Gabriel C. Ideh V. Mr. D.O. Onyejese & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A. 

In the court below the respondents as plaintiffs took out a Writ of Summons against the appellant in suit No.AG/7/91 claiming in their 42 paragraphs Amended Statement of claim as follows:-

“1. An order setting aside the spurious document titled:

“Deed of Assignment dated 12th day of December, 1989” purported to be executed between the plaintiffs and the defendant on grounds that:

(a) It contravenes and offends the provisions of the Money Lenders Law, Cap. 100, Volume IV, Law of Bendel State of Nigeria, 1976.

(b) The purported agreement and security therein specified and the entire transaction are usurious, harsh and unconscionable.

(c) The purported transaction is spurious and fraudulent having regard to the circumstances of this case.

2. A declaration that the said “Deed of Assignment” dated 12th December, 1989 is illegal, unenforceable null and void and of no effect whatsoever.
3. An order compelling the defendant to release forthwith the 1st plaintiff’s Peugeot 404 Pick-Up Vehicle with Index No. 6827 GB with Engine and Chassis Nos. 10001796 respectively and all documentary particulars related thereto.
4. An order compelling the defendant to release forthwith the 2nd plaintiff’s two cold-rooms and/or Refrigerators documents as securities for the said loan which the 2nd plaintiff has fully and finally paid to the defendant.
5. Payment of N300.00 (Three hundred Naira) per day from the date of the wrongful seizure and detention of the vehicle No. BD 6827 GB that is from 2/3/90 until the day of judgment in this suit or until the vehicle is released to the 1st plaintiff.
6. N10,000.00 (Ten thousand Naira) being general damages for wrongful seizure and detention of the plaintiffs’ said goods. DATED AT AGBOR, this 10th day of October, 1991.”

The defendant/appellant also filed an amended Statement of Defence containing 24 paragraphs wherein he denied all the 42 paragraphs of plaintiff/respondents’ Statement of Claim with the exception of paragraphs 1 & 2. His Amended Statement of Defence ended up in paragraph 23 with the following contentions:

“(a) Plaintiffs are not entitled as claimed on paragraphs 35 to 42(1) (2) (3) (4) (5) and (6) or at all:

(b) This suit be dismissed in that it is scandalous, frivolous and abuse of process.

(c) The defendant is not guilty of any offence cognisable in law to warrant the grant of the prayers sought and same is deserving of an outright dismissal.

DATED AT AGBOR THIS 5TH DAY OF NOVEMBER, 1991.”

Before the hearing began in the case the parties filed several applications to which the learned Trial Judge delivered various Rulings. When the case proceeded to trial parties also filed various applications including an originating summons and an application for the committal of the defendant/appellant. The commissioner of Police, Delta State, The Attorney-General Delta State and Peter Mordi (Alias Able Dealer) to prison for their contempt of court upon the grounds set forth in the schedule subjoined hereunder.

Schedule

“1. The defendant/respondent and other respondents herein named have failed, refused and/or neglected to obey the Order of Court “restraining any of the respondents from selling or interfering with the RES (Motor Vehicle) in this application till the 2 Motions on Notice are considered” as contained in the ENROLMENT OF ORDER dated the 31st day of August, 1992.

And for an Order that the costs of and occasioned by this motion be paid by the defendant/respondent and other respondents to the plaintiffs/applicants.

And for such further Order or Orders as this Honourable Court may deem fit to make in the circumstance.

DATED AT OGWASHI-UKU THIS 6TH DAY OF NOV., 1992.

(Sgd) DR. C.Y.O. ADEL

Counsel for plaintiffs/applicants

39, Agidiehe Street,

Ogwashi-Uku – Nigeria.

The applicants for Orders of Committal against appellant and the 3 other respondents also swore to an affidavit of 9 paragraphs in support of the Motion.

The affidavit reads thus:

Affidavit in support of Notice of Motion:

“I MRS BEATRICE ONYEJESE, business woman and house wife, residing at No. 5 Hausa Street, Boji Boji Owa, Nigerian, make oath and states as follows:-

1. I am the 2nd plaintiff/applicant in these proceedings and have the consent of the 1st plaintiff/applicant who is my husband, to swear this affidavit.
2. On 20/8/92, the 1st plaintiff/applicant and I filed a motion on notice for certain reliefs. This motion has not yet been heard by this Honourable Court.
3. On 31/8/92, the 1st plaintiff and I together with the defendant/respondent and other respondents appeared in Court whereupon this Honourable Court made an Interim Order, an Office copy of which, is here referred to as Exhibit 1.
4. The defendant/respondent and the other respondents have refused, failed and/or neglected to obey the said Interim Order of this Honourable Court by selling and/or interfering with the vehicle Pick-Up No. 404, Registration No. BD 6827 GB with Chassis No. 10001796.
5. The defendant/respondent – Gabriel Ideh has boasted to me that he would, as far as the said vehicle is concerned, do anything in defiance of the Interim Order of this court with impunity.
6. The said Gabriel Ideh – the defendant in this case, has been intimidating one of my witnesses in this case (Prince Felix Etumonor) of Royal Palace, Umunede. A copy of the said Etumonor’s letter to the Registrar High Court of Justice Agbor is here referred to as Exhibit 2.
7. In expatiation of paragraph 4 supra, the said “RES” (motor vehicle)” – Pick-Up 404, Registration No. BD 6827 GB is no where to be found at present and I believe out of my own knowledge of the defendant/respondent that he – the defendant/respondent – Gabriel Ideh, has removed the said Car from the Police station Agbor to elsewhere.
8. The said vehicle was with the Police at Agbor Police station as at 31/8/92 and had been with the Police since 4/10/91. A certified True Copy of Ruling of this Court dated 4/10/91 is here referred to as Exhibit 3.
9. I swear this affidavit in support of this application and, paragraphs 1 to 8 above are true to the best of my knowledge, information and belief.

(Sgd) MRS. BEATRICE ONYEJESE

DEPONENT.

Sworn to at the High Court Registry, Asaba this 6th day of Nov; 1992.”

Applicants also swore to a further affidavit. The defendant/appellant swore to a Counter-affidavit of 7 paragraphs refuting the Motion thus:

COUNTER AFFIDAVIT TO REFUTE MOTION

“I, Gabriel C. Ideh, Male, Nigerian citizen residing at No. 60 Alika Street, Boji Owa, Delta State, do make oath and state as follows:-

1. That I have not failed, refused or neglected to obey the interim order of this court dated on 31/8/92 as to justify my being called upon to be committed to prison for contempt of this Honourable Court.
2. That paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of applicants affidavit are all untrue and denied.
3. In further answer to paragraph 1 above I state emphatically as follows:-

(i) That the applicants own Exhibits attached to her further and further affidavit at paragraph 15(i) and (ii) Sworn to in this Court on 4/9/92 and herein attached as Exhibits “A” and “B” show that the vehicle BD 6827 GB has passed on from Chief P.I. Mordi to one Valentine Offor as far back as 14/8/92.

(ii) The applicant’s motion which led to the alleged interim order of 31/8/92 was filed on 20/8/92. (iii) Paragraph 14 of same affidavit states, ‘That our said vehicle was surreptitiously removed from the Police Station to the Sales premises of Mr. Peter Mordi (Alias Able Dealer) on 30th July 1992 and when I discovered this I quickly reported the matter to the Agbor Police.”

(iv) Paragraph 11 of applicant’s Affidavit filed on 20/8/92 states, “That on 31st July 1992, I was informed by my relation, Mr. Ikechukwu Malia whom I verily believe that while he was travelling away from Town he saw out said vehicle being towed to the Town”.

(v) While paragraph 12(a) of the same affidavit reads “That the said Ikechukwu Malia further informed me and I believe him that when he later returned from his travel on 31/7/92 he saw the vehicle at the sales premises of one Peter Mordi (Alias Able Dealer) being displayed for sale.

4. That in a petition dated March 25th 1991, the 1st plaintiff, Mr. D.O. Onyejese reported to Police that I have sold the vehicle Exhibit “C”.

I sold the vehicle to Chief P.I. Mordi on 16/1/91 Exhibit “D” not after 31/8/92.”

5. That applicants Exhibit 2 is blatant falsehood and a forgery as there is no body or any existing human being by name “Prince Felix Etumonor” or Royal Palace Umunede.
6. That this application is illogical, based on falsehood and confused reasoning as evidenced by applicants Exhibits A, B, C, herein, which are all applicants own documents.
7. That I make this affidavit sincerely believing the contents to be true.

(Sgd) ???

DEPONENT

Sworn to at the High Court Registry this 24th of day of Nov., 1992.”

On 13/1/93 the court began to hear argument in support of application filed for committal of the appellant for failure to obey the Court Order made on 31/8/92. Counsel for the applicant first addressed the court on the same date. Counsel for the respondent/appellant Mr. Dumkwu also began his address on 13/1/93 when the court adjourned Further hearing of the Reply to 29/1/93. On 29/1193 Mr. Dunkwu asked for an adjournment to enable him file a further Counter/affidavit to refer to the Counter/affidavit already filed on 22/4/92. Counsel for the applicant, Dr, Adei objected to the application for an adjournment, the learned Trial Judge delivered the following Ruling on 29/1/93.

RULING

“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.

(Sgd) A.N. Maidoh,

JUDGE.

29/1/93.”

It is against this Ruling that the appellant has appealed to this court.

The appellant has filed 4 grounds of appeal, and formulated 3 issues for determination.

The following are the 4 grounds (without their particulars).

“1. The learned Trial Judge erred in law when he refused the defendant/respondent/applicant’s application to file a Further Counter-Affidavit.

2. The learned Trial Judge misdirected himself when he failed to take judicial notice of the records in Court’s file.
3. The learned Trial Judge was erroneous in law and amounted to an injudicious exercise of discretion vested in the learned Trial Judge when he refused the applicant to refer to paragraphs 16, 17, 18, 19 and 20 of the Amended Statement of Defence filed on 6th day of November, 1992 respectively or to file a Further Counter Affidavit to refer to the said paragraphs only.
4. The Learned Trial Judge was in grave error of law when he failed to consider ever or at all the submission that the failure to include in the Counter Affidavit the paragraphs now sought to be averred in the Further Counter Affidavit the error if ever there was one is due to Counsel’s negligence or inadvertence.”

At page 32 of the Brief of argument filed by appellant’s counsel, he submitted these 3 issues for determination:

“1. Whether the learned Trial Judge was right in overruling the application of the appellant to refer and use paragraphs 16, 17, 18, 19, and 20 in the amended statement of defence filed on 6th November, 1991 and paragraphs 11, 18, 19, 21, 22 and 23 of the Counter Affidavit filed on 31st day of August, 1992 which are in the case file, before the said Judge the said documents which we also served on the respondents.

2. Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter affidavit and further counter affidavit.
3. Whether the learned trial Judge was right in refusing to grant the appellant adjournment since counsel’s inadvertence or negligence can not be visited on the client. Moreso, when the committal proceedings is quasi-criminal and the liberty of the appellant was at stake.”

For their own part the respondents formulated 4 issues for determination as follows:-

”A. Was the appellant right in disposing the Peugeot 404 Pick-Up, the res during the pendency of the case despite Court’s Order thereby knocking off the substratum of the case and thereby making whatever the judgment of the Trial Court, would be a nugatory?

B. Were the respondents not right in bringing the Committal Proceedings in consonance with the High Court (Civil Procedure) Rules 1988 as applicable to Delta State when the appellant disposed the res contrary to Court Order and when the case was pending?

C. Was the learned Trial Judge not right in not allowing the appellant to use the Additional Counter-Affidavit filed on 31/8/92 when the respondents have moved their application and the appellant had already replied midway, since this would foreclose the respondents’ as they cannot now join issues with the appellant on the affidavit evidence on record?

D. Is the wisdom of appealing at the close of the substantive matter not desirable instead of intermittent interlocutory appeals which could be taken together at the close of the case with the main issues?””

I have examined carefully the grounds of appeal filed by the appellant in this case and I do not see how grounds 2, 3, & 4 relate to the Ruling delivered by the learned Trial Judge on 29/1/93. Anyone reading the grounds of appeal filed by the appellant would think, the appeal was against a different Ruling from the one delivered by MAIDOH J., on 29/1/93.

I shall quote hereunder the whole record of proceedings that took place on 29/1/93 in respect of suit No. AG/7/91 as at page 236 – 237 of the records.

“BEFORE HIS LORDSHIP, HON. JUSTICE A.N. MAIDOH JUDGE:

ON FRIDAY, THE 29TH DAY OF JANURAY, 1993:

AG/7/9I: D.O. Onyejese & Anor v. G.C. Ideh.

Parties in court, except 1st plaintiff.

Dr. C v. O. Ade; for plaintiff/applicant.

P.C.E. Dunkwu for defendant/respondent.

Dunkwu continues with his reply.

Relies on Statement of Defence filed on 22/4/91. As for counter-affidavit of 31/8/92. At this stage Mr. Dunkwu asks for adjournment to enable him to file Further Counter-Affidavit to refer to the Counter-Affidavit already filed and the Statement of Defence filed on 22/4/91. The matter before the court is quasi-criminal. The facts to be mentioned are not new.

Adei objects:

(1) the applicant had concluded argument on the motion filed for committal on 13/1/93.

The respondent’s counsel had started replying based on the counter-affidavit to refute the motion. All the facts which he now wants to expose were available to him at all times. Asks that Dunkwu should conclude his reply. Dunkwu applies for an adjournment to enable him file a further Counter-Affidavit to enable him to refer a certain paragraphs filed in the Counter-Affidavit filed on 31/8/92. AND certain paragraphs in the Amended Statement of Defence filed on 22/4/91 and nothing more.

Adei objects for an adjournment to enable Dunkwu improve on his case.

Applicants have argued their motion on 13/1/93 and relied on the facts deposed to in the affidavit in support of the application. The respondent deposed to Counter-Affidavit opposing the application.

RULING:

I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.

(Sgd) A.N. Maidoh,

Judge

29/1/93.”

There is nowhere in the Records that the learned Trial Judge was called upon to take judicial notice of certain Records in Court’s file hence the issue of refusal or denial of fair hearing does not arise.

Ground 2 therefore fails as it does not relate to the Ruling appealed against. In ground 3 the appellant complained about learned Trial Judge’s refusal to allow the applicant refer to paragraphs 16, 17, 18, 19, & 20 of the Amended Statement of defence filed on 6/11/91 and the Counter/affidavit paragraphs 11,18, 19, 21, 22, & 23 filed on 31st Day of August, 1992, respectively or to file a further Counter/affidavit to refer to the said paragraphs only – I am afraid this ground is also a non sequitur. It does not relate or arise from the Ruling of the learned Trial Judge. In his application for an adjournment, Counsel referred to a Statement of Defence filed on 22/4/91 whereas in Ground 3 he was talking about an Amended Statement of Defence filed on 6/11/91.

Ground 3 fails and is hereby struck out. In Ground 4 the appellant is complaining of the grave error committed by the learned Trial Judge when he failed to consider the submission that the failure to include in the counter affidavit the paragraphs now sought to be averred in the further counter affidavit is due to counsel’s negligence or inadvertence.

I have had several careful looks at the entire proceedings of 29/1/93 before MAIDOH J. I fail to see any portion wherein counsel for the appellant pleaded his own negligence or inadvertence in the omission allegedly referred to in his counter-affidavit. In his application for an adjournment, counsel for the appellant never owned up that he was negligent or that the omission sought to be rectified by an adjournment was due to his fault which should not be visited upon his client.

This ground of appeal is an afterthought and has no bearing whatsoever with the ruling of the learned Trial Judge. Ground 4 also fails.

In framing a ground of appeal, Counsel for the appellant must conform with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules. The Rules provide thus:-

“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”

In this case appellant’s counsel has filed 4 grounds of appeal out of which only one discloses a reasonable ground of appeal relating to the Ruling delivered by the learned Trial Judge. Grounds 2, 3, & 4 are bad, incompetent and irrelevant and do not comply with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules hence they are hereby struck out. See the case of Innih v. Ferado Agro & Const, Ltd. (1990) 5 NWLR (Pt. 152) 604.

‘I am now left with only Ground 1. Since an appeal is argued on issues and not on grounds, I have got to examine which of the issues submitted by the appellant is covered by Ground 1.

It is trite law that issues for determination in an appeal must relate to grounds of appeal. Appellant who has filed only one competent ground of appeal cannot formulate 2 or 4 issues from that one ground – See the cases of:

Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 at 148.

Nwosli v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 217.

It is wrong for a party to formulate more issues than the grounds of appeal.

In this case the only issue which can arise from Ground 1 is Issue 2 and it reads thus:

Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter-affidavit and further counter-affidavit.”

In support of this issue the appellant has argued that the reason given by the learned trial Judge when he refused to grant an adjournment was untenable and erroneous. He conceded the fact that the Judge had a discretion whether or not to grant or refuse an application for an adjournment. Counsel however submitted that in the circumstances of the instant case, the learned trial Judge was injudicious in the exercise of his discretion when he refused to grant the appellant an adjournment. He cited several cases to support his case. Among them are the following:

Udo v. The State (1988) 3 NWLR (Pt. 82) 316 at 326.

University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143.

Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909.

With regard to this issue I could hardly find anything said by the respondent in his brief of argument. The respondent’s brief of argument addressed different issues from those posed by the appellant. The respondent formulated 4 different issues on matters not contained in the appellant’s brief or grounds of appeal, The counsel for the respondent went off target as far as this appeal against refusal to grant an adjournment was concerned, and began to make out the applicant’s case in the committal proceedings. The respondent formulated issues which are not distilled or related to the grounds of appeal filed by the appellant. The material issue in this appeal and the matter under controversy is that the learned Trial Judge refused the appellant’s application for an adjournment midway in his address to enable him file a further additional counter-affidavit. The learned Trial Judge refused to grant an adjournment and the appellant has appealed against the Ruling of Refusal.

The only relevant material answer given by the respondent to this material point in his brief of argument was his submission under his Issue C. He submitted that the learned Trial Judge was very right in not allowing the appellant to argue a further counter/affidavit wherein new/fresh facts were raised in the course of his counsel’s reply and the parties at this stage were bound by affidavit evidence. Counsel sees the application as a ploy to frustrate the case. This is the only useful portion in the entire brief of the respondent. I shall make further comments later on about the briefs filed by both parties to this appeal. Now to the only relevant issue in this appeal. When a party in a case applies for an adjournment during the trial, he does not get it automatically or on a platter of gold. He must satisfy the court that he has a good reason to seek for an adjournment. The trial Judge also has a judicial discretion either to grant or refuse an application for an adjournment. The trial Judge has a duty to consider the application on its merits and state his reasons for his decision to grant or refuse the application.

In this case the learned trial Judge was hearing arguments on a Motion for committal to prison for contempt against the appellant and 2 others. The counsel for the applicants filed affidavit and further affidavits in support of the motion and attached some exhibits to these affidavits. Counsel for respondent (appellant in this case) filed counter/affidavit and further counter/affidavit. The applicants’ counsel had completed his address and respondent’s counsel had also commenced his own address. In the middle of his address, counsel prayed for an adjournment to file a further counter/affidavit to incorporate some paragraphs in his amended statement of defence already filed in the original suit which have given rise to the contempt proceedings. Counsel for the applicants opposed the application for an adjournment and the application was refused by the learned Trial Judge. Let us look at the reasons given for the refusal. The Ruling is very short hence I shall quote it hereunder.

RULING

“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter/affidavit. Consequently, I find it difficult to allow the application now made.”

Upon a careful scrutiny of the reasons given by the learned trial Judge for his refusal, it seems to me that the learned Trial Judge was only concerned with the case of the applicants. He is particular about the respondent not producing more averments to prejudice the case of the applicants. He has shut his eyes to the rules of natural justice that all parties must be given a hearing in a trial. If the respondent wishes to tender more affidavit evidence to defend his case in committal proceedings, should a trial court not allow him to do so in the interest of justice and fair hearing? The learned Trial Judge went further in his Ruling to commit more blunders by saying that the respondent is only allowed to rely on the affidavit evidence he had already tendered either directly or referred to in the said counter-affidavit.

In other words, he is limiting the scope of the defence of a person under trial in a committal proceeding which is quasi criminal in nature. Why the hurry? And why the use of the long stick to limit the defence of the appellant? In my view the learned trial Judge has not considered the application for an adjournment judiciously and judicially in this case and his ruling of a refusal must be set aside. He was most unfair and arbitrary to the respondent in the committal proceedings and the appellant in this case. See the case of: Udo v. The State (1988) 3 NWLR (Pt.82) 316 at 326. In an application for an adjournment, a trial Judge must be mindful of the nature of the proceedings before him when considering whether or not he will grant an adjournment. In the instant case the learned Trial Judge was hearing a case of Committal for contempt, of his Order, hence he ought to be very careful in making sure that he gives both sides equal opportunities to state their case fully, especially the party who seems to be on trial for his alleged disobedience. He did not do so in this case. The question of an adjournment is a matter in the discretion of the learned trial Judge and it must depend on the facts and circumstances of each case. Each case has its own peculiar circumstances. In the case of Jenkins v. Bushby (1891) 1 CH 484 at 495 Kay L.J. opined thus:-

“In matters of discretion no one case can be authority for another, and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because it would be in effect putting an end to the discretion,”

This court will hesitate to interfere with the exercise of a trial Judge’s discretion unless it is satisfied that the exercise would be an injustice to one or other of the parties. See the case of:

Maxwell v. Keun (1928) 1 KB 645 at 633.

It is my view that this is a case that warrants a review of the learned trial Judge’s Ruling, and I am in duty doing so here. In sum this appeal succeeds and is hereby allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case.

I cannot end this appeal without some comments on the briefs filed by both parties to this appeal. The appellant filed a 40 paged document which he labelled appellant’s brief of argument. Pages I to 32 consist of introduction, facts and a reproduction of previous motions, affidavits and counter/affidavits which have no bearing whatsoever on this appeal, The 4 issues were formulated on page 32. Counsel lumped up his arguments on the issues together on pages 33 – 39. The brief is unnecessarily verbose, substantially irrelevant and very defective in most parts. In fact it is a bundle of pettifogging – to use the language of UWAIS, J.S.C. in the case of Adehi v.Atega (1995) 5 NWLR (Pt. 398) 656. I would have discountenanced the entire brief as bad but for the interest of justice. Counsel paid no attention to the provisions of Order 6, rules 1, 2, 3 of the Amended Court of Appeal Rules.

The Brief of argument filed by the respondent although shorter in volume, is in no way better than that of the appellant. He failed to observe all the Rules of court pertaining to issue of brief writing. He filed his issues independently of the grounds of appeal filed by the appellant. The issues for determination is a very serious part of a brief and ought to be carefully formulated. Issue should be framed in such a way that it should arise from and relate to the grounds of appeal filed. The grounds of appeal filed represent and reflect the questions in controversy in the appeal. See the case of:

Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304. The respondent has woefully failed to comply with the rules pertaining to filing briefs of argument.

Order 6 r. 4(1) & (2) of Court of Appeal Rules give a guideline as to what a respondent is required to file and when he is required to file same. Rule 4 provides thus:-

“(1) The respondent shall also within forty-five days of service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.

(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief, and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform with rule 3(1), (2) (3) (4) and (5) of the Order.”

The respondent formulated his own issues as if he was a cross-appellant. It is my view that counsel in cases before the Court of Appeal and the Supreme Court should not feel too big to read and study briefs of well experienced and successful lawyers before writing their own briefs. This will help them to improve their own standards. I recommend same and the book written by Nnaemeka Agu, J.S.C. on Manual of Brief Writing for the reading of the two counsel in this appeal. They will be richly blessed.

As I said earlier on, this appeal succeeds and is allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case in suit. No. AG/7/91 – re-committal Proceedings. No Order as to costs.

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Other Citations: (1997)LCN/0329(CA)