Harrison Welli & Anor V Charles Okechukwu & Ors (1985)
LawGlobal-Hub Lead Judgment Report
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;
(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court.”
It is only where the grounds of appeal fall within S. 213 (2) (a) above, that appeal to this Court is as of right. In all other cases leave of the Court of Appeal or of this Court is required.
The two grounds of appeal filed against the judgment of the Court of Appeal are as follows:
Grounds of Appeal
(1) The learned Justices of the Federal Court of Appeal erred in law and therefore wrongly dismissed the appeal when having enumerated the 9 questions set out by the Appellant as issues joined between the parties they considered that only 4 issues were joined without considering why in law the remaining 5 issues or any of the issues set out by the Appellants were not joined or if joined why they did not have to be resolved by the learned trial Judge.
(2) The learned Justices of the Federal Court of Appeal erred in law in dismissing the appeal when on the record the learned trial Judge failed to set out the issues joined and make specific findings on them in accordance with the decision of the Supreme Court in Otokhagua Ozibe & 4 Ors v. Chief Ile Aigbe & 2 Ors. (1977) 7 S.C. 1; in particular the learned Justices failed to consider the Appellants’ Counsel’s submission ground No.5 with reference to the Appellants’ Survey Plan (Exhibit 2) which shows on the northern boundary the Appellants’ tenant whose presence was not challenged by the Respondents and also on earth mound and Ikpo (boundary) trees.”
It is clear here that none of the two grounds of appeal relied upon contains particulars of misdirection or of error in law, as is required by Order 7 rule 2 (2) of the Supreme Court Rules, 1977, (no Order 8 Rule 2(2) the Supreme Court 1985). The particulars of error alleged are mixed up in the grounds of appeal. They have not been separated.
It seems clear from the words of ground 2 above, that in arguing this ground and its consideration before us it would be necessary for Counsel to challenge the findings of fact made by the trial Court, and accepted by the Court of Appeal. It will also be necessary for this Court to review the findings of fact made by the lower Courts. It will also call for a determination whether or not any specific findings of fact were made and the justification for such findings of fact if any. To determine the issue on the pleadings is unavoidably a question of the consideration of the facts involved in the dispute. There is the well settled presumption that the decision of a court of trial on the facts is correct. See Folorunsho v. Adeyemi (1975) 1 N.M.L.R. To hold otherwise, the presumption must be displaced by the person alleging the contrary.
The first part of the allegation in this ground is that the Court of Appeal erred in law in dismissing the appeal when the learned trial Judge failed to set out the issues joined by the parties and to make specific findings on them. It is pertinent to point out that the question of the learned trial Judge setting out the issues joined by the parties was not a ground of appeal in the lower Court, and was raised for the first time in the grounds of appeal before us. It must however be conceded that the question was raised and argued in the Court of Appeal and disposed of by that Court. In the contention in the Court below that the trial Judge did not fully advert his mind to the issues joined by the parties, thus resulting in a miscarriage of justice, Counsel in his argument in the Court of Appeal listed the following nine issues as joined, namely
“(1) The ownership of the land in dispute.
(2) The name of the land.
(3) The boundaries and identity of the land.
(4) The ownership of the land north of the Amangwu juju shrine.
(5) The issues as to whether the land was reserved for the said juju and if so the extent of the area so reserved.
(6) The issue as to whether defendants are claiming the land where the juju situates.
(7) The issue as to when did the defendants first cultivate the land in dispute.
(8) The issue as to whether the ownership of the juju confers a right to the land where the juju situates, and finally,
(9) The issue as to whether the site of the UNA Church has any relevance to the case of both parties.”
The Court below found and it was also conceded by Counsel in that Court that both (1) and (3) above were considered by the trial Judge. They also found on the record before the Court that in addition, the material facts in respect to which issues were joined were:
(1) The area of the land in dispute considering the plans of the parties.
(2) The traditional history and acts of ownership which are the basis of the ownership of the land.
(3) The alleged acts of ownership by both parties.
(4) The issues of trespass.
The Court below found as a fact that the learned trial Judge considered these issues. This is clearly a finding of fact made by the Court of Appeal in respect of the issues joined in the trial Court. There is no doubt therefore appellant required leave of the Court below or of this Court to appeal against the finding. The second part of the ground of appeal complained against the Justices of the Court of Appeal’s failure to consider the submission of appellants’ Counsel on ground 5 with reference to appellants’ survey plan (Exhibit 2). Considerations of failure on the part of the Justices per se, to do something where the facts found and no more are accepted may well be a question of law where this Court is invited to consider the consequences of the failure without the consideration of additional facts. Where however this Court is invited to consider or review other facts in addition to the failure to determine the consequences of the failure to do something, as in this case with respect to the consideration of Exhibit 2, the appellants’ survey plan, this in my opinion, is not merely a question of law, but undoubtedly as was held in Ojemen & Ors. v. Momodu II & Ors. (1983) 3 S.C. 175, a question of mixed law and fact. In all such cases leave of the Court of Appeal or this Court is required with respect to the filing of such grounds of appeal under S. 213 (3) of the Constitution 1979. Thus the second ground of appeal before us is incompetent, not having complied with S. 213 (3) of the Constitution 1979. See Owuda v. Lawal (1984) 4 S.C. 145.
The first ground of appeal complains simply stated, that the Court of Appeal failed to give reasons why some of the issues accepted to have been joined by the parties were not considered. It is both an elementary and a fundamental principle of the administration of justice in our Courts that the judgment of the Court in a matter before it must be confined and limited to the issues litigated by the parties to the suit. Where at the end of the day any of the material issues, whose determination is likely to affect the result of the litigation between the parties, is not resolved, the issue between the parties would appear not to have been determined. It is for this reason that where several issues affecting the determination of a matter before the Court are specified, it is essential for the Court determining the case to decide such issues. Where however an issue is not relevant to the determination of the case and was disregarded, it is the duty of the Court to state why such issues are considered not relevant. In all cases where issue is joined, there is a duty on the Court to state how such issue has been disposed of. See Ozibe & Ors. v. Chief lie Aigbe & Ors. (1977) 7 S.C. 1. The circumstances where a Court is required to do something in the discharge of its duties may fall within its exercise of discretion or a mandatory duty imposed in the determination of the matter before it.
In granting applications for extension of time to appeal, in awarding costs and general damages in an action, in certain cases of the grant of injunctions, declaratory action, etc., a considerable amount of discretion may be and is vested in the Court and exercised in the interest of justice. However [in all cases where the issue concerns the determination of liability, there is clearly a duty on the Judge to determine the matter on the issues before him on the facts found. It is therefore a question of law and not one of fact whether an appeal lies where the ground of appeal is that the Judge has failed to give reasons for discharging a duty in this case one of rejecting consideration of issues properly joined].
It is clear therefore, that ground one of the grounds of appeal in this appeal, which concerns a determination of the scope of the legal duty of the Court without a consideration of the facts, is one of law, and does not offend against the provisions of S. 213(3) of the Constitution 1979. The question whether the ground of appeal, if argued, would have succeeded in resulting the reversal of the judgment of the Court of Appeal is a different matter.
In my view, the preliminary objection fails. Appellants can argue ground one of the grounds of appeal filed.
SOWEMIMO, C.J.N.-I have had the opportunity of reading, in draft, the reasons for judgment given by my learned brother, Uwais, J.S.C., in the above appeal. I agree absolutely with him and adopt his order as to costs.
M. BELLO, J.S.C.: I have read the reasons for judgment of my learned brother, Karibi-Whyte, J.S.C. I agree with his view that the 1st ground of appeal which complained of the failure of the Court of Appeal to discharge its judicial duty to determine and resolve issues that had been joined and argued before it involved questions of law alone. It is a fundamental principle of the administration of justice in our judicial system that where Jurisdiction is conferred upon a court to hear and determine certain questions, the court has a duty to hear, determine and resolve such questions when raised: Fajinmi v. The Speaker (1962) All N.L.R. 205.
In Ebamawo v. Fadiyo (1973) 1 ALL N.L.R. PART 134 six grounds of appeal were filed and argued in the Magistrate’s Court, Benin City; against the judgment of Benin Customary Court but the Magistrate considered and decided the appeal on one ground only. He allowed the appeal on one ground only. He allowed the appeal and set aside the judgment of the Customary Court. On appeal to the High Court against the only issue decided by the magistrate, the High Court set aside the judgment of the Magistrate’s Court and restored the decision of the Customary Court. The only point argued on appeal to this Court was that the High Court, after allowing the appeal, should not have restored the judgment of the Customary Court. This court remitted the case to the Magistrate’s Court to determine the appeal on the remaining five grounds of appeal which the Magistrate failed to consider and decide upon.
In my view a ground of appeal complaining that a court of law did not perform its duty of adjudication is a ground involving a question of law alone and confers a right of appeal under section 213(1) (a) of the Constitution.
These are my reasons for holding the appeal to be competent in respect of the first ground of appeal and for disagreeing with the majority.
Other Citation: SC.122/1984
