LEGAL PRINCIPLE: APPELLATE PRACTICE – Brief Writing – Competence of Brief – Brief Based on Proposed Grounds of Appeal Not Yet Filed Is Incompetent
PRINCIPLE STATEMENT
A brief or part thereof based on proposed grounds of appeal is incompetent. See Osinupebi v. Saibu & ors. (1982) 7 SC 104 at pp 110 and 111; Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt.56) 380. As it is so, it is wrong to go ahead and file a brief based on proposed grounds of appeal, even if, as in this case, counsel gives notice in the brief that leave would be sought and obtained. Steps should have been taken to obtain leave before the respondents' brief was filed on those grounds.
RATIO DECIDENDI (SOURCE)
Per Nnaemeka Agu, JSC, in Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 at 402, cited with approval by Ejiwunmi, JSC, in Korede v. Adedokun & Anor (2001) NLC-411996(SC) at pp. 7–8; Paras A–B.
"A brief or part thereof based on proposed grounds of appeal is incompetent. See Osinupebi v. Saibu & ors. (1982) 7 SC 104 at pp 110 and 111; Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt.56) 380. As it is so, it is wrong to go ahead and file a brief based on proposed grounds of appeal, even if, as in this case, counsel gives notice in the brief that leave would be sought and obtained. Steps should have been taken to obtain leave before the respondents' brief was filed on those grounds."
EXPLANATION / SCOPE
A brief based on proposed grounds of appeal not yet filed is incompetent. Counsel cannot file a brief on grounds that are not yet part of the notice of appeal—even if notice is given that leave will be sought. The proper procedure is to obtain leave and file the amended grounds before filing the brief. Filing a brief on proposed grounds is wrong. The court will strike out the incompetent portions or the entire brief. The principle ensures that arguments are based on valid grounds properly before the court. The opposing party should not be forced to respond to proposed grounds. Compliance with procedural rules is mandatory.
