AKARAT v. YABRACKS (2021)

AKARAT v. YABRACKS

(2021)LCN/15163(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/G/118/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

YABRACKS SALEH AKARAT APPELANT(S)

And

JAPHET SAGALGAT YABRACKS RESPONDENT(S)

RATIO

PURPOSE OF TENDERING EXHIBITS IN COURT

As has been held, exhibits are not tendered and admitted in Court for the fun of it. They are for a purpose, that is, to assist in the full and proper determination of all the issues arising in the case before the Court. In addition, since they form a part of the Record of proceedings of the Court in respect of the case, they must be examined, scrutinized and assessed for the just determination of the case. See Olaiya V Lawal (2019) LPELR-48205(CA) 21-22; E-A; Bida V Abubakar (2011) 5 NWLR (Pt. 1239) 130; Lamidi V State (2016) LPELR-41320(CA) 47-48, E-B; Buba V State (1992) 1 NWLR (Pt. 215) 1, 17, per Mukhtar, JCA (as he then was); Ayinde V Salawu (1989) 3 NWLR (Pt. 109) 297, 314-315. The importance of an exhibit tendered in evidence in Court cannot be over-emphasized in adjudication. An exhibit denotes a document, record, or other tangible objects formally introduced as evidence in Court. See University of Calabar V Effiong (2019) LPELR-47976(CA) 33-34, C-E, per Ogbuinya, JCA; Lucky V State (2016) 13 NWLR (Pt. 1528) 128. PER JUMMAI HANNATU SANKEY, J.C.A.

EFFECT OF THE ABSENCE OF THE EXHIBITS TENDERED AT THE TRIAL COURT ON THE JURISDICTION OF THE APPELLATE COURT

… the exhibits tendered at the trial Court were not transmitted to the appellate Court by the Registrar of the trial Court to assist the appellate Court in its review of the decision appealed against. Indeed, there is no way the lower Court could have granted the parties, in particular the Appellant who rightly raised it, a fair hearing in the absence of those exhibits which should have formed the fulcrum of its decision in reviewing the decision of the trial Court, given the trial Court’s absolute reliance on them. This explains why the Supreme Court and this Court have consistently held that a trial or appellate Court must see the Exhibits tendered before the trial Court before taking any decision on them – Philip V Nigerian Army (2016) LPELR-40255(CA) 14, C-A, per Abba-Aji, JCA (as she then was); Yinusa V State (2016) LPELR-41384(CA) 28, A-C, per Daniel-Kalio, JCA; Haruna V AG Federation (2012) LPELR-7821(SC); Ekpemupolo V Edremoda (2009) 3 MJSC 87, A-B. Directly on this point is the case of Olorunyolemi V Akhagbe (2010) 18 NWLR (Pt. 1195) 48, 51 where it was held – “…The exhibits in particular were yet to be transmitted from the High Court to the Court of Appeal and that made whatever Records of Appeal that was compiled grossly inadequate or incomplete for hearing at the Court of Appeal.” Again, in Buhari V Obasanjo (2003) LPELR-813(SC) 12-13, per Belgore, JSC where it was held as follows: “It is always of paramount importance to have all the records in an appeal before the appellate Court. The proceedings including the exhibits and judgment are the materials necessary for the appellate Court to decide whether the trial Court’s Judgment was right or wrong. No Court can do justice in any case when all the relevant facts available are not placed before it.” It is therefore sound law that an appellate Court may not hear an appeal without the transmission of exhibits tendered in evidence during the trial. While exhibits are not part of the Record of proceedings, they are undoubtedly part of the Record of Appeal to be transmitted to an appellate Court. By proceeding to determine the Appeal in the absence of the exhibits, the lower Court acted in error. PER JUMMAI HANNATU SANKEY, J.C.A.

CONDITIONS TO BE FULFILLED FOR A COURT TO BE VESTED WITH JURISDICTION

By the authority of the decision of the Supreme Court in the locus classicus Madukolu V Nkemdilim (1962) LPELR-24023(SC) 9-10, F-D, per Bairamian, JSC; (1962) 1 All NLR 587, 595, there are 3 conditions to be fulfilled for a Court to be vested with jurisdiction – “Put briefly, a Court is competent when: 1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court form exercising its jurisdiction; and 3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the effect is extrinsic to jurisdiction.” PER JUMMAI HANNATU SANKEY, J.C.A.

IMPORTANCE OF THE ISSUE OF JURISDICTION

The Supreme Court in the case of AG Lagos State V Dosunmu (1989) LPELR-3154(SC) 10, C-D, per Oputa, JSC, held – “Jurisdiction is a radical and crucial question of competence. Either the Court has jurisdiction to hear a case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well-conducted and brilliantly decided they might otherwise have been. The reason is that a defect in competence is not intrinsic to, but rather, it is extrinsic to the adjudication.” In the more recent decision of the Supreme Court of Agbule V Warri Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (Pt. 1350) 318, Rhodes-Vivour, JSC held – “Jurisdiction is a question of law. It is a threshold issue, very fundamental, the live wire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided would amount to a nullity. This is premised on the position of the law that a judgment given without jurisdiction creates no legal obligations. Such a judgment confers no right on any of the parties.” PER JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice Gombe State sitting in its appellate jurisdiction delivered in Appeal No. GM/14A/2015 on June 7, 2017, Coram: B.L. Iliya J., and P.I. Apollos, J.

The brief facts leading to the Appeal are that Piyo Sagalkat and Anita Arketo first approached the Upper Area Court in a representative capacity seeking an Order that the farmland in dispute, which was in the possession of Saleh Kum, the Defendant therein, be shared between the two clans of Sagalgat and Arketo. They claimed that the progenitors of the Plaintiffs, Sagalgat and Arteko, being brothers, had founded and cleared the land. That they however allowed the Defendant, the son of their brother, Kum, to cultivate the land. They contended that in several Court cases over the farmland, they mandated the Defendant to stand-in for and represent the families. They contend that the families even contributed money which they gave for that purpose. That subsequently however, the Defendant laid claim over the entire farmland.

The Defendant, on his part, denied the claim and instead claimed ownership over the farmland, contending that Sagalgat, Arteko and Kum were brothers. He also held forth the Judgments of various Area Courts and Upper Area Courts given in his favour, where he had litigated with other persons (not the Claimants) over the same farmland, as evidence of this.

In proof of their claim, both Plaintiffs testified and adduced further evidence through two (2) other witnesses; while the Defendant testified in his defence and adduced evidence through two other witnesses. He also tendered five exhibits, Exhibits 1A, 2, 3, 4 and 5, being Records of proceedings, through various Court Registrars. The trial Court also visited and inspected the land. The 2nd Plaintiff, Anita Arketo, died during the course of the proceedings before the trial Court and was not substituted.

At the close of trial, judgment was entered in favour of the Respondent on July 2, 2013. The trial Upper Area Court agreed with the Defendant that the land belonged to him having litigated over the land in a personal capacity with other persons and been awarded the land, as disclosed in the Record of proceedings placed in

evidence. For ease of reference, the trial Upper Area Court held as follows (at page 235 of the Record of Appeal):
“Now, having listened to the evidence from the plaintiff and defendant and their witnesses, we went to the land in dispute together with (illegible) plus the records of proceedings tendered as exhibits. And [in] our findings we are satisfied that this farm belongs to Sale. He has been [in] series of litigation and it is not inherited clan’s farm as claimed [by] plaintiffs. And there was nowhere that Sale ever said he was representing his clan in this issue of farm land as they were claiming contributing in their clan and was given to Sale to fight for their right. And in investigation, we did not find a single person that established the (illegible) Sale was representing their clan in this farm land matter.
Based on the foregoing, we have dismissed the plaintiffs claim we confirm that this farm belongs to Sale Kum. We rely on [the] evidence of the witnesses as well as the copies of records of proceedings which he tendered before this Court.”

Dissatisfied with this decision, the surviving Plaintiff, Piyo Sagalkat,

filed an Appeal to the High Court of Justice Gombe State (hereinafter referred to as the lower Court). Again, while the Appeal was pending, the sole Appellant therein (1st Plaintiff before the trial Court) died and was substituted with Japhet Sagalgat Yabraks. In addition, the Respondent therein, Saleh Kum (Defendant before the trial Court) died and was substituted by his son, Yabraks Saleh Isah. After the Appeal was heard, the lower Court reversed the Judgment of the trial Upper Area Court and entered Judgment in favour of the Respondent allowing the Appeal. It issued an Order that the farmland in dispute be shared between the parties.

Now aggrieved, the Respondent before the lower Court, filed an Appeal to this Court on August 30, 2017, leave of Court to appeal having been sought and obtained on June 23, 2017. He complained on six grounds and urged the Court to allow the Appeal, set aside the decision of the lower Court and affirm the decision of the trial Court delivered on July 2, 2013.

While the Appeal was yet pending before this Court, the Appellant died. Therefore, with the leave of Court sought and obtained on March 14, 2019, he was

substituted by his brother, Yabracks Saleh Akarat, the present Appellant.

At the hearing of the Appeal on March 1, 2021, learned Counsel for the Appellant, M.A. Galaya, Esq., adopted the submissions in the Appellant’s Brief of argument filed on 23-09-20 and settled by him, in urging the Court to allow the Appeal, set aside the decision of the lower Court and affirm the decision of the trial Court.

On his part, Emmanuel Nwaekwe Esq., learned Counsel for the Respondent, adopted the arguments contained in the Respondent’s Brief of argument filed on 10-11-20, also settled by him, in urging the Court to dismiss the Appeal and uphold the decision of the lower Court.

In his Brief of argument, the Appellant formulated three issues for determination from his six grounds of appeal as follows:
1. “Whether the High Court of Justice Gombe State sitting on appeal over the decision of the trial Upper Area Court, Kaltungo was not in error when it set aside the decision of the trial Court, notwithstanding the uncontroverted facts and exhibits placed before the Court which ought to have warranted it upheld the decision of the trial Court. (Grounds 1, 4 and 6)

Whether the Gombe State High Court of Justice sitting on appeal against the decision of Upper Area Court, Kaltungo was right when it held that the Appeal is competent notwithstanding the Record of proceedings transmitted before it was incomplete. (Ground 2)
3. Whether or not the lower Court was right when it ignored the sound Judgment of the trial Court and declared that the disputed land was a family land and therefore should be shared between the parties. (Grounds 3 and 4).”

The Respondent in his Brief of argument distilled the following two issues for determination:
A. “Whether the High Court of Justice Gombe State sitting on appeal over the decision of the trial Upper Area Court, Kaltungo was not in error when it set aside the decision of the trial Court, notwithstanding the uncontroverted facts and exhibits placed before the Court which ought to have warranted it to upheld (sic) the decision of the trial Court. (Grounds 1, 3, 4, 5 and 6)
B. Whether the Gombe State High Court of Justice sitting on appeal against the decision of the Upper Area Court, Kaltungo was right when it held that the

Appeal is competent notwithstanding the record of proceedings transmitted before it was incomplete. (Ground2)”

Having examined the issues for determination vis-a-vis the Grounds of appeal, it is evident that issues 1 and 2 framed by the Appellant and the two issues crafted by the Respondent are almost identical. Issue 3 by the Appellant can be subsumed under issue 1. The Appeal shall therefore be determined on the following two issues:
1) Whether the High Court of Justice Gombe State sitting in its appellate jurisdiction was in error when it set aside the decision of the trial Upper Area Court, Kaltungo.
2) Whether the High Court of Justice, Gombe State was right when it held that the Appeal before it from the Upper Area Court, Kaltungo was competent, notwithstanding the fact that the Record of proceedings of the said trial Court transmitted to it, was incomplete.

Since issue two raises an issue touching on the competence of the Appeal before the lower Court and thus the jurisdiction of the lower Court to have heard and determined same, it will be addressed first.
Issue two – Whether the High Court of Justice, Gombe State was

right when it held that the Appeal before it from the Upper Area Court, Kaltungo was competent, notwithstanding the fact that the Record of proceedings of the said trial Court transmitted to it, was incomplete.

Learned Counsel for the Appellant states that Registrars of various trial Courts tendered Records of proceedings of those Courts wherein the subject matter was the farmland in dispute and the Appellant was a party before those Courts. They were duly admitted in evidence as Exhibits 1A, 2, 3, 4, and 5. The trial Court in turn relied on these exhibits to find that the suit filed by the Respondent therein against the Appellant constitutes an abuse of Court process. Based on this, the trial Court dismissed the claim and awarded title to the Appellant/Defendant.

At the lower Court, the Appellant raised an issue of jurisdiction when he challenged the competence of the Appeal before the lower Court for the failure to transmit the six Exhibits tendered at the trial Court to the lower Court. The lower Court however dismissed this objection raised to its jurisdiction to determine the Appeal. Counsel therefore submits that the lower Court was an

error when it held that the Appeal was competent, despite the incomplete Record of proceedings of the trial Court.

Counsel submits that an appellate Court is devoid of the jurisdictional competence to determine an appeal based on an incomplete record of appeal. He argues that such a Court will be devoid of competence to make pronouncements affecting the rights of the parties before it without the aid of all the materials used by them at the lower Court, thereby defeating the ends of justice. See Nwana V FCDA (2007) 11 NWLR (Pt. 1044) 59, 84, D-F; Wassah V Kara (2014) LPELR SC./308/2001; FBN Plc V May Medical Clinics (2001) Vol. 86 LRCN 1080. Thus, Counsel submits that the Appeal at the lower Court was grossly defective and incompetent, and so the lower Court was robbed of jurisdiction to entertain and determine it. See Okochi V Animkwoi (2003) 18 NWLR (Pt. 851) 1, per Tobi, JSC; Nwana V FCDA (2007) Vol. 147 LRCN 1015, 1032; Muazu V Mainstreet Bank (Unreported) Appeal No. CA/J/38/2006 delivered on May 27, 2015. Counsel urged the Court to resolve this issue in favour of the Appellant.

In response, learned Counsel for the Respondent submits that at page 287

of the Record, the lower Court evaluated the evidence led before the trial Court and arrived at a well-considered Judgment. He contends that from the Respondent’s evidence, it is not clear who cleared the land, that is, between Arketo and Lamido, or Kum and Arketo; as well as the evidence of how the land devolved on the Appellant. He contends that this Court cannot therefore rely on the evidence adduced by the Appellant to decide on these issues. Thus, Counsel urged the Court to resolve this issue in favour of the Respondent; dismiss the Appeal and affirm the Judgment of the lower Court.

RESOLUTION OF ISSUE TWO:
It is rather evident that the Respondent in his response to the submissions of the Appellant on this issue made no attempt to respond to the substance of the issue, instead, he ignored the issue of jurisdiction raised and dwelt only on the lower Court’s findings of facts in respect of the proof of ownership of title vide the evidence adduced.

The issue canvassed by the Appellant under this issue is that the failure to transmit the exhibits tendered at the trial Upper Area Court to the lower Court for the hearing of the

Appeal rendered the Appeal incompetent. He contends that this is more so that the said exhibits were Records of proceedings of various other Courts, and they were relied upon by the lower Court in giving its decision. It is based on this that the Appellant proposed the following issue for determination by the lower Court:
“Whether the appeal is competent in view of certain exhibits which were not transmitted to this Court to warrant it assume jurisdiction.”

Unfortunately, in giving its decision, the learned Judges of the lower Court misconstrued the purport of the issue presented to them for determination. They read it to mean that the Appellant was contesting the Record of proceedings of the lower and therefore held that in so doing, he had not come before the Court properly. Hear the lower Court on this (at page 273 of the Record of Appeal):
“We have carefully considered the submission of Counsel to the respondent on this issue. In a nutshell the respondent is questioning the correctness of the record.”

Thus, commencing from a false premise, the lower Court was bound to come to a wrong determination and a wrong

conclusion, as it did in its subsequent findings at page 274 of the Record as follows:
“A party who the correctness of the record not formally attack the record with due notice of such complained given to the opposing party and any affidavit challenging the correctness of the record must be served on the trial Judge and or registrar of the Court who would then if he denies to contest the affidavit swear to and file a counter affidavit… See Hon. Emibra Agbeotu V Mr. Tamarate Brisibe (2005) 10 NWLR (Pt. 932) P.1 at 35; Abatan V Awudu (2004) 17 NWLR (Pt. 902 P. 43.
The respondent failed to take the steps above and are accordingly foreclose from raising their voice against the authenticity of the record of proceeding before this Court.
It is therefore our view that the record of proceedings before this Court are accurate unless shown by affidavit to be otherwise. This the (sic) issue on jurisdictions resolved in favour of the appellant against the respondent.”

This finding would have been well and good if the Appellant, by the issue raised, was actually contesting the correctness of the Record of proceedings placed before the

lower Court. However, he was not. With due respect to the learned Judges of the lower Court, they totally missed the point. What the Appellant had contended was that, the Record of Appeal before the lower Court was incomplete, the Exhibits tendered before the trial Court having not been transmitted along with the Record of proceedings of the trial Court to the lower Court for its appellate review.

Now, the lower Court having failed to properly determine that issue, the same issue has been placed before this Court, of course phrased a little differently. The issue now is: Was the Appeal before the lower Court competent, and was the lower Court vested with jurisdiction to entertain it, the exhibits tendered before the trial Court having not been transmitted along with the Record of proceedings to the lower Court

scrutinized and assessed for the just determination of the case. See Olaiya V Lawal (2019) LPELR-48205(CA) 21-22; E-A; Bida V Abubakar (2011) 5 NWLR (Pt. 1239) 130; Lamidi V State (2016) LPELR-41320(CA) 47-48, E-B; Buba V State (1992) 1 NWLR (Pt. 215) 1, 17, per Mukhtar, JCA (as he then was); Ayinde V Salawu (1989) 3 NWLR (Pt. 109) 297, 314-315.
The importance of an exhibit tendered in evidence in Court cannot be over-emphasized in adjudication. An exhibit denotes a document, record, or other tangible objects formally introduced as evidence in Court. See University of Calabar V Effiong (2019) LPELR-47976(CA) 33-34, C-E, per Ogbuinya, JCA; Lucky V State (2016) 13 NWLR (Pt. 1528) 128.

The defence of the Appellant against the claim for title to land at the trial Court was undoubtedly anchored on those exhibits. The exhibits were however not transmitted to the lower Court hearing the Appeal arising from the trial Court’s decision. The trial Court had based its decision on its acceptance of those exhibits as proof that the Appellant was the owner of the farmland in dispute. Therefore, the said exhibits, which were not placed before the lower Court and

which the lower Court failed to consider in arriving at its decision, was the crux of the Appellant’s case at the lower Court and his response to the Appeal of the Respondent to the lower Court.

Depending on the provision of the Rules of Court governing the procedure of the lower Court, this issue having been raised, it was incumbent on the Court to have made an allowance for the exhibits to be transmitted to the Court before a proper determination of the Appeal. This is more so that from the Record of proceedings of the trial Upper Area Court, it was evident and in prominence that the Record of proceedings were indeed tendered and admitted in evidence, and that they played a major role in the decision of the trial Court.

Contrary to the erroneous finding of the trial Court, this was certainly not an instance where the Record of proceedings was being challenged, where the presumption of law in Section 147 of the Evidence Act, 2011, could have been rightly activated and it would have been mandatory for the challenger seeking to challenge the correctness of the record to take the following steps:
a) Swear to an affidavit challenging the

record which must be filed setting out the facts or parts of the proceedings wrongly stated in the record;
b) Serve the affidavit on the trial Judge and/or the Registrar of the Court for his reaction; the Judge should then, if he desires to contest the affidavit, swear to and file a counter-affidavit;
c) File a formal application, a motion on notice supported by an affidavit seeking to amend the record. This latter affidavit in support of the motion, should disclose the following particulars:
a. That the affidavit challenging the record was duly filed;
b. That the affidavit was duly served on the affected parties with the particulars of service disclosed;
c. That the affected parties either:
i. Filed an affidavit in response to the affidavit challenging the record; or
ii. Failed to file such an affidavit.
It is after such steps have been duly taken that the Court to which the application was made, can exercise its discretion one way or another.
See Paul V COP (2021) LPELR-52489(CA) 96-100, D-F, per Dongban-Mensem, JCA; Ayinla V Kannike (2019) LPELR-47721(CA) 45; Andrew V INEC (2017) LPELR-48518(SC) 90-92, B-C, per

Aka’ahs, JSC; Agwarangbo V Nakande (2000) 9 NWLR (Pt. 672) 341, 360; Ehikioya V COP (1992) 4 NWLR (Pt. 233) 57, 70.

In the instant case, the exhibits tendered at the trial Court were not transmitted to the appellate Court by the Registrar of the trial Court to assist the appellate Court in its review of the decision appealed against. Indeed, there is no way the lower Court could have granted the parties, in particular the Appellant who rightly raised it, a fair hearing in the absence of those exhibits which should have formed the fulcrum of its decision in reviewing the decision of the trial Court, given the trial Court’s absolute reliance on them.
This explains why the Supreme Court and this Court have consistently held that a trial or appellate Court must see the Exhibits tendered before the trial Court before taking any decision on them – Philip V Nigerian Army (2016) LPELR-40255(CA) 14, C-A, per Abba-Aji, JCA (as she then was); Yinusa V State (2016) LPELR-41384(CA) 28, A-C, per Daniel-Kalio, JCA; Haruna V AG Federation (2012) LPELR-7821(SC); Ekpemupolo V Edremoda (2009) 3 MJSC 87, A-B.
Directly on this point is the case of

Olorunyolemi V Akhagbe (2010) 18 NWLR (Pt. 1195) 48, 51 where it was held –
“…The exhibits in particular were yet to be transmitted from the High Court to the Court of Appeal and that made whatever Records of Appeal that was compiled grossly inadequate or incomplete for hearing at the Court of Appeal.”
Again, in Buhari V Obasanjo (2003) LPELR-813(SC) 12-13, per Belgore, JSC where it was held as follows:
“It is always of paramount importance to have all the records in an appeal before the appellate Court. The proceedings including the exhibits and judgment are the materials necessary for the appellate Court to decide whether the trial Court’s Judgment was right or wrong. No Court can do justice in any case when all the relevant facts available are not placed before it.” It is therefore sound law that an appellate Court may not hear an appeal without the transmission of exhibits tendered in evidence during the trial. While exhibits are not part of the Record of proceedings, they are undoubtedly part of the Record of Appeal to be transmitted to an appellate Court. By proceeding to determine the Appeal in the

absence of the exhibits, the lower Court acted in error.

The Appellant has now transmitted copies of the said exhibits in an Additional Record of Appeal to this Court. This is no doubt to confirm to this Court the veracity of his submissions before the lower Court that indeed, exhibits were tendered at the trial Court which were not transmitted to the lower Court. Can this Court now proceed to use the exhibits presented in an Additional Record to determine the Appeal? By the authority of Section 15 of the Court of Appeal Act, 2004, this Court is enjoined to enter the Judgment which the trial Court ought to have entered in the circumstance of the case. The question is: is this an appropriate case in which the Court can assume the plenitude of its power so provided to do that which the trial Court ought to have done, but failed to do?
The complaint of the Appellant is that the Appeal before the lower Court was incompetent on the ground that the Record of Appeal was incomplete, the exhibits tendered at the trial Court having not been transmitted to the appellate Court for consideration in the Appeal; therefore, the Appeal being incompetent, the lower

Court lacked jurisdiction to have heard and determined it. By the authority of the decision of the Supreme Court in the locus classicus Madukolu V Nkemdilim (1962) LPELR-24023(SC) 9-10, F-D, per Bairamian, JSC; (1962) 1 All NLR 587, 595, there are 3 conditions to be fulfilled for a Court to be vested with jurisdiction –
“Put briefly, a Court is competent when:
1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court form exercising its jurisdiction; and
3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the effect is extrinsic to jurisdiction.”
In the instant case, the defect in the competence of the lower Court to entertain the Appeal in the absence of the transmission of all the exhibits tendered

at the lower Court, is fatal and it renders the proceedings arising there from a nullity, no matter how well conducted and decided. In the circumstance, it becomes academic to attempt any discourse on whether the lower Court correctly decided the Appeal when it entered Judgment in favour of the Respondent herein, based on the evidence presented by him as proof of his title by traditional evidence.
The Supreme Court in the case of AG Lagos State V Dosunmu (1989) LPELR-3154(SC) 10, C-D, per Oputa, JSC, held –
“Jurisdiction is a radical and crucial question of competence. Either the Court has jurisdiction to hear a case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well-conducted and brilliantly decided they might otherwise have been. The reason is that a defect in competence is not intrinsic to, but rather, it is extrinsic to the adjudication.”
In the more recent decision of the Supreme Court of Agbule V Warri Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (Pt. 1350) 318, Rhodes-Vivour, JSC held –
“Jurisdiction is a question of law. It is a threshold issue, very fundamental,

the live wire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided would amount to a nullity. This is premised on the position of the law that a judgment given without jurisdiction creates no legal obligations. Such a judgment confers no right on any of the parties.”
Based on the position of the law articulated and reiterated in these decisions, where a Court acts without jurisdiction, no amount of liberality can validate its actions.
Thus, the lower Court having had no jurisdiction to hear and determine the Appeal based on an incomplete Record of Appeal, it will be an exercise in futility for this Court to purport to step into its shoes to do that which it could not do. As was held in Mcfoy V UAC (1962) AC 152, you cannot put something on nothing and expect it to stand. It will collapse like a pack of cards. See also Mela V Ashaka Cement Plc (2020) LPELR-51396(CA) 17, A-C. I am therefore of the considered view that this is not a proper case for the Court to exercise its power under Section 15 of the Court of Appeal Act,

(supra). It is for these reasons that I resolve issue two in favour of the Appellant.

The resolution of issue two has dispensed with the need to consider issue one for determination which questions, “Whether the High Court of Justice Gombe State sitting in its appellate jurisdiction was in error when it set aside the decision of the trial Upper Area Court, Kaltungo”, since the entire proceedings of the lower Court are a nullity.

I therefore hold that the lower Court was without jurisdiction to hear and determine the Appeal without the benefit of having the entire evidence presented at the trial Court, inclusive of the exhibits, brought before it. Having therefore acted without jurisdiction, the proceedings of the lower Court, as well as the Order made therein, are hereby declared a nullity.
The only option open to the Court in the circumstance is to make an Order for the Appeal to be heard de-novo by the lower Court.
In consequence, I hereby remit the Appeal to the Hon. Chief Judge of the High Court of Justice, Gombe State, for trial de-novo before a different Panel of the High Court.
It is further Ordered that the

Registrar of the Upper Area Court, Kaltungo should forthwith transmit all the Exhibits in Suit No. KUAC/KT/WF1/81/2009, Judgment delivered on June 4, 2013, to the High Court of Justice, Gombe State, for the purpose of the hearing de-novo of Appeal No. GM/14A/2015.
Parties are Ordered to bear their costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother JUMMAI HANNATU SANKEY JCA. I am in full agreement with the reasoning and conclusion therein. I have nothing more useful to add. I firmly hold that the lower Court lacked jurisdiction to hear the appeal without having access to the full record. Real Justice cannot be done without the full facts being known and they cannot be known when the whole exhibits are not presented before the Court.
I agree the proceedings of the lower Court and the order made are a nullity in the circumstances.
I abide by the consequential orders made in the leading judgment.

EBIOWEI TOBI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, J. H.

Sankey, JCA which I agree with in its entirety. My Lord, has identified the real issue for determination and has adequately addressed same. The real issue which was misconceived by the lower Court and the Respondent is; whether there was incomplete record before the Court and the effect of an incomplete record of appeal.

In the record in the lower Court, the Exhibits were not transmitted along with the record. The record of appeal is to include all the documents and the proceedings of the Court where the appeal emanate from. Where the document tendered in such a Court was not transmitted, the record will be incomplete. This Court in Koffi Foubiri & Anor vs Milton Erizia & Ors (2018) LPELR-49132 (CA) held: “It is trite that no appeal can be determined effectively and effectually in the face of incomplete record. Without the exhibits tendered and relied upon by the lower Court in reaching the judgment appealed against, this Court as an appellate Court will not be seised of the relevant materials with which to determine the appeal. The apex Court in the case of Okochi vs. Animkwoi (2003) 18 NWLR (Pt. 858) 1, per Tobi JSC., made it as clear

as crystal that:
“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”
Since this appeal was heard without the material exhibits relied upon by the lower Court, it follows that a necessary feature upon which to activate the jurisdiction of this Court is lacking and no Court is expected to act without the requisite jurisdiction.”
From the record in the lower Court, it is clear that the record transmitted to that Court did not include the exhibits in the upper area Court. The question is what is the implication of that? The implication is that, the Court is robbed of jurisdiction to entertain the appeal on the premise of incomplete record. See Access Bank Plc vs Mr. ANC Onwuliri (2021) LPELR-53078 (SC).
Once a Court is deprive of jurisdiction, everything done by the Court including the proceedings and the judgment reached therein will be a nullify no matter how

brilliant such a judgment could be. See Josiah Cornelius Limited & Ors vs Chief Cornelius Okeke Ezenwa (1996) 4 NWLR (pt 443) 391.

This is my little contribution to the lead judgment delivered by my learned brother, J. H. Sankey, JCA. For the fuller reasons stated in the lead judgment, I also allow the appeal. I abide by the consequential order made therein.

Appearances:

A. Galaya,Esq. For Appellant(s)

Emmanuel Nwaekwe,Esq. For Respondent(s)