Legalpedia Citation: (2024-03) Legalpedia 32172 (CA)

In the Court of Appeal

Holden At KADUNA

Thu Mar 14, 2024

Suit Number: CA/K/611/2019

CORAM

Onyekachi Aja Otisi Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

PARTIES

YUSHEHU SARKIN DILLALAI

APPELLANTS

1. HAJARA ABDULLAHI
2. MUHAMMADU SAMINU ADAM

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

SUMMARY OF FACTS

The Appellant was the Applicant at the High Court sitting on Appeal and Judgment Debtor at the Magistrate Court. The 1st Respondent is the Registrar of Chief Magistrate Court Rigachikun, while the 2nd Respondent was the judgment creditor for whom compensation of N1,000,000.00 was awarded at the Magistrate Court and also the 2nd Respondent to the Application of the Appellant at the High Court.

Documents which are writ of attachment were pasted on the property of the Appellant located at Ungwan Uku, Maraban Jos, Kaduna by the order of the Respondents.

The Appellant claims that the Magistrate has no powers to issue writ of attachment on immovable properties, and therefore, the issue of the writ of attachment against the immovable property of the Appellant is an abuse of Court process and should be set aside.

The 2nd respondent filed a counter affidavit to the application and contended that the Appellant was indebted to him in the judgment of the Magistrate Court to the sum of N1,030,000.00 and he has not paid same. He claimed that the Appellant submitted a dud cheque of N300,000.00 which was not cashed by the registrar because funds were not in the account of the Appellant. The 2nd Respondent claimed that since the Appellant was not willing to pay the judgment sum of N 1,030,000.00, it is only the attachment of his immoveable property that would satisfy the judgment of the Magistrate Court and the Magistrate Court rightly approved the order of attachment of the immoveable property of the Appellant and it is in the interest of justice to refuse the application.

The Trial court dismissed the motion to set aside the order of attachment.

The Appellant being aggrieved with the decision of the Trial High Court in roundly dismissing his motion to set aside the order of attachment of his property suo motu appealed against same hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the trial chief Judge was right to dismiss the appellant’s motion after concluding that the affidavit contained no facts to support the prayers in the motion?
2. Was the former chief Judge right to have gone ahead to decide the appellant’s motion when he knew that counter affidavit was served the previous day and the appellant was still within time to respond to the counter affidavit?
3. Was the trial former chief Judge of the Court below right to move the appellant’s motion suo motu, raise the issues of absence of record of proceedings and order of the lower Court suo motu, raise the issues of paragraphs 5, 6, 7 and 9 of the supporting affidavit suo motu, argue them and decide them without affording counsel opportunity to address him before dismissing the motion?

RATIONES DECIDENDI

JOINDER OF ISSUES – MEANING OF JOINDER OF ISSUES – CONDUCT OF COURTS WHEN ISSUES HAVE BEEN JOINED

…as rightly prayed by the respondent, since issues had been joined in the sense that there is a counter affidavit and a written address in opposition, the only order the Court can make upon the moving of the motion is to dismiss same.

Joinder of issues is the submission of an issue jointly for a decision, the acceptance or adoption of a disputed point as the basis of argument in a controversy and the taking up of the opposite side of a case or of the contrary view of a question. This Court in Donatus Uzodinma Odoemelam v. Linus Opoko Nduka & Anor (2012) LPELR-9825 (CA) Page 29 paras B-E Per OWOADE, JCA Said: “A trial Court is only bound to pronounce on issues joined by the parties in their pleadings. Parties are said to join issues when they take up the opposite side of a case or when they jointly submit an issue for decision. The 8th Edition, of the Black’s Law Dictionary at page 854 defines “joinder of issues” (1) The submission of an issue for decision. (2) The acceptance or adoption of a disputed point as the basis of argument in a controversy- Also termed joinder in issue, similiter (3) The taking up of opposite side of a case, or of the contrary view on a question.” – Per M. S. Hassan, JCA

RECORD OF APPEAL – CONDUCT OF APPELLATE COURTS TO RECORDS OF APPEAL

An appellate Court has no jurisdiction to read into the Record what it does not contain or to read out of the Record what it contains. It must read, interpret and apply the exact content of the record without more. See Chukwuma Ogwe & Anor v. Inspector General of Police & Ors (2015) LPELR-24322 (SC) Page 16. – Per M. S. Hassan, JCA

SUO MOTU – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

It is settled law and the Appellant is right, that where a Court raises an issue suo motu, it must call on the parties to address the Court on the issue. The Apex Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting parties to address it on the matter. See Augustine Nwafor Mojekwu v. Mrs. Theresa Iwuchukwu (2004) LPELR-1903 (SC) Per Mohammed, JSC. Page 25. – Per M. S. Hassan, JCA

RECORD OF APPEAL – CONDUCT OF APPELLATE COURTS TO RECORDS OF APPEAL – DUTY OF AN APPELLANT CHALLENGING THE REGULARITY OF THE RECORD BEFORE AN APPELLATE COURT

This Court is bound by the record before her. Therefore, as I held earlier, this Court cannot help the appellant as the presumption of regularity of the record of this Court has not been rebutted. The only way the Appellant could challenge the regularity of the record before this Court was to file an affidavit challenging the record of Court and state the fact that the trial Judge did not record, as rightly submitted by the 2nd Respondent’s counsel. This, the appellant had failed to do, but chose to adopt this style of arguing the issue in his brief. This procedure is unknown to law and like I said, this Court can’t help the appellant. – Per M. S. Hassan, JCA

RECORD OF APPEAL – THE POSITION AND IMPORTANCE OF THE RECORD OF APPEAL – THE PROCEDURE FOR COMPILING THE RECORD OF APPEAL – WHERE A PARTY QUESTIONS THE CORRECTNESS OF THE RECORD OF APPEAL – CONDUCT OF APPELLATE COURTS TO RECORDS OF APPEAL

It is imperative in this appeal, having regard to the assertions of the Appellant, to stress the pivotal position and importance of the Record of Appeal in the hearing of an appeal. In Abiodun v FRN (2023) LPELR- 61007(CA) at pages 21-25, I had restated the centrality of the record of appeal in the hearing of an appeal in this manner:

The Record of Appeal is a compilation of all the documents, evidence, and proceedings from the case at a trial or lower Court that are necessary for an appellate Court to review and decide on an appeal. It is a comprehensive collection of materials that allows the appellate Court to understand the issues raised, the arguments made, and the decisions rendered in the lower Court. The Record of Appeal includes the written record of all oral proceedings, such as hearings, oral and documentary evidence, and arguments made before the lower Court, as well as pleadings, petitions, charges, exhibits, copies of all orders, judgments, or rulings issued by the trial Court Judge, including the final judgment being appealed. The contents of a Record of Appeal are well specified in the Rules.

The Record of Appeal serves as the foundation for the appellate Court’s review and decision-making process. It allows the appellate Judges to evaluate whether errors were made during the trial proceedings, determine if the lower Court’s decision was legally sound, and consider the arguments presented by the parties. The record of appeal is therefore the basis for the determination of an appeal. It is an indispensable and integral part of the proceedings at the appellate Court; Ogbeide-lhama & Ors v. Iduoriyekemwen & Ors (2023) LPELR-60357(SC); Olorunyolemi & Anor v. Akhagbe (2010) LPELR- 2597(SC).

Before the Record of Appeal is compiled, the registrar would summon the parties to the appeal to settle the documents to be included in the Record of Appeal. However, if any party to the appeal considers that there are additional records which may be necessary in disposing the appeal, he may compile and transmit Additional Record of Appeal. See Order 8 Rules 2 and 6. The input of the parties to the appeal is to ensure that the complete and proper records are before the appellate Court before the appeal is heard.

Where the record of appeal has been duly and properly compiled, authenticated and certified as prescribed by law, there is a presumption of correctness of facts contained therein by virtue of Section 147 of the Evidence Act. However, this presumption is rebuttable. If any party to the appeal disputes the veracity of any portion of the transcribed proceedings or queries the content of the Record of Appeal, it is not treated as a complaint to be trifled with. The party who questions the correctness of the record must formally and frontally attack the record with due notice of such complaint given to the opposing party. It is the duty of the party complaining to swear to an affidavit setting out the fact of the omission and for the affidavit to be served on the trial Judge and/or the Registrar of the Court who would then, if he desires to contest the affidavit, swear to and file a counter-affidavit; Sommer & Ors v. FHA (1992) LPELR-3103(SC); Andrew & Anor v. INEC & Ors (2017) LPELR-48518(SC); Garuba & Ors v. Omokhodion & Ors (2011) LPELR-1309(SC); Anyakorah v. PDP & Ors (2022) LPELR-56876(SC) at pages 21-22, 33-34.

In the absence of any complaint on the veracity of the Record of Appeal, the Court and the parties are bound by that Record of Appeal as compiled and transmitted; Onwuka v. Ononuju (2009) LPELR-2721(SC) Anyakorah v. PDP & Ors (supra). State v. Usman (2021) LPELR-55202(SC) Garuba & Ors v. Omokhodion & Ors (2011).

As was succinctly put by the Apex Court, per Augie, JSC in Patrick v State (2018) LPELR-43862(SC) at pages 31 – 32: It is an elementary principle that the Court, the Parties and Counsel are bound by contents of the record of appeal, which is presumed correct until the contrary is proved; no Court has jurisdiction to go outside the record to draw conclusions that are not supported by it – Texaco Panama Inc. v. S.P.D.C. Ltd. (2002) 5 NWLR (Pt.749) 209 SC; Garuba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145. In other words, no arguments/submissions in a Party’s brief, howsoever ingenious, can make an iota of difference to the contents of a record of appeal. (Emphasis mine).

The record of appeal is meant to serve as a guideline of all that transpired at the lower Court from which it is being transmitted. Therefore, an appellate Court has no power to draw any conclusion which is not supported by the record before it. Any informal assertion whether by oral submission on contained in a brief of argument which contradicts the contents of the record of appeal is inadmissible and will not avail the party; Anyakorah v. PDP & Ors (supra); Ukpong v. Esopndem & Ors (2013) LPELR-21948(CA). In resolving the contentions of the Appellant, the appellate Court can only be assisted by the contents of the cold printed and impartial Record of Appeal, not the assertions of the Appellant. This is more so the case when the veracity of the Record of Appeal was not impeached by the Appellant by depositions in an affidavit. Indeed, there is no formal complaint before this Court from the Appellant with respect to the correctness or otherwise of the Record of Appeal from the lower Court. If I may reiterate, in the absence of any complaint, this Court and the parties are bound by the contents of the Record of Appeal as compiled and transmitted. Therefore, any assertion which purports to contradict the record of appeal will be regarded as being tendentious and will be discountenanced. – Per O. A. Otisi, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act, 2011

2. Court of Appeal Rules

   CLICK HERE TO READ A FULL JUDGEMENT