Generally there is no right of appeal against an award of costs except with leave of the High Court or of this court by virtue of section 241(2)(c) of the 1999 constitution. The exception to this provision of the constitution is where in addition to appeal as to costs, there is appeal on other issues or issue. See Anyaso v. Anyaso (1998) 9 NWLR (Pt 564) page 157. Ayanboye v. Balogun (1990) 5 NWLR (Pt 151) page 410.
— Abdu Aboki JCA. ACB v Ajugwo (2011) – CA/E/66/2006
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It is also trite that an appeal is a continuation of the original action. The parties are therefore confined to their case as pleaded and presented at the Court of first instance. See: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1 @ 225; Adegoke Motors Vs Adesanya (1989) 3 NWLR (Pt. 109) 250 @ 266; Alhassan Vs Ishaku (2016) LPELR – 40083 (SC) @ 680.
— K.M.O. Kekere-Ekun, JSC. MTN v. Corporate (2019) – SC.674/2014
The excerpts above of the trial Court findings and conclusions were not appealed against at the lower Court which throws up the settled law that where there is no appeal against specific findings of fact made at the trial Court, those findings remain for all time unassailable and deemed accepted as representing the true state of affairs. It therefore becomes futile trying to smuggle those same issues at another level of appeal since they have in effect been conceded by the party against whom they were decided and remains valid and binding on all parties forever. I rely on Anyanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar’Adua (2010) All FWLR (Pt.534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt.739) 1080 at 1094.
— M.U. Peter-Odili, JSC. MTN v. Corporate (2019) – SC.674/2014
A Respondent’s role in an Appeal is to defend the judgment on Appeal, and not attack it. On the other hand, it is duty of the Appellant to attack the judgment. After all he filed the Appeal because he believes it is wrong. If a Respondent is not satisfied with the judgment on Appeal he should file a Cross Appeal or Respondents Notice. See New Nig Bank PLC v Egun (2001) 7 NWLR (Pt. 711) p.1 and Ibe v Onuorah (1999) 14 NWLR (Pt. 638) p. 340. It must be noted, though that a Cross Appeal and a Respondents Notice cannot co-exist.
— O. Rhodes-Vivour, JSC. Bakari v. Ogundipe (2020) – SC.514/2015
An appeal is generally taken to be a continuation of the original case started at the first instance court. It is not a new cause of action, See: Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 171 at p.211; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250. It is always confined to the consideration of the record which was forwarded from the court below with no new testimony or issues raised in the appellate court. Focussing on the record of appeal placed before it, the appeal court “rehears” the case and may make its own evaluation of the evidence contained in the record of appeal. From that record, the appeal court may review the findings and inferences of fact and, where it considers it proper, may substitutes its own view of the facts for that of the trial court. It may also review the whole proceedings including all the interlocutory decisions given in the trial. It may reject conclusions of the trial court from facts which do not flow from the evidence or may be regarded as perverse. See: Okotie-Eboh and Ors v. Okotie-Eboh and Ors 1986) 1 SC 479 at p.507; Onowan and Anor v. Iserhein (1976) NWLR 263. What the court below did is akin to this principle of practice and procedure.
— I.T. Muhammad, JSC. EFET v INEC (SC.207/2009, 28 January 2011)
The learned counsel for the plaintiffs/respondents objected to the brief filed by the 1st defendant/respondent on the ground that she did not file an appeal against the judgment of the lower court and she cannot be heard in her brief to support the appellant.
In reply the learned counsel for the 1st defendant/respondent submitted that he was at liberty to argue the appeal as long as he does not go outside the grounds of appeal filed by the appellant.
It should be noted that the 1st defendant/respondent did not defend the suit in the lower court. She also did not appeal against the judgment of the lower court. It will therefore be outrageous to allow her to argue her brief in favour of the appellant before this court. The whole case revolved on her in the lower court. She chose to do nothing before that court and did not appeal against the judgment of the lower court. The implication is that she is satisfied with the judgment of the lower court and cannot be allowed to argue the contrary in this court. The brief filed on her behalf is hereby discountenanced and struck out.
– Ogebe JCA. Ohiaeri v. Yusuf (2003)
Mogaji and Ors. v. Odofin and Ors. (1978) 4 S.C. 91 at 93, Fatayi-Williams J.S.C. (as he then was) said: “When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.”
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