Constitution of Nigeria

Court of Appeal
High Courts

Home Page

Law Reporting

Laws of the Federation of Nigeria
Legal Education
Q&A
Supreme Court
Jobs at Nigeria-law

 

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 1990  

SC 137/1989

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

  

Between

   

Nigeria National Supply Co. Ltd.

.......

Appellant

 

 

And

 

 Establissment Sima of Vaduz

.......

Respondents

   

Judgment of the Court

Delivered by

Belgore,J.S.C.

 

 

On the 2nd October, 1990, 1 dismissed this appeal and reserved the reasons for doing so to H 14th December, 1990.1 now give my reasons.

 

A Suit filed by respondent Establissment Sima of Vaduz was on the 2nd day of March, 1988 struck out by the Federal High Court. An application under Order 9 rule 6 Federal High Court (Civil Procedure) Rules was argued before that court on 17th day of October, 1988 for relisting the suit. Even though the present appellant as respondent to that motion opposed, the prayer was granted. In granting the motion for relisting the suit the learned Judge, inter alia, held as follows:

 

The only issue for deeper consideration is the length of time between when the action was struck out and the motion to relist it was taken. There is no time limit as when such a motion should be taken but the guilding principle is fairness to all the parties concerned. The Applicant will not be claiming his right but will be praying on the Court's discretion and hence he must not do any thing to prejudice his position or that of the other party. I am fully aware of the Supreme Court case in the Williams's case which lays down that application of this nature must be brought within reasonable time. What is reasonable time has to be decided on the facts of each case and a blanket definition of it cannot be given. The Defendant in their own counter-affidavit deposed that they would be prejudiced as some of the staff who were likely to be of use to them in the case had their services dispensed with few months after the case was struck-out. I am not impressed by this reason, since there is a reasonable possibility that the action be relisted or a fresh one can be instituted the liquidator cannot be heard that he has disposed of evidence to help him in contesting or defending any action within his duty. 

 

I do not consider the delay of the plaintiff inordinately long and I found that they have a good excuse to be absent in court the day they were, the application is therefore granted. The case is listed.

 

Against this ruling the appellant lodged an appeal before Court of Appeal on two grounds as follows:

 

GROUNDS OF APPEAL

 

A.     The learned trial Judge erred in law in failing to exercise his discretion properly on the materials bef~re him in granting the 

Plaintiff's application for re-listing the suit.

 

PARTICULARS

 

(i)     The motion for re-listing of the suit was filed about seven months after it was struck out.

 

(ii)     No reason was given by the Plaintiff for the delay in its Affidavit.

 

B.     The learned trial Judge erred in law in not giving adequate con sideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of conditions precedent to the granting of an application to relist a suit struck out.

 

PARTICULARS

 

(i)     The defendant in its counter-affidavit averred that the Of ficers who will be needed for prosecution of its case are n longer on its staff list.

 

RELIEF SOUGHT FROM THE COURT OF APPEAL

 

That the decision of the learned trial Judge Belgore, J. (sic) be set aside and that an Order of disrnissal of the Motion to relist Suit A No.FHCIIJ127I86 be entered by the Court of Appeal.

 

The appellant then prayed the Federal High Court for stay of proceedings pending determination of the appeal. This was also refused for illuminating reason advanced in the ruling of the trial Judge. Being dissatisfied with this decision, another application was taken to the Court of Appeal by way of motion. The Court of Appeal held that the proposed grounds of B appeal were incompetent because they were grounds of mixed law and fact for which leave was necessary and leave not having been obtained, dismissed the application. Thus the appeal, to this court, whose grounds state as follows:

 

GROUNDS OF APPEAL:

 

The learned Justices of the Court of Appeal erred in law when they dismissed the Applicant's application for Stay of Proceedings in Suit No.FHCIU127/86 pending at the Federal High Court on the ground that the Appeal is not competent, leave to appeal having not been obtained.

 

PARTICULARS:

 

(a)     The two grounds of appeal filed by the applicant raise questions D of law alone.

 

(b)     By virtue of section 220 of the Constitution, appeals from decision of the Federal High Court lie to the Court of Appeal as of right where the ground of appeal involved questions of law alone.

 

The appellant has all along been intimated by the ruling - that is in the Federal High Court and the Court of Appeal - that his prayers do not amount to anything more than asking for court's discretion. Where a party F by way of motion seeks court's discretion, as in this case, asking for stay of execution, the evidential vehicle in the main will be the supporting affidavit or affidavits and where the motion is opposed, the counter-affidavit. Affidavit contains nothing more than facts a person swearing to it believes to be true, even though not necessarily the truth, and as such it is not law but facts. The facts contained in such affidavits will sway the Judge one way or the F other in deciding where justice of the case demands his discretion should go. Thus in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a Court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by G what are the facts disclosed in the affidavit to arrive at its discretion. This is essentially matter of fact. It is therefore inappropriate to address such matter of discretion as matter of law; the facts leading to the consideration of the discretion are mere facts, even though law will be applied to those facts.

 

Now the appellant right from the Federal High Court to the Court of Appeal and finally to this Court has tenaciously insisted his grounds of a~ H peal from the High Court are grounds of law, merely by tagging them "error in law". Mere assertion that a ground of appeal is based on "error in law" does not make it one if the errors particularised are no more than matters of fact. [Metal Constriwdon (W.A.) Ltd. V. Migliore (1990)1 N.W.L.R. (Pt.A 126) 299]. The grounds of appeal tagged by the appellant as those based on error in Law" are no more than mere facts, the decision complained of are those of court's discretion based on facts deposed in affidavit evidence. [Ogbechie V. Onochie (No.1) (1986)2 N.W.L.R. (Pt.23) 484; Ifediorah V. Umeh (1988) 2 N.W.L.R. (Pt. 74) 5; Obijuru V. Ozims (1985) 2 N.W.L.R. (Pt.6) 167]

 

When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. [See S. 221(1) and (2) of the Constitution 1979]; Oluwole V. L.S.D.P.C. (1983) 5 S.C.1; State V. Omeh (1983) 5 S.C.20; Nwadike V. Jbekwe (1987)4 N.W.L.R. (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been sought and obtained to file the ground. [Ojemen V. Momodu 11(1983)1 S.C.N.L.R.188 at 206].

 

The appellant right from the Federal High Court to the Court of Appeal has fought a futile battle to have a stay of proceedings pending appeal be-cause its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.

 

It was for the foregoing reasons that I, on 2nd day of October, 1990, dismissed this appeal with cost of N500.00 to the respondent.

 

 

 

Judgment delivered 

by

Obaseki, J.S.C.:

 

 

 On the 20th day of October, 1990 this appeal came up for hearing. After hearing counsel in oral argument and reading the briefs filed by counsel to the parties together with the record of proceedings in the E court below, I found that the appeal was devoid of merit and I thereupon dismissed the appeal but reserved the Reasons for the Judgment till today. I now proceed to give them. I agree with the Reasons for the Judgment just delivered by my learned brother, Belgore, J.S.C.

 

The appeal to this court raises the sole issue of competence.

 

In other words were the two grounds of appeal filed against the Ruling F of the Federal High Court grounds which involves questions of fact or mixed law and fact to require leave of the Federal High Court or the Court of Appeal. The issue can be disposed of by posing the question differently, i.e. whether the grounds of appeal filed by the appellant involves questions of law alone.

 

It is settled law that if the ground of appeal to the Court of Appeal from ~the Federal High Court involves questions of law alone the appellant can appeal as of right. He requires no leave of either the Federal High Court or the Court of Appeal in appeals from the Federal High Court to the Court of Appeal (see section 220(1) of the Constitution of the Federal Republic of Nigeria, 1979.

See also Ojemen V. Momodu (1983) N.S.C.C. (Vol.111)135; (1983)1 3S.C..N.L.R. 188.

 

But when the ground of appeal involves questions of fact or question of rnixed law and fact (see section 221(1) of the Constitution of the Federal Republic of Nigeria. See also Ojemen V. Momodu (supra)

 

When therefore leave is required to appeal and an appellant fails to apply for leave or is refssed leave, there is no valid appeal if filed without A leave.

 

This issue of validity is raised in the ground of appeal to this Court which  reads:

 

The learned Justices of the Court of Appeal erred in law when they dismissed the applicant's application for a stay of proceedings in suit No.FHCILJ127I86 pending at the Federal High CO~ B on the ground that the appeal is not competent, leave to appeal not having been obtained.

 

Particulars

 

(a)     The two grounds of appeal filed by the applicant raise questions of law alone.

 

(b)     by virtue of section 220 of the Constitution, appeals from decisions of the Federal High Court lie to the Court of Appeal as of right when the ground of appeal involves question of law alone.

 

This ground therefore calls for an examination of the two grounds of appeal set out in the notice of appeal to the Court of Appeal.

These two grounds read:

 

(A)   The learned trial Judge erred in law in failing to exercise his dis- D cretion properly on the materials before him in granting the plaintiff's application for re-listing the suit.

 

Particulars

 

(i)     The motion for relisting the suit was filed seven months after it was struck out;

 

(ii)     No reason was given by the plaintiff for the delay in its affidavit.

 

(B)     The learned trial Judge erred in law in not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of the conditions precedent to the granting of an application to relist a suit struck out.

 

Particulars

 

The defendant in its counter-affidavit averred that the officers who will be needed for prosecution of its case are no longer on its staff list.

 

The guiding principle is that a ground of appeal must be given its most liberal interpretation to ascertain the questions it involves. G

 

If a ground of appeal is not limited by its own terms and particulars, the court has no justification in adopting a narrow view of the questions the ground involves. Taking ground A, the question involved are:

 

(1)     Did the learned trial Judge fail to exercise his discretion properly?

 

(2)     Did the learned trial Judge examine the facts or material before H him?

 

(3)     Does an examination of the facts justify the grant of the application to relist the suit?

 

There is no agreement between the parties on the applicant's allegation that there was an improper exercise of discretion by the learned trial Judge. A Therefore, to ascertain whether there was or was not a proper exercise of discretion, the Court of Appeal is being called upon to review the facts be-fore the learned trial Judge and determine whether he carried out a proper judicial exercise of assessment of facts, ascription of probative values and making of findings of fact before making his choice which discretion involves between granting the application and refusing the application to relist. This ground therefore involves questions of fact in addition to questions of law.

 

Ground B of the grounds of appeal to the Court of Appeal involves question of (1) whether the difficulty in securing the defendant's witnesses sworn to in the counter-affidavit because they have left the defendant's services is a fact and whether that should justify a refusal of the application to relist.

 

This question is a pure question of fact and the ground of appeal only seeks from the Court of Appeal reversal of the finding that the fact that the officers are no longer on the defendant's staff-list does not amount to a prejudice to warrant the refusal of the application to re-list.

 

From the analysis above, it is clear that the two grounds of appeal set out in the notice of appeal to the Court of Appeal are at best grounds of  mixed law and facts and at worst grounds of fact alone which requires leave of the Federal High Court or Court of Appeal to give constitutional validity to the notice of appeal.

 

The appellant having failed to apply for and obtain the necessary leave has derived the appeal to the Court of Appeal of any competence. The appeal being incompetent, the application before the Court of Appeal for stay of proceedings in the Federal High Court pending the determination of the appeal to the Court of Appeal cannot be entertained and the Court of Appeal was justified in refusing it. See 

 

Metal Construction (WA.) Ltd. V. Migliore (1990)1 N.W.L.R. (Pt.126) 299.

United Bank for Africa Ltd. V. Gmbh (1989) 3 N.W.L.R. F (Pt.110) 374 at 409 

Ogbechie V. Onochie (No.1) (1986) 2 N.W.L.R. (Pt.23) 484 

Jfediorah V. Ume (1988) 2 N.W.L.R. (Pt.74) 5.

 

It was for the above reasons and the reasons set out in the Reasons for Judgment just delivered by my learned brother, Belgore, J.S.C. that I dismissed the appeal.

 

 

Judgment delivered 

by

Uwais, J.S.C.: 

 

 

This appeal was dismissed on the 2nd day of October,1990 and I indicated then that I will give my reasons today for the dismissal.

I now do so.

 

In 1986, the respondent brought an action in the Federal High Court Lagos against the appellant. The action was struck out by the Federal High  Court on the 2nd day of March, 1988 on the ground that the respondent was not represented in court. Consequently the respondent applied under Order 39 rule 6 of the Federal High Court (Civil Procedure) Rules, 1981 for the case to be relisted. The application was heard by that court on the 17th day of  October, 1988 when it was opposed by the appellant on the ground that A

there was an inordinate delay in bringing the application to relist the case. In his ruling granting the application Belgore, C.J., said -

 

I do not consider the delay of the plaintiff inordinately long and I found that they have a good excuse to be absent in court the day they were; the application is therefore granted. The case is listed. (sic).

 

Not satisfied with the ruling, the appellant filed a notice of appeal to the B Court of Appeal and at the same time applied to the Federal High Court for a stay of the proceedings in the case pending determination of the appeal to the Court of Appeal. The application was refused and it was dismissed by the Federal High Court. The same application was then brought in the Court of Appeal and it was opposed by the respondents on the basis that the grounds of appeal filed raised questions of mixed law and fact and no leave to appeal was obtained. The ruling of the Court of Appeal was brief and it reads as follows -

 

it is obvious that the grounds of appeal are grounds of mixed law and facts leave has not been sought and obtained. The appeal is incompetent particularly on the authority of Ifediora V. Leince (sic) (1988) 2 NWLR (Part 74) 5. 9 The application for stay is therefore also incompetent. 

 

The application is dismissed with costs assessed at N50.00 in favour of the respondent.

 

The appeal before this court was against the ruling. There is only one ground of appeal filed and it reads thus -

 

The learned Justices of the Court of Appeal erred in law when E they dismissed the applicant's application for stay of proceedings in suit No.FHC/L/127/86 pending at the Federal High Court on the ground that the Appeal is not competent leave to appeal having not been obtained (Sic).

 

Particulars

 

(a)     The two grounds of appeal filed by the applicant raise questions of law alone.

 

(b)     By virtue of section 220 of the Constitution appeals from decisions of the Federal High Court lie to the Court of Appeal as of right where the ground of appeal involves questions of law alone.

 

The singular issue formulated in the appellant's brief for our determination  reads -

 

Whether or not the grounds of appeal contained in the appellant's Notice of Appeal dated 1~h October, 1988 raise issues of law or mixed law and fact or facts.

 

It becomes necessary therefore to set out the grounds of appeal in question. They are as follows - 

 

A.     The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiff's application for re-listing the suit.

 

Particulars

 

(i)     The motion for relisting the suit was filed about seven months after it was struck out.

 

(ii)     No reason was given by the plaintiff for the delay in its affidavit.

 

B.    The learned trial Judge erred i-n~1awin not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of the conditions precedent to the granting of an application to relist a suit struck-out.

 

Particulars

 

The defendant in its courter-affidavit averred that the officers who will be needed for prosecution of its case are no

longer on its staff list.

 

In his brief of argument in this court, appellant submitted that there is no general rule stating that any challenge on appeal to the exercise of discretion by a Judge automatically raises question of mixed law or fact or law alone. The grounds of appeal complaining against the exercise of the discretion must be examined before a decision can be arrived at as to whether questions of law or facts or mixed law and facts are involved. The appellant cited in support of the submission the dictum of Eso, J.S.C., in Ogbechie v. Onochie (1986) 2 NWLR (Part 23)484 at p.491; U.B.A. V. Gmbh (1989) 3 NWLR (Part 110) 374 at p.393 per Nnamani, J.S.C. and Okafor V. Nnaife (1987) 4 NWLR (Part 64)129 at p.135 per Oputa, J S.C. and canvassed that although the dictum of Nnaemeka-Agu, J.S.C. in Ifediorah V. Ume (1988) 2 NWLR (Part 74) 5 appeared to have laid down the general rule that all challenges to exercise of discretion by a Judge amount to questions of fact, this was not in fact so if the whole reasoning of Nnaemeka-Agu, J.S.C. in the case was examined.

 

In reply, the respondent argued in its brief of argument that going by the dictum of Eso, J.S.C. in Ogbechie's case (supra) the grounds of appeal must be examined together with their particulars in order to determine whether the grounds raise questions of law or otherwise.

It submitted that in that exercises both the grounds of appeal filed by the appellants in the Court of Appeal raised questions of fact only. It was canvassed that the dictum of Oputa, J.S.C. in Okafor V. Nnaife (supra) that the exercise of a court's discretion is always a matter of law must be regarded as obiter dictum since, it was submitted, the issue in that case was whether the court exercised its discretion properly in the particular circumstance of the case. Furthermore the decision in that case must be read in the light of the subsequent decisions of this court in Ifediora's case (supra) and that of a full court in United Bank for Africa V. Gmbh (supra) where Oputa, J.S.C. made a Volte-face by holding at p.409 thereof as follows -

 

....... .in the exercise of its discretion.. .the court will have regard to all the particular facts and circumstances of the particular case before it. Discretion is thus not an indulgence of judicial whim, but the exercise of judicial judgment based on facts and guided

by the law or the equitable decision... to exercise his discretion properly the Judge was bound to look at the facts and surrounding A circumstances. If this is not a ground of fact or at least of mixed law and fact, then I do not know what it is.

 

Finally learned counsel for the respondent further cited, in support of the submission, the case of Metal Construction (W.A.) Ltd. V. Migliore (1990)1 NWLR (Pt.126) 299 at p.305.

 

It appears to me, going by the only issue for determination formulated by the appellant, that the issue to be addressed in this appeal is not whether B the Court of Appeal exercised its discretion properly in refusing the application for stay of proceedings in the lower court but whether the Court of Appeal was right in holding that the two grounds of appeal filed by the appellant, complaining against the refusal, raised questions of mixed law and fact and by reason of that the appeal before it was incompetent; since no leave to appeal had been obtained in accordance with the provisions of section 221 of the 1979 Constitution before the notice of appeal to the Court of Appeal was filed.

 

The general principle for determining the nature of a ground of appeal is as laid down in Ogbechie V. Onochie (supra). In that case, this court (per Eso, J.S.C.) stated at p.491 as follows -

 

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 mis-understanding by the lower tribunal 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 quesioning the evaluation of facts by the lower tribunal be- E fore 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.

 

Now applying this principle to the present case, ground 1 complains that the Federal High Court failed to exercise its discretion properly on the materials before tile court. What were the materials before the court? The answer F is to be found in the particulars to the ground. The first material is that the motion to relist the case was not brought early enough because seven months had expired since the case was struck out. The second material was that no reason was given for the delay. Are these, therefore, matters of law or fact or both? Admittedly the exercise of discretion may be a matter of law. It could also be a matter of fact. It all depends on the peculiar facts or circumstances G of each case. In Metal Construction (W.A.) Ltd. v. Migliore & Ors. (supra) at p.315, Karibi-Whyte, J.S.C. observed thus -

 

'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 H irregular decision - See Evans V. Bardam (1937) 2 All E.R.646. There is no doubt therefore that the question involved in such 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 in considering the application to set aside the decision - See Ifediorah v. Ume (1988) 2 NWLR (Part 74) 5; U. B.A. Ltd. V. Gmbh (1989) 3 NWLR (Part 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 application. (italics mine)

 

It follows from the foregoing that ground 1 of the appeal against the decision of the Federal High Court, could have raised both questions of law and fact. Looking at its particulars, the delay alone in bringing the application is not the only complaint but also that no reason was given in the affidavit in support of the application. They delay of seven months raise the issue of what is to be considered in granting the application as laid down in Williams & Ors. V. Hope Rising Voluntary Funds Society (1982)1-2 S.C. 145 at pp.159-160, per Idigbe, J.S.C. These are -

 

1.     Whether the applicant has good reasons for being absent at the  hearing.

 

2.     Whether he has shown that there was good reason for his delay in bringing the application, that is, whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgment subsists.

 

3.     Whether the respondent will not be prejudiced or embarrassed if E the order for the reheanng was made.

 

4.     Whether the applicant's case was manifestly unsupportable.

 

5.     Whether the applicant's conduct throughout the proceedings is deserving sympathetic consideration.

 

Although the observance of these conditions is a matter of principle and therefore a matter of law, the conditions themselves are matters of fact.

 Therefore the observance of the conditions for overlooking the delay necessitates the observance of law and facts and any ground of appeal based on delay in bringing the application to relist is bound to raise question of mixed law and fact. On the other hand, the issue of the failure to give reasons for the delay in the affidavit in support of the application is a question of fact and not law. It follows, therefore, that ground 1 raises question of mixed law and fact.

 

With regard to ground 2, the failure of a Judge to give adequate consideration to a point raised by a party is an issue of law. It is moreso if the point ignored is a point of law. However, where the point raised concerns an issue of fact, like an averment in an affidavit or counter-affidavit, it is my opinion, that the failure to consider the point will in that case become entangled with the averment and will therefore be an issue of mixed law and fact. See Harrison Welli & Anor. V. Okechukwu & Ors. (1985)6 S.C. 132 at p. 134; (1985)

2 NWLR (Pt.5) 63 and Ogbechie's case (supra) at p.491 E-G. It is clear from ground 2 that the point allegedly not considered by the Federal High Court was the fact that the appellant would be prejudiced if the case was relisted, because its officers who would be called as its witnesses were no longer in its A employment. This is a matter of fact. In my opinion, ground 2 raises issues of mixed law and fact.

 

On the whole it follows that the Court of Appeal was right in holding that the grounds of appeal in the notice of appeal filed by the appellant did not raise questions of law but those of mixed law and fact. As section 221 subsection (1) of the 1979 Constitution requires the grant of leave by either  the Federal High Court or the Court of Appeal before the appeal could be competent, it was proper for the Court of Appeal to refuse the application for stay of proceedings since the purported appeal on which the application was hinged was incompetent.

 

It was for these and the reasons for judgment read by my learned brother, Belgore, J.S.C., which I read in draft, that I dismissed the appeal on the 2nd day of October, 1990 with N500.00 costs to the respondent.

 

 

Judgment delivered 

by

Karibi-Whyte, J.S.C.:

 

 On the 20th October, 1990 after hearing appellants and respondents argue this appeal, and relying on their briefs of argument which they adopted, I summarily dismissed this appeal on the ground that the only ground of appeal filed and argued lacked merits. 

 

The facts of this appeal have been very comprehensively stated in the judgment of my learned brother, S.M.A. Belgore, J.S.C. I adopt them for the purpose of my judgment. I also agree with the reasoning in his judgment.

 

The only issue before this court is whether the Court of Appeal was right in its ruling that the grounds of appeal before it required leave of this court as prescribed by section 221(1) of the Constitution, 1979. Learned E counsel to the appellant has argued that since the ground of appeal is one of law, no leave was required in accordance with section 220(1) of the Constitution, 1979.

 

The contention in the preliminary objection of learned counsel to the respondent in the court below, which ruling is the subject matter of the is appeal, that the ground of appeal filed raised issues of mixed facts and law, and therefore required leave of the Court of Appeal under section 221(1) of the Constitution, 1979.

 

It is pertinent for the purposes of this judgment to reproduce verbatim the grounds of appeal subject-matter of appeal in the Court of Appeal. It is as follows -

 

A.    The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiff's application for re-listing the suit.

 

Particulars

 

(i)     The motion for relisting of the suit was filed about seven months after it was struck out.

 

(ii)     No reason was given by the plaintiff for the delay in its affidavit.

 

B.     The learned trial Judge erred in law in not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of conditions precedent to the granting of an application to relist a suit struck out.

 

 Particulars.

 

(i)     The defendant in its counter affidavit averred that the officers who will be needed for prosecution of its case are no longer on its staff list.

 

These were the grounds held to be incompetent by the Court of Appeal.

 

This court is being asked to set aside the decision of the Court of Appeal, on the ground that

 

The learned Justices of the Court of Appeal erred in law when they dismissed the applicant's application for stay of proceedings in suit No.FHC/L/127/86 pending at the Federal High Court on the ground that the appeal is not competent, leave to appeal having not been obtained.

 

 Particulars

 

(a)     The two grounds of appeal filed by the applicant raised questions of law alone.

 

(b)     By virtue of section 220 of the Constitution, appeals from decisions of the Federal High Court lie to the Court of Appeal as of right where the ground of appeal involves questions of law alone.

 

I shall reproduce in full the ruling of the Court of Appeal because of its brevity. It reads -

 

It is obvious that the grounds of appeal are grounds of mixed law and facts leave has not been sought and obtained. The appeal is. incompetent particularly on the authority of Ifediorah v. Ume  (1988) 2 NWLR (Part 74) 5.

The application for stay is therefore also incompetent. The application is dismissed with costs assessed at ~50 in favour of~the respondent. (see p xv of the record of appeal).

 

The purported appeal before the court below was against the Qrder relisting suit No.FHCIL/127186 struck-out. The effect of the ruhng of the Court of Appeal is that there was no appeal before it, accordingly the order relisting the suit remains.

 

I have already reproduced. the grounds of appeal relied upon by the appellant in the Court of Appeal. Both grounds complain about the exercise of the discretion of the learned Judge in determining the grant of the application to relist the suit No. FHC/L/127/86 struck out seven months earlier. Particulars of error in respect of the first ground complain about how long ago the suit was struck out and that applicant did not in his affidavit give any reason for delay in making his application. The second ground complains about the adequacy of consideration given by the learned trial Judge to the fact of the possibility of prejudice to the respondents if the suit was relisted. The only factor or material suggested was that since after striking out the suit, the officers of the company who would have been needed to prosecute the case are no longer on the staff list.

 

I think these were the indictments on the learned trial Judge which the Court of Appeal was asked to determine. The court determined the issues summarily relying on the recent decision of this court in Ifediorah. V. Ume (1988) 2 NWLR (Pt) 5.

Learned counsel to the appellant before us has in his brief of argument submitted that there is no general rule that any appeal challenging the exercise of a Judge's discretion raises questions of mixed law and facts, or questions of facts, or of law simpliciter. The grounds of appeal filed have to be examined thoroughly to determine the category into which it falls - counsel cited and relied on Ogbechie V. Onochie (1986) 2 NWLR (Part 23) 484.  Learned counsel also referred to Ifediorah V. Ume (1988)2 NWLR (Pt.74) 5, and U.B.A. V. Gmbh (1989)3 NWLR (Pt.11O) 374.

 

Learned counsel submitted that appellants are not disputing the facts leading to the exercise of discretion. The exercise of discretion is being challenged only on the ground that the law laid down in Williams V. Hope Rising Voluntary Funds Society (1982)1-2 S.C.145 at p.154 has not been applied to the facts before him. It was submitted that where the facts are not in dispute as in this case, the issue is one of law. Accordingly no leave under section 221(1) of the Constitution 1979 is required.

 

Prof. S.A. Adesanya, learned counsel to the respondent argued in support of affirming the decision of the Court of Appeal. Professor Adesanya agreed with the proposition that the ground of appeal together with the particulars thereto should be thoroughly scrutinised to determine whether the D ground of appeal is one of law, mixed law and facts or facts simpliciter. Like Mr. Thompson for the appellant he also cited and relied on Ogbechie V. Onochie (supra) and the dictum of Eso, J.S.C. therein. However, unlike Mr. Thompson for the appellants, Professor Adesanya submitted that the particulars to ground are clearly questions of fact.

 

I agree with this view and with the recasting and restatement of the particulars which if so restated, reads

 

The evidence of the appellant in its affidavit that it will be prejudiced if the suit is relisted was not considered by the learned trial Judge.

 

The question whether the evidence of the appellant in its affidavit, was considered by the learned Judge is not without dispute, and does not therefore F fall within the category of facts which remain undisputed and accepted. Furthermore, I agree with Professor Adesanya that whether or not a Judge considered a particular piece of evidence is a question of fact to be ascertained by examining the judgment and records of proceedings. Thus, unless admitted, the issue is one of fact.

 

Learned counsel to the respondent conceded that if the facts stated in G the particulars to the ground of appeal are not in dispute, then in accordance with U. B.A. Ltd. v. Gmbh (1989)3 NWLR (Pt.11O) 393, the question of the exercise of discretion in such a situation does not arise and is clearly a matter of law. The judge will then apply the facts as agreed.

 

The issue of the exercise of discretion in this case is not founded on any dispute as to the period for which the suit remained struck out before the application to relist was made. It is not disputed that this was seven months. The real issue in dispute, which is material to the exercise of discretion to relisi the suit is whether the period of seven months before the application to relist amount to an undue delay. The learned Judge found on the material before him that there was no undue delay before the application to relist was made. As the learned Judge put it in his ruling.

 

I do not consider the delay of the plaintiff inordinately long and I found that they have a good excuse to be absent in court the day they were, the application is therefore granted.

 

This is an exercise of his discretion founded on the consideration that the B delay of seven months before the application to relist the suit was not inordinately long. It depends on the attitude by each Judge to what he considers inordinate. There could be unanimity as to the inordinacy of delay to constitute a wrong exercise of discretion. But within certain acceptable minima, the question whether delay has been too long may depend upon the assessment of the particular Judge. The period of seven months falls within this mean, and the trial Judge after considering other circumstances associated

C with the striking out of the suit, and the making of the application did not consider the delay inordinate. He is within his judicial discretion so to find. The issue is undeniably one of fact.

 

It seems to me therefore that the Court of Appeal was right te have summarily upheld the objection that the grounds of appeal filed and sought to be relied upon by the appellant without leave, having been sought and ob-D tamed were not grounds of law, and therefore required leave of that court. Leave of the court having not been sought and obtained, the application was incompetent.

 

Counsel should not assume that the mere description of a ground of appeal as one of law is sufficient to enable it scale the constitutional hurdle of seeking leave if it is in substance a ground of mixed law and fact, or of facts simpliciter - See Metal Construction (W.A.) Ltd. v. Migliore (1990)1 NWLR (Pt. 126) 299; Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; Ifediorah V.

Ume (1988) 2 NWLR (Pt.74) 5; Obijura V. Ozims (1985) 2 NWLR (Pt.6) 167.

 

Grounds of appeal sought to be filed in the Court of Appeal founded other than on law requires leave of that court - See 5.221(1) and (2) - See also Oluwole V. L.S.D.P.C. (1983) 5 S.C.1; State v. Omeh (1983) 5 S.C. 20; Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718.

 

The grounds of appeal relied upon in this case are based on the exercise of the learned Judge's discretion which involve the ascertainment of the facts on which the exercise of such discretion was based. The exercise of discretion must be in a judicial manner, that is on recognised and accepted principles. This is at best an issue of mixed law and fact, which is caught by section 221(1) of the Constitution 1979.

 

Counsel to the appellant has spent considerable time and money in litigating a point which is unnecessary for the determination of the suit. If there is any serious desire to appeal against the ruling relisting the suit FHC/ L/127/86 at the Federal High Court, effort would have been made to seek the leave of the court for the purpose.

 

These are my reasons for dismissing this appeal on the 20th October,1990.

 

Judgment delivered 

by

Nnaemeka-Agu,J.S.C.:

 

On the 2nd of October, 1990, I dismissed this appeal summarily after reading the record and the briefs of both parties and

listening to the arguments of counsel on both sides. I reserved the reasons for my judgment till to-day. I now give my reasons.

 

The appeal is by the defendant who was an applicant before the Court of Appeal, Lagos Division, for an order staying the proceedings in the Federal High Court pending the determination of an appeal before the Court Appeal against an order relisting suit No.FCA/L/127/86 which had earlier been struck out. The plaintiff (respondent herein) resisted the application by submitting that as the two grounds of appeal were grounds other than law alone and had been filed without leave, there was no appeal properly before the court under section 220(1)(b) of the Constitution, 1979,'and therefore there was no basis for the stay. The Federal High Court upheld the submission  by the plaintiff/respondent and the Court of Appeal affirmed it. 

 

The appeal before this court therefore lies within a very narrow compass, the sole issue being whether or not any of the two grounds

filed in the Court of Appeal is a ground of law alone. It is was not disputed that the appeal was one against an interlocutorv decision.

 

The two grounds of appeal are as follows:

 

A.     The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiff's application for re-listing the suit.

 

PARTICULARS

 

(i)     The motion for relisting of the suit was filed about seven months after it was struck out

 

(ii)     No reason was given by the plaintiff  for the delay in its affidavit.

 

B.     The learned trial Judge erred in law in not giving adequate consideration  on to the contention of the defendant that it will be prejudiced if the suit is relisted when that  is one of the condition precedent to the granting of an application to relist a suit struck out.

 

PARTICULARS 

 

(i)     The defendant in its counter-affidavit averred that the officer who will be needed for prosecuting of its case are no longer on its staff-list.

 

Learned counsel for the appellant submitted that they were both grounds  of law whereas learned counsel for the respondent submitted that they are both grounds of mixed law and facts. 

 

It appears to me that the learned counsel for the respondent, Professor Adesanya, was right. It is recognized that the line of division between a ground of law simpliciter and one of mixed law and fact is very thin. But it is equally accepted that in the decision whether a ground of appeal is one of law alone or of mixed law and fact, the court ought to be guided by a number of considerations, including: 

 

(i)     that it does not matter whether the appellant called his grounds of appeal that of law, fact, or mixed law and fact: what the court ought to do is to read the particular ground, together with its particulars if any, as a whole: see Ogbechie & Ors. v. Onochie & Ors. (1986) 3 S.C.54; (1986) 2 NWLR (Pt.23) 484 also Paul Nwadike & Ors. V. Cletus Ibekwe & Ors. (1987)4 NWLR (Pt.67) 718; (1987) 2 N.S.C.C. 1219 at pp.1232 and 1238.

 

(ii)     where it raises an issue of law based on accepted undisputed or admitted facts or on facts as found by the court below it is a ground of law; but where it is based on facts in dispute, or unascertained, it is one of mixed law and fact.

 

It is from these two propositions that I now proceed to examine the two grounds of appeal filed by the appellant in the Court of Appeal. Ground A is based on "materials before" the court. What are those materials? They must have to be ascertained, and so, can at no stretch be regarded as accepted, undisputed, or admitted facts, or facts as found by the Federal High Court. Also whether or not the learned trial Judge gave adequate consideration to the contention of the appellant that it would be prejudiced if the suit was re-listed is also a question of fact. I may also note that Belgore, J. (as he then was) in his ruling gave adequate consideration to the point and came to the conclusion that in so far as striking out and relisting would have a similar effect on the future of the case in that, in either case, the plaintiff could either commence his action anew or continue with it. So, the contention is palpably  false, though that is not material to the issue under consideration. Be that as it may, it is clear that both grounds A and B are at least grounds of mixed law and fact.

 

Now, what is the effect of this position? It is now without doubt that a right of appeal from a decision of a High Court, Federal or State, as of right from an interlocutory decision derives from the provisions of section 220(1)(b) of the Constitution of 1979. Also, that right is exercisable without leave only "where the ground of appeal involves questions of law alone". See on this: Nafiu Rabiu V. Kano State (1980) 8-11 S.C.130 at pp.156, 203-204; also in civil case: see - Akinsola Dawodu & Anor. V. F. 0. Ologundundu & Ors. (1986)4 NWLR (Pt.33) 104 at p.112 and Ifediorah & Ors. V. Ume & Ors. (1988) 2 NWLR (Pt.74) 5 at p.13.

It is a matter which goes to the jurisdiction of the court. Where a court lacks jurisdiction over a matter, it lacks the vires to entertain it - cannot exercise judicial power thereon: see Attorney-General Lagos State. V. Hon. Justice L.J. Dosunmu (1989) 3 NWLR (Part 111) 552. It follows that there was no competent appeal pending before the Court of Appeal. There was, therefore, no proper ground for a stay of the proceedings. The Court of Appeal was right to have said so.

 

For the above reasons and the fuller reasons contained in the judgment of my learned brother, Belgore, J.S.C., I dismissed the appeal summarily on the 2nd of October, 1990.

 

Appeal dismissed.

 

Counsel

 

 

A. Thompson.

 

For the Appellant

Professor S.A. Adesanya 

With O. Eze Esq. and A. Adesina..

For the Respondent