APPEAL – BRIEF OF ARGUMENT – Whether Court can grant leave to amend a brief of argument that has been struck out

“… at the Court below, the appellant filed an application on 26th November, 2012 wherein they prayed the Court for three reliefs, to wit: (1) Leave to amend their Notice of Appeal dated 8th September, 2010 to include additional ground of Appeal (2) An order deeming the amended Notice of Appeal as properly filed and served. (3) An order deeming the appellants’ brief of argument which contains arguments in respect of the additional grounds of appeal as properly filed and served. Curiously, when it was time to argue that application on 3rd December, 2012, Counsel for the applicants withdrew prayers 2 and 3. The Court below in granting the application ordered the appellants to file their amended Notice of Appeal and appellants’ brief within 7 days. They filed their amended notice of appeal within 7 days granted without the brief of argument. On 9th January, 2013 the Court below granted the appellants another 14 days to file further amended notice of appeal and the appellant’s brief of argument, yet they failed to file as ordered. Clearly, after the appellants withdrew their prayer 3 in their motion of 26th November, 2012 and had the deeming order struck out, they did not have any other process called ‘appellants’ brief of argument” for the Court to look at. They needed to file a fresh brief of argument but they failed. There is no way the Court would have granted them leave to file an amended appellant brief after striking out the same brief of argument. Amendment of Court process connotes a correction of a mistake thereto, or including in it something which was not originally there. It does not envisage putting something on nothing and expecting it to stand. See Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214: Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) 619. For the reasons I have stated above, I resolve the issue in this matter against the appellants. There was not in existence any appellant brief of argument after the Court’s ruling of 26th November, 2012, which could be amended.” Per OKORO, J.S.C. P. 12, Paras. B – C.

Where the grounds of appeal are based on mixed law and facts and the leave of either the Court of Appeal or the Supreme Court is not sought and granted the appeal is incompetent and neither the Court of Appeal nor the Supreme Court will have any jurisdiction to entertain the appeal. See: A & S. B. Co.(Nig) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501; Ekunola v. C.B.N. (2013) 15 NWLR (Pt. 1377) 224. Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand.  See: Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6; R-Benkay (Nig) Ltd v. Cadbury (Nig) Plc (2012) 9 NWLR (Pt. 1306) 596. As the Notice of Appeal sought to be amended was incompetent, no valid amendment could be effected even though issues of jurisdiction were raised in the proposed notice of appeal. See: Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445 at 474. Per AKA’AHS, J.S.C at P. 11, Para. B.


A notice of appeal is an initiating process by which a higher Court is invited to review the decision of a lower Court to determine whether on a proper consideration of the facts placed before the Court and the applicable law to the said facts, the lower Court arrived at a correct decision. Per ONNOGHEN, C.J.N. at P. 11, Para. F.

STATUTES – Where the law or rule prescribed the procedure to be taken in the performance of an act – If not complied with – Effect of

Where the law or rule prescribed the procedure to be taken in the performance of an act is not complied with, the performance of the act in the circumstance is a nullity. Section 233 (3) (a) provides that subject to the provisions of “Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” In other words, a party desiring to appeal the decision of the Court of Appeal to the Supreme Court on mixed law and facts or facts is required to obtain the leave of the Court of Appeal or the Supreme Court to file the notice and grounds of appeal. The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal. Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended. See Popoola vs. Adeyemo (1992) 8 NWLR (pt. 257) 1 SC, Abidoye vs Alawode (2001) 13 WRN 71 SC. The notice of appeal filed without the leave of the lower Court or this Court first sought and obtained is so incurably bad that in the eyes of the law, it does not exist. One cannot amend what in law does not exist. See Macfoy vs. UAC (1962) 153 wherein Denning (MR) said inter alia, “you cannot put something on nothing and expect it to stay there. It will collapse”. Per ONNOGHEN, C.J.N. at P. 12, Para. A.


PLEADINGS – BINDINGNESS ON PARTIES – When evidence is at variance with the averments in the pleadings – Effect of

“It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reason for this rigid rule of pleadings and of evidence has been clearly stated by this court in George and Ors. v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at p. 77 as follows:  “The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues: but the cardinal point is the avoidance of surprise.” Per A. FATAYI-WILLIAMS, J.S.C. at P. 4, Para. A.


1. CONTRACT – Covenants in restraint of trade – Enforceability of or otherwise at common law:

“The covenant, the particulars whereof are set out above is certainly in restraint of trade and is therefore governed by certain legal principles. Generally all covenants in restraint of trade are prima facie unenforceable in common law. They are enforceable only if they are reasonable with references to the interest of the parties concerned and of the public (See Esso Petroleum Company limited v. Harper’s Garage, (Stockport Ltd.) 1967 2 W.L.R. 871).” Per U. UDOMA, J.S.C. at P.5, Para. B.

2. CONTRACT – Master and Servant – Covenants in restraint of trade between – Reasonability Principle – View and attitude of Court thereof –

“We think we are right in stating that in relation of master and servant it is a well established principle of law that a covenant in restraint is viewed by the courts with the utmost jealousy. It is therefore the employer who seeks to enforce it against the servant to show that it is designed for the protection of some exceptional proprietary interest of the employer. If the covenant affords adequate protection to the covenantee, the requirement that it must be reasonable in the interest of the parties is satisfied as the court will not enquire into the adequacy of the consideration for the covenant. And depending on how the covenant is framed, an employer can lawfully prohibit the employee from setting up on his own, or accepting a position with one of the employer’s competitors, so as to be likely to destroy the employer’s trade connection by a misuse of his acquaintance with the employer’s customers or clients. (See Commercial Plastics Limited v. Vincent 1965 1 QB 623, 640). The general law relating to a breach of confidence prohibits ex-employees from using information which “can fairly be regarded as a separate part of the employees stock of knowledge which a man of ordinary honesty and intelligence would recognise to be the property of his old employer and not his own to do as he likes with.” (Printers and Finishers Limited v. Halloway (1965) 1 W.L.R. 1.5).” Per U. UDOMA, J.S.C. at P.6, Para. C.

3. CONTRACT – BREACH OF – Where a simple sum is agreed to be paid on the breach of a number of stipulations of varying importance – Whether construed as LIQUIDATED DAMAGES or PENALTY:

“We agree with Mr. Majekodunmi, learned counsel for the respondents; that Dunlop Pneumatic Tyre Company Limited v. New Garage Motor Company Limited (1915) A.C. 79 wherein most of the authorities dealing with the distinction between liquidated damages and penalty were reviewed by the House of Lords appear to have established principles which are relevant and applicable to the case on appeal. There it was held that where a simple sum is agreed to be paid as liquidated damages on the breach of a number of stipulations of varying importance, and the damage is the same in kind for every possible breach and is incapable of being precisely ascertained, the stipulated sum, provided it is a fair pre-estimate of the probable damage and not unconscionable, will be regarded as liquidated damages and not a penalty.” Per U. UDOMA, J.S.C. at P. 13, Para. A.


1. NATIVE LAW AND CUSTOM – Yoruba customary law – Whether laches and acquiescence affects children of a deceased person to succession

“It has been held that, under Yoruba customary law, laches and acquiescence cannot be a bar to the undoubted right of the children of a deceased person to succession. In this respect, we refer to the case of Taiwo & Anor vs. Taiwo & Anor (1958) 3 F.S.C. 80 at page 82 where Hurley, Ag. F.J., in delivering the judgment of this Court, said: “In the present case the rights of the parties depend on native law and custom, not on any dealings between individuals giving rise to private rights which the passage of time might have made more difficult to establish evidence relevant to the native law and custom governing the case is as available now as it was 14 years ago. In my view, the defendants’ inactivity, by itself and unaccompanied by any other circumstances which would make it fraud or unconscionable on their part to maintain whatever rights they may have to share in Rosannah’ s estate, has not relieved the plaintiffs from the burden of showing positively that the native law and custom in this matter is what they assert it to be. It still rests with the plaintiffs to show that native law entitled them to succeed to Rosannah’s share to the exclusion of Frederick’s children.” Per G. S. SOWEMIMO, J.S.C. at P. 6, Para. A.

2. NATIVE LAW AND CUSTOM – Whether children of the deceased can inherit him under Yoruba customary law

“It is settled Yoruba customary law, as we pointed out earlier, that when a deceased person dies leaving children surviving him, his or her children will inherit his property. Applying that customary law to this case, we hold that Okiti’s children and grandchildren as his descendants will inherit the farmland left by Okiti. This being the case, the President of the Grade ‘B’ Customary Court was right in granting the declaration of title to the plaintiff. In Adesoye & Others vs. S.F. Taiwo & Others 1 F.S.C. 84 Jibowu Ag. F.C.J., in delivering the judgment of the Federal Supreme Court said as follows: “It is quite clear that real properties of a deceased person who had children surviving go to his children, not to his uncles, aunts and cousins. There can, therefore, be no doubt that neither the Plaintiff nor the persons through whom they claim blood relationships with Chief D.C. Taiwo could inherit or take a share of the real property which, by native law and custom, belongs to children and descendants of the deceased.” Pp. 8-9, D-A.


1. AGENCY – Whether agent needs to be authorised in writing – Whether the principal on whose behalf the agent acts need not be disclosed.

“If a memorandum which contains the name of the party to be charged is written by someone, the fact of his name being written there will not avail as his signature unless there is evidence that the person who wrote the instrument had the authority of that party to do so.”  We think that this direction has only a dubious application to the facts of this case. First of all it should be realized that the agent need not be authorized in writing. See Heard v. Pilley (1869) L.R. 4 Ch. App. 548 (esp. per Selwyn L.J. at pp. 551, 552); and indeed the name and the identity of the principal on whose behalf the agent acts need not be disclosed. It is the duty of the court in all cases to study the memorandum referred to and then to draw the correct inferences from its contents.. In the case of Davies v. Sweet (1962) 2 Q.B. 300, Danckwerts L.J. (delivering the judgment of the Court of Appeal) observed concerning this same point as follows at pp. 305.”  But such an authority may be conferred upon an estate agent expressly or may be inferred from the circumstances of the case. It seems to me that authority to enter into a contract on behalf of the defendant should be inferred from the circumstances of this case. The way in which Phillips (the elder) dealt with the plaintiff suggests that he had authority to enter into a contract for the sale of the property and to fix the price, and the letters written by the defendant seem to me to confirm this position-” Per G. B. A. COKER, J.S.C. at P. 7, Para. C.

2. APPEAL – CONCURRENT FINDINGS – When court of Appeal can interfere with concurrent findings of facts by trial court:

According to him at the material time the defendant was out of town and he had no obligation otherwise than as her lawful agent to sign a receipt for her, and if one were to go by his evidence the measure of ignorance of the contract which he had ascribed to himself is sufficient to compel him to refuse to sign exhibit 1.  A court of appeal does not interfere with findings of fact by a court of trial unless there has been a misconception of the facts in evidence. See the observations of this Court in Y. A. Lawai v. Chief Yakubu Dawodu & anor. (1972 8/9 SC. 83 at pp. 115 et seqq.). Per G. B. A. COKER, J.S.C. at P. 8, Para. C.

3. DOCUMENTS – Interpretation of – Meaning of words be ascribed to them unless this is impossible:

The first rule about the construction of documents enjoins that the simple natural meaning of words be ascribed to them unless this is impossible, and the defendant is severely precluded from giving oral evidence to disparage the clear expressions already reduced by her or for her into writing. We have come to the conclusion in this respect also that the learned trial judge had not given the document exhibit 1 its natural and ordinary meaning and that on a close reading and study of that document it is manifest that the defendant states in exhibit 1 that the amount of 600 was the purchase price of the land which she had contracted to sell to the plaintiff. Per G. B. A. COKER, J.S.C. at P. 10, Para. D.



“Now, a general Act, prima facie, is that which applies to the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and, as regards the individual, in its effects; and as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area-a limitation which makes them local-or limited in respect of individuals or persons-a limitation which makes them personal”. Per G. B. A. COKER, J.S.C. at P. 7, Para. A.