POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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COURT OF APPEAL
MONDAY 24TH MAY, 1993.
9 NWLR (Pt. 316) 224
BEFORE THEIR LORDSHIPS
UTHMAN MOHAMMED, J.C.A (Presided)
OKAY ACHIKE, J.C.A. (Read the Leading Judgment)
MURITALA AREMU OKUNOLA, J.C.A.
Prince J.O. Ijaodola -for the Appellants
Chief O.A. Ogundeji -for the Respondents
APPEAL – Brief writing -Brief of argument – Citing of legal authorities – Need for authorities to be tied with issues – Insufficiency of.
APPEAL -Brief writing -Failure to argue an issue in brief of argument -Attitude of Court thereto.
APPEAL – Brief writing – Need to present all legal arguments succinctly.
APPEAL – Brief writing – Rules guiding
APPEAL -Findings of fact by trial court-Attitude of appellate court thereto -When it will interfere
COURT -Appellate court -Attitude of to findings of fact of trial court- When it will interfere .
COURT – Duty on court to act on facts placed before it only.
COURT – Pleadings – Amendment of – Whether court can do so suo motu.
CRIMINAL LAW AND PROCEDURE – Criminal Trespass – Offence of – How constituted – Ingredients of
DAMAGES – General damages – Award of – Nature of
DAMAGES – Special damages – Claim for value of economic trees – Need to establish by evidence items of economic trees destroyed.
DAMAGES – Special damages – Need to particularise – Effect of failure to particularise
EVIDENCE – Proof of civil claim – Allegation of crime made – Burden of proof on Party making allegation – How discharged – Section 137 Evidence Act considered
EVIDENCE – Section 137 of Evidence Act – Import of .
JUDGMENT AND ORDER – Decision – Reference to wrong section of the law therein – Whether affects validity of decision – When it will so affect it.
LAND LAW – Trespass – Criminal trespass – How constituted
LAND LAW – Trespass – Requirement of survey plan -When necessary – When not necessary.
LAND LAW – Trespass – Specific portion of land trespassed upon – Need to establish – Burden of – On whom lies.
LAND LAW -Trespass -What claimant must establish.
LAND LAW – Trespasser in possession – Whether can sue for trespass
PRACTICE AND PROCEDURE – Findings of fact by trial court – Attitude of appellate of court thereto – When it will interfere
PRACTICE AND PROCEDURE – Appeal – Brief writing – Complaint in Brief – Failure to justify with legal argument – Effect.
PRACTICE AND PROCEDURE-Pleadings -Amendment of-Whether court can do so suo motu.
PRACTICE AND PROCEDURE – Proof of civil claim -Allegation of crime made -Burden of proof on party making allegation -How discharged – Section 137 Evidence Act considered.
TORT – Criminal trespass – Offence of – How constituted – Ingredients of.
ACHIKE, J.C.A. (Delivering the Leading Judgment): By their writ of summons, the plaintiffs, herein appellants, sued the defendants, now respondents, for trespass and claimed N50,000.00asgeneral and special damages. The appellants averred that the land trespassed upon was part of the land earlier adjudged in their favour in a land suit, Suit No. IAC/CV22/86, decided by the Ibolo Area Court Grade 1, Offa, on 19.10.87. The respondents’ defence was a complete denial of any act of trespass on the appellants’ said land. At the close of the case, the learned trial Judge dismissed the appellants’ case in its entirety.
Aggrieved by the dismissal of their case, the appellants appealed against the decision, having duly filed their grounds of appeal. Both parties filed and exchanged briefs of argument and at the hearing before us, their learned counsel simply adopted their briefs, each learned counsel identified issues for determination. Prince J.O. Ijaodola, learned appellants’ counsel formulated the following issues for determination:
“i. is section 137(1) and (2) of the Evidence Act applicable to this suit?
iii. does it matter which part of the adjudged land was trespassed upon.
For the respondents, their learned counsel Chief O.A. Ogundeji identified three issues, namely,
“1. Whether on the evidence before the trial court, the plaintiffs were entitled to judgment when:
(b) they failed to comply with requirements of section 137 Evidence Act to prove their case that the defendants destroyed their economic trees, particularly when they did not:
(i) call the driver of the caterpillar to give evidence to clarify the person who instructed him to destroy the economic trees.
(ii) report the matter to the police or take any criminal action against the defendants.
(iii) describe with certainty where the defendants were alleged to have committed the criminal trespass.
A close look at the grounds of appeal justifies that three issues set out below are sufficient to deal with the complaints raised in this appeal:
On Issue No. 1, the submission of learned counsel, Prince Ijaodola on behalf of the appellants, was characteristically terse and deplorably scanty. Being very brief, it is hereunder reproduced verbatim for ease of reference. It runs thus:
“It is humbly submitted my Lords that section 137(1) and (2) of the Evidence Act as (sic) irrelevant to the case before the learned trial Judge and the misconception of its applicability to the case has occasioned substantial miscarriage of justice.”
In response, Chief Ogundeji submitted that since the alleged acts of trespass levelled against the respondents, if proved, could constitute an offence of criminal trespass under section 348 of the Penal Code, it followed that the trespassory acts involved the commission of a crime the trial court was right in his reference to section 137(1) and (2) of the Evidence Act, having regard to the scantiness and unsatisfactory nature of the evidence adduced at the trial. In any event, learned counsel submitted that from the record of appeal (at p. 21) it was clear that the decision of the learned trial Judge was reached and based on preponderance of evidence.
It is pertinent to first make some prefatory remarks on the quality of the appellant’s brief before examining of the arguments on the issues. The brief is deplorably short, covering less than two pages and a half. The submission in respect of issue No. 1, for example, earlier reproduced above, comprises one sentence. There is no argument put across by learned appellants’ counsel to back up his submission on the issue. This is unfortunate and unsatisfactory. It is not my understanding of proper brief writing that learned counsel is to sacrifice the proper presentation of his client’s case on appeal on the altar of brevity. To do so is to cause incalculable injustice to the unsuspecting and professionally uninformed client. While by its very nature an appellant’s or respondent’s brief is expected to be short, nevertheless a counsel engaged to prepare a brief for a party to an appeal must assiduously apply himself to this professional duty by always ensuring that all the salient and crucial legal arguments that can be made on behalf of that party are presented with the utmost pellucidity which are substantially in accordance with the mandatory statutory provisions for brief writing. The Rules for brief writing have been in operation for a pretty while that legal practitioners in this court and the Supreme Court cannot now afford to feign ignorance of their import. For a counsel to present an abominably short brief completely bereft of legal arguments in the avowed belief that a brief must be brief is not only a disservice to his client but an unfortunate compromise of his client’s legal rights. Practitioners at the courts are especially lucky that judicial pronouncements are replete, and there is also the well-researched work – Brief Writing in Appeal and Supreme Courts in Nigeria by Hon. Justice P.N. Ago – on the mode of brief writing acceptable to the courts. It is hoped that maximum advantage should be taken of all available legal literature in this connection.
It may also be observed that in compliance with the rules for brief writing, learned appellants’ counsel has, rightly in my view, attached a list of legal authorities at the end of his brief. Thereafter no mention is made of the said authorities in the body of the brief. This is an invidious situation. Without the authorities being specifically tied to any issue, it is unimaginable how the opposing counsel or the court can appreciate the relevance of such authorities in relation to the legal arguments proferred by the brief-writer in his brief. Clearly, this approach is a misconception of the Rules governing brief writing. Counsel is not obliged to cite or refer to legal authorities where the legal issue raised is so notorious and common place; he will presume the court is familiar with the point and need not be saddled with the necessity of citing further legal references or literature. Where, however, counsel, in his wisdom, advances legal arguments which are not so common place, or are within the grey areas of the law, in order to carry the court and the opposing counsel with him, the usual practice is to interlace or interweave his arguments with applicable legal authorities in support of his contention. In other words, counsel is expected to blend his arguments with appropriate legal authorities which the court is obliged to consider before determining the point raised by him. To, therefore, furnish a lengthy list or legal authorities which is attached to the brief and without making any further reference to the authorities in the body of the brief will make the authorities unhelpful. The court cannot, in justice, act on such authorities. They must be discountenanced. For all I have been saying, it follows that since it, is not the duty of the court to speculate on why, or for what purpose the legal authorities have been listed, I shall ignore the decided cases so listed by learned appellant’s counsel, which is a polite way of saying that learned appellants’ counsel did not cite a single reported decision to buttress his legal arguments.
Now on Issue No. 1, no appreciable argument has been preferred on behalf of the appellants. In other words, learned appellants’ counsel has in fact not argued Issue No. 1. In that case, there is no legal obligation on respondents’ learned counsel to offer a response. No doubt, the court will feel but obliged to strike out such unargued issue on the ground that it has been abandoned. See Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364; (1987) 7 SCNJ 84. Ex cautela abundatia, respondents’ learned counsel has advanced arguments on Issue No. I in reply to appellant’s purported argument which has been reproduced above, it is therefore, imperative that consideration must be given to it. Looking at ground 1 of the Grounds of Appeal from which Issue No. 1 above, as well as the appellants’ Issue No. 1 was formulated, it is manifest that the core of appellants’ complaint is the learned Judge’s reference to section 137(1) and (2) of the Evidence Act, for learned counsel was in no doubt – indeed, he readily conceded – that the suit on appeal was determined on preponderance of evidence. Therefore, at best, the complaint under Issue No. 1 is the erroneous reference to that section of the Evidence Act. I am clearly of the view that mere erroneous reference to a section of the law which does not form the basis of the decision will not of itself alone avoid an otherwise valid judgment decided on sound principles or provisions of the law. Of course, it will be otherwise if a judgment is substantially based on erroneous legal principles or on wrong provisions of the law.
In her judgment, the trial Judge cursorily stated that the appellants did not comply with the provisions of section 137(1) and (2) of the Evidence Act. Thereafter, no further reference or allusion was made to that section of the Evidence Act. Section 137(1) and (2) of the Evidence Act states as follows: “137(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
The import of the provisions under these two sub-sections of section 137 is tolerably clear. Briefly, a person, who asserts the commission of a crime in any civil proceedings wherein that criminal act is directly in issue, must prove the commission of that crime beyond reasonable doubt. It must be stressed that for the appellants to be subjected to this heavy burden of proof, there must have been specific allegation of such a crime in their pleadings. The allegation herein borders on the offence of criminal trespass punishable under section 348 of the Penal Code. For the offence to be constituted, it must be averred and proved inter alia, that the appellants are in possession of the land upon which trespass was committed. There is no averment in the appellants’ scanty pleadings that they, at all material times, were in possession of the said land which had been adjudged in their favour. It is clear that the appellants, in the circumstances, did not prove nor could they over prove the offence of criminal trespass against the respondents beyond a reasonable doubt when there is no evidence to establish that they are in possession of the said land. It follows that if the question of reference by the trial Judge to section 137(1) and (2) should be understood to mean that the appellants failed to attain the high standard of proof enjoined by these two sub-sections, no doubt, the learned trial judge was right in so holding. See Benson Ikoku v. Enoch Oil (1962) 1 SCNLR 367; (1962) All NLR l , at pp. 119-200 and Nwobodo v. Onoh (1984) 1 SCNLR 1 at p. 4.
It is perhaps necessary to add that it is an elementary but fundamental requirement of law that whoever claims in trespass must establish, as a condition precedent, that he is in possession of the land, be the complainant the owner of the land in question or not. This is so because trespass is legally understood to mean a wrongful interference with plaintiff’s possession of the property in question. It is for this reason that a trespasser to land and who is in possession of the said land can successfully sue a subsequent trespasser to the same land.
While evaluating evidence, the learned trial Judge made it very clear that the evidence tendered by the appellant through their only witness was contradictory and vague, particularly with regard to the areas of the land in dispute, i.e. the area of the land upon which trespass was committed. Furthermore, the court pointed out the unsatisfactory nature of the evidence in relation to the damaged economic trees. Notwithstanding these findings or observations on the scantiness of evidence in proof of the trespass alleged to have been committed by the respondents generally, and the quantum and type of economic trees destroyed in particular. the trial Judge finally put it beyond doubt that case was decided upon the prevailing criterion and standard of proof required in civil cases. Said he:
“It is my view that civil cases are decided on the preponderance of evidence and the plaintiff must adduce sufficient evidence to justify the verdict of the court in his favour. In civil matter, it is the duty of the court to weigh the whole evidence and give judgment for the party in whose favour there is a preponderance of evidence.
The burden of proof in a civil case is not to establish a case beyond reasonable doubt, it is only to establish that the plaintiffs story is more likely to be truer than the defendant’s. Thus in civil cases, the question is on which side does the weight of evidence tie (sic). See the cases of: Owoade & ors v. Omitola & Ors (1988) 5 SCNJ page 1; Balogun v. Labiran (1988) 6 SCNJ 71 at 86; and Odofin & Ors. v. Magaji & Ors (1978) 1 LRN 12.
With the totality of the plaintiffs evidence before me, it is my view that the plaintiffs herein have not discharged the onus of proof placed on them so as to receive the verdict of the court in their favour.
The claims of the plaintiffs in this case shall therefore fail and is hereby refused. Accordingly this case is dismissed.”
Thus in the final analysis, it cannot be said by any fancied imagination that the decision was based on proof beyond reasonable doubt as envisage under section 137(1) and (2) of the Evidence Act. Reference to that section in the circumstances of the case, in my view, is irrelevant. Be that as it may, I am unable to hold that that section was applied by the learned trial Judge in this case. The first issue is therefore resolved against the appellants.
ISSUE NO. 2
Under this issue several arguments were raised on behalf of the appellants. First, it is the submission of their learned counsel that by the admission in evidence of Exhibit 2, i.e. the record of proceedings in the case adjudged in appellants’ favour, it became superfluous to adduce evidence in proof of the land trespassed upon. Consequently, counsel submitted that the holding by the court that the land trespassed upon was vague was a grave error. And for the same reason the trial court was in error when it held that it was not very clear to it upon which part of the adjudged land the respondents trespassed because the respondents had no right to trespass upon any part of the appellants’ land. Again, it is the submission of learned counsel that it was unnecessary for the appellants to state categorically and specifically the type and number of economic trees destroyed by the respondents for Exhibit 2, being in evidence, the number and type of economic trees destroyed on the trespassed land became ascertainable.
In his response, learned respondents’ counsel submitted that the reception of Exhibit 2 in evidence did not per se establish with any degree of certainty what part of appellants’ land was actually trespassed upon, particularly as the appellants in their pleading limited the scope of the trespass to only a part of their land. So also, the quantum or type of economic trees allegedly destroyed by the respondents was not in evidence and so the trial court as well as this court cannot speculate on these matters.
It is common ground that the record of proceedings of Offa Grade I Area Court in Suit No. IAC/CV.22/86 between Raji Oyadeji & 3 Ors v. Isaac Oluode & Anor was admitted in evidence as Exhibit 2. From the scanty pleading of the appellants and equally scanty evidence in proof of the averred facts, it is manifest that Exhibit 2 was tendered in evidence with the primary object to show that the land in dispute in that case was adjudged in favour of the appellants. In the present case, the appellants, both in their writ of summons as well as their Statement of Claim, in their wisdom, confined the subject of trespass only to a part of the land earlier adjudged to them. That area trespassed upon – the subject-matter of this appeal – was neither specifically identified in Exhibit 2 nor was evidence led identifying the specific part of the said land on which trespass was committed.
No plan or sketch of the land adjudged in favour of the appellants was annexed to Exhibit 2; accordingly Exhibit 2 did not show and could not show the area trespassed upon by the respondent since the decision in Exhibit 2 handed down on 19.10.87. Be it noted that it is not suggested by any stretch of imagination that a plan is mandatory in every land case, whether it is a relief for declaration of title or trespass to land. As a matter of fact, a plan is not a necessity in land cases where the parties know the land in dispute and have also compromised the issue of identify of the disputed land, as is often the case in trials in inferior courts. Again, where in a trial in the superior court in respect of land proceeds from the parties’ pleadings, and no issue is raised on the identity of the land in dispute – whether in cases of declaration to title or trespass – it is superfluous to produce or tender a plan. Indeed, the implication is that the identity of the land is mutually accepted by the parties. See Eriko v. Ai oyewun-(1959) SCNLR 308; (1959) FSC 129, Okpareke v. Egbuonu (1941) 7 WACA 53 and Garba v. Akacha (1966) NMLR 62.
The Judgment of the court in Exhibit 2 did not justify any heavy reliance being placed on it yet appellants’ counsel made much ado about it. While the judgment in Exhibit 2 is not on appeal before this court so that I need hardly say anything with regard to its validity or appropriateness, it is pertinent to observe that the heavy reliance placed on Exhibit 2 by appellants’ counsel in proof of its case in the present case was unjustified because that judgment was brief and of little value to the appellants’ case. After the review and evaluation of evidence, the judgment of the court runs as follows:
“JUDGMENT: The application made by the plaintiffs for claiming Oke Obe land from the curve of the road to Oke Obe after leaving the road to Asapate hamlet including Ago Oloso (orange tree plantation) Aba nla and the surrounding hamlets Oke Obe main hamlet and the surrounding hamlets to the boundary of Asapate which is close to Idiose is only allowed as prayed.”
Reading the above excerpt of Exhibit 2 as closely as I have done, I am clearly of the opinion that whatever that case stands for (apparently, a claim for declaration and injunction) it never decided any claim for trespass because that relief was not a matter agitated before the inferior trial court, Ibollo Area Court Grade 1.
Clearly, it seems to me that the appellants having suo motu limited the scope of the trespass td a portion or part of their land and bearing in mind that the respondents’ defence was one of flat denial of trespass to the appellants’ land, the burden is clearly on them to adduce sufficient evidence in proof of the specific portion of the land upon which the trespass was committed. The trial court cannot make a finding of trespass which will impel it to enter judgment in appellants’ favour unless the alleged trespass has been successfully made out.
As I had earlier stated, the pleading and evidence in this regard were scanty and deplorably unsatisfactory. Therefore, the submission by learned appellants’ counsel that by admitting Exhibit 2 in evidence it became superfluous in law, relying on section 131 of the Evidence Act, to lead evidence in proof of the trespassed area of their land, with respect, cannot be a correct statement of the law. At the risk of being repetitive, the writ of summons, the statement of claim and the evidence led state, in unison, the specific reasons for the admission of Exhibit 2. It must be deemed admitted for that reason only unless there was further pleading and evidence canvassed in respect of other matters which could be gleaned from the said Exhibit. Exhibit 2, as tendered, is a record of proceedings dealing with several matters or issues, though tendered for a purpose. It is not competent for the trial or appellate court to doctor Exhibit 2, in the absence of supporting evidence, and enquire into other reasons for which the document could have been tendered. Such cloistered justice by the court will surely spring incalculable surprise on, and occasion injustice to, the respondents and therefore must be stiffly resisted. This is so for the court has no unimpeded rights to amend or alter the parties pleadings suo motu. Indeed, a court of justice in its unquestionable role as umpire should limit itself to adjudicating upon the case the parties themselves, in their wisdom, have placed before it to the exclusion of all other questions. See Etim Ekpenyong v. Inyang Eftong Nyong (1975) 5 UILR (Pt. 1) l, Akpakpuna & Ors v. Nzeka & Ors (1983) (1983) 2 SCNLR 1.
In the final analysis, therefore, I am satisfied and impelled to the conclusion, that from the state of appellants’ pleading and both documentary and oral evidence led at the trial, the part of the land allegedly trespassed by the respondents remains fluid and unidentifiable. This is another way of saying that the appellants failed to establish the alleged trespass. The learned trial Judge, therefore, in my view, was clearly justified in holding that the evidence adduced in proof of the land trespassed upon was vague.
What I have been saying above about the unsatisfactory nature of the part of the land trespassed upon is equally applicable mutatis mutandis to the alleged destruction of certain economic trees thereon by the respondents. Placing unwarranted reliance on Exhibit 2, the appellants led no evidence in satisfactory proof of the destroyed economic trees on the trespassed land. The result is that even if trespass was established by the appellants, they still had another high hurdle to scale. They had to establish by evidence the quality and type of economic trees destroyed in order to enable the court assess special and general damages claimed by them. Not having specifically particularized and proved special damages nor led sufficient evidence to make the assessment of general damages possible or real, if trespass had been established the appellants would have been entitled only to nominal damages. This is so because the award of general damages is at the discretion of the trial court. Once the discretion is exercised judicially and judiciously, the higher tribunal is obliged to accept it. As I have already stated, there is no basis for making any substantial award by way of general damages.
ISSUE NO. 3
The third and final issue complains that the judgment is perverse. This issue, by and large, is encompassed in, and may be taken as an extension of Issue No. 2. In his usual notoriety for brevity, appellants’ learned counsel submits that by reason of grounds 2 -5 of the grounds of appeal, the judgment of the trial Judge cannot stands being perverse.
Respondents’ learned counsel, in reply, submitted that the findings and the judgment of the learned trial Judge are not perverse but amply supported by evidence. It is firmly settled that an appellate court will interfere with findings of fact where it is shown that the trial court failed to assess or properly evaluate the evidence placed before it or where such findings are not supported by evidence or are unreasonable, having regard to the evidence adduced. See Sanyaolu v. State (1976)5 S.C. 37; Ugwu v. Ogbuzuru (1974) 10 S.C. 191 and Akinwumi v. Idewu (1969) 1 All NLR 319. It is startling that in the complaint of appellants’ learned counsel on perversity no effort has been made to identify any finding of the lower court that is not supported by evidence. In effect, learned counsel is contended to leave it to this court to engage in cloistered justice of separating findings of the lower court which are not supported by evidence, on the one hand, and those which are not supported by evidence, on the other. Surely, this cannot be encouraged in the interest of justice to both parties and the court. In other words, counsel has failed to identify the complaint of perversity he has asserted. Merely asserting a complaint without assiduously supporting it with justifiable legal arguments or identifying the assertion in terms of specificity leaves the complaint utterly specious and unargued; the court; will of necessity, ignore it.
The findings of the trial court with the verdict it reached in its judgment not having been specifically shown to be perverse, issue No. 3 must fail, and accordingly” ground 1 of the grounds of appeal fails.
In the result, this appeal which is completely bereft of merit deserves to fail. The appeal is accordingly dismissed with N500 costs in favour of the respondents.
MOHAMMED, J.C.A.: I shall also dismiss this appeal for the reasons given by my learned brother, Achike J.C.A, in the lead judgment, the draft of which he permitted me to read in advance. It has to be stated strongly, in view of the regularity of such imputation that a complainant who alleges that a judgment or finding made by a lowercourt is perverse must establish to the satisfaction of the appeal court that the judgment is indeed perverse. It is not proper to allege, simpliciter, that a judgment or finding is perverse. It should be borne in mind that such an allegation would infer that the Judge who made the decision knew, or had been told before, or had every reason to know that his finding was wrong or unreasonable. Such an allegation. therefore, must be supported by concrete reasoning, based on the evidence and law. The learned counsel for the appellant has failed to support his allegation with even a semblance of truth.
Accordingly this appeal is dismissed with costs a~ assessed in the lead judgment.
OKUNOLA, J.C.A.: I have had the advantage of reading in draft the judgment read by my learned brother Achike, J.C.A. 1 agree with the reasonings and conclusions therein. I too will therefore dismiss the appeal with N500 costs to the respondents.