HON. JUSTICE YAU DAKWANG (RTD) V. NATIONAL JUDICIAL COUNCIL & ORS (2011)

HON. JUSTICE YAU DAKWANG (RTD) V. NATIONAL JUDICIAL COUNCIL & ORS

(2011)LCN/5058(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 13th day of July, 2011

CA/J/224/2008

RATIO

ON GRANTING LEAVE TO AMEND THE STATEMENT OF CLAIM

In Oloto V. Attorney General and Anor (1957) 2 FSC and Udechukwu V. Okwuka (1956) 1 FSC 70 at 71 the Federal Supreme Court sitting on appeal granted leave to amend the statement of claim to create a cause of action where none existed but to bring same in line with the evidence on record. In Okafor V. Ikeanyi (1979) 3-4 SC 99 the learned trial Judge refused leave to amend the statement of claim because he had completed writing his judgment. The Supreme Court granted leave to the Appellant to amend the statement of claim so as to be in line with the evidence on record. PER. MONICA B. DONGBAN-MENSEM, J.C.A

PLEADINGS OF THE PARTIES

Pleadings are meant to prevent surprise, to allow the parties to prepare their respective cases both at the Court of trial and on appeal. For the above reasons the trial Court and the Court of appeal are bound by the pleadings of the parties. (See Wayne V. Ekwunife (1989) 12 SCNJ 99 at 110; Akintola V. Solane (1986) 2 NWLR (pt. 24). 598; African Continental Seaways Ltd. V. Nigeria Dredging Road and General Works Ltd. (1977) 5 S.C. 235 at 250; Temico Engineering and Co. Ltd V. S.B.N. Ltd (1995) 5 NWLR (pt. 397) 607.) To determine the issues in controversy, the whole tenure of the averments pleaded by the parties must be considered. (Refer: Emesie V. Onuaguluchi (1995) 12 SCNJ 120 at 131; Fadiallah V. Arewa iles Ltd. (1997) 7 SCNJ 202 at 217). For the above reasons all essential and material allegations of facts must be pleaded and proved at the trial. (See Atolagbe V. Shorun (1985) 1 NWLR (pt. 2) 350; Attorney General of Anambra State V. Onuselugu Enterprises Ltd (1987) 4 NWLR (pt 56) 547.) PER. MONICA B. DONGBAN-MENSEM, J.C.A

Before Their Lordships

MONICA B. DONGBAN-MENSEMJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

Between

HON. JUSTICE YAU DAKWANG (RTD)Appellant(s)

AND

1. NATIONAL JUDICIAL COUNCIL
2. GOVERNOR OF PLATEAU STATE
3. ATTORNEY-GENERAL OF PLATEAU STATE
4. CHIEF JUDGE OF PLATEAU STATERespondent(s)

MONICA B. DONGBAN-MENSEM, J.C.A (Delivering the Lead Ruling): The Appellant/Applicant herein simply referred to as the Applicant was at all material times a Judge of the High Court of Plateau State of Nigeria sitting in High Court Number 6 in Jos. He was sixth in the hierarchy of Judges in the state. In the course of performing his judicial functions the Applicant received two petitions concerning the discharge of his judicial functions. The 4th Defendant/Respondent directed that the Applicant should no longer conduct the proceedings and this was faithfully obeyed. Subsequent events showed that the then Governor of Plateau (2nd Respondent/Defendant) appointed the Applicant to act as the chief Judge of plateau state upon the removal of the former incumbent. This did not go down well with the National Judicial Council [1st Respondent/Defendant] the body that is constitutionally vested with supervisory and disciplinary powers over Judicial officers including the Applicant. The Applicant was initially suspended from the post of Acting Chief Judge and compulsorily retired from service with immediate effect based on the decision of the National Judicial Council [1st Defendant/ Respondent] on 5th January 2007.
On 16th January 2007 the Appellant/Applicant instituted an action in the Federal High Court of Justice, Jos, Plateau State challenging his suspension and compulsory retirement from office. Pleadings were filed and exchanged. Oral and documentary evidence was called by the plaintiff. The Respondents also submitted documentary evidence. Thereafter, learned counsel to the parties submitted written addresses. The Applicant’s claims were dismissed by Hon. Justice C. E. Archibong on 22nd November 2007. A notice of Appeal with nine grounds was filed on 23rd November 2007.
On 16th April 2010 G. S. Pwul of learned counsel filed a motion on Notice pursuit to Order 7 Rule 1, Order 4 Rule 7, and Order 6 Rule 4 of the Court of Appeal Rules 2007 praying for the following reliefs against the Defendants/Respondents.

1. AN ORDER granting the Applicant/Appellant leave to amend the name of the 4th Defendant from “Acting Chief Judge of Plateau State” to read “the Chief Judge of Plateau State.”
2. AN ORDER granting the Applicant leave to raise and argue on appeal fresh issues which were not raised in the Applicant/Appellant’s pleadings before the lower Court to wit:
i. That the presence and participation of members of the Investigative Panel i.e. Hon. Justice Umaru Abdullahi, CON, Hon. Justice C.O. Jacobs, Hon. Grand Khadi Muhammad S. Abubakar and Mrs. Rakiya Sarki Ibrahim at the meeting of the 1st Defendant/Respondent of 20th of December, 2006 constituted a violation of the Applicant/Appellant’s right of fair hearing.
ii. That the participation of the following legal practitioners:
a. Chief Bandele Aiku, SAN;
b. Chief Anthony O. Mogboh, SAN; and
c. Prince Lanke Odogiyon;

Inter alia, at the meeting of the 1st Defendant/Respondent of 20/12/2006 is unconstitutional and therefore, the meeting and the decision taken therein are null and void.
iii. The Plaintiff was denied the opportunity to make representations on the report of the Investigative Committee of the 1st Defendant/Respondent before same was accepted and acted upon by it.
3. AN ORDER granting the Applicant leave to amend his Statement of Claim in terms of paragraphs 25 (a), (b) and (c) of Exhibit “A” to bring it in line with the evidence led at the trial and also to reflect and plead the aforesaid fresh issues.
4. AN ORDER granting the Applicant leave to file and argue Additional Grounds of Appeal.
5. AN ORDER deeming the additional grounds of appeal as having been duly and properly filed and served.
The application is supported by a thirty paragraphs affidavit deposed to by S. D. Samchi a Legal Practitioner in the chambers of Messrs G. S. Pwul and partners. The affidavit was sworn on 16th April 2010 at the Court of Appeal Registry in Jos, Plateau State setting forth the grounds for bringing the application. To the application is annexed the “Plaintiffs Amended Statement of Claim” as Exhibit “JYD1” with thirty-one paragraphs. Exhibit “JYD2” is the three additional grounds of appeal to be argued upon grant of leave by this Court.
On 17th May 2010 the 1st Respondent deposed to a 6- paragraph counter- affidavit detailing reasons as to why the reliefs sought by the Applicant should not be granted. This prompted the Applicant to file a further and better Affidavit, deposed to by S. D. Samchi Esq. on 15th June 2010. A Counter Affidavit of 6 paragraphs was sworn to by Bulus Lenge, Litigation Secretary in the plateau state Ministry of Justice, Jos on behalf of the 2nd – 4th Respondents on 10th May 2010 to which was annexed the Applicant’s written address submitted at the Federal High Court Jos marked as Exhibit “A” dated 16:7:2007 and the letter of Compulsory Retirement from Service dated 5th January 2007 as Exhibit “B”. The Applicant responded with another 14 paragraph “Further and Better Affidavit in support of motion on notice dated 15th April, 2010” in answer to the issues raised by the 2nd – 4th Respondents in their Counter Affidavit, deposed to by S. D. Samchi Esp. of counsel on 18th May 2010.
On the strength of these affidavits/ counter affidavits this Court ordered written addresses to be filed and exchanged amongst learned counsel for the parties in this appeal.
The learned Counsel to the Applicant submitted a written address on 13th July 2010. The 1st Respondent did so on 13th September 2010. The learned counsel to the Applicant responded by filing a reply on points of law on 20th September 2010.
The 2nd – 4th Respondents learned Counsel also presented a written address on 27th July 2010. The learned counsel to the Applicant filed a reply on points of Law on 24th August 2010. Applicant’s Counsel identified issues for determination at page 3 paragraph 3.0.1

APPELLANT/APPLICANT
The issues for determination are set out in the Appellant/Applicants written address at Page 3 Paragraph 3.0.1

1ST RESPONDENT
The learned Counsel to the 1st Respondent did not distil any issue for determination hence it is presumed that there is no challenge to the issues set out by the Applicant’s Counsel for determination.

2ND – 4TH RESPONDENTS
The learned Counsel to 2nd-4th Respondents set out the following issues for determination:

1. Whether the Appellant/Applicant did not have the opportunity of raising issues on Exhibit “K”.
2. Whether indeed the Appellant/Applicant did not raise issues on Exhibit “K” at the lower court including the so-called fresh issues which he now seeks to raise which were all resolved by the trial Court.
3. Whether the Appellant/Applicant has made out a case to justify the grant of the reliefs he is seeking”.

APPELLANT/APPLICANTS LEARNED COUNSEL’S ARGUMENTS

ISSUE ONE:

“The issue is that Exhibit “K” is already in evidence. Whether the amendment of the statement of claim should not be granted by this Court. Learned Counsel defines the word “amendment” by reference to the case of NDDC V. Precision Associates Ltd (2006) 16 NWLR (pt 1006) 527 at 555 paragraph B – 6. Counsel refers to sections 6 and 240 of the constitution of the Federal Republic of Nigeria 1999. Section 15 and 23 of the court of Appeal Act cap C36, Laws of the Federation of Nigeria 2004. Order 4 rule 1 of the Court of Appeal Rules 2007, Alamieyeseigha V. Igonniwari (No. 1) (2007) NWLR (pt 1034) 506 at 517-518; Diamond Bank Ltd V. Ugochukwu (2008) NWLR (pt 1067) 1 at 36 paragraphs 6-11 and Okundaye V. Texaco overseas (Nig) unlimited (2000) 6 NWLR (pt 710) 730 at pages 737 – 738 paragraphs F-A and also cited as authority that this Court has the unfettered discretion to grant the amendment. That the overriding consideration should be the desire to do substantial justice to the parties.

Learned Counsel further argues that the amendment seeks to aver the facts in paragraphs 26(a), (b) and (c) of Exhibit “A” and “K”. Counsel refers to the cases of Equity Bank (Nig.) Ltd V. Dauda (1999) 10 NWLR (pt 621) 147 at 157 and Laguro V. Toku (1992) 2 NWLR (pt. 223) 278 at 292 paragraphs F-H, 287 paragraphs D-G and p. 294-295 paragraphs H-A to buttress this proposition. Counsel urges this Court to have regard to whether the amendment sought will bring the pleadings in line with the evidence already adduced or enable the use of such evidence; whether the amendment calls for additional evidence and requires the adverse party to adduce evidence; whether the amendment will settle the real and crucial issues in controversy between the parties and lastly, whether such amendment if permitted will overreach or occasion injustice to the adverse party such that cannot be addressed by costs. Learned Counsel urged that this prayer should be granted…

ISSUE TWO
“Issue two is whether it will not accord with the interest of justice to grant the prayer which seeks to raise and argue on appeal fresh issues based on the contents of Exhibit “K”, which is part of the record of this Honourable Court”.
Learned Counsel generally, it is not permissible to raise on appeal a fresh question or issues that were not raised at the trial Court or considered by the learned trial judges. Counsel cited Attorney General of Oyo State V. Fairlakes Hotel Ltd (1998) 5 NWLR (pt. 92) 1; Akpene V. Barclays Bank (1997) 1 SC 47 and Ardo V. Ardo (1998) 10 NWLR (pt 571) 700 at 706 as authority that leave can be granted in special circumstances to raise fresh issues at the hearing of the Appeal. This is particularly so where the issue raised involves the interpretation of the documents where no further evidence is required, (Refer: Shonekan V. Smith (1964) 11 NWLR 161 at 167.) Counsel argued that this fresh issue relates to the fact that the Applicant did not plead certain areas of the breach of his fundamental rights which involved the participation of unqualified or constitutionally disqualified persons from being at the meeting of the 1st Respondent which led to the Appellant’s compulsory retirement from service. The Appellant knew of this fact only when the minutes were tendered and marked as Exhibit “K” at the Court of trial. Counsel submitted that any issue involving fair hearing is a question of substantial point of law. (Reference was made to section 36(1) of the 1999 Federal Constitution, Alamieyeseigha V. Igoniwari (wo. 1) (Supra) at p. 522, and Attorney – General of Oyo State V. Fairlakes Hotel (Supra); Chris V. Ononuju (2008) 9 NWLR (pt 1093) 642 at 654 paragraph and GTB Plc V. Fadeo Ind. Ltd (2007) 7 NWLR (pt. 1033) 307 at 323 paragraphs.) That the application ought to be granted to prevent miscarriage of justice since this Court has all the evidence which is needed to completely support the new contention.

ISSUE THREE
“Issue three is whether it is just and proper for this Honourable Court to grant the Applicant leave to file and argue additional grounds of Appeal. (Refer was made to the case of Aderounmu v. Oluwu (2000) 4 NWLR (pt 652) 253 at 265 and Chagauray V. Yakubu (2006) 3 NWLR (pt 966) 138 at 155) as authorities that enable this Court to grant leave to file and argue additional grounds of appeal. That seeking leave to file additional grounds of appeal is a condition precedent to the grant of this application. (Refer was also made to Obioha V. Duru (1994) 8 NWLR (pt. 365) 631 at 646-647.) Counsel urged that the prayers on the motion paper should be granted in favour of the Applicant.”

ARGUMENT BY LEARNED COUNSEL TO THE 1ST RESPONDENT
“The learned Counsel is not opposed to the grant of prayer 1 but opposes prayers 2-5 on the motion paper. Counsel concedes however that amendment of the pleadings may be done with leave of Court at any time, citing Mamman V. Salaudeen (2005) 18 NWLR (pt 958) 478 at 517 and Diamond Bank Ltd V. Ugochukwu (2008) 1 NWLR (pt 1067) 1 at 36-37”.

Learned Counsel Sets out the conditions that must exist before the prayers could be granted; that there must exist:
(1) A substantive point of substantive law or procedure in law to be entitled to the reliefs prayed for.
(2) All the facts in support of the new issues or questions must be before the Court, and
(3) A proper application of such issues must be raised before the Court of Appeal.

The following authorities were referred to in support of argument:
1. Atoyebi V. Governor of Oyo State (1994) 5 NWLR (pt 334) 280.
2. Uhrumwangbo V. Okojie (1989) 5 NWLR (pt 122 page 7) and
3. Bankole V. Pelu (1995) 8 NWLR (pt 55) 179.

Learned Counsel’s contention is that where the new points sought to be raised will give a totally different character to the case argued before the trial Court, or where the point cannot be resolved without calling additional evidence, or where it will result to injustice to the other side, leave will be refused, (See Uor V. Loko (1988) 2 NWLR (pt 77) 430 at 438 at 440; Dweye V. Iyomahan and others (1983) 8 S.C 76 and Mogaji vs. Cadbury Nig. Ltd. (1985) 7 S.C 59 at 88.) Learned Counsel draws attention to paragraphs 22-26 of the statement of claim and the reactions of the 1st Defendant/ Respondent as traversed in paragraphs 4-8 of the statement of defence. Counsel further refers to the submissions of the learned Counsel to the Applicant before the Federal High Court and to the provisions of section 132 of the Evidence Act 1990 to wit, that the section admits of exceptions to the law that oral evidence is not to be used to contradict or vary documentary evidence.

Counsel argues that in this case, there would be the need for 1st Respondent to lead evidence on the fresh issues if the amendment sought is granted. That the new issues will give a new or different character to the case presented and fought before the trial Court hence leaves should be refused. Counsel further contends that a party is not at liberty to change his/her case at any time but must be consistent in pleading and proving same at the trial, citing Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269. Learned Counsel recognises that the prayers the Applicant is asking for are discretionary remedies which are not usually granted as a matter of course or routine. It is therefore incumbent on the Applicant to show cogent and compelling reasons why this application should be granted. Counsel submits that the Applicant has failed to show he is entitled to these discretionary remedies and the application should be dismissed.

APPLICANTS REPLY

Learned Counsel to the Applicant submits on points of law, that the amendment, if granted will not have an over reaching effect on the 1st Respondent’s case. That a party making the grave allegation of overreaching must place before the Court sufficient materials to sway the Court and the party must demonstrate and establish how he or she will be over reached (Refer: H.N.B Plc V. I.B.W Enterprises Nig. Ltd (1998) 6 NWLR (pt 554) 446 at 454.) Counsel argues that for this application to succeed or fail it must be based on the materials placed before the Court. Learned Counsel refers to Exhibit “K” containing the deliberations of the 1st Respondent tendered before the trial Court. That there was no allegation of fraud, illegality, intimidation, or want of due execution under section 132 of the Evidence Act 1990 hence there is no need for the 1st Respondent to lead additional evidence if this application is granted. Counsel contends that the depositions in Applicant’s affidavits should be taken as unchallenged and to be acted upon by this Court, (See Adesina v. The Commissioner (1996) 4 SCNJ 112 at 119 and Attorney General of Anambra State V. Okeke (2002) 5 SCNJ 318.)

The Applicant’s learned Counsel further submits that the grant of the prayers will not change or alter the character of the case presented before the lower Court. The claim was the infringement of the Applicant’s fundamental rights which were violated by the 1st Respondent. Reference was made to paragraphs 26 (i) and (ii) of the statement of claim and the case of Akaninwo V. Nsurim (2008) 9 NWLR (pt 1093) 439 at 494 to show that the application if granted shall only bring the amended statement of claim in line with the evidence on record. Counsel contends that the cases of Uor V. Loko (1988) 2 NWLR (pt. 77) 430 and Ajide V. Kelani (1985) 3 NWLR (pt 12) 248 are inapplicable since they were decided on facts diametrically different from the facts of this application. Counsel urges that this application be granted.

2RD, 3RD AND 4TH RESPONDENTS’ COUNSEL’S SUBMISSIONS

ISSUE ONE
On issue one the 2nd-4th Respondent’s learned Hon. Attorney-General (Plateau State) contends that the learned Counsel to the Applicant had all the opportunities of raising issues on Exhibit “K” at the Court of trial. The Hon. Attorney-General however concedes that Exhibit “K” was introduced by the 1st Respondent at the Court of trial during hearing but queries why the learned Counsel to the Applicant did not amend the statement of claim at the Court of trial and now seeks leave to do so in the Court of Appeal. That the Applicant is a judicial officer and was represented by a legal practitioner. Moreover Exhibit “K” was tendered without objection. Therefore, since the Applicant had the opportunity to have amended the pleadings but did not, this prayer should not be granted to him at the appeal stage.

ISSUE TWO
That indeed the Applicant raised issues on Exhibit “K” including the so called fresh issues he now seeks to raise which were all resolved by the trial Court. The Hon. Attorney-General argues that the 2nd-4th Respondents annexed Exhibit “A” to show that the learned Counsel to the Applicant had exhaustively addressed issues concerning Exhibit “K” at the Court of trial. Issue number two was indeed formulated on Exhibit “K”. This constituted an admission against interest, citing Buhari V. INEC (2008) 19 NWLR (pt 1120) 246 at 421 Counsel Urges the Court to refuse this application.

ISSUE THREE
Learned Hon. Attorney-General submits that the Applicant had not made out a case to justify the grant of the reliefs he is seeking. Learned Attorney-General however concedes to the principles that guide amendment of pleadings adumbrated by learned Counsel to the Applicant but maintains that the Applicant has failed to justify the grant of the reliefs sought. That the only way of resolving the fresh issues sought to be raised is by calling oral evidence, (Refer: Dahiru V. Kamala (2007) 11 NWLR (pt. 723) 224 at 233-234 and Mamman V. Salaudeen (2005) 18 NWLR (pt 958) 478 at 517.) It is then contended that if the amendment is allowed it will change the nature and character of the claim and will be inconsistent with the testimonies of the witnesses on which the parties fought their respective cases at the trial Court, These cases: Ademuyiwa V. UBA Ltd (1990) 8 NWLR (pt 468) 567 at 576-578; Iweka V. SCOA (Nig) Ltd (2000) 7 NWLR (pt 664) 325 at 341 pt D-E and Asabora V. Aruwayi (1974) 4 SC 11-9 at 124, are relied on. Counsel urged that this application should be dismissed.

APPLICANT’S REPLY ON POINTS OF LAW TO THE ADDRESS OF 2ND-4TH RESPONDENTS COUNSEL’S ADDRESS

Learned Counsel replies that at the time of filing the suit in the lower Court the Applicant was not aware of the existence nor was he in possession of Exhibit “K”, the 1st Respondent’s proceedings held on 20:12:2006 hence this could not be pleaded. That issues are joined on the parties’ pleadings and not final addresses, (Refer: Metalimpex V. A.G Leventis Ltd (1976) 10 NSSC 76 and heerge V. Dominion Floor Mills (1963) 6 NSCC 54.) This has therefore remained a fresh and sole issue to be determined in this appeal. The case of Alsthom S.A. V. Saraki (2000) 14 NWLR (pt 687) 415 at 424 is cited in argument as authority to grant leave to amend the statement of claim. That the Applicant made a case for the grant of these prayers since Exhibit “K” is already evidence on record. The following cases are cited in argument; Dokubo Asari V. F.R.N (2007) 152 LRCW 116 at 145; Adesina V. Osogbo (1996) 4 SCNJ 111; Attorney General of Anambra State V. Okeke (2002) 5 SCNJ; Stephen Lawson Jack V. SPDCNN Ltd (2002) 7 SCNJ 121 and Dahiru V. Kamala (2007) 11 NWLR (pt 723) 224 at 233-234. Counsel submits that the grant of this application will not change the character of this case bearing in mind that the Respondents at the trial Court did not call any witness.
Counsel argues that oral evidence cannot be used to contradict the contents of Exhibit “K” citing UBN Ltd V. Ozigi (1994) 3 NWLR (pt 333) 385. The learned Attorney-General urges that this application be not granted.

In the determination of the issues in controversy, issues one and three set out in the written address of learned Counsel to the Applicant can conveniently be taken together since the grant of one will follow the other. I shall therefore consider both issues together and issue two separately.

A passionate consideration of the pleaded facts, oral and documentary, evidence on record coupled with the addresses of the respective Counsel and the judgment of the Court, disclose that Exhibit “K” was before the trial Court and forms part of the record of the appeal proceedings. What is to be construed if leave is granted the Applicant is the effect of the contents of Exhibit “K” tendered at the lower Court from the bar on the outcome of the appeal. No oral evidence will be needed to vary, contradict, alter, or add to the contents of Exhibit “K”, this much the learned Counsel to the Applicant concedes. (Refer: Union Bank of Nigeria vs. Sax Nig Ltd. (1994) 9 SCNJ; Wayne (W.A.) Ltd V. Ekwunife (1989) 12 SCNJ 99 and Union Bank of Nigeria Ltd. V. Ozigi (1994) 3 SCNJ 41).

Moreover, argument by learned Counsel on appeal should be confined to plead facts. (See Idahosa V. Oronsaye (1959) 4 FSC 166 at 170-171 cited with approval in Atanda V. Ajani (1989) 2 NSCC 511 at 526.) The appeal is against the judgment of the Federal High Court. Only the Court of Appeal has exclusive jurisdiction to entertain an appeal against the judgment of the Federal High Court under section 240 and 241 of the Constitution of the Federal Republic of Nigeria 1999 as amended. For this reason it has become fashionable to apply to the Court of Appeal to grant leave to amend pleadings if the purpose is to bring same in line with the evidence already pleaded and admitted in the trial Court. In Johannes England V. J Mope Palmer (1955) 14 WACN 659 the plaintiff founded his claim in trespass against the Defendant on ownership not possession. The trial Judge entered judgment in favour of the Plaintiff and awarded him damages against the Defendant. The Defendant appealed to the West African Court of Appeal (WACA) arguing that although the plaintiff had not pleaded possession which was an essential ingredient or element to prove trespass, the learned trial Judge had founded judgment in his favour. The West African Court of Appeal allowed the Plaintiff to amend paragraph 1 of his statement of claim to add the phrase “and in possession” after the word “owner”. The Court gave the following reasons at page 660-661

“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 1 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 IVU. Quartey and Another (5) that “the court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties.”

The real issues in controversy are contained in Exhibit “K” tendered at the Court of trial. The Applicant challenged the constitutionality of his suspension and subsequent compulsory retirement. All these facts are on record. A party can lead evidence on facts pleaded by the opponent. (See Morohunfola V. Kwara College of Technology (1990) 7 SCNJ 51 at 64. Agu vs. Ikewibe (1991) 4 SCNJ 56 at 74; the Steuch Publishing Co. Ltd V. Alhaji Ajaghe Mokeferi (1989) 2 SCNJ 15 at 159; Adenuga V. Lagos Town Council 13 WACA 125 and Mandilas and Karaberis Ltd V. Otokiti (1963) 1 ALL NLR 22 at 27-28.) Moreover, the issue of Exhibit “K” was canvassed at the trial. ENGLAND V. PALMER is authority that leave can be granted an Appellant to amend the statement of claim by an Appeal Court so as to incorporate the evidence on record.

The fact set out in paragraphs 1-14 of the sworn affidavit of S.D. Samchi Esq. that at the time the matters in controversy arose there was an Acting Chief Judge but at the moment there is a substantive Chief Judge of Plateau State has not been countered by the Respondents, neither is the 1st Respondent opposed to the grant of that prayer. Order 6 rule 15 of the Court of Appeal Rules 2011 provides that: “A notice of appeal may be amended by or with the leave of the Court at any time.” Prayer one on the motion paper is granted. The 4th Respondent is now the Chief Judge of Plateau state. The notice of Appeal and statement of claim shall be amended such that the 4th Respondent shall be “The Chief Judge of Plateau State”. Leave is further granted the Applicant to file and argue the three additional grounds of appeal set out in the motion paper as Exhibit “JYD 1” and “JYD 2” respectively.

LEAVE TO RAISE AND ARGUE FRESH ISSUES ON APPEAL
The law is that material and essential issues for determination by the trial Judge must be set out in the pleadings which constitute notice of issues the parties intend to canvas at the hearing. (See Obmiami Brick and Stones Nig. Ltd. V. ACB (1992) 3 SCNJ 1 at 35; Uwegbe V. Attorney General of Bendel State (1986) 1 NWLR (pt. 16) 303 at 317.) Under pleadings a reference to a document brings into the pleading the whole contents, (See Abel Bros V. Niger Insurance (1974) 4 V.I.R 12 (pt 3) 317/327 or (1976) NWLR 1 at 10-11 and Lawal vs. G.B. Ollivant (1972) 3 SCNJ 124 at 130, and Monier Construction Co. Ltd V. Azubike (1990) 5 SCNJ 75. But this does not apply to other documents. See Akande V. Allega (1988) 7 SCNJ (pt. 2) 279; Thanni vs. Lemonu (1977) 2 S.C 89 at 115-116 and consolidated Breweries V. Aisowieren (2002) FWLR (pt 116) 959.)
Pleadings are meant to prevent surprise, to allow the parties to prepare their respective cases both at the Court of trial and on appeal. For the above reasons the trial Court and the Court of appeal are bound by the pleadings of the parties. (See Wayne V. Ekwunife (1989) 12 SCNJ 99 at 110; Akintola V. Solane (1986) 2 NWLR (pt. 24). 598; African Continental Seaways Ltd. V. Nigeria Dredging Road and General Works Ltd. (1977) 5 S.C. 235 at 250; Temico Engineering and Co. Ltd V. S.B.N. Ltd (1995) 5 NWLR (pt. 397) 607.) To determine the issues in controversy, the whole tenure of the averments pleaded by the parties must be considered. (Refer: Emesie V. Onuaguluchi (1995) 12 SCNJ 120 at 131; Fadiallah V. Arewa iles Ltd. (1997) 7 SCNJ 202 at 217). For the above reasons all essential and material allegations of facts must be pleaded and proved at the trial. (See Atolagbe V. Shorun (1985) 1 NWLR (pt. 2) 350; Attorney General of Anambra State V. Onuselugu Enterprises Ltd (1987) 4 NWLR (pt 56) 547.)
To determine the matters in controversy in this application reference has to be made to paragraphs 11-31 of the statement of claim to be found at page 7-11 of the records for the appeal. The 1st Defendants amended statement of defence filed on 21st March 2007 is at page 70-100 of the records.
The 2nd-4th Respondents Joint Statement of defence was filed 23rd March 2007 See paragraph 1-17 of the Joint Statement of Defence at pages 117-119 of the record.
From a composite reading of the pleadings of the parties it becomes crystal clear that the issue as to what transpired on 20th December 2006 during the meeting of the Respondent that subsequently led to the compulsory suspension and retirement of the Applicant from service as a judicial officer was copiously pleaded and traversed by the parties in their respective pleadings and constituted a live issue at the hearing. The learned Counsel to the Applicant formulated issues for determination by the learned trial Judge at p. 137-138 of the printed record: These are hereby reproduced for the ease of reference:

”ISSUES FOR DETERMINATION
It is respectively submitted that the issues for determination are as follows:

1. Whether the panel of Investigation set up by the 1st Defendant did not violate the Plaintiff’s right of fair hearing enshrined in Section 35 of the Federal Republic of Nigeria, 1999 in that:
a. No specific allegation of misconduct was levelled against him;
b. The Plaintiff was only invited to the sitting of the Investigating Committee more in the capacity of a witness.
c. The Investigating Committee went outside its term of reference.
ii. Whether in considering and accepting the report of this Committee set up by the 1st Defendant in its meeting of 20th December, 2006 as shown in Exhibit “K”, the 1st Defendant did not violate the Plaintiff’s right of fair hearing in that:
a. The report of the Committee was not given to the Plaintiff.
b. The Plaintiff was not given the opportunity to be heard on the report.
c. Members of the committee who had made the recommendation were also present and participated in the deliberation of the 1st Defendant on 20th December 2006.
iii. If the answers to the above issues are in the affirmative, whether the Plaintiffs compulsory retirement by the 2nd Defendant by the letter dated 20th December, 2006 is not null and void, of no effect whatsoever, having been based on the outcome of the meeting of the 1st Defendant of 20th December, 2006.
iv. Having regards to the pleading and totality of evidence before the Court, whether the Plaintiff is not entitled to all the reliefs claimed in paragraph 31 of his Statement of Claim”.
The 1st Respondent’s learned Counsel also identified issues for determination at page 163 of the Printed record

ISSUES FOR DETERMINATION
“The 1st Defendant contends that the following issues arise for determination in this suit.

1. Whether the 1st Defendant acted in accordance with the Provisions of the Constitution of the Federal Republic of Nigeria when it constituted an investigation committee into the issue of impeachment of Governor of Plateau State to inquire whether Judicial Officers involved (the Plaintiff inclusive) has misconducted themselves.
2. Whether the 1st Defendant accorded the Plaintiff a fair hearing before it reached its conclusion to advise that the Plaintiff be compulsorily retired from service and whether his compulsorily retirement is valid.
3. Whether the Plaintiff is entitled to the reliefs sought”

2nd-4th Respondent’s issues for determination are at page 180 of the printed record.

ISSUES FOR DETERMINATION
“1. Whether the Plaintiff knew the allegations against him and whether he was accorded a right of fair hearing by the 1st Defendant?
2. Whether the 1st Defendant Investigating Committee went out of it terms of reference?
3. Whether the Plaintiff failed to prove his case and thus not requiring the defence to adduce oral evidence?

Learned Counsel to the Applicant responded to these issues in the Reply address filed by Counsel.
The argument of learned Counsel to the Applicant touches on the competence, albeit the composition of the NJC that deliberated on the proceedings leading to the compulsory retirement of the Applicant from judicial service. This being a constitutional issue it can be raised on appeal as a fresh issue. Furthermore a party can be allowed to put forward a new argument on a matter which was or upon facts which were before the Court of trial upon grant of leave by the appeal Court. (See Seismograph Services V. Eyuafe (1976) 1 FNLR 162 at 170; Fadiora V. Abadebo (1978) 1 LRN 97 at 108 and Salati V. Shehu (1986) 1 SC 332.) The fresh issue raises a constitutional issue of important, substantive and procedural law. I hold that since Exhibit “K” was before the learned trial judge leave is granted the Applicant to canvass this fresh issue of constitutional substantive law and practice on appeal. Accordingly all the prayers are granted. It is hereby so ordered.

UZO I. NDUKWE-ANYANWU J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother Dongban-Mensem, JCA. I agree with the reasons and final conclusions in the lead judgment. I also abide by all the consequential orders contained therein.

PHILOMENA MBUA EKPE J.C.A: I had a preview of the lead Judgment delivered by my learned brother Monica Dongban Mensem, JCA. I agree with her reasoning and conclusions and also abide by her orders herein.

Appearances

G.S. Pwul Esquire (with S.D. SAMCHI)For Appellant

AND

ROTIMI OGUNESO
E.G. PWAJOK, Attorney-General Plateau State (with OLIVIA DAZYAM A.DPP, Ministry of Justice Plateau State)For Respondent