Jurisdiction, rights of appeal and procedure of Court of Appeal
The Court of Appeal, like all other courts of records in Nigeria, is a creature of the Constitution from which it also derives its jurisdiction. It is mainly an appellate court having very limited original jurisdiction which vests exclusively on it the power to hear and determine any question relating to the election, terms of office or vacancy of the office of the president and vice – president. In Egbe v. Adefarasin, Oputa, JSC (as he then was) stated that “…this court, as well as the Court of Appeal, are appellate courts. They do not try issues. Rather they examine the way issues had been tried by trial courts in order to ensure that the case was properly tried.”
The appellate jurisdiction of the Court of Appeal is conferred on it by the Constitution and various Acts of the National Assembly. Under the provisions of the Constitution, exclusive jurisdiction is conferred on the Court of Appeal to hear and determine appeals from the Federal High court, the High Court of the Federal Capital Territory, Abuja, High Court of a state, sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a state, Customary Court of Appeal of the Appeal of the Federal Capital Territory, Abuja, and Customary Court of Appeal of a state.1 Jurisdiction is also conferred on the Court of Appeal to hear and determine appeals from decisions of court martials and other tribunals by certain Acts of the National Assembly such as the Armed Forces Act, 1993; Institute of Chartered Accountants of Nigeria Act, 1965; and Medical and Dental Practitioners Act, 1988. The Court of Appeal is the penultimate court under our legal system, being the next in the hierarchy of courts to the Supreme Court, the apex court.
The right of appeal to the Court of Appeal
The right of appeal to the Court of Appeal is conferred by the Constitution, which provides thus: “243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be – (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, an in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney – General of the Federation or the Attorney-General of a state to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed. (b) 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 Court of Appeal.”
From the above provisions of the Constitution, it is clear that the parties to civil proceedings whose interests are directly involved in the subject matter have unfettered right to appeal against the final decision in such proceedings to the Court of Appeal within the time allowed. However, under the same provisions, persons who are not parties but having an interest in the matter would require the leave of the trial court or the Court of Appeal. There are, therefore, two categories of persons who are eligible to appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court namely, the actual parties whose interests are directly involved and have participated in the proceedings; and also those who are not actual parties and have not participated in the proceedings, but have vested interest in the matter and are referred to as “Persons Interested.
In the locus classicus case of Re: Madaki the Supreme Court of Nigeria per Uwais, JSC (as he then was) while interpreting the provisions of Section 222 of the Constitution of the Federal Republic of Nigeria, Cap. 62 of the Laws of the Federation of Nigeria, 1990, which is in pari materia with the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 stated as follows:
“By the provisions of section 222 of the Constitution of the Federal Republic of Nigeria, Cap. 62 of the Laws of the Federation of Nigeria, 1990, only a party to civil proceedings can appeal to the Court of Appeal without any inhibition on his capacity to do so. Any other person who has interest in a case but is not a party to the case, cannot appeal in the proceedings, until he obtains the leave of either the High Court from which the case is being appealed or the Court of Appeal to which the appeal is to be brought.”
In Assams & Ors. v. Ararume & Ors., the interpretation of the provisions of Section 243(a) of the Constitution also came up before the apex court. Ogunbiyi, JSC (as he then was) stated succinctly the two categories of persons who may appeal from the decisions of the Federal High Court or High Court to the Court of Appeal and their respective rights of appeal as follows:
“The two categories of persons the preceding provision who are predisposed of exercising the right of appeal are, the parties to the proceedings themselves whose interests are directly involved; and also those who, although not parties, have vested interest in the matter and are otherwise known as “Person Interested.” In other words, while parties can appeal as of right, persons interested can do so only with the leave of either the Federal High Court or High Court or the Court of Appeal as the case may be.”
The Constitution provides that an appeal shall lie from decisions of Federal High court or a High Court to the Court of Appeal as of right in the following cases. (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. (c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this constitution has been, is being or is likely to be, contravened in relation to any person; (d) decision in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; (e) decision made or given by the Federal High Court or a High Court- (i) where the liberty of a person or the custody of an infant is concerned; (ii) where an injunction or the appointment of a receiver is granted or refused; (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise; (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and (v) in such other cases as may be prescribed by any law in force in Nigeria.
It is discernable from the provisions of Sections 240, 241(1) & 243(a) of the Constitution that an appeal to the Court of Appeal shall be in the form of a complaint against a specific decision of the Federal High Court or a High Court. The interpretation of the word ‘decision’ is provided under the Constitution to mean, in respect to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.2 The apex court in The Minister of Petroleum Resources v. Expo Shipping Line (Nig.) Limited held that an appeal is substantially a complaint against the decision of a trial court.
In Tijani v. FBN Plc, the Court of Appeal held that an administrative decision is not appealable. Delivering the leading judgment in the appeal, Oseji, JCA held that a letter by the Chief Judge of Lagos State refusing a request by a party to a suit for a transfer of the suit from one judge to another through a letter did not fall within the ambit of the meaning of the word ‘decision’ as contemplated under the Constitution. The Learned Justice of the Court of Appeal further held that an appeal cannot lie against an administrative act of the Chief Judge done not while presiding over the matter in court as his lordship was not acting in a judicial capacity.
Initiating an appeal to the Court of Appeal and proper venue to file a notice of appeal
An appeal from the Federal High Court or a High Court is by way of a Notice of Appeal. The Court of Appeal Act provides that a person who desires to appeal to the Court of Appeal shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the Rules.
The Court of Appeal Rules, 2016 provides that all appeals shall be brought by way of a Notice of Appeal to be filed in the Registry of the court below which shall set forth, inter alia, the grounds of appeal and the reliefs sought. The exception to this Rule is where the Records of Appeal has been compiled and transmitted to the Court of Appeal and parties have been duly served, in which case the appeal has been entered and the Court of appeal has become seised of the whole proceedings.
Obi (SAN), Managing Partner, Alliance Law Firm writes from Lagos with contribution from Theo Ochonogor.