UBA PLC v. JOHN MICHAEL CO. & (NIG.) LTD (2022)

UBA PLC v. JOHN MICHAEL CO. & (NIG.) LTD

(2022)LCN/5020(SC)

In The Supreme Court

On Friday, April 08, 2022

SC.544/2015

Before Our Lordships:

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

JOHN MICHAEL COMPANY & NIGERIA LIMITED RESPONDENT(S)

RATIO

MIXED LAW AND FACTS

Issue of mixed law and facts, facts and law alone is very delicate, mystifying and intricate, it entails complex mixture in most cases making it difficult to navigate through the muddle and untie. The Court examines grounds upon which the appeal is erected in order to find basis of concreting its decision on where the grounds of appeal stand, that is whether they are grounds of law, law and facts, or law and law alone. The Court must do a community reading of the grounds of appeal and their particulars of error, so doing will unveil the status of the ground of appeal. Some Appellants craft their grounds of appeal and assign to them inappropriate nomenclature “grounds of law” just to circumvent the requirements of Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the mandatory requirement for leave to appeal where the grounds of appeal are of mixed law and facts.
This Court in OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) at pg.484 and several other endless decisions of this Court set out the principles to apply in identifying where a particular ground of appeal resides. TIJJANI ABUBAKAR, J.S.C.

LEAVE TO APPEAL

The law is by now, quite well 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. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal Lagos Division, delivered on the 23rd day of October, 2014, wherein the Appellant’s appeal against the judgment of the trial Court was unanimously dismissed by the lower Court.

The claim of the Respondent in this appeal as Plaintiff at the trial Court as per the writ of summons taken out on the 26th day of April 2000 reads as follows:
1. A declaration that the negligent payment by the defendant of money due to the plaintiff (in the sum of N7,339,217.25) into a private account instead of the plaintiff’s account is wrongful and unlawful.
2. An order for the payment of the defendant to the plaintiff of the sum of N1,738,171.28 representing interest at the rate of 21% on the said sum of N7,339,217.25 per annum from 12/5/98 to 28/6/99 being the period during which the defendant wrongly deprived the plaintiff of its money.
3. Further interest on the said sum of N1,738,171.28 at the rate of 21% per annum from 29/6/99 until the sum is fully liquidated.

The facts grounding this appeal are that the Appellant as defendant filed a statement of defence on 27th July, 2000. In 2004, when the Lagos State High Court (Civil Procedure) Rules came into force, the parties were required to follow the new rules. The Respondent therefore refiled its claims and complied with the new rules. Thereafter, the front-loaded processes were served on the Appellant, as defendant, in February, 2005. The Appellant did not file its accompanying documents in relation to the processes filed and served on it. At the pre-trial conference on the 13th day of April, 2006, the Court was informed that the defendant/applicant was served and was absent in Court. The trial Court was satisfied that the defendant/Appellant had been duly served, judgment was accordingly entered in favour of the Claimant/Respondent.

The Claimant/Respondent thereafter levied execution of the default judgment on the 26th day of July, 2006. The Appellant on the 31st day of July, 2006 filed a motion on notice and prayed, for a stay of further execution of the default judgment, an order setting aside the default judgment and an order for the release of the Appellant’s vehicles held in execution of the judgment. This application was supported by an affidavit and written address, further affidavit was also filed on the 8th day of August, 2010.

The Respondent filed counter-affidavit and written address in response. When the motion was argued, the learned trial judge delivered ruling dismissing the application of the Appellant.

The Appellant became aggrieved and lodged an appeal at the lower Court, the Court of Appeal Lagos Division. The lower Court in its judgment delivered on the 23rd day of October, 2014, dismissed the Appellant’s appeal and affirmed the decision of the trial Court. The decision of the lower Court therefore nettled the Appellant who further appealed to this Court on the 24th day of February, 2015 via notice of appeal containing two grounds of appeal.

Appellant’s brief of argument was filed on the 19th day of October, 2015 by learned Counsel Johnson Odionu Esq. In the Appellant’s brief of argument, learned Counsel nominated and argued two issues for determination, the issues are reproduced as follows:
a) “Whether the appellant was served with the necessary pre-trial conference forms 17 and 18 together with the hearing notice for pre-trial conference before the grant of the default judgment upheld by the Court of appeal. This relates to ground one of the Notice of Appeal.
b) Whether the Court of appeal was right to have held that Exhibit A with attached processes speaks for itself and does not necessitate the calling of oral evidence to resolve conflicting affidavits of the parties.”

The Respondent through learned Counsel A.M Makinde Esq., filed the Respondents brief of argument on the 15th day of February, 2015, learned Counsel also filed notice of preliminary objection on the 15th day of February, 2021 and argument in support of the said preliminary objection on the 17th day of March, 2021.

In the Respondent’s brief of argument, learned Counsel crafted two issues for determination, they are also reproduced as follows:
1. “Whether the appellant has made out a case of exceptional circumstances to warrant or justify the review of the concurrent findings of fact made by the Courts below on the question of service of processes on the appellant by this Court.
2. Whether the Court below was right when it held that the documentary evidence available to the Court has obviated calling oral evidence to resolve any conflict in the affidavit in support of the motion dated 31/7/2006 and the counter affidavit and further affidavit of the appellant.”

As I stated earlier, the learned Counsel, for the Respondent filed Notice of preliminary, I must state that the Appellant’s Counsel filed no response to the preliminary objection. In line with the settled position of the law, the Court has a duty to hear and determine the Preliminary Objection first before proceeding to consider and determine the substantive appeal if so doing turns out to be necessary. I will therefore in obedience to the dictates of the law, proceed to consider and determine the Respondent’s preliminary objection first.

THE PRELIMINARY OBJECTION
The notice of preliminary objection was brought pursuant to Order 2 Rule 9 of the Supreme Court Rules, 1999 and Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and the inherent jurisdiction of this Court. Learned Counsel for the Respondent said the appeal is incompetent, and this Court lacks jurisdiction to hear and determine the appeal since leave of Court was not sought for and obtained before commencing the appeal. The Respondent’s grounds of objection as set out on the face of the Notice of preliminary objection are:
1. The grounds of appeal are grounds of mixed law and facts.
2. Non-compliance of the Appellant with Section 233 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria as amended to obtain leave of Court.
3. The appeal is incompetent.
4. The Court lacks jurisdiction to entertain the appeal.

Arguing the objection, learned Counsel for the Respondent said the sole issue to resolve in the determination of the objection is “whether, the Appellant’s two grounds of appeal are grounds of mixed law and facts for which the Appellant ought to have sought for and obtain an order for leave to appeal, the grounds of appeal in the notice of appeal not being grounds of law in compliance with Section 233 (2) and (3) 1999 Constitution of the Federal Republic of Nigeria as amended”.

Learned Counsel referred to the Appellants Notice of Appeal deemed as properly filed and served on the 15th day of September, 2021 and submitted that the grounds of appeal are of mixed law and facts and cannot therefore be determined without the Appellant seeking for and obtaining leave of Court to appeal against the judgment. Counsel contended that the inability of the Appellant to seek for and obtain leave to appeal offends the provisions of Section 233 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Learned counsel relied on the decision in CHROME AIR V. FIDELITY BANK (2017) LPELR 43470 SC to argue that where the grounds of appeal question the evaluation of evidence before the application of the law, it is a ground of mixed law and facts, counsel relied on the decisions in MIN. PET. RESOURCES V. EXPO SHOPPING LINE (2010) LPELR-3189 SC, OJEMEN V. MOMODU (1983) S.C 173 and YARO V. AREWA CONST. (2007) 6 SC Pt. 2 pg. 149 to submit that it is trite that labelling a ground of appeal an error in law is insufficient to cloak it as such. The grounds and particulars according to learned counsel must be construed together to determine whether it is a ground of law or a ground of mixed law and facts relying on STATE V. OMOYELE (2016) LPELR- 40842 (SC).

Learned counsel said ground of appeal number one at pages 147-148 of the records of appeal questions the evaluation of the affidavit of service of the hearing on the Appellant, that being a ground of mixed law and facts, the Appellant requires leave of Court to have valid and competent appeal. Counsel relied on the decisions in FASUYI V. PDP (2017) LPELR-43462 (SC), DAIRO V. UBN (2007) 16 NWLR (Pt. 1059) Pg.99.

Learned Counsel also referred to ground of appeal number two at page 149 of the records of appeal to contend that the complaint of the Appellant also relates to evaluation of facts relating to service, Counsel said the ground is of mixed law and facts and Appellant requires leave of Court before the appeal becomes competent. Learned Counsel said where an appellant fails to obtain leave of Court to file an appeal on grounds of mixed law and facts, the appeal will be incompetent and therefore liable to be struck out, he relied on the decision in ABRAHAM V. OLORUNFUNMI (1991) 1 NWLR (Pt. 165) Pg. 53. Counsel further submitted that even though a party has the right to challenge any decision of Court by way of appeal, the same party must comply with all necessary conditions precedent to activating the jurisdiction of the Court, he cited. See UKPONG V. COMM FOR FINANCE (2006) LPELR-3349 SC, IFEAJUNA V. IFEAJUNA (1999) 1 NWLR (Pt. 587) Pg. 492.

Learned counsel finally submitted that the Appellant having failed to seek for and obtain leave of Court in this appeal in compliance with the provisions of the Constitution cannot invoke the powers of this Court to adjudicate in the appeal. Counsel urged that the preliminary objection be sustained.

RESOLUTION
Before I proceed to discuss the preliminary objection, let me first reproduce the Appellant’s grounds of appeal and the particulars as filed by the Appellant, so doing will show whether the grounds are grounds of law or of mixed law and facts. Appellant’s two grounds of appeal and their respective particulars as set out in pages 147 to 149 of the records of appeal read as follows:
“Ground One
The learned Justices of the Court of Appeal erred in law in refusing to set aside the default judgment entered against the appellant on 13th April, 2006 by Lagos High Court for failure to participate in pre-trial conference when they came to the conclusion that all the necessary forms 17 & 18 together with the pre-trial conference hearing notice were properly served and acknowledged the appellant’s counsel.
Particulars of Error
a) The necessary form 17 or hearing notice for the pre-trial conference was not served on the appellant’s then counsel – Oyagbola chambers as there is no where in the copy of the acknowledged of service marked as Exhibit J1 attached to affidavit of service by the respondent where the appellant’s then counsel acknowledged the receipt of the necessary form 17 or hearing notice.
b) The acknowledgement of service marked Exhibit J1 attached to affidavit of service by the respondent is the acknowledgment of receipt of document or letter dated 28/02/2006 which the respondent addressed to the Chief Registrar simpliciter.
c) the endorsement thus “original copies received by me” contained in the acknowledgment of service marked Exhibit J1 attached to the affidavit of service by the respondent did not indicate the specific or particular document received and this ought to have created some doubts in the mind of the trial lower Court.
d) There is no endorsement on forms 17 and 18 to indicate that the appellant actually received the documents as it is the case under a normal circumstance.
Ground Two
The learned justices of the Court of Appeal erred in law in holding that the document Exhibit A which is proof of service by the respondent with all the attachment speaks for itself and as such the issue of calling oral evidence to resolve the conflict in the affidavits filed by the parties is uncalled for.
Particulars of Error
a) The respondent exhibited before the lower Court Exhibit A which is an affidavit of service to the effect that the appellant former counsel the law firm of Oyagbolu Chamber received the said processes.
b) The appellant by a further affidavit exhibited a letter from the said law firm Oyagbola Chambers that they were never served with any such notice or otherwise notified of a pre-trial conference date.
c) The affidavit Exhibit A filed by the respondent and the further affidavit filed by the appellant are in conflict with each other which can only be resolved by oral testimony.”

I carefully read the grounds and particulars of error in grounds 1 and 2 contained in the Notice of Appeal, they deal with issues of law and facts, ground one relates to the service of hearing notice for pre-trial conference. Ground two relates to proof of service. It is clear from reading grounds 1 and 2 and their respective particulars of error that they are grounds of mixed law and facts. A ground of appeal on facts could be cleverly crafted as a ground of law, so doing by the Appellant does not necessarily make it a ground of law, while a ground of law could be designed as a ground of facts, so doing by the Appellant does not also make it a ground of facts.

Upon conducting surgical and meticulous analysis of the two grounds, it is apparent that the two grounds are of mixed law and facts the Appellant cannot therefore engage in gymnastics and maneuvers to conceal the identity of the two grounds to evade the requirement for leave to appeal, the grounds as they remain deficient, incompetent and therefore invalid and remain incapable of activating the jurisdiction of this Court. The Appellant cannot make his way to this Court and file an appeal on grounds of mixed law and facts without obtaining prior leave of Court as required by Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The grounds of appeal as filed are out and out deficient and incompetent and therefore liable to be struck out. Let me finally have recourse to the settled position of the law by citing our decision in Al MAJIR V. JALBAIT VENTURES NIG. LTD & ANOR. (2021) 1- 2 S.C (pt. 2) where this Court held as follows and I quote:
“Where leave first sought and obtained is the sine qua non, under Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria, as amended, for a valid or competent appeal, unless the leave was first sought and granted to the appellant to appeal, any appeal lodged or filed in defiance of the said mandatory provisions will be void and a nullity ab initio…”
Again in MAIGORO V. GARBA (1999) 7 S.C (Pt.3), this Court per my law lord and brother EJIWUNMI, JSC emphasized on the consequence of default in obtaining prior leave of Court when he emphatically and in clear and unambiguous words said as follows:
“it is therefore clear that the Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and facts, unless of course, leave has been obtained. This point has been emphasized in a number of recent decisions. It is enough to refer only to the following; Oluwole V. Lagos Development (1983) 5 S.C 1 and J.B Ogbechie & Ors V. Gabriel Onochie & Ors (No 1) (1986) 3 S.C (Reprint 32)”

Having said this much therefore I am bound to hold that, Respondent’s preliminary objection is richly meritorious and deserves to he and is hereby sustained.

Appellant’s grounds of appeal are patently deficient and incompetent, they are accordingly struck out. The appeal is therefore struck out.

Parties shall bear their respective costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The law is by now, quite well 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 233(2) of the 1999 Constitution, as amended, an appeal to this Court may only be filed as of right from decisions of the Court of Appeal, where the grounds are of law alone (sub-paragraph) 2(a) or in any of the circumstances set out in Sub-Section (2) (b) – (f). Any ground of appeal that does not fall within those parameters, requires the prior leave of this Court or the Court below. This is the requirement of Section 233(3).

My learned brother, Tijjani Abubakar, JSC has carefully scrutinized the grounds of appeal and their particulars in the lead judgment. I agree with him that the two grounds in the Notice of Appeal filed on 24/2/2015 at pages 147-148 of the record together with their particulars are grounds of mixed law and fact, filed without leave.

The said notice of appeal is therefore incompetent and incapable of sustaining the appeal before this Court.
The appeal is accordingly struck out.
I abide by the order as to costs.

JOHN INYANG OKORO, J.S.C.: My learned brother, Tijjani Abubakar, JSC accorded me the privilege of reading in draft the lead judgment just delivered and I totally agree with his reasons and conclusion that the appeal is incompetent.

The law is well settled that where leave is a precondition before an appellant can raise grounds containing mixed law and fact in his notice of appeal, such precondition must be satisfied otherwise that ground of appeal will be incompetent and liable to being struck out. See Abubakar Vs. Dankwambo (2015) 18 NWLR (Pt.1491) P.213.

Indeed, this Court has in a plethora of decided cases emphasized that grounds of law alone are appealable without leave. However, if the notice of appeal contains grounds of fact mixed law and fact, the appellant must obtain leave of Court. See Obatoyinbo Vs. Oshatoba (1996) 55 SCNJ 1 at 16; (1996) 5 NWLR (Pt.450) 531, Senator Hosea Ehinlanwo vs. Chief Olusola Oke (2008)16 NWLR (Pt.1113) 357.

This Court has also in several authorities laid down guiding principles for determining grounds of law, mixed law and facts and grounds of facts alone. In the case of Ogbechie Vs. Onochie (1986)2 NWLR (Pt.23)484, his Lordship Esho, JSC (of blessed memory) gave an insight on how to determine grounds of mixed law and fact as follows:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law to the facts already proved or admitted in which case, it would be question of law or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact… ”

In the instant case, a calm reading of the Appellant’s grounds 1 and 2 already reproduced in the leading judgment would show clearly that they are grounds of mixed law and fact for which leave of Court is a requisite pre-condition before they could be competently raised. Having failed to obtain leave before raising those grounds, the grounds are incompetent and accordingly struck out.

To this end, I also find merit in the preliminary objection raised by the Respondent challenging the competence of the appeal. It is hereby sustained. The two grounds in the notice of appeal having been struck out, there is nothing more to sustain the appeal. It is hereby struck out. I also make no order as to cost.
Appeal struck cut.

ABDU ABOKI, J.S.C.: I had the privilege of reading in draft, the judgment written by my learned brother, TIJJANI ABUBAKAR, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.

The appeal as shown in the lead judgment is one the law requires the Appellant to seek leave of either the Court below or this Court before filing. The Record of Appeal clearly shows that Appellant did not obtain the required leave before its appeal. This failure goes to the root of the appeal and robs this Court of the jurisdiction to hear and determine the appeal.
See Section 233(2) and (3) of the CFRN 1999, as amended.
In Fasuyi & Ors v. PDP & Ors (2017) LPELR 43462 (SC), this Court stated thus:
“It is a settled matter of law that an Appellant seeking to appeal against a decision of the Court of Appeal does so as of right only where the ground of appeal involves questions of law alone and when it involves a question of facts or mixed law and facts, the need for leave of Court is of the essence… ”
The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground. Thus, an appeal to this Court cannot be entertained once the grounds are of facts or mixed law and fact and leave has not been asked for or obtained.

It is on account of this and the fuller reasons of in the lead judgment prepared by my learned brother, TIJJANI ABUBAKAR, JSC, that I also find this appeal to be incompetent and it is hereby struck out.

I abide by the order as to cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I concur with the reasoning postulated in the judgment just delivered by my learned brother, the Hon. Justice Tijjani Abubakar, JSC, to the conclusive that the instant appeal is incompetent.

Hence, having adopted the said reasoning and conclusion as mine, I too hereby dismiss the appeal for lacking in competence.

Appearances:

Johnson Odianu, Esq. For Appellant(s)

A.M Makinde, SAN, with him, O.S Ishola For Respondent(s)