Engr. Sylvester Ugwuoke V. Alex Eze & Ors (1999)

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MUSA DATTIJO MUHAMMAD, J.C.A.

The Appellant contested the Election for the Igboeze South/Nsukka Federal House of Representatives seat. He did so against the Respondent. The Respondent was declared and returned the winner of the election which took place on 20th February 1999. Appellant felt aggrieved by Respondents return. Appellant accordingly filed a petition against the return at the Election petition Tribunal below.

There, the Respondent filed a preliminary objection praying the tribunal as follows;-

(a) That the proper parties to the petition are not formed and

(b) That the petitioner has not specified his right to present the petition.

The 2nd to 7th Respondents in the trial tribunal neither filed a memorandum of appearance nor reply to the Appellants Petition within the stipulated time. They sought, by a motion on notice dated 22nd of April, 1999 and filed on 23/4/99, for extention of time within which to reply to Appellants petition. When the case came up for trial on 23/4/99 the trial tribunal took the preliminary objection against the petition and in a considered ruling declared the petition incompetent and struck it out. The petitioner felt dissatisfied with the ruling of the tribunal and brought this appeal.

Appellant’s Notice of Appeal contains three grounds hereunder reproduced with their particulars:

Grounds of Appeal:

1. The National Assembly Election Tribunal erred in law in holding that the petition of the appellant was defective for not disclosing the right of the petitioner to present the petition when?

Particulars of error

(a) section 78(1) (b) of the National Assembly (Basic Constitutional and Transitional provisions) Decree No. 5 of 1999 (hereinafter referred to as the decree) stipulates that a person who was a candidate at the election in question may present an election petition.

(b) The appellant stated in paragraph 2 of his petition that he was a candidate at the said election.

(c) The first respondent in paragraph 2 of his reply had expressly admitted this averment.

(d) Paragraph 5(7) of Schedule5 to the decree expressly provided the form or precedent (known as TF002 in the sixth schedule) for the presentation of an election petition and further stipulated that the said form or one substantially like it shall be sufficient for the purposes of the said paragraph 5 of schedule 5.

The petitioner followed the said form in presenting his petition.