IMHANLU KHEREKHOLO V. SAMUEL UDA
(2010)LCN/3689(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of April, 2010
CA/B/216/2002
RATIO
APPEAL: IMPLICATION OF FAILURE TO OBTAIN LEAVE OF APPEAL ON AN INTERLOCUTORY DECISION
Where no leave is obtained before an appeal is lodged in an interlocutory decision on a Ground such as Ground 6, such an appeal on that Ground would be incompetent. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
APPEAL: EFFECT OF FAILURE TO OBTAIN LEAVE
Failure to obtain such a leave as in this case is fatal to that Ground. See APENA V. AIYETORI (1989) 1 NWLR (Pt. 95) 85 at 89. In the circumstance, the objection to Ground 6 succeeds and that Ground is hereby struck out as incompetent. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
JUSTICE
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
IMHANLU KHEREKHOLO Appellant(s)
AND
SAMUEL UDA Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal who was the Plaintiff in the court below had commenced proceedings at the High Court of Edo State sitting at Ubiaja (which proceedings were later transferred to Ekpoma) against the Appellant who was the Defendant claiming “N500,000:00 (Five Hundred Thousand Naira) as damages suffered by the Plaintiff as a result of the conduct of the Defendant in setting fire to the plantation of Ducanut trees, rubber trees and mango trees of the Plaintiff.”
Pleadings were filed andexchanged and the matter proceeded to trial at the end of which the learned trial Judge found for the Respondent and awarded N100,000.00 (One Hundred Thousand Naira) in his favour as General damages and N3,000.00 (Three Thousand Naira) as costs. Aggrieved by the decision of the trial Judge, the Appellant has now appealed to this court on seven Grounds which, without their particulars, are set out herein as follows:
“GROUND 1
The learned trial Judge erred in law when he held that in the instant case, the Plaintiff has proved
his case to my satisfaction and with the preponderance of evidence as required by law. I believe the evidence of the Plaintiff that:
(1) His Plantation was burnt on the 27th March, 1990.
(2) That the Defendant burnt his farm on 27th March, 1990
(3) That the fire from the Defendant’s burning farm spread to the Plaintiff’s plantation on 27th March, 1990 and thereby came to a wrong decision. ”
GROUND 2
The decision is against the weight of evidence.
GROUND 3
The learned trial Judge was perverse in his evaluation and assessment of the evidence of witnesses and thereby erred in law and misdirected himself on the facts in arriving at a wrong decision.
GROUND 4
The learned trial Judge erred in law when he failed to consider and decide on the issue of estoppel by customary arbitration raised by the pleadings and evidence in this case.
GROUND 5
The learned trial Judge erred in the assessment of damages by basing the award on wrong principles of law.
GROUND 6
The learned trial Judge erred in law when he wrongly refused the application to further amend the Defendant’s/Applicant’s statement of defence as reflected in Paragraphs 7(a), 8(a) and 9(a) of the further amended statement of defence contained in Paragraph 33(a) to 33(c) of the Record of Appeal, contrary to the well established principles of law guiding amendment of pleadings and thereby wrongly failed to determine the real issue in controversy between the parties.
GROUND 7
The learned trial Judge erred in law when he wrongly admitted and acted on inadmissible evidence and rejected legally admissible evidence to arrive at a wrong decision.”
From the foregoing grounds of appeal, learned counsel for the Appellant, Mr. Eimuihi in his brief distilled five issues for determination in the following terms:
(1) Whether the learned trial Judge was perverse when he found the Defendant/Appellant liable for negligence?
(2) Whether the learned trial Judge was right to have ignored the issue of estoppel by customary arbitration raised by the pleading and evidence?
(3) Whether the refusal by the learned trial Judge to allow the Defendant/Appellant to further amend his statement of defence occasioned a miscarriage of Justice?
(4) Whether the trial Judge wrongly rejected legally admissible evidence which occasioned a miscarriage of justice?
(5) Whether the N100,000.00 (One Hundred Thousand Naira) General damages awarded by the learned trial Judge is erroneous in law?
The learned counsel for the Respondent, Mr. Obamogie, also identified five issues for determination but couched in a slightly different manner thus:
(1) Whether having regard to the totality of the evidence before the court, the trial court was right in holding that the Appellant was negligent and therefore liable to the Respondent for the damage of the Respondent’s crops.
(2) Whether or not the learned trial Judge correctly and properly evaluated and appraised the evidence adduced at the trial:
(3) Whether or not the facts and circumstances of this case justify the application of the doctrine of estoppel by customary arbitration.
(4) Whether in the circumstances of the case the trial court exercised its discretion properly in the assessment of damages awarded against the Appellant.
(5) Whether or not the refusal by the trial court to allow Appellant makes further amendment to his pleadings occasioned a miscarriage of Justice.
In his brief of argument, learned counsel for the Respondent raised preliminary objections to Grounds 3 and 6 of the Appellants Grounds of Appeal. In his objection to Ground three, it was learned counsel’s contention that Ground 3 was incompetent in that it alleged both error of law and misdirection at the same time. He argued that by their very nature, a Ground of Appeal cannot be the two at the same time as both are mutually exclusive. In relation to Ground 6, learned counsel submitted that the decision of the lower court refusing a further amendment to the statement of defence was an interlocutory decision for which leave was needed to appeal and since no leave was obtained before that Ground was filed, the Ground was incompetent. He referred to the date when the interlocutory decision was made and the date when that Ground of Appeal was filed, and argued that not only was leave not obtained, but no extension of time to appeal on that Ground was applied for and granted. He then urged that Grounds 3 and 6 being incompetent should be struck out.
In his reply to the objections, learned counsel for the Appellant, Mr. Eimuihi, submitted that Ground 3 was competent in that it substantially complied with the relevant rules of this court which require particulars of error in law and misdirection to be provided. He argued that the purpose of Grounds of Appeal is to give notice to the other side as to what case he is going to meet on appeal.
On Ground 6, learned counsel submitted that leave to file additional Grounds of Appeal having been granted the Appellant on 9/6/03 without objection from the Respondent, the Respondent had, thereby consented to that Ground of Appeal, and cannot now complain. Let me dispose of these objections before going into the merits of the appeal. There is no doubt that a Ground of Appeal which alleges an error of law and a misdirection prima facia postulates an incongruity as amisdirection or non-direction would appear to relate to facts while error in law would appear to relate to the application of the law or a consideration of the law to facts or issues. This was the position of the Supreme Court, per Nnaemeka-Agu JSC in NWADIKE V. IBEKWE (1987) 4 NWLR (pt. 67) 718 at 744.
This approach was adopted by this court, Enugu Division in KALU V. MBUKO (1988) 3 NWLR (pt. 80) 86 at 96. However, this court in the recent case of BAYERO V. MAINASARA & SONS LTD (2006) 36 WRN I 136 at 170 – 171 and the Supreme Court in ADEROUNMU V. OLOWU (2000) 75 LRCN 425 at 440 have held that a Ground of Appeal alleging error in law and misdirection in fact is not thereby rendered incompetent if it otherwise complies with the rules requiring that a Ground of Appeal be not vague or in general terms and that what makes a ground incompetent is not whether it is framed as an error and a misdirection, but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the Appellant actually is.
I have already set out Ground 3 of the Grounds of Appeal short of its particulars. For a consideration of this objection on this Ground it is necessary to set out its particulars. They read:
“GROUND 3
(a) The learned trial Judge wrongly disbelieved the cogent and compelling evidence of DW1 and DW2 that Defendant burnt his farm on 30th March, 1990 merely because “DW1 . is the brother in-law to the Defendant” while DW2 … is the son of the Defendant.”
(b) It is trite law that mere evidence of relationship is no discrediting factor in the evaluation and assessment of evidence of witnesses.
(c) Although the evidence of PW3, DW1, DW2 and Exhibits 2 – 2g unequivocally proved that Defendant did not burn his farm on 27th March, 1990 but on 30th March, 1990, the learned trial judge wrongly found “that there is no witness to the burning of these two farms.”
A thorough reading of the above particulars would reveal that the complaint in terms of error and misdirection were therein clearly set out. Reference was made to the evidence of DW1 and DW2 and the misdirection is therein stated to be that the witnesses were disbelieved because they were said to be the brother-in-law and son respectively of the Appellant. The error in law is stated to be that the mere evidence of relationship should not be a factor in discrediting a witness. Thus, the basis for the complaint under this ground is clear and unambiguous, and gives information as to its basis which should be the essence of a complaint in a Ground of Appeal.
In the circumstance, I will and hereby overrule the objection relating to Ground 3 of the Grounds of Appeal as misconceived. That Ground of Appeal is hereby adjudged competent.
In relation to the objection on Ground 6, I will say straight away that a decision of a court refusing or granting an application for an amendment of pleading is an interlocutory decision. Therefore the ruling of the learned trial Judge refusing the Appellant’s application for the amendment of his pleading was an interlocutory decision from which an appeal to the Court of Appeal can lie with leave either of the lower court or of the Court of Appeal as the case may be.
See Sections 220 and 221 of the 1999 Constitution. Where no leave is obtained before an appeal is lodged in an interlocutory decision on a Ground such as Ground 6, such an appeal on that Ground would be incompetent. Learned counsel for the Appellant had argued that by not objecting to the application to amend the Grounds of Appeal which included Ground 6, he had cured the defect. I am afraid I cannot accept that proposition as it is preposterous, parties cannot by consent cure a defect that touches on the Jurisdiction of the Court. Failure to obtain leave touches on the Jurisdiction to adjudicate based on a fatally defective Ground. The amendment granted for additional Grounds is not leave to appeal on an interlocutory decision. The Appellant ought to have sought for and obtained leave to file Ground 6 touching on an interlocutory decision of the trial Judge on amendment. Failure to obtain such a leave as in this case is fatal to that Ground. See APENA V. AIYETORI (1989) 1 NWLR (Pt. 95) 85 at 89. In the circumstance, the objection to Ground 6 succeeds and that Ground is hereby struck out as incompetent. This leave the Appellant with 6 Grounds of Appeal.
Now to the merits of the appeal. As I said earlier, each side to this case identified five issues for determination in slightly different terms which issues I had earlier set out in this Judgment. The view I have taken of Ground 6 which has been struck out as a result has made issue No. 3 in Appellant’s counsel’s brief and Issue No. 5 in Respondent’s counsel’s brief irrelevant. Therefore, the said issues Nos. 3 and 5 respectively are hereby struck out thus reducing the issues raised by the parties to four issues. The remaining issues on both sides can conveniently be summarized and compressed into one broad issue namely:
“Whether on the pleadings and evidence led in this case, the learned trial Judge was right in entering Judgment for the Respondent and making the award in damages as he did.”
In his brief of argument, learned counsel for the Appellant, Mr. Eimuihi, submitted that the learned trial Judge was perverse in his evaluation and assessment of the evidence before him. He argued that the finding of the court that the Appellant burnt his farm on 27/3/90 from which fire spread to the Respondent’s farm was not supported by evidence more so after finding as he did that there was no eye witness as to who set fire on the Respondent’s farm on 27/3/90. He said that the position is further strengthened by the fact that those; who allegedly reported to the Respondent that his farm was on fire were not called to testify nor were their names even mentioned in evidence. He referred to the various locations of both, farms which were separated by motorable road and the evidence of the Appellant’s witnesses supported by the Respondent’s witnesses that the two farms were separated by a motorable road and no burning features were seen on the said road to show that fire spread through the road to the Respondent’s farm across it.
On the customary arbitration, counsel argued that the trial court failed to consider the issue of estoppel by customary arbitration raised in the pleadings and adduced in evidence. Counsel also found fault with the expunging of the evidence of DW2 under an earlier cross-examination.
On damages, counsel submitted that the trial Judge’s assessment of damages was erroneous as a Plaintiff could only be entitled to General damages if he proved the loss which naturally flowed from an act of negligence committed by a Defendant.
In his reply, learned counsel for the Respondent contended that, the trial Judge was right in holding that it was the Appellant who set the Respondent’s farm on fire as that finding was amply supported by evidence. He argued that it was not necessary to call those who informed the Respondent that his farm was on fire since the persons did not say they saw the Appellant set the farm on fire. Learned counsel argued that the trial Judge came to his conclusion upon the evidence before him.
On the arbitration, counsel set out the ingredients for a valid’ customary arbitration which included acceptance of an award at the time it was made and contended that, the Appellant failed to abide by the decision of the arbitrators, and so; the Respondent was right to approach the court for redress.
Finally on damages, counsel drew a distinction between Special and General damages and submitted that while Special damages must be specifically pleaded and proved, General damages were unliquidated in form.
On the exclusion of evidence, counsel referred to the proceedings of the court as to the circumstances leading to the exclusion which were the result of the action of the Appellant’s counsel in informing the court that the Respondent had concluded his evidence in-chief when infact he had not. The other exclusion related to what was not pleaded.
In deciding this broad issue which covers the issues raised by the parties to this case and upon which their arguments hinge as outlined above, it is necessary to refer to the Judgment of the lower court in this regard and on this matter. That Judgment is at page 47 to 56 of the Record of Appeal. A reading of the Judgment shows that pages 47 to part of page 51 consist in the reproduction, hook, line and sinker, all the paragraphs of the pleadings of the parties. Part of page 51 up to almost the end of page 53 consist in the reproduction of the evidence of witnesses in the case, while the end of page 53 to part of page 54 contain the address of the Appellant’s counsel. . In other words, in a Judgment of about nine pages, more than seven pages were devoted to copying out the entire pleadings of the parties reproducing the whole evidence led in the case and the address of the Appellant’s counsel leaving less than two pages for the Judgment proper. This is most preposterous and an unsatisfactory way of writing Judgment.
Be that as it may, at page 54 of the Record of Appeal lines 27 – 30, the learned trial Judge in his Judgment found thus:
“In effect there was no eye witness as to who set fire on the farm on the 27th March, 1990. Those who came to report to the Plaintiff did not say they saw defendant set the plantation on fire..”
After holding that it was not necessary to call the persons who informed the Appellant that his farm had been burnt (which opinion I do not quarrel with since those persons did not say they saw the person who set the farm on fire), the learned trial Judge went on to observe again at page 55 lines 4 – 6 that:
“there is no witness to the burning of these two farms. It is the Plaintiff’s word against the defendants”
The court then stated at the same page lines 6 – 9 that, he had no hesitation in believing the evidence of the Respondent (Plaintiff) that his farm was burnt on 27/3/90 and that he disbelieved the evidence of the Appellant (Defendant). Now,what was the reason for these belief and disbelief? The reason was given by the trial Judge as founded on what I have already expressed above (page 55, lines 8 – 9 of the records). What then did he express above? This can be found at page 54 lines 34 – 44 and page 55 lines 1 – 5 of the records where the trial Judge stated inter alia as follows:
“I have had the opportunity of watching both the Plaintiff and defendant give evidence before me. Their demeanor is very important at this stage for me to determine who to believe. The defendant did not impress me in his evidence. He denied under cross-examination that. DW1 was his in-law that he is not married to his senior sister. The DW2 who is the defendant’s son under cross-examination agreed that DW1 is married to the father’s (defendant’s) senior sister. The DW1 himself under cross-examination stated that the defendant is his brother in-law and that he is married to his senior sister. When a man of this standard could deny that DW1 is not his brother in-law married to his sister, I wonder how he can agree that he set fire to his farm on 27/3/90 which spread to Plaintiff’s farm. Why I am considering this issue seriously is that there is no eye witness to the burning of the two farms …”
In other words, the trial Judge reached the conclusion that it was the Appellant who set the farm on fire because he stated that, his brother in-law was not his brother in-law. What this means is that the burden of proof left the Respondent (Plaintiff) and shifted to the Appellant (Defendant) because the Appellant denied that DW1, was his brother in-law. In paragraph 8 of his Statement of Claim the Respondent averred that on getting to the farm on 27/3/90 he met the defendant who admitted that he was responsible for the fire but that he did not willfully set fire on the plantation and that the fire entered the Respondent’s plantation from his own farm. The Appellant denied this pleading by paragraph 4, 7 and 8 of his Statement of Defence.
The Respondent gave evidence to the effect of his aforesaid pleading. The Appellant also gave evidence in line with the denial in his pleading. He denied going to the farm on 27/3/90 let alone admitting setting Respondent’s farm on fire.
These pleadings and evidence on this crucial aspect of this case required the deep attention of the trial Judge. It was a crucial issue arising from the pleadings upon which a finding ought to have been made i.e. whether or not Appellant went to the farm and admitted setting the Respondent’s farm on fire inadvertently. The Judgment of the trial Judge made no reference to this issue on the pleadings nor to the evidence on it. Rather, he went to the denial of the Appellant that DW1 was not his brother in-law and virtually based his Judgment on it. Whether DW1 was Appellant’s brother in-law was not an issue in the case. This was a failure on the part of the trial Judge on a crucial aspect of the case.
On arbitration, it is clear that both parties did not abide by the decision of the body of elders and therefore estoppel would not arise therefrom. Indeed the trial Judge did not even consider the evidence led on that aspect let alone evaluate it as no reference was made to it by the Judge in the consideration of the evidence adduced by the parties let alone making a finding thereon.
From the totality of the evidence led, in the light of the foregoing defects in the Judgment, I am in agreement with the learned counsel for the Appellant in his submission that the Respondent did not prove his case on the balance of probabilities for which an award in General damages could be based.
In the premise, the issue is resolved in favour of the Appellant against the Respondent. Grounds 1, 2, and 3 succeed and are capable of disposing of the appeal which hereby succeeds. The appeal is allowed and the Judgment of the trial court dated 6/10/2000 together with the costs awarded therein is hereby set aside. The case of the Respondent at the lower court is hereby dismissed. The Respondent will pay the Appellant cost which I fix at N5,000.00.
GEORGE OLADEINDE SHOREMI J.C.A.:I have had the privilege of reading the judgment delivered by my learned brother Nwosu-Iheme JCA I agree with the reasoning and conclusion arrived at. I am of the opinion that the appeal is meritorious in view of defects highlighted in the judgment of the trial court.
The appeal succeeds on Grounds 1, 2 & 3 which are capable of disposing off the appeal. I allow the appeal and abide by the order as to cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother NWOSU-IHEME, JCA. I entirely agree with all the reasons set out therein as well as the conclusions. I also agree that this appeal is meritorious and ought to be allowed. I abide by all the consequential orders of my learned brother, including the order for costs.
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Appearances
S.O. Eimuhi;
G. Okhiria;
E. Osaro and
J. Okoebor (Mrs)For Appellant
AND
K. O. Obamogie;
K. A. Yiriusa;
E. O. OmoregieFor Respondent
