NOT SEEKING LEAVE TO APPEAL FACTS IS FATAL

MATTERS OF FACT IN APPEAL NEEDS LEAVE

Appeals to this court by leave which otherwise means permission, relate to matters of facts or mixed law and fact for which leave of the court below or this court must be obtained as a matter of condition precedent. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

LEAVE OF COURT MANDATORY WHERE CONDITION PRECEDENT

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)

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)