J. B. Ogbechie & Ors. V. Gabriel Onochie & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

Mr. Kehinde Sofola S.A.N. has applied under Order 8 Rule 2(5) of the Supreme Court Rules 1985 for an order for leave to file and argue six additional grounds of appeal in this case. The six grounds of appeal were all described by learned Senior Advocate as grounds of law. Mr. Sofola’s application is dated 12th February 1986.

However, on 13th March 1986, Mr. Dapo Abudu, learned counsel representing the Respondents had filed a notice under Order 2 Rule 9 of the same Rules seeking a preliminary objection to the appeal filed on behalf of the appellants by Mr. Sofola. Mr. Abudu’s notice reads as follows: “Take notice that upon the hearing of this application for leave to file and argue additional grounds of appeal, the Respondents shall contend that –

1. The substantive cross-appeal and the motion aforesaid be struck out as being incompetent.

OR ALTERNATIVELY

2. That the cross-appeal be dismissed for want of prosecution.

GROUNDS UPON WHICH THIS PRELIMINARY OBJECTION IS BROUGHT

1. The cross-appeal is based on grounds of mixed law and fact as shown in the Notice of Cross Appeal filed by the Respondent but no leave of either the Court of Appeal or the Supreme Court was obtained as required by section 213(3) of the 1979 Constitution.
2. The brief in respect of the cross-appeal was not filed within time as required by Order 6 Rule 5(1) of the Supreme Court Rules 1985.

We decided to take the two applications, that is that of Mr. Sofola and that of Mr. Abudu together, however taking the preliminary objection first.

It was the lusty contention of Mr. Sofola that the grounds contained in his original notice of appeal are all grounds of law, in which case, section 213(3) of the Constitution would not apply. Learned Senior Advocate referred to the case of Edward (Inspector of Taxes) v. Bairstow and Another (1955) 3 All E. R. 48 particularly the dicta of Viscount Simonds at p. 55 where the learned law lord said –

“It is true that the decision of the commissioners is only impeachable if it is erroneous in law, and it may appear paradoxical to say that it may be erroneous in law, where no question of law appears on the face of the case stated. But it cannot be, and has not been questioned, that an inference, though regarded as a mere inference of fact yet can be challenged as a matter of law, on the grounds that I have already mentioned, and this is, I think, the safest way to leave it”.

Lord Radcliffe had said in the same case –

“If the facts of any particular case are fairly capable of being so described it seems to me that it necessarily follows that the determination of the commissioners spectator general to the effect that a trade does or does not exist is not erroneous in point of law I except the occasions when the commissioners, although dealing with a set of facts which would warrant a decision either way, show by some reason they give or statement they make in the body of the case that they have misunderstood the law in some relevant particular. ”

The law Lord concluded on the points-

All these cases in which the facts warrant a determination either way can be described as questions of degree and therefore, as questions of fact. ”

In the case of O’ Kelly v. Trusthouse Force P.I.C. (1983) 3 All E.R. 456 it was the question of master and servant. Ackner L.J. (p. 468) related the approach of the Court of Appeal to the issue question of law and question of fact and said:

“It is clear that the approach of the Court of Appeal in the Young and Woods v. West case was that an error of law could be established if (a) the industrial tribunal took into account the wrong criteria in concluding that a contract was a contract of service or a contract for service and/or (b) if the tribunal although applying the proper criteria, gave the wrong weight to one or more of the relevant factors”