JOS METROPOLITAN DEVT BOARD v. UMEALAKEI & ANOR
(2020)LCN/14577(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, September 18, 2020
RATIO
PLEASINGS: OMNIBUS GROUND OF APPEAL.
In plethora of decided cases, a ground of appeal that postulates that the decision of the trial Court is against the weight of evidence or cannot be supported by the weight of evidence is christened an Omnibus Ground. It also implies that there is no evidence which if accepted would support the finding of the trial Court. See ADERIBIGBE AND ANOR V TIAMIYU ABIDOYE (2009) 4-5 SC (Pt. 111) 123, ENGINEER EMMANUEL OSOLU V ENGINEER UZODINMA OSOLU (2003) 10 SCMJ 113, ILIYA AKWAI LAGGA V AUDU YUSUF SARHUNA (2008) 6-7 SC (Pt. 1) 101. It is also trite that an Omnibus Ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial, see IREJU NWOKIDU AND 3 ORS V MARK OKANU AND ANOR (2010) 1 SC (Pt. 1) 136, ODOEMENA NWAIGWE AND ORS V NZE EDWIN OKERE (2008) 5-6 SC (Pt. 11) 93. Put in another way, an Omnibus Ground of Appeal is a complaint on evaluation of evidence which encompasses a complaint that the trial Court failed to properly evaluate the evidence before the Court, see AJIBONA V KOLAWOLE (1996) 12 SCNJ 270. The argument of the Appellant regarding ground one of the grounds of Appeal which is an Omnibus ground in this circumstance cannot fly. It is misleading in nature and to say a little constitutes a misconception on the part of the learned Counsel representing the Appellant. The said argument is discountenanced. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.
RATIO
PLEADINGS: APPEAL OF RIGHT AND OF LEAVE.
In determining whether an appeal is as of right or leave is required or whether the ground is law, fact or mixed law and fact the Court has to look at the ground of appeal thoroughly and carefully examine the ground of appeal. The apex Court has made a chain of decision on this point to the effect that –
(1) Where the complaint in the ground of appeal is one of misunderstanding by the Court of law or misapplication of law to the fact already established, it is a ground of law.
(2) Where the ground of appeal disputes or questions the evaluation of fact by the Court before applying the law, it is a ground of mix law and fact.
(3) All ground of appeal which raise facts for determination are grounds of fact.
See the cases of G. N. NWAOLISAH (Trading under the name and style of G.B. Vatallis Co. (NIG) V PASCHAL NWABUFOH (TRADING UNDER THE NAME AND STYLE OF PASKODI MARITIME AGENCIES) (2011) 6-7 SC (Pt. 1) 138, ONIFADE V OLAYIWOLA (1990) 11-12 SC.
From the foregoing, it then stand to reason that where a ground of appeal is of fact or mix law and fact, the Appellant must obtain the leave of the Court that either gave the decision against which the ground(s) is raised or the appellate Court. See GENERAL ELECTRIC COMPANY V HARRY AYOADE AKANDE AND 4 ORS (2010) SC (Pt. IV) 75, UNION BANK OF NIGERIA PLC V MR. OLUSOJI SOGUNRO AND ORS (2006) 7 SCNJ 396. An appeal on a question of law or what the true law is or for a question relating to the construction of a statutory provision is or a ground which alleges a misdirection or an error deduced from the conclusion of the Court on undisputed fact are grounds of law.
For the foregoing therefore, and considering the nature of the complaint in grounds 2-4 of the grounds of appeal which is on the interpretation of Section 29 of the Plateau State Urban Development Law No. 19(1982) vis-a-vis the pre-action notice as in Exhibit “B”, I have no hesitation in my mind that those grounds are grounds of law and to which no leave is required to appeal. As I said before, the appeal is an interlocutory one. The challenge to issue of appropriateness of Exhibit “B” the preaction notice in this appeal does not determine finally the subject matter of the suit before the Court dealing on ownership of the land in dispute. It will only determine whether or not the notice required was issued. That, in the circumstance of this appeal cannot be said to be a decision or judgment of a Court which finally and completely determined the right of the parties in this case, i.e. the ownership of the land. The issue is not whether the Court has finally determined an issue but whether or not it has finally determine the right of the parties in the claim before the Court. See OMONUWA V OSHODIN (1985) 2 NWLR (Pt. 10) 924,EBOKAM V EKWENIBE AND SONS TRADING CO. LTD (1999) 10 NWLR (Pt. 622) 242, CHIEF OZO NWANKWO ALOR AND ANOR V CHRISTOPHER NGENE AND OR (2007) 17 NWLR (Pt. 1062) 163 where the jurisdiction of the Court is challenged and the Court finds that it has jurisdiction, the decision in that regard is an interlocutory one as in this case and hence the issue in the case, i.e. ownership of the land is yet to be determined. See AKINSANYA V U.B.A. (1986) 4 NWLR (Pt. 35) 373, GOMEZ v C & S.S. (2009) 10 NWLR (Pt. 1149) 223 at 248, GLADIS SAMUEL V YAHAYA ETUBI (2011) LPELR – 4200.
This appeal as constituted contain grounds of appeal which are predicated on finding of fact by the trial Court. Ground one is a ground on fact. The appeal being an interlocutory appeal, leave of Court is required to appeal on ground one.
The Notice of appeal also contain grounds of appeal which are on point of law and to which no leave is required. See grounds 2-4. I have determined somewhere before now in this judgment that the decision of the trial Court is not a final one because it has not finally determine the dispute between the parties i.e. ownership of the land. Therefore, in the circumstance at hand, it is my ardent view that the appeal being an interlocutory one and to which decision has not put to rest finally the issue in dispute between the parties, requires the leave of the Court before filing the appeal. Having not sought and obtained that leave, it renders the appeal incompetent and liable to be struck out. Both the ground of appeal on issue of fact (Ground one) and that on issue of Law (Grounds 2-4) are sharing the same umbilical cord i.e. same issue. What I am saying is that the Appellant only formulate a lone issue on all the five grounds. The lone issue so formulated cannot be severed. The Court is not supposed to undertake any process of surgical operation to separate Paul and Barnabas. Therefore the issue so formulated is also liable to be struck out. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.
CA/J/481/2019
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
JOS METROPOLITAN DEVELOPMENT BOARD APPELANT(S)
And
1. UGOCHUKWU STANLEY UMEALAKEI 2. MRS. NGOZI EZENWA RESPONDENT(S)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Respondents in this Court by way of a Writ of Summon before the High Court of Justice Plateau State holding in Jos sought against the Appellant for the following reliefs as prayed in paragraph 14 of their Statement of Claim dated 9th day of October, 2017. (See page 7 of the Record of Appeal).
(a) A declaration that the Defendant’s interference and trespass upon the 1st Plaintiff property situate at No. 1 Shen Road Bukuru Jos South L.G.C. Plateau State and covered by Certificate of Occupancy No. BP4403 is unlawful, illegal and amount to an act of trespass.
(b) An Order of perpetual injunction restraining the Defendant from further interfering and trespassing upon the 1st Plaintiff property aforementioned in paragraph (a) above.
(c) The sum of N20,000,000.00 as damages for trespass.
(d) The cost of this action.
On the 19th day of April, 2018, the Appellant filed his Memorandum of Conditional Appearance dated 18th day of April, 2018. By the Order of the trial Court granted on 25th day of September, 2018, consequent upon the hearing of the application by the
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Defendant pursuant to Order 8 Rule 22 of the High Court (Civil Procedure) Rules 1987 of Plateau State, Paragraph 3.02 of the Practice Direction No. 1.2007 and the inherent powers of the Court, the Appellant filed his 29 paragraph Statement of Defence along with other processes in that regard. In addition to the foregoing he also filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to hear and determine the suit by the Plaintiff/Respondent on 19th November, 2018. The ground of objection is as follows: (See page 49 of the Record of Appeal)
“That the Plaintiff/Respondents failed to comply with the provision of Section 29 of the Plateau State Urban Development Law No. 19 (1982) which provides for the issuance of One Month Notice before the institution of any action against the Applicant.”
PRAYERS
“An Order striking out the suit for want of jurisdiction.”
The Notice of Preliminary Objection was filed along with an Affidavit in support of 12 paragraphs and a written address and some annexures. The Plaintiff/Respondent filed his written address in opposition to the Notice of Preliminary
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Objection. Issues were joined.
The application was taken on 10th day of October, 2019 and adjourned to 29th day of October, 2019 for Ruling. In his considered Ruling handed down on 29th day of October, 2019 the learned trial judge overruled the Preliminary Objection hence this interlocutory appeal which is predicated upon the Notice of Appeal dated November, 2019. It has 4 (four) grounds of appeal. Therein the following reliefs are sought:
RELIEFS SOUGHT
(a) An Order allowing the appeal by setting aside the Ruling of the trial Court delivered on the 20th October, 2019.
(b) An Order striking out the suit for want of jurisdiction, and Plaintiffs/Respondents having failed to comply with the express provisions of Section 29 of the Plateau State Urban Development Law No. 19 (1982)
Consequent upon the transmission of the Record of Appeal on 10th day of December, 2019, the following processes were filed:
(1) The Appellant filed his brief of argument dated 20th day of January, 2020 on the 23rd day of January, 2020. Therein he distilled a lone issue for the determination of the appeal thus:
“Whether Exhibit “B”
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attached to the Respondent’s affidavit in opposition to the Preliminary Objection filed by the Appellant at the Lower Court met the express stipulation of Section 29 of the Plateau State Urban Development Law No. 19 (1982)” (Grounds 1-4)
(2) The Respondent’s brief of argument is dated and filed on the 6th day of February, 2020. Therein he also presented a lone issue for the determination of the appeal thus:
“Whether the learned trial judge was right when he held that Exhibit “B” substantially complied with the legal requirement of Section 29 of the Plateau State Urban Development Law No. 19 (1982)”
Further to the foregoing, the Respondent also filed a notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016. The grounds of the Objection are as follows:
GROUNDS OF NOTICE OF PRELIMINARY OBJECTION
(1) The appeal herein is incompetent in that the Notice of Appeal contains Ground of facts, and leave of Court was not sought and obtained before filing same.
(2) That a sole issue for determination is formulated to encompass both the competent and incompetent
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Ground of Appeal, thus rendering all the Ground of Appeal and the sole issue thereby formulated incompetent and altogether liable to be struck out.
His argument in respect of the foregoing grounds of objection can be found from pages 3 – 6 of the Respondent’s brief of argument.
The reply of the Appellant to both the argument of the Respondent in support of the Preliminary Objection and his reply to the brief of the Respondent was filed on 29th day of June, 2020 and deemed as properly filed vide the order of this Court granted on 1st July, 2020.
Respective Counsel adopted their brief of argument. Since the Preliminary Objection of the Respondent is challenging the competence of the appeal and the jurisdiction of this Court to entertain the appeal, the Preliminary Objection will first be determined. See the case of MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341, ADISA V OYINWOLA (2000) 10 NWLR (Pt. 690) 353, A.G. FEDERATION V. A.G. ABIA STATE (2001) 11 NWLR (Pt. 725) 689.
The contention of the Respondent is centered on Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. His argument on the
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aforementioned provisions is that, it is manifestly and abundantly clear from the foregoing, that an appeal lies from the interlocutory decision of the High Court to the Court of Appeal as of right, if the ground of appeal involve question of law alone and that appeals arising from an interlocutory decision involving question of fact or mixed law and fact can be brought with leave of Court first had and obtained.
He argued further that the first ground of appeal is an Omnibus ground stating that the decision of the trial Court is against the weight of evidence. He submitted that an Omnibus Ground of appeal is a pure ground of fact. He relied on the following cases: JULIUS ANUFORO V COL. FIDELIS ATTAHIRU NAD ANO (2016) LPELR – 42970 (page 13) AKINWUMI V ODUA INVESTMENT COMPANY LTD (2012) ALL FWLR Pt. 620 page 1228. He argued further that for an interlocutory appeal as of right to be competent all the grounds of appeal must be of pure law. Where the ground is partly of law and fact or of mix law and fact, the ground would be incompetent. He cited the case of WALI V WALI (2016) ALL FWLR (Pt. 843) page 1969 – 1970 paragraphs H-C. The Grounds of
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Appeal are ground of fact, law and mixed law and fact. Being an interlocutory appeal, it is incompetent and ought to be struck out. It is his case, that assuming without conceding that the Notice of Appeal is saved by some of the grounds that are of law, he submitted that the appeal will be incapable of redemption because the Appellant raised a sole issue from the competent and incompetent ground of appeal. By that the competent ground is rendered incompetent. He relied on the cases of JEV AND ANOR V IYORTYOM AND ORS (2014) LPELR -23000 (pages 36-37), NDIC V GOVERNING COUNCIL OF THR IFE AND ANOR (2011) LPELR – 19755, IDAAYOR AND ANOR V CHIEF SAMSON TIGIDAM (1995) 2 NWLR (Pt. 377) page 359, AFRICAN CONTINENTAL BANK PLC V EAGLE SUPER PACK NIG LTD (1995) 2 NWLR (Pt. 379) page 590, IHUOMA VS WACHUKWU (2017) LPELR – 42621 (pg. 14).
The reaction of the Appellant to the foregoing argument by the Respondent/Applicant is that the Grounds of Appeal are grounds of pure law and not facts and secondly that the Ruling appealed against is final decision of Court being a ruling on jurisdiction of Court. He submitted that the grounds are that of law and not
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fact, the Omnibus Ground notwithstanding. It is his contention that the Omnibus Ground is a general ground not of fact as it does not question any particular finding of fact in the case. He relied on the case of ILOKA V EDOKWE AND ORS (2016) LPELR – 41027,ODELUGA V ANIAKOR (2012) LPELR 19977, AKINLAGUN V OSHOBOJA (2006) 5 SC (Pt. 11) 100 at 111-114.
He added that all other grounds apart from the Omnibus Ground are ground of pure law as they question the interpretation and application of the law to facts. He relied on the case of OKOROCHA V P.D.P (2015) EJSC (Vol. 1) 1 SC. Page 1 at 27-28 paras. F-D. He argued further that grounds 2-4 complains of the misapplication and misconstruction of the law. In addition he argued that the ruling of the lower Court was one of jurisdiction of the Court which would have ended the matter and that the law is trite that rulings on jurisdiction are final decisions of Court hence appeal thereon are appeals as of right. He relied on the following cases: WESTERN STEEL WORKS LTD & ANOR V IRON AND STEEL WORKED UNION AND ANOR (1986) LPELR – 3479, ALOR AND ANOR V NGENE AND ORS (2007) LPELR – 431.
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He urge the Court to dismiss the Preliminary Objection.
A careful reading of the Preliminary Objection by the Respondent to the competence of the ground of Appeal and that of the Court can be described as a double edge sword. At one breath, it challenges the competence of the interlocutory appeal stating that the appeal being an interlocutory appeal on ground of fact, the leave of the Court to appeal is required pursuant to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. Having not sought and obtained the leave, the appeal is incompetent. Secondly, that the sole issue for determination is formulated to encompass both competent and incompetent ground of appeal, hence both the grounds of appeal and the sole issue formulated are incompetent and liable to be struck out.
His argument in support of the complaint is that ground one is purely an Omnibus Ground and hence a ground of fact which require the leave of the Court to appeal. The question is whether or not ground one is an Omnibus ground. The ground one in issue as contained in the Notice and Ground of Appeal read (See page 81 of the Record of Appeal)
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“The Decision of the trial Court is against the weight of Evidence.”
In plethora of decided cases, a ground of appeal that postulates that the decision of the trial Court is against the weight of evidence or cannot be supported by the weight of evidence is christened an Omnibus Ground. It also implies that there is no evidence which if accepted would support the finding of the trial Court. See ADERIBIGBE AND ANOR V TIAMIYU ABIDOYE (2009) 4-5 SC (Pt. 111) 123, ENGINEER EMMANUEL OSOLU V ENGINEER UZODINMA OSOLU (2003) 10 SCMJ 113, ILIYA AKWAI LAGGA V AUDU YUSUF SARHUNA (2008) 6-7 SC (Pt. 1) 101. It is also trite that an Omnibus Ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial, see IREJU NWOKIDU AND 3 ORS V MARK OKANU AND ANOR (2010) 1 SC (Pt. 1) 136, ODOEMENA NWAIGWE AND ORS V NZE EDWIN OKERE (2008) 5-6 SC (Pt. 11) 93. Put in another way, an Omnibus Ground of Appeal is a complaint on evaluation of evidence which encompasses a complaint that the trial Court failed to properly evaluate the evidence before the Court, see AJIBONA V KOLAWOLE (1996) 12 SCNJ 270. The argument of the Appellant regarding ground
10
one of the grounds of Appeal which is an Omnibus ground in this circumstance cannot fly. It is misleading in nature and to say a little constitutes a misconception on the part of the learned Counsel representing the Appellant. The said argument is discountenanced.
In determining whether an appeal is as of right or leave is required or whether the ground is law, fact or mixed law and fact the Court has to look at the ground of appeal thoroughly and carefully examine the ground of appeal. The apex Court has made a chain of decision on this point to the effect that –
(1) Where the complaint in the ground of appeal is one of misunderstanding by the Court of law or misapplication of law to the fact already established, it is a ground of law.
(2) Where the ground of appeal disputes or questions the evaluation of fact by the Court before applying the law, it is a ground of mix law and fact.
(3) All ground of appeal which raise facts for determination are grounds of fact.
See the cases of G. N. NWAOLISAH (Trading under the name and style of G.B. Vatallis Co. (NIG) V PASCHAL NWABUFOH (TRADING UNDER THE NAME AND STYLE OF PASKODI MARITIME AGENCIES)
11
(2011) 6-7 SC (Pt. 1) 138, ONIFADE V OLAYIWOLA (1990) 11-12 SC.
From the foregoing, it then stand to reason that where a ground of appeal is of fact or mix law and fact, the Appellant must obtain the leave of the Court that either gave the decision against which the ground(s) is raised or the appellate Court. See GENERAL ELECTRIC COMPANY V HARRY AYOADE AKANDE AND 4 ORS (2010) SC (Pt. IV) 75, UNION BANK OF NIGERIA PLC V MR. OLUSOJI SOGUNRO AND ORS (2006) 7 SCNJ 396. An appeal on a question of law or what the true law is or for a question relating to the construction of a statutory provision is or a ground which alleges a misdirection or an error deduced from the conclusion of the Court on undisputed fact are grounds of law.
For the foregoing therefore, and considering the nature of the complaint in grounds 2-4 of the grounds of appeal which is on the interpretation of Section 29 of the Plateau State Urban Development Law No. 19(1982) vis-a-vis the pre-action notice as in Exhibit “B”, I have no hesitation in my mind that those grounds are grounds of law and to which no leave is required to appeal. As I said before, the appeal is an
12
interlocutory one. The challenge to issue of appropriateness of Exhibit “B” the preaction notice in this appeal does not determine finally the subject matter of the suit before the Court dealing on ownership of the land in dispute. It will only determine whether or not the notice required was issued. That, in the circumstance of this appeal cannot be said to be a decision or judgment of a Court which finally and completely determined the right of the parties in this case, i.e. the ownership of the land. The issue is not whether the Court has finally determined an issue but whether or not it has finally determine the right of the parties in the claim before the Court. See OMONUWA V OSHODIN (1985) 2 NWLR (Pt. 10) 924,EBOKAM V EKWENIBE AND SONS TRADING CO. LTD (1999) 10 NWLR (Pt. 622) 242, CHIEF OZO NWANKWO ALOR AND ANOR V CHRISTOPHER NGENE AND OR (2007) 17 NWLR (Pt. 1062) 163 where the jurisdiction of the Court is challenged and the Court finds that it has jurisdiction, the decision in that regard is an interlocutory one as in this case and hence the issue in the case, i.e. ownership of the land is yet to be determined. See AKINSANYA V U.B.A. (1986)
13
4 NWLR (Pt. 35) 373, GOMEZ v C & S.S. (2009) 10 NWLR (Pt. 1149) 223 at 248, GLADIS SAMUEL V YAHAYA ETUBI (2011) LPELR – 4200.
This appeal as constituted contain grounds of appeal which are predicated on finding of fact by the trial Court. Ground one is a ground on fact. The appeal being an interlocutory appeal, leave of Court is required to appeal on ground one.
The Notice of appeal also contain grounds of appeal which are on point of law and to which no leave is required. See grounds 2-4. I have determined somewhere before now in this judgment that the decision of the trial Court is not a final one because it has not finally determine the dispute between the parties i.e. ownership of the land. Therefore, in the circumstance at hand, it is my ardent view that the appeal being an interlocutory one and to which decision has not put to rest finally the issue in dispute between the parties, requires the leave of the Court before filing the appeal. Having not sought and obtained that leave, it renders the appeal incompetent and liable to be struck out. Both the ground of appeal on issue of fact (Ground one) and that on issue of Law (Grounds 2-4) are
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sharing the same umbilical cord i.e. same issue. What I am saying is that the Appellant only formulate a lone issue on all the five grounds. The lone issue so formulated cannot be severed. The Court is not supposed to undertake any process of surgical operation to separate Paul and Barnabas. Therefore the issue so formulated is also liable to be struck out.
In consequence therefore, the Preliminary Objection by the Respondent is sustained. The appeal being an interlocutory appeal to which leave of Court to appeal is required but not sought and obtained is declared incompetent and hence struck out.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the conclusion striking out the appeal for being incompetent.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion that the appeal is incompetent for reasons given in his judgment by my learned brother; accordingly, I also strike out this appeal.
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Appearances:
D. DASHE, ESQ., with him, N. N. ADANGU, ESQ. For Appellant(s)
KEKEMEKE, ESQ., with him, A. S. ILIYA, ESQ. For Respondent(s)
