ALHAJI SALE KILAWA V ZARAKI SARAKI KALSHINGI & ANOR

Legalpedia Citation: (2015-11) Legalpedia 64387 (CA)

In the Court of Appeal

Holden At Yola

Thu Nov 12, 2015

Suit Number: CA/J/166/2012

CORAM

JUMMAI HANNATU SANKEY JCA

SAIDU TANKO HUSAINI JCA

BIOBELE ABRAHAM GEORGEWILL JCA

PARTIES

ALHAJI SALE KILAWA

APPELLANTS

ZARAKI SARAKI KALSHINGI & ANOR

RESPONDENTS

AREA(S) OF LAW

RULES OF STATUTORY INTERPRETATION, APPEALS, CIVIL PROCEDURAL LAW, JUDGMENT, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the Gombe State High Court. The 1st Respondent as Plaintiff had by a writ of summons filed on commenced an action against the Appellant and the 2nd Respondent as Defendants and claimed against them inter alia a declaration of title to land situate along Biu Road near Railway junction, damages for trespass and an order of perpetual injunction. The parties duly exchanged pleadings and the matter went to trial at the trial Court. At the conclusion of trial, the court below entered judgment in favour of the 1st Respondent, hence this appeal against the said judgment to this instant court.

HELD

Appeal struck out

ISSUES

1. “In the light of the fact that the notice of appeal was filed on 30/12/2011 and the record of appeal was transmitted to this court on 20/9/2012, whether the record of appeal was competent?”

RATIONES DECIDENDI

RECORD OF APPEAL – THE POSITION OF THE LAW ON THE REQUIREMENTS FOR COMPILATION AND TRANSMISSION OF RECORD OF APPEAL TO THE COURT OF APPEAL

My lords, by the combined effect of the provisions of the above Orders and Rules of this Court, it does appear to me that the following position of the law on the requirements for compilation and transmission of record of appeal to this Court and the subsequent filing of Appellate briefs can easily be deduced, namely:

1. A cumulative total of 90 days, subject to an extension by the court if sought for by the Appellant, is allowed for the compilation and transmission of record of appeal to this court.

2. The first duty of compilation and transmission of record of appeal is on the Registrar of the court below and shall be so done within 60 days of the filing of the notice of appeal.

3. The second duty of compilation and transmission of record of appeal where the Registrar of the court below fails or neglects to so do within the 60 days period, is on the Appellant to do so within 60 days.

4. The failure to comply with Order 8(1) and (4) of the Court of Appeal Rules 2011, may result into a dismissal of the appeal on the application of the Respondent.

5. The filing of an Appellant’s brief is dependent upon the existence of a duly compiled and transmitted record of appeal; that is forty – five days upon the receipt of the record of appeal by this Court.

See Engineering Enterprise V. AG. Kaduna (1987) 2 NWLR (Pt. 57) 381. See also Uwechia V. Obi (1973) 8 NSCC 56; Obiamalu V. Nwosu (1973) 8 NSCC 60.

INTERPRETATION – THE INTERPRETATION OF THE WORD “SHALL” AS USED IN THE COURT OF APPEAL RULES 2011

Now, with the above clear position of the law consequent upon the unambiguous provisions of the relevant Orders of the Rules of this Court, what then is the legal effect of the use of the words “shall” in Order 8 (1) and “shall” and “mandatory” in Order 8 (4) of the Court of Appeal Rules 2011?

The interpretation of the word “shall” when used in a Statute or an enactment or indeed Rules of court, has exercised the courts over the years and has thus received countless pronouncements of the courts in this Country, particularly this Court and the Supreme Court as can be seen in several decided cases as are replete in the law report. Judicial authorities on the interpretation of the word “shall” abound and I have averted my mind to the use of the word “shall” in the provisions of Order 8 (1) and (4) of the Court of Appeal Rules 2011, which word connotes and requires mandatory compliance with by either the Registrar or the Appellant.

In law, the word “shall” when used in an enactment or statute or rules of court denotes a mandatory requirement that requires mandatory compliance. It must therefore, be complied with to render such an act or process competent. It neither allows nor permits short cuts. See Oraekwe V. Chukwuma (2012) 1 NWLR (Pt. 1389) 159 @ p. 200.

In Ugwu & Anor. V. Ararume & Anor. (2007) 6 SC (Pt. 1) 88, the Supreme Court in interpreting the meaning of the word “shall” when used in a Statute, had pronounced emphatically thus:

“Generally, when the word “shall” is used in a Statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation”

RECORD OF APPEAL – EFFECT OF FAILURE TO COMPILE AND TRANSMIT THE RECORD OF APPEAL WITHIN THE TIME FRAME PRESCRIBED BY THE COURT OF APPEAL RULES

In law therefore, it would appear and I so hold that failure to comply with Order 8 (1) and (4) of the Court of Appeal Rules 2011, in view of the word “shall” used therein, is fatal to the competence of the appeal being an appeal without as duly compiled and transmitted record of appeal as required by law. It follows, therefore, that until and unless an appeal is duly entered, as by transmission of a record of appeal within the time allowed by the Rules of this Court or as may be extended by an order of this Court there can be no question of filing of appellate briefs by the parties to an appeal. Thus, without a competent record of appeal transmitted within time to this court, there can be no appeal duly entered and there can therefore be no appeal properly so called to be heard and determined by the court on the merit. This is why perhaps it is justifiable to refer to the “record of appeal” as the “Bible of the Appeal.” See N.I.W.A. V. SPDC Nig. Ltd. (2011) 6 NWLR (Pt. 1244) 618. See also Okon V. Adigwe (2011) 15 NWLR (Pt. 1270) 350; Fortune International Bank Plc V. City Express Bank Ltd. (2012) 14 NWLR (Pt. 1319) 86. 

In SPDC Nig. Ltd. V. Amadi (2011) 14 NWLR (Pt. 1266) 157 @ p. 194, Mohammed JSC., had succinctly observed thus:

“The filing of complete record of appeal in this court is very necessary before the appeal could have been entered…….

RECORD OF APPEAL – TIME FRAME WITHIN WHICH THE RECORD OF APPEAL SHALL BE COMPILED AND TRANSMITTED

By Order 8 (1) and (4) of the Court of Appeal Rules 2011, there is thus a cumulative 90 days period within which the record of appeal shall be compiled and transmitted to this Court either by the Registrar of the court below within 60 days from the date of filing of the notice of appeal; (See Engineering Enterprise V. AG. Kaduna (Supra) @ p. 381) or by the Appellant within 30 days from the expiration of the 60 days should the Registrar of the court below fails or neglects to so do; (See Uwechia V. Obi ( Supra )@  p. 56; See also Obiamalu V. Nwosu (Supra) @ p. 60). This, in my view, is the clear purport of the unambiguous provisions of Order 8 (1) and (4) of the Court of Appeal Rules 2011..

RECORD OF APPEAL – A RECORD OF APPEAL TRANSMITTED OUT OF TIME WITHOUT THE LEAVE OF COURT SOUGHT AND OBTAINED IS INCOMPETENT

In law, therefore, the record of appeal in the instant appeal transmitted to this court out of time without the leave of this court sought and obtained by the Appellant is completely incompetent and thus incapable of rendering the appeal filed by the Appellant as having been duly entered as required by law for this court to be properly seised of the matter with the requisite jurisdiction to hear and determine same on the merit.

RECORD OF APPEAL – EFFECT OF A RECORD OF APPEAL TRANSMITTED OUT OF TIME WITHOUT THE LEAVE OF COURT SOUGHT AND OBTAINED

The salient question I had earlier posed following the incompetence of the record of appeal is this: What is the legal effect on the entire appeal filed by the Appellant of the incompetent record of appeal transmitted to this court out of time without leave of this court to regularise it? The law is well settled that without a competent record of appeal, an appeal is not entered in this court and thus incompetent to be heard and determined on the merit by the court. It therefore, follows that such an incompetent record of appeal clearly robs this appeal of any competency and consequently the appeal is liable to be struck out without much ado!

In Garba V. Ummuani (2014) All FWLR (Pt. 727) 1715 @ p. 174, Mbaba JCA.,had emphatically pronounced thus:

“By Order 8 (18) of this Court’s Rules, where there is failure to compile and transmit record of appeal, the appeal may be dismissed. Also by Order 6 Rules 2(1) and Rule 6 of the Court of Appeal Rules 2011………………..(6): The Court of Appeal shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason……………Appeal is dismissed.”

The above position of the law is made even stronger in its application in the instant appeal, by the use of the word “shall” in Order 8 (1) and the words “it shall become mandatory” in Order 8 (4) of the Court of Appeal Rules 2011 dealing with the compilation and transmission of record of appeal to this court.

In SPDC Nig. Ltd. V. Chief Jonas Oruwari & Ors. (2014) AAll FWLR (Pt. 7330 2017, it was stated thus:

“Where the provisions of the law is mandatory as declared by the apex Court and it is not a mere irregularity, the question of waiver does not arise, especially where its violation is held to be a fundamental defect that renders the process associated with that provision null and void”

RECORD OF APPEAL – THE ISSUE OF RECORD OF APPEAL RAISES THE ISSUE OF JURISDICTIONAL COMPETENCE OF THE APPELLATE COURT

The issue of competence of the record of appeal raises in a very frontal way the issue of the jurisdictional competence of this Court to hear and determine this appeal on the merit.

JURISDICTION – THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDING

In law the issue of jurisdiction is a threshold one and this is so because jurisdiction, as it has been well accepted in our law, is the very basis and live wire of every cause or matter before the court, be it trial or appellate court.

Due to its fundamental nature in the litigation process, notwithstanding at whatever level of the hierarchy of courts in the land, it can be raise at any stage of the proceedings either by the parties or even suo motu by the court.

JURISDICTION – THE OBLIGATION OF THE COURT TO FIRST DETERMINE THE ISSUE OF JURISDICTION

In law, once it is raised, the court is obligated to determine it first one way or the other since it is indeed the life giving spirit of every judicial proceedings or process in the court and without which there can be no validity or competence in any judicial proceedings or process.  See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Essien V. Essien ( 2010) All FWLR (Pt. 523) 1199; Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 1 NWLR (Pt. 244) 693.

RECORD OF APPEAL – AN INCOMPETENT RECORD OF APPEAL ROBS THE APPEAL OF COMPETENCE

My lords, having firmly held as above that the record of appeal is incompetent and had thus robbed the appeal of its competence, it follows that this court is equally robbed of its jurisdiction to hear and determine this appeal on the merit and this is so because, in law a court is competent only and only when all the condition precedent to the exercise of its jurisdiction has been fulfilled. See Madukolu V. Nkemdilim (Supra) @ p. 581. See also Okereke V. Yar’Adua (2008) ALL FWLR (Pt. 430) 25; Onuorah V. Kaduna PRC Ltd. ( 2005) All FWLR (Pt. 256) 1; Western Steel Works Ltd. V. Iron & Steel Workers Union (1986) 2 NSCC (Vol. 17)786.

JURISDICTION – A JUDGMENT/TRIAL WITHOUT JURISDICTION AMOUNTS TO A NULLITY

So crucial is the question of jurisdiction that any proceeding that is incompetent completely robs the court of its jurisdiction and thus a trial no matter how well conducted or a judgment no matter how sound without jurisdiction are a nullity and thus of no legal consequences whatsoever on the rights and obligations of the parties submitted to the court for adjudication and resolution. See Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (Supra)@ p. 693, where the Supreme Court puts it so succinctly thus:

“Jurisdiction is the very basis on which any tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity”

APPEALS – AN INCOMPETENT APPEAL IS LIABLE TO BE STRUCK OUT

In law therefore, the record of appeal transmitted on 20/9/2012 in respect of a notice of appeal filed on 30/12/2011 and without the leave of court to do so out of time has rendered the entire appeal is incompetent and liable to be struck out and that is the end of the matter as the appeal itself is thereby rendered incompetent. See Amadi V. Okoli (1977) 7 SC 57.  See also Olarenwaju V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin & Anor. V. Agu & Anor (1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade (2010) 3 SCNJ 368. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RECORD OF APPEAL – THE POSITION OF THE LAW ON THE COMPILATION AND TRANMISSION OF RECORD OF APPEAL

The law which regulate the manner and time for the compilation and transmission of record of Appeal to this Court is set out in the Rules, specifically Order 8(1) (4) of the Court of Appeal Rules, 2011. Thus, upon the filing the of a Notice of Appeal the Registry of the Court from where the appeal emanates has 60 days to compile and transmit records to this Court failing which the Appellant can do so but within 30 days after the expiration of the initial 60 days given to the Registrar. In other words, a valid Record of Appeal is such record that was compiled and transmitted to this Court within a space of 90 days from the date of filing of Notice of Appeal. Time start to run from the date the Notice of Appeal was filed and to end after 90 days. PER – SAIDU TANKO HUSSAINI

RECORD OF APPEAL – WHETHER OR NOT NON-COMPLIANCE WITH RULES OF COURT WILL PRIMA FACIE INVALIDATE PROCEEDINGS

Talking about remedial approach to disobedience of the rules of Court the person or party found wanting can approach the Court, nay, this Court by virtue of Order 7 Rule 1, Order 7 Rule 10(1) and Order 8 of the Rules of this Court to seek to regularize the record improperly placed before the Court. Disobedience to rules of Court will not prima facie invalidate proceedings unless in cases where materials are not put before the Court. The apex Court in Williams V. Hope Rising Voluntary Funds (supra) put it this way:

“Non –compliance with Rules of Court do not Prima facie invalidate proceedings unless reason for such non-compliance are not advanced to the Court, and in addition, the party in breach fails to put before the Court sufficient material upon which to exercise its discretion to waive or overlook the omission”

To err, as the saying goes, is human. I believe it is in recognition of the imperfections associated with the activities of human kind that provisions akin to those of Order 7 rule 10(1) were put in place so as to create allowance and accommodate all or any of such short-coming of the person or party who might be in default. But the party in default or disobedience of the rules of Court must first make the move to correct himself. PER – SAIDU TANKO HUSSAINI

 

CASES CITED

STATUTES REFERRED TO

Uniform Civil Procedure Rules 1987 of Bauchi State

Limitation law

Court of Appeal Rules 2011

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