MUHAMMED SANI KALGO v. THE STATE
May 28, 2021BAMS INVESTMENT LTD VS ALHAJI BUKAR KOLO & ANOR
May 28, 2021ACCESS BANK v. MR. A.N.C. ONWULIRI
(2021) Legalpedia (SC) 38582
In the Supreme Court of Nigeria
HOLDEN AT LAGOS
Thursday, January 14, 2021
Suite Number: SC.657/2013
CORAM
OLABODE RHODES-VIVOUR
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
CHIMA CENTUS NWEZE
AMINA ADAMU AUGIE
UWANI MUSA ABBA AJI
ACCESS BANK || MR. A.N.C. ONWULIRI
AREA(S) OF LAW
APPEAL
JUDGMENT AND ORDER
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent by a Writ of Summons sought against the Appellant a declaration that the summary dismissal of the Respondent was null and void, an Order of reinstatement, special damages, arrears of salary, general damages, amongst other reliefs. In its defence, the Appellant denied the claims of the Respondent. At the end of the trial, the Court entered judgment in favour of the Respondent. The Appellant was dissatisfied with the decision and filed an appeal before the Court of Appeal, Port Harcourt Division, which in turn dismissed the appeal as the Exhibits tendered by the Respondent and upon which the trial Court placed heavy reliance in reaching its decision, were not transmitted along with the record of proceedings of the trial Court. Aggrieved, the Appellant appealed to the Supreme Court vide its Notice of Appeal containing two Grounds of Appeal.
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HELD
Appeal Allowed
ISSUES FOR DETERMINATION
Whether the Court of Appeal was right by dismissing Appeal No. CA/PH/433/2008: Access Bank Plc Vs Mr. A. N. C. Onwuliri for failure on the part of the Trial Court Registry to transmit along with the record of appeal, all the exhibits tendered at the High Court.
RATIONES
RECORD OF PROCEEDINGS – IMPORTANCE OF THE RECORD OF PROCEEDINGS
“It is settled law that an appeal is in the nature of a rehearing in respect of all the issues raised in respect of the case. It is a continuation of the original suit rather than a new action. See: Sabru Motors Nig. Ltd. Vs Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 370 @ 382; Obineche Vs Akusobi (2010) 12 NWLR (Pt. 1208) 383; Alhassan& Anor. Vs Ishaku&Ors. (2016) 10 NWLR (Pt. 1520) 230. See Order 3 Rule 2 (1) of the Court of Appeal Rules, 2002 and all subsequent amendments of the Court of Appeal Rules, which consistently provide that all appeals shall be by way of rehearing. In the circumstances, the importance of the transmission of a complete record to the appellate Court cannot be over-emphasised. A complete record consists of all the proceedings in the lower Court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered. The record of proceedings serves as the reference material for the appellate Court upon which to base any of its findings. The importance of the record of proceedings is further illustrated by the numerous decisions of this Court to the effect that the Court, the parties and their counsel are bound by the record of appeal. It is presumed correct until the contrary is proved and neither the Court nor the parties may go outside it for any reason. See: Garba Vs Omokhodion (2011) LPELR – 1309 (SC) @35-36 D-A; Sifax Nig. Ltd &Ors. Vs MIGFO (Nig.) Ltd. & Anor. (2018) 9 NWLR (Pt. 1623) 139; (2018) LPELR – 49735 (SC) @ 46 A-E; Agbareh& Anor. Vs Dr. Anthony Mimra & Ors. (2008) LPELR – 43211 (SC) @ 21 B – F, to name just a few. –
Per K. M. O. KEKERE-EKUN, J.S.C.
“It has always been the settled position of the law that a Court is not entitled to speculate on matters not before it. I have also illustrated elsewhere in this judgment, the binding nature of the record of appeal. The decision of this Court to the effect that on no account must the Court deliberate on an incomplete record, are in recognition of this principle. Without seeing the material that was before the trial Court, the appellate Court would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice. –
Per K. M. O. KEKERE-EKUN, J.S.C.
RECORDS OF APPEAL – COURT AND PARTIES ARE BOUND BY THE RECORD OF APPEAL
“As His Lordship pointed out in the leading judgment, the record of appeal is presumed correct. The parties and the Court are bound by it. This means that this Court is not permitted the indulgence of venturing outside the perimeters of its contents, Orugbo v Una [2002] 16 NWLR (pt. 792) 175, 206, 207; Agbareh and Anor v Mimra and Ors (2008) LPELR-43211 (SC) 21”. –
Per C. C. NWEZE, J.S.C.
ORDER OF DISMISSAL – EFFECT OF AN ORDER OF DISMISSAL
“An order of dismissal signifies that the Court had entertained the matter on the merits. See Per RHODES-VIVOUR, J.S.C. in General Electric Company V. Akande & Ors (2010) LPELR-8097(SC) (P. 19, PARAS. B-C). It operates as an estoppel per rem judicata and Ipso facto bars the losing party for all times re-litigating the same subject matter. See Per ADEKEYE, J.S.C. in Makun & Ors. V. Futminna & Ors (2011) LPELR-15514(SC) (P. 30, Paras. B-C). – –
Per U. M. A. AJI, J.S.C.
RECORD OF APPEAL – PROPER ORDER TO MAKE ON AN INCOMPLETE RECORD OF APPEAL
“Since it was found out by the lower Court that the record of appeal was incomplete, the lower Court ought not to have heard the appeal until same is compiled and transmitted or strike out the matter to give the parties another bite at the cherry. This Honourable Court, Per PETER-ODILI, J.S.C., in Ukiri V. EFCC (2018) LPELR-43992(SC) (PP. 19-26, Paras. F-B), struck out a matter for lack of complete record of appeal, when it held thus: The bottom line in this application and the submissions for and against it, is that the Record of Appeal as compiled and transmitted by the appellant is unusable and there is no redemption in sight. That being so the option open to this Court is to strike out the appeal. It follows that the application which I earlier stated at the beginning in which the appellant prays for the appeal to be heard on his appellant’s brief alone is a non-starter as there really cannot be an Appeal without a Record of Appeal from which a consideration will be made. This appeal is incompetent from the foregoing and I strike it out. –
Per U. M. A. AJI, J.S.C.
STATUTES REFERRED TO
Court of Appeal Rules, 2007|Court of Appeal Rules, 2011|
COUNSEL
T. J. KRUKRUBO, ESQ. with him, D. D. Killi, Esq. and S. M. Tsado, Esq.For Appellant(s)|BENJAMIN OBIORA, ESQ.For Respondent(s)|
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