Chief Rufus Omotosho & Ors. V. Ife North Local Government (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the decision of High Court of Justice, Osun State, delivered on 15th June, 2004 by G. E. Oladoke (J) in which the plaintiffs but now appellants claim was dismissed. Being dissatisfied with the decision, the appellants filed within time, their notice of appeal containing seven (7) grounds from which they have raised 2 issues for determination. They read thus:-
“1. Whether the court was right in dismissing plaintiffs claim when faced with the unchallenged evidence of the plaintiff as the case was solely based on trespass, possession has not been proved satisfactorily by the plaintiff as to entitle them to have judgment.
- Whether the court was right in hobbling that the plaintiffs had to prove all the five points listed in the case of IDUNDUN VS. AKUMAGBA (1976) 9 & 10 SC when in law, such points are not cumulative and in any event, the claim is basically and essentially was trespass when possession had been proved.”
In opposing the appeal, learned counsel for the respondent has raised a preliminary objection on the ground that the notice of appeal filed by the appellants, failed to comply with Order 3 Rule 2 of the Court of Appeal Rules 2002, and that the grounds of appeal attacking the decision of the trial court are of mixed law and fact, and that the leave of the lower court or this appellate court have not been sought and obtained as required by section 242 (1) of the Constitution, 1999. Respondent’s counsel is of the view that the appellants’ grounds of appeal merely alleged error in law but failed to state particulars of and errors made by the trial judge. The respondent has contended that failure of the appellants to comply with Order 3 Rule 2 (2) of the Rules of this court, 2002 has rendered the Notice of Appeal incompetent and that it should be struck out and the appeal should be dismissed. Counsel referred to and relied on the authority of cases in IWUOCHA VS. NIPOST (2003) 4 SCNJ 258, 262; SHORMU VS. AFRIBANK (2002) 6 SCNJ 454, 457; OSASONA VS. AJAYI (2004) 5 SCNJ, 82, 85; AJAUOKORO (1991) 7 NWLR (pt.203) 260, 273.
By the rules of this court, once a reasonable notice of preliminary objection is raised, and argued in respondent’s brief, it is necessarily to determine the objection before moving to the substantive appeal. In the instant appeal, the respondent had filed his notice of preliminary objection and is contained in paragraphs 4.0.1 – 4.0.2 on page 3 of the brief.
Learned counsel for the appellant has filed a reply brief in respond to the preliminary objection. Reply brief was filed on 13-9-07.
The appellants’ notice of appeal is contained at page 20 of the record. As stated by the respondent, appellant’s grounds 2, 3, 4 and 5 are merely that “the trial court erred in law,” without particulars of the error made by the trial court on which the appellants are complaining against.
The notice of appeal and the briefs of arguments were filed under the Rules of this Court 2002; and Order 3 Rule 2 (2) of this court, made it clear that –
“if the grounds of appeal allege misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.”
The underlined words are mandatory as “shall” is not only obligatory but mandatory. It is true that the essence of particulars as the name implies in Order 3 Rule 2 (2), is to particularize in specific language, the grounds of appeal and the errors of law alleged to have been committed by the trial judge. Particulars in a ground of appeal, are specifically intended to elucidate and state the reasons if any for the complaint in each particular ground. By stating particulars, the respondent is not taken by surprise in the appeal matter, and the appellate court will also appreciate the appellants’ complaint by looking at the specific decision where the trial judge erred if any. In this appeal, appellants have failed to state the particulars of error said to have been committed by the lower court. This failure has occasioned grounds 2, 3, 4, and 6 incompetent, and are thereby struck out. The remaining appellants grounds 1 and 5 read as follows:-
“1. The judgment is against the weight of evidence.
- The lower court has unwittingly being proving the case of the defendant and this has led to a miscarriage of justice.”
It is trite law that, even one valid ground of appeal, can sustain an appeal. See ABUBAKAR VS. YAR’ADUA (2009) 5 WRN 1, 118. The appeal will therefore be heard in respect of grounds 1 and 5 from which the appellant has formulated two issues for determination. It is not unusual for an appellant to file an omnibus ground of appeal as done by the appellants in the instant appeal. A ground of appeal which complains that the judgment appealed against is against the weight of evidence, is called the omnibus ground and is also called a general ground of appeal in either civil or criminal appeal. In civil appeal, the omnibus ground is postulating that there is no evidence which, if accepted, would support the findings of the trial court or the inference which is made. It always has to do with evidence led and evaluation thereof by the trial court. Moreover, an omnibus ground of appeal implies that the decision of the trial judge cannot be supported by the weight of evidence if any adduced by the successful party, namely, the respondent, or that the trial court wrongly accepted evidence or the inference it drew or conclusion it reached and based on the accepted evidence cannot be justified. It also implies that there is no evidence which, if accepted would support the findings of the trial court. See OSOLU v. OSOLU (2003) 11 NWLR (pt. 832) 608.LAGGA VS. SARHUNA (2009) 16 NWLR (pt. 1114) 427 at 453 and 481.
In the instant appeal, the proceedings was entirely, a solo evidence on the plaintiff/appellant because the present respondent did not participate at the trial. At page 16 of the record, learned trial judge in his judgment has clearly stated that –
“going by the record in file, precisely the affidavit of proof of service……service of the writ of summons and the statement of claim was effected on one Mr. Kehinde Alabi, a representative of the defendant on 15th July, 2003 when the defendant failed or refused to file memorandum of appearance and before, the plaintiffs brought an application for an order to set the case down for hearing……. On 2nd September, 2003 the said application was granted….. ”
From the above facts in absence of the defendant but now respondent, it was only the appellants that testified to proof their case, and therefore the only evidence on which the trial court had the duty to scrutinize and weigh, is the evidence adduced by the appellants. In a normal two party trial, where both sides have adduced evidence, a judge before whom evidence is adduced comes to a decision as to which evidence he believes or accepts and which evidence he rejects. That means he should first of all put the totality of the testimony of both parties on the imaginary scale, and then see which is heavier and not by the number of witnesses called by each party, but by the quality or the probative value of the evidence of the witnesses. On principle, this is what is called weight of evidence on the balance of probabilities. See OSOLU v. OSOLU (supra).
In the instant appeal as earlier stated above, only the appellants called a single witness to testify. He is 2nd plaintiff/appellant, Prince Jacob O. Ejilakin, who said in his evidence, that he instituted the action on behalf of Ogunjumo and Ogungbade family. I have gone through his evidence at pages 14 and 15 of the record. His evidence is very shallow in the sense that, he merely stated that, himself and his brother, namely Rufus Omotosho are plaintiffs and their action is on behalf of the family of Ogunjumo and Ogungbade. That they have not been disturbed of the ownership of the land in dispute and that the respondent unlawfully, without their notice, trespassed on the land. That the appellants protested the act of trespass by going to Oba Apetu but all to no effect. That the land had not been acquired by anyone. He said he knew the land and named neighboring land owners. The sole witness concluded his evidence by urging the court to (a) remove the respondent building on their purported family land;(b) to pay N2,000,000.00(Two Million Naira) as damages for the trespass and (c) and to inform the respondent Local Government, not to enter the land again. From the above shallow evidence of the plaintiffs/appellants, the learned trial judge properly evaluated the totality of same and found that the plaintiffs should rely on the strength of their case and not on the absence of the defence of the would be respondent. It is well settled principle of law that a case cannot stand on nothing and win. The fact that the respondent Local Government was not in the court nor put in defence is not a sufficient reason for the appellant not to prove their case. All that the appellants should have done at the trial court was to establish their true act of ownership of the land and also actual possession. These two pieces of evidence could be established by traditional history evidence of their root of title. The appellants did not tender by way of evidence, a true survey plan of the land in dispute by calling a qualified licensed surveyor who should have made the plan. The appellants could not again establish authentic documents of title, or proof of possession of adjacent land in circumstances to convince the trial judge that they in fact owned the land in dispute.
In civil cases, where a party has effectively testified by adducing uncontradicted, uncontraverted and unchallenged evidence in support of his pleadings, the trial judge will then scrutinize and look for the relevance of the case before it can rely on the uncontradicted, uncontroverted and unchallenged evidence and then give judgment on that evidence to that party. See the cases of AYINKE VS. LAWAL (1994) 7 NWLR (pt. 356) 263, 275, NWOGO VS. NJOKU (1990) 3 NWLR (pt. 140) 570. In the instant appeal, the trial court had properly considered the only evidence adduced by the 2nd appellant and found that, the totality of the evidence was not sufficient to give judgment in favour of the plaintiffs but now appellants.
I have carefully perused the pleadings of the appellants as same is found on pages 3 – 4 of the record. The only relevant but weak pleadings are the paragraphs as follows:-
“2. This family had for several years lived on the land before the advent of the British settlement in Nigeria.
- The family land is situate at JAGUN’S COMPOUND, SOOKO, IPETUMODU and had been there without any interference from anybody or persons.
- Very recently, it was noticed that Ife North Local Government trespassed on the family land and started erecting building thereon.
- The defendant has not acquired the place, neither has any compensation been paid.
- The land is bounded as follows:-
(1) Adeyemi’s building
(2) Biare Lojes Building.
(3) Sooko Road
(4) Plaintiff’s land.
- The plaintiffs deposited two thousand blocks on the land which had been utilized by the defendant herein leaving about five hundred unused.”
With due consideration of the appellants pleadings at the lower court, there is no evidence to support their paragraph 1 quoted above “that their family lived for several years on the land before “the advent of British settlement in Nigeria.” Infact the statement is so vague and can mean so many things. In paragraph 2, there is no evidence to establish that the family land had not been interfered by anybody or persons, and same applies to the pleadings in paragraphs seven and ten. The appellants did not call Mr. Adeyemo to testify in their favour that they own and possess the land in dispute and that Adeyemi’s building is bounded by their family land. All appellants’ pleadings and evidence adduced were properly evaluated by the learned trial judge and his lordship found that the identity of the land complained about, was not planned or surveyed to establish its identity by calling the boundary men who would know the identity and its dimension. See FAGBENRO VS. AROBADI (2006) 7 NWLR (pt. 978) 172, NGIGE VS. OBI (2006) 14 NWLR (pt. 999)1; ADMIN GEN, DELTA STATE VS. OGOGO (2006) 2 NWLR (pt. 964) 366; NEPA VS. AROBIEKE (2006) 7 NWLR (pt. 979) 245. Appellants could not establish the title to the land because they did not testify by traditional evidence neither could they establish their acts of ownership and possession. I entirely agree with the findings and conclusion reached by the trial judge that the appellants had woefully failed to prove or establish their case. I hereby find it difficult to allow the appellants appeal on the ground that their claim at the lower court was for trespass and their reliefs be granted. Appellants could not establish ownership and possession of the land in dispute. In the final analysis, the appeal is unmeritorious and is dismissed. I affirm the decision of the trial judge.
Parties to bear their cause.
Other Citations: (2009)LCN/3287(CA)
