MA’AJOR ROKA & ORS v. ISHAKU WUTAN
(2014)LCN/7244(CA)
(2014) LPELR-24173(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of May, 2014
CA/YL/49/2013
RATIO
CONSEQUENCE OF A RECORD OF APPEAL TRANSMITTED OUT OF TIME WITHOUT AN ORDER FOR EXTENSION OF TIME
The consequence of a record of appeal transmitted out of time without an order for extension of time is that there is no valid record to support the appeal, which further compounds the situation. per ADAMU JAURO, J.C.A.
Justice
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
1. MA’AJOR ROKA
2. MASHI KANZE
3. SHADI MAZANG
4. BALANWEN KANZEAppellant(s)
AND
ISHAKU WUTANRespondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Taraba State High Court of Justice sitting in Jalingo delivered on 29th March, 2011 in suit number TRSJ/50/2010.
Simply put and briefly stated, the facts of this case are as follows: The respondent herein as plaintiff instituted an action against the appellants as defendants in the lower court, vide a writ of summons dated 13th May, 2010. The respondent as plaintiff claimed for the following reliefs against the appellants as defendants, namely:
“i. A declaration that the plaintiff is the owner of the parcel of land in dispute at Mile Six Jalingo after UMCN Secretariat and bounded to the South by a stream, North and West by the land of Jauro Kanze and East by the land of Kanze Nyamiri.
ii. A declaration that the building of thatch houses on the land by the 2nd, 4th and 5th defendants constitutes an act of trespass.
iii. General damages of Six Hundred Thousand Naira (N600,000.00) for trespass.
iv. An order of perpetual injunction restraining the defendants, their privies, agents or any other person claiming through the defendants from further Acts of trespass.
v. Cost of filing and prosecuting this suit.”
Upon settlement of pleadings, the matter proceeded to hearing. The defendants in the main denied the claim of the plaintiff and averred that the land in dispute is their family land, which was a subject matter of exhibit D1 a case in suit No.TRSJ/69/94. The plaintiff testified as PW4 and called 3 other witnesses PW1 to PW3, in support of his case. The defendants also called four witnesses DW1 to DW4 and tendered judgment in suit No. TRSJ/69/94 which was admitted as exhibit D1 through DW4. Upon the close of evidence, written addresses were filed, exchanged and adopted in court.
The lower court gave judgment in favour of the plaintiff on 29th March, 2011 in the following words:
“In the whole I find that the plaintiff has successfully discharged the burden of proof placed on him and is accordingly entitled to judgment.
In the result I hereby find for the plaintiff as follows:-
1. Title to the parcel of land situate at Dansenkon after UMCN secretariat mile- six Jalingo and boarded to the North by Jauro Kanze, West and East by a steam and the south by the land of Nega Kushon, is hereby declared to the plaintiff.
2. That the thatch houses built on the land by the 2nd, 4th and 5th defendants constitutes an act of trespass.
3. I hereby grant perpetual injunction restraining the defendants, their privies, agents or any other person claiming through them from further acts of trespass.
4. The sum of Two Hundred Thousand (N200,000.00) Naira damages against the defendants in favour of the plaintiff.
5. The sum of Twenty Thousand (N20,000.00) as cost of this action is granted in favour of the plaintiff.”
Distressed and aggrieved by the aforementioned decision, the defendants challenged same vide a notice of appeal dated 28th November, 2012 and filed on 30th November, 2012. The notice of appeal is predicated upon five grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellants’ amended brief of argument was filed on 22nd April, 2014 though deemed properly filed and served on 28th April, 2014. The appellants’ reply brief was filed on 22nd April, 2014. The respondent’s brief of argument was filed on 25th April, 2014 but deemed properly filed and served on 28th April, 2014. The respondent also filed a notice of preliminary objection on 2nd January, 2014.
On the date fixed for hearing the appeal being, 28th April, 2014 the respondent sought leave of court, which was duly granted to move the preliminary objection. The respondent abandoned Ground one of the preliminary objection and relied on Ground two of same. Consequent upon the foregoing, Ground one having been abandoned is hereby struck out. The respondent adopted arguments in support of the preliminary objection as contained on pages 1 to 8 of the amended respondents brief, and urged the court to strike out Grounds 1, 2, 3 and 5 of the grounds of appeal. The respondent further urged the court to dismiss the appeal, because the only ground remaining is Ground 4 which has been argued along with other incompetent grounds. In response to the preliminary objection, the appellants adopted the arguments contained on pages 1 to 3 of the appellants’ reply brief and urged the court to discountenance preliminary objection.
As for the main appeal, the appellants adopted their amended brief of argument and their reply brief in urging the court to allow the appeal and set aside the judgment of the trial court. The appellants contended that the respondent had argued fresh issues without leave in paragraphs 5.07 and 5.08 of page 13 and 14 of the amended respondent’s brief. The appellants urged the court to discountenance the fresh issues raised as they were intended to overreach them. The respondent adopted arguments on page 7 to 17 of the amended respondents brief, in response to the appeal. The respondent urged the court to dismiss the appeal for want of merit.
The appellants submitted two issues for determination on page 3 of the appellants’ amended brief of argument as follows:
“1. Whether the plaintiff/respondent was able to discharge the burden of proving his case on preponderance of evidence to be entitled to judgment in view of the apparent contradictory evidence in his case. Distilled from Grounds 1, 2 & 4.
2. Whether the learned trial judge was right when he held that the land in dispute is not the same with the land in Exhibit “D1″ in view of the pleading of the parties and evidence in open Court. Even though the Trial Judge did not visit the locus in quo. Distilled from Grounds 3 & 5.”
The respondent on his part also distilled, two issues for determination on page 9 and 10 of the respondent’s amended brief of argument, namely:
“1. Whether the plaintiff/respondent was able to discharge the burden of proving his case on preponderance of evidence to be entitled to judgment in view of the apparent contradictory evidence in his case.
2. Whether the learned trial judge was right when he held that the land in dispute is not the same with the land in Exhibit “D1″ in view of the pleading of the parties and evidence in open court; even though the trial judge did not visit the locus in quo.”
The parties having concluded adopting their respective briefs, the court raised three points and requested parties to address it on same. The points raised are as follows:
“1. Whether the appeal was filed within time in view of the fact from page 96 of the record the judgment of the lower court was delivered on 29/3/11 and the Notice of Appeal filed on 30/11/12.
2. The record of appeal was transmitted out of time because the notice of appeal was filed on 30/11/12 and record transmitted on 1/8/13, clearly outside the time prescribed by the Rules of Court.
3. The competence of the notice of appeal because the Notice of Appeal on its first page referred to a judgment delivered on 11th May, 2011 while the judgment of the lower court was delivered on 29th March, 2011 as can be seen on page 72 and 96 of the record.”
In a short response Mr. O. S. Kara for the appellants, submitted that they were granted extension of time in Jalingo, but it was not reflected in the record. The appellants conceded that the record of appeal was filed out of time and has not regularized, but contended that it was the fault of the registry of the lower court. On the issue of the notice of appeal reflecting a different date from the actual date upon which the judgment was delivered, the appellants stated that they are very sorry about that and that it is an error.
Mr. E. N. Chia for the respondent, conceded that the notice of appeal was filed out of time. Learned counsel stated that he is aware that leave and extension of time to appeal was sought and obtained but he does not have any record to that effect. The respondent conceded that the record of appeal was transmitted out of time and has not been regularized in line with Order 8 Rule 1 and 4 of the Rules of Court. On the last point, the respondent agreed that it is clear that the notice of appeal referred to a judgment delivered on 11/5/2011 and does not relate to the judgment of the lower court which was delivered on 29/3/2011. The respondent therefore submitted that there is no notice of appeal against the said judgment or in the alternative the judgment for which the notice of appeal was filed is not in the record.
A consideration of the issues raised by the court and their effect on the instant appeal will now be made. On the issue of notice of appeal filed out of time, both counsel agreed that there was an order for extension of time granted, though not reflected in the record. It is trite and authorities are legion to the effect that a court is bound by the record of appeal. See Garuba V Omohodion (2011) 6 SCNJ 334, Sapo V Sunmonu (2010) 5 SCNJ 1, Leaders of Company Ltd (Publishers of This Day) V Bamaiyi (2010) 12 SCNJ 480.
Where the record has not indicated that an extension of time was granted, it cannot be imported orally through the back door.The judgment of the lower court was delivered on 29/3/2011 while the notice of appeal was filed on 30/11/12, a period of about one year eight months.
Section 24(2) (a) of the Court of Appeal Act, provides thus:
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
By the aforementioned provision, an appeal against a final decision is to be filed within three months. Filing an appeal out of time without an Order for extension of time is an incurable irregularity. See Adeyemi V Ike – Oluwa & Sons Ltd (1993) 8 NWLR (pt. 309) 27, Auto Import & Export V Adebayo (2003) 7 WRN 1 at 15 and 16, Adelekan V Ecu – Line NV (2006) 12 NWLR (pt. 993) 33, Okereke V James (2012) 16 NWLR (pt. 1326) 339, Afri Bank Plc V Akwara (2006) 5 NWLR (pt. 974) 619. Based on the foregoing authorities, an appeal filed out of time without an order extending time is incompetent and liable to be struck out.
The notice of appeal in the instant case referred to a judgment delivered on 11/5/2011, when the actual judgment of the lower court as can be seen from pages 72 and 96 of the record was delivered on 29/3/2011. It is crystal clear that the notice of appeal is not against the judgment of the lower court which was delivered on 29/3/2011. The notice of appeal animates and activates the jurisdiction of this court. Where the notice of appeal is grossly defective as in the instant case, it renders the entire appeal incompetent. On this point, see the decision of this court in Peter Halilu V Titus Kwano, appeal No. CA/YL/66/2013 delivered on 23rd May, 2014. On this score alone, the appeal is incompetent.
On the issue of record of appeal, by Order 8 Rule 1 of the Rules of Court, the registry of the lower court has 60 days within which to compile and transmit record. Upon its failure to do so, the responsibility shifts unto the appellant by virtue of Order 8 Rule 4. The appellant has a duty to ensure that the record transmitted to the court is accurate and within time. The apex court in Ajayi V Omorogbe (1991) NWLR (pt. 301) 512 at 518 stated thus:
“It is the duty of the appellant in an appeal to ensure the accuracy of the record of appeal forwarded to the appellate court. In addition, he must also ensure that the record of appeal reaches the Appellate Court on time. See Obiamalu V Nwosu (1973) NSCC (Vol. 8) 60, Uwechia V Obi (1973) NSCC (Vol. 8) 56.” (Underlining mine for emphasis).
The consequence of a record of appeal transmitted out of time without an order for extension of time is that there is no valid record to support the appeal, which further compounds the situation.
Consequent upon the foregoing, the cumulative effect of the issues raised by the court is that the appeal has been rendered incompetent and liable to be struck out. The instant appeal is hereby struck out for being incompetent based on the aforementioned issues of law raised by the court.
There will be no order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I agree entirely with the Judgment just delivered by my learned brother, Jauro, JCA. And for the reasons given by him in the said Judgment, I also strike out the Appeal.
From the Record of proceedings of this Appeal, It is beyond dispute that this Appeal was filed out of time, Judgment having been delivered on 29-03-11, whereas the Notice of Appeal was filed on 10-11-12. The Record of Appeal itself was also compiled and transmitted to this Court outside of the period prescribed by the Rules of this Court, and no attempt was made by the Appellant to regularize same by seeking an extension of time for this purpose. Furthermore, there is a doubt as to which Judgment the Appellant is appealing against in view of the fact that the date of Judgment referred to in the Notice of Appeal is diametrically different from the date on which the Judgment of the trial Court was actually delivered, as disclosed in the Record.
Each of these issues would suffice to render the Appeal before this Court incompetent. But a combination of all three contraventions makes this Appeal grossly and hopelessly incompetent. The Appeal as it stands is ineffectual to invoke the jurisdiction of this Court to entertain it, much less to determine same. It cannot be saved.
Furthermore, it does not lie in the mouth of learned Counsel to merely and vaguely state that he was granted an extension of time, on a date he could not specify, to file an Appeal out of time. Since this is a Court of Record, and being bound by the Record, it must be proved to the Court. See Leaders of Company Ltd (Publishers of This Day) V Bamaiyi (2010) 12 SCNJ 480. There is nothing on record to verify this information to this Court and the Appellant was unhelpful to himself by his inability to produce an enrolled Order of Court in this regard or even the proceedings of the Court in that respect.
It is for this and for the more comprehensive reasons advanced in the lead Judgment of my learned brother, Jauro, JCA, that I too have no hesitation in striking out the Appeal for gross incompetence.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Adamu Jauro, JCA. The issues in the appeal as touching the competence or otherwise of both the Notice of Appeal filed out of time without leave of Court and the record of Appeal also transmitted to this Court out of time without regularization have been quite admirably dealt with extensively and exhaustively in the lead judgment.
I full subscribe to the reasons and adopt them as mine. I have absolutely nothing, not even a sentence or a word to add to the well reasoned lead judgment.
I too strike out the appeal for being incompetent. I abide by the order as to no cost.
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Appearances
Mr. E. S. KaraFor Appellant
AND
Mr. E. N. ChiaFor Respondent
