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AN APPEAL IS A CONTINUATION OF THE CASE AT THE TRIAL COURT

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An appeal is generally taken to be a continuation of the original case started at the first instance court. It is not a new cause of action, See: Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 171 at p.211; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250. It is always confined to the consideration of the record which was forwarded from the court below with no new testimony or issues raised in the appellate court. Focussing on the record of appeal placed before it, the appeal court “rehears” the case and may make its own evaluation of the evidence contained in the record of appeal. From that record, the appeal court may review the findings and inferences of fact and, where it considers it proper, may substitutes its own view of the facts for that of the trial court. It may also review the whole proceedings including all the interlocutory decisions given in the trial. It may reject conclusions of the trial court from facts which do not flow from the evidence or may be regarded as perverse. See: Okotie-Eboh and Ors v. Okotie-Eboh and Ors 1986) 1 SC 479 at p.507; Onowan and Anor v. Iserhein (1976) NWLR 263. What the court below did is akin to this principle of practice and procedure.

— I.T. Muhammad, JSC. EFET v INEC (SC.207/2009, 28 January 2011)

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CONDITIONS TO BE SATISFIED BEFORE FRESH EVIDENCE CAN BE RECEIVED ON APPEAL

Finally My Lords, on this application, I wish to state that fresh evidence is not received as a matter of course. There are conditions which must co-exist before the court can grant this type of application as can be garnered from decided authorities of this court which include but not limited to Onwubuariri & ors v Igboasoyi & ors (2001) 3 NWLR (pt. 1234) and Adegbite v Amosun (2016) 5 NWLR (pt. 1536) 405 at 422, cases cited by the learned senior counsel for the 2nd Respondent. Simply put, the conditions are that: (1) the fresh evidence could not have been obtained with reasonable diligence at trial, (2) such evidence, if admitted would have important effect on the subject of the appeal, (3) such evidence, ex-facie, is 43 apparently capable of being believed, (4) such evidence would have influenced the judgment of the lower court in favour of the appellants, had it been available and (5) and if such evidence is admitted, further evidences from the opposing party will not be needed.

— I. Okoro JSC. Atiku, PDP v. INEC, Tinubu, APC (SC/CV/935/2023, 26th day of October, 2023)

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INTERMEDIATE COURT WILL PROCEED TO LOOK AT THE CASE MERIT

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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AN APPEAL ALLOWED SHOULD NOT BE DISMISSED

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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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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WHERE NO APPEAL, DECISION IS DEEMED ACCEPTED BY THE PARTY

The settled position of the law applicable in the given circumstance is as straight forward as it comes and that is to the effect that a decision of Court against which no Appeal has been filed is deemed accepted by the party against whom the decision was entered and therefore binding. In the same token, the law is trite that a decision or conclusion or finding not appealed against is deemed correct and binding between the parties. See the cases of ODIASE v. AGHO and ORS (1972) 1 ALL NLR (Pt. 1) 170 AT 176; MELIFONWU v. EGBUJI (1982) 9 SC. 145 AT 165; BIARIKO v. EDEH-OGWUILE (2001) 12 NWLR (Pt. 726) 235; IYOHO v. EFFIONG (2007) 11 NWLR (Pt. 1044) 31; and S.P.D.C. v. X.M. FED. LTD (2006) 16 NWLR (Pt. 1004) 189 where the Supreme Court per ONNOGHEN, JSC had this to say on the subject: “It is settled law that a decision of a Court not Appealed against remains valid, subsisting, and binding between the parties and is presumed acceptable to the parties.”

— F.O. Oho, JCA. Nasiru v State (2016) – CA/S/78C/2015

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WHERE ERROR OF LAW BY TRIAL JUDGE, APPEAL COURT WILL REVERSE THE DECISION

A decision of a lower court on any point will be reversed by the appellate court where error of law committed by the lower court is fatal because it has occasioned a substantial miscarriage of justice.

– Adio, JSC. UBN v. Ozigi (1994)

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