ELDER WOLE OYELESE & ORS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2011)LCN/4392(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2011
CA/I/M.36B/2011
RATIO
PREVIOUS DECISION OF COURT OF APPEAL: INSTANCES WHEN THE COURT OF APPEAL CAN DEPART FROM ITS PREVIOUS DECISIONS
It is settled law that the court of Appeal unlike the supreme court is bound by its previous decision’ The Court of Appeal can only depart from its previous decisions in the following circumstances: (1) Where two decisions of-the Court of Appeal are in conflict, the Court must choose between them (2) Where the court of appeal comes to a conclusion that a previous decision although not expressly overruled cannot stand with a subsequent decision of the supreme court (3) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e in ignorance of a statute or other binding authority, the Court is not bound by it. (4) Where the previous decision was decided without jurisdiction. See the cases of IBAKU VS. EBINI (2010) 17 N.W.L.R PART 1222 page 286 at 319 and ADESOKAN VS. ADETUNJI (1994) 6 S.C.N.J at 123. PER MODUPE FASANMI, J.C.A.
RECORD OF APPEAL: CONTENT OF A RECORD OF APPEAL
Under Order 8 rule 7 of the Court of Appeal Rules 2007, 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 complied 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.” I have gone through the length and breadth of the bundle of documents attached to this application marked as exhibit A, though the non inclusion of the index is not fatal because it is just to assist the parties and the court for ease of reference it can be dispensed with see AGBANA vs. MAYOWA (2004) 5 S.C.N.J at 195. The absence of the statement of facts may also not affect the record. The certification showed that it was stamped, signed and dated at every page. This is sufficient compliance with the compilation of the record of the lower court. See DAGGASH v. BULAMA (2004) ALL FWLR Pt.212 at 1666. PER MODUPE FASANMI, J.C.A.
NOTICE OF APPEAL: ESSENCE OF A NOTICE OF APPEAL
Without the notice of appeal, the Court has no jurisdiction to entertain the application. A notice of appeal is the “spinal Cord” of an appeal. It is the foundation upon which an appeal is based. It is also the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. see the cases of ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR Pt.11 to page 592 at 614 and SHELIM v. GOBANG (2009) 12 NWLR Pt. q1156 page 435 particularly at 453 and 454. PER MODUPE FASANMI, J.C.A.
JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION IN ADJUDICATORY PROCESS; WHEN IS A COURT COMPETENT
…it is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. See the cases of MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 2 NWLR PT. 58 AT 539; UTIH V. ONOYIVWE (1991) 1 NWLR PT. 166 AT PG166; SHELIM V. GOBANG (2009) 12 NWLR PT.1156 PG.435 AT 452 PARAS A-B; YUSUF V. OBASANJO (2005) 20 WRN 1 AT 90 – or (2005) 18 NWLR PT.956 AT A. G. ABIA STATE V. A. G. FED. (2006) 16 NWLR PT.(1005) PG.265 AT 373-374. The long standing decision the Supreme Court in the case of MADUKOLU V. NKEMDILIM (1962) SCNLR PG. 341 held that a Court is competent when: (1) It is properly constituted as regards numbers and qualification of its members of the bench and no member is disqualified for one reason or another (2) The subject matter of the case is within its jurisdiction and there is no feature in case which prevents the Court from exercising its jurisdiction (3) The case comes before the Court initiated by due process of law and upon condition precedent to the exercise of jurisdiction. PER MODUPE FASANMI, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. ELDER WOLE OYELESE
2. ALHAJI YEKINI ADEOJO
3. ALHAJI GBOLARUMI HAZEEM
4. SENATOR LEKAN BALOGUN
5. ABIODUN O. OLAOMI
6. ENGR. C. G. DIBIA
7. MRS. ESTHER ADEBAYO
8. MR. BISI E. JALONIBU
9. MR. A. ENIADE
10. PRINCE NIYI OYETUNJI
11. MRS. DOYIN RAJI
12. MRS. MFATU AMUSAT
13. JOEL ADEFABI
14. AKINBODE OLANIYI
15. ADESHINA AKEEM
16. ADIJAT KAZEEM
17. ALHAJI ADENIYI SALIMONU
18. ISAAC OLAGBENRO
19. BOSEDE OLADOKUN
20, MR. S. O. OKUNOLA
21. MRS. S. O. BADMUS OMOWUNMI
22. MR. Z. O. ALAWODE
23. ELDER FRED AJAO
24. MR. TIAMIYU KAMORU
25. MR. SAKA KINGSLEY
26. ALHAJI MUDASIRU ADEPOJU
27, MR. OLAORE MUNIRU
28. HON. MUREQA ADEBOJE
29. OYELOLA POPOOLA
30. BABATUNDE AREMU
31. BENJAMIN LOGUN
32. SIKIRU OYEDELE
33. ESO IBMHIM
34. J. O. ABIODUN
35. YEKINI ATOYEBI
36. FEMI ADEBISI
37. ADIJATU BOLATITIO Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY
3. THE EXECUTIVE GOVERNOR OF OYO STATE Respondent(s)
MODUPE FASANMI, J.C.A.(Delivering the Lead Ruling): This is an application brought pursuant to order 19 rule 2 of the court of Appeal Rules, 2007. seeking an order of this Honourable Court:
(1) To depart from the Rules of this court for expeditious hearing of this appeal.
(2) Leave of this Honourable Court to rely on and use the bundle of documents filed herein as the Record of Proceedings for the purpose of this appeal.
(3) An order of this Honourable Court deeming the brief of argument filed herein as properly filed.
The grounds upon which the reliefs are based are:
(1) Time is of essence in this case
(2) The outcome of the substantive suit in this case will determine the political interest of the parties herein in the incoming April 2011 general election.
(3) The Appellants have compiled the record relevant to this appeal and same has already been filed in this case
(4) That quick hearing and determination of this appeal will enable the trial Court to properly determine the pending substantive suit.
The application is dated 21st February, 2011 but filed on 22/2/11.
The application is supported by a nine paragraph affidavit.
With the leave of the Court, learned silk for the Applicants O. O.
Akeredolu withdrew the third leg of the application.
Mr. Elekwa for the 1st Respondent says he has not received the
process. He however admitted that 1st Respondent has been duly served
through one of their offices. He was later given a copy from our record before the motion was moved.
prince Fagbemi learned silk for the 2nd Respondent says he is not opposing Chief Akinjide learned silks for the 3rd Respondent says he is not opposing as well.
prayer 3 of the application asking for a deeming order of the Applicant’s brief having been withdrawn was accordingly struck out.
Learned silk for the Applicants relied on a, the paragraphs of the affidavit and went further to submit that ordinarily he should have moved in terms but there, counter-affidavits filed by the Respondents. He referred to the counter-affidavit filed on the 4th March, 2011 by the 2nd Respondent sworn to by Lukman Akanbi particularly paragraph 6 which states:
“That I know as a fact that the bundle of documents on which the Appellants want this court to rely on for the purpose of this appeal are not documents of the Federal High Court.”
He submitted that all the documents had been certified page by page as the true copy of the record of appeal. Learned silk argued further that he could not have waited for 60 days before bringing this application because time is of essence. For one to wait for sixty days would be defeating when election is coming up in April less than sixty days.
On the further counter affidavit of the 2nd Respondent fired on 7/3/11. Learned silk replied to paragraphs 7 and B that it is not to say that they have not been at the registry of the Federal court to settle record, the applicants have only assisted the court below in compiling record, It is a notorious fact that records of the court below are not compiled timeously and no Applicant worth its salt will wait for such record.
According to the learned silk for the Appellants, the 3rd counter affidavit filed by the 3rd Respondent raised two issues. Paragraphs 6 & 7 of the 3rd Respondent counter affidavit allege incomplete record. It did not state which document or documents that are missing. He however concedes paragraph B of the counter affidavit that the document does not have an index for ease of reference. Learned silk for the Appellants submitted that the Court can order that the index should be provided in the interest of justice. The conditions for departure from the rules are settled in the case of THE OWNERS OF M. V. LUPEX (1993) 2 N.W.L.R. part 278 at page 670 particularly at pages 679 to 680 per Niki Tobi J.C.A.
Learned silk urged the Court to grant the application, Mr, Elekwa for the 1st Respondent in opposing the application on point of law submitted that under Order B rule 4 of the Court of Appear Rules 2007, it is only after 60 days when the Registrar of the Court below fails to compile that the Appellant can compile same. Order 19 rule 2 under which the motion for departure from the rules is brought is inapplicable in this circumstance. He urged the court to discountenance the application and dismiss it in its entirety.
Prince Fagbemi S.A.N for the 2nd Respondent submitted that the Appellants/Applicants did not move their application. He urged the court to strike out the motion having been abandoned. In the alternative, if the application is overruled learned silk submitted that he has filed a counter affidavit on the 4th of March 2011 of 18 paragraphs deposed to by Lukman Akanbi and a further counter affidavit of 11 paragraphs on the 7th of March 2011 also deposed to by Luknran Akanbi. He submitted that the application is unmeritorious. He argued that there is no notice of appeal in the bundle of documents which the Appellants are seeking to bring in. He placed reliance on the case of ASOL NIGERIA LTD v. ACCESS BANK 297. The authority is to the effect that departure from the rules is not cognizable. Learned Silk contended that the Applicants have not shown good reasons why there should be departure from the rules. He contended in his counter affidavit and further counter affidavit filed on the 4th of March and 7th of March 2011 respectively that the registrar issued a notice to the parties to come and compile record. The Applicants ignored the notice. In the record, attached to this application marked Exhibit A learned
silk contended that there is no index, no statement giving particulars of the case by the Registrar, no notice of appeal and other relevant documents to accompany the record. Without the notice of appeal, the Court has no jurisdiction to entertain the application. Looking at the bundle of the documents they are not documents emanating from the Federal High Court. Learned silk submitted further that documents emanating from the Federal High Court are public documents. He referred to Section 111 of the Evidence Act. The features to be shown in a public document are not something one can waive. It is a matter bordering on the exercise of discretion and the discretion must be exercised judiciously and judicially.
Learned silk for the Appellants/Applicants did not tell us how the political interest arises. Submitting further that the case of OWNERS M. V. LOPEX relied upon by the learned silk for the Applicants does not apply.
The records of appear are at variance. Learned SAN for the 2nd Respondent urged the Court to dismiss the application.
Chief Akinjide learned S.A.N for the 3d Respondent filed a fifteen paragraph counter affidavit on the 7th of March, 2011. It contained one annexure in opposition to the application, Mr. Adekunle M. Rufai deposed to the application. He relied on all the paragraphs of the affidavit. Learned silk opined that M. V. Lopex which the Applicants relied upon was decided on the former court of Appear Rules which has been repealed while the learned silk for the Applicants brought his application pursuant to the current Court of Appeal Rules 2007. He placed reliance on ASOL NIG. LTD v. ACCSS BANK LIMITED supra and submitted that the authority is binding on this court. Learned silk urged the court to dismiss the application with heavy cost.
Learned senior counsel for the Applicants O.O. Akeredoru in reply on points of raw submitted that this court should not be bound by the decision in the case of ASOL NIG. LTD VS. ACCESS BANK NIG. PLC Supra. Learned silk opined that when a Judgment says there is no departure from the rules of the Court of Appeal 2007, then what is order 1g rule 2 meant for?. He submitted that if an Applicant wants Justice before 60 days as stipulated by the rules, then there must be a departure. If there is a departure. Applicant does not need to include at the items stated under order 8 rule 7 when compiling record. Learned silk submitted further that where the certification of the documents have not complied with order 8 rule 7, the court can use its discretion for re-certification. Learned Senior Counsel finally urged the Court to grant the application.
The arguments of the learned silk for the Applicants’ the learned Counsel for the 1st Respondent and the learned silk for the 2nd and 3rd Respondents respectively are based on whether or not this Court could entertain departure from the rules of the Court of Appeal and that the application is not properly before the Court on the 1st issue. Learned silk for the Applicants relied on the case of M.V. Lopex supra to back up his argument as to why we should entertain departure from the rules.
Learned Counsel for the 1st Respondent and learned Senior Counsel for the 2nd and 3rd Respondents respectively are vehemently opposed to entertaining departure from the rules in view of the decision in the case of ASOL’S (NIG) LTD supra. It is therefore necessary to look at these two cases, if they are distinguishable.
I have carefully gone through both cases and I observe that the case of IN RE THE VESSEL M. V. LOPEX was decided under Order 7 rule 2 of the Court of Appeal Rules 1981 to the effect that departure from the rules is a discretionary one and it is not granted as a matter of course whether or not the application is objected to. The conditions under which the discretionary power could be entertained are stated at page 680 paragraphs A-B by the learned jurist thus:
“By Order 7 rule 2 of the Court of Appeal Rule, 1981 as amended this Court “many direct a departure form the Rules in any way when this is required in the interest of Justice.” It is clear from the rule that this court has a wide discretionary power exercise in the matter. In the exercise of its discretionary power, the court will consider amongst other reasons (a) the need to accelerate the appeal in the light of the urgency Involved as deposed to in the affidavit.”
Whereas Asol’s case says by virtue of Order 8 rule 4 of the Court of Appeal Rules, 2007, the Appellant is now conferred with the right, duty and obligation to compile and transmit the records of appeal after the expiration of the registrars 60 days where the latter fails or neglects to do his compilation and transmission of the record as directed in the preceding part of the rules.
It should be noted that Asol’s case did not receive arguments on order 19 rule 2. if the court’s attention had been drawn to the order and the case of Lopex, its own previous decision, it would have arrived at a different decision. The Applicant in Asol’s case neglected to compile the record within the time prescribed by the Rules of Court after the Registrar of the Court below failed to compile it. He was indolent.
In the instant case, it is the reverse, the Applicants are vigilant and are saying we should shorten the time for them, not to extend the time for the preparation of the record of appeal due to the urgency of the case. If Asol,s case is followed, it will surely work injustice for the Applicants because parties may be shut out under urgent situations needing departure from the Rules.
The view expressed in Lupex case was further reinforced in the case of ALHAJA ADENIJI VS. ONAGORUWA (1994) 6 N.W.L.R Part 394 the learned jurist Pats – Acholonu J.C.A as he then was stated the purpose of Order 7 Rule 2 of the Court of Appeal Rules 1981 and its effect on the jurisdiction of the Court thus:
“The purpose of Section 7(2) is to accelerate the cause of justice when an appeal has been filed in the court of appeal. The administration of justice is based on some philosophical tenets where by
certain empirical factors must be considered to make or felicitate adjudication. I do not belong to the class of jurists who believe in setting the clock back thereby rendering the attempt to modernize practice and procedure to eliminate unnecessary delay to moribundity or send same tot the doldrums: I believe that when an appeal is duly entered in the spirit of OGUNREMI v. DADA (1962) 2 SCNLR 417; (1962) 1 All NLR 663, an appellant can take any advantage of the rule to urge the court to determine the matter with minimum of delay. I am of the strong view that once an appeal is listed and it is given a number whether or not with an “M”, it is before this court and immediately, this court assumes jurisdiction. That does not imply that this court is therefore hungry for jurisdiction.”
It is settled law that the court of Appeal unlike the supreme court is bound by its previous decision’ The Court of Appeal can only depart from its previous decisions in the following circumstances:
(1) Where two decisions of-the Court of Appeal are in conflict, the Court must choose between them
(2) Where the court of appeal comes to a conclusion that a previous decision although not expressly overruled cannot stand with a subsequent decision of the supreme court
(3) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e in ignorance of a statute or other binding authority, the Court is not bound by it.
(4) Where the previous decision was decided without jurisdiction. See the cases of IBAKU VS. EBINI (2010) 17 N.W.L.R PART 1222 page 286 at 319 and ADESOKAN VS. ADETUNJI (1994) 6 S.C.N.J at 123
Since Asol’s case did not receive arguments on Order 19 rule 2 of the Court of Appeal Rules 2007 and Lopex case was neither cited nor referred to by Counsel, it is my view that the Court can entertain the application for departure following Lupex case as the rule of Court considered fully in Lupex case is the same wit6 our present rules of Court i.e Order 19 rule 2 of the Court of Appeal Rules 2007.
But that is not the end of the matter as the discretionary power under this rule is not granted as a matter of course, this Court will now consider whether the bundles of documents compiled attached to this application marked exhibit A satisfy what a record of appeal should contain. Under Order 8 rule 7 of the Court of Appeal Rules 2007, 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 complied 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.”
I have gone through the length and breadth of the bundle of documents attached to this application marked as exhibit A, though the non inclusion of the index is not fatal because it is just to assist the parties and the court for ease of reference it can be dispensed with see AGBANA vs. MAYOWA (2004) 5 S.C.N.J at 195. The absence of the statement of facts may also not affect the record. The certification showed that it was stamped, signed and dated at every page. This is sufficient compliance with the compilation of the record of the lower court. See DAGGASH v. BULAMA (2004) ALL FWLR Pt.212 at 1666.
However the notice of appeal was not attached. This is very fundamental. Without the notice of appeal, the Court has no jurisdiction to entertain the application. A notice of appeal is the “spinal Cord” of an appeal. It is the foundation upon which an appeal is based. It is also the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. see the cases of ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR Pt.11 to page 592 at 614 and SHELIM v. GOBANG (2009) 12 NWLR Pt. q1156 page 435 particularly at 453 and 454.
I need to state it here that it is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. See the cases of MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 2 NWLR PT. 58 AT 539; UTIH V. ONOYIVWE (1991) 1 NWLR PT. 166 AT PG166; SHELIM V. GOBANG (2009) 12 NWLR PT.1156 PG.435 AT 452 PARAS A-B; YUSUF V. OBASANJO (2005) 20 WRN 1 AT 90 – or (2005) 18 NWLR PT.956 AT A. G. ABIA STATE V. A. G. FED. (2006) 16 NWLR PT.(1005) PG.265 AT 373-374.
The long standing decision the Supreme Court in the case of MADUKOLU V. NKEMDILIM (1962) SCNLR PG. 341 held that a Court is competent when:
(1) It is properly constituted as regards numbers and qualification of its members of the bench and no member is disqualified for one reason or another
(2) The subject matter of the case is within its jurisdiction and there is no feature in case which prevents the Court from exercising its jurisdiction
(3) The case comes before the Court initiated by due process of law and upon condition precedent to the exercise of jurisdiction. It is on this score of not establishing the existence of a notice of appeal in the bundle of documents attached that this court declines jurisdiction to entertain the application. The compiled record is incomplete having left out a vital requirement of the court of Appear. The record is compiled in the court below where the notice of appeal is normally filed. Order 7 rule 11 of the Court of Appeal Rules 2007 provides.
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below”
It is after it has been filed that the Registrar of the Court below shall endorse on the notice of appeal or application the fees paid thereon, receipt number and the date of payment. The registry of the Court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. See Order 6 rules 7 and B of the Court of Appeal Rules 2007.
Finally this application lacks merit and it is hereby refused. The application is accordingly struck out.
SIDI DAUDA BAGE, J.C.A.: I read in draft the erudite ruling of my learned brother, M. Fasanmi J.C.A. The ruling exhausted all the issues in contention, and I do not have anything more to add. I too make the order that this application lacks merit, and it is accordingly struck out by me.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The first salvo opened against the application for departure from the Rules of this court by granting the applicants leave to rely and use the bundle of documents comprising the compiled record of proceedings of the court below was that the application itself was never moved by applicants, learned senior counsel.
with deep respects, the application was audibly moved by applicants’ learned senior\counsel, Mr. Akeredolu, who referred to the body of the application in the course of moving it orally in the well of the court. The fact that learned senior counsel for applicants did not adopt the monotonous traditional method of refrain used in moving motions in the lower courts, but chose the crisp approach common in the moving of motions in appellate courts did not detract from the net result that he moved the application. Learned senior counsel for the applicants did not, therefore, abandon the motion, as there was no express commitment by him before us of his abandonment of the application – see by analogy Magnusson v. Koiki and Others (1993) 9 NWLR (pt.217) 287 at 296 (paragraph H(, and page 303 (paragraph E).
The second salvo was sponsored collectively by learned senior counsel for the respective 2nd and 3d respondents. It had to do with our decision in Asol Nigeria Ltd. v. Access Bank Plc. (2009) 10 NWLR (Pt.1149) 283, which held inter-alia that under the Court of Appeal Rules, 2007, (Rules of this Court), unlike its predecessor the defunct 2002 Rules.
this Court cannot entertain an application for departure from its Rules. It is true, we held so in the Asol case (supra).
We were referred to our decision in The Owners of M. v. Lupex (1993) 2 NWLR (Pt.278) 670 by learned senior counsel for applicants, where we held that an application for departure from the Rules of this Court can be entertained by the Court. Again, it is true, we held so.
By section 237(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution) there is only one Court of Appeal for Nigeria. Administratively, however, several divisions of the Court of Appeal are in place in certain parts of the country for the purpose of bringing justice near the people. Notwithstanding the divisions comprising the Court of Appeal, any decision from any of the divisions is binding on all the divisions – see Ibaku and Another v. Ebini and Others (2010) 17 NWLR (Pt.1223) 286 at 319 thus:
“… it is settled Law that the Court of Appeal is bound by its previous decisions.”
Ibaku (supra) catalogued instances the Court of Appeal may refuse to be bound by its previous decision thus:
“(1) Where two decisions of the Court of Appeal are in conflict, the Court must choose between them.
(2) Where the Court of Appeal comes to a conclusion that a previous decision although not expressly overruled cannot stand with a subsequent decision of the Supreme Court.
(3) Where the Court of Appeal comes to the conclusion that a previous decision (its decision) was given per incuriam i.e. in ignorance of a statute or other binding authority, the Court is not bound by it.
(4) Where the previous decision was decided without jurisdiction.”
See also Usman v. Umaru (1992) 7 NWLR (Pt.252) 377. To which I most respectfully add that where the previous decision is distinguishable on the facts from the case at hand, the court of Appeal may refuse to follow the previous decision; and, also, if injustice may be done to any of the parties by following a previous decision, the court of Appeal, as a court of Justice, will refuse to follow the previous decision.
of course a departure from a previous decision is a serious matter and must be approached with circumspection in order to avoid shaking the bedrock of judge made Law called judicial precedent – see Adesokan and Others v. Adetunji and Others (1994) 5 NWLR (pt.344) 540 at 561 thus:
“As the Lords of Appeal in Ordinary in England put it in their Practice Statement – (Judicial Precedent) – (1966) 1 WLR 1234; (1966) 3 All ER 77.
“….. the use of precedent (is) an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their own affairs, as well as a basis for orderly development of legal rules…..”
What is binding as precedent is not the concrete decision in the former case – that is binding only between the parties to it – but the enunciation of the reason or principle upon which the question before the Court has been decided.”
In the Asol case (supra), the appellants were sloven and dilatory in pursuing the progress of the appeal resulting in the waste of over 120 mandatory days before they suddenly woke up in reaction to an application to have the appeal dismissed for want of prosecution to file an application for an extension of time to compile the record of appeal, while conversely, in the present matter, the applicants have shown diligence in pursuit of the progress of the appeal and, therein lies the distinguishing facts of Asol (supra) from the present matter.
Here, the applicants are saying if they are to wait for the Registrar of the court below to compile the record of appeal using the 60 days given him under the Rules of this Court within which to compile the record of appeal, the event they want their appeal to meet shall have elapsed and escaped the litigation on appeal, therefore they should be allowed to compile the record of appeal as a matter of urgency for it to be hear before the event in question – April 2011 polls – take place, Or applicants, prosecution of the appeal after the event in question would be likened to that of a person locking the stable after the horse has escaped.
I believe it is to cater for any exigency or urgency such as the one at stake that there is provision for departure from the Rules of this court which is a re-enactment of the previous provision of the Rules of this Court, differing only in renumbering and the new provision deleting the superfluous word “when” used in the former provision. Such provision has to be in the Rules of this court considering the notorious fact that records of appeal are oftentimes not prepared by some of the registrars of the court below within time and, where time is essential to the litigation, leaving preparation of the record of appeal to the registrar of the court below alone may cause the effluxion of time to render the appeal an empty shell of litigation or an academic exercise. That will be justice inverted: injustice indeed, as rightly submitted by learned senior counsel for applicants.
Based on the above double-barrel reasons, a little shift from Asol (supra) appears necessary, in my modest view; all the more so Asol (supra) appears to be a lone wolf (so to speak), whilst Lupex (supra) has a companion.
And, the companion of Lupex (supra) is Alhaia Adeniji and Another v. Dr. Onagoruwa and Another (1994) 6 NWLR (Pt.394) 225 where we held at 237 to 239 thus:
“It seems to me that the same can be said of an appellant who, anxious to have his appeal entered
urgently in the appeal court, takes advantage to any provision of the Law or Rules which enable him to do so ….. who applies to this court to order a departure from the rules in order for him to compile the record of appeal instead of the Registrar of the court below…..
Order 7 rule 2 (now order 19 rule 2) is the provision under which the appellants seek to have the responsibility of the Registrar of the court below of compiling and transmitting the record of appeal…. The rule read:
“The court may direct a departure from these Rules in any way when this is required in the interest of justice.”
But it can take a decision to facilitate the production or compilation of the record by directing a departure from the rules…. It can make an order as soon as an appeal has been filed and an application for an order directing a departure is brought…..
In the interest of justice and in response to exigency this court has power to make orders under Order 7, rule 2 (Order 19 rule 2) that will assist to accelerate the hearing of the appeal…”
The preliminary objection though carefully honey-combed and articulated, appears/ with maximum respects, to be on collision course with justice and is hereby overruled. This Court following Lupex (supra) and Alhaja Adeniji (supra) can entertain the application for departure from the Rules of the Court in the mode brought by learned senior counsel for applicants, in my view.
The compiled record of appear is attached to the motion paper as Exhibit A. order 8 rule 7 of the Rules of this court lists the contents of record of appeal to contain the following documents:
“(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.”
order 8 rule 9 of the same Rules stipulates for the record of appear to be certified by the registrar of the lower court.
As rightly observed by learned senior counsel for 2nd respondent and learned senior counsel for 3rd respondent, the record of appeal or bundle of documents in Exhibit A lacks preconditions (a), (b) and (d) of Order 8 rule 7 (supra). In respect of precondition (a) (supra), the Supreme Court held in the case of Agbana v. Owa and Others (2004) 5 SCNJ 195 at 204 that:
“An index is an alphabetical list at the back of a book, of names, subjects, etc. mentioned in it and the pages where they can be found in the con of Order 7 rule 7 (our Order 8 rule 7), an index is simply the table of contents of the Record of Proceedings. A Record of Proceeding cannot be declared a nullity merely because it does not provide for the expression, “index’, if for all intents and purposes, the Record contains the table of contents. If the parties and the court are not misled as to where to locate a particular process through the pages in the Record, a party cannot complain because there is no miscarriage of justice.” (my emphasis).
Precondition (b) (supra) on the introduction or preface of the particulars of the case, in brief, for the purpose of highlighting the kernel of the case and aid ease of its appreciation by the Court and the parties appears to me a desirable component of a record of appeal.
On the issue of certification, learned senior counsel for the 2nd respondent referred to section 111 of the Evidence Act on the requirements of certification to comprise evidence of the payment of legal fees for the record; certificate at the foot of the record or document that it is a certified copy of the original; that the record or document must be dated and subscribed by the officer issuing it with the name and title of his office and, where the officer uses a seal, the document must be sealed by him.
I have seen Exhibit’ A, the bundle of documents. Each of the 171 copies thereof is certified with the signature, date, and place of origin of the bundle of documents- the Federal High court, Ibadan. A cashier’s stamp signed and dated by the cashier of the court below also appears in page 171 of the bundle of documents. The responsibility under section 111 of the Evidence Act appears to me to be that of the appropriate court official issuing the documents and, in the even the neglected to comply with some of the statutory requirements, the person issued the document cannot, in my view, be penalized for the domestic lapses of the court below or the issuing authority – see our decision in Ndayako and Another v. Mohammed and Others (2006) 16 NWLR (pt.1009) 655 at 677.
At any rate, each copy of the bundle of documents’ Exhibit A’ was duly certified by the appropriate official that issued them as evidence of their authenticity, consequently there was, in my considered view, substantial compliance with section 111 of the Evidence Act in respect of the bundle of documents in Exhibit A – see Ndayako v. Mohammed (supra), and Daggash v. Bulama (2004) All FWLR (Pt.212) 1666 The other document missing in the bundle of documents in Exhibit A is the notice of appeal. The omission infringes Order 8 rule 7(d) of the Rules of this Court (supra). It is an important missing link. Because the record of appeal is the binding document for the appeal – see Omaghoni and Others v. Nigeria Airways and Others (2006) 18 NWLR (Pt.1011) 310 at 329 thus:
“Record of proceedings and the notice of appeal after compilation becomes the record of appeal. The Court of Appeal is bound by the record of Appeal.” (my emphasis).
The engine or hub of an appeal is the notice of appeal. As a functioning engine is essential to a motor – vehicle, so is a valid notice of appeal to an appeal – see First Bank of Nigeria Plc. V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt.1216) 247 at 287, where the Supreme Court held in the lead judgment of Adekeye, J.S.C., as follows:
“A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal…..”
The non-inclusion of the notice of appeal in the bundle of documents in Exhibit A has, in my considered view, rendered the bundle of documents incomplete record of appeal, consequently allowing the application would lead to letting in incomplete record of appeal for binding use in the substantive appeal which, with respects, will be wrong; all the more so 2nd and 3rd respondents did not consent to the use of incomplete record in the circumstances – see Fagbola v. Titilayo Plastic Industries Ltd. and Others (2005) 2 NWLR (Pt.909) 1 at 11 and Okochi and Others v. Animkwoi and, Others (2003) 18 NWLR (pt.851) 1 at 23.
A fundamdntal condition precedent for the exercise of the discretion to grant the application – the notice of appeal – having not been made part of the bundle of documents in Exhibit A, the jurisdiction of the court under Order 19 rule 2 of the Rules of this court cannot be exercised in favour of the applicant – see Madukolu v. Nkemdilim (1962) 2 All NLR 341.
For the above stated reasons and the fuller reasons given in the Ruling prepared and delivered by my learned brother, Fasanmi, J.C.A., I would refuse the application and abide by the consequential order contained therein.
Appearances
O. O. Akeredolu S.A.N. with him are M. F, Lana and S. S, AkinyeleFor Appellant
AND
O, Elekwa.
L. O. Fagbemi S.A.N; with Chief Bolaji Ayorinde S.A.N; K. Akinwunmi; H. O.
Afolabi; S. O. Ajayi; Sikiru Adewoye; W.A Olajide; L. L. Akanbi; Segun
Adesango; R, Isamotu; O. Ayandipo; y. Olarinde (Mrs.) and Tejumade Muideen.
Chief R. O. A Akinjide S.A.N with him A. G, of Oyo State; R. A, Ogunwole
Esq., H, F. Sule; D.P.P. Oyo State and Miss A. K AkinwunmiFor Respondent
