By Tom Anyafulude
Where ‘A’, ‘B’ and ‘C’ jointly filed an election petition at the Election Petition Tribunal, can ‘C’ alone validly withdraw such a petition without the consent of ‘A’ and ‘B’? This espouse of withdrawal of election petitions is necessitated by recent development in the polity, whereby it is alleged that one Lamidi Apapa, a factional leader of Labour Party has initiated moves or has attempted to withdraw the election petitions of the Labour Party filed at the Election Petition Tribunals.
In its program titled Politics Today, on Channel News of Tuesday 25th April, 2023, the PRO of Labour Party tried to throw light on this development. However, in law, this is a mere rouse and may be described as much ado about nothing.
Where ‘A’, ‘B’ and ‘C’ has jointly filed a petition, what are the principles relevant to the withdrawal or abatement of such a petition? To discuss this question, recourse has to be made to SS.29 and 30 of the Rules of Procedure for Election Petitions, which provide:
(29)(1) An election petition shall not be withdrawn without leave of the tribunal or court.
(2) Where the petitioners are more than one, no application for leave to withdraw the election petition shall be made except with the consent of all the petitioners.
(3) The application for leave to withdraw an election shall be made by motion after notice of the application has been given to the respondents.
(4) The notice of motion shall state the grounds in which the motion to withdraw is based, supported with affidavit verifying the facts and reasons for withdrawal, signed by the petitioner or petitioners in the presence of the Secretary.
(5) At the time of filing the notice of motion, the petitioner or petitioners shall leave copies for service on the respondent.
(6) The petitioner or petitioners shall also file the affidavits required under paragraph 29 together with copies for each respondent and pay the fees prescribed or directed by the Secretary for services.
(30)(1) Before the leave for withdrawal of an election petition is granted, each of the parties to the petition shall produce an affidavit, stating that-
(a) to the best of the deponent’s knowledge and belief no agreement or term of any kind whatsoever has been made; and
(b) no undertaking has been entered into, in relation to the withdrawal of the petition, but if any lawful agreement has been made with respect to the withdrawal of the petition, the affidavit shall set forth that agreement and shall make the foregoing statement subject to what appears from the affidavit.
Accordingly, the following principles are trite:
- the petitioners must jointly file a motion of withdrawal or abatement.
- Each petitioner must file an affidavit.
iii. Such an affidavit must be deposed in the presence of the Secretary of the Tribunal.
- Where there is no agreement to withdraw, a petitioner shall depose to such facts in an affidavit.
- the notice of motion for withdrawal shall state the grounds for such a withdrawal.
Thus, withdrawal of an election petition cannot be arbitrarily done without the consent of the candidate(s) who participated in the Election.
It should be recalled that under S.133 of the Electoral Act, an election petition may be presented by-
(a) a candidate of an Election; or
(b) a political party which participated in the Election.
In the case of Labour Party, the petitioners are:
- Mr. Peter Obi.
Ii. Mr. Yusuf Datti Baba-Ahmed.
Iii. The Labour Party.
Thus, the first two petitioners can validly present a petition or the third petitioner can also present a petition. Where however, 3 of the petitioners jointly present a single petition, it is impossible for Labour Party alone to withdraw the petition. From the contents of the petition, the Labour Party is a nominal party. A political party is the vehicle by which a candidate contests an election. It is in fact, a qualifying condition, but it assumes less visibility once the Election is concluded. The candidate now assumes more visibility and is declared the winner or otherwise of the Election.
It still puzzles me and I find it difficult to reconcile the Courts Order that removed Julius Abure as the Chairman of Labour Party. He was alleged to have fogged some documents which were an entirely criminal matter. What has this allegation to do with the Constitution of Labour Party as regards the validity of office of chairman of the party? After all, it is a mere criminal allegation and Mr. Julius Abure is entitled to presumption of innocence until the contrary is proved. A person standing criminal trial still holds his office until indicted. In this case, in one swoop, the FCT Court ordered Julius Abure to stop parading himself as the Chairman of Labour Party in ex-parte proceedings! I weep for the Nigerian Judiciary.
Finally, the Election Petition Tribunal has no jurisdiction to entertain any internal dispute of a political party. That issue is within the realm of the High Court. So, where there is evidence that the leadership of Labour Party is disputed, the election tribunal will not digress but rather focus on the petition that was validly initiated before it.
