IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY, THE 11TH  DAY OF JUNE, 2021

BEFORE THEIR LORDSHIPS

AMINA ADAMU AUGIE                        JUSTICE, SUPREME COURT

UWANI MUSA ABBA AJI                    JUSTICE, SUPREME COURT

MOHAMMED AWAL GARBA               JUSTICE, SUPREME COURT

SAMUEL CHUKWUDUMEBI OSEJI       JUSTICE, SUPREME COURT

EMMANUEL AKOMAYE AGIM            JUSTICE, SUPREME COURT

                                                                                                                                  SC./991/2017

ALHAJI UMARU BABA                           ===            APPELLANT 

AND

1.            ALHAJI ALIKO MUHAMMAD, OFR  

2.            ALHAJI IBRAHIM YERIMA

3.            ALHAJI AUWAL TAHIR

4.            MALLAM YUSUF FARI

5.            LT. TOLULOPE ADEDOKUN

6.            ALHAJI ABUBAKAR D. UMAR

7.            MR. AYO ODEBISI                                                   RESPONDENTS

8.            MR. LUKA H. SALISU

9.            MRS. EKAETTE J. EBUKANSON

10.        MRS. BOLDE O. JIMOH

11.        DR. ABDULLAHI O. JIMOH

12.        PERSON UNKNOWN

13.        KADUNA STATE URBAN PLANNING AND

DEVELOPMENT AUTHORITIY (KASUPDA)

JUDGMENT

(DELIVERED BY EMMANUEL AKOMAYE AGIM)

This appeal No SC.991/2017 was commenced on 29-8-2017 when the appellant herein filed a notice of appeal against the Judgment of the Court of Appeal delivered on 14-7-2017 in Appeal No. CA/K/269/2015 affirming the Judgment of the High Court of Kaduna State delivered on 27-5-2015 in Suit No. KDH/KAD/752/2009 in favor of   the plaintiff  (now 1st respondent), granting all the reliefs claimed for by the plaintiff against the defendants (appellant and 2nd to 13th respondents).  The notice of appeal contained 3 grounds for the appeal. With the leave of this Court, the notice of appeal was amended on         16-12-2020 and the amended notice of appeal separately filed on 23-1-2020 was deemed properly filed and served. This amended notice of appeal contains four grounds of appeal.

       The briefs filed, exchanged and adopted by the parties herein are amended appellant’s brief, 1st respondent brief, 2nd respondent’s brief. The 3rd to 12th respondents chose not to file brief.

The amended appellant’s brief raised the following issues for determination-

1.       Whether having regards to Exhibit 4, the appellant had any reason to interface with the 1st respondent who appointed the 2nd respondent as his agent for the purpose of offer of sale/assignment of the properties in dispute. (Ground 1)

2.       Whether Court below was in error which error occasioned a miscarriage of justice when it held that there was no binding contract between the appellant and the 1st respondent? (Ground Two)

3.       Whether the Court below was not in error which error occasioned a miscarriage of justice when it failed to determine the issue in relation to provisions of Section 4(1) and (2) of Kaduna State Contract Law (Cap. 36) Law of Kaduna State 1991 as it affects the Appellant’s Counter Claim (Ground 3).

The 1st respondent’s brief raised one issue for determination as follows:

“Whether the lower court was justified in affirming the judgment of the trial court to the effect that there is no valid contract for the sale of the properties in dispute capable of being enforced by way of a decree of specific performance having regard to the fact that the parties were not ad idem apropos to the purchase price of the properties in dispute.”

The 2nd respondent’s brief adopted the issues raised for determination in the amended appellant’s brief.

The 13th respondent raised one issue for determination as follows:

“Whether the lower court rightly affirmed the judgment of the trial court when the Lower Court held that there was no binding contract between the Appellant and the 1st Respondent as the said parties were not ad idem as to the purchase price of the property, the subject matter of this appeal?

Before I delve into the determination of the merits of this appeal, let me first determine a preliminary point concerning the competence of the notice of appeal and the entire appeal.

It is obvious that all the grounds of appeal in the notice of appeal are grounds of facts or mixed law and facts. Yet the appellant filed this appeal without having first obtained the leave of the Court of Appeal or of this court to appeal on such grounds.   This is surprising because it is plain in  SS.233 (2) and (3) of the Constitution of the Federal Republic of Nigeria  1999  that  an  appeal to this court  on grounds of facts and mixed law and facts cannot be commenced without the leave of  the Court of Appeal or  of  this court to  appeal on  grounds of facts or mixed law and facts first obtained. These provisions are not new, as they  are carried over from   the 1979 Constitution. Case law that have developed from their application have existed for over five decades.  Therefore legal practitioners in appellate practice, particularly before this court, should know that   an appeal on grounds of facts or mixed law and facts to this court from the decision of the Court of Appeal affirming a trial court’s decision in an action arising out of dispute of title to land or contractual dispute, would not lie as of right by virtue of the provisions of  S.233(2) of the Constitution of the Federal Republic of Nigeria 1999,  that only appeals on grounds of law or appeals from decisions on the interpretation or application of the Constitution,  decisions on the contravention of the provisions of Chapter IV of the Constitution, decisions imposing or affirming imposition of sentence of death and decisions on the validity of election of President, Vice President of Nigeria, Governor and Deputy Governor of a State, or   on whether the term of office of Governor of Deputy Governor has ceased or  whether such office has become vacant,  and that   it is implicit in the said provisions of S.233(2) of the 1999 Constitution, that an appeal on grounds of facts or mixed law and facts can only be brought with the leave of court.   In all its decisions over five decades, this court has stated and restated this constitutional prescription  that an appeal on grounds facts or mixed law and facts cannot lie as of right from a decision not listed in Sub-section (2) of S.233 and that such appeal can only lie with leave of court by virtue of sub-section(3) of the same S.233.  This law,  has through the plethora of the decisions of this court   become settled. I wonder why Learned counsel for the appellant chose to file this appeal without first satisfying the constitutionally prescribed condition precedent to filing such appeal. Is it deliberate or a mistake. His description of the errors complained of in grounds 1 to 3 as errors of law indicate that the omission was deliberate and not a mistake. It can be reasonably assumed from his description of the errors as errors of law that he believed that leave of court to appeal on grounds of facts or mixed law and facts was not needed as   there are grounds of law. If he believed so in respect of grounds 1 to 3, what of the omnibus ground 4 that the decision of the Court of Appeal is perverse and unsupported by evidence.This omnibus ground is  plainly a ground of fact. He has no excuse for his failure to obtain leave of court to appeal on that ground.  It is wrong to characterize obvious grounds of facts or mixed law and facts as grounds  of law. It is settled law that the characterization or description of   a ground of appeal   does not determine the nature of the ground. See  Yusuf V U.B.N. Nig. Ltd (1996) 6  SCNJ 203.    As held by this court in Ugboaja V Akitoye-Sowemimo & Ors(2008) 7SC 1 “It is settled law that in order  to determine the  nature of the ground of appeal, one must look closely at the main ground together with the particulars thereof to see  whether it is a ground of law, fact or mixed law and fact. It is therefore not enough for counsel for  the appellant  to brand a ground of appeal a ground of law to make it one.”    The complains in  grounds 1 to 3   concern the evidential basis of the decision of the Court of Appeal.  Ground 1 complains against the decision of the Court Of Appeal concurring with the finding of the trial court that the appellant’s counter- offer of 17million naira as price for the disputed  4 plots  of land, was never communicated to the 1st respondent herein, that 1st respondent was not aware of it and did not accept it.  Ground 2 complains against the decision of the Court of Appeal affirming the finding of the trial court that the agreement to sell the disputed 4 plots did not come into existence and the refusal of the trial court  to order specific performance. Ground 3 complained that the Court of Appeal failed to pronounce on the issue concerning S.4 of Kaduna State Contract Law which touches on the counter claim of the appellant against the 1st respondent. The ground is predicated on the assumption that there was in existence a contract of sale of the disputed land and that there was   part performance of the contract.   It is clear   that the determination of this ground and its success or failure  depends entirely on  the result of the appeal on grounds 1,2 and 4  that complain against the concurrent findings that there was no such contract in existence  because the 1st respondent(the owner of the right of occupancy)  and the  appellant ( the  prospective buyer that was never disclosed to the 1st respondent) were not ad idem on the purchase price and other  fundamental terms of the  proposed contract.   A contract has to exist before it can be said to have been partly performed. Therefore, without grounds 1,2 and 4,  ground 3 is not arguable.   

Appeals are strictissima juris. A right of appeal must be exercised  in strict compliance with the statute that created it. s Legal practitioner.  Appeals to this court exit as of right only on grounds of law.  There is no right to appeal to this court  on grounds of fact or mixed law and facts except with leave of  court.     As   this court in Onifade V Olayiwola & Ors (1990) 11-12 SC held thusly-

“From the long line of decided cases, some of which have been cited by the learned counsel for the respondents as shown above, it should now be pretty clear to every appellate counsel that this court is not a court of fact in that one can only appeal on facts or mixed law and fact as of right to this court either by leave of the court or of the Court of Appeal. It should also be abundantly clear that the line of demarcation between mixed fact and law on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law.”

The notice of appeal on the grounds of facts and mixed law and facts filed on 29-8-2017 without the leave of court to appeal on  such grounds  is incompetent. The amended  notice of appeal and all appeal processes and proceedings based on it would  equally  be  incompetent and void.

Failure to obtain the leave of court to appeal on grounds of facts or mixed law facts before filing the appeal on such grounds also robs this court of the Jurisdiction to entertain and determine such appeal.  See Irhabor & Anor V. Ogaiamien (1999) LPELR – 1535 (SC).

Having held that this appeal is incompetent and that this court has no jurisdiction to entertain it, no useful purpose would be served engaging in the determination of the merits of the issues raised for determination in the respective briefs.

In the light of the foregoing, this appeal is struck out.

The appellant shall pay costs of One Million Naira to the respondent.

                                        EMMANUEL AKOMAYE AGIM                                                     

                                        JUSTICE, SUPREME COURT

COUNSEL:

Oladipo Tolani Esq. with Kabir Momoh Esq. and Yusuf Goodluck Esq. for appellant.

O. I. Habeeb Esq. with Y. Ajibola, Esq. for 1st respondent

R. O. Atabo, Esq. with Okala, Esq., O.D Oguniyi, Esq. and E. I. Ekpa, Esq. for 2nd respondent.

M. B. Hassan, Esq. for 3rd to 12th respondents.

Chris A. Umar S.G MOJ Kaduna State with Hadiza Ibrahim PSC and E. K Bakam SC for the 13th respondent