HUSSEIN MANSOUR v. CARNCO FOODS (NIGERIA) LIMTED (2014)

HUSSEIN MANSOUR v. CARNCO FOODS (NIGERIA) LIMTED

(2014)LCN/6810(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of January, 2014

CA/L/25/2009

RATIO

WHAT MAKES A GROUND OF APPEAL A GROUND OF LAW OR FACT?

“In determining whether a ground of appeal involves questions of law or of mixed law and fact or simply fact, what is required is for the grounds and the particulars to be comprehensively examined to identify or appraise oneself with the substance of the complaint.” Per CHINWE EUGENIA IYIZOBA, J.C.A.

WHAT WOULD RENDER THE PRELIMINARY OBJECTION INCOMPETENT IS FAILURE?

What would render the preliminary objection incompetent is failure to file same at least three clear days before the hearing of the appeal. Adebayo v. Oniyide (2012) LPELR-7984. In the very recent case of Okorocha v. PDP & Ors Suit No. SC 445/2012 delivered by the SC on 24/1/14 and reported in (2014) 1 LPELR-SC.445/2012, the SC considering Order 2 Rule 9(1) of the SC Rules identical to Order 10 Rule 1 of the Court of Appeal Rules 2011 observed per Ogunbiyi, JSC

“……. I seek to add also that by the use of the word shall within the phrase “shall give the appellant three clear days notice thereof before the hearing”, it denotes the stipulation therein as mandatory and the compliance therewith cannot be waived. On a communal reading of the entire brief of argument or response by the 4th respondent’s counsel, there is no indication that the 4th respondent either gave any notice of preliminary objection against the competence of the appeal filed by the appellant or gave three clear days notice thereof before the hearing of the appeal. I further wish to state as a matter of fact that the raising of such preliminary objection was never at any time considered as a point of argument by the 4th Respondent’s counsel at the hearing of the appeal. A preliminary objection of the nature in issue is surely surreptitious, and tending to throw a surprise at the appellant. This is not allowed by law, as it is coming through the back door. This is notwithstanding that the appellant filed a response.”Per CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

HUSSEIN MANSOUR Appellant(s)

AND

CARNCO FOODS (NIG.) LIMTED Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant herein, Hussein Mansour is the Chairman/Chief Executive of Nigerian Weaving, Spinning and Printing Company Ltd (otherwise known as Newspin Ltd). On 3/2/99 Afribank Nigeria Plc appointed Prince Adesupo Adetona a Receiver over the Assets of Newspin Ltd. The Receiver commenced the process of assigning (by sub-lease) the unexpired residue of Newspin’s interest in Plot 14 Iganmu Industrial Estate Surulere, Lagos to the present Respondent Carnco Foods (Nig) Ltd. Newspin commenced Suit No: FHC/L/CS/992/02 at the Federal High Court, seeking a Declaration inter-alia that the Receivership in question was limited to only movable Assets of Newspin and certainly did not extend to Newspin’s immovable property at Plot 14 Iganmu Industrial Estate Surulere, Lagos. The present Appellant, Hussein Mansour with Newspin as the 2nd Claimant filed Suit No: ID/701/2005 at the High Court of Lagos State, Ikeja judicial Division against Carnco Foods (Nig) Ltd as 1st Defendant and the Receiver Prince Adesupo Adetona as the 2nd Defendant.
In the suit at the High Court the Claimants claimed against the Defendants as follows:
“1. A declaration that the purported Deed of Sublease made by the 2nd Defendant in the name, but without the consent and authority of the 2nd Claimant purportedly granting to the 1st Defendant eighteen (18) years sublease of the Claimants leasehold property at Plot 14, Iganmu Industrial Estate, Surulere, Lagos is null and void and of no effect whatsoever.
2. An order setting aside the purported Sublease of the 2nd Claimant’s leasehold property by the 2nd Defendant.
3. The sum of N100 million being general and special damages against the Defendants for various acts of trespass and interference with the claimants’ exclusive possession or right to exclusive possession of Plot 14, Iganmu Industrial Estate, Surulere, Lagos.
4. An order of perpetual injunction restraining the defendants, either by itself, servants, agents, privies or otherwise howsoever from committing further acts of trespass and interference in respect of the said property.

The 1st Defendant Carnco Foods Nigeria Ltd. counter-claimed for:
(a) A declaration that sequel to the agreement made between the 2nd claimant and the 1st Defendant in 2001 for the sublease of the 2nd Claimant’s leasehold property at Plot 14 Iganmu Industrial Estate, Surulere, Lagos the terms of which are stipulated in the 2nd Claimant’s letter of December 20, 2001 the 1st Defendant is entitled to remain in peaceable possession and quiet enjoyment of the property for the period of 18 years covered by the agreement which will expire on 28th February, 2019 without any interference in any manner whatsoever by the 1st Claimant or any Director, shareholder, Official Employee or Agent of the Claimant.
(b) An order of perpetual injunction restraining the 1st claimant his agents servants, privies and or any Director Shareholder office Employee or agent of the 2nd Claimant from interfering in any manner whatsoever with the 1st Defendant in its peaceable possession and quiet enjoyment of the property at Plot 14 Iganmu Industrial Estate, Surulere, Lagos until 18 years covered by the Agreement for the sublease of the property made between 2nd Claimant and the 1st Defendant as stated in the 2nd Claimant’s letter of December 20, 2001.
(c) In the alternative 1st Defendant claims the refund of the sum of N36,000,000.00 (Thirty-six million naira) being money paid by the 1st Defendant to the 2nd Claimant through its receiver for its use and benefit.
(d) Interest at bank prime lending rate as at December 2001 on the said sum from December, 2001 until judgment.
(e) Costs
(f) Solicitors fees being N3,000,000.00

Following a preliminary objection on the 27th of October, 2006 Hon. Justice Candide-Johnson struck-out the main suit that is the claims of the Claimants (Newspin Ltd and Hussein Mansour) in suit No: ID/701/2005 on the grounds of jurisdiction and locus standi. The learned trial Judge held that the claims which involved a dispute over the Receiver/managers mandate was a CAMA (Companies and Allied Matter Act) related dispute captured by section 251(1) (e) of the 1999 Constitution of the Federal Republic of Nigeria. The Court proceeded to strike-out Newspin (the 2nd Claimant) and the Receiver (the 2nd Defendant from the Suit, leaving Hussein Mansour (the present Appellant) and Carnco Foods Nigeria Ltd (the present Respondent) as the only parties in the subsisting action, the counter-claim.

The Appellant/Defendant to the counterclaim by motion on notice dated 20/11/07 challenged the jurisdiction of the court to hear and determine the counter claim on the ground that it is the Federal High Court and not the High Court that is competent to entertain the subject matter of the counter claim. He contended that the Counter-claim involved a dispute over the Receiver’s mandates and was therefore a CAMA related dispute for the Federal High court only by virtue of section 251(1) (e) of the constitution of the Federal Republic of Nigeria 1999 and secondly that the Counter-claim was an abuse of process having regard to the pendency of Suit No: FHC/L/CS/992/02. The Counter-claimant/Respondent filed a counter affidavit in opposition to the application in which he deposed to certain facts, not denied by any of the parties. He deposed that the Appellant herein had filed several suits in different courts on the same subject matter particularly suit No. FHC/L/CS/992/02; Suit No LD/1032/03; Suit No. M/330/05 and now the present suit No. ID/701/05 all with knowledge of the earlier suits. In a considered Ruling delivered on 30/10/08, the learned trial Judge dismissed the Appellant’s application and held that the subject matter of the counter-claim was within the jurisdiction of the High Court and not the Federal High Court. Dissatisfied with this decision, the Appellant filed a notice of appeal with two grounds of appeal out of which two issues were distilled as follows:
a) Whether the Respondent’s Counter-claim in Suit No: ID/701/2005 fell within the ambit of the exclusive Jurisdiction of the Federal High Court as defined in section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999.
b) Whether the Respondent’s Counter-claim in Suit No: ID/701/2005 was an abuse of process.

In the Respondent’s brief of argument, the issues set out are same as those of the Appellant. This appeal was heard on 26/11/3. During the hearing, after Mr. Ajomo for the appellant had adopted his brief of argument and urged the court to allow the appeal and set aside the decision of the lower court, Chief Agbamuche for the Respondent adopted his brief and thereafter informed the court that he filed a notice of preliminary objection on 6/5/11 which he argued at pages 1 & 3 of the brief. In reply, Mr. Ajomo submitted that the preliminary objection ought to have been moved before the adoption of the Appellant’s brief; that not having done so; the Respondent is deemed to have abandoned the objection. Chief Agbamuche in his response stated that the contention of the Appellant is over taken by recent development in the law and that once notice is given and the preliminary objection is argued in the brief, it takes care of the issue.

There is no doubt that as the name suggests, the purpose of a preliminary objection during the hearing of an appeal is to terminate or stop the hearing of the appeal. It follows that the objection ought to be raised before the appeal is heard. It serves no purpose after the appeal has been heard to now begin to raise objection to its hearing. But in my view, this rule of practice held sway and had real meaning in those days when the parties do not file written addresses and actually present oral arguments. Order 10 Rule 1 of the Court of Appeal Rules 2011 provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection. Order 10 Rule 3 provides that if the Respondent fails to comply the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such order as it thinks fit. In these days of filing of written briefs, what is important is that the notice of preliminary objection be filed three clear days before the hearing of the appeal in order to give the Appellant notice and opportunity to react to the objection. If such notice is given and the preliminary objection is argued in the Respondent’s brief, I think it should not matter that the appellant adopted his written brief before the Respondent who in the process of adopting his brief now refers to the preliminary objection. The facts are all there in the briefs and no one has been taken by surprise. More so when the Appellant filed a reply brief in which he addressed fully the preliminary objection. Doing otherwise would indeed be a clear case of paying undue regard to technicalities at the expense of justice. What would render the preliminary objection incompetent is failure to file same at least three clear days before the hearing of the appeal. Adebayo v. Oniyide (2012) LPELR-7984. In the very recent case of Okorocha v. PDP & Ors Suit No. SC 445/2012 delivered by the SC on 24/1/14 and reported in (2014) 1 LPELR-SC.445/2012, the SC considering Order 2 Rule 9(1) of the SC Rules identical to Order 10 Rule 1 of the Court of Appeal Rules 2011 observed per Ogunbiyi, JSC
“……. I seek to add also that by the use of the word shall within the phrase “shall give the appellant three clear days notice thereof before the hearing”, it denotes the stipulation therein as mandatory and the compliance therewith cannot be waived. On a communal reading of the entire brief of argument or response by the 4th respondent’s counsel, there is no indication that the 4th respondent either gave any notice of preliminary objection against the competence of the appeal filed by the appellant or gave three clear days notice thereof before the hearing of the appeal. I further wish to state as a matter of fact that the raising of such preliminary objection was never at any time considered as a point of argument by the 4th Respondent’s counsel at the hearing of the appeal. A preliminary objection of the nature in issue is surely surreptitious, and tending to throw a surprise at the appellant. This is not allowed by law, as it is coming through the back door. This is notwithstanding that the appellant filed a response.”
It is therefore failure to give three days notice of intention to rely on a preliminary objection to the hearing of the appeal that would surely render the objection incompetent.

Further, in many of the cases where the preliminary objection was deemed abandoned for failure by the Respondent to move it, the objection was not moved at all. Nigeria Laboratory Corp. P.M.B. Ltd (2012) 15 NWLR (Pt. 1324) 505 @ 518 A-B. In the instant case, our attention has been called to the preliminary objection by the Respondent, though after the Appellant had adopted his brief. In the circumstances, the preliminary objection cannot be said to have been abandoned.

More importantly, if the preliminary objection has to do with jurisdiction of the court to hear the appeal, it is trite that an issue of jurisdiction can be taken up at any stage of the proceedings and can even be raised by the court suo motu. Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1 @ 15-18. It follows that all these rules will be thrown aboard once the preliminary objection touches on the jurisdiction of the court to hear the appeal.

The Respondent herein had filed his notice of preliminary objection on the 6th of May, 2011. This appeal was heard on 26/11/13, two and half years after. The appellant in his reply brief addressed fully the points raised in the preliminary objection. Besides, the objection relates to whether or not leave ought to have been obtained before filing the notice of appeal. It is an issue that touches on the jurisdiction of the court to hear the appeal. Mr. Ajomo’s objection is consequently misconceived and is hereby overruled. I shall proceed to consider the preliminary objection.

PRELIMINARY OBJECTION:
The contention of the Respondent in his preliminary objection is that the two grounds of appeal in the Appellant’s notice of appeal are grounds of mixed law and facts and that leave is required before the notice of appeal can be filed. Counsel relied on Section 241(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999. Counsel submitted that it is by now trite law that once grounds of appeal against interlocutory decisions are of facts or mixed law and facts, they can only be filed at the Court of Appeal with leave of either the High Court or the Court of Appeal. He cited Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718. Counsel submitted that where leave is not obtained, the appeal is incompetent and is liable to be struck out. N.I.C. v. Acen Insurance Co. Ltd & 92 Ors (2007) 6 NWLR (Pt. 1031) 589 @ 601.

Chief Agbamuche argued that the key question in this appeal is the resolution of the question whether or not the grounds of appeal herein fall within the definition of grounds of mixed law and facts. He submitted that in order to resolve this question, the law requires that each ground should be examined with its particulars. He referred to the Supreme Court decision in Abioye v. Alawode (2001) 6 NWLR (Pt. 709) 468 where it was held that where a ground of appeal and particulars of error reveals that the appellant is questioning the evaluation of the facts by the lower court before application of the law, then it is a ground of mixed law and facts. Counsel submitted that an examination of the grounds of appeal and its particulars at pages 78-80 of the record of appeal would reveal that the appellant is questioning the validity of the evaluation of material facts in the pleadings by the learned trial judge.

Counsel’s contention is that the learned trial judge of the court below wrongly applied the provisions of Section 251 (e) of the 1999 Constitution to the facts of the case. Counsel submitted that ground 1 based on the guidelines set by the Supreme Court in Abioye v. Alawode (supra) is clearly that of mixed law and fact.

Mr. Agbamuche on his part submitted that Ground 2 of the grounds of appeal invites a consideration of the material facts in the pleadings of the counter claim and the material facts in the pleadings in a prior suit at the Federal High Court. He contended that the Notice of Appeal alleged that the learned trial judge in the Court below ERRONEOUSLY found after looking at the two pleadings that the substantive questions for determination were not the same in the two suits and thereafter went on to misapply the law by finding that there was no abuse of court process. Counsel submitted that it is clearly a ground of mixed law and facts.

Counsel finally submitted that there is no record of any application either at the court below or in the Court of Appeal for leave to appeal on grounds of mixed law and facts. The grounds of appeal and the issues formulated therefrom are incompetent and are bound to be struck out. Counsel relying on Raymond Inyang v. Engr. Dr. Maurice A. Ebong (2002) NWLR (Pt. 751) 284 urged the Court to strike out the grounds of appeal and the entire appeal.
In his reply brief Mr. Ajomo for the Appellants argued strenuously that the grounds of appeal are grounds of law and not of mixed law and facts. He relied on the Supreme Court case of Comax Limited v. N.A.B. Limited (197) 3 NWLR (4. 496) 643 @ 686 affirming the dictum of Nnaemeka-Agu, JSC in Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 @ 744-745 and the dictum of Eso, JSC in Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 @ 491 regarding the series of classifications of grounds which are generally accepted and recognized as grounds of law. Counsel examined the two grounds of appeal here and submitted that they fall within those categories as grounds of law and urged the court to strike out the preliminary objection as unmeritorious.

I shall begin the resolution of this by setting out the relevant provision of the Constitution. Section 241 of the CFRN 1999 provides:
“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) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or the High Court has imposed a sentence of death;
(f) …………
242 (1) Subject to the provisions of Section 241 of the 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.”
From the above provisions of the Constitution it is not in doubt and the parties are in agreement that where the ground of appeal concerns questions of facts or mixed law and facts, leave of the Federal High Court or the High Court or the Court of Appeal is necessary. The next question is when is a ground of appeal said to be one of mixed law and facts? In the case of Molegbemi v. Ajayi (2011) LPELR-4501 the court of Appeal observed:
“The determination of whether a ground of appeal is one of law, mixed law and facts, and facts simpliciter is not always an easy one. What is required is for the court determining same to thoroughly examine the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding of the lower court of the law or a misapplication of the law to the facts already proved or admitted, (underlining mine) in which case it would be a question of law or it is one that would require questioning the evaluation of facts by the lower court before application of the law, in which case it would amount to a question of mixed law and facts. See Iwueke v. I.B.C. (2005) 17 NWLR (Pt. 955) 447; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Total Int. Ltd v. Awogboro (1994) 4 NWLR (Pt. 337) 147; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 and First Fuels Ltd v. NNPC (2007) 2 NWLR (Pt. 1018) 276. Where the ground is an invitation to the Appellate court to investigate the existence or otherwise of certain facts made by the trial court or where it questions the evaluation of the evidence tendered then it is a ground of fact or at best a ground of mixed law and fact. In other words, where a ground of appeal is a complaint on the findings of the trial court based on evidence led at the trial or the evaluation of evidence by the trial court, it is purely a ground of fact. See Hassan v. Atanyi (2002) 8 NWLR (Pt. 770) 582. In deciding whether a ground of appeal is one of law along, mixed law and facts or of facts simpliciter the court will be required to read the ground of appeal together with the particulars as a whole. The fact that a ground of appeal has been “tagged” in a particular way does not make it one which it portends to be. See Metal Constr. (WA) Ltd v. Migliore (1990) 1 NWLR (Pt. 126) 299; Oba Toyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531 and Falana v. Bello (1995) 9 NWLR (Pt. 418) 182 @ 189 – 190.”

Again in the recent case of Okoracha v. PDP & Suit No. SC 445/2012 delivered by the SC on 24/1/14 and reported in (2014) 1 LPELR-SC. 445/2012, the Supreme Court Ogunbiyi, JSC observed:
“The question, what is a ground of law, has been a subject of controversy and discussion in numerous cases. This court had, for instance laid down the general principles in making the distinction between different types of grounds of appeal. Some of these principles have been elucidated in the case of Calabar Co-op. Ltd & 2 Ors v. Ekpo (2009) 1-2 SC 229 at 273-275 where the following instances were held as grounds of pure law: a. where a ground complains of misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law. b. Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. c. Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground. d. Where a trial court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to the Court of Appeal which alleges misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law not of fact. e. Where the appeal court interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of Appeal is a ground of law not fact. For purposes of further reinforcement, more classifications were identified in the cases of F.B.N. v. N.A.B. Ltd (2010) 15 NWLR (Pt. 1216) 247 at 291-292, Comex Ltd. v. N.A.B. Ltd (1997) 3 NWLR (Pt. 496) 643 at 656 – 657 and Ajuwa v. S.P.D.C.N. Ltd (2011) 18 NWLR (Pt. 1279) p. 822-823.”

In the case of Abioye v. Alawode (supra) cited by learned counsel for the Respondent, the Supreme Court held that where a ground of appeal and the particulars of error reveal that the appellant is questioning the evaluation of the facts by the lower court before the application of the law, then it is a ground of mixed law and facts. Then is because a consideration of the ground in the light of the particulars will engage the court in an evaluation of facts in the appeal.

In his reply brief, Mr. Ajomo had set out ground 1 without the particulars and submitted that it is a ground of law because it simply calls for interpretation of a Statute vis-a-vis the claim in the pleadings. With all due respect to learned counsel, the authorities referred to above make it clear that the ground of appeal must be considered together with its particulars in determining whether it is a ground of law or one of mixed law and fact. I shall set out in full the ground and its particulars:
“(1) The Learned Trial Judge, having regard to the pleading of the counter claimant, misconstrued the subject-matter of the counter claimant’s claim and wrongly excluded section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999 as not affecting his jurisdiction.
PARTICULARS
(a) The Counter-claim relates to the validity of the Agreement made by the Receiver, Prince Adetona for and on behalf of Newspin Ltd with the Counter-claimant.
(b) By extension, the Counter-claim has to do with the management of Newspin Ltd and its assets together with the various obligations and claims arising from the conduct of prince Adetona as Receiver of Newspin Ltd.
(c) In accordance with settled principles and practice the issues in the counter-claim fall within the exclusive jurisdiction of the Federal High Court vide section 251(1) (e) of the Constitution of the Federal Republic of Nigeria 1999.

This first ground of appeal standing alone without its particulars is clearly a ground of pure law as it comes clearly under (b) and (c) in the dictum of Ogunbiyi above in Okorochas case. But when it is read together with its particulars, it look as if the Appeal Court is expected to consider the pleadings in the counterclaim, the Agreement made by the Receiver, Prince Adetona for and on behalf of Newspin Ltd with the Counter-claimant with regard to the management of Newspin Ltd and its assets together with the various obligations and claims arising from the conduct of Prince Adetona as Receiver of Newspin Ltd to enable it decide whether the lower court had jurisdiction to entertain the counter claim. These facts are disputed facts, not yet settled. For example, the contention of the Appellant is that the Receiver did not have the power to deal with the immovable assets of Newspin Ltd, which fact is disputed by the Receiver. The ground of appeal when read together with its particulars is clearly one of mixed law and facts. The same applies with respect to the second ground of appeal:
“(2) The Learned trial Judge having regard to the pleadings in the suit before him and those in the prior Federal High Court Action, erroneously found that the substantive questions for determination were not the same in the two suits and thereby wrongly concluded that the counter Claimant’s action was not an abuse of process.
PARTICULARS
(a) The substantive question for determination in the two suits was the same, namely whether or not the Receiver was empowered to deal in any way with the immovable assets of Newspin Ltd

This is certainly not a case of misapplication of the law to facts already proved or admitted or facts set out in the counter claim. The court is being called upon to look at the pleadings in the counterclaim and those in the Federal High Court suit and resolve the issue of whether the two suits deal with the same issue to wit whether or not the Receiver was empowered to deal in any way with the immovable assets of Newspin Ltd. This fact is yet to be determined. The ground is therefore one of mixed law and fact. Chief Agbamuche is right that the Appellant is indeed questioning the evaluation alleged that the learned trial judge erroneously found after looking at the two pleadings that substantive questions for determination were not the same in the two suits and then went on to misapply the law by finding that there was no abuse of court process. In so far as the facts are disputed, the ground is not one of law but of mixed law and facts. It is trite that once grounds of appeal against an interlocutory decision are grounds of mixed law and facts, appeal can only be filed with the leave of either the High Court or the Court of appeal. Nwadike v. Ibekwe (supra). In the event of failure to obtain leave, the appeal is incompetent and liable to be struck out. N.I.C. v. Acen Insurance Co. Ltd & 92 Ors. (2007) 6 NWLR (Pt. 1031) 589 @ 601; Nwadike v. Ibekwe (supra); Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410. The notice of appeal filed in this case without leave is incompetent. The two grounds are the only grounds of the appeal. The grounds and consequently the appeal itself are hereby struck out with N20,000.00 costs in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the succinct judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A. in which I concur and make this little contribution, by way of emphasis.

It is not the christening or labeling of a ground of appeal that makes it a ground of law; or a ground of fact. The ground of appeal in question must be examined with the particulars thereof to ascertain in which category or bracket it falls. See Loveleen Toys Industries Ltd. v. Komolafe (2013) 14 NWLR (Pt. 1375) 542 at 565 per Rhodes-Vivour, J.S.C., thus:-
“In determining whether a ground of appeal involves questions of law or of mixed law and fact or simply fact, what is required is for the grounds and the particulars to be comprehensively examined to identify or appraise oneself with the substance of the complaint.”
The grounds of appeal attacked by the preliminary objection read –
“(1) The Learned Trial Judge, having regard to the pleading of the Counter claimant, misconstrued the subject-matter of the Counter-claimants claim, and wrongly excluded Section 251(1) (e) of the Constitution of the Federal Republic of Nigeria 1999 as not affecting his Jurisdiction.
PARTICULARS
(a) The Counter-claim relates to the validity of the Agreement made by the Receiver, Prince Adetona for and on behalf of Newspin Ltd. with the Counter-claimant.
(b) By extension, the Counter-claim has to do with the management of Newspin Ltd and its assets together with the various obligations and claims arising from the conduct of Prince Adetona as Receiver of Newspin Ltd.
(c) In accordance with settled principles and practice the issues in the counter-claim fall within the exclusive jurisdiction of the Federal High Court vide Section 251(1) (e) of the Constitution of the Federal Republic of Nigeria 1999.
(2) The Learned Trial Judge having regard to the pleadings in the suit before him and those in the prior Federal High Court Action, erroneously found that the substantive questions for determination were not the same in the two suits and thereby wrongly concluded that the counter-claimants Action was not an abuse of process.
PARTICULARS
(a) The substantive question for determination in the two suits was the same, namely whether or not the Receiver was empowered to deal in any way with the immovable assets of Newspin Ltd.”

The particulars of the grounds of appeal (supra) require the examination of some pleaded but yet to be accepted facts to ascertain whether they come within section 251(1) (e) of the Constitution of the Federal Republic of Nigeria 1999, as altered, showing both grounds of appeal (supra) are grounds of mixed law and fact as adroitly expressed in the lead judgment. See Loveteen Toys Industries Ltd. v. Komolafe (supra) at page 565 thus –
“it is a ground of mixed law and fact if the ground complains or questions evaluation of facts before the law was applied.”
See also Akinyemi v. Odu’a Investment and Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209 at 230 – 233, Nwadike and Ors. v. Ibekwe and Ors. (1987) N.S.C.C. (vol. 18) (Pt. 11) 1219.

In effect, the appellant required the leave of the Court to raise and argue the two grounds of appeal (supra) in the appeal. Having not obtained the requisite leave the two grounds of appeal are incompetent and are hereby struck out. See Akinyemi v. Odu’a Investment (supra) at 233, Onigbenden and Anr. v. Balogun (1975) 1 All N.L.R. 233, Oke v. Eke (1982) N.S.C.C. (vol. 13) 547. Erisi and Ors. v. Idika and Ors (1987) N.S.C.C. (vol. 18 – Pt. 11) 1201.

In the result, I too agree with the lead judgment that the preliminary objection has substance and is hereby upheld.

As there is no other ground of appeal to hold the notice of appeal together, the notice of appeal is redundant and is also hereby struck out. The appellant shall pay N20,000 costs to the respondent.

RITA NOSAKHARE PEMU, J.C.A.: I have read in draft the lead Judgment just delivered by my brother CHINWE EUGENIA IYIZOBA, J.C.A., and I agree with her opinion and conclusions.
Where facts are disputed, in any guise, any Ground of Appeal is not one of law but of mixed law and facts, even where the grouse is that the learned trial judge erred in law.
I abide by the consequential order made as to costs.

Appearances

I. O. Ajomo Esq., with
T. O. Ajayi Esq., and
Folake Vera-Cruz (Miss)For Appellant

AND

M. A. Agbamuche Esq., with
Halimah Usman Esq.For Respondent