LEGAL PRINCIPLE: APPELLATE PRACTICE – Grounds of Appeal – Incompetence of Grounds of Mixed Law and Fact Without Leave

This principle enforces the constitutional limitation on appeals to the Supreme Court established in Section 213(3) (now section 233 of the 1999 Constitution). The Constitution distinguishes between: (1) Appeals as of right on questions of law—no leave required; (2) Appeals on questions of fact or mixed law and fact—leave required. The requirement for leave on factual and mixed questions reflects the Supreme Court’s primary role as a court of law, not a court for re-trying facts. “Mixed law and fact” questions involve application of legal principles to specific facts: whether evidence supports particular findings, whether facts establish elements of an offense or cause of action, whether conduct constitutes negligence, etc. These require evaluating both legal standards and factual circumstances. The leave requirement serves as a filter ensuring the Supreme Court hears only cases raising important legal issues or where appellate review is otherwise warranted. Courts from which appeals emanate (typically the Court of Appeal) or the Supreme Court itself may grant leave, providing two opportunities. To comply, appellants must: (1) Identify which grounds raise mixed law and fact issues; (2) Apply for leave to appeal on those grounds either from the lower court or the Supreme Court; (3) Obtain leave before proceeding on those grounds. Failure to obtain leave renders the grounds “incompetent”—not properly before the court. The remedy is striking out those grounds. If only incompetent grounds were raised, the entire appeal fails. If some grounds are competent (pure law questions) and others not, only the incompetent grounds are struck. The principle requires careful analysis of grounds to distinguish: (1) Pure questions of law (interpretation of statutes, legal principles, procedural rules)—no leave needed; (2) Pure questions of fact (credibility, weight of evidence where no legal principle is involved)—leave needed; (3) Mixed questions (application of law to facts)—leave needed. The distinction is sometimes subtle, and grounds should be carefully drafted to focus on legal issues to avoid the leave requirement where possible.