Michael K. Bielonwu, MCIArb. (UK),
Fredrick O. Omatseyin Esq.,
Jeremiah E. Aneji Esq.,
Margaret E. Ogbonnah.
This article examines the appellate system of the Nigerian judiciary vis-à-vis what is obtainable in the United States of America and the United Kingdom.
While the article is not intended to be a comprehensive comparative study of the three systems, it will look at the differences between the Nigerian jurisdiction from what is obtainable in the US and UK, highlighting the salient point which differentiates the two advanced systems from the scenario in Nigeria. We will also look at the impact of the snail-speed appellate process in Nigeria on the Nigerian State, i.e. the economy, justice delivery, peace and progress of the country in general.
What is an appeal? According to the Merriam-Webster’s Collegiate Dictionary, Tenth Edition, Appeal is a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court. It also means to make an earnest request. To arouse a sympathetic response.
However, in this article, our focus is on appeal as a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court.
Appellate system in Nigeria:
Although Nigeria is a Federal State, however the court system throughout the federation is very much the same, the only difference being at the very bottom of the judicial system, where the slight distinction is found in the area court system obtainable in the Muslim majority North of the country plus the Federal Capital Territory and the customary court system found in the Christian majority south of the country and the Federal Capital Territory.
Apart from these significant distinctions mentioned above, the entire federation has a uniform system of courts viz, the Magistrate court, the High Court of the State, the Sharia court for States in the North, the Sharia Court of Appeal for States in the North and the Federal Capital Territory and the Customary Courts and Customary Courts of Appeal for the States in the South and the Federal Capital Territory. Then there is the Federal High Court, which seats over certain cases, especially those that have to do with the Federal Government and its Agencies, the National Industrial Court, the Court of Appeal and the Supreme Court.
Although the Customary Court of Appeal, the Sharia Court of Appeal, the High Court of a State, the Court of Appeal and the Supreme Court all have appellate powers and exercise same over courts under them, the essence of this write-up is to examine the appellate jurisdictions of the Supreme Court and Court of Appeal of Nigeria.
Appeal as of right:
Under the Nigerian law, an appeal is a constitutional right. That is, whether appeal as of right or with leave. This is because a litigant is empowered by the 1999 Constitution of the Federal Republic of Nigeria to appeal any decision that they do not like and the Supreme Court and the Court of Appeal of Nigeria have little or no say on whether or not to hear the appeal, except in recent times where some appeals have by law been disallowed from progressing beyond the Court of Appeal. Two clear examples here are under 243 (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which limits appeal from the decision of the National Industrial Court in civil matters to the Court of Appeal and Section 246 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which makes the decisions or judgments of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions as final.
However, despite the explicit provisions of the Constitution of Nigeria, in industrial matters, for instance, some lawyers still find ways to bring unmeritorious appeals on grounds forbidden by the Constitution to the Court of Appeal and even find a way to escalate these appeals to the Supreme Court of Nigeria primarily to cause delay and frustrate the judgment creditor all in the name of right of appeal.
Appellate jurisdiction of the Court of Appeal of Nigeria & the Supreme Court of Nigeria:
Section 233 of the 1999 Constitution of the Federal Republic of Nigeria provides for the appellate jurisdiction of the Supreme Court of Nigeria. It provides:
“(1) The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie form decisions of the Court of Appeal to the Supreme Court as of right in the following cases –
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution,
(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) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court;
(e) decisions on any question –
(i) whether any person has been validly elected to the office of President or Vice-President under this Constitution,
(ii) whether the term of office of President or Vice-President has ceased,
(iii) whether the office of President or Vice-President has become vacant;
(iv) whether any person has been validly elected to the office of Governor or Deputy Governor under this Constitution;
(v) Whether the term of office of a Governor or Deputy Governor has ceased;
(vi) Whether the office of Governor or Deputy Governor has become vacant; and
(f) Such other cases as may be prescribed by an Act of the National Assembly.”
Going further the Constitution under, sections 240, 241 and 242 provides for the appellate jurisdiction of the Court of Appeal. In order to make this article as concise as possible, we shall only reproduce the provision of Section 240 of the Constitution. The said Section provides thus:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federation 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 a state and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
Merely looking at these Sections mentioned above, one is left doubtless that the powers of appeal of both the Court of Appeal of Nigeria and the Supreme Court of Nigeria are vast, thereby increasing their workload, as there is nearly no end to appeals that may be brought before them.
For instance, Section 233 (1) (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria which provides for the appellate jurisdiction of the Supreme Court of Nigeria, seems to allow a flood gate of appeals which the Supreme Court of Nigeria must hear and a lot of unscrupulous litigants and their lawyers who know they do not have a case but only desire to exploit the prolonged period it takes to complete an appeal before the Supreme Court of Nigeria to frustrate the enforcement of judgment that is not in their favour.
Therefore, comparing the workload of the Court of Appeal and the Supreme Court of Nigeria to that of the Court of Appeal and the Supreme Court of the United States of America, we will discover that these appellate courts in the United States of America unlike their Nigerian counterpart have lesser workload and therefore more effective in justice delivery.
The Court of Appeal of the United States of America and the Supreme Court of the United States of America:
Here we shall look briefly at the appellate jurisdiction of the Supreme Court and the Court of Appeal of the United States of America.
Article III, Section II of the Constitution of the United States establishes the jurisdiction of the Supreme Court. The Court has original jurisdiction over certain cases, e.g., suits between two or more States and/or cases involving ambassadors and other public ministers. The Court has appellate jurisdiction on almost any other case that involves a point of constitutional and/or federal law. Some examples include cases to which the United States is a party, cases involving Treaties, and cases involving ships on the high seas and navigable waterways (admiralty cases)1. However, one may look at it and conclude that the appellate jurisdiction of the Supreme Court of the United States is equally very wide like that of its Nigerian counterpart, but a closer look will reveal that it is not the case.
As a matter of fact, the Supreme Court of the United States of America chooses out of about Seven thousand cases that come before it each year which ones to hear and this is because the Court, with a few exceptions, does not have to hear a case. The Certiorari Act of 1925 gives the Court the discretion to decide whether or not to do so. In a petition for a writ of certiorari, a party asks the Court to review its case. The Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year.2 This in effect makes the Court of Appeal of the United States of America the court of last resort as most cases are concluded at that level.
The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. This is an essential aspect of the powers of the United States Supreme Court, which the Nigerian Supreme Court does not have.
Courts of Appeals:
There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.
A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies.
In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U. S. Court of International Trade and the U. S. Court of Federal Claims etc.
The Right to Appeal:
An appeal is available if, after a trial in the U.S. District Court, the losing side has issues with the trial court proceedings, the law that was applied, or how the law was applied. Generally, on these grounds, litigants have the right to an appellate court review of the trial court’s actions.
The reasons for an appeal vary. However, a common reason is that the dissatisfied side claims that the trial was conducted unfairly or that the trial judge applied the wrong law, or applied the law incorrectly. The dissatisfied side may also claim that the law the trial court applied violates the U.S. Constitution or a state constitution3.
The United Kingdom:
In the United Kingdom, Supreme Court sits at the apex of the court system in the United Kingdom.
Section 40 of the Constitutional Reform Act 2005 creates the Supreme Court. The Act provides thus:
(1) The Supreme Court is a superior court of record.
(2) An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings.
F1(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Schedule 9—
(a)transfers other jurisdiction from the House of Lords to the Court,
(b)transfers devolution jurisdiction from the Judicial Committee of the Privy Council to the Court, and
(c)makes other amendments relating to jurisdiction.
(5) The Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.
(6) An appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court, but this is subject to the provision under any other enactment restricting such an appeal.
From the foregoing, it appears that before a litigant will proceed to file his appeal before the UK Supreme Court, he or she needs the leave of the Court of Appeal or the Supreme Court. This is a marked distinction from the Nigerian system where almost all appeals are of right apart from a few cases where leave is required or clearly forbidden on the ground that the Court of Appeal of Nigeria is the court of last resort in such matters.
The UK Court of Appeal:
The Court of Appeal of England and Wales was created in 1875 and is split into two permanent Divisions, the Civil Division (which hears family cases as well as a range of civil appeals) and the Criminal Division, which hears appeals against criminal convictions and sentences.
Following reforms contained in the Constitutional Reform Act 2005, the Court of Appeal is now one of the Senior Courts of England and Wales.
The Court is constituted of the Lord Chief Justice, Master of the Rolls and Heads of Division (President of the Queen’s Bench Division, President of the Family Division and Chancellor of the High Court), and 38 Lord and Lady Justices of Appeal.
The Lord Chief Justice is the President of the Criminal Division, while the Master of the Rolls is the President of the Civil Division. Normally one of the Lord or Lady Justices is appointed as Vice-President of the Criminal Division, while another is appointed Vice-President of the Civil Division4.
In the United Kingdom, for an appeal to go from the Court of Appeal to the Supreme Court, it must be with the leave of the Court of Appeal. This effectively reduces the number of cases finding its way to the Supreme Court thereby making the Court of Appeal the final Court of appeal.
Back to Nigeria:
Under the Nigerian system, there is almost no limit to the cases ending up at the Supreme Court once they find their way to the Court of Appeal of Nigeria. Over time, this has impacted the lives of Nigerians negatively. Although sad, however, one will not be far from the truth to say that the present justice system in Nigeria is a major contributory factor to the absence of peace and progress in Nigeria. This is because the judiciary is ideally regarded as the last hope for the common man considering the lofty responsibility assigned to it in society. However, despite these crucial role of the judiciary, the Nigerian judicial process is painfully slow and considered by many as ineffective in justice delivery as it seems removed from the reality of daily life in the society and this has continuously hampered progress as rule of law is placed on the back bench and people often resort to self-help which often ends up hurting the entire society.
As a matter of fact, most times by the time a matter is determined, the litigants no longer have any need for the outcome of the case. A situation where there is judgment without justice, a complete waste of everybody’s time.
The Negative Impact Of Prolong Appeals On The Nigerian Economy And Businesses:
One of the determining factors that tips the sentiment of foreign and local investors in favour of one country over the other is the confidence reposed in the judicial system/mechanisms for resolution of disputes in general and most importantly commercial disputes. According to the Journal for Applied Economics, the judiciary serves important purposes not only in upholding social values, but also in determining economic performance. Indeed, well-functioning judiciaries guarantee financial market development5.
An investor’s major concern is how quickly he can get justice in the event of a dispute and the ease with which he can readily translate such resolutions into
tangible capital for his next venture. Anything short of this makes no meaning to the business community. Therefore a situation where cases are prolonged in court through appeal process discourages business and investment in the economy. According to Marilene Lorizioa and Antonia Rosa Gurrieria (Department of Law, University of Foggia) in their publication titled “Efficiency of Justice and Economic Systems” published in “Procedia Economics and Finance 17 (2014) 104 – 112”, one of the factors that discourages investment, particularly foreign investment, in developing countries is the absence of an effective and reliable dispute resolution mechanism.
The Nigerian justice system has not fared well in speedy dispensation of justice as lapses in the systems has seen cases tarry in court for upward of twenty years in some instances so that in some cases businesses die off simply because when these matters are taken to court the judge place one injunction or the order restraining the business from proceeding while the matter is in court and by the time the matter is concluded in court, the business is already dead out of inactivity.
The issue of prolonged appeals is beyond legal jurisprudence; it has direct consequence on businesses as well as the lives of members of the society. Following are few examples of the negative impact of prolonged appeals:
- Real Estate – Pillars Nigeria Limited v. Desborde (2021) which is an action for the recovery of premises. This matter was instituted at the High Court of
Lagos State on the 15th of May, 1993 and judgment was given on the 8th day of December, 2000. The Defendant while still in possession, filed an appealed to the Court of Appeal and the Court of Appeal dismissed the appeal on the 8th of May, 2009, 9 years after the appeal was entered and sixteen years after the suit was filed at the High Court of Lagos State. The Defendant further appealed to the Supreme Court while still retaining possession and the
Supreme Court delivered its judgment about 12 years later on the 5th of February, 2021. A period of 28 years after the Lessor sought to enforce his
right to possession of the leased property. This is a real life example of Judgment without justice.
- Liquidation of Judgment debt or awards – One of the enabling factors that aid a business friendly environment is the investors’ ability to easily translate
values in paper form to liquid cash or other assets needed for his business. A system where judgment is given upon the resolution of a long fought dispute
but however made a subject of an unending appeal is not only discouraging but negatively impact the lives of individual members of the society as well as
the peace and progress of the entire society. A good example is the case of CENTRAL BANK OF NIGERIA v. INTERSTELLA
COMMUNICATIONS LIMITED & ORS (2018) All FWLR (Pt. 930)442 @529-530, where judgement was obtained by the Respondents in 2008 in the sum of 23 billion naira and 48 million(USD) on the occasion of breach of contract arising from its investment in the Defunct Nigerian Telecommunications Limited(NITEL). The parties undertook a post judgment settlement and agreed as consent judgment to pay the sum of 12 billion naira in 2009. The Judgment debtors failed in liquidating the judgment debt, prompting Interstella Communications Limited to commence
garnishee proceedings against them on the 12th of October, 2011. The fruit of the judgment was challenged by the Garnishee whose duty it was to simply
show cause, the challenge went on from the High court to the Court of Appeal where judgment was given on the 9TH of May, 2014. The Garnishee still
appealed to the Supreme Court where the matter was finally put to rest on the 15th of December, 2017. This is in similar fashion with the case of Guaranty
Trust Bank Plc v. Innoson (Nigeria) Ltd (2017) 16 NWLR (Pt. 1591) 181.
We can go on and on to give examples. The truth of the matter is that prolonged appeals impact the society negatively.
DISADVANTAGES OF PROLONGED APPEALS
Some of the disadvantages of prolonged appeals amongst several are:
- It deprives the person who has judgment in his favor, the benefit of enjoying the fruit of his judgment.
- In the case of monetary judgment, prolonged appeals deprived the judgment creditor value of the judgment sum. This is so because when the appeal will
finally be concluded, the value of the judgment sum would have depreciated especially the Nigerian type of economy which is highly unstable.
- Prolonged appeals foster acrimony amongst litigants. They continue to see themselves still in dispute as a result of the prolonged stay of their dispute in
- Prolonged appeals stall the growth and development of a country or community.
- Prolonged appeals impact negatively on our judicial system as litigants and investors see our judicial system as too slow. They see the Appellate courts as
“Detention Centers” where cases are locked down for a protracted period of time.
- In most cases, prolonged appeals out live the litigants as one or both of the parties would have died before the case is finally concluded on appeal,
thereby making nonsense of the enter process.
- Commercial Appeals should be time bound.
- Specialized court should be created to deal with commercial matters with the amount in dispute as a benchmark.
- Garnishee proceedings should be such that the leave of the Court of Appeal is required before same is appealed, the judgment debtor pays the
judgment debt into Court as a condition precedent to appeal and the Court of Appeal designated as the court of last resort on all grounds.
- Certain transactions should be initiated at a tribunal or inferior court with the High Court exercising final appellate jurisdiction.
DISCLAIMER: This article is for information purpose. It may not reflect the current state of the law, and is therefore not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.