SANNI v. FADIYA & ORS (2020)

SANNI v. FADIYA & ORS

(2020)LCN/15244(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/L/419/2016

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

WASIU SANNI APPELANT(S)

And

GAFARU YUSUF FADIYA 2. MUTIU LAWAL AKAPO 3. JAMIU OLAWALE LAWAL AKAPO 4. ALHAJI TAJUDEEN HAMZAT (For Themselves And For And On Behalf Of Onbiya Branch Of Aro Chieftaincy Family Of Ijora). 5. KOLAWOLE OLOYEDE RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF JURISDICTION MUST BE HANDLED FIRST WHEN RAISED IN ANY PROCEEDINGS

The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding. See Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (Vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672). The three ingredients must co-exist in order to infuse jurisdiction into a Court.

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OGBUINYA, J.C.A.

WHETHER OR NOT A FRESH ISSUE CAN BE RAISED IN THE COURT OF APPEAL WITHOUT LEAVE OF COURT

The marrow of the protest is plain: that it is a fresh issue which must not be raised before this Court without leave of Court. A fresh issue is one which was not adjudicated and pronounced upon by a lower Court whence an appeal emanated. See Olalomi Ind. v. NIDB (2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate Court is not clad with the jurisdiction to entertain a fresh issue save with the leave of Court sought and obtained. See Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwanbo (2016) 7 NWLR (Pt. 1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335; Awala v. NITEL Plc (2019) 15 NWLR (Pt. 1695) 372; Ibrahim v. APC (No.1)(2019) 16 NWLR (Pt. 1699) 444. Leave, in this context, connotes permission. See S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1983) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd (2008) 3 NWLR (Pt. 1073) 179.
However, this cardinal principle of law, that a fresh issue cannot be attended to by an appellate Court except with the leave of Court, is elastic. It admits of an exception. Its rider is deep rooted in the wide domain of jurisdiction. If a new point borders on jurisdiction of a Court, a party has the licence of the law to raise it on appeal without the leave of Court. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Moses v. State (2006) 11 NWLR (Pt. 992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; Opobiyi v. Muniru (2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W. R. & R. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass. (Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414) 159; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Sakati v. Bako (2015) 14 NWLR (Pt. 1480) 531; Wema Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484) 93; Onemu v. Comm., Agric & Natural Resources, Asaba (2019) 11 NWLR (Pt. 1682). PER OGBUINYA, J.C.A.

WHETHER OR NOT THE ISSUE OF PROPER/IMPROPER PARTIES TOUCHES ON THE JURISDICTION OF A COURT TO ENTERTAIN A MATTER BEFORE IT

It is now settled beyond any peradventure of doubt, that an issue of proper/improper parties touches and impinges on the jurisdiction of a Court to entertain a matter before it. Indeed, “a person who asserts the right claimed or against whom the right claimed is exercisable must be present to give the Court the necessary jurisdiction”, see Oloriede v. Oyebi(1984) 1 SCNLR 390 at 406, per Eso, JSC; Ekpere v. Aforiji (1972) 1 All NLR (Pt. 1) 220; Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61; G. & T. Investment Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; Ogbebor v. INEC (2018) 6 NWLR (Pt. 1614) 1; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98; Nworika v. Ononeze-Madu (supra). The wisdom for such joinder of a party is to make him bound by the result of the suit. See Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85; Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) 262; P.W.T. (Nig.) Ltd. v. J.B.O. Int’l (2010) 18 NWLR (Pt. 1226) 1; APC v. Karfi (2017) 16 NWLR (Pt. 1592) 457. PER OGBUINYA, J.C.A.

THE PURPOSE OF AN AMENDMENT

In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saidu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in sea of authorities, see Alsthom v. Saraki (2000) 11 SCNJ I;Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yusuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2000) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (Vol. 18) 755, GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227. PER OGBUINYA, J.C.A.

PRINCIPLES TO GUIDE THE COURT IN TREATING AMENDMENT OF COURT PROCESSES

There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide …or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise…’
See also C.G.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State (hereinafter addressed as “the lower Court”), coram judice: Bola Okikiolu-Ighile, J., in Suit No. LD/3820/1999, delivered on 29th June, 2015. Before the lower Court, the appellant and the fifth respondent and the first – fourth respondents were the defendants and the plaintiffs respectively.

The facts of the case, which transformed into the appeal, are amendable to brevity and simplicity. One of the recognised chieftaincy titles in Ijora Oloye of Lagos State is the Aro of Ijora Oloye. The first occupier of the stool was Ejimosu and, by the tradition of Ijora, his descendants would occupy it on rotational basis. The first – fourth respondents represented the Onbiya family of Ejimosu of Ijora which had never presented a candidate for the stool. On 7th December, 1999, late Chief Musibau Bashorun, the then Aro of Ijora, died after occupation of the stool for ten months. The first – fourth respondents alleged that on that 7th December, 1999, the fifth respondent, Kolawole Oloyede, with external aids, installed himself as the Aro of Ijora. Sequel to that unilateral action, the first – fourth respondents beseeched the lower Court for redress via a writ of summons filed on 22nd December, 1999. On 4th May, 2009, the lower Court ordered the fifth respondent to vacate the Aro Palace and parties to maintain status quo pending the determination of the case.

Due to a mix-up on the dates of proceeding, without the faults of the parties, the suit was struck out on 21st June, 2006. The first – fourth respondents filed an application for relistment of the action which was granted. During the pendency of the application, the appellant purportedly installed himself as the Aro of Ijora on 2nd July, 2006. The lower Court ordered the appellant to vacate the palace and same be locked up pending the final determination of the suit. In the suit, the first – fourth respondents had tabled against the appellant and the fifth respondents, jointly and severally, the following reliefs:
i) A declaration that the Aro Chieftaincy Family of Ijora Oloye Lagos is made of Four (4) Ruling Houses namely:-
i) Esuronbi Ruling House

ii) Onbiya Ruling House
iii) Talabi Ruling House and
iv) Oduntan Ruling House
ii) A declaration that each of the Ruling Houses is entitled to present a candidate to fill the vacant stool of Chief Aro of Ijora Oloye and in a rotational order.
iii) A declaration that since all the Ruling Houses (with the EXCEPTION OF ONBIYA Ruling House) have at one time or the other presented candidates that have occupied the seat of Chief Aro of Ijora, it is the turn of Onbiya Ruling House to present a candidate to fill the vacant stool.
iv) A declaration that the forcible breaking entry and occupation of the palace (i.e the IGA ARO) by the 1st Defendant on Tuesday, the 7th of December, 1999 and the 2nd Defendant on Friday 23rd June, 2006 is WRONGFUL, ILLEGAL, AND AFFRONT to the OJORA Chieftaincy Family and council which is the consenting Authority to the installation to the office of Chief Aro of Ijora Oloye.
v) An order of MANDATORY INJUNCTION directed to the 1st and 2nd Defendants to VACATE FORTHWITH his illegal and wrongful occupation of the palace of Chief Aro of Ijora (i.e. ‘IGA ARO’).
v) A declaration that the purported installation of the 2nd Defendant as the Aro of Ijora on Sunday the 2nd of July, 2006 is NULL and VOID and of no effect whatsoever.
vi) An order of perpetual injunction restraining the 2nd Defendant from parading himself as the Aro of Ijora of signing any document or taking any benefit that attaches to the said office.
vii) An order of PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants or any other member of ODUNTAN or TALABI Branch or any person at all from presenting or Parading themselves for installation to the vacant stool of Chief Aro of Ijora.
viii) An order of PERPETUAL INJUNCTION restraining the 2nd Defendant whether by himself, his servants agents or privies from presenting the 1st and/or the 2nd Defendants to the Ojora Chieftaincy Family for installation as Chief Aro of Ijora.
ix) Such further or other reliefs as this Honourable Court may seem fit to make in the circumstances.

In reaction, the appellant joined issue with the first – fourth respondents and denied liability. He claimed entitlement to the stool and counter-claimed against the first – fourth respondents as follows:

(a) A DECLARATION that the Oduntan family Branch of Aro Ejimosu Chieftaincy family is entitled to provide a candidate or candidates to fill the vacant stool of the ARO OF IJORA.
(b) A DECLARATION that the 2nd Defendant is the substantive and the reigning Aro of Ijora Oloye by virtue of his presentation, installation and capping as the Aro of Ijora Oloye by Chief Fatai Oyeyinka Aromire, the Ojora of Lagos who is the consenting authority on Sunday 2nd July, 2006.
(c) AN ORDER of the Honourable Court directing that the Aro of Ijora Oloye Palace locked up pursuant to the Honourable of the Court made on 13th July, 2006 be opened forthwith.
(d) A DECLARATION that the ONBIYA FAMILY is not a member and or branch of the Aro Chieftaincy family of Ijora.
(e) AN ORDER of perpetual injunction against the 1st defendant restraining the said 1st defendant from parading himself as a blood member of the Oduntan family branch of Aro Ejimosu Chieftaincy family.
(f) AN ORDER of perpetual injunction against the plaintiffs and or members of ONBIYA FAMILY whether by themselves, their servants, agents or privies or howsoever otherwise from holding themselves out as the ARO OF IJORA or wearing any regalia of Aro of Ijora or permitting themselves or taking any steps to be installed or recognized as the Aro of Ijora.

Following the rival claims, the lower Court had a full-scale determination of the suit. In proof of the case, the first – fourth respondents fielded four witnesses. In disproof of it, the appellant called two witnesses. A galaxy of documents were tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court as required by law. In a considered judgment, delivered on 29th June, 2015, the found at pages 1976 – 2037, Volume IV of the record, the lower Court granted the first – fourth respondent’s claim and dismissed the appellant’s counter-claim.

The appellant was dissatisfied with the decision. Hence, on 1st July, 2015, he lodged a 4 – ground of appeal, copied at pages 2063 – 2066, volume IV of the record, wherein he prayed the Court:
1. An Order of the Honourable Court dismissing the claims of the 1st to 4th Respondents as endorsed in the 2nd Amended Statement of Claim as incompetent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

An order of Honourable Court allowing the Appeal by granting in the endorsed Counterclaims of the Appellant as contained in the Amended Statement of Defence and counterclaim dated the 21st day of May, 2007.Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 12th March, 2020.

During its hearing, learned counsel for the appellant, K.O. Bakare, Esq., adopted the appellant’s brief of argument, filed on 2nd May, 2017 and deemed properly filed on 7th June, 2017, and amended reply brief, filed on 30th April, 2018 and deemed properly filed on 28th January, 2020, as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first – fourth respondents, C.O.I. Joseph, SAN, adopted the first – fourth respondents’ amended brief of argument, filed on 19th April, 2018 and deemed properly filed on 19th January, 2020, as forming his submissions against the appeal. He urged the Court to dismiss it. The fifth respondent, though served, filed no brief of argument.

In the appellant’s brief of argument, learned counsel distilled two issues for determination to wit:
a) Whether the Honourable Lower Court was clothed with jurisdiction to determine the claims of the 1st to 4th Respondents as founded on the 1st Amended Statement of Claim dated 7th day of May, 2007.
b) Whether the Honourable Lower Court did misapply the settled laws to the Counter-claims of the Appellant.

In the first – fourth respondent’s amended brief of argument learned counsel crafted two issues for determination viz:
i. Whether non-joinder of the Talabi and Esuronbi Families in this suit affects the competence of the suit as filed and thereby deny the trial Court the jurisdiction to hear the suit.
ii. Whether the trial Court properly evaluated the evidence before it.

A close look at the two sets of issues shows that they are identical in substance. In fact, the first – fourth respondents’ issues can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant; the undisputed owner of the appeal. Arguments on the issues
Issue one
Learned counsel for appellant enumerated the incidents/elements of jurisdiction and that lack of it would render a matter a nullity. He relied on Esuwoye v. Abodunrin (2016) 7 SC (Pt. 1) 66; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652; Madukolu v. Nkemdilim. He observed that misjoinder of a party would not oust jurisdiction of Court. He cited Unions Beverages Ltd. v. Pepsicola Int’l Ltd. (1994) 2 NACR 59; A.G. Leventis Nig. Plc v. Akpu (2007) 6 SC (Pt. 1) 239. He noted that the lower Court wrongly granted relief (vii), in the 2nd amended statement of claim, against Talabi branch of Ejimosu Aro family who had been discontinued from the suit. He stated a Court would not grant more than in a claim. He explained that the Talabi and Esurombi branches and the head of Aro Chieftaincy family were not parties to the suit. He then submitted that the absence of those proper parties affected the jurisdiction of the Court to hear the case and grant relief (vii). He referred to Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 44; Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115) 1. He reasoned that the grant of relief (vii), injunction, against Talabi branch would have been valid if its deceased representative, Elder E.A. Dorishamu, was substituted. He cited Incorporated trustees of Jumat UL-Muslim Council of Lagos v. Oki (2010) 1 NWLR (Pt. 1176) 616.

Learned counsel submitted that the lower Court lacked the jurisdiction to grant the motion of 24th April, 2009, for amendment, before it because it was not “during the trial before judgment” as provided in Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 (the High Court Rules). He relied on MC Invest. Ltd. v. Core Invest & Capital Markets Ltd. (2012) 6 SC (Pt. 1) 188. He described the motion as incompetent and the order a nullity. He referred to Manson v. Halliburton Energy Services (Nig.) Ltd. (2007) 2 NWLR (Pt.1018) 211. He asserted that rules of Court must be obeyed. He cited Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt. 1110) 355; G.M.O. Nworah & Sons Co. Ltd. v. Akputa (2010) 3 SC (Pt. 1) 23; MC Invest. Ltd. v. Core Invest. & Capital Markets Ltd. (supra). He added that the motion was incompetent because the lower Court did not consider the counter-affidavits and written argument of the appellant. He noted that the appellant’s counter-affidavit was uncountered. He cited FBN Plc v. Ndarake & Sons (Nig.) Ltd. (2009) 15 NWLR (Pt. 1164) 406. He claimed that the motion brought in new event, nomination, presentation, installation and capping of the appellant, which arose after the suit had been struck and before relistment when they ought to have filed new action. He relied on Gowon v. Ejike-Okongwu (2003) WRN 55.

On behalf of the first – fourth respondents, learned counsel contended that issue one was incompetent because it was a fresh issue without leave to argue it. He relied on A.-G., Oyo State v. Fairlakes Hotel Ltd. (1988) NWLR (Pt. sic) 1; Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271. He explained that the non-joinder of Talabi and Ejimosu families was not argued before the lower Court and so a fresh issue. He urged the Court strike it out.

Learned counsel, in the alternative, posited that non-joinder of a party would not render a suit incompetent nor deny a Court, seised of it, of jurisdiction to hear it. He described it as an irregularity. He cited Order 13 Rule 16(1) of the High Court Rules, Anyanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 497; C.R.S.N. Corp. v. Oni (1995) 1 NWLR (Pt. 371) 270. He asserted that the appellant noticed the irregularity but did not object to it timeously, but took fresh step thereby waiving it. He cited Order 5 Rule 2(1) of the High Court Rules; Merchant Bank of Nig. Plc. v. Nwobodo (2003) 3 NWLR (Pt. 648) 297. He postulated that the granted relief (vii) was not binding on the non-party to the suit who could apply for it to be set aside. He referred to P.N. Udo Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 144; Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 549; Liyanage v. SAN (1998) 13 NWLR (Pt. 582) 500. He reasoned that it was the affected party, Talabi family, not the appellant, that could complain against the order. He stated that the appellant and fifth respondent represented the Talabi family and acquiesced in the irregularity and could not complain now. He cited Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22. He observed that the appellant withdraw its preliminary objection on the point and could not now complain on the non-joinder of Talabi family on ground of waiver.

He cited Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Section 169 of the Evidence Act, 2011.

It was further contended that the amendment of 2nd amended statement of claim was done during trial before judgment and so did not breach Order 24 Rule 1 of the High Court Rules. He explained that trial started on 5th November, 2010 while the 2nd amended statement of claim was filed on 9th February, 2010. He stated that the lower Court, in granting the motion of 24th April, 2009 on amendment of pleadings, considered the guiding principles as expounded in Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214; Imonike v. A.-G., Bendel State (1992) 6 NWLR (Pt. 245) 296; Ita v. Ekpenyong (2001) 1 NWLR (Pt. 695) 587. He added that the amendment was to plead facts relating to the pronouncement of the lower Court over the appellant’s take over of the Aro of Ijora Palace. He concluded that the amendment did not prejudice the appellant.

On points of law, learned counsel for the appellant stated that jurisdictional issue could be validly raised without leave of Court. He cited Anyoha v. Chukwu (2008) 4 NWLR (Pt. 1076) 31; A-G Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210.

Issue two
Learned counsel for the appellant submitted that the lower Court wrongly applied the doctrine of lis pendis to the appellant’s installation when it was not pleaded and inapplicable to chieftaincy matters. He added that it only applied to land matters. He relied on Enekwe v. IMB (Nig.) Ltd. (2007) AII FWLR (Pt. 340) 1053/(2007) 11 WRN 1/(2006) 19 NWLR (Pt. 1013) 146. He noted that the motion of 22nd June, 2006, for relistment of the suit, had not been granted before the installation of the appellant thereby making the doctrine applicable. He cited Manson v. Halliburton Energy Services (Nig.) Ltd. (supra); Oyegbemi v. Aromire (2012) 30 WRN 142. He added that the lower Court raised the doctrine suo motu thereby denying the appellant his right to fair hearing. He cited Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149; Lawal v. Akande (2009) 2 NWLR (Pt. 1126) 425.

Learned counsel further submitted that the first – fourth respondents’ main claim were declaratory and they had the burden to prove their assertions. He cited Sections 131 and 133 of the Evidence Act, 2011; Salisu v. Mobolaji (2016) 7 SC (Pt. 1) 1. He claimed that their evidence, which were at variance with the pleadings, were improperly evaluated thereby making the decision perverse. He referred to Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1119) 427. He stated that they never pleaded nor gave evidence on the name of Onbiya as one of the children of Ejimosu. He described the motion, which brought in the deposition of CW4, as incompetent because it was not signed by a legal practitioner known to law and liable to be expunged. He persisted that the evidence of CW1 – CW4 did not link up Onbiya as one of the children of Ejiosu as pleaded in paragraph 13 of the 2nd amended statement of claim. He said that none of the documents tendered by the first – fourth respondents did the link up.

Learned counsel analysed Exhibits C10, C7 and K. He faulted the lower Court’s evaluation of them as showing the link up of Onbiya as a child of Ejimosu. He declared Exhibit K as inadmissible under Section 102(b) of the Evidence Act, 2011 as its certified true copy was not tendered. He cited Kwara State Water Corporation v. A.I.C. (Nig.) Ltd. (2009) AII FWLR (Pt. 485) 1738; S.T. Hons, Law of Evidence in Nigeria, Vol. 11, 2nd Edition, 2013 page 964. He urged the Court to expunge it. He referred to A.G. Leventis Nig. Plc v. Akpu (supra)

Learned counsel posited that the first – fourth respondents did not satisfy the traditional history in chieftaincy matter as they failed to plead and prove Onbiya as did of Ejimosu. He relied on Okuleye v. Adesanya (2014) 19 JMLR 126. He stated that the evidence of CW4 on declaration of customary law on appointment of Aro Ijora was not the business of the Court to declare even though it could apply it. He cited Husseni v. Mohammed (2015) 3 NWLR (Pt. 1445) 100; Esuwoye v. Abodunrin (supra). He asserted that only a member of a ruling house could aspire to traditional stool. He referred to Olanrewaju v. Oyesomi (2014) 16 JMLR. He insisted that the Onbiya was not a ruling house in Ejimosu Aro Chieftaincy family to contest for the Aro of Ijora stool.

Learned counsel conceded that the counter-claim was an independent action. He took the view that the lower Court improperly evaluated the appellant’s facts and evidence in the counter-claim. He reasoned that the first – fourth respondents did not join issue with the appellant on the counter-claim. He declared it as admitted and needed no proof. He relied on Esuwoye v. Abodunrin (supra). He said that since the counter-claim was declaratory, he needed minimal proof of it. He relied on the appellant’s evidence. He took the view that the lower Court should have looked at the unadopted/untendered deposition of Fatai Oyeyinka Aremu Aromire as a document in its file. He cited Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) (sic). He maintained that the lower Court did not evaluate the evidence, oral and documentary, on the counter-claim properly. He urged the Court to interfere. He cited A.G. Leventis Nig. Plc v. Akpu (supra).

For the first – fourth respondents, learned counsel conceded that the doctrine of lis pendis must be pleaded and applicable to land matters only. He stated its full latin expression – lis pendens pendent lite nihil innovator – nothing should change during pendency of action. He cited Doma v. Ogiri (1997) 1 NWLR (Pt. 481) 322. He however submitted that the lower Court did not apply the doctrine to the case but used to give effect to its findings on the appellant’s installation of 2nd July, 2006. He explained that the doctrine take along with authority used, Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806, pointed to the issue of self-help or contempt of Court by the appellant. He cited CBN v. Ubana (2017) 15 NWLR (Pt. 1587) 151.

Learned counsel argued that evaluation of evidence in civil cases was determined by preponderance of evidence in an imaginary scale of justice. He relied on Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352. He posited that the lower Court examined the evidence which were mostly documentary. He stated that the lower Court declared Exhibit D20 as inadmissible and no appeal on it, and it discountenanced Exhibit G16 for lack of link to the first – fourth respondents. He observed that the first – fourth respondents discharged the onus on them based on documentary evidence – the best evidence. He referred to Joseph v. Fajemilehin (2012) LPELR – 9849. He enumerated Exhibits A3, A4, C10, C7 and K as the key documents. He persisted that the lower Court evaluated them and referred to the different pages of the record. He said that the lower Court had the right to look at any portion of them. He cited Otuo v. Nteogwuile (1996) 4 NWLR (Pt. 440) 56. He pointed out that address of counsel would not take the place of evidence. He relied on Kaugama v. NEC (1993) 3 NWLR (Pt. 284) 681. He asserted that none of those documents was contradicted even under cross-examination. He relied on Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1. He insisted that the lower Court properly evaluated them and the appellate Court should not interfere. He cited Nkebisi v. State (supra).

It was further argued that there was no objection to the adoption of depositions of the three witnesses, CW1 – CW3, without objection. He described the appellant’s complaint on the issue as a fresh issue which required leave of Court. He relied on SPDC Nig. Ltd. v. Emehuru (2007) 5 NWLR (Pt. 1027) 347. He added that the lower Court declared a ruling on the motion of 18th October, 2010 and no appeal against the ruling. He described the point as incompetent for lack of ground of appeal. He cited Amadi v. A.-G., Imo State (2017) 11 NWLR (Pt. 1575) 92.

Learned counsel contended, per contra, that the first – fourth respondents joined issue with the appellant on the counter-claim – reply to statement of defence and counter-claim – paragraph 20. He relied on Exhibits A3, A4, C7, C10, and K. He reasoned that undisputed facts would be taken as established. He cited Amadi v. A.-G., Imo State (supra). He repeated part of his submissions on issue one, on jurisdiction. He added that the lower Court had the original jurisdiction over chieftaincy matter. He cited Section 272(1) of the Constitution, as amended; A.P. Plc v. Akinnawo (2012) 4 NWLR (Pt. 1289) 100. He concluded that a counter-claim was an independent action which required the same degree of proof like the main claim and the appellant failed to meet up with the standard of proof.

Resolution of the issues
In due obeisance to the dictate of the law, I will settle issue one first. The hub of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. Issue of jurisdiction is numero uno in adjudication. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

Now, the gravamen of the appellant’s chief grievance evinces two jurisdictional facets. The foremost one chastises the lower Court’s assumption of jurisdiction over the first – four respondent’s suit on account of non-joinder of proper parties. Incidentally, the first – fourth respondents greeted it with a vehement opposition to its consideration on the ground that it was not canvassed before the lower Court.
The marrow of the protest is plain: that it is a fresh issue which must not be raised before this Court without leave of Court. A fresh issue is one which was not adjudicated and pronounced upon by a lower Court whence an appeal emanated. See Olalomi Ind. v. NIDB (2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate Court is not clad with the jurisdiction to entertain a fresh issue save with the leave of Court sought and obtained. See Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwanbo (2016) 7 NWLR (Pt. 1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335; Awala v. NITEL Plc (2019) 15 NWLR (Pt. 1695) 372; Ibrahim v. APC (No.1)(2019) 16 NWLR (Pt. 1699) 444. Leave, in this context, connotes permission. See S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1983) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd (2008) 3 NWLR (Pt. 1073) 179.
However, this cardinal principle of law, that a fresh issue cannot be attended to by an appellate Court except with the leave of Court, is elastic. It admits of an exception. Its rider is deep rooted in the wide domain of jurisdiction. If a new point borders on jurisdiction of a Court, a party has the licence of the law to raise it on appeal without the leave of Court. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Moses v. State (2006) 11 NWLR (Pt. 992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; Opobiyi v. Muniru (2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W. R. & R. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass. (Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414) 159; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Sakati v. Bako (2015) 14 NWLR (Pt. 1480) 531; Wema Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484) 93; Onemu v. Comm., Agric & Natural Resources, Asaba (2019) 11 NWLR (Pt. 1682).
Indisputably, the kernel of the appellant’s grouse is that the Talabi branch/family of Aro of Ijora Chieftaincy was not joined to the action. It is now settled beyond any peradventure of doubt, that an issue of proper/improper parties touches and impinges on the jurisdiction of a Court to entertain a matter before it. Indeed, “a person who asserts the right claimed or against whom the right claimed is exercisable must be present to give the Court the necessary jurisdiction”, see Oloriede v. Oyebi(1984) 1 SCNLR 390 at 406, per Eso, JSC; Ekpere v. Aforiji (1972) 1 All NLR (Pt. 1) 220; Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61; G. & T. Investment Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; Ogbebor v. INEC (2018) 6 NWLR (Pt. 1614) 1; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98; Nworika v. Ononeze-Madu (supra). The wisdom for such joinder of a party is to make him bound by the result of the suit. See Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85; Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) 262; P.W.T. (Nig.) Ltd. v. J.B.O. Int’l (2010) 18 NWLR (Pt. 1226) 1; APC v. Karfi (2017) 16 NWLR (Pt. 1592) 457.
Since the point falls squarely within the wide perimeter of jurisdiction, the law grants the appellant the wide latitude to raise it without leave of Court. It follows that the appellant has not defiled the law by raising the issue of impropriety of non-joinder of Talabi family. The issue orbits around the jurisdictional competence of the lower Court over suit vis-a-vis the absence of Talabi family. On this score, this Court is equipped with the ample vires to entertain the issue notwithstanding that it was not pronounced upon by the lower Court. In the end, the objection, erected by the first – fourth respondents to snuff life out of the issue, at its embryo stage, is lame. It cannot fly. Accordingly, I overrule and dismiss it. I will proceed to attend to the issue on its merits.

As already noted, the meat of the appellant’s complaint is that the Talabi family of Aro Chieftaincy was not joined to the suit as a party. The position of the law, an inelastic one, is that where a necessary party who ought to be joined to an action is not joined, it does not rob the Court of jurisdiction to try it. In other words, the law treats the non-joinder of a necessary party as an irregularity that does not divest a Court of jurisdiction to entertain a matter. Nevertheless, the judgment/order, which is an offspring of such a matter, is not a nullity but does not bind that absent/non-joined party, see Azuh v. UBN Plc (2014) LPELR – 22913 (SC)/(2014) 11 NWLR (Pt. 1419) 580; Alioke v. Oye (2018) 18 NWLR (Pt. 1651) 247; Onemu v. Comm., Agric & Natural Resources, Asaba (2019) 11 NWLR (Pt. 1682) 1; Order 13 Rule 16(1) of the High Court Rules. The hallowed principle of law grants the Court the nod to correct such irregularity, perhaps on the prompting/supplication of the parties, by having recourse to the relevant rules of Court, see C.R.S.N. Corp. v. Oni (supra); Anyanwoko v. Okoye (supra); CBN v. Interstella Comm. Ltd. (supra).
Besides, I have, in due loyalty to the law, given a clinical examination to the record, the bedrock of every appeal. The Talabi family was originally a party on the representation of late Elder E.A. Dorishamu. On 19th May, 2010, the first – fourth respondents discontinued the suit against the Talabi family as manifest in page 979, Volume III of the mountainous record. Again, the fifth respondent’s counsel, K. Bakare, Esq., filed, on 22nd March, 2010, a preliminary objection challenging the suit on the non-joinder of the Tabali family. The objection monopolises pages 930 – 943, Volume III of the expansive record. On 23rd June, 2011, learned counsel withdrew the objection and same was struck out by the lower Court as borne out of page 1897, Volume IV of the elephantine record. I have to scoop or pluck out these proceedings in order to demonstrate that Talabi family members knew or ought to know of their non-existence as a party to the suit. In this wise, if they are peeved by relief (vii) granted against them, it is for them to approach the Court to have it set aside ex debito justitiae. It does not lie in the mouth of the appellant to quarrel with the order on behalf of the Talabi family. I share the view of the learned senior counsel for the first – fourth respondents that: “It is not in the place of the Appellant to cry more than the bereaved”. Such a credo offends the inflexible position of law on the destiny of an order made against a non-party in a proceeding. Interestingly, the case-law frowns at such attitude and labels it as “a ‘complaint’ by a busy body”, see Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172 at 233, per Onnoghen, JSC (later CJN).

This brief legal anatomy on party jurisdiction, done with the aid of the law, with due reverence, exposes the poverty of the seemingly scintillating argument of learned appellant’s counsel on the point. In effect, the lower Court did not, in the least, fracture the law, when it assumed jurisdiction to hear the suit, to warrant this Court’s intervention on this facet.

The other facet of the stubborn issue appertains to the jurisdiction of the lower Court to hear the first – fourth respondents’ application of 24th April, 2009. The appellant staked his argument on the provision of Order 24 Rule 1 of the High Court Rules. The feuding parties expressed diametrically opposed contentions/interpretations on the purport of this provision in relation to the application. The incompatible fusses were/are unnecessary. The reason is not far – fetched. The provision, rightly, falls within the commodious four walls of subsidiary enactments, see Section 37 of the Interpretation Act, Cap 123, Laws of the Federation of Nigeria, 2004; Unilag v. Aigoro (1984) 15 NSCC 745; Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 34; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; G.M.O.N. & Sons Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) 143. They do not bestow jurisdiction on a Court of law. Source of jurisdiction of Courts is statutory. It is the Constitution and legislations that do. See Dada v. Ogunremi (1962) 2 SCNLR 417; State v. Onagoruwa (1992) 2 SCNJ (Pt. 1) 1; Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (Pt. 974) 619; Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393; Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69; Mainstreet Bank Capital Ltd. v. Nig RE (2018) 14 NWLR (Pt. 1640) 423; Nduul v. Wayo (supra); Okorocha v. UBA Plc (2018) 17 NWLR (Pt. 1649) 441; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564. On this score, all the dazzling arguments the parties lavished on the point are rendered idle as they come to nought. This Court will discountenance them.

Then, the appellant’s other coup de main on this limb, perhaps the casus belli, is against the lower Court’s grant of the application for amendment. It is imperative, in order to ease appreciation and lay proper foundation, to display salient features of the concept of amendment combed out from case-law authorities. Unarguably, the issue of amendment has become ubiquitous in adjudications in the Courts. It is invariably precipitated by the accepted fallibility of man in the process of writing documents. Etymologically, amendment traces its lexical paternity to the Latin verb “emendo-emendere” meaning “to cure, to add to, to correct an error”. In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saidu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in sea of authorities, see Alsthom v. Saraki (2000) 11 SCNJ I;Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yusuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2000) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (Vol. 18) 755, GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227.
There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide …or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise…’
See also C.G.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
Similarly, amendment will granted if it: ensures justice, relates to a mere misnomer; does not change the nature of the claim; does not create a new suit; will cure the defects in the proceedings; will be consistent with the testimonies of witnesses being considered on appeal or will not embarrass or surprise the opponent in the proceedings, see Oguntimeyin v. Gubere(1964) All NLR 169; Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413; Mamman v. Salaudeen (supra); Kode v. Yusuf (supra); Adetutu v. Aderohunmu (1984) 1 SCNLR 575; Gowon v. Ike-Okongwu (2003) 1 SCNJ 453; Okolo v. UBA (supra); Ehidimhen v. Musa (supra); Okafor v. Ikeanyi (1979) 3-4 SC 99/(1979) NSCC (Vol. 12) 43; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248.
One of the appellant’s major grouch, indeed his trump card on the nagging point, is that his case was not considered in granting the application. I have visited the record – the spinal cord of the appeal. The terse ruling of the lower Court resides and monopolizes pages 1889 – 1891, where IV of the huge record. I have perused it with the finery of a tooth comb. It is comprehension-friendly. I am able to find that the lower Court devoted paragraph 4 at page 1890 thereof, to the consideration of the case of the appellant. This consideration, no matter how brief, displaces/drowns the appellant’s allegation that the lower Court ignored his case. It flows that the decision is not guilty of that charge of lopsidedness leveled against it. In effect, the appellant’s contention, with due respect, has no substratum to perch and command any validity/viability. It is disabled from birth.
Another agitation by the appellant, decipherable from his submission, was that the amendment was overreaching. The purport and tentacles of overreaching were expounded by Tobi, JSC, in Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 370, in these illuminating words:
An overreaching conduct is a circumventing conduct to outwit the adverse party by cunning or artifice. It is designed to defeat the object or objective of the respondent’s case by going too far, in the sense of destroying the core or fulcrum of the respondent’s case.
See also NIWA v. SPDCN Ltd. (2008) 49 WRN 11; Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439; Yusuf v. Mobil Oil (Nig.) Plc (2019) 13 NWLR (Pt. 1689) 374.
It is deducible from the windy record, the touchstone of the appeal, that the application was necessitated by the events which occurred after the institution of the action. Its goal was to factor in the event of 2nd July, 2006 when the appellant was unjustifiably coronated and capped as the Aro of Ojora while the suit was pending. It was intended to counter/douse those facts in the appellant’s pleading. To this end, I am unable to stigmatize the application as one with the object to deflate the fulcrum of the appellant’s case. Moreover, it was granted prior to the hearing of the matter. In this regard, the appellant had the unfettered opportunity, within the firmament of amendment, to make any consequential amendment to neutralize it. These dwarf the appellant’s contention on the point.
In the twilight of the ruling, at page 1891, volume IV, of the wordy record, the lower Court found:
… it is my view that the intended amendment is not intended to overreach the Defendants and will not prejudice the Defendants if granted, the amendment being sought would not occasion injustice to the defendants.
My findings, displayed above, are in consonance with the lower Court’s. There were no incidences of overreaching and injustice which flew from the grant of the amendment to compel this Court to intervene. I endorse, in toto, the finding and, ipso facto, the grant of the amendment.
It stems from this legal exposition, that the lower Court’s finding was unimpeachable. On this premise, all the strictures, which the learned appellant’s counsel, with due deference, rained against it, pale into insignificance. It will reek of judicial sacrilege to tamper with a judicial exercise that is not injudicious or hostile to the law. In the aggregate, I have no choice than to resolve the issue one against the appellant and in favour of the first – fourth respondents.

Having dispensed with issue one, I proceed to settle issue two. The focus of the issue is plain. It decries the lower Court’s evaluation of evidence before it. Put bluntly, the appellants accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence. A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court.

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.

The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have placed the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.
To begin with, an in-depth study of the issue, amply, discloses that documentary evidence, furnished before the lower Court, form an integral part of the crux of this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka V. Okafor (2017) 11 NWLR (Pt. 1577) 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V. (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 163; Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.
One of the foremost grudges, nursed by the appellant, is that the lower Court illegitimately deployed the doctrine of lis pendis in its decision when the res was not land. The learned counsel for the first – fourth respondent conceded to that point. That is a classic exemplification of admirable advocacy that is worthy of emulation. The net effect of that undiluted admission is that the parties are consensus ad idem that the lower Court was in, deep, error when it employed the doctrine.
Incontestably, that is an error, with due respect, on the part of the lower Court. In the mind of the law, an error is “something done by a person which is incorrect or which should not have been done” Ugwu v. Ararume (2007) 12 NWLR (pt. 1048) 357 at 513, per Muhammad JSC. Human beings are prone to mistakes on the footing of fallibility. This has receive judicial recognition, see Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250.
Nevertheless, the appellant has merely scored a barren victory in the error. The reason is not far-fetched. It is trite, that not every error or mistake in judgment that vitiates it. It must be material and has to occasion a miscarriage of justice, see Diamond Bank Ltd. v. P.I.C. Ltd. (2009 18 NWLR (Pt. 1172) 67; Ontario Oil Gas Ltd v. FRN (2018) 13 NWLR (Pt. 1636) 197; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330. This inelastic hallowed principle of law owes its ancestry to the Latin maxim. Diminimis non curat lex-. the law does not concern itself with trifles, see Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449.
The error committed by the lower Court is, to my mind, an infinitesimal one. Perhaps, the lower Court was propelled/stimulated to invite the doctrine to condemn the level of self-help perpetrated by the appellant in a bid to climb/ascend the vacant throne of Aro of Ojora during the pendency of the suit. Self-help midwifes and breeds anarchy which is an anathema to democracy and civilized society. It is a quintessence of contempt ex facie curiae. It erodes the concept of status quo; a fortiori in a matter that is sub judice. It foists fait accompli on a Court of law. No Judex, in the world, will embrace and condone self-help – a primitive act that seeks to dethrone justice, man’s greatest interest in the universe, from its Olympian status in adjudication. It self-help, deserves to be censured and crucified in the temple of justice! The error therefore is impotent to castrate/ruin the lower Court’s unimpeachable finding, id est, that the appellant’s unlawful installation, as the Aro of Ijora, was “with the sole aim of stealing a match on the claimants”. In all, the negligibility of the minute error makes mincemeat of the learned appellant’s counsel’s attractive argument on the point.
The other complaint, weaved by the appellant was the first – fourth respondents’ failure to plead the name of Onbiya as one of the children of Ejimosu – the first Aro of Ojora. I have given a global examination to the first – fourth respondents’ 58 – paragraph 2nd amended statement of claim, which monopolize pages 922 – 929, volume III of the expansive record, as mandated by law, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67. It is rebellious to ambiguity. Paragraphs 17 and 18 of it amply discloses facts indicating the name of Onbiya as one of the descendants of Ejimosu. The import of that assertion is clear. It deflates the appellant’s contention and renders it a footnote. The concrete evidence, grounded on those pleadings, are not orphans as they own factual legal parentage.
In due allegiance to the dictate of the law, I have, again, consulted the record, the spinal cord of the appeal, particularly at the residence of the lower Court’s 65 – page judgment which occupies pages 1976 -2037, volume IV, of the prolix record. Admirably, it is submissive to easy appreciation. The lower Court dedicated pages 2014 – 2036 thereof to the evaluation of the evidence, both parol and documentary evidence, presented by the contending parties to it. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice.

It attached deserving probative weight to the respective evidence offered by the parties. It found that the first – fourth respondents’ pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the first – fourth respondents’, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the first – fourth respondents proved their case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399.
The appellant took a swipe at the lower Court’s evaluation of evidence in respect of his counter-claim. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim,” see Maobison Inter-Link Ltd. v. UT.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC.
It is settled law, indeed properly propagated in our corpus juris, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the Court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsetik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. The confirmation of the lower Court’s finding on the main claim, which I find no extenuating circumstances to disturb, to all intents and purposes, makes a mockery of the potency of the derision.
That is not all. The appellant’s case was erected on 1975 Solanke Tribunal of Enquiry Proceedings which was tendered as Exhibit D20. The document had the target to perforate the first – fourth respondents’ claim. It was critical to the appellant’s case. Incidentally, the first – fourth respondents greeted its admission with a stiff opposition. The lower Court found in their favour and declared the Exhibit D20 inadmissible and expelled it from the suit. The appellant, in his infinite wisdom, did not appeal against that expunction of Exhibit D20. The appellant, de jure, conceded to its expulsion. In the eyes of the law, a Court finding/decision that is not appeal against is deemed binding and acceptable to the parties, see Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211; Enterprise Bank Ltd v. Aroso (2014) 3 (Pt. 1394) 256; Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437; Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Poroye v. Makarfi (2018) 1 NWLR (P. 1599) 91; Heritage Bank Ltd. v. Bentworth Fin. (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420; Abdurahman v. Thomas (2019) 12 NWLR (Pt. 1685) 107; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189. The neglect to challenge the jettison of Exhibit D20, upon which his case was built, was a costly failure. It constitutes a serious blight on the slim chances of success of his counter-claim.
Again, the appellant accused the lower Court of dereliction of duty in the sense that it failed to examine the evidence on oath of Chief Fatai Oyeyinka Aromire which was in its file. The deposition is located at pages 906 and 907, Volume III of the large record. I am at one with the appellant’s counsel that a Court is entitled to look at documents in its file, see Akeredolu v. Abraham (2018) 10 NWLR (Pt. 1628) 510; Jimoh v. Min., FCT (2019) 5 NWLR (Pt. 1664) 45; NNPC v. Roven Shipping Ltd. (supra). Nevertheless, the appellant merely scored a barren victory on the concurrence. The deposition was never adopted by the deponent. In legal parlance, the deposition would only metamorphose/transmute into evidence-in-chief on its adoption by a witness, see G.E Int’l Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427. In essence, the deposition, until that evidential transfiguration, was merely lying fallow in the lower Court’s file. It would have smacked of perversity for the lower Court to rely on it in that unusable state. The lower Court did not treat the procedural law with contempt when it ignored the deposition. This was another blot on the counter-claim. Besides, the lower Court declared the respondent victorious in its main claim. I have confirmed the declaration. The affirmed proclamation constitutes a serious coup de grace in the appellant’s view point on the issue. The reason is obvious. In the sight of the law, “The success of the main claim may after all render useless the counter-claim…”, see Maobison Inter-Link Ltd. V. U.T.C. (Nig) Plc (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC. This is a stellar example where the success of the main claim disables a counter –claim. This is another dent which demolishes the appellant’s stance on the proof of his counter-claim.
The appellant branded the finding as perverse. Since perversion is the cynosure of the point, it is germane to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onykwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.
Now, the lower Court’s judgment, sought to be impugned and ostracized, is pasted at pages 1976 – 2037, Volume IV of the gargantuan record: the bedrock of the appeal. I have subjected it to a clinical examination. I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision adumbrated above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is marooned in the ocean of perversity. The judgment of the lower Court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilized the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity leveled against it by the appellant.
In the light of this juridical survey, conducted in due consultation and obeisance to the law, the lower Court did not transgress the law to make its finding guilty of the allegation/accusation of perfunctory evaluation of evidence leveled against it by the appellant. The lower Court’s finding is unassailable. On this score, I dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on proof of the claim and counter-claim, on the underserved altar of improper evaluation of evidence. In the end, I will not hesitate to resolve the issue two against the appellant and in favour of the first – fourth respondents.

On the whole, having resolved the two issues against the appellant, the fate of the appeal is obvious. It is devoid of any ray/grain of merit and deserves the visitation of dismissal. Consequently, dismiss the appeal. I affirm the judgment of the lower Court delivered on 29th June, 2015. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I was privileged to read in the draft form, the leading judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA., wherein he found the appeal as lacking in merit, and dismissed it.

The leading judgment which I am in agreement with, exhaustively and clinically considered the issues which the Appellant set down for determination and I really do not have anything of value to add as the leading judgment treated all the issues which were raised by the Appellant in order to get the judgment of the lower Court set aside.

I abide with the generous discretion of my learned brother, Obande Festus Ogbuinya, JCA, by the consequential order he made that the parties shall bear respective costs in the “prosecution and defence of the doomed appeal”.
Appeal is dismissed.

BALKISU BELLO ALIYU, J.C.A.: My learned brother OBANDE FESTUS OGBUINYA, JCA has availed me with the leading judgment just read before today.

Having perused the record of appeal and the learned counsel respective briefs of argument, I am in total agreement with the reasoning and conclusion reached in the leading Judgment, which I adopt as mine.

I too find no merit in this appeal and I dismiss it. I abide by the order of no cost made in the leading judgment. Appeal dismissed.

Appearances:

K.O. Bakare, Esq. For Appellant(s)

C.O.I. Joseph, SAN with him, Cyril Ogbekene, Esq., Akin Akinrinade, Esq., Olawale Okunola, Esq., and Michael Olaniyi, Esq. for the 1st-4th Respondents

No legal representation for the 5th Respondent For Respondent(s)