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COURT IS TO CONSIDER ALL ISSUES PLACED BEFORE IT

Dictum

There is no doubt, that, generally, the court below ought to have considered all issues placed before it for determination not being the final court on the matter. But a litigant can only be heard to complain if the issue not so considered is material and substantial in the particular circumstance. See Onifade V. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 159 and if the appellant had suffered any miscarriage of justice. See; State V. Ajie (2000) FWLR (Pt.15) 2831 at 2842.

— O. Ariwoola, JSC. African Intl. Bank Ltd. v Integrated Dimensional System (2012) – SC.278/2002

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COURT SHOULD NOT DETERMINE ISSUES MEANT FOR THE SUBSTANTIVE CASE AT THE PRELIMINARY STAGE

It is the settled position of the law that a court should not comment on or decide at preliminary stage matters or issues which are supposed to be decided in the substantive case. See: NWANKWO & ORS v YAR’ADUA & ORS (2010) LPELR-2109(SC), at page 71, paras. B-F, per Commassie, JSC; and OCHOLI ENOJO JAMES, SAN v INEC & ORS (2015) LPELR-24494(SC) at page 92, para. G, per Okoro, JSC.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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WHAT IS AN ISSUE FOR DETERMINATION

I may here repeat what I said in the case of Standard Consolidated Dredging & Construction Company Limited v. Katonecrest Nigeria Limited (1986) 5 N.W.L.R. (Pt.44) 791, at p.799 where I said: “The above manner of wording the issues for determination in both briefs raises two necessary questions, namely:- (i) what is the meaning of “issues arising for determination” in a Brief and (ii) what are its objects and purpose? As for the meaning of ‘Issue” I cannot do better than borrow the words of Buckley, L.J., in Howel v. Dering & Ors. (1915) 1 K.B. 54, at p.62 thus: “The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is “in issue” and which a jury has to decide is not necessarily “an issue” within the meaning of the rule”. Later he continued: “An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.” So it is in an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. v. V/O Ex-portchleb (1966) 1 Q.B. 630, at p. 642: “But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not “an issue.”

— Nnaemeka-Agu, JSC. Ugo v Obiekwe (1989) – SC.207/1985

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WHEN IS AN ISSUE ON APPEAL EXTRANEOUS

An issue is said to be extraneous, when it was neither raised nor canvassed at the trial court on pleadings and in the evidence of the parties.

– Ogbuagu JSC. Ogundele v. Agiri (2009) – SC

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WHAT WAS NOT AN ISSUE AT TRIAL CANNOT BE AN ISSUE ON APPEAL

The law is trite that a point that is not made an issue in the course of trial cannot be so raised in an appellate court unless with the leave of the trial court or the appellate court. See Oshatoba v. Olujitan 2000 5 NWLR part 655 page 159, Obioha v. Duru 1994 8 NWLR part 365 page 631, and Akpene v. Barclays Bank of Nigeria Ltd 1977 1 SC 47.

— A.M. Mukhtar JSC. Ohochukwu V. AG Rivers State & Ors. (SC.207/2004  • 17 February 2012)

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PROPER APPROACH TO ISSUES OF FACT

In Adeyeye v. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432 at p.451, I referred to what I thought was the proper approach to the issues of fact and findings of fact by trial Courts viz: “The proper approach for any trial court is first set out the claim or claims; then the pleadings, then the Issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial Judge will then record his logical and consequential findings of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of fact.”

— Oputa JSC. Onwuka & Ors. V. Ediala & Anor. (SC.18/1987, 20 January 1989)

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A DOUBLE BARRELED ISSUE

Let me take the first issue, which looks to me a double – barrelled one. I say this because it involves both adjectival law as well as substantive law.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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