Brief of argument

• Pages: 356-383

356

Court of first instance. See – Brantuo v. Poko (1938) 4 W.A.C.A. 210.” - Per

Nnamani, J.S.C., in Melifonwu v. Egbuji Suit No. S.C.11/1982; (1982) 13 N.S.C.C.

341 at 350.

(35) BRIEF OF ARGUMENT

627. Abandoned and amended brief.

“This case was referred to and followed by the Court in Okonkwo v. Okonkwo

(1998) 10 N.W.L.R. (Pt. 571) 554 at 570. There is no doubt that in this case, the

Court of Appeal considered an abandoned brief dated 3/6/91 and failed to consider

the amended brief dated 5/3/92 in arriving at its decision. The consequences of this is

that the Court of Appeal did not hear or consider the appellant’s case as presented

before it since his case was considered an arguments which he had already abandoned.

It does not matter in my view, that the issues involved were straight forward or that

the Appellant was heard in oral argument as learned counsel for the respondent

submitted in his brief.” - Per Kalgo, J.S.C., in Tunbi v. Opawole (2000) 1 S.C. 1 at

8.

628. An appellant not advancing an argument on an issue raised on appeal.

“It is trite law that an issue on which no argument has been advanced by an appellant

must be deemed. See Are v. Ipaye (1986) 3 N.W.L.R. (Pt. 29) 416 at 418; Ikpuku

v. Ikpuku (1991) 5 N.W.L.R. (Pt. 193) 571 and Ajibade v. Pedro (1992) 5 N.W.L.R.

(Pt. 241) 257.” - Per Iguh, J.S.C., in Atoyebi v. Gov. Oyo State Suit No. S.C.294/

1991; (1994) 5 N.W.L.R. (Pt. 344) 290 at 305.

629. Appellant failing to file reply to new point raised in the respondent’s

brief.

(1) “Learned Senior Advocate for the respondent has debunked the appellants’ brief

premise as erroneous: see pages 5-6 and 8 of the respondent’s brief of argument.

Firstly, that a deliberation on an application for interlocutory injunction must be confirmed

to the facts deposed to in affidavits in support of the application including affidavit

urgency. Secondly, that the question of delay in bringing application for the injunctive

reliefs cannot be construed with reference to the debenture Deed as the Deed has

been executed and any challenge of its validity cannot be by way of an injunction,

which as a rule is, nor a remedy for an action that has been completed. The two

points are new matters arising from the respondent’s brief of argument in answer to

which the appellants are obliged to file a reply brief by virtue of rule 5 of Order 6 of

the Court of Appeal Rules, 1981. The appellants did not file a reply and must by

operation of the rule 10 thereof be deemed to have conceded the two points: see

Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (Pt.

199) 501, 533-534; Orah v. Nyam (1992) 1 N.W.L.R. (Pt. 217) 279, 287; Popoola v.

Adeyemo (1992) 8 N.W.L.R. (Pt. 275) 1, 32; and Nyambi v. Osadim (1997) 2

Paras. 626-629 352

357

N.W.L.R. (Pt. 485) 1, 8.” - Per Olagunju, J.C.A., in U.T.B. Ltd. v. Dol Pharm

(Nig.) Ltd. Suit No. CA/E/58/99; (2002) 8 N.W.L.R. (Pt. 770) 726 at 743.

(2) “But it is particularly strange that when those allegations were repeated on page

6 of the respondent’s brief of argument the appellants with the aid of the expert

knowledge of their counsel did not consider it proper to file an appellants’ reply to

rebut the respondent’s defence that has put the appellants’ claim of a peaceful take

over of the respondents’ assets and business in letters. It follows from the appellant’s

failure to offer and reply that they are deemed to have conceded all the points made

by the respondent applying the provisions of Order 6, rules 5 & 10, of the Rules of

this Court and the relevant authorities hereinbefore cited.” - Per Olagunju, J.C.A., in

U.T.B. Ltd. v. Dol Pharm (Nig.,) Ltd. Suit No. CA/E/58/99; (2002) 8 N.W.L.R.

(Pt. 770) 726 at 744.

(3) “A new point raised in respondents’ brief of argument if not countered by

Appellants’ Reply brief remains conceded and unchallenged. In the instant case, in

which a new issue was raised in respondents’ brief by way of preliminary objection

at page 7 of the respondents’ brief, duly served on the Appellants and to which point

or issue, appellants’ counsel filed no reply brief or proffered oral argument at all, we

need no crystal balls to gaze or divine when indeed the appellants received the

record of appeal in the case.” - Per Orah, J.C.A in Iro v. Echewendu Suit No. CA/

J/140/95; (1996) 8 N.W.L.R. (Pt. 468) 629 at 636.

630. Appellate Court’s attitude to a bad brief.

“Notwithstanding the defective issues the appellant can take solace that this Court

prides itself in doing substantial justice as pronounced by Nnaemeka: Agu, J.S.C., in

Solomon Thomas Akpan v. The State (1992) 6 N.W.L.R. (Pt. 248) page 439 at 471

– 472: - “Although the practice of brief writing has been with us for some fifteen

years we come across poorly written briefs practically everyday. Much as counsel

have no excuse for producing poor briefs now, the fact that they have done so will

not discharge this Court from its duty of doing substantial justice to the parties who

appear before it. As the West African Court of Appeal, quoting Thesiger, L.J. in

Collins v. Vestry of Paddington (1880) 5 Q.B.D. 368 p. 381 in A.Y. Ojikutu v.

Francis E. Odeh (1954) 14 W.A.C.A. 640 said on page 641: - “Blunders must take

place from time to time and it is unjust to hold that because a blunder …….has been

committed, the party blundering is to incur the penalty of not having the dispute

between him and his adversary determined upon merit.” If that was the attitude of

the Court during the hey days of technicality in the Court, how much more now that

this Court has in several cases declared its intention to do substantial justice? See

further Universal Vulcanising (Nig.) Ltd. v. Ijesha United trading & Transport

Company Ltd. (IUTTC) & 6 Ors. (1992) 9 N.W.L.R. (Pt. 266) page 388 at page

397 S.C.” - Per Onalaja, J.C.A., in Wema Bank Ltd. v. Intl. Fishing Co. Ltd. Suit

No. CA/L/199/93; (1998) 6 N.W.L.R. (Pt. 555) 557 at 567.

353 Brief of argument Paras. 629-630