Chief (Dr.)ugwu Nwafor Ujam V. Chief Ken Nnamani & Ors (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

In the National Assembly Election conducted throughout Nigeria on 12/4/2003, the petitioner/appellant was a candidate and contested for the seat of the Senator in the Enugu East Senatorial District on the platform of the All Progressive Grand Alliance (APGA), The 1st respondent on the other hand who was also a candidate in the same election was sponsored by the Peoples Democratic Party (PDP), At the close of polls from the 6 local government Areas comprising the Enugu East Senatorial District of Enugu State of Nigeria, the 1st respondent was returned as the winner of the election.

The appellant who was not happy with the result of the election then proceeded to the National Assembly Election Tribunal Enugu on 12/5/03 and presented his Election Petition pleading in paragraphs 12 & 13 thereof as follows:

“12. Your petitioner contends that once the invalid and unlawful votes credited to the 1st respondent are removed and expunged from the overall votes awarded him petitioner’s votes contained in all the Forms EC 8A herein pleaded (and which will be tendered at the hearing) will show that the petitioner scored a majority lawful votes in the entire election and so ought to be returned as duly elected.

13 WHEREFORE YOUR PETITIONER prays that it may be determined that the said Chief Ken Nnamani of the PDP was not duly elected or returned and that his election was void and that Chief (Dr.) Ugwu Nwafor Ujam of the All Progressive Grand Alliance (APGA) was elected and ought to have been returned.”

Although in the petition as manifested in the relief above, the petitioner claimed to have won the election and therefore ought to have been returned as duly elected, the petitioner did not state the votes he scored in the election to have entitled him to the relief claimed. Further more the petitioner did not state anywhere in the petition the votes scored by the 1st respondent whom the petitioner alleged did not win the election or the votes scored by any of the candidates who contested the election along with him in the Enugu East Senatorial District on 12/4/2003.

The 1st respondent therefore on being served with the petition, filed a memorandum of conditional appearance on 4/6/2003 and without filing any reply to the petition, proceeded and filed a motion on notice on 11/6/03 challenging the competence of the petition and urged the Tribunal to strike it out on the grounds:

“1. Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, stipulates that an election petition must state the holding of the election, the scores of the candidates and the person returned as the winner of the election.

2.The petition is predicated on the ground that the Petitioner and not the 1st respondent secured majority of the lawful votes cast at the election.

3.The petitioner had failed to set out the scores obtained at the election by either the petitioner or any of the other candidate at the election.

4.The petitioner failed to join the Peoples Democratic Party (PDP) as a necessary party in spite of the very grievous allegations made against the party in paragraph 4(ix)(a) & (b) of the petition.”

The motion was supported by a 10 paragraph affidavit to which Form EC 8E dated 13/4/03 containing the result of the election was exhibited.

The appellant as petitioner not only filed a counter affidavit to oppose the motion but also filed another motion on notice on 17/6/03 urging the Tribunal to strike out the 1st respondent’s motion for being an abuse of process of the Tribunal. The two motions were accordingly heard together by the Tribunal which in its Ruling delivered on 24/6/03, held that the petition was fundamentally defective and accordingly struck it out. The relevant part of this Ruling reads:-

“The failure to join each of these presiding officers in Nkanu East, Nkanu West and Isi-Uzo LGAs against whose conduct in the election the petition complains is fatal to the petition as the reliefs sought in the petition revolve round their individual conducts.