Supreme Court – May 2015
Legalpedia Electronic Citation: LERSC. 248/2003
Areas of Law
APPEAL, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
Summary of Facts
The Court of Appeal delivered judgment against the 760 named Appellants. Aggrieved with the decision of the lower court, the Appellants filed a motion, praying the court to set aside its judgment on grounds of want of jurisdiction and fraud but the Court dismissed the motion and entered judgment in favour of the Respondent. Dissatisfied with the ruling of the Court of Appeal, the Appellants appealed separately against the decision of the lower court on its refusal to set aside its decision and the appeals were consolidated in the present appeal.
Issues for Determination
- Whether the appellant’s appeal is competent considering the fact that no leave of the lower court nor that of the Supreme Court was obtained in respect of this appeal (Grounds 1 to 9 of the Notice and Grounds of appeal).
- Whether the decision of the lower court refusing to set aside its judgment upon the allegations of lack of jurisdiction and fraud can be overturned by this Court as prayed by the appellants (Grounds 1, 2, 3, 4, 6, 7, 8 and 9 of the Notice and Grounds of Appeal).
- Whether the Supreme Court can set aside the judgment of the Court of Appeal on the basis of the present appeal which is an appeal against the refusal of the Court of Appeal to set aside its own decision when no appeal exists against the substantive decision of the Court of Appeal (Grounds 5 and 9 of the Notice and Grounds of Appeal).
ISSUES FOR DETERMINATION – PURPOSE OF ISSUES FOR DETERMINATION
“The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity”. See: Ogbuanyiya vs Okudo(No. 2) (1990) 4 NWLR (Part 146) 551”
. PER K.B.AKAAHS, J.S.C.VACATING A JUDGMENT – NATURE OF FRAUD THAT WOULD BE A GROUND FOR VACATING A JUDGMENT
“In order that fraud may be a ground for vacating the judgment it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must have been deemed to have been dealt with by the Court”. See: Flower vs Lloyd (1879) 10 Ch. D. 327”
.PER K. B. AKAAHS, J.S.C.
SETTING ASIDE A JUDGMENT ON GROUNDS OF PROCEDURAL IRREGULARITY – A JUDGMENT CAN BE SET ASIDE ON GROUNDS OF PROCEDURAL IRREGULARITY BY A MOTION OR AN APPLICATION BY THE PARTY AFFECTED
“Where the steps taken by a court in the course of its proceeding amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect and the inherent power of the court to set aside a judgment that is palpably a nullity could be invoked by a motion or an application by the party affected by the order. See: Ndiewe vs Nwude(1999)11 NWLR (Pt. 626) 315 at 339; Ezeokafor v Ezeilo(1999) 9 (Pt. 619) 513 at 530
RECORDS OF APPEAL – TIME FRAME FOR COMPILING THE RECORDS OF APPEAL
“The function of compiling the records is the primary responsibility of the Registrar of the court below. Where the Registrar fails to compile the records within sixty days after the filing of the notice of appeal, it becomes mandatory on the part of the appellant to compile and transmit the records. In a situation where the record of appeal is compiled by the appellant, the respondent is at liberty to compile additional records. This is contained in Order 8 Rules 4, 5 and 6
which state –
“4. Where at the expiration of sixty days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.
5. Such records compiled by the appellant, shall be served on the respondent or respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
6. Where the respondent considers that there are additional records which may be necessary in disposing the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records of appeal.”PER K.B.AKAAHS, J.S.C. RECORD OF APPEAL – DUTY OF THE COUNSEL TO ENSURE A COMPLETE RECORD OF APPEAL
“It is counsel’s duty to ensure that the record of appeal is a complete record. Thus where a document … was marked rejected for not having been certified, it was impossible for the appeal court to find out if the document was certified or not since it was not made part of the record and so could not make a finding on the issue.The Court stated that it is counsel’s duty to ensure that the record of appeal is a complete record and a party cannot complain if a ground of appeal is not considered since he had an opportunity during the settlement of record to have the document included in the record”. See: Omoni vsTom (1991) 6 NWLR (Part 195)”
. PER K. B. AKAAHS, J.S.C.
RECORD OF PROCEEDINGS – DUTY OF THE COURT NOT TO GRANT A HEARING TO A PARTY WHERE THE RECORD IS INCOMPLETE
“A court is not obliged to grant a hearing to a party where the record is incomplete and the party’s attention is drawn to it and inspite of this, the party insists on proceeding with his case without remedy in the situation”. PER K.B.AKAAHS, J.S.C.
FORMULATION OF ISSUES FOR DETERMINATION – PRINCIPLE GOVERNING THE FORMULATION OF ISSUES FOR DETERMINATION
“The principle which governs the formulation of issues for determination in an appeal has been repeatedly stated by the Court. The grounds of appeal should in no circumstance be less than the issues for determination. Though the Court may tolerate equal number of grounds and issues formulated therefrom a situation where there are less grounds of appeal than issues for determination cannot be tolerated. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385, A-G Bendel State v. Aideyan(1989) 4 NWLR (Pt. 118) 649, Ugo v. Obiekwe& Anor (1989) 1 NWLR (Pt. 99) 566”. PER N. S. NGWUTA, J.S.C
Statutes Reffed To
Constitution of the Federal Republic of Nigeria, 1999
Court of Appeal Rules 1981
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