Chief Edmund I. Akaninwo & Ors. V. Chief O. N. Nsirim & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

In the High Court of Justice of Rivers State sitting at Port-Harcourt, the Plaintiffs for themselves and on behalf of the members of Rumueme Community Village Council instituted their action against the defendants who were required to defend the action for themselves and on behalf of the other members of the Ogbakor Rumueme Organisation and asked for the following declaratory and injunctive reliefs in paragraph 47 of their amended statement of claim as follows –

“(a.) A declaration that the Defendants are not members of the Rumueme Community Village Council in the Port Harcourt Local Government Area of the Rivers State but the descendants of Apara resident in Rumueme, Port Harcourt.

(b.) Perpetual injunction restraining the defendants, their agents, servants and privies from holding themselves out as, or claiming to be, or parading themselves as members of the said Rumueme Community Village Council.”

The case of the plaintiffs was heard on their amended statement of claim and the defendants original statement of defence after the defendants’ application to also amend their statement of defence was refused by the learned trial judge. In the course of the hearing of the case, the plaintiffs called two witnesses in support of their claim while the defendants in their defence called three witnesses. However at the conclusion of the evidence in chief of the plaintiffs’ second witness and the cross-examination of the witness by the learned Counsel to the defendants, the defendants filed their application for leave of the trial Count to amend their statement of defence. This application was heard and refused by the learned trial judge before the hearing of the case was concluded. The learned trial judge in his judgment delivered on 3rd July, 1987, granted the two reliefs sought by the plaintiffs at pages 245 – 246 of the record of this appeal where the learned trial judge said –

“I am convinced from the facts and circumstances I have so far examined, to hold that the plaintiffs have proved their case on the preponderance of evidence and are therefore entitled to the reliefs they (sic) seek.

I am convinced that the said reliefs if granted will have far reaching consequences to make for peace in Rumueme where both parties will remain to enjoy. I therefore enter judgment in favour of the plaintiffs by granting them the reliefs sought as follows:

(1) I hereby declare that the defendants are not members of the Rumueme Community Village Council, otherwise – known as Rumueme Village Council in the Port Harcourt Local “Government Area of Rivers State, but the descendants of Apara resident in Rumueme, Port Harcourt.

(2.) I hereby restrain the defendants, their agents, servants and privies perpetually from holding themselves as members of the said Rumueme Community Village Council.”

All the Defendants who were aggrieved by the judgment of the trial High Court, appealed to the Court of Appeal against it. In addition, the defendants also sought and were granted leave by the Court of Appeal to appeal against the interlocutory ruling of the trial High Court refusing their application to amend their statement of defence. Upon hearing both defendants’ appeals, the Court of Appeal in its judgment delivered on 15th July, 1997, dismissed the appeals and affirmed the decision of the trial Court in both its ruling and Judgment. Still dissatisfied with the decision of the Court of Appeal against them, the defendants are now on a further and final appeal to this Court.

Before the appeal came up for hearing, the Defendants who are now the appellants in this Court have filed their appellants’ brief of argument and the appellants’ reply brief which were duly adopted by their learned Counsel. The plaintiffs who are now respondents in this Court also duly filed their respondents’ brief of argument which was deemed adopted by them in their absence and the absence of their learned Counsel on the day the appeal was heard in accordance with Order 6 Rule 8(6) of the Rules of this Court.

In the appellants’ brief of argument, three issues were identified for the determination of the appeal. The issues are

1. Were the learned Justices of the Court of Appeal right when they upheld the ruling of the learned trial judge dismissing the Defendants application for amendment at a stage when the Plaintiffs were yet to close their case If answered in the negative has the failure to grant the defendants’ application for amendment occasioned any miscarriage of justice
2. Were the learned Justices of the Court of Appeal right when they held that there was nothing inequitable in granting the reliefs sought by the Plaintiffs
3. Were the learned Justices of the Court of Appeal right when they held that exhibits ‘A’ & ‘B’ were legally admissible in instant proceedings and that they constituted admissions against the defendants

In the respondent’s brief of argument however, after attacking issue number two in the appellants’ brief that the issue does not arise from the decision of the Court below by way of a preliminary objection, the Respondents proceeded to formulate the following two issues for the determination.

1. Have the defendants/appellants shown any ground on which this appellate Court should interfere with the discretion of the trial judge as affirmed by the Court below in refusing their application to amend their statement of defence at that stage of the proceedings where the Respondents have called their last witness.
2. Whether exhibits ‘A’ and ‘B’ were admissible in evidence; and if not, whether their admission as exhibits occasioned a miscarriage of justice.

Although the respondents in their respondents’ brief have raised preliminary objection to the second issue. In the Appellants’ brief of argument, and taking into consideration that that issue relates to the grounds of appeal arising from the judgment of the trial Court on their substantive case; I shall first treat and dispose of issue number one in both the appellants’ and the respondents’ briefs of argument arising from the interlocutory ruling of the trial Court refusing the defendants’ application to amend their statement of defence. I shall then come back to the issues arising from the judgment of the trial Court affirmed by the Court below on the substantive claims of the respondents as the case may be.