Appeal

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Court of Appeal in Clack v. Wood (supra) pursuant to Order LVIII mentioned in

that case.” - Per Sowemimo, J.S.C., in Metal Const. (W.A.) Ltd. v. Migliore Suit

No. S.C.35/1979; (1979) 12 N.S.C.C. 145 at 151.

(2) “A Court of Appeal has an inherent power to amend the record of the trial Court

so as to comply with the facts proved before that Court and decision given by it. This

is a very necessary power which the Appeal Court always exercises if and when

necessary to prevent the occurrence of substantial injustice; whether the required

amendment be formal (as in Divisional Chief Gbogbolulu of Vakpo v. Head

Chief Hodo (1941) 7 W.A.C.A. 164) or quasi-substantial (as in Clark v. Wood)

(1881-2) 9 Q.B.D. 276).” - Per Sowemimo, J.S.C., in Metal Const. (W.A.) Ltd. v.

Migliore Suit No. S.C./35/1979; (1979) 12 N.S.C.C. 145 at 150.

(3) “The record is at most a summary in narrative form of what the Judge understood

the witness to say, and it may be to some extent inaccurate or incomplete, but we

are unable to go as far as the applicants on the evidence before us, and accept it as

proved that the evidence given by the witness was exactly what the applicants now

stated before us. In one of the passages complained of, the first applicant himself

was unable to tell us exactly what he alleged Chief Obikoro said in the High Court.

He was content to say that what the witness said was “to the following effect.” We

feel it will be a very dangerous precedent for the Court to accept these words as the

evidence given by the witness. In exceptional cases as for instance where both

parties are agreed, or where there is conclusive evidence to show that what was

recorded by the trial Judge was not what the witness said, we shall be willing to

consider exercising the inherent powers of the Court to amend the record.” - Per

Ademola, C.J.N. in Akinyede v. Opere Suit No. S.C.216/1967; (1967) 5 N.S.C.C.

299 at 301.

(15) APPEAL

94. Aim and functions of particulars of grounds of appeal alleging error in

law or misdirection.

“Now, it should be realized that particulars of the error alleged in a ground of appeal

are intended to highlight the complaint against the judgment on appeal. They are the

specification of the error or misdirection in order to make clear how the complaint is

going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of

the judgment. Particulars are not to be made independent of the complaint in a

ground of appeal but ancillary to it: see Globe Fishing Industries Ltd. v. Coker

(1990) 7 N.W.L.R. (Pt. 162) 265 at 300 per Akpata, J.S.C., It has been said that the

whole purpose of grounds of appeal is to give to the other side notice of the case it

has to meet in the appellate Court and so the errors of law or misdirection complained

of must be sufficiently identified in the grounds of appeal: see N.I.P.C. Ltd. v.

Thompson Organisation (1969) 1 All N.L.R. 138 at 142 per Lewis, J.S.C., It is the

particulars of the error of law or misdirection alleged that will ensure that the ground

51 Appeal Paras. 93-94

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of appeal is sufficient set out.” Per Uwaifo, J.S.C., in Osasona v. Ajayi (2004) 14

N.W.L.R. (Pt. 884) 527 at 545.

95. Aim of ground of appeal and how couched.

“Particulars are not to be made independent of the complaint in a ground of appeal

but ancillary to it: see Globe Fishing Industries Ltd. v. Coker (1990) 7 N.W.L.R.

(Pt. 162) 265 at 300 per Akpata, J.S.C., It has been said that the whole purpose of

grounds of appeal is to give to the other side notice of the case it has to meet in the

appellate Court and so the errors of law or misdirection complained of must be

sufficiently identified in the grounds of appeal: see N.I.P.C. Ltd. v. Thompson

Organisation (1969) 1 All N.L.R. 138 at 142 per Lewis, J.S.C., It is the particulars

of the error of law or misdirection alleged that will ensure that the ground of appeal

is sufficiently set out.” Per Uwaifo, J.S.C., in Osasona v. Ajayi (2004) 14 N.W.L.R.

(Pt. 884) 527 at 545. Application of Order 3 rule 2(1) of the Court of Appeal Rules

1981 and the need to hear the respondent. “I have earlier on in this Judgment

identified two issues arising from the defendant’s cross-appeal. They relate to the

failure of the Court of Appeal to resolve any of the issues arising from the seven

grounds of appeal filed by the defendant before it and the question of that Court

raising suo motu the issue of jurisdiction and resolving it without giving counsel a

hearing.

I have already held that the Court of Appeal fell into grave error and came to a

wrong conclusion that the trial Court had no jurisdiction. As a general rule an appellate

Court will not consider nor determine any question not in issue in the appeal. However

by Order 3, Rule 2(6) the Court in dealing with the appeal shall not be confined to the

grounds set forth by the appellant “provided that the Court shall not if it allows the

appeal rest its decision on any ground not set forth by the appellant unless the

respondent has had sufficient opportunity of contesting the case on that ground.”

Per Akpata, J.S.C., in Katto v. C.B.N. (1991) 9 N.W.L.R. (Pt. 214) 126 at 149.

96. Application of Order 6 Rule 10 of the Court of Appeal Rules to a

respondent who intends to support appeal.

“(1) When we allowed Mr. Akuneme, learned Director of Civil Litigation, Ministry

of Justice, Imo State leave to make oral submission without filing a Respondent’s

brief, we acted under the belief that he was to support the ruling of the Court of trial.

Order 6 Rule 10 of the Court of Appeal Rules, 1984 provides that “Where an

appellant fails to file his brief within the time provided for in rule 2 above, or within

the time as extended by the Court, the respondent may apply to the Court for the

appeal to be dismissed for want of prosecution. If the respondent fails to file his

brief, he will not be heard in oral argument except by leave of the Court. Where an

appellant fails to file a reply brief within the time specified in the rules, he shall be

deemed to have conceded all the new points or issues arising from the Respondent

brief.” Section 32 of the Court of Appeal Act, 1976 and Order 1 Rule 2 of the Court

Paras. 94-96 52

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of Appeal Rules, 1981 define an appellant to mean any person who desires to appeal

or appeals from a decision of the Court below or who applies for leave to so appeal,

and includes a legal practitioner representing such a person in that behalf. “The

National Electoral Commission and the Attorney-General of Imo State who were

the 2nd & 3rd defendants with the Appellants as first defendant against whom the

Court below gave judgment did not file a Notice of Appeal against the said judgment

and could not be heard to make oral submission to ask that the appeal be allowed as

the Director of Civil Litigation argued on their behalf. If a person is aggrieved by the

decision of a Court, he must, in order be heard in the Court of Appeal that the

judgment be reversed in his favour file a Notice of Appeal with grounds upon which

he relies that the appeal should be allowed. The second and third defendants did not

file a Notice and ground of appeal and to that extent they cannot be heard at all even

by leave of the Court of Appeal. The second and third defendants are not respondents

to whom Order 6 Rule 10 of the Court of Appeal refers. The leave granted to the

Director of Civil Litigation to address the Court orally under Order 6 Rule 10 aforesaid

is set aside and I shall discountenance all the submissions made to us.” Per Kolawole,

J.C.A., in Nwarie v. Amauwa (1991) 8 N.W.L.R. (Pt. 207) 68 at 81.

(2) “If a person is aggrieved by the decision of a Court, he must, in order to be heard

in the Court of Appeal that the judgment be reversed in his favour file a Notice of

Appeal with grounds upon which he relies that the appeal should be allowed. The

second and third defendants did not file a Notice and ground of appeal and to that

extent they cannot be heard at all even by leave of the Court of Appeal. The second

and third defendants are not respondents to whom Order 6 Rule 10 of the Court of

Appeal refers. The leave granted to the Director of Civil Litigation to address the

Court orally under Order 6 Rule 10 aforesaid is set aside and I shall discountenance

all the submissions made on us. In his own oral submission, learned counsel for the

plaintiff Mr. Dike adopted the Respondent’s Brief of argument and in amplifications

thereof counsel submitted that when the Appeal Tribunal operated as it did in the

proceedings over which the respondents now seeks four declaratory reliefs and four

ancillary reliefs, it did not operate as a High Court envisaged by section 75 of the

Local Government (Basic Constitutional and Transitional Provisions) Act 1990

(Decree No. 15 of 1989) but it operated as a Court of Appeal.” Per Kolawole,

J.C.A., in Nwarie v. Amauwa (1991) 8 N.W.L.R. (Pt. 207) 68 at 81.

97. Attitude of appellate Court to ascription of probate value to evidence by

trial Court.

“It is trite law that findings of primary facts are matters peculiarly within the

competence of the Court of trial - the assessment, evaluation, appraisal of evidence

emanating therefrom and the ascription of probative values thereto being primarily

and pre-eminently that of the trail Court and any interference by an appeal Court

therewith is by law, confined to narrow and limited dimensions. See Chief Ebba v.

53 Appeal Paras. 96-97