It is good law that an appellate court must examine and decide on all relevant issues in the appeal. That is what the Court of Appeal did and I cannot fault the court. This court cannot gag the Court of Appeal in the re-evaluation of evidence, as long as the court does that within the precinct or purview of the Record, and that is exactly what the court did; and so, a full stop.
— Niki Tobi JSC. Tijani Dada v Jacob Bankole (2008) – S.C. 40/2003
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Before considering the arguments of counsel in this appeal, I consider it a matter of cardinal importance to remind counsel of the often made errors in their argument of returning to the grounds of appeal filed after formulating issues for determination based on the grounds of appeal. All arguments in the appeal after formulation of issues should be based on the issues for determination as formulated. See Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137. Stricto sensu, no reference thereafter ought to be made to the grounds of appeal filed. The essence of the formulation of issues is to narrow the relevant issues in dispute within those so formulated Attorney-General Bendel State v Aidegun (1989) 4 NWLR (Part 118) 646. Hence as the issues arise from the grounds and may and usually encompass a number of grounds of appeal, it is sufficient to argue the appeal on the issues for determination formulated. See Ogbunyinya v Okudo (No.2)(1990) 4 NWLR (Part 146) 551 SC. The approach adopted by counsel in this appeal by arguing the appeal on the grounds rather than on the issues formulated, suggests that sufficient attention was not paid to the formulation of the issues for determination. Vide Egbe v Alhaji (1990) 1 NWLR (Part 128) 546. –
Karibe-Whyte JSC. Agbai v. Okogbue (1991) – SC 104/1989
It is settled law that issues for determination must be distilled from grounds of appeal which ground(s) must attack the ratio decidendi of the judgment not anything said by the way, or obiter dicta or be formulated in vacuo , as issue 5 in the instant case. – Onnoghen JSC. Chami v. UBA (2010)
In Saliba v Yassin (2002) 4 NWLR (pt. 756) 1, this court stated clearly that all appeals are decided upon the issues formulated for determination. What this means is that any matter not covered by any issue for determination is of no moment.
— I. Okoro JSC. Atiku, PDP v. INEC, Tinubu, APC (SC/CV/935/2023, 26th day of October, 2023)
It suffices to state, firstly, that an appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out. – Iguh, JSC. Oshatoba v. Olujitan (2000)
But there is nothing in the case of Lawrence Okafor & Ors. v. Felix Nnaife & ors. (1972) 3 E.C.S.L.R. 261, which the learned trial Judge relied upon to support his decision to suggest that the court could take up the point and decide it without hearing the parties. Indeed in that case when the Supreme Court felt that point needed to be taken, their Lordships invited counsel on both sides to address the court on the point, before they decided it. It is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alterant partem. That maxim implies not only that all the parties to be affected by a decision are entitled to be heard in the case on hand before the decision is given but also that if, in the course of hearing, any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down. Quite apart from this, a Judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point, no matter how clear it may appear, and, without hearing any of the parties to be affected by the decision, decides it. That cannot be even-handed justice. A court ought never raise an issue for either of the parties and, without hearing both parties proceed to base its judgment on it. See Inua v. Nta (1961) 1 ALL N.L.R. 576; Ejowhomu v. Edok-Eter Ltd. (1986) 5 N. W.L.R. (Pt.39) 1. So, the Court of Appeal was right on that ground.
— Nnaemeka-Agu, JSC. Ugo v Obiekwe (1989) – SC.207/1985
In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) LPELR – 2377 (SC), this Court per Chukwuma-Eneh JSC (of blessed memory) restated the principle inter-alia as follows:- “It is trite that an appellate Court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the Courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial Court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been sought and obtained.”
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