Chief Ayodele Aremu Okumodi V. Alhaji Tayo Sowunmi (Ogun State Chairman, Alliance for Democracy) & Anor (2003)

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SAKA ADEYEMI IBIYEYE, J.C.A. 

This is an appeal against the ruling of Lokulo-Sodipe, J of the Ogun State High Court of Justice sitting in Abeokuta, delivered on the 28th day of June, 2002, allowing the motion on notice filed by the 2nd defendant/respondent/applicant and striking out the originating summons filed by the plaintiff, now appellant.

The antecedents of this appeal are that the appellant as the plaintiff took out an originating summons dated 16th April, 2002 in which he sought for the determination of the following question by the lower court:
“Whether the 2nd defendant (Chief Olusegun Osoba), is not disqualified for another election to the office of Governor of Ogun State after 1999, by virtue of the provisions of Section 182(1)(b) of the Constitution of the Federal Republic of Nigeria 1999?.”

The plaintiff/appellant embodied in the same originating summons the following titled ‘Further Claims’.
“(i) A declaratory order that the 2nd defendant/respondent (Chief Olusegun Osoba), is disqualified under the Constitution of the Federal Republic of Nigeria, 1999 for another election to the office of the Governor of Ogun State after the 1999 gubernatorial elections, having been elected into the office at two previous elections.

(ii) An order of injunction, restraining the defendant or any person acting as or through Ogun State Chairman of Alliance for Democracy from disturbing the plaintiff from contesting for the office of the Governor of Ogun State on the platform of Alliance for Democracy on the ground that the 2nd defendant is likely be fielded (sic) by the party.”

The plaintiff/appellant filed a seventeen paragraph affidavit in support of his originating summons. The 2nd defendant/respondent responded to the plaintiff’s/appellant’s affidavit by filing a counter affidavit of seventeen paragraphs, in addition to the said counter affidavit, the 2nd defendant/respondent filed a motion on notice dated 21st of May, 2002 seeking the following orders:
“1. An order dismissing this suit in its entirety on the grounds:
(a) that it constitutes an abuse of court process;
(b) that it is premature, vexatious and discloses no cause of action.

OR IN THE ALTERNATIVE
2. An Order of this Honourable Court striking out the 2nd defendant as a party in this suit on the ground that the action is not maintainable against him, by virtue of the provision of Section 308 of the Constitution, and for such further order or order( s) (sic) this court may deem fit to make in the circumstance.”

TAKE FURTHER NOTICE that at the hearing of this motion, the 2nd defendant/applicant shall rely on the plaintiffs’ originating summons, dated 16th April, 2002, the affidavit in support of the said originating summons and counter affidavit, filed by the 2nd defendant in opposition to the originating summons.”

In reply to the 2nd defendant’s/respondent’s counter-affidavit to the originating summons, the plaintiff/appellant further filed a nineteen paragraph affidavit dated 7th day of June, 2002. The plaintiff/appellant also filed an eighteen paragraph counter-affidavit on the same date (7th June, 2002), to the motion on notice (already reproduced), urging the court below to dismiss the plaintiff’s suit.

The learned counsel for the 2nd defendant/respondent/applicant moved the motion in point by urging the court below to dismiss the suit or strike out the name of the 2nd defendant. The learned counsel for the plaintiff/appellant/respondent argued against the reliefs sought on behalf of the 2nd defendant/respondent’s application.

The learned trial judge in a considered ruling held inter alia:
“Accordingly, as I earlier concluded, that the respondent’s action initiated by originating summons before the court discloses no cause of action and is also premature and also that the respondent lacks the locus to institute the action initiated by the said originating summons. I, hereby, strike out the originating summons, dated 16/4/2002 filed by the plaintiff/respondent for the reasons earlier stated above. Having struck out the originating summons before the court, which is an indication that the respondent’s prayer in the main leg has acceded (sic), this court has no further business with the alternative prayer. The law is that a court cannot grant the main claims and alternative claim sought by a party at the same time.

In conclusion the applicant’s motion dated 21st May, 2002 succeeds.

The plaintiff/respondent now appellant was aggrieved by this ruling and appealed to this court on three grounds.

In strict compliance with the rules of this court, both the appellant and the 2nd respondent filed and exchanged their briefs of argument.