**Compare appeals with judicial review – questioning the decision of a lower court and see if it was correctly decided. Judicial review does not go to the merit, it only refers to legality, propriety and procedural fairness. 2) it means the appeal court is exercising appellate jurisdiction whereas the other is only exercising supervisory jurisdiction over inferior courts.  

 

S 318 of the 1999 Const. defines what a decision is. You can only appeal against the ratio of the case and not the obiter.

Meaning: an invitation to a higher court to review the decisions of a lower court to determine whether on a proper consideration of the facts pleaded before it and the applicable law the lower court came to a correct decision.

Who can appeal?

• Party to the appeal
• With leave of court, any person having an interest in the matter - the leave is necessary because he needs to show the interest he has and satisfy the court why he must appeal. You show this by motion supported by affidavit – it’s the supporting affidavit that shows the amount of interest. An interested person is someone that on his own could have prosecuted that case or the decision affects him prejudicially *and he’s not a stranger.

S.243 (a), 1999 Constitution.

 

Who is a party interested in the case?

• Not only that he has a personal interest but also that the order made prejudicially affected his interest
• Person affected or likely to be affected, aggrieved or likely to be aggrieved by the proceedings, but not a total stranger not named in the record of appeal and not having an interest therein
• AKANDE V GENERAL ELECTRIC CO
• OWENA BANK V NSE

 

RIGHT OF APPEAL

Right of appeal can be “ as of right” or “with leave”. Right of appeal is statutory there is no inherent right of appeal, so you must be able to point to a statute before you can appeal e.g. Constitution.

• ADIGUN V A.G. OYO STATE (1987)
• EKULO FARMS LTD V UBN (2006)

 

Appeal as of right means because they are a party to the matter they have the right to appeal against it, this is a constitutional right. Because on the face of the matter a person is not party to it, he needs leave of court to appeal. 

S 241(1) of the 1999 constitution talks about right to appeal as to subject matter.

• It must be a final decision (final determination of the rights of the parties) and it must be a court sitting at first instance. A final decision of court means. At this stage it doesn’t matter if it’s a question of law alone or facts alone
• Where the ground of appeal involves questions of law alone – your ground is the specific part of the judgment you’re appealing against. Error of law - When the facts are certain but the law was applied wrongly to the facts before it. Application of the law to ascertain facts, the facts are there but the court used the law wrongly. You must then supply particulars to show why you stated there was an error. Each ground must have particulars. Those particulars give flesh/ add substance to the ground of appeal. So when looking at the ground of appeal with the particular it must tell a story of why the appellant is complaining. Also it doesn’t state anything about final decision, so whether its final or interlocutory so long the ground of appeal is on law alone then the person can appeal as of right.

Grounds of appeal: Facts, Mixed Law and facts, law

Grounds of law

• Wrong standard of proof
• Stating the law on a point wrongly
• NWADIKE V IBEKWE
• OGBECHIE V ONOCHIE

Grounds of Facts:

• Findings of facts which warrant same determination either way
• Assessment of admissible evidence
• Judgement is against the weight of evidence is a ground of fact: this is an omnibus ground and it doesn’t need particulars . **see order 7 rule 3 Court of appeal rules 2016

Mixed law and Facts:

• Application of law to disputed facts
• Ground raise partly law and partly facts
• Exercise of discretion
• Metal construction Ltd v Migliore (1990)

 

• Interpretation or application of the constitution
• As to provisions of chapter IV of the constitution
• Not relevant
• Note:

1. Liberty of a person or custody of an infant
2. Injunction or appointment of a receiver

• Case of creditor or liability of a contributory

1. Decree nisi in a matrimonial cause
2. Decision in an admiralty action determining liability
3. Such other cases as may be prescribed by any law in force in Nigeria

Aqua v Ondo state sports council (1988)

 

APPEAL WITH LEAVE

When will appeal lie to the court of appeal with leave?

• Appeal by interested person – s 243(1)(a)
• Consent judgement
• Costs only
• Appeal on grounds of facts or mixed law or facts

S.241 (2) (c): Consent judgement – where parties file terms of settlement there will be a consent judgment and the parties and counsels will sign, the judge will pronounce judgement in line with what was signed. A consent judgment cannot be appealed as of right, leave of court has to be sought first. A consent judgment is a final decision. Also when it comes to costs, leave of court has to be sought.

 ABDULKAREEM V INCAR NIG. LTD (1992) SCNJ 366 (CONSENT JUDGEMENT); AYANBOYE V BALOGUN (1990) 5 NWLR 392 @ 410 (COST)

 

What are the instances when there will be no right of appeal?

• Unconditional leave to defend an action
• Decree absolute in the absence of appeal against decree nisi (rationale? – this is because status has changed, once a decree nisi become absolute the marriage has become dissolved)
• 241 (2)(a) & (b);

NATIONAL BANK V WEIDE & CO (1996) 9 – 10 SCNJ  P.147 @ 150 (UNCONDITIONAL LEAVE TO DEFEND)

NABHAN V NABHAN (1967) 1 ALL NLR 47 @ 56 (DECREE ABSOLUTE)

 

Failure to obtain leave: where a party fails to obtain leave before appealing, a condition precedent to jurisdiction has not been fulfilled – seeking leave – and the appeal will be incompetent null and void as the court will lack jurisdiction to entertain the matter.

OGBECHIE V ONOCHIE.

 

In an interlocutory decision an appeal has to be made within 14 days, whereas time for appealing a final decision is 3 months.

You still need to seek and obtain a leave of court (where necessary) within that 14 days and file the notice of appeal within the same 14 days. A party must seek and obtain the leave of court within that period stipulated for appeal, if they are outside the time stipulated, they can then apply for extension of time. 

If they are out of time to make an appeal when they have right of appeal the only prayer they would seek from court is an extension of time.

However if leave of court is needed bearing in mind that leave must be sought and obtained within the time frame and they are out of time in relation to an appeal where they need leave, they would seek the following 3 prayers:

• Extension of time to seek leave to appeal
• Leave to appeal
• Extension of time within which to appeal

 

The issue of jurisdiction is an issue of law alone, because jurisdiction is statutory based, if the court cant point to a law that gives it jurisdiction that court wouldn’t have jurisdiction.

 

If a court decides that it has jurisdiction – that decision is interlocutory, and a party has within14 days to appeal that decision, but this is a question of law so it doesn’t need leave of court. If however a court decided that it has no jurisdiction, then the court makes an order of court declining jurisdiction and strikes out the matter. When a court strikes out the matter for want of jurisdiction it is a final decision of the court, and so the party does not need leave of court (as it’s a final decision) and also the party has 3 months to appeal.

 

Order 6 rule 1 CAR 2016 – this has to be by motion on notice supported by affidavit. The implication of this is that there must be an address for service on the face of the motion. The grounds

No lower court can extend time for a higher court, so if a person is already out of time and they are in high court, they have to go to the court of appeal to apply. Their prayer would simply be “An order of court extending the time within which to appeal”

 

Extension of time to appeal

Final decisions:

- Applications to court of appeal

O.6 R 9 CAR 

 

You file a notice of appeal in the lower court, although it is headed court of appeal. And even after extension of time is granted by the court of appeal it must still be filed in the lower court attached with enrolment order extending time.

 

What to do if extension of time is granted?

Enrolled order is annexed to the Notice of appeal and filed in lower court. 

O.6 R. 9(2) CAR 2016

 

Read the case of Bowaje v Adediwura (1976) 6 S.C. 143

 

Extension of time to appeal if leave necessary

3 prayers or 3 prayers rule at the court of appeal (trinity prayers)

• Extension of time to seek leave to appeal
• Leave to appeal
• Extension of time within which to appeal

 

• Motion on notice with grounds of application on the face of the motion
• Affidavit – good and substantial reasons for delay
• Attach proposed notice of appeal with arguable grounds of appeal

 

If you’re not out of time you don’t need to seek extension of time.

 

IN THE COURT OF APPEAL

HOLDEN AT LAGOS

 

APPEAL NO:

SUIT NO:

BETWEEN:

CHIEF UWAJEH …………………………………………APPELLANT

AND

TOBI BELLO……………………………...………………RESPONDENT

 

NOTICE OF APPEAL

TAKE NOTE…..(see form 3)

 

 

Where the judgement is in a favour of a party but the party is dissatisfied with the judgement, the party can either appeal or cross –appeal because there’s another appeal.

Note that there cannot be a cross-appeal if there is no appeal already in place, same way there can’t be a counterclaim where there is no claim already in place. In cross-appeal, it will read of Notice of Cross appeal. And the party can appeal as to damages. You also use FORM 3 for cross-appeal.

 

Contents of Notice of Appeal

Form 3 (civil)

1. The suit no at the trial court and space for appeal no
2. Parties
3. Part of decision appealed against
4. Grounds of Appeal
5. Relief sought from Court of Appeal
6. Names and addresses of person directly affected by the Appeal
7. Signature by the appellant or his legal practitioner
8. 7 R. 2 car 2016

SAMPLE NOTICE OF APPEAL

Read O.9 .R1

 

FORM 10A & 10B- these are Respondents’ notice

 

Omnibus ground of appeal – “The judgment is against the weight of evidence”

 

COMMENCEMENT OF APPEALS

How is an appeal commenced?

 

When is an appeal brought? O 6, R 10 CAR 2016 – an appeal shall be deemed to be brought when the notice is filed at the registry of the court below

 

Effect of filing notice of appeal

 

An appeal shall be entered when the record has been transmitted - all that took place in the trial court and when such has been received by the appellate court O. 4 R 10, 11 CAR 2016.

 

When an appeal is brought the lower court still has jurisdiction but once it has been entered the lower court does not have jurisdiction over the matter again.

 

ENTERING OF APPEAL

Contents of record of appeal – O 8R.7 CAR 2016

Summons to settle records within 14 days – order 8 Rule 2&3 CAR 2016

Record to be compiled within 60 days after filing of notice of appeal – Order 8 R 1 CAR 2016

From the date of filing the registrar has 60 days to compile the records

Transmission of records to court of appeal within 60 days – Order 8 Rule 10

When record of appeal received in the registry of the court of appeal and an appeal number assigned ,appeal deemed to have been entered

• O 4 R 10 & 12 CAR 2016

Effect – court of appeal seised of whole proceedings

Every application to be made to the court not court below - ** OGUNREMI V DADA

 

The essence of settling records is to make sure you agree with the records and make sure there are no disputes between them.

 

Also see Order 8 rule 10

 

Brief of argument is the argument in support of your appeal. There are different types:

1. Appellants brief
2. Respondents brief
3. Reply brief – where there are new issues raised in the respondents brief the appellant will then file this brief
4. Respondent /cross-appellants brief – if there is a cross-appeal the respondent can combine the respondents brief with the brief in support of the cross appeal in the same document
5. Appellants’ Reply brief / Cross-respondents brief – if the respondent’s brief raises new issues the appellant will be required to file a reply

 

What is the relationship between:

 

BRIEF OF ARGUMENT.

What is brief of argument? See MORDI V KWENTOH (1996) 2 NWLR (PT 433) P 656 @ 660; OR 19 CAR

What should a brief of argument contain?  See Order 19 Rule 3; ARCHBOLD ENGINEER V WATER RESOURCES HYDRO TECH. AG (1988) 3 NWLR (PT 80) P1

 

Outline of a brief

• Introduction
• Background facts/ statements of facts
• Issue (s) for determination – issues in an appeal must be related to the grounds of appeal
• Argument
• Conclusion
• List of authorities
• Date and signature
• Address for service

45 days to bring brief of argument and if there is delay you apply for extension of time By way of motion on notice by affidavit and the motion on notice must show the reasons for delay and you should attach to the affidavit your brief of argument.

Order 39 Rule 1 (Lagos) says all application shall be by motion on notice

Order 19 Rule 10 – consequence of failure to file brief

 

TIME TO FILE BRIEF

Appellants brief – 45 days

Respondents brief –30 days

Reply – 14 days

 

WITHDRAWAL OF APPEAL

What is the procedure for withdrawal of appeal before hearing? – OR 11 CAR; EDOZIEN V EDOZIEN (1993)

So a party would file a notice of withdrawal

Unilateral withdrawal of appeal – O 11 R.1; Form 12

Withdrawal by consent to be duly signed – O 11 r 2; Form 13

Effect of withdrawal by consent –bar – O 11 R.3

Where parties do not consent – matter remain on list – O.11 R4

 

HEARING OF APPEAL

Purpose of oral argument – O 19 R 9(1) CAR

Where a party is absent on a date fixed for hearing of the appeal what options does the court have? See order 19 r 9(4) car

Oral argument for 15 minutes

Cross appeal, respondents notice to be argued together

What is the procedure for oral argument of appeal – order 19 r 9

 

Failure to file brief -  O19 r 10 CAR

Appellants brief – dismiss for want of prosecution

Respondent – not heard in oral argument

Reply – deemed to have concede new points or issues in respondents brief

 

PRACTICE DIRECTION 2013

Brief of arguments

• Appellant – 14 days
• Respondent – 10 days
• Reply – 5 days

Para 9

This is only related to interlocutory appeals for civil appeals.

 

Proper order to make in default of filing brief within time  - para 9 (f)