Wada Shie V. Ujiiji Lokoja (1998)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A.

This is an appeal against the judgment of Benue State High Court sitting at Vanderkya in its appellate jurisdiction. The appellant who was the plaintiff at the Grade II Area Court, Ihugh brought an action against the defendant/respondent claiming a piece of land at Mbakyou and an injunction restraining the defendant/respondent from further working on the land. On 10/5/89 the Grade II Area Court entered judgment in favour of the plaintiff/appellant.

The defendant aggrieved with the said judgment appealed to the High Court and on 13/10/93 the High Court sitting in its appellate jurisdiction at Vandeikya allowed the appeal and dismissed the plaintiff/appellant’s claims.

Dissatisfied with that decision, the appellant has appealed to this court. Both the parties filed their Briefs of argument in accordance with the rules of this court.

In the appellant’s brief of argument, only the issue was identified for the determination of this appeal and it reads:-

1. Whether the identity of the land was in dispute between the parties?

and if it was not, was the High Court justified in reversing the judgment of the Grade II Area Court on the ground?

The respondent in his brief of argument did not formulate any issue for determination by the court but rather adopted the only issue adumbrated in the appellant’s brief of argument. However, the respondent filed a Notice of Preliminary Objection on the ground that the appellant’s appeal is incompetent because being a decision of Benue Stale High Court sitting on an appeal that the appellant ought to have obtained the leave either of the lower court or this Honourable court before filing the Notice and Grounds of Appeal. It was argued that no such leave was obtained by the appellant before he filed his Notice and Ground of Appeal. It was then submitted that the appellant failed to comply with the provisions of Section 221(1) of the 1979 Constitution and that the appeal is incompetent.

In the respondent’s Brief, it is submitted that the right of appeal is regulated by the 1979 Constitution of the Federal Republic of Nigeria and that the relevant sections are Section 220(1)(a) and (b) and that under Section 220(1)(b) that the right of appeal remains unfettered if the complaint against the judgment is the one premised on a ground of law where High Court is sitting in its appellate jurisdiction as in the instant case or the judgment is interlocutory in nature.

It is further submitted that the ground of appeal filed in this matter is a ground of law and that the appellant does not require any leave to appeal. Section 220(1) of the 1979 Constitution of Federal Republic of Nigeria states:-

220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in the following cases-

(a) final decisions in any civil or criminal proceedings before the High Court sitting at first instance;

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.

It can be seen from the foregoing that under subsection (a) above that an appeal lies as of right to the Court of Appeal against final decisions in any civil or criminal proceedings before the High Court sitting at first instance and under subsection (b), there is a right of appeal when the grounds of appeal involves questions of law alone in decisions in any civil or criminal proceedings. No doubt subsection (b) confers on a litigant an unfettered right of appeal as the complaint against the judgment is premised on a ground of law. Where the ground of appeal complains of facts or mixed law and facts, leave to appeal is required and this is covered by Section 221(1) of the 1979 Constitution. See: Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503; Oje v. Babalola (1987) 4 NWLR (Pt. 64) 208. It therefore follows that the appellant will have a right of appeal if the ground of appeal is promised on law alone. The appellant filed only one ground of appeal which is at pp. 75 and 76 of the record of proceedings and it reads:-

The learned Justice of the High Court an appeal erred in law by making the order of dismissal of the appellant’s claim on the basis that the land appellant was claiming was not properly identified and described with certainty when they held as follows: