THERE IS NO RIGHT OF APPEAL ON AWARD OF COSTS

WHEN AN APPEAL IS ENTERED, THE APPEAL COURT IS SEISED OF THE WHOLE PROCEEDING

As observed earlier, there is a finding by the court below that there was a pending appeal before it as Appeal No. CA/L/133/93 which was entered on May 2, 1995. Now, in accordance with the provisions of the Court of Appeal Rules, 1981 (as amended) an appeal is said to be entered in the court when the record of proceedings in the trial court has been received in the Registry of the court. See: Order 1 Rule 22, Court of Appeal Rules (1981) (as amended); Order 4 Rule 10, Court of Appeal Rules, 2007 (as amended). Once it is so entered, an appeal is then said to be pending. The Rule governing the control of proceedings during pendency of an appeal is that after an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the court below (i.e. the trial), but any application may be filed in the trial court for transmission to the court below. See Order 4, Rule 11. Thus, in pursuance of the above provisions of the Court of Appeal Rules, the trial court will have no competence or jurisdiction to decide on any application whether on notice or ex-parte in relation to an appeal which the trial court has become FUNCTUS OFFICIO. If the trial court takes any step thereon, except for the purposes of transmitting the processes so filed to the Court of Appeal, that step taken will be declared a nullity.

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

APPEAL IS THE CONTINUATION OF THE ORIGINAL ACTION

It is also trite that an appeal is a continuation of the original action. The parties are therefore confined to their case as pleaded and presented at the Court of first instance. See: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1 @ 225; Adegoke Motors Vs Adesanya (1989) 3 NWLR (Pt. 109) 250 @ 266; Alhassan Vs Ishaku (2016) LPELR – 40083 (SC) @ 680.

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

APPELLATE COURT HAS A DUTY TO EXAMINE THE TOTALITY OF EVIDENCE

Nevertheless, the court, especially the appellate court, has a duty to examine the totality of the evidence tendered before the trial court in order to be satisfied that what the parties had pleaded is in consonance with the evidence led at the trial.

— Wali JSC. Chime v Chime (2001) – SC 179/1991

APPEAL FROM TRIAL COURT TO SUPREME COURT

It is elementary law that this court has no jurisdiction to consider the issue which was only decided by the trial court. – Musdapher JSC. Gbadamosi v. Dairo (2007)

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