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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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.”
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
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)
It is trite that a respondent to an appeal in his reply to the appellant’s brief must confine himself within the issues arising from the grounds of appeal.
– ADEKEYE JCA. Anyafulu v. Agazie (2005)
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
✓ In Unity Bank & Anor V. Edward Bonari (2008) 2 SCM 193 at 240, this court had opined thus: “It is now firmly settled that the purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.” See also, Musa Sha (Jnr.) & Anor V. Da Ray Kwan & 4 ors (2000) 5 SCNJ 101 (2000) 8 NWLR (Pt 670) 685.
✓ In Sha V. Kwan (supra) at 705 this court has stated thus: “So long as it will not lead to injustice to the opposite side, appellate courts possess the power and in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties…”
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