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22 Jan

CIVIL WEEK 16: APPEALS

WEEK 16.

APPEALS.

Under OR 1 R 5 CAR[1], an appeal means filing notice of appeal.

A dissatisfied litigant asking an appellate court to examine the decision of a lower court and determine its correctness.

Appellate jurisdiction is conferred by statue[2] (CFRN, Statute Creating the Court, etc.)

:: RIGHT OF APPEAL AND APPEAL WITH LEAVE OF THE COURT.

The right to appeal is as prescribed or determined by the applicable laws.

The right to appeal can be exercised by a party to the case or any other person having an interest in the matter. Provided in the latter case, the leave of the court is sought and obtained.

The right of appeal may be either as of right or with leave of the court. See Criminal Litigation Note.

Appeal as of right is in instances provided by the law wherein leave need not be sought.

Appeal with leave requires permission of the court to appeal. Such leave is usually granted where 1. The question is one of general importance decided for the first time or 2. Where the complaint is substantive and arguable.

:: PROCEDURE FOR APPEALS AND EXTENSION OF TIME TO APPEAL.

Note filing and other fees would be paid. Filing fees is a condition precedent to assuming jurisdiction[3]

First; if leave is required, the person seeking to appeal should apply for leave to appeal (exparte or on motion) in the High Court (that gave the decision). The application should be accompanied by –Duly completed Form 5 (notice of motion for leave to appeal), CTC of the HC judgement sought to be appealed against, – Copy of proposed grounds. If rejected, same application (along with a copy of the order of the HC refusing the application) should be made to CofA (on notice this time) within 15 days from refusal. Ojora v Odunsi

Second: a Notice of Appeal (Form 3 Schedule 1 CAR 2011) is filed at the High Court (although it is headed “in the Court of Appeal”) within 14 days OR 3 months from the date of the interlocutory OR final decision respectively. (S 24 Court of Appeal Act 2004).

The Notice of Appeal must; –concisely[4] state the grounds of appeal[5] which must be premised on either a misdirection in law or error in law[6]… with particulars[7]-Okorie v Udom, -State whether it is the whole or a (specified) part of the judgment that is appealed against, exact nature of relief sought and names of parties directly affected by the appeal.

Grounds not put cannot be argued on appeal except with leave of the court by Notice of Motion, affidavit and address.

Note that the issue of jurisdiction can be raised at any time.

Where prescribed time limit has elapsed, an application for extension of time within which to file the notice of appeal[8]) is made to the Court of Appeal (by motion on notice supported by affidavit setting forth good reasons for failure to appeal within time and written address) The court then considers whether reason is genuine and whether appellant has prima facie good grounds of appeal-Yesufu v Cooperative Bank. Then grants where deserving.

Next: Registrar of the HC serves both appellant and respondent mentioned in the NOA a true copy of the NOA. Within 30 days, Respondent must file 20 copies of notices of full address for service and same would be forwarded to the Registrar of the CofA and subsequent correspondences would be made via this medium.

Next: After Registrar Below has served notice of appeal, he shall compile and transmit the 20 copies of ROAto the registrar of COA within 60 days (7 days if interlocutory) together with certificate of service of NOA, the case’s case file. Parties should be notified that ROA[9] has been sent to COA.

In doing this, parties would be summoned to settle records (I,e, documents to be included in the ROA) and fees would be fixed.

If registrar fails to do his job above (within his 60 days) the appellant has 30 days to compile the record and give the registrar to certify. He may start the compilation before the registrar’s 60 days elapses. Failure to compile and transmit records may be fatal as respondent may by notice of motion move the CoA to dismiss appeal in accordance with Or 8 R 18. Although it may be restored in deserving circumstances.

Once Registrar of the COA receives ROA, the appeal is said to have been “entered”-Okotieboh v Jadesimi. Registrar may require appellant to deposit a sum of money for the due prosecution of the appeal and payment of costs. F and S Government and its agencies are exempted from fees.

BRIEF OF ARGUMENT (Still in the stages): is a written succinct statement of counsel’s argument on appeal within which binds him- Adewunmi v Plastex Nigeria Ltd. introduced to CA in 1977.

The BOA should (in < 30 pages (or more with leave of court), A4, 12 font TNR) contain – Heading (court, parties, appeal number, title); – Table of Contents; -Introductory/preliminary Statement (i.e. which court, whose judgment, what date, appeal against full or interlocutory matter, who is appealing); Issues arising for determination;  – statement of facts; Argument of Issues; – Conclusion/summary; – List of Legal Authorities; – Name of counsel, signature and date of brief; -Address(es) for service.

Check Criminal Litigation Note.

Appellant must within 45 days of receiving the ROA from the HC file (20 copies of) his brief of argument[10]. Then respondent files his own brief within 30 days of service of appellant’s brief on him (answering material points in appellant’s brief. Then appellant may within 14 days of service of respondent’s brief (but not later than 3 days before hearing date) file his reply to the brief to deal only with new points raised in respondent’s brief or argument otherwise he may be said to impliedly admit.

Issues for determination is different from grounds of appeal the grounds accentuate the defects in the appealed judgment while issues state reasons for the defect. The issues should flow from grounds-Ikemson v State. Appeals are argued from issues for determination not grounds.

Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant 3 clear days notice before the hearing setting out the grounds of objection (Form 11 Order 10 Rule 1 CAR 2011.

Next: Hearing is by brief of argument. Counsels adopt their written briefs of argument and 40 minutes oral argument is allowed.

Appeallant is heard only in respect of ground contained in the notice of appeal which can be amended after paying the requisite fees. Additional evidence which ought to have (and can) reasonably been obtained for use at trial should not be allowed on appeal. Fresh evidence is only allowed in special and deserving circumstances.

BOA can be amended where deserving by notice of motion supported by an affidavit and written address. May pay costs though.

Judgment should be delivered in writing not later than 90 days after conclusion of evidence and final addresses. Non-compliance would not vitiate unless there is substantial miscarriage of justice. Note 294 CFRN’

Check Criminal Litigation for delivery of judgment.

Note the CAMP (Court of Appeal Mediation Programme) where purely civil appeals dealing with liquidated money demand, matrimonial causes, child custody, other matters agreed by the parties can be referred to CAMP

TRINITY PRAYERS: for extension of time to seek leave to appeal, leave to appeal and extension of time within which to file Notice of Appeal-Registered Trustees of CAC v Uffiem.

Withdrawal or abandonment of appeal: Serve written notice to registrar and parties in this regard. Withdrawal with consent of the parties would bar further proceedings.

Appeal from COA to SCourt is largely the same as hitherto discussed. Just that brief of Arguments is 10 weeks – 8 weeks – 4 weeks and 10 copies of brief.

Read Criminal Litigation Note for Appeal as of Right etc. note however that COA judgments on decisions from NASS and SHOA Election Petition Tribunals are final and cannot be appealed against.

At least 5 Justices of Scourt should sit (7 for constitutional, FHR matters and Original Jurisdiction) then one can deliver judgment-294(4) CFRN. Note that respondent notice has been disallowed in SCourt. Respondent has to cross-appeal.

:: RESPONDENTS NOTICE AND CROSS-APPEAL (EXPLAIN AND DISTINGUISH).

A respondent who wishes to contend on appeal that the decision of the lower court should be varied (in whole or in part) or that it should be affirmed on grounds other than that relied upon by the trial court, he must file a respondent’s notice in Appeal Form 10A or 10 B respectively. Respondents notice must be served within 15 days or 30 days respectively (for interlocutory and final judgments respectively) after service of the notice of appeal on him-9 CAR. Eloichin v Mbadiwe.

CROSS-APPEAL: where respondent is dissatisfied with a specific finding which he believes is fundamental to his case-Obasanjo v Buhari. Lagos City Council v Ajayi.

NOTICE OF PRELIMINARY OBJECTION: Object to the hearing of the appeal at least 3 days to the appeal.

:: DRAFT NOTICE OF APPEAL AND BRIEF OF ARGUMENTS.

[1] CAR fro m1981, 1984, 2002, 2007, 2011 and 2016.

[2] Customary Court of Appeal (3 Judges), Sharia Court of Appeal (S277 CFRN > 3 Judges), HC (appeals from Magistrate Court (south) and District Court (North) (272(2) CFRN. Note that absolute court order for nullity of marriage is not appealable against but the NISI can be appealed against.

[3] Appears to be 5k under CAR 2011. Check CAR 2016.

[4] Except the general ground that the judgment is against the weight of evidence.

[5] Reasons why appellant challenges decision. It may be on law, fact or mixed. E.g. assessment of evidence is fact? Construction of term of contract is law?

[6] The former more like on mistake while the later more like misalpplicatoin of law e.g. wrongful admission or rejection of evidence. It cannot be both.

[7] No need for particulars where the ground is the omnibus ground that the “Judgment is against the weight of evidence”.

[8] Application for extension of time to seek leave and application for leave to appeal can be added making it a trinity prayer. TP saves time and short circuits the process.

[9] ROA should contain statement by registrar of HC giving brief particulars of the case and a schedule of fees paid, copies of doc, copy of NOA and other documents filed in connection with the appeal, Certificate of service of NOA, Certificate that conditions imposed by the HC and Registrar have been fulfilled, 20 copies of the record? Case file in the HC containing all papers and docs filed by the parties in connection with the case at the HC.

[10] Failure may make respondent apply for dismissal for want of prosecution.

Isochukwu

Quite eccentric really

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