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AN APPEAL IS AGAINST A RATIO, NOT OBITER

Dictum

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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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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JUDGEMENT NOT APPEALED IS BINDING

The learned counsel for the plaintiffs/respondents objected to the brief filed by the 1st defendant/respondent on the ground that she did not file an appeal against the judgment of the lower court and she cannot be heard in her brief to support the appellant.
In reply the learned counsel for the 1st defendant/respondent submitted that he was at liberty to argue the appeal as long as he does not go outside the grounds of appeal filed by the appellant.
It should be noted that the 1st defendant/respondent did not defend the suit in the lower court. She also did not appeal against the judgment of the lower court. It will therefore be outrageous to allow her to argue her brief in favour of the appellant before this court. The whole case revolved on her in the lower court. She chose to do nothing before that court and did not appeal against the judgment of the lower court. The implication is that she is satisfied with the judgment of the lower court and cannot be allowed to argue the contrary in this court. The brief filed on her behalf is hereby discountenanced and struck out.

– Ogebe JCA. Ohiaeri v. Yusuf (2003)

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ONLY FUNDAMENTAL HUMAN RIGHTS ISSUES WHICH ARE INCIDENTAL TO THE MAIN CLAIM CAN BE RAISED FOR THE FIRST TIME IN THE SUPREME COURT

✓ It is this clear that the jurisdiction to entertain any suit which seeks to enforce the observance of a fundamental right under chapter 4 of the Constitution, including the right of any person not to be subjected to torture, inhuman or degrading treatment guaranteed under section 31(1)(a), of the 1979 Constitution, ties only with the High Court of a State or a Federal High Court in the exercise of its original jurisdiction. The jurisdiction of the Supreme Court is appellate and not original. See Attorney-General of Anambra State and others v. Attorney-General of the Federation and others (1993) 6 NWLR (Pt.302) 692. However, constitutional issues which pertain only to the breach of a fundamental right in the course of trial or hearing before the lower courts may be raised in an appeal to the Supreme Court. Such issues are those that relate mainly to breach of the right to fair hearing and the right to personal liberty under sections 32 and 33 of the Constitution. Other rights such as right to life and those to private and family life, peaceful assembly and association and freedom of the press can only be enforced through a substantive action in the appropriate High Court and cannot be raised in an appellate court, including the Supreme Court, as being incidental to the proceedings in the lower courts. The appellate courts, inclusive of the Supreme Court, have no original jurisdiction to entertain, determine or pronounce on questions relating to an alleged breach of fundamental rights, especially where the issue involved or the redress invoked is not directly relevant or intrinsic to the determination, on the merit, of the appeal before them. — Iguh JSC. Onuoha v State (1998) – SC. 24/1996

✓ The death row phenomenon was only raised obliquely and clearly extrinsically by the appellant in this appeal. The issue raised is whether the appellant’s confinement under sentence of death for an alleged unnecessarily prolonged length of time from the date of his conviction amounts to cruel, inhuman and degrading treatment contrary to section 31(1)(a) of the Constitution thereby warranting the quashing of his death sentence and substituting the same with life imprisonment. This issue, in my view, is not properly before this court. The jurisdiction of this court to entertain and determine such constitutional question will only arise on appeal after both the High Court and the Court of Appeal have considered and adjudicated on the issue. This is exactly the procedure adopted in the foreign cases that were cited before us. — Iguh JSC. Onuoha v State (1998) – SC. 24/1996

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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)

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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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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

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