The Legal Effect of Dismissing an Application for Leave to Appeal: Is it a dismissal on Merit or that of Striking out? By Qosim A. Muhibudeen


In this week legal publication, we presented the decision of the Court on: The Legal Effect of Dismissing an Application for Leave to Appeal: Is it a dismissal on Merit or that of Striking out?

SHORT EXPLANATION:
The well settled position of the law, as well captured in the attached flyer, is to the effect that an application for leave to appeal where so required by law, is a condition precedent to the initiation of a valid appeal, whether of an appeal within time or an appeal out of time.

An appeal is within time where an appeal is brought within the statutorily prescribed period or time within which such an appeal should be filed against the decision of a lower Court. For instance, an appeal against the decision of a trial Court lying to the Court of Appeal, in a civil matter, is to be brought within three months. Where such appeal is brought before the expiration of the three months, it is an appeal within time. Otherwise, it is an appeal out of time.

The law is, before an appeal out of time could be validly initiated, leave must be sought from the upper Court in which such appeal lies. This, though, admit exception(s) which is not the area of focus of this instant nugget. The above does not, however, forecloses instance(s) where an appeal within time cannot be validly initiated except with the leave of the Court (whether of trial Court or not).

Now, as the Court lucidly held, where in the circumstance that an appellate Court dismisses an application seeking leave to appeal, the "dismissal" will only have the effect of striking out and not the legal effect of "dismissal". The further noted that: "The law is that where leave to appeal is required and it is not obtained, the appeal is incompetent, null and void". And where an application for leave is dismissed, the dismissal does not foreclose the right to refile same before the Court dismissing it initially.

For the full gist of the holding of the Court, kindly refer to:  U.B.N. Plc v. Petro Union Oil and Gas Co. Ltd. (2022) 7 NWLR (Pt. 1829) 199 (S.C).


Author: 

Qosim A. Muhibudeen, SABUK (Director Research and Litigation). He can be reached via: https://muhibqosim.com.ng

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