3PLR – ABBEY V. ALEX

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ABBEY

V.

ALEX

COURT OF APPEAL

(PORT HARCOURT DIVISION)

FRIDAY, 26TH APRIL, 1991.

SUIT NO. CA/E/164/84

3PLR/1991/2  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS  

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Presided and Read the Leading Ruling)

OWOLABI KOLAWOLE. J.C.A.

BRAIMAH AMEN OMOSUN, J.C.A.

 

BETWEEN

1. AKIO ABBEY
2. CHIEF J.A.IKIROMA-OWIYE
3. CHIEF J.K. BENIBO, J.P
4. CHIEF S.A. WOKOMA ABALI
5. CHIEF P.O DIC-BENIBO
6. CHIEF I.H DAVIES

 

AND

1. CHIEF ALHAJI IBRAHIM FUBARA ALEX
2. OBEDIAH T.L. ELEKIMA
3. STEPHEN KIENPRIMA

 

REPRESENTATION

C.O.I. Joseph, ESQ. (with him, Miss E. Essien) – for the Applicants

1. Ofodile, ESQ. SAN (with him, E. Ofodile, ESQ) – for the Respondents

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Appeal from Court of Appeal to Supreme Court- Notice of appeal not containing a single ground of law, – Effect thereof.

PRACTICE AND PROCEDURE – APPEAL – Appeal from Court of Appeal to Supreme Court – Question of lam, for purposes of determining whether leave to appeal is required – Meaning of.

PRACTICE AND PROCEDURE – APPEAL – Appeal from Court of Appeal to Supreme Court – Question of law, Question of fact, Question of mixed law and fact -Meanings and distinctions for purpose of determining whether leave to appeal is necessary.

PRACTICE AND PROCEDURE – APPEAL – Appeal from Court of Appeal to Supreme Court -Where leave required -Failure to obtain leave -Notice of appeal not containing a single ground of law – Effect on application for stay of execution.

PRACTICE AND PROCEDURE – APPEAL – Exercise of discretion – Whether a question of lam, or fact for purpose of leave to appeal from Court of Appeal to Supreme Court

PRACTICE AND PROCEDURE – APPEAL – Findings of facts -Whether a question of law or of fact which requires leave to appeal to Supreme Court.

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – Classification of – Relevance of particulars

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – Complaint of error in lam, and misdirection in the some ground – Validity

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – Ground complaining against findings of fact – Whether one o/’ (am- or fact

PRACTICE AND PROCEDURE – APPEAL -Grounds of appeal -Ground of pleading against exercise of discretion to amend pleadings -Nature of-Whether one of law of fact

PRACTICE AND PROCEDURE – APPEAL- Grounds of appeal – Whether ground one of law of fact or of mixed law and fact – How determined.

PRACTICE AND PROCEDURE – APPEAL – Stay of execution of judgment pending appeal – Onus on applicant

PRACTICE AND PROCEDURE – APPEAL –Stay of execution pending appeal –Notice of appeal containing grounds all requiring leave to appeal – Failure to obtain leave – Effect on application for star of execution

PRACTICE AND PROCEDURE – COURT – Misdirection be court- Meaning of-When does it occur.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Stay of execution of judgment pending appeal – Onus on applicant

PRACTICE AND PROCEDURE – Appeal – Appeal front Court of Appeal to Supreme Court – Question of last, Question of fact. Question of mixed law and fact – Meanings and distinctions far propose of determining whether leave to appeal is necessary.

PRACTICE AND PROCEDURE – Stay of execution of judgment pending appeal -Onus on applicant

PRACTICE AND PROCEDURE – Stay of execution pending appeal- Notice of appeal containing, grounds all requiring leave to appeal -Failure to obtain leave – Effect on application, for star of execution

WORDS AND PHRASES – Misdirection – Meaning of

WORDS AND PHRASES – “Question of fact” ; “Question of law”’ – Meanings of.

WORDS AND PHRASES – “Question of law. Question of fact” . Question of mixed lam, and.fact – Distinctions and meanings of

 

MAIN JUDGEMENT

OGUNDARE, J.C.A. (Delivering the Leading Ruling):

By an application filed pursuant to section 18 of the Court of Appeal Act, 1976 the defendants/applicants move the Court for an order staying execution of the judgment of this Court given on 15th November, 1989 pending the determination of the appeal to the Supreme Court. The application is supported by an affidavit sworn to by the 1st applicant and to which are exhibited the Notice of Appeal, the Collector’s Receipt No. 903610 for the filing of the Notice of Appeal, the Conditions of Appeal, Collector’s Receipts Nos S099492 and 5099493, Enrolment of Order of this Court dated 8th January 1990 and Enrolment of Order of this Court dated 5th March; these documents are marked Exhibits A-E1 respectively.

 

1st Respondent swore to a counter-affidavit in opposition to the application. The 1st applicant also swore to another affidavit in reply to the counter-affidavit.

 

In moving this Court for the order sought, Mr. Joseph of counsel for the applicants observed that on 8/1/90 this Court granted the applicants an order for leave to appeal to the Supreme Court and for an order for stay of execution pending appeal. He further observed that on 5/3/90, on the application of the respondents to set aside the orders made on 8/1/90 on the ground of non service on them of the motion papers this court made an order embodied in Exhibit E1. It is learned counsel’s view that the order for stay of execution made on 8/1/90 was not set aside. Learned counsel said he had brought the present application out of the abundance of caution.

 

Mr. Joseph submitted that there was an appeal pending to the Supreme Court and referred to Exhibit A. He said that Exhibit A was filed within time. Learned counsel submitted that all the grounds of appeal contained in Exhibit A were grounds of law notwithstanding grounds 11- V were christened “error in law and and misdirection on the facts.” He cited Metal Construction (W.A) Ltd v. Mighore – In re Ogundare (1990) 1 NWLR (Pt. 126) 299. He submitted that ground II alleged a wrong inference drawn by the passage complained of the established facts. This, learned counsel submitted,. was an issue of law. He also submitted that ground I was aground of law in that allowing amendment of pleadings was an issue of law. Learned counsel conceded it that ground I questioned the exercise of this Court’s discretion to order an amendment of pleadings.

Learned counsel also submitted that the grounds of appeal raised substantial issues to be decided by the Supreme Court. He therefore, urged the Court to grant stay so as not to destroy the res. He relied on ‘Kigo v. Holman Bros (1980) 5-7 SC 60. Learned counsel further submitted that the appeal to the Supreme Court wag not unintelligible and relied on Osafile v. Odi (No1) (1990) 3 NWLR (pt. 137) 130 to show that though the previous orders have been set aside they were still relevant as indicative of the opinion of this Court. He admitted that the applicants were adjudged to be trespassers on the land in dispute by the trial High Court and their appeal to this Court was dismissed. Learned counsel observed that paragraph 17 of the counter-affidavit was answered in paragraph 6 of the further affidavit. He informed the Court that the 1st applicant lives in the house he built on the land with his family. He urged the court to strike our paragraphs 5,11 and 14 of the counter­/affidavit as offending the provisions of the Evidence Act. Finally, learned counsel urged the Court to grant prayer sought.

 

Mr. Ofodile SAN of counsel for the respondents urged the Court to dismiss the application. He argued that all the grounds of appeal are grounds of fact and, i therefore, leave to appeal was required. And leave not having been obtained, learned Senior Advocate submitted, the appeal to the Supreme Court was incom­petent. He further submitted that the applicants having earlier sought leave to appeal could not now be heard to say that their grounds of appeal were grounds of law and therefore competent. He relied on Ojemen v. His Highness William Momodu II (1983) 3 SC 173, 208-210; (1983) 1 SCNLR 188.

 

Learned Senior Advocate submitted that the status quo ante helium was as depicted in Exhibit G in the court below, that is, applicants’ plan, where it was shown in 1975 that the 1st applicant’s building was under construction. He urged that the order for stay be refused as it would amount to allowing applicant to benefit from his own wrong-doing.

 

This application is hinged on the fact that there is pending a competent appeal to the Supreme Court. Is the appeal to the Supreme Court brought by Exhibit A competent? Mr. Joseph answers this question in the affirmative while Mr. Ofodile is of the contrary view. The question of the competence of the appeal rests on the five grounds of appeal contained in Exhibit A. It is not disputed that leave to appeal has not been obtained. The appeal, therefore, was brought as of right.

 

Now, section 213 of the Constitution which gives right of appeal from this court to the Supreme Court provides as follows:­

 

“2l3(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

 

(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.

 

It is beyond question that, having regard to the above provisions, the applicants’ appeal to the Supreme Court would only be competent if their grounds of appeal, or any of them, involve questions of law alone. In the latter case, it would only be competent as regards the grounds that involve questions of law alone. If, however, all the grounds of appeal do not involve questions of law alone but of fact and/or mixed law and fact, their appeal would be incompetent as they would require leave either of this court or of the Supreme Court, to appeal. And this leave they have not obtained from either court – see: Ojemen & Ors v. H.H. William O. Momodu II & Ors(supra).See also Metal Construction (W.A)Ltd Migliore: In re Ogundare atp.311 where Karibi-Whyte, J.S.C. delivering the lead judgment of the Supreme Court said:

 

.”..What then is a ground of Appeal? 1 consider it presumptuous, but will still venture to define aground 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 terns 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 founded 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.I 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. Ibekwe (1987) NWLR (pt.67) 718 Ogbechie v. Onochie (No.l) (1986) 2 NWLR (pt. 23) 484, Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5, Ojemen v. Momodu 1l (1983) 1 SCNLR 188; Obijuru v. Ozims (1985) 2 NWLR (pt.6) 167.”

 

It is therefore necessary to examine the five grounds of appeal contained on Exhibit A to determine whether they, or any of them, involve questions of law alone as submitted by learned counsel for the applicants. In determining this issue, the epithet given to each ground of appeal is not the determining factor but the content of the ground including the particulars thereto. As Obaseki J.S.C. put it in Ojemen & Ors v. H. H. William O. Momodu I1 & Ors (supra) at page 211:

“Having briefly examined all the grounds of appeal, it is probably necessary to emphasise that this Court will not be misled by the mere description of a ground of appeal as a ground complaining of Error in law when in fact, particulars show clearly that complaint or the substance thereof is against the evaluation assessment, weight of evidence findings of fact or a complaint (of) misdirection on the facts or mixed law and fact.”

 

See also Metal Construction (WA.) Ltd v. Migliore: In re Ogundare (supra) at pp.311-312 per Karibi – Whyte, J.S.C. where the learned Justice said:

 

“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).”

 

The learned Justice of the Supreme Court quoted with approval the dictum of Nnaemeka-Agu, J.S.C. in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, 743 where the latter said:

……. it is a recognized 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 christening it “error of law” or “misdirection in law.”

 

The grounds of appeal contained in Exhibit A read as follows –

 

1. The Learned Justice of Appeal erred in law in allowing an amendment of the Respondents’ Statement of Claim and thereby allowing the Respondents to assume a stand different from that in the High Court despite opposition by the Appellants.

 

Particulars

 

(a)     The action of the respondent being in trespass is in per­sonam.

 

(b)     Allegation of trespass and in particular the evidence in support thereof is against the 1st appellant, that is to say, his act of erecting his building on the land in dispute.

 

(c)     The respondents in the High Court fought their claim without any need for an amendment even when the issue was raised at the address stage.

 

(d)     No issue on amendment was joined and none was decided in the High Court.

 

(e)     The amendment postulates an error in the judgment of the. High Court.

 

The Learned Justice of Appeal erred in law and misdirected themselves on the facts when they held at page 10 of the judgment thus in relation to Exhibit B;

 

The result of the exercise was to allow Tombia people the area where the school and mission buildings were built. I hold the view that Exhibit B cannot supercede the Native Court judgments.

 

Particulars of Error

 

(a)     It was never the case of the respondents as pleaded that the extent of the Appellant’ land is co-terminous with that of the school and mission promises.

 

(b)     Both parties relied on Exhibit B which was latter to the Native Court judgments.

 

(c)     Exhibit B never fixed the new boundary on the extent of the school and mission premises but on a distance 1216 ft 7 ins from KIENE BOUNDARY.

 

(d)     The same court found earlier on the same page lines 1 to 4 that consequent on the intervention of King Amachree VII the respondents parted with their land to the appellants.

 

(e)     The Native Court judgments, had earlier fixed the boundary between the parties on KIENE BOUNDARY.

 

The Learned Justices of Appeal erred in law and misdirected themselves on the facts by unduly relying on Exhibit A (the respondents’ survey plan when same was shown by the appellants in their survey plan Exhibit G) to be totally unreliable and inaccurate.)

 

Particulars of Error

 

(a)     Exhibit ‘A’ without showing Kiene boundary a cardinal feature on which King Amachree VII’s boundary hinges is devoid of any evidential value in ascertaining with preci­sion and particularity the respected boundary between the parties herein.

 

(b)     In relying on Exhibit A the Learned Justice of Appeal neglected completely to consider Exhibit G appellants’ survey plan which not only super-imposed Exhibit ‘A’ but also noted particularly Kiene boundary.

 

(c)     No plan in the 1948. case – A/4/48 though in possession of the respondents at all times material was produced neither was same produced to the respondents’ surveyor in pro­ducing Exhibit ‘A’ and no explanation was offered for non­production.

 

1. The Learned Justices of Appeal erred in law and misdirected themselves on the facts when they dismissed the appeal of the appellants even though the title postulated by the respondents by their pleadings was that of inheritance.

 

Particulars of Error

 

(a)     At page 6 line 29 to page 7 line I the learned Justices recognize the

title postulated by the respondents as that of inheritance.

 

(b)     At page 18 lines 1-2 the Court of Appeal with respect rightly held that estoppel was not the foundation of the respondents’ case yet went further to base the title of the respondents on the Native court judgments and King Amachree VII set­tlement.

 

(c)     The High Court did not recognize the King Amachree VII settlement as giving title to the respondents.

 

(d)     The Court of Appeal did not find the land in dispute herein as being the same in the Native Court cases even though parties joined issue on this to warrant the application of estoppel, and the production in evidence of the plan in the 1948 case pleaded by the respondent in their Reply to the Appellants’ Statement of Defence.

 

1. The Learned Justices of Appeal erred in law and misdirected themselves on the facts when they at page 17 of the judgment held thus “in my judgment, the onus of proof that the land previously litigated upon is the same as the land now in dispute was on the pleadings and evidence before the court fully discharged by the respondents.

 

The Learned Judge so found and he was right. The onus on the plaintiff to prove his title by positive evidence may be discharged by facts admitted by the defendants; thereupon it would be for the defendant to prove that the title belonged to him.”

 

Particulars of Error

 

(a)     Parties herein joined issue on whether or not the land now in dispute was included in the land previously litigated upon between the parties either in the Native Court cases and or in the Supreme Court of the Aba Judicial Division.

 

(b)     It was never the case of the respondents as pleaded that the land now in dispute is part of the school premises to warrant the finding on the location of the school.

 

(c)     The respondents never produced in evidence plan No. U24/ 48 of 7th July 1948 in suit No. A/4/48 even though they pleaded same.

 

(d)     There was no consideration of Exhibit G by the High Court vis-à-vis Exhibit A.

 

(e)     By virtue of Bello v. Eweka (1981) 1 S.C. 101 at 102-103 the respondents cannot discharge the onus on them by fact admitted (which was denied) by the appellants.”

 

Before deciding the nature of each of the above grounds of appeal I need first to refer to the authorities as to the meaning of the phrases” “ground of law,” “ground of fact” and “ground of mixed law and fact.”

 

In the Metal Construction (W A) Ltd case, where the Supreme Court re­viewed many of the authorities on the subject, Karibi-Whyte, J.S.C. said at pages 312-313:

 

“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 predetermined 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 to 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, and question of the exercise of judicial discretion. In a broader sense there is not much difference whether an act is right, or just or reasonable or whether that act has been done. The former is merely an exercise of moral judgment, an expression of opinion on the facts admitted and is therefore differentiated from the fact simpliciter. It is nevertheless a question of fact with exercise of discretion. In Griffiths v. J.P. Harrison (Watford) Ltd. (1963) A.C I 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 recognized 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 -Judicial 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 findings 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 may add that where the ultimate finding results in conclusions of law and fact, the finding involves question of mixed law and fact.

 

Obaseki, J.S.C. in his own judgment in the case said at pages 319-321 of the Report thus:

 

“What then is the demarcation line, the distinction between questions of law and questions of facts? What are the constituent elements in the concept of question of law and in the concept of question of facts? 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 from them as distinct from the legal consequences, rules applicable thereto and legal conclusion.”

 

Matters of fact are accordingly matters, circumstances acts and events which in legal controversy are determined by admissions or by evidences 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 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 intentions, 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 inference 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, questions 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 fights 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/0 Exportchleb (1965) 2 All ER 4 CA 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 difficult highlighted in Ogbechie v. Onochie (No.1) (1986) 2 NWLR (pt.23) 484 Ifediorah v. Ume (1988) 2 NWLR (pt.74) 5 and UBA v. Stahlbau GMBH (1989) 3 NWLR (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 misdirection 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 the nature of the questions involved in the ground. See Ojemen v. Momodu H (1983) 3 S.C. 173 at 209; (19$3) 1 SCNLR 188.

 

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.”

 

I now turn to the matter on hand. The grounds of appeal are already set down. I will now analyse them in the light of the above authorities.

 

Ground 1

 

This ground, as was, rightly in my view, conceded by counsel for the applicants, questions the exercise of its discretion by this Court to amend respondents’ pleadings. As this court must have considered the facts as given in evidence at the trial before deciding to exercise its discretion to amend the pleadings I cannot see how the exercise can be questioned without a consideration of the facts. In my respectful view, the complaint in ground 1, although christened error in law, raises in fact an issue of mixed law and fact. See N.N.S.C. v. Establishment Sima of Vaduz (1990) 7 NWLR (pt.164) 526

Ground 2:

 

Reading the ground along with its particulars there is no doubt whatsoever that this ground is essentially one of fact or, at best, of mixed law and fact. It is in no way a ground of law alone.

Ground 3

 

Reliance on evidence can only be a matter of fact. The whole tenor of this ground and its particulars puts in question the treatment given to Exhibit A a plan tendered at the trial vis-à-vis Exhibit G a plan tendered by the applicants. In my respectful view, the ground is one of fact and not of law alone.

 

Ground 4

 

This ground taken along with its particulars cannot by any stretch of imagination be described as a ground of law; it is essentially one of fact.

 

Ground 5

 

This ground questions a finding of fact made by this court. Both the ground and its particulars relate to the correctness of that finding in the light of the evidence offered by the applicants at the trial. That cannot be described as a ground of law.

 

The conclusion I reach is that none of the five grounds of appeal is a ground of law. The applicants therefore have no right of appeal as of right but only with the leave of this Court or of the Supreme Court. That leave not having been obtained, the applicants’ appeal is incompetent. One interesting fact in this matter is that in his affidavit of 16th March 1990 sworn to in support of the applicants’ motion dated 7th March 1990 and filed on 16/3/90 praying this Court for leave to appeal and stay of execution, 1st applicant deposed, inter alia, as follows:

 

“11.   That the document shown to me and marked as Exhibit “A” is a copy of the Notice of Appeal intended to be filed herein.

 

12. That I am informed by G.A. Graham-Douglas, SAN one of our Counsel and I verily believe him that it is essential to obtain the leave of this Honourable Court to file and argue the Grounds of Appeal as contained in Exhibit “A.”

 

13. That Exhibit “A” raises substantial points of mixed law and facts.” I find it inexplicable why the applicants changed their stand and abandoned the attempt to seek leave to appeal.

 

There is yet another point. Grounds II-V each complains of error in law and misdirection on the facts. It has been held that such as ground of appeal is bad and should be struck out- See: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at page 744 per Nnaemeka-Agu, J.S.C where he said:

 

“Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellants’ grounds clearly postulate. By their very nature one ground of appeal cannot be the two. For, the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence, fairly submitted to the consideration of the tribunal. (See Bray v. Ford (1895) A.C. 44, at p.49). In our system in which the Judge is Judge and Jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law or summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) 1 NMLR 123, at p.125. He may commit a misdirection either by a positive act or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection. It could be an error in law. This is why the appellants’ grounds 4, 5, 7 and 8 said to be “error in law and misdirection” are, above every other defects, obvious incon­gruities.”

 

If Grounds 1I-V are bad, this leaves Ground I which I have held is not a ground of law.

 

If the applicants’ appeal to the Supreme Court is incompetent, their application for stay of execution pending appeal to the Supreme Court then cannot stand.

 

I now come to the merits of the application. But before I consider this I like to clear an issue raised by the applicants’ counsel. On 8/l/90,this Court made an order staying the execution of the judgment of the court pending appeal to the Supreme Court – see Exhibit E. The respondents subsequently brought a motion seeking to set aside the orders made on 8/1/90 for non-service of the applicants’ earlier motion on the respondents. The motion was granted on 5/3/90 but in drawing up the order reference was not made to the order for stay of execution – see Exhibit E l. There is obviously an error to the drawing up of the order. This error is apparent on the face of Exhibit E 1. The position is that the order for stay of execution made on 8/1/90 was set aside on 5/3/90.

 

Having now cleared the ambiguity arising from Exhibit E1, I now turn to the merits of the application before us. From the affidavit in support of the application, it would appear that stay is being sought only in respect of the 1st applicant’s building on the land in dispute and in respect of which an injunction was granted by the trial High Court and affirmed by this Court. In his affidavit in support of the application 1st applicant deposed, inter alias, as follows:

“12    That I occupy the building on the land in dispute with my entire family ever since my retirement from service

 

13. That all damages and costs awarded in favour of the respondents have been paid to them.

 

14. That the respondents are threatening to take possession of the land in dispute and demolish the building and I believe that unless restrained by this Honourable Court, the respondents would make good their threat.

 

15. That I have no other building in Tombia to live in with my family.” In his further affidavit of 12/2/90, he reiterated as follows:

 

“5.     That paragraphs 14-24 of the said 1st Counter-Affidavit are not true.

 

6. That my family and I live in the house/building the subject matter herein which was in fact completed at the commencement of this suit.

 

7. That Tombia is my place of residence and I visit Port Harcourt only in the interest of my petty business.

 

8. That I am married with a fairly large family and I am a retired Secretary to the Government and Head of Service now serving as a member of the National Revenue Mobilisation, Allocation and Fiscal Commission and I have no other place of residence in my home town and that it will work great hardship on me and my family if the stay is not granted.

 

9. That it is not true that the land in dispute has been desecrated as alleged by the respondents or at all.

 

10. that the respondents have on three occasions attempted to damage the building, before the Appeal is determined.

 

11. That in furtherance of their intention the respondents with their agents organised and carried out armed attacks on the house of the respondents in this case, on the 1st and 2nd July, 1990 respectively. 12. That but for the timely intervention of the Nigeria Police, and the Traditional authorities of the Area including the Degema Local Government Council of Traditional Rulers and Chiefs as well as the Amanyanabo of Kalahari, His Royal Highness Chief Obaye Abiye Suku Amachree X C.O.N. and the Kalahari Council of Chiefs, the respondents would have carried out their threat to destroy the building the subject matter in this case.”

 

Interestingly though, the applicant, in the said affidavit (as well as in other affidavits sworn to by him earlier), gave his address as “24 Igbodo Street, Port Harcourt.” In his counter-affidavit, 1st respondent deposed, inter alia, as follows: “14 the instant application is just one of the devises adopted by defendants/appellants/applicants to stay put on the land in dispute while making fresh/further incursions

 

15. The 1st defendant/applicant has never occupied the house on the land in dispute.

 

16. The 1st defendant/applicant since his retirement has lived with his wife and immediate family at Port Harcourt.

 

17. The building on the land in dispute which was the immediate cause of action, is yet uncompleted and unfit for human habitation.

 

18. Prior to the erection of the house hereinbefore mentioned, the 1st defendant had never owned any house on the land in dispute. On visits to his native Tombia town he has always stayed with his relatives.

 

19. Furthermore, the building in question occupies a tiny portion of the entire area by the order for perpetual injunction.

 

20. The plaintiffs/respondents have been denied of the fruits of their judgment by the defendants/applicants on the grounds that their motion for stay was pending.

 

21. The plaintiffs/respondents in utter disregard of the court order have gone into portions of the land to desecrate the same by burying their dead ones thereon.

 

22. We shall be prejudiced by this application being granted as we shall be denied the right to use vast portion of land to which the injunction is tied.

 

23. We have neither threatened nor intended to take possession of or demolish the 1st defendant’s uncompleted building on the land in dispute.”

 

In view of his address given in his affidavits I do not believe that 1st applicant lives in Tombia and only comes to Port Harcourt for brief moments to pursue his business. I am not, therefore, satisfied that exceptional circumstances have been shown by the applicants why this court must deprive, how-be-it temporarily, the respondents of the fruits of judgment in their favour. The order for stay will therefore be refused.

 

In conclusion, for the reasons given by me above this application fails and it is dismissed by me with N200.00 costs to the respondents.

 

KOLAWOLE, J.C.A.: I have had a preview of the ruling just delivered by my learned brother, Ogundare, J.C.A. He has dealt very exhaustively with the intricate issues canvassed before us. I entirely agree with his reasoning and conclusion.

 

I also will dismiss the application with costs assessed at N200.00 in favour of the respondents.

 

OMOSUN, J.C.A.: I have read in advance the ruling of my learned brother Ogundare, J.C.A. just read and I agree that the application fails and is dismissed. I award N200.00 costs to the respondents.

 

Application dismissed.