Comrade Adams Aliyu Oshiomhole V. Charles Ehigie Airhiavbere & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the Judgment in respect of the appeal against the Ruling of the Governorship Election Tribunal holden at Benin City dated 27th September 2012.

The Appellant who was one of the Respondents at the lower tribunal had applied for the dismissal/striking out of the petition on diverse grounds:

In its Ruling, the Tribunal struck out paragraphs of the petition as well as paragraph 30 (1) and (2) of the petition.

Against the said Ruling, the Appellant appealed to this court as per his Notice of Appeal filed on 3/10/2012.

The Notice of Appeal contains one sole ground of appeal which reads (shorn of the particulars):

“The lower Tribunal erred in law in its failure to strike out and/or dismiss the entire petition having struck out Reliefs 30(i) and 30(ii) and paragraphs 12(iv), 13(i), 13(ii), 23, 24 and 25 of the Petition.”

After transmission of record of appeal to this court, the Appellant filed brief of argument on 15/10/2012. Each of the Respondents reacted by filing their respective Respondents’ brief of argument, the Appellant formulated one issue for determination:

“Whether having struck out paragraph 12(iv), 13(i), 13(ii), 23, 24, 25, 30(1) and 30(2) of the petition, the tribunal did not fall into grave error by not striking out or dismissing the entire petition, the remnants of it having become academic and vesting no jurisdiction on the tribunal to adjudicate any longer.”

Learned senior counsel for the Appellant, Chief Wole Olanipekun SAN submitted in his brief that the tribunal having struck out the reliefs excluding the one claiming costs of the petition, and relief being the life wire of an action Tribunal ought to have struck out or dismiss the petition. He relied on UZOKWU v. EZEANU II (1991) 6 NWLR (pt. 200) 784-785, CPC V. INEC (2011) 18 NWLR (Pt.1279) 493 at 501.

He added that the remaining paragraphs of the petition would not sustain the petition. He cited PRP V. INEC (2004) 9 NWLR (PT. 877) 24 at 52, PLATEAU STATE V. AG (FED) (2006) 3 NWLR (PT.967) 346 at 419, ODEDO V. INEC (2008) 17 NWLR (PT. 1117) pg 554 at 600.

Learned senior counsel contended further that there was no longer any live issue before the lower tribunal to adjudicate upon as the only relief remaining was just an ancillary relief. He submitted that when a suit was bereft or devoid of any live issue it could not vest any jurisdiction in any court and the normal consequence was for it to be dismissed or struck out. He cited AKEREDOLU V. AKINREMI (1986) 2 NWLR (PT. 25) 710 at 725. He finally urged the court to allow the appeal.

The 1st Respondent’s brief of argument was settled by Chief E.L. Akpofure SAN. Learned senior counsel also formulated one issue for determination to wit.

“Whether the lower Tribunal was right when it declined to accede to the Appellant’s request to strike out the 1st Respondent’s petition.”