Clement Odunukure V. Dennis Ofomata & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C

The Plaintiff for himself and on behalf of the Anazodo Odunukwe family of Nnewichi Nnewi, the Appellants in this appeal sued the Defendants, now Respondents, claiming jointly and severally as per paragraph 12 of their amended statement of claim as follows:-

(1) Declaration of title to all that piece or parcel of land situate at Obuofia Nnewichi Nnewi within the jurisdiction and more particularly delineated and verged Pink in the Survey plan No. EC.127/72 filed with this statement of claim.

(ii) 100 pounds damages for wanton acts of trespass committed by the defendants on the said land.

(iii) Injunction to restrain the defendants, their servants, agents and privies from further entry on the said land.”

Pleadings were filed and exchanged and, with leave of Court amended. The case accordingly proceeded to trial at which both sides led evidence in support of their respective case. Each side led evidence which showed that they relied on traditional history and positive acts of possession. At the conclusion of trial, and after closing speeches by learned counsel for both sides, the learned trial judge in a considered judgment delivered on the 7th of November 1994 dismissed the plaintiffs claims.

The Plaintiffs were displeased with this judgment and appealed to the Court of Appeal, Enugu Division. That Court dismissed the appeal. They have further appealed, to this court. Pursuant to order 6 rules 5 (1)(a) and, (2) of the Supreme Court Rules the appellants filed their briefs on the 12th day of January 2004 and a Reply brief on the 18th day of May 2009. An amended respondents brief was deemed duly filed on the 20th day of April, 2009.

The notice of appeal filed on the 1st of July 1999 contained five grounds of appeal from which the appellants counsel distilled four issues for the determination of this appeal. Learned counsel for the respondent extensively argued in the respondents brief a preliminary objection. I will consider the preliminary objection first. This is the correct procedure, because a preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellants process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwude 1999 11 NWLR pt.626 p.314, NEPA v. Ango 2001 15 NWLR pt.737 p.627.

Nowadays, Preliminary objections are filed once a respondent notices any error in the appellants processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal the respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See Muhammed v. Military Administrator Plateau State 2001 16 NWLR pt.740 p.524; NDIC v. Oranu 2001 18 NWLR pt.744 p.183

Finally and for emphasis, A preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.

I shall proceed to examine the objection wrongly couched as a preliminary objection as I cannot brush it aside, it being fundamental, and in the absence of objection from learned counsel for the appellant. Learned counsel for the respondents observed that Grounds 1 and 5 in the Notice of Appeal are grounds of mixed Law and facts, contending that both grounds are incompetent because leave of the court of Appeal or this Court was not obtained before they were filed. Reliance was placed on Section 233 (2) (a) of the Constitution. Ifediorah v. Ume 1988 2 NWLR pt.74 p.5; Obijuru v. Ozims 1985 2 NWLR pt.6 p.167

He urged us to strike out both grounds of appeal. Responding, learned counsel for the appellant observed that ground 1 complains of misunderstanding of the Law and so it is a ground of Law. On ground 5 he argued that the complaint was that the learned trial judge was in error in dismissing the plaintiffs claim, contending that it is also a ground of law. Reference was made to Ogbechie v. Onochie 1986 2 NWLR pt.23 p.484; Nwadike v. Ibekwe 1987 4 NWLR pt.67 p.718

He urged this court to dismiss the preliminary objection as the said Grounds 1 and 5 of the Grounds of Appeal are Grounds of Law.

To distinguish between a ground of law and a ground of fact the appellation given by counsel is irrelevant. The ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the Law or a misapplication of the Law to the facts admitted or proved it is a ground of Law. Where the ground of appeal questions evaluation of evidence before the application of the Law, it is a ground of mixed law and fact. A ground of appeal on a question of fact is obvious. See Metal Construction (W.A) Ltd v. Migloire 1990 1 NWLR pt.126 p.299; Ogbechie v. Onochie 1986 2 NWLR pt.23 p.484.