ABDULLAHI IBRAHIM V. AHMED IBRAHIM
(2011)LCN/4903(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
CA/IL/57/2010
RATIO
RECORD OF APPEAL: PRINCIPLE OF LAW GOVERNING THE COMPILATION AND TRANSMISSION OF THE RECORD OF APPEAL TO THE COURT
Order 8 Rule 1 of the court of Appeal Rule, 2011 says:”The registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court” Of course, for the Registrar to do that, the parties have to settle on the documents to be included in the Record of Appeal, and the Appellant has to pay for the production of the Record. See order 8 Rule (2) and (3). The law, however, permits the Appellant to prepare (compile and transmit) the Record of Appeal, where, at the expiration of the sixty days, after the filing of the Notice of Appeal, the Registrar of the Lower Court failed or neglected to compile and transmit the Record of Appeal. In that circumstance, “it shall become mandatory for the Appellant to compile the records of all document, and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect.” (See order 8 Rule 4). In that situation, the Respondent on being served with such Record of Appeal compiled by the Appellant is at liberty to file additional records which may be necessary in disposing of the Appeal, if he considers same necessary and has 15 days to compile and transmit the said additional records of Appeal: Order 8 Rule 7 states what constitutes the contents of every Record of Appeal: “(a) the index; (b) a statement giving brief particulars of the case and including a schedule of the fees paid; (c) copies of the documents settled and compiled for inclusion in the record of appeal; and (d) a copy of the notice of appeal and other relevant documents, filed in connection with the appeal.” By order 8 Rule 9; “Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower court. Provided that it shall not be necessary for copies of individual document to be separately certified but the registrar of the court below shall certify as correct each copy of the Record transmitted in accordance with these Rules.” And such Record of Appeal has to be transmitted to the appellate court within the time stipulated (that is 30 days) for the compilation and transmission. PER ITA G. MBABA J.C.A
RECORD OF APPEAL: EFFECT OF THE FAILURE TO COMPILE AND TRANSMIT THE RECORD OF APPEAL ON THE APPEAL
…where there is failure to compile and transmit Record of Appeal, under Rule (Order 8, rule 4), the Appeal may be dismissed. See order 8 Rule 18. PER ITA G. MBABA J.C.A
RECORD OF APPEAL: POSITION OF THE LAW ON THE DUTY OF THE RESPONDENT WHERE BOTH THE REGISTRAR AND APPELLANT HAVE FAILED TO COMPILE AND TRANSMIT RECORD OF APPEAL PURSUANT TO ORDER 8 RULE 18 OF THE RULES OF THE COURT
By Order 8 Rule 18 of the Rules of the court- “If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent (if participating in the appeal) may by notice of motion move the court to dismiss the appeal” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI IBRAHIM Appellant(s)
AND
AHMED IBRAHIM Respondent(s)
ITA G. MBABA J.C.A, (Delivering the Leading Judgment): Appellant in this appeal, ABDULLAHI IBRAHIM Esq., who also appeared in person to argue the appeal, was the plaintiff (claimant) in suit No. KWS/16/2008, at the Kwara State High Court, presided over by I.B. Garuba J. Before the suit could be heard, which sought redress against the Respondent for breach of contract for sale of land and agency contract, the Respondent, on receipt of the processes, filed a notice of preliminary objection, together with written address in support, challenging the jurisdiction of the court to hear the Appellant’s suit, on the grounds that.
(i) there were no proper parties before the court;
(ii) the suit constituted abuse of court process;
(iii) the claimant had no locus standi to institute the action, and
(iv) it was in the interest of Justice to dismiss the suit of the claimant in its entirety.
The Appellant filed what he called “Counter Preliminary objection” without written address in support, but gave oral address at the hearing of the objections. After the fire works, the learned trial fudge resolved the issues against the Appellant, holding that the subject matter in the case KWS/16/2008 was similar to and on the same ground with that or KWS/61/2008 also filed by the Appellant, after filing the suit No. KWS/16/2008, That Ruling was delivered on 12/3/2008.
Appellant brought this Appeal against that Ruling of the trial Judge, saying that there was no shred of evidence before the trial Court as to the similarity / sameness of the subject matters of the two suits or shred of evidence as to the commencement date of hearing of the said two cases before the trial court.
Appellant filed his notice and grounds of Appeal on 25/5/09 at the lower court and raised 3 grounds of Appeal. Appellant thereafter filed his Brief of argument on 3/8/2010, but same was not responded to by the Respondent and on 2/12/2010 Appellant filed a motion praying us to set down the Appeal for hearing in default of the Respondent’s Brief of argument. That motion was heard and granted on 9/12/2010.
On 13/10/11, when this Appeal came up for hearing the Respondent had still not filed any process and the Appellant was-heard. He adopted his said Brief and urged us to allow the Appeal.
Strangely, on page 2 of the Appellant’s Brief, he raised, what he called, “PRELIMINARY ISSUE; as follows:
“3.1 NOTICES TO REGARD AFFIDAVIT OF PROCEEDINGS AS RECORD OF PROCEEDINGS OF TRIAL COURT.
IN THE COURT OF APPEAL IN NIGERIA IN THE ILORIN JUDICIAL DIVISION HOLDEN AT ILORIN
Appeal No. CA/IL/57/2010
Suit No. KWS/16/2008
BETWEEN:
ABDULLAHI IBRAHIM Appellant
AND
1. AHMED IBRAHIM Respondent
3.2 TAKE NOTICE that the appellant in his brief of argument shall rely on all paragraphs of the affidavit of proceedings sworn on 11/5/2010 being at page 25-26 of the record of appeal AND hereby seeks the LEAVE of this honourable court to regard the said affidavit as the record of proceedings between the parties for all issues to be determined in this appeal.
TAKE FURTHER NOTICE that the grounds of notification are:
(1) The Appellant witnessed the proceedings before the trial court from the beginning to the end of trial
(2) The Appellant applied to the Registry of trial court for compilation of the record of appeal by the Registry
(3) The Registry refused and neglected to so compile the record.
(4) The Appellant notified the Registry of his self compilation of the record of this appeal.
(5) The appellant has included the affidavit of proceedings in the record of this appeal.”
The said “NOTICES” were issued and signed by the Appellant on 30/7/10, with address for service on the Respondent. (See page 2 of the Brief).
There is nothing before this court to show that the Appellant ever applied to this court for leave to compile and transmit the Record of Appeal in this appeal, and to deem the purported Record of Appeal as duly compiled and transmitted to this court.
At the time of hearing this Appeal, on 13/10/11, Appellants attention was drawn to his said “preliminary issue” and he never said anything about it, or sought the leave of this court in respect thereof (of course, he could not have, as the alleged NOTICE were never brought as a MOTION, nor filed as required by law).
Can it therefore be said that there is a RECORD OF APPEAL, carrying proceeding of the case at the Lower court, appealed against by the Appellant before this court, upon which this Appeal can be premised?
My answer to this is in the negative.
Order 8 Rule 1 of the court of Appeal Rule, 2011 says:
“The registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court”
Of course, for the Registrar to do that, the parties have to settle on the documents to be included in the Record of Appeal, and the Appellant has to pay for the production of the Record. See order 8 Rule (2) and (3).
The law, however, permits the Appellant to prepare (compile and transmit) the Record of Appeal, where, at the expiration of the sixty days, after the filing of the Notice of Appeal, the Registrar of the Lower Court failed or neglected to compile and transmit the Record of Appeal. In that circumstance, “it shall become mandatory for the Appellant to compile the records of all document, and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect.” (See order 8 Rule 4).
In that situation, the Respondent on being served with such Record of Appeal compiled by the Appellant is at liberty to file additional records which may be necessary in disposing of the Appeal, if he considers same necessary and has 15 days to compile and transmit the said additional records of Appeal:
Order 8 Rule 7 states what constitutes the contents of every Record of Appeal:
“(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal; and
(d) a copy of the notice of appeal and other relevant documents, filed in connection with the appeal.”
By order 8 Rule 9;”
“Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower court. Provided that it shall not be necessary for copies of individual document to be separately certified but the registrar of the court below shall certify as correct each copy of the Record transmitted in accordance with these Rules.”
And such Record of Appeal has to be transmitted to the appellate court within the time stipulated (that is 30 days) for the compilation and transmission.Of course, the Record of Appeal filed by the Appellant in this Appeal falls far short of what is contemplated by Order 8 Rules 4 and 9. The document merely carries a stamp “CERTIFIED TRUECOPY” on the top of the first and last pages without indicating who certified it, nor the signature or the Registrar of the court below. Appellant may have used the stamp of his office to print on document!
The process carries the stamp of the court of Appeal, and 12/7/2010, as the date of filing and that was over one year, after the filing of the Notice of Appeal on 25/5/09.
On page 34 of the Appellant’s Record of Appeal, is letter purportedly written to the Deputy Chief Registrar (litigation) of the High Court, Ilorin, titled:
“APPLICATION FOR PREPARATION OF RECORD OF APPEAL”, wherein Appellant wrote;
“I am the applicant was clamant/responded (sic) in the above mentioned suit where I.B. Garba J. delivered the Ruling on 12th March 2008 in respect of preliminary objection of the defendant In the Ruling aforesaid, the honourable trial judge dismissed the substantive suit of the applicant The Applicant is at the readiness to pay the official and non over (sic) charged fees or costs on demand.
Yours faithfully,
Signed
Abdulahi Ibrahim
Appellant-in-person”
That letter, which failed to state what it wanted, was dated 9th March 2010, (that is, over 8 months, after the filing of the Notice of Appeal).
Even if the Registrar of the lower court had failed or neglected to compile and transmit the Record of Appeal after 60 days of filing the Notice of Appeal, Appellant had a duty to do so within 30 days of that failure or neglect or refusal by the registrar. And where he had to compile the Record of Appeal after the stipulated period, he required the order of court granting him leave and extension of time to do so, under Order 7 Rule 10 of this Courts Rules. He has not obtained that order.
There is also a letter by the Appellant on page 35 of his Record of Appeal where he notified the Deputy Chief Registrar (litigation) of his “….SELF COMPILATION OF RECORD OF PROCEEDINGS,” where he said:
“This is to officially bring to your notice that the appellant who was the claimant/respondent in the above captioned case has finally compiled the record of proceedings and the record of appeal by himself and ready to transmit same to the court of Appeal, Ilorin Division.
The self compiled records are as a result of the technical refusal and neglect of the Registry to compiled the said records by way of command to go and have it compiled by the registry of Osi Division of Kwara State High Court despite the facts that the case was never filed nor heard nor determined by the Osi Division …”
The letter was written on 5/7/10 by the Appellant.
Apart from the delay in under taking the compilation and the failure to seek leave and extension of time to deem it properly prepared, the Appellant sought to rely on the affidavit he deposed to therein and urged us “to regard same as the record of proceedings between the parties for all issues to be determined in this appeal”
Of course, that cannot be. By law, therefore, there is no Record of Appeal before this Court on which to predicate this Appeal. And where there is failure to compile and transmit Record of Appeal, under Rule (Order 8, rule 4), the Appeal may be dismissed. See order 8 Rule 18.
I hold that the Appeal is therefore incompetent and is accordingly dismissed.
There is no order as to cost.
TIJJANI ABDULLAHI (PJ), JCA: The views expressed and the conclusion reached with regards to compilation of records by my learned brother Mbaba, JCA in the lead Judgment is same with mine.
For the reasons lucidly set out in the lead judgment which I adopt as mine the appeal is not sustainable in law and same is hereby dismissed. I abide by the consequential order contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment just pronounced by my learned brother; Mbaba, J.C.A., which I had the advantage of reading in draft.
There was no compiled record of appeal as envisaged by Order 8 Rule 7 of the Court of Appeal Rules, 2011 (Rules of the Court) to give life to the appeal. By Order 8 Rule 18 of the Rules of the court-
“If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent (if participating in the appeal) may by notice of motion move the court to dismiss the appeal”
Here the appeal was heard on the appellant’s brief alone. The discovery that the appellant did not cause the record of appeal to be prepared and transmitted in accordance with the Rules of the Court, entitles the Court to use its inherent powers to dismiss the appeal under Order 8 Rule 18 of the Rules of the Court and the appeal is dismissed.
Appearances
For Appellant
AND
For Respondent
