CORAM
HON. JUSTICE OYEBISI F. OMOLEYE (JP)
PARTIES
JOEL JOSEPH LENBANG APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The facts of the case are that the substantive matter was at the Federal High Court, when the Appellant filed an application to the trial court for the Respondent to close his case. Although the Respondent had already called twenty witnesses before its case was closed, nevertheless the Respondent brought an application praying the court below to re-open the case of the Respondent amongst other prayers. After much consideration of the application, the trial court reopened the case of the Respondent for continuation of hearing of the main matter. Dissatisfied with the decision of the trial court, the Appellant has lodged an appeal on the grounds that the trial court failed/neglected to consider the evidence led and the submissions of counsels amongst others. However, the Respondent raised a preliminary objection contending that the instant appeal being an interlocutory appeal arising from the exercise of discretion of the Court below is not as of right; hence leave of either the court below or the Court of Appeal must be sought and obtained.
HELD
Appeal Struck Out
ISSUES
PRELIMINARY OBJECTION Whether the Appellant’s Notice of Appeal dated 9th March, and filed 14th March, 2018 is competent in law.”
RATIONES DECIDENDI
PRELIMINARY OBJECTION TO AN APPEAL – DUTY OF COURT WHEN A PRELIMINARY OBJECTION TO AN APPEAL IS RAISED
“Where a preliminary objection is raised as to the competence vel non of an appeal, the preliminary objection has to be taken first. There is no need citing any authority in support of this trite principle of law. See however the decision of this Court in Abiola vs. Olawoye (2006) 13 NWLR (Pt. 996) 1”.
APPEAL-MEANING OF AN APPEAL
“An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether on a proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision.”
APPEAL- NATURE OF AN APPEAL
“An appeal should be a complaint against the decision of the trial Court. Thus in the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a party. Parties can only urge on appeal points arising from a decision of a trial Court on an issue submitted to it for determination. See the decision of the Supreme Court in Oredoyin vs. Arowolo (1989) 4 NWLR (Pt. 114) 172 and the decision of this Court in Iyen vs. F.R.N (2009) LPELR-8208.”
GROUND OF APPEAL –NATURE OF A GROUND OF APPEAL
“A ground of appeal must give the exact particulars of the mistake, error or misdirection alleged. See the decision of this Court in Kalu vs. Uzor (2006) 8 NWLR (Pt. 981) 66.”
APPEAL – INSTANCES WHEN AN APPEAL WILL LIES AS OF RIGHT AND WITH THE LEAVE OF COURT
“Where an appeal is against an interlocutory decision of a Court and it raises a question of fact or mixed law and facts leave of the Court is required. However, an appeal is as of right and requires no leave of Court where the decision appealed against is either interlocutory or final provided the ground of appeal involves a question of law alone. See the decisions of this Court in Amara vs. Alo (1995) 7 NWLR (Pt. 409) 623, Alamineyeseigha vs. C.J.N (2005) 1 NWLR (Pt. 906) 60 and Maduabuchukwu vs. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475.”
GROUNDS OF APPEAL- DETERMINATIONOF GROUNDS OF APPEAL OF LAW, MIXED LAW AND FACT OR FACT SIMPLICITER
“It is not the label given to a particular ground of appeal by counsel that determines whether it is of law, mixed law and fact or fact simpliciter. See Yusuf vs. U.B.A Ltd (1996) 6 NWLR (Pt. 457) 632. The line of demarcation between mixed law and fact on one hand and law on other is very thin. It is for this reason that counsel have often been advised that prudence demands that they should seek leave in most cases unless where a ground is obviously that of law. See Onifade vs. Olayiwola & Ors (1990) LPELR-2680 SC.”
PRINCIPLE OF FAIR HEARING – SCOPE OF THE PRINCIPLE OF FAIR HEARING
“Fair hearing envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court hearing the parties should be fair and impartial without showing any degree of bias. See Alshom S. A. vs. Saraki (2005) LPELR-435.”
APPEAL -WHETHER AN APPEAL CAN LIE AGAINST THE NON EVALUATION OR IMPROPER APPRAISAL OF EVIDENCE
“Appellant is entitled to appeal against non evaluation or improper appraisal of evidence led. But that should not be done under the guise of right to fair hearing.”
EXERCISE OF JUDICIAL DISCRETION – DUTY OF COURT IN THE EXERCISE OF ITS DISCRETION TO RE OPEN A CASE
“Undoubtedly where a Court is called upon to exercise its discretion to re-open a case as in this matter, it looks at the affidavit evidence before exercising its discretion. It is inappropriate to address such matter of discretion as law. The facts leading to the exercise of discretion are mere facts even though law will be applied to those facts. See N.N.S Co. Ltd vs. Establishment SIMA of Vaduz (1990) LPELR-2004.”
GROUND OF APPEAL – REQUIREMENT OF OBTAINING THE LEAVE OF COURT WHEN FILING AN APPEAL ON MIXED LAW AND FACTS
“It is not correct therefore to say that Ground Two is on law alone. An appeal on this ground must therefore be with the leave of the Court.”
APPEAL- WHEN IS AN APPEAL BROUGHT?
“As pointed out earlier in this judgment parties can only urge on appeal points arising from a decision of a trial Court on an issue submitted to it for determination. See Iyen vs. FRN (supra) and Oredoyin vs. Arowolo (supra).”
CASES CITED
None
STATUTES REFERRED TO
Administration of Criminal Justice Act, 2015|Constitution of the Federal Republic of Nigeria 1999(as amended)|
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