CHIEF SAMUEL EFFIONG EDUOK v. MRS. MARY EFFIONG EDUOK & ANOR
(2012)LCN/5674(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2012
CA/C/121/2010
RATIO
RECORD OF APPEAL: IMPORTANCE
A complete and correct record is what foists the Court with jurisdiction to hear and adjudicate over an appeal. Where the Record of Appeal is incomplete or incorrect it robes the court of jurisdiction to hear same.PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
CHIEF SAMUEL EFFIONG EDUOK Appellant(s)
AND
1. MRS. MARY EFFIONG EDUOK
2. MR. ODOFODO MKPOSONG EFFIONG EDUOK Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling): This is a motion on notice filed on 27th April, 2012 brought pursuant to Order 4 Rule 1, Order 7 Rule 1 of Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. The Respondent is praying for the following orders:
1. An order of this Honourable Court striking out Appeal No. CA/C/121/2010.
2. And for such further or other orders as the Court may deem fit to make.
The grounds upon which the application is brought are as follows:
1. The Records of Appeal meant to be used or relied upon for the determination of the appeal are false, not coherent and are to a large extent incorrect.
2. The Appeal is incompetent based on Ground No. 1 given herein and the court cannot hear same.
In support of this motion is a 15 paragraphs affidavit deposed to by one Aniekon George Udoh. Counsel relies on all the paragraphs of the affidavit and urges the court to grant him, his prayers.
In reply, the Appellant/Respondent filed a Counter Affidavit of 4 Paragraphs on 23rd May, 2012 deposed to, by one Bassey Obiofia.
The Respondent/Applicant had complained that the records were incorrect. See Paragraphs 7-11 of the Applicant’s affidavit in support of his motion.
7. That upon Hon. Justice J. I. Okoro’s appointment as Justice of the Court of Appeal, the said Justice ceased to be a Judge of Akwa Ibom State High Court and he ceased to preside over any proceedings of the High Court of Akwa Ibom State but the Record of Appeal filed in the Court on 25th August, 2011 (at pages 147 – 162) show that the proceedings in suit No. HU/357/2004 were still heard and signed by Hon. Justice J. I. Okoro after the said Justice had been appointed a Justice of the Court of Appeal.
8. That in pages 147 to 162 of the Record of Appeal, Hon. Justice J. I. Okoro is alleged to have continued to hear suit No.HU/357/2004 after he had been appointed as Justice of the Court of Appeal.
9. That the proceedings said to be the proceedings of 2nd day of August, 2006 (as found in page 147 of the Record of Appeal is incomplete as the next page of the Record of Appeal (that is page 148) starts with the proceedings of 14th day of August, 2006.
10. That there are fatal mix-ups of proceedings in pages 148, 149, 150-154 of the Record of Appeal such that the proceedings in those pages of the Appeal Record are not coherent and are not meaningful.
11. That at pages 160 to 163 of the Record of Appeal, both Hon. Justice J. I. Okoro-Judge and Hon. Justice M. E. Udomo-Judge are alleged to have jointly signed the proceedings of the lower Court of 23rd January, 2007 in suit No.HU/357/2004.
Judicial notice would be taken that Hon. Justice J. I. Okoro of the Akwa Ibom State High Court was appointed a Judge of the Court of Appeal and sworn in on 8th June, 2006. He become functus officio of the Akwa Ibom State High Court. The Record of Appeal pages 147-162 could not have been the proceedings presided over by Okoro J. as he then was. He was ready in the Court of Appeal. Those records cannot be a representation of the true facts.
All proceedings in the Record of Appeal after 8th June, 2006 when Hon. Justice J. I. Okoro was already in the Court of Appeal cannot be a true representation of the facts.
I have gone through the paragraphs of the motion and the pages referred to in the Record of Appeal and have no doubt in my mind that the Record of Appeal is not a correct representation of facts.
A complete and correct record is what foists the Court with jurisdiction to hear and adjudicate over an appeal. Where the Record of Appeal is incomplete or incorrect it robes the court of jurisdiction to hear same.
The learned counsel for the Appellants failed to diligently compile the records. Worst still when his attention was drawn to it he still persisted in his supposed ignorance. It is clear that these records are incorrect and I say no more.
The Record of Appeal transmitted to this court is incorrect there-by robbing the court of jurisdiction.
Where a court lacks jurisdiction the only thing left to be done is to strike out this Record of Appeal transmitted to this court on 25th August, 2011.
Record of Appeal is struck out.
Cost to the Applicant is assessed at N50,000.00
MOHAMMED LAWAL GARBA, J.C.A.: I agree with the reasoning and conclusion of my learned brother U. I. Ndukwe-Anyanwu, JCA, that the record of the appeal be struck out for not being the correct record of the proceedings before the High Court, having read a draft of the lead ruling just delivered in the application before today.
I too strike out the said record received in the court on the 25/8/2011 and abide by the order on costs.
JOSEPH TINE TUR, J.C.A: I have read the ruling of my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur.
Section 122(2)(j) and (m) of the Evidence Act, 2011 enables this Court to take judicial notice of the names of the members and officers of a Court. The Court can also take judicial notice of the course of proceedings in any Court established by or under the Constitution of the Federal Republic of Nigeria, 1999 as altered. The High Court of Justice in which Justice J. I. Okoro (as he then was) presided is created by Section 270(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.
Judicial notice can be taken that Hon. Justice Okoro (as he then was) of the High court of Justice, Akwa Ibom State was elevated to the Court of Appeal and sworn on 8th June, 2006 hence he could not have sat to conduct proceedings in the High Court on 02/08/2006; 14/08/2006 during annual vacation and thereafter on 02/11/2006; 22/11/2006; 11/12/2006; 10/01/2007 and 23/01/2007 as the record of proceedings compiled and transmitted to this Court purports. It has never been the practice for a Justice of the Court of Appeal to sit in the High Court of Justice notwithstanding his elevation to the Court of Appeal.
Order 4 Rule 10 of the Court of Appeal Rules, 2011 provides that “An appeal shall be deemed to have been entered in the Court when the Record of Proceedings in the Court below has been received in the Registry of the Court.” What should be compiled and transmitted to the Court of Appeal by the Registrar under Order 8 rule 1 of the Rules supra is The Record of Appeal.” What is before this court cannot and is not The Record of Appeal hence the appeal has not been entered in this Court. The judgment sought to be appealed against was delivered on 29th October, 2009. The Notice of Appeal was filed on 9th February, 2010.
I am of the opinion that without the correct and accurate Record of Appeal it is impossible to enter this appeal for hearing. It may also not be possible for the parties to file their respective briefs of argument to enable the appeal to be determined on the merit. The most appropriate remedy in this circumstance is to strike out the purported Record of Appeal. I also strike out the Record of Appeal with N50,000.00 cost to the Respondent.
Appearances
Professor Enefiok EssienFor Appellant
AND
For Respondent
