BARR. BELLO BAKARI v. HON. ATTORNEY GENERAL OF ADAMAWA STATE
(2019)LCN/12615(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/YL/213/2017
RATIO
APPEAL: PARTIES ARE BOUND BY THE RECORD OF APPEAL
“…Like in pleadings, parties are bound by the record of appeal and are not at liberty to argue grounds, which are not related to the judgment appealed against. See Saraki v. Kotoye (1992)9 NWLR (Pt.264) 156 SC; Bhojsons Plc. v. Daniel-Kalio (2006)5 NWLR (Pt.973) 330 SC. The only judgment spotted in the record the decision of the High Court of Adamawa State delivered on the 19th September, 2016. See pages 89 to 94 of the printed record: That to me is not and could not be the judgment appealed against in light of the Notice of Appeal before us. The law is that, an appellant has a duty to ensure the accuracy of the record of appeal forwarded to the appellate Court. See Ajayi v. Omorogbe (1993)6 NWLR (Pt.301) 512 SC. Incompleteness of record of appeal deprives an appellate Court of its means to effectively hear and determine an appeal before it thereby robbing the Court of jurisdiction to determine the case. See Ukiri v. U.B.A. Plc. (2016)3 NWLR (Pt.1500) p.440.” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
BARR. BELLO BAKARI Appellant(s)
AND
HON. ATTORNEY GENERAL OF ADAMAWA STATE Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The High Court of Adamawa State sitting in Yola Coram: Nathan Musa, J on the 19th September, 2016 delivered Judgment in Suit No. ADSY/35/2015 and dismissed the entire claim brought before it. The appellant was plaintiff before the Court while the respondent was the defendant.
The appellant by an Originating Summons dated 20th September, 2015 and filed 22nd September, 2015 commenced proceedings against the respondent in respect of the composition of Adamawa State Rent Tribunal, and sought for the determination of the following questions namely: –
1. Whether having regards to the provision of Section 5 (1) & (2) of the Adamawa State Rent Control Law Cap 122 of 1988, the Defendant can validly and lawfully nominate its staff to head the Adamawa State Rent Tribunal.
2. Whether having regard to the provisions of Section 5 (1) & (2) of the Adamawa State Rent Control Law Cap 122 of 1988, staff from the office of the Defendant who are persons employed in the service of the state cannot man or run the affairs of the Adamawa State Rent Tribunals.
3. Whether having regard to the provisions of Section 6 (2), (5) & (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 11 (a) & (b) of the Adamawa State Rent Control Law Cap 122 of 1988, staff from the defendant?s office can lawfully and validly preside over, adjudicate and determine disputes brought before the Adamawa State Rent Tribunals?.
The appellant therefore, claimed principal and consequential reliefs on the following terms:
a. A DECLARATION that by virtue of the provision of Section 6 (2) & (6) (b) of the 1999 Constitution (as amended) and Section 11 (a) & (b) of the Adamawa State Rent Control Law Cap 122 of 1988, the Executive Arm of the State (Defendant’s office inclusive) cannot lawfully and validly adjudicate and determine the civil right or rights of individuals.
b. A DECLARATION that by virtue of the provision of Section 6 (2) & (6) (b) of the 1999 Constitution (as amended) and Section 11 (a) & (b) of the Adamawa State Rent Control Law Cap 122 of 1988, the functions of the Rent Tribunals be carried out by the judicial staff under the watch of the Hon. Chief Judge of Adamawa State.
c. A DECLARATION that by virtue of the provision of Section 6(2) & (6) (b) of the 1999 Constitution (as amended) and Section 11 (a) & (b) of the Adamawa State Rent Control Law Cap 122 of 1988, the Executive Arm of the State (Defendant’s office inclusive) cannot lawfully and validly adjudicate and determine the civil right or rights of individuals.
d. A DECLARATION that by virtue of the provision of Section 6 (2) & (6) (b) of the 1999 Constitution (as amended) and Section 11 (a) & (b) of the Adamawa State Rent Control Law Cap 122 of 1988, the functions of the Rent Tribunals be carried out by the judicial staff under the watch of the Hon. Chief Judge of Adamawa State.
In support of the Originating Summons, are 11 paragraphed affidavit filed by the appellant. The respondent filed a counter – affidavit of 5 paragraphs. The appellant filed a further and better affidavit of 11 paragraphs. Likewise, the respondent filed a further and better counter- affidavit of 5 paragraphs.
At the trial, the respondent raised a preliminary objection challenging the locus standi of the appellant to file the suit. The action was heard on the affidavit evidence and written addresses. In a considered judgment delivered on 19th September, 2016, the trial High Court dismissed the case.
The Appellant on the 4th December, 2016, dissatisfied, filed A Notice of Appeal but against the Judgment delivered on the 17th September, 2016. Thereafter he caused the record of Appeal to be compiled and transmitted to this Court. Counsel, respectively filed and exchanged their briefs of argument.
On the nature of the Record of Appeal transmissible, the Rules of this court under Order 8 Rule 7 provides thus: –
7. Every Record of Appeal shall contain the following documents in the order set out: –
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;
d. A Copy of the notice of appeal and other relevant documents filed in connection with the appeal.?
The apex Court, speaking on the nature of record of appeal in the case of Adesina v. Adeniran (2002) 6 NWLR (Pt.762) 84 SC held thus:-
The record of appeal is made up of the originating processes, proceedings and relevant documents tendered during the proceedings in the particular case, and the notice of appeal.
The Record of Appeal before the Court is comprised of the following documents:
1. The Originating Processes which in this case, consist mostly the Originating Summons, Affidavit of the party on the other side together with the written addresses attached thereto. These can be located at pages 3 to 30 of the record;
2.Other relevant documents tendered and attached to the interlocutory applications and the reply in respect thereof. See pages 31-84 of the record;
3.The proceedings of the Court as can be found at pages 85 to 88 of the printed record;
4. A judgment signed and delivered on the 19th September, 2016, is located at pages 89 to 94 of the printed record; and finally.
5. The notice of appeal against the decision of the High Court of Adamawa State delivered on 17th September, 2016 is at pages 95-97 of the record.
This Court has the power to look at everything contained in the record of appeal before it. See Chevron (Nig.) Ltd. v. Onwugbolu (1996)3 NWLR (Pt.437) 404 CA.
The originating appeal process before the Court, that is, the Notice of Appeal read thus: –
IN THE COURT OF APPEAL
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
APPEAL NO?.
BETWEEN
BARR. BELLO BAKARI… APPELLANT
AND
ATTORNEY GENERAL OF ADAMAWA STARESPONDENT
TAKE NOTICE that the appellant being dissatisfied with the JUDGMENT stated in paragraph 2 a decision of the High Court of Justice, Yola delivered by Hon. Justice Nathan Musa on the 17th day of September, 2016, in a suit between BARR. BELLO BAKARI and HON. ATTORNEY GENERAL OF ADAMAWA STATE do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4 and the persons affected by the appeal are as set out in paragraph.
It is crystal clear from the above extract that the appellant’s notice of appeal was filed against the judgment of the High Court of Adamawa State delivered on the 17th September, 2016. I am unable to locate where this judgment of the Court below is included in the record. Like in pleadings, parties are bound by the record of appeal and are not at liberty to argue grounds, which are not related to the judgment appealed against. See Saraki v. Kotoye (1992)9 NWLR (Pt.264) 156 SC; Bhojsons Plc. v. Daniel-Kalio (2006)5 NWLR (Pt.973) 330 SC. The only judgment spotted in the record the decision of the High Court of Adamawa State delivered on the 19th September, 2016. See pages 89 to 94 of the printed record: That to me is not and could not be the judgment appealed against in light of the Notice of Appeal before us.
The law is that, an appellant has a duty to ensure the accuracy of the record of appeal forwarded to the appellate Court. See Ajayi v. Omorogbe (1993)6 NWLR (Pt.301) 512 SC. Incompleteness of record of appeal deprives an appellate Court of its means to effectively hear and determine an appeal before it thereby robbing the Court of jurisdiction to determine the case. See Ukiri v. U.B.A. Plc. (2016)3 NWLR (Pt.1500) p.440.
At the reconvened sitting of this Court held on 16th January, 2019, the Court invited the attention of parties to this anomaly.
Without the Judgment appealed against being placed before it, the appellate Court cannot properly adjudicate and determine the appeal brought to it.
This Court in the case of PASTOR JOSEPH B. OKWARA V. MRS. CORDELIA OKWARA (Unreported; Appeal No. CA/J/201/2016) delivered on 12th February, 2018 held that:
‘It is without equivocation that I reiterate again sequel to my above elucidation that, it is a legal sacrilege for an appellate Court to adjudicate upon an appeal in the face of an incomplete record of appeal for such an appeal in that situation can best be described as inchoate Per O. F. Omoleye, PJCA.
Also, in the case of Okochi v. Animkwoi (2003)18 NWLR (Pt.851) p.1 the apex Court, per Tobi, JSC made similar observation where the Court held:
‘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’
Consequent upon the findings above, the Judgment appealed against, not having been placed before us, this appeal is incompetent, and same liable to be struck out. I accordingly make that order striking out the Notice of Appeal in Appeal case No. CA/YL/213/2017.
That is the order and Judgment of Court.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal, just delivered by my learned Brother, Saidu Tanko Husaini, JCA.
For the reasons stated in the said leading judgment, I agree that this appeal is incompetent and also strike it out accordingly.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned Brother, Saidu Tanko Husaini JCA and I agree entirely with my learned brother that this appeal should for the reason contained in the lead judgment be struck out. I too strike out Notice of Appeal No. CA/YL/213/2017. I abide by the order as to costs.
Appearances:
Bello Bakari, Esq. For Appellant(s)
Samuel Yaumande, Esq., DCL. For Respondent(s)
