CORAM
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE SUPREME COURT
MICHAEL EKUNDAYO OGUNDARE. JUSTICE, SUPREME COURT
PARTIES
CHIEF N. P. UGBOAJA APPELLANTS
SODOLAMU AKITOYE-SOWEMIMOMOTOLA SOWEMIMOEFUNIKE ANIMASHAWUNJAIYEOLA SOWEMIMO [For themselves and on behalf of all the beneficiaries of the Estate of Chief Sobo Sowemimo (Deceased) Substituted by order of court made the 12th day of May, 2008
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents (though substituted) sued the Appellant for title to land. The Appellant sought for adjournment when it came up for defence which was refused and the trial judge closed the Appellant’s defence and entered judgment in favour of the Respondent after address. An unsuccessful appeal to the Appeal Court led to this present appeal.
HELD
Appeal struck out.
ISSUES
1. Whether the appellant appealed, on a final judgment or the appeal, is an interlocutory appeal. To determine the effect of such judgment, on the appellant. 2. Whether there is a misdirection of facts, and law, at the lower court leading to the lower court’s judgment, giving to the appellant, what the appellant did NOT ask for, from the lower court, and to pronounce, on the validity of the judgment of the lower court.
RATIONES DECIDENDI
ADMISSION
‘Where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent.’ Per Onnoghen JSC
APPEAL: MEANING OF QUESTION OF FACT
A “question of fact” also does not have one meaning as it may mean:-
(i) A question which is not determined by a rule of law;
(ii) Any question except the question as to what the law is; and any question that is to be answered by the jury rather than the Judge, is a question of fact. Per Onnoghen JSC
HOW TO DETERMINE THE NATURE OF A GROUND OF APPEAL
‘In determining whether a ground of appeal is of law or fact or mixed law and fact, the court is to be guided by the following principles:-
(a) 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 is of mixed law and fact;
(b) a ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court;
(c) where the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or question, the grounds of appeal is one of mixed law and fact;
(d) Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact, and;
(e) a ground of law arises where the ground of appeal shows that the court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.’ Per Onnoghen JSC
ISSUE IN CONTENTION BETWEEN PARTIES – WHERE A PARTY FAILS TO REACT TO IT, HE IS DEEMED TO HAVE ACCEPTED THE ISSUE
“Though it is settled law that where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent.”
GROUND OF APPEAL – LEAVE OF COURT IS REQUIRED WHERE A GROUND(S) OF APPEAL IS OF FACT OR MIXED LAW AND FACTS
“It is settled law that where a ground(s) of appeal is/are of fact or mixed law and fact, the appellant must obtain the leave of either the court that gave the decision against which the ground(s) is (are) raised or of the appellate court. In the instant case, if the ground(s) of appeal is/are of fact or mixed law and fact, the appellant is expected, by the provisions of Section 233(3) of the constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the 1999 Constitution) to obtain the leave of either the Court of Appeal or the Supreme Court.”
GROUND OF APPEAL – REQUIREMENT IN DETERMINING THE NATURE OF A GROUND OF APPEAL
“It is settled law that in order to determine the nature of the ground of appeal, one must look closely at the main ground together with the particulars thereof to see whether it is a ground of law, fact, or mixed law and fact. It is therefore, not enough for counsel for the appellant to brand a ground of appeal a ground of law to make it one. It is also settled law that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing.”
QUESTION OF LAW OR GROUNDS OF LAW – MEANING OF QUESTION OF LAW OR GROUNDS OF LAW
“A question of law or grounds of law can be said to have three meanings, to wit:-
a) a question the court is bound to answer in accordance with a rule of law, the process of answering of which question the court would exercise no discretion in whatever manner; it is a question predetermined and authoritatively answered by the law;
b) the second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true rule of law is on a certain matter which question usually arises out of the uncertainty of the law;
c) the third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the judge instead of a jury is a question of law, even though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the judge.
In addition to the above is the determination of the reasonable and probable cause for a prosecution in the tort of malicious prosecution, which is one of fact, but is a matter of law to be determined by the judge – See Anoghalu v. Oraelosi (1999) 13 NWLR (Pt. 634) 297.”
CASES CITED
Anoghalu v. Oraelosi (1999) 13 NWLR (Pt. 634) 297.
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999|