FORT ROYAL HOMES LTD & ANOR v. EFCC & ANOR (2021)

FORT ROYAL HOMES LTD & ANOR v. EFCC & ANOR

(2021) LCN/4964(SC)

In The Supreme Court

On Friday, January 29, 2021

SC.635/2017

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Between

1. FORT ROYAL HOMES LIMITED 2. MR. OTUNBA COLLINS ADEWUNMI APPELANT(S)

And

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) 2. SUNTRUST SAVINGS AND LOANS LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW ON GROUNDS OF APPEAL ON MIXED LAW AND FACTS

I agree with His Lordship’s view that the ground of appeal is incompetent being a ground of mixed law and fact, which cannot be raised without leave of either the Court below or this Court, Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence grounds of appeal challenging such conclusions are grounds of mixed law and fact. See Ajayi and Anor v Omorogbe (1993) LPELR -290 (SC) 23; F-G; MDPDT v Okonkwo [2001] 3 SC 76; ACB Plc v Obmiami Brick and Stone Nigeria Ltd [1993] 6 SCNJ 98.
As this Court held in ACB Plc v Obmiami Brick and Stone Nigeria Ltd (1993) LPELR – 206 (SC) 27; E-F:
It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed 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, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion. PER NWEZE, J.S.C.

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division or Court below or lower Court, Coram: A. Aboki, T.E.A. Agim JCA (as they then were) and M. Mustapha JCA, delivered on the 11th day of July, 2017 affirming the Ruling of the trial Court delivered on 16/01/2013.

BACKGROUND FACTS
By a motion on notice dated 19th day of September, 2012 and filed on the same day, the appellants brought an action against the respondents in the enforcement of their fundamental human rights seeking the following reliefs:
i. A DECLARATION that the arrest and detention of the applicant on the 18th day of September, 2012 for no reasonable ground is unlawful, illegal, unconstitutional and a gross violation of the Applicant’s fundamental rights to personal liberty by the Respondents.
ii. A DECLARATION that the denial of the applicant of the right to consult with his legal practitioner after his arrest on the 18th day of September, 2012 is unlawful, illegal, unconstitutional and a gross violation of the Applicant’s fundamental rights to personal liberty by the Respondents.

iii. AN ORDER of this honourable Court restraining the 2nd Respondent from further arresting, detaining and/or threatening to arrest the 2nd Applicant in respect of the same or similar subject matter not being an offence known to any law in Nigeria criminal jurisprudence.
iv. AN ORDER of this honourable Court awarding against 2nd Respondent the sum of N50,000,000.00 (Fifty Million Naira) being compensation for the unlawful, illegal, unconstitutional and gross violation of the 2nd Applicant’s fundamental rights to personal liberty and dignity of human person at the instance of the Respondent.
v. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

In support of the originating motion on notice are statement pursuant to Order 2 Rule 3 of the Fundamental Human Rights (Enforcement Procedure) Rules 2009, an Affidavit and a written address consistent with the provisions of the Fundamental Human Rights (Enforcement Procedure) Rules of 2009.

FACTS BRIEFLY STATED
By a motion on notice dated 19th September, 2012, the appellant brought an action against the respondents for enforcement of

their fundamental rights seeking the following reliefs:
“I. DECLARATION that the arrest and detention of the Applicant on the 18th day of September, 2012 for no reasonable ground is unlawful, illegal, unconstitutional and a gross violation of the applicant’s fundamental rights to personal liberty by the Respondents.
II. A DECLARATION that the denial of the Applicant of the right to consult with his legal practitioner after his arrest on the 18th day of September, 2012 is unlawful, illegal unconstitutional and a gross violation of the applicant’s fundamental rights to personal liberty by the Respondents.
III. AN ORDER of this honourable Court restraining and/or threatening to arrest the 2nd applicant in respect of the same or similar subject matter not being an offence known to any law in Nigerian Criminal jurisprudence.
IV. AN ORDER of this honourable Court awarded against the 2nd Respondent the sum of N50,000,000.00 (Fifty Million Naira) being compensation for the unlawful, illegal, unconstitutional and gross violation of the 2nd applicant’s fundamental rights to personal liberty and dignity of human person at the instance of the Respondent.

AND for such further order(s) as this honourable Court may deem fit to make in the circumstances of this case.”At the trial, the Court found that the passport photograph attached to the affidavit in support of the Appellants’ application and the one attached to the further and better affidavit both deposed to by the 2nd Appellant were not the same. The Court therefore discountenanced both affidavits and entered judgment in favour of the Respondents in this suit. Dissatisfied with the decision, the Appellants appealed to the Court of Appeal. At the Court below, the Court held that the trial Court should have treated the difference in passport photograph as an irregularity and therefore the trial Court was wrong when it discountenanced the affidavit in support, and further and better affidavit of the 2nd Appellant. The Court below evaluated the depositions in the affidavit, and further and better affidavit of their fundamental rights.
Dissatisfied with the decision of the Court below, the Appellants have now appealed to the Supreme Court.

On the 5/11/2020, date of hearing, learned counsel for the appellant, Dr. Soni Ajala

adopted the brief of argument filed on 12/2/2018 and deemed filed on 14/2/2018. In the brief was distilled a lone issue which is thus:-
“Whether the decision of the Court below dismissing the appeal of the Appellants after making the finding that the learned trial Court was wrong to have discountenanced the Appellants two affidavit evidence (on ground that the deponents are not same because two different passport photographs of the 2nd Appellant was used) was not perverse in law and thereby liable to be set aside as the Appellants application for enforcement of their fundamental right was not determined on merit.”

Learned counsel for the 1st respondent, Chile Okoroma Esq., adopted the brief filed on 2/7/2018 and deemed filed on 24/10/2019, in which was formulated a single issue, viz:-
“Whether the Court below was right in holding that the 2nd appellant’s fundamental right to personal liberty was not violated by the 1st respondent (Distilled from Ground 1 and 2 of the Grounds of Appeal).”

Learned counsel for the 2nd respondent, Charles Musa Esq., adopted the brief of argument filed on 4/12/2018 and deemed filed on

24/10/2019 and in it was distilled a sole issue thus:-
“Whether the Court below considered the issues and evidence raised by the appellants before it and if there is merit in this appeal. (Grounds 1 and 2 of the Notice of Appeal).”

Before venturing into the submissions of counsel in line with the issues raised, there is a question that must firstly be answered, which is if there is an appeal in the first place. The Court has the right to peruse any document in the Record of Appeal and having done that, chanced on the Notice of Appeal on which the proceedings herein are based.

I shall quote the Notice and Grounds of Appeal including the particulars for ease of reference”
“NOTICE OF APPEAL
ORDER 8, RULE 2, SUPREME COURT RULES
TAKE NOTICE that the Appellants being dissatisfied with the decision of the Court of Appeal Abuja Division contained in the judgment delivered on Tuesday 11th day of July, 2017 in Appeal No. CA/A/211/2013: FORT ROYAL HOMES LIMITED & ANOR vs. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR doth hereby appeal against the said judgment to the Supreme Court upon the grounds set out in paragraph 3

of the Notice and will at the hearing seek the reliefs set out in paragraph 4.
1. AND THE APPELLANTS further state that the names and addresses of the parties directly affected by this appeal are set out in paragraph 5 of this Notice.
2. PART OF THE JUDGMENT OF THE LOWER COMPLAINED OF:
The entire judgment of the Court below.
3. GROUNDS OF APPEAL:
GROUND ONE
The learned Justices of the Court of Appeal erred in Law and came to conclusions adverse to the Appellants when they held that the Appellants have not by way of credible evidence proved that the 2nd Appellant’s fundamental right to personal liberty was compromised by the Respondents.
PARTICULARS OF ERROR
I. The learned Justices of the Court below glossed over unchallenged evidence such as application for bail and bail bond presented by the Appellants and thereby reached a conclusion prejudicial to the Appellants that the Appellants did not prove that the 2nd Respondent breached the fundamental right to personal liberty of the 2nd Appellant.
II. That the learned justices of the Court below failed to properly review judicially and judiciously the exhibits annexed

to the 1st Respondent’s counter affidavit which evidence if properly evaluated by the learned trial Court would have substantially altered the outcome of the proceeding in favour of the Appellants.
III. That the decision of the learned Justices of the Court below failed to meet the end of justice in the suit of the Appellants.
GROUND TWO
The learned Justices of the Court below misdirected themselves in law and thereby occasioned a miscarriage of justice when they failed to properly evaluate the plank of the Appellants appeal as distilled in issue No.2 of the Appellants Brief to wit:-
‘Whether the learned trial judge was right in discountenancing the appellants’ affidavit on the ground of his perceived variation in the passports affixed on both affidavits of the appellants.’
PARTICUALRS OF ERROR
1. It was canvassed on behalf of the Appellants at the Court below that there was no basis in law for the trial Court to discountenance the affidavit and further affidavit of the Appellants on the ground that both affidavits carry different passports which passport photographs of the 2nd Appellant as deponent (taken in different clothing)

The failure of the learned Justices of the Court below to sufficiently address the question of validity or otherwise of same deponent affixing two different passport photographs on his two affidavits did not advance the interest of justice and particularly prejudiced the case of the Appellants.”

The Grounds of Appeal have been labelled grounds of law which do not situate them as pure law instead of grounds of mixed law and facts or of facts since certain parts of the evidence need clarification which they really are. The position necessitated an application for leave to appeal on facts or mixed law and facts and that not having been sought and obtained the validity of the appeal has been called to question in line with Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The simple position in the light of the absence of leave either of the Court below or this Court firstly obtained, the condition precedent not fulfilled nullifies the process earlier termed an appeal.
Therefore the incompetence of the appeal renders any proceedings thereafter a nullity hence the option available right now is to strike out the appeal.
Appeal is struck out.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is no merit in the appeal and should be struck out. I too will strike it out.
Appeal struck out.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading, before now, the draft judgment which my Lord, Mary Ukaego Peter-Odili, JSC, delivered now. I agree with His Lordship’s view that the ground of appeal is incompetent being a ground of mixed law and fact, which cannot be raised without leave of either the Court below or this Court, Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence grounds of appeal challenging such conclusions are grounds of mixed law and fact. See Ajayi and Anor v Omorogbe (1993) LPELR -290 (SC) 23; F-G;

MDPDT v Okonkwo [2001] 3 SC 76; ACB Plc v Obmiami Brick and Stone Nigeria Ltd [1993] 6 SCNJ 98.
As this Court held in ACB Plc v Obmiami Brick and Stone Nigeria Ltd (1993) LPELR – 206 (SC) 27; E-F:
It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed 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, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion.

It is for these, and the more elaborate reasons in the leading judgment that I too shall strike out this appeal for being incompetent.
Appeal struck out.

EJEMBI EKO, J.S.C.: I had a preview of the judgment just delivered by my learned brother, MARY UKAEGO PETER-ODILI, JSC, in this appeal; and I am in complete agreement that this appeal being incompetent deserves to be, and it is hereby struck out.

The Appellant’s Counsel had erroneously labelled the grounds of appeal as being errors of law

entitling the Appellant to appeal as of right. On that error, this appeal was lodged or brought as of right pursuant to Section 233(2) of the 1999 Constitution, as amended. In substance, the grounds of appeal do not, in actuality, raise any issues of pure law alone. The grounds rather raise issues of mixed law and facts, which by dint of Section 233(3) of the Constitution require leave, first sought and obtained, before filing as a condition precedent. No such leave was sought and obtained. This insubordination of the mandatory provisions of the Constitution renders the appeal illegal, null and void ab initio. And it will not be countenanced.
Appeal struck out.

UWANI MUSA ABBA AJI, J.S.C.: I was privileged to read in advance the draft judgment of my learned brother, Mary Peter-Odili, JSC, just delivered, and I agree that the appeal be struck out.

The Appellants’ Notice of Appeal has 2 grounds christened error in law or misdirection in law, to clothe the appeal with the toga of right of appeal. Nevertheless, the particulars reveal grounds of mixed law and facts. Unfortunately, the Appellant failed to seek

the leave of this Court to activate his appeal.
The retinue of authorities from this Honourable Court is to the effect that the mere fact that an Appellant has described or tagged a ground of appeal as one of law does not ipso facto render it to be so. It has to be so in substance and in content. See Per CHUKWUMA-ENEH, J.S.C. in ABUBAKAR V. WAZIRI & ORS (2008) LPELR-54(SC) (P. 34, PARAS. E-F), BRITTANIA-U (NIG) LTD V. SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR-40007(SC) (PP. 52-54, PARAS. E-A).
Similarly, where the ground of Appeal is of fact or mixed law and fact, leave of Court must be sought before an appeal lodged on those grounds. Where no such leave is shown to have been sought and granted, the ground shall be declared incompetent and struck out. See per SULEIMAN GALADIMA, JSC in AKIN AKINYEMI V. ODU’A INVESTMENT COMPANY LIMITED (2012) LPELR-8270(SC) (PP. 37-38, PARAS. F-B).
In effect, this appeal is struck out.

Appearances: