AFRICAN INTERNATIONAL BANK LIMITED v.

PACKOPLAST NIGERIA LTD

CITATION: (2003) LPELR-7187(CA)

In The Court of Appeal(Kaduna Judicial Division)

On Thursday, the 27th day of March, 2003

Suit No: CA/K/234/M/2002

Before Their Lordships

ISA AYO SALAMI Justice, Court of AppealDALHATU ADAMU Justice, Court of AppealJOSEPH JEREMIAH UMOREN Justice, Court of Appeal

Between

AFRICAN

LIMITED

And

PACKOPLAST NIGERIA

LTD

RATIO DECIDENDI

1

INTERNATIONAL BANK Appellant

Respondent

1 JUDGMENT AND ORDER - A FINAL

DECISION: Whether in determining if a

decision is final or not, the nature of the order

as opposed to the nature of the proceedings

should be considered

"... the test to be applied for the purpose of

determining whether a decision is a final or an

interlocutory one was one which looked at the

nature of the order made and not the nature

of the proceedings. If the order determines

the right of the parties it affects and

conclusive on their rights so as to prevent the

party whomsoever affected to further plead or

adduce evidence against it before the trial

court or court of coordinate jurisdiction with a

view of upstaging it and such decision

operates against, not only the party in the

sense of revisiting the issue decided by the

trial court, but also against the jurisdiction of

the trial court in rendering it functus officio in

reopening the issue or issues so settled. Once

the decision is so conclusive on the issue

determined as to sustain a plea of the doctrine

of estoppel per rem judicata it is a final

decision. In other words, a decision is a final

decision within the context of section

241(1)(a) of the Constitution once the party

affected is estopped per rem judicata from

bringing once again the claim already

determined by the trial court before the same

2

court and the jurisdiction of the trial court to

entertain the same issue again is equally

ousted." Per SALAMI, J.C.A. (Pp. 8-9, paras.

C-A) - read in context

2 APPEAL - GROUNDS OF APPEAL: Whether

it is the essence or nature of a ground that

determines a ground of appeal

"A ground of appeal is not a ground of law

alone merely because it is so christened or

designated rather it is the essence or the

nature of the ground that determines what a

ground of appeal is made of or involves:

U.B.A. v. Stahlbau GMBH (1989) 3 NWLR

(Pt.100) 374,410; Nwadike & Ors. v. Ibekwe

(1987) 11 - 12 SCNJ; (1987) 4 NWLR (Pt.67)

718 and Ojemen v. Momodu II (1983) 1

SCNLR 188; (1983) 3 SC 173; Metal

Construction (West Africa) Ltd. v. Migliore &

Ors: In re Miss Ogundare (1990) 1 NWLR

(Pt.126) 279." Per SALAMI, J.C.A. (P. 16,

paras. D-G) - read in context

3 APPEAL - GROUNDS OF APPEAL: Whether

a ground of appeal can be of law alone or of

mixed facts and law and how to determine the

distinction

In this connection, an issue is classified as of

law when it deals with application or

misapplication of laws or interpretation of a

3

rule of law. In United Bank for Africa Limited

v. Stahlbau GMBH & Co. KG (1989) 3 NWLR

(Pt.110) 374 Supreme Court implored courts

engaged in differentiating between a ground

of law and a ground of fact to scan the

relevant ground or grounds of appeal carefully

to see whether the ground deals with

misapprehension of the court below of the law

or its misapplication of the law to the facts

already proved and accepted which, in that

case, would be question of law or one that

would involve questioning the evaluation of

facts by that court before application of law

which would result in a question of mixed law

and fact. See Ogbechie v. Onochie (1986) 2

NWLR (Pt.23) 484 and Nwadike & Ors. v.

Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718;

Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203)

286, 312; and in P.N. Udoh Trading Co. v.

Abere (2001) 5 SCNJ 274, 282; (2001) 11

NWLR (Pt.723) 114: the Supreme Court per

Kalgo, JSC, reiterated at P. 128 the principle

enunciated in U.B.A. v. Stahlbau (supra) when

he said: "In the light of the principles

enunciated in the above decided cases of this

court, I have examined the grounds of appeal

filed by the appellant in this case and find that

grounds 2, 5 and 6 cannot be classified as

grounds of law". This is so, because in my

respectful view all of them, read with their

respective particulars, cannot properly be

determined on construction of any statutory

4

provisions. But grounds 1,3 and 4 can all be

answered by relevant law or rule of law and

they are in my view, pure grounds of law. And

at Pp. 142-143 of the same report, Ogundare,

JSC said: "This court has had occasions to

pronounce on the test to be applied in

determining whether a ground of appeal is

one of law alone or of mixed law and fact. I

refer to such cases as Ogbechie v. Onochie

(1986) 2 NWLR (Pt.23) 484, Nwadike v.

Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744 -

745; Bamgboye v. University of Ilorin (supra);

Comex Ltd. v. N.A.B. Ltd. (supra). In Ogbechie

Eso, JSC, observed at page 91 of the report:

"There is no doubt that it is always difficult to

distinguish a ground of law from a ground of

fact but what is required is to examine

thoroughly the grounds of appeal in the case

concerned to see whether the grounds reveal

a misunderstanding by the lower tribunal of

the law or a misapplication of the law to the

facts already proved and admitted, in which

case it would be 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."

Per SALAMI, J.C.A. (Pp. 20-22, paras. C-B) -

read in context

5

ISA AYO SALAMI, J.C.A. (Delivering the

Leading Ruling): This appeal was listed for

hearing on 6th February, 2003 when the court suo

motu raised the issue of its competence or

otherwise. Learned counsel, sought and were

obliged with adjournment to address the court, on

the point raised, in writing. Both counsels prepared

and exchanged written addresses which were

adopted and relied upon at the hearing of the point

raised.

For appreciation of the background against which

the court called for addresses of counsel, it is

pertinent, at this stage, to recall the events leading

to this appeal. In the trial court, after pleadings had

been settled, the respondent filed a motion on

notice pursuant to Order 30 rule 3 of Kano State

High Court (Civil Procedure) Rules,1988, asking for

judgment to be delivered or entered in respect of

the plaintiff's claim which, it was alleged, had been

admitted.

The defendant, being opposed to such judgment

being entered in favour of the plaintiff and against

the defendant, deposed to a counter affidavit.

The application for judgment upon admission was

vehemently opposed and strenuously contested

nevertheless learned trial Judge entered judgment

in favour of the plaintiff in respect of the claim

alleged to be admitted on the 1st day of July, 2002.

Being dissatisfied with the judgment entered

against the defendant, it filed a notice and grounds

6

of appeal on 5th day of July, 2002 needless to say

within time and as of right. The record of appeal

was subsequently duly compiled and briefs of

argument filed and exchanged at appellant's,

respondent's as well as appellant's reply briefs.

In the course of hearing the appeal, the court

raised the issue suo motu as to the competence of

the appeal or otherwise and invited counsel to

address it accordingly. The issue raised was as to

the nature of the decision of the learned trial Judge

delivered on the 1st day of July, 2002. The

question was whether the same was a final or

interlocutory decision in view of the fact that the

balance of the plaintiff's claim was still pending

before the learned trial Judge and since whatever

be the outcome of the appeal there would be

something to return to in the High Court. If the

decision were interlocutory, the appeal would have

been filed in complete disregard of the express

provisions of sections 241(1) and 242 of the

Constitution and would have been incompetent and

liable to being struck out otherwise it would be

competent and would be entertained.

In response to the question, learned counsel for

appellant contended that a decision is said to be

final once, by its nature, it is conclusive that the

party whom it affects is not allowed to further plead

or adduce evidence against it before the trial court

with a view to contradicting it. It was further

contended that it is a final decision once the party

affected is estopped from bringing afresh, the claim

so determined before the same court. Learned

7

counsel then submitted that the respondent's

application had in effect severed respondent's cause

of action into 2 independent causes of action. He

relied on the case of Kansas University Endowment

Association v. King 162

Tex 599,350 SW 2d 11.19 and also Henry Campell

Black MA 1990 Blacks Law Dictionary with

Pronunciation 6th edition, Centenial edition 1891 -

1991 p. 1374.

I agree with the learned counsel for appellant that

this court as well as the Supreme Court had held,

in a number of cases, that the test to be applied for

the purpose of determining whether a decision is a

final or an interlocutory one was one which looked

at the nature of the order made and not the nature

of the proceedings. If the order determines the

right of the parties it affects and conclusive on their

rights so as to prevent the party whomsoever

affected to further plead or adduce evidence

against it before the trial court or court of

coordinate jurisdiction with a view of upstaging it

and such decision operates against, not only the

party in the sense of revisiting the issue decided by

the trial court, but also against the jurisdiction of

the trial court in rendering it functus officio in

reopening the issue or issues so settled. Once the

decision is so conclusive on the issue determined as

to sustain a plea of the doctrine of estoppel per rem

judicata it is a final decision. In other words, a

decision is a final decision within the context of

section 241(1)(a) of the Constitution once the

party affected is estopped per rem judicata from

8

bringing once again the claim already determined

by the trial court before the same court and the

jurisdiction of the trial court to entertain the same

issue again is equally ousted.

In England, it seems from the notes in the Annual

Practice to Order 58 rule 4 of the Rules of the

Supreme Court of England that the Court of Appeal

has, at different times, adopted two diverse tests

for determination of whether a decision is an

interlocutory or a final one for the purpose of an

appeal. The test which the editors of the Annual

Practice of the Rules of the Supreme Court say is

generally preferred is that stated by Lord

Alverstone, C.J., in Bozson v. Altrincham UDC

(1903) 1KB 547. Learned Chief Justice of England

at 548 - 9 of the report set the test down to be as

follows-

"Does the judgment or order, as made, finally

dispose of the rights of the parties? If it does, then

the order is a final order, if it does not, it is

interlocutory".

The other test as stated in Salaman v. Warner

(1891) 1 QB 734 is that an order unless it is made

on an application of such character that whatever

order had been made thereon must finally have

disposed of the matter in dispute. This test looks at

the nature of the proceedings. At page 736, Fry,

L.J., said:

"I think the true definition is this. I conceive that

an order is 'final' only where it is made upon an

application or other proceeding which must,

whether such application or other proceeding fail or

9

succeed, determine the action. Conversely, I think

that an order is 'interlocutory' where it cannot be

affirmed that in either event the action will be

determined".

In Akinsanya v. United Bank for Africa Ltd. (1986)

4 NWLR (Pt.35) 273 the Supreme Court of Nigeria

adopted the test which looks at the order made

when it cited the case of Bozson v. Altrincham UDC

(supra) with approval. In this connection, the

Supreme Court adopted the test per Bello, JSC (as

he then was) at p. 315 as follows:

"A careful perusal of the decisions of the Court of

Appeal of England relating to the applications of the

two tests would show that the court has not shown

consistent preference of one test to the other. It

has been applying one or the other test

indiscriminately.

However, in Nigeria in appeals against the decisions

of courts of first instance, the appeal courts have

been consistent and have adopted unequivocally

the test in the Bozson case: Blay v. Solomon

(1947) 12 WACA 175; Afuwape v. Shodipe (1957)

SCNLR 265; (1957) 2 FSC 62; Alaye of Effon v.

Fasan (1958) SCNLR 171; (1958) 3 FSC 68; Ude v.

Agu (1961) 1 SCNLR 98; (1961) All NLR 65; The

Automatic Telephone v. Federal Military

Government (1968) 1 All NLR 429."

Further on in the judgment at p. 318 His Lordship

concluded on the applicable test as follows:

For the avoidance of any doubt, I would like to

emphasize that, in my view, the test formulated in

Bozson case which has been adopted since Blay v.

10

Solomon (supra) and Ude v.Agu (supra) is still the

test to be applied in determining whether a court's

decision is 'final' or 'interlocutory'. () And Kayode

Eso, JSC, who wrote the lead judgment also had no

difficulty in adopting the principle articulated in

Bozson's case (supra) when he said at page 294 of

the report of Akinsanya's case supra:

"I have no difficulty in agreeing with Chief Williams

at this stage, therefore, that in this country in so

far as the court of first instance is concerned, the

nature of the order test should be adhered to and

the test as pronounced by Alverstone, C.J. in

Bozson v. Altrincham should be upheld by the

courts". ()

I am bound by the decision of the Supreme Court

and therefore, I am to apply the test declared in

Bozson's case to the effect that if court orders

something to be done without any further reference

to itself the judgment is final otherwise it is

interlocutory. Kayode Eso, JSC, in this connection,

in Akinsanya case (supra) at p. 296 explained thus:

"In other words, if the court of first instance orders

that a matter before it be terminated (struck out)

for it has no jurisdiction to determine the issue

before it, that is the end of all the issues arising in

the cause or matter and there is no longer any

issue between the parties in that cause or matter

that remains for determination in that court. But it

would be interlocutory if its order is that it has

jurisdiction for there will be reference of the

remaining issue in the case to itself. When a Court

of Appeal rules and orders that a court of first

11

instance had no jurisdiction in a cause which has

been brought before it that is the end of the matter

in so far as that particular litigation goes between

the parties in that Court of Appeal. There is no

further reference to the Court which has made the

order in either case. And that has determined the

rights of the parties in both cases before the court

making the order ... If the order had been made by

the trial court that it had jurisdiction, that is

interlocutory according to the nature of the order

made as there are issues still to be determined.

In Blay v. Solomon (1947) 12 WACA 175 the

erstwhile West African Court of Appeal also

followed the said test which looks at the order

made. See also Ude v. Agu (1961) 1 SCNLR 98:

(1961) All NLR 65,66 - 67.

On the strength of these authorities, the order of

the learned trial Judge, entering judgment in

favour of the respondent for the sum of

N60,000,000, on the alleged admission of the

appellant, may be a final, and not an interlocutory

judgment. It is considered an interlocutory

decision, or judgment even though the order is

complete, absolute, conclusive and capable of

execution as it is no longer subject to review or

variation or setting aside by same court or tribunal

which made the order, nevertheless, there is

outstanding reserved issue for the court which

made the order. The judgment signed in favour of

the respondent does not however qualify to be a

final decision because of the pendency of the

respondent's outstanding claims for special and

12

general damages which were not admitted before

the learned trial Judge and arising from the same

claim or writ of summons. A decision is considered

final once there is no further reference to a court

after it has made its order that something be done

that is, all the rights and not just one issue or some

issues have been determined. In this case, some

other reference in the nature of the claim for

special and general damages have been reserved in

the trial Judge itself.

The nature of the order made is N60,000,000.00

judgment to the plaintiff on admission of the

defendant with the claim for special and general

damages between the parties in the cause or

matter reserved or still outstanding for

determination in the trial court.

Accordingly, the nature of the order by the trial

court awarding N60, 000,000.00, out of

respondents several claims, to the respondent is

interlocutory as there are issue or issues still to be

decided in the nature of special and general

damages by the same trial court.

It may be observed that I have not alluded to the

submission of the learned counsel for respondent in

their written address. The reason cannot be far

fetched. The submission is solely pegged on the

decision of the Supreme Court in the case of

Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924

which is inapplicable to the circumstance of this

case. The issue for determination in the instant

case is whether the decision of kano State High

Court of Justice, in its first instance jurisdiction, is a

13

final or an interlocutory order.

In Oshodin's case the Supreme Court considered

and applied a test applicable to decision of an

appellate court that is, the Court of Appeal to

determine if the decision was a final or an

interlocutory one. The test in the two instances are

not the same, they are different. If a court of first

instance, for example, decides that it has no

jurisdiction its decision is final as it thereby finally

determines the right of the parties without

reserving any issue in the case to itself. But if the

trial court decides that it has jurisdiction to

entertain a cause or matter the decision is

interlocutory because it has reserved in itself the

hearing of the substantive suit. While in the former

instance, an aggrieved party does not require leave

to appeal and is entitled to appeal within three

months as of right, in the latter case, he requires to

seek leave to appeal and must seek leave and

appeal within fourteen days of the decision. See

Bowaju v. Adediwura (1976) 6 SC 143 and S.

25(2)(a) of the Court of Appeal Act, Cap. 75 of the

Laws of Federation of Nigeria, 1990. But a decision

of an appellate court declining jurisdiction is always

a final decision as there is no further reference to

itself and such decision could be appealed as of

right. I am strengthened in this view by the

Supreme Court decision in Akinsanya's case, which,

in my respectful opinion, is locus classicus on the

point, that the decision in Oshodin's case should

not relate to the problem as arising from the court

of trial and that the ratio of Omonuwa v. Oshodin

14

(supra) could not be made to apply to decision of

the court of first instance.

I am now to deal with the appeal as one emanating

from a court of first instance. S.241 (1)(a) and (b)

of the Constitution of the Federal Republic of

Nigeria 1999 governing appeals from Federal and

State High Courts, to this court provides inter alia

as follows:

"241(1) An appeal shall lie from decisions of the

Federal High court or a High Court to the Court of

Appeal as of right in the following cases:

(a) final decisions in any civil or criminal

proceedings before the Federal High Court or a

High Court sitting at first instance.

(b) where the ground of appeal involves questions

of law alone decisions in any civil or criminal

proceedings".

()

Having found that the decision of the court below at

first instance is not a final but interlocutory one, I

am to examine the 5 grounds of appeal filed to

ascertain whether or not they involve question of

law alone which would qualify the appeal to be

brought as of right without leave of either this

court or the court below being sought and obtained

before the appeal could be competent.

In this connection, appellant argued in its address

in writing that the grounds of appeal, contained in

its memorandum of appeal, filed on 5th July, 2002,

are grounds of law which do not require leave of

either this court or the court below to be filed.

Learned counsel then in the written address read

15

and examined the appellant's five grounds of

appeal without their particulars and submitted that

it would be seen that they were all purely grounds

of law.

I agree with the submission of the learned counsel

for respondent that whatever principle is to be

applied or followed in determining the nature of a

ground of appeal the ground of appeal must be read

together as a whole. To distinguish which of the

grounds of appeal is of law alone, fact or mixed law

and fact the grounds must be read as a whole. It

follows that the ground, contrary to the postulation

of appellant's counsel shorn of their particulars

should not be considered. See Orakosim & Ors. v.

Menkiti (2001) FWLR (Pt.52) 2068, 2077; (2001) 5

SCNJ 1, (2001) 9 NWLR (Pt.719) 529 and Ogbechie

v. Onochie (1986) 2 NWLR (Pt.23) 484.

A ground of appeal is not a ground of law alone

merely because it is so christened or designated

rather it is the essence or the nature of the ground

that determines what a ground of appeal is made of

or involves: U.B.A. v. Stahlbau GMBH (1989) 3

NWLR (Pt.100) 374,410; Nwadike & Ors. v. Ibekwe

(1987) 11 - 12 SCNJ; (1987) 4 NWLR (Pt.67) 718

and Ojemen v. Momodu II (1983) 1 SCNLR 188;

(1983) 3 SC 173; Metal Construction (West Africa)

Ltd. v. Migliore & Ors: In re Miss Ogundare (1990)

1 NWLR (Pt.126) 279.

It is apt and necessary, at this stage, to read the

appellant's grounds of appeal with their particulars

as adumbrated in its notice of appeal:

"1. The learned trial Judge erred in law and arrived

16

at wrong conclusion by entering judgment in favour

of the respondent in the sum of N60,000,000.00

and holding that the appellant admitted in its

statement of defence that it is owing the

respondent.

PARTICULARS

(a) The law is settled that the court must take into

account the whole pleading in arriving at a decision

relating to whether there exists an admission

relating to certain set of facts contained therein or

not.

(b) The appellants averred to facts in their

pleadings by which their purported admission is

negated.

(c) The learned trial Judge failed to take into

account the pleadings of the parties in their

entirety before reaching a conclusion that the

appellant indeed admitted owing the respondent.

2. The learned trial Judge erred in law by

prematurely delving into, pronouncing and

adjudging on facts in respect of which the parties

joined issues, when no evidence is led in respect of

thereof to warrant judicial pronouncement on

them.

PARTICULARS

(a) The appellant averred in its pleading that it

will contend at the trial that these is a valid sell

and

Delivery of title to the respondent in respect of the

property over which the alleged sum of

N60,000,000.00 was paid

(b) The matter did not proceed to full-blown trial

17

and no evidenced was led by either of the parties in

respect of the facts averred to in their respective

pleadings.

(c) The learned trial Judge pronounced on the issue

of the delivery of title, failure of consideration

and creation of third party interest without any

evidence led and heard.

3. The learned trial Judge erred in law and arrived

at wrong conclusion by holding that the averment

contained in paragraph 6 of the appellant's

statement of defence filed at the lower court

amounted to an admission, contrary to the spirit of

judicial position that requires admission to be

express, direct and positive.

PARTICULARS

(a) The law is settled that facts are considered

admitted only if they are voluntarily and

unconditionally admitted.

(b) The appellants admitted receiving the sum of

N60m from the respondent but claimed meeting its

own side of the contractual obligations relating to

the delivery of possession.

(c) A claim of receipt of consideration and discharge

of reciprocal obligation, being conditional, cannot

be said to be an admission in law.

4. The learned trial Judge erred in law and

exercised his discretion wrongly by failing to

require facts purported to have been admitted by

the appellants relating to the sum of 60m to be

proved otherwise than any such purported

admission having regard to the express denial of

the purported liability by the appellant.

18

PARTICULARS

(a) The appellant filed a counter-affidavit to the

respondent motions for judgment and denied the

respondent claim for failure of consideration in

respect of the sum of N60m it received from the

respondent.

(b) The law is settled that the court may, in its

discretion, require the facts admitted to be proved

otherwise than by an admission.

(c) That it is a prudent exercise of such discretion

on the part of the court to require facts admitted to

be proved particularly in cases where the purported

admission is vague, contentious and not express.

(d) That it is not judicious exercise of discretion for

the learned trial Judge to enter judgment on the

basis of an admission that is in itself contentious

between the parties.

5. The learned trial Judge erred in law and arrived

at a wrong conclusion by taking into consideration

extraneous considerations to arrive at a decision by

which he adjudged the appellants liable to the

respondent in the sum of N60m.

PARTICULARS

"(a) The learned trial Judge based his conclusion

that the appellants are liable to the respondent on

the basis that the respondent have not enjoyed

reciprocal consideration from the appellant in

respect of the consideration of the N60m paid.

(b) That the parties have joined issues on the

terms of alleged failure of consideration.

(c) That no evidence is led on the issue of the

failure of consideration to give basis for the learned

19

trial Judge finding of facts relating to the failure of

consideration".

I am quite conscious of the enormity of the problem

besetting both the courts and counsel who practice

before them when called upon to determine the

nature of a ground of appeal, whether they are of

law alone or of fact or of mixed law and fact. The

reason being that there is a thin line between a

ground of law alone and a ground of mixed law and

fact. But there are some principles which have

evolved over the years to serve as our beacons or

guides.

In this connection, an issue is classified as of law

when it deals with application or misapplication of

laws or interpretation of a rule of law. In United

Bank for Africa Limited v. Stahlbau GMBH & Co. KG

(1989) 3 NWLR (Pt.110) 374 Supreme Court

implored courts engaged in differentiating between

a ground of law and a ground of fact to scan the

relevant ground or grounds of appeal carefully to

see whether the ground deals with

misapprehension of the court below of the law or its

misapplication of the law to the facts already

proved and accepted which, in that case, would be

question of law or one that would involve

questioning the evaluation of facts by that court

before application of law which would result in a

question of mixed law and fact. See Ogbechie v.

Onochie (1986) 2 NWLR (Pt.23) 484 and Nwadike

& Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67)

718; Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203)

286, 312; and in P.N. Udoh Trading Co. v. Abere

20

(2001) 5 SCNJ 274, 282; (2001) 11 NWLR (Pt.723)

114: the Supreme Court per Kalgo, JSC, reiterated

at P. 128 the principle enunciated in U.B.A. v.

Stahlbau (supra) when he said:

"In the light of the principles enunciated in the

above decided cases of this court, I have examined

the grounds of appeal filed by the appellant in this

case and find that grounds 2, 5 and 6 cannot be

classified as grounds of law". This is so, because in

my respectful view all of them, read with their

respective particulars, cannot properly be

determined on construction of any statutory

provisions. But grounds 1,3 and 4 can all be

answered by relevant law or rule of law and they

are in my view, pure grounds of law.

And at Pp. 142-143 of the same report, Ogundare,

JSC said:

"This court has had occasions to pronounce on the

test to be applied in determining whether a ground

of appeal is one of law alone or of mixed law and

fact. I refer to such cases as Ogbechie v. Onochie

(1986) 2 NWLR (Pt.23) 484, Nwadike v. Ibekwe

(1987) 4 NWLR (Pt.67) 718 at 744 - 745;

Bamgboye v. University of Ilorin (supra); Comex

Ltd. v. N.A.B. Ltd. (supra). In Ogbechie Eso, JSC,

observed at page 91 of the report:

"There is no doubt that it is always difficult to

distinguish a ground of law from a ground of fact

but what is required is to examine thoroughly the

grounds of appeal in the case concerned to see

whether the grounds reveal a misunderstanding by

the lower tribunal of the law or a misapplication of

21

the law to the facts already proved and admitted, in

which case it would be 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.

Applying these tests to the grounds of appeal in

this appeal, it is clear that none of the grounds of

appeal qualify as grounds of law simpliciter. The

five grounds are not grounds of law alone. They

are, at best, grounds of mixed law and fact as they

discussed absence of evidence to prove the claim.

In the circumstance of this appeal, since the

grounds of appeal filed alone with the notice of

appeal do not qualify as grounds of law alone, the

appeal could not have been brought as of right

under the provisions of section 241(1)(b) of the

Constitution of the Federal Republic of Nigeria,

1999 (supra). From the circumstances of this

appeal, the appeal could only competently be

brought if leave of this court or of the court below

were sought before the relevant notice of appeal

were filed, pursuance of section 242( 1) of the

Constitution which provides thus:

"242(1) Subject to the provisions of section 241 of

this constitution, an appeal shall lie from decisions

of the Federal High Court or a High Court of Appeal

with the leave of the Federal High Court or that of

High Court or the Court of Appeal". ()

Since the requisite leave was neither sought nor

obtained before the appeal was brought and the

22

time to ask for such leave has expired (by virtue of

section 25(2)(a) of the Court of Appeal Act, Cap. 75

of the Laws of the Federation of Nigeria, 1990), I

respectfully find this appeal incurably defective,

incompetent and strike it out for incompetence. See

Registered Trustees of Amore v. Awoniyi (1994) 7

NWLR (Pt.355) 154, 189; Arowolo v. Adimula

(1991) 8 NWLR (Pt.212) 753; Ogbeehie v. Onoehie

(supra); Ogidi v. Egba (1999) 10 NWLR (Pt.621)

42, 72.

The respondent is entitled to costs and I make

order as to costs which is assessed at N5,000.00 to

the respondent because costs follows the event.

Brief in the appeal had been filed and exchanged.

DALHATU ADAMU, J.C.A.: At the hearing of this

appeal in this court on 6/2/03, this court raised suo

motu the issue or question as to its competence or

otherwise. This also begs the question on whether

or not the appeal before this court is competent. It

will be competent if the decision of the learned trial

Judge in which he entered judgment on part of the

plaintiff's claim alleged to have been admitted by

the defendant is treated or regarded as a final

judgment. On the other hand, the appeal would not

be incompetent if that decision of the trial court is

regarded as an interlocutory decision. That is the

position as postulated under or by the combined

reading of sections 241(i)(a)

and (b) and 242(1) of the Constitution of the

Federal Republic of Nigeria, 1999. Under the two

constitutional provisions, an appeal to this court

23

can be either as of right where it is against the final

order of the trial court or where it's ground or

grounds involves or involve questions of law alone.

Conversely, and by virtue of section 242(i), if the

appeal is against an interlocutory order of the trial

court or where its ground(s) involve questions

other than those of law alone, the appeal cannot lie

as of right but must be with the leave either of the

trial court or of this court. From the poser raised by

the court suo motu, the competence or otherwise of

the present appeal depends on the finality or

interlocutory nature of the trial court's partial

judgment on part of the plaintiff's claim said to

have been admitted. The learned counsel to both

parties were asked to address the court on this vital

question and they both offered or volunteered to

file their respective written addresses on the

question which they did with each supporting his

stand or interest on the issue. The test for

determining whether a decision is final or

interlocutory as given in Omonuwa v. Oshodin

(1985) 2 NWLR (Pt.10) 924 which is to the effect

that where trial court decides that it has no

jurisdiction, that is a final decision whereas if it

decides that it has jurisdiction its decision will be

interlocutory is not of general application but is

only confined to the decision of an appellate court.

Thus, it does not apply to a trial court whose

decline of jurisdiction would not give rise to a right

of appeal but will only be interlocutory the appeal

against which must be with leave and must be

made within 15 days of the decision - See Bowaje

24

v. Adediwura (1976) 6 SC 143.

In his effort to convince us that all the five (5)

grounds of appeal filed in this case are purely

grounds of law the learned counsel for the

appellant in his written address only set out the

grounds without their particulars. This in my view

is a lame tactic as the particulars are also part of

the grounds which they complement. This court is

not bound by the description or classification of the

grounds by the learned counsel. Rather, it will

peruse and scrutinize the said grounds and their

particulars in order to arrive at their proper

classification as to whether they are grounds of law

or of facts simpliciter or of mixed law and fact.

Although it has been said that the dividing line

between a ground of law and fact is a very thin

one, I have no difficulty after a careful perusal of

the five(5) grounds and their particulars in the

present case, in finding that none of them is or

qualifies as a ground of law simpliciter. They can

only be properly regarded of or qualify as grounds

of mixed law and facts for which leave to appeal is

required. Since it is not in dispute that the

appellant herein did not seek for or obtain leave

before filing his appeal, nor did he file it within 14

days of the judgment, his appeal without the

requisite is consequently incompetent. In the result

the appeal has been rendered incompetent - See

Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718;

Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159;

Abidoye v. Alawode (2001) 6 NWLR (Pt.709) 463;

Nigerian Air Force v. Shekete (2002) 18 NWLR

25

(Pt.798) 129 at 151- 152; Ifediorah v. Ume (1988)

2 NWLR (Pt.74) 5 at 6; and Tarhule v. Ikyombe

(1998) 13 NWLR (Pt.581) 293 at 299.

For my above consideration and the fuller reason

given in the leading ruling of my learned brother,

Salami JCA which I adopt, I also hereby strike out

the appeal for incompetence while abiding by the

order on costs as made in the said leading ruling.

JOSEPH JEREMIAH UMOREN, J.C.A.: I have had

the preview of the lead ruling of my learned

brother, I.A. Salami, JCA. He has comprehensively

and exhaustively discussed the facts and applicable

principles of law.

I am in agreement with him that the grounds of

appeal were a mixed grill of both law and fact, and

as such leave was of essence in bringing an appeal,

pursuant to the provisions of section 241 (1) (b) of

the Constitution of the Federal Republic of Nigeria,

1999 and a preponderance of the decided cases.

This appeal without leave of court is incompetent

and not properly before the court and ought to be

struck out and I also hereby strike it out.

I abide by other orders made in the lead ruling

including order as to costs.

Appeal dismissed.

Appearances

26

Appellant not represented by

counsel

D.D. Onietan, Esq.For

27

Respondent

For Appellant