By Abdulkabir Badmos, Esq.
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INTRODUCTION
Generally, one of the procedural steps that if not properly mastered by an appellate lawyer capable of being a nightmare to his practice is the requirement to seek leave of court to appeal on grounds of facts or mixed law and facts. Little wonder that, as seemingly settled as the position of the law is in this regard, many practitioners continue to misunderstand the requirements of this rule leading to the technical knockout of their appeals at a preliminary stage. In this piece, the author x-rays constitutional requirements of obtaining the leave of court in final decisions and recent judicial attitudes thereto.
LEAVE OF COURT ON GROUNDS OF FACTS OR MIXED LAW AND FACTS
The legal requirement for seeking the leave of the court to appeal to a higher court on grounds of facts or mixed law and facts draws its strength from the Nigerian constitution. That being case, the Courts take it with all seriousness and it is never considered as a mere technicality, which can be waived in the interest of justice. The leave of court is required to appeal on grounds of facts or mixed law and facts, to the Court of Appeal or the Supreme Court. This position, as it relates to the Supreme Court, has since changed as we shall discuss subsequently in this piece.
The law is that where a notice of appeal contains grounds of facts or mixed law and facts, the leave of court must be sought and obtained prior to filing the said notice of appeal. In Ajose-Adeogun v. Olojede[i], the Supreme Court held:
“Failure to seek and obtain leave in respect of grounds of appeal of mixed law and facts renders such grounds incompetent and by extension the appeal is also thereby rendered incompetent. In this case, the appellants’ grounds of appeal clearly contained grounds of mixed law and facts, hence the appellants were required to seek leave of either the Supreme Court or the Court of Appeal as provided under section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). The record of appeal clearly showed that the appellant did not obtain the required leave before the appeal was filed. This failure went to the root of the appeal and robbed the Supreme Court of the jurisdiction to hear and determine the appeal.”
The consequence for failure to seek and obtain the leave of court to file an appeal that embodies questions of facts or mixed law and facts is summarily to strike out the ground of appeal. In Ozomgbachi v. Amadi[ii], it was held:
“By virtue of section 233(3) of the 1999 Constitution, as amended, leave of court must first be sought and obtained before grounds of appeal, which do not involve only questions of law can be filed at the Supreme Court. In effect, the leave of court first sought and obtained is what validates grounds of facts or mixed law and facts, and the issues raised therefrom at the Supreme Court. In this case, the grounds of appeal complained about are grounds of mixed law and fact. In the circumstance, the grounds and the issues raised therefrom are incompetent because leave of court was not sought and obtained before the grounds were filed. Consequently, the grounds and issues raised therefrom ought to be struck out. [Kano Textile Printers Ltd. v. G. & H. (Nig.) Ltd. (2005) 13 NWLR (Pt. 943) 680.”
It is however worthy of note that there is perennial confusion of practitioners in determining whether a ground of appeal is of law alone or of mixed law and facts. The difference is sometimes upon thin and blurry lines. This confusion is judicially noticed, but some pointers to identifying these differences were laid down in Badan-Lungu v. Zarewa [iii] where the court held:
“The distinction between a ground of law and a ground of mixed law and fact is very thin and not as straightforward as it might first appear. What is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding of the law or a misapplication of the law to the facts already proved or admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine. [Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; Anukam v. Anukam (2008) 5 NWLR (Pt.1081) 455; Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1251) 404; Chrome Air Services Ltd. v. Fidelity Bank (2018) 5 NWLR (1611) 160 referred to.]”
Admittedly, some of the above authorities (though recently reported) were decided based on the state of the law prior to the amendment of the 1999 Constitution in 2010, as it relates to leave to appeal to the Supreme Court. This is not surprising because the law is that a suit will naturally be determined by the law in force as at the time of the accrual of the cause of action. See Fatola v. Mustapha[iv]
Another tricky situation that practitioners usually encounter is when the Court of Appeal delivers a judgment and a dissatisfied party files a motion for leave to appeal (within time) before the same Court, but the motion is not taken at the lower court, within time. It may be contended that once the application for leave is made within time, it is immaterial whether the lower court hears the motion or makes the order within the statutory time or not.
This contention finds its strength in section 27 (1) of the Supreme Court Act[v] which provides:
“Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by Rules of Court within the period prescribed by subsection (2) of this section that is applicable to the case.”
By the clear and unambiguous provisions of section 27 cited above, the lawmakers intend that it is sufficient that an appellant files his notice of application for leave within time. Whether the Court of Appeal now hears the application within time or not, should be immaterial, as that decision is not within the control of the appellant. The use of the word “or” in that section manifestly supports this intent. The law is that when “or” is used in a statute, the provisions shall be construed disjunctively and not conjuctively. See N.U.P. v. I.N.E.C.[vi]
Yours truly, the author, contended these points before the Court of Appeal[vii] sometimes in 2025 in Abdulkarim v. Alu[viii]. In that case, the Appellant filed his motion for leave to appeal the judgment of the Court of appeal barely thirty days after the judgment, and within time. However, due to the congestion of the court’s docket, the motion was not heard until after the expiration of three months as provided for in section 27 (2) (a) of the Supreme Court Act. The Court of Appeal, in its ruling per Ogakwu JCA, rejected our propositions and held as follows:
“Let me iterate that at the time the application of the Appellant/Applicant for leave to appeal on grounds of mixed law and facts was argued before this Court, the prescribed period within which to appeal had elapsed. The concomitance is that this Court is now bereft of jurisdiction to grant the application. In the words of Ogunbiyi, JSC in DICKSON OGUNSEINDE VIRYA FARMS LTD vs. SOCIETE GENERALE BANK LTD (supra) at 10: “For all intents and purposes, I seek to say that at the time the said applications were struck out…, they were both in fact incompetent and the Court of Appeal had no jurisdiction to entertain same. This is bearing in mind that the jurisdiction to grant an application for leave is limited to the 3 months period as stipulated by Section 27 of the Act…” A leave of Court to appeal obtained after the statutory period to appeal has expired or an appeal led thereon is useless: NALSA & TEAM ASSOCIATES vs. NNPC (1991) LPELR (1935) 1 at 24 and ADEFULU vs. OYESILE (supra) at 417-418.”
The learned Justices relied on several authorities of the Supreme Court to make this finding including BOWAJE v. ADEDIWURA[ix], a 1976 decision of the apex court.
The writer is of the firm view that this half-century precedent and other like it ought to be revisited in view of the realities that face our appellate courts in this age. First, for the reason that the scenario that played out in those cases does not involve a case where the motion was pending when the time elapsed. Second, the dockets of our appellate courts are no longer what they used to be. It is not uncommon these days, to have an innocuous motion for leave to appeal pending in some divisions of the Court of Appeal for several months without dates of hearing assigned.
Any decision that therefore punishes a vigilant appellant for the drag in the judicial system will, in my respectful view, occasion a miscarriage of justice no matter how well delivered or reliance on settled authorities. It is the judgment of the court, but may not meet the justice of the case. There are two options, in my view, to mitigate this: adherence to an administrative judicial policy that ensures that any motion for leave filed timeously is heard within the shortest possible time; or a review of judicial attitude to any motion for leave to appeal filed within time.
RECENT DEVELOPMENTS RELATING TO LEAVE TO APPEAL TO THE SUPREME COURT
It has been stated earlier in this piece that the requirement for leave to appeal on questions of facts or mixed law and facts is mandatory and fairly settled in law. This leave may be obtained either from the Court of Appeal (within three months of the decision sought to be appealed against) or at the Supreme Court, thereafter.
The requirement, as it relates to the Supreme Court, has however now been removed by the amendment of the constitutional provisions in section 233 of the 1999 Constitution (as amended). The new state of the law is that all rights of appeals that involve questions of facts or mixed law and facts now end at the Court of Appeal. By this amendment, the Supreme Court only has jurisdiction to hear appeals on questions of law alone, which by the way requires no leave.
Subsequent to this amendment of the constitution, the first time the apex court had an opportunity to comment on this was in the case of Shittu v. P.A.N. Ltd [x] where it held thus:
“There is now in existence the 1999 Constitution of the Federal Republic of Nigeria, 1999, as altered by the First, Second and Third Alterations Acts, 2010. By the alterations, there is no longer section 233(3) of the Constitution which allowed leave to appeal to the Supreme Court. That is to say, by virtue of section233(1) and of the Constitution of the Federal Republic of Nigeria, 1999 as altered, the Supreme Court can only hear appeals where the ground of appeal involves questions of law. 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 end at the Court of Appeal.”
More recently, in Anyanwu v. Emmanuel[xi], the Supreme Court restated the law thus:
“The fact that bу virtue of thе provision of section 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010, the Supreme Court’s power regarding leave to argue ground of mixed law and facts has bееn removed from the Constitution, is nо longer in doubt. Thus, it would not auger well for the courts nor Counsel to continue to act upon the provisions of subsection of section 233 of the1999 Constitution that has since 2010, over оnе and half decades ago, bееn deleted bу, оr substituted with an entirely new section 233 pursuant to section6 of the Constitution of the Federal Republic of Nigeria (Second Alteration), 2010. Therefore, the 1st respondent’s ground challenging jurisdiction of the court was of no moment.”
By the above decisions, it is crystal clear that the previously open window of contending issues of facts or mixed law and facts at the Supreme Court is now firmly shut. While it is conceded that the limitation was achieved by a constitutional amendment, observers suspect that this is not unconnected with the continuous desire limit the character of cases that gets to the Supreme Court for adjudication.
While it is commendable that the Supreme Court is recently sanitizing its docket and throwing out all incompetent appeals, caution ought to be exercised in achieving these lofty aims so as not to deprive willing and diligent litigants of their constitutionally guaranteed rights of appeal.
CONCLUSION
The removal of the right to appeal on grounds of facts and mixed of facts has indisputably dealt a huge blow on hundreds (if not more) of pending appeals from the Court of Appeal to the Supreme Court. All that a Respondent at the Court of Appeal, in recent times, needs to do under the current dispensation is to bring it to the court’s attention that some of the appellant’s grounds of appeal are of mixed law and facts, and those grounds will be struck out. With or without leave, sought and obtained.
The new position technically ends majority of civil cases, barring those that are sui generis, at the Court of Appeal. This is somewhat unfortunate because this has unwittingly made the Court of Appeal the final court on questions of facts in many cases of contract, marriage, land or chieftaincy affairs. In all of these categories, hardly can there be sufficient grounds of appeal that are of pure law to upturn a decision on further appeal to the Supreme Court.
Faced with the current realities, it is recommended that the learned Justices of the various divisions of the Court of Appeal ought to be charged to ensure uniformity and consistency with settled rules of law while settling questions of facts. The unpleasant experiences of having conflicting decisions of the same court on similar facts ought to be a thing of the past, as the Court of Appeal is now, technically, the “Supreme Court of facts” in Nigeria.
Abdulkabir Abiodun Badmos, Esq. Managing Partner, Bushrah Attorneys,
Abuja, Nigeria. 0134667233, aabadmos08@gmail.com
[i] (2024) 13 NWLR (Pt. 1956) 537 (SC).
[ii] (2018) 17 NWLR (Pt. 1647) 171 (SC).
[iii] (2024) 13 NWLR (Pt. 1956) 399 (SC).
[iv] (1985) 2 NWLR (Pt. 7) 438 (CA).
[v] Laws of the Federation of Nigeria, Cap 424, 1990.
[vi] (2021) 17 NWLR (Pt. 1805) 305 SC
[vii] Gombe Division, sitting in Maiduguri.
[viii] (2025) LPELR-81254(CA).
[ix] (1976) LPELR (795) 1 (SC) at 5, Per Bello, JSC.
[x] (2018) 15 NWLR (Pt.1642) 195 (SC) (Pp. 209-210, paras. H-B).
[xi] (2025) 14 NWLR (Pt. 2006) 531 (SC) (P. 587, paras. D-G).
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