Dr. Michael Enyong & Anor V. Hon. Emmanuel Etim Ekpeyong & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the National Assembly Election Tribunal holden at Uyo, Akwa Ibom State, hereinafter referred to as the election tribunal. The said ruling was delivered on 28th June, 2011 wherein the election tribunal struck out the petition filed by the appellants on the ground inter alia that the 1st appellant was not a candidate at the election held on 9th April, 2011 and so lacked the requisite locus standi to present the petition.

Both appellants herein, were the petitioners before the election tribunal. Briefly put, the relevant facts of the case as gleaned from the record of appeal are as follows. It was pleaded in the petition that the 1st appellant, Dr. Michael Enyong was nominated and sponsored as a candidate by the 2nd appellant, Peoples Democratic Party (PDP) for the 9th April, 2011 general elections into the office/membership of the House of Representatives of the Federal Republic of Nigeria, representing Uyo Federal Constituency. The election was organized, and conducted by the 3rd respondent herein. When the result was announced, the 1st respondent who was the candidate of the 2nd respondent was declared as the winner of the said election by the 3rd respondent.

It is to be noted that before then, there was a tussle between two persons, viz, one Hon. Ekere Afia and the 1st appellant herein, with regard to who was the accredited or authentic candidate, nominated and sponsored by the 2nd appellant for the said election. Along the line, Hon. Ekere Afia who claimed that he won the primary conducted by the 2nd appellant herein was upstaged. He challenged the decision of the 2nd appellant in this regard and instituted suit No.FHC/UY/CS/11/11 in the Federal High Court, Uyo Judicial Division.

On 25th February, 2011 the said Federal High Court delivered its judgment. It ordered and declared the plaintiff thereat, Hon Ekere Afia as “the duly nominated candidate” of the 2nd appellant herein, “for the Uyo Federal Constituency, Akwa Ibom State for the 2011 general election.” It is noteworthy, that while the 1st appellant was not a party to the said suit at the Federal High Court, Uyo, both the 2nd appellant and 3rd respondent herein were made parties thereto.

Thus, upon the declaration of the 1st respondent herein as the winner of the said election, the appellants filed the aforedescribed election petition, seeking inter alia for the nullification of the election of 1st respondent with an alternative prayer that the 1st appellant should be declared, “the elected, candidate having scored the highest number of valid votes cast at the election.” Before the election tribunal, the 1st respondent filed his notice of preliminary objection to the petition together with his reply on 20th May, 2011. Also, the 3rd respondent herein filed theirs on 26th June, 2011. For the 1st respondent; the grounds of objection are:

“1. The petition has not complied with the mandatory provisions of the Electoral Act 2011 to wit paragraph 4, 5(b) of the first schedule to the Electoral Act as No Written Statements on Oath of the witnesses are attached.

2. The 1st Petitioner lacks the requisite Locus Standi to present this petition not being a candidate at the election in line with Section 137 of the Electoral Act by virtue of the judgment of the Federal High Court in suit No. FHC/UY/CS/11/11 delivered on 25/2/2011.
3. The said judgment above mentioned declared the Plaintiff in that case Hon. Ekere Afia as the duly nominated candidate of the 1st Defendant (PDP) for the Uyo Federal Constituency, Akwa Ibom State for the 2011 General Elections.”

On 23rd June, 2011 the election tribunal heard the preliminary objections raised by the 1st and 3rd respondents herein on the oral submissions and written addresses filed by the respective learned counsel for the parties in respect of both notices of preliminary objection. The election tribunal delivered its said ruling on 28th June, 2011 and at pages 243 -244 of the record of appeal, held as follows:

“We have Seriously considered the submissions of learned counsel to the 1st Respondent and learned counsel to the 3rd Respondent informed this Tribunal that he had no objection to this preliminary objection and that he has filed a notice of Preliminary objection equally on the competence of the Petition. On the issue of competence of the Petition, we are of the view that the Petition is incompetent for the failure to attach the witness statement so as to accompany the Petition in accordance with paragraph 4, 5(b) as it ought not to have been accepted for filling by the Secretary. For this ground alone this Petition can be struck out. This ground is meritorious and as it renders this Petition incompetent. On the issue of locus standi of the 1st petitioner, we are equally satisfied that the judgment of the Federal High Court, Uyo delivered on the 25th of February, 2011 when the election in contention was conducted on the 9th of April, 2011 has sealed the fate of the petitioner. It deprived him of the locus standi to present the petition before this Tribunal.

In view of the foregoing, this Petition ought to be struck out for being incompetent and is hereby struck out. However, we have noted and taken the argument of counsel to the 3rd Respondent on his Notice of Preliminary objection filled on the 26th of June 2011, we do no find it necessary to write a ruling on same as it is on all fours with the one filed and argued by the 1st Respondent and struck out by the tribunal in this same Petition.”

Being dissatisfied with the aforesaid ruling of the election tribunal, the appellants filed their joint notice of appeal on 18th July, 2011 containing four grounds of appeal. Parties duly filed and exchanged their respective briefs of argument. In the appellants’ brief of argument, prepared by Ime Umanah Esq. and filed on 5th August, 2011 three issues were formulated for determination of this appeal as follows:

(1) Whether in the circumstances of this case, the appellant’s right to fair hearing had been breached.

(2) whether the appellants complied with the mandatory provisions of the Electoral Act in presenting their petition at the tribunal.

(3) Whether the 1st appellant lacked the requisite locus standi to present the petition at the tribunal.