Appealing a judgment is simply to invite a higher Court than the Court that adjudicated and gave judgment on a matter, to find out whether the lower Court arrived at a correct decision after evaluating and considering the facts before it and the applicable laws. This article seeks to give an overview of appeal and how to appeal a judgment in Nigeria.
Appeals involve proceeding from the judgment of a trial court to an appellate Court or from one appellate Court to another appellate Court. Appeals are important because it affords a litigant who is not satisfied with a judgment or who judgment was not in favour of to file an appeal and also there is a realization that judges are human and they can be wrong in their judgments. Thus, appeal creates an opportunity to give another set of judges the right to assess the decision of a lower judge. A party who files an appeal is called an Appellant and the party whom it is filed against is called the Respondent.
The laws applicable to appeals in Nigeria are; the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Court of Appeal Act, and the Court of Appeal Rule 2011.
Party to an Appeal matter
Section 243(1) (a) of the 1999 Constitution provides for only two (2) categories of persons who can exercise the right of appeal in civil cases. They are:
- Any party on record, which is the party to the proceeding whose name appears on the process.
- Any non-party interested in the matter with leave of the trial Court or Court of Appeal. In this instance, where a party claims to be an interested party, he must show that his interest is affected by the decision he wants to appeal against. Failure to obtain leave of Court before appealing as a non-party having an interest in the matter renders the appeal incompetent.
Right to file an Appeal in Nigeria
The right of a litigant to file an appeal at the appellate Court is divided into two categories which will be briefly discussed, namely;
- Appeal as of Right, and,
- Appeal with the leave of Court (that is with the leave or consent of either the lower or appellate Court).
Appeal as of Right
It is important to know the instances to file an appeal as of right because the processes to file at the appellate Court depends on whether the appeal is as of right or with the leave of the Court. The following are the instances of filing an appeal as of right in civil matters which does not require the leave of Court as provided by Section 241(1)(a)-(f) of the 1999 Constitution exclusive of paragraph (e) which applies to applies only criminal matters. These instances are:
- Final decisions in any civil or criminal proceedings before the Federal High Court, High Court (state or FCT), and National Industrial Court sitting at first instance. The decision must be final and the Court must have sat as a Court of first instance in the case.
- Where the ground of appeal involves questions of law alone arising from any civil or criminal proceeding. It is immaterial whether the decision was final or not.
- Decisions on interpretation or application of the 1999 Constitution.
- Decisions as to whether any provisions of Chapter IV of the 1999 Constitution has been, is being, or is likely to be contravened in relation to any person.
- Decisions where the liberty of a person is concerned or the custody of an infant.
- Where an injunction is granted or refused.
- Where the appointment of a receiver is granted or refused.
- Decision determining the case of a creditor or the liability of a contributory or other officers under any enactment relating to companies.
- In the case of a decree nisi in a matrimonial cause.
- A decision in an admiralty action determining liability.
Appeal with the Leave of the Court
In this case, the right of appeal is not as of right, but can only be exercised by leave of Court. The leave required here is the leave of either the trial Court or the Court of Appeal. That is, the leave must be that of the Federal High Court, State High Court, High Court FCT, National Industrial Court (depending on which one handled the case), or that of the Court of Appeal. Where the right to file an appeal is by leave of Court, the power of a judge to grant leave to appeal is discretionary.
The instances for filing an appeal with the leave of the Court are provided in Section 241 of the 1999 Constitution as follows;
- Matters not coming under section 241(1) CFRN, appeal in such cases requires the leave of Court.
- When consent judgment is given by the Court.
- Filing an appeal as to cost only. Award or non-award of cost.
Commencement of an Appeal
The appropriate time to commence and file an appeal for an interlocutory decision is within fourteen (14) days after the decision as provided by Section 24(2)(a) Court of Appeal Act and in the case of a final judgment, the appropriate time to file an appeal is within 3 months after the judgment was delivered.
Where a party is out of time to file an appeal, he can file an application for an extension of time to seek the leave of the Court of Appeal. Only the Court of Appeal is empowered to extend the time for filing an appeal and not the High Court (trial Court) as provided by Order 7 Rule 10 of the Court of Appeal Rules 2011.
Procedure for application for Leave to Appeal
By the provisions of Order 7 Rule 4 of the Court of Appeal Rules 2011, application for leave to appeal must first be made to the lower Court (High Court or Federal High Court) whose decision is being appealed against except if there are special circumstances which makes it impossible or impracticable to apply to the lower Court. In such cases, the application may then be made first to the Court of appeal.
The application to the lower Court is usually by a Motion Ex parte. However, the Court may order that the other party be served or may grant or refuse the application.
Where the application for leave to appeal is refused by the lower Court, then by the provisions of Order 7 Rule 3 of the Court of Appeal Rules 2011, a similar application may be made to the Court of Appeal within fifteen (15) days of such refusal by the lower Court.
By Order 7 Rule 2 of the Court of Appeal Rules 2011, an application to the Court of Appeal for leave to appeal, other than an application made after the expiration of the time for appealing, shall be by Motion on Notice, which must be served on all the affected parties.
By the provisions of Order 7 Rule 7 of the Court of Appeal Rules 2011, the application shall consist of the following documents:
- Motion on Notice (Civil Form 5).
- Certified True Copy of the decision of the lower Court sought to be appealed against.
- Certified True Copy of proposed grounds of appeal.
- Where leave has been refused by the lower Court, then a Certified True Copy of the Order or ruling refusing leave to appeal.
Notice of Appeal
An appeal is lodged in the Court of Appeal by means of a Notice of Appeal. The Notice of Appeal, though headed in the name of the Court of Appeal, is filed in the Registry of the High Court or Federal High Court, or National Industrial Court that gave the decision appealed against. By the provisions of Order 6 Rule 2(1) of the Court of Appeal Rules, it must contain the following:
- Part of the decision complained against. It must state whether it is the whole or only part of the decision of the lower Court is complained against. Where the complaint is against only a part of the decision of the lower Court, the relevant part must be specified.
- The grounds of appeal and particulars of error- A ground of an appeal is a complaint on an issue of fact or law or procedure which if upheld will lead to the appeal being allowed. It must be valid and raise serious questions to be considered on appeal. The grounds of appeal are not considered alone, particulars must be supplied along with it. Reliefs sought: It must also state the exact nature of the reliefs
- Persons interested in the appeal: the names and addresses of all the parties affected by the appeal.
- It must have an address for service
By the provisions of Order 6 Rule 2(3) Court of Appeal Rules, 2011, a Notice of Appeal should set forth concisely and under distinct heads, the grounds of appeal which the appellant intends to rely on at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
After the Notice of appeal has been filed, the Registrar will serve a true copy of the notice on each person mentioned in the notice within thirty (30) days after receiving service of the notice of appeal.
The Effect of Filing an Appeal
The effect of filing an appeal is provided by Order 4 Rule 11 of the Court of Appeal Rules to, the effect that “after an appeal has been entered and until it has been finally disposed of, the Court of Appeal shall be seized of the whole proceedings as between the parties thereto and except as may be otherwise provided by the Court of Appeal Rules, every application made in the proceedings shall be made to the Court of appeal and not the trial Court”.
Record of Appeal
Once an appellant or an interested party has filed a Notice of Appeal, the Registrar of the lower Court is required to compile the record of appeal and transmit it to the registrar of the Court of Appeal within 60 days after its filing as provided by Order 8 Rule 1 of the Court of Appeal Rules.
The record of appeal is the entire document necessary for the determination of the appeal at the Court of appeal. If the Registrar of the lower Court fails to within 60 days compile the record of appeal, the appellant is to compile the records of all documents and exhibits necessary to his appeal and transmit same to the Court of Appeal within 30 days as provided by Order 8 Rule 4 of the Court of Appeal Rules.
Where both Registrar of lower Court and appellant failed to compile the records and transmit same, the respondent may by notice of motion move the Court to dismiss the appeal as provided by Order 8 Rule 18. An appeal is entered when the record of appeal has been transmitted to, received, and entered in the cause book of the Court of Appeal and when an appeal has been entered, the lower Court ceases to have jurisdiction.
A respondent who agrees with the decision of the trial court, which is in his favour, but who also wishes can urge the Court of Appeal that the judgment should be affirmed or varied on other grounds other than those relied on by the trial judge in reaching the decision. To achieve this, the respondent is required to file a Respondent’s Notice in Praecipe Form 10 B. The notice must specify the grounds for the contention and the precise form of variations which he proposes the Court of appeal to make as provided by Order 9 Rule 1 & 2 of the Court of Appeal Rules.
By the provisions of Order 9 Rule 4 of the Court of Appeal Rules, where it is an appeal against an interlocutory decision, the respondent’s notice must be filed and served on all parties to the proceedings in the High Court who are directly affected by the Respondent’s contention, within fifteen (15) days of the service of the Notice of Appeal on the respondent and where it is a final judgment, the respondent’s notice must be so served within thirty (30) days of the service of the Notice of Appeal on the respondent.
Furthermore, where the respondent fails to file the respondent’s notice, Order 9 Rule 3 of the Court of Appeal Rules provides that he will not be heard praying for a variation or affirmation of the decision on grounds other than those relied on by the trial Court, except by leave of the Court of appeal.
The above gives a clear overview of how to appeal a judgment in Nigeria and the various procedures to be considered and followed for the filing of the appeal to succeed.
Finally, every appeal is heard by way of a rehearing as provided by Order 6 Rule 2(1) of the Court of Appeal Rules. A re-hearing is simply the reconsideration of the case on the printed evidence and not a re-trial and in appeals, the appellate court will not set aside or interfere with findings of fact of the trial court except if it is so perverse and not supported by the evidence admitted and on the record as held in the case of Onukogu v. Onuigbo & Ors (2015) LPELR-24574(CA).
By Winifred Idiaru, an Associate at Resolution Law Firm