Chief Ayodele Aremu Okumodi V. Alhaji Tayo Sowunmi (Ogun State Chairman, Alliance for Democracy) & Anor (2003)
LawGlobal-Hub Lead Judgment Report
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.
The appellant identified the following issues for the determination of this appeal:
“1.Whether it was right by the trial judge to refuse to consider other processes already filed in the trial court apart from the notice of originating summons and the affidavit in support thereof, in deciding the motion to dismiss the suit?.
2.Whether it was required for the plaintiff/appellant or the 2nd defendant/respondent, to have been nominated by the party before the plaintiff/appellant could become invested with locus standi and or a reasonable cause of action in this case?.
3.Whether section 308(2) of the Constitution does not apply to the 2nd defendant/respondent in this case.
4.Whether the 2nd defendant/respondent is not disqualified to contest another election to the office of the Governor of Ogun State?.’”
The 2nd respondent, on his part, raised the same number of issues which read as follows:
“1.Whether it was right for the trial judge to refuse to consider other processes already filed in the trial court apart from the notice of originating summons and the affidavit in support thereof, in deciding the motion to dismiss the suit?.
2. Whether it was required for the plaintiff/applicant or the 2nd defendant/respondent to have been nominated by the party before the plaintiff/appellant could become invested with locus standi and/or a reasonable cause of action in this case?.
3. Whether the learned trial Judge rightly held that the action instituted at the lower court was not maintainable against the 2nd defendant/respondent?.”
Although the 2nd respondent adumbrated the foregoing issues, it was done in the event of the notice of preliminary objection he gave in his brief of argument was overruled.
The rule on preliminary objection to the hearing of an appeal is aptly provided for in Order 3 rule 15 of the Court of Appeal Rules, 2002 (hereinafter referred to as the rules). Rule 15 of Order 3 of the said rules reads in part:
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof, before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof, with the Registrar within the same time.
(3) If the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.” (Italics mine for emphasis).
This is a mandatory rule and must be complied with by the respondents before arguments on the ground that the preliminary objection could be incorporated in the respondents’ brief of argument. See Savannah Bank (Nig.) Plc v. Prime Management Systems Ltd. (1999) 10 NWLR (Pt.621) 160 at 164. The consequence of non compliance accords the court a discretion of refusing to entertain the objection and ignoring the preliminary objection embodied in the appeal and arguments on it in the respondents’ brief of argument.
In the instant case, the 2nd respondent gave notice of preliminary objection in his brief of argument. This is clearly an approach outside the contemplation of Order 3 rule 15 of the Rules, 2002 which enjoins a preliminary objector to give such notice of a preliminary objection to the hearing of the appeal, not less than three clear days before the hearing of the appeal. The question is: should a preliminary objection included in the respondents’ brief of argument be discountenanced because of failure to comply strictly with the provisions of Order 3 rule 15 of the rules? I doubt not. It is now settled that failure to comply with Order 3 rule 15 of the rules will not render ineffective the notice of preliminary objection incorporated in the respondents’ brief of argument as the appellant cannot be heard to deny being aware of the notice, merely because it did not strictly conform with a specific procedural rule of court as that may amount to taking undue refuge under reliance on technicalities, from which emphasis has shifted. See Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555 at 570 and 572 SC and Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248, (1985) 2 NSCC 1298 SC.
In view of the foregoing, it is quite regular to give consideration to the instant preliminary objection on its merit.
At the hearing of this appeal O.T. Akinbiyi Esquire and W. Ajayi the learned counsel for the appellant and 2nd respondent adopted and relied on their briefs of arguments, filed on 28th of January, 2003 and 17th of February, 2003 respectively. Both learned counsel for the appellant and the respondents, amplified their arguments by urging the court to allow and dismiss the appeal respectively.
It is settled that the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent and fundamentally defective which if it succeeds, would put an end to the appeal. See N.E.P.A. v. Ango (2001) 15 NWLR (Pt.737) 627 at 646. In view of the importance of preliminary objection raised in an appeal, it is only prudent to give it preferential treatment before other issues raised in the appeal. I shall accordingly, consider the preliminary objection dealing with the issues raised by the grounds of appeal.
Thus, the learned counsel for the respondents argued that grounds 1, 2 and 3 of the grounds of appeal contained in the notice of appeal dated 19th of August, 2002 and filed on 22nd August, 2002 by the appellant are incompetent, and should be struck out because grounds 1, 2 and 3 of the grounds of appeal contravened the provisions of Order 3 rule 2(2), (3) and (4) of the rules. Furthermore, grounds 1 and 2 of the grounds of appeal are incompetent and invalid as they alleged both errors in law and misdirection at the same time.
Learned counsel for the respondents expatiated on his argument on grounds 1, 2 and 3 of the grounds of appeal because those grounds of appeal as couched are vague, imprecise, incoherent and argumentative. He argued that the particulars are not set out distinctly, because they are lumped together and mixed with copious legal arguments contrary to the stipulations of Order 3 rule 2(2), (3) and (4) of the rules. He contended that failure of the appellant to properly couch those three grounds renders them incompetent and should be struck out, and he relied on the case of Bani Guda and Ors. v. Jumbo Kitia (1999) 12 NWLR (Pt.629) 21 at 39.
Learned counsel for the respondents submitted with regard to grounds 1 and 2, that a ground of appeal cannot be an error in law and a misdirection at the same time. He further submitted that, it is either a misdirection or an error in law and he cited in support the cases of Oge v. Ede (1995) 3 NWLR (Pt.385) 564 at 584; Obijuru & 2 Ors. v. Anokwuru & 2 Ors. (2001) 17 NWLR (Pt.743) 685 at 691 and Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 at 169. He, therefore, urged the court to hold that grounds 1, 2 and 3 are incompetent and should be struck out, while the appeal should be dismissed.
The learned counsel for the appellant failed to file a reply brief of argument where he could have reflected his reaction to the preliminary objection raised in the respondents’ brief of argument, as enjoined on him by Order 6 rule 5 of the rules. That notwithstanding, since the issue raised in the notice of preliminary objection in the respondents’ brief of argument dealt with points of law, the learned counsel has a right to proffer viva voce argument to contradict the arguments proffered on behalf of the respondents by his learned counsel. He did just that and argued in essence that the complaints in the seeming vexed grounds are disjunctive and not conjunctive.
It appears from the foregoing submissions of the learned counsel for the appellant and the respondents, that they are pivoted on the couching of the grounds of appeal. I am, therefore, of the opinion that it will make for elucidation and indeed ease of reference, if grounds 1, 2 and 3 are substantially reproduced in order to fully appreciate the arguments and submissions of learned counsel as regards their propriety or impropriety. Grounds 1, 2 and 3 of the grounds of appeal read:
“(1) The learned trial judge misdirected himself or erred in law when his Lordship held that since neither the appellant nor the 2nd defendant/respondent has been sponsored, the action is premature and, hence, that the appellant has no cause of action.
PARTICULARS OF MISDIRECTION OR ERROR:
The original complaint of the appellant was that his party has indicated that he would not be sponsored because of the fact that the 1st respondent is likely to be fielded again.
In the light of his Lordship’s position and the facts placed before the court, the appellant would never be able to approach the court for a remedy against the action of his party who would not sponsor him because the 1st respondent is to be sponsored. What the court is called upon to decide in this case is whether the party of the appellant could deprive him of qualification (sponsorship of his party) to contest as Governor of Ogun State because of the interest of the 1st respondent who is contended to be disqualified from contesting the election by virtue of the provision of section 182(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999.
The lower court Judge held that the appellant fulfilled all other conditions under the said Constitution to be qualified to contest election as Governor of Ogun State except that he has not been sponsored by his party, Alliance for Democracy.
(ii) The lower court judge erred in law or otherwise misdirected himself when his Lordship limited himself in dealing with the motion to dismiss this suit (leading to this appeal) to the originating summons and its affidavit in support.
PARTICULARS OF MISDIRECTION OR ERROR:
The 2nd defendant/respondent filed a counter-affidavit to the originating summons that he would rely upon and which was in fact relied upon.
An affidavit in reply to the said counter-affidavit (to the originating summons) was filed before the court which was also relied upon in the course of argument. A counter-affidavit was filed against the affidavit in support of the motion to dismiss the suit.
The non-consideration of all the material evidence placed before the court, especially, when they were relied upon by all the parties led the lower court Judge to his conclusion in this case and thereby occasioned (sic) a miscarriage of justice.
(iii) The learned trial judge erred in law by not holding that this action falls within the exception contained in section 308(2) of the said 1999 Constitution, and when his Lordship proceeded to hold that the 2nd defendant/appellant (sic) is liable to be struck as a party in the originating summons.
PARTICULARS OF ERROR:
No direct relief is claimed against the 2nd defendant/respondent.
It will amount to absolute injustice if the 2nd defendant/respondent were (sic) not joined in this action at all.” (Italics mine too emphasis)
Having copiously reproduced the grounds of appeal contained in the notice of appeal, dated 19th August, 2002, it is now appropriate to consider the law or laws relevant to the couching of the wording in a ground or grounds of appeal.
Thus, Order 3 rules 2(2), (3), (4) and (7) of the rules are of particular moment. Those sub-rules read as follows:
“2(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof, which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.
(7) The court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.” (Italics mine for emphasis).
The foregoing provisions have, in a plethora of cases, been judicially interpreted.
Thus, first, it is settled that the correct interpretation of O. 3 r.2(2) of the rules is that –
“(a) the ground of appeal which alleges both misdirection and error in law or indeed error in law and on fact is an incompetent ground of appeal. Such a ground of appeal is incurably bad and not allowed as a valid or competent ground of appeal and should be struck out. See Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
(b) the only other ground of appeal permitted under the rules of the court is the general or omnibus ground that-
(a) in civil appeals-
‘that the lower court judgment is against the weight of evidence’;
(b) in criminal appeals-
‘…that the judgment or verdict’ cannot be supported having regard to the evidence.”
See: First Bank of Nigeria Ltd. v. Njoku (1995) 3 NWLR (Pt.384) 457 at pages 472 and 473; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 and Obijuru v. Anokwuru (2001) 17 NWLR (Pt.743) 685 at 698.
It is equally settled that in construing the words of a statute such as Order 3 rule 2(2) of the rules where the words are clear and unambiguous, it is the words used that govern. It is not what the court or the Judge says the provisions mean. See Goodrich v. Paisner (1957) AC 65 at 88 where it was held, inter alia, that no court is entitled to substitute its words for the words of the act.
As regards the requirement of a ground of appeal which alleges either an error in law or a misdirection, not only must the passages where the error or misdirection occurred be quoted, full and substantial particulars of the alleged errors or misdirections, except they are included in the main ground, must also be given. See Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 268; (1987) 18 NSCC (Pt.1) 117 at 130 and First Bank of Nigeria Ltd. v. Njoku (supra) at page 475.
A hard look at grounds 1 and 2 of the instant grounds of appeal, showed that they were regularly worded by the appellant who couched the misdirection and error in law disjunctively in accordance with the provision of Order 3 rule 2(2) of the rules. I, therefore, find no basis in the submissions of the learned counsel for the respondents to disturb the said two grounds. Grounds 1 and 2 are accordingly competent.
The particulars of grounds 1, 2 and 3 of the grounds of appeal cannot be accorded the same favour because they are argumentative, conclusive, as they do not flow from the errors or misdirection as contained in the ruling. Any particulars which are conclusive, argumentative and vague are outside the precincts of the application of Order 3 rule 2(2) of the rules. It is settled that, where a ground of appeal as in the instant case alleges error in law or a misdirection, the particulars of errors or misdirection must be clearly stated and must specifically flow from the main ground of appeal which is based on the error and misdirection in the ruling or judgment. It is improper where an appellant has alleged an error in law or a misdirection without quoting the passage or passages where the error or misdirection has occurred and has failed to give full and substantial particulars of the alleged error or misdirection. See Chuke v. F.H.A. (1999) 10 NWLR (Pt.624) 574 at 581.
It is pertinent to state that the main purpose of requiring particulars on grounds of appeal which hinge on error in law or misdirection is to highlight briefly when and how the error occurred, and this can only be evinced from the decision appealed against. See D. Stephens Industries Ltd. & Anor. v. Bank of Credit & Commerce International (Nig.) Ltd. & Anor. (1999) 11 NWLR (Pt,625) 29 at 34.
In the instant case, the appellant failed to supply particulars of errors or misdirection which are sourced from the ruling of the lower court and couched in grounds 1, 2 and 3 of the grounds of appeal, thereby, rendering each of them incompetent.
He also did not embed or lace any particulars in the complaints made in those grounds of appeal which would have made the said grounds self explanatory.
In other words, grounds of appeal which allege errors in law will not be incompetent if they have incorporated in them the particulars of errors alleged. See Giwa Amu v. Guardian Newspapers Ltd. & Ors. (1999) 8 NWLR (Pt.616) 586 at 578; Okorie v. Udom (1960) SCNLR 326; Obisanya v. Nwoko (1974) 6 SC 66 and D. Stephens Industries Ltd. & Anor. v. Bank of Credit & Commerce International (Nig.) Ltd. & Anor. (1999) 1 NWLR (Pt.625) 29 at 34.
The end result is that each of grounds, 1, 2 and 3 of the grounds of appeal in the instant case has no valid particulars. I shall accordingly invoke Order 3 rule 2(7) of the rules to strike out each of them. See: Giwa Amu v. Guardian Newspapers Ltd. & Ors. (supra) at page 578.
Since all the grounds of appeal filed by the appellant have been struck out due to incompetence, the notice of appeal is, thereby, rendered a nullity and it is also struck out. See First Bank of Nigeria Ltd. v. Njoku (supra) at page 475; Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 and Pam v. Gwom (1998) 2 NWLR (Pt.538) 470 at 476 and Order 3 rule 2(7) of the rules.
In sum, since all the grounds of appeal are incompetent and have adversely affected the notice of appeal, the notice of appeal is rendered a nullity. The appeal, therefore, becomes defective and it is accordingly struck out. I award costs of N10,000.00 (ten thousand naira) in favour of the 2nd respondent against the appellant.
Other Citations: (2003)LCN/1372(CA)