3PLR – ADEGOROYE V. ALLIANCE FOR DEMOCRACY

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADEGOROYE

V.

ALLIANCE FOR DEMOCRACY

COURT OF APPEAL [ABUJA DIVISION]

CA/A/22/M/2003

WEDNESDAY, 4TH JUNE, 2003

3PLR/2003/8(CA)

 

OTHER CITATIONS

FWLR (Part 176) 604

BEFORE:    

GEORGE ADESOLA OGUNTADE, JCA (Presided)

IBRAHIM TANKO MUHAMMAD, JCA

ALBERT GBADEBO ODUYEMI, JCA (Delivered the leading judgment)

BETWEEN

1. MR. ADEMOLA ADEGOROYE
2. DR. OLUSEGUN MIMIKO
3. DR. AKERELE ADU
4. ARC. OLUSOLA AGBESUA

AND

1. ALLIANCE FOR DEMOCRACY
2. ALHAJI A.A. ABDULKADIR (Chairman A.D.)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. CHIEF ADEBAYO ADEFARATI

REPRESENTATION

MRS. J.O. ADESINA – For appellant

ADENIYI AKINTOLA, ESQ SAN With, MRS. O. OLANIYAN – For 1st respondent

CHIEF AKIN OLUJIMI SAN – For 2nd respondent

WOLE ADEBAYO ESQ.  –  For 4th respondent

MAIN ISSUES

ELECTION MATTERS:– Intra-party matters – Appeal against failure to conduct screening exercise – Letter of protest by plaintiffs to the Vice-Chairman south-west zone of the Alliance for Democracy – Whether same constitutes an appeal under the party’s guidelines.

ELECTION MATTERS:– Failure to conduct screening exercise – Whether this is a decision to be appealed against internally first under the guidelines of Alliance for Democracy before going to court.

ELECTION MATTERS:– Sponsorship for political post – Determination of – Provisions of section 221 of the 1999 Constitution and the Electoral Act, 2002 considered therein

CONSTITUTIONAL LAW:- Section 221 of the 1999 Constitution – Sponsorship of a candidate for a political post – How determined

PRACTICE AND PROCEDURE – APPEAL:– Grounds of appeal – Where a ground of appeal complains of a misdirection and also an error at the same time – Competence of – Order 3 rule 2 of the Court of Appeal Rules 2002 considered thereunder.

PRACTICE AND PROCEDURE – APPEAL:– Appellate court – Whether same can interfere with the right decision of a lower court arrived at on a wrong reason – Proper treatment of

PRACTICE AND PROCEDURE – COURT:– High Court – Decision by a trial Judge that action brought by plaintiffs was premature – Whether the decision was right in the circumstance of this case.

PRACTICE AND PROCEDURE – COURT:- High Court – Jurisdiction of – Whether trial court was right to have declined jurisdiction in entertaining suit – Circumstances of the case considered.

PRACTICE AND PROCEDURE – JURISDICTION:– Jurisdiction of court – Where trial Judge declined jurisdiction to entertain suit – Propriety of – How considered

INTERPRETATION OF STATUTE:– Order 3 rule 2 Court of Appeal Rules 2002 – the word “or” in the rules – Whether same should be read disjunctively or conjunctively – Interpretation of.

MAIN JUDGEMENT

ALBERT GBADEBO ODUYEMI, JCA (Delivering the leading judgment):

In the High Court of the Federal Capital Territory, Abuja, the appellants as plaintiffs took out a writ of summons against the 1st – 3rd respondents, as defendants seeking the following declaratory and injunctive reliefs:

“1.     A declaration that the plaintiffs are fit and proper persons to contest for the 2003 gubernatorial election in Ondo State.

2. A declaration that the purported decision of the 1st and 2nd defendants to exclude of (sic) the plaintiffs from the gubernatorial primaries without screening them is a gross violation of the 1st defendant’s regulations and guidelines for the conduct of party primaries made pursuant to its Constitution, and therefore unlawful, unconstitutional, null and void.
3. A declaration that failure by the 1st defendant to screen the plaintiffs before excluding them from primary election is a gross violation of the 1st defendant’s regulation and guidelines for the conduct of party primaries made pursuant to its Constitution.
4. Perpetual injunction restraining the 1st and 2nd defendants from presenting to the 3rd defendant any person as gubernatorial candidate of the 1st defendant without due compliance with 1st defendant regulations and guidelines for conduct of party primaries.
5. Perpetual injunction restraining the 3rd defendant from accepting and or recognizing any person presented to it by the 1st and 2nd defendant as candidate of the 1st defendant for the 2003 gubernatorial election in Ondo State.”

Simultaneously with the filing of the writ and the accompanying statement of claim plaintiffs filed a notice of motion in the court praying the court for the following interlocutory orders:

“1.     An order restraining the 1st and 2nd defendants pending the determination of the substantive suit from presenting any person as the candidate of the Alliance for Democracy for the 2003 gubernatorial election in Ondo State without due compliance with the party’s regulation and guidelines for conduct of party primaries signed by the 2nd defendant and made pursuant to the Constitution of the party.

2. An order restraining the 3rd defendant from accepting and or recognizing any person presented by the 1st and 2nd defendants as the gubernatorial candidate of the 1st defendant pending the determination of the substantive suit.”

The notice of motion was argued before the lower court and prayers were granted.

Subsequently, the lower court, consequent upon an application to the court for joinder by the 4th respondent herein, made an order that the 4th respondent be joined as 4th defendant in the action.

By a notice of motion filed in the lower court by the 2nd defendant, 2nd defendant sought for an order:

1. Dismissing or striking out this case.
2. Setting aside all orders so far made in this case.

iii.      Such further orders.

The grounds for the application are stated as follows:-

“i.      The court lacks jurisdiction to entertain this case or grant any order therein.

1. The subject matter of the suit is not justiciable being an issue of party primary/nomination for elective post.

iii.      The action is an abuse of court process.

1. The plaintiff has no locus standi to maintain this action.
2. This action is premature.”

Accompanying the motion is a 4 paragraph affidavit sworn to on behalf of the 2nd defendant. I quote paragraph 3 of the affidavit:

“3.     That the 2nd defendant told me and I verily believe as follows:

1. That the decision as to whom the 1st defendant would present for an elective post is exclusively that of the 1st defendant.
2. That the National Convention of the 1st defendant is empowered to consider appeals in respect of nomination of candidates for election as State Governor.

iii.      That the 1st defendant has already nominated the incumbent Governor of Ondo State as its gubernatorial candidate for the forthcoming election at the State Congress held on January 8, 2003.

1. That the plaintiffs are in the minority in their complaint against the nomination of the incumbent Governor of Ondo State for the forthcoming gubernatorial election.
2. That the plaintiffs have failed to appeal to the National Convention of the 1st defendant against the nomination by the State Congress of the incumbent Governor of Ondo State for the 2003 gubernatorial election.
3. That every member of the 1st defendant is expected to loyally accept decisions of the 1st defendant in respect of all matters.”

The 1st defendant also, by notice of motion prayed the court for an order striking out the order made on 23rd January, 2003 and dismissing/striking out the suit on the following grounds:

“1.     This honourable court lacks jurisdiction to entertain the suit the subject matter of same being an internal matter of a registered political party.

2. There is no cause of action against the 1st defendant herein on the face of the statement of claim filed by the plaintiff.”

Finally by another notice of motion in the lower court the 4th defendant prayed the court for:

“a.     an order vacating the interlocutory injunction granted by the honourable court to the plaintiffs on Thursday January 23, 2003.

1. an order striking/dismissing the case of the plaintiff in its entirety.”

and gave the following particulars.

“i.      The order of court without hearing all necessary parties in the action in particular the 4th defendant violates the precondition of due process and fair justice.

1. Plaintiffs have no locus standing to bring this application.

iii.      The cause of action relates to the internal administration of a political party over which the honourable court has no jurisdiction.”

By consent of learned counsel to the parties and the court all three applications were consolidated and argued together.

In a considered ruling, the learned trial Judge granted the application to dismiss/strike out the action of the plaintiff for incompetence only on the ground of its being premature having considered all other grounds and overruled them as untenable.

The lower court also discharged the interim order of injunction, which it had earlier granted.

The plaintiffs being aggrieved by the said ruling have appealed to this court.

1st, 2nd and 4th defendants also felt aggrieved by the ruling and have filed cross-appeals to this court.

The notice of appeal filed by the plaintiffs contains only one ground of appeal, which without its particulars reads thus:

“Ground 1

The lower court erred in law when it held that the appellants failed to exhaust the internal remedial machinery of the 1st respondent before instituting the action.”

The notice of cross appeal of 1st defendant contains two grounds of appeal, which without their respective particulars read thus:

“1.     The learned trial Judge erred in law when he held that he had jurisdiction to entertain this suit which center on the state primary of the Alliance for Democracy in Ondo State which is basically a domestic affair of the party.

2. The learned trial Judge erred in law when he held that the plaintiffs had disclosed cause of action against the 1st defendant.”

The notice of appeal filed by the 2nd defendant contained only one ground which shorn of its particulars runs thus:

“1.     The learned trial Judge erred in law when he held that he had jurisdiction to entertain this case and that the plaintiffs have locus standi.”

The notice of appeal filed by the 4th defendant contains 4 grounds of appeal.

The grounds of appeal will be quoted later in this judgment when dealing with the cross appeal of 4th defendant for reasons which will then become obvious.

The appellants have distilled from the only ground of appeal one issue thus:

“Whether the lower court was right in holding that the appellant’s action was premature in view of paragraph 5 of the party guidelines and regulations for the conduct of party primaries.”

For the 1st defendant/respondent, the issue set out is as follows:

“In the opinion of the 1st defendant/respondent, the only solitary issue for determination in this appeal is whether in anchoring the foundation of their case on the 1st defendant/respondent constitution, party regulations and guidelines, the plaintiffs/appellants are bound by the provisions of the said constitution and guidelines.

The 2nd defendant/respondent formulated one issue from the ground of appeal thus:

“Whether the trial court was right in holding that this action is incompetent for failure on the part of the plaintiffs to exhaust the appeal process in the party constitution before filing this action.”

The 4th defendant/respondent formulated the only issue on the appeal thus:

“Whether the lower court was right in holding that plaintiff/appellant’s letter of protest addressed to the Vice Chairman South West, AD was not in compliance with paragraph 5 of the party’s regulations and guidelines and that such non-compliance rendered the plaintiffs/appellants’ suit premature and therefore incompetent.”

As stated earlier, a peculiar feature of this appeal is that the learned trial Judge upheld only one of several grounds upon which the defendants contend that the court has no jurisdiction to entertain the dispute between the parties and rejected the others.

Plaintiffs/appellants appealed upon that lone ground while the defendants have cross appealed upon the other grounds overruled by the learned trial Judge.

In the event I consider that in the interest of justice, it is fair to couch the lone issue for determination in the main appeal thus:

Assuming that the dispute between the parties is justiciable, whether the learned trial Judge was right in ruling that the suit was premature.

It is enough in the determination of this appeal to look only at the following paragraphs of the statement of claim, which are relevant. They are paragraphs 1,2,3,4,5,7,8,9,10 and 12.

“1.     The plaintiffs are gubernatorial aspirants for 2003 election in Ondo State under the platform of Alliance for Democracy, the 1st defendant.

2. The 2nd defendant is the Chairman of Alliance for Democracy.
3. The 3rd defendant is the electoral body with responsibility of organizing gubernatorial elections in Nigeria.
4. The plaintiffs in pursuit of their gubernatorial ambition obtained the nomination forms, which they duly completed and submitted with the 1st defendant.
5. In furtherance of their gubernatorial bid, the plaintiffs also paid all the mandatory nomination charges and screening fees. The necessary receipts are pleaded. ………………………………………………………………
6. The plaintiff says that the screening of the gubernatorial candidates never took place contrary to the regulations of the party.
7. The plaintiffs state that the 1st and 2nd defendants are preparing to organize party primary election to determine the party’s candidate for gubernatorial election.
8. In defiance of the procedure for presenting a party’s candidate for gubernatorial election, the 1st and 2nd defendants took a decision to exclude the plaintiffs from party primary for gubernatorial election.
9. That plaintiffs protested the decision to exclude them from the primary election in their letter dated 3rd January, 2003 to the Vice Chairman south west zone of the party. ……………………………………………………………
10. The plaintiffs say that screening of candidate is a sine qua non for presenting and endorsing a candidate for gubernatorial election under the 1st defendant’s regulation and guideline.”

It is the submission on behalf of the appellants thus:

The provisions of the regulations and guidelines of 1st respondent i.e. the internal mechanism for settling disputes among members of 1st defendant political party which relate to screening of aspirants for the office of Governor which is to be contested are to be found in paragraph 5 which read thus:

“5.0 Screening

5.1     The screening committee shall ensure that candidates have met all the requirements of the Constitution of the Federal Republic of Nigeria, of INEC or SIEC, of the constitution of the party, and of the approved election guidelines.

5.2     In addition, the screening committee shall ensure that candidates do not carry any encumbrances that may negatively affect the fortunes of the party at the polls.

5.3     The results of the screening committee shall be communicated to the aspirants in writing stating the grounds, if any, for disqualification and the report shall be sent to the national headquarters of the party.

5.4     Appeal against the decisions of the screening committee lies with the State Electoral Appeals Committee.

5.5     The State Electoral Appeals Committee must dispose of appeals on screening not later than two days to the date of primaries.

5.6     Further appeals from the decision of the State Electoral Appeals Committee lies with the National Electoral Appeals Committee. The decision of the National Electoral Appeal Committee shall be final.”

Appellants therefore contend that since there was no pronouncement by the 1st respondent as to the eligibility of plaintiffs/appellants there was no decision upon which plaintiffs could appeal under paragraph 5.4 of the guidelines.

Reliance is placed upon Bamaiyi v. A-G., Federation (2001) 38 WRN 1;(2001) 12 NWLR (Pt. 727) page 468.

It is the contention that the learned trial Judge should not have equated the absence of due protest with situations of failure to give pre-action notice as he did in the ruling.

In the alternative, appellants contend that the letter (copied at pages 21-22 of the record of appeal) by the plaintiffs to the zonal Chairman of the 1st defendant protesting the refusal by the 1st defendant to screen them in defiance of the guidelines amounted to substantial compliance with paragraphs 5.4 to 5.6 of the guidelines.

The submission of 1st, 2nd and 4th defendants can be summarized thus:

Appellants as members of the political party have agreed to be bound by the provisions of the Constitution of the 1st defendant – which include paragraphs 5.1 – 5.6 of the guidelines;they should therefore not have commenced proceedings in court without exhausting the internal machinery provided by 1st respondent for resolving disputes between itself and members – even if there was a justiciable dispute.

Reliance is also placed on Bamaiyi v. A-G., Federation (supra).

It is also contended that it could not be said that the requirements of paragraphs 5.4 and 5.6 of the guidelines have been complied with, when the guidelines did not make provision for petitions to be addressed to the Vice Chairman, South-West Zone of 1st defendant.

In resolving this issue, the first question that needs to be asked is whether it could be said that the failure to conduct a screening exercise for the plaintiffs in their bid to contest for the nomination by the political party 1st defendant as governorship candidates was a decision against which plaintiff ought in accordance with the provisions of paragraphs 5.4 and 5.6 of the guidelines to have appealed.

If the answer to that question is in the affirmative, then the next question would be whether plaintiffs appealed at all.

It is the argument of plaintiffs that they were not in a position to appeal against a non-decision.

A look at paragraphs 7, 8, 9 and 10 of the statement of claim of plaintiffs shows that not only were they complaining against their non-screening but also they regarded the non-screening as a decision of 1st defendant to exclude them from the party primary for the gubernatorial election.

I am convinced that argument of appellants that there was no decision made by 1st defendant cannot, in the face of the statement of claim stand.

This is confirmed by the passage in the letter of complaint to the Vice-Chairman – South-West Zone, Oshogbo (page 21 of record) to the effect that after the plaintiffs had waited in vain for members of the screening committee at the venue of the screening exercise plaintiffs were invited on the same day to another part of the screening venue to be informed that the 1st defendant had zoned the state gubernatorial seat to Ondo North Senatorial District from where the 4th defendant remained the sole gubernatorial aspirant.

I have no doubt that in law, this was a decision – a determination on the issue of screening – Bamaiyi v. A-G., Federation (2001) 38 WRN 1;(2001) 12 NWLR (Pt. 727) page 468.

The decision should have prompted an appeal by the plaintiffs to the organ of the 1st defendant provided by the 1st defendant for the resolution of that dispute i.e. to the Ondo State Electoral Appeals Committee of 1st defendant as required by paragraph 5.4 and then if necessary to the National Electoral Appeals Committee in accordance with paragraph 5.6 of the guidelines.

This, the plaintiffs did not do but went straight to court.

In my humble opinion, the letter of protest to the Vice Chairman, south-west zone could not amount to a substantial compliance with the provisions of the guidelines as now claimed by appellants.

The learned trial Judge was therefore in my opinion right to have compared the situation in hand with a situation in which a party who was required to give a pre-action notice to the other party before coming to court failed to do so and to have ruled that the action in either case would be held to be premature.

The law is that where a statute prescribes a line of action for the determination of an issue, be that issue an administrative matter, or otherwise, the aggrieved party must exhaust all the remedies in that law before going to court – Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at pages 23, 25.

The right and the remedy are given uno flatu and the one cannot be dissociated from the other- Per Lord Watson L.J. in Barraclough v. Brown (1987) A.C at page 622.

In my view the same principles are applicable where parties to an agreement have themselves provided for their rights and remedies in the event of a dispute under the agreement.

In the event, I resolve the sole issue for determination in this appeal against the appellants. I dismiss the appeal.

I now turn to the cross appeals.

First to the cross appeals of 1st and 2nd defendants which can be treated alike. the cross appeal of the 4th defendant requires, in the circumstance a different treatment.

From the two grounds in the notice of appeal, 1st defendant/cross appellant has distilled two issues thus.

“i.      Whether the lower court has jurisdiction of entertains (sic) the suit at all same having to do with domestic affairs of political party and the interpretation of the party’s constitution and regulation.

1. Whether possession of citizenship right to vote and be voted for will ground a cause of action against a party without more when that party has not transaction and owe no obligation to the citizen.” (sic)

For the plaintiff/cross respondent two issues have also been distilled thus:

“1.     Whether the plaintiffs’ suit is justiciable.

2. Whether the plaintiffs’ suit disclose any cause of action.”

For the 2nd defendant/cross appellant only one issue has been distilled for resolution thus:

“Whether the trial court had jurisdiction to entertain this case which concerns only dispute over nomination for election and party primary.”

For the plaintiff/respondent, the issue as formulated by 2nd defendant/cross appellant has been adopted.

In my view all the issues formulated in respect of the cross appeals of 1st and 2nd defendants can be subsumed under one issue thus:

Whether the suit of plaintiff is justiciable being one concerning the internal affairs of a political party.

The arguments of 1st and 2nd cross appellants are along the same lines and can be summarised as follows:

The case of plaintiffs centers upon nomination as the party’s candidates for an elective political post under the platform of 1st defendant.

It is contended that by virtue of sections 40, 221 and 224 of the Constitution of the Federal Republic of Nigeria 1999 and also of section 21 of the Electoral Act, 2002 it is the prerogative of the 1st defendant/cross appellant to conduct or refuse to conduct selective exercise of screening party primaries etc. for aspirants who wish to be sponsored by the 1st defendant for any political office as its candidates to 3rd defendant and that no court of law has the power under the law to decide for 1st defendant on such matters.

Reliance is placed inter alia on:

(i)      Onuoha v. Okafor (1983) NSCC volume 14 page 494; (1983) 2 SCNLR 244,

(ii)     Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) page 564,

(iii)    Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) page 267,

(iv)    Abubakar Rimi v. Peoples Redemption Party (1981) 2 NCLR page 734.

That the courts would only intervene in the affairs of clubs if there is a breach of contract or where there exists a statutory power which gives it power to intervene. Reliance is placed on:

Balonwu v. Chinyelu (1991) 4 NWLR (Pt. 183) page 30.

For the appellant/cross respondent it is contended that:

Paragraph 5 of the regulations and guidelines of 1st defendant/cross appellant confers upon the plaintiffs/cross respondents the right to be screened and participate in the nomination process as the 1st defendant is bound by its own constitution and guidelines and failure to comply amounts to breach of contract.

That it is not the case of plaintiffs that the 1st defendant must nominate or sponsor them; plaintiffs only wish that they be allowed to participate in the screening exercise.

Reliance is placed inter alia, on:

(i)      Manya v. Idris (2001) 8 NWLR (Pt. 716) page 627,

(ii)     Anazodo v. Audu (1999) 4 NWLR (Pt. 600) page 530,

(iii)    Onuoha v. Okafor (1983) 14 NSCC page 494.

I must say straightway that there is no claim in this suit for damages for breach of contract; therefore the contractual aspect can only be looked at from the reliefs claimed by the plaintiffs in the light of the complaint of plaintiffs with regard to the alleged breaches of the Constitution of 1st defendant.

The reliefs claimed by plaintiffs in the writ of summons and the statement of claim are for declarations and injunctions.

The substance of the claim, looked at from whatever point of view and in spite of the protestations of plaintiffs, that can be gathered from paragraphs 4, 7, 8, 9 and 10 is that each of them seeks participation in the screening exercise and the party primaries of 1st defendant for the sole purpose for being nominated for the political office of Governor of Ondo State.

The following are not in doubt

(i)      Under the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2002 the sole discretion as well as the decision as to which candidate the 1st defendant would sponsor for that post is vested entirely in the1st defendant acting by the will of the majority of its members not the 3rd defendant i.e. electoral commission nor the courts because it is a political question for which authorities abound that the courts are not qualified to intervene in. A court of law would not select for a political party a candidate for the party at an election. It is the party, which has the responsibility to campaign and canvass for votes for the candidates of its choice – section 221 of the 1999 Constitution.

(i)      Onuoha v. Okafor (1983) 2 SCNLR 244;(1983) 14 NSCC 494,

(ii)     James Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) page 564,

(iii)    Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) page 267,

(iv)    Balonwu v. Chinyelu (1991) 4 NWLR (Pt. 183) page 30.

I find in the circumstance that the matter brought by the plaintiffs was one on which the lower court lacked jurisdiction as the suit is not justiciable. It is not a matter that can be said to come within section 6(6)(b) of the 1999 Constitution.

The lower court in the circumstance came to the right decision in declining jurisdiction but for the wrong reason that the suit was premature when it in fact lacked jurisdiction to entertain the suit and ought to have struck the suit of plaintiffs out for the latter reason.

An appellate court would not interfere with the right decision of a lower court arrived at but on a wrong reason – an appellate court is concerned mainly with the decision arrived at by the lower court on the subject of challenge on appeal.

Balonwu v. Chinyelu (supra) at page 37.

In the event, the cross appeals of 1st and 2nd cross appellants succeed and are allowed.

I now turn to the cross appeal of the 4th defendant.

The 4th defendant appealed against the ruling of the lower court on four grounds thus:

“1.     The court erred and misdirected itself when it failed to dismiss the plaintiff’s action in its entirety for want of cause of action.

2. The court erred and misdirected itself when it held that the screening of the plaintiffs is required under the rules and guidelines guiding nomination of candidates.
3. The court erred and misdirected itself when it held that it had jurisdiction to entertain plaintiffs’ cause of action.
4. The court erred and misdirected itself when it heard and ruled on the motion for interlocutory injunction without notice to the 4th defendant in spite of the 4th defendant’s motion for joinder and stay of further proceedings dated 9th January, 2003.”

The 4th defendant/cross appellant has in his brief of argument on his cross appeal formulated four issues for determination in this appeal – i.e. an issue on each ground of appeal contained in the notice of appeal.

Before attempting to set out the issues however, it is necessary first to consider and rule upon the objection raised in the brief of appellants/cross respondents on the four grounds of appeal of 4th defendant earlier set out in this judgment.

It is the contention of plaintiffs/appellants that all the grounds of appeal filed by the 4th cross appellant are incompetent in that each ground alleges an error in law and also a misdirection and so should be struck out.

Reliance is placed on Egesie v. Elele (2001) 8 NWLR (Pt. 716) page 582.

The response of Wole Adebayo, Esq. learned counsel for 4th cross appellant at the oral hearing in this court was that this court should discountenance the objection to the grounds of appeal.

Order 3 rule 2 of the rules of the Court of Appeal, 2002 provides thus:

“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.”

In my respectful view, the word “or” in the provision of the rule in each case in which it is written is intended to be read disjunctively and not conjunctively.

The rule is therefore intended in my view to be interpreted thus:

“If the grounds of appeal allege misdirection, the particulars and the nature of the misdirection shall be clearly stated; if the grounds of appeal allege error in law, the particulars and the nature of the error shall be clearly stated.”

Each of the grounds of appeal complain both of error and of misdirection.

The word “misdirection” is defined at page 902 of Black’s Law Dictionary 5th edition as:

“An error made by a Judge in instructing the jury upon the trial of a cause”, while the word “error” is defined at page 487 of the same dictionary as:

“a mistaken judgment or incorrect belief as to the existence or effect of matters of fact; or a false or mistaken conception or application of the law.”

As framed by the cross appellant each of the grounds of appeal does not separate either in the grounds or in the particulars, which decision relates to matters of law and which relates to matters of fact.

As this is an appeal on an interlocutory ruling, it is obvious that leave of the court below or of this court needs be sought for and obtained under section 242 of the Constitution of the Federal Republic of Nigeria in respect of those decisions which touch upon the alleged misdirections as to facts.

Even if it can be argued that by its nature the decision touches upon jurisdiction, and as such is a final decision, it is still necessary to distinguish as to decisions and particulars on alleged errors in law and decisions and particulars on alleged misdirection of facts. This is because on matters of fact, it is the law that the powers of this court on facts are strictly limited.

What the learned counsel for the appellant (Mrs. Adesina) is saying, and I agree with her, as it represents the correct practice, is that it is the duty of the cross appellant as required by rules of court, to do the surgical operation of separating what decisions of the lower court are alleged to be errors of law from those decisions which are alleged to be misdirections on fact. That, that duty is not for this court to perform.

In the event, I agree with the submission of learned counsel for the appellants that it is not competent in one ground of appeal to complain of a misdirection and also of an error at the same time within the context of order 3 rule 2 and that such ground ought to be struck out.

(i)      Paul Nwadike AND2 Ors. v. Cletus Ibekwe AND 2 Ors. (1987) 4 NWLR (Pt. 67) page 718 at 744,

(ii)     Okeke Amadi v. Okeke Okoli (1977) 7 S.C 57.

In the event, I hold that each of the four grounds contained in the notice of cross-appeal of 4th defendant is incompetent. I strike them out.

I also strike out the brief of argument of 4th respondent/appellant which is founded upon the ground of appeal.

In the event, I strike out the cross appeal of the 4th respondent.

In summary, I dismiss the appeal as lacking in merit.

I allow the appeals of 1st and 2nd respondents respectively.

I strike out the appeal of 4th respondent.

I hereby strike out the suit in the lower court.

I make no order as to costs.

GEORGE ADESOLA OGUNTADE, JCA.

I read before now a copy of the lead judgment by my learned brother Oduyemi JCA. I agree with his reasoning and conclusions.

I would also make the same orders as in the lead judgment.

IBRAHIM TANKO MUHAMMAD, JCA.

I read before now, the judgment of my learned brother, Oduyemi, JCA. I am in complete agreement with him that the main appeal is unmeritorious and should be dismissed. I hereby dismiss the appellant’s appeal. The cross appeal of the 1st and 2nd defendants has merit and is allowed by me as well. In respect of the 4th defendant/cross appellant’s cross appeal, the objection raised against the fours grounds of appeal as incompetent is sustained by me. I agree with my brother when he struck out the four grounds of appeal and the brief of argument of respondent/appellant in respect of these four grounds. The 4th respondent’s cross appeal is hereby struck out. Consequent upon this, the suit before the lower court is hereby struck out. No order as to costs.

Cases referred to in the judgment

Amadi v. Okoli (1977) 7 S.C 57.

Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530.

Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) 564.

Balonwu v. Chinyelu (1991) 4 NWLR (Pt. 183) 30.

Bamaiyi v. A-G., Fed. (2001) 38 WRN 1;(2001) 12 NWLR (Pt. 727) 468.

Barraclough v. Brown (1987) A.C 622.

Egesie v. Elele (2001) 8 NWLR (Pt. 716) 582

Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1.

Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) 267.

Manya v. Idris (2001) 8 NWLR (Pt. 716) 627.

Nwadike v. Ibekwe. (1987) 4 NWLR (Pt. 67) 718.

Onuoha v. Okafor (1983) 2 SCNLR 244;(1983) 14 NSCC 494.

Rimi v. Peoples Redemption Party (1981) 2 NCLR 734.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria 1999 Ss. 6(6)(b), 40, 221, 224 AND 242.

Electoral Act, 2002 s. 21.

Rules of court referred to in the judgment

Court of Appeal Rules 2002 Or. 3 r. 2.

Book referred to in the judgment

Blacks Law Dictionary 5th ed. p. 489.