His Royal Highness Agbogidi Ofulue Ii & Anor V. Pa (Diokpa) John Okoh & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Delta State, contained in the Ruling of Honourable Justice G. B. Briki-Okolosi delivered on 16th May, 2003.

The background facts of this matter shows that in an action in suit No.A/157/2002 instituted on 5th August, 2002 the Plaintiffs/Respondents who expressed in the writ to be suing in a representative capacity claim to be the kingmakers and supreme authority in Ubulu-Uku. They claim sundry declarations, injunctions and order with the respect to the appointment of the 2nd Defendant/Appellant as the Ozoma Ani; an appointment which they claim is contrary to Ubulu-Uku native law and custom.

The Defendants/Appellants entered appearance under protest and filed a preliminary objection wherein they contended that the suit was incompetent and urged that the same be dismissed or struck out. In a considered Ruling which is at pages 30 to 42 of the Records of Appeal, the Lower Court overruled the said preliminary objection for not being properly conceived. The Defendants/Appellants being dissatisfied with the said Ruling appealed against the same. The Notice of Appeal is at pages 43 to 44 of the Record of Appeal.

The Records of Appeal having been compiled and transmitted by the Registry of the Lower Court, the learned Counsel for the parties filed and exchanged briefs of argument. The Appellants brief of argument is dated 5th June, 2006, but filed on 6th June, 2006. The Respondents Brief of Argument is dated and filed on the 25th day of August, 2006.In their brief of argument which was settled by P. C. E. Dunkwu Esq., the Appellants distilled two issues for determination as follows:

1. When a Court finds that a matter is incompetent what order can it make in law?
2. What is the effect of a decision which was delivered outside the three months stipulated in Section 294 (1) of the constitution of Federal Republic of Nigeria?

In their brief of argument, which was settled by Albert N. Maidoh Esq., the Respondents raised a preliminary objection to the competence of Issue No. 1 formulated in the Appellants Brief on the ground that the said issue is not covered by any ground of appeal. The Respondents then proceeded to formulate two issues for determination in the appeal as follows:

“1. Was the learned trial Judge right in dismissing the Appellant’s Preliminary Objection dated 18/10/2002”

“2. Whether section 294 (1) of the constitution of the Federal Republic of Nigeria, 1999, is applicable to facts of the case at hand.”

When the appeal came up for hearing, learned Counsel for the parties who had been duly served with the notice of hearing were not in court to present oral argument on the appeal. However, since briefs had been filed and exchanged by the parties, the appeal was treated as having been duly argued, pursuant to the provisions of Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011.

PRELIMINARY OBJECTION

In the preliminary objection which is incorporated at pages 7 to 9 of the Respondents Brief of Argument, the Respondents contend that Issue No. 1 distilled in the Appellants Brief is not covered by any of the grounds of the appeal; it was posited that issues for determination must be related to the grounds of appeal filed. The cases of ONYIDO vs. AJEMBA (1991) 4 NWLR (PT 184) 203 at 217 – 218; EGBE vs. ALHAJI (1990) 1 NWLR (PT.128) 549 at 567 and MOMODU vs. MOMOH (1991) 1 NWLR (PT.169) 608 at 620 -621 were cited in support.

It is the further contention of the Respondents, that the Lower Court in its Ruling did not declare the Respondents suit as constituted to be incompetent and that it was therefore speculative and an academic exercise for the Appellants to have formulated their Issue No. 1 in a manner that is premised on a finding that was never made by the Lower Court. The Respondents maintained that a court does not embark on an academic exercise. The cases of OKULATE vs. AWOSANYA (2000) 74 LRCN 167 at 196 and A-G KWARA STATE vs. ALAO (2000) 9 NWLR (PT 671) 84 amongst other cases were referred to. The Respondents urged the court to uphold the preliminary objection and strike out Issue No. 1 of the Appellants Brief for being incompetent.

The Appellants did not file any Reply brief, so they did not reply to the submissions of the Respondents on the preliminary objection.

Now, the law seems to be well settled that where an appellant fails to file a Reply Brief when it is necessary to do so, he will be deemed to have conceded the points arising from the Respondent’s Brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT.199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 D-E and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT.1209) 518.