Global West Vessel Specialist Nigeria Limited V. Nigeria Nlg Limited & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division, delivered on 11th August, 2014 in Appeal No. CA/L/849B/2013 wherein the appeal was, inter alia, struck-out.

The facts of this case are as follows: The 1st respondent was the plaintiff at the trial Court. It had commenced an action by an originating Summons before the Federal High Court in suit No.FHC/C/L/CS/847/2013. The said Summons was filed along with an affidavit dated 17th June, 2013 against the 2nd respondent and the appellant(hereinafter referred to as AGF) and Global West respectively, as the 1st and 2nd defendants. The Plaintiff had then sought the Interpretation of the followings:

1. Nigeria LNG Act;
2. The Nigerian Maritime Administration and Safety Agency (NIMASA) Act;
3. The Coastal and Inland Shipping (Cabotage) Act, Cap. C51 LFN, 2004;
4. The Marine Environmental (Sea Protection Levy) Regulations, 2012 and;
5. The Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations, 2012.

The plaintiff also challenged the blockage of its vessels and the prevention

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of same from accessing the Bonny Channel by a vessel with men in Military uniform on board, identified as representatives of Global West etc.

The plaintiff further filed a Motion exparte along with a Notice of Motion dated 17th June, 2013 seeking various interim and interlocutory injunctive reliefs respectively against the Federal Government of Nigeria and its agents and Global West. The trial Court on 18th June, 2013 granted all the interim reliefs sought.

The 2nd defendant – Global West filed a Notice of Preliminary Objection dated 24th June, 2013, challenging the jurisdiction of the trial Court to entertain the suit on grounds of misjoinder and non-joinder of a necessary party and consequently sought an order of the trial Court to strike out the suit for lack of jurisdiction and or strike out its name from the suit for mis joinder. Global West also filed an application praying the trial Court to discharge the order of interim injunction earlier made against it.

The trial Court on Friday 12th July, 2013 dismissed the 2nd defendant’s Preliminary Objection together with the application seeking to discharge the Order of interim injunction granted against it.

2nd defendant was dissatisfied with the ruling of the trial

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Federal High Court, hence it appealed by the Notice of Appeal dated 23rd July, 2013 to the Court below.

By a notice of Preliminary Objection, dated 28th March, 2014, the plaintiff now 1st respondent objected to the competence of the aforementioned Notice of Appeal on the grounds, inter-alia, that – leave of the trial Court or of the Court below was not sought and obtained before the said Notice of Appeal was filed in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

On 18th June, 2014, the Court below heard the substantive appeal along with arguments on the Preliminary Objection and in its considered judgment delivered on 11th August upheld the said objection to the effect that the Notice of Appeal filed by the appellant was incompetent having been filed without leave of either the trial Court or of the Court below. The Court below consequently struck out the Notice of Appeal and thereby affirmed the ruling of the trial Court.

Further dissatisfied with the judgment of the Court below, led to the instant appeal on eight grounds vide the Notice of Appeal filed on 22nd August, 2014.

The appellant and 1st respondent filed and exchanged briefs of argument.

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Appellant’s brief of argument filed on 8th April, 2015 was deemed properly filed and served on 15th March, 2016. The 1st respondent filed its brief of argument within time on 19th April, 2016. It is noteworthy that the 2nd respondent – Attorney General of the Federation did not file any brief of argument or any other process in this appeal.

When this appeal came up for hearing on 24th October, 2016, both the 1st and 2nd respondents were represented by counsel but there was no legal representation for the appellant. Upon enquiry, the Court was duly informed that there was proof of service of hearing notice to the counsel for the appellant. Appellant having duly filed and served its brief of argument, same was deemed argued.

Mr. Akoni, learned senior counsel for the 1st respondent identified his brief of argument. He adopted and relied on same to urge the Court to dismiss the appeal for want of merit.

Mr. Nliam, learned counsel for the 2nd respondent once again announced to the Court that he did not and does not intend to file any brief of argument for the 2nd respondent. Accordingly, the appellant’s brief of argument settled by Selekeowei,

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Larry, SAN was duly considered.

The following two issues were distilled by the appellant for the determination of the appeal in its brief of argument:

Issues for Determination

1. Whether the Court of appeal, Lagos Division was right in holding that the appellant’s Notice of appeal before it, filed without leave of Court was incompetent thereby proceeding to strike out same on account that the grounds of appeal contained therein are not grounds of law alone but of mixed law and fact (Distilled from grounds 4,5,6,7 and 8 of the notice of appeal).
2. Whether the Court of Appeal, Lagos Division was right in dismissing the appellant’s appeal and affirming the ruling of the trial Court without proffering any reason for its decision, after withholding the 1st respondent’s preliminary objection and consequently striking out the Notice of appeal. (Distilled from grounds 1, 2 and 3 of the Notice of Appeal).

The issues were argued seriatim in the appellant’s brief of argument.

On the first issue, it was contended that the Court below was in error when it struck out the appellant’s Notice of Appeal before it as incompetent, as no leave of Court

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was first sought and obtained before same and filed, for the reason that the grounds contained therein are not of pure law but of mixed law and fact.

Learned senior counsel for the appellant referred to Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and contended that an appeal from a decision of the Federal High Court to the Court of appeal is as of right where the grounds of appeal raise questions of law alone. In other words, he submitted that in such a case, a specific right of appeal is conferred by the Constitution devoid of any requirement of leave to appeal notwithstanding, that the appeal is against an interlocutory decision. He referred to the four (4) grounds of appeal contained in the notice of appeal in question, filed on 23rd July, 2013 before the Court below. He submitted that no leave was required to file the said notice of appeal contrary to the findings of the Court below.

Based on the decisions of this Court in couple of cases, learned counsel submitted that the way out on this line of distinction between a ground of appeal simpliciter on law and mixed law and fact, is to carefully

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examine the grounds of appeal along with the particulars attending to them, to determine whether they reveal a misunderstanding by the lower Court of the law or a misapplication of the law to facts already proved or undisputed or admitted. He cited, Nwadike v. Ibekwe (1987) 4 NWLR (PT. 67) 718, K.T.P Ltd v. GAH (Nig) Ltd (2005) 13 NWLR (Pt. 943) 680; Iwueke v. I.B.C. (2005) 17 NWLR (PT. 955) 447.

Learned senior counsel contended that a careful examination of the four grounds of appeal in the vexed notice of appeal before the lower Court world reveal that the grounds center on the misunderstanding or misapplication of the law of agency to the proved, established, accepted, undisputed or admitted fact that the appellant was sued as an agent to a disclosed principal – NIMASA which was never joined as a party. He contended further that the 1st respondent, by its own admission in its own admission in its pleadings vide Paragraph 5 of the supporting affidavit to its originating summons sued the appellant as an agent of NIMASA for acts, levies, taxes etc. done or demanded by NIMASA from the 1st respondent in the exercise of the statutory powers of NIMASA under

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several extant legislations without making NIMASA a party to the suit.

The appellant referred to the 1st respondent’s preliminary objection of 25th June, 2013, wherein it moved the trial Court to strike out the suit for want of jurisdiction and or strike out the appellant’s name from the suit for misjoinder and set aside the Form 48 issued against it. The appellant did not file any counter affidavit and so did not join issues with the 1st respondent. He submitted that it was the decision of the trial Court, which overruled and dismissed the objection that form the basis for the four grounds of appeal in the vexed Notice of Appeal before the Court below.

Learned senior counsel submitted that the said grounds of appeal in the vexed Notice of Appeal being such that allege misunderstanding and/or misapplication of the law cannot be highly struck down as the lower Court did as being of mixed law and fact, and therefore requiring leave to be competent.

He contended that even on a more global view, the objection culminating in the ruling appealed against therein is one that raises the question of jurisdiction against the trial Court, and therefore indicative

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of raising grounds of pure law. He urged the Court to resolve the issue against 1st respondents and hold that the Notice of appeal is competent as it requires no leave to be competent.

On the second issue, the appellant contended that the Court below erred when it dismissed the appellant’s appeal without giving reasons for its decision, and that the Court below in so doing violated its right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and abdicated its judicial responsibility under Section 294 (1) of the same Constitution. The appellant’s learned senior counsel submitted that the appellant’s grouse is that the Court below heard the substantive appeal on the merits alongside the respondent’s preliminary objection which it upheld and proceeded to affirm the ruling of the trial Court without proffering any reason.

Learned senior counsel contended that a Court has a duty to decide the merit of a case upon the issues canvassed before it. The reason is that, being an intermediate appellate Court, its decision on jurisdiction could be reversed on appeal to this Court, in which case if all other issues had been decided, at least, in the alternative, it

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would prevent the necessity of the Supreme Court having to remit the appeal to the Court below for it to resolve other issues originally arising in the appeal. He relied on several cases, including Elelu-Habeeb v. A. G. of the Federation (2012) 13 NWLR (Pt. 1318) 423; Tanko v. UBA Plc (2010) 17 NWLR (pt. 1221) 80; Obisi v. Chief Naval Staff (2004) 11 NWLR (pt. 885) 482; Okotie-Eboh v. Manager (2004) 18 NWLR (pt. 905) 242.

Learned senior counsel referred to the conclusion of the judgment of the Court below whereby, it dismissed the appellant’s appeal and affirmed the ruling of the trial Court. He contended that the Court below did not give any reason for its decision to dismiss the appeal before it which it had already struck out in the preceding paragraph of the judgment. He submitted that a decision of a Court, without the reason for the same is in law, no decision at all. He submitted further that the substance of a Court judgment is the ratio decidendi but not in the mere passing remarks. He contended that every Court whose decision is

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subject to appeal is required to state the reason(s) for its decision to enable the parties know how the Court arrived a its decision. He relied on Abubakar Vs. Nasamu (NO.1) (2012) 17 NWLR (Pt.1330) 523; Ogboru Vs. Uduaghan (2012) 11 NWLR (Pt.1311) 357; PDP Vs Okorocha (2012) 15 NWLR (Pt.1323) 205; Oyeyemi Vs. lrewole L.G.(1993)1 NWLR (pt.270) 462.

Learned senior counsel contended that the Court below abdicated its duty to consider the substantive issues placed before it in the appeal despite having heard the appeal contemporaneously with the preliminary objection. He further contended that despite declining to consider the appeal on the merit, the Court below proceeded to affirm the ruling of the trial Court, without proferring reason for the decision. He submitted that the decision of the Court below dismissing the appeal and affirming the trial Court’s decision is a nullity and he urged the Court to so hold.

The appellant referred to Section 22 of the Supreme Court Act, Caps.15, Laws of the Federation of Nigeria, 2004. He contended that the Supreme Court is empowered to exercise full jurisdiction over a case and deal with it in the

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same way a trial Court or the Court below would have done. He however contended further that before this Court would invoke its said omnibus powers, it must ensure that the followings are considered:-

(a) The availability before it of all necessary materials on which to consider the request of the party;

(b) The length of time, between the disposal of the action in the Court below and the hearing of the appeal at the supreme Court and

(c) The interest of justice to eliminate further delay in the hearing of the matter and minimize the hardship of the party.

He relied on Odedo Vs. INEC (2008) 17 NWLR (Pt.1117) 554; Obi Vs. INEC (2007) 11 NWLR (Pt.1046) 564; Ladoja Vs. INEC (2007) 12 NWLR (pt.1047) 119; Yusuf Vs. Obasanjo (2003) 16 NWLR (Pt.847)554.

Learned senior counsel refereed to the two issues the appellant considered to be in controversy in the appeal before the Court below and urges the Court to determine same and make appropriate orders. He referred to the documents in the record already transmitted and contended that since the substantive matter is still pending before the Federal High Court, Lagos, it is in the interest of justice that this Court steps into the shoes of the Court below and deal with the real

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issues earlier identified rather than remitting same to the Court below. He urged the Court to invoke Section 22 of the Supreme Court and resolve the real issues put before the Court below which it failed to consider.

From the eight grounds of appeal filed by the appellant, the 1st respondent distilled the following two issues as it considered germane to the just determination of this appeal, to wit:-

“1. Whether from the facts and circumstances of this case, the Court below, was right in upholding the 1st respondent’s Preliminary Objection and consequently striking out the appellant’s Notice of Appeal which was filed without the statutorily required leave of Court (Distilled from grounds 4, 5, 6, 7 and 8 of the Notice of Appeal)

2. Whether the Court below was right in affirming the ruling of the trial Court dismissing the appellant’s preliminary objection after finding that the appellant’s Notice of Appeal against the ruling was incompetent (Distilled from grounds 1, 2 and 3 of the Notice of Appeal)”

Learned senior counsel for the 1st respondent took the issues seriatum.

On issue No 1 he contended that it is now settled beyond

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equivocation that by a combined reading of Section 241 and 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria, and Section 14 of the Court of Appeal Act, appeals against interlocutory decisions of a High Court mandatorily require the leave of the High Court or of the Court below to be first sought and obtained before filing the Notice of Appeal, in so far as the grounds of appeal are not based on grounds of flaw alone. In other words, obtaining a leave of Court is a desideration to the successful exercise of a right of appeal whenever the decision complained against is an interlocutory decision and grounds of appeal are of mixed law and facts.

He contended further that there is no dispute that the appellant did not first seek and obtain leave of either the High Court or the Court below before it filed its Notice of Appeal to the Court below and that parties agreed on the point that the vexed decision of the trial Court delivered on 12th July, 2013 is an interlocutory rather than a final decision as same did not determine the rights of the parties in the 1st respondent’s suit. The point of divergence between the parties is the

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question whether the grounds of appeal before the Court below were grounds of mixed law and facts, thus requiring leave of the trial Court or of the Court below or grounds of law alone.

Learned senior counsel contended that a Notice of Appeal is an originating process which activates the jurisdiction of an appellate Court. He relied on PMB Ltd v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 262; Nigeria Navy v. Labayo (2012) 17 NWLR (PT. 1328) 56 at 81.

He submitted that the principles that should guide a Court in its quest for the proper determination of whether a ground of appeal is ground of law, a ground of mixed law and facts or simply a ground of fact has been laid down by this Court in Ogbechie & Ors v. Onochie & Ors (1986) 2 NWLR (PT.23) 484 at 491.

Learned senior counsel contended that in arguing that the grounds of appeal before the Court below were grounds of law alone, the appellant set out the grounds of appeal and contended that they were grounds of law alone. He submitted that the approach by the appellant is misleading and contravenes the directives of this Court. He relied on Kisdhadadi v. Sarkin Noma (2007) 13 NWLR (pt. 1052) 510 at 522.

He referred to the Notice of Appeal filed by the appellant at

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that Court below at pages 1551-1555 of the record of appeal and considered each of the four grounds of appeal raised in the said Notice of Appeal. He submitted that all the questions necessarily involve evaluation of facts and hence the grounds of appeal are grounds of fact or at best of mixed law and facts and he urged the Court to so hold. He submitted that where an appellant ought to have sought leave before filing his notice of appeal and no such leave was sought, the appeal is incompetent and liable to be struck out. He relied on Abubakar v. Waziri & Ors (2008) NWLR (PT. 1108) 507; Coker v. UBA Plc (1997) 2 NWLR (Pt. 490) 641; Njemanze v. Njemanze (2013) 8 NWLR (PT. 1356) 376; Garuba & Ors v. Omokhodion & Ors (2011) 6 NMLR 143 AT 165.

Learned senior counsel submitted that by a combined reading of the extant provisions of Section 241 (2) and 242 Constitution of the Federal Republic of Nigeria, 1999 and Section 14 of the Court of Appeal Act, and on the strength of the judicial authorities cited, the Court is urged to resolve the issue against the appellant; uphold the finding of the Court below that the appellant’s Notice of Appeal

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having been filed without the requisite leave of Court, is consequentially incompetent and was correctly struck out.

On issue No. 2 formulated by the 1st respondent, the learned senior counsel contended that the effect of a combined consideration of grounds 1, 2 and 3 of the appellant’s Notice of Appeal against the judgment of the Court below will reveal that the appellant’s grouse with the judgment revolves around the question of whether the Court below was right in affirming the ruling of the trial Court dismissing the appellant’s preliminary objection to the competence of the substantive suit. Learned senior counsel contended that in arguing this issue, the appellant has made heavy weather of the fact that the Court below dismissed the appellant’s appeal after striking out of Notice of Appeal. He submitted that this is a non- issue.

He referred to the judgment of the Court below and to the extent that the Court had already struck out the Notice of Appeal for incompetence, he submitted that there was nothing left to dismiss and the order of striking out remains the only extant order

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of the Court below. He submitted further, that, indeed, the law is that where a dismissal order is made in circumstances where the action cannot be said to have been determined on the merits; such dismissal would be legally construed as a mere striking out and not a dismissal on the merits. He relied on Panalpina World Transport v. Olandeen International & Ors (2010) 12 SC (PT. 111) 30 at 49.

The respondent contended that assuming without conceding that the Court below was wrong to dismiss the appellant’s appeal and affirm the trial Court’s ruling rather than merely striking out the appeal for incompetence, the 1st respondent submitted that there is a mere error or slip which is not substantial enough to warrant the Court reversing the entire judgment of the Court below. He submitted further that it is not every error of a Court that has the effect of leading to a reversal of the judgment by an appellate Court. For the Court to set aside or reverse the decision of the Court below, such wrong complained about must have occasioned a serious miscarriage of justice against the aggrieved party. He relied on Bayol v. Ahemba (1994) 10 NWLR (PT. 623) 381; Pan Atlantic

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Shipping & Trans v. Rhein Mass GMBH (1997) 3 NWLR (pt. 493) 248.

Learned senior counsel submitted that even if this Court find that the Court below ought not to have made the order dismissing the appeal, having come to the right conclusion that the appellant’s Notice of appeal was incompetent, the proper order for this Court to make is not to allow this appeal, but to substitute the order of dismissal with an order striking out. He relied on Road Transport Employers Association of Nigeria v. National Union of Road Transport Workers (1992) NWLR (pt. 224) 381.

On the contention of the appellant that this Court ought to invoke the provisions of Section 22 of the Supreme Court Act and deal with the issues in the appeal that was filed at the Court below rather than remitting same to the Court below for determination, learned senior counsel referred to the issues distilled by the appellant and 1st respondent respectively and went to town with his copious submissions on the appeal before the Court below and finally urged the Court to dismiss the appeal in its entirety and uphold the ruling of the Court below dismissing the appellant’s appeal and upholding the trial Court’s dismissal of the appellant’s preliminary objection.

As I stated earlier, the 2nd respondent did not file any brief of

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argument in this appeal. Even on the date this appeal was heard, learned counsel for the 2nd respondent announced to the Court that he did not file any process and did not intend to file any process in the appeal. As a result, this appeal shall be resolved or determined based on the processes filed by the appellant and 1st respondent only.

I have carefully examined the two issues formulated by both the appellant and 1st respondent respectively and I have come to the conclusion that their respective issues having been duly formulated from the same grounds of appeal filed by the appellant and saying the same thing though slightly differently couched, I shall utilize the two issues of the appellant to determine this appeal.

Issue No. 1

The issue is whether the Court below was right in holding that the appellant’s Notice of Appeal before it, filed without leave of Court was incompetent thereby proceeding to strike out same on account that the grounds of appeal contained therein are not grounds of law alone but of mixed law and fact.

As I earlier stated, the appellant herein was also the appellant at the Court below and a defendant

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before the trial Federal High Court, Lagos division. It had filed an appeal before the Court below against the decision of the trial Court, but the said appeal was decided by the Court below upon the preliminary objection raised by the 1st respondent. That had led to the instant appeal.

There is no doubt that appellate jurisdiction of both the Court below and this Court are provided for in the Constitution.

Subject to the provisions of the Constitution, the Court of appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decision of a Court Martial or other Tribunal as may be prescribed by an Act of the National Assembly. See; Section 240 of the Constitution of Federal Republic of Nigeria, 1999 (as amended)

However, with regard to appeals as of right from the Federal or State High Courts, Section 241 provides inter alia, as follows:

“Section 241(1),

An appeal

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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:-

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;

(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;

But subject to the provision of Section 241 of the Constitution above, an appeal shall lie from decisions of the Federal High Court or a State High Court to the Court of Appeal with the leave of the Federal High Court or that of States High Court or the Court of Appeal. See Section 242(1) of the 1999 Constitution of Federal Republic of Nigeria (as amended).

Yet by law, appeals against interlocutory decisions of a High Court require the leave of the High Court or of the Court of Appeal to be first sought and obtained before the filing of the Notice of Appeal, in particular, where the grounds are not based on grounds of law alone. See Section 14 of the Court of Appeal Act.

In the

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instant matter, certain facts are not in dispute and are very clear from doubt, on the records. They are:

1. The fact that the appeal in question to the Court below was an interlocutory decision of the Federal High Court.
2. The appellant neither sought nor obtained any leave of either the Federal High Court or the Court below before the Notice of appeal was filed.

What is therefore being contested is whether or not there was need to or rather whether the grounds of appeal are not of law alone that will not require that leave of Court be first sought and obtained before the filling of the Notice of Appeal. In other words, the point of divergence between the parties is the question whether the grounds of appeal filed by the appellant before the Court below were grounds of mixed law and facts which require leave of either the trial Federal High Court or that of the Court below or ground of law alone.

The appellant had contended strongly that there was no need to have sought leave of Court before the appellant filed the Notice of Appeal in the case that was put before the Court below. But the 1st respondent thought differently, that with the grounds of appeal contained in the Notice of Appeal, the appellant required and ought to have obtained leave of either the trial Federal High Court or the Court below. And not having so

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obtained the said required leave, it considered the said Notice of Appeal incompetent and liable to be struck out.

However, it is trite law that in order to see whether or not the alleged grounds of appeal filed with the Notice of Appeal before the Court below are grounds of mixed law and facts thus requiring leave of Court before being filed, there is need to state the said grounds and their respective particulars. They are as follows:

Grounds of Appeal:

1. The learned trial judge erred in when his Lordship held that the Appellant – a purported agent of NIMASA itself was not joined as a party.

Particulars

(i) By its originating summons, the 1st respondent sought the determination of questions relating to the interpretation of certain provisions of some statues relating to NIMASA’s supervisory functions over it. (1st Respondent)

(ii) In the affidavit in support of the originating summons, the 1st respondent described the appellant as an agent of NIMASA.

(iii) All actions complained of in the said affidavit were said to have been carried out by NIMASA – but that certain equipment of appellant were used by

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NIMASA in carrying out the actions.

(iv) NIMASA was not joined as a party to the action but an ex-parte order of injunction was obtained against the appellant in a bid to bind NIMASA.

2. The learned trial judge erred in law when his Lordship held that, the appellant was properly joined as a party since there were allegations of wrong doing in some paragraphs of the affidavit in support of the originating summons.

Particulars

(i) It is the substantive claim/reliefs sought, rather than mere mention or narration of a person’s action in an affidavit that is required to establish a cause of action against the person.

(ii) The crux of the 1st Respondent’s action before the Honourable Court was the interpretation of some provisions of certain law relating to its obligations and the supervisory functions of NIMASA – the purported principal of the appellant who was not joined as a party.

(iii) There was no specific relief sought against the appellant in the questions proffered for resolutions or the reliefs sought.

(iv) It is clear that the appellant, being a private body, is in no position to ensure the compliance

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with or execution of any provision of law relating to statutory bodies such as NIMASA.

3. The learned trial judge erred in law when his Lordship refused to decline jurisdiction to entertain the suit when the proper parties necessary for proper resolution of the questions were not before it.

Particulars

(i) One of the prerequisites for a Court to assume jurisdiction is the presence of necessary parties before it. Bello v. INEC (2010) 3 NWLR (pt. 1196) 341 at 410.

(ii) The 1st respondent’s originating summons primarily sought the interpretation of laws relating to the exercise of NIMASA’s supervisory functions over it which enable it to demand for taxes and levies and other payments.

(iii) NIMASA was not joined as a party to the action.

(iv) The Attorney General was made the 1st defendant to the action and its joinder was predicated upon a conception that it was NIMASA’s principal.

(v) The appellant herein was joined as 2nd defendant to the action and described as an agent of NIMASA.

4. The learned trial judge erred in law when his Lordship held that non compliance with the pre-action notice to NIMASA

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under Section 53(2) of the NIMASA Act, did not rob the Court of jurisdiction to entertain the substantive suit which was brought against appellant, as and agent of NIMASA, because the suit raised claims in tort which could be proceeded with against principal and agent whether jointly or severally.

Particulars

(i) The distinction between action and other suits is not a valid exemption to compliance with the provisions of S.53 (2) of the NIMASA Act.

(ii) The substantive action was not for redress in tort, but one for interpretation of statutory provision.

(iii) The jurisdiction of Court over ancillary relies (if any) is lost where there is no jurisdiction to entertain the principal claim

(iv) Pre-action notice in Section 53 (2) of NIMASA Act, prohibits the institution of a suit against NIMASA, its Directors Board members, and employees without first giving 30 days notice to the Agency with indication of the cause of action and reliefs sought.

(v)Failure to give pre-action notice, where affected party objects, robs the Court of jurisdiction.

(vi) The appellant having been sued as agent of NIMASA is entitled to raise the point of objection.

It is trite law, that it is difficult to distinguish a ground of law from a

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ground of fact. However, the grounds of appeal in any case concerned must be thoroughly examined to see whether the grounds reveal a misunderstanding by the lower Court or tribunal of the law or a misapplication of the law to the facts already proved or admitted, in that case, it would be simply question of law or one that would require questioning the evaluation of facts by the lower Court or tribunal before the application of the law, in which case it would amount to question of mixed law and fact. But where the appeal against the findings made by the Court below, then the question is on facts and then leave of Court will be required before filing the Notice of appeal. See J.B. Ogbechie & Ors v. Gabriel Onochie & Ors (1986) 1 SC 54; (1986) NWLR (pt. 23) 484.

It is equally trite law and constitutionally required that while appeal to the Court below from the trial Court on the issue of law is as of right, an appeal purely on the facts or mixed law and facts requires leaves of the Court from where appeal lies or the Court to which the appeal lies.

It had been held that in determining the nature of a ground of appeal, the ground and its particulars must be read togrther. It is only by reading the ground as a

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whole that the complaint of the appellant about the judgment on appeal will be apparent . See Nnanyelugo L.A. Orakosim & Ors v. Francis Ifeanyichukwu Menkiti (2001) 9 NWLR (PT 719) 529; (2001) 5 SC (PT. 1) 72.

There is no doubt, and it is trite law that a ground of appeal does not become a ground of law merely or simply because it is so described in the Notice of Appeal. Indeed, the ground of appeal itself with its particulars must clearly show that it is a ground of law for it to require no leave of Court before being filed.

This Court is in several decisions had long laid down the general principles to guide the Court and parties in determining whether a particular ground of appeal is one of law, or fact or mixed law and facts. The following are three ways to determine a question of law:

(a) A question the Court is bound to answer in accordance with a rule of law. That is, the question is already determined and answered by the law.

(b) That which explains what the law is. An appeal on a question of law in this sense means an appeal in which the question for argument and determination is what the true law is, on a certain matter, for instance, a question relating to the construction of a statutory

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provision.

(c) All questions within the judicial powers of a judge to determine and not that for a jury, for instance, the interpretation of documents. In other words, any ground of appeal which alleges misunderstanding of the lower Court of the law or misapplication of the law to the facts already proved, admitted or undisputed, or a misdirection, is purely a ground of law.

See Ogbechie Ors v. Onochie & Ors (supra); Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Metal Construction (West African) Ltd v. Migliore (1990) 1 NWLR (Pt. 126) 229; ACB Plc v. Obimiami Brick & Stone (1993) 5 NWLR (Pt. 294) 399. General Electric Co. v. Hancy A. Akande & Ors (2010) 18 NWLR (pt. 1225) 596.

However, where the facts are in dispute and the issue of evaluation of the facts by the lower or trial Court arises before the application of the law, this will constitute a matter of mixed law and fact. See; UBA Ltd v. Stahlbau GMBH & Co. KG (1989); Briggs v. Okoye (2005) 4 SC 89 at 94.

As I had earlier stated in this judgment, the decision of the trial Court being appealed was not a final decision but interlocutory. Furthermore, it is

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not being undisputed that the appellant neither sought nor obtained leave of either the trial Federal High Court or that of the Court below. But to the latter, the appellant had argued that no leave was required to file the Notice of Appeal being challenged, the four grounds being grounds of law alone.

I have carefully perused the vexed grounds of appeal with their particulars. There is no doubt that grounds 1, 2 and 3 of the Notice of appeal are talking about issue of proper and necessary parties in the action before the trial Federal High Court.

The issue of who is a proper or necessary party to be joined in an action depends on the evidence to be adduced before the Court or rather the facts of the case.

It has long been held that proper parties are those who though not interested in the plaintiff’s claim, are made parties for some good reasons, for example, in an action instituted to rescind a contract, any person who was active or concurring in the matters which gave the plaintiff the right to rescind, is a proper party to the action. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question

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which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green v. Chief (DR) E. T. Dublin Green (1987) NWLR (pt. 61) 481 (1987) LPELR SC206/1986; Amon v. Raphael Tuck & Cons (1956) 1 WB 357; Re Vandervills Trust (1971) A.C. 812; Re Vandervelle (1969) 3 All ER 497.

It is admitted that there were allegations of wrong doings couple of paragraphs of the affidavit in support of the originating summons. Therefore, whether or not proper parties were before the trial Court and whether there was proper evaluation of the affidavit evidence to warrant the decision taken by the trial judge will be a question of mixed law and facts.

Now to ground 4 of the Notice of Appeal. This ground when read with the particulars as it should be read, shows that the issue of pre-action notice to NIMASA under Section 53(2) of the NIMASA Act cannot be unless and until the question of proper parties is resolved. In other words, the issue of non compliance with he requirement of pre-action notice does not arise without the resolution of the necessity of its being a party who was required to be before the Court. In the same vein, whether or not the substantive

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suit of the 1st respondent before trial Court which was brought against the appellants as an agent of NIMASA, is a suit that raised claims in tort which could be proceeded with against principal and agent is a question of mixed law and fact. In the result, it is clear that none of the four grounds of appeal raised in the vexed Notice of Appeal filed by the appellant is a pure ground of law. Indeed, they are all grounds of mixed law and facts which the law says cannot be filed without the leave of either the trial Court or the Court below.

In the final analysis, the appellant not having shown that leave of either the trial Federal High Court, Lagos or the Court of Appeal, Lagos division was duly obtained before the Notice of appeal dated 23rd July, 2013 against the interlocutory decision of the trial Court was filed, the said Notice of appeal was incompetent and deserve to be struck out. Accordingly, the Court below was right to have held that the said Notice of appeal was incompetent and properly struck out.

Having found that the vexed Notice of appeal filed by the appellant which was challenged by the 1st respondent was incompetent, leave not having been obtained to file same and was appropriately struck out, I do not consider it necessary to further consider the second issue raised by the appellant. In any event, once a Notice of Appeal is adjudged incompetent and struck

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out, there was nothing left with the appeal.

In the circumstance, and without any further ado, this appeal is lacking in merit and should be dismissed. Appeal is accordingly dismissed.

The decision of the Court below delivered on 11th August, 2014 by which the appellant’s Notice of appeal filed before the Court below was struck out is affirmed.

Parties are to bear their respective costs.

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SC.544/2014