AMADI & ORS v. OGOLOMA & ORS (2022)

AMADI & ORS v. OGOLOMA & ORS

(2022)LCN/16203(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, May 12, 2022

CA/PH/44/2011

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

1. ELDER LUCKY AMADI 2. ELDER NYEMAHAME NNA OTUONYE 3. MR. PROMISE OGOLOMA 4. MR. OGUTUM AMADI 5. MR. WORGU AMADI 6. ELDER SAMUEL CHUKWU For Themselves And As Representing The Reconstituted Oro-Owo Community Union. APPELANT(S)

And

MR. OLUCHI OGOLOMA 2. CHIEF DOGOOD CHINDA 3. CHIEF GODFREY OTUONYE 4. ELDER SUNDAY NLERUM 5. ELDER JACKSON NSIRIM For Themselves And As Representing The Executives Of And Members Of The Oro-Owo Community Union And The Oro-Owo Community, Rumueme. RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY SHOULD BE CONSISTENT IN STATING HIS CASE AND PROVING IT

It is in my respectful view, not only treacherous, perhaps also an unfair or dignified practice for the Appellants to say one thing at trial, and turn around upon appeal to take a completely different position, and this Court will not allow such inconsistencies.
The rather immortal words of Oputa JSC of blessed memory in AJIDE V. KELANI (1985) 3 NWLR(PT 12) 248 at 269 ring somewhat eternal echoes when this great jurist of our country posited thus:-
“A party should be consistent in stating his case and consistent in proving it… Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present defendant/appellant.”
See also the decision in PACERS MULTI-DYNAMICS LTD V. THE M.V. DANCING SISTER & ANOR (2012) 4 NWLR (pt 1289) 169 AT 191 where the Supreme Court held that;
“A party should be consistent in stating its case and also consistent in proving it. He will not be allowed to take one stance in the trial Court and another stance on appeal such shifty attitude must be condemned in strong terms. For the streams of justice to remain pure counsel must at all times be consistent in the presentation of his case.”
See also the decisions in ONYKWELU v. ELF PETROLEUM NIGERIA LTD (2009) 5 NWLR 181 AT 205, ABEKE v. ODUNSI & ANOR (2013) LPELR-26640 (SC) and INTERCONTINENTAL BANK v. BRIFINA LTD (2012) 13 NWLR (PT 1316) 1.
This Court will not suffer such king-sized inconsistencies on the part of the Appellants, but often appreciates and commends counsel who acts as true ministers in the temple of justice by being so forthright in their presentations in this Court so as to lessen the burden of determining appeals in order to arrive at just decisions. PER KOLAWOLE, J.C.A.

WHETHER OR NOT A REPRESENTATIVE ACTION CAN BE DEFEATED WHERE THERE IS NO PRIOR LEAVE OF THE COURT GRANTED TO SUE IN A REPRESENTATIVE CAPACITY

This Court will not upset a Judgment of a lower Court merely on a bare procedural objection of failure to obtain approval of the Court, to institute or defend the action in a representative capacity, especially where from the pleadings and evidence on the record before the lower Court, it is apparent that there is in fact a representative capacity and the case is fought throughout in that capacity. See WIRI v. WUCHE (1980) 1-2 SC 1, AFOLABI & ORS v. ADEKUNLE (1983) 8 S.C 98.
My noble Lords, there is a sea of abundant authorities to safely rely on in making this firm proposition of our adjectival law.
The pronouncement of this Court on this issue of representative capacity in the case of IFEKWE & ORS v. MADU (2000) LPELR-6878(CA), is very instructive, where it was thus held;
“…it is well settled that a representative action cannot be defeated merely because no prior leave of the Court was granted to sue in a representative capacity. Support for this proposition can be found in the case of JOSEPH AFOLABI & ORS V. JOHN ADEKUNLE & ANOR (1983) 8 S.C. 98, (1983) 2 SCNLR 141 where the Supreme Court, per Obaseki J.S.C. stated the law thus:- “…once pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity even if amendment to reflect that capacity had not been applied for and obtained, the trial Court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained. …Failure to obtain leave of the Court to sue in a representative capacity does not vitiate the validity of the action.”
Also, the apex Court in its decision in MOZIE & ORS v. MBAMALU & ORS (2006) LPELR-1922(SC), it was held that:
“Even where the leave was not sought or granted, a Court may see the case as a representative action if satisfied that the action in its nature was fought by the parties in representative capacities.”
See also the decisions in JEREMIAH NSIMA V. OLE NNAJI & ORS (1961) ALL NLR. 441, BULAI & ANOR V. OMOYAJOWO (1968) NMLR 160 AND AFOLABI & ORS V. ADEKUNLE & ANOR (1983) 8 SC 98 AT PP. 102 TO 104; (1983) 2 SCNLR 141; OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 589 on the same judicial proposition. PER KOLAWOLE, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS MADE BY THE TRIAL COURT

Where the inferences drawn by a trial Court are not far-fetched, and are not unreasonable and are connected to the evidence led by the parties, an appellate Court has no business interfering therewith. See the decisions in ELIKE VS NWAKWOALA (1984) 1 ALL NLR 505, NNADOZIE VS MBAGWU (2008) 3 NWLR (PT 1074) 363 AT 387. Also, in its recent decision in EROMOSELE VS FEDERAL REPUBLIC OF NIGERIA (2018) LPELR 43851(SC), the Supreme Court made the point thus: “In the course of evaluation of evidence, a Court of law is entitled to make deductions from the evidence before the Court which deduction may result in conclusions based on proper appraisal of that evidence. Where deductions are based on the evidence before the trial Court by the lower Court this Court has no reasons to interfere with such deductions.”

Furthermore, on the perversity or otherwise of the Judgment of the lower Court, it is the law that:
“When a trial Court fails to rely on the evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. See the decisions in the cases of BABALOLA v. STATE (2021) LPELR-53997(CA), JOHN BHOY INT. LTD VS. AEPB (2013) 8 NWLR PT. 1357 P. 625 at 640;” PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Honourable Justice S.C. AMADI of the High Court of Rivers State, delivered on 20th November, 2009.

On 29th June, 2000, the Respondents who were the Claimants at the trial Court (hereinafter referred to as the Respondents), had through their Writ of Summons claimed against the Appellants/Defendants (hereinafter the Appellants) for themselves and as representing the Executive and members of the Oro-Owo Community of Rumueme, the following reliefs:
1. A declaration that the Executive Committee constituted from time to time by the Claimants is the constitutionally recognized, valid and legitimate Executive for the Oro-Owo Community Union.
2. A declaration that the action of the defendants in purporting to have dissolved the executive of the Oro-Owo Community Union and to have become the new executive is unconstitutional, unwarranted, invalid and void.
3. An order of perpetual injunction restraining the defendants, their servants, agents, and or privies from continuing to act or purporting to act as the executive of the Oro-Owo Community Union and or engage in any processes to dissolve the executive led by Mr. Oluchi Ogoloma save by the dictates and provisions of the written constitution of the Oro-Owo Community Union.
4. A declaration that the Oro-Owo Community Union headed and directed by the Claimants, to the exclusion of anybody or group of persons is the authentic body that heads and directs the affairs the Oro-Owo Community.
5. The sum of N500,000.00 (Five Hundred Thousand Naira) being and representing special and general damages occasioned by the defendants’ unconstitutional actions.

The Appellants upon being served with the originating processes, ultimately filed an Amended Statement of Defence and counter-claim on 19th January, 2008.

On 4th June, 2008, the Respondents filed an “Amended Reply to Statement of Defence and Defence to Counter-claim.”

The Court below on 20th November, 2009 delivered its Judgement in favour of the Respondents.

It was the Appellants’ dissatisfaction with the decision of the lower Court, that caused them to appeal to this Court in order to express their grievances. The jurisdiction of this Court was invoked by the Notice of Appeal dated 20th May, 2014 and filed on 26th May, 2014. It contains eleven odd grounds of appeal with fairly detailed particulars.

In adherence with the rules of this Court, parties filed and exchanged their respective Briefs of Argument. The Appellants’ Brief of Argument filed on 7th February, 2017, was settled by L.V.C. Michaels, Esq., while the Respondents’ Brief of Argument filed on 21st February, 2018, and deemed properly filed on 17th October, 2018 was settled by O.H. Amabo, Esq. The Appellants’ Reply Brief was filed on 6th November, 2018. The learned Counsel to both the Appellants’ and the Respondents’ adopted their respective briefs as their arguments in this appeal on 16th of February, 2022.

In the Appellants’ Brief of Argument, the learned Appellants’ Counsel raised three salient issues for the determination of this appeal and they read thus:
1. Whether the lower Court was right in entering a judgment whose effect runs counter to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the lower Court has the jurisdiction to determine the case in the manner it was instituted and canvassed having regard to the facts and circumstances thereof.
3. Whether the decision of the lower Court is perverse having regard to the facts and circumstances of the case.

The Respondents’ Counsel on own his part, formulated two issues for determination to wit;
1. Whether the trial Court has the jurisdiction to entertain and determine the suit under the provision of Constitution of the Federal Republic of Nigeria 1999.
2. Whether the judgment of the learned trial Judge delivered on the 20th of November, 2009 was right in view of the totality of evidence before the Court.

SUBMISSIONS OF COUNSEL
On the first issue, learned Counsel for the Appellants submitted that the rights sought to be enforced by the Respondents affirmed by the lower Court clearly excluded other persons who are indigenes of the community by circumstances of their sex and birth thus infringing their fundamental rights enshrined inter alia in Section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999.

He urged upon this Court to find and hold that having held that the Oro-Owo Community Union headed and directed by the Respondents to the exclusion of any body or group of persons is the authentic body that heads and directs the affairs of the Oro-Owo Community, the decision of the learned trial Judge, it was argued, is contrary to the provisions of the 1999 constitution and it is to that extent void and of no effect.

He also urged this Court to hold that the Respondents’ Oro-Owo Community Union Constitution is inconsistent with the provisions of Section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 and accordingly void and unenforceable to the extent of its inconsistency.

The Appellants’ counsel placed strong reliance on the decisions in ADESANYA v. PRESIDENT (1981) 5 SC 112 at 137; ARIORI v. ELEMO (1983) 1 SC 13 at 66, and humbly prayed this Court to determine this issue in the negative in favour of the Appellants, and to allow the appeal and set aside the Judgment of the lower Court.

On the second issue raised and argued by the learned Counsel to the Appellants, he submitted that the Respondents did not seek did not seek the leave of the lower Court to prosecute the suit in representative capacity, and this was fatal to their case, as the reliefs sought were not only exclusionary but personal and not reflective of the rights of the members and indigenes of the Oro-Owo Community.

It was argued that the Respondents’ failure to obtain leave from the lower Court to institute the proceedings against the Appellants in representative capacity, makes it impossible to enforce the Judgment against other members of the purported reconstituted Oro-Owo Community Union nor other members of the community who are neither members of the Oro-Owo Community Union nor the purported reconstituted Oro-Owo Community Union and who were not actually before the Court and were not named as parties in the proceedings before the lower Court. Appellants’ counsel cited the decisions in the cases of OBIODE v. OREWERE (1982) 12 SC 170 at 175, OKEAHIALAM v. NWAMARA (2003) 7 SC 145.

He humbly prayed this Court to determine this issue in favour of the Appellants and against the Respondents and allow the appeal.

In arguing issue three, the Appellants’ learned Counsel, submitted that the inferences made by the lower Court are so manifestly unsupportable that the judgment of the lower Court founded thereon cannot and should not stand.

It was urged on us, that the absence of proper evaluation of evidence and failure to draw appropriate inferences from them, can also amount to perversity where the inference is so clear that no reasonable Tribunal would fail to draw them or where the inferences drawn by the Judge does not follow from the evidence or the conclusions that should reasonably follow from the findings of fact. In reliance he cited OKHUAROBO v. AIGBE (2002) 9 NWLR (PT 771) 29 at 85 PARAGRAPH E.

The Appellants’ counsel went further to add that the Judgment of the High Court of Rivers State in EXHIBIT J clearly established two types of estoppel against the Respondents to wit; ESTOPPEL PER REM JUDICATAM and ISSUE ESTOPPEL.

He argued that the Respondents had no locus to file the suit claiming rights to governance of a traditional community subject to Traditional authority.

It was further submitted by the Appellants’ counsel that EXHIBIT J, constituted judicial notice of the status of the Respondents as non-indigenes of Oro-Owo community vide the provisions of Section 122(1) & (2)(l) and (m) of the Evidence Act, 2011. In his efforts at solidifying this proposition, the Appellants’ counsel cited again the decision in FADIORA v. GBADEBO (1978) 3 SC (Reprint) 149 at 155-156 line 12.

Appellants’ learned Counsel further argued that there was nothing to show that the communities, governed by native law and custom especially the Rumueme kingdom to which both parties belong, have or are bound by written constitutions, while further submitting that documents are unknown in customary law especially in proof of same. Our attention was invited to the decision in ARISA v. CHAKA (2001) 14 NWLR (PT 734) 612 at 616.

The Appellants’ learned counsel submitted even further, that there is nothing to show that the traditional history and authority of Rumueme kingdom to which Oro-Owo community belongs and is subject to, contains and/or recognizes the Oro-Owo community Union and its constitution as constituting the government of the entire Oro-Owo community.

He finally submitted that the judgment of the lower Court is perverse and manifestly unsupportable having regard to the facts and circumstances of the case.

He urged upon us to find and hold in favour of the Appellants and allow this appeal by invoking the provision of Section 16 of the Court of Appeal Act.

RESPONDENT’S COUNSEL SUBMISSIONS
The Respondents’ counsel having himself raised two issues in reply to the arguments of the Appellants’ Counsel, learned Respondents’ Counsel went ahead to argue them separately.

On issue 1, learned Respondent’s Counsel submitted that the trial Court properly determined the suit and arrived at a just conclusion and judgment within its constitutional power, thus not subject to any contrary decision.

He further argued that issue 1 argued by the Appellants, particularly paragraphs 4.3, 4.6, 4.7, 4.8 and 4.11 in their brief should be disallowed by this Court as it is trite law that an appeal is only a challenge against the judgment of a trial Court and is never to be predicated on extraneous issues or what the Court has not decided in its Judgment.

He added that the Appellants are not challenging the Judgment but what the Court did not decide on, thus this Court should not entertain the issue so raised by learned Counsel. In reliance, he cited the decision in OLORUNTOBA-OJU v. ABDUL-RAHEEM (2009) 39 NSCOR SC 105.

The Respondents’ counsel further submitted that the trial Court can only make pronouncement on Section 42(1) and (2) of the 1999 Constitution in its judgment or interpret the said Exhibit C in that regard except and only if such issues were presented before the Court for determination.

He argued and contended that the lower Court can not be wrong for not hearing or determining issues in relation to the provisions of Section 42(1) and (2) of the 1999 Constitution, the notice or existence of which was not drawn to its attention for judicial consideration and determination by the Appellants. He cited the decision in the case of AGU v. ODOFIN (1992) 3 SCNJ 161 at 173 in support of his proposition.

The Respondents’ learned counsel further submitted, that the jurisdiction of the Court cannot be activated where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim and is not the main or principal claim in the application.

Our attention was invited to the provision of Section 6(6) (b) of the 1999 Constitution, which encompasses the full extent of the judicial powers vested in the Courts by the Constitution, submitting that the purport of the section is that Courts must operate within the ambit of those judicial powers, and in doing this they can only take cognizance of justiciable actions properly brought before them and nothing more. In further reliance, the Respondents’ counsel cited the decisions in DONGTOE v. CIVIL SERVICE COMMISSION PLATEAU STATE 15 NWLR (PT. 842) 113 at 132-135; UNOKAN ENT. LTD v. OMUVWIE (2005) 1 NWLR (PT. 907) 293.

The Respondents’ counsel submitted further that the Appellants, having denied in their pleadings and claimed that underage children and women also participate in the Oro-Owo community Union activities, cannot now be allowed to blow hot and cold in this appeal.

The Respondents’ counsel cited the decisions in SALUBI v. NWARIAKU (2003) 7 NWLR (PT. 819) 426 (2003) 2 S.C 161.

It was the further contended by the learned Respondents’ Counsel, that the lower Court cannot determine the constitutionality of Exhibit C in relation to Section 42(1) and (2) of the 1999 Constitution in its judgment when other members, underage and women in Oro-Owo community did not file any action that the said Exhibit C violates their constitutional rights. He opined that it is for this reason that the decision in the case of ADESANYA v. PRESIDENT (supra) as cited by the Appellants, is inapplicable.

The learned Respondents’ Counsel, further argued that the complainant must show that the act of which he complains affects rights and obligation peculiar or personal to him, and that he must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury.

The Respondents’ counsel argued that the interpretation of the provision in Section 6(6) (b) of the 1999 Constitution is that a person who files a suit in Court must be a proper person, natural or legal and the action must relate to him specifically and exceptionally without prejudice to a person being rightly in representative capacity.

He further observed and expressed the view that there is no evidence before the lower Court to show that the underage, women, and members of the Oro-Owo community did not consent to the drafted Constitution, Exhibit C by their representative family heads or whether their rights were indeed violated or not.

It was argued rather vehemently that the submissions of the Appellants on this issue, are purely new issues which were never raised or determined at the lower Court and did not form the bases for the grant or refusal of the reliefs sought by the Respondents in the judgment of the Court, and where they are to be raised on appeal as fresh issues, leave must first be sought and obtained before they can be competently argued on appeal. In reliance on this principle, the Respondents’ counsel cited the decisions in UKPONG v. COMMISSIONER OF FINANCE (2006) 19 NWLR (PT. 1013) 187 at 221, OLALOMI IND. LTD. V. N. I. D. B (2009) 39 N.S.C.Q.R at 240.

It was further argued that this Court cannot allow the Appellants to raise a question which was not raised, tried and considered in the Court below unless leave is first sought and the question involves substantial points of law, whether substantive or procedural and it is clear that no further evidence will be required to be adduced which will affect the decision on them.

The Respondents’ counsel urged us to disregard paragraphs 4.3, 4.6, 4.7, 4.8 and 4.11 of the Appellants’ brief of argument on issue 1 and cited in support of his submission the decision in BANKOLE v. PELU (1991) 8 NWLR (PT. 211) 523 SC.

He urged upon this Court to resolve issue 1 of the Appellants’ brief in favour of the Respondents.

In his response to Appellants’ Counsel’s argument on their issue two which similarly bother on jurisdiction, the Respondents’ counsel submitted that the action was instituted at the lower Court both in personal and representative capacity for themselves and as representing the executive members and members of the Oro-Owo community Union as shown in the writ of summons and further amended statement of claim.

He rehashed the finding of the lower Court in its judgment, to the effect that the learned Counsel for the Appellants did not bother to ask questions challenging the capacity in which the Respondents instituted the suit against the Appellants.

It was further submitted that the Respondents need not seek the leave of Court to represent the members of Oro-Owo community Union and need not specifically represent the Oro-Owo community in the suit in a representative capacity when there exists overwhelming evidence that the Respondents are acting for and behalf of the community as shown in their pleadings.

He added that even where there was no authorization and or leave of Court for the Respondents to sue in a representative capacity, where the pleadings and evidence conclusively show a representative capacity and the case is fought throughout in that capacity, the trial Court can justifiably enter judgment for or against the Respondents in that capacity. In reliance on this submission, the learned Respondents’ counsel cited the decisions in AFOLABI & ORS v. ADEKUNLE (1983) 8 S.C 98, OTAPO v. SUNMONU (1987) 2 NWLR 587; WIRI v. WUCHE (1980) 1-2 SC 1.

In further relying on the decision in the case of OYEWOLE v. LASISI (2000) 14 NWLR (PT. 687) 342, he submitted that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous.

He further submitted that failure to obtain the leave of Court to sue in a representative capacity is not fatal as to vitiate the proceedings.

The Respondents’ counsel urged us to hold in favour of the judgment of the lower Court’s jurisdiction to entertain the suit.

On his second issue, the learned Respondent’s Counsel argued that the vital primary duty carried out by the trial Judge was not erroneous or perverse but that it flowed directly from the established fact and evidence and Exhibits A-J and also from cross-examination of witnesses which the Court thoroughly resolved and does not require the interference of this Court.

He further submitted, that the trial Court clearly stated the evidence it believed and the reason for same and cannot use anything outside the evidence presented.

It was argued that the judgment of the lower Court did not fall into the category of error or miscarriage of justice as shown herein, rather, the evidence adduced by the Respondents, support the findings of the trial Court, thus the Judgment is not against the weight of evidence, hence the appeal must fail. The Respondents’ learned counsel relied on the decisions in ANYAOKE v. ADI (1986) 3 NWLR (PT. 31) 731, EZEMBA v. IBENEME (2004) ALL FWLR (PT. 223) 1786. In summary, the learned counsel submitted that the Respondents have been able to establish that the decision of the trial Court was correctly entered, and the appeal is lacking in merit and cannot be sustained in law and he therefore urged upon this Court to dismiss this appeal and uphold the decision of the lower Court.

In his reply brief, Appellants’ Counsel submitted that not only are Courts imputed with judicial notice of the provisions of the 1999 Constitution but are not circumscribed by any rule of Court or law from applying the provisions of the Constitution to test or validate any situation or law as it pertains to this case.

The Appellants’ counsel submitted that fundamental rights need not be in issue before any Court can determine whether from the facts and circumstances of the case before it the provisions thereof have been infringed.

It was further submitted and argued that whether the alleged breach of fundamental right is ancillary or incidental to the substantive claim, any superior Court of record has the power and indeed the duty to consider it and examine it. The Appellants’ counsel submitted that according to the provisions of Section 241 (1) (a) of the 1999 Constitution (As Amended), appeals from the trial Court to the Court of Appeal from final decisions sitting at first instance are of right and do not require leave. He also added that, this is equally applicable to decisions in civil proceedings on questions as to the interpretation of the Constitution.

Again the Appellants’ counsel submitted, that decisions in civil proceedings on questions as to whether any of the provisions of Chapter 4 of the Constitution (including Section 42 therein) has been, is being or is likely to be contravened in relation to any person (including the Appellants) are appealable as of right without leave and cited and relied on the provision of Section 241 (1) (d) of the 1999 Constitution (As Amended) in support of his proposition.

BRIEF FACTS OF THE CASE
My noble Lords, before I proceed to the resolution of the issues for determination, let me will give a brief summary of the facts of this case as I understand it from the materials in the Record of Appeal.

On the part of the Respondents, the Respondents filed the suit “for themselves and as representing the executive and members of Oro-Owo Community of Rumueme” against the Appellants for themselves and representing the purported Reconstituted Oro-Owo Community Union as stated in the Writ of Summons and further amended statement of claim, against the publication in Exhibit A purporting to have dissolved the executives of the Oro-Owo Community and set up a reconstituted Oro-Owo Community Union of Oro-Owo Community without the power to do so based on their constitution in Exhibits C and C5.

The Appellants in their defence to the suit alleged that the Respondents were not members of Oro-Owo community as the said union is a mere social club that extended the scope of its membership to non-indigenes of Oro-Owo community, and were carrying out activities contrary to the interests of the Oro-Owo community and also that the chiefs, elders and Owhor holders have the right to dissolve the Respondents’ union hence Exhibit A was published, whereupon they counter-claimed against the Respondents.

At the end of the trial, and the adoption of final written addresses by counsel, the learned trial Judge delivered his judgment in favour of the Respondents.

Dissatisfied with the judgment, the Appellants filed their 11 grounds notice of appeal, thus activating the jurisdiction of this Court to entertain this appeal in order to review the correctness or otherwise of the decision.

RESOLUTION OF THE ISSUES
Having carefully considered the eleven grounds of appeal contained in the notice of appeal filed by the Appellants, the issues formulated for determination of the present appeal by counsel to both parties respectively, the arguments canvassed thereon by the respective parties and the Judgment of the lower Court, I am of the firm view that the three issues raised by the Appellants need to be resolved in the determination of this appeal;
They are reproduced thus:
1. Whether the lower Court was right in entering a judgment whose effect runs counter to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the lower Court has the jurisdiction to determine the case in the manner it was instituted and canvassed having regard to the facts and circumstances thereof.
3. Whether the decision of the lower Court is perverse having regard to the facts and circumstances of the case.

On the first issue raised by the Appellant on whether the lower Court’s judgment ran foul of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the facts speak for themselves.

The learned Appellants’ Counsel made a heavy weather of the provisions of Section 42 of the 1999 Constitution, and insisted that the entire case of the Respondents at trial was in direct breach of the above section, which in his view, the constitution of the Oro-Owo Community union was highly discriminatory against women and children.

He argued vehemently in his brief, that the purported infraction of Section 42 of the 1999 Constitution had invariably decloaked the lower Court of the requisite jurisdiction to entertain and determine the matter before it.

It is true that the issue of jurisdiction can be raised at any time from the commencement of the case up to the Supreme Court, see the decision in the case of ADERIBIGBE & ANOR v. ABIDOYE (2009) LPELR-140(SC). This means that even though the Appellants never raised or alluded to the issue of jurisdiction in the entirety of their pleadings and or reliefs claimed, they are well within their rights to do so at any stage even at the appeal stage.

However, to determine if the issue of jurisdiction is relevant in this present appeal, a proper study of all the reliefs sought by the Respondents at trial has to be undertaken.

As it can easily be gleaned from a proper evaluation of all the reliefs of the Respondents which had earlier been reproduced as a preface to this judgment, the crux of the matter was the misunderstanding about the leadership of the Oro-Owo Community Union. Relief one to three which have been earlier reproduced, give credence to this fact. Only relief four touches on the governance of Oro-Owo Community, and it reads as follows:
4. A declaration that the Oro-Owo Community Union headed and directed by the Claimants, to the exclusion of anybody or group of persons is the authentic body that heads and directs the affairs the Oro-Owo Community.

The Appellants at trial in their Statement of Defence and Counter Claim contended, that the Oro-Owo Community was not governed by the Oro-Owo Community Union, but rather the governance of Oro-Owo Community rests squarely on the shoulders of the Chief, Owhor holders and the Elders of the Oro-Owo Community.

That notwithstanding, it is the unchallenged finding of the lower Court, that the Chief, owhor holders and the Elders of the Oro-Owo Community who had governed the entire Oro-Owo Community gave their approval to the Oro-Owo Community Union to draft their constitution which is now binding on all of Oro-Owo Community.

This delegated authority given to the Oro-Owo Community Union was never challenged by any of the Appellants at any stage in the trial.

Therefore, it is imperative, perhaps pertinent to ask the following questions:
i. How has the constitution of Oro-Owo Community Union violated the fundamental rights of the underage and women?
ii. Have the underage and women been part and parcel of the governing process in Oro-Owo Community before the advent of the constitution of the Oro-Owo Community Union?
iii. How has the Constitution of the Oro-Owo Community excluded the underage and women from governance since the advent of the constitution of Oro-Owo Community Union? The Appellants have failed to show before this Court the relevant particulars to prove the direct or indirect infringement of the violation of the fundamental rights of the underage and women of Oro-Owo Community.

The Appellants have also failed to show if any section of the underage and women demographic of Oro-Owo Community, are feeling sidelined or complaining against being supposedly discriminated against in the governing process of the Oro-Owo Community. The answers to this issue are germane because from the records, the Appellants are clearly not the underage and women.

Furthermore, the Appellants have failed to satisfy this Court and show clearly that the under aged and women of Oro-Owo Community did not consent to the drafting of the constitution of the Oro-Owo Community Union through the heads or representatives of their respective families.

Having been unable to satisfy this Court with respect to the above, it will be improper for the Appellants’ Counsel to submit that Exhibit C, the constitution of the Oro-Owo Community Union is in direct contravention of the provision of Section 42 of the 1999 Constitution, 1999 As Amended.

Traditional African societies have often employed from time immemorial a very structured system of governance.

Representative governments are nothing alien to traditional African societies, as the process of governance anywhere in the world is not and cannot be an all-comers affair.
All families in a community find their expression in the overall decision-making process in some African communities through the head of the family, who depending on the particular structure adopted, can be heard in the village council.
For the sake of order, reasonability and uniformity, every single member of a community cannot be involved directly in the decision-making process of the community, and there is nothing discriminatory about having elected representatives to participate in the governance of a community. That is in fact the very essence of having legislative assemblies which Section 4 of the Constitution of the Federal Republic of Nigeria 1999 makes copious provisions for.

It is therefore very disappointing to see the Appellants try to belabor this Court with the task of evaluating the arguments in issue one bothering on jurisdiction.
The approach adopted by the Appellants in this appeal has all the trappings, with due respect to the learned Appellants’ counsel, of what is generally referred to as sharp practice as it seems they will stop at nothing to achieve their selfish and many a time, ignoble ends.

This Court has been able with so much efforts to see through the smoke screen that were hidden in the argument put forward by the learned Appellant’s Counsel on issue one, and will look past it in order to achieve the ends of justice which is the primary duty of this Court in the exercise of its appellate jurisdiction.

As can be seen from the records, the Appellants pleaded that Oro-Owo Community is governed by a single Chief and assisted by four traditional elders and owhor holders who hold their position for life in accordance with Ikwerre customs and traditions applicable in Rumueme kingdom.

The Appellants also claimed that the underage and women participated in the Oro-Owo community Union, terming it a mere social club.

The Appellants having been heard to claim that the underage and women participated in the Oro-Owo community Union, have suddenly shifted from this position to something totally different and unrelated, and assumed the role of the “champion” of their rights.

For the Appellants to argue that Exhibit C is contrary to and violates the provision of Section 42 of the Constitution of the Federal Republic of Nigeria 1999, will in a direct effect also mean that the custom and tradition of the Ikwerre people concerning governance which is applicable to Rumueme kingdom, which custom the Appellants at trial so vehemently fought to uphold is also impliedly contrary to the provision of Section 42 of the Constitution of the Federal Republic of Nigeria 1999, as the governance of the community in fact excludes underaged and women from being a part of the council of chiefs.

It is in my respectful view, not only treacherous, perhaps also an unfair or dignified practice for the Appellants to say one thing at trial, and turn around upon appeal to take a completely different position, and this Court will not allow such inconsistencies.
The rather immortal words of Oputa JSC of blessed memory in AJIDE V. KELANI (1985) 3 NWLR(PT 12) 248 AT 269 ring somewhat eternal echoes when this great jurist of our country posited thus:-
“A party should be consistent in stating his case and consistent in proving it… Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present defendant/appellant.”
See also the decision in PACERS MULTI-DYNAMICS LTD V. THE M.V. DANCING SISTER & ANOR (2012) 4 NWLR (PT 1289) 169 AT 191 where the Supreme Court held that;
“A party should be consistent in stating its case and also consistent in proving it. He will not be allowed to take one stance in the trial Court and another stance on appeal such shifty attitude must be condemned in strong terms. For the streams of justice to remain pure counsel must at all times be consistent in the presentation of his case.”
See also the decisions in ONYKWELU v. ELF PETROLEUM NIGERIA LTD (2009) 5 NWLR 181 AT 205, ABEKE v. ODUNSI & ANOR (2013) LPELR-26640 (SC) and INTERCONTINENTAL BANK v. BRIFINA LTD (2012) 13 NWLR (PT 1316) 1.
This Court will not suffer such king-sized inconsistencies on the part of the Appellants, but often appreciates and commends counsel who acts as true ministers in the temple of justice by being so forthright in their presentations in this Court so as to lessen the burden of determining appeals in order to arrive at just decisions.

The lower Court’s judgment was not in my view, any way contrary to the extant provision of Section 42 of the Constitution of the Federal Republic of Nigeria 1999, and I so hold.

Issue one is hereby resolved in favour of the Respondents against the Appellants.

On issue two, which is closely knit to issue one, as both issues clearly bother on jurisdictional questions, the Appellants have also argued that the Respondents’ suit was improperly instituted by the Respondents because, the Respondents did not seek leave of the Court below to institute the suit in a representative capacity, that is for themselves and as representing the Executive of and members of the Oro-Owo Community Unionand the Oro-Owo Community, Rumueme, claiming further that the Respondents by so doing, have deprived the Appellants of their constitutional rights as it relates to Section 42(1) & (2) of the 1999 Constitution. Flowing from the resolution I have just reached on issue one, it is obvious that this Court will reject this argument being put forward by the Appellants in their brief.

It has already been settled and rightly so by the Court below, that the Oro-Owo Community Union is the legitimate governing body or agency of the Oro-Owo Community, hence the Respondents who are executives of the Oro-Owo Community Union will be acting in line with their properly delegated authority to institute the action as they did in a representative capacity at the lower Court except perhaps, the Union was already registered to acquire its own independent legal personality as a corporate body.

Contrary to arguments of the learned Appellants’ Counsel, that the rights sought by the Respondents were personal, and not reflective of the rights of the members and indigenes of the Oro-Owo Community, the reliefs sought by the Respondents as have now been settled and were beneficial not only to themselves by virtue of their membership of the Oro-Owo Community Union, but also to the entire members whose interest the Respondents so vehemently fought to protect.

Nothing in the law says that the Respondents must obtain a special leave of Court to represent in a judicial action the entire Oro-Owo Community which have already empowered them to act as a governing body for the common good of the entire Oro-Owo Community before the institution of the suit.

It is impossible to divorce the Oro-Owo Community Union from the Oro-Owo Community, and to try do so will be to try to create disorder and avoidable anarchy which invariably would disturb the already well established and effective governance structure of the Oro-Owo Community only to suit the self-serving and power-driven ends of the Appellants.
This Court will not upset a Judgment of a lower Court merely on a bare procedural objection of failure to obtain approval of the Court, to institute or defend the action in a representative capacity, especially where from the pleadings and evidence on the record before the lower Court, it is apparent that there is in fact a representative capacity and the case is fought throughout in that capacity. See WIRI v. WUCHE (1980) 1-2 SC 1, AFOLABI & ORS v. ADEKUNLE (1983) 8 S.C 98.
My noble Lords, there is a sea of abundant authorities to safely rely on in making this firm proposition of our adjectival law.
The pronouncement of this Court on this issue of representative capacity in the case of IFEKWE & ORS v. MADU (2000) LPELR-6878(CA), is very instructive, where it was thus held;
“…it is well settled that a representative action cannot be defeated merely because no prior leave of the Court was granted to sue in a representative capacity. Support for this proposition can be found in the case of JOSEPH AFOLABI & ORS V. JOHN ADEKUNLE & ANOR (1983) 8 S.C. 98, (1983) 2 SCNLR 141 where the Supreme Court, per Obaseki J.S.C. stated the law thus:- “…once pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity even if amendment to reflect that capacity had not been applied for and obtained, the trial Court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained. …Failure to obtain leave of the Court to sue in a representative capacity does not vitiate the validity of the action.”
Also, the apex Court in its decision in MOZIE & ORS v. MBAMALU & ORS (2006) LPELR-1922(SC), it was held that:
“Even where the leave was not sought or granted, a Court may see the case as a representative action if satisfied that the action in its nature was fought by the parties in representative capacities.”
See also the decisions in JEREMIAH NSIMA V. OLE NNAJI & ORS (1961) ALL NLR. 441, BULAI & ANOR V. OMOYAJOWO (1968) NMLR 160 AND AFOLABI & ORS V. ADEKUNLE & ANOR (1983) 8 SC 98 AT PP. 102 TO 104; (1983) 2 SCNLR 141; OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 589 on the same judicial proposition.

From the abundance of evidence available in the records, it cannot be disputed, that the Respondents instituted the action at the lower Court in representative capacity, and properly so too.

Issue two raised and canvassed by the Appellants stands on shaky foundations and cannot succeed, and I so hold.

I hereby resolve issue two in favour of the Respondents against the Appellants.

Issue three bothers on the whether the decision of the lower Court is perverse having regard to the facts and circumstances of the case.

The Appellants in their submissions seem to be under the mistaken impression, that the learned trial Judge failed to draw the appropriate inferences from the evidence before him, and thus argued that the judgment of the Court below founded on the inferences made, cannot stand.

He further argued that the said Judgment in Exhibit J established two types of estoppel against the Respondents to wit;
ESTOPPEL PER REM JUDICATAM and ISSUE ESTOPPEL.
While it is true that where a people’s custom has received judicial notice or affirmation by a Court of superior record or coordinate jurisdiction, proof of such custom is no longer necessary, however the lower Court rightly held that Exhibit J which the Appellants so heavily relied upon to prove that the Respondents are not indigenes of the Oro-Owo community had no connection to the Respondents, this is because the evidence of CW1 in which he stated inter alia that Ogbako Rumueme Organization, the defendant in the suit pleaded was a voluntary organization, and the purported non-membership of the Respondents did not in any way challenge their status as bonafide indigenes of Oro-Owo community, remained unchallenged by the Appellants at trial as they failed to cross-examine CW1 on this very salient point.

This in effect means that the learned trial Judge was on firm ground when he held that:
“I find Exhibit J of no assistance to the defendants in disproving that the claimants are indigenes of Oro-Owo community….Still on Exhibit J, under cross-examination by the learned senior Counsel for the Claimants, DW1 stated that the parties in this suit are not parties in Exhibit J but that the names of their fathers are in Exhibit J. DW1 did not give the name of the father of any of the claimants or defendants in this suit is in Exhibit J. This Court is therefore in difficulty in knowing who in Exhibit J is the father of any of the Claimants in this case…”

The lower Court held that the Appellants at trial failed to prove the essential ingredients of estoppel per rem judicatam and issue estoppel against the Respondents, and rightly so.

This has laid to rest the arguments by the Appellants that Exhibit J established ESTOPPEL PER REM JUDICATAM and ISSUE ESTOPPEL against the Respondents. See the cases of A.G NASARAWA STATE V A.G PLATEAU STATE (2012) 10 NWLR, PT 1309, 419; YANATY PETROCHEMICAL LTD. V EFCC (2017) 12 SC PT IV, 1.

This unimpeachable finding of the lower cannot and in my view, ought not to be disturbed by this Court.

The submissions of the learned Appellants’ Counsel in paragraphs 6.7 to the effect that the lower Court failed to consider some factors prevalent in the evidence adduced, thus making the judgment perverse and incorrect will be considered below.

My noble Lords, from the analysis of undisputed evidence of CW1, it can be seen that Chief Nnana Chukwu and the heads of the four family units of Oro-Owo community, approved the drafting of a constitution for Oro-Owo community union and each family unit had a member in the committee that drafted the constitution. Again, the cross-examination of CW1 by the defendants’ Counsel failed to refute this claim.

The Respondents did not plead custom as rightly held by the lower Court, but his pleadings only sought to establish that a union was set up by the community which they tried and failed to dissolve and assume leadership as shown in Exhibit A, and this has absolutely nothing to do with customary law.

What was in issue was rightly dealt with by the lower Court when it rightly held in my view that:
“I find that Exhibits C and C5 are constitutions of Oro-Owo community and reject the evidence of DW1, that the community has no written constitution but is governed by convention.”

The case of ARISA v. CHAKA (2001) as cited by the Appellants’ Counsel is of no moment in this case, as it has been misapplied by the Appellants.

The arguments of the Appellants in the entirety of paragraph 6.7 have failed to hold water and prove that the judgment of the lower Court was perverse.

The lower Court indeed, demonstrated an astute and judicious appreciation and understanding of the facts before it and properly evaluated the entire evidence before it and consequently drew reasonable inferences flowing from the above.

Where the inferences drawn by a trial Court are not far-fetched, and are not unreasonable and are connected to the evidence led by the parties, an appellate Court has no business interfering therewith. See the decisions in ELIKE VS NWAKWOALA (1984) 1 ALL NLR 505, NNADOZIE VS MBAGWU (2008) 3 NWLR (PT 1074) 363 AT 387. Also, in its recent decision in EROMOSELE VS FEDERAL REPUBLIC OF NIGERIA (2018) LPELR 43851(SC), the Supreme Court made the point thus: “In the course of evaluation of evidence, a Court of law is entitled to make deductions from the evidence before the Court which deduction may result in conclusions based on proper appraisal of that evidence. Where deductions are based on the evidence before the trial Court by the lower Court this Court has no reasons to interfere with such deductions.”

Furthermore, on the perversity or otherwise of the Judgment of the lower Court, it is the law that:
“When a trial Court fails to rely on the evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. See the decisions in the cases of BABALOLA v. STATE (2021) LPELR-53997(CA), JOHN BHOY INT. LTD VS. AEPB (2013) 8 NWLR PT. 1357 P. 625 @ 640;”

In my view, when all is taken together, its my view that the judgment of the lower Court cannot be said to be perverse as it flows reasonably from a proper evaluation of facts and evidence before the lower Court, comprehensively considered all the relevant angles and perspectives, in order to prevent an avoidable miscarriage of justice against any of the parties.

There is therefore no way that this Court will allow itself to be used to disturb the well-considered decisions and findings of the lower Court.

Issue three has consequently been resolved in favour of the Respondents.

This appeal is hereby dismissed as it utterly lacks merit and the decision of the Rivers State High Court, in Suit No. PHC/1347/2000 delivered on the 20th November, 2009 is accordingly affirmed. I award costs of N200,000:00 in favour of the Respondents against the Appellants. The appeal is dismissed.

TANI YUSUF HASSAN, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. His Lordship has thoroughly dealt with the issues in this appeal. I have nothing useful to add. I adopt the judgment as mine, dismiss the appeal for lacking in merit and affirm the judgment of the Court below. I abide by the order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in advance the draft lead judgment delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. I endorse it as it represents my views and I adopt his reasoning and conclusion as mine.

Thus, I also hold that this appeal lacks merit and is hereby dismissed. I agree with the decision of the Rivers State High Court in Suit No. PHC/1347/2000 delivered on the 20th November, 2009 and is hereby affirmed.

I also abide by the consequential order of N200,000 awarded in favour of the Respondents against the Appellants.