REGD TRUSTEES OF ALL CHRISTIAN FELLOWSHIP MISSION v. USMAN & ORS
(2020)LCN/15280(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/A/765/2015
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
REGISTERED TRUSTEES OF ALL CHRISTIAN FELLOWSHIP MISSION APPELANT(S)
And
- HADIZA BALA USMAN 2. WINIFRED ATAWODI 3. MINISTER OF FCT 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
WHETHER OR NOT THERE CAN BE MORE ISSUES THAN THE NUMBER OF GROUNDS OF APPEAL
It is trite that there cannot be more issues than the number of Grounds of Appeal, that will be proliferation and splitting of Grounds of Appeal not acceptable. See SOCIETY BIC S.A. & ORS V CHARZIN INDUSTRIES LTD (2014) LPELR- 22256 (SC) wherein the Apex Court held:
“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137. The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.” Per NGWUTA, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT THE ALLEGATION OF BREACH OF RIGHT TO FAIR HEARING CAN ANNUL A JUDGEMENT
The allegation of breach to right of fair hearing is fundamental and can annul a Judgment. See OGUNDOYIN & ORS V ADEYEMI (2001) LPELR-2335(SC) which held:
“Any judgment or ruling based on breach of the constitutional provision of fair hearing as provided in Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 will not be allowed to stand on Appeal. It is fatal to the Judgment appealed against on that ground. See Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909.” Thus, it was held in a long line of authorities that the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned in a case. It is little wonder that the apex Court has continuously and firmly held that when a represented party is not heard or given the opportunity of being heard in a case, the principles of natural justice are abandoned. See OTAPO V. SUMNONU (1987) 2 NWLR (PT.58) 587 and OLATUNBOSUN V. NISER (1988) 3 NWLR (PT.80) 25.
It has been settled that the rule of fair hearing is not a technical doctrine but one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding a matter, had in fact been given an opportunity of a proper hearing. Once an Appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside. PER NIMPAR, J.C.A.
WHETHER OR NOT AN AMENDMENT OF PLEADINGS IS OPEN-ENDED
The settled rule in amendment of pleadings is straight forward, amendments generally and as allowed by the rules of Court can be made even at appellate level but it is not open ended and is circumscribed by certain factors, see YUSUF V ADEGOKE & ANOR (2007) LPELR-3534(SC) which held thus:
“…the law recognises a possible lapse or failure of the human memory, it has worked out procedures for amendment of pleadings to accommodate any possible lapse or failure. But the amendment of pleadings is not open ended, in the sense that an applicant can always succeed in his application for amendment. For instance, where an application for amendment is designed to overreach the respondent, the Court will not grant the application. This arises when the applicant cleverly anticipates the core of the case of the respondent and seeks the amendment to frustrate the case with the result that the respondent fails at the end of the day. An overreaching conduct is a circumventing conduct to outwit the adverse party by cunning or artifice. It is designed to defeat the object or objective of the respondent’s case by going too far, in the sense of destroying the core or fulcrum of the respondent’s case.”PER NIMPAR, J.C.A.
WHETHER OR NOT THE COURT MUST EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
The law is loud that a Court of law must exercise its discretion judicially and judiciously. In EZE V ENE (2017) LPLER-41916(SC) the Supreme Court on the wide latitude of discretion which the trial Court has in matters of amendment of pleadings held thus:
“The general principle of law is well settled that an amendment of pleadings can be made at any time, before judgment. However, and notwithstanding the wide latitude, the intention is not to leave the consideration open-ended and without proper control so as to create a flood gate of an abuse of discretion. The case of Imonikhe v. A. G. Bendel State (1992) 7 SCNJ 197 at 207-208 per Nnaemeka – Agu, JSC is relevant wherein this Court said:- “Although, by the rules, an amendment to the pleadings can be made at any stage of the proceedings, different considerations apply depending on whether the amendment is being sought before or after the close of the evidence by the parties. Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible, as evidence on an issue which was not pleaded or a claim not on the record is strictly admissible. But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premise that evidence in support of it is already on record, so that it is necessary and in the interest of justice to allow the amendment in order to make the pleadings or the claim accord with evidence already on record. The rationale of it is that such amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties.”PER NIMPAR, J.C.A.
WHETHER OR NOT THE COURT CAN DETERMINE AN APPEAL WITH AN INCOMPLETE RECORD
This is a Court of record, the Court cannot determine an Appeal with incomplete record, see EKPOMUPOLO & ORS V EDREMODA & ORS (2009) LPELR-1089 (SC) which held thus:
“It is now firmly settled that it is the duty of an Appellate Court, not to hear an appeal on incomplete Records. See the case of Chief Okochi & 2 Ors. v. Chief Animkwoi & 2 Ors. (2003)18 NWLR (pt.25) 1; (2003) 2 SCNJ 260 @ 271. This is because, the Records of proceedings, bind the parties and the Court until the contrary is proved. See the cases of Sommer v. Federal Housing Authority (1992) 1 NWLR (pt.219) 548; (1992) 1 SCNJ 73; Orugbo & Anor v. Bulari Una & 10 Ors (2002) 9 SCNJ 12; (2002) 9-10 S.C. 61; Chief Fubara & Ors. v. Chief Minimah & Ors. (2003) 5 SCNJ 142@ 168. This is again because, there is a presumption of genuineness which of course, is not absolute but is rebuttable. See the case of Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251 @ 272; (2003) 12 SCNJ 158 @ 172. This again is because a Court is entitled to look at and refer to the contents of the Records in consideration of any matter before it. See the cases of Funduk Engineering Ltd. v. McArthur (1995) 2 NWLR (pt. 392) 640 @ 652; (1995) 4 SCNJ 240 and Texaco Panama Incorporation (Owners of the Vessel “M.V” Star Tulsa) v.Shell Petroleum Development Corporation of Nig, Ltd. (2002) 2 SCNJ 102 @ 118-Per Kalgo, JSC.”PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal Capital Territory, Abuja High Court presided over by HON. JUSTICE O. A. ADENIYI and delivered on the 20th day of March, 2015. Dissatisfied with the decision, the Appellant who was the Claimant at the trial Court filed a Notice of Appeal on the 1/4/2015 setting out 2 Grounds of Appeal.
Facts relevant to the Appeal are straight forward and amenable to a brief summary. The Appellant as claimant initiated the suit by way of a Writ of Summons which sought the following reliefs:
1. A declaration that the Plaintiff is the allottee of Plot 261 in Cadastral Zone A06, Maitama, and that Plot 4111. 2978 and 3560 abuts Plaintiff’s Plot 261 in Cadastral Zone A06, Maitama.
2. A declaration that:
a. Plot 4111, Cadastral Zone, Maitama, allotted to Hadiza Bala Usman (1st Defendant), Plot 2978 Cadastral Zone, Maitama, allotted to Hauwa Sule Umaru (2nd Defendant); and Plot 3560 (renumbered as Plot 4593) Cadastral Zone, Maitama, allotted to Winifred Atawodi, for residential purposes and which abuts Plot 261 were unlawfully allocated as the said Plots 4111, 2978 and 3560 were designated as Green areas in the Abuja master Plan and such allocation by the 4th and 5th Defendants is a contravention of the Abuja master Plan, Urban and Regional Planning Act as well as the extant Land Use Regulations.
3. A Declaration that the purported allocation of Plot 4111 Cadastral Zone, Maitama, allotted to Hadiza Bala Usman; Plot 2978 Cadastral Zone, Maitama, allotted to Hauwa Sule Umaru; and Plot 3560 (renumbered as Plot 4593) Cadastral Zone, Maitama, allotted to Winifred Atawodi, which said plots house within them the sewage system, water main, inspection chambers and the underground electrical cable serving the entire neighborhood and Plot 261, is illegal, null and void, as same is contrary to Abuja master Plan, the Urban and Regional Planning Act, as well as Land Use Regulations.
4. A declaration that the purported allocation of Plot 4111 Cadastral, Maitama, allotted to Hadiza Bala Usman; Plot 2978 Cadastral Zone, Maitama, allotted to Hauwa Sule Umaru; and Plot 3560 (renumbered as Plot 4593) Cadastral Zone, Maitama, allotted to Winifred Atawodi for residential purpose or all by the 4th and 5th Defendants are at variance with the Abuja Master Plan designating same as Green Areas and this will cause problems and master Plan and flagrant disregard for the Development Control Regulations by the 1st, 2nd and 3rd Defendants’ development and building erections on top of the manholes or fencing them in and fencing the purported plot without the requisite setbacks, is laying ground for serious hazards, especially health hazards in the neighbourhood and the said allocation of the said plots to the 1st, 2nd and 3rd Defendant is illegal, null and void for same.
5. An Order of the Court setting aside the allocations of;
a. Plot 4111 Cadastral Zone, Maitama, allotted to Hadiza Bala Usman;
b. Plot 2978 Cadastral Zone, Maitama, allotted to Hauwa Sule Umaru;
c. Plot 3560 (renumbered as Plot 4593), Cadastral Zone, Maitama, allotted to Winifred Atawodi, For being illegal, null and void as same is contrary to Abuja Master Plan, the Urban and Regional Planning Act as well as Land Use Regulation.
6. An Order of perpetual injunction restraining the Defendants, whether by their agents, servants, privies or whomsoever from entering the said land, constructing or purporting to construct any structure on the said plots or any manner of alteration on the said plots other than planning of trees. The Appellant a religious organization and the allottee of Plot 261 in Cadastral Zone A06, Maitama and her gravamen of the claim is that plots of land numbered as Plots 4111; Plot 2978 and Plot 3560 (later renumbered as Plot 4593) granted by the 4th Defendants respectively, and which plots abuts the Plaintiff’s Plot 261, housed the sewage system, water mains, inspection chambers and the underground electrical cables servicing the entire neighbourhood and also designated as green areas in accordance with the Abuja Master Plan.
The Appellant contended that the allocation of these plots to the 1st -3rd Respondents for residential purposes by the 4th Defendant is at variance with and in contravention of the Abuja master Plan, the Urban and Regional Act and Land Use Regulations, consequently illegal, null and void thus the claim.
The claim was denied by the Respondents and the 1st Defendant and 3rd Respondents filed counter claim along their statements of defence. The matter went to full trial and upon a consideration of the case; the trial judge dismissed the claim of the Appellant and thus the Appeal.
The Appellant’s brief of Arguments settled by ISAAC OKPANACHI ESQ., is dated 30th June, 2017 filed on the same day and it donated 2 issues for determination as follows:
i. Whether there is any exception to the legal principle that once a claim is declaratory in nature, the plaintiff can only succeed on his own cogent and credible evidence.
ii. Whether the learned trial Judge accorded the Appellant fair hearing in the trial of this suit considering his resolute determination not to visit the locus in quo, his refusal to reopen the Appellant’s case and his admission of 15 unpleaded documents, his open anger at Appellant and his compelling the Appellant’s new Counsel to proceed with the hearing on the first day he appeared in the case.
The 1st Respondent’s brief settled by ADETOLA OLULENU ESQ., is dated 14th day of June, 2018 and filed on the 2/4/2019. It adopted the issues formulated by the Appellant and included an additional issue for determination as follows:
Whether the Appellant’s Appeal ought to be dismissed for lacking in merit?
The 2nd Respondent’s brief settled by AKIN ADEWALE ESQ., dated 17th July, 2017 and filed on the 27/7/2017 and it donated 2 issues for determination thus:
1. Whether the Appellant proved its case on preponderance of evidence to warrant Judgment in its favour.
2. Whether the Appellant was given fair hearing at the trial.
The 3rd & 4th Respondents’ Brief was settled by G.A. IDIOGBONYA ESQ., and is dated 8th May, 2019 filed on the 3rd of June, 2019 and it also formulated 2 issues for determination as follows:
i. Whether the learned trial Judge was right to have dismissed the Appellant’s claim at the Trial Court.
ii. Whether the Trial Court accorded the Appellant fair hearing having regard to the circumstances of this case at the Trial Court.
I have perused the Notice of Appeal, the Record of Appeal and the briefs filed by all Learned Counsel before the Court and I observed that there are only 2 Grounds of Appeal from which the Appellant formulated 2 issues but the 1st Respondent after adopting the 2 issues donated by the Appellant, he went on to add another issue for determination making it 3 issues from 2 Grounds of Appeal. It is trite that there cannot be more issues than the number of Grounds of Appeal, that will be proliferation and splitting of Grounds of Appeal not acceptable. See SOCIETY BIC S.A. & ORS V CHARZIN INDUSTRIES LTD (2014) LPELR- 22256 (SC) wherein the Apex Court held:
“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137. The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.” Per NGWUTA, J.S.C.
Having gone beyond the number of Grounds of Appeal, the 1st Respondent’s additional issue must be struck out, he has adopted the issues formulated by the Appellant and he is so bound. He has no issue of his own. I shall adopt the issues formulated by the Appellant because all the issues presented by the 2nd- 4th Respondents are all asking similar questions and the only exception being the manner they are formulated. The Appellants issues for determination shall be determined all at seamlessly.
APPELLANT’S SUBMISSIONS:
The Appellant points out that from the onset, the first of the three issues the trial Judge determined in his Judgment is “whether or not the Plaintiff has locus standi to have instituted the instant suit’’. The trial Judge resolved the issue in favour of the plaintiff as covered in pages 428-429 of the Record of Appeal. The Appellant states that the trial Judge did not protect the Plaintiffs’ right, neither did he uphold the Abuja master plan. His reasons for not upholding the Abuja master plan is stated on page 431 of the Record of Appeal. They cited the case of UNIVERSITY OF ILORIN V RASHIDAT ADESINA (2010) 9 NWLR (PT. 1199) 331 at 403 where this Honorable Court contradicts the position of the trial Judge and his reasons for dismissing the Appellants suit. This was also backed by a Judgment in the case of declaration of land betweenAKINOLA & ORS V OLUWO & OR (1962) ALL NLR (PT. 1) 225 at 228-229.
The Appellant states that it is clear that in declaratory actions where the evidence of the defence supports the case of the Plaintiff, the Court would use that evidence to establish the plaintiffs’ case. The Appellant states that the trial Judge needs to have decided whether the plot 4111, 2978 and 3560 (renumbered 4593) were originally a green area having public utilities allocated now as residential plots. All the evidence given by the Defendant which includes;
1. The letter of revocation of plot 3560 dated 6/7/2006.
2. The letter of revocation of plot 4111 dated 5/3/2009.
3. Exhibit DW4 is a quit notice from 5th Defendant showing that the plot should not be developed.
4. Exhibit DW5 is another quit notice dated 23/3/2009 asking the 1st Defendant to quit the plot because the development of the plot was illegal. This came after;
a. Settlement of bill from AMMC dated 18/11/2018 exhibit DW6.
b. Conveyance of building plan approval- exhibit DW7
c. Letter dated 16/1/2009
d. The letter dated 12/2/2009 i.e. Exhibit D10 and D10a, these are the letter and maps claiming there are no unity manholes and chambers on these plots.
e. The minister of FCT revoked the 1st Defendants’ right of occupancy on 5/3/2009. The plot was a green area.
5. On the 9/11/2010 the 4th and 5th Defendant filed a witness statement on oath to which they attached 8 exhibits. When they amended their statement of defence and filed another witness statement on oath they left out all the 8 exhibits.
6. This memo was dated 20/1/2009. But on the 5/3/2009, the Defendant by a letter revoked the right of occupancy granted the 1st defendant, on the ground that it was a distortion of the Abuja master plan.
The 4th Defendant revoked the 1st Defendants’ allocation on 5/3/2009 after earlier revoking the right of the 3rd Defendant on 6/7/2006. The 3rd and 4th Defendant never averred that their rights were revoked or restored. Professional advice came in form of EXHIBITS D10 AND D10A and the memo, yet the 1st Defendants’ right was revoked, and without any expert opinion, the right is restored. The memo pointed out two problems with the plot 4593 formally 3560. One of the problems is of double numbering was resolved, the second problem of green area was not resolved, yet the 4th Defendant restored the 3rd Defendants rights. The Appellant states that this is an abuse of power and that the 4th and 5th Defendants who should be concerned about the distortion of the Abuja master plan are the masterminds of the distortion. See the case of NGIGE V OBI (2006) 14 NWLR (PT.999) 1 at 196-197. The Appellant states that what the Court of Appeal condemned in this case is what the Minister of FCT is trying to do in this case.
The Appellant submits that the first reaction of the 4th Defendant reflects the true position, being that the plot was a green area and that the deliberation move by the 4th and 5th Defendants to keep their exhibits away from the Court and the vehement opposition to visit the locus in quo belies their point.
The Appellant referred to the documents attached to the 4th and 5th Defendants witness statement on oath dated 9/11/2010, and states that the trial Court can refer to the documents in its Judgment though they were not tendered in evidence. See the case of AKINOLA V. VC UNILORIN (2004) 11 NWLR (PT.885) 616 at 650 and AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR (PT 594) 170 at 182-183. The Appellant states that they believe this Honorable Court will not fault the Court of Appeal and the Supreme Court in these two authorities that in writing a Judgment the trial Court can look at documents in its file though not tendered.
The Appellant therefore urges this Honorable Court to rule this characterization of the Plaintiff unjustified and absolutely uncalled for. The plaintiff applied for the plot not to build permanent structures on it but to use as a park it was originally meant for. The Appellant was only able to call one witness before her case was foreclosed on 19/03/12. He adopted his witness statement on oath on 15/4/10. His witness statement on oath is on page 13-14 of the Record of Appeal.
The subpoena had subpoenaed the following documents as seen in pages 163-164:
1. Guidelines or rules for building plan approval
2. Requisite setbacks from utility lines
3. The original files of the three plots
4. The map of cadastral zone A06 showing land use in 1990, 2000, 2003 and 2009.
The Appellant further states that the staff of the 4th and 5th Defendant refused to obey the subpoenas for over a year. The Appellants’ new counsel did not commence contempt proceedings against the Director of Development Control. The Court foreclosed the Appellants’ case when no witnesses were called.
The Appellants states that they have shown that the trial Judge did not advert his mind to the exception to the rule in declaratory claims that a plaintiff only succeeds on the strength of his own evidence. They have also shown that the trial Judge view that the Appellant acted mala fides in petitioning the 1st – 3rd Respondents is not justified. On this premise, the Appellant urge the Court to set aside the Judgment of the Lower Court and grant their claims.
The Appellant submitted that learned trial Judge denied her fair hearing and showed open bias against her in five clear instances;
The first is the resolute refusal of visit to the locus in quo. The Appellant submitted that on the 24/5/2010 the Appellant filed a motion to move the Court to visit the locus in quo. The trial Judge during the arguments shared his view, that the motion was premature. Based on this reason, the Appellants Counsel withdrew the motion and it was struck out. The Appellant on 3/5/2012, the Appellant filed another motion asking the Court to reopen her case and to visit the locus in quo. The Court dismissed the Plaintiffs’ application without a reason (Page 381 of the Records of Appeal). The Appellant states that the Court dismissed the motion for abuse of Court process and that the Court knew the Appellant did not put in all its evidence before its case was foreclosed but he resolutely refused to visit the locus. The trial Judge gave reasons for not visiting the locus in quo in his judgment (page 444 of Record of Appeal).
The Appellant went ahead to cite a Supreme Court case of UKAEGBU V NWOLOLO (2009) 3 NWLR (PT. 1127) 194 at 238. This highlights the purpose of a visit to the locus in quo. The Appellant further submitted that the trial judge ought not to look at the evidence of one party alone to clear doubt and that the trial Judge clearly denied the plaintiff fair hearing in resolutely refusing to clear the doubt between the evidence of the parties by a visit to the locus in quo.
The next are of complaint is the contention of the Appellant on the refusal of the trial Judge to reopen the Plaintiff’s case after amendments granted 3rd – 5th Defendants and after the close of the case for the Appellant.
The trial Judge foreclosed the plaintiffs’ case because of the delays occasioned by the failure of persons subpoenaed from the Development Control Department of the 5th Defendant to attend Court and produce certain documents. The Appellant states that the Court came to a firm conclusion that the Appellant did not want the case to proceed and therefore foreclosed the plaintiffs’ case when the witnesses have not been called. The Appellant was only allowed to call one witness, which one witness evidence is essentially that the green area allocated to the 1st -3rd Defendant has a plethora of public utilities in it. The Appellant states that this is the reason they moved the Court three times to visit the locus in quo to settle this controversy. The Appellant further states that after foreclosing their case, the trial Judge granted the 3rd Defendant leave to amend her statement of defence and counterclaim in which the introduced new facts. The Court granted the 4th and 5th defendants leave to amend their Joint statement of defence. The trial Judge in granting the 3rd defendant leave to amend her statement of defence said;
“The plaintiff and indeed all parties shall be entitled to file consequential amendments or responses to the 3rd defendant amended statement of defence and counter claim within 7 days of being served with the said process.”
However, when the Appellant filed an amended reply and brought a motion to reopen its case and visit the locus in quo and call further evidence, the Court dismissed its motion as an abuse of process. They cited the case of SALAKO V. WILLIAMS (1998) 11 NWLR (PT.574) 505 and from this case, it can be clearly seen that allowing the 3rd – 5th Defendants to amend their defence after the close of the Plaintiffs case introducing new facts and refusing the Plaintiff leave to counter those facts, the learned trial Judge denied her fair hearing.
Another aspect complained about is that the Trial Court admitted 15 documents which were not pleaded or frontloaded. The Appellant states that her counsel was changed to a Junior Counsel after the Senior Counsel to the suit fell ill and the Junior Counsel was not able to handle the case, as she failed to start contempt proceeding after the Director of Development Control disobeyed and refused to attend Court, this was even after notice to produce the documents has been applied for from the foundation of the case. The Appellant states that the Judge closed his eye to the tendering of the 15 documents not pleaded by the 1st Defendant. This list of the 15 documents is on page 309 of the Record of Appeal. Contrary to the rules of the Court, the 1st Defendant never frontloaded nor asked the Appellants counsel if she ever saw the documents before they were tendered. All 37 documents were tendered unopposed and 15 of them were not pleaded.
The Appellant further argued that the new counsel was compelled to proceed with hearing the first day he appeared in Court. The Appellant states that she was also led to change counsel due to the foreclosure of her case. The new counsel, Mr. Okpanachi appeared for the Appellant and informed the Court that he had just been briefed and had also just asked for the Record of Proceeding. He asked for time to study the case before proceeding with the hearing, the learned trial Judge refused the application for adjournment that the case must proceed as scheduled.
The Appellant submitted that the Court was hostile to the Appellant and the counsel from that day until the Judgment was delivered.
The Appellant further submitted that the 4th and 5th Defendants attempted to suppress evidence. Arguing further, Appellant contended that the 4th and 5th Defendants filed a joint witness statement of oath to which they attached 8 Exhibits. Three of the exhibits state that the plot allocated to the 1st -3rd Defendants was a green area. However, with the leave of Court, they filed another witness statement on oath and dropped all the exhibits attached to the earlier statement. This act was pointed out by the Appellant that they were trying to suppress evidence from the Court. The Appellant urged the trial Court to look at those documents and come to the conclusion that the plots allocated were a green area citing Supreme Court authorities. The trial Judge did not condemn the practice but rather said the Appellants counsel was trying to make the Court go on a futile search for evidence.
The Appellant submitted that the Judgment of the Lower Court does not conform to the authorities of fair hearing, citing the case of DIKO V IBADAN SOUTH WEST LG (1997) 2 NWLR (PT. 486) 235 at 246.
Finally, the Appellant submitted that the five instances of unequal treatment by the trial Judge to the Appellant are clear and therefore the Judgment of the Lower Court should be set aside.
1ST RESPONDENT’S SUBMISSIONS:
The 1st Respondent submitted that the Appellants counsel argument on this point is highly misconceived and does not support the evidence tendered. The Respondent states that the Appellant’s counsel ignored or failed to compile the exhibits tendered by the 1st and 3rd Defendant, just as he failed to also attach further amended statement of defence. The Respondent further submitted that it is trite law that declaratory reliefs are not granted as matters of course but upon well established facts or facts in prove of the claim before the Court. See the case of NWOKIDU & 3 ORDS V. OKANU & ANOR (2010) 1 S.C (Pt. 1) 164.
The Respondent submitted that the trial Judge was right in his judgment as the Record of Appeal in pages 347 -348 where the PW1 admitted that the 4th Defendant has authority to designate land for whatever purpose, the Appellant in page 351 requested to use the land for the church’s private purpose and not because it is a green area. The Respondent further submitted that the Appellant owns numerous admissions and had not only made her claims spurious but also a mere grand standing. Relied on KOPEK CONSTRUCTIONS LTD V. EKISOLA (2010) 1 S.C (Pt.1) 1 at 31.
The Respondents states that the argument of the Appellant that the trial Court contradicted itself when it took a different position instead of aligning itself with the exception laid down in the cases cited in paragraphs 4.1.3 and 4.1.4 of the Appellants brief of argument is devoid of merit. See OYENEYIN & ANOR V. AKINKUGBE & ANOR (2010) 1-2 S.C 1 at 34. The Respondent submitted that it is not the responsibility of the Lower Court to fish for evidence to support the Appellants case, as there was no evidence to show that the allocation of plots to the 1st – 3rd Defendants were done in contravention to the Abuja master plan.
The Respondent further states that the Appellants argument only made a heavy weather of the fact that the 3rd Respondents action at restoring the rights and interest of the 1st – 3rd Defendants over the plots in disputes is an act of approbating and reprobating and the law shouldn’t allow that. The Respondents submitted that the cases cited by the Appellant in this regards only refers to where a party reprobates and approbates before a competent Court of law and not where a party upon discovering that he had committed a mistake of fact and seeks to remedy same, cannot be said to constitute an act of approbating and reprobating.
The Respondent states that the Appellants’ issue 2 appears to be a mixture of three different issues and unfortunately the Appellant failed to tie any of these issues to any of the grounds of appeal just like the first issue. They further submitted that the decision of the Lower Court with regards to the issue of visit to the locus in quo, it is more or less an obiter dictum and does not form part of the ratio decidendi. Citing SHELL PETROLEUM DEV. CO V. FARAH & CO (1995) 3 NWLR (Pt. 382) 148 at 183 and EZEOKEKE & ORS V. UGA & ORS (1962) 2 SCNLR 199.
The Respondent urges the Court to discountenance Appellants’ Counsels’ argument as it is devoid of merit. The Respondent states that the issue concerning the 15 documents not pleaded and the issue of the 4th and 5th Defendants suppressing evidence are all new issues and they were never raised before the Lower Court. The Respondent submits that these are incompetent issues and ought to be struck out without this Court making reference to them.
Finally, the Respondent submitted that the Appellants Appeal be dismissed as she has not adduced sufficient grounds in law or equity to warrant this Court interfering with the decision of the Lower Court.
2ND RESPONDENT’S ARGUMENTS
The 2nd Respondent states that the Appellant in proving his case called a witness Rev. Godwin Bojuto (PW1) who disposed to witness statement on oath on 20/7/2010. PW1 tendered some documents namely the incorporation certificate of the Appellant marked EXHIBIT P2 and some letters written by the Appellant to the 3rd Defendant requesting that the plot formerly belonging to NSPMC and latter allocated to the 1st & 2nd Respondents be allocated to them were marked as EXHIBIT P3 & P4. The registration document of the Appellant from CAC and C of O from AGIS Abuja are public documents and what PW1 tendered with respect to these were mere photocopies which were not certified. Although the 2nd Respondent didn’t object to this, but nonetheless, the said documents are not admissible. Section 90 (1) (c) of the Evidence Act which provides that only secondary evidence of a public document is a certified true copy of the document and no other secondary evidence is admissible. In view of this, the Respondent urges the Court to expunge EXHIBITS P1 & P2.
The 2nd Respondent submitted that the veracity of evidence of a witness is through cross-examination and during the cross-examination of PW1, about 13 facts were established. From the foregoing evidence of the sole witness for the Appellant, it was mainly based on hearsay and also on ipsi dixit of the witness as to the allegation that the 2nd Respondent plot was a green area. Further, the 2nd Respondent states that the prayers of the Appellant were mainly declaratory hence the have a heavier burden of proof in such situation as the onus of proof rests squarely on the Appellant. See ABRAHAM OLABANJI & ANOR V. SALAMI ADEOTI OMOKEWU & ORS (1992) 27 SCNJ 266.
The 2nd Respondents went further to state two ways the Appellant is required to prove through credible evidence. The burden of proof rest on the Appellant and it has to be done through credible and reliable evidence which not be based on mere ipsi dixit of their PW1 or on hearsay evidence and the urge the Court to so hold so. Section 38 of the Evidence Act prohibits admission of hearsay evidence in the Court and therefore the testimony of PW1 during cross examination where he started that the 2nd Respondents plot was on a green area and that there were manholes are all hearsay as he admitted to it. The 2nd Respondent urges the Court to expunge this inadmissible hearsay evidence.
The 2nd Respondent further states that their plot is about 3944.93m2 in size while those of the 1st Respondent is also of various measurements, this shows that even if there are manholes within the plots they would be within infinitesimal portion of the plot. The Appellant has not proved before this Court the damages it would suffer if the 2nd Respondent is allowed to use her plot as allocated to her by the 3rd Respondent who has power and authority to allocate plots to individuals and organization within FCT. It is their submission that the Appellant has not proved its case to entitle to any of its prayers before the trial Court, and that the prayer for injunction can only be granted if the 2nd Respondent is trespasser on plot No. 4593 Maitama or if the Appellant is the owner of the said plot. In the certificate of occupancy granted to the 2nd Respondent (EXHIBIT D36), the purpose of which the plot is allocated to her is for residential purpose and ordering her to use it for the purpose of tree planting only amounts to change of use which EXHIBIT D36 prohibits. The Appellant submitted that before injunction can be ordered against the 2nd Respondent in this case, the Appellant must prove that she is a trespasser on the plot. Relied on UNITED TRADING & TRANSPORT COMPANY LTD & ORS (1992) 11/12 SCNJ 234. The 2nd Respondent further submitted that the Appellant has no right to title to be protected with respect to the 2nd respondents plot and for this their prayer of injunction should not be granted.
The 2nd Respondent further submitted that the evidence of Hajia Nuhu Ozaeyiza Hannatu a staff of the 4th Respondent who is in custody of the master plan is the one to be relied upon on the issue of whether the 2nd Respondents plot is a green area or not. Further, the evidence of the witnesses of the 3rd and 4th Respondents puts to rest all the claims of the Appellant and the urge the Court to hold so. The 2nd Respondent states that it is not true that the 3rd and 4th Respondents approbate and reprobate in revoking and restoring 2nd Respondents plot, the revocation of her plot was due to the mix-up in the plot numbering.
The 2nd Respondent states that on the allegation that corruption was due to fraud/corruption, the Appellant must prove beyond reasonable doubt because it is a criminal offence, but the Appellant failed to do so in this case.
Finally on the issue of determination, the 2nd Respondent submitted that the Appellant has not proved its case before the Court and same ought to be dismissed as the trial Court did.
The 2nd Respondent states that the main plank of the denial of fair hearing as argued by the Appellant are:
i. Visit to the locus in quo;
ii. Failure of the subpoenaed witness to appear in Court and closing the case thereafter.
The Appellant applied for a visit to the locus in quo, and we submitted that the visit would not have changed anything in their favour because the dispute has nothing to do with issue of boundary of the plot. The Court can only decide on the issue of whether the plot of the 2nd Respondent is allocated in violation of Abuja master plan. The 2nd Respondent submitted that the Appellant’s insistence on visit to locus would serve no useful purpose and was meant to waste the time of the Court, relied on NWANKPU V. EWULU SUIT NO. SC. 76/1992; (1995) NWLR (Pt.407) 269 at 296.
Accelerated hearing was granted after injunction was ordered against the Respondent. Thereafter, the Appellant sought for adjournment on 5 different occasions. At the last adjourned date, the Court made it clear that it may oblige to close the Appellants’ case in the event that she failed to produce her witnesses on subpoena. The 2nd Respondent states that justice should not be seen to have been fairly dispensed if the Court allows the Plaintiff to continue to hold the progress of the suit to ransom.
The forgoing of the Trial Judge is in order considering the reason for the subpoena, which was the failure of the Appellant to make the 3rd and 4th Respondents’ as parties to the case. See page 352 para 1-4 of the Record of Appeal to see how the matter was resolved in the trial Court. The 2nd Respondent further submitted that seeking endless adjournments for subpoenaed witness to come to Court was meant to delay the case and cause hardship on the Respondents and the trial Court was right to have foreclosed the Appellants’ case for same reason. The 2nd Respondent states that the Appellant having criticized the trial judge is in bad faith and is unfair and they therefore urge the Court to hold so.
Finally, the 2nd Respondent states that the trial judge dismissed the Appellants suit and awarded N1,000,00.00 (ONE MILLION NAIRA) cost in favour of the 2nd Respondent. The Appellant has not paid the said cost of N1 Million and it’s clearly contempt of the Lower Court and that if the Appeal fails, punitive cost of N5,000.000.00 (Five Million Naira) be awarded against the Appellant in favour of the 2nd Respondent.
3RD AND 4TH RESPONDENTS SUBMISSIONS:
The 3rd & 4th Respondents submitted that the trial Judge was right to have dismissed the Appellants’ case having regard to the evidence adduced at the Trial Court by the Appellant. The Appellants claims/reliefs as endorsed on its amended Writ of Summons and averments in paragraphs 6, 9, 10, 11, 12 (3) (4) (5) of its statement of claim. The Appellant has the burden of proving the averments in these paragraphs with credible and material evidence. See page 6-9 of the Record of Appeal. From the above paragraphs, the Appellant had the burden to prove;
a. That plots 4111, 2978 and 3560 (renumbered as plot 4593) were lawfully and illegally allocated to 1st, 2nd and 3rd Respondents respectively.
b. That the allocation to the 1st – 3rd Respondents is contrary to and at variance to the Abuja master plan, urban and regional planning act and land use regulation.
c. That plots 4111, 2978 and 3560 (renumbered as plot 4593) housed utilities servicing plot 261 and other neighboring plots at Maitama cadastral zone A06, Abuja.
d. That the said plots falls into and have been designated as green areas by the Abuja master plan.
It was further stated that he who asserts has the onus of proof. See AFRICAN CONTINENTAL BANK PLC V. EMOSTRADE LTD (2002) 8 NWLR (PT 770) 500 AT 515.
It is submitted that having regard to the averments in the Appellants amended statement and the reliefs sought therein, the Appellant failed woefully to lead credible and material evidence. The trial Judge held that averments in pleading do not constitute evidence of proof. Further, the Respondent submitted that the pieces of evidence extracted from PW1 under cross-examination clearly contradict the position of the Appellant in her amended statement of claim. Taking into cognizance that the claims at the trial Court are declaratory in nature, the Appellant has the burden of proving to the satisfaction of the trial Court her entitlement to the declaratory reliefs with credible evidence even if the 1st – 4th Respondents admitted the Appellants’ claims and relied on SENATOR NKECHI JUSTINE NWAOGU V. HON. EMEKA ATUMA (2013) ALL FWLR (PT. 693) 1893.
It is the contention of the 3rd and 4th Respondent that the Appellant having failed to establish her entitlement to the declaratory reliefs with credible and material evidence, the Appellant cannot rely on the case of the 3rd and 4th Respondent in proof of declaratory reliefs in the trial Court. The Respondents submitted that the principle or position of law in the cases cited by the Appellant in her brief of argument is only applicable where the Appellant has established or proved her entitlement to the declaratory reliefs by credible evidence to the satisfaction of the Court, otherwise the Court is at liberty to dismiss the case.
The Respondents states that the Appellant in an attempt at misrepresenting facts, deliberately reproduced paragraph 4 of the memo and ignored the paragraphs’ of the same memo wherein the withdrawal of the 2nd Respondents plot were explained. It is their contention that the content of the said memo do not support the position and submission in the Appellants brief.
Finally the 3rd & 4th Respondents submitted that their case at the trial Court did not support the Appellants case or contained evidence on which the Appellant can rely and therefore urge the Court to resolve this case in their favour and affirm the decision of the trial Court.
On issue 2, the 3rd & 4th Respondents submitted that the trial Judge accorded the Appellant fair hearing having regard to the circumstances of this case at the trial Court. See NAFDAC V. ONWUKA (2014) 4 NWLR (PT 1398) at 620-621.
The Respondents submitted that the Appellant made a deliberate attempt to mislead this Court, as her application was heard and the application to visit the locus in quo was dismissed by the trial Judge. On the issue of 15 documents not pleaded, they submitted that when DW1 testified, the Appellant was ably represented by a counsel. When the documents were sought to be tendered, her counsel informed the Court that she had no objection to the admissibility of the documents.
Finally, the 3rd & 4th Respondent urges the Court to resolve this issue in their favour; to dismiss this Appeal and affirm the decision of the trial Judge.
RESOLUTION
Having adopted the issues distilled by the Appellant, the second issue raises a fundamental question which could have an adverse effect on the Judgment if found to be true. The allegation of breach to right of fair hearing is fundamental and can annul a Judgment. See OGUNDOYIN & ORS V ADEYEMI (2001) LPELR-2335(SC) which held:
“Any judgment or ruling based on breach of the constitutional provision of fair hearing as provided in Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 will not be allowed to stand on Appeal. It is fatal to the Judgment appealed against on that ground. See Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909.” Thus, it was held in a long line of authorities that the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned in a case. It is little wonder that the apex Court has continuously and firmly held that when a represented party is not heard or given the opportunity of being heard in a case, the principles of natural justice are abandoned. See OTAPO V. SUMNONU (1987) 2 NWLR (PT.58) 587 and OLATUNBOSUN V. NISER (1988) 3 NWLR (PT.80) 25.
It has been settled that the rule of fair hearing is not a technical doctrine but one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding a matter, had in fact been given an opportunity of a proper hearing. Once an Appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside.
The contention with regards to the allegation that fair hearing was breached is in relation to the fact that after the close of the case for the Appellant, the Respondents were allowed to amend their statements of defence and the Court below allowed the Respondents to the motion the right of a consequential amendment if they so desired. In consequence the Appellant amended its Reply to the statement of defence and brought an application to reopen its case and call additional witnesses with an additional prayer for the trial Court to visit the locus inquo. The application was dismissed. The settled rule in amendment of pleadings is straight forward, amendments generally and as allowed by the rules of Court can be made even at appellate level but it is not open ended and is circumscribed by certain factors, see YUSUF V ADEGOKE & ANOR (2007) LPELR-3534(SC) which held thus:
“…the law recognises a possible lapse or failure of the human memory, it has worked out procedures for amendment of pleadings to accommodate any possible lapse or failure. But the amendment of pleadings is not open ended, in the sense that an applicant can always succeed in his application for amendment. For instance, where an application for amendment is designed to overreach the respondent, the Court will not grant the application. This arises when the applicant cleverly anticipates the core of the case of the respondent and seeks the amendment to frustrate the case with the result that the respondent fails at the end of the day. An overreaching conduct is a circumventing conduct to outwit the adverse party by cunning or artifice. It is designed to defeat the object or objective of the respondent’s case by going too far, in the sense of destroying the core or fulcrum of the respondent’s case.”
In an application for amendment of pleadings where the respondent opposes, a trial Judge is called upon to reconcile two competing interests, if possible; a judicial function which requires the careful exercise of his discretionary powers. The law is loud that a Court of law must exercise its discretion judicially and judiciously. In EZE V ENE (2017) LPLER-41916(SC) the Supreme Court on the wide latitude of discretion which the trial Court has in matters of amendment of pleadings held thus:
“The general principle of law is well settled that an amendment of pleadings can be made at any time, before judgment. However, and notwithstanding the wide latitude, the intention is not to leave the consideration open-ended and without proper control so as to create a flood gate of an abuse of discretion. The case of Imonikhe v. A. G. Bendel State (1992) 7 SCNJ 197 at 207-208 per Nnaemeka – Agu, JSC is relevant wherein this Court said:- “Although, by the rules, an amendment to the pleadings can be made at any stage of the proceedings, different considerations apply depending on whether the amendment is being sought before or after the close of the evidence by the parties. Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible, as evidence on an issue which was not pleaded or a claim not on the record is strictly admissible. But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premise that evidence in support of it is already on record, so that it is necessary and in the interest of justice to allow the amendment in order to make the pleadings or the claim accord with evidence already on record. The rationale of it is that such amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties.”
The Court is now expected to look at the nature of the amendment made by the Respondents with leave of Court and from there determine how extensive and whether it offended the rule of fair hearing and occasioned a miscarriage of Justice. That can only be done from the application by way of Motion on Notice brought by the 1st and 3rd-4th Respondents. Looking into the record, the said motions are missing. I combed through the record and could not see the motions upon which the amendments were made. This is a Court of record, the Court cannot determine an Appeal with incomplete record, see EKPOMUPOLO & ORS V EDREMODA & ORS (2009) LPELR-1089 (SC) which held thus:
“It is now firmly settled that it is the duty of an Appellate Court, not to hear an appeal on incomplete Records. See the case of Chief Okochi & 2 Ors. v. Chief Animkwoi & 2 Ors. (2003)18 NWLR (pt.25) 1; (2003) 2 SCNJ 260 @ 271. This is because, the Records of proceedings, bind the parties and the Court until the contrary is proved. See the cases of Sommer v. Federal Housing Authority (1992) 1 NWLR (pt.219) 548; (1992) 1 SCNJ 73; Orugbo & Anor v. Bulari Una & 10 Ors (2002) 9 SCNJ 12; (2002) 9-10 S.C. 61; Chief Fubara & Ors. v. Chief Minimah & Ors. (2003) 5 SCNJ 142@ 168. This is again because, there is a presumption of genuineness which of course, is not absolute but is rebuttable. See the case of Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251 @ 272; (2003) 12 SCNJ 158 @ 172. This again is because a Court is entitled to look at and refer to the contents of the Records in consideration of any matter before it. See the cases of Funduk Engineering Ltd. v. McArthur (1995) 2 NWLR (pt. 392) 640 @ 652; (1995) 4 SCNJ 240 and Texaco Panama Incorporation (Owners of the Vessel “M.V” Star Tulsa) v.Shell Petroleum Development Corporation of Nig, Ltd. (2002) 2 SCNJ 102 @ 118-Per Kalgo, JSC.”
It is conceded that there are exceptions to the rule but it is only where the missing part of the record is immaterial to the Appeal. In this Appeal, the missing portion is material to the determination of the Appeal because a Ground of the Appeal is premised on alleged breach of rule to fair hearing and the record from where to determine the issue distilled from the said ground is missing from the Record. Furthermore, the Apex Court in considering exceptions to taking Appeals with incomplete Records of Appeal in the case of OKOCHI & ORS V ANIMKWOI & ORS (2003) LPELR-2455(SC) said:
“As an Appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An Appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the Appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an Appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice.” This Court is a Court of record and its jurisdiction is exercised on record from trial Courts, to proceed on any Appeal with incomplete record is doing so outside its mandate. The duty is on counsel to ensure Record of Appeal is complete before taking the Appeal, he is expected to take a step in order not to make the Court waste valuable time, failure to do the needful speaks volumes, see ODOFIN & ORS V AGU & ORS (1992) LPELR- 2225(SC) which held:
“Where a counsel realizes that the record of appeal is incomplete, it is his duty to inform the Court early and where he feels that, after due search in the Lower Court, he can take other steps to convince the Court that the record before the Court though certified as a true copy of the proceedings was indeed wrongly certified; he should know what next to do. A mistake of counsel readily admitted by counsel is part of the honour of counsel which is relied upon by Court not to visit the mistake of counsel on litigants.”
In this Appeal, the 1st Respondent mentioned it in a very subtle way that the record was incomplete, one would have expected the learned Counsel to the Appellant to double check the record and be sure it is complete and state so. This is because the Appellant could apply to bring supplementary record to complete the Record of Appeal before the Appeal is heard. There was no reaction to the allegation in this case. The Court and no Court for that matter should speculate on what the missing portion of the Record of Appeal contains; see NAL BANK PLC V AFRIMPEX ENTERPRISES LTD (2007) ALL FWLR (Pt. 386) 767. However, it has now become very obvious that the record is incomplete and therefore the Appeal cannot be determined. Consequently, the only logical thing to do is to strike out the Appeal on that ground. The Appeal is hereby struck out for having incomplete Record of Appeal.
No order as to cost.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusion with which I am in agreement that the appeal be struck out.
It is however, my desire to support the decision with a small still voice. An appeal by its configuration and signification shall be by of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature or the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties, (Order 7 Rule 2, Court of Appeal Rules, 2016).
For a party to come to this Court. he must be coming after a decision has been given by the Trial Court conferring some rights, and obligations on others. An appeal calls for a review of what had been done before at the Trial Court. This in itself confer a great load of responsibility for an appellant to approach this Court with strict and stringent string of diligence. The appellant must upload in his compilation every necessary document to enhance the quick dispensation of justice. In the instants case, the appellant made a strong allegation of breach of his right to fair hearing. It behoves the appellant to produce the record which will assist the Court to resolve the issue that is fundamental to the determination of his case. It has always been the duty of counsel for the appellant to ensure that the record of appeal is a complete record of appeal.
In Okonji v. Njokanma (1991) 7 NWLR (Pt 202) 131, the Supreme Court stressed the need for Counsel for an appellant to devote personal attention to what should be embodied in the record of the Court for proper hearing and determination of the appeal, as it is wrong for the Court to base its decision on an incomplete record of appeal. This is necessary, particularly where the record missing from the record of appeal is very paramount in the determination of the appeal. This Court as an Appellate Court cannot turn itself into a record builder for the appellant. The omission of the record in the instant case, is inexcusable and it has fundamentally affected this appeal. The proper thing to do in this appeal is to have it struck out as it is incompetent.
I therefore agree with the lead judgment of my learned brother that this appeal be struck out for being incompetent, and I so order.
MOHAMMED BABA IDRIS, J.C.A.: My learned brother YARGATA NIMPAR, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
Appearances:
SAMUEL AMEH ESQ., with him, ANGELA PETER ESQ. For Appellant(s)
ADETOLA OLUNENU Esq. for 1st Respondent
AKIN ADEWALA Esq. for 2nd Respondent
G. A. IDIAGBANYA Esq., with him, N. P. OKORO Esq. and L.J. ASHAKU Esq. for 3rd and 4th Respondents
For Respondent(s)
