KELLOGG COMPANY v. INFINITY SNACKS & BEVERAGES LTD
(2022)LCN/16994(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, December 06, 2022
CA/L/CV/1186/2019(R)
Before Our Lordships:
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
KELLOGG COMPANY APPELANT(S)
And
INFINITY SNACKS AND BEVERAGES LIMITED RESPONDENT(S)
RATIO
THE INTERPRETATION OF SECTION 241 (1) (b) OF THE 1999 CONSTITUTION
Now, the wordings of Section 241 (1) (b) of the 1999 Constitution are very clear and must be given their literal meaning without any addition or assumed imputations whatsoever. The opinion of an author remains what it is… an opinion and it is up to the Court to carefully peruse the Section and come to a decision on the meaning of the Section referred to, in the context of the arguments raised.
Section 241 (1) (a) and (b) of the 1999 Constitution (as amended), states thus:
“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 Decision in any Civil or Criminal Proceedings before the Federal High Court sitting at first instance;
b) Where the Ground of Appeal involves Questions of Law Alone, Decisions in any Civil or Criminal Proceedings;” (Underlining Mine).
Starting from the standpoint of the word “DECISIONS”, it is clear that the word means a judgment, conclusion, or resolution firmly reached or given, which amounts to a verdict when the mind of the Court is made up on an issue raised. The quality of this word was not described in any way as final or interlocutory and therefore, to inject the word “Interlocutory” into this Section amounts to adding a belief or supposition on what is a decision. Therefore, the conclusion arrived at by the Author referred to in his book needs further explanation on how he arrived at his analysis, in order to unilaterally add the word “Interlocutory”. PER BANJOKO, J.CA.
THE POSITION OF LAW ON WHAT CONSTITUTES AS GROUNDS OF LAW AND FACT
Recourse will be had to case law authorities on what constitutes a Ground of law, a ground of fact or of mixed law and facts. Reference is made to the case of DAIRO VS UNION BANK (2007) 16 NWLR PART 1059 AT PAGE 99, where these Grounds were distinguished, one from the other and the recent case authority of FOLARIN ROTIMI ABIOLA WILLIAMS ESQ. & ANOR VS ADOLD/STAMM INTERNATIONAL (NIG) LTD & ANOR (2022) 5 NWLR PART 1822, PAGE 40-41 AT PARAS C-A.
In this latter recent case, the Apex Court, PER AGIM JSC, His Lordship held as follows: –
“The mere christening of a Ground of Appeal as a Ground of Law does not necessarily make it a Ground of Law. The Ground must be examined to determine whether in fact, it is a ground of law, or of fact, or grounds of mixed law and fact. So, in determining whether Grounds of Appeal are Grounds of law, or of facts, or of mixed law and facts, the Court is required to thoroughly examine the Grounds of Appeal together with their particulars to see whether any of the Grounds reveal a Misunderstanding of the Law by the lower Court or a misapplication of the law to the fact already proved or admitted, in which case it would be a question of law. Where however, the Ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, it is a Ground of mixed law and fact. A Ground of Appeal, which raises facts, which need to be determined either way, is a Ground of Fact”. Reference was made in this case to the case authorities of OJEMEN VS MOMODU (1983) 1 SCNLR AT 188; UBA LTD VS GMBH (1989) 3 NWLR PART 110 AT 374; STATE VS AJAYI (1996) 2 NWLR PART 423 AT 169 AND FAITH ENT LTD VS BASF (NIG) LTD (2001) 8 NWLR PART 714 AT 242.
Further, the case of NZE VS ONYEACHUGWO (2022) 5 NWLR PART 1822 PER TIJJANI ABUBAKAR JSC, reinforced this proposition when he held that “In order to determine whether a Ground of Appeal is a Ground of law, or mixed law and facts, or facts alone, the Courts examines the Ground of Appeal. Further, the Court must read the Ground and their particulars of error together”. PER BANJOKO, J.CA.
ADEBUKUNOLA BANJOKO, J.C.A. (Delivering the Leading Judgement): Upon being dissatisfied with the judgment delivered by I.N. Buba J. of the Federal High Court, in Lagos delivered on the 31st of January 2019, the Appellant filed their Notice of Appeal on the 29th day of April 2019 seeking from this Court, an order of reversal of the decision complained against, as well as the grant of all the reliefs sought in the Appellants’ Amended Notice of Originating Motion dated the 15th day of March 2018.
Upon being served with the Processes in the appeal, the Respondent, in response, filed a Notice of Preliminary Objection dated the 6th day but filed on the 8th of January 2021, challenging the jurisdiction of this Court to hear and determine the appeal on its merits.
The Grounds upon which the Objection is premised are Twofold, namely: –
1. This appeal borders on the decision delivered by the Federal High Court in its Appellate Jurisdiction and same requires the leave of the lower Court or this Honourable Court to be clothed with competence.
2. This appeal is incompetent having been brought by the Appellant without seeking leave of this Honourable Court or the lower Court as stipulated by Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The Appellant sought the following Reliefs:
1) An Order of this Court striking out the Appellant’s appeal against the judgment of the Federal High Court (lower Court) delivered by I.N. Buba J. on the 31st of January 2019, in Suit No: FHC/L/CS/153/2017.
2) And for such further or other Orders as this Court may deem fit to make in the circumstances.
The Preliminary Objection was supported by a nine paragraph affidavit deposed to by Emmanuel Ururu, a Legal Practitioner in the law firm of the Respondent/Applicant (hereinafter referred to as the Applicant), as well as a single Exhibit, namely, Exhibit A, which is a copy of the judgment delivered by the Federal High Court and a Written Address of Counsel, wherein this Court was urged to uphold the Preliminary Objection.
In response, Learned Counsel representing the Appellant/Respondent, (hereinafter referred to as the Respondent), on the 8th day of July 2021, filed a Written Address in opposition, urging this Court to strike out the appeal against the judgment with substantial cost awarded against the Appellant.
In further response, Learned Counsel to the Applicant, on the 15th day of September 2022, filed a Reply on Point of Law dated the same date.
In his Written Address, Learned Counsel representing the Applicant formulated a sole Issue for determination namely:-
“Whether this Honourable Court has the jurisdiction to entertain this appeal?”
It was submitted therein on the settled law regarding the jurisdiction of a Court being a threshold issue, which could be raised at any time and even by a Court, before the substantive issues arising from a case are dealt with. Learned Counsel argued that a Court is only competent to adjudicate in a matter when amongst other conditions, the subject matter of the suit is competent before it. Failure to fulfill the condition precedent to the filing of an appeal renders the Notice of Appeal, which is the foundation of an appeal, incompetent and nugatory. Reliance was placed on the case law authorities of KENTE VS ISHAKU & ORS (2017) LPELR 42077 (SC) and MADUKOLU VS NKEMDILIM (1962) 2 SCNLR AT 341.
Learned Counsel, citing the case law authorities of EKUNOLA VS CBN & ANOR (2013) 15 NWLR PART 1377 AT 224 AND BUKOYE & ORS VS ADEYEMO & ORS (2016) LPELR AT 40852, submitted that the exercise of the right of appeal cannot be in vacuum, as there must be a Statute donating that Right. The appellate jurisdiction of the Court of Appeal is donated by Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria, and Sections 241 (1) and (2) thereof, provides for instances where appeal shall be as of Right.
Other matters not covered under these Sections in order to appeal, must first obtain leave of the Federal High Court or the Court of Appeal before an appeal is filed.
Learned Counsel questioned whether the decision was a final decision of the Federal High Court sitting at First Instance and referred to Exhibit A, the judgment of the Court, which showed that the matter originated from a decision of the Registrar of Trade Mark and the Federal High Court heard the Matter as an Appellate Court and not as a Court of first instance, which makes Section 241 (1) inapplicable. According to him, Section 241 (2) will also not apply, as it relates to Interlocutory Appeals, which raises questions of law alone.
Reference was made to the Author, Chief Tom Anyafulude in his Book, Manual of Appellate Proceedings and Brief Writing, where in his opinion, the Author had surmised that under “Section 241 (1) (b), the appeal can only be as of right if the decision is an interlocutory one and is one on Grounds of Law alone. It is not as of right where the decision is interlocutory and where the Court exercises its appellate jurisdiction.
Further, the case law authorities of KAKIH VS PDP (2014) 59 NSCQR AT 1 PER GALADIMA (JSC); ORGAN VS NLNG LTD (2013) 16 NWLR PART 1381, 506 AT 515 AND ALFA SAKA SALAMI VS ALHAJI MOHAMMED JODI MAGAJI MUSE FAMILY (2019) LPELR-47038 (SC) were cited to the effect that in regard to matters not covered under Section 241 (1), the aggrieved party may have to seek leave either from the Federal High Court or the Court of Appeal. Since the subject matter originated from the Registrar of trademarks, it does not fall within Section 241 (1) but 242 (1) of the 1999 Constitution, for which leave is required.
Leave first sought and obtained, is therefore a condition precedent in this instant case and failure to obtain leave, where it is required, renders any appeal filed incompetent, null and void as no jurisdiction can be conferred on the Appellate Court.
Learned Counsel concluded his arguments by arguing that the cumulative effect is that any appeal that does not fall within Section 241 (1) automatically falls within Section 242 (1), for which leave is required to file. Failure of the Appellant to so obtain this leave renders the appeal incompetent and he urged the Court to abort the appeal proceedings and strike out the appeal with substantial costs awarded against the Appellant.
In opposition, the Respondent initially summarized the Grounds on which the objection was based and then conceded that the appeal originated from a decision rendered from the appellate jurisdiction of the Federal High Court, thereby making it a decision not rendered when the Court sat as a Court of First Instance. He relied on Section 241 (1) (b) of the 1999 Constitution to state that there was nowhere in the Constitution that stated that this Sub-Section applied only to Interlocutory Decisions, which raises questions of law alone, as the operative words in the Section are “Decisions in any Civil or Criminal Proceedings”.
As regards the interpretative jurisdiction of a Court, Learned Counsel cited the cases of FRN VS OSAHON (2006) 5 NWLR PART 973, 361 AT 378 AND A-G FEDERATION VS ABUBAKAR (2007) ALL FWLR PART 375 AT PAGE 405 PARAS C-E, to submit that it is only the literal meaning of the words and sentences according to their grammatical meaning that must be employed when construing a Section of a Statute. OLUFUNLOLA OYELOLA ADEKEYE JSC AT PARAS A-D held inter alia that “the Courts are supposed to find out the intention of the Legislature while interpreting the Provisions of the Law passed by them. But there is no magical wand in the supposed directive; it is that intention as expressed in the words used”.
He therefore urged this Court to disregard the arguments of the Applicant’s Counsel.
According to Counsel, the provisions of Section 241 (1) (b) of the Constitution is not restrictive but rather extensive given the deliberate omission by the draftsmen, when it was stated, “Sitting at First Instance” and “Final”. See also RABIU VS KANO STATE (1980) LPELR-2936 (SC). In this case, the Supreme Court, while commenting on Section 220 (1) (b) of the 1979 Constitution, which is impari material with Section 241 (1) (b) of the 1999 Constitution per IDIGBE JSC, held appeals lie as of right in any decisions were questions of law alone are to be decided.
Also cited and relied on is the case law authority of ENTERPRISE BANK PLC VS DAN DOLLARS OIL (NIG) LTD (2015) LPELR-24510) (CA), where the Court in construing this Section stated inter alia that “Under Section 241 (1) (b) where the Ground of Appeal involves questions of law alone, the appeal is as of right whether the decision was Final or Interlocutory. ”Further, “…Section 241 (1) (b) has been interpreted to imbue a right of appeal (as of right) and not by leave of Court to Litigants or Parties on questions of law alone in both interlocutory decisions as well as decisions given in civil or criminal matters by a High Court, whether or not it sits as first instance or on appeals coming from Courts of Lower Hierarchies. Accordingly, appeals will therefore lie as of right from decisions of the High Court sitting on appeal from the lower Court, like Magistrate’s Court, but such an appeal must be purely on questions of law alone.”
Further referral was made to FIDELIS NWADIALO, in his Book CIVIL PROCEDURE IN NIGERIA SECOND EDITION AT PAGES 788-797.
Learned Counsel submitted that it is now settled law that where the Grounds of Appeal are purely on questions of law alone, whether Interlocutory or Final, appeals will lie as of right from decisions of the High Court sitting on appeals from the lower Court.
He also took a critical look at the Grounds of Appeal in the instant appeal in order to determine whether or not they are on grounds of law and whether the appeal is covered by the provisions of Section 241 (1) (b) of the 1999 Constitution (as amended). He discussed the guidelines set in numerous cases determined by the Supreme Court, when distinguishing Grounds of Appeal based on law alone, from facts alone, or from mixed law and facts, and highlighted the cases of BOARD OF CUSTOMS AND EXCISE VS BARAU (1982) NSCC VOLUME 13, AT 358 AND DAIRO VS UNION BANK (2007) 16 NWLR PART 1059 AT 99.
Learned Counsel submitted that a careful perusal of the Notice of Appeal dated the 29th of April 2019, will reveal that the major grouse of the Appellant was that the Learned Trial Judge misapplied the provisions of the Trademarks Act to the facts presented before him, thereby misdirecting himself. Therefore, he concluded that these grounds are of law and would not require the Leave of Court to file an appeal.
He also urged the Court in the event that the omnibus Ground 5 is not considered a ground of law, to strike out the said Ground, and finally, urged this Court to hold that the appeal did not require any leave of Court before filing, making it competent, and refuse the Prayers in the Preliminary Objection with substantial costs awarded against the Applicant.
Replying on Points of Law, Learned Counsel to the Applicant in response to the cited case of ENTERPRISE BANK PLC VS DAN DOLLARS (CITED SUPRA) relied upon by the Respondent, drew the attention of the Court to the recent decision of ZUBAIRU VS KANO (2021) LPELR-55061 (CA) GOMBE DIVISION, which held inter alia that Section 241 of the Constitution did not contain any provision for Further Appeal, in which case, where an appeal is from a decision of the High Court or Federal High Court, not sitting as a Court of first instance, it will not be covered by Section 241, as such a decision is not delivered by the Court in the exercise of its original jurisdiction. In any event, he pointed out that in the ENTERPRISE CASE, the High Court never sat as an Appellate Court and so the facts are not apposite in this case.
Reference was made to Dr. JERRY AMADI’S BOOK, “MODERN CIVIL PROCEDURE LAW AND PRACTICE IN NIGERIA (2ND EDITION, VOLUME 2 AT PAGE 3637), to the effect that once a subject matter of an appeal is one which is not expressly stated in the Constitution, leave of Court will be required to appeal on that subject matter.
However, assuming without conceding that this matter falls under Section 241 (1) (b) of the 1999 Constitution, he noted that a careful analysis of the Notice of Appeal, the Grounds and Particulars, would show that the Notice of Appeal did not contain questions of law alone, but were of mixed law and facts. According to Counsel, Grounds 1 and 3 are Issues of Fact; while Ground 5 is an omnibus Ground of Appeal from which no Issue of fact or law can be raised, relying on the case of AKINLAGUN VS OSHOBOJA 5 SC PART 11 AT 100, and Grounds 2 and 4 along with their particulars are of mixed law and facts.
He finally urged this Court to strike out the appeal in its entirety.
RESOLUTION OF THE SOLE ISSUE
Now, the wordings of Section 241 (1) (b) of the 1999 Constitution are very clear and must be given their literal meaning without any addition or assumed imputations whatsoever. The opinion of an author remains what it is… an opinion and it is up to the Court to carefully peruse the Section and come to a decision on the meaning of the Section referred to, in the context of the arguments raised.
Section 241 (1) (a) and (b) of the 1999 Constitution (as amended), states thus:
“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 Decision in any Civil or Criminal Proceedings before the Federal High Court sitting at first instance;
b) Where the Ground of Appeal involves Questions of Law Alone, Decisions in any Civil or Criminal Proceedings;” (Underlining Mine).
Starting from the standpoint of the word “DECISIONS”, it is clear that the word means a judgment, conclusion, or resolution firmly reached or given, which amounts to a verdict when the mind of the Court is made up on an issue raised. The quality of this word was not described in any way as final or interlocutory and therefore, to inject the word “Interlocutory” into this Section amounts to adding a belief or supposition on what is a decision. Therefore, the conclusion arrived at by the Author referred to in his book needs further explanation on how he arrived at his analysis, in order to unilaterally add the word “Interlocutory”.
There is also the fact that had the draftsmen wanted the Section to relate only to final or interlocutory decisions, they could easily have stated so, as they took their time to explicitly state so under Sub-Section (a).
Another highlighted word in this sub-section is the word “ANY”. This literarily means just about anything. It is not a limiting or restrictive word and can certainly accommodate the widest variety of what it references. There was NO description of the proceedings to connote the fact that the appeal had to be interlocutory or otherwise. Therefore, the Section envisages final, interlocutory, appellate decisions and even case stated. It certainly did not state whether the decision had to emanate from an original or appellate jurisdiction. It simply said “ANY”
The next pertinent word is “ALONE”, which literally means to the exclusion of all others or all else. It denotes that the question of law is unique, tunnel visioned, unequalled and unparalled to all other considerations and therefore, this is a very important factor when considering whether leave is needed initially before an appeal is brought.
Right after the word alone was the sign of a COMMA, which is used for indicating a division in a sentence, as setting off a word, phrase or clause, to set an order to the sequential elements of the sentence and is usually used where there is a listing of items or to separate a Non-Restrictive Clause or Phrase from a Main Clause.
The dictum of GALADIMA JSC in the case of KAKIH VS PDP, cited and relied upon by the Applicant’s Counsel did nothing to support the stance of the Applicant, as it referred to the general principles relating to Section 241, which are not in contention. The decision also rendered in ZUBAIRU VS KANO (2021), Court of Appeal, referred to Section 241 in general, without distinguishing between Sub-Sections (a) and (b).
Further, in the case of ISEGHOHI VS FRN (2017) LPELR-42875 (CA), it was held that “In the instant case, the distinction as to whether or not leave should be sought and obtained before filing an appeal as prescribed by Section 241(1) and Section 242 (1) of the Constitution, as amended, is not dependent only on whether or not an appeal is final or interlocutory.
Rather it is on whether the appeal is on law alone or on facts or mixed fact and law. In other words, even if an appeal is not a final decision as envisaged under S.241 (a) of the Constitution, but it is a decision that involves Questions of Law alone, the appeal can be filed as of right. See JEGEDE VS AKANDE (2014) 16 NWLR, PART 1432, 43 AT 78-79, NWAOLISAH VS NWABUFOH (2011) 14 NWLR (PART 1268) 600 AT 637; NDIC VS OKEM ENT LTD (2004) 10 NWLR PART 850 107 AT 183. Although it is an interlocutory decision of a High Court; an appeal against it to this Court can be brought as of Right on Grounds of Law by virtue of S.241 (1) (b) of the 1999 Constitution. Appeals against decisions of the High Court in Civil and Criminal Proceedings on Grounds of Law are listed in S.241 (1) (b) as one of the appeals that can be brought as of right. Since the Grounds of this appeal have been adjudged herein to be Grounds of Law, then the appeal was competently commenced without Leave of Court….” Per AKOMOLAFE-WILSON, J.C.A. (PAGES 18-19, Paras C-D
See also ENE VS ASIKPO & ANOR (2009) LPELR-8723 (CA), it was held inter alia that “… By the provisions of Section 242(1) of the Constitution of Federal Republic of Nigeria 1999, an appeal from a decision of the Federal High Court or a State High Court on any Ground other than the Grounds in Section 241 of the Constitution, shall be with the Leave of the Relevant High Court or the Court of Appeal. By Section 241(1) (b) of the Constitution an appeal involving questions of law alone requires no leave of either the Court below or the Court of Appeal.” Per ORJI-ABADUA, J.C.A. at PAGE 28, AT PARAS A-E)
In A.G. OF THE FEDERATION VS ANUEBUNWA (2022) LPELR-57750 (SC), held thus: “I have considered the Grounds of Appeal complained about. The Respondent’s contention at Paragraphs 3.42 – 3.55 of his brief is not apposite as Grounds 1, 2 & 3 are indicative of errors of law, which do not require leave of Court as erroneously argued by the Respondent. It is evident that the Respondent misconceives Grounds 1, 2 & 3 to relate to issue of facts notwithstanding that the particulars were very explicit as to the error of law.
In NIGERIA NATIONAL SUPPLY CO LTD VS ESTABLISHMENT SIMA OF VADUZ (1990) LPELR-2004 (SC), OBASEKI, JSC at PAGE 9, PARAS D-F, held “It is settled law that if the Ground of Appeal to the Court of Appeal from the Federal High Court involves questions of law alone the Appellant can appeal as of right. He requires no leave of either the Federal High Court or the Court of Appeal in appeals from the Federal High Court to the Court of Appeal (See Section 220 (1) of the Constitution of the Federal Republic of Nigeria, 1979). See also OJEMEN VS MOMODU (1983) N.S.C.C. (VOLUME 111) 135; (1983) 1 S.C.N.L.R. 188.”
See also: UGO VS UGO (2017) LPELR-44809 (SC) AND ECOBANK VS HONEYWELL FLOUR MILLS PLC (2018) LPELR-45124 (SC) and KRAUS THOMPSON ORG LTD VS UNICAL (2004) LPELR-1715 (SC), MUSDAPHER, J.S.C. held at PAGE 24, Paras B-D, thus: “It is very clear to me, that even though, the decision of the trial Court may be interlocutory for which leave may be required, Section 241(1) (b) of the 1999 Constitution provides that an appeal may be as of right from the decisions of the High Court to the Court of Appeal in the following Cases: –
“(a)…
(b) Where the Ground of Appeal involves questions of law alone, decisions in any Civil or Criminal Proceedings.” (Underlining Mine)
The Apex Court had stated this position in the case of RABIU VS THE STATE (1980), LPELR-2936 SC, which was followed in ENTERPRISE BANK PLC VS DANDOLLARS OIL (NIG) LTD, where IDIGBE JSC, had held inter alia that “…A Right of Appeal, as of Right and not by Leave of Court has by Subsection (1) (b) of Section 220 been given to Parties and Litigants on questions of law alone but, as it appears to me only in (1) Non-Final (i.e. Interlocutory) Decisions and (2) in Decisions given by the High Court, whether in Civil or Criminal Proceedings, when not sitting as a Court of First Instance (i.e. in a Case of ‘Double Appeals’, which really are Appeals coming before the High Court from Lower Courts.)
Therefore, on this Issue, the Court finds that Section 241 (1) (a) and (b) would be applicable in this instant case, if and only if, questions of law are the only Grounds of Appeal.
To properly determine the competence of this appeal, a fundamental issue must first be resolved, which is the basic and main contention between the Parties, and it is important for this Court to consider all the Grounds of Appeal together with the Particulars contained in the Appellant’s Notice of Appeal, to ascertain whether they are grounds of law or of fact or of mixed law and fact.
Recourse will be had to case law authorities on what constitutes a Ground of law, a ground of fact or of mixed law and facts. Reference is made to the case of DAIRO VS UNION BANK (2007) 16 NWLR PART 1059 AT PAGE 99, where these Grounds were distinguished, one from the other and the recent case authority of FOLARIN ROTIMI ABIOLA WILLIAMS ESQ. & ANOR VS ADOLD/STAMM INTERNATIONAL (NIG) LTD & ANOR (2022) 5 NWLR PART 1822, PAGE 40-41 AT PARAS C-A.
In this latter recent case, the Apex Court, PER AGIM JSC, His Lordship held as follows: –
“The mere christening of a Ground of Appeal as a Ground of Law does not necessarily make it a Ground of Law. The Ground must be examined to determine whether in fact, it is a ground of law, or of fact, or grounds of mixed law and fact. So, in determining whether Grounds of Appeal are Grounds of law, or of facts, or of mixed law and facts, the Court is required to thoroughly examine the Grounds of Appeal together with their particulars to see whether any of the Grounds reveal a Misunderstanding of the Law by the lower Court or a misapplication of the law to the fact already proved or admitted, in which case it would be a question of law. Where however, the Ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, it is a Ground of mixed law and fact. A Ground of Appeal, which raises facts, which need to be determined either way, is a Ground of Fact”. Reference was made in this case to the case authorities of OJEMEN VS MOMODU (1983) 1 SCNLR AT 188; UBA LTD VS GMBH (1989) 3 NWLR PART 110 AT 374; STATE VS AJAYI (1996) 2 NWLR PART 423 AT 169 AND FAITH ENT LTD VS BASF (NIG) LTD (2001) 8 NWLR PART 714 AT 242.
Further, the case of NZE VS ONYEACHUGWO (2022) 5 NWLR PART 1822 PER TIJJANI ABUBAKAR JSC, reinforced this proposition when he held that “In order to determine whether a Ground of Appeal is a Ground of law, or mixed law and facts, or facts alone, the Courts examines the Ground of Appeal. Further, the Court must read the Ground and their particulars of error together”.
Therefore, the Grounds as well as their particulars would be thoroughly scrutinized to determine whether they qualified as Grounds of law to justify the continuation of the present appeal before this Court.
The Appellant’s Notice of Appeal can be found at Pages 347-351 of the Records of Appeal. The Grounds and Particulars, which are domiciled at these various pages mentioned above, read as follows: –
GROUND 1:
“The Learned Judge erred in law in holding that no evidence of similarity between the Appellant’s and Respondent’s Trademarks was adduced before the Court.”
a. The Honourable Judge did not avert his mind to the fact that the representation of the two trademarks, were attached to the Statutory Declarations filed by both the opponent and the Respondent at the Trademarks Tribunal.
b. The Honourable Judge also failed to consider Exhibit WII, which Exhibit is pictorial evidence showing the products of both the Appellant and the Respondent being displayed side by side, with the conflicting trademarks displayed on the two products.
c. The Honourable Judge failed to consider the evidence adduced before the Court showing that even though the Respondent applied to register its trademark in Class 291 it was however using the trademark with respect to goods in a different Class, i.e., Class 30, Which further proves that the Respondent’s Application in Class 29, INFINITY RICE CRISPIES LOGO application No. F/TM/2010/19069 was applied for, and registered in bad faith, and therefore not registrable.
GROUND 2:
“The Learned Trial Judge erred in law in holding that the Application of the Applicant/Appellant lacked merit.”
(a) The decision of the lower Court that the Respondent’s
Trademark INFINITY RICE CRlSPlES Application No.F/TM/2010/19069 in Class 29 is registrable, offends the provisions of Section 13 of the Trademarks Act, which stipulates that no trademark shall be registered in respect of any goods or description of goods that is identical with a trademark belonging to a different proprietor and already on the register in respect of the same goods or description of goods, or that so nearly resembles such a trade mark as to be likely to deceive or cause confusion.
(b) The decision of the lower Court that the Trademark INFINITY RICE CRISPIES Application No F/TM/2010/19069 in Class 29 is registrable, offends the provisions of Sections 11 of the Trademarks Act, which stipulates that it shall not be lawful to Register as a Trade Mark or Part of a Trade Mark any Matter, the use of which would, by reason of its being likely to deceive or cause confusion or otherwise be disentitled to Protection in a Court of justice or be contrary to law or morality.
(c) The Learned Judge failed to consider the evidence placed before him and failing to hold that the Appellant’s and Respondent’s Trademarks are confusingly similar.
GROUND 3:
“The Learned Judge erred in law when he agreed with the Respondents that the Appellant was carrying on business in Nigeria contrary to the provisions of Section 54 of the Companies and Allied Matters Act, without first being incorporated in Nigeria.”
a. The Issue of whether or not the Appellant was carrying on business in Nigeria was not raised by the Respondent at the Trademarks Tribunal. Therefore, the issue ought to be raised without the requisite leave of Court having been first sought and had.
b. The Presiding Judge put into context irrelevant consideration and misapplication of the provisions of Section 54 of the Companies and Allied Matters Act in holding that the Appellant was doing business in Nigeria and therefore infringed on Section 54 of CAMA.
a. The sale of products of a foreign company in Nigeria by local distributors of the foreign company, without more, does not amount to doing business in Nigeria.
b. There was no evidence placed before the Court by the Respondent either at the Trademarks Tribunal or the lower Court showing that the Appellant was indeed carrying on Business in Nigeria.
c. As against the Respondent’s allegation that the Appellant lacked Legal Personality, the Appellant filed before the Court, its Certificate of Incorporation, which was filed at the Court below as Exhibit WI2, showing that it was duly registered in the United States of America.
GROUND 4:
“The Learned Trial Judge erred in law in failing to show in his Judgment any reasoned consideration of the Issues raised and argued by the Appellant and the Respondent before him prior to concluding that he agreed with the submission of the Respondent.”
a. The Learned Judge held that he agreed with the submission of the Learned Counsel for the Respondent in toto without considering any of the issues raised by the Parties before him.
b. The judgment of the lower Court delivered on the 31st January 2019 lacked the prerequisites of a valid judgment.
c. In delivering the judgment dated 31st January 2019, the Learned Judge referred to the suit as Suit No. FHC/L/CS/1143/2013, whereas the Suit No is FHC/L/CS/153/17.
GROUND 5:
“The judgment is against the weight of evidence.”
Now, Ground 1 above is challenging the finding of fact of the trial Court that no evidence was adduced before the Court of the similarity existing between the Appellant’s and Respondent’s Trademark. This Ground would only be best determined upon a consideration of mixed law and fact. Also, it is clear that all the three (3) particulars were challenging the evaluation of fact made by the trial Court, which also constitutes a ground of mixed law and fact. Therefore, Ground One is found to be a Ground of mixed law and fact.
Considering Ground 2 together with its Particulars, it can be seen that the Ground is basically a Ground of Law.
In respect of Ground 3, while this Ground is couched as Ground of law, item E is however on the cusp as it deals with evaluation of evidence tendered-Certificate of incorporation which was filed at the Court below as Exhibit W12. Therefore, this Ground 3 can holistically be regarded as a Ground of Law.
In respect of Ground 4, the first two particulars are founded on law but the third Particular, in Paragraph C, challenges the finding of fact made by the trial Court when the Learned Judge referred to the suit as Suit No, FHC/L/CS/1143/2013, whereas the Suit No is FHC/L/CS/153/17. Therefore, this Ground could arguably be considered as a Ground of mixed law and fact.
However, in respect of Ground 5, which is the omnibus ground, this is a ground based on allegations of fact to the effect that the judgment of the trial Court is against the weight of evidence. It is a statement of fact. This means this Court will have to consider all the evidence adduced to confirm whether the statement is true or false. Therefore, Ground 5 is a Ground of Fact simpliciter.
In the case of EKSU & ORS VS BABALOLA (2019) LPELR-49345 (CA) ELECHI, J.C.A. (PAGES 41-42, Paras D-C) held “…This issue was distilled from the omnibus ground of appeal (Ground 6). It is trite that an appeal predicated on the omnibus or general ground of appeal cannot be used to raise an issue or issues of law. Such issue(s) of law must be raised as a separate ground of appeal and not made on adjunct to the omnibus ground. See also: F. M. H VS. S. A LTD (2009) 9 NWLR (PART 1145) 193 AT 209 AND CALABAR SOCIETY LTD VS IKOT (1999) 14 NWLR (PART 638) AT 225.
HER LORDSHIP MARY UKAEGO PETER-ODILI, JSC made this clear in MAINASARA VS FBN (2021) LPELR-56612 (SC) (PAGE 40, PARAS C-E), thus: “It is trite that the omnibus ground of appeal, which alleges that a decision of a trial Court is against the weight of evidence is, by its inherent nature, not a Ground of Law and failure to seek leave, renders such Ground incompetent. See NWADIKE VS IBEKWE (1987) 4 NWLR (PART 67) 718 AT 743, PARA H AND 744, PARA A; TERIBA VS ADEYEMO (2010) 11 NWLR (PART 1211) 243 AT 267, PARA H.”
Also in NASIRU VS STATE (2021) LPELR-55637 (SC) Per AUGIE, J.S.C. PAGE 3, AT Paras B-E, Her Lordship held thus: “The Respondent is right that an Omnibus Ground of Appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law – see AKINLAGUN VS OSHOBOJA (SUPRA) AND OSOLU VS OSOLU (SUPRA), wherein this Court explained that:
When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence.”
Conclusively, in the recent case of EMETUMA & ORS VS NWAGWU & ORS (2022) LPELR-56861 (SC), it was held that “The fact that an omnibus ground of appeal fundamentally raises a question of fact had long been reiterated in a plethora of authorities by this Court. In the case of ATUYEYE VS ASHAMU (1987) LPELR – 638 (SC), this Court was reported to have aptly held that the proper ground against the findings of fact is the omnibus ground, that the ‘judgment is against the weight of evidence.’
Recently, HER LORDSHIP MARY UKAEGO PETER-ODILI, JSC clarified this in the case law authority of WILLIAMS & ANOR VS ADOLD/STAMM INTL (NIG) LTD & ANOR (2022) LPELR-56593 (SC) thus:
“It is to be stated that where leave is required before an appeal is taken but which was not obtained the appeal is incompetent as the Court lacks jurisdiction. Leave is a condition precedent to the exercise of the right of appeal. It goes to the question of jurisdiction of the Appellate Court to the appeal. It will be an accepted fact that where this condition precedent is necessary but has not been fulfilled, there is legally speaking no appeal.”
In view of the foregoing plethora of judicial authorities, while Grounds 1, 2, 3 and 4 are Grounds of Law, Ground 5 is Ground of Fact, which made it important for the Appellant to seek leave before filing this Notice of Appeal. Having failed to do this, this appeal becomes incompetent. Reliance is placed on Section 242 of the 1999 Constitution of Federal Republic of Nigeria, as amended; NWAGBARA VS JADCOM LTD (2021) LPELR-55329 (SC); OGEMBE VS USMAN & ORS (2011) LPELR-8155 (SC).
HER LORDSHIP MARY UKAEGO PETER-ODILI, JSC made this clear in MAINASARA VS FBN (2021) LPELR-56612 (SC) thus:
“It is trite that the omnibus ground of appeal which alleges that a decision of a trial Court is against the weight of evidence is, by its inherent nature, not a ground of law and failure to seek leave renders such ground incompetent. See: NWADIKE VS IBEKWE (1987) 4 NWLR (PART 67) 718 AT 743, PARA H AND 744, PARA A; TERIBA VS ADEYEMO (2010) 11 NWLR (PT.1211) 243 AT 267, PARA H.”
In view of the foregoing plethora of judicial authorities and analysis done on all the Grounds contained in the Notice of Appeal, only Grounds 2 and 3 among all the Grounds qualify as Grounds of Law alone, as the remaining Grounds are Grounds of Mixed Law and Fact and Fact Simpliciter.
The Learned Counsel to the Respondent, in a tacit concession that that Ground 5 is a Ground of Fact, submitted that this Honourable Court could strike out the Ground. I need to state clearly that this Court does not have the power to strike out any Ground in order to purge the appeal of the need to be based on leave. Leave to appeal is a condition precedent that must be met before proceeding with the appeal. This means without leave, the Court does not have power to even open the appeal at all. It is the leave that will confer the jurisdiction on the Court to consider the appeal.
Recently, HER LORDSHIP MARY UKAEGO PETER-ODILI, JSC clarified this in the case law authority of WILLIAMS & ANOR VS ADOLD/STAMM INTL (NIG) LTD & ANOR (2022) LPELR-56593 (SC) thus:
“It is to be stated that where leave is required before an appeal is taken but which was not obtained the appeal is incompetent as the Court lacks jurisdiction. Leave is a condition precedent to the exercise of the right of appeal. It goes to the question of jurisdiction of the appellate Court to the appeal. It will be an accepted fact that where this condition precedent is necessary but has not been fulfilled, there is legally speaking no appeal.”
Also recently in JAMES ANORUO NZE VS OSITA ONYEACHUGWO (2022) 5 NWLR PART 1822 PAGE 187 AT 191, TIJJANI ABUBAKAR, JSC held that “Where leave of Court is required for an appeal, but none was obtained, the condition precedent to the validity of such an appeal has not been fulfilled, and the appeal is incompetent, and the Appellate Court has no jurisdiction to entertain same. In such case, the Court would not hear the Appellant until he has sought and obtained Leave of Court to Appeal. Reference was made to the decided case law authorities of UKPONG VS COMM, FINANCE AND ECON DEVELOPMENT (2006) 19 NWLR PART 1013, AT 187; NZEI VS U.N.N (2017) 6 NWLR PART 1561 AT 300; AULT & WILBORG (NIG) LTD VS NIBEL INDUSTRIES LTD (2010) 16 NWLR PART 1220 AT 486; UBA PLC VS STAHLBAU C.M.B.H. (1989) 3 NWLR PART 110 AT 374 AND DANKOFA VS FRN (2019) 9 NWLR PART 1678 AT 468
FINDING: Therefore, it was important for the Appellant to have sought the leave of Court before filing this Notice of Appeal. Having failed to do this, this appeal becomes incompetent. Reliance is placed on Section 242 of the 1999 Constitution of Federal Republic of Nigeria as amended. NWAGBARA VS JADCOM LTD (2021) LPELR-55329 (SC); OGEMBE VS USMAN & ORS (2011) LPELR-8155 (SC).
Being incompetent, there is no alternative fate for this appeal than to be struck out.
This appeal is hereby struck out.
No order is made as to cost.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my lord ADEBUKUNOLA ADEOTI BANJOKO, JCA and I agree with my lord that the appeal is incompetent and must be struck out.
Section 241 (1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria is very clear about when decisions from the Federal High Court or a High Court shall lie to the Court of Appeal as of right. It is either: (1) when the decision in any civil or criminal proceedings before the Federal High Court is one in which that Court is sitting is one at first instance and the decision is final; or (2) where the ground of appeal in any civil or criminal proceedings involves questions of law alone. In the case at hand, the appeal is not against the final decision of the Federal High Court sitting at first instance since that matter went to that Court on appeal. Further, the grounds of appeal do not involve questions of law alone. A cursory look at the grounds reveal that they are at best, of mixed law and facts. The appeal therefore, is one that, pursuant to Section 242 (1) of the 1999 Constitution, will require leave of this Court or the lower Court before it can be entertained. No leave having been sought and obtained, the appeal is incompetent.
My lord has in the lead judgment cited several authorities of this Court and the apex court on the issue of when an appeal is as of right.
I think it is not inappropriate to say that where the law is crystal clear, as in this case, it does no harm to counsel if he honorably withdraws the appeal in order to do the right thing, which is to seek leave to appeal. All said, I too, strike out the appeal for being incompetent.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in advance, a draft copy of the ruling just rendered by my learned brother ADEBUKUNOLA ADEOTI BANJOKO JCA. The law is settled that failure to seek and obtain leave to file an appeal where leave is required renders the appeal incompetent and liable to be struck out. By Section 242 of the 1999 Constitution, as amended, where leave is required to appeal to this Court and such leave is not obtained, the appeal is incompetent and liable to be struck out. In the present appeal, grounds 1 and four (4) are grounds involving mixed law and fact. Leave is therefore required which was not obtained as shown from the printed records. The appeal is therefore struck out and is therefore struck out by me. I abide by the consequential orders in the lead judgment.
Appearances:
STANLEY NMOR, ESQ. For Appellant(s)
O.D SHANGOTOLA, ESQ. WITH HIM, EMMANUEL, ESQ. For Respondent(s)
