IRC v. ASKIRA (2022)

IRC v. ASKIRA

(2022)LCN/16877(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/G/83/2021

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

INTERNATIONAL RESCUE COMMITTEE APPELANT(S)

And

ALHAJI IBRAHIM GONI ASKIRA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON INTERLOCUTORY APPEAL

From these provisions, it is clear any appeal which is not based on final judgment is an interlocutory appeal. For an interlocutory appeal to be competent, it must be filed within 14 days with the leave of Court either at the lower Court or this Court after the 14 days have expired. See Enyibros Food Processing Company (Nig) Ltd & Anor v. NDIC & Anor (2021) LPELR-55330 (SC); Jev & Anor v. Iyortyom & Ors (2012) LPELR-9291(CA); Auta v. FRN (2021) LPELR-54867 (SC). This general rule has an exception. That is to say, there is a situation where leave will not be required even in interlocutory appeal. This exception is when the ground of appeal is purely on grounds of law. This Court stated the proper legal position in Morah v. FRN (2017) LPELR-50299 (CA), this Court held in very simple terms and language thus:
“An interlocutory appeal can be brought as of right on grounds of law and with leave on grounds of mixed fact and law or grounds of fact. Furthermore, Section 14 of the Court of Appeal Act requires that leave must be first sought and obtained before filing appeals against interlocutory decisions of a trial Court particularly where the grounds of appeal are not grounds of law alone.” Per NIMPAR, J.C.A
The Supreme Court has earlier stated this principle with a voice of finality in an earlier judgment. This was in the case of Nwosu & Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC held as follows:
“Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions.
This position of the law is acceptable to both learned counsels. The area of conflict is whether the appeal is purely on grounds of law, mixed law and fact or purely on fact. If the appeal is either on fact or mixed law and fact, being an interlocutory appeal, leave will be required. The question therefore is whether the appeal before this Court is purely on law or mixed law and fact.. The apex Court has in a cloud of cases made that distinguish between appeal on grounds of fact, mixed law and fact and purely on law”.
This appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the notice of appeal. The only ground under which this appeal will be competent before this Court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank & Anor (2007)16 NWLR (Pt.1059) 99, Muhammad, JSC held:
“The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any Court including this Court or the Court below.” PER TOBI, J.C.A.

DISTINCTION ON WHETHER AN APPEAL IS OF LAW OR MIXED LAW AND FACTS

It is not very easy to make the distinction but one way to know that an appeal is purely on law is that the issue in the front burner involves the interpretation of the law or the application of the law. If the movement is from law to fact, this is an appeal on law but if it is from fact to law, it is an appeal on mixed law and fact. A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What is on the front burner for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground? In this regard, the centre of attraction in the appeal is the interpretation, understanding and the application of the law. Anything apart from that will amount to mix law and fact. In Ifediorah & Ors vs. Ume & Ors (1988)2 NWLR (Pt.74) 5, the apex Court held:
“There is no doubt that it is always not easy to distinguish aground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors. v. Onochie & Ors. (1986) S.C. 54 wherein Eso, J.S.C., said-“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. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower Tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” (Underline for emphasis)
As mentioned earlier, an appeal on question of law alone is based on the law or the application of the law. If it goes in to evaluate facts before the application of the law, it will amount to mix law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi & Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19 Ogundare, JSC (of blessed memory) held thus extensively on this issue:
“In Metal Construction (West African) Ltd. vs. D. A. Migliore & Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299 – this Court examined at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C. at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First, it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. 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. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The parties in this appeal entered into a lease agreement wherein the Respondent is the lessor and the Appellant the leasee. In the lease agreement there is an arbitration clause which is article 16. The summary of the clause is that when dispute arises from the operation of the lease agreement, parties should explore amicable settlement through negotiation and dialogue. When this fails either party can within 21 days refer the matter to arbitration which will be governed by the Arbitration and Conciliation Act, 2004 Laws of the Federation. The decision of the single arbitrator will be final and binding on the parties. It is also part of the clause that by mutual agreement the arbitration clause can be waived. Dispute arose between the parties on the lease agreement and the Respondent without first recourse to arbitration in line with Article 16 of the lease agreement instituted an action against the Appellant. The Appellant filed a preliminary objection to the suit challenging the jurisdiction of the Court. The Court dismissed the objection in its ruling of 30/3/21. On 15/6/21, the Appellant filed a motion for stay of proceedings on the premise that the action is premature as it offends the spirit and intent of the arbitration clause that is Article 16 of the lease agreement in the sense that no arbitration was resorted to before the action was filed. The Appellant Counsel, K. O. Oyeniran Esq moved the application on 8/7/21 while Respondent’s Counsel, N. A. Dammo Esq replied the same day. The lower Court presided over by His Lordship Hon. Justice Haruna Y. Mshelia did not see any reason to take the ruling home. He delivered a bench ruling dismissing the application for stay. The main thrust for refusing the application is that the Appellant has not shown that it has taken any step to actualize the move for arbitration. His Lordship held at page 76 of the record thus:
“While the law enjoined on Court to stay proceeding for arbitration, parties, particularly the Applicant must take step to refer the dispute to arbitration. To insist on staying proceedings without taking any step to refer the dispute to arbitration is not the purpose of the law. In view of the above, I am not disposed to staying proceedings, when parties are not willing or ready or demonstrated the willingness to refer their dispute to arbitration. This application is accordingly refused. Whenever, any parties (sic) refer the matter to arbitration the rightful will be done.”

This decision did not go down well with the Appellant. On 16/7/21 about 8 days after the ruling, it filed the notice of appeal which contains two grounds.
Ground 1
The learned trial Judge misdirected himself in law when he held that: “This is a very simple application which the law is well settled. Courts are enjoined by law to defer to arbitration agreement between parties and to stay proceedings to await the arbitration… The Defendant/Applicant filed an application challenging the entire jurisdiction of the Court to hear the case. It was ruled to the effect that the arbitration clause takes effect over the Court but not denying the Court of jurisdiction… This Application was brought again in June, six (6) months after requesting the Court to stat proceedings without referring the dispute to arbitration as agreed upon.”
Ground 2
The learned trial Judge erred in law when he held that: “While the law enjoins on Court to stay proceedings for arbitration, parties, particularly the Applicant must take step to refer the dispute to arbitration… From the papers filed before the Court, both parties traded claim before the case was filed. In the circumstance, each party has a claim to warrant reference to arbitration.”

The Respondent filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules to the hearing of the appeal. The main reason for the objection is that, the appeal being an interlocutory appeal, leave is required to institute same at either the lower Court or this Court. Having not sought for leave, the appeal is incompetent. In the light of the preliminary objection, I will not delve into the submission of Counsel on the substantive appeal for now as whether I will consider the substantive appeal will depend on whether the preliminary objection succeeds or fails. If it fails, I will then consider the merit of the appeal but if it succeeds, the appeal will abruptly be terminated. The essence of the preliminary objection is to terminate the appeal it is like aborting a baby before he is born. When a baby is aborted, the destiny of the baby is destroyed and it cannot be fulfilled. When a case is terminated at the stage of preliminary objection depending on the nature of the objection, it can be struck out or dismissed. The law is settled beyond any dispute that a preliminary objection can terminate this appeal if it is successful. This is because, if the preliminary objection is successful, there will be no need to consider the merit of the appeal. A successful preliminary objection has the effect of terminating the appeal and by necessary implication it short-circuits the appeal.
Since the premise upon which the Respondent is seeking to terminate the appeal is on incompetence, the outcome if the Preliminary Objection succeeds will be to strike out the appeal. I will refer to a few cases on what Preliminary Objection means and its effect. In Adejumo vs Olawaiye (2014)12 NWLR (Pt, 1421) 252, the Supreme Court held in this regard thus:
‘The purpose of a preliminary objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. If sustained it terminates the hearing of the appeal.”
Similarly, in Igbeke v. Okadigbo & Ors (2013) LPELR-20664(SC), the apex Court held:
“The preliminary objection raised by a party to the hearing of a matter or appeal is a threshold issue. It is that the appeal ought not be heard as it has no basis. For the success of the objection to the hearing of an appeal is a pre-emptive step which has the effect of bringing the litigation to an end. On the other hand, if the objection is dismissed, the appeal will be determined on the merit. This Court has in a plethora of decisions considered the preliminary objection along with the hearing of the substantive appeal. See SULEIMAN MOHAMMED & ANOR. v. LASISI SANUSI OLAWUNMI (1990) 4 SC 40; MAIGORO v. GARBA (1999) 10 NWLR (Pt.624) 555.” Per GALADIMA, J.S.C

The preliminary objection was raised in paragraph 3.00 of the Respondent’s brief filed on 28/2/22 deemed on 1/3/22 argued in paragraphs 4.00-6.00 covering pages 3-5 of the brief. The Appellant filed a reply brief on 14/3/22 wherein in paragraphs 3.1.1-3.1.9 Counsel responded to the preliminary objection. The main thrust of the argument of N. A. Dammi Esq, Counsel for the Respondent in relation to the preliminary objection is that this Court lacked jurisdiction to entertain this appeal being an interlocutory appeal because the Appellant did not seek leave either in the lower Court or this Court before filing the appeal on 16/7/21. He relied on Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria, Section 14 of the Court of Appeal Act and a host of cases including Nzei vs UNN (2017) 6 NWLR (pt 1561) 300; N. I. W. A. vs SPDCN Ltd (2020) 16 NWLR (pt1749) 160; Alabi vs Alabi (2008) ALL FWLR (pt 418) 245. He urged Court to strike out the appeal.

K. O. Oyeniran Esq, Learned Counsel for the Appellant in response to the preliminary objection relying on the provision of Section 241 and 242 of the 1999 Constitution of Nigeria (as amended) and the cases of Ene vs Asikpo (2010) 10 NWLR (pt 1203) 509; F.C.D.A. & 10 Ors vs De Timiebi Koripamo-Agary 14 NWLR (pt 1213)364; Nika Fishing Co Ltd vs Lavina Corp (2008) 16 NWLR (pt 1114) 509 submitted that the appeal since it deals with the misapplication of the law that is Section 5 of the Arbitration and Conciliation Act, it is an appeal on point of law for which leave is not required. He urged Court to dismiss the preliminary objection.

The main issue to determine in the preliminary objection is whether the appeal is competent when no leave was sought being an interlocutory appeal. Looking at the submission of both Counsels, they do not seem to have any problem with the law but rather with the application of the law to the facts. For completeness, I will restate the law. The Constitution of the Federal Republic of Nigeria recognize the right of appeal by any party however the Constitution has clearly stated some appeals which are as of right and those that require leave. This is provided for in Section 241 and 242 of the Constitution. I reproduce the section for ease of reference:
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 this 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 a High Court has imposed a sentence of death:
(f) Decisions made or given by the Federal High Court or a High Court-
(i) where the liberty of a person or the custody of an infant is concerned
(ii) where an injunction or the appointment of a receiver is granted or refused
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria
(2) Nothing in this Section shall order any right of appeal
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi, and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only
242 (1) Subject to the provisions of Section 241 of this 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
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application
Also relevant is Section 14 of the Court of Appeal Act. I reproduce it also for ease of reference:
(1) Where, in the exercise the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.

From these provisions, it is clear any appeal which is not based on final judgment is an interlocutory appeal. For an interlocutory appeal to be competent, it must be filed within 14 days with the leave of Court either at the lower Court or this Court after the 14 days have expired. See Enyibros Food Processing Company (Nig) Ltd & Anor v. NDIC & Anor (2021) LPELR-55330 (SC); Jev & Anor v. Iyortyom & Ors (2012) LPELR-9291(CA); Auta v. FRN (2021) LPELR-54867 (SC). This general rule has an exception. That is to say, there is a situation where leave will not be required even in interlocutory appeal. This exception is when the ground of appeal is purely on grounds of law. This Court stated the proper legal position in Morah v. FRN (2017) LPELR-50299 (CA), this Court held in very simple terms and language thus:
“An interlocutory appeal can be brought as of right on grounds of law and with leave on grounds of mixed fact and law or grounds of fact. Furthermore, Section 14 of the Court of Appeal Act requires that leave must be first sought and obtained before filing appeals against interlocutory decisions of a trial Court particularly where the grounds of appeal are not grounds of law alone.” Per NIMPAR, J.C.A
The Supreme Court has earlier stated this principle with a voice of finality in an earlier judgment. This was in the case of Nwosu & Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC held as follows:
“Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions.
This position of the law is acceptable to both learned counsels. The area of conflict is whether the appeal is purely on grounds of law, mixed law and fact or purely on fact. If the appeal is either on fact or mixed law and fact, being an interlocutory appeal, leave will be required. The question therefore is whether the appeal before this Court is purely on law or mixed law and fact.. The apex Court has in a cloud of cases made that distinguish between appeal on grounds of fact, mixed law and fact and purely on law”.
This appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the notice of appeal. The only ground under which this appeal will be competent before this Court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank & Anor (2007)16 NWLR (Pt.1059) 99, Muhammad, JSC held:
“The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any Court including this Court or the Court below.”

The main point here is whether the grounds of appeal are purely grounds of law. If they are, there is no need to seek for leave but if they are not, since no leave was sought the appeal will be incompetent. It is not very easy to make the distinction but one way to know that an appeal is purely on law is that the issue in the front burner involves the interpretation of the law or the application of the law. If the movement is from law to fact, this is an appeal on law but if it is from fact to law, it is an appeal on mixed law and fact. A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What is on the front burner for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground? In this regard, the centre of attraction in the appeal is the interpretation, understanding and the application of the law. Anything apart from that will amount to mix law and fact. In Ifediorah & Ors vs. Ume & Ors (1988)2 NWLR (Pt.74) 5, the apex Court held:
“There is no doubt that it is always not easy to distinguish aground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors. v. Onochie & Ors. (1986) S.C. 54 wherein Eso, J.S.C., said-“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. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower Tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” (Underline for emphasis)
As mentioned earlier, an appeal on question of law alone is based on the law or the application of the law. If it goes in to evaluate facts before the application of the law, it will amount to mix law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi & Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19 Ogundare, JSC (of blessed memory) held thus extensively on this issue:
“In Metal Construction (West African) Ltd. vs. D. A. Migliore & Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299 – this Court examined at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C. at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First, it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. 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. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge”
And on question of fact the learned Justice of this Court, at page 150, said: “Now turning to what is a question of fact it is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact. A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.”
Similarly, the apex Court per Galadima, JSC in Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 held thus:
“This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact.
Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that off act.
(vii) Where the lower Court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skills of a trained lawyer, this is a question of law.
(ix) 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 law. This is a ground of law.
(x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the Court of appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of appeal are issues of fact and not of law.
(xii) Where the Court of appeal 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 of fact.
(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of appeal or a further Court of appeal). See the cases of BOARD OF CUSTOMS &. EXCISE vs. BARAU (SC) 48 and OGBECHIE vs. ONOCHIE (1986) 3 SC 58-64, where this Court interpreted the provisions of Section 213 (3) and 214 (3) of the Constitution of the Federal Republic of Nigeria, in pari material with the instant provisions of Section 233(2) and 232(2)(a) of the said Constitution. Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows:
(i) OJEMEN vs. MOMODU (1983) 3 SC 173 at 207.
(ii) RABIU vs. ATTORNEY GENERAL KANO STATE (1980) 8-11(SC) also (1982)2 NCLR 117.
(iii) NWADIKE vs. IBEKWE (1987) 4 NWLR (Pt. 67).
(iv) ABIDOYE vs. ALAWODE (2001) 6 NWLR (Pt.709) 463 at 472.
(v) IFEDIORA V. UME (1988) 2 NWLR (Pt. 74)5.
(vi) OFORKIRE v. MADUIKE (2003)5 NWLR (Pt.812) 166 at 176.
(vii) IDOWU V. STATE (2000) 12 NWLR (Pt. 680)48 at 68–69.
It has been further decided by this Court that in determining whether a ground of appeal includes question of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A vs. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390” (underlined for emphasis)

The way the ground of appeal is couched will determine whether an appeal is purely on law. To determine which of the three categories this appeal fall into, I will reproduce the grounds of appeal without the particulars:
Ground 1
The learned trial Judge misdirected himself in law when he held that: “This is a very simple application which the law is well settled. Courts are enjoined by law to defer to arbitration agreement between parties and to stay proceedings to await the arbitration… The Defendant/Applicant filed an application challenging the entire jurisdiction of the Court to hear the case. It was ruled to the effect that the arbitration clause takes effect over the Court but not denying the Court of jurisdiction… This Application was brought again in June, six (6) months after requesting the Court to stat proceedings without referring the dispute to arbitration as agreed upon.”
Ground 2
The learned trial Judge erred in law when he held that: “While the law enjoins on Court to stay proceedings for arbitration, parties, particularly the Applicant must take step to refer the dispute to arbitration… From the papers filed before the Court, both parties traded claims before the case was filed. In the circumstance, each party has a claim to warrant reference to arbitration.”

What is relevant is the grounds of appeal and not the particulars as issues are formulated based on the grounds and not the particulars which are merely guides. Issues are based on the grounds, arguments are based on the issues and the Court resolve issues and not the particulars.

The argument of Learned Counsel for the Appellant is that:
“the gambit of the Appellant’s appeal is on the issue of the interpretation and application by the lower Court of a statutory provision, albeit, Section 5 of the Arbitration and Conciliation Act, which this honourable Court is now being called upon to interpret and give effect to, hence it is an appeal on ground of law.”

With due respect to Counsel, from the ground stated above what is in the front burner is not the interpretation or understanding of Section 5 of the Arbitration and Conciliation Act. If that is what he intended to achieve in the argument, he did not do a good job of it. A Court in determining whether an appeal is on ground of pure law will not look at the intention but rather the grounds as in the Notice of appeal. I have painstakingly looked at the grounds of appeal again and again, I do not agree that the grounds of appeal as coughed as purely grounds of law. At best, they are mixed law and fact for which leave needed to be obtained before filing the appeal. I uphold the preliminary objection. The appeal is therefore incompetent.

In the light of this, it will serve no useful purpose to delve into the merit of the appeal. The appeal is struck out being incompetent.

I award N200,000 cost in favour of the Respondent against the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in draft the lead judgment of my learned brother, Ebiowei Tobi, J.C.A. and I agree with his reasoning and conclusion.

It is evident from the grounds of appeal as set out in the Notice of Appeal, that the appeal before the Court is not based on the ground of law alone, but on grounds of mixed law and facts. Being also an interlocutory appeal, the Appellant required the leave of Court before filing the appeal. See Sections 241, and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); & Section 14 of the Court of Appeal Act, 2004. It is not in dispute that the Appellant did not seek the requisite leave. Consequently, this appeal is incompetent and liable to be struck out.

Accordingly, I also uphold the preliminary objection and strike out the appeal for incompetence. I endorse the order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.

My learned brother elaborately and exhaustively considered and determined all the issues raised in the appeal creditably. I am in total agreement with the resolution of issues in favour of the Respondent. I have nothing useful to add to the erudite reasoning and decision arrived at by my learned brother, Ebiowei Tobi, JCA. I can only with profound gratitude, adopt same as mine, and dismiss the appeal, for it is incompetent.

I abide by the order made on cost.