PRINCE ELIJAH OLADELE AYENI v. PRINCE KOLADE OLADIPUPO & ORS (2019)

PRINCE ELIJAH OLADELE AYENI v. PRINCE KOLADE OLADIPUPO & ORS

(2019)LCN/13474(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/EK/79/2016(R)

RATIO

APPEAL: WHEN THE COURT OF APPEAL WILL ALLOW FRESH ISSUES TO BE ARGUED ON APPEAL

The firm position of the law as stated by the apex Court in the case of OWNERS OF M/V GONGOLA HOPE & ANOR v. SMURFIT CASES NIG LTD & ANOR 2007 LPELR-2849 SC is as follows:
Invariably the Court will only allow a fresh issue to be argued on appeal where the issue is relevant and no further evidence is necessary.”PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

PRINCE ELIJAH OLADELE AYENI
(FOR HIMSELF AND ON BEHALF OF THE EJISUN BRANCH OF THE ONIDASA RULING HOUSE OF THE OLUPOTI CHIEFTAINCY, IPOTI EKITI)

IN RE: APPLICATION FOR SUBSTITUTION
1. PRINCE AYODELE OLADITI AYENI
2. PRINCE JAMES BABATOPE FELELARAN
3. PRINCE BABATUNDE ADEYEMI ADELEKE
(FOR THEMSELVES AND ON BEHALF OF THE EJISUN BRANCH OF THE ONIDASA RULING HOUSE OF THE OLUPOTI CHIEFTAINCY, IPOTI EKITI) Appellant(s)

AND

1. PRINCE KOLADE OLADIPUPO
2. GOVERNOR, EKITI STATE
3. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, EKITI STATE
4. SECRETARY, IJERO LOCAL GOVERNMENT COUNCIL
5. HIGH CHIEF E. A. OLUMUTIMI
(FOR HIMSELF AND ON BEHALF OF THE KINGMAKERS, IPOTI
EKITI, IJERO LOCAL GOVERNMENT COUNCIL, EKITI STATE)
6. SPECIAL ADVISER (CHIEFTAINCY AFFAIRS) TO THE EKITI STATE GOVERNOR
7. CHIEF JOSEPH AJAYI APALOWO
(CHIEF ASALU OF IPOTI EKITI) Respondent(s)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Lead Ruling): This is an application on notice dated and filed November 2nd, 2018 by the Applicants, brought pursuant to Order 6 Rules 1 & 9 (1) & (2) and Order 15 Rule 2 of the 2016 Rules of this Court, Section 15, Court of Appeal Act as amended, Section 36 (1) of the 1999 Constitution of Nigeria as amended and the inherent jurisdiction of this Court. It seeks the following orders in the main:
1. An order of this Honourable Court substituting the name of Prince Elijah Oladele Ayeni (Deceased Appellant) with the names of Prince Ayodele Oladiti Ayeni, Prince James Babatope Felelaran and Prince Babatunde Adeyemi Adeleke as the Appellants for the purpose of continuing with the prosecution of the instant appeal.
2. An order of this Honourable Court granting leave to the Applicants to amend the Original Notice of Appeal (which is hereto attached as Exhibit 1) in the manner shown in the underlined portions of the Proposed Amended Notice of Appeal, which is attached to this application.
3. An order of this Honourable Court granting leave to the Applicants to file and

argue eight additional grounds of appeal, which are respectively labeled and numbered as Grounds 4, 5, 6, 7, 8, 9, 10 and 11 in the Proposed Amended Notice of Appeal, which is attached as Exhibit 2 to this application.
4. An order of this Honourable Court granting leave to the Applicants to file and argue the said eight additional grounds of appeal, which are respectively labeled and numbered as Grounds 4, 5, 6, 7, 8, 9, 10 and 11 in the Proposed Amended Notice of Appeal, which is attached as Exhibit 2 to this application, on grounds of mixed law and facts.
5. An order of this Honourable Court deeming the Amended Notice of Appeal as having been duly filed and served on the Respondents, same having been filed separately at the Registry of this Court.
6. An order of this Honourable Court granting leave to the Applicants to raise and argue fresh fundamental issues of law bordering on notification of appointment by the Secretary of the Chieftaincy Committee to the Executive Council with respect to Sections 8, 8A, 11 (1), (2) of the Chiefs Law Cap C5, Laws of Ekiti State, 2012 but which said fundamental issues of law were mistakenly not raised

before the lower Court by the Appellant?s Counsel while responding to the Respondents? Preliminary Objection.

Fifteen (15) grounds were filed in support of the application as contained on the Motion paper, with an Affidavit of Fifteen (15) paragraphs together with the Original Notice of Appeal as Exhibit 1 and the Proposed Amended Notice of Appeal as Exhibit 2. The 1st, 5th and 7th Respondents responded to this application with Counter-affidavit of ten (10) paragraphs, sworn to and filed on November 16th 2018, to which the Applicants filed Further Affidavit of Nineteen (19) paragraphs sworn to and filed on December 12th 2018.

?In view of the contentious nature of the Applicants? application, this Court on November 29th, 2018 ordered written addresses to be filed for adoption. The Applicants on December 12th 2018 filed a written address, dated December 11th 2018 and that of the 1st, 5th and 7th Respondents? in opposition, dated January 15th 2019, was filed on January 21st, 2019 and deemed as properly filed and served on January 22nd, 2019. A Reply on point of law thereto, dated January 25th 2019, was filed on February 6th 2019

and deemed on April 11th, 2019 as properly filed and served. It is necessary to note that, the 2nd, 3rd 4th and 6th Respondents did not file any process in opposition to this application, consequently not objecting to it.

The instant application emanated from the Ruling of the Court below on June 27th 2016 on the Preliminary Objection raised by the 1st, 5th and 7th Respondents to Suit No. HIJ/7/2013 filed by the Appellant. The objection was to the effect that, the Appellant had no locus standi and therefore, the Court lacked jurisdiction, it was upheld and the said Suit was struck out. Being dissatisfied, the Appellant appealed vide the Original Notice of Appeal on September 26th 2016 with Four (4) grounds of appeal which he seeks to amend herein amongst other prayers.

ARGUMENTS ON BEHALF OF THE APPLICANTS AND 1ST, 5TH AND 7TH RESPONDENTS
It is necessary and for economy of time and resources to state from the on-set that, the 1st, 5th and 7th Respondents did not object to prayer 1; for the substitution of the name of late Prince Elijah Oladele Ayeni with the names of Prince James Babatope Felelaran and Prince Babatunde Adeyemi Adeleke as the

Appellants. Consequently, I shall not consider the submissions made by the Applicants in Paragraphs 4.02 (i) to (xi) on prayer 1.

SOLE ISSUE FOR DETERMINATION
Whether the Applicants are entitled to be granted the reliefs being sought

Mr. L. O. Ogundele Esq., the learned Counsel for the Appellant submitted that, the law permits a fresh issue not raised at the Court below to be raised on appeal, with the leave of the appellate Court, once the issue relates to substantial point of law and the Applicant shows special circumstances. In support, he cited amongst others, the cases of OSUN STATE GOVERNMENT V. DALAMI NIGERIA LIMITED 2007 17 WRN 1, MBANG V. STATE 2007 16 WRN 94, ADELAKUN V. ORUKU 2007 17 WRN 8 and MORO LOCAL GOVERNMENT, KWARA STATE V. OYEBIYI 2007 13 WRN 189. He argued that, the new issues sought to be brought are on substantial points of law as they border on the relevant provisions of Sections 8, 8A, 11 (1) (2) and 11B (1) and (2) of the Chief?s Law, Cap C5 Laws of Ekiti State, 2012 and paragraph 7 (viii) and (ix) of the Applicant?s affidavit in support. That, there will be no need for fresh evidence with respect to the said

fresh issue before a decision can be made and that the nature of the case will not be changed in any way. He contended that, there is a special circumstance as it was the mistake of the Applicant?s earlier Counsel who failed to raise the issue at the Court below, that, the Court would have come to a different conclusion if raised and miscarriage of justice would have been prevented. In support, he cited the cases of WEMA BANK PLC. V. OSILARU 2008 4 WRN 160 P. 182, EDJEKPO V. OSIA 2007 23 WRN 1 P. 32 and ADEYERI V. OKOBI 1997 6 SCNJ 67. He therefore urged that, leave to raise and argue new grounds or issues, be granted the Applicants.

He submitted that, the Court of Appeal Rules 2016, Order 7 Rule 8 makes provision for amendment to enable complete adjudication on all matters in controversy such as is being sought, once there is a valid Notice of Appeal and the Court?s discretion is unhampered. He cited in support, the cases of FIRST BANK OF NIGERIA PLC V. MAY MEDICAL CLINICS AND DIAGNOSTICS CENTRE LIMITED 2001 27 WRN 162, ATTORNEY-GENERAL OF THE FEDERATION & ORS V. USMAN ABUBAKAR & 26 ORS 2003 11 FR 1 and ADEWUMI V. A-G EKITI STATE

2002 9 WRN 51 amongst others. In conclusion, he further urged that, the Applicants? application be allowed.

Mr. Owoseni Ajayi Esq., for the 1st, 5th and 7th Respondents submitted that, the Applicants? application does not qualify for the favourable exercise of the discretion of this Court as it will not be in the interest of justice to do so, since the Applicants failed to disclose sufficient reasons. In support, he cited the cases of DIRECT ON PC LTD. V. SOF TECH. LTD. 2011 10 NWLR, GBADAMOSI V. DAIRO 2007 3 NWLR PT. 1021 282, C. I. I. LTD. V. AJAOKUTA STEEL CO. LTD. 2015 2 EJSC P. 17-18, NDIC V. S.B. N. PLC. 2003 1 NWLR PT. 801 311 and UDO V. REGISTERED TRUSTEES OF B. C. S 2015 EJSC P.155, amongst others.

?He contended that, Ground 1 of the Original Notice of Appeal, which raised a fresh issue of notification of the appointment of the 1st Respondent to the executive council in accordance to the Chiefs? Law, was not canvassed at the Court below. For that reason, it should not be allowed as no leave was sought and obtained before filing. That, Ground 5 of the Proposed Amended Notice of Appeal which is repetitive of Ground 1,

should be refused. Therefore, urged that, Ground 1 of the Original Notice of Appeal and Ground 5 of the Proposed Notice of Appeal be struck out in that regard and cited the case ofOBITUDE V. O. C. B. LTD. 2016 31 EJSC 68.

He submitted that, the fresh issue sought to be raised from the Proposed Grounds 1 and 5 by the Applicants will require further and probable, conflicting documentary and oral evidence in their determination. Further that, lack of diligence of the Applicants to prosecute their case at the Court below cannot be allowed as a defence on appeal as the 1st, 5th and 7th Respondents will be prejudiced and in support cited the case of TOTAL UPSTREAM NIG. LTD. V. A. I. C. LTD. 2016 2 NWLR PT. 1497 467.

He contended that, an entirely new case or new line of defence will be introduced through the Proposed Grounds 1, 5 and 6 where leave to raise a fresh point on appeal is allowed and in support cited the cases of DIRECT ON PC LTD. V. SOF TECH. LTD. supra and UDO V. REGISTERED TRUSTEES OF B.C.S supra.

?In conclusion, he submitted that, change of Counsel by the Applicant does not and should not amount in any way to special

circumstance and urged that, the application be disallowed as it will not be in the interest of justice.

THE POSITION OF THE COURT
This Court has both statutory and inherent powers to grant leave at any time for amendment of Notice of Appeal amongst other powers, as is being sought in the instant application. See the cases of OKPALA V. IBEME 1989 20 NSCC PT. 1 P. 567, AMADI V. THOMAS ?APLIN & CO LTD. 1972 1 ANLR PT. 1 409 and IBANGA V. USANGA 1982 5 SC 103. The following are the relevant and specific provisions of the Rules of this Court with respect to this application:
Order 4
1. In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the court below?
Order 7
4. The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such term as the Court may deem just.
8. A notice of appeal may be amended by

or with the leave of the Court at any time.
And Order 15 provides for substitution of a party on the occasion of death.
The Court in an application such as the instant has the discretion whether or not to allow the reliefs being sought and the discretion must be exercised judicially and judiciously. What is conferred here is judicial discretion, discretion exercised within the confines of the law, lagalis discretio, justice, according to the prescribed rules of law. See the cases of OKON EBE V. COP 2008 1 SC PT. II 222, UNILAG V. OLANIYAN 1985 1 SC 295 and SOLANKE V. AJIBOLA 1968 1 ANLR 46.
I shall proceed to consider and determine the Applicants? prayers.

PRAYER 1
It is necessary at this juncture to note that, the 1st, 5th and 7th Respondents did not object to prayer 1 of this application which seeks to substitute the name of Prince Elijah Oladele Ayeni (Deceased Appellant) with the names of Prince Ayodele Oladiti Ayeni, Prince James Babatope Felelaran and Prince Babatunde Adeyemi Adeleke as the Appellants for the purpose of continuing with the prosecution of the instant appeal. In consequence, I shall proceed with the

determination of prayers 2 to 6. Prayer 1 in the result is hereby ordered as prayed. See Order 15 Rule 2 of the 2016 Rules of this Court.

PRAYERS 2, 3, 4 AND 6
The law is firm and settled that, once an appeal is competent, that is, there is a valid notice of appeal, the existing grounds of appeal may be amended by alteration, addition or subtraction from the original grounds already filed. From the foregoing, particularly Order 4 Rule 1 above, there is no doubt that, there is the power to amend by this Court, provided, discretion in that regard is judiciously and judicially exercised. See further the cases of UNION BANK OF NIGERIA V. BRANKSOME PROPERTIES LTD. 2007 LPELR 8800 CA, AWOTE V. OWODUNNI 1986 5 NWLR PT. 46 P. 941, FIRST BANK OF NIGERIA PLC. V. E. D. TSOKWA 2000 NWLR 13 P. 521, SOUTH ATLANTIC PET LTD. V. MIN. OF PETROLEUM RESOURCES 2014 4 NWLR PT. 1396 and SCANAD NIG. LTD. V. PRIMA GARNET COMM LTD. 2014 LPELR 23313 CA.

?The Applicants herein seek to add eight (8) more grounds of appeal stated as Grounds 4, 5, 6, 7, 8, 9, 10 and 11 as contained in the Proposed Amended Notice of Appeal, referred to as Exhibit 2, therewith attached.

The Original Notice filed on September 26th, 2016, contained four (4) grounds and the Proposed Amended Notice of appeal has twelve (12) grounds in all.

A notice of appeal may be amended at any time to validate grounds of facts or mixed law and facts. See the case of ANADI V. OKOLI 1977 7 SC 57. It is important that the amendment should serve the ends of justice and fairness and the other party can be compensated in costs. See the case of FIRST BANK OF NIGERIA PLC. V. MAY MEDICAL CLINICS OF DIAGNOSTIC CENTRE LTD. 2001 LPELR 1282 SC and PHARMATEK IND. PROJECTS LTD. V. BAYO OJO 1996 1 NWLR PT. 424 P. 332. It must further be stated that, at the time of an application such as this, the merit of the grounds sought to be amended should not be appraised, the Court only considers whether on the face of the proposed grounds, they are regular, viable and not defective. See the case of ESHO V. IGP 1959 3 FSC 37. Undoubtedly, the purpose of an amendment of notice of appeal is to ensure that the Appellant?s complaints against the decision in focus are before the Court and ventilated without any hindrance. See the cases of AKINGBOLA V. INTERNATIONAL CONTINENTAL BANK PLC.

2014 LPELR-22417 CA and NALSA & TEAM ASSOCIATES V. NNPC 1991 8 NWLR PT. 212 652 wherein the apex Court held that, when a party detects an error in the proceedings, which if not corrected, will adversely affect his chances and has by application made effort to amend, the principles of justice demand that he should not be denied the opportunity to do so.

With respect to raising fresh issue on appeal, the law is trite and settled that, where a party seeks so to do, he must apply for and obtain the leave of the appellate Court for the issue to be validly raised and entertained, since the Court will not ordinarily consider issues that are fresh which were not before and decided by the Court below. See the cases of NIGER PROGRESS LTD. V. NORTH EAST LINE CORPORATION 1989 3 NWLR PT. 107 68, UDZA UOR V. PAUL LOKO 1988 2 NWLR PT. 77 430, AKPENE V. BARCLAYS BANK OF NIG. 1977 1 SC 47 and ABINABA V. ENYIMADU 1953 12 WACA 171. Further on this issue, the apex Court stated that, no substantial point of law which has not been taken in the Court below will be allowed to be raised for the first time except under special circumstances. See the cases of

ADO IBRAHIM V. MAIGIDA LAWAL 2015 LPELR-SC99/2009, SAPO V. SUNMONU 2010 11 NWLR PT. 1205 374 and MAKANJUOLA V. BALOGUN 1989 3 NWLR PT. 108 192. That, the Appellate Court must be satisfied that no further or additional evidence is required to be considered. See the case of ADESOKAN V. ADETUNJI & ORS 1994 LPELR-SC233/1991. The Court stated thus in the case of OWNERS OF M/V GONGOLA HOPE & ANOR v. SMURFIT CASES (NIG) LTD & ANOR 2007 LPELR-2849 SC:
In any event, this Court will not generally allow a party on appeal to raise a question or an issue not raised in the Court of Appeal or to grant leave to argue fresh grounds not canvassed in the Court on Appeal except where the new grounds involve substantial points of law substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice. Even in such a case, there must be the evidence adduced by the party relying on the new issue? Invariably the Court will only allow a fresh issue to be argued on appeal where the issue is relevant and no further evidence is necessary.”
?There are certain guiding

principles applied by the Courts when considering whether or not a fresh issue may be raised on appeal which in the main are as follows:
1. The Applicant needs and must obtain the leave of the appellate Court
2. It needs be shown that the new points sought to be raised involve substantial issues of substantive or procedural law which need to be allowed to prevent an obvious miscarriage of justice.
3. Need to show that no further evidence is required to resolve the issue for determination.
The foregoing three conditions must co-exist. See the cases of JOV. V. DOM 1999 9 NWLR PT. 620 538, KWAJAFFA V. BANK OF THE NORTH 2004 13 NWLR PT. 889 146, ALHAJI AYODELE ALAWIYE V. MRS ELIZABETH OGUNSANYA 2012 LPELR-SC229/2007 and ADESOKAN V. ADETUNJI & ORS 1994 LPELR-SC 2331 1991.

The additional grounds being sought to be filed by the Applicants without the particulars are hereunder reproduced for ease of reference:
GROUND 4
The lower Court erred in law when it struck out the Appellant?s suit in its entirety without considering the representative capacity in which the Appellant instituted the suit.

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GROUND 5
The learned trial judge erred in law in holding that the Claimant/Appellant was bound to make representation to the Ekiti State Executive Council when there was no evidence before the Court that any notification of declaration of the 1st Defendant/Respondent?s appointment had been made to the Executive Council in pursuance of Section 11 (2) of the Chiefs Law of Ekiti State, 2012.
GROUND SIX
The learned trial judge misdirected himself in reaching his decision when he failed to advert (sic) his mind to the fact that the Governor of Ekiti State has not prescribed the manner for making representations against an appointment.
GROUND SEVEN
The learned trial (sic) misdirected himself in law when he failed to advert his mind to the provisions of Section (B) (1) of the Chiefs Law Cap, C5 Laws of Ekiti State which prescribed the procedure for challenging the appointment of another person as an Oba by an aggrieved person; but rather the learned trial judge preferred the provisions of Section 11 (1) and (2) which did not make any reference to instituting an action in the High Court.
GROUND EIGHT
The learned trial judge erred

in law in holding that the Claimant/Appellant has no locus standi to institute the suit on appeal when the learned trial judge failed to advert his mind to the three conjunctive pre-conditions prescribed by Section 11 A of the Chiefs Law Cap, C5 Laws of Ekiti State, 2012 for disqualifying a candidate, whose candidature has been annulled, from being considered again.
GROUND NINE
The learned trial judge erred in law when he held that Throughout the length and breadth of the said sections of the law, there is no where the issue of Ifa Consultation was raised.
GROUND TEN
The learned trial judge erred in law when he held that Section 11A expressly states that nullification of appointment for whatsoever reason.”
GROUND ELEVEN
The learned trial judge erred in law when it held that the clear provisions of Section 11A of the Chiefs Law have extinguished not only the right of the claimant but also that of his branch to be considered for appointment again and it is the turn of the next branch to present a candidate to fill the vacant Olupoti of Ipoti

Chieftaincy Stool.”
GROUND TWELVE
The decision of the learned trial Court is perverse.
The fresh issues of law as stated by the Applicants are bordering on notification of appointment by the Secretary to the Chieftaincy Committee to the Executive Council with respect to the provisions of Sections 8, 8A, 11 (1), (2), 11A and 11B (1) and (2) of the Chiefs Law Cap C5, Laws of Ekiti State, 2012.
The pertinent question at this point is whether or not this Court should exercise its discretion in favour of this application, thereby, allowing an amendment of the Original Grounds as contained in the Proposed Grounds. The guiding principles for amendment as already stated include that, once the applicant can point to one valid ground of appeal, amendment of the notice of appeal should be allowed as many times as possible in order that the complaints of the Applicant are before the Court and ventilated. See the cases of UNION BANK OF NIG. V. BRANKSOME PROPERTIES LTD. supra NUC V. ALLI & ANOR. 2013 LPELR 21444 CA and FIRST BANK OF NIG. PLC. V. MAY MEDICAL CLINICS OF DIAGNOSTICS CENTRE LTD. supra and AKINGBOLA V.INTERNATIONAL CONTINENTAL BANK PLC. supra.

The amendment must serve the ends of justice and fairness and the filing of a preliminary objection by the Respondent should not preclude the Applicant from seeking to amend. The merit of the grounds sought to be amended should not be appraised at this time. In other words, whether or not the grounds would succeed is not part of the consideration at this time as it is a different matter entirely. See the case of ESHO V. IGP supra. The Court only needs to look at the Proposed Grounds whether on the face thereof, they are viable/regular and not defective.

For that purpose, I shall refer to the ten (10) paragraph Counter-affidavit of the 1st, 5th and 7th Respondents in opposition to this application. Having very carefully studied the points raised therein, I proceed thus:
?On prayer 4, one agrees with the submission of the learned Counsel for the Respondents that, the issue of leave for grounds of mixed law and facts does not arise herein, given the provision of Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria. It provides that, a party dissatisfied with the final decision of a

High Court can appeal on any ground, be it law, mixed law and fact or facts. See the cases of OANDO PLC. & ORS V. ADEWUYI & ORS 2013 LPELR-CA/I/61/2009, TOTAL INT. LTD. V. AWOGBORO 1994 4 NWLR PT. 337 147, AQUA LTD. V. ONDO STATE SPORTS COUNCIL 1988 4 NWLR PT. 91 622, RABIU V. THE STATE 1981 2 NCLR 293 and SEVEN-UP BOTTLING COY. PLC. V. ABIOLA & SONS BOTTLING COY. LTD. & ANOR. 2001 LPELR-CA/IL/112/99. It is reproduced hereunder thus:
Section 241 (1)
An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
The instant appeal emanated from the final decision, howbeit, a Ruling, which was a determination of the Court below at first instance. The apex Court stated as follows in the case of TOMTEC NIGERIA LTD. V. FHA 2009 LPELR-3256 SC:
“Section 318 of the 1999 Constitution defines “decision” as follows: “decision” means, in relation to a Court, any determination of that Court and includes judgment, act, order,

conviction, sentence or recommendation.”
To decipher whether or not a decision is final or interlocutory, the test is to look at the order made therein and not the nature of the proceedings. See the case of CHIEF NWANKWO ALOR & ANOR. V. CHRISTOPHER NGENE 2007 17 NWLR PT. 1062 163 where it was held that:
A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced.
See also the cases ofSAMUEL FADIORA & ANOR IN RE SAMUEL FADIORA V. FESTUS GBADEBO & ANOR 1978 LPELR-1224 SC 1978 ALL NLR 42 and BLAY & ORS V. SOLOMON 1947 12 WACA 17. In view of the foregoing, it is as of right for the Applicants to file grounds, whether of law, mixed law and fact or facts.

?It was contended on behalf of the 1st, 5th and 7th Respondents that Ground 5 in the Proposed Amended Notice of Appeal is substantially the same with Ground 1 in the Original

Notice of Appeal. Upon very careful reading of the said two Grounds, one agrees with the submission that the two Grounds are similar. In my view and humbly, Ground 5 appears only to expatiate or expound on the issue therein. However, one finds that the main thrust or complaint therein is that, the Court below failed to take cognizance that, there was no evidence of the notification of the 1st Respondent?s appointment according to Section 11 (2) of the Chiefs Law of Ekiti State as the said provision had not been set into motion. Ground 5 can very well substitute Ground 1 in my humble view, but that is not the prayer herein. Rather, it is sought to be an addition when in substance it is the same and that cannot be allowed in order to avoid unnecessary proliferation of grounds.

It was argued that, Ground 8 in the Proposed Amended Notice of Appeal and Ground 2 in the Original Notice are substantially the same. One finds this position to be correct in my humble view. Ground 8 only elaborates on the issues which are the same in the two Grounds. The grouse in the two Grounds is based on Section 11A of the Chiefs Law of Ekiti State, the capacity in which

the Appellant instituted the action at the Court below, the issue of the processes of selection and the decision of the apex Court in that regard, to the effect that, the Appellant was not duly appointed. Again in my view and humbly, Ground 8 can substitute Ground 2, but the prayer here is to be an addition which will bring about proliferation.

Ground 9 of the Proposed Amended Notice is contended to be substantially the same with Ground 3 in the Original Notice of Appeal. One finds that the two grounds are substantially on the provision of Section 8 (1) (e) of the Chiefs Law of Ondo State with respect to Ifa consultation. That also will be proliferation.

It is contended that Grounds 5, 6, 7, 10 and 11 of the Proposed Amended Notice of Appeal contain issues that are highly contentious and new evidence will be required in respect thereof. Having carefully considered the contents of Grounds 5 and 6, it would appear that further evidence would be required and for that reason, the Court is not allowed to exercise its discretion favourably in that regard. The firm position of the law as stated by the apex Court in the case of OWNERS OF M/V GONGOLA HOPE & ANOR v. SMURFIT CASES NIG LTD & ANOR

2007 LPELR-2849 SC is as follows:
Invariably the Court will only allow a fresh issue to be argued on appeal where the issue is relevant and no further evidence is necessary.”
The grouse with respect to Grounds 7, 10 and 11, is with respect to resolution of conflicting provisions of the same law, the interpretation of Section 11 (B) (2) and 11 (1) and (2) on the one hand and Section 11A on the other and that there will be need for further evidence. It was also argued that Grounds 4, 6 and 7 of the Proposed Notice of Appeal contain fresh points of law which were not raised at the Court below. As aforestated, leave to raise fresh issue on appeal will be granted where the new grounds involve substantial points of law or procedural in order to prevent an obvious miscarriage of justice in so far as further evidence will not be necessary. Proposed Ground 4 which is substantially on the capacity in which the Appellant sued, in my considered view, would appear to not require further evidence. The issue involved is about what was considered in the Ruling of the Court below

which is contained in the Record before this Court and no more. It can therefore be allowed. Ground 7, further in my view, would not call for further evidence and therefore qualifies to be allowed as an additional ground. Proposed Ground 6 appears to require further evidence and therefore would not qualify.?
Prayer 6 as contained on the Motion paper, in my considered view and humbly, would appear to be the same with Ground 5, fresh issue of law bordering on notification of appointment by the Secretary of the Chieftaincy Committee to the Executive Council with respect to Sections 8, 8A, 11 (1), (2), 11A and 11B (1) (2) of the Chiefs Law of Ekiti State. From the foregoing paragraphs one has found that there will be need for further evidence in respect of this fresh issue which consequently falls within the three (3) guiding principles on whether or not to allow a fresh issue to be raised on appeal. Having therefore so found and having also refused the addition of Ground 5 in the Proposed Amended Notice of Appeal, it will be reprobating and approbating to allow Prayer 6 which is on the same issue. In consequence, Prayer 6 is refused. This finding in respect

of Ground 5 in my considered view and humbly, renders Ground 1 in the Original Notice of Appeal as submitted by the 1st, 5th and 7th Respondents? Counsel, incompetent, since the leave of this Court was not first sought and obtained. Ground 1 in the Original Notice of Appeal is therefore, hereby struck out.

In the light of the foregoing, prayer 1 is granted as prayed; Prayer 2 is granted as follows in respect of the Proposed Amended Notice of Appeal, Exhibit 2: Grounds 4, 7, 10 and 11 are hereby allowed; Prayer 3 is granted in respect of Grounds 4, 7, 10 and 11. Prayer 4 is incompetent, cannot be granted and is hereby struck out; On Prayer 5, the Applicants are granted 14 days within which to file fresh copy of the amended notice of appeal; Prayer 6 for the reasons given above is refused.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in the draft form, the Ruling just delivered by my learned brother E. O. WILLIAMS-DAWODU, JCA.

The prayers of the Applicants/Appellants are as recapped in the lead Ruling. In a nutshell, the Applicants/Appellants had prayed amongst

others for an order for leave to amend the original notice and grounds of appeal. An order to file additional grounds of appeal. Also an order to raise and argue fresh grounds of appeal all in the proposed amended notice of appeal.
These prayers are normally written with the discretionary powers of the Court to grant. However, such discretionary powers must be exercised judicially and judiciously according to law.
The Supreme Court in the case of F.B.N. Plc. Vs May Medical clinics and Diagnostic Centre held that-
Once there is a valid notice of appeal, it can be amended.”
See Okpala Vs Ibeme (1989) 2 NWLR Pt. 102 Pg. 208, Adelaja Vs Alade (1994) 7 NWLR Pt. 358 Pg. 537. The purpose of such an amendment must be to ensure that the complaint of the Appellant against the proceedings in question are laid and ventilated before the Court. The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument so long as the amendment would

serve the ends of Justice and fairness, and the other party can be compensated by costs. See Pharmatek Industrial Protects Ltd Vs Bayo Ojo (1996) 1 NWLR Pt. 359 Pg. 332 at 338? per Uwaifo JSC. See also Salisu Vs Mobolaji (2013) LPELR 22019 Fajebe Vs Opanuga (2019) LPELR 46348.
It is settled that once the original notice and grounds of appeal is valid proper and competent, the existing ground of appeal may be amended by alternation, addition on a subtraction from the original grounds of appeal filed. See Awote Vs Owodunni (1986) 5 NWLR Pt. 46 Pg. 941, Ade Coker Vs UBA Plc (1997) LPELR 880.
It therefore means that an Appellant who wishes to amend his notice and grounds of appeal is at liberty to do so. However, in granting such discretion, the Court is only mandated to exercise such discretion judicially and judiciously.

For this and for the more robust reasoning in the lead Ruling, I too must grant the prayers as contained in the more details contained in the lead Ruling.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother Hon.

Justice E.O. Williams-Dawodu JCA.

His Lordship has ably and adequately treated all the issues raised and canvassed by learned counsel to the parties in this appeal.

I am in complete agreement with the reasoning and conclusion arrived at by granting prayers 1,2,3 and consequently striking out prayers 4 & 6 for being incompetent.

I also abide with the order granting 14 days within which the applicant can file a fresh copy of the Amended notice of appeal.

Appearances:

L.O. Ogundele, Esq. with him, Idowu Owoeye Esq.For Appellant(s)

Owoseni Ajayi Esq. with him M.S. Ejelonu Esq. and O.T. Basanwo Esq. Learned Counsel for the 1st, 5th & 7th Respondents.
A.A. Moshood, L.O. (Ministry of Justice, Ekiti State) – Learned Counsel for the 2nd, 3rd, 4th & 6th Respondents.For Respondent(s)

Appearances

L.O. Ogundele, Esq. with him, Idowu Owoeye Esq.For Appellant

AND