Consequential orders

• Pages: 408-409

408

(3) “We are clearly of the view that the Western State Court of Appeal was in

serious error when it called on the counsel for the respondent in that Court to show

cause why the appeal should not be allowed instead of allowing the counsel for the

appellant in that Court to argue his case; in doing so, the Court of Appeal shifted the

burden from the appellant who ought to have begun to the respondent who should

only reply to the arguments of the appellant.” - Per Elias, C.J.N. in Popoola v.

P.A.G.D. Suit No. S.C.255/72; (1972) 7 N.S.C.C. 640 at 646.

(4) “We think that by framing entirely new grounds of appeal other than those filed

by the appellant and granted by the Court itself and by not allowing the appellant’s

counsel to say a word about the appeal brought before the Court, the learned Justices

of appeal were seriously in error sufficient to vitiate the proceedings and render the

judgment nugatory.” - Per Elias, C.J.N. in Popoola v. P.A.G.D. Suit No. S.C.255/

72; (1972) 7 N.S.C.C. 640 at 646.

(42) CONSEQUENTIAL ORDERS

729. Consent order and duty on party seeking to appeal against it.

“It is common ground that the affidavit evidence to be used in arguing the motion for

interim order of release of the two buses was mutually agreed with the consent of all

parties to be the affidavit evidence for argument of the interpleader summon, as it

was a consent order non of the parties and the Court could renegade, renege and or

resile from the consent order except that the consent was obtained by fraud or gross

mistake of law, as there was no objection to the admissibility of the photocopies of

the documents marked as exhibits to the affidavit evidence, 1st respondent cannot

now raise the issue on appeal without the leave of this Court to raise fresh point on

appeal not raised in the Court below and this should have been done by a cross

appeal.” – Per Onalaja, J.C.A., in I.M.B. (Nig.) Ltd. v. Dabiri Suit No. CA/L/116/

91; (1998) 1 N.W.L.R (Pt. 533) 284 at 293.

730. Court of Appeal’s power to make consequential order for the release

of the persons whose detention has been declared illegal.

“The order of the Court below dated 4th October, 2000 is hereby set aside. And

since the effect of this is to render the order of re arrest in effective I should be

pronouncing the obvious if I say that the appellants should be released immediately.

I therefore make the pronouncement without necessarily assuming any jurisdiction

in bail matters. All I do is to restore the parties to status quo as created by the order

of the Chief Judge of Anambra State, which is yet to be challenged by the process of

law. The ex parte application of the appellants pending before the Court below

should be entertained. At this juncture I need recall the time honored practice that no

application properly pending before a Court of law must be left unattended to

before making a final order or judgment as was done by the trial Judge.” – Per

Paras. 728-730 404