LEGAL PRINCIPLE: APPELLATE PRACTICE – Issue Formulation – Appellate Court May Formulate Issues Where Parties’ Issues Are Inappropriate
PRINCIPLE STATEMENT
Although an appeal court should be wary of formulating or introducing new issues for determination in an appeal before it, where the issues postulated by the parties are inappropriate or inadequate having regard to the grounds of appeal filed, the court should, without any hesitation, attempt to identify the appropriate issues in the circumstances of the case. Care must however be taken to ensure that the issue or issues formulated by the court does not or do not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties unless it is an issue on jurisdiction. See N.P.A. v. Panalpina (1974) 1 NMLR 82 at 75; Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Fabiyi v. Adeniyi & Ors (2000) NLC-1161994(SC) at p. 9; Paras B–D.
"Although an appeal court should be wary of formulating or introducing new issues for determination in an appeal before it, where the issues postulated by the parties are inappropriate or inadequate having regard to the grounds of appeal filed, the court should, without any hesitation, attempt to identify the appropriate issues in the circumstances of the case. Care must however be taken to ensure that the issue or issues formulated by the court does not or do not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties unless it is an issue on jurisdiction. See N.P.A. v. Panalpina (1974) 1 NMLR 82 at 75; Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508."
EXPLANATION / SCOPE
Appellate courts may formulate issues where parties’ issues are inappropriate or inadequate relative to grounds of appeal. However, courts must be cautious not to raise new issues not contemplated by the grounds unless jurisdiction is involved. The power is corrective—to ensure proper determination, not to expand the appeal. If parties’ issues miss the point, the court should identify appropriate issues. This balances judicial efficiency with party autonomy. New issues cannot be introduced without grounding in existing grounds of appeal. Jurisdictional issues are an exception to this limitation.