Court of appeal

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(44) CONSTITUTIONAL RIGHT OF APPEAL

733. Distinction between appeals under Section 213(1) and 220(1) of the

1979 Constitution.

“In Kalu v. Mbuko (1988) 3 N.W.L.R. (Pt. 8) p. 86 at 97 Kolawole, J.C.A., said

thus: - “Although the first ground of appeal lumps together in one ground error of law

and misdirection which is irregular and improper, it is my view that an appeal lies as

of right from final decision of the High Court sitting at first instance whether the

ground of appeal involves questions of law alone or questions of facts, or questions

of mixed law and fact. That is the distinguishing feature between Sections 220(1) of

the Constitution.” - Per Musdapher, J.C.A., in Iredia v. First Bank Suit No. CA/B/

212/88; (1991) 3 N.W.L.R. (Pt. 182) 751 at 762-763.

734. Lower Court’s power to hear the procedural application to the

respondent’s Constitutional right of appeal.

“The lower Court has the powers to hear the procedural applications leading to the

actualization of the respondent’s constitutionally guaranteed right of appeal see

Ikeakwu v. Nwamkpa (1966) 4 N.S.C.C. 83 at 86 where Brett, J.S.C., stated inter

alia: - “All appellate jurisdiction is statutory and the power to adjudicate on an appeal,

by allowing or dismissing it, includes the power to decline to adjudicate on the merits

where an appeal is not properly before the Court. This Court frequently exercises

such a power. In such a case the usual course is to strike out the appeal, and although

an order dismissing it, does not thereby become a decision on the merits and does not

necessarily preclude a subsequent decision on the merits if the matter can be re

opened by an appropriate procedure.” - Per Onnoghen, J.C.A., in Mukadam v.

Akanbi Suit No. CA/IL/22/99; (2000) 19 W.R.N. 81 at 91; (2000) 13 N.W.L.R. (Pt.

685) 616 at 626.

(45) COURT OF APPEAL

735. Appeal cannot lie over ‘no decision’.

“In the consideration Section 220(1) of the Constitution is bound to be considered

which is also an issue raised in the substantive appeal because if there was no

decision this Court lacks competency and jurisdiction to entertain the appeal as

competency goes to jurisdiction Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R. page

341, Adigun v. Governor of Osun State (1995) 3 N.W.L.R. (Pt. 385) page 513

S.C.” - Per Onalaja, J.C.A., in Okehi v. I.E.A. Ltd. Suit No. CA/PH/140M/96;

(1997) 11 N.W.L.R. (Pt. 529) 431 at 437.

736. Appeal Court calling on counsel to support the decision of the lower

Court.

“There is no doubt that the procedure of calling on a respondent’s counsel to support

a judgment of the lower Court is irregular and most undesirable.” - Per Sowemimo,

J.S.C., in Anla v. Ayanbola Suit No. S.C. 228/1975; (1977) 11 N.S.C.C. 162 at 165.

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737. Appeal Court is not a forum for attacking the personality of the trial

Judge.

(1) “A ground of appeal may attack a judgment but not the Judge. Ground 4, for

instance, after alleging an error in law in that the learned trial Judge failed to place

the evidence on the “imaginary scale” went on to allege as follows:

“………………before she (the Judge) hastily stampeded herself into erroneous and

completely misguided conclusion.” The same attack on the Judge run through all the

grounds of appeal and their particulars.” - Per Ubaezonu, J.C.A., in Amojaine v.

Eguegu Suit No. CA/B/142/90; (1996) 1 N.W.L.R. (Pt. 424) 341 at 349.

(2) “An appeal Court is not a forum for attacking the person of a Judge of the lower

Court. It is a forum for attacking his judgment. In doing so, counsel must watch his

language. If this sort of practice is allowed to persist, it does not augur well for the

integrity of the entire judiciary in this country. I need not say more on this matter.” -

Per Ubaezonu, J.C.A., in Amojaine v. Eguegu Suit No. CA/B/142/90; (1996) I

N.W.L.R. (Pt. 424) 341 at 349.

738. Appeal Court’s duty not to interfere with a proper exercise of judicial

discretion by the trial Court.

“If judicial discretion has been exercised bona fide not arbitrarily or illegally by a

Court of law, an appeal Court will not ordinarily interfere with that exercise see

University of Lagos & Ors. v. Olaniyan & Ors. (1985) 1 S.C. 295. Giving the

facts of this case, it is my considered view that the trial Judge had exercised his

judicial discretion bona fide, to interfere with the orders contained in the ruling of

22nd July 1997 is to fetter the discretionary power of the learned trial Judge.” - Per

Aderemi, J.C.A., in Duwin v. Beneks Suit No. CA/L/372/97; (2000) 19 W.R.N. 117

at 165; (2000) 15 N.W.L.R. (Pt. 689) 66 at 76.

739. Appeal Court’s duty to hear and determine only issues placed before it.

“I need only reiterate that having regard to all that I have stated above, it is clear to

me that the Court of Appeal had no jurisdiction to reverse a material and fundamental

decision which was not challenged by either of the parties to the appeal before it.”-

Per Iguh, J.S.C., in Oshodi v. Eyifunmi Suit No. S.C.53/1995; (2000) 11 W.R.N. 86

at 112; (2000) 13 N.W.L.R. (Pt. 684) 298 at 333.

740. Appeal Court’s power before an appeal is entered under Sections 15,

18 and 25 of the Court of Appeal Act which deals with appeals from

interlocutory decisions, stay of execution and time for appealing respectively.

(1) “The submission of learned counsel for the respondents that the jurisdiction this

Court can exercise before an appeal is entered is to be confined to Sections 15, 18

and 25 of the Court of Appeal Act cannot be valid. I do not intend to set out the

provisions of the said Sections 15, 18 and 25. Section 15 deals with appeals from

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interlocutory decisions and Section 25, time for appealing. Section 18 deals with stay

of execution. These sections are usually, in this Court, considered together with

Order 3 rule 3(3) of the Court of Appeal Rules to see whether a similar application

for the prayer sought had earlier been made to the Court below in order for this

Court to have jurisdiction. Normally at the stage such an application is brought, an

appeal may not have been entered although already brought. In the same way, under

the proviso to Order 3 rule 6(1), an application may be entertained by this Court

when an appeal has been brought but not yet entered. It will be wrong to say that the

exercise of jurisdiction (or power) by this Court at that stage is confined to Sections

15, 18 and 25.” - Per Uwaifo, J.C.A., in Adeniji v Onagoruwa Suit No. CA/L/

110M/92; (1994) 6 N.W.L.R. (Pt. 349) 225 at 236.

(2) “There is no doubt that this Court has jurisdiction to entertain any appeal coming

to it from the lower Court by virtue of Section 219 of the 1979 Constitution. The

Court of Appeal Act 1976 and the Court of Appeal Rules 1984 as amended are all

supplemental provisions explaining the practice and procedure by which the appeals

are to be dealt with by the Court. Section 8 of the said Act makes this point very

clearly. And it seems very clear to me that under the Act; this Court has very extensive

powers in dealing with any appeal filed before it. The powers are not, as learned

counsel for the respondents submitted, limited to those in sections 15, 18 and 25 of

that Act.” - Per Uwaifo, J.C.A., in Adeniji v. Onagoruwa Suit No. CA/L/110M/92;

(1994) 6 N.W.L.R. (Pt. 349) 225 at 239.

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

“An appellate Court will not interfere with such finding of fact unless it is shown to

be perverse or unsupported by evidence (see Ebba v. Ogodo (1984) 1 S.C.N.L.R.

372). Learned counsel did not attack the finding of fact.” - Per Kolawole, J.C.A., in

Ogunbiyi v. Ogundipe Suit No. CA/I/178/92; (1992) 9 N.W.L.R. (Pt. 263) 24 at

38-39.

742. Appellate Court’s duty vis a vis the trial Court.

“The above finding which is amply supported by evidence on record is impeccable.

The learned trial Judge heard evidence called by both sides. He believed the

Prosecution’s witnesses and disbelieved those of the defence. This Court is guided

by rules. It is to review the case before it by way of rehearing. It is the Court of first

instance that sees witnesses, sifts evidence, evaluates the same and except it fails, in

its duty of utilising the advantage of seeing those witnesses, the Court of Appeal

abides by its finding and should be loathe to interfere unless such findings are perverse.

Rowland Omorogie & 3 Ors. v. Idugiemwanye & Ors. (1985) 2 N.W.L.R. (Pt. 5)

41; (1985) 6 S.C. 150 at 151.” - Per Edozie, J.C.A., in Kanu v. State Suit No. CA/

PH/103/91; (1993) 9 N.W.L.R. (Pt. 317) 304 at 317-318.

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