LEGAL PRINCIPLE: APPELLATE PRACTICE — Grounds of Appeal — Distinction between Law and Fact — Test for Determination
PRINCIPLE STATEMENT
The test is to examine whether the grounds reveal a misunderstanding or misapplication of the law to facts already proved or admitted (question of law), or require questioning the evaluation of facts before applying the law (mixed law and fact).
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in P.N. Udoh Trading Co. Ltd v. Abere & Anor (2001) NLC-131997(SC) at p. 31; Paras D–E.
"There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required 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."
EXPLANATION / SCOPE
The test for distinguishing questions of law from mixed law and fact is: if the ground challenges the lower court’s understanding or application of the law to facts already proved or admitted, it is a question of law. If it requires re-evaluating the facts before applying the law, it is mixed law and fact. The distinction determines whether leave to appeal is required. Questions of law alone are appealable as of right; mixed and factual grounds require leave. The court examines the ground and particulars together. The test is applied flexibly, recognising the thin line between categories. The label given by counsel is not determinative.
