LEGAL PRINCIPLE: APPELLATE PRACTICE – Interlocutory Decisions – Failure to Appeal – Whether Constitutes Acceptance of Decision
PRINCIPLE STATEMENT
Failure to appeal does not unequivocally indicate an acceptance of a decision where, as in this case, there is a clear demonstration of intention to challenge the decision although counsel had erred in his initial choice of channel of that challenge.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Shanu v. Afribank Nigeria Plc (2000) NLC-1691997(SC) at pp. 7–8; Paras E–A.
"Failure to appeal does not unequivocally indicate an acceptance of a decision where, as in this case, there is a clear demonstration of intention to challenge the decision although counsel had erred in his initial choice of channel of that challenge."
EXPLANATION / SCOPE
Failure to appeal an interlocutory decision does not necessarily amount to acceptance. Where a party demonstrates intention to challenge the decision but mistakenly pursues the wrong procedural channel (e.g., believing it could be challenged on final appeal), that does not signify acquiescence. The critical inquiry is whether there was an unmistakable intention to accept the decision. Mere failure to appeal, coupled with evidence of continued opposition, does not constitute waiver. This prevents parties from being trapped by procedural missteps where substantive challenge was clearly intended.