SAKA ATUYEYE & ORS. V. EMMANUEL O. ASHAMU
(1987) LCN/2305(SC)
In the Supreme Court of Nigeria
Friday, November 20, 1987
Case Number: SC. 43/1986
JUSTICES:
DAHUNSI OLUGBEMI COKER, JUSTICE, SUPREME COURT
ADOLPHUS GODWIN KARIBI-WHYTE, JUSTICE, SUPREME COURT
ANTHOY NNAEMEZIE ANIAGOLU, JUSTICE, SUPREME COURT
SAIDU KAWU, JUSTICE, SUPREME COURT
CHUKWUDIFU AKUNNE OPUTA, JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
SAKA ATUEYE AMUSA SALAKO SUNMOLA ATUYEYE MURI AWOYEMI FASASI SALAKO
AND
RESPONDENTS
EMMANUEL O. ASHAMU
RATIO
WHETHER THE PROPER GROUND AGAINST THE FINDINGS OF FACT IS THE OMNIBUS GROUND THAT THE “JUDGMENT IS AGAINST THE WEIGHT OF 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.” PER COKER, J.S.C.
THE NATURE OF OMNIBUS GROUND OF APPEAL
“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”. PER COKER, J.S.C.
ANY GROUND OF APPEAL ALLEGING A MISDIRECTION OR ERROR IN LAW MUST SPECIFY THE NATURE OF THE ERROR AND GIVE SUBSTANTIAL PARTICULARS OF THE ERROR OR MISDIRECTION
Any ground of appeal alleging a Misdirection or an Error in Law must in addition to quoting the passage where the misdirection or error was alleged to have occurred, specify the nature of the error and give full and substantial particulars of the alleged error or misdirection. It is not enough to merely allege an error or a misdirection. See Adeniji & Anor. v. Disu (1958) 3 F.S.C. 104; Kweku Mensah & Ors. v. The King (1951) 13 W.A.C.A. 140: R. v. Jack Fielding (1938) 26 CR App. R. 211. In the case of Augustus Stanely Wyman (1918) 13 CR App. R. 163 the English Court of Appeal per Darling, J. at p.165 emphasized that:-
“The Court wishes it to be understood that in future, substantial particulars of misdirection or of other objections to the summing up must always be set out in the notice of appeal. …. “
(Italics is mine). PER OPUTA, J.S.C.
DISTINCTION BETWEEN AN ALLEGATION THAT A JUDGEMENT IS AGAINST THE WEIGHT OF EVIDENCE AS A GOUND OF APPEAL IN A CIVIL APPEAL AND IN A CRIMINAL APPEAL THAT THE JUDGEMENT IS UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE
That there is a clear distinction between an allegation that “the judgment is against the weight of evidence” as a ground of appeal in a civil appeal as opposed to a criminal appeal was brought out by the per curiam observation of the Federal Supreme Court in Elijah Okezie v. The Queen (1963) 1 All N.L.R. 1 at p.3 viz:-
“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.”
A civil case is decided on the balance of probability. The trial Judge has to weigh the evidence on the one side against the evidence on the other side and look at his imaginary scale and find out which evidence out-weighs the other. In such an exercise the weight of evidence on each side becomes a determining factor; the other factor being the probabilities which on the whole of the evidence on the Plaintiffs side weighs more than the evidence for the Defence then naturally the plaintiff ought to win. If inspite of that, the Plaintiff loses then the judgment is obviously against the relative weights of the evidence. Then again the losing party can appeal on the ground that the judgment is against the weight of evidence. PER OPUTA, J.S.C.
COKER, J.S.C. (Delivering the Leading Judgment): 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.
ANIAGOLU, J.S.C. (Presiding): I have had a preview of the ‘Reasons for Judgment’ just delivered by my learned brother, Coker, J.S.C., and I am in agreement with his reasoning and conclusion.
It was for those reasons that I also dismissed the appeal on 4th November, 1986.
KARIBI.WHYTE, J.S.C.: I have had a preview of the judgment of my learned brother, Coker J.S.C. in this appeal, I agree with his reasoning and conclusions. I only wish to add to the reasons so ably, lucidly and comprehensively stated, my own reasons for agreeing. The only ground of appeal relied upon and argued in this Court related to the competence of the appeal before the Court below. It reads thus:-
GROUNDS OF APPEAL
“(1) ERROR IN LAW:
The learned appeal Judges erred in law in assuming jurisdiction over the appeal when they held that the appeal from the High Court, Lagos to the Court of Appeal was competent in the absence of any valid notice and/or ground of appeal.
PARTICULARS OF ERROR
(a) The 1st, 2nd and 3rd grounds of appeal alleging errors in law and misdirection as highlighted in the Notice of Appeal dated 15th April, 1980 and filed on 23rd April, 1980 on behalf of the respondent herein were in breach of Order 3 Rule 2(2) of the Court of Appeal Rules and therefore INVALID.
The 4th ground is INAPPROPRIATE as a ground of appeal in civil proceedings and was in breach of Order 3 Rule 2(4) of the Court of Appeal Rules.
(b) The purported amendment or substitution of the said INVALID ground as per the respondent’s application dated 5th February 1985 could not cure the defect in the grounds of appeal as the time for filing the Notice of Appeal had expired and No extension of time for filing same was neither applied for nor granted by the Court of Appeal.
(c) The learned appeal Judges disregarded the Supreme Court decision in the case of Awhinawhi & Another vs. Chief Oteri & Others (1984) 5 SC p.38 cited by the appellants on these issues.”
Mr. Oseni, Counsel for the Appellants abandoned the second ground of appeal. I therefore do not consider it necessary to reproduce the ground. Counsel to the parties filed their briefs of argument which they relied upon in their oral argument before us. The questions for determination in this appeal were formulated differently by both Counsel.
(a) Whether there was a valid notice of appeal before the Court of Appeal, and, if not whether the Court below had jurisdiction to hear and determine the appeal before it.
(b) Whether the amended grounds of appeal filed out of time and without leave of the lower court extending the time to do so could cure the defect
(c) Even if the notice of appeal was so defective and liable whether appellants had not waived their rights to insist on the appeal being struck out.
(d) Whether this court was competent to extend time to appeal if this was necessary in the circumstances.
Since (a) was sufficient to determine the appeal I consider the other issues formulated unnecessary for the purpose of this appeal. Counsel for the appellants submitted that the appeal before the court below was incompetent on the ground that the 4th ground of appeal which read,
“The judgment was unreasonable and cannot be supported having regard to the weight of evidence,
was not in accordance with Order 3 r.2(4) of the Court of Appeal Rules, 1981 and the judgment of this court in Chief J.O. Awhinawhi & anor. v. E Chief S. E. Oteri & Ors (1984) 5 S.C. 38, a proper ground of appeal. Accordingly, the judgment was a nullity. Having abandoned the second ground of appeal, and considering the particulars of error filed the sheet anchor of this appeal is the alleged incompetence because of the formulation of the ground of appeal. Mr. Oseni stuck tenaciously to the dictum of Eso, J.S.C. in Chief Awhinawhi & Anor. v. Chief Oteri & Ors. (supra) where my learned brother Eso, J.S.C. was reported to have said; at p.41,
“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.”
It is pertinent to set down the provisions of Order 3 Rule 2(2)(4) of the Court of Appeal Rules 1981 relied upon by counsel for the Appellant. It is as follows-
“(2) If the grounds of appeal allege misdirection or error in law the particulars and nature of the misdirection or 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 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.”
These rules which relate to appeals in civil cases are directed against (1) appeals on grounds of law, Order 3 Rule 2(2), and (2) grounds which are vague and expressed in general terms thereby disclosing no reasonable ground of appeal- Order 3 rule 2(4). This last mentioned sub-rule expressly saves from invalidity appeals in civil cases on the ground that “The judgments is against the weight of evidence.” In construing the provisions of a statute where the words are clear and unambiguous it is the words used that govern,It is not what the court or a Judge says the provision means. In Goodrich v. Paisner (1957) AC.65 at p.88, Lord Reid said,
“No Court is entitled to substitute its words for the words of the act.”
The words of Order 3 Rule 2(4) are clear and unambiguous. It is unnecessary and indeed not allowed to resort to the meaning placed on the words by the Court as Mr. Oseni for the Appellants is straining to do. I am quite sure that the judgment of my learned brother Eso J.S.C. in the case cited was wrongly reported. I am unable to accept the view that as meticulous as he is for details, as careful as he is for correctness and exactitude, Eso J.S.C. could even in his dream commit such an elementary error in stating a very common and familiar proposition of the law. In this court as far back as 1962 the following decisions, to mention only these, have stated the principle clearly – Okezie v. The Queen (1963) 1 All NLR.1 at p.3. Akibu v. Opaleye (1974) 11 S.C. 189, Mobil Oil Nigeria Ltd. v. Coker (1975) 3 SC. 175; Odunfunade v. Rossek (1962) 1 All NLR. 98; Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 S.C. 291; Odiola & Ors. v. Gbadebo Coker (1981) 5 S.C 197.Alhaji A. O. Elias v. Chief Timothy Omo-bare (1982) 5 S.C. 25 atp.31.
I agree with the submission of Chief F.R.A. Williams, S.A.N. for the Respondent that grounds 1 and 3 of the grounds of appeal in the court below are ground of law and are perfectly valid. I also accept the submission, even aside from the ipsissima verba of Order 3 Rule 2(4) of the Court of Appeal Rules 1981, which saves grounds of appeal thus formulated by virtue of the provisions of section 222(b) of the Constitution 1979; by virtue of the provisions of section 221(2) of the Constitution, a ground of appeal so formulated was permissible. I have no doubts in my mind and on a proper construction of Order 3 Rule 2(4) of the Court of Appeal Rues 1981, that a ground of appeal formulated that the judgment is against the weight of evidence is a valid ground of appeal. This appeal is worthless and clearly lacks merit.
KAWU, J.S.C.: This appeal was dismissed on 4th November, 1986 and we reserved our reasons for doing so to today. I have had the opportunity of reading in draft the reasons for judgment just read by my learned brother, Coker, J.S.C. I am in complete agreement with those reasons and respectfully adopt them as mine. I have nothing more to add.
OPUTA, J.S.C.: When this appeal came up for hearing on Tuesday the 4th day of November, 1986, Mr. Oseni, learned counsel for the Appellants, said that he was abandoning all his grounds of appeal except ground 1. In fact he filed only 2 grounds of appeal as shown on pages 236 to 238 of the record of proceedings. Ground 2 was abandoned and was consequently struck out. He relied only on Ground 1. This ground complained:-
“1. Error in Law
The learned appeal Judges erred in law in assuming jurisdiction over the appeal when they held that the appeal from the High Court, Lagos to the Court of Appeal was competent in the absence of any valid notice and/or ground of appeal.
Particulars of Error
(a) The 1st, 2nd and 3rd grounds of appeal alleging errors in law and misdirection as highlighted in the Notice of Appeal dated 15th April, 1980 on 23rd April, 1980 on behalf of the respondent herein were in breach of Order 3 Rule 2(2) of the Court of Appeal Rules and therefore invalid. The 4th ground is inappropriate as a ground of appeal in civil proceedings and was in breach of Order 3 Rule 2(4) of the Court of Appeal Rules.
(b) The purported amendment or substitution of the said invalid ground as per the respondent’s application dated 5th February, 1985 could not cure the defect in the grounds of appeal as the time for filing the Notice of Appeal had expired and no extension of time for filing same was either applied for or granted by the Court of Appeal.
(c) The learned appeal Judges disregarded the Supreme Courts’ decision in the case of Awhinawhi & Another v. Chief Oteri & Others (1984) 5 S.C. p.38 cited by the appellants on this issue.”
Mr. Oseni seems to be on a strong wicket with regard to ground 2 of the grounds of appeal which the present Respondents, as Appellants, filed against the judgment of Jinadu, J. of the Lagos State High Court. Any ground of appeal alleging a Misdirection or an Error in Law must in addition to quoting the passage where the misdirection or error was alleged to have occurred, specify the nature of the error and give full and substantial particulars of the alleged error or misdirection. It is not enough to merely allege an error or a misdirection. See Adeniji & Anor. v. Disu (1958) 3 F.S.C. 104; Kweku Mensah & Ors. v. The King (1951) 13 W.A.C.A. 140: R. v. Jack Fielding (1938) 26 CR App. R. 211. In the case of Augustus Stanely Wyman (1918) 13 CR App. R. 163 the English Court of Appeal per Darling, J. at p.165 emphasized that:-
“The Court wishes it to be understood that in future, substantial particulars of misdirection or of other objections to the summing up must always be set out in the notice of appeal. …. ”
(Italics is mine)
In the Vincent Okorie & Ors. v. Philip Udom & Ors. (1960) 5 F.S.C. 162 at p.164 the Federal Supreme Court did not allow learned counsel for the Appellants to argue a ground of appeal alleging a misdirection but which did not “show in what respect the Judge misdirected himself.” Such a ground, it was held, “is worthless.” The ground was accordingly struck out.
Following the ratio decidendi in the cases mentioned above one will agree with Mr. Oseni that ground 2 of the grounds on which the Defendant (now Respondent in this Court) appealed against the judgment of the trial Court to the Court of Appeal was defective. If that was the only ground then the question will arise whether the Appellants before the Court of Appeal can by an amendment add to or substitute for that invalid “Notice and Grounds” new grounds remembering that ex nihilo nihil fir. Mr. Oseni then referred the Court to its decision in Chief J.O. Awhinawhi & Ors. v. Chief S.E. Oteri & Ors. (1984) 5 S.C. 38 where this Court held that where the notice of appeal filed in the Court of Appeal was defective in that there was no proper ground of appeal therein such defective notice of appeal cannot be cured by filing amended grounds out of time and without obtaining leave to do so. In such a situation, the Supreme Court will hold that there was no proper appeal before the Court of Appeal and set aside the purported judgment of that Court and restore the judgment of the Court of first instance as the only valid and subsisting judgment. The judgment of this Court in Awhinawhi’s case supra was unanimous. This is the credit side of the account. There is however a debit side.
The original grounds filed at p.111 of the record of proceedings also contained grounds 1, 3 and 4. Ground 4 complained that:-
“4. The judgment was unreasonable and cannot be supported having regard to the weight of evidence.”
Mr. Oseni did not question the merit of the case. He concentrated all his attack on the grounds of appeal filed by the Defendant who was the Appellant in the Court below. If either ground 4 or ground 1 or ground 3 above is a valid ground of appeal then Mr. Oseni is out of Court. The issue now narrows itself down to whether or not grounds 4, 1 and 3 above are valid grounds of appeal in civil cases.
I will deal with ground 4 first. In Samuel Aladesuru v. The Queen (1953) 3 W.L.R. 515: (1965) A.C. 49 the Privy Council dealt with a ground of appeal alleging that “the judgment is against the weight of evidence” and held that in order to succeed an appellant must show, in the words of the Statute, that the verdict is “unreasonable or cannot be supported having regard to the evidence.” It also held that it is not a sufficient ground of appeal to allege that “the verdict is against the weight of evidence.” The Privy Council gave as its reason the fact that the phrase “weight of evidence” is inaccurate and cannot properly be substituted for the words of the Statute namely the West African Court of Appeal Ordinance (Law of Nigeria 1948 C.229), SS.10, 11(1). In other words that Court was interpreting the provisions of Sections 10 and 11(1) of the West African Court of Appeal Ordinance stipulating one of the grounds of appeal available to an accused person in criminal cases. The Ordinance did not make the allegation that “the judgment is against the weight of evidence” a ground of appeal on the facts. In criminal cases therefore a ground of appeal alleging that “the judgment is against the weight of evidence” is both inaccurate and inelegant. But this notwithstanding, the appellate Court, in a proper case, will however overlook the inelegance or inaccuracy of that ground and review the facts if the justice of the case so requires. The case now on appeal to this Court happens to be a civil appeal and not a criminal appeal. Aladesuru’s case supra therefore does not apply to this appeal.
In my view it will be very wrong to apply the ratio decidendi of Aladesuru’s case supra to civil appeals. That there is a clear distinction between an allegation that “the judgment is against the weight of evidence” as a ground of appeal in a civil appeal as opposed to a criminal appeal was brought out by the per curiam observation of the Federal Supreme Court in Elijah Okezie v. The Queen (1963) 1 All N.L.R. 1 at p.3 viz:-
“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.”
A civil case is decided on the balance of probability. The trial Judge has to weigh the evidence on the one side against the evidence on the other side and look at his imaginary scale and find out which evidence out-weighs the other. In such an exercise the weight of evidence on each side becomes a determining factor; the other factor being the probabilities which on the whole of the evidence on the Plaintiffs side weighs more than the evidence for the Defence then naturally the plaintiff ought to win. If inspite of that, the Plaintiff loses then the judgment is obviously against the relative weights of the evidence. Then again the losing party can appeal on the ground that the judgment is against the weight of evidence.
In the case now on appeal to this Court. Ground 4 of the grounds of appeal filed by the Defendant/Applicant in the Court below (now Respondent in this Court) that “the judgment was unreasonable and cannot be supported having regard to the weight of evidence” has been attacked by Mr. Oseni as “inappropriate …. and in breach of Order 3 Rule 2(4) of the Court of Appeal Rules'” This Rule stipulates;-
“Order 3 Rule 2(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 motion or on application by the respondent.”
Ground 4 above is by no means vague, and it cannot be said that that ground “discloses no reasonable ground of appeal.” In fact it is the general ground envisaged by Order 3 Rule 2(4) above. The argument of Mr. Oseni now appears to be that if Ground 4 is that the judgment is against the weight of evidence” it will be in compliance with Order 3 Rule 2(4) above but because it contains the expression “unreasonable and cannot be supported having regard to” then it is inappropriate. This argument is chop logic and untenable. If a judgment is against the weight of evidence it is to that extent unreasonable. Furthermore to that extent also it cannot he supported having regard to the evidence. Ground 4 above may be verbose and prolix but it definitely disclosed a ground of appeal in civil cases. I will however reserve my comments on Chief Williams’ contention that “Nigerian law has diverged from English law in this regard and there is no justification for treating certain grounds as admissible only in one kind of proceedings but inadmissible in the other” because having held that ground 4 is a valid ground of appeal it is no longer necessary to enquire into the effect of the 1979 Constitution on the general grounds of appeal in criminal and civil cases.
Ground 2 at p.110 of the record alleged misdirection but gave no particulars of the alleged misdirection. Chief Williams, S.A.N., himself conceded that ground 2 for that reason was essentially defective and inappropriate as a ground of appeal. I have earlier on in these Reasons for judgment disposed of ground 2.
Ground 1 at p.110 of the record of proceedings complained that:-
“(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.
The trial Court has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which decision must inevitably be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty it commits an error of law. The party aggrieved can then appeal on the ground of error in law giving as his particulars of error the failure to properly assess or evaluate or appraise the evidence led by and on his behalf. All that Order 3 Rule 2(2) of the Court of Appeal Rules relied upon by Mr. Oseni in his objection requires is that a ground of appeal alleging error in law should clearly state the particulars and nature of the error. I agree that in practice, it is customary after stating “Error in Law” to follow that up with “particulars of the Error.” I do not think there is anything wrong in including the “Particulars of the Error” in the “Error” itself. The “particulars of the error” in ground 1 above was the failure of the trial Court to properly evaluate or appraise the evidence of the defence. We should here, bear in mind that there is a ground of appeal (ground 4) complaining that the decision is against the weight of evidence. This may mean that due weight was not given to the Defence evidence. The evaluation of evidence no doubt is the exclusive prerogative of the trial Court. But it should be the evaluation of the entire evidence and not of the evidence on one side to the utter disregard of evidence on the other side. The conclusions of a trial Judge will certainly be mistaken if they were not based on the totality of the evidence. It is again important to emphasise that the appellants did not argue this appeal on its merits. Rather they chose merely to attack the grounds of appeal as inappropriate or invalid. So the argument here is not whether ground 1 will succeed but rather whether it is a valid and arguable ground, I hold that it is.
Ground 3 at page 110 of the record of proceedings complained that
“(3) The learned trial Judge misdirected himself 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.”
(Italics mine)
It is the duty of the trial Judge to determine from the state of the pleadings where and on whom, the onus of proof generally and the onus of proof of particular issues lies. It is a question of law whether or not a trial Judge cast the onus of proof on the wrong party as well as whether or not the onus has been discharged by the party on whom it lies. If the Judge makes any mistake with regard to the onus of proof in a case, that mistake will be an error in law. If the trial Judge failed to direct his mind to the question whether the onus on a party to establish certain issues had been discharged, he misdirects himself on the law. In view of the above, I am satisfied that ground 3 of the grounds filed by the Defendant before the Court of Appeal is a valid ground of law.
Having now held that grounds 1 and 3 are valid grounds of law the argument of Mr. Oseni that the appeal before the Court of Appeal was incompetent because there was no valid ground to support it fails. Also ground 4 was attacked on the ground that it was not a ground of appeal in a civil case. I have held that Ground 4 is a valid ground of appeal in a civil case. But then it is a ground of fact. Does that make any difference By virtue of Section 213(3) of the 1979 Constitution, appeals to the Supreme Court on grounds of fact or mixed law and fact require leave of the Court of Appeal or the Supreme Court. It is not so with appeals from the High Court to the Court of Appeal. By Section 220(1) of the same 1979 Constitution:-
“220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal (now the Court of Appeal) as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.”
There was therefore no legal requirement that leave be sought and obtained to file ground 4, the omnibus ground dealing with the facts and the weight of evidence. That being the case, grounds 1, 3 and 4 were valid grounds of appeal to sustain the Notice of Appeal to the Court below.
Chief Williams, S.A.N., in his Brief raised the issues of Waiver and Estoppel. I agree with Chief Williams that the Plaintiffs (the present Appellants) in the Court below took steps which presupposed the existence of a valid appeal. When the present Respondent as Defendant/Appellant in the Court below filed a motion for stay of execution pending his appeal, the present Appellants who were then Plaintiffs/Respondents filed a counter-affidavit opposing the motion, then took part in the arguments. During the appeal itself they, the Respondents, filed a Brief in answer to the Defendant/Appellant’s Brief. I agree that all these steps taken by the Plaintiffs are consistent with the existence of a valid appeal before the Court of Appeal. It is too late now for the Appellants in this Court after losing in the Court of Appeal to argue that there was no valid appeal. What were they fighting against in the Court below
I will not venture into the turbulent sea of determining whether the present appeal arose from an intelocutory decision or from a final decision. Ground 1 which was the only ground argued did not comprehend the luxury of deciding whether the judgment of the Court below was final or interlocutory. Ground 1 merely complained that the grounds of appeal before the Court of Appeal were invalid. I have held that grounds 1, 3 and 4 were/are valid grounds.
I have had the privilege of a preview in draft of the lead Reasons for Judgment delivered by my learned brother Coker, J.S.C and I entirely agree with those reasons
It was for all the reasons given above including those in the lead Reasons for judgment of my learned brother Coker, J.S.C. that I, on the 4th day of November, 1986, dismissed this appeal.
Appeal Dismissed.
Appearances
Alhaji M. O. Oseni (with him Femi Alokolaro and Alaba Oseni) For Appellant
AND
Chief F.R.A. Williams, S.A.N. with him F.R.A. Williams, Jnr.) For Respondent
