Oct 30, 2019

Does the Supreme Court still have the Power to Hear Appeal on Grounds of Mixed Law and Facts? By O.G. Ogbom, esq.


The Supreme Court, just like every other courts in the land, is a creation of the constitution. It is vested with both original and appellate jurisdictions. It is the only court clothed with authority and jurisdiction to entertain appeals from the Court of Appeal. This is provided for in section 233(1) of the Constitution which confers exclusive jurisdiction on the Supreme Court to hear and determine appeals from the Court of Appeal.

It has been notoriously settled that jurisdiction is the life of every form of adjudication, and without it, no court or tribunal can proceed to competently determine a suit or matter brought before it. It is a threshold issue that can be raised by any party, or even the court at any stage of the proceedings, even for the first time on appeal. That is what the Supreme Court said in Elabanjo & Anor v Dawodu [2006] 15 NWLR (PT 1001) 76; (2006) LPELR – 1106 (SC) where MOHAMMED, JSC held:
"Jurisdiction is the very basis on which any tribunal tries a case. A trial without jurisdiction is a nullity …the importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this court; afortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save
time and costs and to avoid a trial in nullity"

It is also settled law that any proceedings conducted without jurisdiction no matter how well conducted and no matter how sound the decision or orders made therein is a nullity. See the case of –MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341.

It is important to mention that before the enactment of the 3rd Alteration Act of 2010, section 233 (2) of the Constitution of the Federal Republic of Nigeria, (as 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. 

Flowing from the above stated provisions, where an appeal is lodged against the finding of facts by the lower court (the Court of Appeal, in view) such appeal is said to be based on grounds of fact. Where the question to be determined by the appellate court is a question as to what the law is, it will certainly amount to a ground of law. It might seem difficult or impossible to determine or misapprehend. This is usually so when the questions to be determined by the Appellate court are a mixture of facts and law. In essence, it is called a ground (s) of mixed fact and law.

This has always been the position of law as regards appeals to the Supreme Court before the decision in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195; made pursuant to the third Alterations to the Constitution of the Federal Republic of Nigeria 1999. By this case, It appears that 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. This presupposes that appeals with leave of court to the Supreme court has deeply changed or obliterated.

Under the said 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. By Shittu's case (supra) 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, section 233 (2) (a) – (f) provides as follows:

1. 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;

2. 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;

3.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;

4. 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;

5.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

6. 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.

And such other cases as may be prescribed by an Act of the National Assembly.

From the above, it is clear that by the third alteration of the 1999 Constitution of the Federal Republic of Nigeria, the leeway, by virtue of Section 233(3) to an aggrieved party whose grounds of appeal involve facts or mixed law and facts, is closed.

In upholding the preliminary objection of learned Respondent counsel (O. Tolani Esq.,) to the competence of the appeal in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195, at pages 209-210 of the report : Honorable Justice Bode Rhodes- Vivour stated as follows:

"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 the Constitution. That is to say, the Supreme Court now can only hear appeals where the ground of appeal involves questions of law . See section. 233(1) & (2) of the Constitution. The Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts. Appeals on grounds of mixed law and facts ends at the Court of Appeal .” 

Again, it continued:

…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.’’

Flowing from the above quoted position of the Supreme court, can one safely say that what was made was just a mere observation as indicated? Can it be said that it was made only in passing as an aside that was not necessary for the determination of the real issue the court was called to address and decide? Can it be referred to as an obiter dictum? 

The Shitu's case has been used to repeatedly represent or qualify for the proposition that right of appeal to the Supreme Court on grounds of facts, mixed law and facts or challenging exercise of discretion of the courts below no longer exists even with leave. This is so, even though the Supreme court has not been called upon as it where, to decisively interpret section 233 cfrn, of the Third Alteration Act, by empaneling a full court of 7 Justices with an invitation to amicus to assist their lordships if need be. It is dangerous to continue to leave the Shittu's case with different interpretations as currently being witnessed. The intendment of section 233 must not be allowed for argument or doubt. There is also need not to arm-twist the spirit and intention of the Constitution. By excluding section 233 (3) of the constitution by the draft man, the conclusion that leaves no one in doubt, is that the Supreme is stripped the powers to hear appeals on grounds of facts, mixed law and facts. 


O.G. Ogbom, Esq., LL.B,(Hons) BL, LL.M., is a Port Harcourt based legal practitioner.


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