Chief Allen C. Nwachukwu & Anor V. Chief Emeka Eneogwe & Ors (1999)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

In the build up to the local government elections held Nationwide on 5/12/98, one Chief Uche Nworu an All Nigeria Peoples Party (A.P.P.) stalwart from Umuagbai Ward 8 of Osisioma Ngwa Local Government Area in Abia State was killed by acid burns. This led to the burning down of the petitioner/appellant’s hotel including other buildings. In addition he was arrested on 31/2/98 which was two days away to the election for the chairmanship of Osisioma Ngwa Local Government which he contested on the platform of the Peoples Democratic Party (PDP). He came second with 6,025 votes while the 1st respondent who was the APP candidate was declared the winner of the election having polled 8.689 voles. The 1st petitioner/appellant challenged the return of the 1st respondent before the Abia State Local Government Council Election Tribunal in an election petition No. CHEP/AB/3/98 filed on 17/12/98.

The said petition was dismissed on 15/2/99. Being dissatisfied with the said judgment, the 1st petitioner/appellant lodged an appeal to this court in his notice of appeal dated 18/2/99 and filed on 22/2/99 containing five grounds of appeal from which he distilled four issues for determination as follows:-

“(i) Whether the death of Chief Uche Nworu of the APP and the subsequent arrest and detention of the 1st appellant as a prime suspect in his murder made it impossible for election held on 5/2/98 (sic 5/2/98) to be free and fair;

(ii) Whether the facts of Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 747 are on all fours with the facts in the instant case.

(iii) Whether the tribunal was right when it struck out significant paragraphs of the further particulars filed by the petitioner/appellants.

(iv) Whether on the facts of this case the refusal of the tribunal to nullify the elections can be supported.”

The first issue questions the atmosphere in which the December 5th, 1998 election for Chairman of the Osisioma Ngwa Local Government was held.

Learned counsel for the appellant is of the view that the election could not be said to be free and fair since one of the contestants was incapacitated by his arrest and detention. But learned counsel for the 1st and 2nd respondents has argued that the substantial findings made by the tribunal below have not been appealed against as they relate to ground 2 and instead of dealing with the issue of corrupt practices set out in paragraph 3(j) – (t) of the petition particularly the express pleading in paragraph 3(k), the appellants in their brief of argument seek to make an entirely different case namely that there was violence and the election ought to have been postponed.

The petitioner had pleaded the following facts in paragraphs 2(d). 3(j), (k) and (t) of the petition as follows:-

“2(d) The said elections were voided by non-compliance with the provisions of Decree No. 36 of 1998.

3(j) The elections for the chairmanship of Osisioma Ngwa Local Government Council of 5th December, 1998 was voided by corrupt practices of personation, treating, undue influence and bribery and by non-compliance with the provisions of Deeree No. 36, 1998 and rules made pursuant to it.

(k) On 3rd December, 1998 the 1st petitioner was arrested by the police on the instigation of the 1st respondent and other members of the APP such as Chief (Dr.) Chima Nwafor, Chief Mrs. Nkechi Nworgu and Mr. Nnakwu on the pretence (sic pretext) that the 1st petitioner masterminded the death of one Chief Uche Nworu by acidic (sic acid) bath. The 1st petitioner has been in detention since the 3rd day of December, 1998 and was deprived of the right to campaign and or vote for himself. The 1st respondent and the other party members after the arrest and detention of the 1st petitioner now carried out a campaign of terror and intimidation against the petitioners and PDP supporters. The campaign against the petitioners was that the 1st petitioner was no more in the race for the election having been arrested and put into police custody while the 1st petitioner’s supporters who tried to counter the campaigns were physically molested and threatened with death or grievous bodily harm. One Ugochukwu Ogumuo an official town crier used his gong to the knowledge of the 1st respondent to announce throughout the community on the night of 4th December, 1998 that the 1st petitioner had been disqualified from the elections for the murder of the said Uche Nworu and that the 1st petitioner was serving time in detention for the murder. The state of panic, fear, harassment, intimidation throughout the 3rd, 4th and 5th December, in the entire Osisioma Ngwa Local Government Area prevented very many supporter of the 1st petitioner from turning out to vote on 5/12/98 while many others who were able to reach the polling booths were so intimidated and harassed by policemen, APP party men and thugs, with the knowledge of the 1st respondent to vote in favour of the 1st respondent.

(t) The petitioners shall at the trial rely on all the forms issued by the 3rd respondent at the elections, copies of list of posting of ad hoc Staff, notice of which is hereby given to the 3rd respondent to produce the documents at the trial. The petitioners shall also at the trial rely on copies of protest letters written by Chief F. C. Obediah, PDP party Chairman in the Local Government written to the Electoral Officer Osisioma Ngwa Local Government Area and the 3rd respondent is hereby given notice to produce the original at the Trial.”