Nigeria: Effect Of Appeals On Course Of Trials

Last Updated: 24 April 2014
Article by Strachan Partners

The need for an efficient and effective administration of justice has made the establishment of hierarchy of courts and provision for appeal from one court to the other, within the hierarchy, very desirable.1 According to Irikefe J.S.C., the possibility that a decision of an inferior court may be scrutinised on appeal by a higher court, at the instance of an aggrieved party is, in itself, a safeguard against injustice as it acts as a curb against capriciousness or arbitrariness.2 An appeal has been defined as an invitation to a higher court to find out whether, on proper consideration of facts placed before it, and the applicable law, the lower court arrived at a correct decision.3

It is trite that an appeal does not, ipso facto, operate as a stay of proceedings of a court.4 Therefore, an appellant desirous of appealing the judgement of a lower court must take a further step by filing an application to stay the proceedings execution of judgment complained against pending the outcome of an appeal.5 An appeal, though, a constitutionally allowed right, is however, being used by unscrupulous litigants as a means of frustrating the other party to the suit as it causes delay in adjudication. It has been observed that the average lifespan of cases in Nigerian courts nowadays is 15 years with appeal processes taking over 60% of this time6.

It should be settled from the world go that a minority decision (of the Court of appeal for instance) does not constitute the decision of the court7 just as an obiter dictum of any court.8

Similarly, the exercise of administrative power by the Chief Judge to assign a case to one Judge or the other, or to transfer a case from one Judge to another, does not qualify as a decision and cannot, therefore, be subject of an appeal.9

The right to appeal in some instances is recognised by the Constitution of the Federal Republic of Nigeria as of right.10 An appeal against the final judgement of the High Court must be lodged within three months in respect of civil cases and 90 (ninety) days for criminal cases. An appeal against an interlocutory decision of a High Court must be lodged within 14.11

It is unfortunate that some lawyers have used and continue to use the appeal process as a ploy to stall the progress of a case. Counsel file appeals against interlocutory rulings of court and by the time the interlocutory appeals are finally decided by the Supreme Court, continuation of the substantive trial at the High Court becomes uneconomic. Some counsel file application for extension of time within which to appeal on the frivolous excuse that the certified true copy of the judgement appealed against could not be procured within the statutory period stipulated for appeal. Such application should be refused by the Court on the basis of the Court of Appeal's counsel in Emmanuel v. Gomez12that delay in obtaining the certified true copy of a ruling is not a good reason for a court to exercise its discretion to extend time to appeal.13 The Court held further that rather than wait for a certified true copy of the ruling appealed against, the appellant's counsel should, with dispatch, file an omnibus ground of appeal within the prescribed period and when he eventually obtains the certified true copy of the ruling, he should seek leave to file additional or modified or amended grounds of appeal.

One major solution to the problem of using appeals as a ploy to stall trial at the lower court is by adopting a similar practice direction contained in the Election Tribunal and Court Practice Directions 2011 which empower the Court of Appeal to consolidate all interlocutory and substantive appeals in an election petition. Therefore, at the trial stage, the High Court (Civil Procedure) Rules should be amended in such a way that Judges can refuse to stay proceedings of the substantive suit to await the decision of the Court of Appeal on an interlocutory ruling.

The Court can shorten the life span of a case if it imposes heavy costs and penalties for default of appearance or delay in filing process. In addition, where a party fails to appeal within the period prescribed by law, the Court should not grant an application for leave to appeal or for extension of time unless in special circumstances or in the alternative, impose a very heavy penalty on the appellant.14


1 A. F. Afolayan and P.C. Okorie Modern Civil Procedure Law (Lagos: Dee-Sage Nigeria Limited, 2007) 333.

2 Rabiu v. State (1980) 8-11 S.C. 130 at 175-176.

3 Per Oputa J.S.C. in Oredoyin v. Arowolo [1989] 4 NWLR (Pt.114) 172 at 211

4 Fani-Kayode v. F.R.N. [2011] 4 NWLR (1237) 340 at 355 paras. E-F.

5 This could be a stay of execution, stay of proceedings or injunction pending appeal depending on the party appealing and the whether the decision appealed against is final or interlocutory or whether the decision is executor or merely declaratory.

6 Ariori v. Elemo(1983) 1 SC 13 for instance took about 23 years while Union Bank Nigeria Plc v. Ayodare and Sons (Nig.) Limited [2007]13 NWLR (Pt. 1052) 567 was instituted at the State High Court in 1989 but was not finally disposed of by the Supreme Court until 2007 – a period of 18 years! The trial court gave judgment in Adisa v Oyinwola [2000] 10 NWLR (Pt.674) 116 in 185 while the appeal was not determined by the Supreme Court until year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court.

7 Ige v. Olunloyo (1984) 15 SCNLR 158.

8 Abacha v. Fawehinmi (2000) 4 S.C. (Pt. II) 1.

9 Dike v. Andubah [2000] 2 SCNJ 41 at 49.

10 Section 241 of the Constitution of the Federal Republic of Nigeria Chapter C23 Laws of the Federation of Nigeria (as amended). An appeal against the final decision - civil or criminal - of the Federal High Court or a High Court sitting at first instance; where the ground of appeal involves questions of law alone, in any civil or criminal proceedings; the appeal borders on the interpretation or application of the Constitution; appeal against a decision on the breach - actual or threatened - of any of the provisions of Chapter IV of the Constitution; appeals against the death sentence imposed by a High Court; appeals against decision on the liberty of an infant; appeal against appointment or refusal to appoint a receiver; and so on; do not require the leave of either the lower court or the appellate court before lodgement.

11 Section 24 of the Court of Appeal Act Chapter C36 Laws of the Federation of Nigeria 2004 (as amended)

12 [2009] 7 NWLR (Pt. 1139) 1 at 12

13 Emmanuel v. Gomez supra. See also Imprest Bakolori Plc v. Abdulazeez [2003] 1 NWLR (Pt. 834) 307

14 If the latter suggestion would be feasible, the current High Court (Civil Procedure) Rules should be amended to make room for this.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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