Cyril Chukwuwado Arinze V. Afribank Nigeria Plc & Ors (2000)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A. 

I will first of all consider the preliminary objection of learned Counsel for the respondents on the competency or the notice of appeal. The grounds of objection are as follows:-

(a) Raises issue or mixed law and fact for which I have is required but was not sought or obtained.

(b) Ground 2 of the Notice of Appeal contains no particulars.

On ground one, learned Counsel for the Respondents submitted that in determining the competency of a notice of appeal, the Court should not look at the Notice of Appeal alone, but the application which gave rise to the decision being appealed against and the judgment. It was further contended that the Court should determine from its own examination of the Notice of Appeal the nature of the grounds of appeal i.e. whether they are of law, mixed law and fact or of fact alone and that the Court should not rely on the Appellant’s description of the ground of appeal in determining its nature.

Reliance was placed on the cases of Ojemen vs. Momodu II (1983) NSCC 14 136 at 147: (1983) 1 SCNLR 188 and Ifediorah vs Ville (1988) 2 NWLR (Pt.74) 5 at 15. He then submitted that ground One or the Notice of Appeal raises issues of mixed law and fact and such it is required but no leave was sought and obtained and as such it is incompetent.

He also submitted that ground two is incompetent in that, it contains no particular of the error complained about, stressing that a ground of appeal which contains no particular is worthless and relied on Okorie v. Udoh (1960) NSCC 108 at 110 (1960) SCNLR and Ikonne v. Wachukwu (1991) 2 NWLR (Pt.172) 214 at 223 E-G. He finally submitted that, there is no competent Notice of Appeal before the Court upon which this appeal can be predicated and urges the court to strike it out.

In his reply, learned Counsel for the Appellant submitted that ground one does not raise issues of mixed law and fact but of law only.

He submitted that the case of Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) page 5 does not apply to the present case as there is no complaint of any disputed fact but complains about non-application of undisputed facts as they existed before the learned trial Judge and relied on the case of U.B.A. Ltd v. Stahlbau Gmbh & Co. (1989) 3 NWLR (Pt.110) 374 at 349.

On the second ground, he submitted that the ground is not without particulars but its single particular is included in the body of the grounds, stressing that there is no law requiring the mandatory separation of the particulars from the body of ground and cited in support Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267. He further argued that ground two is a complaint against the learned trial Judge’s decision that it was not necessary to consider the affidavits filed by the parties pointing out that the single particular is that the exercise of his discretion was not based on the affidavits be rare the Court.

He further submitted that failure to apply that affidavits before him in exercising his discretion is questionable by appeal, and it is a ground of law and not mixed law and fact and as such no leave is required and urges the court to dismiss the preliminary objection.

In order to appreciate the submissions of learned Counsel for the parties fully, I would like to reproduce the grounds of appeal.

Ground One: Error of Law

The learned trial Judge erred in law when he ordered a transfer of the case of the Lagos judicial division when there was no jurisdiction for such an order considering the materials placed before the court by the parties.