Effect of A Failure To Obtain the Leave of Court Where Same is a Condition Precedent (Law Report)

5356
BARRISTER FRANC FAGAH UTOO v ALL PROGRESSIVES CONGRESS (APC) & ORS

Legalpedia Electronic Citation: [2018] legalpedia SC. 93/2017
Areas Of Law:
Appeal, Court, Election, Jurisdiction, Practice And Procedure, Words And Phrases

Summary Of Facts:

The Appellant, as Plaintiff instituted an action vide an Original Summons against the Respondents wherein he sought the determination of the some questions among which are: Whether the 1st Defendant acted in accordance with sections 31 (1) & 87 (4) (c) (II) of the Electoral Act, 2010 (as amended) to have forwarded the name of the 2nd Defendant to the 3rd Defendant as candidate in the forthcoming 2015 general election in Makurdi/Guma Federal Constituency of Benue State when the 2nd Defendant neither participated nor emerged as winner of the primary election conducted on the 7th day of December, 2014 in Makurdi.

The Plaintiff hence sought orders, declaratory and injunctive reliefs, among which is a declaration that it is mandatory for the 1st Defendant to forward the name of the Plaintiff who won the primary election conducted by the 1st Defendant in the Makurdi/Guma Federal Constituency of Benue State on the 7th of December, 2014 to the 3rd Defendant in accordance with the Electoral Act 2010 (as amended).

The trial court dismissed the case of the Plaintiff/Appellant. Being dissatisfied by the said decision, the Appellant appealed to the Court of Appeal, Abuja, and same was dismissed. Further dissatisfied, the Appellant has filed this appeal. Counsel to the 2nd Respondent filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the appeal on grounds that by virtue of section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 27(1)(4) of the Supreme Court Act, 2004 and Order 2 Rule 32 of the Supreme Court Rules, leave of court is essential to appeal against the concurrent judgements and that the Grounds of Appeal is one of mixed law and fact for which the Appellant failed to secure leave of court before filing the Notice of Appeal.

 

Held:

Appeal Dismissed

ISSUE FOR DETERMINATION:
None

Rationes:

MISDIRECTION – WHEN DOES A MISDIRECTION OCCUR?

“It is settled law that misdirection is an error made by a Judge in instructing the jury upon a trial of a cause. However, in a legal system such as ours in which the Judge plays the roles or functions of both the jury and Judge, a misdirection occurs when the Judge misconceives the issue, whether of facts or law, or summarises the evidence inadequately or incorrectly. In this situation, the misdirection may take the form of a positive act or mere non-direction – see Chidiak vs. Laguda (1964) NMLR 123 at 125; Nwadike vs Ibekwe (1987) 4 NWLR (pt. 67) 718 AT 744.” PER W. S. N. ONNOGHEN, C.J.N.
GROUND OF APPEAL – GUIDING PRINCIPLE IN DETERMINING WHETHER A GROUND OF APPEAL IS ONE OF LAW, FACTS OR MIXED LAW AND FACTS
“On the guiding principle in determining whether a ground of appeal is that of law; facts or mixed law and facts, this Court in Ogbechie vs. Onochie (1986) 3 S.C. 54, per ESO, JSC stated 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 misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be 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 W. S. N. ONNOGHEN, C.J.N.
GROUND OF APPEAL – WHEN IS A GROUND OF APPEAL ONE OF MIXED LAW AND FACT?
“When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence grounds of appeal challenging such conclusions are grounds of mixed law and fact, Ajayi and Anor v Omoroghe (1993) LPELR -290 (SC) 23; F-G; MDPDT v Okonkwo [2001] 3 SC 76; ACB Plc v Obmiami Brick and Stone Nigeria Ltd [1993] 6 SCNJ 98.” PER C. C. NWEZE, J.S.C.
JURISDICTION OF COURT – EFFECT OF A COURT ADJUDICATING IN A MATTER WITHOUT THE REQUISITE JURISDICTION
“The Supreme Court, like other courts in the land, is a creation of statute. The jurisdiction of courts is specified and governed by the provisions of the Constitution or the statute that created them. A court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction are a nullity, no matter how well conducted and no matter how sound the decision or orders made therein. It has been held that the issue of jurisdiction is extrinsic to adjudication. See:Madukola Vs Nkemdilim (1962) 1 ALLNLR 587 @ 596: Dapianlong Vs Dariye (2007) 4 SC (Pt. III) 118; A.G. Lagos State Vs Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Petrojessica Ent. Ltd Vs Leventis Tech. Co. Ltd. (1992) 5 NWLR (Pt. 244) 675.” PER K. M. O. KEKERE-EKUN, J.S.C.
APPEAL – INSTANCES WHEN AN APPEAL SHALL LIE AS OF RIGHT AND WITH LEAVE TO THE SUPREME COURT
“By virtue of Section 233 (2) of the 1999 Constitution (as amended), an appeal shall lie from decisions of the Court of Appeal to the Supreme Court where the grounds of appeal involve questions of law alone. Where the questions involve facts or mixed law and facts, the leave of this court or the Court of Appeal must first be sought and obtained. See: Section 233 (3) of the Constitution.” PER K. M. O. KEKERE-EKUN, J.S.C.
LEAVE OF COURT – EFFECT OF A FAILURE TO OBTAIN THE LEAVE OF COURT WHERE SAME IS REQUIRED TO FILE GROUNDS OF APPEAL
“Where leave is required and not obtained the affected ground(s) of appeal would be incompetent and liable to be struck out. See Ogbechie Vs Onochie (1986) 2 NWLR (Pt. 23) 484; Faith Enterprises Ltd Vs B.A.S.F. Nig. Ltd. (2010) 1 SC (Pt. II) 186 @ 202 – 203; Akwiwu Motors Ltd. Vs Sangonuga (1984) 5 SC 184 @ 186.” PER K. M. O. KEKERE-EKUN, J.S.C.
GROUND OF APPEAL- DUTY OF COURTS IN DETERMINING WHETHER THE GROUNDS OF APPEAL ARE GROUNDS OF LAW OR OF MIXED LAW AND FACTS
“It is pertinent to note that the mere fact that an appellant describes a ground of appeal as a ground of law does not necessarily make it so. The court must carefully examine the grounds along with their particulars to determine whether the ground or grounds are in fact grounds of law or of mixed law and facts. See: Faith Ent. Ltd vs B.A.S.F. Nig Ltd. (Supra): Ejiwunmi Vs Costain (W.A.)Plc (19981 12 NWLR (Pt. 5761 149: Ogbechie Vs Onochie (Supra)”. PER K. M. O. KEKERE-EKUN, J.S.C.
GROUND OF APPEAL – DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACTS
Where any of the grounds of appeal reveal a misunderstanding of the law by the lower court or a misapplication of the laws to the facts already proved or admitted, it would be a ground of law. However, where the ground questions the evaluation of facts by the lower court before the application of the law, it would be a question of mixed law and fact”. PER K. M. O. KEKERE-EKUN, J.S.C.
NOTICE OF APPEAL – STATUS OF A NOTICE OF APPEAL WITH GROUNDS OF MIXED LAW AND FACT WITHOUT THE LEAVE OF COURT FIRST SOUGHT AND OBTAINED
Where all the grounds of appeal are of mixed law and fact and no leave was sought or obtained, the Notice of Appeal is incompetent, void and of no effect. See: Olowosoke Vs Oke (1977) 11 SC 1: Akwiwu Motors Ltd & Anr. Vs Sangonuga (Supra).” PER K. M. O. KEKERE-EKUN, J.S.C.
LEAVE OF COURT- REQUIREMENT FOR THE GRANT OF LEAVE OF COURT
“In addition to the constitutional provisions referred to above, Order 2 Rule 32 of the Supreme Court Rules provides:
Rule 32: where in an appeal to the court from the court below, the court below has affirmed the findings of fact of the court of first instance, any application to the court in pursuance of its jurisdiction under Section 233 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.
This Rule therefore provides that not only must leave be sought and obtained in the circumstances provided in Section 233 (3) of the Constitution, where the appeal is against concurrent findings of fact, the appellant must demonstrate the existence of exceptional circumstances to warrant the exercise of the court’s discretion in its favour. In other words leave is not granted as a matter of course.”
–         PER K. M. O. KEKERE-EKUN, J.S.C.
COMPETENCE OF COURT- INGREDIENTS THAT DETERMINES THE COMPETENCE OF A COURT
“Since Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 at 593 was handed down it has remained a locus classicus as to when a court is competent to assume jurisdiction to entertain a suit or matter. It is stated clearly therein that a court is competent when:-
1.   It is properly constituted as regards members of the bench, and no member is disqualified for one reason or the other; and
2.   The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court exercising its jurisdiction, and
3.   The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” PER E. EKO, J.S.C.
Statutes Referred To:

Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Electoral Act, 2010 (as amended)
Evidence Act, 2011
Supreme Court Act, 2004
Supreme Court Rules

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