HON. JUSTICE GARBA ABDULLAHI v. THE GOVERNOR OF KANO STATE & ORS
(2011)LCN/4638(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of June, 2011
CA/K/185/2006 (R)
RATIO
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTIONS 86 AND 87 OF THE EVIDENCE ACT 1990 AS TO THE CONTENTS OF AN AFFIDAVIT
The relevant provisions to be considered in this application are Sections 86 and 87 of the Evidence Act 1990 which reads as follows: “86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. 87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.” A combined reading of the provisions of Sections 86 and 87 of the Evidence Act, supra, will reveal that a person who swears or deposes to an affidavit is called “the witness” in section 86 of the Act supra. The witness must depose to only Statement of facts and circumstances within his personal knowledge, or, from information derived from other sources but which he believes to be true. But the affidavit should not contain extraneous matter example by way of objection, prayer, legal argument or conclusion. PER JOSEPH TINE TUR, J.C.A.
AFFIDAVIT: WHAT AN AFFIDAVIT ENTAILS
The evidence in the affidavit remains unchallenged. Even if I should acquiesce to the objection and strikeout these subparagraphs of paragraph 3 of the affidavit what remains as evidence in the rest of the paragraphs is sufficient to ground this application. This is because the purpose of a witness deposing to an affidavit is to provide oral and/or documentary evidence to support the application. An affidavit is therefore to contain oral and possibly documentary exhibits which shall be served on the respondents- Documents referred to in an affidavit form part of the motion and are usually read together to determine the issues in controversy. See Re Hichliffe (1897) Ch. 117; South Eastern States Newspaper corporation & or v. Anwara (1971) 9-115 SC 55; Nwosu v Imo State Environmental Sanitation e.t.c ors (1990) 4 SCNJ 97 at 115; Banque De L’ Afrique Occidental v. Alhaji Baba Sharfardi & ors (1963) NNLR 21; Bamaiyi v. The State (2001) 4 SC (pt 1) 18 at 29, 32-33. PER JOSEPH TINE TUR, J.C.A.
DUTY OF COURT: DUTY OF COURT NOT TO MAKE PRONOUNCEMENTS ON ISSUES THAT WILL AFFECT OR PREJUDICE THE MERITS OF THE APPEAL AT THE SUBSTANTIVE STAGE
My humble view is that these are matters to be determined when hearing the substantive appeal. The Court is not to make pronouncements at this stage that will affect or prejudice the merits of the appeal, more so that the Appeal Court may or may not be called upon to interprete and apply the contents of Exhibit “K” or any other document relevant to the determination of the substantive appeal. See Motune v. Gambo (1983) NCLR 237 at 242; Iweka v. SCOA (200) 3 SC 21 at 24-25 and University Press Ltd v. I.K Martins Ltd (2000) FWLR 722 at 732. PER JOSEPH TINE TUR, J.C.A.
LEAVE TO AMEND: DUTY OF AN APPLICANT SEEKING FOR LEAVE TO AMEND A COURT PROCEEDING
In Solanke v. Somefun (197 4) All NLR (pt 1) 526 the Supreme Court held at page 530 per Sowemimo JSC., (as he then was) that: “…As the learned trial judge quite rightly said, it is in our view, the duty of any party applying for leave to amend any proceedings to bring such an amendment within the provisions of Order 33. In the lower Court, the counsel who appeared for the appellant drew attention to three paragraphs of the Statement of Claim as being the same as those in the fresh statement of claim sought to be filed, no indication was given as to what the other paragraphs in the new amended statement of claim were intended or expected to cure in the original one. Rules of Court are meant to be complied with and therefore any part (sic) or counsel seeking the discretionary power of a judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported if counsel fail to discharge their duties in that respect, it is but fair and right that the Court should refuse to exercise its discretionary power…” An applicant has to show the error or defect in the statement of claim that an amendment, if granted will cure in the original one; likewise a statement of defence. This includes other processes of the court. However, in Falobi v. Falobi (1979) 1 NMLR 169 the issue was whether the High court could make an Order under the Infants Law notwithstanding that the application was made under another statute not applicable from the facts established before the High Court. It was in the light of the foregoing that Fatayi-Williams JSC (as he then was) held at page 177 that: “…In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust. Moreover, the objection to the application of the provisions of section 12 of the Infants Law in the particular circumstances of the case in hand, while it appears to be correct, is of a purely technical nature, and the Western State Court of Appeal should not have refused to do substantial justice between the parties upon a pure technicality. (See G.B. Ollivant v. Vanderpuye (1935) 2 WACA 369, 370.)…” The principles of law and equity enunciated in Falobi’s case supra presupposes that there exists a remedy in a particular statute, rule, the common law or equity but a counsel or a party brought the application under a wrong statute, rule, common law or equity. In that case the remedy or relief ought to be granted under the proper statute, rule, common or equity. It will be unjust to deny the applicant the relief or remedy. But there should be put before the Court facts or materials supporting the grant of that relief or remedy. However, if there is no statute, rule, common law, or equity the Court, particularly one created by statute or law, cannot grant any. PER JOSEPH TINE TUR, J.C.A.
JUSTICES:
THERSA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
HON. JUSTICE GARBA ABDULLAHI – Appellant(s)
AND
1. THE GOVERNOR OF KANO STATE
2. ATTORNEY GENERAL OF KANO STATE
3. JUDICIAL SERVICE COMMISSION OF KANO STATE
4. NATIONAL JUDICIAL COUNCIL – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): Honourable Justice Garba Abdullahi (the applicant/appellant) was appointed and sworn in as a Judge of the High Court of Justice, Kano State in March 1993. Sometimes in the year 2001 one Aminu Baba Nabegu alleged that his Lordship collected some money from him to discharge his judicial functions.
His Lordship was tried by the State before a High Court in Kano but was discharged and acquitted. The State appealed to the Court of Appeal, Kaduna Division. The appeal is still pending. Meanwhile, on 31st May 2004 His Lordship was served with a dismissal letter by the 1st-3rd Respondents acting on the recommendations of the National Judicial Council (4th Respondent). Being aggrieved His Lordship instituted an action in the Federal High Court Kano which was subsequently transferred to the High Court of Kano State. Pleadings were filed and exchanged. Upon hearing the parties coupled with the addresses of learned counsel Honourable Justice Abdu Aboki of the High Court of Justice Kano dismissed the suit on 13/2/2006. On 22/2/2006 learned counsel to His Lordship in person of M.N. Duru Esq. lodged an appeal against the decision of the learned trial Judge to this Court. With leave of this Court the Notice of Appeal was amended and filed on 7/12/2006. Appellant also had time extended on 15/3/2007 and filed a Brief of Argument the same day. On the 9/6/2009 the appellant brought an application in this Court supported by affidavit and documentary exhibits praying for the following reliefs:
“1. Leave of this honourable Court to further amend the appellant’s statement of claim by adding one new paragraph in the manner detailed in the schedule to this application and the proposed amended statement of claim annexed hereto.
SCHEDULE OF AMENDMENT
Adding a new paragraph 20a in the following manners-
20(a) The plaintiff avers that the deliberations of the 4th defendant in its meeting held on 12th and 13th January, 2004, it’s findings and recommendations as they concern the issue of disciplinary action on the plaintiff is ultra vires paragraph 20(i) of the 3rd Schedule of the Constitution of the Federal Republic of Nigeria 1999 and was therefore null and void; in that contrary to the said provision, 3 private legal practitioners to wit: KEHINDE SOFOLA SAN, A. N. ANYAMENE SAN and OKPOKO SAN sat in council during the said deliberations.
2. Leave of this Honouroble Court to raise and argue for the first time before this Court the issue of the breach of paragraph 20(1) of the 3rd schedule of the constitution of the Federal Republic of Nigeria, 1999.
3. Leave of this honourable Court to further amend the appellants’ Notice of Appeal by adding one new ground of appeal in the manner detailed in the schedule to this application and the proposed amended Notice of Appeal.
SCHEDULE OF THE AMENDMENT
By adding two additional grounds of appeal as ground 14 and 15 to read thus:
P. GROUND 14
The learned trial Judge erred in law which error occasioned a miscarriage of justice when he did not consider and/or advert his mind to the unconstitutionality of the meeting of the 4th defendant of January, 2004 when all the evidence in that regard were before him.
PARTICULARS OF ERROR
a. Paragraph 20, schedule three of the 1999 constitution of the Federal Republic of Nigeria, prohibits sitting of private legal practitioners at the meeting of the 4th defendant whenever it is exercising disciplinary control over judges.
b. It is evident from exhibit K that three private legal practitioners to wit: KAHINDE SHOFOLA SAN, A.N. ANYAMENE SAN and OKPOKO SAN sat at the meeting of the 4th held on 13th and 14th of January, 2004.
c. The attendance of the three legal practitioners rendered the said meeting unconstitutional, and therefore null and void. Amgbare v. Slyvia 2008 All FWLR pt 419 page 576 at 597.
GROUND 15
The learned trial judge erred in law which error occasioned a miscarriage of justice when he refused to consider the issue raised by the plaintiff that the panel set up by the 4th Respondent not being a court of law lacked the requisite powers to try the appellant on matters that bother on the allegation of crime.
PARTICULARS OF ERROR
a. Allegation of demanding and accepting bribe which is contained in the letter of dismissal is an allegation of the commission of a crime. MDADT V. OKONKWO (2001) FWLR (Pt. 44) 542
b. So are the allegations of harassment and intimidation of witnesses. They each constitute allegation of the commission of crime which the panel had no jurisdiction to try. CHIBUDOM AMECHI V. INEC (2008) ALL FWLR (Pt. 409), PAGE 1
c. Counsel to the appellant raised the issue that led to this ground of appeal severally in his address, but the learned trial judge refused and or neglected to make any pronouncement on same.
4. Any order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.”
The applicant/appellant relies on a 4 paragraph affidavit of Collins Ukachukwu, Litigation Officer in the Chambers of Messrs M.N. Duru & Co., sworn to on 9/6/2009. Upon service Kabir Momoh, a Legal Practitioner in the Law Firm of Abdullahi Ibrahim & Co, Solicitors to the 4th Respondent also swore to a counter-affidavit on 23/9/2009. Hafsat Wali, a Principal State Counsel in the Department of Civil Litigation, Ministry of Justice, Kano in Kano State, swore to a counter affidavit on 7/10/2009 on behalf of the 1st – 3rd Respondents. In view of this development written addresses were ordered, filed and exchanged by Counsel. On 25/3/2010 the learned counsel to the applicant/appellant filed a written address which was served on counsel to the Respondents. Suraj Sa’eda, the learned Solicitor-General in the Ministry of Justice, Kano State responded with a written address on behalf of the 1st-3rd Respondents on 24/5/2010 while Oladipo Tolani Esq filed a written address on behalf of the 4th Respondent on 17/5/2010. Mr. M.N. Duru Esq of learned counsel to the appellant/applicant filed a Reply on points of law on 24/5/2010. When the application came up on 22/3/2011 each counsel adopted his written address.
APPLICANT/APPELLANT
The learned counsel to the appellant/applicant set out the issue for determination as follows:
“Whether in the circumstances of this matter the appellant/applicant has met with the requirements for the granting of the prayers he sought for on the face of the motion paper before this Court?”
1st, 2nd and 3rd RESPONDENTS
The learned Solicitor-General appearing for the 1st-3rd Respondents adopted the lone issue formulated by the appellant/applicants learned counsel.
4TH RESPONDENT
Counsel to the 4th Respondent formulated the following issue for determination:
“Whether having regard to the instant application and the deposition in the affidavit in support and the positive averments to the contrary in the 4th Respondent’s counter-affidavit the applicant has placed sufficient materials before this Honourable Court to entitle him to an exercise of the court’s discretion in his favour”.
There is a challenge from the 4th Respondent’s learned counsel concerning certain paragraphs of the affidavit in support of this application which touches on the competency of this motion. I am of the humble opinion that it is better to consider the objections before delving into a determination of the lone issue in controversy on merit.
The issue of competency of any application, suit or a challenge to certain paragraphs in an affidavit may go to the issue of jurisdiction or mere irregularity depending on the facts of each case. See Madukolu v. Nkemdilim (1962) 1 All NLR 587 cited with approval in Adeigbe v. Kusimo (1965) NMLR 284 at 287-288 and Laniyan v. Dadeowo & Ors (1971) All NLR 169 at 172-173. Where competency is properly raised and upheld, the suit, application or paragraphs of the affidavit are usually struckout. See Ajayi v. Odunsi (1959) 4 FSC 189. But if the issue relates only to a curable irregularity, that may be ignored or waived, and the proceedings may be determined on the merit subject to payment of costs.
See Cropper v. Smith (1884)26 Ch. D. 710. The affidavit in support of the application reads as follows:
“I, Collins Ukachukwu Male, Christian, Nigerian Citizen of No 37 Niger Street, Kano do hereby make oath and state as follows:
1. That I am the Litigation Officer in the law firm of Messrs. M.N Duru & Co, who are solicitors to the applicant in this suit-
2. That by virtue of my position aforesaid, I am conversant with the facts of this case and I depose to this affidavit from facts within my knowledge and those from named sources.
3. That on the 20th day of April 2009 by 10.30 a.m. in our office at No. 37 Niger Street, Kano I was informed by the Appellant/Applicant whom I verily believe to be true and correct as follows:
a. That judgment in this suit was delivered by the trial Court on the 13th day of February 2006.
b. That immediately after the judgment was delivered in this case, he caused his solicitors to file an Appeal in his behalf. The said Notice of Appeal was subsequently amended by order of this Court. A copy of the said amended Notice of Appeal filed by his solicitors has been shown to me and same is attached herewith as Exhibit MNDI
c. That last week he was going through the entire case again when he suddenly found that certain sections of the constitution were breached in the course of his purported removal, and therefore desirous of raising a fresh issue in relation thereto.
d. That the fresh issue touches on a substantial point of law (constitution) and has the effect of averting the possibility of a miscarriage of justice either way.
e. That in particular he found out that contrary to the clear provisions of paragraph 20(i) of the 3rd Schedule of the constitution of the Federal Republic of Nigeria 1999 three private legal practitioners to wit; KEHINDE SOFOLA SAN, A.N. ATWAMENE SAN and OKPOKO SAN sat in council during the deliberations of 12 and 13th January, 2004, that ultimately led to the dismissal of the plaintiff as a High court Judge of Kano State.
f. That evidence needed to prove the above is already before the Court as Exhibit K and no fresh evidence needs be called by parties.
g. That he found that it was necessary to further amend the statement of claim in this suit to reflect the evidence already before the Court. The previous statement of claim sought to be further amended has been shown to me and same is annexed hereto as Exhibit MN2A
h. That the amendment sort is to bring plaintiff’s pleadings in line with the evidence already before the Court.
i. That the proposed further Amended State of Claim has been shown to me and same is attached and marked as Exhibit MN2
j. That also in the course of studying the case he found out that the learned trial judge failed and or neglected to pronounce upon a very crucial issue which was raised during the trial by his counsel
k. That the said issue is whether the panel set up by the 4th Respondent (not being a law Court) had the powers to try and pronounce upon the guilt of the appellant on allegations bothering on the commission of crime.
l. That consequent to the above it has become necessary to equally amend the Notice of Appeal in this matter.
m. That the proposed amended Notice of Appeal which includes the new grounds of appeal has been shown to me and same is attached and marked as Exhibit MND3
n. That as one of the issues was not raised at the lower court, it became necessary to seek and obtain the leave of this Honourable Court in order to raise same for the first time before this Court.
o. That the Respondent will not in any manner be prejudiced by the granting of this application and the interest of justice will be served more if this application is granted.”
Learned counsel to the 4th Respondent took objection to paragraph 3(e), (f) and (k) namely, that they constitute legal arguments while paragraph 3(o) amounts to legal conclusion contrary to Section (86 and 87) of the Evidence Act 1990. Counsel urged that they should be struckout, citing Eze v. Okoronji (1997) 7 NWLR (pt. 513) at 532; General & Aviation Services Ltd v. Thahal (2004) 4 SC (pt. 1) 109; Horn v. Rickard (1963) of All NLR 41. Learned counsel’s contention is that once these sub paragraphs are struckout there will be no materials upon which the Court will exercise her discretion in favour of the appellant/applicant, citing Labaran v. Okoye (1995) 4 NWLR (pt 389) 303 at 320-324 and Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC 145. Learned counsel to the applicant/appellant replied that all the paragraphs objected to complied with the provisions of the law, citing Orji v. Zaria Industries Ltd (1992) 1 NWLR (pt 216) 124 AT 151. The relevant provisions to be considered in this application are Sections 86 and 87 of the Evidence Act 1990 which reads as follows:
“86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”
A combined reading of the provisions of Sections 86 and 87 of the Evidence Act, supra, will reveal that a person who swears or deposes to an affidavit is called “the witness” in section 86 of the Act supra. The witness must depose to only Statement of facts and circumstances within his personal knowledge, or, from information derived from other sources but which he believes to be true. But the affidavit should not contain extraneous matter example by way of objection, prayer, legal argument or conclusion.
The question I shall consider is whether the evidence or statement of facts and circumstances set out in paragraphs 3(e),(j),(k) and (o) of the supporting affidavit contravenes Sections 86 and 87 of the Evidence Act 1990. First and foremost is the fact that Collins Ukachukwu in paragraphs 1, 2 and 3 of the supporting affidavit that he is the Litigation Officer in the chambers of Messrs M.N. Duru & Co, Solicitors to the applicant/appellant. That by virtue of the aforesaid, he was not only conversant with the facts of this case but he was deposing to the affidavit from facts within his knowledge. Secondly the witness named his source of information to be the appellant/applicant which he derived on 20th day of April, 2009 by 10.30 a.m. in their Office at No. 37 Niger Street, Kano.
The appellant/applicant was an Honourable Justice of the High Court of Justice, Kano State, learned in the rudiments of law, until the issue that gave rise to this suit on 16/3/2004. The information to Collins Ukachukwu arose in the course of the studying the entire case file on 13/2/2006 since delivery of judgment by the learned trial judge. In Horn v. Richard (1963) All NLR 486 at 489 Holden J., (as he then was) held that it was permissible for some members of staff in a counsel’s chambers to depose to an affidavit based on facts as a matter of information and belief, due regard being had to the provisions of Section 86 and 87 of the Evidence Ordinance except if it is only the counsel appearing in the case that had custody of such information, paragraph 3(e), (i), (k), and (o) of the affidavit in support of this application constitutes statements of facts and circumstances derived from the appellant/applicant in the course of studying the case file coupled with what the appellant/applicant observed before divulging the information to Collins Ukachukwu to depose to the affidavit as “witness” in this proceedings.
There is nothing to counter these averments from the 4th Respondent. The evidence in the affidavit remains unchallenged. Even if I should acquiesce to the objection and strikeout these subparagraphs of paragraph 3 of the affidavit what remains as evidence in the rest of the paragraphs is sufficient to ground this application. This is because the purpose of a witness deposing to an affidavit is to provide oral and/or documentary evidence to support the application. An affidavit is therefore to contain oral and possibly documentary exhibits which shall be served on the respondents- Documents referred to in an affidavit form part of the motion and are usually read together to determine the issues in controversy. See Re Hichliffe (1897) Ch. 117; South Eastern States Newspaper corporation & or v. Anwara (1971) 9-115 SC 55; Nwosu v Imo State Environmental Sanitation e.t.c ors (1990) 4 SCNJ 97 at 115; Banque De L’ Afrique Occidental v. Alhaji Baba Sharfardi & ors (1963) NNLR 21; Bamaiyi v. The State (2001) 4 SC (pt 1) 1g at 29, 32-33. There still remains the sworn oral evidence deposed to in paragraphs 1, 2, 3(a)-(d), (f)-(i), and (l)-(m) affirming Exhibits “MNDI”, “K”, “MN2”, “MN2A” and “MND3”. In Afolabi v. Adekunle (1983) 2 SCNLR 141 Aniagolu JSC held at page 150 that:
“While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technilities, to the detriment of the determination of issues between them”.
I refuse to strike out these subparagraphs of paragraph 3 of the affidavit in support of this application. In the light of the above I shall avoid technical justice but prefer the determination of this application on the merit
SUBMISSIONS
Learned counsel to the applicant has submitted that leave is required to raise a fresh issue on appeal citing AIC Ltd v. NNPC (2005) FWLR (pt 270) 1945 at 1965. However, the facts are already before the Court counsel referred to Exhibit “K” tendered in the court below. That an examination of Exhibit “K” will show that substantial Constitutional issues are raised therein on the question whether certain Senior Advocates of Nigeria namely, Kehinde Sofola, A. N. Anyamene and T.J.O Okpoko Esq., should have participated in the proceedings conducted by the 4th respondent upon whose recommendation the 1st-3rd respondents dismissed the applicant/appellant from service as a judicial officer. Learned counsel referred to paragraph 20(i), 3rd schedule to the Constitution of the Federal Republic of Nigeria 1999 to argue that what this Court should consider is whether the amendment sought is in line with the evidence already led at the trial.
Reference was made to a plethora of authorities which I shall consider in due course. Counsel contended that it does not matter if the amendment sought will necessitate the respondents amending their briefs of argument citing First Bank of Nigeria Plc v. May Medical Clinics (2004) 4 SCNJ 1 at 19-20.
1st-3rd RESPONDENT
The learned Solicitor-General of Kano State drew this Court’s attention to the fact that Section 16 of the Court of Appeal Act and Order 6 rules 4 and 5 of the Court of Appeal Rules 2007 do not confer authority on this Court to grant these reliefs. That the appellant/applicant is seeking to introduce new issues on appeal and this Court should refuse the application. The learned Solicitor-General further contended that no materials were placed before this Court to warrant the grant of this application which should be refused.
4TH RESPONDENT
Oladipo Tolani Esq., of learned counsel to the 4th Respondent admitted that on the 12th and 13th January, 2004 the three Senior Advocates of Nigeria were at the meeting complained of in Exhibit “K”. However, no where in Exhibit “K” has it been shown that apart from their mere presence they participated in the decision or deliberations of the 4th Respondent to remove him from Office. My humble view is that these are matters to be determined when hearing the substantive appeal. The Court is not to make pronouncements at this stage that will affect or prejudice the merits of the appeal, more so that the Appeal Court may or may not be called upon to interprete and apply the contents of Exhibit “K” or any other document relevant to the determination of the substantive appeal. See Motune v. Gambo (1983) NCLR 237 at 242; Iweka v. SCOA (200) 3 SC 21 at 24-25 and University Press Ltd v. I.K Martins Ltd (2000) FWLR 722 at 732. I refrain from being drawn into the arguments touching the merits of the appeal at this stage of the application. Learned counsel to the 4th respondent next took objection to the application to amend the Statement of claim at the appeal stage arguing that it is an invitation to this Court to cloth itself with the garb of a trial Court citing Ngwu v. Nnaji (1991) 5 NWLR (pt.189) 18 at 32-33 and Abubakar & Anor v. Joseph & Anor (2008) 5-6 SC (pt 2) 146 at 147. Counsel urged that this application should be refused, moreso that section 16 of the Court of Appeal Act did not apply to the facts of this case. Learned counsel to the applicant/appellant replied on points of law that the Court of Appeal Act supra applied. Even if the Act and Rule did not apply that fact per se did not preclude this Court from granting relief to the appellant/applicant. Reference was made to Maja v. Samouris (2003) FWLR (pt 98) 818 at 841 paragraphs A & B and Witt & Bush Ltd v. DPS Plc (2007) FWLR (pt 382) 181 at 184 paragraphs “D-F”.
Generally speaking it is good sense and reason that the President of the Court of Appeal made the Court of Appeal Rules 2011 providing under Order 7 rule 1 thereof that, “Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought”. The reason is that the rule under which the application is brought may provide or state the kind of materials or evidence that shall be available or the circumstances that may occur or be proved before an applicant may be entitled to a sympathetic hearing or a discretionary remedy.
In Solanke v. Somefun (197 4) All NLR (pt 1) 526 the Supreme Court held at page 530 per Sowemimo JSC., (as he then was) that:
“…As the learned trial judge quite rightly said, it is in our view, the duty of any party applying for leave to amend any proceedings to bring such an amendment within the provisions of Order 33. In the lower Court, the counsel who appeared for the appellant drew attention to three paragraphs of the Statement of Claim as being the same as those in the fresh statement of claim sought to be filed, no indication was given as to what the other paragraphs in the new amended statement of claim were intended or expected to cure in the original one. Rules of Court are meant to be complied with and therefore any part (sic) or counsel seeking the discretionary power of a judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported if counsel fail to discharge their duties in that respect, it is but fair and right that the Court should refuse to exercise its discretionary power…”An applicant has to show the error or defect in the statement of claim that an amendment, if granted will cure in the original one; likewise a statement of defence. This includes other processes of the court. However, in Falobi v. Falobi (1979) 1 NMLR 169 the issue was whether the High court could make an Order under the Infants Law notwithstanding that the application was made under another statute not applicable from the facts established before the High Court. It was in the light of the foregoing that Fatayi-Williams JSC (as he then was) held at page 177 that:
“…In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust. Moreover, the objection to the application of the provisions of section 12 of the Infants Law in the particular circumstances of the case in hand, while it appears to be correct, is of a purely technical nature, and the Western State Court of Appeal should not have refused to do substantial justice between the parties upon a pure technicality. (See G.B. Ollivant v. Vanderpuye (1935) 2 WACA 369, 370.)…”
The principles of law and equity enunciated in Falobi’s case supra presupposes that there exists a remedy in a particular statute, rule, the common law or equity but a counsel or a party brought the application under a wrong statute, rule, common law or equity. In that case the remedy or relief ought to be granted under the proper statute, rule, common or equity. It will be unjust to deny the applicant the relief or remedy. But there should be put before the Court facts or materials supporting the grant of that relief or remedy. However, if there is no statute, rule, common law, or equity the Court, particularly one created by statute or law, cannot grant any. Section 15 of the Court of Appeal Act 2004 provides as follows:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal,… and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part…”
Order 4 rule 1 of the Court of Appeal Rules 2011 also empowers this Court to have and exercise all the powers and duties as to amendment otherwise possessed or exercised by the Court from whence an appeal emanated. The power to amend processes in proceedings conducted in the High Court of Justice, Kano State is provided under the High Court (Civil Procedure) Rules 1988. The provisions are as follows:
“1. The Court or a Judge in Chambers may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.
2. The Court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the Parties.
3. Application for leave to amend may be made by either party to a Judge in Chambers or to the Court at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.
4. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a Judge.
5. Whenever any indorsement on pleading is amended, the court or the Judge in Chambers, as the case may be, may order that a copy of the document as amended shall be filed in the Registry and served on all parties to the action.
6. Whenever any indorsement or pleading is amended, the same when amended shall be marked with the date of the order, if any, under which it is so amended, and of the day on which such amendment is made, in manner following viz:-
“Amended…. …day of … pursuant to order of… dated the …of…”
7. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a Judge in Chambers on motion or summons without an appeal.”
The remedies sought by the appellant/applicant can be brought either under Section 15 of the Court of Appeal Act 2004, or, Order 4 rule 1 and 2 of the Court of Appeal Rules 2011. Statutes which make alterations in procedure have retrospective effect. But if a new right is given or a new disability is imposed, then, of course, the statute would not be retrospective. See R v. Chandra Dharma (1904-7) All ER Rep. 570 at 571.
In the High Court of Justice of Kano State power is conferred on a judge in chambers or sitting as a Court to amend “any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings”. This power may be exercised “at any time, and on such terms as to costs or otherwise as the Court or Judge may think just”. The power could be exercised after delivery of judgment depending on the nature of the “defect or error” committed in the proceedings. The Court or judge in chambers may also at any stage of the proceedings allow any party to alter or amend the writ or pleadings, but this has to be in “such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”. The phrase “at any stage of the proceedings” includes and extends to when the judge has written the judgment but is yet to be delivered. See Chief S.O.N Okafor v. D.O. Ikeanyi & 3 ors (1979) 3-4 SC 99 where the learned trial Judge refused an amendment of the Statement of claim because he had already written the judgment. The Supreme Court allowed the amendment to incorporate the evidence on record.
It should be borne in mind that what was before the amendment will no longer be material for the determination of the rights of the parties once the application is granted. See Seidu v. Attorney-General of Lagos State (1986) 2 NWLR (p. 21) 165 at 170; Jatau v. Ahmed (2003) FWLR (pt 151) 1887 at 1890; Akpan v. Uyo (1986) 3 NWLR (pt. 26) 63 at 70.
However, the Courts will not grant amendment to set up a different cause of action without an amendment. See Ekpan v. Uyo (1986) 3 NWLR (pt 26) 63 at 70; Uzor v. N.S.W.U & or (1973) 1 All NLR 38 at 41.
In determining whether to grant or refuse an application to amend any processes the Courts usually take into consideration the stage at which the application is made, regard being had to the interest of justice. An amendment before the close of pleading or hearing should not change or alter the character of the claim or defence. For example in Courts & Co. v. Duntroon Investment Corporation Ltd & ors (1958) 1 All ER 51 Harman J., (as he then was) held at page 53 that:
“An amendment cannot be made so as to include a right which did not exist at the date of the issue of the writ.”
In Mohammed v. UBA (1976) 2 FWLR 21 citing at p.23 Egelby v. Federated European Bank Ltd (1932) 1 K. 8.254 at page 261 it was held that an amendment was not justified in as much as it admitted a new cause of action which did not exist on the date the writ was issued.
Amendments after close of a case are usually refused except special circumstances are shown. They are granted only in the interest of justice. See Taiwo v. Akinwunmi (1975) 4 SC 143 at 169-170; Apena v. Aiyetobi (1989) 1 NWLR (pt 59) 85 at 97; Adeyeye v. Akin-Olugbade (1987) 6 SC 268 at 279, 286; Sagay v. New I.R. & Co (1977) 5 SC 143 and Imonikhe v Attorney-General (1992) 7 SCNJ 197. In Udechukwu v. Okwuka (1956) SCNLR 189, the case was tried in the then Supreme Court of Nigeria (equivalent to High Court of Justice). Benin City. The plaintiffs claim founded in detinue against the defendant was dismissed with cost assessed at fifteen guineas. The appeal came before the then Federal Supreme Court. The lead judgment was delivered by De Lestang F.J., His Lordship summarized the facts of the claim as follows:
“…The appellant filed a statement of claim which to put it mildly, was irregular in many respects, and in which he omitted to aver that the kit-car was in the possession of the respondent or that the respondent had refused to deliver it to him on demand. The appellant, however, gave evidence to the effect that he was the owner of the kit-car having purchased it from a doctor for 91-255; that he had taken it to a place called Sapele where the respondent resided and had there arranged with him for the vehicle to be kept on the respondent’s premises and for the driver of the vehicle to handover to the respondent for safe keeping the earning’s of the car; that when the appellant went to collect the car the respondent would not let him take it away “unless (the defendant) saw the driver” and that subsequently the respondent ignored a solicitors letter to deliver the car to the appellant. The learned trial judge accepted the appellant’s evidence but held that since the action was founded in detinue lent the statement of claim had omitted pleading that the respondent had taken or was in possession of the kit-car and had refused to deliver it to the appellant on demand, there was no cause of action. The learned trial judge further considered whether he should amend the statement of claim but decided against such a course of action on the ground that an amendment would serve no useful purpose is in as much as, “it would still not improve the plaintiffs’ case because the amended statement of claim would only show that the defendant refused to deliver the car unless the plaintiff produced the driver who had left the car in the defendant’s house; that is a conditional refusal which is not sufficient to constitute detinue.”
The Supreme Court held that the learned trial judge was right in that the statement of claim disclosed no cause of action since the plaintiff/appellant only established conditional refusal in the detention of the kit-car by the defendant/respondent. Though the writ of summons alleged “an unlawful detention, by the respondent there was no cause of action disclosed in the statement of claim which superseded the writ of summons. On the question whether the learned trial judge was right to have declined to amend the statement of claim His Lordship held at page 191 to 192 of the judgment as follows:
“…But where, as in the present case, the respondent knew that the kit-car was the absolute property of the appellant and had himself removed the appellant’s driver and substituted his own driver in his place, his refusal to deliver unless the appellant brought the driver was unreasonable and without justification and showed in my view a clear intention on his part to withhold it from the appellant. In other words, his refusal was conditional in form but not in substance.
It is obvious that had the learned trial Judge been of that view, he would have amended the statement of claim and entered judgment for the appellant in the terms set out in the judgment. That being so, this appears to me to be a proper case in which this Court, in the exercise of the powers conferred upon it should make the necessary amendment. I would therefore, add a paragraph immediately after paragraph 16 of the statement of claim to read as follows:
“16(a) the defendant wrongfully detained and still detains, from the plaintiff kit car…”
In Oguntimeyin v. Gubere & or (1964) NMLR 55 the facts are reproduced by the Supreme Court of Nigeria per Bairamian JSC at page 57:
“There was formal defect left by oversight: plaintiffs’ counsel did not ask for amendment of the writ of summons and of the Statement of Claim to bring them into line with the new plan, exhibit A, in the matter of colour. After the evidence was closed, learned counsel for the defendant began his address by referring to the claim, and drew attention to the writ of summons and the description of the land over which title was sought as being edged pink; whereupon counsel for the plaintiffs asked leave to amend the writ to read in paragraph (a) “blue” instead; and the Judge adjourned for a week to let him bring a full application for any amendment he wished to make. The application brought was to amend the writ of summons so that the claim should be for a declaration to the area in blue, and for an injunction in regard to the land verged pink: Pink was on Exhibit A, the plaintiffs’ new plan put in at the outset of the trial, what…the defendant claimed as his own over and above what the plaintiffs conceded – which was shown in green. In addition the application asked for amendment of the Statement of Claim on similar lines.
At the hearing of the application, counsel for the defendant argued that the amendment should not be allowed on the ground that it was embarrassing to the defence, which was conducted on the basis of the averment in the defence; that the plaintiffs’ had made a mistake in not amending their pleadings before the close of their case, and it was too late to ask for leave to amend after the evidence -for both sides had closed. Plaintiffs’ counsel argued to the contrary. The trial Judge gave a considered ruling, in which he referred to what Bramwell, L.J. said in Tiddesley v. Harper, (1) in favour of giving leave to amend, however late the proposed amendment, where the party applying was not acting mala fide or had not by his blunder done some injury to his opponent which could not be compensated for by costs or otherwise; and later on the trial Judge observed that:-
“Both sides know without the colouring on the plans, the area in dispute and for which the plaintiffs are seeking a declaration of title and injunction; and it is the area shown as land of Oguntimeyin (defendant) in the plan exhibit C filed by the defence. The whole case has been fought by both sides on this basis, and the amendment if granted will, in no way, alter the cause of action or be embarrassing to the defendant. On the other hand it would afford a fair trial of the suit and for the purpose of determining the real questions in controversy between the parties”.
The learned judge granted the amendment asked for. Learned counsel for the plaintiff’s points out that there was agreement on the areas from the start of the trial and the issue was clear; and he argues that as the amendment was made to bring their pleadings into line with the evidence, it falls within one of the cases for amendment mentioned by the learned judge in Lourfi e.t.c.
The Court accepts this argument as correct. In Lourfi etc, no formal amendment was submitted until after both Counsel had addressed the Court. Sellers J. said (at p. 824 of the report) –
“I should allow that amendment because it is setting out in the pleadings that which has emerged in the course of the case as an issue between the parties”.
In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complaint.”
In England v. Palmer (1955) 14 WACA 659 the plaintiff founded his action against the defendant in trespass while the evidence of the defendant centered on ownership rather than possession on which trespass was allegedly committed. The trial judge inspected the land and found that it was the plaintiff that had possession at the material time of the trespass. This supported an action for trespass. The learned trial judge found for the plaintiff and awarded damages against the defendant who then appealed to the West African Court of Appeal. The argument on appeal was that the learned trial judge erred to have allowed the plaintiff/respondent to prove possession when that was not specifically pleaded; that the plaintiff/respondent pleaded ownership and not possession as his cause of action and therefore, the learned trial judge erred to have found for him based on possession. Lastly that the plaintiff being a trespasser could not have maintained an action in trespass. The West African Court of Appeal in dismissing the appeal held at page 660 – 661 as follows:
“…Although, on further reflection I doubt if it was strictly necessary, this Court allowed the plaintiff – respondent to amend the Statement of Claim by adding the words “and in possession” after the word “owner” in paragraph I of the Statement of Claim. The effect, however, was not to alter the character of the action for, as already pointed out, the plaintiff claimed, in effect, as owner in possession. As the case was fully contested on possession and all the same matters were then discussed, the amendment caused no injustice to the defendant appellant. That this is so is apparent from the reply to the Amended Statement of Claim which the defendant – appellant was granted leave to file in this Court and which does not raise any issue upon which relevant evidence had not already been fully given.
Their Lordships of the Privy Council laid down in Ababio IV V. Quartery and Another (5) that “the Court ought to have allowed all the necessary amendments that were required for the purpose of settling the real controversy between the parties…”
Amendments on appeal are to be granted if it is to incorporate the evidence already in the record or adduced at the trial except if the application is brought mall fide. Such amendments can be granted by an appellate Court depending on the facts and circumstances of each case. See also Azozi v. Adehekegba (2009) All FWLR (pt. 454) 1545; Adoigia Werive v. Aideyan (2006) All FWLR (pt 300) 1660; Adeniran v. Olagunju (2002) FWLR (pt 88) 894 at 900 and Ehidimjen v. Musa (2000) FWLR (pt 21) 930 at 960-961. Paragraphs 16-22 of the Amended Endorsed Statement of Claim reads as follows:
“16. The plaintiff avers that he received an invitation from the 4th defendant dated 23rd December 2002 inviting the plaintiff to appear on specified dates before three man committee set up by the 4th defendant to investigate the allegation of oppression, victimization and continued infringement of right to liberty by Alhaji Aminu Nabegu.
The plaintiff pleads and shall at the trial rely on the said letter of invitation.
17. The plaintiff avers that on the appointed day, he was before the said committee and made both orally and written representations to the said committee. At no time whatsoever was he confronted with the issue of demanding and accepting bribe or intimidating a witness of the complainant. The plaintiff’s written submission to the three man panel of the NJC dated 11/03/03.
18. The plaintiff avers that even till date the finding of the said three man committee on the allegation of oppression, victimization and continued infringement of right to liberty by Alhaji Aminu Nabegu has not been communicated to him.
19. The plaintiff shall aver at the trial of this suit that three man committee, and indeed the 4th defendant has no right under our laws to make any findings affecting the rights of the plaintiff or indeed any individual without firstly confronting the person with specific allegations and affording the individual the right to respond to such specific allegation and also affording the said individual the right to appeal against any such finding if he is dissatisfied by such finding.
20. The plaintiff avers that the actions of the defendants in purporting to dismiss the plaintiff from the services of the Kano State Judiciary as a judicial officer i.e. a High Court Judge infringed upon the plaintiff’s right to fair hearing, is unlawful, ultra vires the constitution of the Federal Republic of Nigeria, is therefore null and void.
21. The plaintiff hereby pleads and shall at the trial rely on all correspondence, documents e.t.c, not specifically pleaded but which are relevant in proof of his claim.
22. WHEREFORE; the plaintiffs claim against the defendants is as follows;
(a) A DECLARATION that the purported dismissal of the plaintiff by the 1st defendant based upon the recommendation of the 4th defendant is contrary to law, and therefore null and void and of no effect al. A declaration that the 4th defendants recommendation to the first defendant for the dismissal of the plaintiffs is baseless having no evidence in support, wrong and contrary to law and in clear breach of the plaintiff’s right to fair hearing.
(b). An ORDER of Court setting aside the purported letter of dismissal from the 1st defendant addressed to the plaintiff and dated the 27th day of May, 2004.
(c) A DECLARATION that the plaintiff’s still in the employment of the Kano State Government as a Judicial Officer and is entitled to all rights and privileges pertaining to his office as a Judge of the High Court of Kano State.
(d.) The cost of this action.”
These paragraphs plead facts relating to the proceedings of the 4th respondent that eventually led to the dismissal of the applicant from service. Exhibit “K” and others were tendered and marked during the hearing. These exhibits were referred to in the addresses of learned counsel and in the judgment of the learned trial judge before His Lordship dismissed the plaintiff’s/appellant’s suit. In my humble opinion all that was needed was for learned counsel appearing for the appellant/applicant or the Court to have suo motu drawn attention to these facts and called for address. This Court has before her all the facts relating to the fresh issue sought to be raised and argued on appeal by the appellant/applicant. See Fadiora v. Gbadebo (1978) 3 SC 219; Oredoyin v. Arowolo (1989) 7 SCNJ to at 73; Abayi v. Ofili (1986) SC 231. Indeed in Stool of Abinabina v. Chief Enyimadu, Privy Council Judgments 1841-1973 by Olisa Chukura SAN 1980 edition, p. 511, Lord Cohen in granting the appellant leave to raise fresh issues on appeal held at pages 513-51 4 as follows:
“Neither of these points was taken in the West African Courts. They could not, of course, have been taken before Jackson J., since they only emerged from his judgment. They could have been taken before the West African Court of Appeal, but their Lordships consider that as they involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them, the appellants should be allowed to raise them before this Board.”
See also Agu v. Ikewibe (1991) 4 SCNJ 56 at 66 and Kate v. Daewood (1939) 2 NWLR (pt 5) 116 at 125. The fresh issue of paragraph 20(i) 3rd schedule to the Constitution of the Federal Republic of Nigeria 1999 is an arguable and substantial point of law. In granting these reliefs there will arise the need to further amend the Notice and Grounds of Appeal. All the reliefs are granted the appellant/applicant. No order as to costs.
ORJI-ABADUA, J.C.A.: I had perused the opinion articulated by my learned brother, Joseph Tine Tur, J.C.A., in the ruling of this Court in the application filed by the Appellant for amendment of his pleadings at this appellate stage.
It is a cardinal principle of law that amendment of pleadings may be allowed by the Court even for the first time at the appellate stage where there is a very good and strong justification for doing so, and the Respondent will not be overreached. Therefore, there is no stage in the proceedings where a Court will not grant an application for amendment if justice of the case demands that. It is a right awarded to the parties by Rules of Court at any time and it should not be treated lightly.
There is no doubt this Court has enonnous powers under the Court of Appeal Acts and Court of Appeal Rules to entertain an application such as this and grant the same where the justice of the case demands, so as to bring the evidence at the trial in line with the pleadings. The application may be granted where the opposing party will not be overreached or be placed in such a position that may generate calling of additional evidence.
In the instant application, the affidavit evidence of the Applicant clearly buttressed the facts that the evidence supporting the new grounds and issues to be raised, had already been adduced before the trial Court, and, that the essence of the amendment is to bring the pleadings in line with the evidence already adduced, and the Exhibits tendered before the trial Court. In agreeing with the ruling of my learned brother, I would place reliance, on the decision of the Supreme Court in Mamman v. Salaudeen (2005) 18 NWLR Part 958 p.478 where the case of Laguro v. Toku (1992) 2 NWLR Part 223 p.278 per Akpata, J.S.C., was referred to, and, in which it was held that justice demands that in order to determine the real matter in controversy, pleadings may be amended at any stage of the proceedings, even at the Court of Appeal or Supreme Court to bring them in line with the evidence already adduced; provided the amendment is not intended to overreach 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 where first filed.
On the basis of the aforestated decision, I, too, allow the amendments being proposed so as to make them be in line with the evidence already adduced before the trial Court. I make no order as to costs.
OGBUINYA, J.C.A.: I was privileged to read, in draft, the ruling delivered by my learned brother, J. T. Tur, JCA. I am in agreement with his reasons and conclusions. My learned brother had adequately set out the facts, issues and arguments in the applicant’s application in his ruling. It will be superfluous to recapitulate them. I will rather comment, briefly, on one point in order to shore up the viewpoint of my learned brother.
One of the applicant’s prayers is to count in two additional grounds of appeal to his already pending 13-ground amended notice of appeal and bring the total number to 15 grounds. Ground 15 sought to be factored into the amended notice of appeal, encapsulated in exhibit MND 3 appended to the applicant’s affidavit in support of the motion, complains against the failure of the lower court to consider an issue raised before it that the panel constituted by the fourth respondent, not being a court, lacked the requisite power to try the applicant on the allegation of crime levelled against him.
I am of the, respectful, view that this ground (15), prima facie, is potent enough to earn the applicant a favourable discretion of this court vis-a’-vis his supplication for a further amendment of his amended notice of appeal. I find ample justification, for my opinion, in the hallowed principle of law that all courts, except the Supreme Court, have the bounden duty to consider all issues placed before them. Where a court fails to do that, it has violated the priceless right of parties to fair hearing as engrained in section 36 (1) of the Constitution. Hence, in the case of Tanko V. UBA Plc (2010)17 NWLR (Pt. 1221)80 at 92, Muhammad, JSC, sated:
“The position of the law is very clear that the Court of Appeal has primary duty to consider all issues brought to it for consideration especially this fundamental issue which borders on fair hearing ….
This applies with equal force to all courts of law. Perhaps the only exception to that general rule is the Supreme Court which may decline to consider all issues placed before it by an appellant once it is satisfied that the just resolution of the appeal can turn on the only issue(s) decided by it. … It is thus, a statutory responsibility of all courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity.”
Also, see Ada V. NYSC (2004)13 NWLR (Pt. 891) 639.
On account of this reason, coupled with other detailed reasons adduced in my learned brother’s ruling, I am at one with him that the applicant’s application has merit. I, too, grant it without any order as to costs.
Appearances
M. N. DURE For Appellant
AND
M. S. DAMIYI (DCL) & M. S. AHMAD (SC) – For the 1st – 3rd Respondents
OLADIPO TOLANI, KABIR MOMOH, NATHAN A. DANDIEN, ELOHO DYOUNU – For the 4th Respondent For Respondent
