Ikko Kashadadi V Ingila Sarkin Noma (2007)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C
This matter started from the Upper Area Court No.1, Minna. That was in 1995 and in suit No.UAC/MN/CVF/203/95. It was a claim of title over a farmland by the plaintiff/respondent. The defendant/appellant denied the respondent’s title. He said that he borrowed the farmland from Yeko who he said owned the farmland.
The Upper Area Court gave a judgment in favour of the defendant/appellant. The court did not find the case of the plaintiff/respondent proved. The Court said at page 8 of the record:
“Having carefully studied the evidence, of the both parties squarely and placed the testimonies of each party on the scale of justice this court found out that the evidence of the plaintiff is not strong enough to grant him the title of the land he is praying for. Instead the evidence of the defendant out-weigh that of the plaintiff coupled with the fact that it was the defendant who told (sic) the possession of the land prior to the filing.”
On appeal to the High Court, that court allowed the appeal. The learned appellate Judge gave judgment to the respondent. The Court of Appeal upheld the decision of the High Court and dismissed the appeal.
The appellant has come to this court. He formulated three issues for determination. The respondent formulated two issues for determination. The respondent has raised a preliminary objection on all the four grounds of appeal. The crux of the objection is that the ground of appeal, being grounds of mixed law and fact, needed leave of court. The argument of counsel for the respondent is at pages 4 to 7.
Learned counsel for the respondent, Mr. Ibrahim Isiyaku, submitted that although ground 1 alleges error of law, the particulars of error relates to facts adduced in evidence, that is, the plaintiff did not adduce enough evidence of facts to support the judgment in his favour. The alleged failure, learned counsel argued, is therefore entangled with the evidence of facts adduced. He also argued that error No. (b) in the particulars of error is vague.
He submitted on ground 2 that it is vague and offends the provisions of Order 8 rule 2(3) and (4) of the Supreme Court Rules.
No issue can be made out of a ground that is vague and the effect is that it will be struck out. He cited Ayinla v. Adigun (1986) 3 NWLR (Pt.30) 511 at 520 and Ejowhome v. Edok-Eter Ltd. (1986) 5 NWLR (Pt.39) 1 at 16. He also submitted that the ground is one of mixed law and fact, as this Court must of necessity consider the facts adduced in evidence before considering whether there was proper evaluation of those facts.
Taking ground 3, learned counsel submitted that the ground does not amount to an error of law but a finding based on the facts adduced in evidence. Whether or not there was such evidence of facts to support the finding of the Court of Appeal that the plaintiff had established his claim is a question of fact, or at worst, one of mixed law and facts but definitely not one of law alone, counsel contended.
On ground 4, learned counsel submitted that whether or not there was evidence in support of the declaration in favour of the appellant was a question of fact. He argued that the ground involves mixed law and fact.
In dealing with the law, learned counsel submitted that an appeal does not lie as of right where a ground of appeal raises question of fact alone, or as in his case, question of mixed law and facts. He cited section 233(3) of the 1999 Constitution and the case of Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299 at 324. Relying on UBA v. GMBH (1989) 3 NWLR (Pt.110) 374 at 410, learned counsel contended that mere assertion, as in this appeal, that a ground of appeal is based on “error of law” does not make it one if the error stated in the particulars is no more than one of fact or mixed law and fact. He urged the court to strike out all the grounds as well as the appeal.
Learned counsel for the appellant submitted in his reply brief that ground 1 is purely on points of law only. He was silent on ground 2, 3 and 4,
I should read the notice of appeal, avoiding the introduction and commencing from the grounds of appeal:
“3. Ground of Appeal
3.1 The court below erred in law for failure to properly consider the issues raised by the appellant on appeal to it.
Particulars of Error
(a) The appellant submitted that the plaintiff respondent even by his plaint and the evidence he adduced in support did not adduce enough evidence to warrant the judgment being given, in his favour by the court below.
(b) The appellant raised the issue that the respondent failed to what is essential to the declaration of any land in his favour.
(c) The plaintiffs/respondents claim before the court below amounts to no claim at all and should not have been entertained or should have been dismissed.
Particulars of Error
3.2 The lower court found that the respondent before it admitted that at worst he as the plaintiff at the upper area court ought to have been non-suited and that the appellant knew before this court conceded that a retrial ought to have been ordered.
3.3. The lower court erred in law to have held that the respondent had established his claim.
Particulars of Error
The learned Judge of the court below held that the plaintiff at the trial Court had established his claim by traditional evidence, evidence of an adjoining neighbour.
3.4 The learned court erred in law for failure to declare the land in favour of the appellant/defendant in view of the appellant’s counter claim.
Particulars of Error
The appellant insisted that the land does not belong to the respondent because he didn’t know him on the land on which he is in possession and that he only borrowed Yeko.”
Learned counsel for the respondent correctly submitted that mere assertion on the part of an appellant that a ground of appeal is based on “error of law”, does not make it one if the error stated in the particulars is no more than one of fact or mixed law and fact. As a matter of law, there is nothing sacrosanct on the nomenclature “error of law” in a notice of appeal because an appellant will in most cases, and understandably, so name a ground, with all the sentiments and sensitivity for his case. It is left to the respondent to carefully remove the chaff from the grain and see whether the ground of appeal involves law not tainted with facts, which makes it wear some vogue of a mixed grill.
In determining whether a ground of appeal is one of fact, mixed law and facts or facts simpliciter, the court should go further than the ground of appeal as couched by the appeal and move down to the particulars of error numerically tabulated thereunder. This is because it is the total package of the ground of appeal and the particulars therein that complete the exercise leading to the conclusion whether a ground of appeal is one of exclusive law or one of mixed law and fact or one of facts simpliciter. It is the experience in quite a number of cases that while the ground of appeal deals with pure and unadulterated law, the particulars that edify the grounds move to the stream of mixed law and fact, and in some cases to facts and facts only. And so there is nothing magical in the expression “error of law”, to the extent that it tells the whole story of the ground of appeal as one dealing with law and law alone or only.
I must say that there are instances where the drawing line between law and mixed law and fact is thin and difficult to make. But our adjectival law requires the courts to bring out the distinction as it has so much value and strength in the determination of the appeal. One way of discovering the dichotomy is to examine very closely the particulars of error, whether they sing the same chorus of error of law with the ground of appeal or they sing not quite the same chorus in the sense that they add some mixed law or facts simpliciter.
I should now examine the four grounds of appeal. One common expression in the particulars of error in grounds 1, 2 and 3 is evidence. While particular of error (a) uses the word “evidence”, ground 2 also uses the word “evidence”. The only particular of error in ground 3 uses the words “traditional evidence.” Evidence, whether under statute, common law or customary law, is presented to the court on facts by witnesses. The facts could be oral or documentary. In such a situation, it cannot be said that a ground of appeal is exclusively law because the evidence, the probative material received by the court to persuade it as to the truth or veracity of the matter is factual. Accordingly, it is my view that grounds 1, 2 and 3 involve mixed law and facts.
Ground 4 complains that the Court of Appeal was wrong in failing to declare that the land belonged to the appellant in the light of the counter claim. This ground of appeal involves the proof of the counter claim and that can only be done by evidence and evidence can only be led and admissible in court by facts.
Section 213(3) of the 1979 Constitution provides that subject to the provisions of section 213(2), an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with leave of the Federal Court of Appeal or the Supreme Court. Section 213(2) provides for matters in which appeal from the Court of Appeal lie as of right to the Supreme Court. The matter involved in this appeal is not one of such matters. Therefore, appeal lies with leave of the Court of Appeal or the Supreme Court.
By the Constitution, the Supreme Court cannot hear an appeal on grounds of mixed law and fact unless leave of the court or the Court of Appeal is obtained. See Oluwole v. LSDC (1983) 5 SC 1; Faleye v. Olapo (1987) 3 NWLR (Pt.64) 186. So too appeal on facts only. See Adejumo v. State (1983) 5 SC 24; Owhotemu-Kowo v. State (1998) 5 SC 17; State v. Omeh (1983) 5 SC 20.
Where an appeal requires the leave of court and the leave is not sought and obtained, the appeal is incompetent and will be struck out. See Russel v. Russel (1987) 2 NWLR (Pt.57) 437. This is because a court of competent jurisdiction has no jurisdiction to hear an incompetent appeal.
In sum, this appeal is incompetent and this court lacks the jurisdiction to go into the merits. Accordingly, the appeal is struck out. I award N 10,000.00 against the appellant in favour of the respondent.
SC.263/2000
