INDEPCO LTD v. MOBILE INTEGRATED MAINTENANCE SERVICE LTD
(2022)LCN/16865(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/L/388/2015
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
INDEPCO LIMITED APPELANT(S)
And
MOBILE INTEGRATED MAINTENANCE SERVICE LIMITED RESPONDENT(S)
RATIO
THE PRINCIPLES GUIDING THE COURT IN DETERMINING WHETHER A GROUND OF APPEAL IS ONF OF LAW ALONE OR FACT OR MIXED LAW AND FACT
At this juncture, it is necessary to examine the principles guiding the Court in determining whether a Ground of Appeal is one of law alone or fact or of mixed law and fact.
The Supreme Court in the case of – CHIEF B. A. ALLANAH & 2 OTHERS VS. MR. KANAYO KPOLOKWU & 2 OTHERS (2016) 6 NWLR PART 1507 PAGE 1 held among others that some of the guiding principles though not exhaustive, include:-
“(a) Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact.
(b) A ground which challenges the finding of fact made by the trial Court or involves issues of law and fact, can only be argued with leave of the appellate Court.
(c) Where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.
(d) Where the evaluation of evidence considered at the trial is exclusively questioned, it is a ground of fact.
(e) A ground of law arises where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misunderstood the law to the proved or admitted facts.
(EHINLANWO VS. OKE (2008) 16 NWLR PART 1113 PAGE 357.
NWADIKE VS. IBEKWE (1987) 4 NWLR PART 67 PAGE 718 referred to)”.
Also in OGBECHIE & OTHERS VS. ONOCHIE & OTHERS (1986) LPELR–2278 (SC). It was held among others that:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine”. PER BADA, J.C.A.
THE POSITION OF LAW ON FAILURE TO SEEK LEAVE TO APPEAL
The Appellant failed to seek leave to appeal either from the Lagos State High Court or Court of Appeal. The omission is fatal to this appeal. See the following cases:-
– DAIRO VS. U.B.N. PLC (2007) 16 NWLR PART 1059 PAGE 99.
– OPUIYO VS. OMONIWARI (2007) 16 NWLR PART 1060 PAGE 415.
– UGWU VS. STATE (2013) 14 NWLR PART 1374 PAGE 257.
A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which set the ball rolling for the proper, valid lawful commencement of an appeal.
The failure of the Appellant to seek and obtain leave in respect of the three (3) grounds of appeal of mixed law and facts rendered the three grounds incompetent. In the circumstance, the Court of Appeal lacked jurisdiction to hear and determine the appeal.
Consequent upon the foregoing, it is my view that this appeal is incompetent and it is hereby struck out.
See the following cases:-
– ANACHEBE VS. IJEOMA (2014) 14 NWLR PART 1426 PAGE 168.
– ABDUL VS. C.P.C. & OTHERS (2014) 1 NWLR PART 1388 PAGE 299. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Lagos State High Court in Suit NO: LD/386/2011 – BETWEEN: MOBILE INTEGRATED MAINTENANCE SERVICE LTD. VS. INDEPCO LTD. delivered on the 19th day of December 2014 wherein judgment was entered in favour of the Respondent in part.
Briefly, the facts of this case are that by a Writ of Summons dated and filed on 4/3/2011 the Claimant now Respondent claimed as follows:-
“(1) The sum of N21,385,500.00 being total cost of the extra diesel supplied and unpaid for by the Defendant between June 2009 and January 2010.
(2) The sum of N2,250,000.00 being cost of 18,000 litres of diesel procured at Kebbi State.
(3) The sum of N9,443,317.70 being cost of excluded works between August 2009 and November 2009.
(4) The sum of N9,319,575 which represent shortfalls in the payment for January, February and March 2010 invoices.
(5) The sum of N14,779,800 being amount owed for the maintenance for April and May 2010 invoices.
(6) General Damages N10,000,000.
(7) Cost of the suit N3,000,000”.
The case went for trial and at the conclusion of hearing, judgment was delivered wherein Reliefs 1 and 5 of the Respondent’s Claim failed and were dismissed while judgment was entered in favour of the Respondent as follows:-
“(a) The sum of N2,250,000.00 being cost of 18,000 litres of diesel procured at Kebbi State.
(b) The sum of N9,443,317.70 being cost of excluded works between August 2009 and November 2009.
(c) The sum of N9,319,575.00 representing short falls in payments for January, February and March 2010 invoices”.
The Appellant who was miffed by the decision of the trial Court appealed to this Court.
The Learned Counsel for the Appellant formulated three issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether the Learned trial Judge was right when she held that by paying for big ticket jobs in June and July 2009 and not showing that it objected and/or protested thereafter the Appellant must be taken to have ratified the expenditure of big ticket jobs between August 2009 and November 2009. (Distilled from Ground 1).
(2) Whether the Learned trial Judge was right in holding that the supply of additional 18,000 litres of diesel at Kebbi State was to the knowledge and approval of the Appellant. (Distilled from Ground 2)
“(3) Whether the Learned trial Judge was right in entering judgment in favour of the Respondent for the sum of N9,319,575.00 being alleged shortfalls in payment for January, February and March 2010 invoices. (Distilled from Ground 3).”
The learned Counsel for the Respondent, despite being duly served with the processes filed on behalf of the Appellant did not file a Respondent’s brief of argument.
At the hearing of this appeal on 3rd day of March 2022, the Learned Counsel for the Appellant stated that the appeal is against the judgment of Lagos High Court delivered on 19/12/2014. The Notice of Appeal was filed on 24/3/2015 while the Appellant’s brief of argument was filed on 25/4/2017 and deemed as properly filed on 26/3/2019.
The learned Counsel for the Appellant adopted and relied on the said Appellant’s brief as his argument in urging that the appeal be allowed.
When asked by the Court whether leave of Court is required in filing this appeal because of the nature of the grounds of appeal.
The learned Counsel for the Appellant stated that leave of Court was not obtained before filing the Grounds of Appeal because it is not necessary.
On his own part, the learned Counsel for the Respondent submitted that a perusal of the Grounds of Appeal filed on behalf of the Appellant showed that they are of mixed law and facts. And in such a situation it is necessary to obtain leave of Court before this Court can have jurisdiction to entertain the appeal. He contended that the Appellant ought to have brought trinity prayers. He submitted that without the leave of Court the appeal is incompetent.
The response of both Counsel for the parties in this appeal to the question above prompted me to ask the question –
When should a party apply for leave to appeal?
Leave to appeal is required only when the judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law.
It is settled law that where the leave of the Court is required for the exercise of a right of appeal, obtaining such leave becomes a condition precedent to the exercise of that right of appeal, a failure to obtain leave where it is required will render the appeal incompetent as the appellate Court will be divested of any jurisdiction to entertain the matter.
See – EHINLANWO VS. OKE & OTHERS (2008) 16 NWLR PART 1113 PAGE 357.
– FEDERAL AIRPORTS AUTHORITY OF NIGERIA VS. BI-COURTNEY LIMITED AND ANOTHER (2011) LPELR–19742 (CA).
In order to understand the contention of both Counsels in this appeal, it would be necessary to reproduce the Ground of Appeal without its particulars.
The appellant filed its Notice of Appeal on 24/3/2015 which has three (3) Grounds of Appeal. The three (3) Grounds of Appeal without their particulars are reproduced as follows:-
“Ground 1
The learned trial Judge erred in law when she held that “by paying for those items in June and July, and not shown that it objected or protested thereafter, the Defendant must be taken to have ratified the expenditure. I come to the conclusion that the Claimant has established this head of claim on a balance of probability”.
Ground 2
The learned trial Judge erred in law when she held that “And as may be seen from this email and others in Exhibit “C” the Claimant was freely interacting with the contract employers, without any objection from the defendant. The head of claim is therefore proved. Issue 3 is resolved in favour of the Claimant”.
Ground 3
The learned trial Judge erred in Law when she entered judgment in favour of the Claimant for the sum of N9,319,575.00 representing shortfalls in payment for January, February and March 2010 invoices”.
At this juncture, it is necessary to examine the principles guiding the Court in determining whether a Ground of Appeal is one of law alone or fact or of mixed law and fact.
The Supreme Court in the case of – CHIEF B. A. ALLANAH & 2 OTHERS VS. MR. KANAYO KPOLOKWU & 2 OTHERS (2016) 6 NWLR PART 1507 PAGE 1 held among others that some of the guiding principles though not exhaustive, include:-
“(a) Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact.
(b) A ground which challenges the finding of fact made by the trial Court or involves issues of law and fact, can only be argued with leave of the appellate Court.
(c) Where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.
(d) Where the evaluation of evidence considered at the trial is exclusively questioned, it is a ground of fact.
(e) A ground of law arises where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misunderstood the law to the proved or admitted facts.
(EHINLANWO VS. OKE (2008) 16 NWLR PART 1113 PAGE 357.
NWADIKE VS. IBEKWE (1987) 4 NWLR PART 67 PAGE 718 referred to)”.
Also in OGBECHIE & OTHERS VS. ONOCHIE & OTHERS (1986) LPELR–2278 (SC). It was held among others that:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine”.
A careful perusal of the three grounds of appeal filed on behalf of the Appellant would reveal that the Court was being invited to investigate the existence or otherwise of facts upon which the decision of the trial Court was based. This in my view are grounds of mixed law and facts.
The Appellant failed to seek leave to appeal either from the Lagos State High Court or Court of Appeal. The omission is fatal to this appeal. See the following cases:-
– DAIRO VS. U.B.N. PLC (2007) 16 NWLR PART 1059 PAGE 99.
– OPUIYO VS. OMONIWARI (2007) 16 NWLR PART 1060 PAGE 415.
– UGWU VS. STATE (2013) 14 NWLR PART 1374 PAGE 257.
A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which set the ball rolling for the proper, valid lawful commencement of an appeal.
The failure of the Appellant to seek and obtain leave in respect of the three (3) grounds of appeal of mixed law and facts rendered the three grounds incompetent. In the circumstance, the Court of Appeal lacked jurisdiction to hear and determine the appeal.
Consequent upon the foregoing, it is my view that this appeal is incompetent and it is hereby struck out.
See the following cases:-
– ANACHEBE VS. IJEOMA (2014) 14 NWLR PART 1426 PAGE 168.
– ABDUL VS. C.P.C. & OTHERS (2014) 1 NWLR PART 1388 PAGE 299.
Appeal struck out.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA, made available to me a copy of the judgment, now delivered, in draft form, striking out this appeal. I agree with, and adopt as mine the resolution of the issue in contention, as has been ably done by my learned brother.
Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been; Lakanmi v Adene (2003) LPELR-1750(SC); Ekulo Farms Ltd v UBN Plc (2006) LPELR-1101(SC); Obaba v Military Governor of Kwara State (1994) LPELR-2147(SC).
It is trite that any ground of appeal that raises an issue of mixed law and fact or facts simpliciter can only be competent where the appeal is brought with leave of Court. Failure to, first, obtain leave of Court, as in the instant appeal, renders the appeal incompetent and liable to be struck out; Garuba & Ors v. Omokhodion & Ors (2011) LPELR-1309(SC); Ikponmwen v. Asemota & Anor (2022) LPELR-56594(SC); Ene v Asikpo & Anor (2009) LPELR-8723(CA).
For this reason and for the more robust reasons given by my learned brother. I also strike out this appeal as it is incompetent.
ABUBAKAR SADIQ UMAR, J.C.A.: The draft of the lead judgment, of my learned brother Jimi Olukayode Bada, JCA, was made available to me before now and for the reasons clearly and meticulously set out therein, which I adopt and hereby dismiss the appeal for being unmeritorious, and abide by the consequential orders made thereat including order to costs.
Appearances:
MR. OLUSOJI ELIAS For Appellant(s)
MR. K. G. RAJI, WITH HIM, O. D. SODEHINDE For Respondent(s)
