APPELLATE PRACTICE — Competency of Appeal — Discontinuance of Suit — Effect on Substratum
Ratio Decidendi
Per Muhammad, JSC, in Efet v. INEC & Ors (2011) NLC-123-207-2009(SC) at pp. 19—20; Paras A—C:
"An appeal is generally taken to be a continuation of the original case started at the first instance court. It is not a new cause of action. So, if there is anyone that goofed, it is the appellant himself. He misdirected himself in not taking the correct procedure/approach to the retrial case. The argument put by learned counsel for the appellant that the body, spirit and soul of the present appeal arose directly from the decision of the Court of Appeal... and not dependent on suit No.FHC/ABJ/CS/287/2007 by the Federal High Court, may appear lofty but faulty. If one may ask: from where did the appeal come to the Court of Appeal? Is it not from suit No.FHC/ABJ/CS/287/07 between same parties and same subject matter from the same court? Is not the one ordered by the court below to be retried by the same court, though differently constituted? Yes! It is an unintelligible argument. It cannot also alter the facts of the case presented however brilliantly put. One cannot eat one's cake and have it again."
Explanation / Scope
This principle establishes that an appeal is a continuation of the original case, not a new cause of action, and its substratum depends on the original suit. The principle applies where the competency of an appeal is challenged. It ensures that appeals are tied to the original suit. The principle reflects the dependent nature of appeals. It prevents parties from detaching appeals from the original case. The court must recognize the link. The principle provides guidance on competency of appeals.