Written By Late Dr. Mudiaga Odje, S.A.N., O. F.R.

  1. INTRODUCTION

1.        GENESIS OF THE MATTER: ENGLISH OR                 AMERICAN CONNECTION

It is trite that while brief writing is not part of, or indeed popular  with,  English practice and procedure; writing of briefs and other legal  memoranda for the Courts in the United States of America ranks,  alongside other writings generally, as almost a national obsession.  So,   lawyers over there not only lodge appellate briefs of argument; but also  submit to Courts of first instance and tribunals for consideration,  advocacy documents or processes variously described as trial briefs, trial  memoranda, memoranda of law or trial blueprints.1

  • COMPARISON OF THE NIGERIAN SYSTEM OF BRIEF WRITING       WITH ENGLISH PRACTICE AND PROCEDURE

In the consolidated appeals in Yonwuren  v. Moden Signs (Nig.  Ltd; Nwaora & Anor. v Nwakonobi & Ors. and Daniel Onokpite & Anor  v. Ememoh & Anor., 2 decided by a full Court of seven Justices, the Supreme Court held that it lacked jurisdiction to restore the appeals it had

__________________________________________________________________________________________

  1. See generally the following American works on the subject
    • Edward D. Re, Brief Writing And Oral Argument, 6th (1987) pp. 25 – 50;
    • Peck G., Writing Persuasive Briefs (1984) Chap. 9, pp. 157 – 172;
    • Statsky W.P. and Wornet R.J., Jr., Case Analysis And Fundamentals and Legal Writing, 3rd (1589)  pp. 75 – 80;
  • Brand N. and White J.O., Legal Writing; The Strategy of Persuasion (1988) Chap. four, pp. 61-87.      (e)   Bornstein A.O., Appellate Advocacy  in Nutshell  (1984) Chap. 7, pp. 189 – 237.

(f)  Smith B. B., The Literate Lawyer: Legal Writing and Oral Advocacy (1986) Chap. Vi pp. 93 –        148.

  1. (1985) 1 FWLR (pt.2) 244; (1985) 2 S.C.86. earlier dismissed for want of prosecution due to the failure of the  appellants to file briefs of argument.  And specifically on the topic under  consideration, Obaseki J.S.C., after comparing the provisions relating to  brief filing under the Supreme Court Rules of 1977 with the position in  England as well as the procedure by way of petition followed in respect  of appeals in the Judicial Committee of the Privy Council remarked:  “It is however to be observed that there is no provision  in the English Rules similar in terms to the provisions of Order 9 Rule 7 (i.e. provisions governing dismissal of appeal for failure of appellant to file brief of argument) …  Even in the Judicial Committee Rules 1957, Rule 37 makes provisions for an appellant whose appeal has been dismissed for non-prosecution to present a petition to Her Majesty – in- Council praying that the appeal be restored.  We have no such provision in our rules because of the fact that the appeal can be decided on the briefs filed without an oral hearing.1

3. BRIEF WRITING IN COURT OF APPEAL AND SUPREME COURT  AMERICAN CONCERT AND CONNECTION 

From the foregoing discussion and comparative outline, it is clear  that the current practice and procedure of brief writing in the Court of  Appeal and the Supreme Court of Nigeria reached Nigeria from Uncle  Sam’s country, the United States of America; and not from Britain, nor  indeed, through English law, practice and procedure in respect of which,  we are somewhat grateful inheritors and rather enterprising adapters.

4.       RATIONALE FOR THE ADOPTION OF BRIEF WRITING IN         NIGERIA  

Before the introduction of the requirement of Brief writing in  ________________________________________________________________

  1. At p. 269 F and P. 109 respectively.

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 urged 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 2, 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.

5.       POSITION OF BRIEF WRITING IN NIGERIA NOT DIFFERENT  FROM THAT IN THE UNITED STATES

Similarly, in the United States, which may be regarded as the  mother country of the concept of brief writing: oral argument held the  field as the central focus in the determination of appeals right till the mid fifties.  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 Professor  Robert Martineau, an American Professor of Law.  According to him:

“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  [1]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.”

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.”[2]

B.      BRIEF HISTORY OF BRIEF WRITING IN NIGERIA

1.         SUPREME COURT OF NIGERIA   

Brief writing in Nigeria has a history of close on two decades.  As far as the Supreme Court is concerned, it all started on 1st September, 1977 as a result of the Supreme Court Rules 1977[3]  which were made by the Supreme Court of Nigeria and, rather strangely, signed by the Chief Justice and the seven Justices of the Court at the time.  But although the 1977 Rules came into force on 1st September 1977, they were inapplicable to pending appeals in the Supreme

Court.  Such appeals continued to be dealt with in accordance with the 1961 Rules 4 of the Supreme Court made by the Supreme Court on 10th May, 1972, but signed only by the Chief Justice at the time, Chief Justice T. O. Elias.  In 1979, no doubt to ensure speedy hearing of appeals to the Court from decisions in elections held in that year, the Supreme Court amended its Rules.[4] And as has been alluded, the new rule empowered the Supreme Court to accelerate the hearing of appeals in exceptional circumstances and in the   interest of justice by waiving compliance with its Rules relating to the preparation and filing of briefs.

After being in use for nearly eight years, the Supreme Court Rules 19773 were revoked and replaced by the Supreme Court Rules 19851 with minor amendment effected by means of Practice Direction later in that year.2  It should be noted that the 1985 Rules of the Supreme Court were amended in 1991 by the Supreme Court (Amendment) Rules 1991 with effect from 1st October,

1991.3

2.       COURT OF APPEAL

The initial introduction of brief  writing in the Court of Appeal was by means of the purely temporary practice Direction 4  issued by the President of Court, requiring the filing of briefs in respect of appeals lodged in the Court under section 130 of the Electoral Act1982 relating to election petitions arising from the general elections held in 1983.

Clearly, this temporary requirement of brief writing left much to be desired.  For instance, the appellant was required to file his brief with his notice and grounds of appeal, while the respondent had two days within which to file his brief.  It should be observed that the appellant had fourteen days within which to appeal either to the Court of Appeal or the Supreme Court under section 132 of the Electoral Act No. 8 of 1982.  Furthermore, it must be stressed that under the same section of the 1982 Act, both appellate Courts were required to give their decisions not later than seven days from the date on which the appeals are filed.  But as will be recalled, this section 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  ________________________________________________________________________________________

  1. I. of 1985
  2. I. 18 of 1985, providing that time for filing of briefs shall not run during the period of vacation  declared                              between July and September each year.
  3. I. of 1991 Published as Government Notice No. III in Federal Gazette No. 23 Vol. 78 pp. 283-285.

See also (1991) 6 NWLR (pt. 197) pp. vii – xi and (pts, 198 – 200) at pp. vi – x of each page.

  1. I. 40 of 1983 –  Practice Direction No. 1 of 1983.

an interference by the legislature in the judicial functions of the Courts.5

The introduction of brief writing on a permanent basis in respect of appeals before the Court of Appeal took effect on 1st September, 1984 by virtue of the Court of Appeal (Amendment) Rules 1984.6

It is worthy of note that although the Rules came into force on 1st September, 1984, they are not applicable to appeals which had been listed for hearing on or before 31st December 1984.  The significance of this note is manifest by the fact that the Court of Appeal had erroneously in a couple of cases nevertheless ordered briefs to be filed in respect of appeals listed for hearing before 31st December, 1984, contrary to the mandatory provisions of Order 6 Rule 1 (2) of the Court of Appeal (Amendment) Rules.  And more significant still were the facts that the Court of Appeal did dismiss one appeal for the apparent default on the part of the appellant to file a brief ordered by the Court in contravention of the Court of Appeal (Amendment) Rules;1 while it also dismissed yet another appeal, clearly excepted from the filing of briefs, on the ground that the brief filed by the appellant as a result of the invalid order of the Court to that effect was not up to standard.2

  1. BRIEFS IN THE COURT OF APPEAL AND THE SUPREME COURT

(1)     Basic Similarity Between Applicable Rules of Courts

There is a basic similarity between the Rules governing the preparation and filing of briefs in appeals before the Court of Appeal and the Supreme Court.  The word ‘brief’ is defined somewhat identically in both Order 6 Rule 2 of the Court of Appeal (Amendment) Rules 1984 and Order 6 Rule 5 (1) of the Supreme Court (Amendment) Rules 1991 as:

“being a succinct statement of … argument in the appeal.”

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  1. See: Unongo v Aper Aku & 2 Ors. (1983) 11 SC. 129; (1983) 2 SCNLR 332                           Kadiya  v Lar & 2 Ors,. (1983) 11 SC. 209; (1983) SCNLR 368.

Ibeh v. Nzenwa & Ors. (1983) 11 SC. 295.

  1. I. 26 of 1984
  2. Olaore & Ors. v. Oke (1987) 4 NWLR (pt.67) 769 at p. 775 F;  (1987) 12 SC. 1 at p. 12  (1987) 11 – 12 SCNJ 64 at p. 69.
  3. Obiora V Osele (1989) 1 NWLR (pt. 97) 279 at pp. 296 F and 304 F.

(1989) 1 SCNJ 213 at pp. 226 at 234.

The Rules applicable in both Courts in respect of brief writing are designed with a view to presenting in advance to the Courts the cases to be argued by the parties at the hearing of the appeals, in order to expedite the determination of the issues in controversy between the parties.  Thus, the Rules limit oral argument on each side to one hour, unless a request for additional time is granted by the Courts.[5]

Again, as will be apparent later, the Rules applicable in appeals before both Courts provide some sanctions and consequences for failure of the parties to file their briefs punctually according to the Rules or within such times as allowed by the Courts.

(2)     Differences Between Applicable Rules of Courts

There are however few differences between the rules governing the preparation and the filing of briefs in the appeals before both appellate courts.  Understandably, Order 6 of the Supreme Court Rules 1985(formerly

Order 9 of the 1977 Rules) is more detailed than its court of Appeal counterpart.  For example, Order 6 Rules 2 to 4 of the Supreme Court Rules 1985, amended by S. I. of 1991, Supreme Court (Amendment) Rules 1991, effective 1/10/91, provide for the filing of briefs in respect of applications for leave to appeal or enlargement of time within which to appeal or seek leave to appeal, quite unlike Order 6 of the Court of Appeal (Amendment) Rules 1984 and the Court of Appeal Rules 1981 which contain no provisions for the filing of briefs in respect of such applications.  It should be noted here that judging from experience at the Court, the Supreme Court is consistent in its attitude not to accede to applications governed by the provisions of Order 6 Rules 2 and 3 (i.e. application for leave and/or enlargement of time to appeal or to seek leave to appeal) unless they are supported by briefs, inter alia.

But be it noted the Supreme Court has emphatically held in the appeal  Onuoha v Ibero [6]  that it would not entertain briefs filed in respect of applications not specially required to be supported by briefs of argument.

On the other hand, the Court of Appeal in Okoroafor & Anor v. The Miscellaneous Offences Tribunal & Anor.[7] is inclined to the view that a brief of argument filed in respect of an important issue, such as the interpretation of a statute, is quite in order notwithstanding the absence of a rule of Court specifically providing for the filing of such a brief.  The Court distinguished the Supreme Court decision in Onuoha v Ibero as one that dealt  with a mere motion in contradistinction to the important issue involved in Okoroafor’s case;2 whereupon, Pats-Acholonu JCA, who delivered the Leading Ruling, observed graphically inter-alia:

“By reducing the argument in a form of brief, all the shades of the issues in controversy are well marshalled out and the Court is enabled to make a critical appraisal or analysis as presented. I am not of the view that because the applicants chose to reduce the arguments to brief writing to aid oral argument, the application should be thrown overboard, for brief writing aids counsel in his oral argument.”[8]

Again, while Order 6 Rule 3(d) of the Court of Appeal (Amendment) Rules 1984 prescribes that a brief shall be concluded with both  a numbered summary of the points to be raised and the reasons upon which the argument is founded: order 6 Rule 9(5) (b) of the Supreme Court Rules 1985 provides that the briefs shall be concluded with only a numbered summary of the reasons upon which the argument is founded.

It is emphasized that unlike the Court of Appeal (Amendment) Rules

1984; Order 6 Rule 3 of the 1985 Supreme Court Rules empowers the Supreme Court to appraise and consider the brief filed in support of the application in Chambers, without hearing oral argument either in open court or in chambers.

Similarly, while Order 6 Rule 9 of the supreme Court Rules 1985 makes provision for the inclusion in a brief of any invitation addressed to the Court urging it to department from and overrule its own decision; Order 6 of the Court of Appeal (Amendment) Rules 1984 is quite blank and silent on the point.

Further, the periods of time allowed for the filing of brief of argument are more ample in appeals before the Supreme Court than those prescribed in appeals before the Court of Appeal.  Thus, while the lengths of time for filing briefs in appeals before the Supreme Court are 10 weeks, 8 weeks and 4 weeks for the Appellant’s brief,  Respondent’s brief and Appellant’s reply brief respectively; [9] the periods of time allowed in appeals before the Court of appeal are 60 days, 45 days and 14 days respectively for the types of briefs mentioned above.[10]  It should be added that the times prescribed for the filing of the appellant’s brief as stated above do not run unless and until the record of appeal is correctly compiled to the satisfaction of the parties.[11]

Another significant difference introduced by the Supreme Court (Amendment) Rules 1991 with effect from 1st October, 1991 is the liability of the parties to pay a penalty of N5.00 each day they are in default with respect to filing of their briefs of argument.[12]

Finally, until fairly recently, and unlike the Supreme Court Rules, the Court of Appeal had no rules excluding from computation of time the period declared for the vacation of the Court.  However, as regards the 1988 legal year, the President of the court by Practice Direction No. 1 of 1988 duly declared the period between 15th July and 31st August 1988 as the vacation period during which, time did not run with respect to the filing of briefs of  argument and  applications for leave to appeal.5

Perhaps, it should be added here that Practice Direction No. 1 of 1988 was made as a result of the problem raised in Appeal No. SC.213/87:  Nneji & Ors v. Chukwu &. Ors.1 in which Counsel for the appellants failed to file their brief punctually because of his erroneous belief that the time for filing briefs in appeals before the Court of Appeal did not run during the long vacation.

(3)                 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. State1 where, Olatawura J.S.C., 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 

__________________________________________________________________________________________ 5. Government Notice No. 288 Federal Republic of Nigeria Official Gazette No. 46 Volume 75 14th July   1988, p.783.  See also (1988) 4 NWLR (pt. 87) 256.

  1. (1991) 1 NWLR (pt. 170) 676 at p. 695. (1991) 2 SCNJ 60 at p. 72.

See also:  Dada & 3 Ors. V. Otunba Ogunsanya & Anor.

(1992)  3NWLR 754 at p. 769 E.

(1992) 4  SCNJ 162 at p. 173.

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.1” 

See also ADEHI v. ATEGA & 39 Ors 1995 NWLR (pt. 398, 656 at 665 at par. E.

Having thus disposed of the introductory, comparative and basic aspects of the matter, it is now proposed to move on to a consideration of the meaning, purpose and types of briefs as well as their content (anatomy), preparation and writing.

C       DEFINITION, PURPOSE AND TYPES 1.   DEFINITION

It will be recalled that in the course of the comparative analysis of the relevant Rules of both the Supreme Court and the Court of Appeal undertaken in paragraph 3 on page 5 of this paper, it was pointed out that order 6 Rule 5 (1)(a) of the Supreme Court (Amendment) Rules 1991 and Order 6 Rule 2 of the Court of Appeal (Amendment) Rules 1984 have defined a brief in identical words as:

A succinct statement of the argument in the appeal.

Thus, the operative words in the statutory definition underlined above are succinct statement, that is, a statement which synonymously speaking, is brief, short, concise and terse.

(i) Yet Appellate Briefs Are Often Lengthy Documents Both In The United  States And Here In Nigeria

It should be stated that, notwithstanding the definition given above, appellate briefs on which the fate of appeals hang are often lengthy documents.

One result of this state of affairs is that laymen in the United States of America sometimes describe an appellate lawyer as —–

A person who writes a 10,000 – word document and still calls    it a ‘brief’.[13]

And here at home some Nigerian appellate lawyers have not been less enterprising in this regard than their American colleagues.  For example, only fairly recently, to be exact in December 1992, the Supreme Court frowned on the bulkiness of the brief of argument filed by the learned senior counsel for the Appellant in the case of Universal Vulcanizing (Nig.) Ltd.  v. Ijesha United Trading & Transport Co. Ltd. & 6 Ors.[14]  There, the brief in question was a 70 page foolscap size typed document described by the Supreme Court as being more of a treatise than a brief.

And commenting on the extraordinary length of the brief and its infliction on the Court, Uche Omo J.S.C., remarked in his lead judgment in the appeal —

“The document … is most certainly not succinct.  It is lengthy, otiose and not surprisingly repetitive.  This Court will continue to insist that counsel should comply with the rules of Court.  It is to be hoped that this Court will not be inflicted in the future with the tiresome task of wading through such a document.[15]

2.       Justice Philip Nnaemeka – Agu’s Definition in His Book “Manual Of  Brief Writing In The Court Of Appeal And The Supreme Court of  Nigeria, 2nd Edition (1991)”[16]

In his book1 mentioned above, now enjoying its second edition,

Nnaemeka-Agu J.S.C. agreed with the Definition of an appellate brief judicially given in the American case of Duncan V. Kohler, 37 Minn. 379.  By that definition, a brief is —

“a considered statement of the proposition of law or fact or both, which a party or his counsel wishes to establish at the appeal

together with reasons and authorities which can sustain them.”4

3.       Definition for our purpose        

By a process of selective combination and composition, we may define a  brief for our purpose, which is an appellate brief, as follows:

A concise written argument based on the grounds of appeal presented to an appellate court with the objective of persuading that court to reverse, affirm or vary the decision of the lower court.  

(4)     Documents not Ranking as Briefs

On the basis of our definition as well as the other definitions discussed above, mere written submissions containing no arguments on the grounds of appeal filed, but which merely state that —

“The grounds of appeal, it is submitted, are detailed and elaborate

and are hereby incorporated as part of this Brief of argument;”[17]

AND

“It is my humble opinion that no issue for determination arise in this appeal as the finding and conclusions of the learned trial Judge cannot be faulted in law and fact.”[18]

do not qualify as briefs.

Nor can a document be legitimately described as a brief which merely collates the claim, the statement of defence and notice of appeal, and then concludes with a series of assumed answer,3  or which fails to frame any issue arising in the appeal;[19] as in the case of Ntita V. The State referred to above.

2.       PURPOSE OF BRIEF 

The whole purpose of a brief is to inform, elucidate and persuade.  In other words, the appellate court should, through the medium of the argument in the brief, be clearly informed and be fully seised of the facts, issues and points of law involved in the case; and be skillfully persuaded of the merits of the case being advocated therein.

In this connection, it is fitting to set out the apt words of Lord Byron in Don Juan Canto X (1788 – 1824), quoted with approval by Kolawole J. C. A. in his lead judgment in Nwadiaro & 2 Ors v. Shell Petroleum Development Company of Nigeria Limited,[20] where he remarked:

“As Lord Byron said in Don Juan Canto X (1788 – 1824) –   ‘The  Lawyer’s brief is like the surgeon’s knife, dissecting   the whole inside of a question, and with it all the processes    of digestion”5 3. TYPES OF BRIEFS

(1)      Appellant’s ,Respondent’s, Reply (Appellant’s) Inclusive)  

The normal types of briefs are the appellant’s brief, the  respondent’s brief in response, usually filed later (though curiously not  always so}; 6  and the appellant’s reply filed to counter issues or points  raised in the respondent’s brief, and which were not canvassed in the  appellant’s original brief.

However, where there is a cross- appeal, a party is permitted to file an  inclusive brief clearly stating that it is filed in respect of both the appeal  and the cross-appeal.1

(2)     Supplementary

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,2  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.,3 the  Accused/Appellants in a murder case filed a supplementary brief.

__________________________________________________________________________________________ 6 As in Amaefule & Anor v. State (1988) 2 NWLR (pt. 75) 156 at p. 174 D where the Respondent  apparently filed its brief before receiving the Appellant’s brief of argument! Also reported (1988) 4  SCNJ 69 at p. 84.

See also AKU V. ANYAEBE & 2 ORS 1995 5 NWLR Pt. 397, 631 at 637 par. G – P.

  1. Order 6 Rule 7, Court of Appeal (Amendment) Rules 1984

Order 6 Rule 6(2), Supreme Court Rules 1985.  See also LOUIS Onian & 2 Ors. v Chief J.I. G. Onyia  (1989) 1 NWLR (pt.99) 514 at p. 541 A – B. Ogbechie &  Ors v. Onichie & Ors. (1988) 1 NWLR  (pt.70) 370 at p. 402 E – G; (2988) 2 SCNJ (pt. 1) 170 at pp. 202 – 203;

Adefulu & 12 Ors v. Oyesile & Ors (1989) 5 NWLR (pt. 122) at p.418; (1989) 12 SCNJ 44 AT P. 80.

  1. (1987) 2 NWLR (pt. 55) 126 at p. 154 – 155; (1987) 4 SC. 202; (1987) 4 SCNJ 40.
  2. (1988) 3 NWLR (pt. 84) 548 at p. 570 G;   (1988) 7 SCNJ (pt. 1) 128 at p. 145.

However, a supplementary brief can only be filed with the leave of  the Court.  In Din v. Attorney-General of the Federation, 4 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., 5 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., 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.”6

 (3)    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,1 Bello J.S.C., (as he then was) observed:

_______________________________________________________________

  1. (1988) 4 NWLR (pt. 87) 147 at p. 168 – 189;              (1988) 9 SCNJ 14 at p. 30.
  2. (1989) 2 NWLR (pt. 102) 208
  3. At p. 220 B – C.
  4. (1985) 2 NWLR (pt. 3) at p. 409 C – D

 “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.”[21] 

Similarly, in Appeal No. SC. 169/87: Garuba Abioye & 4 Ors v.  Sa’Adu Yakubu & 5 Ors[22] the Honourable Chief Justice of Nigeria invited  the Attorney-General of the Federation, all the Attorneys-General of the  States is 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.[23]  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 Act2  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.,5  were not honoured    by the learned gentlemen.  Whereupon, 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.”1

However, the very recent decision of the Supreme Court in Savannah  Bank of Nigeria Ltd. & Anor v. Ajilo & Anor.2 is authority for the  proposition that an imicus curiae may appear and argue before the Court  on his own application.

D.      BRIEF FORMAT AND REQUIREMENTS 1. RELEVANT RULES, JUDICIAL PRONOUNCEMENTS AND  JURISTIC WRITING 

Brief writing is an art to be acquired and mastered in the light of  the relevant rules of Court, judicial pronouncements and juristic  contributions on the subject.

(1)  Relevant Rules of Court

It is important for the brief writer to note at the outset that both the   Court of Appeal and the Supreme Court have relevant rules not only  prescribing the format and contents of a brief; but also imposing  requirements as to the succinctness or conciseness in the matter as well as  to citation of legal authorities.  The relevant provisions in this connection

  1. (1982) 12 S.C. 1.,
  2. At p. 24.
  3. (1989) 1 NWLR (pt. 97) 305 at p. 322 B.

(1989) 1 SCNJ at p. 178 are Order 6 Rules 2 to 5 of the Court of Appeal (Amendment) Rules 1984

and Order 6 Rules 5 to 7 of the Supreme Court Rules, 1985.

(2) Judicial Pronouncements and Juristic Works

It is also important in this matter to pay heed to the authoritative  pronouncements made by the courts concerning the correct format and  other requirements of briefs and to consider the views expressed by jurists  in their works on brief writing.

At this juncture, respectful mention should be made of the Honourable

Justice Nnaemeka Agu’s treatise titled ‘Brief Writing in the court of  Appeal and the Supreme Court of Nigeria’.  His Lordship’s book is so  illuminating and helpful that it has received the grateful  acknowledgement of both the Court of Appeal and the Supreme Court.

Thus, in Archbode Engineering Ltd. v. Water Resources Hydro  Technique Waserlechnik A.G. [24] Adenekan Ademola J.C.A., delivering the  lead judgment of the Court of Appeal, relied on the learned Justice’s work  (even in its then unpublished form) in laying down what the format and  contents of a brief should be.

Similarly, in Engineering Enterprises of Niger Construction Co. of  Nigeria v Attorney-General of Kaduna State, [25] Eso J. S. C. described the  learned justice’ treatise as an excellent book on the subject of brief  writing.[26]  However, it should be observed that the learned justice of the  Supreme Court was wide ranging in his references, and so listed ten  appeals before the supreme court in respect of which counsel had filed  excellent briefs.  The judgments of the court in these appeals which were  listed as unreported[27]   have since been reported and are set out hereunder: —

(i)      Akpapuna v Nzeka II [28]    (ii)     Shodeinde v Registered Trustees of Ahmadiya Movement in                   Islam[29]

(iii)      Bronik Motors Ltd. v. Wema Bank Ltd.[30][31] (iv)       Unongo v. Aper Aku       (v)   Oloyo v Alegbe [32]   (vi)    Transbridge C. Ltd. v Survey International Ltd. [33] 710

  • Akinsanya U. B. A. Ltd.
  • Attorney-General of Bendel State U. B. A. Ltd. [34]
  • Emenimaya & Ors. v. Okorji [35]

(x)        Oduye v. Nigeria Airways Ltd. [36]

Incidentally, it may be mentioned that among the briefs commended in the ten appeals listed above, two of them were the respondents’ briefs prepared by the writer in the two cases of Akpapuna v. Nzeka II supra and Unongo v. Aper Aku supra.

Perhaps another appeal in which the Supreme took the trouble to set out the format and contents of a good brief was Adimora v. Ajufo & 2 Ors. [37]  In that case, Oputa J. S.C., delivering the Lead Judgment of the Court, also referred to the earlier decision of the Court in Engineering Enterprise of Niger Contractors v. Attorney General of Kaduna State [38] in which he advised

Counsel settling brief to remember the A.B.C. of all legal writings, to wit, ACCURACY, BREVITY AND CLARITY – wise counsel given to practicing lawyers by an American Chief Judge cum Professor of law in his book.[39]

2.     FORMAT AND REQUIREMENTS OF A GOOD BRIEF

By way of rationalization of the relevant rules of the court governing brief  writing as well as the judicial pronouncements and juristic writing bearing  on the matter, it may be stated that the format and contents of a good brief  of argument should include the following features, that is to say — (a)          Introduction or background facts;

  • Decision of the lower court;
  • Issues for Determination;
  • Legal Arguments;
  • Conclusion and Reasons, and          (f)      List of Legal Authorities
  1. 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.  warned in Ogbu & Ors v.

       Urum & Anor.1

  “The filing of briefs is an important innovation in our      rules of court.  Its dominance in appeal proceedings

            cannot be over-emphasised. ……”2

4.       FAILURE TO FILE BRIEFS    Dismissal for Want of Prosecution & Bar to Oral Argument now Striking  out Order under Supreme Court (Amendment) Rules, 1991

Under the relevant Rules of both Courts, 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. 3  The decisions of the Supreme  Court in support of this point are legion.4

  1. (1981) 4 S.C. 1; (1981) 1 All NLR (pt. 11) 240.
  2. At p. 7 and p. 245 respectively.
  3. Order 6 Rule 10, Court of Appeal (Amendment) Rules, 1984 . Order 6 Rules 3 (2) and 9, Supreme Court Rules, 1985.
  4. See for instance: Ogbu’s case supra; Orobator v Amata (1981) 5 S. C. 276              Chief T. O. S. Benson v Nigerian Agip Oil Company Ltd (1982) 5 S. C. 1.

Omoregie v. Emovon (1982) 6 S.C.  6.

Balarable Musa v Ramza & Ors. (1982)  7 S.C. 118.

Yonwuren v. Modern Signs (Nig.) Ltd.,

Emomoh v Onikpite

Nwaora v Nwakonobi (1985) 1 NWLR (pt. 2) 244 ;    (1985) 2 S.C. 86

Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (pt. 45)  892.  (1986) 12 S.C. 246                 Oyeyipo & Anor. v. Oyinloye (1987) 1 NWLR  (pt. 50) 256.  (1987) 2 S.C. 148.

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.[40][41]  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  (Amendment) Rules 1991 which provides instead for striking out of the  appeal, presumably with liberty to restore or relist on application.

  1. NO DISMISSAL OF APPEAL, WHERE APPELLANT’S BRIEF

          PUNCTUALLY FILED 

Until fairly recently, 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.  Thus, in Archbode Engineering Ltd. v. Water Resources  Hydro Technique Wasser Technic A. G. & Anor.[42] 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.[43]  Again in Gaamstac Eng. Ltd.  & Anor. v. Federal Capital Development Authority, [44] 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.[45]

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  very recent judgment

of the Supreme Court in Obiora v. Osele6  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.7  and Engineering Enterprise of Niger Contractor Co. of Nigeria v. Attorney – General of Kaduna State.8  In Obiora  v. Osele5 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 filed 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

  1. S.C. in Obiora v. Osele:1

“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.”2

E.    PRACTICAL HINTS ON BRIEF WRITING

It is now proposed to give some practical hints on brief writing.

These hints relate to the following aspects of the subject, viz:-

  1. Front Cover.
  2. Reference to Record of Appeal

______________________________________________________________________________________  6.           (1989) 1 NWLR (pt. 97) 279; (1989) 1 SCNJ 213.

  1. (1986) 3 NWLR (pt. 26) 63; (1986) 5 S.C. 1.
  2. (1987) 2 NWLR (pt. 57) 381; (1987) 5 S.C. 27.
  3. (1989) 1 NWLR (pt. 97) 279; (1989) 1 SCNJ 213.
  4. At p. 300G and p. 230 respectively.
  5. Preliminary Objection, if any;
  6. Statement of Facts;
  7. Formulation of Issues Arising in the Appeal;
  8. Arrangement and Exposition of Points in Argument;
  9. Conclusion and Reasons;
  10. Neatness, Legibility and Accuracy of Brief and
  11. Mastery of Brief Writing.

These aspects of brief writing will be concisely dealt with one by  one; or in the abbreviated language of pleadings, seriatim.

1.    Front Cover

It is recommended that as far as possible both covers of the brief  should be bound in a simple form.  The front cover of the brief should  serve at once as a title page and general index of the work.  It should of  course be headed in the cause or appeal; should indicate clearly the party  filing the brief, the name and address of the Counsel submitting it as well  as the  date of the brief.

Thus arranged, the first cover and the index serve as a table of  contents, provide a ready summary of the entire brief, and furnish the  open sesame designed to persuade the court as to the merits of even the  most difficult case.

 2.      References to Record of Appeal

As far as possible, every page of the brief dealing with the facts of  the case should refer to the pages and lines of the Record of Appeal  where the stated facts or matters are to be found.  The advantage of such  ‘page and line’ references to the Record of Appeal is that it assists the  Court to locate quickly and early the facts referred to, and so enable it to  understand  more readily the case being advocated in the brief.

3.       Preliminary Objection, if any

It is permissible for a preliminary objection to be raised in the brief  of argument instead of doing so by filing of a separate notice or  application.  This  is because it is not the form of notice of the  preliminary  objection that matters; but the fact that notice of such  objection has been  given to the  opponent within a reasonable and  appropriate time.1

4.       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 in Engineering  Enterprise of Niger Contractor Co. of Nigeria v. Attorney-General of  Kaduna State,2 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.”3

Brief Not to be Prepared  by Counsel if too personally involved   Or is a Party to Litigation

It is advisable that Counsel should not prepare a brief in respect of  a case in which he is too personally involved or where he is indeed a  party to the action.  The reason for this advice is that such a Counsel is  bound to lose his objectivity and detachment in the conduct of the case.   In one of the cases between Fred Egbe and Honourable Justice  Adefarasin of blessed memory, Oputa J.S.C. observed:

______________________________________________________________________________________

  1. Ajide Kelani (1985) 3 NWLR (pt. 12) 248 at pp. 257 –   258;                         (1985) 11 S.C. 124 at pp. 137 – 138.

Dilibe & Ors V. Nwakozor (1986) 5 NWLR (pt. 41) 315 at p. 320 C-G.

Uwa Printer Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (pt. 92) 110 at p. 119 F-G;   (1988) 12 SCNJ       (pt. 1) 102 at pp. 109 – 110.  NWLR (pt. 56) at p. 337 G – F.

  1. (1987) 2 NWLR (pt. 57) 38; (1987) 5 S.C. 27.
  2. At p. 413 and pp. 95 – 96 respectively

“In this case, the Appellant, a very eminent Counsel,  undertook   to conduct his case himself.  He who descends  into the arena of conflict cannot avoid the dust of the  encounter.  …  In his Introduction, the Appellant in his  brief  alluded to certain facts which do not form part of  this case either as pleaded or as established by the  evidence  of the 9 witnesses who testified.”[46]

5.       Formulation of Issues Arising In The Appeal (1)    Meaning of Issues Arising in the Appeal

The issues arising in the appeal flow, as will be more fully shown,  from the reasons encompassing one or more grounds of appeal.[47]

In Standard Consolidated Dredging and Construction Company  Ltd. & Anor v. Katonecrest Nigeria Ltd.,[48]  Nnaemeka – Agu J.C.A. (as he  then was ) defined the term “issue arising for determination” by reference  to two English cases of Bowell v. Daring & Ors (1915) 1 K.B. 54 at p. 62  and Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 Q.B. 638 at  p. 642, and came to the conclusion that an issue arising for determination  is one that will result in a verdict in favour of the framer in the entire  appeal, if the issue framed by him is decided in his favour.  It should be  pointed out that His Lordship adopted the negative definition of the term  by quoting with approval Lord Diplock’s dictum in Fidelitas Shipping  Co. Ltd. v. V/O Exportchleb supra stating:

 “But while an issue may thus involve a dispute about facts,   a mere dispute about facts divorced from their legal  consequence s is not ‘an  issue.’

At this juncture, it should be added that His Lordship, since  elevated as a Justice of the Supreme Court, has confirmed his earlier  definition of the term ‘issue arising for determination’ in the later case of  Ugo v. Obiokwo  & Anor, [49] where he quoted his earlier definition and  judgment with  undoubted approval.[50]

(2)     Sequence of Issues in Relative Order of Importance in the Appeal

Unless preliminary matters of substance relating to procedure and  jurisdiction impinge on the landscape and dictate priority for  consideration, the issues arising for determination should be arranged in  relative order of importance, that is, from the most crucial to the most  casual in the entire appeal.  In this way, the Court is presented first with  the most important aspects of the case put forward in the brief of  argument.

( 3)    Issue to be Related to or Based on Grounds of Appeal

The issue arising in the appeal should be phrased in the form of  indirect questions, beginning usually with the word whether, and in such  a manner that the desired answer is somewhat obvious.  And it is of  crucial importance to ensure that the issues formulated as arising in the  appeal must be related to or based on the grounds of appeal properly  before the Court.  This because as Olatawura J.C.A. put the point in

Anukwua & Ors. v. Ohia & Ors:[51]

“It is the duty of Counsel when settling issues in a brief to  relate them to the grounds of appeal so that if an appeal is  allowed, it will be easy to know on which grounds the  appeal is allowed.”[52]

Stated in other words, and as emphasized by Karibi-White, J.S.C., in the  recent case of Olowosago & Ors v. Adebanjo & Ors.[53]

 “The issues for determination cannot and should not be at  large, but must fall within the purview of the grounds of    appeal filed.”[54]

Further and by way of more emphasis on this point, reference ought to  made to the figurative words employed by Nnaemeka – Agu, J.S.C., in his judgments in Idika & Ors v. Erisi & Ors. [55] and Atanda & Ors. v.  Ajani & Ors [56], where the learned Justice of the Supreme Court cautioned  that issues or questions for determination:

“do not arise in nubibus  – – – hanging in the skies.”6

And as a matter of fact, there is  a stern warning on this point  issued by Uwais, J. S. C, in his lead judgment in Latunde & Anor v.  Lajinfin,[57] where he likened the inclusion in a brief of issues not based on  grounds of appeal as “smuggling”; and then warned that such groundless  issues are to be a appropriately ignored by the Court as being irrelevant,  incompetent and valueless with respect to the appeal.  See IDISE V.  WILLIAMS INT. LTD. 1995 1 NWLR (pt. 370, 142 at 150 par. F;  ADEHI supra 666 par. E – F.

(4)      Main and Subsidiary Issues of Cogent and Substantial Import to be      Formulated

Formulation of Too many Issues to be Avoided

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., [58] Nnaemeka – Agu, J.S.C., 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.”1         

(5)     Respondent not to Adopt Blindly Appellant’s Formulation of Issues

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.,2 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.”3

Similarly, in Fasoro & Anor v. Beyioku & Ors.,4 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.”5

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

incompetent6  It is different if there is a cross-appeal or respondent’s notice to  __________________________________________________________________________________________ 1.   (1989) 1 NWLR (pt. 99) 566 at p. 580 G. (1909) 2 SCNJ 95 at p. 103.

  1. Bankole & 3 Ors v. Pelu & 3 Ors. (1991) 8 NWLR (pt. 211) 523 at p. 536 H.   (1991) 11 SCNJ  108 at p. 119.
  2. (1986) 5 NWLR (pt. 44) 791.
  3. At p. 799 F. cf. Akpan V. The State (1992) 6 NWLR (pt. 248) 439 at p. 459 B – D.
  4. (1988) 2 NWLR (pt. 76) 263; (1988) 4 SCNJ 23.
  5. At p. 276 B – C and p. 34 respectively
  6. See the cases cited on this page, footnotes 2 to 5.

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.7

  • Respondent not Formulating Issues Deemed to have Adopted Appellant’s Issues.

It should be understood that a respondent not formulating issues  for determination in his brief is deemed to have accepted the issues as  formulated by the appellant.8

  • Advantage of Respondent’s Formulation of Issues for Determination It is advantageous and helpful to the parties as well as the Court for  the respondent to frame his issues for determination differently from the  appellant’s formulation of the issues arising in the appeal.  In this  connection, the advantage and assistance derivable from the respondent’s  different presentation materialize where the appellant fails either to  formulate or formulates properly his issues for determination; in which  case, the Court may adopt the respondent’s formulation of the issues in  the determination of the appeal.

Thus, in a good number of cases, the Courts had ignored the  appellant’s faulty or improper formulation of issues arising for  determination, and had instead not only adopted the issues as presented  by the respondents; but determined the appeals on the issues arising  as  formulated by the respondents.  Some of the appeals concerned, to  mention a few, are —

  • Bolaji Bamgbose1
  • Engineering Enterprise of Niger Contractor Co. of Nigeria

Attorney – General of Kaduna State.2 _______________________________________________________________________

  1. See the authorities cited at page 13 footnote 1; and Idika & Ors Erisi & Ors (1988) 2 NWLR (pt.  78) 563 at p. 579 H.
  2. Layinka & 6 Ors Gegele (1993) 3 NWLR (pt. 283) 518 at p. 529 G. (1993) 3 SCNJ 39 at p. 48.
  3. (1966) 4 NWLR (pt. 37) 632 at p. 643 C – E
  4. (1987) 2 NWLR (pt. 57) 381 at 396 – 397 and  (1987) 5 S.C. 27 at p. 52, 97 – 98.

(c)      Alao v Akano3 (d) Adelumola v. State          (e)      Ebueku v. Amola5           (f) Famubo & Anor v. Adekunle & ors 6  (g)     Madagwa v. State7  4

(8)      COURT NOT BOUND TO ACCEPT ISSUES AS FORMULATED BY  COUNSEL AND MAY ITSELF IDENTIFY OR MODIFY THE SAME       IN THE INTEREST OF PROPER DETERMINATION OF THE  APPEAL

Both the Supreme Court and the Court of Appeal have let it be  known and have also decided that they are not bound to accept without  scrutiny the issues formulated by the parties as arising in the appeal.   Rather, the Courts possess the competence to identify or modify what in  their views are the real issues raised by the grounds of appeal so as to  facilitate proper determination and adjudication in the appeals before  them.8

6.       Arrangement and Exposition of Points in Argument

The importance of the argument section of the brief cannot be  over-emphasized: for, it is here that the Court must be persuaded of the  merits of the case, even if the Court could not unfortunately be convinced  of the entire case in the end.  Broadly speaking, the argument section of  the brief can only be persuasive and appear convincing, if it is properly  arranged and set out and also succinctly, forcefully and logically written  and composed.  Both aspects of the matter require a little enlargement.

(a)      Arrangement of points in Argument

As suggested in respect of the order of sequence in the  formulation of the issues arising in the appeal, unless other substantial  issues relating to procedure and jurisdiction impinge on the landscape

__________________________________________________________________________________________ 3.    (1988) 1 NWLR (pt. 71)  431 at p. 440 G.  (1988) 2 SCNJ  (pt. 11)  300 at p. 317

  1. (1988) 1 NWLR (pt. 73) 683 at p. 689 F. (1988) 3 SCNJ (pt. 1) 68 at p. 73. 5.               (1988)  2 NWLR (pt. 75) 128 at p. 139 G – H 6.         (1988) 2 NWLR (pt. 79) 723 at p. 729 C.
  2. (1988) 5 NWLR (pt. 92) 60 at p. 70 B – C. (1988) 12 SCNJ (pt. 1) 52 at p. 62.
  3. See; Titiloye & 4 Ors v Olupo & 4 Ors. (1991) 7 NWLR (pt. 205) 519 at p. 537 F – G.  (1991) 9 -10            SCNJ 122 at p. 140.

Lekwot & 6 Ors v  Judicial Tribunal on Civil and Communal Disturbances in Kaduna State & Anor.             (1993) 2 NWLR (pt. 276) 410 at p. 441 E – F.

and compel priority of attention, the points in argument in the brief should be arranged in relative order of strength.  This means that the argument should begin with the strongest point, and thereafter proceed  to the exposition of the other points in their descending order of  substance and importance.  Undoubtedly, the whole idea of beginning  the  argument with the strongest point first is based on the postulates that  the  first blow is half the battle.

Again, in order to facilitate the court’s analysis and comprehension  of the brief, it is strongly recommended to organize the argument in  headings and subheadings related to the formulation of the issues arising  for determination in the appeal.

(b)     Succinct, Forceful and Logical Argument of the Issues.

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:

7.       Conclusion and Reasons

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.

As regards the giving of reasons upon which the argument in the  brief is founded, there appears to be some divergence between Order 6  rule 3 (d) of the Court of Appeal (Amendment) Rules 1984 which  requires that:

“All briefs should be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.”

and Order 6 Rule 5 (5) (b) of the Supreme Court Rules 1985 which  provides simply that:

“All briefs shall be concluded with a numbered summary of the reasons upon which the argument is founded.”

From the foregoing, it is clear that while a brief filed in an appeal  before the Court of Appeal shall be concluded with both a number  summary of the points to be raised as well as the reasons upon which the  argument is raised’ a brief filed in an appeal before the Supreme Court  shall be concluded only with a numbered summary of the reasons upon  which the argument is founded.  So, the requirement in this regard at the  Court  of Appeal is obviously more demanding here than at the Supreme  and apex Court of Nigeria:

One final word which need be said on the concluding reasons of  the brief is that the reasons should, like the formulation of issues for  determination and the arrangement of points in argument, be set out in  the relative order of strength, substance and importance.

8.       Neatness, Legibility and Accuracy

In order that the brief of argument may elicit the attention, interest  and understanding of the courts, it should be neatly typed in legible  character and above all, accurately produced.  For one thing, neatness,  like cleanliness likened to Godliness, is a virtue.  For another, both the  Court of Appeal and the Supreme Court are manned and presided over by  justices who are afflicted by varying degrees of eye-strain and other  ocular problems resulting from their ages as well as the copious amount  of reading or perusal they have had to cope with in their judicial task.  It is confidently believed therefore that a neat and legible brief will be of immense assistance to their Lordships of both appellate courts.    On the question of the accuracy of the brief, the attention of the  reader is drawn to page 17 of this paper where reference is made to the  A.B.C, of all legal writings, that is, ACCURACY, BREVITY AND  CHARITY.  Nevertheless, attention must be drawn again to the accuracy  of the brief because of the absolute necessity of that quality in brief  writing.  Consequently, it cannot be too strongly recommended that the  brief should be proof-read and thoroughly checked before it is signed and  filed.  And the reasons for this is: although the brief writer may be one of  the infallible mortals the typist is certainly not:

 9.      Mastery of Brief Writing

Mastery of the art of brief writing depends on several factors, such as  adequate knowledge of not only the rules of court on the subject; but also  the facts of the case and the applicable law in the appeal.  In  addition,  the brief writer must possess the requisite degree of ability in legal  writing to ensure that the facts of the case are deftly marshaled and the  applicable law is persuasively presented in a concise, coherent and  convincing manner to the court.

There are two basic ways of acquiring mastery of the subject of  brief writing.  The first is by a perusal and understanding of the  applicable rules of court, coupled with a close study of legal works on the  subject as well as the briefs of argument prepared by experienced counsel  still actively practicing at the Court of Appeal and the Supreme Court of Nigeria.

And in order to assist in a practical way in this regard, the writer  has annexed to this paper as Annexure 1, 11 and 111 three selected types of briefs filed by him in appeals before the Court of Appeal and the Supreme Court from time to time.  Annexure 1 is the brief filed by the  writer as amicus curiae in Appeal No.SC. 169/87:  Abioye & 4 Ors v.

Yakubu& 5 Ors.1 already discussed at page 12 of this paper.

Annexure 11 is the respondents’ brief filed in Appeal No. SC.  217/86:  Uwa Printers (Nig.) Ltd. v. Investment Trust Co. Ltd.2  arising  from breach of contract; while Annexure 111 is the appellants’ brief in  Appeal No. CA/B/159/92: Ejenavi (Omorovie) & 8 Ors v. Chief

Oritsedere & 9 Ors.,3 relating to Chieftaincy and Declaration and  Traditional Ruler Title in Delta State of Nigeria.

The second way of acquiring mastery of the subject is by dint or  actual practice in, and exposure to, the writing of briefs in the normal  course of legal practice.

It is needless to say that of the two ways of achieving proficiency  in brief writing highlighted above, the second way, involving actual  practice in the writing of briefs, is to be preferred because as the old  tested sayings go: practice makes perfect; and an ounce of practice is  worth a pound of theory.  After all, did the great poet, Alexander Pope,  (1688 – 1744) not make the point nearly two and half centuries ago when  he wrote in his book, Essay on Criticism, that:

“True ease in writing comes from art, not chance, As those move easiest who have learned to dance.”

CONCLUSION

This paper starts with a general but brief examination of the  subject of brief writing as a result of which it was found that whereas  brief writing is not a feature of the English practice and procedure; brief   writing ranks as a national obsession in the United States where briefs are  presented as advocacy or rhetoric papers and documents before tribunals,

________________________________________________________________________________________ 1.        (1991) 5 NWLR (pt. 190) 130 – 256.              (1991) 6 SCNJ 69 – 155.

  1. (1988) 5 NWLR (pt. 92) (1988) 12 SCNJ (pt. 1) 102.
  2. As yet unreported.

trial courts as well as appellate courts.

The account then deals with the introduction in September 1977 of  the requirement of brief writing in respect of appeals before the Supreme Court by virtue of the Supreme Court Rules, 1977.  Here, the view is taken that the idea of brief writing reached the country through the  United States of America.

Of course, the requirement of brief writing in appeals before the  court of Appeal was also considered.  Mention was made of the  temporary basis on which brief writing was first introduced in that court  in 1983 to cope with the determination of appeals from decisions in  numerous election petitions arising from the general elections held that  year.  Also mentioned was the subsequent formal introduction of brief  writing in the Court that took place in September 1984 by virtue of the   Court of Appeal (Amendment) Rules 1984.

It was also observed that the current rules applicable in appeals  before the Supreme Court are partly the Supreme Court Rules 1985  which revoked and subsequently replaced the 1977 Rules of the Court;  and partly the Supreme Court (Amendment) Rules 1991, with effect from  1st October, 1991.  It was observed that although the Rules governing  brief writing applicable in the Court of Appeal are a replica of the  Supreme Court Rules, there are quite some differences between the Rules.

Yet there is agreement as to the purpose of the requirement of brief  writing in respect of appeals before both appellants courts – to save time  and costs involved in the former tedious and time-consuming practice of  unlimited oral argument of appeals; and so, expedite the hearing of  appeals substantially on written briefs of argument filed in court.

There is also included in the paper a discussion covering the several types of briefs, the significance and dominance of briefs in appeal proceedings, and the consequences of default in the filing of briefs.

The paper then ends with some practical hints on brief writing and refers to some of the briefs personally prepared by the writer in the  normal course of his legal practice, which are included as Annexures 1,  11 and 111.

Finally, the writer wishes to express his appreciation for the  opportunity given to him over the years to make his humble contribution  towards the success of these advanced courses organized by the Institute.   Indeed, the writer is firmly of the view that his papers on the subject have  the beneficial effect of keeping him abreast of the rules and practice  governing the art of brief writing, in the light of the relevant decisions of  both the Court of Appeal and the Supreme Court of Nigeria.

DR. MUDIAGA ODJE, S.A.N., O.F.R. died on Friday, December 9, 2005

[1] .            Martineau, R.J. Modern Appellate Practice; Federal and State.  Civil Appeals (1983) pp. 209 – 211.

[2] .            Justice Edward D. Re, Brief Writing and Oral Argument 6th Ed., 1987 p. 179.

[3] .            L. N. 48 of 1977. 4.             L. N. 96 of 1961.

[4] .            L. N. 18 of 1979  —  The Supreme Court (Amendment) Rules, 1979.

[5] .            Order 6 Rule 8 (3) Rules of the Supreme Court 1985 and

Order 6 Rule 9 © of the Court of Appeal (Amendment) Rules, 1984

[6] .            (1994) 1 NWLR (pt. 322) 503  at pp. 519 F and 523 F.

(1994)  1 SCNJ 44  at pp. 51, 56 – 57.

[7] .            (1995) 4  NWLR (pt. 387) 57.

[8] .            At p. 75D.

[9] .            Order 5 Rules 5 (1) (2) (3)  Supreme Court Rules, 1985.

[10] .          Order 6 Rules 2, 4 and 5 Court of Appeal (Amendment) Rules 1984.

[11] . Western Steel Workers Ltd. & Anor. V Iron and Steel Workers Union of Nigeria & Anor. (1986) 3  NWLR (pt. 30) 617 at p. 628 E;   (1986) 6 S.C.  35 at p. 53.

[12] .          Order 6 Rule 5(7) Supreme Court.  (Amendment) Rules, 1991.

 

[13] .            Statesky W. P. and Wernet R. J., Jr.; Case Analysis and Fundamentals of Legal Writing 3rd Ed. (1989)

  1. 279.

[14] .          (1992) 9 NWLR (pt. 266) 388.  (1992) 11-12 SCNJ (pt. 11) 243.

[15] .          At p. 397 B – C and p. 248 respectively.

[16] .          At p. 5.

[17] .          (1986 ) 3 NWLR (PT.31) 731 AT P. 740 a (1986) 6  S.C. 75 AT P. 86

[18] .          Ntita V. The State (1993) 3 NWLR (pt. 283) 505 at p. 512 A-B.   (1993) 3  SCNJ 28 at p. 32. 3.      Alao v. Akano (1988) 1 NWLR (pt. 71) 431 at p. 448 G;                                    (1988) 2 SCNJ (pt. 11) 300 at p. 317.

[19] .          Onifade v. Olayiwola & 6 Ors.  (1990) 7 NWLR  (pt. 161) 130 at pp. 157, 164, 166 and 175;

(1990) 11 SCNJ 10 at pp. 21, 26, 30 and 38.

[20] .           (1990) 5 NWLR (pt. 150) 322 at p. 334G.

[21] .          (1985) 4 S.C. (pt. 1) 288.

At p. 409 C-D and pp. 306 respectively.

[22] . The report of the case covers an entire part of the Nigerian Weekly Law Reports, to wit; (1991) 5  NWLR (pt. 190) 130 – 256.

See also (1991) 6 SCNJ 69 – 155.

[23] .          Cap. 202, Vol. 11, Laws of the Federation of Nigeria, 1990.

[24] .      (1985) 3 NWLR (pt. 12) 300 at p. 304 – 305

[25] .      (1987) 2 NWLR (pt. 57) 381; (1987) 5 S.C. 27;    (1987) 13.

[26] .      At p. 390, pp. 49 – 50 and p. 24 respectively.

[27] .       At p. 390: p. 49 – 50 and p. 24 respectively.

[28] .      (1983) 2 SCNLR 1; (1983) 6 S.C. 158.

[29] .      (1980) 1 & 2 S.C, 163.

[30] .      (1983) 1 SCNLR 296;  (1983) 6 S. C. 158.

[31] .      (1983) 2 SCNLR 332;  (1983) 11 S.C. 129.

[32] .      (1983) 2 SCNLR   35;  (1983) 7 S.C. 86.

[33] .          (1986) 4 NWLR (pt. 37) 576. 10.     (1986) 4 NWLR (.pt. 37) 547

[34] .      (1986) 4 NWLR (PT. 35) 273.

[35] .      (1987) 3 NWLR (pt. 59) 6;  (1987) 5 S. C. 35.

[36] .      (1987) 2 NWLR (pt. 55)  126; (1987) 4 S.C. 202.

[37] .      (1988) 3 NWLR (pt. 80) 1 at p. 7; (1988) 6 SCNJ 18 at p. 20.

[38] .      (1987) 2 NWLR (pt. 57) 381 at pp. 413 – 414;

(1987) 5  S.C. 27 at pp. 95 – 97;  (1987) 5 SCNJ 13 at pp. 40 – 41.

[39] .      Edward D. Re, Brief Writing and Oral Argument 6th Ed., (1987) p. 8

[40] .          Order 6 Rule 9 (d), Court of Appeal (Amendment) Rules, 1984.              Order 6 Rule 9 (1), Supreme Court Rules, 1985.

See also:   Management (Enterprises Ltd, & Anor v. Otusanya                 (1987) 2 NWLR (pt. 55) 179 at p. 194  D – F:   (1987) 4 S.C. 367 – 368.

Loc, cit. See also the following cases – Alhaji Ibrahim v. Alhaji Shagari (1983)  9 S.C. 59 at pp. 86 –

[41] .

(1983) 2 SCNLR  176 at p. 192.

Nwachukwu v. State (1986) 2 NWLR  (pt. 25) 765 at p. 772 A  – C; (1986) 4 S.C. 378 at p. 386.

[42] .          (1985) 3 NWLR (pt. 12) 300,

[43] .          At p. 305,

[44] .          (1988) 4 NWLR  (pt. 88) 296,

[45] .          At pp. 306 – 307

 

[46] .     Fred Egbe V. Hon. Justice J.A. Adefarasin (1987) 1 NWLR (pt. 47)  1 at p. 19E –F; (1987) 1 SC. 1 at p. 33.

[47] .    See for instance, two recent Supreme Court cases: Madagwa v. State   (1988) 5 NWLR (pt. 92) 60 at pp. 69            -70 (1988) 12 SCNJ (pt. 1) 52 at pp. 58 – 59.  Louis Oniah & Ors v. Chief J.I.G. Onyiah (1989) 1  NWLR (pt. 99) 514 at p. 527 C.

[48] .   (1986) 5 NWLR (pt. 44)  p. 791 at p. 799 A – E.

[49] .   (1989) 1 NWLR (pt. 99) 566; (1989) 2 SCNJ 95.

[50] .    At pp. 580 – 58 and p. 104 respectively.

[51] .          (1986) 5 NWLR (pt. 44) 150.

[52] .          (1936) 5 NWLR (pt. 44) 155 E.F. See also Western Steel Works Ltd. & Anor v. Iron & Steel Workers          Union of Nigeria & Anor.  (1987) 1 NWLR  (pt. 49) 283 at p. 304; (1987) 2 SC. 11 at p. 45; per Oputa,

J.S.C.

[53] .          (1988) 4 NWLR (pt. 78) 563.

[54] .          At p. 283.

[55] .          (1988) 2 NWLR (pt. 78) 563.

[56] .          (1989) 3 NWLR (pt. 111) 511 at pp. 543 – 4;  (1989) 6 SCNJ (pt. 11) 193 at p. 218

[57] .          (1989) 3 NWLR (pt. 108) 177 at p. 184; (1989) 5 SCNJ 59 at pp. 64-65.

[58] .          (1989) 1 NWLR (pt. 99) 566; (1989) 2 SCNJ 95.