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

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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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WHERE NO APPEAL AGAINST SPECIFIC FINDINGS, THOSE FINDINGS REMAIN UNASSAILABLE

The excerpts above of the trial Court findings and conclusions were not appealed against at the lower Court which throws up the settled law that where there is no appeal against specific findings of fact made at the trial Court, those findings remain for all time unassailable and deemed accepted as representing the true state of affairs. It therefore becomes futile trying to smuggle those same issues at another level of appeal since they have in effect been conceded by the party against whom they were decided and remains valid and binding on all parties forever. I rely on Anyanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar’Adua (2010) All FWLR (Pt.534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt.739) 1080 at 1094.

— M.U. Peter-Odili, JSC. MTN v. Corporate (2019) – SC.674/2014

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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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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

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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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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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REQUIREMENTS TO SUCCEED IN AN APPEAL

In order to succeed in this appeal, the appellant must show that the decision of the lower Court affirming the judgment of the trial Court is perverse, either because the evaluation of evidence and findings of fact were not based on a proper and dispassionate appraisal of the evidence on record, or the trial Court did not make proper use of the opportunity of seeing and hearing the witnesses testify, or that the findings were reached as a result of a wrong application of substantive law or procedure, or that there was a miscarriage of justice manifest on the face of the record. See: Igbi Vs The State (2000) 3 NWLR (Pt. 648) 169; Shehu Vs The State (2010) 8 NWLR (Pt. 1195) 112; Itu Vs The State (2016) 5 NWLR (Pt. 1506) 443.

— Kekere-Ekun, JSC. Ogunleye Tobi v The State (2019) – SC.714/2017

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