United Bank For Africa Limited V. Stahlbau Gmbh & Co. KG. (1988)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The short point in this appeal is whether the ground of appeal filed along with the notice of appeal to the Court of Appeal raises a question or questions of law alone. The point highlights the difficulty in drawing the thin fine line between grounds of appeal involving questions of law alone and grounds of appeal involving questions of mixed law and fact.

The point also highlights the continued practice of counsel drafting grounds of appeal to the appeal courts erroneously classifying or describing grounds involving questions of mixed law and fact as grounds of law alone thereby removing or underplaying the emphasis which the questions of fact the grounds involve deserve to the detriment of the appellants rights to articulate the questions involved.

The genesis of this matter began in the High Court of Lagos, Ikeja Judicial Division where the plaintiff filed a writ of summons endorsed with the claim which reads:

“The plaintiffs’ claim against the defendant is for the sum of Austrian Schillings AS 13,552,949.80 otherwise N670,446.89 with interest thereon at 12 3/4% interest per annum from the 19th day of November, 1982 until the final liquidation of the said amount, being the total cost now due and payable by the defendant to the plaintiff for the construction by the plaintiff of a factory in Lagos with the supply thereon of machinery equipment and raw materials at the defendants’ request.

PARTICULARS OF CLAIM

Cost of items supplied on

1. (i) CBN Form No. 273916

(ii) Customs Bill of Entry No. C3315.5 of 15/5/82

(iii) Bill of Lading No. 20 of 26/4/82 – AS6,667,166.00;

2(i) CBN Form No. 273917

(ii) Customs Bill of Entry No. C230025 of 10/8/82

(iii) Bill of Lading No. 501 of 10/8/82 – AS2,728,623.80

3. (i) CBN Form No. 273918

(ii) Customs Bill of Entry No.

(iii) Bill of Lading No.101 of 31/8/82 – AS2,392,412.00

Total – AS13,552,949.80

Otherwise in Naira N670,446.89.

Interest thereon at the rate of 1123/4% per annum from 19/12/82=

1170 days (N234.06 per day)

Total interest – 1170 days x N234.06 = N273,850.20

Grand Total – N944,279.09

The plaintiff (not its attorney) is a foreign company and the address of the plaintiff was given as

A.6812 MEININGEN, Austria

These particulars are contained in paragraph 1 of the amended statement of claim which reads:

“The plaintiff is a limited liability company registered under the laws of the Republic of Austria having as its major business) engineering construction especially steel tankers, steel containers, and metal containers generally, gas cylinders etc. etc. with its registered office at A6812 MEININGEN, Austria. (The plaintiff shall rely at the trial on the Certificate of Incorporation)”

The 1st, 2nd and 3rd defendants are all limited liability companies incorporated under the laws of Nigeria. In particular with respect to the 3rd defendant, the appellant herein the amended statement of claim reads in paragraph 4 thereof as follows;

“The 3rd defendant is a commercial bank incorporated under the laws of Nigeria with its registered office at 97/105 Broad Street, Lagos and it is the commercial bank of the 1st and 2nd defendants for the transaction with the plaintiff, which is the subject matter of this suit.

(The plaintiff shall at the trial found on the 3rd defendant’s acknowledgement on various documents especially on the Central Bank of Nigeria Form M)”

Of particular significance is paragraph 5 of the amended statement of claim which reads;

“On the 3rd day of March, 1983 in Zurich Switzerland the plaintiff and the 2nd defendant put into an agreement in writing the consequence of the negotiations that had been going on between them as evidenced by the delivery by the plaintiff to the 2nd defendant of machines, building materials in invoices (The plaintiff shall at the trial rely on the executed agreement between the parties).

Amending the claim endorsed on the writ of summons, the plaintiff claimed in paragraph 33 of the amended statement of claim as follows:

“1. A declaration that the plaintiff is entitled to the proceeds totaling Austrian Schillings 5,964.030 from Central Bank of Nigeria Forms M Nos. 273917, 273918 and 273919 with collection Number TT/MAR/592-94/88 which the 3rd defendant acknowledged was paid to it in local currency for the benefit of the plaintiff;

2. An order of court that the said proceeds be paid to the plaintiff by the 3rd defendant in Nigeria in local currency equivalent of AS5,964,030 under the SFEM rate of exchange;
3. That the 2nd defendant jointly with the 1st defendant do pay to the plaintiff in local currency equivalent the sum of Austrian Schillings 6,667,160.00 now over due, being proceeds from Central Bank of Nigeria Form M No. 273916;

OR ALTERNATIVELY

4. That the 2nd defendant jointly with the 1st defendant do pay to the plaintiff the total sum of Austrian Schillings 13,552,949.80 now long over due in Local currency equivalent in Nigeria being the proceeds of payment due for goods imported on Central Bank of Nigeria Forms Nos. 237916, 237917, 237918 and 237919 from the plaintiff by the 2nd and the 1st defendant; payment for which has not been effected despite repeated demands;
5. The plaintiff also claims interest at the agreed rate of 12 3/4 per annum from the 19th day of November, 1982 until the final liquidation of the sum outstanding.”

Each defendant filed separate statement of defence although drawn up by the same counsel. Thereafter, the third defendant filed an application by notice of motion for “an order directing that the plaintiff do give security for the costs of this action, and that further proceedings herein be stayed pending the giving of the security.”

The motion was supported by affidavit evidence sworn to by Ashimiyu Oladele Adeniji paragraph 6 of which reads;

“I do verily believe that in the event that the plaintiff’s claim fails any order as to costs in favour of the 3rd defendant will be nugatory in that the plaintiff has no assets within the jurisdiction of the court which may be attached in satisfaction of the said costs.”

A counter-affidavit sworn by one Idris Tiamiyu was filed in reply. Paragraph 10 of the counter-affidavit specifically answered paragraph 6 of the affidavit when it said;

“That the learned Counsel in charge of this case Namse Eno, Esq. informed me, and I verily believe that the 3rd defendant could from the money paid to it by the 2nd defendant to the benefit of the plaintiff pay to the court the security for costs being demanded.”

The application was heard by Longe, J., and in a considered ruling, he held that

“It is therefore my humble finding that subject to what may turn up at the hearing of the substantive case, it is reasonable to hold that plaintiff has property within the courts jurisdiction and there is no need to give an order for security for costs against it.”

The learned Judge then dismissed the application.

The 3rd defendant was dissatisfied and filed a notice of appeal containing one ground of appeal against the decision to the Court of Appeal. The said ground reads;

“The learned trial Judge exercised his discretion wrongly and/or failed to exercise the same judicially by refusing to make the order for costs.

PARTICULARS

(a) Having regard to the provisions of the Exchange Control Act, the Acquisition of Lands by Aliens Edict and the Land use Act, it cannot be correct to say (as the learned Judge did) that the plaintiff owns interest in any property in Nigeria

(b) The plaintiff is suing in its own name and not by an attorney as claimed by the learned trial Judge.”

At this juncture it is necessary to refer to the ruling again and cull two vital observations made by the learned Judge. The 1st reads;

“The 2nd angle through which this matter can be further looked at is the pleadings already filed by both parties. The 3rd defendant has raised it in its affidavit. In paragraph 8 of the statement of claim, certain properties were listed as having been imported by the plaintiff into Nigeria for the 1st and 2nd defendants. Paragraph 6, 7 and 8 of the 2nd defendant’s statement of defence touch upon such the properties, not specifically that they were not so imported but only with regard to whether or not payments should be made by the defendants for them. That is not a complete denial yet that plaintiff never imported such properties into the country. Furthermore, Exhibit DA1 dated 3rd March, 1983 is a document prepared and signed by the Managing Director of the 2nd defendant, the document shows that the plaintiff has some properties on his land. Whether for himself or on behalf of 2nd defendant, the Managing Director has by that document admits (sic) plaintiff has some properties of valuable amount within Nigeria. This fact, I believe, cannot be hidden to the 3rd defendant, who has been acting as a middleman between the parties. Can one then say categorically that the plaintiff has no property in the country The answer is in the negative.”

The 2nd observation of the learned Judge reads;

“There is another proposition. It is that since plaintiff is suing by an attorney, the chance of recovering any cost against the plaintiff is not too remote. I cannot at present lay hand on an authority to support the proposition but I believe that the attorney having consented to sue for and on behalf of the foreign plaintiff is indirectly offering himself as a guarantor for any liability especially as to cost which may be awarded against the plaintiff. Thus, through him or by him any costs awarded could be ordered to be paid by him.”

After filing the notice of appeal, the third defendant by notice of motion moved the court for an order

“(i) directing that proceedings be stayed in this suit pending the determination of the appeal filed against the ruling of this Honourable Court given on the 16th October, 1986.

(ii) for such order or orders as this Honourable Court may deem fit to make.”

The motion was supported by affidavit evidence filed along with it and deposed to by Ashimiyu Oladele Adeniyi. Paragraph 3 of the affidavit states that;

“The 3rd defendant has appealed against the said dismissal. Attached herewith and marked “Exhibit A” is a copy of the notice of appeal.”

The learned Judge, Longe, J., heard the application and in a considered ruling dismissed it holding that

“(a) there is no proper appeal yet filed on the interlocutory decision;

(b) because on reading the application itself, it would not be in the interest of both parties to order a stay of proceedings.”

In other words, the learned Judge held that the notice of appeal is incompetent. Following the dismissal of his application for a stay of proceedings by the High Court, Longe, J., the appellant proceeded to the Court of Appeal and therein filed another motion for the same orders, i.e. an order

(i) “directing that proceedings be stayed in this suit in the lower court of first instance pending the determination of the appeal filed against the ruling of the Honourable Court given on the 16th of October, 1986;

(ii) for such further order or orders as this Honourable Court of Appeal may deem fit to make in the circumstances.”

Respondents’ counsel at the hearing of the application raised objection in limine to the hearing of the motion on the ground that there was no competent appeal pending.

The Court of Appeal (coram Ademola, Akpata and Babalakin, JJ.C.A.) heard arguments on the objection from counsel for the parties and gave a considered ruling upholding the objection on the ground that the application is incompetent and dismissed it for lack of merit. In his lead ruling (with which Ademola and Babalakin, JJ.C.A., concurred) Akpata, J.C.A., considered the cases of J.B. Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 2 N.W.L.R. (Part 23) 484 at 492 and Ifediorah v. Ume (1988) 2 N.W.L.R .. (Part 74) 5 at p.16 cited by counsel on the distinction between a ground of law simpliciter from a ground of mixed law and facts.

While the issue before the Court was whether the ground of appeal was one involving questions of pure law alone or one involving questions of mixed law and fact; the determination whether these questions arise from the ground is one that demands the exercise of interpretative jurisdiction of the court. The subsidiary question is whether the exercise of judicial discretion in the determination of the question involves consideration of the facts alone, the law alone or mixed law and fact. If a proper exercise of judicial discretion involves the consideration of all these questions, their failure to give consideration to either the questions of fact or questions of law tantamount to a wrong exercise of judicial discretion.

Akpata, J.C.A., examined the opinions expressed by Eso, J.S.C., in Ogbechie v. Onochie (supra) at pp. 491-492, the opinions expressed in Ifediorah v. Ume (supra) by Nnaemeka-Agu, J.S.C., Nnamani, J.S.C., Uwais, J.S.C., Belgore, J.S.C., and Wali, J.S.C., and concluded:

“It seems to me that it was the majority view of the panel that a complaint against the exercise of a court’s discretion is a question of mixed law and facts at the highest and not simply a question of law. Although Chief Williams cautioned that Ifediorah v. Ume should not be taken beyond its limits, the inference however, going by the decision in that case, is that a complaint against the exercise of discretion, is an exception to the generally accepted rule that where a ground relates to a matter of-misapplication of the law to admitted or proved facts, in is a ground of law. One would have thought that a complaint against an exercise of discretion based on accepted or admitted or proved facts would be a ground of law and not mixed law and facts. Until the Supreme Court has a rethinking on the matter, that appears to be the state of the law as at now.”

He then proceeded to dismiss the application. Learned Counsel for the appellant using this observation as a suitable ground brought this appeal to this Court.

The question before this Court involves the subsidiary question whether the observation of the learned Justice Akpata, J.C.A., flows from proper examination of the case of Ifediorah v. Ume and proper analysis of the opinions of each of the Justices of the Supreme Court who decided the case. More expressly, the grounds of appeal which are six in number reads:

“1. The court below erred in law in failing to observe that the decision of the Supreme Court in Ogbechie v. Onochie (1986) 2 N.W.L.R.. (Pt.23) 484 conflicts with the subsequent decision of the same court in Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt.74) 5 on the question whether or not an appeal complaining of the exercise of discretionary power by the trial court raises a question of law alone.

2. The court below erred and misdirected itself in law in not choosing to follow the very clear guidelines laid down by the Supreme Court in Ogbechie v. Onochie (supra) particularly since it was clear that the case was not cited to the court and was consequently overlooked in Ifediorah v. Ume. In addition, Ogbechie v. Onochie is consistent with Nafiu Rabiu v. The State and other cases which dealt with the same point whilst Ifediorah v. Ume appears to be a departure from those cases.
3. The court below erred in law, in taking into consideration the contents of the plaintiff’s letter dated 18/7/88 which clearly contained arguments and references to evidence going completely beyond his earlier submission to the court on the preliminary objection without giving the defendants the opportunity to deal with such additional arguments and evidence by relisting the matter for further argument in open court.
4. Further in the alternative to (iii) the court below erred in law in giving consideration to arguments on the merits of the ground of appeal on the basis of arguments and evidence to which their attention were directed by the plaintiff in his letter when the only arguments presented to the court by both sides in open court and in the defendant’s letter were limited only to the preliminary objection to the appeal.
5. The court below erred in law in failing to observe that the only question for it to decide on the arguments presented to it in open court on the preliminary objection of the plaintiff, was whether or not the ground of appeal raises issue of law alone. The further question as to whether or not the ground of appeal is worthy of argument will arise if that hurdle is overcome and the motion on notice for stay pending appeal comes up for bearing and determination.
6. The court below erred in law in failing to observe that at the stage which the proceedings had reached when the plaintiff raised his preliminary objection in respect of which they gave their ruling after hearing arguments, it was premature to rule that the 3rd defendant cannot possibly bring its complaints against the decision of the learned trial Judge not to make the order for security for costs within any of the lists approved by the Supreme Court for determining questions of law alone.”

The appellant formulated three questions as questions for determination in this appeal in his brief. These questions are;

(i) Whether there is any conflict in the ratio decidendi and other previous decision of the Supreme Court in Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt.74) 5 and Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt.23) 484 and if the answer to the question is in the affirmative, which of the decisions ought to be overruled.

(ii) In the light of the answer to question 1, is the sole ground of appeal in the court below a ground of law;

(iii) Whether, in considering their decision in the plaintiffs preliminary objection to the motion for stay, it was open to the Court of Appeal to consider further question whether it was possible for the third defendant to bring his complaint within the category of questions of “law alone.”

The main question for determination is straightforward. It is whether the sole ground of appeal is a ground of law. This question seemed to have been marginalised by the other two questions which deal mainly with the approach to the determination of the main question. These are

(1) whether there is a conflict in the decision between Ifediorah v. Ume (supra) and Ogbechie v. Onochie (supra)

(2) whether if there is, the conflict is irrelevant in as long as the appellant did not identify the conflict and did not call upon the court to overrule or depart from it.

I have studied the two cases and can find no conflict between the two. The various dicta of some of the Justices may give the appearance of conflict but on a proper examination, they are more instructive of the method of determining questions of law or mixed law and fact involved in a ground of appeal similar to the one in the instant appeal than ventilating conflict. It should however be observed that the ground of appeal set out in the notice of appeal filed in the High Court to initiate the appeal to the Court of Appeal was filed before the motion for stay of proceedings was filed. That ground, if I may repeat it here again reads;

“The learned trial Judge exercised his discretion wrongly and/or failed to exercise his discretion judicially by refusing to make the order for costs

Particulars

(a) Having regard to the provisions of the Exchange Control Act, The Acquisition of Lands by Aliens Edict and the Land Use Act, it cannot be correct to say (as the learned Judge did) that the plaintiffs own interest in any property in Nigeria

(b) The plaintiff is suing in its own name and not by an attorney as claimed by the learned trial Judge.

When, therefore, Eso, J.S.C., considered in Ogbechie v. Onochie (supra) ground 4 of the grounds of appeal which reads

“The Court of Appeal erred in law in not following the proper approach in the award of costs as laid down in numerous decision in the Supreme Court namely that the general rule is that the costs follow the event and that the court has unfettered discretion to award costs which discretion must be exercised judicially.”

as a ground of law, he was perfectly right and dealt with a ground totally different in content and phraseology from the ground under consideration. Similarly, when Croom Johnson, J., said in the Court of Appeal in the case of Dick v. Piller (1943) 1 K.B. 497 at 507 that:

“It has, I think, always been maintained that an exercise of judicial discretion on a wrong principle is appealable. To exercise it on wrong considerations or on wrong grounds or to ignore some of the right consideration, is in my judgment, to decide on wrong principles.”

he was giving, in my view, a correct statement of the law.

It however does not determine the question before this Court in this appeal which is whether when it is said that a Judge exercised his discretion wrongly the ground involves a question of law alone or a question of mixed law and fact more so when there is affidavit evidence to be considered when exercising the discretion.

Similarly, when it is alleged that the learned trial Judge failed to exercise his discretion judicially does the ground involve questions of law alone or questions of mixed law and fact In my view, there is no doubt that it involves questions of law but it also involves questions of fact. This is so in this case as there is conflicting affidavit evidence before the learned Judge. I will liken the ground to the familiar omnibus ground which reads that ‘the decision is against the weight of evidence’. This is different from exercising a discretion on wrong considerations or wrong grounds or to ignore some of the right considerations which amount to exercising judicial discretion on wrong principles.

If a Judge considers matters which are not before him and makes them the basis of the exercise of his discretion, he is exercising his discretion on wrong considerations. If there are facts by affidavit evidence before the Judge and he fails to evaluate and assess the facts before exercising his discretion, he has failed to exercise his discretion judicially.

On broad consideration of the ground filed which is the function of the court at this stage, it is obvious to me that the ground involves questions of mixed law and fact. Particular (b) of the Particulars in support of the ground involves a question of fact.

Since the ground involves questions of mixed law and fact, the constitutional requirement of leave under section 213(3) of the 1979 Constitution must be obtained before the right of appeal is exercisable. I now proceed to consider the dicta in Ogbechie v. Onochie (supra) and Ifediorah v. Ume (supra) alleged to be in conflict.

In Ifediorah v. Ume (1988) 2 N.W.L.R. (Part 74) 5, the High Court in the face of opposition from the plaintiffs made an order consolidating suits AA/1/76 with suit No. AA/19/77. The plaintiffs appealed to the Court of Appeal against the order on two grounds, ground 2 of which reads:

“In granting the order to consolidate the two suits AA/1/76 and AA/19/77, aforesaid in the circumstances of the case, the learned trial Judge exercised his discretion on wrong principles.”

Before the Court of Appeal, the defendants raised preliminary objection to the effect that the purported appeal against the order of consolidation is incompetent in that

“(1) an appeal does not lie from the said order; and

(2) that if the appeal does lie, the purported appeal is not properly before the court as no leave to appeal was obtained as required by sections 220(1)(b) and 221(1) of the 1979 Constitution.”

The Court of Appeal unanimously overruled the objection. The defendants then appealed to the Supreme Court against the decision against his preliminary objection. In support of ground 2 of the objection, he contended that none of the two grounds of appeal before the Court of Appeal was a ground of law and that appeal could lie only on those grounds with leave of the High Court or of the court of Appeal and as no leave was obtained, the appeal was incompetent.

The Supreme Court unanimously allowed the appeal following as relevant to this appeal the decisions in

Ojemen v. Momodu (1983) 3 S.C.173 at 207

Rabiu v. Kano State (1980) 8-11 S.C.130; (1982) 2 N.C.L.R.117

Ogbechie v. Onochie (1986) 3 S.C.54 at 56

Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718 at 744

I have already set out above ground 2 of the grounds of Appeal. Ground 1 of the grounds of appeal to the Court of Appeal without the particulars reads:

“The learned trial Judge erred in law in consolidating suit No.AA/1/76 in which the appellants are the plaintiffs, with No.AA/19/77 in which the respondents were plaintiffs, for the purpose of trial, in the face of the strong opposition of the appellants, and ought to have allowed each suit to be tried separately.”

Dealing with the issue whether either ground of appeal is a ground of law, Nnaemeka-Agu, J.S.C., delivering the lead judgment (Ifediorah v. Ume) said at p.15:

“Now, I cannot conclude that either ground is a ground of law merely because the appellants did or did not call it so in the ground of appeal. Ojemen v. Momodu II & Ors. (supra). I must have to thoroughly examine each ground to see whether it is a ground of law or fact. It appears to me that ground, taken together as I should do with its particulars involves a determination of a number of issues and in fact some of them contrary to the findings of the learned Judge. Such issues include the fact that the consolidation would prejudice the respondent’s case, that the parcels of land the respondents were claiming were not the same with those the appellants were claiming – quite contrary to the finding of the learned trial Judge that the same plans were being relied upon by both parties in each of the two cases. So also is their contention in particulars 1(c) and (d) that in their view the issues in the two cases were not the same. This is contrary to the finding of the learned Judge that common questions of law and of facts were raised. So taking ground 1 as a whole there are a number of important issues of fact that must have to be examined and decided. It is the law that such a ground is one of fact or at least of mixed law and fact. See this Ogbechie v. Onochie (supra) at p.491 – 492. See also the recent decision of this Court in Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 N.W.L.R. (Pt.67) 718 at p. 744. The inevitable conclusion I have reached is that ground 1 is one of fact or at least of mixed law and fact.

Ground 2 complains that the learned trial Judge exercised his discretion on wrong principles. I do not agree with the learned Counsel for the respondent that the exercise of the court’s discretion is a matter of law. I rather agree with the learned Counsel for the respondents that as the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case whether or not he exercised it rightly in any particular case is at least a question of mixed law and fact. Although the further submission of Mr. Egonu that the ground in any event lacks necessary particulars of the nature thereof if they were errors or misdirections in law as required by Order 3 Rule 2(2) of the Court of Appeal Rules 1981 is unanswerable. I do not think it is germane to the point under consideration. Be that as it may, I am satisfied that none of the two grounds of appeal before the Court of Appeal was a ground of law alone.”

Learned Counsel for the appellant contended that the above reason conflicts with the Ogbechie v. Onochie (supra) in the declaration that the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case, whether or not he exercised it rightly in any particular case is at least a question of fact or mixed law and fact.

It is my view that the learned Justice was explaining the reasoning process in the exercise of judicial discretion. The learned Justice has not said that a ground complaining that a judicial discretion has been exercised on wrong principles of law with particulars of the errors in law given and set out is a ground of mixed law and fact.

In all applications praying the court’s exercise of its discretion, they are invariably supported by sworn affidavit evidence setting out the facts on which the exercise of the court’s discretion can be based. If the applications are opposed and opposing facts are set out in the counter-affidavit issues of fact are therefore raised which must be resolved to enable the court decide whether to exercise the discretion in favour of the applicant or refuse to exercise the court’s discretion in his favour. The judicial exercise thus involves a consideration of all the issues of fact and the application of the proper rules of law.

The ratio decidendi in Ifediorah v. Ume (supra) is clear and the decision cannot be faulted having regard to the full reasons set out above given by my learned brother.

It is advisable for counsel to draw the attention of the court to the full reasons given and the ratio decidendi of a case when contending that it is erroneous in point of law. I hope that the habit of picking on a phrase out of con and using it as a weapon of attack against the correctness of the decision should be discouraged and discontinued as it is not in the interest of justice.

Ifediorah v. Ume (supra) has not departed from the decision in Ogbechie v. Onochie (supra). Rather, it has followed it and adopted it. In Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt.23) 484 at 491, Eso, J.S.C., dealing with the approach to the determination whether a ground of appeal is a ground of law or a ground of mixed law and fact or fact, said:

“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 or a misapplication 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. The issue of pure fact is easier to determine.”

In an article titled “Error of Law in Administrative Law” by C.T. Emery, a lecturer in Law in Durham University and Professor B. Smythe of the same University contained in Vol. 100 of the October 1984 issue of the Law Quarterly Review, to which Mr. Sofola had kindly directed our attention, the learned authors made the following postulations:

1. If the tribunal purports to find that particular event occurred although it is seized of no admissible evidence that the events did in fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal, in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.
3. If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal though correctly treating a statutory word or phrase as a legal term of art errs in elucidation of the word or phrase it is a question of law.
5. If the tribunal errs in its conclusion (that is in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error in law.
6. If in a case where conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found. In that event, the superior court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolutions. The inferior tribunal’s conclusions may be one of the possible resolutions, yet it may be a conclusion which the superior court (had it been seized of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior court with jurisdiction to correct only errors in law will not intervene.”

I think these postulates are illuminating. They accord with the previous practice of this court in examining the thorny issues of law and fact and I will accept them.

In my view, Eso, J.S.C., has correctly ventilated the approach and practice of this court to the resolution of the issue of deciding whether a ground of appeal involves questions of law alone or questions of mixed law and fact or facts alone.

In the light of the above guiding principles, the sole ground of appeal in this matter filed in the High Court cannot qualify as a ground involving questions of law alone. It involves questions of mixed law and fact and as such can only be filed with the leave of the High Court or Court of Appeal first applied for and obtained.

The appeal fails and is hereby dismissed. The decision of the Court of Appeal is hereby affirmed and the respondents are entitled to costs in this appeal fixed at N500.00.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C., and I entirely agree with his reasoning and conclusions.

The short comment I make here is merely by way of emphasis having regard to the problems often arising from the question ‘ground of law alone’ or ground of mixed law and fact’. I shall rely on the facts of this case as set down in the lead judgment.

The instant appeal is challenging a decision of the Court of Appeal which held the appeal to it by the appellants as incompetent on the ground that the only ground of appeal was not a ground of law alone but one of mixed law and fact requiring leave. The ground of appeal was in these terms:-

“(1) The learned trial Judge exercised his discretion wrongly and/or failed to exercise the same judicially by refusing to make the order for security for costs.

Particulars

(a) Having regard to the provisions of the Exchange Control Act, the Acquisition of Lands by Aliens Edict and the Land Use Act it cannot be correct to say (as the learned Justice did) that the plaintiff owns interest in any property in Nigeria.

(b) The plaintiff is suing in its own name and not “by an Attorney as claimed by the learned trial Judge.”

If the straight issue in this appeal had been whether this ground of appeal was one of mixed law and fact as held by the Court of Appeal, or one of law as contended by the appellants, it would have been decided on a narrow compass. The issue urged on the Court for a decision was the wider one of whether a complaint against an exercise of discretion is a question of law alone or one of mixed law and fact. It was contended that two decisions of this Court – Ogbechie and Ors. v Onochie and Ors. (1986) 2 N.W.L.R. Part 23,492 and Ifediorah v Umeh (1988) 2 N.W.L.R. Part 74 p.5 -are in conflict.

The first decision it was contended held that it was a question of law while the latter decision held it was a question of mixed law and fact.

“There is no doubt that the question whether a complaint on appeal raises questions of law alone or questions of mixed law and fact is a difficult one. Though this Court has dealt with the issue in several decisions, I am of the view that the test put forward by Eso, J.S.C., in Ogbechie (Supra) certainly takes care of the problem. There the learned Justice said at page 491.

“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 or a misapplication 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. The issue of pure facts is easier to determine.”

‘It seems to stand out that where facts are not in dispute, i.e. that they have either been proved or are admitted, and complaint is as to the application of the law to those facts then this is a question of law. Where the facts are in dispute and the issue of evaluation by the lower court arises before the application of the law, then this is a matter of mixed law and fact. But these principles, when what is being challenged is exercise of discretion, cannot be elicited in vacuo. That was why in Ume (Supra) I said at page 17;

“On ground 2, I am inclined to agree with Mr. Okafor that principles mentioned therein could only have been principles of law. The complaint would then be that the learned trial Judge exercised his discretion on wrong principles of law. To examine the manner in which the learned trial Judge exercised his discretion, one has necessarily to look at the facts and circumstances. It is against that background that one determines whether the right principles of law have been applied.”

It seems to me that this is inevitable since these cases of exercise of discretion often involve the filing of affidavits. Looking at the facts and circumstances, it is easy to see whether the facts are not in dispute and the question is as to the application of the law to them (law alone), or the facts are in dispute and there is complaint about evaluation of facts by the lower court as well as the application of the law. (mixed law and fact). In effect each case has to be taken on its own facts.

Against this background, I see no conflict in the two decisions of this Court mentioned above. Each, in my view, was correctly decided on its peculiar facts. The facts and circumstances in Ume (Supra) can be seen from that portion of the lead judgment where Nnaemeka-Agu, J.S.C., said;

“I must have to thoroughly examine each ground to see whether it is a ground of law or of fact. It appears to me that ground 1 taken together, as I should, with its particulars involves a determination of a number of issues and in fact some of them contrary to the findings of the learned Judge. Such issues include the fact that the consolidation would prejudice the respondent’s case, that the parcels of land the respondents were claiming were not the same with those the appellants were claiming – quite contrary to the findings of the learned trial Judge that the same plans were being relied upon by both parties in each of the two cases. So also is their contention in particular 1(c) and (d) that in their view the issue in the two cases were not the same. This is contrary to the finding of the learned trial Judge that common questions of law and of fact were raised. So taking ground I as a whole there are a number of important issues of fact which must have to be examined and decided. It is the law that such a ground is one of fact or at least of mixed law and fact. See on this Ogbechie v. Onochie (Supra) at pages 491-492, See also the recent decision of this Court in Paul Nwadike and Ors. v Cletus Ibekwe and Ors. (1987) 4 N.W.L.R. Part 67, 718 at 744.”

As regards Ogbechie (Supra), it has to be remembered that 3 of the 4 grounds of appeal were disallowed by this Court. The only ground accepted as a ground of law read;

“The Court of Appeal erred in law in not following the proper approach in the award of costs as laid down in numerous decisions of the Supreme Court, namely, that the general rule is that the costs follow the event and that the Court has unfettered discretion to award costs which discretion must be exercised judicially.”

Particulars

(a) The Court of Appeal held that the trial court did not fail to exercise its discretion judicially.

(b) The award of N1000 was in respect of a land case which lasted from 23/8/76 until the action was dismissed on 31/3/78, and was, after an appeal, sent back for a retrial and finally decided on 18/4/83.

(c) Six witnesses were called for the defence including a Surveyor, and the cost of producing a Survey plan was incurred by the defendants.

(d) The plaintiffs counsel left the issue of costs to the discretion of the court.”

It is clear that the complaint here was against the application of the law to the accepted facts or against misunderstanding of the law by the lower tribunal.

Now dealing with the only ground of appeal that was before the Court of Appeal, one has to give it a thorough examination. The ground of appeal as framed certainly created problems. “Exercised his discretion wrongly” is certainly wide to include facts and law. However, when taken together with particular (a), I am of the view that the complaint appears to be related to an alleged wrong application of the various laws mentioned therein to the issue of property as found by the learned trial Judge. The same cannot be said of particular (b). It seems to me that there is a complaint against a finding by the learned trial Judge. There is therefore a complaint against the evaluation of that issue by the Judge. To examine that would, on the principles discussed above, raise issues of mixed law and fact.

I therefore agree that the ground of appeal as framed did not raise questions of law alone. It was therefore incompetent as found by the Court of Appeal. This appeal is dismissed. I abide by all the orders made by Obaseki, J .S.C., including the order as to costs.

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Other Citation: (1988) LCN/2400(SC)