Ikponmwen V. Asemota & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED LAWAL GARBA, J.S.C.
This appeal is against the decision of the Lagos Division of the Court of Appeal (lower Court) contained in the judgment delivered on the 14th May, 2015 by which the judgment of the Lagos State High Court entered against the Appellant, was affirmed.
There are seven (7) grounds of dissatisfaction with the decision by the lower Court as contained on the Notice of Appeal dated 10th but filed on the 11th August, 2015 (which appears at pages 778 – 783 of vol. 11 of the Record of Appeal) and in line with the requirements or the Rules of the Court, learned counsel for the parties filed briefs of argument for the prosecution of the appeal.
The Appellant’s Brief was filed on 9th February, 2016, deemed on 30th November, 2018, wherein the following issues are set out for determination by the Court:-
“3.1 ISSUE ONE: Where the lower Court was right to hold that the omission of the trial Court to pronounce on Issue One in the final written address of the Appellant did not occasion a miscarriage of justice. (Ground One).
3.2 ISSUE TWO: Where the lower Court was right to hold that the Respondents’ claim was not based on partnership simpliciter. (Grounds Two and Seven)
3.3 ISSUE THREE: Whether the lower Court was right to uphold the reliefs granted by the trial Court. (Grounds Three, Four and Six).
3.4 ISSUE FOUR: Whether the lower Court was right when it affirmed the finding of the trial Court to the effect that the Appellant and the Respondents did not reach any agreement on the amount to be paid, as professional fees, by the Appellant to the Respondents. (Ground Five).”
The Respondents’ Brief was filed on the 5th April, 2016, also deemed on the 30th November, 2016 and at paragraph 3.03 on page 7, the above issues are adopted.
Learned counsel for the parties adopted the briefs in support of their respective positions at the oral hearing of the appeal in Court on the 12th October, 2021 and judgment was reserved.
Before a consideration of the arguments canvassed in the briefs, I would like to carefully take a close look at the grounds of the appeal as shown on the Notice of Appeal which was filed as of right in order to be satisfied that the Court is properly seized of the requisite constitutional jurisdiction to entertain and adjudicate over the appeal, in view of the provisions of Section 233 (2) (a) and (3) of the Constitution (as amended). They provide that:-
“(2) An appeal shall lie from decision 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 lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
The grounds of the appeal should speak for themselves in details and here they are:-
“GROUND ONE: MISDIRECTI0N IN LAW
The lower Court misdirected itself in law when it held thus:
“I believe that the lower Court ought to have pronounced on it one way or the other having been raised in the written address of the appellant. I am all the same of the humble view that given the exhaustive manner the parties’ case was addressed by the lower Court the omission to pronounce on the issue did not occasion a miscarriage of justice, moreso that the two issues reformulated by the said Court properly and fully determined the dispute between the parties.
Particulars of misdirection
(i) The lower Court was approbating and reprobating at the same time.
(ii) The issue that the trial Court failed to pronounce on was: whether the Respondents’ case disclosed a cause of action against the Appellant.
(iii) The Appellant also argued this issue under Issue One in his Final Written Address.
(iv) The issues reformulated by the trial Court did not properly and fully dismissal of the Respondents’ case at the trial Court.
(v) The failure of the trial and lower Courts to pronounce on the issue has not only breached the Appellant’s right to fair hearing, but has also occasioned a miscarriage of justice.
GROUND TWO: ERROR IN LAW
The lower Court erred in when it held that the Respondents’ Claim was not based on partnership simpliciter but also on the fact that the Appellant invited the Respondents to form part of the prosecution team at the General Court Marshal (GCM).
Particulars of Error
(i) The Respondents’ pleadings and reliefs were consistent with partnership simpliciter.
(ii) The Respondents did not present two inconsistent set of facts in their pleadings.
GROUND THREE: ERROR IN LAW
The lower Court erred in law when it held that the reliefs granted by the trial Court fall under the alternative claims of the Respondents.
Particulars of Error
(i) The alternative claims of the Respondents were like the principal claim, also based on an alleged partnership relationship with the Appellant.
(ii) The reliefs granted by the trial Court did not fall under the alternative claims of the Respondent.
GROUND FOUR: ERROR IN LAW
The lower Court erred in law by holding that the reliefs granted by the trial Court are supported by the Respondents’ pleadings and evidence.
Particulars
(i) The Respondents never pleaded nor claimed the reliefs granted by the trial Court.
(ii) The Respondents did not give any evidence to support the reliefs granted by the trial Court.
GROUND FIVE: ERROR IN LAW
The lower Court erred in law when it affirmed the finding of the trial Court to the effect that the Appellant did not reach any agreement on the issue of the amount to be paid, as professional fees by the Appellant to the Respondents.
Particulars
(i) The Appellant reached an agreement with the Respondents on the issue of their professional fees.
(ii) The issue of the professional fees of the Respondents was settled on the strength of exhibit C10 (the Appellant’s letter to the Respondents, dated 18th November, 2004).
(iii) The Appellant paid the Respondents Three Hundred Thousand Naira (N300,000.00) each.
(iv) The final agreement between the Appellant and the Respondents, on their professional fees was no longer tied to what the Nigerian Navy was going to pay the Appellant.
GROUND SEVEN: ERROR IN LAW
The lower Court violated the Appellant’s right to fair hearing, when it held that the Respondents were entitled to be paid on the basis of quantum meruit.
Particulars of Error
(i) The Respondents did not at any time base their claim/case on quantum meruit.
(ii) The Appellant was never heard at any time on quantum meruit.
(iii) Quantum meruit was never raised by any party or argued either at the trial Court or lower Court.
(iv) The lower Court raised the issue suo motu, and determined the same, without calling on the parties to address it on the issue.” Perhaps, as foundation, I should restate the law, now firmly established in the appellate Courts, that for the purpose of the exercise of the right of appeal to this Court, it is not the mere label, description, designation or naming of the ground of appeal as one of or error in law that makes the ground in reality, one of law alone which entitles a party or appellant to appeal as of right. The classification, cognomen or label given by a party to a ground or grounds of appeal on the Notice of Appeal does not and will not stop the Court from looking into whether the ground/s is/are actually of law alone or of mixed law and facts or even facts alone. See Obijuru v. Ozims (1985) 2 NWLR (pt. 6) 167, Ejiwunmi v. Costain West Africa, Plc (1998) 12 NWLR 149, Ajuwa v. SPDC (2011) 12, SC (pt. 11) 118, Opuiyo v. Omoniwari (2007) 6 SC, (pt. 1) 35.
The law is also settled, that in order to properly determine the real nature of a ground of appeal, the Court will look at and consider the ground along with the specific particulars set out in support thereof to see what the essence or grouse of the complaint therein is about. See Garuba v. Omokhodion (2011) 6 – 7 SC (pt. V) 89, Anoghalu v. Oraelosi (1999) 3 NWLR (pt. 634) 297, (1999) 10 -12 SC, 1, NNPC v. Famfa Oil Ltd. (2012) LPELR – 7812 (SC) (consolidated), Ogbechie v. Onochie (1986) 1 NSCC, 443, Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718, Odukwe v. Achebe (2008) 1 NWLR (pt. 1067) 40 at 53.
Even though the line of distinction between a ground of pure law alone on the one hand, and a ground of mixed law and facts, on the other hand, is, judicially, admitted to be very thin; see Ogbechie v. Onochie (supra), Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) 531, MDPDT v. Okonkwo (2001) 3 KLR (pt. 117) 739, some guidelines have evolved over the years that are used in the determination of the nature of a ground of appeal. In Akinyemi v. Odu’a Inv. Co. Ltd. (2012) LPELR-8270 (SC) I. T. Muhammad, JSC (now CJN) enumerated the guidelines as follows:-
- Where a ground complains of a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved or admitted, it is a ground of law;
- Where a ground questions the evaluation or facts before the application of the law, it is a ground of mixed law and facts;
- A ground which raises a question of pure fact is certainly a ground of fact;
- Where the lower Court founds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur the ground is that of law;
- Where admissible evidence has been led, the assessment of the evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is of fact;
- Where the lower Court approached the Constitution of a legal term or part in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law;
- Where the lower Court or tribunal applying the law to fact in a process which requires the skill of a trained lawyer, this is a question of law;
- Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of the law, this is a ground of law.
- Where the conclusion of the lower Court is one possible resolution but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law;
- Where a trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of Appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection, is a ground of law, not of fact;
- When Court of Appeal finds such application to be wrong and decides to make it own findings, such findings made by the Court or Appeal are issues of facts and not of law;
- Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground alleging such misdirection by the lower Court of appeal is a ground of law not of facts;
- A ground which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence or witnesses, it is purely a ground of fact.
See also Abidoye v. Alawode (2001) 3 SDC, 1, Oforkire v. Maduike (2003) 1 SC, 1, Board of Customs & Excise v. Barau (1982) 10 SC, 1 Kwara State Water Corp. v. A.I.C. Nig. Ltd. (2009) All FWLR (pt. 485) 1738, B.A.S.F. Nig. Ltd. v. Enith Enl. Ltd. (2010) All FWLR (pt. 518) 840.
As may be observed, Ground One of the Notice of Appeal above, complains of failure by the lower Courts to make a pronouncement on an issue said to have been raised by the Appellant in his Statement of Defence and final address before the trial Court.
This is purely an issue which requires an inquiry into the facts pleaded by the Appellant in statement of defence and then as to whether in fact, the trial Court and the lower Court did not make a pronouncement on it. At best, the complaint in the ground is one of mixed law and facts.
Grounds Two, Three, Four and Five all deal with questions or issues of facts; ground Two on facts or partnership, Ground Three; on the facts for the grant of alternative claims by the Respondents, ground Four on finding of facts that the reliefs granted by the trial Court are supported by Respondents’ pleadings and evidence and ground five on whether or not the parties reached an agreement on the professional fees to be paid to the Respondents by the Appellant. The complaints in all the grounds are on the findings on disputed facts between the parties, the appraisal of such facts, evaluation and inferences drawn therefrom by both the trial and lower Courts.
Viewed in line with the aforenamed guidelines stated by this Court, these grounds are at best, of mixed law and facts and not of pure law alone.
Ground Six complains about the agreement by the lower Court with the finding of fact that the Respondents are entitled to a portion of the Appellant’s fees and accommodation allowance. Clearly, the grouse requires the appraisal of the facts disputed by the parties in order to make the finding as to who, between them is right and that involves appraisal and evaluation of the facts.
Lastly, ground Seven deals with, whether on the facts disputed by the parties, the Respondents are entitled to paid on quantum meruit basis.
Yet again, the question here requires an appraisal and evaluation of the facts on the basis of which the finding was made by trial Court and affirmed by the lower Court. At best, this ground, even though given the coloration of a breach of the Appellant’s right to fair hearing, is one of mixed law and facts.
In consequence of the above nature of all the grounds contained on the Notice of Appeal, Section 233 (3) of the Constitution (as amended) comes into play. Once more, it provides that:-
“Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
Subsection (2) (a) to which the provisions are subjected, provides that an appeal shall lie from the decisions of the lower Court to this Court, as of right, where the ground of appeal involves questions of law alone, in decisions in any civil or criminal proceedings before that Court.
From the nature of the grounds on the Notice of Appeal as demonstrated above, (2) (a) do not apply to make right of appeal one as of right, as provided, since they are shown not to involve questions of law alone.
An appeal is said to be as of right when and where a party dissatisfied with the decision of Court, in civil or criminal proceedings, is vested with the right, power and freedom to initiate or commence the appeal by giving the requisite notice in the required form and within the prescribed period of time, without any hindrance or let. The right to appeal is unfettered so long as it was exercised in accordance with any statutory provisions enacted for the purpose and so prior sanction or permission of Court is not needed for the exercise of the right. See Ojukwu v. Onyeador (1991) 7 NWLR (pt. 203) 286, Iwueke v. Imo Broadcasting Corp. (2005) 10 SC, 19 at 33, Akwaruo v. Anyanwu (2006) All FWLR (pt. 302) 89, UBN, Plc v. Sogunro (2006) All FWLR (pt. 337) 402 at 410-411, Anoghalu v. Oraelosi (1999) 10 SCNJ, 1.
As seen above, the provisions of Subsection (3) says that an appeal shall lie from the decisions of the lower Court to this Court with the leave of either the lower Court or this Court where the ground/grounds involve/s question/s other than of law alone provided for in Subsection (2) (a). An appeal in the circumstances of Subsection (3), is made subject to the leave of either the lower Court or this Court for it to be validly initiated or commenced by the giving/filing of the requisite notice by a party desirous of appealing to the Court. In other words, unlike an appeal as of right under Subsection (2) (a), the exercise of the right of appeal under the provisions of Subsection (3) is subjected, restricted, and subordinated to the requirement of prior permission or sanction of Court, by way of leave, before a valid Notice of Appeal can be given or filed in order to properly invoke and vest the Court with the constitutional jurisdiction to entertain and adjudicate over the appeal. Clearly, the prior leave of Court in such a situation is made a condition precedent to be fulfilled or satisfied in order for an appeal to be valid and competent for the Court to be seized of the jurisdiction to entertain and adjudicate over it. Where such necessary leave of Court was not obtained prior to the filing of a Notice of Appeal, the appeal will be invalid and incompetent for failure to satisfy or fulfil the condition precedent for the exercise of the right of appeal, thereby depriving the Court of the requisite jurisdiction over it. See Kwasau v. Ma’aji (2006) All FWLR (pt. 295) 767, Tiza v. Begha (2005) 5 SC (pt. 11) 1 at 8, Auto Import-Export v. Adebayo (2003) FWLR (pt. 140) 1686, O.T.U. v. ACB, Plc (2008) MJSC, 191, Alamieyeseigha v. C.J.N. (2005) 1 NWLR (pt. 906) 60, SPDCN Ltd. v. Katad Nig. Ltd. (2006) 1 NWLR (pt. 960) 198, Samuel v. Etubi (2011) LPELR- 4200 (CA).
In the case of Yaro v. Arewa Constr. Ltd. (2007) 7 SC (pt. 11) 149, (2007) 17 NWLR (pt. 1063) 333, Chukwuma-Eneh, JSC, in the leading judgment, dealing with the provisions of Subsection (3) of Section 233 of the Constitution, had stated the law that:-
“Appeal to this Court by leave, which otherwise means permission, relate to matters of facts or mixed law and fact for which leave of the Court below or this Court must be obtained as a matter of condition precedent. See Nalsa & Team Associates v. N.N.P.C. (1991) 10 – 12 SC 83; (1991) 8 NWLR (pt. 212) 652 SC. This Court has the responsibility to ensure that the grounds of appeal in respect of the matter before it fall within its constitutional competence. In this regard, therefore, a ground of appeal is not let off the hook simply because it is tagged an error in law. This Court must be satisfied it is so. See Ojemen & 4 Ors. v. Momodu II (1983) 3 SC 173. The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground.” Since a valid Notice of Appeal is a sine qua non to the assumption of jurisdiction by the Court over an appeal; being the originating process used for the purpose of the proper invocation of the requisite judicial power and authority over an appeal, and without which the Court would lack the vires to entertain and adjudicate over the appeal, it is an issue that can be raised at this stage. In NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (pt. 1676) 67 at 92 it was settled by this Court, per M.D. Muhammad, JSC, that:-
“Now, it is beyond contention that the requirement of giving parties the opportunity to address a Court on an issue raised by the Court suo motu is a general rule which, like all others, has exceptions. Decisions of this Court abound specifying these exceptions. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (pt. 1213) 106, Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 and Bola Ominiyi v. Jacob Adegboyega Alabi (2015) LPELR-24399 (SC), (2015) 5 NWLR (pt. 1456) 572. It has been held by this Court, in these decisions, that the principle that whenever a Court raises an issue not within the contemplation of the parties and suo motu, parties should be given a hearing before a decision on the issue so raised, applies mainly to issues of fact and that, in special circumstances, an issue of law or jurisdiction may be raised suo motu and without hearing the parties, decision upon the issue so raised.”
See in addition, Ogar v. Igbe (2019) 9 NWLR (pt. 1678) 534 at 553 (SC), Alims Ltd. v. UBA, Plc (2013) 1 MJSC (pt. 11) 156 at 170, Omokuwajo v. FRN (2013) 9 NWLR (pt. 1359) 300 at 332 (SC), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR, 296, (1985) 6 NCLR, 1.
As stated earlier, the issue of prior leave of Court being a condition precedent to the validity of a ground of appeal raising or involving question/s of mixed law and facts or facts alone, goes to and affects the jurisdiction of the Court to adjudicate over an appeal. Where, as shown before now, an appeal is predicated on grounds of mixed law and facts which require the leave of Court as a condition precedent for their validity and competence and the requisite leave was not obtained, the Notice of Appeal containing such grounds becomes invalid in law and incompetent, thereby depriving the Court of the jurisdiction to entertain and adjudicate on the appeal.
In the foregoing circumstances for being incompetent, the Notice of Appeal dated 10th August, 2015 and filed on the 11th August, 2015, has deprived the Court of the requisite jurisdiction to adjudicate over the appeal and is struck out accordingly. See Obi v. INEC (2007) 7 SC, 268, Oloriode v. Oyebi (1984) SCNLR 390, Adesokan v. Adetunji (1994) 5 NWLR (pt 346) 540, Gombe v. P.W. Nig. Ltd. (1995) 6 NWLR (pt. 402) 402.
Parties shall bear their respective costs of prosecuting the appeal.
SC.809/2015