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.
My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V.
Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill.
See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER GEORGEWILL, J.C.A.
My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V.
Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill.
See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER GEORGEWILL, J.C.A.
Arguments in an appeal must be based on what is contained in the record of the appeal. Allegations of events not contained in the record are not valid for consideration. Arguments on the basis of facts not contained in the record of appeal are incompetent. See Akpan v. The State (1987) 5 SCNJ 112; (1992) 6 NWLR (Pt. 248) 439 . PER EMMANUEL AKOMAYE AGIM, J.S.C
It is now well-settled that arguments in the appellant’s brief must be covered by, or related to, the Grounds of Appeal, Bamgboye v. Olarewaju (1991) 4 NWLR (pt. 184) 132; Momodu v. Momoh (1991) 1 NWLR (pt. 169) 608, 620; Godwin v. CAC (1998) 14 NWLR (pt. 584) 162. EMMANUEL AKOMAYE AGIM, J.S.C.
THE SETTLED LAW ON A CLAIM FOR LOSS OF A SPECIFIC AMOUNT AS PROFIT The law is settled by an unending line of decisions of this Court that a claim for loss of a specific amount as profit or earning is in the class of claim for special damages. See for example, Odumosu V ACB Ltd (1976) 11 SC 55, Uwa V ITC (1988) 12 SC(PT2) 102 AT 122-123, Attorney General of Oyo State V Fairlakes Hotel (1989) 12 SCN3 1 at 22 and UBA PIc V IBTL Ind. Ltd (2006) 19 NWLR (171013)61. EMMANUEL AKOMAYE AGIM, J.S.C.
It is noteworthy that arguments on an issue in an appeal are circumscribed by the grounds of appeal contained in the Notice of Appeal. Therefore, any argument canvassed on an issue raised in the Brief of Argument which does not find within the confines of any of the grounds of appeal goes to no issue and must be so discountenanced.
I rely in this regard on the decision of this Court in the case of Okelola v Boyle (1998) 2 NWLR (pt.539)533 at 546, where it was held that: “This Court has laid it down in a number of cases that an appeal will only be determined on issues arising out of grounds of appeal before the Court and no arguments on any issue not predicted on such grounds of appeal will be countenanced” See also: Nsirim v Amadi (2016) 5 NWLR (pt.1504) 42 at 60 and Goke Olaolu v FRN (2016)3 NWLR (pt.1498) 133 at 157.
Flowing from the above, the lower Court was in gross error when it proceeded to countenance the arguments canvassed by the Respondent in respect of the substantive jurisdiction of the trial Court as that issue or point is not covered and/or not within the confines of any of the grounds of appeal before the lower Court. Hence, the decision of the lower Court on the issue of the trial Court’s substantive jurisdiction being predicated on arguments which cannot find location in any grounds of appeal cannot be legally sustained and renders such decision liable to be set aside.
PER MARY UKAEGO PETER-ODILI, J.S.C .