Appellants motion

• Pages: 203-203

203

(2) “In Bello v. Attorney General of Oyo State (1986) 5 N.W.L.R. (Pt. 45) 828 this

Court held that deprivation by a State of an appellant’s right to prosecute his appeal

in the Court of Appeal and to have the appeal determined on the merits by that Court

was unconstitutional and legally wrongful. In the exercise of its judicial powers a

Court of law should adhere to Constitutionality. It should not condone the commission

by a State of Constitutional wrong nor should it be an accessory after the fact to the

commission of unconstitutionality. The Court of Appeal, in deciding whether to

strike out the plaintiff’s appeal or to order a retrial, ought to have been guided by

the principle of adhering to Constitutionality. It seems to me that striking out the

plaintiff’s claim, as the Court of Appeal did, was tantamount to the condonation by

the Court of Appeal of the Constitutional wrong committed by the Kaduna State.

That Court was therefore wrong in making the order striking out the claim.” - Per

Oguntade, J.C.A., in Akaide v. State Suit No. CA/J/61/94; (1996) 8 N.W.L.R.

(Pt. 468) 525 at 531.

(3) “The facts of this appeal are similar to those in Engineering Enterprise v.

Attorney-General of Kaduna State (supra). The appellants had been convicted

of the offence of culpable homicide and sentenced to death. They have a

constitutional right to appeal to have the judgment scrutinized to determine whether

or not the trial judge was right in the conviction of the appellants. The disappearance

of the evidence of all the prosecution witnesses has disenabled this Court from

considering the appeal on its merits. This was not through the fault of the appellants.

It seems right to follow the decision in Engineering Enterprise v. Attorney-

General of Kaduna State (supra) in the circumstances.” - Per Oguntade, J.C.A.,

in Akaide v. State Suit No. CA/J/61/94; (1996) 8 N.W.L.R. (Pt. 468) 525 at 531-

532.

426. Duty of appellate Court.

The appellate system is to correct the errors made by the lower Court. I do not see

that it is part of our duty to pronounce that a Court which had not exercised

jurisdiction in fact has no jurisdiction.” – Per Oguntade, J.C.A., in Gomwalk v.

Mil. Adm. Plateau State Suit No. CA/J/105/96; (1998) 7 N.W.L.R. (Pt. 558) 413

at 420.

(22) APPELLANTS MOTION

427. Respondent has no standing to support appellant’s motion where a

cross-appeal was not filed.

“I agree with Mr. C.O. Akpamgbo, S.A.N. that the 4th 7th defendants who are

respondents in this appeal, and having not filed a cross appeal, cannot be heard in

support of the plaintiff’s motion. They, having not made any claims against 1st 3rd

and 8th defendants, lack standing in respect of the relief’s sought.” - Per Karibi-

Whyte, J.S.C., in Adenuga v. Odumeru Suit No. S.C.43/2000; (2001) 2 N.W.L.R.

(Pt. 696) 184 at 196.

Appellant’s motion Paras. 425-427