Chief Rufus Omotosho & Ors. V. Ife North Local Government (2009)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The appeal is against the decision of High Court of Justice, Osun State, delivered on 15th June, 2004 by G. E. Oladoke (J) in which the plaintiffs but now appellants claim was dismissed. Being dissatisfied with the decision, the appellants filed within time, their notice of appeal containing seven (7) grounds from which they have raised 2 issues for determination. They read thus:-

“1. Whether the court was right in dismissing plaintiffs claim when faced with the unchallenged evidence of the plaintiff as the case was solely based on trespass, possession has not been proved satisfactorily by the plaintiff as to entitle them to have judgment.

2. Whether the court was right in hobbling that the plaintiffs had to prove all the five points listed in the case of IDUNDUN VS. AKUMAGBA (1976) 9 & 10 SC when in law, such points are not cumulative and in any event, the claim is basically and essentially was trespass when possession had been proved.”

In opposing the appeal, learned counsel for the respondent has raised a preliminary objection on the ground that the notice of appeal filed by the appellants, failed to comply with Order 3 Rule 2 of the Court of Appeal Rules 2002, and that the grounds of appeal attacking the decision of the trial court are of mixed law and fact, and that the leave of the lower court or this appellate court have not been sought and obtained as required by section 242 (1) of the Constitution, 1999. Respondent’s counsel is of the view that the appellants’ grounds of appeal merely alleged error in law but failed to state particulars of and errors made by the trial judge. The respondent has contended that failure of the appellants to comply with Order 3 Rule 2 (2) of the Rules of this court, 2002 has rendered the Notice of Appeal incompetent and that it should be struck out and the appeal should be dismissed. Counsel referred to and relied on the authority of cases in IWUOCHA VS. NIPOST (2003) 4 SCNJ 258, 262; SHORMU VS. AFRIBANK (2002) 6 SCNJ 454, 457; OSASONA VS. AJAYI (2004) 5 SCNJ, 82, 85; AJAUOKORO (1991) 7 NWLR (pt.203) 260, 273.

By the rules of this court, once a reasonable notice of preliminary objection is raised, and argued in respondent’s brief, it is necessarily to determine the objection before moving to the substantive appeal. In the instant appeal, the respondent had filed his notice of preliminary objection and is contained in paragraphs 4.0.1 – 4.0.2 on page 3 of the brief.

Learned counsel for the appellant has filed a reply brief in respond to the preliminary objection. Reply brief was filed on 13-9-07.

The appellants’ notice of appeal is contained at page 20 of the record. As stated by the respondent, appellant’s grounds 2, 3, 4 and 5 are merely that “the trial court erred in law,” without particulars of the error made by the trial court on which the appellants are complaining against.

The notice of appeal and the briefs of arguments were filed under the Rules of this Court 2002; and Order 3 Rule 2 (2) of this court, made it clear that –

“if the grounds of appeal allege misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.”

The underlined words are mandatory as “shall” is not only obligatory but mandatory. It is true that the essence of particulars as the name implies in Order 3 Rule 2 (2), is to particularize in specific language, the grounds of appeal and the errors of law alleged to have been committed by the trial judge. Particulars in a ground of appeal, are specifically intended to elucidate and state the reasons if any for the complaint in each particular ground. By stating particulars, the respondent is not taken by surprise in the appeal matter, and the appellate court will also appreciate the appellants’ complaint by looking at the specific decision where the trial judge erred if any. In this appeal, appellants have failed to state the particulars of error said to have been committed by the lower court. This failure has occasioned grounds 2, 3, 4, and 6 incompetent, and are thereby struck out. The remaining appellants grounds 1 and 5 read as follows:-

“1. The judgment is against the weight of evidence.

5. The lower court has unwittingly being proving the case of the defendant and this has led to a miscarriage of justice.”

It is trite law that, even one valid ground of appeal, can sustain an appeal. See ABUBAKAR VS. YAR’ADUA (2009) 5 WRN 1, 118. The appeal will therefore be heard in respect of grounds 1 and 5 from which the appellant has formulated two issues for determination. It is not unusual for an appellant to file an omnibus ground of appeal as done by the appellants in the instant appeal. A ground of appeal which complains that the judgment appealed against is against the weight of evidence, is called the omnibus ground and is also called a general ground of appeal in either civil or criminal appeal. In civil appeal, the omnibus ground is postulating that there is no evidence which, if accepted, would support the findings of the trial court or the inference which is made. It always has to do with evidence led and evaluation thereof by the trial court. Moreover, an omnibus ground of appeal implies that the decision of the trial judge cannot be supported by the weight of evidence if any adduced by the successful party, namely, the respondent, or that the trial court wrongly accepted evidence or the inference it drew or conclusion it reached and based on the accepted evidence cannot be justified. It also implies that there is no evidence which, if accepted would support the findings of the trial court. See OSOLU v. OSOLU (2003) 11 NWLR (pt. 832) 608.LAGGA VS. SARHUNA (2009) 16 NWLR (pt. 1114) 427 at 453 and 481.

In the instant appeal, the proceedings was entirely, a solo evidence on the plaintiff/appellant because the present respondent did not participate at the trial. At page 16 of the record, learned trial judge in his judgment has clearly stated that –

“going by the record in file, precisely the affidavit of proof of service……service of the writ of summons and the statement of claim was effected on one Mr. Kehinde Alabi, a representative of the defendant on 15th July, 2003 when the defendant failed or refused to file memorandum of appearance and before, the plaintiffs brought an application for an order to set the case down for hearing……. On 2nd September, 2003 the said application was granted….. ”