MR. DONATUS NWEZE v. CHIEF EDDIE BROWN AYOGHU
(2013)LCN/6357(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2013
CA/J/325/2007
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
MR. DONATUS NWEZE Appellant(s)
AND
CHIEF EDDIE BROWN AYOGHU Respondent(s)
RATIO
THE TEST FOR DECIDING WHETHER AN ORDER OF A COURT IS FINAL OR INTERLOCUTORY
In the case of Aloor V. Ngene (2007) 17 NWLR Pt.1062 page 163 @ 178, the Supreme Court stated that the test for deciding whether any order, decision or judgment of a Court is final or interlocutory is, does the order or decision made dispose of the rights of the parties? If it does, then it is a final one, it is does not, it is an interlocutory one. Where a decision of a Court clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case leaving the parties to go back to claim other rights in the Court, then the decision is interlocutory.
In Union Bank Plc. V. Bonas Marcus Industries Ltd. Ors (2005) 7 SCNJ p. 406 @ 411, the supreme court per KATSINA ALU J.S.C. (as he then was) when dealing with the question of what is a final or interlocutory decision said:
….”This area of the law in the Nigerian con need not raise any confusion the ingenuity of counsel notwithstanding.
There are cases galore decided by this Court on this point to the effect that a decision of this Court is final where it determines the right of the parties. It seems to me therefore that the real test for determining this question ought therefore to be this:
Does the judgment or order as made finally dispose of the rights of the parties?. If the judgment or order has determined the rights of the parties, then it is unquestionably a final order but if it does not, it is then an interlocutory order TOBI, J.S.C. on page 17, put it in these words:
“The real test for determining whether the decision of Court is final or interlocutory ought to be by answering the question: does the judgment or order as made finally dispose of the rights of the parties? If it does, it ought to be treated as a final one, but if is does not, it is an interlocutory order. Where a decision of a Court clearly and wholly disposes of all the right of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues leaving rights in the court, then it is interlocutory.” PER BDLIYA, J.C.A.
WHETHER OR NOT AN APPELLATE COURT HAS JURISDICTION TO ENTERTAIN AN APPEAL WHERE IT IS ADJUDGED INCOMPETENT AB INITIO
Where an appeal is adjudged incompetent “ab initio” the Appellate Court has no jurisdiction to entertain and determine such appeal. Same is to be struck out. See Mosoba vs. Abubakar (2005) 6 NWLR Pt. 922 P.460; Odofin vs. Agu (1992) 3 NWLR pt. 229 P. 350; Ogidi vs. Egba (1999) 10 NWLR pt. 621 p. 42; Iorhule vs. Ikyomke (1998) 13 NWLR Pt.581 P. 293 and Ogbechi Vs. Onochie (No. 1) (1985) 12 NWLR Pt.23 P. 484.The preliminary objection to the competence of the appeal by the respondent is hereby sustained.
The law is trite, where a preliminary objection on the competence of an appeal is upheld or sustained, it is not necessary to go further to consider the arguments in support of the issues for determination filed by the parties in the appeal. Same is to be struck out, see Ekwerekwu vs. Egache (2010) 14 NWLR Pt.1213 P.194 @ 206; Onyemeh vs. Egbuchulam (1996) 5 NWLR Pt. 448 P.255; NEPA vs. Ango (2001) 15 NWLR pt. 737 p. 627 and N.N.B. Plc. vs. Denclag Ltd. (2005) 4 NWLR Pt. 916 P.549. PER BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A (Delivering the Leading Judgment): This appeal is against the ruling of the Bauchi State High Court (hereinafter referred to as the trial Court) in suit No. BA/214/2005 delivered on the 3rd of May, 2006. By a writ of summons and a statement of claim filed on the 24th of November, 2005, the Respondent (then plaintiff) sued the appellant (as defamed) before the trial Court seeking the following reliefs:
(a) A declaration that the libelous publications sponsored by the defendant (appellant) against the plaintiff (respondent) have seriously defamed him.
(b) An immediate retraction and public apology of all the offensive and libelous publications, published against the appellant by the defendant in 3 National and weekly read News Papers.
(c) N100,000,000.00 (one Hundred Million Naira) only being general and aggravated damages for defamation of character.
(d) Cost and expenses of the action.
The appellant entered conditional appearance to the originating processes and raised a preliminary objection to the claims of the respondent. The trial court took arguments on the preliminary objection and in a considered ruling over-ruled and dismissed it. Dissatisfied with the ruling of the court, the appellant appealed to this court. The Notice of appeal was filed on the 11th of May, 2006 containing two (2) grounds of appeal. The grounds of appeal without their particulars are thus:
GROUND ONE
The learned trial judge erred in law in holding that the preliminary objection of the Defendant borders on technicalities alone which does not do substantial justice to the matter.
GROUND TWO
The learned trial judge erred in law when he held as follows: “With great respect a lot of injustice shall occasion if the courts dogmatically rely on rules of courts AND DECIDED CASES that deny hearing to the parties who are aggrieved. The Fawehinmi case has provided two options either to request for publication or have the case struck out-while the Supreme Court admonished that it is better to wait until a Statement of Defence is filed. I commend both counsel for their effort but I hereby refuse this application and order the Defendant to file his Statement of Defence.”
The appellant filed his Brief of argument on the 22nd of November, 2007, wherein (two) 2 Issues were distilled from the 2 grounds of appeal for the determination of the court which are thus:
(i) Whether the appellant’s preliminary Objection in an action for defamation such as this, which complains about non-disclosure of particulars of “Publication” is an objection that borders on technicalities.
(ii) Whether the trial court rightly interpreted and applied the decision in Fawehinmi V. Akilu (1994) 6 NWLR Pt. 381 P.387 to the ruling delivered on 3rd May, 2006.
The Respondent filed his Brief of argument on the 8th of January, 2008, wherein 2 Issues were formulated for the determination of the Court in the appeal. They are:-
(i) Whether or not the respondent’s (Plaintiff before the trial Court) statement of claim in this case disclosed a reasonable cause of action against the appellant.
Whether or not in the special circumstances of this case, the Court below was right in law and fact bound to follow the decision in Fawehinmi Akilu ( 1994) 6 NWLR Pt. 351 P. 387.
On the 11th of July, 2008, the respondent filed a Notice of preliminary objection challenging the competence of the appellant’s appeal to this Court against the ruling of the trial Court.
The appellant filed a Reply Brief on 2nd February, 2011 wherein he responded to the respondent’s submissions on the preliminary objection and the Brief of argument.
The appeal came up for hearing on 23th April, 2013. Learned Counsel to the respondent referred to the submissions on the Preliminary Objection, adopted same and urged the Court to uphold it and dismiss the appeal for being incompetent. Learned Counsel to the appellant referred to the Reply Brief wherein he responded to the submissions on the preliminary objection. He urged the Court to over-rule the preliminary objection for it lacked merit. Learned Counsel then referred to the Briefs of argument of the appellant and adopted same as the argument in the appeal. He urged the Court to allow the appeal and dismiss the case of the respondent. Learned counsel to the respondent referred to the Brief of argument and adopted same as the argument in the appeal. He urged the Court to dismiss the appeal for it lacked merit.
At the hearing of the appeal learned counsel to the respondent argued the preliminary objection before the appeal was argued. It is the practice of appellate Courts that whenever a preliminary objection is raised challenging the competence of the Court or the appeal itself, such preliminary objection must first of all be dealt with and resolved before arguing the appeal. This is necessary when the issue of jurisdiction of the Court to hear the appeal is raised or questioned see Ikem v. Pisowieren, (2010) 1 NWLR PT. 1174 P. 147; Nwanwata v. Esurei (1998) 8 NWLR Pt. 563 P. 650: Tambco Leather Works Ltd. v. Abbes (1998) 12 NWLR PT. 578 p.548, Onugha v. Ezeigwe (2011) 13 NWLR PT. 1263 p. 184; and Uba v. Yawe (2000) 8 NWLR Pt. 670 P. 739. The preliminary objection raised by the respondent challenging the competence of the appeal against the ruling of the trial Court is therefore to be taken and resolved before the consideration of the appeal.
The Notice of preliminary objection raised by the respondent challenging the competence of the court and or the appeal against the ruling of the trial Court delivered on 3rd of May, 2006 is as follows:
“As can be seen, ground one(1) above does not complain of a finding of fact of the court below nor does it complain that the lower court failed to advert its mind to a fact or some facts, It merely complains that based on the undisputed facts that certain particulars were not pleaded by the Respondent in the statement of claim whether an objection as to the absence of those particulars amounts to technicality or not as held by the lower court. The question under this grounds is – does the law regard such an objection as mere technicality or not? This is a question of pure law and not of fact of mixed law and fact”.
Tsuwa Esquire learned Counsel to the respondent submitted that the appeal against the ruling of the trial Court delivered on the 3rd of May, 2006 is in competent for non-compliance with both constitutional and statutory provisions. It is his submission that the gravamen of the objection before the trial Court was whether the respondent’s statement of claim disclosed a cause of action against the appellant. That in order to resolve this issue a consideration of the facts averred in the statement of claim is necessary to determine whether or not it disclosed a cause of action. The issue to be determined therefore is one of facts and mixed law which requires leave of either the trial Court or this Court which must be sought and obtained before filing the Notice of appeal. The case of Okaye v. Chief Land Officer (2005) 4 NWLR P. 158 @ 167 was cited to reinforce the submissions supra.
Learned Counsel further contended that the ruling of the trial Court was an interlocutory one having not finally disposed of the rights of the parties. Therefore, by section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as Altered , and section 14 (1) of the Court of Appeal Act 2004, (as amended), the leave of either the trial Court or this Court was mandatory before filling the appeal by the appellant. The case of Excel Plastic Industries Ltd. V. FBN Plc. (2005) ALL FWLR PT.1394 @ 1419 was cited to fortify the submissions supra. It was further submitted that having not sought and obtained the leave of the trial Court or this Court, the appeal filed by the appellant is incompetent. This Court has no jurisdiction to entertain it. The case of Union Bank Plc. V. Sogunro (2006) 7 SCNJ p. 296 @ 403 was cited to buttress the submissions supra. The cases of SPDC Nigeria Ltd. V. Katad (Nig) Ltd. (2005) All FWLR pt. 263 P.675 @ 689 and Excel Plastics Ind. Ltd . v. F. B. N. (supra) p. 1426 were also cited to reinforce the submissions supra. Concluding, learned counsel did submit that the instant appeal is against an interlocutory ruling with all the grounds of appeal consist of facts and of mixed law and facts which render renders it mandatory for the leave of either the trial Court or this Court to be obtained first before filing the appeal. Having not obtained the leave, the appeal is incompetend. This Court has no jurisdiction to entertain it. Learned Counsel did urge the Court to hold so, and dismiss the appeal.
In his response to the submissions of learned Counsel to the respondent, Ugochukwu Esq. for the appellant, did refer to the grounds of appeal contained in the Notice of Appeal and submitted that the two (2) grounds of appeal do not consist of issues of facts or of mixed law and facts. Learned Counsel specifically referred to the two (2) grounds of appeal and contended that only issues or questions of law are contained therein, not of mixed law and facts or of facts. Learned counsel concluded his submission by urging the court to hold that the grounds of appeal are purely of law, not of mixed Law, and or facts. The preliminary objection be over ruled and dismissed.
It may be helpful, at this juncture to restate whether an appeal against the judgment and or ruling of a High Court, Sharia Court of Appeal, customary court of Appeal, the National Industrial Court, and other superior Courts of record is of right or with leave of Court. The provisions of Sections 241 and 242 of the 1999 Constitution (Altered) provide for when an appeal to this Court can be as of right or with the leave of either the trial court or the court of Appeal.
Sections 241 (1) and (2) of the 1999 Nigerian Constitution (Altered) provides as follows:
“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 of 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 an Act of the National Assembly.
2. Nothing in this section shall confer 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 had 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.”
Section 242 (1) o1’the said constitution provides as follows:
“242(1) Subject to the provisions of section 247 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 High Court or that High Court or the Court of Appeal.”
The ruling of the trial Court which gave birth to this appeal can be found on pages 28 to 32 of the record of appeal. Is an appeal against that ruling to this Court be as of right or with Court of either the trial Court of this Court? It is vital to know if the ruling of 3rd May 2006 by the trial Court is a final or an interlocutory one. If it is a final one, then the provisions of section 241 (1) of the Constitution would apply and an appeal to this Court from the ruling of the trial Court would be as of right.
If the said ruling is an interlocutory one, and the grounds of appeal consists of law alone, then an appeal against such decision would also be as of right. But if it is an interlocutory decision, and the grounds of appeal consists of mixed law and facts or facts alone then leave of either the trial Court or this Court must be obtained before filing an appeal. The question that now arises, is this, when is a decision of a Court final or an interlocutory one.
In the case of Aloor V. Ngene (2007) 17 NWLR Pt.1062 page 163 @ 178, the Supreme Court stated that the test for deciding whether any order, decision or judgment of a Court is final or interlocutory is, does the order or decision made dispose of the rights of the parties? If it does, then it is a final one, it is does not, it is an interlocutory one. Where a decision of a Court clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case leaving the parties to go back to claim other rights in the Court, then the decision is interlocutory.
In Union Bank Plc. V. Bonas Marcus Industries Ltd. Ors (2005) 7 SCNJ p. 406 @ 411, the supreme court per KATSINA ALU J.S.C. (as he then was) when dealing with the question of what is a final or interlocutory decision said:
….”This area of the law in the Nigerian con need not raise any confusion the ingenuity of counsel notwithstanding.
There are cases galore decided by this Court on this point to the effect that a decision of this Court is final where it determines the right of the parties. It seems to me therefore that the real test for determining this question ought therefore to be this:
Does the judgment or order as made finally dispose of the rights of the parties?. If the judgment or order has determined the rights of the parties, then it is unquestionably a final order but if it does not, it is then an interlocutory order TOBI, J.S.C. on page 17, put it in these words:
“The real test for determining whether the decision of Court is final or interlocutory ought to be by answering the question: does the judgment or order as made finally dispose of the rights of the parties? If it does, it ought to be treated as a final one, but if is does not, it is an interlocutory order. Where a decision of a Court clearly and wholly disposes of all the right of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues leaving rights in the court, then it is interlocutory.”
This Court in Olateju V. Comm. For Lands & Housing, Kwara state (2010) 14 NWLR 1213 P.1297 @ 318 had an occasion to state the position of the law on when a judgment or order is final or interlocutory per ADAMU J.C.A. thus:
“What is important to determine is whether the order or judgment passed by the Court has finally determined the rights of the parties in the proceedings in question.
If the rights of the parties have been finally determined, the result and order should be regarded as final. If otherwise, it will then be an interlocutory…”
It is to be noted that the ruling delivered by the trial Court on the 3rd of May, 2006 was in respect of a preliminary objection as to whether there was ca use of action disclosed by the plaintiffs/respondent’s pleadings or not. The preliminary objection was argued, considered and the trial Court ruled that the objection was without merit. The appellant was not satisfied with that ruling, hence the appeal to the Court.
Certainly that ruling can not be a final one in that the rights of the parties were not disposed of by the trial Court after the ruling, the parties have to go back to the trial Court for the full hearing of the case, whatever the judgment of this Court would be. In otherwords, the ruling of 3rd May, 2006, was interlocutory decision in a pending suit which did not finally or wholly determined the rights of the parties. In view of the foregoing, I am of the firm view that the ruling delivered on the 3rd of May, 2006 which did not finally and wholly determined the rights of the parties is therefore an interlocutory decision. Can an appeal against such ruling be as of right or with the leave of either the trial Court or this Court?
By the provisions of Section 242 (b) of the 1999 constitution (as amended) subject to the provisions of Section 241 of the said Constitution an appeal lies from the decision of the High Court to the Court of Appeal with leave of the High Court or the Court of Appeal. Consequently, an appeal lies from the decision of the High Court with leave of the High Court or the Court of Appeal in two (2) circumstances. Firstly, appeals in interlocutory decisions of the High Court involving facts or mixed law and facts. Secondly, appeal in final decisions of the High Court in “double appeals involving mixed law and facts or facts alone. See Maduabuchukwu V. Maduabuchukwu (2006) 10 NWLR Pt. 989 P. 475 @ 493 and Aqua V. Ondo State Sports Council (1988) 4 NWLR Pt. 91 P. 622.
In Okon v. Ekanem (2002) 15 NWLR Pt. 798 P.106 @ 124 – 125, this Court per EDOZIE, J.C.A, when confronted with the issue of whether an appeal is of right or with leave of Court had this to say:
“For a proper determination of this arm of the preliminary objection, it is appropriate to refer to pertinent provisions Section 241 (1) and 242 (1) of the 1999 constitution which reads as follows:
“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) Find decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance
(b) Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings:
(c) …
(d) …
(e) …
(f) …
Subject to the provisions of S.241 of the Constitution, an appeal shall lies from the decision of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that Court or the Court of Appeal”
The learned Justice continued on page 125 thus:
“As can be seen from the above provisions, two rights of appeal are created, that is, appeal as of right under section 241 under circumstances listed in subsection 1 (a) to (f) and with leave of the Court pursuant to section 242 (1). Under the first category an appellant can appeal as of right without leave of the Court below or the court of Appeal. In the case of appeal under section 242 (1) an appellant is required to obtain leave from the appropriate High Court or the Court of Appeal before filing his appeal.”
From the foregoing, it is not in dispute that an appeal against an interlocutory decision of the High Court which does not finally disposes of the appeal finally or, wholly and the grounds of appeal consists of facts, or mixed law and facts, leave must be obtained first before filing an appeal to the court of Appeal. See also Ajani v. Giwa (1986) 3 NWLR Pt. 32. 797 and Onwe V Oke (2001) 3 NWLR Pt.700 P.406.
In order to decide whether the appellant in this instant appeal ought to have sought and obtained leave of the trial Court or this Court before filing his appeal or not, it is necessary to examine the grounds of appeal which are contained in the Notice of appeal filed against the ruling of the trial Court delivered on 3rd of May, 2006; to see if the issues raised therein are of law alone or of facts or mixed law and facts. The grounds of appeal filed against the ruling of the trial Court are found on page 33 to 34 of the record of appeal. For an easier comprehension of the grounds of appeal, same are reproduced hereunder:
GROUND ONE
The learned trial judge erred in law in holding that the preliminary objection of the Defendant borders on technicalities alone which does not do substantial justice to the matter.
PARTICULARS OF ERROR
1) The preliminary objection of the Defendant was not one based on technicalities because it revolves around the inadequacy of the Statement of Claim in respect of “publication” of the defamatory materials, the words complained of in the letter, the identify of the letters themselves, etc. These are the substantial issues a Statement of Claim alleging defamation must contain, not technical Points.
2) The Court of Appeal in the case of FAWEHINMI V AKILU (1994) 6 NWLR (PARTS 351) 387, (which was made available to the court) had already considered the issue whether such requirements in a Statement of Claim on defamation are mere technicalities and ruled that they are mandatory requirements.
GROUND TWO
The learned trial judge erred in law when he held as follows: “With great respect a lot injustice shall occasion if the courts dogmatically rely on rules of courts AND DECIDED CASES that deny hearing to the parties who are aggrieved. The Fawehinmi case has provided two options either to request for publication or have the case struck out-while the Supreme Court admonished that it is better to wait until a Statement of Defence is filed. I commend both counsel for their effort but I hereby refuse this application and order the Defendant to file his Statement of Defence”.
PARTICULARS OF ERROR
1) By the principle of share decisis the High Court is bound by the decisions of the Court a of Appeal and it amounts to judicial rascality for a High Court to pronounce that a Court of Appeal decision is based on more technicality which deny hearing to the Parties.
2) The Supreme Court decision in question ie. A.G. FEDERATION V. GUARDIAN NEWS PAPERS (1999) 5 SCNJ 824, referred to by the learned Chief Judge was not an action based on defamation and it did not, by any stretch of logic, overrule the decision in FAWEHINMI V AKILU (supra).
3) The Defendant cannot be ordered to file his Statement of Defence when what he complains of is lack of particulars in the Statement of Claim to which he cannot respond.
The guiding principles in determining whether a ground of appeal is of law alone, or of mixed law and facts, or of facts alone have been considered by the Supreme Court in a plethora of cases by. In C.C.C.T.C.S. LTD. V. Ekpo (2006) 6 NWLR Pt. 1083 P. 762 @ 407 – 408, Muhammad, J.S.C. said:
“I think the criterion of distinguishing whether a ground of appeal is that of law, fact or of both mixed law and facts poses some difficulties and alludes the minds of many counsel, But this court has, times without number, in a litany of case, laid down the general principles in making the distinction between different types of grounds of appeal. For the purposes of elucidation however, I think I should re-state some of these principles.
1. The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned 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.
2. Where a ground complains of a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
3. Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
4. A ground which raises a question of pure fact is certainty a ground of fact.
5. Where the lower court finds that 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.
6. Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
7. Where the lower court approached the construction 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.
8. Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
9. Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
10. Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if siesed of the issue, that conclusion is not an error in law.
11. Where a trial court fails to apply the facts which it has found correctly to the circumstance of the case before it and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial, court, the ground of appeal alleging the misdirection is a ground of law not of fact.
12. When the Court of Appeal finds such application to he wrong and decides to make its own findings such findings made by the court of Appeal are issues of fact and not of law.
13. Where the appeal court interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
14. A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence of 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)”.
The learned Justice continued on page 409 to 410 as follows:
“The above principles accord with the previous practice of this court in considering the thorny and intricate issues of law and fact. See the cases of:
Board of Customs and Excise v. Barau (1982) 10 SC 48; Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.29) 484. In fact in a more concise form, Karibi-Whyte, J.S.C. summarized these general principles as follows:-
“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 concisely stated a question of law in this sense if one predetermined and authoritatively answered by the laws. 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 … A question of the construction of statutory provision fails within this meaning. The third meaning is in respect of those questions which normally answers questions on 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.
On what a question of fact is that learned Justice stated thus, “Like 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 judges is a question of fact.”
In Ene Vs. Asikpo (2010) 10 NWLR Pt. 1203 P.477 @ 510 this Court stated that to distinguish a ground of law from a ground of fact, what is required is to examine the ground to see whether the grounds of appeal reveals a misunderstanding by the lower or trial court of law or misapplication of the law by the court to the facts already proved or admitted; in which case, if would be a question of law. Where the ground requires questioning the evaluation of facts by the lower court before the application of the law, it would be tantamount to a question of mixed law and fact. See also Hassan V. Itanyi (2002) 8 NWLR Pt.770 p. 581; Ugbuaji Vs. Akinloye-Sowe Mimo (2008) 16 NWLR Pt.1113 P.278; and Anoghalu Vs. Oraelosi (1999) 13 NWLR Pt.634 P. 297.
Having given a dispassionate consideration and examination of the two (2) grounds of appeal which have been reproduced hereinbefore in this judgment, I am of the candid view that the two (2) grounds of appeal contained on pages 24 – 34 of the record of appeal are of mixed law and facts. This is so because the two issues formulated by the learned counsel to the parties in their respective Briefs of argument can not be resolved without the consideration and the application of the facts averred in the Statement of Claim filed in the suit before the trial court.
Having decided so, the consequence is that leave of the trial court or this court is a must before filing the appeal by the appellant to this court. I have travelled, so to speak, through out the length and breath of the record of the proceedings before the trial court, which is the record of appeal to this court. I must say without hesitation that the appellant did not seek and obtain the leave of either the trial court nor this court. Is the appeal therefore competent? I doubt it very much. The law is trite that where an appeal is against an interlocutory decision of a court, and the grounds of appeal consists of facts alone or of mixed law and facts.
leave to appeal must be sought and obtained first before filing the appeal. See Ene Vs. Asikpo (2010) 10 NWLR Pt.1203 P.477 @ 512 where Oriji-Abadua J.C.A. said:
“It is trite leave of court will be required where such appeal consists of grounds of facts or mixed law and facts; but this is not to say the whole appeal will be struck out when there are grounds of law that can sustain it.”
I have examined thoroughly the two (2) grounds of appeal contained in the Notice of appeal, none of them consists of issues of law alone. The two (2) grounds of appeal are essentially of mixed law and facts as had been held earlier in this judgment. The appellant ought to have sought and obtain leave of the trial court or this Court before filing his appeal against the interlocutory decision of the trial Court. Having not done so, the appeal is incompetent for the reasons adumbrated earlier in the judgment. Where an appeal can only be filed with the leave of court, it is that leave that confers jurisdiction on the court, therefore, it is very vital and fundamental that leave be obtained before an appeal is filed. In the absence of such leave, the appeal is rendered incompetent as the court is not vested with the jurisdiction to entertain it. See Okon Vs. Ekanem (2002) 15 NWLR Pt.789 P.106 @ 125; Savannah Bank Plc. vs. Kyentu (1998) 2 NWLR Pt. 536 P. 41; C.M.B. (Nig.) Ltd. Vs. Usane Construction (Nig.) Ltd. (1996) 8 NWLR Pt. 466 P.372; Shaka Vs. Salisu (1996) 2 NWLR Pt.428 P.22; Mosuru Vs. Akinyele 13 WACA 112; Yakubu Vs. Gov. Kogi State (1995) 3 NWLR Pt. 393 P. 367; C.C.B. Ltd. Vs. Ogwuru (1992) 3 NWLR Pt.284 P.630.
What is the effect of the failure of the appellant to obtain leave of either the trial court or this Court on the appeal against the ruling of the trial court to this Court. In Ekwerekwu Vs. Egboche (2010) 14 NWLR pt. 1213 P.194 @ 206, this court held that where an appeal requires leave of court to be obtained and the leave was not obtained, such appeal is incompetent and would be struck out. This is so because a court of law has no jurisdiction to hear an incompetent appeal. Where an appeal is adjudged incompetent “ab initio” the Appellate Court has no jurisdiction to entertain and determine such appeal. Same is to be struck out. See Mosoba vs. Abubakar (2005) 6 NWLR Pt. 922 P.460; Odofin vs. Agu (1992) 3 NWLR pt. 229 P. 350; Ogidi vs. Egba (1999) 10 NWLR pt. 621 p. 42; Iorhule vs. Ikyomke (1998) 13 NWLR Pt.581 P. 293 and Ogbechi Vs. Onochie (No. 1) (1985) 12 NWLR Pt.23 P. 484.The preliminary objection to the competence of the appeal by the respondent is hereby sustained.
The law is trite, where a preliminary objection on the competence of an appeal is upheld or sustained, it is not necessary to go further to consider the arguments in support of the issues for determination filed by the parties in the appeal. Same is to be struck out, see Ekwerekwu vs. Egache (2010) 14 NWLR Pt.1213 P.194 @ 206; Onyemeh vs. Egbuchulam (1996) 5 NWLR Pt. 448 P.255; NEPA vs. Ango (2001) 15 NWLR pt. 737 p. 627 and N.N.B. Plc. vs. Denclag Ltd. (2005) 4 NWLR Pt. 916 P.549. In the result, having upheld the preliminary objection to the competence of the appeal, this court can not delve into the merit or otherwise of the appeal. This Court, and indeed all courts of law have no jurisdiction to hear and determine an incompetent suit or appeal as the case may be. The preliminary objection having been sustained, this Court has no jurisdiction to proceed further to hear and determine the appeal. The appeal of the appellant against the ruling of the trial court delivered on the 3rd of May, 2006, is a hereby struck out. The respondent is entitled to costs which I hereby assessed to be N30,000.00. Same is awarded to the respondent.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree with the Judgment just delivered by my Lord Bdliya, JCA. I have nothing to add.
Appearances
Ezekiel Ugochukwu EsquireFor Appellant
AND
M. A. Tsuwa EsquireFor Respondent
