BABA v. HAMMAN
(2020)LCN/14074(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, March 31, 2020
CA/YL/4M/2020(R)
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
AMINU UMAR BABA APPELANT(S)
And
BULUS HAMMAN RESPONDENT(S)
RATIO
DUTY OF A COUNSEL TO THE COURT AND HIS CLIENT
It is noteworthy that learned counsel in the performance of his duty as an advocate owes the Court and his client a duty to put forward his case when he sincerely knows he has one and to withdraw and advise his client accordingly when he knows he has none rather than waste the precious time of the opposing side and the Court. Learned Counsel is duty bound to do his best in advocacy without playing a hide and seek game and hoping to get away with it. In the present case, the position of the Supreme Court in SHITTU’S CASE was made available and read in open Court assuming learned counsel was not aware of the decision and the alterations of the 1999 Constitution, which is doubtful. PER UWA, J.C.A.
JURISDICTION OF THE SUPREME COURT TO HEAR GROUNDS OF APPEALS WHICH INVOLVE LAW ALONE
It is clear that the application is sought pursuant to Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which is non – existent. Following the Alterations of the 1999 Constitution (as amended) there is no appeal to the Supreme Court on grounds of facts and mixed law and facts. All appeals on grounds of facts or mixed law and facts terminate at the Court of Appeal. By the Alterations of the 1999 Constitution 1st, 2nd and 3rd Alterations, there is no longer Section 233 (3) of the Constitution, under which the present application was brought. The resultant effect is that the Supreme Court can only now entertain appeals where the ground of appeal involved questions of law, see Section 233 (1) and (2) of the Constitution which provides as follows:
233(1): “The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases–
(a) Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.”
From the above provisions of the Constitution, it is clear that the Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of facts or mixed law and facts as sought by the applicant, such appeals terminate at this Court. See SHITTU VS. PAN LTD (Supra). I hold that the application is incompetent. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment): In the application brought pursuant to Section 15 of the Court of Appeal Act, Order 6 Rule 1 of the Court of Appeal Rules, 2016 and the inherent powers of this Court, the applicant prayed for the following reliefs:
1. “AN ORDER of Court granting leave to the Respondent/Applicant to appeal against the judgment of this Honourable Court on other Grounds other than Grounds of law.
2. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances”.
The grounds upon which the application was brought are as follows:
1. “Judgment of this Honourable Court was delivered in this appeal on the 9th December, 2019 in favour of the Appellant/Respondent.
2. The Respondent/Applicant being dissatisfied with the judgment of the Honourable Court has decided to appeal to the Supreme Court.
3. That the proposed Grounds of Appeal contained other grounds other than grounds of law.
4. The Respondent/Applicant needs the leave of this Honourable Court to appeal to the Supreme Court on other grounds other than
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grounds of law.
5. That the period within which the Respondent/Applicant may appeal against the decision of the Court has not expired.
6. That this application is to enable the Respondent/Applicant’s appeal to be heard on other grounds other than grounds of law as stipulated by the 1999 Constitution (as amended) and the Rules of Court.”
In moving the application, the learned counsel to the Applicant C. G. Ike-Okeafor Esq. relied on his affidavit in support of the application of four paragraphs, the six grounds for the application and the attached Exhibit to the affidavit, ‘A’ the proposed Notice of Appeal and ‘B’ the judgment sought to be appealed against.
The learned counsel to the Respondent N. N. Wayeh Esq. opposed the application on points of law. It was submitted that the appeal is incompetent as there is no appeal to the Supreme Court on any other ground other than law. See, SHITTU VS. PAN (2018) VOL. 15 NWLR (PT.1642) PAGE 195 at 210. We were urged to dismiss the application.
I have considered the reliefs sought in the application, the grounds for the application, the supporting affidavit
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and argument of the counsel on both sides. It is clear that the application is sought pursuant to Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which is non – existent. Following the Alterations of the 1999 Constitution (as amended) there is no appeal to the Supreme Court on grounds of facts and mixed law and facts. All appeals on grounds of facts or mixed law and facts terminate at the Court of Appeal. By the Alterations of the 1999 Constitution 1st, 2nd and 3rd Alterations, there is no longer Section 233 (3) of the Constitution, under which the present application was brought. The resultant effect is that the Supreme Court can only now entertain appeals where the ground of appeal involved questions of law, see Section 233 (1) and (2) of the Constitution which provides as follows:
233(1): “The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases–
(a) Where the grounds of
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appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.”
From the above provisions of the Constitution, it is clear that the Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of facts or mixed law and facts as sought by the applicant, such appeals terminate at this Court. See SHITTU VS. PAN LTD (Supra). I hold that the application is incompetent.
It is noteworthy that learned counsel in the performance of his duty as an advocate owes the Court and his client a duty to put forward his case when he sincerely knows he has one and to withdraw and advise his client accordingly when he knows he has none rather than waste the precious time of the opposing side and the Court. Learned Counsel is duty bound to do his best in advocacy without playing a hide and seek game and hoping to get away with it. In the present case, the position of the Supreme Court in SHITTU’S CASE was made available and read in open Court assuming learned counsel was not aware of the decision and the alterations of the 1999 Constitution, which is doubtful.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In sum, the application for leave to appeal on grounds of facts and mixed law and facts is not grantable, same is refused and hereby dismissed.
I award costs of N50,000.00 (Fifty Thousand Naira) to the Respondents.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead ruling just delivered by learned brother Chidi Nwaoma Uwa JCA.
For the reasons contained in the lead ruling which I adopt as mine, I too dismiss the application.
I abide by all other orders including the order as costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
G. Ike-Okeafor Esq. For Appellant(s)
N. Wayeh Esq. For Respondent(s)
