MUFUTAU SALAMI & ORS v. ALHAJI USMAN ALABI
(2016)LCN/8366(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/IL/M.1/2015(R)
RATIO
APPEAL: WHEN CAN APPEAL LIE AS OF RIGHT FROM THE DECISION OF THE FEDERAL HIGH COURT OR A HIGH COURT TO THE APPEALLATE COURT
From the above provisions Section 241(1)(a) is clear to the effect that appeals shall lie as of right from the decisions of the Federal High Court or a High Court to this Court where the decision is final in any civil or criminal proceedings before these Courts sitting at first instance (underlined for emphasis). PER. CHIDI NWAOMA UWA, J.C.A.
COURT: LEAVE OF COURT; WHETHER THE LEAVE OF THE HIGH COURT IS REQUIRED IN THE APPLICATION FOR EXTENSION OF TIME TO APPEAL
The leave of the High Court from which the decision emanated from or this Court, is required to be sought and granted before consideration and/or grant of an extension of time within which to appeal or cross appeal, whatever the case may be. In the present case to cross appeal. See, OLADUNMI AKERELE v. JIMOH ALAPATA 1973 LPELR-330 (SC), (1973) ALL N.L.R. 615 and (1973) S.C. 107.
The decision sought to be appealed against emanated from the decision of the Upper Area Court, Ilorin on appeal to the High Court resulting in the appeal in which the applicant has brought an application for extension of time to appeal in prayer one (1) of the reliefs. Without the leave of the High Court or this Court the application is deficient and improper.
Secondly, for whatever it is worth, like flogging a dead horse, by the provisions of Section 241(1)(b) of the Constitution, where the ground of appeal involves questions of law alone, the appeal from the proceedings of the Federal High Court or a High Court to this Court is as of right but, where it is on grounds of mixed law and fact, the leave of the High Court or this Court is required. Further, Section 241 (1) of the 1999 Constitution provides as follows:
242 (1):
“Subject to the provisions of Section 241 of the Constitution an appeal shall lie from the 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.” PER. CHIDI NWAOMA UWA, J.C.A.
APPEAL: NATURE OF APPEAL; THE DETERMINING FACTOR OF THE NATURE OF THE APPEAL
The determining factors of the nature of the appeal are the proposed grounds of cross appeal. The proposed grounds of cross appeal would reveal the classification of the appeal whether the appeal involves questions of law, or of mixed law and fact or facts alone. The particulars would also be looked at to determine whether the leave of the lower Court or this Court would be required to pursue, in this case, the Cross Appeal. PER. CHIDI NWAOMA UWA, J.C.A.
APPEAL: GROUND OF LAW AND GROUND OF APPEAL; GROUND OF LAW DISTINGUISHED FROM GROUND OF FACT
There is a distinction between a ground of law from a ground of fact, it is not always easy to distinguish the two. What is required is still to examine thoroughly the grounds of appeal; in this case the proposed grounds of appeal, to see if the grounds of appeal reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved.
A ground of Appeal which complains of a misunderstanding by the lower Court of the law or misapplication of the law to facts already proved or admitted is a ground of law. But a ground of appeal which questions the evaluation of facts before the application of the law is a ground of mixed law and fact. A ground of appeal that a trial Court failed to consider the issue raised on the pleadings before it, is a complaint involving questions of law alone, also a complaint against wrongful admission of evidence is also a question of law. See, ALH. MUHAMMED ALIYU SHABA NDALITE & ORS v. HIS ROYAL HIGHNESS ETSU NUPE & ORS (2010) LPELR-4585(CA), NWADIKE & 2 ORS v. IBEKWE & 2 ORS (1987) 4 NWLR. PER. CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. MUFUTAU SALAMI
2. MR. KAMARU JIMOH
3. MR. JIMOH ELERO
4. MR. FASASI JIMOH
5. MR. NAJIMU TOMOLA
6. MR. MURITALA AKOSILE
7. MR. SULE IBRAHIM Appellant(s)
AND
ALHAJI USMAN ALABI Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling): In the application filed on 9th February, 2016, the learned Counsel to the Applicant J. S. Muhammad prayed for the following orders before this Court:
“1. AN ORDER extending the time within (sic) the Respondent/Applicant can Cross-Appeal against the judgment of the Kwara State High Court, Appellate Session, Ilorin Division in Suit No: KWS/3A/20l3 delivered by Honourable Justices A. O. Bamigbola, C.J. (As he then was), S. D. Kawu J. (As he then was) and M. A. Folayan J. on 24h day of September, 2014.
2. AN ORDER deeming the Notice of Cross-Appeal of the Respondent filed contemporaneously with this application as properly filed and served.
3. AN ORDER allowing the Respondent/applicant to rely on the existing Record of Appeal in the main Appeal to prosecute the Cross-Appeal.
AND for such further orders(s) as this Honourable Court may deem fit to make in the circumstances.”
The grounds for the Application were as follows:
“1. The Respondent/Applicant was the Appellant at the lower Court while the Appellants/Respondents were the respective Respondents.
?2. After the
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hearing of the Appeal, the lower Court gave judgment in part in favour of the Respondent/Applicant on the ground that he did not tender documents already appraised and pronounced upon by all courts including the Supreme Court.
3. The Appellant, dissatisfied with the judgment, appealed to this Honourable Court vide their Notice of Appeal filed with the leave of Court on 19/2/15.
4. The Respondent/Applicant since October, 2014 has been bedridden and was taken to his home town Osi, Kwara State consequent on which he was unable to brief his counsel on the appeal.
5. On Thursday, 3rd February, 2016, the Respondent/Applicant through his vendor, Yekeen Kolawole of Oluganna family came to our office and briefed us of this pending Appeal.
6. Upon the perusal of the judgment subject of this Appeal, the Respondent/Applicant’s Counsel found that there is the need for the Respondent/Applicant to Cross-Appeal so that all issues in this Appeal can be properly dealt with and ventilated hence, the Notice of Cross-Appeal contemporaneously filed with this application.
7. It is in the interest of justice to grant this Application as the
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Appellants/Respondents will not be prejudiced if same is granted.”
The application was supported by a six paragraph affidavit deposed to by one Comfort Stephen. The application was brought pursuant to Section 24 of the Court of Appeal Act, Laws of the Federation of Nigeria, 2014, Order 7 Rules 1, 2 and 10 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of the Court.
When the application was moved, the Learned Counsel to the applicant J. S. Muhammad, Esq. withdrew prayer three (3) in the motion paper, same was struck out.
The proposed Notice of Cross-Appeal (labeled Notice of Cross-Appeal) was referred to in paragraph 3(A) of the Affidavit in support of the application while the judgment is Exhibit ‘A’ referred to in paragraph 3 (B) of the same affidavit above. While relying on Section 241 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution), we were urged to exercise our discretion in favour of the applicant and grant the application.
?Dr. J. O. Olatoke (SAN) appearing with O. T. Mohammed and E. O. Edjeba (Miss) for the Appellants/Respondents opposed
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the application on points of law. It was submitted that the appeal is on mixed law and facts, pursuant to Section 241 (1) (a) of the Constitution, the application is not competent as the leave of the High Court or this Court ought to have first been sought and obtained.
In moving the application, the learned Counsel to the applicant relied on Section 241 (1) (b) of the Constitution.
The above Section provides as follows:
214 (1): (a) and (b):
“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;”
From the above provisions Section 241(1)(a) is clear to the effect that appeals shall lie as of right from the decisions of the Federal High Court or a High Court to this Court where the decision is final in any civil or criminal proceedings before these Courts sitting at first instance (underlined for
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emphasis). Exhibit ‘A’ referred to in paragraph 3 (B) of the affidavit in support of the application is evident that the decision sought to be appealed against in the proposed cross appeal in which extension of time is sought, no doubt, is a decision in a civil proceedings from the State High Court but, in its appellate jurisdiction. Therefore, the leave of the High Court from which the decision emanated from or this Court, is required to be sought and granted before consideration and/or grant of an extension of time within which to appeal or cross appeal, whatever the case may be. In the present case to cross appeal. See, OLADUNMI AKERELE v. JIMOH ALAPATA 1973 LPELR-330 (SC), (1973) ALL N.L.R. 615 and (1973) S.C. 107.
The decision sought to be appealed against emanated from the decision of the Upper Area Court, Ilorin on appeal to the High Court resulting in the appeal in which the applicant has brought an application for extension of time to appeal in prayer one (1) of the reliefs. Without the leave of the High Court or this Court the application is deficient and improper.
?Secondly, for whatever it is worth, like flogging a dead horse, by the
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provisions of Section 241(1)(b) of the Constitution, where the ground of appeal involves questions of law alone, the appeal from the proceedings of the Federal High Court or a High Court to this Court is as of right but, where it is on grounds of mixed law and fact, the leave of the High Court or this Court is required.
Further, Section 241 (1) of the 1999 Constitution provides as follows:
242 (1):
“Subject to the provisions of Section 241 of the Constitution an appeal shall lie from the 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.”
?The Constitution has clearly provided for situations where the leave of Court would be required for an appeal and where it is as of right, it should therefore be given its plain interpretation. In the present case, as stated above in this Ruling, this matter sought to be appealed against emanated from the decision of the Upper Area Court, Ilorin which went on Appeal to the High Court and this Court, from the decision of the High Court in its appellate jurisdiction and not sitting at first instance,
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so the leave of this Court or the High Court is required before an appeal can be properly lodged. In this case the applicant has sought for extension of time to cross appeal without the prerequisite leave to appeal, pursuant to Section 242 (1). There is nothing to show that such leave has been sought and granted. See, ALHAJI RUFAI A. SALAMI v. AMUSA OSENI & ORS (2001) LPELR-6972(CA); (2002) 14 NWLR (Pt. 788) 623, NAFIU RABIU v. KANO STATE (1980) 8-11 SC 150, (1981) 2 NCLR 293 ADISA v. OYINWOLA (2000) 10 NWLR (Pt. 674) 116 SC. AKANDE v. ALAGBE (2000) 15 NWLR (Pt. 690) 353, S. U. OJEMEN & 3 ORS. v. HIS HIGHNESS WILLIAM O. MOMODU II. THE OGIRRUA OF IRRUA & ORS (1983) 1 SC NLR AND MACKSON IKENI & ANOR v. CHIEF WILLIAM AKUMA EFAMO & ORS 2 ORS (1997) 4 NWLR (Pt. 499) PAGE 318 CA.
?The determining factors of the nature of the appeal are the proposed grounds of cross appeal. The proposed grounds of cross appeal would reveal the classification of the appeal whether the appeal involves questions of law, or of mixed law and fact or facts alone. The particulars would also be looked at to determine whether the leave of the lower Court or
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this Court would be required to pursue, in this case, the Cross Appeal.
There is a distinction between a ground of law from a ground of fact, it is not always easy to distinguish the two. What is required is still to examine thoroughly the grounds of appeal; in this case the proposed grounds of appeal, to see if the grounds of appeal reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved.
A ground of Appeal which complains of a misunderstanding by the lower Court of the law or misapplication of the law to facts already proved or admitted is a ground of law. But a ground of appeal which questions the evaluation of facts before the application of the law is a ground of mixed law and fact. A ground of appeal that a trial Court failed to consider the issue raised on the pleadings before it, is a complaint involving questions of law alone, also a complaint against wrongful admission of evidence is also a question of law. See, ALH. MUHAMMED ALIYU SHABA NDALITE & ORS v. HIS ROYAL HIGHNESS ETSU NUPE & ORS (2010) LPELR-4585(CA), NWADIKE & 2 ORS v. IBEKWE & 2 ORS (1987) 4 NWLR
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(Pt. 67), PAGE 718 and OGBECHI v. ONOCHIE (1986) 2 NWLR (Pt. 23) PAGE 484 at 490.
In the case of KHALIL v. YAR’ADUA (2004) ALL FWLR (Pt. 225) 111 at 138 in this Court, His Lordship Muhammad, JCA held thus:
“The combined effect of Sections 241 (1)(b) and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999, makes it mandatory on mixed law and fact, the prospective Appellant has to seek and obtain leave of the trial Court before he can file his notice and grounds of appeal. Failure to do so renders any notice or grounds of appeal on such matters incompetent and liable to be struck out.”
See, also MOHAMMED v. OLAWUNMI (1990) 2 NWLR (Pt. 133) 458 and MR. ATTIE SAMUEL WANINI-EMI v. MR. DELIGHT IGALI & ORS (2009) LPELR-5092 (CA).
?I have examined the proposed grounds of appeal with the particulars as a whole in Exhibit ‘B’ the proposed Notice of Cross Appeal, the grounds are clearly of mixed law and fact which would require the leave of the lower Court or this Court before an appeal could be filed. In this case the applicant has sought for an extension of time within which to cross appeal without first seeking and
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obtaining the leave of the lower Court or this Court. The application is clearly deficient and incompetent.
As a whole, the application being incompetent is hereby struck out.
Parties to bear their respective costs
MOHAMMED LADAN TSAMIYA, J.C.A.: I have read before now, the Ruling of my learned brother, CHIDI NWAOMA UWA, JCA just delivered with which I am in agreement. For the same reasons so clearly and comprehensively stated, I too find no merit in this Application. I accordingly dismiss it. I order that parties to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the pleasure of reading in draft the lead ruling of my learned brother, Chidi Nwaoma Uwa, J.C.A., and I agree entirely with the views expressed therein and the conclusion that the application is incompetent and liable to be struck out.
?There is no doubt that the ground of appeal questioning evaluation of facts before application of law is premised on mixed law and facts. In my considered opinion, an appeal on such questions of mixed law and facts can only be filed with the leave of this Court or the Supreme Court of Nigeria first
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applied for and obtained. This has not been done by the Applicant and the application is tantamount to a non-starter.
?For the foregoing and the more detailed reasons given in the lead ruling, the application is hereby struck out for incompetent. I also adopt the order on costs made in the ruling.
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Appearances
Dr. J. O. Olatoke, SAN with him, O. T. Mohammed and E. O. Edjeba (Miss)For Appellant
AND
J. S. MuhammadFor Respondent
