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LEAVE OF COURT MANDATORY WHERE CONDITION PRECEDENT

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Dictum

By virtue of section 233 of the 1999 Constitution of Nigeria and section 22 of the Supreme Court Act Cap 15 Laws of Nigeria 2004, the word leave means permission. Therefore an appellant is bound, where necessary to seek the formal permission of the court below before setting an appeal in process. Leave of court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained.

– Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

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NOT SEEKING LEAVE TO APPEAL FACTS IS FATAL

The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground. However, one ground of appeal on law in a Notice of Appeal, I must observe, is capable of sustaining an appeal but not otherwise in which case the Notice of Appeal as well as the grounds of appeal is incompetent and liable to be struck out. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

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WHERE NO LEAVE OBTAINED, ISSUES AND ARGUMENTS THEREON WILL BE STRUCK OUT

It is true that once no leave was shown to have been obtained by the Appellant before filing the grounds of appeal alleging error of facts based on evidence the said grounds together with the issues distilled therefrom and the arguments proffered thereon are liable to be struck out. See Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Ifediorah v. Ume (1988) 2 NWLR (pt. 74) 5.

— M.U. Peter-Odili, JSC. Ugo v. Ugo (2007) – CA/A/110/2007

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LEAVE IS TO BE SOUGHT FOR SUPREME COURT TO DETERMINE AN ISSUE NOT RAISED AT LOWER COURT.

Now, any party to an appeal who seeks the determination of an issue that was never raised at and determined by the trial and/or lower Court must show that it has sought and obtained the leave of the Court earlier. It is long settled that where no leave was sought and obtained, and one is required, the appeal is incompetent and liable to be struck out. See EHINLANWO V. OKE & ORS (2008) LPELR – 1054 (SC) and METUH V. F.R.N (2017) 4 NWLR (PT 1554) 108 at 121.

— M.D. Muhammad, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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LEAVE OF COURT AND INDORSEMENT OF WRIT

Now whether or not the leave of the Judge in Chambers was obtained in any particular case is a question of fact which should be alleged in a challenge to the validity of the Writ. Such challenge should be made at the High Court stage so that it will form an issue in the case. Thus the trial Court will consider the issue and our appellate Courts will then review the decision of the High Court thereby fulfilling their role as appellate Courts. Also if a Writ is not properly indorsed as required by Section 97 of the Sheriffs and Civil Process Act, such a writ should be properly tendered and made an exhibit in the case. When the case goes on appeal, the appellate Court will then easily refer to the exhibit and receive submissions on it.

– Oputa, JSC. Adegoke v. Adesanya (1989)

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WHERE LEAVE IS REQUIRED BUT WAS NEVER FIRST SOUGHT AND OBTAINED

The law is settled that where leave is required and it was neither first sought nor obtained, any process filed or step taken by a party will be. incompetent and liable to be struck out or discountenanced. See Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 213.

— M.A.A. Adumein JCA. Yusuf Kabir v. APC, INEC, NNPP (CA/KN/EP/GOV/KAN/34/2023, 17TH DAY OF NOVEMBER 2023)

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LEAVE OF COURT IS A CONDITION PRECEDENT FOR APPEAL NOT OF RIGHT

Leave means permission. Where an appeal is not as of right, leave under section 233 (3) of the constitution is a precondition that an applicant/appellant must seek and obtain before his appeal is entertained. The appeal would be declared incompetent and thrown out if the applicant failed to fulfill the pre-condition.

– Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

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