Judgment
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): This Appeal No. SC.276/2014 is against the judgment of the Court of Appeal delivered on 25-3-2014 in Appeal No. CA/A/671/2013 affirming the judgment of the High Court of the Federal Capital Territory Abuja delivered on 11-12-2012 in Suit No. FCT/HC/CV/429/2009.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellant’s reply brief. The appellant’s brief raised two issues for determination as follows- 1. Whether by the conduct of the Respondent, the respondent did not accept the start of date of the contract by the Appellant in their letters of 28th day of June, 2006? 2. Whether the Appellant has shown a case for the payment of quantum meruit in respect of the contract?
The respondent’s brief adopted and argued the two issues raised for determination in the appellant’s brief of argument.
I will determine this appeal on the basis of the two issues raised for determination in the appellant’s brief.
The two issues did not question any part of the decision of the Court of Appeal. They are framed as abstract questions and do not allege any error or misdirection or raised any complain about any part of the judgment of the Court of Appeal. Whereas the two grounds of appeal complain of errors of law in particular parts of the judgment of the Court of Appeal, the issues are framed as theoretical questions without reference to any part of the judgment of the Court of Appeal complained of in the grounds. An appeal against a judgment is to show that the judgment is not correct in some respect.
The ground of appeal is a complain against the part of the judgment isolated and attacked therein. The issues for determination distilled from such grounds must relate to the complain in the grounds of appeal. An abstract or theoretical issue is incompetent and not valid for consideration in an appeal. Therefore, issues nos. 1 and 2 are incompetent and hereby struck out. As it is, the two grounds of this appeal are abandoned as no issue have been distilled from them. They are hereby struck out.
There is a more fundamental problem in this appeal.
The appeal is against the Court of Appeal findings of facts concurring with the trial Court’s finding of fact that the appellant’s acceptance of the respondent’s offer was a counter-offer, that there is no evidence that the respondent accepted the counter-offer and that therefore there was no contract of retainership in existence between them. The two grounds of appeal are complains of facts.
Therefore, by virtue of Section 233(2) and (3) of the 1999 Constitution, the leave of the Court of Appeal or of this Court to bring this appeal on facts or mixed law and fact ought to have been first sought for and obtained before the appeal was filed. No such leave was obtained by the appellant to bring this appeal. As it is, the appeal is incompetent and is hereby struck out. I make no order as to cost.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Agim, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also find no merit in the appeal and deserves to be struck out. Accordingly, it is struck out by me.
JOHN INYANG OKORO, J.S.C.: I had the privilege of reading before now in draft the lead Judgment of my learned brother, Emmanuel Akomaye Agim, JSC just delivered. I am in agreement with the reasoning and conclusion arrived thereat, that this appeal is incompetent and deserves to be struck out. I also strike out the appeal and I make no order as to cost. Appeal struck out.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I agree with him that this appeal is incompetent and must therefore be struck out. The law says that where a ground of appeal involves questions of fact or of mixed law and fact, leave to appeal must be obtained from the Court below or this Court, and the failure to obtain the requisite leave renders the appeal filed incompetent. See Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 and Akpasubi V.
Umweni (1982) 11 SC 113, wherein Eso, JSC, explained that- The appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where – question of fact has been brought before this Court without leave, the Court has no jurisdiction.
So, where an appeal is to be with leave, but none was obtained, the condition precedent to the validity of such an appeal has not been fulfilled, and the appeal is incompetent, and the appellate Court has no jurisdiction to entertain same – Ukpong V. Comm., Finance and Econ. Dev. (2006) 19 NWLR Pt. 1013) 187. In other words, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless the leave of Court is sought and obtained.
In this case, the two Grounds of Appeal contained in the Notice of Appeal filed by the Appellant in this Court raise questions of fact and he did not obtain leave of Court before filing the Appeal, and with no ground(s) of appeal left to sustain the appeal, the appeal must be struck out and it is, hereby, struck out. I also make no order as to costs.
ABDU ABOKI, J.S.C.: I had the privilege of reading in draft, the judgment written by my learned brother, EMMANUEL AKOMAYE AGIM, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The appeal, as shown in the lead judgment, is one the law requires the Appellant to seek leave of either the Court below or this Court before filing. The Record of Appeal clearly shows that Appellant did not obtain the required leave before his appeal. This failure goes to the root of the appeal and robs this Court of the jurisdiction to hear and determine the appeal.
See Section 233(2) and (3) of the CFRN 1999, as amended. InFasuyi & Ors v. PDP & Ors (2017) LPELR 43462 (SC), this Court stated thus: “it is a settled matter of law that an Appellant seeking to appeal against a decision of the Court of Appeal does so as of right only where the ground of appeal involves questions of law alone and when it involves a question of facts or mixed law and facts, the need for leave of Court is of the essence… ” The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground.
Thus, an appeal to this Court cannot be entertained once the grounds are of facts or mixed law and fact and leave has not been asked for or obtained.
It is on account of this and the fuller reasons in the lead judgment prepared by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, that I also find this appeal to be incompetent and it is hereby struck out.
I abide by the order as to cost.