Synopsis of Appeal in Nigeria - ODEWALE Qowiyyulahi.

SYNOPSIS OF AN APPEAL IN NIGERIA.

A litigant in Nigeria of this century has the right to contend any position he perceived unfavorable to him, from the Court of the first instance to Court of Appeal and Supreme Court as the final court which will wind up the matter finally and believe to be infallible. See Adegoke Motors Ltd. v. Adesanya [1989] 13 NWLR (Pt.109) 250 at page 275A.

 On the philosophy of appeal opportunity lies the establishment of Court of Appeal with the exclusive jurisdiction to hear an appeal from all courts of records such as Federal  High Court, High Court of FCT and of a State, Customary Court of Appeal of the FCT and of a State, Shariah Court of Appeal of the FCT and of a State, Court Martial, etc.

Appealing a judgment of a court of law in terms entails inviting a higher court than that court adjudicated and gave a particular decision or judgment to review such decision or judgment. The process involves determining whether the lower court arrived at a correct decision after evaluating the evidence put before it and the applicable laws. By this writing, we aim to concisely simplify to comprehend the concept of appeal and its procedure in Nigerian courts. 

  The term 'appeal' in Order 1. Rule 5, Court of Appeal Rules is defined as the filing of a notice of appeal. This definition is not only incomprehensive but relates to interim orders pending appeal much more than appeal itself. As put by a writer, an appeal involves proceeding from the judgment of a trial court to an appellate court or from one appellate court to another appellate court. The primary significance of appeal is affording a party who is dissatisfied with the court's decision an opportunity to contend such to the final ground at the Supreme Court. Hence as put above, the appeal serves as a check on what has been done by some judges in a lower court.

  In Nigeria, the appeal is constitutionally provided by the Constitution of Federal Republic of Nigeria 1999, Supreme Court Act, Court of Appeal Act, and their Rules, High Court Rules, and Rules of various courts.

 Moreover, it's pertinent as a  preliminary matter to highlight the categories of persons who can appeal a court decision. Section 243(1)(a) of the 1999 constitution affords two types of persons the right to file an appeal which is: a party to a proceeding whose name appears on the process and any non-party interested in the matter with the leave of the trial Court or Court of Appeal. See Ifebuzor v Ejezie (1998) 8 NWLR pt .560 p. 148. And for the non-party, he must show that he has an interest in the matter and that the decision made affects his interest. See Owena Bank v N.S.E (1997) 8 N.W.L.R. pt.515, p.1. It should also be noted that a party who files an appeal is called an Appellant, and the party it is filed against is called the Respondent.

   The instances of appeal to the Court of Appeal can either be of right or with the leave of court. Thus, rights of appeal can be treated under two heads as :

 (i) Appeal as of right and 

 (ii) Appeal with leave.

Appeal as of Right is an inherent right a litigant is conferred by the constitution, in which he needs not to seek the permission of the court but at his discretion if he so wishes to appeal a judgment. This is covered by Section 241(1) of the 1999 constitution as circumstances thus : 

(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; 

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings; 

(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; 

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution 

has been, is being or is likely to be, contravened in relation to 

any person; 

(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; 

(f) decisions made or given by the Federal High Court or a High Court – 

(i) where the liberty of a person or the custody of an infant is 

concerned,

(ii) where an injunction or the appointment of a receiver is 

granted or refused,

(iii) in the case of a decision determining the case of a 

a creditor or the liability of a contributory or other officers

under any enactment relating to companies in respect of 

misfeasance or otherwise, 

(iv) in the case of a decree nisi in a matrimonial cause or a 

a decision in an admiralty action determining liability, and 

(v) in such other cases as may be prescribed by any law in force 

in Nigeria. 

 With the above, the subject of an appeal will be an arbiter of it been an Appeal as of right or not, so an appeal against the final decision of a court, appeal on the ground involving the question of law alone, appeal as to the interpretation of the constitution, appeal as to whether any provision of Chapter 4 of 1999 constitution has been/is/likely to be contravened, appeal as to the imposition of death penalty by court, appeal on the ground of liberty of a person or custody of an infant, on the question as to injunction or appointment of a receiver, appeal on determining a creditor or liability of a contributory or other officer under company enactments, wrong arises from decree nisi or admiralty action concerning liability are instances of Appeal as of right.

   In Oguntimehin v Tokunbo 1(1957), as to what amount to the final decision of a court in determining whether an appeal should be of a right, the Federal Supreme Court held that a final decision disposes of the rights of the parties. I.e., one which brings an action to an end.

  Appeal with leave, as the name implies, is the one that requires the permission of the court for its filing. In Akande v General Electric Co.(1979) 3 L.R.N 187, the court held that a person not named in the record as a party must obtain leave of court before he can appeal against its decision.

  An appeal is with leave under section 242 1999 constitution in any circumstance not falling within S.241(1). 

  Also, Appeal is with leave under S . 241(2) 1999 constitution in the following cases:

 (a) From a decision of a High Court granting an unconditional leave to defend. 

 (b) From an order absolute for the dissolution or nullity of marriage in favor of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and 

(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only. See. Uniform Ind. Ltd v Oceanic Bank International (Nig) Ltd (2005) 3 N. W. L.R .pt  911,p.83.0

 PROCEDURE AND COMMENCEMENT OF AN APPEAL.

 The Court of Appeal  Rules provides the procedure upon which an appeal can be commenced. This was judicially blessed in Idris v Audu (2005) 1 N.W.L.R pt. 908, p.612.

  PERIOD FOR APPEALING.

 Commencement of an appeal is timed, and the duration for such hinged on the type of appeal, whether it is an interlocutory or final decision. By s. 25(2)(a) Court of Appeal Act, the  duration within which an appeal for an interlocutory judgment is to be filed is fourteen (14) days after the decision is given and in the case of a final judgement, the time to file an appeal is within 3 months after the judgment was delivered. See Akeredolu v Aderemi (1986) 2 N.W.L.R.

 

 NOTICE OF APPEAL

Having concerned our mind to time frame to which an appeal must be filed, it is important to highlight that the first step that will be taken is to file  a NOTICE OF APPEAL at the registry of either High Court or Court of Appeal at times. The notice of appeal should contain: the ground of appeal, whether it is whole or part of the decision that is complained of, the relief sought, and the particulars of all parties directly affected by the appeal. See Egbe v Adefarasin (1987). 

 

  ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

 

 However, the law in its fairness permits the filing of an appeal outside the stipulated time frame above, a party who runs out of time can seek for the extension of time to file appeal or seek for extension of time for the leave to appeal, leave to appeal and extension of time within which to appeal.  This is called " Trinity" or three prayer. It should be noted that application for the extension is made by Motion on Notice, supported with an affidavit that contains logical reasons for the delay of appeal within the stipulated time, and application for the extension is only within the judicial power of  Court of Appeal by s.25(4) Court of Appeal Act.

 

   LEAVE OF THE COURT

  On application for the Leave to Appeal ( where an appeal is not of right), by the provisions of o.7, r.4  CAR, application for leave to appeal must first be made to the lower Court (High Court or Federal High Court) whose decision is being appealed against except if there are special circumstances which makes it impossible or impracticable to apply to the lower Court. In such cases, the application may then be made to the Court of appeal.

It should be noted that this application to the lower Court is usually by a Motion Ex parte. Though, the Court may sometimes order that the other party be served or may grant or refuse the application.

In a situation where such application refused by the lower court, then by the provisions of o . 7, r 3 CAR, same  application may be made to the Court of Appeal within fifteen (15) days of such refusal by the lower Court. And the application shall be by way of  Motion on Notice , which must be served on all the affected parties.

 

   It was held by the Supreme Court in Awhinawhi v Oteri (1984) that an appeal filed outside the stipulated time without the leave of court is not an appeal and ought to be struck out. Hence, the effect of appeal filed outside the time stipulated and without the leave of court is that it is defective and incompetent. 

 

 EFFECT OF FILING APPEAL

The effect that comes with the  filing of an appeal as provided by O.4 , r.11 of the CAR, is that "after an appeal has been entered and until it has been finally disposed of, the Court of Appeal shall be seized of the whole proceedings as between the parties thereto and except as may be otherwise provided by the Court of Appeal Rules, every application made in the proceedings shall be made to the Court of appeal and not the trial court".

 

 SETTLEMENT  OF RECORD OF APPEAL:

  Once an appellant filed a Notice of Appeal, the registrar of the lower Court is required to compile the record of appeal and transmit it to the registrar of the Court of Appeal within 60 days after its filing as provided by o.8, r 1 of the CAR. See Engineering Enterprises of Niger Contractor Company of Nigeria v. A.G Kaduna State (1987)2 N.W.L.R pt.57 p. 381.

The record of appeal is the entire document necessary for determining the appeal at the Court of appeal. If the registrar of the lower Court fails to within 60 days compile the record of appeal, the appellant is to compile the records of all documents and exhibits necessary to his appeal and transmit same to the Court of Appeal within 30 days as provided by o.8 .r. 4 of the CAR.

  Where the record of Appeal has been transmitted to the Court of Appeal, the registrar of the court below must notify the parties named in the notice of appeal that the records have been forwarded.

  However, in a situation where both registrars of lower Court and appellant failed to compile the records and transmit same, the respondent may by notice of motion move the Court to dismiss the appeal as provided by o. 8. r 18 CAR.

 It is pertinent to differentiate the filing of an appeal from the entry of an appeal to avoid mixed up. An appeal is filed when the notice of appeal is filed at trial court, while by o.4.r.11 CAR, an appeal is entered when the record of appeal has been transmitted to, received, and entered in the cause book of the Court of Appeal and when an appeal has been entered, the lower Court ceases to have jurisdiction. See Shodehinde v. Reg. Trustees of Ahmadiyya Movement (2001) N.W.L.R pt 58,1071.

 

  RESPONDENT NOTICE

A respondent in favor of the trial court's judgment, having served with the notice of appeal and desired to contend at the hearing of the appeal that the decision varied in part or in whole. Or he is contending that the decision of the court below should be affirmed on grounds other than those relied on by the lower court,  he is to do so by filing a respondent notice in form 10B: o .9, r.1 & 2 CAR  to that effect specifying the grounds for that contention. And where the respondent fails to file the respondent's notice, o.9 , r 3 of the CAR provides that he will not be heard praying for a variation or affirmation of the decision on grounds other than those relied on by the trial Court, except with leave of the Court of appeal.

 

  CROSS APPEAL

  It is an appeal brought by a respondent served with notice of appeal which by himself appealing the same decision. So, a notice of appeal must have been filed for a cross appeal because it is only then that a respondent can be contemplated; hence, his own appeal be tagged cross appeal.

 However  in Oguwa v IBWA (1988) 1 N.W.L.R  pt. 73, p658 it was held that cross appeal needs not to strictly depends upon an appeal having been filed,that any person which judgment was in his favor can file cross appeal without waiting to be served a notice of appeal where he desires to reverse a part or whole the judgment. Though it is incomprehensible to have a cross appeal without an appeal.

 

  BRIEF OF ARGUMENT

  Moreover, after the settlement of record of appeal, the next is the appellant filing his Brief of Argument (statement of his argument). He has forty-five days to file after the receipt of the record of appeal.   Equally, the respondent is required to file his brief of argument too within thirty days of service of the appellant brief on him.

 

  However, where the appellant defaulted to file his brief within forty-five days, the respondent may apply to Court that the appeal be dismissed for want of diligent prosecution. If the respondent fails to file his brief , he will not be heard on oral argument except with leave of the court . See. Krans Thompson Org. v N.I.P.S.S (2004) 17 N.W.L.R. pt.901,46-47.

 

  ORAL ARGUMENT

  Having filed a brief of argument, the parties, through their counsel, are permitted to present oral argument on salient issues and amplify their briefs which they are to adopt as their argument. However, parties are not allowed by this to make new points or present new issues not contained in their brief. If there is no further explanation to be made by counsel, he should adopt his brief and save the Court of his precious time I.e oral argument is not a must for counsel, he can stand by his brief alone.

 

  WITHDRAWAL OF AN APPEAL

 An appellant can, at any time before an appeal is called for hearing, withdraw the appeal in court. When an appellant has filed, a notice of withdrawal, the registrar is expected to serve same on the respondent unless it a withdrawal with consent of parties. 

 

   CONCLUSION. 

 The above discussion is just a terse analysis of the concept of Appeal within the Nigerian legal system, and the same is the product of the writer's research in ample time.

  While I accept any error in this writing, I encourage readers to further research and read scholarly works on the subject matter.

 

Q.T ODEWALE (MR.) 

 

 References. 

Ojukwu, E. and Ojukwu, C.N, _Introduction to Civil Procedure_ (3rd ed.., Helen -Roberts, Abuja,2009).

Resolution Law firm ' _How To Appeal a Judgement in Nigeria_ (2021) '

 

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