MRS. ONYIDO EKWUTOSI UCHECHUKWU & ANOR. v. BARR. UZAMA SIMON OKPALAEKE & ORS.
(2010)LCN/3732(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of April, 2010
CA/E/EPT/50/2008
RATIO
APPEAL: REPLY BRIEF; NATURE OF BRIEF OF REPLY
It is glaring from the provision of the Rules of this Court re-produced above, and indeed from a plethora of decided cases on the matter, that an appellant does not have an unbridled right to file a Reply Brief in an appeal.
See the case of MOZIE V. MBAMALU (2006) All FWLR (pt. 341) 1200 at page 1220 where the Supreme Court dwelling on Reply Brief said per Tobi, JSC; thus: –
“It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or argument raised in a respondent’s brief calls for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”
See also the cases of YARO V. AREWA CONSTRUCTION LTD & ANOR (2008) All FWLR (Pt. 400) 603 at 633 and HYUN SUNG HYDRAULIC MACHINERY CO. LTD V. SAHYRA NIG. LTD & ORS (2008) All FWLR 132 at 145. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO SODIPE Justice of The Court of Appeal of Nigeria
Between
1. MRS. ONYIDO EKWUTOSI UCHECHUKWU
2. ALL NIGERIA PEOPLES PARTY – Appellant(s)
AND
1. BARR. UZAMA SIMON OKPALAEKE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE ELECTORAL OFFICER IHIALA LGA
5. THE RETURNING OFFICER, IHIALA II CONSTITUENCY
6. OKIJA WARD 1 RETURNING OFFICER
7. OKIJA WARD 2 RETURNING OFFICER
8. OKIJA WARD 3 RETURNING OFFICER
9. OKIJA WARD 4 RETURNING OFFICER
10. OKIJA WARD 5 RETURNING OFFICER
11. AZIA WARD RETURNING OFFICER
12. MBOSI WARD RETURNING OFFICER
13. ORSUMOGHU WARD RETURNING OFFICER
14. ISSEKE WARD RETURNING OFFICER
15. LILU WARD RETURNING OFFICER
16. UBULUISIUZOR WARD RETURNING OFFICER – Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling): The 1st and 2nd Respondents (who will hereinafter simply be referred to as ‘the Applicants’) in the motion on notice dated 15th March 2010 and filed on 16th March, 2010 seek for the following:-
“A. AN ORDER of the Honourable Court striking out Paragraphs 3.01, 3.02, 3,03, 3.04, 3.05, 3.06, 3,07, 3.08, 3.09, Paragraphs 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, and Paragraphs 3.17, 3.18, 3.19, 3,20, 3,21, 3.22, 3.23 and 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009.”
The grounds for the application as set out in the motion paper are as follows:
I. The Appellants under the guise of filing consequential amendment to the 1st and 2nd Respondents’ Further Amended Brief of Argument, abandoned the argument canvassed in their Reply Brief of Argument dated 27/7/08 and filed on 28/7/08 and canvassed fresh argument in Paragraphs 3.01 – 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009.
II. The said Paragraphs 3.01 – 3, 24 of the Appellant’s Amended Reply Brief of Argument is an amendment to the Appellants’ Reply Brief of Argument which amendment does not have any nexus with, and is not consequential upon the further amendment to the 1st and 2nd Respondents’ Amended Brief of Argument as reflected in the 1st and 2nd Respondent’s Further Amended Brief of Argument dated 29/6/09 and deemed filed on 8/12/2009.
III. The argument contained in Paragraphs 3.17 – 3.24 of the Appellants’ Amended Reply Brief of Argument not being a consequential amendment, the Appellant’s (sic) ought to have obtained the leave of the Honorable Court to canvass the same.
IV Paragraphs 3.01 – 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009 are incompetent, the Appellants having failed to obtain the leave of the Honourable Court to canvass the same.
V. Paragraphs 3.01 – 3.16 of the said Appellant’s Amended Reply Brief of Argument contain argument on fresh points, which ought not to be contained in a Reply Brief of Argument.”
The motion was entertained on 23/3/2010. At the hearing of the motion, learned senior counsel for the Appellants/Respondents (who will hereinafter simply be referred to as ‘the Appellants’) J.T.U. Nnodum SAN, applied to withdraw the counter affidavit filed by the Appellants in response to the supporting affidavit of the instant motion. He said he was doing this in order that the motion is heard expeditiously and by necessary implication the substantive appeal. The application in this regard was sequel to the disclosure by learned lead counsel for the Applicants that the counter affidavit in question was served on him on 22/3/2010 and that he intended to react to the same. Suffice it to say that the counter affidavit of the Appellants in question sworn to by the 1st Appellant on 22/3/2010 and filed on the same date was duly struck out, the application in that regard having not been opposed by any of the parties.
Learned lead counsel for the Applicants, Arthur Obi Okafor in moving the application relied on its supporting affidavit. He submitted that all the depositions of facts in the supporting affidavit should be deemed as established as they have not been controverted or denied in any counter affidavit.
Learned lead counsel referred to paragraph 3.01 of the Appellants’ Amended Reply brief which he said deals with ‘incompetence of the Respondents’ (i.e. Applicants’) Notice”. He said that argument concerning the incompetence of the Respondents’ Notice is not contained in the Appellants’ Reply brief dated 27/7/2008 and filed on the same day. (It is to be noted that the brief in question was actually filed on 28/7/2008). Learned lead counsel said that no application to amend the Appellants’ original Reply Brief to introduce argument on the competence or otherwise of the Respondents’ (i.e. Applicants’) Notice has been brought by the Appellants and referred to paragraphs 4 – 9 of the supporting affidavit in this regard. Learned lead counsel again referred to paragraphs 4 – 9 of the supporting affidavit as showing that what the Applicants applied for, was leave to further amend their Amended Brief of Argument. That the said Further Amended Brief of Argument was deemed filed on 8/12/2009. That in granting the application, the Court gave the Appellants leave to file consequential amendment. It is the submission of learned lead counsel that the issue of the competence of the Respondent’s (i.e. Applicant’s) Notice was never raised in their Further Amended Brief of Argument. Learned lead counsel further submitted that the Appellants in the circumstances cannot introduce the said issue as it does not flow or arise from the 1st and 2nd Respondent’s (i.e. Applicant’s) Further Amended Brief. That the issue is a fresh one which is not permitted to be so raised, by virtue of Order 17 Rule 5 of the 2007 Rules of this Court. It is also the submission of learned lead counsel that an appellant will not be allowed to introduce an issue into his brief when the respondent cannot reply to the same. To allow this, learned lead counsel submitted would tantamount to a procedure by ambush. Learned lead counsel referred to Order 9 Rule 6 of the Rules of this Court as not even stipulating that things done in certain circumstances are incompetent. It is the submission of learned lead counsel that in the circumstances of this case, the Appellants have waived the right to object to most of the things they are now objecting to. This is particularly so as the Appellants filed a reply and even amended the reply after they ought to have had knowledge of the same.
Referring to paragraph 3.17 of the Amended Reply Brief, learned lead counsel said that it deals with what had been extensively canvassed in the Appellants’ previous brief. He submitted that the case of Buhari v. Obasanjo cited by the Appellants was not relevant. The Court was urged to grant the application before it.
Learned senior counsel for the Appellants J.T.U. Nnodum SAN, relied all the following processes in opposing the motion: (i) Further Amended Brief of Argument of the 1st and 2nd Respondents; (ii) Appellants’ Reply Brief of Argument; (iii) Appellants’ Amended Reply Brief of Argument; and (iv) 1st and 2nd Respondents’ Amended Brief of Argument. These processes learned SAN submitted are documents which the Court can take judicial notice of as they are part of the Court’s record. In the circumstances, learned SAN submitted that the non-filing of a counter affidavit is not fatal to the Appellant’s opposition to the instant motion. This is particularly so as the Court is not bound by what a party decides to attribute to a process in the Court’s file. It is the submission of learned SAN that Order 17 Rule 5 of the Rules of this Court permits the Appellants to reply to the Further Amended Brief of Argument of the 1st and 2nd Respondents (i.e. Applicants) in the manner they have done in the Appellants’ Amended Reply Brief. Learned SAN said that in the Further Amended Respondents’ Brief, amendment was carried out to several paragraphs of the amended brief viz paragraphs 4.26; and 6.01 – 6.05.
Learned SAN submitted that the reply offered by the Appellants in their Amended Reply Brief is in line with those being reacted to. That having regard to the new argument proffered in the 1st and 2nd Respondents’ (i.e. Applicants’) Further Amended Brief of Argument, the Appellants were at liberty to react to the same in either or both of two ways, namely: (i) to object to the appropriateness of the new argument together with the old one; or (ii) to react to them on the merit; and that this is all the Appellants have done.
Learned SAN stressed that Order 17 Rule 5 of the Rules of this Court permits the Appellants to deal with all new points in the Respondents’ Further Amended Brief of Argument and there is no restriction that it must be on issues of law only.
It is also the submission of learned SAN that the Appellants have not raised any new or fresh issue that is prejudicial to the Applicants. That indeed the issues raised, could have been raised by the court in its judgment. He further said that the new arguments are made pursuant to the Respondent’s Notice commencing at paragraph 4.19 to the end of their brief. It is submitted that the fact that the Respondents appear to have an answer to the reaction of the Appellants does not make the reaction incompetent and reference was made to Order 19 Rule 5 and Order 9 Rule 6, The Court was urged to dismiss the application before it so that the substantive appeal can be heard expeditiously.
S.O. Ibrahim, (Asst. Chief Legal Officer (INEC)) of counsel for the 3rd-16th Respondents did not oppose the instant motion. He associated himself with the submissions of learned lead counsel to the Applicants and urged the Court to grant the application before it.
The Applicants filed their Further Amended Brief of Argument dated 30/3/09 and filed on 1/4/09 pursuant to the order of this Court granted on 8/12/09. The application of the Applicants pursuant to which the order was made is dated 27/8/2009 and filed on 3/9/2009. I consider it expedient to set out the Orders sought for in the said application and the grounds therefore.
The Orders sought read thus: –
“A. AN ORDER granting leave to the 1st and 2nd Respondents/Applicants to further amend the 1st and 2nd Respondent’s Amended Brief of Argument dated 30/3/09 and filed on 1/4/09 by correcting typographical errors, modifying and/or adding further argument to the said 1st and 2nd Respondents’ Amended Brief of Argument under the 2nd Issue formulated for determination which amendments are as shown and underlined in the 1st and 2nd Respondents’ Further Amended Brief of Argument. (Underlining supplied by me).
B. AN ORDER deeming the 1st and 2nd Respondents’ Further Amended Brief of Argument exhibited in the accompanying affidavit as ‘Exhibit B’ as properly filed and served the appropriate fees having been paid.
The grounds for the application read thus:
“3. Further amendment of the 1st and 2nd Respondent’s Amended Brief of Argument is necessary for the full and effective articulation of the case of the 1st and 2nd Respondents in defence to the appeal.
b. Further amending the 1st and 2nd Respondents’ Amended Brief of Argument will enable the 1st and 2nd Respondents correct typographical errors in the afore-said 1st and 2nd Respondent’s Amended Brief of Argument.”
The amendments effected were duly shown by the underlining of the portions of the 1st and 2nd Respondent’s (i.e. Applicant’s) Amended Brief of Argument where new words were inserted and/or further arguments were canvassed.
The Applicants in seeking for the leave of this Court to further amend their Amended Brief of Argument never sought to raise any fresh issue. The Applicants in seeking for the leave of this Court to further amend their Amended Brief of Argument set out to correct typographical errors and to modify and/or add further argument under the 2nd Issue formulated by them for the determination of the appeal. Indeed the Schedule of Amendments attached to the motion by which the Applicants sought for the order granting them leave to amend their Amended Brief of Argument clearly showed the typographical errors to be corrected and also the modification to be effected to arguments as well as further arguments to be canvassed.
The Appellants have not shown that the Applicants raised any fresh issue in their Further Amended Brief of Argument. The Issues for determination as set out in the Applicant’s Amended Brief of Argument dated 30/3/2009 and filed on 1/4/2009 read thus:-
I. Was the court below right when it held that the non-joinder of Presiding Officers and Supervisory Presiding Officers rendered the Petition defective and in so holding by referring to the cases of Nwankwo v. Yar’Adua CA/A/EP/6/2007; (unreported) delivered on 30th September, 2007 and Clarence Olafemi v. Ben Ayo CA/A/28//2008 delivered an 28/2/08 in which it was held that such non-joinder was fatal to the Petition?
II. Whether in all the circumstances of this case the Learned Trial Tribunal was right in dismissing the Petition filed by the herein Appellants.”
In the Applicant’s Amended Brief of Argument it was disclosed that Issue 1, re-produced above was a new one and that the original Issue 1; was now Issue 2, Suffice it to say that the Issues for determination as set out in the Applicant’s Amended Brief of Argument hereinbefore re-produced, remained the same in the Applicant’s Further Amended Brief of Argument dated 29/6/2009 and filed on 3/9/2009.
The 2007 Rules of this Court in Order 17 Rule 5 provide thus: –
“The appellant may also if necessary, within fourteen days of the service on him of the respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”
It is glaring from the provision of the Rules of this Court re-produced above, and indeed from a plethora of decided cases on the matter, that an appellant does not have an unbridled right to file a Reply Brief in an appeal.
See the case of MOZIE V. MBAMALU (2006) All FWLR (pt. 341) 1200 at page 1220 where the Supreme Court dwelling on Reply Brief said per Tobi, JSC; thus: –
“It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or argument raised in a respondent’s brief calls for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”
See also the cases of YARO V. AREWA CONSTRUCTION LTD & ANOR (2008) All FWLR (Pt. 400) 603 at 633 and HYUN SUNG HYDRAULIC MACHINERY CO. LTD V. SAHYRA NIG. LTD & ORS (2008) All FWLR 132 at 145. It would therefore appear clear from the cases that all the Appellants are permitted to do consequent to the order of Court granting the Applicants leave to file a Further Amended Brief of Argument in this appeal is to respond to any new point arising from the said Applicant’s Further Amended Brief of Argument.
The Appellants in their Amended Reply Brief canvassed argument in respect of the incompetence of the Applicant’s (i.e. 1st and 2nd Respondent’s) Notice.
They did this at paragraphs 3.01 – 3.09 of the Brief in question. It is glaring from a perusal of the Applicants’ Amended Brief of Argument; the Schedule of amendments exhibited to the motion pursuant to which the Applicants were granted leave to further amend their Amended Brief of Argument; and the 1st and 2nd Respondents’ Further Amended Brief of Argument before the Court that the Applicants never raised the issue of the competence or otherwise of their Respondent’s Notice in any manner whatsoever. This being the situation, there is definitely no basis upon which the Appellants can properly predicate any argument in relation to the incompetence of the Applicant’s (i.e. Respondent’s) Notice in their Amended Reply Brief. Such argument cannot be said to be consequential as it has no basis in the Applicants’ Further Amended Brief of Argument.
A Respondent’s Notice it should be noted is for all intents and purposes an appeal against the decision of a lower court or tribunal. See EHINLANWO V. OKE (2008) All FWLR (Pt. 422) 1007 at 1042. In my considered view if the Appellants have any grouse with the competence of Respondent’s Notice, it is not in their Amended Reply Brief that they are to articulate this. They should avail themselves of the procedure provided in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. That is, they are to file a motion on notice supported by affidavit containing the facts upon which they rely in challenging the competence of the Respondents’ Notice before the hearing of the appeal so that arguments can heard by the Court and a decision reached.
The conclusion I have reached from all that has been said before now, therefore is that paragraphs 3.01 – 3.09 of the Appellant’s Amended Brief of Argument not being in response to any new Issue or new point in the 1st and 2nd Respondent’s Further Amended Brief of Argument are liable to be struck out as prayed by the Applicants.
The Appellants also argued the Respondents’ Notice on the merit. Learned SAN said that in the Further Amended Brief of the 1st and 2nd Respondents’, amendment was carried out to several paragraphs of the amended brief viz paragraphs 4.26; and 6.01 – 6.05.
Issue 1 which is a new Issue formulated by the Applicants in their Further Amended Brief of Argument it has been disclosed came to be as a result of the introduction by the Appellants in their Amended Brief of Argument of the Issue to wit: “Whether the petition is incompetent for non-joinder of some officers of Independent National Electoral Commission.” Issue 1 in the 1st and 2nd Respondents’ Further Amended Brief of Argument therefore amounts to no more than the Applicants’ response to an Issue introduced into the instant appeal by the Appellants. The fact that a respondent argues the converse of what an appellant has argued does not tantamount to raising a new point. At this stage, that objection has been taken in respect of portions of the Amended Reply Brief of the Appellants on the ground that issues/points not flowing from the Applicants’ Further Amended Brief of Argument are contained therein, it surely behooves the Appellants to clearly show the new issues/points in the Further Amended Brief of Argument that they are responding to. The Appellants have woefully failed to do this at least in relation to the 1st and 2nd Respondent’s Issue 1.
It is to be noted that the arguments in all the paragraphs learned SAN alluded to, were canvassed in relation to Issue 2 as formulated by the Applicants.
Issue 2 is not a new one. Indeed it was the sole Issue formulated for the determination of the appeal by the Applicants in their Brief of Argument dated 19/7/2008 and filed on 21/7/2008. Also it was formerly Issue 1 in the Applicant’s Amended Brief of Argument. The further argument of note that can be said to have been canvassed in the Further Amended Brief of the Applicants would appear to be in paragraphs 6.01- 6.04 at pages 26 – 28 of the said Brief. The argument in this regard is to convince the Court that the decision of the lower Tribunal in Petition No, EPT/AN/SAE/47/07 between Ejezie & Anor v. Ohajianya & Ors is inapplicable in this appeal. The portion of the decision of the Supreme Court in the case of Buhari v. INEC considered relevant to their submission was re-produced by the Applicants to buttress their submission that the decision in the aforementioned Petition No. EPT/AN/SAE/47/07 is inapplicable.
I do not see any new point raised by the Applicants in the paragraphs 6.01 – 6.04 of the Further Amended Brief of Argument. Canvassing an argument in a more elaborate manner is not the same thing as raising a new point. The basis of the additional argument introduced into the Further Amended Brief of Argument of the Applicants is no different from that in the in their Brief of, Argument and Amended Brief of Argument. The Appellants responded to the Issue that is now Issue 2 in the Applicants’ Further Amended Brief of Argument to their satisfaction in their Reply Brief dated 27/7/2008 and filed on 28/7/2008. The position therefore is that, in as much as the Applicants never relied on any new point in the additional/modified arguments introduced under Issue 2, the Appellants cannot properly amend their Reply Brief of Argument in which they had already responded to the said Issue simply for the purpose of countering the submissions of the Applicants. As earlier stated a Reply Brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a Reply Brief is otiose and the court is entitled to discountenance it. A Reply Brief is not a repair kit to put right any lacuna or error in the appellant’s brief. A fortiori an Amended Reply Brief of Argument is also not to be used for a purpose a Reply Brief cannot be employed. It therefore follows that the arguments in paragraphs 3.10 – 3.24 of the Appellants’ Amended Brief of Argument having not been necessitated by any new point introduced into the Further Amended Brief of Argument by the Applicants in arguing Issue 2 cannot stand as the argument in question do not qualify as consequential amendment. The said paragraphs 3.10 – 3.24 of the Appellants’ Amended Reply are therefore liable to be struck out.
In conclusion, the instant application is meritorious and it succeeds.
Accordingly, paragraphs 3, 01 – 3.24 of the Appellants’ Amended Reply Brief dated 21/12/2009 and filed on 22/12/2009 are hereby struck out.
I make no order as to costs.
AMIRU SANUSI, J.C.A.: The draft of the ruling prepared by any learned brother Lokulo-Sodipe JCA was made available to me before now. Having read same, I am in entire agreement with his conclusion that the application is meritorious and ought to be granted. I also order the striking out of Paragraphs 3.10 to 3.24 of the Appellants Amended Reply Brief dated 21/12/2009 but filed on 22/12/2009. I make no order no costs.
OLUKAYODE ARIWOOLA, J.C.A.: I have had a preview of the Ruling prepared by my learned brother, Lokulo-Sodipe, JCA. I agree with his reasoning and conclusion that the application of the 1st and 2nd Respondents against certain paragraphs, in particular, paragraphs 3.01 – 3.24 of the Appellants’ Amended Reply brief of argument dated 21/12/2009 but filed on 22/12/2009 is meritorious and deserves to succeed. In the circumstance, the said paragraphs are liable to be struck out and I also accordingly do so.
I shall also make no order as to costs.
Appearances
J. T. U. Nnodum SAN with P. U. Nnodum and Obinna Adindu for the Appellants/Respondents.
Arthur Obi Okafor with Ikenna Uzokwelu for the 1st and 2nd Respondents/Appellants.For Appellant
AND
S.O. Ibrahim (Asst. Chief Legal Officer, INEC) for the 3rd – 16th Respondents.For Respondent
