Position of the Law on the Dismissal of an Election Petition

INTRODUCTION:

This appeal borders on the propriety or otherwise of the dismissal of an Election Petition.

CASE TITLE: ADEIZA & ANOR v. INEC & ORS (2023) LPELR-60708(CA)

JUDGMENT DATE: 24TH JULY, 2023

PRACTICE AREA: ELECTION PETITION (DISMISSAL OF AN ELECTION PETITION)

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

FACTS:

This appeal is against the decision of the National and State Houses of Assembly Election Petition Tribunal, Kogi State.

The appellants filed an election petition against the return of the 3rd Respondent as duly elected in the House of Representatives election conducted on 25th February 2023, in respect of the Ajaokuta Federal Constituency. After the conduct of the pre-hearing by the Tribunal, the appellants were given five days to present their case. On the first of the five days, the appellants applied for an adjournment which was granted, and the Tribunal stated the Appellants had four days remaining to present their case and that if on the next date, they still failed to field their witnesses, the petition will be dismissed.

On the adjourned date, the appellants, their counsel, and their witnesses were absent, at which point the Tribunal dismissed the Petition for having been abandoned.

The Appellants were dissatisfied with the decision of the Tribunal, and they appealed the same.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

“1. Whether the lower Tribunal can raise an issue suo motu and determine same suo motu against a party before the Court without hearing address(es) from parties present before the Court?

2. Whether the lower Tribunal had denied the Appellants their right to a fair hearing of their petition when it dismissed same on the 1st of June, 2023 when the same Tribunal had allotted to the Appellant five days (adjournment) to prove their case?

3. Whether the lower Tribunal denied the Appellants’ the statutory fair hearing when it failed to issue and serve the Appellants or their counsels the statutory FORM TF 005 in compliance with the provisions of the extant Electoral Act 2022.?”

DECISION/HELD:

In conclusion, the appeal was adjudged meritorious and was allowed. The matter was remitted to the Tribunal for expeditious hearing on the merits, guided by the Pre-hearing Report and the remaining days allotted to the Appellants to present their case.

RATIOS:

• LEGISLATIONELECTION PETITION – PRE-HEARING SESSION – Duty of a Tribunal to issue a report after the pre-hearing session; the purpose of the same.
• COURT – RAISING ISSUE(S) SUO MOTU – Whether a Court can be said to raise an issue suo motu where the issue or matter of facts exists in the litigation.
• PRACTICE AND PROCEDURE – APPEARANCE/ENTERING APPEARANCE – Whether a party will be deemed to have made an appearance where a legal practitioner represents him.
• ELECTION PETITION – ELECTION PETITION PROCEEDINGS – When an election petition will/will not be deemed abandoned.
• ELECTION PETITION – DISMISSAL OF A PETITION – Whether a Tribunal can dismiss a petition where the petitioner fails to appear at its hearing; discretion of the Tribunal in such a situation.
• ELECTION PETITION – DISMISSAL OF A PETITION – Instance when the dismissal of an election petition will not be proper.