Discontinuance of action on appeal

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is so substantial as to occasion a miscarriage of justice that an appellate Court is

bound to interfere. See Odukwe v. Obunbiyi (1998) 8 N.W.L.R. (pt. 561) 339:

Onajobi v. Olanipekun (1985) 2 S.C. 156 at 163; (1985) 4 N.W.L.R. (Pt. 2) 156;

Oje v. Babalola (1991) 4 N.W.L.R. (Pt. 185) 267 at 282; Anyanwu v. Mbara

(1992) 5 N.W.L.R. (Pt. 242) 386 at 400. Nothing has emerged from the appeal to

show that the failure by the Court of trial to remit to the appellate Courts documents

tendered before it has occasioned any miscarriage of justice. The defendants were

at liberty to insist that such documents be included, as part of the record of proceedings

but it does not appear they did so. I see no merit in the various view points agitated

under this issue. Having briefly considered them seriatim let me deal with the crucial

question as to whether the plaintiffs proved their case to entitle them to judgment.”

- Per Edozie, J.C.A., in Nkoko v. Akpaka Suit No. CA/PH/206/97; (2000) 7 N.W.L.R.

(Pt. 664) 225 at 238 – 239.

(54) DISCONTINUANCE OF ACTION ON APPEAL

911. Can appeal lie to get rid of an advantage obtained before discontinuance

of a suit?

“When an advantage has been obtained by a plaintiff in a suit before it was

discontinued, an aggrieved party who has an arguable issue in order to get rid of that

advantage which indeed is a disadvantage to him is entitled to pursue that appeal. It

is a different situation if in an appeal there is nothing left to be achieved and no

subsisting order of Court which affects the appellant that would need to be dealt

with; See: Ogbonna v. The President (1997) 5 N.W.L.R. (Pt. 504) 281 at 287. That

is not the position here. The appellant is entitled to complain that it has at least been

hamstrung by the ruling in question in the running of its affairs as regards ensuring

the maintenance of its business principles and edicts, among other objectives.” - Per

Uwaifo J.C.A., in Shell Pet. Dev. Co. v. Lawson-Jack Suit No. CA/PH/214M/97;

(1998) 4 N.W.L.R. (Pt. 545) 249 at 269.

912. Discontinuance of action on appeal.

“It is also true that when an action is withdrawn an appeal in that action becomes

ipso facto vacated - see Onybeare v. Lewis (supra). It is generally taken that the

appeal becomes no longer necessary, as it will serve no purpose since the substance

has gone. It would ordinarily amount to an academic exercise, and the Courts must

always avoid indulging in academic exercise for example Adebayo v. Babalola

(supra).” - Per Bulkachuwa, J.C.A., in Min. for Works v. Tomas (Nig) Ltd. Suit

No. CA/A/82/2000; (2002) 2 N.W.L.R. (Pt. 752) 740 at 765.

485 Discontinuance of action on appeal Paras. 910-912