Globestar Engineering Company (Nigeria) Limited V. Malle Holdings Limited (1999)
LawGlobal-Hub Lead Judgment Report
BA’ABA, J.C.A.
By a motion on Notice dated 8/2/99, and filed in this Court the same day, the Defendant/Appellant, sought for the following relief:-
“An order granting stay of execution of that part of the order of the Honourahle High Court delivered on 27th November, 1998 particularly the order asking the Defendant/Appellant to deposit 2/3 of US$1,800,000.00 or its Naira equivalent into the High Court Registry within two days pending the hearing and determination of the appeal against the ruling and order to the Court of Appeal.”When this motion was served on the plaintiff/respondent/respondent, before the date fixed for the hearing of the motion, the plaintiff/respondent/respondent, filed a notice of preliminary objection to the hearing of the motion on notice. The preliminary objection was dated 22/2/99 and filed in this Court on the same date. The objection reads:
“TAKE NOTICE that this Honourable Appellate Court will be moved on … the … day of … 1999 at the hour of 9 O’clock or so soon thereafter as counsel can be heard on behalf of the Plaintiff/Respondent/Objector by way of Argument upon a Preliminary OBJECTION to the COMPETENCY of the Defendant/Appellant/Applicant’s PURPORTED APPEAL filed in the lower court on the 30th November, 1998, and attached to the Defendant/Appellant/Applicant’s SUPPORTING AFFIDAVIT and marked as EXHIBIT “D” as well as the PROPRIETY of the ENTERTAINMENT and/or the COMPETENCE of the Defendant/Appellant/Applicant’s MOTION for STAY of EXECUTION by this Honourable Appellate Court while the said Defendant/Appellant/Applicant remains in Contempt of the ORDERS of the LOWER COURT by REFUSING and/or NEGLECTING to pay the sum of US$1,200,000.00 (One Million, Two Hundred Thousand U.S. Dollars) into Court as SECURITY for COST being an ORDER of CONDITIONAL STAY of EXECUTION of the lower court’s order dated 16th November, 1998, the Defendant/Appellant/Applicant having been ADJUDGED as about to ABSCOND with its ASSETS from JURISDICTION in 2(two) SUCCESSIVE RULINGS of the lower Court dated 16th and 27th November, 1998 respectively and FURTHER TAKE NOTICE that the GROUNDS of this PRELIMINARY OBJECTION are as set out in the SCHEDULE hereunder.”
“SCHEDULE
- The PURPORTED NOTICE OF APPEAL FILED on the 30th November, 1998 against the UNDOUBTED INTERLOCUTORY RULING of the lower court dated 27th November, 1998, which raises QUESTIONS of PURE FACTS and/or MIXED LAW and FACT is incompetent because it was filed without PRIOR LEAVE sought and OBTAINED by the Defendant/Appellant/Applicant either in the lower court or for that matter from this Honourable Appellate Court.
- After the said order of the CONDITIONAL STAY of EXECUTION dated 27th November, 1998, of its earlier RULING dated 16th November, 1998 was made in FAVOUR OF THE Defendant/Appellant/Applicant; the Defendant/Appellant/Applicant had 15 (fifteen) days from that 27th November, 1998, it was dissatisfied with the said order of CONDITIONAL STAY of EXECUTION to make a SIMILAR APPLICATION to this Honourable Court for BETTER and more FAVOURABLE TERMS rather than file its FUNDAMENTALLY DEFECTIVE and INCURABLY INCOMPETENT MOTION for STAY of EXECUTION dated 1st of December, 1998. When the lower court had become FUNCTUS OFFICIO since 27th November, 1998, after its said RULING of the same date.
- In view of the GROUND (2) SUPRA, this APPLICATION is HOPELESSLY OUT OF TIME and therefore in the ABSENCE of PRIOR LEAVE sought and obtained for EXTENSION of TIME as MONUMENTALLY INCOMPETENT and a FLAGRANT ABUSE of the PROCESS of this HONOURABLE COURT which is INCURABLY BAD.
- The Defendant/Appellant/Applicant’s motion ought not be entertained by this Honourable Appellate Court while the Defendant/Appellant/Applicant is in CONTEMPT SUBSISTING and/or VALID ORDERS of the HONOURABLE lower court made in FAVOUR of the Defendant/Appellant/Applicant on the 27th November, 1998, varying its earlier ORDER made on the 16th November, 1998, both ORDERS having been EXHIBITED to the Defendant/Appellant/Applicant’s SUPPORTING AFFIDAVIT and marked as EXHIBITS “A” & “B” respectively.”
The Defendant/Appellant/Applicant, who are now the respondent in the preliminary objection did not file any document in respect of the objection. Moving the preliminary objection on 19/4/99 Mr. O. M. Odje, learned counsel for the plaintiff/respondent/respondent, commenced his submission, by informing the court that the plaintiff/respondent/respondent, is raising a preliminary objection to the hearing of the Defendant/Appellant/Applicant’s application because the appeal on which it is based is incompetent. He informed the court that on 16/11/98, Warri High Court, ordered the appellant (applicant) to deposit $1.8 Million U.S. Dollars as security for costs to abide by the eventual judgment of court, having been satisfied that defendant was about to abscond from the jurisdiction of the court. Learned counsel for the respondent, further stated that the applicant was dissatisfied with the decision contained in Exhibit “B” so he filed his Notice of appeal Exhibit “C” on 31/11/98, which the learned counsel for respondent, described as “a purported appeal”. That the applicant filed a motion for stay of execution and leave to appeal against its ruling of the 16/11/98. In its order granting conditional stay ordered the applicants to deposit $1.2 Million U.S. Dollars pending the determination of the appeal. The learned counsel submitted that the order of the trial court granting conditional stay is not appealable, contending that what the applicant should do is to come to this Court for better conditions instead of appealing against the order.
In support of his submission, learned counsel referred the court to the case of U.B.N. v. Fajebe Foods (1994) 5 NWLR (Pt.344) 325 at 352. On his 2nd ground of objection, learned counsel for the respondent, submitted that the applicant being in contempt of the lower court by refusing to comply with the order of the lower court cannot be heard on this application for stay, citing Elf Marketing (Nig.) Ltd. v. Oyeneyin and Sons Ltd. (1995) 7 NWLR (Pt.407) 371 at 379, Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt.382) 128 at 132-134 and Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129 at 132-134. In support of his submission to the said ground of objection. The 3rd ground of objection of the respondent is that the grounds of appeal on the Notice of Appeal are grounds of facts or mixed law and facts for which leave to appeal is required.
Learned counsel for the respondent, pointed out that by virtue of the provisions of Section 25 of the Court of Appeal Act, an appeal must be filed within 14 days and referred the court to the case of Consolidated Oil (Nig.) Ltd. v. Sumeroidd (Nig.) Ltd. (1998) 8 NWLR (Pt.561) 184 at 191 – 192.
Learned counsel for the respondent concluded by urging the court to hold that there is no valid appeal, uphold his preliminary objection and strike out the application.
Respondent, Okpoko, learned Senior Advocate of Nigeria, for the defendant/appellant/applicant, submitted that the objection on the three grounds lack merit and ought to be overruled. He said Exhibit “8”, attached to the application is the ruling of the lower court of 27/11/98, That the ruling embodied the decision of the court against which the applicant is entitled to appeal, under section 220 of the 1979 of the Constitution, Learned Senior Advocate further submitted that the contention of the learned counsel for the respondent that the applicant ought to have come to this Court under Order 3, rule 3 of the Rules of this Court is not correct and read out the provisions of Order 3 rule 1(3). He pointed out that “refusal” is a condition precedent under Order 3 rule 3(3) for coming before the Court of Appeal within 15 days of the refusal and referred the court to page 7 of the ruling Exhibit “B”. Learned Senior Advocate, argued that Order 3 rule 3(3) does not apply to the present case. He pointed out that the amount being deposited is not a judgment debt but amount to be deposited as security for costs. That the application was granted conditionally. He said the decision of the lower court granting conditional stay of the order is a decision as defined under section 277 of the Constitution of the Federal Republic of Nigeria. Learned senior counsel said, the order that payment of deposit of 1.2 million dollars to be paid within 2 days is also a decision of the court and that part of order being a decision, the applicant has the right to Appeal against it. He explained that in this case the appellant has appealed by his Notice of Appeal Exhibit “D” and having appealed the applicant has the right to apply for stay of the order of the lower court. He further submitted that since the lower court has refused the application, the applicant is before this Court by virtue of Order 3 rule 3(3) of the Rules of this Court. Learned Senior Advocate contended that the two grounds of appeal are grounds of law which do not require leave and nothing about nullity was contained in the two grounds of appeal.
The learned Senior Advocate submitted on the grounds of appeal that the fact that the respondent conceded that the grounds of appeal are grounds of fact or mixed law and facts means that the right of appeal has been conceded. He said the record shows clearly that the parties were not heard on the orders made by the lower court and they are not the orders sought by the applicant. Learned Senior Advocate contended that by virtue of the provision of Section 220(1)(b)(c) of 1979 Constitution, the applicant has the right of appeal as of right and referred the court to the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484. On the ground of contempt, learned Senior Advocate submitted that applicant does not have to comply with the order of the lower court before coming to the Court of Appeal on appeal asking for stay and referred the court to the cases of Rastico Nig. Ltd. v. Societe Generale De Surveillance (1990) 6 NWLR (Pt.158) 608 at 615 – 616; Incar (Nig.) Plc. & Anor v. Bolex Enterprises Nig. Ltd. (1996) 6 NWLR (Pt.454) 318. He finally urged the court to dismiss the preliminary objection. I think it is trite law that Rules of court are Rules of procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction conferred aliunde. This point was clearly brought out by Brett, F. J. in Ogunremi & Another v. Adeniyi Dada: Asiyanbi & Others (1962) 2 SCNLR 417; (1962) 1 All NLR 663 at 671. See also Brett, M. R. in Cropper v. Smith (1883) 24 Ch. D. 305. Now the jurisdiction – the legal capacity or legal jurisdiction – to grant leave to appeal on grounds of fact or mixed law and fact was conferred on the Court of Appeal not by Supreme Court Rules 1985 but by Section 213(3) of the Constitution as amended, I must have recourse to section 220(1)(b)(c) of the 1979 Constitution of the Federal Republic of Nigeria relied upon by the learned Senior Advocate of Nigeria, which he submitted gives the applicant the right to appeal against the ruling of the court delivered on 27/11/98 granting the applicant a conditional stay of execution being a final decision. The section reads:-
“Section 220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in following cases –
(a) a final decisions in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution.”
Section 277 of the 1979 Constitution of the Federal Republic of Nigeria, as amended, defines, “decisions,” as follows:-
“decision” means, in relation to a court, any determination of the court and includes judgment, decree, order, conviction, sentence or recommendation.”
It is not disputed that the applicant’s Notice of Appeal, Exhibit “D” dated 30/11/98, is an appeal against the ruling of Warri High Court, delivered on 27/11/98, Exhibit “8”, is a court order and final decision, Order 3 rule 3(3) of the Court of Appeal Rules, preferred and relied upon by the learned counsel for the respondent in his submission that the order, granting conditional appeal is not appealable, reads-
“Order 3 rule 3(3) where an application has been refused by the court below, no application for a similar purpose may be made to the court within fifteen days after the day of the refusal.”
It does not appear to me that the provision of Order 3 rule 3(3) of the Rules of this Court, can interfere with the right of the applicant to appeal as clearly set out under section 220(1)(a)(b)(c) of the 1979 Constitution, In the case of U.B.N Ltd. v. Fajebe Foods (1994)5 NWLR (Pt.344) 325 at 339, delivering the lead judgment of this Court, my learned brother, Salami, J.C.A. inter alia, held,
“Pausing here I propose to consider and resolve the objection raised by the learned counsel for respondents. On the competence of the grounds of appeal or some of them, the learned counsel for the respondents failed to analyse any of the grounds with a view to showing that they are incompetent. In spite of this observation of mine, I have examined the grounds of appeal set out in Notice of appeal dated 26 July, 1993, and they appear to me prima facie competent for the purpose of this Court id est the Court of Appeal. I say for the purpose of the Court of Appeal, in the circumstances of this case, because appeal lies to this Court from final decisions of the High Court as, a court of first instance by virtue of Section 220(1) of the 1979 Constitution of the Federal Republic of Nigeria, as of right irrespective of the nature of the grounds of appeal. I have in the light of this provision of the Constitution examined all the grounds of appeal and they are of mixed law and facts for which no leave is required to canvass them in this Court. The learned counsel for the respondent may be on a firmer ground if such grounds of appeal are directed to a decision of this Court, without leave of either this Court nor of Supreme Court being first sought and obtained, on a further appeal to Supreme Court.”
The recent Supreme Court decision in the case of Ecoconsult Limited v. Pancho Villa Ltd. (1999) 1 NWLR (Pt. 588) 507 at 518 cited to this Court by the learned counsel for the respondent does not appear to have extended the application of the amendment, affected to Section 213(3) of the 1979 Constitution, regarding interlocutory matters, coming to this Court. The Section reads:-
“3. Subject to the provision of subsection (2) of this section, an appeal shall lie from the decision of Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court, Notwithstanding the provisions of subsection (2) of this section, no appeal shall lie to the Supreme Court from any decision of the Court of Appeal in respect of interlocutory decision.”
I am therefore unable lo agree with the contention of the learned counsel for the respondent that the applicant cannot appeal against the interlocutory decision of the Warri High Court, which granted a conditional stay of execution as the amendment does not affect interlocutory appeals from the High Court to this Court. I hold the view that the applicant is entitled under the provisions of the Constitution stated in this Ruling to appeal as he did against the Ruling of the Warri High Court. This ground of objection therefore fails and is hereby dismissed. The learned counsel for the respondent, relied on the Supreme Court decision in Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt.382) 128 at 140-143, on his submission that the applicant in this appeal are in contempt for failing to comply with the conditional order of stay of execution of the Warri High Court and for that reason this Court ought not to have granted the indulgence in their application. At page 143 of Osula (supra), Wali, JSC, delivering the leading ruling, had this to say, “The facts referred to above are very revealing in that the applicants knew that an appeal was prevailing against the judgment of the High Court when they proceeded to perfect the assignments of the landed properties referred to in Exhibits 01 and 02 respectively. This is a clear contravention of and non-compliance with the order of the Court of Appeal contained in its judgment dated 11th December, 1992. Although, the applicants are exercising their constitutional right of appeal, they are well aware that there are subsisting orders against them made by the Court of Appeal in favour of the respondents to this application, and if they, in transgression of orders, went outside them or any one of them, then they are not exercising the undoubted right of appeal given them by the Constitution. See Vaswani v. Savalakh (1972) 12 SC 77. The affidavit evidence shows that the applicants are acting in contravention of the Court of Appeal orders. When they proceeded to assign the landed properties in Exhibits 01 and 02 to UTC Nigeria Ltd. and Saidi Hotel Ltd. respectively. It is the duty of the courts to protect and ensure that orders lawfully made are not rendered useless or nugatory by the action and conduct of the parties. See Governor of Lagos State v. Ojukwe (1986) 3 NWLR (Pt.26) 39 and Obeya Memorial Specialist Hospital v. A.G. of the Federation (1987) 3 NWLR (Pt. 60) 325, I wish to emphasize here that the judgment of the Court of Appeal and the orders contained therein are still subsisting. The appeal before this Court, there is no order staying or suspending the orders of the Court of Appeal, therefore, the Applicants are no doubt in contempt of the said judgment by their acts and conduct. A person who is in contempt of a subsisting order is not entitled to be granted court’s discretion to enable him continue with the breach. As long as the applicants continue in their contempt of disobeying the orders contained in the judgment of the Court of Appeal, this Court will not exercise its discretionary power in their favour. See: First African Trust Bank Ltd. & Anor v. Basil O. Ezegbu & Anor (1992) 9 NWLR (Pt. 264) 132 and Hadkenson v. Hadkenson (1952) CA 285.”
The Supreme Court dismissed the application for stay of execution and interlocutory injunction because the applicants were in contempt of the judgment and orders of the Court of Appeal as clearly stated above. It is settled law that this Court is bound by the decision of the Supreme Court in Lawal Osula (supra), a person in contempt should not benefit from the discretionary powers of the court. The facts in Lawal Osula (supra) are clearly distinguished from the facts in the present case before this Court. While there is contravention of the judgment and orders of the Court of Appeal in Lawal Osula as revealed by the affidavit evidence, there is no such contravention of a judgment and/or orders of a court by the applicants in the case in question. It should be noted that in the present case, there is no judgment; the order of the Warri High Court for conditional stay of execution on the applicant to deposit $1.2 million US dollars within two days from the date of the order is an order for security for costs. It cannot be said that the appeal against the order of the court in the exercise of the applicant’s constitutional rights is a disobedience. There are exceptions to the law of contempt and happily the issue has been answered by the Supreme Court in the case of Mobil Oil (Nig,) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129 at 143-145, where the court had this to say:-
“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. “A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it … it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void. Whether it was regulator, irregular. That they should come in the court and not take upon themselves to determine such a question; that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.” It is pertinent at this stage to state that the rules embodied in the law of contempt of court are intended to uphold and ensure the effective administration of justice. As Lord Simon said in A-G v. Times Newspapers Ltd. (1974) AC 173 at pg. 315, they are the means by which the law vindicates the public interest in due administration of justice. The law does not exist, as the phrase “contempt of court” might misleadingly suggest to protect the personal dignity of the judiciary nor does it exist to protect the private rights of parties or litigants. In the case of Johnson v. Grant (1923) SC 789 at p.790 Lord President Clyde remarked thus:
“The phrase ‘contempt of court’ does not in the least describe the true nature of the class of offence with which we are here concerned… The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice … It is not the dignity of the Court which is offended – a party and misleading view of the issues involved – it is the fundamental supremacy of the law which is challenged.”
The general rule is that it is the duty of those so enjoined to strictly observe the terms of an injunction. In Spokes v. Banbury Board of Health. (1865) LR 1 Esq., Wood V-C state as follows at p.48 thereof”…that the simple and only view is, that an order must be obeyed and that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter and anyone who does not obey it to the letter is guilty of committing wilful breach of it…” In A-G v. Times Newspapers Ltd., (supra) Diplock LJ observed as follows: on page 307 thereof:-
“Contempt of court” is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.”
Traditionally, contempts are classified as being either criminal or civil. A civil contempt basically comprises the failure to comply with an order of court. The rules of civil contempt like those of criminal contempt are concerned to uphold effective administration of justice, A person who has committed a civil contempt by disobeying a court may be subject to the rule that a party in contempt cannot be heard or take proceedings in the same cause until he had purged his contempt. See The Military Governor of Lagos State v. Chief Emeka Odumegwu Ojukwu (1986) 1 NWLR (Pt. 18) 621; Obem Memorial Hospital v. A-G of the Federation (1987) 3 NWLR (Pt. 60) 325; Odugwo v. Odogwu (1992) 2 NWLR (Pt.225) 539; F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt. 2(4) 132 and Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt.382) 128.
Chief Williams, learned Senior Advocate, has cited the following cases to show that there are exceptions to the rule which debars contemnor from being heard by the court whose order has been disobeyed – Hadkinson v. Hadkinson (supra) Price v. Price (1962) NSWR 819, First African Trust Bank & Anor v. Ezegbu & Anor. (1992) 9 NWLR (Pt.264) 132 (supra) per Karibi-Whyte, JSC, Rastico (Nig.) Ltd. v. SGS (1990) 6 NWLR (Pt.158) 608 and Hang and Anor v. Bello & Anor (1900) 6 NWLR (Pt.150) 671.
Now, in Hadkinson’s case (supra) Denning LJ (as he then was) explained the rule, on page 298 thereof, as follows:
“…I am of the opinion that the fact that a party to a case has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that as long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown while it should not he removed.”
At page 145 paragraphs F-H. Uwais JSC (as he then was) delivering the leading judgment of the Court concluded thus:-
“Finally, in my opinion, the court has always the discretion whether or not to permit a party in contempt to be heard on some further application by him in the same suit, balancing the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged against the need to do justice between the parties in the particular circumstances of the case- See J (HD v. J(AM)(1980) 1 All ER 156 at 161. Consequently, the Court of Appeal exercised its discretion properly in refusing to hear the application for Stay of execution brought by the defendants/applicants. This does not and should not of course affect the hearing of the appeal pending before the Court of Appeal since the defendants/applicants have the constitutional right to appeal against the order and at least one of the exceptions to the rule aforementioned applies to the appeal. See Bettinson v. Bettinson (1965) Ch. 465: 1 All ER 102.”
It is clear from the foregoing that an appeal against the order as in this case, is one of the exception to the law of contempt. Where a person is appealing against a matter to which he had suffered a defeat and asked for a stay of execution pending the determination of the appeal, he would not be liable in contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending the appeal. See Huang & Ors v. Bello & Ors. (1900) 6 NWLR (Pt.159) 671. Rastica Nig. Ltd. v. SCS (1000) 6 NWLR (Pt.158) 608.
In view of the foregoing, I hold that the applicant is not in contempt.
Arguing his 3rd ground of objection, learned counsel for the respondent, attacked the grounds of appeal filed by appellant/applicant which he contended are incompetent as according to him are grounds of facts on mixed law and facts for which leave of the court is required. The two grounds of appeal referred to are contained in Exhibit “D” attached to the motion paper dated 8/2/99 and are as follows:-
i. The learned trial Judge erred in law and exceeded its jurisdiction in ordering the Appellant to deposit 2/3 of the sum of US$1,800,000.00 or its naira equivalent within 2 days when:
(a) Neither party prayed the court for such relief.
(b) The order amounted to granting relief not before the court.
ii. The learned trial Judge erred against the principle of fair hearing and/or as provided in the Constitution of Federal Republic of Nigeria when the court suo motu ordered the Appellant to deposit 2/3 of the sum of US$1,800,000.00 or its naira equivalent within 2 days,
PARTICULARS OF ERROR
There was no application for such order.
The Appellant was neither heard nor given opportunity to be heard before the order was made.”
The Supreme Court of Nigeria, in the case of Ogbechie v. Onuchie (1986) 2 NWLR (Pt.23) 484 at 491-493, comprehensively provides the guide for distinguishing grounds of law and grounds of fact or mixed law and fact.
‘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 Lecture in Law in Durham University and Professor B. Smythe of the Same University, contained in Volume 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
(i) If the tribunal purports to find that particular event occurred although it is seised 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.
(ii) If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that that statutory wording hears its ordinary meaning- it is a question of law.
(iii) 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.
(iv) If the tribunal though correctly treating a statutory word or phrase as a legal term of art errs in elucidation of the words or phrase – it is a question of law.
(v) If the tribunal errs in its conclusion (that is, in applying the law to the facts) in a case where this process required the skill of trained lawyer. It is error in law.
(vi) If, in a case where a 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 resolution. The inferior tribunal’s conclusion may be one of the possible resolutions; yet it may be a conclusion which the superior court (had it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not art in law. The matter is one of degree; and a superior court with jurisdiction to correct only errors of law will not intervene.”
When a ground of appeal questioned the quantum of the trial court’s award or damage as affirmed by the court below on the ground that the trial court had taken into consideration extraneous factors without supporting evidence clearly raised issues of mixed law and fact. The court in effect was being invited under that ground of appeal to investigate the existence or otherwise of certain facts upon which the award of damages to respondents was allegedly based. Such a ground of appeal without doubt, is a ground of mixed law and fact. So too, a ground of appeal, which challenges the finding of fact made by the court below or involves issues of law and fact can only be validly argued with the leave of either the Court of Appeal or Supreme Court. See Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257 at 267; C.R.S.N. Corp v. Oni (1995) 1 NWLR (Pt.371) 210 at 285.
Applying the guide provided by the Supreme Court and other authorities cited in this ruling, I hold that the two grounds of appeal contained in Exhibit “D” are grounds of law for which no leave is required. As I earlier stated in this ruling, appeal against a final decision as in this case does not require leave even where the ground is of fact or mixed law and fact consequently, the 3rd ground of objection of the learned counsel for the respondent also fails.
In the course of arguing the preliminary objection, learned counsel for the respondent argued that since the applicant is by his ground of appeal saying the order of the Warri High Court is a nullity, the option open to the applicant is to apply to the lower court to get the order set aside. I think where a party has several options of seeking remedy, the choice of the option is that of the party. With respect to the learned counsel for the respondent. I do not think mere allegation that an act is a nullity automatically makes the act a nullity without being so declared by a court of competent jurisdiction. In the result, the preliminary objection on all the grounds fails and is hereby dismissed with costs assessed at N1,000.00 in favour of the applicant against the respondent.
Other Citations: (1999)LCN/0532(CA)
