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BASIS OF APPEAL
Appeal as the resort to a superior court to review the
decision of a lower court. An appeal is any
proceeding taken by an aggrieved party to rectify an alleged erroneous decision
of a court by bringing the decision before a higher court.
RIGHTS OF APPEAL
An appeal may be
as of right or only with the leave of the court – sections 241 and 242 of the 1999 Constitution. Thus, a right of
appeal exists only where it is provided for under an enactment.
Whether an
appeal is of right or only with the leave of the court, the right of appeal
must expressly be stated in a statute – The State v. Adili (1989) 3 SC (Pt. 1) 19.
Moreover, a
party aggrieved by the decision of a trial court may appeal against that
decision to a superior court. The parties to a criminal proceeding are the accused person and the prosecutor, and either or both parties
may appeal if dissatisfied with the decision of the trial court – the accused
person may appeal and the prosecutor may cross-appeal – Nafiu Rabiu v. The State (1980) 2
NCR 117.
APPEALABLE DECISIONS
An appeal may be against a final judgment or
an interlocutory decision. An appeal against an interlocutory decision is
called an interlocutory appeal.
An interlocutory appeal is an appeal on a
point of law or a matter pending the final determination of a case.
Any party who is aggrieved by the ruling or
order of a court may appeal, in the interim, pending the final determination of
the case.
The procedure for filing an interlocutory
appeal is that the appellant must commence with a notice of appeal and
thereafter proceed to file the grounds of the appeal. And where necessary, he
may apply for a stay of proceedings.
APPEAL
FROM MAGISTRATES COURTS TO STATE HIGH COURTS
Appeals lies from a Magistrate Court to a
High Court of the same State (same jurisdiction). Under section 272 of the
1999 Constitution, the jurisdiction of a State High Court is stated thus –
(1)
Subject to the provisions of this Constitution..., the High Court of
a State shall have jurisdiction to hear and determine... any criminal
proceedings involving or relating to any penalty, forfeiture, punishment or
other liability in respect of an offence committed by any person.
(2)
The reference to criminal proceedings in this section includes a
reference to the proceedings which originate in the High Court of a State and
those which are brought before the High Court to be dealt with by the Court in
its appellate or supervisory jurisdiction.
The appellate jurisdiction of the States’
High Courts over subordinate courts is also provided for under other
enactments. For example, section 28 of the High Court Law, Laws of Lagos
State, 1973 provides thus –
The High Court shall have
appellate jurisdiction to hear and determine appeals from decisions of the
Magistrates’ Courts in criminal causes and matters as well as case stated by
magistrates in accordance with section 125 of the constitution of the
Federation.
Section
279(1) of the Criminal Procedure Code (CPC) provides that
“Appeals from a Magistrate
Court to the High Court shall be in accordance with section 53 of the
Constitution of Northern Nigeria, 1963.”
GROUNDS
ON WHICH AN AGGRIEVED PARTY MAY APPEAL
PROSECUTOR
He may appeal as of
right against the decision of a magistrate in the following cases:
1. Where an
order of acquittal or discharge has been made by a magistrate, on the ground
that the order is erroneous in law or that the proceedings or any part thereof
is in excess of jurisdiction of the magistrate – section 57(a) Magistrates’ Court Law (Lagos) 2004 and section 279(2) of
the Criminal Procedure Code; and
2. Where a
magistrate has imposed a sentence below the minimum or above the maximum
permitted by law. See section 57(b) Magistrate's Court law (Lagos) 2004. No
right of appeal in other cases e.g. inadequacy of sentence or punishment or
against grant of bail – C.O.P v. Noma
(1973) NNLR. 65; C.O.P v. Aminu Sani (1975) All NLR. 224.
ACCUSED
An accused may appeal against the decision of
a Magistrates Court on no other ground but all or any of the following grounds
–
1. That the court below has no
jurisdiction in the case.
2. That the court below has exceeded
its jurisdiction in the case.
3. That the magistrate was personally
interested in the case.
4. That the magistrate has acted
corruptly or maliciously in the case.
5. That the decision has been
obtained by fraud.
6. That the case has already been
heard or tried and decided by or forms the subject of a hearing or trial pending
before a competent court, provided that it is not competent for the Appeal
Court to entertain as a ground of appeal the special plea of autre fois acquit or autre fois convict unless such special
plea was pleaded in the court below.
7. That admissible evidence has been
rejected, or inadmissible evidence has been admitted, by the court below and
that in the latter case there is not sufficient admissible evidence to sustain
the decision after rejecting such inadmissible evidence.
8. That the decision is unreasonable,
or cannot be supported having regard to the evidence.
9. That the decision is erroneous on
point of law.
10. That some other specific
illegality, not earlier mentioned and substantially affecting the merits of the
case, has been committed in the course of the proceedings in the case.
11. That the sentence passed on
conviction is excessive.
BEFORE THE JUDGMENT
The Attorney-General
may at any stage before judgment direct a magistrate to refer a point of law
arising from the trial for opinion of the High court – section 65 Magistrate's Court Law (Lagos) 2004.
Either party to the
proceedings may request a magistrate to refer (or he may on his own refer) a
question involving substantial points of law on interpretation of the
Constitution to the High Court – section
259 of the 1999 Constitution.
The Magistrate may
in his discretion refer a question of law for the decision of a High Court – section 65 of the Magistrate's
Court Law (Lagos) 2004; R. v. Eze (1950) 19 NL R. 110.
AFTER THE JUDGMENT
The Attorney-General
may within six (6) months of a judgment direct the magistrate to state a case
thereon for the decision of the High Court – section 66 Magistrate's Court Law.
FAILURE TO FILE NOTICE OF APPEAL WITHIN STATUTORY PERIOD
When an aggrieved
party fails to file his notice of appeal within thirty (30) days of the date of
delivery of the judgment of the court, he may file an application for leave to
appeal out of time. The application must be filed at the High Court by way of
motion on notice supported by an affidavit stating reasons why the appeal was
not filed within time – Order 2 (Part 1)
Rule 14, High Court of Lagos Appeal Rules 2004. Reasons for lateness must
be stated otherwise, it shall not be entertained – Moses v. Ogunlabi (1975) 4 S.C. 81.
APPLICATION
FOR LEAVE TO FILE ADDITIONAL GROUNDS OF APPEAL
This is necessary because at the time of
filing the notice and grounds of appeal, the appellant may not have obtained
the copies of the record of proceedings from the Magistrates’ Court. In order
to comply with the statutory period for the filing of the appeal, initial
grounds of appeal are drafted by counsel based on counsel’s longhand note of
what happened at the trial court, or simply on the omnibus ground that judgment
is against the evidence adduced at the trial.
The initial grounds of appeal must show that
the appellant intends to file additional grounds of appeal with a paragraph
stating such. The applicant must bring an application for leave of the High
Court to do so and the application must be by motion on notice supported by an
affidavit stating out the facts on which the applicant relies, and exhibiting
the perfected grounds of appeal. Such applications are usually granted by the
court, and the court will order that the perfected grounds of appeal be
substituted for the initial grounds of appeal – Esoh v. Police 3 FSC 37.
APPLICATION
FOR LEAVE TO AMEND DEFECTIVE GROUNDS OF APPEAL
Where the appellant’s notice of appeal
contains defective grounds of appeal, he may amend it by filing an amended
notice of appeal, provided the amended notice of appeal is filed within 30 days
of the date of the decision appealed against which shall be substituted for the
original notice of appeal. Where 30 days has elapsed, the appellant may, with
the leave of the High Court, file an amended ground of appeal. The application
for leave may be by way of notice.
PAYMENT OF FEES
Where appellant is not a public officer acting
in his official capacity, he must pay the fees for filing the appeal and such
amount as is deemed sufficient by the court to produce sufficient number of
certified typewritten copies of the record of proceedings to supply each
respondent and the court. The court may however remit the fees in whole or in
part on the ground of the appellant's poverty or for other sufficient cause – Order 2 Part I Rules 3 and 4.
Under section 276 of the CPC, the
accused is entitled to request a copy of the judgment free of charge but shall
pay for the provision of the record of the proceedings and use of the court.
SECURITY TO PROSECUTE APPEAL
The appellant shall enter into a bond with or
without surety as the magistrate may direct to prosecute the appeal with
diligence and to abide by the result thereof including the payment of costs if
any – Order 2 (Part 1) Rule 5 High Court
Appeal Rules; section 283 of CPC.
BAIL PENDING
APPEAL FROM DECISION OF MAGISTRATES’ COURT TO STATE HIGH COURT
Where an appellant has been sentenced to imprisonment or Bostal training,
the magistrate shall release him from custody on his either entering into a
recognisance, with or without sureties, and in such reasonable sum as the
magistrate thinks fir, conditioned for the appellants appearance at the hearing
of the appeal, or giving, with the magistrates’ consent, other security for his
appearance –
(i)
If the appellant has previously served a sentence of not less than six
months imprisonment; or
(ii)
If there is evidence upon which the magistrate, having regard among other
things to the offence of which the appellant has been convicted and to any
previous convictions which may have been recorded against the appellant, may
reasonably presume that the appellant, if released from custody is likely to –
(a) Commit some further offence; or
(b) Evade or attempt to evade justice by
absconding or otherwise disappearing.
The
magistrate shall have a discretion whether to release the appellant from
custody or not.
ABATEMENT OF APPEAL
A Criminal Appeal, other than an appeal against a sentence of fine
shall abate on the death of the appellant – section
64 Magistrate Court Law; section 291 CPC; R. v. Rowe ( 1955) 39 Cr. App. Rep. 57.
ABANDONMENT OF APPEAL
An appellant may abandon his appeal by giving a written notice of
abandonment signed by himself or his counsel to the registrar of the court
below not less than two (2) days before the date fixed for hearing. The latter
shall immediately notify the High Court Registrar of the abandonment of the
appeal and the magistrate may award costs to the respondent – Order 2 (Part I) Rule 13; Awojobi v. Ogbemudia (1983) 8 S.C 92.
HEARING NOTICE AND
HEARING OF THE APPEAL
The
notice of the time and place of the hearing of the appeal must be served by the
registrar of the High Court on all of the parties to the appeal. The onus is on
the High Court to ascertain whether the parties to the appeal have been served
by the registrar of the court before proceeding to hear the appeal.
If
on the day fixed for the hearing of the appeal, or on any adjourned date, an
appellant who has been released on bail and who has been served with the notice
of hearing is not present, the High Court may order the arrest of the appellant
by issuing a warrant of arrest. However, if the appellant appears on the day of
the hearing, the High Court may, proceed to the hearing and determination of
the appeal.
ADDITIONAL EVIDENCE
Where the High Court considers it necessary or
expedient in the interest of justice, it may allow additional evidence to be
adduced on appeal or may refer the case back to the magistrate to take such
evidence and adjudicate afresh in the light of the evidence or report its
findings on such evidence to the court. The High Court will not receive
additional evidence where such evidence was available at the trial or could
have been adduced at the trial stage – Abiola & Ors. v. The Police (1961) All NLR 815; Ariran v. Adepoju (1961) 1 All NLR 72; Oladipupo v. State (1993) 6 SC (pt 2) 233.
An appeal court should only admit fresh evidence in exceptional
circumstances where to do so would not mean a rehearing – R. v Oton 12 WACA.
212; R. v. Rowland (1947) KB 460 32.
POWERS OF THE STATE
HIGH COURT IN ITS APPELLATE CRIMINAL JURISDICTION
The
State High Court is vested with wide powers in the hearing and determination of
criminal appeals from the Magistrate’s Courts. The powers of the State High
Court are as follows –
1.
On appeal against
conviction, or conviction and sentence, the State High Court may make any of
the following orders –
a)
Affirm the conviction, or conviction and sentence.
b)
Quash the conviction and sentence and acquit or discharge
the appellant, or order him to be retried by a court of competent jurisdiction
or commit him for trial.
c)
Alter the finding, maintaining the sentence.
d)
Affirm the finding, reducing or increasing the sentence.
e)
Alter the nature of the sentence.
f)
Annul the conviction and substitute a special finding of not
guilty by reason of insanity and make a committal order – Nwobu v. Police 1963 NNLR 9.
2.
On appeal against
sentence only –
a)
Affirm the sentence; or
b)
Substitute any other sentence, whether more or less severe
and whether of the same nature or not.
3.
On an appeal against
an order of discharge or acquittal –
a)
Affirm such an order of discharge or acquittal.
b)
If the High Court is of the Opinion that the order of
discharge or acquittal should not have been made, it must remit the case
together with the judgment of the High Court on it to the Magistrates’ Court
for determination, whether or not by way of rehearing, with such directions as
the High Court may think necessary.
4.
On an appeal on the
ground of failure to impose a minimum sentence or make an order prescribed by a
written law –
a)
Affirm the sentence or order (if any) imposed or made by the
Magistrates’ Court.
b)
Substitute or impose or make a sentence or order prescribed
by the written law.
5.
On an appeal from any
other order –
a)
Affirm the order made by the Magistrates’ Court.
b)
Alter the order made by the Magistrates’ Court.
c)
Reverse the order made by the Magistrates’ Court.
On
any appeal from a Magistrates’ Court to the High Court, the High Court may make
any amendment or any consequential or incidental order that may appear just and
proper.
On
hearing an appeal in a criminal case, the High Court may, notwithstanding that
it is of the opinion that the point raised in the appeal could be decided in
favour of the appellant, dismiss the appeal if it considers that no substantial
miscarriage of justice occurred.
APPEALS FROM STATES
HIGH COURTS AND THE FEDERAL HIGH COURT TO THE COURT OF APPEAL
The
Court of Appeal has jurisdiction to hear and determine appeals inter alia from States’ High Courts and
the Federal High Court – section 240 of
the 1999 Constitution.
An
appeal from the decision of a High Court to the Court of Appeal may lie as of
right with leave – section 241 of the
Constitution. The application for leave must be brought first before the
High Court and if refused, before the Court of Appeal.
EXERCISE OF RIGHT OF
APPEAL FROM HIGH COURT
Any right of appeal to the Court of Appeal from
the decision of the High Court shall in the case of Criminal proceedings be
exercisable at the instance of an accused person or at the instance of the
Attorney-General of the Federation or of a State – Nafiu Rabiu v. The State (1980)
2 N.C.R. 117; Attorney-General of Kaduna State v. Hassan (1985) 2
NWLR 483.
PROCEDURE FOR APPEAL
The aggrieved party shall file a notice of
appeal or notice of application for leave to appeal in the registry of the High
Court. Such notice shall be signed by the appellant himself – Order 4 Rule 4(l) Court of Appeal
Rules 1981.
The period for giving notice of appeal or notice
of application for leave to appeal is 90 days
from the date of decision appealed against – section 1 Court of Appeal Amendment Act
1979. It should be noted that application can be made for extension of time
within which to appeal to the Court of Appeal in all cases – Kema
v. The State (1986)1 NWLR 396; section 25 Court of Appeal Act 1976 as
amended by section 6 Court of Appeal (Amendment Act No 7, 1982.
Where the application for leave to appeal is
made to the High Court first, a further period of 14 days
shall be allowed from the date of the determination of the application by the
court below to make another application to the Court of Appeal.
The application for leave must be made by Motion
on Notice which must be supported by an affidavit exhibiting the grounds of
appeal.
An application for extension of time must be made to the court where such
extension of time is sought, and not to the lower court.
BAIL
PENDING APPEAL FROM DECISION OF A HIGH COURT TO THE COURT OF APPEAL
The Court of Appeal may on the application of an appellant,
admit the appellant to bail, if it thinks fit, pending the determination of his
appeal. This is an absolute discretion of the court.
The principles governing the admission of an appellant to
bail pending the determination of his appeal were stated in R. v.
Tunwashe 2 WACA 236 as follows –
1.
That bail will not be granted pending an appeal, save in
exceptional circumstances or where the hearing of the appeal is likely to be
unduly delayed.
2.
That in dealing with the latter class of the case the court
will have regard not only to the length of time which must elapse before the
appeal can be heard but also to the length of the sentence to be appealed from,
and further that these two matters will be considered in relation to one
another.
Thus, in the absence of special or circumstantial
circumstances, bail will not be allowed – Mandara v. The Attorney-General of the
Federation unreported FCA/L/12/82; Fawehinmi v. The State (1990) 1 NWLR (Pt.
127) 486.
NOTICE
OF APPEAL AGAINST A SENTENCE OF DEATH
Where a High Court has imposed a
death sentence or the Court of Appeal has affirmed a death sentence, a notice
of appeal filed by the convicted person operates as a stay of execution of the
sentence of the court. The sentence of the court should not be carried out by
the Governor of the State until the final determination of the appeal – Bello
& Ors. v. Attorney-General of Oyo State (1986) 12 SC 1.
ABANDONMENT OF APPEAL
An appellant at any time after he has duly served notice of
appeal or of application for leave to appeal or of application for extension of
time within which such notice is given, may abandon his appeal by giving notice
of abandonment to the registrar.
Upon notice of abandonment been received, the appeal is
deemed to have been dismissed by the court.
RECORD
OF APPEAL
The registrar of the High Court
compiles the record of appeal, comprising the record of proceedings and all
other documents relevant to the appeal. It is transmitted to the registrar of
the Court of Appeal. The parties to the appeal are also served with the record
of appeal by the registrar of the High Court.
BRIEFS
The system of brief
filing was introduced to the Court of Appeal in 1984 by the Court of Appeal
(Amendment) Rules 1984. By it, the hearing of appeals in the Supreme Court and
the Court of Appeal is preceded by the filing of briefs of argument by the
appellant and the respondent in the registry of the appellate court.
The need to file a
brief can only be dispensed with by order of court.
FILLING OF BRIEFS OF
ARGUMENT
There are three types of appellate brief namely –
1. Appellant brief;
2. Respondent brief; and
3. Reply brief.
APPELLANT'S BRIEF
This is available under
Order 17 of the Court of Appeal Rules. The appellant shall within
forty-five (45) days of the receipt of the record of appeal from the court
below file in the Court below a written brief, being a succinct statement of
his argument on appeal.
The brief shall contain an address or addresses
for service and shall contain what are in the appellant's views the issues
arising in the appeal.
RESPONDENT'S BRIEF
The respondent shall within thirty (30) days of
service of the brief of the appellant on him, file the respondent's brief which
shall be duly endorsed with address or addresses for service – Order 17 Court of Appeal Rules 2007.
REPLY BRIEF
The appellant may also if necessary, within
fourteen (14)
days of the service on him of the respondent's brief, but not later than three
(3) clear days before the date set down for the hearing of the appeal, file and
serve or cause to be served on the respondent a reply
brief which shall deal with all the new points arising from the appellants
brief – order 6 Rule 5. A reply brief is filed only when an issue of law raised
in the respondent's brief calls for a reply – Nwali v. State (1991) 3 NWL.R (pt 182) 663.
FORM
AND CONTENTS OF APPELLATE BRIEF
The essential parts of an appellate brief are –
1. The court in which the appeal is to be argued.
2. Appeal number.
3. Parties to the appeal.
4. Title of the brief (e.g. appellant’s brief, respondent’s brief or reply
briefs).
5. Table of contents.
6. Introduction of preliminary matters.
7. Issues for determination.
8. Statement of facts.
9. The argument.
10. Conclusion or summary.
11. List of legal authorities.
12. Signature.
13. Address for service.
ORAL
ARGUMENT
Oral
argument will be allowed at the hearing of the appeal to emphasize and clarify
the written argument contained in the briefs already filed in court. Unless
otherwise directed, one hour on each side will be allowed for argument – Order 6 Rule 9(1) and (3).
EFFECT WHERE NO
NOTICE OF APPEAL WAS FILED
Where a notice or appeal was not filed,
the appeal will be struck out for being incompetent –
Amusa v. The State FCA./I/49/80 of 6/7/81.
Where however, a notice of appeal was given on a
wrongly headed form, the Court of appeal will waive the rules – Etuk Udo v. The State (1981) 6 S.C 157.
CONSTITUTION OF
THE COURT OF APPEAL
The Court of Appeal must be constituted by not less than three (3)
Justices of the court for the hearing and determination of any appeal – section 247 of the 1999 Constitution.
Each justice of the Court of Appeal shall
deliver his judgment in writing or may state in writing that he adopts the
opinion of any other justice who delivers a written judgment or opinion but
shall not be necessary for all the justices who heard a case to be present when
Judgment is to be delivered, but the opinion of such justices may be read by
any other justice.
APPEALS FROM THE COURT OF APPEAL TO THE SUPREME COURT OF
NIGERIA
The Supreme Court of
Nigeria is a court created under the Constitution. The court has jurisdiction
to the exclusion of any other court of law in Nigeria to hear and determine
appeals from the Court of Appeal.
An appeal from the
decision of the Court of Appeal to the Supreme Court may lie as of right or
with leave.
Under section 233(1) of the 1999 Constitution, an
appeal shall lie from 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, decision in Criminal
proceedings before the Court of Appeal.
b) Decisions
in Criminal proceedings on questions as to the interpretation or application of
the Constitution.
c) Decisions
in Criminal proceedings on question as to whether any of the provisions of Chapter IV of the 1999 Constitution 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 the sentence
of death imposed by any other court.
e)
Such other cases as may be prescribed by any Act
of the National Assembly.
CONSTITUTION OF THE SUPREME
COURT
The Supreme Court shall be duly constituted for hearing and
determination of an appeal if it consists of not less than five justices of the
Court – section 234 of the 1999
Constitution; section 10 of the Supreme Court Act, Cap. 424, LFN, 1990.
However, the court
shall be constituted as a full court, where it is sitting to consider an appeal
brought under section 233(2)(b) or (c) of the Constitution – section 234 of the 1999
Constitution. Seven Justices are
required to constitute a full court.
RIGHT OF APPEAL
Any right of appeal
from the decision of the Court of Appeal to the Supreme Court is exercisable in
the case of criminal proceedings at the instance of an accused person or at the
instance of the Attorney-General of the Federation or of a State or such other
authorities or persons as may be prescribed by any enactment.
PROCEDURE FOR APPEAL
Procedure for filling appeal or application for
leave to appeal is substantially the same as for the Court of Appeal. Also on
receipt of the record of appeal from the Court of Appeal, the Appellant shall
file in the Supreme Court within ten (10) weeks of such
receipt a brief being a succinct statement of his argument in the appeal. Such
brief must be served on the respondent. The brief which may be settled by
counsel shall contain what are in the appellant's view, and the issues arising
in the appeal – Order 9 Rule 3 of the
Court of Appeal Rules.
The respondent shall file in court and serve on the
appellant his own brief within eight (8) weeks after service on him of the
brief of the appellant.
The appellant may also file in court and serve the
respondent a reply brief within four (4) weeks after service of the
respondent's brief on him.
FILING OF NOTICE OF
APPEAL
The
period within which to appeal against the judgment of the Court of Appeal to
the Supreme Court is
thirty (30) days – section 27(2)(b)
Supreme Court Act Cap 424, Laws of Federation of Nigeria, 1990. However, by section 31(4) of the Supreme Court Act, where the Notice of Appeal
has not been filled within the prescribed period, application can be made to
the Supreme Court for extension
of time within which to file the Notice of Appeal. Upon genuine reasons being
shown for the delay, the Supreme Court may grant such extension. Until 1989, it was not possible to apply to the court for
extension of time, in a case of conviction involving sentence of death. But by
the Supreme Court of Nigeria
WITHDRAWAL OF APPEAL
An appellant may at
any time before the appeal is called on for hearing, serve on the respondent
and file with the registrar of the Supreme Court, a notice to the effect that
he does not intend further to prosecute the appeal.
Upon receipt of a
notice of withdrawal, the registrar must give notice of the withdrawal of the
appeal to the respondent, the prison authority and the registrar of the court.
BAIL PENDING APPEAL FROM DECISION OF COURT OF APPEAL TO THE
SUPREME COURT
The Supreme Court may
on the application of the appellant or where an appellant is present before the
court, if it thinks fit to do so without any application, admit the appellant
to bail pending the determination of his appeal.
The principles
governing the grant of bail pending the determination of an appeal in the
Supreme Court are the same as those in the Court of Appeal.
In the event of the
Supreme Court not making any special order or giving any special directions,
the recognizance of the appellant and of his surety or sureties may be taken
before the registrar. An appellant who has been admitted to bail must be
present personally at each and every hearing of his appeal and at the final
determination of the appeal. The Supreme Court may, in the event of such
appellant not being present at the hearing of his appeal, if it thinks fit so
to do, issue a warrant for the apprehension of the appellant.
The Supreme Court may
from time to time enlarge the recognizance of the appellant or of his sureties
or substitute any other surety for a surety previously bound as it thinks fit.
At any time after an appellant has been released on bail, the court may, if
satisfied that it is in the interest of justice so to do, revoke the order
admitting him to bail and issue a warrant for the apprehension of the
appellant.
RIGHT OF AN APPELLANT TO BE
PRESENT AT THE HEARING
An accused is not
usually under a legal obligation to be present at the hearing of his appeal at
the Court of Appeal. Where judgment is given and the accused is not present,
time of filing notice of appeal does not begin to run until he is notified in
the prison custody. If after notification, he hands over his notice of appeal
to the prison authorities, it is immaterial that the prison authorities delayed
in filing the notice at the court registry. By section 30(1)
Supreme Court Act, if he desires it, he shall be entitled to be present. Note
however the exceptions contained in section 30(1) Supreme Court Act. In any
event, the accused shall bear all expenses of and incidental to his transfer to
and from the place where the Court sits – section
30 (6) of the Supreme Court Act.
OPINIONS OF ABSENT
JUSTICES OF THE COURT
“Any
Justice of the Supreme Court (who heard any cause or matter) can after a
decision has been arrived at by all the justices, pronounce the opinion of
another justice, who for one reason or another, is unable to reduce his opinion
into writing or be present when the judgment in the case is being delivered by
each of the other justices" – Per Fatayi Williams C.J.N. in Attorney-General of Imo State v. The
Attorney-General of Rivers State (1983) 8 S.C. 10.
BRIEFS
Within ten (10) weeks
of the receipt of the record of appeal from the registrar of the Court of
Appeal, the appellant must file in the registry of the Supreme Court and serve
on the respondent a brief which may be settled by counsel, being a succinct
statement of his argument in the appeal.
The respondent must
file in the registry of the Supreme Court and serve on the
appellant his own brief within eight (8) weeks of the service on him of the
appellant’s brief. The appellant may also file in the court and serve on the
respondent, a reply brief within four (4) weeks of the service of the
respondent’s brief on him, except, where good and sufficient cause has been
shown, a reply brief must be filed and served at least three (3) days before
the date set down for the hearing of the appeal.
Argument in respect
of a cross-appeal or in respect of a respondent’s notice may be included by any
party in his brief for the original appeal without special application, such an
inclusive brief clearly stating that it is filed in respect of both the
original appeal and the cross-appeal or respondent’s notice.
Ten (10) copies of all briefs shall be filed – Order 6 Rule 6(a)
Supreme Court Rules.
EFFECT OF FAILURE TO FILE A BRIEF
If an appellant fails
to file his brief within the stipulated time period or within the time as
extended by the Supreme Court, the respondent may apply to the Supreme Court
for the appeal to be dismissed for want of prosecution. If the respondent fails
to file his brief, he will not be heard in oral argument except by leave of the
court.
EXTENSION OF TIME WITHIN WHICH TO FILE NOTICE OF APPEAL
Generally when time
within which to file notice of appeal has expired, an application may be
brought for leave of the appellate court to file the appeal out of time.
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