A notice of appeal filed out of time is incompetent and cannot be cured by amendment.


Petgas Resources Ltd. v. Mbanefo [2018] 1 NWLR (Pt. 1601) 442 at 470, paras. F-G, per Kekere-Ekun JSC:

“In the absence of an application for enlargement of time, a notice of appeal filed out of time has no foundation. It is liable to collapse and nothing, such as an amendment of the incompetent process, can stand on it. A fundamentally defective notice of appeal cannot be cured by amendment.”


The case involves an appeal filed by the Appellant against a decision of the Court of Appeal. The appeal was filed outside the time allowed by the Rules of Court and the Appellant failed to file an application to regularise same. Subsequently, the Appellant filed an application seeking the leave of Court to amend the Notice of Appeal and the application was granted.

The Respondent later filed a preliminary objection challenging the competence of the appeal on the ground that the Notice of Appeal earlier filed was incompetent, having been filed out of time. The Supreme Court upheld the Respondent’s contention and struck out the appeal. The apex Court held that since the Notice of Appeal filed was out of time, it was incompetent and defective and all subsequent processes filed in the appeal was void.

Time for doing any act in judicial proceedings, including the filing of appeal, are usually provided in the relevant statutes and Rules of Court for the purpose of saving time and discouraging laxity in prosecuting cases. In addition, penalty (in terms of monetary payment) for default in due compliance is also usually provided.

In line with this, it is trite that any court process filed out of the time permitted is irregular or incompetent but can be regularised upon the filing of an application to that effect and payment of the default fees subject to the discretion of the court.

Nevertheless, we have seen that counsel sometimes fail to strictly comply with this procedure of filing within time or taking steps to regularise irregular processes. In the case of appeal filing, this failure to file within time is also not entirely due to the fault of counsel at all times as the court registries often contribute to the delay either by failing to make available certified copies of decisions or by not timely performing other administrative tasks in furtherance of the appeal. The inefficiency of the court registries have even led lawyers to often engage in the habit of ‘tipping’ court officials to ‘facilitate’ and ‘mobilise’ them to work. In fact, it has become a solid tradition that if counsel fail to ‘do the needful’, nothing gets done by these officials. Whatever the case, parties bear the full weight of any delay.

It is submitted that proactive steps need to be taken to avoid situations such as the one in the instant case where the appeal was consequently struck out. The innocent Appellant may never understand why the case was not determined on the merit. It is recommended that court registries should be directed to ensure that no court process should be filed out of time without the necessary penalty paid at the time of filing. That way, no incompetent process will ever find its way into the court file.

If this is done, a party may then apply through his counsel in writing (or even orally) that such irregular process be regularised by an order of Court, penalty for default having been paid. This does not deny the Court the discretion to discountenance any application for extension of time where the delay is found to be so much as to lead to injustice. Notably, it is in line with ensuring that judicial time is saved that applications for extension of time may even be treated in chambers and the other side is obliged to file notice of intention not to oppose, so as to dispense with the need for any hearing.

To some extent, respectfully, it ridicules the system that the Supreme Court in the instant case made an earlier Order amending the Notice of Appeal in question only to later strike it out for being incompetent. The Court should take the issue of saving judicial time seriously and avoid any occasion where the Court would be making orders that are absolutely ineffectual.

The Supreme Court reiterates that a brief of argument must not be struck out for lack of beauty or elegance.


KLM Royal Dutch Airlines v. Aloma [2018] 1 NWLR (Pt. 1601) 473 at 509-510, paras. H-A, per Peter-Odili JSC:

“Going along the pathway charted by these earlier decisions of our courts, it can easily be seen in line with what is before this Court that the learned Justices of the Court of Appeal ought not to have denied the Appellant a hearing for the second time on the technical perception of the lack of beauty or elegance of its brief. Indeed, a miscarriage of justice arose on account of what the Court below did.”


In the case, the Court of Appeal had struck out the Appellant’s Brief of Argument for being inelegantly drafted and in defiance to the Court of Appeal Rules. As a result, the Court of Appeal dismissed the appeal, concluding that the Brief of Argument having been struck out, there was nothing left to determine in the appeal.

The Appellant’s appeal to the Supreme Court against the decision of the Court of Appeal was successful. The apex Court frowned at the position taken by the Court of Appeal especially taking into consideration that the law is settled that an appeal must be heard and determined notwithstanding the fact that the Brief of Argument filed lacks elegance. It is baffling how the Court of Appeal shut its eyes to the plethora of authorities on the point.

One of the reasons advanced by the Court of Appeal for dismissing the appeal was that the defect in the Appellant’s Brief of Argument went beyond mere technicality to the root of fair hearing of the appeal because it could not consider the appeal without interfering with the arrangement of the issues in favour of the Appellant. This, according to the Court of Appeal, would also amount to descending into the arena and performing “surgical operation” on the Brief.

Unfortunately, the long line of authorities (which held that an inelegantly drafted Brief must not be altogether discountenanced) tend to suggest that even if it would amount to performing the duties of a surgeon, the Court must consider the arguments in the Brief in the interest of justice. In keeping with this, the Supreme Court stressed that a brief of argument is not an end in itself but one of the tools provided for by the Rules of Court to assist the Court in deciding a given case justly.

The other reason furnished by the Court of Appeal was that the Appellant formulated two issues but argued sub-issues, thereby abandoning the main issues. The Supreme Court considered this reason but found that the two issues were indeed argued by the Appellant and that same derives from the grounds of appeal. The law as recently upheld by the Court in Chiadi v. Aggo [2018] 2 NWLR (Pt. 1603) 175 at 231, paras. C-D, is that “The inelegance of an issue with titles or sub-issues…should not distract from the substance of what should be the concern of the appellate court in discharging justice. The Court of Appeal failed to avert its mind to this position.

We commend the Supreme Court for coming to the rescue by setting aside the dismissal order and directing that the appeal be heard by another panel of the Court of Appeal.

Counsel are hereby encouraged to take the issue of brief-writing seriously and where possible, take further courses or training on brief-writing.

A single notice of appeal can be used to challenge multiple decisions of a court in a case.


Uchiv v. Sabo [2016] 16 NWLR (Pt. 1538) 264 at 295 paras. B-G, per Georgewill, JCA:

“It is thus the law that a party aggrieved with both decisions of a court at an interlocutory stage and the final determination of a case can conveniently and competently vide a single notice of appeal challenge both decisions in an appeal. It is, in my view, within his right so to do.”


The kind of scenario that plays out, thereby calling for a judicial clarification on the procedure on appeal is such that during the pendency of a case before judgment is delivered, the court often deliver a number of rulings on applications/arguments (both oral and written). These rulings can form the basis of an appeal by any aggrieved party.

As observed by the Court of Appeal in the instant case, an aggrieved party may very well await the final outcome of a case to determine whether to appeal against both the interlocutory and final decisions, should the final decision be unfavourable.

So the procedural question is whether a single notice of appeal suffices for the purpose of the appeal or whether separate notices of appeal should be filed challenging the separate decisions. Note that the separate decisions may be two separate rulings delivered on the same date or separate dates in the same case; or an interlocutory decision and then a final decision.

Continue reading A single notice of appeal can be used to challenge multiple decisions of a court in a case.