*Theophilus O. Ochonogor, Esq.1

1. INTRODUCTION:

The Supreme Court of Nigeria is established under the provisions of S. 230(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (hereinafter referred to as "the Constitution"). By the provisions of the Constitution, the Supreme Court, as the name implies, is the apex court in Nigeria and no appeal shall lie to any other body or person from any determination made by it.2This paper discusses the jurisdiction of the Supreme Court of Nigeria and particularly the decision in the case of Shittu v. P.A.N Ltd3 wherein the apex court made profound pronouncements on appeals to the Supreme Court involving mixed law and facts.

2. THE ORIGINAL JURISDICTION OF THE SUPREME COURT:

The Supreme Court has limited original jurisdiction. Indeed, the only original jurisdiction initially granted to the Supreme Court is in respect of any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.4The Constitution, however, made further provision that in addition to the original jurisdiction expressly conferred upon it, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly, excluding original jurisdiction with respect to any criminal matter.5The Supreme Court (Addition Original Jurisdiction) Act, 2002 was subsequently enacted by the National Assembly to widen the original jurisdiction of the Supreme Court.6

3. THE APPELLATE JURISDICTION OF THE SUPREME COURT:

The Supreme Court has exclusive jurisdiction to hear and determine appeals from the Court of Appeal.7The Constitution provides that appeals shall lie from decisions of the Court of Appeal to the Supreme Court as of right, inter alia, where the ground of appeal involves questions of law alone, the interpretation or application of the Constitution, questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened, death sentence and such other cases as may be prescribed by an Act of the National Assembly.8S. 233(3) of the Constitution, however, provides that "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." In the case of Thor Ltd v. F.C.M.B. Ltd9 the Supreme Court of Nigeria considered the provisions of section 213(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1979 which is in pari materia with the provisions of Section 233(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, and held that a party who is aggrieved by the decision of the Court of Appeal has a right of appeal on grounds of appeal which are of law only by virtue of subsection (2) but requires the prior leave of either the Court of Appeal or the Supreme Court where the ground or grounds of appeal are not of law alone but of mixed law and fact or fact simpliciter.

In the case of Kano Textile Printers Ltd v. Gloede and Hoff (Nig) Ltd10 while also interpreting the provisions of S. 233(3) of the Constitution the apex court held per Edozie, JSC (as he then was) as follows:

"By Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999, an appeal from the decision of the Court of Appeal to this Court on facts alone or mixed law and fact is subject to the leave of the Court below or this Court before it can be filed. A ground of appeal for which leave is required, if filed without such leave being obtained is incompetent; vide Ojemen v. Momodu II (1983) 1 SCNLR 188 at 205; Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 at 568; Akwiwu Motors Ltd. and Anor v. Sangonuga (1984) 5 SC 184 at 188."

The Law is now well settled that for a Court to be competent or possess the requisite jurisdiction to entertain and determine a matter placed before it, all three of the following conditions must co-exist:

  1. It is properly constituted as regards qualification of members of the bench, and no member is disqualified for one reason or another;
  2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
  3. The case comes before the Court initiated by due process of law, and upon thefulfilment of any condition precedent to the exercise of jurisdiction. (Emphasissupplied).See the case of John Shoy Int'l Ltd FHA11 in which Kekere - Ekun, JSC followed the decision of the apex court in Madukolu V. Nkemdilim;12 NNPC & Anor. Orhiowasele& Anors13 ; Bronik Motors Ltd and anor. v Wema Bank Ltd14 ; Okoya v Santilli15 .

From the provisions of S. 233(3) of the Constitution and the interpretations thereof in a plethora of decided cases, it is well settled that prior leave of the Court of Appeal or the Supreme Court is required to appeal against any decision of the Court of Appeal involving facts alone or mixed law and facts. Leave to appeal in such circumstances is, therefore, a condition precedent to the exercise of jurisdiction by the Supreme Court. The phrase 'conditionprecedent' has been has been interpreted in a plethora of decided cases. In the case of Atolagbe & Anor. V. Awuni & Ors.16, the Supreme Court per Mohammed, JSC held as follows:

"Condition precedent has been defined in the English Supreme Court Practice (White Book) 1991 Edition, in Order 18/7/10 thus: "Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action, there is yet somethingmore which must be done, or something more which must happen, in the particularcase, before he is entitled to sue, either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called acondition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law." (emphasis supplied)

Where an Appellant fails to seek and obtain the leave of the Court of Appeal or the Supreme Court to Appeal against a decision of the Court of Appeal involving facts alone or mixed law and facts, he has failed to fulfil a condition precedent to the exercise of jurisdiction by the Supreme Court. In the circumstance, the appeal has not been initiated by due process of law, as the condition precedent to the exercise of jurisdiction by the court has not been fulfilled. The failure to seek and obtain prior leave as required under sub – section (3) of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) renders the Appeal incompetent and, therefore, robs the court of the requisite jurisdiction to entertain the appeal. Such an appeal is liable to be struck out. Where, however, prior leave of the Court of Appeal or the Supreme Court is duly sought and granted to appeal against a decision of the Court of Appeal involving facts alone or mixed law and facts, the appeal is valid and the court is entitled to assume jurisdiction to hear and determine same.

4. THE EFFECTS OF ENACTMENTS OF THE FIRST AND SECOND ALTERATIONS ACTS, 2010 TO THE CONSTITUTION:

It is instructive to note that the provisions of S. 233 of the Constitution have since been altered by the following Acts of the National Assembly:

  1. 24 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010; and
  2. 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010.

S. 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010 amends the provisions of S. 233 of the Constitution and S. 24 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010 by substituting with a new S. 233. The new S. 233 of the Constitution retains sub – section (1) and substantially sub – section (2). However, sub–sections (3) – (6) are deleted. It is the author's most respectful view that an Appellant may appeal against the decision of the Court of Appeal to the Supreme Court only as of right in cases clearly stipulated under the new sub–section (2) of S. 233 of the Constitution. The previous position under S. 233(3) of the Constitution and such cases as Thor Ltd v. F.C.M.B. Ltd (supra) and Kano Textile Printers Ltd v. Gloede and Hoff (Nig) Ltd (supra) is, therefore, no longer good law.

In the case of Shittu v. P.A.N Ltd (supra) the Supreme Court had the opportunity to consider whether appeal other than on ground of law lies to the Supreme Court under the Constitution, the apex court held as follows:

  1. 233(3) of the Constitution no longer exists by reason of the First, Second and Third Alterations Act, 2010 to the Constitution;
  2. The Supreme Court can only hear appeals where the ground of appeal involves questions of law alone;
  3. The Supreme court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts and facts simpliciter; and
  4. Appeals on grounds of mixed law and facts and facts simpliciter terminate at the Court of Appeal.

In the case of Baba v. Hamman,17 the Court of Appeal had to consider the question whether the Supreme Court has jurisdiction to entertain appeals on grounds which involve questions of fact or mixed law and fact. Relying on the Supreme Court decision in Shittu vs P.A.N Ltd (supra) Uwa, JCA held as follows:

"I have considered the reliefs sought in the application, the grounds for the application, the supporting affidavit and argument of the counsel on both sides. It is clear that the application is sought pursuant to Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which is non - existent. Following the Alterations of the 1999 Constitution (as amended) there is no appeal to the Supreme Court on grounds of facts and mixed law and facts. All appeals on grounds of facts or mixed law and facts terminate at the Court of Appeal. By the Alterations of the 1999 Constitution 1st, 2nd and 3rd Alterations, there is no longer Section 233 (3) of the Constitution, under which the present application was brought. The resultant effect is that the Supreme Court can only now entertain appeals where the ground of appeal involved questions of law..."

5. CONCLUSION:

From the decision of the Supreme Court in Shittu v. P.A.N Ltd (supra) which was followed by the Court of Appeal in Baba v. Hamman (supra), it is now well settled that appeals involving facts alone or mixed law and facts terminate at the Court of Appeal as only appeal on law alone lies from the Court of Appeal to the Supreme Court. This is sequel to the enactment of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010 by the National Assembly which has amended S. 233 of the Constitution by deleting sub – section (3) thereof under which an Appellant previously appealed against decisions involving facts alone or mixed law and facts by leave of court. The decision of the Supreme Court in Shittu v. P.A.N Ltd (supra) clearly stating the non – existence of S. 233(3) of the Constitution by virtue of the provisions of S. 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010 has dealt a fatal blow and thus a death knell to appeals from the Court of Appeal to the Supreme Court involving facts alone or mixed law and facts. All such appeals must now terminate at the Court of Appeal. Ordinarily, this ought to drastically reduce the number of appeals that terminate at the Supreme Court. However, we are not about to witness such a reduction as even the apex court itself has in the past acknowledged the misunderstanding and difficulty in distinguishing a ground of law from a ground of mixed law and facts. In the case of Ogbechie & Ors. v. Onochie & Ors,18, Eso, JSC (as he then was) stated that:

"There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact ..." See also Ifediora & Ors. v. Ume & Ors.19 Nwadike v. Ibekwe20 ; Ajunwa & Anor v. SPDC21 ; Opuiyo v. Omoniwari22 .

Thus, in Shittu v. P.A.N Ltd (supra) at page 274E – G, while Rhodes – Vivour, JSC in the leading judgment held that the three grounds of appeal were of mixed law and facts and, accordingly struck out the appeal, three other Justices (Okoro, JSC; Sanusi, JSC; and Bage, JSC) concurring, Peter – Odili, JSC (as he then was) expressed the dissenting view that the three grounds of appeal are grounds of law within the ambit of the provisions of S. 233(2) of the Constitution for which no leave needs to be sought for or obtained. What we are most likely to witness, therefore, are cases that will get to the Supreme Court but will suffer the same fate as Shittu v. P.A.N Ltd (supra).

Footnotes

1. Theophilus O. Ochonogor, Esq. is a Partner at Alliance Law Firm, Lagos, Nigeria.

2. S. 235 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended); Amaechi v. INEC & Ors (2008) LPELR – 446 (SC) at 274E – F.

3. (2018)15 NWLR (Pt. 1642) 195 at 209 – 210H – A.

4. S. 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

5. S. 232(2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

6. AG Federation v. AG Lagos State (2017) LPELR – 42769 (SC) at pages 32 – 33B – F.

7. S. 233(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

8. S. 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

9. (2002) 2 SC (Pt. 1)138 at 148.

10. (2005) LPELR – 1660 (SC) at page 7B – D.

11. (2016) 14 NWLR (Pt. 1533) 427 at 452- 453H-B.

12. (1962) 1 All NLR 587.

13. (2013) LPELR-24710(SC) at pages 25-26F

14. 1983 1 SCNLR 296

15. (1990) 2NWLR (Pt.131) 172

16. (1997) LPELR - 593 (SC) 28 - 29E – B.

17. (2020) LPELR - 49647 (CA) at pages 2 – 5F – A.

18. (1986) 2 NWLR (Pt. 23) 484 at 491.

19. (1988) LPELR – 1434 (SC) at 28 -29 per Wali, JSC (as he then was).

20. (1987) 4 NWLR (Pt. 67) p.718

21. (2011) 12 SC (Pt. IV) P 118

22. (2007) 6 SC Pt. 1 p.35

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