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APPEAL STANDS OR FALL ON POINTS APPEALED AGAINST

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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.”

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CONDITIONS TO BE SATISFIED BEFORE FRESH EVIDENCE CAN BE RECEIVED ON APPEAL

Finally My Lords, on this application, I wish to state that fresh evidence is not received as a matter of course. There are conditions which must co-exist before the court can grant this type of application as can be garnered from decided authorities of this court which include but not limited to Onwubuariri & ors v Igboasoyi & ors (2001) 3 NWLR (pt. 1234) and Adegbite v Amosun (2016) 5 NWLR (pt. 1536) 405 at 422, cases cited by the learned senior counsel for the 2nd Respondent. Simply put, the conditions are that: (1) the fresh evidence could not have been obtained with reasonable diligence at trial, (2) such evidence, if admitted would have important effect on the subject of the appeal, (3) such evidence, ex-facie, is 43 apparently capable of being believed, (4) such evidence would have influenced the judgment of the lower court in favour of the appellants, had it been available and (5) and if such evidence is admitted, further evidences from the opposing party will not be needed.

— I. Okoro JSC. Atiku, PDP v. INEC, Tinubu, APC (SC/CV/935/2023, 26th day of October, 2023)

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APPEAL TO NATIONAL INDUSTRIAL COURT: APPEAL ON CHAPTER IV IS OF RIGHT

In law when an appeal against the decision of the Court below, the National Industrial Court of Nigeria, borders squarely on allegation of any breach of Chapter IV of the Constitution of Nigeria 1999 (as amended) dealing with the provisions relating to fundamental rights, such an appeal lie as of right and no leave of Court is required. So also is an appeal against the decision of the Court below in criminal matters lie as of right without any need for leave of Court. However, where an appeal against the decision of the Court below in civil matter borders on grounds other than grounds alleging breach of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), happily the law is now firmly settled that it can only lie with the leave of Court. See Skye Bank v. Iwu (2017) LPELR-42595 (SC).

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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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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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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REQUIREMENTS TO SUCCEED IN AN APPEAL

In order to succeed in this appeal, the appellant must show that the decision of the lower Court affirming the judgment of the trial Court is perverse, either because the evaluation of evidence and findings of fact were not based on a proper and dispassionate appraisal of the evidence on record, or the trial Court did not make proper use of the opportunity of seeing and hearing the witnesses testify, or that the findings were reached as a result of a wrong application of substantive law or procedure, or that there was a miscarriage of justice manifest on the face of the record. See: Igbi Vs The State (2000) 3 NWLR (Pt. 648) 169; Shehu Vs The State (2010) 8 NWLR (Pt. 1195) 112; Itu Vs The State (2016) 5 NWLR (Pt. 1506) 443.

— Kekere-Ekun, JSC. Ogunleye Tobi v The State (2019) – SC.714/2017

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WHERE NO ISSUE ARISES FROM A GROUND OF APPEAL

In law, a ground of appeal from which no issue for determination was distilled is deemed abandoned and liable to be struck out without much ado. Consequently, Ground 7 in the Notice of Appeal are hereby stuck out.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

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