political thugs in the absence of NPN polling agents and most of the results from the polling booths submitted by the presiding officers at the collating centres were not signed by the NPN agents or where they signed they were forced to do so and some signatures of alleged NPN polling agents were forged signatures.”

The learned trial Judge, Uyanna J, heard evidence, and having considered the case before him, declared void the votes cast for both parties in the Onitsha North- East senatorial district, the district which has been complained of. After the nullification the remaining figures showed that the petitioner won the election over the 1st respondent by a majority of 2,037. It is important to state here the reasons given by the learned trial Judge for the nullification of the election results in the Onitsha North- East constituency. He based his reasons on what he termed as ”the majority of votes cast at the said constituency” coming from “fictitious or non-existing polling booths and ballot boxes, not authorised by the Federal Electoral Commission.”

It is of significance, and it should be stated at this stage, that the election at the Onitsha North-East senatorial district which was declared void, showed the appellant as having scored 4,847 and the respondent as having scored 19,247. It is apparent therefore that the scores in that constituency were very important to this case and of great significance to the case of the appellant.

The 1st respondent, Dr. Edwin Onwudiwe, appealed against the decision of the High Court to the Federal Court of Appeal. The Federal Court of Appeal (Phil-Ebosie, Olatawura and Aikawa JJ.CA), hereinafter referred to as the Court of Appeal, in three separate judqments, concluded unanimously that the decision of the High Court was wrong. The court allowed the appeal of the appellant, Dr. Onwudiwe, and declared him the winner of the senatorial election.

Chief Ojukwu had, in consequence of the decision of the Court of Appeal, appealed to this court. Mr. A. N. Anyamene (SAN.), learned leading counsel representing him, relied upon four grounds of appeal one of which was a ground of facts. He also filed a brief wherein he stated the questions for determination. As those questions, stated by learned counsel, adequately cover all his grounds of appeal, I will set them down herein. They are

“(1) Is there any inconsistency in the judgment of the court of first instance such as to nullify the same as held by the court below

(2) Assuming there be any inconsistency (which is denied) did the dismissal of the petition as against the FEDECO and its officers necessarily imply in law that the irregularities and malpractices found by the trial court to have occurred in the Onitsha North-East state constituency were not proved as contended by the court below

(3) Did the addition of paragraphs 13(a), 13(b) and 13(c) to the election petition in the course of the proceedings in the court of trial offend any provisions of the Electoral Act so as to nullify the judgment of the court of first instance

(4) If the answers to the above three questions are in the negative was the judgment of the court below against the weight of evidence”