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ISSUES FORMULATED ARE NOT SUPPOSED TO BE ARGUMENTATIVE

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Issues for determination are formulated’ and not supposed to be argumentative’ as formulated. The parties are expected to coin their issues for determination as precise as possible with professional elegance and brevity but without sacrificing its essential messages. By practice, issues formulated are different from issues argued or arguments on issues. Arguments or analogies on issues formulated are not to be contained in the issues so formulated. Arguments and analogies are to be supplied separately to amplify on the issues so formulated. The Respondents’ Counsel is found inadequate in this regard for formulating convoluted issues for determination at pages 7-8 of the Respondents’ Brief.

— S.D. Bage, JSC. Onyekwuluje v Animashaun (2019) – SC.72/2006

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PROLIFERATION OF ISSUES IS CONDEMNED

The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal? This Court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Farouk (1990) 2 NWLR (Pt. 131) 137; Anonk Lodge Hotels Ltd, v. Mercantile Bank of Nigeria Ltd (1993) 3 NWLR (Pt. 284) 72.

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

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COURT DOES NOT DETERMINE ISSUES THAT ARE INCOMPETENT

The law is that once a preliminary objection succeeds in respect of some issues for determination in an appeal, there will be no need to go further to consider the arguments proffered on those issues formulated for determination which have been found to be infirmed and incompetent. See: Mosoba v. Abubakar (2005) 6 NWLR (Pt. 922) 460; NEPA v. Ango (2001) 15 NWLR (pt. 737) 627 at 645-6 46; Ralph Uwazurike and Ors v. Attorney General of the Federation (2007) 2 SCNJ 369 at p.380; B.A.S.F. Nig. Ltd v. Faith Enterprises Ltd (2010) 1 SCNJ 223 at P.249.

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

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FAILURE TO APPEAL FOR ISSUES NOT HEARD BY THE LOWER COURT

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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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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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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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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