SAN FRANCISCO, September 19, (THEWILL) – An Abuja High Court on Thursday dismissed a suit brought by the lagos State governor, Babatunde Fashola, seeking to determine the authentic winner of the May 25 contentious Nigeria Governors’ Forum’s (NGF), election.
The court order which struck out the suit, followed an earlier application for discontinuance brought by the plaintiff and Governor of Lagos state, Mr. Babatunde Raji Fashola, SAN.
Before the application to discontinue the suit was brought, Fashola, had, through his counsel, Prof. Yemi Osibanjo, SAN, asked the court via a writ of summons, for an order of court restraining the Plateau State governor, Jonah Jang, and claimant to the chairmanship of the forum, from parading himself as such.
Fashola had stated that the Rivers State governor, Mr. Rotimi Amaechi, won the May 25 poll, having scored 19 votes, to beat Jang, who was said to have scored 16 votes.
However, before the court could resolve the disputes which arose among counsel over who was briefed to represent the feuding parties, Osibanjo brought an application for discontinuance/withdrawal of the suit.
But the application was opposed by counsel to Jang, Chief Tayo Oyetibo, SAN, and Mr.Paul Erokoro,SAN, as well as counsel to Osaro Onaiwu, the 3rd defendant.
B.T Bukar, who appeared for Asishana Bayo Okauru (2nd defendant) as F.N Nwosu, counsel to The Registered Trustees of Nigeria Governors’ Forum, also opposed the application.
Their respective opposition, was initially upheld by the trial judge, Justice Peter Affen, on the ground that leave of court was not sought and obtained first, before the application for withdrawal was moved.
Therefore upon a proper application for discontinuance filed on July 16, Osibanjo prayed the court to strike out the suit,submitting that it was the right of the plaintiff to decide at any stage to discontinue his case. He further submitted that it was not the business of counsel to the defendants to preempt the plaintiff’s next step, more so that the matter was still at its preliminary stage.
In opposition to Osibanjo’s contention, however, Oyetibo and Erokoro, urged the court to discountenance the plaintiff’s call and proceed to dismiss the suit in limini.
According to the respondents’ counsel, an order for dismissal will serve as deterrent to the plaintiff, whom they accuse of running in and out of court. They further accused Fashola of starting a fight and abandoning it half-way.
It was their humble submissions that the plaintiff’s action was allegedly borne out of his discovery that there were “manifestly incurable defects” in the suit,which they claimed,could not be cured by an amendment.
In his ruling on Thursday. Justice Affen agreed with the position of Fashola that the suit be struck out rather than an outright dismissal.
Affen held that “the law is trite that a plaintiff can discontinue or withdraw his claim against the defendants” whenever he deems appropriate.
“Having carefully evaluated the arguments..the stage at which the plaintiff applied to withdraw this suit, is one in which no evidence has been given. “As a matter of fact,the case has not been fixed for trial and the proper order to make when it is discovered that the plaintiff lacks the locus standi to institute an action,is one of striking out.
“It seems to me that the order to make in the circumstance,is to strike out the suit and not to dismiss it. Same is accordingly struck out,” the presiding judge said.
