METAL CONSTRUCTION (WEST AFRICA) LTD (APPELLANT)
v.
D.A. MIGLIORE AND ORS IN RE MISS C. OGUNDARE (RESPONDENT)
(1990) All N.L.R. 142
Division: Supreme Court of Nigeria
Date of Judgment: 2nd February, 1990
Case Number:
Before: Obaseki, Eso, Nnamani, Karibi-Whyte, Wali JJ.S.C.
The appellant as plaintiff, issued out an originating summons dated 23rd December 1983 at the Federal High Court. The first three respondents/defendants were not resident in Nigeria. The appellant purported to have served a law firm (in Nigeria) with processes meant for the first three respondents on the ground that the said firm were solicitors to the respondents in another suit.
After several appearances by the said firm on behalf of the respondents, a solicitor from the firm brought an application for the setting aside of the service of the summons on his firm on behalf of the first three respondents on the ground that they should be served personally and that his firm had no instruction to appear for them. The application was granted by the trial Court.
The appellant appealed to the Court of Appeal which ordered without any argument on the matter that the papers be now served on Miss Ogundare a solicitor in the said firm, to be forwarded by the said Solicitor to the 1st, 2nd and 3rd respondents. An application was brought for the order to be quashed which was granted by the Court of Appeal. The appellant appealed to the Supreme Court on the ground that: "The Court of Appeal erred in law in setting aside the order made on 17th April, 1985."
To which a preliminary objection was raised on the ground that the appeal was incompetent and should be struck out in that the sole ground of appeal was not based on law only and therefore could not be sustained in law.
HELD:
(1) A ground of appeal is the allegation of error of law or fact made by an appellant as the defect in the judgment appealed against and on which it is relied upon to set same aside.
(2) The term "question of fact" has three different meanings viz:-
(a) Any question that is not predetermined by a rule of law but which depends on the circumstances and concerns the existence or some state at some past time relevant to the inquiry of some person or thing or state of affairs ascertainable by the senses or by inference from conduct or happenings. Examples include colour, time, identity of person and what was said, done or heard.
(b) Any question except the question as to what the law is.
(c) A question which is to be answered by the jury instead of the judge.
(3) The term "question of law" is also capable of three meanings, as follows:-
(a) A question which the court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be truth and justice of the matter.
(b) A question as to what the true rule of law is on a certain matter, issue; what its proper formulation is and what it requires or permits situations like this arise out of uncertainty of the law.
(c) A question which committed to and answered by the authority which normally answers questions of law only, that is the judge and not the jury.
(4) It is not in every case where the facts in issue are undisputed that a question of law will be inevitably deemed to have arisen. Settled facts will only raise a question of law where authoritatively predetermined rules of law which govern the conclusions from such fact exist.
(5) At the hearing of an appeal on matters of fact investigation of the evidence and the proper inference from it can be undertaken whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether by the rules of law facts admitted or held proved justify a particular decision.
(6) Discretionary question of impression or opinion in respect of which reasonable men may arrive at different conclusions on the same evidence are questions of fact.
(7) The setting aside by a court of its own decision involves the exercise of judicial discretion the main objective of which is to avoid injustice to the party who would be prejudiced from the effect of the irregular decision. Therefore a ground of appeal against such decision raises an issue of law coupled with the exercise of discretion.
(8) A ground of appeal couched as and christened ground of law does not ipso facto raise a question of law.
(9) The appellant's ground of appeal raised the question whether in setting aside its own decision the Court of Appeal was right in its determination of the truth of the matter, and to discover the right or justice of the matter which are question of fact and not whether it is governed by predetermined authoritative rules of law which is a question of law.
Preliminary objection sustained.
Statutes referred to:
Constitution of the Federal Republic of Nigeria, 1979.
Rules of the Supreme Court of Nigeria, 1985.
Cases referred to:
Ashbridge Investments Ltd. v. Ministry of Housing and Local Government (1965) 3 All E.R. 371.
Evans v. Bartlem (1937) 2 All E.R. 646.
Fidelitas Shipping Co. Ltd. v. Ex partchleb (1965) 2 All E.R.4.
Griffitha v. V.P. Harrison (Watford) Ltd. (1963) A.C.I.
Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5.
Ige v. Olunloyo (1984) 1 S.C.N.L.R. 158.
Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130.
Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt. 67) 718.
Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt. 6) 167.
Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484.
Ojemen v. Momodu II (1983) 1 S.C.N.L.R. 188.
Oke v. Eke (1982) 12 S.C. 288.
Oluwole v. LSDPC (1983) 5 S.C. 1.
R. v. Industrial Injuries Commissioner (1966) 1 All E.R. 106.
State v. Omeh (1983) 5 S.C. 20.
U.B.A. v. Gmbh (1989) 3 N.W.L.R. (Pt. 110) 374.
S.C. 251/1985
Kayode Sofola for the Appellant.
Chief F.R.A. Williams, S.A.N. for the Respondent. (With T.E. Williams, Esq. and Miss M.O.A. Ayeni)
Karibi-Whyte, J.S.C.:-The point of law involved in this ruling is for a determination whether the only ground of appeal, filed in this appeal consists of a question of law alone in which case Appellant does not require leave of the Court to appeal to this Court. Leave is required if it is otherwise. The solitary ground of appeal under consideration with particulars reads:-
"The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.
Particulars
(1) The application to set aside the order should have been refused because of the delay of over two months by the Applicant in moving to set it aside.
(2) Upon all the facts before the Court of Appeal, it was evident that Counsel instructed by Messrs Kehinde Sofola & Company had appeared before the Federal High Court on behalf of D.A. Migliore, A. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985, that service of the Notice of Appeal be upon Messrs Kehinde Sofola & Co., in accordance with the provisions of the Court of Appeal Rules.
(3) The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the Solicitors meant that the Solicitors were compelled to act for the parties involved."
A better understanding of the issues and a proper elucidation and analysis of the ground of appeal can only be after appreciating the background and the circumstances which gave rise to the formulation of the ground of appeal.
Appellant who was the Plaintiff in the Federal High Court issued out an originating summons dated 23rd December, 1983. The Defendants to this summons are D.A. Migliore, A. Mangili, C. Mangili, T. Okeowo. The affidavit in support of the originating summons was sworn to by T. Okeowo. D. A. Migliore, A. Mangili and C. Mangili are not residents in the country. Plaintiff/Appellant purported to have served Kehinde Sofola & Co., who sometimes were solicitors to the Defendants in another matter. The Defendants were not served personally as required by the Rules of Court. After several appearances by Solicitors in the Chambers of Kehinde Sofola & Co. on behalf of the Defendants, Kehinde Sofola, S.A.N., senior Counsel in the Chambers brought an application seeking to set aside the service on the ground that he had no instruction from the Defendants to appear for them. The learned Chief Judge of the Federal High Court on the 18th December, 1984, granted the application and held that service upon the Chambers of Kehinde Sofola & Co. solicitors was not proper service on the 1st, 2nd and 3rd Defendants. Appellant appealed to the Court of Appeal against the ruling setting aside the service of the originating summons on Kehinde Sofola & Co. Solicitors.
When the matter came up in the Court of Appeal, on the 11th March, 1985 the learned presiding Justice (P. Nnaemeka-Agu, J.C.A. as he then was) (but now of this Court) observed and drew attention of Appellant's counsel to the fact that the substantive defendants had not been served with the originating summons. The Appeal was accordingly adjourned to the 17th April, 1985 to enable counsel to the Appellants to consider his position. It was also observed that "as on the subsisting order of court, they, are not being represented by Mr Sofola & his firm." "They" referred to the Defendants in the originating summons.
On the 17th April, 1985, with P Nnaemeka-Agu, J.C.A., as a member of the panel, but Ademola, J.C.A. presiding, the court received a letter from Messrs Sofola & Co., that they had no instruction from the Defendants, to represent them. Miss Ogundare from the same Chambers confirmed. Without any argument on the appeal, the Court made the following Order.
"The papers and Motion filed by the applicant be now served on Miss Ogundare of Messrs K. Sofola & Co. Solicitors, to be forwarded by the said Solicitors to the 1st, 2nd & 3rd Respondents and upon this being done, the Solicitors should inform this Court about such service on the Respondent. Application adjourned sine die."
This is the order of the 17th April, 1985.
In a motion dated 21st June, 1985 which was moved on the 9th July, 1985, Miss Ogundare sought for an Order setting aside the order made by the Court of Appeal on the 17th April, 1985, directing that the Motion and papers filed in this appeal be served on the Applicant as solicitor acting for the 1st, 2nd and 3rd. Respondents herein.
Applicants swore to and relied on averments in their supporting affidavit. Paragraphs 3, 4, 5, and 9 of the affidavit which are instructive and important are as follows-
"(3) That Messrs Kehinde Sofola and Company had acted for the above-named 1st, 2nd and 3rd Respondents in other matters upon their specific instructions.
(4) That Messrs Kehinde Sofola and Company have received no instructions in this matter, neither have they received remuneration in respect thereof.
(5) That Messrs Kehinde Sofola & Company are not in charge of this matter and are not in any way responsible for the conduct of the case . . .
(9) That I do not know the present addresses of the 1st, 2nd, 3rd Respondents or any of them and nobody in our Chambers knows their addresses or where about."
Several Exhibits were attached to the affidavit. Appellant filed a counter-affidavit. Applicants filed a reply. In a considered ruling read by Kolawole, J.C.A., dated the 10th July, 1985 the Court of Appeal, Uthman Mohammed, Presiding, with Kutigi, all agreeing, granted the application and set aside the ruling of the Court dated 17th April, 1985.
The Appeal before this Court is against the ruling of the 17th July, 1985.
I have already set out the only ground of Appeal filed by appellant against the ruling. The question before us is whether the ground of appeal relied upon by the Appellant in this appeal is competent. This has arisen following the notice by the applicant/respondent dated the 7th day of December, 1988 of intention to raise a preliminary objection that the appeal is incompetent and should be struck out in that the only ground of appeal cannot be sustained in law. The grounds relied upon by the applicant are that
"(1) The order, the subject matter of the Appeal, is an interlocutory order and the sole ground of appeal is not based on law alone.
(2) Leave to appeal against the said order pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria 1979 has been sought and refused by this Honourable Court on the 14th day of May, 1986."
It is important to restate, for emphasis, that the real grievance of the Appellant is that the Court of Appeal set aside its own order MADE ON THE 17th April 1985 wherein it ordered that the motion papers and other processes in the appeal against the ruling of the judgment of the Federal High Court be served on Messrs Kehinde Sofola & Co. and to constitute service on the 1st, 2nd and 3rd Defendants in the Originating summons taken out by the Plaintiff.
The dominant concept in the contention is a ground of Appeal. What then is a ground of Appeal? I consider it presumptuous, but will still venture to define a ground of appeal as consisting of the error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside. It is true that all questions which arise for consideration and determination before the court fall within the two broad categories of questions of law and questions of fact. There is however a third category which is a hybrid of the two and are referred to as mixed law and fact. These terms are ambiguous and possess more than one meaning. It is their ambivalence that makes it difficult, despite valiant judicial attempts at classification and categorisation, to draw uniform rules for distinguishing between questions of law and questions of fact. As a recognition of the importance and relevance of this distinction in the appellate judicial process, the Constitution of the Federal Republic of Nigeria 1979 has made provision for the exercise of the right of appeal in those cases where the ground of appeal relied upon is found on (a) law alone and (b) on mixed law and facts, or on facts simpliciter. Whereas appellant can exercise his right of appeal to this Court without leave of the court and as of right, where the ground of appeal is on law alone and whether the decision is interlocutory or final, See section 213 (2)(a) the amplitude of the exercise of the right of appeal is limited in all other cases, see section 213(3)-See Oluwole v. L.S.D.P.C. (1983) 5 S.C.1 State v. Omeh (1983) 5 S.C.20. In such other cases involving the exercise of right of appeal on grounds of mixed law and facts or on facts, leave of the Court of Appeal or of this Court is required-See Nwadike v. Ibekwe (1987) N.W.L.R.(Pt. 67) 718, Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484, Ifediorah v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5, Ojemen v. Momodu 11 (1983) 1 SCNLR 188; Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt. 6) 167.
The difficulty of appellants formulating grounds of appeal falling within either of these categories as required, as the case may be, has been the Gordian knot of counsel drafting grounds of appeal. This has been subject matter of several judicial decisions in our Courts. See Ojemen v. Momodu 11 (supra); Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484; Ige v. Olunloyo (1984) 1 SCNLR 158, Oke v. Eke (1982) 12 S.C. 218. Counsel to the applicant has filed a very helpful brief of argument in support of his preliminary objection. The respondent to this preliminary objection was content with a one page brief which has assumed without argument that the ground of appeal challenged is unarguably a ground of law.
Kayode Sofola for the applicant has pointed out, and correctly too that Respondent had earlier applied, replying on the same ground of appeal now challenged, for leave to appeal to this Court. The application was refused on the 16th May, 1986.
The attitude of counsel to the Respondent would seem to me to be that the character of the ground of appeal, whether it is one of law alone or one of fact, would depend upon the label he has chosen to give to it. Our courts have consistently and clearly decided the contrary-See Ojemen v. Momodu 11 (supra), Nwadike v. Ibekwe (supra).
I shall here adopt the illuminating dictum of Nnaemeka-Agu, J.S.C., in Nwadike v. Ibekwe (supra) at p. 743 where he said,
". . . it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by christening it 'error of law' or 'misdirection in law.' "
See also Agbaje, J.S.C., at p. 729 and Obaseki, J.S.C. in Ojemen v. Momodu 11 (supra) at p.211. I am afraid the stratagem of counsel for the appellant in this appeal appears to suggest just that. The rejected application for leave to appeal on the same grounds has now been put forward as a ground of law not requiring leave. It is therefore pertinent to examine the phrases: "a question of law" and "a question of fact." It is the confusion in determining the line of distinction between the concepts that renders distinguishing obscure and difficult. It is not a subject matter for argument that conclusions of law are supported by inferences from facts. Generally considered, the term "question of law" is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law.
The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning.
The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.
Now turning to what is a question of fact? It is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.
A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.
Salmond has pointed out that
"The sphere of judicial discretion includes all questions as to what is right, just, equitable, or reasonable-so far as not pre-determined by authoritative rules of law but committed to the liberum arbitrium of the courts. A question of judicial discretion pertains to the sphere of right, as opposed to that of fact in the strict sense. It is a question as to what ought to be, as opposed to a question of what is. Matters of fact are capable of proof, and are subject of evidence adduced for that purpose. Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the Court. In determining questions of fact the court is seeking to ascertain the truth of the matter, in determining questions of judicial discretion it seeks to discover the right or justice of the matter."-See Jurisprudence Tenth Ed.(1947)p. 69.
There is therefore again the distinction between questions of fact, and question of the exercise of judicial discretion. In a broader sense there is not much difference whether an act is right, or just or reasonable or whether that act has been done. The former is merely an exercise of moral judgment, an expression of opinion on the facts admitted and is therefore differentiated from the fact simpliciter. It is nevertheless a question of fact with the exercise of discretion. In Griffiths v. J.P. Harrison (Watford) Ltd. (1963) A.C. 1 at p. 19 Lord Denning expressed it succinctly thus:-
"Reasonable people on the same facts may reasonably come to different conclusion, and often do Juries. So do Judges. And are they not all reasonable men?"
It has therefore been recognised that these more or less discretionary questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of fact. A finding of fact has been defined as an assertion that a phenomenon exists, has existed or will exist independent of any assertion to its legal effect-See Louis Jaffe-Judicial Control of Administrative Action, p. 548. It is therefore different from question of law which are determined by authoritative legal principles.
Every determination of a court consists of finding of facts. There is the primary finding from which inferences the court comes to its ultimate decision. This ultimate finding from inferences from the primary findings of fact may result in conclusions of law or fact or both.
I shall now turn to analyse the ground of appeal to consider whether as claimed by the Appellant it consists of a ground of law alone. I have already stated in this ruling that a ground of appeal is the allegation of error of law or fact made by the appellant on which it is relied to set aside the decision. Where a ground of appeal alleges error in law, as in the instant case, Order 8, rule 2(2) RSC 1985 stipulates that the particulars of error shall be clearly stated. Thus in determining the nature of the challenge of the judgment it is relevant and crucial to construe the ground of appeal together with the particulars of error alleged.
In his brief of argument which he adopted in his oral argument before us, Chief Williams, S.A.N., learned Senior Counsel to the Appellants submitted that the particulars of error raise issues of law alone. He submitted that the facts set down under Item 1, do not cover any fact which is in dispute. Chief Williams pointed out that the order which was subsequently set aside was made on the 17th April, 1985, when a representative of K. Sofola & Co. who was ordered to forward papers and motion was in court. He pointed out that the motion to set aside the order was not made until 25.6.85.
It was also submitted that Item 2 of the particulars are matters of record and involve no conflict of testimony. Item 3 raises a pure issue of law.
At the risk of being tedious and repetitive, but in the interest of clarity, I shall reproduce each of the particulars which are clearly relevant to my consideration of this preliminary objection.
Particular 1 is that