IKOYO & ORS v. OGBOGBOYIBO & ORS (2020)

IKOYO & ORS v. OGBOGBOYIBO & ORS

(2020)LCN/14582(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, September 07, 2020

CA/AS/360/2018

RATIO

PLEADINGS: OMNIBUS GROUND OF APPEAL.

This generally speaking, is said to imply that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified. Additionally, it covers cases where there is no or acceptable evidence to support the findings of the trial Court. It also concerns situations in which when the evidence adduced by the appellant is weighed on the imaginary scale against that adduced by the respondent, the evidence in favour of the appellant, qualitatively speaking, outweighs that adduced on behalf of the respondent to the extent that the judgment given in favour of the respondent can be said to be against the totality of the evidence adduced before the trial Court. See…..”
See also the case of AKINLAGUN V. OSHOBOJA (2006) LPELR-348(SC) wherein the Supreme Court stated thus: –
“….. An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See… It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground.
……
In Mogaji v. Odofin (1978) 4 SC. 91 at 93, this Court per Fatayi-Williams, JSC (as he then was) held:
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. (italics mine)”
And on the implication or effect of an omnibus ground of appeal, this Court per Uwais, JSC (as he then was) in Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at 742 also held that:
“… An omnibus ground of appeal implies that the judgment of the 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.”
The Appellants argued their issue 2 at paragraphs 5.0-5.5 of their brief of argument. Having read the portion of the brief of the Appellants referred to above painstakingly, I cannot but say that the Appellants engaged in a total inappropriate use of the omnibus ground and the issue distilled therefrom. I will re-produce some of the submissions of the Appellants which lend credence to this view. Such paragraphs include paragraph 5.2 which reads: –
“At this point, we respectfully submitted (sic) that the learned Trial Judge did not properly consider and evaluate the affidavit evidence of the Appellants and the Declaratory Relief sought by the appellants before reaching its decision. For the purpose of clarity it is important to reproduce verbatim the lower Court (sic) reasons for the judgment which can be found at page 50 of the record (second paragraph of the judgment), the lower Court held as follows: –
“From the counter affidavit and Exhibit ‘A’ annexed, it seems there has been long legal battles between the Applicants and the Respondents. This suit is however concerned with whether the complain of the applicants can be addressed by way of fundamental human right (enforcement) rules as stated in this application.
It appears that what gave rise to this application is the sale of land to one Mr. Charity Emagbaren and the steps taken to protect the taken (sic) over of the land by tying red clothes with native chalk wherein it was alleged that 1st Respondent intend to depose her as the eldest woman and woman leader of the community.”
We submit that the lower Court did not consider and evaluate Exhibit DEA which is contained in the affidavit of the Appellants. It is very important at this stage to respectfully refer your lordships to Section 36(1) of the 1999 Constitution as amended which amounts to a breach of fair hearing of the fundamental rights of the appellants…”
Another paragraph considered relevant by me is paragraph 5.3 which reads thus: –
“Permit me my lords to re-produce the second lap of the reasons held by the learned trial Judge at page 50 (third paragraph thereof) of the record as follows:
“Having read through all the facts as presented by the Applicants and Respondents, the issues appear customary that can be determined by the customary Court. They seemed not to fall under the fundamental human rights enforceable by rules stated above.”
It is respectfully submitted that the conclusion of the learned trial Judge was too hasty and without proper consideration and evaluation of the parties before the trial Court. It is further submitted that the Respondents admitted the case of the Appellants in their counter affidavit evidence with a little difference save that the 1st Appellant was not ostracized.”
The last of the paragraph I consider relevant in order to show that the Appellants have misapprehended the purpose of the omnibus ground of appeal and its utility, is paragraph 5.5 wherein the Appellants stated thus: –
“In the last paragraph of the judgment, at page 50 thereof of the record, we submit that the learned trial Judge also hastily concluded on the affidavit evidence of the parties when he held thus:
“Embodied in all the facts deposed to, the cause of action are on trespass and criminal case. It is my humble view that this forum is inappropriate to deal with the complain of the Applicants.”
We submit that if the learned trial Judge had properly considered and evaluated all other paragraphs of the affidavit evidence of both parties in this case, the learned trial Judge would have arrived at a different conclusion. We further submit that the judgment of the lower Court is against the weight of evidence in the case.”
The position of the law is settled that any particular or specific finding made by a trial Court in its judgment and with which an appellant is aggrieved, must be the subject of a distinct ground of appeal. It is equally the law that any particular or specific misdirection, a trial Court has engaged in, in its judgment must be the subject of a distinct ground alleging such misdirection. In this regard see the case of SOSANYA V. ONADEKO (2005) LPELR-3105(SC) wherein the Supreme Court, dwelling on the issue of error of law and misdirection stated thus: –
“ …. it is, I think, desirable to refer to some of the cases where similar questions on the meaning and effect of misdirection and error in law in a ground of appeal have been considered in this Court. It is in my respectful view apposite to begin the consideration of the cases with Chidiak v. Laguda (1964) 1 All NLR 160, 162-163
Time and again do cases come up on appeal in which matters are treated in the grounds of appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray v. Ford (1896) A. C. 44 at 50 Lord Watson said that: –
‘Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that Tribunal.’
“This is done by the trial Judge directing the jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the Judge sits without a jury, he misdirects himself if he misconceives the issues, or summaries (sic) the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal alleging that the judgment was against the weight of evidence. See also the cases of ABISI V. EKWEALOR (1993) LPELR-44(SC) and OYINLOYE V. ESINKIN (1999) LPELR-2886(SC) amongst many others.
The Appellants as can be seen clearly engaged in arguing in paragraphs 5.0-5.5 of their brief of argument (some of the paragraphs have been re-produced hereinbefore) against specific or particular findings made by the lower Court in its judgment, (without any support in any ground of appeal) as an error or errors of law; or misdirection(s) and even as a ground of error in law and misdirection (which decided cases have held can be countenanced in the interest of justice). The Appellants having been found to have done as stated above, they have thereby placed themselves in a position wherein issue 2 under consideration must be and is hereby resolved against them. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

RATIO

PLEADINGS: WHEN A FUNDAMENTAL RIGHT VIOLATION CAN NOT STAND ON IT OWN.

The law is clear that when an alleged violation of a person’s fundamental right is in issue, and the said violation is not one that stands on its own, but a flow out or flow from some other cause(s) of action, then the matter is not suited for fundamental rights procedure proceedings, but by another type of proceedings and by the Rules of Court of the lower Court (Order 3 Rule 2), should be commenced by way of writ of summons. In this regard see amongst many others the cases of TUKUR V. GOVT OF TARABA STATE (1997) LPELR-3273(SC), GOV OF KOGI STATE V. YAKUBU (2001) LPELR-3177(SC) and WAEC V. ADEYANJU (2008) LPELR-3467(SC). This position is applicable to the instant case notwithstanding the manner in which the reliefs sought by the Appellants as couched or crafted have not succeeded in concealing the fact that the cause of action of the Appellants is founded on or flow from a land dispute. No party should be allowed to try to steal a match on another in respect of a dispute relating to land by resorting to the use of the fundamental rights procedure proceedings. I cannot but however observe that the order of dismissal of the Appellants’ motion in the judgment of the lower Court cannot be anything but one striking out the Appellants motion. This is because the lower Court having before making the order dismissing the application said that ‘it is my humble view therefore that this forum is inappropriate to deal with the complain (sic) of the Appellants’, was in effect saying that it lacked the jurisdiction to entertain the Applicant’s matter for having not been initiated by the appropriate procedure. No Court having regard to the settled position of the law can properly dismiss a case which it finds itself as lacking the jurisdiction to entertain. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MRS. EYERANATOR IKOYO 2. MR. SUNDAY IKOYO 3. OKIEMUTE IKOYO 4. OGHENEOVO IKOYO 5. DANIEL IKOYO 6. MORRISON IKOYO 7. MRS. OKIODON AMUGEH 8. SYLVESTER IKOYO APPELANT(S)

And

MR. JOHN OGBOGBOYIBO 2. MR. SAMUEL OJOKOLO 3. MR. ARTHUR IKOYO 4. MR. ALFRED UGBO 6. MR. OSUME OSIJOLOMI 7. MRS. ONIYE QUEEN 8. MR. SIMON AKPOFUNURE RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 9/11/2017, by the High Court of Delta State presided over by Hon. Justice A.O. Omaogho (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively).

The Appellants as Applicants initiated the instant case by a motion on notice dated 3/7/2017 and filed on the same date. The motion was brought pursuant to Order 2 Rules 2, 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Section 34, 35(1), 37, 40, 41(1) and 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); and under the inherent jurisdiction of the lower Court. In the said motion, the Appellants prayed for the following orders: –
“1. A declaration that the removal of the 1st Applicant as the oldest woman and or leader of the women folk of Amuajomata Town, Elume Junction a place within the jurisdiction of this Honourable Court by the Respondents in connection with a piece or parcel of land situate as (sic) Amuajomata is an infringement of the 1st Applicant’s

fundamental rights as enshrined and guaranteed in Sections 34(1) and 40 of the 2011 Constitution of the Federal Republic of Nigeria (as amended).
2. A declaration that the 1st Applicant is still the oldest woman and or leader of the women folk of Amuajomata Town and cannot be removed by the 1st Respondent and or Respondents and their privies.
3. A declaration that the threat by the Respondents to take over or cease (sic) the inheritance or property of the 2nd to 8th Applicants all children of the 1st Applicant which they inherited from their late father lying and situate at Amuajomata Town by the Respondents and to ostracize the Applicants from the community in connection with a land matter/dispute which the said land is lying at Amuajomata is an infringement of the Applicants fundamental rights as enshrined and guaranteed in Sections 34, 37, 40 and 41(1) of the 2011 Constitution of the Federal Republic of Nigeria (as amended).
4. A declaration that the threat to life of the 1st Applicant by the Respondents led by the 1st Respondent in connection with a land matter lying and situates (sic) at Amuajomata Town is an infringement of the 1st

Applicant’s fundamental rights as enshrined in Section 33(1) of the 2011 Constitution of the Federal Republic of Nigeria (as amended).
5. An order of injunction restraining the Respondents by themselves, their servants, agents, workmen and privies from further infringing the fundamental human rights of the Applicants herein.
6. An order directing the Respondents jointly and severally to pay to the Applicants the sum of Five Million (N5,000,000.00) for damages of the said infringement of the Applicants’ fundamental human rights.”

The reliefs sought by the Appellants as set out in the “Statement in Support of the Application” are word for word, the same with the orders sought in the motion on notice by which the instant case was initiated and which have been re-produced hereinbefore. The “grounds upon which the reliefs are sought” as set out in the statement in support of the application are: –
“(i) By the combined effect of Sections 33(1), 34(1)(a), 35(1), 37, 40 and 41(1) of the 2011 Constitution of the Federal Republic of Nigeria (as amended) no citizen of this country shall have his or

her life deprived or have his or her liberty, right to provide and family life, right to peaceful assembly and freedom of movement curtailed or restricted neither can any citizen be ostracized and or driven from a particular community by a group of persons and their property confiscated by any person or group of persons except as provided by the Constitution.
(ii) The action of the Respondents by the removal of the 1st Applicant as the leader of the women and plan to ostracize the Applicants and confiscate their properties offend the Applicants fundamental rights as enshrined by the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(iii) The Respondents have no right to deprive the Applicants of their fundamental human rights or to harass and disturb the Applicants and especially the 1st who is a senior citizen of this country in any way.
(iv) The Respondents have no right to deprive to threaten the life of the Applicants nor confiscate the properties of the Applicants for any reason whatsoever.”

The motion has a 21-paragraph affidavit setting out the facts in support of the application; as well as a written address

in support of the application. In resisting the Appellants’ motion on notice, the Respondents filed a 19-paragraph counter affidavit deposed to by the 1st Respondent and in which it was disclosed that the process in question was filed with the consent and authority of the other Respondents. There is also a written address in support of the counter affidavit in the records of appeal (hereafter to be simply referred to as “the records”). The Appellants filed a 22-paragraph reply to counter affidavit and a reply on point of law. The lower Court delivered its judgment in the Appellants’ motion on 9/11/2017. Therein, the lower Court having referred to the processes filed by the parties stated on page 50 of the records thus: –
“From the counter affidavit and Exhibit ‘A’ annexed, it seems there has been long legal battles between the Applicants and the Respondents. This suit is however concerned with whether the complain (sic) of the applicants can be addressed by way of fundamental human right (enforcement) rules as stated in this application.
It appears that what gave rise to this application is the sale of land

to one Mr. Charity Emagbaren and the steps taken to protect the taken (sic) over of the land by tying red clothes with native chalk wherein it was alleged that 1st Respondent intend to depose her as the eldest woman and woman leader of the community.
Having read through all the facts as presented by the Applicants and Respondents, the issues appear customary that can be determined by the customary Court. They seemed not to fall under the fundamental human rights enforceable by rules stated above.
Embodied in all the facts deposed to, the cause of action are (sic) on trespass and criminal case. It is my humble view that this forum is inappropriate to deal with the complain (sic) of the Applicants.
Consequently, this application is dismissed with cost of N10,000.00 in favour of the Respondents.”

Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 14/12/2017, a notice of appeal bearing the same date. The notice of appeal contains two grounds of appeal. The grounds of appeal in question and their respective particulars read: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“GROUNDS OF APPEAL
(i) GROUND 1 (ONE)
The learned trial Judge erred in law when he failed to appreciate the case put forward by the Appellants i.e. the flagrant infringement on their fundamental human right by Respondents and thereby came to a wrong judgment.
PARTICULARS OF ERRORS
(i) Whereas there are acts of obvious infringement of the Fundamental Human Rights of the Appellants, the trial Judge held that the matter is a customary issue which can be determined by the Customary Court and did not fall under the Fundamental Human Right enforcement rules.
(ii) The trial Judge misunderstood and misinterpreted the facts deposed to by the Appellants and held that the facts disposed (sic) to come under the realm of trespass and criminal case.
(ii) GROUND 2 (TWO)
The judgment is against the weight of the affidavit evidence before the Court.”

The reliefs the Appellants seek from this Court in their notice of appeal, are to the effect that: (a) the appeal be allowed; (b) setting aside of the judgment of the lower Court; and (c) granting of the reliefs sought by them (Appellants) in their motion on notice.

The appeal was entertained on 9/6/2020. D.E. Agbaga settled the Appellants’ brief of argument dated 13/7/2018 and filed on the same date, but deemed as properly filed and served on 25/5/2019. Learned counsel adopted and relied on the said brief in urging the Court to allow the appeal.

G.U. Kerewi settled the Respondents’ brief of argument dated 19/6/2019 and filed on the same date. Learned counsel equally adopted and relied on the said brief of argument in urging the Court to dismiss the appeal.

The issues formulated for the determination of the appeal in the Appellants’ brief of argument are: –
“1. Having regard to the affidavit evidence before Court whether the Appellants have not established an infringement of their Fundamental Human Right.
OR
Having regard to the affidavit evidence before Court whether the learned trial Judge was right when he held that the action does not come within the pursue of Fundamental Human Right application.
2. Whether the Court below properly evaluated the affidavit evidence before it (framed from Ground 2).”

The Respondents in their brief of argument stated: –

“The Appellants have formulated two issues for determination which we also adopt; namely:
1. Having regard to the affidavit evidence before Court whether the learned trial Judge was right when he held that the action does not come within the purview of Fundamental Human Right application.
2. Whether the Court below properly evaluated the affidavit evidence before it (framed from ground 2).”

Ex-facie the issues for determination of the appeal as re-produced above, it is clear that the Appellants (whether deliberately or otherwise) did not tie the two issues under the heading “1” above, to either of the two grounds of appeal in the notice of appeal. I am however of the considered view, that the irresistibly inference from the disclosed fact that Appellants’ issue 2, is expressly stated to have been distilled from ground 2 in the notice of appeal, is that the two issues under the heading “1”, afore-mentioned above, were distilled from ground one in the notice of appeal. Having read the briefs of argument of the parties, I consider it pertinent to state that I am of the firm view that the

Appellants deliberately did not tie their issues under reference to ground one in the notice of appeal believing that this would go unnoticed by the Court. The Respondents clearly fell for this strategy as they simply decided to elect one of the two issues in question they conceived was proper for them to respond to. This is even based on the assumption that the Respondents painstakingly read the issues formulated for the determination of the appeal by the Appellants in their brief of argument, in the first place. Suffice it to say that having regard to the manner in which the Appellants couched the “issues” in question, they have loudly engaged in formulating two issues from a ground of appeal, i.e. ground 1. This is against the backdrop that their second issue having been expressly tied to ground 2 in the notice of appeal, it requires no serious or complicated thought process to conclude that the issues under the heading “1” (supra), were distilled from ground 1 in the notice of appeal.
I cannot but say that the position I have expressed that the Appellants formulated or distilled two separate issues from ground 1 in the notice

of appeal, is fortified by the meaning of the word “or” when used in statutes, legal documents, etc;. The word “or” implies separateness of the matters or ideas to which the word “or” relate. In my considered view, this much is clear from the case of ABUBAKAR, GCON V. YAR’ADUA (2008) LPELR-51(SC), (2008) 12 SC (Pt. II) 1, (2008) 1 FWLR 601 SC; wherein the Supreme Court dwelling on the meaning of the word “or” stated amongst others thus: –
“The word “or” is defined in Black’s Law Dictionary, Sixth Edition in the following terms: “A disjunctive participle used to express an alternative or to give a choice of one among two or more things.” In the case of Aruba v. Aiyeleru (1993) 3 NWLR (Pt. 208) 126 at 141-142, this Court in construing the word “or” (sic) thus:
“….The power given to the Court under the rule is to either strike out or amend, the word “or” having a disjunctive connotation, It does not give the Court the power to strike out and amend…..”
Also in the case of Abia State University v. Anyaibe (1996) 3 NWLR (Pt. 439) 646 at 661 ……”

In the case cited above and other cases cited therein, the Supreme Court not only applied the meaning of the word “or” as provided by the Black’s Law Dictionary but also made reference to the interpretation to be accorded the said word as contained in the Interpretation Act, Cap. C23, which declares itself as binding on the States. See Sections 18(3) and 37(3) of the said Act.
As it has been said hereinbefore, the Respondents clearly elected the second of the two issues set out under the heading “1” in the Appellants’ brief of argument. While the Respondents given their peculiar understanding of the law could do this, I however do not think that the Court should be dissuaded from doing the needful where an appellant decides to swim against settled position(s) of the law and formulates two issues from a ground of appeal, because the Respondents herein have elected one of the two issues formulated by the Appellants, as the issue they have conceived to merit response. The consequences of some infractions committed by an appellant in pursuing his appeal have remained sacrosanct as it were, ever since the appellate Courts in this

country have enunciated the position of the law to be that appeals are argued on issues and not on ground(s) of appeal. Some of the consequences of an appellant committing infraction(s) against these settled positions of the law are: –
1. That issue(s) not distilled from any ground(s) of appeal is/are liable to be struck out;
2. That not more than an issue is to be formulated from a ground of appeal and that where this is done, the issues in question are liable to be struck out. See amongst many others, the case of BAKARE V. DADA (2016) LPELR-41367(CA) wherein this Court per Danjuma, JCA; stated thus: –
“The learned justice of the Apex Court stated thus:
“This Court has discouraged the practice of splitting a ground of appeal into a number of issues. See A. G. Bendel State V. Aideyan (1989) 4 NWLR (pt. 118) 646: Adelaja V. Fanoiki (1990) 2 NWLR (pt. 131) 137:Agu V. lkewibe (1991) 3 NWLR (pt. 180) 385. The splitting of a ground into more than one issue renders the issues wider than the ground complained of. The purpose of the formulation of issues for determination is to enable the parties narrow the issues in the grounds of appeal

filed in the interest of accuracy, clarity and brevity. See Ogbuanyinya V. Okudo (No2) (1990) 4 NWLR (pt. 146) 551.”
Issues 1 and 2 of the respondent having emanated from the only ground subsisting ground of appeal are incompetent and are hereby struck out.”
The above being settled positions of the law, and the Appellants having decided to formulate two issues from ground one in the notice of appeal, it becomes apparent that the said issues having been distilled from ground one in the notice of appeal, must be struck out for being incompetent. A fortiori, the argument based on the incompetent issues and which were argued together in the Appellants’ brief of argument must also be struck out as having no proper basis or foundation. The issues distilled from ground 1 in the notice of appeal and argued together in the Appellants’ brief of argument, are accordingly struck out.

This leaves the Court with only issue 2 which was distilled from ground 2 in the notice of appeal, to resolve. Ground 2 in the notice of appeal is what is known as “the omnibus ground of appeal” in civil appeal. The law is settled as to

what “the omnibus ground of appeal” in civil appeal entails. It is a settled position of the law that an omnibus ground in civil appeal cannot be used to challenge any specific or particular finding of a trial Court. Ipso facto and/or a fortiori, any issue couched from an omnibus ground in a civil appeal cannot be used either expressly or clandestinely to challenge any particular or specific finding of fact(s) made by a trial Court that has not been specifically appealed against. In this regard, see the case of SHA V. KWAN (2000) LPELR-3031(SC) wherein the Supreme Court stated thus: –
“I will now turn to the second arm of the issue raised for determination in this appeal. This is whether or not the issue formulated by the Court of Appeal arises from the general or the omnibus ground of appeal filed.
In this connection, it will be necessary to examine briefly the meaning and impact of the general or the omnibus ground of appeal. This generally speaking, is said to imply that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial Court either wrongly accepted

or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified. Additionally, it covers cases where there is no or acceptable evidence to support the findings of the trial Court. It also concerns situations in which when the evidence adduced by the appellant is weighed on the imaginary scale against that adduced by the respondent, the evidence in favour of the appellant, qualitatively speaking, outweighs that adduced on behalf of the respondent to the extent that the judgment given in favour of the respondent can be said to be against the totality of the evidence adduced before the trial Court. See…..”
See also the case of AKINLAGUN V. OSHOBOJA (2006) LPELR-348(SC) wherein the Supreme Court stated thus: –
“….. An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See… It therefore follows that for a complaint on a finding of fact on a specific issue,

substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground.
……
In Mogaji v. Odofin (1978) 4 SC. 91 at 93, this Court per Fatayi-Williams, JSC (as he then was) held:
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. (italics mine)”
And on the implication or effect of an omnibus ground of appeal, this Court per Uwais, JSC (as he then was) in Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at 742 also held that:
“… An omnibus ground of appeal implies that the judgment of the 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.”
The Appellants argued their issue 2 at paragraphs 5.0-5.5 of

their brief of argument. Having read the portion of the brief of the Appellants referred to above painstakingly, I cannot but say that the Appellants engaged in a total inappropriate use of the omnibus ground and the issue distilled therefrom. I will re-produce some of the submissions of the Appellants which lend credence to this view. Such paragraphs include paragraph 5.2 which reads: –
“At this point, we respectfully submitted (sic) that the learned Trial Judge did not properly consider and evaluate the affidavit evidence of the Appellants and the Declaratory Relief sought by the appellants before reaching its decision. For the purpose of clarity it is important to reproduce verbatim the lower Court (sic) reasons for the judgment which can be found at page 50 of the record (second paragraph of the judgment), the lower Court held as follows: –
“From the counter affidavit and Exhibit ‘A’ annexed, it seems there has been long legal battles between the Applicants and the Respondents. This suit is however concerned with whether the complain of the applicants can be addressed by way of fundamental human right (enforcement)

rules as stated in this application.
It appears that what gave rise to this application is the sale of land to one Mr. Charity Emagbaren and the steps taken to protect the taken (sic) over of the land by tying red clothes with native chalk wherein it was alleged that 1st Respondent intend to depose her as the eldest woman and woman leader of the community.”
We submit that the lower Court did not consider and evaluate Exhibit DEA which is contained in the affidavit of the Appellants. It is very important at this stage to respectfully refer your lordships to Section 36(1) of the 1999 Constitution as amended which amounts to a breach of fair hearing of the fundamental rights of the appellants…”
Another paragraph considered relevant by me is paragraph 5.3 which reads thus: –
“Permit me my lords to re-produce the second lap of the reasons held by the learned trial Judge at page 50 (third paragraph thereof) of the record as follows:
“Having read through all the facts as presented by the Applicants and Respondents, the issues appear customary that can be determined by the customary Court. They seemed

not to fall under the fundamental human rights enforceable by rules stated above.”
It is respectfully submitted that the conclusion of the learned trial Judge was too hasty and without proper consideration and evaluation of the parties before the trial Court. It is further submitted that the Respondents admitted the case of the Appellants in their counter affidavit evidence with a little difference save that the 1st Appellant was not ostracized.”
The last of the paragraph I consider relevant in order to show that the Appellants have misapprehended the purpose of the omnibus ground of appeal and its utility, is paragraph 5.5 wherein the Appellants stated thus: –
“In the last paragraph of the judgment, at page 50 thereof of the record, we submit that the learned trial Judge also hastily concluded on the affidavit evidence of the parties when he held thus:
“Embodied in all the facts deposed to, the cause of action are on trespass and criminal case. It is my humble view that this forum is inappropriate to deal with the complain of the Applicants.”
We submit that if the learned trial Judge had properly

considered and evaluated all other paragraphs of the affidavit evidence of both parties in this case, the learned trial Judge would have arrived at a different conclusion. We further submit that the judgment of the lower Court is against the weight of evidence in the case.”
The position of the law is settled that any particular or specific finding made by a trial Court in its judgment and with which an appellant is aggrieved, must be the subject of a distinct ground of appeal. It is equally the law that any particular or specific misdirection, a trial Court has engaged in, in its judgment must be the subject of a distinct ground alleging such misdirection. In this regard see the case of SOSANYA V. ONADEKO (2005) LPELR-3105(SC) wherein the Supreme Court, dwelling on the issue of error of law and misdirection stated thus: –
“ …. it is, I think, desirable to refer to some of the cases where similar questions on the meaning and effect of misdirection and error in law in a ground of appeal have been considered in this Court. It is in my respectful view apposite to begin the consideration of the cases with Chidiak v. Laguda (1964) 1 All

NLR 160, 162-163
Time and again do cases come up on appeal in which matters are treated in the grounds of appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray v. Ford (1896) A. C. 44 at 50 Lord Watson said that: –
‘Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that Tribunal.’
“This is done by the trial Judge directing the jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the Judge sits without a jury, he misdirects himself if he misconceives the issues, or summaries (sic) the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be

described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal alleging that the judgment was against the weight of evidence.”
See also the cases of ABISI V. EKWEALOR (1993) LPELR-44(SC) and OYINLOYE V. ESINKIN (1999) LPELR-2886(SC) amongst many others.
The Appellants as can be seen clearly engaged in arguing in paragraphs 5.0-5.5 of their brief of argument (some of the paragraphs have been re-produced hereinbefore) against specific or particular findings made by the lower Court in its judgment, (without any support in any ground of appeal) as an error or errors of law; or misdirection(s) and even as a ground of error in law and misdirection (which decided cases have held can be countenanced in the interest of justice). The Appellants having been found to have done as stated above, they have thereby placed themselves in a position wherein issue 2 under consideration must be and is hereby resolved against them.

Without prejudice to the conclusion reached above in respect of

Appellants’ issue 2, I cannot but note that inasmuch as one of the implications of the omnibus ground of appeal in civil appeals, is that “the judgment of the 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”, and as the Appellants have not suggested in the least that the evidence of the Respondents accepted and acted on by the lower Court is not as disclosed in the counter affidavit of the said Respondents, there is absolutely no basis upon which this Court can properly find the judgment of the lower Court to be against the weight of evidence before it. This is particularly so (and as argued by the Respondents) as the reliefs sought by the Appellants glaringly show that the alleged breach of the Appellants’ fundamental right(s) is inexorably tied to a land dispute. It is of no moment that the lower Court expressed the view that the matter is most suited for adjudication before a customary Court (and there is even no appeal against

this particular finding) and the lower Court thereby presenting itself as a Court that cannot entertain matter(s) hinged on custom. The germane fact/issue, is that the law is clear that when an alleged violation of a person’s fundamental right is in issue, and the said violation is not one that stands on its own, but a flow out or flow from some other cause(s) of action, then the matter is not suited for fundamental rights procedure proceedings, but by another type of proceedings and by the Rules of Court of the lower Court (Order 3 Rule 2), should be commenced by way of writ of summons. In this regard see amongst many others the cases of TUKUR V. GOVT OF TARABA STATE (1997) LPELR-3273(SC), GOV OF KOGI STATE V. YAKUBU (2001) LPELR-3177(SC) and WAEC V. ADEYANJU (2008) LPELR-3467(SC). This position is applicable to the instant case notwithstanding the manner in which the reliefs sought by the Appellants as couched or crafted have not succeeded in concealing the fact that the cause of action of the Appellants is founded on or flow from a land dispute. No party should be allowed to try to steal a match on another in respect of a dispute relating to land by

resorting to the use of the fundamental rights procedure proceedings. I cannot but however observe that the order of dismissal of the Appellants’ motion in the judgment of the lower Court cannot be anything but one striking out the Appellants motion. This is because the lower Court having before making the order dismissing the application said that ‘it is my humble view therefore that this forum is inappropriate to deal with the complain (sic) of the Appellants’, was in effect saying that it lacked the jurisdiction to entertain the Applicant’s matter for having not been initiated by the appropriate procedure. No Court having regard to the settled position of the law can properly dismiss a case which it finds itself as lacking the jurisdiction to entertain.

In the final analysis, the instant appeal is patently or plainly unmeritorious and it fails. The said appeal is dismissed.
I make no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft before now, the lead Judgment delivered by my Lord Ayobode Olujimi Lokulo-Sodipe, JCA in this appeal and agree entirely

that the appeal is without merit.

The trial Court clearly lacked the jurisdiction to entertain the matter relating the reliefs sought under the Fundamental Rights Enforcement Procedure Rules 2009, as brought by the Applicant/Appellant herein.

A scrutiny of the reliefs claimed clearly shows that an entitlement to the occupation of a parcel of land was at the core of the claims. Being the main claim or relief, the law is that the claimant shall come to Court by the normal process of a writ of summons, pursuant to which pleadings shall be ordered. In the same vein, the prayer for a declaration that there was a threat to life was a cause of action covered by tort of assault, intimidation. In the same token, the declaration that as the oldest person in the community, one cannot be removed by the Respondents/privies is a claim that can be ventilated by the pleadings that disclose a cause of action and a response in a statement of defence before the matter is heard on the general cause list of a Court of law.
In the circumstances of the aforesaid, whatever infraction of a fundamental right that occurs as a result of the violations of legal rights or

claims to entitlement as made can only be seen as an incidental violation of right and relief, which cannot be enforced under the fundamental rights enforcement procedure Rules, 2009 which is a sui generis procedure.

The claim of the reliefs of damages and injunction are consequential remedies, just as the declaration sought and are awardable at the successful ventilation of the principal claims which are cognizable by the ordinary process of a writ of summons. The suit, not having been instituted by due process of law, robs that Court of jurisdiction. See Madukolu vs Nkemdilim (1962) ALL NCR; Okonkwo V. CBN (2012) ALL FWLR (pt 605) 293. The trial Court was right in striking out the case; as the worst was a dismissal which it could not order, not having jurisdiction to so do as the case was not legally before it. The Appellant, having not come to the Court by due process of law, the trial Court could not therefore put the matter in the general cause list and order for the issuance of a writ to summons, as the Court is not a party to the matter, but an arbiter.
I concur.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to

read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.
I too find the appeal unmeritorious and it fails. The appeal is hereby dismissed.
I also abide by all consequential orders made in the lead Judgment.

Appearances:

E. Agbaga For Appellant(s)

U. Kerewi For Respondent(s)