LEGALPEDIA CITATION: LER[2017]SC.817/2014

Areas Of Law:
APPEAL, COURT, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary Of Facts:

The Plaintiffs/Appellants by a Writ of Summons before the trial court, claimed against the Defendants/Respondents, a declaration that the Plaintiffs are not indebted to the Defendant in any sum of money whatsoever whether in local or foreign currency, the sum of N100, 000,000.00 (One Hundred Million Naira) in favour of the 1st Plaintiff being general damages for detinue, an order of Court mandating the Defendant to return to the 1st Plaintiff Certificate of Occupancy Nos. FCT/ABU/CR.296 in respect of Plot No. 756 Maitama A5 District, measuring approximately 2189.30 square meters and FCT/ABU/NG488 in respect of plot No. 71A3, Garki II District, measuring approximately 1195.06 square meters which the 1st Plaintiff deposited with the Defendant in respect of overdraft which is been fully liquidated among others.

The Defendant filed their Statement of Defence and counter claimed the sum of N17, 099,169.99 (Seventeen Million and Ninety Nine Thousand, One Hundred and Sixty Nine Naira Ninety Nine Kobo only) being the outstanding due to the Defendant/Counter Claimant from the 1st and 3rd Defendants, interest at the rate of 38% per annum from the 17th June, 1999 till date of judgment and 10% thereafter until full payment, an order of foreclosure and sale of all that property located at Plot 755 Maitama A5, District measuring about 2189.30 square meters covered by Certificate of Occupancy No. FCT/ABU/CR 296 in liquidation of the debts owed by the 1st, 2nd and 3rd Defendants amongst other claims.

At the close of the cases and final addresses, the trial court held that the Plaintiffs/Appellants were no longer indebted to the Defendant/Respondent in any sum in Naira denomination, and that in US Dollar Denomination, however, the 2nd and 3rd Plaintiffs/Appellants were still liable in the sum of $1,000,000.00 USD to the Defendant/Respondent. The Appellants’ appeal to the Court of Appeal, Abuja, was dismissed, hence a further appeal before this Court at the instance of the Appellant.

The Respondent filed a preliminary objection to the competence of the appeal on the grounds that the court lacks the jurisdiction to entertain an appeal based on facts or mixed law and facts without leave.

Held

Preliminary Objection Allowed, Appeal Struck Out

Issues For Determination

Preliminary Objection

• Whether the Appellant’s appeal is competent?

Rationes

NOTICE OF APPEAL – DETERMINATION OF WHETHER A NOTICE OF APPEAL HAS PROPERLY INITIATED AN APPEAL BEFORE AN APPELLATE COURT

“The Notice of Appeal is an originating process. To determine whether or not it has properly initiated an appeal before this Court under Section 233 (3) of the 1999 Constitution, the Notice of Appeal shall be submitted to scrutiny in order to determine whether or not it has strictly complied with the relevant enabling provisions of the law. See Abbas v. Terra (2013) 3 NWLR (pt. 1334) 284 at 286. The enabling provisions of Section 233 (2) & (3) of the Constitution are clear:

(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in following cases-

a). where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

b)

c)

d)

e)

f)

(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”. PER E. EKO, J.S.C.

GROUND OF APPEAL – INSTANCE WHEN A GROUND OF APPEAL IS ONE OF FACTS

“Where the ground of appeal is couched in a way, as the instant ground one, that reveals or questions the evaluation of facts by the lower Tribunal before the Tribunal would come to its finding of fact such a ground is one of facts, or at best one of mixed law and facts. As Onu, JSC, stated in Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nichola Okonkwo (2001) 3 SC 76; (2001) 6 NWLR (pt. 710) – where the error complained of is one predicated on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and facts. A. C. B. PLC v. Obmiami Brick & Stone (1993) 6 SCNJ 98; (1993) 5 NWLR (pt. 274) 399. PER E. EKO, J.S.C.

“CONTRADICT” – MEANING OF “CONTRADICT”

“The verb contradict, in its ordinary grammatical meaning, also means to assail, controvert, deny, dispute or traverse. One fact or set of facts is required to contradict, controvert, or traverse another fact or set of facts. That is why in Section 123 of the Evidence Act, 2011, it is provided that facts not disputed or which are taken as admitted need no further proof. See also Din v. African Newspapers of Nigeria Ltd. (1990) 21 NSCC (pt. 2) 313 at 320”. PER E. EKO, J.S.C.

GROUNDS OF APPEAL – EFFECT OF NON COMPLIANCE WITH THE REQUIREMENT OF FILING GROUNDS OF APPEAL WITH MIXED LAW AND FACTS

In the instant case with all the grounds of appeal being of mixed law and fact and leave of neither the lower Court nor this Court not having been sought and obtained the respondent/objector is right to insist that we decline jurisdiction. Section 233(3) of the 1999 Constitution as amended supports their contention. See also Ugboaja V. Akintoye – Sowemimo (2008) 16 NWLR (Pt 1113) 278 and Jimoh V. Akande (2009) 5 NWLR (Pt 1135) 549″. PER M. D. MUHAMMAD, J.S.C

LEAVE OF COURT -EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT TO APPEAL WHERE SAME IS A CONDITION PRECEDENT TO FILING AN APPEAL

“It is settled law that failure to obtain leave to appeal where leave is required is fatal to the appeal. The leave of Court is a condition precedent to the jurisdiction of the appellate Court to entertain the appeal. Failure to obtain leave where necessary renders the grounds of appeal requiring such leave and any issues formulated therefrom incompetent. See: Oshatoba Vs Olujitan (2000) 5 NWLR (Pt. 655) 159; Metal Construction…… Vs Migliore (1990) 1 NWLR (Pt. 126) 99; Ikweki Vs Ebele (2005) 11 NWLR (Pt. 936) 397; Tilbury Construction Ltd. Vs Ogunniyi (1988) 2 NWLR (Pt. 74) 64. PER K. M.O. KEKERE-EKUN, J.S.C

APPEAL AS OF RIGHT AND WITH LEAVE OF COURT – INSTANCES WHEN AN APPELLANT CAN APPEAL FROM THE COURT OF APPEAL TO THE SUPREME COURT AS OF RIGHT AND WITH LEAVE OF COURT

“By virtue of Section 233(2)(a) of the 1999 Constitution, an appellant can appeal as of right from the Court of Appeal to the Supreme Court where the ground of appeal is a ground of law alone in respect of decisions in any civil or criminal proceedings before the Court of Appeal. By virtue of Section 233(3) of the 1999 Constitution, on the other hand, an appeal to this Court on facts alone or on mixed law and facts can only be by leave of this Court or the Court below. See: KTP Ltd. Vs G & H (Nig.) Ltd. (2005) 13 NWLR (Pt. 943) 680; Maigoro Vs Garba (1999) 10 NWLR (pt. 624) 555 @ 568; CBN Vs Okojie (2002) 8 NWLR (Pt. 768) 48; Abubakar Vs Dankwambo (2015) 18 NWLR (Pt. 1491) 213 @ 234-235”. PER K. M.O. KEKERE-EKUN, J.S.C

GROUND OF APPEAL – WHETHER THE MERE DESCRIPTION OF A GROUND OF APPEAL AS AN ERROR OF LAW SUFFICES

“It has been held that the mere description of a ground of appeal as an error of law is not sufficient to make it so. See: Yaro Vs Arewa Construction Ltd. (2007) 6 SC (Pt. II) 149; Ojemen & Ors. Vs Momodu II (1983) SC 173. PER K. M.O. KEKERE-EKUN, J.S.C

GROUND OF APPEAL – RULE EMPLOYED BY COURTS IN DETERMINING THE DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACTS

“It is recognised that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See: Odunukwe vs Ofomata (2010) 18 NWLR (Pt. 125) 404; Metal Construction (W.A.) Ltd. vs Migliore (1990) 1 NWLR (Pt. 126) 299; Ogbechie vs Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam vs Anukam (2008) 5 NWLR (Pt. 1081) 455”. PER K. M.O. KEKERE-EKUN, J.S.C

GROUNDS OF APPEAL – DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACT

“Admittedly, the difficulty in recognizing and/or distinguishing a ground of law from a ground of fact or mixed law and fact has always been recognized by the Courts. The position as enunciated by this Court in several authorities on this issue is for the Court to examine the grounds of appeal involved to see whether the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or not in dispute in which case the question in the ground is one of law. Where the grounds would require questioning the evaluation of facts by the lower Court before the application of the law, then the question in the involved grounds would be of mixed law and fact. See Ogbechie V. Onochie (1986) 2 NWLR (pt. 23) 484, Orakosim V. Menkiti (2001) 5 SC (pt. 1) 72, Osasona V. Ajayi (2004) 5 SC, (pt. 1) 88, Global West Vessel Specialist Nig. Ltd. V. Nigeria LNG Ltd & Anor. (2017) LPELR – 41967 (SC)”. PER J. I. OKORO, J.S.C.

Statutes Referred To:

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

Evidence Act, 2011

 

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