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In The Supreme Court of Nigeria

On Friday , 4th day of May 1990  

SC 213/1988

 

Before Their Lordships

 

 

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

 

 

Between

 

 

Ebenezer Nwokoro

Zephaniah Osuji

Obed Ejeku

Vincent Orji

Eugene Unanka

Hilary Madu

Peter Nnadi

(for themselves and representing Ununkpele and Umuezem Villages of Ugirike-Ikeduru, Owerri)

.......

Appellant

 

 

And

 

 

Titus Onuma

Patrick Opara

(For themselves and on behalf of Ndiogi Village, Ugirike-Ikeduru, Owerri)

.......

Respondent

   

 

Judgment of the Court

Delivered by

Adolphus Godwin Karibi-Whyte. J.S.C.

 

 

On the 6th February, 1990, this Court by a unanimous decision summarily allowed the appeal of the appellants from the decision of the Court of Appeal Division, Port Harcourt; set aside the judgment of the court below and ordered a rehearing in that court. We stated that the reasons for allowing the appeal will be given today. This I now proceed to do hereunder.

 

The point involved in this appeal is very short. But it is crucial and fundamental to the question of fair hearing and the validity of the hearing of an appeal in appellate courts based on the papers considered by the court.

 

The facts of this case are as short as the point involved. The substantive issue relating to the claim by the plaintiffs/respondents for a declaration of title, damages for trespass and perpetual injunction against the defendants/ appellants, is not here in issue. The contention of the appellants is that the Court below did not determine the appeal on its merits. Chief Williams, S.A.N., learned senior counsel in his formulation of the only question for determination, stated; it is "Whether the judgment of the Court of Appeal can be allowed to stand when the learned Justices of the said court have clearly failed to consider the arguments presented to them in the Brief filed in support of the defendant's case."

 

Appellants who were also appellants in the court below had pursuant to their appeal, by counsel, filed their brief of argument. On the 12th day of March, 1986, Chief Ogbonna learned counsel to the appellant applied for an adjournment to amend his brief of argument. The application was granted with N100 as costs to the respondents by a panel of the court of Appeal consisting of Aseme, Olatawura and Katsina-Alu, JJ.C.A. On a motion dated the 27th March, 1986, with a supporting affidavit dated 2/4/86 Chief Ogbonna applied to the court formally to amend the brief of argument exhibited as Exhibit A, and to deem the brief as amended duly filed subject to payment of necessary Court fees. The motion was fixed for argument for April 21st, 1986.

 

In an application dated 27th October, 1986, Prince Nsofor, learned counsel for the respondents prayed inter alia extending time allowed respondents to file their briefs in respect of this appeal, and deeming the briefs so filed as validly filed. There is no record of appellants' application to amend their brief of argument having been heard by the court, for a determination whether it was granted or dismissed. It is however pertinent to observe that when this appeal came up for hearing in the court below on the 11th November, 1986, before Akpata, Abdullahi and Ogundere, JJ.C.A., Chief Ogbonna, learned counsel to the appellants stated that he was adopting his amended brief of argument dated 27th March, 1986. See p.338, 339 records of proceedings.

 

It became necessary for counsel to the appellants, Chief Ogbonna to A amend his original brief of argument, which omitted the important requirement of issues for determination in the appeal. In paragraphs 2, 3, 4, 5, 6 of the affidavit in support of the application to amend the brief of argument dated 2nd April, 1986, the following averments were made:-

 

2.     That some errors and mistakes were contained in the brief dated 19/8/85 filed by the appellants in this appeal as it was discovered that our Solicitor in preparing our said brief failed to include the issues arising in the appeal and said he abandoned grounds VIII, IX and X of the grounds of appeal.

 

3.     That there is need to amend our said brief to include arguments in grounds VIII, IX and X and also to state the issues arising in the appeal

 

4.     That these omissions have been included in the brief and constitute the only amendments proposed in the appellants' said brief.

 

5.     That I have exhibited our said proposed amended brief dated 27th March, 1986 marked Exhibit "A" for purposes of clarity.

 

6.     That the said arrangements are necessary for determining the real question in controversy in the appeal.

 

The motion, as I have already said, was fixed for hearing on the 21st April, 1986. This appeal was argued on the 11th November, 1986 before Akpata, Abdullahi and Ogundere, JJ.C.A.

 

In the lead judgment of the court read by Akpata, J.C.A., who after setting out the facts of the case and the grounds of appeal and issues involved went on to make the following observation,

 

The detailed brief of argument of 25 pages filed by learned E counsel for the appellants does not contain the issues arising in this appeal as required by Order 6 rule 3 of the Court of Appeal (Amendment) Rules 1984. It is a mandatory requirement which counsel should not gloss over. When a brief is filed which is not in conformity with the provisions of the rules, there is in effect no valid brief before the court. (See the case of Bioku v. Light Machine (1986) 5 N.W.L.R. (Pt.39) 42, the judgment of this Court (Lagos Division). As this court did not sight the error at the hearing of the appeal and the attention of counsel not drawn to it, the defective brief of argument will be made use of as it is. It is relevant to state that learned counsel for the respondents in his brief, relating to the cross-appeal, stated the issues arising from G the cross-appeal.

 

The learned Justice of the Court of Appeal then went on to formulate the issues arising from the appeal of the appellants as they appeared to him. Thus the Court of Appeal heard the appeal on a brief of argument of 25 pages, which did not contain appellant's formulation of the issues for determination arising from the appeal. The court was unaware or probably forgot that the brief of h argument adopted by counsel for the appellant during the hearing of the appeal was an amended brief of argument as was clearly stated by Chief Ogbonna before the court.

 

The Court of Appeal dismissed the appeal of the appellants and allowed cross-appeal of the respondents. The judgment of the trial Judge limiting respondents to the portion of the land in dispute not yet cultivated was set aside, and the following Orders were substituted;

 

1.     Plaintiffs are entitled to the customary right of occupancy of the entire parcel of the land verged yellow in Exhibit A tendered by the respondents.

 

2.     The defendants, their agents and servants are hereby restrained from further trespass on any portion of Orie Ofor land verged yellow in Exhibit A.

 

3.     The defendants are to pay the plaintiffs N200 (Two hundred naira) special and general damages for trespass.

 

4.     I assess the costs of this action at N800 (Eight hundred naira) to be paid to the plaintiffs by the defendants.

 

Defendants have now appealed to this court. Five grounds of appeal were filed. But I intend to reproduce only ground one, which is the only ground of appeal, relied upon by the appellants in this appeal.

Ground one with particulars of error, reads –

 

 

Ground 1: Error-In-Law & Misdirection-In-Law

 

The lower court erred in law and misdirected itself in law when it failed to consider the appeal on the basis of the appellants' brief and the issues raised therein and when it stated in its judgment (in spite of the fact that the appellants filed an amended brief of 27 pages dated 2713186 and argued their appeal by reference to their said amended brief) as follows:-

 

That detailed brief of argument of 25 pages filed by learned counsel for the appellants does not contain the issues arising in the appeal as required by order 6 rule 3 of the Court of Appeal (Amendment) rules 1984. It is a mandatory requirement which counsel should not gloss over. When a brief is filed which is not in conformity with the provisions of the rules, there is in effect no valid brief before the court, (see the case of Bioku v. Light Machine (1986) 5 N.W.L.R. (Pt.39) 42 The judgment of this court (Lagos Division). As this court did not sight the error at the hearing of the appeal and the attention of counsel not drawn to it, the defective brief of argument will be made use of as it is

 

Particulars of Error And Misdirection

 

(i)     The appellants filed an earlier brief of 25 pages, which was later superceded by an amended brief filed with leave of the Court of Appeal. The Amended brief of 27 pages dated 27/ 3/86 was the subsisting appellants' brief in the case and contained 8 issues for determination.

 

(ii)    The lower court failed to consider the appeal on the basis of appellants' brief i.e. the amended brief dated 27/3/86 and proceeded to formulate issues and determined the appeal on the basis of another document which was not the subsisting appellants' brief …….

 

Counsel to both parties filed their briefs of argument, which they relied upon and expatiated, in oral argument before us. The only question for determination formulated by Chief Williams, S.A.N., Senior Counsel to the appellants and adopted by Prince Nsofor, counsel to the respondents is as follows –

 

Whether the judgment of the Court of Appeal can be allowed to stand when the learned Justices of the said Court have clearly failed to consider the arguments presented to them in the Brief filed in support of the defendant’s case

 

In his brief of argument which he elaborated before us, Chief Williams referred to the judgment of the Court of Appeal, and to the reference therein of "the detailed brief of argument of 25 pages filed by learned counsel for the appellants does not contain the issues arising in the appeal as required by order 6 Rule 3 of the Court of Appeal (Amendment) Rules 1984" which is a mandatory requirement, consequently there was no brief properly so called before the court, but went on to rely on this defective brief, because as it was stated in the judgment.

 

As this court did not sight the error at the hearing of the appeal and the attention of counsel not drawn to it, the defective brief of argument will be made use of as it is.

 

Chief Williams pointed out that it was clear from the above observation that the Brief relied upon by the court below in the determination of the appeal was that of 25 pages, which did not contain the issues arising in the appeal. Counsel went on to point out that on the 12th March, 1986, a different panel of the same court had granted leave to appellant to amend his brief of argument. There is record that appellant actually moved for leave to amend his brief and to deem the brief attached to the affidavit in support of the motion as duly filed subject to the payment of necessary court fees. He pointed out that the proceedings of the 21/4/86 were not copied and it was therefore difficult to say whether the motion was granted or not. He concluded that if the motion on notice was not taken, then an obvious miscarriage of justice would have occasioned. Counsel urged us to allow the appeal; set aside the F judgment of the court below and order a rehearing of the appeal on the basis of the appellant's amended brief in the court below.

 

In his own reply both in his brief of argument and in his oral submission, Prince Nsofor for the appellants conceded that the amended brief of argument was not relied upon but submitted that the Court of Appeal dealt with the grounds of appeal filed by the appellants and respondents. He argued G that counsel to the appellants in his amended brief of argument dated 27/3/86 posed eight questions for determination but failed to relate the issues to the grounds of appeal; It was submitted that the Court of Appeal was right in treating the appeal on the grounds of appeal filed by both parties.

 

Prince Nsofor then went on to contend why the appeal ought to be dismissed. He argued that the court acted on the grounds of appeal, which were in pari materia in the two briefs. Again the Court of Appeal considered the main issues raised in the appeal. It was also argued that it would amount to unnecessary delay if the appeal were to be remitted to the court below for rehearing. Finally Prince Nsofor submitted that if the contention of appellant was true that the amended brief of argument was not used in the appeal in the court below, then the record of the court below is incomplete since the which they relied  proceedings of the 21/4/86 were not copied. It was argued that the Supreme Court cannot act on incomplete records or suppositions.

 

I think it will be difficult for counsel who was also counsel in the court below, to deny or doubt that appellant filed an amended brief of argument which was fixed for hearing for the 21st April, 1986. The record of proceedings is unequivocal as to the effort to file the amended brief of argument. Furthermore, as I have already pointed out in my statement of the facts, on the hearing of this appeal on the 11th November, 1986, Chief Ogbonna, learned counsel to the appellants told the court he was adopting his amended brief of argument dated 27th March, 1986 (see pp.338-339 record of proceedings). The position was thus clear that counsel was not relying on an earlier brief. I have no doubts that the court so understood him or ought to so understand him when he made the assertion. If the court was in doubt, the onus was on it to find out the correct position.

 

On a consideration of the issue for determination in this appeal, the pith and substance of the contention of the appellant was that the court below considered and gave judgment on his grounds of appeal without reference to of the appeal his arguments in support of the grounds of appeal.

 

It is necessary to observe that Prince Nsofor, counsel for the respondents would seem to me to have misunderstood the thrust of appellant's case. Counsel appears to have in his argument, relied on an alleged similarity between the original brief and the amended brief, and the fact that the Court of Appeal considered the grounds of appeal filed by the appellants. In his view the omission in not considering the amended brief of argument has not occasioned a miscarriage of justice because in his opinion the court would not have come to a different decision from that which it did even if the amended brief of argument was relied upon. It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it. The Constitution has delegated the regulation of the procedure to be adopted to the Chief Justice of Nigeria, the President of the Court of Appeal and Chief Judges for the Federal High Court, and the High Court of States. In order to take full advantage of the delegation of such powers by the Constitution 1979, the President of the Court of Appeal made regulations enabling parties to a matter before the court to state their case by the filing of briefs of argument, presenting with accuracy, brevity and precision, the substance of their cases before the court. The rules governing the filing of briefs prescribe its content, regulates the time it shall be filed and served on the opposite party, the time when the opposite party is expected to reply and the number of copies to be served. There are also was right in penalties for non-observance of the time prescribed. Generally, oral argument may be allowed to elaborate on the contents of the brief.

 

The brief shall be taken as containing the arguments of the parties. Hence parties are, each allowed oral argument for one-hour to enable elaboration of content of their briefs. A brief has been defined as a condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the appeal; together with the reasons and authorities which can sustain them - See Duncan v. Khler 37 Minn, 379.

 

A brief of argument is prima facie exhaustive of the arguments intended A to be presented. Hence no oral argument is allowable except by leave of the court in support of any argument not raised in the brief or on behalf of any party in respect of whom no brief has been filed. Where parties who have filed briefs of argument are absent at the hearing, the appeal will be treated as argued on the briefs filed. This is also the position where only one of the parties had filed his brief. Thus the obligation to hear the other side, i.e. audi alteram partem is observed by the filing of briefs which is taken to represent the case of the party in the litigation.

 

Now, in the instant case, the court below recognised that appellant's brief of argument was defective and held that in effect there was no valid brief of argument on behalf of the appellant before the court which they could rely upon. The question to be decided therefore is whether the court below was in the circumstances right to have decided the appeal before it on a brief of argument known to be defective and consequently invalid? In other words has the court below heard the Appellant in the appeal before it by relying on the brief of argument known to be defective, rejected and in-valid, when there was before the court an amended version of the brief of argument which has taken into account the observations of the court to the defect in the rejected brief of argument. It seems obvious from the dictum of the court reproduced in this judgment, that the court was not aware, although it should have been, of the existence of the amended brief of argument, even though counsel to the appellant was recorded as having stated in his opening speech that he adopted his amended brief of argument dated 27/3/86.

 

It is clear from perusal of pages 338-341, that counsel to the appellant relied on the amended brief of argument dated 27/3/86 and based his oral argument on it. Similarly, counsel to the respondents relied on it for his reply. Consequently counsel on both sides relied on the arguments in the amended brief of argument dated 2713186. It is on the basis of this amended brief that counsel urged the court below to decide the appeal. There is therefore no F doubt that there was before the court an amended brief of argument. The attention of the court below was drawn to it, and argument in respect of the appeal presented to the court relying on the amended brief of argument.

 

It is a fundamental principle of legality that where an act or course of conduct fails to meet with the requirements prescribed by law, such that the non-compliance renders the act or course of conduct devoid of legal effect G no legal consequences flow from such acts or course of conduct. Hence, in the instant case, the court below having recognised the defect of the original brief of argument, for its non-compliance with Order 6 r.3 of the Court of Appeal (A mdt.) Rules 1984, had no brief of argument before it on behalf of the appellant. The court below could not therefore be heard to talk of making use of and relying, on the defective brief of argument as it is - See Bioku v. Light Machine (1986)5 N.W.L.R. (Pt.39) 42.

 

In the absence of a brief of argument properly so called, and the court having not dispensed with the filing of briefs, the amended brief of argument adopted and relied upon by the parties not considered by the court, it seems to me therefore obvious that the case of the appellant which was before the court below was not considered by that court. A party is entitled as of right to the consideration of his case before the court. Thus where the court has relied on the case abandoned by the litigant in the determination of his grievance before it, it will not only be a misuse of the expression that he has been given a fair hearing, it will also be more accurate to say that he was not heard at all. The effect goes beyond the definition in Mohammed v. Kano Native Authority (1968) All N.L.R. 424 where Ademola, C.J.N., said,

 

The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation justice has been done in the case...

 

That the appellant had a hearing in the instant case cannot be disputed. What is being disputed is that the hearing was fair to the appellant as he conceived his case, and on the case he presented. It was the result of an error by the court itself that appellant's case was considered on the arguments he had already abandoned. The effect of the error was that the case presented by the appellant was not considered. It is difficult to conceive that a reasonable man who present at the trial and observing would agree that justice had been done in the case to the appellant.

 

It is the primary obligation of every court to hear and determine issues in controversy before it, and as presented to it by the litigants. The court cannot suo motu formulate a case for the parties. Hence the principle of fair hearing not only demands but also dictates, that the parties, to a case must be heard on the case formulated and presented by them. It is only then that the concept of fair hearing will have a real meaning.

 

Prince Nsofor for the respondents, submitted to us that on a perusal of the judgment it was clear that the learned justices of the Court of Appeal considered the main issues raised in the appeal, since the appeal was decided on the grounds of appeal filed by the appellant. Counsel also submitted that issues for determination formulated by the court were issues in the appeal and covered all the issues put forward by the appellants.

 

It seems to me learned counsel for the respondents misconceived and not quite grasped the contention of counsel to the appellants. All I understood counsel to the appellant to be saying is that, the case of the appellants is contained in his amended brief of argument dated 21/3/86. The court below in determining his appeal did not consider the case he made in the amended brief of argument before the court, rather relied on his abandoned brief of argument. The argument by counsel to the respondents that the court below considered the main issues in the appeal since the appeal was decided on the grounds of appeal filed by the appellant and the issues for determination covered all the grounds is not an answer. The crucial factor and weakness in this argument is that the appeal was not argued on the grounds of appeal filed simpliciter but also on the briefs of argument filed. The assumption is that although the court below relied on the abandoned briefs of argument and that since the amended brief of argument which was not used covered the same grounds of appeal as the one abandoned which was relied upon; the result would have been the same in any event. This is a curious argument and non sequitur. Since the original brief of argument had been abandoned, it can no longer be part of the case of the appellants and should not have been used, and there is no basis for the comparison. I therefore do not consider the submission of Prince Nsofor for the respondent as juridically valid.

 

I am therefore satisfied that the court below did not consider the appeal of the appellant on his brief of argument.

 

 

Judgment delivered by

Eso. J.S.C.

 

I have had a preview of the comprehensive reasons given by my learned brother Karibi-Whyte, J.S.C., in this case. I am in full agreement and would not wish to add anything more to the reasons.

 

 

Judgment delivered by

Nnamani. J.S.C.

 

On the 6th February, 1990, this appeal came before this court. Having read the record of proceedings and after hearing learned counsel to the parties, I was satisfied that the appeal had merit and I allowed it. I remitted the case to the Court of Appeal, Port Harcourt Division for hearing before another panel and indicated that I would give my reasons for C this judgment today. I now give the reasons.

 

The issue in this appeal is quite narrow. The complaint of Chief Williams, S.A.N., is that the Court of Appeal denied the appellants a fair hearing in that that court decided the issue between the parties without reference to the appellant's amended brief of argument filed with leave of court. When the earlier appeal came before the Court of Appeal in Enugu (coram: Akpata, J.C.A. (as he then was), Abdullahi, J.C.A. (as he then was) and Ogundere, J.C.A.) on 11th November, 1986, learned counsel to the appellants there, Chief Ogbonna clearly informed the Court in his opening remarks "I am adopting my amended brief dated 27/3/86." Despite this in his judgment Akpata, J.C.A. (as he then was) commented,

 

For the purpose of this appeal the defendants will be referred to as the appellants while the plaintiffs will be called the respondents. The detailed brief of argument of 25 pages filed by learned counsel for the appellants does not contain the issues arising in the appeal as required by Order 6 Rule 3 of the Court of Appeal (Amendment) rules 1984. It is a mandatory requirement which counsel should not gloss over …… As this court did not sight the error at the hearing of the appeal and the attention of counsel not drawn to it the defective brief of argument will be made use of as it is.

 

He then proceeded to formulate issues arising from the appeal of the appellants.

 

It would appear that in making these observations the Court of Appeal G was oblivious of the order made by another panel of the Court on 21st April, 1986 allowing the appellants to file an amended brief of argument. That brief was indeed deemed to be properly filed. In effect therefore the Court of Appeal decided the appeal before it without looking at the case of the appellants as contained in their amended brief of argument in which they also formulated issues for determination.

 

In oral argument, Chief Williams merely contended that by using the wrong brief the Court of Appeal did not hear the appellants. Prince Nsofor, for the respondents contended that there was no substantial difference between the two briefs and he referred the court to pp.247-271 and pages 284-310 of the record. He said the only difference is that the amended brief contained issues for determination, learned counsel was however, unable to show that there had been no miscarriage of justice.

 

It is clear that the difference between the two briefs even if only the presence of issues for determination in one was substantial enough. The Court of Appeal decided the appeal in the context of issues it formulated as against 8 issues formulated by the appellants as issues arising from the appeal. The appellants were entitled to be heard and could not have been so heard when their entire brief was not considered by the Court of Appeal. It is well known that oral argument, which admittedly took place in this case, is only to expatiate the brief which contains a comprehensive statement of the case of the parties. It is not unusual in some cases to determine some appeals on briefs filed by the parties. The magnitude of the injustice done to the appellants can therefore be seen. The situation in this case is regrettable as the Court of Appeal gave a detailed consideration of the grounds of appeal and appeared to affirm the judgment of the court of first instance. I am, however, not able to say in this case that there has been no miscarriage of justice. The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground.

 

I had before now read in draft the reasons for judgment just delivered by my learned brother, Karibi-Whyte, J.S.C., and entirely agree with them and adopt them as my own opinion. It was for those reasons, and the reasons I have given above that I allowed the appeal.

 

 

Judgment delivered by

Uwais. J.S.C.

 

This appeal was allowed on the 6th day of February, 1990 and our reasons for doing so were reserved till today. I now give my reasons.

 

I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Karibi-Whyte, J.S.C. I agree with the reasons. As it was for the same reasons that I allowed the appeal, I adopt his reasons as mine. I have nothing to add.

 

 

Judgment delivered by

Belgore. J.S.C.

 

By reason of Order 6 rule 3, Court of Appeal Rules, the brief of argument must contain issues for determination. It would seem a previous brief, (already withdrawn and replaced by another one), containing no issues for determination was used by the Court of Appeal in arriving at its decision. Apparently Akpata, J.C.A. (as he then was) and Ogundere, J.C.A., concurred, relied on this withdrawn brief and though held that such a brief was void nonetheless accepted it as was and helped formulate the is sues for determination. With the greatest respect, this exercise was embarked upon on wrong premises.

 

In the first place there was a valid brief before the court, which was not used, and secondly it was a dangerous practice for the court to formulate issues for the parties. It is within the province of the parties to indicate the issue they wish the court to resolve and the court taking upon itself the formulation of issues for the parties may unwittingly be setting a destructive trap for itself to be accused not of jumping into the fray but forcing issues down the parties throats. As a valid brief existed but which was perhaps not in the papers learned Justices had with them when writing judgments and perhaps being on special panel from their various branches of that court to clear congestion; inadvertense set in and the pitfall became inevitable. But this is no excuse to preserve a judgment that has been vitiated by the error of relying on wrong brief. For the foregoing reasons and fuller reasons in the lead reasons for judgment, I allowed this appeal on 6th February, 1990 as did my other learned brothers on the panel.

 

 

Counsel

 

Chief F.R.A.Williams

With T.E. Williams

  ........

For the Appellants

Prince E.T. Nsofor

  ........

For the Respondents