NICON INVESTMENT LTD & ORS v. AMCON (2022)

NICON INVESTMENT LTD & ORS v. AMCON

(2022)LCN/17208(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 14, 2022

CA/LAG/CV/218/2021(R)

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

1. NICON INVESTMENT LIMITED 2. GLOBAL FLEET OIL & GAS LIMITED 3. BARRISTER JIMOH IBRAHIM APPELANT(S)

And

ASSETS MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

FACTOR TO BE CONSIDERED BY THE COURT IN DECIDING WHETHER OR NOT TO GRANT AN APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT

The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts. In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein. A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts. PER BAYERO, J.C.A.

WHETHER OR NOT APPEALS INVOLVING GROUNDS OF MIXED LAW AND FACTS CAN BE MADE TO THE SUPREME COURT

Indeed, the Supreme Court in a good number of cases, decided after Shittu vs. P.A.N Limited (Supra) and the 1st, 2nd & 3rd Alterations Acts, 2010, has continually held the view that appeals involving grounds of mixed law and facts can be made to the Supreme Court provided leave of Court is sought and obtained. See: Nwagbara vs. Jadcom Ltd (2021) LPELR-55329 (SC); Eneh vs. NDIC & Ors. (2018) LPELR-44902(SC); Fasuyi & Ors. vs. PDP & Ors (2017) LPELR-43462(SC); Okwuagbala & Ors v. Ikwueme & Ors. (2010) LPELR-2538(SC).
In the case of Obayuwana & Ors. vs. Adun (2020) LPELR – 49377 (SC) the Apex Court held that:-
“The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No Appeal on questions of fact lies to this Court without such leave. In other words, where a question of fact has been brought before this Court without leave, the Court has no jurisdiction. Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – See Ukpong vs. Commissioner for Finance and Economic Development (supra), wherein Onnoghen, JSC (as he then was) explained:- “Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same”. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): The Motion on Notice filed on 13/12/2021 prays for an order granting leave to the applicants to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter; and an order granting leave to the Applicants to, within fourteen (14) days of the grant of leave to appeal, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal, Exhibit B attached hereto. The grounds for the application are:-
1. On the 10th day of December, 2021 this Honourable Court delivered a Ruling in this appeal.
2. Dissatisfied with parts of the decision contained in the Ruling, the Applicant is desirous of lodging an appeal against the decision in the said Ruling in terms of Exhibit B.
3. Some of the grounds of the appeal appear to be grounds of mixed law and facts and of facts simpliciter.
4. By the relevant law and the Rules of this Honourable Court and having regard to Ground 3 above, leave of this Honourable Court is required to file the proposed Notice of Appeal (Exhibit B) against the said decision of this Honorable Court. The motion is supported by an accompanying affidavit in support of four main Paragraphs and an affidavit of urgency also of four (4) main Paragraphs. Both affidavits were duly deposed to by one Tola Oni on behalf of the applicants with two documentary Exhibits A (a certified true copy of the said Judgment and Exhibit B (copy of the proposed notice of appeal).

The applicants’ Counsel contended in the course of moving the application that the applicants are seeking the leave of this Honourable Court to appeal against the Ruling of this Honourable Court delivered on the 10th of December, 2021. That it is not in doubt that the grant or refusal of applications such as the instant motion on notice is within the discretion of this Honourable Court – Ukachukwu vs. PDP (2014) 4 NWLR (Pt. 1396) 65, Dr. Alex Otti & Anor v. Dr. Samson Uchechukwu Ogah & Ors. (2017) 17 NWLR (Pt. 1563) 1.

That what is required of this Court in an application of this nature is to peruse the proposed notice of appeal to decipher whether the grounds therein are substantial- Samson Uchechukwu Ogah & Ors. (Supra). According to Counsel, the major grouse of the Applicant is that this Court proceeded to grant reliefs 1-3 of the Appellant/Respondent’s motion on notice dated 5th July 2021 and extended time within which the Appellant/Respondent may appeal against the order of the Federal High Court delivered on the 16th of February 2021. That this Court granted reliefs 1-3 on the ground that the alleged mistake of counsel is unacceptable and sufficient reason for the grant of an extension of time to appeal contrary to the settled position of the Supreme Court in the case of Elias vs. Eco bank Nigeria Ltd. (2019) 4 NWLR (Pt. 1663) 381 at 402-403.

That this on its own, demonstrates the substantiality of the grievance of the Applicant and the proposed appeal against the said decision. According to Counsel, some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts -Bat Nig. Ltd. & Anor vs. Gallaher Ltd & Ors. (2015) LPELR-41824 (CA) and NDIC vs. Sadam & Co. Ltd & Ors. (2019) LPELR-50966 (CA).

That a further review of the proposed appeal will reveal a good and substantial reason why the appeal ought to be heard.

In opposing the grant of the application, the Respondent filed a counter affidavit of five main paragraphs duly deposed to by Christopher Friday and a written address. According to Counsel the issue is whether the application of the Applicant is supported by law in terms of the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which removes the defunct sub-section (3) of Section 233 under which the Applicant has brought its application, and subsequently removes the jurisdiction of the Supreme Court to entertain an appeal based on facts and/or mixed law and facts. That Exhibit B attached to the Applicant’s application is essentially challenging the exercise of discretion of this Honourable Court in granting leave to the Appellants/Respondents to file their Notice of Appeal which has been held by numerous authorities that where manifold injustice would be occasioned to the Respondent, discretion of Court cannot be challenged.

According to Counsel, this Honourable Court lacks jurisdiction to grant the Applicant’s application on the basis that the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has removed the defunct Section 233 (3) which allows the Supreme Court to hear an appeal on the ground of facts and/or mixed law and facts. We submit that the Supreme Court, like any other Court is a creation of statute. By virtue of Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – that the express mention of a thing is to the exclusion of all other – Omatseye vs. Federal Republic of Nigeria (2017) LPELR- 42719; Ehuwa vs. O.S.I.E.C (2006) 10 NWLR Pt. 1012 at 544. That one of the conditions which must be fulfilled by the Applicant before an application for leave can be granted, is that, there is a prima facie good ground of appeal pending before the Court. Counsel further submitted that Exhibit B which is the proposed Notice of Appeal has not shown any prima facie good ground that can compel the exercise of discretion in favour of the Applicant – Brathwaite vs. Dalhatu (2016) 13 NWLR (Pt. 1528) 32 at 56 Paras. A-F.

That the only reason why the Applicant is seeking leave to appeal to the Supreme Court is because the Applicant is querying the exercise of the discretionary power of this Honourable Court in favour of the Respondent. According to Counsel, the attitude of Appellate Court to the exercise of discretion is that unless the exercise is manifestly unjust, arbitrary and reckless, the Appellate Court will not interfere. That the Applicant has not shown that the grant of the discretion of this Court is manifestly unjust and/or reckless in the light of the facts before the Court. He urged the Court to dismiss the application with substantial cost.

In the applicant’s reply on point of law, it was submitted that the power of the Supreme Court to entertain appeals is provided for in Section 233 (1) of the 1999 Constitution. That the above provision made no distinction between appeals involving question of facts or of law or of mixed law and facts. That the above provision bestows upon the Supreme Court of Nigeria a blanket authority to hear and determine any appeal that may arise from the Court of Appeal; and that it is therefore inconceivable to contend despite the clear provision of Section 233(1) of the 1999 Constitution that the jurisdiction of the Supreme Court is ousted for appeals involving questions of mixed law and fact. That at best, the interpretation would be that appeals on questions of law alone can be made to the Supreme Court without leave.

That the observation by the Supreme Court in the case of Shittu vs. PAN Limited (2008) 15 NWLR (Pt. 1642) 195 is at best an obiter and ought to be discountenanced by this Court. He urged the Court to allow the application.

DETERMINATION OF THE APPLICATION
The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts. In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein. A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts.

Ground one complains about the Honourable Court exercise of discretion in the Appellants/Respondents’ motion on notice dated 5th July 2021. Where a ground of appeal challenged the exercise of discretion by a Court, it is a ground of mixed law and facts – Chief of Air Staff & Ors vs. Flying Officer Edward & Ors (2019) LPELR-51173(SC); Emeakayi vs. COP (2004) 4 NWLR (Pt. 862) 159; Roper & Anor vs. Iman & Ors. (2016) LPELR-41571 (CA); Okeke & Ors. vs. Okeke & Ors. (2013) – LPELR-22565 (CA).

The mere fact that Section 233(2) makes mention of appeal as of right presupposes that there are certain instances where appeal may be made with leave of Court; regardless of the fact that Section 233(3) was deleted. The Appellants/Respondents placed heavy weather on the case of Shittu vs. P.A.N Limited (2018) 15 NWLR (Pt. 1642) 195. They contended that the Supreme Court in that case held that appeals involving questions of mixed law and facts ends at the Court of Appeal.

Indeed, the Supreme Court in a good number of cases, decided after Shittu vs. P.A.N Limited (Supra) and the 1st, 2nd & 3rd Alterations Acts, 2010, has continually held the view that appeals involving grounds of mixed law and facts can be made to the Supreme Court provided leave of Court is sought and obtained. See: Nwagbara vs. Jadcom Ltd (2021) LPELR-55329 (SC); Eneh vs. NDIC & Ors. (2018) LPELR-44902(SC); Fasuyi & Ors. vs. PDP & Ors (2017) LPELR-43462(SC); Okwuagbala & Ors v. Ikwueme & Ors. (2010) LPELR-2538(SC).
In the case of Obayuwana & Ors. vs. Adun (2020) LPELR – 49377 (SC) the Apex Court held that:-
“The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No Appeal on questions of fact lies to this Court without such leave. In other words, where a question of fact has been brought before this Court without leave, the Court has no jurisdiction. Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – See Ukpong vs. Commissioner for Finance and Economic Development (supra), wherein Onnoghen, JSC (as he then was) explained:- “Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same”.

The Respondents also argued that there are no arguable grounds in the proposed notice of appeal. Grounds 1, 3 & 4 question the striking out of the appeal as against the dismissal. Ground 2 challenges the striking out of the appeal in the face of Section 53(5) of the Asset Management Corporation of Nigeria Act. Clearly, these are not only arguable grounds but highly contentious ones that are deserving of the Supreme Court’s consideration.

The application is therefore meritorious and is hereby granted thus:-
1) Leave is hereby granted to the Applicant to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter.
2) Leave is hereby granted to the Applicant to within fourteen (14) days from today, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal as per Exhibit B (the proposed notice of appeal).

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the Ruling of my lord ABDULLAHI MAHMUD BAYERO, JCA and I agree with the reasoning and conclusions of my lord in the said Ruling.
I have nothing useful to add.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the lead Ruling prepared by my learned brother, Abdullahi Mahmud Bayero, JCA. I am in agreement with his reasoning and conclusion that the application is meritorious and deserves to be granted. I equally grant the application and abide by the orders made in the lead Ruling.