Fundamentals of Appeal

Meaning

Court of Appeal per Abdullahi, J.C.A in Anyanwu v UNIJOS¹ defined an Appeal according to the Black’s Law Dictionary, 7th edition at page 94 as a proceeding undertaken to have a decision reviewed by bringing it to a higher authority.

Also, in Ortom v Jime & Ors², the Appellate Court described an Appeal in the following words; “It is trite law that an Appeal is an invitation to a higher Court to review the decision of the lower Court in order to find out whether on a proper consideration of facts placed before it and the applicable law, the lower Court arrived at the right decision.”

Stemming from the judicial pronouncements on the meaning of Appeal, it is therefore submitted that an Appeal is the judicial reaffirmation of a judgement, verdict, ruling or decision of the court below.

Worthy of note is that some courts are statutorily clothed with the judicial garment of reviewing the decision of the lower court. Such courts include the Appeal Court and the Supreme Court.³)

When Is An Appeal Allowed?

A Court above is said to have allowed an appeal when it hears the decision of the court below and reviews same; and in the process discovered that the court below is wanting in any form with respect to its decision. In this case, the court above is bound to set aside the decision of the lower court.

According to the Supreme Court of Nigeria in Adebayo v A.G Ogun State⁴ , an Appeal could only be allowed where, inter alia, a case has been made out to show that there was a fundamental breach of the applicable law or procedural law or that an essential ingredient against an appellant was not established.

In Nigeria Bottling Co. Plc v Olarewaju⁵) , the Court held that as a principle, the error of the lower Court will not result in an appeal being allowed unless it is substantial and miscarriage of justice is occasioned thereby.

From the foregoing, it can be seen that the aim of an appeal is to correct substantial errors of the lower Court which leads to miscarriage of Justice.

Hence, at any point where an appeal is lodged before a higher Court, the sole duty of the Court is to look for possible errors and the lacuna paved by the lower Court which are substantial and capable of robbing justice off his value; and in the same time fill in those gaps and correct the errors which the Court below has occasioned.

The hallmark is to see that justice takes its pride of place. It is pertinent to also note that an appeal when allowed is usually in favour of the appellant as against the respondent.

When Is An Appeal Dismissed?

An Appeal is said to be dismissed when the Court above hears and reviews an appeal and at the end finds out that the decision of the lower Court is valid and that there is no breach of fundamental/procedural laws and so declares it. Worthy of note is that a dismissed appeal is in the favour of the respondent as against the appellant.

What is a Right of Appeal?

Right of Appeal has been described as the right available to a party to appeal the decision of the Court below. It is expedient to point out here that the right of Appeal is not available on its own. It is at the instance of the party who has the legal right to appeal. Simply put, it is only when a party has the legal right to appeal that he can apply the leave of the Court to review the decision of the lower Court. In other words, the right of Appeal can only be exercised when there is a right to that effect. Therefore, right of Appeal is the right a party/litigant has to invoke the higher Court to review the decision of the lower Court.

Who can exercise a right of Appeal?

Court of Appeal has held in Benue State Urban Development Boards & Ors v Asuako & Anor⁶ citing section 243⁷) that a right of Appeal to the Court of Appeal can only be exercised by a party to a proceeding, or with the leave of the Court or an interested person.

The Court further held that in both categories, the person who can exercise the right of Appeal must be a person who is aggrieved by the decision of the lower Court or trial Court. According to the Court, although section 243(1)(a) of the Constitution of Nigeria, 1999 (as amended) provides that the right of Appeal to the Court of Appeal shall be exercisable in the case of civil proceedings at the instance of a party thereto, yet the provision can also be invoked or engaged by a party to the proceedings against whom a decision is made affecting his legal right.

According to the Court, a party who has been exonerated by the decision of the lower Court cannot appeal against it as he is not aggrieved by it. The court further held that a party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had right to demand. Unless there is such a grievance, he cannot appeal against a judgement which has not affected him since the whole exercise may turn out to be academic. Under no circumstance can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party.

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From the above judicial pronouncements, salient points are noted as to who is to exercise a right of appeal. From the holdings of the Court, it can be seen that basically, there are two categories of persons who can exercise the right of appeal to wit; (a). Parties to the suit who has been adversely affected by the decision of the lower Court or who is aggrieved with the decision of the lower Court; and (b). An interested party. Who is then an interested party? An interested party is that party who has a legally recognized interest in the subject matter of proceedings in the lower Court and whom the decision of the trial Court may adversely affect.

Therefore, a person who is not a party to an original suit in the lower Court but has a genuine interest in the suit can also exercise the right of appeal.

Cases Where a Right of Appeal Does not Arise?

Before delving in, it is worthy to note that the right of appeal is a creation of the Constitution, the fons et origo of our laws and other Statutes. It therefore behooves to state that it is not in all cases that a party/litigant has a right of appeal. For instance, in Matrimonial Causes, there is no right of appeal immediately there is a Decree absolute – three (3) months after the High Court made an order of Decree Nisi, it becomes absolute.

When it becomes absolute, it is deemed that marriage has been dissolved and in such instance, no right of appeal shall arise.⁸) A litigant has no right of appeal in an unconditional leave to defend an action.⁹)

Appeal As of Right

More often than not, law students and legal practitioners are seen juxtaposing “right of appeal” and “appeal as of right”. Let it be made distinctly clear that the duo are different concepts standing separately on their own.

First, one has to know that there exists what is called right of appeal and this right can be exercised either “as of right” or with “the leave of the Court.” For the seek of clarity, right of appeal is the right an aggrieved party to a proceeding has to seek for the review of the judgement of the lower Court. While the appeal as of right or as of leave could be said to mean the modes in which this right can be exercised.

What is appeal as of right?

Appeal as of right is where an aggrieved party can exercise his right of appeal without seeking permission either from the lower Court or higher Court. Appeal as of right is in instances provided by law where leave need not be sought.¹⁰

The Constitution of Nigeria provides battalion of instances where a right of appeal will be exercised as of right.¹¹) Note more importantly that under section 241(a)¹²) , final decisions of the court – be it High Court of a State or Federal High Court sitting at first instance in any civil or criminal proceeding shall lie as of right.

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What this means is that any matter wherein the court has given its final verdict, decision or judgement, an aggrieve is statutorily clothed with the right to appeal such final decision without seeking the leave of the court regardless of the ground of such appeal – whether purely of law, facts or mixed law and facts.

The Court of Appeal approved this position in Moussallati & Ors v. Knight Frank Real Estate Agency¹³ when it held that to appeal against any final decisions, no leave is required for any ground of appeal and the appellant can so appeal as of right within the stipulated three (3) months from the date of decision appealed against.

Appeal as of Leave

Just as the name suggests, appeal as of Leave is the right of appeal which cannot be exercised except with the permission or leave of the Court that gives that judgement which a party is seeking to appeal or with the permission of a higher Court – i.e. Appellate Court or Supreme Court as the case may be.

Appeal as of leave is not without constitutional approval. For instance, section 242(1) provides;¹⁴) “that subject to section 241 of this Constitution, an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or Court of Appeal.”

Subsection (2) went further to state that “the Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”

It is expedient to note that since Appeal as of right is based on ground of law alone or where the court has given its final judgement or verdict; an appeal as of leave is that which hinges on question of facts or mixed law and facts in which an interlocutory decision/judgement and not final decision/judgement was given.

What this means is that where the law provides for an appeal as of leave, such appeal shall be exerciseable when the question for determination borders on facts or mixed facts and law. Hence, it was the position of the Appellate Court in Armaford Nigeria Ltd & Ors v NDIC¹⁵ that the leave of the court is required to appeal against interlocutory decision which is not final decision.

It is therefore in this case that the law becomes trite that for an appeal on grounds of facts or mixed law and facts to be entertained by the Appellate Court, the appellant must seek and obtain the leave of the Court.¹⁶ The effect therefore is that failure to obtain the required consent renders the appeal incompetent and bound to be quashed from the court record.¹⁷

Also, worthy of note is that appeal as of leave can also arise once the time stipulated for to appeal as of right has elapsed. A party in this circumstance, can only appeal such case with the leave of the Court regardless of the fact that such appeal was of right in the first instance.¹⁸

Note with utmost importance that consent judgement can be appealed with the leave of the court.¹⁹)

Notice of Appeal

Notice of Appeal is simply the mode of commencement of an appeal – that is the manner which the law requires an appellant to bring in his appeal.

An appeal can be brought either by originating summon or originating application but never can an appellant use a writ of summon to initiate his appeal. There is no gainsaying the fact that notice of appeal remains an integral part of the appeal. Notice of appeal is the pedestal upon which every appellant drives his appeal.

This is because it is the notice of appeal that informs both the court and the respondent of the part of decisions of the lower Court that appellant is challenging.

It informs the Court and the respondent (s) if the appellant wants to appeal against the whole decision of the lower Court or some parts of the lower Court’s decision.

Court of Appeal Rules, 2016²⁰) provides that all appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.²¹

Where a ground of appeal alleges misdirection or error in Law, the particulars and the nature of the misdirection or error shall be clearly stated. The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

The notice of appeal shall be signed by the Appellant or himself or his legal representative. Rule 2 is to the effect that the court will not permit any appeal that is vague or general in terms which fails to disclose any reasonable ground of appeal. Rule 5 gives the court the power to strike out an incompetent appeal.

Ground of Appeal

This is an integral part of appeal. Ground of appeal is the complaints, the issues, the rulings and the decisions which the appellant is not satisfied with at the lower Court. Worthy of mention is that ground of appeal is partitioned into three (3) parts to wit;

1. Appeal based on the ground of law
2. Appeal based on the ground of fact and
3. Ground of mixed law and fact.

Ground of Law

This is when the appellant challenges the decision of the lower Court based on law alone. It is the ground that the court reached its decision on the misunderstanding of law, or that the court misapplied the law in reaching its decision.

The Court of Appeal in Ene v Asikpo & Anor²² gave three distinctive meaning of appeal on ground of law to wit; (a). a question which the Court is bound to answer in accordance with the rule of law.

In the process of answering this question, the court has no power to exercise its discretion in whatever manner; it is a question predetermined and authoritatively answered by law; (b). the second question is as to what the law is; an appeal in which the question for argument or determination is what is the true rule of law on a certain matter.

According to the Court, this question arises out of the uncertainty of the law; and (c). the third meaning according to the Court is in respect of those questions which are committed to and answered by an authority usually a judge – that is, those questions within the province of the judge to answer. Lastly, it is important to note that on ground of law, there is a question of whether or not the lower court erred in law.

Ground of Fact

This is when the appellant challenges the decision of the court below based on facts. Here, what the appellant is questioning or challenging is exclusively how the lower court evaluated the evidence tendered before it at the trial.²³

Appeal on the ground of fact is often used when evaluating evidence; the appellant challenges the decision of the court on the ground that it overweighed or evaluated a particular evidence more than it supposed to.

In a bid to explain Appeal on the ground of fact, the Appeal Court in Ene v Asikpo & Anor (Supra) stated that Appeal on ground of fact does not have one meaning as it could mean any of the following to wit; (i). a question which is not determined by rule of law (ii). any question except the question as to what the law is (iii). and any question that is to be answered by a jury and not a judge is a question of fact. Lastly on the ground of fact, there is usually a question of whether or not the lower court misdirected itself.

Mixed Law and Fact

This is when the ground of appeal involves issues of fact and law. It is a mixed law and fact if the ground complains of the manner in which court evaluated the facts presented to it before applying the law.²⁴

Hence, it has been held that when the court is invited to investigate the existence or otherwise of facts upon which an award of damages was based, such is a mixed law and fact.²⁵)

It is also pertinent to restate that when the ground of appeal is a mixture of law and facts wherein an interlocutory judgement and not final judgement was given by the court, the leave of higher court or lower court must be sought. It is a condition precedent to filing such appeal.²⁶

The implication is that when the leave of the court is not sought, it robs the court off its jurisdiction to entertain such appeal.

What this means is that both the Supreme and the Court of Appeal cannot entertain an appeal that is filed against an interlocutory judgment without the leave of the court first sought and obtained.²⁷

Cross Appeal

As pointed earlier, an appeal is lodged by a party who is adversely affected by the judgement of the lower court. It is also established that a party who is not affected by the judgement of the lower court cannot file an appeal.

Therefore, cross appeal which is akin to counter claim is where the party who has the judgement of the trial court in his favour appeals against some decisions of the Court which are detrimental to him regardless of the fact the substantial decision of the court is in his favour.

For instance, Mr “A” contested an election and lost to Mr “B”, then Mr. “A” aggrieved with the result of the election approached the Election Petition Tribunal and the tribunal affirmed the election of Mr “B”. In this case, Mr “A” who may be vexed with the judgement of the lower court may appeal against it. Then, Mr “B” who, even though the totality of judgement is in his favour may be equally vexed with a particular ruling in that judgement and may as well appeal against it. This kind of appeal is what is referred to as “Cross Appeal.”

For better understanding, the case of Kano State Governorship legal battle is illustrative. After the tribunal nullified the election of Abba Yusuf as the Govenor of Kano State, the embattled governor who was aggrieved alongside his party (NNPP) with the verdict of the tribunal appealed against it at the Court of Appeal wherein the appellate court upheld the decision of the tribunal. Abba Yusuf still not satisfied with the judgement of the Court of Appeal lodged an appeal at the apex court – Supreme Court challenging the decision of the court below.

On the other hand, APC in whose favour the judgement was given also filed a cross appeal challenging the lower court for refusing to hold that Yusuf submitted a forged certificate to the Independent National Electoral Commission (INEC).²⁸

From the foregoing, it should now be crystal clear that it is only the successful party that can file a cross appeal.

The court has in litany of cases maintained that a cross appeal by its very nature is a separate appeal existing independently outside the main appeal with the sole aim of allowing the respondent in the main appeal to appeal against the same judgement or part thereof that he (the respondent is aggrieved).²⁹ The implication of the above is that the dismissal of the substantive – i.e. the main appeal does not affect the cross appeal. What this simply means is that a cross appeal does not become functus officio by the reason of the fact that the main/substantive appeal has been dismissed by the appellate court.

It is as well important to note the well settled principle of law that if the grounds for cross appealing a particular judgement are already contained in the main appeal, it is needless to cross appeal. All that the respondent should simply do is to argue those grounds in his brief even when the appellant failed to argue them.³⁰ This does not however negate the trite law that cross appeal cannot be based on the same grounds as the main appeal.

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1. (2014) C.A LPELR, pp. 18-19, para. G-A [↩]
2. (2019) C.A LPELR, [↩]
3. Please, see sections 233(1), 240 CFRN, 1999 (as amended [↩]
4. (2008) LPELR SCN [↩]
5. (2007) ALL FWLR (pt. 364) at 370 para D – E (CA [↩]
6. (2019) LPELR – CA/J/68A/2009 [↩]
7. Constitution of the Federal Republic of Nigeria, 1999 (as amended [↩]
8. See section 241(2)(b) of the CFRN, 1999 (as amended [↩]
9. See also section 241(2)(a) (supra [↩]
10. Civil Week 16: Appeals, “https://isochukwu.com/2018/01/22/civil-week-16-appeals/” <accessed November, 18 2023> [↩]
11. See generally, sections 233(2), 241(1), 246(1) of the CFRN, 1999 (as amended [↩]
12. CFRN (supra [↩]
13. (2017) LPELR – CA/L/376/2010 [↩]
14. Ibid. Please, see also section 233(3) & (4 [↩]
15. (2014) LPELR-CA/L/926/2011 [↩]
16. Ibid [↩]
17. Please, see NDIC v Jackson Devos Ltd (2014) LPELR-CA/C/77/2011 [↩]
18. The right to appeal is not eternal. There is a specified period of time in which a party can appeal the decision of the Court below. For an interlocutory judgement, the time frame is 14 days after the delivery of the judgement while the time frame to appeal the final decision of the Court below is three (3) months from the date of delivery of such judgement. In criminal matter, the time frame to bring an appeal is 90 days from the date of delivery of the judgement. See particularly section 24(2)(a)(b) of the Court of Appeal Act. See also Order 6, Rule 11 of the Court of Appeal Rules, 2016, [↩]
19. Check section 241(2)(c [↩]
20. Order 7, Rule 2(1)(2)(3)(4 [↩]
21. See Uzoechina & Ors v. Unokah & Ors (2014) LPELR -CA/B/83/2012 [↩]
22. (2009) LPELR-CA/C/136/2006 [↩]
23. Maigoro v Garba (1999) 10 NWLR (Pt.624) 555 [↩]
24. Kwara State Water Corporation v. AIC Nigeria Ltd. (2008) LPELR-CA/IL/14/2007 [↩]
25. Please, see Ene v Asikpo & Anor (supra [↩]
26. Check section 14 of the Court of Appeal Rules, 2004 [↩]
27. Section 233(3) of the CFRN, see also Nikagbate V. Opaye & Anor (2018) LPELR-43704(SC)”. PER U.M.A.AJI, J.S.C [↩]
28. See Bolanle Olabimtan, “Kano guber: APC files cross-appeal, insists Abba Yusuf submitted ‘forged certificate’ to INEC.” https://www.thecable.ng/kano-guber-apc-files-cross-appeal-insists-abba-yusuf-submitted-forged-certificate-to-inec/amp<accessed December 7, 2023> [↩]
29. Karaye v Wike & Ors (2019) LPELR-SC.312/2009; Akpan v Bob & Ors (2010) 4 – 7 SC (Pt. II) 57 [↩]
30. FENTON KEYNES FINANCE LTD & ANOR V. TRANSPLY NIG. LTD (2010) LPELR-CA/L/510/05 [↩]