FORT ROYAL HOMES LTD & ANOR v. EFCC & ANOR

“The Grounds of Appeal have been labelled grounds of law which do not situate them as pure law instead of grounds of mixed law and facts or of facts since certain parts of the evidence need clarification which they really are. The position necessitated an application for leave to appeal on facts or mixed law and facts and that not having been sought and obtained the validity of the appeal has been called to question in line with Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The simple position in the light of the absence of leave either of the Court below or this Court firstly obtained, the condition precedent not fulfilled nullifies the process earlier termed an appeal. Therefore the incompetence of the appeal renders any proceedings thereafter a nullity hence the option available right now is to strike out the appeal. –

“I agree with His Lordship’s view that the ground of appeal is incompetent being a ground of mixed law and fact, which cannot be raised without leave of either the Court below or this Court, Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence grounds of appeal challenging such conclusions are grounds of mixed law and fact. See Ajayi and Anor v Omorogbe (1993) LPELR -290 (SC) 23; F-G; MDPDT v Okonkwo [2001] 3 SC 76; ACB Plc v Obmiami Brick and Stone Nigeria Ltd [1993] 6 SCNJ 98. As this Court held in ACB Plc v Obmiami Brick and Stone Nigeria Ltd (1993) LPELR – 206 (SC) 27; E-F: It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law. Where on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion. –

The Appellant’s Counsel had erroneously labelled the grounds of appeal as being errors of law entitling the Appellant to appeal as of right. On that error, this appeal was lodged or brought as of right pursuant to Section 233(2) of the 1999 Constitution, as amended. In substance, the grounds of appeal do not, in actuality, raise any issues of pure law alone. The grounds rather raise issues of mixed law and facts, which by dint of Section 233(3) of the Constitution require leave, first sought and obtained, before filing as a condition precedent. No such leave was sought and obtained. This insubordination of the mandatory provisions of the Constitution renders the appeal illegal, null and void ab initio. And it will not be countenanced. –