PROF. ALFRED C. IKEME & ANOR v. DR. BENJAMIN UGWU (2013)

PROF. ALFRED C. IKEME & ANOR v. DR. BENJAMIN UGWU

(2013)LCN/6328(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2013

CA/J/112M/2013

JUSTICES

RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. PROF. ALFRED C. IKEME
2. FIRST BANK OF NIGERIA PLC Appellant(s)

AND

DR. BENJAMIN UGWU Respondent(s)

RATIO

DEFINITION OF THE TERM “LEAVE OF COURT”

The need for leave to start proceeding either to initiate proceeding at the High Court or to initiate an appeal to this Court or to the Supreme Court of Nigeria is not new. Its purpose is to prevent the time of the Court(s) being wasted on tenuous matters in civil or criminal proceedings by litigants, State or a Defendant in criminal matters as well. Leave of the Court has been defined in the Black’s Law Dictionary Eighth Edition page 910 to mean:-
“Judicial permission to follow a non-routine procedure…”
Similar meaning or what it entails was posited by the Supreme Court in the case of S. U. OJEMEN & ORS VS HIS HIGHNESS WILLIAM O. MOMODU II (THE OGIRRUA OF IRRUA) & ORS (1983) 3 SC 173 at pages 205 – 206 where Obaseki JSC, who read the leading judgment said:-
“The phrase “an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court as of right”, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal Court of Appeal in the Supreme Court on grounds which involve questions of law alone. On the other hand, the provision that “an appeal shall lie… to the Supreme Court with leave of the Federal Court of Appeal or Supreme Court” implies that only the right to apply to the Federal Court of Appeal or supreme Court for leave to appeal is conferred by the Constitution on the aggrieved party, “Leave’ in this con means permission. See Webster’s New Twentieth Century Dictionary Unabridged. It is the courts, i.e. the Federal Court of Appeal and the Supreme court are given the power to grant the permission to aggrieved persons to appeal in this class of cases falling outside those which are within section 213 (2) (a) of the Constitution.” (underlined mine). PER IGE, J.C.A.

WHETHER OR NOT LEAVE OF THE CORT OF APPEAL MUST BE OBTAINED WHERE GROUND OF APPEAL BORDERS ON MIXED LAW AND FACTS OR FACTS

It is thus clear that where the ground of appeal borders on mixed law and facts or facts leave of Court of Appeal must be sought and obtained. It is constitutionally and statutorily mandatory as failure to obtain the prerequisite leave will render the appeal on those grounds or ground incompetent and liable to be struck out for incompetence. More importantly failure to obtain leave to appeal when one is needed will rob the Supreme Court of jurisdiction to entertain the appeal. See B. A. S. F. NIGERIA LIMITED VS FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 53 G-I TO 54 A-C where MUHAMMAD S. M. COOMASSIE, JSC who delivered the leading Judgment had this to say:-
“For this Court to have jurisdiction to hear and determine and appeal before it, no leave is required where the grounds of appeal involves question of law alone and simplicitar. Where the questions involve facts or mixed law and fact, the leave of court must be first sought and obtained. In the latter circumstance where the required leave is not obtained, the grounds of appeal would be incompetent and liable to be struck out. This court in Alhaji Tahir Maihoro Vs Alhaji Jibrin Garba (1999) 7 SCNJ 270 at 279 had clearly stated the Law. The statement of Ejiwunmi JSC, of blessed memory says:
“It is therefore clear that the court has no jurisdiction to entertain an appeal on a ground of act or of mixed law and fact unless of course, leave has been obtained. This point has been emphasized in a number of rent decisions; it is enough refer to only the following:-
Ohiwele Vs Lagos State Development Property Corporation (1983) 5 SC1; Olojuon Vs Ozima (1985) 2 NWLR (pt. 6) 167 AT PAGES 176 – 188; and J. B. Ogbechie & Ors. Vs Gabriel Onochie (1986) 2 NWLR 484. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling): By his application dated and filed the 8th day of May, 2013, the Respondent/Applicant prays for the following Orders viz:
“1. An order granting the applicant leave to appeal against the judgment of this Honourable Court in Appeal No: CA/J/15/2010 dated 27th March, 2013 to the Supreme Court of Nigeria on grounds of mixed law and fact.
2. And for such further order or orders as the Honourable court may deem fit to make in the circumstance.”
The application is predicated on six grounds namely:-
“1. The Honourable court on the 27th March, 2013, delivered its Judgment in respect of this appeal in favour of the appellant and against the respondent.
2. Dissatisfied by the said decision, the Respondent/Applicant instructed the law firm of Solomon E. Umoh SAN & Co to appeal against the said decision.
3. The aforesaid applicant’s counsel has prepared the Notice and Grounds of Appeal against the judgment of this Honourable Court in the above appeal.
4. The grounds of appeal contained in the said Notice of Appeal are substantial and arguable and stand a good chance of success on appeal.
5. The said grounds of appeal border on questions of law, and mixed law and facts.
6. It is trite law that a party who seeks to appeal against a decision of the court of law on grounds of mixed law and facts must first seek the leave of Court.”
The application was supported by 12 paragraph Affidavit sworn to in the Registry of this court on 8th May, 2013 by EUGENE N. EZE ESQ a Counsel in the Law Firm of Solomon E. Umoh (SAN) & Co. The application was accompanied by a written address. The Affidavit in support also had attached to it the judgment of this court delivered on 27th day of March, 2013 and Notice of Appeal marked as Exhibits BU1 and BU2 respectively.
The Appellants/Respondents filed Counter Affidavit consisting of 12 paragraphs against the Motion on Notice seeking the leave of this court to Appeal the judgment of this court in CA/J/15/2010 delivered on 27th March, 2013 as aforesaid. It was sworn to by MRS. O. N. ADESE a Learned counsel in the chambers of G. Ofodile Okafor & Co. for the Appellants/Respondents.
The said Counter Affidavit was accompanied with written Address in support of the said counter Affidavit. The APPLICANT found it necessary to depose AN APPLICANT’S FURTHER AND BETTER AFFIDAVIT TITLED FURTHER AND BETTER AFFIDAVIT AND WRITTEN ADDRESS IN SUPPORT OF same on 22nd day of May, 2013. It is observed that no written Address was attached thereto. What the Applicant did was that it filed APPLICANT’S REPLY ON POINTS OF LAW TO THE RESPONDENT’S COUNTER AFFIDAVIT ON 28th day of May, 2013. The Appellants/Respondents had earlier on, on 23rd day of May, 2013 filed FURTHER AND BETTER COUNTER AFFIDAVIT sworn to by O. N. Adese Mrs. a Legal practitioner in G. Ofodile Okafor & Co. The motion on Notice was argued on 3rd day of June, 2013 when learned Senior Counsel for the parties adopted their written Addresses and adumbrated on them.
In his written Address dated 21st day of May, 2013, the learned Senior counsel to the Respondent/Applicant, Solomon E. Umoh, SAN, stated that the Applicant filed the application to seek for the leave of this court to appeal against the judgment of this Court delivered on 27th day of March, 2013 to the Supreme Court on grounds of facts or mixed law and fact. He drew attention to the fact that upon being served with the Respondent/Applicant’s application the Appellants now Respondent to the Application under consideration and that the Applicant also filed Further and Better Affidavit as well as written address as ordered by this Court. He gave a brief history of the action leading to appeal in this court and culminating in the present application seeking leave to appeal. That the plaintiff initiated this action at the Plateau State High Court sometime in 1994. The case thereafter went through a number of Judges including Hon. Justice Felicia Dusu (deceased) Hon. Justice Oyetunde (Rtd), Hon Justice Naron (Rtd) as well as Hon Justice Damulak. That none of the Judges was able to conclude the hearing owing to what learned silk stated to be sudden death, retirement and otherwise.
The plaintiff’s matter was later reassigned to Hon. Justice Sirajo who fixed the case for hearing. According to Solomon E. Umoh SAN.
“When the matter came up before Hon. Justice Sirajo for the 1st time after series of exchange with the Plaintiff’s counsel, the Honourable court dismissed the matter for want of diligent prosecution at the instance of the defendant.
Aggrieved by the said decision, the applicant instructed his Counsel to file the relevant application to relist the suit as he was in court and still desirous of having his case determined on the merit. Following the said instruction, the applicant’s Counsel filed the said application and argued same which was granted and the matter was relisted with a view to having the matter determined on the merits.
However, before hearing could commence in the matter, the respondent brought a notice of appeal challenging the decision of the trial court regarding the relisting of the matter. This Honourable Court heard the appeal and allowed the appeal in part on 27th March, 2013 and accordingly proceeded to set aside the part of the ruling of the trial court relisting the matter as well as restored the earlier decision of the trial court dismissing the matter.”
The learned silk stated that the Applicant was aggrieved by the decision of this court and had instructed his counsel to appeal to the Supreme Court. That it is therefore necessary to obtain the leave of this Court to appeal since according to the senior counsel, the grounds of Appeal condescend on the issues of facts or mixed law and fact. He raise a lone question for determination viz:
Whether this application ought to be granted.
He submitted that by the provisions of section 233 (2) of the 1999 constitution, an appellant who desires to appeal against the judgment of the Court of Appeal to Supreme court on grounds of mixed law and fact or facts simpliciter must obtain the leave of the Court of Appeal or the Supreme court as the case may be before filing same otherwise says the learned silk for the Applicant, such appeal not being appeal as of right, will be clearly incompetent. He relied on the case of IRABOR VS OGAIAMIEN (1999) 8 NWLR (PT.616) 517 AT 525C.
That the Appellant as per his Exhibit “BU2” has exhibited the proposed Notice of Appeal along with the Judgment of this court marked Exhibit Appeal. That the said proposed Notice of Appeal has three grounds of Appeal. The Appellant according to Umoh SAN, is of the view that ground one of his proposed notice of Appeal is one of fact and that grounds two and three are grounds of mixed law and fact. He relied on the two Exhibits in support of the Applicant’s Motion on Notice.
He also relied on the facts of the case as hereinbefore narrated. The learned silk stated that the dismissal of the appellant’s case was for lack of diligent prosecution and so it flows and follow that by the said dismissal the appellant’s case was never heard on the merit. That the Applicant now decided to exercise his constitutional right of appeal and that ordinarily, the Applicant would not be denied the right. He cited and relied on the cases of IFEKANDU VS. UZOEGWU (2008) 15 NWLR (PT.1111) 508 and E.F.P. CO. LTD VS. NDIC (2007) 9 NWLR (PT.1039) 216.
The learned silk for the Applicant submitted that it is now axiomatic in law that where there is need to obtain leave of court when the ground of appeal are of fact or mixed law and fact, and one has not been obtained, it such ground of appeal will be incompetent and would be struck out. He relied on the cases of S. P. D. C. (NIG) LTD VS KATAD (NIG) LTD (2006) 1 NWLR (PT.960) 198 and IGIDI VS. IGBA (1999) 6 SC (PT.1) 114.
The learned silk believes it to be of importance as held by the Supreme Court decision to the effect that where a Counsel is unsure whether a ground of appeal is that of law, facts or mixed law and fact, it is prudent for counsel to seek and obtain the requisite leave to obviate the unpleasant consequences of having the ground treated as being incompetent relying on the case of IRABOR VS OGAIAMIEN (SUPRA) per OGUEGBU JSC at P. 525 E.F.
It is the further submission of the learned Senior Counsel, that since the present application is not intended to serve as an invitation to this court to review its decision he would rest his submission on the fact relevant to the application as set out by him earlier in his written submission. He urged this court to grant the application as prayed.
In his reply to the above submissions of Solomon Umoh SAN for the Respondent/Applicant, the learned Senior counsel to the Respondent G. Ofodile Okafor SAN started by stating what he believed to be the state of affairs leading to the motion on Notice under consideration. The learned silk informed the Court that this action as instituted against the Appellants/Respondents on 25th day of October 1994 and the matter passed through several courts including late Hon. Justice. Felicia Dusun until the case was reassigned to Sirajo J. on 16/7/2007 relying on page 47 of the Record of appeal. Seventeen months later according to G. Ofodile Okafor SAN THE MATTER WAS FIXED FOR HEARING BY Hon. JUSTICE M. D. Sirajo for the 8th day of April, 2009. That on trial date the Plaintiff was in court but instead of proceeding with his case preferred to seek for adjournment. The learned counsel to the Appellants/Respondents opposed the application for adjournment and the learned trial Judge refused the application and asked the plaintiff now Applicant to proceed with trial. The Plaintiff did not proceed and so his case was dismissed for want of prosecution. That 34 days after and that was on 12/5/2009 the Respondent/Applicant brought application seeking for extension of time to apply to have the order dismissing his case set aside by the trial court. The application was opposed by the Appellants/Respondents but notwithstanding their opposition the learned trial Judge relisted the Respondent/Applicant’s action, on 15th day of October, 2009. The Appellant/Respondent then appealed to this court and this court allowed their appeal against the Ruling of the trial court relisting the Respondent/Applicant’s action. This was on 27th day of March, 2013.
G. Ofodile Okafor SAN further informed the court that it was upon being dissatisfied with the judgment of this court aforesaid, the Respondent has now brought a motion on Notice filed on 8th day of May, 2013 seeking for leave of this Court to appeal to the Supreme Court on grounds of mixed law and facts. The Learned silk to the Appellants/Respondent referred to the various Affidavit evidence before the Court in respect of the application particularly the Appellants’/Respondents’ twelve paragraph Counter Affidavit and 13 paragraphs Further and Better Counter Affidavit filed in opposition to the application seeking leave of this court as aforesaid. The Learned Senior Counsel to the Appellants/Respondents placed reliance on the said Affidavits filed in opposition and raised a sole issue for determination on the Respondent/Applicant’s motion on Notice namely:-
“WHETHER THE PROPOSED GROUNDS OF APPEAL HAS DISCLOSED ARGUABLE ISSUES FOR THE COURT TO EXERCISE ITS DISCRETION IN FAVOUR OF GRANTING THE LEAVE TO APPEAL”
G. Ofodife Esq., SAN, the Learned Counsel to the Appellants/ Respondents stated that the three proposed grounds of appeal are all questions of fact or mixed law and fact. That an appeal on issues of fact is not a matter of common right but of special provision. That by Section 233 (3) of the 1999 Constitution, this court is conferred with the discretion and that indeed a duty is foisted on this court to refuse an applicant’s application or leave where the justice of the circumstances so dictates relying on the case of SPDC NIG LTD VS KATAD NIG LTD (2006) 1 NWLR (PART 960) 198 at 216 G – H.
He made the point that whenever and wherever leave of a Judge is required to be sought under a statutory provision, it means that the statute has conferred on the Judge some discretionary powers. He placed reliance on the case of FRN VS. WABARA (2013) 5 NWLR (Pt.1347) 331 at 354 A-B.
The learned Senior Counsel to the Appellants/Respondents believes that an application for leave to appeal must satisfy the requirements of the 2nd limb of ORDER 7 Rule 10 (2) and that the grounds of appeal must prima facie show good cause why the appeal should be heard.
That the Applicant has to show that the grounds of appeal disclosed arguable issues and not that the issues will succeed. The case of PRUDENT BANK & ORS VS ABDULMAKIL OBADAKU (2012) 2 NWLR (PART 1285) 504 at 527 A – B was cited in support. According to the learned Senior Counsel, the court is only concerned with whether there is some substance in the grounds of appeal worthy of any legal argument so that time would not be extended for nothing or just for the sake of it. He relied on the case of LINE FREIGHT SERVICES LTD V ALHAJI J.A. ADUTALA PROPERTY DEN & INVEST. CO LTD (2012) 1 NWLR (PT 1281) 371 at 383 D-E.
That ground 1 is allegation of misdirection on the facts when according to learned Senior Counsel, this court held that since the Applicant gave no reason for the delay, the trial court should not have granted the application. That of the 9 particulars of misdirection, only number 9 mentioned affidavit in support that the learned silk to the appellant queried misdirection complained of as according to him misdirection is an error as it entails a wrong direction either on law or fact. He placed reliance on the case of MAJOR I.E. UMORU (RTD) & OR V ALHIJI ABUBAKAR ZIBIRI & ORS (2003) 11 NWLR (PART 832) 647 at 656 D.
The learned counsel to the Appellants/Respondents Stated that ground two alleges misdirection in law which he said in fact is of mixed law and fact because this court held that the trial Judge did not act judiciously in vacating its order of dismissal and relisting the case. That the particulars supplied were not relied on by the trial Judge as according to learned silk, the only facts relied upon were the tardiness exhibited by the Plaintiff. That the tardiness of the applicant and his counsel was enough to deny them the discretion of the trial court on the principles laid down by the Supreme Court in the case of N.A. WILLIAMS VS HOPE RISING VOLUNTARY FINDS SOCIETY (1982) ANLR 1.
On ground three of the proposed ground of appeal, the Appellants/Respondents said it is an attack on the holding of this court that it was perverse for the trial court to hold that the delay of 34 days was not undue or excessive. That ground 3 is of mixed law and fact. That this court anchored its holding on the fact that having accepted that there was delay and no reason was proffered, the holding that delay was not undue was perverse. According to learned silk for Appellants/Respondents that holding and reasoning of this court have not been faulted.
G. Ofodife Okafor SAN opined that two of the cases cited by the Applicant are not on point in this application. That in the case of EFPCO LTD V. NDIC (2007) NWLR F-G (SIC) two of the grounds of appeal raises issue of jurisdiction of the trial court thereby making it distinguishable from the present application.
That if the grounds of appeal are devoid of any arguable issue, leave should be denied. The learned silk for Appellants/Respondent then opined:
“Issue of fact should end with the trial court and this Honourable court, only serious issues of law should go to the Supreme Court of Nigeria on Appeal.”
He finally submitted the application is not worthy of the exercise of the discretionary powers of this court in favour of the Applicant, and urged the Court to refuse same.
Now the application of the Applicant revolves around the intendment or meaning of provisions Section 233(1) (2) and 3 of the 1999 Constitution as amended as far as it relates to the application. The provisions of the said Section read:-
233. – (1) The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the 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)Decisions in any civil or criminal proceedings on question as to the interpretation or application of this 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 contravened in relation to any person;
(d)Decision 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 any other court;
(e) Decisions on any question –
(i) Whether any person has been validly elected to the office of President or Vice-President under this Constitution,
(ii) Whether the term of office of President or Vice-President has ceased,
(iii) Whether the office of President or Vice-President has become vacant; and
(h) Such other cases as may be prescribed by an Act of the National Assembly.
(3) Subjection to the provisions of subsection (2) of this section, an appeal shall lie form the decision of the court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
(4) The Supreme Court may dispose of any application for leave to appeal from any decision of the Court of Appeal in respect of any civil or criminal proceedings in which leave to appeal is necessary after consideration of the record of the proceedings if the Supreme Court is of the opinion that the interest of justice do not require an oral hearing of the application.
(5) Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court Appeal or the Supreme Court at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person, or subject to the provisions of this Constitution an any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.
(6) Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall m subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of curt for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
(Underlined mine).
The need for leave to start proceeding either to initiate proceeding at the High Court or to initiate an appeal to this Court or to the Supreme Court of Nigeria is not new. Its purpose is to prevent the time of the Court(s) being wasted on tenuous matters in civil or criminal proceedings by litigants, State or a Defendant in criminal matters as well

Leave of the Court has been defined in the Black’s Law Dictionary Eighth Edition page 910 to mean:-
“Judicial permission to follow a non-routine procedure…”
Similar meaning or what it entails was posited by the Supreme Court in the case of S. U. OJEMEN & ORS VS HIS HIGHNESS WILLIAM O. MOMODU II (THE OGIRRUA OF IRRUA) & ORS (1983) 3 SC 173 at pages 205 – 206 where Obaseki JSC, who read the leading judgment said:-
“The phrase “an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court as of right”, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal Court of Appeal in the Supreme Court on grounds which involve questions of law alone. On the other hand, the provision that “an appeal shall lie… to the Supreme Court with leave of the Federal Court of Appeal or Supreme Court” implies that only the right to apply to the Federal Court of Appeal or supreme Court for leave to appeal is conferred by the Constitution on the aggrieved party, “Leave’ in this con means permission. See Webster’s New Twentieth Century Dictionary Unabridged. It is the courts, i.e. the Federal Court of Appeal and the Supreme court are given the power to grant the permission to aggrieved persons to appeal in this class of cases falling outside those which are within section 213 (2) (a) of the Constitution.” (underlined mine).

It must be stated that whether an application or motion on Notice seeking for leave to appeal on ground of mixed law and fact or on facts would be granted or refused depends largely on the facts or materials presented to the court by the Applicant. Judicial discretion donated to the court under Section 233 (3) of the 1999 Constitution as amended must be exercised judicially and judiciously. Like all applications seeking leave or order of court to do something in the course of proceeding or taking steps by a litigant as required by law or procedure the Applicant must first place before the court enough or sufficient materials to enable court exercise its discretion one way or the other.
In the exercise of its discretion this court is under obligation to examine the Notice and grounds of appeal in order to discern if it raises facts or mixed law and facts without any recourse to extraneous issue or matter. More importantly to find out if the grounds of appeal are substantial and arguable and not designed as for fishing expedition.
See S. U. OJEMEN & ORS V HIS HIGHNESS WILLIAMS O. MOMODU II (THE OGIRRIJA OF IRRUA & ORSI (1983) 3 SC 173 at 206 where OBASEKI JSC said:-
“This power, in my view, when invoked, is only to be exercised in cases where the Federal Court of Appeal or the Supreme Court is satisfied that there are substantial and good grounds of appeal which involve questions of mixed law and facts of questions of facts alone that merit the consideration of the Supreme Court. The right of appeal or leave to appeal on those grounds is not to be granted just as a matter court.”
(2) B.A.S.F. NIG. LTD. V. FAITH ENTERPRESES LIMITED (2010) 1 SCM 41 at 54 per COOMASSIE JSC, who said:-
“As I had earlier pointed out, no leave was obtained before this appeal was filed, the question to be answered now is whether the three grounds of appeal in this case are grounds of law, or facts, and or of mixed law and facts? The court is required to examined thoroughly the grounds of appeal together with their particulars in order to see whether any of the grounds reveals a misunderstanding of the law by the lower court or a misapplication of the law to the facts already proved or admitted in which case it would be a question of law. Where, however, the ground is such that would require questioning the evaluation of facts by the lower court before the application of the law, they would amount to question of mixed law and fact.
Ground of appeal which raises facts which needed to be determined, either way, is a ground fact:. See this court’s decision in the following cases:-
1. Onifade V Olayiwole (1990) 7 NWLR (pt 161) 130
2. Olarewaju V Ogunleye (1997) 2 NWLR (Pt.485) 12
3. Shanu V Afribak (Nig) Plc 2 WRN 1 at 4
4. Obatoyin V Ejedike (1996) 4 SCNJ 249
The point must also be stressed here that the mere fact that an appellant describes a ground of appeal as of fact or as a ground of law would not necessarily render it to be so, the court would stilt inquire whether ground of appeal described as ground of law is actually (or in fact) a ground of law or a mixed law and fact, and/or is of fact alone. See Ejiwunmi V. Constain (W.A.) Plc (1998) 12 NWLR (PT 576) 149.”
Now the three grounds of Appeal contained in the Notice of Appeal exhibit BU2 to the Appellant/Applicant’s application are together with their particulars as follows:
“GROUNDS OF APPPEAL
GROUND ONE
The learned Justices of the Court of Appeal misdirected themselves on the facts when they found and held that the trial court having accepted that there was a delay in filing the motion to relist the said suit ought not to nave granted the application as the applicant had not given any reason whatsoever in his affidavit for the delay, and this occasioned a miscarriage of justice.
PARTICULARS OF MISDIRECTION
1. It is trite law that a court of law can in the exercise of its discretion judiciously and judicially, exercise the liberty of taking into consideration the attitude and the conduct of the parties before the Court.
2. Furthermore, in the exercise of its discretion judiciously and judicially, the court is also at liberty to take into account the circumstances of the application as well as take judicial notice of its own proceedings.
3. In the instant case, the trial court took into account the fact that the plaintiff/applicant was physically in the court but the suit had to be dismissed when his counsel showed unwillingness to proceed.
4. The trial court also observed that that was the first time the plaintiff suit came up before his court as the matter was recently transferred to their court by the Chief Judge.
5. The trial court further observed that that was the first time the plaintiff failed to proceed with its case before the said Court.
6. The trial court extracted a written undertaking from the plaintiff that he will diligently pursue his case or risk his case being thrown out again with serious consequences.
7. Arising from the foregoing is the fact that the defendant/respondent was not in any way prejudice by the decision of the trial court,
8. Indeed the said decision clearly satisfied the justice of the situation.
9. The trial judge was satisfied with the reasons advanced by the applicant in his affidavit as well as its conduct in the circumstances.
GROUND TWO
The Learned Justices of the Court of Appeal misdirected themselves in law when they found and held thus:
“The trial Court having not acted judiciously in vacating its order of dismissal and relisting the suit, its said order relisting the suit for hearing is hereby vacated”
And this occasioned a miscarriage of justice.
PARTICULARS OF TWO
1. In determining the application, the trial court is at liberty to take into consideration the peculiar facts of the application as well as take judicial notice of its proceedings.
2. An appellate court wilt not substitute its view for the exercise of the discretion of a trial court unless the exercise of the discretion is found to have been perverse.
3. The trial judge in the instant case was satisfied with the affidavit evidence taking into consideration the peculiar circumstances of the application and the proceedings which was within his knowledge.
4. The fault line identified by the Court of Appeal against the ruling of the trial judge did not take into consideration the surrounding circumstances that attended the application which the trial judge relied on in his ruling.
GROUND THREE
The Learned Justices of the Court of Appeal erred in law when they held that the finding of the trial court to the effect that the 34 days delay in filling the motion to relist the suit was not undue was perverse and this occasioned a serious miscarriage of justice.
PARTICULARS OF ERROR
l. An appellate court will not substitute its view for the exercise of the discretion of a trial court unless the exercise of the discretion is found to have been perverse.
2. It is trite law that a court of law can in the exercise of its discretion judiciously and judicially, exercise the liberty of taking into consideration the attitude and the conduct of the parties.
3. Furthermore, in the exercise of its discretion judiciously and judicially, the court is also at liberty to take into account the circumstances of the application.
4. In the instant case, the ruling of the trial court took into account the fact that the plaintiff/applicant was physically in the court but the suit had to be dismissed owing to the tardiness of his counsel.
5. The trial court also observed that that was the first time the plaintiff failed to proceed with its case before the said court as the matter was coming up before the court for the first time.
6. The trial court extracted a written undertaking from the plaintiff that he will diligently pursue his case or risk his case being thrown out again with serious Consequences.”
One must critically examine the above grounds and particulars under each of the grounds to enable me determine which of them is of facts, mixed law and facts.
Examination of the grounds of appeal is absolutely and constitutionally necessary in order to decipher if any or all the grounds raise or have to do with questions of law, mixed law and facts.
This court will not thereby be taken as sitting as appellate court over its judgment or Ruling. It is the mandate given to this court by the constitution of the Federal Republic of Nigeria 1999 as amended so as to enable the court properly, judicially and judiciously exercise its discretion whether to grant or refuse the Applicant’s Motion on Notice seeking leave to appeal on ground of mixed law and facts.
See ALHAJI ARANSI LADOKE & ORS V. ALHAJI M. OLABAYO & ORS (1992) 8 NWLR (PART 261) 605 at 625b – C. where this court in similar situation per KOLAWOLE JCA had this to say:
“In Agba V Okogbue (1988) 4 NWLR (pt.91) 747, I observed at page 753 G- H as follows:-
“It must be clearly borne in mind that a stay of execution is never granted as a matter of course because section 18 of the Court of Appeal Act, 1976, enacts that an appeal under part 2 of the Act shall not operate as a stay of execution. The grounds of appeal filed against the judgment must therefore be tested under a microscopic mirror if the application is not a ruse to delay the enjoyment of the fruits of the judgment by the respondent. In so doing, it is wrong to suggest that a court is acting as if it is hearing an appeal because it has pointed out the absurdity of a ground of appeal in considering whether it is prima facie an arguable ground.”
The criteria to be followed in carrying out the test has been laid down in numerous cases. Suffice to refer to two of them. See CHIEF DR PERE AJUMA & ANOR VS THE SHELL PETROLEUM DEVELOPMENT COMPNAY OF NIGERIA LIMITED (2011) 12 (PT.2) SCM 55 at 70 F.I. to 71 A – B where FABIYI, JSC said:-
“It has been pronounced by this court in Nwadike V Ibekwe (supra) at page 1235 that it is a recognized fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert ground of mixed law and fact in to a ground of law by christening it ‘error of law’ or misdirection in law. Grounds of appeal and particulars attending to them must be carefully read together to arrive at a decision. As carefully set out by Nnaemeka-Agu, JSC in Nwadike V Ibekwe (supra) on the point –
(a)It is on error of law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion.
O’Kelly V Trusthouse Forte Plc (1983) 3 All ER 468.
(b)Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn there from are grounds of law. Ogbechie V Onochie (supra) at 491.
(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law. Benmax v Austin Motor Co. Ltd (1945 ALL ER 326
(d)Whether a tribunal states the law in a point wrongly, it commits an error in law.
(e)Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.
(f) If a Judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law. Metal Construction (W.A.) Ltd V Migliore (supra) at page 315.
2. AUGUSTINE AKPALAKWU NJEMANZE VS JOHN SHIMOBI NJEMANZE (2013) 8 NWLR (PART 1356) 376 at 393 H TO 395 H per GALADIMA, JSC who read the leading Judgment who held:-
“This court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact.
Some of these principles can be summarized in the following manner.
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact, is a ground of fact.
(v) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the grounds is that of fact.
(vii) Where the lower court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower court or tribunal applying the law to the facts in a process which required the skill of a trained lawyer, this is a question of law.
(ix) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
(x) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issues, that conclusion is not an error in law.
(xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the court of Appeal are issues of fact and not of law.
(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of Appeal or a Further Court of Appeal).
See the case of Board of Customs and Excise V Barau (1982) 10 SC 48 and Ogbechie V. Onochie (1986) 3 SC 58 – 64; (No.1) (1986) 2 NWLR (Pt.23) 484, where this court interpreted the provisions of section 213(3) and 214(3) of the Constitution of the Federal Republic of Nigeria, in pari materia with the instant provisions of section 233(3) and 233(2) (a) of the said Constitution…
It has been further decided by this court that in determining whether a ground of appeal includes questions of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A. LTD V GMBH (1989) 3 NWLR (PT.110) 374 at 389-390.”
It is also relevant to juxtapose the relevant portions of the Affidavits evidence before this court with the grounds of appeal and their particulars as quoted herein before and in the light of the case law just cited in order to have further insight into the materials before this court to enable me take just decision in this application. Paragraphs 13-17 of the Applicant’s further and Better Affidavit sworn to by the Applicant himself are as follows:-
“3 That I initiated this action as the plaintiff at the Plateau State High Court sometime in 1994.
4. That after I had filed this suit, it went through a number Judges including Hon. Justice Felicia Dusu (deceased), Hon. Justice Oyetunde (Rtd), Hon. Justice Naron (Rtd) as well as Hon. Justice Damulak inter alia in no particular order.
5. That none of the Judges could conclude the hearing either because of death, retirement or otherwise.
6. That thereafter the matter was reassigned to Hon. Justice Sirajo, who on the first day the matter came before him dismissed same after series of exchange with my counsel in court white I was in court; as the instance of the defendant.
7. That after the proceedings, I tried to find out what happened from my counsel and he told me that the Judge was of the view that since he was not ready to proceed and had an incompetent application before him, my case was dismissed for want of diligent prosecution.
8. That aggrieved by the said decision, I instructed my counsel to file the relevant application to relist the case as I was still desirous of having my case determined on the merit.
9. That my counsel filed the said application and argued same before him.
10. That the application was granted by the Trial Judge and the matter was relisted with a view to having the matter determined on the merit.
11. That before we could commence hearing, the Respondents lodged an appeal challenging the decision of the trial court.
12. That this Honourable court heard the appeal and allowed the appeal in part on the 27th March 2013 and accordingly proceeded to set aside the ruling of the trial court relisted the matter for hearing on the merit as well as restored the earlier decision of the trial court dismissing the matter.
13. That aggrieved by the decision of this Honourable Court, I instructed my counsel to appeal against same to the Supreme Court.
14. That my Counsel Solomon Umoh SAN informed me in his office at No. 10 Beach Road Jos on the 5th Day of May, 2013 at about 5pm and I verily believe him as follows:-
(a) That the leave of this Honourable court must be obtained since the grounds of appeal in this appeal may condescend on the issues of mixed law and fact as well as facts.
15. That the grant of this application will engender the exercise of my constitutional right of appeal.
16. That the grant of this application would not prejudice the respondent in any manner whatsoever.
17. That it would better serve the interest of justice to grant this application.”
The Appellants/Respondents in response filed further and Better Counter Affidavit as stated in this matter and Mrs O. N. Adese who swore to the said Affidavit deposed in paragraphs 4 – 13 thereof as follows:-
“4. That on the 22/5/2013, the Appellants/Respondents were served with a Further and Better Affidavit.
5. That on the death of Hon. Justice Felicia Dusu, may God bless her soul, the plaintiff’s counsel by a letter of 13/7/2007 requested the Hon. Chief Judge of Plateau State to reassign the case.
6. That the case was reassigned to Hon. Justice Sirajo on the 16/7/2007.
7. That when the suit was transferred to Hon, Justice Sirajo, it took the Applicant 16 solid months to approach the trial court to fix the case for trial by a letter dated 25th November, 2008.
8. That the trial court set down the case for trial on the 8/04/2009.
9. That on the 08/04/2009, the counsel for the plaintiff was not ready for trial. The plaintiff was in court but not ready to give evidence.
10. That the applicant’s counsel sought for adjournment which the trial court refused.
11. That a request for a stand down was granted but when the court resumed, the plaintiff was in court but was not prepared to testify or call his witness if any.
12. That the trial court was of the view that the attitude of the plaintiff is a clear manifestation of either lack of interest in the case or sheer carelessness on the part of the plaintiff.
13. That I am informed by the 1st Respondent at our chambers on the 22/5/2013 at 2pm and I verily believed him;
(a) That he will be greatly prejudiced having withdrawn his counter claim.
(b) That he is now approaching 84 (eight four) years and needs time to rest and in peace.”
I have earlier on this Ruling narrated the facts of the case leading to this application as stated in the addresses of learned Senior Advocates of Nigeria for the parties which facts are in tandem with the Affidavit in support of the motion on Notice and the Counter Affidavit filed against the application by the Appellants/Respondents as just reproduced, I am of the solemn view that having thoroughly read the Notice and grounds of appeal attached as Exhibit “BU2” to the APPLICANT’S MOTION ON NOTICE I have no doubt in my mind that the said grounds of appeal involve question of law, facts and mixed law and facts. It is therefore imperative for the APPLICANT to seek and obtain leave of this court as he had done by his application under consideration. See GENERAL ELECTRIC CO. V. AKANDE & ORS (2010) (PT 2) SCM 96 AT 107 D-F 117 I.
I am not unmindful of the submission of the learned silk for the Appellants/Respondents that the application for leave to appeal must satisfy the requirements of the 2nd limb of ORDER 7 Rule 10(2) of the Rules of this court 2011 which provides:-
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard when time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”
The learned silk then argued thus:-
“The grounds of appeal must prima facie show good cause why the appeal should be heard. The applicant need to show that the grounds of appeal disclose arguable issue and not that the issues, will succeed.”
With considerable respect to the learned silk to the Appellants/Respondents the rule cited and the submissions thereon are clearly inappropriate to the terms or relief being sought by the Applicant in his Motion on Notice which seeks leave to appeal to Supreme Court of Nigeria on question of law, facts and mixed law and facts.
The argument of the Appellants/Respondent just alluded to runs counter to their earlier admission that the three proposed grounds of appeal of the Applicant are:-
“ALL QUESTIONS OF FACT OR MIXED LAW AND FACT”
See paragraph 4.01 of the Appellants/Respondents address. The further submission of learned silk in that paragraph of his address is that:-
“An appeal on issues of fact is not a matter of common right but of special provision. By the provision of Section 233(3) of the 1999 Constitution, this court is conferred with the discretion indeed a duty is foisted on it to refuse an applicant leave where the justice of the circumstances so dictates”.
I have no doubt in my mind that this court is endowed with discretion to grant the application sought.
The only inhibition or caveat is that the discretion must be exercise within the settled principles of law. It must be exercised judicially and judiciously in the interest of justice.
I am of the firm view that having regard to the Affidavits evidence and submissions of learned senior Advocates to the parties on the Motion on Notice filed by the APPLICANT and in view of three proposed grounds of appeal which raise questions of fact or mixed law and facts the dictates of justice demands that the application of the APPLICANT ought to be granted as prayed in the motion papers.
To refuse the leave sought will entail injustice against the APPLICANT.
There is really nothing in the counter Affidavit and the Further and Better counter Affidavit of the Appellants/Respondents militating against the grant of the leave sought by the APPLICANT. I cannot see any injury or prejudice the Appellants/Respondents would suffer if the application is granted as prayed.
In the result leave is hereby granted to the RESPONDENT/APPLICANT DR. BENJAMIN UGWU, to appeal against the Judgment of this court in Appeal No. CA/J/15/2010 delivered on 27th day of March, 2013 to the Supreme Court of Nigeria on grounds of mixed law and facts.
There will be no order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read before now the ruling of my learned brother PETER OLABISI IGE, J.C.A; just delivered. I entirely agree with his reasonings and conclusion contained therein. For the reasons so eloquently and comprehensively set-out, I too, find merit in the application. I do hereby also grant the leave sought by the respondent/ applicant to appeal against the judgment of this court delivered on the 27th of Mach, 2013, to the supreme court of Nigeria on grounds of mixed law and facts. I abide by the order of my learned noble Lord, IGE, J.C.A. on costs.

Appearances

SIR G. OFODILE OKAFOR, SAN with P. S. TUNGYANG ESQ and T. M. OCHIGBO ESQ.For Appellant

AND

SOLOMON UMOH SAN, with E.N. EZE ESQ., M. P. MWANSAT ESQ., E. O. OYADIJI ESQ and C. OGILI ESQ.For Respondent