Appeal

The normal rule is that a point presented for the first time in a Court of Appeal ought to be most Jealously scrutinised. A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time if it is satisfied that it has before it all the facts bearing on the contention as completely as would have been the case if, the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is impugned if any opportunity for explanation had been offered them

MANAGEMENT ENTERPRISES LTD & ANOR V. OTUSANYA LGC(16/4/1987) E

It is well established principle of law that where an appellant fails to file his brief of argument within the time stipulated by Order 6 Rule 10 of the Court of Appeal Rules 1981 or within the time extended in his favour by the Court of Appeal as in this instant case, the respondent may apply to the Court pursuant to Order 6 Rule 2 of the same rules for the said appeal to be dismissed for want of prosecution under the same Rules. See Thomas Eminy Olumesan vs Ayodele Ogundepo (1996)2 NWLR (pt.433)628. In such situation, the appeal is deemed abandoned by the appellant and must therefore be struck out. See Akibu & Ors vs Oduntan & Ors (2000)7 SCNJ 189; Sparkling Breweries Ltd & Ors Vs Union Bank of Nigeria Ltd (2001)7 SCNJ 321.
My lords, it will not be out of place to refer to this Court's decision in Akanke Olowu & Ors V Amudatu Abolore (1993)5 NWLR (pt.255) where this Court per Karibi-Whyte JSC had this to say.
"It has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant's brief of argument is final. The appeal so dismissed can not be revived."
This Court in the above mentioned case further held that once the Court of Appeal has dismissed an appeal for want of diligent prosecution due to appellant's failure to file his brief of argument, that Court becomes functus officio on that matter.

It must be stated at this point that it is not every error or mistake by a Court that will lead to a reversal of its judgment on appeal. Only a mistake that occasions miscarriage of justice does. See John Owhonde V. Alphonso Ekpechi (2003) 9 SCNJ 1, and Ukiri V. Geco Prakla Nigeria Ltd (2010) LPELR-3341 (SC). In the instant case where the mistake of the Court below does not occasion miscarriage of justice, the mistake is accordingly discountenanced.

By filing that Notice of Withdrawal, he was no longer interested in the outcome of the appeal and the appellant who is desirous of getting to see the final outcome of the appeal cannot be compelled to keep him as a party. If Chief Kayode Adekunle Olusegun Williams has chosen to renounce his interest in the appeal which will determine the rights of the parties in the estate of their deceased father, he is at liberty to do so since it is a personal right which he can forfeit. His withdrawal of his appeal cannot frustrate the 1st appellant's appeal from being heard. By withdrawing his appeal, he will be bound by the outcome of the appeal as if he were a party. See: Green v. Green (1987) 3 NWLR (Pt. 61) 480.

Where the Registrar has issued the certificate of noncompliance, he cannot withdraw it by issuing another certificate showing the appellant has complied with the conditions of appeal. It is left for appellant's counsel to take the necessary steps to apply for extension of time to comply with conditions of appeal. Alternatively, he may apply under Order 3 Rule 20 (4) for the relisting of the appeal after its dismissal under Order 3 Rule 20(1).

CHAIRMAN, CHIEF EXECUTIVE NATIONAL DRUG LAW ENFORCEMENT AGENCY (NDLEA)

It is in the application of the foregoing clear and unambiguous adjectival provisions that this Court has, in a plethora of its decisions, maintained that it does not matter under which section of the law, the definition or the penal section, an appellant is convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial, been rectified by the trial Court. See Alhaji Mujahid Dokubo-Asari V. Federal Republic of Nigeria 5-6 SC 150 and Akinola Olatubosun V. State (2013) LPELR – 20939 (SC) and Boniface Adenike v. State (2015) LPELR – 24281 (SC).

A judgment or order of Court remains in force and binding on the parties until it is set aside. Service of Court processes may be a jurisdictional issue which can be raised at any stage of a case. However when a trial Court has determined and made pronouncement on that issue, a party who is aggrieved must follow the right course that is appeal challenging the pronouncement must go through the Court of Appeal before a subsequent appeal from the Court of Appeal can be heard and determined in this Court.
See Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382, S.233 of the Constitution of the Federal Republic of Nigeria 1999, Babatunde v. Olatunde (2000) 2 NWLR (Pt.646) 568.

The stance of the appellant clearly goes against the basic principle that orders of Court are deemed valid until set aside by the same Court or on appeal. This position is well stated by this Court in the case of Babatunde v Olatunde (2000) 2 NWLR (Pt. 646) 568.
"A judgment of a Court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a Court of competent jurisdiction. The position therefore is that a person who knows of a judgment, whether null or void, given against him by a Court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside."

Besides, an Appellant's right of appeal is circumscribed within the parameters of a decision appealed against. Thus, it is the opinion appealed against that is affirmed or reversed, and this cannot undertake decisions, which may be of utmost importance, without hearing what the Court below had to say about it -see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430 SC, Nuwon v. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC.

Where a Respondent is not comfortable with a finding, not the entire Judgment, which he considers fundamental, he can challenge same by filing a cross-appeal – Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565. Where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent's Notice – Kayili V. Yilbruk (2015) LPELR-24323(SC).
Without a cross-appeal or Respondent's Notice, he will not be allowed to attack the judgment, and the effect of violating this rule is that arguments in his brief in support of the Appellant will be ignored – see Obi V. INEC(supra).

The only difference is that, unlike the Federal High Court and the other categories of High Courts, its [National Industrial Court] decisions are deliberately made appealable only to the Lower Court, the Court of Appeal; there being no further appeal beyond that Court, Section 243(4). In fact, by the most thoughtful insertion ofSection 243 (4) (supra), the draftsperson achieved two things.

Even so, he brought in another argument that he is allowed to rely on new line of argument on appeal", citing Ogunbadejo V. Owoyemi (1995) 1 NWLR (Pt.271) 517, wherein this Court held –
I do not accept the argument – – that because the law was not cited or relied upon in the Court below to support the view of that Court on this issue and no leave has been given here, it cannot be relied upon by this Court, I believe that such line of argument is the product of conclusion between an issue and an argument or an authority in support thereof. I believe the true position of the law is that whereas a party – – cannot in this Court, without leave, raise an issue which was not canvassed in the Court below such a party can rely upon any new line of argument or new authorities, judicial or statutory to support his argument in an issue, which is properly before the Court
The decision of this Court in Ogunbadejo V. Owoyemi (supra), may appear helpful to the Appellant however, it cannot avail him.
The issue therein was whether the Appellant was right in relying on a Section of a Law not relied upon in the lower Courts but was in support of the argument he proffered there. This Court held that it was not a fresh point because the law cited was in support of his argument on an issue that was properly before the Court.

Is he asking this Court to determine weight of the evidence?
Weight of evidence is the persuasiveness of some evidence in comparison with other evidence – Blacks Law Dictionary 9th Ed.
It is settled that in appeals in criminal cases, an Appeal Court will not allow an appeal merely because the verdict reached by the trial Court is challenged on the grounds of its being contrary to the weight of evidence, and will only do so if it can be shown that the said verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence – see Adi v. R 15 WACA 6 where the West African Court of Appeal (WACA) clearly stated-
The last point- – was that the decision was contrary to the weight of evidence. This is not a proper ground of appeal in criminal cases in which the point is not the preponderance of evidence on one side, which outweighs the evidence on the other side. The proper ground should have been that the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.

This apart, the general rule is that a party cannot, and will not be allowed to raise fresh issues at the appellate Court without leave of Court.

An appeal is determined on the issues for determination formulated by counsel, or by the Court. Such issues must arise from the grounds of appeal. Any issue that does not arise from the grounds of appeal is incompetent and liable to be struck out. It is also settled that any ground of appeal not covered by an issue for determination is deemed abandoned and liable to be struck out. See: Okoye & Ors. Vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) 6 NWLR (Pt.199) 501; Egbe v. Alhaji (supra); Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (Pt.249) 534: Elohor Vs Osayande (1992) 6 NWLR (Pt.249) 524 @ 534.

Every ground of appeal shall arise from the judgment or decision appealed, and must be connected to the controversy between the parties. See SARAKI v. KOTOYE (1992) 11- 12 SCNJ 26; (1992) NWLR (Pt. 264) 156. It should constitute a challenge to, or an attack on the ratio of the decision on appeal. It follows that where a ground of appeal, as formulated, does not arise from the judgment on appeal, and it purports to raise and attack an issue not decided by the judgment appealed against, as is evident in the instant appeal, the same is incompetent and liable to be struck out: See C.C.B. Plc. v. EKPERI (2007) 3 NWLR (Pt. 1022) 493.

Thus, appeals on facts, or mixed law and facts are not primarily within the jurisdiction of this Court.

Section 233 of the Constitution vests exclusive jurisdiction on this Court to hear and determine appeals from the Court of Appeal. The only circumstances appeals from the Court of Appeal can be heard as of right are those circumstances set out in Sub-section (2) thereof. Any ground of appeal not falling within the scope of Section 233(2) of the Constitution, particularly grounds of appeal complaining about facts, or mixed law and facts against the decision of the Court of Appeal (the Court below) shall only lie to this Court upon leave of the Court below or this Court first sought and granted. See S.233(3) of the Constitution.
From a long line of decided cases, and it is now settled, that this Court is not a Court of fact in which appeals to it on facts or mixed law and facts lie as of right. It should now be clear to every appellate lawyer that the purpose of Section 233(3) of the Constitution requiring that appeals on facts, or mixed law and facts shall lie to this Court only upon leave first sought and obtained, is that such appeals shall lie to, and be heard by this Court only on exceptional circumstances. After all, on facts or mixed law and facts, it should be assumed correctly too that the trial Court or the Court below are well grounded. Therefore, upon concurrent findings of fact, the appellant is enjoined to show exceptional circumstances why his appeal on facts, or mixed law and facts should be heard.

This Court, like any other Court of law is competent to entertain or hear appeals or complaints of any litigant before it if, among other things, the case that comes before it was or has been initiated by due process of law and upon fulfillment of any condition precedent to exercise by it of its jurisdiction. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 at 593; SKENCONSULT (NIG.) LTD. v. UKEY {1981) 1 SC (REPRINT) 4. It follows, therefore, that the notice of appeal or every ground of appeal therein, shall strictly comply with either the enabling statute or the rules, failing which the appellate Court cannot exercise jurisdiction over the appeal as ground of appeal. See AKUBUE v. C.O.P. (1977) LMSLR 164 at 168.

The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal to this Court questions or issues which were not raised or considered by the lower Court, but where the questions or issues involve substantial points of law substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the questions to be raised and the points taken so as to prevent an obvious miscarriage of justice. See K. Apene v Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29;Shonekan v Smith (1964) ALL NLR 168 at 173; Stool of Abinabina v Chief Kojo Eyinadu(1953) A.C 209 at 215. One of the exceptions to this general rule is where the questions or issues in contention touch on the jurisdiction of the lower Court, a party can raise them even for the 1st time without seeking the leave of this Court.

The law is settled beyond which there is no argument that where a preliminary objection is issued challenging the competence of an appeal, same shall be resolved before considering the appeal. This is so because the labour of hearing the appeal will be in vain if at the end of the day the appeal is found to be incompetent. See Onyema & Ors v Egbuchulam (1996) 5 NWLR (Pt. 448) 224.

The condition precedent for raising fresh issues or point on appeal are as stated by Kalgo JSC, in Obiakor v State (2002) 10 NWLR (Pt.776) 1 at page 10:
"The general principle is that when a party seeks to file and argue in this Court any fresh issue not canvassed in the lower Court, whether that issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised pertains to issue of jurisdiction, the point or issue can be filed and argued with or without the leave of the Court even if it is being raised for the first time.
As this Court stated in Goar v Dasun & Ors (CA/J/EP/HA/420/07 of 6th April, 2009) relying on Awuse v Odili (2003) 18 NWLR (Pt.851) 116 at 161; Olufemi v Babalola (2009) 4 SCNJ 287 etc, it is trite, that parties are not allowed to set up one case at the trial Court, but go on to set up quite another, on appeal. Consistency is the name of the game.
The case set up at the trial Court is one of self-defence. The defence counsel, at least, was emphatic and fastidious about this. Consistent with the principle in Amuneke v State (supra), in the case of self-defence the accused, relying on the plea, must first admit the facts of the commission of the offence and then assert that he had used such force to the assailant as it was reasonably necessary to make the effectual defence against the assault.

Without any hesitation, I say that the Appeal totally lacks merit. Besides, there is not much this Court can do when an Appeal turns on the issue of credibility. The trial Court is at liberty to believe one side or disbelieve the other, and that belief can only be questioned on appeal if it is against the drift of the evidence when considered as a whole – see Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683.
As Oputa, JSC, so aptly put it in Adelumola V. The State (supra),"for example, we all know that 2 plus 2 makes 4. If a witness testifies that 2 plus 2 makes 5, and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him. There, and in such a case, an appellate Court can intervene."

He did not raise or even mention this issue at the trial Court, and I will reiterate the point I made earlier that a fresh issue can only be argued with leave of Court. This is because, as an appellate Court, this Court only has jurisdiction to correct errors of the Court below – See Director, SSS V. Agbakoba (supra), Obiakor V. State (supra).
See also Akpabio v. State (1994) 7 NWLR (Pt. 359) 635 SC, where this Court, per lguh, JSC, explained the position, as follows –
An appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice.

There is no connection between this Court and the trial Court; not directly anyway. The findings of a trial Court must be affirmed or reversed by the Court below before its decision gets to this Court. It is settled that before a pronouncement on its correctness can be made by this Court, it must be shown that the views expressed by that Court are wrong. It is only on such consideration that this Court can examine whether its Judgment is right or wrong – see Uor V. Loko (1988) 2 NWLR (Pt.77) 430, where Karibi-Whyte, JSC, added – The appellate Court is entitled to have the benefit of the opinions of the judges in the judgments of the Court below. It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere. Any Judgment - founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against such a judgment. Since an Appellants right of appeal is circumscribed within the parameters of the judgment appealed against, this Court will not lightly permit impugning the judgment on grounds of error other than are contained therein. See also Djukpan V. Orovuyovbe (1967) 1 All NLR 134 and Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC, wherein Nnaemeka-Agu, JSC, advised counsel to adhere to what Lord Birkenhead, L.C., had said in North Staffordshire Railway Co. v. Edge (1920) A.C. 254; as follows The efficiency and authority of a Court of Appeal, and especially of a final Court of Appeal are increased and strengthened by the opinions of learned judges, who have considered these matters below. To acquiesce in such an attempt as the Appellants have made in this case, is in effect to undertake decisions, which may be of the highest importance, without having received any assistance at all from the judges of the Court below. ...

With regards to the competence of the appeal before the lower Court, it must be borne in mind that a notice of appeal is a crucial initiating process, which forms the substratum or foundation of an appeal. Any defect in the notice of appeal renders it incompetent and liable to be struck out, as the Court of Appeal will lack jurisdiction to entertain it, See: Odunze & Ors vs Nwosu & Ors (2007) 13 NWLR (Pt. 1050) 1; Uwazurike vs A.G. Federation (2007) 8 NWLR (pt. 1035) 1; First Bank of Nig. Plc vs T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247.

One cannot agree more with the lower Court. A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competently before it and when same is initiated by due process of the law. Failure of an appellant to relate his Notice and grounds of appeal to the actual decision he is dissatisfied with renders the Notice of Appeal incompetent and nugatory. Because it is the foundation or substratum of the appeal, the incompetence of the notice of appeal negates the entire appeal as well. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Atolagbe V. Awuni (1997) 9 NWLR (Pt 522) 536 and CBN v. Okojie (2004) 10 NWLR (Pt 882) 488; SPDC Nig Ltd V. Sam Royal Nig Ltd (2016) LPELR-40062 (SC). In FBN Plc V. T.S.A. Industries Ltd (2010) LPELR-1283 {SC}, a decision on which the lower Court relied, this Court restated the principle thus:-
"A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent.
The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain."

Order 8 Rule 6 (1) Supreme Court Rules as amended provides for the unilateral withdrawal of an appeal by an appellant. For the rule to apply the following conditions must co-exist:
(a) There must be an appeal by the appellant;
(b) There must be a withdrawal of the appeal in the words of Form 19 or 20 or such words indicating that there is no intention to further prosecute the appeal;
(c) The withdrawal may be at any time before the appeal is called on for hearing;
(d) Notice of the withdrawal must be served on all parties to the appeal
(e) The notice of withdrawal must be filed with the registrar."
See: Dingyadi Vs INEC (No.2) (2011) 18 NWLR (Pt.1224) 154 @ 205 – 206 H C; Edozien Vs Edozien (1993) 1 NWLR (Pt. 272) 678 @ 699: Adeagbo Vs Yusuf (1990) 6 NWLR (Pt.158) 588.
For the Notice of Withdrawal to be competent under Rule 6 (1) above, all the parties to the appeal must consent to the withdrawal either by filing documents to that effect directly or, through their legal representatives in which case the appeal is deemed dismissed.
However, Rule 6 (4) provides that where all the parties do not consent to the withdrawal, it shall remain on the cause list to abide the discretion of the Court thereafter. See: Dingyadi vs INEC (No.2) (Supra) @ 206 C-E; In Re Nwude (1993) 3 NWLR (Pt.282) 492; Akuneziri vs Okenwa (2000) 15 NWLR (Pt.691) 526. The appeal shall remain on the list for the hearing of any issue as to costs or otherwise outstanding between the parties and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.

The law is settled that any point of law and/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said point remains binding on the parties. See Vaswani Trading Co. V Savalakh & Co (1972) 12 SC, Chief Ogunyade V. Oshunkeye & anor (2007) 12 NWLR (Pt 1057) 218 at 257 and AG Lagos State V AG Federation & Ors (2014) LPELR-22701 (SC).

The law is settled that any point of law and/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said point remains binding on the parties. See Vaswani Trading Co. V Savalakh & Co (1972) 12 SC, Chief Ogunyade V. Oshunkeye & anor (2007) 12 NWLR (Pt 1057) 218 at 257 and AG Lagos State V AG Federation & Ors (2014) LPELR-22701 (SC).

A Respondent must be able to discern and understand Grounds of Appeal which the Appellant has filed. When a ground is ambiguous and vague, then it attracts striking out.

Many a time, one observes that counsel seem to forget what a ground of appeal is. It is the totality of the reason why the decision complained of is considered wrong by the party appealing. In other words, they are the reason why the aggrieved party considers the decision to be wrong OJEMEN V MOMODU 11 (1983) 1 SCNLR 188.
CHIEF N. P. UGBOAJA V S. A. SOWEMIMO & ORS (2008) 7 SC 1.
Decidedly, the whole purpose of a Ground therefore is to give sufficient notice and information to the Respondent of the precise nature of the Appellants complaint against the judgment appealed MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V EXPO SHIPPING LINE (NIG.) LTD (2010) 5 SCM 111 3 5 SC (PT. 1) 171.
More so, it is bad couching of Grounds of Appeal, when an alleged error and misdirection, without even stating in what regard (whether of law or of fact) is stated NGERE V OKURUKET XIV (2017) 5 NWLR PT. 1559 Pg. 464 paragraph e f.

I agree and again state the law that where the Lower Court declines jurisdiction on an appeal before it, it is better for the Lower Court, not being the final Court, to hand down a decision on the substance of the case to enable the Supreme Court give consideration to the substance where it overrules the Lower Court's decision to decline jurisdiction.
Contrary to what has been urged on this Court in this appeal, let me state clearly that the mere consideration of the substance of a case by a Court despite its lack of jurisdiction does not automatically confer jurisdiction on the appellate Court to exercise its appellate jurisdiction on the decision of the Lower Court on the substance of the matter which it decided abundanti cautelu. Where the Court of Appeal, as in this case, declines jurisdiction on an appeal but proceeds to hand down a decision on the substance abundanti cautela, no jurisdiction will be conferred on the Supreme Court to consider the merit of that decision if the Supreme Court finds that the Court of Appeal rightly declined jurisdiction on the appeal. The appellate jurisdiction of the Supreme Court to consider the correctness or otherwise of the decision handed down abundanti cautela by the Court below will only be activated if the Supreme Court overrules the Court of Appeal's decision declining jurisdiction on the appeal.

It is trite that an issue, not raised at the Court below cannot be raised for the first time on appeal. It is now trite that any issue not distilled from any ground of appeal goes to no issue. See ETA VS DAZIE (2013) 9 NWLR (Pt.1359) page 248 at 262 paragraph E-F; OSINUPEBI VS SAIBU (1982) 7 SC 104; ALI VS CBN (1997) 4 NWLR (Pt.498) 192.

Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 Indeed, this Court, recently stamped its infallible authority on this current posture. Abe V Unilorin (2013) LPELR-20643; (2013) 16 NWLR (Pt 1379) 183.

An Appellant will also not be allowed to raise on Appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced Where, however, such a fresh point or question involves a substantial point of law, substantial or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate Court will allow the question to be raised and the point taken to prevent a miscarriage of justice.

It is also an elementary principle that an appellate Court will not allow a Party to raise a fresh issue on appeal that was not raised at the trial Court, except where such an issue involves substantial points of law, substantive or procedural, and this must be allowed to prevent an obvious miscarriage of justice – see Okenwa V. Military Governor, Imo State (1996) 2 NWLR (Pt.455) 394 at 407 SC, wherein this Court per Iguh, JSC, further elucidated as follows
An appellate Court must not allow an Appellant to jettison before it, the question on which the Parties joined issue and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the Appellant to commence an entirety new case before the appellate Court. In the same vein, an appellate Court before which a new point is sought to be canvassed will refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the Parties in the Court below.

In other words, the determination of a preliminary objection to the hearing of an Appeal, is not a hearing of the Appeal, which can only be considered based on issues for determination distilled from grounds of Appeal – Sanusi V Ayoola (1992) 9 NWLR (Pt. 265) 275.

The learned Counsel for the Respondents submit relying on PAM v. GWOM (supra) that the instant grounds 2, 3, and 6 are on all fours with the grounds of Appeal adjudged competent in PAM v. GWOM (supra), and further, and I agree that proof of ownership of land in accordance with the principles of customary law is an incidence of customary law. Any ground of Appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is Appealable "as of right" under Section 245(1) of the Constitution

How can a respondent, who is only expected to respond to the appeal, apply to withdraw an appeal he did not file? The appeal certainly does not belong to the respondents. Can the respondents take away something that does not belong to them? By our Rules of Court it is only an appellant who has the right to withdraw or abandon his appeal. Order 8 Rule 6 of the Supreme Court Rules (as amended) provides as follows:
"(1) An appellant may at any time before the appeal is called for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal."

I have to again emphasis that it is only an appellant who initiated an appeal that can legally withdraw same while the role of a respondent in appeal is to defend the judgment on appeal except where he files a cross appeal or a Respondent Notice which is not the case here.

I have to again emphasis that it is only an appellant who initiated an appeal that can legally withdraw same while the role of a respondent in appeal is to defend the judgment on appeal except where he files a cross appeal or a Respondent Notice which is not the case here.

A party's right to appeal can be refused if it is brought contrary to extant provisions of the Constitution. This appeal was filed in accordance with clear provisions of the Constitution in the name of P.D.P.

Section 233 (1) of the Constitution provides that the Supreme Court shall, to the exclusion of any other Court hear and determine appeals from the Court of Appeal.
Indeed in Enterprises v. A-G Kaduna (supra) this Court, per Oputa, JSC, on the right of appeal said:
"It is the glory, happiness and pride of our various Constitutions, that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved he had another Court to which he can resort for relief. For this purpose the law furnishes him the right of appeal as of right."
A party dissatisfied with a judgment given against him has a right of appeal to the Court of Appeal, and if still not satisfied with the judgment of the Court of Appeal, a final appeal to the top Court. Any attempt to stop or deprive an aggrieved party his right of appeal would be unconstitutional in that he would be denied his right of appeal and fair hearing contrary to Sections 36 and 233 (1) of the Constitution.

The effect of the failure of the parties to appeal against these specific findings of fact/by the trial Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULLAHI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140; OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342. These findings, as the Court below, on the authority of STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY {2006} 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135, held, are deemed to be correct, binding and conclusive.

This position restates the settled position of the law that the legal consequence of failure to appeal against any finding, holding or decision of a Court is that the parties to the case have accepted it as correct and binding upon them. On this side of the judicial structure, the law is settled that a party is stopped by his failure to appeal against an adverse finding of a fact relevant to the issue. See ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) 18 NWLR (Pt. 1066) 319 (2007) 2 S.C 48 Per Ogbuagu, J.S.C. (P. 68. para. F)

It needs be said as first shot that before this Court can invoke Section 22 of the Supreme Court Act to entertain any matter like the Court of first instance or Court below there must be a proper appeal before the Court. The provision is not devised to revive dead issues. Also where the Court below lacks jurisdiction then the Supreme Court is without jurisdiction to do anything else and the invocation of Section 22 of the Supreme Court Act does not arise. SeePPA v INEC (2012) 13 NWLR (Pt. 1317) 215 at 245 per Adekeye JSC; Hassan v Aliyu (2010) 17 NWLR (Pt. 1223) 547.

An appeal which has been withdrawn under Order 11 of the Court of Appeal Rules, 2007, whether with or without an order of the Court of Appeal, shall be deemed to have been dismissed. The only remedy available to the respondent complaining that the notice of withdrawal is ineffectual ordinarily should have been by a way of appeal. This is because a valid notice of withdrawal of appeal, filed in the Registry of the Court of Appeal, effectively puts an end to the appeal, and the appeal in law, is deemed to have been dismissed.

OYEYEMI(RTD) &

The law is settled that an appeal could be withdrawn by filing a notice of intention to discontinue or withdraw.
See the cases of DALFAM (NIG.) LTD V. OKAKU INTERNATIONAL LTD (2001) 15 NWLR (Pt. 735) 203 at 250, LENAS FIBREGLASS LTD. VS FURTODO (1997) 8 NWLR (Pt. 504) 220 at 231, ERONINI V. IHENKO, (1989) 2 NWLR (Pt.101) 56 at 63; (1989) 20 N.S.C.C. 503 at 520. UNIVERSITY OF LAGOS V. AIGORO (1985) 1 S.C. 265 at 271 and UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 S.C. 295.

OYEYEMI(RTD) &

Following on the heels of this principle is another related or derivative principle to the effect that a finding or decision of a trial Court, whether on an issue of fact or law, that is not challenged on appeal to the Court of Appeal, such decision or finding, rightly or wrongly, stands and must not be disturbed. See NWABUEZE v. OKOYE (1999) 4 NWLR (pt.91) 664; OSHODI v. EYIFUEM (2000) 13 NWLR (pt.684) 332; TIMITIMI v. AMABEBE (1953) 14 WACA 374 at 377.

The law is settled beyond any doubt that grounds of appeal must arise and be related to the decision against which appeal lies, and should constitute a challenge to the ratio of the decision. Any ground of appeal that formulated outside the decision appealed against is incompetent and ought to be discountenanced. See Saraki V. Kotoye (Supra); Egbe V Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590.

The law is settled that it is not every error or slip that will result in the reversal of a decision on appeal. The appellate Court will only intervene and reverse the decision on appeal when the error, mistake or slip is substantial in that it has occasioned a miscarriage of justice. See ABUBAKAR v. B.O. & A. P. LTD.(2007) 2 SC 48; (2007) 18 NWLR (Pt.1066) 319; UNITY BANK PLC. v. BOUARI (2008) 2 – 3 SC (Pt.II) 1; (2008) 7 NWLR (Pt.1036) 372.

To succeed in an appeal, the onus is squarely on the appellant to satisfy the appellate Court that the decision or judgment he had appealed was wrong. He discharges this onus by showing in what respects the decision appealed was wrong. He has to discharge this onus because the decision appealed is presumed, under Section 168(1) of the Evidence Act, 2004, to be valid and subsisting until set aside. If the appellant fails to discharge this burden his appeal is bound to be dismissed.See OBODOv.OGBA (1987) 2 NWLR (Pt.54) 1; OGOLOGO v. UCHE (2005) 14 NWLR (Pt.945) 226 at 246.

In respect to the other area in this preliminary objection which has to do with the competency of Grounds 2 and 3 of the appellants' Notice of Appeal since according to the Objectors were complaints against an obiter dictum of the Court below and not against the ratio decidendi of the lower Court and so this Court is urged to strike them out. It is true and has become trite in law that appeal does not arise out of an obiter dictum or side comment or as in local parlance 'side talk' but there is an exception to that general rule which is that where the ratio decidendi and the obiter dictum are so intertwined and almost inseparable the appeal on the point in issue will be valid. What this translates to is that an appellate Court should not rush to striking out grounds of appeal and I daresay that issues emanating therefrom without caution. As the Court could unwittingly strike out would look like an obiter dictum which would turn round to be not the ratio decidendi but a side comment that is germane and cannot be easily dislodged from the ratio decidendi. A situation as I am trying to put across presented in the case of N.N.P.C. v. Abdulrahman (2006) NWLR (Pt. 993) 202 at 207, Court of Appeal decision which stated thus:- "6. On mode of commencement of action challenging termination of employment proceedings for the challenge of termination of employment must be begun normally by the issue of a Writ of Summons within the period prescribed by the relevant statute. In the instant case, apart from the fact that the action was statute barred, it was also commenced by means of an Originating Summons instead of by a Writ of Summons. This was wrong in law and the trial Court should have struck out the action on that basis. (Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649; Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) referred to). P.217 para. E-G)." (Underlining mine). See also Tobi, JSC in the case of Buhari & Ors v...

"A party to proceedings cannot appeal a decision arrived there at which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstance can it be argued that a party to a proceeding who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance Akinbiyi v. Adelabu (1956) SCNLR 109 where it was recognized that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right".

Is the Appellant counting on this Court to assess the evidence, including to ascertain if he was threatened, mercilessly beaten and had a stick of broom gruesomely inserted into his penis and torturously twisted to cause him excruciating pain until he yielded and signed the confessional statement? I think not as this Court only entertains appeals against decisions of the Court below; and not directly against that of a trial Court – Akibu & Ors V. Oduntan (2000) LPELR-336(SC). The 1999 Constitution did not make provision for appeals to go directly from the High Court to the Supreme Court – A-G., Oyo State & Anor V. Fairlakes Hotel (1988) LPELR–24926(SC).

This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of Omisade V. The Queen (1964) NSCC (Vol.3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows –
If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand. The law was aptly put by Lord Tucker in the case of R. v. Aladesuru & Ors 39 C.A.R. 184, which was an appeal from Nigeria.
The learned Lord at p. 185 of the Report said:
It will be observed that the language of the WACA Ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re-hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from reviewing the evidence and making its own valuation.

To lay down some ground rules for determining this Appeal, I must point out that it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the judgment of the trial Court is correct – Ibator V. Barakuro & Ors (2007) 9 NWLR (Pt.1040) 475 SC.
See also Ibori V. Agbi (2004) 6 NWLR (Pt.868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows-
The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void –
– The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court.

I am fortified in this by the decision of the Supreme Court in Atiku V State (2010) 9 NWLR (Pt. 1199) 241 at 264where it held that in a criminal appeal, the defect of proliferation of issues can be overlooked for the purpose of determining the real complaint in the grounds of appeal.

It is the practice that whilst two or more grounds of appeal may generate one issue for determination, an Appellant is not permitted to formulate more than one issue from a Ground of Appeal. Proliferation of issues has therefore in countless judicial pronouncements been frowned upon. Such proliferation, rather than aid in the understanding of the issues raised in the Appeal, serves to confound them. The reason is obvious. Grounds of appeal complain on specific aspects in the Judgment of the Court, but issues deal with a number or agglomeration of grounds. Thus, proliferation of issues constitutes an error which has continually been deprecated by appellate Courts. See Amodu V The Commandant, Police College, Maiduguri (2009) All FWLR (Pt. 488) 195; Mercantile Bank of Nigeria Plc V Nwobodo (2005) 14 NWLR (Pt. 945) 379; Nnonye V Anyichie (1999) LPELR-5449(CA) 12-15, paras G-F per Tobi, JCA (as he then was); & Agbetoba V Lagos State Executive Council(1991) 15 NWLR (Pt. 188) 664.
In Agu V Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 401, Karibi-Whyte, JSC said
"The Court has counseled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds relied upon, but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues.
Thus, one ground can never properly raise more than one issue for determination.

The foregoing finding of the lower Court is unassailable. Learned appellant's counsel must be reminded that a Court's finding on appeal is only set aside where same is found to be perverse. An appellate Court, learned counsel is to further appreciate, adjudges a decision appealed against perverse if it neither draws from the evidence on record nor upon correct application of some principle. See Adimora V. Ajugo (1988) 3 NWLR (Pt 80) 1, Clifford Osuji V. Nkemjika Ekeocha (2009) LPELR-2816 (SC) and Raphael Ude V. State LPELR-40441 (SC).

Because an appeal is not an inception of a new case, but a continuation of the dispute inter partes from the trial Court; no new issues are raised or permitted and no fresh evidence are taken, without leave of Court. See OREDOYIN v. AROWOLO (1989) 4 NWLR (pt.114) 172 at 211.

It is only an appellant that can withdraw an appeal,

While Order 8 Rule 6(1) of the Supreme Court Rules state that:
"An appellant may at any time before appeal is the called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal." and he does this before the hearing of the appeal by filing a notice of Motion, served on the respondent seeking order of withdrawal of appeal on the ground that he, the appellant no longer desires to prosecute the appeal. Such an application is served on the adverse party and filed with the Registrar of Court.

A party's right to appeal can be refused if it is brought contrary to extant provisions of the Constitution. This appeal was filed in accordance with clear provisions of the Constitution in the name of P.D.P.

He submitted that the right to appeal is an offshoot of a party's right to fair hearing. He urged the Court to refuse ground 1.
Section 233 (1) of the Constitution provides that the Supreme Court shall, to the exclusion of any other Court hear and determine appeals from the Court of Appeal.
Indeed in Enterprises v. A-G Kaduna (supra) this Court, per Oputa, JSC, on the right of appeal said:
"It is the glory, happiness and pride of our various Constitutions, that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved he had another Court to which he can resort for relief. For this purpose the law furnishes him the right of appeal as of right."
A party dissatisfied with a judgment given against him has a right of appeal to the Court of Appeal, and if still not satisfied with the judgment of the Court of Appeal, a final appeal to the top Court. Any attempt to stop or deprive an aggrieved party his right of appeal would be unconstitutional in that he would be denied his right of appeal and fair hearing contrary to Sections 36 and 233 (1) of the Constitution.

Furthermore, on the issue of filing of the Notice of Appeal at the Court below instead of the trial Court, which meant non compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See; U.T.C Ltd. vs. Chief Pamotei (1989) 2 NWLR (Pt.103) 244 at 296 where this Court, per Belgore, JSC (as he then was later the CJN) opined as follows: "Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not defeat justice. The rules are therefore aids to the Court. For Court to read Rules in the absolute without recourse to the justice of the cause, to my mind, that will be making the Courts slavish to the Rules. This clearly is not the reasons of the Rules of Courts." See also, Olufeagba & Ors Vs. Abdur-Raheem & Ors (2009) 19 NWLR (Pt.1173 384; (2009) 11-12 (Pt.1) SCM 125; (2009) LPELR – 2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam Vs. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:- "However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us, We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us." In Odom & Ors Vs. PDP & Ors (2015) 2 SCN 209 at 226, this Court, per Dattijo Muhammad, JSC, in considering similar...

It has long been settled that a finding of fact not appealed against cannot be disputed, Commerce Assurance v Alli [1992] 3 NWLR (pt 232) 710. In effect, the correctness of such findings cannot be questioned, Yesufu v. Kupper International [1996] 5 NWLR (pt 446) 17; PN Udoh Trading Co. Ltd. v Abere [2001] 11 NWLR (pt 723) 114, 146.

It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it stuck out yet should still be struck out. See; Emespo J Continental Ltd Vs. Corona Shifah – Rtsgesellschaft & Ors (2006) 11 NWLR (pt.991) 365: (2006) 8-9 SCM 149; (2006) 5 SC (Pt. 1) 19; (2006) 26 NSC QR 1144; Bisiriyu Akinlagun & Ors Vs. Taiwo Oshoboja & Anor (2006) 12 NWLR (Pt.993); (2006) 7 SCM 49, (2006) 5 SC (Pt.11) 105; Maobison Inter Link Ass Ltd vs UTC (Nig) Plc (2013) 9 NWLR (Pt.1359) 197; (2013) 72 SCM 112; (2013) 3-4 Sc (Pt.1) 109; (2013) 4 SCNJ 137.

An appeal is an invitation to a higher Court to review a decision of a lower Court whether on the proper consideration of facts before it, and the law, that Court arrived at a correct decision – See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172 @ 211.

This Court was urged to discountenance his arguments as a party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial Court PDP V. INEC [2015] 2 WRN 1, Osho V. Foreign Finance Corp. & Anor [1991] 4 NWLR (Pt. 184) 157 and American Cyanamid Co. V. Vitality Pharmaceuticals [1991] 2 NWLR (Pt 171)15 cited.

Once a certificate of non- compliance has been issued, the Court must dismiss the appeal. This Court in Chief John Oyegun v. Chief Francis Arthur Nzeribe (2010) 7 NWLR (Pt.1194) 577 held per Adekeye JSC at p.593 that –
"The provisions of the Rules make it emphatic that prima facie they are meant to be obeyed and followed. In the circumstance of this case, the Rules of Court Order 3 Rule 20(1) directs that an appeal shall be dismissed in the event of non-compliance with the conditions of appeal. The reasons cannot be farfetched as non – compliance renders the appeal incompetent."

CHAIRMAN, CHIEF EXECUTIVE NATIONAL DRUG LAW ENFORCEMENT AGENCY (NDLEA)

This is the rationale for the prescription that any issue not raised in the lower Court cannot be canvassed on appeal without leave of Court. In effect, any ground of appeal that raises any such new issue, without leave, is incompetent, Akpene v. Barclays Bank (1977) 1 SC 47; Fadare v. A.-G., Oyo State [1982] 4 SC 1, 16 -17; Uor v. Loko[1988] 2 NWLR (pt. 77) 430; Araka v. Ejeagwu [2000] 15 NWLR (pt. 692) 684, 709; Tahir v. Udeagbala Holdings Ltd[2004] 2 NWLR (pt 857) 438, 447. Failure to obtain leave makes the said issue incompetent, Ojiogu v Ojiogu and Anor [2010] 9 NWLR (pt. 1198) 1; Niger Progress Ltd v N. E. L. Corp [1989] 3 NWLR (Pt.107) 68. Like my Lord, in the leading judgment, I too shall discountenance this issue. It is hereby struck out.

This contribution is limited only to the resolution of the argument in the appellant's brief on the third issue, paragraph 4.3.2 of the said brief. As shown in the leading judgment, the lower Court did not broach the question of the competence vel non of the suit.
In effect therefore, the submissions of the appellant's counsel on this issue in this appeal is a surreptitious attempt to introduce a new issue in this appeal without prior leave of Court. However, this is improper. As it is well-known, an appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a party. Babalola v The State [1989] 4 NWLR (Pt. 115) 264, 294

The law is trite that a conclusion or finding not appealed is deemed correct and acceptable to all the parties. See BIARIKO v. EDEH-OGWUILE (2001) 4 SC (pt.2) 96; IYOHO v. EFFIONG (2007) 11 NWLR

AMADI V. ATTORNEY- GENERAL OF IMO STATE LGC(10/2/2017)E

I have also perused the judgment of the Court below and I have not seen where issue of competence or otherwise of the suit was discussed and/or ruled or decided upon. At best, this is a new issue which the leave of this Court ought to have been sought and obtained. Failure to obtain leave to argue this issue makes it incompetent. See Niger Progress Ltd v North East Line Corporation (1989) 3 NWLR (Pt. 107) 68, Chukwuemeka N. Ojiogu v Leonard Ojiogu & Anor (2010) 9 NWLR (Pt. 1198) P 1. Thus, as the Court below did not discuss the issue of the competence of the suit nor rule on it and there being no leave sought and obtained to argue the issue in this Court, it is hereby discountenanced and struck out.

The point is fairly settled in quite a number of decisions of this Court that arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped together with those of competent issues for determination. Where this is done as in this case, it will not be the business of the Court to sift the chaff from the grains, an exercise that would clearly involve arguments in respect of the valid issues from the invalid ones. As was held by this Court in Ikpeazu v Otti & Ors (2016) LPELR-40055 (SC), such an exercise may involve the Court descending into the arena of dispute which will often becloud the judgment of the Court. See also Korede v Adedokun (2001) 1 NWLR (pt 736) 483 at 499, CPC & Anor v Ombugadu & Anor (2013) LPELR-21007 (SC), Khali v Yar'Adua (2003) 16 NWLR (Pt. 847) 446 at 481, James Afolabi v The State (2016) LPELR-40300 (SC), Geo-source Nig. Ltd v Biaragbara(1997) 5 NWLR (Pt. 506) 607.

Having regard to these contending divergent positions on either side, one is reminded that it is a rudimentary principle of procedure that parties have to be consistent in their case at the trial Court on Appeal to the Court of Appeal and up to the Apex Court. No party is allowed to approbate and reprobate over the same issue. This consistency has to be from first instance to the very end as an Appeal does not change the nature or structure of the dispute between parties. This is because an appeal does not lead to a discolouration of the matter at the beginning as the complaint remains what it is at every stage up to the conclusion of the appeal at the trial Court or Court of Appeal or Supreme Court. See Suberu v State (2010) 8 NWLR (Pt.1197) 586 at 618; Akpa v Itodo (1997) 5 NWLR (Pt.506) 589; Ngige v Obi (2006) 14 NWLR (Pt.999) 1, Oredoyin v Arowolo (1989) 4 NWLR (Pt.114) 172; Ajide v Kelani (1985) 3 NWLR (Pt.12) 248; Agidigbi v Agidigbi & 2 Ors (1996) 6 NWLR (Pt.454) 300.

The dismissal of the appeal without hearing same on the merits amounts to lack of fair hearing and has thus occasioned a miscarriage of justice to the appellant. The appeal should therefore be allowed in part and the order of dismissal set aside. In its place the appeal is remitted to the Court below for hearing based on the briefs filed by the parties.

KUMAI BAYANG AKA'AHS, J.S.C.: My learned brother, Ariwoola JSC, made available to me his judgment which I read before now. I agree with his reasoning and conclusion that when an appeal is found to be incompetent for any reason, it cannot be dismissed but struck out since it did not proceed to hearing on the merits. In the instant case, the reason given by the lower Court in dismissing the appeal was that there was lack of clear, precise, plain and unambiguous brief of argument filed by any particular appellant in the appeal and the appeal was adjudged as incompetent and unmeritorious. A brief cannot be deemed to be unmeritorious if the merits of the appeal based on the arguments advanced are not considered by the Court. The best the Court can do in the circumstance is to strike out the brief and allow the party affected to file a more coherent brief based on the notice of appeal filed. If a brief is inelegantly drafted or defective, the Court should try to make the best out of it to decide the appeal on the merits instead of striking out the appeal. See: Philip Obiora v. Paul Osele (1989) 1 NWLR (Pt. 97) 276; Chief Thomas Ekpemupolo & Ors v. Gowin Edremoda & Ors (2009) 8 NWLR (Pt. 1142) 166, Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83.

Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reason, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned.

In the same vein, by the same Rules of the Court of Appeal, an appeal may be dismissed for want of prosecution where the appellant fails to file his brief of argument within time and extension of time was not granted so to do. See; Akanke Olowu & Ors vs. Amudatu Abolore & Anor (1993) 5 NWLR (Pt.293) 255-384; (1993) 6 SCNJ 1; (1993) LPELR 2603; Shehu Babayagi vs. Alhaji Ndasadu Bida (1998) LPELR – 699.

However, when an appeal is dismissed by a Court of appeal, pursuant to its Rules, that decision is a final decision and the Court becomes functus officio and cannot relist or re-enter the appeal on its cause list. See; First Bank of Nigeria Plc vs. T. S. A Industries Ltd (2010) 15 NWLR (Pt. 1216) 247

Ordinarily, it is best to resolve the issues the appellant requires that his appeal be determined upon. After all, the appellant is the party aggrieved by the decision being appealed against. The Court however may, where the justice of the case demands, proceed to determine an appeal on the basis of the issues distilled by the respondent or still, those the Court formulated and preferred in determining the real questions in controversy between the parties. See;Musa Sha (Jnr) & Anor V. Da Ray Kwan & 4 Ors (2000) 8 NWLR (Pt. 620) 685 and African International Bank Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR-9710 (SC).

It is learned senior counsel's contention that the appeal is incompetent for failure of the appellants to obtain leave to appeal either from this Court or from the Court below. It is settled law that failure to obtain leave to appeal where leave is required is fatal to the appeal. The leave of Court is a condition precedent to the jurisdiction of the appellate Court to entertain the appeal. Failure to obtain leave where necessary renders the grounds of appeal requiring such leave and any issues formulated therefrom incompetent. See: Oshatoba Vs Olujitan (2000) 5 NWLR (Pt. 655) 159; Metal Construction...... Vs Migliore (1990) 1 NWLR (Pt. 126) 99; Ikweki Vs Ebele (2005) 11 NWLR (Pt. 936) 397; Tilbury Construction Ltd. Vs Ogunniyi (1988) 2 NWLR (Pt. 74) 64.
By virtue of Section 233(2)(a) of the 1999 Constitution, an appellant can appeal as of right from the Court of Appeal to the Supreme Court where the ground of appeal is a ground of law alone in respect of decisions in any civil or criminal proceedings before the Court of Appeal. By virtue of Section 233(3) of the 1999 Constitution, on the other hand, an appeal to this Court on facts alone or on mixed law and facts can only be by leave of this Court or the Court below. See: KTP Ltd. Vs G & H (Nig.) Ltd. (2005) 13 NWLR (Pt. 943) 680; Maigoro Vs Garba (1999) 10 NWLR (pt. 624) 555 @ 568; CBN Vs Okojie (2002) 8 NWLR (Pt. 768) 48; Abubakar Vs Dankwambo (2015) 18 NWLR (Pt. 1491) 213 @ 234-235.

Section 233(2) of the 1999 Constitution provides for the circumstances in which appeals to this Court from decisions of the Court of Appeal are as of right. Section 233(2)(a) provides for appeals as of right where the ground of appeal in any civil or criminal proceeding involves questions of law alone. Thus where questions of facts or of mixed law and facts are in issue, leave must be sought and obtained. See: Abubakar Vs Dankwambo(2015) 18 NWLR (Pt.1491) 213 @ 234 – 235; Okwuagbala Vs lkwueme (2010) 19 NWLR (pt.1226) 54; Opuiyo Vs Omoniwari (2007) 16 NWLR (pt.1060) 415.

It is sacrosanct that the appellants/applicants constitutional right of appeal against the decision of the lower Court refusing them leave to appeal as interested party, remains extant and cannot be waived or taken away from them. The following authorities are supportive on the principle of fair hearing:- MFA v. Inongha (2014) 4 NWLR (pt. 1397) 343 at 375-376; 7-up Bottling Co. v. Abiola & Sons (Nig) Ltd (1995) 3 SCNJ 37 (1995) 3 NWLR (Pt. 383) 257; Deduwa v. Okorodudu (1976) 1 NMLR 236 at 246; Tsokwa Motors (Nig) Ltd v. U.B.A. Plc (2008) All FWLR (Pt. 403) 124 at 1255, (2008) 2 NWLR (Pt. 1071) 347. Also in the recent case of Abubakar Audu v. FRN (2014) 53 NSCQR 456 at 469, (2013) 5 NWLR (Pt. 1348) 397 at 401-411, this Court reiterated thus amongst others:-
the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22″

It is pertinent to recapitulate that the appellants/applicants were denied leave to appeal as a party interested by the lower Court; the poser question is, whether such persons can rightly exercise their constitutional right of appeal against the decision of the Court of Appeal refusing them leave to appeal? It is elementary to say that the ruling of the lower Court refusing the appellants/applicants leave to appeal is a decision of the Court within the meaning of Section 318(1) of the Constitution 1999 which is therefore appealable. See In Re: Shyllon (1994) 6 NWLR (Pt. 353) 735 at 751-752; Rabiu v. State (1980) 8-11 SC (Reprint) 85; and Tomtec (Nig) Ltd. V. F.H.A. (2009) 18 NWLR (Pt. 1173) 358 at 375-376. The refusal of leave to appeal is, without more, a denial of right to fair hearing.

It will defeat the cause of justice to fetter the right of access to the Court by way of declining to grant an application of this nature. The principle had long been laid down that the path to tread should be that of justice as against technicality. Such application should not be opposed for the sake of either doing so or because the opponent feels threatened. The overriding consideration must always be justice and fairness. The principle has been well entrenched affirmatively by this Court in the following cases of: Obikoya v. Wema Bank Plc (1989) 1 NWLR (Pt. 96) 157 at 179 and Holman Brothers (Nig.) Ltd v. Kigo (Nig) Ltd(1980) 8-11 SC 43 at 62 and 63 where it was held that:
an application is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal.--
-- Having regard to the grounds of appeal exhibited and the facts disclosed in the affidavit evidence, - the Court of Appeal was in error to refuse the application and prevent a hearing of the appeal.

The failure of an appellant to seek the leave of Court to argue grounds of mixed law and facts which are subscribed on the Notice of Appeal touches or robs the appellate Court of its jurisdiction to consider and pronounce on such grounds as they are deemed incompetent before the Court. For instance, in the case of Akiwiwu Motors Ltd v. Sangonuga (1984) ANLR (Reprint) 309 this Court had this to say at page 311:-
This Court has, in a series of cases, decided that where grounds of appeal involve questions of facts alone or questions of mixed law and facts, leave of the Court of Appeal or the Supreme Court must be obtained to make the appeal competent and invest the Supreme Court with jurisdiction to hear the appeal. See Section 213(3) (sic) Constitution 1979, Ojeme v. Momodu III (1983) 3 SC 173, Oke v. Eke (1982) 12 SC 228 and Akpasubi v. Unweni(1982) II SC 132.

It is warned in the earlier case of Magnusson v. Koiki (supra) that an Appeal Court should refrain from delving into the merit of the substantive question before it, at an interlocutory stage. At page 298 for instance, this Court said:-
In an appeal arising from an interlocutory decision, care should be taken by an appellate Court to avoid making an observation which may appear to re-judge the issues yet to be determined in the substantive appeal.

It is also the requirement of the law that an appellant should seek the leave of the Court in instances where the notice of Appeal contains grounds of mixed law and fact; the leave of the Court serves as pre-condition upon which concerned grounds are properly filed before the appellate Court, failure of which the defective grounds may be struck out. See this Court in the case of Abubakar v. Dankwambo (supra) at 234-235 wherein it was held that:-
Where leave, which means permission is a pre-condition before an appellant can file a notice of appeal, containing grounds of mixed law and fact, an appellant who files a notice of appeal without satisfying or obtaining that pre-condition would have his process thrown out. In the instant case, the appellant having not obtained leave of the Court of Appeal was caught by the provisions of Section 242 of the Constitution and grounds, 1, 2, 4, 5 and 6 in the notice of Appeal were correctly struck out by the Court of Appeal.

Section 233(2) (e) (iv) of the Constitution is also clear that an appeal shall be from decisions of the Court of Appeal to this Court as of right. The appellants/applicants have the constitutional right to appeal against the decision of the lower Court made against them. See PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205 at 273, 240.This Court while putting succinctly the issue of right of appeal had this to say in the case of Ugba v. Suswan(2014) 14 NWLR (Pt. 1427) 264 at 340-341.
It is the glory, happiness and pride of Nigerias various Constitutions that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved, he had another Court to which he can resort to for relief. For this purpose, the law furnishes him with the right of appeal as of right. If there is no appeal at all possible the system would be intolerable. The doors of the appellate Courts have to be kept open if rights and freedom are to be preserved. (Emphasis provided).
See also the cases of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168 at 183-184 and Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) at 178 where it was held by this Court that a party should never be denied the right of appeal if he satisfies the conditions for appeal. See again Katol Inv. Ltd v. UACN P.D. Co. Plc (2011) 16 NWLR (Pt. 1273) 211 at 223.

As rightly submitted by the learned senior counsel for the appellants/applicants, the law is well settled that one competent ground of law alone is enough to sustain an appeal to this Court. See Nwaolisah v. Nwabufor (2011) 14 NWLR (Pt. 1268) 600 at 625 also Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 213 at 244 decisions of this Court.

It is trite law that in an application of this nature, an applicant for leave to appeal must show by good and substantial reason why the appeal ought to be heard and this must be exhibited by a Notice of appeal showing arguable grounds of appeal if leave is granted. The grant of leave is not a matter of course as rightly submitted by the respondents counsel. It is also not necessary that the appeal should have merit, but the question is whether there is a right and reason to appeal.

Furthermore where a Court makes a mistake of law in its decision, that mistake can be corrected only through appeal except where the judgment is given without jurisdiction. See Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 77.

Accordingly, an appeal dismissed under Order 6 Rule 3(2), as the instant appeal, cannot be relisted. The dismissal order is final: ALLI v. AYINDE (2010) ALL F.W.L.R (Pt. 540) 1315 at 1358; KRAUS THOMPSON ORGANISATION v. N.I.P.S.S. (2004) 17 N.W.L.R. (Pt.901) 44.

This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of OMISADE VS THE QUEEN (1964) NSCC (Vol. 3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows:
"If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand.
The law was aptly put by Lord Tucker in the case of R. VS ALADESURU & ORS 39 C.A.R 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said:
"It will be observed that the language of the WACA ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from previewing the evidence and making its own valuation."

To lay down some ground rules for determining this Appeal, I must point out that it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the Judgment of the trial Court is correct – IBATOR VS BARAKURO & ORS. (2007) 9 NWLR (Pt.1040) 475 SC.
See also IBORI VS AGBI (2004) 6 NWLR (Pt. 868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows:
The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void. The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court."

The reason why the Courts have been strict in enforcing the provision of Order 11 Rule 5 of the Court of Appeal Rules or its equivalent in the Rules of this Court when a notice of withdrawal of appeal is filed, as stated by my learned brother, I.T. Muhammad, JSC in Young Shall Grow Motors Ltd. Vs Okonkwo (supra) @ 541 – 542 E – C, is"to prevent the uncertainty with which the respondent may be confronted or on the other hand the abuse to which this procedure could be subjected if an appellant after the withdrawal of the appeal shall be at liberty to refile his appeal." In his contribution Dahiru Musdapher, JSC (as he then was) at 546 F-G (Supra) held, It is trite law that when an appeal is set for hearing after briefs of argument are filed and the appellant withdraws the appeal, the striking out of the appeal amounts to the dismissal of the appeal.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.
See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. PER TOBI, J.C.A.

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.
I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.
The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. PER GEORGEWILL, J.C.A.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.
By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.
This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1 .
PER ABIRU, J.C.A.

A judgment of a Court should fundamentally contain a brief statement of the type of action, setting out the claim or offence in full; a review of the evidence led; appraisal and evaluation of such evidence; making findings of fact therefrom, consideration of the legal submission made; and conclusion. OYEDELE V. STATE (2019) LPELR – 47576 (SC). From records, the Court below did not comply with the above requirements. The evidence available to the Court, both oral and documentary were not appraised. The evidence was not evaluated.
After the Court below entered a plea of not guilty, and tried the Appellant, it failed to indicate upon what grounds it convicted the Appellant and sentenced him to death. I wonder why the Court below could write a four-sentence remark in its judgment of the 18th of February, 2013 – pages 263 – 300 . PER PEMU, J.C.A.

In appellate practice, it is trite that issues for determination must be clearly related to and be founded on the specific findings or ratio decidendi in the judgment on appeal. In other words, the issues for determination must be distilled from the Grounds of Appeal which in turn must also be predicated upon the ratio(s) decidendi of the particular decision complained against. See Archinga vs. Attorney General of Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1, Shipcare Nig. Ltd Owners of the M/T African Hyathinth vs. The Owner or the M/V Fortuno (2011) 7 NWLR (Pt. 1246) 205, Shettima & Anor vs.
Goni & Ors (2011) LPELR – 417 (SC); Musaconi Ltd vs. Aspinall (2013) LPELR – 20745 (SC); Nze vs. Aribe (2016) LPELR – 40617 (CA). PER GAFAI, J.C.A.

The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts. In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein.
A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts. PER BAYERO, J.C.A.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.
See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. PER TOBI, J.C.A.

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.
I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.
The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. PER GEORGEWILL, J.C.A.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.
By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.
This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1 .
PER ABIRU, J.C.A.

A judgment of a Court should fundamentally contain a brief statement of the type of action, setting out the claim or offence in full; a review of the evidence led; appraisal and evaluation of such evidence; making findings of fact therefrom, consideration of the legal submission made; and conclusion. OYEDELE V. STATE (2019) LPELR – 47576 (SC). From records, the Court below did not comply with the above requirements. The evidence available to the Court, both oral and documentary were not appraised. The evidence was not evaluated.
After the Court below entered a plea of not guilty, and tried the Appellant, it failed to indicate upon what grounds it convicted the Appellant and sentenced him to death. I wonder why the Court below could write a four-sentence remark in its judgment of the 18th of February, 2013 – pages 263 – 300 . PER PEMU, J.C.A.

In appellate practice, it is trite that issues for determination must be clearly related to and be founded on the specific findings or ratio decidendi in the judgment on appeal. In other words, the issues for determination must be distilled from the Grounds of Appeal which in turn must also be predicated upon the ratio(s) decidendi of the particular decision complained against. See Archinga vs. Attorney General of Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1, Shipcare Nig. Ltd Owners of the M/T African Hyathinth vs. The Owner or the M/V Fortuno (2011) 7 NWLR (Pt. 1246) 205, Shettima & Anor vs.
Goni & Ors (2011) LPELR – 417 (SC); Musaconi Ltd vs. Aspinall (2013) LPELR – 20745 (SC); Nze vs. Aribe (2016) LPELR – 40617 (CA). PER GAFAI, J.C.A.

The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts. In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein.
A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts. PER BAYERO, J.C.A.

Now, the law on when an appeal from the decision of the lower Court to this Court requires prior leave of Court as a condition precedent for its validity and competence as prescribed under the provisions of Section 233(3) of the Constitution (as amended) and when such an appeal does not require or need leave of Court in situations set out in the provisions of Section 233(2), is firmly settled and trite.
Briefly, an appeal in which the grounds raise or involve questions of law alone, is one as of right and so does not need or require prior leave of Court to be brought or filed by virtue of the provisions in Section 233(2).
An appeal in which the grounds do not fall or are not within the situations enumerated in the provisions of Section 233(2), is an appeal which, by the operation of Section 233(3) mandatorily needs or requires prior leave of Court, as a condition precedent, for it to be validly brought or filed and for it to be competent so as to vest the requisite jurisdiction on the Court to adjudicate over it. See Faith Ent. Ltd. v. B.A.S.F. Nig. Ltd. (supra) also, reported in (2010) 4 NWLR (Pt. 1183) 104, Maigoro v. Garba (1999) 7 SCNJ 270 at 279; (1999) 10 NWLR (Pt. 624) 555; Yaro v. Arewa Constr. Co.
Ltd. (2007) 17 NWLR (Pt. 1063) 333; Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415; Ogbolosingha v. B.S.I.E.C. (2015) 6 NWLR (Pt. 1455) 311 MOHAMMED LAWAL GA  111RBA, J.S.C.

The law is settled by an unending line of judicial decisions that an appellate Court cannot interfere with the findings of facts by a trial Court or its belief of witnesses that have not been shown to be perverse because it holds a different view of the evidence. The appellate Court cannot substitute its own views for those of the trial Court, especially where the issue turns on the credibility of witnesses. Once, as in the present case, there is sufficient evidence on record from which the trial Court made its findings of facts, the appellate Court cannot interfere.
This is because the reception and evaluation of evidence are primarily the functions of the trial Court. See for example Efe V The State (1976)11 SC 75, Okonofua V The State (1981) 6-7 SC 1 @ 14, Bamgboye V University of Ilorin (1999) 6SC (Pt.ii) 72 and Fasikun V Oluronke (1999) 1 SC 16. EMMANUEL AKOMAYE AGIM, J.S.C

CRIMINAL APPEALS It has now become trite that criminal appeals from the Court of Appeal to this Court must be filed 30 days from the date of the judgment appealed against. See Okereke Vs. James (2012) 16 NWLR (Pt. 1326) 339, Afribank Nigeria Plc Vs. Akwara (2006) 5 NWLR (Pt. 974) 619. However, Section 27(4) of the Supreme Court Act grants a window for enlargement or extension of time within which an appellant who failed to file within statutory period, may bring his appeal out of time, albeit, subject to the discretion of this Court. JOHN INYANG OKORO, J.S.C
FILING AN APPEAL OUT OF TIME WITHOUT LEAVE Failure to comply with the statutory requirements which are condition precedent to filing a competent appeal is fatal to the appeal, such that this Court cannot entertain the appeal no matter how well argued. This appeal therefore having been filed out of time prescribed by the Act without obtaining the leave of this Court for extension of time, is invalid and deserves to be struck out. JOHN INYANG OKORO, J.S.C

No doubt by Order 2 Rule 12 (1) & (2) of the Supreme Court Rules, this Court has the power to receive fresh evidence on appeal before this Court. It is a discretion that can be exercised favorably in deserving cases to an Applicant in appropriate circumstances. In Obasi v.
Onwuka (1987) 3 NWLR (Pt. 61) pg. 364, this Court held as follows: (i) The fresh evidence sought to be adduced, must be such that could not have, with reasonable diligence been obtained for use at the trial. (ii) The fresh evidence is such that if admitted would have an important, although not necessarily a crucial effect on the case. (iii) The fresh evidence must be such as is apparently credible in the sense that it is capable of being believed.
It need not necessarily be incontrovertible. (iv) The additional evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court. (v) The fresh or additional evidence sought to be introduced must be material and weighty, although not conclusive. HELEN MORONKEJI OGUNWUMIJU, J.S.C

The law is settled that re-evaluation of evidence by an appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the appellate Court can re-evaluate the whole facts and come to an independent decision from the trial Court.
The appellate Court is in a good position to embark on the exercise where for instance: (a) the trial Court’s evaluation of the evidence is clearly perverse; (b) the trial Court drew wrong inferences from the totality of the evidence adduced; and (c) the trial Court applied wrong principles of the law to accepted facts in the case. See Onyekwuluje & Anor Vs. Animashaun & Anor. (2019) LPELR – 46528 (SC), Jibrin vs. FRN (2018) LPELR – 43844 (SC); Ali vs State 2015 LPELR- 24711 (SC).
However, where the evaluation of evidence by the lower Court is found to be properly done, there would be no need for an appellate Court to embark on the exercise. JOHN INYANG OKORO, J.S.C

The effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139-140; OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342; STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135.
ADAMU JAURO, J.S.C.

A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate. See Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (pt 639) 1192, Asaboro & Anor v Pan Ocean Oil Corporation (2017) LPELR – 41558 (SC), Comptroller General of Customs & Ors v Comptroller Gusau (2017) LPELR – 42081 (SC), Akaninwo v Nsirim (2008) All FWLR (pt 410) 610, Oliyide & Sons Ltd v Obafemi Awolowo University (2018) LPELR 43711 (SC). JOHN INYANG OKORO, J.S.C

It is to be noted that sympathy has no place in the hearing of an appeal as there is the need to comply with the rules of the Court. See Asalu v. Dakan (2006) 5SC (Pt. 111) 120 at 129-131. Where there is non-compliance, an exercise of the Court’s power in accordance with the Rules made for doing justice cannot be labelled as improper or unjust. JOHN INYANG OKORO, J.S.C.

It is clear from the wordings of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the leave to appeal is obtained from either the Court of Appeal or this Court. See ENYIBROS FOOD PROCESSING COMPANY (NIG) Ltd & Anor v. N.D.I.C & Anor (2021) LPELR-55330 (SC); STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & Anor (2017) 18 NWLR Pt. 1598 Pg. 431; F.B.N. Plc v. T.S.A INDUSTRIES LTD (2010) 15 NWLR Pt. 1216 Pg. 247; MAIGORO v.
GARBA (1999) 10 NWLR Pt. 624 Pg. 555 . PER HELEN MORONKEJI OGUNWUMIJU, J.S.C

Accordingly, where there are no grounds of appeal, or there are no properly formulated grounds of appeal, an appellate Court will conclude that there is no appeal before it, because one of the vital pre-conditions that must be met before an appellate Court could entertain the appeal, as required by law, is missing. See C.C.B. PLC. V. EKPERI (2007) 3 NWLR (PT. 1022) 493 AT 511 PARAS A-B. PER ADAMU JAURO, J.S.C.

The purpose of a cross-appeal is to correct an error standing in the way of the Respondent in the main appeal. See ANZAKU V. GOV. NASARAWA STATE (2005) 5 NWLR (PT. 919) 448; BUHARI V. INEC (2008) LPELR-814 (SC); UDOM V. MICHELETTI & SONS LTD (1997) LPELR-3310 (SC); ADERIBIGBE & ANOR V. ABIDOYE (2009) LPELR-140 (SC); AWOSIKA V. STATE (2018) LPELR-44351 (SC); EZUKWU V. UKACHUKWU & ANOR (2004) LPELR-1217 (SC). PER ADAMU JAURO, J.S.C.

It is well-known, the right of appeal to this Court neither exists in vacuo nor in nubibus. It [the said right of appeal] is either created by statute or by the Constitution. It thus, does not derive from any other source such as the Court’s inherent jurisdiction or the common law. See W.A.E.C v Adeyanju [2008] 9 NWLR (pt. 1092) 270, Adigun and 2 Ors v The Attorney-General of Oyo State and 18 Ors [1987] 2 NWLR (pt. 56) 197; [1987] 3 SCNJ 118, Ugwuh v Attorney-General East Central State [1975] 6 SC 13, National Bank of Nigeria Ltd v Weide and Co, (Nig,) Ltd and Ors[1996] 10 SCNJ 147.
PER CHIMA CENTUS NWEZE, J.S.C.

In essence, the doctrine is well settled, that where there is sufficient evidence to back up concurrent findings of facts by both lower Courts, such unassailable findings ought not to be disturbed. Of course, the exception to the general rule is where it is so apparent there is a substantial error on the record, thus rendering the entirety of the findings perverse, thereby occasioning some miscarriage of justice or material breach of some fundamental principle of law or procedure.
See OGOALA VS THE STATE (1991) 2 NWLR (Pt. 175) 509; (1991) 3 SCNJ 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 6-9 SC 153. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent.
See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

It is now trite that where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones.
See Ngige v Obi (2006) 14 N.W.L.R (PT.999) lat 165 Para E-H this Court endorsed this exposition of the principle by Per Salami J.C.A in the unreported case of Korede v Adedokun thus: “This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brie to extract argument in respect of valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust arising therefrom may of necessity becloud its judgment.
The duty of the Court is that of an umpire whose functions in the interest of justice is to tend the rope and not to step into the brawl by exercising argument on good grounds of appeal from those of bad ones. See also Honika Sawmill (Nig) Ltd v. Harry Okojie Hoff (1994) 2 NWLR (pt. 326) 252 at 262, Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718.” Mary Ukaego Peter-Odili J.S.C.

It is now well settled in law that the ground and their particulars must be restricted to the errors complained of in the judgment. In order words, that the grounds and particulars of errors should not be framed at large. The case of Osasona v Ajayi (2004) 14 NWLR PT. 894 527 is apt in this regard. This Court held that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal.
They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. The particulars of ground one are not only fundamentally defective and they also increased the confusion as to the perceived error in the judgment. Mary Ukaego Peter-Odili J.S.C.

The particulars of a ground are only meant to be an addendum. See Mba v Agu (1999) 1 NWLR (PT.629) SC1. This Court in Globe Fishing Industries Ltd v Coker (1990) NWLR (PT.162) 265 S.C 3000 F-G reiterated the principle thus:- “The particulars and nature of the error or misdirection alleged in Order 8 Rule 2 (2) are the specific reasoning, finding or observations in the judgment relating to or projecting the error or misdirection complained of They are in the sense the itemisation of the error or misdirection in the judgment or ruling.
Particulars required are not the arguments or narratives that should be proffered at the hearing of appeal to establish that the Court erred or misdirected itself. They should not also be independent complaint from the ground of appeal but ancillary to it.” Mary Ukaego Peter-Odili J.S.C.

Such arrangement of arguments has offended all known practice and procedure of arguing appeals in this Court. We have stated several times, that in this Court, appeals are argued on issues, properly distilled from or formulated on the grounds of appeal, which must flow from and predicate on the judgment appealed against, touching on the ratio decidendi of the said judgment.
See the recent case of Sadiq & Ors Vs Yunusa (2022) LPELR – 56568 (CA), wherein we held: “It is true that an issue for determination of appeal must flow from and/or derive from the grounds of the appeal, which must, in turn, be founded and predicated on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the cases of Anyatonwu & 3 Ors Vs. Ezedu & 3 Ors (2018) LPELR 43809 CA, Nwaigwe & Anor Vs. Amaechi Esq & Ors (2017) LPELR – 43080 CA, Francis Vs Asugha (2020) LPELR – 50616 (CA).
In the case of Eze Vs. the State (2017) LPELR – 42006 (CA), it was held: It has been stated severally that appeals (the grounds thereof and issues there form) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87, Agboroh Vs WAEC (2016) LPELR – 40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413, Nnolim Vs Nnolim (2017) LPELR – 41642 (CA).
In the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Anozia Vs Nnani (2015) LPELR – 24277 CA (2015) 8 NWLR (pt.1461) 241, Obosi Vs NIPOST (2013) LPELR – 21397, UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32, Punch Nig. Ltd Vs Jumsum Nig.
Ltd (2011) 12 NWLR (pt.1260)162. “ PER MBABA, J.C.A.

I must quickly say that our law does not recognize a situation where, in the absence of a cross-appeal or respondent’s notice, a Respondent will depart from its traditional role of defending the decision being appealed against by the Appellant. Certainly, as the Supreme Court had held in the case of CAMEROON AIRLINES Vs.
OTUTUIZU (2011) LPELR-827(SC), the role of the Respondent in an appeal is to defend the judgment of the trial Court, but where the Respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental, he can only do so by filing a cross-appeal.
As noted earlier, the 4th to 6th Respondents’ counsel had, while canvassing argument in connection with the issue as to whether the instant suit constitutes an abuse of Court process, urged this Court to resolve the said issue in favour of the Appellant and set aside the learned trial Judge’s decision that the present suit does not amount to an abuse of Court process. In the event that the 4th to 6th Respondents do not agree with the reasoning of the learned Judge, they ought to file a cross-appeal and not argue against the decision of the trial Judge in their Respondents’ brief of argument.
I need not say more on this point. Such a conduct borders on misconduct which made the position being argued by the said learned counsel as one involved in a subtle collusive suit in the circumstance. PER KOLAWOLE, J.CA.

It is settled law and practice of appellate Courts that issues and not grounds of appeal are argued by Counsel and considered by the Court. Issues are therefore formulated to cover grounds of appeal. Hence a ground of appeal not having any argument proffered to cover it is deemed abandoned and must be struck out for that reason. See the cases of: (1) Agbareh & Anor V. Mimra & Ors (2008) LPELR – 43211 (SC); (2) Husseni & Anor V. Mohammmed & Ors (2014) LPELR – 24216 (SC) and (3) Patrick V. State (2018) LPELR – 43862 (SC). PER OMOLEYE, J.C.A.

​It is pertinent to note that the suit was not initiated under Fundamental Rights Enforcement Rules as it is only the High Court and the Federal High Court that has the jurisdiction to hear such matters. Any Fundamental Right Issue must arise from the trial Court’s omission or commission.
Upon the holistic interpretation of Sections 240, 243 (2 – 4) of the 1999 Constitution, all decisions from the National Industrial Court can be appealed as of right provided it borders on questions relating to Fundamental Rights and with leave of the lower Court on other civil matters where the National Industrial Court has exercised its jurisdiction.
See GOVERNING BOARD OF RUGIPOLY, ONDO STATE VS OLA (2016) 16 NWLR (PART 1537) PAGE 1 AT PAGE 21 – 29; UITHMB VS ABDURAHAMAN (2017) 15 NWLR (PART 1589) PAGE 397 AT PAGE 419; LAGOS SHERATON HOTEL VS HPSSSA (2014) 14 NWLR (PART 1426) PAGE 45 AT PAGE 65; NESTOIL PLC VS NUPENG (2018) LPELR-50094 (CA), AKOSHILE V NIMC & ANOR (2020) LPELR-51362 (CA); NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION VS BPE (2019) LPELR-48725 (CA). PER BANJOKO, J.C.A.

​It is elementary that an appeal is not for retrying the action, rather it is a rehearing on the Record of Appeal. The appellate Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discover the truth.
A party should not be seen to approbate and reprobate or to speak from both sides of his mouth at the same time on an issue in the case – Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511.
No reasonable Court or Tribunal will come to the aid of a party who is inconsistent in the presentation of his case before it – Oliyide & Sons Ltd Vs Obafemi Awolowo University Ile-Ife (2018) LPELR-43711(SC), Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Akande Vs IBB University, Lapai (2020) LPELR-52552(CA). In Akaninwo Vs Nsirim (2008) All FWLR (Pt. 410) 610 at 663, Tobi, JSC made the point thus: “A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth.
He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.” PER ABIRU, J.C.A.

Where a party consents to an irregular procedure adopted by his adversary in the lower Court by participating in the proceedings without any complaint, he cannot be heard to complain on appeal that the procedure was irregular – Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibade Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti LGA (2021) 13 NWLR (Pt 1794) 498. The Appellant cannot be heard on this complaint and it is unfounded in this appeal and cannot affect the judgment of the lower Court. PER ABIRU, J.C.A.

What conditions must an applicant fulfill before an application for extension of time within which an appellant may take procedural steps can succeed? MOHAMMED JSC in OLATUNBOSUN v. TEXACO (NIG.) PLC. & ANOR (2012) LPELR-7805 (SC) CHIEF T. O. S. BENSON v.
NIGERIA AGIP OIL CO. (1982) 5 S.C. 1 explained it thus “There is no doubt that an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking steps the grant of the enlargement of time applied for.” PER AWOTOYE, J.C.A.

-see Ibhafidon V. Igbinosun(2001) 8 NWLR (Pt. 716) 653 SC, wherein this Court, per Karibi-Whyte, JSC, stated as follows – “It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony.
Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.” HELEN MORONKEJI OGUNWUMIJU, J.S.C.

The absence of the leave will constitute failure to fulfil a condition precedent to the competence of the appeal which will in turn, deprive the Court of the requisite jurisdiction to adjudicate over it. This position of the law has been repeatedly stated by this Court in several decisions that include Ojukwu v. Onyeador (1991) 7 NWLR (pt. 203) 286, Gov., Kwara State v. Gafar (1997) 7 NWLR (pt. 511) 51, Odofin v. Agu (1992) 3 NWLR (pt. 229) 350, Ikeme v. Anakwe (2000) 8 NWLR (pt. 669) 484, Ajuwa v. SPDC Nig. Ltd. (2012) 11 WRN, 1 (SC) Olisa-lmegwu v.
Uche Okolocha (2013) 2-3 SC (pt. 1) 72, Akinyemi v. Odu’a Invest. co. Ltd. (2012) 17 NWLR (pt. 1329) 209 (SC). MOHAMMED LAWAL GARBA, J.S.C.

It is settled law that to determine whether the appeal relates to a pre-election matter, the Court would look at the claim at the trial Court. This Court has laid down the principle to determine whether a case is a pre-election matter or not in the most recent case of All Progressives Congress v.
Ibrahim Umar (2019) 8 NWLR (PT. 1675) 575 per Sanusi, JSC thus: “…that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as pre-election or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election.
To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise…” By the provision of Section 285(11) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018 an appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against. Where an appeal is not filed within the prescribed constitutional time limit, the Court cannot extend time. ADAMU JAURO, J.S.C.
FILING OF A SUIT IN THE COURT IN WHICH THE CAUSE OF ACTION OCCURED
The law is settled that a suit should be filed in the High Court of the state in which the facts constituting the cause of action occurred, that it is the High Court of the State in which the events giving rise to the action occurred that has the territorial jurisdiction over the suit, that the High Court of another state in which none of the events or facts occurred has no territorial jurisdiction over the suit.
Avoiding the High Court of the State in which the events occurred as done by the 1st Respondent in this appeal, to file a suit in the High Court of the Federal Capital Territory, Abuja in which none of the events giving rise to the suit occurred, amounts to forum shopping and a gross abuse of Court process. Consequently, the trial Court lacked the territorial jurisdictional competence to have entertained the suit in the first place, hence rendering the decision reached a nullity. ADAMU JAURO, J.S.C.

The position of the law is that where an intending appellant runs out of time in appealing against an interlocutory decision, the law grants him an unbridled license to seek for an extension of time. The Court in such an application, always favours him with an indulgence of extension of time, Malari v Leigh (2018) LPELR-43823 (SC).
An appeal against an interlocutory decision, filed out of time without leave of Court to extend time within which to appeal, is incompetent and the appellate Court lacks jurisdiction to hear the appeal,Adeleke v Cole [1961] 1 SCNLR 65. 246 – CHIMA CENTUS NWEZE, J.S.C.

An appellate Court can interfere with award of damages where it is convinced either that the lower Court acted upon a wrong principle of law, or that the amount awarded was extremely high or low, such as to make the decision appealed erroneous on the damages the Plaintiff was entitled to: FLINT v. LOVELL (1935) 1 KB 360; ZIK’S PRESS LTD. v. IKOKU (1951) 5 WACA 188; IDAHOSA v. ORASONYE (1959) SCNLR 407; BALA v. BANKOLE (1986) 3 NWLR (pt. 27) 141; ONAGA v. MICHO & CO. (1961) 1 ALL NLR 236; (1961) 1 SCNLR 101; INYANG v. EBONG (2002) 2 NWLR (pt. 751) 284 at 338. – PER EJEMBI EKO J.S.C

THE EFFECT OF FAILURE TO OBTAIN LEAVE TO APPEAL FROM THE COURT OF APPEAL ​ It is also settled that where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. So, failure to obtain leave renders the appeal incompetent, and it will be thrown out – see Garuba V. Omokhodion (supra). AMINA ADAMU AUGIE, J.S.C

This must be considered against the backdrop or the primacy of the right of appeal, which is considered as sacrosanct. See Abubakar v Yaradua (2008) 4 NWLR Pt 1078, 465, 496, Edjekpo v Osia (2007) 29 NSCLQR 842, 866, Yekini Afosi v State (2008) 33 NSCQLR 1445, 1448, Bello v Attorney General of Oyo State (1986) 5 NWLR (Pt 45) 828, 848. FBN PLC v Agbara (2020) 15 NWLR (Pt 1748) 537, 551, APC v Karfi (2018) 6 NWLR (Pt 1616) 479, 506. The right of appeal is a constitutionally guaranteed right, albeit regulated by statute. It is not a right that is easily divested.
This Court should be reluctant to find against the exercise of this right in the absence of clear a  nd unambiguous statutory provisions. The Court attaches the same primacy to the related rights of access to Court and fair hearing. See Transnav P.N. Ltd v Velcan E.H.D. Ltd (2020) 7 NWLR (Pt 1723) 293, 316-317, Tyonex (Nig) Ltd v Pfizer Ltd (2020) 1 NWLR (Pt 1704) 125 166.
Section 580 of the Companies and Allied Matters Act is not a bar to proceedings in this case as the trial Court had the jurisdiction to proceed with the winding up proceedings, entertain any matter or application arising therein, including the Motion of 26/01/1995, and to dispose of same. The failure of the 1st Respondent to obtain leave to proceed within the proceedings at the trial Court and the Court below does not contravene Section 580 of Companies and Allied Matters Act. HELEN MORONKEJI OGUNWUMIJU, J.S.C.

An appeal is said to be as of right when and where a party dissatisfied with the decision of Court, in civil or criminal proceedings, is vested with the right, power and freedom to initiate or commence the appeal by giving the requisite notice in the required form and within the prescribed period of time, without any hindrance or let. The right to appeal is unfettered so long as it was exercised in accordance with any statutory provisions enacted for the purpose and so prior sanction or permission of Court is not needed for the exercise of the right. See Ojukwu v.
Onyeador (1991) 7 NWLR (pt. 203) 286, Iwueke v. Imo Broadcasting Corp. (2005) 10 SC, 19 at 33, Akwaruo v. Anyanwu (2006) All FWLR (pt. 302) 89, UBN, Plc v. Sogunro (2006) All FWLR (pt. 337) 402 at 410-411, Anoghalu v. Oraelosi (1999) 10 SCNJ, 1 – PER MOHAMMED LAWAL GARBA, J.S.C.

As seen above, the provisions of Subsection (3) says that an appeal shall lie from the decisions of the lower Court to this Court with the leave of either the lower Court or this Court where the ground/grounds involve/s question/s other than of law alone provided for in Subsection (2) (a). An appeal in the circumstances of Subsection (3), is made subject to the leave of either the lower Court or this Court for it to be validly initiated or commenced by the giving/filing of the requisite notice by a party desirous of appealing to the Court.
In other words, unlike an appeal as of right under Subsection (2) (a), the exercise of the right of appeal under the provisions of Subsection (3) is subjected, restricted, and subordinated to the requirement of prior permission or sanction of Court, by way of leave, before a valid Notice of Appeal can be given or filed in order to properly invoke and vest the Court with the constitutional jurisdiction to entertain and adjudicate over the appeal.
Clearly, the prior leave of Court in such a situation is made a condition precedent to be fulfilled or satisfied in order for an appeal to be valid and competent for the Court to be seized of the jurisdiction to entertain and adjudicate over it. Where such necessary leave of Court was not obtained prior to the filing of a Notice of Appeal, the appeal will be invalid and incompetent for failure to satisfy or fulfil the condition precedent for the exercise of the right of appeal, thereby depriving the Court of the requisite jurisdiction over it – PER MOHAMMED LAWAL GARBA, J.S.C.

“A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the ACT, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal”. Similarly, this Court in ADEGBITE & ANOR V.
AMOSU (2016) LPELR-40655 (SC) held as follows; “Thus, documents not tendered at the trial Court due to inadvertence of counsel, can be tendered on appeal as fresh evidence in the interest of justice. See: Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264. Further, in Adeleke v. Aserifa (supra).
The law was restated by Karibi-Whyte in his contribution in the above case as follows: “Hence where evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if applicant referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it. See Latinwo v. Ajao (1973) 2 SC 99’. ” -PER TIJJANI ABUBAKAR, J.S.C.
The Court will normally allow fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an applicant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice leave should be granted, it shall be granted, without any further hesitation -PER TIJJANI ABUBAKAR, J.S.C.
Order 2 Rule 12(1) of the Supreme Court Rules provides that a party who wishes the Court to receive the evidence of witnesses (where they were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provision of Section 33 of the Act, shall apply for leave on Notice of Motion prior to the date set down for the hearing of the appeal. This is what the applicant has done in this application.
The law is settled that it is within the discretion of the Court to decide whether or not to admit additional evidence on appeal upon being satisfied of the laid down guiding principles as follows:- (i) That the evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial; (ii) That the evidence if admitted would have an important, not necessarily crucial effect on the whole case, and (iii) The evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible, See Ehinlanwo v Oke (2008) LPELR-1054 (SC) UBA Plc v BTL Industries Ltd (2005) 10 NWLR (Pt 933) 356 – PER JOHN INYANG OKORO, J.S.C.

Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E. Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence.
This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that: “Let me first take the issue of signing a document. In Ojo v. Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v.
Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed. It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker.
In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.” See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A. PER MOHAMMED, J.C.A.

By law, a finding and/or holding of Court, not appealed against, remains binding and conclusive. See the case of Ezike & Anor Vs Egbuaba (2019) LPELR – 46526 (SC): “The law is trite, that where a party has not challenged a finding by way of appeal, that finding stands.
See Dabo Vs Abdullahi (2005) 2 SC (Pt.1) 75, (2005) 7 NWLR (Pt.923) 181; Leventis Technical Vs Petro Jessica (1999) 6 NWLR (Pt.605) 45; (1999) 4 SCNJ 121 at 127.” See also the case of UBA Plc Vs Halilu & Anor (2022) LPELR – 57096 (CA), where we held: “I do not see how I can fault the above findings and decision of the trial Court, especially as Appellant never raised any appeal against those findings and holding. See the case of Opara Vs Dowel-Schlumberger Nig.
Ltd & Anor (2006) LPELR – 2746 SC, where the Supreme Court held: “It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court. In effect the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v.
Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140 it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.” PER MBABA, J.C.A.

​It is pertinent to state, on the contention of the Appellant that this suit was commenced using a wrong procedure, that is, by Originating Summons rather than via a Writ of Summons, that a party who condoned an irregularity at the trial, waives his right to object or protest against the irregularity or process and cannot be heard to do so on appeal. See – Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 347-348 Para G-A per Eko JSC.
Furthermore, an issue, as in the instant case, which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. A fresh issue cannot be taken up on appeal without the leave of the Court. See Idufueko v. Pfizer Products Ltd (2014) 12 NWLR part 1420 Page 96 at 122 Para A per Galadima JSC; Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC .
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT Suffice it to say that where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge – Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC. As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court.
PER ADEFOPE-OKOJIE, J.C.A.

The general rule is that an appeal does not operate as stay of execution or proceedings. See OGUNREMI v DADA (1962) 2 SCNLR 417. In practice however, once an appeal has been entered, the res in the appeal automatically passes into the custody of the appellate Court and “[i]t only stands to reason that two masters cannot steer the same boat. The High Court must yield to the Court of Appeal whenever an appeal against a trial Court’s decision has been entered at the Court of Appeal. This is because, being a final decision of the High Court, there is nothing left for it to decide.
Immediately the Court of Appeal receives the record of proceedings, everything must be brought to the jurisdiction of the higher Court. The same principle holds good for the relationship between this Court and the Supreme Court so that immediately a final appeal or even an interlocutory appeal is entered there, the Court of Appeal, ceases to have jurisdiction on the matter. Really, there should not have been any argument about the old age tradition now codified in the rules of Court”: IKPEAZU v OGAH (2016) LPELR-40845(CA) 1 at 22-23 –per Ogunwumiju JCA (now JSC).
See also ABINA v TIKA TORE PRESS (1968) 1 ALL NLR 210, (1968) LPELR-25528(SC), OGUNREMI v DADA (1962) 2 SCNLR 417, EZEOKAFOR v EZEILO [1999] 9 NWLR (PT. 619) 513 and DINGYADI & ANOR v INEC & ORS (2011) LPELR-950(SC) 1 at 35-36 –per Adekeye, JSC.
Thus, once a lower Court becomes aware of, or its attention is adverted to, the fact that an appeal against its decision has been entered in a higher Court, the lower Court would usually defer to the higher Court by refraining from continuing with proceedings or otherwise entertaining and determining any pending application that has a bearing on the appeal until and unless the appeal is disposed of one way or another.
However, because foisting a stay of proceedings on a lower Court merely on the ground that an appeal has been entered in a higher Court is fraught with the potential of the appeal process being abused or deployed to serve ends other than the dictates of justice, a fine but necessary distinction is often drawn between final and interlocutory appeals; and it would seem that in respect of interlocutory appeals, the question of whether or not the lower Court ought to stay its proceedings is dictated by the demands of justice in any particular case. In JIMI ODUBA v C.V.
SCHEEPV AARRTONDERNEMING HOUTMANGRACHT & ANOR [1997] 6 NWLR (PT. 508) 185 at 205–206 (an appeal revolving around the issue of security for costs ordered by the trial Court), the Supreme Court (per Belgore JSC, as he then was) opined thus: “I agree with my learned brother, Iguh JSC that the main achievement of this matter travelling up to this Court was to frustrate the expeditious trial of the substantive case that has been lying dormant for almost nine years due to stay of proceedings the appellant procured.
It is true that out of respect for hierarchy of Courts, once an interlocutory appeal is entered, the lower Court stays proceedings in many cases voluntarily. But whether the stay is voluntary by the trial Court or on it is being moved so to do, regard must be given to the overriding principle of justice of the case.
If the stay of proceedings, by the nature of the case, will tend to stifle the case and cause great inconvenience and/or great loss to the person who wishes to proceed with the hearing, the trial Court should not stay the proceedings unless ordered by a Superior Court.” Not dissimilarly, this Court (per Yahaya JCA) held in IKPEAZU v OGAH supra at p. 23 that: “Once an appeal is entered in this Court, all Courts below should hands off. When a Court makes a ruling, in the course of hearing a substantive suit, a party dissatisfied, may appeal it.
The record in respect of the ruling is then transmitted to the Court of Appeal for determination. Once that is done, the Court will cease to have jurisdiction in respect of the subject of the ruling, but would have the jurisdiction to continue with the substantive suit, as the record of it, has not been transmitted to the Court of Appeal.” PER AFFEN, J.C.A.

By Order 4 Rules 10 and 11 (1) of the Court of Appeal Rules 2021, an appeal is entered when the record has been received in the Registry of this Court within the time prescribed by the Rules or within such other extended time as ordered by the Court; and upon entry of an appeal and until it has finally been disposed of, the Court shall be seised of the whole proceedings as between the parties thereto and every application therein shall be made to the Court and not to the Court below except otherwise provided in the Rules.
It was in apparent obedience to the provisions of the Court of Appeal Rules that the lower Court declined to hear the interpleader summons, without saying so expressly. But the lower Court clearly lost sight of, and did not factor in, the provisions of Order 4 Rule 11(2) to the following effect: “Nothing in Sub-rule (1) above shall be construed as requiring the lower Court to order stay of proceedings, or adjourn sine die, proceedings in relation to matters or proceedings in the lower Court that are not impacted by or to which the appeal entered in the Court of Appeal does not relate” .
PER AFFEN, J.C.A.

The position of the law in this regard is to the effect that any finding or decision of a Court that is not appealed against where a right of appeal exists, is deemed to be right or correct and as having been accepted. See the cases of ODJEVWEDJE V. ECHANOKPE (1987) LPELR-8049(SC) and DABO V. ABDULLAHI (2005) LPELR-903(SC) amongst many others.
Against the backdrop of the foregoing, the simple issues that have to be decided in the instant appeal in my considered view therefore are “(i) whether or not the lower Court was wrong in not releasing the Appellant from prison custody unconditionally having found his right to personal liberty to have been breached by the parties he brought his application against and two of whom have been struck out as parties in the instant appeal; same having been withdrawn against them; and (ii) whether or not the Appellant can have this Court increase the damages awarded by the lower Court against the 1st Respondent and the other two the appeal was lodged against, having decided to withdraw the said appeal against the said other two”.
PER LOKULO-SODIPE, J.C.A.

​ The general principle of law applicable to raising fresh issues on appeal is to the effect that appeals being generally a re-hearing of the suit, parties are bound by their case at trial and will not be allowed to present a new case or issues before an appellate Court except for cogent reasons justifying such an action. The Supreme Court in the case of CHRISTOPHER OBUEKE & Ors v. N.N. Nnamchi & Ors (2012) 12 NWLR (pt. 1314) 327 put it thus: ”It’s to be noted that it is a well-grounded principle of law that an appeal is not a novel or new process that can take off on its own.
Rather, it is a continuation of the suit at the lower Court and no party or even a Court can get away from the action to commence a completely new thing on appeal.’’ The law is fairly settled on the parameters that must be met in order to warrant the grant of leave to an Appellant to raise fresh issues on appeal. That is: 1. The fresh issue sought to be raised on appeal involves a substantial point of law. 2. All the facts in support of such fresh issue or question shall be before the Court in the record of appeal; and 3.
No further evidence is required. ​In addition to the above factors is the underlining fact that an appellate Court will grant leave to raise and argue fresh issues where it considers that granting such leave will aid in reaching substantial justice between the parties and refuse same where the grant of leave will occasion miscarriage of justice. See CORPORATE IDEALS INS. LTD v. AJAOKUTA STEEL CO. LTD (2014) 165 AT 188. PER EKO, J.S.C. (para. 13); UNION BANK OF NIGERIA PLC v. CHIEF OLUDOTUN OLAJIDE KOLEOSO (2017) LPELR-CA/L/227/2008; and GTB VS INNOSON NIGERIA LTD (2017) LPELR-SC.694/2014.
PER TUKUR, J.C.A.

It is trite law that the decision of a Court which is not challenged in the Notice of Appeal vide Ground(s) of Appeal is deemed to be accepted or conceded to by the Appellant. See Dabo V. Abdullahi (supra), Funtaji Int’l School Ltd. V. GTB Plc. (supra) and Anyanwu V. Onyeagocha & Ors (supra). PER ABDULLAHI, J.C.A.

The trial Court did not consider and pronounce on the documentary evidence placed before it, which rendered its decision perverse and occasioned a miscarriage of justice. ​An appellate Court will interfere with the decision of a lower Court on the basis of miscarriage of justice where the violation of some principles of law or procedure is such that if corrected, a different result will be the outcome or where the neglect of some principle of law or procedure is such that if it had not been neglected a different result will be the outcome.
See Ibhade (Ning) Ltd Vs Akwari (2015)13 NWLR (Pt. 1477) 507 at 513. Miscarriage of justice is a failure on the part of the Court to do justice. It is justice misplaced or misappreciated. See Oguntayo Vs Adelaja (2009)15 NWLR (Pt. 1163) 150 and Onagoruwa Vs State (1993)7 NWLR (Pt.3O3) 49. In the instant case, if the learned trial Judge had properly examined the documentary evidence with the affidavit evidence of the parties he would have arrived at a different conclusion.
This is a case that this Court should justifiably interfere in the finding of fact because the findings of the trial Court were perverse having failed to take material documentary evidence into consideration. See Cameroon Airlines Vs Otutuizu (2011)14 NWLR (Pt. 1278); Arowolo Vs Olowookere (2011)8 NWLR (Pt. 1728) 280; Olowu Vs Nigerian Navy (2011)18 NWLR (Pt. 1279) 659 and Re-Mogaji (1986) NWLR (Pt. 19) 759. PER HASSAN, J.C.A.

It is the law that where an appeal cannot be filed as of right (as in this case where the lower Court sat in its appellate jurisdiction), the leave of Court is a condition precedent to the exercise of the right of appeal. The failure to obtain the required leave renders any appeal filed incompetent and no jurisdiction is conferred on the appellate Court to entertain the appeal. The effect of failure to obtain the leave of Court to appeal where same is required has been explained by the Apex Court, in BRIGADIER GENERAL DONATUS IDADA IKPONMWEN (RTD) VS. CAPT.
JOHN AIREN ASEMOTA & ANOR (2022) LPELR–56594 (SC) P. 22, PARAS. B-D, his lordship, Peter–Odili, JSC held thus: “It needs to be reiterated that when the seeking and obtaining leave to appeal constitute a condition precedent for the exercise of the right to appeal, failure to seek leave and obtain the mandatory leave renders the appeal incompetent. The purported appeal being a nullity or an illegality is tantamount to there being no appeal. See, OLOWOSOKE VS. OKE (1972) 11 SCI; NALSA & TEAM ASSOCIATES VS. NNPC (1991) 8 NWLR (PT. 212) 652 at 666.” PER UWA, J.C.A.

The right of appeal to the Court of Appeal from the decisions of the Federal High Court or State High Court is provided for by Sections 241, 242 and 243 of the 1999 Constitution (as amended) and Section 24 Part (v) of the Court of Appeal Act, CAP 36 LFN, 2004. Section 241(1) has clearly given situations where appeals from the Federal High Court or a High Court to the Court of Appeal as of Right.
Whereas Section 242(1) has made provision subject to the Provision of Section 241 of the Constitution above for situations where the leave of the lower Court or their Court would be required before an appeal could be competently filed. The law is that an appeal from the decision of a High Court given in its Appellate jurisdiction requires the leave of Court, either of the High Court or the Court of Appeal. See, PRINCE ADELUYI BUSUYI VS. COMMISSIONER OF POLICE (2016) LPELR–40864.
In such a situation, it is immaterial that the decision is a final one, where the issues involved are of law alone or facts or mixed law and facts. The leave of the Court is required before a competent appeal could be filed. In DANLADI DEME & ORS VS. ALABI RWANG & 1 OR (2010) LPELR–4032 in this Court, his lordship Rhodes–Vivour, JCA (as he then was) held that: “An appeal from the decision of a High Court delivered in its Appellate jurisdiction requires the leave of the High Court or this Court and non-compliance renders the appeal incompetent.” See, KAKALE & ANOR VS.
NOMA(2018) LPELR–44657 (CA). Therefore, the absence of leave having been sought and granted in the present appeal which arose from the decision of the High Court delivered in its appellate jurisdiction renders the appeal incompetent and robs the Court of the jurisdiction to hear and determine the appeal. See, also UKPONG VS. CFF (2006) 19 NWLR (PT. 1013) 187. The requisite leave is a condition precedent to the exercise of the Right of Appeal under Section 242(1) of the Constitution.
Without fulfilling the required condition precedent, of obtaining the leave of Court before the appeal was filed, no right of appeal would be vested on the Appellants. The failure in this case of the Appellants to have obtained the requisite leave as prescribed by Section 242(1) of the Constitution is fatal to the Appellants’ Appeal which is incompetent. See, AREMU & ORS VS. IMMAM (2016) LPELR–41243 (CA) PP. 2–3 PARAS. F–C, AYANBOYE VS. BALOGUN (1990) 5 NWLR 392 at 410, MOSOBA VS. ABUBAKAR (2004) LPELR–5252 (CA) PP. 7–9, PARA. A and IFEAJUNA VS.
IFEAJUNA & ANOR (1998) LPELR–6181 (CA) P. 16, PARAS. A–D, his lordship Akpabio, JCA in a similar condition that arose where the required leave to appeal against the decision of the High Court in its appellate jurisdiction held thus: “…since the appeal of the appellant was against a decision of the High Court sitting in its appellate jurisdiction, and not as a Court of first instance, leave of the said High Court or of this Court should have been obtained (see S. 221 (1) of the Constitution of the Federal Republic of Nigeria (1979).
Since no such leave has been obtained, the appeal is incompetent for failure to comply with a condition precedent. It is accordingly also hereby struck out by me with N2,000.00 costs in favour of respondent.” PER UWA, J.C.A.

There is no gainsaying the fact that the right to appeal is statutory in nature and in order to determine whether a person has lost his right to appeal or improperly exercised said right, recourse must be had to relevant principles of law. The law is settled that parties to a case before a trial Court may appeal final decisions of that Court as of right, that is without the need to seek leave of Court.
The foregoing is the implication of Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides thus: “an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: (a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.” See GLOBESTAR ENGINEERING COMPANY NIGERIA LTD v. MALLE HOLDINGS LTD (1999) LPELR-6637(CA). PER TUKUR, J.C.A.

Decidedly there are conditions before a Court can refer a case to the Court of Appeal for determination.
These conditions are that: (a) The question must involve an interpretation or application of the constitution. (b) The question for reference must involve a substantive question of law, and it is the duty of the Court making the reference to be satisfied that the questions are indeed substantial. (c) The Court making the reference to the High Court must refrain from giving its opinion. (d) The question as to the interpretation or application of the constitution, must arise in the proceedings in the High Court in connection with an issue before the Court making the reference. AUDU V. A.G.
FEDERATION AND ANOR. (2012) LPELR–15527 (SC). From the above, it is clear that the discretionary power of the Court comes to play, if the Court is of the opinion that there is no substantial issue of law, there is no need stating a case to the Court of Appeal for determination. PER PEMU, JC.A.

It is well settled that the only error made by a Court that will lead to a reversal of its judgment, is an error that occasioned a miscarriage of justice or substantially affected its decision - see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182. AMINA ADAMU AUGIE, J.S.C.

This Court, therefore cannot interfere with the findings of the Court below (as to the date the offence was committed) without a valid ground of appeal or complaint to that effect. This is in line with the decision of this Court in case of BHOJSONS PLC V. KALIO (2006) LPELR- 777(SC) (P.22), Per MOHAMMED, JSC, where it decided as follows: “…it is also a cardinal principle of law in Courts exercising appellate jurisdiction that before the findings or decisions of a trial Court can be contested at all, there must be a ground of appeal complaining of the inadequacies in the findings or decision.
See Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 WLR (Pt. 39) 1 at 30- 31 and Ekpa v. Utong (1991) 6 NWLR (197) 258 at 285 Without such ground of appeal, the findings or decisions stand and no argument to undermine them, no matter even indirectly, will be entertained by the Court of appeal.” MARY UKAEGO PETER-ODILI, J.S.C.

The law is settled that a decision of a Court of competent jurisdiction not appealed against remains valid, subsisting and binding on the parties and is presumed acceptable by them. It is also the law that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only while the other points or decisions not appealed against remain valid, subsisting and unchallenged. See: MICHAEL V.
THE STATE (2008) LPELR – 1874 (SC); where my lord MUSDAPHER (JSC, CJN) (of blessed memory) said as follows: “It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decision not appealed remain unchallenged.” See also: CAPTAIN SHULGIN OLEKSANDR & ORS v. LONESTAR DRILLING COMPANY LIMITED & ANOR (2015) LPELR-24614 (SC).
It therefore follows that, the issue whether Section 97(3) of the Criminal Law of Lagos State defines the offence the Appellant was charged with, has been settled by the trial Court and remains unchallenged. TIJJANI ABUBAKAR, J.S.C.

My Lords, an appeal succeeds if the judgment appealed against is shown not to have evolved from the evidence on record and/or where the Court has taken irrelevant matters into account or still, relevant matters are ignored in arriving at the decision appealed against. In any of these instances, the appellate Court will be duty bound to interfere and make the appropriate findings the lower Court should have otherwise made. See Atolagbe v. Shorun (1985) LPELR – 592 (SC), (1985) 1 NWLR (Pt. 2) 360 and Prof. Theophilus Adelodun Okin & Anor v.
Mrs Agnes Iyeba Okin (2019) LPELR – 47620 (SC), (2019) 11 NWLR (Pt. 1682) 138. CHIMA CENTUS NWEZE, J.S.C.

The law is trite that it is not every error committed by a Court that would result in its decision being reversed. To justify a reversal, the error complained of must be of such a nature as to cause a real miscarriage of justice. See: Gbadamosi Vs Dairo (2007) 1 SC (Pt.II) 151; (2007) LPELR-1315 (SC) @ 22 E – G; Bayol vs Ahemba (1999) LPELR-761 (SC) @ 24-25 G-D; Sani vs The State (2018) 8 NWLR (Pt.1622) 412; Garuba vs Omokhodion & Ors. (2011) LPELR-1309 (SC) @ 55 B-C. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

In Ohai v. Akpoemonye (1999)1 SC, 96, (1999) 1 NWLR (pt. 588) 521 Ogundare, JSC (of blesses memory) restated the law that– “For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a state, therefore, it must relate:- (a) To a question of customary law, and/or; (b) Such other matters as may be prescribed by an Act of the National Assembly. “ His Lordship, referred to the definition of customary law by Elias, CJN in Zaidan v.
Mohssen (1973) 11 SC, 21 as: “Any system or law not being the common law and not being a law enacted by any competent legislative in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.” MOHAMMED LAWAL GARBA, J.S.C.

As it happens, this Court is always reluctant to interfere with the concurrent findings of the two lower Courts, and this is even more so, when an Appeal turns on the issue of credibility - see Ogundiyan V. State (1991) 3 NWLR (Pt. 181) 519 SC, wherein Obaseki, JSC, observed: “Without any clear errors in law or fact leading to or occasioning miscarriage of justice, this Court will not interfere with the concurrent findings.
It is settled law that there must be clear proof of error either of law or of fact on record, which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings.” PER AMINA ADAMU AUGIE, J.S.C.

On acceptance of what I consider to be this Court’s current position on concurrent findings of the two lower Court’s, I concur with the leading judgment that the Supreme Court is always reluctant to interfere with the concurrent findings of the two lower Courts unless in the following exceptional circumstances such as: (a). when the findings are perverse; (b). when the findings are not supported by the available evidence; and (c) when the concurrent findings have occasioned a miscarriage of justice to the appellant. PER CHIMA CENTUS NWEZE, J.S.C

I find support in several decisions of this Court that an Appellant on appeal from the Court below may not take a point which he has not taken or argued in the Court below. This is in accord with the principle that an appeal is an avenue of rehearing of the case in an appellate Court. An Appellant may however challenge the judgment of the Court below on the ground which was not decided by that Court, particularly where it has raised a substantial point of law, more so, on the issue of jurisdiction. See: Our Line Ltd v. SCC (Nig) Ltd &Ors (2009) LPELR 2833 SC. PER ABDU ABOKI, J.S.C.

The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye [2009] LPELR-140 (SC); Atuyeye v Ashamu [1987] 1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra). Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency. PER CHIMA CENTUS NWEZE, J.S.C.

The position of this apex Court is that Appellate Court will not interfere with finding of facts by lower Court especially the concurring finding of fact by the lower Court and trial Court except the finding occasioned miscarriage of justice or is perverse. In aid on this position is the decision of this Honourable Court in Bello v.
FRN (2018) LPELR-44465 (SC), where it was held thus; “As I had earlier alluded to the concurrent findings and conclusion of the two Courts below, the question that I must answer at this level is whether there is justification upon which I can interfere with those findings of fact.
This question which must be answered advisedly bearing in mind the general principle that where there are concurrent findings of fact by the trial Court and the Court below such as in the instant case, the Supreme Court is not likely to disturb such findings which it can only do where those findings are perverse or a miscarriage of justice had taken place whereby this Court can take the stand of intervention or interference with the said findings. PER MARY UKAEGO PETER-ODILI, J.S.C.

Where a Court of trial, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record to justify the conclusion reached by the trial Court. Once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere with such findings. See CHIEF J. OKEOWO V. ATTORNEY GENERAL OF OGUN STATE (2010) 5 – 7 SC (Pt. 11) 129, MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V. ADEBAYO ADEYIGA & 6 ORS (2012) 2 SC (Pt. 1) 68, OSUJI V.
EKEOCHA (2009) 6 7 SC (Pt. 11) 91, CYRIACUS NNADOZIE & 3 ORS V. NZE OGBUNELU MBAGWU (2008) 1 SCNL 219, OYIBO IRIRI & OTHERS V. ESERORAYE ERHURHOBARA & ANOR (1991) 3 SCNJ 1. PER TIJJANI ABUBAKAR, J.S.C.

Where the trial Court is shown to suffer grave misapprehension, or dwell under severe misconception of the facts and arrived at wrong conclusion as in the instant case, the Court of appeal will be justified in interfering with the findings of the trial Court, in the instant case, the trial Court erred in evaluating the evidence on record and the lower Court in its judgment rightly in our view set aside the findings of the trial Court.
Appellate Courts only interfere with findings of fact by trial Courts if the facts or the evaluation of evidence by the trial Court is found to be perverse or clearly demonstrates misapprehension of the facts thereby leading to failure of justice.
In arriving at a decision on whether it is proper to interfere with the findings or not, the Appellate Court considers whether there was evidence before the lower Court to concrete the decision, whether the lower Court accepted or rejected any evidence tendered or adduced at the trial, whether the evidence adduced by either party to the dispute was properly evaluated by the lower Court, and whether the evidence adduced was sufficient to support the decision arrived at by the trial Court. PER TIJJANI ABUBAKAR, J.S.C.

For any party to succeed in showing that the Court exercised its discretion wrongly, the party has the onus to establish that the discretion was not exercised judiciously and judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations. See NATIONAL BANK OF NIGERIA LTD V. GUTHRIE (NIG) LTD (1993) 3 NWLR (Pt 284) 643 and STATOIL (NIG) LTD V. STAR DEEP WATER PETROLEUM LTD (2015) 16 NWLR (Pt. 1485) 361 . PER TIJJANI ABUBAKAR, J.S.C.

It is to be said that when a trial Court fails in its duty to consider evidence on material issue and make proper resolution, an Appellate Court always have the unfettered power to rise to the occasion and make its findings on the issue. See CBN V. ARIBO (2018) ALL FWLR (PT. 925) 93 AT 124, YESUFU V. ADAMA (2010) ALL FWLR (PT. 524) 69, TERIBA VS. ADEYEMO (2010) ALL FWLR (PT.533) 1868 AT 1880, AKINTOLA VS. BALOGUN (2000) 1 NWLR (PT. 642) 532, BEGHA VS. TIZA (2000) 4 NWLR (PT. 652) 193 and AKPULE V. AGBEOTU (1999) 9 NWLR (PT.621) 107. PER MARY UKAEGO PETER-ODILI, J.S.C

An appeal cannot be against an obiter dictum or a passing remark or opinion of the Court neither can there be an appeal on a finding made by a Court which does not have any bearing on the final order made by the Court. See ONTARIO OIL GAS LTD V. FRN (2018) ALL FWLR (PT.963) 1743 AT 1779, SYLVA V. INEC (2017) ALL FWLR (PT. 875) 1988 AT 2019 – 2020, METAL CONSTRUCTION (WA.) LTD V. MIGLIORE (1990) 1 NWLR (PT.126) 299, EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) AND ATOYEBI V. GOVERNOR OYO STATE (1994) 5 NWLR (PT. 344) 290 . PER MARY UKAEGO PETER-ODILI, J.S.C

A party who wishes to raise fresh issues on appeal must do so with the leave of the appellate Court and in the absence of such leave to raise and argue fresh issues on appeal, the party is foreclosed from raising grounds of appeal outside the decision being appealed against. See ONWUKA V. ONONUJU & ORS (2009) LPELR-2721 (SC); CGG (NIG) LTD V. AMINU (2015) LPELR-24463 (SC); SHAIBU V. STATE (2017) LPELR-42100 (SC); AGBITI V. NIGERIAN NAVY (2011) LPELR-2944 (SC); AWUSA V. NIGERIAN NAVY ​(2018) LPELR-44377 (SC). PER ADAMU JAURO, J.S.C.

An Appellate Court is only concerned with whether the judgment appealed against is right or wrong and not whether the reasons are correct or not. Where the judgment of the Court is right but the reasons are wrong, the Appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the Appellate Court will interfere. SeeEYO VS. INYANG (2001) 1 NWLR (PT. 715) 1, ABAYE VS. OFILI (1986) 1 NWLR (PT. 15) 134, UKEJUIANYA VS. UCHENDU 19 W.A.CA 46; NDAYAKO & ORS VS. DANTORO & ORS (2004) 13 NWLR (PT. 889) 187 AT 198.
PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C

It has now become elementary that the record of proceedings transmitted to the appeal Court form the basis on which an appeal is determined. It is the records of proceedings that authenticate the proceedings and the documented account of events that transpired during trial. To this end, all the parties to an appeal are bound by the contents of the record of the Court. In the same vein, the Appellate Courts are bound by its contents and cannot act outside of or give decisions at variance with the contents of record or proceedings. In Veepee Ind. Ltd. V. Cocoa Ind.
Ltd (2008) NWLR (Pt.1105) 486 S.C; (2008) LPELR-3461(SC) Per Muhammad JSC, this Court held thus: “It is the law that a Court of law has no right to act outside the four walls of the record of appeal placed before it. See Funduk Engr. Ltd V. McArthur (1995) 4 NWLR (Pt. 392) 640; (1995) 4 SCNJ 240. ” PER MARY UKAEGO PETER-ODILI, J.S.C

The law is settled that the judgment of any competent Court, once perfected, and not appealed against, is valid and subsisting until it is set aside by competent Court or authority. See:Ojiako Vs Ogueze & Ors. (1962) 1 ALL NLR 58; Chukwueke vs Okoronkwo (1999) LPELR – 857 (SC) @ 16 – 17 F – A: Ugo vs Ugo (2017) LPELR – 44809 (SC) @ 10 – 11 C- A: lyoha vs Effiong (2007) 4 (SC) (Pt. III) 90: (2007) 11 NWLR (Pt. 1044) 31. PER KEKERE-EKUN, J.S.C.

H aving acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC). PER KEKERE-EKUN, J.S.C.

Therefore, in order for discretion to be exercised in its favour, the materials it furnished ought to establish special grounds. The 5th Respondent/Applicant has referred to the conditions which if established would constitute the special grounds envisaged for the grant of the application. See OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), ASABORO vs. ARUWAJI (1974) ALL NLR (Reprint) 127 at 130-131, GAZU vs. NYAM (1998) 2 NWLR (PT 538) 437, DIKE-OGU vs. AMADI (2020) 1 NWLR (PT 1704) 45 and AMAECHI vs.
INEC (2008) 5 NWLR (PT 1080) 227 at 301-302. ​The legal position in considering an application for adduction of further evidence on appeal is that in civil cases, the Court will permit further, additional or fresh evidence in furtherance of justice under the following circumstances – (i) where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial. (ii) where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case. (iii) where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed.
It need not necessarily be incontrovertible. See ASABORO vs. ARUWAJI (supra), OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, ADELEKE vs. ASERIFA (1990) LPELR (116) 1 at 24-25, WILLIAMS vs. ADOLD/STAMM INT’L NIG LTD (2017) LPELR (41559) 1 at 47-48 and ODUTOLA vs. SANNI (2019) LPELR (49823) 1 at 6-7.
It seems to me that when an appellate Court is called upon to allow further, additional or fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further, additional or fresh evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (supra) at 493, UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15, SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10, ADELAKUN vs.
EFCC (2021) LPELR (53406) 1 at 16-19, MBAKWE vs. OBAKUNLE (2017) LPELR (50200) 1 at 14, GTB PLC vs. BENDU PETER SERVICES NIGERIA LTD (2022) LPELR (57064) 1 at 10-15 and ZENITH BANK PLC vs. NELKEN (2022) LPELR (58944) 1 at 11-16 . PER OGAKWU, J.C.A.

As referred and quoted by the learned counsel, the decision of this Court in Consolidated Oil vs. Summeroidd (Nig) Ltd (supra) is apt in the circumstance; where this Court held that: “It is elementary law that there must be an appeal pending in this Court before an application can be brought staying execution the judgment of the lower Court until the determination of an appeal to this Honourable Court. I know that there is an appeal against the ruling of the lower Court delivered on 29/5/95. The Notice of Appeal which contains six grounds.
The reliefs sought from the Court are: “An Order setting aside the ruling of the High Court delivered on 29/5/95 and remitting the application filed on 20/4/95 back to the High Court of Delta for determination”. From the foregoing reliefs sought, it is patently clear that the applicant did not appeal against the judgment of the lower Court dated 13/4/95.
Having said that, I have no difficulty in holding that … the motion dated 12/2/98 for lower Court dated 13/4/95 is premature and incompetent before this Court as there is no pending appeal in respect of the afore-mentioned judgment to sustain it. With this conclusion of mine, the arguments of other issues in respect of the application for stay of execution become otiose.” PER GAFAI, J.C.A

It is trite that an Appellate Court will not interfere with the discretion of a lower Court properly exercised.
It will however interfere in the following instances: (1) Where the discretion was not exercised in accordance with the law. (2) Where the discretion of the lower Court is perverse. (3) Where the lower Court acted under a misapprehension of the law. (4) Where the lower Court acted under a misapprehension of the facts. (5) Where the lower Court omitted to take into account matters that are relevant. (6) Where the discretion is exercised on wrong or inadequate materials. (7) Where it is in the interest of justice to interfere or prevent miscarriage of justice. ​See WAZIRI VS.
GUMEL (2012) 9 NWLR (PT. 1304)185; UKWU VS. BUNGE (1997) 8 NWLR (PT. 518)527; IN RE ALASE (2002) 10 NWLR (PT. 776) 553 AND CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115. PER AYODEJI, J.C.A.

An allegation that miscarriage of justice was occasioned by the failure or neglect of a Court of trial to deliver its judgment within 90 days is a very serious one that ought not to be lightly made, a rather weighty burden is imposed on the alleger to produce convincing, tangible and credible evidence demonstrating that he actually suffered a miscarriage of justice.
In the context of S. 294(1) and (5) CFRN, binding case law donates the proposition that there must be concrete evidence of failure of justice directly traceable to the very fact of non-delivery of decision within the constitutionally stipulated period of 90 days before any such decision can be declared a nullity on that score. See AKPAN v UMOH [1999] 11 NWLR (PT. 627) 349.
A miscarriage of justice contemplated by S. 294(1) must be tangible and clear on the face of the proceedings [See OYEGOKE v IRIGUNA [2001] ALL FWLR (PT 75) 448 at 462 – 463], even as the emphasis is not on the length of time per se, but on the effect the delay produced in the mind of the trial judge. See DIBIAMAKA v OSAKWE [1989] 3 NWLR (PT. 107) 101. PER AFFEN, J.C.A.

​I further wish to emphasis the established principle of law that the taking of evidence, evaluation of the same, ascription of probative value thereto and the assessment of the credibility of witnesses/evidence are issues exclusively within the terrain of a trial Court, entertaining a case, and it is not for an appellate Court to interfere with the lower Court’s findings on such evidence except where: – a. No finding was made on a relevant or material issue; b. Where there is no evidence to support the particular finding complained of; c.
The evidence which the trial Court failed or neglected to evaluate is a document tendered as exhibit; d. The finding complained of, is perverse and not the result of the proper exercise of the discretion of the Court to believe or disbelieve witnesses; e. That proper inference(s) and or deductions is/were not drawn or made from accepted facts; f. There has been a misapprehension by the trial Court as to what the antecedent presumptions were and where the onus of proof lies. See the cases of AYUYA V YONRIN (2011) LPELR-686(SC) and OJIKUTU V. KUTI (2021) LPELR-56231(SC) amongst many others.
PER LOKULO-SODIPE, J.C.A.

​ The law is that in a case on appeal after it has been tried on its merit, further evidence will be received in furtherance of justice under the following circumstances: (i) Where the evidence sought to be adduced in such as could not have been obtained with reasonable care and diligence for use at the trial. (ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case. (iii) Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed.
It need not necessarily be incontrovertible. See, DIKE-OGU & ORS VS. AMADI & ORS (2019) LPELR–47847 (SC) PP. 22–23, PARAS. D–B, OWATA VS. ANYIGOR (1993) 2 NWLR (PT. 276) 280; UBA PLC VS. B.T.L. INDUSTRIES LTD (2005) 10 NWLR (PT. 933) 356; EHINLANWO VS. OKE (2008) 16 NWLR (PT. 1113) 357, ADEGBITE & ANOR. VS. AMOSU (2016) LPELR–40655 (SC) PP. 6–9, PARAS. B–A. PER UWA, J.C.A.

Looking at the judgment of the Court below, it is evident that the learned trial judge did not only shift the burden of proof from the 1st Respondent to the Appellants and the other Respondents at the trial Court, he also failed to properly evaluate the evidence before him and it is well settled that an appellate Court will not ordinarily interfere with findings of facts of the trial Court and this is particularly so where the evaluation involves the assessment of the credibility of witnesses.
Where however, from the nature of the evidence, the evaluation would not entail demeanor and credibility of witnesses and simply entails the examination of oral and documentary evidence and the making of necessary deductions therefrom, the appellate Court is in as vantage a position as the trial Court to evaluate or re-evaluate same to see if the findings of the trial Court are supported by the evidence. And where the findings of the trial Court are not supported by the evidence then the appellate Court can intervene and substitute therewith findings supported by the evidence.
See generally, the cases of AKINTOLA VS. BALOGUN (2000) 1 NWLR (PT. 642) 532, TINUBU VS. KHALIL & DIBBO TRANSS LTD (2000) 11 NWLR (PT. 677) 171, BEGHA VS. TIZA (2000) 4 NWLR (PT. 652) 193, AKPULE VS. AGBEOTU (1999) 10 NWLR (PT. 621) 107, MOGAJI VS. ODOFIN (1978) 4 SC 91, FINEBONE VS. BROWN (1999) 4 NWLR (PT. 600) 613 and IGWE VS. STATE 1982 9 SC 114. Therefore, where a wrong conclusion is reached upon such evaluation, the appropriate thing to do is for the appellate Court to interfere and set it right in line with its statutory duties. See the case of ACHILIHU VS.
ANYATONWU (2013) 1 SCNJ 332 AT 359. PER IDRIS, J.C.A.

​ It is settled that an appeal is usually against a ratio and not against an obiter. “Obiter dictum” is Latin for “something said in passing”.
“It is a judicial comment made while delivering a judicial opinion but one that is unnecessary to the decision in the case and, therefore, not precedential”- see Black’s Law Dictionary: 9th Ed.. wherein it was explained that “ratio decidendi” [Latin for “the reason for deciding”}, “May mean either (1) the rule that the Judge, who decided the case, intended to lay down and apply to the facts, or (2) the rule that a later Court concedes him to have had the power to lay down” – [Glanville Williams, Learning the Law 75, 11th Ed., 19821.
“There are – – two steps involved in the ascertainment of the ratio decidendi – – First, it is necessary to determine all the facts of the case as seen by the Judge; secondly, it is necessary to discover which of those facts were treated as material by the Judge ‘. [Rupert Cross & J. W. Harris, Precedent in English Law 65-66,4th Ed., 1991]. PER AUGIE, J.S.C.

​ By virtue of Section 233(1} of the 1999 Constitution, the appellate jurisdiction of this Court is limited to appeals from the Court of Appeal. In other words, this Court, as an appellate Court only has jurisdiction to correct the errors of the Court of Appeal. This Court can only do so when the points argued consist of allegation of errors made by the Court below. It means that the point must have been raised at the Court below and that Court expressed its opinion thereon.
Since the appeal is against the finding of the Court of Appeal on a particular point, this Court would then be entitled to the opinion of the Court below on every allegation of error. See Moses v State (2006) 11 NWLR (pt 992) page 458; Shaibu v State (2017) LPELR – 42100 (SC); Akpabio v State (1994) 7 NWLR (pt 359) 635; Bankole & ors v Pelu & ors (1991) 8 NWLR (pt 211) page 523. Fresh issues can only be raised and argued upon leave having been sought and obtained. See Oforlete v State (2000) 7 SCNJ 162 at 169; Akpene v Barclays Bank of Nigeria (1977) 1 SC 47.
The only exceptions where leave is not required to argue fresh issue on appeal are where the issue of jurisdiction is raised for the first time on appeal. See Tiza & amor v Begha (2005) 15 NWLR (pt 949) 616 and where the fresh issue is based on point of law only and does not require adducing any further evidence to determine the matter and such issue is necessary to prevent a miscarriage of justice. See Ogigie & 3 ors v Obiyan (1997) 10 NWLR (pt 524) 179; Shaibu v State (supra). PER OKORO, J.S.C.

An appellate Court is enjoined to examine the Record in relation to the grounds of appeal filed and issues for determination; and “thereafter determine whether such issues were properly decided having regard to the evidence adduced by the Parties and the applicable laws”- see Ndike V. State - AMINA ADAMU AUGIE, J.S.C