SAKA BURAIMOH & ORS v. TUNDE ALEJO
(2012)LCN/5476(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of June, 2012
CA/AK/5/2010 (R)
RATIO
PRACTICE AND PROCEDURE: WHETHER AN AMENDED COURT PROCESS SUPERSEDES AN ORIGINAL PROCESS
”The law is settled that an amended court process supersedes the original process. It has been held by the Supreme Court that “an amendment relates back to the date of the suit, process or document” – per Ogbuagu JSC in Shell Petroleum Development Company Limited v. Chief Tigbara Edamkue & Ors. (2009) 14 NWLR (Pt.1160) 1 at 25, para. C. See also the cases of Anambra State Environmental Sanitation Authority & Anor. V. Raymond Ekwenem (2009) 13 NWLR (Pt.1158) 410; Vulcan Gas Ltd. V. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) 9 NWLR (Pt.719) 610 and Oduwaiye v. Oresanya (1968) NMLR 430. See further the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 186 – 187, paras. H – C where the Supreme Court elaborately discussed the effect of amended pleadings thus: “Once pleadings are duly amended by the order of court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. This, however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law, established is that such original pleading which has, been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried before the court. Not that it no longer exists. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. Thus, it cannot be considered as the basis of one’s case in any action. Nor may a court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 9 and 12 and Agbaisi and others v. Ebikorefe and others (1997) 4 NWLR (Pt.502) 630 at 647 – 649.” Per ADUMEIN, J.C.A.
APPEAL: WHEN AN INTERESTED PARTY CAN APPEAL
”For an applicant to appeal as an interested party, as in this case, he must show that the decision proposed to appeal from is against him or against his interest. See Eternal Sacred Order of The Cherubim and Seraphim v. Talabi & Ors. (2001) 6 SCNJ 438 at 455, per Kastina-Alu (JSC, as he then was, later CJN).” Per ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SAKA BURAIMOH
(For and on Behalf of member Ufimokun Family of Ukere Oke Family, Akure)
IN THE APPLICATION OF:
1. ALHAJI OLATUNDE AKOREDE
2. ALHAJI RAHAMAN AKOREDE APPLICANTS
(For themselves and on Behalf of Alhaji Yayi Akorede stock of Obagbuagun Family of Akure) Appellant(s)
AND
TUNDE ALEJO Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated the 23rd day March, 2011 and filed on the same day, the applicants: Alhaji Olatunde Akorede and Alhaji Rahaman Akorede, “for themselves and on behalf of Alhaji Yayi Akorede stock of Obagbuagun Family of Akure” are seeking the following relief, namely:
“1. An order joining the 1st and 2nd applicants as interested parties in the substantive appeal before this Honourable Court
2. An Order allowing the 1st and 2nd applicants to appeal against the judgment of the lower court as interested parties in the substantive appeal before this Honourable Court.
3. An order extending the time within which the 1st and 2nd Applicants may be allowed to file their notice of appeal in this case as interested party out of time.
4. Leave of court for the applicants to raise for the 1st time issue of non-suiting which did not form part of the judgment of the lower (sic) in view of the evidence before the trial court.”
The grounds for the application as set out in the motion paper, are:
1. The Applicants were not aware of the purported representative action initiated on their behalf by the plaintiff/appellant before the lower court.
2. The consent of the applicants were not sought and obtained before the appellant instituted the action at the lower court for and on behalf of Obagbuagun Family.
3. The 1st and 2nd Applicants’ family land at Ukere – Oke is distinct and separate from that of the
Plaintiff/Appellant.
4. The 1st and 2nd Applicants were never aware of the pendency of the matter at the lower court hence they could not join as a party at the lower court.
5. It was revealed at the lower court that the land at Ukere-Oke was owned by eleven different sub-families families (sic) that constituted Obagbuagan family who were not before the lower.
6. The 1st and 2nd Applicants are desirous and ready to pursue the appeal.
7. The Appellant/Plaintiff at the lower court only constitutes one branch out of the 11 families that owned the land at Ukere-Oke.
8. None of the remaining ten (10) families that owned the land at Ukere-Oke was informed nor carried along by the Plaintiff/Appellant when the matter was at the trial court.
9. The land in dispute has ceased to be family land as each of the sub-families that make up the larger Obagbuagan Family had surveyed their individual interest following the portioning of the land amongst the different sub-families that make the Obagbuagan Family.
10. That the Plaintiff/Appellant was aware of this fact, yet he went ahead to initiate the suit at the lower court in the name of Obagbuagan Family.
11. That it was when the Defendant/Respondent was disturbing the Applicants’ tenants on their own portion of the land that the Applicants became aware of the existence of the case at the lower court.
12. That the Defendant also encroached on the vacant plots of the Applicants’ family land.”
The motion is supported with an affidavit of 32 paragraphs deposed to by the 1st applicant – Alhaji Olatunde Akorede and tendered therewith are exhibits A and B – the judgment sought to be appealed against and the applicants’ proposed notice of appeal. The respondent – Tunde Alejo filed a counter affidavit of 12 paragraphs on the 1st day of June, 2011 and in reply thereto, the applicants filed a further affidavit of 26 paragraphs on the 22nd day of September, 2011. At the hearing of the motion, O. S. Adedeko, Esq., learned counsel for the applicants stated that the application was brought pursuant to sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 and Order 7 rules 2 and 10(1) of the Court of Appeal Rules, 2007 and argued that “the decision of the lower court has affected the rights of the applicants in respect of the subject matter”. On the meaning of “person interested’, learned counsel referred to A.G., Federation v. Manufacturers’ Association of Nigeria (2008) All FWLR (Pt.419) 524 at 534 -535. Learned counsel also relied on the case of Okonkwo v. U.B.A (2011) 10 SCM 64 at 71 and urged the Court to grant the application.
Prince A. A. Ojopagogo with Gideon Okpara, Esq., learned counsel for the appellant/ respondent did not oppose the application. The motion was, however, vehemently opposed by Biodun Fasakin Esq. with Abayomi Ale, Esq. and Miss Toyin Olowookere learned counsel for the respondent/respondent. Learned counsel argued that the application was incompetent and that the applicants did not disclose any sufficient interest. Learned counsel submitted that the applicants did not seek the trinity prayers as required by section 24 of the Court of Appeal Act and that relief 3 was, accordingly, incompetent. Counsel argued that if prayers 1 – 3 were refused, prayer 4 would fail.
In reply, learned counsel for the applicants argued that trinity prayers would apply to a situation where the appeal ab initio was not as of right, He contended that, in the instant application, the applicants were seeking to appeal against a final decision and that the only ground is to seek leave to appeal as an interested party under the Constitution.
I have examined the record of appeal in this matter. In the writ of summons in Suit No. AK/52/2002 taken out in the High Court of Ondo State, Akure Judicial Division, there were initially two (2) plaintiffs, namely: Alhaji Saliu Obagbuagun and Saka Buraimoh, who instituted the suit “for and on behalf of Obagbuagun Family”. The plaintiffs in the court below filed a statement of claim dated the 30th of April, 2002 but filed on the 2nd day of May, 2002 covering pages 4 – 5 of the record of appeal. By an amended statement of claim, spanning pages 20 – 21, only one plaintiff, the initial 2nd plaintiff – Saka Buraimoh, “for and on behalf of Ufimokun Family of Ukere Oke, Akure” claimed thus:
“WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:
(a) A declaration that the plaintiff is entitled to Statutory Right of Occupancy in respect of parcel of land lying, being and situate at Ukere Oke off Akure/Idanre Road Akure, a place within the jurisdiction of this honorable court.
(b) N500,000.00 damages for the act of trespass committed and still being committed by the defendants on the said parcel of land.
(c) A perpetual injunction restraining the defendants, their agents, servants or privies from committing further act of trespass on the parcel of land.”
The amended statement of claim contains 16 paragraphs and the relief reproduced above. I have carefully examined the amended statement of claim and in no one of the paragraphs is reference made to “Obagbuagun Family of Akure” or “Alhaji Yayi Akorede” section thereof. The law is settled that an amended court process supersedes the original process. It has been held by the Supreme Court that “an amendment relates back to the date of the suit, process or document” – per Ogbuagu JSC in Shell Petroleum Development Company Limited v. Chief Tigbara Edamkue & Ors. (2009) 14 NWLR (Pt.1160) 1 at 25, para. C. See also the cases of Anambra State Environmental Sanitation Authority & Anor. V. Raymond Ekwenem (2009) 13 NWLR (Pt.1158) 410; Vulcan Gas Ltd. V. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) 9 NWLR (Pt.719) 610 and Oduwaiye v. Oresanya (1968) NMLR 430. See further the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 186 – 187, paras. H – C where the Supreme Court elaborately discussed the effect of amended pleadings thus:
“Once pleadings are duly amended by the order of court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. This, however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law, established is that such original pleading which has, been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried before the court. Not that it no longer exists. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. Thus, it cannot be considered as the basis of one’s case in any action. Nor may a court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 9 and 12 and Agbaisi and others v. Ebikorefe and others (1997) 4 NWLR (Pt.502) 630 at 647 – 649.’
(Underlining mine for emphasis)
In the present case, the amended statement of claim supersedes the claims in the writ of summons and the initial statement of claim. It should also be noted that the case in the lower court was finally fought between “SAKA BURAIMOH (for and on behalf of Ufimokun Family of Ukere-Oke, Akure )” and TUNDE ALEJO and not between the initial parties as stated earlier in this ruling. Neither the interest of Obagbuagun Family of Akure nor any of the branches thereof was an issue arising from the appellant’s/respondent’s amended statement of claim. Therefore, the applicants who claim to be the “Alhaji Yayi Akorede stock of Obagbuagun Family Of Akure” have no interest to protect in a case fought by the appellant/respondent “for and on behalf of members of Ufimokun family of Ukere Oke, Akure” without any reference at all to Obagbuagun Family of Akure.
The applicants, in my view, appear to be acting on the erroneous impression that the suit in the lower court was contested by the initial parties thereto and upon the original statement of claim earlier referred to. Having regard to the final parties and the state of pleadings in the lower court, the applicants have not shown that they are necessary parties whose presence is mandatory for the full, effective and effectual disposal of this appeal.
Section 243(a) of the Constitution of the Federal Republic Of Nigeria, 1999 (applicable to this appeal) provides that the right of appeal from a decision of the High Court, as in this case, is “exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of…the High Court or the Court of Appeal at the instance of any other person having an interest in the matter….”. In the instant application, the applicants have not shown that they have any interest in the land in dispute allegedly belonging to Ufimokun Family lying, situate and being at Ukere Oke, Akure nor that the said land is one and the same parcel of land as the one they claim belonged to their father, as per paragraph 20 of their affidavit in support of this motion. Furthermore, the applicants have not shown that the decision of the lower court was against them or their interest. For an applicant to appeal as an interested party, as in this case, he must show that the decision proposed to appeal from is against him or against his interest. See Eternal Sacred Order of The Cherubim and Seraphim v. Talabi & Ors. (2001) 6 SCNJ 438 at 455, per Kastina-Alu (JSC, as he then was, later CJN).
The applicants, having failed to show that the decision of the lower court they seek leave to appeal from was against them or their interest, cannot have the discretion of the Court exercised in their favour.
Under the circumstances and facts of this application, I find it lacking merit and it is liable to be dismissed. The application is, accordingly, hereby dismissed.
The sum of N20, 000.00 is hereby awarded as costs in favour of Tunde Alejo – the respondent/respondent against the applicants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the ruling of my learned brother, MOORE A. A. ADUMEIN, JCA just delivered. The main grounds of the applicants’ application dated 23/3/2011 seeking leave to be joined in the appeal as interested parties is that the plaintiff/appellant on record (and one other, now deceased) instituted the action before the lower court in a representative capacity for themselves and on behalf of the Obagbuagun family without their knowledge or consent. That they did not become aware of the suit until after judgment had been delivered. That the expanse of land at Ukere-Oke, Akure has ceased to be family land and is now owned by eleven different sub-families that formerly constituted the larger Obagbuagun family. That each of the sub-families, including the 1st and 2nd applicant had surveyed their individual portions and partitioned same and therefore the appellant had no right to institute an action for declaration of title in a representative capacity for and on behalf of the entire Obagbuagun family. They are dissatisfied with the judgment and seek leave to appeal against it as interested parties.
In the course of proceedings before the court below, the statement of claim was amended. The Amended Statement of Claim dated 15/6/05 was fifed pursuant to an order of the court dated 7/6/05. It can be found at pages 20 and 21 of the record. By the amended statement of claim the appellant herein sued for himself and on behalf of the Ufimokun family of Ukere-Oke, Akure. By this amendment, the entire premise of the present application has been defeated. Since the applicants contend that they were unaware of the pendency of the suit, it is not surprising that they were unaware that the statement of claim had been amended during the course of proceedings to reflect the appellant’s claim on behalf of his own branch of the Obagbuagun family. My learned brother has examined the case law on the effect of an amendment of pleadings in the lead judgment. I agree with his analysis and have nothing to add in that regard. I agree with His Lordship that by the amendment the bottom had been knocked off the application. I also agree with the view that the applicants failed to show how the judgment they seek to appeal against has affected their interests.
For these and the more detailed reasons advanced in the lead judgment, I also find the application to be completely devoid of merit. It is accordingly dismissed. I abide by the order for costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now, the ruling just delivered by my learned brother, Moore A. A. Adumein JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The applicants failed to show that they are necessary parties whose presence is mandatory for effectual disposal of the appeal. I also hold that the application lacks merit and should be dismissed. It is hereby dismissed. I abide by all the consequential orders made in the lead ruling including the order as to costs.
Appearances
Prince A. A. Ojopagogo with Gideon Okpara, for appellant/respondent.
O. S. Adedeko, Esq. for the applicants.For Appellant
AND
Biodun Fasakin Esq. with Abayomi Ale, Esq. and Miss Toyin Olowookere for the respondent/respondent.For Respondent
