Legalpedia Citation: (2015) Legalpedia (CA) 19281
In the Court of Appeal
Thu Apr 30, 2015
Suit Number: CA/L/484/06
CORAM
PARTIES
CHIEF EMMANUEL NWUDE APPELLANTS
1. FEDERAL REPUBLIC OF NIGERIA
2. LEO WALLACE COCHRANE
3. LEO WALLACE COCHRANE JR.
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 2nd and 3rd Respondents filed a motion on notice before the Court praying amongst others that pursuant to Order 20 Rule 5(1) of the Court of Appeal Rules the Court should strike out paragraphs 2.1 to 2.4 of the Appellant’s reply briefs as its content do no constitute a reply on points of law to the issues of law raised in the Applicants’ amended brief. The Appellant’s on the other hand, filed a counter affidavit in opposition to the motion. Parties filed and adopted their written addresses before the Court proceeded to consider the application.
HELD
Application Granted In Part
ISSUES
Whether paragraphs 2.1 to 2.4 of the said Reply brief are competent and if they are not whether they should be struck out?If this honourable court chooses to allow those paragraphs to remain whether the 2nd to the 3rd Respondents should be allowed to respond to them.If the 2nd and 3rd Respondents are allowed to respond to the said paragraphs whether the Appellants cannot be heard to make the submissions contained in the aforesaid paragraphs.
RATIONES DECIDENDI
PRELIMINARY OBJECTION – WHETHER AN APPELLANT CAN RAISE A PRELIMINARY OBJECTION IN A REPLY BRIEF?
“An appellant cannot also raise a preliminary objection in a reply brief, it offends Order 10 Rule 1 of the rules of this court”. PER Y. B. NIMPAR, J.C.A.
REPLY BRIEF – A REPLY BRIEF IS FILED WHEN AN ISSUE OF LAW OR ARGUMENTS RAISED IN THE RESPONDENT’S BRIEF CALLS FOR A REPLY.
“A reply on points of law received judicial attention wherein the case of HARKA AIR SERVICES (NIG) LTD V KEAZOR ESQ (2011) LPELR – 1353 the apex court held thus:
“The appellate courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondents brief. Although the filing of a reply brief by an appellant is not mandatory, where a respondent’s brief raises issues or points of law covered in the appellant’s brief, an appellant ought to file a reply as failure to file without an oral reply to the points raised in the respondent’s brief may amount to a concession of the points of law or issues raised in the respondents brief. It is not proper to use a reply to extend the scope of the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply brief is not meant to have a second bite at the cherry, which is exactly the purpose of the appellant’s reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his arguments and submission in the two issues raised for determination, it is utterly irrelevant to this appeal.”
See also Olafisoye V FRN (2004) 4 NWLR (Pt 864) 580; Popoola V Adeyemo (1992) 8 NWLR (Pt 257) 1; Longe V F.B.N Plc (2010) 6 NWLR (Pt 1189) 1 and Shuabu V Mailodu (1993) 3 NWLR (Pt 284) 748. PER Y. B. NIMPAR, J.C.A.
JUSTICE – PROCESSES INVOLVED IN JUSTICE
“Justice is said to be a three way process, justice to the accused or appellant in this case, justice to the victims and justice to the society”.PER Y. B. NIMPAR, J.C.A.
FUNCTUS OFFICIO – A COURT IS SAID TO BE FUNCTUS OFFICIO WHEN IT HAS FULFILLED ITS FUNCTION IN RESPECT OF A MATTER
“Functus officio is a doctrine that stands against revisiting issues. See First Bank Of Nigeria Plc V T.S.A Industries Limited (2010) 15 NWLR (Pt 1216) 247 where the Supreme Court held thus:
“A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or revisit the matter. Once a court delivers its judgment on a matter, it cannot revisit or review the said judgment except under certain conditions. Where importantly a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process.”
See also Ukachukwu V UBA (2005) 18 NWLR (Pt 956) 1; Anyaegbunam V A.G. Anambra State (2001) 6 NWLR (Pt 710) 532 and Mohammed V Husseina (1998) 14 NWLR (Pt 584) 108”.PER Y. B. NIMPAR, J.C.A.
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules