By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

SNIPPET

There are two ways an aggrieved party can exercise a right of appeal against the decision of the Court; it can be either as of right or with leave of Court. In what circumstances can the decision of a High Court be appealed against as of right, and what situations require the leave of Court? This article answers that.

INTRODUCTION

There are two ways an aggrieved party can exercise a right of appeal against the decision of the Court; it can be either as of right, or with leave of Court. Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)[1] provides as follows:

“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-

  1. Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
  2. Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings…”

At first blush, the above constitutional provisions seem pretty straightforward. If a party is dissatisfied with the final decision/judgement of the Federal/State High Court that heard the matter originally, he can appeal as of right to the Court of Appeal. Also, if the ground of appeal pertains to questions of law alone (not facts or mixed law and facts) in a decision that is not final, he can appeal as of right to the Court of Appeal. But as it is the nature of law, nothing is pretty straightforward. Lawyers, academics and even jurists have proffered divergent interpretations of that section.

This disquisition seeks to explain the concept of Right of appeal, seeking leave to appeal and judicial interpretations of these rights.

APPEAL AS OF RIGHT AND WITH LEAVE OF COURT

The Right to appeal is one that can be exercised freely and without hindrance by a party or person aggrieved by the decision of a Court. In Alliance & General life Assurance plc v. CAC[2], the three wise men of the Court of Appeal defined appeal as of right thus:

“The right of appeal as of right is one which the party or person can exercise at his will and on his own power or authority, so long as it is exercised in compliance with other relevant statutory provisions because the right of appeal is as of right in a party, he has the discretionary authority to file an appeal without seeking for permission, order or leave of either the trial or appellate court to do so.”

Conversely, appeal with leave of Court provided in Section 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)[3], means that a party or person aggrieved with the decision of the Court cannot exercise that right freely; rather, he must first seek the permission of the Court before exercising his right to appeal.

JUDICIAL INTERPRETATIONS OF LEAVE TO APPEAL

The provisions of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) have been subjected to various judicial interpretations by Superior Courts. In the case of Akpan v. State[4], the Supreme Court held thus:

“The provisions of Section 241(1) are quite explicit on circumstances that give an applicant the right to appeal; while an applicant who falls into the category of Section 242(1) requires leave of Court to appeal. By the provisions of Sections 241(1) (a) and (b), there is a right of appeal when the complaint is in respect of a final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; or where the ground of appeal involves questions of law alone in any civil or criminal proceedings.”

Going further, the Supreme Court illuminated:

“In considering the interpretation to be given to the provisions of Section 241(1), I find most instructive the concurring opinion of Karibi-Whyte, JSC in Aqua Limited vs. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 731 S.C., (1988) 10-11 SCNJ 26 where the provisions of Sections 220 and 221 of the Constitution of the Federal Republic of Nigeria, 1979, which are in pari materia with the provisions of Section 241 and 242 of the 1999 Constitution, as amended, were considered…The essential approach is so to construe the sections as to achieve the intention of the citizen – see Sofekun v. Akinyemi (1980) 5-7 SC. 1 Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR. 296. These are the principles I rely upon to govern my construction of these sections of the constitution. I have already reproduced the relevant sections of the Constitution involved in this appeal. I refer to Sections 220(1)(a) and the word “final” therein and the phrase “sitting at first instance.” Whereas the word “final” qualifies the word “decision” in this paragraph (a) the phrase “sitting at first instance” qualifies High Court. The word “final” is not used in Section 220(1)(b), and the expression High Court is also not used. It is also important to observe that Section 221(1) starts with the expression “subject to Section 220 of this Constitution.”

It should be noted that these expressions fortunately have been the subject matter of judicial decisions in our Courts. The expression “final decision” has been construed as a decision completely determining the rights of the parties before the Court. See the cases of Omonuwa v. Oshodi[5]; Akinsanya v. U.B.A. Ltd[6]. The expression “High Court sitting at first instance” is also self-explanatory and requires no construction. The expression “subject to” subordinates the provisions of the subject section to the section referred to, which is intended not to be affected by the provisions of the former. Having prefaced the sections with these explanatory constructions it is now necessary to construe the sections themselves.

The Supreme Court finally laid the matter to rest in the locus classicus case of Akpan v. State (supra)[7], on the requirement of leave to appeal against the decision of the Federal/State High Court to the Court of Appeal:

“I have already stated the general principles that I intend to apply in construing these sections. The sections under consideration appear to me plain and unambiguous even though counsel to the appellant seems to contend otherwise. Section 220(1) confers a general right of appeal without leave of the Court, and as of right, but the paragraphs thereof prescribe the conditions for the exercise of the right. Each paragraph is independent of the other as to the rights conferred. Section 220(2) deals with all cases where there is no right of appeal; except paragraph (c) which confers right of appeal with leave of the High Court or the Court of Appeal. Section 221(1) which is subject to Section 220 is concerned with the exercise of right of appeal where leave of the High Court or the Court of Appeal is required. A careful analysis of Section 220(1)(a) & (b) discloses that the paragraphs of the sub-section govern the exercise of right of appeal, as of right and without the necessity to seek leave of the Court or of the Court of Appeal in respect (a) final decisions of the High Court sitting at first instance. (b) non-final decisions where the ground of appeal involves questions of law alone. – See State v. Albert (1982) 5 SC. 6, Gamioba & Ors. v. Esezi 11 & Ors. (1961) All NLR 584; Olawoyin & Ors v C.O.P. (No.2) (1961) All NLR 622. It seems to me that the non-qualification in (a) of the ground for the exercise of the right, leaves it at large and enables the exercise of the right with respect to all grounds of error whether of law, fact, or mixed law and fact.”

In Iwueke vs. Imo Broadcasting Corporation[8], the Supreme Court, per Onnoghen, JSC said:

“Having come to the conclusion that the decision of the trial Court in issue is a final one as opposed to an interlocutory decision as canvassed by learned counsel for the appellant, it follows that the respondent did not need the leave of either the trial Court or Court of Appeal before appealing against same as it is the law that an appellant appeals as of right against the final decision of a Court of first instance. In such a situation it becomes immaterial or irrelevant that a ground of appeal against such final decision is of law, facts or mixed law and facts. See Section 220(1) of the Constitution of the Federal Republic of Nigeria, 1979… In Samuel vs. Etubi (2011) LPELR-4200 (CA), this Court, per Garba, JCA considering the provisions of Section 241(1) said: The above provisions are unambiguous and clear and by their plain interpretation, say in paragraph (a) that an appeal from the final decision of a High Court sitting at first instance shall be as of right…The law is however settled that an appeal under the provisions being as of right, does not require or need leave of Court for the notice of appeal to be competent irrespective of the nature of the grounds of appeal. Leave of Court is in such circumstances is unnecessary as it was not required in law.”

CONCLUSION

It is clear from the constitutional and judicial interpretations supplied above, that whenever a party wants to appeal against the final decision of the Federal/State High Court that determined the matter originally, it is inconsequential whether the grounds of appeal border on law, facts or mixed law and facts, the appeal shall be as of right. Also, when the decision appealed against, even though not a final decision, borders on question of law alone, the appeal shall be as of right. However, when the decision to be appealed against does not fall under these two categories (and categories found in Section 241(1) (c-f) of the 1999 Constitution of the Federal Republic of Nigeria, as amended)[9], the party must seek the leave of Court to appeal against such decision.

Key terms: Appeals, Appeal as of right, Appeal with leave.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Litigation Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Patrick Emmanuel

Patrick is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Litigation Practice

He can be reached at patrick.emmanuel@omaplex.com.ng

[1] Fourth Alteration Act, 2018

[2] (2018) LCN/11682 (CA).

[3] Fourth Alteration Act, 2018

[4] (2014) LPELR-23376(CA)

[5] (1985) 2 NWLR. 938

[6] (1986) 4 NWLR.273

[7] Ibid.

[8] (2005) ALL FWLR (PT 288)1025

[9] Fourth Alteration Act, 2018

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