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

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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

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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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APPEAL AGAINST THE WEIGHT OF EVIDENCE

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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APPEAL AGAINST A NONEXISTENT DECISION

I need only add that an appeal against a phantom or non-existent decision is an abuse of the Court’s process.

– Ejembi Eko, J.S.C. Mekwunye v. Emirates (2018) – SC.488/2014

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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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APPELLATE COURT INTERFERENCE WITH TRIAL COURTS DISCRETION

It needs to be emphasised here that an appellate Court will usually not interfere with an exercise of discretion in its quest to obtain substantial justice except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all necessary consideration having regard to the circumstances of the particular case. – Nweze JSC. Abdullahi v. Adetutu (2019)

Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity. – Nweze JSC. Abdullahi v. Adetutu (2019)

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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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