In filing an appeal to the Court of Appeal from the lower courts or to the Supreme Court from the Court of Appeal, an appellant has to be careful not to be caught by what may be referred to as the ‘leave provision’ or the ‘leave requirement’. There are in our Statutes and Rules of Court pertaining to practice and procedure not many provisions
and rules that do not require the leave of the Courts to file an appeal. Leave is defined by the Oxford Dictionary of Law as the permission given by the Court to take some procedural steps in litigation. In Wellington v. Registered Trustee , the Court of Appeal stated that the world ‘leave’ in the context of an application brought before a court means in legal parlance ‘permission’.
The Supreme Court in Ojemen v Momodu II and Others held that when leave is made a condition precedent to filing an appeal must be obtained before the appeal can be entertained. The permission of the Court must be first sought and obtained. The requirement to get the permission/leave of the Court is a requirement that goes to the jurisdiction of the Court. Where leave is required to file a Notice of Appeal and this is not done, the Court will have no jurisdiction to hear the matter. It should be noted that jurisdiction in this context is contingent. The Court will have jurisdiction in a broader sense if all the other jurisdictional requirements are met but in narrow sense will lack jurisdiction.
The requirement to obtain leave of Court is a procedural requirement. It is sometimes provided for in the rules of Court or as in the Nigerian context in both the Rules of Court and the Constitution. The constitutional requirement makes it more difficult for an appellant who is obliged to seek for leave to appeal. The Courts will have no discretion in the matter but to strike out the Notice of Appeal if leave has not been obtained.
The Court of Appeal in England in Cumbs v Robinson held that where leave to appeal is required, a valid notice of appeal cannot be served unless and until leave to appeal has been granted. In Hallmark Bank v Akuluso, the Nigerian Court of Appeal held that where leave to appeal is required, both the leave to appeal and the filing of the appeal must be done within the prescribed time, which in this case was 14 days. The principle is clear therefore that a valid notice of appeal cannot be filed and served until after leave has been sought and granted. In Tunji Bowaje v Moses Adediwura , the Supreme Court held that:
“Where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal after having obtained the leave, within the same period.”
The Court also in Lamai v Orbih held that:
“under the provisions of section 31 (2) (a) of the Supreme Court Act in a case where leave to appeal is required to be obtained a party must not only file his application for leave to appeal within the period prescribed by the subsection but must also file his notice and grounds of appeal having obtained leave within the same period.”
By virtue of section 233(3) of the Constitution of Nigeria 1999, an appeal to the Supreme Court from the Court of Appeal can only be filed with leave of the Supreme Court. An appellant who is appealing to the Supreme Court from the Court of Appeal on points of mixed law and fact must comply with this provision. A similar provision pertaining to appeals from the High Court or the Federal High Court to the Court of Appeal on points of mixed law and fact is also contained in section 242 of the Constitution of Nigeria 1999. These constitutional requirements are sine qua non to the appeal. It is important to understand when to apply section 242 of the Constitution, because an appellant appealing from the final decision of the High Court or the Federal High Court can appeal as of right by virtue of section 241 of the Constitution of Nigeria 1999, in so far as the appeal is filed within three months of the judgment being delivered pursuant to section 258 of the 1999 Constitution.
The distinction being made here is complex and troublesome to counsel involved in appellate practice. Section 242 of the Constitution of Nigeria 1999 comes into play when an appellant is appealing from an interlocutory decision of the High Court or the Federal High Court, in which case, if there are issues of mixed law and fact, leave must be sought and obtained within 14 days pursuant to section 25 of the Court of Appeal Act . If however he is appealing on a point of law alone, he can appeal as of right but must file his Notice of Appeal within 14 days.
The point therefore is that whether or not an appellant intends to appeal on issues of law or mixed law and fact or both or from a final decision of the High Court or the Federal High Court, in so far as he does so within 3 months of the delivery of judgment, he need not obtain leave. The ‘leave provision’ becomes more complex in the sense that the rules of court provide that the leave of the court that an appellant is appealing from must be sought first. In Oguntimehin v Tokunbo , The Supreme Court held that:
“In order for an appellant to appeal against an interlocutory order, the leave of the judge or court who gave the order must first be obtained.”
There is a safety net provision in the rules of court in the sense that if the leave is refused in the lower court, the court which is being appealed to can also entertain the same application. Order 7 Rule 4 of the Court of Appeal Rules 2007 provides that:
“Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which makes it impossible or impracticable to apply to the court below”
Order 2 Rule 28(4) of the Supreme Court Rules has exactly the same provision. Order 7 Rule 3 of the Court of Appeal Rules 2007 and Order 2 Rule 28(3) of the Supreme Court Rules both provide that an application of this nature which has been refused in the lower courts must be brought in the Court of Appeal and Supreme Court respectively within 15 days of the refusal.
In order for the courts to begin to exercise their discretion to grant leave there are certain procedural requirements, which must be compiled by an applicant. The requirements are slightly different in the Court of Appeal because whereas an applicant must file an applicant’s brief of argument in support of an application for leave to appeal in the Supreme Court, in the Court of Appeal he need not file one. Order 7 Rule 7 (a)-(d) of the Court of Appeal Rules mandatorily requires that an application for leave to appeal shall contain;
(a) Civil form 5 duly completed;
(b) A Certified True Copy of the judgment of the Court sought to be appealed from; (c) A copy of the proposed grounds of appeal and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.
Order 6 Rules 2(1) (a)-(h) and Order 6 Rules 2(2), (3), (4) and (5) of the Supreme Court Rules 1999 (as amended) contain mandatory provisions which are similar to the Court of Appeal requirements but include other things such as the requirement to present a brief of argument. It is the opinion of this writer that the strict adherence of these rules is absolutely vital to the proper working of the appellate judicial process. The courts however have in recent times been quite lenient and have in some cases interpreted the ‘leave provisions’ in favour of the appellant.
It is imperative that the rules of Court are followed strictly when an application for leave to appeal is filed. In Clement v. Iwuanyanwu one of the issues before the court was whether it was necessary to exhibit the Court of Appeal judgment to an application for leave to appeal which was before the Court of Appeal that delivered the judgment, the Court held that this was not absolutely necessary. It is submitted that this is a departure from the provisions of the Rules of Court which are very clear that a copy of the judgment shall be attached to the application. And the fact that a judgment is a public document, the rules and that Section 109 of the Evidence Act provides that it has to be a Certified True Copy. The Supreme Court said in this case that the Court of Appeal will not require to be exhibited before it the judgment which was on appeal before it and in respect of which it had pronounced judgment since the court is conversant with the judgment. It must be stressed that it is in very few cases that the application for leave to appeal is heard before the judges that actually sat in judgment over the case. In any event, the principle is that rules of Court are clearly made in furtherance of due process and it is humbly submitted that this is a vital ingredient of the appellate process.
The Court in the exercise of its jurisdiction has over the years enunciated principles or formula that it will follow in the exercise of the discretion. An applicant seeking the leave of the court of appeal would succeed, if he shows that prima facie, he has an arguable appeal. An applicant must show;
(i) That the grounds are substantial;
(ii) Prima facie why the appeal should be heard.
In Holman v Kigo , the Supreme Court held that in order for an applicant to succeed in an application for leave to appeal, it is sufficient if the applicant can show:
(a) a prima facie case that the court from whose decision leave to appeal is sought has committed an error of law.
(b) that the court has failed to exercise its discretion judicially or
(c) and that the court has based the exercise of its discretion on wrong principles.
The Court also held that it is wrong in law for a Court of Appeal to treat an application for leave to appeal as the appeal itself and thereupon decide issues in controversy between the parties in the appeal on their merits without leave having been granted for the appeal to be properly and fully argued.
In Obikoya v. Wema Bank, Obaseki JSC stated that:
“The Grounds of Appeal required to be exhibited are only to show good cause why the appeal should be heard. The rule does not require the grounds to show cause why the appeal should be allowed. Although in both cases, the Grounds of Appeal should be substantial, the certainty required in the latter does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of facts and law for the consideration of the court. It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is ground which invokes a serious debate as to the circumstances of the decision of the court below. It is a ground, which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous”.
It is therefore absolutely vital that an applicant satisfies these requirements before the court will exercise its discretion in its favour. In Ojora and others v. Lasisi Ajibola the Supreme Court per Taylor JSC stated that:
“In doing so we would like to point out that the granting of leave to appeal is not automatic. It is within the discretion of the particular court to grant or to refuse the application or to grant on one or more points of importance and refuse leave generally on fact”
The ‘leave provision’ is also extremely important in the appellate practice and procedure in England and Wales and it is important that some of the requirements contained in their Rules of Practice are compared with the Nigeria ‘leave requirements’. By virtue of section 1, volume 2, part 17 of the Administrative of Justice Act 1934 and Order 59/1/64 of the Supreme Court Practice 1997, appeals from the Court of Appeal to the House of Lords lies only with leave of the Court of Appeal or the House of Lords. The ‘leave requirement’ is both pursuant to the rules and statutes. Order 10 Rules (1) and (2) of the British Supreme Court Rules 2009 provide that:
“Every application to the Court for permission to appeal shall be made in the appropriate form. An application for permission to appeal must be made first to the court below, and an application may be made to the Supreme Court only after the court below has refused to grant permission to appeal.”
Section 2 of the Administration of Justice Act 1960 provides that:
“an application for permission to appeal to the Supreme Court in a case involving civil contempt of court must be filed within 14 days, beginning with the date on which the application for permission is refused by the court below.”
Section 13 of the Administration of Justice Act 1969 provides that:
“an application for permission to appeal to the Supreme Court in a “leapfrog appeal” from the High Court must be filed within one month from the date on which the High Court Judge grants a certificate under section 12.”
The application to the Court of Appeal for leave to appeal to the House of Lords can be made at the hearing of the appeal immediately after judgment has been given. The application can also be made in writing and dealt with by the court on the records without a hearing. This is referred to the Lord Justices that heard the appeal and an order is drawn up, if however, the courts will need oral arguments, it will hear the parties in court. There is a substantial difference between the Nigerian appellate practice in this regard in the sense that, the application is not by the rules required to be made at the hearing immediately after judgment is delivered and also it has to be made by motion on notice supported by an affidavit and several other documents and it is indeed very unlikely that the judges who heard the actual appeal will sit over the application for leave.
It is however arguable that an applicant can pray in aid Order 19 Rule 2 of the Court of Appeal Rules 2007, which allows a departure from the rules in the interest of justice and Order 10 Rule 1 of the Supreme Court Rules which are provisions regarding departure from the rules to apply the English practice herein above discussed. It seems however that there are specific provisions in the rules; it is unlikely that the court will look at the departure from the rules provisions. The courts will however in certain cases apply them in the interest of Justice. It is important to note that there is really no advantage in the application for leave being heard by the justices who heard the appeal because the principles which a court will apply in the exercise of its discretion to grant or refuse leave are clear. The judges must in law apply them judicially and judiciously.
The failure to obtain leave where leave is required is fatal and goes to the contingent jurisdiction of the court. In Akpasobi v. Umweni. The Supreme Court held per Eso JSC that: “It seems to me that the ground of appeal argued by the appellants counsel is one of fact. No leave was given to the appellant either by the Federal Court of Appeal or this court to file a ground of fact. The appellate jurisdiction of this court on questions of facts only exists where there has been leave of the Federal Court of Appeal or this court. No appeal on questions of facts lies to this court without such leave. In other words, whereas it would seem to me in this case questions of facts have been brought before this court without leave, the court has no jurisdiction”
In Knighthood Assurance Consultants Limited v. Meacher , the English Court of Appeal held that a failure to obtain leave is an irregularity and does not render the notice of appeal a nullity. It is however the opinion of the Editors of the English Supreme Court Practices (1999) in Order 39/1/65 that the decision is per incurium and that the requirement for leave to appeal goes to the jurisdiction of the Court of Appeal. I respectfully agree with the opinion of the learned authors because not only is the requirement for leave pursuant to the rules of court, it is also a statutory requirement .
The provisions for the grant of leave in the appellate practice process are so varied that I think it is necessary to examine what may be generally referred to as ‘Other leave provisions’. There are in the rules estimated time within which to obtain leave. An appellant seeking to appeal from an interlocutory decision of the High Court or Court of Appeal on issues of mixed law and fact must file and obtain the said leave within 14 days. This provision is in respect of civil matters. In Bawaje v. Adediwura , the court held that leave must be sought and obtained within the time specified. This requirement is quite stringent and it is not always easy for a busy practitioner to comply. It is also not uncommon for the delays to be caused by the internal administrative process of the court. An appellant in such a situation will need to seek what is referred to as the 3 prayer rule. He will have to pray the court for:
(i) an extension of time within which to seek leave to appeal;
(ii) leave to appeal;
(ii) an extension of time within which to appeal If any of these prayers is missing or is not put in the way it is set out, the application is incompetent and must be struck out. (See Owena Bank Nigeria Plc. v. NSE Limited and Anor).
It must be understood that there is some logic in the insistence by the courts that these prayers must be phrased in the manner hereinabove set out. Where an appellant is required to seek and obtain leave within a certain period and he does not, he must seek the indulgence of the court to extend the time within which he may comply with the said requirement, having been granted that order, he will then be able to seek the actual permission, having been granted permission, he will need to file a notice of appeal which in civil matters pertaining to interlocutory orders ought to have been done within 14 days but because it was not, the third prayer extending time to appeal becomes imperative.
The Court of Appeal by virtue of Order 6 Rule 2(4) of the 2007 Rules and the Supreme Court by virtue of Order 8 Rule 2(5) 1999 Rules (as amended) may with the leave of the court allow an appellant to file and argue a ground not contained in the original Notice of Appeal filed. In Ajuwon v. Adeoti , the court held at page 284 that leave to argue additional grounds is not the same as leave to argue and urge issues not raised in the Court below. Wali JSC said that:
“It is a condition precedent that the points to be raised in the additional ground must have been raised in either of the courts below”
In Oredeyin v. Arowolo the appellant sought leave to argue additional grounds of appeal and thereafter sought to argue a fresh issue, (an issue that was not canvassed in the lower court) as part of the additional grounds of appeal filed. Learned counsel for the respondent did not object to this application in the lower court. In the Supreme Court however, the respondent raised a preliminary objection and the court overruled the objection stating that the respondents was estopped from raising the objection because they did not raise objection in the Court of Appeal when the application was heard and granted. I respectfully contend that this decision is erroneous on point of law. The leave sought to argue additional grounds is quite different from that sought to argue fresh issues on appeal. What an applicant will need to satisfy the court is totally different. Whilst as pointed out in Ajuwon v. Adeoti an applicant seeking additional grounds of appeal will need to relate the said grounds of appeal to the point already canvassed in the lower court, an applicant seeking to raise a fresh issue need not do that. The issue in fact is one, which is being raised for the very first time in the entire history of the case. More importantly, there is no issue of estoppel. It is a straightforward issue of practice and procedure. Estoppel is a substantive doctrine of the law of equity. To the extent that the court used the word estoppel in that manner, I submit with respect that the Court erred, to the extent however that the word is used in normal parlance to mean waiver. I submit that the fact that the ‘leave requirement’ here appears to be a highly significant one in the sense that a totally new point is being raised, it will in my view be imperative that the permission of the Court is first had and obtained. It is submitted that the Supreme Court’s decision in Ajuwon v. Adeoti being later in time ought to be followed and is a reflection of the true position of the law.
The general powers of the appellate courts allow them to receive further evidence in certain situations. Leave of the court however must be sought before an applicant will be allowed to proffer additional documentary or oral evidence in these courts. In Okulate v. Awosanya the Court of Appeal held that fresh evidence would be received:
(a) Where the evidence sought to be addressed is such as could not have been obtained with reasonable care and diligence for use at the trial;
(b) Where the fresh evidence is such that if admitted would have an important but not necessarily crucial effect on the whole case;
(c) Where evidence sought to be tendered on appeal is such as is generally credible in the sense that it is capable of being believed but it need not be incontrovertible;
(d) Where the matter sought to be given in evidence happened after the hearing in the trial court;
Where special grounds is shown to exist for admitting such evidence. The court made it clear that it is not enough for an applicant for leave to adduce fresh evidence or further evidence on appeal to merely show in his affidavit in support that reasonable diligence was exercised or that it is in the interest of justice that the fresh evidence be admitted. He must show the practical steps he took to procure the evidence at the trial and what important effect the additional evidence will have on the case and in what way it could have affected the decision of the tribunal at the original hearing of the case.
It should be noted that the ‘leave provisions’ are applicable to either the appellants or respondents. An appellant in the Court of Appeal or the Supreme Court may seek leave to argue an appeal on the basis of papers filed, not waiting for the records to be compiled. It normally takes a longtime for the registry of the court to prepare the records and indeed not everything in the records might be deemed necessary for the resolution of the appeal. In Afolabi v. Igunbor the Court of Appeal stated that the purpose of appeal on the basis of papers filed by the appellant as in the instant case was not to wait for the time it would take the Registrar of the High Court to compile the records of proceedings. The court said further that a respondent in opposing such an application must show that the record compiled by the appellant is inaccurate and not authentic. It was held that the respondent cannot choose the record for which he is prepared to argue the appeal. If however, he intends to file additional relevant documents he may seek the leave of the court to do so.
There are other ‘leave provisions’, which are quite complex and are the subject of conflicting decisions of the Supreme Court. In the normal course of a trial (especially civil) it is not uncommon that interlocutory matters are taken and are ruled upon. The fact that they are ruled upon means that it is a “decision” as defined by section 318 of the constitution of the Federal Republic of Nigeria 1999. It means therefore that an appellant seeking to appeal must do so pursuant to section 24(2) (a) of the Court of Appeal Act within 14 days. It is however not uncommon for the party to decide to appeal at the conclusion of the entire case. In Tijani v. Akinwumi , the Supreme Court held that where an interlocutory ruling was not appealed against at the time of the ruling, the party can at the end of the case appeal against it but he must obtain leave to do so. Akpata JSC (of blessed memory) stated this:
“I hold the view that in a situation such as this, it behoves the appellant to at length seek leave to argue the ground relating to such an interlocutory order or ruling. A more acceptable procedure has been for the appellant to file an application for extension of time to seek leave and to appeal against the interlocutory ruling or order if he has valid seasons for the tardiness or neglect”
In White v. White , Jessel MR said that the rule that the powers of the Court of Appeal in respect of an appeal should not be restricted by reason of an interlocutory order from which there has been no appeal, was only intended to prevent the right of an appeal from being interfered with by the existence of an interlocutory order which incidentally involved a decision on the point. Lord Justice James stated that:
“It was never intended that an interlocutory order which amounts to a finding or a verdict should be open to appeal after the twenty one days because the time for appeal from the final order on it has expired”.
It is submitted that this is the proper position of the law regarding the point. The Supreme Court however in two recent cases Ilabuch v. Ebigbo and Dr. Iweka v. SCOA has taken a totally divergent position. Ogundare JSC held that it is not necessary for an appellant to seek an extension of time to appeal against the interlocutory decision;
“In the instant case, the fact that there was no appeal against the order for consolidation at the time it was made by the trial court did not preclude the order being questioned in an appeal before the Court of Appeal against final judgment”
I think that there is no doubt that the decision can be questioned at the conclusion of the entire case but to the extent that it says that the appellant does not seek an extension of time to do so, I respectfully disagree and adopt the reasons contained in Tijani v. Akinwumi and White v. White . It is absolutely vital that Counsel involved in appellate practice understand the leave provisions. It is my humble view that all appeals should by way of leave and that this threshold requirement should be the vital component of our appellate practice. It will flush out frivolous applications and reduce the workload of the Appellate Courts making way for a constructive appellate judicial process. It is my view also that the right of appeal as stated in Section 241(1) (a)-(f)(i)-(v) of the Constitution is not automatic. The Judges can within the current Court of Appeal and Supreme Court Rules take a strict approach to examining whether grounds are substantive and arguable grounds of appeal. This approach will reduce frivolous applications to appeal and will whittle down the all pervasive idea of an automatic right of appeal.