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ESSENCE OF FORMULATION OF ISSUES – APPEAL SHOULD BE ARGUED ON ISSUES

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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

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ANY QUESTION WHICH DOES NOT RESOLVE THE APPEAL ONE WAY OR THE OTHER IS NOT A PROPER ISSUE

It needs to be stressed that every point in controversy between the parties in an appeal is, in a loose sense, an issue. But for purposes of a brief, an issue is one, which is so crucial that if it is decided in favour of a party, he is entitled to win the appeal. Any question which does not adequately raise a substantial issue which if resolved one way or the other will affect the result of the appeal is not a proper issue for a brief. See Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (Pt. 199) 501 at 542.

— Edozie JSC. Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

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ISSUE MUST ARISE FROM A GROUND OF APPEAL

It is trite law that an issue for determination in an appeal must relate to and arise from the grounds of appeal filed. Therefore any issue which is not related to any ground of appeal is not only vague but also incompetent and liable to be ignored in the determination of the appeal or struck out.

– Mahmud JSC. Ogiorio v. Igbinovia (1998)

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COURT OF APPEAL SHOULD CONSIDER ALL ISSUES

It is trite law that an appeal court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the appeal. In such a situation, the court may adopt such issues as may dispose of the appeal and may not be bound to consider all the other Issues he considers irrelevant and unnecessary.

— M.A. Danjuma JCA. Folorunsho Ogboja v. Access Bank Plc (CA/AK/38/2013, 18 MAY 2015)

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WHEN COURT RAISES AN ISSUE, COURT SHOULD DO WELL TO GIVE PARTY OPPORTUNITY TO ADDRESS IT ON THE ISSUE

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

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ISSUES ARE ARGUED NOT GROUNDS OF APPEAL

I think I ought to stress in the first place that it is the issues distilled from all appellant’s grounds of appeal that may be argued in the Court of Appeal or the Supreme Court and not the grounds of appeal.

– Iguh, JSC. Oshatoba v. Olujitan (2000)

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ISSUE REFORMULATED BY COURT MUST BE ROOTED IN THE GROUNDS OF APPEAL

I have no doubt at all, that a court has the inherent power, in the interest of justice, to reject, modify or re-frame issues distilled for the determination of a case before it. However, the exercise of this power is not open ended or limitless, the issue so formulated must be rooted in the grounds of appeal, the Court must ensure that any issue so modified, or re-formulated comes within the ambit of the complaint contained in the grounds of appeal.

– Tijjani Abubakar, JSC. Nwobike v. FRN (2021)

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