DEACON OLATUNDE OLADOKUN & ORS v. JIMKAH AUTOMOBILE SERVICE ENGINEERING NIGERIA LIMITED & ORS
(2019)LCN/12775(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/IL/103/16
RATIO
COURT AND PROCEDURE: DIFFERENCE BETWEEN GROUNDS OF LAW AND A GROUND WHICH IS MIXED WITH LAW
“It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Overtime, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See, ODUNUKWE VS. OFOMATA (2010) 18 NWLR (PT. 125) 404; METAL CONSTRUCTION (W.A.) LTD VS. MIGLIORE (1990) 1 NWLR (PT. 126) 299; OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT.23) 484; ANUKAM VS. ANUKAM (2008) 5 NWLR (PT. 1081) 455. See also ORAKOSIM VS. MENKITI (2001) 5 SC, (PT. 1) 72, OSASONA VS. AJAYI (2004) 5 SC, (PT. 1) 88, GLOBAL WEST VESSEL SPECIALIST NIG. LTD VS. NIGERIA LNG LTD. & ANOR (2017) LPELR 41987 (SC).” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. DEACON OLATUNDE OLADOKUN
2. TIMOTHY BISI OYEDELE
3. USMAN ABDULRAHMAN
4. CHIEF EZEKIEL FOLA GBADEYAN
5. ALHAJI ALABERE
6. MR. ABDULLATEEF
7. ALFA LUKMAN (HASBUNALAHU)
8. BABA GIRI
9. MR. FEMI OLATUNJI
10. MR. OLATUNBOSUN
11. MR. SAAD
12. MR. GBOLAHAN (PASTOR)
13. MR. CHUKWUMA UDE Appellant(s)
AND
1. JIMKAH AUTOMOBILE SERVICE ENGINEERING NIGERIA LIMITED
2. YEKINI KOLAWOLE JIMOH
3. LAMIDI KOLAWOLE JIMOH
4. KAYODE JEMILU JIMOH
5. MORGAN FRANK AKPAN
6. ROSAKET GLOBAL VENTURES LTD
7. R.T. AZEEZ REAL GOLD PETROL Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the ruling of the High Court of Kwara State, presided over by S. T. Abdulkadir, J., delivered on the 11th day of February, 2016 in which the Appellant’s preliminary objection was dismissed.
The background facts are that the respondents as claimants at the lower Court by their writ of the summons and statement of claim sought the following reliefs:
a. AN ORDER of this Honourable Court, declaring the defendants as trespassers to the claimants? land.
b. AN ORDER of the Honourable Court directing the defendants to vacate their property from the claimants? land.
c. AN ORDER of perpetual injunction restraining the defendants, their privies, agents, or any person deriving authority from them from trespassing or further act of trespass on the claimants? land pending the final determination of the suit.
d. AN ORDER of injunction restraining the defendants from further sale of the claimants’ land.
e. A sum of N500,000.00 being damages for the act of trespass committed by the defendants.
f. A declaration that the claimants are the rightful holder of the Certificate of Occupancy NO.2995 dated January, 1982.
Upon the service of the claimants? processes on the defendants/Appellants, the Appellants filed a notice of preliminary objection on the 21st October, 2015 which was withdrawn and struck out on the 13th day of January, 2016.
The claimants/1st – 4th Respondents did not file a counter affidavit to the Appellants motion on notice, but, instead filed another motion on the 13th day of November, 2015. The following reliefs were sought in the motion papers:
a. AN ORDER of this Honourable Court, granting leave to the claimants/Applicants to change their counsel in this case from Tunde Olomu Esq. to Dr. Amuda Kannike (SAN) and to reflect same on any other processes to be filed.
b. AN ORDER of this Honourable Court striking out the motion on notice filed by the Defendants/Respondents dated 16th day of October, 2015 and filed on the 21st of October, 2015, on the ground that the said motion on notice is incompetent as the said motion is in contravention of Order 26 Rules 1 and 2 of the Kwara State High Court (Civil Procedure) rules 2005, which do not allow demurrer.
c. AN ORDER granting leave to the Claimants/Applicants to amend their writ of summons, statement of claim, statement on Oath and generally, all the processes filed in this suit on behalf of the Claimants/Applicants in line with the memorandum of amendment filed in this suit and attached herein as Exhibit A1 and also in line with the proposed amended writ of summons, proposed amended statement on Oath of Yekini Kolawole and also proposed amended list of documents filed and attached herein as Exhibits A2, A3, A4 and A5 respectively.
The Respondents’ motion was supported by an affidavit deposed to by Yekini Kolawole Jimoh with a written address in its support. On 6th January, 2016, the Appellants filed their Motion on Notice dated 14th December, 2015 raising objection to the competency of the action before the trial Court and filed a written address in its support on 14th December, 2016. There was no counter affidavit filed by the 1st – 4th Respondents. The 1st – 4th Respondents to the motion/objection filed a reply on points of law, to the Appellants’ preliminary objection on 11th January, 2016. On the 13th day of January, 2016, the Motion on Notice raising Objection dated 14th December, 2015, filed on 6th January, 2016 was moved by the Defendant/Appellants. The Appellants were dissatisfied with the ruling of the trial Court dismissing the preliminary objection thus this appeal.
The following issues were distilled for the determination of the appeal:
1. Whether the 1st to 4th respondents are competent and recognizable persons in law to invoke the jurisdiction of Court as they did by their originating processes before the lower trial Court is an abuse of Court process.
2. Whether the trial judge was right in abandoning her duty to deliver a ruling on specific issues canvassed in the preliminary objection; and instead dwelt on an extraneous issue of two competing motions to resolve the issues in the preliminary objection.
3. Whether the trial judge adopted procedure of hearing the 1st to 4th defendants motion for amendment on a date fixed for ruling of the preliminary objection, without putting the appellants on notice, is a travesty of justice and the violation of fair hearing provision in Section 36 of the 1999 Constitution (as amended) and whether such amendment as granted by the trial judge cures the fundamental jurisdictional defect inherent in the originating processes at the time of filing.
In response, the 1st to 4th respondents raised a preliminary objection challenging the competence of the appeal in their brief of argument filed on 24th October, 2018 alleging that the grounds of appeal are of mixed law and facts and required the leave of the Court to appeal, contain extraneous facts, argument, prayers and conclusion against what is required by law. Reliance was placed on Section 241 (1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned Counsel to the 1st – 4th Respondent, Abdulrazak A. Daibu Esq., adopted and relied on his Brief of Argument filed on 24th October, 2018 in arguing the preliminary objection. It was submitted that particulars 1 and 2 of ground one of the grounds of appeal are facts, while grounds 3 and 4 are of Law, therefore, the grounds of appeal are of mixed Law and facts.
Further, that grounds 2, 3 and 4 contain prayers and conclusions which is not permitted by the Rules of this Court, reference was made to Order 7 Rule 2(3) of the Court of Appeal Rules, 2016 and reliance placed on the case of ARUGU VS. R. S. E. C.(2011) ALL FWLR (PT. 602) 1706. We were urged to dismiss the appeal.
In the alternative, should the preliminary objection fail, the 1st – 4th Respondents’ Learned Counsel formulated a sole issue for the determination of the appeal thus:
‘WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE REFUSED THE APPELLANTS PREMINARY OBJECTION AND GRANTING THE 1ST – 4TH RESPONDENTS MOTION FOR AMENDMENT
The learned counsel to the 1st – 4th respondents T. O. S Gbadeyan Esq., responded to the preliminary objection in his reply brief filed on 31/5/18. The learned counsel challenged the competence of the preliminary objection raised and argued by the learned counsel to the 1st – 4th Respondents in his brief of argument, in that no notice of the preliminary objection was filed separately pursuant to the Rules of this Court. Reliance was placed on the cases of ADEDOYIN VS. ONIYIDE (2012) LPELR 7954 (CA), MR. IBIWOYE ANU AYODIJI and ANOR VS. SENATOR SIMEON AJIBOLA and ORS (unreported) APT/CA/IL/SEN/9/2011 delivered on 14/12/11, Court of Appeal Ilorin Division. We were urged to discountenance the objection.
In the alternative, should the Court hold that the preliminary objection was competently raised; the learned counsel posed the question as to whether the grounds of appeal raise questions of law, mixed law and facts or facts simpliciter. Reliance was placed on the case of GLOBAL WEST VESSLE NIG. LTD VS. NIGERIA NLG LTD (2017) 1 – 2 SC (PT. 11) 39 at PAGE 68, per Ariwoola, JSC. Learned Counsel agreed that the appeal is against an interlocutory ruling of the trial Court and that the appeal was filed without leave of the lower court or this Court. It was argued that the grounds of appeal are grounds of law. Further, that the grounds of appeal raise questions of law to be resolved by this Court. It was argued that a challenge of a trial Court hearing a motion for amendment of processes on a date fixed for ruling only and the grant of the amendment suo motu without hearing from counsel is lack of fair hearing which is an issue of law.
We were urged to discountenance the Respondents? preliminary objection. It was concluded that the grounds of appeal are not argumentative, extraneous, did not seek any prayers and are not conclusive as alleged by the 1st – 4th respondents’ learned counsel.
The 5th – 7th Respondents did not file any brief and did not react to the preliminary objection.
Contrary to the argument of the learned counsel to the Appellant in answer to the preliminary objection, the 1st – 4th Respondent’s preliminary objection is not challenging an aspect of the Appellants’ brief of argument but, rather challenged the competence of the entire appeal for the Appellant’s failure to obtain the leave of the Court to argue the grounds of appeal which are of mixed law and facts. Being a challenge of the competence of the entire appeal, argued in the Respondents’ brief of argument, the appellant was put on Notice and had the opportunity to respond in their reply brief and rightly did so in their reply brief. I discountenance the challenge of the mode in which the preliminary objection was raised and argued.
On the substantive preliminary objection, the grounds of appeal must be examined thoroughly to be able to determine if the grounds are a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, in this case, it would be a question of law. On the other hand, where the grounds question the evaluation of facts by the lower Court before the application of the law, this would amount to a question of mixed law and facts. Where the appeal is against the finding made by the lower Court, the question is on facts and the leave of Court would be required before filing the Notice of Appeal. It is difficult to distinguish between a ground of law and a ground of facts. It is trite that an appeal from the trial Court on the issue of law is as of right but, an appeal purely on facts or mixed law and facts require the leave of the Court below or this Court. To determine the nature of a ground of appeal, the ground must be examined with its particulars as a whole and read together. In distinguishing between a ground of law, ground of fact and ground of mixed law and facts in CHROME AIR SERVICES LIMITED & ORS VS. FIDELITY BANK (2017) LPELR 43470 (SC) at P. 19, PARAS. B -E, his Lordship Kekere – Ekun, JSC explained the distinction thus:
It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Overtime, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See, ODUNUKWE VS. OFOMATA (2010) 18 NWLR (PT. 125) 404; METAL CONSTRUCTION (W.A.) LTD VS. MIGLIORE (1990) 1 NWLR (PT. 126) 299; OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT.23) 484; ANUKAM VS. ANUKAM (2008) 5 NWLR (PT. 1081) 455. See also ORAKOSIM VS. MENKITI (2001) 5 SC, (PT. 1) 72, OSASONA VS. AJAYI (2004) 5 SC, (PT. 1) 88, GLOBAL WEST VESSEL SPECIALIST NIG. LTD VS. NIGERIA LNG LTD. & ANOR (2017) LPELR 41987 (SC).
The learned counsel to the Appellant had argued that ground 1 is a ground of law alone but, a look at the particulars (1) and (2) of ground one reveals otherwise:
GROUND OF APPEAL 1
The learned trial judge erred in law when she dismissed the appellant’s preliminary objection challenging the Courts jurisdiction on the ground that there is no evidence to sustain the said preliminary objection.
PARTICULARS
1. The 1st claimants at the lower Court held herself out as an existing validly incorporated company while the 2nd – 4th also sued as the directors of the 1st respondent as shown on the originating processes filed by the claimants/respondents.
2. The 2nd, 3rd and 4th Respondents, the alleged Directors of Jimikah Automobiles Services Engineering (Nig) Ltd cease to operate as Directors or connected with the company upon her deregistration in 1975.?
I agree with the submissions of the learned counsel to the 1st ? 4th Respondents that particulars (1) and (2) of ground one of the Notice of Appeal for instance are of facts. Grounds 2, 3 and 4 with their particulars are reproduced hereunder:
GROUND OF APPEAL 2.
The learned trial judge erred in law when she abandoned the issue of jurisdiction placed before her in a motion raising preliminary objection and instead; treated the unrelated issue of two competing applications before her as a reason for dismissing the preliminary objection.
PARTICULARS
1. The issue as to were (sic) there are two competing applications and which one of them is to be given priority at the hearing had earlier on been taken before the learned trial judge and the Court rightly resolved to give priority to the issue of jurisdiction.
2. The Court considered the irrelevant factors and/on issues not canvassed before her in the determination of the issues that arose from the preliminary objection.
3. The consideration of the extraneous factors has engendered the miscarriage of Justice.
GROUND OF APPEAL 3.
The learned trial judge erred in law when she peremptorily dismissed the appellant’s preliminary objection without considering in her ruling, the appellants arguments in favour of the preliminary objection as contained in the appellants written address, the affidavit in support of the motion and legal authorities cited in the said written address and the ones cited before the Court during hearing. Whereas, the trial judge immediately after her ruling, and during the same Court sitting took the motion for the amendment of the defective writ of summons and other processes and granted such amendment.
PARTICULARS
1. No amendment granted by the Court just as in this case can cure a fundamental defect in the originating processes.
2. A Court cannot through amendment of processes confer Jurisdiction on itself where non-existed before such amendment is granted.
GROUND OF APPEAL 4.
The learned trial judge erred in law when immediately after her ruling on jurisdiction went ahead to take the motion for amendment of the defective originating processes without affording the appellant a fair hearing in the determination for the motion for amendment.
PARTICULARS
The hearing and grant of amendment sought immediately after her ruling on jurisdiction is a denial of the appellant’s right to fair hearing since the Court was only constituted on that 11th February, 2016 for delivering of the ruling of Court alone.?
As rightly argued by the learned counsel to the respondents/objectors, grounds 3 and 4 are grounds of law. Therefore, grounds 1, 3 and 4 are of mixed law and facts and the leave of Court was required prior to the filing of the Notice and grounds of appeal.
The interlocutory appeal is on mixed law and facts and could only be brought after the requisite leave has been sought and obtained from either the lower Court or this Court pursuant to Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Without the leave, this appeal remains incompetent and this Court lacks jurisdiction to entertain it. In the case of F.G.N. & ANOR VS. A.I.C. LTD (2005) LPELR ? 6152 (CA) his Lordship Muhammad, JCA (as he then was) at PP. 28 ? 29, PARAS. C ? B on need to obtain the leave of Court to argue grounds of facts and mixed law and facts held that:
‘The applicants stated in their grounds upon which the application was premised that leave of Court was necessary and ought to be obtained as the proposed notice and grounds of appeal contained grounds of mixed law and fact.
‘Section 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:- (a) … (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.’
Section 242 (1) provides:- ‘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’ (Italics for emphasis) Thus, by the combined effect of the above quoted sections, a person seeking to appeal on grounds of mixed law and fact ought to have sought and obtained leave of the trial Court or this Court before filing his appeal.’ See also HON. ZAKAWAWU 1. GARUBA & ORS VS. HON. EHI BRIGHT OMOKHODION & ORS (2010) LPELR 9088 (CA), AKANBI & ORS VS. C.O.P KWARA STATE & ORS (2018) LPELR 44049 (CA), UKACHUKWU VS. GOVT. OF BORNO STATE & ORS (2017) LPELR 43271 (CA), C.B.N. & ANOR VS. OKOJIE (2002) FWLR (PT. 103) 349, (2002) 8 NWLR (PT. 768) 48, KANO ILE PRINTERS LTD VS. GLOEDE and HOFF (NIG) LTD (2005) ALL FWLR (PT. 272) 254; (2005) 13 NWLR (PT. 943) 680.
The law is that the leave of Court ought to be sought and obtained before filing Grounds of Appeal on mixed law and facts. The leave of the Court is a pre-condition to be satisfied before such grounds can be said to be properly filed before the Court. In the present case, the Appellants did not seek nor obtain the leave of either the lower Court or this Court before filing their grounds of appeal. A ground of appeal filed without the requisite leave is incompetent and liable to be struck out. The fact that the learned counsel to the Appellants has argued and labeled the grounds of appeal as grounds of law alone does not make them so. The grounds must be examined with their particulars to determine if the grounds are of law or mixed law and facts as has occurred in the present appeal.
Further, grounds 2, 3 and 4 are argumentative. Ground 2 alleged error of law but, in its particulars tended to argue the ground under the particulars, which is not permitted by the Rules of this Court. Similarly, grounds 3 and 4. Order 7 Rule 2(3) of the Court of Appeal Rule, 2016 provides as follows:
‘The Notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.’
A ground of appeal which is argumentative, narrative or verbose is incompetent and liable to be struck out under Order 7 Rule 2(3) above. See ADAH VS. ADAH (2001) 5 NWLR (705) 1, HARUNA VS. K.S.H.A. (2010) 7 NWLR (1194) 604, JUSTICE PARTY VS. INEC (2006) ALL FWLR (339) 907; N.S. ENGINEERING CO. LTD VS. EZENDUKA (2002) 1 NWLR (748) 469 at 486, ELUWA VS. ELUWA (2013) LPELR ? 22120 (CA), MUTU VS. REALVINE CONNECTIONS LTD (2016) LPELR ? 41807 (CA) and OGUNEYEHUN & ORS VS. GOV. OF ONDO STATE & ORS (2007) LPELR ? 4239 (CA). The Appellants? grounds 2, 3 and 4 are also liable to be struck out for being argumentative.
In sum, I uphold the preliminary objection. The appellants? grounds 1, 2, 3 and 4 are incompetent and each is hereby struck out. With the struck out grounds of appeal from which the issues for determination were couched, there is nothing left of the appeal.
There would be no need to go into the substantive matter, as doing so would be a mere academic exercise.
The appeal is hereby struck out for being incompetent.
Parties are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read before now the judgment just delivered by my learned brother Chidi Nwaoma Uwa, JCA.
I am in entire agreement with the reasoning and conclusion reached therein. I also dismiss the appeal and affirm the decision of the trial Court
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother CHIDI NWAOMA UWA J.C.A. just delivered. I agree with the reasoning and conclusion reached in striking out this appeal for being incompetent. The Appellants having failed to seek and obtain the leave of this Court or the Court below before filing their appeal on grounds of mixed law and facts mean that the appeal is incompetent and that this
Court cannot exercise its jurisdiction to determine it. The law is trite that no Court, including the Appellate Court has jurisdiction to hear and determine an incompetent cause or matter that has not come before it by the due process of law, that is, upon fulfilling any condition precedent to the exercise of its jurisdiction. In this appeal, that condition precedent to the exercise of our jurisdiction is the leave to appeal on grounds of mixed law and facts. See the locus classicus case of Madukolu & Ors. Vs. Nkemdilim (1962) LPELR-2423 (SC). To make matters worse for the Appellants, their grounds 2, 3 and four are argumentative and this contravened Order 7 Rule 2(3) of the Court of Appeal Rules 2016.
With these few words of mine and upon the fuller reasons stated in the lead judgment, I also find that this appeal is incompetent and it is hereby struck out by me.
Appearances:
T.O.S. Gbadeyan, Esq. with him, M.A. Bello, Esq. and K.Q. Tijani, Esq.For Appellant(s)
Abdulrazak A. Daibu, Esq. with him, Sekinat A. Daibu (Mrs.) for the 1st-4th Respondents.
Abiodun Dada, Esq. with him, Samuel Iyamu, Esq. for the 5th Respondent.
6th and 7th Respondents served but absent.For Respondent(s)
