FEDERAL REPUBLIC OF NIGERIA v. FRANK AMAH & ORS
(2014)LCN/7110(CA)
RATIO
REQUIREMENTS TO BE SATISFIED BY A PARTY INTENDING TO CHALLENGE THE CORRECTNESS OF A RECORD OF PROCEEDING
It is trite that when a party intends to challenge the correctness of the record of proceeding the normal procedure is for that party to swear to an affidavit challenging the said record of proceedings. It is also his duty to set out the facts or part of the proceeding which is wrongly stated in the records or what happened during the proceedings, which is missing or excluded from, the proceedings in the trial court. See MOKWE v. WILLIAMS (1997) 11 NWLR (Pt. 528) 309 and AGBEOTU v. BRISIBE (2005) ALL FWLR (Pt. 257) 1454. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION MUST BE TIED TO AN ACT OR OMISSION INCONSISTENT WITH THE LAW
Preliminary objection is not meant to be raised for the fun of it but must be tied to an act or omission inconsistent with the law, whether substantive or procedural, and if upheld would render further proceedings before the court impossible or unnecessary. See AKPAN v. BOB & ORS (2010) 17 NWLR (Pt. 1223) 421; THE TRUSTEES OF THE NIGERIA RAILWAY CORPORATTON PENSION FUND v. AINA. (1970) ALL NLR 283; ODUNUKWE v. OFOMATA (2010) 18 NWLR (Pt. 1225) 404 and NDIGWE v. NWUDE (1999) 11 NWLR (Pt. 626) 314. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling): The appellant filed a motion on notice dated the 26th April, 2013 wherein it prayed for the following orders:-
(1) An order of this Honourable court granting leave to the Appellant/Applicant to compile and file a supplementary Record of Appeal.
(2) An order deeming the Appellant’s supplementary Record of Appeal already filed as properly filed and served.
(3) And for such further order or orders as this honourable court may deem fit to make in the circumstance.
The grounds for the application are as follows:-
(a) That the Registrar of the lower court has initially compiled and transmitted the Record of Appeal in line with the Rules of this honourable court.
(b) That upon studying the Record of Appeal, the Appellant/Applicant discovered that there were errors in the recording of the proceedings of the trial court dated 15th day of May 2008.
(c) That the Appellant/Respondent (sic) deposed to an affidavit to correct the said record of Appeal.
(d) That there is therefore need to compile and transmit a supplementary Record of Appeal to enable all the Records of the lower court to be before this Honourable court and for a just determination of this appeal.
The application is supported by a 6 paragraph affidavit sworn to by one Owodunni Oluwatoyin A., a legal officer with the EFCC.
Attached to the affidavit as Exhibit ‘A’ is the said supplementary record.
In opposing the application, the Respondents filed an 18 paragraph counter affidavit and attached three documents marked Exhibits A, B and C. respectively. They are:- a 14 paragraph counter affidavit dated 26-3-2013; a notice of preliminary objection also dated and filed on 26-3-2013 and the record of proceedings in the lower court held on 15-5-2008.
The Appellant also filed a further affidavit of 9 paragraphs.
Written addresses were subsequently ordered by this court. The appellant’s written address in support of the application is dated 4-12-2013 and filed on 5-12-2013 while its reply on points of law is dated and filed on 23-12-2013.
The Respondent’s written address is dated and filed on 13-12-2013. At the hearing of the application on 21-1-2014, parties duly adopted and relied on their respective written addresses.
For the Appellant/Applicant, the sole issue for determination is:-
“whether the Appellant has complied with the procedure for challenging record of appeal.
Herein, it was submitted by learned counsel for the appellant that the procedure for challenging the Record of Appeal as laid down by case law is that a party who wishes to challenge the accuracy of the Record of proceedings should swear to an affidavit to that effect and set out the facts or parts of the proceedings omitted or wrongly stated. The affidavit must thereafter be served on the trial judge or the Registrar of court and if the trial judge or Registrar wishes to contest the affidavit, he must swear to and file a counter affidavit.
He referred to and relied on the following authorities:- AKWA v. C.O.P (2003) 4 NWLR (Pt. 811) 461 at 492; EHIKOYA v. C.O.P. (1922) 4 NWLR (Pt. 233) 57 at 70; WAZIRI v. STATE (1997) 3 NWLR (Pt. 496) 689 at 723 and SOMMER v. F.H.A. (1992) NWLR (Pt. 219) 548 at 558. Where the Supreme Court held that a party seeking to challenge the record of the court has to file an affidavit to that effect.
He added that the appellant has satisfied the requirement by filing an affidavit dated 22-3-2013 at the trial court and for which leave of this court is now being sought to compile it as a supplementary record so that this court can look at it when considering the appeal. He then urged this court to grant the application.
In their own written address, the Respondents started with a preliminary objection to the effect that this application demonstrates the Appellant’s failure to appreciate that in a no case submission, the court is not concerned with the credibility of witnesses or evaluation of evidence which could only arise after a full trial.
He added that this appeal is against the decision of the lower court on a No case submission made on behalf of the Respondents. He referred to grounds 1 to 5 in the Notice of Appeal and the arguments in the Appellants brief which according to him, conflicts with the basis for a No case submission wherein the issue of evaluation of evidence or credibility of witnesses does not arise and cited ADEYEMI v. THE STATE (1991) 6 NWLR (Pt. 195) 35.
Learned counsel further referred to Ground 5 of the Notice of Appeal which dwells on the alleged erroneous transcription of the evidence of PW5 and the failure of the lower court to consider the whole evidence so adduced which he contends, is of no consequence in a No case submission and thus renders ground 5 incompetent as well as the argument based on it.
Counsel also referred to the decision of the lower court on the evidence of PW5 which it discountenanced for being at variance with the documentary evidence (Exhibits P1 and P25) and posited that there was no appeal against the said decision which makes it binding and conclusive. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt. 552) 1 at 24; DABUP v. KOLO (1993) 9 NWLR (Pt. 317) 254 at 259 and ASIYANBI v. ADENIJI (1967) ALL NLR (2nd Ed) 88.
He concluded by contending that since the Appellant did not appeal against those findings of the lower court it cannot be heard to complain about those pieces of evidence upon which the lower court based its decision.
Dwelling on the substantive application the Respondents raised the issue for determination as:-
“Whether in all the circumstances the Application by the Appellant/Applicant is grantable”.
Herein learned counsel submitted that the application is not grantable because the facts of the case does not support it, having been based on falsehood, because the appellant relied on alleged uncertified Certificate of Occupancy and unsworn statement of PW5 to contend that the correct name of PW5 is Alhaji Sharu Jibo (not sheriff) and that the proper address of the property in question is reflected in the Certificate of Occupancy, when in fact the two documents were not tendered in evidence by PW5 or any other witness.
He added that the record of proceedings at the lower court show that the PW5 stated five times in his evidence in chief that the address of his property is at “Sabongiwa near French Road” and this is so even when the prosecuting counsel asked the PW5 to read the contents of Exhibits P1 and P5.
It was his further submission that there is no supplementary Record of Appeal before this court except for the Affidavit contained therein which is not enough and besides, contains what the deponent was told had transpired five years before he deposed to the said affidavit.
Besides, he argues, No record was amended and no leave of court was sought to amend the existing record of appeal given the fact that a prayer to compile and transmit supplementary Record of appeal does not constitute a prayer to amend the Record of Appeal. He cited the case of GARUBA v. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 at 180.
He added that the affidavit sought to be transmitted as the supplementary Record of Appeal is not only baseless, but does not constitute a record of appeal and no leave was sought to amend the record. He then urged this court to dismiss the application.
The appellant’s written reply on points of law covers the preliminary objection, learned counsel for the appellant submitted that what the learned trial judge did in respect of the testimony of PW5 was to evaluate his evidence as shown at page 1012, (lines 24 to 30), page 1014 lines 30-34 and page 1015 lines 1 to 12.
He therefore submitted that the trial court extensively evaluated the testimony of pw5 before arriving at the decision or determination that the address given by pw5 in his oral testimony was at variance with Exhibits P1 and P25. Learned counsel added that the basis for the five grounds of Appeal was that it was a transcription error on the part of the officials of the court who transcribed the proceedings wherein they wrote “Sabongiwa”, instead of “Sanigiwa” and this error led the lower court to hold that the oral evidence of pw5 was at variance with Exhibits P1 and P25 and this forms the basis for the appeal. He then urged the court to overrule the preliminary objection.
Coming to the appellant’s reply on points of law on the main application, I find that it went beyond and outside the scope of a reply on points of law in a written address. Though quite a scholarly presentation but it is nothing more than an attempt to reargue on the appellants application, and if allowed will give room to granting them an opportunity to have a second bite at the cherry to the detriment and disadvantage of the Respondent. I am therefore compelled to discountenance that arm of the appellants written address in reply to that of the Respondent.
Now on the preliminary objection as raised by the Respondents, I see it as nothing but a case of leaving the substance and chasing the shadow. Track seem to have been lost by the respondents on the content of the application as it relates to the reliefs sought by the appellant which are for leave to compile and transmit supplementary record of appeal and to deem same as properly filed and served.
The Respondents on the other hand veered tangentially into challenging the application by way of preliminary objection on the grounds that the appellant, failed to appreciate that in a no case submission, the court is not concerned with the credibility of witnesses or evaluation of evidence which could arise after a full trial, and that the ground 5 of the Notice of appeal relates to failure of the lower court to evaluate the evidence adduced by PW5 as a whole. Secondly, that there is no appeal against the decision of the lower court wherein it discountenanced the addresses in Exhibit P1 and P25 and also holding that the oral evidence is at variance with the documentary evidence.
To my mind, the objection raised in the respondent’s written address lacks substance and totally out of tune with the application under consideration. It must be made clear that the objection has nothing to do with the competence of the Notice of appeal or the right of the appellant to appeal against the Ruling of the lower court, but challenges the competence of this application by bringing in principles guiding a submission of No case to answer.
Preliminary objection is not meant to be raised for the fun of it but must be tied to an act or omission inconsistent with the law, whether substantive or procedural, and if upheld would render further proceedings before the court impossible or unnecessary. See AKPAN v. BOB & ORS (2010) 17 NWLR (Pt. 1223) 421; THE TRUSTEES OF THE NIGERIA RAILWAY CORPORATTON PENSION FUND v. AINA. (1970) ALL NLR 283; ODUNUKWE v. OFOMATA (2010) 18 NWLR (Pt. 1225) 404 and NDIGWE v. NWUDE (1999) 11 NWLR (Pt. 626) 314.
It is also glaring that the basis for the preliminary objection relates to evaluation of evidence and credibility of witnesses and thus constitutes issues that cannot be resolved at this stage without veering into the consideration of the substantive issues raised in the main appeal. As earlier stated, this application is for leave to compile and transmit supplementary record of appeal and any objection must relate to the competence of the said application. In the circumstance the preliminary objection is hereby overruled.
On the main application, the Respondents’ opposition is premised on three grounds as highlighted in their written address. Firstly, that the facts of the case do not support the grant of the said application because it was based on falsehood, having relied on an uncertified certificate of occupancy and on an unsworn statement of PW5 which documents were not tendered in evidence.
Secondly, that based on Exhibit 3 attached to the Respondents’ counter affidavit, it was PW5 that repeatedly stated five times in his evidence in chief that the “address” of his property is at “Sabongiwa near French Road” and this was so even when the prosecuting counsel tried to remedy the situation by giving Exhibits P1 and P25 to PW5 to read and that the words that were “indiscernible” to the recorder were those after “near Sabongiwa near French Road”.
Thirdly, that there is, no supplementary record before this court given the fact that the only content of what is termed supplementary record is an affidavit. Added to that is the fact that there is no application for leave to amend the existing record.
In this regard it is necessary to set out the relevant paragraphs of the affidavit in support of this application. Paragraphs 4(a-e) reads thus:-
4. That I was informed by S.K. Atteh, the lead counsel at the trial court at our office, 15A Awolowo Road, Ikoyi, Lagos on 25th April 2013 at about 09.00 hrs and I verily believe him that:-
(a) That upon studying the Record of Appeal, he discovered that there were transcription errors in the Recording of the testimony of Alhaji Sharu Jibo (PW5) whose testimony is on page 744 to 745 of Record of Appeal.
(b) That is order to draw the attention of the trial court to these errors, the Appellant deposed to an affidavit in respect of the same as per the said Record of the trial court.
(c) That the affidavit does not form part of the Record of Appeal before this honorable court because it was deposed to after the compilation and transmission of the Record of Appeal.
(d) That, having deposed to the said affidavit, there is therefore the need to compile and transmit a supplementary Record of Appeal to enable all the Record of the trial court to be before this honorable court for the just determination of the appeal.
(e) That the Appellant’s supplementary Record of appeal was filed on the 25th April 2013. A copy of the Appellant supplementary Record is hereby annexed and marked as Exhibit A.
The Respondents in paragraphs 5 to 15 of their counter affidavit deposed as follows:-
5. There is no Supplementary Record attached to the said affidavit but rather an affidavit filed by the Appellant/Applicants in the lower Court was misnamed “Appellant Supplementary Record of Appeal.”
6. That when the said motion filed in the lower court was served on the Respondents, they filed (1) a Counter-affidavit and (2) a Notice of Preliminary Objection thereto as witness a copy each of the said counter-affidavit and “Preliminary Objection” which are now shown to me, attached hereto and marked Exhibits “1” and “2” respectively.
7. The said processes were duly served on the Applicants herein.
8. The lower court has not heard the motion of the Applicant or the Preliminary Objection thereto.
9. It was the Appellant/Applicant alone that compiled the Record of Appeal as the Respondents were never invited to the settlement of the Record of Appeal. The said record correctly reflects the evidence of PW5, one Jibo, who claimed to own a house at “Sabongiwa Street”, Kano.
10. The Record of Proceedings (at pages 742-744) now shown to me attached hereto and marked Exhibit “3” shows clearly that the said witness distinctly and repeatedly stated 5 times that the address of his house was at “Sabongiwa Street”, Kano.
11. It was because he repeatedly said “Sabongiwa” that Counsel to the Applicant, Mr. Atteh, repeatedly asked him the address of his said house.
12. When the said witness failed to say the address he was inveigled to do so by asking him to read out the address from exhibits already tendered in court!
13. Now shown to me, attached hereto and marked Exhibit “3” is the said Record of Proceedings.
14. The Court below made a finding on the evidence of the witness at page 9 of its judgment in these words:
“when Prosecution Counsel saw that the witness did not state the address he wanted him to say he showed him Exhibits P1 and P25 to identify…I discountenance this identification of the address on Exhibits P1 and P25 by this witness. Documentary evidence is meant to add weight to oral evidence. In this case the oral evidence is at variance with the documentary evidence identified.”
15. There is also no appeal against this categorical finding or the decision of the court discountenancing the said evidence.
The Respondents as per paragraph 5 of their counter affidavit are of the stance that only an affidavit cannot constitute a supplementary record. They did not however dispute the fact that such affidavit was filed in the lower court and that it was so done after the records of appeal has been transmitted to this court.
However, by virtue of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 an appeal is deemed entered in this court upon receipt of the Record of Proceeding from the court below in the Registry of this court. Once so entered, this court assumes full authority over the whole proceedings, hence the lower court cannot interfere in anyway whatsoever except to transmit any application filed thereat to this court.
The case of EZEOKAFOR v. EZEILO supra, relied on by the appellant is trite on the issue. The appellant’s counsel had also submitted that the procedure adopted by filing the affidavit challenging the record of the Appeal at the trial court and seeking leave of this court to transmit the said affidavit as supplementary record is in consonance with Order 4 Rule 11 and the case of EZEOKAFOR v. EZEILO cited supra. I find myself compelled to agree with him.
It is trite that when a party intends to challenge the correctness of the record of proceeding the normal procedure is for that party to swear to an affidavit challenging the said record of proceedings. It is also his duty to set out the facts or part of the proceeding which is wrongly stated in the records or what happened during the proceedings, which is missing or excluded from, the proceedings in the trial court. See MOKWE v. WILLIAMS (1997) 11 NWLR (Pt. 528) 309 and AGBEOTU v. BRISIBE (2005) ALL FWLR (Pt. 257) 1454.
By the provisions of Order 8 Rule 1 of the Court of Appeal Rules 2011, the Registrar of the lower court has the duties to compile and transmit the Record of Appeal to this court within 60 days after filing of the Notice of Appeal. It however becomes mandatory for the appellant to do so within 30 days thereafter where the Registrar fails or neglects to do the compilation and transmission within the stipulated period of 60 days.
In the instant case, the record of appeal was compiled and transmitted to this court within time by the Registrar of the lower court and the appeal has been entered in this court upon receipt of the said records of Appeal. The appellant now simply seeks the leave of this court to compile and transmit a supplementary record which consists of a process filed in the lower court after appeal has been entered in this court. I do not happen to see any reason to justify a refusal of the application given the fact that there is no contrary claim to the fact that such process exists and was indeed filed in the lower court.
To my mind therefore, any challenge to whatever use it is to be put can only arise when it forms part of the record of appeal and that is the proper time for this court to look into it. The law requires any party who questions the correctness of the Record to formally attack it with such complaint given to the opposing party and any affidavit relating thereto served on the trial judge and/or the Registrar of the court. See AGBEOTU v. BRISIBE supra. The Respondents therefore have every opportunity available to challenge the correctness of the supplementary record when it is properly before this court. Their act of opposing the application at this stage and on issues relevant to the main appeal is therefore preemptive and unwarranted.
In the final result, I hold that this application should be and is hereby granted.
The Appellant is hereby granted leave to compile and transmit a supplementary Record to this court. The Appellant’s Supplementary Record of Appeal already compiled and transmitted to this court is hereby to be properly compiled, transmitted and served.
Parties to bear their cost.
JOSEPH SHAGBAOR IKEGH, J.C.A.: I agree with the comprehensive Ruling prepared by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, J.C.A., with nothing extra to add.
TIJJANI ABUBAKAR, J.C.A.: I read the ruling just delivered by my learned brother OSEJI, J.C.A., I am in complete agreement and adopt the entire reasoning and conclusion as mine with nothing useful to add.
Appearances
S. A. Atteh with J. Aneachia (Miss)For Appellant
AND
J. E. Ezik with Moses OlogwuFor Respondent
