Has The Supreme Court Determined That Right To Appeal From Court Of Appeal To The Apex Court On Grounds Of Mixed Law And Fact No Longer Exist? By A.J.Owonikoko, SAN

It was suggested in that piece which attempted a review of the decision that the Supreme Court had used the occasion of their judgment in that appeal to pronounce the death of right of appeal to the Supreme Court other than on ground of law alone ; ostensibly by reason of the 1st , 2nd and 3rd Alteration to the Constitution of the Federl Republic of Nigeria , 1999. I quickly ordered for a copy of the law report as it presented to be somewhat extraordinary that such a monumental decision could be handed down without some form of invitation to formidable amici advocacy ; and perhaps before a full panel of the court . The report having since come to hand , I discovered that indeed a passage in the lead judgment of Honorable Justice Bode Rhodes- Vivour ( who also presided over the panel that took the appeal ) would appear to support that deduction. Here is what his lordship said in the concluding part of his speech after upholding the preliminary objection of learned Respondent counsel (O. Tolani Esq.,) to the competence of the appeal at pages 209-210 of the report : “…Appeal struck out. I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Act , 2010. By the Alterations there is no longer section 233(3) of the Constitution. That is to say, the Supreme Court now can only hear appeals where the ground of appeal involves questions of law . See section. 233(1) & (2) of the Constitution . The Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts. Appeals on grounds of mixed law and facts ends at the Court of Appeal .” The last time such a ground breaking pronouncement with potential to short curcuit, nay, foreclose right of appeal as had hitherto been recognized to be available , the Supreme Court trod the path of circumspection and acuity by empaneling a full court of 7 Justices . They also extended audience to a rich pool of amici to assist their lordships with their resourceful perspective in coming to a sound decision . That was the Skye Bank v. IWU (2018) 6 WRN 1 . The Supreme Court, therein, construed the amendments introduced into the constitution vide the 3rd Alteration Act No. of 2011 which made National Industrial Court a superior court of records and vested exclusive original jurisdiction in it on labour and ancillary matters as well limited window of appeals against its decision with or without leave to breach of fundamental Rights. This much the legislature evinced their intention to achieve vide section 254C introduced into the Constitution by that amending legislation and its effect on right of appeal to court of appeal as prescribed under 240 and 243 (1) and (4) of the Constitution of the Federal Republic of Nigeria , 1999 ( as amended ). The case as well as spirited efforts and argument for terminating interlocutory appeals and appeals on facts at court of appeal, is not new . It was last legislated under the last military regime vide Constitution (Amendment ) Decree No. 3 of 1998. Section 1 thereof expressly repealed right of appeal to Supreme Court against decision of the court of appeal in any interlocutory appeal to it or against its decision granting or refusing leave to appeal from any decision of a High Court. The intendment was unequivocal . It left no room for argument or doubt stating thus: “(3) Notwithstanding the provisions of subsection (2) of this section , no appeal shall lie to the Supreme Court from any decision of the Court of Appeal in respect of an interlocutory decision.” “(4) nothing in this section shall confer any right of appeal from a decision of the court of appeal granting or refusing leave to appeal to the Court of appeal from any decision of a high court .” The decree proceeded further by inserting a sub-section (5) which provided , inter Alia, that “…subject to the provisions of subsections (2) (3) and (4) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with the leave of the Supreme Court.” In parity with those provisions of the decree which were repealed and were not reintroduced into the 1999 Constitution , similar expression was employed under the extant constitution to achieve the same terminal forum for appeals in decisions of election tribunals in legislative houses petitions and Governorship elections petitions from 1999 till 2011 when 1st and 2nd Alterations to the Constitution opened a pathway to the Supreme Court in Governorship election petitions . Consequently only Governorship elections enjoy double appellate reviews at both the Court of appeal and Supreme Court. All others including presidential election can only be litigated to conclusion on two tiers commencing at a tribunal or court and ending at single level appellate forum. With the above clarification , it does not appear that the decision of the Supreme Court in Shittu’s case has not been misapprehended or mis-articulated in the post under consideration . The most obvious reason for the opinion just postulated is that , the pronouncement of the noble learned Justice was carefully inserted under the concluding commentary after the court had resolved the merit of Respondent’s objection in its Favour by holding that the appeal required leave and prior leave having not been sought and obtained , it was ipso facto rendered incompetent . Three of the other Justces on the -man panel reached similar conclusions and for the same reason . See per Okoro, Sanusi and Bage JJSC in their concurring concurring contribution. Secondly , the grounds of the objection as canvassed and contested by respective counsel did not embrace provisions of. 1st , 2nd or 3rd Alteration to the Constitution. Furthermore , the lead judgment where the vexed passage can be found was prefaced with the cautious verb by his lordship , that what followed was mere observation . It was made only in passing as an aside that was not necessary for the resolution of the real issue the court was invited to address and determine. It is therefore safe to reckon with the remark as an obiter dictum . It does not represent or qualify (as ) a decision or authority for the proposition that right of appeal to the Supreme Court on grounds of facts, mixed law and facts or challenging exercise of discretion of the courts below no longer exists; even with leave . That is a misreading of the ratio of the decision by majority of the apex court all four of whom struck out the appeal as incompetent. This conclusion is easy to infer from the absence of any reproduction , identification or construction of the provisions of any of the three Alteration Acts in the entire judgment . Had that been thought necessary , their lordships can be trusted to have each given the issue their characteristic and illuminating cerebral interrogation as will leave no room for doubt that they intended to read down the provisions of section 233(3) of the Comstitution. Happily , it is unnecessary to even argue that the passage was made per incuram because neither the first , second or third Alteration to the Constitution referenced , directly or otherwise , subsection (3) which vests the jurisdiction on the Supreme Court to entertain appeals on grounds other than those of law alone albeit subject to prior leave being sought and obtained either at the court of appeal ; or from their lordships themselves . The three Alterations left section 233 (3) un-altered and unaffected by the provisions they amended in, or introduced into, the Constitution. A separate bill for enacting that groundbreaking amendment to limit appellate rights in interlocutory appeals from lower court to terminate at Court of Appeals (and abolish second tier appeal on same to the Supreme Court) is under consideration at the National Assembly. It is yet to receive concurrent approval of two thirds of state houses of assembly , and ultimate final assent . Hence my curiosity about how the genius of their lordships has been brought to bear to circumvent the legislative process ( as seemed to be implied in the controversial post) to reach place such construction on the extant provisions of section 233 (2) of the Constitution in lieu of awaited but seemingly delayed legislative option of directly amending the constitution. Perhaps the editorial inadvertence of the publishers of the report contributed to the confusion. The passage from Rhodes-Vivour JSC’s lead judgment was extracted and made ratio number 5 in the editors’ note followed by 8 others to make 13 rationes in all – that is already a red flag that something was amiss. With due respect it is hardly conceivable that in the resolution of a singular issue as to whether the appeal on a decision bordering of exercise of discretion could be competently lodged to the Supreme Court without leave 13 rationes could be extracted without sacrificing precision and frugal use of words . Needless to say that Odili JSC dissented and her view was reported as a sole dissentient ratio in the judgment ; reasoning as did her ladyship, that the complaint in the appeal was not on mixed law and fact but rather held that ‘ …the grounds reveal a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted ..” (page 214) thus overruling the objection but dismissing the appeal on the merit . One thing is more than certain , the proper approach to interpreting constitutional provisions , particularly when it falls to be decided whether right of appeal had been taken away or granted where any ambiguity in the law creates a confusion – the court will lean in favour of that construction out of multiples that can be legitimately pressed , which will grant access to litigant to ventilate his grievance , as against the construction that tends to unduly restrict or deny that accesss . I therefore beg to opine that nothing in the 1st , 2nd or 3rd Alterations to the Constitution of the Federal Republic of Nigeria ,1999 (as amended) supports the view that the right of appeal on mixed law law and facts to the Supreme Court with leave under section 233(3) has been abolished . It is a gross misreading of the ratio in Shittu v. PAN Ltd to argue the contrary .]]>