Nigeria National Supply Co. Ltd V. Establishment Sima Of Vaduz (1990)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
In the 2nd October, 1990, I dismissed this appeal and reserved the reasons for doing so to 14th December, 1990. I now give my reasons.
A suit filed by respondent Establishment Sima of Vaduz was on the 2nd day of March, 1988 struck out by the Federal High Court. An application under order 9 rule 6 Federal High Court (Civil Procedure) Rules was argued before that court on 17th day of October, 1988 for relisting the suit.
Even though the present appellant as respondent to that motion opposed, the prayer was granted. In granting the motion for relisting the suit the learned Judge, inter alia, held as follows:
“The only issue for deeper consideration is the length of time between when the action was struck out and the motion to relist it was taken. There is no time limit as when such a motion should be taken but the guilding principle is fairness to all the parties concerned. The applicant will not be claiming his right but will be praying on the court’s discretion and hence he must not do anything to prejudice his position or that of the other party. I am fully aware of the Supreme Court case in the Williams’s case which lays down that application of this nature must be brought within reasonable time. What is reasonable time has to be decided on the facts of each case and a blanket definition of it cannot be given. The defendant in their own counter affidavit deposed that they would be prejudiced as some of the staff who were likely to be of use to them in the case had their services dispensed with few months after the case was struck out. I am not impressed by this reason, since there is a reasonable possibility that the action be relisted or a fresh one can be instituted the liquidator cannot be heard that he has disposed of evidence to help him in contesting or defending any action within his duty.
I do not consider the delay of the plaintiff inordinately long and I found that they have a good excuse to be absent in court the day they were, the application is therefore granted. The case is listed.”
Against this ruling the appellant lodged an appeal before Court of Appeal on two grounds as follows:
“GROUNDS OF APPEAL
A. The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiffs application for re-listing the suit.
PARTICULARS
(i) The motion for re-listing of the suit was filed about seven months after it was struck out.
(ii) No reason was given by the plaintiff for the delay in its affidavit.
The learned trial Judge erred in law in not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of conditions precedent to the granting of an application to relist a suit struck out.
PARTICULARS
(i) The defendant in its counter affidavit averred that the officers who will be needed for prosecution of its case are no longer on its staff list.
RELIEF SOUGHT FROM THE COURT OF APPEAL
That the decision of the learned trial Judge Belgore, J. (sic) be set aside and that an order of dismissal of the motion to relist suit no.FHC/L/127/86 he entered by the Court of Appeal.”
The appellant then prayed the Federal High Court for stay of proceedings pending determination of the appeal. This was also refused for illuminating reason advanced in the ruling of the trial Judge. Being dissatisfied with this decision, another application was taken to the Court of Appeal by way of motion. The Court of Appeal held that the proposed grounds of appeal were incompetent because they were grounds of mixed law and fact for which leave was necessary and leave not having been obtained, dismissed the application. Thus the appeal, to this court, whose grounds state as follows:
GROUNDS OF APPEAL
The learned Justices of the Court of Appeal erred in law when they dismissed the applicant’s application for stay of proceedings in suit no.FHC/U127/86 pending at the Federal High Court on the ground that the appeal is not competent, leave to appeal having not been obtained.
PARTICULARS
(a) The two grounds of appeal filed by the applicant raise questions of law alone.
(b) By virtue of section 220 of the constitution, appeals from decision of the Federal High Court lie to the Court of Appeal as of right where the ground of appeal involved questions of law alone.
The appellant has all along been intimated by the ruling that is in the Federal High Court and the Court of Appeal that his prayers do not amount to anything more than asking for court’s discretion. Where a party by way of motion seeks court’s discretion, as in this case, asking for stay of execution, the evidential vehicle in the main will be the supporting affidavit or affidavits and where the motion is opposed, the counter affidavit. Affidavit contains nothing more than facts a person swearing to it believes to be true, even though not necessarily the truth, and as such it is not law but facts.
The facts contained in such affidavits will sway the Judge one way or the other in deciding where justice of the case demands his discretion should go.
Thus in deciding whether to relist a matter struck out, the court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion. This is essentially matter of fact. It is therefore inappropriate to address such matter of discretion as matter of law; the facts leading to the consideration of the discretion are mere facts, even though law will be applied to those facts. Now the appellant right from the Federal High Court to the Court of Appeal and finally to this court has tenaciously insisted his grounds of appeal from the High Court are grounds of law, merely by tagging them “error in law”. Mere assertion that a ground of appeal is based on “error in law” does not make it one if the errors particularised are no more than matters of fact. Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 N.W.L.R. (Pt. 126) 299. The grounds of appeal tagged by the appellant as those based on “error in law” are no more than mere facts, the decision complained of are those of court’s discretion based on facts deposed in affidavit evidence. Ogbechie v. Onochie (No.1) (1986) 2 N.W.L.R. (Pt.23) 484; Ifediorah v. Umeh (1988) 2 N.W.L.R. (Pt. 74) 5; Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt.6) 167
When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. See s. 221(1) and (2) of the constitution 1979; Oluwole v. L.S.D.P.C. (1983) 5 S.C.1; State v. Omeh (1983) 5 S.C.20; Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been sought and obtained to file the ground. Ojemen v. Momodu II (1983) 1 S.C.N.L.R.188 at 206.
The appellant right from the Federal High Court to the Court of Appeal has fought a futile battle to have a stay of proceedings pending appeal because its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.
It was for the foregoing reasons that I, on 2nd day of October, 1990, dismissed this appeal with cost of N500.00 to the respondent.
OBASEKI, J.S.C.: On the 20th day of October, 1990 this appeal came up for hearing. After hearing counsel in oral argument and reading the briefs filed by counsel to the parties together with the record of proceedings in the court below, I found that the appeal was devoid of merit and I thereupon dismissed the appeal but reserved the reasons for the judgment till today. I now proceed to give them. I agree with the reasons for the judgment just delivered by my learned brother, Belgore, J.S.C.
The appeal to this court raises the sole issue of competence.
In other words were the two grounds of appeal filed against the ruling of the Federal High Court grounds which involves questions of fact or mixed law and fact to require leave of the Federal High Court or the Court of Appeal. The issue can be disposed of by posing the question differently, i.e. whether the grounds of appeal filed by the appellant involves questions of law alone.
It is settled law that if the ground of appeal to the Court of Appeal from the Federal High Court involves questions of law alone the appellant can appeal as of right. He requires no leave of either the Federal High Court or the Court of Appeal in appeals from the Federal High Court to the Court of Appeal (see section 220(1) of the constitution of the Federal Republic of Nigeria, 1979). See also Ojemen v. Momodu (1983) N.S.C.C. (Vol.111) 135; (1983) 1 S.C.N.L.R.188.
But when the ground of appeal involves questions of fact or question of mixed law and fact (see section 221(1) of the constitution of the Federal Republic of Nigeria. See also Ojemen v. Momodu (supra)
When therefore leave is required to appeal and an appellant fails to apply for leave or is refused leave, there is no valid appeal if filed without leave.
This issue of validity is raised in the ground of appeal to this court which reads:
“The learned Justices of the Court of Appeal erred in law when they dismissed the applicant’s application for a stay of proceedings in suit no.FHCL/127/86 pending at the Federal High Court on the ground that the appeal is not competent, leave to appeal not having been obtained.
Particulars
(a) The two grounds of appeal filed by the applicant raise questions of law alone.
(b) by virtue of section 220 of the constitution, appeals from decisions of the Federal High Court lie to the Court of Appeal as of right when the ground of appeal involves question of law alone”.
This ground therefore calls for an examination of the two grounds of appeal set out in the notice of appeal to the Court of Appeal.
These two grounds read:
“(A) The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiffs application for re-listing the suit.
Particulars
(i) The motion for relisting the suit was filed seven months after it was struck out;
(ii) No reason was given by the plaintiff for the delay in its affidavit.
(B) The learned trial Judge erred in law in not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of the conditions precedent to the granting of an application to relist a suit struck out.
Particulars
The defendant in its counter affidavit averred that the officers who will be needed for prosecution of its case are no longer on its staff list.”
The guiding principle is that a ground of appeal must be given its most liberal interpretation to ascertain the questions it involves.
If a ground of appeal is not limited by its own terms and particulars, the court has no justification in adopting a narrow view of the questions the ground involves. Taking ground A, the question involved are:
(1) Did the learned trial Judge fail to exercise his discretion properly
(2) Did the learned trial Judge examine the facts or material before him
(3) Does an examination of the facts justify the grant of the application to relist the suit
There is no agreement between the parties on the appellant’s allegation that there was an improper exercise of discretion by the learned trial Judge. Therefore, to ascertain whether there was or was not a proper exercise of discretion, the Court of Appeal is being called upon to review the facts before the learned trial Judge and determine whether he carried out a proper judicial exercise of assessment of facts, ascription of probative values and making of findings of fact before making his choice which discretion involves between granting the application and refusing the application to relist. This ground therefore involves questions of fact in addition to questions of law.
Ground B of the grounds of appeal to the Court of Appeal involves question of
(1) whether the difficulty in securing the defendant’s witnesses sworn to in the counter affidavit because they have left the defendant’s services is a fact and whether that should justify a refusal of the application to relist.
This question is a pure question of fact and the ground of appeal only seeks from the Court of Appeal reversal of the finding that the fact that the officers are no longer on the defendant’s staff list does not amount to a prejudice to warrant the refusal of the application to re-list.
From the analysis above, it is clear that the two grounds of appeal set out in the notice of appeal to the Court of Appeal are at best grounds of mixed law and facts and at worst grounds of fact alone which requires leave of the Federal High Court or Court of Appeal to give constitutional validity to the notice of appeal.
The appellant having failed to apply for and obtain the necessary leave has derived the appeal to the Court of Appeal of any competence. The appeal being incompetent, the application before the Court of Appeal for stay of proceedings in the Federal High Court pending the determination of the appeal to the Court of Appeal cannot be entertained and the Court of Appeal was justified in refusing it. See Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 N.W.L.R. (Pt.126) 299, United Bank for Africa Ltd. v. Gmbh (1989) 3 N.W.L.R. (Pt.110) 374 at 409
Ogbechie v. Onochie (No.1) (1986) 2 N.W.L.R. (Pt.23) 484, Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt.74) 5.
It was for the above reasons and the reasons set out in the reasons for judgment just delivered by my learned brother, Belgore, J.S.C. that I dismissed the appeal.
Other Citation: (1990) LCN/2402(SC)
