In The Court of Appeal of Nigeria

On Thursday, the 12th day of May, 2005




IBRAHIM TANKO MUHAMMAD      Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA      Justice of The Court of Appeal of Nigeria

MARY UKAEGO PETER-ODILI      Justice of The Court of Appeal of Nigeria



BANK OF THE NORTH LTD   Appellant(s)



ZAINAB ADAMU BULKACHUWA, J.C.A. (Delivering the Leading Judgment): By an amended statement of claim dated the 27th day of November, the respondent as Plaintiff claimed against the appellant as defendant before the Suleja High Court 1 Niger State: Coram Oyewo, J. the following reliefs:
“1. A declaration that the failure of the 1st defendant to release the last installment of N28,333.33 for the completion of Bauchi house of the Plaintiff, as agreed frustrated the realization of the object of the housing loan contract.
2. An Order compelling the 1st defendant to separate the Plaintiff’s Suleja Branch loans account 200779 and current account 500148 from the Zaria Branch’s loan account No. 80005/8405 and current account No. 502438 and ascertain the balance on each.
3. An Order compelling the 1st defendant to produce a comprehensive statement of Account of each account run by the Plaintiff with its branches.
4. A declaration that all the interest charges on the plaintiffs loan Account on Bauchi home is unconscionable, unreasonable and unlawful and should therefore be waived.
5. An order compelling the 1st defendant to execute deed of release on plaintiff’s property covered by Certificate of Occupancy No. NGS 1684 for failure of consideration for the deed of mortgage.
Plaintiff also claimed the sum of N500,000.00 from the 1st defendant for breach of contract of the Bauchi Housing Loan.
The appellant as 1st defendant filed his statement of defence and a counter-claim for which the plaintiff filed a reply. The matter then proceeded to trial. The respondent testified as PW1 before his crass-examination; however, the appellant filed a motion on notice on the 20/10/2003, praying for an order striking out the suit for want of jurisdiction, as the statement of claim has not disclosed any cause of action. The application was moved on the 15/1/2004 and in considered ruling delivered on the 26/2/2004, the application was refused and struck out.
The defendant/appellant being dissatisfied has now appealed to this court on three grounds of appeal. From these grounds the appellant identified these issues in his brief, which was deemed filed by an order of the court made on 16/9/04:
“(a) In determining whether a Statement of Claim discloses a reasonable cause of action, is it solely the contents of the said statement of claim or some other extraneous evidence (as held by Oyewo. J) that will resolve the issue?
(b) Whether in the circumstances of this matter, it can be said that the plaintiff’s statement of claim discloses a reasonable cause of action?
(c) Whether the claim of N500,000 as damages can be dealt with by the trial court independent of the other claim thereby conferring the court with jurisdiction when the claim for damages is inextricably linked to or ancillary to the other reliefs.”
The respondent in his brief of argument filed within time on 14/10/04 raised a preliminary objection on the grounds of appeal and in the alternative that the preliminary objection is overruled raised these issues for the determination of the appeal:
‘(1) Whether the respondent pleadings disclose cause of action.
(2) Whether the appellant’s motion to strike out the suit for non-disclosure of cause of action filed at the verge of the closure of the respondent’s case is not abuse of court processes considering all the circumstances of the case.”
The appellant filed no reply to the respondent’s brief and on the day the appeal was argued the parties adopted and relied on their briefs of argument, The respondent further argued the preliminary objection and submitted that as there was no reply to the preliminary objection raised the court should uphold same and dismiss the appeal in its entirety.
I will start with the preliminary objection first and later consider the main appeal if the preliminary objection lacks merit.
The respondent submits that all the grounds of appeal raise issues of mixed law and facts and the appeal being interlocutory, the appellant requires the leave of either the lower court or this court to raise them.
He submits that even though all the 3 grounds of appeal were marked as error in law. In reality, they are grounds of mixed law and fact and such nomenclature does not cloth the grounds with error in law, if what is raised are grounds of fact or grounds of mixed law and fact – he relied on this submission on Metal Construction (W.A.) Ltd vs. Migliore & Ors (1990) All NLR 142 at 144.
On ground 1, he submits that a glance at same will show that it is not merely a ground on error in law, but a ground of fact or of mixed law and fact. That the main consideration is what the ground is complaining about not how a party chooses to name it. That in considering whether pleadings of a party discloses a cause of action, it is the duty of the court to consider the facts as contained in the pleadings before coming to its conclusion.
He relied on Alhaji Odeki Lekun vs. Comfort (1997) 12 SCNJ 144 on his submission that a court has to first consider the pleading which is a statement of fact, before it can decide wither a cause of action has been disclosed or not.
Ground 2 he submits, is complaining about the finding of fact by the trial court on whether it has territorial and subject matter jurisdiction in the matter.
Ground 3 he submits refers to the finding of the lower court that it has jurisdiction of the N500,000 damages claim for breach of contract, which was based on the pleadings before the lower court.
He on the whole submits that all the grounds of appeal raise issues of facts or of mixed law and fact and the appeal being interlocutory, the appellant needs the leave of this court or of the lower court to raise them.
For a better understanding of the issues involved in this preliminary objection, it is appropriate at this stage to examine the grounds of appeal to see whether they are as submitted by the respondent. The grounds are produced hereunder:
i. The learned trial judge erred in law, when he held that it will not be possible for him to decide whether the statement of claim has disclosed cause of action until all relevant evidence had been adduced.
Particulars of Error
(a) When in counsel’s submission and cases cited to the court it is clear that to determine cause of action resort is legally placed on the statement of claim before the court and not until evidence has been adduced.
(b) The learned trial Judge refused to follow the decision in the cases of Iyabi-Ayah vs. Ayah (1997) 10 NWLR (Pt. 523) page 141 at 157 and Olagunju vs. Yahaya (1998) 3 NWLR (Pt. 542) page 501 at 512, on how to determine the cause of action and failed to advance reasons for so doing.
(c) The general rule is that in determining whether there is a cause of action or not in a suit, the court is enjoined to consider the writ of summons or the statement of claim and not on the statement of defence or reply of the defence.
(2) Misdirection in Law
The learned trial Judge misdirected itself in law, when it held in the following passage of its ruling thus:
“Since the defendant is resident in Suleja and since the learned Counsel to the defendant has not argued that I have no jurisdiction to entertain such a claim, and since I am of the view that I can properly adjudicate on the above claim of N500.000.00k. I hold that I have jurisdiction to entertain it. And since I have jurisdiction to entertain at least part of the claim, I will not strike out the suit but proceed with it”.
Particulars of Misdirection
(a) The contention of the appellant/applicant before the trial court was that the claim of the plaintiff/respondent has not disclosed any cause of action and not on where the plaintiff/respondent resides.
(b) The learned trial Judge is aware that the contention is not on whether he can entertain a claim of N500.000.00k, but whether the reliefs before the court as can be seen from the statement of claim has disclosed any cause of action.
(3) Error in Law
The learned trial judge erred in law, when he held that he can entertain part of the claim which is the claim for N500,000.00k, when that relief sought flows from the relief that the learned trial judge has held he cannot determine when it was disclosed cause of action or not (sic).
Particulars of Error
(a) When the claim for the sum of N500,000.00k damages can only be considered, if the substantive refief succeeds as the substantive relief cannot be heard on its own.
(b) That since the relief could not be decided in vacuum, the trial judge does not possess Jurisdiction to hear such a claim which must flow from a substantive relief.”
It is trite that when an appeal is from an interlocutory decision and the ground of appeal is not one of law alone, leave of the appellate court or the trial court must first be had and obtained. Failure to obtain such leave is fatal to the appeal. See: Ojukwu vs. KAINE (2000) 15 NWLR (Pt. 691) 516, Commissioner of Finance vs. UKPONG (2000) 4 NWLR (Pt. 653) 363; OKON vs. EKANEM (2002) 15 NWLR (Pt. 789) 106: Nigerian Airforce vs. Shekete (2002) 18 NWLR (Pt. 789) 129; Hassan vs. Atanyi; (2002) 8 NWLR (Pt. 770) 581.
The decision which is the subject matter of this appeal, falls within the ambit of an interlocutory decision as the issues between the parties have not been finally decided before the trial court.
For in determining whether a decision is final or interlocutory, what is to be considered is whether the decision determines the right of the parties in the matter, if it is so the decision is final, where however after the determination of the decision the parties still have to continue with the trial, as in the instant case, then the decision is said to be interlocutory. See Owo vs. Adetiloye (1998) 10 NWLR (Pt. 570) 488.
This being an interlocutory appeal, if as contended by the respondent the grounds of appeal are not grounds of law alone, the appellant requires the leave of this court or of the lower court in filing the grounds to make them competent.
The Supreme Court had in Metal Construction (West African) Ltd vs. D A, Migliore & Ors; In Re Miss C Ogundare (1990) ANLR 142, (1990) 1 NWLR (Pt. 126) 266, examined at length the phrases ‘a question of law’ and ‘a question of fact’ and at pages 149-150 Karibi-Whyte, JSC, defined them as follows:
“Generally, considered the term ‘question of law is capable of three different meanings. First, it could mean a question the court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one determined and authoritatively answered by the law.
The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter, the question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning.
The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers question of law only. Thus any question which is within the province of the Judge instead of the Jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but within the province of a Judge. Also, the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution which is one of fact, but it is a matter of law to be decided by the Judge.”
On ‘question of fact’ he has this to say:
“Now, turning to what is a question of fact? It is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exception. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question of what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.”
In the instant case, all the grounds of appeal are said to be on errors of law signifying that they are all grounds of law alone. The determining factor however is not how they are presented, for to determine whether a ground of appeal which is described as a ground of law is in fact a ground of fact or of mixed law and fact, the ground must be read together with its particulars.
Ground 1 read with its particulars is against the decision of the trial judge where he said he has to hear all relevant evidence to be able to determine whether the statement of claim discloses a cause of action.
To my understanding, a statement of claim is an averment of all relevant facts which a plaintiff in a matter has to put forward to enable the other party know what he will come up against. Its determination by the application of the above principles will therefore come under ‘question of fact’.
Ground 2 at best, can be described as a ground of mixed law and fact for it touches on the jurisdictional competence of the trial court to hear the matter based on the averments in the statement of claim.
Ground three is similarly couched and arises from the N500,00.00 damages claim and the decision of the trial court to proceed with the case based on the claim.
Applying the above principles to these grounds, all the grounds of appeal are grounds of mixed law and fact, they therefore, require leave of this court or the court below to be filed and argued. The records has shown that no such leave was sought and obtained, they are therefore incompetent.
I should have outright upheld the preliminary objection of the respondent, as the appellant failed to file a reply to same, nor did he address us on it at the hearing of the appeal, the presumption is that he had conceded to all the submission of the learned Counsel for the respondent on the preliminary objection. Having however, considered the preliminary objection. I am of the opinion that it has merit and should be sustained.
In the circumstances, I uphold the preliminary objection that the three grounds of appeal are incompetent and I hereby strike them out. There is therefore no appeal before us, I award cost of N10,000.00 to the respondent.

IBRAHIM TANKO MUHAMMAD, J.C.A.: I have read the judgment of my learned brother, Bulkachuwa, JCA. I agree with the reasoning and conclusions reached. I abide by the consequential orders made, including order as to costs.




  1. N Agomoh (Miss) ;
    K. C. EsonFor Appellant



Akin AdewaleFor Respondent


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