FESTUS KEYAMO v. PETER FOLORUNSO & ORS
(2011)LCN/4379(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of March, 2011
CA/L/673/05
RATIO
AFFIDAVIT EVIDENCE: POSITION OF THE LAW ON THE EFFECT OF UNCHALLENGED AVERMENTS IN AN AFFIDAVIT
It is an elementary principle of law that unchallenged averments in an affidavit are deemed to be established and the court will be entitled to rely upon such depositions. PER HUSSEIN MUKHTAR, J.C.A.
WHETHER EQUITABLE INTEREST COUPLED WITH POSSESSION IS AS GOOD AS A LEGAL ESTATE
Equitable interest coupled with possession is as good as a legal estate. See Ikonne v Wachuka (1991) 2 NWLR (pt. 172) 214 at 228 paras C. PER HUSSEIN MUKHTAR, J.C.A.
SETTING ASIDE OF A DECISION: WHETHER AN APPELLATE CAN SET ASIDE A DECISION OF A LOWER COURT WHICH IS RIGHT MERELY BECAUSE THE TRIAL JUDGE OR THE COURT BELOW, GAVE WRONG REASONS FOR THE DECISION
it is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily at the reason for the decision. In other words, an appellate court, will not set aside, the decision of a lower court which is right, merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessary whether the reasons are right. PER HUSSEIN MUKHTAR, J.C.A.
STATUTORY PROVISION: PROVISION OF SECTION 233 (2) OF THE CONSTITUTION AS IT RELATES TO CIRCUMSTANCES UNDER WHICH AN APPEAL FROM THE DECISION OF THE COURT OF APPEAL TO THE SUPREME COURT SHALL BE FILED WITHOUT LEAVE AND AS OF RIGHT
The circumstances under which an appeal from the decision of this court to the Supreme Court shall be filed without leave and as of right ex-debito justitie are as provided by section 233 (2) of the Constitution. These are: “233(2) An appeal shall lie from decisions of the court of Appeal to the Supreme court as of right in the following cases: a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; c) Decisions in any civil or criminal proceedings on question as to whether any of the provisions of chapter iv of this Constitution has been, is being or is likely to be, contravened in relation to any person; d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court. e) Decisions on any question: i Whether any person has been validly elected to the office of President or Vice- President under this Constitution, ii Whether the term of office of President or Vice-President has ceased, iii Whether the office of President or Vice President has become vacant; and for Such other cases as may be prescribed by an Act of the National Assembly” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICE
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
FESTUS KEYAMO Appellant(s)
AND
1. PETER FOLORUNSO
2. OLUFEWA TUMININU FOLORUNSO
3. TEMINI BOLUTIFE FOLORUNSO
(suing by next friend PETER FOLORUNSO)
4. BADEN-MOYET NIGERIA LTDRespondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling): The applicant herein has sought for leave to appeal to the Supreme Court of Nigeria, on grounds of fact and mixed law and fact, against the judgment of this court delivered on the 17th December, 2010 in appeal No. CA/673/05. The application is premised on the following four grounds:
“a)The applicant herein is dissatisfied with the judgment of this honourable Court delivered on the 17th day of December, 2010 in CA/L/673/05 and is desirous of exercising his right of appeal under the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
(a) Substantial grounds of facts and mixed law and facts are raised in the proposed notice of appeal requiring determination by the Supreme Court.
(b) The leave of this honourable court is required to raise and file grounds of facts, and of mixed law and facts, i.e. grounds other than grounds of law alone, in order for the appeal to be competent.
(c) There is no concurrent finding of fact by the trial and this honourable court in this matter thus; the intervention of the Supreme Court is of the essence.”
The application is supported by a six paragraph affidavit and reliance was especially placed on paragraph 3 thereof which is reproduced thus:
“That I was informed by Mr. Festus Keyamo, on 17 January, 2011 in our chambers at No 1, Festus Keyamo Lane, Anthony Village, Lagos State at about 8am, while preparing the processes in this appeal, and I verily believe him that:
a) That this honourable court delivered a judgment in the said appeal No. CA/L/673/2005 on the 17th day of December, 2010. The said judgment of this honourable court is attached herewith and marked exhibit A.
b) That the appellant/applicant is dissatisfied with the said judgment of this honourable court delivered on 17th December, 2010.
c) That the appellant/applicant desires to exercise his right of appeal as provided under the 1999 Constitution against the said judgment of this honourable court delivered against him on 17th of December, 2010 in CA/L/673/2005 to the Supreme Court. Attached herewith and marked exhibit B is a copy of the appellant/applicant’s proposed notice of appeal to the Supreme Court.
d) That substantial grounds of facts, and mixed law and facts have been raised in the appellant’s proposed notice of appeal (exhibit B) requiring determination by the Supreme Court.
e) That the leave of this honourable court is required to enable the appellant/applicant’s appeal to the Supreme Court against the said judgment of this honourable court delivered on 17th December, 2010 in the said CA/L/673/2005 on grounds of facts, and mixed law and facts in order for the appellant/applicant’s appeal to be valid and competent in accordance with the requirement of the provisions of 1999 Constitution.
f) That there is no concurrent finding of fact by the trial court and this honourable court in this matter, thus, the intervention of the Supreme Court in this matter is of the essence.”
The applicant’s counsel Vitalis Ahaotu, Esq also relied on a further affidavit of four paragraphs, which introduced the proposed notice of appeal exhibit C.
It was submitted for the applicant that section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as “the Constitution”) requires the applicant to seek for and obtain leave as a necessary pre-condition for appealing.
The learned counsel for the applicant also attacked paragraphs 2 to 4 of the counter affidavit filed by the 1st to 3rd respondents which he contended, offend sections 87 and 89 of the Evidence Act Cap. E14 L.F.N.2004. The said paragraphs he submitted are argumentative and run foul of sections 87 and 89 of the Evidence Act. The said section 87 provides thus:
“87. An affidavit shall not contain extraneous matter by way of objection, or prayer or legal argument or conclusion.”
It was submitted for the applicant that the depositions in paragraphs 2, 3 and 4 are legal arguments and conclusions. Moreover, it was further submitted, the deponent did not state the name of his informant and other particulars regarding the time, place and circumstances of the information, and thereby offending section 89 of the Evidence Act, which provides as follows:
“89. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information.”
The court was urged to struck out the said paragraphs 2, 3 and 4 of the counter affidavit of the 1st to 3rd respondents and grant the application. In fact, not only is the counter affidavit substantially defective by the offensive paragraphs 2,3 and 4, but one wonders if it could be necessary at all. The objection is purely premised on point of law. The crux of the respondents’ counsel’s submission was that leave was not required in appealing against final decision of the Court of Appeal to the Supreme Court irrespective of the nature of the grounds of appeal.
In his response, the learned counsel for the 1st, 2nd and 3rd respondents Nojim Tairu, Esq contended that the appeal for which leave is sought by the instant application is against the final decision of this court. He submitted that it is therefore irrelevant that it is grounded on mixed law and fact. He further noted that the applicable provision is section 233 (2) of the Constitution and not 233 (3) as contended by the applicant’s counsel. He further submitted that leave is not required for an appeal pursuant to section 233 (2) of the 1999 Constitution which provides thus:
“233(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases-
Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;
c) Decisions in any civil or criminal proceedings on question as to whether any of the provisions of chapter iv of this Constitution has been, is being or is likely to be, contravened in relation to any person;
d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.
e) Decisions on any question:
i. Whether any person has been validly elected to the office of President or Vice- President under this Constitution,
ii. Whether the term of office of President or Vice-President has ceased,
iii. Whether the office of President or Vice President has become vacant.”
The learned counsel for the respondent relied on the Supreme Court decision in A. U. L. T. G. Wilbord Nig Ltd v Nigel (2010) 5-7 M. J. S.C. pt. II page 155 which he, however, failed to make available for the court’s perusal despite his undertaking to so do. Be it as it may, the respondents counsel does not need a counter affidavit to oppose the application on point of law as he did in this case.
The learned counsel for the applicant finally stated that the application was meant to place the applicant on the side of caution.
The provision of section 233 (2) above is very clear and devoid of any form of ambiguity. There is no doubt that an appeal from this court to the Supreme Court must in all cases, other than the situation enumerated under section 233 (2) above be made with leave of either the Court of Appeal or the Supreme Court. The requirement for leave as a precondition to appealing against the decision of the Court of Appeal on grounds of fact or mixed law and fact is mandatory. No competent notice of appeal could be filed on such grounds without leave.
The applicant has deposed in paragraph 3 (d) and (e) of the supporting affidavit dated and filed 25th January, 2011 that grounds of fact and mixed law and fact have been raised in the proposed notice of appeal attached to the further affidavit dated and filed on 31st January, 2011 as exhibit C. this fact has not been denied or controverted by the respondents in any way even in their incompetent counter affidavit which crashes head-long in conflict with sections 87 and 89 of the Evidence Act.
It is an elementary principle of law that unchallenged averments in an affidavit are deemed to be established and the court will be entitled to rely upon such depositions.
The proposed notice of appeal exhibit C, attached to the further affidavit dated and filed 31st January, 2011 contains ten grounds, which are reproduced hereunder less the particulars thereof:
“1. The learned Justices of the court of Appeal erred when they held as follows:
‘I have observed that the trial judge did make a remark that what the 1st respondent requires is a deed of gift with the Governor’s consent to crystallize into a legal estate. See page 190 of the record. However, in the end the 1st respondent was granted his claim to have a deed of Assignment executed in his favour. It cannot therefore be said that the trial judge relied solely on the issue of gift in granting the 1st respondent’s counter-claim. I only agree with the submission of the appellant under this issue to the extent that the trial judge ought to have disregarded the issue of gift since it was not pleaded. I do not however, agree with the submission of the appellant that the fact that the trial judge accepted the evidence of “gift” is a clear rejection of the story of commercial transaction or “profit sharing” or “joint venture” on which the 1st respondent based his root of title.’
2. The learned justices of the Court of Appeal erred when they held as follows:
‘The learned trial judge in my considered view rightly held that exhibit ‘E’ the instrument affecting land though stamped was not registered as required by law. Based on the reasons stated I am satisfied that the trial court rightly appraised the facts, as such this court will not interfere with or reverse the findings of fact of the trial court.
Accordingly, issue 2 is resolved in favour of the respondents.’
3. The learned Justices of the Court of Appeal erred when they held as follows:
‘Ground 3 contained in the notice of appeal did not arise from the judgment appealed against. It is
therefore incompetent in absence of any leave sought and obtained. In the circumstances I am of the view that the point raised in ground 3 of notice of appeal is not properly raised and argued before this court. Accordingly ground 3 of the notice of appeal and issue 3 and argument predicated thereon are hereby struck out.’
4. Section 15 of the Land Instrument Registration Law, Laws of Lagos State which is the basis upon which exhibit E was not admitted as a document of title, is unconstitutional.
5. The learned Justices of the Court of Appeal erred when they held as follows:
‘From the available evidence, I am inclined to agree with the learned trial judge that the property in dispute was secured as a return for investment.
Surely the evidence did not support the issue of gift as found by the learned trial judge and same
was not even a pleaded fact.’
6. The learned Justices of the Court of Appeal erred when, having held that the learned trial judge was wrong to hold that (a) the property in dispute was a gift to the 1st respondent and (b) that the 1st respondent is a licensee, but still went ahead to accept the mere assertion of 1st respondent that the property in dispute was a return for investment.
7. The learned Justices of the Court of Appeal erred when they held as follows:
‘In response to above letter 1st respondent through his solicitors wrote a letter dated 17th June, 2000 forwarding receipts to appellant in respect of the two flats and also requested for the terms and conditions of perfection of 1st respondent’s title.
The letter was received by appellant on 19th June, 2000. There was no response so 1st respondent’s solicitors wrote a reminder on 6th July, 2000. All these correspondences showed that appellant had notice of 1st respondent’s equitable interest. The appellant cannot therefore in the circumstance claim to be a bonafide purchaser for value without notice of the prior equitable interest of the 1st respondent being the solicitor that wrote exhibit ‘G’. The deed of sublease exhibit ‘E’ was executed by the appellant and 4th respondent on 18th June, 2000. That means the deed was created barely two days after the appellant wrote his letter of 15th June, 2000 (exhibit G) to the 1st respondent, inviting him to come and perfect his title. It is questionable that a Deed of sublease could be created with 3 days.
The applicable maxim in equity is he who is earlier in time is stronger in law. See the Supreme Court decision in Briggs v C.L.O.R.S.N. (2005) 12 NWLR (pt. 938) 59 at 100- 103, Animashaun v Olojo (1990) 6 NWLR (pt. 154) 111 at 114 and Ewinosho v Owokoniran (1965) NWLR 749 at 483. I agree with the respondents’ counsel that the 1st respondent’s equitable interest on the res was first in time. Appellant was therefore not a bonafide purchaser without notice. Appellant himself confirmed his notice of the 1st respondent’s equitable interest in the res flats during his cross examination at pages 35, 38 and 40 of the Record.
Equitable interest coupled with possession is as good as a legal estate. See Ikonne v Wachuka (1991) 2 NWLR (pt. 172) 214 at 228 paras C. I also agree that 1st respondent’s equitable interest in the 2 flats was reinforced by exhibit ‘G’. the learned trial judge was therefore right when he held that as at 18th June, 2000 the 4th respondent had nothing to give in respect of the res having
regard to the existing equitable right of the 1st respondent on the properties as at that date when the appellant’s Deed of Sublease exhibit ‘E’ was created. 4thh respondent cannot give what it did not have. (Nemo dat quod mon Habet)”
8. The learned Justices of the court of Appeal erred when they held that the 1st respondent had acquired a prior equitable interest in the disputed property.
9. The learned Justices of the Court of Appeal erred when they held as follows:
‘I wish to state that though the decision is right the learned trial judge in my humble view gave wrong reasons for the decision. I have earlier highlighted the wrong reasons relied upon by the trial judge. Be that as it may it is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily at the reason for the decision. In other words, an appellate court, will not set aside, the decision of a lower court which is right, merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessary whether the reasons are right.
10. The judgment is against the weight of evidence.
The above grounds are clearly of fact or at best mixed law and fact. Ground 10 being an omnibus ground of appeal and a complaint against weight of evidence is regarded as a ground of fact in civil cases. The grounds of appeal are therefore either of fact or mixed law and fact. Moreover, it has not been disputed that the grounds of appeal are of fact and mixed law and fact. An appeal on such grounds from the decision of the Court of Appeal to the Supreme Court requires leave as rightly contended by the applicant. See Opuiyo v Ononiwari (2007) 16 NWLR (pt. 1060) 415 at 431 paras B-C. There is no similar provision to that of section 241 (1)(a) of the Constitution in respect of appeals from the Federal High Court or a High Court to the Court of Appeal which is a matter of right once the decision appealed against is final.
There is no provision in the Constitution that allows notice of appeal from the decision of the Court of Appeal to the Supreme Court on grounds other than of pure law to be filed without leave. The learned counsel for the respondents erroneously submitted that an appeal against final decision of this court to the Supreme Court does not require leave irrespective of whether it is on grounds of facts mixed law and facts. I do not, with respect, share that view that the grounds are inconsequential for purposes of seeking for leave to appeal from the decision of this court to the Supreme Court:
The circumstances under which an appeal from the decision of this court to the Supreme Court shall be filed without leave and as of right ex-debito justitie are as provided by section 233 (2) of the Constitution. These are:
“233(2) An appeal shall lie from decisions of the court of Appeal to the Supreme court as of right in the following cases:
a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal
proceedings before the Court of Appeal.
b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
c) Decisions in any civil or criminal proceedings on question as to whether any of the provisions of chapter iv of this Constitution has been, is being or is likely to be, contravened in relation to any person;
d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.
e) Decisions on any question:
i Whether any person has been validly elected to the office of President or Vice- President under this Constitution,
ii Whether the term of office of President or Vice-President has ceased,
iii Whether the office of President or Vice President has become vacant; and for Such other cases as may be prescribed by an Act of the National Assembly”
In all other circumstances than those mentioned under section 233 (2), an appeal shall lie from decisions of the court of Appeal irrespective of whether it is final or interlocutory, to the Supreme Court with leave of either this court or the Supreme Court. Section 233 (3) clearly states thus:
“subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
The Supreme Court has in the case of Abidoye v Alawode (2001) 3 S.C. at 7 per Onu, JSC aptly held thus:
“A careful examination of the only ground of appeal in this case set out above and particulars of error reveal that the appellants are questioning the evaluation of the facts by the lower courts before the application of the law and therefore the ground involves a question of mixed law and fact. As this Court has pointed out in several decided cases such as in Ogbechie & ors v Onochie & ors (1986) 2 NWLR (part 23) 484 at 488 what is important in determining whether a ground of appeal involved questions of law or fact or mixed law and fact, is not its cognomen, nor its designation as “Error in Law.” It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves. See also United Bank for Africa Ltd v Stahibau Gambh & Co. (1989) 3 NWLR (part 110) 374 at 377 and 410 and Ojemen v Momodu (1983) 3 SC. 173.
As the only ground filed attacking the decision of the court below is of mixed law and fact and apparently neither the leave of the court below nor that of this Court was sought and obtained as required by section 213 (2) and 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979 (it is only where an appeal is on ground of law alone that an appellant can appeal as of right from the Court of Appeal to the Supreme Court without leave).
I take the firm view that the appeal is incompetent and should be struck out. The only issue formulated thereon to which I will shortly come, is also incompetent and should be struck out.”
In Opuiyo v Omoniwari (supra) the learned justices of the Supreme Court were unanimous on the constitutional requirement for leave in an appeal from the decision of the Court of Appeal to the Supreme Court on grounds of fact or mixed law and fact as in the instant case. Oguntade, JSC has observed in the leading judgment at page 431 paragraphs C-D thus:
“The result of all that I have said above is that all the grounds of appeal raised by the plaintiffs/appellants being of fact and or mixed law and fact ought not to have been raised without the leave of this court or the court below, it is now settled law that this court cannot hear an appeal on grounds of mixed law and fact unless leave of the court or the Court of Appeal has been obtained.”
Niki Tobi, JSC similarly observed, at page 434 paragraphs D-E as follows:
“Let me take the objection and it is on the grounds of appeal and the need to obtain leave of court. It appears to me that all the grounds of appeal deal with evaluation of evidence and that is clearly a matter of fact or at best mixed law and fact for which leave of court is necessary in view of the fact that leave was not sought, I come to the inescapable conclusion that the appeal is incompetent. It is hereby struck out.”
Aloma Mariam Mukhtar, JSC expressed similar views as follows:
“At any rate learned counsel canvassed argument in respect of the issue and sought a dismissal of the appeal in the absence of leave to appeal by the court of Appeal or this court, as required by the law, the grounds of appeal being those of mixed law and fact’ I agree with my learned brother Oguntade, JSC that the appeal becomes incompetent because of the lapse or omission, and deserves to be struck out.”
Onnoghen, JSC made a similar observation at pages 439-440, paragraphs HB in the following words:
“Looking closely at the grounds of appeal contained in the notice of appeal at pages 119-122 of the record coupled with the two issues formulated by learned counsel for the appellants earlier reproduced in this judgment, it is very clear that the complaints in the grounds of appeal are on facts and mixed law and facts. It is settled law that for there to be a valid or competent appeal based on facts and/or mixed law and facts, the leave of either the lower court or the appellate court is required before filing the notice and grounds of such appeal. I have carefully gone through the record and there is no evidence that any leave was obtained by the appellants before filing the instant appeal. In the circumstance it is my view that the appeal is, for that reasoning competent and liable to be struck out.”
chukwuma-Eneh, JSC also observed at page 444 paragraphs F-G as follows:
“The foregoing resume shows clearly that none of the 3rd grounds of appeal is truly a question of law. As all the grounds of appeal; 3 of them; raise issues of mixed law and facts, leave under 233 (3) is required. Since the notice of appeal does not carry any ground of appeal on question of law the instant notice of appeal is incompetent and so also the appeal itself. The appeal is accordingly struck out.”
The Supreme Court cannot hear an appeal on grounds of fact or mixed law and fact unless leave of the court of Appeal or the Supreme Court is first sought for and obtained. The applicant has therefore rightly, in my view, sought for leave to appear to the Supreme Court against the decision of this court. The finality of such decision is immaterial. Once the nature of the appeal is outside the scope of section 233 (2) of the constitution, subsection (3) of the same provision automatically applies in circumstances under which leave is a necessary prerequisite to filing of a valid and competent notice of appeal. In an application for leave to appeal, the court has a duty to consider the grounds in the proposed notice of appeal attached to the further affidavit as exhibit c and see if such grounds are substantial and arguable. In the instant application, the grounds of appeal are arguable. The respondents have also not denied the substantiality of the grounds in the proposed notice of appeal. This scores a pass mark for grant of leave to the applicant to appeal to the Supreme Court. There seems to be nothing else hindering the success of this application. In E.F.P. Co. Ltd v N.D.I.C. (2007) 9 NWLR (pt. 1039) 216 at 239 paragraphs D-G, Onnoghen, JSC observed thus:
“The duty of an appellate court in the consideration of grounds of appeal proposed by an appellant and filed in support of an application for leave to appeal is limited to seeking whether the grounds of appeal are substantial and reveal arguable grounds. Therefore, it is not the duty of the court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory appeal were good and arguable grounds, especially as they were hinged on the jurisdiction of the trial court.”
From the foregoing I cannot but entirely agree with the applicant that leave is necessary to appeal on grounds of fact and mixed law and fact from this court to the Supreme Court. The application was well taken and succeeds per force. The respondents, objection lacks merit and is hereby over ruled. Leave is accordingly granted to the applicant to appeal to the Supreme Court on grounds of fact and mixed law and fact against the judgment of this court delivered on the 17th December 2010 in appeal No. CA/L/673/2005.
There shall be no order as to costs.
CIARA BATA OGUNBIYI, J.C.A.: I agree with the conclusion arrived thereat in the lead ruling by my brother Mukhtar (JCA) that where a ground of appeal is based on either pure facts and or mixed law and facts, the leave of this court becomes necessary. The submission by the learned respondents’ counsel, convincing it might sound, is however grossly misconceived that the application is either unnecessary or mere academic exercise. My brother has adequately dealt with the application, the reasoning which I also endorse as mine and make orders in the same terms as the lead ruling inclusive of that made as to costs.
MOHAMMED A. DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the lead Ruling of my learned senior brother Mukhtar JCA just delivered and agree with him that leave be granted to the Applicant to appeal to the Supreme Court on grounds of facts and mixed law and facts which form the basis of the Grounds of Appeal contained in the Notice of Appeal challenging the decision of this court delivered on 17th December, 2010.
By the provisions of section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999, all appeals to the Supreme Court, shall be with leave of this court or of the Supreme court and subject only to section 233 (2) of the,1999 Constitution.
The said sub 2 section of section 233 of the 1999 constitution sets out situations or instances wherein appeal shall lie as of right to the Supreme Court.
The words “subject to” as appearing at section 233 (3) of the said constitution, puts a limitation or qualification to the section, that is to say that apart from or except as provided in the sub section mentioned earlier, the right of appeal to the Supreme Court shall only by leave in all instances not indicated or limited earlier.
In the instant application, it is obvious from Exhibit “C” i.e. the Notice of Appeal annexed to the supporting affidavit seeking leave to appeal, that the grounds of appeal raise substantially grounds of facts and mixed law and facts, I agree, therefore, with my Lord when he said in his lead Ruling at page 10 thereof that the grounds are clearly based on facts and or mixed law and facts purely and leave of this court is necessary. See OPUIYO v. ONONIWARI (2007) 76 NWLR (pt. 7060) 475 at 437.
On the unassailable affidavit evidence before this court in support of the motion and the decisions relied upon by the Applicant, I agree as in the lead Ruling that this application has merit and should succeed. The challenge to the propriety and necessity of the application, has no constitutional anchor, therefore, and must fail. It fails.
Accordingly, leave is also granted by me, and in agreement with the lead Ruling for the applicant to appeal against the Judgment of this court delivered in Appeal No.CA/L/673/05 on 10th December, 2010. I also abide by the order relating to costs as made in the said Ruling.
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Appearances
Vitalis AhaotuFor Appellant
AND
Nojim Tairu,
N. OkedinachiFor Respondent
