CORAM

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PARTIES

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AINA OSANYANBI & ORS APPELLANTS

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OKEOWO LASISI & ORS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiffs/Respondents own a piece of land at Magbon, Orile-Agege in Lagos State, whilst the Defendants/Appellants’ were their tenants who subsequently challenged the title of the Plaintiffs/Respondents. The Plaintiffs/Respondents sued the Defendants/Appellants’ before Lagos High Court, claiming forfeiture, possession and arrears of rent. The Defendants/Appellants’ counter-claimed against the Plaintiffs’ for a declaration that they are entitled to the Statutory Rights of Occupancy in respect of the land in dispute; a perpetual Injunction restraining the Plaintiffs’ and their agents from committing any acts of trespass or further act of trespass on the land in dispute or any part of the Osanyanbi family land; an Order dismissing the case of the Plaintiffs’ in its entirety with substantial cost to be awarded in favour of the Defendants’ counter-claimants’. The trial court entered judgment for the Plaintiffs/Respondents and dismissed the counter claim of the Defendants/Appellants. Dissatisfied with the decision of the trial court, the Appellants filed an appeal to the Court of Appeal and obtained a stay of execution of the Judgment, which was granted. The Appellants never pursued the appeal and eight years after the grant of stay of execution, the Respondents approached the Court of Appeal for an order dismissing the appeal for want of diligent prosecution and the appeal was consequently dismissed. The Appellants have filed an appeal before this court against the decision of the lower court. The Respondents filed a preliminary objection on grounds that the Appellants did not seek and obtain leave in respect of their grounds of appeal and that the Appellants did not notify the Respondents’ or their Counsel while compiling the record of Appeal to the Supreme Court thereby deducting some vital documents substantiating the Respondents’ case.

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HELD

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Appeal struck out, Preliminary Objection Sustained

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ISSUES

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Whether the Appellants who were not willing, ready and diligent to prosecute their appeal were denied fair hearing by the learned trial justices of the Court of Appeal who heard the Respondents/Appellants’ Motion on Notice dated 15 July, 2005 for an order dismissing the Appellants/Respondents’ Appeal for want of due and/or diligent prosecution

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – NATURE OF A PRELIMINARY OBJECTION

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“It is long settled that a Preliminary objection must be determined before the appeal is considered. The reason is simple. The purpose of a Preliminary objection is to convince the Court that the appeal is fundamentally defective. If the Preliminary objection succeeds the appeal would no longer be heard. It would be struck out. I must further observe that a Preliminary objection is only filed when its success would bring the hearing of the appeal to an end. If the respondents complain about the grounds of appeal that are bad, but there are some grounds that can sustain the appeal, a motion on Notice and not a Preliminary objection should be filed against the defective grounds of appeal. In this case the complaint is against all the grounds of appeal. A Preliminary objection is thus appropriate. See Isah v INEC (2016) 18 NWLR (Pt.1544) p.175. B.O.I. Ltd v Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (Pt.1615) p.220.”

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LEAVE OF COURT – INSTANCE WHEN THE LEAVE OF COURT IS REQUIRED TO FILE AN APPEAL- SECTION 233(3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

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“Section 233(3) of the Constitution states that:
(3). Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.
Leave means permission. Where the Grounds of Appeal involve questions of law alone no leave is required, and the Supreme Court would have jurisdiction to hear such an appeal, but where the Grounds of Appeal are based on facts, or mixed law and facts the Supreme Court would have jurisdiction to hear such an appeal if and only if leave was obtained. If leave is not obtained the appeal is incompetent and liable to be struck out. See Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) p. 718 Obatoyinbo v Oshatoba (1996) 5 NWLR (Pt. 450) p. 531. Nwaolisah v Nwabufoh (2011) LPELR. 2115..”

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GROUNDS OF APPEAL– CLASSIFICATION OF GROUNDS OF APPEAL OF LAW, MIXED LAW AND FACTS OR/AND FACTS

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“In NNPC v Famfa Oil Ltd (2012) All FWLR (Pt.633-635) P. 204, I said that:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labelling a ground of appeal error of law, or misdirection may not necessarily be so. The application is irrelevant in determining whether a ground of appeal is of law or mixed law and fact The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.”
In Ogbechie & Ors v Onochie & Ors 1986 NWLR (Pt.23) p. 484. Eso JSC adopted the explanation given by the authors of the Law Quarterly Review, Vol. 100 of October 1984 thereby providing an illuminating guide on this issue of classification of Grounds of Appeal of law, mixed law and facts or/and facts. The authors explained as follows:
1. If the tribunal purports to find that particular events occurred, although it is seised of no admissible evidence that the events did in-fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal; in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.
3.If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal, though correctly treating a statutory word or phrase as a legal term of act, errs in elucidation of the word or phrase, it is a question of law.
5. If the tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error of law.
6.If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunal’s conclusion may be one of the possible resolutions; Yet it may be a conclusion which the superior Court (had it been seized of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. “The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law will not intervene.”
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GROUND OF APPEAL – DETERMINATION OF GROUNDS ALLEGING ERROR IN LAW

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“In Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) P. 718, This Court further explained that:
(a) It is an error in law if the adjudicating tribunal took into account, some wrong criteria in reaching its conclusion.
(b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law.
(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law.
(d) Where a tribunal states the law in point wrongly. It commits an error in law.
(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.
(f) If a judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law.”

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LEAVE OF COURT – WHETHER LEAVE OF COURT MUST BE OBTAINED WHERE THE GROUNDS OF APPEAL ARE OF MIXED LAW AND FACT

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“Section 233 (3) of the Constitution is mandatory. That is to say where the grounds of appeal are of mixed law and fact, leave must be obtained while its discretionary under Section 233 (4) of the Constitution. This Court can exercise its discretion and dispense with leave where the grounds of appeal are mixed law and fact if satisfied that it is in the interest of justice. This Court and indeed all Courts are Courts of justice and Equity. They should ensure at all times that substantial justice is done between the parties. The role of Courts in this regard have been stated and repeated in a plethoric of cases. See Bello v A.G. Oyo State (1986) 12 SC p.1 Ogumbi v Kosoko (1991) 8 NWLR (Pt.210) p.511 Panache Communications Ltd v Aikhomu (1994) 2 NWLR (Pt.327) p. 425.Akilu v Fawehinmi (1989) 3 NWLR (Pt. 112) p. 643Nishizawa v Jethwani (1984) 12SC p. 235.”

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LEAVE OF COURT – INSTANCES WHEN THE REQUIREMENT OF OBTAINING THE LEAVE OF COURT IN FILING AN APPEAL IS MANDATORY- SECTION 233(3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

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“Section 233 (3) of the 1999 Constitution, as amended provides:
Subject to the provisions of Subsection (2) of this section, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”.
Section 233 (2) of the Constitution provides for appeals which are as of right and on issues of law alone. Any appeal which does not fall within the provisions of Section 233 (2), requires the leave of the Court of Appeal or of this Court to be valid. The requirement for leave is mandatory and a condition precedent to the exercise of the Court’s discretion to hear the appeal. Where the grounds of appeal are on facts or mixed law and facts, leave must be obtained. Failure to seek and obtain leave renders the appeal incompetent and liable to be stuck out. See: Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SC (Pt. iv); Idika Vs Erisi (1988) 5 SC (Reprint) 323; Nwaolisa Vs Nwabufoh (2011) 14 NWLR (Pt. 1268) 600. It is important to note that the mere description of a ground of appeal as being an error of law does not make it so. The Court will examine the grounds along with their particulars to determine the exact nature of the complaint See: Ojemen & Ors. Vs Momodu & Ors. (1983) LPELR 2371 (SC) @ 27-28 D-B; U.B.N. Plc Vs Sogunro (2006) 16 NWLR (Pt.1006) 504. If there is a ground of appeal which is of law alone, it is sufficient to sustain the appeal notwithstanding the fact that there are other incompetent grounds of fact or of mixed law and fact for which leave ought to have been obtained.”

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GROUNDS OF APPEAL – DETERMINATION OF A GROUND OF LAW FROM A GROUND OF MIXED LAW AND FACT

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“In Utoo v APC and Ors (SC. 93/2017 delivered on April 20, 2018), this Court per Nweze, JSC] explained that: the difficulty in typologising grounds of appeal into grounds of law simpliciter and grounds of mixed law and facts has long been acknowledged in Anglo-Nigerian procedural jurisprudence. In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edinburgh etc Tramways (1919) SC (H.L) 35; also, Currie v Inland Revenue Commission (1921) 2 KB 536; Cooper v Stubbs (1925) 2 KB 277; Benmax v Austin Motors Co Ltd (1945) All ER 326; Edwards (Inspector of Taxes)v Bairstows and Anor (1955) 3 All ER 48.This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review Vol. 100 (October 1984). Although this Court confessed its difficulty in distinguishing between a ground of law from a ground of mixed law and fact, Ogbechie v Onochie [1986] 1 NWLR (pt. 70) 370 and, approvingly, adopted the above academic treatise of C. T. Emery and Professor B. Smythe in Ogbechie v Onochie at 490 – 493, per Eso, JSC, the problem still persisted and triggered off a frequency of appeals on this point, Nwadike and Ors v Ibekwe and Ors (1987) LPELR – 2087 (SC) 42- 43. Other examples include: UBA Ltd v Stahlbau Gmbh & Co [1989] 3 NWLR (pt 110) 374, 391-392; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531, 548; MDPDT v Okonkwo [2001] 3 KLR (pt.117) 739 etc. Happily however, this difficulty, notwithstanding, this Court has ingeniously fashioned out formulae for navigating through the nuances of the characterisation of grounds of appeal. The first formula aims at facilitating the ascertainment of what constitutes a ground of appeal. It comes to this: a Court has a duty to do a thorough examination of such grounds which the appellant filed. The main purpose of the examination will be to find out whether – if from the said grounds, it is evident that the lower Court misunderstood the law or whether the said Court misapplied the law to the facts which are already proved or admitted. In any of these two instances, the ground would qualify as a ground of law. On the other hand, if the ground complains of the manner in which the lower Court evaluated the facts before applying the law, the ground is of mixed law and fact. The determination of grounds of fact is much easier. Simply put, these formulae simply mean that it is the essence of the ground; the main grouse: that is, the reality of the complaint embedded in that name, that determines what any particular ground involves, Abidoye v Alawode [2001] 3 KLR (pt. 118) 917, 919; NEPA v Eze [2001] 3 NWLR (pt. 709) 606; Ezeobi v Abang [2000] 9 NWLR (pt. 672) 230; Ojukwu v Kaine [2000] 15 NWLR (pt. 691) 516. In effect, it is neither its cognomen nor its designation as ‘Error of Law’ that determines the essence of a ground of appeal, Abidoye v Alawode (supra) 927; UBA Ltdv Stahlbau Gmbh and Co [1989] (supra) 374, 377; Ojemen v Momodu [1983] 3 SC 173. it is true that this Court does not possess the jurisdiction to hear an appeal on grounds of mixed law and facts, unless leave has been sought and obtained, Uchendu v Ogboni[1999] 5 NWLR (pt 603) 337; Irhabor v Ogaiamien [1999] 8 NWLR, (Pt 616) 517; Ukpong and Anor v Commissioner for Finance and Economic Development [2006] 19 NWLR (Pt 1013) 187.”

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LEAVE OF COURT – EFFECT OF A FAILURE TO OBTAIN LEAVE OF COURT WHERE A GROUND OF APPEAL RAISES QUESTIONS OF FACT OR MIXED LAW AND FACT

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“It is settled that the failure to obtain leave of the Court below or this Court where a ground of appeal raises questions of fact or mixed law and fact, renders the appeal grossly incompetent see Akpasubi V. Umweni (1982) 11 SC 113, wherein Eso, JSC, observed as follows -The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where – – question of fact has been brought before this Court without leave, the Court has no jurisdiction”.

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GROUND OF APPEAL – PRINCIPLES GOVERNING THE CLASSIFICATION OF A GROUND OF APPEAL AS ONE OF LAW OR OF FACT OR OF MIXED LAW AND FACT

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“Certainly, it is not easy to decipher a question of law from a question of fact. But this Court has laid down guidelines in numerous cases, which set out the parameters, for navigating a way to finding answers see Board of Custom & Excise V. Barau (1982) NSCC (Vol. 13) 358, and Dairo V. Union Bank (supra), (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide:
i. Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground of appeal is a ground of mixed law and fact. See Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555.
ii. A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact, is a ground of mixed law and fact – Maigoro V. Garba (supra).
iii. Where the evaluation of facts established by the trial Court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and fact. See Maigoro V. Garba (supra).
iv. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter – Ogbechie V. Onochie.
v. Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter. See Nwadike & Ors. V. Ibekwe & Ors. (1987) 12 SC (Pt. 1) 164.
vi. It is a ground of law if the adjudicating Tribunal or Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See O’ Kelly v. Trust house Forte P.I.C. (1983) 2 All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra) pp. 491-492.
vii. Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn from therefrom are grounds of law. See Ogbechie V. Onochie(supra).
viii. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See Nwadike & Ors. V. Ibekwe & Ors. (supra).
ix. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See Ogbechie V. Onochie (supra) where ESO, JSC, citing with approval an article by C.T Emery in Vol. 100 LQR held: If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is question of law.”

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GROUNDS OF APPEAL – GUIDING PRINCIPLES IN DETERMINING WHETHER A COMPLAINT IN AN APPEAL RAISES A QUESTION OF LAW OR MIXED LAW AND FACTS

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“There is no doubt that the question of determining whether a complaint in an appeal raises question of law alone or mixed law and facts is a difficult one. This Court in plethora of decided authorities laid down guidelines or guiding principles on how to determine which ground of appeal is of law alone or which one is of mixed law and facts. For instance, the test put forward by Esho JSC (as he then was of blessed memory) in the case of Ogbechie V. Onochie (1986) 2 NWLR (PT.23) 484 had given an insight on how to determine it, when the learned jurist stated thus:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or misapplication of the law to the facts already proved or admitted, in which case, it would be question of law or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine.
See also Per SANUSI, J.S.C in Allanah & Ors V. Kpolokwu & Ors (2016) LPELR-40724(SC).”

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PRELIMINARY OBJECTION- PURPOSE OF A PRELIMINARY OBJECTION

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“The purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a Respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Per OGUNBIYI, J.S.C in Petgas Resources Ltd V. Mbanefo (2017) LPELR-42760(SC).”

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CASES CITED

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None

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria1999 as amended|

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