CORAM

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PARTIES

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EDWARD NIKAGBATE (for himself and on behalf of Nikagbate Oki f amily of Odeile Okere) APPELLANTS

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JOSEPH OPAYE & ANOR

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

APPEAL, COURT, LAND LAW, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Plaintiff/Appellant sued the Defendants/Respondents at Warri High Court, Delta State, on a Writ of Summons and Statement of Claim seeking declaratory, injunctive reliefs and general damages. Pleadings were filed and exchanged by counsel. The case eventually proceeded to trial. The Plaintiff and Defendants led evidence in support of their averments in their respective pleadings. At the conclusion of the trial, the judge entered judgement for the Defendants and consequently dismissed the case. Dissatisfied with the trial court’s judgment, the Plaintiff filed an appeal at the Court of Appeal, Benin City Division, which upheld the judgement of the trial court and dismissed all the Appellant’s claims hence, a further appeal to this Court. The Respondents raised a preliminary objection on the lack of jurisdiction of this court to entertain this appeal as the Appellant did not obtain the leave of the lower court or this Court to appeal as required by section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as all grounds of appeal filed by the Appellant are on facts or mixed law and facts.

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HELD

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Preliminary Objection Sustained, Appeal Struck Out.

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ISSUES

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None

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RATIONES DECIDENDI

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LEAVE OF COURT – STATUS OF A NOTICE OF APPEAL FILED WITHOUT OBTAINING THE LEAVE OF COURT WHERE SAME IS A CONDITION PRECEDENT

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“Leave means permission. Any Notice of Appeal filed in the Court of Appeal or the Supreme Court where the grounds of Appeal are on facts or mixed law and facts and leave was not obtained before filing, the Notice of Appeal is null and void and of no effect and the appeal would be struck out. See Nwaolisah v Nwabuloh (2011) 6-7SC(Pt. ii)p.l38 NNPC & anor V Famfa Oil Ltd (2012) 5SC (Pt ii), Anachebe v lfeoma &2ors (2014) 6-7SC(Pt. ii)p. l”.

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LEAVE OF COURT- CONSEQUENCES OF FILING GROUNDS OF APPEAL BASED ON FACT OR MIXED LAW AND FACT WITHOUT FIRST OBTAINING THE LEAVE OF COURT TO APPEAL

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“For the purpose of clarity I must state that section 233 of the Constitution provides that leave should be obtained when filing grounds of appeal, based on fact or mixed law and fact. Where such grounds are filed without obtaining leave, they are incompetent and should be struck out. Where leave to appeal is required but was not obtained the court would have no jurisdiction to hear the appeal. It is only where the ground of appeal involves law alone that the appellant can appeal as of right.”

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GROUNDS OF APPEAL- GUIDES TO DISTINGUISH A GROUND OF LAW FROM A GROUND OF FACT OR MIXED LAW AND FACT

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“In Ogbechie &ors v Onochie & ors (supra) Eso JSC gave several guides from foreign authorities on now to distinguish a ground of law from a ground of fact, or a ground of mixed law and fact, I shall refer to a few of them.
1. Where the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, it is a question of mixed law and fact.
2. If the court finds 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.
3. Where admissible evidence has been led its assessment is entirely for the court. It is a question of fact.
4. If the court approached the construction of a legal term of act in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.
5. Where a trial court fails to apply facts which it has found correctly to the circumstances of the case before it, and there is an appeal to the Court of Appeal which alleges a misdirection by the trial court. The ground of appeal alleging the misdirection is a ground of law. When the Court of Appeal makes its own findings, because the trial court was wrong such findings by the Court of Appeal are issues of fact.”

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APPEALS- WHETHER THERE EXIST TIME LIMITATION FOR FILING APPEALS

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“Furthermore I observed that learned counsel for the appellant is strongly of the view that there are many flaws in exhibits D and E. It beats my imagination why he never filed an appeal against exhibit E. Exhibit E was delivered in 1965. There is no time limitation for filing appeals. All learned counsel needs to do is to satisfy the court with affidavit evidence the reasons for the delay in appealing. Once this is done and the court is satisfied with the reasons for the delay an appeal can he brought even after one hundred years after the judgment was delivered.”

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APPEALS – DISTINCTION BETWEEN APPEAL AS OF RIGHT AND APPEAL WITH LEAVE OF COURT

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“The section of the 1999 Constitution at the base of this objection is section 233 subsections (2) and (3) and I shall quote them hereunder, viz:
233 (2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as the right in the following cases
(a) Where the ground of appeal involves questions of law alone, decisions in any civil and criminal proceedings before the Court of Appeal,
(b) Decisions in any civil or criminal proceedings on questions as to the interpretation of application of constitution,
(c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this constitution has been, is being or is likely to be contrived I relation to any person.
(d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by another court;…..
(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.”

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LEAVE OF COURT – IMPLICATION OF A FAILURE TO OBTAIN LEAVE OF COURT WHERE THE GROUNDS OF APPEAL ARE OF FACTS OR MIXED LAW AND FACTS

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“This court had stated in no unmistakable terms the implication of a failure to obtain leave of court where the grounds of appeal are of facts or mixed law and facts in the case of Abdul v Congress for Progressive Change (CPC) (2014) 1 NWLR (Pt. 1388) 299 at 325 – 326, thus:
“Leave is a condition precedent to appealing under section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, as far as leave to appeal to the court is concerned, the general power of the court to entertain it is as per the constitutional provisions as contained in section 233(3) of the Constitution. The power cannot be superseded, whittled down or otherwise enlarged by the provision of Order 2 Rule 32 of the Supreme Court rules. It means that the constitutional requirement on leave to appeal is Supreme over the provisions of the Rules. Section 233 (3) of the Constitutional only has reinforced the provision of Order 2 Rule 32 of the Supreme Court Rules on appealing on findings of fact by two lower courts. In the instant case, grounds 1, 2, 3 and 4 of the notice of appeal are grounds of mixed law and facts. Leave was therefore condition precedent to appeal under section 233 (3) of the Constitution”.
Also in the case of Enterprise Bank Limited v Aroso (2014) 3 NWLR (Pt. 1394) 256 at 281, this court held thus:
“By virtue of section 233 (2) (a) and (3) of the 1999 Constitution, if a ground of appeal from the Court of Appeal to the Supreme Court involves question of law alone, the appellant can appeal as of right. If or when a ground of appeal is based on facts alone or on mixed law and facts, it cannot be filed in the Supreme Court unless leave is sought and obtained. The above is very important in that the Supreme Court would have no jurisdiction to hear an appeal where the grounds of appeal are on facts or/and mixed law and facts and the appellant never sought and obtained leave to file the grounds.”

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CASES CITED

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STATUTES REFERRED TO

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

Supreme Court Rules

 

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