Appellant was an elected member in the Bendel State House of Assembly and the defendant was the duly elected speaker of the said House of Assembly.

It is the Constitution pro¬vision that a House of Assembly shall sit for a period of not less than 181 days in a year and s.103 of the said Constitution provides that a member of the House of Assembly who absents himself, without just cause, from the meetings of the House for a period amounting to more than one-third of the total number of days during which the House meets, in any one year, shall vacate his seat.

Plaintiff was absent for 94 days out of the 182 days on which the House sat, thus the defendant wrote to the plaintiff, asking him to show just cause in writing to buttress each occasion of his absence from the house. The plaintiff failed to do so, thus the defendant wrote to him again informing him that his seat had been declared vacant and he was therefore no longer a member of the house.

Plaintiff commenced proceedings by originating summons in the Ben¬del State High Court claiming against the defendant, a declaration that the defend¬ant was not competent to declare his seat vacant.

The trial judge held that the seat of a member of the House of Assembly cannot be declared va¬cant by the Speaker, but only by the court or by the voluntary act of that person who is the member of the House of Assembly.

The Court of Appeal allowed the appeal AND set aside the judgment of the lower court.

An appeal to the Supreme Court was lodged.