Akiwiwu Motors Ltd & Anor V. Dr Babatunde Sangonuga (1984)
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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
(2) The award of damages is manifestly too high and unreasonable.”
The first ground of appeal, Chief Babalola said, is obviously a ground of fact and that as there has been no leave of this Court or of the Court of Appeal to appeal on facts, this court has no jurisdiction to hear the appeal on fact. Prof. Uche conceded this though at first he referred us to what he said would be the content of the ground and which would make the ground an inference.
Of course, we have held in a series of cases that when there is an appeal on fact or mixed law and facts without leave of this Court or the Court of Appeal, this Court has no jurisdiction having regard to S.213(3) of the Constitution of the Federal Republic of Nigeria 1979. I have no doubt at all that we have no jurisdiction to hear ground 1 of the grounds of appeal.
Ground 2 specifies no particulars and under Order 7 Rule 2(2) & (4) it should be struck out. Even then, if one leans backwards and tries to indulge the appellant by allowing ground 2 to stand, it would at least amount to a ground of mixed law and fact. Indeed the brief which the appellant would have relied upon shows per adventure that he relies heavily on the evidence given in the case to substantiate his ground 2.
I will strike out the two grounds of appeal as they have been given in the notice of appeal which is without the leave of this Court or the Court of Appeal. There being no other grounds of appeal contained in the notice of appeal I hereby strike out the purported appeal for want of jurisdiction with N300.00 costs to the respondent.
ANIAGOLU J.S.C. I agree that the objections raised are well founded. The “weight of evidence” ground of appeal is clearly a ground of appeal on facts. That requires the leave of the Court of Appeal or of this Court before it can be considered by the Supreme Court. Professor Uche has conceded that he did not obtain leave, although he did apply for leave but had to abandon it for what he termed “administrative difficulties”.
The second ground of appeal complained that the damages were “too high and unreasonable!”. No particulars were given as required by Order 7 Rule 2(2) of the Supreme Court Rules. Under, sub-rule (4) of the Order, such a ground of appeal without particulars is liable to be struck out on the Court’s own motion or on application by the respondent. The respondent has applied for it to be struck out.
Alternately, upon the wordings of that ground of appeal, it is at best a ground of mixed law and facts, which having regard to Section 213(3) of the Constitution, 1979, will need leave of the Court of Appeal or of this Court to invest this Court with jurisdiction to hear it. From whatever angle one takes this matter, the objections raised cannot but be upheld. Professor Uche has drawn our attention to the warning of Unsworth, F.J., in Onaga v. Micho and Co. (1961) All N.L.R. 324 at 328 that grounds of appeal on damages without particulars could be struck out on the principle of vagueness.
He says, however, that as Unsworth, F.J., had done 25 years ago we should bend over backwards to allow the appeal to be argued on damages. If 25 years ago the warning was given, it cannot be said that punishing a party for non-adherence to the warning 25 years after, can be termed harsh. This is only by the way. As I have said, I uphold the objections and hereby strike out the appeal as not properly before us by reason of jurisdiction. I would also award, and hereby award, N300.00 costs to the respondent.
NNAMANI J.S.C. The respondent has filed and argued a preliminary objection contending that there is no appeal before this Court. Two grounds of appeal to this Court were filed by the appellants after the judgment of the Court of Appeal.
There is no doubt in my mind that the first ground of appeal which complained of weight of evidence is one of fact. The second ground which complained that the award of damages is manifestly too high and unreasonable as framed is a ground of mixed law and fact. Both grounds are those in respect of which leave to appeal to this Court ought to have been obtained from the Court of Appeal or from this Court pursuant to section 213, sub-section 3 of the Constitution.
No leave was obtained from the Court of Appeal or this Court. Even if one indulged Professor Uche as he, pleaded in respect of the absence of particulars in ground 2, the problem of jurisdiction of this Court, would still be in issue. There is therefore in my view no appeal before this Court. I would uphold the preliminary objection of Chief Babalola and strike out the grounds of appeal. I would also strike out the purported appeal with N300.00 costs to the respondent.