ENYINNAYA DICK v. OUR AND OIL COMPANY LIMITED(2018)

ENYINNAYA DICK v. OUR AND OIL COMPANY LIMITED

(2018) LCN/4615(SC)

In The Supreme Court of Nigeria

On Friday, the 20th day of April, 2018

SC.62/2009

RATIO

EFFECT OF THE FAILURE TO STATE ON THE MOTION PAPER THE ORDER AND RULE UNDER WHICH IT IS BROUGHT

In A.Y.A. & Sons Ltd v FHA Homes Ltd (2006) 2 NWLR (Pt.963) P. 139. A Court of Appeal decision, I said that: There is no hard and fast rule that the order and rule must be stated on the motion paper, although it is desirable that they be so stated. The Provisions of Order 3 Rule 3(i) of the Court of Appeal Rules (i.e. the Old Rules) are of mere desirability and not essentiality. That is to say, it should be regarded as a Procedure to be taken but failure to take it does not and ought not to render such non-compliance fatal. See Hall v C in Re Barker Estate (1879) 10 Ch.D P. 165- This reasoning is Premised on the fact that Courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in so doing, rules of Court must at all times be interpreted by the Judge to prevent undue adherence to technicalities.” PER OLABODE RHODES-VIVOUR, J.S.C.

CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH THE DISCRETIONARY EXERCISE OF A LOWER COURT

The position of the law is that an appellate Court would not interfere with the way a judge exercises his discretion unless: (a) The discretion was wrongly exercised. (b) The exercise of discretion was tainted with some illegality or substantial irregularity. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) p.143 Anyah V A.N.N. Ltd (1992) 6 NWLR (Pt. 247) p.319 Nzeribe v Dave Engineering Co. Ltd (1994) 8 NWLR (pt.361) p.124. Furthermore an appellate Court would only interfere with the exercise of discretion by a judge if it is in the interest of justice to do so. PER OLABODE RHODES-VIVOUR, J.S.C.

DUTY INCUMBENT UPON THE JUDGE WHERE THE RULES OF THE COURT ARE SILENT ON AN ISSUE

EFFECT OF CERTIFYING A PUBLIC DOCUMENT; WHAT IS A CERTIFIED COPY

The Evidence Act and the Court of Appeal Rules are clear that before a public document can he of any use in Court, it must be certified. That is to say, a public document must be certified. If it is not certified no probative value will be attached to it. So a public document must be certified. A certified copy is a copy of a document certified as true by the officer who has the custody of the original. Certified copies are deemed to be originals. A certified document is thus as authentic as the original and is admissible in evidence in place of the original. See Ndayako v Mohammed (2006) 17 NWLR (pt.1009) p.655, Orlu v Gogo-Abite (2010) 8 NWLR (Pt.1196) p.307, Nzekwu v Nzekwu (1989) 2 NWLR (pt.104) p.373, Onobruchere v Esegine (1986) 1 NWLR (Pt.19) p.799. PER OLABODE RHODES-VIVOUR, J.S.C.

WHEN IS A PUBLIC DOCUMENT DEEMED TO HAVE BEEN PROPERLY CERTIFIED

A public document is properly certified only after it is dated, subscribed by the public officer who has the custody of the document. In subscribing it, the public Officer must state his name, or and sign. His official title and stamp on the document must be visible for all to see. PER OLABODE RHODES-VIVOUR, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

ENYINNAYA DICK
(for himself and on behalf of Members of Umuokpa family by his Attorney, Dr. F.O. Adielauwa) Appellant(s)

AND

OUR AND OIL COMPANY LIMITED Respondent(s)

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): The appellant entered an appeal against the Ruling of the Court of Appeal (Port Harcourt Division) given on 19 February 2009 whereby the respondent’s application for:
(i) Leave for the appellant to compile and file supplementary record to this appeal consisting of the original notice and grounds of appeal which was omitted from the records of the lower Court transmitted to this Honourable Court.
(ii) Deeming as duly filed and served the supplementary record of appeal exhibited herewith and marked Exhibit A.
(iii) Leave for the appellant to file and argue four (4) additional grounds of appeal.
(iv) An order deeming the additional grounds of appeal exhibited to the affidavit in support of this motion as Exhibit B as duly filed and served, the appropriate filing fees having been paid.
(v) Leave for the appellant to file an amended appellant’s brief of argument.
was granted by the Court of Appeal. For clarity I must explain that at the trial Court the respondent was the plaintiff. He lost. At the Court of Appeal he was the appellant, while

the appellant was the respondent. He filed his Notice of appeal on 22 May, 2001 at the registry of the trial Court. The Record of Appeal was compiled and transmitted to the Court of Appeal, but surprisingly the Notice of Appeal was not in the Record of Appeal. That explains why the respondent brought his Notice of Motion in the Court of Appeal to file a supplementary or additional record of appeal which contains the Notice of appeal omitted or left out from the Record of Appeal already before the Court of Appeal. The respondent, as appellant won at the Court of Appeal. So he is the respondent in this Court. The concluding part of the Ruling reads:
In the final result, for all the reasons set out earlier, I answer the two questions I posed at the beginning of this ruling in the affirmative. The Court has the discretionary judicial power to grant the reliefs sought and that it is proper and even expedient to grant the application as prayed in the circumstances of the case. The application is granted in the following terms:-
(a) Leave is granted the applicant to compile and file a copy of the Notice of Appeal filed on 22 May, 2001 as

record of this appeal.
(b) That the copy of the said Notice of Appeal compiled and attached to the supportive affidavit in this application and marked as Exhibit A, is deemed duly filed as additional record of appeal.
(c) Leave is granted the applicant to amend the said Notice of Appeal by way of filing four (4) additional grounds of appeal.
(d) That the four (4) additional grounds of appeal attached to the affidavit in support of the application and marked as Exhibit B are deemed duly filed; and
(e) Leave is granted the applicant to file an amended appellants brief of argument within seven (7) days from today and serve same on the Respondent

This appeal is against the Ruling of the Court of Appeal which granted the orders above. Briefs were filed and exchanged by counsel. Learned counsel for the appellant V.N. Ugwu esq filed an appellant’s brief on 28 September 2009 but was deemed properly filed and served on 24 November 2009. On the other side, learned counsel for the respondent, Mr. C.A. Ajuyah SAN filed the respondent’s brief on 4 February, 2011, but was deemed duly filed and served

on 9 April 2013.

Learned counsel for the appellant formulated five issues for determination from his eight grounds of appeal. They are:
1. Whether prayers one and two on the motion Paper which the Court below granted are competent Prayers recognized by the Court of Appeal Rules, 2007.
2. Whether the Court below is right in granting the prayer deeming as duly filed and served the photocopy of the Notice of Appeal compiled as supplementary Record of Appeal when such copy was made from a public document which was not certified by the Registrar of the High Court of Abia State as required by Law.
3. Whether the Court below is right in granting leave to the applicant (now respondent) to amend its Notice of Appeal when such relief was not asked for by the applicant.
4. Whether in view or Order 6 Rule 15 and Order 17 Rule 3 Sub rule (1) of the Court of Appeal Rules, 2007. The lower Court is right in granting leave to file additional grounds of appeal after the appellant had filed and served its appellant’s brief on the respondent who had also filed and served his respondent’s brief.
5. Whether the Court below is right in its decision or

conclusion that no prejudice would be occasioned to the respondent by the grant of the application.

On his part, learned counsel for the respondent formulated two issues for determination:
1. Were the learned justices wrong in granting leave to the respondent to file supplementary record and to deem supplementary record as duly filed and served.
2. Whether in the circumstances of this case the learned justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellant’s brief of arguments.

After examining the issues formulated by both sides, it becomes clear that the respondent’s issue 1 covers the appellants’ issues 1 and 2. An issue becomes very wide when it asks the Court to take into consideration the circumstances of a case. With that in mind a diligent examination of the appellants’ issues 3, 4, and 5 are covered by the respondent’s issues 2. In addressing the respondent’s issues all the points raised in the appellants five issues would be considered in detail. I am satisfied that the two issues formulated by the respondent are more apt for

determining this appeal.

At the hearing of the appeal on 22 January 2018, Learned counsel for the appellant V.N. Ugwu esq., adopted the appellants’ brief filed on 28 September, 2009 but deemed duly filed and served on 24 November, 2009. He urged the Court to allow the appeal.

Mr. C.A. Ajuyah SAN, learned counsel for the respondent adopted the respondent’s brief filed on 4 February, 2011 but deemed properly filed and served on 9 April 2013. He urged the Court to dismiss the appeal.

ISSUE 1
Were the learned justices wrong in granting leave to the respondent to file supplementary record and to deem the supplementary record as duly filed and served

Learned counsel for the appellant submitted that there is no provision in the Court of Appeal Rules which requires the appellant or respondent to obtain leave before compiling and filing supplementary record of appeal. He observed that it is an abuse of process and incompetent for the applicant in the Court below to apply for such leave. Referring to Order 7 Rule 1, and Order 6 Rule 4, he observed both Orders under which the application was brought does not provide for

leave, contending that such an application is not recognized by the Rules of Court. He referred to Newswatch Communications Ltd v Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (Pt.993) P. 144.

He further observed that there is no provision in the Court of Appeal Rules requiring the “filing” or “deeming as duly filed” a supplementary record of appeal.

He submitted that the applicant’s prayer for leave to file and to deem as duly filed the supplementary record of appeal are unknown to the Court of Appeal rules and clearly incompetent.

Learned counsel for the appellant observed that the Court of Appeal deemed as properly filed and served an uncertified photocopy of the Notice of Appeal compiled as supplementary Record of Appeal, observing that there was non-compliance with Order 8 Rule 9 of the Court of Appeal Rules. He urged this Court to resolve this issue in the negative and refuse prayers one and two of the applicant’s motion on Notice in the Court of Appeal.

Learned counsel for the respondent observed that the appellant has not been able to fault the learned justices of the Court of Appeal in the exercise of their

discretion on the basis of undisputed facts and Sections 15, and 26 (a) of the Court of Appeal Act in granting leave to the respondent to file supplementary record of appeal and to deem same as duly filed and served.

He observed that the Notice of Appeal was in fact certified this complying with Order 8 Rule 9 of the Court of Appeal Rules. Reliance was placed on Sections 97 and 112 of the Evidence Act, Iheonu v Obiukwu (1994) 1 NWLR (Pt.322) p.594 Daily Times v F.R.A. Williams (1986) 4 NWLR (Pt.36) P.526.

He urged the Court to resolve the respondent’s first issue in the negative and dismiss the appellants’ appeal as it relates to the grant of prayers (i) and (11) of the motion by the lower Court.
Prayers (i) and (ii) of the Notice of Motion, heard and granted by the Court of Appeal reads as follows:
The respondent’s application was for:
(i) Leave for the appellant to compile and file supplementary record to this appeal consisting of the original notice and grounds of appeal which was omitted from the records of the lower Court transmitted to this Honourable Court.
(ii) Deeming as duly filed and served the supplementary

record of appeal exhibited herewith and marked Exhibit A.
Leave means permission. When a process has been filed and served on the adverse party, and the need arises thereafter to file an additional process to the already existing process, for the purposes of sanity and orderliness leave would be necessary otherwise the Court may be submerged in an avalanche of processes.
The application was brought under Order 7 Rule 1 and Order 6 Rule 4 of the Court of Appeal Rules. Order 6 Rule 4 provides for grounds outside Notice while Order 7 Rule 1 states that:
“Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
It is clear from the above that the application was brought under the wrong provisions of the Court of Appeal Rules. Would that be fatal to the application I do not think so.
In A.Y.A. & Sons Ltd v FHA Homes Ltd (2006) 2 NWLR (Pt.963) P. 139.
A Court of Appeal decision, I said that:
There is no hard and fast rule that the order and rule must be stated on the motion

paper, although it is desirable that they be so stated. The Provisions of Order 3 Rule 3(i) of the Court of Appeal Rules (i.e. the Old Rules) are of mere desirability and not essentiality. That is to say, it should be regarded as a Procedure to be taken but failure to take it does not and ought not to render such non-compliance fatal. See Hall v C in Re Barker Estate (1879) 10 Ch.D P. 165- This reasoning is Premised on the fact that Courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in so doing, rules of Court must at all times be interpreted by the Judge to prevent undue adherence to technicalities.”
The Court of Appeal was right when it said that:
” … The Rules of Court may not have provisions requiring the applicant to apply and obtain leave of Court to compile and file supplementary record of appeal or deeming as duly filed…”
So what did the Court of Appeal do Did it surrender and say since there is no provision in the Rules the application cannot be granted.
The Court examined the clear facts of the case, then said:

“It is clear from the counter affidavit as well as the address of the learned senior counsel for the respondent that he does not object to the filing of the Notice of Appeal as supplementary record of appeal since he did not controvert the facts deposed to in paragraph 5(i)-(v)) of the affidavit in support of the application which are to the effect that the said Notice of appeal was omitted from the record of appeal compiled and transmitted by the High Court to this Court. The omission of the Notice of appeal from the record of appeal is so fundamental to the appeal because it use the initiating process by which the jurisdiction of this Court was properly invoked over the appeal. That is why it was specifically mentioned in Order 8 Rule 7(d) of the Court of Appeal Rules, 2007 as one of the relevant documents which every record of appeal shall contain …”
The above shows that the Court of Appeal was satisfied that the record of appeal was incomplete since the notice of appeal was omitted from it. Having found the above to be the correct position the Court of Appeal then proceeded to say that:
“Once it is clear that the record of appeal is incomplete then it becomes

absolutely necessary for the omitted relevant parts of the record to be compiled and transmitted to the Court before the appeal can be heard by the Court Even where an appellant did not compile and transmit the initial record of appeal as in the present situation, no Rule of the Court stops or prevents him from transmitting the omitted part/s to this Court by way of an application such as the present one
Acting on the above reasoning and the provision of Sections 15 and 26(a) of the Court of Appeal Act the Court of Appeal found that prayers 1 and 2 in the motion paper were very much in order and proceeded to grant the respondent leave to compile and file supplementary record, and deeming as duly filed and served the supplementary record of appeal. The learned justices of the Court of Appeal exercised their discretion to grant the prayers. The position of the law is that an appellate Court would not interfere with the way a judge exercises his discretion unless:
(a) The discretion was wrongly exercised.
(b) The exercise of discretion was tainted with some illegality or substantial irregularity.

See University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) p.143 Anyah V A.N.N. Ltd (1992) 6 NWLR (Pt. 247) p.319 Nzeribe v Dave Engineering Co. Ltd (1994) 8 NWLR (pt.361) p.124
Furthermore an appellate Court would only interfere with the exercise of discretion by a judge if it is in the interest of justice to do so. The discretion was properly exercised. Before I bring the curtains down on issue 1, I must observe that inherent powers are powers that allows Courts to deal with diverse matters over which they have authority.
Where the requirement for leave to file supplementary Record of appeal is not provided by the Court of Appeal Rules or some other Rule of practice the Court has an inherent jurisdiction to grant leave in deserving cases bearing in mind that the judge is not a robot who refrains doing justice because there is no provision in Rules for the application before him or who rigidly follows arid legalism or technicalities to such a point that justice is not done to the parties. He is to do substantial justice between the parties and in doing so rules of Court must always be interpreted in such a way as to avoid unnecessary adherence to technicalities.

Once a Court rigidly follows the Rules justice may never be done to the parties. When Rules of Court are silent, a judge is not expected to say to himself, this cannot be done, since the Rules do not provide for it. If that were the case we will not get anywhere, and that would be bad and unfortunate for the Rule of Law.
Judges must at all times be prepared as jurists to dig into their deep knowledge of the law and come up with solutions to legal issues provided they never go against the clear intentions of the legislature. By granting this application which this Court affirms it is impossible to say that the Court of Appeal had acted upon any wrong principle, since it acted in the interest of justice.
A deeming order regularizes a process. The Court of Appeal was right to grant leave to the respondent to file supplementary record and to deem the supplementary record as duly filed and served.
Order 8 Rule 9 of the Court of Appeal Rules provide for certification of records. It states that:
“Every record or additional record of appeal compiled be a party to an appeal must be certified by the registrar of the lower Court.

Provided that is shall not be necessary for copies of individual documents to he separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.”
On whether the Notice of appeal attached to the supporting affidavit of the application was certified, the Court of Appeal said:
I have perused the Notice of Appeal in question and while agreeing with the learned senior counsel that it does not contain the certification required I would point out that he did not challenge the fact that original of the said Notice of Appeal containing all and every information as in the copy attached to the application was indeed fact and law, duly and properly filed by the applicant in the High Court as averred in paragraph 6 of the supporting affidavit. Since the contents and filing of the original Notice of Appeal from which the copy attached to the application was made are not disputed.
The Court of Appeal concluded that the Notice of Appeal was in order despite non-certification.
Learned counsel for the appellant observed that the Notice of Appeal is an

uncertified Photocopy of a Public document, contending that since it was not certified, it was wrong for the Court of Appeal to grant the applicant’s prayer for an order deeming the uncertified photocopy of the notice appeal as duly filed and served.
Reference was made to Order 8 Rule 9 of the Court of Appeal Rules. Sections 97(1)(e), 97(2)(c) and 112 of the Evidence Act.
Onobruchere v Esegine (1986) 1 NWLR (Pt.19) p.799
Aina v Jinadu (1992) 4 NWLR (Pt.233) p.91
IMB v Dabiri (1998) 1 NWLR (Pt.533) 284
Concluding, he submitted that only certified true copies of public documents are admissible. He urged the Court to resolve this issue in the negative.
Learned counsel for the respondent observed that the Notice of appeal was in fact certified. Reference was made to page 10 of Exhibit A. He submitted that Exhibit A, having been fully certified complied with Section 97 and 112 of the Evidence Act and requires no further certification. Reliance was placed on Iheonu v Obiukwu (1994) 1 NWLR (Pt.332) p.594, Daily Times v F.R.A. Williams (1986) 4 NWLR (Pt.36) p.526.
He urged the Court to resolve the issue in

favour of the respondent and dismiss the appeal.
It is not in dispute that a Notice of appeal is a public document. See Sections 97 and 112 of the Evidence Act. The Evidence Act and the Court of Appeal Rules are clear that before a public document can he of any use in Court, it must be certified. That is to say, a public document must be certified. If it is not certified no probative value will be attached to it. So a public document must be certified. A certified copy is a copy of a document certified as true by the officer who has the custody of the original. Certified copies are deemed to be originals. A certified document is thus as authentic as the original and is admissible in evidence in place of the original. See Ndayako v Mohammed (2006) 17 NWLR (pt.1009) p.655, Orlu v Gogo-Abite (2010) 8 NWLR (Pt.1196) p.307, Nzekwu v Nzekwu (1989) 2 NWLR (pt.104) p.373, Onobruchere v Esegine (1986) 1 NWLR (Pt.19) p.799.
The supplementary Record of Appeal contains the Notice of appeal which is on pages 8, 9 and 10. It must be examined to see if being a public document it was certified.
A public document is properly

certified only after it is dated, subscribed by the public officer who has the custody of the document. In subscribing it, the public Officer must state his name, or and sign. His official title and stamp on the document must be visible for all to see. Page 10 of the Record of appeal is the last page of the Notice of appeal. It is dated 18 December, 2001, subscribed by the Assistant Chief Registrar and signed by him. The stamp of the judiciary is affixed thereon. Exhibit A (the Notice of Appeal) is a certified photocopy of the Notice of appeal filed in this appeal. Endorsements on Exhibit A show that fees were duly paid. Certification was done by the Assistant Chief Registrar of the trial Court. The Court of Appeal is correct.

ISSUE 2
Whether in the circumstances of this case the learned justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellants brief of argument.

This issue covers prayers 3, 4 and 5 in the Motion on Notice which was granted by the Court of Appeal. The respondent prayed for:
(iii) Leave for the appellant to file and argue four (4)

additional grounds of appeal.
(iv) An order deeming the additional grounds of appeal exhibited to the affidavit in support of this motion as Exhibit B as duly filed and served the appropriate filing fees having been paid.
(v) Leave for the appellant to file an amended appellant’s brief of argument.
On prayer (iii) the Court of Appeal said:
“…the sincere object and substance of prayers 3 for leave to file and argue additional grounds of appeal is for leave to amend both the grounds of appeal and Notice of appeal already filed.
By Order 6 Rule 4 and 15 of the Rules of Court, the applicant is entitled to apply for and the Court has the jurisdiction and discretionary power to grant leave to amend the grounds as well as the notice of appeal at anytime
Prayer 3 of the application is therefore a competent Prayer.”

Learned counsel for the appellant observed that the applicant/respondent in its Notice of Motion before the Court of Appeal did not seek leave to amend its notice of appeal, but the Court granted the applicant leave to amend his Notice of appeal by way of filing four additional grounds of appeal.

He submitted that the Court of Appeal has no jurisdiction to grant a relief not sought by the applicant. Reliance was placed on Ekpenyong & 3 Ors v Nyong & 6 Ors (1975) 2 SC p.65, Veepee Industries Ltd v Cocoa Industries Ltd (2008) 13 NWLR (Pt.1105) p.486.

Concluding he submitted that since the respondent did not expressly ask for leave to amend its notice of appeal the Court of Appeal was wrong to grant what was not asked for. On relief (iv) learned counsel for the appellant observed that the Court was wrong to allow the appellant to file additional grounds of appeal after filing the appellant’s brief. Reliance was placed on Order 6 Rule 15 and Order 17 Rule 3(i) of the Court of Appeal Rules.

Finally he submitted that by the grant of the application the appellant has been prejudiced, in that prayers 1 and 2 were incompetent prayers granted by the Court. The Court had no jurisdiction to grant leave to the respondent to amend its Notice of Appeal, and the Court failed to consider vital points before concluding that no prejudice would be occasioned to the appellant by the grant of the application. He urged the Court to resolve the issue in the negative.

Learned counsel for the respondent observed that by granting the relief for leave to file and argue four (4) additional grounds of appeal, the order to amend the notice of appeal to incorporate the four additional grounds becomes incidental and consequential orders which the Court has powers to make.
Reliance was placed on Order 18 Rule 11(i) of the Court of Appeal Rules. Ekpenyong v Nyong 1975 2 SC p.65

He observed that Order 17 Rule 3(i) does not contain time bar for the seeking of leave to amend or file additional grounds of appeal.

He submitted that the grant of leave to the respondent to file additional grounds of appeal did not violate or breach Order 17 Rule 3 or any provision of the Court of Appeal Rules.

Finally, learned counsel for the respondent observed that the appellant did not show any prejudice to warrant the refusal of the prayers sought in the application by the Court of Appeal. He urged the Court to dismiss the appeal in it’s entirety.

The Court of Appeal had this to say on prayers 3, 4 and 5 on the Motion paper.
The Court has the discretionary judicial power to

grant the reliefs sought and that it is proper and even prudent to grant the application as prayed in the circumstances of the case.”
And with the above reasoning, the Court of Appeal ruled as follows:
Leave is granted the applicant to amend the said notice of appeal by way of filing four (4) additional grounds of appeal.
Can this be correct
Order 6 Rule 4 states that:
“The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.”
And Rule 15 of Order 6 states that:
“A notice of appeal may be amended by or with the leave of the Court at any time.”
It is long settled that where words in a statute are clear and free from ambiguity they should be given their ordinary meaning without embellishments. See Mobil v F.B.I.R. (1977) 3 SC p. 53 Toriola v Williams (1982) 7SC p.27
The clear interpretation of the above is that a judge

has discretion to grant amendment to a notice of appeal on an application seeking that relief.
An amendment to a process, pleading etc is not limited to correcting errors. It also includes changing the contents of the document, and this can be done by adding to what is already in the document.
The notice of appeal has seven (7) grounds of appeal. Prayer (iii) seeks leave to file four (4) additional grounds of appeal. The grant of prayer (iii) is in effect an amendment to the Notice of appeal since leave for the appellant to file and argue four (4) additional grounds of appeal once granted, the grounds of appeal are no longer seven, but eleven. That is an amendment without even asking for it.
I am satisfied in the circumstances of this case that the order to amend the notice of appeal to incorporate four additional grounds is in fact incidental and consequential orders which the Court of Appeal has power to make as such orders are within its discretion and for the quick disposal of appeals.
Once prayer (iii) is granted, naturally a deeming order should follow if amendment to the document had been effected and exhibited and property filed in Court as a separate process.

After amendments are granted the need usually arises for the appellant to amend his brief to address new issues the appellant may want to argue, which arise from the new grounds of appeal. The respondent would have every right thereafter to make amendments to the respondent’s brief if that is his desire.
Once the Record of Appeal is incomplete a supplementary Record of Appeal must be filed to bring before the Court process/s omitted or left out from the Record of Appeal. The Notice of appeal was not in the Record of appeal compiled and transmitted by the High Court to the Court of Appeal. This is a fundamental omission that goes to the jurisdiction of the Court of Appeal hear the appeal. Without the Notice of Appeal in the Record of Appeal, the Court of Appeal would have no jurisdiction to hear the respondent’s appeal, and the omission of the Notice of Appeal from the Record of Appeal was not the respondent’s fault but a blunder by the Registry of the trial Court. Surely the respondent should not be punished for lapses in the Registry of the Court.

Rules of the Court of Appeal are put in place for the smooth disposal of appeals. Judges are to have or ensure they have all relevant processes before them and if they do not have them, give leave to bring those processes before them rather than gave judgment in ignorance of facts which ought to have been known before rights are definitively decided. After reading the briefs in detail, I am satisfied that the appellant had by the grant of this application not suffered any mischief, irreparable or at all or that the grant of the application (which is correct) would have been prejudicial to him.

It is for all that I have been saying that I dismiss this appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and to register the support in the reasoning from which the decision was made, I shall proffer some remarks.

The appellant commenced this action at the High Court of Abia State, Aba Division claiming against the respondent in trespass, damages in special and general forms. After exchange of pleading, the parties fielded

their witnesses at the end of which counsel for the parties delivered written addresses and thereafter the learned trial judge delivered the judgment on 17/5/2001 granting in full, the general damages of N9,995,980.00 claimed and dismissed the claim for special damages.

The respondent being dissatisfied with the judgment appealed to the Court of Appeal or Court below or lower Court. Before the appeal could be heard counsel for the respondent brought an application before the Court below for leave to file supplementary record consisting of a certified true copy of the Notice of Appeal and grounds of appeal which were omitted from the record, additional grounds of appeal and to amend the appellant’s brief of argument. After hearing from counsel on either side the Court of Appeal granted the orders as prayed on 19/2/2009.

Appellant being dissatisfied with the Ruling has appealed to this Court on eight grounds.

On the 22nd January, 2018 date of hearing, learned counsel for the appellant, V. N. Ugwu Esq., adopted the appellant’s brief of argument filed on 28/9/09 and deemed filed on 24/11/09.

He distilled four issues for determination, thus:
1. Whether prayers one and two on the motion paper which the Court below granted are competent prayers recognized by the Court of Appeal Rules, 2007
2. Whether the Court below is right in granting the prayer deeming as duly filed and served the photocopy of the Notice of Appeal compiled as supplementary Record of appeal when such copy was made from a public document which was not certified by the Registrar of the High Court of Abia State as required by law
3. Whether the Court below is right in granting leave to the applicant (now respondent) to amend its Notice of Appeal when such relief was not asked for the applicant
4. Whether in view of Order 6 Rule 15 and Order 17 Rule 3 Sub-Rule (1) of the Court of Appeal Rules, 2007, the lower Court is right in granting leave to file additional grounds of appeal AFTER the appellant had filed and served its appellant’s brief on the respondent who had also filed and served his respondent’s brief.
5. Whether the Court below is right in its decision or conclusion that “no prejudice would be occasioned to the respondent by the grant of the application

A Ajuyah SAN for the respondent adopted the brief of argument of the respondent filed on 4/2/2011 and deemed filed on 9/4/2013. In it are distilled the following issues for determination, viz:
1. Whether the learned justices were wrong in granting leave to the respondent to file Supplementary Record and to deem the supplementary record as duly filed and served
2. Whether in the circumstances of this case, the learned Justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellant’s brief of argumentThe issues as crafted by the respondent are sufficient since the issues of the appellant are well encapsulated therein and so I shall make use of the respondent’s questions as formulated.ISSUES 1 & 2
Were the learned justices wrong in granting leave to the respondent to file the Supplementary Record and to deem the supplementary record as duly filed and served.
Whether in the circumstances of this case, the learned Justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellants brief of

argument.

Learned counsel for the appellant submitted that there is no provision in the Court of Appeal Rules, 2007 requiring any party (particularly an appellant) to seek and obtain the leave of the Court below to compile and file supplementary record of appeal as it is an abuse of Court process and incompetent for the applicant in the Court below (now respondent) to apply for such leave. That there is absolutely nothing in Order 7 Rule 1 and Order 6 Rule 4 of the Court of Appeal Rules, 2007 under which the motion was brought which stipulates that leave of the Court below is required to compile and file supplementary record of appeal. He cited Newswatch Communications Ltd v Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144 at 179; State Independent Electoral Commission, Ekiti State v National Conscience Party (2008) 12 NWLR (Pt.1102) 720 at 751 – 752, Mobil Producing Nigeria Unlimited & Anor. v Chief Simeon Monokpo & Anor. (2003) 18 NWLR (Pt. 852) 346 at 433; Saraki v Kotoye (1992) 7 NWLR (Pt. 264) 156.

That the Court below was wrong to read into Order 8 of the Court of Appeal Rules what was provided therein.

Also contended by the appellant is that Order 8 Rule 9 of the Court of Appeal Rules and the relevant Evidence Act the use of uncertified Public document such as the Notice of Appeal is prohibited for use in a Court of law as done in the case at hand. He cited Sections 109 (a) (iii), 97 (D) (e), 97(2) (c) and 112 of the Evidence Act and numerous judicial authorities.

That it is immaterial that there was no objection from the other side. The case of Obadina Family & Anor. v Ambrose Family & Ors (1969) 1 NMLR 24 at 30 31 etc.

That the prohibition against the use of an uncertified public document by the Court is a statutory one which admits of no waiver under Order 19 Rule 3(1) of the Court of Appeal Rules, 2007.

For the appellant submitted that the leave granted the applicant to amend the said Notice of Appeal by way of filing four additional grounds of appeal was made without jurisdiction as the applicant did not seek such a relief. He cited Etim Ekpenyong & 5 Ors v Inyang Efiong Nyong & 6 Ors (1975) 2 SC Reprint) 65.

That prejudice was occasioned to the appellant by the grant of the application and this Court

should set things right.

Responding, learned Senior Counsel, C. A. Ajuyah submitted that the Court below rightly found that the record of appeal was incomplete and there was need for the gap to be filled and this without the appellant controverting the fact before the grant. That the appellant cited judicial authorities out of con. He stated that Exhibit A, the supplementary record is not a photocopy as asserted by the appellant but a certified true copy with the seal of the trial Court and so there was compliance with Sections 97 and 112 of the Evidence Act and there was no need for further certification. He cited Iheonu v Obiukwu (1994) 1 NWLR (Pt.322) 594, Daily Times v FRA Williams (1986) 4 NWLR (Pt. 36) 526; I.M.B. v Dabfri (1998) 1 NWLR (Pt. 533) 284 at 298.

Mr. Ajuyah SAN said the Court below did not grant prayers not asked for as in granting the Order as prayed, the Order to amend the notice of appeal to incorporate the four additional grounds become incidental and consequential orders which the Court has powers to make. He cited Order 18 Rule 11 (1) of the Court of Appeal Rules, 2007.

The two contending positions are, on the part of the appellant that the Ruling of the Court below stemmed from grave errors strewn with injustice and should not be allowed to stand therefore warranting this Court to interfere.
The stand of the respondent on the other hand being that the Court below exercised its discretion properly in granting the application and there is nothing to base an interference from this Court.
The background facts are that the appellant initiated the action at the High Court of Abia State, Aba Division claiming against the respondent in trespass, damages in special and general forms. After exchange of pleadings, fielding of witnesses and at the close of evidence and addresses of parties the learned trial judge delivered judgment, granting in full the general damages of N9,995,980.00 claimed and dismissed the claim in special damages. The herein respondent being dissatisfied appealed to the Court of Appeal and discovered along the way that the trial Court registry had omitted the notice and grounds of appeal from the record compiled and transmitted to the Court of Appeal, meanwhile the parties had filed and exchanged their briefs of argument. Before the Appeal could be heard,

counsel for the respondent brought an application for leave to file a supplementary record consisting of certified true copy of the omitted notice and grounds of appeal and to amend the appellant’s brief of argument. The Court of Appeal granted the application on 19th February, 2009, which is the fulcrum of the grouse of the appellant.
The Court below had considered the supporting and counter affidavit and had held in the following words as follows:
It is clear from the counter affidavit as well as the address of the learned senior counsel for the respondent that he does not object to the filing of the notice of appeal as supplementary record of appeal since he did not controvert the facts deposed to in paragraph 5(i) (vi) of the affidavit in support of the application which are to be the effect that the said Notice of Appeal was omitted from the record of appeal compiled and transmitted by the High Court to this Court. The omission of the notice of appeal from the record of the appeal is so fundamental to the appeal because it is the initiating process by which the jurisdiction of this Court was properly invoked over the appeal.

That is why it was specifically mentioned in Order 8 Rule 7 (d) of the Court of Appeal Rules, 2007 as one of the relevant documents which “Every record of appeal shall contain
It is indisputable that the omission of the Notice of Appeal from the record of appeal renders the record incomplete because the Court cannot determine the appeal without the grounds upon which the appeal was premised and brought.”
The learned justices of the Court below further stated thus:
“Once it is clear that the record of appeal is incomplete then it becomes absolutely necessary for the omitted relevant part/s of the record to be compiled and transmitted to the Court before the appeal can be heard by the Court. The compilation and transmission of such omitted part/s of the record of appeal can be undertaken either by the High Court where the incomplete record was compiled and transmitted by it in the first place or as may be directed by the Court. Similarly an appellant who compiled and transmitted record of appeal under Order 8, Rule 4 of the Court of Appeal Rules, 2007 can undertake to bring the omitted

parts of the record if it turned out the record transmitted by him are incomplete. Even where an appellant did not compile and transmit the Initial record of appeal as in the present situation, no Rule of the Court stops or prevents him from transmitting the omitted part/s to this Court by way of an application such as the present one.
By the provisions of Section 26(a) of the Court of Appeal Act, 2004 the Court has the power to order the production of the Notice of Appeal since it is necessary and in the interest of justice to do so. The section provides as follows:
“26. in the exercise of its jurisdiction, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice.
(a) Order the production of any document, exhibit, or other thing connected with proceedings, the production of which appears to it necessary for the determination of the case.”
In addition, under Section 15 of the same Court of Appeal Act, the Court has the discretionary power to, from time to time make any order necessary for determining the real question in controversy in an appeal and may amend any defect or error in the record of appeal, the omission of the notice of appeal

in the record of appeal, is not only a defect or error, but very vital and serious and serious defect or error in the record of appeal. This Court can property amend the defect or error in the record by directing or allowing the transmission of the omitted part/s of the record of appeal.
There can be no serious dispute about this.” (underlining mine)
I shall recast Sections 15 and 26 (a) of the Court of Appeal Act thus:
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first

instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to re-hear by a Court of competent jurisdiction.
Section 26 (a): In the exercise of its jurisdiction, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice.
a) order the production of any document, exhibit, or other thing connected with proceedings, the production of which appears to it necessary for the determination of the case.”
From the later part of the decision of the Court below, it is clear that the Ruling was made advisedly having considered the facts before it and conceptualized those facts with decided cases of both the Court of Appeal and Supreme Court and stated as follows:
The Notice of Appeal is an essential, vital and crucial part of the record of appeal to be compiled and

transmitted by the High Court to the Court for the purposes of proper hearing and determination of the appeal. It is now settled position of the law that it is wrong for the Court to base its decision on incomplete record of appeal. In addition to the case of; Okochi v Animkwoi (2003) 2 – 3 SC 65 at 72 – 3 and Nwana v FCDA (2007) 11 NWLR (1044) 59 cited by learned counsel for the appellant in his address. See also the earlier authorities or Panalpina World Transport v Wariboko (1975) SC 20, Udeze v Chidebe (1990) 1 NWLR (125) 14; Oparaji v Ohanu (1999) 9 NWLR (pt.618) 290 on the point.
What has come to the fore is that the appellant has cited some earlier judicial authorities out of con or not in tune with the facts on ground and re-engineered along the way some of those facts to get them as much as appellant could attempt to fall in line with earlier decisions of this Court so as to get an advantage over the respondent and thereby persuade that Court below to tow his line of thinking which attempt remained so as it failed. A similar situation had confronted this Court in Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 109) 250 at 265 – 266 and Oputa JSC

stated the position of things thus:
…..There is now a tendency among our lawyers and sometimes some of our judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those Pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case.
Pronouncements of our Justices whether they are ratio decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper con, for without known facts, it is impossible to know the law on those facts.”
Following on the trait of the guides laid out already by this Court, one has no difficulty in positing humbly that a case is decided on the facts presented to the Court and a decision is never made in vacuo or in a vacuum. Therefore the ratio in one case may not be applicable in another case in

instances where the facts present differently. The principle in a given case can only apply to another where the cases are similar. See Idoniboye – Obu v NNPC (2003) 1 SC (pt. 40) 40 at 70.
Getting back on track, I am of the same view as the respondent that Exhibit A having been duly certified, complied with Section 97 and 112 of the Evidence Act, requires no further certification and that the provisions of Order 8 Rule 9 of the Court of Appeal Rules 2007 were met. For effect, I shall cite the said provisions thus:
Order 8 Rule 9:
Every record or additional record of appeal compiled by a party to an appeal must be certified by the registrar of the lower Court.
Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.”
I call in aid the following cases, thus: Iheonu v Obiukwu (1994) 1 NWLR (Pt.322) 594, Daily Times v FRA Williams (1986) 4 NWLR (Pt.36) 526; I. M. B. v Dabiri (1998) 1 NWLR (Pt.533) 284 at 298.

Having granted the respondent leave to amend it’s notice and grounds of appeal, the order allowing the filing of additional grounds of appeal and an amended appellant’s brief were orders falling squarely within the discretionary powers of the Court of Appeal. That exercise discretion of the Court below having been done judicially and judiciously being consequential orders cannot be faulted. This is so since the appellant has not shown that the Court;
(a) failed to give proper consideration to the matters or
(b) has taken into account irrelevant matters or
(c) disregarded well recognized and well established principles of law. This Court cannot interfere since those conditions above stated are not at pray herein.
See; Enekebe v Enekebe & Anor. (1964) ALL NLR 95; Biocon Agrochemicals (Nig) Ltd v Kudu Holdings Ltd (2000) 18 NWLR (Pt. 691) 493 at 506 – 507; Order 18 Rule 11 (1) of the Court of Appeal Rules 2007; Etim Ekpenyong & 3 Ors v Inyang Effiong Nyong & 6 Ors (1975) 2 SC 65.

From the foregoing and the better articulated lead judgment, I too see no merit in this appeal and I dismiss it.
I abide by consequential orders made.

JOHN INYANG OKORO, J.S.C.: I was obliged in advance a copy of the Judgment of my learned brother, Olabode Rhodes-Vivour, JSC just delivered. Without much ado, I state clearly that I am in total agreement with the reasons advanced and the conclusion that there is no merit in this appeal, and it deserves an order of dismissal.

Although an appeal is a rehearing of the matter, the law is settled that all material facts, evidence or documents tendered in the proceedings at the High Court and all relevant materials necessary to the determination between the parties on appeal, should, as a matter of necessity, be transmitted to the appellate Court. Where there is a failure by the Registrar of the lower Court to compile and transmit record of appeal to this Court, and appellant is well endowed to do so. Should there be any material which has been left out of the record, any party is at liberty to file what is called supplementary record of appeal. This is to bring all materials relevant to the determination of the appeal before the Court, else, the Court will not be properly seized of the matter. See Olorunyolemi & Anor v. Akhagbe (2010) 8 NWLR (pt.1195) 43.

An appellant is bound by the record of appeal and cannot go outside the record and canvass to an appellate Court what he thinks is in favour of his case, which is not in the record. Thus, it behoves an appellant to do everything legally permissible to bring all materials before the Court. See Magaji v. Nigerian Army (2008) 8 NWLR (pt. 1089) 338.
In the instant appeal, the respondent (as appellant in the Court below) had applied to the Court of appeal for leave to compile and file supplementary record of appeal consisting of the original notice and grounds of appeal which was omitted from the records of the trial Court transmitted to the Court below amongst other reliefs. Quite a harmless application. The appellant herein opposed that application, the Court below rightly granted the application. The appellant has come before us to set aside that exercise of discretion by the Court below.
The law is trite that judicial discretion must be exercised judicially and judiciously. That is to say, it must be exercised in accordance with common sense and according to justice. Where there is evidence of miscarriage of justice, an

appellate Court is in good position to review same. In order to succeed in an appeal against such exercise of discretion, the appellant must satisfy the appellate Court that the lower Court acted on an entirely wrong principle or failed to take all the circumstances into consideration and that the order would work injustice against him. See Okeke v. Drub (1999) 4 SC (pt.11) 37, Odusote v. Odusote (1971) NWLR, 221, Echaka Cattle Ranch Ltd v. Nigerian Agricultural And Co-operative Bank Ltd (1998) 4 NWLR (pt.547) 526.
In the instant appeal, the appellant has failed woefully to show how the exercise of discretion by the Court below to grant the application for the Respondent to file supplementary record of appeal would affect him negatively. I agree with the Court below that the application has merit and was therefore properly granted in the interest of justice.

Based on the above and the fuller reasons adumbrated in the lead judgment, I agree that this appeal is devoid of merit. It is hereby dismissed by me.

Appeal dismissed.

AMIRU SANUSI, J.S.C.: I have had the advantage of

reading earlier than now, the judgment just delivered by my learned brother Rhodes-Vivour, JSC. I am in entire agreement with the reasoning and conclusion of my noble Lord that this appeal is meritless and deserves to be dismissed.

The falcrum of this appeal is on the grant of leave by the lower Court to the respondent to file supplementary record. The common ground between the parties is that the Notice of appeal was conspicuously absent in the record transmitted to the Court. As it was filed at the lower Court, without the Notice of appeal, the record can be said to be incomplete. To my mind therefore, the justice of the matter is for the lower Court to grant the leave to the applicant before it to bring forward the missing or omitted document. To refuse to grant such prayer by the lower Court, would in my view amount to over-reaching consequences on him, as it would tantamount to denying him the opportunity to ventilate his case when prosecuting the appeal. That, will in effect amount to irreparable and far reaching consequences.

It is also my view, that even by not hinging his application before the lower Court on any Rule of that Court, the lower

Court, which is a Court of justice could use its discretion to grant the application without any ado, as that only, will meet the justice of the case, Courts should always be pre-occupied in doing substantial justice and not to cling on mere technicalities. The lower Court deserves being commended for doing justice rather than being carried away by mere technicalities.

Thus, in the result and with these few remarks, I am in entire agreement with the reasoning and conclusion arrived at in the lead judgment that the appeal is very pettish and should be out-rightly dismissed for being devoid of any merit and want of substance. Appeal is also dismissed by me.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me.

Appearances:

V.N. UGWU For Appellant(s)

C.A. AJUYAH SAN with him, N.Ntididem For Respondent(s)

Appearances

V.N. UGWU For Appellant

AND

C.A. AJUYAH SAN with him, N.Ntididem For Respondent

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