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CaseLaw

Rev. Hyde Onuaguluchi V. Ndu & Ors (2001) CLR 3(h) (SC)

Judgement delivered on March 2nd 2001

Brief

  • Section 246 of 1999 Constitution
  • Section 81(1) National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999
  • Section 81(3) National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999 – Interpretation of
  • Section 81(2) National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999 – Interpretation of
  • Section 68 of the 1999 Constitution.
  • Section 312(2) of the 1999 Constitution.
  • Section 36 of the 1999 Constitution.
  • Section 16 of the Court of Appeal Act
  • Section 246(3) of the 1999 Constitution
  • Section 215 of the 1979 Constitution (now Section 235 of the 1999 Constitution)

Facts

The appellant contested election to the Senate as a candidate of the All Peoples Party (APP) in Enugu West Senatorial District in February 1999. The other candidates were Mr. Ben Collins Ndu, a candidate of the People’s Democratic Party (PDP) now 1st respondent, and one Chief Mike Ugwu, a candidate of the Alliance for Democracy (AD). On 20th February 1999, the appellant was duly returned by the Independent National Electoral Commission (INEC), 3rd respondent, as elected. The 1st respondent then petitioned to the National Assembly Election Tribunal, Enugu Division (the Tribunal), against the election. On 21 May 1999, the petition was dismissed by the Tribunal. The 1st respondent appealed from that decision, and on 24 June 1999, the Court of Appeal, Enugu Division, set aside the judgment of the Tribunal and nullified the senatorial election held in the constituency of Enugu West Senatorial District. It ordered that fresh election be conducted in that constituency without delay by the 2nd and 3rd respondents.

In reaction, the appellant filed an Originating Summons on 5 July, 1999 to the Federal High Court, Abuja praying for an order that having been sworn in as a Senator under the 1999 Constitution, his seat could not be made vacant by "any act or judgment except in accordance with the provisions of section 68 and section 312(2) of the said Constitution." The Federal High Court eventually declined jurisdiction to hear the action and dismissed it on 28th October, 1999.

That same day, the appellant filed an application at the Court of Appeal, Abuja Division, seeking an order to set aside the judgment of the Court of Appeal, Enugu Division, given on 24 June, 1999 on the ground that it was a nullity. That application was subsequently transferred to the Enugu Division of the Court of Appeal. The Court of Appeal heard the application and on 30 May, 2000, dismissed it. I think Olagunju, JCA, one of the three learned Justices who heard the application, specifically touched on the point that the application in the circumstances it was brought was incompetent. The learned Justice also reasoned and came to the conclusion that the judgment of the Court of Appeal delivered on 24 June, 1999 had no element of any kind that would render it a nullity.

From that decision of 30 May, 2000, is an appeal by the appellant to this Court.

Issues

3.01. Whether the Court of Appeal (in its ruling dated 30th May, 2000 in motion...

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