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22 Jan

CRIMINAL LITIGATION WEEK 18 (APPEALS 1)

WEEK 18

APPEALS 1

Appeal is where a party seeks to review or reverse any error or omission by a lower court at the higher court.

:: EXPLAIN THE BASIS OF APPEAL: Appellant should have the right to appeal (this right being conferred by statute). From Section 243 CFRN, it is only a party to a case that has a right of appeal. Adili v The State. Appeal should be in sequence through the hierarchy of court… no leap frogging.

: Types of Appeal: may be interlocutory (needs stay to suspend actions in the lower court) or appeal against final judgment.

:: WHAT IS AN APPEALABLE DECISIONS.

:: WHO MAY APPEAL AGAINST A DECISION OF A COURT IN A CRIMINAL MATTER: only the accused or the prosecutor can appeal-Akinbiyi v Adelabu

:: PROCEDURE FOR APPEALS FROM MAGISTRATES COURTS: Section 272 (2) CFRN gives HC appellate jurisdiction over Magistrates’ Court.

No provision requiring leave but note Nwankwo and Anor v The C.O.P. The prosecutor may appeal on the ground that (57 MCLL 2004) an order of acquittal/discharge is erroneous in law; – That the proceedings or any part thereof is in excess of jurisdiction; – That the sentence is below the minimum or above the maximum permitted by law.

Also, before judgment, accused or prosecutor or AG or Magistrate Suo Moto may direct the magistrate (or himself) to refer points arising from the trial or interpretation of CFRN for the opinion of the High Court-Section 259 CFRN, 65 MCLL, R v Eze.

Appeal must be filed within 30 days of the decision (where later, then leave of the MC should be gotten by motion supported by affidavit and reasons for lateness).

Written and signed Notice of Appeal must be given to the registrar of the MC. In CPC (North), NOA can be oral. 280 CPC. Oral notice may be given at the time of pronouncement of judgment before the opposing side leaves the court.

NOA should also be served on the respondent personal or substituted where the former cannot be achieved. If in prison may give notice of appeal to officer in charge of the prison and this is deemed to be the date it is filed-(280 CPC) Notwithstanding that prison authorities delayed.

Where more than one appellant, each must file separate notice of appeal[1].

– In the appellant’s notice of appeal, he must set out the grounds for appeal detailing each error, omission or irregualarity he wishes to argue on appeal. Ground not set out cannot be argued on appeal.

– Where appellant is not a public officer, he must pay the fees for filing the appeal.

– Appellant shall enter into a bond (with or without surety) to prosecute the appeal with diligence, abide by the results and pay costs if any.

– The time and place of hearing the appeal shall be served by the registrar of the HC on all the parties to the appeal.

– (confirm whether before or after) the respondent can reply to the grounds of appeal then appellant can reply points made by the respondent.

The court may allow additional evidence to be adduced on appeal where necessary.

– A criminal appeal shall abate upon the death of the appellant (except it is in relation to payment of fine).

– appeal may be abandoned by appellant giving a written and signed notice of abandonment to the registrar of the court below not less than 2 days before the date fixed for hearing.

Court may dismiss appeal where it feels no substantial miscarriage of justice was occasioned, it may affirm the conviction and sentence or alter the sentence.

:: PROCEDURE FOR APPEALS FROM DECISIONS OF HIGH COURT: note Section 241 & 242 CFRN, Nafiu Rabiu v The State, Or 18 CAR 2011. Appeal may be as of right or with leave of the court[2]

– Appellant shall give written notice of appeal (or notice of application for leave to appeal) personally signed by him[3] to the registrar of lower court for onward transmission to registrar of CofA.

Application can be made for extension of time within which to appeal. Leave can be sought from CofA where HC delays for 14 days. Application for leave is to be made by motion on notice supported by affidavit exhibiting the grounds of appeal. Where notice of appeal is not filed, the appeal will be struck out-Amusa v The State.

Appellant must file NOA within 90 or 14 days for final judgment and interlocutory judgment respectively. Where he is out of time, he should also file for extension of time within which to appeal[4].

– The HC registrar compiles record and transmit to registrar of CoA. Parties may be summoned to settle documents to be included in the record of appeal and Registrar may fix amount to be deposited. If registrar fails to compile records within 60 days, appellant has 30 days to do so and transmit 20 copies to registrar CoA.

– Hearing of appeals is through brief of argument

– Appellant shall file brief of argument (succinct statement of his argument on appeal) within 45 days of receipt of the record of appeal (and within 15 days of transmission of record) of appeal from the court below.

– Respondent is to file his own brief of argument within 30 of service of appellant’s brief on him. Answering all material points raised by the appellant in his brief.

– Appellant may file a reply brief to respond to new points/issue(s) of law raised in respondent’s brief (where necessary) within 14 days of service of him of respondent’s brief (but not later than 3 days before date for hearing the appeal).

Note that each party should file 20 copies of his brief of argument and all copies for service shall be endorsed by the registrar.

– The BOA should 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 for determination;  – statement of facts; Argument of Issues; – Conclusion/summary; – List of Authorities; – Name of counsel, signature and date of brief; -Address(es) for service.

– not less than 3 justices of the CofA determine the case and each must give his written judgment or adopt the written opinion/judgment of his colleague. Not all need to be present as (even a single) colleague may pronounce the written and signed opinion of the other(s) (whether or not he was in the panel). AG Imo v AG Rivers State, AG Fed v NPP.

Note the CofA (Fast Track) Practice Direction 2014 which reduces time to file respondent’s brief to 10 days. Note also the Supreme Courts practice direction and its effects on appeals.

Note the CofA (Fast Track) Practice Direction 2014 which reduces time to file respondent’s brief to 10 days. Note also the Supreme Courts practice direction and its effects on appeals. For fastrack, no oral argument is allowed except the court wishes clarification.

:: PROCEDURE FOR APPEALS FROM DECISIONS OF COURT OF APPEAL TO SUPREME COURT: 233 CFRN Appeals lie to them as of right where ground involves; -question of law alone, questions as to interpretation of CFRN, Chapter IV; -appeal against death sentence; – such other cases prescribed by an Act of the NASS. Application for leave is filed first at CoA then to SC within 15 days from refusal of CoA. 27 SCA

The appellant should (file notice of) appeal within 30 days from judgment-Section 27 SCA although appeal for extension of time within which to file appeal can be made with genuine reasons shown for delay.

Time for filing notice of appeal does not begin to run until accused is notified of the judgment.

Every other procedure is similar to CofA just that appellants brief is 10 weeks respondent is 8 weeks, appellant’s reply is 4 weeks, parties file 10 copies and have one hour to argue.

Not less than 5 justices to hear case-S 10 SCA, 234 CFRN. But full court needed for appeal brought under Section 233(2) CFRN.

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[1] As joint notice of appeal is incompetent-Uwazuruike v AG Fed.

[2] It is as of right where it is; – An appeal against the final criminal decision of A HC/FHC sitting as court of first instance OR an appeal on question of law alone OR  on application or interpretation of the Constitution OR chapter 4, OR where liberty of a person is in dispute;  Or other ground stated by the National Assembly or HOA in law. Other instances (e.g. question of fact, mixed law and fact, etc.) is with leave of the court.

[3] Counsel may sign where appellant is unsound, body corporate, etc. See Or 17 Rule 4 CAR. Processes filed by counsel should be in his own name. Note that notice of appeal shall be nnecessary if he has already applied for leave to appeal. If leave to appeal is refused by HC he can apply to CoA within 15 days of the court’s ruling attaching Motion on notice for leave, CTC of Lower Court’s decision; Copy of proposed grounds of appeal; – Copy of Order refusing leave.

[4] With affidavit containing reasons for delay and that grounds of appeal are likely to succeed.

Isochukwu

Quite eccentric really

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