Applications in Election Petition

• Pages: 1-85

VOL. 2 (PT. I)

4.

APPLICATIONS IN ELECTION PETITION

(1) APPLICATION FOR STRIKING OUT PETITION

1. Application to strike out petition.

“Learned appellants’ counsel strenuously submitted in his brief that since the P.D.P.

campaigned for, sponsored and funded the candidature of the appellants in the election

complained of and it was the name and the symbol of the party that was used in the

ballot paper on which the candidates were voted for at the election, both the party

and the candidates contested the election and must be joined as respondents once

the election is being challenged. It is also submitted in the brief that P.D.P. participated

in the election through its agents appointed under section 36(1) of the Act, and that

the word “person” in relation to the last category of respondents in section 133(2) of

the Act includes a body corporate and artificial person like the P.D.P. Learned

Counsel also pointed out in the brief that the petition contained some serious allegations

against the P.D.P. in relation to the election and therefore it was not right in law to

call or lead any evidence on any of them without making the P.D.P. a party to the

petition. He finally submitted that having participated in the conduct of the election

and in view of the grievous allegations of misconduct made against it in the petition,

the P.D.P. becomes a necessary party in law and should have been joined as a

respondent to the petition. And having now failed to join it as such, within the time

prescribed by the Act, the whole petition is incompetent and should be struck out.

But I am not in agreement with the learned counsel that merely because certain

allegations are made in the petition against the P.D.P, it is a necessary party and

should be joined in the petition as a respondent without the law saying so. In the final

analysis, I find that the P.D.P. as a party which sponsored the appellants to victory

at the April 19, 2003 election does not qualify as necessary party to the petition and

cannot be joined as a respondent by virtue of section 133(2) or any other provisions

of the Act. The answer to issue 1 is therefore in the negative.” Per Kalgo, J.S.C. in

Buhari & Ors. v. Obasanjo & Ors. (2007) 1 E.P.R. 112 131 - 133.

2. Application to strike out the petition and proceed to do substantial justice.

“An application for extension of time within which to file appellant’s statement of

defence is a deliberate effort to regularises the default in the late filing of the statement

of defence. After all, the whole purpose of Rules of Court is to ensure that the

affairs of the Court are carried out in an orderly fashion with reasonable degree of

certainty that prescribed acts have been duly complied with by the parties in the

interest of justice. Obviously, interest of justice will frown on the parties and the

Court being enslaved to rules which are intended to promote justice; they should not,

as it were, make round-about-turns and constitute themselves engines that would

Applications for striking out petition Paras. 1-2

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impede the promotion of justice.” Per Achike, J.S.C. in F.S.B. v. Imana Ltd. (2000)

7 S.C.N.J. 65 at 79.

3. Brief of argument need not be considered where notice of appeal is

struck out.

“I do not think there is any need for me to consider the 2nd arm of the objection as

it deals with the competence of the brief of argument filed by the appellant. There

has to be appeal first before there can be a brief. All the ground of appeal have been

found to be incompetent. They were all struck out. Consequently upon that, the

notice of appeal was struck out and there is no appeal. There is nothing for me to

consider as a brief whether competent or incompetent.” Per Mukhtar, J.C.A. in

Khalil v. Yar’Adua (2003) 16 N.W.L.R. (Pt. 847) 446 at 480.

4. Effect of striking out offending paragraphs of a petition.

“In this appeal the election Tribunal agreed with the appellant that certain paragraphs

of the petition contained allegations against the conduct of certain persons at the

election who were not made parties to the election and consequently struck out the

offending paragraphs. The appellant is contending that the whole petition ought to

have been struck out. It is now trite that offending paragraphs of a petition can be

struck out without the action affecting the whole petition particularly where the

surviving paragraphs can sustain the petition. That being the case, where the case of

action survives the striking out of the paragraphs of the petition as in this case, the

petition ought to go for a full trial as ordered by the lower Court. I am of the firm

view that the lower Court is right in so holding.” Per Onnoghen, J.C.A. in Ajibola v.

Ajadi & Ors. (2004) 14 N.W.L.R. (Pt. 892) 14 at 42.

5. Effect of striking out order.

“It is pertinent for me at this stage to say that an order of striking out of a matter

gives an opportunity to the plaintiff/complainant/petitioner, etc as the case may be, to

have a second bite on the cherry. This is why it is more advantageous than a dismissal

order which forecloses all the gates to further litigation on the same subject matter.

See Okpala v. Ibeme (1989) 2 N.W.L.R. (Pt. 102) 208 at 223. A striking order

keeps the claim alive. It is like a non-suit order which decided nothing as regards the

matter in dispute but merely gets rid of the pending action leaving the plaintiff at

liberty to begin de novo, either in the same or a subsequent suit.” Per I.T. Muhammad,

J.C.A. in A.N.P.P. v. R.O.A.S.S.D. (2005) 6 N.W.L.R. (Pt. 920) 140 at 175.

6. Effect where part of statement of claim is struck out.

“Such vague paragraphs are liable to be struck-out See Arobu v. Aiyeleru (1993) 3

N.W.L.R. (Pt. 280) 126. The same case is also authority for a Court or Tribunal

where a substantial part of a plaintiff’s pleadings have been struck out to consider

whether any substituting pleading can sustain the cause of action. If the Court finds

Paras. 2-6 VOL. 2 PT. I APPLICATIONS IN ELECTION PETITION

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that the remainder of the pleadings is insufficient to sustain the cause of action, the

action should be dismissed.” Per Oduyemi, J.C.A. in Uzodinma v. Udenwa (2004)

1 N.W.L.R. (Pt. 854) 303 at 345.

7. Effect of striking out offending paragraphs of a petition.

“In this appeal the election Tribunal agreed with the appellant that certain paragraphs

of the petition contained allegations against the conduct of certain persons at the

election who were not made parties to the election and consequently struck out the

offending paragraphs. The appellant is contending that the whole petition ought to

have been struck out. It is now trite that offending paragraphs of a petition can be

struck our without the action affecting the whole petition particularly where the

surviving paragraph can sustain the petition. That being the case, where the cause

of action survives the striking out of the paragraphs of the petition as in this case, the

petition ought to go for a full trial as ordered by the lower Court is right in so holding.

Consequently I too dismiss the appeal as lacking in merit and abide by the

consequential orders contained in the lead judgment of my learned brother,

MIKA’ILU, J.C.A. including the order as to cost.” Per Onnoghen, J.C.A. in Ajibola

v. Ajadi (2004) 14 N.W.L.R. (Pt. 892) 14 at 42.

8. Effect where party is struck out as party to an action.

“The consequence of the compliance against a party whose name is struck out is

that he is no longer a party as his exclusion would not affect the party who brought

him adversely particularly when that party consents to this removal from the suit

either by act of commission or doing nothing i.e. by omission. It would mean too that

he has no case to answer as his presence is not considered necessary for final

determination of the case. The cross-appeal fails and is dismissed.” Per Pats-Acholonu,

J.S.C. in Obasanjo v. Yusuf (2004) 9 N.W.L.R. (Pt. 877) 144 at 225 - 226.

9. Effect where part of statement of claim is struck out.

“The same case is also authority for a Court or Tribunal where a substantial part of

a plaintiff’s pleadings have been struck out to consider whether any subsisting pleading

can sustain the cause of action. If the Court finds that the remainder of the pleadings

is insufficient to sustain the case of action, the action should be dismissed.” Per

Oduyemi, J.C.A. in Uzodinma v. Udenwa (2004) 1 N.W.L.R. (Pt. 854) 303 at 345.

10. Power of Court of Appeal to strike out invalid notice of appeal.

“Order 3 rule 2(7) of the Court of Appeal Rules, the Court has power to strike out an

invalid notice of appeal when an appeal is not competent or for any other sufficient

reason. The notice of appeal hereby struck out.” Per Mukhtar, J.C.A. in Khalil v.

Yar’Adua (2003) 16 N.W.L.R. (Pt. 847) 446 at 480.

Applications for striking out petition Paras. 6-10