Klm Royal Dutch Airlines V. Jamilat Aloma (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on 15/11/2007 dismissing the appellant’s appeal for want of prosecution and affirming the judgment of the Federal High Court sitting at Lagos delivered on 25/9/2003 in favour of the respondent.

The dispute between the appellant and the respondent arose from an alleged breach of a contract for international carriage by air. The respondent purchased two tickets from the appellant on 21/9//999 for a combined journey which was routed as follows: LAGOS – AMSTERDAM – LONDON – MILAN AMSTERDAM – LAGOS. The first leg of the journey from Lagos through to Milan went without a hitch. However, on her return journey she alleged that she was prevented from boarding the Milan – Amsterdam flight and instead, after several hours of delay, was put on an Alitalia flight from Milan direct to Lagos. As a result she missed some important business meetings and shopping, which she had scheduled to do in Amsterdam. She arrived in Lagos two hours before the Amsterdam flight but

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her luggage was not on the flight. She completed necessary forms to make a claim for her lost luggage and eventually one of her bags was returned to her. The second piece of luggage was not found. Consequently by a writ of summons filed on 23/12/1999 before the Federal High Court in Lagos (the trial Court), she sought the following reliefs against the appellant as defendant:

“1. The sum of $7,765.00 (Seven Thousand, Seven Hundred and Sixty Five US Dollars), 8,550.00 (Eight Thousand, Five Hundred and Fifty pounds) and Lira 4,405,000.00 (Four Million Four Hundred and Five Thousand Lira) being the value of the goods and properties contained in the Plaintiffs baggage, which was lost by the defendant and whose total equivalent in Naira is N3,907,200.00 (Three Million, Nine Hundred and Seven Thousand, Two Hundred Naira).

2. The sum of $1, 838.25 or N187, 501.00 being the cost of return air ticket from Lagos to Amsterdam to Lagos which the plaintiff lost as a result of the defendants unilateral decision to prevent the plaintiff from stopping over at Amsterdam.
3. The sum of N5,000,000.00 (Five Million Naira) as damages for loss of expected profit

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and business goodwill in Amsterdam occasioned by the unilateral act of the defendant.

4. The sum of N5,000,000.00 (Five Million Naira) as damages for the defendants violation of the plaintiffs fundamental rights, false imprisonment and violation of human dignity.

Interest on the above sums at the rate of 21% per annum from 15th October 1999 up till judgment and thereafter at the rate of 10% per annum until final liquidation.

Costs of the action.”

The writ was accompanied by a 33-paragraph statement of claim. The defendant (appellant herein) upon receipt of the processes filed a statement of defence but did not adduce any evidence at the trial. The respondent on her part testified and tendered documents, which were admitted in evidence in support of her claim. After numerous adjournments to enable the appellant open its defence, it failed to do so. Its case was closed and on 25/9/2003 judgment was entered in favour of the respondent Reliefs 1 and 2 were granted as prayed. In respect of reliefs 3 and 4 she was granted N1,000,000.00 each. The claim for interest was granted as prayed with costs of N10,000.00 awarded in her favour. The appellant

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was aggrieved with the decision and appealed against it to the Lower Court, which on 15/11/2007 dismissed the appeal. The ground upon which the appeal was dismissed was that the appellant failed to proffer argument in respect of the two issues it formulated but rather abandoned them and argued 8 sub-issues. It held at pages 298 to 299 of the record:

“In the instant appeal, the appellants brief is not written in accordance with Order 6 Rule 3 of the Court of Appeal Rules 2004 (or Order 17 Rule 3 (1) of the Court of Appeal Rules 2007). The defect inherent in the appellant’s brief is beyond a mere technicality. It goes to the root of fair hearing of the appeal, as whichever way the brief is considered, undue interference in the arrangement of the issues must be occasioned in favour of the appellant.

Having failed to proffer argument in respect of the two issues formulated by the appellant, same are hereby deemed abandoned. Where a brief is filed and it is not in conformity with the rules the Courts are enjoined to disregard such brief and give judgment as if done that been filed. See Bioku Investment & Property Co. Ltd. & Anor. Vs Light

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Machine Industry Nigeria Ltd, & Anor, (1984) 5 NWLR 42, A brief which is only defective in format can be tolerated but a brief the contents of which also not contain are essential requirements as laid down by the rules cannot be countenanced as this will not meet the ends of justice. See Paul Nwagha & Ors. v. Omoniyi Olupo & Ors. (1991) 7 NWLR 517.

In the result the appellant’s brief is accordingly struck out on account that the issues framed were abandoned thus rendering the brief incompetent. The brief having been struck out for incompetence, there is nothing left on which to hear or consider and determine the appeal. Therefore the appeal is dismissed for want of prosecution. The appeal having been dismissed, the decision of the trial Judge is affirmed.”

It is the appellant’s dissatisfaction with this decision that has given rise to the instant appeal. At the hearing of the appeal on 4th April, 2017, C.A. CANDIDE-JOHNSON, SAN leading two juniors adopted and relied on the appellant’s brief filed on 11/2/2008 and its reply brief deemed filed on 27/4/2009 in urging the Court to allow the appeal. J. O. ODUBELA ESQ. for the respondent, also

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leading several juniors, adopted and relied on the respondent’s brief filed on 12/6/2008 including the preliminary objection raised and argued at paragraphs 3.00 – 3.24 thereof in urging the Court to strike out Ground 2 of the Notice of Appeal and dismiss the appeal.

As the respondent has raised a preliminary objection in her brief, it is prudent to consider and resolve it before delving into the merits of the appeal. It should be noted that the preliminary objection relates only to Ground 2 of the Notice of Appeal. As there is no complaint against Grounds 1 and 3, it follows that the respondent is not challenging the competence of the appeal in its entirety. The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The

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reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.

Notwithstanding the fact that the complaint is wrongly couched as a preliminary objection, I shall consider it in the interest of justice, as the appellant has responded to it in its reply brief. It is the respondent’s contention that Ground 2 of the notice of appeal does not arise from the judgment appealed against. Relying on several authorities including Akibu Vs Oduntan (2006) 13 NWLR (Pt.685) 446 @ 462 – 463 F – A; Co-operative & Commerce Bank Vs Ekperi (2007) 1 SC (Pt.II) 131 lines 35 – 40 and Abubakar Vs Bebeji Oil & Allied Products Ltd. & Ors. (2007) 2 SC 84 – 85 lines 40 – 45, learned counsel submits that where a ground of appeal does not arise from the judgment appealed against, it is incompetent and liable to be struck out. He argued that the said ground 2 is also incompetent for alleging both misdirection

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and error in law at the same time. He referred to Order 6 Rule 2 of the Court of Appeal Rules 2007 and Igbinovia Vs UBTH (2000) 8 NWLR (Pt.667) 53 @ 65 D E and urged the Court to strike out the said ground.

In reaction to the preliminary objection, learned senior counsel for the appellant argued that ground 2 complains of the failure of the Lower Court to act on the arguments proffered before it on the merits of the appeal. He submitted that a complaint against what the Court failed to do is as valid as a complaint against what it actually did. He argued that the issue before this Court is whether failure of the Lower Court to give an opinion on the submissions before it precludes this Court from looking into the validity of the argument. In other words, in the event that the complaint in ground 2 is well founded, this Court would be in a position to exercise its powers under Section 20 (now Section 22) of the Supreme Court Act if there is sufficient material before it to do so instead of sending the case back to the Lower Court. He referred to Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 427.

On the second complaint against ground 2,

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learned senior counsel submitted that the fact that a ground of appeal is framed as an error in law and a misdirection does not make it incompetent. He submitted that what is important is whether or not the impugned ground shows clearly what is complained of and that the test is whether the other side is misled as to the substance of the complaint. He referred to: Aderounmu Vs Olowu (2000) 4 NWLR (Pt.652) 253 @ 255 – 266 H – E. He asserted that Ground 2 of the notice of appeal discloses the precise nature of the complaint in this appeal. He urged the Court to be guided by its decisions in Okotie-Eboh Vs Manager (2004) 18 NWLR (Pt.905) 242 @ 277 G – A; Aigbohai Vs Aifuwa (2006) 6 NWLR (Pt.976) 270 @ 294 D – F to the effect that the Courts lean against technicalities in favour of substantial justice in order not to shut a party out without a hearing.

Ground 2 of the Notice of Appeal is as follows:

“Ground Two

The learned Justices misdirected themselves and also erred in law when they failed to set aside a perverse and unlawful judgment of the Federal High Court.

Particulars

i. The learned trial Judge failed to analyse or evaluate the

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evidence before him at all or in light of the applicable law of Internataonal air carriage. There was no evidence that the respondent suffered the damages that were awarded.

ii) Elements of the award were on matters outside the jurisdiction of the Federal High Court and this matter was taken up by the learned Justices suo motu without any response by the respondent in argument.

iii) The award was expressly contrary to the relevant contract for international carriage by air which is subject to treaty and statutory limitation or liability.

Iv) The awards of moneys were based on wrong principles of law and were excessive, hypothetical, speculative and perverse.”

Even a cursory look at Ground 2 and its particulars would reveal that the appellant is challenging the decision of the trial High Court and not the decision of the Court below. The Court below, having held that the appellants brief was incompetent did not consider the merit of the appeal at all. As rightly submitted by learned counsel for the respondent, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the

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ratio of the decision. See: Egbe Vs Alhaji & Ors. (1990) 3 SC (Pt.III) 63 @ 109; Datek Nig. Ltd. Vs. OMPADEC (2007) ALL FWLR (Pt.364) 204 @ 226 F – H; Akibu Vs Oduntan (supra); Abubakar Vs Bebeji Oil & Allied Products Ltd. & Ors. (supra). Furthermore, by virtue of Section 233 (1) of the 1999 Constitution, the appellate jurisdiction of this Court is limited to appeals from the Court of Appeal. The Court has no jurisdiction to entertain appeals directly from the trial Court. See: Akibu Vs Oduntan (supra); Okonobor Vs Edegbe & Sons Transport Co. Ltd. & Anor. (2010) 17 NWLR (Pt.1221) 181: Husseini & Anor. Vs Mohammed & Ors. (2014) 12 SC (Pt.II) 90. In effect, the objection to Ground 2 is well founded. The said ground is incompetent. It is hereby struck out.

With regard to the appeal before us, the appellant has formulated two issues for determination as follows:

1. Whether the Court of Appeal was correct to dismiss the appeal on the ground that arguments had been marshalled in a manner that it found inelegant.
2. Whether a miscarriage of Justice has occurred which the Supreme Court ought to remedy by determining the merits

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of the appeal

For the respondent, a sole issue is formulated thus:

Whether the Court of Appeal was right when they dismissed the appeal of the appellant on the failure of the appellant to proffer arguments in support of the issues formulated and/or grounds of appeal.

An appeal is determined on the issues for determination formulated by counsel, or by the Court. Such issues must arise from the grounds of appeal. Any issue that does not arise from the grounds of appeal is incompetent and liable to be struck out. It is also settled that any ground of appeal not covered by an issue for determination is deemed abandoned and liable to be struck out. See: Okoye & Ors. Vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) 6 NWLR (Pt.199) 501; Egbe v. Alhaji (supra); Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (Pt.249) 534: Elohor Vs Osayande (1992) 6 NWLR (Pt.249) 524 @ 534. Learned senior counsel for the appellant herein neglected to tie the issues for determination to the grounds of appeal. However, upon an examination of the two grounds of appeal it is evident that issue 1 is derived from Ground 1 while Issue 2

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is derived from Ground 2. Having struck out Ground 2 of the notice of appeal, Issue 2 which is predicated thereon is incompetent. It is accordingly struck out. The respondent’s sole issue is similar to the appellant’s Issue 1 in all material particulars. I shall adopt the appellant’s issue for the determination of the appeal i.e.

Whether the Court of Appeal was correct to dismiss the appeal on the ground that arguments had been marshalled in a manner that it found inelegant.

Learned senior counsel submitted that the authorities are settled that bad or inelegant drafting of a brief of argument is not a sufficient reason for the Court not to consider it. He argued that the Court has a duty to consider the substance of the arguments and not the form in which they are presented. He referred to: Obiora vs. Osele (1986) 1 NWLR (Pt.97) 279 @ 295 296. He submitted that at the Court below, the respondent only objected to arguments in respect of the second issue for determination. He contended that issue 1 not objected to was sufficient to determine the appeal in the appellants favour. He submitted, relying on UBA Plc v. Ogunsanya (2003) 8 NWLR

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(Pt.821) 111 @ 124 and Adehi vs. Atega (1995) 5 NWLR (Pt.398) 656 @ 666, that it is only where arguments are on the grounds of appeal rather than the issues formulated or where the submissions do not relate to any grounds of appeal, that the Court would treat the case as if no brief were filed, He referred to: Kolawole Vs Alberto (1989) 1 NWLR [Pt.98) 382 @ 399. He referred to the ratio decidendi of the judgment of the Court below (reproduced earlier in this judgment) and argued that the Court by its decision is penalising the form of the brief and not the substance. He submitted that the appellant was denied a hearing on technical grounds and urged the Court to resolve this issue in its favour.

In reaction to the above submissions, learned counsel for the respondent submitted that the appellant filed 5 grounds of appeal and formulated 2 issues therefrom. He contended that rather than proffer argument in support of the two issues formulated, arguments were canvassed under 8 sub-heads. He contended that neither the issues nor the grounds of appeal were argued. He submitted that where a party fails to make any submission on any issue formulated, the issues and

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grounds of appeal shall be deemed abandoned. He relied on the following authorities: Omo Vs JSC Delta State (2000) 12 NWLR (Pt.682) 444 @ 454 H B; Ejura vs. Idris (2006) 4 NWLR (Pt.971) 538 @ 559 C: Sekoni vs. UTC Nig. Plc. (2006) 8 NWLR (Pt.982) 283 @ 300 B D; Aseimo v. Abraham (2001) 6 SC 154 @ 158 lines 15 30. He observed that the learned senior counsel for the appellant acknowledged in his brief of argument that the arguments in the appellant’s brief were organised under convenient sub-headings. He considers this an admission that arguments in the brief were neither in support of the issues for determination nor the grounds of appeal.

Learned counsel submitted that the defect in the appellant’s brief is beyond a mere technicality, that it goes to the root of the fair hearing of the appeal. He contended that the Court was right in dismissing the appeal, because if it had engaged in re-arranging the issues and arguments in the brief it would have amounted to descending into the arena of conflict and arguing the appeal on the appellant’s behalf. He submitted that where a brief is merely defective in form it can be rectified but

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where it is defective in terms of its content for non-compliance with the requirements set out in Order 17 Rule 3 (1) of the Court of Appeal Rules, 2007, such non-compliance cannot be countenanced. He submitted that the authorities of Obiorah V Osele (supra); UBA Plc. Vs Ogunsanya (supra); Adehi Vs Atega (supra) and Kolawole Vs Alberto (supra) relied upon by learned senior counsel for the appellant all support the respondents case. In the final analysis, he urged the Court to hold that the Lower Court was right in dismissing the appellant’s appeal and to resolve this issue against it.

Order 17 Rule 3 (1) of the Court of Appeal Rules 2007 provides:

“3 (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”

I have earlier stated the position of decided authorities on the need for issues for determination to arise from the grounds of appeal and for the grounds of appeal to be predicated on complaints against the ratio decidendi of the decision complained of. The 5

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grounds contained in the Notice of Appeal filed before the Court below can be found at pages 142 – 146 of the record. They are reproduced hereunder without their particulars except for Ground 1 where the particulars are reproduced in full:-

“Ground One

The learned trial Judge seriously misdirected himself when he held that:

“Where the defendant files a Statement of Defence and does not appear at the trial to give evidence in support of the averments in the Statement of Defence such averment goes to no issue and the material evidence given by the plaintiff remains unchallenged and unrebutted by the defendant who had the opportunity to do so. It is always open to the Court to act on such unchallenged evidence.”

And when by this reason alone he entered judgment against the appellant in the sum of N3,907,200.00 being the alleged Naira value of goods allegedly contained in the plaintiff’s lost luggage.

Particulars

1. The learned Judge recognized that the cause of action arose from a contract for international carriage by air, and that the contract was contained in the air tickets admitted as Exhibits A & A1 but failed to recognize

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and apply legal and statutory defences to the claim detailed therein.

2. The contract was subject to the statutory limitation of liability for loss of luggage under the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw in 1929 (The Warsaw Convention) expressly pleaded in paragraph 5 (b) & (c) of the statement of defence.
3. The learned Judge failed to analyse or evaluate the evidence before him at all or in light of the applicable law of international air carriage.
4. There was no evidence before the Court that the value of the allegedly lost luggage was declared to the appellant before embarkation or that the respondent paid any additional charges for purposes of insuring the lost luggage.
5. There were no receipts before the Court evidencing the total cost or value of the goods and respondents own witness testified and admitted that “Exhibit L” did not represent the total cost of the lost goods.
6. In any event and by virtue of Article 22(2) of the said Warsaw Convention, the appellant’s liability is limited to 250 francs per kilogram of the lost luggage.

Ground Two

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The learned trial Judge erred in law in awarding to the Respondent the sum of $1,838,25 or N187, 501.00 as the cost of return ticket from Amsterdam to Lagos.

Ground Three

The learned trial Judge misdirected himself and/or erred in law when he awarded the sum of N1,000,000.00 as damages for “loss of expected profit” and “business goodwill in Amsterdam.”

Ground Four

The learned trial judge misdirected himself and/or erred in law in awarding the sum of N1,000,000.00 as damages for violation of Defendants/Respondents fundamental rights, false imprisonment and violation of human dignity.

Ground Five

The learned trial Judge misdirected himself in law by awarding interest on the damages at the rate of 21% per annum until judgment.”

The appellant’s brief is at pages 154 – 172 of the record. From these five grounds the appellant identified the following two issues for determination:

1. Whether the learned Judge was correct to enter judgment only upon failure of the Appellant to call opposing evidence and without evaluating or analysing the evidence or considering applicable law
2. Whether the respondent

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established her case (granted in toto by the Learned Trial Judge) on liability or on quantum of damages awarded

(See page 159 of the record)

(Emphasis supplied)

Arguments in support of the issues span from paragraph 6.1 on page 8 of the appellant’s brief to paragraph 6.29 on page 19 thereof (pages 160 – 171 of the record). The submissions commence under the general heading “Arguments”. Thereunder there are various sub-headings as follows:

a. Failure to analyse and evaluate evidence and case.

b. Applicability of Warsaw Convention.

c. Evidence of Value of Luggage.

d. Award of Return Air Ticket.

e. Claim for loss of profit.

f. Ludicrous claim for violation of human rights.

g. Award of interest.

h. Reliefs.

It is noteworthy that the respondent formulated a single issue for determination thus:

“Whether the Court of Appeal should interfere with the judgment of the trial Court entered in favour of the plaintiff with due regards to the evidence before the Court.” (Paragraph 3.00 of the respondent’s brief at page 223 of the record).

The Lower Court observed that neither the appellant nor the

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respondent tied their issues to the grounds of appeal. It also noted that the respondent fully argued the sole issue as formulated by it. The Court was however of the view that it was not possible to determine which of the eight sub-issues formulated by the appellant was being addressed by the sole issue canvassed by the respondent. With due respect, I am of the view that there was a misconception on the part of the Lower Court in this regard. This is due to the fact that it is apparent that the respondent fully understood the arguments in the appellant’s brief, notwithstanding the manner in which they were set out and addressed all the issues in her brief. The record of proceedings of the Lower Court during the hearing of the appeal on 15th October 2007, contains the observation of Mrs. O. T. Opara, learned counsel for the respondent, on the format of the appellant’s brief and the response of learned senior counsel for the appellant thereto. The brief exchange is captured below:

“Mrs. Opara: Before I adopt my brief, I wish to observe that appellant formulated two issues but canvassed 8 issues out of five grounds of appeal. The appellant’s argument on

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eight issues only one is competent. The brief is confusing and it is difficult to understand. I urge the Court to discountenance the argument in support of seven of the eight issues canvassed. The seven do not arise from any of the grounds of appeal. The seven are contained from page 9 paragraph 6.1 to page 19 paragraph 6.29. The survivor is at page 8 paragraph 6.1 to page 9 paragraph 6.4.

Candide-Johnson: … The appellant formulated only two issues. I have two issues and all the arguments relate to the two issues. I cannot be constrained as to the number of arguments I can canvass. I urge the Court to allow the appeal.”

The position of the Court below is that the appellant abandoned the issues formulated and proffered argument on the sub-issues instead. I have carefully scrutinised the two issues formulated by the appellant and the submissions contained in its brief of argument. Firstly, I am satisfied that the two issues for determination, though not tied to specific grounds of appeal, arise from the five grounds of appeal. Issue 1 complains of the failure the trial Court to evaluate the evidence and its failure to consider the applicable law. This

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issue covers Ground 1 of the Notice of Appeal. Issue 2 complains about the award of damages and interest. It encompasses Grounds 2, 3, 4 and 5. Under the first two sub-heads titled ‘failure to analyse and evaluate evidence and case’ and ‘applicability of Warsaw Convention,’ arguments were proffered in respect of Issue 1. Under the remaining sub-heads, which I numbered earlier as (c), (d), (e), (f) and (g), arguments were made in respect of Issue 2. In the respondent’s brief, in arguing her sole issue/arguments as to the legal effect of the appellant’s failure to lead evidence in support of its pleadings, the applicability of the Warsaw Convention, proof of special and general damages, establishment of her claim for breach of her fundamental rights and proof of the claim for interest, were fully canvassed before the Court was called upon to dismiss the appeal and affirm the judgment of the trial Court. It is quite clear that the respondent was not misled in any way notwithstanding the unwieldy manner in which learned senior counsel for the appellant chose to argue the appeal. With respect, I am unable to agree with their Lordships of the Court below that the

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appellant abandoned its issues and proceeded to argue the sub-issues instead. This would be a valid observation if the so-called sub-issues were completely unrelated to the grounds of appeal or the issues formulated.

Learned counsel for the respondent and the Court below placed heavy reliance on the persuasive authority of the Court of Appeal in Sekoni v. UTC Nig. Plc (supra) where the Court held the appellant’s brief to be incompetent on the ground that neither the grounds of appeal nor issues were argued, as the appellant created three sub-divisions from it two grounds of appeal and also failed to link arguments in the brief to the two issues formulated. The Court was of the view that in the circumstances of that case it was not possible to ascertain which aspects of the appellant’s submissions were being addressed by the respondent’s two issues without descending into the arena and performing a ‘surgical operation’ on the brief which would occasion a miscarriage of justice to the respondent. The position of this Court, and I daresay the modern approach to adjudication, is to do substantial justice to all parties before it. While it is true that rules

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of Court are prima facie meant to be obeyed, it is equally trite that it is not every irregularity that would result in the dismissal of the entire proceedings. See: Duke Vs Akpabuyo (2005) 19 NWLR (Pt.959) 130: Nneji Vs Chukwu (1983) 3 NWLR (Pt.81) 184. Rules of Court are meant to regulate and provide guidelines for the conduct of proceedings before the Court. They are meant to assist the Court in its primary function of dispensing justice to the parties. Where strict adherence to the rules will occasion injustice, the Court will lean in favour of doing substantial justice. See: PDP Vs INEC & Ors. (2012) LPELR-9724 (SC) @ 23 & 30 per Fabiyi & Rhodes-Vivour, JJSC: Abubakar Vs Yar’Adua (2008) ALL FWLR (Pt.404) 1409; UTC Vs Pamotei (1989) 2 NWLR (Pt.103) 244 @ 251.

The position of this Court on the need to do substantial justice was clearly stated in: Obiora Vs Osele (1986) 1 NWLR (Pt.97) 279 and Akpan Vs The State (1992) 6 NWLR (Pt.248) 439, cited by learned senior counsel for the appellant. In Akpan Vs The State (supra) @ 471 F-G, this Court held:

“Briefs have been designed to help this Court and the Court of appeal to expedite the

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disposal of appeals… we come across poorly written briefs practically every day. Much as counsel have no excuse for producing poor briefs now, the fact they have done so will not discharge this Court from its duty of doing substantial justice to the parties who appear before it,”

In Obiora Vs Osele (supra), His Lordship, Obaseki, JSC @ 295-296 G-B held:

“the purported exercise of the powers of dismissal for want of prosecution in this matter by the Court of Appeal under Order 6 Rule 10 merely because the brief was not in the form set out in the rules was a wrongful exercise of power and occasioned a serious miscarriage of justiceif counsel lacks the necessary skill in the formulation of the appellant’s brief, the appellant case should be judged by the merits of the brief. The brief should not be thrown out to enable the appellant suffer the sanction of not filing a brief.

His Lordship, Oputa, JSC @ 302 D – G (supra) held:

”Again and as happened in Akpan Vs 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 –

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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, nor in technicalities. These should all aid not defeat justice.

The mere fact that a brief filed by an appellant does not comply with the rules made under Order 6 of the Court of Appeal Rules does not mean that the appellant has filed no brief. The Court cannot in these circumstances deem a brief filed as no brief. That would be wrong,”

The case of Sekoni v. UTC (supra) and other authorities relied on by learned counsel for the respondent are not in accordance with the current policy of the Court to eschew technicalities in favour of substantial justice.

In the course of this judgment, I have held that contrary to the finding of the Court below, the arguments in the appellant’s brief clearly addressed the two issues formulated for determination. There is a clear link between all the sub-heads and the two issues for determination, which are equally derived from the grounds of appeal. I agree with

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learned counsel for the respondent that the format of the brief is not in strict compliance with Order 17 Rule 3 (1) of the Court of Appeal Rules 2007. However, in the circumstances of this case it is my considered view that the non-compliance amounts to an irregularity which should not render the brief liable to be struck out, particularly as the respondent was unable to show that she was misled or that she had suffered any miscarriage of justice. The justice of the case demands that the Court below ought to have considered the merit of the arguments proffered rather than concentrating on the defect in form. It is also pertinent to note that even learned counsel for the respondent conceded that Issue 1 was properly argued by learned counsel for the appellant. At the very least, the Lower Court ought to have considered Issue 1 on its merit. The peremptory dismissal of the appellant’s appeal by the Court below on a technical ground has no doubt occasioned a miscarriage of justice against it.

The sole issue in this appeal is accordingly resolved in favour of the appellant.

On the whole, I find merit in this appeal. It is hereby allowed. The judgment of

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the Court of Appeal, Lagos Division delivered on 15/11/2007 is hereby set aside. It is hereby ordered that the appeal shall be remitted to the President of the Court of Appeal for expeditious hearing by a different panel of Justices.

The parties shall bear their respective costs in the appeal.

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