Hon. Justice Titus Adewuyi Oyeyemi (Rtd) & Ors V. Hon. Timothy Owoeye & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the Judgment of the Court of Appeal Akure Judicial Division sitting in Akure delivered on 29th November, 2012 in appeal No. CA/AK/31M/2011. The Appellants had in the appeal before the Court of Appeal appealed against the Judgment of the Osun State High Court, Oshogbo Judicial Division sitting in Oshogbo in Suit No. HOS/M.70/2010 delivered by Hon. Justice S.O. Falola on 3rd December, 2010. The Claimant/Respondent in this appeal instituted the action at the High Court against the Defendant/Respondent to this appeal by way of Originating Summons claiming five declaratory reliefs. The Originating Summons, and the reliefs claimed are as follows:

ORIGINATING SUMMONS

“LET THE DEFENDANT within forty two days after the service of this summons on him inclusive of the day of such service cause an appearance to he entered for him to this summons which is issued upon the application of the claimant of Osun State House of Assembly quarters, Osogbo for the determination of the following questions:

1. Whether the screening of the Chairman and members of OSSIEC during the

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pendency of appeal in Suit No. HOS/M.41/2009 is not improper, incompetent, null and of no effect.

2. Whether the screening of the Chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is not an abuse of Court.
3. Whether taking into consideration the combined Order 11 Rules 1, 2, 4, and 5 of the Court of Appeal Rules, 2007, the notice of withdrawal dated the 27th day of March, 2010 automatically terminated the appeal filed by the Appellant in this case. (sic)
4. Whether the filing of a stay of execution of a Judgment by a party against whom the Judgment is given has not put the judgment in abeyance until the ruling on the application is delivered.
5. Whether an appeal properly filed at the High Court registry is for onward transmission to the Court of Appeal and could be properly terminated at the same High Court Registry by mere filing a notice of withdrawal of Appeal.

WHERE OF the plaintiff claims as follows:

1. A declaration that the screening of chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is improper, incompetent, null and void and of no effect. <br< p=””

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A declaration that the screening of the Chairman of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is an abuse of Court process.

3. A declaration that, taking into consideration the combine effects of Order 11 Rule 1, 2, 4 and 5 of the Court of Appeal Rules 2007, the notice of withdrawal of appeal dated the 27th day of March, 2010 cannot automatically terminated the appeal filed by the Appellant in this appeal. (sic)
4. A declaration that the filing of an application for stay of execution of judgment delivered on 25th day February, 2010 by the defendant against whom the judgment is given has put the judgment in abeyance until the ruling on the application for stay of judgment is delivered.
5. A declaration that an appeal properly filed at the High Court Registry is for onward transmission to the Court of Appeal and cannot be terminated before the same High Court by merely filing a notice of withdrawal of appeal.”SUMMARY OF FACTS

In the early part of March 2009, the Executive Governor of Osun State appointed the first to the sixth Appellants as Chairman. Secretary and Members respectively of the Osun State

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Independent Electoral Commission (OSSIEC). The list was transmitted to the Osun State House of Assembly (OSHA), who are the Defendants/Respondents, for confirmation.

On 24/3/2009, the Appellants appeared before the Osun State House of Assembly (the Defendants/Respondents) for screening for the constitutional purpose of confirmation of their appointments. The Appellants supplied their respective Curriculum vitae within a relatively short notice. Only two of the Appellants submitted their Credentials together with the Curriculum Vitae for screening and confirmation to Osun State House of Assembly. The Claimant/Respondent maintained that without the submission of Credentials by all the Appellants, the allied issue of Screening and Confirmation should not hold. That position was over-ruled by the majority and by majority votes of its members, the OSHA (the Defendants/Respondents) confirmed the appointments of the Appellants. The Governor proceeded to swear in the Appellants on April 3rd, 2009, as Chairman, Secretary and Members of OSSIEC respectively.