Nigerian Law Forum
TRINITY PRAYERS IN APPEAL
This article explains how to file an application that implements the trinity prayers of appeal in Court. In Nigeria, the Constitution1 grants the courts both original and appellate jurisdiction to hear and determine matters brought before it.
The appellate jurisdiction is exercised by superior courts and the Supreme Court is the final court to exercise and exhaust this right2. A party who is not satisfied with the decision of a lower court has a right to appeal the decision by making an application to the superior court.
An appeal to challenge the decision of the lower court must be brought within the prescribed time or before the prescribed time expires. Otherwise, an application seeking to extend the time has to precede the application to appeal. The focus of this article is to show the necessary requirements that should be contained in an application that seeks to extend the time within which an appeal can be brought.
Right of Appeal
The Constitution allows an aggrieved party to appeal against the decision of a court, where the aggrieved party is not satisfied with the decision. This right to appeal can be exercised either as of right or with leave in a final or interlocutory decision of the court. The exercise of both rights are provided for in different provisions in the Constitution.3
Appeal as of Right
An appeal lies as of right from a lower court to a superior court against the final decision of the lower court sitting as a court of first instance. A court is said to sit at first instance when it hears and delivers judgement in the exercise of its original jurisdiction. This article will limit its discourse to appeals from the Federal High Court or State High Court to the Court of Appeal which is provided for under sections 241 and 242 of the Constitution.
There are some requirements that must be met for an appeal to lie as of right. They are:
The decision to be appealed must be the final decision4 and not an interlocutory decision. Where it is an interlocutory decision, it cannot be appealed as of right and a different consideration governed by section 241 (b) of the 1999 Constitution will apply.
The decision must have been made by the Federal High Court or State High Court sitting as a court of first instance.
The appeal must be brought within the time limit as prescribed in section 25 (2) (a) of the Court of Appeal Act.
In exercising the right of appeal, no permission of court is necessary to be obtained before the notice of appeal can be filed.5
Appeal with Leave
Where a decision delivered by the Federal High Court or State High Court cannot be appealed against as of right, the decision will be appealed with leave of court. There are several instances that require leave to appeal. For example;
Where the decision to be appealed is a final decision of the State High Court delivered in the exercise of its appellate jurisdiction6
Where the decision to be appealed is an interlocutory decision
Where the grounds of appeal have questions of mixed law and facts
An appeal with leave means the permission of the court will have to be obtained before the appeal is filed.7 Where the leave of the court is a required pre-condition to a valid appeal, an aggrieved party cannot file the appeal without obtaining leave. Where he does, the appeal would be considered incompetent and the Court of Appeal lacks the jurisdiction to hear and determine the matter.
An aggrieved party can therefore appeal a decision either as of right or with leave. However, such an appeal must be made within the time limit prescribed in section 24 (2) (a) of the Court of Appeal Act. Where the appeal is brought after the expiration of the prescribed time, the leave/permission of court must first be obtained by a different application, I. e an application for extension of time within which to appeal. The application will be brought by a notice of motion supported by an affidavit.8
Extension of Time within which to bring an Appeal
Although an aggrieved party is at liberty to bring an application for extension of time in any judicial proceedings, the court has discretion to grant or refuse the application. The time limit prescribed by law to appeal a final decision is within 3 months of its delivery.9
Any application to appeal the decision brought after 3 months will be preceded by an application for the extension of time to appeal. As would be explained in the course of this article, the trinity prayer is a necessary requirement when bringing an application for extension of time. However, it does not apply to both rights of appeal.
It is worth noting that where the application for extension of time fails, other reliefs or prayers sought in the application will not be considered.10
What are the Trinity Prayers?
Trinity prayers also known as the tripod prayers or three legged prayers simply means three prayers contained in one application. The trinity prayers are:
Extension of time to appeal
Leave to appeal
Extension of time to seek leave to appeal
An application for extension of time where appeal is with leave must contain these three prayers otherwise it will be struck out for being incompetent.11
Extension of Time where Appeal lies as of Right
Where the time for filing an appeal which lies as of right has expired, the applicant has to file an application for extension of time. This application has to be supported by an affidavit stating substantial reasons why the appeal could not be filed within time.
In an application for appeal as of right, the aggrieved party does not need to seek leave. This means that the application will only pray for extension of time to appeal. Where the court grants the application for extension of time, the applicant would subsequently annex a copy of the court order to the notice of appeal.12
Extension of Time where Appeal is with Leave
Where the time for filing an appeal with leave has expired, the applicant has to bring an application for extension of time with the trinity payers. Where any of the trinity prayers is not prayed, the application will be struck out for being incompetent.13
The right of an appeal is exercised either as of right or with leave and must be brought within the prescribed time. Any appeal to be brought after the time has expired must be preceded by an application for extension of time.
The major difference between bringing an application for extension of time where the appeal lies as of right and where the appeal is with leave is that the former only needs to pray for extension of time in his appeal, without praying for leave to appeal and extension of time to seek leave to appeal. This is because seeking leave to appeal is contrary to the right of an applicant to appeal as of right. While the latter has to pray all three trinity prayers in its application, otherwise it will be struck out for being incompetent.
11999 Constitution of the Federal Republic of Nigeria
2Section 235 of the 1999 Constitution of the Federal Republic of Nigeria
3Sections 232 (2) (a) - (e), 241 (2) (c) of the 1999 Constitution of the Federal Republic of Nigeria
4Section 318 of the 1999 Constitution of the Federal Republic of Nigeria
5Order 7 Rule 11 of the COA Rules 2007
6Arum v Nwobodo (2004) 9 NWLR (part 878) 411 at 438 - 439
7Section 242 (1)
8Order 7 Rule 1 Court of Appeal Rules
9Section 25 (2) (a) of the Court of Appeal Act.
10Williams V Hope Rising Voluntary Funds Society Ltd (1982) 1-2 SC 145
11Registered Trustees of Christ Apostolic Church v Uffiem (1998) 10 nwlr (part 569) at 312
12Order 7 Rule 10 (2) of the Court of Appeal Rules
13Owena Bank Nig Plc v NSE Ltd & Anor (1979) 8 NWLR (part 515) 13
Preye Ezonfade , LLB