AFRICAN PETROLEUM PLC v. JERRY AND KOS ENTERPRISES LTD (2013)

AFRICAN PETROLEUM PLC v. JERRY AND KOS ENTERPRISES LTD

(2013)LCN/6168(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of May, 2013

CA/L/669/2011

RATIO

ISSUES FOR DETERMINATION: NATURE

PRELIMINARY OBJECTION: MEANING AND NATURE
Preliminary objection is the procedure that is used where a Respondent opposes the hearing of an appeal, and its purpose is to terminate the hearing of an appeal in limine either partially or totally – see S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157 SC and Mohammed & Anor. v. Olawunmi & Ors. (1990) 4 SCNJ 23, where Nnaemeka-Agu, JSC, said –
“By the preliminary objection, he is saying that the Suit or Motion before the Court ought not to be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its ruling, decides that the objection is not well – founded, that does not necessarily mean that the Suit or Motion before the Court must succeed. The Court is then bound to consider the Suit or Motion on its merits”.PER RITA NOSAKHARE PEMU, J.C.A.

DIFFERENCE BETWEEN PRELIMINARY OBJECTION AND ISSUES FOR DETERMINATION

In this case, the said Issue “A”, which attacks the competency of this appeal on the ground that the Appellant did not seek the leave of Court before filing it, transcends the bounds of an Issue properly so called and has entered into the realms of a preliminary objection” – see Okelue v. Medukam (2011) 2 NWLR (pt. 1230) 176, wherein this Court per Lokulo-Sodipe, JCA, further held that –
“It is settled law that there is a difference between a preliminary objection and an issue for determination. If the Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure adopted in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Respondent cannot challenge the competence of the appeal by an issue he has formulated for the determination of the appeal”.PER RITA NOSAKHARE PEMU, J.C.A.

NOTICE OF PRELIMINARY OBJECTION: WHERE AN OBJECTION IS RAISED AGAINST THE HEARING OF AN APPEAL, IT MUST BE TAKEN FIRST

But all is not lost because the Respondent filed the appropriate Notice of Preliminary Objection, and the law insists that where an objection is raised against the hearing of the appeal, it must be taken first – see Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 and Obasanjo-Bello v. F.R.N. (2011) 10 NWLR (Pt.1256) 605, wherein Galinje, JCA, clearly stated –
“Any objection to the competence of an appeal is a preliminary issue, which has to be determined timeously as it touches on the competence of the Court of Appeal to adjudicate on the appeal. In other words, when a preliminary objection is raised in an appeal, it must be resolved first before proceeding to determine the appeal”.PER RITA NOSAKHARE PEMU, J.C.A.

JUDGMENT: DIFFERENCE BETWEEN A FINAL AND INTERLOCUTORY JUDGMENT

WHETHER A DECISION TO SET ASIDE A DEFAULT JUDGMENT IS INTERLOCUTORY IN NATURE
Applying these principles to the question before us, I will not hesitate to say that the refusal to set aside the default Judgment is an interlocutory decision, and I have authorities to back this up – see the case of Dahuwa v. Adeniran (1986) 4 NWLR (pt.34) 264 at 269, where Nnaemeka-Agu, JCA (as he then was) relied on the opinion of the Supreme Court in two decided cases – Ojora & Ors. v. Odunsi (1964) NMLR 12 SC and Omonuwa v. Oshodin (supra), to hold thus –
“Applying the principles of these two cases to the present appeal, it appears clear to me that an appeal against the order of the 3rd December 1984, refusing to set aside the four-year old judgment in the case is interlocutory”. The next important question is whether the Grounds of Appeal are grounds of mixed law and fact, which require leave. PER RITA NOSAKHARE PEMU, J.C.A.

GROUNDS OF APPEAL: NATURE

It is settled that Ground(s) of Appeal is the totality of the reasons why the decision complained against is considered wrong by the Appellant – see Ehinlanwo v. Oke (2008) 6 – 7 SC. (Pt.II) 123, and FMBN v. NDIC (1999) 2 NWLR (Pt.591) 333 SC, where the Supreme Court held –
“A Ground of appeal (consists) of error of law or fact alleged by an Appellant as the defect in the Judgment appealed against and relied upon to set it aside”.
It is not easy to distinguish a ground of law from a ground of fact or mixed law and fact, however, we are enjoined to examine the Grounds thoroughly to see whether it reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it will be a question of law; or one that will require questioning the evaluation of facts before the application of law, in which case it will amount to a question of mixed law and fact – see Ononuju v. A.G. Anambra State (2009) 10 NWLR (Pt. 1148) 182 and Ogbechi v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491 SC.PER RITA NOSAKHARE PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead Judgment just delivered by my brother Amina Adamu Augie, J.C.A. I agree with her opinion and conclusion.
The law is elementary, constitutionally and decidedly, that to appeal against a decision on the grounds of mixed law and fact, leave of Court is required.
Therefore, failure to seek and obtain such leave is detrimental to the Appellant. Sections 242(1) of the Constitution of the Federal Republic of Nigeria is instructive.
The Preliminary objection raised by the Respondent is consequently upheld, thereby necessitating the striking out of the appeal. It is hereby struck out.
I also subscribe to the consequential order made as to costs.

FATIMA OMORO AKINBAMI, J.C.A.: This is an appeal against the judgment entered in default of appearance against the appellant.
I have had the privilege of reading in advance the judgment of my learned brother AUGIE, JCA.
It is settled principle of law that issues for determination, which is normally raised from Grounds of Appeal, is a question, usually a proposition of law or of facts in dispute between the parties, necessary for determination by the law and the determination of which will usually affect the result of the appeal, and that its purpose is to enable the parties narrow the Issues, in the Grounds of Appeal filed in the interest of accuracy, clarity and brevity.
“Any objection to the competency of an appeal is a preliminary issue which has to be determined timeously as it touches on the competency of the Court of Appeal to adjudicate on the appeal. In other words, when a preliminary objection is raised in an appeal, it must be resolved first before proceeding to determine the appeal.”
In this appeal, the appellant contends that the appeal is incompetent because it is based on a ground of appeal that is of mixed law and facts and the appellant needed leave of the lower court or this court to the same in accordance with Section 242 (1) of the 1999 Constitution. The crux of this appeal centres on one ground of appeal which is the validity of the service of court processes on the appellant.
The issues for determination in this appeal have all been well elucidated in the erudite judgment of my learned brother A. AUGIE, J.C.A. I have nothing to add.
I also uphold the respondents’ preliminary objection and strike out the appeal. I also make no order as to costs.

Appearances

C. V. C. Ihekweazu, Esq. with A. C. Eze, Esq. and I. A. Onyebuchi, Esq. For Appellant

AND

Chris Mbajika, Esq. For Respondent

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

AFRICAN PETROLEUM PLC – Appellant(s)

AND

JERRY AND KOS ENTERPRISES LTD – Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This appeal is against the refusal of the Lagos State High Court to set aside the Judgment entered in default of appearance against the Appellant on 1/2/2010. The Respondent had, by a Writ of Summons dated 28/5/2009, instituted an action against the Appellant at the High Court Badagry, wherein it sought for –
a. A Declaration that the 1st Defendant’s right to possession of the Claimant’s property at KLM 52, Badagry Expressway, Ibereko, Badagry Lagos State expires by effluxion of time on the 18th of August, 2006
b. An Order directing the 1st & 2nd Defendants to vacate forthwith the Claimant’s property at KLM 52, Badagry Expressway, Ibereko, Badagry, Lagos State
c. The sum of N30,000.00 only per month as mense profit and/or for use and occupation of Claimant’s property at KLM 52, Badagry Expressway, Ibereko, Badagry, Lagos State from September 2006 until possession is given up.
Apparently, the Appellant was served with all the relevant processes, and at the expiration of time allowed for it to enter appearance, the Respondent filed an Application dated 12/11/2009 praying for an – “Order entering final Judgment for the Claimant against the 1st Defendant in default of appearance, and in default of pleadings”; it averred as follows in the supporting Affidavit –
4. That the writ of Summons, Statement of Claim and all the other originating processes of this Suit was duly served on the 1st Defendant on or, about the 18th day of June 2009 by the Sherriff of this Court.
The Affidavit of Service in the lower Court’s file showed that it was served on the Appellant on 19/5/2009, and “satisfied that the Application was served on the 1st Defendant but that it had chosen to ignore the process as well as the Court”, the lower Court entered Judgment against the Appellant on 1/2/2010. Upon notice of the default Judgment, the Appellant filed an Application dated 11/2/2010 for an order setting aside the Judgment on the following Grounds –
1. That no proper service of the originating processes in this Suit was effected on the 1st Defendant/Applicant.
2. That no proper service of the Motion on Notice for Judgment, was effected before Judgment was obtained by the Claimant.
3. That under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 the 1st Defendant/Applicant is entitled to be heard before a decision is given against it.
4. That the condition precedent to the exercise of the jurisdiction of the Hon. Court was lacking before Judgment was obtained.
5. That the affidavit of Service in this Suit is defective and does not comply with the mandatory requirements of the law and therefore incompetent
6. The Judgment of this Hon. Court was improperly obtained.
7. Proper parties are not before the Court.
8. The Judgment in this suit is a nullity.
In opposing the Application, the Respondent filed an 11-paragraph Counter-Affidavit to that effect; it averred as follows in paragraphs 5 to 10 thereof –
5. That the 1st Defendant was duly served the originating processes, as well as the Motion on Notice for Judgment.
6. That the Hon. Court was satisfied that the processes were served and the proof of service was before the Court before Judgment was entered against the 1st Defendant in default of appearance and in the default of pleading.
7. That I was informed by Chris Mbajika, Esq. – and I verily believed him that 1st defendant’s Motion is an abuse of process of this Court as the 1st defendant did not challenge the service of processes – in the way and manner required by law.
8. That I was informed by Chris Mbajika, Esq. – and I verily believed him that the Judgment of this Court in this case is final and may only be set aside on ground of fraud, non-service or lack of jurisdiction.
9. That 1st defendant has not shown any credible ground to set aside the Judgment on the grounds of fraud, non-service or lack of jurisdiction
10. That it is in the interest of justice to dismiss the 1st Defendant is prayer in his motion as the 1st defendant was duly served in the in the way and manner required by law.
Parties filed and adopted their respective Written Addresses, and in his Ruling delivered on 24/5/2011, the learned trial Judge, E. A. Adebajo, J., held that –
“There is no reason – for the setting aside of the judgment of this Court delivered on 1/2/2010 and the order sought to that effect is refused- “.
Dissatisfied, the Appellant has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and in line with the Rules of this Court, the Appellant distilled 3 Issues for determination from the Grounds of Appeal in its Brief of Argument settled by Chimezie Victor Ihekweazu, Esq. Namely –
A. Whether the refusal of the lower Court to set aside its Judgment can be sustained considering the law, the nature of the Respondent claim, the circumstance and the fact that the lower Court had no jurisdiction to entertain the Respondents’ suit against the Appellant or to grant the Defendant Judgment in favour of the Respondent,
B. Whether considering the law and the material evidence before the lower Court, the decision of the lower Court dated the 24th day May 2011, does not amount to a denial of the Appellants’ right to fair hearing before the lower Court.
C. Whether considering the law and the circumstances of this case, the lower Court did not occasion a miscarriage of justice against the Appellant when it held that there has been a proper service of the Court processes on the Appellant, and that there is no reason therefore for the setting aside of the Judgment of the Court entered in favour of the Respondent on 1st February, 2010.
On its part, the Respondent filed a “Respondent’s Brief of Argument/ Notice of Preliminary Objection” settled by Chris Mbajika, Esq., wherein it submitted that “there are two Issues for Determination” in this appeal. The 2 Issues are –
A. Whether this appeal is competent having regard to the failure of the Appellant to obtain the leave of the Court below or this Hon. Court on of Appeal, which are either of facts alone or of mixed law and fact in with Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999.
B. Whether the trial Judge was right in holding that there was service of the Court processes on the Appellant and refusing to set aside Judgment against the Appellant.
There are two strikes against the Respondent’s Issue “A”. It is NOT related to the Grounds of Appeal or the decision appealed against, and there is a marked difference between a “preliminary objection” and “issue for determination”. To start with, there is no law against a Respondent looking at the complaints in the Grounds of Appeal from his perspective or perception of what the Issues for determination are, however, a Respondent who has not filed a cross-appeal or a Respondent’s notice has no right to formulate issues outside the ground(s) of appeal filed – see Shettima v. Goni (2011) 18 NWLR (Pt.1279) 413 SC.

It is also settled that Issue(s) for Determination, which is normally raised from Ground(s) of Appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the Court and the determination of which will usually affect the result of the appeal; and that its purpose is to enable the parties narrow the Issues in the Grounds of Appeal filed in the interest of accuracy, clarity and brevity – See Ogbuayinya & Ors v. Okudo & Ors (No.2) (1990) 8 NWLR (pt. 146) 55. Just as Statement(s) of Claim supersedes Writ(s) of Summons, Issues for Determination, where formulated, also displace the Grounds of Appeal. In other words, the Grounds of Appeal must give way to the Issues for Determination – see Iyere v. Bendel Feed 1 (2001) 7 NWLR (pt.711) 76, Ogun v. Asemah (2002) 4 NWLR (pt.756) 208 & Trustees P.A.W. Inc. v. Trustees A.A.C.C. (2002) 15 NWLR (Pt.790) 424.
In this case, the Respondent’s Issue “A” raises a question of whether the appeal to this Court against the Ruling of the lower Court is competent as the Appellant failed to obtain the leave of the lower Court or this Court to appeal on Grounds of Appeal, which are either of facts alone or of mixed law and fact. This question challenges the competency of the appeal itself, and has nothing whatsoever to do with the Appellant’s complaints in the Grounds of Appeal. Obviously, the said Issue “A” relates to the Respondent’s preliminary objection, which is a different kettle of fish. Preliminary objection is the procedure that is used where a Respondent opposes the hearing of an appeal, and its purpose is to terminate the hearing of an appeal in limine either partially or totally – see S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157 SC and Mohammed & Anor. v. Olawunmi & Ors. (1990) 4 SCNJ 23, where Nnaemeka-Agu, JSC, said –
“By the preliminary objection, he is saying that the Suit or Motion before the Court ought not to be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its ruling, decides that the objection is not well – founded, that does not necessarily mean that the Suit or Motion before the Court must succeed. The Court is then bound to consider the Suit or Motion on its merits”.

It was wrong of the Respondent to formulate the said Issue, which challenges the competency of this appeal. But all is not lost because the Respondent filed the appropriate Notice of Preliminary Objection, and the law insists that where an objection is raised against the hearing of the appeal, it must be taken first – see Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 and Obasanjo-Bello v. F.R.N. (2011) 10 NWLR (Pt.1256) 605, wherein Galinje, JCA, clearly stated –
“Any objection to the competence of an appeal is a preliminary issue, which has to be determined timeously as it touches on the competence of the Court of Appeal to adjudicate on the appeal. In other words, when a preliminary objection is raised in an appeal, it must be resolved first before proceeding to determine the appeal”.
In this case, the Appellant contends that the appeal is incompetent because it is based on a ground of appeal that is of mixed law and fact, land the Appellant needed leave of the lower Court or this Court to file same in accordance with Section 242(1) of the 1999 Constitution, which clearly provides as follows –
“Subject to the provisions of section 247 of this constitution, an appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or the High Court or the Court of Appeal”
It referred us to the position of the law, and the following cases – Ukpong v. CFED (2007) 1 MJSC 8, Ifeajuna v. Ifeajuna (1999) (NWLR) (pt. 589) 492, Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16, Thor Ltd. v. FCMB (2002) 4 MJSC 179, Dairo v. UBN Plc. (2007) 11 MJSC 74, Oshinowo v. Oshinowo (2005) All FWLR (Pt. 281) 1698, Olarenwaju v. COP (2002) FWLR (Pt.92) 1697.
It was argued that all the Grounds of Appeal center on one ground, which is the validity of the service of Court processes on the Appellant, and if this Court also holds that the Appellant was duly served, all the other Grounds of Appeal are of no moment that the question of service of process is a matter of mixed law and fact, and so, the Appellant needed leave to raise the issue; and that the complaint about evaluation of evidence before application of the law is also a ground of mixed law and facts. It was further submitted that –
“The trial Court had made a finding of fact drawn from the evidence of affidavit of service and the endorsement as to the person that received the processes, the place the processes where served, the position of the Mary Edu as an employee of the Appellant to receive Court processes. There is also the fact found by the trial Court that the Writ of Summons as well as the Motion for Judgment was dropped at the registered office of the Appellant. It was after the trial Judge evaluated the facts that he applied the law that there was proper service of the processes on the Appellant. This appellate Court cannot resolve the grounds of appeal without evaluating the facts of service of the court processes as presented at the trial court. The Appellant – needs the leave of the Court below of this Hon. Court failing which this appeal is incompetent and liable to he struck out as the appellant never obtained the requisite leave -see Okwuagbala v. Ikwueme (2010) 11 – 12 MJSC p. 177”.
The Appellant argued in its Reply Brief that the above submission is erroneous and gross misconceived as it is premised on the wrong assumption that the decision being challenged is an interlocutory decision to which Section 242 (1) of the 1999 Constitution applies; that the appellate jurisdiction is statutory as it is usually conferred on a Court by the Constitution, citing Ikeakwu & Ors v. Nwankpa (1967) NMLR 224; that it does not need leave to appeal against a final decision of the lower Court sitting at first instance in a civil proceeding, so, this Court has questionable jurisdiction to hear this appeal; that the right of appeal given under Section 242 (1) (a) of the Constitution is a general right of appeal, which means it is a right of appeal as of right, whether the appeal is on a question of law or fact or of mixed law and fact, citing AMORC v. Awoniyi (1994) (7 – 8) SCNJ 39; and that a Judgment is deemed final when the matter will not be brought back to Court, citing Ebokam v. Ekwenibe (1999) 7 SCNJ 77.
It was further argued that the decision being appealed against is a final decision in that it completely and finally disposed of its Application to set aside the default Judgment obtained by the Respondent, and it no longer had the right or option of going back to the lower Court in respect of the said decision, so the only option left was to appeal against the said decision, citing DPP v. Chike Obi (1961) All NLR 458, Ifediora v. Ume (1988) 2 NWLR 5 Okafor v. Ezenwa (1992) 4 NWLR (Pt. 237) 611. We were urged to rule in its favour.
Going through the Record of Appeal, it is quite clear that there are two completely different decisions of the lower Court, which parties appear to have mixed up in proffering arguments for and against their respective positions – there is the decision of the lower Court regarding the default Judgment, and there is the decision of the lower Court refusing to set aside the said Judgment. There is only one Notice of Appeal in the Record, and the 1st paragraph says –
“TAKE NOTICE that the Appellant being dissatisfied with the decision of the High Court of Lagos State sitting in Lagos, contained in the Ruling of Hon. Justice E. A. ADEBAJO dated the 24th day of May, 2011 doth hereby appeal to the Court of Appeal on the grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4”.
The Appellant also stated as follows in paragraph 1.01 at page 3 of its Brief –
“This is an Appeal against the decision of the High Court of Lagos State sitting in Lagos, contained in the Ruling of Hon. Justice E. A. ADEBAJO dated the 24th day of May, 2011 wherein the Lower Court refused to set aside its judgment dated the 1st February, 2010 against the Appellant and dismissed the Appellant’s Application to set aside the Judgment; holding that there was proper service of the processes on the Appellant prior to the entering of the default Judgment in favour of the Respondent and without considering the Appellant’s proposed defence”.
No question; the Appellant only appealed against the lower Court’s decision in its Ruling delivered on 24/5/2011, and not against the default Judgment itself. By Order 20 rule 12 of the Lagos State High Court (Civil Procedure) Rules, 2004, “any Judgment by default whether under this Order or under order of these Rules shall be FINAL and remain valid and may only be set aside upon application to a Judge on grounds of non-service or lack of jurisdiction”.
So, the default Judgment is a final decision, which does not need leave, but this appeal is against the lower Court’s refusal to set aside the Judgment, and the question is whether it is a final decision, which does not require leave, or an interlocutory decision that requires leave of Court to sustain this appeal.

The words “interlocutory” or “final” are not clearly defined in any law, Rules of Court or the Constitution, which only defines the word “decision” as –
“in relation to a Court, any determination of that Court, and includes Judgment, decree, order conviction, sentence or recommendation”.

The interpretation given by the Supreme Court, in several of its decisions, is that where the order, decision or Judgment finally and completely determines the rights of the parties in the case, it is a final decision. However, where the order, decision or Judgment does not finally and completely determine the rights of the parties submitted for determination by the Court, it is an interlocutory decision only.
In other words, the determining factor is not whether the court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the court. – see Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113 SC, Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 SC, Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273 SC, Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 SC and Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148 at 165 where Karibi-Whyte, JSC, stated the position of the law, as follows –
“A final order or Judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from on interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order – see Toun Adeyemi v. Theophilus Awobokun (1968) 2 All NLR 318.”
Applying these principles to the question before us, I will not hesitate to say that the refusal to set aside the default Judgment is an interlocutory decision, and I have authorities to back this up – see the case of Dahuwa v. Adeniran (1986) 4 NWLR (pt.34) 264 at 269, where Nnaemeka-Agu, JCA (as he then was) relied on the opinion of the Supreme Court in two decided cases – Ojora & Ors. v. Odunsi (1964) NMLR 12 SC and Omonuwa v. Oshodin (supra), to hold thus –
“Applying the principles of these two cases to the present appeal, it appears clear to me that an appeal against the order of the 3rd December 1984, refusing to set aside the four-year old judgment in the case is interlocutory”. The next important question is whether the Grounds of Appeal are grounds of mixed law and fact, which require leave. It is settled that Ground(s) of Appeal is the totality of the reasons why the decision complained against is considered wrong by the Appellant – see Ehinlanwo v. Oke (2008) 6 – 7 SC. (Pt.II) 123, and FMBN v. NDIC (1999) 2 NWLR (Pt.591) 333 SC, where the Supreme Court held –
“A Ground of appeal (consists) of error of law or fact alleged by an Appellant as the defect in the Judgment appealed against and relied upon to set it aside”.
It is not easy to distinguish a ground of law from a ground of fact or mixed law and fact, however, we are enjoined to examine the Grounds thoroughly to see whether it reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it will be a question of law; or one that will require questioning the evaluation of facts before the application of law, in which case it will amount to a question of mixed law and fact – see Ononuju v. A.G. Anambra State (2009) 10 NWLR (Pt. 1148) 182 and Ogbechi v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491 SC.
In this case, the Appellant complained as follows in its Grounds of Appeal –
1. The learned trial Judge erred in law when he refused to set aside its Judgment dated the 1st February, 2010 against the Appellant at the Lower Court and thereby occasioned a miscarriage of justice against the Appellant. PARTICULARS
(a) The Appellant satisfied all required condition necessary to set aside the judgment of the Lower Court dated 1st February, 2010.
(b) The justice of the case titled strongly in favour of the Appellant and for an order setting aside the judgment of the Lower Court dated 1st February, 2010.
2. The learned trial Judge erred in law when he dismissed the Appellant’s Application holding that there was proper service of the processes on the Appellant prior to the entering of the default judgment in favour of the Respondent and thereby denied the Appellant their hearing before the Lower Court.
PARTICULARS
(a) The alleged service of the Writ of Summons, Statement of Claim with other frontloaded documents and Motion on Notice for Judgment in default of appearance and pleading was purportedly effected on a person said to be with designation “secretary” and without a stated place and mode of service in the Affidavit of service for such service.
b) The Appellant was, until the default judgment, never aware of the suit instituted against it at the Lower Court by the Respondent and the purported service of the Originating Processes as claimed was improper and purportedly effected in a manner not satisfactory in Law.
3. The Learned Trial Judge misdirected himself in Law and occasioned a miscarriage of justice against the Appellant when he held inter alia at the Lower Court:
“That there has been o proper service of the Court process on the 1st Defendant. There is no reason therefore for the setting aside of the Judgment of this Court delivered on 1st February, 2010 and the order sought to that effect is refused”
PARTICULARS
(a) On the Affidavit evidence before the Honourable Court it is evident that no service of the Respondent’s Motion for judgment on the bases of which judgment was given effected on the Appellant as required by Law.
(b) The purported Affidavit of service of the said Motion for judgment did not disclose the mode and place of service as required by Law.
(c) It is the law that a proper Affidavit of service must show proof of due personal service as – and must state the fact, place, mode and of service.
4. The decision of the Lower court is against the weight of evidence.
When an Appellant complains that “the decision of the lower Court is against the weight of evidence, what he means is that when his evidence is balanced against that of the Respondent, the Judgment given is a against the weight, which should have been given to the totality of the evidence. In other words, an appeal against weight of evidence is basically on facts – see Agbamu v. Ofili (2004) 5 NWLR (Pt. 876) 540. There is also no question that the other Grounds of Appeal call for an examination of Affidavit evidence before the lower Court, and so, they are grounds of mixed law and fact, which require leave to appeal, as they arise from an interlocutory decision – see Dahuwa v. Adeniran (supra). The Appellant is not denying the fact that it did not seek the necessary leave.
What is the effect of its failure to obtain leave to appeal on this appeal? The answer is clear and unequivocal; 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 from the lower Court or this Court – see Irhabor v. Ogaiamien (1999) 8 NWLR (Pt. 616) 517 SC, Uchendu v. Ogboni (1999) 5 NWLR (Pt. 503) 337 SC and Akpasubi v. Umweni (1982) 11 SC 113, where Eso, JSC, stated assertively –
“No leave was given to the Appellant either by the Federal Court of Appeal or this Court to file a ground of fact. 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 question of fact lies to this Court without such leave. In other words, where as it would appear to me in this case, question of fact has been brought before this Court without leave, the Court has no jurisdiction”.
See also Ukpong & Anor. v. Comm. For Finance and Economic Development (supra), also (2006) 19 NWLR (Pt. 1013) 187, where Onnoghen, JSC, held that –
“Where an appeal is to be with leave but none was obtained, the condition precedent to the validity of such an appeal has not been and as a result the appeal is, in law said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain some”.
The Appellant was free to appeal against both decisions as the law allows it to appeal against an interlocutory decision in an appeal against a final decision – see Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt. 1234) 357 SC and Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 SC, but it chose not to do so, and appealed against the interlocutory decision on grounds of mixed law and fact, which requires leave of the lower Court or this Court. It did not obtain leave, and in consequence thereof, the Respondent’s preliminary objection is upheld, and the appeal is struck out. There will be no order as to costs.