MUTUAL LIFE & GENERAL INSURANCE V. KODI IHEME
(2010)LCN/3941(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/L/461/2006
RATIO
RECORD OF APPEAL: WHETHER THE COURT OF APPEAL IS DEVOID OF JURISDICTIONAL COMPETENCE TO HEAR AN APPEAL BASED ON AN INCOMPLETE RECORD OF APPEAL
…it’s a trite and fundamental principle of law, that the Court of Appeal is devoid of jurisdictional competence to hear an appeal based on an incomplete record of appeal. It is indeed a well settled law, that an appeal from the lower court shall be determined by way of a rehearing. As such the court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire records of appeal, comprising the lower court’s proceedings and evidence adduced there at, to such an extent as the grounds of appeal demand. See order 6 Rule 2 (1), (2) & (3) of the Court of Appeal Rules, 2007; NWANA VS. FCDA (2007) 11 NWLR (pt. 1044) 59 at 84 paras D – F: PANALPINA WORLD TRANSPORT V. WHRIBOKO (1975) 2 SC 29: OPARAJI VS. OHANA (1999) 9 NWLR (pt. 618) 290: UDEZE VS. CHIDEBE (1990) 1 NWLR (pt. 125) 141. Most instructively, in the case of NWANA VS. FCDA (supra) at 78 paras. F – H, it was aptly held by the Supreme Court, per Chukwuma-Eneh, JSC that: It is wrong for the Court of Appeal to base its decision in a case on an incomplete record transmitted to it without the vital documentary exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence, the decision would occasion a miscarriage of justice. PER IBRAHIM MOHAMMED MUSA SAULAWA, JCA
EFFECT OF AN INCOMPLETE RECORD OF APPEAL ON THE JURISDICTIONAL COMPETENCE OF THE APPELLATE
where, as in the instant case, the record of appeal is incomplete, the court is devoid of the fundamental jurisdictional competence to proceed to deliver judgment. See NWANA VS. FCDA (supra) 78 at paragraphs F-H. PER IBRAHIM MOHAMMED MUSA SAULAWA, JCA
TECHNICAL ISSUE: POSITION OF THE LAW ON THE DUTY OF THE COURT WHERE AFTER HEARING THE ARGUMENT OF THE RESPECTIVE PARTIES, THAT THERE IS A TECHNICAL ISSUE WHICH OUGHT TO HAVE BEEN ADDRESSED BY COUNSEL
What’s more, it’s a trite and well established doctrine of law, that where, as in the instant case, a court is of the view, after hearing the argument of the respective parties, that there is a technical issue which ought to have been addressed by counsel, then it behoves upon court to reopen the case with a view to according counsel on each side to address the court there on. See COLE V. MARTINS (1968) ALL NLR 161, wherein the Supreme Court held, inter alia, per Lewis, JSC at 163 thus: We have frequently stated in the past, and we must reiterate again now, that it is most desirable that if a court considers after hearing argument of counsel that a matter before it can infact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it. It is in our view only after so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect, if there is one, could be cured if the court, in its discretion, gives leave to amend. See also REGISTERED TRUSTEES VS. AKINDELE (1967) NMLR 263; NWEKE V. OKAFOR (2007) 10 NWLR (pt. 1043) 521. PER IBRAHIM MOHAMMED MUSA SAULAWA, JCA
DUTY OF AN APPELLANT: DUTY PLACED ON AN APPELLANT WITH RESPECT TO HIS APPEAL
However, the appellant has an onerous duty under the law to prosecute his appeal not only timeously, but also diligently. He has the duty to ensure that all the relevant materials on the issue he has prayed the court to consider and determine are placed before the court. See T.A.S.A. LTD VS. DANTRANS NIG. LTD (1996) 16 NWLR (pt. 478) 360; NWANA VS. FCDA (supra) at 79 paras. G – H. PER IBRAHIM MOHAMMED MUSA SAULAWA, JCA
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MUTUAL LIFE & GENERAL INSURANCE Appellant(s)
AND
KODI IHEME Respondent(s)
HON. JUSTICE REGINA OBIAGELI NWODO (J.C.A.) (Delivering the leading Ruling): Appeal in respect of this matter was heard on the 21/1/2010 and judgment reserved. In the course of writing the judgment this court observed that looking at the Record of Appeal that the testimonies of witnesses in the Arbitration and the proceedings at the Arbitration of the dispute between the Appellant and the Respondent were not part of the Record of Appeal. The documentary exhibits were also not transmitted. The appeal arose from the Ruling of the High Court of Lagos State in which the court dismissed the Appellant’s Originating Summons seeking to set aside the Arbitral Award made in favour of the Respondent. The same Ruling of the court granted the Respondent’s application for an order of court enforcing the Arbitral Award. The proceedings during arbitration was not part of the Record of Appeal.
On the directive of the court hearing notices were served on learned counsels for the parties to address the court on the 14/04/2010 the date for address. The learned counsel for the Appellant Mr. G. E. Ojiekhudu addressing the court stated that the Appellant counsel filed a Motion on Notice on 19/10/06 when he realized that the proceedings before the Arbitration was not in the Record of Appeal, seeking leave to bring in a supplementary record containing the proceedings during the Arbitration. He only gathered that the Motion was struck out on 26/2/08 and at the time of hearing the appeal he did not realize that the supplementary record was not before the court. He stated further that he has been sick at that time. Learned counsel then applied for the proceedings during the hearing of the appeal to be set aside because of the incomplete record.
Learned counsel for the Respondent Chief Akinjide (S.A.N.) argued that both counsels were in court on the date of hearing the appeal and informed the court the appeal was ready for hearing and then argued and adopted their Briefs. That it is too late for the learned counsel for the Appellant to complain as he was not misled by any person. He stated that the record was prepared by the counsel. It is his submission that the court should proceed with Judgment as the Appellant presented the record he wants to rely on and a party cannot be forced to present more record than he requires otherwise the court will be descending into the arena. He prayed that the court should not allow the Appellant file any further record as the Appeal has been heard and it is not a case on fair hearing. He asked the court to proceed to deliver Judgment and give a date for Judgment. Mr. Ojiekhudu notes that both parties made reference to the proceedings during Arbitration and relied on the additional record.
I have considered the submissions of the learned counsel for the Appellant and Chief Akinjide (S.A.N.). It is indisputable there is a serious omission in the Record of Appeal. The appeal is against a decision of the court below which decision is based on an Arbitration Award. The learned senior counsel rightly noted that a court will not force a party to present more record than it requires, but then the appellate court is under a duty not to hear an appeal on an incomplete record. It is not a situation of the court descending into the Arena. An appellate court hears an appeal on the records before it but must ensure that the records are complete. The Supreme Court in Okochi v. Animkwoi (2003) 18 N.W.L.R. (pt.851) pg.1 per Tobi, J.S.C. stated as follows:
“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. In such a situation, other efforts should be made to procure the missing portion of record”.
See also Nwanna v. F.C.D.A. (2007) 11 N.W.L.R. (pt.1044). It is therefore not proper for this court to base its decision on a record which glaringly is incomplete. The Appellant’s counsel told the court he was sick, the fact that a motion was filed for leave to file supplementary Record of Appeal demonstrates intention to rely on the proceedings as part of the Record of Appeal. Learned counsel for Appellant also indicated that the Briefs referred to the Arbitration proceedings. This clearly shows the proceedings missing in the record is vital and material for the just determination of the appeal.
In the circumstance of the forgoing I believe it is right, and in order for the court not to determine the appeal based on an incomplete record. The application of the learned counsel for the Appellant that the appeal already heard be set aside requires a formal motion in accordance with the provisions under Order 7 Rule 1 of the Court of Appeal Rules 2007. Nevertheless, the court called for the parties to address the court and in the peculiar nature of the situation of incomplete record the appeal could not have been ready when heard. I therefore will have to direct that the Appellant’s counsel file the appropriate application for leave to file a supplementary record. It is unfortunate that this appeal is further delayed. I believe substantial justice will be achieved by a further delay in hearing the appeal than proceeding to determine the appeal on incomplete record. The Respondent will be compensated in cost for the delay.
I therefore direct Appellant to file a motion to bring in the supplementary record within 14 days from today. The cost of N50,000.00 is awarded in favour of the Respondent.
PAUL ADAMU CALINJE, JCA: I read in advance the ruling just delivered by my learned brother Nwodo, JCA and I entirely agree that effort should be made to procure the missing portions of the record of appeal. This is so because the parties have not agreed that the appeal should be heard on incomplete record.
Rules of technicality have since given way to substantial justice in the determination of dispute between parties in any matter. For substantial justice to be done, parties must put before the Court all the necessary materials required for the just determination of dispute between them.
I therefore adopt the reasoning contained in the ruling of my learned brother as mine and subscribe to all the consequential orders made therein including order as to cost.
IBRAHIM MOHAMMED MUSA SAULAWA, JCA: I had read, before now, the draft of the ruling just delivered by the Hon. Justice R.O. Nwodo, JCA. Having done so, I have no reasonable cause to depart from the reasoning and conclusion reached therein, to the effect that it would not be proper for this court to base the decision thereof on the record of appeal that is obviously incomplete. I have the privilege to adopt the said reasoning and conclusion reached in the lead ruling as mine. And I so hold.
It should be reiterated, as alluded to in the lead ruling, that the present appeal was initially heard on21/01/2010. The eminent learned counsel adopted their argument contained in the respective briefs of argument on that very day. Thus, resulting in the appeal being reserved for delivery of Judgment. Incidentally, however, it was in the eleventh hour that some vital documents that ought to have basically formed part of the record of appeal were realized to have been excluded from the record. The vital documents in question are as follows:
(i) The testimonies of the witnesses that had so far testified the Arbitration Panel;
(ii) The record of proceedings of the Sole Arbitration panel,
(iii) The original documentary exhibits admitted at the Arbitration panel’s proceedings.
As aforementioned, the above vital documents were not transmitted to this court from the lower court. The record of appeal spans a total of 368 pages. I have painstakingly traversed the entire pages of the record in question.
The ruling of the lower court resulting in the order of enforcement of the arbitral award was delivered on 13/3/2001, and contained at pages 85-93 of the record of appeal. By the said ruling, the learned trial judge, Rhodes-Vivour, J; (as he then was), came to the following conclusion:
In sum application by Mr. Kodi Iheme seeking enforcement of the award made by Dr. L Adegbite on 21/3/2000 succeeds. The arbitral award is hereby ordered enforced;
The application of Mutual Life and General Insurance Ltd is accordingly dismissed.
Cost of N500 is awarded in favour of Mr. Kodi Iheme.
The final award of the sole Arbitrator, Dr. Lateef Adegbite is contained at pages 109-138 of the record of appeal. Unfortunately, however, as alluded to above, the actual proceedings of the sole Arbitrators panel containing the testimonies of the witnesses that testified, the documentary exhibits admitted in the course of the proceedings of the sole Arbitrator’s panel had not been transmitted to this court from the lower court.
Thus, in the absence of the above vital documents, the record of appeal is, for all intents and purposes, grossly incomplete. And it’s a trite and fundamental principle of law, that the Court of Appeal is devoid of jurisdictional competence to hear an appeal based on an incomplete record of appeal. It is indeed a well settled law, that an appeal from the lower court shall be determined by way of a rehearing. As such the court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire records of appeal, comprising the lower court’s proceedings and evidence adduced there at, to such an extent as the grounds of appeal demand. See order 6 Rule 2 (1), (2) & (3) of the Court of Appeal Rules, 2007; NWANA VS. FCDA (2007) 11 NWLR (pt. 1044) 59 at 84 paras D – F: PANALPINA WORLD TRANSPORT V. WHRIBOKO (1975) 2 SC 29: OPARAJI VS. OHANA (1999) 9 NWLR (pt. 618) 290: UDEZE VS. CHIDEBE (1990) 1 NWLR (pt. 125) 141.
Most instructively, in the case of NWANA VS. FCDA (supra) at 78 paras. F – H, it was aptly held by the Supreme Court, per Chukwuma-Eneh, JSC that:
It is wrong for the Court of Appeal to base its decision in a case on an incomplete record transmitted to it without the vital documentary exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence, the decision would occasion a miscarriage of justice.
As aptly alluded to in the lead ruling, both learned counsel addressed the court, on 14/4/2010, at the instance of the court regarding the fundamental issue of the incompleteness of the record of appeal in question. Mr. G.E. Ojiekhudu for the Appellant submitted, inter alia, that on realizing that the proceedings of the Arbitration panel was not (incorporated) in the record of appeal, he filed a motion on 13/10/2006, seeking to compile and transmit the Arbitration panel’s record of proceedings as a supplementary record. That motion was allegedly taken in 2008 and struck out. He later compiled the record but could not file it because he ‘fell sick’. According to the learned counsel:
“When the appeal came up for hearing, I did not know that I did not file the supplementary Record. The Justice of the case demands that the proceedings of the appeal be set aside and the appeal fixed for fresh hearing.”
On the part thereof, the learned and eminent silk, Chief Richard Akinjide SAN, vehemently disagreed with the Appellant’s learned counsel on the issue of setting aside the proceedings of the appeal and fixing same for fresh hearing. He pointed out that the application filed by the Appellant’s counsel was initially withdrawn and struck out. That, the briefs of argument of respective parties, having been duly argued and adopted by both learned counsel, it’s too late, at this crucial stage in time, for the Appellant to now complain. Thus, the judgment has to be delivered on the merits.
With utmost possible deference to the learned silk, the aforementioned view that the court must deliver judgment inspite of the discovery, albeit in the eleventh hour, of the obvious fact that the record of the appeal is incomplete, is in my considered opinion highly misplaced, for some obvious reasons. As alluded to above, where, as in the instant case, the record of appeal is incomplete, the court is devoid of the fundamental jurisdictional competence to proceed to deliver judgment. See NWANA VS. FCDA (supra) 78 at paragraphs F-H.
What’s more, it’s a trite and well established doctrine of law, that where, as in the instant case, a court is of the view, after hearing the argument of the respective parties, that there is a technical issue which ought to have been addressed by counsel, then it behoves upon court to reopen the case with a view to according counsel on each side to address the court there on. See COLE V. MARTINS (1968) ALL NLR 161, wherein the Supreme Court held, inter alia, per Lewis, JSC at 163 thus:
We have frequently stated in the past, and we must reiterate again now, that it is most desirable that if a court considers after hearing argument of counsel that a matter before it can infact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it. It is in our view only after so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect, if there is one, could be cured if the court, in its discretion, gives leave to amend.
See also REGISTERED TRUSTEES VS. AKINDELE (1967) NMLR 263; NWEKE V. OKAFOR (2007) 10 NWLR (pt. 1043) 521.
It must be reiterated, for the avoidance of any lingering doubt, that the appellant’s right of an appeal against the decision of a lower court of tribunal is an inalienable right cherishingly duly enshrined in the 1999 constitution. However, the appellant has an onerous duty under the law to prosecute his appeal not only timeously, but also diligently. He has the duty to ensure that all the relevant materials on the issue he has prayed the court to consider and determine are placed before the court. See T.A.S.A. LTD VS. DANTRANS NIG. LTD (1996) 16 NWLR (pt. 478) 360; NWANA VS. FCDA (supra) at 79 paras. G – H.
Hence, in the light of the foregoing postulations, I have no hesitation in concurring with the reasoning and conclusion reached in the lead ruling.
I hereby abide by the consequential orders directing the Appellant to file a motion seeking leave to compile and transmit the supplementary records of proceedings within 14 days from today.
The Respondent shall be entitled to N50,000.00 as cost.
Appearances
Mr. G. E. OjiekhuduFor Appellant
AND
Chief Akinjide (S.A.N.)
Kenneth Obisike, Ejike Nwuba,
Ihuoma Ahanonu MissFor Respondent
