LEGAL IDEAS FORUM

Scope and Limitations of the Constitutional Right of appeal:A simple Exposition For non Lawyers.

INTRODUCTION.
The right to appeal is perhaps the most prominent in our judicial system, the importance of this right cannot be overemphasized. It is a significant and notable development of our accusatorial system and a remedy for lapses in the application of law due to its technicality. Right to appeal creates the opportunity to remedy faulty and inapt interpretation and application of law by a court of lower calibre. The importance of the right to appeal was aptly summarised in NIGERIAN BAR ASSOCIATION V. CHUKWUMEIFE (2007) LPELR-8213(CA) per ERI J.C.A. thus:

“A right to appeal against a decision of any court is a statutory right. It is indeed a constitutional right at the level of superior court of records. When any aggrieved litigant either personally or through his counsel exercises this right, it is not material the motive for taking the option. It is part of the due process of law and the beauty of our judicial system. Until a matter is finally determined by the Supreme Court, being the final court in the land, none of the parties can rejoice or laugh last because decisions can change at every turn of the courts.”
Hence, the need to decipher the scope and limitations of this right is imminent.

MEANING, SCOPE AND LIMITATIONS OF THE RIGHT TO APPEAL.

The right to appeal is a fundamental privilege that could only be triggered sequel to a legal judgement passed in an instance case by a competent court. In a lucid analysis, the right to appeal simply implies the right to seek for the review of the judgement of a lower court by a higher court that is constitutionally bestowed with the jurisdiction to entertain appeals. Every citizen of Nigeria has the right to approach a higher court simply because it is a constitutional right as it was held in the supreme court case of SEBASTIAN ADIGWE vs. FEDERAL REPUBLIC OF NIGERIA LER[2015]SC.115/2013 thus:

“It is elementary to state that every citizen of this country may approach a higher court on appeal against a decision(s) of a lower court depending on the nature of the decision, or even as an interested party for a favourable relief(s). That is why the Constitution has categorized these decisions on which a citizen can exercise such Constitutional right of appeal as of right241(1); 244(1); 245(1) of the Constitution 1999 (as amended) and or where he can exercise such right by leave of court (SS. 233 (3); 241(2); 242(1); 243; 244(2); 245(2) of the same Constitution.” PER I. T. MUHAMMAD, J.S.C.

The exercise of right to appeal is bound to be in accord with the provisions of the Constitution and the rules of court in question. Formally, an appeal lies from federal high court and high court to court of appeal and ends a hearing in the supreme court as the apex court in the land. The supreme court, in the preceding case restated the position of the Constitution thus:

‘‘Section 233(6) and other corresponding sections of the same Constitution provides as follows:
“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall, subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.” Thus, the exercise of such right is subject to what an Act of the National Assembly or Rules of court may provide for the time being.’’ PER I. T. MUHAMMAD, J.S.C

To kick start an appeal, Notice of appeal is a very important document to be put forth. Without the notice of appeal, an appellate court lacks the jurisdiction to entertain an appeal.

The supreme court in FIRST BANK OF NIGERIA PLC. v. T.S.A. INDUSTRIES LIMITED (2010) LPELR-1283(SC) also gives weight to the provision above while opining that:

“A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is Incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain”. Per ADEKEYE J.C.A.

The requirements of notice of appeal was enumerated in the prominent case of UZOECHINA & ORS v. UNOKAH & ORS (2014) LPELR-22594(CA) thus:

“It is trite, that an appeal shall be by way of a rehearing and must be predicated upon a notice (of appeal) to be filed in the registry of the court below. Invariably, a notice of appeal shall set forth the grounds, stating whether the whole or part of the decision of the court below is complained of, the exact nature of the relief sought, and the names and addresses of all respective parties directly affected by the appeal. See Order 6 Rule 2(1) of the Court of Appeal Rules, 2011.”

Right to appeal has a time constraint under the law, notice of appeal or leave to appeal must be submitted within 14 days if the appeal is against an interlocutory order and three months if the appeal is against a final decision in a civil matter. Ninety days is allowed for an appeal in a Criminal case. The court of appeal may extend this period on application by the appellant.

Leave to appeal is borne out of section 242 of the constitution. Leave means permission in this section. leave is a statutory precondition for an applicant to exercise his right to appeal. Leave to appeal can be obtained from federal high court, high court and court of appeal.
It should be duly noted that Section 241 of the 1999 Constitution provides for appeals as of right while section 242 provides for appeals which prior leave is required before such appeals can be valid.

However, it should also be noticed that once time for appealing or seeking leave to appeal against the decision of the Court has lapsed or expired, it is no longer a right, statutory or constitutional, but is a matter of invoking the discretion vested on the Court of Appeal to extend time to enable the appellant to appeal or to refuse the application.

Appeal is generally reserved for the “aggrieved” which grammatically refers to “being resentful due to unjust treatment”. Therefore, it is a trite position of law that the right to appeal is strongly reserved for the aggrieved. In other words, an aggrieved party does not include a party in whose favour an order has been made, therefore if an order or orders made by the court do not offend the purported appellant, he can not be said to be an aggrieved party. He therefore can not appeal either as of right or with leave of court. This is the position of law with staunch reliance on the case of EBEBI & ORS V. DENWIGWE & ORS (2011) LPELR-4909(CA) and EKUNOLA v. CBN (2006) 14 NWLR [pt.1000] 292.

A third party otherwise Known as a desirable party, not necessarily a party in the original suit at the instance hearing can be a part to an appeal so far the mandatory preconditions are met. The court in Jadesimi v. Okotie-Eboh; In re Lessey (1989) 4 NWLR (Pt.113) modified the provision of section 243(a) thus:

“A person who is a desirable party because he has an interest in an action has two distinct rights. They are, the right to apply to be joined as a party in the trial court and the right to seek leave to appeal pursuant to Section 222. His failure, refusal or neglect to pursue his right in the trial court to be joined as a party will not bar him from seeking and obtaining leave to appeal against a decision which is detrimental to his interest.” Per Akpata JCA.

The actual definition of a “desirable party” was clearly elucidated in LAWAL v. FED. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT & ORS (2011) LPELR-9259(CA) thus:

“Desirable parties are those who have an interest in the suit or may be affected by the result thereof.” Per OKORO, J.C.A.

Therefore, a third party can be part of an appeal notwithstanding the fact that he/she was not part of the original suit.

Appeal against an interlocutory order can be valid if only such appeal relates to the question of law. This position of law was efficiently invoked in the case of UNION BANK OF NIGERIA PLC v MR. OLUSOJI SOGUNRO (2006) 16 NWLR thus:

“It is trite that an appeal against a decision of High Court on interlocutory matters lies in the Court of Appeal as of right where it relates to question of law. But where the appeal is on ground other than that of law, only then, prior leave of the High Court or the Court of Appeal must be sought and obtained. Failure to obtain such leave would render the appeal incompetent (see Section 221(1) of the 1999 Constitution).”

Notably, the term “question of law” is the keyword in the provision above and as a result, it must not be left undefined. The supreme court in ANOGHALU & ORS. V. ORAELOSI & ANOR (1999) LPELR-496(SC) explained the term “question of law” thus:

“In Metal Construction (West African) Uti. v. D. A. Migliore & Ors .. In re Miss C. Ogundare (1990) ANLR 142; (1990) 1 NWLR (Pt.126) 299- this Court examined, at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte JSC at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law.

This excludes the exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only.

Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.” Per Ogundare, J.S.C.

Right to appeal is effective in a situation where a court deliberately discard the idea of serving a party with hearing notice that inhold the date of hearing of a case. The affected party is eligible to trigger his right to appeal against the decision made in such suit. This position of law is rooted in plethora of cases. The case of OLU v. IRANLOYE (2007) LPELR-8748(CA), the court held affirmatively per AGUBE J.C.A:

“I think that the Appellant in this case has a right to appeal against a breach of his fundamental right to fair hearing when the court deliberately refused to serve him with hearing Notice as to the date of hearing of the case on the 8/2/2006 and also failed to consider his motions for extention of time to file a defence”.

In criminal cases, accused persons have right to appeal a judgment given on wrongful admission or refusal to admit evidence having fulfilled the necessary procedures of law which was carefully enunciated in the celebrated case of ADIO v. AG, KWARA STATE & ORS (2013) LPELR-22067(CA) where the court of appeal held that:

“Time does not run against any party on the issue of wrongful admission or refusal to admit evidence. The party is therefore expected to wait until the final determination of the case by the trial Court before exercising his right to appeal. “A decision made by the trial Court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue.” See Onwe v. Nwa Ogbuinya (2001) 1 SC. (Pt. 1) 22, Ukpo v. Imoke (2009) 1 NWLR (Pt. 1121) P. 90, Statoil Nig. Ltd v. Inducon (Nig.) Ltd. & Anor (2012) LPELR – 7955 (CA).” Per AGBO, J.C.A.

Right to appeal is not an absolute right. In the case of ACN & ANOR v. INEC & ORS (2013) LPELR-20300(SC), the apex court held that:

‘..appellant’s right to appeal against the judgment of the Tribunal, like any other right under the law, is not absolute. Procedures from the enforcement of the right must be complied with. Even the ultimate right under the Constitution, the right to life, is not absolute. It is qualified. See S.33 (1) and (2) (a), (b), (c) of the Constitution (supra).” Per NGWUTA, J.S.C.

Also, in SAIKI V. SIMON & ORS (2010) LPELR-8968(CA), the court held:

“Essentially, the right to appeal is derived from the Constitution of Nigeria. This right must not be infracted in any way. It is no wonder that this fact was borne in mind by the drafters of the rules of practice and procedure of this Court, that is, the Court of Appeal Rules, 2007. “PER OMOLEYE, J.C.A

Likewise, in the celebrated case of AP PLC v. ADENIYI & ORS (2011) LPELR-3642(CA), the court held:

“The right to appeal is guaranteed by the constitution but this right should be accorded dignity and not embarked upon on trifling issues which can be taken up generally with the substantive appeal in the conclusion of a matter. See Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) SC 42.” Per NWODO, J.C.A.

CONCLUSION.
The right to appeal is a fundamental right that also requires due diligence and attention. Knowledge of its conjuration is the most essential. It is trite that hierarchy of court determines it vastness and ability to control and apply the law. Appeal avail litigants the opportunity to explore the versatility of the higher court and gives the opportunity to obtain the prize which is Justice.

ABOUT THE WRITER

Adesina Selimllah Abimbola is a first tier law student of Ahmadu Bello University, Zaria, Kaduna state. He has great penchant for human right advocacy and corporate law. He can be reached via 08029602182 or [email protected]

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