AINA OSANYANBI & ORS v. OKEOWO LASISI & ORS (2019)

AINA OSANYANBI & ORS v. OKEOWO LASISI & ORS

(2019) LCN/4614(SC)

In the Supreme Court of Nigeria

Thursday, April 11, 2019


Case Number: SC.152/2006

 

JUSTICES:

OLABODE RHODES-VIVOUR

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

CHIMA CENTUS NWEZE

AMINA ADAMU AUGIE

UWANI MUSA ABBA AJI

 

APPELLANTS

AINA OSANYANBI & ORS

 

RESPONDENTS

OKEOWO LASISI & ORS

DETERMINATION OF GROUND OF LAW FROM MIXED GROUND OF LAW AND FACT

“In Utoo v APC and Ors (SC. 93/2017 delivered on April 20, 2018), this Court per Nweze, JSC] explained that: the difficulty in typologising grounds of appeal into grounds of law simpliciter and grounds of mixed law and facts has long been acknowledged in Anglo-Nigerian procedural jurisprudence. In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edinburgh etc Tramways (1919) SC (H.L) 35; also, Currie v Inland Revenue Commission (1921) 2 KB 536; Cooper v Stubbs (1925) 2 KB 277; Benmax v Austin Motors Co Ltd (1945) All ER 326; Edwards (Inspector of Taxes)v Bairstows and Anor (1955) 3 All ER 48.This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review Vol. 100 (October 1984). Although this Court confessed its difficulty in distinguishing between a ground of law from a ground of mixed law and fact, Ogbechie v Onochie [1986] 1 NWLR (pt. 70) 370 and, approvingly, adopted the above academic treatise of C. T. Emery and Professor B. Smythe in Ogbechie v Onochie at 490 – 493, per Eso, JSC, the problem still persisted and triggered off a frequency of appeals on this point, Nwadike and Ors v Ibekwe and Ors (1987) LPELR – 2087 (SC) 42- 43. Other examples include: UBA Ltd v Stahlbau Gmbh & Co [1989] 3 NWLR (pt 110) 374, 391-392; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531, 548; MDPDT v Okonkwo [2001] 3 KLR (pt.117) 739 etc. Happily however, this difficulty, notwithstanding, this Court has ingeniously fashioned out formulae for navigating through the nuances of the characterisation of grounds of appeal. The first formula aims at facilitating the ascertainment of what constitutes a ground of appeal. It comes to this: a Court has a duty to do a thorough examination of such grounds which the appellant filed. The main purpose of the examination will be to find out whether – if from the said grounds, it is evident that the lower Court misunderstood the law or whether the said Court misapplied the law to the facts which are already proved or admitted. In any of these two instances, the ground would qualify as a ground of law. On the other hand, if the ground complains of the manner in which the lower Court evaluated the facts before applying the law, the ground is of mixed law and fact. The determination of grounds of fact is much easier. Simply put, these formulae simply mean that it is the essence of the ground; the main grouse: that is, the reality of the complaint embedded in that name, that determines what any particular ground involves, Abidoye v Alawode [2001] 3 KLR (pt. 118) 917, 919; NEPA v Eze [2001] 3 NWLR (pt. 709) 606; Ezeobi v Abang [2000] 9 NWLR (pt. 672) 230; Ojukwu v Kaine [2000] 15 NWLR (pt. 691) 516. In effect, it is neither its cognomen nor its designation as ‘Error of Law’ that determines the essence of a ground of appeal, Abidoye v Alawode (supra) 927; UBA Ltdv Stahlbau Gmbh and Co [1989] (supra) 374, 377; Ojemen v Momodu [1983] 3 SC 173. it is true that this Court does not possess the jurisdiction to hear an appeal on grounds of mixed law and facts, unless leave has been sought and obtained, Uchendu v Ogboni[1999] 5 NWLR (pt 603) 337; Irhabor v Ogaiamien [1999] 8 NWLR, (Pt 616) 517; Ukpong and Anor v Commissioner for Finance and Economic Development [2006] 19 NWLR (Pt 1013) 187.”

 

FAILURE TO OBTAIN LEAVE OF COURT WHERE A GROUND OF APPEAL CONTAINS MIXED LAW AND FACT

“It is settled that the failure to obtain leave of the Court below or this Court where a ground of appeal raises questions of fact or mixed law and fact, renders the appeal grossly incompetent see Akpasubi V. Umweni (1982) 11 SC 113, wherein Eso, JSC, observed as follows -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”.

 

 

PURPOSE OF PRELIMINARY OBJECTION

“The purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a Respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Per OGUNBIYI, J.S.C in Petgas Resources Ltd V. Mbanefo (2017) LPELR-42760(SC).”

 

NATURE OF PRELIMINARY OBJECTION

“It is long settled that a Preliminary objection must be determined before the appeal is considered. The reason is simple. The purpose of a Preliminary objection is to convince the Court that the appeal is fundamentally defective. If the Preliminary objection succeeds the appeal would no longer be heard. It would be struck out. I must further observe that a Preliminary objection is only filed when its success would bring the hearing of the appeal to an end. If the respondents complain about the grounds of appeal that are bad, but there are some grounds that can sustain the appeal, a motion on Notice and not a Preliminary objection should be filed against the defective grounds of appeal. In this case the complaint is against all the grounds of appeal. A Preliminary objection is thus appropriate. See Isah v INEC (2016) 18 NWLR (Pt.1544) p.175. B.O.I. Ltd v Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (Pt.1615) p.220.”

OLABODE RHODES-VIVOUR, J.S.C. (DELIVERING THE LEADING JUDGMENT): The plaintiffs’, now Respondents sued the Defendants’, now Appellants’ before a Lagos High Court on a Writ of Summons filed on 4 October 1985 claiming: 1. The forfeiture of the Defendants tenancy in the piece or parcel of land situate lying and being at Magbon, Oreile-Agege in the Lagos State on the ground of misconduct by the defendants’ in that the defendants are challenging the title of the Plaintiffs’ (their landlords to the said piece or parcels of land). 2. Possession of the said piece or parcel of land situate lying and being at Magbon Orile Agege as shown on Plan No. AL 48/1971 dated 17 September, 1971 drawn by S.A. Alaka, Licensed Surveyor. 3.Arrears of rent from 1959 to 1984 at the rate of N1.00 (one Naira equivalent of 10/-(Ten Shillings) per annum then totalling N25.00 (twenty-five naira) Nigeria currency. Annual Rental Value: N10.00 The Defendants counter-claim against the plaintiffs’ for: 1. A Declaration that the defendants’/counter-claimants’ are entitled to the statutory Rights of Occupancy in respect of the land in dispute as confirmed by several plans including Plan No. CD.36/71 dated 28 March, 1968 and drawn by Oku Daodu, Licensed Surveyor. 2.A perpetual Injunction restraining the plaintiffs’ and their agents from committing any acts of trespass or further act of trespass on the land in dispute or any part of the Osanyanbi family land. 3. An Order dismissing the case of the plaintiffs’ in its entirety with substantial cost to be awarded in favour of the defendants’ counter-claimants’. The plaintiffs’ called four witnesses in proof of their case while the defendants’ called three witnesses. Eleven documents were admitted as exhibits. In a considered judgment delivered on 19 December 1996, Phillips J (as she then was) of a Lagos High Court entered judgment for the plaintiffs’ in these words: “I hereby grant the plaintiffs possession of all that piece or parcel of land situate, lying and being at Magbon, Orile-Agege as shown edged Red in Exhibit P.10 tendered and admitted in evidence during the trial of this suit. I also award the plaintiffs’ arrears, of rent to be paid by the defendants from 1959 1984 at the rate of N1.00 a year. The defendants counter-claim fails in its entirety and I award N2,500.00 costs to the plaintiff.”On 18 September 1997 the learned trial judge granted the defendants’ a stay of execution of the judgment pending the determination of the appeal that was filed on 5 March 1997. By Motion on Notice filed on 18 July 2005, in the Court of Appeal the plaintiffs’/Respondents sought for an Order dismissing the appeal for want of diligent prosecution. After listening to Mr. R.Olusegun Raji, learned counsel for the respondents’/applicants’ and Mr. V.O. Ogunade for the Appellants’ the Court of Appeal observed in a Ruling delivered on 15 February, 2006 that: Respondents counsel in order to facilitate the hearing of the appeal did the Compilation of the Record of Appeal. The appellants’ despite service on them of Notice to file their brief of argument by the Court of Appeal Registrar have failed to comply with the stipulated period of the sixty days allowed by the rules. There is also no indication that the appellants’ have up to date filed any such proposed brief and in respect of which a motion for enlargement of time is being sought and concluded: In the circumstance I therefore make an Order dismissing the appellants’ appeal in Appeal No. CA/L/41/05 for want of diligent prosecution. This appeal is against that Ruling. In accordance with Rules of this Court both counsel filed and exchanged briefs. Learned counsel for the appellant V.O. Ogunade Esq filed the appellants’ brief and a Reply brief on 2 August 2006, and 26 January, 2007. Learned counsel for the respondents’ filed the respondents’ brief on 9 October 2006. Learned counsel for the appellants’ formulated four issues for determination of the appeal. 1.Whether the Appeal Court was right when it did not give adequate consideration to the submission of the appellants’ that they were not served the respondents’ motion on Notice and only became aware of it some few days before it was to be heard. 2. Whether the Appeal Court was right, when it did not give adequate consideration to the submission of the appellants’, that they were lured into several meetings by the Respondents’ to explore the possibilities of amicable settlement, which they faithfully kept, while the respondents were secretly preparing the motion to dismiss the appeal. 3. Whether the Appeal Court was right, when it refused the appellants the opportunity to present their counter affidavit, to the respondents’ motion on Notice for dismissal of appeal dated 15 July, 2005. 4. Whether the Appeal Court was right when it refused the submission of the appellants to the effect that they were not served notice by the Court of Appeal Registrar to file their brief of argument. Learned counsel for the respondents’ formulated only one issue for determination. It reads: 1. Whether the appellants’ who were not willing, ready and diligent to prosecute their appeal were denied fair hearing by the learned trial justices of the Court of Appeal who heard the respondents’/appellants’ motion on Notice dated 15 July, 2005 for an order dismissing the appellants’/respondents’ Appeal for want of due and/or diligent prosecution I shall refrain from deciding now, which of the issues shall be considered in this appeal. This is because the Preliminary objection argued in the respondents’ brief appears to have substance. If it succeeds the hearing of the appeal abates. At the hearing of the appeal on 14 January, 2019 the parties were absent and unrepresented. The briefs were properly filed and served and there was proof of service of hearing Notice for the hearing of the appeal on both counsel. The appeal was deemed as argued. Learned counsel for the respondents’, Mr. O. Raji argued a Preliminary objection in his respondents’ brief. Learned counsel for the appellants’ responded in appellants’ reply brief. Learned counsel for the respondents’ relied on two Grounds of objection in support of his Preliminary objection. On Ground one he submitted that: (1) The appellants did not seek and obtain leave in respect of their grounds of appeal for effective argument of same before this Honourable Court. On Ground, two he submitted that: (2) The appellants did not notify the respondents’ or their counsel while compiling the record of Appeal to the Supreme Court thereby deducting some vital documents substantiating the respondents’ case. On (1) learned counsel for the respondents’ relied on Igwe & Ors v Kalu (2002) 2SC (Pt.1) p.93 Ogbechie v Onochie (1986) 2 NWLR (Pt.23) p.484. He submitted that learned counsel for the appellants’ failed to obtain leave before filing the five grounds of appeal which are on questions of mixed law and fact, contending that in the absence of leave the appeal should be struck out. On (2) he submitted that learned counsel for the appellants failed to avail the respondents’ counsel of some documents making up the Record of Appeal. Relying on Okafor v Onedibe (2003) 9 NWLR (Pt.825) p.399, he submitted for transparency, honesty and genuineness, both parties are to have knowledge of every document necessary for compilation of and making up the records of appeal, but that was not the case while the appellants’ compiled the Record of Appeal. He urged the Court to sustain the objection as the appeal is incompetent. On (1) learned counsel for the appellants submitted that the Supreme Court can do away with requirement for leave to appeal after the perusal of the records of proceedings when the justice of the case demands it. On (2) He argued that it is not the duty of the appellants to notify the respondents’ or their counsel while compiling the Record of Appeal but the Registrar’s who is the custodian of all official process. Reliance was placed on Orders 6 or Order 7 of the Supreme Court Rules. Adewoga v Denegan (2001) FWLR (Pt.61) p.1776. It is long settled that a Preliminary objection must be determined before the appeal is considered. The reason is simple. The purpose of a Preliminary objection is to convince the Court that the appeal is fundamentally defective. If the Preliminary objection succeeds the appeal would no longer be heard. It would be struck out. I must further observe that a Preliminary objection is only filed when its success would bring the hearing of the appeal to an end. If the respondents complain about the grounds of appeal that are bad, but there are some grounds that can sustain the appeal, a motion on Notice and not a Preliminary objection should be filed against the defective grounds of appeal. In this case the complaint is against all the grounds of appeal. A Preliminary objection is thus appropriate. See Isah v INEC (2016) 18 NWLR (Pt.1544) p.175. B.O.I. Ltd v Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (Pt.1615) p.220. Section 233(3) of the  Constitution states that: (3). Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court. Leave means permission. Where the Grounds of Appeal involve questions of law alone no leave is required, and the Supreme Court would have jurisdiction to hear such an appeal, but where the Grounds of Appeal are based on facts, or mixed law and facts the Supreme Court would have jurisdiction to hear such an appeal if and only if leave was obtained. If leave is not obtained the appeal is incompetent and liable to be struck out. See Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) p. 718 Obatoyinbo v Oshatoba (1996) 5 NWLR (Pt. 450) p. 531. Nwaolisah v Nwabufoh (2011) LPELR. 2115 In NNPC v Famfa Oil Ltd (2012) All FWLR (Pt.633-635) P. 204. I said that: “At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labelling a ground of appeal error of law, or misdirection may not necessarily be so. The application is irrelevant in determining whether a ground of appeal is of law or mixed law and fact The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.” In Ogbechie & Ors v Onochie & Ors 1986 NWLR (Pt.23) p. 484. Eso JSC adopted the explanation given by the authors of the Law Quarterly Review, Vol. 100 of October 1984 thereby providing an illuminating guide on this issue of classification of Grounds of Appeal of law, mixed law and facts or/and facts. The authors explained as follows: 1.If the tribunal purports to find that particular events occurred, although it is seised of no admissible evidence that the events did in-fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal; in other words, it is a question of fact. 2. If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law. 3.If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law. 4. If the tribunal, though correctly treating a statutory word or phrase as a legal term of act, errs in elucidation of the word or phrase, it is a question of law. 5. If the tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error of law. 6.If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunal’s conclusion may be one of the possible resolutions; Yet it may be a conclusion which the superior Court (had it been seized of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law will not intervene. In Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) P. 718, This Court further explained that: (a) It is an error in law if the adjudicating tribunal took into account, some wrong criteria in reaching its conclusion. (b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law. (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. (d) Where a tribunal states the law in 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. All that I have been saying explains in detail how to go about, or what should be considered before the distinction is made. They make the exercise clear and easier to understand. Now, the grounds of appeal filed by Mr. V.O.A. Ogunade, learned counsel for the appellant are as follows: GROUNDS OF APPEAL GROUND ONE The learned Justices’ of the Court of Appeal erred in Law when they ruled that because the appellants did not prosecute the matter diligently the appeal ought to be dismissed. PARTICULARS (a) Justice is a two-way traffic both to the plaintiff and the defendant. (b) The Motion was not served on the defendants’/appellants’ as claimed by the plaintiffs’/respondents’. (c) The defendants/appellants were only aware of the motion on Notice dated 15 July 2005 asking the Court to dismiss the appeal of the appellants for want of diligent prosecution a day before 15 February, 2006. GROUND TWO Learned Justices’ of the Court of Appeal erred in Law when they ruled that the defendants’/appellants went to sleep after filing their motion of stay. PARTICULARS (a) The defendant’s/appellants solicitor has been made to believe that they were lured into several meeting wherein the defendants’/appellants’ faithfully kept faith in the reconciliation meeting while the plaintiffs’/respondents’ were pushing the motion to dismiss the appeal secretly. GROUND THREE The learned final Justices’ misdirected themselves by not giving the defendants’/ appellants’ the opportunity to present its counter motion to the plaintiffs’/respondents’ motion on notice dated 15 July, 2005. PARTICULARS The defendants/appellants have proved that they only became aware of the motion a day before hearing the plaintiffs/respondents’ motion dated 15 July, 2005 and would need time to react and that one more adjournment will be enough. GROUND FOUR The learned Justices’ misdirected themselves in law when they refused to note defendants’/appellants’ statement to the effect that they were not served notice to file their brief of argument by the Court of Appeal Registrar. PARTICULARS The Court cannot shut out a party who has no notice of a proceeding against it. GROUND FIVE The learned Justices’ misdirected themselves in law when they allowed the issue of technicality to defeat Justice of this case. PARTICULARS The use of technicality cannot be used to defeat substantial justice. The appellant hereby gives notice that further grounds of Appeal shall be filed upon obtaining other processes filed in this suit. Applying the principles laid out above, ground 1 raises the question of not prosecuting the appeal diligently. This is a question of mixed law and fact. Ground 2 questions the delay in filing appeal. This is a question of mixed law and fact. Ground 3 raises the issue of not giving the appellant the opportunity to present its counter motion. This is a question of fact. Ground 4 raises the issue of not being served Notice to file brief of argument. This is a question of fact. Finally Ground 5 raises the issue of allowing the issue of technicality to defeat the justice of case, is a question of mixed law and fact.All the grounds of appeal are grounds of mixed law and fact or fact. They are caught by Section 233 (3) of the Constitution. Before I conclude, learned counsel for the appellant relied on Section 233(4) of the Constitution to support his argument that leave was unnecessary. It reads: (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 opinion that the interests of justice do not require an oral hearing of the application. Section 233 (3) of the Constitution is mandatory. That is to say where the grounds of appeal are of mixed law and fact, leave must be obtained while its discretionary under Section 233 (4) of the Constitution. This Court can exercise its discretion and dispense with leave where the grounds of appeal are mixed law and fact if satisfied that it is in the interest of justice. This Court and indeed all Courts are Courts of justice and Equity. They should ensure at all times that substantial justice is done between the parties. The role of Courts in this regard have been stated and repeated in a plethoric of cases. See Bello v A.G. Oyo State (1986) 12 SC p.1 Ogumbi v Kosoko (1991) 8 NWLR (Pt.210) p.511 Panache Communications Ltd v Aikhomu (1994) 2 NWLR (Pt.327) p. 425.Akilu v Fawehinmi (1989) 3 NWLR (Pt. 112) p. 643Nishizawa v Jethwani (1984) 12SC p. 235.Does the justice of this case require that this Court exercises its discretion and allow the appellant to appeal without obtaining Leave? OR is it in the interest of justice to allow the appellant to appeal without obtaining leave To answer this question the facts of this case must be laid bare. The facts are these. The respondents own a piece of land at Magbon, Orile-Agege in Lagos State. The appellants became their tenants. After sometime they challenged the title of the respondents’. So, the respondents as plaintiffs sued the appellants’/defendants for forfeiture, possession and arrears of rent. The case was initially filed in Court in 1985. In 1996 a Lagos High Court entered judgment for the respondents. All their reliefs were granted. In 1997 the appellants’ filed an appeal and obtained a stay of execution of the judgment. After obtaining a stay of execution the appellants went to sleep. So on 18 July 2005, eight years after the grant of stay of execution the respondents’ approached the Court of Appeal for an order dismissing the appeal for want of diligent prosecution. The application was granted. The appeal was dismissed. This is an appeal against that Ruling, and all the grounds of appeal are caught by Section 233 (3) of the Constitution. Is this a case where in the interest of justice this Court should exercise its discretion and allow the appellants’ to appeal as provided by Section 233 (4) of the Constitution. This is clearly not such a case. The facts reveal that the appellants’ have used the Rules of Court to their own advantage. They have frustrated the respondents’ for over thirty years by denying them the use of their land. It would amount to monumental injustice to exercise discretion in favour of the appellants’ who are not deserving of it. It is the respondents’ that deserve justice and not the appellants. This Court would never exercise discretion in favour of the appellants on these facts that cry out for justice for the respondents. The response by learned counsel for the appellants to the Preliminary objection is without substance. There would be no need to consider the second ground of the Preliminary objection. Since I have found that the five grounds of appeal are caught by Section 233 (3) of the Constitution, they are hereby struck out on the preliminary objection of learned counsel for the appellants. Preliminary objection is sustained. Appeal struck out. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: Section 233 (3) of the 1999 Constitution, as amended provides: Subject to the provisions of Subsection (2) of this section, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”. Section 233 (2) of the Constitution provides for appeals which are as of right and on issues of law alone. Any appeal which does not fall within the provisions of Section 233 (2), requires the leave of the Court of Appeal or of this Court to be valid. The requirement for leave is mandatory and a condition precedent to the exercise of the Court’s discretion to hear the appeal. Where the grounds of appeal are on facts or mixed law and facts, leave must be obtained. Failure to seek and obtain leave renders the appeal incompetent and liable to be stuck out. See: Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SC (Pt. iv); Idika Vs Erisi (1988) 5 SC (Reprint) 323; Nwaolisa Vs Nwabufoh (2011) 14 NWLR (Pt. 1268) 600. It is important to note that the mere description of a ground of appeal as being an error of law does not make it so. The Court will examine the grounds along with their particulars to determine the exact nature of the complaint See: Ojemen & Ors. Vs Momodu & Ors. (1983) LPELR 2371 (SC) @ 27-28 D-B; U.B.N. Plc Vs Sogunro (2006) 16 NWLR (Pt.1006) 504. If there is a ground of appeal which is of law alone, it is sufficient to sustain the appeal notwithstanding the fact that there are other incompetent grounds of fact or of mixed law and fact for which leave ought to have been obtained. The incompetent grounds would be struck out and the appeal determined on the ground of law alone. In the instant appeal, my learned brother, OLABODE RHODES-VIVOUR, JSC has set out in detail the grounds of appeal as contained in the appellant’s notice of appeal along with their particulars. I agree with him that all the grounds of appeal raise issues of fact or of mixed law and fact, for which the leave of this Court ought to have been sought and obtained. Indeed, in their reply brief, the appellants do not deny the fact that they failed to obtain the requisite leave. They however seek the Court’s indulgence, relying on Section 233 (4) of the Constitution to waive their non-compliance in the interest of justice. Again, I am in complete agreement with my learned brother that having regard to the antecedents of this case and the fact that the appellants have used the Court process to frustrate the respondents, who obtained judgment in their favour as far back as 1996, it would not be in the interest of justice to waive compliance with the Constitutional provision in their favour. For these and the more detailed reasons contained in the lead judgment, I hold that the appeal is incompetent. It is accordingly struck out. The preliminary objection is sustained. CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Rhodes-Vivour, JSC, delivered now. I agree with His Lordship that the preliminary objection is well-taken. In Utoo v APC and Ors (SC. 93/2017 delivered on April 20, 2018), this Court per Nweze, JSC] explained that: the difficulty in typologising grounds of appeal into grounds of law sirnpliciter and grounds of mixed law and facts has long been acknowledged in Anglo-Nigerian procedural jurisprudence. In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edinburgh etc Tramways (1919) SC (H.L) 35; also, Currie v Inland Revenue Commission (1921) 2 KB 536; Cooper v Stubbs (1925) 2 KB 277; Benmax v Austin Motors Co Ltd (1945) All ER 326; Edwards (Inspector of Taxes)v Bairstows and Anor (1955) 3 All ER 48. This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review Vol. 100 (October 1984). Although this Court confessed its difficulty in distinguishing between a ground of law from a ground of mixed law and fact, Ogbechie v Onochie [1986] 1 NWLR (pt. 70) 370 and, approvingly, adopted the above academic treatise of C. T. Emery and Professor B. Smythe in Ogbechie v Onochie at 490 – 493, per Eso, JSC, the problem still persisted and triggered off a frequency of appeals on this point, Nwadike and Ors v Ibekwe and Ors (1987) LPELR – 2087 (SC) 42- 43. Other examples include: UBA Ltd v Stahlbau Gmbh & Co [1989] 3 NWLR (pt 110) 374, 391-392; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531, 548; MDPDT v Okonkwo [2001] 3 KLR (pt.117) 739 etc. Happily however, this difficulty, notwithstanding, this Court has ingeniously fashioned out formulae for navigating through the nuances of the characterisation of grounds of appeal. The first formula aims at facilitating the ascertainment of what constitutes a ground of appeal. It comes to this: a Court has a duty to do a thorough examination of such grounds which the appellant filed. The main purpose of the examination will be to find out whether – if from the said grounds, it is evident that the lower Court misunderstood the law or whether the said Court misapplied the law to the facts which are already proved or admitted. In any of these two instances, the ground would qualify as a ground of law. On the other hand, if the ground complains of the manner in which the lower Court evaluated the facts before applying the law, the ground is of mixed law and fact. The determination of grounds of fact is much easier. Simply put, these formulae simply mean that it is the essence of the ground; the main grouse: that is, the reality of the complaint embedded in that name, that determines what any particular ground involves, Abidoye v Alawode [2001] 3 KLR (pt. 118) 917, 919; NEPA v Eze [2001] 3 NWLR (pt. 709) 606; Ezeobi v Abang [2000] 9 NWLR (pt. 672) 230; Ojukwu v Kaine [2000] 15 NWLR (pt. 691) 516. In effect, it is neither its cognomen nor its designation as ‘Error of Law’ that determines the essence of a ground of appeal, Abidoye v Alawode (supra) 927; UBA Ltdv Stahlbau Gmbh and Co [1989] (supra) 374, 377; Ojemen v Momodu [1983] 3 SC 173. it is true that this Court does not possess the jurisdiction to hear an appeal on grounds of mixed law and facts, unless leave has been sought and obtained, Uchendu v Ogboni[1999] 5 NWLR (pt 603) 337; Irhabor v Ogaiamien [1999] 8 NWLR, (Pt 616) 517; Ukpong and Anor v Commissioner for Finance and Economic Development [2006] 19 NWLR (Pt 1013) 187. As shown in the leading judgement, all the Grounds of Appeal are grounds of mixed law and facts or of facts simpliciter. Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies here. It is for these, and the more elaborate reasons in the leading judgment that I too, hereby uphold the preliminary objection and strike out this appeal. Appeal struck out. AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment just delivered by my learned brother, Rhodes-Vivour, JSC and I totally agree that this Appeal is incompetent. It is settled that the failure to obtain leave of the Court below or this Court where a ground of appeal raises questions of fact or mixed law and fact, renders the appeal grossly incompetent see Akpasubi V. Umweni (1982) 11 SC 113, wherein Eso, JSC, observed as follows -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 Certainly, it is not easy to decipher a question of law from a question of fact. But this Court has laid down guidelines in numerous cases, which set out the parameters, for navigating a way to finding answers see Board of Custom & Excise V. Barau (1982) NSCC (Vol. 13) 358, and Dairo V. Union Bank (supra), (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide: i. 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. See Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555. ii. 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 – Maigoro V. Garba (supra). iii. 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). iv. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter – Ogbechie V. Onochie. v. 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) 12 SC (Pt. 1) 164. vi. 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 O’ Kelly v. Trust house Forte P.I.C. (1983) 2 All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra) pp. 491-492. vii. 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. See Ogbechie V. Onochie(supra). viii. 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). ix. 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 with approval 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. And Metal Const. W.A. Ltd. V. Migliore (1990) 1 NWLR (Pt. 126) 299, wherein this Court per Obaseki, JSC, very aptly explained 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 before the Court. 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. In this case, there is no question that all the grounds of Appeal raise questions of fact, which has been brought to this Court without leave. So, this Court lacks jurisdiction to look into any of the questions raised. The Preliminary Objection is sustained, and the Appeal is struck out. UWANI MUSA ABBA AJI, J.S.C.: I have read the draft judgment of my learned brother, Olabode Rhodes-Vivour, JSC just delivered. I concur with his reasoning and conclusion. This appeal is against the ruling of the Court of Appeal delivered on 15/2/2006 wherein it dismissed the suit of the Appellant for want of diligent prosecution, hence the appeal to this Court. The Respondents’ lone issue for determination is apt for consideration here: Whether the Appellants who were not willing, ready and diligent to prosecute their appeal were denied fair hearing by the learned trial justices of the Court of Appeal who heard the Respondents/Appellants’ Motion on Notice dated 15 July, 2005 for an order dismissing the Appellants/Respondents’ Appeal for want of due and/or diligent prosecution A supervening and superseding issue cropped up, which has to do with the Preliminary Objection raised up by the Respondents’ learned Counsel to the competence of all the Grounds of Appeal of mixed law and facts formulated and presented by the Appellants’ learned Counsel for being incompetent having being raised without leave of Court. Thus, the issues herein will be held in abeyance until after the determination of the Preliminary Objection. It is contended that by the Appellants’ learned Counsel that the Apex Court can dispense with the requirement of leave to argue questions of law and facts in Grounds of appeal. I wonder where and how this argument or submission came from. This Court cannot stamp such a constitutional, unconditional, procedural and substantive irregularity, defect and jump up. There is no doubt that the question of determining whether a complaint in an appeal raises question of law alone or mixed law and facts is a difficult one. This Court in plethora of decided authorities laid down guidelines or guiding principles on how to determine which ground of appeal is of law alone or which one is of mixed law and facts. For instance, the test put forward by Esho JSC (as he then was of blessed memory) in the case of OGBECHIE V. ONOCHIE (1986) 2 NWLR (PT.23) 484 had given an insight on how to determine it, when the learned jurist stated thus:- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or misapplication of the law to the facts already proved or admitted, in which case, it would be question of law or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine. See also Per SANUSI, J.S.C in ALLANAH & ORS V. KPOLOKWU & ORS (2016) LPELR-40724(SC). With a microscopic scrutiny of what the Appellants’ learned Counsel has presented as his Grounds of Appeal, I boldly state that all the 5 Grounds are in the realm of mixed law and facts. Can the leave of this Court then be dispensed with contrary to Section 233(3) of the Constitution? Even in this Court, leave is required from the Appellants’ learned Counsel to raise grounds of mixed law and facts in order to arm, equip and pave the way for him to argue his appeal. This having not been done, his appeal cannot therefore be entertained. The purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a Respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Per OGUNBIYI, J.S.C in PETGAS RESOURCES LTD V. MBANEFO (2017) LPELR-42760(SC). The Appellants’ learned Counsel never cared to seek for the leave of this Honourable Court for his grounds of mixed law and facts to be argued before this Court and therefore having not done that, his appeal is incompetent to be heard and considered. The preliminary objection of the Respondents’ learned Counsel is sustained and the appeal is hereby struck out. I lean and pitch my tent with the reasoning and conclusion of my learned brother, who delivered the lead judgment

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