A party has a right to institute and withdraw a case. Just like there is a procedure of institution, there is a procedure for withdrawal.
There are many reasons for withdrawal, including loss of interest in the case, use of alternative dispute resolution mechanisms, and lack of sufficient evidence to back up the case.
Withdrawal of cases is premised on the principle that Court only makes orders as desired by the plaintiff and can’t go against his/ her wishes. Court only grants what has been prayed for.
The principle is that a case may be withdrawn at any stage before judgment is delivered. If service has not been effected on the other party, it can be withdrawn by giving notice to Court. However, where service has been effected, the plaintiff who is withdrawing the suit should serve notice of withdrawal to the respondent with leave of Court.
Focusing on the presidential elections petition, withdraw has to be done in accordance with the law.
According to section 61 of the Presidential Election Act, 2005, withdrawing an election petition is a preserve of Court. Subsection (1) provides that an election shall not be withdrawn except with the leave of the court and after such notice has been given as the court may direct.”
Subsection (2) empowers any candidate in the Presidential elections of 2021 to inherit an election petition if they apply to be substituted for the petitioner. In the prevailing circumstances in the country, former Presidential candidate Mayambala Willy has applied to inherit the particular presidential election petition.
The Court has the discretion to determine whether the petitioner bears the costs of the suit or for each party to bear its costs.