Chief Chukwuemeka Odumegwu Ojukwu V. Dr. Edwin Onwudiwe & Ors.(1984)
LawGlobal-Hub Lead Judgment Report
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.
- 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.
- 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.
- 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”
In my judgment, read on 18th November 1983, dismissing the appeal of Chief Ojukwu, I said that even if all the points raised by his counsel on the facts of the case had been accepted in his favour, I would still have dismissed his appeal as he still would have scored less than the respondent Onwudiwe at the election. It was therefore on the ground of facts that I allowed the appeal. Indeed this ground of facts was the only ground seriously canvassed before us in this appeal.
The Issue of Facts
The complaints of the appellant Chief Ojukwu are mainly in respect of the Onitsha North-East state constituency. They are contained in the particulars of error set out in ground 2 of the appellant’s grounds of appeal, as follows-
“(i) that ballot boxes were not brought to the collating centre as required by law;
(ii) that many returns from presiding officers showed they were in respect of polling booths not bearing FEDECO code numbers;
(iii) that other returns did not show the ballot boxes into which the alleged votes were cast;
(iv) that exhibit 3 the FEDECO control document was a genuine document which showed that FEDECO had 138 polling booths in the Onitsha north-east state constituency whereas results from 140 polling booths were submitted to the assistant returning officer;
(v) that the situation was such that the Resident Electoral Commissioner had to visit the collating centre with a new returning officer;
(vi) that the scene at the collating centre was rowdy and the atmosphere tense;
(vii) that there were fierce arguments between the Resident Electoral Commissioner on the one hand and agents and supporters of the 1st respondent herein on the other hand as confirmed by the said 1st respondent’s principal agent;
(viii) that the situation was such that the results could not be announced at the collating centre as required by law;
(ix) it is not only by cross-examination that the testimony of a witness can be contradicted as erroneously held by the court below. The evidence of a witness can effectively and disastrously be contradicted by producing a witness more credible than the witness sought to be contradicted; (x) the court below completely overlooked the obvious fact that evaluation of evidence by the court of first instance took 9 typed pages out of a judgment of 13 pages;
(xi) the court below further overlooked the fact that the evidence of the two N.S.O. officers on which it relied heavily and the evidence of the 1st respondent’s principle agent differed inter se as to the atmosphere at the collating centre.”
Mr. Anyamene submitted, in pursuance of these grounds of appeal, that there were officially 138 polling booths but the returning officer made use of two more illegal polling booths and that is, two more ballot boxes, which could contain 500 ballot papers each. Learned counsel said further that of all ballot boxes, only three contained code numbers which were known to FEDECO. Learned counsel then dealt with the evidence of the N.S.O. official Mr. S, who gave evidence of the argument that ensued between the Resident Federal Electoral Commissioner, Brigadier Obeya, and the NPP party agents, over the issue of 140 or 138 polling booths as the case may be, and also the evidence of Mr. Z, who gave evidence that nothing of any significance happened during the election.
For the respondent, Chief Williams submitted that the substantive matter in this case was what happened in the Onitsha North-East state constituency. The witnesses who gave evidence were FEDECO officials and they tendered documents to which the judgment of the Court of Appeal made references. Both the oral documentary evidence before the court, submitted learned Senior Advocate, made it impossible to come to the conclusion which the High Court arrived at.
Learned counsel then dealt with the evidence of the assistant returning officer, Mr. D.C. Ogbaku who was originally joined as the 6th respondent in the petition. The duty of the assistant returning officer started after 6 p.m. that is, after end of polling. Learned counsel then argued that there were 140 polling booths as per Ex. 16, which is the schedule of polling stations. Ex. 18, which is the distribution of ballot papers and boxes by senior presiding officers, also shows 140 ballot boxes. The supervisory presiding officer at the constituency also gave evidence of this.
Chief Williams next dealt with the complaint of the appellant as regards irregular code number. Eight polling stations are affected by this complaint and they are all covered by EX.23.
As regards the apparent conflict in the evidence of the two N.S.O. officials, Chief Williams referred us to their evidence and submitted that the two officials spoke of two different occasions. In reply, Mr. Anyamene dealt with mutilations on EX.23 (which comprises of eight ballot boxes) and Ex.19, which comprises of 42 ballot boxes.
To my mind, the issues in this appeal are very simple. From the evidence which was before the court there was nothing that could have been held to be so grave as to vitiate the election. Indeed, the High Court was clear about this and the best evidence of that is the fact that though the court found against the respondent Dr. Onwudiwe in regard to the Onitsha North-East state constituency, the findings of fact made by the learned trial Judge were limited to the two extra ballot boxes, mutilations on exhibit 23 and exhibit 19. And so the only issues of fact that the Court of Appeal or this court could look into are –
(1) whether the polling stations were 138 or 140;
(2) the position of the eight polling stations or ballot boxes in Ex.23; and
(3) the position of the 42 polling stations or ballot boxes in EX.19.
Of the 138 or 140 polling stations, as the case may be, only 1,000 ballot papers could ever possibly be involved. I will deal with this issue later. However, as regards exhibits 19 and 23, fifty ballot boxes are being questioned and even then, out of these fifty, Mr. Anyamene was able to spotlight, in his oral submissions, 4 in EX.23 and 4 in EX.19. Mr. Anyamene was asked during the course of these oral submissions in this court, to make specific reference to every booth or ballot box he complained of, and while Chief Williams was able to show in EX.23 that if a mistake had been made at all, in writing down the figures which Mr. Anyamene referred to as mutilations, the mistake had been recorded against and not in favour of the respondent, who had lost 119 votes by such mistake, Mr. Anyamene, as I have earlier said, made reference to only four claims in this exhibit wherein the figure –
(1) “42” was recorded for NPP which looks like “46”.
(2) “85” was recorded for NPP when what was first written looks like the same figure “85”;
(3) “229” recorded for NPP instead of an original figure that looks like “239”; and
(4) “90” recorded for NPP when even the 90 was also written in words.
There does not seem to be any complaint about the figures credited to the NPN candidate, that is, Mr. Anyamene’s client. To my mind, I think the complaint of the appellant in respect of Ex.23, is, with utmost respect, baseless and should be ignored.
The appellant’s complaint on EX.19 seems even to be less weighty. When it came to pinning learned counsel down to specific allegations, what did we have He made reference to only four polling stations and I intend to examine these four in detail.
(1) AN/21/21/E6)
AN/21/20G)
The appellant scored 46 votes while the respondent scored 106. There is no mutilation of figures at all when one examines the exhibits. The only error is in the addition of total votes cast. This is recorded as 154 instead of a total of 152. I think the complaint here lends no substance to the submission of learned counsel that the scores in this polling station should eo ipso be ignored.
(2) AN/21/A1/1
Again, the exhibit shows no mutilation of any sort. The only complaint is, also, in the addition of the total votes cast. They should amount to 104 and not 107 as recorded. I think what I have already said above in regard to the first item of complaint applies equally to this.
(3) AN/21/67/2
The complaint again here can only be in regard to a simple situation of the total votes cast which should read 148 and not 151 as recorded.
(4) Queen of the Niger where the totals read 103 instead of 100.
Now, it is clear that the only complaint in regard to exhibit 19 is the arithmetical error in the addition of the total votes cast and not as regards the scores of each candidate Certainly, when a party is reduced to such inconsequential complaint, it shows how completely weak his case is. I can find no merit whatsoever in all the complaints of the appellant and indeed this is sufficient to dismiss his appeal as I did for total lack of merit.
But what did the learned trial Judge find and how much did his finding help the case of the appellant The learned trial Judge held on Ex.19
“For instance, among the result sheets in Form EC8A tendered by 1st respondent numbering (42) and tendered collectively as Exh.19 I discovered as follows:
Ballot Boxes without code Numbers . …. ….. 10
Ballot Boxes with figure endings …. ….. 20
Ballot Boxes with letter endings …. ….. 3
Result sheets without polling booths nos …. ….. 12
These samplings from 42 results coming from 1st respondent speak volumes: I have no hesitation in holding that these polling booths and ballot boxes with these anomalies were false and were not the official Federal Electoral Commission ballot boxes or polling booths authorised by them. The votes cast at them or into them are not lawful and are invalid and of no use for determining the result of the poll in the entire Onitsha senatorial district”
and on Ex.23 he said –
“It is my finding that he refused to sign Form EC8A willingly because most of them were mutilated in favour of the 1st respondent as shown in the sampling of such Forms tendered as Exh.23 (consisting of 8 result sheets) which in each case, showed more votes in favour of 1st respondent than the petitioner among those mutilated. These are malpractices within the Electoral Act 1982 and gravely falsified the votes cast in the said North-East state constituency and completely altered the over all result in the entire senatorial district.”
Assuming the learned trial Judge is correct in his finding, the possible totality of all the complaints before him is as follows –
(1) On the extra two ballot boxes complained of, a maximum score of 1,000 had been wrongly recorded in favour of the respondent.
(2) EX.19: A total score of 7067 votes had been recorded from the 42 ballot boxes, not even the four shown by learned counsel Mr. Anyamene, in favour of the respondent therein.
(3) EX.23: A total score of 1,203 votes were recorded in favour of the respondent from the eight ballot boxes (again not even the four shown by Mr. Anyamene).
On all these, we could, on the extreme outside and that is, leaning even unreasonably, in favour of the appellant, take the unusual course of crediting him with all the scores recorded in his favour while excluding the scores recorded in favour of the respondent. Notwithstanding this, the respondent, Dr. Onwudiwe would still beat the appellant, Ojukwu, by a score of over 5,000 votes. A lot of effort had been made to introduce into this simple case of pure arithmetic a lot of fiction of thuggery, break-down of law and order and lack of free hand on the part of the FEDECO officials. With great respect, this is building into a case what has not been found by the trial court. The trial court saw the witnesses, heard all their evidence and the story of woe, yet he was able to reduce the real complaint to the three issues I have now dealt with. We are a court of appeal. It is not for us to make findings of fact for the Judge and it will be wrong and indeed sad for the Supreme Court to abandon its role of reviewing evidence and law to one of making fictitious findings which the court of first instance was wise enough to ignore.
The sum total of all this is that the appeal has no iota of merit for which reason I dismissed it on 18th November, 1983.
SOWEMIMO, C.J.N. (Presiding): This is another election petition from which the learned trial judge after dismissing the claims against the second to the sixth respondents declared the petitioner winner of the senatorial election as against the first respondent. As is usual in the past, the arguments addressed to this Court were on the basis of the case set out in the High Court. No reference was made to the decision of the Federal Court of Appeal, Enugu, which set aside the decision of the High Court, Nnewi.
I wish to remark that under section 213 of the Constitution as was then outstanding, appeals to the Supreme Court are from the decision of the Federal Court of Appeal. Nothing had been said against the decision of the Federal Court of Appeal, Enugu, which set aside the decision of the High Court. I am of the opinion that the decision of the Federal Court of Appeal is correct and should stand.
These are my reasons for deciding in favour of the first respondent who had been returned as duly elected for that senatorial district.
SC.113/1983
