Mrs. Umma Mohammed & Ors v. The Minister, Federal Ministry of Environment, Housing and Urban Development & Ors. [2018] 16 NWLR (Pt. 1644) 179 at 189 paras. D-E, per Ogakwu, JCA:

“The Appellants’ Further Brief of Argument was filed without any order of Court. In fact, a Further Brief is unknown to the Court of Appeal Rules, 2011. Order 18 of the Court of Appeal Rules, 2011 deals with the filing of Briefs of Argument. It provides for the filing of Appellant Brief, Respondent Brief and Reply Brief. The cognomen Appellants’ Further Brief of Argument is unknown to the adjectival law.”

Notes:

The Appellants were residents of the famous 1004 Estate flats at Victoria Island, Lagos who were aggrieved by the sale of the 1004 Estate flats by the Federal Government acting through the relevant agencies and offices (1^st – 4^th Respondents) to UPDC Plc and 1004 Estates Ltd (5^th and 6^th Respondents). The Appellants therefore instituted an action at the Federal High Court seeking an order of Mandamus to compel the Respondents to sell the flats to them. The trial Court held that since the sale of the property had been concluded, a Writ of Mandamus would no longer lie to compel that the already sold flats be sold to the Appellants without first seeking for an order of certiorari to quash what was done. The trial Court struck out the case. Dissatisfied, the Appellants appealed to the Court of Appeal which upheld the decision of the trial Court and dismissed the appeal.

Meanwhile, at the hearing of the appeal, the Court of Appeal had granted the Appellants leave to adduce further evidence, being an interim report of the Senate Committee on Housing and Urban Development, which investigated the sale of Federal Government Houses. The said interim report was not part of the materials on which the trial Court arrived at its decision as it was submitted to the Senate long after the Judgment of the trial Court was delivered and subsequent to the filing of the Notice of Appeal. Based on the interim report, the Appellants consequently filed what they titled, “Appellants’ Further Brief of Argument” raising issues for determination touching on the interim report of the Senate Committee.

The 1^st – 4^th Respondents in reaction, filed a notice of preliminary objection contending that the further issue for determination raised in the Appellants’ Further Brief of Argument did not arise from any of the Grounds of Appeal. They additionally filed Further Reply Brief to the Appellants’ Further Brief of Argument.

The Court of Appeal sustained the preliminary objection on the ground that issues for determination must derive from the grounds of appeal otherwise, such an issue would be redundant and must be discountenanced. The Court further held as quoted above regarding the fate of the court process titled, “Further Brief of Argument” and concluded that (p. 190 at paras. A-B):

“The Appellants’ Further Brief of Argument which is not known to law is null and void ab initio. It is not worth the ink and paper on which it was produced.”

Indeed, a “Further Brief of Argument” is unknown to the Court of Appeal Rules, 2011 and even the extant Court of Appeal Rules, 2018, Order 19 thereof.

Considering the new development as it relates to the interim report of the Senate Committee, the Appellants could have applied for leave to amend their already filed Brief of Argument. Since the Court of Appeal had earlier granted them leave to adduce further evidence (i.e. the interim report), the Court would be inclined to allow them amend their Brief of Argument. As Ogakwu, JCA hinted:

“It was open to the Appellants to apply to Court to amend their Appellants’ Brief to incorporate argument in respect of the further evidence, but as already stated they preferred to file a Further Brief which is unknown to law.”

In one breath, it might appear like the Court of Appeal was not at all interested in any form of legal innovation as introduced by the Appellants’ Counsel through the filing of the “Further Brief of Argument”. However, Ogakwu, JCA clarified the position thus (at p. 189, paras. G-H):

“The Law is alive. The law has a life. The law affects lives. The law grows. The law has growth. There is evolution in the law. But any innovations must take a bearing from the rules of procedure otherwise it will be dead on arrival.”

His Lordship relied on the statement of the law by Tobi, JSC (of blessed memory) in Mobil Producing (Nig.) Unltd v. Monokpo [2003] 18 NWLR (Pt. 852) 346 at 433, paras. C-D, in this regard.

The above case further emphasizes the fact that one can hardly be perfect with rules of procedure. The underlying lesson always is that whenever counsel is not sure about a particular procedural step, counsel should simply seek leave of court, ex abundanti cautela. The courts always find it ‘offensive’ when leave is not sought where leave is required. On the other hand, if leave is sought where leave is not required, it attracts no punishment as it is better to err on the side of surplusage.