The Minister Of Petroleum & Mineral Resources & Anor. V. Expo-shipping Line (Nig.) Ltd (2010)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This is an appeal against the ruling of the Lagos Division of the Court of Appeal delivered on 9/12/2002 dismissing the applicants’ /appellants’ application by notice of motion brought pursuant to Order 3 Rules (2), (3), and (4) of the Court of Appeal Rules Cap.62 Laws of the Federation of Nigeria and Section 16 of the Court of Appeal Act seeking three reliefs to wit, firstly, for enlargement of time within which to seek leave to appeal against the judgment of the Federal High Court Lagos delivered on 13/12/2001 in the suit No.FHC/L/CS/510/96; secondly, leave to appeal against the said judgment and, thirdly, enlargement of time within which to appeal against the said judgment. The application is supported by an affidavit of four paragraphs. The respondent in opposing the application has filed a Counter-Affidavit of seven paragraphs. After hearing both parties through their respective counsel, the court below in a considered ruling in dismissing the application said at page 22 of the record thus:

“I am satisfied that the proposed grounds of appeal raise good grounds why the appeal should be heard. If the applicants had satisfied the first limb of Order 3 Rule 4 1 would have granted this application since the decision of the lower court was final there would have been no need to seek the leave of this court.”

The applicants (i.e. appellants in this court) being dissatisfied with the decision have appealed to this court on a Notice of Appeal filed on 13/12/2002 containing a sole ground of appeal. They have filed a joint brief of argument and therein have raised one issue for determination as follows: “Whether the learned Justices of the Court of Appeal were right in law when they dismissed the appellants’ application for enlargement of time within which to seek leave to appeal.”

The respondent has also filed its brief of argument on 24/2/2003 and has raised one issue for determination though similar to the appellants’ only issue for determination as aforestated and it reads as follows:

“Whether the learned Justices of the Court of Appeal exercised their discretion judiciously and judicially when they dismissed the appellant’s application for enlargement of time within which to seek leave to Appeal”

The appellants have also filed a reply brief of argument on 1/7/2003 in response to the preliminary objection taken by the respondent and as set out in its brief of argument. Both sides at the oral hearing of the appeal before us have adopted and relied on their respective briefs of argument in support of their respective cases in this appeal.

The respondent has raised a notice of preliminary objection in its brief of argument against the sole ground of appeal filed by the appellant contending that, overall, it has raised a question of mixed law and fact in that the sole ground of appeal has pungently touched on the issue of the exercise of discretion by the court below; furthermore, that the particulars of error No (a) to the sole ground of appeal has raised questions of fact for which leave of court is required in order to sustain the said sole ground of appeal as competently so filed within the provisions of Section 233(3) of the 1999 Constitution and finally that the appellants having failed first to seek and obtain leave of court as prescribed under Section 233(3) (supra), the said sole ground of appeal and the notice of appeal are incompetent. He has relied on the cases of Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299 at 325, Nyambi v. Osadin (1997) 2 NWLR (Pt.485) 1 at 8. Paragraph (f), Complex Ltd. V. Nigeria Arab Bank Ltd. (1997) 3 NWLR (Pt.496) 643 at 654 paragraphs C-H, to urge the court to strike out the appeal as incompetent ab initio.

The appellants submitting to the contrary have urged the court to uphold the sole ground of appeal as competent being a ground of law which has dealt with questions of inference arising from admitted or proved and accepted facts thus making the instant ground of appeal a ground of law. They refer to and rely on the cases; Complex Ltd. V. Nigeria Arab Bank (supra) and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745 per Nnaemeka-Agu JSC, for so submitting.

The said ground of appeal involved in this imbroglio as per page 27 paragraph 3.1 of the record reads as follows:

“The Court of Appeal erred in law when it held to wit:- I am satisfied that the proposed grounds of appeal raise good grounds why the appeal should be hear (sic). If the applicants had satisfied the first limb of Order 3 Rule 4(2) I would have granted this application. Since the decision of the lower court was final there would have been no need to seek the leave to this court. In the final result, this application fails. It is dismissed with N200 cost in favour of the respondent.

PARTICULARS OF ERRORS:

a. The appellant reasons for failure to appeal within time is not vague and satisfies the requirement of Order 3 Rule (4) (1) of the Court of Appeal Rules having due regard to the obvious provisions of Section 294(1) of the 1999 Constitution.”

I think I should observe it is settled law that whether a ground of appeal is one of law or mixed law and facts or facts alone does not really depend on the label tagged to the said ground. In that regard a ground of appeal and the particulars have to be construed together to determine under which one of the above three slots it has fallen to be considered. Leave in regard to cases that fall within section 233(3) of the 1999 Constitution bestows on the Court the jurisdiction to deal with such matters. Leave must have been first sought and obtained, that is to say where a ground of appeal is one of mixed law and facts or facts alone.