TUNWASHE KABIRU vs. THE STATE

CORAM

PARTIES

TUNWASHE KABIRU

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant/Applicant filed an application on 6th December, 2016 praying for:

1) AN ORDER quashing the conviction and sentencing of the Applicant as decided in the judgement of the High Court of Lagos State (coram Honourable Justice Shitta-Bey) delivered on 19 December, 2006 in Charge No: ID/11C/2004 – The State v Anjorin Lateef & 7 Ors.

2) AN ORDER directing that Charge No: ID/11C/2004 – The State v Anjorin Lateef & 7 Ors be remitted to the High Court of Lagos State for trial de novo.

The Application is based on seven grounds and supported by an Affidavit, sworn to by Shehu Mustafa as well as further affidavit filed on 12th April, 2016 together with a copy of the judgement with the proposed Appellant’s Brief of Argument. A Written Address was prepared by Chukwuka Ikwuazom, Shehu Mustafa, Ayodeji Atere of Aluko & Oyebode & Co.

The Respondent on the other hand filed a Counter affidavit to the motion on 29th September, 2017 with two Exhibits annexed. The Respondent’s Address was prepared by Sunmonu Tunde Bashiru, Esq., Chief State Counsel in the Lagos State Ministry of Justice which was deemed adopted in their absence.

The crux of the case is that the trial Court gave judgement in a criminal charge wherein it convicted and sentenced the Appellant and 5 others on 19th December, 2006. Subsequently, the Appellant appealed to the Court of Appeal vide a Notice of Appeal filed on 26th April, 2013. The record was thereafter transmitted and received at the Registry of the Court of Appeal on 23rd May, 2016. During the preparation of the Appellant’s brief of Argument, it became clear to the Applicant’s Counsel that the relevant proceedings upon which he has to base the Applicant’s appeal were missing and all effort to locate the same has proved abortive; hence, this application.

HELD

Application granted.

ISSUES

The Appellant formulated a sole issue for determination thus:

Whether this Honourable Court, as presently constituted, has the vires to grant the reliefs sought in this application and whether this court ought to, in the circumstances of this appeal, grant the reliefs sought on the face of the Notice of Motion dated 6th December, 2016?

The Respondent also formulated a sole issue for determination thus:

Whether taking into cognizance the facts that substantial part of records of the lower court had already been transmitted to this Honourable Court the Applicant is entitled to the reliefs sought.

RATIONES DECIDENDI

INCOMPLETE RECORDS OF APPEAL- WHETHER AN APPELLATE COURT HAS JURISDICTION TO ENTERTAIN AN APPEAL ON INCOMPLETE RECORDS

“No doubt, this court lacks the jurisdiction to entertain an appeal predicated on an incomplete record. Put in another way, an appeal cannot be heard on an incomplete record. See AULT & WILBORG (NIG) LTD v NIBEL IND. LTD (2010) 11 NWLR (PT 1220) 486; EKPEMUPOLO & ORS v EDREMODA & ORS [2009] 8 NWLR (PT 1142) 166 SC.” – Per OBASEKI-ADEJUMO, J.C.A.