People Democratic Party & Ors V. Chief (Engr.) Adebayo Dayo & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA B. DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment)

This is a Ruling on the motions on notice filed and dated 19/03/13 and 28/02/13 respectively by the 3rd and 4th appellants. The reliefs sought are identical and are as follows:-

(1) AN ORDER striking out the Notice of withdrawal filed purportedly on behalf of all the Appellants in this Appeal, same having been filed without the due authorisation and consent of the 3rd Appellant.

(2) AN FOR SUCH FURTHER Order or orders as this Honourable court may deem fit to make in the circumstance.”

The grounds for the application to strike out the notice of withdrawal as endorsed on the motion Papers are:

1. The Notice of withdrawal was filed purportedly on behalf of all the Appellants including the 3rd Appellant/Applicant herein.
2. The 3rd Appellant/Applicant did not authorize or consent on the filing of the Notice of withdrawal.
3. The 3rd Appellant/Applicant did not at any time instruct Counsel to file notice to withdraw his pending Appeal.
4. The Notice of Withdrawal is consequently an abuse of judicial process.”

The same grounds were raised in respect of the 4th Appellants.

The appeal has its genesis in an originating summons filed on 29th of March, 2012 before the Federal High court, Lagos, with Suit No.FHC/L/SC/347/12 by (1). Chief (Eng.) Adebayo Dayo, (2).Alhaji Semiu Sodipo (for themselves and on behalf of the Ogun State Executive Committee of the Peoples Democratic Party) and against (1). Peoples Democratic Party (PDP), (2). Alhaji Bamanga Tukur, (3). Prince Olagunsoye Oyinlola, (4). Bode Mustapha.

An Affidavit of Amos Maisamari, Male, of Legal counsel, deposed to on the 19th day of February, 2013, to which is annexed an Exhibit supports the application. A further affidavit was also deposed to by Amos Maisamari, male, of Legal Counsel on 19th and 28th February, 2013.

A further affidavit was also deposed to by Amos Maisamari, male, of Legal Counsel on 2nd day of March, 2013.

In opposing the application, the 1st and 2nd Appellants filed a counter-affidavit on the 6th of March, 2013, deposed to by Frank Egbon of learned counsel to the 1st and 2nd Appellants.

The Respondents filed no process in the application,; though they were active participants in opposition of the application to strike out the notice of withdrawal.

In this Ruling, the 3rd and 4th Appellants will be referred to simply as the Applicants, the 1s and 2nd Appellants as Appellants while the Respondents remain as such.

It is the submission of learned counsel for the Applicants that they were individual parties in the suit which led to this appeal and that they neither instructed nor gave their consent for the withdrawal of the appeal filed. It is therefore the respective contention of the Applicants that the notice of withdrawal of the appeal be struck out. In the alternative, they each seek the order of this court striking out the names of the 1st and 2nd Appellants from the appeal.

The reason is that the said Appellants cannot compel the Applicants to withdraw the appeal nor can the Applicants compel the Appellants to proceed with the appeal. It is further the case of the Applicants that it is too late in the day for the Applicants to withdraw the appeal under the provisions of order 11 Rules 1-4 of the Rules of the Court of Appeal Rules of 2011 because the appeal had been called up for hearing.