Appellate court's

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(23) APPELLATE COURT

428. Appeal Court’s limited jurisdiction to set aside decision of trial Court.

“Since in either way the trial is a nullity, the proper order to make by the appellate

Court is one of retrial. This is because inherent jurisdiction to set aside decisions is

limited to orders, which are nullities, and I so hold. See: Amarando Nwosu v.

Chukwuman jo Udeaja (1990) 1 N.W.L.R. (Pt. 125) 188; (1990) 1 S.C.N.J.

152.” - Per Okunola, J.C.A., in B.O.N. v. Ojeba Ltd. Suit No. CA/K/196/89;

(1993) 4 N.W.L.R. (Pt. 289) 597 at 604.

429. Appellate Court can only hear and decide on issues raised on the

grounds of appeal.

“In the second place, an Appellate Court can only hear and decide on issues raised

on the grounds of appeal filed before it and an issue not covered by any of the

grounds of appeal is incompetent and will be struck out. See: Management

Enterprises v. Otusanya (1987) 2 N.W.L.R. (Pt. 55) 179.” - Per Iguh, J.S.C., in

Alli & Ors. v. Alesinloye & Ors. (2000) 4 S.C. (Pt. I) 111 at 140; (2000) 6

N.W.L.R. (Pt. 660) 177 at 212.

430. Appellate Court evaluating evidence of witness.

“Certain established principles of law, which have always guided our Appellate

Courts, may be quickly noted. When there are materials before the Judge upon,

which he has to assess the evidence of a witness, it is not enough for the Judge to

say that he believed that witness without proper evaluation of the evidence upon

which he based his belief: - per Ademola C.J.N. in Obadamosi v. Ajao S.C. 462/

66 delivered on June 24th, 1968, quoted from Oladehin v. C.T.M.L. (1978) 2 S.C.

23. The Court must consider issues joined by properly reviewing the evidence and

making proper findings.” - Per Ayoola, J.S.C., in Saday v. Sajere Ors. Suit No.

S.C. 80/1994; (2000) 4 S.C. (Pt. I) 187 at 192; Suit No. (2000) 6 N.W.L.R. (Pt.

661) 360 at 370.

431. Appellate Court may reverse concurrent findings of act where there

is some miscarriage of justice.

“Such findings may however be reversed by a further Appellate Court if there is

some miscarriage of justice and violation of some principle of law or procedure.

The violation of some principle of law or procedure must be such an erroneous

proposition of the law that if that proposition be corrected the findings cannot

stand.” - Per Musdapher, J.C.A., in Sossa v. Fokpo Suit No. CA/A/51/97; (2000)

20 W.R.N. 89 at 98; (2001) 1 N.W.L.R. (Pt. 693) 16 at 27.

432. Appellate Court should discourage extension of issues for appeal.

“The appellate Court particularly the apex Court, should roundly discourage undue

and deliberate extension of issues to be agitated on appeal beyond the complaint

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encompassed in the grounds of appeal.” - Per Achike, J.S.C., in Dantata v.

Mohammed Suit No. S.C. 105/1997; (2000) 5 S.C. 23; (2000) 7 N.W.L.R. (Pt.

664) 176 at 208.

433. Appellate Court should not disturb concurrent findings of fact by a trial

Court when such findings are supported by evidence.

“Concurrent findings of fact by a trial Court and an appeal Court should not be

disturbed by a further Appellate Court, where such findings are supported by

evidence.” - Per Musdapher, J.C.A., in Sossa v. Fokpo Suit No. CA/A/51/97;

(2000) 20 W.R.N. 89 at 98; (2001) 1 N.W.L.R. (Pt. 693) 16 at 27.

434. Appellate Court treating issue not raised in Court below.

“An appellate Court will be most unkind, most unfair, and oppressive to a trial Court

to take an issue not raised before the trial Court and reverse the judgment based on

the new issue. An appellate Court has not such jurisdiction, unless, again, the new

issue affects jurisdiction. That is not the issue here. A successful plea of duplicity

and or misjoinder does not invariably nullify the proceedings. It depends upon the

circumstances of the case. And the guiding principle across the board in such a

matter is whether substantial miscarriage of justice has occurred as a result of the

duplicity and or misjoinder. Examining the issue from all the possible angles as I have

done, it will cause grave injustice to the prosecution to allow the 2nd appellant raise

the issue of duplicity and misjoinder; and a’fortiori give judgment in his favour on

same. And so, I discountenance the issue.” - Per Tobi, J.C.A., in Alake v. State Suit

No. CA/L/37/89; (1991) 7 N.W.L.R. (Pt. 205) 567 at 588 - 589.

435. Appellate Court will make an order for re-trial where trial Court fails to

make findings of fact.

“It was Ejiwunmi, J.C.A., (as he then was) who delivered the leading judgment of

that Court had said: - “In my opinion as it is the duty of a trial Court to make primary

findings of fact upon the issues before it, the decision of the learned Judge in awarding

judgment to the respondent is vitiated by his failure to make definite findings of fact

upon issues raised by the parties through their pleadings and the conflicting evidence

led during the trial concerning the ownership of the land in dispute.” I am in entire

agreement with him. I feel no hesitation in holding that the Court of Appeal was right

In holding that the proper order to make was to remit the ease to the High Court for

retrial before another Judge of that Court.” - Per Ayoola, J.S.C., in Sagay v. Sajere

Ors. (2000) 4 S.C. (Pt. I) 187 at 195; Suit No. S.C. 80/1994; (2000) 6 N.W.L.R. (Pt.

661) 360 at 372.

436. Appellate Court’s attitude to findings of fact by trial Court.

(1) “In this regard in the often cited case of Lewis & Peat (N.I.R.) Ltd. v. Akhimien

(1976) 1 All N.L.R. 460 at page 465 where he said: - “In order to raise an issue of

Appellate Court Paras. 432-436