Determination of an appeal

• Pages: 487-489

487

903. What respondent opposing application for departure from the rules

must show.

“That is why the present applicants have applied that this Court should grant them

the leave to argue the appeal on the bundle of papers compiled by the applicants. It

is for the respondents to show as they have alleged lack of correctness or authenticity

of any or all the bundle of documents so compiled and to be filed by the applicants.”

- Per Sulu-Gambari, J.C.A., in Afolabi v. Igunbor Suit No. CA/I/M.253/89; (1990)

5 N.W.L.R. (Pt. 149) 170 at 174.

(53) DETERMINATION OF AN APPEAL

904. Appellate Court is bound to base its consideration upon evidence acted

upon by the Court below.

“An appellate Court is bound to base its consideration of every appeal before it upon

legal evidence upon which the Court below acted.” - Per Onu, J.S.C., in Iweka v.

S.C.O.A. (2000) 15 W.R.N. 106 at 120; (2000) 7 N.W.L.R. (Pt. 664) 325 at 341.

905. Determination of issues between disputing parties.

“Litigation is concerned with legal rights and duties of the parties thereto. It is

concerned with facts in so far as they give rise to legal consequences. The final

resolution of dispute between parties as to their respective right or duties may involve

a determination of a number of different issues. That is to say a number of decisions

as to the legal consequence of particular facts each of which decision constitutes a

necessary step in determining what are the legal rights and duties of the parties

resulting from the totality of the facts. To determine an issue it is necessary for the

person adjudicating first to find out what are the fact and there may be a dispute

between the parties as to this. but while an issues may thus involve a dispute about

facts a mere dispute about facts divorced from their legal consequence is not an

issue. See Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1965) 2 All E.R 4 C.A.

Per Diplock, L.J (as he was then) at pp.9, 10.” - Per Obaseki, J.S.C., in Metal

Const (W.A) v. Migliore Suit No. S.C. 251/1985; (1991) 21 N.S.C.C. (Pt. I) 200 at

213; (1990) 1 N.W.L.R. (Pt. 126) 299 at 321.

906. Hearing appeals on its merit.

“The Federal Court of Appeal, Benin, was clearly in error in not hearing the appeal

on its merits. It was open to this Court to send the appeal back to that Court for their

consideration. This would, however, have led to considerable delay and consequently

injustice to the appellant who had already been in custody since 1974. Under Section

30 of the Supreme Court Act No. 12 of 1960, as amended by Act No. 42 of 1976,

this Court is empowered to exercise any power that could have been exercised by

the Federal Court of Appeal. We therefore heard the appeal on its merits and allowed

483 Determination of an appeal Paras. 903-906