Alhaji Tahir Maigoro V Alhaji Jibrin Garba (1999)
LAWGLOBAL HUB Lead Judgment Report
In the High Court of Yola, holden at Yola, the plaintiff (now appellant) commenced this action against the defendant (now respondent) in Suit No. GGSY/11/89. By paragraph 15 of his Statement of Claim, dated 11th April, 1989, the appellant’s claims against the defendant were as follows:-
“By reasons of the matters aforesaid, the plaintiffs was wrongfully detained in police cell, and deprived of his liberty, and has greatly injured his credit, character and reputation and portrayed falsely as an arsonic (sic) criminal has been put to contempt, ridicule to his family and the entire public and has been put to considerate trouble, inconvenience, and anxiety.
(i) An injunction against the defendant his agents, servants, privies however from further false malicious prosecution, defamation, or criminal allegation however against the plaintiff.
(ii) And the plaintiff claims against the defendant the sum of N500,000.00 (Five hundred thousand Naira) being damages for defamation, false malicious prosecution, injury to his character and reputation, wrongful detention and false detention as a result of malicious criminal defamation and allegations made to the police at the instance of the defendant together with 10% interest from the date of judgment until payment.”
After pleadings had been filed and exchanged, the matter proceeded to hearing. At the end of the trial, the learned trial Judge, Abba, J. delivered a considered judgment wherein he upheld the claim of the appellant. As the respondent was not satisfied with that judgment, he appealed to the Court below. The respondent was successful in the Court below as his appeal was allowed. Not satisfied with the judgment and orders of the court below, the appellant has now appealed to this Court.
The facts of this case are simple. On the night of the 21st of November, 1988 at about 2.00 a.m. one of the vehicles owned by the respondent was engulfed by fire that eventually destroyed it. The respondent then made a report to the police about the incident. At the Station, when asked if he knew who could have done the act, he confessed that he knew of no one. When he was further asked if there was anyone he could describe as his enemy, the respondent mentioned the appellant as his old political enemy. Following that disclosure, the police promptly arrested the appellant and was detained at the Police cell for about three days. Though he was later granted bail, he was arraigned before the Upper Area court No. 1 Yola, but was eventually discharged by that Court for the offences for which he was charged. It was after he was so discharged that the appellant commenced this action against the respondent.
As I have said earlier, the appellant has appealed to this Court following the decision of the Court below. Pursuant thereto, the appellant has filed five grounds of appeal against the judgment and orders of the Court below. And in accordance with the Rules of this Court. Briefs of Argument were filed, served and exchanged by the parties. It must be noted at this point, that the brief filed for the respondent included the respondent’s notice of Preliminary Objection to the appellant’s brief of argument and also the respondent’s argument in response to that of the appellant in the appellant’s brief. The appellant, though duly served with the respondent’s brief did not file a reply to the said brief. That remained the position until the hearing of this appeal.
At the hearing, the appellant was not in Court and was not represented by his legal pactitioner. As the learned counsel for the respondent then adopted and placed reliance on the respondent’s brief and invited the Court to the notice of preliminary objection he had raised in the said brief.
I will therefore consider whether the said notice of preliminary objection has merit. The notice of preliminary objection reads, and I quote:-
“At the hearing of this appeal, the respondent will raise a Preliminary Objection to grounds 1,2,3,4 and 5 of the Appellant’s grounds of appeal upon which issues 1,2,3,4, and 5 were formulated for determination in the Appellant’s Brief. See Ajide v. Kelani (1985) 3 NWLR(Pt.12) at page 248.”
Grounds for Preliminary Objection:-
“(1) It will be submitted that grounds 1, 2, 3, 4 and 5 are at best grounds of fact or mixed law and facts, for which leave of the Court below or the Supreme Court should have been first obtained before filing same. See Section 213(3) of the 1979 Constitution as amended, Ajayi v. Omorogbe (1993) 7 SCNJ 168, especially at 182 last paragraph and Oluwole v. Lagos State Dev. Property Corporation (1983) 5 S.C. 1.
(2) In addition grounds 3, 4, and 5 are patently and latently defective because the three grounds allege errors in and misdirection all at the same time. This, it will be humbly submitted for the Respondent, is contrary to law and settled authorities. The Respondent will rely on the case of Nwadike and Ors. v. Ibekwe & Ors. (1987) 12 SC 14 especially at 54 per Nnaemeka Agu J.S.C. as he then was line 35-39.
(3) Since the Supreme Court has no jurisdiction to entertain an appeal on ground of facts or on mixed law and facts, unless, of course leave has been obtained, the Respondents will humbly and respectively urge my Lords to strike out the five grounds of appeal filed.”
It is from the preliminary objection taken against the appeal by the learned counsel for the respondent that the appeal be struck out as the grounds of appeal filed by the appellant are incompetent having regard to the provision of section 213(3) of the 1979 Constitution as amended.
The grounds of appeal which are the subject of this complaint read thus:-
The judgment of the learned Justices of the Court of Appeal in dismissing plaintiff/appellant case is against the weight of the evidence adduced at the trial High Court.
The learned Justices of the Court of Appeal Jos erred in law when they dismissed the appellant’s case as having not been proved before the trial High Court, and that the Police and not the Respondent caused appellant’s arrest, detention imprisonment and prosecution.
PARTICULARS OF ERRORS (SIC) IN LAW AND MISDIRECTION
(i) The Respondent set in motion the law for the arrest, detention and prosecution of the appellant leading to criminal charge.
(ii) The appellant by Exh. “E” was charged before Yola Upper Area Court on charge of mischief by fire and determined in appellant’s favour.
(iii) The Respondent’s report/suspension against the appellant to the police at C.I.D. Yola Gongola State was completely without reasonable and probable cause.
(iv) The Prosecution of the appellant in case No. UACIV/CR/FI/135/88 was as a result of malice by the Respondent against appellant. Balogun v. Amubikalun (1989) 3 NWLR (Pt. 107) page 18.
The learned Justices of the Court of Appeal erred in law and misdirected themselves having held that the appellant was duly prosecuted, discharged on all allegations the complaint/Respondent could not be held responsible nor liable for the prosecution,
PARTICULARS OF ERRORS (SIC) IN LAW AND MISDIRECTION
(i) The Respondent made a report and complaint to the Police C.I.D. suspecting without probable and reasonable cause against the appellant of setting his vehicle ablaze, who was arrested, detained, proffered a charge against Respondent under S. 326 of the Penal Code the Respondent is deemed to set in motion the law for the police clothed with authority to charge and arrest the appellant.
(ii) The complainant made a false report, complaint, maliciously without reasonable and probable cause and is therefore liable for the malicious prosecution even though technically he was not the prosecutor.
(iii) ‘The Respondents’ report complaint or information to the Police had no belief in the criminal culpability of the appellant, nor honesty, based on full conviction or founded upon reasonable grounds in relation to any set of facts and circumstances to lead any reasonable person to believe that the appellant set the Respondent’s vehicle ablaze as alleged.
(iv) The report, complaint and prosecution of the appellant alleging setting ablaze the Respondent’s vehicle had no basis nor could it be conclusive that the appellant was guilty of setting ablaze the Respondent’s vehicle as alleged by the Respondent to the Police, Herniman v. Smith (1938) A,C.305,
The learned Justices of the Court of Appeal erred in law and misdirected themselves in law, when they held inter alia:-
‘In this case the learned trial judge made findings at page 40 of the proceedings a follows:-
(a) PW4 said under cross-examination by defence counsel- “When I was there at CID HQS I saw the defendant come and invited one Police man by name Dandada and the defendant told PC Dandada to hold or continue to detain the plaintiff very cell.”
This corroborates the plaintiff’s testimony that he over heard defendant telling police not to give him bail while plaintiff was inside the police cell.
(b) PW1 the plaintiff himself in his testimony said – ‘The defendant has been telling people that he has caused my arrest and detention, Even I over heard defendant telling police not to give me bail while I was in police cell.”
‘With respect to the learned trial judge this finding was made in error.”
Which occasioned a miscarriage of Justice and resolved the case against the appellant, whereas these findings were covered by the pleadings in the statement of claim.
PARTICULARS OF ERRORS (SIC) IN LAW
(i) This evidence was simply covered by the appellants pleadings as the plaintiff as per paragraph (11) (12) (15) (xi) and (xiii) of the Statement of Claim.
(ii) The evidence adduced by PW4 and PW1 were in support of averments under paragraphs (11), (12) (15) (vi) and (xiii) of the Statement of Calim. Onwujuba v. Obienu (1991) 4 NWLR (Pt.186) 16.
GROUNDS (SIC) FIVE
The learned Honourable Justices of the Court of Appeal Jos erred in law and misdirected themselves in holding that –
‘The appellant will not be liable on a mere suspicion that the respondent burnt his motor vehicle, what the appellant did was to put the police on enquiry to track the culprit. He was not actively responsible or instrumental in setting the law in motion,’
Where in law’ where a person makes a complaint against another it is incumbent (sic) upon that person to have found the true facts before making the complaint.’ See Seton v. Oshinbule (1949) 19 NLR 9, and wrongly held that-
‘In the instant case the defendant had reasonable grounds for honestly believing that the plaintiff burnt his vehicle and the action therefore fails.’
PARTICULARS OF ERRORS (SIC) IN LAW
(i) The proceedings complained of were instituted in a malicious (sic) spirit, from indirect and improper motive, and not in furtherance of justice. In Abrath v. North Eastern Railway Co. (1983) LR 11 QBD 440.
(ii) The Respondent did suspect/report that the appellant with others unknown conspired to have set and burnt his vehicle to the police without reasonable and probable cause and honest belief as the Respondent nor anybody at all did not see the appellant set the said vehicle ablaze.”
Now, although it is subsection 3 of section 213 of the 1979 Constitution (as amended) that falls to be considered in this appeal, I think it is desirable to set down also subsections 1, and 2(a) of section 213 (as amended) in order to appreciate the authoritative pronouncements derived from the decisions of this Court on the meaning and effect of the provisions of subsection 3 of section 213.
213(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal
(3) Subject to the provisions of subsection (2) of this section, an appeal shall be from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.
(4) . ………………………………..
(5) . ………………………………..
(6) . ………………………………..
It is clear from a perusal of subsection (1) of Section 213 that it is only the Supreme Court that is competent to hear appeals from the Court of Appeal. See Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283 at 293. Having made that observation, I will now examine the provisions of section 213(3) of the 1979 Constitution. In this con, it is I think useful to refer to the judgment of Nnaemeka Agu, JSC in Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718; (1987) NSCC 1219 at 1234, where he analyzed the provisions of subsections 2 and 3 of the 1979 Constitution (as amended), thus:-
“Subsection (2) of course, specifies five categories of cases in which an appeal shall lie as of right from decisions of the Court of Appeal to the Supreme Court. Interpreting the above provision, the Supreme Court in the case of S.U. Ojenten & Ors. v. His Highness Williams O. Momodu II (The Ogirrua of Irrua) & Ors. (1983) 1 SCNJ 188, at page 203, stated at page 203, thus:-
‘The phrase “an appeal shall lie from the decisions of the Federal (sic) Court of Appeal to the Supreme court as of right”, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal (sic) Court of Appeal in the Supreme Court on grounds which involve questions of law alone. On the other hand, the provision that an “appeal shall lie… to the Supreme Court with leave of the Federal (sic) Court of Appeal or Supreme Court” implies that only the right to apply to the Federal Court of Appeal or Supreme Court for leave to appeal is conferred by the Constitutions on the aggrieved party. “Leave” in this con means permission. (See Webster’s New Twentieth Century Dictionary Unabridged). It is the courts i.e. the Federal (sic) Court of Appeal and the Supreme Court that are given the power to grant the permission to aggrieved persons to appeal in this class of cases falling outside those which are within section 213(2)(a) of the Constitution.”
It is therefore clear that the Court has no jurisdiction to entertain an appeal on a ground of fact or of mixed law and facts unless, of course, leave has been obtained. This point has been emphasized in a number of recent decisions. It is enough to refer only to the following:- Oluwole v. Lagos State Development Property Corporation (1988) 5 SC 1; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 at pages 176-188; and J.B. Ogbechie & Ors. v. Gabriel Onochie & Ors. (No.1) (1986) 2 NWLR (Pt.23) 484. One obvious result of this state of the law is that where an appellant’s grounds of appeal are only of facts or mixed law and facts, the grounds, and hence the appeal must be struck out unless leave had been obtained. On the other hand, where no leave had been obtained and some of the grounds are of law and other are competent. All grounds of fact or mixed law and fact must be struck out.
It is therefore clear from what I have stated above, that where an appellant’s grounds of appeal are only of fact or mixed law and fact, the grounds and hence the appeal must be struck out, unless leave had been obtained, either from the Court of Appeal, or this Court. In the instant case, and as I have said earlier, the Respondent’s objection to this appeal is that the appellant’s ground of appeal are of fact or mixed law and fact, and that he had not been granted the requisite leave under the provisions of subsection 3 of section 213 of the 1979 Constitution (as amended to prosecute the appeal. I would now consider whether appellant’s grounds of appeal which I have earlier reproduced are incompetent as claimed by the respondent. But before deciding whether they are incompetent as alleged, it is necessary to identify the principles that should guide a Court in its determination of that question. In that regard, it has been held that where in effect, the Court, is being invited under the ground of appeal to investigate the existence or otherwise of certain facts upon which the award of damages to the respondents was allegedly based, such a ground of appeal without doubt, is a ground of mixed law and fact. So too, a ground of appeal which challenges the findings of fact made by the court below or involves issue of law and fact can only be validly argued with the leave of either the Court of Appeal or the Supreme Court. See Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 267; Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90; Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484; Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299. Arowolo v. Adimula (1991) 8 NWLR (Pt. 212) 753.
It must be noted that in all these cases and other cases bearing on this point, the exercise is undertaken not only to determine whether an appellant’s grounds of appeal are of fact or of mixed law and fact, but also whether some or all of them are grounds of law. Where any of the grounds of appeal are determined to be grounds of law, then the appeal could be saved by virtue of the provisions of subsection 2(a) of section 213 of the Constitution of Nigeria 1979 (as amended). In view of the fact that the life of an appeal to this court could be extinguished peremptorily because of the nature of the grounds of appeal filed by an appellant, the judgment of this Court are replete with the reasons that have been given for determining the competency of grounds of appeal filed to this Court having regard to the law, namely, the provisions of section 213 of the 1979 Constitution (as amended).
In this connection, may I refer again to Ogbechie v. Onochie (supra) where Eso J.S.C. dealing with the approach to the determination of whether a ground of appeal is a ground of law or a ground of mixed law and fact or fact, said at page 491, thus:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
See U.B.A. v. GMBH (1989) 3 NWLR (Pt.110) 374 at 391 to 392, where Obaseki, JSC, quoted the pronouncement of Eso, JSC referred to (supra). See also Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.531) at 548.
Having identified the approach and the underlying principles that have been guiding this Court in the determination of whether a ground of appeal is competent or not, pursuant to the provisions of section 213(3) of the Constitution of Nigeria (1979) (as amended) what remains is for me to consider the grounds of appeal filed in the instant appeal.
A careful examination by me of ground one of the appellant’s ground of appeal shows that the appellant is therein complaining about the general appraisal of the evidence led at the trial. It seems to me that the complaint is mainly based on facts. In ground two, the appellant’s complaint began with the assertion that the learned Justices of the Court of Appeal erred in law when they dismissed the appellant’s case as having not been proved before the trial Court, and that the police and not the respondent caused appellant’s arrest, detention, imprisonment and prosecution. This was followed by four paragraphs containing what were described as errors in law and misdirection. After a close study of this ground and its particulars, it is manifest that this Court would have to re-examine the facts that formed the basis of the complaint of the appellant and of the facts found at the trial and which formed the basis of the judgment. The ground, therefore, is not a ground of law simpliciter. It is in my respectful view a ground of mixed law and fact, and I so hold. I have read and re-read ground 3 of the appellant’s grounds of appeal and I must confess that its true purport eludes me. Apart from the allegation that the learned Justices of the Court of Appeal erred in law and misdirected themselves, the remaining part of it is an admixture of various facts and allegations. In the end, all that can be said of this ground is that the appellant would want a re-examination of record of proceedings. Ground 3, is in my view, a classic example of how not to draft a ground of appeal. It is, however, my respectful view that at best, this ground may be classified as one of mixed law and fact. It is also manifest that though the appellant has alleged in grounds 4 and 5 that the learned Justices of the Court of Appeal erred in law and misdirected themselves, the real attack of the appeal in respect of these grounds of appeal is aimed at the facts that formed the basis of the judgment of the Court below. In effect, the appellant would want this Court to re-evaluate and reconsider the facts as found by the trial Court and which had been upheld by the Court below.
It is therefore my view that these two grounds, namely grounds 4 and 5 of the grounds of appeal must be regarded at best, as grounds of mixed law and fact.
It follows from what I have said above that all the grounds of appeal filed by the appellant are certainly not grounds of law. They are either grounds of fact or of mixed law and fact and they cannot therefore be competent grounds of appeal unless the appellant had obtained the requisite leave of this Court or that of the Court of Appeal. As it is common ground that in the instant appeal, the appellant had not sought and obtained the leave of this Court or the Court of Appeal, the grounds of appeal so filed are incompetent.
As the grounds of appeal of the appellant are incompetent it follows that the appellant has no valid appeal before this Court. This appeal must therefore be struck out upon the preliminary objection of the respondent, though it was raised in the respondent’s brief. Ordinarily, a respondent by Order 2 Rule 9 of the Rules of this Court could give notice of a preliminary objection to the hearing of the appeal and shall also give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time. Admittedly, the respondent did not bring notice of this preliminary objection to the appellant in accordance with the provisions of Order 2 Rules 9 of the Rule of this Court. His failure to do so would not render ineffective the notice of his preliminary objection. Such a situation arose in Ajide v. Kelani (1985) 3 NWLR (Pt.12) 240; (1985) 2 NSCC 1298 where Bello, JSC (as he then was) explained the reasons for the rule at P. 1396 when His Lordship said:-
“The object of the rule is to give an appellant before the hearing of his appeal notice and grounds of any preliminary objection to the hearing of the appeal in order to enable him to meet the objection at the hearing of the appeal. The rule is a safeguard against embarrassing an appellant and taking him by surprise. Although no form has been prescribed for taking a preliminary objection under the rule, the fact that the rule requires the notice and the grounds of objection to be filed with the Registrar implies that the notice and the grounds of objection must be in writing.”
His Lordship, Bello JSC, then went further to uphold the submission of Chief Williams that he had complied with Order 2 Rule 9 by including the Respondent’s preliminary objection in the respondent’s brief.
In the instant appeal, the appellant was duly served with the respondents brief and which clearly included the notice of the respondent’s preliminary objection to the appeal. He did not react to this notice, and in my respectful view he cannot be heard to complain that the appeal has been determined upon the ground set out in the respondent’s notice of preliminary objection that was included in the respondent’s brief.
In the result as I have found that the appellant’s grounds of appeal are incompetent, it follows inexorably that the appeal is not valid, and it is hereby struck out.
The respondent is awarded costs in the sum of N10,000.00 only.