Ekpenyong & Anor. V. Duke & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the decision of National Assembly/Governorship/Legislative Houses Election Tribunal, (hereinafter called the Tribunal) sitting at Calabar delivered in petition No. EPT/HA/C/4/2007, on 1/12/2007.

The Tribunal had dismissed the petition of the appellants challenging the return of the 1st respondent as the member representing the Calabar South 1, State Constituency in the Cross River State House of Assembly in the election that took place on Saturday, 14/4/2007, for failure of the appellants to join necessary parties to the petition.

The State House of Assembly election was conducted nation wide on 14/4/07. The 1st respondent who had won the primaries on the Peoples Democratic Party (PDP) was nominated to contest the election into the Calabar South 1, State House of Assembly. The 1st appellant contested under the All Nigeria Peoples Party (ANPP). The Action Congress (AC), the National Democratic Party (NDP); and the Peoples Progressive Alliance also sponsored their respective candidates for the said election.

The state of the result of the elections as released by the 3rd and 4th respondents was as follows:

1. Anthonia Nneka Oniel – AC = 564
2. Francis Edet Ekpenyong – ANPP = 598
3. Victor Eyo Harrison – NDP = 137
4. Hon. Orok Otu Duke – PDP = 24,818
5. Francis Asuquo Cole – PPA = 281

At the conclusion of the election, the 3rd respondent declared the 1st respondent as duly elected and returned with 24,818 votes. Aggrieved by the result of the election, the appellants filed a petition at the Tribunal. The Tribunal after hearing the petition entered judgment in favour of the 1st respondent and dismissed the petition.

Dissatisfied with the decision of the Tribunal, the appellants appealed to this Court on 4 grounds. The appellants in their brief of argument dated 4/2/08 and filed the same date distilled 2 issues for determination. The issues are:

“(i) Whether the appellants discharged the evidential burden of proof placed upon them in proof other allegations of malpractices against the respondents in the petition; and

(ii) Whether the non-joinder of necessary parties was a live issue before the trial court.”

The 1st respondent in his brief dated 16/2/08 and filed on 18/2/08 identified one issue for determination and is as follows:

“1. Whether, on the facts and circumstances the petition, their Lordships of the Election Petition Tribunal were right in:

i. Entertaining the 1st respondent’s objection challenging the competence of the petition and thus the jurisdiction of the Tribunal to hear and entertain the petition; and

ii. Their interpretation and application of the provision of section 144(2) of the Electoral Act, 2006?”

The 1st respondent also filed a notice of preliminary objection dated the 15/2/08 and filed on 18/2/08.