Olukayode Oluyemo B. & Anor. V. Mrs. Akindahunsi Titilayo & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.,

This is an appeal against the decision of the Election Petitions Tribunal, Ado-Ekiti Panel II in Suit No EKS/EPT/REP/27/2007 delivered on the 12th day of June, 2008 in which the petition was struck out for want of prosecution.

The facts of the case can be discerned from the record of appeal and the brief of the respective parties as follows: The Appellants contested for an election on the 21st day of April, 2007 and vied for a seat in the House of Representative Election for Ekiti South Federal Constituency 1 in Ekiti State, but that the 1st and 2nd Respondents were declared winner by the 3rd -8th

Respondents and this prompted the appellants to file a petition at the National Assembly Election Petition Tribunal holden at Ado-Ekiti challenging the declaration of the 1st and 2nd Respondents as winners. After calling some witnesses before the 1st Election Tribunal, another Election Tribunal panel was set up and this is referred to as Panel II.

The case of the Appellants was that one of the petitions that was reassigned to the new panel was his. The Appellants herein felt aggrieved and wrote a petition to the President of Court of Appeal that they do not want the new panel i.e Panel II to hear their petition because they could not get their witnesses again. The Honourable President of the Court of Appeal replied and responded that Panel II will hear the petition of the Appellants against the Respondents.

There should be no dispute on this, as it is only the President Court of Appeal that has the power and jurisdiction to set up an Election Petition Tribunal and such power can neither be challenged nor queried.

Thereafter, issues were settled by both the Appellants and Respondents and the petition was set down for hearing and definite hearing on different dates.

On all the dates the case was set down for hearing, appellants counsel came up with different applications and excuses which forced the tribunal to adjourn hearing to another date.

The ruling refusing the stay of proceedings was appealed against, then they asked the Tribunal for adjournment and stay of proceedings to enable this Court determine the Appellants’ appeal.

Their application for stay of proceeding was struck out and when the petition was slated for definite hearing on June 12, 2008, the Appellants could not produce any of their witnesses and the petition was subsequently struck out for want of prosecution. The Appellants were dissatisfied with this decision and thus appealed to this Court vide a Notice of Appeal dated 27th day of June, 2008 containing four grounds of appeal. The grounds of appeal are stated below:-

GROUND ONE

The Lower Court Tribunal erred in law by dismissing appellants/petitioner’s application for stay of proceedings and thus refused to stay proceedings in the petition despite their knowledge of the pendency of an application for stay of proceeding at the Court of Appeal Ilorin Judicial Division on the same subject matter.

PARTICULARS OF ERROR

(i) The Lower Tribunal was aware of the pendency of an application for stay of proceedings pending at the Court of Appeal, Ilorin.