MIGLIORE & ORS V. METAL CONSTRUCTION (WEST AFRICA) LIMITED

• Pages: 200-218

MIGLIORE & ORS. V. METAL CONSTRUCTION (WEST AFRICA) LIMITED 200

about his position. In my opinion, the appellant's conduct in the circumstances I

have outlined above cannot be anything but one calculated to bring the authority

and administration of the law into disrespect.

It has been conceded in the appellant's reply brief that he is no longer pressing

5



his point as about the procedure for the committal. I must say that this being in the

nature of a mandatory order, I could not see how any valid objection could have

been raised against it, even on the principle adumbrated in

Doherty v. Doherty

(1964)

L.L.R. 226. That case sought to draw a distinction between orders of mandatory

injunction, which could be enforced under our Sheriffs and Civil Process laws, and

I0



negative or restrictive injunctions, which could only be enforced under English

procedure, by implication. Fortunately that decision which ruled the legal waves of

this country for a quarter of a century has now been overruled in the recent case of

SC.159/1987,

Osayande Uhunwagho v. El. Okojie & Anor

of the 8th day of December,

1989 (unreported), as not being justifiable under the definition of "judgment or order"

15



in the Act.

For the above reasons, the appeal fails, and is dismissed by me with N.500.00

costs against the appellant.

MIGLIORE & ORS. V. METAL CONSTRUCTION (WEST

AFRICA) LIMITED

D.A. MIGLIORE & ORS.



DEFENDANTS

V

METAL CONSTRUCTION

(WEST AFRICA) LTD.



PLAINTIFF/APPELLANT/RESPONDENT

IN RE: MISS C. OGUNDARE



APPLICANT

SUIT NO. SC. 251/1985

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.0

ESO,



J.S.0

NNAMANI,



J.S.0

KARI BI-WHYTE,



J.S.0

WALT,



J.S.C.

2nd February, 1990.

Practice and Procedure - Appeals -As of right - when available - section 213 (2) constitution

of the Federation 1979 - Grounds of Appeals - Meaning of - whether of law - Or whether

of fact - Or mixed law and fact - Constituent elements - Law - Need to state particulars

- Order 8 rule 2 (2) Supreme Court rules 1985 - Exercise of court's discretion in setting

aside decision - Complaint against exercise of such discretion - Whether question of law

or mixed law and fact.

Court - Exercise of discretion - Applicable principle - Setting aside decision - What it involves

- Application to set aside - delay - Effect.

Constitutional Law - Right of Appeal - Appeal as of right and appeal with leave - S.

213(2)(3) Constitution of the Federation 1979.

Words and Phrases - Grounds of Appeal - Question of law or fact or mixed law or fact -

meaning of

ISSUES:

1. When does appeal lie as of right to the Supreme Court?

.?5

30

15

0

5

201



NIGERIAN SUPREME COURT CASES

[1990] 1 N.S.C.C.

2.

When is leave of court necessary for an appeal to the Supreme Court?

3.

What is the meaning of "Ground of Appeal"?

4.

What is a Question Law?

5.

What is a Question of Facts?

6.

What does exercise of discretion involve and what principles govern this exercise 5

by a court?

7.

Does an appeal against the exercise of a court discretion in setting aside its

decision amount to question of law or mixed law and fact?

8.

Whether application to set aside court order should be rejected by reason of

delay.



10

9.

What is the effect of christening a ground of appeal, ground of law when the

particulars disclose questions of fact?

10.

What is the difference between appeal on matters of fact and appeal on matters

of law?

FACTS:



15

The appellant who was the plaintiff in the Federal High Court issued out an

originating summons against the defendants dated 23rd December 1983 supported

by affidavit. D.A. Migliore, C. Mangili, and T. Okeowo who were the defendants in that

court were not resident in Nigeria. Service of this court process was purportedly

effected on Kehinde Sofola and company, solicitors who has previously acted for 20

the defendants in another matter. After several appearances, kehinde Sofola S.A.N.

brought an application for the service of the summons on his chambers on behalf

of the defendants to be set aside. The Federal High Court granted this application

and held that service on the chambers of Kehinde Sofola and company was not

proper service on the defendants.



25

On appeal by plaintiff/appellant to the court of Appeal, the Court ordered on the

17th April 1985 that the papers be now served on Miss Ogundare of Messrs Kehinde

Sofola and Company on behalf of the defendants/respondents Miss Ogundare of

counsel promptly brought an application supported by affidavit for this order to be

quashed. This application was granted by the court of Appeal and the order of 17th 30

April 1985 was set aside.

The present appellant not satisfied with this ruling appealed to the Supreme Court

contending that the court of Appeal erred in law in setting aside the order made on

17th April, 1985. The respondents however filed a preliminary objection that the

appeal was incompetent and should be struck out on the ground that the subject 35

matter of the appeal was an interlocutory order and was not based on law alone.

Hence the appellant needed the leaves of the Court of Appeal to appeal against the

said order.

HELD:

1.

A party can only appeal to the Supreme Court as of right whether the decision is 40

interlocutory of final, if the ground of appeal involves questions of law alone.

Since the ground of appeal in the present case is at best a question of mixed law

and fact. The appellant ought to have secured the leave of the Court of Appeal

before bringing this Appeal.

2.

In appeals to the Supreme Court, leave to appeal must be obtained by a party 45

from the court of Appeal or the Supreme Court before an appeal can lie from the

decision of the court of Appeal where the ground of appeal involves questions of

fact or mixed law and fact.

The ground of appeal in this case was a question of mixed law and fact, and since

the appellant did not procure the leave of either the court of Appeal or Supreme 50

Court, the appeal was held incompetent.

3.

A ground of appeal consists of the error of law or fact alleged by an appellant as

the defect in the judgment appellant as the defect in the judgment appealed

against and relied upon to set it aside.

4.

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.