Augustine Joseph & Ors V. Jonah Joseph & Anor (2016)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Appeal No: GM/83A/2007 over the Judgment of the Upper Area Court, Billiri delivered on 27-09-2007. The trial Upper Area Court had, in its judgment, distributed the estate of Joseph Polis among his heirs, and its decision was affirmed by the Gombe State High Court. Dissatisfied with the decision of the Gombe State High Court, the Appellants, with the leave of Court granted on 26-07-2013, further appealed to this Court vide a Notice of Appeal containing two Grounds. The Notice of Appeal is dated 23-08-2007 and was filed on 27-08-2013.
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A summary of the facts of the case is as follows: Joseph Polis, (deceased), the father of both the Appellants and the Respondents herein by different mothers, died intestate and left behind an estate, wives and children. During his life time, he had children with three different women namely, Abigail, Esther and Ladi, in that order. The marriage to Abigail was customary and was not fully completed, but they had a child

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together before their separation. He later married Esther in Church and they had four children, two male and two female. Of these children two died, leaving one male and one female. The parents again later went their separate ways. Thereafter, he married Ladi with whom he lived up to the time of his death. They had seven children. After his death, Esther brought an action against the 3rd wife, Ladi, seeking for the division of the estate of their late husband between the two latter wives. In the course of investigation, it was discovered that Joseph Polis had divorced Esther, and she had remarried other persons even before his demise. Based on this fact, her name was struck out from the suit for lacking in locus standi. In her place however, her two children, namely Juliana and Samaila, were brought in.
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On 10-05-2005, Jonah Joseph, the 1st Respondent herein and the son of the first wife, Abigail, also instituted an action against the third wife, Ladi, seeking for his share in his late father?s estate. Following an application brought for consolidation, the two separate suits were later consolidated on 06-06-2006. The earlier Plaintiff, Esther, had

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listed seven items which, according to her, belonged to their late husband and which should be distributed among his heirs. The items were (1) a house at Polamba, (2) a house at Kashere, (3) two bulls, (4) one cow, (5) one ploughing bull, (6) one small grinding machine and (7) six sheep.

The Defendant on her part, disputed these claims and listed only (1) cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira Only), and (2) one old motor cycle, as constituting the entire estate of the deceased, claiming that the rest of the items listed by the Plaintiffs actually belong to her and her children. Being a minor, Samaila, was subsequently substituted and replaced by Ishaya Polis, a younger brother of late his late father.
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During the trial before the Upper Area Court Billiri, the Plaintiffs adduced evidence through four witnesses in proof of the validity of the marriages between the deceased and the other two wives, as well as the fact that the children named in the suit were the legitimate heirs of the deceased. The trial Court later adjourned for the Plaintiffs to call evidence to ascertain the estate left by the deceased, which was to be

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distributed among his heirs. However, no further evidence was adduced in this regard by the Plaintiffs. The Defendant did not also adduce any evidence in defence of the claim, after several adjournments had been granted and the defendant had absented herself from Court.

At the close of trial, Counsel addressed the trial Court and it proceeded to deliver Judgment. The learned trial Court listed all the items it had seen as part of the estate of the deceased when it visited the villages of Polamba and Kashere. The Court added this to the various sums of money that were alleged to be in the custody of the Defendant and her children. It put everything together and divided same as the estate of the deceased to his heirs. This included those items which the Defendant had informed the trial Court belonged personally to her and her children. The inspection report is at pages 35-36 of the Record, the evaluation report is at pages 40-42 of the Record and the distribution of the estate is at pages 44-45 of the Record.
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Aggrieved, Ladi Joseph, (the Defendant at the trial Upper Area Court Billiri), filed an Appeal against the Judgment to the Gombe State High

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Court. The original Notice of Appeal is at page 1 of the Record. While the Appeal was pending, Ladi died and the Lower Court granted an application to substitute her with the present Appellants and to file and argue additional Grounds of Appeal.
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On the 16th May, 2016, when the Appeal was called up for hearing, J.A. Oguche Esq., learned Counsel for the Respondents, argued a preliminary objection challenging the competence of the Appeal. The objection is embedded in the Respondents? Brief of argument deemed filed on 11-04-2016. The two grounds of the objection were as stated at page 13 of the Brief and the arguments thereon were set out thereafter. He adopted the arguments in support of the objection in urging the Court to uphold the objection and dismiss the Appeal, on the ground that, where there are no competent issues for determination, the Appeal is liable to be dismissed.
In reply, learned Counsel for the Appellants, P.A. Aki, Esq., submits that the Appellants? response to the preliminary objection is as contained at pages 5 to 6 of the Appellants? Reply Brief of argument filed on 25-04-2016. He adopted the arguments therein in

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urging the Court to hold that the preliminary objection has no basis, and to dismiss same as being merely an academic exercise. Thereafter, in respect of the main Appeal, Counsel adopted the Appellants? Brief of argument filed on 18-06-2015, as well as the Appellants? Reply Brief of argument, into which was incorporated arguments in response to the Respondents? Notice. He urged the Court to allow the Appeal, set aside the Judgment of the two Lower Courts, and dismiss the Plaintiffs? claim at the trial Court. In the alternative, he asked the Court to make an order of retrial.
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In response, Mr. Oguche adopted the arguments at pages 19 to 22 of the Respondents? Brief of argument (deemed duly filed on 11-04-2016) in urging the Court to dismiss the Appeal for lacking in merit. In addition, he drew the Court?s attention to the Respondents? Notice to contend that the Judgment of the Lower Court be varied, which was deemed filed on 11-04-2016. He adopted the arguments in respect of this Notice, incorporated at pages 5 to 12 of the Respondents? Brief of argument, in urging the Court to vary the order of the Lower

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Court from one of dismissal to one of striking out of the Appeal of the Appellants before that Court.
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Learned Counsel for the Appellants distilled two issues for determination from the two grounds of appeal. Learned Counsel for the Respondents agreed with him on this and adopted the same issues in his arguments. The issues, with slight modification as to grammar and syntax are set out as follows:
1. Whether the Respondents (as Plaintiffs before the trial Upper Area Court Billiri), proved their case in respect of the estate left by the deceased, Joseph Polis, which was subject to distribution to his heirs, to warrant shifting the burden of proving otherwise onto the Appellants. If not, whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed items were not part of the estate of the deceased. (Ground one)
2. Whether the distribution of all the items the trial Upper Area Court found at Polamba and Kashere villages, together with the monies which it included as part of the estate of the deceased in the custody of the Appellant?s mother, Ladi Joseph, was not a

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decision against the weight of evidence. (Ground two)

Before going into the merit of the Appeal, it is expedient to examine the preliminary objection to the grounds of appeal in the Notice of Appeal and the issues distilled therefrom, since it raises a key issue of jurisdiction relating to the competence of the Appeal before this Court.
RULING ON PRELIMINARY OBJECTION:
The Respondents in their Brief of argument raised an objection to the Appeal and challenged its competence on two grounds, to wit:
(i) ?Ground two of the Grounds of Appeal is incompetent, same not being a ground of appeal cognizable in civil appeals.
(ii) Issues 1 & 2 of the Appellants are incompetent, as same are complaints against the Judgment of the trial Upper Area Court and also does (sic) not wholly (sic) from Grounds one and two which they are purportedly distilled from.?

Ground 1 of the objection:
In respect of ground one, learned Counsel for the Respondents submits that the Notice of Appeal filed before this Court shows that ground two of the grounds of appeal is the omnibus ground which is couched as follows:
?The whole

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decision is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence adduce placed before the Court.?
He submits that the omnibus ground in civil appeals is that ?the judgment is against the weight of evidence? whilst in criminal appeals the omnibus ground is that ?the judgment is unreasonable, unwarranted and cannot be supported by the weight of evidence?. It therefore goes with saying that the omnibus ground of appeal in civil appeals is fundamentally and materially different and distinct from that in criminal appeals. The omnibus ground as couched by the Appellants in their Notice of Appeal is the omnibus ground of appeal permissible only in criminal appeals, while the Appeal before this Court is purely a civil appeal. Thus the question is whether the said omnibus ground of appeal as endorsed on the Notice of Appeal is valid and/or competent in law. He submits that such a ground is not competent because the law is settled that, in appellate practice, an omnibus ground of appeal in a civil appeal which is couched in the manner permissible only for criminal appeals, is automatically vitiated

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and rendered incompetent in law. He submits that since the Appellants distilled issue (ii) in their Brief of argument from the incompetent ground two, it also automatically becomes vitiated and is rendered incompetent as well. He relies on Ibeto V Aminu (supra) at 450; Nwanwata V Esumei (?); & Ehuwa V Ondo State INEC (2007) All FWLR (Pt. 35) 1415 at 1420-1421. Counsel therefore urged the Court to uphold ground 1 of the Respondents? objection and strike out ground two of the Grounds of Appeal together with issue 2 distilled therefrom, for being grossly incompetent.
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Ground 2 of the objection
Again, learned Counsel for the Respondents submits that issues 1 and 2 formulated by the Appellants in their Brief of argument are incompetent in law for the following two reasons. Firstly, that whereas the Appeal before this Court is an Appeal against the Judgment of the High Court of Justice of Gombe State sitting in its appellate jurisdiction, it is curious that in distilling the issues for determination, the Appellants formulated issues 1 and 2 in a manner to suggest that they are complaining against the decision of the trial Upper Area Court

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rather than the decision of the Lower Court. Since this Appeal is an Appeal against the decision of the Lower Court, issues 1 and 2 of the Appellants? Brief, which are complaints against the decision of the trial Upper Area Court Billiri are to that extent, void and incompetent in law. He relies on Udor V State (2014) 58 NSCQR 824 at 831. While conceding that in the second part of issue 1, the Appellants do complain against the holding of the Lower Court, Counsel still submits that the entire issue 1 has been contaminated and rendered incurably bad by the first part, which is a complaint against the decision of the trial Upper Area Court. He submits that it is not the duty of this Court to perform a surgical operation on issue 1 in order to sever or remove the competent part of the issue from the incompetent portion. He relies on Abe V Unilorin (2014) 57 NSCQR 985 at 987-988, wherein the Supreme Court held:
?Once the ground or one or more of its particulars is liable to striking out the remaining particular or particulars as well as the ground itself are rendered otiose because it is not the duty of the Court to extend hands of fellowship to

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one of the parties by assisting him to carry out a surgical operation of that party?s ground of appeal by excising the defective part from it.?

Secondly, Counsel submits that issue 1 of the Appellants? Brief distilled from ground one of the Grounds of Appeal, does not flow from and/or arise from the said ground one. He argues that whilst ground one complains against the holdings of the Lower Court to the effect that the Appellants failed to call evidence to prove that some of the items listed for distribution were not part of their deceased father?s estate; issue 1 on the other hand questions whether the Respondents proved their case at the trial Court. While conceding that the second part of issue 1 has some semblance of a relationship with ground two of the grounds of appeal, the entire issue has been contaminated and rendered incurably bad by the first part, which does not flow from ground one. The again relies on Abe V Unilorin (supra) at 987-988 to submit that it is not the duty of this Court to conduct a surgical operation on issue 1 in order to sever or remove the competent part of the issue from the incompetent portion.<br< p=””

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Counsel further submits that issue 2 in the Appellants? Brief is incompetent because it is a complaint against the decision of the trial Upper Area Court Billiri, rather than the decision of the Lower Court, which is the subject of the present Appeal. In appellate practice, an omnibus ground of appeal cannot be used by an Appellant to challenge and/or complain against an error of law or specific findings of facts made by the trial Judge. He relies onStatoil Nigeria Limited V Inducon Nigeria Limited (2014) 9 NWLR (Pt. 1411) 43 at 59. Counsel thus submits that both issues 1 and 2 of the Appellants? Brief are incompetent in law in view of the fact that the twin issues for determination are void and/or incompetent. He urged the Court to also uphold ground two of the Respondents? objection and to dismiss the Appeal for being bereft of any competent issue for determination.
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Learned Counsel for the Appellants in response, readily concedes that ground two of the Grounds of Appeal and issue two formulated therefrom and argued therein are incompetent. His concession is however not for the reason stated by the Appellants, but for the fact that

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the Appellants did not call any evidence at the trial Upper Area Court. As a result, they cannot rely on a ground of appeal based on the weight of evidence, as there was nothing on the other side of the scale to weigh against the evidence that was called by the Respondents at the trial Court. To this end he conceded that ground two and issue raised therefrom are indeed incompetent.

On the first ground of objection however, Counsel submits that it is misconceived, and that the case of Abe V Unilorin (supra) was cited out of con. He submits instead that issue (i) was properly distilled from ground one of the Grounds of Appeal filed before this Court. He contends that the complaint in ground one directly attacks the decision of the Gombe State High Court from which the Appeal lay to this Court. The complaint was about the Lower Court pushing the burden of proof to the Appellants as against the established principles of law. The particulars to the ground presented the undisputed facts as placed before the trial Upper Area Court Billiri, which was the court of first instance. These were the same facts that were presented to the Gombe State High Court

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sitting on Appeal.

Counsel relies on Section 16 of the Court of Appeal Act, Order 6 Rule 2(1) of the Court of Appeal Rules 2011, and Lagga V Sarhuna (2008) 161 LRCN 133 at 185 to submit that appeals are done by way of rehearing, and so the facts as presented at the Lower Court are the same facts that come before an appellate Court. He therefore submits that issue (i) argued from ground one of the Grounds of Appeal is not an issue contesting the Judgment of the trial Court, as wrongly perceived by the Respondents. He asks the Court to treat issue (i) as a whole and not in fragments as suggested by the Respondents? Counsel.
In this regard, Counsel argues that at page 108 of the Record, the Lower Court called in aid the principle of the burden of proof when it held as follows:
?We hold the view also that it is not the business of the Court to scour (sic) for evidence. The law is he who averts (sic) must prove. If Mallama Ladi is asserting that the house at Kashere or Polamba belongs to her the burden is on her to establish title to the property by adducing cogent and convincing evidence before the Court could declare the title in her

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favour.?

Counsel submits that the law is well settled that in civil cases, the burden of proof first lies on the party who would fail if no evidence was given, and in this case, it is the Respondents who were Plaintiffs before the trial Court. The Appellants in their Appellants? Brief have drawn the Court?s attention to how the Lower Court wrongly applied this principle of law. He submits that the invitation to this Court to consider the application of the doctrine of the burden of proof as used by the Lower Court vis-a-vis the evidence that was placed at the trial Court, and which issue came on appeal to the Gombe State High Court, is not a complaint against the Judgment of the trial Court, as canvassed by the Respondents in their arguments. He contends that this ground of objection is therefore misconceived and should be discountenanced. Counsel urged the Court to discountenance all the arguments on the preliminary issues of law raised in the Respondents? Brief, apart from the attack on ground two and issue two which deals with the Appellants? appeal on the weight of evidence. Instead, he urged the Court to uphold

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the Appeal based on ground one and issue (i) formulated and argued there under.

Findings:
This Appeal is against the Judgment of the Gombe State High Court sitting in its appellate jurisdiction over the decision of the Upper Area Court, Billiri. The suit had commenced at the Upper Area Court where the Respondents? mother had sued Ladi Joseph in respect of the distribution of the estate of their late father, Joseph Polis. At the trial Upper Area Court, the Plaintiffs (now Respondents) adduced evidence through four witnesses in proof of their case. The sole Defendant then, Ladi Joseph, did not adduce any evidence in her defence. However, in her statement before the trial Court, she had stated that the two houses and other properties claimed by the Plaintiff belonged to her and her children, and not to the deceased. At the close of trial, the trial Upper Area Court found in favour of the Plaintiffs and distributed the estate of the deceased as claimed amongst the heirs of the deceased accordingly.
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Aggrieved by this decision, the Plaintiff filed an Appeal to the Gombe State High Court wherein she complained only in terms of the omnibus ground

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(at page 1 of the Record). Shortly thereafter, she died, and was substituted by her children, who were subsequently the Appellants before that Court. They also sought and were granted an application to argue additional grounds of appeal. At the close of hearing of the Appeal before the Lower Court, the decision of the Upper Area Court was affirmed and the Appeal was dismissed. The Lower Court found inter alia thus at page 108 of the Record:
?We hold the view also that it is not the business of the Court to scour (sic) for evidence. The law is he who averts (sic) must prove. If Mallama Ladi is asserting that the house at Kashere or Polamba belongs to her the burden is on her to establish title to the property by adducing cogent and convincing evidence before the Court could declare the title in her favour.?

Still aggrieved, the Appellants appealed to this Court on the following two grounds:
?GROUND ONE
The Gombe State High Court presided over by Hon. Justices Ibrahim Mohammed and A.M. Yakubu misdirected itself on the issue of the burden of proof and thereby occasioned a very serious miscarriage of justice when it held that

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the Appellants failed to call evidence to prove that some of the items listed for distribution like the house at Kashere, bicycle, 4 goats and its 2 kids, three sheep and three bulls were not part of their deceased father?s estate meant for sharing and that when they had opportunity to call evidence they were busy running away from the Court and that it is not part of the business of the Court to search for evidence.? (Emphasis supplied)
Some of the particulars of this ground relevant to the arguments proffered on the Respondents? objection are:
i. The law is that he who assert (sic) must prove and until the Plaintiff discharges the burden of proof on him or her such burden does not shift automatically to the defendant.
ii. ?
iii. After evidence was led to prove the 1st issue, the Respondents as Plaintiff (sic) at the trial Court listed the item (sic) they wanted to be shared among the heirs which according to them were part of their deceased father?s (Joseph Polis) estate.
iv. Mrs. Ladi Joseph who was the Defendant at that stage and who is the mother to the present Appellants accepted some of the listed

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items as belonging to the late Joseph Polis but excluded some as belonging to either herself or her children.
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vi. The Respondent (sic) through their counsel said they will call evidence to prove these allegations that were denied but failed to call any witness. Therefore the burden cannot be shifted automatically to the Appellants.? (Emphasis supplied)
GROUND TWO
The whole decision is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence placed before the Court.?

In arguing the Appeal before this Court, the Appellants filed a Brief of argument on 18th June, 2015. Therein, two issues were distilled for determination from these two grounds of appeal. Issue one was distilled from ground one, while issue two was distilled from ground two. Issue one is reproduced hereunder as follows:
1. ?Whether the Respondents in this appeal as Plaintiffs at the trial Upper Area Court Billiri proved their case as to what was said was left by the deceased Joseph Polis which was subject to distribution as to have shifted the burden of proving otherwise to the Appellants. If not whether

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the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed item (sic) is not part of the deceased?s estate subject to distribution.?
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After a calm examination of ground one of the Grounds of Appeal vis–vis issue one of the issues for determination reproduced above, I find that the objection raised thereto amounts to nothing but raising a storm in a teacup. Both the ground and the issue are very clear and explicit on the fact that the Appellants? complaint is against the express finding of the Gombe State High Court that the Appellants (as Defendants before the trial Court) failed to discharge the burden of proof on them to prove their assertion that the property which they claimed belonged to them and not to the estate of their late father, Joseph Polis, actually did belong to them. The Appellants question this finding of the Lower Court on the ground that the Respondents herein (as Plaintiffs before the trial Court) had not, on their part, discharged the burden on them as Plaintiffs. I believe nothing could be clearer. While an argument could possibly be made

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that ground one of the Grounds of Appeal may have been inelegantly couched. However, this does not, without more, make it incompetent, nor the issue distilled therefrom. See Oleksandr V Lonestar Drilling Co. Ltd (2015) LPELR-SC.42/2005; Omisore V Argbesola (2015) LPELR-SC.204/2015; Fabiyi V State (2015) LPELR-SC.259/2009; Ogbonnaya V FBN Plc LPELR-CA/L/719/2013; & Aigbobahi V Aifuwa (2006) LPELR-SC.194/2001. I therefore find no merit in the Respondents? objection to ground one and issue one distilled therefrom. It is accordingly overruled.
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In respect of ground two of the Grounds of Appeal, which is the omnibus ground of appeal (as reproduced above), it complains that the decision of the Gombe State High Court is against the weight of the evidence. Learned Counsel for the Appellants has since readily conceded to its impropriety on the ground that the Appellants, having not adduced any evidence before the trial Court, there was nothing on the other side of the scale to weigh against the Plaintiffs? evidence. Consequently, the issue has been overtaken by this concession to its invalidity on this ground. Nevertheless, I am not unmindful of the

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fact that the issue was challenged, not on this basis, but on the basis that it is incompetent as it is not a proper ground of appeal in a civil appeal; as well as the fact that it is an attack against the Judgment of the trial Upper Area Court instead of being a complaint against the Judgment of the Gombe State High Court. However, I am of the view that it would merely amount to an academic exercise to embark upon a foray into these issues at this stage in view of the fact that the Appellant has readily conceded to the incompetence of the ground of appeal on another point of incompetence. This Court, being without jurisdiction to embark upon an academic exercise, and not inclined to spend precious judicial time on an issue that has since become academic, I decline the temptation to go any further into the ground. See Daniel V INEC (2015) LPELR-SC.757/2013; Nobis-Elendu V INEC (2015) LPELR-SC.160/2014; Odom V PDP (2015) LPELR-SC.395/2013; FRN V Borisade (2015) LPELR-SC.230/2012; Ngere V Okuruket ?XIV (2015) LPELR-SC.54/2012-SC.335/2012; & Salik V Idris (2014) LPELR-SC.120/2011. Suffice to say that I sustain the objection on ground two of the Grounds

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of Appeal and issue two distilled therefrom. Thus, ground two is accordingly struck out and issue two formulated therefrom is discountenanced. However, having found no merit in respect of the objection to ground one of the Grounds of Appeal, the objection raised to it and issue one raised therefrom is overruled and dismissed.

JUDGMENT
Since issue two for determination distilled from Ground two of the Grounds of Appeal, has since been struck out in the Ruling on the preliminary objection, on the ground of incompetence, we are left with only issue one for determination in the Appeal. It states as follows:
Issue one:
Whether the Respondents (as Plaintiffs before the trial Upper Area Court Billiri), proved their case in respect of the estate left by the deceased, Joseph Polis, which was subject to distribution to his heirs, to warrant shifting the burden of proving otherwise onto the Appellants. If not, whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed items were not part of the estate of the deceased. (Ground one)

Learned Counsel for the Appellant

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submits that in civil claims, the onus of proof is on the Plaintiff and the standard of proof is by the preponderance of evidence or proof on the balance of probability based on the evidence led. He relies on Sections 131, 132, 133 & 134 of the Evidence Act, 2011; andObi V Onyemelukwe (2011) 1 NWLR (Pt. 12228) 400 at 424 D-E; & OMTC Ltd V BV Ltd (2011) 9 NWLR (Pt. 1252) 303 at 316. He contends that two principal issues were placed before the trial Upper Area Court, Billiri for determination. The first issue was the question of who the legitimate heirs of late Joseph Polis were; while the second issue was the extent of the estate left behind by the deceased. While Appellants? mother admitted some of the claims in respect of the estate of the deceased, to wit: cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira), and one old motor cycle, she denied the other items claimed. The Respondents had listed other items which the trial had Court called upon the Appellants? deceased mother, Ladi Joseph, (as the Defendant before the Lower Court), to respond to. She informed the trial Court that the items enumerated by the

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Respondents? Counsel belonged to her daughters. Counsel therefore submits that the burden of proof lay on the Respondents to prove that they were legitimate heirs to late Joseph Polis, alongside with the Defendant and her children, and to further prove that the deceased left behind the extent of the estate as listed by the Respondents which is subject to inheritance by his heirs. The Respondents called four witnesses who testified in proof of their claim (pages 20-22 & 25-25 of the Record). The trial Court thereafter ruled (at page 27 of the Record) that Juliana, Samaila and Jonah were all children of Joseph Polis and it would investigate further to determine the extent of the deceased?s estate available for distribution to his heirs.
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Counsel submits that the issue of whether Ladi and her children were legitimate heirs to Joseph was never contested. In fact the deceased?s brother, PW2, Ishaya Polis, listed all the seven children Ladi bore for the deceased as also heirs to the estate. Therefore, he agrees that the trial Court rightly found that the 1st issue was proved and that it would continue with its investigation to know how

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much wealth the deceased left behind for distribution to his heirs. Counsel refers to Sections 131(1) & (2) and 133(1) of the Evidence Act to submit that the burden of proving the listed items in the estate of the late Joseph Polis also rested on the Respondents. He submits that there is, in addition, a presumption that since the Appellants? mother, Ladi, was the only wife of the deceased that stayed with him up to the point of his death, the items mentioned by the Respondents would include her personal belongings and that of her children. Therefore, that by virtue of Section 131(2) of the Evidence Act, the burden of rebutting this presumption rests on the Respondents. He contends that the Respondents did not call any witness to discharge this burden even though at page 11 of the Record, they had listed three witnesses they intended to call to prove that the items claimed were part of the estate. The only thing before the trial Court in this regard consisted of the arguments and submissions of Counsel for the Respondents as to the sums of money and property left by the deceased. He relies on A.I.E. V Adebayo (2006) 134 LRCN 455 at 516 to submit that

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submissions or address of Counsel cannot take the place of legal evidence.
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Counsel further submits that, when the matter came on appeal to the Gombe State High Court, the Appellant?s two additional grounds of appeal which dealt with this issue were argued. However, the Lower Court in its Judgment placed the burden of proof on the Appellants, in contravention of Section 133(2) of the Evidence Act. He argues that based on this provision, before the burden can shift, evidence must be led by the claimant. However, in instant case without such evidence being led, the Gombe State High Court transferred the burden to the Appellants by its holding at page 108 of the printed Record. Counsel therefore submits that it is an error of law for the Lower Court to have so held, as there was no evidence placed before the trial Court to have shifted such burden onto the Appellants. Instead, that it was the Respondents, as Plaintiffs before the Lower Court, who contended that the items they listed belonged to the deceased, while the Defendant denied it. Therefore, by the operation of the law, the initial burden of proving that those items belonged to the deceased

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rested first on them. If they had adduced any evidence to discharge this burden, the burden would then have shifted to the Defendants (now Appellants) to prove that the items belonged to her and her daughters, and not to the estate of the deceased. He relies on Agbi V Ogbeh (1) (2006) 7 MJSC 1; & Ezemba V Ibeneme (2007) 7 SCNJ 136. Counsel therefore submits that it was wrong for the Lower Court to have transferred the burden of proof onto the Appellants, when it could not have shifted by the operation of law.
Counsel further submits that it was wrong for the trial Court, which refused to admit the statements of M. Saidu and M. Rosaline made during the inspection of the estate of the deceased by the trial Court, (wherein they confirmed that the house at Kashere belongs to Mallama Ladi), on the ground that the statements were not given as sworn testimonies in Court and subjected to cross-examination; and yet to proceed to accept statements/submissions made by Counsel to the Defendants before the trial Court, without oath and without being subjected to cross-examination, that the distributed properties belonged to the deceased.
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Based on all these,

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Counsel urged the Court to hold that the burden of proof that was placed by law on the Respondents to establish that the property listed by them as belonging to the estate of Joseph Polis which was subject to distribution by the trial Court, was not discharged. Therefore, that the Upper Area Court Billiri was wrong to have included these items and the disputed the sums in the estate of the deceased for distribution to the heirs. Also that the Gombe State High Court was equally wrong to have confirmed the said Judgment for the reasons hereinbefore stated. Finally, he asked the Court to set aside the two Judgments on this ground.
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In the Respondents? Brief, learned Counsel for the Respondents argued issues 1 and 2 together. He urged the Court to answer issue 1 in the affirmative, issue 2 in the negative, and to proceed to dismiss the Appeal for completely lacking in merit. Counsel submits that this Appeal, being an Appeal against the concurrent Judgments of the trial Upper Area Court Billiri and the High Court of Justice of Gombe State sitting on appeal over the decision of the trial Court, the Appellants have the onerous duty to prove the perverseness

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of the decisions. It is his submission that the Appellants woefully failed to adduce any extra-ordinary reason or circumstance that would warrant the interference of this Court with the concurrent findings of both Courts. He relies on Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419 at 431; Onwubuariri V Igboasoiyi (2011) All FWLR (Pt. 569) 1059 at 1062; & Arum V Nwobodo (2013) Vol. 218 LRCN (Pt. 2) 1 at 7; John Holt Ventures Limited V. Augustine Oputa (1996) 9 NWLR (Pt. 470) 101.
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Counsel submits that the decision of the Lower Court affirming the Judgment of the trial Upper Area Court Billiri is impeccable in law because, with the failure of the Appellants to call witnesses or adduce any evidence at the trial, the trial Upper Area Court Billiri had nothing on the other side of the scale of justice to weigh the evidence on; thus leaving the evidence adduced by the Respondents as unchallenged, un-contradicted and uncontroverted by the Appellants. This is more so that the Appellants completely failed to cross-examine all the witnesses called by the Respondents during the trial, thus, leaving the evidence adduced by the Respondents as unshaken. He

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relies on Gaji V Paye (2003) 12 MJSC 76 at 80. Counsel submits that all the issues raised by the Appellants in the Appeal against the decision of the Upper Area Court Billiri and/or its affirmation by the Lower Court, are non-issues which have failed to knock the bottom from these decisions. Additionally, he relies on Arum V Nwobodo (supra) at 8 to submit that the trial Court is an Area Court whose decision should not be subjected to too much scrutiny. He finally urged the Court to resolve issues 1 and 2 in favour of the Respondents, and to dismiss the Appeal as lacking in merit.

Findings:
The crux of the Appellants? complaint under this issue is that, in view of the state of evidence before the trial Upper Area Court, the Gombe State High Court was wrong to have affirmed its decision on the ground that the Appellants failed to discharge the burden of proof on them to establish that the property listed by the Respondents was not a part of the estate of the late husband of the Defendant, Ladi; but actually belonged to her daughters, (one of which is the 3rd Respondent before the Lower Court). A critical examination of the proceedings of the

32

trial Court confirms this state of affairs.
From an oral statement of the claim of the Appellants as articulated by the original Plaintiff (Esther Samuel) before the trial Upper Area Court, Billiri, (at page 7 of the Record), she claimed ?some properties? left behind by their late husband, Joseph Polis. The Defendant (Malama Ladi) on her part, while conceding to the distribution of the estate to all the heirs of the deceased, stated that the only property their husband left behind as his estate was the sum of N710, 000.00 (Seven and Ten Thousand Naira) and one old motor cycle (page 10 of the Record). Thereafter, the original Plaintiff listed the following as the properties in the estate of the deceased to be distributed:
1. A house at Polamba
2. A house at Kashere
3. Two Bulls
4. One Cow
5. One ploughing Bull
6. One small grinding machine and
7. Six sheep
Upon being asked to respond to this claim, the Defendant stated that the items listed all belonged to her daughters. The following dialogue then transpired between the trial Court and the Plaintiff:
?Qst: Court to Esther: Do you have

33

witnesses to prove in respect of the other item/properties listed.
Ans: Esther:- I have the following witnesses. Antiya, Adamu and Ishaya
Court adjourned to 20/4/2005 for hearing plaintiff witnesses.?

Four witnesses subsequently testified for the Plaintiff in proof of this claim. It is worth noting at this stage that they were not cross-examined by the Defendant and so their evidence was uncontested. However, as has been rightly submitted by learned Counsel for the Appellants, the evidence adduced only succeeded in establishing that the Respondents herein, (Jonah and Samaila, along with their sister Julianah), were also rightful heirs of the late Joseph Polis, in addition to the other children the deceased bore with the other two women. This was the first limb of the claim before the trial Court, and it is evident from its Ruling (at page 27 of the printed Record), which stated as follows:
?The Court is made to understand that Juliana, Samaila and Jonah all are children belonging to Joseph Polis, therefore, the Court shall continue with its investigation and know how much wealth Joseph left behind for award distribution to his

34

hairs (sic) Ladi having admitted that they are Joseph?s children.? (Emphasis supplied)

Thereafter, no further evidence was adduced by the Plaintiff(s) in proof of the second limb of the claim, which was the list of items claimed by the original Plaintiff as being part of the estate of the deceased subject to distribution to his heirs. All we have later is a record by the trial Court of a statement attributed to Counsel for the Defendants, H.A. Saleh Esq., giving an extensive list of the components of the estate of the late Joseph Polis, which far exceeded to original claim of the Plaintiff. Yet again, the Defendant denied being aware of most of the items listed as part of her deceased husband?s estate. Thereafter, Counsel sought for an adjournment to adduce evidence in proof of the enhanced list of the properties which, he alleged, also formed part of the estate of the deceased and which they claimed was in the possession of the Defendant; and the trial Court obliged them the adjournment (pages -27-29 of the Record). On subsequent adjournments, Counsel renewed their intention to produce witnesses before the Court who would prove the

35

additional claim (pages 30 and 32 of the Record), but to no avail. Instead, Counsel subsequently invited the Court to visit and inspect the alleged properties of the deceased in question (pages 32 & 34 of the Record). The trial Court embarked on this inspection and wrote a report of the properties inspected (at pages 35 to 36 of the Record). It was at this stage of proceedings that the Defendant, having pointed out to the trial Court that she had not been given an opportunity to put in her defence, was now granted an adjournment to do so (at page 38-39 of the Record). Upon the absence of the Defendant on the next date of adjournment, the Plaintiffs asked the Court to enter Judgment. Judgment was subsequently entered on 27-09-2007 wherein the trial Court shared the properties as claimed by the Plaintiffs in their enhanced claim among the children of the three wives of the deceased Joseph Polis (pages 40-45 of the Record).
?
Aggrieved by this decision, the Defendant appealed to the Gombe State High Court and complained on the omnibus ground of appeal in her Notice of Appeal dated 25-10-2007 (page 1 of the Record). Shortly thereafter, she died and was

36

substituted by her children, the present Appellants who, with the leave of the Lower Court sought and obtained, filed additional grounds of appeal (pages 2-5 of the Record). In its Judgment after hearing the Appeal, the Lower Court found that the Defendant failed to prove her assertion that the properties, (which the Plaintiffs had claimed formed part of the estate of their late father), actually belonged to her, as she failed to call any witnesses to support her assertion. It concluded thus (at pages 107-109 of the Record):
?We hold the view also that it is not the business of the Court to scour (sic) for evidence. The law is that he who averts (sic) must prove. If Mallama Ladi is asserting that the house at Kashere or Polambu belongs to her the burden is on her to establish title to the property by adducing cogent and convincing evidence, before the Court could declare title in her favour? It is on record that M. Ladi stated she has witnesses to call to establish her claim but at the time when she and others were supposed to have called evidence to prove their assertions they kept running away from the Court proceedings. The trial Court was

37

not supposed to wait for them to produce their witnesses at their convenience.? (Emphasis supplied)
With due respect, from a holistic examination of the totality of the evidence adduced before the trial Court, this finding of the Lower Court is not borne out by the record of the trial Court. Instead, the evidence discloses quite eloquently that the Plaintiffs woefully failed to adduce any evidence in proof of their claim in respect of the claim relating to the extent of the estate of their deceased father. An analysis of the evidence adduced by the Plaintiffs has earlier been made in the body of this Judgment.
?
After the Ruling of the trial Court on the issue of who were the heirs of the deceased Joseph Polis entitled to a share of his estate, the Plaintiffs applied through their Counsel and were granted adjournments to adduce evidence in proof of the claim that the properties listed by them were all part of their father?s estate. They however never adduced any more evidence to prove this. Instead, they invited the trial Court to inspect the properties which formed part of their claim. It was shortly after this inspection, that the trial

38

Court listed and evaluated the properties inspected, and entered Judgment in favour of the Defendants on the basis of the properties it saw during the inspection and on the alleged failure of the Plaintiff to prove that the properties belonged to her. However, the placement of the burden of proof on the Plaintiff was clearly misplaced. By virtue of Sections 131, 132, 133 and 135 of the Evidence Act, 2011, the burden of proving that the properties listed by the Plaintiffs were part of the estate of the late Joseph Polis to be shared among his heirs first rested on the Plaintiffs themselves. It is only after they would have discharged this onus of proof that it would shift to the Defendant. To have placed the burden of proof on the Defendant without any iota of proof of the claim by the Plaintiffs was to go against the grain of the import of the provisions of the law in this regard. The law is trite that he who asserts must prove. Also, whereas the legal burden of proof remains throughout on the claimant to establish his claim otherwise he loses his claim, the evidential burden of proof in a case fought on pleadings rests on the party who asserts in the

39

affirmative and shifts, depending on the pleadings of the parties at each turn. In the instant case, the evidential burden of proof on the Plaintiff never shifted, as there was a total dearth of proof of the claim relating to the properties allegedly constituting the estate of the deceased. There was therefore no duty on the Defendant (now Appellants) to prove the negative, i.e. that the properties claimed did not form part of the estate of the deceased. The authorities on this are legion. However, a few will suffice: Odom V PDP (2015) LPELR-SC.395/2013; Ngere V Okuruket (2015) LPELR-SC.54/2012-SC.335/2012(R); Sakati V Bako (2015) LPELR-SC.202/2002; Okoye V Nwankwo (2014) LPELR-SC.234/2004; Onovo V Mba (2014) LPELR-SC.102/1990;Aminu V Hassan 92014) LPELR-SC.44/2002; & Oredola Okeya Trading Co. V BCCI (2014) LPELR-SC.96/2003.

I therefore agree with learned Counsel for the Appellant that the burden of proof was wrongly placed on the Defendant (now Appellants) by the trial Court, and the Lower Court was wrong to have found that the trial Court acted rightly in this regard and also wrong to have affirmed that finding. This issue is therefore resolved in

40

favour of the Appellants.

In spite of this finding however, and before making any final order in respect of the Appeal, I believe it is still incumbent and imperative on this Court to examine the Respondents? Notice of intention to contend that the Judgment of the High Court of Justice, Gombe State be varied pursuant to Order 9 Rule 1 of the Court of Appeal Rules, 2011. This is invariably because as a general rule, an intermediate Court, such as this Court, has a duty to pronounce on all issues before it. In this regard, this Court is unlike the Supreme Court which, as the apex Court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Adeogun v. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522; Shasi V Smith (2010) 6 WRN 39 at 68; & Uzuda V Ebigah (2009) 48 WRN 1. I shall therefore proceed accordingly anon.

RESPONDENTS? NOTICE OF INTENTION TO CONTEND THAT THE JUDGMENT OF THE HIGH COURT OF JUSTICE GOMBE STATE, BE VARIED.
In addition to

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responding to the Appeal by their submissions in the Respondents? Brief of argument, the Respondents filed a Notice of intention to contend that the decision of the Lower Court be varied as follows:
?The Appeal is incompetent in law and same is hereby struck out for want of jurisdiction.?
The grounds relied on by the Respondents in the Notice are stated therein as follows:
(i) The original Notice of Appeal of the Appellants filed in the Lower Court on the 25th of October, 2007, against the decision of the trial Upper Area Court Billiri is incompetent and invalid in law as the purported omnibus ground of appeal, which is the sole ground of appeal stated therein, is not cognizable and/or permissible by law in civil appeals.
(ii) The original Notice of Appeal of the Appellants filed in the Lower Court on the 25th of October, 2007 against the decision of the trial Upper Area Court Billiri was vitiated ab initio in that it contained a purported omnibus ground of appeal as its sole ground of appeal, even when the Appellants neither called witnesses nor adduced evidence before the trial Upper Area Court Billiri.
?
Before going

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into the arguments presented on this Notice, it is well to state that learned Counsel for the Appellants, having readily acceded to Ground two of the preliminary objection specifically on the basis of the second ground in this Respondents Notice, and having already pronounced on this concession by striking out ground two of the Grounds of Appeal, it would amount to mere repetition and a waste of judicial time to again re-hash it here. I will therefore confine myself to addressing the issue raised in ground one of the Notice.
In arguing this Notice, the Respondents formulated one lone issue for determination, to wit:
“Whether the order of the Lower Court dismissing Appeal No. GM/83A/2007, which is the subject matter of the present Appeal, ought to be varied to be an order of striking out, regard being had to the fact that the Lower Court lacked the jurisdiction to entertain and determine the said Appeal to finality in view of its incompetence and invalidity in law.”

Counsel submits that, by the twin grounds of this Notice, the Respondents are challenging the competence and/or validity of Appeal number GM/83A/2007 (the subject matter of this

43

Appeal), as well as the jurisdiction of the Gombe State High Court to have entertained and determined same to finality. He contends that this is permissible in view of the settled position of the law that an issue of jurisdiction can be raised by any of the parties to a case, at any time, including on appeal; and relies on Anyanwu V Ogunewe (2014) Vol. 231 LRCN 42 at 46-47; Lastma V Ezezoobo (2012) 3 NWLR (Pt. 1286) 49 at 52; & Olatunji V Olakunde (2012) 1 NWLR (Pt. 1280) 133 at 154-155 paras A-H & A-H.

Counsel submits that this Appeal was filed against the decision of the Lower Court which had dismissed the Appellants? earlier appeal from the decision of the trial Upper Area Court in Appeal number GM/83A/2007. The said Appeal before the Lower Court was commenced by the Appellants vide the original Notice of Appeal filed on the 25th October, 2007 (at page 1 of the printed Record). The sole ground of appeal endorsed therein is the omnibus ground, which was couched as follows:
?The decision of the UAC Billiri was unreasonable unwarranted and cannot be supported having regard to the weight of evidence adduce.?
?
Counsel

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submits that it is trite that the omnibus ground in civil appeals is that the judgment is against the weight of evidence, whilst in criminal appeals, the omnibus ground is that the judgment is unreasonable, unwanted and cannot be supported by the weight of evidence. He therefore contends that the omnibus ground as couched by the Appellants in their original Notice of Appeal is the omnibus ground permissible only in criminal appeals, whereas the Appeal of the Appellants to the Gombe State High Court is a civil appeal. He contends that the logical question then is, whether the omnibus ground of appeal as endorsed on the original Notice of Appeal before the Lower Court is valid and/or competent in law. In answer, Counsel contends that the omnibus ground as framed is not competent because in appellate practice, an omnibus ground of appeal in a civil appeal couched in the manner permissible only for criminal appeals, is automatically vitiated and rendered incompetent in law. He therefore argues that, since the omnibus ground is the sole ground of appeal contained in the original Notice of Appeal filed at the Lower Court, the original

45

Notice of Appeal has been vitiated and/or rendered void in law in view of the incompetence of its sole ground. This is so because a Notice of Appeal which contains a lone or single incompetent ground of appeal is automatically vitiated or rendered void, as same is incapable of being sustained by that lone incompetent ground of appeal. He relies on Ibeto V Aminu (2007) 5 NWLR (Pt. 1028) 446 at 450; Nwantata V Esumei (1998) 8 NWLR (Pt. 563) 650; & Agala V Okusin (2010) 4 SCNJ 5.

Counsel further submits that, having shown that the sole ground of appeal filed by the Appellants at the Lower Court vide their original Notice of Appeal is incompetent on two grounds, the question is, whether the amendment of same by way of additional grounds of appeal is competent in law? He contends that it is not, and relies on Lasma V Ezezoobo (supra) at 51, as well as the Supreme Court decision of Nwaigwe V Okere (2008) 34 NSCQR 1325. Counsel submits that the entire proceedings conducted by the Lower Court in the said Appeal, including the order for the amendment of the original Notice of Appeal by way of additional grounds of appeal, the hearing of the appeal and its

46

final determination, were all null and void, as the jurisdiction of the Lower Court to entertain and determine the Appeal to its finality had been ousted by the incompetence of the said Appeal. He relies on Nigeria Army V Samuel (2013) 56 NSQR 844 at 849; & Ahmed V Ahmed (2014) Vol. 231 LRCN 179 at 188-189.
Counsel therefore urged the Court to resolve this issue in favour of the Respondents and grant the relief sought in the Respondents? Notice. In consequence, to vary the order of the Lower Court from one of dismissal of Appeal number GM/83A/2007, to an order striking out the said Appeal for incompetence and lack of jurisdiction. For this, he relies on Panalpina World Transport Nigeria Limited V Glenyork Nigeria Limited (2009) All FWLR (Pt. 455) 1793 at 1796; Aromire V Ajomagberin (2011) All FWLR (Pt. 586) 540 at 542-543.

In response to the submissions by the Respondents, learned Counsel for the Appellants submits on the first limb of the argument that he does not agree on the position of the learned Justices of the Court of Appeal in the two cases cited by the Respondents. He contends that his position is fortified in several decisions of

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other Courts, including the Apex Court, on the subject, some of which are: Adelusola V Akinde (2004) 12 NWLR (Pt. 887) 295; Atuyeye V Ashamu (1987) 1 NWLR (Pt. 49) 267; & Adeyeri V Okobi (1997) 6 NWLR (Pt. 510) 534. He submits that criminal cases are based on the burden of proof beyond reasonable doubt and not on the balance of probability, as in civil cases. Therefore, ?weight of evidence? is a term applicable only to civil cases which are based on the preponderance of evidence, and judgment is given where the evidence preponderates or tilts in favour of the party. He therefore submits that it is wrong to suggest that ?weight of evidence? is a principle of criminal law and becomes a ground meant for criminal cases simply because the words ?unreasonable, unwarranted and cannot be supported? are added in the omnibus ground of appeal.

Counsel further submits that the omnibus ground for criminal cases is that ?the verdict or judgment is unreasonable and cannot be supported having regard to the evidence that was before the Court.? He relies on Aladeasuru V The Queen (1956) AC 49; & BP (West Africa) Ltd V

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Akinola Allen (1962) 2 SCNLR 388. The operative word here, he contends, is the ?weight? of evidence that distinguishes the criminal and the civil omnibus ground appeal. In criminal appeals, the word or phrase ?weight? is lacking while in civil appeals, it is present. Counsel contends that at best, all the Respondents can contend is that the ground was badly drafted (though even this is denied). However, he submits that this, without more, does not render the ground incompetent. He relies on Omisore V Aregbesola (2015) 246 LRCN 44 at 108.
He therefore submits that the original Notice of Appeal dated 25-10-2007 (at page 1 of the Record) initiated a competent Appeal before the Lower Court, and it would therefore be wrong to argue that Judgment of the Gombe State High Court should be varied to that of striking out of the Appeal on the ground of want of competence or lack of jurisdiction. He finally urged the Court to discountenance all the arguments on the Respondent?s Notice.

Findings:
The first limb of this objection rests squarely on whether or not the omnibus ground in the original Notice of Appeal (page 1 of the

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Record) is competent in a civil appeal, such as this. For ease of reference, the ground states thus:
?The decision of the UAC Billiri was unreasonable unwarranted and cannot be supported having regard to the weight of evidence adduce (sic).?
In similar arguments presented before it, the Supreme Court in the celebrated case of Atuyeye V Ashamu (1987) NWLR (Pt. 49) 267; (1987) LPELR-638(SC) 1 at 11-13 (also relied upon by the Appellants), found inter alia as follows:
?There is a long line of decisions of this and other Courts to the effect that in civil cases, the proper ground against findings of fact is the omnibus ground, and the ?judgment is against the weight of evidence? and I need only to refer to a few of such cases. In Elijah Okezie V Queen (1963) 1 ALL NLR 1 at p.3, one of the three original grounds in criminal appeal was
?(2) The judgment of the learned trial Judge convicting the accused appellant is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.?
In his comment as to the form of the ground, Sir Ademola, C.J.F., said:-
?Counsel, at

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the instance of the Court, sought to delete the words ?weight of? in that ground of appeal.? In the light of Aladesuru v. The Queen, (1956) A.C.49, it was pointed out that the words ?weight of Evidence? are not applicable in criminal appeals. This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence? It is clear that unless there is some evidence to support it, the verdict in a criminal case cannot stand? As against this approach, in civil appeals, the proper form is that the judgment is against the weight of evidence
It goes without saying that there is without doubt a distinction between the general or omnibus ground of appeal in a criminal case and that in a civil case, and the principle underlying such a distinction. This Court, in Welle V Bogunjoko (2007) 6 NWLR (Pt. 1029) 125, following the Supreme

51

Court decision in the case of Atuyeye V Ashamu (supra) above, re-stated the distinction in the following terms:
?A civil appeal on the facts is not quite the same as an appeal on the facts in a criminal case. In a criminal appeal, the general ground is that the verdict is unreasonable and cannot be supported having regard to the evidence whilst an omnibus ground in a civil appeal is that the judgment is against the weight of evidence. While in criminal matters, the prosecution must prove his case beyond reasonable doubt, civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighed against that which is adduced by the respondent. It is therefore wrong to couch a ground that is not in conformity with this proof.? (Emphasis supplied)
Thus, this Court in tandem with the Supreme Court, has stated on numerous occasions that in a civil appeal, the general ground of appeal is that ?the judgment is against the weight of evidence?, whilst in a criminal appeal, it is that the verdict is ?unreasonable and cannot be supported having regard to the evidence.? For

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avoidance of doubt, in Audu V Ndubuisi (1996) LPELR-13718(CA) 1 at 14-15, Orah, JCA held as follows:
?In the instant case, the respondent as plaintiff at the trial Court below in support of her statement of claim adduced unchallenged, uncontradicted admissible credible evidence and called witnesses who supported her case, all of which were unchallenged or contradicted by cross-examination or in any other way? The learned trial Judge was therefore perfectly right in law and was bound as he did, to accept the unchallenged, uncontradicted, admissible credible evidence of the plaintiff/respondent; that she established a better title than that claimed by the defendant/appellant. It is only for this reason, that I will also overlook the incompetent ground of appeal in this appeal, i.e.
?That the decision of the Lower Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.?
This ground of appeal is without doubt incompetent, not permitted in a civil appeal and ought to be struck out by the Court suo motu by virtue of Order 3 Rule 2(7) of the Court of Appeal Rules 1981 (as

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amended).? (Emphasis supplied)
See also Umar V COP, Kano State (2014) LPELR-24012(CA) 1 at 35-36; Eluwa V Eluwa (2013) LPELR-221209(CA) 1 at 41-43; Ajibo V State (2013) LPELR-CA/E/349/2009; Egboma V State (2013) LPELR-CA/E/350/2009; Ikpana V Regd Trustees of PCN (2006) ALL FWLR (Pt. 310) 1703 at 1715; Ibeto V Aminu (2007) 5 NWLR (Pt. 1028) 446; Sulu-Gambari V Bukola (2004) 1 NWLR (Pt. 853) 122; Innih V Ferado A. & Co. Ltd (1990) 5 NWLR (Pt. 152) 604 at 614; Ihewuezi V Ekeanya (1989) 1 NWLR (Pt. 96) 239; Ofuani V Nig. Navy (2001) 16 NWLR (Pt. 739) 365; Maure V Abdul (2001) 4 NWLR (Pt. 702) 95; Uzoka V FRN (2010) 2 NWLR (Pt. 1177) 118. Hence, the needless and pointless attack on the decisions of the Court of Appeal in this regard by the very learned Counsel to the Appellants is most unwarranted and un-called for, to say the least.
A critical study of the omnibus ground of appeal filed before the Lower Court in the instant case discloses that it is an admixture or hybrid/crossbreed of both species of the omnibus grounds of appeal in civil and criminal appeals. Civil matters or cases, by our law of evidence, Section 34 of the Evidence Act, 2011

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thereof, are decided on the balance of probabilities or a preponderance of evidence, and therefore on the weight of such evidence as evaluated and ascribed by a trial Court. Thus, a complaint in a general or omnibus ground against the decision by a Lower Court to this Court on the assessment or evaluation of the totality of the evidence adduced by any or all the parties, and ascription of the probative value or weight due to it, should be based on the weight of such evidence, and not on the unreasonableness of the decision.
Again, looking calmly at the omnibus ground of appeal to the Lower Court, it is evident that while the Appellants complain against the ?weight of evidence? as is proper in civil appeals, at the same time and in the same breath, the ground complains that the Judgment of the trial Court is ?unreasonable?. The unreasonableness of a decision however attaches only to criminal appeals where the ground should be that the verdict is ?unreasonable and cannot be supported having regard to the evidence?. In civil appeals, an appeal should be grounded just on the fact that the ?judgment is against the

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weight of evidence.? That is the position of the law as articulated in a plethora of decided cases handed down even by the apex Court of the land (as cited above). As a result, since the Appellants? omnibus ground of appeal is not a valid ground in civil appeals such as this, it is incompetent and liable to be struck out.

The next question to be answered is: whether the subsequent amendment of the grounds of appeal changes the validity and/or competence of the grounds of appeal? Without much ado, I respectfully invite the renowned Jurist of our time, Onnoghen, JSC, to address this issue, as he did in the case of Nwaigwe V Okere (2008) LPELR-SC.392/2002, 1 at 23-24:
?The issue of filing six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of a valid ground of appeal raising a question of customary law for determination. Since there was no valid notice and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also

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applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as a notice of appeal so as to infuse live into it. In other words a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non existent or dead. See Awhinawhi V Oteri (1984) 5SC 38; Atuyeye V Ashamu (1987) 1 SC 333 at 358.? (Emphasis supplied)

I kowtow to the wisdom of his lordship of the apex Court on this matter, as I must. The answer to the question in the instant Appeal is that, having found that the omnibus ground of appeal filed by the sole Appellant at the Gombe State High Court was invalid and incompetent, no amount of amendment to that ground could have saved it. It was dead ab initio and cannot be resurrected. The purported amendment granted thereto was therefore an exercise in futility, a mirage which only momentously appeared to be real, but in fact, was an illusion. In the eyes of the law, the purported Notice of Appeal was non-existent

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or dead. As held by Onnoghen, JSC in Nwaigwe V Okere (supra), it is only a valid or competent Notice of appeal, and not a fundamentally defective one, that can be amended. Thus, the submission of learned Counsel for the Appellants that, since the Appeal was not argued on the omnibus ground as the sole ground, but also on the additional grounds of appeal, holds no water.

Again, in Nigeria Army V Samuel (2013) 56 NSQR 844 at 849, the apex Court stated the position of the law as follows:
?A notice of Appeal is the process that initiates an appeal, so if it is defective, any proceedings taken on a defective Notice of Appeal becomes null and void as the Court would have no jurisdiction to hear an appeal commenced on such a defective process. The reasoning is simple. You cannot put something (appeal proceedings) on nothing (defective Notice of Appeal) and expect it to stand. It would crumble.?
Also, in Ahmed V Ahmed (2014) Vol. 231 LRCN 179 at 188-189, the Supreme Court further stated thus:
?There can be no question of the point being decisive in the matter. It all comes down to the fact that the amended Notice of Appeal and

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the Appellant?s Brief of Argument must be valid and competent processes in order to sustain an appeal ? as otherwise however brilliantly the appeal is decided, the decision cannot stand where in the end, the Amended Notice of Appeal and the Appellant?s Brief of Argument are found to be invalid and incompetent and liable to be struck out
One more authority would suffice in this regard. In Mobil Oil Nig Plc V Yusuf (2008) LPELR-8585(CA) 1 at 9-10, Okoro, JCA (as he then was), held thus:
?I wish to state that an incompetent Notice of Appeal does not confer jurisdiction on the Court. In other words, where the initial notice of appeal is held to be incompetent, there would be no foundation upon which an amended notice of appeal is to ground or stand. The acceptable and laid down principle is that you cannot put something on nothing and expect it to stand. The two put together would both crumble. See Mcfoy V UAC (1962) AC 150 at 160. The initial notice predicating the subsequent amendment is the foundation which must be competent before the amendment can stand.?
While I agree that the decision of the

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Supreme Court in Lagga V Sarhuna (2008) 161 LRCN 133 at 185 stating that an omnibus ground of appeal can sustain an appeal or a Notice of Appeal, is settled and good law, such is only applicable to appeals where the omnibus ground is ab initio valid and competent. However, in this case where the omnibus ground of appeal, standing as the sole ground in the Notice of Appeal (which the initiated the process of the Appeal), has been found to be incompetent, the Appeal can no longer stand, as the well-worn principle of law is that, you cannot put something on nothing and expect it to stand. It will crumble like a pack of cards. See UAC V Mcfoy (1962) AC 150 at 160.
Having found the sole ground of appeal before the Lower Court incompetent, I also find that the Lower Court lacked jurisdiction to have entertained the Appellant?s agitation, which was woven around the incompetent ground. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt.

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776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import & Export V Adebayo (2003) FWLR (Pt. 140) 1686.
?
For the reasons stated, I therefore uphold the Respondents? Notice to contend on ground one thereof. Thus, in spite of my finding in earlier on resolving issue one in the main Appeal in favour of the Appellant, since the Appeal before the Gombe State High Court which gave rise to this Appeal was from the onset incompetent, it could not have given birth to the Appeal before this Court. I therefore hold that the order by the Gombe State High Court in its appellate jurisdiction should properly have been an order striking out of the Appeal before it on the ground of incompetence, and not an order of dismissal. The Appeal before that Court should not have

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been heard and determined on its merits in the first place, but should have been struck out peremptorily. I do so find. The Judgment is therefore varied accordingly.

In the result, Judgment is entered in favour of the Respondent herein dismissing this Appeal against the decision of the High Court of Justice, Gombe State for lacking in merit. It is further ORDERED that the Judgment of the High Court of Justice, Gombe State in Appeal number GM/83A/2007 between ?Augustine Joseph & 2 others V Jonah Joseph & 1 other?, delivered on 20th June, 2013, dismissing the Appeal, is hereby varied in the following terms:
The original Notice of Appeal, and the entire Appeal, filed before the High Court of Justice, Gombe State in Appeal number GM/83A/2007, between Augustine Joseph & 2 others V Jonah Joseph & 1 other, on 25th October, 2007, is incompetent in law and same is hereby struck out for want of jurisdiction. Parties are ordered to bear their own costs.

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Other Citations: (2016)LCN/8816(CA)