Appeal 2

• Date: 18 July 2012

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Findings of fact not appealed against Paras. 1343-1346

VOL. 1 (P. II)

(84) FINDINGS OF FACT NOT APPEALED AGAINST

1343. Bindingness of finding not appealed against.

“The effect and result of this determination was that the appellants claim to title also

failed by virtue of the doctrine of Lis Pendens. The appellants did not appeal against

this determination on the issue of Lis Pendens and so the determination was binding

and conclusive, such that even if they (appellants) had succeeded on other points

raised in their appeal, the same would still have failed in the Court below as indeed it

did. See: Odiase v. Agho (1972) 1 All N.L.R. (Pt. 1) 170 at 176 and Foreign finance

v. L.S.D.P.C. (1991) 1 N.S.C.C. 520.” - Per Onu J.S.C., in Alakija v. Abdulai Suit

No. S.C. 42/1994; (1998) 6 N.W.L.R. (Pt. 552) 1 at 24.

1344. Duty of Court of Appeal not to interfere with a finding or decision not

appealed against.

“If a finding or decision of a trial Court whether on an issue of fact or law is not

challenged in an appeal to the Court of Appeal, such a finding or decision rightly or

wrongly stands and must not be disturbed: See Nwabueze v. Okoye (1988) 4

N.W.L.R. (Pt. 91) 664; Oshodi v. Eyifuem (2000) 13 N.W.L.R. (Pt. 684) 332;

Timitimi v. Amabebe (1953) 14 W.A.C.A. 374, 377; Aladagbemi v. Fasanmade

(1988) 3 N.W.L.R. (Pt. 81) 129.” - Per Edozie, J.C.A., in Udo v. C.R.S. Newspaper

Corp. Suit No. CA/C/77/99; (2001) 22 W.R.N. 53 at 93; (2001) 14 N.W.L.R. (Pt.

732) 116 at 167.

1345. Finding of fact not appealed against.

“The findings referred to above are amply supported by the evidence on record and

no case has been made out in this appeal for their reversal. Interestingly, the appellant

in his several grounds of appeal with their lengthy particulars did not challenge those

findings particularly the finding that there are six ruling houses in Kerang. A

finding of fact not appealed against stands admitted and undisputed: - Commerce

Assurance Ltd. v. Alli (1992) 3 N.W.L.R. (Pt. 232) 719 at 720.” - Per Edozie,

J.S.C., in Dakur v. Dapal Suit No. CA/J/224/92; (1998) 10 N.W.L.R. (Pt. 571)

573 at 586.

1346. Findings not appealed against.

“Continuing learned counsel attacked the aspect of the judg-ment of the Court

below which found exhibits I and II not to consti-tute a valid agreement capable

of being enforced. I think I should say parenthetically that learned counsel cannot

attack that finding the way he did. The appeal at hand has not questioned that

finding. Withal the respondent has not cross appealed against the finding. In the

event it stands unchallenged and no argument will be entertained tending to

discredit it when the respondent himself has not cross appealed challenging the

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VOL. 1 PT. II APPEAL 2

decision. In the event I shall close my mind’s eyes to learned counsel’s submission

in that respect. Learned counsel concluded by urging this Court to dismiss the

whole appeal as lacking in merit.” - Per Mangaji, J.C.A., in Faro Bottling Co.

Ltd. v. Osuji Suit No. CA/J/258/99; (2002) 1 N.W.L.R. (Pt. 748) 311 at 330.

1347. Findings of fact of lower Court not appealed against.

“The above findings of fact that the respondents paid a total US $730,030.00 to

the appellant through Gilt and not US$591, 483 or US$591,500 as claimed by the

appellants was neither challenge in the Court below nor before us. I am therefore

prepared to accept that the respondents paid a total US $730,030.00 to the

appellants through Gilt as demurrage thus leaving an outstanding balance of

US$145,970.00 unpaid as against the balance of US $264,500.00 claimed by the

appellants.” - Per Iguh, J.S.C., in Alfotrin Ltd. v. A.G. Fed.Suit No. S.C. 126/

1989; (1996) 9 N.W.L.R. (Pt. 475) 634 at 662.

(85) FINDINGS OF TRIAL COURT ON DEMEANOUR OF WITNESSES

1348. Appellate Court’s attitude to findings of trial Court on demeanour

of witnesses.

“While it is true that demeanor of a witness may not be a guide to the truth, the

conclusions of a trial Judge on how a witness behaved in the box should not be

lightly disregarded.” - Per Olatawura, J.S.C., in Ige v. Akoju Suit No. S.C. 283/

1989; (1994) 4 N.W.L.R. (Pt. 340) 535 at 543.

(86) FORM OF APPEAL

1349. Proper form of appeal.

“There is a preliminary point to mention first, which was raised on the respondent’s

behalf when this appeal first came on for hearing: it was that the appeal had not

been brought in proper form and could not be entertained. It was based on the fact

that no rules have been made and no forms provided for a further appeal from a

decision of a High Court on an appeal from a Magistrate. We have already held in

Nwobiala v. Inspector-General of Police, F.S.C. 235/1960 that the point is without

substance.” - Per Bairamian, F.J. in Shehu v. Ogedengbe Suit No. F.S.C. 101/

1960; (1960) 1 N.S.C.C. 189 at 190.

(87) FORMULATION OF ISSUES FOR DETERMINATION

1350. Appellate Courts’ attitude to proliferation of issues.

“The Supreme Court and this Court has condemned the proliferation of issues.

Multiplicity of issues tend to reduce most of them to trifles. Most appeals are won on

a few cogent and substantial issues, well framed, researched and presented, rather

Paras. 1346-1350

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than on numerous trifling slips. See: Ugo v. Obiekwe and Another (1989) 1 N.W.L.R.

(Pt. 99) 566. Learned counsel gives the impression that every possible slip on the

part of the learned trial Judge constitutes an issue triable by this Court. That is very

wrong. Such an approach merely reduces the place of issue in a brief. In my humble

view, most of the issues are not only tautologous, but also verbose, amorphous and

overlap in some significant way. They are in great proliferation. See: Agu v. Ikewibe

(1991) 3 N.W.L.R. (Pt. 180) 385. Attorney General Bendel State v. Aideyan (1989)

4 N.W.L.R. (Pt. 118) 646; Adelaja v. Fanoiki (1990) 12 N.W.L.R. (Pt.131) 137;

Anon Lodge Hotels Limited and Another v. Mercantile Bank of Nigeria Limited

(1993) 3 N.W.L.R. (Pt. 284) 721.” Per Tobi, J.C.A., in Mojekwu v. Mojekwu Suit

No. CA/E/145/94; (1997) 7 N.W.L.R. (Pt. 512) 283 at 298-299.

1351. Appropriateness of issues formulated by a respondent in an appeal.

“The appropriateness of the issues formulated by the respondent is necessary because

the rule embraced and observed that in the absence of a cross - appeal, the issues

formulated by the respondent as indeed the issues distilled by the appellant must be

founded on the ground of appeal filed. See Emeghara v. Health Management

Board of Imo State & 2 Ors. (1987) 2 N.W.L.R. Pt. 56 p. 330.” - Per Omage,

J.C.A., in Afribank v. Alade Suit No. CA/K/67/99; (2000) 15 W.R.N. 16 at 24,

(2000) 13 N.W L.R. (Pt. 685) 591 at 599.

1352. Court can suo motu reformulate an issue from a ground or grounds of

appeal.

“I think it would be a misconception to argue that a Court cannot suo motu reformulate

an issue arising from a ground or grounds of appeal if the interest of justice demands

this. A Court must have the authority to do that when the grounds of appeal and

argument canvassed permit such a reformulation if the issue formulated by the

appellant or the respondent appears awkward or not well focused. In Akpan v. The

State (1995) 6 N.W.L.R. (Pt. 248) 439 at 466, Karibi Whyte, J.S.C., said briefly but

decidedly: - “I find it a little difficult to appreciate why Mr. Okonkwo thinks that the

Court cannot suo motu correct a wrongly formulated issue for determination.” The

Court of Appeal was right to have reformulated the issue for determination based on

the ground of appeal. This was to enable it to give proper consideration to the argument

advanced before it. It was in the interest of justice. The issue was well within the

compass of the ground of appeal.” - Per Uwaifo, J.S.C., in Sha v. Kwan Suit No.

S.C. 140/1994; (2000) 5 S.C. 178 at 203; (2000) 8 N.W L.R. (Pt. 670) 685 at 710-

711.

1353. Failure to formulate an issue from a ground of appeal.

“It is trite law that where an issue is not formulated from a ground of appeal the

ground of appeal is deemed to have been abandoned. Accordingly I strike out the

second ground of appeal. See: Pacers Multi Dynamic Ltd. v. MV. “Dunang Sisters”

Formulation of issues for determination Paras. 1350-1353