Ejiofor Anikwe & Ors V. Chief (Engr.) Ossac C. Offoelo & Ors (2016)
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RITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the Judgment of Honourable Justice M. I. Onochie delivered on the 16th day of September 2008. Sitting at the High Court of Anambra State, Awka Judicial Division, Awka.
FACTS RELEVANT TO THE APPEAL
The suit, the subject matter of this Appeal was instituted by writ of summons filed on the 13th of March 2008. – Page 1 of the Record of Appeal.
In Paragraph 26 of the statement of claim dated 9th March 2008 but filed on the 13th of March 2008, the Plaintiffs (Respondents in the present Appeal) claim the following reliefs against the Defendants (Appellants in the present appeal) jointly and severally thus –
i) “A declaration that the Defendants have no right to claim to be, or parade themselves as the duly elected officers or executives of Amede Community or of ADU.
ii) A declaration that the purported renewal of the 1st Plaintiff, 2nd Plaintiff and 2nd Plaintiff as the chairman, Secretary and patron of Amede Community or Amede Development Union is unconstitutional, unlawful and/or unjustifiable.
?iii) A declaration that the
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Defendants are not the persons authorized to manage the affairs and properties of the Amede Community or Amede Development Union, including the economic forests of the Community, particularly the “Isiagu” forest being and lying at amide Village, Mgbakwu, and every materials or items therein.
iv) An order of Perpetual Injunction restraining the Defendants, their agents, assigns, servants, officers, privies and successors-in-title from removing and attempting to remove the 1st, 2nd and 3rd Plaintiffs as the Chairman, Secretary and Patron respectively, of Amede Community or Amede Development Union or other wise interfering in the management of amide Community or Amede Development Union.
v) An Order of Perpetual Injunction restraining the Defendants, their agents, assigns, officers and servants and/or privies from any further act of trespass into the Amede Community economic forests, particularly the “ISIAGU” Forest, Amede being and lying at amide village, Mgbakwu in Awka – North Local Government Area of Anambra State, Nigeria under any guise or pre whatsoever.
vi) The sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) being and
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representing special and general damages for trespass”.
– Pages 7-14 of the Record of Appeal.
Parties filed their respective pleadings and served same. The matter proceeded to trial and on the 16th of September 2008, the lower Court delivered its Judgment in favour of the Plaintiffs (Respondents in the present appeal).
Dissatisfied, the Defendants (Appellants in the present appeal) and desirous of appealing the Judgment, pursuant to the Practice Direction of this Honourable Court filed a Notice of appeal on the 14th of October 2008 encapsulating seven (7) Grounds of Appeal – Pages 273-280 of the Record of Appeal.
The Appellants filed their brief of Argument on the 6th of April 2015. It is settled by A. N. Onuorah, Esq.
The Respondents filed their brief of Argument on the 11th of December 2009 but same was deemed filed on the 24th of November 2010.
It is settled by Chukwudi Nwankwor, Esq. Appellants filed a Reply brief on the 8th of July, 2011.
The Appellants distilled six (6) Issues for determination. They are –
1) WHETHER THE RESPONDENTS WERE VALIDLY ELECTED FOR A TERM OF 3 YEARS ACCORDING TO
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THE CONSTITUTION OF AMEDE DEVELOPMENT UNION TO EXPIRE BY DECEMBER 2009?
2) WHETHER THE TENURE OF OFFICE OF THE RESPONDENTS STILL SUBSISTS AFTER DECEMBER 30TH 2007 AS UPHELD BY THE TRIAL JUDGE?
3) WHETHER THE DECISION OF THE TRIAL JUDGE PUTTING THE TERMINAL DATE OF THE TENURE OF OFFICE OF RESPONDENTS AT DECEMBER 30 2009 IS TENABLE BY EVIDENCE OR IN LAW?
4. WHETHER THE RESPONDENTS WERE ENTITLED TO JUDGMENT AFTER ABANDONING THEIR OWN PLEADINGS AT THE LOWER COURT?
5. WHETHER EXHIBIT “E” RELIED UPON BY THE TRIAL JUDGE AS “UNCHALLENGED” QUALIFY AS UNCHALLENGED?
6) WHETHER THE TRIAL JUDGE WAS RIGHT IN UPHOLDING THE ASSERTION OF THE RESPONDENTS AS CONSTITUTING A CARETAKER GOVERNMENT, FOR AMEDE VILLAGE MGBAKWU BETWEEN 2004-2006 WHEN THEY WERE PURPORTEDLY ELECTED, WITHOUT ANY PROOF”?
The Respondents distilled four (4) Issues for determination from the Grounds of Appeal. They are –
1) WHETHER THE RESPONDENTS WERE PROPERLY ELECTED INTO THE EXECUTIVE COMMITTEE OF THE AMEDE DEVELOPMENT UNION (ADU) MGBAKWU ON THE 30TH DAY OF DECEMBER, 2006?
?2) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN BELIEVING OR PREFERRING THE EVIDENCE OF THE
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RESPONDENTS TO THAT OF THE APPELLANTS?
3) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT, IN RELYING ON EXHIBIT E, THE MINUTES OF THE MEETING OF THE AMEDE DEVELOPMENT UNION OF 30/12/06?
4) WHETHER EXHIBIT F WAS USEFUL TO THE APPELLANTS’ CASE”?
A Cursory look at the respective issues for determination, it seems to me, that the issues proffered for determination by the Appellants more adequately cover the whole field than that of the Respondents.
I shall therefore consider this Appeal based on the Issues for determination distilled, and proffered by the appellants.
The Respondents had filed a Notice of Preliminary Objection on the 11th of December 2009, which was argued at Pages 4-8, Paragraphs 4:01-4:14 of the Respondents brief.
The Gravamen of the Preliminary Objection is that Grounds 1, 2, 3, 4, 5, 6 and 7 and Issues 1, 2, 3, 4, 5, 6 and 7 proffered in relation thereto are incompetent.
This is because these Grounds did not quote passage from the Judgment complained of where the alleged errors in Law occurred. Moreso, the said grounds are misleading and devoid of any meaning.
Also that these grounds where
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the Appellants are alleging errors in law did not state the particulars and the nature of the alleged errors.
That Grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice of Appeal do not qualify as Grounds of law, in that they have not raised any questions, which are capable of reasonable meaning. That these Grounds are vague of general in that they do not disclose reasonable Grounds of Appeal.
That Grounds 2 and 3 of the Notice of Appeal did not complain against any decisions or finding by the trial Court in its Judgment, and therefore not based on any ratio decidendi of the said Judgment.
That Grounds 4 and 7 have no issues formulated by the appellants in respect thereof, and therefore have been abandoned by the appellants.
A Painstaking look at the Grounds of Appeal has these features ?
1) The Notice of Appeal has not set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal.
2) Ground No. 1 states no particulars of error.
?3) In the Introductory part of the Notice of Appeal as reflected at Page 273 of the Record of Appeal, the Appellants state
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thus –
“Take notice that the defendants/appellants being dissatisfied with the decision of the High Court of Anambra State contained in the judgment of Honourable Justice M. I. Onochie, Awka dated the 16th day of September, 2008, doth hereby appeal upon the grounds set out in Paragraph 3 and will at the hearing of the appeal seek the reliefs set out in Paragraph 4. ?.”
Thereafter in Paragraph 3, it only says GROUNDS OF APPEAL, then Error of Law e.t.c.
4) Issue No. 4 in appellants issues for determination does not flow from the Appellants Ground No. 4 in the Notice of Appeal.
Indeed, from the totality of the Grounds of Appeal, as couched, it is very inelegant.
Howbeit it is my view that the lacunae is not such as to vitiate the Grounds of Appeal.
The grounds seem to me to be explicit enough and this appeal can be determined with them, apart from Ground No. 1 which states no particulars of error. Same is hereby struck out.
Accordingly apart from Ground No. 1, which is hereby struck out with the issue No 1 in the Appellants issues for determination. The Notice of Preliminary Objection is overruled.
?THE
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APPEAL
ISSUE No. 1 – Which the Appellants say is distilled from Ground No. 1, having been struck out. No longer saves any purpose. To consider same would amount to academic exercise.
ISSUE No. 2 – Distilled from Ground 2, Appellants submit that Exhibit “F” is not controverted as a letter emanating from the 1st and 2nd Respondents as Chairman and Secretary respectively of Amede Development Union by 2005.
That this supports the fact that the Respondents have been in office from 2004, which tenure of three years would terminate in 2007.
That the Respondents claim of being Chairman and Secretary on caretaker capacity is not supported by evidence. Neither is it in the Amede Development Union Constitution Exhibit “D”.
That Exhibit “F” also do not point to caretaker as claimed by the appellants.
ISSUE No. 3 – Distilled from Ground of Appeal 3, the Appellants contend that the Court cannot give to a litigant what he has not asked for. They submit that the Respondents had pleaded that their tenure of office was for two years but the Court ruled that the Respondents were elected in 2006, which tenure would end in 2009 – a period
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of three years.
They argue that the Respondents had pleaded two years before issues were joined. That parties are bound by their pleadings – AWARA & ORS v. ALALIBO & ORS (2002) 12 NSCQR PAGE 413 @ 419.
That the Respondents Reply to the Statement of Defence aligned with the position of the Appellants on the issue of tenure of 3 years and not 2 years. The Reply also exhibited the CONSTITUTION OF AMEDE DEVELOPMENT UNION after the Defendants (Appellants) had stated the correct Constitutional provision of three years tenure. That the U-turn made by the Respondents amounted to an amendment in form of reply and such is overreaching to the Appellants. AJOSE v. U.A.C.N. PROP. DEV. CO. PLC (2006) SCJN, 233 @ 235. Ration 2. ADEKEYE v. AKIN OLUGBADE (1987) 3 NWLR (Pt. 60) 214.
ISSUE No. 4 ? Appellants submit that this issue is substantially the same as Issue No 3.
ISSUE No. 5 ? Submitted by the Appellants to be deduced from Ground of Appeal No.5
They argue that Exhibit “E” weighed in the mind of the Judge as unchallenged documentary evidence.
?They submit that the fact that PW2, one Frederick Nwodo was
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strenuously cross-examined by Appellants counsel on Exhibit “E” signifies that the Appellants are challenging Exhibit “E”. This they submit ought to have weighed on the mind of the Court.
ISSUE No. 6 ? Distilled from Ground 6, they submit that no document was tendered in support of the fact that the Respondents were appointed members of caretaker committee of Amede in 2004, which they purportedly served till 2006, when they were then elected as the Executives of Amede Development Union Mgbakwu. That there is no evidence to support this.
That Exhibit “F” tendered by the Appellants was signed by the 1st and 2nd Respondents as Chairman and Secretary of Amede Development Union and not as caretaker members.
That no place in the Constitution of that Union is any provision made for caretaker Executives.
The Respondents in arguing their Issue No. 1, had submitted that in their Statement of claim at the lower Court, they had stated that they were duly elected into the executive Committee of the Amede Development Union (ADU) Mgbakwu on the 30th day of December 2006 by the people of Amede village Mgbakwu, for a renewable term of two (2)
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years.
That in the respondents reply to the Appellants Statement of Defence at the lower Court, the respondents (Plaintiffs at the lower Court) in Paragraph 2 (a), they restated that they were elected into office on 30/12/06, but for a renewable term of three (3) years, and not for a renewable term of two (2) years as was inadvertently stated in their statement of claim. And that their said tenure of three (3) years would expire on the 30th day of December 2006. – Pages 145-148 of the Record of Appeal. And that this correct position was confirmed by PW2 in his second written Statement on oath.
That this period of three 3 years was pleaded by the Appellants in their Statement of Defence.
Exhibit “D” the Constitution of Amede Development Union (ADU) attests to this. They submit that based on Exhibit D, the mode or procedure of the election of the members of the executive committee of the ADU is clear and unambiguous.
The Respondents submit that the Constitution of the ADU is binding on all the citizens of Amede village Mgbakwu.
?That the purported meeting of 4/2/08 was null and void as it was held in violation of the
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Constitution of ADU. This is because it was not convened by the Chairman of ADU. That neither the Umuadas nor the elders have the powers to convene any meetings of the ADU.
That DW3 under Cross-examination and in contradiction to the evidence of DW1 and DW2 on the same issue, stated that no meeting was held on 4/2/08 and that the purported election was held on 30/1/08 instead of 4/2/08. That the Returning Officer was an “abroad member” whose name was Charles Chiama, as opposed to the evidence of DW1 under cross-examination, to the effect that “all the elders and Umuada acted as returning officers during the election”. – Page 255 of the Record of Appeal.
The Respondents submit that the evidence of the Appellants on when an election into the executive Committee of ADU was conducted, is at variance with their pleadings referring to Paragraph 15 of the Statement of Defence where the Appellants (Defendants at the lower Court) averred thus:-
“The defendants deny paragraphs 21, 22, 23 of the Statement of Claim and state that the Plaintiffs tenure of office expired on 30th December 2007 during which the General Meeting of the Amede Development
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Union was summoned and new executives elected”.
They submit that they were elected on 30/12/06 and that their tenure would expire on 30/12/09. This evidence was supported by the evidence of PW2. ? Pages 150 – lines 1-9. That PW1 and PW3 also supported this piece of evidence.
If the Respondents were elected on 30/12/06 in accordance with the Constitution of ADU, Exhibit “D”, their tenure would expire on 30/12/09.
They submit that the Appellants could not prove when they were elected. Their evidence was conflicting on that point. That DW1, DW2 and DW3 (witnesses of the Appellants) simply said that the Respondents were elected in 2004. No dates were specified. Under cross-examination, they said the election took place on 4/2/08.
RESOLUTION
The Respondents’ (Plaintiffs in the lower Court) claim in the suit, the subject matter of this Appeal are in the MAIN, declaratory.
He who avers or asserts must prove – Sections 135, 136 and 137 of the Evidence Act 2011.
?I had held that Ground 1 of the Notice and Grounds of Appeal and consequently Issue No 1 of the appellants Issues for determination be and are hereby
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struck out. The said issue states ?
“WHETHER THE RESPONDENTS WERE VALIDLY ELECTED FOR A TERM OF 3 YEARS ACCORDING TO THE CONSTITUTION OF AMEDE DEVELOPMENT UNION TO EXPIRE BY DECEMBER 2003?”
It is my view that the other issues, i.e. Issues 2, 4, 5 and 6 cannot be considered without reference to Issue No 1. This is because Issues No. 2 to 6 are hinged on the Issue of the valid or non valid election of the Respondents.
The result of this is that the Judgment of the lower Court of 16/9/08 must stand.
The striking out of Ground 1 and Issue 1 of the Appellants Ground of Appeal and Issues for determination knocks the bottom of this Appeal, and this Honourable Court cannot reverse the decision of the lower Court, as it finds it proper.
Moreso, in the instant case, the subject matter of this Appeal, the lower Court having properly evaluated the evidence of both parties, preferred the case of the Plaintiffs (Respondents in the present appeal) to that of the Defendants (Appellants in the present appeal).
It is not for the Court of Appeal to substitute its own view for that of the lower Court.
?This Appeal is
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dismissed as lacking in merit, and indeed in form.
The Judgment of M. I. Onochie delivered on the 16th of September 2008, in Suit No. A/60/2008 is hereby affirmed with N100,000.00 costs in favour of the Respondent.
Other Citations: (2016)LCN/8785(CA)
