OSAHON NATHANIEL OBAYUWANA & ORS V CHIEF JOHN OSAMEDE ADUN

suit no: 831/2015

Legalpedia Electronic Citation: (2020) Legalpedia (SC) 14106

AREAS OF LAW:

Appeal, Constitutional Law, Court, Customary Law, Damages, Land Law, Practice And Procedure

SUMMARY OF FACTS

The Plaintiffs/Appellants filed an action against the Defendant/ Respondent at the Edo state High Court, wherein they claimed a declaration that the 1st Plaintiff is the beneficial owner under Bini Native Law and Custom of all that property situate and lying at No. 16, Old Eguanogbe Street, Benin City having inherited same from his late father, late Pa. Samson Ewansiha Obayuwana, who died testate vide his Will dated 14/5/2002, and as such, 1^st Plaintiff is the one entitled to Statutory Right of Occupancy in respect of that property.

They also sought an Order that the Defendant shall pay the sum of N22, 000.000.00 (twenty two million naira) being special and general damages for the illegal destruction and occupation of the Plaintiffs property.

At the conclusion of the trial, the trial court found that the Respondent had not proved a better title to the land in dispute hence; he entered judgment in favour of the Plaintiffs. Dissatisfied with the decision of the trial court, the Respondent filed an appeal to the Court of Appeal, which affirmed the decision of the trial court.

The Appellants have yet filed a Notice of Appeal containing two Grounds of Appeal to this Court.

The Respondent filed a preliminary objection challenging the competence of the Grounds of Appeal, on ground that they are either on facts and mixed law and fact, which requires the leave of court and since no leave was sought, the Notice of Appeal is grossly and incurably defective.

 

HELD:

Preliminary Objection Sustained, Appeal Struck out

ISSUE FOR DETERMINATION

Nil

 

RATIONES

APPEAL, PRACTICE AND PROCEDURE

“it is settled that a ground of appeal consists of error of law or fact, which an Appellant sees as a defect in a Judgment, and which he relies upon in asking an appellate Court to set it aside – see Metal Const. W. A. Ltd. V. Migliore 0990) J NWLR (Pt. 126) 299.

The Appellant must itemize the error or misdirection in the Particulars to the Ground(s) of Appeal. The Particulars of Error or Misdirection should not be independent complaints from the Ground(s) of Appeal but ancillary to it – see Globe Fishing Ind. Ltd. V. Coker (1990) 7NWLR (Pt. 162) 265 and Nyako V. Adamawa State House of Assembly & Ors. (2016) LPELR-41822(SC), wherein this Court per M. D. Muhammad, JSC, observed that – ‘

The law does not allow a Party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against a decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the Issue in controversy between the Parties.

Thus, in determining its category, the Ground of Appeal must be construed together with the Particulars of Error, because its classification as a ground of law, can only give competence to an appeal without leave, if the nature of the misdirection or the error clearly stated in the Particulars, bears out the category assigned to it – Garuba V. Omokhodon (2071) 6-7SC (Pt. V) 89”. PER A.A.AUGIE, J.S.C

GROUND OF APPEAL – CONDITION PRECEDENT TO THE VALIDITY OF A GROUND OF APPEAL INVOLVING QUESTIONS OF FACT OR OF MIXED LAW AND FACT

“So where the Ground of Appeal involves questions of fact or of mixed law and fact, leave to appeal must be obtained from the Court of Appeal or this Court. Failure to obtain the requisite leave renders the Appeal filed incompetent – see Garuba V. Omokhodon (supra), Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 and Akpasubi V. Umweni (1982) 11SC113, where Eso, JSC, observed:

The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where – – question of fact has been brought before this Court without leave, the Court has no jurisdiction.

Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – see Ukpong V. Comm., for Finance and Econ. Dev. (supra), wherein Onnoghen, JSC (as he then was) explained –

Where an appeal is to be with Leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same.

• PER A.A.AUGIE, J.S.C

GROUND OF APPEAL – GUIDING PRINCIPLES IN DETERMINING WHETHER A GROUND OF APPEAL IS A GROUND OF LAW OR GROUND OF FACT OR MIXED LAW AND FACT

“However, this Court has laid down guidelines in numerous cases, which set out parameters, for finding answers to the said question – see Board of Custom & Excise V. Barau (1982) NSCC (Vol. 13) 358, wherein this Court per Eso, JSC, aptly observed –

The Court of Appeal has to decide first, as a matter of law, that a trial Court failed to make use of the advantage it has of seeing the Witnesses – – before proceeding to substitute as a matter of fact, its own finding made on the printed evidence—   it is only where there is a wrong application of such facts that a Court of Appeal interferes. Where, however, the Court of Appeal finds as a matter of law that the facts have been correctly applied, it does not interfere. The Court does not proceed any further to deal with facts – – This fine distinction is very important for it goes into the jurisdiction, which a Court of Appeal, exercises under the Constitution. While appeal to the Court of Appeal on the issue of law is as of right, an appeal on the facts is with leave of the Court from, where the appeal lies or the Court to which the appeals lies.

Where a trial Court fails to apply the facts, which it found, correctly to the circumstances of the case, 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 and not of fact. When the Court of Appeal finds such application to be wrong and decides to make its findings, such findings made by Court of Appeal are issues of fact and not law. Where the Court of Appeal interferes – – and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by a lower Court of Appeal is a ground of law and not of fact. It is only where there is an appeal against the finding made by the Court of Appeal in this exercise that issues of fact arise and leave will be required.

See Dairo V. Union Bank (2007) 16 NWLR (Pt 1059) 99, wherein this Court listed the following principles to serve as a guide:

– 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 of appeal is a ground of mixed law and fact – Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555.

1. A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact, is a ground of mixed law and fact – see Maigoro V. Garba (supra).
2. Where the evaluation of facts established by the trial Court before the Law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed Law and fact. See Maigoro V. Garba (supra).

iii.       Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simp liciter – Ogbechie V. Onochie (1986) 2NWLR (Pt. 23) 484

164. Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter. See Nwadike & Ors. V. Ibekwe & Ors. (1987) 12SC (Pt. 1) 164.
165. It is a ground of law if the adjudicating Tribunal or Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See 0’Kelly v. Trusthouse Forte P.I.C. (1983) 2All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra)pp. 491-492.
166. Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn from therefrom are grounds of law – Ogbechie V. Onochie (supra).

vii        It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See Nwadike & Ors. V. Ibekwe & Ors. (supra).

viii.     Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See Ogbechie V. Onochie (supra) where ESO, JSC, citing an article by C. T. Emery in Vol. 100 LQR held:

If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is question of law.

See also Metal Const. W.A. Ltd. V. Migliore (supra), wherein this Court per Obaseki, JSC, expatiated on the principles, as follows:

Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc.

Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by the rules of Court a particular decision or disposal of the case – – in a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.

• PER A.A.AUGIE, J.S.C

GROUND OF APPEAL – WHETHER A FAILURE TO GIVE PARTICULARS OF ERROR OF LAW IN A GROUND OF APPEAL IS SUFFICIENT TO RENDER SUCH GROUND INCOMPETENT

“But the Appellants are right that the position of the law is that once the error complained of, is identified and properly oriented in the Ground of Appeal, the fact that it has no Particulars is not enough for an appellate Court to sidestep from doing justice -see Best (Nig.) Ltd. V. B.H. (Nig. Ltd. (2011) 5NWLR (Pt 1239) 95, Omisore V. Aregbesola (2015) 15 NWLR (Pt 1482) 205, and Ukpong V. Comm. for Finance (supra, wherein this Court held –

It is settled law that though an Appellant is required to give particulars of error(s) of law in a ground of appeal complaining of error in law, it is not every failure to do so that will render the ground so couched incompetent particularly where sufficient particulars can be gleaned from the ground of appeal and the opponent and the Court are left in no doubt as to the particulars on which the grounds are founded. In this case, the said Ground 2 of the Grounds of Appeal says –

The learned justice of the Court of Appeal erred in law when they held thus:

“….. it is apparent that what was not conclusively determined is the value of the Respondent’s property destroyed by the Appellant, which has not been proved. It is my humble but firm view that the claim under that head being in the nature of special damages for which it is trite law that same must be strictly proved”, when the uncontroverted evidence of PW5, the expert witness, was not considered by the Court thereby occasioning a very serious miscarriage of justice.

• PER A.A.AUGIE, J.S.C

GROUND OF APPEAL – NATURE OF GROUND OF APPEAL OF MIXED LAW AND FACT

“Besides, as this Court said in Maigoro V. Garba (1999) 10NWLR (Pt. 624) 555, where the Court is being invited to investigate the existence or otherwise of facts upon which an award of damages was based, such a ground of appeal is a ground of mixed law and fact. PER A.A.AUGIE, J.S.C

GROUNDS OF APPEAL – CONDITION PRECEDENT FOR FILING AN APPEAL WHERE THE GROUNDS OF APPEAL ARE OF FACTS OR MIXED LAW AND FACT

“It is clear from the myriad of authorities on the subject and in the light of the provision of section 233[2] of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), that where the grounds of appeal are of fact or mixed law and fact, leave of this court or the court below must be sought before an appeal is lodged on those grounds. Failure to obtain such leave robs this court of jurisdiction to entertain those grounds.   Those grounds are therefore incompetent and must be struck out. See Irabor & Anor v Ogaiamien (1999) LPELR – 1535 (SC); Akinyemi v Odu’a Investment Co. Ltd (2012) LPELR – 8270 (SC); Umanah v Nigeria Deposit Insurance Corporation (2016) LPELR 42556 (SC); Metal Construction (West Africa) Ltd v Migliore & Ors”. PER J.I.OKORO,J.S.C

LEAVE OF COURT – EFFECT OF A FAILURE TO OBTAIN LEAVE OF COURT WHERE SAME IS A CONDITION PRECEDENT TO IGNITING THE JURISDICTION OF COURT

“Therefore, where there is need for the leave, the situation poses a condition precedent to the igniting of the jurisdiction of the Supreme Court to hear the matter. Stated differently, the requirement of leave where it must be obtained in line with Section 233 (3) CFRN, the Appellants must fulfill the condition precedent before the Court can be vested with the requisite jurisdiction to entertain the appeal”. PER U.M.A.AJI, J.S.C

LEAVE TO APPEAL – CONSTITUTIONAL PROVISION ON LEAVE TO APPEAL

“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. 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 Appellants never sought and obtained leave to file the grounds. See Per PETER-ODILI, JSC in Nikagbate V. Opaye & Anor {2018} LPELR-43704(SC)”. PER U.M.A.AJI, J.S.C

STATUTE REFERRED TO

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