CHIEF EMMANUEL NWUDE v. FEDERAL REPUBLIC OF NIGERIA & ORS (2015)

CHIEF EMMANUEL NWUDE v. FEDERAL REPUBLIC OF NIGERIA & ORS

(2015)LCN/7850(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of April, 2015

CA/L/484/06(R)

RATIO

COURT: THE DOCTRINE OF FUNCTUS OFFICIO; WHETHER A COURT IS SAID TO BE FUNCTUS OFFICIO ONCE IT HAS DELIVERED ITS JUDGEMNET ON A MATTER AND CANNOT REVIST OR REVIEW THE SAID JUDGEMENT EXCEPT UNDER CERTAIN CIRCUMSATNCES AND WHETHER IT IS AN ABUSE OF CURT PROCESS FOR A COURT THAT LACKS JURISDICTION TO DETERMIN AN ISSUE WHEN IT IS FUNCTUS OFFICIO IN RESPECT OF THE ISSUE OR WHERE THE PROCEEDINGS RELATING TO THE ISSUE

Can the Appellant at this stage of hearing the appeal re-open issues of joinder? I think not. Can this court having ruled on the joinder and granted same revisit the issue with a view to either finding better reasons for doing so or reversing it? Again I say NO. The doctrine of functus officio will certainly work against the court. Functus officio is a doctrine that stands against revisiting issues. See FIRST BANK OF NIGERIA PLC v. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (Pt. 1216) 247 where the Supreme Court held thus:
“A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lack potency to review, reopen or revisit the matter. Once a court delivers its judgment on a matter, it cannot revisit or review the said judgment except under certain conditions. Where importantly a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process.”
See also UKACHUKWU v. UBA (2005) 18 NWLR (Pt. 956) 1; ANYAEGBUNAM v. A-G, ANAMBRA STATE (2001) 6 NWLR (Pt. 710) 532 and MOHAMMED v. HUSSEINA (1998) 14 NWLR (Pt. 584) 108. per. YARGATA BYENCHIT NIMPAR, J.C.A.

PRACTICE AND PROCEDURE: A REPLY ON POINTS OF LAW; WHETHER A REPLY BRIF IS NECESSARY AND WHAT IT SHOULD ADDRESS
A reply on points of law received judicial attention wherein the case of HARKA AIR SERVICES (NIG) LTD v. KEAZOR, ESQ. (2011) LPELR-1353 the apex court held thus:
“The appellate courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondents brief. Although the filing of a reply brief by an appellant is not mandatory where a respondent’s brief raises issues or points of law covered in the appellant’s brief, an appellant ought to file a reply as failure to file without an oral reply to the points raised in the respondent’s brief may amount to a concession of the points of law or issues raised in the respondents brief. It is not proper to use a reply to extend the scope of the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply brief is not meant to have a second bite at the cherry, which is exactly the purpose of the appellant’s reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his arguments and submission in the two issues raised for determination, it is utterly irrelevant to this appeal.” See also OLAFISOYE v. F.R.N. (2004) 4 NWLR (Pt. 864) 580; POPOOLA v. ADEYEMO (1992) 8 NWLR (Pt. 257) 1; LONGE v. F.B.N. PLC (2010) 6 NWLR (Pt. 1189) 1 and SHUABU v. MAILODU (1993) 3 NWLR (Pt. 284) 748. per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

CHIEF EMMANUEL NWUDE Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. LEO WALLACE COCHRANE
3. LEO WALLACE COCHRANE JR. Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling): This ruling is predicated upon a motion on notice dated 12/2/15 filed on the same day by the 2nd & 3rd Respondents praying the court for the following:

(i) Pursuant to Order 20 Rule 5 (1) of the Court of Appeal Rules and the court’s inherent jurisdiction striking out paragraphs 2.1 to 2.4 of the Appellant’s Reply brief at pages 1 to 3 dated 11th day of February, 2015 filed on the 11th day of February, 2015 in response to the 2nd & 3rd Respondents Amended Respondents’ brief amended the 26th day of January, 2015 and filed on the 26th day of January, 2015.

(ii) Further and in the alternative, pursuant to Section 36 (9) of the Constitution of the Federal Republic of Nigeria 1999 and the court’s inherent jurisdiction granting them leave to respond orally at the hearing of the appeal or by a written brief to be filed within seven days or as the court may direct on the point taken at paragraphs 2.1 to 2.4 aforesaid;

And for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

The application is predicated upon the following grounds:

(1) The contents of paragraphs 2.1 to 2.4 aforesaid do not constitute a reply on points of law to the issues of law raised in the Applicants’ Amended Brief.

(2) The said contents of paragraph 2.1 to 2.4 aforesaid amount to an objection to the Applicants being heard on the hearing of the appeal.

(3) In so far as the said objection was taken in the reply brief without a notice of preliminary objection having been filed, it amounts to an ambush on the Applicants who ordinarily have no right of reply to reply brief.

(4) Unless the paragraphs are struck out or leave is given to the Applicants to respond thereto, they will be unduly prejudiced.

The motion is supported by an affidavit of 4 paragraphs duly sworn to by David Ugbong. Pursuant to order of court, parties filed written submissions, applicant’s address is dated 6th March, 2015 filed same day.

The appellant in response filed a counter affidavit in opposition to the 2nd & 3rd Respondent’s motion. It is made up of 9 paragraphs duly sworn to by Motolani Oyedele. The appellant also filed a written address on the order of court. The 2nd & 3rd Respondents filed a reply on 6/3/15.

Both written addresses and reply were adopted and relied upon to urge the court to find for their respective positions.

The 2nd & 3rd Respondents distilled 3 issues for determination as follows:

(1) Whether paragraphs 2.1 to 2.4 of the said Reply brief are competent and if they are not whether they should be struck out?

(2) If this honourable court chooses to allow those paragraphs to remain whether the 2nd to the 3rd Respondents should be allowed to respond to them.

(3) If the 2nd and 3rd Respondents are allowed to respond to the said paragraphs whether the Appellants cannot be heard to make the submissions contained in the aforesaid paragraphs.

The Appellant on its part formulated a sole issue for determination as follows:

Whether this honourable court would not strike out/dismiss the Respondents motion on Notice of 12th February, 2015 for being incompetent/unmeritorious.

The issues formulated by the 2nd & 3rd Respondents shall be adopted and considered together.

Proffering arguments on the issues distilled, the 2nd & 3rd Respondents under issue one submitted that paragraph 2.4 of the appellant’s reply contends that the 2nd & 3rd Respondents brief be discountenanced. That paragraph 3.1.1 contain matters not allowed by a reply as a reply is only meant to deal with fresh points of law raised by the Respondents in their brief; they relied on ESSIEN & ORS v. THE COMMISSIONER OF POLICE (1996) 5 NWLR (Pt. 449) 489; IJADE & ORS v. OGUNYEMI (1996) 9 NWLR (Pt. 470) 17; BROWN & ANOR v. THE STATE (2012) 3 NWLR (Pt. 1287) 207 to contend that paragraphs 2.1 to 2.4 did not arise from the 2nd & 3rd Respondents Brief. That the said reply went further to contend that the 2nd & 3rd Respondents are not entitled to make those submissions, a subtle objection which has no place in a reply as held in the cases of ONYEKWULUNNE & ORS v. NDUKWE IBEZIM (1997) 7 NWLR (Pt. 512) 250 at 267; AKEREDOLU v. AWIMU (2003) LPELR-12410(CA). They urged the court to discountenance paragraphs 2.1 to 2.4 of the Reply brief.

Under issue 2, the 2nd & 3rd Respondents submitted that in the event that the said paragraphs survive, even though that would mean allowing arguments on issues that do not arise from the ruling of the lower court and one which the 2nd & 3rd Respondents had no prior opportunity to address the court; the question that would arise is whether they should be heard.

They contended that it would amount to denial of hearing if the 2nd & 3rd Respondents do not respond and relied on ARINZE v. NWOFIA (2000) 4 NWLR (Pt. 653) 464 at 471.

Arguments in respect of issue 3 are that the Appellant conceded that the court allowed the 2nd & 3rd Respondents to come into the appeal and for the appellant to rely on PETERS & ANOR v. THE STATE (1992) 9 NWLR (Pt. 265) 323 at 331 and EKWULUGO v. ACB (NIG) LTD & ANOR (2006) 6 NWLR (Pt. 975) 30 to urge that the court strike out its brief is unjustified. Furthermore, that the appellant’s contention that they should be neutral because they are nominal parties in relying on UZODINMA v. IZUNASO & ORS (2011) 17 NWLR (Pt. 1275) 30 at 65; ATTORNEY-GENERAL OF THE FEDERATION & ORS v. ABUBAKAR & ORS (2007) 10 NWLR (Pt. 1041) 1 at 106 and INEC v. OSHIOMHOLE (2009) 4 NWLR (Pt. 1132) 607 at 626 is untenable.

Learned Counsel to the 2nd & 3rd Respondents submitted that it is not in every case that the court could strike out what it had earlier on allowed or granted. He reviewed the case of PETERS v. THE STATE (SUPRA) which he said concerned processes not joinder of parties and relied on FABUNMI & ANOR v. OYEWUSI (1990) 6 NWLR (Pt. 159) 728 at 737-738.

Arguing further, the 2nd & 3rd Respondents submitted that they were joined as interested parties by order of court and not as nominal parties and to contend that they cannot make submission is contrary to the order of joinder. That the authorities relied upon by the appellant are inapposite and distinguished them to submit that the 2nd & 3rd Respondents are not nominal parties as INEC is considered in Election matters. That they are interested parties because of the forfeiture order made by the lower court in their favour and furthermore, the 2nd & 3rd Respondents are not creatures of the Constitution or having Constitutional roles to play. They finally urged the court not to entertain paragraphs 2.1 to 2.4 of the Appellants Reply Brief.

The appellant/respondent relied on the counter affidavit and in the written address highlighted 6 aspects of its reply brief thus:

(i) Criminal Prosecution is the sole prerogative and the duty of the State/Attorney General.

(ii) Criminal Prosecution is strictly between the State and the Accused person(s).

(iii) Appeal is a continuation of hearing.

(iv) Further to (iii) above, a criminal appeal is a continuation of the prosecution and defence of an accused person.

(v) In the light of (i) – (ii) above a criminal appeal is strictly a matter between the State and the Accused person.

(vi) The rights granted by Section 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) is a right of appeal and not a right to respond to an appeal.

He contended that on that basis the 2nd & 3rd Respondents address should be discountenanced for being legally untenable. He referred to the definition of preliminary objection in the authorities of U.B.A. PLC v. MODE NIGERIA (LTD) (2002) FWLR 147 at 159 and OJUKWU v. YAR’ADUA (2008) 4 NWLR (Pt. 1078) 435 at 454 as one that is capable of terminating the hearing of the appeal on jurisdiction and therefore their objection is not a preliminary objection. He argued that the jurisdiction of this court is not challenged and all it did was to ask the court to discountenance arguments of 2nd & 3rd Respondents.

Arguing further, they submitted that the motion is an attempt at having a second bite and if allowed it would have circumvented Order 18 Rule 2, 3, 4 and 5 of the Court of Appeal Rules, 2011. He argued that the rules do not give the applicants the right of further address as there must be an end to litigation, relied on TRIANA LTD v. UTB PLC (2009) 12 NWLR (Pt. 1155) 313 at 343 to ask that the motion be struck out. He relied on OJO v. OLAWORE (2008) 6-7 SC (Pt. 11) 54 at 70; MOBIL OIL v. MONOKPO (2003) 18 NWLR (Pt. 852) 346 at 433.

On the issues for determination formulated in the 2nd & 3rd Respondents brief, appellant submitted that they all go to wanting to have a second bite at the Cherry. Appellant argued that the Reply dwelt on new issues raised in the Respondent’s brief and distinguished the cases cited by the 2nd & 3rd Respondents and relied on MUSACANI LTD v. ASPINALL (2013) 14 NWLR (Pt. 1375) 435 at 457-458 and MOZIE v. MBAMALU (2006) 15 NWLR (Pt. 1003) 466 at 496-497 on what a reply brief is.

Appellant admitted that the 2nd & 3rd Respondents were joined by order of court. He urged the court to discountenance authorities cited by the 2nd & 3rd Respondents as an authority is only for what it decided and relied on DANGOTE v. PLATEAU STATE CIVIL SERVICE (2001) 9 NWLR (Pt. 717) 132 at 155 and ADEGOKE MOTORS v ADESANYA (1989) 3 NWLR (Pt. 109) 250 at 265-266. He also urged the court to find that the application is an abuse and should so hold.

Arguing further, appellant submitted that it is not asking the court to overrule its decision joining the 2nd & 3rd Respondents by striking out its names but the essence is on the decisions in PETER & ANOR v. THE STATE and EKWULUGO v. ACB (SUPRA) that order of joinder is not a licence or a fiat for the Respondents to join in the prosecution of the appellant because the court can make an unconstitutional order. He relied on LADOJA v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 182-183.

On the role of a Respondent in an appeal, the appellant relied in EMEKA v. OKADIGBO (2012) 18 NWLR (Pt. 1331) 55 at 97 and IFEGWU v. UBN (2011) 16 NWLR (Pt. 1274) 555 at 584. He submitted that where a Respondent goes to make inappropriate arguments, it is the duty of the appellant to draw the courts attention in its reply.

He attacked the leave granted to Respondents to join in the appeal as a foundation for chaos because they have no place in prosecution in our criminal jurisprudence and relied on ONAGORUWA v. STATE (1993) 7 NWLR (Pt. 303) 49 at 107.

Appellant argued that a fiat was not granted as required relying on C.O.P. v. TOBIN (2009) (Pt. 1148) 62 at 88.

He questioned the role of the 2nd & 3rd Respondents in the criminal appeal and whether the Respondents could have appealed if the appellant was acquitted and that they lack locus standi to be respondents and an appellate court cannot exercise jurisdiction where the lower court had no jurisdiction relied on A-G ANAMBRA v. OKEKE (2002) 12 NWLR (Pt. 782) 575 at 609; LAGGA v. SARHUNA (2006) 16 NWLR (Pt. 1114) 427 at 482-483 and AKINBOLE v. PLISSON FISKO (1991) 1 NWLR (Pt. 167) 270 at 285.

Furthermore, that the only argument the 2nd & 3rd Respondents can proffer must be what they could have done at the lower court and finally urged the court to note the constitutional breaches committed by the 2nd-3rd respondents and therefore they must be limited to watching brief. That the motion should be dismissed for being incompetent.

RESOLUTION:

The issue here to my mind is straight forward. All the issues distilled by the applicant are adopted and shall be resolved at once.

It is not in doubt and as agreed by the parties that the 2nd & 3rd Respondent/Applicant were joined as parties to this appeal by order of court. Whatever was the contention against the joinder was settled by the order of joinder and applicants were joined as Respondents with all the rights and privileges of a Respondent to an appeal.

The Role of a Respondent in an appeal is settled by a number of decisions which is to support the judgment of the lower court, see EMEKA v. OKADIGBO & ORS (2012) LPELR-9338 (SC).

The 2nd-3rd Respondents were joined without any restrictions or qualifications, can they now be limited to areas they should address the court? I think not. The argument of the appellant that the primary responsibility of prosecution rests with the state is a valid statement but there is also no legal prohibition to having parties like the 2nd-3rd Respondents in whose favour an order of forfeiture was made from being joined in an appeal as Respondents. The essence of it all is to ensure that justice is done. Justice is said to be a three way process, justice to the accused or appellant in this case, justice to the victims and justice to the society. It cannot therefore be said that the 2nd-3rd Respondents do not have an interest sufficient enough to be heard after being joined as parties.

The applicant challenged paragraphs 2.1-2.4 of the Appellants reply.
A reply on points of law received judicial attention wherein the case of HARKA AIR SERVICES (NIG) LTD v. KEAZOR, ESQ. (2011) LPELR-1353 the apex court held thus:
“The appellate courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondents brief. Although the filing of a reply brief by an appellant is not mandatory where a respondent’s brief raises issues or points of law covered in the appellant’s brief, an appellant ought to file a reply as failure to file without an oral reply to the points raised in the respondent’s brief may amount to a concession of the points of law or issues raised in the respondents brief. It is not proper to use a reply to extend the scope of the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply brief is not meant to have a second bite at the cherry, which is exactly the purpose of the appellant’s reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his arguments and submission in the two issues raised for determination, it is utterly irrelevant to this appeal.”
See also OLAFISOYE v. F.R.N. (2004) 4 NWLR (Pt. 864) 580; POPOOLA v. ADEYEMO (1992) 8 NWLR (Pt. 257) 1; LONGE v. F.B.N. PLC (2010) 6 NWLR (Pt. 1189) 1 and SHUABU v. MAILODU (1993) 3 NWLR (Pt. 284) 748.

The quotation above is apt and applies to this case squarely. The appellant re-opened issues dealt with earlier and introduced new ones. He cannot do so no matter the cogency or efficacy of such points raised.

An appellant cannot also raise a preliminary objection in a reply brief, it offends Order 10 Rule 1 of the rules of this court.

Furthermore, the issues formulated by the 2nd-3rd Respondents having arisen from the judgment grounds of appeal cannot be discountenanced because it satisfied the requirements of a Respondents brief. At this stage, the 2nd-3rd Respondents have equal status with the 1st Respondent and nothing can derogate from that. It is indeed the appellant who has gone outside the issues it formulated for determination in the Reply on points of law.

Fundamentally, because the 2nd-3rd Respondents have no right of reply after a reply on points of law, no new issue can be allowed in a Reply on points of law. Such new issues or address must be discountenanced. The issue of allowing the 2nd-3rd Respondents to reply cannot arise. The argument that joining the 2nd-3rd Respondents created constitutional breaches and therefore they must be restricted to watching brief cannot be valid because there is no need for leave and order of court to watch brief. Being respondents they stand so with all the rights and privileges of that position. The appellant did not cite any constitutional provision that was breached to buttress his submission.

All other issues on locus standi of the 2nd-3rd Respondents and submissions on the order of this court creating confusion cannot be allowed. The arguments do not arise from the judgment of the trial court.
They are not in support of any issue for determination nor do they have anything to do with the grounds of appeal.

The application has merit, prayer 1 is granted, consequently paragraphs 2.1-2.4 of the appellant’s reply are hereby discountenanced. They should be struck off the reply on points of law. Prayer 2 is refused because it is contrary to rules of this court and upon the grant of prayer 1, prayer 2 becomes irrelevant.

No order as to cost.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Ruling just delivered by my Learned Brother YARGATA BYENCHIT NIMPAR, JCA. I can only add these few words.

The court has already ordered that 2nd and 3rd Respondents be joined as parties to this Appeal. For a person to be joined as a party, in an appeal, it must be shown that the person is entitled to some share/interest in the subject matter, or lays claim to such share/interest, or is likely to be affected by the result of the appeal, or is a necessary party, and/or it is just and convenient to join him. See Yakubu v. Government, Kogi State (1995) 8 NWLR (Pt. 414) pg. 386.

The courts have held that the purpose of joinder of parties in an Appeal is to enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter. The overriding consideration are whether the issues that call for determination cannot be effectually and completely settled unless the party sought to be joined is made a party and that his interest will be irreparable prejudiced if he is not made a party. Ogunbinle v. Adebanjo (2006) 2 NWLR (Pt. 964) pg. 319.

In this appeal the court had already joined 2nd and 3rd Respondents. They have all the rights an original party has. They cannot be restricted by any name whatsoever. Once a party is joined he does not suffer any disability.

The reason for the joinder of 2nd and 3rd Respondents is to effectively come to a just conclusion affecting all the parties.

The lead Ruling has dealt with all the issues raised in this application. I agree with the arguments and conclusions reached thereto. I abide by all the orders reached therein.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother NIMPAR, JCA granted me the privilege to read before now the lead Ruling just rendered by him.

I am entirely in agreement with the reasoning and conclusion. I adopt them as mine with nothing useful to add.

Appearances

Dr. Ladapo Olanipekun with
Olabode Olanipekun,
Ademola Adesina,
M. Oyedele (Mrs.)
O. Ononuga (Mrs.)For Appellant

AND

Rotimi Jacobs (SAN) with
Tayo Olukuton – for 1st Respondent

E. O. Sofunde (SAN) with
O. Onolodun,
C. Ezediaro,
Folahun Ajayi – for 2nd & 3rd Respondents/Applicants.For Respondent

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