EASY STREET LIMITED v. MV KOSMOS (2015)

EASY STREET LIMITED v. MV KOSMOS

(2015)LCN/7815(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of March, 2015

CA/L/154M/2014(R)

RATIO

APPEAL: GROUND OF APPEAL; HOW TO DETERMINE WHETHER A GROUND OF APPEAL RAISES A QUESTION OF LAW, OR OF FACTS OR OF MIXED LAW AND FACT

It must, however, be noted that it is not the label the Appellant had given to a particular ground of appeal that determines what it is. Whether of law or of mixed law and fact. The Courts, however, agree that there is a thin line between a ground of law and a ground of mixed law and fact. In Re: Otuedon (1995) 4 NWLR pt 392 pg. 655 Obatoyinbo vs. Oshatoba (1996) 5 NWLR (Pt.450) pg. 531, Yusuf vs. UBA Ltd (1996) 6 NWLR (Pt.457) pg. 632, Okeke vs. Petmong (Nig) Ltd (2005) 4 NWLR (Pt.915) pg.245.
In determining whether a ground of appeal raises a question of law alone, or of facts or of mixed law and fact, the court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the Lower Court, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where, however, the ground is such that would require questioning, the evaluation of facts by the Lower Court before the application of the law, that would amount to question of mixed law and fact. A Ground of appeal which raises facts which needed to be determined either way is a ground of fact Onifade vs. Olayiwola (1990) 7 NWLR pt.161 pg.130, Olanrewaju vs. Ogunleye (1997) 2 NWLR (Pt.485) pg.12, Shanu vs. Afribank (Nig) Plc (2000) 10 – 11 Supreme Court page 1.
The Supreme Court has generally accepted that where a ground of appeal is based on an allegation to errors deduced from a conclusion or disputed facts, it is a ground of law. Where on the other hand, the error of law is founded on disputed facts, calling into question the correctness of the facts determined, then it is a question of mixed law and fact ACB Plc vs. Obmiami Brick & Stone (1993) 5 NWLR (Pt.294) pg. 399. Ajayi vs. Omonogbe (1993) 6 NWLR (Pt.301) pg.512. per. UZO I. NDUKWE-ANYANWU, J.C.A.

APPEAL: GROUND OF APPEAL; WHAT DOES A GROUND OF APPEAL CONSIST OF

A ground of Appeal consists of the error of law or facts alleged by an Appellant, as the defect in a judgment appealed against and relied upon to set the judgment aside Metal Construction (W.A) Ltd vs. Mighone (1990) 1 NWLR (Pt.126) pg. 299, PDP vs. KSIEC (2006) 3 NWLR (Pt.968) pg.565. Grounds of Appeal are, therefore, the reasons for considering a decision of court wrong. It, therefore, means that a ground of Appeal must be couched in such a way as to attack the judgment of a court on the issues decided by it. See First Bank of Nig. Plc vs. May Med Clinics (1996) 9 NWLR Pt.471 pg.195, Folbod Investment Ltd and Alpha Merchant Bank Ltd (1996) 10 NWLR (Pt.478) pg. 344, BOSIEC vs. Kachala (2006) 1 NWLR (Pt.962) pg. 587 , Ngige vs. Obi (2006) 14 NWLR (Pt.999) pg.1 per. UZO I. NDUKWE-ANYANWU, J.C.A.

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria

Between

EASY STREET LIMITEDAppellant(s)

AND

MV KOSMOSRespondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling): This is a motion filed on 24th of October, 2014 praying for:

a. An Order granting the Applicant herein extension of time within which to seek leave of the Court of Appeal to grounds (sic) of facts and/or mixed law facts;

b. An Order granting leave to the Applicant to argue the said grounds of facts, and/or mixed law and facts in the Appellant’s Brief of Argument;

c. An Order for extension of time within which to file its Appellant’s Brief of Argument

d. An Order deeming the grounds of facts and/or mixed law and facts already argued in the Appellant’s Brief of Argument already filed and served as properly argued and the Appellant’s Brief properly filed and served, and for such order or further orders as this honourable Court may deem fit to make in the circumstances.

The grounds of this application are as follows:

1. The Appellant’s appeal before this honourable Court has been entered, the Records of Appeal having been transmitted from the Federal High Court, Lagos to this Court, and the Appellant has also filed its Appellant’s Brief of Argument incorporating all the grounds and same served on the Respondent albeit out of time.

2. Although some of the grounds are pure grounds of law, some of the other grounds in the Appellant’s Notice of Appeal are on fact and/or mixed law and facts.

3. By virtue of the provision of Section 242 (i) of the 1999 Constitution grounds of facts, and/or mixed law and facts require leave of Court to be first sought and obtained before the institution of the appeal.

4. The time prescribed by the Court of Appeal Act and the Rules within which an application for leave to appeal ought to be filed has elapsed thus, the need to extend the time within which to seek leave to argue the said grounds.

5. The Appellant’s Brief of Argument has now been filed separately and the appropriate penalty fees paid for the said filing.

6. The order of this honourable Court is also required to regularize the Appellant’s Brief of Argument already filed and served before this honourable Court, which contains arguments on the grounds of law and on fact and/or mixed law and facts.

7. The order of this honourable court is required to deem the Appellant’s Brief of Argument already filed out of time and on the issues of fact, and/or mixed law and facts as having been properly argued, filed and served.

In support is a six-paragraph affidavit sworn to by one Bunmi Bukoye. Also attached are three exhibits. Counsel relies on all the paragraphs and exhibits in urging the court to grant his prayers. Counsel submitted that grounds 3, 4, and 5 are of Law and referred the court to Minister of Petroleum Resources (2014) 4 NWLR (Pt.1396) pg.24. Counsel argues that ground 4 is of pure law and it is enough to ground an appeal even if all the other grounds are of mixed law and fact, see Pharmartec Industry Ltd vs. Ojo (1996) 1 NWLR (Pt.424) pg. 332, Unifam Industry Ltd vs. Oceanic International Bank Ltd (2005) 3 NWLR (Pt.911) pg. 83, BB Construction Ltd vs. Ahmed (1998) 9 NWLR (Pt.566) pg.486, Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) pg.718. Counsel finally urged the court to grant his prayers.

In response, Learned Counsel to the Respondent submitted that ground 3 is on discretion of the court on cost. Ground 4 is also of mixed law and facts. Counsel referred the court to Section 241 (2) (c) of the 1999 Constitution and Unifam Industry Ltd vs. Oceanic International Bank Ltd (supra).

This ground is a ground that questions the discretion of the court in which the Appellant was to post the bank guarantee. All these particulars are on the issue of facts.

Counsel submits that grounds 1, 2, and 6 are of mixed law and facts and grounds 3, 4, and 5 cannot support this notice. See Ault & Wibong Nig. Ltd vs. Nibling Ltd (2010) 16 NWLR (Pt.1220) pg.486.

Counsel finally urged the court to hold that the motion is incompetent and that it needs the trinity prayers. See Unifam Industry Ltd vs. Oceanic International Bank Ltd (supra) Oketade vs. Adewunmi (2010) 8 NWLR (Pt.1195) pg.63 at 81, See also Section 241 (2) (c) of the 1999 Constitution which does not stipulate any specie of cost. Any appeal arising from the exercise of any Learned Judge’s discretion regarding the issue of cost in whatsoever manner requires the leave of court.
Counsel urges the court to refuse this application.

The six grounds of Appeal already filed are all attacking the propriety of cost awarded by the trial court. Indeed, all the grounds of appeal can be rolled into one.

The Appellant had labelled his grounds that of law.

It must, however, be noted that it is not the label the Appellant had given to a particular ground of appeal that determines what it is. Whether of law or of mixed law and fact. The Courts, however, agree that there is a thin line between a ground of law and a ground of mixed law and fact.
In Re: Otuedon (1995) 4 NWLR pt 392 pg. 655 Obatoyinbo vs. Oshatoba (1996) 5 NWLR (Pt.450) pg. 531, Yusuf vs. UBA Ltd (1996) 6 NWLR (Pt.457) pg. 632, Okeke vs. Petmong (Nig) Ltd (2005) 4 NWLR (Pt.915) pg.245.
In determining whether a ground of appeal raises a question of law alone, or of facts or of mixed law and fact, the court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the Lower Court, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where, however, the ground is such that would require questioning, the evaluation of facts by the Lower Court before the application of the law, that would amount to question of mixed law and fact. A Ground of appeal which raises facts which needed to be determined either way is a ground of fact Onifade vs. Olayiwola (1990) 7 NWLR pt.161 pg.130, Olanrewaju vs. Ogunleye (1997) 2 NWLR (Pt.485) pg.12, Shanu vs. Afribank (Nig) Plc (2000) 10 – 11 Supreme Court page 1.
The Supreme Court has generally accepted that where a ground of appeal is based on an allegation to errors deduced from a conclusion or disputed facts, it is a ground of law. Where on the other hand, the error of law is founded on disputed facts, calling into question the correctness of the facts determined, then it is a question of mixed law and fact ACB Plc vs. Obmiami Brick & Stone (1993) 5 NWLR (Pt.294) pg. 399. Ajayi vs. Omonogbe (1993) 6 NWLR (Pt.301) pg.512.

It is, therefore, clear from the grounds of Appeal that there is no ground on law simpliciter. At best! it is of mixed law and fact and, therefore, requires leave of court.

The six grounds of Appeal are at best mixed law and fact. They cannot in law maintain this Appeal.

By virtue of Section 241 (1) (b) of the 1999 Constitution, an Appeal against decision of a High Court only lies as of right if the grounds of Appeal involves questions of law alone. Where the grounds of Appeal involve questions other than pure law, leave of either the High Court or the Court of Appeal must be obtained otherwise the appeal will be incompetent. However, where one of the grounds is a question of law, that ground is sufficient to sustain the appeal Leaders & Co. LTd vs. Kusamotu. (2004) 4 NWLR (Pt.804) pg.519.

This application cannot be granted as there is no competent ground of Appeal. This application is, therefore, refused.

No order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A. : I am in full agreement with the Ruling prepared by my learned brother, Uzo Ndukwe Anyanwu, J. C.A., which I had the benefit of reading in advance.

YARGATA BYENCHIT NIMPAR, J.C.A. : I had the privilege of reading the draft ruling just delivered by my learned brother, UZO. I. NDUKWE- ANYANWU JCA. I agree with the reasoning and conclusion reached therein. They are well set out and very concise too.

I only wish to add a few words of mine on the necessity of leave of court to raise grounds of fact and/or mixed fact and law. There is no appeal as of right on grounds outside the constitutional provision in Section 241(1) (b). All other grounds that arise outside the area covered by the above section require leave of court and that too is a constitutional requirement that cannot be waived. Ground raising issues of fact, mixed law and fact can only stand upon leave of the Lower Court or this court.

It is not how a party labels a ground that qualifies it, but the essence is the error alleged by an appellant in a judgment appealed against and relied upon to ask the court to set it aside. The court has unfettered right to look at the grounds in order to determine whether they fall into their appropriate categories, see EJIWUNMI V. COSTAIN (W.A) PLC (1988) 12 NWLR (PT.576) 146; OLOJOUN V OZIMA (1985) 2 NWLR (PT.6) 167.

It is imperative for an appellant seeking to raise grounds of fact or mixed fact and law to first seek leave which is fundamental, see GARUBA V OMOKHDON (2011) 6-7 SC (Pt.V) 89. That is what has caught up with the appellant in this appeal. The grounds of appeal here are of fact and mixed law and fact. Right of appeal is dependent on leave and leave is not one of the prayers in this application; therefore the application must fail.

I too, find the application incompetent and cannot be granted for failure to have a competent ground upon which the appeal can stand. The application is dismissed and I abide by the orders made in the lead ruling.

Appearances

A. Olorunfemi, T. GajiFor Appellant

AND

B. Koku (SAN), H. Ubah, C. SilvanusFor Respondent