When an appeal is brought against the finding of facts by the lower court (the Court of Appeal, in the context of this article) such appeal is said to be based on grounds of fact. In the same vein, where the question to be determined by the appellate court is a question as to what the law is, such will invariably amount to a ground of law. Although the foregoing might seem impossible to misapprehend, the determination of the grounds upon which an appeal has been brought is often perplexing when the questions to be determined by the Appellate court are a mixture of facts and law. This is what is referred to as ground (s) of mixed fact and law. Realistically, only a thin line, perhaps of a hair’s breath, exists between a ground of law and one of mixed facts and law.
Prior to the widespread reports on the purport of the decision of the Supreme Court in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195 (‘’Shittu’s case’’), the law was clear that whenever a party wished to appeal to the Supreme Court on grounds of fact or mixed fact and law, leave of Court must be sought and obtained.However, there were reports that the judgment of the Supreme Court in Shittu’s case was to the effect that, pursuant to the first, second and third Alterations to the Constitution of the Federal Republic of Nigeria 1999, principally the third Alteration thereto, there can be no appeals to the Supreme Court with leave of court (in other words, appeals to the Supreme Court could only be as of right). As a matter of fact, the judgment of the court was reported as being to the effect that appeals on grounds of fact or mixed fact and law could no longer lie to the Supreme Court.
This writer was unfortunate to receive such unsettling news (though unconfirmed) just a day before he was due to appear before the Court of Appeal, Lagos Division, for judgments in two sister-appeals, one of which could have been appealed to the Supreme Court with leave of either the Court of Appeal or the Supreme Court (because they would have been based on questions of fact, or at best, mixed facts and law).
The writer was however privileged to read the judgment of the Supreme Court in Shittu’s case and concisely examines the actual purport of the judgment, vis-à-vis what appears to be the imminent fate of Appeals to the Supreme Court on grounds of facts or mixed facts and law.
IS SHITTU’S CASE TO THE EFFECT THAT THERE CAN BE NO APPEALS TO THE SUPREME COURT ON GROUNDS OF FACTS OR MIXED FACTS AND LAW?
Suffice it to state that the major issue for determination before the Justices of the Supreme Court in the instant case was whether as contended by the Respondent (P.A.N) in its Preliminary objection to the appeal, the grounds of appeal as articulated by the Appellant (Shittu) were on grounds of facts, or at best, mixed facts and law; and the failure of the Appellant to seek leave before appealing on such grounds inevitably rendered his appeal incompetent.
Upholding the Respondent’s Preliminary objection and dismissing the Appellant’s appeal, Rhodes-Vivour, JSC, who delivered the Supreme Court’s lead Judgment stated as follows (underlining for emphasis):
Applying all that I have been saying, grounds 1, 2 and 3 contained in the Notice of Appeal, question the learned trial judge’s exercise of discretion. Discretion is an issue of fact and law. They are grounds of mixed law and fact. They are caught up by section 233 (3) of the Constitution and are hereby struck out on the Preliminary Objection of Mr. O. Tolani. There is no other ground to sustain the appeal. Preliminary objection succeeds. Appeal struck out. – Pp 209, Para. G
In view of the fact that section 233 (3) which was relied upon by the Supreme Court in dismissing Shittu’s appeal relates to the procedure for appealing to the Supreme Court with leave of the Court, the above excerpt from the lead judgment of Rhodes Vivour, JSC, is clearly indicative of the fact that the Supreme Court recognises that appeals from the Court of Appeal may lie to it on grounds of fact or mixed fact and law, albeit such must come with the leave of Court.
Therefore, the answer to the question ‘Did the Supreme Court hold that there can no longer be appeals to Supreme Court with the leave of Court?’ is an emphatic ‘No’. This should effectively dispel all rumours that Nigerian case law on the subject has changed.
THE CONSTITUTIONAL PROVISION ON THE SUBJECT
Following the enactment of the Third Alteration Act of 2010, the provisions of section 233 of the 1999 Constitution of the Federal Republic of Nigeria have been fundamentally altered. As such, the above reasoning applied by the Supreme Court in upholding the Respondent’s Preliminary Objection appears to be contrary to the extant provisions of the constitution on appeals to the Supreme Court.
Before the enactment of the 3rd Alteration Act of 2010, section 233 (2) of the Constitution of the Federal Republic of Nigeria (Amended) 1999 provided for instances where appeals from the decisions of the Court of Appeal would lie to the Supreme Court as of right, whilst section 233 (3) and (4), particularly (3) provided for instances wherein appeals would 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. However, following the enactment of the Third Alteration Act, the constitutional position on appeals with leave of court has deeply changed, nay obliterated.
Under the Third Alteration Act, whilst sections 233 (1) and (2) (relating to appeals to the Supreme Court generally and on grounds of law respectively) are retained, sections 233 (3) (4) and (5) (all of which relate to appeals with leave to the Supreme Court), are not retained, and as such, are no longer in existence. Importantly, the absence of section 233 (3) in particular connotes the absence of any constitutional basis upon which appeals that are not on grounds of law, as provided for in section 233 (2) (a), or are not provided for in section 233 (2) (b)-(f), may be brought to the Supreme Court. In other words, it appears that, the Constitution of the Federal Republic of Nigeria (as amended) does not recognise appeals with leave to the Supreme Court.
For the clarity and ease of reference, in summary, section 233 (2) (a) – (f) provides as follows:
- where the grounds of appeal against the decision of the Court of Appeal involves questions of law alone, such appeals shall lie as of right to the Supreme Court;
- appeals to the Supreme Court against decisions of the Court of Appeal as to the interpretation or application of the constitution will lie as of right;
- appeals to the Supreme Court against decisions of the Court of Appeal on contraventions of any of the provisions of Chapter IV of this Constitution (Fundamental Rights), shall be as of right;
- decisions in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court, shall be appealable as of right to the Supreme Court;
- decisions of the Court of Appeal bordering questions of the validity of the election of a person as President, Vice-President, Governor, Deputy-Governor or whether the tenure of any such persons has ceased will be appealable to the Supreme Court as of right; and
- an appeal from a decision of the Court of Appeal may lie as if right by virtue of the provisions of an Act of the National Assembly.
With the exclusion of Sections 233 (3) (4) and (5), it would seem that the very clear intention of the Draftsmen is that appeals to the Supreme Court may only lie as of right and in the manner provided for under section 233 (2). With such fundamental alteration of Nigeria’s Constitutional law, it is remarkable how the passage of the third alteration act has been hugely unnoticed.
JUDICIAL DISPOSITION ON THE SUBJECT
Bearing in mind the underlying purpose of this article, it is important to note the disposition of the Supreme Court on appeals to it with leave. Whilst the enactment of the Third Alteration Act appears to have gone oddly unnoticed despite the fact that it ushered in a fundamental alteration to the Constitution, the following obiter dictum of Rhodes-Vivour, JSC, in delivering the lead judgment of the Supreme Court in the case under review (Shittu’s case) stands out: (Underlining for emphasis):
“…I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Act, 2010. By the alterations, there is no longer section 233(3) of 1999 Constitution which allowed leave to appeal to the Supreme Court. That is to say, by virtue of section 233(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Supreme Court can only hear appeal where the grounds involves questions of law. The apex Court no longer has jurisdiction to hear appeal where grounds of appeal involve questions of mixed law and facts. Appeals on grounds of mixed law and facts ends in Court of Appeal.’’
Going by the above excerpt from the judgment of the Learned Justice of the Supreme Court, parties who seek to appeal to the Supreme Court on grounds of fact or mixed fact and law (essentially, grounds which are not solely grounds of law) can only appeal to the Supreme Court if such appeals fall under the category of actions listed in section 233 (b) – (f). It is noteworthy that the now defunct section 233(3) generally empowered the Supreme Court to grant leave to appeal to aggrieved persons whose appeals did not fall within the decisions that could be appealed as of right as enumerated in Section 233 (2).
Accordingly, the imports of the Third alteration Act and Justice Rhodes Vivour’s Obiter dictum are that, there can be no appeal to the Supreme Court with the leave of Court and that there can be no appeal to the Supreme Court on grounds of fact or mixed fact and law unless such questions of fact or mixed fact and law relate to any of the proceedings enumerated in section 233 (b)-(f). In expatiating the latter import, where for instance, an appeal against a death sentence affirmed by the Court of Appeal which borders on questions of fact will not be disallowed on the basis of its being on questions of fact. In the circumstance, such appeal may still lie to the Supreme Court because section 233 (2) (d) does not require the appeal to be on questions of law.
The underlying philosophy behind the above referenced amendment to the constitution may not be unconnected to the clamours for the Supreme Court of Nigeria to play the role of a policy Court more, as against being burdened by floodgates of appeals which perhaps, need not to go past the Court of Appeal. Indeed, the observation of the Supreme Court on the subject, coram Honourable Justice Bode Rhodes-Vivour is somewhat telltale of the possible position of the apex Court, should the issue of the constitutionality of appeals to the Supreme Court with leave of court, ever come up for determination.
In the interim, many may take respite in
the fact that Nigerian case law on the subject is unchanged and that
predominant reports of the decision in Shittu’s case are misjudged. There is no
ounce of doubt that a comment made in passing by the Court (an obiter dictum) does not qualify as an
authority for the proposition that rights of appeal to the Supreme Court on
grounds of facts, mixed law and facts even with leave, have been extinguished.