AKOKO EDO TRADITIONAL COUNCIL v. ODAMAH & ORS (2020)

AKOKO EDO TRADITIONAL COUNCIL v. ODAMAH & ORS

(2020)LCN/14096(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, March 11, 2020

CA/B/287/2015

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

AKOKO EDO TRADITIONAL COUNCIL APPELANT(S)

And

JAFARU ODAMAH 2. BUHARI ODAMA 3. LUKEMAN ODAMAH 4. AGBONOGAH ODAMAH (An Infant) 5. NICHOLAS ODAMAH 6. CHARLES OSAIGBEMEH AIGBOKHAI 7. ZACHEAUS ALI (The Okpashi Of Ugono Ruling House) 8. THE GOVERNOR OF EDO STATE OF NIGERIA 9. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO APPEAL AGAINST AN INTERLOCUTORY DECISION ON GROUNDS OF MIXED LAW AND FACT

It is the law, both under Section 241(1)(b) and 242(1) of the 1999 Constitution and decided cases that to appeal against an interlocutory decision on grounds of mixed law and fact leave of Court is required.
Consequently, failure to seek and obtain such leave is detrimental to the Appellant’s case to the extent of the defaulting grounds of appeal. In other words, where the grounds of appeal are only facts or mixed law and facts, the grounds and consequently the appeal must be struck out as incompetent, unless leave of Court is sought and obtained.
Furthermore, where leave is required before an appeal could be filed against an interlocutory decision failure to obtain leave would not only render the appeal incompetent but also rob the Court of the jurisdiction to entertain the matter. See OGBECHIE VS. ONOCHIE (1986) 3 SC 54; OTU VS. ACB INTERNATIONAL BANK PLC (2008) 3 NWLR (PT. 1073) 179; FALEYE VS. OTAPO (1987) 4 NWLR (PT. 64) 186. In the case ofCHIEF OF AIR STAFF VS. IYEN (2005) 6 NWLR (PT. 922) 496, the Supreme Court at pages 541 to 542 held as follows:
“A ground of appeal is a ground of law if the ground deals exclusively with the interpretation or construction of the law without resort to facts. In this respect the Court is involved in the interpretation or construction of either the constitution or a statute with no reference to any factual situation. A ground of appeal which alleges a misapplication of law to the facts of the case is a ground of law. On the other hand, a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. It is a mixed grill of law and facts, so to say. A ground of appeal is one of fact where the ground deals exclusively with the facts only. In the determination of the grounds of appeal, the Court in most cases refer to the particulars, if there are particulars. This will enable the Court to have a full view of the ground of appeal and come to the conclusion whether it is a ground of law or mixed law and fact or facts simpliciter. This is because the tag name of ground of law by the Appellant does not necessarily make it so.” PER OSEJI, J.C.A.

AN OMNIBUS GROUND OF APPEAL

An omnibus ground of appeal implies that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party and which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached on the accepted evidence cannot be justified. See ATUYEYE VS. ASHAMU (1987) NWLR (PT. 49) 267; OSASONA VS. AJAYI (2004) 18 NSCQR 40; AGBAMU VS. OFILI (2004) 5 NWLR (PT. 867) 540. In AKINLAGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) 60 at 82 the Supreme Court per Kalgo JSC held that:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact of any document. It cannot be used to raise any issue of law or error in law.”
See also DUNALIN INVESTMENT LTD VS. BGL PLC & ANOR. (2016) 18 NWLR (PT. 1544) 262. PER OSEJI, J.C.A.

WHETHER OR NOT PLEADINGS CAN BE AMENDED IN THE COURSE OF TRIAL OF A SUIT

It is settled that pleadings of parties can be amended in the course of trial of a suit. The basic principle is that leave to amend is to be granted for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties. See BANK OF BARODA VS IYALABANI CO. LTD (2002) 13 NWLR (PT. 785) 551.
It has also been held that the aim of an amendment is usually to prevent manifest justice of a cause from being defeated by formal slips which may arise from inadvertence of counsel vide ADESANOYE VS. ADEWOLE (2004) 11 NWLR (PT. 884) 414; AKANINWO VS. NSIRIM (2008) 1 SC (PT. III) 151.
Either of the parties to a suit have the right to make an application for amendment anytime during trial to enable him present his case in the way it appears best to him, provided it does not occasion injustice to the adverse party.
In ALIYU & ANOR VS. GWADABE & ORS. (2014) LPELR – 23463 (CA), this Court per Aboki JCA address the concept of amendment as follows:
“Amendment means to improve, to change for the better by removing defects or faults and in relation to Court proceedings, it is the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as of course, or by consent of the parties or upon notice of the Court in which the proceedings is pending. It includes “rewriting” the whole document and substituting the new one with the old. See UBN VS. LAWAL (2012) 6 NWLR (PT. 1295) 186 at 194. It is settled that amendments enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice ensuring always that no injustice is occasioned to the other party. See KODE VS. YUSSUF (2001) 4 NWLR (PT. 703) 392”. PER OSEJI, J.C.A.

WHETHER OR NOT THE GRANT OR REFUSAL OF AN APPLICATION TO AMEND ANY PROCESS IS DEPENDEDN ON THE DISCRETIONARY POWERS OF THE COURT

From the wording of the above set out Rules, particularly Rule (2), it is glaring that the grant or refusal of an application to amend any process or pleadings is mainly dependent on the discretionary powers of the Court and which discretion is to be exercised judicially and judiciously having regard to certain laid out guidelines. The case of OGUNTUNDE VS. OWOLABI (2006) 4 FWLR (PT. 334) 5822 also cited by learned counsel for the 1st to 3rd Respondents provides an insight into the guiding principles at pages 5834 to 5835 per Augie JCA (now JSC) as follows:
“Now the power of the Court to allow or refuse an amendment is judicially discretionary. An amendment will not be allowed for the asking nor will it be arbitrarily prevented. In each case the question is whether or not the amendment will aid the course of justice as between the parties and is necessary for the purpose of determining the real issue in dispute between them. The Court must therefore consider the following factors:
(a) The attitude of the parties;
(b) The nature of the amendment sought in relation to the main suit;
(c) The question in controversy;
(d) The time factor;
(e) The state at which the proceedings had reached; and
(f) All the circumstances surrounding the case. See also ALSTHOM S.A. VS. SARAKI (2000) 10 – 11 SC 48. PER OSEJI, J.C.A.

WHAT IS AN AMENDMENT?

An amendment simply put in the correction of an error committed in any process, pleading or proceedings at law or in equity and thus an amendment can be made either as a matter of course or by consent of the parties upon notice to the Court in which the proceedings is pending. As earlier observed, because the Courts are more concerned with deciding the rights of the parties than in their errors or mistakes, which can be corrected at any stage, an amendment which will not cause injustice to the other party and can at worst be ameliorated by cost will be granted at any stage if it is in the interest of justice. The aim of an amendment, as is commonly agreed is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which may arise in the prosecution of the case. See Alhaji Abdullahi Adamu V. Mallam Mumkaila Isa (2014) LPELLR -24169 (CA), per Georgewill JCA. See also Okafor V. Ikeanyi (1979) 3 – 4 SC 99; Chief Eyo Eta V. Chief Okon Dazie (2013) LPELR 2013 6 (SC); Adekeye V. Akin – Olugbade (1987) 3 NWLR (Pt. 60) 214; Ogboru V. Ibori (2004) 7 NWLR (Pt.871) 192; Hon. Justice Garba Abdullahi V. Governor of Kano State & Ors (2011) LPELR 8925. PER OSEJI, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Edo State sitting in Igarra, Edo State and delivered on the 28th day of September, 2015, wherein the application by the respondents to amend their amended statement of claim was granted.

The 1st, 2nd and 3rd Respondents who are the 1st, 2nd, and 3rd Claimants at the trial Court on the 9th day of October, 2012 took out a Writ of Summons at the High Court of Justice, Igarra, Edo State claiming various or diverse Declaratory and injunctive reliefs against the Defendants jointly and severally as follows:
“a. A DECLARATION that under the Ekpeshi-Egbigele native law and custom, the mother of the claimants being a native of Enwan, the Claimants are Enabor children and are therefore entitled to succeed to the throne of the Ekpeshi-Egbigele the throne having become vacant.
b. A DECLARATION that the performance of Oko marriage on Florence Odamah, the mother of the Claimants does not thereby remove them as Enabor children under Ekpeshi- Egbigele clan.
c. A DECLARATION that under the

declaration of the customary law regulating succession to the Traditional ruler title of Ekpeshi-Egbigele clan registered as Bendel State Legal Notice No. 159 of 1979 the Claimants being Enabor children are entitled to succeed to the throne and/or clan headship of Ekpeshi-Egbigele clan.
d. A DECLARATION that there is a lacuna in the Bendel State Legal Notice No 159 of 1979 stating the customary law regulating succession to the title of Ekpeshi-Egbigele clan where the 1st Son to the late Zeiki decline to ascend the throne, who become the next person to succeed to the throne (Sic).
e. A DECLARATION that it is the evidence of customary law of Ekpeshi-Egbigele that will regulate succession to the throne of the Ekpeshi-Egbigele clan where the eldest surviving son who is entitled to be the Zeiki of Ekpeshi-Egbigele clan decline and/or refused to be selected and appointed to the throne of Zeiki of Ekpeshi-Egbigele clan.
f. A DECLARATION that the 3rd Claimant is the one entitled to be selected and have his name forwarded by those entitled to approve him the Zeiki of Ekpeshi Egbigele clan under Ekpeshi customary law of succession, the 1st and 2nd claimants

having declined and/or refused to be selected and appointed to the throne of the clan headship of Ekpeshi-Egbigele clan.
g. A DECLARATION that purported exclusion of the 3rd claimant from participating in the selection leading to the forwarding of the name of the Zeiki of Ekpeshi-Egbigele clan on the ground that he is not an Enabor child or for any other reason is null and void of no effect whatsoever.
h. A DECLARATION that the selection and traditional installation of the 3rd claimant as the Zeiki of Ekpeshi-Egbigele is consistent with Ekpeshi-Egbigele customary law of succession.
i. A DECLARATION that the 5th Defendant cannot validity (Sic) conduct an enquiry into who ascend to the throne of the Zeiki of Ekpeshi-Egbigele when there is a written declaration.
j. AN ORDER compelling the 5th Defendant to forward the name of the 3rd Claimant to the 6th and 7th Defendants for approval and presentation of a staff of office.
k. AN ORDER OR PERPETUAL INJUNCTION restraining the 1st Defendants (Sic) from allowing himself to be selected or putting up himself for selection as the Zeiki of Ekpeshi-Egbigele clan by any person or group of persons

or allowing any person to act for him or in his behalf as the Zeiki of Ekpeshi-Egbigele clan.
l. AN ORDER OF PERPETUAL INJUNCTION restraining the 5th to 7th Defendants from selecting, recognizing and/or approving any person other than any of the Claimant as the lawful persons entitled to be selected the of Ekpeshi-Egbigele clan.”

The Defendants in reaction to the Claimants’ declaratory and injunctive reliefs filed their respective Statements of Defence and issues were joined by the parties.

The Claimants in the course of the trial after calling some witnesses brought an application dated the 13th day of July, 2015 to further amend their Amended Statement of Claim.

In the said Claimants’ Motion on Notice, the Claimants prayed for the following reliefs:
1. AN ORDER granting leave to the Claimants/Applicants to amend their Amended Statement of Claim in the manner formulated and underlined in black in the proposed further Amended Statement of Claim which is attached to the Affidavit in Support of Motion as Exhibit “BAA1”.
2. AN ORDER of this Honourable Court deeming the clean copies of the Further Amended Statement of Claim

already filed in the Registry of this Honourable Court as properly filed and served, the appropriate filing fees having been paid.
AND FOR SUCH ORDER OR FURTHER ORDERS Honourable Court may deem fit to make in the circumstance of this case.

The said motion was supported by a 10 paragraph affidavit with documents marked as Exhibits “BAA1″ attached therewith.
The Appellant opposed the application by filing a 14 paragraph counter affidavit and a written address in support.

Upon conclusion of hearing of the Respondent’s motion on notice on 13/9/2015, the trial Court delivered a Ruling thereof on the 28/9/2015 wherein the Respondent’s application was granted.

This prompted the Appellant to file a notice of appeal with five grounds of appeal on the 12/10/2015.
The Appellant’s brief of argument was filed on 21/10/15, while the 1st to 3rd Respondents’ brief of argument was filed on 13/11/2015. The 4th to 9th Respondents did not file any brief of argument. The Appellant’s Reply to the 1st and 3rd Respondents’ brief was filed on 2/2/2016.

At the hearing of the appeal on 17/2/2020, the parties

adopted their briefs of argument.

However given that the 1st to 3rd Respondents raised a preliminary objection to the competence of the notice of appeal, it will be addressed prior to the consideration of the substantive appeal. See APAPA VS. INEC (2012) 8 NWLR (PT. 1303) 409; JAIYEOLA VS. ABIOYE (2003) 4 NWLR (PT. 810) 397; OSUN STATE GOVERNMENT VS. DALAMI (NIG) LTD (2003) 7 NWLR (PT. 818) 72.

Now at page 3 of the 1st to 3rd Respondents’ brief of argument a preliminary objection was raised challenging the hearing of this appeal based on the notice of appeal filed on 10/10/2015.

The grounds for the objection is that “the appeal being mixed law and fact, the notice of appeal challenging the Ruling of the trial Court dated 28th day of September, 2015 can only be filed after the leave of the trial Court or leave of this Court has been obtained in strict compliance with the provisions of Section 242(2) of the Constitution of the Federal Republic of Nigeria, 1999.

Arguing the said preliminary objection, it is submitted that the grounds of appeal are complaints against the exercise of Court discretion based on affidavit evidence.

Referring to ground 5, it was contended that being an omnibus ground of appeal it is based on facts and not matters of law. The following authorities were cited in support.NWANKWO VS. FRN (2003) 4 NWLR (PT. 807) page 1 at 28; EJILEMELE VS. OPARA (1998) 9 NWLR (PT. 1567) 587; OPUIYO VS. OMONIWARI (2007) 16 NWLR (PT. 1000) 415 at 431.

It was further submitted that grounds 1, 2, 3 and 4 of the grounds of appeal though labelled as grounds of law but when read with the particulars will show that they are mixed law and facts as they challenged the exercise of the discretionary powers of the learned trial Judge to grant the application for amendment and which ruling is based on the affidavit evidence which in law is akin to viva voce evidence in Court, vide NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 12 NWLR (PT. 135) 668; and CHIEF OF DEFENCE STAFF VS. ADHEKEGBA (2009) 13 NWLR (PT. 1158) 332 at 361.

It was then urged on this Court to uphold the preliminary objection and strike out the notice of appeal.

The Appellants’ reply to the preliminary objection is at pages 1 to 7 of the Appellants’ reply to the 1st to 3rd

Respondents’ brief of argument filed on 2/2/2016.

Therein learned senior counsel for the Appellants’ submitted that the notice of appeal was filed in due compliance with the provisions of Section 241 (1) of the 1999 Constitution (as amended) and particularly Sections 241(1) (b) & (c).

He added that the grounds of appeal and their particulars show that they are purely grounds of law. Referring to ground 1 of the notice of appeal, it was submitted that it challenges the jurisdiction of the trial Court to grant the application to further amend the amended statement of claim because the claimants lack the locus standi to challenge the Traditional Rulers and Chiefs Edict of 1999 and that a ground challenging the locus standi of a party is a ground of law being a challenge to the Court’s jurisdiction, vide AJAGUNGBADE III VS. ADEYELU II (2001) 16 NWLR (PT. 38) 126 at 186.

Further referring to grounds 2, 3, 4 and 5 of the Appellants’ notice of appeal, it was submitted that they are grounds of law because they raised the issue of limitation of action having regard to Section 4(1) of the Limitation Law of Edo State and

Section 2(a) of the Public Officers Protection Law of Bendel State as applicable in Edo State, therefore the grounds of appeal fall within the ambit of Section 241(1)(c) of the 1999 Constitution.
It was then urged on this Court to dismiss the preliminary objection.

Now, a decision on whether a ground of appeal raises a question of law alone or mixed law and facts involves the examination of the ground of appeal as framed together with the particulars of error. See OBATOYINBO VS. OSHATOBA (1996) LPELR – 2156 (SC).

an interlocutory decision failure to obtain leave would not only render the appeal incompetent but also rob the Court of the jurisdiction to entertain the matter. See OGBECHIE VS. ONOCHIE (1986) 3 SC 54; OTU VS. ACB INTERNATIONAL BANK PLC (2008) 3 NWLR (PT. 1073) 179; FALEYE VS. OTAPO (1987) 4 NWLR (PT. 64) 186. In the case ofCHIEF OF AIR STAFF VS. IYEN (2005) 6 NWLR (PT. 922) 496, the Supreme Court at pages 541 to 542 held as follows:
“A ground of appeal is a ground of law if the ground deals exclusively with the interpretation or construction of the law without resort to facts. In this respect the Court is involved in the interpretation or construction of either the constitution or a statute with no reference to any factual situation. A ground of appeal which alleges a misapplication of law to the facts of the case is a ground of law. On the other hand, a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. It is a mixed grill of law and facts, so to say. A ground of appeal is one of fact where the ground deals exclusively with the facts only. In the determination of the grounds of appeal, the Court in most

cases refer to the particulars, if there are particulars. This will enable the Court to have a full view of the ground of appeal and come to the conclusion whether it is a ground of law or mixed law and fact or facts simpliciter. This is because the tag name of ground of law by the Appellant does not necessarily make it so.”
In the instant case, I have read through the five grounds of appeal and their particulars of error. Ground 5 is an omnibus ground and it reads thus:
“The Ruling of the lower Court is against the weight of affidavit evidence.”
Such an omnibus ground of appeal does nothing else but to challenge the decision of the trial Court vis-a-vis the weight of evidence presented before the Court and as such is regarded as a ground of fact. An omnibus ground of appeal implies that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party and which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached on the accepted evidence cannot be justified. See ATUYEYE VS. ASHAMU (1987) NWLR (PT. 49) 267; OSASONA VS. AJAYI (2004) 18 NSCQR 40;

AGBAMU VS. OFILI (2004) 5 NWLR (PT. 867) 540. In AKINLAGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) 60 at 82 the Supreme Court per Kalgo JSC held that:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact of any document. It cannot be used to raise any issue of law or error in law.”
See also DUNALIN INVESTMENT LTD VS. BGL PLC & ANOR. (2016) 18 NWLR (PT. 1544) 262.
In this regard, ground five of the notice of appeal being a ground of fact and not law and leave having not been sought and obtained for same is deemed incompetent.
On grounds 1, 2, 3 & 4, a careful perusal of the said ground with their particulars show that they are hinged on the jurisdiction of the trial Court to grant the application given that the amendments sought are statute barred and the 1st to 3rd Respondents have no locus standi to challenge the Traditional Rulers and Chiefs Edit 1979 of Bendel State as applicable to Edo State.
These to my mind brings grounds 1, 2, 3, 4 within the scope of grounds of law in which case the leave of the

trial Court or this Court is not required.
On this premise, I hold that ground 5 of the grounds of appeal is incompetent and it is hereby struck out. Grounds 1, 2, 3 and 4 being grounds of law are competent and can sustain the appeal.
The notice of preliminary objection therefore succeeds in part. I shall proceed with the main appeal.

Now on the main appeal, the Appellants formulated two issues for determination in their brief of argument filed on 21/10/2015 as follows:
“1. whether the trial Court is clothed with jurisdiction to grant the application of the Claimants dated the 13th day of July, 2015 to amend the Claimants’ Further Amended Statement of Claim challenging the propriety or otherwise of the Chieftaincy Declaration of No. 159 of 1979.”
2. Whether the provisions of Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is applicable to set aside the Chieftaincy Declaration No. 159 of 1979 as a result of the amendment granted by the lower Court.”

The Respondent’s brief of argument was filed on 13/11/2015, the sole issue formulated therein for determination is:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Whether the jurisdiction and powers of the trial Court to grant an amendment to the Claimants pleadings was divested by the inherent nature of the amendment.”

I shall adopt the two issues as formulated by the Appellants in the consideration of this appeal.

ISSUE ONE
Herein, learned counsel for the appellant submitted that the trial Court has no jurisdiction to grant the amendment sought by the 1st, 2nd and 3rd Respondents herein in respect of the Chieftaincy Declaration relating to the Zaiki of Ikpeshi/Egbigele Clan. He added that the Chieftaincy Declaration No. 159 of 1979 was enacted by the then Military Government of Bendel State pursuant to the Traditional Rulers and Chief Edict, 1979 of Bendel State as applicable to Edo State and such the Chieftaincy Declaration came into force on the 28th day of September, 1979 before the commencement of the 1979 Constitution.

It was further submitted that the learned trial Judge ought not to grant the application to amend the Chieftaincy Declaration No. 159 of 1979 as same is an existing law under Section 315(1) of the 1999 Constitution.
He argued that this Court is not vested

with jurisdiction to amend or alter any existing law and the provisions of the laws stated above are not inconsistent with the provisions of the 1999 Constitution (as amended) to warrant the lower Court to interfere with the said Chieftaincy Declaration No. 159 of 1979. On this he cited SIR OLATERU OLAGBEGI v. A.G. OF ONDO STATE & 1 OR (1984) 5 NCLR pg. 147 at 159. CHIEF AUDU ADAMU & 3 ORS v. A.G. OF BENDEL STATE & 3 ORS (1982) 3 NCLR pg. 676.

Flowing from the above submission, learned counsel submitted that the Traditional Rulers and Chiefs Edict, 1979 and the Chieftaincy Declaration relating to the Zeiki of Ekpeshi/Egbigele Clan, which were enacted and/or came into effect on 28th of September, 1979, same cannot be altered by the lower Court on the guise, that same is inconsistent with Section 42(2) of the 1999 Constitution.
He posited that the Traditional Rulers and Chiefs Edict, 1979 being an existing law, cannot be challenged by the Claimants to the effect that the Registered Declaration No. 159 of 1979 which was made pursuant to the said Edict is inconsistent with the provisions of Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On issue 2, learned counsel submitted that the provisions of Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) cannot be applied to set aside the Chieftaincy Declaration No. 159 of 1979 which was enacted pursuant to the Traditional Rulers and Chiefs Edict, 1979 of Bendel State as applicable to Edo State.

He further contended that the lower Court was palpably wrong to have granted the said amendment to the effect that the Chieftaincy Declaration which regulate the succession to the traditional ruler title of Zeiki of Ekpeshi/Egbigele Clan is inconsistent with Section 42(2) of the 1999 Constitution (as amended). In support he cited the case of OLANIYI v. AROYEHUN & 7 ORS (1991) 5 NWLR (Pt. 194) page 652 particularly at page 680.

While referring to Section 42(2) of the 1999 Constitution, learned counsel submitted that the said section cannot be applied or used to change the Customary Law regulating the succession to the traditional ruler title of Zeiki of Ekpeshi-Egbigele Clan based on the amendment of the Claimants at the lower Court. He relied on the case of

THE GOVERNOR OF KOGI STATE & 3 ORS v. COL. HASSAN YAKUBU (RTD), THE EJEH OF ANKPA & 1 OR (2001) 6 NWLR (Pt. 710) page 521 particularly at page 528.

In response, learned counsel to the 1st 2nd and 3rd respondent submitted that Order 24 Rules 1, 2, 3 and 5 of the Edo State High Court (Civil Procedure) Rules, 2012 the Edo State High Court is not only vested with the vires but with the jurisdiction to grant any amendment before and during trial. He added that the caveat is that during trial no amendment can be made more than twice, before the close of the case except in exceptional circumstance. On this he cited OGUNTUNDE V. OWOLABI (2006) 4 FWLR (PT 334) 5822 at pages 5834-5855

It was further submitted that the amendment granted was to bring out the real issue between the parties and the trial Court in its ruling mentioned the point brought out by the amendment to be that the Claimants are by this amendment challenging their exclusion whether or not it contravenes Section 42 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

He argued that the amendment of pleadings by parties in a case is a matter of procedure

provided for by the rules of the Court in which such cases are initiated. He placed reliance onEKE V. AKPU (2010) All F.W.L.R (PT 510) page 640 at 657.

With particular reference to Section 272 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) he submitted that the jurisdiction conferred on the High Court of a State is an unlimited jurisdiction which is only subject to Section 251 of the Constitution to hear and determine any civil proceedings in which the existence of a legal right, power, duty, liability, interest, obligation, or claim is in issue.

It was submitted that the appeal is an appeal against the trial Court exercise of discretion and the appellant has not by his appeal shown that the trial Court has exercised its discretion to grant the amendment to the pleadings of the 1st to 3rd respondent on wrong principles or mistake of law or under a misapprehension of the fact or took into account irrelevant matters or excluded relevant matters thereby giving rise to injustice. He relied on the case of WILLIAMS VS WILLIAMS 1982 2 NWLR (PART 54) 66, SARAKI VS KOTOYE (1990) 4 NWLR (PART 143) 144.

Learned counsel to the appellant in his reply to 1st-3rd Respondent brief submitted that the Respondents clearly misunderstood the purport of Order 24 of High Court of Edo State (Civil Procedure) Rules and the authorities relied upon. He added that the grant of an amendment of pleadings stems from the Courts procedural jurisdiction but the relevant consideration in determining whether to allow such amendment is dictated by law.

While relying on Section 42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), it was argued that the stated section of the Constitution cannot be used as a medium to amend the Chieftancy Declaration No. 159 of 1979 particularly as same is preserved and protected by Section 315 of the Constitution.

It was then argued that the mere fact that the High Court has jurisdiction to entertain Chieftaincy matters does not elevate such matters to the realm of fundamental human right rather it is a matter of privilege to be appointed or selected to rule mankind.
It was therefore urged on this Court to discountenance the submissions of the respondent.

As earlier stated, I shall adopt the two issues formulated in the

Appellants brief of argument in the consideration of this appeal.

ISSUE ONE:
It is settled that pleadings of parties can be amended in the course of trial of a suit. The basic principle is that leave to amend is to be granted for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties. See BANK OF BARODA VS IYALABANI CO. LTD (2002) 13 NWLR (PT. 785) 551.
It has also been held that the aim of an amendment is usually to prevent manifest justice of a cause from being defeated by formal slips which may arise from inadvertence of counsel vide ADESANOYE VS. ADEWOLE (2004) 11 NWLR (PT. 884) 414; AKANINWO VS. NSIRIM (2008) 1 SC (PT. III) 151.
Either of the parties to a suit have the right to make an application for amendment anytime during trial to enable him present his case in the way it appears best to him, provided it does not occasion injustice to the adverse party.
In ALIYU & ANOR VS. GWADABE & ORS. (2014) LPELR – 23463 (CA), this Court per Aboki JCA address the concept of amendment as follows:
“Amendment means to improve, to change for the better by

removing defects or faults and in relation to Court proceedings, it is the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as of course, or by consent of the parties or upon notice of the Court in which the proceedings is pending. It includes “rewriting” the whole document and substituting the new one with the old. See UBN VS. LAWAL (2012) 6 NWLR (PT. 1295) 186 at 194. It is settled that amendments enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice ensuring always that no injustice is occasioned to the other party. See KODE VS. YUSSUF (2001) 4 NWLR (PT. 703) 392”.
It is normal to find provisions for amendment of processes in the various Rules of Court. As per the amendment of pleadings by parties to a suit. Order 24 Rules 1, 2, 3, 4 and 5 of the Edo State High Court (Civil Procedure) Rules 2012 provides as follows:
“Rule 1: a party may amend his originating process and pleadings at any time before settlement of issues and no more than twice during the trial but before the close of the case, provided the

Court may grant more than two amendments in exceptional circumstances.
Rule 2: Application to amend may be made to a Judge, such application shall be supported by an exhibit of the proposal amendment and may be allowed upon such terms as to costs or otherwise as may just.
Rule 3: Where any originating process and/or pleadings 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 such document to be relied upon consequent on such amendment shall be filed with the application.
Rule 4: If a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the order or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay an additional fee of N100 (one hundred naira) only for each day of default without the need for another application for extension of time provided he files within fourteen days thereafter.
Rule 5: Whenever any originating process or pleadings 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.”
From the wording of the above set out Rules, particularly Rule (2), it is glaring that the grant or refusal of an application to amend any process or pleadings is mainly dependent on the discretionary powers of the Court and which discretion is to be exercised judicially and judiciously having regard to certain laid out guidelines. The case of OGUNTUNDE VS. OWOLABI (2006) 4 FWLR (PT. 334) 5822 also cited by learned counsel for the 1st to 3rd Respondents provides an insight into the guiding principles at pages 5834 to 5835 per Augie JCA (now JSC) as follows:
“Now the power of the Court to allow or refuse an amendment is judicially discretionary. An amendment will not be allowed for the asking nor will it be arbitrarily prevented. In each case the question is whether or not the amendment will aid the course of justice as between the parties and is necessary for the purpose of determining the real issue in dispute between them. The Court must therefore consider the following factors:
(a) The attitude of the parties;
(b) The nature of the amendment sought in relation to the main suit;
(c) The question in

controversy;
(d) The time factor;
(e) The state at which the proceedings had reached; and
(f) All the circumstances surrounding the case.
See also ALSTHOM S.A. VS. SARAKI (2000) 10 – 11 SC 48.
I have read through the record of appeal with particular emphasis on the proceedings at the lower Court, the application for further amendment of the statement of claim and the ruling of the lower Court on same. I however fail to locate any point where the 1st to 3rd Respondent fell foul of the aforestated guidelines. Their application, to my mind was harmless and bears no connotation of working injustice on the Appellants. Rather it sought to further ventilate the grievances presented for adjudication. In other words, the further amendment of the statement of claim seem to serve the purpose of determining the real questions in controversy between the parties and not to overreach or spring any surprises on them moreso that the case is at hearing stage with every opportunity for the Appellants to further amend their statement of defence in response, if they so wish. The Ruling of the lower Court exhaustively addressed the issues and indeed

followed all the guidelines as enunciated in the authorities earlier cited. Indeed I am inclined to reproduce the portion of the said ruling for purposes of clarity. It reads at pages 8 to 9 of the said Ruling as follows:
“In paragraph 40, the claimants had pleaded that the 3rd Claimant and all other Claimants were excluded in the selection process being carried out, on the ground that they are not Enabor’s children. The Claimants are by this amendment challenging their exclusion whether or not it contravenes the provisions of Section 42(2) of the Constitution. I think, this is all geared towards determining all the questions in controversy between the parties. In the case of GEORGE VS. GEORGE (1964) 1 All NLR page 136. The Supreme Court had held that “an amendment of pleadings should be allowed by the trial Court if such amendment would enable an important point of law to be properly pursued and exhausted.” It is my firm view that this amendment will allow the Honourable Court, to properly determine all questions in controversy between the parties. The rule is that a Court would not refuse to allow an amendment simply because it

introduces a new cause but, would only refuse an amendment where such amendment would result in a change of the action into one of a substantially different character which could more conveniently be subject of a fresh action. I do not see how this amendment would result in a change of the action into one of a substantially different character. The rule is that if the true points at issue are to be determined and real justice be done, the pleadings of neither party should be too rigidly adhere to. The court in such circumstance will make such amendments as are necessary for the real rights of the parties to be determined. Consequently this application is hereby granted.”
From the reasoning of the learned trial Judge and the conclusion reached therefrom, I have no cause to be in doubt that he acted judicially and judiciously in the exercise of his discretion to grant the application for further amendment of the 1st to 3rd Respondents’ statement of claim. The Appellants are merely seeking to build a mountain out of a mole hill in an unjustified manner. The amendment made in the further amended statement of claim did not alter the nature of

the case, neither did it jeopardize the likely defence put up by the Appellants. I take this stance given the averment in paragraph 52(g) of the originating statement of claim dated 9/10/2012 which reads thus:
“52(g) A DECLARATION that purported exclusion of the 3rd claimant from participating in the selection leading to the forwarding of the name of ZEIKI of Ekpeshi-Egbigele clan on the ground that he is not an Ehabor child or for any other reason is null and void and of no effect whatsoever.”
The further amended statement of claim which stands now as the 1st to 3rd Respondents’ extant pleadings reads in paragraph 60(h) as follows:
“Paragraph 60(h):- A DECLARATION that the purported exclusion of the claimants from participating in the selection leading to the forwarding of the name of the 1st defendant as ZEIKI of Ekpeshi-Egbigele clan on the ground that they are not Enabor children or for any other reason by virtue of the Registered Declaration No 159 of 1979 is inconsistent with the provisions of Section 42(2) of the 1999 Constitution as amended and to that extent, it is null and void and of no effect

whatsoever.”
From the two set of averments above set out, it can be justifiably stated that the later does not constitute a radical departure from the former, they both bear on the issue of succession to the stool of the traditional rulership of Ekpeshi-Egbigele clan. This is so notwithstanding the additional phrase in the paragraph 60(h) to wit: “is inconsistent with the provision of Section 42(2) of the 1999 Constitution as amended.” Challenging same at this stage of amendment of pleadings is like putting a cart before the horse, because there is still plenty of time and opportunity to engage in legal gymnastics at the trial. It does not presently lie with the Appellants to seek to prevent the Respondents from making averments in their pleadings which they feel could help their case so long it is within the ambit of the law. It is however a different ball game for them to prove their case on the merit by preponderance of evidence.
As earlier stated, the basic principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties and the Court is wont to grant

same except where such amendment will entail injustice. See YUSUFU & ANOR VS. OBASANJO (2003) 16 NWLR (PT. 847) 554; AMADI VS. APLIN (1972) 4 SC 228; OJAH VS. OGBONI (1976) 4 SC 69; ALSTHOM SA VS. SARAKI (supra).
In the light of the above reason, this issue is hereby resolved against the Appellants.

ISSUE TWO: That is whether the provisions of Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is applicable to set aside the Chieftaincy Declaration No 159 of 1979 as a result of amendment granted by the lower Court.

Now having addressed the issue in the course of considering of issue one, it will amount to unnecessary academic venture to engage in any further discourse herein. The bottom line is that the learned trial Judge exercised his discretion judiciously and judicially in granting the application to further amend the 1st and 3rd Respondents’ statement of claim having duly considered all the parameters before coming to a correct conclusion.
Albeit, given the nature of the application sought and granted in the lower Court, I am inclined to regard issue two as formulated by the Appellant as

hypothetical and speculative because the answer to the said issue will properly and adequately be addressed at the trial where the 1st to 3rd Respondents’ claim shall be considered on the merits.
The Courts have been enjoined not to concern itself with hypothetical or academic questions which enures no profit on the parties. See SHETTIMA VS GONI (2011) 18 NWLR (PT. 1279) 413; NWAWKA VS. ADIKAMKWU (2014) LPELR 22927 (CA).
Courts will only consider a justifiable controversy upon existing state of facts and not upon hypothetical or speculative questions. See TRADE BANK PLC VS. BENILUX (NIG) LTD (2003) 5 (SC) page 1 or (2003) 9 NWLR (PT. 825) 416.

The existing state of facts as presently constituted is whether the further amendment of the statement of claim as sought by the 1st to 3rd Respondents ought to have been granted and not whether the facts averred therein are proveable, moreso that it did not alter the nature of the claim or put the Appellant in a state of helplessness as to amount to injustice to them.
On the whole, I find this appeal unmeritorious and it is accordingly dismissed.

The Ruling of the High Court of Edo State

sitting in Igarra Judicial Division and delivered on the 28th day of September, 2015 is hereby affirmed.

Given that this interlocutory appeal has unfortunately lasted for five years, it is hereby ordered that the substantive suit be placed on a priority list and given accelerated hearing.
I award a cost of N200,000 against the Appellant in favour of the 1st to 3rd Respondents.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with my learned brother, Samuel Chukwudumebi Oseji, JCA; that this appeal lacks merit and it should be dismissed. For all the reasons given in the leading judgment, I also dismiss the appeal
I abide by all the orders made by my learned brother.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded the privilege of reading in advance a draft of the Judgment just delivered by my noble lord, Samuel Chukwudumebi Oseji JCA., in which all the applicable principles of law on amendment of pleading have been reiterated and ably demonstrated with the peculiar facts of this appeal. There is really nothing left that has not been covered. I adopt it as mine. I shall

only add a word or two to the rich analysis contained therein.

My lords, in law as soon as it appears that the way in which a party has framed his case will not lead to a decision on the real matters in controversy, it is as much a matter of right of the party to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right and therefore an amendment will be allowed if it is intended to bring the pleadings in line with evidence already led. However, it must be pointed out at once that notwithstanding the utilitarian role of amendment in bringing into focus the real issue in controversy, yet the Court will not grant amendment to set up a different cause of action or change the character of the case of a party without an amendment of the writ of summons. It is also the law that where an amendment is sought purposely for either the reason of derailment it is certainly done in bad faith. There must in all circumstances be good faith and reason for an amendment to be obliged. The question of amendment, although open ended as it may sound, is not however, a free for all match overreaching the cause of justice. It is

rather for the just determination of a cause, which makes litigation effectual and meaningful. What then can be said to be an amendment within the broader context of the litigation process in our Courts? An amendment simply put in the correction of an error committed in any process, pleading or proceedings at law or in equity and thus an amendment can be made either as a matter of course or by consent of the parties upon notice to the Court in which the proceedings is pending. As earlier observed, because the Courts are more concerned with deciding the rights of the parties than in their errors or mistakes, which can be corrected at any stage, an amendment which will not cause injustice to the other party and can at worst be ameliorated by cost will be granted at any stage if it is in the interest of justice. The aim of an amendment, as is commonly agreed is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which may arise in the prosecution of the case. See Alhaji Abdullahi Adamu V. Mallam Mumkaila Isa (2014) LPELLR -24169 (CA), per Georgewill JCA. See also Okafor V. Ikeanyi (1979) 3 – 4 SC 99;

Chief Eyo Eta V. Chief Okon Dazie (2013) LPELR 2013 6 (SC); Adekeye V. Akin – Olugbade (1987) 3 NWLR (Pt. 60) 214; Ogboru V. Ibori (2004) 7 NWLR (Pt.871) 192; Hon. Justice Garba Abdullahi V. Governor of Kano State & Ors (2011) LPELR 8925.
Having reiterated the relevant principles of law on amendment as above, and having considered the fact and circumstances in the instant appeal, I am of the view that the Court below applied the correct principles of the law on amendments when it granted the amendment sought and therefore, the appeal against the decision of the Court below to so do lacks merit and is liable to be dismissed.

It is the light of the above and for the fuller reasons so adroitly marshaled out in the lead judgment, that I too hereby dismiss this appeal for lacking in merit. The ruling of the Court below is hereby also affirmed by me.

Appearances:

P.T. Braimoh with him, brief of Roland Otaru SAN For Appellant(s)

E.C. Abednego with him E.C. Ojo for the 1st and 3rd Respondents For Respondent(s)