CHIEF ABEGUNDE OGUNMILUA v. MR. AFOLABI ASHAOLU (2013)

CHIEF ABEGUNDE OGUNMILUA v. MR. AFOLABI ASHAOLU

(2013)LCN/6580(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/EK/81/2013

RATIO

CONDITION TO DETERMINE WHETHER A DECISION IS SAID TO BE FINAL

A decision is said to be final when it determines the rights of the parties respecting the subject matter in dispute and without leaving any option to either party to relitigate over the same subject matter. Thus a decision or order of Court which does not finally dispose of the rights of the parties in the substantive subject matter in dispute such a decision is an issues or issues, or which does not foreclose the parties from relegate, over the same subject matter such as an order striking out a suit is interlocutory. OMONUWA v. OSHODI (1985) 2 NWLR (Pt. 10) 924: IDAKULA v. ADAMU (2001) 1 NWLR (Pt. 694) 322 EBOKAM v. EKWENIBE & SONS TRADING Co. LTD (1999) 10 NWLR (Pt. 622) 242: CHIEF OZO NWANKWO ALOR & ANOR v. NGENE (2007) 17 NWLR (Pt. 1062) 163.

EXERCISE OF DISCRETION BY A TRIAL JUDGE

The law presupposes that the Trial Judge is in charge of his Court and in dispensing justice he must be allowed to exercise discretion judicially and judiciously. Thus Courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them.
An exercise of discretion is a liberty or privilege to decide and act in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See OWNERS OF M. V. LUPEX v. N.O.C. & S LTD (2003) 15 NWLR (Pt. 844) 469. Per FATIMA OMORO AKINBAMI, J.C.A.

EFFECT OF FAILURE OF A RESPONDENT TO SEEK THE LEAVE IF THE COURT IN RAISING A PRELIMINARY OBJECTION TO THE COMPETENCE OF AN APPEAL

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

CHIEF ABEGUNDE OGUNMILUA Appellant(s)

AND

1. MR. AFOLABI ASHAOLU
2. MR. ISHOLA Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons and a Statement of Claim both filed on the 15th of May, 2007, the Appellant herein as plaintiff at the High Court of Ekiti State sitting at Ado Ekiti, Claimed the following reliefs:-
(A) A declaration that the Plaintiff is entitled to the statutory right of occupancy in respect of the land situated, lying and being at Moriri, along Ilawe Road, Ado-Ekiti.
(B) A perpetual injunction restraining the defendants from trespassing on the land surveying same without the consent of the Plaintiff.
(c) An injunction restraining the Defendant from bringing the second Defendant from trespassing on Moriri land and surveying same without the consent of the Plaintiff.
(D) The sum of N250,000.00 (Two Hundred and Fifty Thousand Naira only) being special damages for trespass on the afore said land by the Defendant.
The 1st Respondent as 1st Defendant filed a twenty (20) paragraphs Statement of Defence on the 8th of October, 2007 in which he counter claimed as follows:
(a) An order of Court to the effect that the 1st Defendant is entitled to the use and enjoyment of his grandfather’s Esiu (previous farmland) without any interference from any person.
(b) A perpetual injunction restraining the Plaintiff, his agents, cronies, representatives etc from interfering with such enjoyments.
(c) A sum of N1,000.000.000 (One Million Naira only).

For damages suffered by the 1st Defendant when the Plaintiff and/or his agents drove away the 2nd Defendant and thereby prevented him from carrying out the surveying of the 1st Defendant’s fathers’ Esiu (previous farmland) which assignment was given to him by the 1st Defendant.
The Appellant filed a reply to the 1st Defendant’s Statement of Defence and Counter-Claim on the 2nd November, 2007. Issues having been joined, the case proceeded to trial. The Appellant testified on the 24th June, 2009 and later called two other witnesses before closing his case on the 22nd of March, 2010, for the defence to commence on the 12th May, 2010.
Briefly the facts of the case as deduced from the pleadings are that the plaintiff/Appellant filed a notice of change of counsel on the 20th November, 2012 after closing his case. New Plaintiff/Appellant’s counsel filed a motion dated 13th November, 2012 on 21st November, 2012, for amendment of pleadings. The application is supported by an affidavit of 12 paragraphs as follows:

AFFIDAVIT IN SUPPORT OF MOTION
I, STELLA AYO FAYOSE, Female, Christian, Nigerian of 55, Isato Street Ado-Ekiti do hereby make oath and say as follows:-
1. That I am the deponent in the motion herein.
2. That I have the consent and authority of the Plaintiff-Applicant to swear to this affidavit. I am also a litigation officer in the chambers of Taiwo Ogunmoroti and Company, Solicitors to the Applicant herein.
3. That as a result of my position in the chambers above, I am familiar with the facts and circumstances of this case and save and except as otherwise stated, the facts deposed herein are facts within my personal knowledge, information and believe.
4. That after going through the statement of claim, the Applicant informed me and I verily believed him that there is the need to amend the said statement of claim.
5. That some facts were not pleaded in the statement of claim which are important for the just determination of the suit herein so I was informed by the Applicant and I verily believed him.
6. That the facts have now been included and underlined in the proposed amended statement of claim.
7. That the proposed amended statement of claim is herewith attached and marked Exhibit ‘ASF’.
8. That it is not out of disrespect that this application is being filed but the reason(s) adumbrated above.
9. That the Respondents will not be prejudiced or overreached in anyway if the application is granted.
10. That it is only the court that can grant the application.
11. That it is in the interest of justice to grant this application.
12. That I swear to this affidavit in truth and good faith.
This application was opposed by the 1st Respondent by filing a Counter-affidavit on 8th February, 2013. Both learned counsel filed written submissions which they adopted and in a considered Ruling delivered on the 16th April, 2013 the learned trial Judge dismissed the application.
It is against this Ruling that the Appellant has brought this appeal. His Notice of appeal at page 68 of the record of Appeal, which was filed on the 29th of April, 2013 contains two (2) grounds of appeal:
(A) The lower Court erred in law when it dismissed the Appellants motion for amendment for no genuine, just or justifiable reason(s).
(B) The lower Court erred in law when it took into consideration irrelevant reasons for refusing the Appellant’s application and without regard to the principle of fair hearing or Appellant’s constitutional right to fair hearing and this has occasioned a miscarriage of justice.
In compliance with the Rules of this Court, Mr. Taiwo Martins Ogunmoroti, learned Counsel for the Appellant formulated two (2) issues from the two (2) grounds of appeal, for determination of this appeal.
These issues are hereunder reproduced as follows:-
(1) Whether the Appellant is not legally permitted to amend his pleadings upon change of counsel (Ground 1)
(2) Whether the denial to amend the pleadings of the Appellant by the learned trial Judge did not amount to denial of fair hearing.

These issues (1) and (2) were formulated from grounds (A – B) respectively.
Mr. Kayode Akinwumi, learned counsel for the 1st Respondent issued a Notice of Preliminary Objection to grounds A and B on the 12th of September, 2013. The said Notice of Preliminary Objection was filed on the 17th of October, 2013. 1st Respondent’s counsel did not file Respondent’s Brief of Argument. Where a Preliminary Objection is raised against the hearing of the appeal, it is pertinent as laid down by legal pronouncements that where a Preliminary Objection is issued against the competence of a procedural step or an appeal, such objection shall be determined first before the hearing of the substantive matter connected to the procedural step or the appeal. See: AMOS v. ALABI (2003) 15 NSCQLR 133, ODU v. AGBOR – HEMESON (2003) 1 NWLR (Pt. 802) 624.

It is also the law that where a Preliminary Objection to the competence of an appeal is raised either in the brief or separately, the Respondent raising such objection, must seek the Leave of the Court to argue same before the hearing of the appeal. Where that is not done, the Preliminary Objection is deemed waived and abandoned and it is liable to be struck out.
See: A. G. OF RIVERS STATE v. G. O. UDE (2006) 17 NWLR (Pt 1008) 436 at 452 paragraphs G – H, NSIRIM v. NSIRIM (1990) 3 NWLR (Pt 138) 285 at 297, ONOCHIE v. ODOGWU (2006) 2 SCM 95: OFORKIRE & ANOR v. MADUIKE & ORS (2003) 5 NWLR (Pt 812) 166.
At the hearing of this appeal on the 22nd of October, 2013. Mr. Kayode Akinwumi Esq. sought the Leave of the Court to argue orally the Preliminary Objection he raised, because he did not file a written brief. The Court acceded to the application. 1st Respondent’s counsel thereafter referred to the Preliminary Objection which is as follows:
(1) The Appellant failed or neglected to obtain the Leave of Court before filing the Notice of Appeal against an interlocutory decision of the lower Court.
For the purpose of substantiating the Preliminary Objection raised, the learned counsel canvassed the argument grounding same as follows:
That the Appellant appealed against the Ruling of Ekiti State High Court, sitting at Ado-Ekiti delivered on the 16th April, 2013 by A. S. Daramola J. The Respondent’s counsel submitted that the Appellant’s application for amendment of pleadings was refused by the lower Court. He contended that by the provisions of Section 14(1) of the Court of Appeal Act 2011 (as amended) the Appellant has no right of Appeal on interlocutory matter, except by the Leave of Court to do so. Learned counsel argued further that the Appellant did not seek or obtain the Leave as prescribed by Section 14 (1) of the Court of Appeal Act 2011, from either the Court below or this Court before filing this appeal. In aid, learned counsel cited the case of EVANS IBETO v. ALHAJI ADBUL AZEEZ AMINU (2007) ALL FWLR (Pt 355) 521 AT 533. ROMANUS AMECHI & ORS v. KELVIN OBINNA (2001) ALL FWLR (Pt 492) 1163 at 1189 para B – L. In his further argument, learned counsel submitted, and urged this Court to strike out this appeal, arguing that the Appellant, has no discretion or choice, but must obtain Leave before appealing, the Ruling of the lower Court. Still in argument learned counsel submitted that it is incumbent, that Appellant must seek Leave. Learned counsel concluded that the appeal ought to be struck out as it is incompetent, in view of the fact that there is a fundamental breach. He cited the case of INTER OCEAN OIL CORPORATION NIGERIA UNLIMITED & ANOR v. DR FESTUS ALANI FADEYI (2008) ALL FWLR (Pt 403) 1381 at 1395 paras A, F, G.

In his reply argument, Mr. Taiwo Ogunmoroti, Learned counsel for the Appellant urged this Court to discountenance 1st Respondent’s objection. He submitted that Section 14 (1) of the Court of Appeal Act 2011 is on all fours with Section 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Still in argument, learned counsel submitted that Section 242 of the 1999 Constitution is subject to Section 241 (1) (b) of the 1999 Constitution. Consequently, he contended that Leave is not required, if appeal is solely on issue of law. In aid, learned counsel cited the case of AUGUSTINE v. HOGAN (2008) 16 NWLR (Pt. 1112) 95.
Further in his argument, learned counsel submitted that the Notice of Appeal is on issue of law, denial of fair hearing. In aid, learned counsel cited the cases of BIDA v. ABUBAKAR (2011) 5 NWLR (Pt 123) 130 at 171 paragraphs A – B: GENERAL ELECTRIC COMPANY v. AKANDE (2010) 18 NWLR (Pt. 1225) 595 at para H – A.

Learned counsel reiterated the fact that, they do not need Leave to appeal, by the combined provisions of Section 241 (1) (b) and 242 of the provisions of the 1999 Constitution (as amended).
In conclusion learned counsel contended that the appeal is meritorious, and urged the Court to discountenance the Preliminary Objection and dismiss same.
Thereafter, the main appeal was argued by Mr. Taiwo Ogunmoroti, learned counsel for the Appellant. He submitted that the decision of the Court was delivered on the 16th of April, 2013. The Appellant being dissatisfied with the said decision caused his learned counsel to file Notice of Appeal on the 29th April, 2013. Learned counsel adopted and relied on the Brief of Argument filed on the 5th July, 2013, as Appellants argument in respect of this appeal.
Appellant formulated two issues for determination from two grounds of appeal, page 3 of the Appellant’s Brief of Argument. Learned counsel on behalf of Appellant urged this Court to allow this appeal and consequently transfer this case back to the Chief Judge, and order retrial before another Judge. Mr. Kayode Akinwumi Esq. on behalf of 1st Respondent did not reply on points of law.

It is settled law that wherever Preliminary Objection is raised on appeal, an Appeal Court is duty bound to resolve it first before disposing of the appeal before it on the merit. It is on that backdrop that I deem it necessary to deal with the Preliminary Objection first, before considering the issues raised in the appeal if need be. In doing so, I shall treat the Preliminary Objection raised by the 1st Respondent as regards the two grounds of appeal.
The 1st Respondent’s Preliminary Objection pertains to alleged non-acquisition of Leave of this or the lower Court by the Appellant before appealing. It is the submission of 1st Respondent’s counsel that by the provisions of Section 14 (1) of the Court of Appeal Act, 2011 Appellant has no right of Appeal on interlocutory matter except by Leave of Court to do so. That leave of this Court or the lower Court had to be sought and obtained and such Leave was never, obtained by Appellant prior to the institution of his appeal. On that submission reliance was placed upon Section 14 (1) of the Court of Appeal Act. The said Section reads thus:-
“Section 14 (1) –
Where in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by Leave of that Court or of the Court of Appeal, lie to the Court of Appeal: but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to costs”.
On behalf of the Appellant Mr. Taiwo Ogunmoroti learned counsel in Reply, referred to Section 14 (1) of the Court of Appeal Act 2011, as being on all fours with Section 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He submitted that Section 242 is subject to Section 241 (1) (b) of the 1999 Constitution (as amended). I deem it pertinent for ease of reference to reproduce both Section 242 and 241 (1) (b) of the 1999 Constitution (as amended).
“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
“Section 242
(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from 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.
(2) The Court of Appeal may dispose of any application for Leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of Justice do not require an oral hearing of the application”.
Appellant’s Learned counsel contended that Leave is not required if appeal is solely on issue of law. In aid, learned counsel cited the case of AUGUSTINE v. HOGAN (2003) 16 NWLR (Pt. 1112) 95 at 111. On the Notice of Appeal learned counsel submitted that it is on issues of law that is denial of fair hearing. In aid of his contention he cited the case of BIDA v. ABUBAKAR (2011) 5 NWLR (Pt. 1123) 130, 171 para A – B: GENERAL ELECTRIC COMPANY v. AKANDE (2010) 18 NWLR (Pt. 1225) 595, 613 – 514 para H – A. The appeal of the Appellant arose from the Ruling of the lower Court which refused his application to amend his pleadings. The said Ruling at pages 66 – 67 of the record of appeal is as follows:
“I have studiously gone through the affidavit evidence on both sides of the divide in this matter. I have also perused the submission of counsel on this interlocutory application.
It is sufficient to say that this is one way a leave of Court should not be sought.
The Plaintiff closed his case over three years ago and but for the tardiness on both sides judgment ought to have been delivered in the matter a long time ago. But then, the plaintiff suddenly changed his counsel years after he closed his case. The new counsel in his own wisdom believed the pleadings earlier filed by the Plaintiff was not sufficient and now wants to rewrite the whole statement of claim and presumably will thereafter reopen the Plaintiffs case afresh and call witnesses to buttress the proposed amended claim. This is a matter that was filed on 15th May, 2007: obviously the step proposed for this Court to try this matter by the Plaintiff’s new counsel is not the right step. This Court will be seriously failing in its duty in managing time and resources of this Court should it grant the Leave sought by the Plaintiff. There is no tenable reason howsoever to grant the relief sought by the Plaintiff applicant in this matter. It is in the premises of the above elucidation that I refuse the prayer sought in this application and dismiss same”.
The interlocutory decision of the lower Court reproduced above in this judgment is one where the learned trial Judge excised his discretion vis-a-vis Appellant’s application for amendment of his pleadings.

Clearly the decision of the learned trial judge to refuse the application for amendment is an exercise within his discretionary powers as a Judge. See PANALPINA WORLD TRANSPORT HOLDING A.G. v. JEIDOC LTD & ANOR (2011) LPELR 4828 CA.
The law presupposes that the Trial Judge is in charge of his Court and in dispensing justice he must be allowed to exercise discretion judicially and judiciously. Thus Courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them.
An exercise of discretion is a liberty or privilege to decide and act in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See OWNERS OF M. V. LUPEX v. N.O.C. & S LTD (2003) 15 NWLR (Pt. 844) 469. That is why the Superior Courts have held that where the discretion of a trial Court is challenged Leave must first be sought and obtained before that Court or the Appellate Court before it can be countenanced by an Appellate Court. See DIAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) 239 UBN PLC v. SOGUNRO (2006) 6 NWLR (Pt. 1006) 505.
OKORO JCA (as he then was) stated at page 33 of the case of PANALPINA WORLD TRANSPORT HOLDING PG v. JEIDOL LTD & ANOR (SUPRA).
“I need to emphasize here that after a suit has been filed, the trial Judge becomes the donunis litis (the master of the proceedings) and has the duty and responsibility of ensuring that the proceedings accord with justice, equity and fair play. In the exercise of these onerous duties, he has wide powers and discretion to achieve justice for all”.

Whether a party seeking to appeal against an exercise of discretion of the Court must seek Leave of the lower Court or the Court of Appeal.
“The Supreme Court has held in CENTRAL BANK OF NIGERIA v. OKOJIE (2002) 8 NWLR (Pt 768), that where an appeal is against the exercise of the discretionary power of the Court below, it is a question of mixed law and fact which the grounds of appeal filed in this matter clearly shows. Thus a party seeking to appeal against an exercise of discretion of the Court must seek and obtain the Leave of the lower Court or the Court of Appeal before filing his Notice of Appeal. Failure to obtain the requisite Leave renders the appeal incompetent and liable to be struck out. See Section 14 (1) of the Court of Appeal Act 2011; OGECHIE v. ONOCHUE (1986) 3 SC 54.
In this instant appeal, the argument of the learned Appellant’s counsel is that the appeal is on issue of law.
To determine whether the grounds of appeal in the Appellant’s Notice of Appeal is on issue of pure law, it is pertinent for me to examine the two grounds of appeal earlier reproduced.
“Ground (A) the lower court erred in law when it dismissed the Appellant’s motion for amendment for no genuine, just or justifiable reason(s)”.
The subject matter of ground A is the interlocutory decision/Ruling of the lower Court. For a Court to decide an application, it has the requisite judicial discretion bestowed upon it by law, to examine the issues placed before the Court in the affidavit evidence of the parties.
The affidavit evidence in this instant case as I had earlier reproduced clearly in paragraphs 3, 4, 5 and 6 referred to facts, and actions which were not captured in the Statement of Claim sought to be amended.
The depositions placed before the learned trial Judge in the affidavit in support of the application for amendment which I have earlier reproduced in this judgment are subject to the discretion of the judge, to either believe the facts deposed to therein or disbelief the facts. The learned trial Judge in his ruling clearly, expressed his own views on the application. He referred to the facts of this case vis-a-vis the way the parties had been tardy in their presentation of their case. The law empowers the trial Judge to express his views on the facts deposed to in the affidavit evidence before him. I am fortified in this my view by the decision of the Supreme Court in the case of CENTRAL BANK OF NIGERIA v. OKOJIE (2002) 8 NWLR (Pt. 768) 48 Per Ogwuegbu, JSC at page 59 paras B-E
“The appeal filed by the Appellants/Applicants is in respect of the grant by the Court below of leave to amend the statement of Claim which is an appeal against an interlocutory decision of that Court made in the course of appeal no CA/L/121/99 pending before it. By virtue of Section 21 (2) of the Supreme Court Act Cap. 424, laws of the Federation of Nigeria, 1990, an appeal against such a decision lies to this Court by leave of the Court below to this Court. The Appellants/Applicants neither obtained the leave of the Court below nor of this Court before filing their notice of appeal. The appeal is also against the exercise of the discretionary power of the Court below which is invariably a question of mixed law and fact as the ground of appeal filed happens to be. The notice of appeal filed is accordingly incompetent”

Appellants learned counsel’s submission, that Section 14 (1) of the Court of Appeal Act 2011 (as amended) is on all fours with Section 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is correct.
I am of the view that Appellants learned counsel’s argument that leave is not required if appeal is solely on issue of law is not applicable to his application, in that his appeal is against the interlocutory Ruling of the lower Court. The discretionary decision of the lower Court is one arrived at from mixed law and facts as presented before the Court by affidavit evidence.
Having considered the submission of both counsels on the 1st Respondent’s Notice of Preliminary Objection, I find it necessary first to determine two questions. The first is whether the decision of the lower Court which led to this appeal was an interlocutory or final decision and are of law or of mixed law and facts.
A decision is said to be final when it determines the rights of the parties respecting the subject matter in dispute and without leaving any option to either party to relitigate over the same subject matter. Thus a decision or order of Court which does not finally dispose of the rights of the parties in the substantive subject matter in dispute such a decision is an issues or issues, or which does not foreclose the parties from relegate, over the same subject matter such as an order striking out a suit is interlocutory. OMONUWA v. OSHODI (1985) 2 NWLR (Pt. 10) 924: IDAKULA v. ADAMU (2001) 1 NWLR (Pt. 694) 322 EBOKAM v. EKWENIBE & SONS TRADING Co. LTD (1999) 10 NWLR (Pt. 622) 242: CHIEF OZO NWANKWO ALOR & ANOR v. NGENE (2007) 17 NWLR (Pt. 1062) 163.

In order to determine whether the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between parties and not the function of the Court making the order. Therefore the determining factor is not whether the Court has finally determined an issue but whether or not it has finally determined the rights of the parties in the claim before the parties.
In ALOR v. NGENE (2007) 17 NWLR (Pt. 1062) 163. The Supreme Court (Per Niki Tobi, JSC) confirmed that two tests have generally been laid down in Nigeria for determining whether or not an order of Court is final or interlocutory. They are:
(a) The nature of the application made to the Court.
(b) The nature of the order made

In the instant case, the claim of the Plaintiff before the lower Court by his Statement of Claim was for a declaration that the Plaintiff is entitled to the statutory right of occupancy in respect of the land situate at Moriri along Ilawe Road, Ado Ekiti. Injunction restraining the defendants from trespassing on the land and damages.
The decision of the Court, subject of this appeal was based on the application of Plaintiff to amend his pleadings subsequent to changing his counsel.
The lower Court ruled and dismissed the application in the circumstances, it is clear that the lower court had not dealt with the Plaintiff’s substantive claims.
The order of the Court was not conclusive as to the subject matter and does not finally dispose the right of the parties.

I have no hesitation therefore in coming to the conclusion, that the decision of the Court which led to this appeal was indeed an interlocutory decision. I will now consider whether the Appellant’s grounds of appeal are of law or mixed law and fact. In doing so, I shall deal with the two (2) grounds of appeal in seriatim. On the face of it ground one (A) of the Appellant’s Notice of Appeal earlier reproduced in this judgment is a ground of mixed law and fact.
The particulars of error in respect of ground one (A) of the Notice of Appeal Read thus:

A.
(i) It is conceded that the Appellant has changed his counsel from Chief O. A. Borisade to Taiwo Ogunmoroti of Counsel.
(ii) A counsel who has just taken over a matter has a legal duty or obligation to amend the processes or pleadings.
(iii) An amendment can be made at any stage of the trial or proceedings.
(iv) The Statement of Claim of the Appellant cannot sustain the reliefs being claimed in the application without amendment.
(v) The Statement of Claim ought to contain sufficient flesh or facts in order to sustain the case of the Appellant.
(vi) A Court has a duty to be fair to all the parties in a case.
(vii) The amendment being sought has not changed the character of the case at all.
(viii) It is conceded that it was Appellant’s former counsel that prepared the Statement of Claim being sought to be amended.
(ix) The mistake or inadvertence of counsel should not be visited on a litigant.
(x) Dismissal of Appellant’s application is out rightly unjust, unfair, and punitive.
(xi) The Respondents have a right to amend their processes consequently without much ado.

(B) The lower Court erred in law when it took into consideration irrelevant reasons for refusing the Appellants application and without regard to the principle of fair hearing or Appellant’s Constitutional right to fair hearing and this has occasioned a miscarriage of justice.
Particulars of error.
(i) All parties in a matter must be fairly heard.
(ii) The learned trial Judge refused the Appellant the opportunity to veritilate his grievance through the amendment being sought by him and thereby closed or foreclosed Appellant’s right to fair hearing.
(iii) Amendment of any process can be made at any time or stage of the trial or proceeding.
(iv) The learned trial judge failed, neglected and refused to exercise his discretion judicially, judiciously, fairly and according to law.
(v) It is conceded that Appellant’s counsel has just taken over the matter and it is legally permitted for a counsel who has just taken over a case to amend the processes with the leave of Court.

The particulars of error provided under Appellant’s ground one (A) of the Notice of Appeal shows clearly that this Court is being called upon to determine facts which are clearly within the knowledge of the Appellant in respect of his claim before the lower Court. Specifically Appellant wants to prefer additional facts in order to sustain the relief being claimed in the Statement of Claim. The contention of the Appellant is that the Statement of Claim ought to contain sufficient flesh or facts so as to sustain his case. And that the Court has a duty to assess the facts placed before it fairly. It is noted that Appellant’s ground one (A) is properly so called ground of mixed law and fact.
In the case of MARCUS OPUIYO & ORS v. JOHNSON ONAONIWARI & CO (2007) 16 NWLR (Pt. 1060) 415. The Supreme Court (Per Oguntade, JSC) followed its earlier decision in OJEMEN v. MOMODU (1983) 1 SCNLR 188 and held that in the determination of the question whether or not a ground of appeal is of law or of fact or of mixed law and fact, it is important to consider together the principal complaint and the particulars of error provided there under.

Appellant’s ground two (B) of the Notice of Appeal which I have reproduced above, with the particulars of error is clearly a ground of mixed law and facts.
It is still the same complaint that the learned trial Judge did not grant his application to amend his Statement of Claim that this led to denial of fair hearing. I must note that the Appellant was given the opportunity to veritilate his grievances, by moving his application to amend his Statement of Claim. In my view the duty of the Court was fulfilled, in that the Appellant’s application for amendment was heard by the trial Judge, who in his own wisdom after listening to both the Appellant and the 1st Respondent decided to refuse the application. The Appellant was definitely heard by the learned trial Judge he was certainly not denied fair hearing as he alleged.
From the above, the two (2) grounds of appeal in the Appellant’s Notice of Appeal contain grounds of appeal or questions of mixed law and facts.
I will now consider the question whether the Appellant would have sought leave of Court before proceeding with his Notice of Appeal.
I refer to Section 241 (1) 242 which I had earlier reproduced in this judgment.
A combined reading of the provisions of Sections 241 (1) (a) and (b) and 242 (1) of the 1999 Constitution, gives us the following result. Section 241 (1) (b) allows an Appellant to appeal to the Court of Appeal as of right on grounds of law alone on any decision (civil or criminal) of the trial Court, then where the decision appealed against under the provision is interlocutory law, the grounds of appeal must be one of law before the Appellant can appeal as of right, otherwise leave of the trial Court or the Court of Appeal is required under Section 241 (1). See TOTAL INTERNATIONAL LTD v. AWOGBORO (1994) 4 NWLR (Pt. 337) 160: NWADIKE v. IBEKWU (1987) 4 NWLR (Pt. 67) 718.

In other words, an appeal against an interlocutory decision which is not on a ground of law alone is not competent when prior leave is not sought and obtained. UNION BANK OF NIGERIA PLC v. SOGUNRO SLOR (2006) 10 NWLR (Pt. 1006) 504.

In the instant case, leave was not sought and obtained before filing the Appellant’s interlocutory appeal which appeal was also based on grounds of mixed law and fact. The effect of the failure by the Appellant to file an interlocutory appeal on grounds of mixed law and fact without the prior leave of either the trial Court or the Court of Appeal is that the notice of appeal is ineffective and the appeal is incompetent OJEMEN v. MOMODU (1983) ISCHLR 188: MADAM FATIMO WELLE v. JOEL AJIDE BOGUNJOKO (2007) 6 NWLR (Pt. 1029) 125.
Having found the appeal incompetent. The Preliminary Objection of 1st Respondent is uphold. I do not consider it necessary to go into the merit of the appeal.
The appeal is struck out, with Thirty Thousand Naira Only (N130,000.00) as costs in favour of 1st Respondent.

PAUL ADAMU GALINJE, J.C.A.: I have read before now, the judgment just delivered by my learned brother, Akinbami, JCA, and I agree that the appeal is incompetent and should be struck out.
The Appellant’s notice of appeal is at Pages 68 – 70 of the record of appeal. The grounds of appeal as set out in the said notice of appeal have been reproduced in the lead judgment of my learned brother. Particulars of these grounds of appeal are part of the grounds of appeal. Particulars (i), (iv), (v), (vii) to ground A, as well as particulars (ii), and (v) to ground B are matters which cannot be resolved without calling evidence. They are therefore matters of fact. The 2nd ground of appeal complained that the dismissal of the appellant’s application to amend his statement of claim violated his right to fair hearing. The question as to whether someone’s right to fair hearing has been violated or not is a question of mixed law and facts to be determined by calling evidence in respect of the proceeding in the matter by the trial court. It follows therefore that the appeal being an interlocutory appeal the leave of either the lower court or this court should have been sought and obtained before the notice of appeal is filed, in line with Section 14(i) of the Court of Appeal Act and Section 242 of the Constitution of Nigeria. For example where a party is given sufficient time to take certain procedural step and he fails to do that within the time frame, he cannot be heard to complain that he has been denied fair hearing. The question as to whether such an applicant was given sufficient time to take such procedural steps is a matter of fact.
The failure of the Appellant to seek leave to appeal has rendered his notice of appeal incompetent.
For this short reason and the more detailed reasons in the lead judgment, I uphold the preliminary objection and join my learned brother in striking out this appeal.
I abide by all the consequential orders in the lead judgment including order as to cost.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, Fatima Omoro Akinbami, JCA. I agree with her reasoning and conclusion reached therein, that the preliminary objection raised by the 1st respondent herein should be upheld and that the appeal should be struck out as it is incompetent. I abide by the consequential orders made in the said lead judgment including the one as to costs made in favour of the 1st respondent.

Appearances

Taiwo Martins Ogunmoroti Esq.For Appellant

AND

Kayode Akinwumi Esq.For Respondent