➥ CASE SUMMARY OF:
Chief Emmanuel Nwude V. Federal Republic Of Nigeria & Ors. (CA/L/484/06(R) • 30 Apr 2015)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Preliminary objection in reply brief.
➥ CASE FACT/HISTORY
This ruling is predicated upon a motion on notice dated 12/2/15 filed on the same day by the 2nd and 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 and 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.
➥ ISSUE(S)
I. Can the Appellant at this stage of hearing the appeal re-open issues of joinder?
➥ RESOLUTION(S) OF ISSUES
[MOTION SUCCEEDS]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[COURT CANNOT REVISIT JUDGEMENT ALREADY GIVEN
‘Can the Appellant at this stage of hearing the appeal re-open issues of joinder? I think not. Can this court having ruled on the joinder and granted same revisit the issue with a view to either finding better reasons for doing so or reversing it? Again I say NO. The doctrine of functus officio will certainly work against the court. 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 lack potency to review, reopen 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.’
‘The 2nd-3rd Respondents were joined without any restrictions or qualifications, can they now be limited to areas they should address the court? I think not. The argument of the appellant that the primary responsibility of prosecution rests with the state is a valid statement but there is also no legal prohibition to having parties like the 2nd-3rd Respondents in whose favour an order of forfeiture was made from being joined in an appeal as Respondents. The essence of it all is to ensure that justice is done. 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. It cannot therefore be said that the 2nd-3rd Respondents do not have an interest sufficient enough to be heard after being joined as parties.’
NEW ISSUES/PRELIMINARY OBJECTION CANNOT BE RAISED 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. Furthermore, the issues formulated by the 2nd-3rd Respondents having arisen from the judgment grounds of appeal cannot be discountenanced because it satisfied the requirements of a Respondents brief. At this stage, the 2nd-3rd Respondents have equal status with the 1st Respondent and nothing can derogate from that. It is indeed the appellant who has gone outside the issues it formulated for determination in the Reply on points of law. Fundamentally, because the 2nd-3rd Respondents have no right of reply after a reply on points of law, no new issue can be allowed in a Reply on points of law. Such new issues or address must be discountenanced. The issue of allowing the 2nd-3rd Respondents to reply cannot arise. The argument that joining the 2nd-3rd Respondents created constitutional breaches and therefore they must be restricted to watching brief cannot be valid because there is no need for leave and order of court to watch brief. Being respondents they stand so with all the rights and privileges of that position. The appellant did not cite any constitutional provision that was breached to buttress his submission.’]
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✓ DECISION:
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➥ FURTHER DICTA:
⦿ ROLE OF RESPONDENT TO SUPPORT LOWER COURT DECISION
The Role of a Respondent in an appeal is settled by a number of decisions which is to support the judgment of the lower court, see Emeka v. Okadigbo and Ors (2012) LPELR-9338 (SC). — Y.B. Nimpar JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
