In The Supreme Court of Nigeria

On Tuesday, 18th day of March, 1986

Between

J. B. Ogbechie & Ors.            .......            Appellants/Respondents

And

Gabriel Onochie & Ors.                  .......            Respondents/Applicants

Judgement of the Court

Delivered by

Kayode Eso J.S.C

Mr. Kehinde Sofola, S.A.N. has applied under Order 8 rule 2 (5) of the Supreme Court Rules, 1985 for an order for leave to file and argue six additional grounds of appeal in this case. The six grounds of appeal were all described by learned Senior Advocate as grounds of law.  Mr. Sofola's application is dated 12^th February 1986.

However, on 13^th  March 1986, Mr. Dapo Abudu, learned counsel representing the respondents, had filed a notice, under Order 2 rule 9 of the same Rules, of a preliminary objection to the appeal filed on behalf of the appellants by Mr. Sofola, Mr. Abudurs notice reads as follows:

Take notice that upon the hearing of this application for leave to file and argue additional grounds of appeal, the respondents shall contend that:

1.          The substantive cross-appeal and the motion aforesaid be struck out as being incompetent.

OR ALTERNATIVELY

2.          That the cross-appeal be dismissed for want of prosecution.

GROUNDS UPON WHICH THIS PRELIMINARY OBJECTION IS BROUGHT

1.         The cross-appeal is based on grounds of mixed law and fact as shown in the notice of cross-appeal filed by the respondents but no leave of either the Court of Appeal or the Supreme Court was obtained as required by section 213(3) of the 1979 Constitution.

2.         The brief in respect of the cross-appeal was not filed within time as required by Order 6 rule 5(1) of the Supreme Court Rules 1985.

We decided to take the two applications, that is, that of Mr. Sofola and that of Mr. Abudu, together, however taking the preliminary objection first.

It was the lusty contention of Mr. Sofola that the grounds contained in his original notice of appeal are all rounds of law, in which case, section 213(3) of the Constitution would not apply.  Learned Senior Advocate referred to the case of Edwards (Inspector of Taxes) v. Bairstow and Another (1955) 3 All E.R. 48 particularly the dicta of Viscount Simonds at p.55 where the learned law lord said:

It is true that the decision of the commissioners is only impeachable if it is erroneous in law, and it may appear paradoxical to say that it may be erroneous in law, where no question of law appears on the face of the case stated.  But it cannot be, and has not been questioned, that an inference, though regarded as a mere inference of fact yet can be challenged as a matter of law, on the grounds that I have already mentioned, and this is, I think, the safest way to leave it

Lord Radcliffe had said in the same case:

If the facts of any particular case are fairly capable of being so described it seems to me that it necessarily follows that the determination of the commissioners special or general to the effect that a trade does or does not exist is not erroneous in Point of law. ………. I except the occasions when the commissioners, although dealing with a set of facts which would warrant a decision either way, show by some reason they give or statement they make in the body of the case that they have misunderstood the law in Some relevant Particular.

The law lord concluded on the points:

All these cases in which the facts warrant a determination either way can be described as questions of degree, and therefore, as questions of fact.

In the case of O'Kelly V. Trusthouse Forte (1983) 3 All E.R. 456 it was the question of master and servant.  Ackner L.J. (p.468) related the approach of the Court of Appeal to the issue, question of law and question of fact and said:

It is clear that the approach of the Court of Appeal in the Young and Woods V. West case was that an error of law could be established if

(a)        the industrial tribunal took into account the wrong criteria in concluding that a contract was a contract of service or a contract for service and/or

(b)        if the tribunal although applying the proper criteria, gave the wrong weight to one or more of the relevant factors.

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.  Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact.  The issue of pure fact is easier to determine.

In an article titled Error of Law in Administrative Law by C  T. Emery, a lecturer in law in Durham University and Professor B  Smythe of the same University, contained in Volume 100 of the October 1984 issue of the Law Quarterly Review, to which Mr. Sofola had kindly directed our attention, the learned authors made the following postulations.

(i)         If the tribunal purports to find that particular events occurred although it is seised of no admissible evidence that the events did in fact occur, it is a question of law.  But where admissible evidence has been led its assessment is entirely for the tribunal; in other words it is a question of fact.

(ii)        If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning - it is a question of law.

(iii)       If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art - it is a question of law.

(iv)       If the tribunal though correctly treating a statutory word or phrase as a legal term of art errs in elucidation of the word or phrase - it is a question of law.

(v)        If the tribunal errs in its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of trained lawyer - it is error in law.

(vi)       1f, in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found.  In that event, the superior court has no option but to assume that there has been some misconception of the law.  But the issue may admit of more than one possible resolution.  The inferior tribunal's conclusion may be one of the possible resolutions; yet it may be a conclusion which the superior court (had it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree; and a superior court with jurisdiction to correct only errors of law will not intervene.

I think these postulates are illuminating.  They accord with the previous practice of this court in examining the thorny issues of law and fact and I will accept them.

In Board of Customs and Excise v. Ibrahim Barau (1982) 10 S.C. 48 at p.137, I said:-

"It may be necessary, at this stage, to say a few words on the function of a court of appeal vis-a-vis a trial court.  There seems to be a confusion between a court of appeal's treatment of questions of fact and questions of law which come before a court of appeal.  It is now trite law that a court of appeal does not treat with sanctity a trial court's use of the words 'I believe' or 'I do not believe'. Nor the phrase  - 'I find as of (sic) a fact.'  Whereas trial court fails to make use of the advantage it has of a witness before it a court of appeal is, no doubt, in as much a good position as the court of trial to deal with these facts - Fabumiyi & anor. V. Oluge & anor. 1968 N.M.L.R. 242 at page 247.  Woluchem and ors. v. Chief Simon Gudi and Ors. (1981) 5 S.C. 291 at p.326; see also Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582.

The Court of Appeal has to decide first, as a matter of law, that a trial court failed to make use of the advantage it had of seeing the witnesses before it before proceeding to substitute as a matter of fact its own finding made on the printed evidence.

A court of appeal is not per se a fact-finding court.  It reviews the application of the facts which have been found by a trial court to the circumstances of the case before that court.  It is only where there is a wrong application of such facts that the court of appeal interferes.  Where however the court of appeal finds as a matter of law that the facts have been correctly applied it does not interfere.  The court does not proceed any further to deal with facts.  See Akinloye and anor. V. Eyisola and anor. (1968) N.M.L.R. 92.  This fine distinction is very important for it goes into the jurisdiction which a court of appeal exercises under the Constitution.  While appeal to the court of appeal on the issue of law is as of right, an appeal on the facts is with leave of the court from where the appeal lies or the court to which the appeal lies.

The first thing a court of appeal learns is that it is not a court of trial.  It is not out to try a case, find the facts, or assess the witnesses.  See the admonition of this court to the defunct Western State Court of Appeal in Balogun and ors. v. Agboola (1974) 1 All N.L.R. (Part II) p.66.  Witnesses are not before a court of appeal.  Such court deals only with printed record and where it has cause to deal with facts, on printed evidence.  The other evidence, the important one, evidence of witnesses where demeanours are observed and manners of witnesses help the decision on credibility, is absent.  Where therefore a trial court fails to apply the facts, which it has found, correctly to the circumstances of the case before it, and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law and not of fact.

When the court of appeal finds such application to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not law.  Where the court of appeal interferes in such case and there is a further appeal to a higher court of appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower court of appeal is a ground of law and not of fact. It is only where there is an appeal against the finding  made by the court of appeal in this exercise that issues of fact arise and leave will be required.

Care must be taken to distinguish a circumstance of this nature from a complaint simpliciter, that the decision of the trial court is either against evidence or weight of evidence or contains unresolved contradictions in the evidence of the witnesses.  For in this latter set of circumstances what is being alleged is purely a ground of fact that requires leave for an appeal to a court of appeal or a further court of appeal. See s.213(3) and s.214(3) of the Constitution of the Federation 1979.

Now the grounds of appeal filed by Mr. Sofola in this appeal are as follows:

GROUNDS OF APPEAL:

(1)        The learned Justices of the Court of Appeal erred in law in reversing the decision of the learned trial judge who dismissed the plaintiffs' claim for declaration of title.

PARTICULARS

(a)        The learned Justices of the Court of Appeal failed to advert their mind to the express finding by the trial court to the effect that the traditional evidence given by the plaintiffs was unsatisfactory having tested the same by reference to facts in recent years as established by the evidence before him;

(b)       The learned Justices of the Court of Appeal should have held that as the plaintiffs failed to discharge the onus of proof which rested on them, the defendants were entitled to judgment as laid down in Nana Darku Frempong II & Ors. vs. Nana Owudu Aseku Brempong II & Ors. 14 W.A.C.A. 13;

(c)        The striking out of the plaintiffs' claim by the Court of Appeal is inappropriate in law and the order of dismissal by the learned trial judge should not have been disturbed;

(d)       It is in the interest of justice that there should be an end to litigation.

(2)        The learned Justices of the Court of Appeal erred in law in reversing the decision of the learned trial judge in that the said learned trial judge having properly assessed and evaluated the evidence before him, the Court of Appeal was incompetent in law to interfere with the learned trial judge's dismissal of the plaintiffs' claim for damages as laid down by the Supreme Court in the case of Otuaha Akpapuna & Ors. vs. Obi Nzeka II & Ors. (1983) 7 S.C. 1.

(3)        The Court of Appeal erred in law in awarding damages for trespass in favour of the plaintiffs when on the findings of the learned trial judge, the said plaintiffs were not in exclusive possession of the land in dispute and the court below thereby arrived at a wrong decision in the case.

(4)        The Court of Appeal erred in law in not following the proper approach in the award of costs as laid down in numerous decisions of the Supreme Court, namely, that the general rule is that the costs follow the event and that the court has unfettered discretion to award costs which discretion must be judicially exercised.

PARTICULARS

(a)        The Court of Appeal held that the trial court did not fail to exercise its discretion judicially

(b)       The award of N1,000.00 was in respect of a land case which lasted from 23/8/76 until the action was dismissed on 31/3/78 and was, after an appeal, sent back for a re-trial and finally decided on 18/4/83;

(c)        Six witnesses were called for the defence including a surveyor and the cost of producing a survey plan was incurred by the defendants;

(d)       The plaintiffs' counsel left the issue of costs to the discretion of the court.

Applying the principles already stated in both the English authorities, the writing of learned authors and the pronouncement of this court, grounds 1,2,3, contained in the notice of appeal are grounds of mixed law and fact.  They are caught by s.213 of the 1979 Constitution and are hereby struck out on the preliminary objection of Mr. Abudu.

Ground 4 still subsists.  It is a ground of law and this sustains the appeal.

The other objection of Mr. Abudu in regard to time of filing of brief is without substance as the rule of court permits the appellants to file the brief in his cross-appeal after receiving the respondent's brief.

The motion of Mr. Sofola, to put in additional grounds of appeal, which are grounds of law, is hereby granted.

Judgement delivered by

Uwais. J.S.C.

I have had a preview of the ruling read by my learned brother, Eso, J.S.C   I entirely agree with it. Accordingly original grounds of cross-appeal No's 1, 2 and 3 are hereby struck-out and the application to file additional grounds of cross-appeal is granted as prayed with N25.00 costs to the plaintiffs/appellants.

Judgement delivered by

Coker. J.S.C

I agree with the ruling and orders made by my learned brother, His Lordship Eso.  Grounds 1, 2, 3 are struck out.  The application to amend the grounds of appeal as set out in the application of Mr. Sofola is granted. The respondents are entitled to their costs fixed at N25.

Judgement delivered by

Karibi-Whyte. J.S.C.

I have had a preview of the ruling of my learned brother Kayode Eso, JSC, in this application.  I agree with him that the application succeeds.  I have no doubt, after examining the grounds of appeal filed and the particulars of error alleged, that grounds 1, 2, 3 contained in the notice of appeal are grounds of mixed law and facts.  Appellants having not obtained leave of this court or of the court below, they are caught by the provisions of section 213(3) of the Constitution 1979 and are accordingly struck out.  Ground 4, which is undoubtedly a ground of law still subsists.

The objection of Mr. Abudu with respect to the time for filing of brief is without substance.  The grounds of appeal having been filed as a cross-­appeal, the respondents are entitled to file the brief after receiving the appellants' brief.

Mr. Sofola S.A.N., had applied for additional grounds of appeal.  This application which is founded on grounds of law is hereby granted. N25 as costs to the plaintiffs/appellants.

Judgement delivered by

Kawu. J.S.C.

I agree with the ruling which has just been delivered by the Presiding Justice, my  Lord,  Kayode Eso, J.S.C. As no leave of this court has been obtained in accordance with the provisions of S.213(3) of the Constitution, grounds 1, 2 and 3 are incompetent and they are accordingly struck out.

Counsel