Akiwiwu Motors Ltd & Anor V. Dr Babatunde Sangonuga (1984)

LawGlobal-Hub Lead Judgment Report

BELLO J.S.C.

Before the commencement of the hearing of this appeal, learned counsel for the respondent raised preliminary objection that the appeal is incompetent on the ground that the only two grounds of appeal are of facts or mixed law and facts and no leave has been obtained. Learned counsel for the appellant appears to have no valid answer to the objection on ground 1 which reads.

“The judgment is against the weight of the evidence.” Although he concedes that the 2nd ground of appeal is defective, he urges us to allow him, to argue it as was done in Onaga v. Micho & Co. (1961) All N.L.R. 324. The 2nd ground simply complains: “The award of damages is manifestly too high and unreasonable.”

It is clear to me the first ground of appeal is a ground of facts and to put it at its best the 2nd ground of appeal is mixed question of law and facts. In his submission on his brief on this ground learned counsel for the appellant did not raise any issue of law but his argument was concerned with facts only. That being the, case, and since no leave has been obtained in accordance with section 213(3) of the Constitution, the appeal is incompetent.

Accordingly, the purported appeal is struck out with N300.00 costs to the respondent.

OBASEKI J.S.C. The objection raised by Chief Afe Babalola is well founded. Ground 1 which reads: “the judgment is against the weight of evidence” is clearly one that involves questions of fact.

Ground 2 which reads ‘the award of damages’ is manifestly too high and unreasonable is, in my view, a ground which involves questions of mixed law and fact. This court has, in a series of cases, decided that where grounds of appeal involve questions of fact alone or questions of mixed law and fact, leave of the Court of Appeal or the Supreme Court must be obtained to make the appeal competent and invest the Supreme Court with jurisdiction to hear the appeal.

See Section 213(3) of the Constitution, 1979

Ojeme v. Momodu III (1983) 3.SC 173, Oke v. Eke (1982) 12 SC. 228, Akpasubi v. Unweni (1982) 11 SC. 132.

Professor Uche properly drew our attention to the case of Onaga v. Micho & Co. (1961) All N.L.R. 324 where Unsworth, F.J. cautioned at page 328 that grounds of appeal complaining of excessive award of damages must be accompanied by particulars and also indicate whether the complaint is against the application of wrong principles of law in arriving at the estimate.

It is unfortunate that counsel failed to heed his warning. I am of the view that under our new Rules, Supreme Court Rules 1977, Order 7 rule 2(4), the 2nd ground of appeal as worded is no ground of appeal at all. However, in his brief of argument, learned counsel for the appellant argued the ground on the evidence adduced and reference was not made to the application of wrong principles of law. It is therefore clear that the two grounds of appeal are grounds in respect of which leave should have been obtained. As the appellant has conceded that no leave was obtained, it is clear that this Court has no jurisdiction to hear the appeal. The purported appeal is hereby struck out with costs to the respondent fixed at N300.

ESO J.S.C. Learned counsel for the respondent, Chief Afe Babalola has raised a preliminary objection before this Court that there is no jurisdiction in this Court in the matter of the purported, appeal.

Chief Babalola referred us to, the notice of appeal which contains the grounds of appeal wit:

“(1) The judgment is against the weight of the evidence; and