LEGAL PRINCIPLE: APPELLATE PRACTICE — Setting Aside Judgment — Effect of Setting Aside Judgment Without Further Order
PRINCIPLE STATEMENT
The expression "set aside" as used by the Court of Appeal means dismissal. A judgment which is set aside has not the legal capacity to resurface for a retrial. By the order of setting aside, the issues canvassed in that court are dead as far as the court is concerned; and only an appellate court can resuscitate the judgment.
RATIO DECIDENDI (SOURCE)
Per Tobi, JSC, in Fagunwa & Anor v. Adibi & Ors (2004) NLC-1752000(SC) at pp. 8–9; Paras E–A.
"The expression 'set aside' as used by the Court of Appeal means dismissal. A judgment which is set aside has not the legal capacity to resurface for a retrial. By the order of setting aside, the issues canvassed in that court are dead as far as the court is concerned; and only an appellate court can resuscitate the judgment."
EXPLANATION / SCOPE
Setting aside a judgment without further order dismisses the case. The principle applies to appellate practice. The case cannot be retried without an appellate court order. The rule ensures finality. The Court of Appeal need not order a retrial if the plaintiff failed to prove the case. The principle is well-established.