Distinction Between Grounds of Appeal of Law and Fact

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 14th day of June, 2024

Before Their Lordships

Helen Moronkeji Ogunwumiju

Ibrahim Musa Mohammed Saulawa

Chioma Egondu Nwosu-Iheme

Haruna Simon Tsammani

Jamilu Yammama Tukur

Justices, Supreme Court

SC/946/2018

Between

1.  HON. JUSTICE OLATUNJI AJOSE-ADEOGUN (RTD)

    (Suing for himself as head and on behalf of the Shasore Abapo

    Chieftaincy Family)

2. WAIDI AYENE                      APPELLANTS

    (Suing for himself as a Principal Member of the Shasore Abapo 

    Chieftaincy Family and on behalf of other Principal Members of 

    the Shasore Abapo Chieftaincy Family)

                                                  And

1.  WING COMMANDER DR OLUSEGUN OLOJEDE

2. ALHAJI DALLY AKERELE

    (For himself as head and on behalf of one Arobieke Family of

    Langbasa Village, Etiosa, Lagos)

3. ALHAJI LATEEF FAGBEMI

4. CHIEF SAHEED ADENIYI SANNI

5. ALHAJI GBADEBO ADESANYA

6. ALHAJI ADESINA HASSAN RESPONDENTS

    (For themselves and on behalf of the Elejigbo 

    Family of Langbasa)

(Lead Judgement delivered by Honourable Jamilu Yammama Tukur, JSC)

Facts

The Appellants, acting under the belief that they and their family are the owners of a piece of land measuring 209 hectares at Ijoyi, Eti Osa Local Government Area of Lagos State, filed an action at the High Court of Lagos State seeking inter alia, a declaration of title to the said parcel of land. Upon being served with the Appellants’ originating processes, the 2nd and 3rd Respondent filed a statement of defence and a counterclaim, seeking amongst other reliefs, a declaration that the descendants of the Arobieke Family whom they represent, are the persons entitled to the right of occupancy over the said land. The 4th-6th Respondent, on their part, filed a statement of defence and a counter-claim, in which they sought a grant of statutory and/or customary right of occupancy of the subject land against the Appellants; an order of forfeiture of the 2nd and 3rd Respondent’s customary tenancy on the land for misconduct; and an order granting possession of the land to the 4th-6th Respondent.

After the conclusion of trial, the trial court delivered its judgement in which it held that the Appellants failed to prove their claim to a declaration of title over the disputed land, while the 4th-6th Respondent established a better title. Consequently, the trial court dismissed the Appellants’ claims, and substantially granted the 4th-6th Respondent’s counter-claim. Dissatisfied, the Appellants appealed to the Court of Appeal. However, their appeal was dismissed. The Appellants thus filed a further appeal at the Supreme Court. The parties filed and exchanged their respective briefs of arguments. The 2nd Respondent argued a preliminary objection in his brief of argument. The Counsel for the 4th-6th Respondent also raised a preliminary objection in their brief. 

The Supreme Court however, struck out the 2nd Respondent’s preliminary objection for being incompetent, on the ground that the 2nd Respondent did not file a formal notice of preliminary objection or include it in his brief of argument as required by law, before purporting to arguing his points of objection.

Thereafter, the Court proceeded to consider the preliminary objection raised by Counsel for the 4th-6th Respondent.

Issues for Determination in the 4th-6th Respondent’s Preliminary Objection

The 4th to 6th Respondent’s Notice of Preliminary Objection was brought pursuant to Section 233(2) & (3) of the 1999 Constitution, Order 2 Rules 9 & 32 of the Supreme Court Rules 1985 (as amended) and under the inherent jurisdiction of the Apex Court. 

The following issues were formulated for determination of the 4th-6th Respondent’s preliminary objection:

i. Whether the Appellants’ Notice of Appeal is competent.

ii. Whether there is a competent Appellants’ Brief before the court, in view of the incompetent issues for determination.  

Arguments

Counsel for the 4th-6th Respondent submitted that the Appellants’ Notice of Appeal was incompetent because the appeal was initiated against deceased parties, and also because the Appellants failed to first seek leave of court before instituting the appeal which is against the concurrent findings of fact of the lower court. Counsel cited NZOM v JINADU (1987) 1 NWLR (Pt. 51) 533 at 544 C-D, and posited further that all the grounds of appeal in the Appellants’ Notice of Appeal are grounds of fact, or at best, grounds of mixed law and fact which require leave of court, and the failure by the Appellants to first seek and obtain leave of court to raise the said grounds rendered the grounds as well as the issues formulated therefrom incompetent, and liable to be struck out. 

In response, Counsel for the Appellants argued that the death of the 4th- 6th Respondent could not truncate the appeal as they were sued in a representative capacity, with the effect that the subject-matter of the appeal survived their death. He also submitted that the retention of the names of the 4th-6th Respondent was a mere misnomer, which would have been corrected if the 4th-6th Respondent’s representatives had duly informed the court of the occurrence of their death. He relied on LADEJOBI & ORS v OGUNTAYO & ORS (2004) LPELR – 1734 (SC). 

Counsel for the Appellants also argued that the grounds of appeal in the Appellants’ Notice of Appeal are grounds of law and as such, cannot be said to run foul of the rule that requires seeking leave before concurrent findings of fact can be appealed, or the rule that requires seeking leave before filing of an appeal based on determination of facts. Counsel submitted that since the grounds are valid, the issues raised therefrom are competent. Reliance was placed on BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) 13 NSCC 358 @ PG 389, PARAS 15-25.

Court’s Judgement and Rationale

In determining the 4th-6th Respondent’s preliminary objection, the Apex Court first expounded on the importance of a valid Notice of Appeal as a prerequisite to the origination of a valid appeal. The Court held that the Notice of Appeal, which is the fundamental instrument by which the constitutional right of appeal is implemented, just like an originating process at the trial courts, must be valid in form and substance and properly served, to ground a valid appeal. The Court held that one implication of the foregoing is that a defect in the Notice of Appeal can impugn the validity of the whole appeal process, as it is logically impossible to place something on nothing and expect it to stand. The Apex Court referred to its decision in NONYE IWUNZE v FRN (2015) 6 NWLR (PT. 1404) 580.

On the argument of the Counsel for the 4th-6th Respondent that the failure to substitute the names of the deceased Respondents rendered the appeal incompetent, the Court held that it is not in doubt that the death of a party is one of the instances that would warrant an alteration of the constitution of parties, subject to the leave of court; however, it is the duty of the Party’s representatives to bring that fact to the Court’s notice, and failure to do so would mean that the general rule, that parties must remain the same from commencement of trial through every appellate stage except leave of court is sought and obtained to do otherwise, would apply. The Court found that the failure to substitute the names of the deceased 4th-6th Respondent with the names of their living representatives would thus, not truncate the appeal.

The Supreme Court then proceeded to determine, whether the Appellants’ grounds of appeal were such that required leave of court. The Apex Court,  relying on its decision in FBN PLC v NIMEX PETROCHEMICALS LTD & ORS (2023) LPELR-59983 (SC), held that by the combined effect of subsections (2)(a) and (3) of Section 233 of the 1999 Constitution as amended, for any appeal involving questions of facts and or mixed law and facts to be competent, it is mandatory for the Appellant to seek and obtain the leave of either the Court of Appeal or the Supreme Court; thus, where such an appeal involving questions of facts and/or mixed law and facts is filed without obtaining the leave of the Court, it would be deemed incompetent, null, void and liable to be struck out by the Court.

The Supreme Court in distinguishing grounds of law from grounds of fact, held that a ground of law is a ground of appeal that complains about misunderstanding of law or misapplication of law to settled or admitted facts, while grounds of fact refer to a situation where the court has to settle issues of facts or evaluation of evidence and the complaint of grounds of facts is that the Judge misapprehended the facts. The Court relied on its decision in C.O.P. v OGOK & ORS (2022) LPELR-57558 (SC) (PP 14-15) (PARAS A – B). The Apex Court then proceeded to examine each of the grounds of appeal in the Appellants’ Notice of Appeal to determine whether they are grounds of law, or grounds of mixed law and fact or grounds of fact alone. In its evaluation of the said grounds, the Apex Court held that what is essential in determining whether a ground of appeal involves questions of law or fact or mixed law and fact is not its designation as such by the Appellant, but the import and reality of the complaint such that, it is the nature of the ground of appeal read together with the particulars that determines what a ground of appeal is.

The Court held that Ground 1 of the Appellants’ appeal and its particulars essentially challenge the evaluation of evidence by the trial court vis-a-vis the pleadings filed by the Appellant which led to its conclusion that the Appellants failed to establish that their fore-bearer was the first settler on the land in dispute. The Court held further that a community reading of the remaining grounds together with their particulars revealed that none of the grounds is a ground of law, as the grounds raised questions of appraisal or evaluation of facts and evidence on the traditional history about the founding of the area in dispute by the trial court and affirmed by the Court of Appeal.

The Apex Court found that the grounds of appeal being grounds of mixed law and fact required leave of the Supreme Court or the lower court to be valid and the failure of the Appellants to seek and obtain leave in respect of the grounds of appeal before filing the appeal rendered the grounds incompetent and deprived the Court of jurisdiction to hear and determine the appeal. The Supreme Court consequently struck out the five grounds of appeal upon which the Appellants’ Notice of Appeal was predicated and the issues formulated therefrom for being incompetent

Appeal Struck Out.

Representation 

O. Shashore, SAN with others for the Appellants.

Akintola Makinde with another for the 2nd Respondent.

A. J. Owonikoko, SAN with another for the 4th – 6th Respondent. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)