Legalpedia Citation: (2024-03) Legalpedia 96761 (CA)

In the Court of Appeal

Holden At ABUJA

Thu Mar 14, 2024

Suit Number: CA/ABJ/CV/683/2020

CORAM

Joseph Olubunmi Kayode Oyewole Justice & ORS

Joseph Olubunmi Kayode Oyewole Justice

Abba Bello Mohammed Justice

PARTIES

ACCESS BANK PLC (SUBSTITUTED FOR DIAMOND BANK PLC BY ORDER OF COURT MADE ON 4TH APRIL, 2022)

APPELLANTS

1. MRS. ADA ANN MARK (NEE ALECHENU) (CARRYING ON BUSSINESS UNDER THE NAME AND STYLE OF A-CUBE BOUTIQU)
2. MR. OGUNMUYIWA BANK

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, EVIDENCE, CONTRACT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Respondent was a customer of the then Diamond Bank Plc and alleged that her cheque drawn in favour of a third party in the sum of N3.5 million was wrongfully dishonoured by Diamond Bank Plc. Her complaint generated a response from Diamond Bank Plc that she had insufficient funds in her account to meet the amount drawn on the said dishonoured cheque having electronically transferred almost her entire credit balance in the sum of N4,180,000 to the account of the 2nd Respondent who was also its customer in another bank. 1st Respondent disowned the transfers said to have been made to the 2nd Respondent but her request for refund was rejected by the Appellant.

The 1st Respondent took out a writ of summons against the Appellant to which she subsequently joined the 2nd Respondent.

The learned trial Judge in a reserved judgment found in favour of the 1st Respondent and granted all her reliefs against the Appellant. He also found that no case was made against the 2nd Respondent and struck out his name from the action.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal hence the instant appeal.

HELD

Appeal struck out

ISSUES

1. Whether the trial Court’s reliance on the writ of summons and statement of claim dated 27/2/2015 in its judgment of 10/6/2020 in spite of the two amendments on the same is not a grave error that has caused a miscarriage of justice on the Appellant. This it is humbly submitted is with respect to ground one of the filed notice of appeal dated 25/08/2020 and filed on the 26/08/2020?
2. Whether the trial Court was right in law to arrive at an issue suo motu without calling on the parties to first address the Court on the said issue in that regard. This issue it is humbly submitted is with respect to ground two of the filed notice of appeal dated 25/08/2020 and filed on 26/08/2020?
3. Whether the trial Court was both judicially and judiciously right in arriving at the judgment as delivered on the 10th day of June, 2020. This issue it is humbly submitted is with respect to ground three of the filed notice of appeal dated 25/08/2020 and filed on 26/08/2020?

RATIONES DECIDENDI

RECORD OF APPEAL – WHERE THE RECORD OF APPEAL IS INCOMPLETE – WHEN THE APPELLATE COURT CAN HEAR AN APPEAL ON AN INCOMPLETE RECORD OF APPEAL

An appraisal of the three issues formulated by the Appellant discloses an inescapable fact that the said issues were derived from a notice of appeal dated the 25th August, 2020 and filed on the 26th August, 2020. At the hearing of the appeal, learned counsel, Mr. Mwana relied on the Notice of Appeal filed on the 18th day of June, 2020 which said notice of appeal is contained on pages 320-324 of the record of appeal. A search of the record of appeal even with the finest toothcomb failed to bring up any notice of appeal dated the 25th August, 2020 and filed on the 26th August, 2020. This appeal is therefore palpably incompetent as it cannot be determined on the basis of an incomplete record. See MUTUAL LIFE & GENERAL INSURANCE VS IHEME (2010) LPELR-24698(CA), UKIRI VS UBA PLC (2015) LPELR-48050 (CA), MUSA & ANOR VS YAHAYA & ORS (2019) LPELR-48844 (CA) and OKOCHI & ORS VS ANIMKWOI & ORS (2003) LPELR-2455 (SC) at 14-15 where TOBI, JSC propounded the position of the law on the subject thus:

“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record. Where all diligent efforts to procure the missing part of the record fail, the Court should take the most painful decision of ordering a retrial in the matter if the missing portion of the record is material to the appeal. This must be a decision of last resort which must be taken after all efforts at locating the missing portion of the record fails. Although the decision to order a retrial will protract the litigation, an appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on an incomplete record.” – Per J. O. K. Oyewole, JCA

RECORD OF APPEAL – THE EFFECT OF AN INCOMPLETE RECORD OF APPEAL

It is trite that an incomplete record of appeal deprives the appellate Court of the means to effectively hear and determine the appeal. In other words, the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction over the appeal by the appellate Court. See IBRAHIM & ORS v AKINRINSOLA (2022) LPELR-59633(SC) at 25 – 26. paras. E – C. – Per A. B. Mohammed, JCA

CASES CITED

STATUTES REFERRED TO

Nil
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