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COURT SHOULD NOT DETERMINE ISSUES MEANT FOR THE SUBSTANTIVE CASE AT THE PRELIMINARY STAGE

Dictum

It is the settled position of the law that a court should not comment on or decide at preliminary stage matters or issues which are supposed to be decided in the substantive case. See: NWANKWO & ORS v YAR’ADUA & ORS (2010) LPELR-2109(SC), at page 71, paras. B-F, per Commassie, JSC; and OCHOLI ENOJO JAMES, SAN v INEC & ORS (2015) LPELR-24494(SC) at page 92, para. G, per Okoro, JSC.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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PROPER APPROACH TO ISSUES OF FACT

In Adeyeye v. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432 at p.451, I referred to what I thought was the proper approach to the issues of fact and findings of fact by trial Courts viz: “The proper approach for any trial court is first set out the claim or claims; then the pleadings, then the Issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial Judge will then record his logical and consequential findings of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of fact.”

— Oputa JSC. Onwuka & Ors. V. Ediala & Anor. (SC.18/1987, 20 January 1989)

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ISSUES OF DETERMINATION ARISE FROM APPEAL GROUNDS

It is settled law that issues for determination must be distilled from grounds of appeal which ground(s) must attack the ratio decidendi of the judgment not anything said by the way, or obiter dicta or be formulated in vacuo , as issue 5 in the instant case. – Onnoghen JSC. Chami v. UBA (2010)

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INTERMEDIATE COURT SHOULD PRONOUNCE ON ALL ISSUES

This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s reasoning in the event that it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc.

— K.M.O. Kekere-Ekun, JSC. MTN v. Corporate (2019) – SC.674/2014

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ESSENCE OF FORMULATION OF ISSUES – APPEAL SHOULD BE ARGUED ON ISSUES

Before considering the arguments of counsel in this appeal, I consider it a matter of cardinal importance to remind counsel of the often made errors in their argument of returning to the grounds of appeal filed after formulating issues for determination based on the grounds of appeal. All arguments in the appeal after formulation of issues should be based on the issues for determination as formulated. See Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137. Stricto sensu, no reference thereafter ought to be made to the grounds of appeal filed. The essence of the formulation of issues is to narrow the relevant issues in dispute within those so formulated Attorney-General Bendel State v Aidegun (1989) 4 NWLR (Part 118) 646. Hence as the issues arise from the grounds and may and usually encompass a number of grounds of appeal, it is sufficient to argue the appeal on the issues for determination formulated. See Ogbunyinya v Okudo (No.2)(1990) 4 NWLR (Part 146) 551 SC. The approach adopted by counsel in this appeal by arguing the appeal on the grounds rather than on the issues formulated, suggests that sufficient attention was not paid to the formulation of the issues for determination. Vide Egbe v Alhaji (1990) 1 NWLR (Part 128) 546. –

Karibe-Whyte JSC. Agbai v. Okogbue (1991) – SC 104/1989

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FEWER ISSUES ARE ENCOURAGED TO BE RAISED BY PARTIES

Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues -nine, for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue one ground can never properly raise more than one issue. It must, however, be borne in mind that an “issue” in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court. This is why, apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well-framed, researched and presented rather than on numerous trifling slips.

— Nnaemeka-Agu, JSC. Ugo v Obiekwe (1989) – SC.207/1985

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APPELLATE COURT WILL NOT ALLOW FRESH ISSUE ON APPEAL TO BE TAKEN

In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) LPELR – 2377 (SC), this Court per Chukwuma-Eneh JSC (of blessed memory) restated the principle inter-alia as follows:- “It is trite that an appellate Court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the Courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial Court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been sought and obtained.”

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