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The Expulsion of Section 233 (3) From The Constitution of The Federal Republic of Nigeria, 1999 (As Amended); A Limitation on The Appellate Jurisdiction of The Supreme Court

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On the 29th day of November, 2010, by the Alteration Act of 2010, some of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (The Constitution) were amended. Of importance to this article is the amendment to Section 233 of the Constitution.

Pre-Second Alteration

Prior to the second Alteration of the Constitution, Section 233 of the Constitution provided for the appellate jurisdiction of the Supreme Court of Nigeria. Section 233 of the Constitution provided for appeals that come to the Supreme Court as of right and those that could only be brought with the leave of court first sought and obtained. For ease of reference and clarity, Section 233 (2) of the Constitution prior to the Alteration provided that;

“(2) An appeal shall lie form decisions of the Court of Appeal to the Supreme Court as of right in the following cases:

(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;

(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being 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 on any question –

(i) whether any person has been validly elected to the office of President or Vice-President under this Constitution;

(ii) whether the term of office of office of President or Vice President has ceased;

(iii) whether the office of President or Vice-President has become vacant; and

(c) such other cases as may be an Act of the National Assembly.”

Whilst the foregoing clearly provides for appeals from the decision of the Court of Appeal to the Supreme Court as of right, Section 233 (3) specifically provides for appeals that could only be entertained by the Supreme Court with leave of the court first sought and obtained before presentation of such appeals.

(3) 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.”

A calm perusal of the foregoing would undoubtedly reveal that the Supreme Court is imbued with the jurisdiction to entertain appeals from the decision of the Court of Appeal. It is also not in doubt that Section 233 (2) as reproduced above gives an aggrieved party the latitude to approach the Supreme Court as of right for review of the decision of the Court of Appeal. Furthermore, Section 233 (3) gives a party whose appeal does not fall within the categories listed in Section 233 (2) the privilege to also approach the Supreme Court albeit with leave of the court for review of the decision of the Court of Appeal. One of such appeal not covered by section 233 (2) is an appeal on grounds of mixed law and fact. Appeals of this nature get to the Supreme Court only with leave of court.

Implication of the Second Alteration

As earlier stated, on the 29th of November, 2010, an Act to alter some of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 was passed. By the said alteration, Section 233(3) of the Constitution which vested the Supreme Court with the jurisdiction to entertain appeals otherwise than those listed in Section 233 (2) albeit with leave of court was completely expunged from the Constitution. The point being made is that by the alteration, the section of the constitution that empowers the Supreme Court to hear and determine appeals with leave have been deleted.

Courts generally are established by laws and it is the enabling law that structures the jurisdiction of each courts. The Constitution of the Federal Republic of Nigeria 1999 as amended creates Courts in Nigeria and also structures their jurisdictional coverage. A court can only act within its jurisdictional precinct. See Akujinwa v Nwaonuma (1998) LPELR-391(SC); Adelekan v Ecu-Line NV (2006) LPELR-113(SC); Nwaigwe v Okere (2008) LPELR-2095(SC).

“The Court cannot exercise jurisdiction to hear appeal unless such jurisdiction is conferred by the Constitution or by some enabling statute.”

That said, the expulsion of Section 233(3) of the Constitution which section formed part of the appellate jurisdictional sphere of the Supreme Court, is without doubt a restriction/limitation on its appellate jurisdiction. The apparent implication of this is that the Supreme Court can only entertain appeals as of right, that is, appeals expressly outlined in section 233 (2). It is thus safe to conclude that an appeal which does not fall within the specifics listed in Section 233(2) cannot be entertained by the Supreme Court as the Court would have no Constitutional backing to so do.

Although, the Supreme Court have not had the opportunity to pronounce on this position so as tofinally lay it to rest. However, in the case of Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195, the Supreme Court per Rhodes Vivour JSC had a shot on this. It is however necessary to state that the issue of whether the Supreme Court can entertain an appeal of mixed law and fact with leave of Court i.e appeals not listed in Section 233(2) of the Constitution, was not a live issue in the cited case. The Learned Law Lord only took a swipe; obiter dictum where it was posited thus;

… I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Act, 2010. By the alterations, there is no longer section 233(3) of 1999 Constitution which allowed leave to appeal to the Supreme Court. That is to say, by virtue of section 233(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Supreme Court can only hear appeal where the grounds involves questions of law. The apex Court no longer has jurisdiction to hear appeal where grounds of appeal involve questions of mixed law and facts. Appeals on grounds of mixed law and facts ends in Court of Appeal.’’

Going by the above excerpt from the decision in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195;, it is evident that the Supreme Court is no longer clothed with the jurisdiction to entertain appeals of mixed law and fact or any other appeals with leave of court. Such appeal terminates at the Court of Appeal. Although, one can argue that this decision (the excerpt) not being a ratio decidendi in the said case, is not of binding effect. That much I concede. However, on the premise of the earlier submission that Courts only act on the powers and jurisdiction conferred on it by its enabling law, can the Supreme Court whose jurisdiction to entertain appeals of mixed law and fact has been taken away by the amendment, still entertain appeals not within its jurisdictional purview?  I am afraid, No. To do so would be to act without Constitutional support.

In concluding this piece, it is important to mention and acknowledge the fact that despite the deletion of the subject section by the second alteration and despite the stance maintained by the Law lord (though obiter) in Shittu vs P.A.N Ltd (supra), the Apex court still entertains, hears and determines appeals on grounds of mixed law and fact. The Court has however not had the opportunity to specifically address and pronounce on its constitutional and/or statutory competence to hear and determine appeals of this nature.

Appeals on grounds of mixed law and fact have no business on the docket of the Supreme court. Same ought to terminate at the Court of Appeal.

However, it is safe to conclude that the expulsion of Section 233(3) from the Constitution by the second alteration though a clear limitation of the appellate jurisdiction of the Supreme court, operates in theory alone for now as the Court still entertains appeals otherwise than as of right.

WRITTEN BY: JAMIU AGORO, MCIArb.

ASSOCIATE PARTNER

PINHEIRO LP.

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