Mr. William Ballantyne V. Hon. Essien Ekpenyong Ayi & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the decision of the National And state Assembly Election petition Tribunal sitting at calabar, cross River state contained in the Ruling delivered on 4th July, 2011.

The appellant, the 1st respondent and some other persons contested the election into the House of Representatives seat for calabar south, Akpabuyo and Bakassi Federal constituency organized by the 3rd respondent and held on 9th April, 2011. The 3rd respondent declared the 1st respondent as the winner of the election and the appellant who felt dissatisfied, challenged the result so declared by filing an Election Petition at the National And State House of Assembly Election Tribunal, Holden at calabar on 28th April, 2011.

The erection petition numbered as EPT/CR/NA/2/2011 was fired on 28th April, 2011 and duly served on the respondents, and in reaction thereto, the 1st respondent fired his Reply on 25th May 2011; the 4th respondent’s Reply was fired on 30th May 2011, while the 2nd and 3rd respondents filed their joint Reply on 17th June, 2011 but their applications for Tribunal’s leave for enlargement of time to file the Reply was refused. The petitioner (who is now called the appellant) filed Reply to the 1st respondent’s Reply on 27th May, 2011 and fired Reply to the 2nd and 3rd respondents, Reply on 20th June, 2011.

The 1st respondent had filed a motion on Notice on 5th June, 2011 for the following reliefs:

“(a) An Order striking out the witness statements of (1) ABC, DEF, JKL, MNO, TQR, STU, VWX, YZA, ABA, ABD, ABE, ABF, ABG, ABH, ABJ & ABK attached to the petition and listed in the petition.

(b) AN ORDER striking out paragraphs 20, 21, 40, 44, 42, 43, 45 & 46 of the petition.

(c) AN ORDER striking out witness statement of the petitioner.

The application was brought upon the following grounds:

“1. That the witnesses statements of all the witness save the petition are incompetent in that they failed to meet the mandatory provisions of section 90 (b) of the Evidence Act.

2. The witness statement of the petitioner is incompetent in that it failed to the provisions of section 90 (b) Evidence Act.
3. That paragraph 4 (5) a & b of the Schedule to the Electoral Act makes it mandatory to meet it’s provisions.
4. That the paragraphs being challenged in the petition raised matters or issues outside the prescribed jurisdictional powers of the Honourable Tribunal.
5. That the Federal High Court Calabar decision on these issues cannot be revisited by the Honourable Tribunal.”

In support of the motion on notice, the 1st respondent deposed to affidavit of 6 paragraphs, the salient paragraphs of which are 3, 4 and 5 as follows:

“3. That I have gone through the petition and noticed that only one witness has his name written, all other witnesses statement on oath did not state full name, trade or profession.

4. That the petitioner is also complaining against matters that occurred before the election was held on the 9th April, 2011.
5. That the petition itself is not being challenged in this motion but certain processes and paragraphs of the petition.

See pages 183-198 of the record of appeal for the motion on notice, the affidavit of Honourable (Pastor) Essien Ekpenyong Ayi, in its support and the written address of the applicant.

The appellant filed a Counter affidavit and a written address in opposing the motion (pages 199-209) while the (applicant) 1st respondent filed a Further Affidavit and his Reply to the appellant’s address.