Mrs. Onyido Ekwutosi Uchechukwu & Anor. V. Barr. Uzama Simon Okpalaeke & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling)

The 1st and 2nd Respondents (who will hereinafter simply be referred to as ‘the Applicants’) in the motion on notice dated 15th March 2010 and filed on 16th March, 2010 seek for the following:-

“A. AN ORDER of the Honourable Court striking out Paragraphs 3.01, 3.02, 3,03, 3.04, 3.05, 3.06, 3,07, 3.08, 3.09, Paragraphs 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, and Paragraphs 3.17, 3.18, 3.19, 3,20, 3,21, 3.22, 3.23 and 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009.”

The grounds for the application as set out in the motion paper are as follows:

I. The Appellants under the guise of filing consequential amendment to the 1st and 2nd Respondents’ Further Amended Brief of Argument, abandoned the argument canvassed in their Reply Brief of Argument dated 27/7/08 and filed on 28/7/08 and canvassed fresh argument in Paragraphs 3.01 – 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009.

II. The said Paragraphs 3.01 – 3, 24 of the Appellant’s Amended Reply Brief of Argument is an amendment to the Appellants’ Reply Brief of Argument which amendment does not have any nexus with, and is not consequential upon the further amendment to the 1st and 2nd Respondents’ Amended Brief of Argument as reflected in the 1st and 2nd Respondent’s Further Amended Brief of Argument dated 29/6/09 and deemed filed on 8/12/2009.

III. The argument contained in Paragraphs 3.17 – 3.24 of the Appellants’ Amended Reply Brief of Argument not being a consequential amendment, the Appellant’s (sic) ought to have obtained the leave of the Honorable Court to canvass the same.

IV Paragraphs 3.01 – 3.24 of the Appellant’s Amended Reply Brief of Argument dated 21/12/2009 and filed on 22/12/2009 are incompetent, the Appellants having failed to obtain the leave of the Honourable Court to canvass the same.

V. Paragraphs 3.01 – 3.16 of the said Appellant’s Amended Reply Brief of Argument contain argument on fresh points, which ought not to be contained in a Reply Brief of Argument.”

The motion was entertained on 23/3/2010. At the hearing of the motion, learned senior counsel for the Appellants/Respondents (who will hereinafter simply be referred to as ‘the Appellants’) J.T.U. Nnodum SAN, applied to withdraw the counter affidavit filed by the Appellants in response to the supporting affidavit of the instant motion. He said he was doing this in order that the motion is heard expeditiously and by necessary implication the substantive appeal. The application in this regard was sequel to the disclosure by learned lead counsel for the Applicants that the counter affidavit in question was served on him on 22/3/2010 and that he intended to react to the same. Suffice it to say that the counter affidavit of the Appellants in question sworn to by the 1st Appellant on 22/3/2010 and filed on the same date was duly struck out, the application in that regard having not been opposed by any of the parties.

Learned lead counsel for the Applicants, Arthur Obi Okafor in moving the application relied on its supporting affidavit. He submitted that all the depositions of facts in the supporting affidavit should be deemed as established as they have not been controverted or denied in any counter affidavit.

Learned lead counsel referred to paragraph 3.01 of the Appellants’ Amended Reply brief which he said deals with ‘incompetence of the Respondents’ (i.e. Applicants’) Notice”. He said that argument concerning the incompetence of the Respondents’ Notice is not contained in the Appellants’ Reply brief dated 27/7/2008 and filed on the same day. (It is to be noted that the brief in question was actually filed on 28/7/2008). Learned lead counsel said that no application to amend the Appellants’ original Reply Brief to introduce argument on the competence or otherwise of the Respondents’ (i.e. Applicants’) Notice has been brought by the Appellants and referred to paragraphs 4 – 9 of the supporting affidavit in this regard. Learned lead counsel again referred to paragraphs 4 – 9 of the supporting affidavit as showing that what the Applicants applied for, was leave to further amend their Amended Brief of Argument. That the said Further Amended Brief of Argument was deemed filed on 8/12/2009. That in granting the application, the Court gave the Appellants leave to file consequential amendment. It is the submission of learned lead counsel that the issue of the competence of the Respondent’s (i.e. Applicant’s) Notice was never raised in their Further Amended Brief of Argument. Learned lead counsel further submitted that the Appellants in the circumstances cannot introduce the said issue as it does not flow or arise from the 1st and 2nd Respondent’s (i.e. Applicant’s) Further Amended Brief. That the issue is a fresh one which is not permitted to be so raised, by virtue of Order 17 Rule 5 of the 2007 Rules of this Court. It is also the submission of learned lead counsel that an appellant will not be allowed to introduce an issue into his brief when the respondent cannot reply to the same. To allow this, learned lead counsel submitted would tantamount to a procedure by ambush. Learned lead counsel referred to Order 9 Rule 6 of the Rules of this Court as not even stipulating that things done in certain circumstances are incompetent. It is the submission of learned lead counsel that in the circumstances of this case, the Appellants have waived the right to object to most of the things they are now objecting to. This is particularly so as the Appellants filed a reply and even amended the reply after they ought to have had knowledge of the same.

Referring to paragraph 3.17 of the Amended Reply Brief, learned lead counsel said that it deals with what had been extensively canvassed in the Appellants’ previous brief. He submitted that the case of Buhari v. Obasanjo cited by the Appellants was not relevant. The Court was urged to grant the application before it.

Learned senior counsel for the Appellants J.T.U. Nnodum SAN, relied all the following processes in opposing the motion: (i) Further Amended Brief of Argument of the 1st and 2nd Respondents; (ii) Appellants’ Reply Brief of Argument; (iii) Appellants’ Amended Reply Brief of Argument; and (iv) 1st and 2nd Respondents’ Amended Brief of Argument. These processes learned SAN submitted are documents which the Court can take judicial notice of as they are part of the Court’s record. In the circumstances, learned SAN submitted that the non-filing of a counter affidavit is not fatal to the Appellant’s opposition to the instant motion. This is particularly so as the Court is not bound by what a party decides to attribute to a process in the Court’s file. It is the submission of learned SAN that Order 17 Rule 5 of the Rules of this Court permits the Appellants to reply to the Further Amended Brief of Argument of the 1st and 2nd Respondents (i.e. Applicants) in the manner they have done in the Appellants’ Amended Reply Brief. Learned SAN said that in the Further Amended Respondents’ Brief, amendment was carried out to several paragraphs of the amended brief viz paragraphs 4.26; and 6.01 – 6.05.