UNILORIN & ORS v. JAMES
(2022)LCN/16585(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/IL/115/2019(R)
Before Our Lordships
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. UNIVERSITY OF ILORIN 2. THE COUNCIL, UNIVERSITY OF ILORIN 3. THE SENATE, UNIVERSITY OF ILORIN 4. THE VICE-CHANCELLOR, UNIVERSITY OF ILORIN 5. THE REGISTRAR, UNIVERSITY OF ILORIN 6. PROF. N.Y.S. IJAYA, THE CHAIRMAN, STUDENT DISPLINARY COMMITTEE, UNIVERSITY OF ILORIN APPELANT(S)
And
BAMIDELE SUNDAY JAMES RESPONDENT(S)
RATIO
THE DIFFERENCE BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACTS
The Supreme Court in its decisions accepts that there is a thin line between a ground of law and a ground of mixed law and facts. Where the Ground of Appeal complains that the trial or Appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the Ground of Appeal questions the evaluation of evidence before the Application of the law, it is a ground of mixed law and fact. Generally, there is no difficulty in determining whether a Ground of Appeal is a question of fact. See ODUNUKWE VS. OFOMATA (2010) 18 NWLR PT. 125, PG. 404; OGBECHIE VS. ONOCHIE (1986) 2 NWLR PT. 23, PG. 484; ANUKAM VS. ANUKAM (2008) 5 NWLR PT. 1081, PG. 455. PER NDUKWE-ANYANWU, J.C.A.
THE POSITION OF LAW WHERE A PARTY DESIRES AN EXTENSION OF TIME IN HIS FAVOR
An Applicant who desires an extension of time in his favour in an Application for extension of time amongst others must give good reasons and place sufficient materials before the Court in order to earn the discretion of the Court in its favour. See ADEGBOLA VS. IDOWU (2017) LPELR 42105.
“For a Court to grant these discretionary prayers, the Applicants/Appellants must establish good, substantial or exceptional reasons or circumstances explaining satisfactorily the delay in filing his Notice of Appeal as would justify the grant of such any extension of time and other prayers applied for” Per ABBA-AJI, JSC in FBN VS. AGBARA(2020) LPELR 50632. PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgement): The Appellants/Applicant by a Motion on Notice filed on 25th October 2021 prays the Court for the following Orders:
1. AN ORDER of this Honourable Court extending the time within which to seek leave to appeal against the judgment of the Federal High Court sitting in Ilorin delivered on 16th January, 2018 in Suit No: FHC/IL/CS/39/2018.
2. Leave of this Honourable Court to Appeal against the judgment of Federal High Court sitting in Ilorin delivered on 16th January, 2018 in Suit No: FHC/IL/CS/39/2018.
3. AN ORDER of the Honourable Court extending the time within which Appellants/Applicants shall file their Notice and Grounds of Appeal against the ruling of Federal High Court sitting in Ilorin delivered on 16th January, 2018 in Suit No: FHC/IL/CS/39/2018.
4. LEAVE AND ORDER of the Honourable Court to rely on the Record of Proceedings in Suit No: FHC/IL/CS/39/2018 already transmitted to this Honourable Court and used in Appeal No: CA/IL/115/2019.
5. AND for such further and other orders as this Honourable Court may deem fit to make in the circumstance of this case. There are seven (7) Grounds for the Application. In support is a 14 paragraphs Affidavit deposed to by one Ayo Oluwa Daniel Oladunjoye. Also, in support, are three (3) Exhibits, A, B and C.
The Applicants filed a Further Affidavit in support of 15 paragraphs.
By an Order of this Court, the parties were ordered to file a 2 page Written Address in support of their positions. The Appellants/Applicants filed their 2 page written address on 14th December, 2021 and a Reply on 29th December, 2021. Counsel relied on all the paragraphs of the two (2) Affidavits. Counsel adopted his Written Address and Reply in urging the Court to grant the Orders as prayed.
The Respondent filed five (5) paragraphs Counter-Affidavit on the 1st November, 2021. In support of his opposition, a Written Address was also filed on 21st December, 2021. Counsel adopted his Written Address in support of his opposition and urged the Court to refuse this Application.
The Appellants/Applicants in their Written Address donated a sole Issue for determination as:
“Whether the discretionary of this Honourable Court ought to be exercised in favour of the Appellant/Applicant considering the facts and circumstances of this appeal”
The learned Counsel for the Appellants/Applicants submitted that the Order for an extension of time within which to appeal and leave to appeal falls within the discretionary powers of this Court. Also, leave to appeal also falls within that discretionary powers of the Court provided in S.25 of the Court of Appeal Act.
This Motion is to regularize the Appellants/Applicants’ Notice of Appeal dated 31st January, 2018 which was filed one day out of time. Counsel also argued that issues of law do not require any leave to appeal against interlocutory rulings. The reason for the delay is as set out in the Affidavit. It was the inadvertence of Counsel and not that of the Litigants. See LONG JOHN VS. BLAKK (1998) 6 NWLR PT. 555, PG. 524.
Counsel also argued that the Appellants/Applicants can only seek for leave to appeal in this Court as the appeal in this case has been entered in this Court. See NWDM LIMITED VS. UFT EWGR LIMITED (2011) NWLR PT. 1249, PG. 308.
Counsel urged the Court to grant his prayers in the interest of justice.
The Respondent’s Counsel submitted that the trinity prayers in the Motion on Notice presupposes that the Appellants/Applicants require leave of Court to file the Appellant’s Notice and Grounds of Appeal under S. 242(1) of the 1999 Constitution. See NIWA VS. SPDCN LIMITED (2020) 16 NWLR PT. 1749, PG. 160, where the Supreme Court held as follows:
“A party seeking to appeal against an interlocutory decision which requires leave is required to file a notice of his application for leave to appeal. At that stage, he is not required to file a notice of appeal. At best, he can exhibit is proposed notice of appeal to the affidavit in support of his application for leave to appeal. An application for leave to appeal must first be sought and obtained before filing a notice of appeal”.
Obtaining the leave of Court is a condition precedent before a Notice can be filed. Failure to seek and obtain the leave of Court before filing a Notice is a fundamental defect that cannot be regularized.
Counsel urged the Court to refuse this Application.
RESOLUTION:
Both parties agreed that the appeal sought to be initiated, is an Interlocutory Appeal. The Appellants/Applicants had filed a Notice of Appeal on 5th August, 2019. The Appellants/Applicants agreed that the Notice was out of time. A person wishing to appeal against an Interlocutory Ruling must file his Notice within fourteen (14) days.
The decision sought to be appealed on is an Interlocutory appeal which is out of time. It requires leave of the Court under S.242 (1) of the 1999 Constitution. See NWOSU VS. OFFOR (1997) LPELR 2130.
The right of appeal is determined by two factors – the nature of the appeal and the party exercising the right. Where the appeal falls within S.241 (1) of the 1999 Constitution, an appeal lies as of right. Where the appeal does not fall within S.241 (1) of the 1999 Constitution, S.242 (1) applies.
It must be stated quickly that where the Ground of Appeal in an Interlocutory Ruling is on points of law, the party does not require leave to appeal. The nature of Grounds of Appeal determines whether leave is required or not.
The Supreme Court in its decisions accepts that there is a thin line between a ground of law and a ground of mixed law and facts. Where the Ground of Appeal complains that the trial or Appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the Ground of Appeal questions the evaluation of evidence before the Application of the law, it is a ground of mixed law and fact. Generally, there is no difficulty in determining whether a Ground of Appeal is a question of fact. See ODUNUKWE VS. OFOMATA (2010) 18 NWLR PT. 125, PG. 404; OGBECHIE VS. ONOCHIE (1986) 2 NWLR PT. 23, PG. 484; ANUKAM VS. ANUKAM (2008) 5 NWLR PT. 1081, PG. 455.
I have taken a look at the Notice of Appeal filed on 5th August, 2019 of two Grounds. The Grounds are questioning the trial Judge’s decision in refusing to admit the Exhibit sought to be tendered. I have looked at the two (2) Grounds of Appeal and believe they are grounds of law requiring no leave to appeal against that ruling.
Be that as it may, the Appellants/Applicants filed their Notice of Appeal believing that they are both grounds of law. The only problem with the Notice of Appeal was that it was out of time. To remedy this anomaly, the Appellants/Applicants then filed this Motion seeking the Reliefs already recapped above. To fulfil all righteousness, the Appellants/Applicants prayed for the trinity prayers. The Appellants/Applicants to make assurance doubly sure, the Appellants/Applicant also applied for leave as well in case the Court holds that their Grounds of Appeal is of mixed law and fact.
In an Application like this, the Appellants/Applicants are praying for the Court to use its discretionary powers. In an Application of this nature, the Appellants/Applicants are urging the Court to exercise its discretionary powers to grant the trinity prayers. These discretionary powers have been bestowed on the Court. The Court however, in the exercise of these powers, ought to exercise these powers judiciously and judicially. See CUSTOMARY COURT OF APPEAL, BENUE STATE VS. ABURA TSEGBA AND ORS. (2010) LPELR 4009.
An Applicant who desires an extension of time in his favour in an Application for extension of time amongst others must give good reasons and place sufficient materials before the Court in order to earn the discretion of the Court in its favour. See ADEGBOLA VS. IDOWU (2017) LPELR 42105.
“For a Court to grant these discretionary prayers, the Applicants/Appellants must establish good, substantial or exceptional reasons or circumstances explaining satisfactorily the delay in filing his Notice of Appeal as would justify the grant of such any extension of time and other prayers applied for” Per ABBA-AJI, JSC in FBN VS. AGBARA (2020) LPELR 50632.
The Appellants/Applicants in this case filed their Notice of Appeal but it was out of time by one day as they discovered when the Notice of Preliminary Objection was served on them.
Inadvertence on the part of the Counsel is what has played out in this case. Being out of time by one day must have been an error in calculation which would not be visited on the Appellants.
To this end, I am minded to grant the prayers of the Appellants/Applicants.
The Court hereby, grants the following Orders today:
(1) Extension of time to seek leave to appeal against the ruling of the Federal High Court sitting in Ilorin, delivered on the 16th January, 2018 in Suit No. FHC/IL/CS/39/2018.
(2) Leave is hereby granted the Appellants/Applicants to appeal against the ruling of the Federal High Court sitting in Ilorin, delivered on 16th January, 2018 in Suit No. FHC/IL/CS/39/2018.
(3) The Court hereby, grants the Appellants/Applicants fourteen (14) days within which to file and serve their Notice and Grounds of Appeal against the ruling of the Federal High Court sitting in Ilorin, delivered on 16th January, 2018 in Suit No. FHC/IL/CS/39/2018.
(4) The Court hereby, grants the Appellants/Applicants an Order to rely on the Record of Appeal already compiled, transmitted and entered in this Court in the hearing and determination of this appeal.
No Order as to Costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: Based on the facts placed at the disposal of this Court in respect of this application, I am fully satisfied that the discretion to grant this application has been judicially and judiciously exercised. I grant the application upon the terms stated by my learned brother.
KENNETH IKECHUKWU AMADI, J.C.A.: I have read the draft ruling just delivered by my learned brother UZO I. NDUKWE-ANYANWU, JCA. I agree with the reasons proffered that this motion has merit. It is hereby granted.
Appearances:
S.O. BABAKEBE, ESQ. For Appellant(s)
A. ISAU, ESQ. For Respondent(s)
