PEOPLES DEMOCRATIC PARTY v. UZOCHUKWU OBIORA CHIRA & ANOR
(2018)LCN/12315(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of December, 2018
CA/A/1080/2018
RATIO
EVIDENCE: PRESUMPTION OF REGULARITY
“Presumption of regularity under Section 168 of the Evidence is a rebuttable presumption. A situation as in the instant appeal where the trial judge who wrote and delivered the judgment appealed upon, wrote a disclaimer that the unsigned judgment transmitted was not the judgment of the Court and the judgment signed by the Court is said to be the real judgment, such presumption of regularity cannot stand. I adopt my views and decision on this issue and the issue of certification in the sister appeal No: CA/A/104 1/2018, where I said: ‘The fact that the judgment transmitted was unsigned strengthens the disclaimer of the learned trial judge. It is settled law that it is the seal or signature on the judgment that authenticates the judgment. See G.T.B. V. Innoson Nigeria Ltd (2017) LPELR 42 308 (SC). The essence of authenticating a document is to show it as being that of, or binding on the person. An unsigned judgment has no credit or credence. It is valueless, worthless and good for the trash can. The concept of certification under our laws should not be misunderstood… It must be underlined here that the duty of certifying a document is a serious one. It is a duty that requires prudence, responsibility and diligence. An officer of Court such as a register of Court must show responsibility and diligence in ensuring that what is certified is the true copy of the original. A registrar of Court it is presumed, knows more than the ordinary man on the street that a judgment delivered by a Judge must be signed by the judge for it to be dubbed the judgment of the Court.’PER STEPHEN JONAH ADAH, J.C.A.
Justice
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
1. UZOCHUKWU OBIORA CHIRA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling):
This appeal is against the decision of the High Court of the Federal Capital Territory Abuja in suit No. FCT/HC/CV/3066/2018 delivered on 31st day of October, 2018 by K. N. Ogbonnaya, J.
The appellant filed this appeal on the 1st November 2018, and transmitted the Record of Appeal on 27th November 2018.
On being served with the Record of Appeal, the 1st Respondent/Applicant, Dr. Uzochukwu Obiora Chira filed this motion seeking the following reliefs:
1. AN ORDER dismissing the Appeal No: CA/1080/2018 filed by the Appellant for lack of non-inclusion of the real judgment of the lower court appealed against, delivered on 31/10/2018 in their record of appeal compiled and transmitted by the registrar of appeal unit of FCT High Court Abuja to this appeal Court.
2. AND any further or other orders as this Honourable Court may deem fit to make in the circumstances of this case
The motion is laid on the following grounds:
1. That the appellant has failed to compile and transmit the record of appeal in this matter in accordance with the rules of this Court.
2. That the real judgment of the lower Court delivered on 31/10/2018 by Hon. Justice K .N Ogbonnaya in suit no: FCT/HC/CV/3066/2018 appealed against by the appellant is not transmitted to this Hon. Court of Appeal.
3. That the judgment of the lower Court included in the record of appeal and transmitted to this Court of Appeal in Appeal no: CA/A/1080/2018 by the Appellant is not the judgment of the lower Court appealed against to this Court by the Appellant.
4. That until the appellant compiles and transmits a record of appeal with the real judgment of the lower Court appealed there is no Appeal before this Court.
5. Order 8 Rules 7 (d) & 18 of the Court of Appeal Rules, 2016 was not followed in compiling and transmitting this record.
The motion is supported by a 14 paragraph affidavit deposed to by the 1st Respondent/Applicant. There are four Exhibits marked Exhibits A, B, C and D annexed to this affidavit. The 1st Respondent/Applicant also filed in support of this application a further affidavit of 28 paragraphs. There are two Exhibits namely Exhibit A and Exhibit B annexed to this further affidavit.
In response to this application the appellant/Respondent filed a 25 Paragraph counter affidavit deposed to by Adedamola Fanokun, a legal practitioner in the team of lawyers representing the Appellant/Respondent. There are eight (8) Exhibits annexed to this counter affidavit. The Exhibits are labelled Exhibits PDP 1, PDP 2, PDP 3, PDP 4, PDP 5, PDP 6, PDP 7, and PDP 8.
Considering the fact that this appeal is a pre-election appeal and the urgency attached thereto this motion was heard orally by us on Monday 17th December, 2018.
This appeal is a sister appeal to appeal No CA/A/1041/2018. This motion is also on all fours and terms with the motion filed in the other appeal. The Learned Counsel for the 1st Respondent/Applicant M. N. Mohammed Esq, relied on all the averments in his affidavit and further affidavit along with all the Exhibits annexed thereto. He referred to all his argument in the sister Appeal No. CA/A/1041/2018 and adopted his argument there in this motion. He urged the Court to dismiss the appeal of the Appellant/Respondent.
The Learned Counsel for the Appellant/Respondent E. Enoidem Esq., in response to this motion filed a counter affidavit of 25 paragraphs. There are eight Exhibits annexed thereto. These are Exhibits PDP1, PDP2, PDP3, PDP4, PDP5, PDP6, PDP7 and PDP8. He relied on all the paragraphs of the counter affidavit along with the Exhibits. He submitted that it is only a certified true copy of the judgment of the lower Court that is required in the record of Appeal. That the certification must be done by the Registrar of the lower Court. He relied on Sections 102, 104, and 168 of the Evidence Act, 2011. He contended that the Registrar of the lower Court had duly complied with the requirements of the law as enjoined in Order 8 Rule 1 of the Rules of this Court 2016. He urged the Court to hold that the record of appeal before the Court is proper, valid and regular. He urged the Court to dismiss the motion of the 1st Respondent/Applicant.
M.O. Ediawe Esq, Learned Counsel for the 2nd Respondent informed the Court that the 2nd Respondent is neutral and that he will abide by all the decision of the Court.
I have carefully gone through all the affidavits and the counter affidavit filed in this motion along with all the submissions of the counsel for the parties.
The issues raised here in this application are all the same with issues raised in the sister appeal No: CA/A/1041/2018. In fact the Learned Counsel for the Parties in this instant application alluded to and adopted their arguments in that other application. The crux of the issues raised in this application is whether the record of appeal transmitted with an unsigned judgment of the lower Court is properly before the Court as to make this appeal competent before the Court. The fact of this application as earlier pointed out are similar to the facts in the application earlier heard by this Court which deals with Appeal No CA/A/1041/2018. In this case, there are two judgments of the lower Court presented by the parties. One transmitted with the record of Appeal is unsigned by the trial Judge.
The second judgment is the one signed by the trial judge and it was brought in by the 1st Respondent/Applicant as Exhibit A to his further affidavit. The 1st Respondent/Applicant has in Exhibit B annexed to his main affidavit in support of his motion placed before this Court the letter of Disclaimer written by the Learned trial Judge disowning the judgment transmitted by the Registrar of his Court to this Court to enter the appeal of the appellant /Respondent. This disclaimer was not in any way countered by the appellant/Respondent. By this disclaimer and the judgment signed by the learned trial Judge which is Exhibit A annexed to the further affidavit of the 1st Respondent/Applicant, a pall of illegality has been cast on the judgment transmitted in the Record of Appeal.
The argument of the Learned Counsel for the Appellant/ Respondent that it is the certified true copy of the judgment of the lower Court that is required and that under Section 168 of the Evidence Act, 2011 there is presumption of regularity cannot stand. Presumption of regularity under Section 168 of the Evidence is a rebuttable presumption. A situation as in the instant appeal where the trial judge who wrote and delivered the judgment appealed upon, wrote a disclaimer that the unsigned judgment transmitted was not the judgment of the Court and the judgment signed by the Court is said to be the real judgment, such presumption of regularity cannot stand.
I adopt my views and decision on this issue and the issue of certification in the sister appeal No: CA/A/104 1/2018, where I said:
“The fact that the judgment transmitted was unsigned strengthens the disclaimer of the learned trial judge. It is settled law that it is the seal or signature on the judgment that authenticates the judgment. See G.T.B. V. Innoson Nigeria Ltd (2017) LPELR 42 308 (SC). The essence of authenticating a document is to show it as being that of, or binding on the person. An unsigned judgment has no credit or credence. It is valueless, worthless and good for the trash can. The concept of certification under our laws should not be misunderstood… It must be underlined here that the duty of certifying a document is a serious one. It is a duty that requires prudence, responsibility and diligence. An officer of Court such as a register of Court must show responsibility and diligence in ensuring that what is certified is the true copy of the original. A registrar of Court it is presumed, knows more than the ordinary man on the street that a judgment delivered by a Judge must be signed by the judge for it to be dubbed the judgment of the Court.”
Furthermore, it is necessary to mention that the Learned Counsel for the appellant did not dispute the signed judgment Exhibit A annexed to the further affidavit. He only submitted that if we pit the transmitted unsigned judgment side by side with the signed judgment Exhibit A annexed to the further affidavit they are substantially the same. This I must say is an admission that the unsigned judgment and the signed one are not the same.
An unsigned judgment of a trial Court has no credibility and has no value. The said judgement cannot be used to appeal, as in the instant case.
From the foregoing therefore, I hold that the application of the 1st Respondent/Applicant has merit.
This appeal founded on an unsigned and disowned judgment of the trial Court is incompetent and it is hereby struck out.
Parties are to bear their respective costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I agree.
Appearances:
Emmanuel Enoidem, Esq. with him, Adedamola Famokun, Esq. and Thompson Thompson, Esq.For Appellant(s)
M.N. Mohammed, Esq. with him, M. Eleyinmi, Esq., C. J. Okoyekwu, Esq. and Seidu Alfa, Esq. for the 1st Respondent.
M.O. Ediawe, Esq. for the 2nd Respondent.For Respondent(s)
