How to Distinguish Grounds of Law trom Grounds of Facts and Mixed Law and Fact

Emem Ekpenyong

I take for granted that we are familiar with Section 233(2) and 241 (1) of the 1999 Constitution (as amended) which provides for when an appeal can lie as of right, to the Supreme Court and Court of Appeal respectively. Where a ground of appeal is an hybrid of  facts and law, leave of court is required by virtue of section 242 (1) of the Constitution. Where leave is not sought and obtained, the appeal would be incompetent and consequently struck out. See ABIDOYE & ORS v ALAWODE & ORS (2001) LPELR – 35 (SC). A ground of law is appellable without leave. BROSSETTE MANUFACTURING NIG LTD v M/S OLA ILEMOBOLA LTD & ORS (2007) LPELR – 809 (SC). However, it is usually difficult to distinguish a ground of law from a ground of fact. In KANO TEXTILE PRINTER LTD v GLOEDE AND HOFF (NIG) LTD (2005) LPELR- 1660 (SC), the court acknowledged that the line between the two is quite slim.

How then can one distinguish an issue of law from an issue of facts or a blend of both? In M.D.P.D.T v OKONKWO (2001) LPELR – 1856 (SC), the court held that the determination of the nature of a ground of appeal is not from the ground of appeal, but the question it raises. Whether a ground of appeal involves questions of law or an hybrid of law and facts does not lie in its cognomen, nor its designation. It is rather the essence of the ground, that determines what any particular ground involves. See also the case of ABIDOYE & ORS v ALAWODE & ORS (supra). It does not matter whether the appellant called the grounds of appeal that of law, facts or an hybrid of both, what the court ought to do is to read the ground of appeal together with its particulars, if any, as a whole. See STATE v BASSEY & ORS (1994) LPELR – 24852 (CA).

In ORAKOSIM & ORS v MENKITI (2001) LPELR – 2752 (SC), the court held that the body of the ground of appeal is not to be considered in isolation of its particulars. The court is expected to focus on the question raised rather than the form of the ground of appeal. It is to identify the real issue or complaint before taking a stand. See also BRIGGS v C.L.O.R.S.N & ORS (2005) LPELR – 805 (SC). How do lawyers navigate this slippery issue, so that their appeals will not suffer the indignity of being trashed, for being incompetent? I will attempt a classification.

QUESTIONS OF MIXED LAW AND FACT

• Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact. See DAIRO v. UNION BANK & ANOR (2007) LPELR-913(SC)
• A ground of appeal which questions the evaluation of facts before the application of law,  is a ground of mixed law and fact. See FABBY & ORS v. FODE DRILLING (NIG) LTD (2025) LPELR-81161(SC).

• When the facts are disputed as between parties, the conclusion which follows from the application of the law to such disputed facts are characterized as those of mixed law and facts. See AJAYI & ANOR v OMOROGBE (1993) LPELR – 290 (SC)

ISSUES OF FACTS ONLY

• A ground which raises a question of pure fact is a ground of fact. See FABBY & ORS v. FODE DRILLING (NIG) LTD (supra)

• Where evaluation of evidence tendered at the   trial is exclusively questioned, it is a ground of fact simpliciter. See DAIRO v. UNION BANK & ANOR (supra) 

• Where admissible evidence has been led, the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO  (2008) LPELR-825(SC)

• Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if siesed of the issue, that conclusion is not an error in law. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• Where a trial Court fails to apply the facts which it has found correctly to the circumstance of the case before it, and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact. However, when the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• A ground of appeal which complains that the decision of the trial Court is against the  weight of evidence or contains unresolved contradictions in the evidence of witnesses, is purely a ground of fact. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• A ground of appeal which complains of the lower court’s exercise of its discretion necessarily involves the appellate court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised, so it is a question of facts. See ANUKAM v ANUKAM (2008) LPELR – 500 (SC)

• A ground of appeal which complains of the lower court’s evaluation of evidence and alleges sufficiency or insufficiency of evidence is one of facts or at best a mixed grill of law and facts.  See ANUKAM v ANUKAM (supra)

QUESTIONS OF LAW ONLY

• The issue of jurisdiction can be raised and argued with or without leave at the appellate court. See CHIKWE v CHIEF REGISTRAR (FHC) & ORS (2024) LPELR – 62976 (SC)

• If the trial court took into account some wrong criteria in reaching its conclusion or applied wrong standard of proof, or if although it applied the correct criteria, gave wrong weight to one or more of the relevant factors, it is a question of law. See DAPIANLONG & ORS v DARIYE & ANOR (2007) LPELR – 928 (SC)

• Where a lower court states the law on a point wrongly, it commits an error in law. See DAPIANLONG & ORS v DARIYE & ANOR (supra)

• If the lower court erred in its conclusion (that is, in applying the law to the facts), in a case where this process requires the skill of a trained lawyer, it is an error in law. See FABBY & ORS v. FODE DRILLING (NIG) LTD (supra)

• Where a ground deals merely with a matter of inference, even if it is an inference of facts, a ground framed on it is a ground of law, provided it is limited to admitted or proved and accepted facts. It has been established that interference to be drawn from a set of proved or undisputed fact, as distinct from primary facts, are matters upon which an appellate court is as competent as the trial court. See YARO v AREWA CONSTRUCTION LTD & ORS (2007) LPELR – 3516 (SC). In DAIRO v. UNION BANK & ANOR (supra), the court held that it is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. In  ANUKAM v ANUKAM (supra), the court held that where a ground of appeal does not complain about the evaluation of evidence, but only about inference drawn from established or admitted facts, it is a question of law.

• Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, it is a ground of law on the premises that in a jury trial, there would have been no evidence to go to the jury. See YARO v AREWA CONSTRUCTION LTD & ORS (supra)

• Where the ground of appeal complains that the trial court had failed to fulfill an obligation cast upon it by law, in the process of coming to a decision in the case, such a ground involves question of law. That is, whether or not there is such an obligation or whether what the trial court did amounted to an infraction of such obligation, provided that all the facts needed are there on the record and are beyond controversy. See CHIEF OF AIR STAFF & ORS v IYEN (2005) LPELR – 3167 (SC).

• Where the facts are not disputed, challenge of the conclusion is a question of law. See AJAYI & ANOR v OMOROGBE (supra)

• Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra) 

• Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra) 

• When the ground can be dealt with, without resort to determination of any question of facts or when determination of the ground is not dependent on any fact to be proved. See M.D.P.D.T v OKONKWO (supra)

• Where a trial Court fails to apply the facts which it has found correctly to the circumstance of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• Where a trial Court fails to apply the facts which it has found correctly to the circumstance of the case before it, and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact. However, when the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law. Where the appeal Court interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact. See CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• Where the lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law. CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra) 

• Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of the law. This is a ground of law. CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v. EKPO (supra)

• Where the ground of complains of the lower court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore a question of law alone. See ANUKAM v ANUKAM (supra)

• A ground of appeal involves a question of law alone where in answering the question raised by the ground of appeal, the appellate court can determine the issue on the admitted and uncontroversial facts, without going beyond a direct application of legal principles. See CHIEF OF AIR STAFF & ORS v IYEN (supra)

Where it is contended by the other party that the principle of law on which the complaint  is based, is non-existent or misconceived, that goes to the merit of the complaint and not to the threshold question as to whether or not the question involved is one of law. The question of the merit of a ground of appeal is to be distinguished from one relating to the nature of question involved in the appeal.  See CHIEF OF AIR STAFF & ORS v IYEN (supra)

The list is inexhaustible. Feel free to enrich the list with the ones you know.