LEGAL PRINCIPLE: APPELLATE PRACTICE — Leave to Appeal — Interlocutory Decision on Discretion — Necessity of Leave
PRINCIPLE STATEMENT
A challenge to the improper exercise of discretion raises a question of mixed law and fact; therefore, leave must be obtained to appeal from a decision of the Court of Appeal given in the exercise of its discretion.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in CBN & Anor v. Okojie & Ors (2002) NLC-2212001(SC) at pp. 8–9; Paras E–A.
"A discretion is exercisable not on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. … When a challenge is made as to the improper exercise of discretion, it will necessarily involve facts and circumstances, and it is usually at best, a question of mixed law and fact: see Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 84; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299. Therefore, by virtue of section 233(3) of the 1999 Constitution, leave must be obtained in order to appeal from a decision of the Court of Appeal given in the exercise of its discretion. As leave was not so obtained in this case, the notice of appeal is also incompetent on that ground."
EXPLANATION / SCOPE
A challenge to the exercise of judicial discretion raises mixed law and fact. Such an appeal requires leave under Section 233(3) of the 1999 Constitution. The appellant cannot appeal as of right. The principle ensures that appellate courts do not lightly interfere with discretionary decisions. The appellant must obtain leave from the Court of Appeal or the Supreme Court. Failure to obtain leave renders the appeal incompetent. The court will strike out the appeal. The rule applies to all interlocutory decisions involving discretion. The appellant must show special circumstances for leave. The principle promotes respect for trial court discretion.