Mr. Eyo Nsa Ekpo V. Nkoyo Esu Toyo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Independent National Electoral Commission (3rd Respondent) and the Resident Electoral Commissioner (2nd Respondent) conducted elections into the House of Representatives for Calabar Municipality/Odukpani Federal Constituency in Cross River State on 9th April, 2011. Though other candidates contested the election they are not concerned with this appeal.

Mr. Eyo Nsa Ekpo of the Action congress of Nigeria (Petitioner/Appellant) polled 7,213 votes while Nkoyo Esu Toyo (1st Respondent) of the Peoples Democratic Party (4th Respondent) polled 23,298 votes and was returned as duly elected into the House of Representatives/Federal Constituency in question. Being aggrieved Mr. Eyo Nsa Ekpo presented a petition before the National and State Assembly Election Petition Tribunal sitting in Calabar, Cross-River State on 29-04-2011 on the following grounds:

GROUNDS OF PETITION

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. ”

The Petitioner sought the following reliefs:

“(a) A declaration that the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th 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 Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th April, 2011 is null and void.

(c) An order that a fresh election be conducted into Calabar Municipality and Odukpani Federal Constituency.

(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency

OR IN THE ALTERNTIVE

(a) A declaration that the petitioner scored the highest number of valid votes cast in election held on 9th April, 2011 in Calabar, Municipality and Odukpani Federal Constituency.

(b) A declaration that the petitioner was validly elected in election held on 9th April, 2011 in Calabar Municipality and Odukpani Federal Constituency.

(c) An order directing the 3rd Respondent to issue a Certificate of Return to the petitioner for the election held on 9th April, 2011 in Calabar Municipality and Odukpani Federal Constituency.

Only Nkoyo Esu Toyo (1st Respondent) filed a Reply petition to the petition traversing the averments upon which the petition was anchored. The 2nd to the 4th Respondents did not. The petitioner testified and called two witnesses. The 1st Respondent also testified. Learned counsel submitted written addresses and issues for determination. The Tribunal recognized two issues for determination namely, whether the petitioner had proved the allegation upon which the petition was founded and secondly, whether his right to fair hearing had been breached when the Tribunal struck out the depositions of the petitioners’ witnesses and disallowed the subpoenaed witnesses from testifying.