Nze Edward Ali V. Engr Cornelius Chika Uzoigwe & Ors (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
In the High Court of Justice, Imo State in the Mbaitoli/Ikeduru Judicial Division, Holden at Iho in Suit No.HMI/2/2004, the 1st-4th Respondents (as Plaintiffs) claimed against the Appellant (then as 1st Defendant) and the 5th and 6th Respondents (as 2nd and 3rd Defendants) in both their Writ of Summons and Statement of Claim dated 8th January, 2004, 5th day of January, 2004, 10th day of March, 2004 and filed on the 8th January and 11th March, 2004 respectively, the following Reliefs:
1. Declaration that the purported recognition of the 1st Defendant by the 2nd Defendant as the Traditional Ruler of Obinnoha Autonomous Community, in Mbaitoli Local Government Area of Imo State was not in accordance with the agreed method of the people of Obinnoha Autonomous Community and is therefore illegal, null and void and of no effect whatsoever.
2. Order of Court setting aside the purported recognition of the 1st Defendant by the 2nd Defendant as it was not done in accordance with the custom and agreed method or formular adopted by the people of Obinnoha Autonomous Community for
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choosing a Traditional Ruler which favoured the Plaintiff.
3. Declaration that the 1st plaintiff and not the 1st Defendant is the proper person entitled or qualified for recognition by the 2nd Defendant as the Traditional Ruler of Obinnoha Autonomous Community in the Mbaitoli Local Government Area of Imo State having been duly identified, selected, presented, and traditionally installed as one, in accordance with the resolution of the Umuduru Community, which was mandated by the people of Obinnoha Autonomous Community, to produce the first Traditional Ruler.
4. Perpetual Injunction, restraining the First Defendant from holding out himself or parading himself in any manner whatsoever as the Traditional Ruler of Obinnoha Autonomous Community in the Mbaitoli Local Government Area of Imo State having not been recognized in accordance with the agreed formula chosen by the entire people of Obinnoha and the Applicable Law, which method favoured the 1st Plaintiff.?
Upon being served with the Originating processes, the Defendant (now Appellant) entered conditional Appearance by a Memorandum dated the 19th of January, 2004 but filed on
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the 22nd January, 2004 through his Counsel I.B.B. Madubuko Esq and subsequently his Statement of Defence dated 30th April, 2004 was filed on 27/5/2004. The 2nd and 3rd Defendants (now 5th and 6th Respondents) filed their Joint Statement of Defence subsequently on the 16th of January, 2006. The Statements of Claim and Defence of the respective parties were accompanied by Witness Statements on Oath and the List of Documents sought to be relied upon at the trial.
The facts of the case as can be gathered from the Records and the Judgment of the Lower Court are that, after exchange of pleadings and issues joined, hearing commenced under the old Imo State High Court (Civil Procedure) Rules on the 18th day of June, 2008 but upon the new Rules coming into effect, the matter started de novo as the parties had to comply with the new Rules. In line with the said Rules, Pre-Trial Conference was held and both Learned Counsel for the Plaintiffs and the 1st Defendant (now 1st ? 4th Respondents and Appellant) identified a Sole Issue for determination which was: ?Whether the 1st Defendant was qualified to be recognized as the Traditional Ruler of Obinnoha
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Autonomous Community.?
In the light of the foregoing, on the 30th day of June, 2010 after the Learned Counsel to the parties had agreed that: (1). The issue therein was not that of facts but of law and therefore agreed to address the Court on the qualification of the 1st Defendant to be the Eze of his Autonomous Community as stipulated by Imo State Law (2). There was also an Ancillary issue on whether the 1st Claimant (now Respondent) as a Public Servant can be recognized as an Eze, the Suit having been brought in a representative capacity; (3). Chief D.C. Ndiokwere for the Plaintiffs asked for 7 days while I.B.B. Madubuko Esq for the 1st Defendant asked for 14 days; the Learned Trial Judge granted their requests and adjourned the case to the 27th day of July, 2010 for adoption of Written Addresses.
On the 27th day of July, 2010, the case was further adjourned to the 26th day of October, 2010 for Ruling on the Motion for Amendment and Judgment, after the Learned Counsel for the parties had adopted their said Written Addresses.
?On the 3rd day of March, 2011, the Learned Trial Judge delivered his Judgment granting all the Reliefs sought by
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the Plaintiffs with N30,000.00 (Thirty Thousand Naira) costs in favour of the Plaintiffs. In respect of the ancillary issue as to whether the 1st Claimant duly resigned his appointment he being a Civil Servant who ought not to be qualified for recognition as claimed, the Learned Trial Judge at page 14/242 of the Judgment/Records held:
?As to the ancillary issue raised by the Defence Counsel i.e whether the 1st Claimant dully resigned his appointment being a Civil Servant in accordance with the Civil Service Rules, all I can say is that resolving this issue one way or the other will not in any way affect the justice of this case and besides there is no Counter-Claim or Cross-action. So the issue is non sequitur.?
It is against the said Judgment that the Appellant has now appealed to this Honourable Court by a Notice of Appeal with 4 (Four) Grounds dated the 16th day of March, 2011 and filed on the 18th day of March, 2011. Reproduced below as couched are the Grounds of Appeal albeit without their respective particulars.
?GROUNDS OF APPEAL
GROUND 1
The trial Court erred in law when it refused the amendment sought by the
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1st Defendant/Appellant when it held thus:
?He spoke as one who was positive and sure of what he was saying. Now he is saying it was by accident that he now has come up with Certificate by making one of my sons Chima Ali to climb the ceiling/roof of my father?s old one storey building in the Village and to my greatest happiness and surprise after a very long search the Certificate was found there amidst dust and smoke like particles. The said (sic) is hereby pleaded and marked ?BB?. He could not do this all 7 years. This is pure gobble de gook. It will work great injustice to allow this amendment. I consider it overreaching and hold that the 1st Defendant is malafide in this application. (underlining mine).?
GROUND 2
The trial Court erred in law when it denied the Appellant fair hearing contrary to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 by refusing him the opportunity of presenting his case to the Court when it refused him the amendment sought.
GROUND 3
The trial Court misdirected itself in law when it held that thus:
?As to the ancillary issue
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raised by the Defence Counsel i.e. whether the 1st Claimant duly resigned his appointment being a Civil Servant in accordance with the Civil Service Rules, all I can say is that resolving this issue one way or the other will not in any way affect the justice of the case.?, thereby occasioning a miscarriage of justice.
Ground 4
The trial Court erred in law when it granted declaratory Reliefs against the Appellant without taking evidence from the Claimants.? See pages 292 ? 296 of the Records.
Following the transmission of the Record of Appeal hereto and the grant of interlocutory Applications, Briefs were filed and exchanged in line with the Rules of this Honourable Court. F.A. Onuzulike, Esq who settled the Appellant?s Brief of Argument dated the 24th day of October, 2012 but filed on the 29th day of October, 2012; distilled THREE (3) ISSUES for determination couched in the following terms:
ISSUES FOR DETERMINATION:
?1. Whether the refusal of the amendment sought by the Appellant was right and if not, whether it did not occasion miscarriage of justice? (GROUND 1).
2. Whether the
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refusal of the Amendment of the Appellant?s pleadings in order to cure the defect as to the main issue for trial did not amount to a denial of fair hearing? (GROUND 2).
3. Whether the trial Court was right in refusing to resolve an issue placed before it upon which the 1st to 4th Respondents sought a declaration and yet went ahead to make the Declaration in their favour? (GROUND 3).
4. Whether the Trial Court was right in making declaratory Reliefs as claimed by the 1st ? 4th Respondents without taking any evidence or allowing them to prove their case?” (GROUND 4).
On the other hand, A. C. Ibekaeme, Esq; who settled the Brief of Argument of the 1st ? 4th Respondents dated the 4th day of November, 2013 and filed on the 14th day of November, 2013 adopted the Four Issues nominated by the Learned Counsel for the Appellant as reproduced earlier on.
ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT ON THE ISSUES.
ISSUE NUMBER 1(ONE):
?WHETHER THE REFUSAL OF THE AMENDMENT SOUGHT BY THE APPELLANT WAS RIGHT AND IF NOT, WHETHER IT DID NOT OCCASION A MISCARRIAGE OF JUSTICE
?Arguing this Issue,
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the Learned Counsel for the Appellant alluded to Order 24 Rule 1 of the Imo State High Court (Civil Procedure) Rules on amendment and the case of Ogbuli V. Ogbuli (2008) ALL FWLR (Pt. 401) 953 at 967 ? 968 H ? A; on the trite position of the law that amendment can be made at any stage of proceeding before Judgment. He pointed out the reason for the motion for amendment filed by the Appellant in this case which was to plead a very material fact in view of the case of the 1st ? 4th Respondents that the Appellant did not have the minimum educational qualification to be made Traditional Ruler of his Community. He then referred to the 3rd Relief of the 1st ? 4th Respondents at Page 8 of the Records, paragraphs 22 and 23 of their Statement of Claim; to submit that the educational qualification of the Appellant was in issue between the parties.
?The Learned Counsel referred us to the motion dated 16-7-2010 and filed on 20-7-2010 whereof the Appellant sought leave to amend his Statement of Defence in consequence of the pleading in paragraphs 22 and 23 of the Statement of Claim of the 1st ? 4th Respondents (pages 167 ? 187 of the
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Records Refers); and the proposed amendment to his pleadings as can be seen in paragraph 3 ? 8 thereof at 176 ? 177 of the Records.
On the law that the essence of amendment sought from the Court below was to enable the Court deal with all the issues in controversy as would be placed before it, he referred us to University of Ilorin V. Adesina (2008) ALL FWLR (Pt. 400) 768 at 776 paras. A ? B ?D. In the instant case, the Learned Counsel submitted that the main issue was whether the Appellant had the minimum educational qualification and the amendment sought was to enable him place before Court his qualification which he recovered after a diligent search as was captured by the trial Court at page 235 last paragraph ? 236 1st paragraph of the Records.
He contended that evidence had not been laid before the Court from either side and indeed hearing of evidence was yet to commence and the evidence to be tendered was not over reaching yet the Trial Court in refusing the amendment held as he did at page 239 third paragraph of the Records even when the Appellant had explained the reasons and circumstances leading to his
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discovery of his certificate after many years at page 176 ? 177 of the Records.
As for the reason advanced by the Learned Trial Judge that the amendment was over reaching because it was sought after 7 years of commencing the proceedings, the Learned Counsel for the Appellant argued that the mere fact of the amendment being sought after many years of filing the Suit does not make it over reaching as it was not shown how the Respondents were prejudiced by the amendment since the amendment was meant to enable the Court below to come to a just conclusion of the case by looking at all available evidence. For the above submission, he cited Anakwe V. Oladeji (2008) ALL FWLR (Pt. 399) 571 at 584 paras. B ?C; where the principles for the grant of amendment were laid down, it was contended that the amendment was sought immediately the certificate was discovered reiterating that evidence was yet to be led and the amendment was related to the main question in controversy. Accordingly, he urged us to hold that the refusal to grant the amendment by the trial Court was wrong in law and its order has to be set aside and Issue Number One resolved in favour of
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the Appellant.
ISSUE NUMBER 2 (TWO):
?WHETHER THE REFUSAL OF AMENDMENT OF APPELLANT?S PLEADINGS IN ORDER TO CURE THE DEFECT AS TO THE MAIN ISSUE FOR TRIAL DID NOT AMOUNT TO A DENIAL OF FAIR HEARING
In respect of this Issue, the Learned Counsel argued that fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the bed rock of all trials and as such every party in a proceeding, should be afforded every opportunity to present his case for just determination. The case of Guiness (Nig.) Plc V. Ufot (2008) ALL FWLR (Pt. 412) 1113 at 1138 paras. E ? F on the true test of fair hearing was cited along with Akaninwo V. Nsirim (2008) ALL FWLR (Pt. 410) 610 at 671 paras. F ? G; to pose the question as to what a reasonable man?s impression would be of the trial where the amendment sought to place an essential material before the Court below in order to resolve the main issue, was refused which he answered that the impression would certainly be that the party was denied fair hearing/opportunity to present his case.
?He maintained that the situation in the
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case of Akaninwo V. Nsirim (2008) ALL FWLR (Pt. 410) 610 at 671 paras. F ? G afore-cited is same with the Appeal at hand and we should therefore hold that the Appellant was denied fair hearing. On the consequence of denial of fair hearing, the Learned Counsel for the Appellant relied on Tsokwa Motors (Nig.) Ltd. v. U.B.A. PLC (2008) ALL FWLR (Pt. 403) 1240 at 1225 paras. A ? B (S.C); N.I.I.T ZARIA VS. DANGE (2008) ALL FWLR (Pt. 445) 1785 at 1803 paras. D ? E; Adamu V. Akukalia (2008) ALL FWLR (Pt. 428) 352 at 405 para. E and Ali V. Albashir (2008) ALL FWLR (Pt. 415) 1681 at 1713 para. C; to urge us to resolve the second Issue in favour of the Appellant and hold that the refusal of the amendment amounted to denial of fair hearing to the Appellant.
ISSUE NUMBER 3 (THREE):
?WHETHER THE TRIAL COURT WAS RIGHT IN REFUSING TO RESOLVE AN ISSUE PLACED BEFORE IT UPON WHICH THE 1ST T0 4TH RESPONDENTS SOUGHT A DECLARATION AND STILL WENT AHEAD TO MAKE THE DECLARATION IN THEIR FAVOUR
The Learned Counsel for the Appellant on this Issue referred us to page 3 of the Records which contain the 1st ? 4th Respondents Reliefs in the Lower
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Court in submitting that the law is trite that a Court is to resolve all the Issues placed before it and that the Court below was duty bound by the claim of the Respondents not only to determine the qualification of Appellant but also that of the 1st Plaintiff/Respondent for the position of the Traditional Ruler of the Community.
?Referring us to page 237 of the Records para. 4, he pointed out that the Court below recognized his said duty when it referred to the ancillary issue raised by the Defence, yet it failed in the discharge of his duty when he held that the issue was non sequitur. The Learned Counsel asserted that the issue placed before the Court below was whether even if it is discovered that the Appellant was not qualified for the position, the 1st Plaintiff/Respondent himself was qualified for the position. According to learned Counsel, qualification is a composite word covering also the issue of both educational and the ancillary issue of the 1st Plaintiff not having resigned. We were therefore on the above score urged to resolve Issue 3 (three) also in favour of the Appellant and hold that the trial Court failed to resolve the issue placed
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before it.
ISSUE NUMBER 4(FOUR):
?WHETHER THE TRIAL COURT WAS RIGHT IN GRANTING DECLARATORY RELIEFS AS CLAIMED BY THE 1ST TO 4TH RESPONDENTS WITHOUT TAKING ANY EVIDENCE OR ALLOWING THEM TO PROVE THEIR CASE
The Learned Counsel for Appellant in answer to the above question cited Ibekwe V. Imo State Education Mgt. Board (2009) ALL FWLR (Pt. 488) page? on the principle of when a Court will grant declaratory relief and submitted that since the 1st ? 4th Respondents sought for declaratory reliefs against the Appellant, they had the burden of proof even if the Appellant did not file any defence to their action he noted that in the instant case, the learned Trial Judge, did not ask the Counsel on both sides to address him on issues for determination yet the Court held as it did at page 237 para. 2 of the Records.
?On the above score, the learned Counsel for the Appellant observed that the Reliefs sought by the 1st to 4th Respondents were not against the 1st Defendant/Appellant alone but against the 5th and 6th Respondents who were not afforded the opportunity to contribute to the proceeding over the so-called ?Address?
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which cannot take the place of evidence.
Emphasizing on the burden on the 1st ? 4th Respondents to prove by credible evidence their claims which they failed to discharge, he placed reliance on NNPC V. EVWORI (2007) ALL FWLR (Pt. 369) 1324 at 1343 ? 1344 paras. AH ? A; and submitted that the Plaintiffs/Respondents resolved to address the Court on the issues in which they sought declarations from the Court. There being no scintilla of evidence from the Plaintiff?s, he referred to Ogolo V. Ogolo (2006) ALL FWLR (Pt. 313) 4 at 13 ? 14 paras. H ? A; where the Supreme Court reiterated that Declaratory Relief cannot be granted without oral evidence even where the Defendant admitted the Plaintiff?s pleadings in submitting that the situation in this case is worse than that of Ogolo V. Ogolo (supra) because the Appellant filed a Statement of Defence denying the claims of the plaintiffs and there was no evidence yet the Trial Court granted the Respondents? Reliefs.
We were urged to invoke the decision of the Supreme Court in the Ogolo V. Ogolo case where it was held that the consequence of such action is to set
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aside the judgment of the trial Court and resolve the 4th Issue in favour of the Appellant.
In conclusion we were urged to allow the Appeal on the grounds set out at page 13 of the Appellant?s Brief.
ARGUMENTS OF LEARNED COUNSEL FOR THE RESPONDENTS ON ALL THE ISSUES
ISSUE NUMBER 1(ONE)
Reacting to the arguments of the Learned Counsel for the Appellant on the first Issue, A.C. Ibekaeme Esq contended that the refusal of the Court below to allow the amendment was right in law for according to him, parties particularly the 1st ? 4th Respondents and the Appellants joined issues in the Suit in 2004 and it was clear that the 1st ? 4th Respondents were challenging the academic qualification of the Appellant as stated in paragraphs 22 ? 23 of the Statement of Claim of the 1st ? 4th Respondents. He noted that there was nowhere in the Appellant?s pleadings where he pleaded that he had attended Community Grammar School, Awo Owama Orlu now Oru; neither did the Appellant plead that he obtained a Leaving School Certificate from any School and whether the Certificate was lost.
?The Learned Counsel referred us to page
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44 of the Records of what the Appellant pleaded in respect of his Educational qualification (W.A.E.C.) and which he did not also plead that the certificate was missing and that he was taking steps to getting a replacement. Learned Counsel for the Respondent again pointed out that it was immediately after the issue for determination was narrowed down to educational qualification that he remembered to have attended Community Secondary School Awo-Omama, Orlu now Oru and that he sat for West African School Certificate examination in 1973 but lost the certificate including the one given him by the said School which is no educational qualification.
?It was the further submission of the Learned Counsel to the 1st ? 4th Respondents that the Application to amend was brought after Pre-Trial wherein the learned Counsel for the parties had agreed on an Issue for Determination and accordingly was an afterthought, ill timed, malafides apart from the Appellant?s indolence and lack of diligence. Since Equity does not aid the indolent, the learned Counsel maintained that the Court stopped a miscarriage of justice as would have occasioned the 1st ? 4th
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Respondents through the antics of a lazy and indolent litigant. Seven (7) years, according learned Counsel, is too long a time for such application to be made to a Court in a matter in which hearing commenced since 18th of June, 2008 but for the inception of the new Rules of Court. Muhammed V. Kpalai (2001) FWLR (Pt. 69) 1404 at 1415 paras. C ? D and News-watch Communications Ltd. VS. Atta (2006) 12 NWLR (Pt. 993) 144 at 171, 173 and 175; were cited to buttress his above submission.
Arguing further on the need for the Court whose discretion it is to grant an Application for amendment to consider also the interest of the other party, he relied on Ojah V. Ogboni & Ors. (1976) ANLR 277 or (1976) 4 S.C. 69; he asserted that the Application was tainted with factors mentioned in the above cited case hence the trial Court was right to have refused same. We were therefore against the foregoing reasons urged to discountenance the Appellant?s argument on this issue and affirm the judgment of the trial Court.
?ISSUE NUMBER 2 (TWO)
In his response to the argument on this Second Issue, the learned Counsel for the Respondent pointed out that the
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law is trite that Application for amendment fall within the discretion of the Court and as such is not granted as a matter of course placing reliance again on Ojah V. Ogboni (Supra) and Alsthom V. Saraki (2000) FWLR (Pt. 28) 2267 at 2270 ? 2271; on the need to act judiciously and judicially in the exercise of the discretion based on the circumstances of the case and the factors mentioned in the above cited cases, he contended that it cannot amount to denial of fair hearing where a Court exercises its discretion taking into consideration the enumerated factors and that the learned Counsel for the Appellant misconceived the fact in issue in submitting that the Appellant was denied his right to fair hearing.
?In his view, the trial Court acted rightly to have refused the Application having taken into consideration those factors required in granting or refusing application for amendment like the timing, the attitude of the Applicant amongst others as was held in Alsthom V. Saraki?s case (Page 236 of the Records refers). He recalled the facts leading to the Application and the fact that the Applicant did not exhibit the said West African School
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Certificate he said he found after seven years but he rather exhibited a School Leaving Certificate and Testimonial of the School he purportedly attended which cannot take the place of West African School Certificate. Further still, the Learned Counsel argued, the Appellant did not also exhibit the affidavit he deposed to, for the purpose of informing the Zonal W.A.E.C Office Enugu on the loss of his purported West African School Certificate mentioned in the Affidavit in support of the Application all which show bad faith as he who goes to equity must go with clean hands. For this submission, he relied on Salako V. Williams (1988) 11 NWLR (Pt. 547) 505 at 521 paras. D ? F in submitting that the Applicant did not deserve the favour of the Court as he has no clean hands and to urge this Court to discountenance the Appellant?s submission on this Issue and resolve the issue in favour of 1st ? 4th Respondents.
ISSUE NUMBER 3 (THREE)
On this Issue, the Learned Counsel for the Respondent submitted that the Learned Counsel for the Appellant misconceived the law to have contended that the Trial Court was wrong to have refused to resolve an
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issue placed before it. He posited that even if the 1st ? 4th Respondents claimed Declaratory Reliefs but that issues are normally formulated for determination of the entire suit and in so doing, the Court during pre-trial usually directs Counsel to the parties in the Suit to formulate Issues for determination which it considers the crux of the matter. He took the view that where such directive is complied with, the issues formulated become the guide for determining the suit by the Court.
The Learned Counsel referred us to page 237 lines 10 ? 17 of the Records and insisted that in compliance with the Rules of Court, the only Issue agreed by the Counsel for the parties was that of educational qualification of the Appellant which the 1st ? 4th Respondents pleaded. He maintained that having narrowed down the issue, the Court?s Judgment would be based on the evidence adduced by the parties in arguing the said issue in their favour. According to Counsel, it was then a finding of fact by the trial Court that the Appellant does not possess the requisite qualification to be selected, presented and installed the Eze of his Community.
?He
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further argued that the only issue before the Court below being that of law and not fact upon which the Court ordered for an address by the parties Counsel in the face of the provision of the Imo State Law No. 3 of 1999 (as amended) which is for the educational qualification of School Certificate or its equivalent; cannot complain of denial of fair hearing. According to him, what the Appellant attempted to present through his ill-timed and over-reaching motion was Secondary School Leaving Certificate and Testimonial on what purports to be a letter-headed paper which the Court rightly derided at pages 240-241, of the Records. He therefore posited that the Court below was right in resolving the only issue as agreed by both Counsel in favour of the 1st ? 4th Respondents and made the Declaration in favour of the 1st ? 4th Respondents.
On the ancillary issue raised by the Appellant on whether the 1st Respondent did resign his appointment as a Civil Servant, the Learned Counsel agreed with the Learned Trial Judge that the issue is non-sequitur as according to the Court, it did not naturally follow from the Claim of the 1st ? 4th Respondents.
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The rationale for so submitting he added that the Appellant ought to have brought a cross action or Counter-claim, the Court not being a Father Christmas to have granted an order not sought. For the above submission, he placed reliance on Badmus V. Abegunde (1999) 1 LRCN 2912 Ratio 6 and Usikaro V. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150; to finally submit that the Court was right to have resolved the only issue agreed between the parties which was an issue of law and not on facts or mixed law and facts and accordingly, Issue Number 3 (three) should be resolved against Appellant and in favour of the 1st ? 4th Respondents.
ISSUE NUMBER 4 (FOUR):
On this last Issue, the Learned Counsel for the Respondents answered the question posed by the Issue in the affirmative insisting that the Appellant whose educational qualification was being challenged by the 1st ? 4th Respondent, in joining issues with the 1st ? 4th Respondents was unable to furnish his said West African School Certificate which was the only document with which he was to show that he was qualified more so when he did not list the said West African School
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Certificate in his List of Documents to be relied upon neither did he frontload the attached document as required by Rules of Court. Order 3 Rule 2 and Order 15 Rule 2 of the Imo State High Court (Civil Procedure) Rules, 2008 was relied upon in reiterating that the Appellant waited for seven years before it dawned on him to amend his pleadings to bring in the said educational qualification, adding that though the Trial Court rightly dismissed the Application, even if it was granted, the Appellant did not annex the West African School Certificate but a School Leaving Certificate and Testimonial from Community Secondary School, Awo-Omama which the Court observed was a mere letter that cannot take the place of a West African School Certificate as required by Law No. 3 of 1999 (as amended).
The Learned Counsel also re-stated that the Appellant also failed to annex the affidavit of loss of Certificate obtained in 1973 and that failure to frontload those documents showed that he has no requisite educational qualification to be the Eze of their Autonomous Community which was the crux of the 1st ? 4th Respondent?s case.
?In reaction to the
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submission of the Learned Counsel to the Appellant that as Plaintiffs, the onus was on the 1st ? 4th Respondents to prove their case on credible evidence which onus was not discharged as no evidence was led but the Court rather decided the case on the addresses of Counsel, the Learned Counsel for the 1st ? 4th Respondents rehashed his argument on the agreement of both Learned Counsel on the issue of qualification consequent upon which the Trial Court ordered for filing of Address.
?He maintained that the 1st ? 4th respondents filed his Address within 7 days given him but the Appellant?s Counsel rather brought the motion for amendment showing bad faith. In his view, the Court having refused the Application, there was nothing before the Court to take oral or documentation of the issue for determination, what was before the Court was issue of law and not of fact or mixed law and fact given the fact that the Applicant never frontloaded the purported educational qualification of the Appellant, it behoves on the Appellant to assert that he has the requisite certificate by front-loading same as a document he wished to rely on during the
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trial and this would have made it possible for the Court to have taken evidence on same.
On the whole and in conclusion, the Learned Counsel for the Appellant urged us to resolve Issue Number 4 in favour of the 1st to 4th Respondents, dismiss the Appeal as it is devoid of merit for the reasons stated in page 11 of the 1st ? 4th Respondents? Brief.
RESOLUTION OF ISSUE NUMBER ONE:
In the resolution of this first issue and indeed all other issues as have fallen for determination in this Appeal, our starting point shall be a consideration of the Rules of Court upon which the Appellant as Applicant predicated his Application and perhaps any other Rule of Court that warranted the stance taken by the Court below in dismissing the Appellant?s Application as well as entering Judgment for the Plaintiffs (now 1st ? 4th Respondents).
Beginning from Order 24 of the High Court of Imo State (Civil Procedure) Rules 2008, Rule 1 thereof donates to a litigant the right to amend his/her originating process, like pleadings in the following terms:
?1. A party may amend his Originating processes, at any time before the close of
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pre-trial conference and not more than twice during trial but before the close of the case.
Rules 2, 3, 5 ? 8 of Order 24 provide as follows:
2. Application to amend may be made to a Judge. Such Application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms as to costs or otherwise as may be just.
3. Where any Originating process, pleading or other process is to be amended a list of any additional witness to be called together with his Written Statement on oath and a copy of any document to be relied upon consequent on such amendment, shall be filed with the Application.
4. ———————————————————————————–
———————————————————————————-
5. Whenever any Originating process, pleading or other process is amended, a copy of the document as amended shall be filed in the Registry and additional copies served on all the parties to the action.
6. Whenever any Originating process, pleading or other process is amended, it shall be marked in the
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following manner:
?Amended?.day of pursuant to Order of (name of Judge) dated the ..of?….?
7. A Judge may at any time correct clerical mistakes in judgments or Orders, or errors arising there in from any accidental slip or omission upon application without an Appeal being filed; and above all, by Rule
8. Subject to the provisions of Rule 1 of this Order, a Judge may at any time and on such terms as to costs or otherwise as may be just, amend any defect or error in any proceedings and all necessary amendments shall be made for the purpose of determining the real question of issue raised by or depending on the proceedings.?
Apart from the limitations entrenched in Rule 1 to the effect that an amendment by a party may be made ?at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the
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case,? provisions relating to amendment of pleadings and other Originating processes, as made by our erstwhile rules of Court before the introduction of the fast-tracking procedure in almost all current High Court rules of our States and Federal High Court, have been similarly worded and have been the subject of avalanche of decisions some which have been unleashed on us here in this Appeal.
For instance, see Ogbuli V. Ogbuli (2008) ALL FWLR (Pt. 401) 953 at 967 ? 968 paras. H ? A; the celebrated case of Ojah V. Ogboni & Ors. (1976) A NLR 277; Alsthom S.A. V. Chief Dr. Olusola Saraki; (2000) FWLR (Pt. 28) 2267 at 2276 paras. D ? G. 2282 ? 83, paras. F ? B, per Achike, JSC; Chief Edmond I. Akaninwo & Ors. V. Chief O. N. Nsirim & Ors. (2008) ALL FWLR (Pt. 410) 610 and the epical and illuminating dissenting opinion of the erudite and emeritus Niki Tobi JSC at pages 645 paras. E-G; 646 paras. A ? C; 647 paras. A ? C and amongst others pages 655 ? 656 paras. C ? B; and 658 paras. A ? G in the last case.
?If I may take the liberty to quote this Emeritus jurist who was at his
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elements in his enunciation of the principles guiding amendments when Order XXXIV of the High Court of Rivers State (Civil Procedure) Rules fell for interpretation thus at page 655 paragraphs D ? H to 656 paras. A ? D:
?This Appeal reopens the old issue of amendment of pleadings. The principles are as old as hale. Let me take them briefly here. First, the omnibus one. Our adjectival law leans heavily in favour of amendments and is generally against the refusal of amendments. Although the pendulum weighs or tilts in favour of granting amendments, Courts of Law are entitled to refuse amendments in deserving cases. Trial Courts must examine the application for amendment very carefully in the light of the peculiar facts of affidavit evidence. In the exercise, the Courts will consider the peculiar facts of each case.
In the often cited English case of Cropper V. Smith (1884) 26 QBD 700, Bowen LJ said:
?Now, I think It is well established principle that the object of Courts is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their
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cases. I know of no kind of error or mistake which, if not fraudulent.the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour or grace? It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without prejudice.?
The above dictum of Bowen LJ has been cited with approval in a plethora of Nigerian cases amongst which are Okeowo V. Migliore (1979) 11 S.C. 138; Ojah V. Ogboni (1976) 4 S.C.69; ably cited by Learned Counsel for the Appellants.
His Lordship went on to cite the dictum of Ademola, CJF (as he then was) in the case of Adeleke V. Awoliyi (1962) 1 ALL NLR 260 at 262; that it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action
32
pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and in order to expedite the hearing of an action, the Court is to award costs against any delinquent party rather than dismiss or strike out a case for a fault in the proceedings prior to the hearing of the case.
In the course of his contribution, the Judicial Sage also reflected on the principles enunciated in the English case of Collins V. Vestry of Paddington (1880) 5 QBD 368; which was followed by our Supreme Court in Alsthom S.A. V. Chief Olusola Saraki (2000) FWLR (Pt. 28) 2267, (2000) 14 NWLR (Pt. 687) 415; that in an Application for amendment, the Court will take into consideration a number of factors which include:
(1) The attitude of the parties in relation to amendment;
(2) The nature of the amendment sought in relation to the Suit;
(3) The question in controversy and;
(4) The time when the amendment is sought.
Guided by the above authorities and the dicta of our Learned sages both leaving and aforegone, I was minded to hold (as I do hereby reiterate), in the case of University of Ilorin V. Adesina (2008) ALL FWLR
33
(Pt. 400) 768 at 776 paras. A ? B that:
?All the Rules on amendments seem to be ad idem that the object of amendments is to obviate situations whereby manifest injustice is done to any in recent litigant on account of the blunders or inadvertence of his counsel particularly nowadays that blunders occur with such disturbing irregularity in litigations.”
I had further held at the same page in paras. B ? D that:
?The Courts have through the years taken a common stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time, and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether the proposed amendment should be allowed is therefore whether the party applying to amend can do so without placing the opposite party in such a position which cannot be addressed by that panacea which heals every sore in litigation, namely: Costs.?
In the instant case, parties are ad idem that the crux of the matter
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and the issue for trial as settled at the pre-Trial Conference was whether the Appellant had the minimum educational qualification to be the Traditional Ruler of his Community and whereas the Appellant contends that the amendment sought was to place before the Court his said qualification, the 1st ? 4th Respondents in line with the decision of the Court below, reason the contrary insisting that there was no where the Appellant pleaded the West African School Certificate at the earliest opportunity and that it was after the narrowing down of issues that the Appellant woke of from his slumber since 2004 when issues were joined.
?The Learned Counsel for the 1st to 4th Respondent has also pilloried the Application in that it is brought mala fides and with intent to over reach the Respondents more especially when what was tendered was not the West African School Certificate purportedly obtained in 1973 at the Community Secondary School, Awo Omama, Orlu now in Oru. Apart from the above, the Affidavit of Loss of Certificate and the letter to the W.A.E.C Zonal Office intimating the office of the loss of the said certificate were not annexed to the
35
affidavit. He has therefore submitted that the Appellant brought the Application belatedly and that 7 years delay was inordinate such that the Court below was right in dismissing the Application.
On a careful perusal of the Records, there is no doubt that the 3rd Relief sought by the 1st ? 4th Respondents as earlier reproduced at the beginning of this Judgment was for a Declaration that the 1st Plaintiff and not the 1st Defendant was/is the proper person entitled on qualified for recognition by the 2nd Defendant as the Traditional Ruler of Obinnoha, Autonomous Community Mbaitoli Local Government of Imo State, the said Plaintiff (1st) having been identified, selected, presented and traditionally installed as the Eze and accordance with the Resolution of the Umuduru Community to produce the first Traditional Ruler.
In support of this Relief, the 1st ? 4th Respondents had pleaded in their paragraphs 22 and 23 of Statement of Claim inter alia:
?22. For purposes of emphasis the Plaintiffs aver that the 1st Defendant has never attained any educational qualification that is up to West African School Certificate; General Certificate of
36
Education (G.C.E. O/L) or their equivalents required of any person wishing to occupy the said stool; and
23. It is against this back drop that the people of Umuduru Community vehemently opposed the candidature of the first Defendant and preferred the 1st Plaintiff.?
Joining issues on the above averments of the 1st ? 4th Respondents, the 1st Defendant/Appellant in paragraph 2 of his Statement of Defence denied paragraphs 22 and 23 of the 1st ? 4th Respondents Statement of Claim amongst other paragraphs and in paragraph 3 of the said Statement of Defence further pleaded:
?3. Save to say that the Plaintiff is a Teacher and the 2nd ? 4th Plaintiffs do not have any identifiable means of livelihood and that he 1st Defendant is a holder of WAEC, the 1st Defendant denies paragraphs 1, 2, and 3 but admits paragraphs 4, 5, 7 and 8 of the Statement of Claim.?
At page 45 of the Records paragraph 6 of the Statement of Defence, the Appellant again merely denied paragraphs 22 and 23 amongst others of the Statement of Claim save to say that the Plaintiffs had been hurling insulting strictures on him since his people
37
recognized his (Appellant?s) heroic virtues at “Igwudu Omumu? Umuduru to be their Leader.
It is pertinent to note that of all the fifty-one paragraphed Statement of Defence, the Appellant did not remember or deem it necessary to state the name of the School he attended and the year of attainment of his WAEC Certificate as well as the circumstances attending the loss of that Certificate until after issues had been narrowed down at the Pre-Trial that the Appellant came up with his application for amendment and the Annexed Amended Statement of Defence where in paragraphs 2 to 8 thereof he pleaded that:
?2. Save to say that the 1st Claimant is a Teacher and the 2nd ? 4th Claimants do not have identifiable means of livelihood, the 1st Defendant denies paragraphs 1, 2 and 3 of the Statement of Claim. The 1st Defendant admits paragraphs 4, 5, 6, 7 and 8 of the Statement of Claim and further adds that he is a holder of Secondary School Certificate.
3. The 1st Defendant also pleads that he attended Community Grammer School Awo-Omama, Orlu now in Oru West L.G.A. and was issued with a Secondary School Leaving Certificate and
38
Testimonial to show for that in 1962.
?4. The 1st Defendant however avers that around the 1990?s vicious people from his village trumped up charges of murder against him and one person. He was remanded at the Federal Prisons Owerri for years without bail, until the case was finally determined, and he was discharged and acquitted by this Honourable Court.
?5. During that period, the 1st Defendant pleads that he was confused, his family scattered, enemies came and vandalized his house and carted all his valuables including relevant documents and educational certificates.
?6. The 1st Defendant pleads that he made very serious and frantic search for these documents and his other personal effects to no avail, but that recently worried so much about the loss of this certificate, he caused one of his sons Chima to climb the ceiling of his father?s ancient storey building built around the 1950s where his late father kept some vital things, to his chagrin his said Secondary School Certificate dated 21/6/62 was found there. It is hereby pleaded and shall be relied upon at the trial of this suit.
?7. In 1973, the 1st
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Defendant also sat for and obtained the West African School Certificate but during that time he was away from home, he lost it and it has not been found till date.
?8. The 1st Defendant also plead that he swore to an Affidavit of loss in Court and applied to WAEC Board for the issuance of the duplicate copy of the said certificate and also applied to the Zonal Headquarters 1973 Candidates when he sat for the examination. But that they are yet to send these to him or a copy of new discoveries of document.?
It is also worthy of note that the Appellant deposed to similar facts in his supporting Affidavit to the Application for amendment in paragraphs 2 ? 4 that he attended Secondary School Awo-Omama Orlu now Oru Local Government Area and was issued original copy of his Secondary School Leaving in 1962 and how he was unfortunately framed up in the 1990s and incarcerated for years in prisons and later discharged but before he was so acquitted he came to discover that his house had been vandalized by evil men and his certificates including the Secondary School Leaving Certificate and Testimonial vandalized. In paragraphs 5, 6, 7 and 8 he
40
deposed to how his son eventually saw his said leaving certificate after the last adjournment of the case and he brought same to the attention of his Learned Counsel who informed him that there was need to seek leave of the Court to plead same as it would enhance the justice of the case
He further disclosed how three years after the Civil War, he also sat for the West African School Certificate examination that is 1973 and was issued with the original certificate which got lost during the period of his long incarceration and absence from home. He also deposed that he applied to the West African Examination Council for issuance of the duplicate copy of it after he had sworn to an affidavit of loss certificate by the Registrar but who has not yet issued the duplicate certificate to him.
Contrary to the submission of the Learned Counsel to the 1st ? 4th Respondents the Leaving Certificate and Testimonial duly certified as well as the Affidavit of Loss of Certificate were annexed to the Affidavit in support of the motion for amendment.
?As argued by the Learned Counsel for the 1st ? 4th Respondents, the 1st Respondent deposed to a
41
counter-Affidavit on behalf of the others. In the said Counter-Affidavit of Nineteen paragraphs dated and filed 18th March 2010 and 27/7/10; the Respondents deposed to the following facts in opposition to the amendment: (1). That they filed the suit about six years before the application, (2). The parties had long settled their pleadings and he opened his evidence on 18/6/2008 before the New High Court Rules came into effect that year; (3). Parties had filed their sworn depositions and served on each other and (4). His Counsel informed him and he believed him that both Counsel had filed their Pre-Trial Conference Answers; (5). The case came up on 30/6/2010 for what is called Pre-Trial Conference with both Counsel in attendance and upon their agreement both Counsel informed the Court that only one(1) issue was identified for determination of the entire suit which was whether the 1st Defendant was qualified to be recognized as the Traditional Ruler of Obinnoha Autonomous Community; (6). Upon the above agreement, the Court ordered that Counsel should file Written Addresses on the said Issue within a period of time and that while their Plaintiffs/Respondent did, the
42
1st Defendant/Appellant did not comply rather he brought the said Application to over reach the issue in contention.
He also averred that earlier and precisely on 29/10/2009 the 1st Defendant deposed in an affidavit to the effect that: ?I am not a graduate but I passed my standard six in those days. I am not rich but I observed and performed all the Customary and Traditional rites stipulated by Obinnoha People Assembly towards her sacred Ezeship stool.? (see paragraph 13 of the Counter-Affidavit).
The Respondents also further averred that the Appellant never disclosed that he attended the Community Grammar School Awo-Omama where he was issued with an original copy of Secondary School Leaving Certificate in 1962 and accordingly paragraphs 2, 3, 4 and 5 of the Defendant/Appellant?s Affidavit were concocted for the purpose of this case, As for paragraphs 6 and 7 thereof with new facts when allowed will stifle the course of justice of the case and that the story of the Appellant is false and a fabrication to over reach which will cause a miscarriage of justice on our part.
?Finally, the Respondents stated that they shall be
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prejudiced since they were taken by surprise by the Application which is not in the interest of justice more particularly when the Appellant did not exhibit the Application to the Registrar of WAEC Zonal Headquarters Enugu State which he claimed he did. The 1st ? 4th Respondents also annexed the Application for Issuance of Pre-Trial Conference Notice pursuant to Order 25 of the High Court (Civil Procedure) Rules of Imo State, Hearing Notice for Pre-Trial Conference, Pre-Trial Information Sheet; pre-Trial Conference Answers. To standard questions as well as the Written Answers To The Questions Contained In the Pre-Trial Information Sheet Forum 18.
It has to be noted that at page 227 of the Records (the Written Answers To The Questions Contained In the Pre-Trial Information Sheet) the 2nd and 3rd Defendants in answer to question (8) whether there was any way in which the Court could assist the parties to resolve their dispute or particular issues in it without the need for a trial or full trial, the Defendants answered: ?No, but would consider any good proposals.?
?Earlier on at page 225 of the Records on a similar question being asked
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the Learned Counsel for the 1st ? 4th Respondents under question 8, answered:
?8. No, there is no way the Court can assist the parties to resolve the dispute or any issue without the need for a trial because of the nature of the Claim which borders on Ezeship dispute.? On the question of law arising from his case, the Learned Counsel answered thus; ?it is whether the 1st Defendant was properly recognized in accordance with the law establishing the Traditional Rulers and Autonomous Communities Law of 1991 as Amended having not attained the mandatory minimum qualification of West African School Certificate or its equivalent
As for the Defendant, they had answered in paragraphs 8 and 10 of the Questions contained in the Pre-Trial Information Sheet (Form B), that they would consider any good proposals and that there was no way the Court below would assist them (parties) to resolve their dispute or particular issues without the need for a trial or full trial.
?He also did not state any question of law for determination in the Pre-Trial information sheet. The above position notwithstanding and even though there is no
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record as to the Order of Court on the Sole Issue which is the educational qualification of the 1st Defendant for the purpose of becoming the Eze of the Community in question, the Learned Counsel for the Respondents in his Final Address on the Issues agreed upon (see pages 162 ? 163 of the Records) formulated the first Issue as to ?Whether the 1st Defendant was properly recognized in accordance with the law establishing the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 as amended, having not attained the mandatory minimum qualification of West African School Certificate or its equivalent
The Learned Counsel added that: ?However, the defence raised another issue which I think, is not relevant to the determination of this matter. The issue however, is, ?2. Whether the 1st Claimant duly resigned his appointment being a Civil Servant in accordance with the Civil Service Rules
?With the greatest respect to the Learned Counsel to the 1st ? 4th Respondent, the second Issue formulated by the Appellant in view of his pleadings and as contained in his final Address on the Issues Raised is
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?2. Whether the 1st Claimant is qualified to contest the Ezeship throne of Obinnoha having not resigned from Civil Service before the presentation of this Suit.?
We shall come to this question anon while considering Issue Number 3. It suffices to state on the principles enunciated in the cases cited and as found by the Lower Court that while the Respondents claimed that the Appellant was a drop out having not attended secondary School and has no certificate to show, the Appellant on the other hand refuted the allegation and asserted that he attended Awo-Omama Community Grammar School in Oru West and has a certificate to prove it.
In my humble view and based on the decision in the AlSTHOM?S case as cited and the conditions set down for the grant or refusal of Application for amendment, the Appellant inordinately delayed in bringing the Application for amendment having delayed until the issues in contention had been narrowed down before he deemed it necessary to plead the Secondary School he purportedly attended with the School Leaving Certificate and Testimonial issued as far back as 1962. To worsen matters, the Appellant did not
47
tender the purported letter he wrote to the Zonal Office of the West African Examinations Council, Enugu although the Affidavit of loss of Certificate has been tendered.
Although the amendment was meant to place his said qualification before the Court, the story as painted in his affidavit as to his sudden discovery of the School Leaving Certificate and Testimonial will not enhance his case since it even goes to show that he is a drop out from Secondary School. The Appellant also did not depose to a further Affidavit to Counter the averments of the 1st ? 4th Respondents in paragraph 13 of their Counter Affidavit where they alleged that the Appellant had admitted that ?he passed his Standard Six in those days? such that any other Certificates purporting to be secondary school certificate or testimonial are either fabricated or concocted to hoodwink the Court and his community in order to buy time to continue the occupation of the stool.
?Having narrowed down the issues and the Final Addresses of Learned Counsel duly exchanged, the Appellant?s Application would prejudice the case of the Respondents. The Court was therefore right
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to have dismissed the Appellants application for amendment. With the greatest respect to the learned counsel for the Appellant, in view of the current fast-tracking procedure and the settlement of issues for determination by the parties, the need for evidence did not arise at that stage of the proceedings. I am therefore of the considered view that even the case of Anakwe V. Oladeji is against the Appellant.
In Akaninwo V. Nsirim (supra) SC at 656 ? 657, Tobi, JSC had advised that in dealing with applications of this nature, the Court should consider the time the application is brought whether it was brought at the earliest opportunity taking also into account whether the Applicant is a man of due diligence and business and ought to have procured the spurious certificates at the earliest opportunity. Going by the afore-stated admonition, I agree with the Learned Counsel for the Respondents that the Appellant was most indolent.
?As the Learned Tobi JSC, rightly held in the above cited case, while it is the position of the law that a party should not be inhibited from presenting his case there is also the other side of the coin which is that a party
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owes the administration of justice and the judicial process a duty to present his case in whole or en-bloc and not by installments. Accordingly, when a Court is considering amendment of pleadings (as in this case) the judge must also be satisfied with the bona fides of the case or amendment sought.
Accordingly, I agree with the Learned Trial Judge that the conduct of the Appellant did not deserve any sympathetic consideration of his fabricated case as the nature of the amendment will not only embarrass the Respondents but would have over-reached them and prejudiced them having filed their Written Addresses. This issue is therefore resolved against the Appellant.
ISSUE NUMBER TWO:
My answer to the question posed by this Issue and as a natural consequence of the resolution of the first issue in favour of the Respondents is ?nay? as the Appellant who had all the time at the earliest opportunity to effect the amendment sought in the Court below, simply slept over his right to fair hearing only to wake up to bring that spurious Application with fabricated facts in support.
Guinness Nig. Plc V. Ufot (2008) ALL FWLR (Pt. 412) 1113 at
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1138 paras. E ? F; must have rightly decided that the test of fair hearing is the impression of a reasonable person who was present at the trial would get on whether justice has been done in the case. Besides, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by Section 36(1) thereof, also provides for the right of every litigant to be given the opportunity to present his case.
In the instant case, the Appellant was given every opportunity to present his case and he filed all necessary processes until the Issues for determination were settled only for him to spring his surprise on the 1st ? 4th Respondents.
In S & D Construction Company Ltd. V. Chief Bayo Ayoku & Anor. (2011) LPELR ? 2985 (SC.) per Adekeye, JSC while relying on the cases of Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Fagbule V. Rodrigues (2002) 14 NWLR (Pt. 765) 188, Adeniran V. NEPA (2002) 14 NWLR (Pt. 786) 30; Bamgboye V. UNILORIN (1999) 10 NWLR (Pt. 622) 290 and Awoniyi VS. The Registered Trustees of AMORC (2000) 4 SC (Pt. 1) 103; posited that the right to fair hearing is a constitutional right entrenched in Section 36 of the 1999
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Constitution which right is very essential for securing justice.
The basic attributes were enumerated to include: (a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case; (b) that the Court or tribunal gives equal treatment, opportunity and consideration to all concerned; (c) That the proceedings be heard in public and all concerned be informed of and have access to such a place of hearing; (d) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must be seen to have been done.
The Learned Emeritus Law Lord further posited in line with the authorities of Okoye V. Nigerian Construction and Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501, Omo V. Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) 444, Ogolo V. Fubara (2003) 11 NWLR (Pt. 31) 231 and Ossai V. Wakwah (2005) 4 NWLR (Pt. 959) 208; that the burden is on the party alleging breach of fair hearing in a case to prove the breach and he must do so in the light of the facts of the case (see Maikyo V.
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Itodo (2007) 7 NWLR (Pt. 1034) 443; but that the Appellant as in this case cannot complain of fair hearing when he was afforded opportunity to present his case and to also defend the Counter-Claim, but failed to avail himself of that opportunity. The Appellant can therefore not blame the trial Court for failure to prosecute his case. Thus, a party who had been given the opportunity to file his statement of Defence, Depositions on Oath and documents sought to be relied on and indeed the Final Address in this case, but failed to utilize the seven years the case had lasted without amending his pleadings only to file the Application for same after the completion of Pre-Trial Conference where of parties agreed to narrow down the issues for resolution subsequent upon which the Court ordered for the Final Written Addresses cannot turn round to complain that he was denied fair hearing. Omo V. Judicial Service Commission (supra) at 444 and Okoye V. NC & FC Ltd (1991) 6 NWLR (pt. 199) 501 at 541 refer .
In the instant case, notwithstanding the decision in Akaninwo V. Nsirim (supra) at 671 paras. F ? G; that a refusal to allow the Appellant in that
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case the amendment of his Statement of Defence translates to refusing him to call evidence which would have been necessary had the amendment sought been granted and that the consequence is a denial of his right to fair hearing, the trial Judge rightly refused the grant of the Application as no useful purpose than the prejudice and over reaching of the Respondent would have been served.
The proceedings of the Court below was not rendered a nullity notwithstanding the barrage of authorities like the ones cited by the Learned counsel for the Appellant.
?As the Learned Counsel for the Respondent rightly argued, the grant of Application of the nature sought by the Appellant, called for the exercise of the Lower Courts discretion to grant or not to grant same and like all judicial discretions, he exercised same judiciously and judicially taking into consideration the peculiar circumstances of the case like the injustice it would cause to the Respondents, the fact that the Application was brought mala fides and calculated to over reach the Respondent and the fact that the injury caused to the 1st Respondent and others who felt that the 1st Respondent was
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the appropriate person to be recognized by the 3rd Defendant cannot be assuaged with costs particularly as the issues in the case had been narrowed down and the cases for the parties closed.
Besides, as said earlier, the Appellant was most indolent apart from his Affidavit being self contradictory such that no reasonable Tribunal would rely on same to grant such an Application. See again the dictum of Tobi, JSC at page 660 of Akaninwo V. Nsirim (supra) paras. G ? H; on the way and manner a Court should exercise its discretion and the position of the law that:
?Where the trial Judge correctly exercised his discretionary power, an Appellate Court cannot interfere. The law does not allow an Appellate Court to change or metamorphose into a Court of trial or take the place of a Court of trial and grant the application for amendment as such Court, if it heard the Application in that capacity. On the contrary, Appellate Court should look at the Application granted or refused from the cold record of Appeal and taken Appellate decision borne out from the Records.?
Guided by the above dictum of my Lord the Emeritus Tobi, JSC; I have
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looked at the totality of cold Records of Appeal and I reiterate that the facts do not support the grant of the Application for amendment. This Issue is also resolved against the Appellant.
ISSUE NUMBER THREE:
In the resolution of this Issue, I must not hesitate to agree with the Learned Counsel for the Appellant?s statement of the law that a Court of law particularly Trial Courts as well as penultimate Courts are duty bound to resolve all issues placed before them except in the few exceptional circumstances recognized by law. There are authorities galore on this position of the law. In Babaginda S.M. Nguroje & Anor V. Hon Ibrahim Tukur Elsudi & Ors. (2012) LPELR ? 20865 (CA) PP. 119 ? 20 paras. A ? E, I had cause to restate the time-honoured principle of our jurisprudence when I reasoned following a similar issue raised in that case by one of the Senior Counsel that: ?(1) without wasting any judicial time I am in complete agreement with the submissions of Learned Senior Counsel for the Appellant that a Court of law particularly a Court of first instance is duty bound to pronounce on all issues raised before it
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by the parties and put forward for determination before the Court.”
The decisions in Nwokedi V. Egbe (2005) 9 NWLR (Pt. 930) at 307 per Galadima, JCA; Uzuda V. Ebigah (2009) 15 NWLR (Pt. 163) 1 at 21 ? 23, Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131; are quite instructive. The need for Courts to consider all issues joined by parties, was emphasized long ago in the case of Ojogbue V. Nnubia (1972) 6 S.C. 227; Per Coker, JSC; where the Learned Judicial Guru/legend opined: ?A judgment of a Court must demonstrate in full a dispassionate consideration of issues properly raised and heard and must reflect the result of such exercise, but in the present case it cannot be said that the judgment as it stands does this, for throughout the judgment the trial judge made no clear findings in which he unequivocally upheld, as against the Claims of the plaintiffs, the contention of the Defendants on any major issues, with the result that the basis on which the Plaintiff?s case was dismissed cannot be seen nor, what is worse the ground on which the trial Court had proceeded to enter judgment for the Defendants. The case is remitted to the High Court
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for rehearing.?
In the above case, I further reasoned and which reason I hereby adopt, that from the dictum of Coker JSC, above cited, it is clear that the emphasis is on proper, relevant issues, that go to the substance or foundation of the case and not peripheral, frivolous, academic and irrelevant issues which must be resolved in the determination of the case. Accordingly, where at the conclusion of the case the material issue(s) the determination of which is/are likely to affect the outcome of the dispute between the parties, is/are left unattended to or unresolved, the issues between the parties would be deemed not to have been determined. This explains why the Apex Court has held that where several issues have been raised by parties which would go a long way in determining the dispute between the parties, such issues must be resolved one way or the other.
?On the other hand, where the issue or issues not relevant in the determination of the case is/are disregarded, the Court owes it a duty to specify the reason(s) why they are so considered irrelevant. The rationale behind this stance of the law is that in all cases where issues have been
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joined, the Court is duty bound to state how the issue has been disposed off. See Welle & Anor V. Okechukwu (1985) 6 S.C. 132 at 145 ? 146; Per Karibe ? Whyte JSC.
It is therefore in the light of the above that we shall look it at Issue No. 2 of the Appellant which the Court below parried away at page 242/14 of the Records/Judgment of the Trial Court that:
?As to the ancillary issue raised by the Defence Counsel i.e. whether the 1st claimant duly resigned his appointment being a Civil Servant in accordance with the Civil Service Rules all I can say is that resolving this issue one way or the other will not in any way affect the justice of this case and besides there is no counter-Claim or cross-action so it is non sequitur.?
I must confess that the Learned Trial Court was in grave error to have held as it did that since the Appellant did not Counter-Claim or file a Cross-action, his issue was non sequitur. With the greatest respect to the Learned Trial Judge, the Appellant had raised the fundamental issue of jurisdiction at page 51 of the Record in paragraph 44 of his Statement of Defence thus:
?44. At the
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trial of this Suit the 1st Defendant shall contend that this case is incompetent and as such the Honourable Court lacks jurisdiction to entertain it because the 1st Plaintiff being a person who is still in the service of the State Government as a Public Servant is not qualified to hold himself out or allow himself to be held out as the ?Eze Elect? of Obinnoha Autonomous Community.?
The Defendant also questioned the locus standi of the Respondents in paragraph 47 of the Statement of Defence and further pleaded in part that ?The 1st Defendant shall during the trial of this Suit urge the Court to dismiss the same because the Plaintiffs lacked the locus standi to institute the action,? apart from raising another jurisdictional issue in paragraph 50 of the Statement of Defence that proper parties were not in Court.
The other reason why the issue of the non-qualification of the 1st Respondent is relevant, can be gleaned as rightly submitted by the Learned Counsel for the Appellant, from Relief Number 3 of the 1st ? 4th Respondents that the 1st Plaintiff and not the 1st Defendant is the proper person entitled or qualified
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for recognition by the 2nd Defendant as the Traditional Ruler of Obinnoha Autonomous Community having been duly identified, selected, presented and traditionally installed as one, in accordance with the resolution of the Umuduru Community which was mandated to produce the first traditional Ruler.
I have searched through the entire Records but cannot see where the 1st Respondent led evidence to buttress this claim and assuming as parties have agreed that the case was to be decided purely on law, the fact that the Appellant did not attain the requisite educational qualification and therefore does not qualify for the Ezeship?s stool; does not automatically qualify the 1st Respondent as it has further been alleged against him that he was also disqualified because he had not resigned as a Civil Servant at the time he was purportedly identified, selected and installed. The Court therefore had the onerous duty of determining in the first place the locus standi of the 1st Respondent to even vie not talk of initiating proceedings to challenge the Recognition of the Appellant as the Eze.
?Just as the law is applicable to the Appellant so it is to the 1st
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Respondent. In any case, both the Learned Counsel for the 1st – 4th Respondents and the Court below had reproduced the excerpts of Section 2 of Traditional Rulers and Autonomous Communities Law which provides that:
?The Governor shall not recognize any person as the Eze of an autonomous Community unless he is satisfied that such a person (a) was identified, selected and approved in accordance with the Customary Law of the autonomous community concerned;
(b) ———————————————————————————–
(c) Is not a full-time public servant.?
In the locus classicus of Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 595; which has been followed in a plethora of cases, the Supreme Court per Bairamian F.J stated the conditions under which a Court can be seized of jurisdiction to include.
1. It is properly constituted as regards members of the Bench and no member is disqualified for one reason or the other;
(2) the subject matter is within its jurisdiction;
?(3) the case comes properly before the Court initiated by the process and upon fulfillment of a condition precedent to the exercise of
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jurisdiction. See, Egharevba V. Eribo & Ors. (2010) 9 NWLR (Pt. 1199) 411 S.C.; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; Nwankwo V. Yar?Adua (2010) LPELR ? 2109 (SC) at B6 paras. D. E. where Ogbuagu, JSC held that; it is firmly settled that where the issue of the Court?s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously.?
In his words At page 39 paras. C ? G: ?Secondly, as stated earlier being a jurisdictional issue, it could or can be raised at any stage of the proceedings on Appeal. See Amadi V. NNPC (2006) SCNJ page 11.
Secondly once an act is without jurisdiction as in the instant case, the proceedings is a nullity no matter how well conducted. Adesola V. Alhaji Abidoye & Anor. (1999) 12 SCNJ 61 at 79 is not correctly cited (it is also reported in (1999) 10 ? 12 SC 109). This position is not only trite but it is also well settled. In other words, there is no doubt that a judgment or order made by a Court without jurisdiction is a nullity.?
Finally, on the issue of locus standi, the Supreme Court in numerous cases
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has also decided on the concept of locus standi. In A.G. Kaduna State V. Hassan (1985) LPELR – 617 (SC) Oputa JSC, of blessed memory opined on the term thus; ?The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest.?
The Apex Court in Dr. Augustine Mozie & Ors. V. Chike Mbamalu (2006) LPELR ? 1922 (SC) Per Tobi, JSC held that the competence of a person to file an action relates to jurisdiction and it can be raised at any stage even at the Supreme Court or any Court suo motu.
?In view of the fundamental importance of locus standi in the adjudicatory process once the Appellant raised it in his pleadings the Court had no other option before than to resolve it before proceeding with any further adjudication.
The Appellant not only pleaded the jurisdictional competence of the Trial Judge on the ground of locus standi of the 1st ? 4th Respondents but he also raised it as an ancillary issue for determination. Accordingly, the Court below could not therefore, seriously have contended as the
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Learned Counsel has also submitted, that the Appellant?s Issue does not logically follow from the claim of the Plaintiffs and that if the Appellant wanted to make it an issue, he ought to have brought a cross-action.
With the greatest respect to both the Learned Trial Judge and Counsel to the Respondents, the issue raised by the Appellant went to the foundation of the case for if the Court had no jurisdiction at the onset, then the entire trial was an exercise in futility and a complete nullity, no matter how brilliantly or well conducted as settled by motley authorities. In respect of the authorities of Badmus V. Abegunde (supra) and Usikaro v. Itsekiri Land Trustees (supra) cited by the Learned Counsel for the Respondents, I had the privilege of a perusal of those cases and I am afraid that they were cited out of con as there were two Issues for determination as adopted by the Learned Counsel for the parties even though the 1st Respondent and Court tried to trivialize the importance of the issue identified by the Appellant.
?Not having considered that very salient issue as raised by the Learned Counsel for the Appellant, I adopt the authorities
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of Guinness (Nig.) Plc. V. Ufot (2008) TFWLR (Pt. 412) 1113 at 1138 (paras. E ? F); Akaninwo V. Nsirim (supra) at 671 paras. F ? G; Tsokwa Motors (Nig) Ltd. V. UBA (Nig)PLC (supra), N.I.I.T ZARIA V. DANGE (supra) Adamu V. Akukalia (2008) FWLR (pt. 428) 352 at 405; and Ali V. Albashir (supra); to hold that the Appellant was denied fair hearing which occasioned him miscarriage of justice. Accordingly, this Issue is again resolved in favour of the Appellant.
ISSUE NUMBER FOUR:
I adopt my reasoning on Issues 1 and 2 having agreed that parties fought their cases on Issues of law and ordinarily since the Court below did not place any premium on the certificate pleaded in the course of the Application for Amendment; it ought to be right to have declared in favour of the 1st Respondent. But since by our stance on Issue Number 3 that the Court ought to have determined the locus standi and competence of the 1st Respondent not only as the proper person to be recognized as the Eze not to talk of initiating proceedings, the Court was wrong to have granted the Declaratory Relief. I resolve Issue Number 4 against the Respondent and in favour of the Appellant.
?On the
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whole, the Judgment of the Lower Court cannot stand and it is hereby set aside. I make an order remitting the case to the Chief Judge of Imo State for reassignment to another Judge for hearing de novo. No order as to Costs.
Other Citations: (2016)LCN/8695(CA)
