RICHARD OSA NEKPENEKPEN v. MR. IWAZOR EGBEMHONKHAYE
(2014)LCN/6937(CA)
RATIO
FAILURE TO COUNTER ARGUMENT OR ISSUES VALID RAISED
It is noteworthy that learned respondent’s counsel did not respond to issues 3 and 4 which were ventilated upon by the appellant’s counsel in his brief of argument. In such a situation, the defaulting counsel, like the respondent’s counsel herein, is deemed to have conceded the contentions of the appellant’s counsel on issues 3 and 4. I am fortified in this opinion by the decision of the apex court in Dr. Arthur Nwankwo & 2 Ors. V. Alhaji Umar Yar’Adua & 40 Ors. (2010) 3 SCNJ (pt. 1) 244 at 265, per my Lord, Onnoghen, JSC, where
he said: “It is settled law that where an opponent fails or neglects to counter argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent. I therefore, in the circumstance, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellant.”
Further see: Okongwu V. Nigeria National Petroleum Corporation (NNPC) (1989) 7 SCNJ 106; (1989) 4 NWLR (Pt. 115) 296; (1989) 7 SC (pt. 1) 127. I am afraid, I cannot say anything different or hold a different opinion contrary to that of the apex court in Nwankwo V. Yar’Adua (supra) as I am bound to follow it. I follow it accordingly. In effect, the respondent’s learned counsel being deemed as having conceded the contentions of the appellant’s learned counsel on issues 3 and 4, the same without further ado, are each resolved in favour of the appellant.
However, as a footnote, let me re-echo what this court said in FBN V. Ejikeme (1996) 7 NWLR (pt. 462) 597 at 616, to wit: “Every judge as an umpire must keep a cool head and never lose his sense of justice. He must for no earthly reason appear to give an impression obviously or inadvertently that he is championing the cause of either party no matter the conduct of the party or counsel in a case which can be intolerable. A judge must be patient and accommodate within the rules of court, the inadequacies of counsel and parties else he gives an impression of descending into the arena.” Per TOM SHAIBU YAKUBU, J.C.A.
