Case made by a party at trial court
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383
Agusiobo v. Okagbue Suit No. CA/E/115/97; (2001) 15 N.W.L.R. (Pt. 737) 502 at
527.
(2) “The fact of the present case and the circumstances that led to the accident to my
mind falls within the definition (supra). Trying to overtake a vehicle in front without
making sure that it is clear to do so and on a sloppy road that is not straight as such
knowing fully well that the vehicle trying to overtake is fully loaded is failure to
exercise due care. On the defence of inevitable accident which learned counsel for
the appellants argue was not considered by the learned trial Judge, learned counsel
for the respondent has submitted that the defence is bound to fail in the circumstances
of this case. He placed reliance on Hooper v. Haynes (1973) A.C. 17, Backway v.
South Wales Transport (1950) 1 All E.R. 392, Buasted v. Cozensand Sutcliffe
CA/I/27/92; (1996) 2 N.W.L.R. (Pt. 429) 218 at 227.
703. When to file an appellant’s brief.
“An appellant by virtue of the Practice Direction issued by the President of the Court
of Appeal is required to file his brief along wish the notice of appeal and serve same
on the respondent. In the instant case, the appellant contravened this requirement by
moving an application to file the appellant’s brief on the day just before the conclusion
of the appeal.” Per Okunola, J.C.A., in Apari v. Hose (1999) 5 N.W.L.R. (Pt. 604)
541 at 544.
(36) CASE MADE BY A PARTY AT TRIAL COURT
704. Nature of appeal and bindingness on parties of case made at the trial
Court.
“The foregoing complaints do not appear to reflect the case of the appellant in the
Court below as pleaded. A party is not permitted on appeal to change the case he
had made at the trial Court since an appeal is simply a continuation of the case put
forward in the Court of first instance. See: Oredoyin v. Arowolo (1989) 4 N.W.L.R.
(Pt. 144) 172; Edebiri v. Edebiri (1997) 4 N.W.L.R. (Pt. 498) 165 at 174.” - Per
Edozie, J.C.A., in Dakur v. Dapal Suit No. CA/J/224/92; (1998) 10 N.W.L.R. (Pt.
571) 573 at 588.
(37) COMPETENCY OF APPEAL
705. Appeal when not competent.
“In the sense l was discussing above, an appeal is “non-appeal” or “no appeal” if it is
not initiated by “due process of law and upon fulfillment of any condition precedent to
the exercise of jurisdiction.” - Per Nsofor, J.C.A., in Olowokere v. African
Newspapers Suit No. CA/I/34/92; (1993) 5 N.W.L.R. (Pt. 295) 583 at 599.
379 Competency of appeal Pages. 702-705
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