NJEMANZE v.NJEMANZE (2013)

In The Supreme Court of Nigeria

On Friday, the 1st day of February, 2013

SC.294/2005

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

CHRISIOPHER MITCHEL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria


Between

AUGUSTINE AKPALAUKWU NJEMANZE- Appellant

AND

JOHN SHIMOBI NJEMANZE-Respondent

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SULEIMAN GALADIMA, J.S.C. (Delivering the Leading Judgment): In the High Court of Imo State holden at Owerri, the Respondent was the Plaintiff. He claimed against the Appellant, then as Defendant the following reliefs:-“(a) A declaration that the Plaintiff is entitled to the grant of statutory Certificate of Occupancy of that piece or parcel of land known as and called “AKWA OSA” situate at No. 41 Erekwerenwa Street Owerri within the jurisdiction of the Honourable Court and verged Red in the Plaintiff’s Survey Plan GIK/IM021/96 filed with the Statement of Claim with an annual value of 20, (Twenty Naira).
(b) N1, 000,000.00 (One Million Naira) being general damages.
(c) INJUNCTION restraining the Defendant, his servants, agents, workers or privies from further trespass to the said land.”
After due consideration of the case presented by the parties, the learned trial judge found for the Plaintiff and held that the land in dispute is not family property.
The Defendant was dissatisfied with the Judgment of the learned trial Judge and lodged a Notice of Appeal containing three grounds of appeal in the Court of Appeal. In its reserved Judgment the Court concluded that the appeal was not meritorious and dismissed it. Hence the Appellant who was dissatisfied further appealed to this court.
Learned Counsel for the parties filed and exchanged Briefs of Argument. Learned counsel for the Appellant distilled the following 4 issues for determination:
“3.01 Whether the learned Justice of Court of Appeal (Lower Court) were right by holding that the issue of partition of the land in dispute was validly proved and considered in the Judgment of the trial Court.
3.02. Whether the Lower Court was right when it held that Exhibit B, Customary arbitration of Oha Owerri Nchi Ise was legally binding on both parties and therefore faultless.
3.03. Whether the Lower Court was right in upholding the Judgment of the trial Court in relation to the alleged customary gift of the land in dispute made by Njemanze Iheanacho to Ihejihu was legally valid and proved by the Respondent.
3.04. Whether the Lower Court was right to have held that Respondent’s case is richer in evidential value, considering the level burden placed on the Respondent in a declaratory action.”
In his brief of argument learned counsel for the Respondent has contended that he has Notice of Preliminary Objection that the grounds of appeal dated 14/07/2005 are incompetent and ought to be struck out. The reason being that the said grounds involved questions and issues of mixed law and fact; rather than the questions of law alone.
However, in the alternative, learned Counsel for the Respondent, formulated the following 4 issues for determination in this appeal as follows:
“1. Whether the Court below was right in confirming the finding and Judgment of the court of first instance that the property in dispute is not family properly?
2. Whether the Court of Appeal was right in relying on Exhibit “B” the Arbitration proceeding as binding on the parties, and in affirming the Judgment of court of first instance.
3. Whether the Court of Appeal was right in confirming the finding of the learned trial Judge that the land in dispute was a gift from Njemanze Iheanacho Ihejihu under Owerri Native Law and Custom.
4. Whether the Court of Appeal was right in affirming the decision of the Court of first instance, that the Respondent proved his case on the preponderance of evidence.”
It has been noted that the learned counsel for the Appellant replied on the Preliminary Objection raised by the Respondent in their Reply Brief dated 25/03/2006 but filed on 8/6/2006.
I shall however, summarize the submissions of the preliminary objection of the Respondent and consider later the issues and arguments on the merit of the appeal if found necessary; for the success of the preliminary objection to the hearing of the appeal; will bring the litigation to an end. However on the other hand, if the preliminary objection is dismissed the appeal will be determined on the merit.
PRELIMINARY OBJECTION
The Respondent set out the following as his grounds of preliminary objection.
Ground 1 of the preliminary objection is that Grounds (i), (ii), (iii) and (iv) together with their particulars contained in the Notice of Appeal are grounds of mixed law and fact and therefore, by S. 233 (3) of the 1999 Constitution, ought to be struck out for being incompetent. Portions of the grounds of appeal and their particulars that raise the questions of mixed law and fact have been referred to as follows:
Ground (i) – particulars (c) and (d);
Ground (ii) – particulars (b) (c) and (e);
(Ground (iii) – particulars, (b) (c) and (d).
Ground 2 of the Preliminary Objection is that all the grounds of appeal and their particulars contain argument and narrative and ought to be struck out as offending Order 8 Rule 2(3) of the Supreme Court Rules.
It is also contended by the Respondent that particulars (a) to (d) of Ground 1 of the grounds of appeal and particulars (a) and (b) of Ground 2 of the grounds of appeal are argumentative and/or narrative respectively. Furthermore that particular (d) of Ground 2 refers to the decision of the High Court, since the present appeal to the Supreme Court is against the decision of the Court of appeal and not the High Court and therefore the said particular (d) is incompetent. For particulars (a) and (c) of Ground 3 of the grounds of Appeal and particulars (a) (b) and (c) of Ground 4 of grounds of appeal the contention is that these particulars are argumentative and/or narrative and therefore incompetent as these particulars offend Order 8 Rules (3) and (4) of the Supreme Court Rules, Refers ADAH V. ADAH (2001 5 NWLR (Pt. 705) P. 1.
Ground 3 of the Preliminary Objection of the Respondent is that the 4 issues set out at pages 5 and 6 of the appellant’s brief and argued at pages 6 to 15 of the said brief were not related or tied to the grounds of appeal at pages 226 to 229 of the Record of Appeal. This Court is therefore urged to strike out these issues for determination as formulated and argued in the Appellant’s brief.
Learned Counsel for the Appellant has submitted as follows:

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On Ground 1 of the Preliminary Objection it is submitted that the objection is misconceived by the Respondent as the Appellant’s Grounds of Appeal raised only error of law and misapplications of law to facts placed before the Court of Appeal. The Appellant’s Appeal in this case is never on facts simpliciter but misapplication of law to fact. It is contended that the kernel of this appeal was that the Court of Appeal went into drawing legal conclusions to the facts.
On Ground 2 of the grounds of Appeal learned Counsel for the Appellant has argued that this ground of appeal, which is bordered on Exhibit “B” (binding on the parties having voluntarily submitted to it) is ground of law. That the simple question on that issue was the legality of Exhibit ‘B’ and this is an issue of law. It is submitted that the Appeal did not challenge the facts but the legal conclusions drawn from the said facts and consequently the appeal cannot be said to be on mixed facts and law. That the lower court did not make any finding of facts but rather confirmed the holding of the trial court. Reliance was placed on the case of NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 6 also (1987) 12 SC. 14.
On Ground 2 of the Preliminary Objection learned Counsel for the Appellant submitted that the Grounds of appeal and their particulars did not offend the provisions of Order 8 rule 2 (3) of the Supreme Court Rules. That the said Notice set out concisely and under distinct heads and grounds upon which the Appellant intended to rely at the hearing. That there was no argument or narration in the particulars and consequently this Court is urged to discountenance this ground of objection.
On Ground 3 of the Preliminary Objection, the learned counsel for the Appellant submitted that even if issues were not related to the grounds of Appeal in the brief, a second look at the grounds of appeal as contained in the Notice of appeal and the issues formulated in the brief of argument will show that, issue 1 was formulated from Ground 1, issue 2 from Ground 2 and issue 3 formulated from Ground 3 and issue 4 was formulated from Ground 4 of the appeal. It is urged on this Court, in the interest of justice to discountenance the objections of the respondent in the quest to do substantial justice and to determine the appeal on the merit.
Above is the summary of the objections and submissions of learned counsel for the parties. The success of the preliminary objection to the hearing of an appeal is a pre-emptive step which has the effect of bringing the litigation to an end. On the other hand if the objection is dismissed, the appeal will be determined on the merit. See SULEIMAN MOHAMMED & ANOR. V. LASISI SANUSI OLAWUNMI (1990) 4 SCNJ 23 at 40. In the Respondent’s brief the first Ground of Preliminary Objection to the hearing of the appeal is that the Grounds of Appeal involve questions and issues of mixed law and fact, rather than questions of law alone. The provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 require that leave of the Court of Appeal or of the Supreme Court shall be first had and obtained, before the appeal could be brought to this Court.
The grounds of appeal attacked are 1 – to 4. I produce them herein below with the particulars, as follows:
“1. The Learned Justices of the Court of appeal erred in Law in confirming the Judgment of the High Court of Imo State that the subject matter in dispute is not a family property but exclusively owned by the Respondent by the reason that there was a valid partition.
PARTICULARS OF ERROR
(a) The law is that family property remains as such until it is partitioned; once the said family property is partitioned it vests absolute ownership on the individual members.
(b) Partitioning of family property in law is quite different from allotment of property to individuals.
(c) That Ihejihu farmed on the land during farming season without more cannot, in absence of clear evidence of obvious partitioning, mean that she had exclusive ownership of the said land.
(d) The evidence of PW3 which the lower Court reproduced on page 11 of the Judgment, only with respect, amounts to evidence of traditional history of how the respondent claims he became the owner of the land in dispute but not evidence of partitioning.
(ii) The learned Justices of the Court of Appeal erred in Law on the weight it attached to Exhibit “B” the Oha Owerre Nche Ise Arbitration proceedings.
PARTICULARS OF ERROR.
(a) It is trite law that for arbitration decision to be binding on the parties, the cardinal rule of natural justice must be observed, the parties must submit voluntarily to the arbitration, there must be a decision, the award must be published, the parties must agree to be bound by the said decision.
(b) Evidence of PW2 showed that the parties testified and called witnesses, but Exhibit “B” tendered in Court contained only the observations and decision without evidence of the parties and their witnesses.
(c) The PW1 stated in his evidence that he went to the arbitration panel to answer the summons of the PW1 and that there was no decision, no publication of the said decision as none was served on him.
(d) The trial Court which heard and saw the witnesses, held in his Judgment in lines 25-30, that inter alia… “If I agree with the defendant and I certainly will, in the circumstance, I hold therefore that Exhibit ‘B’ has not met the legal requirement on customary arbitration”.
(e) That against the quoted part of the Judgment as in paragraph above, both the said trial Court and now the lower Court (Court of Appeal) relied heavily on the said Exhibit ‘B’ which has no legal effect and to which no weight is supposed to be attached in reaching their decisions.
(ii) The Learned Justices of the Court of Appeal erred in Law in holding and placing heavy reliance on the purported customary gift of the land in dispute from NJEMANZE IHEANACHO to IHEJIHU when no proof was adduced by the Respondent to the existence of such gift, its effect and the applicability of such gift in the Custom of Owerre people.
PARTICULARS OF ERROR:
(a) To constitute a valid ground under Customary Law of Owerre, the grant has to be made in the presence of witnesses.
(b) No witness was produced to testify in Court that such a grant ever was made by NJEMANZE IHEANACHO to IHEJIHU and that the said grant terminated the family ownership of the land in dispute.
(c) That IHEJIHU farmed on the land as did other wives of NJEMANZE family did not make the grant if any, to have the capacity of determining the family ownership of the land in dispute.
(iv) The learned Justices of the Court of Appeal erred in law in affirming that the Respondent’s evidence is richer in

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evidential value to entitle him the declaratory reliefs sought against the Appellant.
PARTICULARS OF ERROR
(a) It is trite Law that in a declaratory action the burden of proof rests squarely on the plaintiff. The plaintiff succeeds only on the strength of his own case and not on the weakness of the defence.
(b) It is common ground that the parties in this case are among the descendants of NJEMANZE IHEANACHO the Original owner of the land in dispute.
(c) The lower court treated with levity the evidence of the defendants most especially DW2, J. U. NJEMANZE, the eldest surviving son of NJEMANZE IHEANACHO who stated clearly that the land is a family land.
(d) The acts of possession exercised on this land by the Plaintiff were acts done in approval and interest of the entire family of ONWUEGBUCHULAM NJEMANZE since he was holding brief for the Appellant is the head of the family but a civil servant in far away Abuja.
This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted
(ii) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact is a ground of fact.
(v) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(vii) Where the lower court approached the Constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(ix) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
(x) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where 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 of law.
(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).
See the cases of BOARD OF CUSTOMS and EXCISE V. BARAU SC 48 and OGBECHIE V. ONOCHIE (1986) 3 SC 58 – 64, where this Court interpreted the provisions of Section 213 (3) and 214 (3) of the Constitution of the Federal Republic of Nigeria, in pari materia with the instant provisions of Section 233(3) and 232 (2) (a) of the said Constitution.
Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows:
(i) OJEMEN V. MOMODU (1983) 3 SC 173 at 207.
(ii) RABIU.V. ATTORNEY GENERAL KANO STATE (1980) 8 – 11 SC also (1982) 2 NCLR 117.
(iii) NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67).
(iv) ABIDOBA V. ALAWODE (2001) 6 NWLR (Pt. 709) 463 at 472.
(v) IFEDIORA V. UMEH (1988) 2 NWLR (pt. 74) 5.
(vi) OFORKIRE v. MADUIKE (2003) 5 NWLR (pt. 812) 166 at 176.
(vii) IDOWU V. STATE (2000) 12 NWLR (pt. 680) 48 at 68 – 69.

It has been further decided by this Court that in determining whether a ground of appeal includes questions of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A. V. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390.
I have placed the grounds of appeal challenged by the Respondent side by side, and applying the principles stated elaborately above and as decided in those cases, the inevitable conclusion I have reached is that Grounds (i), (ii), (iii) and (iv) of the grounds of appeal, together with their particulars set out at pages 226 to 229 of the Record contained in the Notice of Appeal are grounds of mixed law and fact and of fact. These grounds are caught by section 233(3) of the 1999 Constitution. I shall explain and give reasons for this conclusion by referring to the portions of the grounds of appeal and their particulars that raise questions of mixed law and fact as follows:
Ground (i) of the ground of appeal together with particulars (c) and (d) are grounds and particular that questions the evaluation and assessment of facts by the Court of Appeal, or at least mixed law and fact. Ground (ii) of the ground of

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appeal is pure fact, together with its particulars (b), (c), (e) that question -the evaluation and assessment of facts by the Court of appeal and also weight to be attached to Exhibit ‘B’. Grounds (iii) of the grounds of appeal is of fact, or at least mixed law and fact together with particulars (b) and (c) that question evaluation and assessment of facts by the court below and the attachment of weight by that court.
In view of the foregoing this Court is not seized with the requisite jurisdiction to entertain and adjudicate on this Appeal, leave not having been obtained from the Court of Appeal or of this Court under the said Section 233 (3) of the 1999 Constitution, before the appeal was brought. The requirement of leave under this Section is mandatory: See AKINYEMI V. ODUA INVESTMENT CO. LTD. (2012) 1 SC (Pt. iv) 4. These grounds are incompetent grounds, and are hereby struck out. Any issue covering these grounds and arguments are liable to be discountenanced: See IDIKA V. ERISI (1982) 5 SC (Reprint) 323, (1988) 2 NWLR (Pt.78) 563 and TILBURY CONSTURICTION LTD. V. OGUNNIYI (1988) 3 SC (Reprint) 323: (1988) 2 NWLR (Pt 78) 563.
Furthermore, in Ground 1 of the grounds of appeal, particulars (a) to (d) are argumentative and narrative and this offends order 8 Rule 2 (4) of the Supreme Court Rules.
In Ground 2 of the grounds of appeal particulars (a) is argumentative and/or narrative. Particular (d) which refers to the decision of the trial High Court is incompetent. The present appeal is against the decision of the Court of Appeal, and not the High Court. It is therefore vague and discloses no reasonable grounds and particulars. In the same vein, particular (c) is argumentative and/or narrative. In Grounds 3 and 4 of the grounds of appeal, particulars (a) and (c) and particulars (a), (b) and (c) respectively are argumentative and narrative. For this reason the above particulars are hereby struck out.
In the light of the foregoing I am of the humble view that the preliminary objection on grounds 1 – 4 of the grounds of appeal is well taken. It is sustained, and consequently the Grounds which are grounds of mixed law and facts are incompetent, having been raised without leave of Court as required by S. 233 (3) of the 1999 Constitution (as Amended).The said grounds are, accordingly, struck out, and consequently, the appeal is struck out as well. I make no order as to costs.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother, GALADIMA JSC just delivered.
I agree with his reasoning and conclusion that the preliminary objection to the grounds of appeal is meritorious and should be upheld.
The claim before the trial court is for:-
“i. A declaration that the plaintiff is entitled to the grant of statutory certificate of occupancy in respect of that piece or parcel of land known as and called “Akwa Osa” situate at No. 41 Erkwerenwe, Street Owerri within the jurisdiction of the Honourable Court and verged red in the plaintiffs survey plan no. GIK/1M02/96 filed with the statement of claim with an annual value of N20.00 (twenty naira).
ii. N1, 000,000.00 (One Million Naira) being general damages for trespass.
iii. Injunction restraining the defendant, his servants, agents, workers or privies howsoever from further trespassing to the said land”.
Both parties traced their origin of title to one NJEMANZE IHENACHO but while the respondent, as plaintiff, claimed that the land was personal, appellant, as defendant, insisted that it was family property. The trial judge accepted the traditional history of the plaintiff as against that of the defendant and consequently held that the land in dispute belongs to the plaintiff and that it is not family property as claimed by the defendant and that the claim for trespass by the defendant has been established by the plaintiff. The court therefore held that the plaintiff established a better title to the land in dispute.
The defendant/appellant was not satisfied with the judgment and consequently appealed to the Court of Appeal in appeal no. CA/PH/352/2001 which court dismissed the appeal for lacking in merit in a judgment delivered on 28th April, 2005. The lower court therefore affirmed the decision of the trial court resulting in the instant appeal, the issues for the determination of which have been identified by learned counsel for appellant, G. O. NWOKEOGU ESQ in the appellant brief filed on 16th February, 2006 as follows:-
“3.01 Whether the learned Justices of Court of Appeal (lower court) were right by holding that the issue of partition of the land in dispute was validly proved and considered in the judgment of the trial court.
3.02 Whether the lower court was right when it held that Exhibit B, customary arbitration of Oha Owerri Nchi Ise was legally binding on both parties and therefore faultless.
3.03 Whether the lower court was right in upholding the judgment of the trial court in relation to the alleged customary gift of the land in dispute made by Njemanze Ihenacho to Ihejihu was legally valid and proved by the respondent.
3.04 Whether the lower court was right to have held that respondent’s case is richer in evidential value, considering the level burden placed on the respondent in a declaratory action.”
My learned brother, GALADIMA J.S.C has reproduced the grounds of appeal and the grounds of objection thereto in the lead judgment making it unnecessary for me to do so in this judgment. However, the primary fundamental ground of objection is that the grounds of appeal and the particulars thereof being grounds of facts and mixed law and facts, appellant needed the leave of either the Court of Appeal or of this Court to Appeal against the judgment of the lower court in the circumstances and that since appellant did not seek or obtain the said leave, the appeal is not competent and is liable to be struck out and urged the court to so order.
On the other hand, learned counsel for appellant contends that the grounds of appeal are of law simpliciter for which no leave of the courts is required as such appeals are as of right. My learned brother has reproduced the principle that guide appellate courts in determining whether an appeal is of right or with leave of court or the grounds of appeal is/are of law or facts or mixed law and facts and I do not therefore intend to repeat them here.
It should, however, be noted that appellant admits that he did not obtain the leave of either the lower court or of this court before appealing against the judgment of the lower court in the instant appeal. I had earlier reproduced the reliefs claimed in this case and the issues formulated for the determination of this appeal. It should also be remembered that the

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action giving rise to this appeal is for inter alia declaration of title to land in which, usually, the facts relevant to tracing the claimant’s title must be pleaded and evidence produced at the trial to establish same. In short, you cannot establish a title to land without evidence which is a question of facts. Usually there are two versions of facts aimed at establishing opposing claim of title to the same land professed by the opposing parties. The trial court is therefore in the circumstance to apply the relevant principles of law to the facts in determining which of the versions is probable and acceptable by it and assigning reasons for so deciding.
In the instant case, the trial judge accepted the version presented by the respondent and entered judgment for him which judgment was affirmed by the lower court. All that I am trying to say is that having lost in the lower courts in a case of this nature you cannot have a successful further appeal arising from that case which does not attack the facts or mixed law and facts and for which leave is needed. There may be exceptions but that exception must accept the facts of the case as admitted, which is not the case in the instant appeal looking at the grounds of appeal and particulars thereof and the issues arising therefrom as formulated by learned counsel for appellant supra.
Though generally it is accepted that it is always difficult to distinguish a ground of law from a ground of mixed law and fact or fact simpliciter, when a ground(s) of appeal in a case is/are examined thoroughly and it/they reveal a misunderstanding by the lower court/tribunal of the law, or misapplication of the law to the facts already proved or admitted the ground is one of law.
On the other hand, where the grounds are such that reveal or question the evaluation of facts by the lower court/tribunal before application of the law that would amount to question of mixed law and fact.
It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother that I too uphold the primary objection to strike out the appeal for being incompetent:
I abide by the consequential orders made in the said lead judgment including the order as to costs.
Appeal struck out.

C. M. CHUKWUMA-ENEH, J.S.C.: This appeal has for the umpteenth time brought to the fore the importance of constantly just watching it in raising grounds of appeal vis-a-vis the provisions with regard to section 233(3) of the 1999 constitution as amended requiring that leave of court must have been firstly sought and obtained before an appeal to this court could be properly constituted on the grounds of facts or mixed law and facts. It also has highlighted the cumbersome business of having to distinguish between questions of law from questions of facts and mixed law and facts in the process of raising grounds of appeal to this court.
The respondent has rightly taken a preliminary objection to all the four grounds of appeal raised before this court in this appeal. If I may admonish, it is always better to walk on the path of caution to seek and obtain leave of court before filing a set of grounds of appeal. I agree that all the grounds of appeal (1 to 4 as contained in instant Notice of Appeal have raised at best grounds of mixed law and facts and therefore require leave of court (i.e. the court below or this court) as provided under Section 233(3) (supra). I have examined the four substantive grounds of appeal against their particulars of error as contained in the Notice of Appeal. And I agree accordingly that they, each of them, are not competent grounds of appeal and are liable to be struck out and I strike them out. It follows that the instant Notice of Appeal in this Appeal not having a competent ground of appeal in law to sustain it is also incompetent, as there must be at least a ground of law to sustain the Notice of Appeal to this court. And so the instant purported Notice of Appeal must also be struck out. Meaning that there is no competent Appeal in this court in this matter.
I therefore agree with the lead judgment of my learned brother Galadima JSC that the appeal should be struck out accordingly. And I strike out the Appeal and I abide by all the orders contained therein.

MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother Galadima JSC had obliged me a preview of his lead judgment and I entire agree with his reasonings and conclusion that this appeal is incompetent. My few words here under are purely for the sake of emphasis.
I rely on the facts which brought about the appeal recounted in the lead judgment making it unnecessary to restate them here.
Learned counsel for the respondent has argued in their brief, on the basis of the Notice of preliminary objection earlier filed that all the grounds contained in the appellant’s notice of appeal are incompetent. All the grounds in the notice, learned counsel contends, involve either questions of fact alone or mixed fact and law. None of the grounds raises question of law alone. Having not sought and obtained leave of this court in respect of the grounds as required by S.233(2) of the 1999 constitution, learned counsel submits, all the grounds are incompetent. I cannot agree more with learned counsel. See Adeleke Vs Asani (2002) 8 NWLR (Pt 768) 26 and CBN Vs Okojie (2002) 8 NWLR (Pt 768) 48.
I adopt the thorough examination of the grounds by my learned brother and his conclusion therefrom as mine in striking out all the incompetent grounds as well as the appeal. I abide by the consequential orders made in the lead judgment including the order on cost.

CLARA BATA OGUNBIYI, J.S.C.: the appeal herein is against the judgment of the Court of Appeal Port Harcourt Division delivered on 28th April, 2005. The respondent was the plaintiff before the High Court of Imo State holden at Owerri wherein he claimed against the defendant now appellant certain declarative and injunctive reliefs. The learned trial judge in a reserved judgment found for the plaintiff having established a better title to the land in dispute as against the defendant.
The defendant/appellant was dissatisfied with the judgment and therefore lodged a notice of appeal to the Court of Appeal containing three original grounds of appeal. The appeal was heard by the lower court who also in a reserved judgment unanimously found the appeal unmeritorious and dismissed same.
The appellant was also dissatisfied with the judgment of the lower court and on the 14th July 2005, lodged a further
appeal in this court against the decision of the lower court. Four issues were raised for determination from the grounds of appeal filed as follows:-
Whether the learned justices of the Court of Appeal were right by holding that the issue of partition of the land in dispute was validly proved and considered in the judgment of the trial court.
2. Whether the lower court was right when it held that Exhibit B, customary arbitration of Oha Owerri Nchi Ise was legally binding on both parties and therefore faultless.
3. Whether the lower court was right in upholding the judgment of the trial court in relation to the alleged customary gift of the land in dispute made by Njemanze Iheanacho to Ihejihu was legally valid and proved by the Respondent.
4. Whether Lower Court was right to have held that Respondent’s case is richer in evidential value, considering the level burden placed on the Respondent in a declaratory action.”
On behalf of the respondent, four issues were also formulated. There was also a notice of preliminary objection filed by the respondent predicating three grounds. One of the objections questions the competence of grounds 1, 2, 3 and 4 which counsel noted raised issues of facts, or at best issues of mixed law and facts. It is the counsel’s submission that the appellant ought to have first sought and obtained the leave of either the lower court or this court before filing the grounds of appeal. Counsel related copiously to section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999; that the absence of such leave had rendered the grounds incompetent.
The provision of section 233(2) of the Constitution, has clearly outlined the situational circumstances wherein appeal shall lie from the decisions of the Court of Appeal to this Court as of right. Specifically, subsection (3) of the said section is however applicable to the objection and states thus:-
“(3) Subject to the Provisions of subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
On the authority of the case of Oforkwe V. Maduike (2003) 5 NWLR (Pt. 812) 166 this court held the view that the consequence of failure to obtain leave in an appeal of this nature will render the grounds incompetent and liable to be struck out. The same opinion was earlier held by this court in the case of Oluwole V. L.S.D.P.C (1983) 5 SC 1 at pages 2 and 3 wherein the purported ground of appeal was struck out for want of leave as required by section 213(3) of the 1979 Constitution which is in pari materia with section 233 (3) of the 1999 Constitution.
The four grounds of appeal and their particulars have been reproduced in the lead judgment. On a thorough examination of the grounds in the light of the decided authorities wherein principles are laid down for the determination of whether a ground is of law, fact or mixed law and fact, the subterranean conclusion is the view held by the respondent’s counsel. In otherwords that the grounds of appeal by nature are not of right as provided under section 233(2) of the Constitution. It is mandatory that leave of either the lower court or this court ought to have first been sought and obtained. The grounds from their particulars are not questions of law alone but of mixed law and fact and also of fact.
This Court is therefore bereft of jurisdiction to entertain the purported grounds of appeal for incompetence.
The law is well settled that no competent issue can arise from an incompetent ground of appeal.
My learned brother S. Galadima, JSC has adequately dealt with the appeal and I am in complete agreement with the fuller and comprehensive reasoning arrived thereat. I also adopt the judgment as mine and abide by all consequential orders made therein.

Appearances

N. A. NNAWUCHI (SAN) with L.M. Alozie Esq. S.C. Imo Esq. and M. E. Ibekwe. For Appellant

AND

AHAM EKE EJALAM ESQ. with A. G. Dominic Kalio Esq. For Respondent.

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