MINISTER OF YOUTH AND SPORTS & ORS v. GUSAU (2020)

MINISTER OF YOUTH AND SPORTS & ORS v. GUSAU

(2020)LCN/14572(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/A/CV/518/2020

RATIO

PLEADINGS: NOTICE OF DISCONTINUANCE.

I think it is necessary to reproduce the provisions of Order 24 of the High Court of the Federal Capital Territory (Civil Procedure Rules) 2018 which provides for the discontinuance of a civil suit pending in the Court. The said Order 24(1) – (5) provides as follows:
“24
1. The Claimant may at any time before receipt of the defence or after the receipt, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the Defendants or withdraw any part or parts of his claim, He shall pay the defendant’s costs of action, or if the action be not wholly discontinued, the costs occasioned by the matter withdrawn.
2. A discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent claim. (Emphasis Mine).
3. where a Defence has been filed, the Claimant may with the leave of the Court discontinue the proceedings or any part on such terms and conditions as the Court may order.

Where a proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this order, no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Court have been fully complied with.
5. The Court may in the same manner and discretion as to terms, upon the application of a Defendant order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out.
When a cause is ready for trial, it may be withdrawn by either claimant or the defendant upon producing to the registrar a consent in writing signed by the parties and thereupon the Court shall strike out the matter without the attendance of the parties or their legal practitioner.”
A careful reading of the provisions of Subsection (1) and (2) as reproduced above which in my opinion applies to the case at hand reveals that:
i. Leave is not required in filing a Notice of Discontinuance at any time before receipt of the defence or after the receipt of defence, before taking any other proceeding in the action,
ii. A Discontinuance or Withdrawal, as the case may be, shall not be a defence to any subsequent claim.
iii. Looking further at subsection 3, one may be confused as to seeking the leave of Court to discontinue a matter once defence is filed but it is clear that such leave can only be sought once any step has been taken after the filing of the defence as provided for under subsection 2. However, once any step has not been taken, leave of Court is not required.
iv. The said Notice as embodied in Subsection 1 and 2 does not necessarily take the form of a Motion unlike the type that would be required while seeking leave as embodied in subsection 3.

Now what is the effect of this Notice of Discontinuance?
In the case of EMGHARA VS. HEALTH MANAGEMENT BOARD IMO STATE (1987) 2 NWLR (PT. 56) 330 AT 339 – 340, it was held that a notice of discontinuance, once it is filed, the whole suit is deemed to have come to an end and does not require to be formally argued as a motion. (Emphasis Mine).
The Supreme Court also held in the case of EKUNDANO VS. KEREGBE (2008) 4 NWLR (PT. 1077) 422, that-

“A Plaintiff may, without leave of Court, discontinue a Suit against all or any of the defendants, or withdraw any part of his claim before the date fixed for hearing. In such a situation the notice of withdrawal automatically terminates the proceedings…”
I would agree with the Learned Trial Judge that the filing of the Notice of Discontinuance Exhibited in Page 50 of the Record of Appeal puts an automatic end to the action against the Appellants at the High Court of the Federal Capital Territory and any pending processes in the action cannot, in my own view, hinder the termination of the action against the Appellants.
What is left to be done shall be for the High Court of the Federal Capital Territory, Abuja to formally enter an order striking out the action against the Appellants which, in my strong view, is a matter of course or mere formality.
Neither the trial Court nor any of the parties can stand in the way of the discontinuance of the action against the Appellants as contained in the said Exhibit in Page 50 of the Record of Appeal.
At the stage of filing the Notice of Discontinuance, the duty of the High Court of the Federal Capital Territory is to confirm the action before it dead in favour of the Respondent. So, whenever the action is called before the said Court, its attention may be drawn to the pendency of the Notice of Discontinuance on which it will perform the required hearing of pronouncing the demise of the action against the Appellants by an order striking it out without more. See also the case of EZEONU VS. AGHEZE (1991) 4 NWLR (PT. 187) 631 AT 642 TO 643 wherein the Court held as follows:
“Since the real quarrel in this matter started from the notice of discontinuance, I might as well start from it. And that takes me straight to Order 22 of the High Court Rules of Anambra State. Order 22 has eight rules. The notice of discontinuance was brought under Rule 1. For ease of reference, let me produce verbatim ad literatim the rule:
“The plaintiff in an action may without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than the day preceding the day the action is first set down for hearing by filing in the Court registry a notice to that effect. The Registrar shall cause a copy of the notice to be delivered to the defendant as early as possible.”
This rule can only be invoked where the matter is not yet set down for hearing. By the rule, if the matter is to come up the following day, the notice could be filed today. That is of course/ the last day that the notice under the rule could be filed. That is the meaning of the expression “not later than the day preceding the day the action is first set down for hearing.” When the notice of discontinuance is statutorily given by the plaintiff, the next procedure is for the Registrar to cause a copy of the notice to be delivered to the defendant. Although the rule does not specify the time limit within which the notice of discontinuance should be delivered to the defendant, it is my feeling that the rule intends a situation where the defendant receives the notice before the return date of the case or before the date the matter is to come up. That to me, appears to be the interpretation of the expression “as early as possible.” In my view the rule wants to avoid a situation where a defendant comes to Court only to meet a notice of discontinuance without the plaintiff. The rule will not like the defendant to incur unnecessary expenses in coming to Court. What happens next when the Registrar has caused the notice to be delivered to the defendant? I have partly answered the question, I might as well complete it. Following the clear intention of the rule, the defendant is not expected to be in Court. He is expected to regard the matter as coming to an end as far as the particular suit is concerned. Of course, the plaintiff cannot in law recall the notice. See Chief Obienu and Others v. Chief Orizu and Others (1972) 2 E.C.S.L.R. 606….”
This brings me to the import of a Notice of Discontinuance.
Discontinuance means the termination of a law suit by the Plaintiff; voluntary dismissal or non-suit. The notice has the effect of the plaintiff removing the suit and put to end the questions sought to be determined at the Trial Court. The Rules of Court provides for Notice of discontinuance with a regime of the order to be made depending on the stage of proceedings. Usually before issues are joined, it requires the filing of a Notice of discontinuance but when issues have been joined or the matter has gone into hearing, then it should be by way of Motion on Notice for discontinuance and in such situations, the Court can impose conditionalities for discontinuing the suit. Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued.
The Supreme Court in the case of OGUNKUNLE VS. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT. 727) 359 held:
“A discontinuance in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them whom the action has been discontinued without further intervention from the Court.” The Applicant has failed to understand the import of the mere filing of the Notice of discontinuance. The situation can be likened to a corpse in the mortuary waiting to be buried on a latter day. It cannot be withdrawn nor can any legal step be taken on the matter except burial formalities and burial ceremonies are not in the interest of the dead but for the health of the society that demands that the dead must be properly buried. The Court must not end the matter formally by an order. The idea of filing an objection to require a hearing is uncalled for. All the defendant needs to do is to demand for conditions to be placed on the withdrawal because the Court cannot take any step in the matter other than those necessary for formally terminating the suit, once the notice is filed. The Court and the other party cannot force the plaintiff to continue with the suit. The essence of the requirement to either file just a notice or a motion on Notice is dependent on the stage of proceedings and to allow the Court make certain orders when the matter has gone to a particular stage. It is not to allow a defendant contest the discontinuance. No, not at all. The Applicant further argued that the suit did not automatically cease, the question is whether in law, the matter was alive? Once the notice is filed, the matter has legally ceased and it would not matter whether the final order was made one year later.” (Emphasis Mine).

Considering my foregoing outlook on the issue and the authorities as I have cited above, I am of the unshaken view that the Learned Trial Judge was right when he held that he had jurisdiction to entertain the matter since there is no pending or similar matter pending before the High Court of the Federal Capital Territory, a Notice of Discontinuance having been properly filed and served on the Appellants. I am also of the well-considered view and from my findings articulated above, that the said suit leading to this Appeal does not constitute an abuse of Court Process. Per MOHAMMED BABA IDRIS, J.C.A

RATIO

PLEADINGS: JOINDER OF PARTIES.

The principles guiding the joinder of parties are as follows:
1. Is the cause or matter liable to be defeated by the non-joinder?

Is it possible for the Court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter? See: GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480, (1987) 2 N.S.C.C. VOL. 18 (PART II) 1115 AT 1127; UKU VS. OKUMAGBA (1974) 1 ALL NLR (PT. 1) 475; PEENOK INVESTMENTS LTD VS. HOTEL PRESIDENTIAL LTD (SUPRA); UGORJI VS. ONWU (1991) 3 NWLR (PT. 178) 177.
The law governing joinder of parties makes it explicitly clear that except where there are questions in proceedings, which cannot be effectively and completely settled without the presence of a party only then can such a party be joined in an action. Apart from that, the Respondent did not have any cause of action or reliefs against the Athletics Federation of Nigeria (AFN) to have warranted joining it in the suit.
In AJAYI VS. JOLAYEMI (2001) 10 NWLR (PT. 722) PAGE 516 AT 537 – 538. The Supreme Court held thus:-
“The principle guiding joinder of parties as provided in our various rules of Court has received judicial interpretation in our Courts and Courts of other common law jurisdiction. The purpose of the rules is to allow a plaintiff to proceed in the same action against whom he alleges to be entitled to any relief whether his claim is brought against the defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative… It is improper to join as co-defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim….”

The Athletics Federation of Nigeria was indeed not a party in the case. Not being a party in the action of the Respondent as framed in the Originating Summons, there was no obligation on the part of the Trial Court to have declined the jurisdiction which it indeed has to adjudicate over the suit leading to the Appeal.
Consequently, failure to join the Athletics Federation of Nigeria (AFN) in the action was not fatal to the case of the Respondent at the trial Court to the extent of depriving the Trial Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, as a nullity.

For the same reason, the accusation of the Appellants that the Trial Court cannot make any orders or grant reliefs against the Athletics Federation of Nigeria since it is not a party to the suit is misconceived as there was no order or reliefs granted in favor of the Athletics Federation of Nigeria but in favor of the Respondent and against the Appellants. In conclusion, it is therefore my findings that not only did the Trial Court make no orders against the Athletics Federation of Nigeria, the Athletics Federation of Nigeria is not a necessary party to be joined in the suit. Per MOHAMMED BABA IDRIS, J.C.A

RATIO

PLEADINGS: GROUNDS OF APPEAL.

It should be noted that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing or the appellant or the aggrieved party. See the case of EHINLANWO VS. OKE (2008) LPELR – 1054 (SC).

Furthermore, a ground of appeal must relate to the decision appealed against and should complain against the ratio in the decision.
It is trite law that a ground of appeal that is not related to the decision or that is based on a suggesto falsi is incompetent and not valid for consideration. See the case of SARAKI & ANOR VS. KOTOYE (1992) 11/12 SCNJ 26. Where a ground of appeal framed and formulated on the assumption that the Court below had determined an application on the basis of the provisions of S.227 of the Evidence Act, when it did not, was held to be incompetent.
In conclusion therefore, having made my findings, I have no other option than to agree with the argument of learned Counsel to the Respondent contained in paragraphs 3.1 – 3.8 and paragraphs 6.1 – 6.3 of the Respondent Brief of Argument that the said Ground of Appeal is incompetent not having emanated from the judgment of the Trial Court.
The said Ground of Appeal is hereby struck out. Having struck out the said Ground 5, it follows therefore that all argument under issue five becomes irrelevant. Per MOHAMMED BABA IDRIS, J.C.A

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HON. MINISTER OF YOUTH AND SPORTS 2. FEDERAL MINISTRY OF YOUTH AND SPORTS DEVELOPMENT 3. PRINCE ADISA ABEYIOKU 4. MR OLAMIDE GEORGE APPELANT(S)

And

HON. ENGR IBRAHIM SHEHU GUSAU (PHD) RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A: (Delivering the Leading Judgment): By an Originating Summons dated and filed on the 6th February, 2020, the Respondent as Plaintiff at the trial Court instituted an action against the Appellant who were the defendants at the trial Court respectively.
The Respondent raised three questions for determination by the Trial Court as follows:
1. Whether by virtue of Section 40 of the 1999 Constitution of Federal Republic of Nigeria (as amended), Article 8.6.8 and 8.1.9 of the Constitution of the Athletics Federation of Nigeria 2017, the 1st and 2nd Defendants can unilaterally direct and/or remove the Technical Director of the AFN, who is a member of the Board and an appointee of the Plaintiff.
2. Whether by virtue of the Article 8.22 of the Constitution of the Athletics Federation of Nigeria, 2017, the 2nd and 3rd Defendants can without the directive or consent of the Plaintiff convene a Board meeting?
3. Whether by Virtue of the Article 8.2.2 of the Constitution of the Athletics Federation, 2017, the Purported Parallel Board meetings convened by the 3rd and 4th Defendants on the 3rd December, 2019 as well as on the

23rd of January, 2020, wherein they purport to have suspended and removed the Plaintiff as the President of AFN is valid?
AND sought for the following reliefs against the Defendants jointly and severally:
1. A DECLARATION of the Court that the directive of the 1st and 2nd Defendants to the Plaintiff for the removal of the Technical Director of the Athletics Federation of Nigeria (AFN), who is appointed by the Plaintiff as well as his removal as a member of the Board of AFN is Ultra Vires the powers of the 1st and 2nd Defendants and; amounts to an interference with the internal management and administration of the AFN.
2. A DECLARATION of the Court that by virtue of Article 8.6.5 and Article 8.6.8 of the Constitution of the AFN, the powers to appoint Technical Director and any committee is vested solely in the Plaintiff as the President of the AFN.
3. A Declaration of the Court that by virtue of Article 8.1.9 of the Constitution of the AFN, members of the Board of AFN, including the Plaintiff as President can only be removed by the elective Congress of the AFN.
4. A Declaration of the Court that by virtue of Article 8.2.2 of the

Constitution of the AFN; Board meetings of AFN, can only be called on the directive of the Plaintiff as the President of AFN.
5. A DECLARATION of the Court that the purported Board meeting convened by the 3rd and 4th Defendants on the 3rd December, 2019 without the directive of the Plaintiff and as well as every other resolution/action purported to have been reached or taken in the said meeting are invalid, null and void.
6. A DECLARATION of the Court that the purported suspension of the Plaintiff at the parallel meeting held on the 3rd of December, 2019 in Abuja by the 3rd and 4th Defendants, as well as the purported investigation committee set up by the 3rd and 4th Defendants contrary to the provisions of Articles 8.2.2 and Article 8.6.5 of the Constitution of AFN are illegal, null and void.
7. A DECLARATION of the Court that the purported meeting of the AFN convened by the 3rd and 4th Defendants on the 23rd of January, 2020 as well as the purported impeachment of the Plaintiff at the said meeting is invalid, null and void for being in contravention of Articles 8.2.2 and 8.1.9 of the Constitution of the AFN.
8. A DECLARATION of the Court

that the Plaintiff is the President and the head of the Athletics Federation of Nigeria.
9. AN ORDER of the Court setting aside the purported directive of the 1st and 2nd Defendants, removing Mr. Sunday Adeleye as the Technical Director of Athletics Federation of Nigeria and a member of the Board of the AFN.
10. AN ORDER of the Court setting aside the purported Board meetings of the 3rd December, 2019 and 23rd December 2020 as well as all the resolutions reached in the said meeting which include the purported suspension of the Plaintiff as the President of the Athletics Federation of Nigeria and the purported subsequent impeachment of the Plaintiff as President of AFN, for being in contravention of Articles 8.22 and 8.19 of the Constitution of the AFN, 2017.
11. AN ORDER of the Court to set aside the purported appointment of the 4th Defendant as the acting President of the Athletics Federation of Nigeria at the meeting of 3rd December, 2019.
12. AN ORDER of the Court setting aside the purported investigation Committee set up by the 3rd and 4th Defendants to investigate the 1st Plaintiff as well as its findings/Report.
13. AN ORDER of

Perpetual Injunction restraining the 1st and 2nd Defendants either by themselves, agents, proxies and cronies from further interfering, interloping or meddling into the internal management and administration of the affairs of the Athletics Federation of Nigeria.
14. AN ORDER of Perpetual Injunction restraining the 1st and 2nd Defendants either by themselves, agents, proxies and cronies from dealing with or recognizing the 4th Defendant or any other person, other than the Plaintiff as the President and the administrative head of the Athletics Federation of Nigeria.
15. AN ORDER of Perpetual Injunction restraining the Defendants from taking any or further action/steps that undermines the powers of the Plaintiff under the Constitution of the AFN as the President including the power to convey congress of the AFN or elective progress of AFN.

On the other hand, the Defendants (now Appellants) by a Motion on Notice dated the 11th of March, 2020 and filed on the same date, challenged the jurisdiction of the Trial Court to hear the matter on the ground that the Respondent filed the same action before the High Court of the Federal Capital Territory and

the said action was still pending. However, after considering evidence before it, the Trial Court subsequently held that it had the jurisdiction to entertain the suit.

Before going into the appeal, below is a summary of the facts involved in this Appeal.

It is the claim of the Respondent at the Trial Court that the 1st and 2nd Appellants despite the provisions of the Constitution of the Athletics Federation of Nigeria (AFN) directed and removed one Mr. Sunday Adeleye, an elected board member of the AFN from his appointment as the Technical Director as well as his removal from the Board of the AFN.

The Respondent claims that he informed the 1st Appellant that the said Sunday Adeleye being an elected board member of the AFN, can only be removed by the Congress who elected him into the Board in accordance with the AFN Constitution but the Response did not go down well with the 1st and 2nd Appellants.

The Respondent further claims that the 1st and 2nd Appellants on the 7th of November, 2019 directed the redeployment and removal of the then Secretary General; Adamu Elijah Ameh, who they felt was not doing their bid and replaced him with the 3rd

Appellant.

The Respondent also claims that ever since the redeployment of the 3rd Appellant as the Secretary General of AFN, he has refused to heed to any directive from him and calls for meetings on his own, contrary to the procedures of calling meetings as contained in the constitution of the AFN.

The Respondent claims that on the 2nd of December, 2019 the 1st and 2nd Appellants wrote to him, conveying the immediate removal of Mr. Sunday Adeleye as the Technical Director of AFN and from the Board of AFN even though he had earlier informed them of the appropriate procedure for removal of a Board member under the AFN Constitution.

The Respondent claims that Article 6.1.2 of the AFN Constitution empowers him as the President of the AFN to convene Congress of the AFN while article 8.2.1. of the same Constitution empowers him also to call for Board meetings at least once every quarter at any time he considers necessary.

The Respondent also claims that by Article 8.2.2 of the AFN Constitution, the Board meetings of AFN can only be called under his directive which he always gave in writing.

The Respondent claims that while the Board meeting

of the AFN was going on in Akwa, Anambra State as scheduled, the 3rd and 4th Appellants in Connivance with the 1st Appellant held a Parallel Board meeting of the AFN in Abuja on the 3rd of December, 2019 without his consent or directive as provided in the AFN Constitution.

The Respondent claims that the only directive he gave for the convening of the Board meeting of AFN at Akwa, Anambra was given in writing on the 4th of November, 2019 and to the then Secretary General of AFN Adamu Elijah Ameh who called for the meeting on the 5th of November, 2019.

The Respondent also claims that the 3rd and 4th Appellants in connivance with the 1st and 2nd Appellants purportedly suspended him and appointed the 4th Appellant as its acting President in the said parallel Board meeting which was held without his directive.

The Respondent further claims that the 3rd and 4th Appellants at the Parallel meeting, usurped his powers to set up an investigation Committee to investigate him in a bid to remove him as the President of the Association.
The Respondent also claims that the 3rd and 4th Appellants also in disobedience to the Constitution of the AFN conveyed

and held a second Board meeting of the AFN without his directive.

The Respondent at the trial Court attached the following exhibits to the affidavit in support of the Originating summons as follows:
1. Exhibit A – The Constitution of the AFN
2. Exhibit B – National Sports Federation Code of Governance.
3. Exhibit C – Letter of Removal of Sunday Adeleye with reference Number FMYSD/PS/2475/2
4. Exhibit D – Letter of Redeployment of Adamu Elijah Ameh
5. Exhibit E – Letter Conveying the Removal of Mr. Sunday Adeleye.
6. Exhibit F1 and F2 – Letter Conveying Directive of the Respondent and invitation letter sent out by Adamu Elijah Ameh for the Congress.
7. Exhibit G – A letter for the Board meeting called in Akwa.
8. Exhibit H – A copy of the resolutions reached at the Parallel Board meeting.
9. Exhibit I – A copy of the Resolution to remove the Respondent as the President of the AFN.

The Appellants also attached the following exhibits in support of their Counter Affidavit to the Originating Summons and the further and better counter affidavit respectively

as follows:
1. Exhibits FMYSD1 AND FMYSD2 – The resolution suspending and impeaching the Respondent.
2. Exhibit FMYSD3 – Constitution of the IAAF.
3. Exhibit FMYSD4 – The IAFF Disputes and Disciplinary Proceedings Rules.
4. Exhibit FMYSD5 – Correspondence between the Respondent and the Secretary General.
5. Exhibit FMYSD6 – Payments made to AFN under the Respondent from 2017- 2019
6. Exhibit FMYS 1A – Judgment of the Court of Arbitration for Sports.

On the 17th of June, 2020, the parties adopted their respective processes and argued the addresses in support of same.

After considering the processes and arguments by parties, the Learned Trial Judge, Honourable Justice A. I. Chikere delivered judgment in the Suit No. FHC/ABJ/CS/113/2020 on the 1st July, 2020 wherein the trial judge granted judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated 6th, July, 2020 comprising of Six (6) grounds of appeal.

The parties in the appeal before this Court filed and exchanged their respective briefs of

argument.

In the Appellants’ brief of argument as settled by their counsel Muhammed Danjuma Alhassan Esq. and dated 14th July, 2020 and filed on the same date, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Learned Trial Judge was right when he held that he had Jurisdiction to entertain the suit despite the pendency of a similar suit at the High Court of the Federal Capital Territory. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the Learned Trial Judge was right when she held that there was no law requiring the Respondent to exhaust internal administrative remedies before instituting the present suit before the Federal High Court and that the International Association of Athletics Federation (IAFF) Constitution only binds member Countries and not individuals. (natural persons). (Ground 2 and 4).
3. Whether the Learned Trial Judge was right when he made orders against the Athletics Federation of Nigeria who are not parties to the Suit. (Ground 3).
4. Whether the Trial Judge was right when she held that the meeting convened by the 3rd and 4th Defendants

on the 3rd of December, 2019 without the Plaintiff was a contravention of the existence of Exhibit 5. (Ground 5).

On Issue One, the Appellants’ Counsel argued that the Learned Trial Court failed to properly evaluate the facts and circumstances of this case in line with the affidavit evidence presented before arriving at his decision to assume jurisdiction to entertain and determine the suit.

The Appellants’ Counsel also argued that the Federal High Court and the High Court of the Federal Capital Territory are Courts of co-ordinate jurisdiction and ought to avoid any situation that could lead to both Courts entertaining matters by the same parties on the same subject matter at the same time. On this point, counsel cited the case of NIGERIA INTERNATIONAL MERCHANT BANK LIMITED VS. UNION BANK OF NIG LTD (2004) 12 NWLR (PT. 888) 599.

The Appellants’ Counsel argued that the Respondent filed Suit No. CV/847/2020 at the High Court of the Federal Capital Territory but filed a Notice of Discontinuance and the suit leading to this Appeal after the Appellants filed a Notice of Preliminary Objection and Counter affidavit.

The Appellants’ Counsel further argued that contrary to the position of the Learned Trial Judge, a party cannot discontinue a suit as of right once the opposing party has filed a defence to the suit or joined issues with that party. That such discontinuance can only be made with the leave of Court and such leave was neither sought nor obtained.

The Appellants’ Counsel also urged the Court to hold that Suit No. CV/847/2020 was still pending at the time the suit leading to Appeal was instituted. Counsel also argued that if this Court should agree that the said suit was still pending, then it becomes obvious that it is an abuse of Court process and should be dismissed. On this Point, counsel cited the case of NIGERIA INTERNATIONAL MERCHANT BANK LIMITED VS. UNION NBANK OF NIGERIA LIMITED (SUPRA).

On Issue Two, the Appellants’ Counsel argued that aside from the IAAF Constitution and Disciplinary Procedure Rules, the National Sports Federation Code of Governance in Article 19.1.2 gives the Board of the AFN the Power to put in place appropriate procedures to address Complaints and Appeals which the Respondent never explored. Counsel further

argued that the Learned Trial Judge therefore erred when he held that there was no law requiring the Respondent to exhaust internal administrative remedies before instituting the matter at the Trial Court.

The Appellants’ Counsel also argued that the IAAF Disciplinary Procedure Rules apply to the Respondent even though the Trial Court failed to refer to it in its Judgment when it held that the 1AAF Constitution only binds Countries and not individuals. On this Point, he cited Section 60, Section 1 and Section 3 of the IAAF Disciplinary Procedure Rules.

The Appellants’ Counsel further argued that the AFN being an affiliate of IAAF is bound by the Rules of dispute Resolution mechanism and that the absence of a dispute resolution mechanism in the AFN Constitution is not an omission because the procedure is already embedded in the IAAF Constitution. The Appellants’ Counsel cited the case of BODUNDE VS. STAFF COOPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED (2013) 12 NWLR (PT. 1369) 197, 223F.

In conclusion on this Issue, the Appellants’ Counsel argued that the failure of the Respondent to explore internal dispute,

mechanism set up by the AFN Rules, IAAF Constitution and its Disciplinary Procedure Rules has robbed the Trial Court of jurisdiction.

On Issue Three, the Appellants’ Counsel argued that from the Reliefs Sought by the Respondent the Court was also invited to interpret the Constitution of the Athletics Federation of Nigeria and the Athletics Federation of Nigeria ought to have been made a party to the suit at the Trial Court as a Court cannot make orders for or against any individual who is not a party in the suit. On this point, counsel cited the case of UNITED FOAMS PRODUCTS (NIG) LTD & ORS VS. OPOBIYI & ANOR (2017) LPELR – 43166 (CA).

The Appellants’ Counsel also argued that the effect of the failure to join the Athletics Federation of Nigeria as a party to this suit is that the Trial Court is bereft of jurisdiction to entertain and determine same. On this point, he cited the case of AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) 522 AT 533.

On Issue Four, the Appellants’ Counsel argued that the content of Exhibit 5 is unambiguous. Counsel also argued that the Trial Court failed to address and avert its

mind to Exhibit 5 but merely mentioned that it was the contention of the Defendants that it was the Respondent who called for the Board meeting of the 3rd December, 2019 at Abuja and abandoned the meeting when he learnt that he was going to be questioned on allegations of misconduct. He further argued that the failure to make pronouncement on the Exhibit has caused a miscarriage of Justice to the Appellants.

The Appellants’ Counsel also argued that the Trial Judge failed to do proper evaluation of the evidence before he held that the Board meeting on the 3rd December, 2019 in Abuja illegal and thus he was merely speculating. On this point counsel cited the case of ILORI VS. TELLA (2006) 18 NWLR.

In conclusion on this Issue, the Appellants’ Counsel argued that the failure of the learned Trial Judge to make proper evaluation of Exhibit 5 raises the presumption that there was no fair hearing at the Trial.

In the Respondent brief of argument as settled by his counsel Chinedu G. Udora Esq. and dated 24th July, 2020 and filed on the same date, the following issues for determination were distilled from the grounds of appeal as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the Trial Court had Jurisdiction to entertain this suit? (Ground 1 and 3)
2. Whether the learned Trial Judge was right when she held that there was no law requiring the Respondents to exhaust internal administrative remedies before instituting the present suit before the Federal High Court and that the International Association of the Athletics Federation (IAAF) Constitution only binds member countries and not individuals (natural persons). (Ground 2 and 4)
3. Whether the Trial Judge was right when she held that the meeting convened by the 3rd and 4th Defendants on the 3rd of December, 2019 was a nullity?

On Issue One, the Respondent’s Counsel argued that the Trial Court had the requisite Jurisdiction to entertain the suit as same is not an abuse of Court process neither is it defeated by the non-joinder of Athletics Federation of Nigeria who is not a juristic person capable of suing or being sued and whom the Respondent did not seek any relief against before the Trial Court.

The Respondent’s Counsel also argued that the Suit No. CV/847/2020 was terminated by the Respondent before filing the suit leading to this

Appeal by filing and serving a Notice of discontinuance and that the filing and service of a Notice of Discontinuance brings an action to an end without any further order from the Court. On this point, counsel cited the case of ARCHIANGA VS. A. G. AKWA IBOM STATE (2015) 6 NWLR (PT. 1454) PAGE 1.

The Respondent’s Counsel further argued that the suit leading to this Appeal is not an abuse of Court process having commenced after the filing and service of the Notice of Discontinuance on the Appellants.

The Respondent’s Counsel also argued that the Trial Court did not make any order against the AFN but against the unlawful actions of the Appellants which undermine the powers of the Respondent as the President of the AFN.

The Respondent’s Counsel argued that the argument of the Appellants’ Counsel that a party cannot discontinue a suit as of right once the opposing party has filed a defence to the issue or joined issues with that party is misconceived. Counsel further argued that Order 24 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018 contemplates three scenarios for termination of suit by

Notice of Discontinuance which are:
-When the claimant decides to terminate a suit before receipt of defence, he may terminate the suit by Notice of Discontinuance.
– Where the Claimant is served with the defence but before taking any other proceeding in the action, he may terminate the suit by Notice of discontinuance.
– Where the Claimant has been served with the defence and he takes any other proceeding in the matter, he will terminate the suit at this stage with the leave of Court.

The Respondent’s Counsel further argued that the distinguishing factor is therefore whether the Claimant has taken a step in the proceeding after the receipt of the defence. He therefore urged this Court to hold that the suit leading to this Appeal is not an abuse of Court process as the earlier suit was properly terminated before it was commenced at the Trial Court.

The Respondent’s Counsel then argued that the Trial Court did not make any order against the AFN and that the AFN is not a juristic person capable of suing and being sued and that it can only be sued through its officers. On this point, counsel cited the case of IYKE MEDICAL MERCHANDISE VS. PFIZER INC & ANOR (2001) LPELR – 1579 (SC).

The Respondent’s Counsel further argued that the refusal of the Respondent to join the AFN as a party in this suit is not fatal at all.

On Issue Two, the Respondent’s Counsel argued that the Trial Court was right when it held that there was no law requiring the Respondent to exhaust internal administrative remedies before instituting the suit leading to the Appeal. Counsel further argued that the Constitution of the AFN and the National Sports Federation Code of Governance did not make provision for Arbitration or Resolution of Dispute , that the IAAF Constitution relates to member countries and not individuals, that the Rule 60 (3) of the IAAF Disciplinary Procedure Rule, is a declaration of what member countries should do and not an arbitration clause, that the 1st and 2nd Appellants not being members of the AFN or IAAF are not bound to any dispute resolution mechanism of the AFN. On this point, counsel cited the case of CHEVRON U.S.A. INC & ANOR VS. BRITTANIA U (NIG) LTD & ORS (2018) LPELR – 43519 (CA).

On Issue Three, the Respondent’s

Counsel argued that the reason for setting aside the resolutions reached at the parallel Board meetings conveyed by the 3rd and 4th Appellants to suspend and subsequent impeachment of the Respondent was based on malice and denial of fair hearing to the Respondent and that the decision of the Court on Article 5.3 of the Constitution of the Athletic Federation of Nigeria as contained in pages 290 – 291 of the Record of Appeal was not Appealed against. On this point counsel cited the case of IYOHO VS. EFFIONG (2007) 11 NWLR (PT. 1044) 31 AT 55.

The Respondent’s Counsel also argued that Exhibit FMYSD 5 does not in any way amount to a directive of the Respondent to the 3rd Respondent to call a Board meeting, rather Exhibit FMYSD 5 on the face of it was a notification by the Respondent to the 3rd Appellant that a Board meeting had since been called on the 4th of November, 2019.

The Respondent’s Counsel further argued that Exhibit FMYSD 5 when compared with the Respondent averments in Paragraphs 27 – 28 of his affidavit in support of the originating summons, Exhibit F1 and F2 as well as the Respondent’s Further and

Better affidavit will clearly show that the Respondent did not authorize the 3rd Appellant through Exhibit FMYSD 5 to call the parallel meeting of 3rd December, 2019. On this counsel cited the case of BEDDING HOLDINGS LIMITED VS. NEC (1992) 8 NWLR (PT. 260) 428.

The Appellants also filed a Reply brief of argument as settled by their counsel Emmanuel Okibe Esq. and dated 28th July, 2020 and filed on the same date.

In the Reply Brief of Argument, the Appellants’ Counsel also argued in response to the Motion on Notice filed by the Respondent on the 24th of July, 2020 wherein he argued in Paragraphs 1.2 – 1.6 that ground 5 of the Notice of Appeal is succinctly captured in Page 292 – 293 of the Record of Appeal.

The Appellants’ Counsel argued in Response to the argument of the Respondent’s Counsel in the Respondent’s Brief of Argument that for a Plaintiff to discontinue a case where a defendant has filed and served his statement of Defence, such must be done with leave of Court. Counsel further argued that the Respondent misconceived the purport of issuance of Notice of Discontinuance in a matter where parties have joined

issues to mean mere filing and service of Notice of Discontinuance to the Appellant.
The Appellants’ Counsel also argued that the purport of ORDER 24(3) and (4) High Court FCT (Civil Procedure) Rules 2018 is to the effect that the Respondent files the appropriate processes to seek for the leave of Court sought and obtained and the appropriate order made by the Court as the case may be. Counsel further argued that the suit substituted and cannot be said to have discontinued or terminated and therefore amounts to an abuse of Court process. On this point, counsel cited THE YOUNG SHALL GROW MOTORS LTD VS. AMBROSE O. OKONKWO & ANOR (2010) 15 NWLR (PT. 2017) AT PAGE 524 AT PAGE 539 AT PARAS F – G; ZAKARI VS. NIGERIA ARMY (2015) 62 (PT. 1) NSCQR 214 AT PAGES 261 – 262.

The Appellants’ Counsel argued that in Paragraph 4.12 of the Respondent’s Brief of Argument, while conceding that the Athletics Federation of Nigeria is a necessary party and argued that the reason why the Athletics Federation of Nigeria was not joined as a party to this suit is that it is not a juristic person and cannot be sued and be sued. Counsel further

argued that parties ought to be consistent with the presentation of their cases. On this point, counsel cited the case of MRS. MARGAREY OKADIGBO VS. PRINCE J. O. EMEKA & ORS (2012) 1 SCM 202 AT 214 A – C.

The Appellants’ Counsel also argued that the crux of the Respondent’s case at the Trial Court was the interpretation of the Constitution of the Athletics Federation of Nigeria and the remedies sought were based on the alleged violation of the said Constitution and the appropriate thing to have done would have being to either sue for or on behalf of the Athletics Federation of Nigeria in a representative capacity or even be joined as a party to the suit either as a Plaintiff or a Defendant. On this point counsel cited the case of FAWEHINMI VS. NBA & ORS (NO. 2) (1989) LPELR – 1259 (SC).

The Appellants’ Counsel also argued that a look at the reliefs being sought by the Respondent will show that all reliefs being sought by the Respondent had to do with the certain actions and decisions taken for and on behalf of the Athletics Federation of Nigeria. Counsel further referred this Court to the decision of the Trial Court in Pages 292 and 293 of the

Records of Appeal in arguing that the Athletics Federation of Nigeria is a necessary party who was not joined and the Court has no jurisdiction to make orders against a party who was not joined. On this point, counsel cited the case of NDP VS. INEC (2012) 52 (PT. 1) NSCQR AT P.697.

The Appellants’ Counsel argued that the IAAF Constitution Part XI, page 127 of the Record of Appeal which deals with discipline specifically mentioned individuals who are participating in Athletics in International Competitions including but not limited to athlete and athlete support personnel. Moreover, the Constitution further makes a provision for the establishment of a Disciplinary Tribunal which shall be independent of the IAAF.

The Appellants’ Counsel further argued that the IAAF Rules is not a declaration of intention but Rules meant to bind its members and it binds the Athletics Federation of Nigeria (AFN). Counsel therefore states that failure of the Respondent to resort to internal mechanism for dispute resolution robs the Court of jurisdiction.

In conclusion, the Appellants’ Counsel argued that Exhibit

FMYSD 5 was never considered when the Trial Court was delivering its judgment which failure is fatal and has resulted in a miscarriage of justice.

Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellants herein, and will address the issues thereon.
1. Whether the Learned Trial Judge was right when he held that he had Jurisdiction to entertain the suit despite the pendency of a similar suit at the High Court of the Federal Capital Territory.
2. Whether the Learned Trial Judge was right when she held that there was no law requiring the Respondent to exhaust internal administrative remedies before instituting the present suit before the Federal High Court and that the International Association of Athletics Federation (IAFF) Constitution only binds member Countries and not individuals (natural persons).
3. Whether the Learned Trial Judge was right when he made orders against the Athletics Federation of Nigeria who are not parties to the Suit.
4. Whether the Trial Judge was right when she held that the meeting convened by the 3rd and 4th Defendants on the 3rd of December, 2019 without the Plaintiff was

a contravention of the existence of Exhibit 5.

ISSUE ONE
Whether the Learned Trial Judge was right when he held that he had Jurisdiction to entertain the suit despite the pendency of a similar suit at the High Court of the Federal Capital Territory.

The question that comes to my mind at this point is, was there a pending suit at the High Court of the Federal Capital Territory at the time of filing the suit at the Trial Court?

From the Record of Appeal before this Court, there is no dispute to the fact that there was a similar suit as the one between the parties at the Trial Court which was pending at the High Court of the Federal Capital Territory. However, the contention by the Appellants is that the suit at the High Court of the Federal Capital Territory is still pending and the Respondent on the other hand argues that the Notice of Discontinuance as Exhibited in Page 50 of the Record of Appeal filed by the Respondent meant that the said matter is no longer pending and thus there is no abuse of Court Process.

I would go ahead to consider the said Notice of Discontinuance and the effect it has on the suit at the Trial Court leading

to this Appeal.

Looking at page 50 of the Record of Appeal, I can see the Notice of Discontinuance filed by the Respondent but before I go further, I think it is necessary to reproduce the provisions of Order 24 of the High Court of the Federal Capital Territory (Civil Procedure Rules) 2018 which provides for the discontinuance of a civil suit pending in the Court. The said Order 24(1) – (5) provides as follows:
“24
1. The Claimant may at any time before receipt of the defence or after the receipt, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the Defendants or withdraw any part or parts of his claim, He shall pay the defendant’s costs of action, or if the action be not wholly discontinued, the costs occasioned by the matter withdrawn.
2. A discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent claim. (Emphasis Mine).
3. where a Defence has been filed, the Claimant may with the leave of the Court discontinue the proceedings or any part on such terms and conditions as the Court may order.

Where a proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this order, no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Court have been fully complied with.
5. The Court may in the same manner and discretion as to terms, upon the application of a Defendant order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out.
When a cause is ready for trial, it may be withdrawn by either claimant or the defendant upon producing to the registrar a consent in writing signed by the parties and thereupon the Court shall strike out the matter without the attendance of the parties or their legal practitioner.”
A careful reading of the provisions of Subsection (1) and (2) as reproduced above which in my opinion applies to the case at hand reveals that:
i. Leave is not required in filing a Notice of Discontinuance at any time before receipt of the defence or after the receipt of defence, before taking any other proceeding in the action,
ii. A Discontinuance or

Withdrawal, as the case may be, shall not be a defence to any subsequent claim.
iii. Looking further at subsection 3, one may be confused as to seeking the leave of Court to discontinue a matter once defence is filed but it is clear that such leave can only be sought once any step has been taken after the filing of the defence as provided for under subsection 2. However, once any step has not been taken, leave of Court is not required.
iv. The said Notice as embodied in Subsection 1 and 2 does not necessarily take the form of a Motion unlike the type that would be required while seeking leave as embodied in subsection 3.

“A Plaintiff may, without leave of Court, discontinue a Suit

against all or any of the defendants, or withdraw any part of his claim before the date fixed for hearing. In such a situation the notice of withdrawal automatically terminates the proceedings…”
I would agree with the Learned Trial Judge that the filing of the Notice of Discontinuance Exhibited in Page 50 of the Record of Appeal puts an automatic end to the action against the Appellants at the High Court of the Federal Capital Territory and any pending processes in the action cannot, in my own view, hinder the termination of the action against the Appellants.
What is left to be done shall be for the High Court of the Federal Capital Territory, Abuja to formally enter an order striking out the action against the Appellants which, in my strong view, is a matter of course or mere formality.
Neither the trial Court nor any of the parties can stand in the way of the discontinuance of the action against the Appellants as contained in the said Exhibit in Page 50 of the Record of Appeal.
At the stage of filing the Notice of Discontinuance, the duty of the High Court of the Federal Capital Territory is to confirm the action before it dead in

favour of the Respondent. So, whenever the action is called before the said Court, its attention may be drawn to the pendency of the Notice of Discontinuance on which it will perform the required hearing of pronouncing the demise of the action against the Appellants by an order striking it out without more. See also the case of EZEONU VS. AGHEZE (1991) 4 NWLR (PT. 187) 631 AT 642 TO 643 wherein the Court held as follows:
“Since the real quarrel in this matter started from the notice of discontinuance, I might as well start from it. And that takes me straight to Order 22 of the High Court Rules of Anambra State. Order 22 has eight rules. The notice of discontinuance was brought under Rule 1. For ease of reference, let me produce verbatim ad literatim the rule:
“The plaintiff in an action may without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than the day preceding the day the action is first set down for hearing by filing in the Court registry a notice to that effect. The Registrar shall cause a copy of the notice to be delivered

to the defendant as early as possible.”
This rule can only be invoked where the matter is not yet set down for hearing. By the rule, if the matter is to come up the following day, the notice could be filed today. That is of course/ the last day that the notice under the rule could be filed. That is the meaning of the expression “not later than the day preceding the day the action is first set down for hearing.” When the notice of discontinuance is statutorily given by the plaintiff, the next procedure is for the Registrar to cause a copy of the notice to be delivered to the defendant. Although the rule does not specify the time limit within which the notice of discontinuance should be delivered to the defendant, it is my feeling that the rule intends a situation where the defendant receives the notice before the return date of the case or before the date the matter is to come up. That to me, appears to be the interpretation of the expression “as early as possible.” In my view the rule wants to avoid a situation where a defendant comes to Court only to meet a notice of discontinuance without the plaintiff. The rule will not like the defendant to incur

unnecessary expenses in coming to Court. What happens next when the Registrar has caused the notice to be delivered to the defendant? I have partly answered the question, I might as well complete it. Following the clear intention of the rule, the defendant is not expected to be in Court. He is expected to regard the matter as coming to an end as far as the particular suit is concerned. Of course, the plaintiff cannot in law recall the notice. See Chief Obienu and Others v. Chief Orizu and Others (1972) 2 E.C.S.L.R. 606….”
This brings me to the import of a Notice of Discontinuance.
Discontinuance means the termination of a law suit by the Plaintiff; voluntary dismissal or non-suit. The notice has the effect of the plaintiff removing the suit and put to end the questions sought to be determined at the Trial Court. The Rules of Court provides for Notice of discontinuance with a regime of the order to be made depending on the stage of proceedings. Usually before issues are joined, it requires the filing of a Notice of discontinuance but when issues have been joined or the matter has gone into hearing, then it should be by way of Motion on Notice for discontinuance

and in such situations, the Court can impose conditionalities for discontinuing the suit. Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued.
The Supreme Court in the case of OGUNKUNLE VS. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT. 727) 359 held:
“A discontinuance in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them whom the action has been discontinued without further intervention from the Court.” The Applicant has failed to understand the import of the mere filing of the Notice of discontinuance. The situation can be likened to a corpse in the mortuary waiting to be buried on a latter day. It cannot be withdrawn nor can any legal step be taken on the matter except burial formalities and burial ceremonies are not in the interest of the dead but for the health of the society that demands that the dead must be properly buried. The Court must not end the matter formally by an order. The idea of filing an objection to

require a hearing is uncalled for. All the defendant needs to do is to demand for conditions to be placed on the withdrawal because the Court cannot take any step in the matter other than those necessary for formally terminating the suit, once the notice is filed. The Court and the other party cannot force the plaintiff to continue with the suit. The essence of the requirement to either file just a notice or a motion on Notice is dependent on the stage of proceedings and to allow the Court make certain orders when the matter has gone to a particular stage. It is not to allow a defendant contest the discontinuance. No, not at all. The Applicant further argued that the suit did not automatically cease, the question is whether in law, the matter was alive? Once the notice is filed, the matter has legally ceased and it would not matter whether the final order was made one year later.” (Emphasis Mine).

pending before the High Court of the Federal Capital Territory, a Notice of Discontinuance having been properly filed and served on the Appellants. I am also of the well-considered view and from my findings articulated above, that the said suit leading to this Appeal does not constitute an abuse of Court Process. I hereby resolve this Issue in favor of the Respondent.

ISSUE TWO
Whether the Learned Trial Judge was right when she held that there was no law requiring the Respondent to exhaust internal administrative remedies before instituting the present suit before the Federal High Court and that the International Association of Athletics Federation (IAFF) Constitution only binds member Countries and not individuals (natural persons).

It seems that the bone of Contention between the Respondent and the Appellants has to do with the alleged removal of the Respondent as the President of the Athletic Federation of Nigeria; which is an association that has its own Constitution.

Anyway, it would be too early at this point to delve into the conclusion based on just the Constitution of the Athletic Federation of Nigeria without looking further in

determining the issue at hand whether the Respondent failed to explore internal dispute resolution mechanism before filing the suit at the Trial Court.

Since the Appellants has drawn the attention of this Court to the Constitution of the International Association of Athletics Federation (IAAF), the IAAF Disputes and Disciplinary Proceedings Rules and the National Sports Federations Code of Governance, 2017, this Court would not hesitate to consider these documents.

Firstly, the Athletics Federation of Nigeria according to its Article 1.0 was founded as one of the National Sports Federations with the statutory mandate to regulate and develop athletics in Nigeria and affiliated to the Confederation of Africa Athletics (CAA) and the International Association of Athletics Federations (IAAF) with the objectives as stated in Article 2 of the AFN Constitution. See Page 14 of the Record of Appeal.

Secondly, the National Sports Federations Code of Governance 2017 is a guideline with its purpose as Contained in paragraph 2.0 of the said Code. See page 27 of the Record of Appeal.

Thirdly, the International Association of Athletics Federations (IAAF)

is an association of the member Federations and is the sole competent international authority for the sport of Athletics worldwide. See Paragraph 1.1 and 1.3 contained in page 78 of the Record of Appeal.

The International Association of Athletics Federations (IAAF) has purposes which are contained in paragraph 4.1 at page 79 of the Record of Appeal.

Fourthly, the Disputes and Disciplinary Proceedings Rules of the IAAF provides in clause 7 that each member shall incorporate a provision in its constitution that all disputes with another member or area association shall be referred to the council and the council shall determine a procedure for the final adjudication of the dispute depending on the circumstances of the case in question.

The word “Member” as used in the IAAF Constitution simply means the members of the IAAF as described in Article 6, also known as Member Federations and as listed in the annexure, as updated from time to time and ‘membership’ means being a member of the IAAF. See page 135 of the Record of Appeal.

Nigeria is among the list of member Federation. See Page 138 of the Record of Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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From the above definition of member and membership, the IAAF Disputes and Disciplinary Rules applies to dispute between two-member Federations and not between two individuals as it relates to person(s).

All these as reproduced above, is simply to show the individuality of the operation of the respective code and constitution and as well as the import.

All that I am trying to drive at is that the Athletics Federation of Nigeria is a different body even though affiliated to the IAAF. It has its own Constitution that governs its activities and assuming but not conceding that the IAAF rules governs internal dispute resolution of the AFN as an affiliate, there is no provision for dispute resolution for individual members but resolution of conflict between member federations.

The AFN also has no provision for internal dispute resolution between its individual members. See Paragraph 10.2 of the Athletic Federation of Nigeria which provides thus:
“Disputes arising and related to this Constitution shall be settled according to provisions of this Constitution.”
Even though the provision above made reference to dispute being settled

according to the provision of the Constitution of the AFN, there is no such provision which leaves the option open for resort to the Court which is always the last hope of the Common man.

Access to Court is a constitutional right which can only be taken away by a clear provision in the Constitution especially where there exists no clause in any enactment which provides for settlement of dispute as an approach before a party can approach the Court.

From all my examinations and findings as discussed above and in agreement with the findings of the Trial Court on this issue especially as contained in pages 284 and 285 of the Record of Appeal and its Conclusion and decision contained in page 286 of the Record of Appeal to hold that I am of the view that the Trial Court was right to have held that there is no law requiring the Respondent to exhaust internal administrative remedies before instituting the suit leading to this Appeal. This issue is hereby resolved against the Appellant in favor of the Respondent.

ISSUE THREE
Whether the Learned Trial Judge was right when he made orders against the Athletics Federation of Nigeria who are not parties to the Suit.

Looking at the reliefs sought and the questions for determination raised by the Respondent in his Originating Summons at the Trial Court, I can see that there is a rift between the Respondent and the Appellants which the Respondent had called the Trial Court to settle.

Another thing to consider is that the Respondent being aggrieved by his removal as the President of the Athletics Federation of Nigeria instituted the action to air his grievance. There is nowhere in the originating summons where he was suing for a wrong done to the Athletics Federation of Nigeria (AFN) or by the Athletics Federation of Nigeria that would warrant him to sue on behalf of the Athletics Federation of Nigeria or against the Athletics Federation of Nigeria. The real question to be determined in my view was between the Respondent who feels the Appellants does not have the power to do the act which he now complains of. I also believe the Respondent was exercising his right to get justice for a wrong which was done to him.

The principles guiding the joinder of parties are as follows:
1. Is the cause or matter liable to be defeated by the non-joinder?

Is it possible for the Court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter? See: GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480, (1987) 2 N.S.C.C. VOL. 18 (PART II) 1115 AT 1127; UKU VS. OKUMAGBA (1974) 1 ALL NLR (PT. 1) 475; PEENOK INVESTMENTS LTD VS. HOTEL PRESIDENTIAL LTD (SUPRA); UGORJI VS. ONWU (1991) 3 NWLR (PT. 178) 177.
The law governing joinder of parties makes it explicitly clear that except where there are questions in proceedings, which cannot be effectively and completely settled without the presence of a party only then can such a party be joined in an action. Apart from that, the Respondent did not have any cause of action or reliefs against the Athletics Federation of Nigeria (AFN) to have warranted joining it in the suit.
In AJAYI VS. JOLAYEMI (2001) 10

NWLR (PT. 722) PAGE 516 AT 537 – 538. The Supreme Court held thus:-
“The principle guiding joinder of parties as provided in our various rules of Court has received judicial interpretation in our Courts and Courts of other common law jurisdiction. The purpose of the rules is to allow a plaintiff to proceed in the same action against whom he alleges to be entitled to any relief whether his claim is brought against the defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative… It is improper to join as co-defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim….”

of the Respondent at the trial Court to the extent of depriving the Trial Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, as a nullity.

ISSUE FOUR
Whether the Trial Judge was right when she held that the meeting convened by the 3rd and 4th Defendants on the 3rd of December, 2019 without the Plaintiff was a contravention of the existence of Exhibit 5.

In Resolving this Issue, I think it important to first address the point raised by the Respondent Counsel that

the Grounds 5 of the Appellant Notice of Appeal from which this Issue Four (4) was formulated is incompetent by virtue of the fact that the complaint in the said ground did not emanate from the Judgment of the Trial Court being challenged by the Appellants.
For ease of reference, I will like to reproduce the said Ground 5 of the Notice of Appeal thus:
“The Trial Court held that the meeting convened by the 3rd and 4th Defendants on the 3rd December, 2019 without the directive of the Plaintiff was a contravention of the existence of Exhibit 5.”
I have looked at the judgment of the Trial Court contained in the Record of Appeal before this Court and I could not find or understand where the Ground 5 couched by the Appellants emanated from. Perhaps, the reference by the learned Counsel to the Appellants to page 293, paragraph 5 of the Record of Appeal might have been able to refer the Court properly but it didn’t as there is no similarity between Ground 5 and the decision of the Trial Court reproduced by the Appellants in Paragraph 1.5 of their Appellants Reply Brief of Argument.

I have also taken my time to browse through and

study the Judgment of the Trial Court and still could not find where the said Ground emanated from.
It should be noted that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing or the appellant or the aggrieved party. See the case of EHINLANWO VS. OKE (2008) LPELR – 1054 (SC).

Respondent Brief of Argument that the said Ground of Appeal is incompetent not having emanated from the judgment of the Trial Court.
The said Ground of Appeal is hereby struck out. Having struck out the said Ground 5, it follows therefore that all argument under issue five becomes irrelevant.

In the final result and considering my findings on the above issues formulated, I agree in totality with the judgment of the Trial Court and the orders made therein. I make no further orders.
This Appeal is hereby dismissed.

PETER OLABISI IGE. J.C.A.:I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in complete agreement with the reasoning and conclusion arrived at. My lord has considered all issues distilled and adopted for determination in this Appeal. I have nothing more to add and I also abide by other orders made therein the leading Judgment.

Appearances:

A. Ezebilo Esq., with him, O. Emmanuel Esq For Appellant(s)

G. Udora Esq., with him, E. I. Egwu Esq and S. Osayande Esq For Respondent(s)