Ethelbert Nnanna Nze V. Dr. Gideon Nwaeze & Ors (1999)

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AKAAHS, J.C.A.

The race for the Chairmanship of Oguta Local Government Council of Imo State has been a ding-dong battle between the present appellant and the 1st Respondent since 5/12/98 when elections were conducted nationwide by the Independent National Electoral Commission (INEC) under the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998 for Chairman of Local Governments and Councillors representing various Wards. Besides the Appellant and the 1st Respondent who were sponsored by the PDP and APP respectively, the other candidates who contested the election were Francis Unyimadu of the UPP, Engr. Azuogu of MDJ and R.S. Okeke of A.D. At the end of the election, the 1st Respondent was credited with 11,824 votes to the Appellant’s 11,044 votes and INEC, the 2nd Respondent declared the 1st Respondent, Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-Elect of Oguta Local Government.

The appellant was dissatisfied with this result and he presented a Petition before the Local Government Election Tribunal of Imo Stale No. LGEP/IM/1/98.

Francis Unyimadu, the candidate of UPP also presented his Petition numbered LGEP/IM/47/98. The two petitions were consolidated and on 8/2/99 the Tribunal delivered its judgment in which INEC was ordered to conduct a fresh election in Oru Ward between the original contestants to determine the winner of the election.

Although the 1st Respondent appealed against the judgment in Appeal No. CA/PH/EP/50/99 the Notice of Appeal was held to be incompetent and the appeal was accordingly struck out. The bye-election was subsequently held on 20/3/99 and although the appellant had a simple majority of votes cast but he lacked the spread while the 1st Respondent who had the 2/4 votes cast in more than 2/3 of the Wards of the Local Government (i.e. that he had the spread) but lacked a simple majority.

It was this state of affairs that made the 2nd Respondent to organise a second election between the appellant and the 1st Respondent which took place on 10/4/99. The 1st Respondent was credited with 38,229 votes while the appellant had 12,183 votes. The 1st Respondent was declared the winner of the election, thus prompting the second petition No. LEGP/IM/CH/1/99 from whence this appeal has been brought against the ruling of the Tribunal striking out the petition based on the preliminary objection raised by learned counsel to the 1st Respondent on the

competency of the Petition. This second Petition which shall hereinafter be referred to simply as “the Petition” was filed on 23rd April, 1999 and the Reply of 1st Respondent wherein the Preliminary objection was raised, was dated and filed on 3rd May, 1999 and the Tribunal gave its ruling on 7th May, 1999 while the Notice of Appeal was filed on 10th May, 1999. The grounds on which the preliminary objection was based are:-

“(a) The Petition breached paragraph 48(1) of Schedule 5 of Decree No.36, 1998 in that Respondents against whom allegation were made were not sued in person as Respondents.

(b) That the Petition breached paragraph 5(4) of Schedule 5 of the Decree is (sic) that the name of the occupier was not stated in the Petition.

(c) That relief paragraph 13(a) is inconsistent with paragraph 13(c) of the petition ex nihilo nilil fit.

(d) That relief in paragraph 13 is not supported by averments in the petition as the Petitioner is not relying on an inconclusive election.

(e) That the Petitioner is not qualified to contest the said election having not complied with Section 11 (1)(f) of the Decree in that he did not resign from public service before the election.

(f) That the Petition did not state the result of the election as declared by 2nd Respondent.

(g) That the 7th to 11th Respondents are not juristic persons known to the Decree.