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.
(ii) Despite that the Lower Tribunal proceeded with the trial of the petition by asking the petitioners to proceed with the trial of the petition.
(iii) The Lower Tribunal refused all entreaties to adjourn the trial of the petition.
GROUND TWO
The learned Justices of the lower Tribunal transgressed in law by striking out appellant’s petition during the pendency of an application for stay of proceedings pending the Court of Appeal, Ilorin.
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.
(ii) Despite that the Lower Tribunal proceeded with the trial of the petition by asking the petitioners to proceed with the trial of the petition.
(iii) The lower Tribunal refused all entreaties to adjourn the trial of the petition.
GROUND THREE
The Learned justices of the Lower Tribunal erred in law by invoking the provision of paragraph 5(3) of the Election Petition and Practice Direction amended to strike out the petition.
PARTICULARS OF ERROR
(i) The provision of paragraph 5(3) of the Practice Direction does not cover a situation when an application for adjournment was sought.
(ii) The section only relates to the absence of the Petitioner when the Respondent appeared when a petition properly comes up for hearing.
GROUND FOUR
The Learned Justices of the Lower Tribunal erred in law by their refusal to adjourn the trial of the petition having been aware of the pendency of the application for stay of proceeding before the Court of Appeal.
PARTICULARS OF ERROR
(i) Adjournment of proceedings is at the discretion of the Court.
(ii) Its grant or refusal is an exercise of discretion which must be done judicially and judiciously and not on sentimental considerations as done by the Lower Tribunal; neither must it be predicted on a wrong principle of law as done by the Lower Tribunal.
In compliance with the rules of this Court, the 1st and 2nd Appellants and the 1st and 2nd Respondents respectively and duly filed and exchanged their briefs of arguments. The 3rd – 8th Respondents vide a Motion on Notice seeking for extension of time within which to file their brief of argument and deeming same as properly being filed was granted on 27/01/09 and their brief dated 3/12/08 and filed 18/12/08 was deemed filed and served on other parties, and same was adopted by the parties herein.
Chief A. A. Adeniyi settled the brief of the 1st and 2nd Appellants which was dated 15/8/08 and filed on 25/8/08. Oso Adetunji on behalf of the 1st and 2nd Appellants urged the Court to allow the appeal while the Respondents counsel, Biodun Fashakin Esq and Maureen Arinze (Mrs.) in their written briefs urged the Court to dismiss the appeal.
Distilled from the said grounds of appeal for determination by this Court are five issues by the Appellants and they are set out in this brief of argument as follows:
“1. Whether the Learned Justice of the Election Tribunal were right in dismissing Petitioners/Appellants’ Application for stay of proceeding and refusing the stay of proceedings in the petition despite their knowledge of the pendency of an application for stay of proceedings at the Court of Appeal, Ilorin Judicial Division on the same subject matter. This relates to the Ground One.
ii. Whether the Learned Justice of the Election Petitions Tribunal were right in striking out appellants petitions during the pendency of an application for stay of proceedings before the given a hearing date. This relates to Ground Two.
iii. Whether the decision in Nigeria of Arab Bank Limited -vs- Conex Limited (1996) 6 NWLR (Pt. 608) is still valid and good law. This relates to Ground Two.
iv. Whether the Learned Justice of the Election Petitions Tribunal were right by invoking the provisions paragraphs 5(3) of the Election Petition and Practice Direction 2007 (as amended) to strike out the petition. This relates to Ground Three.
v. Whether the learned Justice of the Election Petitions Tribunal were right in not granting an adjournment having been aware of the application for stay of proceedings before the Court of Appeal, Ilorin Judicial Division. This relates to Ground Four.
On their part, 1st and 2nd Respondents raised 2 issues for determination of this appeal, as set out in their brief of argument these are as follows:
i. Whether the striking out of the Appellants Petition by the Election Petition Tribunal, Ado-Ekiti was not proper.
ii. Whether paragraph 5(3) of the Practice Direction was properly applied by the Tribunal when it reused application for adjournment.
And the 3rd – 8th Respondents have the following issues distilled
a. Whether Ground one of the Notice and Grounds of Appeal of the Appellants in this Appeal is competent and same ought not to be struck out?
b. Whether in all the circumstance of this case, the Appellants constitutional right to fair hearing was breached by reason of the lower Tribunal’s refusal to exercise its discretions in favour of the Appellants.”
I shall consider this appeal on the five issues formulated by the 1st and 2nd Appellants counsel and argued under three heads as it is encompassing all the issues raised by all the parties to this suit.
ISSUES 1, 2, 3
The Summary of the first three issues and as argued by the 1st and 2nd Appellants counsel, Oso Adeniyi, is whether the election Tribunal should not have stopped proceeding in view of stay of proceedings in a Higher Court (Court of Appeal) and that the refusal has infringed on his constitutional right.
Oso Adeniyi, Counsel to the 1st and 2nd Appellants submits that he informed the Election Tribunal that he has filed an application for stay of proceedings at the Court of Appeal and that the Tribunal should automatically stop proceedings, but that the lower court struck out the application. This prompted the Appellants to file an application for stay of proceeding pending another notice and ground of appeal filed at the Court of Appeal. Referring to the case of NIGERIA PRISON -VS- ADEKANYE (1999) 10 NWLR (PT. 623) 400 AT 425 that where an application for stay of proceeding is pending the lower court should stop hearing.
He further argued that non-granting of Appellants’ application for adjournment by the Tribunal infringes on the right of fair hearing as well as fair trial. He made reference to the case of NIGERIA ARAB BANK LTD -VS- COMEX (1999) 6 NWLR (PT.608) AT 648, that in a case of this nature the lower court should have granted the Appellants adjournment to enable him furnish the Tribunal with proofs of the pendency of the said application and he finally referred the court to the decision in MOHAMMED -VS- OLAWUNMI (1993) 4 NWLR (PT. 287) 254 and urged the court to resolve these issues in their favour.
The 1st Respondents’ Counsel, Biodun Fashakin Esq. argued that, the striking out of the Appellants’ petition at the lower court was proper, because election matters are sui generis and that same must be determined expeditiously pursuant to Section 148 of the Electoral Act, 2006. He submitted that the letter written to the President of the Court of Appeal by the 1st and 2nd appellants counsel requesting the First Election Tribunal to hear their petition and not the second one is final and which refusal prompted the Appellants to file series of applications to include application for stay of proceeding after filing the alleged originating summons pending at the Federal High Court, Akure and that it is apparent that the said motion dated 5/6/08 filed at the Court of Appeal for stay of proceedings dated 6/6/08 before the tribunal at the time when the appeal had not been settled let alone appeal entered at the Court of Appeal is suspicious.
He urges this court to hold that the multiplicity of processes for stay of the proceedings at the lower Tribunal is a flagrant abuse of the Court processes and an attempt to delay the hearing of the substantive petition referring the court to the cases of BANJO & ORS VS. ETERNAL SACRED ORDER OF C & S (1975) 3 S.C. 37 AT 43; OGUNSELA VS. APP (2004), 1 EPR 539 AND 5444; CBN -VS- SAIDU AHMED (2001) 6 NSCQR 859 AT 861 in support of the above contention.
He finally urges the Court to strike out the Appellants’ application for stay of proceedings and his entire appeal for want of diligent prosecution.
Counsel to the 3rd-8th Respondents argued that the stay of proceedings asked for by the Appellants can not be granted in vacuum and referred the Court to the cases of NDLEA VS OKORODUDU (1997) 3 NWLR (PT. 492); AYENI -VS- ELEDO (2005) 12 NWLR (PT. 939) 368 and PDP -VS- ABUBAKAR (2004) 2 NWLR (PT 1018) 303 @ 318. She argues that all the Appellants did was to frustrate hearing by the second Tribunal knowing fully well that election petition being sui generis should be attended to within a short and reasonable time. She referred to paragraph 10 of the Election Petition and Practice Direction NO.2 of 2007, and that election tribunal does not have power to grant a stay of proceedings in respect of an interlocutory appeal and urges the Court to resolve the issue in their favour.
I agree with the Appellants that where an application for stay of proceeding is pending before a lower court and an appeal is filed at the Higher Court, the lower court should stay its proceeding, and await the decision of the appellate court. See AKAPO -VS HAKEEM HABEEB (1992) 6 NWLR (PT. 247) AND KOTOYE -VS- C.B.N. (1989) NWLR (PT. 89).
However, we are dealing with a special matter and this is an Election Petition which has a limited time within which a petition should be heard and determined. Any notice of appeals and stay of proceedings no matter how important cannot act as a stay of proceeding to hear an election petition knowing fully well that election petition matter are sui generis and time should be expedited for it to be heard and determined within a reasonable period.
Delays no matter how minute will not be tolerated in election petition. See OGUNSOLA -VS- APP (2002) 1 EPR (539) AT 544
R 5; CHIME V. EZEA (2009) 2 NWLR (PT. 1125) 263 AT 355.
The Appellants should not have insisted for a stay of proceedings when all adjournments granted by the Tribunal were at the instance of the Appellants and on each subsequent dates the matter had always been slated for hearing, the appellants will come up with another application, which they will be serving on the Respondents’ in court and after each ruling is delivered, the appellants will bring another application. A party should not be allowed to use court processes to stifle the course of justice nor to frustrate the other party. See HABIB (NIG) BANK LTD VS. OCHETE (2001) 3 NWLR (PT 699) 114.
At this juncture, it would be right to say that the Appellants have abused court processes, and he that comes to equity must come with clean hands. See EKANEM -VS- AKPAN (1991) 8 NWLR (PT. 211) 616, OMONIYI -VS- UBA. LTD (2001) 18 NWLR (PT 706) 240. Delay tactis defeats equity SEE IGBINOKPOGI -VS- OGEDEGBE (2001) 18 NWLR (PT.745) 412.
The Supreme Court have in plethora of cases held that abuse of court process or judicial process is the improper use of judicial process by a party in litigation and that it may occur in the following cases.
- Instituting a multiplicity of actions on the same Issues or
- Instituting a multiplicity of actions of the same subject matter between the same parties. See. THE VESSEL SUMIT ROCANT V. OSHINLAYE (1997) 4 NWLR (PT. 500) 387; MESSRS N. V. SCHEEP -V- MVS ANAZ (2000) 15 NWLR (PT.
691) 622; SARAKI V. KOTOYE (1992) 9 NWLR (PT.264) 156 and GLOBE MOTORS HOLDING LTD -V- HONDA MOTORS CO. LTD (1988) 5 NWLR (PT. 550) 373 AT 381 – 383.
In this appeal, the appellants have by their consistent applications for adjournments and resort to persistent applications including applications for stay of proceedings III their own petition before the tribunal pending the stay of proceedings before this court has shown and demonstrated that they want to delay and probably remote control the Tribunal to do their bidding.
The Application for stay of proceedings before the tribunal was refused after a due consideration of same by the learned tribunal when it analyzed and summarized the Applicants position in the application in this words thus “In his written address, the Petitioners/ Applicants formulated the following issue for determination.
“Whether this honourable tribunal possess the requisite vires to grant this application having regard to the fact of pendency of an application for stay of proceeding of this petitioner before this tribunal at the Court of Appeal in support of this application.”
The summary of the argument of the learned counsel to the Applicant is that in view of the pendency of their application for stay of proceeding before the Court of Appeal, further proceedings simultaneously with the said pending application will render the application before the court nugatory and foist a situation of fiat accomplish on the Petitioners/Applicants in respect of the pending application. Thus he submit that it will lead to untold hardship and injustice on the Petitioner/Applicant. Taking any further step will reduce the pending application before the Court of Appeal to a mere academic exercise. He relied on CONTROLLER OF NIGERIA PRISONS VS ADEKANYE (1999) 10 NWLR (PT. 623) PAGE 400 particularly 425 paragraph A and B (2) MUHAMMED VS OLAWUMI (1993) 4 NWLR (PT. 287) PG. 254 AT 278 – 279 PARA “G” – “A””.
The Respondents however objected to the application but left the application more to the judicial discretionary power of the court which the tribunal utilized to the fullest in delivering its ruling on the 12/6/08.
Judicial discretion is applicable to the discretionary decision of a judge, court or tribunal and in effect means discretion bounded by the Rules and Principles of Law and not arbitrary, capricious or unrestrained. It is a Legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, nor the parties but to effect the law or the principles of equity. See MOHAMMED VS. C.O.P (1999) 12 NWLR (PT 630) 331, AMAECHI VS INEC (2008) 5 NWLR 227 AT 344, ODEDO VS. INEC (2008) 17 NWLR (PT. 117) 554 AT 623 – 624.
An exercise of judicial discretion should be according to law and not humor.
The appellants should have gone on with their case and at the end if necessary appeal on both the interlocutory appeal and substantive appeal rather than abandon their petition pursuing their application for stay of proceeding in an election petition matter.
The authorities cited by the Appellants’ Counsel are not apposite to their case, because this case is that of election petition and not a day to day affair like any other civil case as couched in the case referred to this court in their brief. It must further be observed here that the provisions of the Practice Direction NO 2 of 2007 are not for fun or to penalize any particular party. They are meant to be obeyed. See HMS LTD -VS- FIRST BANK (1991) 1 NWLR (PT.167) 220; WILLIAMS -VS- HOPE RISING VOLUNTARY SOCIETY (1982) 1 ALL NWLR (PT.1) 1. YUSUF V. OBASANJO (2003) 16 NWLR (PT 847) 544, PDP -VS- HARUNA (2004) 16 NWLR (PT 900) 597, N E C VS UBOH (2001) 3 NWLR (PT 701) 476.
Paragraph 10 of the Practice Direction NO.2 of 2007 provides as follows:
“An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for stay of proceeding before a tribunal.”
The above provision is clear and unambiguous in its purports and intendment. It takes into view that in election petition, time is of essence, speedy trial should be the vogue in the interest of not only the parties but also in the interest of the electorate and court.
For the applicants to say that their rights where infringed by the tribunal for not granting them an adjournment to exercise their unexisted right of appeal is misconceived and misplaced. This type of application will not be tolerated in election petition. See Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria. The Constitution, therefore, vehemently frowns upon the denial of fair hearing but it despises abuse of such right as done by the appellants see KENON -VS- TEKAM (2001) 14 NWLR (PT 732) 12.
It is only when an interlocutory appeal will dispose off the substantive case that a stay of proceedings will be granted. Where the grant of a stay will unnecessarily delay the procedure, stay of proceeding will not be granted. In the instant case, the interlocutory appeal will not dispose of the substantive matter, therefore, the stay of proceedings sought by the appellants was rightly refused by the tribunal see KABO AIR LTD -VS- INCO BEVERAGES LTD (2003) FWLR (PT 136) 944 AND AREGBESOLA VS OYINLOLA (2008) ALL FWLR (PT 436) 2018 AT 2023 PARAS B-C.
FABIYI JCA (as he then was) now of the Supreme Court in the case of AREGBESOLA VS OYINLOLA (supra) opined thus.
“it is now generally accepted that elections petitions are Sui generis. It is no longer a moot point. We are of the considered view that the issues of alleged exclusion of evidence as put up by the appellant/applicants is a matter that can be heard together with the final appeal. If it is found that evidence was wrongly excluded, the provision of section 15 of the Court of Appeal Act 1976 would avail the appellants at the end of the day. In its real essence there is nothing lost. It must be further observed here that the provision of the Practice Direction No.2 of 2007 are not for fun or to penalize any particular party. They are meant to be obeyed. Paragraph 10 of the Practice Direction No 2 of 2007 provides as follows:
“An interlocutory appeal shall not operate as a stay of proceedings, nor form a grant for a stay of proceedings before a tribunal”
From the foregoing it is clear that the Tribunal did the right thing by dismissing the petitioners/appellants application for stay of proceeding in the Tribunal, and it will be wrong and wicked to say that failure of the tribunal to stay proceeding when appeal has been filed in election petition is a breach of fair hearing. I therefore resolve these issues against the Appellants.
ISSUES IV & V
Issue iv of the Appellants brief is whether the lower Tribunal was right in using paragraph 5(3) of the Practice Direction (2007) to strike out at the petition. I have perused the whole record of proceedings and there is no where on the face of the record and to be more specific pages 143 – 145 which contains the ruling, striking out the petition, where paragraph 5(3) of the Practice Direction 2007 is referred to, to determine the petition. Going into it will be like interpreting what is not before us and not an issue from the lower court and it would just be an academic exercise, which will be in futility and for this reason will not touch the issues. See ATAKE -VS- AFEJUKU (1994) 9 NWLR (PT. 368) 379 AT 402, AKEREDOLU -VS- AKINREMI (1986) 2 NWLR (PT. 25) 710 AT 725 and SARAKI VS. KOTOYE (1992) 9 NWLR (PT 264) 156.
In my view, even though paragraph 5(3) of the Practice Direction was not invoked specifically by the Tribunal nevertheless it is by all means a proper enabling provisions under which a Tribunal should react to such applications. No Court worth its salt would indulge in mere academic exercise. It is trite to state that the grant or refusal of an adjournment is at the discretion of the Court and that such should be used judiciously and judicially.
Fasakin Esq. of Counsel to 1st and 2nd Respondents submitted that the non granting of the adjournment sought on the 12/6/08 was against the constitutional rights of the Appellants, he cited the cases of UBA -VS- STAHLBAU GMBH AND CO KG (1989) 6 SCNJ (PART 1) AT 28; ODUSOTE -VS- ODOSOTE (1971) ALL NCR 221, NTUKIDEM & ORS -VS- ASUQUO OKO & ORS (1986) 12 SC 126 AT 168 all stating that an adjournment should have been granted in the interest of justice.
Counsel to 3rd – 8th Respondents, Mrs. Maureen Arinze submitted that adjournment is not granted as a matter of course but must be based on cogent and compelling reasons. He referred the court to the cases of OKEKE -VS- ORUH (1999) 4 SCNJ 192 AT 205; AND SALIU -VS- EGEIGBON (1994) 6 SCNJ 223 AT 235 & 237.
He urges this Court to resolve this issue against the Appellants and that the appellants had over a period of three months sought for adjournments and were granted same on frivolous and vexatious grounds and that they are not entitled to the luxury of adjournment again as they have abused it. He referred to KATSINA-ALU, JSC in A.G. RIVERS STATE -VS- UDE & 12 OTHERS (2006) 6 – 7 SC 131 AT 147 that:
“It is now well settled that it is a matter within the discretion of the court whether or not to grant an adjournment. But that discretion must at all times be exercised not only judicially but also judiciously …”
MUKHTAR, JSC on his own part in BARINA -VS- TELEPOWER NIG. LTD (2006) 7 SC (PT. 1) i.e. 21 opined thus:
“….no litigant should be allowed to take a court to ransom. It is the vogue for the public to attack courts on delays of cases in court, when unknown to the generality of the public, the fault does not lie in the courts alone. The litigants and lawyers also share in these snail pace of ligitanly” (sic).
I hold based on the above dictum, that the discretion used by the lower tribunal in refusing this adjournment based on the antecedent of the Appellants in this case is right and correct. If a counsel will come to court and all he does is to ask for adjournment on dates of hearing, such a person is not entitled to both judicious and judicial discretion of a court or tribunal to be exercised in his favour.
When Application for adjournments seems endless, there comes an adjourned date, when the court would act decisively and refuse to entertain or accede to further applications for adjournments. These applications for adjournments on each hearing dates amounts to an abuse of judicial process and such ought not to be tolerated as it tends to delay the smooth and speedy of dispensation of justices. The Appellants’ continued applications for adjournment have become irritable, nuisantic and vexatious to the spirit or principle of speedy trial of election petitions which are sui generic in nature.
Time is of essence in election petition See AKPANG ADE OBI -ODU -VS- MR. DONALD ETIM DUKE & ORS (2005) 10 NWLR PART 932, 105 AT 144 – 145; BUHARI -VS- YUSUF (2003) 14 NWLR (PT. 841) 446.
In NWANKWO -VS- ATTAH, (1999) 5 NWLR (PT. 601) PAGE 134, where UWAIS, JSC (as he then was) said thus:
“… As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of procedural clogs that cause delay in the disposition of substantive disputes.”
Justice is often depicted as a blindfolded woman with a sword in one hand and a scale on the other.’ Those who are called to mete out Justice are not blindfolded, they see with their eyes and reason with their heads. See OKOTIEBOH -VS- MANAGER (2004) 18 NWLR (PT. 905) 241 AT 290 291 PARA F – G.
Adjournment of cases fixed for hearing are not obtainable as a matter of Course but may be granted or refused at the discretion of the court. The exercise of this discretion, however, is a judicial act against which an aggrieved party may lodge an appeal, but since it is a matter of discretion an appellate court will be slow to interfere with it. In order to succeed in an appeal against such exercise of discretion, the appellants must satisfy the appellate court that the tribunal acted on an entirely wrong principle or failed to take all circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant. See OKEKE -VS- ORUH (1999) 6 NWLR (PT. 605) 175.
Adjournment is a matter of discretion to be exercised judicially and judiciously. In the exercise of his discretion to grant or refuse an adjournment, the judge is obliged to weigh and strike a balance between the competing interest of the parties involved to the extent that non of the parties is favoured at the expenses of the other. In the present case it is clear from the records that counsel for the appellants was using his numerous application for adjournment as a ploy to make it impossible for the case to be determined. The adjournment sought by the / appellants is not only irritable but vexatious. See FAGBULE V RODRIGUE (2003) FWLR (PT 137) 1171 AT 1186 PARA. E-F.
Where MUHAMMED J.C.A. held that:
“Even though it is the law that adjournment is a matter of discretion to be exercised judiciously and judicially, the law has imposed a corresponding obligation on the judge while adjudicating to weight and strike a balance between competing interests of the parties involved to the extent that none of the parties is favoured at the expense of other. LIG (NIG) LTD V. ALAO (1990).”
Without mincing words and from the record of proceedings, I am bound to agree with the respondents that the appellants ware employing all “tactic” to it make impossible for the case to be determined. Where a party or his counsel orchestrates a designed plan to foist a position of helplessness or naivety upon a court, it is the duty of that court to assert its control over the proceedings before it and not to be held in captivity as the appellants attempt to do at the tribunal. In my humble view, Justice has a two edged sword, and when applied, consideration of the interest of all the parties should be placed on the proverbial scale before a decision is taken. Continuous grant of an adjournment that would in effect deprive the other party of justice would not be granted as justice delayed amounts to justice denied.
Therefore Election Petitions must be heard timely and without the court allowing itself to be deterred with technicality including undue and unnecessary applications for adjournments.
In NWOBODO -VS- ONOH (1984) 1 SCNJ 1 AT 92, UWAIS JSC (as he then was) has this to say:
“Election Petitions are by their nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of the courts therefore to endeavor to hear them without allowing technicalities to unduely fetter their jurisdiction.”
Infact, the essence of time, undue delay and indeed delay arising from technicalities or even unnecessary and incessant adjournments has been a source of concern to the judicial system, as could be gleaned from the cases of DR. CHRIS N.
Furthermore, pursuant to Section 15 of the Court of Appeal Act, 2004, I hereby declare the 1st Respondent, MRS. TITILAYO AKINDAHUNSI as the WINNER of the 21ST DAY OF APRIL, ELECTION 2007 for a seat m THE HOUSE OF REPRESENTATIVES ELECTION for EKITI SOUTH FEDERAL CONSTITUTENCY 1 EKITI STATE.
Parties should bear their respective cost and therefore there is no order as to cost.
Other Citations: (2009)LCN/3228(CA)
