Harrison Welli & Anor V Charles Okechukwu & Ors (1985)

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G. KARIBI WHYTE, J.S.C. 

This appeal was heard at Enugu on the 26th March, 1985. The appeal was on a majority decision of 3:2 struck out on the preliminary objection raised by Mr. R.A. Ogunwole, Counsel to the Respondents, that appellants having not obtained leave of the Court below or of this court, in respect of the grounds of appeal filed, the appeal was incompetent having offended against the provisions of S. 213 (3) of the Constitution 1979.

I was of the opinion then, as I still am, that ground 1 of the grounds of appeal did not offend the provisions of S. 213 (3) (supra). There being a valid ground of appeal, the appeal was accordingly not incompetent. Appellant were the defendants in the High Court. Plaintiffs/Respondents brought an action on the 11th November, 1972, in a representative capacity against Defendants/Appellants claiming:

(1) a declaration of title to a piece of land known as Ohia Amangwu.

(2) damages for trespass.

(3) perpetual injunction restraining the defendants, their servants or agents from committing any further trespass on the land in dispute.

On the 15th April, 1977 the High Court granted all the reliefs claimed. Defendants’ appeal from this judgment to the Court of Appeal was dismissed on the 23rd September, 1982. The appeal before us is from this judgment.

The facts of the case are not relevant for the purposes of this judgment. This is because the only issue was whether appellants’ appeal was or was not incompetent having not complied with the provisions of Section 213 (3) 1979 of the Constitution 1979. Before Counsel for the appellants Mr Phillips argued the appeal, Mr R.A. Ogunwole for the Respondents drew our attention to the notice of preliminary objection filed on behalf of the respondents that

“The Grounds of Appeal as contained in the Notice of Appeal are incompetent in that they raised issues of mixed law and fact and neither the leave of the Court of Appeal nor the Supreme Court has been obtained as it is necessary under section 213 (3) of the Constitution of the Federal Republic of Nigeria 1979”.

In his argument Mr. Ogunwole referred to the grounds of appeal filed, and pointed out that the issues rose in both grounds of appeal were issues of fact, and at best would be issues of mixed law and fact. He cited and relied on Ojemen and Ors. v. Momudu II and Ors. (1983) 3 S.C. 173 at p. 208, and submitted that even where issues of res judicata were raised in the ground of appeal this Court held that it was a question of mixed law and fact which required leave in accordance with S. 213 (3). Mr. Philips contended that both ground of appeal raise questions of law alone. He conceded that no leave of either the Court of appeal or this Court was obtained before the two grounds of appeal were filed. He submitted that since the grounds of appeal filed were grounds of law, appellant did not require leave.

I reproduce hereunder the relevant part of S. 213 (1) (2) (3) for ease of reference.

“S. 213 (1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal.

(2) An Appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Courts of right in the following cases.

(a) Where the ground of appeal involved questions of law alone, decisions in any civil or criminal proceedings before the Federal court of Appeal;