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.
Application Allowed
None
“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
“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
“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
“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
“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
“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
“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
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Court of Appeal Rules 2011
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