Duty of appellate court

• Pages: 499-503

499

929. Jurisdiction of trial Court to entertain application when appeal is

pending.

“However, in my respectful view, the true position of the law is that between the

time an appeal is filed at the trial Court but before the record is transmitted to the

Court below, the trial Court can entertain such interlocutory applications but cannot

re-open the case. In effect, when the record of proceedings has been transmitted to

the Court below whereby the Court below is seised of the matter, the trial Court

lacks every jurisdiction to take any proceeding, interlocutory or otherwise.” - Per

Onu, J.S.C., in Mohammed v. Husseini Suit No. S.C. 233/1944; (1998) 14 N.W.L.R

(Pt. 584) 108 at 141-142.

(58) DUTY OF APPELLATE COURT

930. A Court of Appeal will not interfere with the exercise of discretion by a

lower Court.

“It is the law that an appellate Court will not normally interfere with the exercise of

discretion by a lower Court merely because it would have exercised the discretion

differently if faced with a similar situation.” - Per Onnoghen, J.C.A., in Ayo v. N.I.D.B.

Suit No. CA/IL/33/99; (2000) 4 N.W.L.R. (Pt. 653) 420 at 436; (2000) 8 W.R.N.

170 at 187.

931. Amendment of title of proceedings by Supreme Court.

“Counsel for the appeal, applied for the title of the case to be altered to the “Federal

Board of Inland Revenue” and this was not opposed by Counsel for the respondents.

We granted this application in the exercise of our powers under Section 22 of the

Federal Supreme Court Ordinance.” - Per Unsworth, F.J. in Inland Revenue v.

Rezcallah (1962) All N.L.R. at 4.

932. Appeal on facts not argued below.

“The other submission made to us was that the appellant was selling as a principal

and was entitled to make a profit. This is a submission on the facts which is no longer

open to the appellant in this further appeal, having regard to the view taken by the

Courts below on the role he played in order to dupe the complainant and defraud

her.” - Per Bairamian, F.J. in Oshin v. I.G.P. Suit No. FSC. 326/1961; (1961) 2

N.S.C.C. 20 at 24.

933. Appellate Court deciding an appeal on abandoned brief of argument is

fatal.

(1) “It is fatal for an Appeal Court to decide an appeal upon the aban-doned brief of

argument of any of the parties no matter the re-sult arrived at if an appeal is lodged

against the judgment.” - Per Uwaifo, J.S.C., in Tunbi v. Opawole Suit No. S.C. 92/

1993; (2000) 2 N.W.L.R. (Pt. 644) 275 at 288; (2000) 4 W.R.N. 44 at 54.

495 Duty of appellate Court Paras. 929-933