MATTHEW OLOKPO & ANOR v. BENUE RURAL DEVELOPMENT AGENCY & ANOR
(2019)LCN/12577(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/J/246/10(R)
RATIO
APPEAL: WHETHER A PARTY CAN CHANGE HIS PLEADINGS
“A party is bound by his pleading and the law does not permit a party to make a case on appeal different from his case before the trial Court. An appeal is not a new action but a continuation of the dispute in the original action and is therefore a complaint against a decision arising from the matter in dispute. For this reason, a party is not allowed to change the case he made right from the trial Court. See Ogundare V Ogunlowo (1997) 6 NWLR (Pt. 509) 360, PDP V INEC (2014) 17 NWLR (Pt. 1437) 525,568 and Odom v PDP (2015) 6 NWLR (Pt. 1456) 527, 550.” PER JOSEPH EYO EKANEM, J.C.A.
APPEAL: THAT PARTIES ARE BOUND BY THEIR PLEADINGS
“It is now quite pedestrian that parties are bound by their pleadings; American Cyanamid co. v Vitality Pharmaceuticals Ltd (1991) LPELR-461(SC); Agala v Okusin (2010) LPELR- 221(SC). For this reason, parties cannot midway change their version of the complaint they start off a matter with. Furthermore, an appeal is a continuation of the matter before the lower Court by way of a re-hearing to enable the Appellate Court evaluate the evidence that has been adduced; Osuji v Ekeocha (2009) LPELR- 281600; Ecobank Nigeria Ltd v Honeywell Flour Mills Plc (2018) LPELR-45124(SC). Therefore, a party has to be consistent in maintaining his case. He cannot change the case made out in the trial Court on appeal; IM(Nig) Ltd v Pegofor Industries Ltd (2005) LPELR-1525(SC); Nwaogu v Atuma (2012) LPELR-19648(SC). The goal post is usually not changed in the middle of the game. Otherwise, ascertaining a winner would be near impossible task.” PER ONYEKACHI AJA OTISI J.C.A
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. MATTHEW OLOKPO
2. JOHN UBANYI Appellant(s)
AND
1. BENUE RURAL DEVELOPMENT
AGENCY (BERDA)
2. BENUE STATE GOVERNMENT
AND
1. ISAAC TYOYONGO
2. BENUE RURAL DEVELOPMENT AGENCY (BERDA) Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated 15th December, 2017 and filed on 21 December, 2017, the appellants/applicants prayed for the following reliefs:
i. AN ORDER OF THIS HONOURABLE COURT striking out or deleting the name of Isaac Tyoyongo as party in this appeal No: CA/J/246/2010.
ii. AN ORDER OF THIS HONOURABLE COURT joining the Benue State Government as a Respondent to this appeal No: CA/J/246/2010.
iii. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellants/Applicants to amend the notice of appeal in this appeal No: CA/J/246/2010 filed on 19/5/2010 to reflect the striking out and joinder and by listing BENUE RURAL DEVELOPMENT AGENCY (BERDA) as 1st Respondent and the BENUE STATE GOVERNMENT as the 2nd Respondent in the appeal as shown in the proposed amended Notice of appeal exhibited to the affidavit in support of this application as Exhibit JS04.
iv. AN ORDER OF THIS HONOURABLE COURT deeming the amended notice of appeal and the Appellants? brief of argument already filed as properly filed and served appropriate fees having been paid.
AND FOR SUIT FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstances?.
The grounds for the application are set out on the motion paper as follows:
i. Isaac Tyoyongo as one of the parties in this appeal is deceased and there is need to strike out or delete his name from the processes already filed and to amend the notice of appeal to reflect the present state of affairs.
ii. Isaac Tyoyongo (now deceased) at all times material to the case leading to this appeal was in the employment of Benue State Government deployed to Benue Rural Development Agency and therefore an agent of Benue State Government and acted in his capacity as such.
iii. The Benue Rural Development Agency is an agent and/or agency of the Benue State Government.
iv. By Order 7 Rule 8 of the Court of Appeal Rules 2016, a notice of appeal can be amended by or with the leave of this Hon. Court at any time.
v. The Appellant’s brief of argument has been filed but reflects the parties as contained in the amendment being sought.
vi. No injustice will be occasioned by the grant of this application.
vii. The Respondents will not be prejudiced by the grant of this application.
The application is supported by an eight – paragraph affidavit deposed to by the 1st appellant/applicant with the consent of the 2nd appellant/applicant. Attached to it are four exhibits, viz;
(i) Exhibit JS01 – the notice of appeal;
(ii) Exhibit JS02 – the front page of the record of appeal;
(iii) Exhibit JS03 – A letter of the Bureau of Rural Development and Cooperative dated 14/12/2017 confirming the death of the deceased/1st respondent together with a letter of condolence to the family of the deceased signed by the Director, Administration and Finance of the Bureau (dated 5/8/2011); and
(iv) Exhibit JS04 – The proposed amended notice of appeal.
In response, the 2nd respondent filed a counter – affidavit of four paragraphs deposed to by one Josephine Atoakaa, a litigation registrar in the Chambers of the Honourable Attorney ? General, Benue State.
When the motion came up for hearing on 16/1/2019, M.O. Ozueh, Esq., for appellants/applicants referred to the motion and the affidavit in support thereof which he relied upon in urging the Court to grant the application.
S.T. Suleh, Esq. (Assistant Director, Legal Drafting – Ministry of Justice, Benue State) in opposing the application relied on the counter – affidavit. He contended that the appellants/applicants were seeking to substitute the Benue State Government with the deceased 1st respondent. He stated that the 2nd respondent (BERDA) as employer of the deceased 1st respondent had power to employ and discipline him. He relied on Sections 3 and 4 of the Benue Rural Development Agency Law. He posited that by paragraph 6(b) of supporting affidavit, the appellants/applicants conceded that the 2nd respondent was the employer of the deceased 1st respondent. He urged the Court to dismiss the application while granting reliefs (i), and (iii) and (iv) mutatis mutandis.
Ozueh, Esq., for appellants/applicants referred to paragraph 6(c) of the appellants/applicants’ affidavit which he said had not been denied. He submitted that paragraph 6(b) of the supporting affidavit is not a concession but a re – enforcement of the fact that the 2nd respondent is an agency of the Benue State Government, which he said is a disclosed principal.
He referred to Exhibit JS03 attached to the supporting affidavit.
It is common ground between the parties to this application that the original 1st respondent in the appeal is dead and has therefore gone beyond the jurisdiction of this Court. He therefore ceased to have any legal personality. Counsel on both sides are ad idem that his name be struck out of the appeal on that account. Consequently, I hereby grant relief (i) on the motion paper and strike out the name of Isaac Tyoyongo from this appeal.
It is prayer (ii) that is the main bone of contention between the parties. The prayer, it bears repeating, is for an order of this Honourable Court joining the Benue State Government as a respondent to this appeal.
The application is founded on the following grounds;
(i) That the original 1st respondent is dead;
(ii) That the deceased was in the employment of the Benue State Government deployed to the 2nd respondent (BERDA) an agency of the Benue State Government.
Order 15 Rule 2 of the Court of Appeal Rules states
When it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.
In paragraph 6(c) of the affidavit in support of the motion on notice, it is deposed,
‘That at all times material to the case leading to this appeal Isaac Tyoyongo (now deceased) was in the employment of Benue State Government, deployed to Benue Rural Development Agency and an agent of Benue State Government who also acted in his capacity as such.’
The deposition is denied in paragraph 3(d) of the counter – affidavit of the 2nd respondent as follows:
‘That at all times material to the motoring accident leading to this appeal, the 1st Respondent (deceased Isaac Tyoyongo) was not in the employment of the Benue State Government and was not driving the motor vehicle at the instance or for and on behalf of the Benue State Government.’
The employment of the deceased by the Benue State Government having been denied, it behoved the appellants/applicants to prove the same by exhibiting a copy of the deceased’s letter of employment by the Benue State Government. Having not done so, the appellants/applicants have not placed a crucial material before the Court to enable the Court exercise its discretion in their favour.
The result of the foregoing is that the deposition that the deceased was employed by the Benue State Government is an assertion without proof. It can not sustain a relief.
Furthermore, in paragraphs 3 and 7 of the statement of claim of the appellants/applicants (pages 5 ? 8 of the record of appeal) it is averred as follows:
3. The 1st Defendant is a civil servant attached as a driver to the Benue Rural Development Agency, Makurdi within jurisdiction.
7. The 1st plaintiff aver that the 1st Defendant who at all times relevant to this suit was on the employment of the 2nd Defendant as a driver
The averment in paragraph 3 supra. that the deceased was a civil servant can not be interpreted to mean that he was employed by the Benue State Government. To interprete it in that manner is to stretch the meaning of the paragraph to breaking point. If the case of the appellants/applicants in that paragraph was that the deceased was an employee of the Benue State Government, the fact being material ought to have been pleaded as required by Order 15 Rule 2 of the High Court of Benue State (Civil Procedure) Rules. The law is that pleading must be detailed and comprehensive on material facts and the facts pleaded must be exact, precise and should not give room for speculation or conjecture. See Akande V Adisa (2012) 15 NWLR (Pt. 1324) 538, 574 and Abubakar V Yar’Adua (2009) 166 LRCN 1, 115.
Paragraph 7 of the statement of claim set out above shows clearly that the case of the appellants/applicants at the High Court was that the deceased was at all material times in the employment of the 2nd respondent. For the same appellants/applicants to now contend that he (the deceased) was in the employment of the Benue State Government is nothing but a volte-face and a departure from the case set up by them at the High Court. A party is bound by his pleading and the law does not permit a party to make a case on appeal different from his case before the trial Court. An appeal is not a new action but a continuation of the dispute in the original action and is therefore a complaint against a decision arising from the matter in dispute. For this reason, a party is not allowed to change the case he made right from the trial Court. See Ogundare V Ogunlowo (1997) 6 NWLR (Pt. 509) 360, PDP V INEC (2014) 17 NWLR (Pt. 1437) 525,568 and Odom v PDP (2015) 6 NWLR (Pt. 1456) 527, 550.
Since the case of the appellants/applicants at the High Court was that the deceased was employed by the 2nd respondent (BERDA) they can not now be allowed to change gear and say that he was employed by the Benue State Government.
It was the contention of the appellants/applicants that 2nd respondent is an agency of the Benue State Government which is a disclosed principal. In the first place that was not the case put up by them at the High Court and so it can not be countenanced now. Furthermore, the 2nd respondent by virtue of Section 3(2) of the Benue Rural Development Agency Law Cap. 149 is a body corporate with perpetual succession capable of suing and being sued in its corporate name. The presence of Benue State Government is therefore not necessary in this matter as the appeal can be effectively and completely determined without its presence in the appeal. See Attorney ? General of Benue State v Umar (2008) 1 BWLR (Pt. 1068) 311, 351.
The fact that the 2nd respondent is an agency of the Benue State Government does not necessarily mean that a person employed by it is automatically an employee of the Benue State Government to make the said government vicariously liable for his tortious acts committed in the course of his employment. Section 8 (1) of the Benue Rural Development Agency Law empowers the agency to employ such staff as it may deem necessary, vesting it with power to promote and discipline such staff. Such staff cannot be said to be employees of the Benue State Government though their conditions of service shall be as in the Civil service of the State by virtue of sub-section (2).
I have looked again at the statement of claim of the appellants/applicants. There is, I say again, no plea that the deceased was an employee of the Benue State Government. There is also no complaint or relief against the said Government.
Contrary to Order 15 Rule 2 of the Court of Appeal Rules earlier set out in this judgment, it is not necessary to add or even substitute the Benue State Government for the deceased. There is no transmission of interest or liability from the deceased to the Benue State Government as required in Re: Apeh (2017) 11 NWLR (Pt. 1576) 252, 282. There is therefore no basis to grant payer (ii) in the motion paper. See APC v PDP (2015) 15 NWLR (Pt. 1481) 1, 62. Prayer (ii) is therefore refused.
Prayers (iii) and (iv) are tied to the grant of prayers (i) and (ii). Since prayer (i) has been granted and prayer (ii) has been refused, they cannot stand as they are.
On the whole and for the purpose of clarity, and avoidance of doubt, it is hereby ordered that
(i) Prayer I on the motion paper be and is hereby granted and the name of Isaac Tyoyongo is hereby stuck out of this appeal.
(ii) Prayer (ii) is refused;
(iii) The appellants in consequence are hereby granted leave to amend the notice of appeal to reflect the striking out of the name of Isaac Tyoyongo; the amended notice of appeal shall be filed in this Court within 7 days of today’s date;
(iv) The appellants/applicants shall file their brief of argument reflecting the striking out of the name of Isaac Tyoyongo within 14 days of today’s date.
(v) The amended notice of appeal and the appellants’ brief of argument filed on 21/12/2017 in anticipation of the grant of prayers (ii), (iii) and (iv) are hereby struck out.
The parties shall bear their costs.
JOSEPH TINE TUR, J.C.A.: I had the advantage of reading an advance copy of the decision of my learned brother, JOSEPH EYO EKANEM, JCA.
The traditional manner of titling or heading any determination by the Justices of the Court of Appeal involving interlocutory in the past was a ‘ruling.’ But if the determination of a dispute or controversy under Sections 13-14, 18, 24(1)-(4) of the Court of Appeal Act (2010 Amendment) is in regard to the substantive appeal it is headed a ‘judgment’, etc. That was before the Constitution of the Federal Republic of Nigeria, 1999 as altered came into effect on 29th May, 1999. The intention of the legislature since 29th May, 1999 may be garnered from the provisions of Section 36(1)-(2), 294(1) and 318(1) of the Constitution of (supra). These provisions are, couched in the following language:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Any determination of a dispute or controversy under Sections 241-243, 294(2) and 318(1) of the Constitution is a ‘decision’ or an ‘opinion’ if the adjudicatory panel is the Court of Appeal or the Supreme Court. A composite reading of the above provisions will show that determination of dispute or controversies relating to ‘civil rights and obligations’ of any person in Nigeria is to be undertaken in a Court or other Tribunal constituted in such manner as to secure the independence and impartiality of the Justices to ensure that there is a final put to end to litigation. The legislature employed the word ‘determination’ or ‘determine’ in various provisions of the Constitution, Acts of the National Assembly or Laws enacted by the State Houses of Assembly and Rules of Practice and Procedure to mean ‘putting a final end’ to the dispute or controversy.
In Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 226 the Supreme Court held at page 243-244 per Alexander, CJN, thus:
‘More light is thrown on the meaning of the words ‘decision’ and determination’ in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ‘We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end’ or (the mental action of coming to a decision,’ or ‘the resolving of a question’).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ‘determination’ therein meaning ‘ending of the matter’.
But in Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Karibi-Whyte, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:
‘The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.’
‘Any determination’ is an ‘opinion’ or ‘decision’ but the legal meanings or connotation depends on their usage by the legislature or the Rules Maker. These words or phrases are not for fancy. The legislative intention is to be deciphered from the words and phrases employed by the legislature, hence, in Chief Andrew Thomas vs. Local Government Service Board (1965) NMLR 310, Brett, JSC held at page 315 that, The greater includes the less meaning, a judgment, decree, order, conviction, sentence or recommendation under Section 294(2) and 318(1) of the Constitution is included in the word ‘determination. A determination is an ‘opinion’ or a ‘decision’ under Section 294(2)-(4) of the Constitution. For all these reasons I have headed and shall continue to title any determination of the Court of Appeal I write in my judicial career as an ‘opinion’ or a ‘decision’ in order to comply with the intention of the National Assembly from 29th May, 1999 when the current Constitution came into force in Nigeria. Doing otherwise will infringe the provisions of Section 1(1) and (3) and 13 of the Constitution (ante) which provides as follows: –
1(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2)
(3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.
13. It shall be the duty and responsibility of all organs of government and of all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this Chapter of this Constitution.
To this end I have headed this determination as a ‘decision’ but not a ‘ruling’ because a ‘ruling’ is not mentioned in Section 294(1)-(5) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Neither is a ‘ruling’ or an ‘interlocutory decision’ defined in Section 318(1) of the Constitution which reads as follows: –
318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
‘Decision’ means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.
It is not within the province of this Court to extend jurisdiction over ‘any determination in relation to a Court’ under Section 294(1)-(2) and 318(1) of the Constitution to ‘rulings’ or ‘interlocutory decisions’. That will amount to a naked usurpation of the powers and authority of the National Assembly to amend the provisions of Section 241, 242, 243,
294(1)-(5) of the Constitution to confer appellate or supervisory jurisdiction on the Court of Appeal to entertain appeals against ‘rulings.’ The Court of Appeal has no jurisdiction to render ‘rulings’ but ‘decisions’ as defined under Section 294(2)-(5) and 318(1) of the Constitution to wit: –
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non- compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:
‘Decision’ means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.
Legal luminaries may observe that a determination by a Court that has been established under the Constitution of the Federal Republic of Nigeria, 1999 as altered that hears evidence and relies on final addresses from the parties or their legal representations is to render a ‘decision’ not an ‘opinion’ within ninety days as stipulated under Section
294(1) of the Constitution to wit: –
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
A ‘decision’ is defined under Section 318(1) of the Constitution in relation to any determination to include etc. The Courts established under the Constitution that hears evidence and relies on final addresses are set down in Section 6(5)(a)-(k) of the Constitution (supra) as follows:-
(5) This section relates to: –
(a) The Supreme Court of Nigeria;
(b) The Court of Appeal;
(c) The Federal High Court;
(cc) The National Industrial Court;
(d) The High Court of the Federal Capital Territory;
(e) A High Court of a State;
(f) The Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) A Sharia Court of Appeal of a State;
(h) A Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) A Customary Court of Appeal of a State;
(j) Such other Courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) Such other Courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
The legislature is of the opinion that ninety days is adequate for a learned Judge, upon hearing evidence and final addresses, to consider passionately the pleadings, evidence, exhibits, etc, and the addresses to come to a decision so as to do justice and equity to the litigants. The of the Court of Appeal, and perhaps the Supreme Court is to hear and determine appeals in accordance with the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered but no time is stipulated within which the Justices may render an opinion or a decision. The provision provides as follows: –
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
The Supreme Court or the Court of Appeal renders either an ‘opinion’ or a ‘decision’ when the Court exercises appellate or supervisory jurisdiction in determining disputes or controversies arising from the decisions of lower Courts under Section 36(1)-(2) and 294(1) of the Constitution to wit:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Section 294(3) of the Constitution reads as follows: –
294 (3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
I am of the candid opinion that neither the Court of Appeal nor perhaps the Supreme Court may exercise appellate or supervisory jurisdiction over disputes or controversies that do not put a final end to a controversy within the contemplation of Section 318(1) of the Constitution. In other words, the Court of Appeal has to render an ‘opinion’ or a ‘decision’ under Sections 294(2)-(3) and 318(1) of the Constitution by putting ‘a final end’ to the controversy, or dispute in favour of the party that the admissible evidence, the exhibits and judicial precedents, if any, favours or supports as provided in Order 4 Rules 9(1)-(3) of the Court of Appeal Rules, 2016 to wit:-
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question, and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
Similar provisions exists in Order 8 Rules 13(1)-(3) of the Supreme Court Rules, 1985 (as amended) to wit: –
13(1) On the hearing of any appeal the Court may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in paragraph (2) of this rule affects part only of the matter in controversy, or one or some only of the part, the Court may order a new trial as to that part only, or as to that part or those parts only give final judgment as to the remainder.
A party or person that complains that a learned trial Judge violated the provisions of Section 36(1)-(2), 294(1) and 318(1) of the Constitution has remedies in Section 294(5)-(6) of the Constitution which provides as follows: –
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
The Justices of the Court of Appeal, upon hearing argument from the parties or their legal representatives invoke the provisions of Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016, or are enjoined to apply the ‘Blue Pencil Rule’, to excise the aspect or all of the determination that contravened the provisions of Order 4 Rules 9(1)-(2) of the Rules (supra) and give final judgment to the remainder,’ of the party or parties that deserves justice based on the record of appeal, exhibits copied or transmitted and received by the Registry of the Court of Appeal, the arguments in the briefs of learned Counsel, etc. that formed part of hearing the appeal. The situation in the Supreme Court is governed by Section 294(5) of the Constitution read together with Order 8 Rule 13(3) of the Supreme Court Rules of Practice and Procedure, 1985 (as amended) to wit:-
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in paragraph (2) of this rule affects part only of the matter in controversy, or one or some only of the part, the Court may order a new trial as to that part only, or as to that part or those parts only give final judgment as to the remainder.
The ‘Blue Pencil Rule’ or ‘Test’ is defined in Black’s Law Dictionary, 9th edition at page 196 as follows:-
‘Blue Pencil Test’, A judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words…”
There are a plethora of decisions or opinions of the Supreme Court that applied the ‘Blue Pencil Rule’ or ‘Blue Pencil Test’ to give final judgment to the remainder, of the litigants rather than striking out an appeal on technicalities, example, decisions of Election Tribunals, Appeal Tribunal or Courts of Justice that determine electoral disputes or controversies outside the time stipulated by the legislature. Counsel often challenges these decisions that were rendered outside the 180 or 60 days as the case may be. But hardly do Counsel challenge the probative quality of the oral or documentary evidence nor pleadings, etc, except that the decisions were rendered outside the period of 180 or 60 days by Tribunals or Courts of first instance or by Appeal Courts or Tribunals. The setting aside or striking out of the decisions of the Tribunals, Appeal Tribunals and Courts do not constitute ‘a final judgment within the contemplation of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 or Order 8 Rule 13(3) of the Supreme Court Rules, 1985 (as amended).
In all these decisions, learned Counsel did not advert the minds of the learned Justices of the Court of Appeal or the Supreme Court to the provisions of Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016 or Order 8 Rule 13(1)-(3) of the Supreme Court Rules, 1985 (as amended) hence these decisions were given ‘per incuriam’.
In Ahmadu Makun & Ors. Vs. Federal University of Technology, Minna & Ors. (2011) 6 SCNJ 334 the Supreme Court held at page 324:
‘In the case of Buhari Vs. INEC (2008) 19 NWLR pt. 1120 pg. 246 at page 3772, the Supreme Court held that per incuriam in law means the judge giving a judgment in ignorance or forgetfulness of an enabling statutes or some binding authority on the Court. A case decided per incuriam includes a situation where the Court forgot to take into consideration a previous decision which the doctrine of stare decisis applies. Such decisions given per incuriam usually contradict a settled principle of law by a superior Court. It is also a situation where a statute or rule having statutory effect or other binding authority, which would have affected the decision, had not been brought to the attention of the Court. Rossek Vs. ACB Ltd. (1993) 8 NWLR pt. 312 pg. 382, African Newspaper Vs. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Cross on precedent in English Law (1961) at page 139’.
It is trite law that per incuriam decisions infringe the ‘final’ or ‘finality rule’ or ‘finality test’ doctrine as in Black’s Law Dictionary, 9th edition, pages 705-706 as follows:-
Final 1. (Of a judgment at law) not requiring any further judicial action by the Court that rendered judgment to determine the matter litigated; concluded.
2. (Of an equitable decree) not requiring any further judicial action beyond supervising how the decree is carried out. Once an order, judgment, or decree is final, it may be appealed on the merits.
Finality Doctrine – The rule that a Court will not judicially review an administrative agency’s action until it is final. Also termed final-order doctrine; doctrine of finality; principle of finality. Cf. Final-Judgment Rule; Interlocutory Appeals Act.
Final Judgment Rule – The principle that a party may appeal only from a district Court’s final decision that ends the litigation on the merits. Under this rule, a party must raise all claims of error in a single appeal. Also termed final-decision rule; finality rule?.
The difference between a ‘final’ or an ‘interlocutory decision’ or ‘ruling’ becomes very important in determining the jurisdiction of the Court of Appeal to adjudicate and determine or put a final end to a dispute or controversy. A ‘final decision’ and an ‘interlocutory decision’ is defined in Black’s Law Dictionary (ante) at pages 467 to wit:-
Final decision. See final judgment under JUDGMENT – A Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fee) and enforcement of the judgment. Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. See FINAL JUDGMENT RULE
‘Interlocutory decision. See Interlocutory order under ORDER – An order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION; COLLATERAL-ORDER DOCTRINE
The learned editor of Osborn’s Concise Law Dictionary, 9th edition, page 231 defined an ‘interlocutory order’ as follows:-
‘Interlocutory order: While a final order determined the rights of the parties an interlocutory order left something further to be done to determine those rights. See now Interim Order.’
The phrase ‘final decision’ appears in Section 241(1)(a) of the Constitution though the phrase is not defined in Section 318(1) of the Constitution. The phrase does not appear in Section 294(1)-(5) of the Constitution. Neither can one trace the origin of what is a ‘ruling’ in Section 36(1)-(2), or 294(1)-(5) nor 318(1) of the Constitution. The phrase ‘interlocutory decision’ or ‘ruling’ is omitted in these provisions of the Constitution.
I have taken time to extensively address this issue because the intention of the legislature may be garnered from the choice of words and phrases employed by the draftsman in the provisions of the Constitution, an Act of the National Assembly or Rules of Practice and Procedure. In Maxwell On the Interpretation of Statutes, 12th edition by St. P.J. Langan appears the following passages at pages 1-2 to wit:-
A statute has been defined in previous editions of this work simply as ‘the will of the legislature,’ and this definition, it is submitted, remains sufficient provided that it is understood that the will of the legislature must be expressed either by the agreement of the Queen and Commons in accordance with the Parliament Acts, 1911 and 1949. Granted that a document which is presented to it as a statute is an authentic expression of the legislative will, the function of a Court is to interpret that document ‘according to the intent of them that made it.’ From that function the Court may not resile: however ambiguous or difficult of application the words of an Act of Parliament may be, the Court is bound to endeavour to place some meaning upon them. In so doing it gives effect, as the judges have repeatedly declared, to the intention of Parliament, but it may only elicit that intention from the actual words of the statute. ‘If’, said Lord Greene M.R., ‘there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used.’ If language is clear and explicit, the Court must give effect to it., ‘for in that case the words of the statute speak the intention of the Legislature.’ And in so doing it must bear in mind that its function is jus dicere, not jus dare: the words of a statute must not be overruled by the Judges, but reform of the law must be left in the hands of Parliament.
This work attempts to set out the main principles which the judges apply in carrying out their task of construing statutes.
At page 33 appears the following write-up:-
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’ ‘We are not entitled,’ said Lord Lorebun, L.C., ‘to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.’ A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
But the phrase ‘interlocutory decision or order’ but not ‘ruling’ appears in Sections 13-14, 18, 24(1)-(4) of the Court of Appeal (2010 Amendment) Act. The purport of this will be seen from the fact that a party or person intending to challenge an ?interlocutory determination? of the High Court of a State, or of the Federal High Court as the case may be, has to seek leave of the Court below, and if refused, may apply to the Court of Appeal for leave showing why the Court of Appeal should interfere with the discretion of the Court below in favour of the would be appellant/applicant. Some interlocutory appeals are brought by unscrupulous parties or learned Counsel to frustrate speedy trial, or to ensure that the successful party does not enjoy the fruit of his or her victory, at the trial.
Occasions do arise that appeals are brought against interlocutory decisions of the Courts below to enable the time for doing justice to the parties to elapse, example, electoral disputes or controversies where the Tribunals or Courts of first instance have to hear and determine electoral disputes within 180 days and the appeals emanating therefrom, within 60 days. The petition abates due to effluxion of time. The Courts or Tribunals at of first instance have to proffer good and verifiable reasons for granting or refusing leave to a party to challenge an interlocutory decision to ensure that the applicant is not using judicial process as an abuse of the rights or obligations of the parties involved, or who may be interested in the outcome of the appeal. The Court of Appeal would examine the reasons to see whether justice demands that leave should be refused or granted the applicant to appeal against the interlocutory order or decision of the Court below. That is the essence of the provisions of Section 242(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:-
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of justice do not require an oral hearing of the application.
The Court of Appeal has to examine in the record of appeal which is a condition precedent under Section 242(2) of the Constitution or the applicant has to show his or her ‘interest’ and how that had been derived to be granted or refused leave to appeal under Section 243 of the Constitution to wit:-
(1) Any right of appeal to the Court of Appeal from the decision of Federal High Court or a High Court conferred by this Constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed; and
(b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of Section 254C(5) of this Constitution, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.?
In the light of all that I have said I shall determine this interlocutory application on the merit. There is nothing to show that the appellant sought and was granted leave by the Court below or this Court to appeal, so as to validate the Notice and grounds of appeal, this being an appeal against an interlocutory decision of the determination of the lower Court in putting a final end to the dispute or controversy between the litigants. Where leave of the Court below or of the Court of Appeal should have been sought and obtained but there is no evidence to that effect, the appeal is null and void ab initio.
‘I have read the ‘ruling’ of my learned brother, Ekanem, JCA and the reliefs sought by the applicant on the motion against the respondents. I shall give attention to reliefs (ii)-(iv) on the motion which are couched as follows:-
(ii) An order of this Honourable Court joining the Benue State Government as a Respondent to this appeal No.CA/J/246/2010.
(iii) An order of this Honourable Court granting leave to the appellants/applicants to amend the notice of appeal in this Appeal No.CA/J/246/2010 filed on 19th May, 2010 to reflect the striking out and joinder and by listing Benue Rural Development Agency (BERDA) as 1st respondent and the Benue State Government as the 2nd respondent in the appeal as shown in the proposed amended Notice of Appeal exhibited to the affidavit in support of this application as Exhibit ‘JSO4′.
(iv) An order of this Honourable Court deeming the amended Notice of Appeal and the appellants’ brief of argument already filed as properly filed and served appropriate fees having been paid.
There is no deposition in the supporting affidavit of the application why the Benue State Government was not sued as a defendant in the Court below if truly the State Government was the employer of the deceased. An ‘Employee’ and ’employer’ are defined in Black?s Law Dictionary, 9th edition, page 602 and 604 respectively as follows:-
Employee:- A person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance. Also spelled employe. Cf. Agent (1) INDEPENDENT CONTRACTOR
In disputes of this nature, the terms of the contract will govern the relationship of an employee, and the employer in this regard. See Ihezukwu vs. University of Jos (1990) 7 SCNJ 95. In Mandilas vs. Karaberis Ltd. vs. Otikiti (1963) 1 All NLR 22, Bairamian, F.J., held at page 26 that, when a contract is reduced into writing, the writing gives the terms agreed upon.? See Olaniyan & Ors. vs. Unilag (1985) 2 NWLR (Pt.9) 599; A.A. Macaulay vs. Merchant Bank Ltd. (1990) 6 SCNJ 117 at 113 and Owoniboys Technical Services Ltd. vs. UBN Plc (2003) FWLR (Pt.180) 1529 at 1552.
Facts in an affidavit are oral evidence. See Section 115 of the Evidence Act, 2011. The issue of the employment of the deceased by the Benue State Government ought to have been supported by documentary exhibits which would enable this Court to evaluate the affidavit evidence. SeeFashanu vs. Adekoya (1974) All NLR (Pt.1) 32437; Ebba vs. Ogodo (1984) 4 SC 84; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. When the principal is known, the agents or its agencies are exempt from being sued in Court. See Omotoya vs. Ojikutu (1961) 1 All NLR (Pt.4) 901; Nigerian Industrial Development Bank Ltd. vs. Olalomi Ind. Ltd. (2002) FWLR (Pt.98) 979 at 997 and Olufosoya vs. Fakorede (1993) 1 NWLR (Pt.272) 747. When does the relationship of an ?agent? or an ?agency? and a principal arise? See Trenco Nig. Ltd. vs. African Real Estate & Investment Co. Ltd. (1978) 4 SC 9 at 26. This Court will look at the reliefs the deceased sought against the respondents in the statement of claim. See Isamotu Otanioku vs. Lawal Mustafa (1977) 11-12 SC 9; Alhaji Onibudo & Ors. vs. Alhaji Akibu & Ors. (1982) 7 SC 6 and Dutse vs. Governor of Kano State & Ors. (1980) FWLR 269 at 274.
When a cause of action is not in existence against a respondent when the summons was issued, the claim is a nullity.
In Esin vs. Matzen & Timm (Nig.) Ltd. (1966) 7 All NLR 233; Mohammed vs. UBA (1976) 2 FNLR 21.
The deceased claimed no reliefs against the Benue State Government at the time the summons was taken out against the defendants whose names were as follows:-
(1) ISAAC TYOYONGU
DEFENDANTS
(2) BENUE RURAL DEVELOPMENT AGENCY (BERDA)
Paragraph 28 of the Amended Statement of Claim sought the following reliefs against the defendants in the Court below:-
28. WHEREOF plaintiffs have suffered damages and claim from the defendants jointly and severally special and general damages thus:-
1. Special damages limited to the sum of N1,867,040.00 made up as follows:
(a) N300,000.00 being the cost the car was bought.
(b) N725,000.00 being the cost of renovation and repairs of the car as pleaded hereinbefore.
(c) N9,000.00 being the value of digital tape recorder in the car.
(d) N3,000.00 being the value of the fire extinguisher in the car.
(e) N6,000.00 being the value of spare tyre/rim in the car.
(f) N25,000.00 being the value of the jack.
(g) N30,000.00 being cash destroyed in the car.
(h) N10,000.00 being the cost of medical treatment of the 2nd plaintiff.
(i) N344,000.00 being the sum spent to hire vehicles/Okada for the transportation of the 1st plaintiff and family as pleaded hereof for 344 at N1,000.00 family day from 21st June, 2002 to 31st May, 2003.
Total – N1,867,040.00 (One Million, Eight Hundred and Sixty-Seven Thousand, Forty Naira Only).
(ii) Special damages in the sum of N1000.00 daily from 1st June, 2003 till judgment being the cost for lost of use and enjoyment of the car and inconveniences.
(iii) General damages in the sum of N100,000.00 against the defendants jointly and severally.
To join the Benue State Government at this stage of the proceedings will deprive the State Government the opportunity to defend the claims of the deceased in the Court below. If the Benue State Government is joined at this stage of the appeal when and where will the party joined, file a statement of defence, cross-examine the deceased and his witnesses, testify and call witnesses and adduce oral and documentary evidence, etc, to buttress her defence, the fact being that the deceased is dead. Can the deceased resurrect to testify, be cross-examined in the grave, and confronted with oral or documentary evidence? I do not think so. Dead men and women do not talk nor give evidence in Court. Cross-examination of a witness is to be done as the person testifies in the witness box. See Nwobodo vs. Onoh (1984) 1 SCNLR 1 at 88. In Mechanical and General Inventions Co. Ltd. & Anor. vs. Austin & The Austin Motors & Co. Ltd. (1935) All E.R, Rep. 22 by Lord Hanworth, M.R., sitting in the Court of Appeal, England’s decision was affirmed by the House of Lords per Lord Sankey, L.C., at page 27 to 28 of the judgment to wit:
I cannot part from this case without referring to the remarks made in the Court of Appeal upon the method in which it was conducted in the Court of first instance.
The learned Master of Rolls said:
There remains one feature of this case upon which, in association with my colleagues, I desire to make serious comment – ‘that is the cross-examination to which the leading actors on either side, Mr. Lehwess and Sir Herbert Austin, were subjected. Measured by the shorthand note, it appears that Mr. Lehwess’s examination occupied eighty pages; his cross-examination occupied 265. The examination of Sir Herbert Austin occupied thirty-nine pages and his cross-examination 148 pages. There is a tedious iteration in some of the questions asked, and prolonged emphasis is laid on some matters, trivial in relation to the main issues. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of Counsel in the confidence that it will be used with discretion, and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions, and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skilful, yet powerful, cross-examination.’
With that censure I agree, except that I cannot think it can be justly applied to the Counsel who appeared on behalf of the plaintiffs or to any of the Counsel who appeared at the Bar of your Lordships’ House. It is right to make due allowance for the irritation caused by the strain and stress of a long and complicated case, but a protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and the Counsel who present it to the Court are taking part in the great task of doing justice between man and man.
See Maidola Okwa vs. Iyere Iwerebur & Ors. (1969) 1 All NLR 87.
Without cross-examination of a deceased claimant or witness, it will be very difficult to attach or ascribe any weight to the witness?s evidence in Court. The reliefs claimed and awarded by Court to a party should be supported by the pleadings. See Ishola vs. UBN Ltd. (2005) 2-3 SCNJ 191 at 202-203.
A decision of the Court of Appeal in the determination of any dispute or controversy has to be related to the pleadings. See Incar Nig. Ltd. vs. Benson Transport Ltd. (1975) 3 SC 117; Musa vs. Ibrahim (1974) 5 SC 55 at 62 and UniJos vs. Ikegwuoha (2013) 9 NWLR (Pt.1360) 478 to 498 paragraphs ‘B’- ‘C’.
This Court will not grant remedies or prayers that are vague or cannot be enforced, for instance, to move this Court with the living witnesses and their legal representatives to conduct hearing in the grave where the deceased died and is buried. Order 15 Rule 2 of the Court of Appeal Rules, 2016 reads as follows:-
‘2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.’
This Order and the rule comes into play or is to be invoked ‘when it is necessary to add or substitute a new party for the deceased This application is not to ‘add or substitute a new party’, namely, the Benue State Government for the deceased and neither is the Benue State Government? an existing party to the appeal? nor does the State Government come within the phrase any person who wishes to be added or substituted since the learned Counsel representing the Benue State Government has vehemently opposed this application. Order 15 Rule 2 of the Rules cannot be called in aid by the applicant to support the vague prayers on the motion. The provisions of Order 15 Rule 2 of the Court of Appeal Rules, 2016 cannot be read in isolation because it is subject to the provisions of Order 4 Rule 10, of the Court of Appeal Rules, 2016 which provides as follows:-
10. An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules.
‘The phrase – subject to has been interpreted by the Supreme Court in a plethora of decisions. The phrase – subject to the provisions of this Act was interpreted by the Supreme Court in Dr. Taiwo Oloruntoba-Oju & Ors vs. Prof. Shuaibo O. Abdul-Raheem & Ors. (2009) 6 SCNJ 1 per Adekeye, JSC at page 41 as follows:
‘Whenever the phrase ‘subject to’ is used in a statute the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient liable subordinate and inferior to the provisions of the other enactment. Labiyi vs. Anretiola (1992) 8 NWLR (Pt.258) 139; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; FRN vs. Osahon (2006) 5 NWLR (Pt.973) 261.’
In Texaco Panama Inc. vs. S.P.D.C. Ltd. (2002) FWLR (Pt.96) 579 the Supreme Court explained the meaning of the phrase ‘subject to’ at page 600 per Kalgo, JSC as follows:
‘The opening words of this section read thus: ?Subject to the provisions of this Act.’
This phrase which appears in many statutes has been interpreted by this Court in many cases to mean an expression of limitation which is ‘subject to’, and shall govern, control and prevail over what same succeeding or later provisions of the Act, supersedes or controls the provisions in the section or subsection concerned. See Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517; Ezenwosu vs. Ngonadi (1992) 8 NWLR (Pt.258) 139.’
The phrase ‘subject to in a Constitutional or Statutory provisions was explained in Tukur vs. Govt. of Gongola State (1989) All NLR 575, Obaseki, JSC held at pages 591 to 592 as follows:
‘The expression ‘subject to’ in Section 221(1) of the 1979 Constitution was recently construe by my learned brother, Karibi-Whyte, JSC in Aqua Ltd. vs. Ondo State Sports Council (1988) 10-11 SCNJ 26 at 51. Delivering his judgment in the matter, he said:
The expression ‘subject to’ subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See L.S.D.P.C. vs. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413 at 461; Clard vs. I.R.C. (1973) 2 All E.R. 513. The effect of this is that Section 221(1) of the Constitution, 1979 does not apply to the circumstances covered in Section 220(1).
I will also refer to the lucid consideration given to this phrase ?subject to? by Kolawole, J.C.A. in L.S.D.P.C. vs. Foreign Finance Corporation (1989) 1 NWLR (Pt.50) 413 at 461. There the learned Justice of the Court of Appeal was dealing with Section 1 of the Land Use Act when he said:
Section 1 of the Act begins by saying that ‘subject to the provisions of the Decree’. This phrase governs what follows by which all lands comprised in each State in the Federation are vested in the Military Governor of that State.
Now what is the effect of the phrase ‘subject to the provisions of this Decree’ on Section 34 of the Act? Megarry, J., (as he then was), aptly gave consideration to that phrase. He said:
The phrase ‘subject to’ is a simple provision which merely subjects provision of the subject subsection to the provision of the master sub-section.
Where there is no clash the phrase does nothing. If there is collision, the phrase shows what is to prevail. See Clark Ltd. vs. Inland Revenue Commissioners (1973) 2 All E.R. 513, 520.
Now if Section 1 of the Act is subject to the provisions of the Decree can it be stated categorically that all land comprised in the territory of each State are vested in the Military Governor of the State. Section 1 subjects the provision to the provisions of the master sections in the Act.
The effect of the phrase ‘subject to the provisions of this Decree’ in Section 1 of the Land Use Act is brought out vividly by the provisions of Section 49(1) and Section 50(2) of the Act which are master sections. Section 49(1) reads:
‘Nothing in this Decree shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Decree and accordingly any such land shall continue to vest in the Federal Government or the agency concerned.’
While Section 50(2) reads:
‘The powers of a Military Governor under this Decree shall in respect of the Federal Capital Territory or any land held or vested in the Federal Government in any State, be exercised by the Head of the Federal Military Government or any Federal Commissioner designated by him in that behalf and references in this Decree to Military Governor shall be construed accordingly.’
It is therefore clear that Section 1 of the Decree is subject to the provisions of Sections 49(1) and 50(2) Of the Act.. ”
The granting or refusal of the prayers of the applicant to join the Benue State Government as a respondent in this appeal shall not affect the determination of the dispute or controversy on the merit. Accordingly, this application fails, and is dismissed. No order as to Costs.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Ruling just delivered by my learned Brother, Joseph Eyo Ekanem, JCA, in determination of the application of the Appellant/Applicant. I agree completely with the reasoning and conclusions of my Learned Brother. I will only make few comments in support.
It is now quite pedestrian that parties are bound by their pleadings; American Cyanamid co. v Vitality Pharmaceuticals Ltd (1991) LPELR-461(SC); Agala v Okusin (2010) LPELR- 221(SC). For this reason, parties cannot midway change their version of the complaint they start off a matter with. Furthermore, an appeal is a continuation of the matter before the lower Court by way of a re-hearing to enable the Appellate Court evaluate the evidence that has been adduced; Osuji v Ekeocha (2009) LPELR- 281600; Ecobank Nigeria Ltd v Honeywell Flour Mills Plc (2018) LPELR-45124(SC). Therefore, a party has to be consistent in maintaining his case. He cannot change the case made out in the trial Court on appeal; IM(Nig) Ltd v Pegofor Industries Ltd (2005) LPELR-1525(SC); Nwaogu v Atuma (2012) LPELR-19648(SC). The goal post is usually not changed in the middle of the game. Otherwise, ascertaining a winner would be near impossible task.
The Appellant/Applicant cannot therefore on appeal change the content and con of his complaint before the trial Court on appeal.
For these reasons and for the more comprehensive reasons given in the lead Ruling, I also grant prayer (i) on the motion paper and refuse prayer (ii). I abide by the orders made in lead Ruling.
Appearances:
M. O Ozueh, Esq.For Appellant(s)
S.T Suleh, Esq. (Assistant Director, Legal Drafting, Benue State Ministry of Justice) with him, Mrs. E. L Edia (SSC) for 2nd respondent.
For Respondent(s)
