CORAM

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JAAFARU MIKA’ILU

MONICA B. DONGBAN-MENSEM , JUSTICE, COURT OF APPEAL

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PARTIES

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S. N. IBE

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PETER ONUORAH

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiff’s/Respondent’s claim against the Defendant/Appellant is for perpetual injunction, restraining the Appellant, his agents or servants from entering into or on or upon a piece and parcel of land situate at Abakpa Nike within the jurisdiction of the court which is in exclusive possession of the Respondent as the owner as shown on plan No. AN/GA437/76, and N580 special and general damages for trespass thereon made up as follows: N80,00 being value of 4 cement pillars wrongfully removed by the Appellant and; N500.00 being general damages. At the end of the Magistrate’s Court trial, the learned Chief Magistrate held that the Respondent had not proved that he was lawfully in possession of the land in dispute. He therefore dismissed both the Respondent’s claim and the Appellant’s counter-claim, which he said he did not see, with no order as to costs. The Respondent being dissatisfied with that judgment appealed to the High Court. The appeal was duly argued, at the end of which the learned appellate Judge allowed the appeal. The Appellant was in turn dissatisfied with the above judgment, and so appealed further to the Court of Appeal. The grounds of appeal were of mixed law and fact, and so leave of court was sought within time but was granted out of time. Without that irregularity being brought to the attention of the Court of Appeal, the court proceeded, heard the appeal, and ultimately gave a unanimous decision allowing the appeal of the Appellant, setting aside the decision of the High Court, and dismissing the claim of the Respondent in its entirety. Aggrieved by that decision, the Respondent appealed to the Supreme Court, which struck out the appeal and declared the Court of Appeal’s judgment a nullity. Faced with the above situation, the Appellant has come back to this court, and by a motion has applied for extension of time within which to seek for leave to appeal against the judgment of the High Court, leave to appeal, extension of time within which to file notice and grounds of appeal; and for stay of execution of the said judgment and same was granted. This appeal is for re-hearing before a different panel of justices.

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HELD

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Appeal Dismissed

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ISSUES

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None

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RATIONES DECIDENDI

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RECORD OF APPEAL- BASIS ON WHICH AN APPEAL IS FOUGHT

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“It is our law that:
An appeal should be fought on the basis that the record is correct. Where record of appeal does not correctly represent what took place at court below, steps must be taken to make it so.
(1) “Ehikioya v. C.O.P (1992) 4 NWLR (Pt.233) 57 at 74; (2) Ojeme v. Momodu (1994) 1 NWLR (Pt.323) 685 at 697.”

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RECORD OF APPEAL- DOCUMENTS THAT MUST STATUTORILY BE CONTAINED IN A RECORD OF APPEAL

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“Reference must also be made to Order 3 rule 9(1) of our Court of Appeal Rules, 1981, which sets out the important documents that must statutorily be contained in any “Record of Appeal.
9(1) The record of appeal shall contain the following documents in the order set out:-
(a) The index;
(b) A statement by the Registrar of the court below giving brief particulars of the case and including a schedule of the fees paid;
(c) Copies of the documents settled by the Registrar of the court below for inclusion in the record of appeal in accordance with rule 8 of this Order;
(d) A copy of the notice of appeal and other relevant documents filed in connection with the appeal.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 1981 (now 2016)|High Court Law of Enugu State|

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