JULIUS BERGER v. NWAGBARA & ORS
(2020)LCN/14540(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, August 14, 2020
CA/PH/245/2015(R)
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
JULIUS BERGER NIGERIA PLC APPELANT(S)
And
- CHIEF FRIDAY EYINAA NWAGBARA 2. ATTORNEY-GENERAL RIVERS STATE 3. MINISTRY OF WORKS, RIVERS STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN INCOMPLETE RECORD OF APPEAL CAN BE HEARD
It is trite, that once it is clear that the record of appeal is incomplete, it becomes absolutely necessary for the omitted relevant parts of the record to be compiled and transmitted to the Court before the appeal can be heard. There is no law or rule that precludes an appellant from transmitting the omitted parts of the record of appeal to this Court vide an application, such as the instant one. By virtue of the provisions of Sections 15 and 26 of the Court of Appeal Act, the instant application is grossly meritorious, thus ought to be granted by this Court. See DICK VS. OUR AND OIL COY LTD (2018) LPELR-SC. 62/2009 per Rhodes Vivour JSC @ 8-18 paragraphs E-C. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): By the notice of motion filed on October 5, 2018, the Appellant/Applicant herein has prayed for the following reliefs:
1. An order extending time for the Appellant/Applicant to compile and transit Supplementary/Additional Record of Appeal in this appeal and deeming the already compiled and transmitted Supplementary/Additional record as properly compiled and served; and
2. Leave of this Honourable Court for the Appellant/Applicant to adduce fresh evidence on appeal by tendering the application for certification of the aerial photograph showing the general layout of the Eleme Junction Flyover/Interchange, the certified true copy of the aerial photograph with payment receipt, as well as the covering letter accompanying same and utilize them in the Appellant’s Brief.
3. An Order of this Honourable Court deeming the clean copies of the Appellant/Applicant’s application for certification of the aerial photograph aforesaid, the certified true copy of the said aerial photograph with payment receipt for the certification and the covering letter accompanying same as properly
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filed and served.
The said application is predicated upon a total of 9 grounds and a 19 paragraphed affidavit deposed to by Dumka Vincent Yaagua, a legal practitioner in the law firm of Barry Kumbe & Co. the Appellant/Applicant’s counsel.
In reaction to the said application, the 1st Respondent filed a 16 paragraphed counter affidavit on 08/10/2018. The Appellant/Applicant equally filed further affidavits on 09/10/2018 and 16/04/2019 in support of the said application. Consequent upon the directive of the Court, the Appellant/Applicant and 1st Respondent filed their respective written addresses. The Appellant/Applicant’s written Address was filed on 16/04/2019. The 1st Respondent’s written Address was filed on 07/05/2019. The Appellant/Applicant’s Reply on points of law was equally filed on 24/05/2019.
I have accorded a critical, albeit dispassionate consideration upon the nature and circumstances surrounding the instant application, the affidavits in support and the 1st Respondent’s counter affidavit in opposition thereto, as well as the far reaching submissions of the learned counsel contained in the respective
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written addresses in question.
The high point of the grounds upon which the application is predicated is that the counsel had discovered while preparing the Appellant’s brief that:
the record of appeal so transmitted was incomplete as some other processes filed in the lower Court and the record of proceedings of the lower Court, especially the ruling of 27/02/2014… refusing Appellant/Applicant’s application for visit to locus in quo, which is Ground 5 in … Notice of Appeal filed on 04/06/2014, were omitted from the certified record of proceedings given to counsel to the Appellant/Applicant by the Appeals registry of the Rivers State High Court in February 2016.
See ground 2 of the motion.
It is trite, that once it is clear that the record of appeal is incomplete, it becomes absolutely necessary for the omitted relevant parts of the record to be compiled and transmitted to the Court before the appeal can be heard. There is no law or rule that precludes an appellant from transmitting the omitted parts of the record of appeal to this Court vide an application, such as the instant one. By virtue of the provisions of
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Sections 15 and 26 of the Court of Appeal Act, the instant application is grossly meritorious, thus ought to be granted by this Court. See DICK VS. OUR AND OIL COY LTD (2018) LPELR-SC. 62/2009 per Rhodes Vivour JSC @ 8-18 paragraphs E-C.
Hence, having satisfied myself that the instant application is grossly meritorious, same is hereby granted by me in terms of the application.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the opportunity of reading before now the Ruling just delivered by my learned brother I.M.M. Saulawa, JCA. I agree with the reasoning and conclusion that this application is grossly meritorious. I allow the application.
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Appearances:
G.B. NWIKPO, ESQ., with him, T.N. Gboeloh, Esq. and V.D. Yaagua, Esq. For Appellant(s)
D.O. Okoro Esq. for 1st Respondent
A.G. Karibo (Mrs.) DSS office of the Attorney General of Rivers State, with her, R.O. Chikere (Mrs.) for 2nd and 3rd Respondents For Respondent(s)
