GROUP CAPTAIN J J IJUDIGAL v. THE NIGERIAN AIR FORCE
(2018)LCN/12334(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/A/307C/2018(R)
RATIO
APPEAL: THAT THE COURT IS NOT TO HEAR APPEAL ON INCOMPLETE RECORD
“It is since firmly settled that it is the duty of an appellate Court not to hear an appeal on incomplete records. This is because the Record of proceedings binds both the parties as well as the Court, until the contrary is proved. Also, the Court is entitled, but even more than that, it is obliged, to inspect, scrutinize and refer to the contents of the entire records of the lower Court in the contemplation of the matter before it. See: MUAZU V. MAINSTREET BANK & ORS (2015) LPELR (25688) (CA); EKPEMUPOLO v. EDREMODA (2009) LPELR 1089(SC).” PER ABDU ABOKI J.C.A.
COURT AND PROCEDURE: WHERE THERE IS A MISSING PART IN THE RECORD OF PROCEEDINGS
“The record of proceedings in any matter is sacrosanct. It is the proof of what transpired in the hearing of a matter adjudicated upon in Court. The record of appeal consists of the proceedings appealed and the relevant documents tendered during the proceedings. The settled general principle of law is that an appellate Court shall not entertain an appeal upon an incomplete record except upon the consent of the parties. The circumstances of each case will however determine whether or not an appellate Court can properly determine an appeal without a complete record of appeal. In my view, even where there is consent but the missing part of the record is material or vital to the decision of the appellate Court, the appellate Court has no competence to entertain the appeal. See Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166, AULT & WIBOSG (Nig) Ltd., v. NIBEL Ind. Ltd (2010) 11 NWLR (Pt.1220) 486 at 496. In Okochi v. Animkwoi (2003) LPELR -2455 (SC)” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
GROUP CAPTAIN J J IJUDIGAL Appellant(s)
AND
THE NIGERIAN AIR FORCE Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Lead Ruling):
This is an interlocutory appeal against the decision of the Court Martial sitting at the Nigerian Air Force Base, Bill Clinton Drive Airport Road Abuja delivered on 3rd April, 2018 wherein the learned trial Judge Advocate dismissed the notice of preliminary objection filed by the Appellant challenging the jurisdiction of the Court Martial to try him seeking for dismissal of the charges brought against him. The Court ordered the Appellant to subject himself to the jurisdiction of the Court for trial. Dissatisfied with the ruling of the Court of Court Martial, the Appellant filed an omnibus ground of appeal upon the complaint that the Respondent refused to avail the Appellant his application for the record of proceedings and the ruling was refused mala fides with the aim of denying the Appellant the opportunity to lift specific grounds of appeal from thereon.
In this Court, parties filed their briefs of argument. The Appellant’s brief of argument settled by S.A. Adukwu was filed on 24/5/18 while the Respondent’s brief prepared by Mallam J.A. Adamu, Deputy Director of Legal Services, was filed on 25/9/18 and deemed as properly filed and served on 23/10/18. The Respondent also filed a Notice of Preliminary Objection on 25/9/18 which was argued in the Respondent’s brief of argument. On 15/10/18, the Appellant in response, filed Appellant’s Reply brief.
I will deal with the preliminary objection, which prayed for the appeal to be dismissed in limine on the following grounds:
1. The advice of the Judge Advocate complained against by the Appellant is not also contained in the record of appeal.
2. The decision of the lower Court on the application for stay of proceedings pending appeal is not contained in the record of appeal.
3. No record of proceedings of the lower Court was brought before this honourable Court.
A fifteen paragraphed affidavit was filed in support of the Notice of Preliminary objection. The Respondent filed a 14 paragraphed affidavit in opposition to the preliminary objection.
In arguing the preliminary objection, the learned for the Respondent submitted that by the combined effect of the provisions of Sections 148 (3) and 149 (1) and (2), 151 (6) 152 and 184 of the Armed Forces Act,2004, Cap. 20 of the Laws of the Federation of Nigeria, a decision or finding of a general Court martial whether interlocutory or final cannot be enforced or appealed against unless same is approved by the confirming authority within the time and upon leave being sought and granted. Failure of the Appellant to comply with the conditions precedent to filing and hearing of an appeal, he argued, renders the appeal incompetent – Ladoja v. INEC (2007) Vol. 10 on JSC 1, Inakoju v. Adeleke (2007) Vol.2 MJSC 1.
It was further submitted that the record of appeal compiled by Appellant is incomplete in that it does not contain the Judges notes of evidence and minutes of proceedings, particularly the Ruling of the Court which is being appealed. This Court, he argued, lacks the jurisdiction to entertain an appeal with incomplete record. He cited in support Order 17 Rule 9 (1) of the Court of Appeal Rules, 2016 Egharevba v. Eribo (2010) 9 NWLR (Pt.1199) 411SC; Atoshi & Ors v. Agbu & Ors (2018) LPERL – 44477 (CA).
The Appellant in his response has argued that the Respondent has misconceived the provisions of S.148 (3) of the Armed Forces Act in his belief that leave ought to be sought by the Appellant from the Respondent before he can appeal. Section 148 (3) by the Act he submitted is not superior to be provisions of the 1999 Constitution and by virtue of Section 1 (1) and (3) of the Constitution, the provision of the Constitution shall prevail over and above any other law to the extent of the inconsistency. The Appellant in response to the preliminary objection emphasized that it is the duty of the Respondent to compile the record of appeal which it deliberately failed to do so as to frustrate the appeal. According to him, in compiling the record of appeal before the Court, the Appellant fulfilled all the requirements listed in Order 18 Rule 6 (3) of the Court of Appeal Rules 2016 except for the Judge’s Notes which he duly applied for but was mischievously refused by the Respondent.
The issue for determination in this preliminary objection is whether the Court of Appeal can entertain this interlocutory appeal as presently constituted considering the circumstances of this appeal and the incomplete nature of the record of appeal.
The record of proceedings in any matter is sacrosanct. It is the proof of what transpired in the hearing of a matter adjudicated upon in Court. The record of appeal consists of the proceedings appealed and the relevant documents tendered during the proceedings. The settled general principle of law is that an appellate Court shall not entertain an appeal upon an incomplete record except upon the consent of the parties. The circumstances of each case will however determine whether or not an appellate Court can properly determine an appeal without a complete record of appeal.
In my view, even where there is consent but the missing part of the record is material or vital to the decision of the appellate Court, the appellate Court has no competence to entertain the appeal. See Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166, AULT & WIBOSG (Nig) Ltd., v. NIBEL Ind. Ltd (2010) 11 NWLR (Pt.1220) 486 at 496. In Okochi v. Animkwoi (2003) LPELR -2455 (SC), Tobi JSC held pointedly thus:
“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard.
And such a consent, which will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record. Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial in the matter if the missing portion of the record is material to the appeal.
This must be a decision of last resort which must be taken after all efforts at locating the missing portion of the record fails.
Although the decision to order a retrial will protract the litigation, an appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete record.” (Underling supplied for emphasis)
Recently, this Court, in the case of Atoshi & Ors v. Agbu & Ors (2018) LPELR – 44477 (CA) per Omoleye JCA, expatiated thus:
“…depending on the circumstances of each matter, where in an appeal there is incomplete record or part of the record is missing, the appellate Court has any of the following three options to take viz:
a) The Court can hear the appeal on such incomplete records of documents presented before it, provided the parties give their express consent, which consent must be clearly recorded by the Court and this will constitute a successful defence of waiver against a future resiliation by an of the consenting parties.
b) The Court can hear the appeal on such incomplete records where the missing part of the record is, in its view, not material.
c) In the alternative, the Court can refuse to hear the appeal and take the last resort and order the remittance of the case to the lower Court to hear it “de novo.”
In the instant case, the ruling upon which the Appellant has appealed is not contained in the record of appeal. There is no way this Court can determine this appeal without the Ruling being appealed. The reasoning of the Court which warranted the ruling appealed against has to be examined by the appellate Court for it to decide whether or not to uphold the decision of the Court below. The missing part of the record of appeal is the basis or live wire of the appeal. It cannot be waived by this Court.
However, this Court cannot close its eyes to the peculiarity of this case and the justice of the matter. In Court martial proceedings, the Judges notes of evidence and minutes of proceedings of the trial are in the exclusive custody of the Respondent. By the provisions of Order 18 Rule 6 (a) and (b) of the Court of Appeal Rules 2016, the Registrar of the Court below shall upon the receipt of the notice of appeal or extension of time within which to appeal (whichever comes first) prepare and transmit record of proceedings within 60 days of such service, In this case the Notice of Appeal was filed on the 7th day of May, 2018. The Court below till date failed to compile the record of appeal. By the provisions of Order 8 Rule 4 of the Court of Appeal Rules, whererafter the expiration of 60 days of the filing of the notice of appeal, the registrar failed and or neglected to compile and transmit the Records of Appeal, it shall become mandatory, for the Appellant to compile the records within 30 days after the registrar’s failure or neglect. The Appellant in paragraphs 6, 7 and 8 of the counter-affidavit in opposition to the Notice of Preliminary objection stated as follows:
5. “That there was an application by the appellant for the record of proceeding at the lower Court as contained in the transmitted record which the applicant/respondent refused and/or neglected to approve so that they can make an issue out of it before this Honourable Court.
7. That the refusal of that applicant/respondent to approve the compilation was borne out of their lack of adjudication independence as the convening authority at all material times is responsible for the direction of all matters and issues arising in limine during trial and they directed the Court not to compile any record for transmission to this Honorable Court.
8. That the said refusal to compile the record after the receipt of the notice of appeal was deliberate so that they can approach the Court of Appeal with an application of this nature aimed at truncating the appeal over their own error of commission.
The Respondent did not counter these specific averments in the counter affidavit of the Appellant. It is elementary principle of law that facts not denied in the pleadings are deemed admitted. It is therefore not in doubt that the Appellant applied for same but the Respondent refused/neglected to supply the Appellant.
The attitude of the Respondent by its failure to surrender the Judges notes including the ruling to the Appellant amounts to an attempt to scuttle his right of appeal. Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 endows the appellant the right to appeal to the Court of Appeal against the decision of Court Martial. This right of appeal must not be scuttled by the antics of the Respondent. The attitude of the Respondent is tantamount to frustrating the right of appeal.
The Respondent should not in any circumstance refuse a contending or prospective appellant the right to record of proceedings in the Court martial so as to pursue his right of appeal. such refusal smarks of gross injustice which will not be tolerated by this Court. It is preposterous that the same Respondent that deliberately refused to compile or surrender the notes of proceedings will turn around to use the same failure to urge the Court to strike out the Appellant’s appeal as incompetent for failure to compile to record of proceedings including the Ruling. A person cannot be allowed to benefit from his own wrong. In this case, the missing part of the record of appeal is in the custody of the Respondent. In the circumstances of this case, the only appropriate order to make is to order the Respondent to release the record of proceedings to the Appellant for compilation in pursuant of his appeal filed in this Court. It is for this Court to decide whether or not the appeal is meritorious.
An order for retrial cannot be ordered because there is yet to be a trial. In circumstances, I hereby order the Respondent to surrender the record of proceedings for compilation within 30 days from today. Even though I have held that this appeal ought not to be determined without the ruling being appealed, the preliminary objection of the Respondent is dismissed as unmeritorious; for the main reason that it is the Respondent that has withheld the ruling being appealed by the Appellant. A party cannot be allowed to benefit from his own wrong.
ABDU ABOKI, J.C.A.: I have had the privilege of reading before now, the read judgment just delivered by my Learned Brother TINUADE AKOMOLAFE-WILSON JCA. I adopt as mine, His Lordship?s reasoning and the conclusions arrived therein.
I am also in agreement that this Court cannot give a fair and exhaustive consideration to this appeal when the ruling upon which the Appellant has appealed to this Court is not contained in the Record of Appeal. There is no way this Court can determine this appeal when the Ruling being appeared against is not before it.
This is because, this Court, in exercising its appellate jurisdiction, ought to have before it and examine, the reasoning of the Court below which warranted the ruling appeared against, to decide whether or not to uphold the decision of the Court below. Any decision given by this Court without the benefit of an examination of the ruling upon which the Appellant has appealed, cannot be well premised.
It is since firmly settled that it is the duty of an appellate Court not to hear an appeal on incomplete records. This is because the Record of proceedings binds both the parties as well as the Court, until the contrary is proved. Also, the Court is entitled, but even more than that, it is obliged, to inspect, scrutinize and refer to the contents of the entire records of the lower Court in the contemplation of the matter before it.
See: MUAZU V. MAINSTREET BANK & ORS (2015) LPELR (25688) (CA); EKPEMUPOLO v. EDREMODA (2009) LPELR 1089(SC).
When confronted with similar circumstance in OKOCHI & ORS v. ANIMKWOI & ORS (2003) LPELR 2455 (SC), the apex Court reacted inter alia, as follows:
“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record…..”
Consequently, there is no way this Court can determine this appeal when the Ruling being appealed against is not before it.
For this reason and for the more articulated reasons proffered by my Learned Brother TINUAKE AKOMOLAFE WILSON JCA, I also find that the appropriate order to make is to order the Respondent to release the record of proceedings to the Appellant for compilation of his appeal.
I subscribe to all the orders made in the lead Judgment.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the Ruling just delivered by learned brother, Tinuade Akomolafe-Wilson, JCA.
I am in complete agreement with her reasoning and conclusion that the preliminary objection in this appeal is unmeritorious. I too dismiss the objection.
Appearances:
S.A. Aduku, Esq. For Appellant(s)
P.M. Okongwu, Esq. PSC FMOHFor Respondent(s)
