Saka Atuyeye & Ors. V. Emmanuel O. Ashamu (1987)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
On the 4th November, 1986, after listening to both Alhaji Oseni and Chief Williams S.A.N., Counsel for the parties and having read the brief, I dismissed the plaintiffs appeal against the decision of the Court of Appeal delivered on 16th July, 1985.
The lower court had set aside the judgment given in favour of the plaintiffs by Jinadu J., in the High Court of Lagos State, whereof he ordered that the deed of contract of sale between Sunmola Atuyeye, Muri Awoyemi and Fasasi Salako on the one part and the defendant, Emmanuel Oyedele Ashamu, on the other part, dated the 10th April, 1970 and registered as No.44 at page 44 in Volume 1313 of Deeds in Lagos State and another Deed of Ratification between the same parties bearing the same date and registered as No. 47 in Volume 1313 of the Register of Deeds at the Lands Registry Lagos, be set aside. He also made an order of injunction against the defendant.
The Notice of Appeal to the Court of Appeal contained four grounds of appeal, which read:-
“(1) The learned trial Judge erred in law when he failed to give proper appraisal to the evidence adduced by the Defendant and relied heavily on the evidence adduced by the plaintiffs in giving his decision.
“(2) The learned trial Judge misdirected himself in law and upon the fact when he failed to consider the equitable defences set up by the Defendant.
“(3) The learned trial Judge erred in law in giving judgment for the plaintiffs when they (the plaintiffs) had not discharged the onus of proof of the alleged duress, undue influence and intimidation as required by law.
“(4) The judgment was unreasonable and cannot be supported having regard to the weight of evidence.”
The record of appeal was duly compiled and transmitted to the Court of Appeal. On the 5th February 1985, Chief Williams, S.A.N., Counsel for the defendant/appellant filed a Motion on Notice, praying for leave to amend the grounds of appeal by substituting a new set of four grounds of appeal. It is pertinent that the third of the proposed grounds was couched in the same term as the original ground 4 – viz:-
“The judgment is against the weight of evidence.”
On the same day, learned counsel filed the appellant’s brief. Alhaji M.O. Oseni, learned counsel for the respondent however filed a Notice of Preliminary Objection alleging that:
“The appeal is incompetent because the Notice of Appeal is defective in that there was no valid ground of appeal contained therein.”
In the respondent’s brief, learned counsel stated the basis for the objection in paragraphs 1(b), (c) and (d) as follows:-
“(b) It is the respondent’s contention that grounds 1 – 3 which allege error in law and misdirection in law are in breach of Order 3 Rule 2(2) of the Rules of this Court which obliges the appellant to give the particulars and the nature of such error in law and misdirection. This has not been done with the result that each of the said grounds is no ground and therefore each of them I submit with respect, is worthless. I refer to the case of Okorie & Ors. v. Udom & Ors. (1960) 5 FSC at 162 where the Federal Court of Appeal dealt with similar point.
“(c) Ground 4 of the grounds of appeal in my submission is not only inappropriate as a ground of appeal in civil proceedings but also in breach of Order 3 Rule 2(4) of the Rules of this court as it discloses no reasonable ground of appeal. It is trite law that civil cases are decided on a pre-ponderance of evidence as against criminal cases where as is well known, what is required is proof beyond all reasonable doubt. (Italics mine for emphasis)
“(d) In putting forward this objection, the respondents have adverted to the application of the appellant in the form of a notice of Motion dated 5th February, 1985 for leave of this court to amend “the grounds of appeal on Page 115 of the Record of appeal set out in the Schedule.” It is submitted that on the face of that application the appellant had indicated a clear intention to abandon the original grounds 1-4 of the grounds of appeal which the respondents are now complaining about. This contention is fortified by the fact that the brief of argument filed by the appellant was based entirely on the new set of grounds of appeal for which the leave of this Court is being sought. The resultant position in the view of the respondents is that the appeal is being heard only on the new set of the grounds of appeal and in that connection, it is submitted that even if the Court grants the prayer and the new grounds are substituted, still there is no appeal properly before the Court on the maxim ‘ex nibito nihil fit’ meaning “from nothing, nothing comes,” In other words, since there is no appeal before the Court, the substitution of a new set of grounds of appeal cannot alter the position as you cannot substitute anything for something which does not exist.”
When on the 9th May 1985, the appeal came before the court below, Chief Williams opened his argument in support of the appeal and there was no record of what happened to the Motion for amendment of the grounds of appeal. It was however recorded that Alhaji Oseni in his reply to Chief William’s argument in Court said he adopted the arguments in his brief on the preliminary objection, citing the case of Chief J. O. Awhinawhi & Anor. v. Chief B. E. Oteri & Ors. (1984) 5 S.C. 38 in support of his preliminary objection. The judgment of the court below, delivered by Mohammed. J.C.A. (with Ademola and Kutigi J.J.C.A. concurring) did not decide the point but stated:-
“Mr. M. O. Oseni, raised a preliminary objection that the appeal was incompetent because it contained no valid ground of appeal. We considered Mr. Oseni’s submission, and after taking note of the fact that Chief Williams had been granted leave to amend the grounds originally filed, by substituting them with the grounds set out in a motion filed before us, the objection of Mr. Oseni was overruled.”
The rest of the judgment dealt with the substantive issues raised in the grounds of the appeal and in the final result, the appeal was allowed, the judgment of the trial Court was set aside. and a verdict of dismissal of the plaintiffs’ claim was substituted. It is against this decision that the plaintiffs, the respondents in the lower Court, appealed to this Court on two grounds. In this Court Counsel argued only the 1st ground relating to the competence of the appeal before the Court below. He abandoned the 2nd ground which the ‘appellants in their brief stated that they did not intend to pursue.
During the course of his argument, I asked Alhaji Oseni whether ground 4 of the original Notice of Appeal of the Plaintiffs in the Court below was not a proper or valid ground and I drew his attention to the case of Okozie v. Queen (1963) 1 All N.L.R. 1 p.3. Learned Counsel answered in the affirmative. He said he was relying on the same case which he cited in the Court below, namely Chief J. O. Awhinawhi & Anor. v. Chief S. E. Oteri & Anor. (1984) 5 S.C. 38 and more particularly, the portion of Eso’s J.S.C., judgment at p.41 where he said:-
“The only ground of appeal specified “weight of evidence” which is no ground of appeal in civil cases. In other words the notice of appeal contains no ground of appeal. A fortiori the proceedings before the Court of Appeal were null.”
Order 3 Rule 2(2) and 2(4) of the Rules of the Court of Appeal Rules 1981 on which counsel relied for the objection read:-
(2) If the grounds of appeal allege misdirection or error in law the particulars and nature of the error shall be clearly stated.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motions or on application by the respondent.”
These Rules relate to appeals in civil cases. Rule 2(4) is directed against any ground which is vague or general in terms or which discloses no reasonable ground of appeal. But it specifically saves what is generally known as the “general ground” or “omnibus ground.” It says “save the general ground that the judgment is against the weight of evidence.” So the very rule on which learned counsel relied in support of his objection is against his contention.
On the other hand, section 20 of the Court of Appeal Act, No.43 of 1976, provides that the Court of Appeal in any criminal appeal against conviction or against an order of acquittal discharge or dismissal shall allow the appeal if it thinks that the verdict should be set aside on the ground that “it is unreasonable or cannot be supported having regard to the evidence …. ”
It is clear from the above statutory provisions, that in a civil appeal, the general ground that the judgment is against the weight of evidence is permissible. Similarly, in a criminal case appeal, the Court of Appeal Act permits a ground which states that “the verdict should be set aside because it cannot be supported having regard to the evidence.”
There is a long line of decisions of this and other courts to the effect that in civil cases, the proper ground against the findings of fact is the omnibus ground, that the “judgment is against the weight of evidence” and I need only refer to a few of such cases.
In Elijah Okezie v. Queen (1963) 1 All N.L.R. 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 the instance of the Court, sought leave 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; see Federal Supreme Court Act, 1960, section 26(1), and the Federal Supreme Court Rules, 1961, Order VII, Rule 2. “It is clear that unless there is some evidence to support it, the verdict in a criminal case cannot stand. The other test is whether a reasonable tribunal or jury, if they appreciated the evidence rightly and applied the law appropriate to the case, could have returned the verdict. This is the light in which a criminal appeal on the facts should be argued and approached.”
As against this approach, in civil appeals, the proper form is that the judgment is against the weight of evidence. See Akibu v. Opaleye & Anor. (1974) 11 S.C. 189 where the 4th ground of appeal stated,-
“4. The verdict is against the weight of evidence.”
The Court proceeded to examine the evidence and eventually arrived at the decision that the learned trial Judge failed properly to evaluate the evidence of long possession and set aside his finding on the issue. See also Alhaji Adebola Olakunle Elias v. Chief Timothy Omo-Bare (1982) 5 S.C. 25, at p.31. Sir Udo Udoma, J.S.C. spoke of
“Many grounds of appeal were filed among which is the omnibus ground that the judgment is against the weight of evidence.”
And in the course of his judgment after stating the well established principle that civil cases are decided on a preponderance of evidence and the question of onus of proof, the Court came to the decisions that there was insufficient evidence to justify the learned trial Judge in granting the appellant the declaration and injunction claimed by him.
I am not unaware that certain Ordinances and Laws, permitted in criminal appeals, a ground which says that the judgment is
“altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”
See section 19 of the Magistrates Courts (Appeals) Ordinance, No.41 of 1945 and section 80 of Magistrates Courts Law, Cap. 74 of the Laws of Western Region of Nigeria. The West African Court of Appeal stated its view on the point in Samuel Aladesuru & Ors. v. The Queen which opinion was affirmed by the Privy Council. See (1955) W.L.R. 515 at p.517 where it was reported:-
“In their judgment the West African Court of Appeal stated:-
The first ground of appeal that judgment is against the weight of evidence is an appropriate ground in civil matters where verdicts are to be arrived at by preponderance of evidence. In criminal matters the proper ground of appeal is that “the verdict is unreasonable and cannot be supported having regard to the evidence………..
The above accord with the present view of this court in its most recent decisions in civil matters. In Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 S.C. 291. Idigbe, J.S.C. at p.309 stated:-
“This burden of proof on the plaintiff does not discharge the trial Judge from his duty to consider the evidence of both plaintiff and the defendant and ascribe relative weight to each of them. All it means is that at the weighing of the evidence of both sides, the plaintiff should succeed because the evidence in his favour tips the balance in the imaginary scale. He should have led more credible and admissible evidence to secure a declaration in his favour.”
I may also be permitted to refer to the positive statement of the principle by Obaseki, J.S.C. in Alhaji Raji Oduola & Ors. v. John Gbadebo Coker C (1981) 5 S.C. 197. It is the decision which overruled two previous decisions of the court, namely Mobil Oil Nigeria Ltd. v. Abolade Coker (1975) 3 S.C. 175 and Odufunade v. Rossek (1962) 1 All N.L.R. 98. There were dicta in the said two cases expressing the view that the grounds “judgment is against the weight of evidence” is not apposite in a case where the defendant called no evidence.” At p.255, in Oduola’s case supra, he said that the judgment was against the weight of evidence and preceded to say:-
“the ground of appeal that judgment is against the weight of evidence is available and a proper ground to be argued.”
He further explained that “whether the ground is available depends on the state, quality, credibility and the several cumulative weight of the pieces of evidence accepted by the Court of trial in each case.”
The contention of Alhaji Oseni that all the four grounds were not valid, including the general ground that the judgment is against the weight of evidence, cannot be correct. At least, ground four, the general ground was a proper ground of appeal in the court below. The statement of Eso, J.S.C. quoted above, in Awhinawhi’s case supra, seems to me nothing but merely a slip.
The view expressed above supports a recent decision of this court, over which Eso, J.S.C. presided. It is the case of Anachuna Anyaoke & Ors. v. Dr. Felix C. Adi & Ors. (1986) 3 N.W.L.R. 731- Uwais, J.S.C. in the lead judgment of this court correctly explained the scope and nature of this ground of appeal at p.742 where he said:-
“It is true that an omnibus ground of appeal implies that the judgment of trial court cannot be supported by the weight of the evidence adduced by the successful party, which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge 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 Judge, further implication of the omnibus ground is that when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial court – see Chief Abah Ogboda v. Daniel Adelugba (1971) 1 All N.L.R. 68 at p.71: Mba Nla & Ors v. Ede Nwede Anigbo & Ors. (1972) 1 All N.L.R. (Part N.L.R. (Part 2) 74 at p.80 and Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at p.93 .In deciding upon these issues it may be relevant to consider whether the trial Judge was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would of course affect the cogency given to the testimonies.” It was a unanimous decision of the Court.
As the appeal before this court was based only on this ground and no other ground which I held was misconceived, the appeal was dismissed for the foregoing reasons.
Other Citation: (1987) LCN/2305(SC)
