Chief Emmanuel Nwude V. Federal Republic Of Nigeria & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling)

This ruling is predicated upon a motion on notice dated 12/2/15 filed on the same day by the 2nd & 3rd Respondents praying the court for the following:

(i) Pursuant to Order 20 Rule 5 (1) of the Court of Appeal Rules and the court’s inherent jurisdiction striking out paragraphs 2.1 to 2.4 of the Appellant’s Reply brief at pages 1 to 3 dated 11th day of February, 2015 filed on the 11th day of February, 2015 in response to the 2nd & 3rd Respondents Amended Respondents’ brief amended the 26th day of January, 2015 and filed on the 26th day of January, 2015.

(ii) Further and in the alternative, pursuant to Section 36 (9) of the Constitution of the Federal Republic of Nigeria 1999 and the court’s inherent jurisdiction granting them leave to respond orally at the hearing of the appeal or by a written brief to be filed within seven days or as the court may direct on the point taken at paragraphs 2.1 to 2.4 aforesaid;

And for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

The application is predicated upon the following grounds:

(1) The contents of paragraphs 2.1 to 2.4 aforesaid do not constitute a reply on points of law to the issues of law raised in the Applicants’ Amended Brief.

(2) The said contents of paragraph 2.1 to 2.4 aforesaid amount to an objection to the Applicants being heard on the hearing of the appeal.

(3) In so far as the said objection was taken in the reply brief without a notice of preliminary objection having been filed, it amounts to an ambush on the Applicants who ordinarily have no right of reply to reply brief.

(4) Unless the paragraphs are struck out or leave is given to the Applicants to respond thereto, they will be unduly prejudiced.

The motion is supported by an affidavit of 4 paragraphs duly sworn to by David Ugbong. Pursuant to order of court, parties filed written submissions, applicant’s address is dated 6th March, 2015 filed same day.

The appellant in response filed a counter affidavit in opposition to the 2nd & 3rd Respondent’s motion. It is made up of 9 paragraphs duly sworn to by Motolani Oyedele. The appellant also filed a written address on the order of court. The 2nd & 3rd Respondents filed a reply on 6/3/15.

Both written addresses and reply were adopted and relied upon to urge the court to find for their respective positions.

The 2nd & 3rd Respondents distilled 3 issues for determination as follows: