MR. OFFOR OGWURU & ORS v. MR. PAUL OHUCHE
(2019)LCN/13181(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/OW/82/2013
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MR. OFFOR OGWURU
2. MR. ULOMERE ONYECHELA
3. MR. KALU ONWUCHEKWA Appellant(s)
AND
MR. PAUL OHUCHE Respondent(s)
RATIO
THE PURPOSE OF A PRELIMIARY OBJECTION
In the case of ADEJUMO VS. OLAWAIYE(2014) 12 NWLR (Pt. 1421) 252 at 265 the Supreme Court again reiterated the issue and purpose of preliminary objection in the following words:-
?A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the appeal comes to an end if found to be correct. If sustained, a preliminary objection terminates the hearing of an appeal. Where a preliminary objection would not be the appropriate process to object to show to the Court defects in processes before it, a Motion on Notice filed complaining about a few grounds or defects would suffice.?
Furthermore, the Apex Court in the case of KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) LPELR-42588 (SC) PP6-7 PARAS D-B as follows:-
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe vs Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 C-F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” The fate of a preliminary objection which does not attack the hearing of an appeal but only a few grounds of appeal and or some issues as in this appeal, is that it will be struck out by the authority of UYAELUMUO VS. OBIEZE & ANOR (2018) LPELR?45256 (CA) pp 7?10 paras C?D. I so hold and accordingly strike out the preliminary objection, more so that the Notice of Appeal has been amended thereby overtaking the preliminary objection. PER ANDENYANGTSO, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court, Uzuakoli Judicial Division, Coram; J. E. Adiele, J. delivered on 21st day of May, 2010 against the plaintiffs contained on pages 182 ? 211 of the Record of appeal, hereinafter referred to as ?the Record?.
Dissatisfied with the judgment, the plaintiffs filed a notice of appeal, containing 8 grounds on the 25th day of August, 2010.
However, pursuant to the order of this Court granted on 24th October, 2017, the Notice of Appeal together with the grounds thereof was amended, this time containing 10 grounds, which shorn of their particulars are as follows:-
?GROUND 1
The trial High Court erred in law when it held that the Plaintiffs/Appellants failed to prove or establish the identity of the UzoOju land in dispute between the parties.
GROUND 2
The Court below erred in law when it held that the Plaintiffs/Appellants did not establish or prove exclusive possession of the land in dispute when it had also found that ?fortunately, the title of the UzoOju land is
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not in dispute as the judgment in Exhibit B. tendered by the Plaintiffs gave ownership of the land to them.?
GROUND 3
The Court below erred in law when it held that the demarcation ordered in the 1948 judgment was carried out in 1971 by the elders and OzuitemAmala instead of Ozuitem Native Court.
GROUND 4
The Court gravely erred in law when it unduly relied on Exhibit G in holding that there was no demarcation done in 1948 when Exhibit G, showing that it was the expansionist attempt of the Respondent on the UzoOju land that was the cause of trouble or clashes between the parties.
GROUND 5
The Court below erred in law when it held that there was a valid customary law arbitration between the parties in 1971 by the OzuitemAmala as depicted or alleged in Exhibit H when the Defendant/Respondent did not plead the valid requirements of native arbitration.
GROUND 6
The Court below erred in law when it failed to appreciate that in the tort of trespass all the Plaintiff needs to prove or establish is either exclusive possession or the right to such exclusive possession of the land in dispute which resided with the
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Plaintiffs/Appellants since the Judgment of Mr. Chubb, (Exhibit B) in which the same Court upheld is still subsisting.
GROUND 7
The Court below erred in law when it accepted and held that the survey Plan (Exhibit K) of the Defendant/Respondent was more reliable and credible when compared with that of the Appellants (Exhibit A).
GROUND 8
The Court below erred in law when it foisted on the Appellants the burden of establishing the boundaries of the area of UzoOju land occupied by the Respondent before they could establish trespass against the Respondent.
GROUND 9
The Court below erred in law when it ordered the parties to restrict themselves to their perspective (sic) areas or portions of the land in dispute when such prayer nor Counterclaim was not before the Court.
OMNIBUS GROUND OF APPEAL
That the Judgment of the High Court, Uzuakoli is against the weight of highly probative evidence in support of the Appellants? case which said evidence the trial Court glossed over and did not comprehensively appreciate or evaluate in the said judgment. That the judgment of the High Court, Uzuakoli is unwarranted, most
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unjustifiable and against the weight probative evidence, subsisting judgment and commonsense applicable to this case.?
From these 10 grounds, five issues were formulated in the amended appellants? brief of argument as follows:-
?1. Whether from the evidence before the Court below the Appellants failed to successfully prove or establish the identity of the land in dispute.
2. Whether the Appellants were supposed to prove or establish exclusive possession when title to the UzoOju land was theirs in the light of Exhibit B which gave ownership of the land to them and whether they established trespass by the Respondents.
3. Whether the Court below was justified in law when it held that no demarcation took place in 1948 by relying on Exhibit ?G?, and if yes, which party should suffer the consequences of non-compliance with the demarcation order of Resident L. T. Chubb?s Appeal Judgment of 1948 (Exhibit ?B?).
4. Whether there was any valid customary Law arbitration between the parties in 1971 vide Exhibit H, and if yes, whether the said arbitration was in compliance with the demarcation order of
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Resident L. T. Chubb?s Appeal Judgment of 1948 (Exhibit B).
5. Whether Exhibit A was not more probative, cogent and believable than Exhibit K and if so, whether the judgment of the Court below did occasion or cause a miscarriage of justice against the Appellants.?
Upon being served with the processes of the plaintiffs, the defendant filed a notice of preliminary objection on 8/10/2013. On 23/2/2018 the Defendant filed his amended Respondent brief of argument which was deemed properly filed and served on 27/2/2018. Henceforth in this judgment, I shall refer to the plaintiffs and the Defendant as the Appellants and the Respondent respectively.
The appeal came up for hearing on the 12th day of February, 2019 and J. C. Uwandu Esq. appeared for the Respondent while the Appellants were absent as well as unrepresented by counsel.
?Mr. J. C. Uwandu informed the Court that on 22/11/2018 one A. C. Onubogu of Counsel appeared for the Appellants and informed the Court that the 2nd and 3rd Appellants were deceased and the appeal was then adjourned to 12th February, 2019 for hearing but nothing has been done by the Appellants? Counsel
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about the deceased Appellants. Uwandu Esq. also informed the Court that the appeal was ripe for hearing as all the briefs had been filed, and then adopted his briefs beginning with the preliminary objection, and urged us to dismiss the appeal. The Appellants? briefs were taken as having been argued under Order 19 Rule 9(4) of the Rules of this Court, 2016.
I shall consider the preliminary objection of the Respondent, which was brought under Order 6 Rule 2(3) and 6 of the Court of Appeal Rules, 2011, and Section 6(6) (A) and (B) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is to be observed that this appeal was filed in 2010 and the Notice of preliminary objection was filed in 2013 before the coming into effect of the 2016 Rules of Court. Therefore the corresponding Order now is Order 10 of the Rules of this Court, 2016.
?The Respondent?s preliminary objection contains 4 grounds which are as follows:-
?1. Grounds B, C, E, F and G of the Grounds of Appeal contain particulars that are argumentative to wit: Particulars of error Nos. 5 and 6 of Ground B of Ground of Appeal, particulars of Error Nos.
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3, 4 and 5 of Ground C of Ground of Appeal, particulars of Error Nos. 2, 4 and 6 of Ground D of Ground of Appeal, particulars of Error No. 5 of Ground F of Ground of Appeal, particulars of Error No. 4 of Ground G of Ground of Appeal and ought to be struck out.
2. The issues for determination Nos. 1, 2, 4 and 5 were discussed at large and in vacuum and isolation having not been related or tied to any ground of appeal at pages 212 and 216 of the Record of Appeal and ought to be struck out.
3. The aforesaid grounds of Appeal and Issues for Determination are fundamentally defective and run foul of the Rules of this Court; and
4. This Honourable Court has no jurisdiction to entertain them.?
The preliminary objection was supported by a 4 paragraph affidavit deposed to by one Ugochi Chijioke, a Litigation Secretary in the Law Firm of J. C. Uwandu & Associates, Counsel to the Respondent.
?The preliminary objection prays this ?Court to strike out Grounds B, C, E, F and G of the Grounds of appeal containing argumentative particulars. Or alternatively to strike out Issues Nos. 1, 2, 4 and 5 for being at large and in vacuum and
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isolation having not been related or tied to any ground of appeal at pages 212 to 216 of the Record of Appeal.
The argument in support of the preliminary objection runs into 7 pages with a lot of authorities cited therein. However, there is no necessity to delve into all this for the reason that it does not serve the purpose of a preliminary objection as it does not attack the hearing of the appeal but only some grounds and issues distilled therefrom.
The purpose of a Notice of preliminary objection is, as has been decided in many authorities, to lead quickly to the termination or the dismissal of a matter in limine to avoid the dissipation of energy and valuable time on matters which are not worthy of expending the valuable time and resources of the Court thereon. See UYAELUMUO VS. OBIEZE & ANOR (2018) LPELR?45256 (CA) pp 7?10 paras C?D and YARO VS. AREWA CONSTRUCTION LTD. & ORS. (2007) 6 SCNJ 18. The grouse of the Respondent in this preliminary objection is directed at Grounds B, C, E, F and G of the Grounds of appeal, in the original notice of appeal (pages 212?216 of the Record), leaving out Grounds A, D and H.
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In the alternative, the attack was directed at issues 1, 2, 4 and 5 in the Appellants? Brief of Argument for being at large and in vacuum and isolation having not been related or tied to any ground of appeal.
This Notice of preliminary objection in reality is not an attack against the hearing of this appeal but just a mere quarrel with Grounds B, C, E, F and G and Issues 1, 2, 4 and 5 of the Grounds of Appeal and brief of argument of the Appellants respectively.
Now, what is the legal consequence of this approach? In dealing with this issue the Supreme Court in the case of GENERAL ELECTRIC CO. VS. AKANDE (2011) 4 NSCQR 611 stated thus:-
where as in this appeal the preliminary objection was filed against some grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary objections are only filed against the hearing of an appeal and not against one or more grounds of
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appeal which cannot stop the Court from hearing the appeal.?
In the case of ADEJUMO VS. OLAWAIYE(2014) 12 NWLR (Pt. 1421) 252 at 265 the Supreme Court again reiterated the issue and purpose of preliminary objection in the following words:-
?A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the appeal comes to an end if found to be correct. If sustained, a preliminary objection terminates the hearing of an appeal. Where a preliminary objection would not be the appropriate process to object to show to the Court defects in processes before it, a Motion on Notice filed complaining about a few grounds or defects would suffice.?
Furthermore, the Apex Court in the case of KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) LPELR-42588 (SC) PP6-7 PARAS D-B as follows:-
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a
10
fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe vs Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 C-F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” The fate of a preliminary objection which does not attack the hearing of an appeal but only a few grounds of appeal and or some issues as in this appeal, is that it will be struck out by the authority of UYAELUMUO VS. OBIEZE & ANOR (2018) LPELR?45256 (CA) pp 7?10 paras C?D. I so hold and accordingly strike out the preliminary objection, more so that the Notice of Appeal has been amended thereby overtaking the preliminary objection.
I now move to the main appeal.<br< p=””
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The issues formulated are not tied to any ground of appeal, which makes it cumbersome for the Court as it takes a lot of judicial time to sort out, identify, and tie each to particular grounds of appeal. It behoves counsel to be diligent and more committed in writing briefs of argument. I have however made effort to tie the issues to the grounds of appeal as hereunder:
ISSUE 1 (GROUNDS 1 & 8)
?Whether from the evidence before the Court below the Appellants failed to successfully prove or establish the identity of the land in dispute.?
Chief A. C. R. Onubogu Esq. referred to paragraph 3 of the Further Amended Statement of claim at pages 85?89 of the Record, Exhibit ?A? and PW1?s evidence in chief at pages 101, 103 and 106 of the Record and submitted that the Appellants had proved the identity of the land in dispute, as same was known by both parties to the suit, despite the holding of the learned trial Judge at page 209 that the Appell
