LEGAL PRINCIPLE: APPELLATE PRACTICE — Competence of Appeal — Court Cannot Determine Appeal Not Before It — Effect of Withdrawal of Appeal
PRINCIPLE STATEMENT
An appellate court cannot allow an appeal that was never before it; where an appeal has been withdrawn, the court has no jurisdiction to determine it.
RATIO DECIDENDI (SOURCE)
Per Katsina-Alu, JSC, in Bako & Ors v. Laniyan & Ors (2002) NLC-301995(SC) at p. 4; Paras A–C.
"Evidently, there were two appeals against two different decisions on different days. There was no order for the consolidation of the two appeals. Rather Learned Counsel for the Defendants informed the lower Court that the second appeal filed on 17 August, 1990 was withdrawn. The Plaintiffs did not deny nor dispute that statement the Court of Appeal was clearly in error in allowing an appeal which was never before it."
EXPLANATION / SCOPE
An appellate court has no jurisdiction to entertain an appeal that has been withdrawn or was never properly before it. Once an appeal is withdrawn, it ceases to exist. The court cannot allow or dismiss a non-existent appeal. The principle applies even if the court mistakenly believes the appeal is still pending. The parties cannot consent to the court determining a withdrawn appeal. The error is fundamental and renders the decision a nullity. The court must confine itself to appeals properly filed and not withdrawn. The rule ensures that courts adjudicate only live disputes. The appellate court’s jurisdiction is determined by the notices of appeal properly before it.