APPELLATE PRACTICE AND PROCEDURE
A party that intends to appeal against a decision of the High Court or the Court of Appeal must file a competent notice of appeal. This is the procedural way of invoking the jurisdiction of the appellate court. It can be compared
with the process and procedure of filing a writ of summons or an originating process in the lower courts.
The notice of appeal is filed in the court from which a party is appealing. This is a procedural requirement and it is logical in the sense that the party wishing to appeal is giving notice to the court that its decision will be challenged on appeal. An appeal is brought when the notice of appeal is filed in the registry of the court below Order 3 rule 5 . There is of course the added requirement that all the parties involved must be served the notice of appeal.
In Oyebare v Ajayi , the Court of Appeal held that the filing of a notice of appeal in accordance with Order 3 rule 2 and civil form 3 is a necessary prerequisite for the beginning of an appeal and failure to comply with the Rules would lead to the termination of the appeal. In effect, the appellate jurisdiction of the Court of Appeal is initiated by the filing of a notice of appeal which must set out the grounds of appeal.
In Ogunremi v Dada , the Supreme Court stated that an appeal is brought when the notice of appeal has been properly filed in the registry of the court below, and an appeal is entered when the appeal court has received the records of appeal.
It is important to appreciate the difference between when an appeal is brought and when it is entered. A failure to do so might render an appeal incompetent. In Oge v Ede , the Court of Appeal stated that: “The notice of appeal against the judgment complained of is the real and constitutional signal of dissatisfaction against the judgment. It is no doubt the foundation of the appeal.”
Order 8 rule 2(1) states quite clearly that all appeals shall be brought by notice. The notice of appeal is to be filed in the registry of the lower court (Court of Appeal) and the said notice of appeal must contain competent grounds of appeal.
In Oge v. Ede (1995) The court of Appeal held that there is no valid notice of appeal except it contains at least one very well competent ground of appeal.
The recent authorities seem to suggest that defects in the notice of appeal which does not touch the grounds may sustain the notice. In Oronye onwomali v. The State . A notice of appeal which was headed “In the High Court of Imo State” was held to be incompetent by the Court of Appeal. In Ikpasa v. The State , the Supreme Court per Udoma JSC at page 3135 held that an appellate court ought in the interest of justice to proceed to entertain an appeal on its merits notwithstanding that the notice of appeal was wrongly headed. In Okpalla v. Ibeme , Nnaemeka Agu JSC stated. “The notice of appeal filed with the leave of court did not contain the relief sought. This was clearly in contravention of the provisions of Order 8 rule 2 of the Supreme Court Rules 1985, and contrary to Form 12. When this point was brought to the notice of counsel for the parties after conclusion of their arguments, Senator Anah for the appellants orally applied to amend the notice of appeal in order to include the relief sought. Mr. Ezueko, for the respondent did not oppose the application.”
His Lordship held and the court concurred that in the interest of justice the application ought to be granted because the appeal had been fully argued.
The progressive move by the courts towards the attainment of substantial justice rather than an over reliance on technical Rules is to be commended but it is with respect submitted that this course must be followed with caution. In Okpalla v Ibeme , it can be forcefully argued that if there is no relief sought, the court has no jurisdiction. If the appellant is not seeking any relief, the court’s time is being wasted, the objection is technical, but it is a sound procedural objection. It can, in my opinion, be rightly argued that the relief sought is an important part of a notice of appeal. The appellants in Okpalla v Ibeme were lucky to have gotten away with this very important objection.
The authorities seem however to stress that only defects in the grounds of appeal can lead to a notice of appeal being struck out. In Adesina v Obala , the Supreme Court held that as long as there is one competent ground of appeal, the notice of appeal can be sustained. The court will strike out only those grounds that are incompetent. If all the grounds are incompetent, then the whole notice of appeal will be struck out.
In other to clothe the appellate court with jurisdiction, an appellant must comply with the time frame prescribed for the filing of the notice of appeal. Section 25(1)(2)(a)(b)(c), (3) and (4) deals with the time period within which a prospective appellant may file a notice of appeal.
Section 25(2)(a) provides that
“The periods for giving of notice of appeal or notice of application for leave to appeal are:
a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
b) In an appeal in a criminal case or matter, ninety days from the date of the decision appealed against.”
Section 27(2)(a)(b) contains similar provisions with Section 25(2)(a) hereinabove stated with regard to the filing of a notice of appeal by an appellant who wishes to appeal from the Court of Appeal to the Supreme Court.
If a prospective appellant does not comply with the time frame prescribed by the Act, any notice of appeal filed after the time frame is invalid. There are however provisions allowing the courts to extend time within which an appellant may file a notice of appeal provided certain requirements are met. Section 25(4) and Section 27(4) referred to above gives the court discretion to extend the periods prescribed. The application must however give:
i. Good reasons why a notice of appeal was not filed within time
and ii. Show that the grounds of appeal raise substantial issues of law. It must be noted that these requirements are conjunctive not disjunctive. The two requirements must be met by the applicant. Mohammed v Olawumi , the Court of Appeal held that a notice of appeal filed before the court grants leave to appeal was invalid.
It is important to note that if the time for filing a notice of appeal has not expired, an appellant can withdraw his first notice and file another. In Tukur v Governor of Gongola , the Court of Appeal held that he can even file more notices and grounds of appeal in addition to the earlier one filed and either use all or adopt one. It is, in my opinion, neater to use one notice especially if the appeal is against one judgment.
What is the effect of the filing of a notice of appeal? The immediate effect is that it brings to t he notice of the court whose judgment is been questioned that an appeal is been lodged to a higher court. It also brings to the notice of all parties concerned in the litigation that the matter is being appealed. Section 18 , states that: “An appeal under this part of the Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.”
It is important therefore for a prospective appellant to know that an order for stay of execution can be gotten from the lower court or the court being appealed to. Section 24 has similar provisions with regard to the effect of the filing of a notice of appeal in the Court of Appeal in an appeal to the Supreme Court.
An appellant may wish to amend his notice of appeal with regard to form or substance. Counsel may on perusal of the records realize that it is in the best interest of the appellant to amend the notice. Order 3 rule 16 and Order 8 rule 4 gives the Court of Appeal and Supreme Court power respectively to grant leave to any party to amend a notice of appeal at any time. In Perry v St. Hellens , it was held that the discretion must be exercised judiciously and judicially. See also Lauyers v Joxebson Ltd. .
It is important to note that the rules of court provide the court of Appeal and Supreme Court with general powers which enables them to sometimes circumvent the very strict application of the rules. The courts of course can also act under its inherent jurisdiction. This course is however taken with great caution and in very exceptional cases.
In Obadiary v Uyigue and Another , the Supreme Court held that in the interest of justice and in order to save time, the court can in its discretion deem an appeal brought out of time as an application for leave to file the notice and grounds of appeal out of time. It also held that the court had power to waive the requirement that notice of appeal be filed in the Court of Appeal. Irikefe CJN said “The appellant in this case had leave within which to file his appeal out of time, but he did not do so. Upon objection being taken by learned counsel, it became clear that the appellant had not properly filed a notice of appeal before us as he had not filed his notice and grounds of appeal within the time stipulated. To this objection, there can be no answer. However, in the interest of justice and in order to same time as would have been wasted by striking this appeal out merely, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that the appeal may be properly before us.
We have accordingly waived the requirement that the notice be filed in the court below”.
It is possible that justice may have been the essence of this very generous exercise of discretion and indeed perhaps justice was attained by the parties involved at the end of it all, but it does not hide the fact that this exercise seems to be in conflict with statutory provisions, and the rules of court. It is conceded that, perhaps in certain circumstances, the strict application of the rules of court may be waived, but there is no doubt that a requirement of statute cannot be waived. It is however consoling to note that the use of by the courts of this generous exercise of discretion is very limited indeed.
In Awote v Owodunni , the question was whether an appeal could be taken in the Supreme Court on an issue which though did not form part of any of the grounds of appeal filed, was raised suo moto by the Court of Appeal and both parties allowed to address extensively on it. Obaseki JSC held that “An appeal court is in exercise of its appellant jurisdiction confined to the grounds of appeal laid before it. It cannot and has no jurisdiction to formulate a ground of appeal by itself although it can take up the issue of jurisdiction if it appears from the record that the court below exercised jurisdiction which it has not got or acted in excess of jurisdiction.”
The approach of the Supreme Court in Awote v Owodunni is quite different from their approach in Obadiru v Uyigue whilst the exercise of discretion as proposed by Irikefe CJN is broad, the approach taken by Obaseki JSC is narrow. The Obaseki approach seems to limit the exercise of discretion only to issues of jurisdiction, which did not form part of the grounds of appeal. Whereas in both cases, the court seems to be exercising their inherent jurisdiction to attain justice, the Awote v Owodunni approach is rather restrained and constrained.
The fundamental principle with regard to the adherence of rules of practice and procedure must in my opinion be adhered to by practitioners otherwise, the apparent liberal interpretation of the rule by the courts will erase them from our procedural law. The principle is clear that the rules are put there to be obeyed. Order 8 rule 12(5) states that “The powers of the court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal has been given in respect of any particular party to the proceeding in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such notice; and the court may make any order on such terms as the court thinks just to ensure the determination on the merits of the real question in controversy between the parties.”
Order 1 rule 20(5) has same provisions. The reason for inclusion of these general powers in the rules of court is obviously to attain the ends of justice so that in very obvious cases injustice will not be done due to strict reliance on the same rules. It is imperative that a restrained, reasoned and constrained approach is taken by the court in its application of these general powers.
The practice and procedure relating to the filing of a notice of appeal and its contents in some common law jurisdiction like that of England and Wales is similar to the Nigerian practice in some respects and it is believed some thins are to be learnt from their practice. In Parish v Birch Bros Dover Ltd , the England Court of Appeal held that an informal notice of appeal if it otherwise complies with the rules is sufficient. Order 59 rule 3(3) states that “The present practice is to accept an informal notice of appeal if it identified the order against which the appellant wishes to appeal and states at least in general terms the grounds of appeal the fact that there are errors in the notice of appeal will not invalidate the notice if its intention is clear and the rules are otherwise complied with.”
In certain rare cases, the Nigerian procedure allows for an informal notice of appeal as well. In fact, the procedure can be sometimes over stretched to attain justice and for expediency. In Abraham Adesanya v President of Nigeria and Anor a matter which was supposed to be a case stated for the interpretation of certain provisions of the 1979 Nigerian Constitution was converted into an appeal. The lower court, the Court of Appeal had certified certain questions on the interpretation of the Constitution to the Supreme Court for determination but the Justices of that court had erroneously determined the questions which they wanted interpreted by the Supreme Court, procedurally the proper thing to do would have been for the parties to appeal against the interpretation given to the issue by the court of appeal. They however put before the Supreme Court the same questions as a case stated. The reference was however deemed to be an appeal.
The dicta of the erudite and learned Justice Idigbe in Anadi v Okoli that a notice of appeal is the very foundation of an appeal and that it must not be defective as to substance must in all cases be the guiding principle. There is however no doubt that compliance with the form and substance as provided for by the rules will depend on many factors.
However, the rules also provide as shown hereinbefore, for instance where the courts have discretion to allow for non-compliance but of course the principles related thereto must be applied in the exercise of this discretion.