Legalpedia Citation: (2015) Legalpedia (CA) 51137

In the Court of Appeal

HOLDEN AT GOMBE

Tue May 26, 2015

Suit Number: CA/J/38/2006

CORAM

PARTIES

ALHAJI DANLADI MUAZU

APPELLANTS

1. MAINSTREET BANK.
2. DIRECTOR GENERAL, MINISTRY OF LANDS GOMBE STATE.
3. THE ATTORNEY GENERAL GOMBE STATE.
4. B. A. YAHAYA

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This is an Appeal against the judgment of the Gombe State High Court. The brief facts of this case are that by a writ summons filed before the Court below, the Appellant as Plaintiff claimed several reliefs including declaration that  the application for consent to assign the property covered by Certificate Of Occupancy No. BA/1722 dated 12/10/91 made on behalf of the 1st Respondent by the 4th Respondent was fraudulent, illegal, null and void on the ground that it was made without the prior knowledge and consent of the Appellant, the owner of the said property.  The 1st Respondent responded that the premises belonged to it by virtue of a deed of Assignment executed between it and the Appellant, which the Appellant avers he was never aware of any such sale transaction between him and the 1st Respondent. It was the case of the 2nd and 3rd Respondents through their pleadings and the evidence of their sole witness who testified as DW4 (Adamu Fantami) that they duly carried out their duty of processing the application for consent and which was subsequently granted and consequent upon which the Deed of Assignment was duly registered in favour of the 1st Respondent on the application of the 4th Respondent, a Legal Practitioner in line with the 2nd Respondent policy since majority of the persons they deal with in the State are illiterate but they were never aware that the Appellant was an illiterate as he had executed other transactions/document with other persons before the 2nd Respondent without illiterate  jurat.  They carried out their duty without any fraud against the Appellant, who duly executed the Deed of Assignment by signing it in favour of the 1st Respondent. The High Court in its judgment dismissed the claims of the Appellant as Plaintiff against the Respondents as Defendants. The Appellant was thoroughly dissatisfied with the judgement of the Court and had promptly appealed to this Court vide a Notice of Appeal.

HELD

Appeal Struck Out

ISSUES

Whether this Appeal No. CA/J/38/2006 is competent in law in view of failure of the Appellant to transmit Exhibits A, A1, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 to this Court despite they were tendered in evidence and form the bone of contention of this Appeal”.    Whether the trial Court was right in declaring title to the 1st Respondent based on the totality of evidence led and Exhibits tendered before it despite the contradictory evidence led by the Defendants/Respondents’ witnesses.    Whether the trial Court was right in holding that the appellant had not proved fraud after the overwhelming confession of the 4th Respondent in respect of Exhibits 6, 7, 8, 9, 10, 11, 12 and 13 and the contradictory testimonies of DW1, DW2, and DW3    Whether the provisions of Section 115 of the Evidence Act is applicable to documents of title.

RATIONES DECIDENDI

NOTICE OF APPEAL – THE POSITION OF THE LAW WHERE A PARTY WHO IS PUT ON DUE NOTICE FAILS TO PARTICIPATE IN THE CASE

The law therefore, is that in the circumstances in which the 2nd and 3rd Respondents though duly served with all the relevant processes in this appeal has failed, refused or neglected to participate in this appeal, once parties to a case have been given due notice of the hearing of the case but they neglect, refuse or fail to take advantage of the opportunity given to them to be duly heard in the case after due service of hearing notices on them, the case to be considered on the merit by the Court is the case as presented by the party that appeared before the Court.  In this vein, it is not the business of the Court as to why the other party put on due notice has failed, refused or neglected to participate in the case and such an issue is of no moment.  See Military Governor of Lagos state V. Adeyiga (2001) FWLR (Pt. 83) 2137 @ P. 2156. PER – BIOBELE ABRAHAM GEORGEWILL JCA

REPLY BRIEF – MEANING OF REPLY BRIEF

A Reply brief is ordinarily the medium through which an Appellant served with a Notice of Preliminary Objection filed pursuant to Order 10 (1) Court of Appeal Rules 2011 by a Respondent is required to answer to the issues canvassed in a Notice of Preliminary Objection.  This is the clear intendment of Order 18 Rule 5 Court of Appeal Rules 2011, which succinctly provides thus:

“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief file and serve or caused to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief”.

PER – BIOBELE ABRAHAM GEORGEWILL JCA

PRELIMINARY OBJECTION – THE BOUNDEN DUTY OF THE COURT TO CONSIDER AND RESOLVE ANY ISSUE RAISED IN THE NOTICE OF PRELIMINARY OBJECTION

Be that as it may, this Court being a Court of law as well as a Court of justice is under a bounden duty to consider the issue raised in the Notice of Preliminary Objection on its merit and resolve it one way or the other according to law notwithstanding the failure of the Appellant to file a Appellant’s Reply brief as required of him by the Rules of this Court.  See Order 18 Rule 5, Court of Appeal Rules 2011.  See Adah V. N.Y.S.C. (2004) 13 NWLR (Pt. 891) 639; Tanko V. UBA Plc (2010) 17 NWLR (Pt. 1221) 80; Obiuweubi V. C. B. N. (2011) 17 NWLR (PT. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. A. G. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (Supra) @ Pp. 153 – 154. PER – BIOBELE ABRAHAM GEORGEWILL JCA

JURISDICTION – JURISDICTION IS THE BASIS AND LIFE WIRE OF EVERY ACTION

The law has been well settled and no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter or action or cause and on which any Court whether be it trial or appellate hears and determines a case.  It is indeed the life blood of all actions and every trials in our Courts, without which all such hearing or trials are a nullity.  See Madukolu V. Nkemdium (1962) 2 All NLR 581; Onuorah V. Kaduna P.R.C. (2005) All FWLR (Pt. 256) 1356; Okereke V. Yar’Adua (2008) All FWLR (Pt. 343) 636. PER – BIOBELE ABRAHAM GEORGEWILL JCA

JURISDICTION – THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF THE PROCEEDING EVEN FOR THE FIRST TIME ON APPEAL

The corollary to the above well settled position of the law is that the issue of competence or jurisdiction once raised, and it could be raised at any stage of the proceedings even for the first time on appeal, a Court is under a bounden duty, and indeed an obligation, to consider it first and resolve it one way or the other.   This is so because jurisdiction is the fundamental basis on which every judicial proceeding is founded and without which there can be no validity or competence.  It is for this obvious reason and many more as are germane and replete in several decided cases in our law reports, that the effect of lack of competence or jurisdiction on the process, proceedings and decisions of the Court can be liken to a watchman who watches the builder who labour in vain except the Almighty builds.  Thus, without competence or jurisdiction, the labourers, that is parties and their counsel on the one hand, and the Court on the other hand do labour in vain.  See A G Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 614. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – THE POSITION OF THE LAW ON THE EFFECT OF INCOMPLETE RECORD OF APPEAL

What then is the position of the law on the effect of incomplete record of appeal?  In Chief Thomas Ekpemupolo Co & Ors V. Godwin Edremoda & Ors (2009) 8 NWLR (Pt. 1142) 166, it was firmly held by the Supreme Court per Ogbuagu JSC that:

“It is now firmly settled that it is the duty of an Appellate Court, not to hear an appeal on incomplete record” See also Chief Okochi & 2 Ors V. Chief Aninkwoi & 2 Ors (2003) 18 NWLR (Pt. 251) 1 0r (2003) 2 SCNJ 260.

The reason for the above stringent position of the law is that the record of proceedings binds the parties and the Court until the contrary is proved.  See Sommer V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; Orugbo & Anor Bulari Uma & Ors V. Chief Mimmah & Ors (2003) 5 SCNJ 142 @ P. 168.  The record of appeal binds both the parties and the Court because there is a presumption of geniuness which is not absolute though but is rebuttable.  See Alhaji Nuhu V. Alhaji Ogele (2003) 18 NWLR (Pt. 852) 251 @ P. 272.  PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – THE IMPORTANCE OF THE RECORD OF APPEAL

The importance of the record of appeal is under scored by the fact that a Court is entitled to look at and refer to the contents of the Record in consideration of any matter before it. See Funduk Engineering V. Mc Arthur (1995) 2 NWLR (Pt. 392) 640 @ P. 652; Texaco Panama Incorporation (Owners of the vessel “Mv” Star Tulsa) V. Shell Petroleum Development Corporation of Nigeria Ltd (2002) 2 SCNJ 102 @ P. 118. PER – BIOBELE ABRAHAM GEORGEWILL JCA

REHEARING OF AN APPEAL – WHETHER OR NOT AN APPEAL FROM THE LOWER COURT CAN BE DETERMINED BY WAY OF A REHEARING

It is indeed well settled law that an appeal from the lower Court shall be determined by way of a rehearing.  As such the Court has an onerous duty to rehear fully and accord a second consideration of such aspects of the entire records of appeal, comprising the lower Court’s proceedings and evidence adduced thereat, to such an extent as the grounds of Appeal demand” See also Nwana V. FCDA (2007) 11 NWLR (Pt. 1044) 59 @ P. 84 D – F; Panalpina World Transport V. Wariboko (1975) 2 SC 29; Oparaji V. Ohana (1999) 9 NWLR (pt. 618) 290; Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – DUTY TO TRANSMIT RECORD OF APPEAL

Now, primarily the duty to compile and transmit the record of Appeal to the Appellate Court rest on the Registrar of the Court below, from whose Registry the record of Appeal is compiled and transmitted. See Order 8 Rule 1, Court of Appeal Rules 2011.  See also Engineering Enterprises V. A.G. Kaduna State (1987) 2 NWLR (Pt. 57) 381) @ P. 403.  However, in Uwechia V. Obi (1973) 1 NMLR 308 and Obiamalu V. Nwolu (1973) 8 NSCC 60, due to the events of the Nigeria Civil War, the records of the trial High Court could not be traced, and therefore the record of Appeal could not be compiled and transmitted by the Supreme Court.  In the interest of justice the Appeals were struck out to enable the Appellant to file fresh appeals whenever they could compile the records of Appeal. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – THE CRUCIAL IMPORTANCE OF A COMPLETE RECORD OF APPEAL

The crucial importance of a complete record of Appeal was further under scored by the damning remark of His Lordship, Niki Tobi JSC in Okochi V. Animkwo)2003) 18 NWLR (Pt. 951) 1 @ P. 24.

“It would be unjust to hear an appeal on incomplete record”

See also Akinmolarin V. Yeyebinu (1975) NMLR 45; Engineering Enterprise Nig. Ltd V. A G Kaduna (1987) 2 NWLR (Pt. 57) 381;  Seplat Petroleum Development V. Brittania – U Nigeria Ltd & Ors (2014) LPELR 23126; AULT & Wiburg Nig. Ltd V. Nibel Ind. Ltd. (2010) 11 NWLR (Pt. 1220) 486 @ P. 496; Chief Okochi & 2 Ors V. Chief Animikwoi & 2 Ors (2003) 18 NWLR (pt. 251) 1; Orugbo & Anor V. Bulari Umja & 10 Ors (2002) 9 NSCJ 12; Sommer V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548 @ 560; Okunzua V. Amosun (1992) 6 NWLR (Pt. 248) 416 @ P. 432; A G Oyo State V. Fairlakes Hotels (No. 2) (1989) 5 NWLR (Pt. 121) 255 @ Pp. 278 – 279;  Edjekpo V. Osia (2007) 8 NWLR (pt.1037) 635. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – A RECORD OF APPEAL MUST BE COMPLETE IN ORDER NOT TO ROB THE APPELLATE COURT OF ITS JURISDICTION

The record of Appeal, which by law is binding on both the parties and the Court when transmitted to the Registry of the Appellate Court, must perforce be complete, in order not to rob the appellate Court of its jurisdictional competence to hear and determine the appeal.  See COP V. Okoye (2014) 4 NWLR (Pt. 1320) 390 (CA); Madueke V. Madueke (2012) 4 NWLR (pt. 1289) 77 @ Pp. 93 – 94 per Oseji JCA: Dobalus V. Alex Ademyor Mene (2009) 17 NWLR (Pt. 1169) 74);  Ojeme V. Momodu 11 (1995) 6 NWLR (pt. 403) 583. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – CUMULATIVE EFFECT OF FAILURE TO TRANSMIT COMPLETE RECORD OF APPEAL

The collorary of all the above and indeed the cumulative effect of the failure to transmit complete record of appeal to this Court in this Appeal by the Appellant is that the appeal founded upon an incomplete record of appeal is itself incompetent and thus robbing this Court of the jurisdictional competence to hear and determine this appeal on the merit. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – DUTY OF AN APPELLATE COURT NOT TO HEAR AN APPEAL ON INCOMPLETE RECORDS

It is since firmly settled that it is the duty of an appellate court not to hear an Appeal on incomplete records. This is because the Record of proceedings binds both the parties as well as the Court, until the contrary is proved. Also the Court is entitled, but even more than that, it is obliged, to inspect, scrutinise and refer to the contents of the entire Records of the lower Court in the contemplation of the matter before it. See Ekpemupolo V Edremoda (2009) LPELR-1089(SC); Okochi V Animkwoi (2003) 2 SCNJ 260 at 271; Fubara V Minimah (2003) 5 SCNJ 142 at 168; Nuhu V Ogele (2003) 12 SCNJ 158 at 172; Orugbo V Uma (2002) 9 SCNJ 12; Texaco Panama Incorp. (Owners of the Vessel “M.V.” Star Tulsa) V SPDC Nig Ltd (2002) 2 SCNJ 102 at 118. PER – JUMMAI HANNATU SANKEY, J.C.A.

CASES CITED

Not Available

STATUTES REFERRED TO

Court of Appeal Rules 2011

Evidence Act 2011

Laws of Bauchi State (Illiterate Protection Law)

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