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In appeals, develop your issues from your grounds of appeal.

Chinua Asuzu, Brief-Writing Master Plan (Partridge, 2022), 568–580.

Published

3 months ago

February 3, 2024

Stella Charles Akupue

In appeals, develop your issues from your grounds of appeal.

In the Nigerian appellate context, an issue “is a substantial question of law or of fact or both arising from the grounds of appeal … which when resolved one way or the other will affect [the] result of the appeal.” Imonikhe v Attorney General of Bendel State [1992] 6 NWLR (Part 248) 396 (SC), 407B–C (Nnaemeka-Agu JSC); Husseni v Mohammed [2015] 3 NWLR (Part 1445) 100 (SC), 125F–G (Ngwuta JSC).

It’s in the grounds of appeal, not in the issues for determination, that you complain about the conduct of the court below. In the grounds of appeal, you complain of the lower court’s errancy or truancy from evidence, fact, or law. In the issues for determination, you raise fundamental, preferably doctrinal questions designed to elicit answers ultimately exposing the lower court’s error.

Distill one issue from several grounds.

Ideally in Nigerian appellate practice, you should distill one issue from a combination of several grounds of appeal. Your issues must never be more than your grounds; instead, they should be fewer. Conceivably, issues could be the same number as grounds, but this should be extremely unusual, not to mention suspect from the perspective of the justices, who painfully “tolerate equal number of grounds and issues.” Michael v Bank of the North [2015] 12 NWLR (Part 1473) 370 (SC), 413C–D (Ngwuta JSC).

Issue formulation in appeals must be circumscribed, guided, and limited by and “fall within the scope of the grounds of appeal.” Adelaja v Fanoiki [1990] 2 NWLR (Part 131) 137 (SC), 148E (Karibi-Whyte JSC).

The Nigerian Supreme Court’s decision in Anie v Uzorka [1993] 8 NWLR (Part 309) 1 (SC), 16B–E (Onu JSC) is authority for at least two propositions: (1) Formulating more issues than grounds goes against the grain of principle; and (2) Even formulating as many issues as grounds (one issue for every ground of appeal) is generally undesirable and often unnecessary—tolerable only in the rarest cases.

Indeed, “three or four grounds of appeal may raise only one issue in the appeal, and it does not help the appellant to set out all the four grounds of appeal (together with their particulars) as issues in the appeal.” Madagwa [1988] 5 NWLR (Part 92) 60 (SC), 69H–70A (Craig JSC).

What the Supreme Court Rules require is for appellate litigants “to present an intelligent appraisal of what [they] consider to be the important question or questions which [they] want[] this Court to decide. Those questions must be concise in form and should be based on the grounds of appeal already filed.” Madagwa [1988] 5 NWLR (Part 92) 60 (SC), 70A–B (Craig JSC).

When a party states more issues than grounds, the court may scrutinize the issues and strike any issue not derived from any ground of appeal. Roe Ltd v University of Nigeria [2018] 6 NWLR (Part 1616) 420 (SC), 430C (Galinje JSC).

Rootless issues are useless.

No matter how handsomely phrased or how brilliantly argued, an issue not rooted in a ground of appeal is “worse than useless,” Ugo v Obiekwe [1989] 1 NWLR (Part 99) 566 (SC), 580C (Nnaemeka-Agu JSC), and is “incompetent,” Amadi v Attorney General of Imo State [2017] 11 NWLR (Part 1575) 92 (SC), 108C (Eko JSC).

Not every fact in dispute, and indeed not every ground of appeal, will raise or sustain an issue for determination. Standard Consolidated v Katonecrest [1986] 5 NWLR (Part 44) 791 (SC), 799C–D (Nnaemeka-Agu JSC).

“The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favor of the appellant, will result in a verdict in his favor.” Standard Consolidated v Katonecrest [1986] 5 NWLR (Part 44) 791 (SC), 799D (Nnaemeka-Agu JSC).

So delete also-ran and wannabe arguments, complaints, errors, grounds, and issues: “Strike for the jugular, and let the rest go.” Oliver Wendell Holmes, Speeches, 1934, 77.

The fewer your issues, the better your chances.

Proliferating issues suggests that you lack confidence in any one of those issues. If you don’t have confidence in your issues, why should the judge? Your strong arguments “will shine brighter if you do not undermine your overall credibility by advancing indefensible positions. … Littering your writing with every argument you can conceive of risks diluting the force of whatever strong arguments you have in your favor.” Murray & DeSanctis, Advanced Legal Writing, 8.

Even Respondent’s issues must stay grounded.

Even if you’re for the respondent, your issues must emanate from the grounds. As the respondent’s attorney, you’re not filing any grounds of appeal. Both sides’ issues must spring from the grounds of appeal filed by the appellant. In formulating their issues, appellants as well as respondents are restricted to the grounds of appeal. In appeals, all the issues, in whosever brief, must stem from the grounds of appeal. So the respondent’s issues must spring from the grounds of appeal.

In Nigeria v Nwosu [2016] 17 NWLR (Part 1541) 226 (SC), 275F (M.D. Muhammad JSC) the Nigerian Supreme Court held that a respondent who has neither cross-appealed nor filed a respondent’s notice cannot raise “issues not traceable to [the grounds in] the extant notice of appeal” filed by the appellant.

“[N]one of the four issues for determination as formulated by the respondents” in Atanda v Ajani [1989] 3 NWLR (Part 111) 511 (SC) pertained to the grounds of appeal. In that case, the Supreme Court of Nigeria stated that the respondents could not formulate issues not rooted in the grounds of appeal (543G–544A [Nnaemeka-Agu JSC]).

Of course, if the respondents had cross-appealed, then they could, indeed should, formulate issues from their grounds of cross-appeal.

The almighty court is equally restricted to the grounds.

Even the court itself is restricted to the grounds of appeal and the issues constructed from them. In Iyaji v Eyigebe, [1987] 3 NWLR (Part 61) 523 (SC), 528H, Oputa JSC said that “an appellate court should ordinarily confine itself to the grounds filed and canvassed before it and to the issues that naturally arise out of those grounds. Any supposed issue or question for determination which has no reference to any ground of appeal should not be considered.”

Don’t copy your grounds and paste onto your issues.

Developing issues from grounds is no excuse to copy from the grounds or their particulars and paste onto the issue statement. In Madagwa, [1988] 5 NWLR (Part 92) 60 (SC), Craig JSC complained that in phrasing his issues, “the appellant merely repeated word-for-word what he had set out as ‘particulars’ in his ground of appeal.” Craig JSC considered this practice “a misconception” of the Supreme Court rule requiring appellants to state the issues arising in the appeal: Issues in the appellate context “are not the same thing as particulars of ground of the appeal.” 69G–H).

Both grounds and issues must attack the “part of the decision complained of.”

In The Gongola Hope [2007] 15 NWLR (Part 1056) 189 (SC), 205D, Musdapher JSC said, “Issues for determination should be distilled from the grounds or ground of appeal and must naturally flow from the essential complaint in the grounds or ground of appeal.”

Grounds of appeal, and hence issues for determination since issues arise from grounds, must be “limited to and circumscribed by” the part of the decision complained of on the appellant’s notice of appeal. Kosile v Folarin [1989] 3 NWLR (Part 107) 1 (SC), 8G–H (Nnaemeka-Agu JSC).

“Any ground or issue outside the statement of ‘part of the decision complained of’ is a useless surplusage.” Kosile v Folarin [1989] 3 NWLR (Part 107) 1 (SC), 8G–H (Nnaemeka-Agu JSC).

Grounds must challenge the rationes decidendi below.

As the fount of issues, grounds of appeal should attack or challenge the rationes decidendi of the decision appealed. Egbe v Alhaji [1990] 1 NWLR (Part 128) 546 (SC), 590A (Karibi-Whyte JSC).

“The law is that an issue for determination must be distilled from the grounds of appeal, which must in turn be predicated upon the ratio decidendi” of the decision appealed. Isaac v Imasuen [2016] 7 NWLR (Part 1511) 250 (SC), 268E–F (Kekere-Ekun JSC).

A ground of appeal should represent a complaint against a decision taken below against the appellant, which the appellant believes was wrongly taken. Saude v Abdullahi [1989] 4 NWLR (Part 116) 387 (SC), 429G–H (Oputa JSC).

“On no account must there be a disconnect between the grounds of appeal and the controversy between the parties.” PDP v Sherrif [2017] 15 NWLR (Part 1588) 219 (SC), 260F (Rhodes-Vivour JSC).

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A ground of appeal should complain about decisions, not insignificant lower-court errors.

Every ground must go to an issue.

Every ground, either alone or in community with one or more other grounds, must go to an issue. In Kayode, [2016] 7 NWLR (Part 1511) 199 (SC), 218B–C, Ariwoola JSC said that “any ground of appeal from which no issue has been distilled is deemed abandoned and no argument on [that] ground can be countenanced by the court.”

In Emeka v Chuba-Ikpeazu, [2017] 15 NWLR (Part 1589) 345 (SC), 365A–B (Ogunbiyi JSC) the Supreme Court didn’t hesitate to strike a ground of appeal from which no issue was formulated.

Every issue must spring from competent and subsisting grounds.

Every issue must come from one or more valid grounds. An issue for determination developed from an incompetent ground is a worthless nonissue and a nonstarter and must be struck; further, “arguments raised or preferred” on that issue are “of no moment and must also be discountenanced.” Atanda v Kwara State Commissioner for Lands & Housing [2018] 1 NWLR (Part 1599) 32 (SC), 50D (Sanusi JSC).

Issues premised on incompetent, invalid, or expunged grounds are incompetent. “Issues for determination predicated on incompetent grounds of appeal suffer the same fate. They are also incompetent.” Labor Party v Bello [2017] 2 NWLR (Part 1548) 145 (SC), 170E–F (Kekere-Ekun JSC).

An issue must flow from competent and subsisting grounds of appeal. If its supportive grounds are struck, the issue dies, “since no issue [for] determination can stand independently,” with no live ground to sustain it. Omoyele [2017] 1 NWLR (Part 1547) 341 (SC), 370A–B (Sanusi JSC).

A court lacks jurisdiction to entertain or reopen any argument or issue purporting to rest on a ground that has been struck. Ikpeazu v Otti [2016] 8 NWLR (Part 1513) 38 (SC), 94C–D (Galadima JSC).

Don’t blend competent with incompetent arguments.

Further, “arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped … with those [on] competent grounds of appeal or issues for determination.” Ikpeazu v Otti [2016] 8 NWLR (Part 1513) 38 (SC), 95A (Galadima JSC).

The court shouldn’t be subjected to the messy task of “sift[ing] the chaff from the grains,” an exercise likely to degenerate into, and embroil the court in, controversy about which submissions were in respect of valid grounds and which in respect of invalid grounds. Ikpeazu v Otti [2016] 8 NWLR (Part 1513) 38 (SC), 95A–B (Galadima JSC).

An issue formulated from a combination of several grounds one of which is invalid is itself invalid. Obasi v Mikson Establishment Industries Ltd [2016] 16 NWLR (Part 1539) 335 (SC), 381B–C (Peter-Odili JSC).

Particulars form part of grounds and should be processed alongside.

To effectively match issue with grounds, the grounds must be read together with their particulars “for a proper understanding of the appellant’s complaint.” PDP v Sherrif [2017] 15 NWLR (Part 1588) 219 (SC), 260G–H (Rhodes-Vivour JSC). That means that in considering whether some grounds support any issue, the particulars of those grounds must be read as their intrinsic component. The particulars of a ground are, of course, parts of the ground.

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