MR. WILSON BROWNSON V. NIGERIA CUSTOMS SERVICE BOARD
(2012)LCN/5504(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/B/385/2009
RATIO
ORDER: WHAT IS THE PROPER ORDER TO MAKE WHERE THERE ARE MISSING RECORDS
This court cannot therefore determine this appeal on the merit as the missing record is fundamental. In such a situation the proper order to make is a retrial on the merit. See Okochi & Ors vs. Animkwoi & Ors (2003) 18 NWLR (Pt. 851) 1. PER RAPHEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
MR. WILSON BROWNSON Appellant(s)
AND
NIGERIA CUSTOMS SERVICE BOARD Respondent(s)
RAPHEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The Respondent on 25th October, 2007 obtained an order from the Federal High Court (I) condemning and forfeiting to the Federal Government of Nigeria, containers and goods listed in the schedule attached to the motion and marked as exhibit NCS “A”, “B”, “B1” and “C” and (2) an order of court to dispose of the containers and the said goods by auction sale to the public by Nigeria Customs Service Board or by any other means that the applicant may deem appropriate. The appellant, feeling aggrieved by that order and contending that his Daf truck registered as No. XC 294 AGL was affected by the said order of the Federal High Court applied to this court for leave to appeal as an interested party. This court on 12th September, 2009 allowed the application and on 13th September, 2009 the appellant filed his notice of appeal. The parties exchanged briefs of argument. The appeal was heard and judgment reserved.
On close perusal of the record of appeal however, I discovered nothing linking the proceedings with the said appellant’s truck alleged to have been ordered forfeited and sold by the trial court. The schedule upon which the trial court founded its order was not placed before this court. This court cannot therefore determine this appeal on the merit as the missing record is fundamental. In such a situation the proper order to make is a retrial on the merit. See Okochi & Ors vs. Animkwoi & Ors (2003) 18 NWLR (Pt. 851) 1. However, in the instant case the order for retrial de novo is in-appropriate as the appellant was not a party to the suit at the court of first instance. In this circumstance the only order I can make is a striking out. This appeal is struck out. No order as to costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Agbo, JCA. I also strike out this appeal.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the benefit of reading before now the Judgment of my learned brother R.C. AGBO JCA. I agree with him that there is nothing linking the proceedings with the said Appellant’s truck said to have been ordered forfeited and sold by the court below. I also agree that there is no justification for an order for retrial on the merits since the Appellant was not a party to the Suit at the court below. The only option left for this court in the circumstance is a striking out.
In that vein, I also strike out this appeal and make no order as to costs.
Appearances
Wilcox AberetonFor Appellant
AND
Dr. Wahab Egbewole with him Miss Rachael OlusonaFor Respondent
