LEGAL PRINCIPLE: APPELLATE PRACTICE — Appeal to Supreme Court — Right of Appeal — Section 213 of 1979 Constitution — Leave Required for Grounds of Fact or Mixed Law and Fact
PRINCIPLE STATEMENT
In appeals to the Supreme Court, leave to appeal must be obtained from either the Court of Appeal or the Supreme Court before an appeal can lie from the decision of the Court of Appeal where the ground of appeal involves a question of fact or mixed law and fact.
RATIO DECIDENDI (SOURCE)
Per Obaseki, JSC, in Metal Construction (West Africa) Ltd v. Migliore (1990) NLC-2511985(SC) at p. 24; Paras D–A.
"The state of the law as provided by the Constitution therefore is that in appeals to the Supreme Court, leave to appeal must be obtained by a party from either the Court of Appeal or the Supreme Court before an appeal can lie from the decision of the Court of Appeal where the ground of appeal involves question of fact or mixed law and fact."
EXPLANATION / SCOPE
Under Section 213 of the 1979 Constitution (and similar provisions), appeals to the Supreme Court on grounds of fact or mixed law and fact require prior leave. Appeals on grounds of law alone may be brought as of right. The requirement is jurisdictional. Failure to obtain leave renders the appeal incompetent. The appellant must correctly classify the grounds. If any ground requires leave and leave was not obtained, that ground (and possibly the entire appeal) is incompetent. The court will strike out incompetent grounds or the entire appeal. The principle ensures that the Supreme Court is not burdened with appeals lacking merit or raising only factual disputes. Leave is discretionary.
