CASE SUMMARY OF:
Chief Ayodele Aremu Okumodi v. Alhaji Tayo Sowunmi & ANOR (2003) - CA
by NSA PaulPipAr
AREA OF LAW
- Procedural Law;
- grounds of appeal;
- incompetent grounds of appeal;
- notice of appeal;
- vague grounds of appeal.
Chief Ayodele Aremu Okumodi
1. Alha Ji Tayo Sowunmi (Ogun State Chairman, Alliance For Democracy);
2. Chief Olusegun Osoba (Ogun State Governor);
 2 NWLR (Pt.856)1;
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- O.T. Akinbiyi, Esq.
* FOR THE RESPONDENT
- Wale Ajayi, Esq.
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FACT (as relating to the issues)
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 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."
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 being dissatisfied has further appealed to the Court of Appeal.
THE 2ND RESPONDENT RAISED A PRELIMINARY OBJECTION THAT THE GROUND OF APPEAL FILED BY THE APPELLANT IS INCOMPETENT DUE TO THE GROUNDS AND PARTICULARS BEING ARGUMENTATIVE.
HOLDING & RATIO DECIDENDI
[APPEAL: STRUCK OUT, WITH N10,000 COST AGAINST THE APPELLANT]
1. AFTER CONSIDERING THE PRELIMINARY OBJECTION FILED BY THE 2ND RESPONDENT, THE COURT OF APPEAL STRUCK OUT THE APPEAL FOR BEING INCOMPETENT.
i. 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.
ii. 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.
iii. 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.
iv. 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.
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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. - Ibiyeye, JCA. Okumodi v. Sowunmi (2003)
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. - Ibiyeye, JCA. Okumodi v. Sowunmi (2003)
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. - Ibiyeye, JCA. Okumodi v. Sowunmi (2003)
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. - Ibiyeye, JCA. Okumodi v. Sowunmi (2003)
Where a ground of appeal alleges an error or misdirection in law, in order to be a valid ground of appeal it must - (a) quote the passage in the judgment, where the misdirection or error in law is alleged to have occurred. (b) specify the nature of the error in law or misdirection and (c) give full and substantial particulars of the alleged error and misdirection. - Adekeye, JCA. Okumodi v. Sowunmi (2003)
Where grounds of appeal cannot stand because of incompetent or inadequate or invalid particulars, they ought to be struck out. - Adekeye, JCA. Okumodi v. Sowunmi (2003)
The end of this brief.
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