KALSHINGI v. LABARAN & ANOR
(2020)LCN/14734(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, November 10, 2020
CA/G/273/2018
RATIO
ORDER: DETERMINANT OF WHETHER A DECISION OR ORDER OF COURT IS FINAL OR INTERLOCUTORY
The determinant of whether a decision or an Order of Court is final or interlocutory is the nature of the decision or Order made by the Court. Where the decision or Order disposes of the rights of the parties, it is final – Victor V Federal University of Technology, Akure (2015) 4 NWLR (Pt. 1447) 1, 17. PER SANKEY, J.C.A.
COURT: WHETHER A COURT CAN SIT ON APPEAL OVER THE DECISION OF A COURT OF CONCURRENT JURISDICTION
The law is settled that a Court is without jurisdiction to sit on appeal over the decision of a Court of concurrent jurisdiction. Where a party is aggrieved by the decision of the Court, the proper thing to do is to file an appeal against such a decision and lay out his complaints over the specific findings of the Court for which he is dissatisfied. PER SANKEY, J.C.A.
APPEAL: DUTY OF THE COURT WHEN RAISING MATTERS SUO MOTU
While a Court is allowed to raise issues of jurisdiction suo motu where such is apparent to it, it must invite Counsel to address it on such issues before it proceeds to take a decision and make a final pronouncement thereon one way or another. In the instant case, not only did the learned trial Judge raise these issues suo motu, he unilaterally shut out the parties from addressing him on the issues raised by him before taking a unilateral decision thereon, wherein he opined that the order for a trial de novo was not complied with within a reasonable time. He also held that the Writ of summons had ceased to be alive since it was not renewed after 12 months. In view of these grave lapses, the decision rendered cannot stand.
In the case FRN V Mohammed (2014) 9 NWLR (Pt. 1413) 590, E-C, it was held as follows:
“Where a Court finds it necessary to raise an issue which otherwise has not been raised by any of the parties before it, it then becomes necessary for that Court to place properly the issue before the parties and ask them to address on same. Failure to do that will indeed tantamount to abdicating its jurisdictional responsibility and a breach of natural justice and constitutional principle of fair hearing.”
Again in the case of Gwede V INEC (2014) 18 NWLR (Pt. 1438) 56, it was held that –
“A Court may raise an issue suo motu, but where it decides to base its decision on the matter on the issue so raised, the Court is duty bound to invite Counsel for the parties to address on it, particularly the party who would be adversely affected by the result of the exercise.” PER SANKEY, J.C.A.
PLEADINGS: PRINCIPLES GUIDING THE AMENDMENT OF PLEADINGS
The law is settled that a party to a case is allowed to amend his pleadings in order to bring out the real dispute between the parties. It is for this reason, among others, that the Supreme Court in Laguro V Toku (1992) 2 NWLR (Pt. 223) 278 clearly set out the principles guiding the amendment of pleadings as follows:
“In the exercise of its power to amend pleadings, a Court is guided by the following principles, namely:
a) The consideration of the justice of the case and the rights of the parties to it;
b) The need to determine the real question or questions in controversy between the parties;
c) The duty of a Judge to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct an honest and unintentional blunder or mistake in the circumstances of the case and the amendment will expedite the hearing of the action without injustice to the other party…”
At pages 294-295 of the Report, Akpata, JSC observed as follows:
“Justice demands that in order to determine the real matter in controversy, pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or this Court (Supreme Court) to bring them in line with the evidence already adduced, provided the amendment is not intended to over-reach and the other party is not taken by surprise and the claim or defence of the said other party would not have been different had the amendment been averred when the pleadings were first filed.”
Thus, some of the settled principles of law which ought to guide Courts in the exercise of their discretion to grant or refuse amendments to pleadings are –
1. An amendment will be granted to a party to enable him present his case and bring to the fore the real issues in controversy between the parties unless the application for the amendment is brought mala fide.
2. An amendment will be granted to correct errors or mistakes made by the parties and to bring the evidence in line with the pleadings.
See Warri V Etsanomi (2019) LPELR-49523 (SC) 20 per Aka’ahs, JSC; NJC V Dakwang (2019) LPELR-46927 (SC) 23-24, E, per Aka’ahs, JSC.
In addition, the objective of the Court is always to aim at doing substantial justice, and not to dwell unduly on technicalities. Thus, the Court will generally allow formal amendments to pleadings which are necessary in the interest of determining the real issues in controversy between the parties, for the ultimate attainment of justice and bringing an end to litigation. See the decision of the Supreme Court in Regd. Trustees AON V NAMA (2014) 8 NWLR (Pt. 1408) 1.
Finally, it is a settled principle of law that an amendment to pleadings can be made at any stage of the proceedings, even for the first time before an appellate Court. See Obialor V Uchendu (2014) 11 NWLR (Pt. 1419) 444; and NBC Plc V Ubani (2014) 4 NWLR (Pt. 1398) 421. PER SANKEY, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
ZAKARI SARAKI KALSHINGI APPELANT(S)
And
1. ALH. SANI LABARAN 2. EXECUTIVE GOVERNOR, GOMBE STATE RESPONDENT(S)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Justice Gombe State in suit No. GM/94/2017 delivered on March 20, 2017 by Ibrahim Mohammed, J.
The brief facts of the case leading to the Appeal are thus: Previously, the Appellant herein, as Plaintiff, had filed a suit before the then High Court of Justice Bauchi State (comprising of the present Bauchi and Gombe States) in Suit No. BA/3/87, against the two Respondents. At the close of trial, Judgement was delivered in the Appellant’s favour per Ike Okoye, J.
Dissatisfied with the Judgement, the 1st Respondent (as 1st Defendant before that Court), appealed to the Jos Division of this Court in Appeal No. CA/J/211/2005. After hearing the Appeal, the Court of Appeal, per Bdliya, JCA set aside the Judgement of the Bauchi State High Court and made an order for a retrial on November 7, 2014.
Based on the order for retrial by this Court, the case was re-assigned to Ibrahim Mohammed, J. The Plaintiff therein (now Appellant before this Court) filed an application seeking to amend the Writ of Summons
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and other accompanying processes, and also to substitute the 2nd Defendant in the suit, i.e. the Executive Governor, Gombe State with the Ministry of Lands and Survey, Gombe State. The 1st Respondent opposed the application and so filed a counter-affidavit.
Upon hearing the application, the lower Court in its Ruling refused the prayers therein and dismissed the application. Aggrieved by this determination, the Appellant filed this Appeal on March 22, 2018 wherein he complained on five Grounds of Appeal. Therein, he sought an Order of this Court allowing the Appeal and setting aside the decision of the lower Court.
At the hearing of the Appeal on September 7, 2020, H.N. Onyekwere Esq. in arguing the Appeal, adopted the Appellant’s Brief of argument filed on 05-12-18 and the Appellant’s Reply Brief to the 1st Respondent’s Brief of argument filed on 29-04-19, deemed filed on 17-10-19, both Briefs settled by Luka Haruna Esq., as well as the Appellant’s Reply Brief to the 2nd Respondent’s Brief of argument filed on 22-07-20, deemed filed on 07-09-20 and settled by S.A. Onimisi Esq., in urging the Court to allow the Appeal
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and set aside the ruling of the lower Court delivered on 20-03-18.
Learned Counsel for the 1st Respondent, H. I. Yerima Esq., in opposing the Appeal, adopted the 1st Respondent’s Brief of argument filed on 10-01-19 and settled by C.D. Kadala Esq., in urging the Court to dismiss the appeal as lacking in merit and to affirm the Ruling of the lower Court. The 1st Respondent also filed a motion on notice on 10-01-19 which was argued at paragraphs 4.01 to 4.05 at pages 3-5 of the Respondent’s Brief of argument. He also adopted the arguments therein in urging the Court to strike out the Appeal.
On the part of the 2nd Respondent, J.J. Lah Esq., State Counsel from the Ministry of Justice Gombe State, adopted his Brief of argument filed on 21-07-20 and settled by the same Counsel, in urging the Court to strike out the Appeal on the ground of incompetence.
The Appellant in his Brief of argument, formulated two issues for determination from the five Grounds of Appeal as follows:
i. Whether the learned trial Judge was right in dismissing the application of the Appellant on the basis of ambiguities and inconsistencies in the suit number,
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notwithstanding the fact that same has already been decided by a Court of concurrent jurisdiction, that is [the] Bauchi State High Court. (Grounds 1, 2 and 4)
ii. Whether the learned trial Judge in ruling on the motion, can suo motu raise [an] issue of jurisdiction and resolve same without inviting the parties to address him on same. (Ground 3)
The 1st Respondent on his part, distilled the following two issues for determination:
I. Whether the Appeal of the Appellant before the Court is competent?
II. Whether the High Court in refusing to grant the application dated 6/11/2017 exercised its discretion judicially and judiciously. (Grounds 1, 2, 3 and 4)
Finally, the 2nd Respondent framed one sole issue for determination thus:
Whether the Appeal is not grossly incompetent having emanated from an interlocutory ruling of the lower Court and filed without leave.
After due examination of the three sets of issues vis-a-vis, I adopt the two issues for determination crafted by the Appellant in resolving the Appeal.
However as aforesaid, the 1st Respondent filed a Motion on Notice on 10-01-19 dated 09-01-19 wherein he seeks the
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following relief:
1) An Order striking out this Appeal No. CA/J/273/2018 between the parties for being incompetent.
The application was based on eight (8) grounds and is supported by a four (4) paragraph affidavit. As indicated above, the motion was argued alongside the Appeal. However, since it raises an issue touching on the competence of the Appeal, thus raising an issue of the jurisdiction of this Court to entertain the Appeal, the motion, and by implication issue one framed for determination by the 1st Respondent in his Brief of argument, will be addressed first.
The 1st Respondent, in arguing the application in his motion on notice under his issue one, contends that the Notice and Grounds of Appeal of the Appellant filed against the Ruling of the lower Court delivered on 20-03-18 contains grounds of mixed law and facts. He submits that an appeal against an interlocutory decision, other than on grounds of law, requires the leave of Court. Without such leave, the Appeal is incompetent and liable to be struck out. Reliance is placed on Garuba V Omokhodion (2011) 200 LRCN 100; Ikweki V Ebele (2005) 127 LRCN 1231; Anoghalu V Oraelosi (1999)
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73 LRCN 3198 among others.
Counsel submits that in this Appeal, the Grounds of Appeal and their particulars constitute facts and mixed law and facts. Therefore, the failure of the Appellant to obtain leave before the Appeal was filed, renders the Grounds of appeal and the entire Appeal incompetent. He therefore urged the Court to strike out the Appeal.
In like vein, the 2nd Respondent raised the issue of the incompetency of the Appeal in his lone issue for determination. He submits that by Section 242(1) of the 1999 Constitution (as amended) and Section 14 of the Court of Appeal Act, 2011 (as amended), no Appeal against an interlocutory decision of the High Court of a State or a Federal High Court shall be filed unless leave is granted, either by the relevant State High Court, the Federal High Court or the Court of Appeal. He relies on Adejumo V Agumagu (2015) 12 NWLR (Pt. 1472) 1, 15. Counsel thus submits that the failure of the Appellant to obtain leave to appeal against the interlocutory Ruling renders the Appeal incompetent. He therefore also urged the Court to dismiss the Appeal.
Learned Counsel for the Appellant filed separate Reply
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Briefs of arguments in response to these submissions. However, his submissions on issue one of the 1st Respondent’s Brief and on the sole issue in the 2nd Respondent’s Brief, are identical. Therein, he submits that the refusal of the lower Court to grant the Appellant’s application and the implied dismissal of the suit on the basis of the inconsistency in the suit numbers on the certified true copies of the processes transmitted for the purpose of a retrial, amounts to a final decision of the Court. Counsel submits that the trial Court not only determined the motion before it, but also determined the substantive suit when it held that the life span of the Writ had expired, and for that reason, he dismissed the suit. Counsel relies on Ibrahim V Gwandu (2015) 5 NWLR (Pt…?) 1, 11 (incomplete citation); Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 534; YSG Motors V Okonkwo (2010) 15 NWLR (Pt. 1217) 524; Donald V Saleh (2015) 2 NWLR (Pt….?) 529, 549 (incomplete citation).
Counsel therefore submits that this Appeal not being an interlocutory Appeal, by Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
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it is as of right. That therefore leave is not required to file the Appeal. He relies on Eco Int’l Bank Plc V NULGE, Jalingo LGC (2015) 10 NWLR (Pt. …?) 49, 56 (incomplete citation). Consequently, Counsel submits that the Appeal is not incompetent.
RESOLUTION
The determinant of whether a decision or an Order of Court is final or interlocutory is the nature of the decision or Order made by the Court. Where the decision or Order disposes of the rights of the parties, it is final – Victor V Federal University of Technology, Akure (2015) 4 NWLR (Pt. 1447) 1, 17.
I have thoroughly examined the Ruling of the lower Court contained at pages 177 to 184 of the Record of Appeal. Therein, aside from addressing the issues arising in the application for the amendment of pleadings and substitution of the 2nd Respondent, the learned trial Judge proceeded to find that the Order made by this Court (Jos Division) for a trial de novo was not complied with within a reasonable time. He, therefore, found that the life span of the Writ of summons which is 12 months, had expired three to four years down the line, and so the Writ of
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summons had lapsed, same having not been renewed. It was mainly for these reasons that the application before the trial Court was dismissed.
By these findings, can it seriously be said that the decision of the lower Court in this Ruling was interlocutory and that there were pending proceedings before the lower Court? I think not. I am therefore obliged to agree with the Appellant that by the Ruling in the application of the Appellant to amend his pleadings, the lower Court proceeded to determine the suit by finding that the Writ had lapsed. This was therefore a final decision of the lower Court because its effect or purport was to end the proceedings in the suit before that Court.
Thus, being a final decision, it comes within the purview of Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and not Section 242(1) thereof. Thus, the Respondents are mistaken in their belief that leave of Court was required to file the Appeal. It was not.
In the result, there is no merit in the issue raised in the Motion on notice of the 1st Respondent, which issue was argued by both Respondents in their Briefs of
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argument. I accordingly dismiss the motion and resolve the respective issues for determination relating to this, in both the 1st and 2nd Respondents’ Briefs, in favour of the Appellant.
MAIN APPEAL
As aforesaid, the Appellant formulated two issues for determination in his Brief of argument and same having been adopted, they shall be addressed together hereunder as follows:
Issues one and two together –
i. Whether the learned trial Judge was right in dismissing the application of the Appellant on the basis of ambiguities and inconsistencies in the suit number notwithstanding the fact that same has already been decided by a Court of concurrent jurisdiction, that is, Bauchi State High Court. (Grounds 1, 2 and 4.)
ii. Whether the learned trial Judge in ruling on the motion can suo motu raise [an] issue of jurisdiction and resolve same without inviting the parties to address him on same. (Ground 3)
In respect of issue one, learned Counsel for the Appellant submits that by the principle of stare decisis, a High Court Judge cannot sit on appeal over the decision of another High Court Judge or by way of review, vary it
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because they are of concurrent jurisdiction. He relies on Waziri V Ali (2009) 4 NWLR (Pt. 1130) 225; Omeike V Omeike (2013) 13 NWLR (Pt. 1371) 433.
Counsel submits that the suit of the Appellant at the first instance was heard by the High Court of Bauchi State presided over by Justice Ike Okoye, wherein Judgement was delivered on January 31, 1995. Aggrieved by this decision, the 1st Respondent herein appealed to the Court of Appeal Jos Division vide Appeal No. CA/J/211/2005. The Appeal was successful, whereupon the Appeal Court remitted the case to the High Court of Gombe State (which had then been carved out of Bauchi State) for retrial before another Judge other than Ike Okoye, J.
When the matter came up before the lower Court, this time presided over by Ibrahim Mohammed, J., the 1st Respondent herein contended that there was an inconsistency in the suit numbers of the case remitted by the Court of Appeal and then being retried by the lower Court. The Appellant however submitted in response that the said inconsistency in the numbering of the suit had earlier been resolved by Ike Okoye, J. in the earlier suit, wherein he accepted Suit No. BA/3/87
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over Suit No. BA/100/85 as the registration number of the case; and so numbered all processes accordingly (page 96 of the Record of proceedings).
The Appellant further contends that the Appeal which resulted in the Order for retrial did not include an appeal against the findings of Okoye, J. on the issue of suit numbers which the erstwhile Judge had already resolved. Nonetheless, the learned trial Judge proceeded to review the decision of Okoye, J. on this issue and by implication, sat on appeal over his decision, which decision emanated from a Court of concurrent jurisdiction (page 182 of the Record).
Counsel submits that the duty of the trial Court was to hear the suit de novo as ordered by the Court of Appeal, and therefore to determine the application for the amendment of pleadings and the substitution of the name of the 2nd Defendant therein. The issue of the suit numbers was therefore extraneous to the application and to the issues in the substantive suit. Counsel further submits that the attitude of Courts is to lean towards doing substantial justice, instead of relying on technicalities to defeat the ends of justice – Wassah V Kara (2015) 4
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NWLR (Pt. 1449) 374.
Counsel submits that in the instant case, the refusal of the lower Court to grant the application and by implication, to dismiss the substantive suit on the basis of the inconsistency in suit numbers in the certified true copies of processes transmitted for retrial because the original Judge’s file could not be traced, amounted to a technicality which defeats the ends of justice. More so that the loss of the file was not the Appellant’s fault.
In respect of the second issue for determination, the Appellant submits that the Appellant’s application before the lower Court was for the amendment of his pleadings and the substitution of the 2nd Respondent as a party to the suit. However, in the determination of the application, the learned trial Judge neither referred to nor placed any reliance on the affidavit evidence placed before the Court by both parties. Instead, he suo motu raised issues of (1) a reasonable time within which a retrial could be conducted and (2) the life span of a Writ of summons. The learned trial Judge pronounced on these issues, dismissed the application and by implication, also dismissed
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the entire suit. Counsel contends that the trial Judge did not invite Counsel to address him on these issues before he decided them. He therefore relies on FRN V Mohammed (2014) 9 NWLR (Pt. 1413) 590, E-C to submit that a Court should not raise issues suo motu without inviting parties or their Counsel to address it on such issues.
In respect of the merit of the application before the Court for the amendment of pleadings, Counsel submits that an amendment to pleadings can be made at any stage of the proceedings. Such an application will generally be granted unless it will entail injustice to the Respondent; or where the Applicant is acting mala fide; or where an injury will be occasioned to the Respondent which cannot be compensated in costs – Obialor V Uchendu (2014) 11 NWLR (Pt. 1419) 444; NBC Plc V Ubani (2014) 4 NWLR (Pt. 1398) 421; Regd. Trustees AON V NAMA (2014) 8 NWLR (Pt. 1408) 1.
Counsel submits that the learned trial Judge without regard to any of the principles guiding the grant of an amendment to pleadings, raised issues which were not canvassed or argued by any of the parties, and on the strength of those issues raised
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suo motu, determined the application.
In addition, Counsel submits that the conclusion in respect of these issues raised suo motu were also not in accordance with the position of the law. Specifically, on the issue of a reasonable time within which a retrial should be commenced, he argues that there is no law limiting the time prescribed for this. Thus, the invocation of the maxim, delay defeats equity by the trial Court, is in error as same cannot be used to extinguish the constitutional right of the Appellant’s access to Court, except in instances where a Limitation Law is applicable.
Counsel also submits that the issue of reasonable time which the trial Court raised and found fatal to the application, has no basis in an application for the amendment of pleadings and an application for substitution of parties, as such an application can be made at any time before Judgement, even on appeal.
On the issue of the life span of a Writ of summons, Counsel relies on Order 5 Rule 16 of the Bauchi State High Court Civil Procedure Rules to submit that the duration and renewal of a Writ of summons is only activated when the original Writ of
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summons has not been served on a defendant. This was not the issue before the trial Court as it was a case sent back for retrial by this Court.
Counsel therefore contends that the learned trial Judge erred when he raised issues bordering on jurisdiction suo motu, and relied on same in dismissing the application and by implication the entire suit, without inviting the parties to address him thereon. In addition, he submits that the conclusion arrived at in resolving the issues raised suo motu is erroneous and not in consonance with any known law. Counsel therefore urged the Court to allow the Appeal and set aside the Ruling of the lower Court.
In response, learned Counsel for the 1st Respondent submits that after the Court of Appeal remitted the suit to the lower Court for retrial, the Appellant filed a motion seeking an amendment of the pleadings and a substitution of the 2nd Defendant, However, in the title of the motion, the substitution of the 2nd Respondent had already been effected from the “Executive Governor of Gombe State” to the “Ministry of Lands and Survey, Gombe State”. The lower Court, therefore, found as a fact
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that without the leave of Court, the Applicant had pre-empted the Court, carried out the alteration in their process in respect of the names of the parties. Counsel submits that this changed the character of the case and so no amendment could be granted in such a situation.
Counsel also submits that the lower Court carefully considered the application based on the materials placed before it. He contends that Suit No. BA/100/85 has no Writ before the Court that could be amended; and the pleadings were filed in Suit No. BA/100/85 and not in Suit No. BA/3/87. Thus, the lower Court held that since there were inconsistencies and ambiguities surrounding the mysterious issuance of Exhibit A in 1986 and the Writ of summons was associated with a different suit number, it would not be in the interest of justice to grant the amendment sought (page 183 of the Record).
Counsel therefore submits that the lower Court exercised its discretion based on the materials placed before it judicially and judiciously. That being so, the exercise of discretion cannot be disturbed by a higher Court on appeal for the simple reason that it would have exercised that discretion
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differently. He relies on Banna V Telepower Nig Ltd (2007) 144 LRCN 440, 456. Counsel therefore urged the Court not to interfere with the exercise of the discretion of the lower Court, and to dismiss the Appeal.
The second Respondent in his Brief of argument did not address these two issues for determination at all, but confined his submissions to his lone issue which dwelt exclusively on the competence of the Appeal simpliciter as raised in the motion on notice filed by the 1st Respondent.
RESOLUTION
In addressing these issues starting from issue one, I note that same has been addressed in the motion on notice of the 1st Respondent and has, earlier in the body of this Judgement, been dismissed by this Court. This issue again touches on the matter of the appropriate suit number of the Writ of summons before the lower Court.
From the printed Record of proceedings transmitted to this Court, it is evident that the case was earlier filed and registered as Suit No. BA/3/87. The case was heard and determined on the merit by Ike Okoye, J. of the then Bauchi State High Court (whose jurisdiction at the time covered both Bauchi and Gombe States). On
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January 31, 1995, the Hon. Justice Ike Okoye delivered Judgement in the suit and it is informative that the suit number on the Judgement is reflected as Suit No. BA/3/87 (page 95 of the Record). Therein, the learned Judge clearly addressed the issue of the different suit numbers in the court processes of the suit before him i.e. BA/100/85 and BA/3/87. In the said Judgement contained at pages 95 to 111 of the Record, but particularly at page 96 thereof, Okoye, J. held inter alia as follows:
“For the avoidance of doubt I want to observe that although the writ of summons had its suit No. BA/3/87 all the parties in this case for reasons best known to them number their pleadings BA/100/85.
I take this to be an oversight on the part of the plaintiff and the 2 defendants. I have concret (sic) [corrected] the suit numbers to fall in line with the correct suit No. on the writ which is BA/3/87.”
This was a specific finding of the first Court of trial that heard the case between the parties. The Court thereafter proceeded to find in favour of the Plaintiff (now Appellant) on the merits of the case and awarded him the land in dispute.
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Aggrieved by that decision, the 1st Defendant (now 1st Respondent) filed an Appeal before the Court of Appeal Jos Division. The Appeal was duly heard and the Judgement of the Court was delivered on November 7, 2014, per Bdliya, JCA.
In the lead Judgement of this Court (contained at pages 127 to 156 of the Record), Ibrahim Shata Bdliya, JCA reproduced the eight (8) grounds of Appeal of the Appellant therein, who is the 1st Respondent in this Appeal, at pages 129 to 130 of the Record of appeal. A close scrutiny of these Grounds reveals that the 1st Respondent did not appeal against the specific findings of Okoye, J. in respect of the suit number of the case as spelt out earlier. That being the case, same was not addressed nor pronounced upon by this Court in its Judgement now referred to. What it therefore means is that the said findings thereon are still subsisting, having not been overruled on any further appeal from the Court of Appeal to the apex Court.
However surprisingly, the learned trial Judge, Ibrahim Mohammed, J., in the return journey of the case for retrial before the Gombe State High Court, suo motu raised the issue of the suit numbers
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not being an issue placed before him, and then even more significantly, pronounced upon them inter alia as follows (at pages 182 to 183 of the Record):
“Noticeably even counsel to the plaintiff and defendant had respectively used suit no. BA/100/85 in filing their processes notably statement of claim and statement of defence among other supposing the writ of summon before High Court 4 was not bearing suit Number BA/100/85, but BA/3/87. No wonder the judge of High Court No. 4 Bauchi took it upon himself to make clear on record that the correct suit Number is BA/3/87 and not BA/100/85.
With due respect, I am of the view that the judge in High Court No. 4 would have invited the counsel to both parties to address him as why they continuously used BA/100/85 and No. BA/3/87 as the suit number of the case before him. But the judge in High Court decided suo motu that the correct suit is BA/3/88 without stating the basis of so doing.
The High Court No. 4 did not also explain why the writ of summons dated and filed in May 1986 had a suit number assigned in 1978 and not in 1986…
Accordingly, in the face of this (sic)
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inconsistencies and ambiguities surrounding the mysterious issuances (sic) of Exhibit A in 1986 the writ of summons associated with different suit number it will not be proper in the interest of justice to grant any such amendment.” (Emphasis supplied)
From the tenor and actual wordings of these findings, the learned trial Court presumed to sit on appeal over the findings of High Court No. 4 Bauchi State presided over by Ike Okoye, J., a Court of concurrent jurisdiction with it. It is obvious that he disagreed with the substantive findings of the former trial Judge in respect of the suit numbering of the case which had been remitted to him for retrial by this Court. However, the case before the previous trial Court, i.e. the Bauchi State High Court No. 4, was registered and heard as Suit No. BA/3/87 and the Judgement of the Court bore the registration number as Suit No. BA/3/87. The trial Judge who presided over the hearing of the case, Ike Okoye, J., in its first coming, upon recognizing the multiple and inconsistent numbering of the Court processes, made specific pronouncements on the apparent confusion over the registration number of the suit.
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These specific findings were not appealed against by the 1st Respondent in his Appeal to the Court of Appeal in 2014. It was therefore not open to the lower Court to whom the suit had been sent back for retrial to re-open the issue. This is more so that the Appeal presented to the Court of Appeal Jos Division by the Respondents herein was in respect of Suit No. BA/3/87 and therefore the case remitted to the lower Court for retrial was Suit No. BA/3/87, and not any other suit.
Thus, the findings reproduced above by the lower Court wherein the learned trial Judge purported to sit on appeal over the Judgement of the Bauchi State High Court No. 4 presided over by Ike Okoye, J., was both unwarranted and more importantly, made without jurisdiction. This is because (1) there was no appeal over the said findings, and (2) the Bauchi State High Court (which heard the matter first and delivered Judgement in 1995), and the Gombe State High Court (which was re-trying the case as per the Order of the Jos Division of this Court), are Courts of concurrent jurisdiction.
The law is settled that a Court is without jurisdiction to sit on appeal over
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the decision of a Court of concurrent jurisdiction. Where a party is aggrieved by the decision of the Court, the proper thing to do is to file an appeal against such a decision and lay out his complaints over the specific findings of the Court for which he is dissatisfied.
In the instant case, the 1st Respondent, unhappy with the decision of the Bauchi State High Court No. 4 wherein it entered Judgement on the merits in favour of the Appellant in the substantive suit, filed an appeal to the Court of Appeal, Jos Division. In that Appeal, there was no complaint against the specific findings of the Court in respect of the suit number of the case, and so the Court of Appeal made no pronouncement thereon. Therefore, the retrial ordered by this Court was in respect of the substantive suit reviewed by the appellate Court, that is, Suit No. BA/3/87, no more.
In addition to this, the learned trial Judge presumed to reopen a matter which had been pronounced upon by the trial Court which had heard the suit prior to the earlier Appeal determined on November 7, 2014, and against which there had been no appeal. Thus, it was totally inappropriate for him to have
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overruled the specific findings of a Court of concurrent jurisdiction, thus purporting to exercise powers which it did not have. See the following decisions on this: State V The Customary Court Owerri Urban (2016) LPELR-40969 (CA) 20-27, F-D; Azuh V UBN Plc (2014) 11 NWLR (Pt. 1419) 580, 608, F-H to 609, A-C, per Kekere-Ekun, JSC; Witt & Bisch Ltd V Dale Power Systems Plc (2007) 17 NWLR (Pt. 506 SC 121, per Ogbuagu, JSC; Skenconsult Nig. Ltd V Ukey (1981) LPELR-3072(SC) 30-33, E-B, Nnamani, JSC.
In respect of issue two, the Appellant complains that the learned trial Judge in ruling on the motion on notice seeking an amendment of pleadings and substitution of the 2nd Defendant, suo motu raised issues touching on the competence of the suit, and therefore the jurisdiction of the Court to entertain same. He then proceeded to resolve these new issues without recourse to Counsel to the parties and inviting them to address the Court on same.
I have once again examined the Record of proceedings of the lower Court. There is no gainsaying that this complaint is completely borne out by the Record. The Record of Appeal discloses that the parties, having
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presented their arguments for and against the motion seeking those reliefs (as contained at pages 177 to 179 of the Record), the lower Court ruled thereon (at pages 180 to 184 of the Record). Specifically, at pages 183 to 184 of the Record, the learned trial Judge raised the issue of whether the suit was being heard within a reasonable time after the Court of Appeal remitted it to the High Court for retrial, and also whether the life span of the Writ of summons had since expired. Nowhere in the submissions of learned Counsel for the three parties, i.e. the Plaintiff, the 1st Defendant or the 2nd Defendant, had these issues been raised and/or canvassed in arguing the application. The Court therefore went outside the issues canvassed before it to introduce these issues suo motu.
While a Court is allowed to raise issues of jurisdiction suo motu where such is apparent to it, it must invite Counsel to address it on such issues before it proceeds to take a decision and make a final pronouncement thereon one way or another. In the instant case, not only did the learned trial Judge raise these issues suo motu, he unilaterally shut out the parties from addressing
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him on the issues raised by him before taking a unilateral decision thereon, wherein he opined that the order for a trial de novo was not complied with within a reasonable time. He also held that the Writ of summons had ceased to be alive since it was not renewed after 12 months. In view of these grave lapses, the decision rendered cannot stand.
In the case FRN V Mohammed (2014) 9 NWLR (Pt. 1413) 590, E-C, it was held as follows:
“Where a Court finds it necessary to raise an issue which otherwise has not been raised by any of the parties before it, it then becomes necessary for that Court to place properly the issue before the parties and ask them to address on same. Failure to do that will indeed tantamount to abdicating its jurisdictional responsibility and a breach of natural justice and constitutional principle of fair hearing.”
Again in the case of Gwede V INEC (2014) 18 NWLR (Pt. 1438) 56, it was held that –
“A Court may raise an issue suo motu, but where it decides to base its decision on the matter on the issue so raised, the Court is duty bound to invite Counsel for the parties to address on it, particularly the
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party who would be adversely affected by the result of the exercise.”
In the circumstances and in view of the findings made herein-before, I resolve the the two issues for determination in favour of the Appellant.
In addition to the above findings, I take note that that the suit giving rise to this Appeal was filed at the lower Court as far back as 1987. Thereafter, the lower Court, Coram: Ike Okoye, J., heard the case and rendered its decision on the merits giving Judgement in favour of the Plaintiff (now Appellant) on January, 31, 1995. The 1st Defendant (now 1st Respondent) was dissatisfied by that decision and filed an Appeal to this Court on April 26, 1995. The Appeal was duly heard by this Court on September 29, 2014 and Judgement delivered on November 7, 2014, allowing the Appeal and sending it back to the lower Court for retrial. It was in the process of re-trying the case that the application seeking an amendment of pleadings and substitution of the 2nd Defendant was filed by the Plaintiff therein and argued. The learned trial Judge refused to grant the application for the reasons already set out above and also on the ground
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that it will change the character of the case.
Since this is the second time this case is travelling up to the Court of Appeal, it will only engender further delay and thus defeat the cause of justice if it is sent back to the lower Court without attending to the merits of the application for the amendment of pleadings, e.t.c., in this Court. I therefore proceed to do so pursuant to the power vested in this Court by Section 15 of the Court of Appeal Act, 2004 (as amended).
The application was brought vide a motion on notice dated November 20, 2017 (pages 10 to 28 of the Record of Appeal). It seeks the following reliefs:
1. “AN ORDER of this Honourable Court granting leave to the Plaintiff/Applicant to amend his writ of summons, Statement of claim, Witnesses statement on oaths and list of documents in this suit in the proposed amended writ of summons dated 6th November, 2017 is hereby annexed and marked as Exhibit A.
2. AN ORDER substituting the name of the 2nd Defendant, Executive Governor of Gombe State with Ministry of Lands and Survey, Gombe State.
3. AN ORDER of this Honourable Court deeming the Amended Writ of
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summons, Statement of claim, Witness statement on oaths and list of documents herein annexed and marked as Exhibit A as properly filed and served and the name of the 2nd Defendant as properly substituted.”
There are two grounds set out in the motion for bringing the application. It is supported by an 8-paragraph affidavit and one document marked Exhibit A, being the Proposed Amended Writ of summons and Statement of claim.
The law is settled that a party to a case is allowed to amend his pleadings in order to bring out the real dispute between the parties. It is for this reason, among others, that the Supreme Court in Laguro V Toku (1992) 2 NWLR (Pt. 223) 278 clearly set out the principles guiding the amendment of pleadings as follows:
“In the exercise of its power to amend pleadings, a Court is guided by the following principles, namely:
a) The consideration of the justice of the case and the rights of the parties to it;
b) The need to determine the real question or questions in controversy between the parties;
c) The duty of a Judge to see that everything is done to facilitate the hearing of any action pending
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before him and whenever it is possible to cure and correct an honest and unintentional blunder or mistake in the circumstances of the case and the amendment will expedite the hearing of the action without injustice to the other party…”
At pages 294-295 of the Report, Akpata, JSC observed as follows:
“Justice demands that in order to determine the real matter in controversy, pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or this Court (Supreme Court) to bring them in line with the evidence already adduced, provided the amendment is not intended to over-reach and the other party is not taken by surprise and the claim or defence of the said other party would not have been different had the amendment been averred when the pleadings were first filed.”
Thus, some of the settled principles of law which ought to guide Courts in the exercise of their discretion to grant or refuse amendments to pleadings are –
1. An amendment will be granted to a party to enable him present his case and bring to the fore the real issues in controversy between the parties unless the application for the
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amendment is brought mala fide.
2. An amendment will be granted to correct errors or mistakes made by the parties and to bring the evidence in line with the pleadings.
See Warri V Etsanomi (2019) LPELR-49523 (SC) 20 per Aka’ahs, JSC; NJC V Dakwang (2019) LPELR-46927 (SC) 23-24, E, per Aka’ahs, JSC.
In addition, the objective of the Court is always to aim at doing substantial justice, and not to dwell unduly on technicalities. Thus, the Court will generally allow formal amendments to pleadings which are necessary in the interest of determining the real issues in controversy between the parties, for the ultimate attainment of justice and bringing an end to litigation. See the decision of the Supreme Court in Regd. Trustees AON V NAMA (2014) 8 NWLR (Pt. 1408) 1.
Finally, it is a settled principle of law that an amendment to pleadings can be made at any stage of the proceedings, even for the first time before an appellate Court. See Obialor V Uchendu (2014) 11 NWLR (Pt. 1419) 444; and NBC Plc V Ubani (2014) 4 NWLR (Pt. 1398) 421.
It is in the light of these sound and settled principles of law enunciated and reiterated in these
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decisions and more that I have examined the application of the Appellant/Plaintiff. It is evident that the said application complies with the applicable Rules of the High Court and the principles for amendment in that it seeks to streamline the dispute between the parties in respect of the disputed land and to bring the proper parties in the dispute before the Court. Indeed, the application was made at the onset of the case on trial de novo and so the Defendants (now Respondents) are still at liberty to file their pleadings in response, before hearing in the suit commences on its merit. Therefore, they will not be prejudiced or overreached by a grant of the application. For these reasons, the application has merit and is granted as prayed.
In the final result, the refusal and dismissal of the application for the amendment of the Statement of claim and the substitution of the 2nd Defendant by the lower Court was both baseless and unwarranted, the reasons for same having been based on extraneous matters raised suo motu by the trial Court which decided same without inviting the parties to address it on same.
Consequently, based on all the
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above, the Appeal has merit. It succeeds and is allowed.
Accordingly, I set aside the Ruling of the High Court of Justice, Gombe State in Suit No. GM/94/2017 delivered on March 20, 2018 by Ibrahim Mohammed, J.
I hereby remit the suit to the Hon. Chief Judge of the High Court of Justice Gombe State for re-assignment to a Judge of the High Court, other than Ibrahim Mohammed, J., for accelerated hearing of the substantive suit.
UZO IFEYINWA NDUKWE-ANYANWU J.C.A.: I read in draft the judgment just delivered by my learned brother SANKEY JCA. I agree with his reasoning and final conclusions. This appeal succeeds and it is allowed.
I abide by all the consequential orders contained in the lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
The judgment is no doubt, a meticulous consideration of the germane issues in the appeal. I have no reason to disagree with any of the conclusions reached therein.
A few comments will suffice to reinforce my
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adoption of the conclusions on the issues as aforesaid.
In regard to the objection to the competence of the appeal, the decision appealed against even though not on the merits of the case was a final decision and fall within the purview of Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and therefore required no prior leave to be filed. The objection therefore lacks substance and rightly dismissed in the lead judgment. As regards the main appeal, the reasons for refusing the amendment sought are not founded in fact and law. This was admirably considered in detail by his Lordship in the lead Judgment. There is nothing more that I can add here that will prove useful.
The appeal is therefore meritorious and is hereby allowed. I abide by the consequential orders made in the lead Judgment.
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Appearances:
N. Onyekwere Esq., with him, L.E. Ojile Esq. For Appellant(s)
I. Yerima Esq. – for the 1st Respondent
Jacob Jonah Lah Esq., State Counsel, Gombe State Ministry of Justice – for the 2nd Respondent For Respondent(s)
