Being a paper presentation by Hon. Mela Audu Nunghe, SAN,LLM,MCIArb.UK (MAGAYAKIN TANGALE) At The Training On Advanced Course In Practice And Procedure Organized By The National Institute Of Advanced Legal Studies (NIALS)? Abuja On 7th November, 2023.
Prologue
It is with a great sense of responsibility that I accept the invitation by the Institute to deliver this paper. I must express my profound appreciation to the management of the National Institute of Advance Legal Studies (NIAS) for finding me worthy of writing and delivering a paper on such a topical issue before this eminent and distinguished audience. I consider this invitation an honour and a rare privilege, to which I am grateful. I hope I justify the unique opportunity and privilege of the invitation.
Introduction
In legal parlance, a “brief” can be defined as “a written statement setting out the legal contentions of a party in litigation. A document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them.”
Furthermore, an “appellate brief” is defined as “a brief submitted to an appeal court by a party to an appeal pending in a court exercising appellate jurisdiction.
The brief may be filed for an individual party or on behalf of two or more parties”
In defining a brief, the Supreme Court in Obiora v. Osele (1989) LPELR-2182(SC), the Learned Justice Andrews Otutu Obaseki, JSC (as he then was) at (Pp 23- 24 Paras E – A) held thus:
What is a brief?
I must search for the definition first in the Court of Appeal (Amendment) Rules, 1984 and more especially in Order 6 Rule 2. That Rule provides as follows: “The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.” A brief is therefore a succinct statement of the appellant’s or the respondent’s argument in the appeal and by Rule 9(a) of Order 6.”
What this means in essence is that a brief is a succinct statement of the appellant’s or respondent’s argument to an appeal. In the context of this instant paper, focus would be on the practice and procedure of brief writing and presentation in Nigerian Appellate Courts in the Court of Appeal and the Supreme Court.
This paper will highlight some of the salient principles involved in the practice of brief writing in our appellate courts. For the purpose of this presentation, we would concentrate on the Supreme Court and the Court of Appeal Rules.
1.2 Rationale for the Adoption of Brief Writing in Nigeria.
Before the introduction of the requirement of Brief writing in respect of appeals before the court of Appeal and the Supreme Court, appeals were argued on the grounds of appeal filed.
In those days, oral arguments and submission were argued before the appellate courts for hours, if not days on end. For example, the writer still has a vivid recollection of the fact that oral arguments and submissions by counsel in Appeal No. SC.309/74: D.O. Idudun & Ors. v Daniel Okumagba, in which he appeared as one of the Counsel for the Respondents, occupied two weeks of four working days each between 29th March and 8th April, 1976. Obviously, the system of reliance on only oral submissions was found to be tedious and time-consuming, and therefore found to be unsatisfactory. Hence, the requirement of brief writing was introduced, and, as will be shown, the time for oral argument in appeals had to be limited to one hour on each side, unless extended by Court. In other words, the brief of argument has, since its introduction, become more important than oral argument in the appellate process.
Origin of Brief Writing in Nigeria.
It is a consensus amongst legal scholars that the concept of appellate brief writing can be traced to the United States where it was agreed it began. Before the mid- fifties, oral arguments dominated the fields in America. Thereafter, there occurred, as a result of litigation explosion, a shift of emphasis from oral hearing, which dragged on for days, to brief writing which has since dominated the process of appeal.
A good picture of the emergence of brief writing in the United States as sketched above is contained in the book written by an American professor of law, Professor Robert Martineau who graphically captured the development as follows:
“Appellate review developed in England primarily as an oral process——- oral arguments often lasted for several days. That tradition was carried over to this country —–Beginning in the mid 1950’s however, oral arguments became
shorter…Appellate attorneys must now rely primarily upon their briefs. Oral argument is no longer the central focus of the appellate process but rather just one step in the process through which the appellate court performs its functions of error correction and law development.” 3.
3 Martineau, R.J. Modern Appellate Practice; Federal and State. Civil Appeals (1983) pp. 209 – 211.
And on limitation imposed on oral argument of appeals over there, another American author, D. Re Edwards, Chief Judge & Distinguished Professor of Law points out:
“The era of forensic oratory is almost a matter of the past. For example, in the Supreme Court of the United States, in the early period when cases were few, extended oral argument was permitted. Today, one is rarely privileged to speak for more than half an hour, except by special leave of court.”
Brief writing in Nigeria spans over three decades. So long as Supreme Court is concerned, brief writing started on 1st September, 1977 as a result of the Supreme Court Rules 1977.5 Under the 1977 Rules, it became obligatory for every appellant within eight weeks of receipt of the record, to file in Court and serve on the respondent, a written Brief of his argument in the appeal.
The respondent was also required under the Rules to file in the Court and serve on the appellant his own brief within six weeks of service on him of the appellant’s Brief.
An appellant might also within twenty-one days of service but not less than three days before the date of hearing file and serve on the respondent, an appellant’s reply brief.8 After being in operation for about eight years, the Supreme
4 Justice Edward D. Re, Brief Writing and Oral Argument 6th Ed., 1987 p. 179 were revoked and replaced by the Supreme Court Rules 1985.9 The 1985 Rules retained the provisions on the filing of Briefs with minor amendments relating to computation of time and other sundry matters.
At the Court of Appeal, Brief writing was introduced in 1983 as an expedient measure to fast track the hearing of election petition appeals arising from the 1983 general elections. In order to expedite such appeals, the President of the Court of Appeal issued Practice Directions requiring the filing of briefs.
This was merely a temporary measure to meet the exigencies of the period.
Under this temporary arrangement, the appellant was required to file his brief of argument with his notice and grounds of appeal, while the respondent had two days within which to file his brief. It must be observed that by virtue of Section 132 of the Electoral Act of 1982, the appellant had a maximum period of fourteen days to appeal to either the Court of Appeal or the Supreme Court. Furthermore, under the same section of the Act, both appellate courts were required to give their decisions not later than seven days from the date on which the appeals were filed.
All these drastic measures were meant to fast track appeals on election petitions. As will be recalled, the said Section 132 of the Act was unanimously declared unconstitutional, null and void by the Supreme Court on the ground that it breached the doctrine of separation of powers and constituted interference by the legislature in the judicial functions of the Courts.
The introduction of brief writing on a permanent basis in respect of appeals before the Court of Appeal took effect from the of 1st of September, 1984 by virtue of the Court of Appeal (Amendment) Rules, 1984.
The requirement however did not apply to appeals which had been listed for hearing before 31st December, 1984.
In all the subsequent amendments to the Court of Appeal Rules up-till the present one, the provisions on brief writing have been preserved.
1.4 Purpose of Brief
Primarily, the purpose of an appellate brief is to persuade the appellate court to uphold or reverse the decision of the trial court. Briefs are therefore aimed at presenting the issues involved in the case from the perspective of the party on whose behalf the brief was filed. Appellate briefs from both sides can be very valuable to anyone assessing the legal issues raised in the appeal.
The brief seeks to articulate cogent arguments to enable the appellate court reach a verdict whether to affirm or reverse the decision of the lower court on the strength of the available evidence juxtaposed with the provisions of the law, be it statutory law or case law. The brief may also articulate
For example, where the law on the subject appears recondite, vague or broad enough to allow the appellate court some discretion in decision making, the brief can advance formidable arguments putting aside legal technicalities to achieve substantial justice. Essentially, a brief is an advocacy document, so it must be forcefully persuasive on every issue of fact and law. The main purpose of the introduction of brief writing in our appellate system is to curtail the time that should have been wasted in the recording of lengthy oral arguments.
On the purpose of brief at the Appellate Court Per Nnaemeka-Agu, J.S.C. (as he then was) in Onifade v Olayiwola (1990) 7 NWLR (Pt.161) 130 at 159 held that brief has become a part of the argument, so that oral argument is now intended merely “to amplify, articulate and highlight the main points in the brief, whenever necessary.” So most of the time, a counsel simply relies on his brief and adopts the argument therein as his argument in the appeal. At other times, he may complement his argument in the brief with his oral argument.
To a very large extent, the introduction of brief writing has greatly reduced the burden of both the court and the counsel involved in appellate proceedings. In a paper which was presented at a seminar on Practice and Procedure at the Nigerian Institute of Advanced Legal Studies, sometime in 1995, one of our most eminent legal luminaries,
Dr.Mudiaga Odje: Brief Writing for the Court of Appeal and the Supreme Court. 8
Dr. Mudiaga Odje, S.A.N., O.F.R., of blessed memory, lamented his ordeal while arguing the landmark case of D.O. Idudun & Ors. v Daniel Okumagba, in which the oral arguments and submissions before the Supreme Court, lasted for a period of two weeks of four working days each, between 29th March and 8th April, 1976.
In the present dispensation, it is virtually impossible to experience such an ordeal on appeal. Brief writing has greatly reduced the stress in appellate proceedings. Highlighting the advantages of the practice, Niki Tobi J.C.A. (as he then was) in the case of Weide & Co. (Nig) Ltd. v Weide & Co. Hamburg, stated thus:
“Good briefs are pleasant to the Courts. They make the work of the Court easy and simple. On the other hand, bad briefs can be quite irksome and they tend to complicate the work of the Court. Bad briefs give the Judges sleepless nights”
A cardinal objective of a brief is to define the issues arising in the appeal in order to narrow the scope of controversy between the parties. Like pleadings at the trial court, parties are bound by their briefs and they are not allowed to spring surprises at the hearing of the appeal by canvassing issues outside their briefs. They can only elucidate or expand arguments on issues captured in their briefs.
In Nnamani v Nnaji, the Court of Appeal, Enugu Division stated the position that “the law is trite that parties are bound by their briefs in the sense that they cannot freely move in and out of their briefs by way of additions, subtractions or deviations as the case may be”.
Also, in Nimateks Associates v Marco Const. Co. Ltd., the court maintained that “parties are bound by the issues raised in their briefs of argument. They cannot make a case outside their briefs of argument. It is not the function of counsel to add a fresh case readymade in their briefs in oral submission in court.”
The Court of Appeal reiterated the position in more unequivocal terms in the case of Menakaya v Menakaya, as follows:
“A party cannot use the forum of oral argument to blindfold the adverse party or the Court to introduce fresh matters completely outside the regime of the briefs. …..Like pleadings at the trial court, parties in an appellate litigation are bound not only by the issues formulated but by the entire briefs before the Court.”
1.5 Types of Briefs.
The rules of the various appellate courts identify the type of briefs that can be filed by particular parties and at particular stages of the proceedings. Any brief that is filed contrary to the rules of the court is liable to be struck out as a defective brief. In the case of Obioha v Ibero, Belgore J.S.C. emphasized the position thus: “The rules of this Court require no brief in this matter. Except in substantive appeals, no brief of argument is required for any application except that for leave to appeal or for enlargement of time to appeal.
The situations requiring brief of argument are clearly set out in Order 6 rules 1 – 10 and order 10 of the Supreme Court Rules 1985 and so the Court found no rule in support of the brief of argument filed along with this application and it was accordingly discountenanced.”
There are basically three types of appellate briefs. They are: the Appellant’s Brief, the Respondent’s Brief, and the Reply Brief. It is important to note that outside the rules of court, in actual practice, there are a few other briefs which can be entertained by special leave of the court. They include the Supplementary Brief and the Brief.
We shall elucidate further on these briefs in this paper.
1.6 The Appellant’s Brief.
Under the various rules of court, the brief filing process commences with the appellant filing a written brief, being a succinct statement of his argument in the appeal.
The period for the filing of this brief varies from one court to the other. At the Supreme Court, the appellant’s brief must be filed and served within ten weeks of the receipt of the Record of Appeal. At the Court of Appeal, the period for filing is within forty-five days of the receipt of the Record. Notwithstanding the provisions of the rules on the computation of time, in the interest of justice, the Court may shorten or enlarge the time for the filing of the appellant’s brief.
The main purpose of an appellant’s brief is to present the issues arising in the appeal from the point of view of the appellant.
If the appellant is abandoning any point taken in the court below, this shall be so stated in the brief. Equally, under Order 6 Rule 5 (1) (b) of the Supreme Court Rules (As Amended 2014), if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this shall also be indicated in the brief. Through his brief, the appellant should not only give in advance a deep insight into his case but also Order 6 of the Supreme Court Rules (As Amended 2014)
28 Order 19 Rule 2 Court of Appeal Rules 2021
29 Order 19 Rule 10 Court of Appeal Rules 2021 and Order 6 Rule 9 Supreme Court Rules (As Amended in 2014) an insight to convince the court on the justice of the case.30 Under both rules of the Supreme Court and the Court of Appeal, in the event of the failure of the appellant to file his brief within the time stipulated under the rules, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be struck out.
If the respondent neglects to apply to the court to strike out the said appeal, the Court suo motu is entitled to strike it out. In such a situation the Court would have no choice but to fall back on its power to decongest the list of dead cases.32 The point must be made at this stage, that where the respondent is also a cross appellant, the cross appellant’s brief is formulated on the same principles regulating the drafting of an appellant’s brief. The cross- appellant’s brief is written to convince an appellate court that the decision appealed against is wrong in part. The “purpose of a cross appeal is to correct an error standing in the way of a respondent in the main appeal.33 Essentially, where the respondent has filed a notice of cross-appeal, to all intents and purposes, he becomes an appellant and he has a duty to persuade the court to reverse the relevant part of the decision of the lower court complained against.
1.7 The Respondents Brief.
A respondent’s brief is written to support the decision appealed against and to establish that the decision was correctly entered or made. At the Supreme Court, the respondent is expected to file and serve on the appellant his own brief within eight weeks after service on him of the brief of the appellant.
At the Court of Appeal, the respondent’s brief must be filed within thirty days of the service of the brief of the appellant on him.35 The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal should be dismissed.
A respondent’s brief should address all the issues raised in the appellant’s brief as failure to do so could result in such an issue being deemed to have been conceded. According to Nnaemeka-Agu J.S.C. in the case of Okongwu V N.N.P.C (1989) 4 NWLR (Pt. 115) 296 at 309: “For every material point canvassed in an appellant’s brief which is not countered in the respondent’s is deemed to have been conceded to the appellant.”
On the consequences of the failure of the respondent to file his brief of argument, there is a slight variation in the rules of our appellate courts. At the Supreme Court, if the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court. However under the Court of Appeal Rules, if the respondent fails to file his brief, he will not be heard in oral argument.
It is pertinent to note that, under Order 19 Rule 11 Court of Appeal Rules 2021, a respondent who fails to file his brief at the Court of Appeal may not be entirely shut out from the hearing. Where it considers the circumstances of the appeal to be exceptional, or where the hearing ought to be accelerated in the interest of justice, the Court can waive the provisions relating to the preparation and filing of briefs of arguments either wholly or in part.
It may however prove a herculean task to move the Court to waive this requirement where the default is on the part of the respondent alone. Sometimes in the course of an appeal, the respondent may find it expedient to take up a preliminary objection to the appeal. The normal procedure is to first file a notice of preliminary objection.
Thereafter, the respondent can incorporate his arguments on the preliminary objection in his brief of argument.
However, the Supreme Court has approved a more liberal practice in the recent case of Dakolo v Rewane-Dakolo, where Rhodes Vivour J.S.C (as then was) delivering the lead judgment, stated the position as follows:“Learned counsel for the respondents filed a respondent’s brief on 9/10/09. Incorporated in the respondent’s brief are arguments on a preliminary objection. This is now accepted practice, as it obviates the necessity of filing a separate notice of preliminary objection. The practice makes it possible for the judge to determine the preliminary objection with the appeal, thereby saving time.”
In essence, the refusal or failure of the respondent to file a separate notice of preliminary objection may not be fatal if he raises the said objection in his brief of argument. On the surface, this liberal approach might give the impression that the court is over indulging a respondent who is trying to circumvent the rules.
This may seem to tilt the scales of justice in favour of the respondent to the detriment of the appellant. However, upon an in-depth consideration of the approach, I hold a contrary view. I think this liberal approach is quite harmless. The failure of the respondent to file a separate notice does not place the appellant in any particular disadvantage.
The practice of introducing the preliminary objection in the respondent’s brief is a pragmatic approach to kill two birds with one stone. The appellant is not placed in any jeopardy whatsoever. He is entirely at liberty to react to the objection in his reply brief.
Finally, the point must be made that it is improper for the respondent to file the respondent’s brief before receiving the appellant’s brief. The Learned Oputa J.S.C (as then was), in Amaefule v. The State queried such an approach thus: “The respondent filed its brief before receiving the appellant’s brief.
This is rather a queer and awkward procedure. A respondent’s brief is usually an answer to the appellant’s brief. Can anyone answer to that which he has not even seen? I suppose not.”
1.8 The Reply Brief.
A reply brief should not be used to strengthen or repeat the arguments already canvassed in the appellant’s brief nor should it be a reiteration of the said arguments. Where there are no new issues raised in the respondent’s brief, a reply brief is otiose.
At the Supreme Court, the appellant may file and serve the reply brief, within four weeks after the service of the respondent’s brief on him. Except for good and sufficient cause shown, a reply brief shall be filed and served at least three days before the hearing date.
At the Court of Appeal, the prescribed period for filing and service is within fourteen days of the service of the respondent’s brief.
As the name implies, a reply brief should reply to the arguments contained in the respondent’s brief. If the respondent’s brief has joined issues with the appellant’s brief, the appellant need not repeat the issues already joined either by emphasis or by expatiation.
It follows therefore that an appellant cannot file a reply brief before he is served with the respondent’s brief. In the case of Sodipo v Ogidan, Ogunbiyi J.C.A (as he then was), held thus: “I would wish to point out however that the appellant’s reply brief was filed before the respondent’s brief of argument.
Same cannot therefore be a response to; in anticipation of that which was not in existence. Regard cannot in the circumstance be had to the reply brief.”
A reply brief must not introduce new issues for determination. It cannot be independent of the main brief. The point was aptly explained by Niki Tobi J.C.A (as he then was) in the case of Essien V. C.O.P, held thus:
“If a reply brief contains issue or issues for determination then it has acquired an independent character. It is no more a reply brief but something else. In the instant case, the so called reply brief as indicated above, contains two distinct and different issues not canvassed in the appellant’s brief. I do not think I will make use of it.”
Where an appellant fails to file a reply brief within the time specified under the rules, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.46 In the case of Okoye v Nig. Const and Furniture Co. Ltd, 47where the appellants failed to file a reply to dispute the contention of the respondent on a new issue, the Supreme Court held that the appellants are deemed to have conceded that point.
Supplementary Brief
There is also the supplementary brief which, as its name implies, is filed in addition or supplementary to the main brief of appellant or respondent. In Oduye v. Nigeria Airways Limited,48 a case involving statutory tenancy and mesne profits, the appellant filed a supplementary brief in order to invite the Supreme Court to depart from, review and overrule its earlier decision pursuant to the provisions of Order 6 Rule 9 of the Supreme Court Rules, 1985. In State v. Aibangbee & Anor.,49 the Accused/Appellants in a murder case filed a supplementary brief.
However, a supplementary brief can only be filed with the leave of the Court. In Din v. Attorney-General of the Federation, both parties in the case were permitted to file supplementary briefs because the Supreme Court suo motu raised two fresh issues at the close of addresses by Counsel, and thereafter decided to hear further addresses from Counsel on the issues so raised.
But in Okpala & Anor v. Ibeme & Ors., a bread and butter case involving land, the Supreme Court frowned on the practice of filing a supplementary brief without leave of Court on the ground that the Rules of Court did not provide for the filing of such a brief. Nnaemeka-Agu, J.S.C., (as he then was) delivering the lead judgment of the Court, cautioned about the matter in this way:
“Quite apart from the fact that there does not appear to be any authority for filing any supplementary brief …., there is no provision in the rules for filing a supplementary brief without leave of the Court.”
1.10 Brief by an Amicus Curiae
This is a brief filed on an occasion when the Court grants permission for the filing of a brief amicus curiae by a person who is not a party to the case, but accepted as a friend of the Court. The purpose of such a brief is to assist the Court in deciding legal questions of national or public interest and importance.
It should be observed that the usual mode of securing the services of an amicus curiae is by invitation issued by the Court requesting court appearance. Thus, in Attorney-General of Ogun State v. Alhaja Aberuagba, Bello J.S.C., (as he then was) observed:
“As the appeal raised very important constitutional issues concerning the Federal and State’s taxing powers, we invited all the Attorneys-General in the Federation as amici curiae to file briefs of argument on the issues and to appear for oral argument at the hearing. The Attorney-General of the Federation and the Attorneys- General of ten States responded to the invitation … In parenthesis, I should like to express my appreciation for the assistance given to the Court by learned counsel for the parties and learned amici curiae.”
Similarly, in Garuba Abioye & 4 Ors v. Sa’Adu Yakubu & 5 Ors,53 the Honourable Chief Justice of Nigeria invited the Attorney-General of the Federation, all the Attorneys-General of the States as well as five Senior Advocates of Nigeria namely: Chief F.R.A. Williams, Kehinde Sofola Esq., the writer P. O. Balonwu and Alhaji Abdulai Ibrahim, to submit briefs of argument and also appear at the Supreme Court on 21st May 1991 to present oral argument.
While the learned Attorneys responded to the invitation either personally or through their subordinate officers; all the five Senior Advocates personally responded to the invitation. It should be observed that the question presented in that appeal was one of national importance in that it involved the rights of customary owners of land vis-à-vis the position of customary tenants of land used for agricultural purposes as envisaged under the provisions of the Land Use Act, 1978.
After hearing arguments from all the twenty-seven counsel in the appeal, the Supreme Court held that the rights of customary owners of land were not affected by the provisions of the Land Use Act whether the land was used for agricultural purposes or not.
On the other hand, similar invitations issued by the Supreme Court to the Attorneys-General of Anambra and Rivers State in the case of Peenok Investments Ltd. v. Hotel Presidential Ltd., were not honoured by the learned gentlemen.
The Learned Justice of the Supreme C Court, Irikefe J.S.C. (as he then was), condemned both states in these words: “When this appeal came before us, we invited the Attorneys –General of both Anambra and Rivers State to come before us and address the Court as amici-curiae. Neither State honoured the invitation of Court. While the Rivers State Government maintained studied silence, the Anambra State sent a reply indicating that its Attorney–General was out of the country on State duties while the Legal Adviser who had been dealing with case was bereaved.
The utter nonchalance exhibited by these two States over this matter cannot, in my view be too strongly condemned.”
However, the very recent decision of the Supreme Court in Savannah Bank of Nigeria Ltd. & Anor v. Ajilo & Anor, is authority for the proposition that an amicus curiae may appear and argue before the Court on his own application.
Format of a Good Brief
The precise form for appellate briefs varies from one appellate court to the other, but there are more similarities than differences. The format of the brief is usually set out in. the appellate court’s rules. The rules generally require that appellate briefs should include the following parts:
(i) The Court in which the appeal is to be argued;
(ii) The Appeal Number;
(iii) The Parties to the appeal;
(iv) The title of the Brief (i.e. appellant’s,
respondent, reply brief etc);
(v) A table of contents;
(vi) Preliminary Objection, if any;
(vii) Statement of Facts;
(viii) Issues For Determination;
(ix) (x) (xi) (xii)
The Argument;
Conclusion and Reasons;
List of Legal Authorities; and
Signature of Counsel and Addresses for service.
From the items highlighted above as the format for a good brief, I shall consider the items from (vii – xii) in this preceding paragraph. Items i-vi are equally important. Concerning item (vi), which is on preliminary objections, it has already been treated under the discussion in the respondent’s brief of argument.
1.12 Statement of Facts.
The factual statement should be completely accurate and properly supported by the cold printed evidence in the case. Vital facts must be stated even if they do not support one’s case. However, it is usually possible to match such unfavourable facts with other facts which may help to temper the situation in one’s favour. It should be emphasized, as pointed by Oputa JSC (as he then was) in Engineering Enterprise of Niger Contractor Co. of Nigeria v. Attorney- General of Kaduna State, that unless Counsel maintain a balanced position in his statement of favourable and unfavourable facts by scrupulously presenting the facts without undue bias and/or embellishment: “the integrity of his brief will have been seriously compromised and the effectiveness of the brief will suffer as the Court may then approach the brief with a degree of skepticism or even disbelief.”
1.13 Issues for determination
The rules of court provide that the appellate brief shall contain what are in the appellant’s view, the issues arising in the appeal. This makes it mandatory for the appellant to formulate issues for determination in his brief of argument. The rules do not make it mandatory for the respondent to formulate issues for determination in the appeal. The rationale for this liberal approach in relation to the respondent was explained in the case of Hope Democratic Party v Peter Obi59 thus: “Although by the provision of Rule 7 of the Court of Appeal Practice Directions No. 2 of 2007, a respondent is required to file his brief of argument, however, there is no mandatory provision that he sets out issues for determination therein. This is because the respondent is at liberty to adopt the issues articulated by the appellant.”
The rules however do not preclude the respondent from articulating their own views as to in fact formulate what they consider as the real issues for determination in the appeal.
The cardinal rule is that the Court is not bound to accept and determine the appeal based on the issues as formulated by the parties. The Court has the power to either adopt the issues as framed by the parties or to reframe the issues in their entirety, provided they relate to the grounds of appeal. This position has long been settled by a line of cases such as: Akpa v The State,60 Sha v Kwan;61 Labiyi v Anretiola, and Hope Democratic Party v Peter Obi. The major challenge in the formulation of issues for determination is how to identify the issues arising for determination in the appeal. The focal question is “what really is an issue for determination?”
In the case of Chukwudili Ugo v. Amamchukwu Obiekwe,64 the Court maintained that:
“An issue for the purpose of an appeal, must be such a proposition of law or fact, so cogent, weighty and compelling that a decision on it, in favour of a party to the appeal, will entitle him to the verdict of the Court.”
The cardinal principle in the formulating of issues for determination is that the issues must arise and be based on the grounds of appeal. They should not be framed in the abstract but in concrete terms arising from and related to the grounds of appeal filed which represent the questions in controversy in the particular appeal.
The issues for determination help to expatiate, expand or edify the grounds of appeal. They act as a mirror to reflect the grounds of appeal.
For practical purposes, one of the guiding principles to be followed while formulating issues for determination is that a number of grounds of appeal should where appropriate, be formulated into a single congruous issue. When the grounds of appeal have been properly condensed into fewer issues then the argument of an appeal by reference to and along the lines of the issues formulated is trim, neat and concise in its treatment of the questions raised in the appeal.
It is pertinent to posit at this point that, an issue for determination which is not supported by any ground of appeal is incompetent. In Baridam v State,66 Iguh J.S.C. bluntly made the point that: “It is trite law that an appellate Court can only hear and decide on issues raised in the grounds of appeal filed before it and that an issue which is not covered by the grounds of appeal must be struck out as incompetent.”
It is therefore submitted that, where any ground of appeal is not reflected in the issues formulated by the parties, the ground of appeal is deemed to have been abandoned as was held by the Court in Odutola v Kayode.
In the formulation of the issues for determination, although the rules of court do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that the issue as formulated should be tied to the ground or grounds of appeal. This practice will assist the appellate Court tremendously in relating the arguments on the issue to the grounds of appeal they cover, thus saving the time of the Court and enhancing quick disposal of the appeal.
However since the practice is not mandatory under our rules, the failure to specifically state the ground(s) of appeal from which the issue is formulated will not be fatal to the appeal. In Yusuf v Kode,
Tabai J.C.A. (as he then was) explained the position that: “Ideally the ground or grounds of appeals from which an issue is formulated ought to be specifically stated. I do not think however that the failure so to state is such a defect that warrants striking out or discountenancing the issue and the arguments based thereon. The defect is more as to form than any substance.”
The usual practice is that where the counsel fails to specifically tie the issues to the grounds of appeal, the Court will suo motu identify the relevant ground(s) and tie them to the issues for determination. The Supreme Court restated the position in the case of Araka v Ejeagwu,69 that:
“the practice whereby counsel would specify to which ground or grounds of appeal issues relate is to be encouraged…Be that as it may, it cannot be overemphasised that the approach which best
satisfies the demand of justice is for an appellate Court to consider the issue argued on an appeal as long as they relate to a ground or grounds properly filed.”
In the framing of issues for determination, learned counsel must avoid any form of verbosity. An issue for determination is a concise and precise statement of the complaint of the appellant raised in the grounds of appeal. The issue raised must not be argumentative. Whatever argument is intended to prop an issue should be canvassed in the appropriate part of the brief of argument.
The issues formulated for determination should be the main and subsidiary issues which are cogent, weighty and substantial enough to influence a decision in the appeal in favour of a party raising such issues. Certainly, it is inadvisable to frame an issue for determination in respect of every conceivable slip contained in the judgment appealed against, since otherwise, there will be far too many issues arising in the appeal. Thus in Ugo v. Obiekwe & Anor,
Nnaemeka–Agu, J.S.C. (as he then was), delivering the unanimous judgment of the Supreme Court advised: “Apart from the fact that a multiplicity of issues tends to reduce most of them (i.e. the issues) to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips.
Unless the issues arising in the appeal are clear-cut or fall within a narrow compass, the attitude of the Courts is against the practice of respondents adopting almost on a routine basis appellants’ formulation of issues arising in the appeals. Thus, in Standard Consolidation Dredging and Construction Company Ltd. & Anor v. Katonecrest Nigeria Ltd., the Court of Appeal queried the respondent who filed a brief in which he accepted the appellants’ formulation of the issues arising in the appeal hook, line and sinker.
Similarly, in Fasoro & Anor v. Beyioku & Ors., the Supreme Court frowned on the manner in which the respondents dealt with the appellants’ formulation of the lone issue arising in the appeal. Specifically, the respondents’ comment in their brief on the issue duly framed by the appellants in their brief ran thus: “The issues that the appellants want the Supreme Court to determine have been set out in their brief of argument.” It is therefore desirable for the respondent to formulate his own issues arising in the appeal rather than adopt unquestioningly the issues for determination framed by the appellant. It must be borne in mind that the respondent must formulate his issues for determination with reference to the grounds of appeal filed by the appellant; and any issues for determination framed by him outside the grounds of appeal are misconceived and incompetent. It is different if there is a cross-appeal or respondent’s notice to vary or affirm the judgment on other grounds, when the respondent must nevertheless base his formulation of issues for determination on his grounds of cross-appeal or respondent’s notice.
In the argument of the issues for determination, counsel may argue each issue seriatim or he may argue some issues together. The approach to be adopted by counsel may be determined by the peculiarities of the issues formulated. It may be advisable to take similar issues together in argument. Sometimes, the solitary approach may make the argument more pungent and piercing. Suffice to say that any issue which is not argued in the brief is deemed to have been abandoned. According to Niki Tobi J.C.A (as he then was) in Onuguluchi v Ndu, “It is one procedure to formulate an issue and it is another procedure to argue it. An issue, which is not argued, goes to no issue, as the Court will regard it as abandoned.” This aspect of the task requires a succinct, forceful and logical argument based on the issues for determination and containing the conclusions on these issues, fully supported by the relevant legal authorities. It should be emphasized that the appeal is substantially argued on the issues dealt with in the argument in the brief, and not on the grounds of appeal from which the issues are, so to speak, distilled. It therefore behoves the writers to present in the brief an argument which is at once concise, forceful, persuasive and convincing.
1.14 Conclusion and Reasons
Most of the rules of appellate courts require that the brief should include a conclusion.
The conclusion is normally a short and perfunctory section where counsel states precisely the relief that is sought and the reasons why the relief should be granted. The provision of Order 6, rule 5 (5) (b) of the Supreme Court Rules (As Amended 2014) states that:
“All briefs shall be concluded with a numbered summary of the reasons upon which the argument is founded”
Furthermore, Order 19, Rule 3 (4) of the Court of Appeal Rules, 2021 provides that
“All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded”.
From the foregoing, it is apparent that the requirements regarding the concluding part of the brief is more demanding at the Court of Appeal than at the Supreme Court.
This is because whereas a brief filed at the Court of Appeal must be concluded with both a numbered summary of the points to be raised as well as the reasons upon which the argument is founded, a Supreme Court brief shall be concluded only with a numbered summary of the reasons upon which the argument is founded. The conclusion portion of the brief usually consists of a sentence or two specifying the relief that the appeal be allowed or the request that the judgment be affirmed.
List of Legal Authorities.
There are provisions under the rules of Court which require the parties to incorporate in their briefs, where possible or necessary the particulars of the law reports, law books, legal journals and other relevant statutory instruments.
Under the Supreme Court Rules Order 6, rule 7 specifically provides that at least one week before the date of hearing, a party who has filed a brief shall forward to the Registrar of the Court, a list of the law reports, textbooks and other authorities which counsel intend to cite at the hearing of the appeal. However, such a list need not be forwarded to the Registrar if the party has included the list in his brief of argument.
This provision underscores the significant advantage of inserting a list of legal authorities in the brief of argument.
Signature of Counsel and Addresses for service.
A brief of Argument should as a matter of fact be prepared and signed by a Legal Practitioner. In Okonkwo v U.B.A.Plc,76 Rhodes – Vivour J.S.C (as he then was) frowned at the practice of counsel arguing a brief prepared and signed by a layman. In his words:
“In this appeal, the Notice of Appeal and the appellant’s brief were both signed by Mr. I. Okonkwo, a Company Director and a layman. The signature of Mr. I. Okonkwo on both documents implies that the documents were prepared by him. I must remind Mr. J.O.N. Ikeyi who appeared for the appellants that court business is very serious business. It is unheard of for counsel to argue a brief prepared by a layman. If this is allowed, cranks, professional litigants and those with only a nodding acquaintance with the law will prepare briefs for argument before this Court.”
A brief of argument should also contain the addresses for service, this is a sine qua non for all court processes.
The purpose of inserting the address for service is to enable the bailiff effect service of the brief on the other party. The purpose of all types of service of processes is to give notice to the other party of the case against him. It is settled law that where notice of proceedings is required to be given, failure to give such notice is a fundamental error which renders such proceedings void because the court has no jurisdiction to entertain it.
Importance and Dominance Of Briefs In Appeal Proceedings
As has been seen, the purpose of the requirement of brief writing is two-fold; to obviate the former tedious and time-consuming practice of reliance on oral submission before the appellate courts; and to enhance the speedy hearing of appeals. That is why the Court of Appeal and the Supreme Court have always attached importance to the filing of briefs punctually, that is, within the times prescribed by the relevant Rules of Court or such extended times allowed by the Courts. For as Obaseki J. S.C (as he then was) warned in Ogbu & Ors v. Urum & Anor,
“The filing of briefs is an important innovation in our rules of court. Its dominance in appeal proceedings cannot be over-emphasised.”
Failure To File Briefs
Under the relevant Rules of both Supreme Court and the Court of Appeal, if an appellant fails to file his brief of argument punctually, he runs the fairly obvious risk of having the appeal dismissed for want of prosecution.
The decisions of the Supreme Court in support of this point are legion.
On the other hand, a respondent who fails to file his brief will not be heard in oral argument except with the leave of court.
It should be noted that drastic dismissal of the appeal for failure of the appellant to file brief which used to be dismissal on the merits or beyond recall; has since been mellowed by Order 6 Rule 9 of the Supreme Court (As Amended 2014) which provides instead for striking out of the appeal, presumably with liberty to restore or relist on application.
No Dismissal of Appeal, Where Appellant’s Brief Punctually Filed
It used to be the view that it was good law to dismiss an appeal where the brief filed by the appellant was of poor quality or faulty in form and contents; or unimpressive in presentation; for example, in not formulating or properly formulating the issues arising in the appeal. In Archbode Engineering Ltd. v. Water Resources Hydro Technique Wasser Technic A. G. & Anor.81 the Court of Appeal unanimously dismissed the appeal for want of prosecution on the ground that the brief filed by the appellant was faulty; and he was thereby in default of filing a valid brief of argument.
Again in Gaamstac Eng. Ltd. & Anor. v. Federal Capital Development Authority,82 the appeal was dismissed for want of prosecution on the ground that the appellant’s brief formulated issues for determination which were not tied to any grounds filed in the appeal. However, with the greatest respect, the decision of the Court of Appeal in Archbode Engineering supra case as well as in Gaamstac Engineering supra does not now represent the law. This is because of the judgment of the Supreme Court in Obiora v. Osele,83 in which the Court of last resort was of the firm view that the decision of the Court of Appeal in Archbode Engineering case supra had been implicitly overruled by its earlier pronouncements in Ekpan & Anor v. Uyo & Ors.84 7 and Engineering Enterprise of Niger Contractor Co. of Nigeria v. Attorney – General of Kaduna State.
In Obiora v. Osele, supra, the Supreme Court expressly held that once a brief is filed, it constitutes the appellant’s or the respondent’ argument in the appeal; and nowhere in the Court of Appeal Rules is any provision made for striking out the appellant’s argument in the appeal no matter how inelegantly drafted and presented.
It is thus clear that once Counsel for the appellant has files a brief of argument on behalf of his client, he has done his duty.
Accordingly, there can be no warrant for holding that a brief has not been filed or that there can be dismissal of the appeal for want of prosecution. In short, a brief is a brief no matter how poor or faulty. For, in the characteristically graphic words of Oputa, JSC (as he then was) in Obiora v. Osele,
“A bad, faulty and/or inelegant brief will surely attract some adverse comments from the Courts but it will be stretching the matter too far to regard such defective brief as no brief. A faulty brief is a brief which is faulty. One cannot close one’s eyes to the fact of its existence.”
1.20 The Number of Pages of A Brief at the Appellate Court
Under the relevant rules of the Court of Appeal a brief of arguments to be filed should not exceed 35 pages.87 Where a brief of argument exceeds the required number of pages, it is at the discretion of the Court to decide on what to do with such a brief. However, the Court of Appeal Rules has provided for what should happen to a brief that exceeds 35 pages. By the Rules, a brief of argument that exceeds 35 pages can only not be accepted for filing. It is a duty of the Registry to refuse to accept such a process. In a practical situation, the Court of Appeal Registry usually accepts such defective briefs.
When a brief that exceeds 35 pages is accepted by the Registry, what now becomes of such a brief? Where Counsel writes a brief that exceeds 35 pages, who is to be blamed? The Counsel or the Litigant? Where at the point of adopting the Brief of Argument where both Counsel are in Court, the opposing Counsel fails to raise any objection on the number of pages, who is to be blamed? By his silence has the opposing Counsel not acquiesced? There is no gainsaying the fact that no one is perfect and that even the very best do make mistakes. That is why the Courts sometimes overlook infractions of the rules especially where to insist otherwise would lead to a failure to consider a case on the merits.
Indeed, the Court despises to visit the sins of Counsel on the litigant. The views of the Supreme Court in Akinpelu vs. Adegbore, is quite instructive on this. The Court, per Tobi JSC held thus: “It is the law that mistakes of counsel cannot be visited on the client. The client is a novice in the law. Counsel is the expert and the only duty of the client is making available to counsel the evidence and the payment of the professional fees. Once he does that, he cannot be made responsible for any mistakes in law”.
I make bold to say that, the failure to comply with the Court of Appeal Rules is an irregularity. It is axiomatic that the provisions bestows on this Court, the discretionary power to treat wide spectra of failures to conform to the Rules as an irregularity. See the decided cases of Dingyadi v. INEC (NO. 1), Ukachukwu v. PDP;91 Michael v. BON.
At the Supreme Court, there is no provision in the Supreme Court Rules (As Amended 2014) for the minimum number of pages in the Rules. However, the Practice Direction of the Supreme Court 2021 has limited the number of pages for a Brief of Argument filed at the Court to 40 pages.
Brief Filed in Court of Appeal Cannot Be Adopted/Used in the Supreme Court.
There is just no provision in the Rules of Court for the adoption and use in the Supreme Court of a brief of argument filed in the Court of Appeal. The reason for the absence of such provision is not far to seek. For whereas, a brief filed in the Court of Appeal is based on the proceedings of a Court below, for example, the High Court, Sharia Court of Appeal or Customary Court of Appeal; a brief filed in the Supreme Court relates to the appeal decided by the Court of Appeal.
Consequently, such adopted brief will be rejected as not raising any issue for determination. But, there may be no objection where the brief filed in the Supreme Court embodies or lifts the argument or submissions contained in the brief filed in the Court of Appeal, providing that the latter deals with the judgment of the lower court. The propositions of law stated above are derived from the decision of the Supreme Court in Adeyemi & 3 Ors. v. State, where, Olatawura J.S.C (as he then was), delivering the lead judgment, stated the legal position as follows: “The learned counsel for the 4th appellant …has introduced a procedure unknown to the Rules of the Supreme Court by adopting the brief filed and used in the Court below and to rely on it. There is no provision for that in our Rules.
A separate brief is filed in the Court of Appeal and the Supreme Court. Brief filed in the Court of Appeal is based on the case presented in the High Court. The brief filed in this Court is in respect of the appeal argued and decided by the Court of Appeal. It is permissible, where applicable, to make the same submissions made before the lower court.
This will be embodied in the brief filed in the Supreme Court. Not only are we going to read a brief not relevant to matters before us, but also to pronounce on an issue already decided upon by the lower court and which is not made an issue in this court.”
Conclusion
In the course of this paper, I have attempted to discuss the Brief Writing at the Appellate Court. As can be seen through some of the decided cases cited in this paper, there are a lot of pitfalls in brief writing as a lot of lawyers are not well grounded in brief writing. It is therefore imperative that lawyers study the rules of Court meticulously before preparing their briefs of argument.
The Learned Justice, Hon. Justice P. A. Akhihiero Judge, Justice of the Customary Court of Appeal 94 posited that; lawyers should master the record to be completely abreast with the facts.
Counsel should source for good precedent briefs from more seasoned legal practitioners.
Many learned counsel have produced and filed excellent appellate briefs in many celebrated cases.
All that a serious counsel can do is to read some of such excellent briefs and use them as precedents. However, they must be careful not to adopt such briefs wholesale but they should intelligently modify and adapt same to suit their case.
In this paper,
I have traced the origin of brief writing in our appellate court system in Nigeria and the rationale for its introduction. The purpose of brief writing and types of brief writing has been treated in this paper including the format and requirement of good brief. I have submitted in this paper that a brief filed in Court of Appeal cannot be adopted/used in the Supreme Court. 
I hope I have attempted to do justice to this topic. We should not be oblivious of the fact that, there are other elaborate works on this subject matter. Since the topic itself is on brief writing, I have also tried to be very concise on the subject matter. I am in deed grateful for being presented this opportunity to treat the subject matter at hand.
