Court of Appeal – July, 2015
Legalpedia Electronic Citation LER[2015]CA/L/419/2014

 Areas of Law

ACTION, APPEAL, CIVIL PROCEDURE, COURT, PRACTICE AND PROCEDURE

Summary of Facts

The Appellant/Applicant brought an application before the Court praying amongst others for; an order of the Court extending the time within which the Appellant/Applicant may seek leave to appeal on additional grounds of mixed law and facts against the decision of High Court of Lagos State, an order of Court granting leave to the Appellant/Applicant leave to appeal against the ruling on grounds of mixed law and facts and an order of court extending the time within which the Appellant/Applicant may file additional grounds of appeal. The Respondent on the other hand raised a preliminary objection on the grounds that the notice of appeal is defective and therefore incompetent since the grounds of appeal are on mixed law and facts and leave was not obtained.

Held

Application Allowed

Issue for Determination

None

Rationes

PRELIMINARY OBJECTION – ONCE A PRELIMINARY OBJECTION IS FILED IT MUST BE DISPENSED WITH FIRST

“It is trite that once a preliminary objection is filed, it must be dispensed with first as to know the destiny or fortune of the substantive appeal. See Isiaka & Anor V. Opobiyi [2012] LPELR 8540 (CA); Odedo V. INEC [2008] 17 NWLR (PT 1117) 554; SPDCN Ltd V. Amadi [2011] 14 NWLR (PT 1266) 157; Adelekan V. Ecu-Line NV. [2006] 12 NWLR (PT 993) 33; Okolo V. UBN Ltd. [20004] 3 NWLR (PT 859) 87.” PER A. O. O. ADEJUMO, J.C.A

APPEAL WITH LEAVE-APPEAL FROM DECISIONS WHICH ARE NOT ON GROUNDS OF LAW MUST BE WITH THE LEAVE OF COURT

“Any decision of the lower court which is not a ground of law whether interlocutory or final appeal must be with the leave of court.” PER A. O. O. ADEJUMO, J.C.A

RAISING A PRELIMINARY OBJECTION – PROPER TIME FOR RAISING A PRELIMINARY OBJECTION

“It is also trite that the proper time to raise such an objection is not at the stage of amending the notice of appeal but at the appeal stage upon a motion on notice for complaint on the grounds and not by way of preliminary objection.” PER A. O. O. ADEJUMO, J.C.A

GROUNDS OF APPEAL – CATEGORIES OF GROUNDS OF APPEAL

“If the ground of appeal reveals a misunderstanding by the court below of the law or a misapplication of law to facts admitted or proved, it is a ground of law. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and facts.” PER A. O. O. ADEJUMO, J.C.A

GROUND OF APPEAL – A SINGLE GROUND OF APPEAL ON GROUNDS OF LAW CAN SUSTAIN AN APPEAL

“It is trite that if there is one ground of appeal on ground of law in a notice of appeal, it can sustain the appeal. See Nwaolisah V. Nwabufoh [2011] LPELR-2115 (SC); Dairo V. Union Bank Of Nigeria Plc & Ors. [2007] 16 NWLR (PT 1059) 99; Mohammed V. Olawunmi [1990] 2 NWLR (PT 1330) 458; Odunukwe V. Ofomata (SUPRA); South Atlantic Pet.Ltd. V. Minister Petroleum Resources [2013] LPELR-21892 (SC).”PER A. O. O. ADEJUMO, J.C.A

LEAVE OF COURT – LEAVE OF COURT MUST BE OBTAINED BEFORE A NOTICE OF APPEAL CONTAINING GROUNDS OF MIXED LAW AND FACTS ARE FILED.

“It is a principle of law that leave must be had and obtained before notice of appeal containing grounds of mixed law and facts are filed.” PER A. O. O. ADEJUMO, J.C.A

AMENDMENT OF GROUNDS OF APPEAL – GROUNDS OF APPEAL CAN BE AMENDED ONCE THERE IS A VALID APPEAL

“It is trite that once there is a valid appeal, the grounds of appeal can be amended. See also Integrated Data Services V. Adewunmi [2006] ALL FWLR (PT 292) 143 at 154; Tahir & Anor V. Bank of the North [2007] ALL FWLR (PT 288) 1072 at 1090-1091.” PER A. O. O. ADEJUMO, J.C.A

Statutes Referred To:

Constitution of the Federal Republic of Nigeria 1999
Court of Appeal Act
Court of Appeal Rules 2011

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