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GROUNDS OF APPEAL SHOULD NOT BE LESS THAN THE ISSUES FORMULATED

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A principle of formulation of issues in appeal is that the grounds of appeal should in no circumstance be less than the issues for determination. While the Court may tolerate equal number of grounds of appeal and issues framed therefrom, as in this case, a situation where there are less grounds of appeal than issues for determination will not be tolerated. See Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; A-G Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (pt. 99) 566.

— N.S. Ngwuta, JSC. Odogwu v State (2013) – SC.122/2009

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grounds of appeal

ISSUE MUST HAVE A GROUND OF APPEAL SUPPORTING IT

Issues for determination numbers (1), (3), (4) and (6) are based on no grounds of appeal at all or upon grounds 4 and 5 which had already been struck out. This should not be. Counsel will do well to remember that issues for determination must arise from and relate to the grounds of appeal filed, and no more. Conversely, any issue for determination which has no ground of appeal to support it is worse than useless: See on this Osinupebi v Saibu & ors. (1982) 7 S.C. 104 at pp. 110-111; also Western Steel Works Limited & Anor. v. Iron & Steel Workers Union of Nigeria (1987) 1N. W.L.R. (Part 49) 284, at p. 304.

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

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RESPONDENT CANNOT RAISE ISSUES OUTSIDE THE GROUNDS OF APPEAL

It is settled law that issues for determination must relate to and arise from the grounds of appeal filed by the appellant and any issue that is not distilled from the grounds of appeal is incompetent and must be struck out. A respondent must formulate his issues from the grounds of appeal and he has no business to raise any issue outside them when he did not file a cross appeal or a respondent’s notice that the judgment of the court should be affirmed on other grounds. See:- “ Carlen (Nig.) Ltd. v. University of Jos and Anor (1994) 1 SCNJ 72 Agwundu and Ors v. Onwumere (1994) 1 SCNJ 106 Godwin v. C.A.C. (1998) 14 NWLR (Pt. 584) 162 Shitta Bey v. Attorney-General of the Federation (1998) 10 NWLR (Pt. 570) 392.

— Opene JCA. United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 FEB 2001)

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USING BOTH SIMILAR GROUNDS FROM ORIGINAL NOTICE OF APPEAL AND AMENDED NOTICE OF APPEAL

Equity follows the law and does always look at the substance and not the form. The 3rd Respondent on this point of his preliminary objection appears to be blighted by the form, and not the substance. Upon my careful perusal of grounds 1, 2, 3 & 6 of the Amended Notice of Appeal they appear to be substantially the replication of grounds 1, 2 & 3 of the original notice of appeal, grounds 4 in the original notice of appeal and the amended notice of appeal and the amended notice of appeal are identical. Similarly, ground 5 in the original notice of appeal was replicated, in ground 5 of the amended notice of appeal. The two grounds are identical. I do not, therefore, think that the respondents in the appeal have been misled, embarrassed or in any way prejudged by the Appellants merely indicating that their issue 1 has been formulated from original grounds 1, 2 & 3 as well as grounds 1, 2, 3 & 6 in the Amended Notice of Appeal. The Respondents similarly are not misled and prejudiced by the Appellants indicating that issues 2 & 3 are issues the subject of identical grounds 4 & 5 in both the original notice of appeal and the Amended Notice of Appeal respectively. Therefore, using blue pencil rule to discountenance, references, in the Appellants’ issues for determination of the appeal in their brief, to grounds 1, 2, 3, 4 & 5 in the original notice of appeal filed on 9th August, 2016 will, in the peculiar facts of this case, meet the ends of substantial justice. Courts these days strive to doing substantial justice as they now turn away from arcane technicality.

— Ejembi Eko, JSC. Oboh & Anor v. NFL (SC.841/2016, January 28, 2022)

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TWO ISSUES CANNOT ARISE FROM A SINGLE GROUND OF APPEAL

‘Unarguably, issues No. 1 and 2 were distilled from ground 1, albeit with other grounds of appeal Mr Ajayi for the appellant, had no answer to the contention of Mr. Falana, for the respondents, on this vital issue of law Thus, I take it that he has conceded to it. The law is that a ground of appeal is not to be split into two issues. That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at P.67. Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See: Odoemena Nwaigwe and Ors v. Nze Edwin Okere (2008) 5 SCNJ 256; Yadis Nig. Ltd. v. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86.’

— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010

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ISSUES FOR DETERMINATION MUST BE FORMULATED FROM GROUNDS OF APPEAL

For issues for determination formulated by the respondent to be valid, they must be distilled from the grounds of appeal. In the instant case, as the respondents’ re-formulated issues are not shown to be tied to any of the grounds of appeal filed by the appellant they are discountenanced. [Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) 1; Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt.501) 533 at 560 referred to].

— Adeyemo v. Ida & Ors. (1998) – CA/1/6/92

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ISSUE: NATURE OF ISSUE & GROUNDS OF APPEAL

It is trite that a Respondent may not formulate issues outside the grounds of appeal contained in the Appellant’s Notice of Appeal, in this case contained in Pages 337 – 346 of the printed records of Appeal. Issues for determination must be based on and correlate with the grounds of appeal and should be an answer to the grounds of appeal. An issue may encompass one or more grounds of appeal, it is incompetent where the issues are not based on the grounds of appeal, they are irrelevant. Issues for determination in an appeal is akin to pleadings in the lower Court, hence adherence to the strict observance of the rules on formulating issues for determination. If all the above constituent elements or requirements of the doctrine are not fully established, the plea of estoppel per rem judicatam can not be sustained.

– Nwaoma Uwa, JCA. NOGA v. NICON (2007)

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