INTEREST TO BE SHOWN BY AN INTERESTED PERSON TO APPEAL

WHEN AN APPEAL IS ENTERED, THE APPEAL COURT IS SEISED OF THE WHOLE PROCEEDING

As observed earlier, there is a finding by the court below that there was a pending appeal before it as Appeal No. CA/L/133/93 which was entered on May 2, 1995. Now, in accordance with the provisions of the Court of Appeal Rules, 1981 (as amended) an appeal is said to be entered in the court when the record of proceedings in the trial court has been received in the Registry of the court. See: Order 1 Rule 22, Court of Appeal Rules (1981) (as amended); Order 4 Rule 10, Court of Appeal Rules, 2007 (as amended). Once it is so entered, an appeal is then said to be pending. The Rule governing the control of proceedings during pendency of an appeal is that after an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the court below (i.e. the trial), but any application may be filed in the trial court for transmission to the court below. See Order 4, Rule 11. Thus, in pursuance of the above provisions of the Court of Appeal Rules, the trial court will have no competence or jurisdiction to decide on any application whether on notice or ex-parte in relation to an appeal which the trial court has become FUNCTUS OFFICIO. If the trial court takes any step thereon, except for the purposes of transmitting the processes so filed to the Court of Appeal, that step taken will be declared a nullity.

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

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

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

WHAT DOES “APPEAL” MEANS?

The word “appeal” is simply to make a formal request to somebody in authority “for a decision to be changed” Oxford Learners Dictionary. In an Appeal, the lower Court’s decision is submitted to a higher Court “for review and possible reversal” see Black’s Law Dictionary, 9th Ed.

— A.A. Augie, JSC. Usman v The State (2019) – SC.228/2016

AN APPEAL ALLOWED SHOULD NOT BE DISMISSED

The lower court cannot hold simultaneously that the appeal is allowed in part yet proceeded to dismiss the appellant’s claims in its entirety particularly when the part of the appeal allowed has to do with the award of the sum of N70,000.00 share of profit to the appellant. To hold as the lower court did was an obvious error which ought not to be allowed to stand. – Onnoghen JSC. Alade v. Alic (2010)