By Christian Oti, Esq.
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Abstract:
The need for any person or party to be granted a Fair-hearing stems fundamentally from the inherent make-up of man. Drawing from the Holy Scriptures, one can easily see this in the hearing which Almighty God granted the first man and woman; Adam and Eve, when they had eaten the forbidden fruit (See Gen. 3:9-13). This provides insight to the fact that the composition and/or desire for man in any proceeding is for an opportunity to be heard. Instructively, this idea or perception to be heard goes with the corollary to have any decision or ruling by a court, tribunal or panel, reviewed by an appellate, higher or upper court or body. This process of reviewing the correctness or otherwise of a decision of a court or tribunal by an appellate court, is what is referred to as an appeal. So, when an appeal is made by a party, it is our view that the same can be grounded, based, even solely, by the principle of Fair hearing, and particularly as enshrined under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (“Constitution”). We argue in this paper that, the right of appeal, being inherent and constitutional, cannot be derogated from or taken away without an express provision of the constitution or statute in that regard.
Introduction
An appeal is the presentation of a judgment or decision of a trial court or tribunal before an appellate or higher court for review or interrogation as to the correctness or otherwise of the same. An appeal is a continuation of the case at the lower court. It is not a distinct case from that presented to the first court or panel. As such, a party is expected to be consistent with the case initiated at the trial court before the appellate court in an appeal- Orji v. F.R.N. (2019) 4 NWLR (Pt. 1663) p. 480, Pp. 490, Paragraph C; Sulaiman v. A.P.C. (2023) 5 NWLR (Pt. 1877) 211, Pp. 292, Paragraphs C-D. An appeal is an opportunity for a party or person (in the case of an Interested Party) to have the decision or ruling being questioned or dissatisfied with, set aside, if the appellate court finds it to be wrong.
An appeal must be constitutionally or statutorily provided for, to be well grounded. In other words, if a provision of a law expressly bars the right of appeal, then there cannot be an appeal on that subject. Consequently, a party who seeks to appeal must come within the precinct of the subject matter and procedural jurisdiction of the appellate court.
An appeal can be as of right or with the leave of the court. Where an appeal is not as of right, leave of the court is required before it may be validly initiated at the appellate court. An appeal to the Supreme Court, for instance, is, of right, when it has to do with questions of law only; interpretation or application of the Constitution, questions relating to the contravention or otherwise of Chapter IV of the constitution, or any of the other grounds under Section 233(2) of the Constitution. It was in this respect that the recent decision of the Supreme Court in Anyanwu v. Emmanuel (2025) 14 NWLR (Pt. 2006) p. 531, sparked the debate again whether the Supreme Court still possesses the jurisdiction to entertain appeals coming from the Court of Appeal to it, outside the grounds listed at section 233 of the constitution. It is our submission that the decision, as well as the previous ones on the point, at best was rendered per incuriam. We postulate that the right of appeal cannot by judicial activism or interpretation be taken away from any person or party, as the right is inherent and constitutional.
Brief Facts of the Case
The 1st Respondent as Applicant at the trial court instituted the case vide an Originating Summons against the Appellant sued as 3rd Defendant and the other Respondents, seeking several declaratory and Injunctive reliefs. The case of the 1st Respondent was that as a member of the Peoples’ Democratic Party (PDP) (2nd Respondent), he was entitled to challenge what he considered a breach of the Party’s guidelines and the Independent National Electoral Commission (INEC) Primary Elections Guidelines. He argued that the Appellant cannot hold the office of the National Secretary of the 2nd Respondent and at the same time contest for the gubernatorial seat of Imo state. On the part of the Appellant, he argued that the issue was an Intra-party dispute which courts are not to interfere in, as the same is not justiciable. At the conclusion of the hearing, the trial court answered the questions set out for its determination in the 1st Respondent’s favour. The Court of Appeal in its majority decision of two to one, affirmed the decision of the trial court.
Further dissatisfied by the decision of the Court of Appeal, the Appellant hereof filed the appeal to the Supreme Court. In defending the appeal, the 1st Respondent, challenged the competence of the appeal, alleging that the Appellant failed to seek and obtain the requisite leave to appeal to the apex court, as he considered the grounds of appeal to be of mixed law and fact.
The court in deciding on this objection, per, Salauwa, JSC, at p. 584; 586, paras. D-H; A-B, held as follows:
“Most regrettably, the 1st respondent’s learned counsel is apparently not in tune with the current trajectory of the law vis-а-vis the grundnorm itself. It’s not at all in doubt, that under section 233(1) of the Constitution (supra), the Supreme Court is cloaked with exclusive jurisdiction to entertain, hear and determine appeals from the Court of Appeal. However, under section 233(2) to 233(6) of the 1999constitution, the court’s jurisdiction has been circumscribed in regard to when the right of арреаl can be exercised as а matter of right, or with leave of either the Court of Арреаl or the Supreme Court. However, consequent upon the enactment of the Constitution of the Federal Rерubliс of Nigeria (Second Alteration) Аct, 2010(pursuant to section 6), the entire provisions of section 233 of the1999 Constitution (supra) have been substituted for а new section233. See section 6 of the Constitution of the Federal Rерubliс of Nigeria (Second Alteration) Act, 2010,….Therefore, by virtue of the extant provisions of section 6 of the Constitution of the Fedeгal Rеpubliс of Nigeria (Second Alteration) Act, 2010 vis-à-vis section 233 of the Constitution, the Supreme Court’s power to grant leave to appeal on grounds of mixed law and facts, has been removed. That being the case, therefore, appeals on grounds of mixed law and facts аrе bound to terminate at the Couгt of Appeal”.
Evaluating Honourable Justice Salauwa’s Ratio:
At the outset, it should be stated that we do not align with the position of His Lordship in the instant appeal. It must be emphasized that the right of appeal is one which is constitutionally provided for; and if in any instance it is to be extinguished, we submit, it ought to be expressly stated. In this instance, the learned justice of the Supreme Court seemed to have caused serious hiccups in the justice system, when he echoed that appeal no longer lies to the Supreme Court from grounds of facts or of mixed law and facts. We note that his view has been made in a few other cases, notably in the dictum of His Lordship, Rhodes-Vivour, JSC(Rtd), in Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195, Pp. 209-210.
Clearly, the overarching point of the proponents of this position, is that by the provision of Section 6 of the 2nd Alteration of the Constitution, which deleted or substituted subsection (3) of Section 233 of the Constitution, appeal on facts or mixed law and facts no longer lie to the apex court. Contrariwise, it is our firm opinion that the second alteration of the Constitution has not in any way barred appeals on facts, to the Supreme court.
Undoubtedly, an appeal generally can be initiated as of right or with the leave of the Court. Therefore, the mere deletion of the provision of subsection (3) which hitherto specifically provided for leave to appeal to the Supreme court on grounds of Facts, does not ipso facto, mean that appeals of such kinds have been extinguished thereby. A careful look at Section 233(1) of the Constitution, the inherent and constitutional right of appeal to the Supreme Court was made apparent. The Section reads thus:
“The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal”.
Subsection (2) provides for instances where an appeal can be as of right to the Supreme Court:
“An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases–
When the above provisions are considered, it becomes obvious that the deletion of the hitherto subsection (3) by the second alteration did not make an express stipulation barring appeals with leave to the Supreme Court. As may be gleaned from subsection 2 thereof, the listed cases or instances relates to appeals that can be filed at the apex court as of right. Consequently, it means that any other instance or case that does not fall under those outlined by subsection (2) may be appealed to the court with the leave of the Court of Appeal or of the Supreme Court.
It is noteworthy that by the clear wording of Section 6 of the Second Alteration Act, the intention of the legislature is not clear whether it intended to expunge the right to appeal to the Supreme court with leave. In that case, it may be apposite to apply the “ejusdem generis” rule of interpretation to decipher the intendment of the draftsmen. The ejusdem generis rule applies in an appropriate case to confine the scope of general words that follow special words as used in a statutory provision or document within the genus of those special words-Udoro v. Gov., Akwa Ibom State (2010) 11 NWLR (Pt. 1205) 322, Pp. 336, Paragraphs C-D.
Importantly, the law is settled that a court does not have the power to add, alter, or import any inference into a statute which cannot be inferred therefrom. Pointedly, with the deletion of the old subsection (3) of section 233 of the Constitution by the second alteration, does it expressly or inferentially state that appeals with leave to the supreme court no longer exists? We answer in the negative. That could not have been the intention of the draftsmen, otherwise, the word “substitution” would not have been used by the said Alteration Act. Now, when the group of cases is related to the specific term “as of right” as used in subsection (2) of the Constitution, then the only logical inference that may be made in this respect, is that any case which does not belong to the circumscribed class, would have to be brought with the leave of court. This must be so, because Section 233(1) of the Constitution, already made it clear that an appeal shall lie to the Supreme Court, from the Court of Appeal.
Furthermore, while we reckon that the decision of His Lordship, Salauwa, JSC, in this case, as a concurring judgment, is complementary to the lead judgment delivered by His Lordship, Tukur, JSC, it is submitted that given that the concurring decision went above what the lead decision decided, the same cannot be said to be complimentary but inconsistent. In this appeal, the objection raised by the Respondents was that some of the grounds of appeal ought to have been filed with the leave of Court, to which the lead judgment found the issues to be of law, needing no leave. Thus, the concurring judgment of Salauwa, JSC, in this respect, being on the plank that an appeal on facts no longer lies to the Supreme Court, ought to be deemed inconsistent with the lead judgment, and cannot prevail over the lead judgment. The law is settled beyond doubt that where there is an inconsistency between a concurring judgment and a lead decision, the former gives way, to the extent of its inconsistency-Sifax (Nig.) Ltd. v. Migfo (Nig.) Ltd. (2018) 9 NWLR (Pt. 1623) P.138, Pp. 176, Paragraph B. Consequently, it is this writer’s opinion that the lead judgment delivered by Tukur, JSC, prevails and, in assessing the instant appeal, it can be held that there is no binding decision of the Supreme court, to the fact that an appeal no longer lie with leave to the Supreme Court.
Conclusion
An appeal provides an opportunity for a review of decisions of courts or tribunals. Thus, we consider it an integral aspect of the right to fair-hearing and access to courts. Therefore, if such a right is to be abolished or expunged, it ought to be expressly stated. The correct interpretation in our humble view is that where it is not clear if a statute bars an appeal of any kind, it ought to be resolved in favour of a right of an appeal. In sum, from our assessment of the instant decision viz-a-viz the provision of the Constitution, an appeal can still lie to the Supreme Court from the Court of Appeal from grounds of facts and/or of mixed law and facts, until a contrary amendment to the Constitution, or statute specifically abolishing this right of appeal is enacted.
The author is a Legal practitioner duly called to the Nigerian Bar; and may be reached through email: chrisoti@nigerianbar.ng
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