UZOHO V ASUGHA

UZOHO V ASUGHA


COURT OF APPEAL

OWERRI JUDICIAL DIVISION

HOLDEN  AT OWERRI

ON THURSDAY THE 30TH DAY OF MARCH, 2017


 APPEAL NO: CA/OW/111/2012

CITATION:

BEFORE THEIR LORDSHIPS

 R.C. AGBO  JCA

 I. G. MBABA   JCA

 T.O. AWOTOYE  JCA


BETWEEN  

PETER DIKE UZOHO

(APPELLANT)

(For himself and on behalf of the other members of the family of late Okereke Nkuka of Amaorji Nkwerre Town)   

 AND 

VICTOR NWANERI IKEKWEM ASUGHA         

(RESPONDENT)


PRONOUNCEMENTS

A.   APPEAL

  1. Ground of Appeal — Effect of combining an Incompetent Ground of Appeal with a Competent Ground of Appeal.

“The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.  See the case of Oyebadejo vs Olaniyi & 0rs (2000)LPELR -6926 CA; Afolabi vs. The State (2016) LPELR – 40300 (SC); Obosi vs NIPOST (2013) LPELR – 21397 CA.” Per Mbaba JCA

  1. Ground of Appeal — How to identify a ground of law.

“The case of Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67)718, which Appellant relied on, heavily, is quite instructive on what happens, in circumstances like this, that the grounds of appeal are of mixed law and facts.  In that case, Nnaemeka – Agu, JSC, gave some hint on how to identify a ground of appeal that is of law, from a ground of mixed law and fact. He said: “A decision on the point whether a ground of appeal raises question of law alone, certainly, does not depend on the label an Appellant gives to the ground in question.  Such a decision involves an examination of the ground of appeal as framed, together with the particulars thereof before resolving the point.  Thisis what this Court did in S. U. Ojemen & 3 0rs. Vs. His Highness William 0. Monodu II & 2 0rs. (1983) 3 SC 173 before resolving such point.”  Per Mbaba JCA

  1. Leave to Appeal: Effect of failure to seek Leave to Appeal where required.

See the case of NJC VS. Agumagu (20115) LPELR 24503 CA, where my learned brother Ogbuinya JCA relied on the Supreme Court case of Nigeria Dev. Co. Ltd vs. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498 at 520 to say that “The leave requirement is a prerequisite to activation of jurisdiction of Courts and fair hearing… that where leave of court is required for filing an appeal and an Appellant, ignores seeking and obtaining the requisite leave before filing same, the appeal is rendered incompetent.  UBN Plc vs. Songunro (2006) 16 NWLR (Pt.1006) 504; Garuba vs. Omokhodion (2011) LPELR – 1309 SC.  In the case of Adejumo vs. Agumagu & 0rs. (2015) LPELR – 24502 CA that advice was given to parties and Counsel, when Ogbuinya JCA said: “This appeal brings to the fore the crying need for learned Counsel and, by extension, litigants to always obtain leave of Court, as a precautionary measure, in situations they are uncertain as to the status of their grounds of appeal.  Had the Appellant procured the leave of the lower Court or of this Court, exabundanti, cautela, their appeal would not have been caught in the inescapable den of incompetence and it would have been duly considered by its merits.” Per Mbaba JCA

  1. Leave to Appeal: Need for Leave to Appeal against an Interlocutory decision.

“Of course, a Counsel who is experienced and serious will not throw caution to the winds and so, to make assurances doubly sure, will apply for leave to Appeal, when taking out appeal against interlocutory decision of the High Court, on ground  of Law, facts  or of mixed law and facts.” Per Mbaba JCA

  1. Ground Of Appeal – Proper procedure where a counsel is in doubt as to the nature of a ground of appeal.

“Whether a ground of appeal is of law, alone or of mixed law and facts, usually, poses a problem and Counsel are always advised, in the interest of their clients, to be circumspect, and, when in doubt, to apply for leave to appeal, as it may be difficult to, completely, divorce the surrounding or applicable facts from a given ground of law in an appeal, where Appellant opted to appeal against an interlocutory decision of the High Court on ground of law, alone.   And Appellant must be doubly sure that his ground of law is so couched in such a way that element(s) of facts will not be traced in it to truncate the appeal.” Per Mbaba JCA

B. Jurisdiction

6. Appeal- Effect of the absence of jurisdiction in an appeal.

 “I do not think, I have jurisdiction, or that it is necessary, to further consider the merits of the appeal, in the circumstances, in view of the decision in the Supreme Court case of Ikechukwu vs FRN (2015) LPELR – 24445 (SC), where my Lord, Nweze  JSC said: “… where the Court, as an intermediate Court, decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues, once it has taken a decision on the question of jurisdiction FCDA VS Sule (1994) 3 NWLR (Pt.332)256 at 282; Oro vs. Falade (1995) 5 NWLR (Pt.396) 385, 407; Ifeanyi Chukwu (Osondu) Ltd vs. Soleh Boveh Ltd (2000) 5 NWLR (Pt.656) 322, 352.  It means, therefore, that where, as was the case at the lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination, distilled by the parties to the appeal.  Onigemeh vs Egbochualam (1996) NWLR (Pt.448) 255; NEPA vs. ANGO (2001) 15 NWLR (Pt.757) 627; Uwazurike & 0rs. Vs. A.G. Federation (2007) LPELR – 3448 SC; (2007) 8 NWLR (Pt.1035) 1.  See also the case of Labour Party vs Bello & 0rs. (2016) LPELR – 40848 CA which relied on the above decision by Nweze JSC.”

 C. Statutory Interpretation

7. Court of Appeal Act –On the Constitutionality of Section 14 (1) of the Court of Appeal Act 2004

“Appellant had argued that right of appeal is constitutional and cannot be whittled down by any other statutory provision.  Appellant should appreciate that the provisions of Section 14 (1) of the Court of Appeal Act, which regulates how interlocutory appeal can be initiated, does not deny a party right of appeal, but rather regulates how it should be done, and that the Section enjoys the backing of the Constitution, as seen in Section 242 (1) and 243 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which state as follows:

242 (1) – subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decision of the Federal High Court or High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

243(1) any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court, conferred by this constitution, shall be – Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. 

See the case of Kwazo vs Railway Property Company Ltd & 0rs (2014) LPELR – 23737  (CA), where we held ”By Section 14 (1) of the Court of appeal Act, 2004, where “… an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of appeal.  This provision has constitutional backing in Sections 242 (1) and 243 (1) (b) of the 1999 Constitution…  This appeal is against an interlocutory decision of the trial Court, refusing to grant injunction sought, pending the determination of the suit.”

See also Ibrahim vs Agiri (2014)LPELR 23610 CA:“By Section 14 (1) of the Court of Appeal Act, 2004, where “… an interlocutory order is made in course of any suit or matter, an appeal shall by the leave of that Court of the Court of Appeal, lie in the Court of Appeal…”  This provision has a constitutional backing in Sections 242 (1) and 243 (1) (b) of the 1999 Constitution, and is binding on Appellant seeking to appeal against interlocutory decision of the trial Court, especially, where the grounds of appeal thereof are not of law, alone.  See Garba vs Ummuani (2013)12 WRN 76.” Per Mbaba JCA  

 

 


LEAD JUDGMENT DELIVERED BY  MBABA, JCA


This is an interlocutory appeal against the Ruling of the High Court of Imo State in Suits NOS.HOR/108/88 and HOR/113/89  (consolidated), delivered on 11/10/2010 in respect of an application for amendment of the pleadings, brought by the Appellant at the lower Court, which was refused.  Appellant was the Defendant in HOR/108/88 and Plaintiff in HOR/113/89 and had sought to amend both his statement of claim (in HOR/113/89) and statement of defence (in HOR/108/88).

The Respondent (as Plaintiff) had first originated Suit No.HOR/108/88 on 3/8/88 against one Felix Onwuachu, seeking a declaration over of the Parcel of land, called ALA AMA OKEREKE”, situate at Obinulu Umuduruaji, Nkwerre Town.  He also claimed for damages and perpetual injunction.  But on 5/7/89, Mr. Felix Onuwuachi filed a cross action (HOR/113/89) against the Respondent (Victor Nwaneri Ikekwem and one Dick Nworisa, also seeking a declaration that he was entitled to the Statutory Right of Occupancy over the same land – ALA AMA OKEREKE, which he (Felix) claimed to have redeemed, following an arbitration by the Eshi of Nkwerre i.e. the Traditional Ruler of the Town.  In the alternative, the said Felix Onuwuachu (as Plaintiff) claimed for an order of Court that Dick Nworisa (the 2nd Defendant) should accept the redemption fee of N4.00 (four Nair) with which the disputed land was allegedly pledged to one Madam Nwauruozor  Ikejiofor of the family of Mr. Dick Nworisa,  and who had died at the time of filing the suit.  The Plaintiff (in HOR/113/89) also prayed for an order of Court cancelling the Statutory Certificate of Occupancy Issued to the Respondent (Victor Nwaneri Ikekwem Asugha).

Appellant (Peter Dike Uzoho) was on 5/6/2006 substituted for the original Plaintiff in HOR/113/89 (Felix Onuwuachu) who had become too sick and weak to continue with the case.  He (Felix) later died.  

The two suits were later consolidated, being about the same parties and the same subject matter, and upon consolidation, the Respondent herein became the Claimant and the Appellant, the Defendant.  

The new High Court Civil Procedure Rules, 2008, required all pending Civil matters to continue with the new Rules, thus it became necessary to front load the processes.  The Respondent, being Claimant in the consolidated Suits filed his deposition and that of his witness and served same on the Appellant.  Appellant then saw the need to amend his pleadings in the consolidated suits, and therefore filed a motion on 12/10/2009, seeking:

  1. …Leave to amend his statement of defence in HOR/108/88, by substituting paragraph 2,3(III), 4 (a), (d) and 13 thereof with the averments numbered as paragraphs 2, 3(iii), 4 (a), (e) and 13, distinctly underlined in the Amended Statement of defence, a copy of which is exhibited hereto and marked Exhibit A

 

  1. …Leave to further amend his amended statement of claim in HOR/113/89 by substituting paragraphs 1, 2, 5, 6, and 10 thereof with the averments numbered as 1, 2, 5, 6, 9, 10 and 13 and new paragraphs all of which have been distinctly underlined in the Further Amended Statement of Claim, a copy of which is Exhibited hereto and marked Exhibit B.

 

  • Deeming the exhibited Amended statement of defence in HOR/108/88 and the exhibited Further Amended Statement of Claim in HOR/113/89 as having been properly filed and served appropriate filing and service fees having been paid in advance.”  See page 50 of the Records.

 

 The Respondent opposed the motion and upon hearing, the trial Court in its ruling, refused the application and dismissed it.  The Court said;

“… in granting this kind of equitable reliefs, which on the face of it ordinarily appears normal, the Court should however exercise caution to ensure that allowing such process amendment must be done in such a way that the principle of justice and fair play is observed, having regard to the circumstances of each particular case.  This therefore leads us to the question as to whether the granting of this application will create or occasion any injustice and hardship to the Respondent.  Though the Applicant says it will not, but a thorough glance or gleen(sic) of the application, its history, time and facts sought to be amended will reveal otherwise.

      Now the Applicant has charged his root of title from one ‘0kereke Nkuka’ as the original owner of Nkwere in the Amendment sought.  Also Issues raised in the Applicant’s further amended statement of claim paragraph 10, and 13 are certainly intended to over reach Respondent as they are issues to be ordinarily raised and canvassed by the Respondent.  These certainly do not accord with an amendment sought genuinely with open intention to correct ordinary mistake.  For instance, the Applicant/Deponent in this application anchored his reason for this amendment on the mistake of Counsel, my view is that there is no mistake of Counsel.  The amended Statement of Claim was filed by the Applicant on 8/5/2006 and the amendment was granted on 5/6/2006.  The Respondent commenced and concluded his evidence in-chief and was being cross-examined.  Now after 4 years, the Applicant, who has always been in Court, suddenly woke up from either sleep or slumber to now complain about his Counsel not stating his view correctly in his pleading on an issue as important as his genealogy of the land in dispute.  This, in my view, is not honest.  It is against people like this that NNAMEKA AGU JSC… has cautioned in IROEGBU VS. OKWORDI (1990)6 NWLR (Pt.159) 643, that much as application for amendment’s should be considered virtually as right but “In my opinion, the Courts will not regard this a panacea in all cases.  The court must be satisfied not only that the allegation of fault of Counsel is true and genuine but also that it is available, having regard to the circumstances of the particular case.”

  In line with the above…  I hold the view and have also come to the inevitable conclusion after thoroughly and critically evaluating the merits of this application, that this Hon. Court is not satisfied that the allegation of fault of Counsel is true and genuine, and therefore, has failed to avail this application, having regard to the circumstances of this particular case.  It is more disheartening that these consolidated suits are cases of 1988/1989, a period of about 22 years now and this type of application is being made after 20 years.  No indication whatsoever that new information or facts originally unavailable has now come to light in all the reasons for the application.  (See pages 81 -82 of the Records)

 

Dissatisfied with the above, Appellant filed Notice and grounds of appeal against the Ruling on 20/10/10 and raised 2 grounds of Appeal.  See Pages 83- 85 of the Records.  He filed his brief of argument on 7/6/2012 and distilled a lone Issue for the determination of the appeal, namely: 

“Whether the Learned trial Judge by refusing the application of the Appellant for the amendment of his pleadings exercised his discretion in the matter judicially and judiciously.”

The Respondent, on 1/7/13, filed a Notice of preliminary objection to the hearing of the appeal, on the grounds that:

  1. Leave was not obtained by the Appellant  before the Appellant brought this appeal.

 

  1. Ground 1 of the grounds of appeal is incompetent and

 

  1. Appellant’s issue for determination is incompetent.

        The Respondent filed his brief on 28/6/13, which was deemed duly filed on 15/6/16.  He argued the preliminary objection on pages 3 to 10 of the Brief.  On the main Appeal, the Respondent also distill a lone issue for determination, namely:

“Whether the lower Court was right in dismissing the application for amendment. “

Appellant filed a Reply Brief on 28/6/16 to react to the Preliminary Objection, mainly.

        At the hearing of the Appeal on 21/2/17 the parties adopted their briefs, accordingly, after the argument of the Preliminary Objection.

        As is the usual practice, I shall first of all consider the Preliminary Objection, as the success of the same can determine this appeal in limine.  See the case of Nwaolisah v. Nwaobufoh ((2011)LRCN 21 at 60 (2011) 14 NWLR (Pt.1268) 600; Alaribe vs Okwuonu (2015)LPELR 24297

       Arguing the Preliminary Objection, Respondent’s  Counsel relied on Section 14 of the Court of Appeal Act, 2004 and Section 242 (1) of the Constitution of the Federal Republic of Nigeria, as amended, to say that Appellant can only appeal against the interlocutory decision of the lower Court with the leave of that Court or of the Court of Appeal.  He also relied on the case of Mokelu vs Federal Commissioner for Works and Housing (1976) ALL NLR (PT.1) 276, 282, to say that it is mandatory for Appellant to seek and obtain the leave of the lower Court or of this Court to appeal.  He also relied on the views of Agim JCA in Nwabueze vs. INEC & Ors. CA/E/116/2011, delivered on 20/5/13, where my learned brother held, that:

“… the decision appealed against… being an interlocutory decision, leave to commence this appeal ought to have been first sought for and obtained from the High Court, or this Court before bringing the appeal

     The Respondent also argued that the ground one of the appeal by Appellant was a ground of mixed law, and facts and so cannot be treated as ground of law alone.  He relied on the case of Nwadike vs Ibekwe (1987)4 NWLR (Pt.67)718, 729 to say that even though the ground is headed as one of error in law, an examination of same reveals that it is of mixed law and facts.  He referred us to paragraphs (i) (i) and (iv) of particulars of the ground of appeal.

     The third ground of objection is that Appellant’s issue for determination of the appeal is incompetent because the issue derived  from a combination of incompetent grounds (1 and 2) of Appeal to formulae it.  He relied on the case of Aribo vs CBN (2011)12 NWLR (Pt.1260)133; Schindemi vs Gov. Lagos State (2006)10 NWLR (Pt.987)1 at 28; Korede vs. Adedokun (2001) 15 NWLR (Pt.736) 483, 500.  Counsel asserted that arguing an incompetent ground with a valid ground, together, in a lone issue for determination, renders the issue incompetent.  He urged us to strike out the Appeal.

        In his Reply Brief, Appellant conceded that neither the leave of the trial Court nor that of this Court (Court of Appeal) was obtained before the instant appeal was filed.  However, he argued that leave is not required in every circumstance, to file appeal; that

“S.241 (1) (b) of the 2011 (sic) Amended Constitution of Federal Republic of Nigeria provides that an appeal shall lie from decisions of the Federal High Court or a High Court to the court of appeal as of right in the following cases:

Where the ground of appeal involves question of law alone decisions in any civil or criminal proceedings”

        Counsel argued that a right conferred by the Constitution cannot be whittled down by the provisions of any other statute.  He relied on Madu vs. Mbakwe (2008) 10 NWLR (Pt.1095)293 at 332.  Counsel relied on Nwadike vs. Ibekwe (supra) on when a ground of appeal is said to be of law alone; that the Supreme Court said:

 “Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground famed on it is a ground of law; provided it is limited to admitted or proved and accepted facts.  This is based on the recognised fact that inference to be drawn from a set of proved or undisputed facts are matters upon which an Appellate Court is as competent as the Court of trial.”

       Counsel argued that in this case, at hand, the facts that gave rise to the grounds of appeal are not in dispute as they are admitted on both sides, namely:

“(a) the parties had filed and

        exchanged pleadings

(b)  the case was part heard before

two Judges who were no longer

in Nkwerre/Isu Judicial Division at the time the application for amendment of pleadings was made by the Appellant.  They were no longer in a position to continue with the hearing of the case;

  • a new High Court Civil Procedure Rules has been introduced and the case had just come up before Hon. Justice  T.N. Nzeukwu for hearing de novo.
  • the Appellant had not even filed the deposition of the evidence of his witnesses and had not filed the list of documents on which he intended to rely in the course of trial as at the time he applied to amend his pleadings.  Notwithstanding the foregoing, the application was refused.

     Counsel relied on the case of Ogbechie & 3 0rs vs. 0nochie & 2 0rs. (1986) 2 NWLR (Pt.23) 484 at 492 to say that a ground of appeal which complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, is a ground of law.  He also relied on Metal Construction (West Africa) Ltd vs. D. A. Migliore & 0rs. In Re Miss C.  Ogundare (1990) 1 NWLR (Pt. 126) 299 at 314; Board of Customs & Excise vs. Barau (1982) 10 SC 48 at 137; Dawodu & Anor vs Ologundudu & 5 0rs (1986)

 4 NWLR (Pt.33) 104 and urged us to dismiss the preliminary objection, saying the grounds of appeal in this case are grounds of law and the appeal is as of right under Section 220 (1) (b) of the then 1979 Constitution (now Section 241 (b) of the 2011 (sic) Amended Constitution of the Federal Republic of Nigeria.

RESOLUTION OF THE PRELIMINARY OBJECTION

     I have to start by expressing surprise that Appellant’s Counsel does not appear to know how to cite Sections of the 1999 Constitution of the Federal Republic of Nigeria, as amended.  Twice Appellant’s Counsel referred us to what he termed,

       Section 241 (1) (b) of 2011 Amended Constitution of the Federal Republic of Nigeria” See pages 1 and 3 of the Reply Brief, filed on 28/6/16.  That is very sad and regrettable, as there is no such Constitution of the Federal Republic of Nigeria.  If Appellant was thinking of the various Acts of the National Assembly which amended the 1999 Constitution in 2011, then he was in grave error, as those Acts rather Amended the 1999 Constitution of the Federal Republic of Nigeria, and the various efforts, at amending the Constitution, never suggested that a new Constitution was made in 2011!   Rather, the citation clauses have always stated that the Constitution remains as the “1999 Constitution of the Federal Republic of Nigeria, as amended”

        Even ordinary citizens, who are not learned in the law, cite and are expected to cite the Constitution, correctly and properly.  Such blunder by a lawyer, handling a case in Court (and an appeal at Appellate Court, for that matter) appears unpardonably disappointing!

        Appellant’s Counsel also revealed a clear lack of understanding of the issue in contention, namely, when a ground of appeal is said to be of law, alone, or of mixed law and facts, to warrant seeking and obtaining the leave of Court to appeal, in respect of Interlocutory decisions of the High Court.  The answers which Appellant gave in paragraph 1.07 of the Reply brief, to show which facts are not indispute or are admitted in this case, to justify Appellant’s failure to seek leave to appeal, is equally disappointing.  Whether a ground of appeal is of law, alone or of mixed law and facts, usually, poses a problem and Counsel are always advised, in the interest of their clients, to be circumspect, and, when in doubt, to apply for leave to appeal, as it may be difficult to, completely, divorce the surrounding or applicable facts from a given ground of law in an appeal, where Appellant opted to appeal against an interlocutory decision of the High Court on ground of law, alone.   And Appellant must be doubly sure that his ground of law is so couched in such a way that element(s) of facts will not be traced in it to truncate the appeal.  

         Of course, a Counsel who is experienced and serious will not throw caution to the winds and so, to make assurances doubly sure, will apply for leave to Appeal, when taking out appeal against interlocutory decision of the High Court, on ground  of Law, facts  or of mixed law and facts. See the case of NJC VS. Agumagu (20115) LPELR 24503 CA, where my learned brother Ogbuinya JCA relied on the Supreme Court case of Nigeria Dev. Co. Ltd vs. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498 at 520 to say that

“The leave requirement is a prerequisite to activation of jurisdiction of Courts and fair hearing… that where leave of court is required for filing an appeal and an Appellant, ignores seeking and obtaining the requisite leave before filing same, the appeal is rendered incompetent.  UBN Plc vs. Songunro (2006) 16 NWLR (Pt.1006) 504; Garuba vs. Omokhodion (2011) LPELR – 1309 SC

       In the case of Adejumo vs. Agumagu & 0rs. (2015) LPELR – 24502 CA that advice was given to parties and Counsel, when Ogbuinya JCA said:

“This appeal brings to the fore the crying need for learned Counsel and, by extension, litigants to always obtain leave of Court, as a precautionary, measure, in situations they are uncertain as to the status of their grounds of appeal.  Had the Appellant procured the leave of the lower Court or of this Court, exabundanti, cautela, their appeal would not have been caught in the inescapable den of incompetence and it would have been duly considered by its merits.”

   Several judicial guides have been given to assist Counsel and litigants to appraise a ground of appeal which is of law alone or of facts or of mixed law and facts. See the case of Ogbechie & ORS. VS. Onochie & Ors. (1986) 2 NWLR (Pt.23) 484; First Bank of Nigeria Plc vs. Abraham (2008) 18 NWLR (Pt.1118)172; Nwadike vs Ibekwe (1987) 4 NWLR (Pt.67)718.

      I do not think it is necessary to analyse that in this appeal, beyond stating the obvious, that the two grounds of appeal formulated to anchor this appeal, though couched as grounds of error in law, were, actually, of mixed law and facts, as the surrounding  factual basis of the complaints could not be wished away.  In ground one, Appellant complained that;

“The learned trial judge erred in law when he rejected the application of Appellant to amend his statement of defence, in HOR/108/88 and his statement of claim in HOR/113/89, respectively, at a time when hearing in the consolidated suits had not even started before him and thereby denied Appellant fair hearing…”

     That, clearly, called up the attendant facts relating to what constituted the pleadings and what were to be amended as well as the time the applications were brought, vis a vis, the hearing of the cases, consolidated, and how/when the cases were consolidated.  The alleged particulars of error – (ii), (iii) and (v) (Appellant in error referred to them as (i) (iv) (vi) clearly revealed the factual basis of the alleged error in law, when Appellant posited:

  • The Consolidated suits were not yet ripe for hearing before the learned trial Judge…”  (At what stage was the application – facts?)
  • The fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes they make in the conduct of their cases…  (Was there any punishment for mistake, or any mistake of Counsel? – Facts!)

 (v)     The amendment sought was very material to the case of Appellant as it had to do with his root of  title to the land in dispute and the witnesses to   the customary pledge which is fundamental to his case (What were the amendments? – Facts!)

Grounds 2 was that The learned trial Judge erred in law when he refused to follow the decision of the Supreme Court on the issue of amendment of pleadings in land cases, in particular, and and to which he was duly referred and rather choose to overrule it, so to speak’ That is, inherently, a ground of law, but what about the facts of the given Supreme Court decisions which Appellant wanted the trial Court to follow, as opposed to the facts of the case at hand, – where they not distinguishable?  I believe the consideration of the facts of those cases, vis –a  vis the case at hand, would reveal the factual basis of that ground of law, making it a ground of mixed law and facts, in my opinion.  

        Even if the 2nd ground were to be taken as, purely,  that of law, Appellant, combining it with the ground 1, to formulate a lone issue for the determination of the appeal, would be offensive, upon the finding that ground 1 was one of mixed law and facts, and so, incompetent to host the appeal.  The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.  See the case of Oyebadejo vs Olaniyi & 0rs (2000)LPELR -6926 CA; Afolabi vs. The State (2016) LPELR – 40300 (SC); Obosi vs NIPOST (2013) LPELR – 21397 CA.

            Appellant had argued that right of appeal is constitutional and cannot be whittled down by any other statutory provision.  Appellant should appreciate that the provisions of Section 14 (1) of the Court of Appeal Act, which regulates how interlocutory appeal can be initiated, does not deny a party right of appeal, but rather regulates how it should be done, and that the Section enjoys the backing of the Constitution, as seen in Section 242 (1) and 243 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which state as follows:

242 (1) – subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decision of the Federal High Court or High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

243(1) any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court, conferred by this constitution, shall be –

  • ……………….
  • Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. 

See the case of Kwazo vs Railway Property Company Ltd & 0rs (2014) LPELR – 23737  (CA), where we held

”By Section 14 (1) of the Court of appeal Act, 2004, where “… an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of appeal.  This provision has constitutional backing in Sections 242 (1) and 243 (1) (b) of the 1999 Constitution…  This appeal is against an interlocutory decision of the trial Court, refusing to grant injunction sought, pending the determination of the suit.”

See also Ibrahim vs Agiri (2014)LPELR 23610 CA:

“By Section 14 (1) of the Court of Appeal Act, 2004, where “… an interlocutory order is made in course of any suit or matter, an appeal shall by the leave of that Court of the Court of Appeal, lie in the Court of Appeal…”  This provision has a constitutional backing in Sections 242 (1) and 243 (1) (b) of the 1999 Constitution, and is binding on Appellant seeking to appeal against interlocutory decision of the trial Court, especially, where the grounds of appeal thereof are not of law, alone.  See Garba vs Ummuani (2013)12 WRN 76.”

 

       I therefore agree with the Respondent, that the grounds of appeal, formulated by the Appellant, were not completely of law, alone, to enable him invoke Section 241 (1) (b) of the 1999 Constitution, to save the interlocutory appeal.  The case of Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67)718, which Appellant relied on, heavily, is quite instructive on what happens, in circumstances like this, that the grounds of appeal are of mixed law and facts.  In that case, Nnaemeka – Agu, JSC, gave some hint on how to identify a ground of appeal that is of law, from a ground of mixed law and fact.

He said:

“A decision on the point whether a ground of appeal raises question of law alone, certainly, does not depend on the label an Appellant gives to the ground in question.  Such a decision involves an examination of the ground of appeal as framed, together with the particulars thereof before resolving the point.  Thisis what this Court did in S. U. Ojemen & 3 0rs. Vs. His Highness William 0. Monodu II & 2 0rs. (1983) 3 SC 173 before resolving such point.”

 

     I have already held that the grounds of appeal in this case, particularly, ground one and its particulars, disclosed a ground of mixed law and facts, thereby making the appeal incompetent, by reason of failure to seek and obtain leave of the lower Court or of this Court, to file the appeal, being one founded on an interlocutory decision of the lower Court.

     This appeal is, therefore, incompetent and cannot be entertained, any further, as I find merit in the preliminary objection, which is hereby upheld.  

      I do not think, I have jurisdiction, or that it is necessary, to further consider the merits of the appeal, in the circumstances, in view of the decision in the Supreme Court case of Ikechukwu vs FRN (2015) LPELR – 24445 (SC), where my Lord, Nweze  JSC said:

“… where the Court, as an intermediate Court, decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues, once it has taken a decision on the question of jurisdiction FCDA VS Sule (1994) 3 NWLR (Pt.332)256 at 282; Oro vs. Falade (1995) 5 NWLR (Pt.396) 385, 407; Ifeanyi Chukwu (Osondu) Ltd vs. Soleh Boveh Ltd (2000) 5 NWLR (Pt.656) 322, 352.  It means, therefore, that where, as was the case at the lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination, distilled by the parties to the appeal.  Onigemeh vs Egbochualam (1996) NWLR (Pt.448) 255; NEPA vs. ANGO (2001) 15 NWLR (Pt.757) 627; Uwazurike & 0rs. Vs. A.G. Federation (2007) LPELR – 3448 SC; (2007) 8 NWLR (Pt.1035) 1.

   See also the case of Labour Party vs Bello & 0rs. (2016) LPELR – 40848 CA which relied on the above decision by Nweze JSC. 

         I, however, have to comment that, it rather sad, very sad and regrettable, that the two consolidated Suits NO. HOR/108/88 and HOR/113/89, which originated in the Court below in 1988 and 1989, respectively, are still in their preliminary stages and appear to have been frustrated further by this appeal, which have lasted since 2012 (5 years!)  Thus, the suits which raised rival claims to land, the same subject matter of litigation, is yet to see prospect of ending, about 29 years, after commencement!  This brings to the fore, again, the need for effective case management by the Courts, and the fundamental duty on Counsel to refrain from unnecessary interlocutory appeals or other unconscionable adversarial tactics/practices, aimed at ambushing opponents and/or frustrating quick determination of cases, on the merits.  See NWANA VS U.B.N PLC (2013) LPELR – 21823 (CA); (2015) 1 NWLR (Pt.1439) 79.

        This appeal is, accordingly, struck out for incompetence.

         Parties to bear their respective costs.

  

 


COUNSEL:

APPELLANT:

Chief R. C. Ogu

 

RESPONDENT:

  1. R. Chibuisi (Mrs. with her, E.A. John – Nwosu (Miss)