LEGAL PRINCIPLE: CIVIL PROCEDURE — Appellate Practice — Consideration of Cases — Order of Consideration by Appellate Court
PRINCIPLE STATEMENT
The discretion of whose case to start with is that of the judge, trial or appellate. It depends on the state of pleadings and particular facts. There is no technical rule; courts cannot lay down a rigid procedure as to whether the appellate court must start with the appellant or respondent first.
RATIO DECIDENDI (SOURCE)
Per Tobi, JSC, in Usman v. Garki (2003) NLC-1411999(SC) at pp. 17–18; Paras D–A.
"The discretion of whose case to start with is that of the Judge, trial or appellate. It depends so much on the state of the pleadings and the particular facts before the court. Basically, however, the trial Judge could first consider the case of the party on whom the burden of proof lies, that is to say, the party who will fail, if the live issues in the matter were not proved. This could be slightly different in the appellate court, where the court is concerned with the decision of the trial court. So much will depend upon the issues formulated by the parties, in the determination of which of the parties the appellate court can consider the case presented to it. There cannot be any technical rule and the courts cannot lay down a rigid procedure as to whether the appellate court must start the consideration of either the case of the appellate or the respondent first."
EXPLANATION / SCOPE
The order of considering cases is discretionary. No rigid rule exists. The principle applies to appellate practice. The court may start with either party. The rule promotes flexibility. The court will not be bound by a fixed procedure. The principle is well-established.