Mr. Asuquo Ekpo Ada & Anor V. Wilson E. Ekpenyong & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

Mr. Asuquo Ekpo Ada (1st Appellant) of Nigeria (2nd Appellant) and Mr. Wilson E. Ekpenyong (1st Respondent) of the Peoples Democratic Party (4th Respondent) were contestants at the elections conducted on the 26th day of April, 2011 by the Resident Electoral Commissioner, Cross River State (2nd Respondent) and the Independent National Electoral Commission (3rd Respondent) into the House of Assembly, Cross River State to represent Odukpani State Constituency. Other contestants included Kingsley Ndem Prince Ndemita; Joseph Bassey Eno; Victor Okon Erim, Bassey Effiong Usuh and Ekpenyong A. Bassey.

At the close of the polls the 2nd and 3rd Respondents declared the 1st Respondent as duly elected having polled 7,213 votes while the 1st Petitioner polled 1,135 votes. Wilson Ekpenyong secured 391 votes as against 594 votes polled by Kingsley Ndem Prince Ndemita. Joseph Bassey Eno had 203 votes. Aggrieved with the declaration the 1st and 2nd appellants presented a joint petition before the Election Tribunal holden at Calabar, Cross River State on 18-05-2011. The grounds for presenting the petition were set out in the petition as follows:

“37. The election was invalid by reason of non-compliance with the Provisions of the Electoral Act, 2010 as Amended.

38. The 1st Respondent was at the time of the election not qualified to contest the election.
39. The petitioner scored the highest number of lawful votes cast but the 1st Respondent was declared winner. ”

The petitioners sought the following reliefs from the Tribunal:

“WHEREUPON THE PETITIONER prays as follows:

(a) A declaration that the election into the House of Assembly for Odukpani State Constituency held on 26th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act, 2011 as Amended.

(b) A declaration that the election into the House of Assembly of Odukpani State Constituency held on 26th April, 2011 is null aid void.

(c) An order that a fresh election be conducted into Odukpani State Constituency.

(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Assembly for Odukpani State Constituency.”

OR IN THE ALTERNATIVE

“(a) A declaration that the petitioner scored the highest number of valid votes cast in election held on 26th April, 2011 in Odukpani State Constituency

(b) A declaration that the petitioner was validly elected in election held on 26th April in Odukpani State Constituency.

(c) An order directing the 3rd Respondent to issue a Certificate of Return to the petitioner for the election held on 26th April, 2011 in Odukpani Constituency.”