MAIN JUDGMENT

EJEMBI EKO, J.C.A.: (Delivering the Leading Judgment):

This appeal, against the purported judgment of Bayelsa State High court delivered on 27th June, 2007 in the suit no YHC/13/99, was commenced by the notice of appeal filed on 24th July, 2007. The correct and proper suit number on the writ and the Judgment is BHC/13/99. The notice of appeal appears to be against a non-existent suit and the judgment therein. That would make the appeal to be speculative and incompetent. The notice of appeal was settled and signed by ""B.F. Omidina & Co", appellant's solicitors of 11/12 Peter Odili Road, Port Harcourt. There is no evidence that B.F. Omidina & Co is a name of a legal practitioner registered in the Supreme Court to practice law in Nigeria under the Legal Practitioners Act.

At the hearing of the appeal on 29th January, 2014 we drew the attention of M.S. Agwu, appellant's counsel, to the fact that his notice of appeal was signed neither by the appellant himself nor by any known legal practitioner, registered to practice law under the Legal Practitioner's Act. Mr. Agwu, conceded that the notice of appeal was signed by B.F. Omidina & Co, a firm of solicitors. Counsel was, however, quick to add that upon amending the notice of appeal to introduce further grounds of appeal to paragraph 3 of the notice of appeal they filed an amended notice of appeal. Counsel admitted that it was only paragraph 3 of the notice of appeal they amended to introduce further or additional grounds of appeal.

Apart from the original notice of appeal being "signed" by a firm of solicitors, as appellant's counsel, the amended notice of appeal had unilaterally amended paragraph 4 of the original notice of appeal. Mr. Agwu, upon comparing paragraphs 4 respectively in the original notice of appeal and the amended notice of appeal concedes this fact. This amendment, done without leave of court, offends Order 6 Rule 15 of the Court of Appeal Rules, 2011, in pari material with Order 6 Rule 15 of 2007 Rules of this Court extant at the time the amended notice of appeal was purportedly deemed filed on 17th February, 2011. I need not belabour the issue: that a party cannot unilaterally amend the process before the court without leave of court. As stated by Ogundare, JSC in ENIGBOKAN v. AMERICAN INT'L INSURANCE CO (NIG) LTD (1994) 6 NWLR [pt.348] 1, an amendment speaks from the original date the process was filed. And because the law, on the principle of audi alteram partem, emphasizes that parties must always know a forehand the case they are to meet, there must be certainty of every process before the court. No party, for purposes of certainty, is therefore allowed to unilaterally amend his process without leave of court. In granting amendment upon application, the court must satisfy itself why the indulgence should be granted: See B.O. TAIWO OSINUPEBE v. QUADRI SAKA SAIBU (1982) 7 SC (Reprint) 49. The court insists on the certainty and orderliness in the processes before it hence it does not grant leave to amend process as a matter of course. The litigant proposing the amendment is enjoined to show why the amendment must be granted. He cannot therefore amend a process before the court without the participation of the court and his adversary.

The unilateral amendment of the paragraph 4 of the original notice of appeal by the appellant, as done in the amended notice of appeal purportedly deemed filed on 17th February, 2011, renders incompetent the amended notice of appeal. On the said 17th February, 2011 leave was only granted to the appellant to introduce 8 additional grounds of appeal, numbering 6-13, to the existing 5 original grounds of appeal in paragraph 3 of the original notice of appeal, and no more. No leave was granted to the appellant to alter paragraph 4 of the original notice of appeal and also the signature on the original notice of appeal.

The original notice of appeal was on originating process. It was signed by "B.F. Omidina & Co", which is not a legal practitioner, registered to practice under the Legal Practitioners Act. This case is on all fours with OKAFOR v. NWEKE (2007) 10 NWLR [pt.1043] 521 where the Supreme Court held that a process singed by a firm of solicitors, not being a registered legal practitioner qualified to practice law in Nigeria, is incompetent. See also OGUNDELE & ANR. v. AGIRI & ANR (2009) 18 NWLR [pt.1173] 219; UNITY BANK PLC v. DENCLAG LTD & ANR (2012) LPELR 9729 (SC) where the Supreme Court cited with approval the rule in OKAFOR v. NWEKE (supra).

The notice of appeal at pages 222-225 of the Record, filed on 24th July, 2007, which purports to originate this appeal, is incompetent. It is a process that was invalid and a nullity ab initio, and as such it did not exist in law to be amended as it was purportedly done on 17th February, 2011. The purported amended notice of appeal is merely placing something upon a nothing. It goes to naught, and it cannot stand, as Lord Denning MR would put it in UAC LTD v. MACFOY (1961) 3 ALL E.R. 1160. Since there was nothing to amend, the leave granted for the said amendment of that invalid notice of appeal must have been done per incuriam.

This appeal, my Lords, is incompetent. It is accordingly struck out.

Let me consider the merits of the appeal, as I am enjoined to, as an intermediate court in case I may be wrong in striking out the appeal for being incompetent.

Appellant claimed to have filed a total of 13 grounds of appeal. Only two issues were raised by the appellant in the Appellant's Brief of Argument for the determination. They are:

1.       Whether the learned trial court was justified in resorting to the demeanour of witnesses and comparing their oral testimony for the resolution of the conflict in the traditional history of the parties in this case rather than the rule established in KOJO v. BONSIE (1975) 1 WLR 1223 (Distilled from grounds 5, 8, 9 and 10 of the grounds of appeal).

2.       Whether the learned trial court properly evaluated the evidence of traditional history of the parties in this case before arriving at its decision preferring the Respondents' traditional history to that of the Appellant, if not, whether upon the preponderance of evidence the Plaintiff/Appellant is not entitled to judgment? [Distilled from grounds 1, 2, 3, 4, 6, 7, 11, 12 and 13 of the grounds of appeal].

In essence, these two issues formulated by the Appellant question the findings of fact made by the trial court. In the first place, issue 1 was formulated on a wrong premise. I have read the entire judgment appealed, which is found at pages 204-217 of the Records of Appeal. The trial court, nowhere in the judgment resorted to the demeanour of witnesses to resolve any conflicting evidence of traditional history. Issue 1, not directly flowing from or related to the ratio decidendi of the judgment of the trial court appealed is a nonstarter.

The summary of the decision of the trial court is as follows:

i.        It is fundamental that the party who relies on native law/custom for his claim must strictly prove it; and that custom is not proved by a number of witnesses. It could be proved by a sole witness who is credible.

ii.       It is necessary or desirable that traditional evidence be corroborated because no one can claim an exclusive knowledge of a long standing tradition said to be prevailing in his area.

iii.      PW.1's evidence needed to be corroborated.

iv.      The Plaintiff/PW.1's claim that he is a descendant of Ovo the founder of Akakumama through Ibokolo said to be the son of Eperegha, who was begotten by Ovo, was not proved. On the other hand, the plaintiff admitted that 1st Defendant was a descendant of Daufa, the son of Akinam is a descendant of Ovo.

v.       The evidence of DW.1, corroborated by DW.2, that when DW.1's father died as king of Akakumama the Ibokolo family were not allowed to perform his burial rites was not challenged or contradicted. DW.2 is a chief and descendant of Ovo native of Akakumama in oworoma.

vi.      The PW.2 is not a credible witness whose evidence has any probative value. She gave inconsistent evidence.

vii.     Plaintiff's claim that the Iguade burial materials, which would have confirmed his superiority over the Defendants in the family, are in the custody of the 1st Defendant who forcefully broke into his house to collect it, is unbelievable. If indeed the 1st Defendant had broken into the plaintiff's house and forcefully removed the said burial materials "yet there was no formal report against the Defendants to the police or the Chiefs".

viii.    The plaintiff's evidence is at variance with his pleadings. The attempt by the plaintiff's counsel to make up this deficit in his address can not avail the plaintiff. Address of counsel cannot be substitute or make up for the evidence not given at the trial.

ix.      Though counsel on both sides agree that the documents tendered by the plaintiff are proofs of possession/ownership, the documents do not assist the plaintiff as the traditional history of the Defendants was more believable than the plaintiff's traditional history.

These are the main reasons the trial court gave for dismissing the Plaintiff/Appellant's case.

It is submitted for the appellant that the trial court had erroneously believed the traditional history given by the respondents without applying the proper test established by law for proper evaluation of evidence of traditional history. The appellant did not itemize the evidence of the appellant erroneously disbelieved or the evidence of traditional history of the respondents erroneously accepted by the trial court.

As a rule, the appeal court will not lightly interfere with findings of fact made by the trial court upon proper evaluation. The only exceptions to this rule, as the appellant did point out in his brief, are from decided authorities: where the findings of fact are unsound, perverse and contrary to the case pleaded by the parties; where the trial court failed to take full advantage of the opportunity of watching and hearing the witnesses testify. In such instances the appeal court may intervene and set aside the findings of facts. These principles are well re-stated in the cases of EBBA v. OGODO (1984) 4 SC 84 at 102-104; ATTA v. EZEANI (2000) 11 NWLR [pt.678] 363 at 378; MAIGORO v. BASHER (2000) 11 NWLR [pt.679] 453 at 467; ELEWUJU v. ONISAODU (2000) 3 NWLR [pt.647] 95 at 116,cited by appellant's counsel.

On what bases do I now disturb the findings of fact made in this case by the trial court upon proper evaluation of evidence? None.

Take for instance the documents tendered by the Plaintiff/Appellant, particularly Exhibits 'A' and 'B', which the court found did not support the plaintiff's case. At page 164 of the Record the plaintiff, as PW.1, was asked if the land Agip occupies today belongs to Ibokolo family alone and if it is not only Ibokolo that Agip recognizes as landlords? The PW.1 says that is true and added that Ibokolo family has boundaries with other families. PW.1 named the families as descendants of Ebede and affirmed that Ibokolo did not give these other families their respective lands. This is clearly an admission against interest. The trial court found inter alia that the plaintiff's evidence is at variance with his pleadings. I agree entirely.

At page 160 of the Record the PW.1 admitted that Ibokolo, through whom he founded the claims against the Defendants, "was not a king in Akakumama" or Dorgu Ewoama. This is against the general trend or train of the plaintiff's claim that the founder of Dorgu Ewoama or Akakumama is regarded as a king from whom all kingship rights devolve unto his descendants. See paragraph 13 amended statement of claim, for example.

The parties joined issues on whether Ibokolo was in fact a son of Eperegha. The Plaintiff/Appellant claims all the rights against the respondents on the basis that he is a descendant of the Ovo Okoroma, the founder of Akakumama. This Ovo was said to begat Akomu and Eperegha. The respondents, as the defendants, are undisputed descendants of Akomu, the brother of Eperegha. The plaintiff maintained that Ibokolo was the son of Eperegha. The defendants vehemently deny this assertion in their joint statement of Defence. In paragraphs 7, 8 and 9 of the Statement of Defence the defendants assert that Ibokolo was neither a son nor blood relation of Eperegha. They maintained in their pleadings and evidence that the said Ibokolo was an indigene of Swali. The plaintiff filed no reply to the statement of Defence on this. The part of the unchallenged defence evidence on this, which the trial court at page 216 of the Record believed in its judgment, goes thus at page 198 of the Record.

Q. Has the plaintiff any link with Akinam/Ebede family whatsoever?

A. The plaintiff has no blood link with Akinam/Ebede family except that Ibokolo his ancestor was married to Eto Akinam, Akinam's judgment gift and had the grand-parents of the plaintiff. Their children are: Isam (male), Oweifa (male) Ebune (female) and Ogbolo (female) [As if to corroborate DW.2 on this the PW.1 at page 164 of the Record says Ibokolo did not marry Akinam's daughter].

Q. Ibokolo the ancestor of the plaintiff had any link with Ovo, the founder of Akakumama?

A. He had no blood link with Ovo but he stayed with Ovo's son, Eperegha.

Q. The plaintiff says that Eperegha was the father of Ibokolo.

A. No. That was why when my father, king Donka S. Ovo the 2nd of Akakumama the past king of Akakumama, died Ibokolo family came to bury him as one of his grandsons, the family (Ovo) refused, telling them that if they wanted to bury king Ovo II of Akakumama as a biological son they would not be permitted.

Q. Why did they refuse?

A. Because the Ovo family knew that Ibokolo was not a biological grandson of Ovo.

The same witness, DW.2, concluded his evidence-in-chief at page 199 of the Record with the statement that Ibokolo's grave was not in Dorgu Ewoama. These should have been very serious and scathing attacks on the integrity of the plaintiff's case. In the cross-examination of DW.2 at pages 199-201 there was not even a feeble effort made to challenge the DW.2 on these scathing pieces of evidence. Facts not disputed are taken as established. They are entitled to be believed and relied upon, and the trial court rightly, at page 216 of the Record, relied on these pieces of evidence coming from the DW.2, as well as DW.1, on this issue. The finding of fact based on this cannot be faulted. It is unassailable. It is supported by available and credible evidence. This Court, on the principle of law in EBBA v. OGODO (supra) and other authorities in that stead, cannot, and will not, therefore interfere with the finding of fact.

The source of the evidence the PW.2 came to court with was her grandmother who lived in Otiokpoti, not in Dorgu Ewoama. In-chief the Pw.2 claimed she never lived in Dorgu Ewoama or Akakumama herself. Pw.2 gave the tenous history this way –

Eperegha married my grandmother's cousin and came to Akakumama and had Ibokolo there and were there until crisis occurred and there was war so Ibokolo moved from there to found Dorgu Ewoama and settled there.

PW.2 lives in Port Harcourt; she initially denied her ancestral roots at Swali. The defendants say that the Plaintiff/Appellant is from Swali. The rigorous, but effective, cross-examination of PW.2 later unveiled and exposed PW.2 as an indigene of Swali. PW.2 seemed to have masqueraded as a knowledgeable and an independent witness for her evidence of traditional history. She vehemently denied that she was an enstranged wife of 1st defendant's brother. Under cross-examination at page 173 of the Record the false or pseudo fortress from which PW.2 came to testify, supposedly, as a credible witness collapsed and gave way. She admitted that her "marriage to the defendants has broken up [and so she was] angry with their family". The liar that the PW.2 was, with some motive to tell lies, definitely did not make her a truthful or credible witness. Evidence of traditional history may be an exception to the rule against hearsay evidence. The witness who bears the evidence of traditional history must, himself, be a truthful, honest and credible witness in order that the hearsay-upon-hearsay dubbed as evidence of traditional history coming from his mouth may be regarded as capable of some reliability. I think, and I so hold, that the trial court was right in disbelieving the PW.2. Contrary to the submissions of the appellant neither the PW.2 nor the PW.1 were disbelieved on their respective demeanour. They were disbelieved because the quality of the evidence they rendered could not match the quality of the evidence of the defendants.

On the merits, there is no substance in the appeal. And I would have entered an order dismissing the appeal and affirming the judgment delivered on 27th June, 2007 in the suit no BHC/13/99 by the Bayelsa State High Court. As I had held that the appeal is incompetent the appropriate order to make is an order striking out the appeal. The appeal is hereby struck out. In any case I repeat: there is no appeal against the judgment in suit no BHC/13/99 delivered on 27th July, 2007. The judgment the appellant purportedly appealed is the judgment in suit no YHC/13/99 of 27th July, 2007.

Costs at N100,000.00 are hereby awarded to the respondents against the appellant.

MOHAMMED LADAN TSAMIYA, J.C.A.:

I have been privileged to read in advance the judgment just delivered by learned brother EJEMBI EKO J.C.A. and I entirely agree with the reasons given by him for striking out this appeal, I will also struck out this appeal. Costs ordered in the sum of N100,000.00 in favour of respondents and against the appellant.

MODUPE FASANMI, J.C.A.:

I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO, J.C.A. just delivered.

The notice of appeal at pages 222-225 of the record filed on 24th July 2007 which purports to originate this appeal is invalid and a nullity ab initio. It does not exist in law to be amended as it was purportedly done on 17th February 2011. The appeal is incompetent and it is accordingly struck out.

I agree entirely with the reasoning and conclusion arrived thereat. I abide by the consequential orders contained therein.