UAC NIGERIA PLC v. MISS R. O. ODEYEMI
(2011)LCN/4499(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of April, 2011
CA/A/31/M/2007
RATIO
REPLY BRIEF: WHEN IS IT NECESSARY TO FILE A REPLY BRIEF ; CONSEQUENCE OF THE APPELLANT’S FAILURE TO FILE A REPLY BRIEF WHERE NECESSARY
A reply brief is necessary when an Issue of law or an argument raised in the respondents brief calls for a reply. The draftsmen of the court of appeal rules in their wisdom specifically provided in the rules of court the effect of a counsel not filing a reply brief. I refer to order 17 rule 10 of the court of appeal rule 2007 which provides as follows: “Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want to prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief. For ease of understanding I also reproduce order 17 rule 5 of the rules referred thereto. It reads: “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 respondents brief. Clearly, under rule 5, the appellant has an option to file a reply brief within fourteen days of service on him of the respondents brief. The rule goes further to provide that the reply brief shall deal with all new points arising from the respondents brief. The purport of that provision is that the appellant is not under a duty to file a reply brief however where a respondents brief raises new points and he fails to react to same, the court pursuant to order 1 7 rule 10 of the rules of court shall deem the appellant to have conceded to all new points or Issues arising from the respondents brief. This provision in the rules of court is fundamental. The supreme court interpreting the provision of order 6 rule 10 of the court of appeal rules 2002 which provision is in pari-material to the 2007 provision on reply briefs held in Mini Lodge Ltd v. Nge 1 (2009) 18 NWLR (pt.1173) SC 254 per Adekeye: “The function of a reply brief is to refute the new arguments in the respondents brief, A reply brief is necessary when an issue of law or argument is raised in the respondents brief which requires a reply by the appellant. Failure to file a reply brief can adversely affect the case of the appellant of the issues raised in the respondent’s brief fire weighty, substantial and relevant in law. A reply brief is not meant to re-argue or finetune an appellant’s case. A reply brief has no connection or affiliation with the cross-respondents brief and can only be filed by an appellant in the main appeal or cross-appeal” See also Mozie v. Mbamalu(2006) 15 NWLR (Pt 1003) 460 pg 469. PER REGINA OBIAGELI NWODO, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 24 (2) OF THE COURT OF APPEAL ACT 2004 AS TO THE PERIOD WITHIN WHICH ANY PARTY AGGRIEVED BY AN INTERLOCUTORY DECISION OF THE HIGH COURT MUST FILE A NOTICE OF APPEAL
S 24 (2) of the court of appeal Act 2004 stipulates as follows: “The periods for the giving of notice of appeal or notice of application for leave to appeal are- (a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. (b) In an appeal in a criminal cause or matter, ninety days front the date of the decision appealed against.” Clearly by the aforesaid provision any aggrieved party to a decision of the High Court in respect of an interlocutory decision in a civil cause or matter should file a notice of appeal within fourteen (14) days from the date of the decision. This provision in the Act is mandatory. Any party aggrieved by an interlocutory decision and decides to file a notice of appeal must file it within fourteen (14) days of giving the decision. See Tukur v. Govt. Gongola State (1990 5 NWLR (pt.447) 186 CA. Nwabueze v. Nwora (2005) 8 NWLR (pt.926) pg 1. PER REGINA OBIAGELI NWODO, J.C.A
NOTICE OF APPEAL: POSITION OF THE LAW WHERE THE STATUTORY RIGHT IN WHICH TO EXERCISE A RIGHT OF APPEAL HAS EXPIRED AND A NOTICE OF APPEAL IS FILED WITHOUT THE LEAVE OF COURT
Where the statutory right in which to exercise a right of appeal has expired and a notice of appeal is filed without the leave of court the court is divest of jurisdiction to hear the appeal. The notice of appeal is the foundation of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. See Uwazurike v. A.G. Fed. (2007) 8 NWLR (Pt.1036) 1 SC. Mosoba v. Abubakar (2005) 6 NWLR (Pt.922) Pg. 460 at 470. Once the notice of appeal is defective as in the instant case where the notice is incompetent, the court is under a duty to strike out the appeal in its entirety. See Uwazuike v. A.G. Federation Supra. A.G. Federation v. Guardian Newspaper Ltd (1999) 9 NWLR (Pt.618) 187 SC Order 6 rule 6 of the court of appeal rules 2007. PER REGINA OBIAGELI NWODO, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 241 (2) (A) OF THE 1999 CONSTITUTION AS REGARDS WHETHER FROM A DECISION OF THE HIGH COURT, A PARTY CAN BE GRANTED AN UNCONDITIONAL LEAVE TO DEFEND AN ACTION
241 (2) (a) of the 1999 constitution stipulates as follows: 2. Nothing in this section shall confer any right of appeal “(a.) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.” The wordings above reproduced in the provision should be ascribed its natural and grammatical meaning in construction. The law is crystal clear under S. 241 (2)(a),there is no right of appeal by a party aggrieved by a decision of the High Court granting unconditional leave to defend an action. There is only a right of appeal where a conditional leave to defend is granted. See Awuse v. Odili (2005) 16 NWLR (pt.952) CA 416. The constitutional provision under S. 241 (1) does not vest a right of appeal either as of right or with leave under sub-sections (a) and (b) of S. 241(1). The right of appeal from the decision of courts in Nigeria is conferred by the constitution. A decision of the high court granting an unconditional leave to defend an action is not appealable. I am fortified by the decision of the Supreme Court in National Bank of Nigeria Ltd v. Weido & Co (1996) 8 NWLR (pt.465) 150-155 where in interpreting the provision under S. 220 (2) of 1979 constitution which provision is in pari-material with S. 241 of the 1999 constitution. Ogwuegbu JSC had this to say: “It seems to me that the legislature having set out the situations where an intending appellant can appeal to the Court of Appeal as of right in section 220(1) of the Constitution and made other provisions in section 221(1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in subsections 220(2) (a), (b) and (c) of the 1979 Constitution. In fact the exclusion in my view is absolute in sub-sections 220(2)(a) and (b) whereas sub-section (2)(c) is qualified in the sense that with leave of the High Court or the Court of Appeal, the right of appeal against a decision made with the consent of the parties or as to costs only is preserved. PER REGINA OBIAGELI NWODO, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
UAC NIGERIA PLC v. ODEYEMI – Appellant(s)
AND
MISS R. O. ODEYEMI – Respondent(s)
REGINA OBIAGELI NWODO, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the High Court of Justice, Federal Capital Territory Abuja delivered on 24/04/03. The appellant as plaintiff in the high court vide a motion ex-parte filed on 16th of July 2002, prayed the court for issuance of a writ of summons under the undefended list. Consequent to the grant of the application the writ of summons accompanying the affidavit in support was filed, duly marked and entered under the undefended list.
The respondent then the defendant after two adjournments filed a notice of intention to defend on the 26th of March 2003 raising therein issue of forgery and he also counter claimed. The learned counsel for the appellant objected to the notice of intention on the basis that it was filed out of time and without leave of court, counsel contended that the only application before the court is to grant leave to defend the action supported by an affidavit. He urged the court to discountenance the notice of intention to defend but if the court is minded to consider same he submitted that the defendant had not raised any triable issue to warrant the court to transfer the case to the general cause list. The trial court in a reserved judgment on 29/04/2003 after hearing the learned counsel for the respective parties on whether the respondent can defend held thus:
“I have gone through the affidavit of the Plaintiff and the Exhibits attached, the court has equally went through the notice of intention to defend filed by the Defendant including the affidavit and exhibits attached to the notice of intention to defend.
The fact that the notice of intention to defend was filed out of time will not preclude this court from looking at the said notice of intention to defend.
The Defendant denied authorizing of Exhibit A1 attached by the Plaintiff and further alleged forgery, for the proper determination of this matter pleadings have to be exchanged and evidence given, so as to know whether Exhibit A’ was forged or not, for this reason this matter is transfer to general cause list, the plaintiff to file its statement of claim within a period of two weeks and defendant to file her statement of defence within 30 days of receiving the statement of claim.”
The appellant being dissatisfied with the reproduced decision of the trial court caused a notice of appeal to be filed on 14/05/2003 containing two grounds of appeal, which without the particulars reads as follows:
GROUND OF APPEAL:
1. “The learned trial judge erred in law in refusing to enter judgment for the Appellant and transferring the suit to the general cause list and this error occasioned a miscarriage of justice.
GROUND TWO:
The learned trial judge erred in law when he held that the Notice of intention to Defend filed out of time will not preclude the court to look at the said Notice of intention to Defend, this error occasioned a failure of justice.”
In line with the practice and rules of this court, parties filed and exchanged written briefs. The appeal was initially heard on 09/11/2010 and in the cause of writing the judgment, the court observed that the record of appeal was incomplete because the Notice of Intended to defend filed on 26/03103 and relied on by the trial court in the decision and proceedings was not in the record of appeal. The learned counsels were served hearing notice on the directive of this court to appear on 24/02/2011. On appearance they were informed by the court of the incomplete record, pursuant to which a motion on notice was filed on 10/03/2011 seeking leave to file and use supplementary record of appeal. Application was granted on the 14/03/10 and the supplementary record of appeal filed on 10/03/2011 was deemed as duly filed and served. Parties had filed and exchanged written briefs. At the hearing of the appeal on 14/03/2010 the learned counsel for the Appellant A. B. Dodo adopted the appellants brief filed on 28/04/10 pursuant to an order made by court on 22/04/10. The brief was settled by Abdulhamid Mohammed. The learned counsel for the respondent did not appear in court he wrote a letter that he will be appearing before the Federal High Court on pre-election matter. The respondents brief settled by Bola Aidi filed on 27 105110 pursuant to the provisions under order 17 rules 9(a) of the rules of this court was treated as having been duly argued.
In the appellants brief filed on 28/04/2010 the learned counsel that settled the brief Abdulhamid Mohammed distilled a sole Issue for determination from grounds 1 and 2. This Issue reads thus:
“Whether from the facts and circumstances of the suit, the learned trial judge erred in law when the transferred the matter to the General cause list and refused to enter judgment in the suit.”
In the respondents brief, the learned counsel also formulated one sole Issue very similar to that of the appellant except for the phraseology which reads as follows:
“1. Whether from the facts and circumstances of this case, the learned trial judge erred in Law in refusing to enter judgment for this appellant by transferring the case to the general cause list.”
The respondents counsel also raised a notice of intention to rely upon preliminary objection in his brief. In line with the settled principle of law that once Issue of competence of an appeal is raised it should be determined first before the appeal is considered. I will first consider the preliminary objection raised by the respondent counsel in the respondent brief. The grounds of the objection are as follows:
“1. That the Appellant’s Notice of Appeal is incompetent and invalid.
2- That leave was not obtained before the filing of the Notice of Appeal.
3. That the Appellant has no right of Appeal
4. That the court lacks jurisdiction to entertain the Appeal.
In arguing the competency of the notice of appeal, the learned counsel for the respondent in the respondent brief submitted that the provision under Section 24 (2) of the Court of Appeal Act 2004, stipulates that an appellant appealing against an interlocutory decision is required to file his notice of appeal within fourteen days (14) from the date of the ruling complained against and ninety (90) days in case of a final decision of the court.
He cited Nwabueze v. Nwora (2005) 8 NWLR (Pt.926) pg. 1 at pg 19.
Learned counsel argued that the appellant is challenging the interlocutory ruling of the court below which was delivered on the 29th of April 2003 while the notice of appeal was filed on l4’h of May 2003, fifteen (15) days after the delivery of the ruling in clear violation of the provisions of S24 (2)(a) of the Court of Appeal Act thereby rendering the appeal incompetent.
He cited Alamieyesesha v. CJN (2005) 1 NWLR (pt.906) pg.60 at pg.77.
The learned counsel submitted that failure to file the within the fourteen (14) days and not obtaining leave for extension of time has rendered the appeal irredeemable incompetent.
He cited Yussuf v. Adewuvi Brother & Co (1991) 7 NWLR (Pt.201) pg 39 at 54.
On the effect of an incompetent appeal on the jurisdiction of the appellant court, he referred to Mosoba v. Abubakar (2005) 6 NWLR (Pt.922) pg.460 at 470.
Odufin v. Agu (1992) 2 NWLR (Pt.229) at pg.350. He urged the court to strike out the appeal.
It is significant to note that the appellant’s counsel did not file a reply brief in response to the grounds canvassed in the notice of objection. A reply brief is necessary when an Issue of law or an argument raised in the respondents brief calls for a reply. The draftsmen of the court of appeal rules in their wisdom specifically provided in the rules of court the effect of a counsel not filing a reply brief. I refer to order 17 rule 10 of the court of appeal rule 2007 which provides as follows:
“Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want to prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.
For ease of understanding I also reproduce order 17 rule 5 of the rules referred thereto. It reads:
“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 respondents brief.
Clearly, under rule 5, the appellant has an option to file a reply brief within fourteen days of service on him of the respondents brief. The rule goes further to provide that the reply brief shall deal with all new points arising from the respondents brief.
The purport of that provision is that the appellant is not under a duty to file a reply brief however where a respondents brief raises new points and he fails to react to same, the court pursuant to order 1 7 rule 10 of the rules of court shall deem the appellant to have conceded to all new points or Issues arising from the respondents brief. This provision in the rules of court is fundamental. The supreme court interpreting the provision of order 6 rule 10 of the court of appeal rules 2002 which provision is in pari-material to the 2007 provision on reply briefs held in Mini Lodge Ltd v. Nge 1 (2009) 18 NWLR (pt.1173) SC 254 per Adekeye:
“The function of a reply brief is to refute the new arguments in the respondents brief, A reply brief is necessary when an issue of law or argument is raised in the respondents brief which requires a reply by the appellant. Failure to file a reply brief can adversely affect the case of the appellant of the issues raised in the respondent’s brief fire weighty, substantial and relevant in law. A reply brief is not meant to re-argue or finetune an appellant’s case. A reply brief has no connection or affiliation with the cross-respondents brief and can only be filed by an appellant in the main appeal or cross-appeal” See also Mozie v. Mbamalu(2006) 15 NWLR (Pt 1003) 460 pg 469
The appellant did not file a reply brief and is deemed to have conceded to the new points. Nevertheless the court is still enjoined to consider the merit of the objection. S 24 (2) of the court of appeal Act 2004 stipulates as follows:
“The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days front the date of the decision appealed against.”
Clearly by the aforesaid provision any aggrieved party to a decision of the High Court in respect of an interlocutory decision in a civil cause or matter should file a notice of appeal within fourteen (14) days from the date of the decision. This provision in the Act is mandatory. Any party aggrieved by an interlocutory decision and decides to file a notice of appeal must file it within fourteen (14) days of giving the decision. See Tukur v. Govt. Gongola State (1990 5 NWLR (pt.447) 186 CA. Nwabueze v. Nwora (2005) 8 NWLR (pt.926) pg 1.
The decision for which the appellant is dissatisfied with, was delivered on 29th April, 2003. It was a decision that did not finally dispose of the rights of the parties to the suit. The decision that the undefended suit be transferred to general cause list did not finally dispose off the right of the parties to the suit.The decision is an interlocutory decision on what procedure should be followed for the hearing of the claim.
The appellant cannot therefore file his notice of appeal outside the statutory prescribed period of fourteen (14) days unless extension of time to appeal is sought and granted. The appellant from the notice of appeal filed on 14/05/2003 at page 39 of the record of appeal filed the notice of appeal fifteen (15) days from the date of the decision. I agree with the learned counsel for the respondent that the notice of appeal is incompetent. Where the statutory right in which to exercise a right of appeal has expired and a notice of appeal is filed without the leave of court the court is divest of jurisdiction to hear the appeal. The notice of appeal is the foundation of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it.
See Uwazurike v. A.G. Fed. (2007) 8 NWLR (Pt.1036) 1 SC.
Mosoba v. Abubakar (2005) 6 NWLR (Pt.922) Pg. 460 at 470.
Once the notice of appeal is defective as in the instant case where the notice is incompetent, the court is under a duty to strike out the appeal in its entirety.
See Uwazuike v. A.G. Federation Supra.
A.G. Federation v. Guardian Newspaper Ltd (1999) 9 NWLR (Pt.618) 187 SC Order 6 rule 6 of the court of appeal rules 2007.
It is rather regrettably that learned counsel takes certain procedural processes for granted. Once a counsel is briefed to appeal a decision he owes his client a duty to look at the laws relating to appeals and comply with the provision on mode and time for commencement of an appeal. The suit in the trial court commenced in 2002 and the Notice of Appeal was filed on the 14/05/2003. It has taken a period of about seven years for the parties involved in the dispute to realize based on the decision of this court today that the appeal filed was not competent. A careful research and due diligence on part of counsel would have saved the parties the time, expenses and tension of litigation. This lack of industry on the part of counsel is unfortunate.
In the final analysis this appeal is incompetent as the notice of appeal is defective abinitio and is hereby struck out. Having struck out the notice of appeal I will still proceed to look at the second ground of the objection in the respondent’s brief which is founded on the provision under S. 241 (2) (a) of the 1999 constitution. S. 241 (2) (a) of the 1999 constitution stipulates as follows:
2. Nothing in this section shall confer any right of appeal
“(a.) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
The wordings above reproduced in the provision should be ascribed its natural and grammatical meaning in construction. The law is crystal clear under S. 241 (2)(a),there is no right of appeal by a party aggrieved by a decision of the High Court granting unconditional leave to defend an action. There is only a right of appeal where a conditional leave to defend is granted.
See Awuse v. Odili (2005) 16 NWLR (pt.952) CA 416.
The constitutional provision under S. 241 (1) does not vest a right of appeal either as of right or with leave under sub-sections (a) and (b) of S. 241(1). The right of appeal from the decision of courts in Nigeria is conferred by the constitution. A decision of the high court granting an unconditional leave to defend an action is not appealable. I am fortified by the decision of the Supreme Court in National Bank of Nigeria Ltd v. Weido & Co (1996) 8 NWLR (pt.465) 150-155 where in interpreting the provision under S. 220 (2) of 1979 constitution which provision is in pari-material with S. 241 of the 1999 constitution. Ogwuegbu JSC had this to say:
“It seems to me that the legislature having set out the situations where an intending appellant can appeal to the Court of Appeal as of right in section 220(1) of the Constitution and made other provisions in section 221(1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in subsections 220(2) (a), (b) and (c) of the 1979 Constitution. In fact the exclusion in my view is absolute in sub-sections 220(2)(a) and (b) whereas sub-section (2)(c) is qualified in the sense that with leave of the High Court or the Court of Appeal, the right of appeal against a decision made with the consent of the parties or as to costs only is preserved.”
The trial Court ordered the transfer of the writ to the general cause list from the undefended suit with no conditions attached to the leave to defend the action. From the forgoing, I find merit in the grounds in support of the Notice of Preliminary objection. The notice of preliminary objection is sustained the notice of appeal is found incompetent.
Consequently, this interlocutory appeal also remains incompetent and is struck out. I make no order as to cost, each party is to bear its own cost.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother REGINA OBIAGELI NWODO, JCA in this appeal. The views expressed on the preliminary objection are restatements of the principles of law on the grounds of the objection. I completely agree with them and join in upholding the preliminary objection on the said grounds and strike out the notice of appeal for being incompetent. I also abide by the order on costs made in the lead judgment.
PAUL ADAMU GALINJE, J.C.A.: My learned brother Nwodo JCA has adequately dealt with all the issues raised in this appeal.
I agree with the reasoning and conclusion in the judgment that the appeal is incompetent and ought to be struck out. I accordingly strike out the appeal and endorse all the consequential contained therein.
Appearances
A. B. DodoFor Appellant
AND
Bola Aidi absentFor Respondent
