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FAILURE TO APPEAL FOR ISSUES NOT HEARD BY THE LOWER COURT

Dictum

It is obvious that the respondent has not appealed against the failure of the court below to consider other issues raised before it. The inference that can rightly be made from that position is that they took a chance that the judgment of the court below would be affirmed by this court. Having regard to what I have said above on the only issue considered by the court below, it is manifest that the risk taken by the respondent has not enured in its favour. On the other hand, as already observed, the trial court had found for the plaintiff/appellant in respect of all his claims against the respondent. As those findings remained undisturbed, it would not in my humble view, be right in the circumstances to now deny the appellant of the fruits of his success by remitting the case to the court below for the consideration of the issues that the court deliberately left unconsidered in its judgment. The justice of the case demands that the appellant should be granted all his claims as found by the trial court. And it is hereby granted accordingly.

— Ejiwunmi JSC. Melwani V. Five Star Industries Limited (SC.15/1994, 25 January 2002)

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COURT IS TO CONSIDER ALL ISSUES PLACED BEFORE IT

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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REASON FOR THE FORMULATION OF ISSUE IN AN APPEAL

It cannot be over-empahsised that the object of the formulation of issues for determination in an appeal is to enable the parties narrow the issues arising from the grounds of appeal filed in the interest of clarity, brevity and accuracy, thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal.

– Iguh, JSC. Clay v. Aina (1997)

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ISSUE MUST ARISE FROM A GROUND OF APPEAL

I scarcely need to repeat that every issue in an appeal must arise from one or more grounds of appeal. It is usual for one, two or more grounds of appeal to constitute an issue, not the other way round. The reverse could not have arisen if counsel had done well to remember what an issue in an appeal really is.

– Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)

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PURPOSE OF FRAMING OF ISSUES

✓ In Unity Bank & Anor V. Edward Bonari (2008) 2 SCM 193 at 240, this court had opined thus: “It is now firmly settled that the purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.” See also, Musa Sha (Jnr.) & Anor V. Da Ray Kwan & 4 ors (2000) 5 SCNJ 101 (2000) 8 NWLR (Pt 670) 685.

✓ In Sha V. Kwan (supra) at 705 this court has stated thus: “So long as it will not lead to injustice to the opposite side, appellate courts possess the power and in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties…”

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ISSUES RAISED BUT NOT RESPONDED TO IS ADMITTED

The consequence of failing to respond to the adversary’s submissions on pivotal issues was amply stated by this Court, in Alhaji M. K. Gujba V. First Bank Of Nigeria Plc & Anor (2011) LPELR 8971 (CA) per Obande Ogbuinya JCA at Pages 42-43 Para B-A, where His Lordship held: “The learned Counsel for the Respondents, in his infinite wisdom, did not respond to the submissions of the learned counsel for the Appellant on this point. In law, that is a costly failure. The telling effect of that failure to answer to the Appellant’s counsel’s submissions is that the Respondents are deemed to have admitted them. On this principle of law, I draw on the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (pt.1209) 518 at 586, where Onnoghen, JSC, held:- ‘It is clear from the issues formulated and argued by learned senior counsel for the 1st and 2nd Respondents in their brief of argument do not include argument on appellant’s said issue No. 8. It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting party. I therefore, in the circumstance, hold that the 1st and 2nd Respondents by not reacting to the issue in question, have conceded the issue as formulatedand argued by the learned counsel for the Appellant.’ It follows that the Respondents played into the hands of the Appellant, on this issue, when they failed to join issues with the arguments of the Appellant therein. This omission, whether intention or inadvertent, makes the appellant hold an ace on this issue.”

— O. Adefope-Okojie, JCA. Kanu v FRN (2022) – CA/ABJ/CR/625/2022

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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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