Appeals to Supreme Court on Mixed Law & Facts Still Alive -By O. G. Ogbom, Esq.
Recall that there was a widely held impression or interpretation that the Supreme Court pursuant to the case of Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195; is now allowed by virtue of section 233 of the third alteration to the 1999 constitution to entertain appeal from the Court of Appeal as of right and has been barred from entertaining application seeking leave to appeal on facts or of mixed law and facts.
The case of Shittu was read to mean that 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. And that the importance 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. Shittu’s case (supra) was interpreted to mean that, the Constitution of the Federal Republic of Nigeria (as amended) does not recognise appeals with leave to the Supreme Court.
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.
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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.’’
Surprisingly, the above dictum which gave the impression generally held that the Supreme Court has jettisoned appeal with leave has been referred to an orbiter dictum of Rhodes-Vivour, JSC in Shittu v. Peugeot Automobile (2018) 15 NWLR (Pt. 1642) 195 at 209-210, which has no binding force. This was according to the Supreme Court in Friday Amadi & Anor. v. Elder Wopara & Ors. (2022) 1 NWLR (Pt. 1811) 359 at 379-372, H-F.
For clarity sake, obiter dictum has been defined as observation or comment by the court which, though made in pronouncing the resolution, is not necessarily involved in the resolution or essential to it as was held in UTC Nig. Ltd Vs Pamotei (1989) 2 NWLR (Pt 103) 244, and Ebenge Vs Onyenge (2000) 2 NWLR (Pt 643) 62.
In University Press Ltd Vs I. K. Martins (Nig) Ltd (2000) 4 NWLR (Pt 654) 584, Dalhatu Vs Saraki (2003) 15 NWLR (Pt 843) 310,
The courts were unanimous that it is the ratio decedendi of the decision of a court that has a binding effect; the obiter dictum has not binding effect.
The decision in Amadi v Wopara (Supra), has further strengthened the position of the Supreme Court in the case of Buhari & Ors v. Obasanjo & Ors. (2003) LPELR 813 (SC) 66 paras B-C; where the Supreme Court admonished the lower Court not to treat the obiter of the Supreme Court with impunity. According to Edozie JSC thus: “This does not mean that an obiter has no strength or teeth, indeed no lower Court may treat an obiter of the Supreme Court with careless abandon or disrespect but the Supreme Court could ignore it if it does not firm up or strengthen the real issue in controversy.”(enphasis mine).
Flowing from the above, the Supreme Court
In Amadi v Wopara (Supra) held that the observation made by Rhodes-Vivour, JSC, in the case of Shittu v. Peugeot Automobile Nigeria Ltd. (2018) 15 NWLR (Pt. 1642) 195 at 209-210, that the Supreme Court lacks the power to entertain application seeking leave to appeal on grounds of facts or of mixed law and facts, was an obiter dictum. That it was not part of the arguments before the court. The court went further to hold that he made the observation after he upheld the objection raised by the respondent and struck out the grounds of appeal because “they are caught by section 233 (3) of the Constitution”. In effect, his comment made in passing is not binding on the Supreme Court.
Therefore, Shittu v. P.A.N. Ltd. is not an authority that the Supreme Court has no jurisdiction to entertain and determine an application seeking leave to appeal on grounds of facts or of mixed law and facts. Besides, after the decision in Shittu v. P.A.N. Ltd., the Supreme Court has continued to entertain and grant or refuse applications for leave to appeal on grounds of facts or mixed law and facts, as the circumstances warranted. In essence, leave to appeal on mixed law and fact is not unconstitutional. The dictum of Rhodes-Vivour, JSC in Shittu’s case according to Amadi v Wopara (NWLR (PT. 1811), was hinged on an unauthenticated copy of the amended constitution.
The decision has re-emphasized the authority of the Supreme Court to ignore obiter dictum when it does not firm up or strengthen the real issue in controversy and also shows the ability of the Apex court to self-correct, which is good, being the last court in the judicial hierarchy in Nigeria.
O.G. Ogbom, Esq is a Port Harcourt based lawyer, a partner at Law Freight Attorneys.
He can be reached via email@example.com.