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

Dictum

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 ISSUE ARISES FROM A GROUND OF APPEAL

In law, a ground of appeal from which no issue for determination was distilled is deemed abandoned and liable to be struck out without much ado. Consequently, Ground 7 in the Notice of Appeal are hereby stuck out.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

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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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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 IS A CONTINUATION OF THE CASE AT THE TRIAL COURT

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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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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