CORAM
UMARU ATU KALGO JUSTICE, SUPREME COURT
PARTIES
TIMIPA OKPONIPERE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent raised objection to the competence of the appellant, though a legal practitioner, in endorsing court processes and addressing the court. The trial Court overruled the objection, and the Respondent brought an application at the lower court for extension of time to appeal and leave of court to appeal, the court granted the Respondent’s application, this prompted the Appellant to appeal to the Supreme Court.
HELD
Appeal dismissed
ISSUES
Whether with the facts deposed to in the counter affidavit and further counter affidavit to oppose the application, the court below was right in the way it handle the respondent’s application.
RATIONES DECIDENDI
APPEAL-AN APPEAL IS NOT A RETRIAL BUT A REHEARING
‘The proceedings in an appeal is by way of rehearing to enable the appellate court evaluate the evidence that has been adduced’-J.A Fabiyi(JSC)
FORMULATION OF ISSUES – PRINCIPLE WHICH GOVERNS THE FORMULATION OF ISSUES BY THE APPEAL COURT
‘The principle which governs the formulation of issues for determination is that a number of grounds could where appropriate formulated into a single issue running through them. Issues formulated for determination must not outnumber the grounds of appeal contained in the Notice of Appeal for any reason. Such issues in proliferation are ordinarily liable to be discountenanced by the court leading the appellate court leading the appellate court to formulating or reformulating in appropriate cases, issues for determination of the appeal before it. Ordinarily, once the number of issues formulated from the Grounds of appeal are more in number than the grounds, it portends a danger that some of the issues are certainly outside the grounds of appeal and therefore will not be related to each other.’-Olukayode Ariwoola(JSC)
GROUNDS OF APPEAL – WHAT IS OR ARE THE GROUNDS OF APPEAL
‘In other words, a ground of appeal is the reason why the decision of the inferior court is considered wrong by the aggrieved party’-Olukayode Ariwoola(JSC)
AFFIDAVIT – WHAT SHOULD BE THE CONTENT OF AN AFFIDAVIT
‘Ordinarily, on what an affidavit and counter affidavit should contain, the legal position is no longer disputable and it is clear, that the law requires as provided in Section 86 and 87 of the Evidence Act that, it shall contain only a statement of fact and circumstances derived from personal knowledge of the deponent or information which he believes to be true and shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion’-Olukayode Ariwoola(JSC)
CROSS APPEAL- EFFECT OF CROSS APPEAL
‘Generally, an appeal which ordinarily includes a cross appeal is a resort to a superior court to review the decision of an inferior court and find out whether on the facts placed before it and applying the relevant and applicable law, the inferior court has come to a right or wrong decision,’-Olukayode Ariwoola(JSC)
DETERMINATION OF APPEAL- WHAT DETERMINES AN APPEAL?
‘There is no doubt and it is trite law that an appeal is determined by the appeal court base on the issues and not on the grounds. But issues to determine an appeal must be derivable from competent grounds of appeal properly crouched from the ratio decidendi of the decisions of the court being appealed against.’-Olukayode Ariwoola(JSC)
CASES CITED
Sanusi V Ayoola(1992)9 NWLR(pt.265)275Joseph Saliba V Rood Yassin (2002)3 SCM 95/109AIB Ltd V IDS Ltd & Ors(2012)5ON SC QR 434Ajayi V Anretiola & Ors(1992)8 NWLR (pt.258)139,(1992)10, SCNJ 1(1992) LPELR 1730Nwankwo & Ors V M.Yar’adua & Ors(2010)12 NWLR (pt. 1209)518, (2010)2 LPELR 2109Duwin Pharmaceutical & Chemical CO.Ltd V Beneks P&C Ltd & Ors(2008)4 NWLR (pt.1077)376 (2008)1-2 SC 68,(2008)LPELR 974,Bayero V Mainasara & Ors (2006)8 NWLR (pt.952)391(2006) LPELR 758Oyekan V Akinrinwa(1996)7 NWLR (pt.459)218Chief A.Akpan V Senator Effiong Bobn & Ors(2010)LPELR 376A.G Oyo State & Anor V Fairlakes Hotel Ltd(1988)5 NWLR(pt.92)56Oredoyin & Ors V Arowolo & Ors (1987)3 NWLR(pt.114) 172 at 187Chief FRA Williams V Daily Times of Nig.Ltd(1990)1,NWLR (pt.124)1 at 54Olaleye V The State(1991)1 NWLR(pt.170)208 at m718Azatse V Zegcor (1994)5 NWLR (pt.342)76 at 83Idika V Erisi (1988)2 NWLR(pt.78)503 at 578Ishaya Bamaiyi V The State & Ors(2001)4 SC(pt.1)18,(2001) LPELR 731Osuji V Ekeocha(2009)ALL FWLR(pt.490)614 at 648
STATUTES REFERRED TO
EVIDENCE ACT