Abandoned brief

• Pages: 41-41

41

4.

APPEAL

(7) ABANDONED BRIEF

77. Abandoned brief of argument.

(1) “It is trite law that an abandoned brief of argument cannot be made use of in

determining the merits of an appeal.” - Per Ayoola, J.S.C., in Tunbi v. Opawole Suit

No. S.C. 92/1993; (2000) 1 S.C. 1 at 14;(2000) 2 N.W.L.R. (Pt. 642) 275 at 289.

(2) “It is fatal for an appeal Court to decide an appeal upon the abandoned brief of

argument of any of the parties no matter the result arrived at if an appeal is lodged

against the judgment.” - Per Uwaifo, J.S.C., in Tunbi v. Opawole Suit No. S.C. 92/

1993; (2000) 1 S.C. 1 at 13; (2000) 2 N.W.L.R. (Pt. 644) 275 at 288.

78. Error of Court in considering an abandoned brief.

“It is more than a technical error committed by the Court of Appeal to decide an

appeal before it on an abandoned brief. As Karibi Whyte, J.S.C., opined in Nwokoro

& Ors. v. Titus & Anor. (supra) to wit: - “In the absence of a brief of argument

properly so called, and the Court having not dispensed with it ………….it seems to

me therefore obvious that the case of the appellant which was before the Court

below was not considered by that Court”. The Court of Appeal by relying on the

abandoned brief in arriving at its decision, has not properly considered the appeal

before it. The provision of fair hearing as entrenched in the constitution has been

breached. The appeal must therefore succeed.” - Per Wali, J.S.C., in Tunbi v.

Opawole Suit No. S.C. 92/1993; (2000) 1 S.C. 1 at 9; (2000) 2 N.W.L.R. (Pt. 644)

275 at 284-285.

79. Should an appellate Court consider issues raised in an abandoned brief

of argument?

“As stated earlier in this judgment the plaintiff relied on two briefs dated 29/4/97

and 20/2/98 respectively which briefs were in reply to earlier briefs filed by the

appellants which earlier briefs the appellants no longer rely on. In the brief dated 29/

4/ 97, the plaintiff raised objection to two issues raised by the appellants in their joint

brief of 17/2/97 (now discarded). The two issues were: “(i) What is the effect of the

phrase “subject to contract” contained in Onitiri’s letter of offer dated 4/1/91 (Exhibit

B) of communication between the plaintiff and the 1st defendant.”

....................................(iv) “Whether even if there was a contract between the

plaintiff and the 1st defendant, such contract is void for contravention of the Land

Use Act.” Issue (i) is not now one of the issues formulated by the appellants in their

brief of 6/12/200. No useful purpose will, therefore, be served by considering the

objection to the said issue .” - Per Ogundare, J.S.C., in Incar v. Bolex Suit No. S.C.

50/1996; (2001) 28 W.R.N. 116 at 130 – 131; (2001) 12 N.W.L.R. (Pt. 728) 646 at

664-665.

Abandoned Brief Paras. 77-79