This short matter arose by way of a preliminary objection raised by learned Senior Advocate appearing for the plaintiffs/respondents in the main appeal. The objection, brought under Order 2, Rule 9 of the Supreme Court Rules,1985 was in these terms
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"TAKE NOTICE that the Respondents intend to raise a preliminary objection to the appeal. The Grounds of objection are as follows
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1.
The Notice and Grounds of Appeal filed on 28/2/86 p.179 involved questions of fact or mixed law and fact.
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2.
No leave of Lower Court or of the Supreme Court was sought for and obtained prior to the filing of the Notice and Grounds of Appeal on issues of mixed law and fact in accordance with the provisions of Section 213 sub-Section 3 of the Constitution of the Federal Republic of NIGERIA.
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3.
Where no such leave was obtained prior to the filing of the Notice and Grounds of Appeal involving questions of fact or mixed law the said Notice and Grounds of Appeal are incompetent.
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4.
The said Notice and Grounds of Appeal which entirely and completely involve questions of fact or mixed law and fact are null and void.
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5.
The Order of court on 25/3/86 granting leave to appeal and deeming the Notice and Grounds of Appeal as being properly filed on 28/2/86 could not and did not have the effect of giving life to any incompetent Notice and Grounds of Appeal. Ex nihili nihil fit, Court could not possibly build up something on nothing. Leave of Court was a condition precedent to the filing of the Notice of Appeal.
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6.
After leave was obtained on 25/3/86 no new Notice and Grounds of Appeal was filed despite the fact that the Appellants were within time to do so.
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7.
The conditions of Appeal given are incompetent since the Notice and Grounds of Appeal upon which those conditions are given are incompetent.
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8.
The said Notice and Grounds of Appeal which entirely and completely involve questions of fact or mixed law and fact are null and void.
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9.
The Court lacks jurisdiction to entertain the appeal".
This preliminary objection was supported by an affidavit sworn to by AGWU AGNA URO which very succinctly set out the events in the Court of Appeal which led to this object. Paragraphs 4,5,8,9, 11, 12, 13, 15 and 16 particularly contain the core of the objection. Those paragraphs were in these terms
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"4
That after the judgment of the Court of Appeal in this case, the Appellants on 28th February, 1986 filed their Notice and Grounds of Appeal..
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5
That the Deputy Chief Registrar of the Court of Appeal by letter Ref. FCA/E/81/81 and dated 4th March, 1986 forwarded seven copies of the Notice of Appeal to the Chief Registrar, Supreme Court, copying and enclosing a copy of the Notice of Appeal to our Counsel.
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8
That the Notice and Grounds of Appeal filed by the Appellants involved questions of fact and mixed law and fact.
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9
That prior to filing the Notice and Grounds of Appeal the Appellants neither sought nor obtained leave either of the lower court or the Supreme Court to appeal on issues of purely fact or mixed law and fact.
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11
That the conditions of Appeal given and the perfection of such conditions were based on the Notice and Grounds of Appeal filed on 28/2/86, which Notice was filed without leave of either the Court of Appeal of the Supreme Court.
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12
That on 25th March, 1986 the Appellants realising that they required leave of the Lower Court to appeal to the Supreme Court on issues of fact or mixed law and fact then applied to the Court of Appeal for leave.
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13
Counsel for the Appellants in paragraph 4 of the Affidavit in support of the application as follows
"That I am aware that the Grounds of Appeal are not only one grounds of law alone and therefore the defendants/applicants require the leave of this Honourable Court in order to appeal."
During the trial the defence counsel addressed the court and raised the issue of lack of jurisdiction in the trial court in that the case is alleged to involve the issue of who out of the plaintiff and the defendant had titled to the house No. 3 Osagie Street, Off St. Saviour Road, Off Sakponba Road, Benin City a place that is said to be clearly within the radius of 16km of Ring Road, Benin City and therefore an urban area under the Urban Area Designation edict. Defence counsel further submitted that the proper forum for the determination of the case should have been the High Court which has exclusive jurisdiction over land matters in urban area.
The trial Area Customary Court overruled the objection raised and went on to hear the case and delivered judgement in favour of the plaintiff.
Dissatisfied, the defendant appealed to the Edo State High Court, essentially on the issue of jurisdiction.
The court at the conclusion of arguments, held that the Oredo Are Customary Court had jurisdiction in the matter. The defendant being dissatisfied with the judgment of the appellate High Court has further appealed against the decision of the lower court to this court.
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15
That the Court of Appeal on 25th March, 1986 made an order granting Appellant's leave to appeal. The said order is attached herewith and marked Exhibit D.
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16
That the Court in Exhibit D deemed the Notice and Grounds of Appeal filed by the Appellants on 28/2/86 without leave as having been properly filed".
I should add that the Defendant/Appellants who are Respondents to this objection filed a Counter Affidavit but I shall come to that later.
The order made by the Court of Appeal dated 25th March, 1986 and which is really at the core of this objection.
