APPEAL – GROUND(S) OF APPEAL – How to determine whether a ground of appeal is one of law, facts or mixed law and facts


“The fact that a ground of appeal is christened “error in law” does not make it a ground of law. Having critiqued the Appellants’ 3 grounds of appeal, I am of the informed view that ground 2 is a ground of mixed law and fact. In SHANU V. AFRIBANK (2000) 13 NWLR (PT. 684) 392, it was held that what is required in distinguishing a ground of law and mixed law and fact is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case it would amount to question of mixed law and fact. In the present appeal, the Respondent’s Counsel questioned the oral evidence of the Appellants’ witnesses to the content of Exhibit D2 (a document/Judgment) already admitted in evidence by the trial Court. This is obviously an evidence or fact disputed by both the Appellants and the Respondent on the admissibility of Exhibit D2. Thus, it is a ground of mixed law and fact. I therefore borrow a leaf from the simplified distinction drawn by my learned brother between a ground of law and that of mixed law and fact. When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence, grounds of appeal challenging such conclusions are grounds of mixed law and fact. Where the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion. See Per CHIMA CENTUS NWEZE, JSC, in ROYAL HOMES LIMITED & ANOR V. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2021) LPELR-53382(SC) (PP. 10-11, PARA. C-C).” Per UWANI MUSA ABBA AJI, JSC in OHAEGBU & ORS v. REGD TRUSTEES OF THE CAPUCHIN FRIARS MINOR NIGERIA (2022-LCER-46522-SC) (Pp 3 – 5; Paras F – D)

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