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.”
Quite understandably, the 1st petitioner could not lead evidence on the corrupt practices of personation, treating, undue influence and bribery or the nature of the campaign of terror and intimidation allegedly carried out by the 1st respondent and other party members against the petitioners and PDP supporters since the tribunal had made an order directing the petitioners to furnish further and better particulars in respect of the allegations contained in paragraphs 3(i)-(t) of the petition but they were unable to so comply. In a ruling on the issue the tribunal had stated as follows:-
“A detailed perusal of the further particulars furnished shows that the demand for further particulars has not been met, that is to say details of the names and addresses of the 1st respondent’s supporters and party men who carried out the campaign against the 1st petitioner while he was in detention for a murder case have not been furnished. If their names and addresses are not furnished it would be difficult to accept the evidence of any witness not identifying particular persons who carried out the campaign complained of.”
Furnishing of particulars to a pleading is meant to eliminate the element of surprise being sprung on the opposite party to a case. It also enables the party to adequately prepare his defence of cross-examination of a witness. Learned counsel for the petitioners/appellants did not want to disclose the names and addresses of the people who allegedly carried out the intimidation of the 1st petitioner and his supporters for fear of reprisals. This is what he stated in paragraph 9(c) of the further particulars filed by the petitioners pursuant to the order made by the tribunal on 21/1/99:- .
“The names and addresses required in paragraphs 3, 4, 5, 6, 7, 8. 9, 10 and 11 are impossible to provide at this time on account of the fact that the 1st petitioner is still being held in custody and party supporters are unwilling or afraid to come forward with such particulars – such unwillingness being an aftermath of the unprecedented violence in the Osisioma Ngwa Local Government Council two days to the elections PDP supporters still fear that reprisals are still possible. Several members had their property burnt on 3/12/98.”
In my view, the case of the petitioners/appellants would have been iron cast if the said particulars had been supplied. A witness who is not ready to withstand threats in furtherance of truth will hardly command any credibility in whatever he says. The foundation upon which the petitioners wanted to build their case was very weak indeed.
The view expressed by Aniagolu, J.S.C. (as he then was) in Ojukwu v. Onwudiwe & Ors. (1984) 1 SCNLR 247; (1984) Vol. 15 NSCC 172 at 200 that:
“Free and fair election cannot … tolerate thuggery or violence of any kind corrupt practice, impersonation, treating, undue influence, intimidation …”
is not without a qualification. For the learned Justice of the Supreme Court went further to opine that:
“Once an election is found substantially (italics mine) not to be free and the electorate, either by violence or intimidation, have not been allowed freely to cast their votes, the election, where such has occurred, ought to, and must be nullified and a fresh one conducted.”
Any allegations made in each case must be established by credible evidence.
In the instant case, the facts which were established were:-
“(1) The 1st petitioner was arrested on 3/12/98 following the death of Chief Uche Nworu who was an APP stalwart.
(2) His arrest and detention prevented him from voting in the local government election, which held on 5/12/98.
(3) On 4/12/98 Chief F. C. Obediah, the PDP Chairman Osisioma Ngwa Local Government Area wrote to the Electoral Officer Osisioma Ngwa LGA asking for the postponement of the election scheduled for 5/12/98 (Exhibit 15).
(4) Posters were found urging people not to vote for the 1st petitioner/appellant alleging that he had been disqualified for his role in the murder of Uche Nworu (Exhibits 12 and 13).”
In Exhibit 15, it was reported that there was violence in Ward 7 (Uratta Ward).
The tribunal found that witnesses Nos. 3, 4, 5, 7 and 8 who gave evidence for the petitioner did so in general terms without giving any particulars. Their evidence could not have been otherwise since particulars were asked for in the pleadings but none were supplied.
I therefore agree with the tribunal in its findings now being complained against that their testimonies were vague and showed no nexus to connect the 1st and 2nd respondents to their stories.
The 1st petitioner/appellant could not be said to have been arrested on a trump up charge. Someone died and the 1st petitioner/appellant was suspected to have had a hand in the death. The fact that the 1st petitioner/appellant was campaigning to be elected as Chairman of the Local Government did not give him immunity from the criminal process which was invoked. Until the case is tried or the police have been given adequate time to conduct their investigation, it is difficult at this stage for anyone to say whether the 1st petitioner/appellant is guilty or not. Inspite of the election which was barely two days away, the police had a right to arrest anybody against whom they had reasonable suspicion to link with the commission of the offence. The violence reported even by the PDP Chairman was limited to one ward in the Local Government. The violence was not so widespread to warrant a postponement of the election. I therefore hold that the election held on 5/12/98 for the chairmanship of Osisioma Ngwa Local Government was free and fair. I therefore resolve issues Nos. (i), (ii) and (iii), (iv) in favour of the respondents.
On issue No. (ii), the facts in this case are similar with the ones in Oyegun v. Igbinedion (1992) 2 NWLR (Pt. 226) 747. In Oyegun’s case supra it was the Chief Priest who made the announcement about the Oba’s curse being on anyone who did not vote for the respondent/appellant: whereas in paragraph 3(k) of the petition, the petitioner alleged that one Ugochukwu Ogumuo an official town crier used his gong to the knowledge of the 1st respondent to announce to the community on the night of 4th December, 1998 that the 1st petitioner had been disqualified from the elections for the murder of Uche Nworu. There is no evidence whatsoever that it was at the instance of the 1st respondent that the said Ugochukwu Ogomuo tried to prevail on the electorate not to vote for the petitioner/appellant. The tribunal was right when it found that “there is no evidence linking the 1st and 2nd respondents with the announcements made by word of mouth and through loud speakers prior to and on the day (of) election at the polling booths exhorting voters not to vote for A.P.P.”
On the whole I find that the issues raised in this appeal have not been made out. I accordingly dismiss the appeal and affirm the decision of the tribunal which upheld the election and return of the 1st respondent as the Chairman of Osisioma Local Government Council in the election held on 5/12/99.
I award N1,500 as costs to each of the respondents against the appellants.
Other Citations: (1999)LCN/0633(CA)