Issues

It is long settled that the appellate Court, particularly this one, is not under any duty to determine the appeal before it on the basis of the issue(s) formulated by the appellant or any of the parties thereto. The Court may prefer any issue(s) formulated by any of the parties or, still, suo motu formulate issue(s) it considers germane for the just and effectual determination of the matter in controversy between the parties. The preferred issue(s) must however evolve from the grounds in the notice of appeal. See Latunde & Anor V. Bella Lajinfin (1989) 5 SC 59, Diokpa Francis Onochie V. Feguson Odogwu (2006) 2 SCNJ 96, Edem V. Cankon Balls Ltd & Anor (2005) LPELR-1007 (SC) (2005) 6 SC (Pt 11) 16.

It is settled that issues are formulated from Grounds of Appeal, which must relate to the decision appealed against- lwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308. In effect, the question posed in the second Respondent's brief is of no relevance in this Appeal.

SHUAIBU LAU V. PEOPLES DEMOCRATIC PARTY [PDP] &

Order 6 Rule 5(b) under which the appellant brought his notice of intention to contend that the charge he was tried and convicted for is incompetent reads:- "5(b) the brief which may be settled by counsel, shall contain what all in the appellant's view, the issues arising in the appeal. If the appellant is abandoning any point taken in the Court below, this shall be so stated in the brief. Equally, if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the Court below this shall be indicated in the brief." Undoubtedly, the foregoing rule gives this Court the discretion to allow the appellant to raise and argue such fresh issue or question that had not been raised and determined by the two Courts below particularly where the fresh issue or question raises a substantial point of law, substantive or procedural and the determination of the question of the question or issue does not require further evidence. Thus at such an appropriate instance the Court may allow a fresh point to be raised to avoid miscarriage of justice. In Okenwa v. Military Governor, Imo State (1996) 6 NWLR (PT.455) 394 at 408, this Court restated the principles and conditions for permitting a party to raise a fresh point on appeal thus:- 1. Where the point of law ex-facie discloses that the Court has no jurisdiction. 2. Where the point of law raised arose out of the decision of the Court of first instance and could not have been raised earlier in that Court. 3. Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the Court. 4. Where all materials necessary for the determination of the point of law raised are present in the records of the Court and 5. Where the Court is satisfied that the evidence is such that establishes beyond doubt, that the facts, if fully investigated would have supported the new plea. (Underlining supplied for emphasis).