BARRISTER KELECHI .M. ONYEAMA v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE & ORS
(2019)LCN/12528(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/PH/390/1998
RATIO
COURT AND PROCEDURE: WHAT A COURT IS BOUND BY
“A Court is bound to confine itself to the case presented by the parties and issues raised by them. It has no business considering an issue not properly brought before it, or truncating/frustrating the hearing of one duly brought. See FRC Vs Mohammed (2014) LPELR (Pt.392) 1781 at 1807; Akinfolarin Vs Akinnola (1994)3 NWLR (Pt.335) 659; Okwejiminor Vs Gbakeji (2008)5 NWLR (Pt.1079) 172 at 223; Ojoh Vs Kamalu (2005)8 NWLR (Pt.958) 523.
It should also be noted that justice is and should be rooted in confidence; that where a Court creates room for the litigant(s), or any reasonable person observing the trial, to be apprehensive or doubtful of the Court’s impartiality, its judicial power or competence in the case is questioned and eroded. Such a Court will only be imposing itself on unwilling and suspicious litigant(s), insensitively and arrogantly. See MBAS’ Motel Ltd Vs Wema Bank Plc (2013) LPELR 20736 (CA) where Agim JCA said: ‘We must never lose sight of the fact that Justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with the society, feel at one with and accept its rulings. The moment members of the Society, lose confidence in the system of administration of Justice, a descent to anarchy begins.'” PER ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDURE: WHETHER PLEADINGS CAN BE AMENDED
“The law is also well settled that pleadings can be amended as many times as necessary and at any stage of the proceedings, once the interest of justice demands such amendment. See Melifonwu Vs Egbunike (2001)1 NWLR (Pt.694) 271; (2000) LPELR 6828 CA; NUC Vs Alli & Anor (2012) LPELR- 7971 CA. By law, amendment of pleadings is not refused on the ground that Appellant had earlier been granted leave to amended his pleadings, or should be refused for coming too many times for amendment, and/or in order to check him (applicant) from altering the entire statement of claim, by many amendments!…In the case of Ojah Vs Ogboni (1976)1 NWLR 85 at 99, it was held that an amendment of pleadings should be allowed, unless:
(a) It will entail injustice to the Respondent;
(b) The applicant is acting malafide and
(c) By his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
BARRISTER KELECHI .M. ONYEAMA Appellant(s)
AND
1. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE.
2. COMMISSIONER FOR LANDS, SURVEY AND URBAN DEVELOPMENT, IMO STATE.
3. MR. M. A. IGBINOBA
4. MR. DAVID ABURE
5. MR. S. FOLORUNSO Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Ruling and Judgment of Imo State High Court in suit No. HOW/253/94, delivered by Hon. Justice G.G.I. Ojiako, Chief Judge of Imo State, where the claims of the Plaintiff were dismissed, with N1,000.00 cost to the 3rd Defendant. Appellant herein came to substitute his late father who was the original Plaintiff in the Suit.
At the trial Court, Appellant, as Plaintiff, had sought the following reliefs:
1)That the Plaintiff is entitled to the Statutory Right of Occupancy to the development (sic) premises situate at plot 203, 204 and part of 205 at Onitsha Road Layout, Owerri Urban within jurisdiction.
2) A declaration that any allocation to the 3rd, 4th and 5th Defendants of any part of Plot 205 at Onitsha Road Layout, Owerri void and of no effect.
3) One Million Naira (N1,000,000.00) being special and general damages for trespass for the destruction of the said premises.
4) Perpetual Injunction restraining the Defendants, through their agents, workmen from further trespass and interferences to the Plaintiff’s Right of Occupancy to the said 205 at Onitsha Road Layout. (Pages 1-2 of the Records of Appeal).
The parties filed pleadings and trial commenced but did not lead evidence in full in the case. The plaintiff had concluded his evidence as PW1 and was cross examined but later applied for amendment of the pleadings, which the Court refused. The application was to further amend his pleadings, and the refusal was on the ground that the plaintiff had made a number of amendments in the past and if unchecked would alter the entire statement of claim before the trial comes to an end.
The trial Court also refused the application (made by way of a letter) for the transfer of the case to another Judge to hear. The ground for the application for transfer was bias or real likelihood of bias alleged against the trial Chief Judge. The trial Judge presented the letter for transfer to the Defendants, who filed affidavits against the application for transfer. Appellant said the trial Chief Judge refused the application for transfer, without hearing the plaintiff, on 30/1/97, and after refusing application for adjournment to enable the plaintiff react to the affidavits of the defendants.
The plaintiff again sought a transfer of the suit to another Judge on grounds of real likelihood of bias, by filing a formal motion therefor, which was opposed by the 3rd Defendant, by way of oral objection on the ground that it was similar to the application (by letter) earlier refused. The trial Court struck out the said motion for transfer on 13/2/97, after taking the objection by the 3rd Defendant’s Counsel.
The trial Court, in the same ruling striking out the motion, called on the Plaintiff to proceed with the case by calling evidence to conclude his case. It said:
‘I agree with the defendant Counsel’s objection that the present application is a mere ploy to delay the continued hearing of the case. The Plaintiff since he concluded his evidence in chief, has shown reluctance to call his witnesses, if any, so as to conclude his case. I will not succumb to this ploy of the plaintiff. He must go on with his case and get judgment or loose (sic) it. The motion is therefore struck out.’ See page 102 of the Records.
On that page 102 of the Records the trial Court recorded the Plaintiff?s Counsel as saying, as follows, when plaintiff was ordered to proceed with the case:
‘Plaintiff’s Counsel says that it is the Plaintiff’s instruction that under the circumstances he finds himself in this Court he is unable to continue to prosecute this case in this Court. Says in the alternative the Court stays proceedings pending an appeal. Defendant Counsel says that the application for stay of proceedings is baseless and unfounded in law. Says that since the Plaintiff has declined to continue with the case he will now address the Court on the evidence before the Court, submits that the Plaintiff has woefully failed to prove his case on the evidence he himself tendered in Court.
Based on the above, unplanned address by the defence Counsel urging the Court to dismiss the plaintiff?s suit, for lacking in merit, the trial Court, proceeded to judgment on the spot, saying:
“I totally agree with the defence Counsel’s submissions. A plaintiff in a land case has an obligation to prove the identity of the land in dispute. It is a sine qua non to their proof that the plaintiff is entitled to a statutory right of occupancy to plot 203, 204 and part of Plot 205 of Onitsha Road Layout, Owerri. The plaintiff, who in his evidence in chief said he would tender the plan of the land for identification purposes, failed or refused to do so. His attempt looks like a trial at a gamble in which he hits or misses his target. He has equally failed to prove any item of his special damages much less the general damages. Since the plaintiff is unable to continue after his evidence in-chief, I have no alternative to dismissing his claim and the claim in suit No. HOW/253/94 is hereby dismissed? I will award cost to the 3rd Defendant assessed at N1000.00?. See page 103 of the Records of Appeal.”
The Plaintiff had also objected to a State Counsel appearing for the 4th Defendant at the trial, but was overruled by the trial Court. The Suit, originally, was before Hon. Justice Udom Azogu but was later assumed jurisdiction by the Hon. Chief Judge, in circumstances that were not clear.
Aggrieved, Appellant appealed against that decision, as per the Notice of Appeal on pages 107 to 109 of the Records of Appeal throwing up 3 grounds of appeal. He filled additional grounds of Appeal (4 of them) with leave obtained on 6/12/99. Appellant filed brief of argument on 23/12/98, and upon substituting the original Appellant, Chief I.A. Onyeama with his son, Barrister Kelechi Onyeama, on 14/6/2018, Appellant filed another Brief on 4/7/18. He distilled five (5) Issues for the determination of the appeal, namely:
1)Whether appellant was given fair hearing in the determination of this suit. Grounds 2,4,5
2)Whether an application brought under Section 46 of the High Court Law, Cap 61, Laws of Eastern Nigeria, 1963 (applicable in Imo State) has the same procedure and effect as an application brought under Section 17 of the same law. (Ground 1).
3)Whether the trial Court was right in allowing State representation of the 4th Respondent who was sued in his private and not official capacity (Ground 6).
4)Whether, considering the manner in which this suit was transferred from the first Court of trial to the present Court, which determined it, the present trial Court had jurisdiction to hear and determine the suit. (Ground 7).
5)Whether the judgment of the trial Court is supported by evidence led (Ground 3).
Only the 5th Respondent filed Respondent?s brief, which he did on, 11/11/02, upon obtaining extension of time to do so on 28/10/2002. The 5th Respondent adopted the issues as distilled by Appellant for the determination of the Appeal.
When the Appeal came up for hearing on 26/11/18 the Respondents were absent, but there was evidence of their being served with the notice of hearing. The two briefs were, therefore, deemed as duly argued.
Arguing Issue 1, whether Appellant was given fair hearing in the determination of the suit, Appellant answered in the negative. Counsel argued that the circumstances that got the case transferred to the learned Chief Judge (Court 1) from Court five, presided over by Udom Azogu J. (as she then was) curious, as there was no application for the transfer made by any party in the open Court; that the case suddenly got listed on the cause list of the learned Chief Judge (C.J.), while the 3rd and 5th Defendants were boasting of some underhand moves to bring about the transfer. Counsel referred us to the application Appellant made by way of letter for the transfer of the case from the Chief Judge’s Court, and how the Chief Judge called for the reaction of the Respondents thereto, and they (Defendants) filed affidavits to oppose the letter of transfer, but the learned Chief Judge refused Appellant opportunity to respond to the affidavits of the Respondents, and went on to refuse the application for transfer, without hearing Appellant out. Counsel said that an impartial judge would have, in the circumstances, allowed appellant time to reply to the affidavits, not just 30 minutes to read them (as they were served in Court); that the Court should not have proceeded to refuse the application, without hearing the plaintiff.
Counsel said that the learned Chief Judge also struck out a formal motion for transfer made by Appellant, based on objection raised by 3rd Respondent’s Counsel, without even hearing from the Appellant; that the learned Chief Judge closed his eyes to the massive facts in the application of the Plaintiff, pointing at bias or likelihood of bias, when those facts were not denied or countered by the Respondents. Counsel said that the trial Court took a stand and was saying to the Plaintiff ?I will complete the case whether or not you like it?.
Counsel said that an impartial judge, who knows that a party has lost confidence in the way he handles a suit, ought and should give-up the trial of the case; that justice can only be rooted in confidence, and that when confidence is destroyed, the right thinking people would go away thinking that the judge is biased. He relied on the case of Garba and Ors vs. University of Maiduguri (1986)2 SC 128.
Counsel also cited how the learned Chief Judge refused to allow the plaintiff to further amend his statement of claim, on the ground that the plaintiff had made previous amendments and if allowed, he may, by piece meal, alter the entire statement of claim, before the trial ended! Counsel submitted that the law allows a party to amend his pleading at any stage and as many times as necessary; that the only ground to refuse amendment is where the same is over-reaching or likely to prejudice the other party. He relied on Kalu Vs Odili (1992)10 CSCD 7 at 12 – 13; Oyegoke Vs Hamman (1990)4 NWLR (Pt.143) 197 CA. Counsel added that an amendment can even entail the substitution of the old document with a new one. He relied on Odoemena Vs Onyeaka (1977) 2 IMSLR74.
Counsel also submitted that the learned Chief Judge was wrong to order the Plaintiff to continue the hearing of the case immediately after refusing the application for transfer; that the Court did not consider the fact that the Plaintiff was in Court on that day/date to argue the motion for transfer, and so did not contemplate a situation a ruling would be given on the spot and he being asked to proceed, without time to adjust; that it was wrong for the Court, after taking submission from the Counsel for 3rd Defendant, to proceed to enter judgment, dismissing the plaintiff’s suit! He said that the plaintiff was not even heard, as his counsel was not called upon to address the Court before the judgment was made. Counsel relied on the case of Obodo Vs Olomu & Ors (1987)6 SC 154; Unongo Vs Aku & Ors (1983)11 SC 129 at 153 to condemn the undue haste or hurry of the trial Court, and the unfair handling of the case, saying that the plaintiff (Appellant) was denied fair hearing, by so doing. He relied on Mohammed Vs Kano Native Authority (1968)1 All NIL 42 SC; Kuusu Vs Udom (1990)1 NWLR (Pt.127)421 SC; Otapo Vs Sunmonu (1987) 5 SC.
On Issue 2, whether the application brought under Section 46 of the High Court Law, Cap 61, Laws of Eastern Nigeria 1963, (applicable in Imo State), has the same procedure and effect as an application brought under Section 47 of the same Law, Counsel answered in the negative, saying that the 1st Provision (Section 47) has to do with application under the administrative jurisdiction of the Chief Judge, while the 2nd (Section 46) relates to his judicial jurisdiction; that the learned Chief Judge was wrong when he said there was no difference in substance between Section 46 and Section 47 of the High Court Law, as both deal with transfers.
On issue 3, whether the trial Court was right in allowing State Counsel?s representation of the 4th Respondent, who was sued in his private capacity and not in official capacity, counsel answered in the negative too. Counsel submitted that the 4th Respondent was not sued in his public office as Commissioner of Police, but in his private capacity.
He relied on the case of Ejimofo Vs MCC (Nig) Ltd. (1978)1 MSCLR 100 to say that the 4th Respondent should not have been represented by a State Counsel.
On Issue 4, whether the trial Chief Judge had jurisdiction to hear and determine the suit, Counsel said that by virtue of the way and manner the case was transferred from the Court 5, which first tried the case (presided over by Hon. Justice. G. Ifunanaya Udom – Azogu) to the learned Chief Judge’s Court, the Chief Judge lacked jurisdiction to try the suit; he said that the said transfer was fundamentally irregular, as the Administrative Judge (Udom-Azogu J.) lacked the legal competence to transfer a case from one High Court to a Chief Judge, sitting as a High Court. Counsel argued that only two categories of persons can transfer cases from one Court to another, namely, the Chief Judge or the High Court Judge, before whom a matter is pending; he said that the above did not contemplate “an Administrative Judge,” which is a mere office of convenience and unknown to law.
On Issue 5, whether the judgment was supported by evidence, Counsel answered in the negative. Counsel said that the only evidence before the Court was that of the plaintiff (Appellant) as no other person testified in the suit; that the position of the law was therefore that the defendants admitted all the facts put forward by the Appellants. He relied on Toriola Vs Williams (1982)7 SC 27.
Counsel conceded that the plaintiff has to succeed on the strength of his case, but added that a plaintiff, by law, can rely on the weakness of the case of defence. He said that in his evidence in chief, Appellant described the lands by name and location; that he traced root of his title to certain persons from whom he bought same; gave evidence of various acts of ownership and evidence of particulars of damages; that he (Appellant) was emphatic that the lands were never acquired by government; that the defendants did not deny any of the above, hence the Court should have entered judgment for Appellant. He relied on Arabe Vs Asanlu (1980)1 MSLR 48.
Counsel urged us to resolve the Issues for Appellant and to allow the appeal, set aside the rulings and decision of the trial Court, and order for fair hearing and completion of the trial of the case.
Responding, Counsel for 5th Respondent E.C. Ekechukwu Esq, on issue one, said there was no denial of fair hearing to the Appellant, or breach of rules of natural justice; he said that the rule merely ensures that a party is given opportunity to be heard, and does not mean that a party had to be given all the latitude which he may wish to have in the presentation of his case or defence. He relied on Otapo Vs Sunmonu (1987)2 NWLR (Pt.58) 587. He argued that in this case the trial Court complied with the law and did not evince any interest in the case.
Counsel submitted that in all the circumstances of this case, all the known rules of fair hearing were observed; that plaintiff had merely suspected that the trial Chief Judge was biased, without any proven facts pointing to the alleged bias; that suspicion is not sufficient in law to disqualify the trial Chief Judge, without more. He relied on the case of Secretary Iwo Central Local Govt. Vs Adio (2000) FWLR (Pt.7) 1142; Bamgboye Vs University of Ilorin (2001) FWLR (Pt.32)12.
On Issue 2, the Respondent’s Counsel agreed with Appellant as to the substantive and procedural differences between Section 47(1) and 46(1) of the High Court Law, Cap 61, Laws of Eastern Nigeria, 1963, applicable in Imo State, even though both deal with transfer of cases. He added that the real question was whether the trial Chief Judge’s failure to hear the motion for transfer filed by Appellant, pursuant to Section 46(1) of the High Court Law aforesaid, occasioned a miscarriage of justice, having refused the first application for transfer by the Appellant pursuant to Section 47(1) of the same law. Of course, he answered in the negative, relying on the definition of the term miscarriage of Justice to mean ‘a grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite lack of evidence on the essential element of the crime’. He referred to Black’s Law Dictionary, Seventh Edition, page 1013.
He said that it was the same Judge (as Chief Judge) who dismissed the application for transfer (under Section 47 (1) of the Law) that was to hear the application for transfer (under the Section 46(1) of the same Law. Counsel added that while he conceded that the trial Court?s failure to hear and determine the motion for transfer in the circumstances, amounted to irregularity, it was not one that occasioned miscarriage of justice.
On Issue 3, Counsel said that a perusal of Section 79 of the High Court Law, Cap 61, Laws of Eastern Nigeria 1963, shows that the circumstances in which the state can offer its legal representation is not fore-closed; that there is no bar on the State to extend representation in all other cases, where it feels that it has some ‘sufficient interest to protect’; he said that in this case the 4th Respondent was sued, because the plaintiff claimed that the land allotted to the 4th Respondent formed part of the land he (plaintiff) claimed, and the allocation was done by Imo State Government, through the 1st and 2nd Respondents; that one cannot therefore deny sufficient state interest in the subject matter, to warrant the extension of state representation to the 4th Respondent. Counsel added that the said State representation did not occasion any miscarriage of justice on the Appellant.
On Issue 4, Counsel conceded on the relationship between Section 46(1) and 47(1) of the High Court Law and the two categories of Judges with power to transfer causes therein, but submitted that the office of administrative judge is not merely one of convenience, because such an office is envisaged, covered and authorized by Section 42 of the same High Court Law (supra). Counsel added that any transfer of a case outside the contemplation of the provisions of the High Court Law (above cited), can only amount to an ‘irregularity’ or ‘an irregular transfer’, that in law such will be liable to be set aside on the application of aggrieved party, for noncompliance with the law; that such an irregularity can also be waived.
He submitted that the transfer of this case from the 1st Judge to the Chief Judge could, at most, amount to irregularity, but same did not, in any way, divest the jurisdiction or affect the competence of the Chief Judge, to whom the case was transferred; thus, the effect of the irregular transfer did not amount to nullity of the proceedings. He relied on Abiegbe Vs Registered Trustees of African Church & Ors (1992)5 NWLR (Pt.241)386.
On Issue 5, Counsel said that civil cases are normally decided on the preponderance of evidence or balance of probabilities (Mogaji Vs Odofin (1978)4 SC 91); that in the circumstances of this case this principle could not strictly apply for the following reasons:
a) All the parties did not lead evidence in support of their respective cases.
b) Only the Appellant testified as PW1 and was cross examined by Counsel for 1st, 2nd and 4th defendants and counsel for 3rd defendant
c) The plaintiff did not call any other witness.
d) The plaintiff did not make or announce a formal closure of his case, rather he refused to take further part in the proceedings after his own evidence and
e) The evidence of PW1 was entirely challenged under cross examination by the defence.
Counsel said, in the circumstances, the only option left to the trial Court was to consider the effect of the evidence so far adduced and decide the case accordingly; that that is the law in such situation. He relied on the case of Eronini Vs Iheuko (1989)12 NWLR (Pt.101)46; Soetan Vs Total Nig Ltd (1972)1 All NLR (Pt.1)1; Rodrigues Vs Public Trustees (1977)4 SC 29.
Counsel argued that the plaintiff failed to call, at least, the only surviving vendor ? Ambrose Oparaugo, to testify in the proceedings; that he did not call any of the witnesses he lined up; that he did not even seek adjournment to do so; that the trial Court was in order when he dismissed the case, in the circumstances.
Counsel urged us to resolve the issues against the Appellant and dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the real issue for the determination of this appeal is:
Whether, considering the way the learned Chief Judge handled the trial of this case, Appellant was accorded fair hearing, and in particular, whether the trial Court was right to refuse Appellant’s application to further amend his statement of claim.
I believe the Issue above is a summary of the five issues distilled by the Appellant and adopted by the 5th Respondent.
Starting with the way the case came to the Chief Judge’s Court (Court No. 1 presided over by the learned Chief Judge of Imo State), much was left to speculation and insinuations, as there was no formal application from any of the parties to transfer the case from the Court No. 5 (presided over by Hon. Justice G.I. Udom-Azogu, as she then was) to the Court No.1, manned by the learned Chief Judge. The Records of Appeal does not disclose how the transfer come about, but there is evidence that Hon. Justice Udom-Azogu was the first Judge to handle the case, and the two sides (parties) are ad idem on that.
In the letter written by the Appellant on 13/1/97, seeking the transfer of the suit, administratively, from the Chief Judge’s Court to another Judge, Appellant had stated:
‘In the first place this case was in Court No.5, when I handed to the 3rd Defendant my letter dated 2/5/95. The 3rd Defendant boasted, that he (3rd Defendant) would contact the Chief Judge to take over the case and my ‘noise making’ over the land in dispute would stop. I did not believe him, but on 15/5/95, the Chief Judge took over the case pending before Court No.5. When I noticed this fact later, I rushed to Court No.1 and my Lord told me in open Court that he was about to strike out my case for non-appearance. I was surprised. The Court asked me to go to Court No.5 to collect the Defendants (then served) with their Counsels. Neither the Defendants nor their Counsels were in Court No.5 or in Court No.1. Court ordered hearing notice in their favour, without costs’. See page 78 of the Records.
That letter and the assertion of the Appellant were not debunked or sufficiently countered, in my view, though the learned trial Chief Judge had made that letter available to the Defendants (Respondents herein), and they filed affidavit against the application for the transfer; therein the 3rd Respondent averred:
2) That my attention has been drawn to an application dated 13th January, 1997 made by the plaintiff for this matter to be transferred out of this Court.
3) That I vehemently deny all the allegations and insinuations therein made against me?
6) That the application is yet another ploy by the plaintiff, to delay this matter.
7) That the plaintiff has variously boasted that as a lawyer he knows enough of legal tricks to use and prevent this matter from being determined, until my transfer from this place which is anticipated, as public officer.
8) That I have never boasted of using my position to influence matters in this case in any (sic) whatsoever Page 82 of the Records.
The 1st Defendant, through a litigation officer in the Ministry of Justice, Imo State, made a similar affidavit to deny the insinuation (pages 84 – 86 of the Records), but none of them explained how the Suit, pending at Court 5, suddenly got listed before the Chief Judge; who even threatened to strike it out for non-appearance of the plaintiff!
Curiously, the learned Chief Judge made the letter of the Plaintiff available to the Respondents and acted on the affidavits filed by the Respondents to say that the plaintiff was only trying to delay the trial of the suit (which the plaintiff himself filed!) There is nothing to show that the learned Chief Judge gave the plaintiff (Appellant) any opportunity to react to the copious affidavits of the Respondents to the simple letter written by the Appellant, or to show that the Court gave him (Appellant) opportunity to even present the application in the open Court (the Court having chosen to take the letter to the open Court!) The learned Chief Judge went on to hold (without any address of Counsel):
‘There is an application by the plaintiff for an order for the transfer of this suit to another Court. I have asked the opposing Counsel to give me their own view on the transfer application. Chief Onyeama has been served with two affidavits denying the facts alleged by him, Chief Onyeama. He said that his application for transfer of this suit was made to me as Chief Judge and that it ought to have been treated, administratively. I must state that the application of Chief Onyeama baffled me and as such I have to send the application to the opposing Counsel for their views on the matter, especially as the opposing Counsel and the Defendants they represent were variously mentioned in Application? It would be unfair on my side to rule on the application in chambers administratively, without letting the other parties Counsel who have been in the matter all along (sic) air their views. I, therefore, rule that the reaction by the Defendants/Counsel on their behalf whether oral or in writing by affidavit are in order. I will therefore receive the said affidavits in reaction to the application as Exhibits. The application by Chief Onyeama is received as Exhibit A. The reaction by Wilfred Igbinola, 3rd Defendant, as Exhibit B and that filed on behalf of 1st, 2nd and 4th Defendants are Exhibit C (page 87 of the Records).
At that point the learned Chief Judge ask Chief Onyeama whether he had anything to say in addition to what he stated in the letter. Appellant (Chief Onyeama) told the Court that since he was just served the two affidavits in Court, he needed time to read the same. The trial Court gave him 30 minutes to read the lengthy affidavits spanning pages. pages 82 -86 of the Records of Appeal!
After the reading, the plaintiff (Appellant herein) spotted some averments that needed to be reacted to by filing counter affidavit and sought adjournment to do so. That was opposed by the Respondents, and strangely, the learned Chief Judge, right there, ruled against the plaintiff, shut him out of the application, and refused the application for transfer, without hearing it! Pages 88 ? 91 of the Records.
That was not all, Appellant also filed a motion to further amend his pleadings. The learned Chief Judge refused the application to further amend the statement of claim without even hearing it on the grounds that:
‘So far the plaintiff has made 7 amendments since he filed his statement of claim, some oral, some written, viz 17/1/96 motion for amendment statement of claim; 5/3/96 application, to amend particulars of special damages in paragraph 31; 2/5/96 oral application to amend paragraph 16 of the amended statement of claim; 8/5/96 another oral application to amend paragraph 22 of the amended statement of claim. Then the present application with that of 28/10/96. At this rate the plaintiff is going on, if unchecked, he would by piece meal, alter the entire statement of claim before the trial comes to an end, if ever it would, with this spate of amendments. For the foregoing reasons the motion is dismissed for being misconceived.’ Page 93 of the Record of Appeal.
After dismissing the motion to further amend the pleading, the trial Court ordered the plaintiff to go on with his case (Cross examination)! When Appellant brought another application (this time, formally, by motion) for transfer of the case to another Court/judge, the learned Chief Judge did not even wait for Appellant to move the motion, as he relied on the oral objection, raised by the 3rd Respondent’s Counsel, to dismiss the suit.
It does not even appear Appellant was ready for the oral objection by Counsel for 3rd defendant, which was suddenly raised after announcing appearance for 3rd Respondent!
Pages 101 to 102 carry what transpired on 13/2/1997, when the motion for transfer came up, having been filed on 12/2/97 (the previous day). The Court said:
‘On the motion for Transfer filed by the plaintiff, Defence Counsel for the 3rd defendant submits that the application is baseless, frivolous and contemptuous. Adds that it is a tragedy that a Senior Counsel of T.A. Onyeama’s caliber should be party to such an application. Says it is in record on 3/2/97 this Court dismissed an application for Transfer by the same plaintiff after full argument. Says it is elementary principle of law that a Court cannot write a Ruling twice on the same matter, nor can this Court sit on Appeal over its ruling of 3/2/97′ Urges the Court to strike out the application as it is brought in bad faith and another ploy to delay the continued hearing of the main case. Responding plaintiff’s Counsel urges the Court to discountenance the objection at it is misleading and misconceived that application of 3/2/87 was (brought under administrative jurisdiction of the Chief Judges’ and is not justiciable and not appealable, while the present application ‘ is under Section 46 of the Law’
I do not therefore see the difference which was ruled upon by this Court on 3/2/97 and the present one. I agree with defence Counsel’s objection that the present application is a mere ploy to delay the continued hearing of the case. The plaintiff, since he concluded his evidence in chief, has shown reluctance to call his witnesses, if any, so as to conclude his case. I will not succumb to this ploy of the plaintiff. He must go on with his case and get judgment or loose (sic) it. The motion is therefore struck out Pages 101 0 102 of the Records.
I had earlier reproduced how the trial Chief Judge concluded the case, without affording the plaintiff time to move his motion, or recover from the shock of being taken by surprise, as the Respondent never, filed a formal objection to the motion for transfer. The Learned Chief Judge said:
I totally agree with the defence Counsel’s submissions. A plaintiff in a land case has an obligation to prove the identity of the land in dispute. It is a sine qua non to their proof that the plaintiff is entitled to a statutory right of occupancy to plot 203, 204 and part of Plot 205 of Onitsha Road Layout, Owerri. The plaintiff, who is his evidence in chief said he would tender the plan of the land for identification purposes, failed or refused to do so. His attempt looks like a trial at a gamble in which he hits or misses his target. He has equally failed to prove any item of his special damages (sic) much less the general damages. Since the plaintiff is unable to continue after his evidence in-chief, I have no alternative to dismissing his claim and the claim in Suit No. HOW/253/94 is hereby dismissed? I will award cost to the 3rd Defendant assessed at N1000.00. See page 103 of the Records of Appeal.
I am afraid the above scenarios amounted to a gross violation of the plaintiff’s (Appellant’s) rights of fair hearing and was a bungling of the case of the Appellant, confirming the fears of the Appellant about a compromised handling of the case by the learned trial Chief Judge.
I think since there was no formal legal or administrative explanation of how the case, which was before High Court No.5, presided over by Udom-Azogu J, suddenly appeared on the cause list of the learned Chief Judge, the learned Chief was under a legal/moral burden to refuse to do the case; and that he wrongly assumed power to do the case, given the privilege of knowing that his name was being bandied by a party to the case in a manner that would call his integrity to question in the matter. He should have declined taking on the case rather than struggle to retain same in his Court. Instead of recusing himself, the learned Chief Judge rather acted in a manner that seemed to justify the fears of the Appellant, by being openly hostile to him and denying him fair hearing at each stage of the proceedings, which, in my opinion, was a charade. He tried to hurry the hearing of the suit, at the expense of the very party that brought the action!
The fundamental principle of law requires transparency, adherence to rules and procedure in the handling or hearing of any case, such that the rights of each party to present his case is not hampered or compromised.
In the recent case of Osareren Vs FRN (2018) LPELR 43839 SC it was held that:
‘The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It render the proceedings a nullity, no matter how well conducted the proceedings were. Madukolu Vs Nkemdilim (1962). LPELR-24023 (SC).
I think the way the learned Chief Judge dismissed the applications for transfer of the case, on the submissions of the defendants’ Counsel, on oral objection, without hearing the applicant (Appellant), first breached all known rules of procedure and fair hearing, and mocked the entire trial.
In the recent decision of this Court in the case of Christian Nwawuba Vs Eze Ezeabasirim & Ors; CA/PH.123/2008 delivered on 10/12/18, we said:
the trial Judge had no firm control over his Court, and did not follow set down rules of procedure or Court Practice. A Court must be guided and guarded by its rules and must not yield or surrender its powers/authority to a Counsel or any person, no matter how influential or eloquent, to distract, confuse or steer it off the course of sound discretion and principles of justice, to compromise its rules and set goals. It is also trite that a Court must confine itself to the case and issues properly raised before it, and is not permitted to extend the frontiers of the battle fought by both parties. NJC and Ors Vs Aladejana & Ors (2014) NSCC 447; Irom Vs Okimba (1998)3 NWLR (Pt.540)19; UBN Plc Vs Emole (2001)18 NWLR (Pt.745) 501.
A Court is bound to confine itself to the case presented by the parties and issues raised by them. It has no business considering an issue not properly brought before it, or truncating/frustrating the hearing of one duly brought. See FRC Vs Mohammed (2014) LPELR (Pt.392) 1781 at 1807; Akinfolarin Vs Akinnola (1994)3 NWLR (Pt.335) 659; Okwejiminor Vs Gbakeji (2008)5 NWLR (Pt.1079) 172 at 223; Ojoh Vs Kamalu (2005)8 NWLR (Pt.958) 523.
It should also be noted that justice is and should be rooted in confidence; that where a Court creates room for the litigant(s), or any reasonable person observing the trial, to be apprehensive or doubtful of the Court’s impartiality, its judicial power or competence in the case is questioned and eroded. Such a Court will only be imposing itself on unwilling and suspicious litigant(s), insensitively and arrogantly. See MBAS’ Motel Ltd Vs Wema Bank Plc (2013) LPELR 20736 (CA) where Agim JCA said:
‘We must never lose sight of the fact that Justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with the society, feel at one with and accept its rulings. The moment members of the Society, lose confidence in the system of administration of Justice, a descent to anarchy begins.’
In this case where Appellant had applied by letter for administrative discretion of the learned Chief Judge to transfer the case to another judge, in view of the unclear circumstances under which he assumed jurisdiction to hear the case and the alleged boasting by the 3rd Respondent, I think the learned Chief did not have to call for affidavit from the Respondents to oppose the transfer, and when he did, would not give Appellant opportunity to react to the affidavits! The Court did not even allow the Appellant to take the application or address the Court, openly, before handing down the verdict of refusal and dismissal of the application! That flouted Appellants rights of fair hearing, in my view, making the entire proceeding liable to be set aside.
See Ominiyi Vs Alabi (2015) LPELR 24399 SC; Mfa & Anor Vs Inongha (2014) 1-2 SC (Pt.1) 43; Tsokwa Motors Nig. Ltd Vs UBA Plc (2008) All FWLR (Pt.403) 1240; Adigun Vs A.G. Oyo State (1987)1 NWLR (Pt.53) 674; Okafor Vs A.G. Anambra State (1991)3 NWLR (Pt.200) 59 and Leaders 7 Co. Ltd Vs Bamaiyi (2010)18 NWLR (Pt.1225) 329.
The law is also well settled that pleadings can be amended as many times as necessary and at any stage of the proceedings, once the interest of justice demands such amendment. See Melifonwu Vs Egbunike (2001)1 NWLR (Pt.694) 271; (2000) LPELR 6828 CA; NUC Vs Alli & Anor (2012) LPELR- 7971 CA. By law, amendment of pleadings is not refused on the ground that Appellant had earlier been granted leave to amended his pleadings, or should be refused for coming too many times for amendment, and/or in order to check him (applicant) from altering the entire statement of claim, by many amendments!
What determines application for amendment is the need to bring out all the relevant issues in controversy in a case for the Court to do justice in the case. It can only be refused, if the amendment will overreach the opponent and/or prejudice him, or introduce new/different cause of action, to enthrone injustice. See Laguro Vs Toku (1992) NWLR (Pt.223) 278; (1992) LPELR 1747 SC; Okolo Vs UBN Ltd (1999)10 NWLR (Pt.623) 429; Osho Vs Ape (1998)8 NWLR (Pt.562) 492; Adun & Ors Vs Alile & Ors (2017) LPELR 42501 CA; Akaninwo & Ors Vs Nsirim & Ors (2008) LPELR 321 (SC).
The case of Eze Vs Ene & Anor (2017) LPELR 41916 SC, restated the general principles governing amendment of pleadings, thus:
‘The general principle of law is well settled that an amendment of pleadings can be made at any time, before judgment. However, notwithstanding the wide latitude, the intention is not to leave the consideration open-ended and without proper control so as to create a flood gate of an abuse of discretion. The case of Imonikhe Vs A.G. Bendel State (1992)7 SCNJ 197 at 207 – 208, Per Nnaemeka Agu JSC is relevant wherein this Court said:
‘Although, by rules, an amendment to the pleadings can be made at any stage of the proceedings, different considerations apply, depending on whether the amendment is being sought before or after close of the evidence by the parties. Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible’ But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premise that evidence in support of it is already on records so that it is necessary and in the ‘interest of justice to allow the amendment in order to make the pleadings or claim accord with evidence already on record. The rationale of it is that such amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties’. Per Ogunbiyi JSC
My lord further held in that case (above) that:
the duty of a Court, as an arbiter, is to act for the benefit of all parties. It follows therefore that an amendment which will serve the interest of justice of the case is beneficial to all parties and should be granted. The caveat, however, is also true that, if an amendment is sought either in bad faith, for purpose of undermining the case of the opponent or is simply done with the intention of giving the party seeking same to have a second bite at the cherry, then such should not be allowed.
In the case of Ojah Vs Ogboni (1976)1 NWLR 85 at 99, it was held that an amendment of pleadings should be allowed, unless:
(a) It will entail injustice to the Respondent;
(b) The applicant is acting malafide and
(c) By his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.
In the case of Aliyu & Anor Vs Gwadabe & Ors (2014) LPELR 23463 CA this Court said:
‘On the issue of amendment, the law permits amendment to be done at any stage of the proceedings, even on appeal. If that is necessary to bring the out the real issues in contention before the Court for adjudication, and it can be done to accommodate an evidence already adduced in Court, to make the same available for the consideration of the Court. Once the complaining party cannot establish any prejudice or over-reaching or any form of injustice on him as a result of an application for amendment, he cannot stand in the way of an application to amend a process, which the interest of justice requires. Laguro Vs Toku (1992)2 NWLR (Pt.223) 278; Okeowo Vs Milgore (1979)11 SC 138; UBN Vs Lawal (2012)6 NWLR (Pt.1295) 186. See also Kalu & Ors V Kalu & Ors (2018) LPELR 44264 (CA) page, 8 ? 9 paragraphs B E.’
My lord, Onnoghen JSC, now the Chief Justice of Nigeria, had held in the case of Mamman Vs Salaudeen (2005)18 NWLR (Pt.958) 478; (2005) LPELR 1833 SC, that amendment of pleading can even be done at Appeal stage if the justice of the case so demands. He said:
‘In such situations, amendments are more readily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case…’
Justice demands that in order to determine the real matter in controversy, pleadings may be amended, at any stage of the proceedings, even in the Court of Appeal or this Court (Supreme Court) to bring them in line with evidence already adduced; provided the amendment is not intended to over-reach and the other party is not taken by surprise and the claim or defence of the said other party would not be different had the amendment been averred when the pleading were first filed. See also Laguro Vs Toku & Anor (1992) LPELR 1747 (SC).
In this case at hand, Appellant had applied on 23/10/96 for order:
a. Amending the amended statement of claim as contained in the proposed Amended statement of claim herein attached as Exhibit ‘A’
(b) Deeming the amended statement of claim as duly filed and served as the filing fees have been paid?
As part of the grounds for the application, Appellant deposed in paragraphs 11 and 12 of the supporting affidavit, as follows:
“11) That the plaintiff, Chief I.A. Onyeama informed me and I believe him, that there is need to amend the statement of claim to bring to the NOTICE of Court what has been happening on the land in dispute since the last adjournment in this case.
12) That after the last adjournment the plaintiff obtained from the Owerri Capital Development Authority OCDA a certified copy of the area of Onitsha Road Layout part of which is now in dispute, as the first chart was not certified.? (See page 64 of the Records of Appeal)
Despite the fact that the plaintiff (Appellant herein) had filed the Amended Process and sought to deem same as duly filed, the trial Chief Judge, in refusing the application for amendment said:
‘I quite agree with the submission of the two opposing counsel there is nothing exhibited by way of amended statement of claim. By the requirements of Order 9 Rule 10, there is nothing in the main affidavit or the further affidavit that can be regarded as exhibiting the said amended statement of claim’.
So far the plaintiff has made 7 amendments since he filed his statement of claim, some oral, some written. At the rate the plaintiff is going on, if unchecked, he would, by piece meal, alter the entire statement of claim before the trial comes to an end, if ever it would, with this spate of adjournments. For the foregoing reasons the motion is dismissed for being misconceived. (Page 93 of the Records).
The said amended statement of claim which Appellant filed separately on 23/10/96 and sought to be deemed duly filed (and which the Court said was not exhibited) appears to be what the Records of Appeal carry on pages 67 to 72 of the Records, and was specifically pleaded on paragraph 5 of the further Affidavit of the plaintiff (Appellant)!
It is very strange and sad, that the learned Chief Judge played such an ignoble role at the trial of this case and he took upon himself to frustrate the Plaintiff. And when he (Plaintiff) was ‘boxed into a corner’ out of shock, and said he could not continue, and asked for stay of proceedings to appeal the decisions refusing to transfer the case and or amend the process, the Defence Counsel jumped at it, to ask the Court to dismiss the Suit. The trial Chief Judge appeared to be very glad to do so, and dismissed the Suit, without even giving the Plaintiff (Appellant) opportunity to address him (Judge) on the submission by the Defence Counsel! See pages 102 – 103 of the Records.
With due respect to the learned Chief Judge, I think he justified the fears of the Appellant that he was out to act an ignoble role in the case, which warranted the call by the plaintiff for him (trial Chief Judge) to recuse himself, from the trial. He truncated the case and breached Appellant’s rights of fair hearing. I therefore, resolve the issue for Appellant, as I see merit on this appeal, and allow it.
I hereby set aside the decision of the Lower Court, in the Suit No. HOW/253/94, delivered on 13/2/97 and order that the case be remitted to the Chief Judge of Imo State to be assigned to another Judge for hearing, on the merits.
The Respondents shall pay the Cost of this appeal to the Appellant, assessed at Fifty Thousand Naira (N50,000.00) only.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my Brother ITA G. MBABA J.C.A. I agree with his reasoning and conclusion. I also set aside the judgment of the Imo State High Court of justice in Suit NO. HOW/253/94 delivered on the 13th Of February 1997.
I also hereby order that the case be remitted to the Chief Judge of Imo State for reassignment to another Judge. abide by the consequential order made as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, J.C.A. I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt his orders as mine.
Appearances:
C. J. Onyeama (Mrs.) For Appellant(s)
E.C. Ekechukwu, Esq. for 5th Respondent.
1st to 4th Respondent are unrepresentedFor Respondent(s)
