Hon. Mkpanam Obo-bassey Ekpo & Anor. V. Ngim Okpo Kanu & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A, (Delivering the Leading Judgment)

This appeal is against the decision of the National and State House of Assembly Election Petition Tribunal, Holden at Calabar, contained in the ruling delivered on 2nd August, 2011 dismissing Election Petition No. EPT/CR/SA/1/2011 filed by the Appellants.

The 1st Appellant was a candidate at the election into the House of Assembly seat for Biase State Constituency conducted by the on 26th April, 2011. The 2nd Appellant was the political party that sponsored the 1st Appellant for the election. At the conclusion of the election, the 3rd Respondent declared the 1st Respondent as the win4er and the duly returned candidate.

The Appellants who were aggrieved by the declaration of the 1st Respondent as the winner of the election filed the Election Petition No. EPT/CR/SA/1/2011 on 15th May, 2011 on the grounds stated in paragraphs 38, 39 and 40 thereof as follows:

“38. The election was invalid by reason of non-compliance with the provisions of Electoral Act, 2010 (as amended).

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

By the motion on notice filed on 12th July, 2011, the 1st Respondent moved the Tribunal for order striking out the petitioner’s reply to the 2nd and 3rd Respondents’ reply and the accompanying witness depositions of Mr. Ogettee Ekpo filed on 20th June, 2011, striking out all the petitioners’ witnesses, depositions on oath including that of the 1st Petitioner; and striking out the petition in its entirety. The reliefs were sought upon the grounds stated in the motion on notice which are:

“(i) The petitioners’ reply to the 2nd and 3rd Respondents’ reply and the witness deposition of Mr. Ogettee Ekpo offends the provisions of paragraph 16(1)(a) of First Schedule to the Electoral Act’ 2010 (as amended).

(ii) The petition is instituted and brought in a non-existent Tribunal and also the written statements of the petitioners’ witnesses are headed in none existent Tribunal and not in the court or Tribunal as required by section 90(a) of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 2004. Also on 11th July, 2011 the 2nd and 3rd Respondents prayed the Tribunal to strike out the 13 witnesses’ statement on oath as attached to the petition, and thus incompetent.”

(iii) All the Petitioners’ witnesses’ depositions defend the provisions of Section 90(b) of the Evidence Act, 2004 and Section 13 of the Oaths Act, Cap. 01, Laws of the Federation of Nigeria, 2004 accordingly the petition is bereft of evidence or written statements to support or accompany it as required by paragraph 4(5)(b) of the First Schedule to the Electoral Act 2010 (as amended).

(iv) The petition is thus incompetence (sic) and the Honourable Tribunal lacks jurisdiction to entertain it.”

After hearing the parties, the Tribunal in the ruling of 2/8/2011 held that the petition was incompetent and consequently struck out the petition.

The Appellants felt aggrieved by the decision of the Tribunal and lodged an appeal against the ruling on 15th August, 2011, upon three grounds of appeal. The Appellants, in prosecution of the appeal filed the Appellants, Brief of Argument on 29th August, 2011, the 1st Respondent filed his Brief of Argument on 5th September, 2011, while the 2nd and 3rd Respondents, Brief was filed on 9th September, 2011.

The Appellants formulated two issues for determination as follows:

(a) Whether having regard to the timeliness constitutionally provided for the disposal of election petitions, the striking out of the Appellants’ petition by the Trial Tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).