APROFIM ENGINEERING CONSTRUCTION NIGERIA LTD. V. JACQUES BIGOURET & ANOR
(2010)LCN/3776(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/J/308/2006
RATIO
PROCEDURE: WHAT ENTAILS FILING OF SUPPLEMENTARY BRIEF
Our Rules do not provide for filing of Supplementary Brief. But when the need to file a supplementary Brief presents itself such a process can only be filed with the leave of this Court.
Okenwa v. Military Gov. Imo State 1996 6 NWLR Pt. 455. P. 394.
Okpala v. Ibeme 1989 2 NWLR Pt. 102 P. 208.
Ehot v. State 1993 4 NWLR Pt. 290, P. 644.
Leave (permission) to file Supplementary Brief is entirely within the discretion of the Judges who hear the application and for the sole purpose of doing substantial justice between the parties. The discretion must be exercised judiciously. That is to say good and substantial reasons must be given in the affidavit in support to justify the permission to be allowed to file a Supplementary Brief. PER BODE RHODES-VIVOUR, J.C.A
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
APROFIM ENGINEERING CONSTRUCTION NIGERIA LTD. Appellant(s)
AND
1. JACQUES BIGOURET
2. BALLOT WORLD WIDE LTD Respondent(s)
BODE RHODES-VIVOUR, J.C.A (Delivering the Leading Ruling): BY Motion on Notice filed on the 12th of January, 2010 and brought under the inherent jurisdiction of the Court, the Appellant/Applicant seeks the following:
1. An order of the Honourable Court granting LEAVE to the Appellant/Applicant to file and serve on the Respondent a supplementary Brief in this appeal.
2. An order deeming the supplementary Brief filed and served in this appeal as properly filed and served.
The application is supported by an 11 paragraph affidavit deposed to by Nurudeen Badmus Esq. a legal practitioner in chambers of Learned Counsel for the Appellant/Applicant Annexed to the affidavit in support are documents marked, (1) Exhibit ‘A’ Notice of change of counsel (2) supplementary Reply Brief.
Mr. Alfred Uwakwe, the Litigations secretary in chambers of Learned Counsel for the Respondent deposed to 10 paragraph counter-affidavit.
At the hearing of the Motion on Notice on the 27th of April, 2010. Learned Counsel for the appellant/applicant, Mr A. Ojo adopted his brief and urged that the application be granted. Learned Counsel for the Respondents Mr. N. A. Evoh also adopted his brief and urged that the application be dismissed.
As at the time this application was heard all briefs are duly filed and served. That is, the Appellants brief, the Respondents Brief, and the Reply Brief. This is as provided for by order 17 rules 2, 4 and 5 of the Court of Appeal Rules 2007. The appeal was thus ready for hearing.
Our Rules do not provide for filing of Supplementary Brief. But when the need to file a supplementary Brief presents itself such a process can only be filed with the leave of this Court.
Okenwa v. Military Gov. Imo State 1996 6 NWLR Pt. 455. P. 394.
Okpala v. Ibeme 1989 2 NWLR Pt. 102 P. 208.
Ehot v. State 1993 4 NWLR Pt. 290, P. 644.
Leave (permission) to file Supplementary Brief is entirely within the discretion of the Judges who hear the application and for the sole purpose of doing substantial justice between the parties. The discretion must be exercised judiciously. That is to say good and substantial reasons must be given in the affidavit in support to justify the permission to be allowed to file a Supplementary Brief.
Relevant extracts from the affidavit in support read as follows:
3. That I know as a fact that the previous counsel representing the Appellant/Applicant, Wale Olawoyin of Olawoyin and Olawoyin had filed an Appellants brief on argument dated 10th May, 2007.
4. That the Respondents filed their Brief of argument on 9th July, 2007.
5. That the Appellant had through Wale Olawoyin of Olawoyin and Olawoyin and Co. filed a Reply on points of Law dated 2nd October, 2007.
6. By a Notice dated 15th April, 2009 and a letter from the Appellant changed its counsel from the law firm of Olawoyin and Olawoyin to Adekunle Ojo said Associates.
7. That on Thursday the 5th day of January, 2010 at 2 Adeboye Solanke Street, Allen Avenue, Ikeja, Lagos State, I was informed by Adekunle Ojo Counsel to the Appellant and I verily believe him that:
a. He has previously obtained and studied the Appellants Brief and Reply Brief filed by previous Counsel to the Appellant.
b. He wishes to adopt the issues contained in the Brief on behalf of the appellant and make additions to the process by way of a Supplementary Reply brief on point of law to supply the deficiency in the Reply Brief and or update the Appellants response on point of Law to the Respondents Brief of argument.
Mr. A. Ojo was not the counsel who prepared and filed the Appellants/Applicants Brief and Reply Brief. After studying both processes Mr. A. Ojo was not satisfied and so saw the need to make additions and update the Appellants response on points of law. It is almost impossible to controvert the above. After all, counsel retained to conduct a case has complete authority to decide how to conduct the case, consequently all that the respondent says in his Counter-Affidavit are at best peripheral. Paragraphs 6 and 7 of the Counter-Affidavit reads:
6(i) That change of counsel simpliciter does not in anyway authorize the appellant to file additional reply brief on point of law.
(ii) That the grant of this application will amount to giving the appellant an opportunity to have a second bite against the Respondents.
7. That the grant of this application will certainly work against the interest of the Respondents who may not have the opportunity for further reply to the said supplementary brief.
In answer to the above, it was because the appellant changed his counsel that the new counsel seeks to file additional Reply Brief on point of Law to take care of the deficiency in the Reply Brief. The grant of this application will not amount to the Appellant/Applicant having a second bite against the Respondents or result in injustice to the respondent. Since the Respondents may be granted leave to file their supplementary brief if they so desire the Respondents will not be prejudiced.
Application granted.
UZO NDUKWE- ANYANWU J.C.A . I have had the privilege of reading in draft from the Ruling just delivered by learned brother RHODES-VIVOUR, JCA.
I agree that the Appellant should be granted leave to file and serve on the Respondent a supplementary brief in this appeal.
The reason of this prayer is to take care of the deficiencies in the brief already filed by the former counsel. The justice of this case can only be met if this prayer is granted and I so grant it.
ABUBAKAR DATTI YAHAYA, J.C.A. I have had the privilege of reading in advance, the ruling of my learned brother RHODES-VIVOUR, JCA, just delivered. I entirely agree with the reasons and conclusions reached therein. I also grant the application.
Appearances
A. OjoFor Appellant
AND
N.A. EvohFor Respondent
