CORAM

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Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

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PARTIES

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BRIG. GEN. DONATUS IDADA IKPONMWEN (RTD) (Trading Under The Name And Style Of D. O. I. Ikponmwen & Co.)

APPELLANTS 

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1. CAPT. JOHN AIREN ASEMOTA (RTD)

2. BARR. PAUL ERA OKOCHUE

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, COURT, JURISDICTION, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against the decision of the Court of Appeal, Lagos Division, which affirmed the decision of the High Court of Lagos State. This appeal was filed over a period of 2years after the decision appealed against and all grounds being grounds of mixed law and facts requiring the leave of court before same could be filed was not sought nor obtained.

 

 

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HELD

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Parties shall bear their respective costs of prosecuting the appeal.
Struck out.

 

 

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ISSUES

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The Appellant’s Brief was filed on 9th February, 2016, deemed on 30th November, 2018, wherein the following issues are set out for determination by the Court:-

“3.1 ISSUE ONE: Where the lower Court was right to hold that the omission of the trial Court to pronounce on Issue One in the final written address of the Appellant did not occasion a miscarriage of justice. (Ground One).

3.2 ISSUE TWO: Where the lower Court was right to hold that the Respondents’ claim was not based on partnership simpliciter. (Grounds Two and Seven)

3.3 ISSUE THREE: Whether the lower Court was right to uphold the reliefs granted by the trial Court. (Grounds Three, Four and Six).

3.4 ISSUE FOUR: Whether the lower Court was right when it affirmed the finding of the trial Court to the effect that the Appellant and the Respondents did not reach any agreement on the amount to be paid, as professional fees, by the Appellant to the Respondents. (Ground Five).”

 

 

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RATIONES DECIDENDI

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APPEAL, COURT, PRACTICE AND PROCEDURE GROUND OF APPEAL – WHETHER THE CLASSIFICATION GIVEN BY A PARTY TO A GROUND OR GROUNDS OF APPEAL REFRAINS THE COURT FROM INQUIRING WHETHER THE GROUND/S IS/ARE ACTUALLY OF LAW ALONE OR OF MIXED LAW AND FACTS OR EVEN FACTS ALONE

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 “Perhaps, as foundation, I should restate the law, now firmly established in the appellate Courts, that for the purpose of the exercise of the right of appeal to this Court, it is not the mere label, description, designation or naming of the ground of appeal as one of or error in law that makes the ground in reality, one of law alone which entitles a party or appellant to appeal as of right. The classification, cognomen or label given by a party to a ground or grounds of appeal on the Notice of Appeal does not and will not stop the Court from looking into whether the ground/s is/are actually of law alone or of mixed law and facts or even facts alone. See Obijuru v. Ozims (1985) 2 NWLR (pt. 6) 167, Ejiwunmi v. Costain West Africa, Plc (1998) 12 NWLR 149, Ajuwa v. SPDC (2011) 12, SC (pt. 11) 118, Opuiyo v. Omoniwari (2007) 6 SC, (pt. 1) 35. PER M. L. GARBA, J.S.C.

 

 

APPEAL, COURT, PRACTICE AND PROCEDURE

GROUND OF APPEAL – DUTY OF COURT IN DETERMINING THE REAL NATURE OF A GROUND OF APPEAL

“The law is also settled, that in order to properly determine the real nature of a ground of appeal, the Court will look at and consider the ground along with the specific particulars set out in support thereof to see what the essence or grouse of the complaint therein is about. See Garuba v. Omokhodion (2011) 6 – 7 SC (pt. V) 89, Anoghalu v. Oraelosi (1999) 3 NWLR (pt. 634) 297, (1999) 10 -12 SC, 1, NNPC v. Famfa Oil Ltd. (2012) LPELR – 7812 (SC) (consolidated), Ogbechie v. Onochie (1986) 1 NSCC, 443, Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718, Odukwe v. Achebe (2008) 1 NWLR (pt. 1067) 40 at 53”. PER M. L. GARBA, J.S.C.

APPEAL, COURT, PRACTICE AND PROCEDURE

GROUND OF APPEAL – GUIDELINES IN DETERMINING THE NATURE OF AN APPEAL

“Even though the line of distinction between a ground of pure law alone on the one hand, and a ground of mixed law and facts, on the other hand, is, judicially, admitted to be very thin; see Ogbechie v. Onochie (supra), Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) 531, MDPDT v. Okonkwo (2001) 3 KLR (pt. 117) 739, some guidelines have evolved over the years that are used in the determination of the nature of a ground of appeal. In Akinyemi v. Odu’a Inv. Co. Ltd. (2012) LPELR-8270 (SC) I. T. Muhammad, JSC (now CJN) enumerated the guidelines as follows:-

1. Where a ground complains of a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved or admitted, it is a ground of law;

2. Where a ground questions the evaluation or facts before the application of the law, it is a ground of mixed law and facts;

3. A ground which raises a question of pure fact is certainly a ground of fact;

4. Where the lower Court founds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur the ground is that of law;

5. Where admissible evidence has been led, the assessment of the evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is of fact;

6. Where the lower Court approached the Constitution of a legal term or part in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law;

7. Where the lower Court or tribunal applying the law to fact in a process which requires the skill of a trained lawyer, this is a question of law;

8. Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of the law, this is a ground of law.

9. Where the conclusion of the lower Court is one possible resolution but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law;

10. Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of Appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection, is a ground of law, not of fact;

11. When Court of Appeal finds such application to be wrong and decides to make it own findings, such findings made by the Court or Appeal are issues of facts and not of law;

12. Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground alleging such misdirection by the lower Court of appeal is a ground of law not of facts;

13. A ground which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence or witnesses, it is purely a ground of fact.

See also Abidoye v. Alawode (2001) 3 SDC, 1, Oforkire v. Maduike (2003) 1 SC, 1, Board of Customs & Excise v. Barau (1982) 10 SC, 1 Kwara State Water Corp. v. A.I.C. Nig. Ltd. (2009) All FWLR (pt. 485) 1738, B.A.S.F. Nig. Ltd. v. Enith Enl. Ltd. (2010) All FWLR (pt. 518) 840. PER M. L. GARBA, J.S.C.

APPEAL, COURT, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

RIGHT OF APPEAL – BASIS ON WHICH AN APPEAL CAN LIE AS OF RIGHT AND WITH LEAVE FROM DECISIONS OF THE COURT OF APPEAL TO THE SUPREME COURT

“In consequence of the above nature of all the grounds contained on the Notice of Appeal, Section 233 (3) of the Constitution (as amended) comes into play. Once more, it provides that:-

“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.”

Subsection (2) (a) to which the provisions are subjected, provides that an appeal shall lie from the decisions of the lower Court to this Court, as of right, where the ground of appeal involves questions of law alone, in decisions in any civil or criminal proceedings before that Court.

From the nature of the grounds on the Notice of Appeal as demonstrated above, (2) (a) do not apply to make right of appeal one as of right, as provided, since they are shown not to involve questions of law alone. PER M. L. GARBA, J.S.C.

APPEAL

APPEAL AS OF RIGHT – WHEN IS AN APPEAL AS OF RIGHT?

“An appeal is said to be as of right when and where a party dissatisfied with the decision of Court, in civil or criminal proceedings, is vested with the right, power and freedom to initiate or commence the appeal by giving the requisite notice in the required form and within the prescribed period of time, without any hindrance or let. The right to appeal is unfettered so long as it was exercised in accordance with any statutory provisions enacted for the purpose and so prior sanction or permission of Court is not needed for the exercise of the right. See Ojukwu v. Onyeador (1991) 7 NWLR (pt. 203) 286, Iwueke v. Imo Broadcasting Corp. (2005) 10 SC, 19 at 33, Akwaruo v. Anyanwu (2006) All FWLR (pt. 302) 89, UBN, Plc v. Sogunro (2006) All FWLR (pt. 337) 402 at 410-411, Anoghalu v. Oraelosi (1999) 10 SCNJ, 1. PER M. L. GARBA, J.S.C.

APPEAL, COURT, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

APPEAL WITH THE LEAVE OF COURT – CIRCUMSTANCES THAT WILL WARRANT AN APPEAL FROM THE DECISIONS OF THE COURT OF APPEAL TO THE SUPREME COURT WITH THE LEAVE OF COURT

As seen above, the provisions of Subsection (3) says that an appeal shall lie from the decisions of the lower Court to this Court with the leave of either the lower Court or this Court where the ground/grounds involve/s question/s other than of law alone provided for in Subsection (2) (a). An appeal in the circumstances of Subsection (3), is made subject to the leave of either the lower Court or this Court for it to be validly initiated or commenced by the giving/filing of the requisite notice by a party desirous of appealing to the Court. PER M. L. GARBA, J.S.C.

APPEAL, COURT, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

RIGHT OF APPEAL – CONDITION PRECEDENT FOR THE EXERCISE OF A RIGHT OF APPEAL REQUIRING THE LEAVE OF COURT

“In other words, unlike an appeal as of right under Subsection (2) (a), the exercise of the right of appeal under the provisions of Subsection (3) is subjected, restricted, and subordinated to the requirement of prior permission or sanction of Court, by way of leave, before a valid Notice of Appeal can be given or filed in order to properly invoke and vest the Court with the constitutional jurisdiction to entertain and adjudicate over the appeal. Clearly, the prior leave of Court in such a situation is made a condition precedent to be fulfilled or satisfied in order for an appeal to be valid and competent for the Court to be seized of the jurisdiction to entertain and adjudicate over it. Where such necessary leave of Court was not obtained prior to the filing of a Notice of Appeal, the appeal will be invalid and incompetent for failure to satisfy or fulfil the condition precedent for the exercise of the right of appeal, thereby depriving the Court of the requisite jurisdiction over it. See Kwasau v. Ma’aji (2006) All FWLR (pt. 295) 767, Tiza v. Begha (2005) 5 SC (pt. 11) 1 at 8, Auto Import-Export v. Adebayo (2003) FWLR (pt. 140) 1686, O.T.U. v. ACB, Plc (2008) MJSC, 191, Alamieyeseigha v. C.J.N. (2005) 1 NWLR (pt. 906) 60, SPDCN Ltd. v. Katad Nig. Ltd. (2006) 1 NWLR (pt. 960) 198, Samuel v. Etubi (2011) LPELR- 4200 (CA).

In the case of Yaro v. Arewa Constr. Ltd. (2007) 7 SC (pt. 11) 149, (2007) 17 NWLR (pt. 1063) 333, Chukwuma-Eneh, JSC, in the leading judgment, dealing with the provisions of Subsection (3) of Section 233 of the Constitution, had stated the law that:-

“Appeal to this Court by leave, which otherwise means permission, relate to matters of facts or mixed law and fact for which leave of the Court below or this Court must be obtained as a matter of condition precedent. See Nalsa & Team Associates v. N.N.P.C. (1991) 10 – 12 SC 83; (1991) 8 NWLR (pt. 212) 652 SC. This Court has the responsibility to ensure that the grounds of appeal in respect of the matter before it fall within its constitutional competence. In this regard, therefore, a ground of appeal is not let off the hook simply because it is tagged an error in law. This Court must be satisfied it is so. See Ojemen & 4 Ors. v. Momodu II (1983) 3 SC 173. The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground.”

– PER M. L. GARBA, J.S.C.

APPEAL, COURT, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – WHETHER PARTIES MUST BE CALLED TO ADDRESS THE COURT WHERE THE ISSUE OF AN INCOMPETENT NOTICE IS SUO MOTU RAISED BY THE COURT

“Since a valid Notice of Appeal is a sine qua non to the assumption of jurisdiction by the Court over an appeal; being the originating process used for the purpose of the proper invocation of the requisite judicial power and authority over an appeal, and without which the Court would lack the vires to entertain and adjudicate over the appeal, it is an issue that can be raised at this stage. In NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (pt. 1676) 67 at 92 it was settled by this Court, per M.D. Muhammad, JSC, that:-

“Now, it is beyond contention that the requirement of giving parties the opportunity to address a Court on an issue raised by the Court suo motu is a general rule which, like all others, has exceptions. Decisions of this Court abound specifying these exceptions. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (pt. 1213) 106, Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 and Bola Ominiyi v. Jacob Adegboyega Alabi (2015) LPELR-24399 (SC), (2015) 5 NWLR (pt. 1456) 572. It has been held by this Court, in these decisions, that the principle that whenever a Court raises an issue not within the contemplation of the parties and suo motu, parties should be given a hearing before a decision on the issue so raised, applies mainly to issues of fact and that, in special circumstances, an issue of law or jurisdiction may be raised suo motu and without hearing the parties, decision upon the issue so raised.”

See in addition, Ogar v. Igbe (2019) 9 NWLR (pt. 1678) 534 at 553 (SC), Alims Ltd. v. UBA, Plc (2013) 1 MJSC (pt. 11) 156 at 170, Omokuwajo v. FRN (2013) 9 NWLR (pt. 1359) 300 at 332 (SC), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR, 296, (1985) 6 NCLR, 1. PER M. L. GARBA, J.S.C.

COURT, APPEAL, JURISDICTION, PRACTICE AND PROCEDURE

LEAVE OF COURT – EFFECT OF FAILURE TO SEEK AND OBTAIN THE LEAVE OF COURT AS A CONDITION PRECEDENT TO THE VALIDITY OF A GROUND OF APPEAL RAISING OR INVOLVING QUESTION/S OF MIXED LAW AND FACTS OR FACTS ALONE

“As stated earlier, the issue of prior leave of Court being a condition precedent to the validity of a ground of appeal raising or involving question/s of mixed law and facts or facts alone, goes to and affects the jurisdiction of the Court to adjudicate over an appeal. Where, as shown before now, an appeal is predicated on grounds of mixed law and facts which require the leave of Court as a condition precedent for their validity and competence and the requisite leave was not obtained, the Notice of Appeal containing such grounds becomes invalid in law and incompetent, thereby depriving the Court of the jurisdiction to entertain and adjudicate on the appeal. PER M. L. GARBA, J.S.C.

APPEAL, COURT, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – WHETHER A COURT IS EMPOWERED TO SUO MOTU RAISE THE ISSUE OF AN INCOMPETENT NOTICE OF APPEAL

 

I have brought up this issue suo motu as the Court has the vires to do so with regard to an incompetent notice of appeal. See Okorie v. Udom (1966) 5 FSC 162; NTA & Ors v. Anigbo & Ors (1972) 5 SC 156; Amadi v. Okolie (1977) 7 SC 57 at 63. PER M. U. PETER-ODILI, J.S.C

APPEAL, PRACTICE AND PROCEDURE

NOTICE OF APPEAL –STATUS OF AN APPEAL FILED WITH AN INCOMPETENT NOTICE OF APPEAL

“Where a Notice of Appeal is incompetent as the one under discourse is, the appeal ipso facto is incompetent. I rely on Olowokere v. African Newspapers Ltd (1993) 5 NWLR (pt. 295) 583 at 586. This Notice of Appeal filed outside the prescribed period by the Constitution and so the appeal is statute-barred. See Osun State Government v. Dalami Nig. Ltd (2007) All F WLR (pt. 365) 438; Jallco Ltd v. Owoniboys Tech Services Ltd (1995) 4 NWLR (pt. 391) 534. PER M. U. PETER-ODILI, J.S.C

APPEAL, PRACTICE AND PROCEDURE

LEAVE TO APPEAL – EFFECT OF FAILURE TO SEEK AND OBTAIN LEAVE TO APPEAL WHERE SAME IS A CONDITION PRECEDENT

“It needs to be reiterated that when the seeking and obtaining leave to appeal constitute a condition precedent for the exercise of the right to appeal, failure to seek and obtain the mandatory leave renders the appeal incompetent. The purported appeal being a nullity or an illegality is tantamount to there being no appeal. See Olowosoke v. Oke (1972) 11 SC 1; NALSA & TEAM Associates v. NNPC (1991) 8 NWLR (pt. 212) 652 at 666. PER M. U. PETER-ODILI, J.S.C

APPEAL, COURT, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – WHETHER COURT CAN DEEM A NOTICE OF APPEAL PROPERLY FILED SUBSEQUENTLY

“To further buttress the point is the fact that a Notice of Appeal being an originating process is not one of those processes the Court can deem properly filed subsequently hence the process before Court titled ‘Notice of Appeal’ is a worthless document and void ab initio. See Cooperative Bank of Eastern Nigeria Ltd v. Emeka Ogwuru (1971) 1 NWLR (pt. 168) 458 at 567 (CA). PER M. U. PETER-ODILI, J.S.C

 

 

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CASES CITED

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Ogar v. Igbe (2019) 9 NWLR (pt. 1678) 534 at 553 (SC),

Alims Ltd. v. UBA, Plc (2013) 1 MJSC (pt. 11) 156 at 170,

Omokuwajo v. FRN (2013) 9 NWLR (pt. 1359) 300 at 332 (SC),

Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR, 296, (1985) 6 NCLR, 1.

 

 

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

 

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