Constitutional right of appeal

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(44) CONSTITUTIONAL RIGHT OF APPEAL

733. Distinction between appeals under Section 213(1) and 220(1) of the

1979 Constitution.

“In Kalu v. Mbuko (1988) 3 N.W.L.R. (Pt. 8) p. 86 at 97 Kolawole, J.C.A., said

thus: - “Although the first ground of appeal lumps together in one ground error of law

and misdirection which is irregular and improper, it is my view that an appeal lies as

of right from final decision of the High Court sitting at first instance whether the

ground of appeal involves questions of law alone or questions of facts, or questions

of mixed law and fact. That is the distinguishing feature between Sections 220(1) of

the Constitution.” - Per Musdapher, J.C.A., in Iredia v. First Bank Suit No. CA/B/

212/88; (1991) 3 N.W.L.R. (Pt. 182) 751 at 762-763.

734. Lower Court’s power to hear the procedural application to the

respondent’s Constitutional right of appeal.

“The lower Court has the powers to hear the procedural applications leading to the

actualization of the respondent’s constitutionally guaranteed right of appeal see

Ikeakwu v. Nwamkpa (1966) 4 N.S.C.C. 83 at 86 where Brett, J.S.C., stated inter

alia: - “All appellate jurisdiction is statutory and the power to adjudicate on an appeal,

by allowing or dismissing it, includes the power to decline to adjudicate on the merits

where an appeal is not properly before the Court. This Court frequently exercises

such a power. In such a case the usual course is to strike out the appeal, and although

an order dismissing it, does not thereby become a decision on the merits and does not

necessarily preclude a subsequent decision on the merits if the matter can be re

opened by an appropriate procedure.” - Per Onnoghen, J.C.A., in Mukadam v.

Akanbi Suit No. CA/IL/22/99; (2000) 19 W.R.N. 81 at 91; (2000) 13 N.W.L.R. (Pt.

685) 616 at 626.

(45) COURT OF APPEAL

735. Appeal cannot lie over ‘no decision’.

“In the consideration Section 220(1) of the Constitution is bound to be considered

which is also an issue raised in the substantive appeal because if there was no

decision this Court lacks competency and jurisdiction to entertain the appeal as

competency goes to jurisdiction Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R. page

341, Adigun v. Governor of Osun State (1995) 3 N.W.L.R. (Pt. 385) page 513

S.C.” - Per Onalaja, J.C.A., in Okehi v. I.E.A. Ltd. Suit No. CA/PH/140M/96;

(1997) 11 N.W.L.R. (Pt. 529) 431 at 437.

736. Appeal Court calling on counsel to support the decision of the lower

Court.

“There is no doubt that the procedure of calling on a respondent’s counsel to support

a judgment of the lower Court is irregular and most undesirable.” - Per Sowemimo,

J.S.C., in Anla v. Ayanbola Suit No. S.C. 228/1975; (1977) 11 N.S.C.C. 162 at 165.

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