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ISSUE FROM INCOMPETENT GROUND OF APPEAL IS ITSELF INCOMPETENT

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Ordinarily, any issue formulated from an incompetent ground of appeal is itself incompetent and must be struck out. Issues are the important questions formulated for determination by the court and could be distilled from more than one ground of appeal. See; Sunday Madagwa V. The State (1988) 12 SC (Pt. 1) 68 at 76 … Generally, issues are not meant to be formulated on each ground of appeal but raised or distilled out of a combination of the essential complaints of the appellant in the grounds of appeal. Therefore, issues must necessarily relate to facts or law decided by the court whose decision is appealed against. In other words, it is ideal to distill or formulate an issue from more than one ground of appeal but where this is not done or it is impossible, just only one issue may be raised from one ground of appeal. Therefore, a valid Notice of Appeal with one ground of appeal and a single issue for determination is sufficient to sustain an appeal … There is no doubt that it is now an established practice that an appeal is decided upon the issues raised or formulated for determination of the court. In effect, when issues for determination are formulated, the grounds of appeal upon which they are based or from which the issues are formulated become extinguished or expired. The argument of the appeal is then based on the issues so formulated but not on the grounds.

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

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A PARTY CANNOT CANVASS ARGUMENT OUTSIDE OF ISSUES FRAMED

It is clear that both issues are confined to the competence of the plaintiffs/respondents to sue in the matter. As they do not extend to the competence of the defendants/appellants to defend the action, I shall not go there. This is because parties are, bound by the issues formulated in their briefs. In other words, a party cannot advance an argument outside the issue or issues formulated in the brief without leave of Court. This stems from the larger ambit of our adjectival law that parties are, bound by their briefs.

— Niki Tobi, JSC. Mozie & Ors. v. Mbamalu & Ors. (2006) – S.C.345/2001

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WHAT AMOUNTS TO PROLIFERATION OF ISSUES IN AN APPEAL

Now, what would in law amount to proliferation of issues in an appeal is no longer a vexed issue as it has been pronounced upon severally by the appellate Courts, including the apex Court. While it is true that an issue for determination must flow from the ground(s) of appeal and that this Court has the power to formulate issues for determination in appropriate and deserving circumstances or to re-formulate or modify the issues formulated by the parties, it is well settled law that an Appellant, as well as a Respondent, is not permitted or allowed to raise issues in excess of the grounds of appeal and that where the number of issues formulated are more than the number of the grounds of appeal it amounts to nothing but a proliferation of issues, which in law is not acceptable. See Dr. Arthur Agwuncha Nwankwo & Ors. v. Alhaji Umaru Yar’Adua & Ors. (2010) 12 NWLR (Pt. 1209) 518. See also Unilorin v. Oluwadare (2003) 3 NWLR (Pt. 808) 557;Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 243; Sogbesan v. Ogunbiyi (2006) 4 NWLR (Pt. 969) 19; Agu v. Ikewibe (1991) 3 NWLR (Pt. 130) 385;Adelusola & Ors v. Akinde & Ors (2004) 12 NWLR (Pt. 887) 295.

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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AN ISSUE IS THE QUESTION FOR RESOLUTION WHICH DETERMINES THE DISPUTE

That is to say the appellant having succeeded in establishing that the respondent’s application to register the foreign judgment was filed out of time, the need to rely on the other issues to arrive at the same result is quite necessary. An issue is the question in dispute between the parties necessary for determination of the suit or appeal. An issue, which is normally raised by way of a question, is usually a proposition of law or fact in dispute between the parties necessary for determination by the court, a determination which will normally affect the result of the suit or appeal. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Okoromaka v. Chief Odiri (1995) 7 NWLR (Pt.408) 411 and Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 at 641-642 … As the determination of the five issues in the appellant’s brief of argument will not affect the result of this appeal, the issues have ceased to be the real issues for determination between the parties in this appeal. This is because courts of law are not established to deal with hypothetical and academic questions. Courts are established to deal with life issues which relate to matters in difference between the parties. See National Insurance Corporation v. Power and Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1 at 22; Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 728; Ekperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 179; Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330 and Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt.852) 282 at 300.

— M. Mohammed, JSC. Marine Co. v Overseas Union (2006) – SC.108/2001

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ISSUE CANVASSED BELOW CAN BE DECIDED BY SUPREME COURT EVEN IF NOT APPEALED

There is however an aspect which offends against the provisions of our Constitution relating to the guaranteed freedom of association. There is no ground of appeal before us by the appellant or a cross-appeal by the respondent covering this point. However, the issue was canvassed in the court below. Unfortunately, the court below expressed no opinion on it. This Court can in exercise of its powers under Section 22 of the Supreme Court Act, Cap. 424 decide the issue.

– Karibe-Whyte JSC. Agbai v. Okogbue (1991) – SC 104/1989

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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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APPELLANTS’ ISSUE WILL BE ADOPTED

It is observed that the issues raised by each party reproduced supra are similar save for difference in couching language style. I will therefore adopt the Appellant’s issues as my guide in the determination of this appeal for the simple reason that he is the owner of the appeal.

— B.B. Aliyu, JCA. Oboh v. Oboh (2021) – CA/B/372/12

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