ABBA & ANOR v. AUDU (2014)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of June, 2017


Before Their Lordships

ADZIRA GANA MSHELIA  Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM  Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU  Justice of The Court of Appeal of Nigeria


2. VASTI IBRAHIM-Appellants


HELEN AUDU-Respondent


ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Ruling of the High Court of Bauchi State, Bauchi, delivered on February 14th 2014 by Hon. Justice M. A. Sambo, pursuant to the Appellants’ application for amendment of their Statement of Defence. The Court refused the Appellants’ application on the ground that it was overreaching and same was dismissed.
The gist of the facts constituting the instant appeal as contained in the printed Record before this Court is as follows:
The Respondent (the Plaintiff at the Court below) filed a suit against the Appellants (the Defendants at the Court below) in the main, to revoke, set aside and nullify the letter of administration granted to the Appellants in respect of the estate of one late Thomas Ali (Alias Lolo) as his first and surviving wife of a Christian marriage, and the mother of the deceased’s three (3) children. That, the Appellants, sisters of the deceased were not competent or entitled by any native law and custom to be granted letters of administration of the deceased’s estate. The Appellants filed their defence thereto and trial commenced in the matter. It was during the trial specifically during the cross-examination of the pw2 that the Appellants’ Counsel brought the said application dated and filed on July 4th 2013, to amend the Appellant’s Statement of Defence. Upon the refusal by the Court to grant the said application, the Appellants have approached this Court on appeal.
The Appellants’ Notice of Appeal dated February 20th, 2014 contains two grounds of appeal.
1. An order setting aside the ruling of the Bauchi State High Court No. 6, Bauchi presided over by Hon. Justice M. A. Sambo delivered on the 14th day of February, 2014 refusing to grant the amendment of the Appellants (sic) statement of defence.
2. An order granting the amendment of the Appellants (sic) statement of defence in terms of the proposed amended statement of defence attached to the motion on notice dated 4th July, 2013 and filed on the same day, marked as Exhibit ‘MATI” and remitting the case back to the Bauchi State High Court to proceed to trial in terms of the Appellants (sic) amended statement of defence.

Parties in accordance with the 2016 Rules of this Court exchanged their briefs of argument. The Appellants’ brief of argument settled by M. A. Tsuwa Esq., dated November 21st 2016, was filed on November 22nd 2015 and was deemed as properly filed on February 2nd 2017. In response, the Respondent’s brief which was settled by B. V. Dalbadal Esq., was dated March 8th 2017 and filed on March 10th 2017. The Appellants’ Reply brief dated March 17th 2017 was filed on March 20th 2017. The Respondent incorporated a Notice of Preliminary Objection in her brief of argument. I shall proceed to consider the said objection as it must be dealt with first since it may or may not terminate the appeal and also for economy of time and resources, where the objection succeeds.
The Respondent prayed
This Honourable Court to strike out this entire appeal as one that is incompetent and that the Notice of Appeal dated 20th February, 2014, filed on the 20th February, 2014 without leave of Court by its Grounds One and Two where challenging the refusal of the lower Court to grant them amendment to their statement of defence.”

The ground of the objection is that the two grounds were premised on grounds of law and fact and no leave was sought for or obtained before filing. And that failure to obtain leave to file an interlocutory appeal such as the instant renders the entire appeal incompetent and liable to be struck out.
Mr. Dalbadal, the learned Respondent’s Counsel argued that, grounds 1 and 2 of this appeal are of mixed law and fact. That, they are clearly specific and directed at challenging the trial judge’s power for refusing to amend the Appellants’ statement of defence and that, there was no previous application to constitute Estoppel. He cited in support, the cases of GARUBA V. OMOKHODION (2010) 15 NWLR (PT. 1269) 145 and AUGUSTINE V. HORGAN(2008) 16 NWLR (PT. 1112) P.95. The learned Counsel argued further that, ground 1 of the Appellants’ Notice of Appeal is abandoned as no issue was distilled therefrom and cited the cases of OKELUE V. MEDUKAM (2011) 2 NWLR (PT. 1230) P. 176 and L.M.P. IND. LTD. V. U.H.S.I LTD. (2011) 7 NWLR 1247 P.519. He concluded by urging that the interlocutory appeal be declared incompetent.
Mr. M. A. Tsuwa, learned Counsel for the


Appellants submitted that, the decision that gave rise to the instant appeal was a final one by the Court and therefore, in the face of Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria, the appeal against the said decision is as of right and did not require the leave of the Court. In support, he cited the cases ofMTN NIG. COMMUNICATIONS LTD. V. SADIKU (2014) NWLR (PT. 1435) P. 382, CHUKWU V. I.N.E.C. (2014) ALL FWLR (PT. 741) 1531 and OYEWINLE V. IRAGBIJI (2014) ALL FWLR (PT. 731) P. 1536. He maintained that the Ruling was a final decision from an application that finally disposed of the rights of the parties as far as the application to amend was concerned. That, the only remedy left was for the Appellants to go on appeal. It was therefore, final and not interlocutory. Further, he contended that, both grounds are of law, therefore, there was no need to seek the leave of the Court and cited the cases of SKYMIT MOTORS LTD. V. UBA PLC (2014) ALL FWLR (PT. 721) 1547 and K.T.P. LTD. V. GLOEDE 7 HOFF NIG. LTD. (2005) ALL FWLR (PT. 277) 254. He urged that the Respondent’s preliminary objection be dismissed as lacking merit.
It is basic Constitutional principle that, where the grounds of appeal are of mixed law and facts or facts alone, it becomes imperative that leave of the Court must first be sought and obtained. Leave is consequently a condition precedent to an appeal on grounds other than law where the decision is not final. Failure to seek and obtain leave where it is required robs the Court of its jurisdiction on the particular matter. See the cases of AQUA LTD. V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622, RABIU V. THE STATE (1981) 2 NCLR 293, TOTAL INT. LTD. V. AWOGBORO (1994) 4 NWLR (PT. 337) 147, ABUBAKAR V. WAZIRI (2008) ALL FWLR (PT. 436) 2025, METAL CONSTRUCTION W.A. LTD. V. MIGLIORE (1990) 1 NWLR (PT. 126) 299, OLUWOLE V. LSDC (1983) 5 SC 1, FALEYE V. OTAPO (1987) 4 NWLR (PT. 54) 186 and O AND O PLC. & ORS V. ADEWUYI & ORS (2013) LPELR CA/I/61/2009.
The 1999 Constitution of the Federal Republic of Nigeria as amended in Section 241(1) (a) thereof states thus:
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.

Both Counsel in their submissions have correctly stated the position of the law. The question that follows therefore at this stage is, whether or not the Ruling of the Court that is being appealed against, is a final decision. The Respondent’s Counsel submitted that the ruling of the Court was not final when on the other hand the Appellants’ Counsel argued that, it was a final decision of the Court. What then is a final decision, when is a decision said to be final?
Final decision in Subsection (1) (a) of Section 241 of the 1999 Constitution has been interpreted to mean, a decision completely determining the rights of the parties before the Court. The apex Court in OMONUWA V. OSHODIN (1985) 2 NWLR (PT. 10) 294 SC defined it thus per Karibi-Whyte JSC as he then was:
“A decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties and not merely an issue in the case. Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties is interlocutory.”
From the Record before this Court, it was the Appellant’s application dated and filed July 4th, 2013 for leave to amend their Statement of Defence on page 23 of the Record that brought about the Ruling by the Court on February 14th, 2014. Further, as a result of the said Ruling, the Appellants being dissatisfied with the dismissal of their application have come before this Court in the exercise of their constitutional right, whilst, the trial at the Court below remains uncompleted.
The genesis of the whole matter was that on October 4th 2012, at the hearing, during the cross-examination of PM2, one Rev. Haruna Mbidur of COCIN Church, the Respondent’s Counsel sought to tender as Exhibit the COCIN Church Constitution and the Appellants’ Counsel objected. The Court, after the submissions from Counsel on both sides, delivered its ruling on October 16th, 2012, admitted the said COCIN Church Constitution as Exhibit A1 and adjournerd to November 6th, 2012. See pages 15 – 22 of the Second. On the said adjourned date,


during the cross-examination of PW2 by the Appellants’ Counsel on the relationship between the COCIN Constitution, Exhibit A1, and the Bible, the Court adjourned for addresses by Counsel on the propriety or otherwise of that line of questioning to December 14th, 2012. Following the Counsel’s addresses on the issue, the Court delivered its ruling on February 15th, 2013, to the effect that, pW2 could not be cross-examined on a Bible which was not pleaded either by the Appellants or the Respondent. Subsequently, the Appellants application filed on March 26th, 2013, for time to appeal against the ruling of February 15th 2013, was heard and dismissed on November 12th 2013. The reason was that the Court below lacked jurisdiction as the application should properly have been filed at the Court of Appeal. Subsequent to the Ruling on 15/2/2013, which disallowed the Appellants’ Counsel from cross-examining PW2 on a Bible that was not pleaded, the Appellants filed the said application for amendment of their Statement of Defence. The refusal and dismissal of the application on February 14th 2014 caused the filing of this appeal. See pages 1-28 of the Supplementary Record and pages 41-48 of the main Record.
One then wonders and most sincerely, how the Ruling of February of 14th, 2014, could be a final decision of the Court below, given the clear unsettled issues between the parties. In my view and humbly, the application to amend by the Appellants even showed that pleadings and issues were yet to be crystallized between the parties at least from the position of the Appellants. Therefore, in my considered opinion, the said Court’s ruling of February 14th 2014 could not be and was not a final decision of the Court between the parties as contemplated by the Section 241(1) (a) of the 1999 Constitution as amended.
In consequence, one finds that the instant appeal is an interlocutory appeal. If that be the case, the next pertinent question will be whether or not the two grounds of this appeal are of law alone in which case, there will be absolutely no need for leave according to Section 241(1) of the 1999 Constitution.
I shall hereunder reproduce the two grounds of appeal for ease of reference and clarity as follows:
The learned trial judge erred in law when he refused to grant 
the Appellants (sic) application for amendment of their statement of defence on the grounds that the application is not made in good faith and is made to overreach the Respondent and this error occasioned a miscarriage of justice.
a. The Respondent filed this case against the Appellants on 28th of September, 2010 before the Bauchi State High Court.
b. The Appellants filed their defence on 26th of October 2010.
c. PW2 opened testimony on 4th October, 2012 and concluded on 6th day of November, 2012 and thereafter Appellant’s Counsel opened cross-examination.
d. In the course of cross-examination Appellant’s counsel sought to cross-examine PW2 on a portion of the Holy Bible following the testimony of the witness that the Constitution of COCIN Church is derived from the bible and in Christian marriage divorce is not allowed, Respondent’s counsel objected to the question and Appellant’s counsel was overruled on the grounds that the Holy Bible was not pleaded.
e. Thereafter Appellants counsel filed the application giving rise to this appeal and sought to amend their statement of defence and plead the portions of the 
Holy Bible he was earlier barred from cross-examining upon hence the ruling giving rise to this appeal wherein the trial Court erroneously refused the application.
The learned trial judge erred in law when he held that, the Appellants (sic) application to amend their statement of defence is caught up by the doctrine of issue estoppel and this error occasioned a gross miscarriage of justice.
a. Issue estoppel operates where the parties in the previous proceedings are the same, the issues are the same, the issues are material to the cause of action in the previous and latter case and the issue has been resolved in the previous decisions. See the case of BWACHA V. IKENYA 2011 ALL FWLR PT.572 1674 at 1693-1694, Paras H-D
b. In the instant case, the issue of the amendment of the Defendants/Appellants statement of defence had never been previously made to the Court; therefore issue estoppel could not have applied to preclude the Appellants from making their application, the trial Court was therefore wrong to have relied on issue estoppel to refuse to allow the amendment sought.
Given the above stated grounds, can they be said to be of law alone or as argued by the Respondent’s Counsel of mixed law and fact?


The process of distinguishing and bringing out the thin line between questions of law and that of fact as espoused and explained by the apex Court is very instructive in the case of METAL CONSTRUCTION W.A. LTD. V. D. A. MIGLIORE & ORS (1990) LPELR-SC 251/1985. As said in support of the existence of a thin dividing line between questions of law and that of facts, Nnaemeka-Agu JSC, as he then was stated thus in the case of NWADIKE V. IBEKWE (1987) NWLR (PT. 57) 718.
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 ground of law by christening it “error of law” or “misdirection in law.”
The apex Court described what can be regarded as a question of law as opposed to a question of fact and most instructively, explained what is meant by judicial discretion and how it is categorised. That, a question of judicial discretion pertains to the sphere of what is right, equitable, just or reasonable so far as is not predetermined by authoritative rules of law but committed to the liberum arbitriumof the Courts. This is as opposed to that of fact strictu sensu. It is a question as to what ought to be as opposed to a question of what it is. Matters of judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the Court. It is nevertheless a question of fact with the exercise of discretion being an exercise of moral judgment, an expression of opinion on the facts admitted and therefore, different from the facts simpliciter. As regards question of facts, it is any matter to be determined on evidence and inference therefrom, is a matter of fact. An appeal on a point of law involves a question the Court is bound to answer in accordance with a rule of law. It excludes the exercise of discretion in answering the question. It is also the question as to what is the law therein, that is, what is the true rule of law. See the cases of METAL  CONSTRUCTION  LTD. supra and OGBECHIE V. ONOCHIE (1986) 2 NWLR (PT. 23) 484.
From the foregoing, it my considered view and humbly, that both grounds of appeal filed by the Appellants involve questions of mixed law and fact. There was therefore, need for the leave of the Court before filing. It is trite law that, where an appeal is to be with leave of the Court but none was obtained, the condition precedent for the validity of such an appeal has not been fulfilled and as a result, the appeal is in law, said to be incompetent as the instant. This Court for that reason lacks the jurisdiction to entertain it. See the cases of METAL CONSTRUCTION W.A. LTD. supra, OLUWOLE V. LSDPC (1983) 5 SC 1, FALEYE V. OTAPO (1987) 4 NWLR (PT 64) 186 SAMSON DANIEL UKPONG V. COM. FOR FINANCE & ECON DEV. & ANOR. (2006) LPELR-SC 126/2000 and NWOSU V. OFFOR (1997) 2 NWLR (PT. 487) 274.

In the result, the Respondent’s objection herein succeeds. It is accordingly sustained and the Appellant’s appeal is hereby struck out for incompetence.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the lead Ruling of my learned brother Williams-Dawodu JCA, just delivered. I entirely agree with the reasoning and conclusion that the Respondent’s preliminary objection has merit and same is sustained. I also order that Appeal be struck out for being incompetent.
UCHECHUKWU ONYEMENAM, J.C.A.: I had a preview of the judgment just delivered by my learned brother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA. I agree with his conclusion that this Court lacks jurisdiction to entertain the appeal.
The objection of the Respondent is sustained. I therefore strike out the appeal for being incompetent.

Mr. M. A. Tsuwa-For Appellants


Dalbadal, Esq.-For Respondent.

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