Appeals to The Supreme Court: The Pain of Leave and the Peril of Mixed Law and Fact

By Ujah Israel Ujah Esq., B/Phil, LLB, LLM, (Ph.D. in V)

Introduction

There is a recurring scene in appellate courtrooms across Nigeria—especially at the Supreme Court—that evokes quiet distress among lawyers. A well-dressed counsel announces their appearance, fully armed with years of advocacy, confident in the justice of their client’s cause. Then comes the dreaded question from the bench:

“Is your appeal on grounds of law, or mixed law and fact?”

When counsel hesitates or answers “mixed law and fact,” the next question follows like a blade:

“Did you seek or obtain leave?”

If the answer is “No, My Lords,” the predictable outcome is a forced withdrawal of the appeal or its inevitable striking out. No amount of eloquence can save the situation at that point. The damage is done—not to mention the embarrassment and the potential malpractice liability.

This article explores the legal regime governing appeals to the Supreme Court, particularly the requirement of leave where grounds involve questions of fact or mixed law and fact. It identifies the doctrinal root of the problem, examines the practical confusion it causes, and makes a case for reform or re-orientation.

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1. The Constitutional Framework: When Leave is Required

Section 233(2) of the 1999 Constitution (as amended) outlines when an appeal can lie as of right to the Supreme Court. These include:

Appeals from decisions of the Court of Appeal in civil or criminal proceedings where the ground of appeal involves questions of law alone;

Decisions interpreting or applying the Constitution;

Decisions involving fundamental rights;

And specific other categories.

Outside these situations, Section 233(3) provides that:

> “Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”

What this means in practice is that an appeal that raises questions of fact or mixed law and fact requires leave before it can validly be brought.

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2. What Are Grounds of Law, Fact, and Mixed Law and Fact?

This is the heart of the crisis. The Supreme Court in Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484, Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718, and Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157 has drawn distinctions:

Grounds of Law: These questions only the correctness of the decision in law, based on facts that are not in dispute.

Grounds of Fact: These challenge the finding or evaluation of facts by the lower court.

Mixed Law and Fact: These combine both—a legal conclusion drawn from facts or where the complaint is that legal principles were wrongly applied to a set of facts.

Unfortunately, the boundary between these categories is often unclear, even to seasoned lawyers. A ground that appears purely legal may actually be mixed when scrutinized. For instance, a complaint that “the trial court failed to properly evaluate evidence” often involves mixed law and fact, not law alone.

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3. The Consequences of Misclassification

This is where the shoe pinches. If a lawyer files an appeal to the Supreme Court without seeking leave, believing the grounds are of law alone, but the court later finds they are of mixed law and fact, the entire appeal becomes incompetent and liable to be struck out.

This has led to embarrassing courtroom scenarios, where counsel are compelled to withdraw their briefs, apologize profusely, or watch years of litigation crumble in a minute. Worse, it can trigger professional negligence claims, especially where a client suffers loss due to the lawyer’s failure to obtain leave.

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4. Why This Keeps Happening: The Systemic Challenge

Several factors contribute to this recurring pitfall:

Doctrinal complexity: The distinction between law and mixed law and fact is notoriously unclear. Even the courts sometimes disagree.

Lack of pre-filing scrutiny: Some lawyers file appeals without robust peer review or consultation on whether leave is required.

Urgency and oversight: In a rush to meet deadlines, the leave requirement is overlooked.

Assumptions based on lower court labels: Counsel may wrongly assume that because the Court of Appeal heard the case on appeal as of right, the Supreme Court would do the same.

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5. What Can Be Done: Practical and Doctrinal Solutions

a. Draft Grounds Carefully

Lawyers must be trained to draft and analyze grounds of appeal with precision. Vague, poorly worded, or emotional grounds should be avoided. Each ground must be examined to classify its nature.

b. Seek Leave Where in Doubt

When in doubt, apply for leave. The Supreme Court itself has advised that where it is unclear whether a ground is one of law or mixed law and fact, the safer course is to obtain leave.

c. Judicial Reform and Simplification

There is a strong case for constitutional or procedural reform. A simplified appeal regime could permit all appeals to lie with or without leave while allowing the court to strike out frivolous ones early.

d. Better Continuing Legal Education (CLE)

The NBA, law faculties, and appellate courts should collaborate to offer specialized training on appellate procedure, including real-life scenarios and mock appellate briefs.

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6. Conclusion: A Call for Caution and Clarity

The procedural rules governing appeals to the Supreme Court are not mere technicalities. They are jurisdictional thresholds. A misstep at this gatekeeper stage can end a meritorious appeal before it even begins.

It is painful—both professionally and emotionally—for a lawyer to approach the apex court with confidence only to be turned away due to a failure to seek leave. It is even more painful for the client whose journey for justice ends not on the merits, but on avoidable technical grounds.

Let this be a call to vigilance, discipline, and reform. The appellate pathway is not just a corridor of review—it is a corridor of responsibility. We must tread it wisely.

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Ujah Israel Ujah Esq.

Legal Practitioner | Advocate for Procedural Clarity

Abuja, Nigeria | ujahisraelujah@gmail.com

Source: BarristerNG