Legalpedia Citation: (2014) Legalpedia (CA) 98111
In the Court of Appeal
Fri Apr 11, 2014
Suit Number: CA/L/1011/09
CORAM
UGOCHUKWU ANTHONY OGAKWTU
PARTIES
FEDERAL REPUBLIC OF NIGERIA APPELLANTS
1. FRANK AMAH
2. CHYFRANK NIGERIA LTD
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant/Applicant filed an appeal against the decision of the trial Court which was made in favour of the Respondents on a No case submission. After the records of appeal were transmitted to the Court of Appeal, the Appellant/Applicant filed a motion on notice seeking for leave of the Court of Appeal to compile and file a supplementary Record of Appeal. In opposing the application, the Respondents filed a counter affidavit and a notice of preliminary objection on the grounds that the Appellant/Applicant’s application was predicated on falsehood in addition to the fact that no leave to amend records of Appeal was sought at the trial Court.
HELD
Application Granted
ISSUES
Whether the Appellant has complied with the procedure for challenging record of appeal ?
RATIONES DECIDENDI
APPEAL-WHEN AN APPEAL IS DEEMED TO BE ENTERED IN AN APPELLATE COURT-WHETHER A LOWER COURT CAN INTERFERE WITH SAME
“However; by virtue of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 an appeal is deemed entered in this court upon receipt of the Record of Proceeding from the court below in the Registry of this court. Once so entered, this court assumes full authority over the whole proceedings, hence the lower court cannot interfere in anyway whatsoever except to transmit any application filed thereat to this court”. PER OSEJI JCA
RECORD OF APPEAL -DUTY ON A PARTY CHALLENGING THE CORRECTNESS OF A RECORD OF APPEAL
“The law requires any party who questions the correctness of the Record to formally attack it with due notice of such complaint given to the opposing party and any affidavit relating thereto served on the trial judge and/or the Registrar of the court”. PER OSEJI JCA
PRELIMINARY OBJECTION-ESSENCE OF RAISING A PRELIMINARY OBJECTION
“Preliminary objection is not meant to be raised for the fun of it but must be tied to an act or omission inconsistent with the law, whether substantive or procedural, and if upheld would render further proceedings before the court impossible or unnecessary”. PER OSEJI JCA
RECORD OF PROCEEDINGS-PROCEDURE FOR CHALLENGING THE CORRECTNESS OF A RECORD OF PROCEEDINGS
“It is trite that when a party intends to challenge the correctness of the record of proceeding the normal procedure is for that party to swear to an affidavit challenging the said record of proceedings. It is also his duty to set out the facts or part of the proceeding which is wrongly stated in the records or what happened during the proceedings, which is missing or excluded from the proceedings in the trial court”. PER OSEJI JCA
RECORD OF APPEAL-TIME WITHIN WHICH A REGISTRAR CAN COMPILE AND TRANSMIT THE RECORD OF APPEAL-DUTY ON A PARTY WHERE THE REGISTRAR FAILED TO COMPILE AND TRANSMIT SAME
“By the provisions of Order 8 Rule 1 of the Court of Appeal Rules 2011. The Registrar of the lower court has the duties to compile and transmit the Record of Appeal to this court within 60 days after filing of the Notice of Appeal. It however becomes mandatory for the appellant to do so within 30 days thereafter where the Registrar fails or neglects to do the compilation and transmission within the stipulated period of 60 days”. PER OSEJI JCA
CASES CITED
Agbeotu vs. Brisibe (2005) ALL FWLR (Pt. 257)1454Akpan vs. Bob & Ors (2010)17 NWLR (Pt. 1223)421;Ndigwe vs Nwude (1999) 11 NWLR (Pt. 626) 314Mokwe vs. Williams (1997)11 NWLR (Pt. 528) 309Odunukwe vs Ofomata (2010)18 NWLR (Pt. 1225)404The Trustees of the Nigeria Railway Corporation Pension Fund vs Aina (1970) ALL NLR 283
STATUTES REFERRED TO
Court of Appeal Rules 2011