LEGAL PRINCIPLE: APPELLATE PRACTICE — Cross-Appeal — Requirement of Leave to File Cross-Appeal and Consequence of Non-Compliance
PRINCIPLE STATEMENT
One condition giving a court jurisdiction is that the action is initiated by due process of law. Where leave was not obtained before filing a cross-appeal, the cross-appeal is incompetent. Concession by counsel that leave was not obtained makes the cross-appeal incompetent.
RATIO DECIDENDI (SOURCE)
Per Mohammed, JSC, in Sowemimo & Anor v. State (2004) NLC-452002(SC) at pp. 8–9; Paras E–B.
"One of the conditions which gives a court jurisdiction is that the action is initiated by due process of law. See Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341; (1962) All NLR 581. We permitted Mr. Arthur-Worrey to argue the cross-appeal which the Lagos State filed against the judgment of the Court of Appeal. After the submissions by respective counsel of the parties had been closed and the court adjourned for judgment, Mr. Aribisala filed a notice of objection to the competency of the cross-appeal because the state did not obtain leave before filing it. At the hearing of the notice of preliminary objection, Mr. Arthur Worrey conceded that he did not obtain leave before filing the cross-appeal. This undoubtedly had made the cross-appeal incompetent."
EXPLANATION / SCOPE
Leave is required to file a cross-appeal; non-compliance renders the cross-appeal incompetent. Due process of law includes obtaining necessary leave. The principle applies to appellate practice. Counsel’s concession of failure to obtain leave confirms incompetence. The court cannot hear an incompetent cross-appeal. Proper initiation of proceedings is a jurisdictional requirement.
