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INTERMEDIATE COURT WILL PROCEED TO LOOK AT THE CASE MERIT

Dictum

While I am tempted to put an end to this petition at this stage, but realising that this Court is not the final Court on the matter, I am constrained to look at the merit of the petition. — H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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RESPONDENT CANNOT COUCH ISSUE OUTSIDE APPELLANT’S GROUNDS OF APPEAL

Be that as it may, it would therefore not be necessary to go into the second issue formulated for determination in this notice of objection. But I will like to comment and emphasize that a Respondent is not permitted to couch any issue outside the perimeters of the Appellant’s grounds of appeal unless such a Respondent has filed a Respondent’s notice or Cross-Appeal. And where an issue for determination is not related to the grounds of appeal it would be incompetent and it ought to be struck out. See:- Falola v. UBN (2005) 7 NWLR Part 924 Page 405 at 424.

— J.O. Bada, JCA. Conoil v Vitol (2011) – CA/A/213/2010

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APPEAL: WHERE LEAVE IS REQUIRED BUT NOT OBTAINED, APPEAL IS INCOMPETENT

Consequently, in law an appeal which requires the prior leave of Court but was filed without the requisite leave of Court is wholly and completely incompetent. It would have no redeeming feature to be considered on the merit no matter how tempting the zeal to do substantial justice on the merit to the parties may be. See Sections 240; 243 (1), (2) and (4); 254C (5) and (6) 3(2) of the Constitution of Nigeria 1999 (as amended). See also Skye Bank v. Iwu (supra).

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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COURT CANNOT REVIVE AN INCOMPETENT APPEAL

The inherent jurisdiction to regulate proceedings in this court does not arise until there is a lis extant upon which the inherent jurisdiction operates. There is no provision either in the Constitution, the Court of Appeal Act or Court of Appeal Rules vesting this court with jurisdiction to validate by rectifying defects in appeals which are otherwise incompetent. There is no power in this court to entertain any application for or grant any relief in respect of a putative or incompetent appeal.

— Salami, JCA. Ifeajuna v. Ifeajuna (1998) – CA/E/181/97

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PARTY CANNOT RAISE NEW ARGUMENT FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE

A counsel cannot make out a case not pleaded by a litigant in his address before the court. Where the appellant did not predicate her case on customary law before the lower court, she cannot raise same here afresh before this court. The simple answer is that an appeal is not a new action but a continuation of the matter which is the subject – mater of the appeal. Hence an appellant cannot be allowed to set up a case different to that which was made out at the court below. This is because the appellate court would not have had the benefit of the opinion of the lower court on the issue. Eze V. A- G Rivers State (2001) 18 NWLR pt, 746, pg. 524 Ejiofodomi V. Okonkwo (1982) II SC 74 Dwege V. Iyamahan (1983) 8 SC 76 A-G Oyo State V. Fairlakes Hotels Limited (1988) 5 NWLR pt. 92, pg. 1 FRN V. Zebra Energy Limited (2002) 3 NWLR pt. 754, pg. 471.

— O.O. Adekeye, JSC. Agboola v UBA (2011) – SC.86/2003

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APPEAL STANDS OR FALL ON POINTS APPEALED AGAINST

MICHAEL V. THE STATE (2008) LPELR – 1874 (SC); where my lord MUSDAPHER (JSC, CJN) (of blessed memory) said as follows: “It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decision not appealed remain unchallenged.”

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WHEN FINDINGS OF FACT OF TRIAL COURT ARE NOT APPEALED, THERE NO NEED FOR APPELLATE COURT TO REVIEW THEM

There was, with the greatest respect, no earthly reason for the Court of Appeal to review the pleadings and the evidence in view of the findings of fact of the trial Court at p.160 that EXS.D and E were not loan receipts but receipts for the sale of land and the conclusion of law at p.161 “that all the plaintiff got by virtue of the receipts Exhibits D and E was an equitable interest”. There was no cross-appeal by the 2nd Defendant challenging the above findings. What the Court below should have then concentrated on would have been the legal effect of the above findings on the relationship of the Plaintiff and the 2nd Defendant.

— Oputa, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

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