Chief Jim Ifeanyichukwu Nwobodo V Chief Christian Chukwuma Onoh & Ors (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

At the election to the office of Governor of Anambra State held on 13th August 1983, the returning officer (hereinafter referred to as the fifth respondent) returned Chief Onoh (hereinafter referred to as the first respondent) as having been duly elected. Dissatisfied with the result of the poll, Chief Nwobodo (hereinafter referred to as the petitioner), who was one of the unsuccessful candidates at the election, filed an election petition in the High Court of Anambra State against the five respondents namely the first respondent and the second, third and fourth respondents who were the Chief Federal Electoral Officer for Anambra State, the Federal Electoral Commission and the Resident Electoral Commissioner respectively and the fifth respondent-complaining that the first respondent was not duly elected by majority of lawful votes at the elect ion but that he, the petitioner, had the highest votes and had not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State. He prayed that he ought to have been returned as duly elected. On the application of the petitioner during the proceedings the third and fourth respondents were struck out.

At the conclusion of the trial of the petition, the High Court by a majority of 3 to 2 of the judges that constituted the court gave judgment in favour of the petitioner and determined that he had been duly elected to the office. The minority dismissed the petition.

The first, second and fifth respondents were not satisfied with the decision of the High Court and consequently appealed to the Federal Court of Appeal which unanimously reversed the decision of the High Court and restored the return of the first respondent as being the duly elected candidate. The petitioner appealed to this Court against the judgment of the Federal Court of Appeal on 11 grounds of appeal. The appeal was canvassed on six main issues and I shall consider them seriatim.

Jurisdiction of the trial court: The issue on the jurisdiction arose from two orders for security for costs and substituted service made by Araka, C.J., sitting alone, before he empanelled five judges including himself that constituted the election court. Sections 127 (1) and 119 (3) of the Electoral Act 1982, hereinafter referred to as the Act, provide:

“127. (1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount filed by the Court and as directed by the Court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.”

“119. (3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.”

At the hearing of the petition objection was taken in limine that since the two orders had not been made by the election court, that court had no jurisdiction to entertain the petition. It was also contended that as the order for security had been on 17th August, 1983, which was the very day the petition was filed, but that the costs were not paid until on 18th August, 1983, there was a breach of section 127 (1) of the Act and so there was no valid petition before the election court. The election court overthe objection.

On appeal to the Federal Court of Appeal, the majority namely Nasir, P., Kazeem, Belgore and Aikawa JJ.C.A. were of the opinion that there was no valid order for security for costs and for substituted service and consequently there was no valid petition in the election court. They held that the petition ought to have been struck out on that ground.

I think, it is pertinent to set out the views expressed by the learned Justices on this issue. Belgore J.C.A. who delivered the lead judgment, after stating that security for costs is a condition precedent for the petition to be filed or to mature into a petition under section 127 (1) of the Act, continues:

“It is either the security is given first or it is given contemporaneously with the petition as the majority judges of the election court even held in the judgment. The learned Chief Judge, Araka in Obale v. Nnaowo (1972) 2 ECSLR 484 was not in doubt about this. Neither the Supreme Court of Nigeria in earlier cases of Emene v. Nkeruwen (1966) 1 All NLR 63, Ahmed v. Alhaji Haruna Kasim (1958) 3 FSC 51, and Ngoh v. Ndoke (1960) 5 FSC 90. There are cases that never went beyond High Courts but follow the same principle (see Ihenacho v. Mgbaraonye and 2 Ors (1960) 9 E. N. L. R 106; O.S.

Benson v. Allison (1955-56) W. R. N. L. R 50; and Ogbolumani v. Okobi and Ors 1959 W. N. L. R 11). No security was given and there was no petition before the court.”

In agreeing with the lead judgment, Nasir, P. had this to say:

“COMPETENCE OF ELECTION COURT