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AN APPEAL ALLOWED SHOULD NOT BE DISMISSED

Dictum

The lower court cannot hold simultaneously that the appeal is allowed in part yet proceeded to dismiss the appellant’s claims in its entirety particularly when the part of the appeal allowed has to do with the award of the sum of N70,000.00 share of profit to the appellant. To hold as the lower court did was an obvious error which ought not to be allowed to stand. – Onnoghen JSC. Alade v. Alic (2010)

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INELEGANCE & UNTIDINESS CANNOT RENDER AN APPEAL INCOMPETENT

It is to be seen that it can be said that filing more than a notice of appeal and using more than one could be inelegant, untidy or even confusing, but the law and its practice have had it settled that the inelegance or untidiness are not enough reason for rendering those notices of appeal incompetent or invalid as to do that would be taking technicality too far and not covered by law.

– Peter-Odili, JSC. Tukur v. Uba (2012) – SC.390/2011

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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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AN APPEAL IS A CONTINUATION OF THE ORIGINAL SUIT – NEW ISSUES SHOULD NOT BE RAISED

Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new Issues without the express leave of Court or to proffer new evidence without such leave. An appeal, being a judicial examination by a higher Court of the decision of an inferior Court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior Court for decision.

– Oputa, JSC. Adegoke v. Adesanya (1989)

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WHAT DOES “APPEAL” MEANS?

The word “appeal” is simply to make a formal request to somebody in authority “for a decision to be changed” Oxford Learners Dictionary. In an Appeal, the lower Court’s decision is submitted to a higher Court “for review and possible reversal” see Black’s Law Dictionary, 9th Ed.

— A.A. Augie, JSC. Usman v The State (2019) – SC.228/2016

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AN APPEAL IS AGAINST A RATIO, NOT OBITER

It also has to be observed that an appeal is usually against a ratio not normally against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is still against the ratio.

— Oputa, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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A RESPONDENT IS TO DEFEND THE JUDGEMENT ON APPEAL

A Respondent’s role in an Appeal is to defend the judgment on Appeal, and not attack it. On the other hand, it is duty of the Appellant to attack the judgment. After all he filed the Appeal because he believes it is wrong. If a Respondent is not satisfied with the judgment on Appeal he should file a Cross Appeal or Respondents Notice. See New Nig Bank PLC v Egun (2001) 7 NWLR (Pt. 711) p.1 and Ibe v Onuorah (1999) 14 NWLR (Pt. 638) p. 340. It must be noted, though that a Cross Appeal and a Respondents Notice cannot co-exist.

— O. Rhodes-Vivour, JSC. Bakari v. Ogundipe (2020) – SC.514/2015

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