An appeal is not a second trial. It is a challenge to the decision of the lower court on specific, identified grounds. Nigerian appellate courts will not consider any argument — however meritorious — that is not covered by a filed ground of appeal. Getting the grounds right is therefore the most important step in any appellate strategy.
What Are Grounds of Appeal?
Grounds of appeal are the specific complaints the appellant makes against the decision of the lower court. They define the scope of the appeal. An appellate court has no jurisdiction to consider issues that fall outside the filed grounds.
This was stated clearly by the Supreme Court in Adeleke v INEC [2007] 10 NWLR (Pt. 1043) 608: "An appeal is confined to and circumscribed by the grounds of appeal filed by the appellant. No court of appeal can go outside the bounds of the grounds of appeal."
Types of Grounds of Appeal
1. Grounds of Law
These challenge the lower court's application or interpretation of a legal principle. Examples:
- The court applied the wrong legal test
- The court misinterpreted a statutory provision
- The court admitted evidence that was inadmissible
- The court applied an incorrect burden of proof
Grounds of law are the most powerful category because a clear error of law will almost always lead to the appeal being allowed.
2. Grounds of Mixed Law and Fact
These challenge the court's application of a legal principle to the facts of the case. Examples:
- The court found that a contract was formed but applied the wrong test for consideration
- The court held that negligence was established but applied the wrong standard of care
3. Grounds of Fact
These challenge the lower court's findings of fact. They are the hardest to succeed on because appellate courts are reluctant to disturb factual findings made by a trial court that saw and heard the witnesses.
The standard test: would a reasonable tribunal, properly directing itself, have reached the same conclusion on the evidence? If yes, the factual finding stands even if the appellate court might have decided differently.
4. The Omnibus Ground
The omnibus ground — "the decision is against the weight of evidence" — is a general ground of fact challenging the overall evaluation of evidence. It is always included as a safety net but should not be relied upon as the primary ground of appeal.
The Format of a Ground of Appeal
Under Order 6 Rule 2 of the Court of Appeal Rules 2021, each ground of appeal must:
- Set out the specific error complained of
- Be followed by particulars identifying the specific passage in the judgement where the error occurred
Correct format:
Ground 1: The learned trial Judge erred in law in holding that the Claimant failed to establish that a binding contract existed between the parties when there was unchallenged evidence of offer, acceptance, and consideration on the record.
Particulars: (i) The trial Judge held at page 47 lines 12-15 of the record: "I find that no binding agreement was reached between the parties." (ii) This finding was made despite the documentary evidence at Exhibit C, being a signed letter of offer, and the Claimant's uncontroverted evidence of payment of ₦5,000,000 as consideration. (iii) The trial Judge failed to apply the principles in Orient Bank v Bilante International [1997] 8 NWLR (Pt. 516) 37 which establishes the ingredients of a binding contract under Nigerian law.
Common Drafting Errors
Vague and omnibus grounds that are not the omnibus ground
A ground that simply states "the court erred in law" without identifying the specific error is bad in law and will be struck out. Every ground must point to a specific error.
Bad: "The trial court erred in law in its judgment."
Good: "The trial court erred in law in failing to consider the defendant's alibi defence notwithstanding that it was raised in the defendant's statement to the police at the time of arrest."
Grounds that argue evidence rather than legal error
Grounds of appeal are not a place to re-argue the evidence. The ground should identify the error; the brief of argument is where you make the submission.
Failure to file within time
Appeals to the Court of Appeal from the Federal High Court or State High Court must be filed within 90 days of the decision. Appeals to the Supreme Court must be filed within 90 days. Extensions can be applied for, but delay creates complications.
Leave to Appeal
Some appeals require leave — permission from the court — before they can be filed:
- Appeals against interlocutory decisions (rulings made during the course of the trial) require leave of the lower court or the appellate court
- Appeals on grounds of fact or mixed law and fact in certain categories of cases require leave
- Appeals to the Supreme Court on questions that are not of law alone require leave
Always check whether your intended appeal requires leave. Filing an appeal that requires leave without obtaining it is a fundamental defect.
The Notice of Appeal vs. The Brief of Argument
Many practitioners confuse the notice of appeal with the brief of argument. They serve different functions:
Notice of Appeal: Filed to commence the appeal. Contains the grounds of appeal. Must be filed within the limitation period.
Brief of Argument: Filed later after the record of proceedings is compiled. Distils the grounds of appeal into issues for determination and contains the full legal argument.
You can — and often should — formulate fewer issues for determination than you have grounds. Multiple grounds can support a single issue.
Practical Tips
Read the judgement carefully before drafting grounds. Every ground must be anchored to something the judge actually said or failed to say. Read the judgement with a pen and mark every passage that you contend was wrong.
Be specific. The more precisely you identify the error — including the page and lines of the record — the harder it is for the respondent to argue the ground is vague.
Prioritise your grounds. File all grounds you have — you cannot add grounds later without leave — but identify your strongest grounds and build your brief around them.
Always include an omnibus ground as the last ground where you are challenging the overall evaluation of evidence, even if you have specific factual grounds.
Seek leave when in doubt. If you are unsure whether your intended appeal requires leave, apply for leave. An appeal filed without required leave is a nullity.
A well-drafted notice of appeal with precise, particularised grounds of appeal is the foundation of a successful appeal in Nigerian courts. The grounds define the playing field — get them right before you do anything else.