It is well established principle of law that where an appellant fails to file his brief of argument within the time stipulated by Order 6 Rule 10 of the Court of Appeal Rules 1981 or within the time extended in his favour by the Court of Appeal as in this instant case, the respondent may apply to the Court pursuant to Order 6 Rule 2 of the same rules for the said appeal to be dismissed for want of prosecution under the same Rules. See Thomas Eminy Olumesan vs Ayodele Ogundepo (1996)2 NWLR (pt.433)628. In such situation, the appeal is deemed abandoned by the appellant and must therefore be struck out. See Akibu & Ors vs Oduntan & Ors (2000)7 SCNJ 189; Sparkling Breweries Ltd & Ors Vs Union Bank of Nigeria Ltd (2001)7 SCNJ 321.
My lords, it will not be out of place to refer to this Court's decision in Akanke Olowu & Ors V Amudatu Abolore (1993)5 NWLR (pt.255) where this Court per Karibi-Whyte JSC had this to say.
"It has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant's brief of argument is final. The appeal so dismissed can not be revived."
This Court in the above mentioned case further held that once the Court of Appeal has dismissed an appeal for want of diligent prosecution due to appellant's failure to file his brief of argument, that Court becomes functus officio on that matter.
Unfortunately, the testimonies, which he, [the appellant], adduced were so evidently contradictory and inconsistent that they could not establish that the said exhibit was the result sheet of a primary election, the conduct of which, was authorized by the National Working Committee of the second respondent as required by law. The effect is that these conflicting versions render his evidence very unreliable and untenable, C. D. C. (Nig.) Ltd v SCOA (Nig.) Ltd [2007] 6 NWLR (pt. 1030) 300. This must be so because such contradictions in the evidence of the plaintiff and his witness are disastrous; they, actually, have the effect of destroying the case of the plaintiff, Audu v Guta [2004] 4 NWLR (pt 864) 463.
As this Court held in National Investment Properties Co. Ltd v The Thompson Organization Ltd and Ors (1969) NMLR 99, 104:
A Plaintiff must call evidence in support of his pleadings and evidence which is in fact adduced, which is contrary to his pleadings, should never be admitted. It makes no difference that the other side did not object or that the Judge did not reject it. It is of course the duty of counsel to object to, in one word, inadmissible evidence; but if notwithstanding this, evidence is still, through oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.
The explanation for this prescription is simple: the standard of proof is on the preponderance of evidence.
Thus, where the evidence adduced by the plaintiff is contradictory, he would have failed to discharge the onus of proof on him, Yakubu v Jauroyel and Ors (2014) LPELR-22732 (SC) 69; E -G. That was the fate of the plaintiff's case at the trial Court. His case must, therefore, fail.
As settled on the authorities, the function of a reply brief is to refute the new arguments in the respondent's brief, that is, a reply brief is usually filed in response to new issues raised in the respondents brief. Sakati v Bako and Anor (2015) LPELR -24739 (SC) 25, Godsgift v State (supra); Unity Bank Plc v Bouari (2008) LPELR -3411 (SC) 29 -30; B-C; Cameroon Airlines v. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A; Longe v FBN Plc [2010] 2-3 SC 61; Mozie and Ors v. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.
Although it is not mandatory for an appellant to file a reply brief. However, where a respondents brief raises a point of law not covered in his (appellants) brief, he (appellant) ought to file a reply (brief). Indeed, where he fails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent's brief, he may be deemed to have conceded to the points of law or issues so raised in the respondent's brief.
The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift v State (supra); Longe v FBN Plc (Supra); Harka Air Services (Nig) Ltd v. Keazor (2011) 6-7 (Pt. II) 1; Dairo v Union Banks (2007) 7 SCNJ 13; Mini Lodge Ltd v. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F; A.C.B v. Apugo (1995) 6 NWLR (Pt. 399) 65 E.I.I.A v. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119: Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Akinrinmade v Lawal [1996] 2 NWLR (pt 429) 218; Musaconi Ltd v Aspinall (2013) LPELR-20745 (SC) 21-22.
I only need to add that the Court of law, as the Court below, cannot abdicate its judicial responsibilities merely because the process, in this case the brief of argument, was clumsily and badly drafted. The fact that a brief of argument was poorly written does not discharge the Court from its duty of doing substantial justice to the parties before it. See AKPAN v. THE STATE (1992) 6 NWLR (Pt.248) at 471. The lawyer who imposes a poorly written brief on the Court has only increased the burden of the Court in the preparation of the decision in the matter. Once the Court can decipher the substance from the poorly prepared process, it should do the best it can from such an inelegantly or poorly prepared brief of argument or any other Court process that suffers such inelegance. See THE OWNERS OF MV ARABELLA v. NIG. AGRIC. INSURANCE CORPORATION (2008) 4 – 5 SC (Pt.II) 189; EKPEMUPOLO & ORS v. EDREMODA & ORS (2009) 3 – 4 SC 56; LASISI OGBE v. SULE ASADE (2009) 12 SCNJ 288; L. Y. DAKOLO & ORS v. REWANE – DAKOLO (2011) LPELR 915 (SC).
The aim or purpose of brief writing is not to serve as an end in its itself but to aid the process of quick dispensation of justice. Adherence to strict technicalities will stand to defeat the very cause of justice which was set out to be achieved. Substantial justice should be the aim or the order of the day. See also the case of Obiora v. Osele (1986) 1 NWLR (Pt.97), p.289 at page 302 wherein Oputa JSC, said:-
Again and as happened in Akpan v. Uyo (supra) after this richly deserved censure of learned counsel Mr. Ijaodola, this Court did not dismiss his appeal because his brief was really no brief no the Court considered the merits of the appeal and in the end allowed the same, the faulty and inconsequential brief notwithstanding. The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, not in technicalities. These should all aid justice and not defeat it.
The denial of justice to the appellant on the form of its brief, (which does not affect the substance of the brief), has impeded the appellants right to fair hearing.
Be that as it may, there are numerous authorities on the principle that despite the inelegance or flaws in a Party's brief of argument, an appellate Court has a duty to examine the arguments therein, and decide the case on its merit – see Ekpemupolo V Edremoda(2009) 8 NWLR (Pt. 1142) 166 SC, Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 SC, and the locus classicus on the subject – Obiora v. Osele (1989) 1 NWLR (Pt.97) 279, wherein Oputa, JSC, aptly stated:
It is my view that the filing of these Briefs (no matter how faulty each is, or all of them are), does indicate a willingness, an eagerness and a readiness on the part of the Appellant to prosecute his appeal. A bad, faulty and/or in elegant Brief will surely attract adverse comments from the Courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief, which is faulty. One cannot close ones eyes to the fact of its existence.
The undisputed facts in this application remains that were over 54 weeks after receipt of the Record of Appeal the Applicants herein, as Appellants, failed or neglected to file their brief of argument as required by Order 6 Rule 5(1) of the Rules of this Court. When an Appellant fails to file his brief the presumption is that the appeal has been abandoned and it becomes liable to be dismissed: OYEYIPO v. OYINLOYE (supra); CHIME v. UDE (supra). See also ADERIGBIGBE v. TIAMIYU (2009) 10 N.W.L.R. (Pt. 1150) 592; AKIBU & ORS. v. ODUNTAN (2000) 7 S.C.N.J. 189; SPARKLING BREWERIES v. U.B.N. (2001) 7 S.C.N.J. 321; CORNELIUS LTD v. EZENWA (1996) 4 S.C.N.J. 123; NKEDO v. OBIENO (1997) 5 S.C.N.J. 33.
SECURITIES AND EXCHANGE COMMISSION &
The first reason is that Order 18 Rule 10 (1) Court of Appeal Rules 2011 (Order 19 Rule 10 (1) Court of Appeal Rules 2016), provides that where an appellant fails to file his brief within 45 days within the time provided in Rule 2 of Order 19 therein, or within the time as extended by the Court, the respondent can apply for the dismissal of the appeal or the Court may sou motu dismiss the appeal for want of prosecution.
So Order 18 Rule 10 (2) of 2011 Rules that gives the Court of Appeal the power to dispose of the appeal in such situation prescribes the order it can make as one of dismissal . -PER EMMANUEL AKOMAYE AGIM, J.S.C.
This Court in the case of ADEFEMI v. ABEGUNDE (2004) ALL FWLR (Pt. 303) 2009 at 2125 per Onnoghen, JCA, (as he then was), stated thus: “The legal effect of filing the brief of the 3rd-6th Respondents out of time and without an order of this Court extending time to do so is that there is no legally recognizable brief of argument in respect of the 3rd – 6th Respondents in this appeal. This Court cannot look at the purported brief of argument filed on 4/8/03 since it is not properly before the Court, having been filed in the circumstances earlier stated.
The said Brief is hereby discountenanced by this Court.” Applying the above dictum of Onnoghen, (as he then was), this Court in the case of OJIGHO v. MUKORO (2013) LPELR-20871 (CA) discountenanced the Appellants’ Brief in that case and upheld the preliminary objection that there was no Appellants’ Brief in respect of the Appeal. I have no alternative but to come to the same conclusion here, having found in considering the preliminary objection that the Appellants’ Brief is incompetent having been filed out of time and having not been regularized.
The effect is that the appeal is ought to be dismissed pursuant to Order 19 Rule 10 (2) of the Court of Appeal Rules, 2016. The further result is that the purpose of the preliminary objection which is to foreclose the further hearing of the appeal, has been achieved. Appeal is dismissed. No order as to costs. PER DANIEL-KALIO, J.C.A.
By law, failure to file a respondent’s brief, does not amount to admission of the Appellant’s case and to success of the appeal. See Onyenawul Vs Onyenawuli (2017) LPELR – 42661 (CA) and Skye Bank & Anor Vs Akinpelu (2010) LPELR – 3073 SC, where it was held: “But I must add quickly, this is firmly established, that failure to file a Respondent’s brief, is immaterial as an Appellant, must succeed or fail, on the strength of his own brief or case. See the cases of Management Enterprises Ltd. & Anor v. Otusanya (1987) 4 S.C. 367; (1987) 4 SCNJ 110; John Holt Ventures Ltd. v.
Oputa (1996) 9 NWLR (Pt.470) 101 AT 112 and Onyejekwe v. The Nigeria Police Council & Anor (1996) 7 NWLR (Pt.463) 704 AT 710 just to mention but a few.” PER MBABA, J.C.A.
Be that as it may, it is very important to point out, for the avoidance of doubt, that it is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Failure of the Respondent to specifically answer the issues raised by the Appellant is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent; See DANA Ltd vs. Oluwadare (2006) 39 WRN 121.
The effect of failure to respond to issues raised in the Appellant’s brief of argument is that the Respondent has conceded to issues raised by the Appellant; see EIGBE VS. N.U.T (2008) 24 WRN 110 AND INAKOJU VS. ADELEKE (2008) 130 WRN 1. PER MUSTAPHA, J.CA.