NZE NATHANIEL DIKE V. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE & ORS. (2012)

NZE NATHANIEL DIKE V. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE & ORS.

(2012)LCN/5807(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of June, 2012

CA/PH/245/2002

RATIO

ACTION: DUTY OF A RESPONDENT

That is so because, as Respondents, their role is to support the judgment appealed against. In other words, the primary duty of a Respondent’s brief is to support the judgment appealed against. See Order 18 rule 4(2) of the Court of Appeal Rules, 2011. See also OLAWORE v. OLANREWAJU (1998) 1 NWLR (Pt.534) Pg.436 at 455 and IHEANACHO v. EJIOGU (1995) 4 NWLR (Pt. 398) Pg. 324 at 334. PER HARUNA M. TSAMMANI, J.C.A.

PLEADINGS: GENERAL PRINCIPLES ON AMENDMENT OF PLEADINGS

The general principles on amendment of pleadings is that, an amendment should be allowed for the purpose of determining the real questions in controversy between the parties, unless such an amendment will entail injustice or surprise or embarrassment to the other party, or where the Applicant is shown to be acting mala fide or that by his blunder he has caused or done some injury to the adversary which cannot be compensated by way of award of costs or otherwise. This is so because, the object of the court is to decide the rights and obligations of the parties and not to punish them for mistakes which they may have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thus, the rules governing the amendment of pleadings are flexible, and therefore depend to a great dear on the discretion of the judge. That is more so when the decision whether or not to grant an amendment to the pleadings depend entirely at the discretion of the court. See AJAH v. OGBONI (1976) 10 N.S.C.C. Pg. 244 at 247; OKAFOR v. IKEANYI (1979) 12 N.S.C.C. Pg. 42 at 47; ADETUTU v. ADEROHUNMU (1984) 15 N.S.C.C. Pg. 389.

Now, under order 26 rules 1, 2 and 3 of the Imo State High Court (Civil Procedure) Rules, 1988, a trial court has the discretion to grant an amendment at any stage of the proceedings before judgment. As stated earlier, such an amendment ought to be granted unless it is made mala fide or intended to over reach the other party. Such an amendment will also not be granted where it will alter or change the character of the case or introduce new issues not canvassed in the parties’ claim as that would occasion substantial alteration. See OLOTO v. ATTORNEY-GENERAL (1957) 1 N.S.C.C. Pg.71 at 83; IBANGA v. USANGA (1982) 13 N.S.C.C. Pg.118 at 129; SOLANKE v. SOMEFUN (1974) 9 N.S.C.C Pg. 14 at 17-18 per Sowemimo, JSC (as he then was), OSINUPEBI v. SAIBU (1982) 13 N.S.C.C. Pg. 214 at 218. PER HARUNA M. TSAMMANI, J.C.A.

PLEADINGS: AT WHAT STAGE IN A PROCEEDING CAN AN AMENDMENT TO PLEADING BE GRANTED

PLEADINGS: FACTORS CONSIDERED BY COURT IN CONSIDERING WHETHER OR NOT TO GRANT AN APPLICATION FOR AMENDMENT OF PLEADINGS

In considering whether or not to grant an application for amendment of pleadings, the court will take into consideration the following factors:

The attitude of the applicant;
The reason and nature of the amendment sought;
The time factor in relation to the suit;
The stage at which the amendment is sought;
All other relevant circumstances.

See AKANINWO v. NSIRIM (2008) 9 NWLR (Pt.1093) Pg.439 and ALSTHOM v. SARAKI (2000) 14 NWLR (Pt.687) Pg.415. PER HARUNA M. TSAMMANI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

NZE NATHANIEL DIKE Appellant(s)

AND

1. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE
2. MR. G.C. ANORUO, CHAIRMAN STANDING COUNCIL ON EZESHIP IN OBIBIEZENA
3. MR. B.U. NNAJI SECRETARY STANDING COUNCIL ON EZESHIP IN OBIBIEZENA
4. THE GOVERNOR OF IMO STATE
5. LEONARD EZENA ISHIGUZO Respondent(s)

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of L.C. Alinnor, C. J. of the Imo State High Court sitting at Owerri in Suit No: HOW/33/93, delivered on the 12th day of March, 2001.
The 5th Respondent as Plaintiff in the lower court took out a writ of summons seeking inter alia, declaration that he was the person validly identified, selected, appointed, installed and presented as the Traditional Ruler or Eze of Obidiezena Autonomous Community in Ngor Mkpala Local Government Area of Imo State. He also sought for an order of court setting aside the recognition of the Appellant, who was the 6th Defendant at the trial court, by the 4th Respondent as the Eze of the said community.
At the trial, pleadings were ordered, filed and exchanged. However, in the course of trial, the parties amended their pleadings several times. The case was finally determined on the plaintiff/5th Respondent’s 3rd Amended statement of claim which was filed at the close, of evidence and addresses of counsel but before judgment. The Appellant as the 6th Defendant at the trial court fought his case on his 2nd Amended statement of Defence. The 1st and 4th Respondents also hinged their case on the basis of their Joint Amended statement of Defence while the 2nd and 3rd Respondents relied on their Joint Further Amended Statement of Defence.
It would be helpful to point out that, the subject matter of this suit is the Traditional Rulership or Ezeship stool of Obibiezena Autonomous community in Ngor Okpala Local Government Area of Imo State. The former Eze of the community, Eze J.A. Nnodi died in November, 1984. A vacancy was thus created in the stool. The evidence on record which is agreed to by all the parties is that, ascension to the throne in the community is on a rotatory basis amongst the three constituent clans or villages in the Community. That when Eze J.A. Nnodi died, it was the turn of Emeke village to present a candidate for appointment as the Eze of the Obibiezena Autonomous Community. The issue in dispute is, who, as between the Appellant and the 6th Respondent was validly identified, selected, appointed and installed by the Obibiezena Autonomous Community as the Eze as required by the Traditional Rulers and Autonomous Communities Law No. 11 of Imo State.
The 5th Respondents case at the trial court is that, he was the person validly identified, selected, appointed and installed by the Autonomous Community as Eze sometimes in 1986 in accordance with the Instrument for the Establishment of Ezeship in Obibiezena Autonomous Community as revised in 1985. It is also his case that due to some dispute created by the Appellant, the chairman of Ngor Okpara Local Government directed that the exercise be conducted again in 1990. That he participated in the said exercise again in 1990, though as an Eze-Elect, and that his identification, selection, appointment and installation was confirmed. That after that exercise, his name was presented to the chairman of Ngor Okpala Local Government to be forwarded to the Imo state Government for recognition as required by the Traditional Rulers and Autonomous communities Law (supra). That after he was presented to the chairman of Ngor Okpala Local Government, the Chairman duty recommended him to government for recognition as the Eze of Obibiezena. He tendered the recommendation in evidence as Exhibit “B”. He contended that the government however resorted to foot-dragging on the issue, as a result of which the Council of Chiefs in Obibiezena wrote a letter to government reminding it of the issue, but government did not reply. That instead, the Deputy Governor of Imo State directed that the issue of selection of the Eze of Obibiezena be resolved by plebiscite, but the community rejected it so the plebiscite could not hold.
It is also the 5th Respondent’s case that due to that development, he filed an application before the High Court of Imo State seeking for an order restraining government from recognizing any person as Eze Obibiezena. That before the court could rule on the application, government recognized the Appellant as the Eze and Traditional Ruler of Obibiezena. He then applied for and the Appellant was joined in the suit he had earlier filed and the court granted an order restraining the Appellant from parading himself or functioning as the Eze of Obibiezena till the determination of the matter.
The Appellant’s case as the 6th Defendant at the trial court is that, he was identified, selected, appointed and installed by the Obibiezena Autonomous Community as the Eze of the Community sometimes in 1986 pursuant to the Constitution for the Establishment of Ezeship in Obibiezena, 1976, which is the Instrument with which the last Eze was appointed. That in a contest between him and the 5th Respondent on the 28/4/86, he scored 13 votes of the electors as against the 5th Respondent’s 8 votes, and that he was subsequently declared winner. That on the 3rd May, 1986, he was presented by the Standing Committee to the Joint Assembly of Oha Obibiezena and the Obibiezena Community. That the Joint Assembly accepted and ratified his selection and passed a resolution to that effect. He was then installed and capped in accordance with the Constitution, and subsequently issued a Certificate of Capping. He then contended that after his installation, he was presented to the Sole Administrator of Owerri Local Government on the 31/12/87 by the Obibiezena Autonomous Community together with all documents relating to his selection, appointment and installation. He denied that there was any other selection exercise on the 26/12/90 in which he participated.
It is also the Appellant’s case that, after the exercise of 26/12/90, Emeke Village wrote a protest letter to the Chairman of Ngor Okpala Local Government. That due to the exercise of 26/12/90, the Obibiezena Community wrote to government suggesting a plebiscite which government accepted.
At the close of evidence, the parties addressed the court and in a considered judgment delivered on the 12/3/2001, the learned trial Chief Judge found for the Plaintiff (5th Respondent). The Appellant being dissatisfied with that judgment has now appealed to this court vide Notice of Appeal dated the 14th day of March, 2001 and filed the same day.
The original Notice of Appeal consisted of four Grounds of Appeal and by leave of this court the Appellant filed an Amended Notice and Grounds of Appeal by incorporating four additional Grounds of Appeal. The Amended Notice and Grounds of Appeal was dated the 06/2/2003 and filed the 07/2/2003. The Grounds of Appeal, but without their particulars are as follows:
1. The learned trial Chief Judge erred in law when he assumed jurisdiction to hear and ascertain this case without a proper consideration of the issue of jurisdiction raised by the 6th Defendant/Appellant in his address.
2. The learned trial Chief Judge erred in law and misdirected himself on the facts when he held that the Plaintiff/Respondent was validly identified, selected, appointed and installed according to law when the pleadings and evidence lead at the trial do not support that conclusion.
3. The learned trial Chief Judge erred in law in granting to the Plaintiff/Respondent a relief not claimed by the Plaintiff/Respondent in his Further Amended Statement of Claim.
4. The learned trial Chief Judge erred in law in allowing an application for amendment made by the Plaintiff/Respondent after close of final addresses by all counsel and which did not have the effect of tallying with evidence already led, but, instead changed the character of the case presented by the Plaintiff/Respondent at the trial.
5. The learned trial Chief Judge erred in law when he held that the Plaintiff/Respondent has discharged the burden of proving that his purported identification, selection, appointment and installation as Eze were done in accordance with the custom and tradition of Obibiezena Autonomous Community.
6. The learned trial Chief Judge erred in law when he allowed the Plaintiff/Respondent to amend his writ of summons and statement of claim to include a course of action that was not only non-existence at the time this suit was filed but was also statute bared at the date the said application for amendment was filed.
7. The learned trial Chief Judge erred in law when he failed to make a specific finding on whether the alleged amendment of Exhibit “Y” was made in accordance with the provisions of S.15 (1) and (4) of the Traditional Rulers and Autonomous Communities Law No.11, 1981 of Imo State.
8. The learned trial chief Judge erred in law when he held that the 6th Defendant/Appellant did not prove that he was presented to the chairman of Owerri Local Government even when the fact of the said presentation was admitted by the Plaintiff/Respondent in his pleadings.
Now as required by the Rules of this court, parties filed and exchanged Briefs Argument. The Appellant’s Amended Brief of Argument was dated the 01/3/2012 and filed the 6/3/2012. The 1st and 4th Respondents’ Brief of Argument was dated 27/2/12 and deemed filed the 29/2/12 vide Motion on Notice dated 27/2/12. The 2nd and 3rd Respondents’ Brief of Argument was dated 29/2/2012 and filed the same day. The 5th Respondent’s Brief of Argument was dated 29/2/2012 and filed same day.
From the eight grounds of appeal filed, the Appellant distilled five issues for determination as follows:
1) Whether the learned trial chief Judge was right in allowing the Plaintiff/Respondent to further amend his 2nd Further Amended Statement of Claim after close of addresses by all counsel even when the said amendment was not geared towards bringing pleadings in line with the evidence on record?
2) As between the Plaintiff/Respondent and the 6th Defendant/Appellant who on the preponderance of evidence did establish that he was the person validly identified, selected, appointed and installed as the Traditional Ruler or Eze of Obibiezena Autonomous Community?
3) Whether the learned trial Chief Judge was right in allowing the Plaintiff/Respondent to amend his writ of summons and statement of claim to include a cause of action was both (sic) non-existence as at the time of the issuance of the writ summons and also statute barred?
4) Whether the learned trial chief Judge was right in granting the Plaintiff/Respondent a relief not claimed by him?
5) Whether the trial court had the jurisdiction to entertain the claim of the Plaintiff/Respondent?
In the Brief of Argument of the 1st and 4th Respondents only one issue was nominated therein for determination. It is:
“Whether the learned trial Chief Judge was right when he held that Plaintiff/Respondent was validly identified, selected, appointed and installed as the Traditional Ruler of Obibiezena Autonomous Community according to Law.”
In the 2nd and 3rd Respondents’ Brief of Argument, 6 issues were formulated for determination as follows:
1. Whether the learned trial Judge was right in granting the Plaintiff to further (sic) amend his 2nd amended statement of claim in the ruling contained in his judgment.
2. Whether the learned trial Judge was right in holding that on the balance of probabilities the Plaintiff had proved that he was the person validly identified, selected, appointed and installed and presented as the Traditional Ruler of Obibiezena Autonomous Community.
3. Whether Exhibit “F”/”U1” is the valid instrument Regulating Ezeship stool in Obibiezena Community.
4. Whether the trial court was right in allowing the joinder of the appellant and amendment of the processes to challenge his purported recognition pendete lite.
5. Whether the grant of relief xiv, though not claimed by the Plaintiff is beyond the jurisdiction of the trial court.
6. Whether the trial court had the jurisdiction to entertain this action commenced.
The 5th Respondent also nominated six (6) issues for determination. They are:
1. Whether the lower court has the jurisdiction to entertain the matter.
2. Whether the Plaintiff/Respondent proved his case as required by law.
3. Whether the trial court had the right to make the consequential order on the 4th Defendant/Respondent to give to its judgment.
4. Whether the lower court was right in allowing the amendment of the Plaintiff/Respondent’s statement of claim at the stage it did.
5. Whether the lower court was right for allowing the amendment of the writ of summons and statement of claim to include issues boarding on the purported recognition of the Appellant by the 4th Respondent during the suit before it.
6. Whether the issue of the validity of Exhibit “F” was properly raised before the lower court.
Before I proceed to a consideration of the issues raised in this appeal I find it pertinent to point out that, at the hearing of this appeal on the 23/3/2012, Mr. Alozie of learned counsel for the 2nd and 3rd Respondents had urged us to strike out the 1st and 4th Respondents’ Brief of Argument. His reason for the submission is that, the said brief breached the traditional role of a Respondent. The cases of MBA v. MBA (2010) 14 NWLR (Pt.1214) Pg. 612 at 635 and NDAYAKO v. MOHAMMED (2006) 17 NWLR (Pt.1009) Pg.655 at 679 were cited in support. I have carefully perused the two authorities cited by Mr. Alozie for his contention. The two authorities cited held, inter alia, that, a party should be consistent with the case they put up before the court. In other words, a party cannot on appeal make a case different from that put up by him at the trial court. However, Mr. Alozie of counsel did not demonstrate to us how the case put up by the 1st and 4th Respondents before this court is different from that put up by them at the trial court.
The anomaly I find in the 1st and 4th Respondents’ Brief of Argument is that, as Respondents they have supported the Appellant’s case and urged us to allow the appeal. The position they have taken, runs counter to their role as Respondents. That is so because, as Respondents, their role is to support the judgment appealed against. In other words, the primary duty of a Respondent’s brief is to support the judgment appealed against. See Order 18 rule 4(2) of the Court of Appeal Rules, 2011. See also OLAWORE v. OLANREWAJU (1998) 1 NWLR (Pt.534) Pg.436 at 455 and IHEANACHO v. EJIOGU (1995) 4 NWLR (Pt. 398) Pg. 324 at 334. To that extent, the 1st and 4th Respondents’ brief which supports the case of the Appellant and prays this court to allow the appeal and set aside the judgment appealed against is in breach of Order 18 rule 4(2) of the Court of appeal Rules, 2011 It is therefore incompetent. I hereby discountenance and strike out same.
Now, upon a careful consideration of the issues raised by the parties in this appeal, I find that, save for issue 3 raised by the 2nd and 3rd Respondents which is akin to issue 7 formulated by the 5th Respondent, the other issues raised by the 2nd, 3rd and 5th Respondents are similar in substance with the issues nominated by the Appellant. The only difference is the sequence they were formulated. I also find that the issue raised by the 2nd and 3rd Respondents, and the 5th Respondent, as to the validity of Exhibit “F” have been subsumed in the arguments of the Appellant on his issue No. 2. That being so, I shall determine this appeal on the issues formulated by the Appellant. I shall begin by issues 1 and 3, 4 and 5. I shall then conclude with issue 2.
Now, in arguing his issue No. 1, learned counsel for the Appellant relied on the cases of ALSTHOM S.A. v. SARAKI (2000) 14 NWLR (Pt.687) Pg.415 at 427 paras. A-B per Karibi-Whyte, JSC; LAGURO v. TOKU (1992) 2 NWLR (Pt.223) Pg.278 at 294-295 per Akpata JSC, OGUNTIMEHIN v. GUBERE (1964) 1 ALL NLR Pg. 176 and OJAH v. OBONI (1976) 4 S.C. Pg. 69, to submit that, amendments ought to be made for the purposes of determining the real question in controversy between the parties or to correct any defect or error in the proceedings. That the power to grant an application for amendment is at the discretion of the court, which should be exercised judicially and judiciously. That where such amendment is sought for at a stage when parties have closed their cases and counsel have addressed the court, it can only be allowed:
a) Where it is geared towards aligning pleadings with evidence already on record; and
b) Where same cannot over-reach the other party.
Learned Appellant’s counsel contended that, the Plaintiff/5th Respondent’s case was that he was identified, selected and appointed by his village; Emeke which is a component part of the community. That upon his identification, selection and appointment by Emeke village, he was called up and installed by a body known as Standing Council on Ezeship in Obibiezena as contained in paragraph 11 of the 2nd Further Amended statement of claim (Pg 278 lines 19-27) of the record of appeal, and paragraph 53 thereof. That this fact was admitted by the 5th Respondent under cross-examination at Pg. 181 lines 20-23 of the record and that that fact was admitted by the P.W.2 at Pg. 238 lines 16-20 of the record. It is also his contention that this fact was made an issue by the plaintiff/Appellant in his final address at page 467 lines 30-35 and page 468 and 469 of the records.
Based on the above stated scenario, learned counsel for the Appellant went on to submit that after all the parties had addressed the court, the 5th Respondent brought an application to further amend his 2nd Further Amended statement of claim and which application was vehemently opposed by the Appellant as the amendment tended to change the claim of the 5th Respondent, to the effect that he was identified, selected, appointed and installed by the whole Obibiezena Autonomous Community (pages 476-477 of the records). That the learned trial judge reserved Ruling therein, which he granted in the course of delivering the final judgment. Learned counsel then submitted that, the learned trial judge was in error when he granted the amendment because it totally altered the character of the plaintiff/5th Respondent’s case’ and thus over-reached the Appellant.
It is also the submission of Appellant’s learned counsel that, there is no evidence on record to support the said amendment. That the learned trial Judge was therefore wrong when he held that the amendment pleaded facts already on record and which went into evidence without objection. That the finding is perverse because the learned trial Chief Judge was aware that the 5th Respondent admitted under cross-examination that he was identified, selected, appointed and installed by Emeke village as can be seen at page 489 lines 11-14 of the record of appeal. He then submitted that the amendment brought variation between the pleadings of the 5th Respondent and his evidence in court, which were not taken by the Appellant who had concluded his address before the amendment was made.
Mr. L. M. Alozie of learned counsel for the 2nd and 3rd Respondents submitted that, the principle governing amendment of pleadings has always been to determine the real issue or issues in controversy. That in that respect, amendment of pleading could be allowed even if it leads to the collapse of the opponent’s case. He also contended that any party to the suit can be granted amendment to his pleading even on the day of judgment only if that would enable the court to determine the issue and do substantial justice between the parties. The cases of ALSTHOM S.A, v. SARAKI (2000) 14 NWLR (Pt.687) Pg.415 at 427; CHIEF EMMANUEL EYO ITA v. ELDER OKON H. A. DADZIE (2002) 4 NWLR (Pt. 652) Pg. 168 at Pg. 182 per Opene, JCA; IGWE v. KALU (2002) 5 NWLR (Pt. 678) Pg. 678; FIRST BANK OF NIG. PLC v. M.O. KANU SONS & CO. LTD. (1999) 9 NWLR (Pt. 619) Pg. 484 at 500 and R.B.K. OKAFOR v. IKEANYI & ORS (1979) 3-4 S.C. Pg. 99, were cited in support.
Based upon the above stated principles, learned counsel for the 3rd and 4th Respondents contended that, the true position as reflected on the record is that the amendment was sought while the parties were still in the process of addressing the court, as parties filed Written Addresses. That before the parties adopted their Written Addresses on the 02/11/2000, the court heard the motion for amendment, and the court stated clearly that it would take argument of the Defendants on the 13/11/2000 and rule on the motion for amendment in the course of judgment. That it is therefore false and misleading to state that the amendment was sought after close of addresses. He then relied on the cases of LAGURO v. TOKU (1992) 2 NWLR (Pt. 223) Pg. 278 at 294 and ALSTHOM S.A. v. SARAKI (supra) at Pg. 427 to submit that, the amendment could be granted after the close of addresses, if it is intended to bring the evidence already on record in line with the pleadings.
Learned counsel for the 2nd and 3rd Respondents also referred to the testimony of the witnesses at page 283 lines 16-20 and that of the Plaintiff/5th Respondent at pages 228 lines 12- 15 and 235 lines 22-26 to submit that there is abundant evidence on the record to support the fact that the 5th Respondent was identified, selected, appointed and installed by the whole Obibiezena Autonomous Community. That in any case, it is common ground between the Appellant and the 5th Respondent that on the death of the last Eze, it was the turn of Emeke village from which both parties hail to select the Eze for Obibiezena Autonomous Community and that, it was the village in conjunction with the Standing Council on Ezeship that was responsible for identification, selection and installation on behalf of the entire community. He then submitted that, with the abundance of evidence on the record to the effect that the 5th Respondent was identified, selected, appointed and installed by the entire Obibiezena Community it would have been wrong in law for the learned trial judge to refuse the application for amendment. That the 3rd prayer on the motion paper seeking for amendment sought that the 3rd further amended Statement of Claim be deemed as properly filed and served, the appropriate filing fees having been paid, and that it was so granted. The case of KATTO v. C.B.N. (1999) 6 NWLR (Pt. 607) Pg. 390 at 312 Paras. D-E per Iguh; JSC was cited in support. That the learned trial Chief Judge was therefore right in granting the application for amendment.
Learned counsel for the 5th Respondent also submitted that, an amendment can be granted even in the Court of Appeal, where it will not work hardship or injustice on the other side or over-reach the case of the adverse party. The cases of IGWE v. KALU (2002) FWLR (Pt. 97) Pg. 677 at 713; IKYERNUM v. IORKUMBUR (2002) 11 NWLR (Pt. 777) Pg. 52; FAGBULE v. BODRIGUES (2002) 7 NWLR (Pt. 765) Pg. 188; ADEKEYE v. AKINLOGBADE (1987) 3 NWLR (Pt. 60) and IPADEOLA v. OSHOWOLE & ANOR (1987) 5 S.C. Pg.376 were cited in support. That the motion for amendment sought to delete Paragraphs 11 and 12 of the 2nd Amendment Statement of Claim and substitute the same with new paragraphs. It also asked for a deeming order. That at that stage, evidence had closed and that amendment sought was only intended to bring the pleading to tally with the evidence led at the trial and that no further witness was called or recalled after the grant of the amendment which was granted in the course of final judgment.
Learned counsel then contended that, it is not correct as claimed by the Appellant that the motion was granted after close of the parties’ cases and final addresses, as the addresses came after the filing and hearing of the motion for amendment. That under Order 26 rules 1, 2 and 3 of the Imo State High Court (Civil procedure Rules, 1988, the court has the power to grant an amendment at any stage of the proceedings before judgment. That the 5th Respondent had testified that he was appointed and selected as the Eze of the Community, and tendered the appointment letter, and other paraphernalia of the office which were handed to him at his installation. That the P.W.2 also testified that the 5th Respondent was identified, selected, appointed and installed as the Eze of the community. That it is those pieces of evidence that the amendment sought to bring in so as to regularize the pleading to be in line with the evidence before the court, and that no fresh issue were raised or introduced, neither was the character of the case changed. He then submitted that this ground lacks merit.
The general principles on amendment of pleadings is that, an amendment should be allowed for the purpose of determining the real questions in controversy between the parties, unless such an amendment will entail injustice or surprise or embarrassment to the other party, or where the Applicant is shown to be acting mala fide or that by his blunder he has caused or done some injury to the adversary which cannot be compensated by way of award of costs or otherwise. This is so because, the object of the court is to decide the rights and obligations of the parties and not to punish them for mistakes which they may have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thus, the rules governing the amendment of pleadings are flexible, and therefore depend to a great dear on the discretion of the judge. That is more so when the decision whether or not to grant an amendment to the pleadings depend entirely at the discretion of the court. See AJAH v. OGBONI (1976) 10 N.S.C.C. Pg. 244 at 247; OKAFOR v. IKEANYI (1979) 12 N.S.C.C. Pg. 42 at 47; ADETUTU v. ADEROHUNMU (1984) 15 N.S.C.C. Pg. 389.

On the other hand, an amendment to pleading may be granted at any time before judgment. It can therefore be granted even after the close of evidence and addresses of counsel, but before judgment. A trial court should however be reluctant to grant amendment to the pleadings after the close of the case before judgment. See UMEOJIAKO v. EZENAMUO (1990) 1 NWLR (Pt. 126) Pg. 253 at 266; AKINKUOWO v. FAFIMOJU (1965) N.M.L.R. Pg.349.
In considering whether or not to grant an application for amendment of pleadings, the court will take into consideration the following factors:
a. The attitude of the applicant;
b. The reason and nature of the amendment sought;
c. The time factor in relation to the suit;
d. The stage at which the amendment is sought;
e. All other relevant circumstances.
See AKANINWO v. NSIRIM (2008) 9 NWLR (Pt.1093) Pg.439 and ALSTHOM v. SARAKI (2000) 14 NWLR (Pt.687) Pg.415.
In the instant case, the Appellant’s complaint is that, the trial court granted the amendment in the course of the judgment. That the application seeking the amendment was made after the close of evidence and the addresses of counsel. He also contends that the amendment had the effect of changing the character of the 5th Respondent’s claim. The Respondents contend that the amendment sought was merely to bring the statement of claim in line with the evidence given by the Respondent at the trial. As earlier stated, an amendment can be granted at any time before judgment. One of such circumstances where an amendment of pleadings can be granted is for the purpose of adjusting a party’s pleadings to be in line with the evidence adduced and objected to. In other words, amendment to the pleadings can be granted at any time before judgment where the matter involved has been raised in the course of the trial and counsel have addressed the court on it, since such amendment will only be incorporating in the pleadings evidence which has emerged in the course of the trial as an issue between the parties. See A.C.B. LTD v. EMARAMI (1978) 4 S.C. Pg.99; TAIWO v. AKINWUNMI (1975) 9 N.S.C.C. Pg.224; OGUNTIMEHIN v. GUBERE (1964) 3 N.S.C.C. Pg.124; GBADAMOSI v. KABO TRAVELS LTD. (2000) 8 NWLR (Pt.668) Pg.243. In such a circumstance, the amendment will be refused if the amendment will conflict or be in disharmony with the evidence already given in the case. See JESSICA TRADING CO. v. BENDEL INS. CO. LTD. (1993) 1 NWLR (Pt.271) Pg.538 and IGWE v. KALU (2000) 5 NWLR (Pt. 761) Pg. 678.
To effectively comprehend this issue, I find it pertinent to refer to the pleadings of the 5th Respondent sought to be amended and the nature of the amendment sought to be introduced vis-a-vis the evidence adduced by him at the trial. The pertinent paragraphs of the statement of claim sought to be amended are paragraphs 11 and 12 of the 2nd Further Amended Statement of Claim. Those paragraphs stated thus:
“11. The Plaintiff was subsequently identified and selected by the “Emeke” village to which he belongs. Following the said identification and selection, the Plaintiff was installed the Eze of Obibiezena Autonomous Community on the 4th day of June, 1986.
12. After the said installation of the Plaintiff as the Eze-Elect of Obibiezena Autonomous Community, all the paraphernalia of office used by the former Eze of the Obibiezena Autonomous, Mr. J.A. Nnodi, were handed over to the Plaintiff by the Community. Such items includes: the throne, the staff of office, etc which are still in the possession of the Plaintiff till date.”
The Amendments sought and granted are as stated in the 3rd Further Amended statement of claim. See pages 21-32 of the Supplementary Record of Appeal. The Amendments granted therein are that:
“11. The Plaintiff was subsequently identified and selected by Emeke village to which he belongs. Following the said identification and selection of the Plaintiff by his village Emeke, he was appointed and installed on the 4th day of June, 1986 by the Obibiezena Autonomous Community.
12. After the said installation of the Plaintiff as the Eze-Elect of Obibiezena Autonomous Community, all the paraphernalia of office used by the former traditional Ruler, Eze of Obidiezena Autonomous Community, late Mr. Eze J.A. Nnodi, were handed over to the Plaintiff by the Community. Such items include the throne, the staff of office etc, which are still in the possession of the Plaintiff till date.”
At the trial the 5th Respondent who testified as the PW1 stated that:
“After the period of one year had lapsed, the 3rd Defendant wrote to Emeke Obibi, whose turn it was to produce the Eze or Traditional Ruler, to produce the next Eze. There was an identification of myself, Leonard E. Ishiguzo as Eze-Elect of Obibiezena. That was in 1986. There was no other person, except myself who was identified, selected and appointed by Obibiezena Community. Thereafter I was called upon by the Standing Council on Ezeship to be installed as the Eze of Obibiezena which then took place on 4th June, 1986 at Orie Obibi Square where we conduct important traditional ceremonies. I was actually installed as the Eze of the Community.
After the installation the community transferred to me the throne, the staff of office, coral beads of the late Eze. These are still in my possession. The community thereafter presented me to the then Chairman Owerri Local Government under the Chairmanship of R.C. Azuatalam.”
It is clear from the testimony of the 5th Respondent reproduced above that, his testimony is to the effect that he was identified, selected and appointed by his village of Emeke and subsequently installed Eze of Obibiezena Autonomous Community in 1986 at Orie Obibi Square by the Obibiezena Community, and all the paraphernalia of office used by the former Eze were presented to him. That is clearly what the amendment sought to and was allowed to be brought in. The amendment sought does not conflict with the evidence led at the trial. In any case, it is clear from the record that, at the time the application for amendment was made, the parties were yet to adopt their written addresses. Furthermore, the amendment did not in any way change the character of the dispute in the case, which is, as between the Appellant and the 5th Respondent, who was the rightful party identified, selected, appointed and installed as the Eze of the obibiezena Autonomous community. No new issue was introduced, nor fresh evidence called. I therefore hold that the learned trial Chief Judge was not wrong in granting the amendment. This issue is therefore resolved in favour of the Respondents.
Akin to the above issue is issue No. 3 which is whether the learned trial Chief Judge was right in allowing the 5th Respondent to amend his original writ of summons and statement of claim to include a cause of action that was not in existence as at the clay, the original writ was issued and also statute barred as at the day the application for amendment was filed.
Arguing the issue, learned counsel for the Appellant submitted that the law is that, an amendment which has the effect of setting up a claim that is statute barred, will not be allowed. The cases of WELDON v. NEAL (1887) Q.B.D. Pg. 395 and MARSHAL v. LONDON PASSENGER TRANSPORT BOARD (1936) 3 ALL B.R. Pg. 83 were cited in support. That an amendment will not be allowed if it will result in a new cause of action which did not exist on the date of the issue of the writ. He then relied on the cases of ESHBLBY v. FEDERATED EUROPEAN BANK LTD. (1932) 1 K.B. Pg.254 at 261 and MOHAMMED v. U.B.A. (1976) 2 FWLR Pg. 21, to further submit that all facts constituting the cause of action must have come into existence before the writ is issued, otherwise the writ will be void.
It is therefore his contention that, the 5th Respondent filed his original writ of summons on 2/9/93 and statement of claim on 8/10/93 and that the claims endorsed on the said writ and statement of claim did not include a claim for setting aside of the recognition of the Appellant, because as at the date of issuance of the writ, the Appellant had not been recognized. That he was only recognized on the 28/9/93 and the 5th Respondent became aware of the recognition on the 29/9/92. It is therefore the submission of the Appellant that time started running for the 5th Respondent on the date he became aware of the recognition of the Appellant. The cases of AMADI v. MILAD, IMO STATE (2000) 4 NWLR (Pt.652) Pg. 328 at 337 was cited in support. That the 5th Respondent only filed the application for amendment in order to include this fresh issue or cause of action and join the Appellant on the 29/12/93, which is a period of nearly 3 months from the day of the recognition. Learned counsel then submitted that, the trial court was therefore in error when it allowed the 5th Respondent to amend the writ of summons to include a cause of action that was non-existent as at the date the writ was issued. That the only exception which would have permitted the said amendment is when the amendment was meant to add further claims arising from the same existing cause of action. He relied on the case of OGUMA ASSOC. COMPANIES (NIG.) LTD v. IBWA LTD. (1988) 18 N.S.C.C. (Pt.1) Pg.395 at 406-407. That the exception does not only apply in the instant case, as the Appellant was not a party to the original suit but joined after the amendment.
It is also the contention of the Appellant that, the trial court was also wrong in allowing the said amendment when the cause of action was statute barred by virtue of section 25 of the Traditional Rulers and Autonomous Communities Law, No. 11 of 1981, Laws of Imo State. That the amendment was statute barred in that the application for the amendment was filed outside the period allowed by the statute (supra). Learned Appellant’s counsel then argued strenuously that the case of NWAMARA v. OKEAHIALAM (1999) 1 NWLR (Pt.588) Pg.590 at 601 paras. B-C and at 602 paras G-H affecting section 25 of the Traditional Rulers and Autonomous Communities Law (supra) does not and should not be applied to invalidate the 21 days period contained in the said section of the Law. That, if the blue pencil rule for the severance of a part of a Legislation that is good from the part that is bad, is applied, this court would find that the decision arrived at in NWAMARA v. OKEAHIALAM (supra) does not affect the 21 days period allowed a party aggrieved by the recognition of any person as an Eze. The cases of A.G., OF ABIA STATE & 35 ORS. v. A.G., OF THE FEDERATION (2002) 6 NWLR (Pt.763) Pg.364 at 436; DOHERTY v. BALEWA & ORS. (1961) ALL NWLR Pg.632 and BALEWA v. DOHERTY (1963) 1 WLR Pg. 943; EHIKHAMWEN v. ILUOBE (2000) 2 NWLR (Pt.750) Pg.151 at 170-171 and OKEAHIALAM v. NWAMARA (2003) 12 NWLR (Pt.835) Pg.597 at 612 para. H, were cited in support. We were then urged to hold that the learned trial chief Judge was wrong in granting the amendment.
On this issue, learned counsel for the 2nd and 3rd Respondents contended that, the argument of the Appellant that the amendment of the writ of summons and statement of claim of the 5th Respondent introduced a cause of action that was not in existence when the action started is unfounded. That what was in issue is the Ezeship of the Obibiezena Autonomous Community which each of the Appellant and the 6th Respondent lays claim to. He also relied on the case of OGUMA ASSOCIATION COMPANIES (NIG.) LTD V. IBWA (1988) 3 S.C.N.J. (Pt.1) Pg.13, to submit that the amendment made was merely a different approach or additional approach to the case on the same facts so as to avoid multiplicity of action on the same facts and by the same parties.
The learned counsel for the 2nd and 3rd Respondents further submitted that, it is clear from the facts on the record that, the 5th Respondent went to court against the 1st and 4th Respondents to restrain the holding of a plebiscite that was aimed at nullifying the selection of the 5th Respondent as the Eze of Obibiezena. That the Appellant personally applied to be joined in the suit on the 27/9/93, after the court had made an interim order preserving the status quo on 9/9/93. The application for joinder is at pages 707-714 of the record of appeal while the order of the court is at page 715 of the said record. That before the Appellant’s application for joinder could be determined, the Appellant was recognized by the 4th Respondent in violation of the interim order, and the Appellant then withdrew his motion to be joined. It was therefore with a view to challenging the said recognition that the 5th Respondent applied to amend his writ of summons and statement of claim so as to join the Appellant for the efficacy of his prayer seeking to nullify the said recognition. It was also contended by the 5th Respondent that the Appellant did not oppose the application for amendment.
Learned counsel for the 5th Respondent also submitted that the parties have been disputing over the Ezeship of the community since 1987 as evidenced by Exhibits “P” and “O” which are previous suits filed in respect of the matter before the instant suit was instituted. That before the government of Imo State proposed the plebiscite which culminated into the present action, there was therefore a controversy surrounding the Ezeship of Obibiezena. He then submitted that it is therefore preposterous to argue that the amendment had introduced a cause of action that did not exist at the time the action against the Appellant was filed. That the amendment was therefore to properly situate the issues before the court for a just and equitable decision on the dispute between the parties.
The submission of learned counsel for the 5th Respondent is substantially the same as that of the 2nd and 3rd Respondents. In addition, learned counsel for the 3rd and 4th Respondents contended that when the 5th Respondent discovered the anomaly in the purported recognition of the Appellant by the 4th Respondent, he sought the amendment so as to bring in the Appellant who was the beneficiary of the illegal acts of the 4th Respondent and further prayed that the purported recognition of the Appellant as the Traditional Ruler of Obibiezena Autonomous Community during the pendency of the substantive suit be declared as null and void. That the 6th Defendant/Appellant who was properly served the motion did not oppose the application for his joinder and amendment of the writ of summons and statement of claim. He then submitted that the trial court was right in joining the Appellant, having found that he is a person who claims an interest in the subject matter of the action instituted by the 5th Respondent, and that the trial court was equally right in granting the amendment to the statement of claim, so as to properly determine the legitimacy of the purported recognition of the Appellant. The cases of OKAFOR v. A.G., ANAMBRA STATE (1988) 2 NWLR (Pt.79) Pg.76; MILITARY GOVERNOR OF LAGOS STATE v. OJUKWU (1986) 1 NWLR (Pt.18) Pg.621; KIGO NIG, LTD. v. HOLMAN BROS, NIG. LTD, (1980) 5-7 S.C, Pg.60 and MAJEKODUNMI v. CO-OPERATIVE BANK LTD. (1997) 16 NWLR (Pt.524) Pg.198 were cited in support. We were then urged to hold that, the amendment was just and legal.
The principles of law in respect of amendment of pleadings had earlier been stated in resolving issue one. I only need to add here that, an amendment would not be granted if it would introduce a new issue or cause of action that did not exist at the time the action was filed. In other words, an amendment which tends to create a suit that was not in existence at the time of filing of the writ will not be granted. See PEDRO ST. MATHEW DANIEL v. BAMGBOSE 19 N.L.R. Pg.7 and IWEKA v. S.C.O.A. (2000) 15 W.R.N. Pg.106. However, an amendment may be allowed in the pleadings even if the amendment will add to or substitute a new cause of action provided that the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which the Plaintiff has already claimed in the action.
The background facts leading to the institution of this action has been adequately summed by learned counsel for the 2nd and 3rd Respondents. What appears clear and undisputed is that there has been a lingering dispute as to who between the Appellant and the 5th Respondent was validly identified, selected, appointed and installed as the Eze of Obibiezena. That dispute has lingered on since 1987 as evidenced by various court actions as seen in Exhibits “P”, “O” and “V3” respectively. The 5th Respondent had maintained that he was the person validly identified, selected, appointed, installed and presented for recognition by the 4th Respondent as the Eze of the Autonomous Community. That instead of recognizing him, the Government of Imo State through Ngor Okpala Local Government directed that a plebiscite be held so as to determine the issue between the Appellant and the 5th Respondent. The 5th Respondent who felt dissatisfied by the directive of government, approached the trial court to protect his selection. He then applied for and got interim order of the court directing that the status quo be maintained. However, in total disregard to the order of the court, the 4th Respondent recognized the Appellant as the Eze of Obibiezena Autonomous Community even without conducting the plebiscite. Though the Appellant had applied to be joined as a Defendant, he subsequently withdrew the motion upon his recognition by the 4th Respondent. The action of the 4th Respondent prompted the 5th Respondent to apply for and did get an order of court joining the Appellant as a Defendant in the suit he had earlier initiated, and also got an order of the court amending the statement of claim to include a relief by way of declaration that the recognition of the Appellant be declared as null and void having been done lis pendens.
From the above scenario, it is clear that, the cause of action in this suit is the dispute between the Appellant and the 5th Respondent as to who among them was validly identified, selected, appointed and presented for recognition as the Eze of Obibiezena Autonomous Community. All the other facts such as the directive for a plebiscita and the recognition of the Appellant by the 4th Respondent arise from that dispute. In other words the other facts flow from and are intricately connected with the dispute between the Appellant and the 5th Respondent. That being so, the relief sought by the 5th Respondent that the recognition of the Appellant by the 4th Respondent be declared null and void does not create a distinct cause of action. It is merely a relief sought in order to give effect to the 5th Respondent’s claims before the court, and which flowed from the dispute between them. In other words, it is not a new cause of action but a relief flowing from the Respondent’s claim before the court. It arises from the same facts. It is therefore erroneous for the Appellant to contend that the relief claimed has created a new cause of action. It has not.
The Appellant also contends that, the amendment granted the 5th Respondent created an action which was statute barred by virtue of section 25 of the Traditional Rulers and to Autonomous Communities Law No. 11 of Imo State, 1981, in that the application for amendment was filed outside the period allowed by the law cited above. My short answer to this contention of the Appellant is that, he was represented by counsel at the hearing but he did not oppose the application being granted. Furthermore, the law is that, a party who wishes to rely on the defence that an action is statute barred or that an action has been brought outside the time specifically prescribed by statute must specifically plead same. See IHEANACHO v. EJIOGU (1995) 4 NWLR (Pt.389) Pg.324; KETU v. ONIKORO (1984) 10 S.C. Pg.265 and LEVENTIS TECH. CO. LTD. V PETRO-JESSICA ENT, LTD. (1992) 2 NWLR (Pt.224) Pg.459. See also NIGER/BENUE, TRANS.CO. LTD. v. NARUMAL & SONS NIG. LTD. (1986) 2 N.S.C.C. Pg.485. In the instant case, I find from the record that this fact of the action of the Respondent being statute barred was not pleaded by the Appellant. He cannot now raise same in this appeal without the leave of this court. On the whole therefore I also resolve issue No. 3 in favour of the Respondents.
I now proceed to consider issue No. 4, which is whether the learned trial Chief Judge was right in granting the Plaintiff/Respondent a relief not claimed by him. ‘
On that issue, learned counsel for the Appellant submitted that, it is now settled law that courts have no jurisdiction to grant to a party a relief not sought and that where such a relief is granted, same can be set aside by an appellate court. The cases of OTI v. OTI (2002) 12 NWLR (Pt.785) Pg. 629 at 638 and FAGBULES v. RODRIGUES (2002) 7 NWLR (Pt.765) Pg. 188 at 220 were cited in support. That the 5th Respondent by paragraph 70(i)-(ix) of his 3rd Further Amendment Statement of Claim sought for only 9 heads of reliefs against the Defendants, but in delivering judgment, the trial court granted all the reliefs sought and proceeded to order for a mandatory injunction compelling the 1st and 4th Defendants/Respondents to give effect to the recommendations submitted to them as it concerns the 5th Respondent so as to actualize his recognition as the traditional Ruler of Obibiezena Community. That the said relief was not one of the reliefs sought, and that the relief granted is not a consequential relief in its own right. We were then urged to hold that the learned trial Chief Judge was wrong in granting the 6th Respondent a relief not sought by him.
Learned counsel for the 2nd and 3rd Respondents submitted that, the grant of that relief is within the jurisdiction of the trial court. That it is wrong for the Appellant to argue that the trial court granted a relief not sought. That by Order 47 rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988, the court was empowered to make consequential orders in its judgment so as to give effect to that judgment, so long as it is consequential to the main relief. He then submitted that, a close look at the reliefs sought by the 5th Respondent will show that, the order made by the trial court was a consequential order to give effect to the judgment. The cases of A.G., FEDERATION v. A.J.C. LTD. (2000) 10 NWLR (Pt.675) Pg. 293 at Pg. 307; AKINBOBOLA v. PLISSON FISKO (1991) 1 NWLR (Pt.167) Pg.270 and GBADAMOSI & ORS. v. ALETE (1993) NWLR (Pt.293) Pg.113 were cited in support.
Learned counsel went on to submit that, the 5th Respondent had sought for a declaration that having been lawfully and constitutionally identified, selected, appointed and installed as the Eze of Obibiezena Autonomous Community, he is entitled to be accorded recognition by the 1st and 4th Defendants/Respondents as the Eze of the Community. That the 5th Respondent also prayed that having been lawfully identified, selected, appointed and installed, and presented by his community as the traditional Ruler of the Community, in accordance with the Ezeship Constitution and the Traditional Rulers and Autonomous communities Law of Imo state, he is entitled to be accorded recognition by the 1st and 4th Respondents. It was therefore submitted that the order granted by the trial court flows from those reliefs sought, as it is meant to give backing to those reliefs already granted by the court.
It is also the contention of learned counsel for the 2nd and 3rd Respondents that, the Appellant has not shown that the persons against whom the order was made are not parties to the suit. That since the order was not directed against him, he has no right to complain, and that the right to complain lies with the parties the order was made against. Furthermore, that the court having declared the recognition of the Appellant illegal, null and void, and having restrained him from parading himself or doing anything as it concerns the Ezeship stool, in dispute, he is not in a position to complain. He relied on the case of A.G., FEDERATION V. A.I.C. LTD. (supra) at Pgs. 308 paras. B-F and 312 paras. A-C. We were then urged to resolve this issue in favour of the Respondents.
It is the submission of learned counsel for the 5th Respondent, which is in line with that of the 2nd and 3rd Respondents that, order 47 rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988 gives power to a trial court to make an order it considers necessary for doing justice, whether such order has been expressly asked for or not, by the person entitled to the benefit of the order. He then relied on the case of FELIX EZE ONWU v. CHIEF CHARLES ONYECHI (1996) 3 NWLR (Pt.438) Pg. 99 at 521; AKEEM v. UNIVERSITY OF IBADAN (2003) 10 NWLR (Pt. 829) Pg. 584 AT 596 – 597; AKINBOLA v. PLISSON (NIG.) LTD. (supra) and N.D.I.C. v. SAVANNAH BANK PLC. (2003) NWLR (Pt.801) Pg. 311 at 367, to submit that, the relief complained of, granted the 5th Respondent by the trial court was a consequential relief, flowing directly from and gives effect to reliefs 1 and 2 expressly asked and granted by the court.
Now, it is settled law that a party cannot in law be awarded a relief not claimed or sought by him in his statement of claim. Accordingly, for a party to be entitled to any relief, he must not only claim it, but he must plead it and adduce evidence showing that his is entitled to what he has pleaded. See HASSAN v. MAIDUGURI MGT. COMMITTEE (1991) 8 NWLR (Pt.212) Pg.738; O.S.H.C. v. SHITTU (1994) 1 NWLR (Pt.321) Pg.476; OKEONG v. MIGLIORE (1979) 12 N.S.C.C. Pg.210 and I.B.W.A. v. KENNEDY TRANSPORT (NIG.) LTD. (1993) 7 NWLR (Pt.304) Pg.238. See also OLANLOYE v. FATUNBI (1999) 8 NWLR (Pt.614) Pg.203. A court of law therefore has no jurisdiction to award what was not pleaded or asked for’ It may grant less but not more than what the parties have claimed. See ADEMOLA v’ SODIPE (1992) 7 NWLR (Pt.253) Pp.251 and DURU v. STATE (1993) 3 NWLR (Pt.281) Pg.283. To determine whether a relief not claimed was granted, the court will consider only the Plaintiff s statement of claim, in the absence of a counter claim. See OLANLOYE v. FATUNBI (supra) at Pp.225-226.
The above statement of law is the general principle. Accordingly, where the relief is ancillary or incidental to the substantive claim it may be granted. See LAWAL v. ADENIJI (1997) 3 NWLR (Pt.494) Pg.457; B.O.N. LTD. v. MURI (1998) 2 NWLR (Pt.536) Pg.153 and REGISTERED TRUSTEES, APOSTOLIC CHURCH v. OLOWOLENI (1990) 6 NWLR (Pt.158) Pg.514. One other situation which a court may grant a relief not specifically pleaded or asked for is as provided under Order 47 rule 1 of the Imo State High Court (Civil Procedure Rules 1988. Therein, a court may make an order in which it considers necessary for the doing of justice, whether same has been expressly asked for by the person entitled to the benefit of the order or not. The purpose of providing for such special power is to grant power to a trial court to ensure that all matters in controversy between the parties are completely and finally determined so as to avoid multiplicity of actions. See ATOYEBI v. BELLO (1997) 11 NWLR (Pt.528) Pg. 268.

A trial court may also grant a relief not specifically asked for, by way of a consequential order. Such consequential order is not one which is merely incidental to the claims, but one which necessarily flow directly and naturally from the Plaintiffs claim. It is inevitably consequent upon the claim, and is given so as to give effect to the judgment already given. See EKPUK v. OKON (2002) 5 NWLR (Pt.760) Pg. 445 at 477 per Edozie, JCA (as he then was).
Now, as rightly submitted by learned counsel for the Respondents, the 5th Respondent had sought an order of the trial court, declaring that having been lawfully and constitutionally identified, selected, appointed and installed as the Eze-Elect of Obibiezena Autonomous Community, he is entitled to be so recognized by the 1st and 4th Respondents as the Eze of the Autonomous Community. He also prayed that it be declared that having been lawfully identified, selected, appointed, installed and presented by his community as the Traditional Ruler of the said Community in accordance with the Obibiezena Ezeship Constitution and the Traditional Rulers and Autonomous Communities Law of Imo State, he is entitled to be accorded recognition by the 1st and 4th Respondents. It is also evident on the record that the 4th Respondent accorded recognition to the Appellant at the expense of the 5th Respondent, even during the pendency of the suit filed by the 5th Respondent, and also in violation of an interim order of the court that the status quo be maintained. The record also shows that the lower court granted the declaratory reliefs asked by the 5th Respondent that he be accorded recognition by the 1st and 4th Respondents. The learned trial Judge consequently issued an order of mandatory injunction compelling the 1st, 2nd and 5th Respondents to give effect to the recommendations submitted to them as concerns the Plaintiff (5th Respondent). I do agree with the Respondents that the order of mandatory injunction so granted is meant to give effect to those declaratory orders. It is a relief which flow naturally from the claim of the 5th Respondent before the court. If it had not been granted, it would mean that the 5th Respondent would still have to file another suit in order to reap the benefit of the declaratory reliefs made in his favour since it is the law that declaratory orders are not executory. That would certainly create a multiplicity of actions on the same subject matter. The learned trial Chief Judge was therefore right when he made the mandatory order, so as to avoid such duplication or multiplicity of action. This issue is therefore resolved in favour of the Respondents.
Issue No. 5 questions whether the learned trial Chief Judge had the jurisdiction to entertain the 5th Respondent’s claim.
Arguing this issue, learned counsel for the Appellant cited the cases of OGUNDIPE v. AKINLOYE (2002) 10 NWLR (Pt.775) Pg.312 at 333 and MADUKOLUM v. NKEMDILIM (1962) 2 S.C.N.L.R. Pg.342 to submit that in determining whether or not a court has jurisdiction, a court will consider if inter alia.
(a) it has jurisdiction over the subject matter and
(b) the action is initiated by due process of law.
That in the instant case, the Plaintiff/Respondent by his original writ of summons and statement of claim, brought this action claiming three reliefs as endorsed on the writ and statement of claim, wherein he sought for binding declaratory reliefs and injunctive orders in respect of the decision of an authority appointed by statute to make such decisions. That the decision in question was the decision of the Governor of Imo State in respect of the recognition of a Traditional Ruler for Obibiezena Autonomous Community pursuant to section 7 of the Traditional Rulers and Autonomous Communities law No. 11 of 1981 of Imo State. He then submitted that the trial court lacked the jurisdiction to grant those reliefs as endorsed on the said writ of summons and Statement of claim.
It is also the contention of learned Appellant’s counsel that the learned trial judge erred when he granted the declaratory and injunctive reliefs as contained at pages 510 and 511 – 512 of the record of appeal because they relate to or are in respect of a decision of a body, person or authority prescribed by or appointed by statute to take such decision. The cases of EGUANWENSE v. AMAGHIZIWUEN (1993) 9 NWLR (Pt.315) Pg.1 at 20 paras. F-G; IGBINEWEKA v. EGBUNA (1964) NLR Pg.219; BELLO v. EWEKA (1981) 1 S.C. Pg.101 and NWAMARA v. OKEAHIALAM (supra) were cited in support. That the Governor has performed his duty or exercised his authority conferred on him pursuant to section 7 of Law No.11 of 1981, Laws of Imo State by according recognition to the Appellant as shown by Exhibit “FF” at page 612 of the records. He then submitted that the only course open to the 5th Respondent who is aggrieved by the Governor’s decision is to invoke the supervisory jurisdiction of the High court for the issuance of certiorari to quash such decision. That by coming by way of writ asking for the reliefs stated therein, the 5th Respondent did not initiate his suit by due process of the law, and the trial court therefore, had no jurisdiction to entertain the suit.
Mr. L. M. Alozie of learned counsel for the 2nd and 3rd Respondents contended that the issue of jurisdiction raised by the Appellant is frivolous. That there is in law a difference between jurisdiction on a subject matter and procedural jurisdiction. That while a substantive jurisdiction cannot be expanded or compromised, procedural jurisdiction could be waived or acquiesced to by the affected party. He then submitted that, where a wrong procedure was adopted in commencing a suit or action, and no objection was raised by the adverse party, the proceeding based on such wrong procedure is valid. He then cited the cases of KOSSEN (NIG.) LTD v. SAVANNAH BANK (NIG.) LTD. (1995) 9 NWLR (Pt.420) Pg.439 and ADEBAYO JOHNSON (1969) 1 NLR Pg.176 in support. That the instant case was commenced by way of writ of summons and not by way of ordinary application for judicial review. That the gravamen of the 5th Respondent’s complaint was not about denial of fair hearing, thus the proviso of section 25 of the Imo State Traditional Rulers and Autonomous Communities law (supra) does not apply. He cited the cases of ABIA STATE v. AGHARANYA (1999) 6 NWLR (Pt.607) Pg. 362; AMADI v. MIL. GOVERNOR IMO STATE (2000) 4 NWLR (Pt.652) Pg. 328; NZE NWAMARA v. L.U. OKEAHIALAM & ORS. (1993) 3 NWLR (Pt.224) Pg. 396 and OKEAHIALAM v. NWAMARA (2003) 12 NWLR (Pt. 835) Pg. 597, to submit the 5th Respondent’s action as constituted was valid.
It is also the submission of learned counsel that the case of EGUAMWENSE v. AMAGHIZEWUEN (supra) cited by the Appellant and similar cases cited and relied on by the appellant are inapplicable to this case. That in the EGUAMWENSE case cited, the Supreme Court made it clear that a party aggrieved by wrongful recognition of the wrong candidate by the Governor can challenge such recognition by way of declaratory actions commenced by writ of summons. That only actions brought by way of judicial review are affected by the provisions of section 25 of Law No. 11 of 1981. We were then urged to resolve this issue in favour of the Respondents.
Learned counsel for the 5th Respondents, gave a brief history of the events leading to the institution of this action by the 5th Respondent and submitted that the trial court had the jurisdiction to entertain the case. That at the time the action was initiated, the 4th Respondent and the Appellant were not joined as the 5th Respondent only sued those responsible for the intended referendum. That the Plaintiff/5th Respondent’s action is within jurisdiction because:
(a) It is not caught by any statute of limitation;
(b) The proper parties are before the court;
(c) The subject matter is within jurisdiction i.e. Ezeship.
(d) It was initiated by due process of law i.e. writ of summons; and
(e) There was a justifiable controversy between the parties.
He also relied on the case of A.G., ABIA STATE v. AHARANYA (supra); A.G., ANAMBRA STATE v. OKAFOR (supra); ONYELAKUN v. GOVERNOR OF OSUN STATE (2003) FWLR (Pt.135) Pg.633 and OKEAHIALAM v. NWAMARA (supra), all cited by learned counsel for the 5th Respondent to submit that the contention of the Appellant on this issue is misplaced. He then urged us to resolve this issue in favour of the Respondents.
Now, a careful consideration of the contention of the Appellant would reveal that it is to the effect that, as the reliefs sought by the 5th Respondent are premised on the decision of an authority prescribed by statute; to wit section 7 of the Traditional Rulers and Autonomous Communities Law No. 11 1981 of Imo State, the court lacked the jurisdiction to entertain same. That the authority (Governor) had taken the decision of recognizing an Eze for an Autonomous Community, the only remedy available to a person aggrieved by that decision is to apply to the High Court to have that decision set aside by way of judicial review. The Respondents are of the view that since the Appellant is not contending that the trial court had no substantive jurisdiction to try the subject matter of the dispute, the Appellant’s objection is merely on the procedure for the initiation of the action, and as the Appellant did not oppose that procedure at the trial court, he is deemed to have waived same.
Indeed, the law recognizes the difference between defects in jurisdiction and defect in procedure. In the determination of this issue, it is not the case of the Appellant that the Respondent did not comply with the procedural steps provided under the Traditional Rulers and Autonomous communities Law of Imo State (supra) before instituting the action. Rather his complaint is on the method or mode (procedure) of instituting the action. Furthermore, it is not the contention of the Appellant that the trial High court had no jurisdiction to try the substantive dispute or subject matter. His grouse is only as to the mode or method of initiating same. It is the law that a party who submits to the jurisdiction of the court, and which jurisdiction was irregularly or procedurally defective but fails to raise objection thereto timeously, he cannot be heard on appeal to complain about that defect. See SONUGA & ORS. v. CHIEF K. ANADEIN & ORS. (1967) N.M.L.R. Pg.77 and C.F.A.O. v. ONITSHA INDUSTRIES LTD. (1932) 11 NLR Pg. 102. In that circumstance, he would be deemed to have waived the defect in the procedural jurisdiction of the court. In the instant case, the Appellant who was represented by counsel throughout the trial at the lower court did not raise or even attempt to raise any objection to the jurisdiction of the court. Having said that the objection raised by the Appellant is not on the substantive jurisdiction of the court, this issue has no merit. See ONYEMAIZU v. OJIAKO (2000) 6 NWLR (Pt.659) Pg. 25; ETIM v. OBOT (2010) 12 NWLR (Pt.1207) Pg.108 and UMARU v. ALIYU (No.1) (2010) 3 NWLR (Pt.1180) Pg.135. This issue is therefore resolved in favour of the Respondents.
The crucial issue to be determined now, is as between the Appellant and the 5th Respondent, who on the preponderance of evidence established that he was the person validly identified, selected, appointed and installed as the Eze of Obibiezena Autonomous Community.
On this issue, learned counsel for the Appellant contended that at the trial, the 5th Respondent pleaded and proved facts to show that his identification, selection and appointment as the Traditional Ruler of the Obibiezena Autonomous community was done by his village of Emeke and not the Community as pleaded at paragraph 11 of the 3rd Further Amended Statement of claim. That the purported identification, selection, appointment and installation of the 5th Respondent falls short of the requirement of the Law. For this argument he relied on Section, 5(1) of the Traditional Rulers and Autonomous communities Law No. 11 of 1981, Laws of Imo State. He submitted that by the provision of section 11 of the Law No. 11 of Imo state cited above, the exercise is to be performed by the whole community and not a component part of the community. He also submitted that the installation of the 5th Respondent was not done by the whole community as the evidence led by the 5th Respondent shows that the installation was done by a body known as the Standing council on Ezeship in Obibiezena. He referred to paragraph 53 of the 3rd Amended Statement of Claim and the testimony of the 5th Respondent at page 160 lines 30-34 of the record for this contention, and further submitted that, this fact was confirmed by the PW2 who is chairman of the said Standing Council on Ezeship.
Learned Appellant’s counsel went on to submit that the procedure for the identification, selection, appointment and installation of the 5th Respondent falls short of the Law and the requirements of the two Chieftaincy Constitutions tendered by the parties at the trial. These are Exhibits “F” and “Y” respectively.
That though there was dispute as to which of Exhibits “F” or “Y” was the valid and subsisting chieftaincy constitution for the community, none of them supported the procedure adopted in the alleged installation of the 5th Respondent. That by sections 10 and 5(B) of Exhibit “F” the standing Council has only the power to arrange for the installation of the Ezeship-Elect which is a different thing from the doing of the installation. That on the other hand by paragraphs 3, 6 and 7 of Exh. “Y”, the Standing Council has no power to do the installation of the Eze-Elect. He then submitted that, any purported installation by the Standing Committee on Ezeship ought to have been declared by the trial court as void.
It is the further submission of learned Appellant’s counsel that the 5th Respondent failed to prove that his identification, selection and appointment was made in accordance with Ezeship Constitution (Exh.”F”). That by section 8(1) of the said Exh. “F”, the Standing Council on Ezeship shall send an observer team on the day of the selection to witness the exercise, but the 5th Respondent admitted as pg. 234 lines 8-10 of the records that no such observer team was present on the day of the purported selection in 1986. That the 5th Respondent failed to prove that the Standing Council Central Executive Committee issued a notice of his presentation to the Joint Assembly of the Oha Obibiezena and citizens for recognition within 30 days as provided by section 9(i) of Exhibit “F”. Learned counsel then submitted that the only deduction to be made from the above scenario is that there was no identification, selection, and appointment of the 5th Respondent as the Eze of Obibiezena Autonomous Community. It was then submitted that the finding of the learned trial judge that, there was abundant evidence that the 6th Respondent was identified, selected, appointed, installed and presented as the Eze of the Community is perverse.
Learned counsel for the Appellant also submitted that issues were joined at the trial as to which of the Constitution between Exhibit “F” and Exhibit “Y” was the valid and subsisting Ezeship Constitution of Obibiezena Autonomous Community. That while the 5th Respondent maintained that it was Exhibit “F”, the Appellant maintained that it was Exhibit “Y”. That it was agreed by the parties that the last Eze was presented under the Exhibit “Y” but the 5th Respondent maintains that Exhibit “Y” was amended in 1986 by Exhibit “F”, while the Appellant insisted that Exhibit “Y” was never amended by Exhibit “F” or any other instrument. He then contended that despite those facts as placed before the court, the learned trial Chief Judge did not make any finding on the issue. He further contended that the resolution of that issue was essential to the resolution of the core issue before the court, which was as between the Appellant and the 5th Respondent, who was the person validly identified, selected, appointed and installed the Eze of the Community. That the failure of the trial court to make findings on that issue occasioned a miscarriage of justice. The case of OGUNWALE v. SYRIAN ARAB REPUBLIC (2002) 9 NWLR (Pt. 771) Pg. 127 at 150 was cited in support.
It was further submitted that the 5th Respondent did not prove that Exh.”Y” was amended by Exh.”F”, as he did not show that the provision of section 15 of the Traditional Rulers and Autonomous Communities Law (supra) were followed. That there was no evidence that the Governor was satisfied that there was good reason for the amendment or that the purported amendment was made by the community or its authorized agents or representatives. That at the time the said Exh.”F” was purported to have been amended, the members of the Central Executive who signed same were in court challenging the dissolution of their Committee via vote of no confidence in April, 1985. It was submitted that the only deduction to be made is that, as at 01/10/85 when Exh.”F” was said to have been amended, the persons that made it had no competence to do so. That the legally authorized Central Executive Committee at that time was the Caretaker Committee.
It was also submitted that, though the 5th Respondent tried to show that the Constitution of Obibiezena Development Union did not provide for a Caretaker Committee, but there was abundant evidence on the record showing that there was a convention of the Union which supported the appointment of a Caretaker Committee that when the situation demands. He cited the testimony of the PW2 at page 324 lines 29-30 and that of DW8 at page 426 lines 24-26. That in any case exhibits “YY”, “ZZ” and “AAA” at pages 648-651 of the record show that it was Caretaker Committees conducted the election from which PW2 emerged winner. It was then submitted that, it has been shown that the amendment to Exh. “Y” was not done by persons who had the legal competence to do so.
Flowing from the above submissions, it was argued that Exh. “F” was invalid, and therefore the subsisting Ezeship Constitution for the Community at all times material to this suit was Exh. “Y”, and that by section 5(ix) of Exh. “Y”, for a person to be qualified to be an Eze, he must take the Nze title. That the 5th Respondent did not take the Nze title. He further submitted that the Appellant led clear and credible evidence that Exh. “Y” was the valid and subsisting constitution on the Ezeship of the community, and that he was validly identified, selected, appointed, installed and presented as an Eze of the community in accordance with the provisions of Exh. “Y” and the Law.
Learned counsel for the Appellant further submitted that, the DW.2 testified that he was the custodian of all official correspondences of Owerri Local Government and proceeded to tender Exh. “GG” which was a letter forwarding the documents of the Appellant to the Permanent Secretary, Ministry for Local Government, Imo state. That the finding of the learned trial Chief Judge that there is no validity in the claim of the Appellant that he was presented to the chairman is perverse as the fact is supported by Exhs. “HH”‘ “JJ” and “KK” respectively. That in any case, the 5th Respondent admitted that the Appellant was presented, and therefore, the Appellant need not prove same. It was then contended that the 5rh Respondent having admitted that the Appellant was presented to the chairman of Owerri Local Government, he had the onus to prove that the said presentation was not done according to the provisions of the Law, as there is a presumption of regularity in favour of that presentation. The case of MAGNUSON v. KOIKI (1994) 4 NWLR (Pt.119); BENSON v. ONITIRI (1960) 5 FSC Pg.69 and OGBUANYINYA v. OKUDO (No. 2)(1990) 4 NWLR (Pt. 146) Pg 551 were cited in support.
Finally, learned counsel for the Appellant went on to submit that, the custom of installation at “Iwu ahia” was not pleaded by either of the parties at the trial of this suit, and therefore any evidence led on the said custom should go to no issue. On the contention that Exhibit “GG” dated 18/1/88 was made when Mr. Ekwueme was no more in the office, it was the submission of learned Appellant’s counsel that, Exh. “GG” was not made by Mr. Ekwueme but by one Mr. P. E. Anyanwu who was then secretary of Owerri Local Government. That the trial court overlooked the admissions of the P.W.3 in cross-examination, before coming to the conclusion that, Exh. “GG” could not have been made by Mr. Ekwueme. He then urged us to hold that the 5th Respondent failed to show that he was the person who was validly identified, selected, appointed and installed, and presented as the Traditional Ruler of Obibiezena Autonomous Community in accordance with the law and the chieftaincy constitution of the community.
The arguments of learned counsel for the 2nd and 3rd Respondents on this issue are contained at Paragraphs 3.18 – 3.31 of their unpagenated Brief of Argument. Therein, learned Counsel briefly reviewed the testimonies of the 5th Respondent who testified as the P.W.1, and that of P.W.2, P.W.3 and D.W.1 on the issue to submit that, the 5th Respondent amply proved by oral and documentary evidence that he was the person who was duly identified, selected, appointed, installed and presented for recognition as the Eze of Obibiezena Autonomous Community. That those pieces of evidence amply support the findings of the trial court thereon. It is therefore submitted by learned counsel that, it is a huge joke to contend that the 5th Respondent did not prove that he was identified, appointed, selected and presented by his community in view of the overwhelming evidence before the court. That since in civil cases the burden of proof is discharged on the balance of probabilities, the 5th Respondent has discharged that burden. He also submitted that, the identification, selection, appointment and installation of the 5th Respondent was valid in that it satisfied the requirement of Section 50 of the Traditional Rulers and Autonomous Communities Law No. 11 of Imo State, 1981 , Articles 5(B), 8 and 9 of Exhibit “F” and Articles 3 and 4 of Exhibit “Y”.
Learned counsel further submitted that, Section 5(1) of the Traditional Rulers and Autonomous communities, Law (supra) is only a general requirement and does not obviate or deprive an Autonomous Community to have its own internal arrangement on how it can chose its ruler. That the Plaintiff/5th Respondent and the Defendants, including the Appellant admitted that it was the turn of Emeke village to produce the Eze of the Community, and that what section 5 of the Traditional Rulers and Autonomous Communities Law (supra) has done is to give each Autonomous community the right to identify, select, appoint and install its traditional ruler. That the community may do that either in accordance with existing custom or in accordance with the provision of that Law. That in, the instant case, what was done was in accordance with the 1981 Law (supra). He then submitted that the Appellant never went through the Standing Council on Ezeship, nor did that body have a hand in his purported selection, as required by Section 2 of Exhibits “F” and “Y”.
Learned counsel for the 2nd and 3rd Respondents then submitted that, it was the finding of the trial court after evaluating the evidence and exhibits tendered by the parties that, that the 5th Respondent was the person lawfully identified, selected, appointed and installed the Traditional Ruler of the Community. That this court can only disturb those findings of the learned trial Chief Judge, if it is satisfied that it led to a miscarriage of justice. He also cited the case of AWARA v. ALALIBO (2002) 18 NWLR (Pt. 799) Pg. 484 at 552; LAYINKA v. MAKINDE (2002) 10 NWLR (Pt. 775) Pg. 358; AROWOLO v. IFABIYI (2002) 4 NWLR (Pt. 757) Pg. 356; JOHNSON TRIANGLES LTD. v. C.M. & LTD. (2002) NWLR (Pt. 789) Pg. 176 and EGESIMBA v. ONUZURIKE (2002) 15 NWLR (Pt.791) Pg. 524, to urge us not to interfere with the findings of facts made by the trial court, and to dismiss the appeal.
In a similar vein, learned counsel for the 5th Respondent, after considering the testimony of the witnesses, and the documents tendered, also submitted that, the 5th Respondent proved his case not only on balance of probability but also beyond reasonable doubt. He also submitted that, it is the law that, he who does an act through an agent does it himself, as the law is qui facit per alium, facit per se. He then cited the case of LEVENTIS TECHNICAL LTD. v. PETROGESSICA ENT. LTD. (1992) 2 NWLR (Pt. 224) Pg. 459, to further submit that, the people of Obibiezena having vested their powers to select an Eze on the Standing Council on Ezeship, whatever the Standing council did, was the act of the community, and where the community had made a Constitution for the selection of an Eze which the Government of Imo State had accepted, any person who is selected in accordance with the provisions of that Constitution cannot be said not to have been chosen by the community. That it amounts to double standard for the Appellant to contend that the selection of the 6th Respondent by Emeke village is invalid, while contending also that it was same Emeke village that selected him. He also cited the testimony of the witnesses and the documents tendered to submit that, on the strength of the evidence before the court, the 5th Respondent proved that he was validly identified, selected, appointed, installed and presented for recognition as the Eze of Obibiena Autonomous Community.
Learned counsel for the 5th Respondent further submitted that, the feeble attempt by the appellant to discredit Exhibit “F” and rely on Exhibit “Y” failed to avail him as he did not show by any iota of evidence that Exhibit “F” was not validly made amending Exhibit “Y”, as throughout his case, he kept talking about Exhibits “F” and “U1”, and also annexed Exhibits “F” and “U1” in his Exhibits “K” and “K1”. That the Government of Imo State and Ngor Okpala L.G.A. also relied on the said Exhibit “Y” and “U1” in ordering for a plebiscite as per Exhibits “D, D1 and E,” which provoked this action. That, the Appellant further admitted under cross-examination that the Constitution of the community did not make provision for a Caretaker committee, which he claimed took care of his selection, and further told the court that though the Executive of the 2nd and 3rd Respondents was dissolved, they sat tight, which D.W.8 explained to mean that the said Executive refused to hand over and stayed in office, and went to court. It was therefore submitted that, it is very clear that at the time the Appellant claimed a caretaker committee had replaced C.A.C. Enyiegbulam’s regime, and organized his selection and presentation, the said Enyiegbulam’s Executive was still in office and carrying out its functions. The cases of ADENLE v. OLUDE (2002) 18 NWLR (Pt.799) Pg.413 at 435 – 436 Paras H-B and ONWUAMA v. EZEOKOLI (2002) 5 NWLR (Pt. 760) Pg. 353 at 367-368 Paras C-C, were then cited to submit that the lower court was therefore right in holding that the 5th Respondent proved his case. We were accordingly urged to resolve this issue in favour of the Respondents and dismiss the appeal.
Now, it is the law that the duty of evaluation of evidence and ascription of probative value to such evidence are the primary function of a trial court who saw, heard and therefore in a better position to assess the witnesses. See UNION BANK OF NIG. PLC V. ISHOLA (2001) 15 NWLR (Pt.375) Pg.47; YONGBISH v. BULUS (1997) 2 NWLR (Pt. 489) Pg.621 and ODOFIN v. MOGAJI (1978) 11 N.S.C.C Pg. 275. In the evaluation of such evidence, especially where the parties have both called evidence, either oral or documentary, a trial court is enjoined to put the evidence on an imaginary scale, by putting the evidence led by the plaintiff on one side of the scale and proceed to put the evidence adduced by the defendant on the other side of the scale, and weigh them together so as to see which side of the imaginary scale tilts or preponderates. In doing that, the trial court has the duty to consider the totality of all relevant evidence adduced before it. See MOGAJI v. ODOFIN & ORS (1978) 4 S.C Pg. 91; WOLUCHEM & ORS. v. GUDI & ORS. (1981) 5 S.C. Pg. 291 at 294 – 295; NNEJI v. CHUKWU (1996) 10 NWLR (Pt.478) Pg. 265 and IGBODIM v. OBIANKE (1976) 10 N.S.C.C. Pg. 467 AT 474. The burden is on the appellant who challenged the evaluation of the evidence to show how the trial court derailed or failed in the discharge of his sacred duty. In other words, the burden rests on an appellant who complains of improper evaluation of evidence to identify or specify the evidence improperly evaluated or not evaluated at all, and proceed to demonstrate to the appellate court how, if the error is corrected, the judgment appealed against cannot stand. See DAKUR v. DAPAL (199S) 10 W.N.L.R (Pt. 571) Pg. 573 at 589; AWOYOOLA v. ARO (2001) 21 W.R.N Pg. 41.

It is therefore settled that, where the trial court has satisfactorily discharged its duty of evaluation of the evidence adduced before him, an appellate court will not interfere. An appellate court is entitled to interfere where the trial court failed to satisfactorily perform its primary function of evaluating and ascribing probative value to the evidence led. Thus, where the appellate court finds from the record that the trial court failed to avail itself of the opportunity he had of seeing and hearing the witnesses that testified before him, and which finding led to perverse decision or miscarriage of justice, it will interfere. See ALI v. SALIHU 1 NWLR (Pt.1228) Pg. 227; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt.1213) Pg.50; OCHIRI v. N.A.O.C. LTD. (2010) 14 NWLR (Pt.1213) Pg. 208 and OKONKWO v. OKONKWO (2010) 14 NWLR (Pt.1213) Pg. 228.
In the instant case, the Appellant complains first of all that, there was a dispute as to which of the documents between Exh. “F” and “Y” is the instrument that governed the identification, selection, appointment and installation processes of the Eze of the Obibiezena Autonomous Community. Exhibit “F” is at page 1 of the Supplementary Record of Appeal, and it is titled; INSTRUMENT FOR THE ESTABLISHMENT OF EZESHIP IN OBIBIEZENA AUTONOMOUS COMMUNITY, Revised, 1985, Exhibit “Y” on the other hand is titled, THE CONSTITUTION FOR THE ESTABLISHMENT OF CHIEFTAINCY INSTITUTION IN OBIBIEZENA (see page 8- 11 of the Supplementary Record). From the totality of the evidence adduced at the trial as is evident on the record, it is not in dispute that Exhibit “Y” was made in 1976. It is also not in dispute that the said Exhibit “Y” was used when the first Eze of the community was selected, appointed and installed. It is however the contention of the 5th Respondent that the said Exhibit “Y” was amended sometime in 1985 and Exh. “F” therefore governed the process of his identification, selection, appointment, installation and presentation as the Eze of the community. After a very careful perusal of those two documents, a major difference which I find between the two documents is as to the qualification of persons to be appointed Eze of the community. Though there are other differences, this appears to be what is in contention between the Appellant and the 5th Respondent. “Thus, while Exh. “Y” provides in Section 5 (ix) that a Chief elect must be the holder of the Nze title, Exh. “F” does not contain such provision. This provision is crucial to the case of the 5th Respondent in that, if it is found that Exh. “Y” was the subsisting or existing law for the selection of the Eze of the community at the time he claimed he was identified, selected, appointed and installed, his case may collapse, as it would mean that he was not qualified to be selected, appointed and installed the Eze of Obibiezena Autonomous Community. That is why learned counsel for the Appellant argued strenuously that, the learned trial judge failed to make a finding on that issue.
It is trite law that, a trial court is bound to pronounce on all issues placed before him for determination by the parties. I have carefully read the judgment of the learned trial judge as is contained in page 484-517 of the record of appeal. It is clear from that judgment that the learned trial Chief Judge did not make any finding as to which of Exhibit “Y” tendered by the Appellant and Exh. “F” tendered by the 5th Respondent was the valid and existing document governing othe identification, selection, appointment, installation of the Eze of the community. As stated earlier, both parties are agreed that, Exh. “Y” governed the appointment of first Eze of the community in 1976. While the 5th Respondent contends that Exh. “Y” was amended by Exh. “F”, the Appellant maintains that Exh. “Y” was never amended. The 5th Respondent had stated in his testimony before the trial court that, his selection and installation was done under the instrument titled “Instrument for the Establishment of Ezeship in Obibiezena Autonomous Community Revised, 1985.” That document was admitted during cross-examination by learned counsel for the 2nd and 3rd Respondents as Exh. “F”, without objection. He also tendered Exhibits K1 and L which is the said 1985 Revised constitution on Ezeship annexed to the affidavits off the Appellant and Ngor Okpala Local Government Area to show that the Appellant, 1st and 4th Respondents were aware of that amendment. He insisted under cross-examination by counsel for the Appellant that his selection was governed by Exh. “F” which contains the customs and tradition of his people on the selection of the Eze. The 5th Respondent denied that, the central Executive Committee of Obibiezena Development union led by C.A.C. Onyiegbulam was dissolved in 1985. The P.W.2 also stated that, there was nothing like a Caretaker Committee of the Obibiezena Development Union (O.D.U) in 1986, or at any time he was in office since the constitution does not allow for such. He also corroborated the testimony of the 5th Respondent (P.W.1) that, Exh. “Y” was revised in 1985 to give room to Exh. “F”. He also denied that the Central Executive Committee of O.D.U, which he led was dissolved on the 7/4/85 on a vote of no confidence motion. That he held office as president of the Central Executive Committee of the O.D.U till his term expired in 1989 in accordance with the constitution of the O.D.U. He admitted that one O.E. Uguruanyi paraded himself as the leader of O.D.U 11, on the prompting of the Nze cult of which the Appellant is a member but in reality there was no split in the leadership of the O.D.U. He also denied under cross-examination by learned counsel for the 2nd & 3rd Respondents that the Central Executive of O.D.U. was at anytime styled “Caretaker Committee”. That he was the President-General of the Obibiezena Development union from 1983 – 1989 and was never dissolved, as he had challenged his purported dissolution in court. The P.W.2 remained resolute on this point during cross-examination by learned counsel for the Appellant. It is also instructive to note that, the P.W.2 stated that, Exhibit “F” had been lodged with the government at the time of the selection and installation of the 5th Respondent in 1986. This piece of evidence was never challenged by the Appellant.
Learned counsel for the Appellant sought to show that it was a convention of the Obibiezena Autonomous Community that a Caretaker Committee can be appointed to handle the Obibiezena Development Union in a deserving situation. He referred to the testimony of P.W. 2 at Pg. 324 lines 29 – 30, wherein he stated that it was the Caretaker Committee appointed by Eze Nnadi that handed over to him in 1983. Learned counsel however avoided the denial of the said P.W.2 at the same page 324 at lines 28-30 and 31-32, wherein he stated that his election was conducted by one Mr. G. U. Ibekwe and not any caretaker Committee. The P.W. 2 did not therefore contend that there was a convention on the appointment of a Caretaker Committee of the O.D.U. In any case, though Exh. “ZZ” may be evidence of the existence of a Caretaker Committee, the contents of that document reveal that the Caretaker Committee is setup only to conduct elections into the offices of the central Executive Committee of the O.D.U. The evidence also shows that when the Central Executive was purportedly dissolved, the P.W.2 and other officers of the Central Executive remained in office and proceeded to challenge their dissolution in court. The evidence does not show that they could not function as such. See the testimony of D.W.2 and D.W.3. In the circumstances, I hereby find that, though the Central Executive committee of the Obibiezena Development Union (O.D.U.) was purportedly dissolved in 1985, the Central Executive Committee continued, to perform the function of their office. The testimony of the 5th Respondent and the P.W.2 that Exhibit “Y” tendered by the Appellant was amended by Exh. “F” has not been controverted. The Appellant and the 1st and 4th Respondents were aware of such amendment and even relied on same in their affidavits filed and tendered in evidence as Exhibit “K”, K1 and L1. Therein Exhibit “F” was annexed and relied on by the Appellant and Ngor Okpala Local Government. They cannot now deny the existence of Exhibit “F” which amended Exhibit “Y”. In the circumstance, I hereby find and do hold that Exh. “F” governed the appointment of the Eze for Obibiezena Autonomous Community at the material time in issue.
Learned Appellant’s counsel also sought to show that there is no evidence that the Governor of Imo State was satisfied that there was good reason or course for the amendment of Exh “Y” by Exh. “F”. As I found out earlier, the D.W.2 stated that at the time of the selection and appointment of the 5th Respondent, Exhibit “F” was already lodged with government. See Pg. 242 lines 6-8 of the records. Furthermore, it is clear from Paragraph 2 of Exh. D1 that the Government of Imo State relied on Exhibit “F” in ordering for a plebiscite. On the basis of those pieces of evidence there is a presumption that Exh. “F” satisfied the requirement of Section 15 of the Traditional Rulers and Autonomous Communities Law of Imo State (supra). The Appellant had the burden to rebut that presumption but he failed to do so.
It is also contended by the Appellant that, the installation of the 5th Respondent was not done by the Obibiezena Autonomous Community but by the Standing Council on Ezeship. That this act falls short of the requirements of the Law and that of Exhibits “F” and “Y”. He referred to the functions of the Standing Committee at Section 10 and 5(B) of Exh. “F”. Now, Section 5(1) of the Traditional Rulers and Autonomous Communities Law (supra) provides that each community shall identify, select, appoint and install an Eze and present him to the Chief Executive of the Local Government which has power or jurisdiction over the said community. Sub-section 2 of the said Section 5 states that each Autonomous Community shall document the method, manner or tradition by which the Eze may be identified, selected, appointed and installed, and the community shall submit the document to the Chief Executive of the Local Government, who shall forward same with some comments to the Government for the purpose of recognition. Section 5(5) of the said Law then stipulates that the Governor shall not recognize any person as the Eze of an Autonomous Community, unless he is satisfied that such a person was identified, selected, appointed and installed in accordance with the customary law of the Autonomous Community.
A combined reading of those provisions show clearly that, each Autonomous community is empowered to set out or document the method, manner or tradition of the community for the identification, selection, appointment and installation of their Eze. Such document shall guide the Governor in the exercise of his decision whether or not to recognize a person presented to him for recognition as an Eze. The 5th Respondent gave clear and lucid evidence showing that he was identified, selected, appointed, installed and presented for recognition as the Eze of Obibiezena Autonomous Community according to the custom and tradition of the community documented in Exhibit “F”. The functions or role of the Standing council on Ezeship are clearly spelt out in paragraph 5(B)(i)-(v) of Exh. “F”. Those functions include the screening of a selected candidate in order to confirm his character and personality so as to ensure that he satisfies the criteria set out by the counsel and that contained in Imo State Traditional Rulers and Autonomous communities Law (supra). They are also to send a team of observers from among them on the date set out by the village whose turn it is to present a candidate. The law does not set out the consequence of failure of the standing council to send an observer team on the date of such selection. Since one of the functions of the council is to intervene where there is a stalemate in the selection and presentation of a single candidate, it is safe to conclude that failure to send an observer team by the Standing Council may not be fatal, where there is no stalemate. In the instant case, the evidence led by the 5th Respondent is that he was the only person considered for appointment as the Eze in 1986. Furthermore, by sections 9 and 10 of the said Exh. “F”, it is the standing council on Ezeship who has the responsibility to present, the person selected to the Joint Assembly of the Oha Obibiezena and the entire citizens of the community for recognition. The Standing Council shall also escort him to the installation area which is at Orie Obibiezena Market Square by the members of the Standing council on Ezeship. It therefore means that the Standing Council is responsible for the installation of the Eze.
Now, the 5th Respondent as the PW.1 gave evidence to the effect that, when the last Eze of Obibiezena, Eze J. A. Nnodi died in 1984, it was the turn of Emeke Obibi village to produce the next Eze, and the 2nd Respondent duly wrote Emeke village that it was their turn to produce the Eze. That the Emeke village of which he belongs duly identified and selected him as the Eze-Elect for Obibiezena Autonomous Community. That he was the sole candidate so identified and selected by the village. He also stated that he was thereafter called upon by the Standing Council on Ezeship to be installed and was duly installed on the 04/6/86 at Orie Obibi Market Square after the necessary traditional ceremonies were performed. That after the installation, the community transferred to him the throne, staff of office, coral beads, horse tail and other paraphernalia of the office used by the former Eze, and that those items are still in his possession. That the community thereafter presented him to the Chairman of Owerri Local Government, under whose jurisdiction Obibiezena was at that time for recognition. He also stated that at the time Ngor Okpala Local Government was created out of Owerri Local Government there was a lingering dispute between the Obibiezena Development Union and the Nze cult on the issue of Ezeship of Obibiezena, and as a result, the Chairman of the Local Government waded into the issue and recommended that the two sides present a person to him for recognition. That as result, the Emeke village selected five persons from each of the three kindreds that make up the village, who voted to select the Eze-Elect between the Appellant and the 5th Respondent and the 5th Respondent won by a majority of 10 votes to the Appellant’s 5 votes. He contended that by the custom of Obibiezena, a person cannot be installed Eze twice, so the process of installation was not repeated, but the Standing council on Ezeship, the Obibiezena Development Union and the entire people of Obibiezena again presented him to the chairman of Ngor Okpala Local Government Area for recognition by government. He tendered Exhibits A, B, C, U1, U2, U3, U4, U5 and U6 as evidence of his identification, selection, appointment and installation as the Eze of Obibiezena. This piece of evidence was corroborated in ail material respects or particulars by the PW.2.
The Appellant on the other hand red evidence to show that it is he, who was validly identified, selected, appointed and installed as the Eze of Obibiezena Autonomous Community. He testified that the central Executive Committee of the Obibiezena Development union was dissolved on 4/4/85 and a Caretaker Committee put in place. That the said caretaker committee wrote to the Emeke village of which he belongs, to produce the next Eze and that on receipt of the letter, the Emeke village assembled and mandated the Oha Emeke to identify and select a candidate for presentation to the Standing council on Ezeship. He went on to state that the Oha na Okoro of Emeke village met and voted in a secret ballot between him and the 5th Respondent. That he scored 13 of the votes to defeat the 5th Respondent who got 8 votes, and was therefore presented to the Standing Council on Ezeship and the Joint Assembly of Oha Obibiezena and the Obibiezena Community on the 03/5/86. That the Joint Assembly accepted and ratified his selection, and passed a resolution to that effect, whereof he was duly installed and capped in accordance with Ext “Y” and issued a certificate of capping. He tendered the programme of his installation in evidence as Exh. “JJ”, but did not tender the resolution ratifying his selection and the certificate of capping in evidence. He then stated that after his selection and installation, he was presented to the Sole Administrator of Owerri Local Government Area, Chief F. I. Ekwueme on 31/12/87, which is about one year and seven months, after his installation, for recognition. He denied that he was aware of the exercise conducted on 26/12/90 or his participation therein. He however stated that after the exercise of 26/12/90, the Emeke village forwarded a letter of protest to the Chairman of Ngor Okpala Local Government.
The learned trial Chief Judge disbelieved the evidence led by the Appellant and believed the 5th Respondent on the issue as to who between them was duly identified, selected, appointed and installed the Eze-Elect of Obibiezena Autonomous Community. Indeed that finding of the trial court cannot be faulted. I had earlier found that Exh. “F” is the Instrument that governed the process of identification, selection, appointment of the Eze of the Community. The testimony of the 5th Respondent is in accord with the requirements of Exh. “F”. For instance, he was presented and installed as the Eze at Orie Obibiezena Market Square and all the paraphernalia of office used by the former Eze were presented to him. The Appellant only stated that he was capped and a certificate of capping presented to him. He did not however tender such certificate in evidence.
On the issue of presentation, the learned trial chief Judge found as follows:
“Thus, considering the entire evidence before me on the issue of presentation and considering the evidence of PW3 and DW1 it becomes clear that between 1986 and 1990, it was only the Plaintiff that was presented to the chairman of the Local Government. Therefore, there is no validity in the claim of the 6th Defendant that he was ever presented to any Chairman or that he was presented to Mr. Ekwueme, the Sole Administrator of the Local Government.
As regards the presentation to the Chairman of Ngor Okpala Local Government, there is abundant evidence that the Plaintiff was identified, selected, and presented to the Chairman in 1990 in accordance with the provision of Traditional Rulers and Autonomous Communities Law No. 11 of 1981.
The 6th Defendant was again not presented to the Chairman of Ngor Okpala Local Government in 1990.
Therefore, the issue of presentation is resolved in favour of the plaintiff who was duly presented in accordance with the law. But the 6th Defendant was never presented as required by Law No.1 of 1981.” The Appellant has not been able to show how this finding of the learned Chief Judge is perverse or has occasioned a miscarriage of justice. It would be seen from the above cited portion of the judgment of the trial court that apart from the testimony of the 5th Respondent and that of PW2, the learned trial chief Judge placed premium on the testimonies of the PW3 and DW1 who are official witnesses in arriving at his decision. Indeed, Mr. R. C. Azuaralam who was chairman of Owerri Local Government from 04/01/88 testified that it was the 5th Respondent who was presented to him for recognition together with some documents relating thereto on the 17/3/89. He also stated that Mr. Ekwueme whom the Appellant alleged he was presented to on the 18/01/88, was no longer in office as at that date, so he could not have written a letter as Sole Administrator of Owerri Local Government Area submitting the name of the Appellant to government for recognition. The said PW3 therefore stated that as at 18/8/88 when the Appellant was said to have been presented, he had resumed office as substantive Chairman of the Local Government and that, the Appellant was never presented to him for recognition as the Eze-Elect of Obibiezena Autonomous Community. The DW.1 was Principal Personal Officer in the Office of Secretary to the Government of Imo State, whose duty included processing of documents relating to presentation and selection of Eze-Elect. He testified that the 5th Respondent was presented as Eze-Elect for recognition by Owerri Local Government in 1989. The documents of presentation are in evidence as Exhs. U1, U2, U3, U4, U5 and U6. He also stated that when Ngor Okpala Local Government Area was created, the Chairman of the Local Government forwarded another application to government seeking the recognition of the 5th Respondent, and it is in evidence as Exhs’ “V” and “V6”. He stated under cross-examination that he did not know of any presentation before 1989, apart from that in Exhs. “V” and “V6” and that no other presentation was made after the Chairman of Ngor Okpala had forwarded the papers of the 5th Respondent for recognition.
Thought the DW.2 who said he as Head of Personnel Management of Ngor Okpala Local Government Area, testified that from the records of the Local Government, the Appellant was presented to the Owerri Local Government in 1987, the 5th Respondent was also presented in 1989. That when Ngor Okpala Local Government was created, the 5th Respondent was again presented in 1990, but the Appellant was never presented again.
Those facts support the crucial findings made by the trial court. I am therefore of the view and do hold that the learned trial Judge was right when he found and accordingly held that the 5th Respondent was able to prove on the standard required by law that, he was validly identified, selected, appointed, installed and presented for recognition as the Eze of Obibiezena Autonomous Community in Ngor Okpala Local Government Area of Imo State. The evidence adduced weighs or preponderates in favour of the Respondents. In other words it weighs against the Appellant. This issue is therefore resolved against the Appellant.
On the whole therefore, this appeal lacks merit. It is accordingly dismissed. The judgment of the trial court in Suit No: HOW/335/93 is hereby affirmed.
I award the sum of Fifty thousand Naira (N50,000.00) as costs against the Appellant in favour of the 2nd, 3rd and 5th Respondents.

UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have read before now the lead Judgment of my learned brother H.M. Tsammani, JCA just delivered.
My learned brother has exhaustively considered and resolved all the issues therein in the appeal. I completely agree with the reasoning and conclusions arrived at that this appeal is devoid of any merit. The appeal is also dismissed by me.
I also affirm the judgment of the trial Court in Suit No. HOW/335/93 and endorse the consequential order as to costs.

MOJEED A. OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother TSAMMANI, JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.
The learned trial Judge in this case correctly evaluated the evidence of the parties. The evidence clearly preponderates in favour of the Respondents. I also dismiss the appeal.

Appearances

N.A. Nnawuchi Esq.,
J.A. Okereke; Esq. and
O.C. Okere Esq.For Appellant

AND

L.M. Alozie Esq.
F.O. Ofoma; Esq
C.S. Obidegun; Esq. for the 2nd and 3rd Respondent

B.U. Obieze; Esq. (Principal State Counsel; Ministry of Justice, Imo State for the 1st and 4th Respondents

C.A. Ogidi; Esq. for the 5th RespondentFor Respondent