➥ CASE SUMMARY OF:
Jos Metropolitan Devt Board v. Umealakei & Anor (2020) – CA
by “PipAr” Branham-Paul C. Chima (SAL)
➥ COURT:
Court of Appeal – CA/J/481/2019
➥ JUDGEMENT DELIVERED ON:
Friday, September 18, 2020
➥ AREA(S) OF LAW
Interlocutory appeal;
Leave of court to appeal.
➥ PRINCIPLES OF LAW
⦿ WHAT IS AN OMNIBUS GROUND?
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. — M.N. Oniyangi, JCA.
⦿ OMNIBUS GROUND OF APPEAL REQUIRES LEAVE OF COURT
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. — M.N. Oniyangi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Mudashiru Nasiru Oniyangi, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
D. Dashe, Esq.
⦿ FOR THE RESPONDENT
Kekemeke, Esq.
➥ CASE FACT/HISTORY
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.
The 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.”
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.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: SUSTAINED]
I. Whether leave of Court ought to be sought before this appeal is instituted?
RULING: IN RESPONDENT’S FAVOUR.
A. LEAVE OF COURT OUGHT TO HAVE BEEN SOUGHT BY THE APPELLANT
“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.”
“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.”
“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.”
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.
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✓ DECISION:
“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.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
