HYGINUS OKECHUKWU NNUBIA v. INTER CONTINENTAL BANK PLC
(2015)LCN/7887(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of June, 2015
CA/L/315/2012
RATIO
APPEAL: INTERLOCUTORY APPEAL; APPEAL AGAINST AN INTERLOCUTORY RULLING WITHOUT LEAVE OF COURT
Appeal against an interlocutory ruling without leave of court is provided for by Section 241(1) and that is only when the ground of appeal is on a question of law, see MOHAMED V OLAWUNMI (1990) NWLR (Pt.133) 458 and UNION BANK OF NIGERIA PLC v MR. OLUSOJI SOGUNRO (2006) 16 NWLR (Pt.1006) 504 which held as follows:
“It is trite that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (see Section 221(1) of the 1999 Constitution).”
See also CHIEF NWOSU & ANOR V. OFFOR (1997) NWLR (Pt.487) 274 at 282 and AKINWALE v. B.O.N (2001) 4 NWLR (Pt.704) 448 at 455-456. per. YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: GROUND OF APPEAL; THE THREE MEANINGS OF THE TERM QUESTION OF LAW OR GROUND OF LAW AND THE DISTINCTION BETWEEN THE THREE
What then is the ground of appeal raising a question of law? It is noted that courts are agreed that there is a thin line between a ground of law and a ground of mixed law and fact. In distinguishing a ground of law or mixed law and fact, the Supreme Court in the case of EHINLANWO v. OKE (2008) 6-7 S.C. (Pt 11) 123 held thus:
“The term question of law or ground of law can be said to have three meanings to wit:
(i) A question the court is bound to answer in accordance with a Rule of law, the process of answering of which the court would exercise no discretion in whatever manner, it is a question predetermined and authoritatively answered by the law.
(ii) The second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true Rule of law is on a certain matter which question usually arises out of the uncertainty of the law.
(iii) The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the Judge instead of a Jury is question of law, even though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact; but is within the province of the Judge.”
Put in another way, a ground of law is one where facts are not in dispute and the only complaint is as to the way and manner the Lower Court applied the law to these established and undisputed facts, then, the ground is one of law, see METAL CONSTRUCTION (W.A) LTD v. MILGORE & ORS (1990) 1 NWLR (Pt.126) 299. The distinction between the 3 different classes of grounds was also given in the case of ODUMKWE V OJOMATA (2010) 18 NWLR (Pt.1225) 404 where the apex court had this to say:
“The ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the law or a misapplication of the law to the fact admitted or proved it is a ground of law. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact. A ground of appeal on a question of fact is obvious, see OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) 484.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: GROUND OF APPEAL; WHETHER IT IS HOW A PARTY CHRISTEN A GROUND THAT WOULD DETERMINE THE GROUND OR WHAT THE COURT FINDS THE GROUND TO BE
It is trite that it is not how a party christened a ground that would determine the ground as such. The ground must be closely examined to see whether it qualifies as alleged by the appellant. It is therefore not what a party desires to label a ground, it is what the court finds the ground to be upon a careful examination. per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
HYGINUS OKECHUKWU NNUBIA Appellant(s)
AND
INTER CONTINENTAL BANK PLC Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the Lagos High Court of Justice presided over by JUSTICE J.E. OYEFESO delivered on the 7th day of February, 2012 wherein the court refused leave to the appellant to amend his statement of defence. The appellant, aggrieved with the said ruling, appealed to this court by a Notice of Appeal dated 16th February, 2012 setting out 3 grounds of appeal.
The brief facts of this appeal are that the Respondent by a writ of summons initiated a suit against the appellant and 2 others at the High Court asking for foreclosure of a tripartite mortgage. Judgment was obtained against the 2 other defendants at pretrial stage but the court declined to enter judgment against the appellant because the Respondent failed to exhibit the execution page of the Tripartite Legal Mortgage. Thereafter, the Respondent sought leave of court to amend its originating processes which was granted on 23rd November, 2010. The Respondent filed additional documents which now exhibited the execution page of the deed of tripartite mortgage. The Appellant changed counsel and thereafter applied to amend his statement of defence by seeking the following orders:
(i) An Order granting the Defendant/applicant leave to amend his statement of defence, list of witnesses, witnesses’ statement on oath, and list of documents to be relied upon at trial all dated 26th day of July, 2010 in the manner shown and underlined in the Proposed Amended Statement of Defence and Proposed Amended Statement on Oath of Mr. Hyginus Nnubia, the defendant attached as bundle and marked Exhibit A; and
(ii) Such further orders as the Honourable Court may deem fit to make in the circumstances.
The application was taken and the Lower Court in a considered ruling refused the application because the amendment will overreach the Respondent and it was changing the nature of the suit. The appellant dissatisfied with the ruling appealed to this court setting out 3 grounds of appeal.
Appellant filed his brief on the 5/6/12 dated same date while the Respondent filed its brief on the 4/7/12 also dated same date and adopted at the hearing of the appeal.
The appellant formulated 3 issues for determination as follows:
(i) Whether the Appellant is entitled to amend his Statement of Defence at any time or at the time the learned trial Judge refused same, judging from all the circumstances of the case, if the answer is in the affirmative, whether the learned trial Judge is justified in law, to refuse the Appellants prayer as done in the present case.
(ii) Whether the learned trial Judge’s denial of the appellant the right to amend his pleadings in accordance with the clear and mandatory provisions of Order 24 Rule 1 and 2 is tantamount to a denial of his constitutional right to fair hearing as enshrined in Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 OR: Whether the Appellant was not denied fair hearing by failure of the trial Judge to give adequate considerations to all the issues raised by the Appellant before refusing the Appellant the prayers sought.
(iii) Whether the learned trial Judge followed the reasoning of the legal authorities cited in his ruling or deferred to relevant legal authorities.
The Respondent on its part distilled 2 issues namely:
(i) Whether the Lower Court was not justified in law in refusing the Appellant’s motion on Notice dated 11th day of July 2011 based on facts and circumstances of this case.
(ii) Whether the dismissal of the Appellant’s motion on Notice dated 11th day of July 2011 on the ground that it will over reach and change the character of the case amounts to a denial of his Constitutional right of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
However, the Respondent filed a preliminary objection challenging the jurisdiction of this court. The objection must be determined first and if it fails then the main appeal shall be considered on its merit. The preliminary objection taken by the Respondent/Applicant filed on the 4/7/12 prayed the court for the following:
(i) An Order that this Honourable Court lacks jurisdiction to entertain this appeal based on Constitution of the Federal Republic of Nigeria 1999 as amended.
(ii) An Order that this present suit is an abuse of court process and it is scandalous, frivolous and vexations.
And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application is brought state thus:
1. No mandatory prior leave of the Lower Court or of this Honourable court was first sought and obtained before the appellant/Respondent filed the Notice of Appeal dated 16th day of February, 2012.
The objection is accompanied by learned counsel written address which was adopted at the hearing of this appeal.
This Appellant/Respondent opposed the preliminary objection and filed an address which it tagged Appellant/Respondents address in opposition to the Preliminary Objection dated 4th July, 2012. It was adopted at the hearing of the appeal. The Respondent/applicant formulated a sole issue for determination thus:
Whether the leave of this Honourable Court need not be sought and obtained before the Appellant can file her notice of Appeal dated 16th day of February, 2012.
The Appellant/Respondent also formulated a sole issue namely:
Whether the interlocutory appeal before the court is based on facts or on law.
Respondent in arguing the objection submitted that in classifying a ground of appeal, it is not how the appellant labels the ground but what the court upon examination can find the ground to disclose, he relied on NIGERIAN NATIONAL SUPPLY CO. LTD V ESTABLISHMENT SIMA A VADUZ (1990) 7 NWLR (Pt.164) 526; NWADIKE v. IBEKWE (1987) 4 NWLR (Pt.67) 718; ODUNUKWE v. OFOMATA (2010) 12 MJSC 1; METAL CONSTRUCTION (W.A.) LTD V. MIGLIORE (1990) 1 NWLR (Pt.126) 299; OGBECHIE v ONOCHIE (1986) 2 NWLR (Pt.23) 484 to state how to distinguish a ground of law and that of mixed law and fact.
He contended that looking at the grounds of appeal in the Notice of appeal dated 16th day of February 2012, they relate to evaluation of facts before the application of law and as decided in THOR LIMITED V. FCMB (2002) 4 MJSC 179 and B.A.S.F. (NIG) LTD v. FAITH ENTERPRISE LTD (2010) 1 LLR 121 that any ground which questions the evaluation of facts before the application of law amounts to a question of mixed law and fact. Respondent revisited the grounds of appeal contained in the notice of appeal to submit they are all grounds of mixed law and fact.
Furthermore, that being an interlocutory appeal, the Appellant must seek leave of court as decided in the case of ODUNUKWE V. OFOMATA (SUPRA) and failure to seek leave defeats the notice of appeal. He relied on OBATOYINBO v. OSHATOBA (1996) 5 MLR (Pt.450) 531; TILBURY CONSTRUCTION V. OGUNNIYI (1988) 2 NWLR (Pt.74) 64.
Respondent submitted that failure to seek leave makes the notice of appeal incompetent, relied on NAF V IBEKWE (1987) 4 NWLR (Pt 67) 718; GARBA v ONOKHODION (2011) 6 (Pt.111) MJSC 122 and Section 233(3) of the 1999 Constitution.
Submitting further, Respondent relied on OTU V. ACB (2008) 3 MJSC 191 to argue that the court has no discretion and jurisdiction to hear the appeal when leave is not sought as in this case, citing Section 242(2) and 241 of the Constitution; ALHAJI TAHIR MAIHORO V ALHAJI JIBNN GARBA (1999) 7 SCNJ 270 at 279 following OHINDE v. LAGOS DEVELOPMENT PROPERTY CORPORATTON (1983) 5 SC 1; OLOJUO v. OZIMA (1985) 2 NWLR (Pt 6) 167 at 176 and OGBECHIE & ORS v GABRIEL ONOCHIE (1986) 2 NWLR 484.
Respondent contended that this court lacks jurisdiction to hear the appeal for want of leave to appeal because all the grounds are grounds of mixed law and facts, it relied on ABIDOYE V ALAMODE (2001) 2 MJSC 49 at 65 to urge the court to uphold the preliminary objection.
Opposing the objection, the appellant/Respondent submitted that the appeal is against the correct interpretation of Order 24 Rules 1 and 2 of the High Court Civil Procedure Rules, 2004 and the exercise of discretion by the Lower Court in refusing the appellant the right to amend his statement of defence. He contended that the appeal is whether the appellant was entitled to amend his statement of defence which is a matter of law and not facts. He relied on UNION BANK V DAFIAGA (2000) 1 NWLR (Pt.640) 175; ITA v DADZIE (2000) 4 NWLR (Pt 652) 168 and Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004 to insist that he does not require leave of the Court of Appeal. He finally urged the court to dismiss the preliminary objection.
RESOLUTION:
The appeal herein is an interlocutory appeal against the ruling of the Lower Court, the Notice of appeal was filed without leave of court. Section 241 of the 1999 Constitution provides for appeals as of right. Section 242 provides for appeals which prior leave is required before such appeals can be competent. Appeal against an interlocutory ruling without leave of court is provided for by Section 241(1) and that is only when the ground of appeal is on a question of law, see MOHAMED V OLAWUNMI (1990) NWLR (Pt.133) 458 and UNION BANK OF NIGERIA PLC v MR. OLUSOJI SOGUNRO (2006) 16 NWLR (Pt.1006) 504 which held as follows:
“It is trite that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (see Section 221(1) of the 1999 Constitution).”
See also CHIEF NWOSU & ANOR V. OFFOR (1997) NWLR (Pt.487) 274 at 282 and AKINWALE v. B.O.N (2001) 4 NWLR (Pt.704) 448 at 455-456.
It is conceded by parties that no leave was sought before the notice of appeal here was filed. It presupposes that the appellant set out grounds of law. What then is the ground of appeal raising a question of law? It is noted that courts are agreed that there is a thin line between a ground of law and a ground of mixed law and fact. In distinguishing a ground of law or mixed law and fact, the Supreme Court in the case of EHINLANWO v. OKE (2008) 6-7 S.C. (Pt 11) 123 held thus:
“The term question of law or ground of law can be said to have three meanings to wit:
(i) A question the court is bound to answer in accordance with a Rule of law, the process of answering of which the court would exercise no discretion in whatever manner, it is a question predetermined and authoritatively answered by the law.
(ii) The second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true Rule of law is on a certain matter which question usually arises out of the uncertainty of the law.
(iii) The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the Judge instead of a Jury is question of law, even though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact; but is within the province of the Judge.”
Put in another way, a ground of law is one where facts are not in dispute and the only complaint is as to the way and manner the Lower Court applied the law to these established and undisputed facts, then, the ground is one of law, see METAL CONSTRUCTION (W.A) LTD v. MILGORE & ORS (1990) 1 NWLR (Pt.126) 299.
The distinction between the 3 different classes of grounds was also given in the case of ODUMKWE V OJOMATA (2010) 18 NWLR (Pt.1225) 404 where the apex court had this to say:
“The ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the law or a misapplication of the law to the fact admitted or proved it is a ground of law. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact. A ground of appeal on a question of fact is obvious, see OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) 484.”
It is trite that it is not how a party christened a ground that would determine the ground as such. The ground must be closely examined to see whether it qualifies as alleged by the appellant. It is therefore not what a party desires to label a ground, it is what the court finds the ground to be upon a careful examination.
The appellant’s Notice of appeal consist of 3 grounds of appeal which states as follows:
1. GROUNDS OF APPEAL
The learned trial judge erred in law when she held thus: “… he is now by this motion seeking to amend his statement of defence to say that he is not the owner of the property mortgaged to the Claimant and that he had in fact sold the property to the 2nd Defendant! How could he have omitted to mention this extremely vital fact when he filed his statement of defence in December, 2010 and when the motion for summary judgment was being argued? The 3rd Defendant is clearly trying to pull the wool over the eyes of the court and to change the complexion of this case. What was he looking at before the judgment was granted against the 1st and 2nd Defendants? Why did he not say at that time that the property was not his but that he had sold it to the 2nd Defendant?”.
PARTICULARS
All the averments in the Defendant’s Statement Of Defence shows that the Defendant had all the while been denying ever executing a Deed of Tripartite Legal Mortgage with the Claimant and the erstwhile 1st and 2nd Defendants when the execution page of the deed was not annexed. When the Claimant as an afterthought annexed an alleged execution page of the deed, Defendant changed his counsel who sought to amend his Statement of Defence to accommodate his defence in view of the newly introduced evidence by the Claimant.
2. GROUNDS OF APPEAL
The learned trial Judge erred in law when he held thus: “…This is clearly an afterthought and is seeking to overreach the Claimant. I will not allow it.”
PARTICULARS
There was no indication of how the intended amendment of the Defendant’s Statement of Defence could be an afterthought or intended to overreach the Claimant who still has every opportunity to amend his Statement of Claim to accommodate the Defendant’s amendment.
3. GROUNDS OFAPPEAL
The whole ruling by the learned trial Judge is against the weight of evidence and authorities cited His Lordship.
PARTICULARS
The learned trial Judge found herself able to cite a number of legal authorities all of which she neither followed nor distinguished from the present case.
The above grounds of appeal have to be examined to classify them appropriately. Ground one questions the ruling of the Lower Court in the exercise of discretion. Discretion is usually exercised on materials placed before the court and there is no static classification of how a discretion should be exercised except to be based on materials. The appellant in the particulars referred to facts in the proposed amended statement of defence. The Lower Court upon evaluating the new facts in the proposed amended statement of defence concluded that it offends the rule on amendments because it was overreaching and taking the previous state of pleadings into account, the appellant was changing the nature of the case. It is my view that exercise of discretion on facts cannot qualify ground one as a ground of law. There is generally no discretion in the application of law. It is a ground of mixed law and fact as the law is to be applied on facts where discretion comes in.
Ground two is closely related to ground one by alleging that the Lower Court found that the proposed amendment would overreach the Plaintiff (now Respondent). This also applies to facts in the pleadings of the Plaintiff and the proposed amended statement of defence. It also boils assessment of the state of pleadings (facts) and then application of law in the exercise of discretion. The particulars to ground two question how the decision that the amendment would overreach the claimant was arrived at. It is from facts that the answer can be found. Appellant stated that the claimant still had an opportunity to amend the statement of claim to accommodate the defendant’s amendment. The issue with Amendments of pleadings is subject to the exercise of the courts discretion and always granted in order to determine the issue in dispute. It is not therefore strictly an application of law on facts which are not disputed. It is a situation where there could be different outcomes as evaluated by different minds. Ground two is also a ground of mixed law and fact.
Ground three says the ruling is against weight of evidence and the particulars challenge the Lower Court for citing authorities which were neither followed nor distinguished. A ground against weight of evidence,
generally is called the omnibus ground and is one against the findings of facts. It is evaluation of evidence which results in finding of fact. Usually an appellate court will not interfere with such findings. If the complaint is against evaluation of evidence, that means affidavit evidence, can it be a ground of law simpliciter? I think not. It is also a ground of mixed law and fact. This too, to my mind, calls for discretion because there is no law that says a trial court must apply all the case law cited in the determination of an application to amend or in a suit generally. There is no ground that challenges the application of law to admitted facts per se. The supporting affidavit and counter affidavit evaluated in the ruling are all facts and they were disputed. To challenge the evaluation of facts before applying the law qualifies the grounds as grounds of mixed law and fact, see OGBECHIE V ONOCHIE (SUPRA). I therefore agree with the Respondent that the grounds are not grounds of law but at best grounds of mixed law and fact and in that case prior leave is required before filing the appeal.
Consequently therefore, the appellant required leave of the Lower Court or this court to appeal on these grounds of appeal. No leave was sought for as highlighted earlier in this judgment, it means that this court cannot exercise any discretion but to find that the Appellant’s grounds are incompetent and must fail. The Notice of appeal is therefore incompetent and must be struck out. The preliminary objection is upheld and the appeal is hereby struck out.
Each party to bear its cost.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA.
I agree with her reasoning and final conclusions. I have nothing more to add.
The Preliminary Objection is upheld and the Appeal is hereby struck out.
No order as to costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. My learned brother covered all the grounds.
An appellate court cannot entertain an appeal where the appellant ought to but failed to seek leave to appeal: Irhabor v. Ogaiamien (1999) 8 NWLR (Pt.616) 517
I also uphold the preliminary objection and strike out the appeal as incompetent. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
For Appellant
AND
For Respondent
