Melford Agala & Ors v. Chief Benjamin Okunsin & Ors

The plaintiffs (who are now the respondents in this appeal) in the High Court of Rivers State holden at Degema claimed the following reliefs as per their amended Statement of Claim against the defendants who are now the appellants in this appeal:-

“(3) A declaration that the 1st Defendant Chief Olunta Alibo whose Chieftaincy emanates from Okoro compound is not a Chief of Okusin compound and therefore cannot be paramount Head of the said Okusin Compound under Kalabari Native law and custom neither can the Plaintiffs come under the jurisdiction of his Chiefdom.

(4) An injunction restraining the 1st Defendant from parading himself as Head of the said Okusin Compound to which the Plaintiffs and 1st set of Defendants belong.

(5) An injunction restraining all the Defendants from accepting recognizing or dealing with the said 1st Defendant as Head of Okusin Polo to which the Plaintiffs and 1st set of Defendants belong.

(6) An injunction restraining all the Defendants their servants and or agents any person or persons acting in trust for or under them for identifying or doing or refrain from doing anything that may be tantamount to identify the said Okusin Polo as Alibo Polo of Ido in Degema Local Government Area of the Rivers State.”

The plaintiffs instituted the action for themselves and in a representative for the Oko family of which they are members. I will summarise the plaintiffs’ case as contained in their amended statement of claim. In 1884 when Ido town was founded there were eight major compounds including Okusin and Okoro. The first daughter of Okusin, Oko together with her household came to the present town of Ido to re-establish the compound. Later her sister Ikpaiko and her son Awo joined her in Ido in the compound named Oko Polo and later changed to Okusin Polo by all defendants at Okusin. After the death of Oko her first son Iganikon became the head of the Okusin family, and was succeeded by Chief Nelson Okusin.

P.1

The plaintiffs traced the history of the defendants’ family and their relationship with the plaintiffs which came about through marriage with Alibo of Okoro compound and so Okusin Polo can never be named after Alibo, which the defendants want to effect vide a letter. The defendants wrote another letter to the plaintiffs’ Head of Okusin family denouncing his headship of Okusin compound. Consequently the plaintiff took the 1st – 4th Defendants before the Ido Council of Chiefs, who asserted that the land upon which the compound was situated was cleared initially by Awo Alibo and his descendant Dewari. The plaintiffs were not satisfied and they initiated a further process to Abbey House of Buguma, the arbitration of which the 1st – 4th defendants declined. The actions of the defendants led to the institution of this action in the High Court.

The defendants in their amended statement of defence denied most of the plaintiffs’ allegations, adding that at the arbitration, both parties paid the arbitration fees and were sworn with their witnesses on oath under pain of death to speak the truth before the decision was given. For that they relied on waiver, estoppel per rem judicatam, and estoppel by conduct. The defendants denied that Okusin and Okoro were any of the eight major compounds/house at the time of the settlement at New Ido in 1884, but that their chieftaincy stools were created by members of their families. They denied that Oko established or headed the Okusin family as it was even contrary to Kalabari Custom. They traced their rights and roots to Alibo, their own ancestor.

After the completion of pleadings both parties adduced evidence, which were evaluated by the learned trial judge who at the end of the day entered judgment in favour of the plaintiffs. Dissatisfied with the decision, the defendants appealed to the Court of Appeal, which affirmed the decision of the trial court, and dismissed the appeal.

P.2

The defendants have again appealed to this court on four grounds of appeal. The plaintiffs are also dissatisfied with certain aspects of the decision and they have cross-appealed. As is the practice in this court, both parties exchanged briefs of argument which were adopted at the hearing of the appeal.

The appellants field appellants’ reply brief of argument, in which they re-argued this appeal, which negates the purpose of an appellant’s reply brief of argument. The purpose of a reply brief of argument is meant to give an appellant the advantage of replying to new points of law raised in a respondent’s brief of argument which he may wish to clarify, and not to repeat his earlier argument. See Vincent Standard Steel (Nigeria) Limited v. Government of Anambra State 2001 8 NWLR Part 715 page 454, and Ifejika v. Oputa 2001 11 NWLR Part 725 page 583.

I will deal with the main appeal first before proceeding with the cross-appeal. In the appellants’ brief of argument are the following issues for determination.

“1. Whether it was right in law to hold that the reliance on Exhibit P.4 by the trial court did not occasion miscarriage of justice.

2. Whether it was right decision to reject the plea of appeal per rem judicata upon evidence based on unpleaded facts.

3. Whether the facts as found for the Respondents were derived from their pleadings and whether the evidence presented in defence was controverted. If no, whether the Respondents proved their case on a balance of probability as required by law.”

The single issue formulated for determination in the respondents’ brief of argument is:-

“Whether the evidence adduced in this case is so overwhelming, Exhibit P.4 not withstanding to justify the decision of the Court of Appeal confirming that of the trial court.”

P.3

I will adopt the appellants’ issues for the treatment of this appeal, commencing with issue (1). The excerpt of the lower court’s judgment which learned counsel for the appellants in quarreling with under this issue reads as follows:-

“I uphold the submission of the learned counsel in this regard that the trial judge was wrong in using Exhibit P.4 which was prepared during the pendency of the case. However, without Exhibit P.4 the court would have come to the same conclusion it did having regard to the contents of Exhibit P.1 and P.2. This means that the improper use of Exhibit P.4 has not led to miscarriage of justice.”

According to learned counsel the court did not state the portion of Exhibits P.1 and P.2 that could have supported the conclusion of the learned trial judge. He further contended that in arriving at his conclusion the learned trial judge did not take into consideration the evidence of the 1st set of defendants that only descendants of Alibo collect taxes in the compound, that the 1st Defendant who was the paramount chief of Alibo lives in the house built by Dewari and that house was built in the centre of the compound with a shrine, that Dewari and Awo were buried there, that none of the plaintiffs’ ancestors was buried in the compound, and that the Alibos allocate land to the Okusin. It is the submission of learned counsel that if these pieces of evidence were taken together by the two lower courts, their decisions would have been different.

In his reply, the learned counsel for the respondents has argued that the above contention of the appellants cannot be taken in any way as credible grounds or evidence to change the justice of the case as decided by the lower courts. According to learned counsel they are not enough to suggest that the compound’s name is “Alibo” as against the contents of Exhibits P1 and P2 and the obvious fact and finding that the compound had from the on set been known and called Okusin compound.

P.4

There is no evidence that the beneficiaries of these taxes are limited to the Alibos or that others are restricted from burying their dead therein. In short, these evidence are not relevant to the issue in controversy, and the fact that they were not controverted was not material.

Perhaps I should look at the premise the claim was predicated on in the trial court vis-a-vis the evidence adduced by the parties. The first relief sought in the plaintiffs’ pleadings being the main relief has been reproduced above and it speaks for itself. In their amended statement of claim the plaintiffs/respondents made the following relevant averments:-

“17. From time beyond memory, the Plaintiffs compound has been known as Okor compound at one time and Okusin compound as it later came to be called. It has never been and cannot under Kalabari native Law and Custom as Alibo compound as no compound in Kalabari is named after the person who merely relates to it by marriage.

18. 1st Plaintiff who is acknowledged as the Chief of Okusin compound has under his jurisdiction the whole descendants of Okusin including the 2nd and 4th Defendants. The 1st Defendant though a Chief of Okoro compound also subscribes to the 1st Plaintiff’s jurisdiction when he comes over to the compound for family matters.

19. Sometime in July, 1985 2nd to 4th Defendants (Inclusive) wrote a letter to the 5th Defendants in his official capacity notifying him of a purported change of name of the Plaintiffs’ compound to Alibo compound. They also in that document misrepresented and wrongly stated the history of Okusin compound. Plaintiffs will found upon the letter.

20. Similarly, by another letter dated 9th July, 1985 the 2nd, 3rd and 4th Defendants wrote to the Plaintiff who is the Head of Okusin compound purporting to pass a vote of no confidence on him and stating inter alia that they do not recognize him again as Head of Okusin compound and the lineage of the 1st Plaintiff. The said letter is hereby pleaded. These letters were written without the knowledge and consent of the Plaintiffs.

P.5

In joining issues with the plaintiffs the defendants/appellants averred thus in their amended statement of defence:-

“15. Defendants in answer to paragraph 18 of the Statement of Claim aver that 1st plaintiff is the Chief of the Okusin Chieftaincy stool in Alibo compound (not Okusin compound). As stated in paragraph 9(e) this stool is under the paramount chieftaincy stool of Chief Alibo 1st Defendant. Chief Olunta Alibo is Chief of Alibo compound (not Okoro Compound as there is none). 1st Defendant in his capacity as Paramount or Head Chief of Alibo’s compound presented the 1st Plaintiff to the town during this installation as the Chief of Okunsin stool in 1976. Nobody had even acknowledged 1st plaintiff as Chief of Okusin Compound. Except as herein averred paragraph 18 of the Statement of Claim is denied.

16. Defendant (1st set) in answer to paragraph 19 and 20 (sic) of the Statement of Claim admit writing the two letters. The first was written on 9th July, 1985 to 5th Defendant as Amadabo of Ido with a copy endorsed to 1st Plaintiff of the resolution of the Alibo House of attempts being made by Oko’s descendants to change the name of Defendants (1st set) compound from Alibo Polo (compound) to Oko Polo by frequent reference to Aliobo Polo as Oko Polo or Okusin Polo. The second letter also dated 9/7/85 was written to 1st Plaintiff notifying him of the vote of no confidence in him by Ikpaiko’s children and not to recognize him (1st Plaintiff) as Chief Benjamin Okusin. Both letters were signed by Defendants in various capacities the earlier by 3rd and 4th Defendants on behalf of the Alibo House and the later by 2nd, 3rd and 4th Defendant for Ikpaiko’s children who claim equal right to the Okusin stool with 1st Plaintiff.

P.6

The authors of both letters in their capacities do not require the knowledge or consent of the 1st plaintiff before doing so.”

I will now reproduce the evidence of the plaintiffs in proof of the above material pleadings. The 4th plaintiff who testified as PW1 gave the following material evidence:-

“Sometime in July 1985, the 2nd and 4th Defendants wrote a letter to the 5th Defendant (the Amadabo of Ido) notifying him of a purported change of our compound from Okusin’s compound to Alibo’s compound. The letter was copied to our head chief – 1st plaintiff – and he gave it to me to read if for him since he cannot read and write………

On 9/7/85 my head chief also gave me another letter to read for him which I did. It was written by 2nd, 3rd and 4th Defendants ……”

The letter mentioned in the evidence were admitted in evidence as Exhibits P.1 and P.2. In the course of cross examination the witness said inter alia thus:-

“The issue in this case is that we call it Okusin’s compound while the 1st set of Defendants call it Alibo compound. I deny your suggestion that there is nothing like Okusin’s compound in New Ido. Rather there is no Alibo compound.”

At this juncture I will reproduce the content of Exhibits P.1 and P.2 for a proper understanding of the complaint and graveman of the issue in controversy. Exhibit P.1 reads:-

“Your Royal Highness,

ALIBO POLO (COMPOUND)

We had (sic) been directed to inform you and the Ido Council of Chiefs that the following decisions were taken at a full meeting of the Alibo House on the 29th June, 1985.

P.7

1. That when the town moved from Elem Ido to the new settlement, all families first settled at Opuje Poku while bushes were being cleared.

2. The bush clearing in our compound was done by our fathers in the persons of late Dawa II Alibo and Awo Alibo.

3. After the bush clearing, families moved from Opuje-poku to their respective compound and these compounds were named after their FATEHRS e.g. Eguere, Esuku, Alibo just to mention a few.

4. In the case of our compound the public had been misled over the years by calling it names like Oko Polo, Alibo Polo and recently Okusin Polo.

5. The Chiefs and the entire people of Alibo compound have now resolved that as from now the compound should be called ALIBO POLO AND CHIEF OLUNTA AWO ALIBO is the Head of the compound……”

The pertinent question to ask here is if the compound in controversy was originally called Alibo as per the content of paragraph (3) supra, then how did it get to be called Oko Polo, and Okusin Polo later, as per the content of paragraph (4) supra? It is difficult to fathom the reason why the name would undergo series of changes. If it was Alibo, the most likely situation is that it should continue to be Alibo without any break and the defendants would not as at 29th June, 1985 be seeking to rename the compound Alibo. It is most unlikely and inconceivable more so the history of the compound vide the evidence of plaintiffs witness No. 1 reproduced supra is supported by paragraph (4) of Exhibit P.1, in that it said that the compound was recently named Okusin Polo from Oko Polo, not Alibo. The learned trial judge believed the evidence of the Plaintiffs and found as follows in his judgment:-

“I believe them at first the compound (as is confirmed in paragraph 4 of exhibit P1) and that later they changed it to the name of their ancestor – Okusin (the father of Oko and Ikpaiko).”

P.8

The position of the law is that the realm of believing any witness is within the prerogative of a trial judge who had the singular advantage of seeing and listening to a witness who gave evidence in his court. Any finding based on such evidence cannot be faulted by an appellate court who had no such advantage but is confined to the record of proceedings before it. See Iwenofu v. Iwenofu (1975) 9 – 11 SC. 79, Governor v. Laniba (1974) 10 SC 227, and Gwawoh v. C.O.P. (1974) 11 SC. 243.

Then Exhibit P.4

On the same 9th of July, 1985 when Exhibit P.1 was written Exhibit P.2 was also written, but Exhibit P.2 was addressed to the 1st respondent Benjamin Okusin, and it reads:-

“We are directed to inform you that the off-springs of Mrs. Ikpaiko Alibo (Nee Ikpaiko Okusin) have resolved during their general meeting that they have been unanimously passed a vote of no confidence in you as Chief Benjamin Okusin.

Following this resolution, the children of Mrs. Ikpaiko Alibo will neither attend your meeting nor recognize you as Chief Benjamin Okusin in Ido council of Chiefs.

You are quite aware that the Chieftaincy stool which you are representing is legitimately owned by the two great mothers Oko and Ikpaiko.

Your mother Mrs. Ikpaiko Alibo (Nee Ikpaiko Okusin) took this decision so as to maintain the existing cordial relationship within the two families”.

Underlining is mine.

I am not sure I understand what the authors of Exhibit P.2 mean by the first underlining, for what is intended is not clear to me. To me it is bereft of any meaningful impact on the subject matters as a simple interpretation will be that they had no confidence in him as a person, as opposed to him as a family or compound head.

P.9

On the second and third underlinings the authors have conceded that the stool is owned by their ancestors and so their two families. All the above reproduced pieces of evidence have established the fact that the head of the 1st respondent/plaintiff Benjamin Okusin was the head and chief of the Okusin family to wit the 1st set of defendants/respondents belong and it is he who calls the meetings they attend. The fact that it was in that year of 1985 that they resolved to call the compound Alibo compound reinforces the case of the plaintiffs/respondents. All the pieces of evidence were neither controverted nor discredited by the appellants in their evidence.

Civil cases are determined preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim. See Elias v. Omo-Bare (1982) 5 sc 2, Woluchem v. Gudi (1981) 5 SC page 291, Elais v. Disu (1962) 1 All NLR, Page 214, and Imana v. Robinson (1979) 3-4 SC. 1, and section 135 of the Evidence Act Cap. 112 Laws of the Fedeation of Nigeria, 1990.

On Exhibit P.4, the learned trial judge in his judgment posited and found thus:-

“In Exhibit P.4, memorandum written on 29th June, 1988, the Amadabo of Ido, Chief Felix Owukio Eguere (who is the 5th Defendant in this suit) submitted inter alia, that the following Chieftaincy stools are operation in Ido-Opuwariboko, Esuku, Prabo, Oyibo, Ngo, Alibo, Alawarifaa, Iga, Odio, Biki, Suku, Toboitemea, Ebenibo, Ogbo, Owoyo, Okusin and Okoro stools.

That document was made by the 5th Defendant, and relied upon by the Plaintiffs it shows, therefore, and I accept, that all those chieftaincy stools are operational now at Ido town.

P.10

That takes care of those names that are in dispute namely Ngo, Alibo, Okusin and Okoro. All of them have been recognized by Ido as chieftaincy stools that are operational now at Ido.”

The lower court in its lead judgment did agree that reliance on Exhibit P.4 by the learned trial judge was wrong in view of the fact that it was made by a party during the pendency of the suit. Having done so, I think his further pronouncement on Exhibits P.1 and P.2 was in order and not wrong in law. In the light of these discussions I resolve the issue in favour of the respondents, and dismiss ground (1) of appeal to which it is married.

Now to issue (2) in the appellants’ brief of argument. The grouse of the appellants under this issue is the finding of the lower court which reads:-

“In this case, however, it is clear that the respondents were not satisfied with the decision of the native tribunal and appealed to a higher tribunal but the appellants by their own showing refuse to appear before the higher appellate tribunal, it follows therefore the traditional arbitration process dad not been concluded”.

As facts and evidence in a case have their root in pleadings, I will reproduce the relevant pleadings that touched on the native arbitration mentioned above. In paragraph 22 or the amended statement of claim the plaintiffs pleaded thus:-

“22. The Chiefs wrongly decided thus: that since the land on which the compound is situate was cleared and prepared initially by Awo Alibo and one Dewari who they alleged was also Alibo’s descendant, the act of the 1st to 4th Defendants was in order. In doing this, the 5th to 12th Defendants never considered the version of the Plaintiffs neither did they give reason for preferring one version to the other. The Plaintiffs immediately rejected the decision and informed all the Defendants of their intention not to be bound by same. They subsequently issued a summons against the 1st to 4th Defendants before the Abbey House of Buguma the Arbitration of which the 1st to 4th Defendants declined.”

P.11

It is the contention of the appellants’ counsel that the evidence of the plaintiffs that appeal emanates from the decision of Amadabos to the Abbey house, and since that was not pleaded, the evidence should have been ignored as it goes to no issue. He placed reliance on the cases of Akinola v. Oluwo (1962) SCNJ 117 and Emegokwe v. Okadigbo (1973) 4 S.C. 113. According to learned counsel for the appellants when the evidence on the appeal is question of ‘appeal’ is ignored the decision of the court below has no foundation and it is liable to be set aside. It is indeed a cardinal principle of law that pleadings are summary of the facts of a case that must be served on an opponent to enable him be on notice of the facts to contend with in court at the hearing. The purpose of pleadings is to avoid springing surprise on the other party, and by the content of paragraph (22) supra the plaintiffs have not sprung and surprises on the defendants, by PW1 merely adding the word ‘appeal’ in his evidence. See George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR Page 117, George v. U.B.A. Ltd. (1972) 8 -9 SC. Page 264, and Oduka v. Kasunmu (1968) NMLR Page 28.

It is indeed another principle of law that parties are bound by their pleadings and must not go beyond what they have pleaded in their evidence, as doing so will render the evidence so given a non-issue, and liable to struck out.

Conversely, as pleadings make for economy the trite law is that parties are not required to plead evidence, and authority abounds on this principle of law. See A.G. Kwara State v. Alao (2000) 9 NWLR (Part 671) Page 84, and Okeji v. Olokoba 2000 4 NWLR Part 654 page 513.

P.12

As a matter of fact a careful perusal of the last sentence of the reproduced paragraph (22) above can to my mind be interpreted to mean an appeal, as the action followed the dissatisfaction of the plaintiffs on the earlier action to the native tribunal as is contained in paragraph (21) of the amended statement of claim, which is as follows:-

“21. Pursuant to the above, plaintiffs sued the 1st to 4th Defendants before the Ido Council of Chiefs presided over by the 5th Defendant. At the native arbitration to decide the matter in which the 5th to 12th Defendants attended. Both sides were asked to state their case wherein the council adjourned to give a decision”.

In essence I am satisfied that there was proper pleading to back the evidence of PW1 complained against, and so the findings of the two lower courts had foundation. Issue no (2) in the circumstances has to be resolved in favour of the respondents, and so ground of appeal no. (2) to which it is related fails, and it is hereby dismissed.

In arguing issue (3) of the appellants, the learned counsel for the appellants referred to paragraphs 9(c), 10(c)15, 13(b), 18(c) and (v) and 27 of the amended statement of defence and their supporting evidence. This issue revolves around weight of evidence and appraisal. Perhaps I should reproduce some of the paragraphs and their evidence as stated in the appellants’ brief of argument, staring with a party of paragraphs 9(c) which reads:-

“9(c) …Oko, aged at the time, died at Opuje Poku at new Ido where all Ido people first camped before moving to their various compounds established at the time.”

“9(e)…Nelson Alele (now late)… was selected and finally installed on 2nd July 1958 as the first Chief Okusin. At that time Chief Hargrove Dewari Alibo III (now late) was head of Alibo compound and he presented him (Chief Nelson Okusin) to the Town during installation.

P.13

By custom, it is the head or Paramount Chief of the Compound that presents Chief under him to the Town during installation at new Ido”.

10(c) By kalabari custom, canoes are led by the House Chief or Head of the House never by women especially during the time of war as was the case in 1884 and land is never allotted (sic) or allocated to women to clear for settlement especially at new Ido.. Also because it was (sic) was period in 1884 women were never involved in such exercises”.

The learned counsel for the appellants has argued that since the defendants/appellants gave evidence that were not contradicted in support of the above pleadings, and the respondents failed to file a reply to the said pleadings, the appellants’ evidence on the pleadings stands to be discountenanced. He placed reliance on the cases of Akeredola v. Akinremi (1989) 3 NWLR (Pt. 1080 Pg. 164, and Pan Bisibilder Ltd. v. First Bank Ltd. (2000) FWLR Part 2 Pg. 177. Learned counsel further submitted that since the evidence of the defendants was not controverted, it ought to have been accepted by the trial court as unchallenged and referred to the case of Oforlette v. State (2000) FWLR Part 12 Pg. 2081.

A trial judge at the stage of writing a judgment and making findings and decisions, appraises the evidence of each side of the divide, and give the evidence of each side the probative value it deserves before arriving at a just conclusion of the case. In the process of doing so he determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses. See the cases of Governor v. Laniba, Iwenofu v. Iwenofu and Gwawoh v. C.O.P. supra.

P.14

I use the word relevant above to qualify the evidence, for it is important that the quality of the evidence is considered, as it is not all evidence adduced in a suit that is relevant to the issue or matter in controversy. Some witnesses ramble on and on matters that are not correlated to the pivot of the case. In the instant case many aspects of the evidence adduced by the defendants even if not contradicted were not of relevant consequence to the claim.

The learned trial judge after a careful evaluation of the evidence before him in his judgment posited the following:-

“I do not, therefore, believe the Defendants’ witnesses that the compound at new Ido was established by Awo and Dewari. I do not believe them that the compound is known as Alibo compound.

I believe the Plaintiffs’ witnesses that the compound was established by Oko. I believe them that it was Oko who later brought Ikpaiko, and her son Awo to that compound, and that was how the 1st set of Defendant, who are the descendants of Ikpaiko came to live in the same compound with the Plaintiffs. I believe them that at first the compound (as is conformed in paragraph 4 of Exhibit P1) and that later they changed it to the name of their ancestor-Okusin the father of Oko and Ikpaiko”.

The lower court as per the lead judgment endorsed the above conclusion thus:-

“I agree entirely with the conclusion of the trial court which in my view was the most reasonable conclusion from the facts before it.”

The learned trial judge definitely adhered and applied the principles in Odofin v. Mogaji & Ors. (1978) NSCC Page 275 where Fatayi-Williams JSC (as he then was) enjoined the courts thus;-

P.15

“In short, before a Judge before whom evidence is adduced by the parties before him in a civil cases comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the judge will naturally have regard to the following:-

(a) whether the evidence is admissible;

(b) whether it is relevant;

(c) whether it is credible;

(d) whether it is conclusive, and

(e) whether it is more probable than that given by the other party.

Finally, after invoking the law, if any, that is applicable to the case; the trial judge will then come to his final conclusion based on the evidence which he has accepted.”

In the light of the above argument I answer this last issue in the affirmative, and dismiss grounds of appeal nos. (3) and (4) which covers the issue. This is an appeal on concurrent findings of facts which the law does not permit an appeal court to interfere with unless the findings are not supported by credible evidence are perverse and have led to miscarriage of justice. In the instant case, the findings are supported by credible evidence and they cannot be faulted; and there is no palpable error in them. This court cannot and will not therefore disturb them. See the case of Chikere v. Okegbe (2000) 12 NWLR Part 681, page 274, Salami v. Gbodoolu (1997) 4 NWLR Part 499, page 277 and Ibodo v. Enarofia (1980) 5 SC Page 412.

P.16

The end result is that the appeal completely lacks merit and substance, in which case it must be dismissed and I dismiss it. I assess cots at N50,000.000 in favour of the respondents against the appellants.

The respondents filed a cross-appeal against the judgment of the Court of Appeal on a single ground of appeal; to wit briefs of argument were exchanged. In the course of the treatment of this cross-appeal I will refer to the cross-appellants, as the appellants and the cross-respondents as the respondents. A notice of preliminary objection against the cross appeal was raised by the respondents, for an order striking out the cross-appeal for being incompetent. The ground of the objection reads as follows:-

“The notice of Cross-Appeal filed on 8th March, 2002, is incompetent for non-compliance with Order 8 Rule 2(1) of the Supreme Court Rules in that it does not contain any ground.”

At this juncture I will reproduce the said order 8 Rule 2(2). It reads:-

“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or party only of the decision of the court below is complained of (in the latter case specifying such party) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service”.

I will also reproduce sub rule (2). It reads;-

“(2) If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated”.

P.17

The learned counsel for the respondents in this appeal has submitted that any notice of appeal is incompetent because it is from the ground of appeal an appellate court will be able to determine whether the issues brought on appeal relate to the judgment. He placed reliance on the case of Saraki v. Kotoye (1992) 9 NWLR (Part 264) page 184 and Egbe v. Alhaji (1990) 1 NWLR (Part 128) Page 546. It is counsel’s prayers that the notice of cross-appeal be struck out.

The leaned counsel for the appellants has not deemed it necessary to file cross-appellants’ reply brief of argument to address and reply the submissions on the notice of preliminary objection. That leaves me therefore with only the argument of the respondents.

In order to understand the complaint of the respondents, one will have to carefully peruse the ground of appeal in the notice of cross-appeal. It is on record that no ground of appeal was actually stated, only particulars. I will reproduce it as it is in the notice of cross-appeal here below. It reads-

“GROUNDS OF APPEAL

(i) ERROR-IN-LAW

PARTICULARS OF ERROR

1. Exhibit P4 is relevant and goes to the crux/basis of the matter before the trial court.

2. Though made during the pendency of the case, it was made by the maker not as a party to the case or in a personal capacity but in his official capacity as Amayanabo of Ido Community.

3. When a party makes a document during the pendency of a case “in his official capacity” such relevant document is admissible and is not hampered or rendered inadmissible by the provisions of Section 91(3) of the Evidence Act”.

P.18

The above clearly shows that ground of appeal is missing. I don’t know if this was inadvertently, for I cannot fathom how an appellant can take the pains of stating particulars of error, without stating the ground of appeal from which the particulars flow. It is like packing load on a legless donkey, which because of its incapacity cannot convey the load to its destination. Order 8 Rule 2(1) supra talks of grounds of appeal and sub rule (2) also reproduced above presupposes that there must be grounds of appeal before particulars will follow there under. The failure to state the ground of appeal rendered the particulars of error in the notice of cross-appeal useless and of no effect. There is to my mind and for all intent and purposes no ground of appeal to support the notice of cross-appeal. Since what we have is only the half hearted attempt at a single ground of appeal, and there is no other ground of appeal, I would conclude that no appeal exists whatsoever, after the sole purported ground of appeal would have been struck out as argued by the learned counsel for the respondents.

In fact, I am not only striking out the ground of appeal for being incompetent but the whole cross-appeal, which in essence has no ground of appeal to sustain it.

In the final analysis I strike out the cross-appeal, and award the cost of N50,000.00 in favour of the respondents, against the appellants in the cross-appeal.