In The Supreme Court of Nigeria

On Friday, the 2nd day of February 1990

S.C. 251/1985

 

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Chief Justice of Nigeria

Kayode Eso

......

Justice, Supreme Court

   Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Kaibi-Whyte

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

    

Between

 

Metal Construction (West Africa) Ltd

.......

Applicant

 

And

D.A. Migliore & Ors

.......

Respondent

   

 

 

Judgement of the Court

delivered by

Karibi-Whyte. J.S.C.

 

 

The point of law involved in this ruling is for a determination whether the only ground of appeal, filed in this appeal consists of a question of law alone in which case Appellant does not require leave of the Court to appeal to this court. Leave is required if it is otherwise. The solitary ground of appeal under consideration with particulars reads:-

 

The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.

 

Particulars

(1)     The application to set aside the order should have been refused because of the delay of over two months by the Applicant in moving to set it aside.

 

(2)    Upon all the facts before the Court of Appeal, it was evident that Counsel instructed by Messrs. Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985, that service of the Notice of Appeal be upon Messrs. Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules.

 

(3)    The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the Solicitors meant that the Solicitors were compelled to act for the parties involved.

 

A better understanding of the issues and a proper elucidation and analysis of the ground of appeal can only be after appreciating the background and the circumstances which gave rise to the formulation of the ground of appeal.

 

Appellant who was the Plaintiff in the Federal High Court issued out an originating summons dated 23rd December, 1983. The Defendants to this summons are D.A. Migliore, A. Mangili, C. Mangili, T. Okeowo. The affidavit in support of the originating summons was sworn to by T. Okeowo. D. A. Migliore, A. Mangili and C. Mangili are not residents in the country. Plaintiff/Appellant purported to have served Kehinde Sofola & Co., who sometimes were solicitors to the Defendants in another matter. The Defendants were not served personally as required by the Rules of Court. After several appearances by Solicitors in the Chambers of Kehinde Sofola & Co. on behalf of the Defendants, Kehinde Sofola, S.A.N., senior Counsel in the Chambers brought an application seeking to set aside the service on the ground that he had no instruction from the Defendants to appear for them. The learned Chief Judge of the Federal High Court on the 18th December, 1984, granted the application and held that service upon the Chambers of Kehinde Sofola & Co. solicitors was not proper service on the 1st, 2nd and 3rd Defendants. Appellant appealed to the Court of Appeal against the ruling setting aside the service of the originating summons on Kehinde Sofola & Co. Solicitors.

 

When the matter came up in the Court of Appeal, on the 11th March, 1985 the learned presiding Justice (P Nnaemeka-Agu, J.C.A. as he then was) (but now of this Court) observed and drew attention of Appellant's counsel to the fact that the substantive defendants had not been served with the originating summons. The Appeal was accordingly adjourned to the 17th April, 1985 to enable counsel to the Appellants to consider his position. It was also observed that as on the subsisting order of court, they, are not being represented by Mr. Sofola & his firm."They" referred to the Defendants in the originating summons.

 

On the 17th April, 1985, with P. Nnaemeka-Agu, J.C.A., as a member of the panel, but Ademola, J.C.A. presiding, the court received a letter from Messrs. Sofola & Co., that they had no instruction from the Defendants, to represent them. Miss Ogundare from the same Chambers confirmed. Without any argument on the appeal, the Court made the following Order.

 

The papers and Motion filed by the applicant be now served on Miss Ogundare of Messrs. K. Sofola & Co. Solicitors, to be forwarded by the said Solicitors to the 1st, 2nd & 3rd Respondents and upon this being done, the Solicitors should inform this court about such service on the Respondent. Application adjourned sine die.

 

This is the order of the 17th April, 1985.

 

In a motion dated 21st June, 1985 which was moved on the 9th July, 1985, Miss Ogundare sought for an Order setting aside the order made by the Court of Appeal on the 17th April, 1985, directing that the Motion and papers filed in this appeal be served on the Applicant as solicitor acting for the 1st, 2nd and 3rd. Respondents herein.

Applicants swore to and relied on averments in their supporting affidavit. Paragraphs 3, 4, 5, and 9 of the affidavit which are instructive and important are as follows

 

(3)    That Messrs Kehinde Sofola and Company had acted for the above-named 1st, 2nd and 3rd Respondents in other matters upon their specific instructions.

 

(4)    That Messrs. Kehinde Sofola and Company have received no instructions in this matter, neither have they received remuneration in respect thereof.

 

(5)    That Messrs. Kehinde Sofola & Company are not in charge of this matter and are not in any way responsible for the conduct of the case

 

(9)    That I do not know the present addresses of the 1st, 2nd, 3rd Respondents or any of them and nobody in our Chambers knows their addresses or whereabout.

 

Several Exhibits were attached to the affidavit. Appellant filed a counter affidavit. Applicants filed a reply. In a considered ruling read by Kolawole, J.C.A., dated the 10th July, 1985 the Court of Appeal, Uthman Mohammed, Presiding, with Kutigi, all agreeing, granted the application and set aside the ruling of the Court dated 17th April, 1985.

 

The Appeal before this Court is against the ruling of the 17th July, 1985.

 

I have already set out the only ground of Appeal filed by appellant against the ruling. The question before us is whether the ground of appeal relied upon by the Appellant in this appeal is competent. This has arisen following the notice by the applicant/respondent dated the 7th day of December, 1988 of intention to raise a preliminary objection that the appeal is incompetent and should be struck out in that the only ground of appeal cannot be sustained in law. The grounds relied upon by the applicant are that

 

(1)    The order, the subject matter of the Appeal, is an interlocutory order and the sole ground of appeal is not based on law alone.

 

(2)    Leave to appeal against the said order pursuant to S.213(3) of the Constitution of the Federal Republic of Nigeria 1979 has been sought and refused by this Honourable Court on the 14th day of May, 1986.

 

It is important to restate, for emphasis, that the real grievance of the Appellant is that the Court of Appeal set aside its own order MADE ON THE 17th April 1985 wherein it ordered that the motion papers and other processes in the appeal against the ruling of the judgment of the Federal High Court be served on Messrs. Kehinde Sofola & Co. and to constitute service on the 1st, 2nd and 3rd Defendants in the Originating summons taken out by the Plaintiff.

 

The dominant concept in the contention is a ground of Appeal. What then is a ground of Appeal? I consider it presumptuous, but will still venture to define a ground of appeal as consisting of the error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside. It is true that all questions which arise for consideration and determination before the court fall within the two broad categories of questions of law and questions of fact. There is however a third category which is a hybrid of the two and are referred to as mixed law and fact.

 

These terms are ambiguous and possess more than one meaning. It is their ambivalence that makes it difficult, despite valiant judicial attempts at classification and categorisation, to draw uniform rules for distinguishing between questions of law and questions of fact. As a recognition of the importance and relevance of this distinction in the appellate judicial process, the Constitution of the Federal Republic of Nigeria 1979 has made provision for the exercise of the right of appeal in those cases where the ground of appeal relied upon is found on (a) law alone and (b) on mixed law and facts or on facts simpliciter. Whereas appellant can exercise his right of appeal to this court without leave of the court and as of right, where the ground of appeal is on law alone and whether the decision is interlocutory or final, See S.213(2)(a) the amplitude of the exercise of the right of appeal is limited in all other cases, see S.213(3)-See Oluwole v. L.S.D.P.C. (1983) 5 S.C.l State v. Omeh (1983) 5 S.C. 20. In such other cases involving the exercise of right of appeal on grounds of mixed law and facts or on facts, leave of the Court of Appeal or of this court is required - See Nwadike v. lbekwe (1987) N.W.L.R. (Pt. 67) 718, Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484, Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5, Ojemen V. Momodu 11 (1983)1 SCNLR 188; Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt. 6)167.

 

The difficulty of appellants formulating grounds of appeal falling within either of these categories as required, as the case may be, has been the gordian knot of counsel drafting grounds of appeal. This has been subject matter of several judicial decisions in our Courts. See Ojemen V. Momodu 11 (supra); Oghechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484; Ige v. Olunloyo (1984)1 SCNLR 158, Oke v. Eke (1982)12 S.C. 218. Counsel to the applicant has filed a very helpful brief of argument in support of his preliminary objection. The respondent to this preliminary objection was content with a one page brief which has assumed without argument that the ground of appeal challenged is unarguably a ground of law.

Kayode Sofola for the applicant has pointed out, and correctly too that Respondent had earlier applied, relying on the same ground of appeal now challenged, for leave to appeal to this court. The application was refused on the 16th May, 1986.

 

The attitude of counsel to the Respondent would seem to me to be that the character of the ground of appeal, whether it is one of law alone or one of fact, would depend upon the label he has chosen to give to it. Our courts have consistently and clearly decided the contrary - See Ojemen v. Momodu 11 (supra), Nwadike v. Ibekwe (supra).

 

I shall here adopt the illuminating dictum of Nnaemeka-Agu, J.S.C., in Nwadike v. Ibekwe (supra) at p. 743 where he said,

 

...it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by christenmg it 'error of  law' or ' misdirection in law'.

 

See also Agbaje, J.S.C., at p. 729 and Obaseki, J.S.C. in Ojemen v. Momodu II (supra) at p. 211. I am afraid the stratagem of counsel for the appellant in this appeal appears to suggest just that. The rejected application for leave to appeal on the same grounds has now been put forward as a ground of law not requiring leave. It is therefore pertinent to examine the phrases: "a question of law" and "a question of fact." It is the confusion in determining the line of distinction between the concepts that renders distinguishing obscure and difficult. It is not a subject matter for argument that conclusions of law are supported by inferences from facts. Generally considered, the term question of law" is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law.

The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning.

 

The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.

 

Now turning to what is a question of fact? It is easy to postulate that it is anything which falls outside the meaning of question of  law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.

 

A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.

 

Salmond has pointed out that

 

The sphere of judicial discretion includes all questions as to what is right, just, equitable, or reasonable-so far as not pre-determined by authoritative rules of law but committed to the liberum arbitrium of the courts. A question of judicial discretion pertains to the sphere of right, as opposed to that of fact in the strict sense. It is a question as to what ought to be, as opposed to a question of what is. Matters of fact are capable of proof, and are subject of evidence adduced for that purpose. Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the Court. In determining questions of  fact the court is seeking ascertain the truth of the matter, in determining questions of judicial discretion it seeks to discover the right or justice of the matter.

 

See Jurisprudence Tenth Ed. (1947) p.69.

 

There is therefore again the distinction between questions of fact, question of the exercise of judicial discretion. In a broader sense there is much difference whether an act is right, or just or reasonable or whether act has been done. The former is merely an exercise of moral judgment expression of opinion on the facts admitted and is therefore differenti~ from the fact simpliciter. It is nevertheless a question of fact with the exercise of discretion. In Griffiths v. J.P. Harrison(Watford) Ltd. (1963) A.C. 1 at p.19 Lord Denning expressed it succinctly thus:-

 

Reasonable people on the same facts may reasonably come to different conclusion, and often do Juries. So do Judges. And are they not all reasonable men?

 

It has therefore been recognised that these more or less discretionary questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of fact. A finding of fact has been defined as an assertion that a phenomenon exists, has existed or will exist independent of any assertion to its legal effect-See Louis Jaffe-Judicia1 Control of Administrative Action, p.548. It is therefore different from questions of law which are determined by authoritative legal principles.

 

Every determination of a court consists of finding of facts. There is the primary finding from which inferences the court comes to its ultimate decision. This ultimate finding from inferences from the primary findings of fact may result in conclusions of law or fact or both.

 

I shall now turn to analyse the ground of appeal to consider whether as claimed by the Appellant it consists of a ground of law alone. I have already stated in this ruling that a ground of appeal is the allegation of error of law or fact made by the appellant on which it is relied to set aside the decision. Where a ground of appeal alleges error in law, as in the instant case, Order 8 rule 2(2) RSC 1985 stipulates that the particulars of error shall be clearly stated. Thus in determining the nature of the challenge of the judgment it is relevant and crucial to construe the ground of appeal together with the particulars of error alleged.

 

In his brief of argument which he adopted in his oral argument before us, Chief Williams, S.A.N., learned Senior Counsel to the Appellants submitted that the particulars of error raise issues of law alone. He submitted that the facts set down under item 1, do not cover any fact which is in dispute. Chief Williams pointed out that the order which was subsequently set aside was made on the 17th April, 1985, when a representative of K. Sofola & Co. who was ordered to forward papers and motion was in court. He pointed out that the motion to set aside the order was not made until 25.6.85.

 

It was also submitted that item 2 of the particulars are matters of record and involve no conflict of testimony. Item 3 raises a pure issue of law.

 

At the risk of being tedious and repetitive, but in the interest of clarity, I shall reproduce each of the particulars which are clearly relevant to my consideration of this preliminary objection.

 

Particular 1 is that

 

The application to set aside the order should have been refused because of the delay of over two months by the Applicant in moving to set it aside.

 

In his submission Kayode Sofola contended that the above particulars is at best a question of mixed law and fact in that it addresses the weight that should be attached to the issue of delay of over two months in considering whether or not to set aside the order.

 

It seems to me that Chief Williams has relied entirely on the consideration that because the period of over two months before the application was presented to set aside the ruling is undisputed the conclusion flowing from the exercise of discretion upon those facts must of necessity be one of law. Counsel however ignored the consideration that the lack of uniformity in weight which two different persons can attach to the period of two months period which are undisputed, may be different, considering the fact also that there is no predetermined authoritative principles governing the conclusion that must be drawn from the delay. Counsel also ignored the fact that the Court was exercising a discretion and was at liberty to take relevant circumstances surrounding the period of delay into consideration. The exercise of discretion involves discordant expression of opinion between reasonable people seised with the same facts. It is impossible in the situation to lay down any principle of law because none exists that can solve the problem. A question of this kind is a question of fact, at best one of mixed law and fact. See R. v. Industrial Injuries Commissioner (1966)1 All E.R. at p. 106, See Ogbechie v. Onochie (1986) 3 S.C. 54 at p.56, (1986) 2 N.W.L.R. (Pt. 23) 484.

 

I do not think that in every case where the facts in issue is undisputed the inevitable inference will result in a question of law. Undisputed facts will lead to a question of law where there are authoritative predetermined rules of law which govern the conclusion from such facts. The court was not in the instant case bound on the facts before it, to answer the question entirely in accordance with any rule of law. It is entitled to bring its moral judgment to bear on the question and to determine the matter according to the justice of the situation.

 

It is pertinent to observe that the particulars of error alleged did not complain of a failure to apply the correct principles of law, or that the court has come to a conclusion on the admitted or proved facts which no reasonable tribunal would have come to - See Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130. If a Judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising his discretion on wrong principles and this will be a question of law.

 

The setting aside of own decision involves the exercise of judicial discretion which follows established principles. The chief objective for the exercise of this judicial discretion is to avoid injustice to the party who would be prejudiced from the effect of the irregular decision - See Evans v. Bartlam (1937) 2 All E.R. 646. There is no doubt therefore that the question involved in such a ground of appeal is not only one of law, but an issue of law coupled with the exercise of discretion. There is the question of law in the observance of the judicial principles to be followed in the setting aside of own decision, and the exercise of discretion in the factors to be taken into account and what weight to attach to the length and circumstances of delay in considering the application to set aside the decision - See Ifediorah V. Ume (1988) 2 N.W.L.R. (Pt. 74) U.B.A. Ltd. V. Gmbh (1989) 3 N.W.L.R.(Pt. 110) 374. There is no doubt length of delay is a question of fact. But the reasonableness in presenting the application to set aside the decision is a matter of opinion in the light of the other circumstances surrounding the app1ication.

 

Particular 2 is as follows:-

 

(2)     Upon all the facts before the Court of Appeal, it was evident that Counsel instructed by Messrs. Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili and C.  Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order as it did on 17th April, 1985, that service of the Notice of Appeal be upon Messrs. Kehinde Sofola & Co. in accordance with the provisions of the Court of Appeal Rights.

 

Chief Williams's submission on the above particulars is that there was no conflicts of testimony and accordingly the inference is that it raises a question law. This is a non sequitur. No inference from the facts is governed by a predetermined authoritative rule of law. Neither is the conclusion flowing from rules which the court must follow - See Ashbridge Investments Ltd. v. Minister of Housing & Local Govt. (1965) 3 All E.R. 371, 373. 1 agree with submission of Mr. Kayode Sofola that the particulars in item 2 is predicated upon facts and the assessment of same. The contention is that Mssrs. kehinde Sofola & Co. appeared on behalf of the Defendants on the assumption that they would be instructed to appear for the Defendants as they had in an earlier case. They were however never instructed and could not represent the Defendants. This was the subject matter of disagreement, and remained disputed. Kehinde Sofola & Co. contended that they were not instructed to appear for the Defendants and were therefore not appearing for the 1St, 2nd and 3rd Defendants. These are questions of fact. Thus the Court having discovered that its decision was irregular and that service of Notice of Appeal upon Messrs. Kehinde Sofola & Co. in respect of the I St, 2nd & 3rd Respondents was not regular in accordance with the rules and therefore did not constitute service on the Defendants, exercised its discretion to set aside the irregular decision.-See Evans v. Bartlam (1937) A.C. 473. It seems to me the exercise of the discretion was after evaluation of the evidence and assessment of the facts, and it was right and in the interest of justice to set aside the irregular decision. This is also a question of mixed law and fact. It is clearly on my analysis of the particulars in my opinion, not a question of law.

 

Particular 3

 

(3)    The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the Solicitors meant that the Solicitors were compelled to act for the parties involved.

 

It was the submission of Chief Williams that this raises a pure issue of law. I agree entirely with Kayode Sofola's submission on this that the particulars is not related to the subject matter of the ruling.

 

The subject matter of the ruling appealed against is the setting aside of a ruling which ordered service of a motion and relevant papers of the appeal on Kehinde Sofola & Co. The observation that the mere fact that service was directed to be effected on Solicitors meant that the Solicitors were compelled to act for the parties involved was not the ground for setting aside the ruling. I therefore agree with the submission of Kayode Sofola that it is irrelevant to the ruling challenged or the reason for the decision.

 

On analysis of the solitary ground of appeal and the particulars of error alleged, it is obvious that the ground of appeal was merely couched and so christened a ground of law to give it the semblance of a ground of law. It consists of particulars which disclose that the ground involves questions of mixed law and fact. It has raised before this court the question whether in setting aside its own decision the Court below was right in its determination of the truth of the matter, and to discover the right or justice of the matter, which are questions of fact and not whether it is governed by predetermined authoritative rules of law which is a question of law. The particulars analysed above fall within the test propounded by Kayode Eso, J.S.C., in Ogbechie & Ors v. Onochie & Ors. (supra) at pp.491-492 that where,

 

. . . the grounds of appeal 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.

 

On the above test since the two relevant particulars 1 and 2 question the evaluation of the admitted facts before the application of the law, the sole ground of appeal can only but be a ground of mixed law and fact. It is a ground which requires leave of the Court in accordance with section 213(3) of the Constitution 1979. The relevant leave having not been obtained the ground of appeal is incompetent and is accordingly struck out.

 

The preliminary objection is accordingly sustained.

 

Appellant/Respondent shall pay the sum of N50 as cost to the Applicant.

 

 

Judgment delivered by 

Obaseki, J.S.C.

 

The appellant herein in this notice of appeal filed in the Court of Appeal in pursuance of the intention to appeal to this Court from the decision of the Court of Appeal set out one ground of appeal as the only ground on which the appellant company desires to challenge the decision of the Court of Appeal. That ground of appeal reads:

 

The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.

 

Particulars

 

(1)    The application to set aside the order should have been refused because of the delay of over two months by the applicant moving to set it aside.

 

(2     Upon all the facts before the Court of Appeal, it was evident that counsel instructed by Messrs Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985 that service of the notice of appeal be upon Messrs Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules:

 

(3)    The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the solicitors meant that the solicitors were compelled to act for the parties involved."

 

On the 7th day of December, 1988, learned counsel representing the applicant filed a notice of preliminary objection, his objection being:

 

that the appeal is incompetent and that it should be struck out in that the solitary ground of appeal cannot be sustained in law.

 

The grounds of the objection set out in the notice are that

 

(1)      the order, the subject matter of this appeal, is an interlocutory order and the sole ground of appeal is not based on law alone.

 

(2)      Leave to appeal against the said order pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria 1979 has been sought and refused by this Honourable Court on the 14th day of May, 1986.

 

The order against which the appellant filed the notice of appeal was made by the Court of Appeal in a Ruling delivered by the Court (coram Mohammed, Kutigi and Kolawole, JJ.C.A.). Kolawole, J.C.A., delivering the lead Ruling (concurred in by Mohammed and Kutigi, JJ.C.A.) concluded.

 

In my judgment, the applicant who is not a party to the proceedings is entitled to have the order which is prejudicial to her discharged particularly when the motion upon which that order was made was intended for service on Messrs. Kehinde Sofola and Company. How then did learned counsel lead the court to order that the documents be served on a particular junior counsel in the chambers of Messrs Kehinde Sofola and Company. I think there is more to the story than we have been told.

 

From all that I have said above, the application succeeds. The order of this court dated 17th April, 1985 directing that the motion and papers filed in this appeal be served on Miss Ogundare as solicitor to the 1st, 2nd and 3rd respondents is hereby set aside. The applicant is entitled to the costs of this application which I assess at N100.00.

 

Briefs of argument in this preliminary objection were filed and adopted at the oral hearing. The only issue for determination in this preliminary objection agreed upon by counsel to the parties and set out in the briefs is whether or not the sole ground of appeal involves question of law alone. I have chosen to use the letters of the Constitution rather than the terms used in the applicant's brief i.e. "whether or not the sole ground of appeal is one based on law alone" or the formulation in the appellants respondents' brief which read 'whether the defendants' ground of appeal is one of law alone."

It is observed that the appeal filed was filed by the plaintiff not the defendants and Chief F.R.A. Williams is on record as appearing for the plaintiff not for the defendants as stated in the brief of argument. The notice of appeal clearly shows that it was the plaintiff who was dissatisfied with the decision of the Court of Appeal and appealed to the Supreme Court.

 

As no application was made to amend the clear error on the brief signed by Chief F.R.A. Williams, S.A.N., I shall consider this Ruling on the basis of the representation announced before us at the hearing. The agreed issue therefore is whether the sole ground of appeal involves questions of law alone.

 

This issue has been exhaustively dealt with by my learned brother, Karibi-Whyte, J.S.C., in his Ruling just delivered the draft of which I had the advantage of reading. I agree entirely with him that the sole ground involves questions of mixed law and fact and not questions of law alone and that as the appellant was refused leave to appeal on the ground, the appeal is incompetent and must be struck out.

 

As it appears counsel coming before this court have always found the line of distinction between a ground involving questions of law alone and a ground involving questions of mixed law and fact too fine to be discernible, it is necessary to add the weight of my comments to the brilliant analysis contained in the lucid Ruling of my learned brother, Karibi-Whyte, J.S.C., for the benefit of counsel.

 

The genesis of the difficulty of counsel is traceable to the constitutional provisions giving aggrieved persons a right of appeal against decisions of the Court of Appeal. The provisions are set out in subsections (2) and (3) of section 213 of the Constitution of the Federal Republic of Nigeria 1979 and read

 

(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;

 

(b)   decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;

(c)   decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;

 

(d)     decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.

 

(e)    decisions on any question whether any person has been validly elected to any office under this Constitution or to the membership of any legislative house or whether the term of office of any person has ceased or the seat of any person in a legislative house has become vacant, and

 

(f)     such other cases as may be prescribed by any law in future in any State.

 

(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 state of the law as provided by the Constitution therefore is that in appeals to the Supreme Court, leave to appeal must be obtained by a party from either the Court of Appeal or the Supreme Court before an appeal can lie from the decision of the Court of Appeal where the ground of appeal involves question of fact or mixed law and fact. The instant appeal is an appeal against a decision of the Court of Appeal in a civil proceeding. It is a decision in an interlocutory matter. It is not a final decision. Whether the decision is interlocutory or final, the ground of appeal must, if the party aggrieved is to be entitled to appeal as of right, involve questions of law alone. See

 

(1)     Ojemen v. Momodu JJ (1973) 3 S.C. 172

(2)     Ogbechie v. Onochie (1986) 2 N.W.L.R. (Part 23) 484

(3)     Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Part 67) 718

(4)     Ifediora v. Ume (1988) 2 N.W.L.R. (Part 74) 5; (1988) 3 SCNJ 192

(5)     UBA. v. Stahlbau Grnbh (1989) 6 SCNJ 1; (1989) 3 N.W.L.R. (Part 110) 374.

 

That is the essence of the objection. Outside the categories of a ground involving questions of law alone exists a ground involving questions of mixed law and fact and questions of fact. See

 

U.B.A. v. Stahlhazi Gmbh (supra)

Ifediora v. Umeh (supra)

Ojemen v. Mornodu II (supra)

 

What then is the demarcation line, the distinction between questions of law and questions of fact? What are the constituent elements in the concept of question of law and in the concept of question of fact? In other words, what is the definition of a question of law? and also what is the definition of a question of fact? A profound knowledge of their meanings is necessary as these questions constitute the entire burden Judges and counsel have to contend with in all litigated matters or controversies.

 

In pleadings and litigation, the facts are "the circumstances deeds, sayings and inferences from them as distinct from the legal consequences, rules applicable thereto and legal conclusions."

 

Matters of fact are accordingly matters, circumstances, acts and events which in legal controversy are determined by admissions or by evidence as distinct from matters of law which are determined by authority and argument.

 

A question of fact may be any question which has to be determined by admission or by evidence rather than by authority and argument, and by the jury or Judge sitting as jury or any question which is not determined by a rule of law but depends on the circumstances. Such a question is distinct from a question of law and from a question of judicial discretion which is concerned with a decision of what is right and reasonable or just and equitable in the circumstances.

 

There is no doubt that in litigation or legal inquiries this distinction is frequently involved. A matter of fact or a question of fact concerns the existence or some state at some past time relevant to the enquiry of some person or thing or state of affairs ascertainable by the senses or by inference from conduct or happenings. Matters of fact include e.g. time, place weather, light, speed, colour, identification of persons, what was said, done, heard and so on and such inferred facts as a person's intention, sanity, state of mind, knowledge and the like. Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. Matters of law or questions of law on the other hand include what are the rules of law applicable to some issues, what their proper formulations are, and what they require or permit. Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. The interpretation of documents is always a question of law.

 

An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the court.

In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. In many circumstances, question of mixed fact and law arise. A decision of a trial Judge is normally a mixed finding. See Oxford Companion to Law pages 454 and 741.

 

In the light of the above definitions and having regard to the facts of the case on record, a close analysis of the sole ground of appeal will be found to involve not questions of law alone as contended by the appellant but questions of mixed law and fact.

 

Litigation is concerned with legal rights and duties of the parties thereto. It is concerned with facts in so far as they give rise to legal consequences. The final resolution of a dispute between parties as to their respective rights or duties may involve a determination of a number of different issues, that is to say a number of decisions as to the legal consequences of particular facts each of which decision constitute a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the facts. To determine an issue it is necessary for the person adjudicating first to find out what are the facts and there may be a dispute between the parties as to this. But while an issue may thus involve a dispute about facts a mere dispute about facts divorced from their legal consequences is not an issue. See Fidelitas Shipping Co. Ltd. v. V/O Exportch1eb (1965) 2 All E.R. 4 C.A. per Diplock, L.J. (as he was then) at pp.9, 10.

 

Therefore a ground of appeal which alleges that the Court of appeal erred in law in setting aside the order made on 17th April, 1985 calls into question the whole adjudication process the resolutions of the issues of fact and the issues of law and indeed an examination of all the issues decided. Some of these decisions were on points of law and others were on points of fact. Although the ground has been couched as error in law, the particulars given have betrayed the inaccuracy of that limitation.

 

Despite the difficulty highlighted in Ogbeche v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484 Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5 and U.B.A. v. Stahlbau GmbH (1989) 2 N.W.L.R. (Pt. 110) 374 in drawing the fine line of distinction between a ground involving questions of law alone and one involving questions of mixed law and fact the requirement in our Rules (see Order 8 Rule 2(2) of the Supreme Court Rules 1985) that

 

If the grounds of appeal allege misdirections or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

 

provides a key or guide to the determination of the nature of the ground or tile nature of the questions involved in the ground. See Ojemen v. Momodu II (1983)3 S.C. 173 at 209. The classification of the ground as a ground of law can only give competence to an appeal without leave if the nature of the misdirection or error in law clearly stated in the particulars bears out the category assigned.

 

Turning to the particulars of error in law given in the only ground filed in the instant appeal, a close examination will show that the nature of the error given is not one of error in law alone. Particular 1 alleges that

 

the application should have been refused because of the delay of over 2 months by the applicant moving to set the order aside.

 

What effect delay of over 2 months will have on Court of Appeal in the exercise of its discretion to grant or refuse the order is a question of fact depending on the circumstances of the case. It is not a question of law. There is no statutory or judicial authority which stipulates that after a delay of over 2 months the application to revoke the order must be refused. The facts amounting to the delay must be considered along with the cause of the delay and the justification or non-justification of the delay are impressions on the mind which vary from tribunal to tribunal.

 

In effect, particulars 1 involves question of fact. Particulars 2 involves an examination of the facts-evidence and the proper inferences to be drawn on disputed facts. This surely involves questions of fact whether or not counsel were instructed. There are no rules of law governing inferences to be drawn from a set of facts nor is a conclusion to be drawn from facts governed by authoritative rules of law. Many counsel fail to direct their minds to this fact and fall into the error of regarding such questions as questions of law repeatedly.

 

Particular 3 raise a hypothetical question and I agree with my learned brother that it is irrelevant to the Ruling challenged. It is therefore clear from the above analysis that particulars 1 and 2 do not confine the ground to questions of law alone. They question the evaluation of admitted facts made by the Court of Appeal before the application of the law.

 

For the above reasons and the more detailed reasons given by my learned brother, Karibi-Whyte, J.S.C., I too hereby uphold the preliminary objection and leave having been refused, strike out the appeal.

The appeal having been struck out, the applicant is entitled to costs fixed at N50.00.

 

 

Judgment delivered by 

Eso, J.S.C.

 

I have had the privilege of a preview of the Ruling which has just been delivered by my learned brother, Karibi-Whyte, J.S.C. I am in full agreement with his analysis of the legal position. The issue of what constitutes question of law or fact or mixed law and fact has engaged the attention of this court for a long time. But it continues to engage its attention having regard to the fine distinction, which is not easily discernible either by counsel or the court, between issues of law and fact.

The only ground of appeal in this case is as follows:-

 

(I)      The application to set aside the order should have been refused because of the delay of over two months by the applicant moving to set it aside.

 

(2)    Upon all the facts before the Court of Appeal, it was evident that counsel instructed by Messrs Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1 985 that service of the notice of appeal be upon Messrs Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules:

 

(3)  The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the solicitors meant that the solicitors were compelled to act for the parties involved.

 

The background to the whole problem before this Court has been admirably summed up in the aforesaid ruling of my learned brother. However, I will relate few of the facts here.

 

(1)     The Plaintiff in the Federal High Court, is the Appellant in this case.

 

(2)     Three of the Defendants, that is, D.A. Migliore, A. Mangili, and C. Mangili are not resident in this country.

 

(3)     Messrs Kehinde Sofola, Solicitors had been representing those defendants in another suit but he was served for the defendants in this suit.

 

(4)     Kehinde Sofola. S.A.N., the principal of the Chambers after several appearances brought an application for the setting aside of the service of the summons on his chambers on behalf of the three Defendants on the ground that he had no instructions to appear for them. This application the Federal High Court granted.

 

(5)     The Plaintiff/Appellant appealed to the Court of Appeal but curiously and without any argument the Court of Appeal ordered that the papers be now served on Miss Ogundare of Messrs Kehinde Sofola & Co. Solicitors, to be forwarded by the said solicitor to the 1st, 2nd and 3rd Respondents.

 

(6)     As would be expected, Miss Ogundare of counsel brought an application for this order to be quashed. This application was granted by the Court of Appeal on 17th April, 1985.

 

It is against this order of the Court of Appeal that this appeal has been lodged and there was only one ground of appeal. Then another issue arose. Is the appeal competent? Or in other words, is the ground, one of law or fact or of mixed law and fact? The question is pertinent as a result of the provision of the Constitution of the Federation 1979 S.213(2) and (3) of which provides:-

 

(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;

 

(b)   decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution.

 

(c)   decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;

 

(d)    decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court;

 

(e)    decision on any question whether any person has been validly elected to any office under this Constitution or to the membership of any legislative house or whether the term of office of any person has ceased or the seat of any person in a legislative house has become vacant, and

 

(f)     such other cases as may be prescribed by any law in future in any State.

 

(3)     Subject to the provisions of sub-section (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 sum total is-

 

Is leave necessary in this case for none has been obtained?

 

As I have earlier said, the dividing line between issue of law and fact is so thin that both court and counsel are often put to task. In Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484 I made an attempt to categorise the two questions. Earlier, in Ojemen v. Momodu (1983)1 SCNLR 188 Obaseki J.S.C. had impressed upon the constitutional aspect of the matter. He said at p.205-

 

As this Court has no jurisdiction to entertain appeals from decisions of the Federal Court of Appeal on grounds which involve questions of fact or mixed law and fact without leave either of the Federal Court of Appeal or this court, this court has a heavy constitutional duty to examine and study the grounds in support of appeals before it carefully and satisfy itself that they are those in respect of which it has jurisdiction to entertain before commencing with the hearing of the appeal.

 

Chief Williams, S.A.N., has forcefully argued that the sole ground of appeal herein is a ground of law. He then submitted that item 2 of the particulars of Error are matters of record and that they are not in contest. I think I would adopt the reasoning of my learned brother Karibi-Whyte, J.S.C., on this. He said that one should not avoid the consideration that there is no pre-determined authoritative principles which must govern the conclusion that one could draw from a delay. Whatever one person infers from the delay of two months could not necessarily mean what another person must infer.

 

Indeed this particular case is one that rests on the border line. And I can appreciate the difficulty of learned counsel to determine whether this is a question of law or fact or mixed law and fact. The truth is I have not found the determination easy myself. It is one determination that has given me anxious moments. I opt for a reservation of mixed law and fact which must require leave before this Court could be seised with jurisdiction.

 

I too would uphold the preliminary objection. I abide by the order of costs made by my learned brother Obaseki, J.S.C.

 

 

Judgment delivered by 

Nnamani, J.S.C.:

 

I had a preview of the ruling just delivered by my learned brother, Karibi-Whyte, J.S.C., and I agree entirely with his reasoning and conclusions.

 

Once more, this Court is called "upon to re-examine the old question of when a ground of appeal raises questions of law alone or where it raises issues of mixed law and facts or facts. I say old question for the same matter had been dealt with in several decisions of this Court. See Ojemen V. Momodu 11(1983) 3 S.C. 173 at 211-212; Oluwole vs. L.S.D.P.C. (1983) 5 S.C. 1; Ogbechie v. Onochie (1986) 3 S.C.; (1986) 2 N.W.L.R. (Pt. 23)484, (Nwadike v. 1bekwe (1987) 4 N.W.L.R. (Part 67) 718 and ifediora V. Ume (1988) 2 N.W.L.R. (part 74) 5 just to mention a few.

 

The present matter arose from a preliminary objection raised by learned counsel to the Respondents, Kayode Sofola, Esq., against the only ground of appeal filed in this Court complaining of ruling of the Court of Appeal delivered on 10th July, 1985. The only ground of appeal in contention is worded thus:

 

The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.

 

Particulars

 

(1)    The application to set aside the order should have been refused because of the delay of over two months by the Applicant in moving to set it aside.

 

(2)    Upon all the facts before the Court of Appeal, it was evident that Counsel instructed by Messrs. Kehinde Sofola and Company had appeared before the Federal High Court on behalf of D.A. Migliore A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985, that service of the Notice of Appeal be upon Messrs Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules.

 

(3)    The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the Solicitors meant that the Solicitors were compelled to act for the parties involved.

 

The parties filed briefs of argument, the respondents contending that this ground of appeal raises issues of mixed law and fact while the appellant contended that it raised only questions of law. It was not in dispute that appellant did not obtain the leave of this Court or the Court of Appeal to appeal on any ground of appeal raising issues of mixed law and fact or issues of fact. Nor is it in dispute that the appellants had applied to this Court for leave to appeal (on this same ground of appeal) on issues of mixed law and facts and leave was refused on 14th May, 1986.

 

In this concurring ruling, I shall limit my brief comments to particulars I and 3 in the ground of appeal. I think it is obvious that the ground of appeal as framed cannot be divorced from the particulars as otherwise it could hardly be a recognisable ground of appeal. One would therefore have to take the ground and particulars together to resolve the issue in contention. From all the cases in which this Court has considered this issue of ground of appeal, certain matters appear not to be in controversy. No one can now argue that where facts are not disputed and the only complaint is as to the way the lower court has applied the law to those established, undisputed facts the ground of appeal is anything but one of law. Nor can it be disputed that whenever the decision of a court is perverse in the sense that no reasonable tribunal could on the evidence before it have reached such a decision, or that there was no evidence to support the decision reached by the Court, a complaint against such a decision can raise any questions other than questions of law. The gray area, or better the area of persistent conflict appears to be around exercise of discretion by courts. A discretion is exercised by a Court in the context of certain circumstances placed before that court. If the exercise of that discretion is challenged before an appellate court, that Court, in my view, is bound to look at the surrounding circumstances to determine whether the lower court exercised the discretion judiciously or judicially or arbitrarily. That is why I am of the view that such questions necessarily raise issues of mixed law and fact. I adopt the opinion I expressed on this in Jfediora v. Ume (supra) where at page 17 I said inter alia:

 

To examine the manner in which the learned trial Judge exercised his discretion, one has to look at the facts and the circumstances. It is against that background that one determines whether the right principles of law have been applied.

 

To return to particular 1 of the ground of appeal in issue, which is clearly a challenge to the exercise of the Court of Appeal's discretion, Chief Williams, S.A.N., for the appellant, has contended that there is no disputed fact about the delay of over 2 months. Admittedly the records show clearly that there was a delay of over 2 months but if it is being contended that the Court ought not to have exercised its discretion one way in the face of such delay, an appellate court would have to look at the surrounding circumstances, that is around the 2 months delay to see what weight the lower court attached to it, whether it considered it unreasonable or not etc. These matters raise issues of mixed law and fact.

 

As regards particular 3, I am not quite sure that one can wave it aside as having not arisen in the appeal. I do not understand the appellant of saying in that particular that the Court of Appeal used those words. My understanding of the complaint is that the Court of Appeal would not have set aside its order of 17th April, 1985 if it had not erroneously taken the view that making order of service of notice of appeal through Messrs. Kehinde Sofola and Co. meant that they were now Solicitors to the respondents. That the Court of Appeal took this view seems to me clear from that portion of the judgment of Owolabi Kolawole, J.C.A. where the learned Justice said;

 

In my judgment, Messrs Kehinde Sofola & Co. have satisfied me that they are not in charge of the present litigation and the plaintiffs/appellants merely want them as a convenient post box . . .

 

Again why must the firm of Kehinde Sofola be compelled to act for the respondents after the order of Anyaegbunam, C.J. which order is still on appeal?

 

I am certainly of the opinion that a complaint against this assumption that service through them meant the Solicitors were acting for respondents does raise an issue of law. However, as I am of the view too that particulars I and II raise issues of mixed law and fact, this cannot be of any assistance to the appellant. The appellant cannot succeed because part of the grounds of appeal raise issues of law. In the words of Nnaemeka-Agu J.S.C., I am unwilling to do any surgical operation to bring them within Section 21 3(2)(a) of the Constitution. See Nwadike v. Ibekwe (supra) at page 746H-747C.

 

For these reasons, and the fuller reasons in the lead ruling, the objection is sustained. The appeal is incompetent and is accordingly struck out. I endorse the order for costs in the lead ruling.

 

 

Judgment delivered by

Wali, J.S.C.:

 

I have read before now the Ruling of my learned brother Kanbi-Whyte, J.S.C., on whether or not the only ground of appeal filed in this appeal to wit.

 

The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.

 

Particu1ars

 

(1)     The application to set aside the order should have been refused because of the delay of over two months by the Applicant in moving to set it aside.

 

(2)     Upon all the facts before the Court of Appeal, it was evident that Counsel instructed by Messrs. Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985, that service of the Notice of Appeal be upon Messrs. Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules.

 

(3)     The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the Solicitors meant that the Solicitors were compelled to act for the parties involved.,

 

is purely a ground of law in which case no leave is required to sustain it, or it is of mixed law and facts when leave is a mandatory precedent to sustain the appeal. I entirely agree with his reasoning and conclusion that having regard to the particulars in that ground, one cannot escape coming to the conclusion that it is a ground of mixed law and facts which requires leave before it is filed. See the decision in Ogbechie & Ors. v. Onochie & Ors (1986) 2 N.W.L.R. (Pt. 23) 484 where Eso, J.S.C., restated the principle to guide the Court in deciding whether a ground of appeal is of pure law or of mixed law and facts or of facts alone. See also Section 213(3) of the 1979 Constitution.

 

It is for those same reasons given in the Ruling of my learned brother, Karibi-Whyte, J.S.C., that I too sustain the objection raised. N50.00 costs is awarded against the Appellant/Respondent in favour of the Respondent/Applicant.