Chief Ken Nnamani V. Chief Uche Nnaji & Ors (1999)

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TOBI, J.C.A.

The appellant was the petitioner in the National Assembly Election Tribunal. He was a candidate in the senatorial election for the Enugu East Constituency held on 20th February, 1999.

He was declared a loser. He filed an election petition. The 1st respondent entered a memorandum of conditional appearance. Before the petition could be heard, the 1st respondent filed a motion praying for “an order dismissing, striking out or setting aside the above petition for being incurably bad and incompetent”, The motion was based on three grounds:-

(a) Absence of locus standi

(b) Lack/want of jurisdiction of the tribunal to hear and/or determine the petition.

(c) Absence of mandatory parties/persons. Similar motions was filed by 2nd to 9th respondents. The motion were filed on 1st April, 1999.

The appellant had earlier filed a motion to amend his petition by adding more respondents and giving further particulars of malpractices of the 1st respondent as shown in the amended petition exhibited to the affidavit in support of (the) motion and marked Exhibit A”. The motion dated 22nd March. 1999 was filed on the same day.

All the three motions came up on 9th April, 1999. Following an argument on which motion or motions to take first, the learned National Assembly Election Tribunal decided to take the motion on jurisdiction. After hearing arguments from counsel, the tribunal granted the motion and struck out the petition. The learned Chairman of the tribunal, Edet J. said:-

“On the whole we allow this motion on the grounds that the petitioner did not specify his right or the capacity as required by law and on a further ground that he failed to join necessary parties to the petition.”

Dissatisfied with the ruling, the appellant has come to this court. As usual, briefs were filed and exchanged. The 1st respondent filed a cross-appeal to which the appellant responded. The appellant filed the following two issues for determination:-

“(a) Was the tribunal right in law in holding that the appellant as petitioner did not specify his right to bring the petition as stipulated in the relevant Decree No.5 of 1999?

(b) Was the tribunal correct in law and in fact in holding that the petition was vitiated by non-joinder and necessary parties?” The 1st respondent/cross-appellant adopted the above issues and formulated the following additional issue for determination.

“Whether the resignation of the 1st respondent/cross-appellant from his party and upon which platform he contested and won the election did not operate to render the seat for Enugu East Senatorial District vacant’?”

On issue No. 1, learned Senior Advocate for the appellant, Mr. A. N. Anyamene, referred the court to section 78(1) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999 on the persons having a right to bring an election petition, paragraph 5(1) of Schedule 5 to the Decree which provides for what an election petition shall contain and paragraph 5(7) of Schedule 5 which relates to Form TF002. Learned Senior Advocate pointed out that in the case of Chief Egolum v. General Olusegun Obasanjo CA/A/EPPR/13/99 decided on 22nd March, 1999, relied upon by the tribunal, the petitioner was not a candidate. He referred the court to the contribution of Oguntade, J.C.A., and submitted as follows:-