Action Alliance V. Independent National Electoral Commission & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED A. DANJUMA, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Governorship Election Tribunal sitting in Ibadan in Petition No.EPT/GOV/24/2011 between Taiwo Ibiyemi Otegbeye, and 22 Others Vs. Independent National Commission and 25 Others delivered on 10th November, 2011.

The Ruling of the lower court is contained at pages 116 – 119 of the Record of Appeal.

The 1st and 2nd Petitioners i.e. Taiwo Ibiyemi Otegbeye and Alhaja Sikirat A. Abdulsallam together with one Segun Oyewole of the Accord Party had filed a Motion on Notice dated 7/7/2011 to withdraw their petition against the 2nd and 3rd Respondents only. The said 2nd and 3rd Respondents in the said petition and motion are Senator Isiaka Abiola Ajimobi; then the ACN Governorship candidate.

The 3rd Respondent is one Moses Adeyemo also of the ACN (He was the Deputy Governorship candidate). They are also the 2nd and 3rd Respondents in this appeal,

By the said Motion the Applicants had prayed for the withdrawal of the petition against the Respondents indicated and also for an order striking out the Applicants’ names as Petitioners upon withdrawal.

The said Motion was heard and determined; wherefore it was ordered as prayed.

See pages 40-41 of the Record of Appeal wherein at page 2 of the Ruling, the following appears-

“It is therefore ordered that the application for leave to withdraw their petition against the 2nd and 3rd Respondents in this suit/petition and also striking out the names of the 1st and 2nd Applicants is hereby granted. 1st and 2nd Applicants of this petition are hereby struck out while the petition against the 2nd and 3rd Respondents is also struck out”.

Having struck out the parties as prayed, the Honourable Tribunal, suo motu ordered that it be addressed on the fate of the petition, as to whether the said petition still subsisted in law and before the appropriate forum for trial as there was no longer the Governorship candidate and it’s Deputy in existence in the said petition to clothe it with the vires or jurisdiction to adjudicate upon as a Gubernatorial petition.

After a succinct address by the respective parties, a succinct Ruling contained at pages 43-44 of the Record was delivered striking out the entire petition on the ground that the Tribunal being a Governorship Tribunal lacked the jurisdiction to proceed in trial and also that it had no jurisdiction or power to transfer the petition to the appropriate Tribunal as the exclusivity of the jurisdiction of the respective Tribunals were clear cut and the power of transfer was not available under the applicable Federal High Court Civil Procedure Rules to be exercised by the said Tribunal.

On the 9th October, 2011 i.e. 3 months 2 days after the Ruling delivered on 7/7/2011, the Appellants who were Petitioners/Applicants as aforesaid, discovered the irregularity and defect in the withdrawal of the petition and decided to have a recoil after a meeting. See pages 7-11 of the record.

By an application dated 24/10/2011 and filed 27th October, 2011, the Appellants had prayed amongst other reliefs for the relisting of the said petition struck out.

See pages 2-19 of the record. The said application for relisting was heard and dismissed on 10th November, 2011.