ALI v. UZOIGWE & ORS

CITATION: (2016) LPELR-40972(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON FRIDAY, 27TH MAY, 2016Suit No: CA/OW/249/2011

Before Their Lordships:

IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenNZE EDWARD ALI - Appellant(s)

And1. ENGR. CORNELIUS CHIKA UZOIGWE2. MR. SAMUEL OBI3. NZE NATHANIEL NWANACHIMA4. RUFUS UKWANDU(For themselves and on behalf of Members of UmuduruCommunity in Obinnoha Community Excepting the 1stDefendant.)5. THE EXECUTIVE GOVERNOR OF IMO STATE6. THE ATTORNEY-GENERAL OF IMO STATE

- Respondent(s)

RATIO DECIDENDI1. ACTION - LOCUS STANDI: Nature of the legal concept of locus standi

"Finally, on the issue of locus standi, the Supreme Court in numerous cases 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 ofstanding or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicanthas 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 aperson 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 theCourt had no other option before than to resolve it before proceeding with any further adjudication."Per AGUBE, J.C.A. (Pp. 63-64, Paras.F-E) - read in context

(201

6) LP

ELR-40

972(

CA)

2. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did notutilize it can bring an action for breach of fair hearing"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) 11NWLR (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 acase to prove the breach and he must do so in the light of the facts of the case (see Maikyo V. Itolo (2007) 7 NWLR (Pt. 1034) 443; butthat the Appellant as in this case cannot complain of fair hearing when he was afforded opportunity to present his case and to alsodefend the Counter-Claim, but failed to avail himself of that opportunity. The Appellant can therefore not blame the trial Court for failureto 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 berelied on and indeed the Final Address in this case, but failed to utilize the seven years the case had lasted without amending hispleadings only to file the Application for same after the completion of Pre-Trial Conference where of parties agreed to narrow down theissues for resolution subsequent upon which the Court ordered for the Final Written Addresses cannot turn round to complain that hewas denied fair hearing. Omo V. Judicial Service Commission (supra) at 444 and Okoye V. NC & FC Ltd (1991) 6 NWLR (pt. 199) 501 at541 refer."Per AGUBE, J.C.A. (Pp. 52-53, Paras. D-E) - read in context

3. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Test of fairness/fair hearing in proceedings"Guinness Nig. Plc V. Ufot (2008) ALL FWLR (Pt. 412) 1113 at 1138 paras. E ??? F; must have rightly decided that the test of fair hearingis 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 everylitigant to be given the opportunity to present his case."Per AGUBE, J.C.A. (Pp. 50-51, Paras. F-B) - read in context

4. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Attributes of the principle of fair hearing"In S & D Construction Company Ltd. V. Chief Bayo Ayoku & Anor. (2011) LPELR ??? 2985 (SC.) per Adekeye, JSC while relying on thecases of Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Fagbule V. Rodrigues (2002) 14 NWLR (Pt. 765) 188, Adeniran V. NEPA (2002) 14NWLR (Pt. 786) 30; Bamgboye V. UNILORIN (1999) 10 NWLR (Pt. 622) 290 and Awoniyi VS. The Registered Trustees of AMORC (2000) 4SC (Pt. 1) 103; posited that the right to fair hearing is a constitutional right entrenched in Section 36 of the 1999 Constitution which rightis 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 materialissues in the case before reaching a decision which may be prejudicial to any party in the case; (b) that the Court or tribunal gives equaltreatment, opportunity and consideration to all concerned; (c) That the proceedings be heard in public and all concerned be informed ofand have access to such a place of hearing; (d) That having regard to all the circumstances in every material decision in the case, justicemust not only be done but must be seen to have been done."Per AGUBE, J.C.A. (Pp. 51-52, Paras. D-D) - read in context

5. COURT - DISCRETION OF COURT: How judicial discretion of a court is to be exercised"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 shouldexercise 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 anAppellate Court to change or metamorphose into a Court of trial or take the place of a Court of trial and grant the application foramendment as such Court, if it heard the Application in that capacity. On the contrary, Appellate Court should look at the Applicationgranted or refused from the cold record of Appeal and taken Appellate decision borne out from the Records.???Per AGUBE, J.C.A. (P. 55,Paras. B-F) - read in context

6. COURT - DUTY OF COURT: Duty of Court to pronounce on all issues raised before it"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 aCourt of law particularly Trial Courts as well as penultimate Courts are duty bound to resolve all issues placed before them except in thefew 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 Appellantthat a Court of law particularly a Court of first instance is duty bound to pronounce on all issues raised before it by the parties and putforward for determination before the Court."The decisions in Nwokedi V. Egbe (2005) 9 NWLR (Pt. 930) at 307 per Galadima, JCA; Uzuda V. Ebijah (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 byparties, was emphasized long ago in the case of Ojogbue V. Nnubia (1972) 6 S.C. 227; Per Coker, JSC; where the Learned JudicialGuru/legend opined: ???A judgment of a Court must demonstrate in full a dispassionate consideration of issues properly raised andheard 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, forthroughout 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 cannotbe seen nor, what is worse the ground on which the trial Court had proceeded to enter judgment for the Defendants. The case isremitted to the High Court 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 theemphasis is on proper, relevant issues, that go to the substance or foundation of the case and not peripheral, frivolous, academic andirrelevant issues which must be resolved in the determination of the case. Accordingly, where at the conclusion of the case the materialissue(s) the determination of which is/are likely to affect the outcome of the dispute between the parties, is/are left unattended to orunresolved, the issues between the parties would be deemed not to have been determined. This explains why the Apex Court has heldthat where several issues have been raised by parties which would go a long way in determining the dispute between the parties, suchissues 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 aduty to specify the reason(s) why they are so considered irrelevant. The rationale behind this stance of the law is that in all cases whereissues have been joined, the Court is duty bound to state how the issue has been disposed off. See Welle & Anor V. Okechukwu (1985) 6S.C. 132 at 145 ??? 146; Per Karibe ??? Whyte JSC."Per AGUBE, J.C.A. (Pp. 56-59, Paras. B-A) - read in context

(201

6) LP

ELR-40

972(

CA)

7. COURT - JURISDICTION: Conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of anymatter"In the locus classicus of Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 595; which has been followed in a plethora of cases, theSupreme 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 ofjurisdiction. See, Egharevba V. Eribo & Ors. (2010) 9 NWLR (Pt. 1199) 411 S.C.; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; NwankwoV. 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 theCourt???s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously."PerAGUBE, J.C.A. (Pp. 62-63, Paras. D-B) - read in context

8. COURT - JURISDICTION: Effect of trial/proceeding conducted in the absence of jurisdiction of Court"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 notonly 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 anullity."Per AGUBE, J.C.A. (P. 63, Paras. D-F) - read in context

(201

6) LP

ELR-40

972(

CA)

9. PRACTICE AND PROCEDURE - AMENDMENT OF COURT PROCESSES/PLEADINGS: General principles guiding amendment ofpleadings/court processes"Beginning from Order 24 of the High Court of Imo State (Civil Procedure) Rules 2008, Rule 1 thereof donates to a litigant the right toamend 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 pre-trial conference and not more than twice duringtrial 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 andmay 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 withhis Written Statement on oath and a copy of any document to be relied upon consequent on such amendment, shall be filed with theApplication.4. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------5. Whenever any Originating process, pleading or other process is amended, a copy of the document as amended shall be filed in theRegistry 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 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 oromission upon application without an Appeal being filed; and above all, by Rule8. 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 realquestion 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 theclose of pre-trial conference and not more than twice during the trial but before the close of the case,??? provisions relating toamendment 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 havebeen 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. Akaniwo & Ors. V. Chief O. N. Nsirin & Ors. (2008) ALL FWLR (Pt. 410) 610 and the epical andilluminating dissenting opinion of the erudite and emeritus Niki Tobi JSC at pages 645 paras. E-G; 646 paras. A ??? C; 647 paras. A ??? Cand 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 elements in his enunciation of the principles guiding amendmentswhen Order XXXIV of the High Court of Rivers State (Civil Procedure) Rules fell for interpretation thus at page 655 paragraphs D ??? H to656 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 deservingcases. Trial Courts must examine the application for amendment very carefully in the light of the peculiar facts of affidavit evidence. Inthe 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 forthe mistakes which they make in the conduct of their cases????????????????????????. I know of no kind of error or mistake which, if notfraudulent??????.the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake ofdiscipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour orgrace????????? 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 ofthe 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 pending before him wherever it ispossible to cure an unintentional blunder in the circumstances of a case and in order to expedite the hearing of an action, the Court is toaward costs against any delinquent party rather than dismiss or strike out a case for a fault in the proceedings prior to the hearing of thecase.In the course of his contribution, the Judicial Sage also reflected on the principles enunciated in the English case of Collins V. Vestry ofPaddington (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 factorswhich 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 herebyreiterate), in the case of University of Ilorin V. Adesina (2008) ALL FWLR (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 injusticeis done to any in recent litigant on account of the blunders or inadvertence of his counsel particularly nowadays that blunders occur withsuch 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 latethe proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justicecannot at the same time, and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether theproposed amendment should be allowed is therefore whether the party applying to amend can do so without placing the opposite partyin such a position which cannot be addressed by that panacea which heals every sore in litigation, namely: Costs."Per AGUBE, J.C.A. (Pp.27-34, Paras. E-F) - read in context

(201

6) LP

ELR-40

972(

CA)

10. PRACTICE AND PROCEDURE - AMENDMENT OF COURT PROCESSES/PLEADINGS: Duty of court in amending court pleadings"In Akaninwo V. Nsirim (supra) SC at 656 ??? 657, Tobi, JSC had advised that in dealing with applications of this nature, the Court shouldconsider the time the application is brought whether it was brought at the earliest opportunity taking also into account whether theApplicant is a man of due diligence and business and ought to have procured the spurious certificates at the earliest opportunity. Goingby 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 inhibitedfrom presenting his case there is also the other side of the coin which is that a party owes the administration of justice and the judicialprocess a duty to present his case in whole or en-bloc and not by installments. Accordingly, when a Court is considering amendment ofpleadings (as in this case) the judge must also be satisfied with the bona fides of the case or amendment sought."Per AGUBE, J.C.A. (Pp.49-50, Paras. C-A) - read in context

11. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: When the issue of jurisdiction can be raised"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 stageof the proceedings on Appeal. See Amadi V. NNPC (2006) SCNJ page 11."Per AGUBE, J.C.A. (P. 63, Para. C) - read in context

(201

6) LP

ELR-40

972(

CA)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the

Leading Judgment): 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

1

(201

6) LP

ELR-40

972(

CA)

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

2

(201

6) LP

ELR-40

972(

CA)

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

3

(201

6) LP

ELR-40

972(

CA)

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

4

(201

6) LP

ELR-40

972(

CA)

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

5

(201

6) LP

ELR-40

972(

CA)

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

6

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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,

(201

6) LP

ELR-40

972(

CA)

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

9

(201

6) LP

ELR-40

972(

CA)

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

10

(201

6) LP

ELR-40

972(

CA)

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

11

(201

6) LP

ELR-40

972(

CA)

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

12

(201

6) LP

ELR-40

972(

CA)

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

13

(201

6) LP

ELR-40

972(

CA)

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

14

(201

6) LP

ELR-40

972(

CA)

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”

15

(201

6) LP

ELR-40

972(

CA)

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

p a r a s . A H – A ; a n d s u b m i t t e d t h a t t h e

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

16

(201

6) LP

ELR-40

972(

CA)

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

17

(201

6) LP

ELR-40

972(

CA)

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

18

(201

6) LP

ELR-40

972(

CA)

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

19

(201

6) LP

ELR-40

972(

CA)

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

20

(201

6) LP

ELR-40

972(

CA)

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

21

(201

6) LP

ELR-40

972(

CA)

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

22

(201

6) LP

ELR-40

972(

CA)

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.

23

(201

6) LP

ELR-40

972(

CA)

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

24

(201

6) LP

ELR-40

972(

CA)

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

25

(201

6) LP

ELR-40

972(

CA)

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

26

(201

6) LP

ELR-40

972(

CA)

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

27

(201

6) LP

ELR-40

972(

CA)

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

28

(201

6) LP

ELR-40

972(

CA)

following manner:

“Amended………………….day of ………………pursuant to

O r d e r o f ( n a m e o f J u d g e ) d a t e d t h e

………………..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

29

(201

6) LP

ELR-40

972(

CA)

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

30

(201

6) LP

ELR-40

972(

CA)

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

31

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

(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

34

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

39

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

(201

6) LP

ELR-40

972(

CA)

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

accord ing ly paragraphs 2 , 3 , 4 and 5 o f 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

43

(201

6) LP

ELR-40

972(

CA)

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

44

(201

6) LP

ELR-40

972(

CA)

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

45

(201

6) LP

ELR-40

972(

CA)

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

46

(201

6) LP

ELR-40

972(

CA)

“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

(201

6) LP

ELR-40

972(

CA)

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

48

(201

6) LP

ELR-40

972(

CA)

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

49

(201

6) LP

ELR-40

972(

CA)

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

50

(201

6) LP

ELR-40

972(

CA)

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

51

(201

6) LP

ELR-40

972(

CA)

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.

52

(201

6) LP

ELR-40

972(

CA)

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 t r i a l Cour t f o r f a i l u re t o p rosecu te h i s

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

53

(201

6) LP

ELR-40

972(

CA)

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

54

(201

6) LP

ELR-40

972(

CA)

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

55

(201

6) LP

ELR-40

972(

CA)

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

56

(201

6) LP

ELR-40

972(

CA)

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

57

(201

6) LP

ELR-40

972(

CA)

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

58

(201

6) LP

ELR-40

972(

CA)

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

59

(201

6) LP

ELR-40

972(

CA)

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

60

(201

6) LP

ELR-40

972(

CA)

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

61

(201

6) LP

ELR-40

972(

CA)

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

62

(201

6) LP

ELR-40

972(

CA)

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

63

(201

6) LP

ELR-40

972(

CA)

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

64

(201

6) LP

ELR-40

972(

CA)

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 context 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

65

(201

6) LP

ELR-40

972(

CA)

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

66

(201

6) LP

ELR-40

972(

CA)

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.

ITA GEORGE MBABA, J.C.A.: I agree

FREDERICK OZIAKPONO OHO, J.C.A.: I have read thejudgment of my learned brother, IGNATIUS IGWE AGUBE,JCA and I am in agreement with the reasoning andconclusions in resolving this Appeal in favour of theAppellant. I also abide by the consequential orders made bythe Court.

67

(201

6) LP

ELR-40

972(

CA)

Appearances:

F. A. Onuzuruike, Esq. For Appellant(s)

A. C. Ibekaeme, Esq. for 1st - 4th RespondentsFor Respondent(s)

(201

6) LP

ELR-40

972(

CA)