Mrs. Mary Wilkey V. Mrs. Ogbohu Ogiegbaen & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

T

is appeal is from a judgment of Akhigbe, J. of the Edo State High Court in Suit No. B/66/90 given on 25/10/95.

The Plaintiffs in the court below claimed against the defendant in their Amended Statement of Claim as follows:-

“(a) A declaration that title under Bini Customary land Law to a parcel of land lying and situate at Ward 40/A Ogbeson, Benin City in Oredo Local Government Area within the Benin Judicial Division measuring 100 feet by 200 feet and bounded by Ward Beacon Nos 282,379, 377. 400 which parcel of land is more particularly described in a litigation Survey Plan No. 150/BD/577/90 dated 12/4/90 filed in this action was immediately before the commencement of the Land Use Decree (now Act) vested in the 1st plaintiff and also the 2nd plaintiff to whom the 1st plaintiff transferred part thereof by reason whereof they are entitled to a Statutory Right of Occupancy in respect of the said piece or parcel of land.

(b) General Damages for trespass to the said piece or parcel of land.

(c) Perpetual injunction restraining the Defendant, her servants and/or agents from further trespass and/or interference with plaintiffs’ possession, use and enjoyment of the land in dispute”.

Pleadings were ordered, filed and exchanged. The case then proceeded to trial. The plaintiffs testified on their behalf and called five witnesses while the defendant testified on her behalf and called a witness. After reviewing the evidence adduced by both parties, the learned trial Judge in a reserved judgment found for the plaintiffs. The defendant was dissatisfied with the decision of the court below and consequently appealed to this court on a number of grounds.

The case of the plaintiffs was that the 1st plaintiff obtained title to the land in dispute by processing application for same through the Ward 40/A Ogbeson plot Allotment Committee to the Oba of Benin for approval and the approval by the Dba is Exhibit ‘B’ in the proceedings at the court below. The dimension of the land was said to be 100feet by 200ft as in Exhibit ‘B’ which was approved by the Oba on the 1st of April, 1976.

Exhibit ‘A’ is said to be the receipt for the purchase of rubber trees on the land in dispute by the 1st plaintiff.

The Defendant on the other hand traced her root of title from one Melodia Omoregie (Mrs) who in turn was alleged to have acquired possession and or title by virtue of a Will – Exhibit ‘E’ which gave a piece or parcel of land to Mrs. Melodia Omoregie’s son Daniel Imuetinyan and other children to share. The defendant stated that it was Mrs Melodia Omoregie who sold the land in dispute – 100 ft by 100ft to her pursuant to Exhibit G which is an Indenture made on 1/12/77 between Mrs. Melodia A. Omoregie and Madam Maria O. Wilkey. Exhibit ‘F’ is said to be the certified true copy of the Deed of Conveyance between the Oba of Benin and the late Donald Idiaghe Omoregie which said conveyance the defendant alleged covered the land willed to Mrs. Melodia Omoregie’s son.

As already indicated above the learned trial Judge granted the plaintiffs’ claims as follows:-

” (a) That the plaintiffs are entitled to that piece or parcel of land measuring 100ft by 200ft situate at Ward 40A at Ogbeson bounded by Beacon Nos. 282. 379 -377, 400 in Oredo Local Government Area, within Benin Judicial Division and Statutory Right of Occupancy thereof.

(b) General damages assessed at N5,000.00 only.

(e) Perpetual injunction restraining the defendant, her servants, agents, and/or privies from further

trespass and/or interference with the plaintiffs’ possession, use and enjoyment of the land appropriately described in (a) above.”

Both parties filed their respective briefs of argument. The appellant filed a Reply Brief in addition to the appellant’s brief. Based on the grounds of appeal filed, the appellant formulated the following issues for determination in this appeal:-

(1) Whether the learned trial Judge was justified in finding for the plaintiffs as claimed, having regard to the competing titles of Late Donald I. Omoregie – i.e. Exhibit ‘F’ and that of the 1st plaintiff, Mrs. Oghohu Ogiebaen – Exhibit ‘B’.

(2) Whether the learned trial Judge was justified in holding that, the failure of the Defendant to call Mrs. Melodia Omoregie or Daniel Imuetinyan Omoregie’s Beneficiaries of late Donald Omoregie’s Estate per Exhibit “F” as to her present interest in the land in dispute was fatal to the clear and formidable  defence of the defendant – thus disregarding the legal and customary effects of Exhibits “F”. “E” and “B” respectively and the unchallenged evidence of the D.W.1 – Exhibits “e”, “D” and “F”.

(3) Whether the learned trial Judge was justified in finding in favour of the plaintiffs and the award of N5.000.00 as general damages simpliciter or for trespass in view of the Defendant’s predecessor’s title. Late Donald Omoregie and possession of the entire land including the land in dispute?”

The Respondent formulated a lone issue for determination. It reads:-

“Whether the learned trial Judge evaluated properly the evidence before him”.

Before I consider the issues for determination raised by the parties it must be mentioned that the respondents at page 5 of their brief put in a preliminary objection as to the competence of the entire appeal. In the main it was submitted that all the grounds of appeal filed by the appellant are deficient because of noncompliance with the requirements of order 3 Rule 2(2) of the Court of Appeal Rules 1981. It is the contention of the respondents that all the grounds of appeal allege error of law and of facts and/or misdirection at the same time and therefore, offend the provisions of Order 3 Rule 2(2) of Court of Appeal Rules 1981 (as amended) which stipulates:-

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

It was submitted for the respondents that a ground of appeal cannot allege error of law and of facts and/or misdirection all at once. It was contended that an error is either of law or of facts or a misdirection as the case may be and should be properly so conched as one of law or of facts or a misdirection.

The respondent stated that ground 3 of the grounds of appeal is the omnibus ground from which no issue can properly be distilled. Learned counsel for the respondents argued that a ground of appeal which alleges error in law does not necessarily invest that that ground with error in law.

The court will still have to examine the particulars of ground to ascertain if it indeed is really a misdirection, an error in law or an error of fact, it was submitted. Reference was made to the case of Obatoyinbo vs. Oshatoba (1996) 5 N.W.L.R. (pt.450) 531.

The learned counsel for the respondents therefore submitted that since all the grounds of appeal in this appeal are incompetent the issues formulated thereon are also incompetent.

That being so, it was contended that the appeal itself should be struck out.

At this point in time I consider it necessary to bring in the reply brief of the appellant. It was submitted that the respondents’ preliminary objection is misconceived and ought to be ignored. It was contended that it is imperative for the court to look at the substance of the grounds rather than its classification in order to determine whether the grounds are competent or not. A number of cases were cited to support the stand of the appellant. Learned counsel for the appellant therefore submitted that this court should dismiss the respondents’ preliminary objection to the four grounds of appeal of the appellant and consider the appeal on its merit In view of the preliminary objection of the respondents to the hearing of this appeal. I consider it necessary to reproduce the grounds of appeal with their particulars in this judgment.

GROUNDS OF APPEAL

“1. That the learned trial Judge erred in law on the issue of competing titles to the Land of relevant original owners of the land in the case, in utter dis-regard to the pleadings and evidence adduced at trial.

PARTICULARS OF ERROR

1. Whereas the determining issue of competing, titles as pleaded and adduced are that of late Donald Idiaghe Omoregie, Exhibit “F” and that of the 1st plaintiff. Mrs. Ogbohu Ogiegbaen, Exhibit “B”.
2. Whereas Exhibit “F” encompasses the larger parcel of land of late Donald I. Omoregie, including the smaller parcel of land in dispute, Exhibit “C” claimed by 1st plaintiff.
3. Whereas the evidence of D.W.I, Survey Expert, Mr. Osaikhuiwu put the identity or indentities of the parcels of land claimed by the parties beyond doubt.
4. Whereas the D.W.1’s evidence on Exhibits “D”. “F” and “C” were not discredited nor challenged by the plaintiff nor rejected by the court in the Judgment.
5. Whereas the issue or consideration of good title to land in this case as contended by the learned trial Judge, was, apart from priority in favour of the original owner of land, now put in dispute, was in accordance with Bini Customary Law one in favour of late Donald I. Omoregie. and No. the 1st plaintiff.
6. That the learned trial Judge misdirected himself in law and on the facts when he held as follows:

“Exhibit “F” is the certified true copy of the Deed of Conveyance between the Oba of Benin and the late Donald Idiaghe Omoregie which said conveyance the defendant alleged covered the land willed to Mrs. Melodia Omoregie’s son. At this junction, it may be necessary to refer to the will Exhibit ‘E’. Particularly paragraph 15 thereof

“(15) My farm at Ogbeson village of 42 acres is to be divided in the ratio of 9.8,7.6. 5, 4, 3, 2, 1. respectively for Goodwill. Lucki, Charles, Osamuede. Isaken, Victor, Iduwayi, Imuenitinyan and Osabuohien.” (Underlined is mine)

“It is not made clear from the above the exact area or portion of the land allocated to each of the beneficiaries stated above and the defendant did not testify as to the land acquired by Mrs Melodia Omoregie from Exhibit ‘F’ for and on behalf of her son. Daniel Imuetinyan Omoregie – a beneficiary of Exhibit ‘F’.

Mrs. Melodia Omoregie the person alleged to have sold the land in dispute to the defendant was not called as a witness and her son, a beneficiary of Exhibit ‘E’ who by now should be of age was

also not called as a witness.

In my view, the mere putting in evidence of Exhibits ‘E’ and ‘F’ is not enough, certainly more credible evidence is required to prove her root of title and this is so because Mrs. Melodia Omoregie who sold the land in dispute to her is not a direct beneficiary of Exhibit “E”.

PARTICULARS OF ERROR

1. Whereas the competing titles to the land i.e. Exhibits ‘B’ and ‘F’ and the indentity of the parcels of land – Exhibits ‘C’ ‘D’ and ‘F’ as evidence by D.W.1 put the determining issue in the case clearly as between late Donalt I. Omoregie and the 1st plaintiff.
2. Whereas there is undisputed GRANTOR common to the original GRANTEES UNDER Bini Custom in the Oba of Benin, as Trustee and Legal Owner of all land in Benin Kingdowm, including the land in dispute situate in Ogbeson. See Exhibits ‘B’ and ‘F’. See also FINNIH V. IMADE, 1992 1 NWLR, part 219, page 311 at 539 cited in the judgment.
3. Whereas the finding by the learned trial Judge that Defendant’s root of title was not in accordance with Bini Customary Law is untenable. See THOMAS V. HOLDER. 12 WACA. 78
4. That the judgment of the learned trial Judge is against the weight of evidence.
5. That the award of N5,000.00 General damages against the Defendant has no basis in law and on the facts.

PARTICULARS OF ERROR

1. In that, there was no specific item in the claim for the said damages awarded.
2. In that, there was no findings of fact that, the plaintiffs were in physical possession of the land in dispute.
3. That the said award of N5.000.00 general damages did not represent any act of the Defendant thereby attracting such damages.”

It is manifest from the record that apart from ground 3 which is the omnibus ground. all the other grounds of appeal in this appeal are not in strict compliance with the provisions of Order 3, Rule 2(2) of Court of Appeal   Rule, 1981.

I have already reproduced the provision of Order 3 Rule 2(2), supra. Order 3 Rules (3) and (4) are also relevant and pertient. They provide as follows:-

“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely of the hearing appeal without any argument or narrative and shall be numbered consecutively.”

“(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 the 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 motion or on application by the respondent.”

After a hard look at grounds 1, 2, and 3 of the grounds of appeal I am of the view that they also do not strictly comply with the provisions of Rules (3) and (4) of Order 3. Court of Appeal Rules 1981; as they tend to be argumentative and narrative. It would appear that the learned counsel for the respondents was not vigilant enough to notice that.

As I have said above ground 3 is the omnibus ground from which it would appear no issue can properly be distilled without any other ground married to it. Ground 1 of the grounds of appeal that attempts to amplify that the learned trial Judge “erred in law on the issue of competing titles to land…” gave itself away when in particularising this ground it became clear that the quarrel was with the learned Judge’s evaluation of the facts adduced before him in evidence. It is now trite that a ground of appeal which merely alleges error in law does not necessarily invest that ground with error in law. The Court of Appeal will still have to examine the particulars of the grounds to ascertain if it indeed is really a misdirection, an error in law or an error of fact. See Obatoyinbo v. Oshatoba (1996) 5 N.W.L.R. (pt.450) 531.

It is my view that in considering a ground of appeal, the ground as formulated and its particulars are to be considered together.

It seems to me also that a ground of appeal which challenges or complains against the finding of title in the other party in a land suit is a ground of fact.

See Obatoyinbo va. Oshatoba (Supra). Thus ground 1 in the instant appeal is a ground of fact not law as contended by the appellant. I must therefore say it loud and clear that   non-compliance with the provisions of Order 3 Rule 2.3 and 4 of the Court of Appeal Rules 1981 empower the Court of Appeal to strike out any ground or grounds of appeal.

In exercising this power, the court of appeal must exercise the discretion judicially and judiciously as the present   attitude of the Court of Appeal is committed to doing substantial justice with less emphasis on reliance on technicality which invariably ends in injustice.

See Gwonto &Ors vs. The State (1983) 1 SCNLR 142; ICC Ltd vs. Granville & Sons Ltd (1996) 8 N.W.L.R. (pt.465) 187; Loke vs. Inspector General of Police (1997) 11 N.W.L.R. (pt.527) 57.

It must be pointed out that where all the grounds of appeal in a notice of appeal are incompetent, the notice of appeal is a nullity and the court has power to strike out the notice of appeal. See Akuchie vs. Nwamadi (1992) 8 N.W.L.R. (pt.258) 214; Idaayor VS. Tigidam (1995) 2 N.W.L.R. (pt.377) 359; A.C.B. PLC vs. Eagle Super Pack (Nig) LTD. (995) 2 N.W.L.R. (PT. 379) 590.

It is now trite that a ground of appeal cannot be an error in law and a misdirection at the same time. By its very nature, one ground of appeal cannot be the two, For the word misdirection originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence fairly submitted to the consideration of the tribunal. See Nwadike v. Ibekwe (1987) 4 N.W.L.R. (pt 67) 718.

I hold the view that a ground of appeal which alleges a misdirection differs from and is infact mutually exclusive of one which alleges an error in law.

This is because a misdirection relates to the court’s   statement of a party’s case, whereas an error relates to the determination by the court. See Nwadike vs. Ibekwe (Supra) ; Loke vs. Inspector General of Police (supra).

It must be said also that issues formulated from incompetent grounds of appeal “are also incompetent. Also, where an incompetent ground of appeal is based on an issue with a competent ground of appeal the incompetent ground of appeal conterminates the issue argued on the competent ground of appeal and renders the issues based on competent ground of appeal impotent and incompetent. See Loke vs. I.G.P. (Supra).

For the avoidance of doubt. I would like to reiterate that where all the grounds of appeal filed as the case in hand are found to be incompetent, it follows that the issues formulated for determination of the appeal in the appellant’s brief of argument would be incompetent and consequently the whole appeal is liable to be struck out. See Bee Hotels vs. Allied Bank (Nig) Ltd (1996) 8 N.W.L.R. (pt. 465) 176.

In the light of the foregoing, I uphold the preliminary objection of the respondents that this appeal

is incompetent and it is therefore liable to be struck out. It is accordingly struck out.

I award N3.000.00 costs in favour of the respondents.

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Other Citations: (2001)LCN/0941(CA)