CHIEF AJIGBOYE OLAGUNDOYE & ANOR v. PRINCE ALBERT & ORS
(2014)LCN/7203(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of May, 2014
CA/AK/24/2010
RATIO
WORD AND PHRASES: TRIAL
After the foregoing, I think what I need to say to the Respondent is the trite that:
“A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested.”
Per Bate J, in Muhammadu Duruminiya v. Commissioner of Police. 1962 NNLR 70 at 73 – 74.
See also, R. v. Gabriel Adaoju Wilcox (1961) All NLR 63. Per MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AJIGBOYE OLAGUNDOYE
2. CLAUDIUS OLANREWAJU LEBI Appellant(s)
AND
1. PRINCE ALBERT
2. PRINCE FRANCEIS ADEBAWO
3. CHIEF ALBERT ASOGA
(The Olutayese of Ode-Irele)
4. CHIEF ADEBOYE AJIBOYE
(suing for themselves and on behalf of Opetusin Royal family of Irele)
5. THE GOVERNOR OF ONDO STATE
6. SPECIAL ADVISER ON CHIEFTANCY AFFAIRS – CHIEF ADEMESO
7. SECRETARY, IRELE LOCAL GOVERNMENT Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 4/4/2012 but filed on 5/4/2012, the Appellants/Applicants prayed as follows:
(i) An order of this Honourable court extending the time within which the Appellants/Applicants may compile and transmit to this court the Notice of Appeal dated and filed on 19th July 2010 as Additional Record in this appeal.
(ii) An order of this Honourable court deeming the said Notice of Appeal attached to the affidavit in support of this application as exhibit ‘A’ as being duly compiled, transmitted and served as Additional Record in this appeal, the requisite filing and penalty fees having being paid.
(iii) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The grounds for the application are as follows:
(a) Judgment in this case was delivered by the trial court, Coram Adeghehingbe J. on 28th June, 2010.
(b) Dissatisfied with judgment, the appellants/applicants (the applicants) as 4th & 5th defendants in the court below, lodged an appeal before this court vide a Notice of Appeal dated 28th June, 2010.
(c) After briefing Chief Wole Olanipekun, SAN, to lead a team of lawyers in the prosecution of this appeal, the applicants filed another Notice of Appeal on 19th July 2010.
(d) The two Notices of Appeal were filed within time.
(e) Pursuant to the above, the applicants through their counsel, took steps to settle the record and to fulfill all the conditions of appeal, as prescribed by the Registrar of the court below.
(f) Upon delivery of the Record of proceedings to the applicants, through their counsel, it was discovered that the Notice of Appeal filed by Chief Wole Olanipekun, SAN, on 19th July 2010, was missing from the record.
(g) It is the Notice of Appeal filed by Chief Wole Olanipekun, SAN, on 19th July, 2010, that the applicants intend to rely on in prosecuting this appeal.
(h) This appeal cannot be conclusively determined without the said Notice of Appeal being transmitted to this Honourable Court.
The Appellants/Applicants application was supported by a 22 paragraph affidavit deposed to by Olumide Ogunje and also Further Affidavit with four (4) Exhibits, A-D of 20-2-2013 deposed to by the same Olumide Ogunje, one of the Counsels representing the Appellants/Applicants. The 1st – 4th Respondents in opposition to the applicants motion filed a Counter – affidavit of 13 paragraphs with Exhibits A- E, deposed to by Stephen Odebeatu, a legal practitioner on 14/1/2013.
Written addresses were filed and served by the parties on the motion of 4/4/2012 as ordered by this Honourable Court as follows:
(a) Address in support of the Appellants/Applicants motion dated 4/4/2012 and filed on 5/4/2012 dated 31/10/12 and filed on 1/11/12.
(b) 1st – 4th Respondents Address in opposition to the motion dated 4/4/2012 dated and filed on 14/1/2013.
(c) 5th, 6th & 7th Respondents Address on the Appellants/Applicants motion on Notice dated 4/4/2012 and filed on 5/4/2012 dated and filed on 6/11/2012.
(d) Appellants/Applicants Reply Address dated 6/5/13 and filed on 7/5/13.
Learned Counsel for the Applicants nominated a lone issue for determination in this application namely:
Whether, given the circumstances of this case, particularly as summarized in paragraphs 2.1- 2.2 (supra) of the Written Address in support, the applicants are not entitled to the relief being humbly sought in this motion.
Learned Counsel for the 1st – 4th Respondents formulated three (3) issues for the determination of the application as follows:
(i) Given the facts placed before this Honourable Court, is an unfiled process – even if tagged a “Notice of Appeal” competent as to be granted leave for inclusion as Additional Record of Appeal.
(ii) Can a Record of Appeal improperly placed before or transmitted to the Honourable Court be a principal document or process upon which an additional record of appeal could be hinged?
(iii) Can a Record of Appeal predicated upon a Notice of Appeal titled:
“Secretary, Irele Local Government & 2 Ors Vs Prince Albert Mesagan & 5 Ors” – as contained on pages 207 and 208 of the so-called Record of Appeal belatedly transmitted to this court, be used to prosecute another “Appeal” entitled “Chief” Ajigbore Olagundoye & 10 Ors Vs Prince Albert Mesagan & 6 Ors” – which is the present pre occupation of the Applicants even if both record and Notice (or Notices) are presumed (but not admitted) competent, as we have it in this case?
Learned Counsel for the 5th, 6th and 7th Respondents formulated two (2) issues for determination as follows:
(a) Whether the Notice of Appeal filed by the Appellants/Applicants in the Appeal has been struck out leaving nothing for the Appellants/Applications motion to rest upon.
(b) Whether the Appellants/Applicants are entitled to be granted the reliefs sought in the motion.
I have carefully gone through the processes filed in this appeal including the various written addresses for and against the Appellants/Applicants motion on Notice of 4/4/2012. I am convinced that a sole issue couched as follows will satisfy the ends of justice in relation to this application:
Whether the Appellants/Applicants are entitled to be granted the reliefs sought in the motion.
In the treatment of this sole issue I will consider the submissions of the Appellants/Applicants together with those of the 5th, 6th and 7th Respondents on one side of the scale as the submissions of the “Applicants”. And, then, consider the submissions of the 1st, 4th Respondents as those of the “Respondent”.
This is for the reason of the shared common interest between the Appellants/Applicants and the 5th, 6th and 7th Respondents and also for convenience.
In arguing the sole issue for determination Learned Counsel to the applicants raised two vital points, namely:
(a) The constitutionality of the right of appeal; and
(b) The well settled principle of law that the mistake or error of the registry of court cannot be visited on a litigant or his Counsel.
On the first point, Counsel urged us to note that the applicants were parties, in fact principal parties to this case at the court below and that the judgment being complained of was/is clearly against their interest. That in the exercise of their constitutional right of appeal, as guaranteed by Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and judicially approved in a plethora of cases such as Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 183 and Management Ent. Ltd v. Otusanva (1987) 2 NWLR (Pt.55) 179 the applicants lodged an appeal against the judgment before this court.
In this connection, according to counsel, the applicants briefed the law firm of Wole Olanipekun & Co. for the prosecution of the appeal. And less than one month after the delivery of the trial court’s judgment i.e. on 19th July 2010, Chief Wole Olanipekun, SAN, filed an appeal on the instruction of the applicants, in terms of Exhibit A (see paragraphs 9 & 10 of the affidavit in support).
That the applicants also took steps to settle the record of appeal and they promptly fulfilled all the conditions of appeal prescribed by the registry of the lower court, as per the depositions in paragraph 12 of the affidavit in support. That after fulfilling the conditions of appeal, the registry of the lower court issued a document certifying this fact as per civil form 6 contained on page 240 of the record. He submitted that the applicants fully satisfied the requirements of the law as per the filing of appeal and are thus entitled to enjoy their constitutionally guaranteed right of appeal.
On the second point, Learned Counsel submitted that the non-inclusion of Exhibit A in the bundle of documents transmitted to this Honourable court by the registry of the lower court was not due to inadvertence of either the applicants or their Counsel. It was clearly a mistake of the court or, better still, the registry of the trial court. The unfortunate error made by the registry of the court below should therefore not be visited on the applicants.
He referred to the case of Anyanwoko v. Okoye (2010) 5 NWLR (Pt.1188) 497 at 520.
Learned Counsel further urged us to note that the applicants paid a penalty of N39,200 for their inability to compile additional record within the time limited by the Rules of this court. That, by paying this huge amount, the applicants are even being indirectly punished for the mistake made by the court below, but for the omission there would have been no need for them to compile any supplementary record. Having already been sufficiently punished or penalized for an error they had not caused, it will be a height of injustice to subject them to further punishment through a refusal of this application.
The Respondents on the other hand contend that the Applicants “Notice of Appeal of 19th July 2010” was at no time filed in the court below. That the copy of the same served on the Respondents bears no semblance of any process duly filed in a court Registry – this time in the lower trial court Registry at the High Court, Okitipupa, Ondo State of Nigeria, in accordance with the provisions of Order 6, Rule 2 of the Court of Appeal Rules, 2011.
Learned Counsel submitted that a casual and brief look at page 208 of the record of Appeal transmitted to this court on 8th December, 2010 will immediately show that the one Notice of Appeal filed by O.R. Omosowone, Esq. on their behalf, was duly filed. One would easily see the fees paid (N5,080.00) one could easily see the dated court stamp (29/06/2010) and one could even easily see the Revenue Collector’s Receipt Number (623109).
That unfortunately for them (applicants) they have abandoned this Notice of Appeal. Again, said counsel, on page 221 of the same document, another Notice of Appeal – filed by F.K. Salami was seen duly stamped and filed dated 28/7/2010 but that, the Appellants “Notice of Appeal of 19th July, 2010” bears no stamp, no fees were paid, and so no endorsement of the Revenue Collector’s Receipt Number could be shown.
Learned Counsel said that on the 26th of November, 2012, as Counsel to the 1st-4th Respondents herein, he wrote a letter Exhibit A to enquire from the Okitipupa High Court and applied that a Certified True copy of the Notice be made available. That Exhibit B, the reply to Exhibit A shows that the Applicants’ Notice of Appeal was never filed.
Learned Counsel referred to the cases of Owoniboys Vs John Holt (2001) 1 WRN 162 and Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208, the first to show that a Notice of Appeal must be filed within the statutorily prescribed period at the Registry of the lower court and the second to demonstrate that the filing of a Notice of Appeal is a necessary prerequisite for the hearing of an appeal. That, in other words, without filing a notice of appeal, there is no foundation upon which an appeal could stand.
He submitted that Applicants’ Exhibit A does not show any mark of having been first filed – no High court stamp, or fees paid, or RC No. on any of its 14 pages.
That by the provisions of Order 7, Rule 11 of the Court of Appeal Rules, 2011 an appeal cannot be deemed to have been brought when the Notice thereof was not filed in the Registry of the lower court. An unfiled Notice of Appeal – like an unsigned Notice of Appeal is fundamentally defective and incompetent.
On this, Counsel referred to the cases of Mobil Oil Nig. Unlimited Vs Rabiu (2003) FWLR (Pt.149) p.1546; Odunze Vs Nwosu (2007) 3 NSCQR p.28, Vibelko Nig. Ltd v. NDIC (2003) FWLR (Pt.179) p.1230, Akinsipe v. Adetorove (1999) 9 NWLR (Pt.617) 161 and Suresh Jopanputra v Ndibuisi (2009) 8 NWLR (Pt.1144) 454 at 461.
Learned Counsel submitted further that apart from the fact that no settlement of record was conducted in respect of the Applicants’ so-called Notice of Appeal of 19th July 2010, (as no settlement of record could be done on 8th July, 2010 in contemplation of an appeal that was not in existence until the 19th of July 2010) the Record of Appeal to which they seek to add their Notice was not transmitted within 60 days of either the Notices of Appeal contained on pages 207 – 208, (28th June 2010). And 214 – 221 (27th July, 2010) respectively. And, that, it was not meant for their “Notice of Appeal” of 19th July, 2010.
Learned Counsel referred to the cases of Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt.619) 513 at 517, Ogunremi v. Dada (1962) 2 SCNLR 417 and Chevron (Nig.) Ltd v. Onwugbelu (1996) 3 NWLR (pt.437) 404 to say first that an appeal is only entered when the court below transmits the Record of Appeal to the appellate court and also that this court can look into the Record of Appeal transmitted to it on 8th December 2010.
Learned Counsel submitted that the Notice of Appeal filed by Mr. F.K. Salami Learned DDCL Ondo State which bears a date (27th July 2010) was transmitted with the record of Appeal of 8/12/2010 that if truly the Applicants Notice of Appeal of 19th July 2010 had existed, it would also have been transmitted with the record of appeal of 8/12/2010.
He submitted further that the case the applicants are pursuing has no foundational basis because the application is predicted on a title: Ajigbore Olagundoye & Anor Vs Julius Mesagan & 4 Ors, but that is not the title contained in the previous Notices of Appeal on pages 207 or 214 of the Record of Appeal belatedly and irregularly transmitted to this Honourable Court.
He referred to the case of Ajayi v. Omorogbe (1993) 6 NWLR (Pt.301) p.512 where the Supreme Court held that an Appellant has a duty to ensure the accuracy of the record of appeal forwarded to the Appellate court.
He concluded, that it is beyond doubt that the Appellants’/Applicants’ case is home to many fundamental errors and irreversible defects and that this court is empowered to strike out a Notice of Appeal when the appeal is not competent or for other sufficient reasons by virtue of the provision of Order 6 Rule 6 of the Court of Appeal Rules 2011.
Significantly, in response to the concluding portion of the submissions of the Learned Counsel for the Respondents, Counsel for the applicants in his reply brief noted that the respondents are not disputing the fact that the applicants herein are appellants in this appeal. That the listing of the parties on the main record was simply based on their status at the court below at the time judgment was delivered. That by the time R.O. Omosowowe Esq. was contacted to handle the appeal, he was briefed by the applicants and the 7th Respondent herein. And, that was why the first Notice of Appeal filed by the said R.O. Omosowowe, Esq listed the three (3) of them as the appellants. But, that by the time Chief Wole Olanipekun, SAN, was briefed to lead the appeal, it was only the first and 2nd appellants/applicants herein who engaged his services, That the law firm of Chief Wole Olanipekun, SAN is representing only the applicants herein because the 7th Respondent, now 2nd Appellant in a sister appeal filed by the Ondo State Ministry of Justice, (Appeal No.CA/AK/89/2011) was not part of the people who briefed Chief Wole Olanipekun, SAN. That the status of the parties is as reflected in the Notice of Appeal filed by Chief Wole Olanipekun, SAN, i.e. Exhibit A herein. That is, the document that has been omitted by the Registry of the court below in the compilation of the main record. And, that this is the document the Appellants are, by this application, seeking the leave of this court to transmit to this court as additional or supplementary record.
It seems to me, in-spite of the attempt by the Learned Counsel for the Respondents to prolong and or complicate the issues that the central issue in this application is whether the Appellants’/Applicants’ Notice of Appeal dated 19th July 2010 was duly filed in the court below as to form part of the record of appeal or to be deemed to be part of the record of appeal transmitted to this Honourable court on 8th of December 2010.
The Applicants have argued that the said Notice of Appeal was duly filed and that it was in error from the Registry of the High Court of Ondo State, Okitipupa that the said Notice of Appeal did not accompany the record of appeal transmitted to this court on 8/12/2010.
The Respondents on the other hand argued that the said Notice of Appeal was never filed in any court Registry that there was no mistake by the Registry of the lower court as the said Notice of Appeal of 19th July 2010 was not in existence at the time of settlement and transmission of the record of appeal of 8/12/2010 in the court below. The Respondents argued further, that if there was such an error, the Registry would have also forgotten to add the Notice of Appeal filed on 27th July 2010, by F.K. Salami learned DDCL Ondo State which in fact post-dated the one of 19th July 2010 by the Applicants.
The strongest of the points made by the Respondents in opposition to the Applicants motion on Notice is that the Respondents Exhibit ‘B’ a letter by which Mr. F. Ogidan (Assistance Chief Registrar) High Court of Justice, Okitipupa dated 28/11/2012 to S.O. Kayode Okimoba Esq. concluded that “I also wish to inform you that the notice of appeal dated 19th day of July, 2010, you referred to in your letter is not seen in this office, please”.
Unfortunately however, the letter Exhibit B by the Respondents in itself not been evidence on oath could not as a matter of priority of evidence withstand and/or override either the Exhibit B attached to the Appellants/Applicants Further Affidavit or even the Exhibit A attached to the Appellants/Applicants supporting affidavit for the motion on Notice.
Now, contrary to the argument perhaps assertion of the Respondents’ in paragraph 3.16 of their Written Address, the Applicants Exhibit B attached to the Further Affidavit is the, or a copy of the said applicants Notice of Appeal dated 19/7/2010. It contained the fees paid (N5,100), the court Stamp dated 19/7/2010 and revenue Collectors Receipt Number (623143).
Similarly Exhibit A attached to the applicant’s Motion on Notice is a certified true copy of each and every page of the Appellants’/Applicants’ Notice of Appeal dated 19th July 2010. Signed by Chief Wole Olanipekun, SAN.
The said Exhibit A of the Applicants was certified by one O. Akiluwade, Registrar High Court of Justice, Okitipupa Ondo State in substantial conformity with the provisions of Sections 111 – 112 Evidence Act Cap 112 LFN 1990 now Sections 104 – 105 of the Evidence Act 2011. The Sections read as follows.
104. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.”
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105. Copies of documents certified in accordance with section 104 may be produced in proof of the contents of the public documents or parts of the public document of which they purport to be copies.
The provisions of Sections 111 – 112 of the Evidence Act cap. 112 LFN 1990 (now sections 104 – 105 Evidence Act 2011) are so clearly appropriate to the instant case that one does not need to go as far as to say that in any event the totality of the averments in the Respondents Counter-Affidavit are not sufficient to disprove the presumption of genuineness of certified true copies, presumption of regularity and the presumption of proper custody assumed in favour of the Exhibit A attached to the Applicants’ motion on Notice and the Exhibit B attached to the Applicants’ further affidavit in support which are respectively certified true copies and the true copy of the Appellants’/Applicants’ Notice of Appeal of 19th July, 2010.
Section 114, 116 and 117 of the Evidence Act Cap. 112 LFN 1990 (now Sections 146 and 168 of the Evidence Act 2011) incorporate in different versions the common law concepts of presumption of genuineness of certified true copies of public documents. Presumption of regularity of official document and presumption of proper custody.
Now Section 4 of the Evidence Act Cap. 112 LFN 1990 (now Section 145 Evidence Act 2011) gives the court a blanket power to presume some facts and treat them as being proved unless it is contrary wise proved.
In the instant case, it could not be said that the Respondents have disproved the assertion by the Applicants through the Exhibit A attached to the affidavit in support and Exhibit B attached to the applicants’ further affidavit that the Applicants’ Notice of Appeal dated 19th July 2010 was not duly filed in the Registry of the lower court.
After the foregoing, I think what I need to say to the Respondent is the trite that:
“A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested.”
Per Bate J, in Muhammadu Duruminiya v. Commissioner of Police. 1962 NNLR 70 at 73 – 74.
See also, R. v. Gabriel Adaoju Wilcox (1961) All NLR 63.
In the circumstances, the Appellants’/Applicants’ application dated 4/4/2012 and filed on 5/4/2012 succeeds. Time is extended for the Appellants/Applicants to compile and transmit to this court the Notice of Appeal dated and filed on 19th July 2010 as Additional record in this appeal. Furthermore, the said Appellants’/Applicants’ Notice of Appeal shall be filed as Additional record of appeal not later than 14 days from today without further payment of penalty or filing fees.
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A.: I have read in advance the Ruling just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA, and I agree with the conclusion reached therein.
I wish to emphasise that it is trite that a court process once filed becomes a public document. The implication of this is that it is only a Certified True Copy (C.T.C.) of same that can be tendered and admitted in evidence to prove the content in court. Applicants’ Exhibit A attached to the Motion on Notice is a certified true copy of all the pages of applicants’ Notice of Appeal dated 19th July, 2010. Also Exhibit B attached to the Further Affidavit is a copy of the said Notice of Appeal dated 19/7/2010. On the face of Exhibit B can be seen the fees paid in the sum of N5,100.00, the court stamp dated 19/7/2010 and court Registry receipt number 423143. Further, Exhibit A was certified by one O. Akiluwade, Registrar High Court of Justice, Okitipupa, Ondo State. This is substantial compliance with Sections 104 and 105 of the Evidence Act, 2011.
It must be pointed out that Mr. Ogidan who signed respondents’ Exhibit B did not deny that the said Notice of Appeal dated 19/7/2010 was not filed or does not exist. All he said was that, “l also wish to inform you that the Notice of Appeal dated 19th day of July, 2010, you referred to in your letter is not seen in this office, please.” This cannot be construed to mean that the document under reference does not exist or was not filed at the court Registry.
For this and the more detailed reasons ably advanced in the Ruling, I also hold that the appellants/applicants’ motion on notice dated 4/4/2012 and filed 5/4/2012 succeeds. I abide by all orders made in the lead Ruling, including orders as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read in advance the lead judgment just delivered by my learned brother OWOADE, JCA and I agree entirely with the reasoning and conclusion reached therein. Accordingly, the appellants/applicants’ application dated 4th April, 2012 and filed 5th April, 2012 succeeds. I abide by the consequential orders as made therein.
Appearances
Ife-Olu Koni Esq with Olumide Ogunje for the Appellant/ApplicantFor Appellant
AND
S. O. Kayode Okimoba Esq for the 1st – 4th Respondents
F. K. Salami for the 5th, 6th and 7th RespondentsFor Respondent
