APPELLATE PRACTICE — Leave to Appeal — Effect of Failure to Obtain Leave When Required
Principle Statement
The law is therefore trite… that where the condition precedent to the exercise of the right of appeal is necessary but has not been fulfilled, there is no appeal. To use the legal term, the appeal is then said to be incompetent. Any notice of appeal filed with only such grounds of facts or mixed law and facts without first seeking and obtaining the required leave, is incompetent, void and of no effect.
Ratio Decidendi (Source)
Per Mohammed, JSC, in Faith Enterprises Ltd v. B.A.S.F Nigeria Limited (2010) NLC-123-22-2002(SC) at p. 17; Paras A–C.
"The law is therefore trite… that where the condition precedent to the exercise of the right of appeal is necessary but has not been fulfilled, there is no appeal. To use the legal term, the appeal is then said to be incompetent. Any notice of appeal filed with only such grounds of facts or mixed law and facts without first seeking and obtaining the required leave, is incompetent, void and of no effect."
Explanation / Scope
This principle establishes that failure to obtain leave when required renders the appeal incompetent, void, and of no effect. The principle applies where leave is a condition precedent. It ensures that parties comply with procedural requirements. The principle reflects the mandatory nature of leave. It prevents appeals from proceeding without leave. The court must strike out incompetent appeals. The principle provides guidance on the effect of failure to obtain leave.
