Failure to cross appeal against a specific finding

• Pages: 633-634

633

(71) FAILURE TO CROSS APPEAL AGAINST A SPECIFIC FINDING

1168. Appeal against the decision of the Court below on the claim for

declaration but none against a counter claim.

“While the trial Court found for the appellants on their counter claim the Court below

which allowed the respondents appeal to it founded Exhibit ‘C’, set aside the order

of counterclaim although dismissing the claim for trespass but granting an injunction

to them (appellants). The appellants as later transpired, have appealed against the

decision of the Court below to this Court on the claim for declaration, etc. but none

against the counter claim as no grounds of appeal were filed attacking that aspect

(counter claims) of the case. Not having done so I take it that appellants intended to

be bound by the decision of the Court below wherein that Court held: “Finally, it

does appeal to me on what I have been saying that the granting of a declaration on

the counter claim cannot stand. I agree with the submission in the appellant’s brief

that the evidence led by the respondent in favor of the declaration is vague not

cogent enough to enable them to succeed.” The result of all I have been saying is

that in so far as the counter claim is concerned, the parties having joined issues that

the land claimed is that on Exhibit ‘C’, no more will be said regarding it in as much as

no grounds of appeal were filed against that part of the judgment of the Court below.

The original grounds of appeal were struck out while the appeal was argued on the

general ground only. As matters stood since, the counter claim which in essence is a

cross action, was dismissed and was not the subject of an appeal, the appellants got

nothing.” - Per Onu, J.S.C., in Obawole v. Coker Suit No. S.C.113/1988; (1994) 5

N.W.L.R. (Pt. 345) 416 at 440-441.

1169. Failure to cross appeal against specific findings of the lower Court.

“With due respect to the learned counsel, it was all a wasted effort by her. The

respondent having failed to appeal against specific findings by the Court, it cannot be

heard to complain in respect of these findings. As far back as 12th May, 1959, the

Federal Supreme Court, per Ademola C.J.F. in A.G. Ijele v. A.G. Leventis Limited

(1959) 4 F.S.C. 108 at 112, made the point that a party cannot be heard on appeal on

a particular finding of the trial Court against which he has not appealed. If I may

quote the then Chief Justice of the Federation, “the respondent has not appealed

against the learned Judge’s finding on the issue and whether it is right or wrong, it

cannot now be heard to question it.” In effect, a Court of Appeal will not consider

any grounds, which have not been brought either by an appeal, cross-appeal or by

notice of contention that the judgement should be affirmed or varied on other grounds.

This was firmly stated by Obaseki, J.S.C., in I.O. Oyesan v. Y.O. Sanusi (1984) 4

S.C. 115 at page 123, thus: “Learned counsel then urged on this Court, the Supreme

Court to consider, if necessary, the other grounds of objection raised in the course of

the hearing before the Court of Appeal and repeated before us. I have earlier on

referred to these grounds of objection and would observe that there is no cross-

appeal before this Court. Unless there is an appeal or cross-appeal or notice of

629 Failure to cross appeal against a specific finding Paras. 1168-1169