Doctrine of election of remedies

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the record of appeal (see Order 3 rule 10), or in accordance with Order 3 rule 11

inability or failure to deposit the sum directed by the registrar or to give security by

bond to prosecute the appeal and for the payment of the costs which may be ordered.

Order 3 rule 20 (4) provides for restoration of an appeal dismissed under rule 20(1),

that is for non-compliance with rules 10 and 11 of Order 3. An appellant whose

appeal is dismissed under this rule is allowed by Order 3 rule 20(4) to apply by notice

of motion that his appeal be restored. Where the appellant shows sufficient and good

cause why the appeal should be restored, the Court may exercise its discretion to

restore the appeal upon such terms as to costs as it may think fit.” - Per Karibi-

Whyte, J.S.C., in Olowu v. Abolore Suit No. S.C. 302/90; (1993) 5 N.W.L.R. (Pt.

293) 255 at 271 - 272.

(56) DISTINTION BETWEEN GROUNDS OF LAW AND GROUNDS OF

FACT

927. Determining the distinction whether a ground of appeal are of fact or

law.

“It must be noted that in all these cases and other cases bearing on this point, the

exercise is undertaken not only to determine whether an appellant’s ground of appeal

are of fact or of mixed law and fact, but also whether some or all of them are

grounds of law. Where any of the grounds of appeal are determined to be grounds of

law, then the appeal could be saved by virtue of the provisions of subsection 2(a) of

Section 213 of the Constitution of Nigeria 1979 (as amended).” - Per Ejiwunmi,

J.S.C., in Maigoro v. Garba Suit No. S.C. 27/1991; (2001) 2 W.R.N. 1 at 12.

(57) DOCTRINE OF ELECTION OF REMEDIES

928. Applicability of the doctrine of election to parties right of appeal.

“An appeal is not an alternative remedy to any proceeding in a Court of law. It is a

right given by statute and rule. It does not depend on the bounty of a judge. Therefore

coming back to the case in hand, it is the right of the defendants/respondents to file

an appeal against the default judgment of Olagunju J. So long as the appeal had not

been entered in the Court of Appeal, Olagunju J. could attend to any application

brought before him in respect of the default judgment. Giving notice of appeal does

not constitute the entering of the appeal in the Court of Appeal. Furthermore, until

the learned trial Judge agreed, through an application brought before him, to stay

proceeding in the case or until Court of Appeal orders him to stay proceedings pending

an appeal he commits no error in exercising his discretion to set aside his default

judgment. The proceedings to set aside his default judgment is not an exercise outside

his jurisdiction.” - Per Onu, J.S.C., in Mohammed v. Husseini Suit No. S.C. 233/

1944; (1998) 14 N.W.L.R (Pt. 584) 108 at 142.

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