AJI v. LAWAN
(2020)LCN/14630(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, September 10, 2020
CA/G/425/2019
RATIO
PLEADINGS: LEAVE OF APPEAL WHERE THE GROUNDS OF APPEAL INVOLVE MIX LAW AND FACT.
Indeed, the law is certain that by virtue of Section 14(1) of the Court of Appeal Act, 2004, an Appellant is required to seek the leave of Court to appeal against the interlocutory decisions of a lower Court. Nonetheless, by Section 241(1) (b) of the Constitution (supra), where such an interlocutory appeal raises only an issue of law, the appeal is as of right and no leave of Court is required. “The learned trial Judge had delved into the substance of the case at interlocutory level by pronouncing on publication which is an essential element of defamation.”
For ease of reference, the relevant provisions of the Constitution provide inter alia as follows:
“241. – (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases -(a) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;…
242. – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” (Emphasis supplied)
In interpreting these provisions, the Supreme Court in the case of Dairo V UBN Plc (2007) All FWLR (Pt. 392) 1846 per Mohammed, JSC, held inter alia thus:
“…I would like to have a cursory look at the criteria set out by a long list of decided cases on how to distinguish a ground of appeal based on law alone; on facts and mixed law and fact the following principles may serve as a guide:
i. …
ii. A ground of law which challenges the findings of fact made by the trial Court or involves issue of law and fact is a ground of mixed law and fact. See Maigoro V Garba (supra).
iii. Whether 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)…” Per JUMMAI HANNATU SANKEY, J.C.A.
I want to point out that, a ground of appeal which challenges the findings of fact made by the trial Court or involves issue of law and fact is a ground of mixed law and fact. See the case of Dairo vs. UBN Plc (2007) All FWLR (Pt. 392) 1846. It is not in doubt that Ground two raises an issue of mixed law and fact. The complaint therein is that the finding of the lower Court that copying the letter written by the Appellant which was addressed to the President of Nigeria and other persons including the Governor of Borno State, the Attorney-General of Borno State, the Inspector General of Police and the Director-General of the State Security Services; as well as the Press Conference amounted to Publication.
The determination of the question whether the appellant required prior leave to appeal revolves round the provisions of Sections 241(1)(a) and (b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). For ease of reference, the said Sections are hereunder reproduced:
“241. – (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(c) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance; (d) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;…
243. – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
This appeal is against an interlocutory decision of the lower Court, and therefore comes within the purview of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This provision mandates the appellant to seek leave since his appeal is not against a final decision of the lower Court which would have attracted the application of Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Per JAMES GAMBO ABUNDAGA, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
MOHAMMED ABBA AJI APPELANT(S)
And
HON. KAKA SHEHU LAWAN RESPONDENT(S)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Justice, Bornu State delivered in Suit No. BOHC/MG/CV/11/2019 on September 16, 2019 by Umaru, J.
The facts leading to the Appeal are briefly as follows: The Appellant was a Senatorial candidate representing Bornu Central Senatorial Zone on the platform of the Peoples Democratic Party (PDP) in the 2019 general election.
As a result of an incident involving the destruction of billboards and posters of PDP candidates, as well as the desecration of PDP flags in the entire State and in Maiduguri in particular, the members of the PDP called a Press Conference at the PDP National Headquarters in Abuja on November 28, 2018. The press statement was read by the Appellant on behalf of the PDP Bornu State Chapter.
The Appellant contends that after the Press Conference, the Respondent sent him a message threatening his life. Based on this alleged threat to life, the Appellant wrote a letter/petition to the President and Commander-in-Chief of the Federal Republic of Nigeria seeking for protection. He copied the letter to the heads of the
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following Security Agencies, to wit: The Nigerian Police, Department of State Services, the Nigeria Security and Civil Defence Corporation and the Human Rights Commission. In addition, the letters were referred to the Bornu State Commands of these Agencies.
As a result of the transmission of the letters, the Respondent was invited for interrogation and he made statements in defence of the allegations made against the Respondent by the Appellant. Therefore the Respondent, aggrieved by the actions of the Appellant instituted an action against him before the Bornu State High Court for defamation and he sought the following reliefs:
1. A Declaration that the petition of the Defendant titled “Threat to assassinate me” addressed and submitted to the President of the Federal Republic of Nigeria and copies (sic) to the Nigeria Police, Department of State Services (DSS), Nigerian Civil Defence and Security Corps and National Human Rights Commission (NHRC) is defamatory against the Claimant/Respondent as it constitutes innuendo.
2. A Declaration that the Defendant is an incurable pathological liar in respect of the facts in his publication
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title (sic) “Threat to assassinate me.”
3. The sum of One Billion Naira (N1,000,000,000.00k) as damages against the Defendants for writing, printing and/or publication or causing to be written, printed and published concerning the claimant falsely and maliciously a petition titled “Threat to assassinate me.”
4. An Order for retraction by the Defendant of the petition titled “Threat to assassinate me” submitted to the Federal Government in December, 2017.
5. Public apology by the Defendants to the Claimant in two (2) print and two electronic media platforms which enjoy wider circulation in Nigeria.
6. An Order of perpetual injunction restraining the Defendant whether by self, his agents, his privies or assigns from further making such false and maliciously written, printed and/or published defamatory statement against the Claimant.”
At the lower Court, the Appellant filed a Notice of preliminary objection against the suit of the Plaintiff now Respondent, that the lower Court had no jurisdiction to entertain the suit as the cause of action arose outside the jurisdiction of the Court and that the
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he resides principally within the Federal Capital Territory Abuja.
Upon taking arguments from the parties which were mainly centred on the issue of territorial jurisdiction, the learned trial Judge overruled the objection. Dissatisfied with the Ruling, the Appellant filed an Appeal vide his Notice of Appeal on October 7, 2019, wherein, he complained on two (2) grounds.
At the hearing of the Appeal on July 20, 2020, learned Counsel for the Respondent, S.A. Onimisi Esq., holding the brief of A.A. Alfa Esq., raised and argued a Notice of preliminary objection to the hearing of the Appeal which objection was incorporated in the Respondent’s Brief of argument (pages 3 to 7 thereof) filed on 25-02-20 and settled by A.A. Alfa Esq. Learned Counsel adopted the arguments therein in urging the Court to dismiss the Appeal on the ground that it was incompetent.
In response, learned Counsel for the Appellant, A.I. Bello Esq., adopted the arguments contained at pages 2 to 9 of the Appellant’s Reply Brief of argument filed on 08-07-20 (deemed filed on 20-07-20) and settled by A.R. Abdulsalam Esq., as his response to the preliminary objection and
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urged the Court to dismiss the objection.
Thereafter, the substantive Appeal was argued. Mr. Bello, learned Counsel for the Appellant adopted the arguments in the Appellant’s Brief of argument as well as the Appellant’s Reply Brief of argument filed on 31-01-20 (deemed filed on 03-02-20) and 08-07-20 (deemed filed on 20-07-20) both settled by A.A. Alfa Esq., in urging the Court to allow the Appeal. In turn, Mr. Onimisi adopted the arguments contained at pages 6-11 of the Respondent’s Brief of argument filed on 25-06-20 and settled by A.R. Abdulsalam Esq., in urging the Court to dismiss the Appeal for incompetence and for lacking in merit.
The Appellant in his Brief of argument formulated the following two issues for the determination of the Court:
1. “Whether the lower Court had jurisdiction to entertain Suit No: BOHC/MG/CV/11/19, the cause of action having not arose in Bornu State and the Appellant resides in Federal Capital Territory Abuja.
2. Whether the learned trial Judge had not delved into the substantive issue of examining Exhibits thereby pronounced on the principal element of defamation (i.e. publication)
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at the interlocutory stage.”
On his part, the Respondent distilled one sole issue for determination as follows:
1) “Whether the lower Court has jurisdiction to entertain Suit No. BOHC/MG/CV/11/19.”
The two sets of issues are substantially the same in content. I will however, re-phrase the issue arising for determination as gleaned from the two grounds of Appeal as follows, this Court being in the nature of a reviewing Court:
Whether the lower Court was right when it held that it had jurisdiction to entertain the suit, thereby overruling the preliminary objection raised to its jurisdiction.
However before then, it is imperative to address the preliminary objection raised by the Respondent to the hearing of the Appeal.
PRELIMINARY OBJECTION
The grounds for the objection (as stated by the Respondent at page 3 of his Brief of argument) are as follows –
“Ground I
The Appeal is incompetent as no leave of either the lower Court or this Honourable Court was sought and obtained before the Appeal was filed.
Particulars
1. The Appeal is an interlocutory Appeal.
2. No leave was sought
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before the Appeal was filed.
3. Leave is mandatory for a valid interlocutory Appeal.
Ground II
The Appeal is incompetent on the ground that no leave to argue mixed law and facts was sought and obtained.
1. The Appeal borders on mixed law and facts.
2. Leave is necessary to argue mixed law and facts.
3. No leave was sought and obtained by the Appellant.”
Based on these grounds, the Respondent distilled one issue to determine the objection thus:
Whether the Notice and Grounds of Appeal and the arguments canvassed in the Appellant’s Brief of argument are competent in the absence of leave of this Honourable Court.
Both grounds of objection were argued together.
Learned Counsel for the Respondent submits that the decision the lower Court, the subject of this Appeal, is the Ruling dated 26th April, 2019, which is an interlocutory decision making this an interlocutory Appeal. Reliance is placed on Section 14(1) of the Court of Appeal Act, 2004 to submit that an Appeal shall lie against the interlocutory order or decision of a State High Court (inter alia) to the Court of Appeal by leave of that Court or of
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the Court of Appeal. Counsel therefore submits that the failure of the Appellant to obtain such leave renders the Notice and Grounds of appeal incompetent. Reliance was placed on Chrome Air Services V Fidelity Bank Plc (2018) All FWLR (Pt. 920) 135, 154, D-E; Anachebe V Ijeoma (2015) All FWLR (Pt. 784) 183, 199, E-G; Petgas Resources Ltd V Louis Mbanefo (2018) All FWLR (Pt. 926) 123, 146, A-D.
Counsel further submits that the issues raised by the Appellant in his Brief of argument are not issues of law alone, but also issues of mixed law and fact. That being so, it was incumbent on the Appellant to first obtain the leave of Court in order to argue the issues so raised. He relies on Nikagbate V Opaye (2018) All FWLR (Pt. 965) 79, 94, C-D; Osahon Nathaniel Obayuwana & Ors V Chief John Osamede Adun (2020) Legalpedia (SC) 14106; Maigoro V Garba (1999) 10 NWLR (Pt. 624) 555; EFCC V Dada (2015) All FWLR (Pt. 783) 1842, 1865, G-F. Consequently, Counsel urged the Court to strike out the Appeal. On his own part, learned Counsel for the Appellant addressed the preliminary objection under the following issue:
Whether by the Notice and Grounds of Appeal
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filed by the Appellant which questions the jurisdiction of the lower Court to entertain the Respondent’s suit, being a question of law alone, there is the need to seek and obtain either the leave of the lower Court or this Court?
It is Counsel’s contention that the two grounds of Appeal in the Notice of Appeal are grounds of law and therefore the need to seek the leave of either the lower Court or of this Court to file the Appeal did not arise. He submits that any issue touching on jurisdiction is a matter of law. Reliance is placed on Obi V INEC (2007) All FWLR (Pt. 378) 1116, 1159, E-F; Dairo V UBN Plc (2007) All FWLR (Pt. 392) 1846, 1873-1876, A-A.
Counsel expatiated that the complaint of the Appellant in the Appeal is that the learned trial Judge misunderstood the law and so wrongly conferred jurisdiction on himself. In addition, the learned trial Judge delved into the substantive suit at the interlocutory stage when considering the issue of jurisdiction.
Counsel further submits that by Section 241(1) (b) of the Constitution of the Federal Republic of Nigeria (1999), an appeal on grounds of law alone is as of right and thus does
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not require the leave of the Court, notwithstanding that it is from a final or interlocutory decision – Obi V NDIC (2007) All FWLR (Pt. 393) 143, 156, F-G; M/V Gongola Hope V Smurfit Cases Ltd (2007) All FWLR (Pt. 388) 1005, 1018, A; Elugbe V Omokhafe (2005) All FWLR (Pt. 243) 642, C-D. Counsel therefore submits that the issue is jurisdictional, the Appellant having contended that the lower Court was not vested with territorial jurisdiction.
Concerning the second ground of appeal, Counsel submits that it is also a ground of law based on the decision of the lower Court which pronounced on the substantive issue of Publication at the interlocutory stage of proceedings. This amounts to a misunderstanding or misapplication of the law and thus is a question of law. He therefore urged the Court to dismiss the objection.
RESOLUTION
Indeed, the law is certain that by virtue of Section 14(1) of the Court of Appeal Act, 2004, an Appellant is required to seek the leave of Court to appeal against the interlocutory decisions of a lower Court. Nonetheless, by Section 241(1) (b) of the Constitution (supra), where such an interlocutory appeal raises only an
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issue of law, the appeal is as of right and no leave of Court is required. That is the purport of both provisions referred to and relied upon, and there is no contradiction inherent therein.
The decision of the lower Court is no doubt an interlocutory decision and not a final decision. Based on the submissions of both learned Counsel therefore, the only question to be determined in this preliminary objection is whether the grounds of appeal arising from this interlocutory decision, consist of grounds of law alone or also include grounds of mixed law and fact to warrant seeking the leave of this Court, in fulfillment of Section 242(1) of the Constitution (supra) and Section 14(1) of the Court of Appeal Act (supra). An excursion through the Appellant’s Grounds of Appeal in his Notice of Appeal is imperative at this stage.
Ground one without its particulars complains as follows:
“Ground 1
The learned trial Judge erred in law when he held that the lower Court has jurisdiction to entertain the subject matter of the case as the cause of action arose in Abuja.”
Ground two with its particulars complains thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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“Ground 2
The learned trial Judge erred in law when he held that
“Exhibits A1, A2, A3, A4, A5 and A6 attached to the affidavit in support of the preliminary objection are copies of the letters dated 5th December, 2018 addressed to the President and Commander in Chief of the Federal Republic of Nigeria and copies to the Governor of Bornu State, Attorney General of Bornu State, Inspector General of Police and Director General State Security Services while Exhibit B1 also attached to the affidavit in support of the preliminary objection is a copy of the Press Conference delivered by the Defendant/Applicant. It is apparent that the Publication is more than one.”
Particulars
“The learned trial Judge had delved into the substance of the case at interlocutory level by pronouncing on publication which is an essential element of defamation.”
For ease of reference, the relevant provisions of the Constitution provide inter alia as follows:
“241. – (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
12
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;…
242. – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” (Emphasis supplied)
In interpreting these provisions, the Supreme Court in the case of Dairo V UBN Plc (2007) All FWLR (Pt. 392) 1846 per Mohammed, JSC, held inter alia thus:
“…I would like to have a cursory look at the criteria set out by a long list of decided cases on how to distinguish a ground of appeal based on law alone; on facts and mixed law and fact the following principles may serve as a guide:
i. …
ii. A ground of law which challenges the findings of fact made by the trial Court or involves issue of law and fact is a ground of mixed law and fact. See Maigoro V Garba (supra).
iii. Whether the
13
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)…”
This decision shall be the plumb-line/yardstick upon which I shall base my determination of this issue.
In my considered view and based on the constitutional provisions and decided authorities on the point, Ground one which questions whether or not the lower Court was vested with territorial jurisdiction to entertain the suit, is purely a ground of law. On the other hand Ground two raises an issue of mixed law and fact. This is because Ground two complains that the finding of the lower Court to the effect that: the Appellant, by copying the letter/petition which was addressed to the President of the Federal Republic of Nigeria, to various other persons (including the Governor of Borno State, the Attorney General of Borno State, the Inspector General of Police and the Director General of the State Security Services), and the addressing of a Press Conference in this regard, amounted to publication.
The reason is that Ground two
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requires this Court to embark upon an evaluation of the facts contained in the various affidavits of the parties, before the law in respect thereof can be applied. It is both legally accepted and a notorious fact that affidavits only contain facts. Put another way, what is under attack or question in Ground two is whether the lower Court, by a making a determination on the issue of publication based on the affidavit evidence before it, delved into an issue to be determined in the substantive suit. The ground is therefore one of mixed law and fact.
To clarify further, the Respondent herein in his supporting affidavit before the lower Court, exhibited Exhibits A1, A2, A3, A4, A5 and A6, being copies of the Appellant/Defendant’s letter addressed to the President and Commander-in-Chief of the Armed Forces of Nigeria, and copied to the Governor of Bornu State, the Attorney General of Borno State, the Inspector General of Police, the DG of the SSS, among others. Upon examining these documents, the lower Court came to a determination, rightly or wrongly, that contrary to the objection raised by the Appellant/Defendant the Court had territorial jurisdiction
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to entertain the suit as the said letters were copied to persons and agencies who reside within the boundaries of Borno State.
Based on this, the learned trial Judge held that the Court was vested with jurisdiction to entertain the suit since the addresses for service on both the Defendant/Objector (now Appellant) and the Plaintiff (now Respondent) was Maiduguri in Borno State; and also based on the fact that copies of the said letters were sent to the Commissioner of Police Borno State Command Maiduguri, within the jurisdiction of the Court. Whether this finding amounts to delving into the question of ‘publication’ arising in the substantive suit is a matter for the substantive Appeal which is yet to be heard by this Court.
Thus, before this Court can be invited to resolve the question of whether or not by its finding, the lower Court delved into an issue in the substantive suit, to wit: publication in the case of defamation at the interlocutory stage, the Appellant must first seek the leave of Court to file this Appeal against its decision which is based on mixed law and fact. See Dairo V UBN PLC (supra).
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Consequently, I find merit in the objection, Ground two of the Grounds of Appeal having raised an issue of mixed law and fact arising from an interlocutory decision of the lower Court – Section 242(1) of the Constitution (supra).
Thus, the requisite leave of Court not having been sought and obtained in line with Section 242(1) of the Constitution (supra), the preliminary objection raised to the hearing of this Appeal is upheld. The Appeal is incompetent and is accordingly struck out.
Having found the Appeal incompetent, this Court is unable to proceed any further to inquire into the merits or otherwise of the Appeal as same has come to a screeching halt at this preliminary stage.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege to preview the lead judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
I am in complete agreement with the reasoning and conclusion reached therein and have nothing else to add.
I therefore also strike out the Appeal and abide by the orders made therein.
I make no order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the Judgment delivered
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by my learned brother, Jummai Hannatu Sankey, JCA.
I am on the same footing with his Lordship that the appeal is incompetent and deserves nothing short of being struck out.
In agreeing with his Lordship I want to point out that, a ground of appeal which challenges the findings of fact made by the trial Court or involves issue of law and fact is a ground of mixed law and fact. See the case of Dairo vs. UBN Plc (2007) All FWLR (Pt. 392) 1846. It is not in doubt that Ground two raises an issue of mixed law and fact. The complaint therein is that the finding of the lower Court that copying the letter written by the Appellant which was addressed to the President of Nigeria and other persons including the Governor of Borno State, the Attorney-General of Borno State, the Inspector General of Police and the Director-General of the State Security Services; as well as the Press Conference amounted to Publication.
The determination of the question whether the appellant required prior leave to appeal revolves round the provisions of Sections 241(1)(a) and (b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). For ease of
18
reference, the said Sections are hereunder reproduced:
“241. – (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(c) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance;
(d) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;…
243. – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
This appeal is against an interlocutory decision of the lower Court, and therefore comes within the purview of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This provision mandates the appellant to seek leave since his appeal is not against a final decision of the lower Court which would have attracted the application of Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
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Therefore, since the Appellant did not seek and obtain leave before the appeal was filed, the said appeal is incompetent, and is hereby accordingly struck out.
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Appearances:
I Bello, Esq. For Appellant(s)
S.A. Onimisi, Esq. appears for the Respondent holding the brief of A.A. Alfa, Esq. For Respondent(s)
