Case Brief:
- Grounds of Appeal – How Ground of law, facts or mixed law and facts is determined as such.
- Ground of appeal – Effect of failure to obtain requisite leave
- Grounds of law and grounds of fact or mixed law and fact – How distinguished and principles guiding how to differentiate
- Leave to appeal under Section 233(3) of the 1999 Constitution – Nature of
- Section 233(3) of the 1999 Constitution
Case Facts
The Appellants, who were Plaintiffs, filed an action against the Respondent at the Edo State High Court, wherein they claimed:
a. A DECLARATION that the 1st Plaintiff is the beneficial owner under Bini Native Law and Custom of all that property situate and lying at No. 16, Old Eguanogbe Street, Benin City having inherited same from his late father late Pa. Samson Ewansiha Obayuwana, who died testate vide his WILL dated 14/5/2002 and as such, 1st Plaintiff is the one entitled to Statutory Right of Occupancy in respect of that property.
b. An Order that the Defendant shall pay the sum of N22,000,000.00 (Twenty-Two Million Naira) as special and general damages for the illegal destruction and occupation of the 1st Plaintiff's property as follows:
SPECIAL DAMAGES
i. The open market property in dispute is N12,000,000.00 (Twelve Million Naira) as per the valuation Report.
ii. Rent at the rate of N4,000.00 (Four Thousand Naira) per month from 10/4/2006, when the property of the 1st Plaintiff was destroyed by the Defendant until the determination of the case and until payment.
GENERAL DAMAGES
i. N10,000.000.00 (Ten Million Naira) for shock, inconvenience, emotional stress, and sentimental attachment to ancestral home of the 1st Plaintiff and loss of use of the said ancestral home and shrine.
ii. An order of possession of all that piece or parcel of land as shown in the litigation survey plan filed herewith.
iii. An order of perpetual injunction restraining the Defendant, whether by himself, his servants, agents, privies and or any person claiming through or under him or whosoever from entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation of the 1st plaintiffs right or interest
At the trial Court, the Appellants called five witnesses while two witnesses testified for the Respondent. The learned trial Judge, Okungbowa, J., delivered his Judgment on 28/9/2019, wherein he found that the Respondent has "not proved a better title to the land in dispute".
He concluded as follows in the Judgment:
Since the value of the house is ascertainable and the loss of use is also ascertainable, it would not be appropriate to award general damages. On the whole, the plaintiffs are entitled to Judgment and Judgment is accordingly entered against the Defendants as follows;
1. The 1st plaintiff is the beneficial owner of the property in dispute by virtue of the WILL of late Samson Ewansiha Obayuwana of which the 2nd and 3rd Plaintiffs are the executrix and executor.
2. The Defendant shall pay to the Plaintiffs the sum of N12,000,000.00 (Twelve Million Naira) being the value of the property in dispute which was illegally destroyed by the Defendant.
3. The Defendant shall pay to the Plaintiffs the sum of N4,000.00 per month from April 2006, until the Judgment debt is liquidated.
4. The Defendant shall give up possession of the land in dispute more particularly shown in the Plaintiffs' Litigation Survey plan.
5. The Defendant, whether by himself, his agent privies, assigns, and any person claiming through him are hereby restrained perpetually from further trespassing on the land in dispute or any part thereof.
6. The Defendant shall pay cost of N10,000.00 the Plaintiffs.
Dissatisfied, the Respondent appealed to the Court of Appeal, and in its Judgment delivered on 2/7/2015, that Court held that:
The Records of the Court below show that on the penultimate date when PW5 gave evidence, his qualification was not elicited by the Plaintiff and thereby not challenged by the Respondent. The law is that in holding out a witness as an expert witness, he must first of all be led as to his qualification and experience in the field on which he is to give such expert opinion, and the technical or scientific tests undertaken in reaching the opinion offered. Upon giving his qualification and opinion, and the Respondent, failing to question the qualification being claimed and the Report rendered, the law then is to the effect that same cannot be raised on appeal. PW5 having failed to state his qualification and to further state the technical and or scientific tests undertaken by him in arriving at the Report, Exhibit E the trial Judge acted in error when it accepted and relied on same to ground his finding on the issue. I, therefore, resolve this issue in favor of the Appellant.
After resolving the issues, the Court of Appeal concluded that:
It is apparent that what was not conclusively determined is the value of the Respondent's property destroyed by the Appellant, which has not been proved. It is my view that the claim under this heading, being in the nature of special damages, for which it is trite that same must be strictly proved The failure to prove the head of claim, as required by law leads to the inevitable conclusion that same was not proved and the claim is dismissed. The other heads of claim have not been appealed against; therefore the Judgment of the lower Court on same is affirmed.
An appeal was lodged at the Supreme Court.
Issues
Having regard to the oral and documentary evidence of the Appellants' witnesses, particularly that of the Estate surveyor and Valuer (PW4) as stated in his Report (Exhibit E) as to his qualification and technical procedure involved in arriving at his conclusion, whether the Court of Appeal was right to have held that the special damages of N12,000,000.00 (Twelve Million Naira) awarded by the trial Court was in error.
The Respondent raised a preliminary objection in his own Brief, challenging the competency of the said two Grounds of Appeal, on the ground that they are either on facts and or mixed law and fact, which by decided authorities, require leave of the lower Court.
Held - Summary
1. Grounds of Appeal – How Ground of law, facts or mixed law and facts is determined as such
The Appellant must itemize the error or misdirection in the Particulars to the Ground(s) of Appeal. The Particulars of Error or Misdirection should not be independent complaints from the Ground(s) of Appeal but ancillary to it. See Globe Fishing Ind. Ltd. V. Coker (1990) 7 NWLR (PT. 162) 265 and Nyako V. Adamawa State House of Assembly & Ors. (2016) LPELR-41522(SC), wherein this Court per M. D. Muhammad, J.S.C., observed that - The law does not allow a Party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against a decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an Appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the Parties. Thus, in determining its category, the Ground of Appeal must be construed together with the Particulars of Error, because its classification as a ground of law, can only give competence to an appeal without leave, if the nature of the misdirection or the error clearly stated in the Particulars, bears out the category assigned to it.
2. Ground of appeal – Effect of failure to obtain requisite leave
Where the Ground of Appeal involves questions of fact or of mixed law and fact, leave to Appeal must be obtained from the Court of Appeal or this Court. Failure to obtain the requisite leave renders the Appeal filed incompetent.
In Akpasubi V. Umweni (1982) 11 SC 113, where Eso, J.S.C., observed: 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 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 V. Comm., for Finance and Econ. Dev. (supra), wherein Onnoghen, J.S.C. (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.
3. Grounds of law and grounds of fact or mixed law and fact – How distinguished and principles guiding how to differentiate
In this case, the question that rears its head is whether the two Grounds of Appeal raised in the Appellants Notice of Appeal are grounds of law, as they said, or grounds of fact or mixed law and fact, as contended by the Respondent?
I must say that this is not an easy question to answer because there is a very thin line that runs between the said two categories, which makes it difficult to decipher a question of law from a question of fact. However, this Court has laid down guidelines in numerous cases, which set out parameters, for finding answers to the said question - see Board of Custom & Excise V. Barau (1982) NSCC (Vol. 13) 358, wherein this Court per Eso, J.S.C., aptly observed - The Court of Appeal has to decide first, as a matter of law that a trial Court failed to make use of the advantage it has of seeing the Witnesses before proceeding to substitute as a matter of fact, its own finding made on the printed evidence - it is only where there is a wrong application of such facts that a Court of Appeal interferes. Where, however the Court of Appeal finds as a matter of law that the facts have been correctly applied, it does not interfere.
The Court does not proceed any further to deal with facts. This fine distinction is very important for it goes into the jurisdiction, which a Court of Appeal, exercises under the Constitution. While appeal to the Court of Appeal on the issue of law is as of right, an appeal on the facts is with leave of the Court from where the appeal lies or the Court to which the appeals lies. - Where a trial Court fails to apply the facts, which it found, correctly to the circumstances of the case, 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 and not of fact. When the Court of Appeal finds such application to be wrong and decides to make its findings, such findings made by Court of Appeal are issues of fact and not law. Where the Court of Appeal interferes and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by a lower Court of Appeal is a ground of law and not of fact. It is only where there is an appeal against the finding made by the Court of Appeal in this exercise that issues of fact arise and leave will be required. See Dairo V. Union Bank (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide: - Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground of appeal is a ground of mixed law and fact - Maigoro V Garba (1999) 10 NWLR (Pt. 624) 555.
i. A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact is a ground of mixed law and fact.
ii. Where the evaluation of facts established by the trial Court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and fact.
iii. Where evaluation of evidence tendered at the trial is exclusivity questioned, it is a ground of fact simpliciter.
iv. Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter.
v. It is a ground of law if the adjudicating Tribunal or Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors.
vi. Several issues that can be raised on legal interpretation of deeds, documents, term of all, words or phrases, and inferences drawn from therefrom are grounds of law.
vii. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts.
viii. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See Ogbechie V. Onochie (supra) where ESQ., J.S.C., citing an article by C.T Emery in Vol. 100 LQR held: lf the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur it is question of law.
4. Grounds of law and grounds of fact or mixed law and fact – How distinguished and principles guiding how to differentiate
In Metal Const. W.A. Ltd. V. Migliore (supra), this Court per Obaseki, J.S.C., expatiated on the principles, as follows: Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc.
Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by the rules of Court, a particular decision or disposal of the case in a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law.
A decision of a trial Judge is normally a mixed finding. Applying the principles to this case, I will not hesitate to say that Ground 1 of the Grounds of Appeal is a ground of fact or of mixed law and fact.
5 Leave to appeal under Section 233(3) of the 1999 Constitution – Nature of
Leave is a condition precedent to appealing under Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, as far as leave to appeal to the Court is concerned, the general power of the Court to entertain it is as per the constitutional provisions as contained in Section 233(3) of the Constitution. If or when a ground of appeal is based on facts alone or on mixed law and facts, it cannot be filed in the Supreme Court unless leave is sought and obtained. The above is very important in that the Supreme Court would have no jurisdiction to hear an appeal where the grounds of appeal are on facts or/and mixed law and facts and the Appellants never sought and obtained leave to file the grounds. Per Abba Aji JSC
Ariwoola, Okoro, Galumje and Abba Aji JJSC all concurred with the lead judgement
Counsel
G. E. Ezomo Esq. for Appellants
Olayiwola Afolabi, Esq. for Respondent.
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