ADEMOLA OJO v. THE STATE
(2019)LCN/12554(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/IB/197C/2016
RATIO
APPEAL: INCOMPLETE RECORD OF AN APPEAL
“The established position of the law is that the parties and the Court are bound by the Record of Appeal and an Appellate Court is debarred and disentitled from reading into the record of appeal what is missing therefrom. A Court cannot and should not speculate on the content of the missing portions in a Record of Appeal transmitted to it. See NAL BANK PLC VS. AFRIMPEX ENTERPRISES LTD. (2007) ALL FWLR (PT. 386) PG. 767. In the case of MISS MINA JACK VS. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE & ORS. (2013) LEPLR 22867 (CA), this Court per Eko JCA held:
‘On the authorities of EKPEMUPOLO VS. EDREMODA (2009) 8 NWLR (PT. 1142) 166 and OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 251) 1, this Court has no duty to hear appeal on an incomplete record, especially when the missing portion is very vital. In other words, this Court has no jurisdiction or competence to hear any appeal on an incomplete record.” PER FOLASADE AYODEJI OJO, J.C.A.
APPEAL: THE RECORD OF APPEAL
“I am in agreement with him that hence the record of the lower Court transmitted to this Court for the determination of this appeal is incomplete, the proper order to make in the circumstance is one giving the Appellant another opportunity to start all over. In Fortune International Bank Plc. v. City Express Bank Ltd (2012) 14 NWLR (pt. 1319) 86, this Court held that the record of the appeal is the Bible of the case. It is settled law that an Appellate Court must be bound by the record, it must confine itself to the record and no more. It has no jurisdiction to go outside the record in the determination of an appeal. See C.O.P v. Okoye (2012) 14 NWLR (pt. 1320) 396.” ABUBAKAR MAHMUD TALBA J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
ADEMOLA OJO Appellant(s)
AND
THE STATE Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Ogun State High Court of Justice, Abeokuta Judicial Division delivered on the 2nd of March 2016 by Osinuga J. in charge NO. AB/IC/2007 between THE STATE VS. ADEMOLA OJO & 3 ORS. The charge against the Appellant as contained at page 3 of the Record of Appeal is as follows:
COUNT 1
STATEMENT OF THE OFFENCE
Conspiracy to Murder contrary to Section 324 of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria, 1978.
PARTICULARS OF OFFENCE
Ademola Ojo, Mufutau Sanni, Taiye Mustapha, Wasiu Akinbode and others now at large on or about the 15th day of August 2005 at Itako Olowofela Village via Ibafo in Abeokuta Judicial Division conspired to murder one Samsuden Tijani.
COUNT II
STATEMENT OF THE OFFENCE
Murder contrary to Section 316(2) and punishable under Section 319(1) of the Criminal Code Law (Cap 29) Laws of Ogun State of Nigeria, 1970.
PARTICULARS OF OFFENCE
Ademola Ojo, Mufutau Sanni, Taiye Mustapha, Wasiu Akinbode and others now at large on or about the 15th day of August 2005 at Itako Olowofela Village, via Ibafo in the Abeokuta Judicial Division conspired to murder one Samsuden Tijani.
All the accused persons including the Appellant denied each Count of the charge. After the close of evidence and adoption of the final written addresses of counsel, the learned trial judge delivered a considered judgment on the 2nd of March 2016. See pages 315 ? 408 of the Record. The trial judge found the Appellant and the three other accused persons guilty of the offences of conspiracy to commit murder and murder and sentenced all of them to death by hanging.
Aggrieved by this decision the Appellant filed the instant appeal. The Notice of Appeal is at page 409 of the Record. The original Notice of Appeal filed on the 29th of March, 2016 was amended consequent upon an order to so do granted on the 26th of June, 2017. The Amended Notice of Appeal filed on the 4th of July, 2017 contains six grounds of appeal.
The grounds of appeal without their particulars are as follows:
1) The trial judge erred in law when he convicted the accused persons for the offences of conspiracy and murder.
2) The learned trial judge erred in law when he held that the prosecution has proved the offence of conspiracy against the Appellant beyond reasonable doubt.
3) The learned trial judge erred in law when he held that the Appellant was at the scene of the crime.
4) The learned trial judge erred in law when he held that the prosecution has proved the offence of murder against the accused person beyond reasonable doubt.
5) The learned trial judge erred in law and therefore came to a wrong conclusion which occasioned miscarriage of justice when he held that the accused persons are guilty as charged on each counts of charge of conspiracy and murder.
6) The judgment is against the weight of evidence, unreasonable, unwarranted and cannot be supported having regard to evidence before the trial Court.
The Reliefs sought by the Appellant before this Court are as follows:
RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. An Order of Court allowing this appeal and setting aside the conviction and sentence imposed on the Appellant by the High Court of Justice, Ogun State of Nigeria presided by Honourable Justice F. O. Osinuga and the sentence delivered on the 2nd of March, 2016 in charge No AB/IC/07.
ii. An Order discharging and acquitting the Appellant.
iii. Any other or further Order that this Honourable Court may deem fit to make in the circumstances.
Briefly, the facts of the case leading to this appeal are as follows:
In the early hours of 15th August, 2005 some persons suspected to be members of the Oodua Peoples Congress (OPC) invaded Itako Olowofela Village. During the invasion which lasted between 1. 00a.m and 7.00a.m, it was alleged that the invaders tied the deceased who was the Baale of the village and other men in the village with rope and beat them up. The deceased who was thereafter taken to the hospital was confirmed dead. The Appellant and the other co-accused persons were alleged to be part of the group of persons that invaded the village and carried out the dastardly acts which led to the death of the deceased, Samsudeen Tijani.
Parties filed and exchanged briefs of argument. The Appellant?s Amended Brief of Argument was filed on the 29th of September 2017. The Respondent?s Brief of Argument was filed on the 19th of June 2018.
Learned Counsel to the Appellant formulated five issues for determination in the Appellant?s Brief of Argument to wit:
i) Whether the trial Court was not in error in convicting the Appellant of conspiracy and murder despite the failure of the prosecution to discharge the mandatory burden of proof beyond reasonable doubt and failure to call other victims who were at the scene of crime apart from PW1, PW2, PW3 and PW4 (who were relatives of the deceased) was not fatal to the prosecution case.
ii) Whether the learned trial judge did not misdirect himself and came to a wrong conclusion on the facts given in evidence by the prosecution witnesses against the Appellant.
iii) Whether the failure of the trial Court to properly evaluate the evidence before it did not occasion a miscarriage of justice.
iv) Whether the learned trial judge properly evaluated the defence of alibi raised by the Appellant.
v) Whether the trial Court was not in error in convicting the Appellant of conspiracy and murder when there is nothing on the face of the Record of Appeal transmitted to this Honorable Court showing the proceedings of Abeokuta Judicial Division was actually transmitted to the learned trial judge as rightly observed by him at page 312 of the record for proper evaluation and consideration before arriving at his judgment.
Learned Counsel for the Respondent for his part formulated four issues for determination to wit:
i) Whether from the totality of the evidence adduced at the trial, the Respondent proved the charge of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act No.18 of 2011.
ii) Whether the learned trial judge properly evaluated the evidence before him at the trial in this case so as to warrant the conviction of the Appellant.
iii) Whether the trial Court was right in rejecting the defence of alibi raised by the Appellant in this case.
iv) Whether the trial Court was not in error in convicting the Appellant of conspiracy and murder when there is nothing on the face of the Record of Appeal transmitted to this Honorable Court showing the proceedings of Abeokuta Judicial Division was actually transmitted to the learned trial judge as rightly observed by him at page 312 of the record for proper evaluation and consideration before arriving at his judgment.
Learned Counsel on both sides canvassed arguments in support of the issues identified in their respective briefs of argument. Upon a perusal of the grounds of appeal and the Briefs of Argument of parties it seems to me that the issue No. 5 raised in the Appellants Brief of Argument and issue No. 4 in the Respondents Brief is in the nature of Preliminary Objection which I believe should be resolved first. Appellants issue No. 5 is as follows:
‘Whether the trial Court was not in error in convicting the Appellant of conspiracy and murder when there is nothing on the face of the Record of Appeal transmitted to this Honorable Court showing that the proceedings of Abeokuta Judicial Division was actually transmitted to the learned trial judge as rightly observed by him at page 312 of the record for proper evaluation and consideration before arriving at his judgment.’
RESPONDENT’S ISSUE No. 4
Whether the trial Court was not in error in convicting the Appellant of conspiracy and murder when there is nothing on the face of the Record of Appeal transmitted to this Honorable Court showing that the proceedings of Abeokuta Judicial Division was actually transmitted to the learned trial judge as rightly observed by him at page 312 of the record for proper evaluation and consideration before arriving at his judgment.
Appellants Counsel in arguing his issue No. 5 submitted in paragraph 4.17 of the Appellant’s Brief that the Record of Appeal transmitted to this Court runs foul of Order 17 Rule 9(1) (c) of the Court of Appeal Rules 2016 which requires that the record from the Court below acting in its original jurisdiction should mandatorily contain legibly typed notes of evidence and minutes of the proceedings of the Court. He further submitted in paragraph 4.18 that the Record of Appeal compiled and transmitted to this Court on behalf of the Appellant do not contain the judge’s notes of evidence given in chief and under cross examination by the 1st and 2nd prosecution witnesses as the judge’s notes at page 178 of the record starts with the evidence of the 3rd prosecution witness. He said the evidence in chief and cross examination of PW7 and PW8 were conspicuously missing.
Counsel contended at paragraph 4.21 that there is nothing on record to show that the trial judge received the proceedings at Abeokuta as observed on 20th August, 2015. He submitted in paragraph 4.24 that the evidence of PW1, PW2, PW7 and PW8 as well as what transpired before the lower Court on 10th December, 2008, 30th October, 2008 and 26th October, 2009, and from 20th October, 2015 till February 15th, 2016 which are very vital and important parts of the proceedings are not in the record transmitted to this Court.
Arguing the Respondents issue No. 4, learned counsel to the Respondent conceded in paragraph 7.02 that the Record of Appeal compiled and transmitted to this Court on behalf of the Appellant does not contain the judge?s notes of the evidence given in chief and under cross-examination by PW1, PW2, PW7 and PW8. He however contended that these missing pieces of evidence are contained in the additional Record of Appeal compiled and the original record book of the trial Court transmitted by the Respondent and deemed transmitted by the Order of this Court made on the 24th day of April, 2014. He further conceded in paragraph 7.02 that the additional Record of Appeal and the original record book at the trial Court transmitted are not totally legible as some parts were damaged by rain where it was kept in the High Court Registry, Abeokuta. He said it will be impossible to get a totally legible Record of Appeal apart from those already transmitted due to the damage caused by the rain. At page 7.08 of the Respondents brief, counsel submitted that the damaged portions of the record are not material enough to affect the decision of this Court and urged us to hear and determine the appeal on the damaged record. He made an alternative submission in paragraph 7.09 that in case we are of the opinion that the missing portions of the record are so material as to affect our decision, he urged us to order a retrial by the lower Court.
Order 17 Rule 9(1) of the Court of Appeal Rules 2016 provide as follows:
9(1) The Record of Appeal in appeals or applications relating to appeals from the Court below acting in its original jurisdiction in criminal cases shall contain legible typed, stenciled and cyclostyled, or printed copies of the following items arranged in this order:
a) The index;
b) The charge or information;
c) The judges notes of the evidence and minutes of the proceedings.
Provided that if a shorthand note of the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or in substitution of the judge?s notes, as he may direct.
By virtue of Order 17 Rule 9(c) above, the record of appeal in the instant Criminal Appeal must contain legibly typed, stenciled and cyclostyled or printed copies of the lower Court’s notes of the evidence and minutes of the proceedings. A copy of the transcript thereof may be included, either in addition to or in substitution of the lower Court’s notes if a shorthand note of the hearing has been taken. It also follows that the notes taken by the judge of the evidence and minutes of proceedings are essential parts of the record which should be compiled and transmitted to this Court from the trial Court. It is contended on behalf of the Appellant that the judge’s notes of the evidence and minutes of proceedings of 24th, October 2017 when Pw1 and Pw2 gave evidence and were cross examined is not contained in the record of appeal transmitted to this Court. It is further contended that the judge?s notes and minutes of the proceedings of 25th May, 2009 and 8th July, 2009 when Pw7 and Pw8 gave their respective testimonies is also not in the record of appeal.
The law is that an appellate Court should be wary of deciding appeals before it on incomplete record unless parties consent that they should be so heard. In the case of OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851) PG. 1, the Supreme Court per Tobi JSC at page 23 Paragraphs E – F held thus:
As an Appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. 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 of 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 the hearing of the appeal in the interest of justice
Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial in the matter if the missing portion of the record is material to the appeal.
The parties herein have not consented to proceed on the present record. They have both joined issues on the state of the transmitted record.
Order 8 Rule 1 of the Extant Rules of this Court places the burden of compiling and transmitting records on the registrar of the Court below. Where he fails to do so, the lot falls on the Appellant to do the compilation and transmission.
It is further provided in Order 8 Rule 6 that where a copy of the record compiled and transmitted is served on any of the parties and the party feels such record is incomplete such party may compile and transmit additional records of appeal.
By a Motion on Notice filed on the 10th January, 2018, the respondent sought to compile and transmit additional records to this Court. He further sought to transmit the original record book of the trial Court. In the affidavit in support of the said application deposed to by one Fatade Omoniyi particularly at paragraphs 11 – 15 thereof, the respondent made it clear that pages 00505 to 00532 of the criminal record of appeal have been affected by rain. He stated that certified true copy of the affected part of the record is part of the additional record sought to be transmitted. The Appellant filed a counter affidavit deposed to on his behalf by one Babafemi Iyiola who confirmed at paragraphs 9 – 14 of his affidavit the destruction of the missing portion by rainfall long before the judgment was delivered. He deposed further that the additional record does not contain all the missing portions. The application to transmit the additional record was granted by this Court on the 24th of April, 2018.
Sequel to the order of Court granted on the 24th of April 2018, additional record of appeal was compiled and transmitted to this Court. The original criminal record book of the lower Court was also transmitted.
Pages 1- 12 of the additional record contain legible and clearly typed judge’s notes and the proceedings of 25th May, 2009 and 8th of July, 2009. The proceedings include the record of the evidence in chief and the cross examination of PW7 and PW8. I find the record of the evidence of PW7 and PW8 in the record before us is in order and I so hold.
The evidence of PW1 and PW2 is contained in the additional record of appeal. The judge’s notes and proceedings of 24th October, 2007 containing the evidence adduced at the trial by PW1 and PW2 are also contained therein. I have read through the additional record particularly the notes of the evidence given by PW1 and PW2 at the trial. One thing that is certain is that the notes are incomplete. Words and Sentences that make up the evidence of PW1 and PW2 are conspicuously missing.
I have labored to make sense of the evidence of PW1 and PW2 as contained in the additional record and I am unable to do so. I have also gone through the original criminal record book of the lower Court which contains the handwritten notes of the trial judge of the evidence of PW1 and PW2 and the record of what transpired in Court on the 24th of October 2007. The record of the evidence of PW1 and PW2 in the original criminal record book is illegible and I so hold. A substantial part of the notes taken by the trial judge on that day have been obliterated by water. It is on record that getting full records of the instant appeal from the lower Court would be impossible due to damage to part of the record by rainfall at the Registry of the Lower Court.
From the record of appeal, the additional record of appeal and the original criminal record book of the lower Court transmitted to this Court for the determination of this appeal, the following facts are established: The notes of the lower Court produced before this Court of the evidence given by PW1 and PW2 at the trial Court is illegible. Part of the notes of the evidence of PW1 and PW2 given at the trial of the Appellant is missing as the record has been destroyed by rain. Full and complete notes of the evidence of PW1 and PW2 cannot be produced or made available to this Court in this appeal. Part of the record required for this appeal particularly the evidence of PW1 and PW2 is lost. The record of the instant appeal is thus incomplete.
One of the complaints of the Appellant in this appeal is that the judgment of the lower Court is against the weight of evidence. See ground 6 of the Grounds of Appeal. The Appellant further complained that the lower Court erred when it relied on the evidence of the prosecution witnesses to convict him. He complained that the evidence of the prosecution witnesses including that of the PW1 and PW2 is full of material contradictions. Appellant’s Counsel argued in the Appellant’s Brief of Argument that the evidence of PW1, PW2, PW3 and PW4 contain material contradictions on the point whether the Appellant was present at the scene of the incident which led to the death of the deceased as well as his role.
The lower Court in its judgment relied heavily on the evidence of PW1 and PW2 in coming to the conclusion that the Appellant and the 2nd accused person were at the scene of crime and actively participated in the incident which culminated in the death of the deceased. The lower Court in its judgment held at pages 397 – 398 as follows:
Certainly, the above piece of evidence of the PW2 as stated in Exhibit B referred to by learned counsel goes beyond just being present at the scene of crime.
It is also the submission of the 2nd accused’s counsel that only the relatives of the victim were called as witness. It is trite that prosecution is not bound to call a host of witnesses. At any rate PW1, PW2, PW3 and PW4 gave eye witness account and positively identified the accused person.
The Court further found at pages 399 – 400 as follows:
‘While the testimonies of the 1st, 2nd and 3rd PWs both in chief and under cross examination respectively placed the accused persons at the scene of crime. The PW4 gave eye witness account of the act of the accused persons.’
From all the foregoing, it becomes imperative for this Court to consider the evidence of PW1 and PW2 given at the trial for a just determination of this appeal.
The Record of Appeal does not contain the legible evidence of PW1 and PW2 relied upon by the lower Court in its judgment in making its findings and conclusion.
The established position of the law is that the parties and the Court are bound by the Record of Appeal and an Appellate Court is debarred and disentitled from reading into the record of appeal what is missing therefrom. A Court cannot and should not speculate on the content of the missing portions in a Record of Appeal transmitted to it. See NAL BANK PLC VS. AFRIMPEX ENTERPRISES LTD. (2007) ALL FWLR (PT. 386) PG. 767.
In the case of MISS MINA JACK VS. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE & ORS. (2013) LEPLR 22867 (CA), this Court per Eko JCA held:
‘On the authorities of EKPEMUPOLO VS. EDREMODA (2009) 8 NWLR (PT. 1142) 166 and OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 251) 1, this Court has no duty to hear appeal on an incomplete record, especially when the missing portion is very vital. In other words, this Court has no jurisdiction or competence to hear any appeal on an incomplete record.
Order 8 Rule 7(d) of the Court of Appeal Rules 2011 makes it imperative that every Record of Appeal shall contain a copy of the Notice of Appeal. Therefore, the Notice of Appeal is a very vital portion of the Record of Appeal.
On what the attitude of a Court should be to missing evidence from the Record of Appeal, the Supreme Court per Kastina-Alu JSC in the case EDJEKPO VS. OSIA (2007) 8 NWLR (PT. 1037) PG. 635 held at pages 652 ? 653 as follows:
‘The question I am unable to answer is whether the summary made by the learned trial judge is a correct and true reflection of the testimonies of DW1, DW2, DW3 and DW4. I think it is risky and presumptuous to assume that the evidence of these defence witnesses is irrelevant to the proper and just determination of this case. To come to a decision one way or the other, it is vitally important for the Court below and this Court to see and read for ourselves the evidence of these witnesses.’
In the circumstances, where the entire evidence called by a party is missing in the compiled Record of Appeal, it will be difficult if not impossible to say with certainty that there has been no miscarriage of justice. In the absence of such evidence, am unable to hold that the trial judge clearly comprehended the entire case supported by the evidence. In the circumstances, I find myself unable to support the judgment of the trial Court. It is my view that this is a proper case for an order of retrial.
See also CHIEF AJIBOWU A. OWOADE VS. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR 9280 (CA).
The lower Court found PW1 and PW2 to be eye witnesses to the incident which led to the death of the deceased. Their evidence was treated by the lower Court as eye-witness account. They were said to have identified the Appellant as one of those present and who took part in the act which led to the death of the deceased and relied on their evidence in reaching its decision. They are thus vital witnesses in this case. It is therefore very important for this Court to see for ourselves and read the evidence of these witnesses as held by the Supreme Court in the case of EDJEKPO VS. OSIA (SUPRA).
The evidence of PW1 and PW2 which are missing from the record was relied upon by the lower Court as eye witness accounts of the incident. Part of the complaint of the Appellant is that there were material contradictions in the evidence of the prosecution witnesses including that of PW1 and PW2. Having not seen the evidence of PW1 and PW2 given at the trial, can we determine whether the lower Court was right to hold there was no material contradictions in the evidence of prosecution witnesses? I do not think so. There is evidence that the missing part of the record cannot be found as it has been destroyed by rain. In the case of OGIDI VS. THE STATE (2005) 5 NWLR (PT. 918) PG. 286, the Supreme Court held that the provisions of Section 36(7) of the 1999 Constitution require a Court trying any criminal offence to keep a record of proceedings. It is therefore absolutely important for Courts involved in the trial of such offences to scrupulously keep a record of proceedings in accordance with the demands of the Constitution. Failure to do may vitiate the trial as a nullity.
In the instant appeal, the Record of Appeal is incomplete because it was destroyed by the rain. Failure to transmit the complete Record of Appeal is not the fault of the Appellant and he should not be penalized for same. Case files and Record of Proceedings need to be better kept and protected by our Courts to preserve the very essence of the judiciary. If case files are not properly kept by the lower Court, there will be no record for the Appellate Courts to use in determining appeals. This has direct implications on the Constitutional rights of parties to appeal a judgment where dissatisfied. There is therefore the need to upgrade the system of case file and record preservation in our Courts. If all records are allowed to be destroyed by rains, the Appellate Courts would only be left with dealing with matters where they have original jurisdiction. In matters such as this where the record of proceedings or part thereof is missing the Courts have always leaned towards setting aside the lost missing judgment and depending on the circumstances of the case order a retrial. See ENGINEERING ENTERPRISE CONTRACTOR CO. OF NIG. VS. A. G. KADUNA STATE (1987) 2 NWLR (PT. 57) PG. 381; SYSTEM METAL INDUSTRIES LTD VS. EHIZO (2003) 7 NWLR (PT. 820) 460 and OKOCHI VS. ANIMKWOI (SUPRA) where the Supreme Court held thus:
“… Although the decision to order a retrial will protract the litigation, an appellate Court has no option in the matter.
It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on an incomplete record.
Having found and held that the record of the lower Court transmitted to this Court for the determination of this appeal is incomplete, the proper order to make in the circumstance is one giving the Appellant another opportunity to start all over. I hereby quash the conviction and sentence of the Appellant handed down by the lower Court on the 2nd of March, 2016 for the offences of conspiracy to commit murder and murder on grounds that material part of the record of the instant appeal is lost. I further order that the charge No: AB/IC/2007 against the Appellant be remitted back to the Ogun State High Court for trial de novo before another judge.
NONYEREM OKORONKWO, J.C.A.: Appeal is a rehearing of a case but it is done by a review of the record of trial.
As my learned brother Folashade Ayodeji Ojo found, the record of appeal transmitted, omitted very important record of evidence of vital witnesses and is illegible in parts such as to make parts of the records indecipherable. No proper appeal can be based on such record. In such situation, the safe approach to attain justice is a retrial before another Court.
I therefore agree with the lead judgment in this appeal and abide by the result. In addition, I order that the retrial shall be before another judge.
ABUBAKAR MAHMUD TALBA, J.C.A.: The Judgment of my learned brother FOLASADE AYODEJI OJO, JCA in this appeal was read by me before its delivery today. I am in agreement with him that hence the record of the lower Court transmitted to this Court for the determination of this appeal is incomplete, the proper order to make in the circumstance is one giving the Appellant another opportunity to start all over. In Fortune International Bank Plc. v. City Express Bank Ltd (2012) 14 NWLR (pt. 1319) 86, this Court held that the record of the appeal is the Bible of the case.
It is settled law that an Appellate Court must be bound by the record, it must confine itself to the record and no more. It has no jurisdiction to go outside the record in the determination of an appeal. See C.O.P v. Okoye (2012) 14 NWLR (pt. 1320) 396.
Consequently in the absence of a complete record of appeal, I also quash the conviction and sentence of the Appellant handed down by the lower Court on the 2nd day of March, 2016. The charge No: AB/1C/2007 against the Appellant is hereby remitted back to the Chief Judge of the High Court of Justice Ogun State for trial denovo.
Appearances:
Babafemi Iyiola, Esq.For Appellant(s)
A.M. Adebayo, Esq. (Chief State Counsel, Ogun State Ministry of Justice)For Respondent(s)
