BRIGGS v. COP (2020)

BRIGGS v. COP

(2020)LCN/14218(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/PH/52CR/2018

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Between

YITONIERANI BRIGGS APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

WHEN WOULD AN APPEAL BE SAID TO HAVE BEEN ENTERED IN APPELLATE COURT

I think that it is important to pause here and say that the law is settled that an appeal is said to have been entered in an appellate Court when the record of appeal is transmitted from the lower Court to the appellate court. See Ogwuche V. Mba (1994) 4 NWLR (Pt. 336) 25 and Adedeji V. Military Administrator, Ekiti State (2008) All FWLR (Pt. 401) 869.
In legal parlance, record of appeal consists of the proceedings of the Court, including oral evidence and documents or exhibits tendered during the proceedings. See Adesina V. Adeniran (2006) 18 NWLR (Pt. 1011) 359.
The law seems to be that unless and until the record of appeal is completely compiled and transmitted from a lower Court to an appellate Court, the appellate Court would not be properly seised of the matter as to competently exercise jurisdiction thereon. See Western Steel Works Limited & Anor V. Iron & Steel Workers Union & Anor (1986) 3 NWLR (Pt. 30) 617.
Put pointedly, it is wrong for an appellate Court to act and base its decision on an incomplete record of appeal. Where, therefore, an appellate Court makes pronouncements without the assistance, availability or presence of material or relevant documentary evidence or exhibits, its decision is liable to be set aside. See Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290 and Nwana V. FCDA (2007) 11 NWLR (Pt. 1044) 59. PER ADUMEIN, J.C.A.

IMPORTANCE OF JURISDICTION OF THE COURT TO ADJUDICATE ON A MATTER BEFORE IT

The law, as repeatedly stated in a litany of decisions of this Court and the Supreme Court, is that where a court undertakes to exercise jurisdiction which it does not possess, its decision amounts to nothing than a nullity. See Attorney General For Trinidad & Tobago V. Erichie (1893) A. C. 518; Timitimi V. Amabebe (1953) 4 WACA 374; Ekulo Farms Ltd. & Anor. V. Union Bank of Nigeria Plc (2006) 6 SCM 78; Okolo V. UBN (2004) 3 NWLR (Pt. 859) 87 and Prince Yahaya Oyidi Audu V. All Progressives Congress (2019) 17 NWLR (Pt. 1702) 379.
Jurisdiction of any Court to adjudicate on or entertain any matter before it is a fundamental or threshold issue which can be raised at any time during a Court’s proceedings. It can be raised, even for the first, in an intermediate or final appellate Court by the parties or by the Court sou motu. See Bronik Motors V. Wema Bank (1983) 1 SCNLR 296, Eze V. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506; Chief Ujite Ngere V. Chief Job William Okuruket (2014) 14 NWLR (Pt. 1417) 147; Frank Amah V. Federal Republic of Nigeria (2019) 6 NWLR (Pt. 1667) 160; Okwara Agwu V. Julius Berger Nigeria Plc (2019) 11. NWLR (Pt. 1682) 165 and Chief Albert Alikor V. Rev. Chief M. W. Ogwo (2019) 15 NWLR (Pt. 1695) 331. PER ADUMEIN, J.C.A.

WHETHER OR NOT THE COURT CAN SUO MOTU RAISE THE ISSUE OF JURSDICTION

I am aware that where the Court raises an issue suo motu, as in this case, it may be wrong to proceed to determine it without drawing the attention of the parties to such issue and giving them an opportunity to address the Court on it. See Osagie V. Adonri (1994) 6 NWLR (Pt. 349) 131, Okonji V. Njokanma (1999) 14 NWLR (Pt. 638) 250 and Abbas V. Solomon (2001) 15 NWLR (Pt. 735).
However, under some special circumstances, the Court can suo motu raise an issue of law or jurisdiction and decide upon it without hearing the parties to the appeal. See Olubode V. Salami (1985) 2 NWLR (Pt. 7) 282; Imah V. Okogbe (1993) 9 NWLR (Pt. 316) 159 and Hon. Polycarp Effiom V. Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106.
Before concluding this judgment, the law is trite, as settled by the Supreme Court, that: “Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its incompetence and decline to exercise jurisdiction, even if the question of its incompetence has not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.”
Per Ayoola, JSC in Mobil Oil Producing (Nig) Unlimited V. LASEPA (2002) 18 NWLR (Pt. 798) 1 at 31. See also Chief Orlando Olaiya Ojo V. National Pension Commission (2019) 14 NWLR (Pt. 1693) 547 at 565 -566. PER ADUMEIN, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN ENTERTAIN AN APPEAL FROM THE DECISION OF A LOWER COURT, WHERE THE LOWER COURT HAD NO JURISDICTION IN THE FIRST PLACE

The law is that an appellate Court would have no jurisdiction to entertain an appeal arising from a decision of a lower Court where that lower Court had no jurisdiction, in the first place, to entertain the matter before it. See SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (Pt. 1252) 317 and All Progressives Grand Alliance V. Senator Christiana N. D. Anyanwu (2014) 7 NWLR (Pt. 1407) 541.
For all the reasons given above, this appeal is liable to be struck out for want of jurisdiction. This appeal is hereby, accordingly struck out. PER ADUMEIN, J.C.A.

DUTY OF COURT TO TAKE JUDICIAL NOTICE OF ALL RELEVANT INFORMATION

The law is that an appellate Court is permitted to take judicial notice of all relevant information contained in the record of appeal, which will assist it in doing substantial justice, in the determination of the appeal before it. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144; Dingyadi V. INEC (2011) 10 NWLR (Pt. 1255) 347 and Mil. Gov. of Lagos State & Ors V. Adebayo Adeyiga & Ors (2012) 5 NWLR (Pt. 1293) 291.
In the interest of doing substantial justice in the determination of this appeal, I have decided to take judicial notice of all the relevant information in the record of appeal, which was compiled and transmitted to this Court on 24/10/2018. PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned before the Magistrate’s Court of Rivers State, holden at Port Harcourt and charged with the following offence: –
“That you, YITONIERANI BRIGGS (f) sometime in the year 2014 and 2015, at the Diobu Micro Finance Bank Mile 3 Diobu Port Harcourt in the Port Harcourt Magisterial District did with intent to steal, fraudulently approve vouchers to the sum of One Million Seven Hundred Thousand Naira (N1,700,000.00k) only, property of the Diobu Micro Finance Bank, Mile 3 Diobu Port Harcourt and converted the sum to your own use and thereby committed an offence punishable under Section 390 (7) and (9) of the Criminal Code Cap 37 Vol. 2 Laws of Rives State 1999.”

In her attempt to prove the charge, the prosecution called one (1) witness and tendered seven (7) exhibits- Exhibits “A”, “B”, ‘C”, “D”, “E”, “F” and “G”. At the dose of the case of the prosecution, learned counsel for the appellant made a no case submission. After hearing arguments on the no-case-submission, the learned

trial Chief Magistrate delivered a reserved ruling on 15/11/2017 whereby the no case submission was overruled.

The appellant was not satisfied with the decision of the Magistrate’s Court, overruling her no-case submission, and she appealed to the High Court of Rivers State. After hearing the appeal, the High Court of Rivers State, holden at Port Harcourt, in a reserved judgment delivered on the 17th day of May, 2018, dismissed the appeal. Still not satisfied, the appellant appealed to this Court vide a Notice of Appeal containing the following two (2) grounds: –
“GROUND ONE
The learned trial Judge misapplied the case of Oko V. The State (2017) 17 NWLR (Pt. 1593) 34 @ 5. In this present case to arrival at the decision now appealed against.
PARTICULARS OF ERROR:
a. There was no proper evaluation of the evidence of PW1, as appearing in the transmitted record of appeal from the Magistrate Court by the learned Judge in the Court below.
b. The learned Judge in the Court below failed to consider the evidence of PW1 particularly as appearing in page 25 last paragraph of the transmitted record of Appeal from the Magistrate

Court in arriving at the judgment now appealed against.
c. The learned Judge failed to distinguish between the issues in the case of Oko V. The State (Supra) relied upon end this present case in dismissing the Appellant’s case.
GROUND TWO:
The Honourable Court below misdirected itself in law while reling on the case of Oko V. The State (Supra) in dismissing the Appellant’s appeal.
PARTICULARS OF ERROR:
a. The Honourable Court below never averted it’s mind to the fact that a no case submission has nothing to do with briefness of the ruling but proving the ingredients of the offence as charged.
b. The Honourable Court below only considered in part evidence of the PW1 from the transmitted record of appeal.
c. The Honourable Court below failed to consider the charge before the learned trial Magistrate and the evidence adduced by the PW1 as appearing in pages 25 last paragraph, 26 and 27 of the transmitted record of appeal in dismissing the Appellants appeal.
d. The Honourable Court below failed to consider the fact that this case is a criminal case which was investigated by a Police Officer that was not called to

testify in this case.”

In the Appellant’s brief, filed on 05/12/2018, O. I. Briggs, Esq; learned counsel for the appellant, framed the following issue for determination: –
“Whether from the totality of the evidence adduced by the prosecuting witness and the exhibits tendered, the defendant ought to be called in the circumstance to make her defence.”

On behalf of the respondent, N. A. Ayewoh, Esq., learned counsel for respondent, formulated a lone issue but couched thus:
“Whether the Lower Court was right in overruling the No case submission of the Appellant and calling on the Appellant to enter her defence?”

I have read the arguments of the parties, as contained in the appellant’s brief filed on 05/12/2018; the respondent’s brief flied on 21/01/2019 but deemed as flied on 05/05/2020; and the appellant’s reply brief filed on 11/02/2019 and deemed as filed on 05/05/2020. In addition, I have read the ruling of the Magistrate’s Court on page 35 of the record of appeal and the judgment of the lower appellate Court, which spans pages 76 to 81 of the record of appeal.

For the sake of emphasis and completeness, the relevant portion of the ruling of the trial Chief Magistrate is hereunder reproduced: –
“I have carefully considered the submissions of the defence counsel and the prosecuting counsel. It is my view that the prosecution has made out a prima facie case to call upon the accused person to make her defence.”

record of appeal is transmitted from the lower Court to the appellate court. See Ogwuche V. Mba (1994) 4 NWLR (Pt. 336) 25 and Adedeji V. Military Administrator, Ekiti State (2008) All FWLR (Pt. 401) 869.
In legal parlance, record of appeal consists of the proceedings of the Court, including oral evidence and documents or exhibits tendered during the proceedings. See Adesina V. Adeniran (2006) 18 NWLR (Pt. 1011) 359.
The law seems to be that unless and until the record of appeal is completely compiled and transmitted from a lower Court to an appellate Court, the appellate Court would not be properly seised of the matter as to competently exercise jurisdiction thereon. See Western Steel Works Limited & Anor V. Iron & Steel Workers Union & Anor (1986) 3 NWLR (Pt. 30) 617.
Put pointedly, it is wrong for an appellate Court to act and base its decision on an incomplete record of appeal. Where, therefore, an appellate Court makes pronouncements without the assistance, availability or presence of material or relevant documentary evidence or exhibits, its decision is liable to be set aside. See Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290

and Nwana V. FCDA (2007) 11 NWLR (Pt. 1044) 59.
In this case, the appellant framed the following issue for the determination by the lower appellate Court:-
“Whether from the totality of the evidence adduced by the prosecuting witness and the exhibits tendered, the defendant ought to be called in the circumstance to make her defence.” See page 42 of the Record of Appeal.
The lower Court, in its judgment, held inter alia as follows:-
“Counsel to the Appellant has not shown how the Ruling of the learned trial Magistrate was based on speculations. He has argued copiously on exhibits which are not before the Court as they are neither contained in the Record of Appeal no anywhere else in the case file, this Court therefore cannot make reference to or act on exhibits not before it.” (Underlining mine for the sake of emphasis).
The finding or decision of the lower Court that the exhibits, which the appellants heavily relied on, were not contained in the record of appeal transmitted to the lower court, neither were they independently transmitted from the trial Court to the lower Court, has not been appealed against nor

challenged by the appellant. The appellant is deemed to have accepted the finding of the lower Court to be correct and true. It is trite law that decisions or findings not appealed against are deemed to be correct. See Ndiwe V. Okocha (1992) 2 NWLR (Pt. 252) 129; Alhaji Adeyemi V. Chief Olakunri (1999) 14 NWLR (Pt. 638) 104; Adejumo V. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike E. Nyesom V. Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki V. Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320.
As can be seen from the issue raised in the lower Court by the appellant, as reproduced in this judgment, the exhibits tendered by the respondent in the trial Court were essential and relevant for the just determination of the appeal by the High Court, sitting in its appellate jurisdiction. Notwithstanding that the lower Court found that the record of appeal, before it, was incomplete, it proceeded to determine the appeal – making pronouncements on the rights of the parties. To say the least, it was wrong for the lower Court to determine the appeal before it on an incomplete record of appeal.
Put mildly, by the lower Court

acting on a record of appeal, which did not contain vital documentary exhibits tendered before the trial Court, the lower Court acted without jurisdiction and its decision or judgment is liable to be set aside.
The law, as repeatedly stated in a litany of decisions of this Court and the Supreme Court, is that where a court undertakes to exercise jurisdiction which it does not possess, its decision amounts to nothing than a nullity. See Attorney General For Trinidad & Tobago V. Erichie (1893) A. C. 518; Timitimi V. Amabebe (1953) 4 WACA 374; Ekulo Farms Ltd. & Anor. V. Union Bank of Nigeria Plc (2006) 6 SCM 78; Okolo V. UBN (2004) 3 NWLR (Pt. 859) 87 and Prince Yahaya Oyidi Audu V. All Progressives Congress (2019) 17 NWLR (Pt. 1702) 379.
Jurisdiction of any Court to adjudicate on or entertain any matter before it is a fundamental or threshold issue which can be raised at any time during a Court’s proceedings. It can be raised, even for the first, in an intermediate or final appellate Court by the parties or by the Court sou motu. See Bronik Motors V. Wema Bank (1983) 1 SCNLR 296, Eze V. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51)

506; Chief Ujite Ngere V. Chief Job William Okuruket (2014) 14 NWLR (Pt. 1417) 147; Frank Amah V. Federal Republic of Nigeria (2019) 6 NWLR (Pt. 1667) 160; Okwara Agwu V. Julius Berger Nigeria Plc (2019) 11. NWLR (Pt. 1682) 165 and Chief Albert Alikor V. Rev. Chief M. W. Ogwo (2019) 15 NWLR (Pt. 1695) 331.
I am aware that where the Court raises an issue suo motu, as in this case, it may be wrong to proceed to determine it without drawing the attention of the parties to such issue and giving them an opportunity to address the Court on it. See Osagie V. Adonri (1994) 6 NWLR (Pt. 349) 131, Okonji V. Njokanma (1999) 14 NWLR (Pt. 638) 250 and Abbas V. Solomon (2001) 15 NWLR (Pt. 735).
However, under some special circumstances, the Court can suo motu raise an issue of law or jurisdiction and decide upon it without hearing the parties to the appeal. See Olubode V. Salami (1985) 2 NWLR (Pt. 7) 282; Imah V. Okogbe (1993) 9 NWLR (Pt. 316) 159 and Hon. Polycarp Effiom V. Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106.
Before concluding this judgment, the law is trite, as settled by the Supreme Court, that:

“Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its incompetence and decline to exercise jurisdiction, even if the question of its incompetence has not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.”
Per Ayoola, JSC in Mobil Oil Producing (Nig) Unlimited V. LASEPA (2002) 18 NWLR (Pt. 798) 1 at 31. See also Chief Orlando Olaiya Ojo V. National Pension Commission (2019) 14 NWLR (Pt. 1693) 547 at 565 – 566.
In this case, it was clear to the lower Court that it was not competent to entertain the appellant’s appeal, since the record of appeal before it was incomplete. The lower Court ought to have declined jurisdiction. In this Court, ex facie, the lower Court lacked the jurisdiction to hear and determine the appeal before it and this Court is, in my opinion, justified in raising it as it has been done in this Judgment.
Since the lower appellate Court had no jurisdiction to entertain the appeal before it, that appeal, identified as

Suit No. PHC/3898/2017 between: YITONIERANI BRIGGS V. COMMISSIONER OF POLICE is hereby struck out. Consequently, the judgment of the lower appellate Court delivered on 17/05/2018 is hereby set aside for being a nullity.
The law is that an appellate Court would have no jurisdiction to entertain an appeal arising from a decision of a lower Court where that lower Court had no jurisdiction, in the first place, to entertain the matter before it. See SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (Pt. 1252) 317 and All Progressives Grand Alliance V. Senator Christiana N. D. Anyanwu (2014) 7 NWLR (Pt. 1407) 541.
For all the reasons given above, this appeal is liable to be struck out for want of jurisdiction. This appeal is hereby, accordingly struck out.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the Judgment of my Learned brother Moore Aseimo Abraham Adumein, JCA and I agree with my Lords reasoning and conclusion. The lower Court in its appellate jurisdiction entered Judgment when the record of appeal transmitted to it was bereft of very vital and material evidence. An appellate Court has no duty to hear an

appeal on an incomplete record especially when the missing portion is very vital. See JACK V. A.G & COMMISSIONER FOR JUSTICE, RIVERS STATE & ORS (2013) LPELR-22867 (CA). The Court below in its Judgment at page 42 of the Record of Appeal noted inter-alia that the appellant’s counsel before it “has argued copiously on exhibits which are not before the Court as they are neither contained in the Record of Appeal nor anywhere else in the case file”. Having discovered that vital exhibits were not before it, there was no proper basis on which to proceed to consider the appeal. “The evidence and the proceedings contained in the record of appeal before him are indeed the materials he is enjoined by law in deciding the appeal”. These are not my words; they are the words of Coker JSC in the case of GOLD V. OSASEREN (1970) LPELR-1328 (SC). The Court below, having not seen the evidence it was enjoined by law to see before deciding the appeal, they being very material, its decision to go ahead and decide the appeal regardless, was perverse. It is for this reason and the more detailed reasons given in the lead Judgment that I agree with the lead Judgment of my noble Lord.

Appearances:

I. Briggs, Esq. For Appellant(s)

A. Ayewon, Esq. For Respondent(s)