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LEAVE IS TO BE SOUGHT FOR SUPREME COURT TO DETERMINE AN ISSUE NOT RAISED AT LOWER COURT.

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Now, any party to an appeal who seeks the determination of an issue that was never raised at and determined by the trial and/or lower Court must show that it has sought and obtained the leave of the Court earlier. It is long settled that where no leave was sought and obtained, and one is required, the appeal is incompetent and liable to be struck out. See EHINLANWO V. OKE & ORS (2008) LPELR – 1054 (SC) and METUH V. F.R.N (2017) 4 NWLR (PT 1554) 108 at 121.

— M.D. Muhammad, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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issue, leave of court

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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WHERE FRESH ISSUE IS TO BE RAISED LEAVE OF COURT MUST BE SOUGHT

Need I remind the Appellant’s counsel that it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, as he tried to do in this appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out.

– A. Aboki JSC. Obi v. Uzoewulu (2021)

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APPELLATE COURT WILL NOT ALLOW FRESH ISSUE ON APPEAL TO BE TAKEN

In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) LPELR – 2377 (SC), this Court per Chukwuma-Eneh JSC (of blessed memory) restated the principle inter-alia as follows:- “It is trite that an appellate Court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the Courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial Court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been sought and obtained.”

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LEAVE OF COURT MANDATORY WHERE CONDITION PRECEDENT

By virtue of section 233 of the 1999 Constitution of Nigeria and section 22 of the Supreme Court Act Cap 15 Laws of Nigeria 2004, the word leave means permission. Therefore an appellant is bound, where necessary to seek the formal permission of the court below before setting an appeal in process. Leave of court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained.

– Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

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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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APPEALS ARE NOT WON BASED ON PROLIFERATION OF ISSUES

As is the practice, briefs were duly filed and exchanged. The 1st Appellant formulated eight issues for determination, the 2nd to 6th appellants, four and the 1st respondent, five. This Court and the Supreme Court have said it times without number that appeals are not won by the quantity of issues but by their quality. It is not by formulating large number of issues as it is in this case, that appeals are won. With respect, I do not see the place of eight issues in this appeal. They are prolix and repetitive. It is not my intention to reproduce the issues formulated by the parties.

— Niki Tobi, JCA. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)

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