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WHEN AN APPEAL IS ENTERED, THE APPEAL COURT IS SEISED OF THE WHOLE PROCEEDING

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As observed earlier, there is a finding by the court below that there was a pending appeal before it as Appeal No. CA/L/133/93 which was entered on May 2, 1995. Now, in accordance with the provisions of the Court of Appeal Rules, 1981 (as amended) an appeal is said to be entered in the court when the record of proceedings in the trial court has been received in the Registry of the court. See: Order 1 Rule 22, Court of Appeal Rules (1981) (as amended); Order 4 Rule 10, Court of Appeal Rules, 2007 (as amended). Once it is so entered, an appeal is then said to be pending. The Rule governing the control of proceedings during pendency of an appeal is that after an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the court below (i.e. the trial), but any application may be filed in the trial court for transmission to the court below. See Order 4, Rule 11. Thus, in pursuance of the above provisions of the Court of Appeal Rules, the trial court will have no competence or jurisdiction to decide on any application whether on notice or ex-parte in relation to an appeal which the trial court has become FUNCTUS OFFICIO. If the trial court takes any step thereon, except for the purposes of transmitting the processes so filed to the Court of Appeal, that step taken will be declared a nullity.

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

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WHERE NO ISSUE ARISES FROM A GROUND OF APPEAL

In law, a ground of appeal from which no issue for determination was distilled is deemed abandoned and liable to be struck out without much ado. Consequently, Ground 7 in the Notice of Appeal are hereby stuck out.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

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COURT CANNOT REVIVE AN INCOMPETENT APPEAL

The inherent jurisdiction to regulate proceedings in this court does not arise until there is a lis extant upon which the inherent jurisdiction operates. There is no provision either in the Constitution, the Court of Appeal Act or Court of Appeal Rules vesting this court with jurisdiction to validate by rectifying defects in appeals which are otherwise incompetent. There is no power in this court to entertain any application for or grant any relief in respect of a putative or incompetent appeal.

— Salami, JCA. Ifeajuna v. Ifeajuna (1998) – CA/E/181/97

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AN APPEAL IS AGAINST A RATIO, NOT OBITER

It also has to be observed that an appeal is usually against a ratio not normally against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is still against the ratio.

— Oputa, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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WHERE ERROR OF LAW BY TRIAL JUDGE, APPEAL COURT WILL REVERSE THE DECISION

A decision of a lower court on any point will be reversed by the appellate court where error of law committed by the lower court is fatal because it has occasioned a substantial miscarriage of justice.

– Adio, JSC. UBN v. Ozigi (1994)

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RESPONDENT CANNOT COUCH ISSUE OUTSIDE APPELLANT’S GROUNDS OF APPEAL

Be that as it may, it would therefore not be necessary to go into the second issue formulated for determination in this notice of objection. But I will like to comment and emphasize that a Respondent is not permitted to couch any issue outside the perimeters of the Appellant’s grounds of appeal unless such a Respondent has filed a Respondent’s notice or Cross-Appeal. And where an issue for determination is not related to the grounds of appeal it would be incompetent and it ought to be struck out. See:- Falola v. UBN (2005) 7 NWLR Part 924 Page 405 at 424.

— J.O. Bada, JCA. Conoil v Vitol (2011) – CA/A/213/2010

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WHERE NO APPEAL AGAINST SPECIFIC FINDINGS, THOSE FINDINGS REMAIN UNASSAILABLE

The excerpts above of the trial Court findings and conclusions were not appealed against at the lower Court which throws up the settled law that where there is no appeal against specific findings of fact made at the trial Court, those findings remain for all time unassailable and deemed accepted as representing the true state of affairs. It therefore becomes futile trying to smuggle those same issues at another level of appeal since they have in effect been conceded by the party against whom they were decided and remains valid and binding on all parties forever. I rely on Anyanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar’Adua (2010) All FWLR (Pt.534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt.739) 1080 at 1094.

— M.U. Peter-Odili, JSC. MTN v. Corporate (2019) – SC.674/2014

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