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WHERE NO APPEAL, DECISION IS DEEMED ACCEPTED BY THE PARTY

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The settled position of the law applicable in the given circumstance is as straight forward as it comes and that is to the effect that a decision of Court against which no Appeal has been filed is deemed accepted by the party against whom the decision was entered and therefore binding. In the same token, the law is trite that a decision or conclusion or finding not appealed against is deemed correct and binding between the parties. See the cases of ODIASE v. AGHO and ORS (1972) 1 ALL NLR (Pt. 1) 170 AT 176; MELIFONWU v. EGBUJI (1982) 9 SC. 145 AT 165; BIARIKO v. EDEH-OGWUILE (2001) 12 NWLR (Pt. 726) 235; IYOHO v. EFFIONG (2007) 11 NWLR (Pt. 1044) 31; and S.P.D.C. v. X.M. FED. LTD (2006) 16 NWLR (Pt. 1004) 189 where the Supreme Court per ONNOGHEN, JSC had this to say on the subject: “It is settled law that a decision of a Court not Appealed against remains valid, subsisting, and binding between the parties and is presumed acceptable to the parties.”

— F.O. Oho, JCA. Nasiru v State (2016) – CA/S/78C/2015

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ONLY FUNDAMENTAL HUMAN RIGHTS ISSUES WHICH ARE INCIDENTAL TO THE MAIN CLAIM CAN BE RAISED FOR THE FIRST TIME IN THE SUPREME COURT

✓ It is this clear that the jurisdiction to entertain any suit which seeks to enforce the observance of a fundamental right under chapter 4 of the Constitution, including the right of any person not to be subjected to torture, inhuman or degrading treatment guaranteed under section 31(1)(a), of the 1979 Constitution, ties only with the High Court of a State or a Federal High Court in the exercise of its original jurisdiction. The jurisdiction of the Supreme Court is appellate and not original. See Attorney-General of Anambra State and others v. Attorney-General of the Federation and others (1993) 6 NWLR (Pt.302) 692. However, constitutional issues which pertain only to the breach of a fundamental right in the course of trial or hearing before the lower courts may be raised in an appeal to the Supreme Court. Such issues are those that relate mainly to breach of the right to fair hearing and the right to personal liberty under sections 32 and 33 of the Constitution. Other rights such as right to life and those to private and family life, peaceful assembly and association and freedom of the press can only be enforced through a substantive action in the appropriate High Court and cannot be raised in an appellate court, including the Supreme Court, as being incidental to the proceedings in the lower courts. The appellate courts, inclusive of the Supreme Court, have no original jurisdiction to entertain, determine or pronounce on questions relating to an alleged breach of fundamental rights, especially where the issue involved or the redress invoked is not directly relevant or intrinsic to the determination, on the merit, of the appeal before them. — Iguh JSC. Onuoha v State (1998) – SC. 24/1996

✓ The death row phenomenon was only raised obliquely and clearly extrinsically by the appellant in this appeal. The issue raised is whether the appellant’s confinement under sentence of death for an alleged unnecessarily prolonged length of time from the date of his conviction amounts to cruel, inhuman and degrading treatment contrary to section 31(1)(a) of the Constitution thereby warranting the quashing of his death sentence and substituting the same with life imprisonment. This issue, in my view, is not properly before this court. The jurisdiction of this court to entertain and determine such constitutional question will only arise on appeal after both the High Court and the Court of Appeal have considered and adjudicated on the issue. This is exactly the procedure adopted in the foreign cases that were cited before us. — Iguh JSC. Onuoha v State (1998) – SC. 24/1996

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JUDGEMENT NOT APPEALED IS BINDING

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)

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PARTY CANNOT RAISE NEW ARGUMENT FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE

A counsel cannot make out a case not pleaded by a litigant in his address before the court. Where the appellant did not predicate her case on customary law before the lower court, she cannot raise same here afresh before this court. The simple answer is that an appeal is not a new action but a continuation of the matter which is the subject – mater of the appeal. Hence an appellant cannot be allowed to set up a case different to that which was made out at the court below. This is because the appellate court would not have had the benefit of the opinion of the lower court on the issue. Eze V. A- G Rivers State (2001) 18 NWLR pt, 746, pg. 524 Ejiofodomi V. Okonkwo (1982) II SC 74 Dwege V. Iyamahan (1983) 8 SC 76 A-G Oyo State V. Fairlakes Hotels Limited (1988) 5 NWLR pt. 92, pg. 1 FRN V. Zebra Energy Limited (2002) 3 NWLR pt. 754, pg. 471.

— O.O. Adekeye, JSC. Agboola v UBA (2011) – SC.86/2003

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AN APPEAL IS AGAINST A RATIO, NOT OBITER

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

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

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RESPONDENT CANNOT COUCH ISSUE OUTSIDE APPELLANT’S GROUNDS OF APPEAL

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

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

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WHERE APPEAL COURT MAY INTERFERE IN THE DECISION OF THE LOWER COURT

Once an appellate Court finds that the conclusion reached by a lower Court is correct, it has no duty to interfere. Thus, the duty of an appellate Court to interfere will arise only where the finding, conclusion and/or decision of the lower Court is wrong and/or perverse. In law, a finding or conclusion of a Court is said to be perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances, an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence in the printed record of appeal.

– Abdu Aboki, JSC. Chukwu v. State (2021)

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