The appellant has complained of not having been arraigned before appropriate standing Committees of the Central Bank of Nigeria by the bank i.e. 1st respondent but before adhoc committees that have been constituted by a bizarre procedure contrived by the 2nd respondent against which the appellant has complained as a clear usurpation and abuse of power of the 1st respondent and should never have been held as “proper” by the two lower courts. The appellant has put the respondents to the burden of failing to identify one by one how the said sixteen grounds attacked in these respects are of mixed law and facts or facts simplicita and that in consequence of failing to do so as the onus is by law placed on the respondents, would without more, he has urged, result in overruling the preliminary objection and upholding the said grounds as competent grounds in law. See: Briggs v. Chief Land Officer (supra) & Ogbechie v. Onochie (supra). The foregoing submission if I may interject here has showed a fundamental flaw of misconception of the appellant’s case in this appeal. The onus is clearly on him to show that the said grounds are of law in order to ignite the jurisdiction of this court. See Section 233(3) (supra).
Finally, the court is urged to dismiss the objection with costs as lacking in merit and to hear the appeal on the merits.
The appellant by a strange twist in his submission has urged in the alternative that the court should stay proceedings and give directives as will best meet the justice of the case where it is found that all or any of these grounds are of fact or mixed law and fact and has to that effect urged the court to seriously consider following the approach in Lawson Jackson v. Shell Petroleum Development Co. Ltd. (2002) 7 SC (Pt.11) 112 at 120 – 121 as supported by Order 10 Rule 1(l) of the Rules of the court. And that this has to be so in view of the fact that an appeal with leave is a matter that comes within order 6 Rule 2(1) of the Rules of court. From the forgoing temporary aberrations, there can be doubt that the appellant with respect having departed from concentrating on the nature of his case and the applicable law has gone too casual over the serious discussion of the competency of his grounds of appeal vis-a-vis the provisions of Section 233(3) (supra) and has totally derailed in submitting that the law governing leave to appeal is a matter under Order 6 Rule 2(1). I think that the appellant in the exercise of rambling about in presenting his case in the appeal has thus committed unpardonable error in law in so submitting. I can find no connection between the purport of the provisions of order 6 Rule 2(1) of the Rules of this court and questions raised as to the competency of the said sixteen grounds under Section 233(3) (Supra).
The instant objection as canvassed by the parties herein (in their respective briefs of argument and oral submissions before this court strikes at the heart of this appeal. It simply means that where the objection is sustained it will leave only ground 7 in the Amended Notice of Appeal as the only competent ground in law to sustain the appeal as the rest of the grounds as urged by the respondents being ex facie bad and incompetent in law have to be struck out as well as the issues for determination erected thereupon. Although it is trite that a single ground of law is sufficient to sustain a Notice of Appeal in an appeal; also, see: Niger Construction Ltd. v. Okugbeni (1987) 2 NSCC (Vol. 18) 1258 per Nnaemeka Agu JSC. I think that in the sense of the instant preliminary objection it is vital and appropriate in this regard to set out the seventeen grounds of appeal as I have clone above with their prolix particulars of errors in law, even then for ease of reference and more so as the substantive ground of every ground of appeal has to be read and considered conjointly with their respective particulars of error to ascertain the real issue or complaint as encompassed in the said ground. In this regard the court is not to place undue reliance or emphasis on the form or in the manner the ground is couched as the gravamen or form of a ground of appeal for purposes of determining whether a ground is a ground of law or mixed law and facts or facts alone goes beyond the mere words used in couching or preferring the ground to the more serious question of identifying the real issue or the core of the complaint as encompassed in the ground. Clearly It is the real issue or complaint centrally encompassed in a ground on the backdrop of its particulars that decides whether the ground is one of law or not. Where, in short, the ground raises a complaint on an issue of law based upon accepted or admitted facts it is a ground of law requiring no leave of court but where the complaint or real issue is founded on disputed or unascertained facts then it is a ground of mixed law and fact requiring leave of court. See Section 233(3) (supra), and N.N.S. Co. Ltd. vs. Establishment Sima of Vaduz (1990) 7 NWLR (Pt.164) 526. The process of determining the substantive complaint of a ground as in this appeal has been accentuated by the fact, as can be seen from established authorities that the distinction between a ground of law and mixed law and fact may at times be so blurred or thin and so, difficult to ascertain with relative application of the established guiding principles as per settled authorities on the question. lt is a matter that goes beyond a ground of appeal being simply labeled without more as a ground of law by the appellant. A hard scrutiny of the case as per Ehinlanwo v. Oke & Ors. (2008) 6 – 7 SC (Pt.1) 123 has established that a ground of law arises where the court has misunderstood the law or has misapplied the law to the proved and admitted facts. Against the backdrop of the foregoing guidelines I now go on to examine the outstanding eleven grounds of appeal in this matter and in that regard I adopt the three categorization of these grounds of appeal as in the manner the appellant has attempted to tackle them in his brief of argument that is to say as I have adumbrated above:
(A).Ground 1. The complaint in this regard is that the judgment of the court below amongst other reasons is perverse; being perverse necessarily will involve examining facts and evidence ignored by the court or that the court has taken into account irrelevant matters and has based its decision thereon or has misconceived the thrust of the case of the appellant and as borne out by the particulars of the ground. In the instant ground the particulars have clearly raised the question of improper appraisal or evaluation or assessment of the facts in the pleadings and evidence. See: Udengwu v. Uzuegbu & Ors. (2003) 110 L.R.C.N. 1702. Having thus raised an issue of mixed law and fact it is therefore incompetent for not having firstly sought and obtained leave of court. See section 233(3) of the 1999 Constitution as amended, and Nwadike & Ors. v. lbekwe & Ors. (1987) 11-12 SCNJ 72 at 98 – 99; (1987) 4 NWLR 718.
(B) As regards Grounds 4, 6, 11, 12, 13, 14, 15 and 17 lumped together and argued by appellant to which with respect I add grounds 5 and 16 apparently for no reason left out of this class. There is a thread of complaint traversing all these grounds as alleged by the appellant and they, each of them, have again showed on the aggregate a failure to apply the law to the unproved and unascertained facts in the pleadings and evidence on the record vis-a-vis Order 12 Rule 3 of the Federal High court Civil Procedure Rules 2000 and section 137 0f the Evidence Act. These grounds have unequivocally raised questions of appraisal or evaluation of the facts and evidence before the trial court as affirmed by the court below. There can be no doubt therefore, that the single complaint running through these grounds has raised a question of mixed law and fact and so these grounds have required leave of court to be competent. In other words, these grounds are incompetent for want of leave of court as prescribed by Section 233(3) (supra). See: Arowolo v. Ademula (1991) 8 NWLR (Pt. 212) 753 at 764 and Nwadike v. lbekwe & Ors” (supra).
(C) Grounds 8, 9 and 10: simply put the appellant has raised these grounds alleging that by not having been arraigned before the appropriate Central Disciplinary Committees of the Bank by the Bank itself (i.e. the respondent) but before illegal Committees (not the appropriate Standing Disciplinary Committees) of any consequence set up by the machinations of the 2nd respondent in his pursuit to force out the appellant from his employment, the appellant has been denied a fair hearing by default and that the court below has even gone ahead to make the case for the 2nd respondent to justify the same and so that Exhibits E, F, G, L, L1, & J not having come from proper authority the case built thereupon on the facts both oral and documentary has not been decided on the proper evidence before the court. The court is urged to scrutinize the facts and evidence all over again. He relies on Garba v. Unimaid (supra) a case he has misconstrued, with respect, as applying to the facts of this case. It is my view that he has thus raised questions of facts requiring appraisal and evaluation on the record before the court below to find out whether there has been in fact such a denial and so, the grounds do not contravene Section 36(1) of the 1999 Constitution in relation to the appellant; consequently making it incumbent on the appellant to seek leave of court under Section 233(3) (supra). Besides Section 36(1) (supra) arises where the denial of fair hearing has been charged against a court or tribunal established by law and not before domestic or standing/ adhoc tribunals raised departmentally by the parties as the 1st respondent here. See: Bakare v. LSCSC (1992) 8 NWLR (Pt.262) 641 per Nnemeka Agu JSC. The question here therefore cannot be whether the said section has been contravened with regard to the appellant as there is no basis for so conjuring and so, as there is no basis for raising the same as the grounds cannot be raised as of right being of mixed law and fact requiring leave of court under section 233 (3) (supra). In sum these grounds have deviated from the issues on the pleadings and evidence on the record and cannot therefore be allowed to stand as grounds of law appealable as of right.
Having struck out ail the grounds of appeal but ground 7, it is trite law that the issues for determination ten of them excepting issue No.7 raised in the instant appeal are for not having any legal basis on which to stand incompetent and are hereby struck out. In that regard, specifically issues 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 raised in the appellant’s brief of argument having become otiose are hereby struck out and so also ail the arguments proffered as based on these issues, they also are hereby struck out being incompetent. See: Nonye v. Anyichie (2000) NWLR (Pt.39) 66 at 75, Attorney General Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646, Adelaja v. Fanoiki (1998) 2 NWLR (Pt. 131) 137, Ugo v Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 36. I am now left with issue seven to examine in this appeal. Before then let me observe that in fact the appellant has raised no issues for determination from grounds twelve to seventeen inclusive and the consequence in law is settled. He has acted completely by inadvertence in regard to them. They are therefore, in the circumstances, deemed to have been abandoned and for the avoidance of doubt each of them is hereby struck out. See: Niger Construction Ltd. v. Okugbeni (supra).
The remaining ground is Ground 7 and the issue raised therefrom is as follows:
‘Whether the learned Justices of the court below were right on the facts of the case when they held that ‘the complaint of tack of fair hearing by the trial Judge has not been made out and/or that the learned trial judge did not breach the principle of fair hearing in not calling upon counsel to address him on the two issues formulated suo motu’. This issue relates to ground 7 of the ground of appeal.”
The appellant in his brief has in regard to this issue challenged the propriety of the trial court in formulating this issue suo motu and deciding it without inviting addresses from the parties to this appeal particularly the appellant and it has been strenuously contended that the appellant’s right to a fair hearing has been seriously compromised/violated thus vitiating the entire trial.
In the main, the appellant’s case in this respect has made a heavy weather of the fact that not having been invited by the trial court as affirmed by the court below in formulating of the two issues raised suo motu by it and decided them has denied him of the opportunity of expatiating on any areas of his case with respect to the burden of proof and the standard of proof as alleged have been placed on him on the pleadings and by section 136 of the Evidence Act. The appellant is particularly irked that having placed sufficient materials to show who has power to discipline him and who actually has wrongfully disciplined him in the circumstances both on the pleadings and evidence, oral as well as documentary on this question that yet the trial court as affirmed by the court below has wrongly found that he has not discharged the burden of proof arising from the state of the pleadings nor has his case attained the standard of proof on the overall evidence before the court to sustain the same.
The court is urged to uphold the appellant’s contention and nullify the trial.
The respondents have relied on Ebo v. NTA (1996) 4 NWLR (Pt.442) 314 to urge that any court can formulate issues suo motu where the issue formulated by the parties would not advance the interest of justice and that it must be consistent with the grounds of appeal filed since the essence of formulating issue is to bring out the substance of the complaint in a ground of appeal. See: Otuo v. Nteoguilo (1996) 4 NWLR (Pt.440) 56, lncar (Nigeria) Plc. v. Bolex Enterprises Ltd. (1996) 6 NWLR (Pt.454) 318. Further, the respondents have submitted that there is no breach of fair hearing in not calling on the appellant to address it on the two issues so formulated as in that regard the trial court has simply condensed/summarised the issues formulated by both parties to two substantive issues which to all appearances are consistent with the grounds of appeal raised by the appellant. And that as no new issue has been raised the circumstances have made it unnecessary to invite the parties to address the court on the process and it is contended that the exercise does not amount to a denial of fair hearing as what the trial court has done amounts if I may repeat to simply summarising the issues raised by the parties based on the pleadings and the evidence before it. The court is urged to discountenance the complaint as per ground 7 as frivolous. There can be no doubt from the foregoing resume that “fair hearing” has become the whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. This approach of counsel in general is deprecated. Fair hearing should for what it is and represents in our adjudicative process before the courts be invoked with every sense of seriousness and in appropriate settings. It is not the case in the instant appeal.
It is noteworthy that this issue as encapsulated herein has been satisfactorily exhausted by the lower court in its decision on the same question, which I uphold in toto. To raise the same issue predicated on a much weaker and stale arguments in this court is highly deprecated particularly as the finding in this respect by the court below is not perverse but founded on accepted and admitted facts and evidence on the record.. The judgment cannot be faulted. Judicial opinions on the question of formulation of issues for determination by courts have been revealed in a plethora of decisions of this court wherefore some have approved the practice as against a group that has disproved the practice, which include such cases as Nwokoro & Ors. v. Onuma & Anor. (1990) 3 NWLR (Pt.136) 22; Adeniran & Anor. v. Interland Transport Ltd. (1991) 9 NWLR (Pt.214); Anie & Ors. v. Chlef Uzorka & Ors. (1993) 8 NWLR (pt.309) 1; Onwo v. Oko & Ors. (1996) 6 NWLR (pt.456) 584; Ogundayin v. Adeyemi (2001) 13 NWLR (pt.730) 403 and Agbaje v. Ajibola (2002) 2 NWLR (Pt.750) 127. On the other side of the cleavage of judicial opinions in approval of the practice are such cases as Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139, Ogunbiyi v. lshola (1996) 6 NWLR (pt.452) 12, Erhahon v. Erhahon (1997) 6 NWLR (pt.510) 667 and NEPA v. Isieveore (1997) 7 NWLR (pt-511) 135.
It is my view that the power of courts to formulate issues for determination at whatever level in the hierarchy of the courts although particularly so in appellate courts (where brief writing is a matter of the Rules of the court) inheres in the court in the interest of justice to enable courts to perform their adjudicative functions in our jurisprudence hence there are no rules of court prohibiting courts from doing so. I think that this discretion imbued with the interest of justice as its focus and premise has to be guided by the facts of each case and this has been the case with regard to the cases cited above. Courts should not make it a point of practice to formulate issues for the parties suo motu and deciding them without calling on both parties to address it in the process as it negates one of the cardinal principles of hearing the parties and providing a level playing ground in a trial of their matter before condemning either of them. Formulating issues by courts should be subjected to the rider of calling upon the parties to address it in such instances before judgment. By this process a modicum of opportunity as it were, is afforded the parties on the question; this accords with a reasonable man’s sense of having justice seen to be done. This is because courts should not be seen to jump pre-emptorily into the arena of contest however tempting the cause as courts have to avoid being muddied in the process of adjudication of cases before them and thus lose their centrality of impartiality as neutral umpires in our adjudicative system. To hold otherwise will undoubtedly unduly shackle the discretion of courts in the adjudicative process as this will not be grounded on any relevant rules of court or substantive law as such. I can find nothing offensive in such exercises. I uphold the intervention in this instant case upon its peculiar facts in the interest of justice. And it is my view that no denial of fair hearing amounting to a miscarriage of justice has thus been occasioned to the appellant.
In the instant case the trial court as rightly found by the court below has merely condensed/summarised the issues as formulated by the parties to the two issues raised suo motu and has proceeded to decide them one notable point as regards the said issues so formulated is that they are consistent with the grounds of appeal filed by the appellant in the appeal. These issues have unquestionably arisen from the said grounds and have clearly crystallised the substance of the complaint as contemplated in the grounds, the pleadings and evidence before the trial court and on the record before the lower court and have been necessitated in the interest of justice. In short, the trial court has simply condensed/summarized the issues raised by the parties in their cases. Therefore, I do not see any leg on which to stand to upturn the lower court’s decision on this point particularly so, if I may repeat when it has not occasioned a miscarriage of justice. I have made these points to support the opinion that courts have the power to formulate issues for the parties in appropriate cases when the justice of the cases as in this case so demands. It is a power to be sparingly exercised with extreme caution. In Labiyi v. Anretiola (supra) this court has held per Karibi-Whyte JSC that:
“The court below was free either to adopt the issues so formulated by learned counsel or to formulate such issues that are consistent with the grounds of appeal filed by the Appellant- It is in the observance of this principle in pursuit of the proper administration of justice that the court below considered an appropriate formulation of the issues consistent with the grounds of appeal filed when it was observed that although the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading”.
I am in unison with the reasoning in the above abstract in the judgment of my noble Lord and rely on it to hold in support of my reasoning herein that the appellant on the whole in the instant appeal has failed to nail the denial of fair hearing on the head in regard to his contention of the negation of his rights to a fair hearing in this matter leading to denying him justice in the matter and thus render the trial a nullity.
Finally on this question I agree with the court below that notwithstanding having formulated the two issues suo motu and deciding them that the appellant’s claim all the same, has not been dismissed after striking out the 2nd respondent from the suit as the trial court has gone on to consider whether or not the appellant has discharged the burden of proof to entitle him to his claim and thereby nullify his dismissal on the ground that the 2nd defendant has not been clothed with the power to act on behalf of the 1st respondent (as its alter ego) in the processes taken in his dismissal and so to arrive at the inevitable conclusion that his dismissal from the employ of the 1st respondent is otherwise wrongful. I resolve this issue against the appellant.
And being the only issue in the appeal I would have at this stage dismissed the appeal but there are other considerations in the matter. In the result the findings of the lower court as contained in its judgment are approved and the judgment is hereby affirmed by this court.
The truth of this matter as between the appellant and the 1st respondent is that their employment relationship has subsisted at all material times as a relationship of master/servant created as per by Exhibit ‘A” i.e. the contract of employment into which has been incorporated the provisions of exhibit ‘D’ – again, that is the staff manual of the Central Bank of Nigeria which contains the collective agreements as incorporated into the individual contracts of employment of the 1st respondent’s employees. This is so based on the facts and evidence before the court. Both documents constitute the basis for determining the contractual relationship and the conditions of the appellant’s employment with the 1st respondent here. It is common ground and as rightly found by the two lower courts that the nature of the appellant’s employment does not savour of statutory flavour. In other words, it is entirely founded on Common Law. The necessary implication arising from the parties’ contractual relationship in this matter if I may emphasize is one founded on the common Law and like all genera contracts is determinable by either side as provided in the documents exhibits ‘A’ and ‘D’ for breaches of any fundamental conditions as stipulated therein. One basic principle of master and servant relationship is that an employer can summarily dismiss/terminate the employment of his servant for gross misconduct. In the instant matter the 1st respondent reserves that power vis-a-vis the appellant as provided as per clause 6(4) and (5) of Exhibit ‘D’. Following the query Exhibit ‘E’ issued to the appellant on an allegation of fraud which has arisen from failing to maintain proper account records of the distribution of diesel to other locations of the 1st respondents’ points of business activities and has resulted in a heavy financial loss by which the 1st respondent has incurred huge financial deficits. The appellant has answered the query as per Exhibit ‘F’. He has in consequence of his answers appeared before the Central Disciplinary Committee by which it has been established in effect of the appellant having been given an opportunity to exculpate himself from the allegations of fraud. The appellant as I have also found has not been denied a fair hearing in the process of his dismissal upon the charge of gross misconduct leveled against him. I must observe that having dismissed all the grounds of appeal herein the court is obliged to reach these conclusions based on the findings and conclusions of the two lower courts which now stand before this court unchallenged. In other words, he has rightly been dismissed as per Exhibit ‘G’. The appellant’s case of wrongful dismissal has no leg on which to stand to contest it.
Having in this judgment discountenanced the denial of fair hearing in all its concomitants as raised by the appellant herein thus this matter falls to be considered on whether as per the Exhibits and evidence on the record as accepted by the lower courts the appellant has been properly dismissed from his employment upon his gross misconduct – my answer is in the affirmative. Where his dismissal is founded on the allegation of gross misconduct the appellant is not entitled to any notice or salary in lieu of notice as clearly provided in Exhibits ‘A’ and ‘D’. And it would be wrong in law to make any awards to him in these regards.
It is trite that an employer as the 1st respondent here is obliged to follow the right procedure in summarily dismissing his employee, in this case the appellant. The question then is whether his employment on a charge of gross misconduct has been determined as provided in exhibits ‘A’ and ‘D’ in this matter, which have laid down the procedure to be followed in doing so. By giving the appellant a query as per Exhibit ‘E’ and followed by the appellant’s answer exhibit ‘F’ and the convening of various Disciplinary Committees to look into the answer as per exhibit ‘F vis-a-vis the allegation of fraud, speak for themselves of having abided with the procedure laid down by exhibit ‘D’ for dismissing an employee. The appellant cannot be heard to complain as he has gotten all he is entitled to under a master/servant relationship at common law.
Once exhibit ‘G’ has been served on the appellant dismissing the appellant on grounds of gross misconduct he stands effectively dismissed as per the said exhibit and whether or not the dismissal is wrongful to entitle him to damages is the question for this court to resolve in this matter as reinstating him is out of the question. The position is that the two lower courts have not been persuaded that the dismissal of the appellant is wrongful and they are right. There is therefore a concurrent finding on the question.
The appellant has challenged the dismissal as being wrongful; this cannot be so on the peculiar facts of this case; it is clearly found that the appellant has grossly misconducted himself and has gotten what his gross misconduct deserves that is a summary dismissal. His dismissal even though without notice or any payment of salary in lieu of notice is not wrongful and cannot therefore in the circumstances constitute a breach of the conditions of his contract of employment.
In this respect, I agree and uphold the decisions of the two lower courts that there is no merit in the appellant’s claim and that it should be dismissed. I hereby dismiss this appeal as most unmeritorious. Having taken into account all the surrounding circumstances in this matter I make no order as to costs. Parties to bear their respective costs.
Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, JSC: I have read before now, the judgment of my learned brother Chukwuma- Eneh, JSC. I am in agreement with his reasoning and conclusion which I adopt as mine. The Preliminary objection succeeds. The appeal is hereby struck out. I abide by all consequential orders made in the lead judgment.
SULEIMAN GALADIMA, JSC: I have been obliged with a copy of the draft Judgment of my learned brother CHUKWUMA-ENEH JSC, just delivered. He is thorough in exposing the relevant facts of this case. He has equally dealt with the main issue leading to his reasoning and conclusion dismissing the appeal for being unmeritorious. I concur.
However I have a word or two on the preliminary objection raised by the Respondents as to the competence of the Appeal. This being a threshold issue it ought to be dealt with first. On 21/12/2011, the Respondents filed Notice of Preliminary Objection to the hearing of this appeal praying the court to strike out grounds Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, and 11 as well as issues formulated thereon, as being incompetent. lt is contended that these grounds are of mixed law and facts or facts simplicita for which no leave has been obtained, as required by S. 233(3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). Before now I have noted that no grounds have been distilled from 12 to 17 of the grounds of Appeal. They serve no purpose in this appeal and are accordingly struck out. In the lead Judgment, my learned brother in this appeal has set out Grounds 1 – 11 of the Appellant’s Grounds of Appeal with their particulars. I have carefully read through them. With exception of Ground 7 all other grounds without any doubt are grounds of mixed law and facts or facts simplicita. These grounds all complain essentially about failure of all the Justices of the Court of Appeal to properly appraise or evaluate or assess the evidence on the record leading them to arrive at the wrong conclusion. On the authority of Ogbechie & Anor V. Onochie & Ors (1986) 2 NWLR (Pt. 23) 484, where the grounds of appeal are of mixed law and facts or facts simplicita for which no leave of either the Court of Appeal or the Supreme Court has been obtained, are incompetent and the Supreme Court has no jurisdiction to entertain same. The Appellant has contended that Ground 8 comes within S. 233(2) of the said Constitution, that is, this being ground complaining that there was error of law. The complaint in the said Ground of Appeal is not about the denial of fair hearing by the trial court but about the denial of fair hearing before the Disciplinary Committee of the 1st Respondent (Central Bank of Nigeria) and the failure of the court to properly evaluate the evidence on the record to find as a fact that there was such a denial. It is thus a complaint about a decision touching on the contravention of S. 36(1) of the 1999 Constitution (supra).
Ground 8 has not arisen from a decision of the court below as to whether any of the provisions of Cap. (iv) of the Constitution has been breached or contravened, same cannot be brought as of right. Ground 8 being of mixed law and facts or facts simplicita does not fall under Cap. (iv) of the Constitution. At best it is mixed law and fact for which leave is required.
Parties are ad idem that Ground 7 of the ground of appeal which complains about the decision of the Court of Appeal in respect of the complaint of a denial of fair hearing, is a ground of law. Even on this, there is a concurrent finding of fact of the two lower courts to the effect that Appellant’s claim is devoid of merit.
This Court, as a practice will refuse to interfere with such concurrent findings of the two courts, unless, the Appellant shows that the findings are perverse. Since the Appellant did not demonstrate that the findings of the two lower courts are perverse, he cannot succeed.
For this little contribution and for detailed and fuller reasoning in the lead Judgment, I too, have to strike out all the grounds of appeal and the issues formulated from them. Appeal on ground 7 is lacking in merit, it is dismissed.
NWALI SYLVESTER NGWUTA, JSC: I had the privilege of reading in draft the lead judgment just delivered by My Lord, Chukwuma-Eneh, JSC.
I agree that Grounds 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of the appellant’s grounds of appeal are grounds of either mixed law and facts or facts.
Section 233 of the Constitution of the Federation 1999 (as amended) provides: –
“Section 233 (2)
An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:
a. Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
b. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
c. ……… (d) …….. (e) ……… and (f) ……….’’
Section 233 (3) provides:
“Subject to the provisions of subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
(Underlining mine for emphasis).
None of the appellant’s grounds of appeal on grounds other than law alone falls within the intendment of Section 233 (2) (a)-(f) of the Constitution. The said grounds filed without leave of the Court of Appeal or the Supreme Court first sought and obtained are invalid and the Court has no jurisdiction to hear and determine the appeal on the said grounds. See Nwaolisha v. Nwabufor (2011) All FWLR (pt. 591) 1438.
It is immaterial that Section 233 (3) of the Constitution does not provide a sanction for its violation. A ground of appeal which is incompetent for any reason is liable to be struck out. A right of appeal or any other right granted by law cannot be exercised without compliance with the law granting the right, or any other law or rule regulating the exercise of the right.
Appellant’s eleven grounds of appeal (with the exception of ground 7) and the issues distilled from them are incompetent and are hereby struck out.
Among the diverse curious submissions made by the learned Counsel for the appellant, this one stands out:
“…the Court, through its Registry, could adopt an administrative procedure of notifying an appellant that he requires the leave of Court for his appeal to lie…”
With due respect, learned Counsel’s reformation agenda, backed by over 30 years at the Bar, should be directed to the appropriate authority. Be that as it may, the appellant in this case did not settle the processes filed in the appeal. They were settled by his Counsel who is deemed to know that the court is a creation of Statute and in exercise of jurisdiction conferred by law, it has to comply with its rules of procedure. The court does not have to spoon-feed learned Counsel on the law and rules.
On the issue derived from the surviving ground of appeal, ground 7, there is a concurrent finding of fact of the two Courts below to the effect that appellant’s claim is bereft of merit. This court has no duty, and will decline, to interfere with the concurrent findings of the High Court and the Court of Appeal unless the appellant shows that the findings are perverse. See Okafor v. Idigo (1984) 1 SCNLR 481; Kpomiglo v. Kodadja (1933) 2 WACA 24.
Appellant did not show that the findings are perverse and his appeal is bound to fail.
For the above and the more exhaustive reasoning in the lead judgment, I also strike out all the grounds of appeal except ground 7 and the issues distilled therefrom. I dismiss the appeal on ground 7 as bereft of merit.
Parties are to bear their respective costs.
STANLEY SHENKO ALAGOA, JSC: I read before now in draft the judgment just delivered by my learned brother C. M. Chukwuma-Eneh, JSC. He has quite comprehensively dealt with the matter.
I have nothing useful to add. I also dismiss the appeal as lacking in merit while I make no order as to costs.
Appearances:
Johnson O. Esezoobo Esq. for Appellant.
Prince Aderemi Adekile Esq. for the Respondents.
