MARK v. GOMBE & ORS

- Whether appeals involving grounds of mixed law and facts can be made to the Supreme Court _"there is the compelling need to clarify the position of this Court on the deletion of Subsection (3) of 233 of the 1999 Constitution of the Federal Republic of Nigeria (as altered) on whether this Court has the jurisdiction to entertain an appeal from the decision of the Court below on grounds of mixed law and facts. Learned senior counsel for the 1st Respondent, as seen earlier, has cited the decision in Anyanwu v. Emmanuel (supra) which was delivered by this Court on 21/03/25, wherein it was held that with the deletion of Subsection (3) of Section 233 of the Constitution, this Court no longer possesses the jurisdiction to entertain appeals on grounds of mixed law and facts from decisions of the Court below. Also, that such appeals terminate at the Court below as this Court also lacks the power to grant leave to appeal on such grounds of mixed law and facts. However, there is the decision of the Court in FRN v. Ibrahim Gidado & Ors in SC/ML/347/2025 where, after a review of the previous decisions of the Court on the issue, it was held, inter alia, that: "Subsection (2) of S. 233 provides for and lists the part of the appeal from the Court of Appeal that can lie to this Court as of right. Therefore Subsection (2) of S. 233 has not reduced the appeal from the Court of Appeal that this Court can hear and determine. It merely lists the ones that lie as of right to this Court. It is elementary that appeal as of right means the right or liberty of a party to appeal against a decision without the duty to seek the leave of Court to do so. S. 233(1) of the 1999 Constitution having given this Court the jurisdiction to hear and determine all appeals from the Court of Appeal, the necessary implication of the prescription in Subsection (2) that the ones listed shall lie as of right, is that the other appeals from the Court of Appeal to this Court must be with leave of Court.. .there is no provision in the Constitution expressly ousting or removing the jurisdiction of this Court to hear and determine appeals from the Court of Appeal on grounds of facts or mixed law and facts, which is part of the jurisdiction expressly conferred on this Court by S. 233(1) of the Constitution to hear and determine appeals from the Court of Appeal. The general principle in law is that every presumption is made in favour of a Court retaining its jurisdiction unless the relevant statute or law expressly and unequivocally ousts such jurisdiction or part of it. Courts are generally reluctant to infer an ouster of jurisdiction. See Akintokun v. LPDC (2014) LPELR-2294(SC), AGF & Ors. v. Sode& Ors. (1990) LPELR-601 (SC) and Mabera v. Obi & Anor. (1972) LPELR-1798 (SC). An ouster of this expressly conferred jurisdiction cannot be implied from the deletion of Subsection (3) of S. 233 which merely restated the position resulting from Subsections (1) and (2) that appeals not listed in Subsection (2) as those that can lie as of right, shall be brought with leave of Court". The decision was delivered on 12/12/25, and so, is later in time to the decision in Anyanwu v. Emmanuel (supra) and at variance with it. Well, faced with a similar situation of two (2) decisions by the Court being at variance with each other, this Court, in Osude v. Azodo (2017) 15 NWLR (Pt. 1588) 293 @ 322, para. B, stated that: "The decision in Lokpobiri v. Ogola (supra) was delivered after the decisions in PDP v. Sylva (supra) and Kakih v. PDP. This Court, apart from correcting the defect in the decisions of the lower Court, has the onerous responsibility of correcting itself, since it is the apex Court and there is no other Court to which its errors can be submitted for correction. It follows therefore where its later decisions are at variance with its previous decisions, it means that the previous decisions have been overruled to the extent of the variation". This position was affirmed and restated recently by the Court in SCC. Nig. Ltd. v. Joseph (2026) 1 NWLR (Pt. 2025) 227 @ 278 paras. D-E and Nigerian Airforce v. Chia (2026) 2 NWLR (Pt. 2028) 369 @ 407 paras. A-C. In the above premises, the position of the law, as stated in FRN v. Gidado (supra), and restated in later decisions that inspite of the deletion of subsection (3) of Section 233 of the Constitution (as altered), the Court retains the jurisdiction vested in it by the provisions of 233(1) to hear all appeals from the decisions of the Court below other than as of right, where the grounds involve questions of mixed law and facts, with the prior leave of Court properly obtained by an Appellant. In other words, the Court retains the requisite jurisdiction to entertain and adjudicate over an appeal from the decisions of the Court below where grounds involve questions of mixed law and facts, with prior leave of the Court obtained before filing the Notice of such an appeal, in spite of the deletion of subsection (3) of Section 233." Per MOHAMMED LAWAL GARBA, JSC (Pp 19 - 24 Paras E - A) Back UBA v. GOV OF BORNO STATE & ORS (2025) LPELR-82514(CA) 30% Precedence Rating as at Aug 17, 2026 Case Status No Status available Principle Principle APPEAL - APPEAL TO THE SUPREME COURT - Whether appeals involving grounds of mixed law and facts can be made to the Supreme Court "The constitutional provision on the appellate jurisdiction of the Supreme Court is Section 233 of the 1999 Constitution, as amended. By the Constitution of Federal Republic of Nigeria (Second Alteration) Act, 2010, Section 233 (3) of the 1999 Constitution which stipulates for appeals to lie to the Supreme Court with leave of the Court of Appeal or the Supreme Court was removed from the Constitution. On the extant state of the constitutional provision, an appeal to the Supreme Court from the decision of the Court of Appeal shall only lie as of right as stipulated in Section 233 (2) of the 1999 Constitution, as amended. How then can the Respondents' application for leave to appeal on grounds of mixed law and facts spawn a valid appeal?"_ Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 24 - 25 Paras E - B)