WELLI & ANOR. V. OKECHUKWU & ORS

• Pages: 830-838

WELLI & ANOR. V OKECHUKWU & ORS.

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WELLI & ANOR. V OKECHUKWU & ORS.

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HARRISON WELLI & ANOTHER

V

10 CHARLES OKECHUKWU & ORS.

APPELLANTS

RESPONDENTS

SUIT NO. SC 122/1984

SUPREME COURT OF NIGERIA

SOWEMIMO,

BELLO,

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UWAIS,

KARIBI-WHYTE,

KAWU,

14th June, 1985

C.J.N.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Appeals (Civil) - Appeal on mixed law and fact - Non-compliance with S.213(3)

of the 1979 Constitution - Effect - Nature of Appeal - Grounds of Appeal

stating law and facts - Need for leave - Joinder of issues - Whether question

of law or fact - Duty of Court.

25 ISSUES:

1.

Whether a ground of appeal which complains that the lower court failed to

consider the issues joined before it, raises an issue of law or of mixed law and

fact for the application of S.213(3) of the 1979 Constitution.

2.

Whether a ground of appeal which complains that the lower court failed to

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consider appellants submission on a survey plan which is an Exhibit on the

record the reading of which is called for to establish a point is a ground of law

or of mixed law and fact.

FACTS:

The plaintiffs instituted an action claiming a declaration of title to a piece of

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land, damages for trespass and a perpetual injunction to restrain the defendants

from committing further acts of trespass on the said land. All claims were granted

by the trial court. The defendants appealed to the Court of Appeal and their ap-

peal was dismissed. They then appealed to the Supreme Court on the ground that

the Court of Appeal did not consider "why in law the remaining issues set out by

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the appellants (in the argument of their counsel before the Court of Appeal) were

not joined or if joined why they did not have to be resolved by the learned trial

judge."

There was a notice of preliminary objection to the notice of appeal on the

ground that the grounds of appeal are of mixed law and fact and since neither the

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leave of the Court of Appeal nor the Supreme Court has been obtained in com-

pliance with S.213(3) of the 1979 Constitution (as amended by Decree No. 1 of

1984) the appeal was incompetent.

HELD:

1.

Order 8 rule 2(2) of the Supreme Court Rules 1985 enjoins that when grounds

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of appeal allege misdirection or error in law, the nature and particulars of the

misdirection or error should be clearly stated.

2.

The joinder of issues is a question of law based on pleadings which in turn are

based on allegation of facts. For a court to determine the joinder of issues,

like a plea of

res judicata

it will have to deal necessarily with or fall back on