A right of appeal is a creation of statute and where there is no provision for appeal in the statute creating rights of appeals, no such rights exist. A right of appeal is exercised only by a party to proceedings, must be aggrieved by the judgement of the trial court and has been adversely affected by the decision of the court. See Okoye v. Tobechukwu (2016), Nunku v The Police
The High Court of all the states and the Federal Capital Territory have appellate jurisdiction over the decisions of the magistrate court within their jurisdiction. See S.257(2) and S.272 (2) CFRN 1999.
Only parties in a criminal trial may appeal; the prosecution and the defendant. A person who is neither the prosecutor nor the defendant cannot appeal either as of right, or with leave, See Akinbiyi v. Adelabu (1965)
He may appeal as of right against the decision of a magistrate in the following cases:
(a) Where an order of acquittal or discharge has been made, on the ground that the order is erroneous in law and the proceedings, or any part is in excess of jurisdiction
(b) imposing a sentence below the minimum or failed to make an order prescribed by the law.
See S.67 Magistrate Courts Law of Lagos
Yes, an accused may appeal. Upon a plea of guilty, the prosecution should go ahead and present all the facts constituting the offence and the defendant must also admit them. A conviction on a plea of guilty without compliance with this procedure will afford the accused a successful appeal. See Essien v. R, Osuji v. IGP (1956)
An appeal is different from a case stated which can take place either before or after judgment. A party or the court may refer a matter to a higher court for its opinion on points of law or interpretation of a law or the constitution. See S.295 CFRN 1999
The following parties may refer a matter to a higher court for its opinion on a point of law, The Attorney General, the prosecution or the accused and the magistrate or high court judge. See S.65 Magistrates Court Law Lagos, S.259 CFRN 1999
Yes, it can be made, however it is only the Attorney General of a State that may state a case from the magistrate court to the high court after judgement and same application is to be made within six months after judgement. See S.66 Magistrate Court law 2009.
An Appeal against a judgement of the magistrate court is to be lodged within 30 days of the decision. After that period, a leave of the High Court would be needed to bring an appeal. See S.485 ACJA, S.68 MCL Lagos. Where it is against the sentence of caning, appeal is to be filed within fifteen days. S.280(2), 281(1) CPCL
Every appeal is signified by a notice of appeal, it may be written or oral. Where no notice of appeal is filed, there is no appeal. See Uwazurike v. Attorney General of the Federation (2007) The Notice of Appeal must be given to the registrar of the magistrate court and signed by the appellant. See S.69(1) MCL, S.485(3) ACJA
A ground of appeal is an allegation of error of law or fact made by an appellant as the defect in the judgement and will be relied upon to quash the judgement of the trial court. Some of the grounds are that the lower court has no jurisdiction in the case, that the lower court has exceeded its jurisdiction in the case, that the decision has been obtained by fraud; that admissible evidence has been rejected, or inadmissible evidence has been admitted by the lower court. See S.485(9) ACJA, Adebisin v The State (2014)
According to section 241 of the 1999 Constitution, an appeal shall lie as of right in the following cases;
a) Final decisions of the State or Federal High Court sitting at first instance.
b) Where the ground of appeal involves questions of law alone.
c) Decisions on questions as to the interpretation or application of the constitutions.
d)Decisions as to whether any of the provisions of Chapter IV of the Constitution has been or is likely to be contravened in relation to any person.
e) Decisions in any criminal proceedings in which the Federal or State High Court has imposed a sentence of death.
Decisions not falling within the circumstances mentioned in section 241 of the 1999 Constitution can only be appealed against with leave of the High Court or Court of Appeal. See S.242 CFRN 1999
Appeals from the Court of Appeal to the Supreme Court is provided for in section 233(2) of the 1999 Constitution, it states as follows;
a) where the ground of appeal involves questions of law alone,
b) On questions as to the interpretation or application of the constitution,
c) Decisions in any criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, or is likely to be, contravened in relation to any person;
d)decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court;
e) Decisions not falling within any of the above mentioned can only be appealed against with leave of the Court of Appeal or Supreme Court.
See S.233(2) CFRN 1999
Appeals from State or Federal High Courts to the Court of Appeal must be filed within ninety days from the date the decision being appealed against is delivered. See S.24(2)(b) Court of Appeal Act. An appeal from the Court of Appeal to the Supreme Court is to be filed within thirty days from the date of the judgement being appealed against. See S.233(2) CFRN 1999.
Note the time within which a prosecutor must appeal a verdict of murder/manslaughter is seven days from the date of sentence. There is no extension of time. See State v. Omoyele (2017)
The hearing of appeals is by Brief Writing, it’s a concise document detailing the arguments of a party at the appeal. There are three types; the appellant brief, respondent’s brief and reply brief.
The appellant shall file a written brief within forty-five days of the receipt of the record of appeal. The respondent brief is to be filed within thirty days of the service of the appellants brief on him. While the reply brief is made by the appellant, if necessary, in response to the respondent’s brief within fourteen days. See Order 19, Rule 2,4(1), 5(1) Court of Appeal Rules 2016
Yes, Oral arguments will be allowed at the hearing of the appeal to emphasize and clarify the written argument contained in the briefs already filed in court. See Order 19 Rules 9(1)(3).
No it does not, an appellant desirous of a stay of execution of the sentence of the court must apply for a stay of execution in addition to filing his notice of appeal. See section 74 of the Magistrates Court Law Lagos.
The Court of Appeal have the discretion to admit additional evidence. Order 4 Rule 2 of the Court of Appeal rules provide for additional evidence on exceptional grounds. Order 2 Rule 15 of Supreme Court rules dictates it shall be by Notice of Motion, supported by an affidavit.
The special grounds are as follows;
a) The evidence sought to be adduced is such as could not have been with reasonable diligence obtained for use at trial.
b) The evidence if admitted would have a n important effect on the whole case.
c)The fresh evidence would have influenced the judgement of the lower court in favour of the applicant if it had been available at the trial court.
d)The evidence should be weighty and material and not irrelevant and immaterial.
See Amaechi v. INEC (2007), EFCC v. Fayose & Anor (2018)
Yes he will, a person convicted of an offence is no longer presumed innocent but is in fact a prisoner and will have his right to freedom of movement and liberty curtailed. (see S.35(1)(a) CFRN 1999) Both the trial court and appellate courts have power to admit to bail a person convicted of an of an offence by the trial court pending his appeal. S.28(1) Court of Appeal Act empowers the Court of Appeal to grant bail in such circumstances.
The following situations have been pronounced upon by the court to constitute special circumstances:
a) Where the applicant will be of assistance for the preparation of the real case for appeal
b) Where to refuse the application will put the applicant's health in serious jeopardy. Fawehinmi v. The State (1990)
c)Where a sentence is manifestly contestable, refusal of bail in such circumstances could inflict a greater injury on the applicant who may well have served an illegal sentence. See Fawehinmi v. The State (1990)
d)The court also considers the length of time which must elapse before the appeal can be heard and the length of sentence appealed against. Obi v. State (1992)
e) Where the appellant was granted bail in the course of trial, and he did not jump bail. See Munir v. F.R.N (2009)
f) Where the appellant is a first-time offender. See Buwai v. State (2004)
An abatement of appeal happens when a person who has been convicted and sentenced to terms of improvement dies after filing his appeal. Section 64 Magistrate Court Law 1994. See also Re: Abdullah (2018)
No he cannot, where the appellant dies his estate cannot continue with the appeal unless it is an appeal against a fine. Where the accused/appellant dies his estate is liable to pay the fine. S.75 MCL Lagos, S.291 CPCL.
An appeal may be abandoned explicitly or by inference. It is abandoned explicitly by giving a written notice of abandonment signed by the appellant or his counsel to the registrar of the court below not less than 2 days before the date fixed for hearing. It is abandoned impliedly where the appellant fails to file his grounds of appeal after filing his notice of appeal. See Order 17 Rule 18,19 Court of Appeal rules, Order 9 Rule 9(1)(3) Supreme Court Rules.
The Court of Appeal must be constituted by not less than 3 Justices of the court for the hearing and determination of any appeal. See S.247 CFRN 1999. The Supreme Court shall be duly constituted for hearing and determination of an appeal if it consists of not less than five justices of the Court. See S.234 CFRN
The principles guiding the order of a retrial are thus;
a) That there are no special circumstances as would render it oppressive to put the appellant on trial a second time.
b) That there has been an error in law including the observance of the law of evidence or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice;
c)That error or irregularity aside, the evidence taken as a whole discloses a substantial case against the appellant.
d)That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.
e) That the offence(s) for which the appellant was convicted are not merely trivial.
See Yesufu Adobundu v. The State (1959)