IFEDAYO v. STATE (2022)

IFEDAYO v. STATE

(2022)LCN/16839(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, July 22, 2022

CA/IB/269C/2021

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ABIOLA IFEDAYO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT MUST TAKE NOTICE OF ALL INFORMATION IN THE RECORD OF APPEAL

I decided to examine the record of appeal and the additional record of appeal because the Court is permitted by law to take judicial notice of all relevant information in the record of appeal, which will assist the Court in doing substantial justice in the determination of an appeal. See Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144; S.B.M. Services (Nig.) Ltd. v. Okon (2004) 9 NWLR (Pt. 879) 529; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State & Ors. v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291. PER ADUMEIN, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN ENTERTAIN AN APPEAL ON THE RECORD WHICH HAS NOT BE COMPILED AND TRANSMITTED FROM THE LOWER COURT

It is an elementary knowledge of law that an appellate Court is not vested with jurisdiction to entertain an appeal on the record which has not been compiled and transmitted from the lower Court to the appellate Court. The Court of Appeal is only seised of jurisdiction in an appeal which has been entered in the Court. And an appeal is entered from the date the record of appeal is transmitted to the Court of Appeal. See Abina v. Tika-Tore Press (1968) 5 NSCC 164 and Leaders and Company Ltd. v. Kusamotu (2008) ALL FWLR (Pt. 405) 1800. PER ADUMEIN, J.C.A.

THE PURPOSE OF AN APPEAL

Another principle of law, relevant to this case, is that, by Section 16 of the Court of Appeal Act, an appeal is a rehearing. See Okoya v. Santili (1990) 2 NWLR (Pt. 1025) 427; Union Bank of Nigeria Ltd. v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt. 334) 325; Standard (Nigeria) Engineering Co. Ltd. & Anor. v. Nigerian Bank for Commerce and Industry (2006) 43 WRN 47; Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 7 NWLR (Pt. 766) 243 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427.
Thus, in the case of Mrs. Alero Jadesimi v. Adolo Okotie-Eboh & Ors. (1986) 1 NWLR (Pt. 16) 264 at 274 per Karibi-Whyte, JSC; the Supreme Court held as follows:
“Concisely stated, the powers of the Court of Appeal with respect to the determination of appeals before it is by way of re-hearing. The word re-hearing in this context means a hearing on printed records by re-examining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. It means on examination of the case as a whole. The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial Judge from facts which do not follow from the evidence or may be regarded as perverse. See Onowan & Anor. v. Iserhein (1976) 1 NMLR 263. In certain cases, it is also empowered to draw the proper inferences disclosed on the evidence – Akinyemi v. Akinyemi; Shell B. P. Petroleum Co. Ltd. v. His Highness Pere Cole & Ors. (1978) 3 S. C. 183.
One of the general powers of the Court of Appeal under Section 16 is to exercise “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance…”

In a criminal case, such as this, it has been held that the proper order to be made, where the record of appeal is incomplete, is for a retrial of the case de novo. See Ofoke Nwaibe v. The State (1996) 9 NWLR (Pt. 472) 343.

It should be noted that an appellate Court has a duty to ensure that the record of appeal is complete. See Access Bank Plc v. Mr. A. N. C. Onwuliri (2021) 6 NWLR (Pt. 1773) 391.
The law appears to be that where an appellate Court, such as this Court, is faced with a situation, such as this, where the record of appeal is incomplete, the appeal can be put in abeyance until the record of appeal has been fully compiled and transmitted. The appeal may not be struck out to afford the parties the opportunity to correct the anomaly or error and the appeal heard by a different panel of justices. See Access Bank Plc. v. A. N. C. Onwuliri (Supra) at 421, per Abba Aji, JSC; where the Supreme Court held that:
“Since it was found out by the lower Court that the record of appeal was incomplete, the lower Court ought not to have heard the appeal until same is compiled and transmitted or strike out the matter to give the parties another bite at the cherry.
…
The order of remittance to the lower Court… that the appeal be heard by a different panel is the proper and best order to make”.

In this case, it was not discovered that the record of appeal was incomplete before we heard the appeal. It was in the course of writing this judgment that I discovered that the record of appeal is incomplete and the issue was, therefore, raised suo motu by me. PER ADUMEIN, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU

The law is that where a Court raises an issue suo motu, there is need for the parties to be invited to address the Court on it. See Madam Fumike Ojo Osagie v. Sunday Andori (1994) 6 NWLR (Pt. 349) 131; and Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144.
However, it is clear that it is not in all cases where a Court raises an issue suo motu that it needs to invite the parties to address it on it. One instance where the parties need not be invited to address the Court on an issue raised suo motu is where the issue so raised is within the contemplation of the parties. See John Babani Elias v. Federal Republic of Nigeria (2021) 16 NWLR (Pt. 1800) 495. PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the 3rd defendant in Suit No: I/103C/2016 whereby he and two other defendants (Hammed Alani and Wahab Lateef) were arraigned before the High Court of Oyo State, holden at Ibadan, and charged as follows:
COUNT I
“That you Hammed Alani, Wahab Lateef, Abiola Ifedayo and others still at Large, on the 5th day of November, 2015 at about 14.45 hours, at Arowojeka area along Olode Road, Ibadan, within the Ibadan Judicial Division of Oyo State did conspire together to commit a felony to wit armed robbery, contrary to Section 6 (b) of the Robbery and Firearm (Special Provisions) Act, Cap. R11, Vol. 14 Laws of the Federation of Nigeria, 2004 and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol. 14, Laws of the Federation of Nigeria 2004.
COUNT II
“That you Hammed Alani, Wahab Lateef, Abiola Ifedayo and others still at Large, on the 5th day of November, 2015 at about 14.45 hours, at Arowojeka area along Olode Road, Ibadan, within the Ibadan Judicial Division of Oyo State, while armed with a pistol did rob one Toyin Olasunkanmi “F” in her shop of the sum of N71,500.00 (Seventy-one Thousand, Five Hundred Naira) and her hand bag valued at N1,500.00 (One Thousand, Five Hundred Naira) only all amounting to N73,000.00 and thereby committed an offence contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap, R11, Vol. 14, Laws of the Federation of Nigeria, 2004”.

Upon the defendants’ plea of not guilty to the above offences, the prosecution called four witnesses – PW1 (Mrs. Toyin Olasunkanmi), PW2 (Mr. Badmus Mohammed), PW3 (Kunle Azeez), and PW4 (Inspector Lawal Mutiu). The prosecution tendered 11 exhibits. The appellant testified in his own defence as DW3.

After taking the evidence of the witnesses, including that of the appellant, and after the final addresses of the learned counsel for the parties, the trial Court delivered a reserved judgment on 26/06/2021 whereby the appellant and his co-defendants were each convicted of the offences of conspiracy to commit robbery and armed robbery. They were each sentenced to 10 years imprisonment in respect of each of the two counts. Being dissatisfied with the judgment of the trial Court, the appellant filed a notice of appeal on 13/08/2021 and which notice, constraining 5 grounds, is on pages 111 to 117 of the record of appeal.

In the appellant’s brief, settled by Olusola Olorunfemi, Esq., a lone issue was identified for determination as follows:
“Whether having regards to the inconsistencies, speculations, distortions, material contradictions and abundant doubts in the case put forward by the respondent, the decision of the lower Court is not unreasonable”.

On behalf of the respondent, Yusuff Olatunji Ogunrinde, Esq., raised the following issue for resolution:
“Whether having regards to the circumstances of this case, the totality of the evidence on record and the position of the law, the lower Court was right to have affirmed that the prosecution was able to prove the offences of conspiracy to commit armed robbery and armed robbery against the appellant and his co-defendants?
(Grounds 1 to 5 of the Notice of Appeal)”

The sole issue formulated by each of the parties is one and the same, although couched differently.

The judgment of the trial Court is from pages 93 to 110 of the record of appeal. From pages 93 to 109 of the record, the trial Court referred to the two count charge preferred against the three defendants; briefly summarized the facts of the case, the evidence or testimonies of each of the prosecution witnesses and the defendants; the defendants’ counsel’s written address and that of the prosecuting counsel; and stated issues which it formulated for determination and the principles of law with some cases it considered relevant to its issues. The trial Court then proceeded to find and hold on pages 109 to 110 of the record, as follows:
“On the face of the Court, evidence was led by the PW1, PW2, PW3 and PW4 that there was robbery. Equally, the Defendants confessed to the crime. I hold that the prosecution has proved that there was robbery
(b) The evidence was led by the PW1 that the Defendants robbed her with a locally made pistol i.e Exhibit 1 which was recovered from 1st Defendant. The PW3 and PW4 gave evidence that Exhibit 1 was recovered from them coupled with the confessional statement of the Defendants. I hold that the prosecution has proved that the robbers were armed with offensive weapons during the operation and that the Defendants participated in the robbery. PW1 gave evidence that the Defendant robbed her of her money. PW3 and PW4 linked the Defendants to the commission of the robbery.
Furthermore, the Defendants themselves confessed to the crime of robbery. Assuming without conceding that the prosecution failed to prove the guilt of the Defendants on the conspiracy to robbery and robbery, the law is that an accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which have been proved. See AKPAN VS. STATE (1990) 7 NWLR (PART 160) 101 and AGUGUA VS. STATE (2017) 10 NWLR (Part 1573) 254 AT 280 PER ARIWOOLA JSC.
From the foregoing therefore, I resolve the two issues in favour of the prosecution and I hold that the prosecution has proved the guilt of the Defendants beyond reasonable doubt and I convict them of conspiracy to commit robbery and armed robbery”.
(Underlining mine for the sake of emphasis)

It is obvious, from the portion of the judgment reproduced above that the issue of whether or not the appellant made a confessional statement to the Police was a live issue before the trial Court. As a fact, on 18/04/2018, after admitting in evidence “the statement(sic) of the complainant and IPO”, as exhibits “A1” and “A2” through, PW3 the trial Court ordered on pages 40 – 41 of the record as follows:
“COURT: The trial within trial is ordered to be taken.
The case is adjourned to 2 1-5-18 for trial within trial”.

Pages 217 to 221 of the additional record of appeal contain record of proceedings of the trial–within trial conducted on 21/05/2018 and the case was “adjourned to 4-06-18 for the address of counsel in the trial within trial”.

It should be noted that both on page 51 of the record of appeal, and pages 223–224 of the additional record of appeal, another trial-within-trial was ordered by virtue of what transpired on that day, when PW4 gave evidence on 29/11/2018, and the relevant portions of the proceedings of that day are hereby reproduced:
“I also said in evidence that the statements of the suspects were taken. If I see the statements I will identify it. These are the statements but one of the statements was recorded by my senior in the person of Inspector Buba Laka.
Michael Oke: I seek leave of the Court to tender the statements as Exhibit.
Yomi Nuberu: We are objecting to the admissibility of the statements on the Defendants they were tortured by PW4 and one policeman called Alaremu.
COURT: In the circumstance the Court would go into trial within trial to determine the voluntariness of the statements made to the CW4 by the Defendants.

The trial-within-trial ordered by the trial Court commenced on 29/11/2018 and was concluded on 11/04/2019 and, thereafter, ruling was reserved for 22/05/2019. See pages 224 to 236 of the additional record of appeal. However, on page 237 of the additional record of appeal, the trial Court noted on 11/06/2019 that:
“Ruling read in open Court and objection to the admissibility of the statement(sic) made by the defendant(sic) of (sic) SARS overruled”.

Both the record of appeal and the additional record of appeal, compiled and transmitted to this Court on 27/09/2021 and 09/11/2021, respectively, however, do not contain a copy of the ruling of the trial Court allegedly rendered on 11/06/2019. The record of appeal, in this case, therefore patently incomplete.

I decided to examine the record of appeal and the additional record of appeal because the Court is permitted by law to take judicial notice of all relevant information in the record of appeal, which will assist the Court in doing substantial justice in the determination of an appeal. See Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144; S.B.M. Services (Nig.) Ltd. v. Okon (2004) 9 NWLR (Pt. 879) 529; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State & Ors. v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291.

It is an elementary knowledge of law that an appellate Court is not vested with jurisdiction to entertain an appeal on the record which has not been compiled and transmitted from the lower Court to the appellate Court. The Court of Appeal is only seised of jurisdiction in an appeal which has been entered in the Court. And an appeal is entered from the date the record of appeal is transmitted to the Court of Appeal. See Abina v. Tika-Tore Press (1968) 5 NSCC 164 and Leaders and Company Ltd. v. Kusamotu (2008) ALL FWLR (Pt. 405) 1800.

Another principle of law, relevant to this case, is that, by Section 16 of the Court of Appeal Act, an appeal is a rehearing. See Okoya v. Santili (1990) 2 NWLR (Pt. 1025) 427; Union Bank of Nigeria Ltd. v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt. 334) 325; Standard (Nigeria) Engineering Co. Ltd. & Anor. v. Nigerian Bank for Commerce and Industry (2006) 43 WRN 47; Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 7 NWLR (Pt. 766) 243 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427.
Thus, in the case of Mrs. Alero Jadesimi v. Adolo Okotie-Eboh & Ors. (1986) 1 NWLR (Pt. 16) 264 at 274 per Karibi-Whyte, JSC; the Supreme Court held as follows:
“Concisely stated, the powers of the Court of Appeal with respect to the determination of appeals before it is by way of re-hearing. The word re-hearing in this context means a hearing on printed records by re-examining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. It means on examination of the case as a whole. The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial Judge from facts which do not follow from the evidence or may be regarded as perverse. See Onowan & Anor. v. Iserhein (1976) 1 NMLR 263. In certain cases, it is also empowered to draw the proper inferences disclosed on the evidence – Akinyemi v. Akinyemi; Shell B. P. Petroleum Co. Ltd. v. His Highness Pere Cole & Ors. (1978) 3 S. C. 183.
One of the general powers of the Court of Appeal under Section 16 is to exercise “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance…”

A corollary to the principle that an appeal is a rehearing is that it is not right for the Court of Appeal to determine an appeal before it on an incomplete record of appeal, as doing so may occasion a miscarriage of justice. See Emeka Nwana v. Federal Capital Development Authority (2007) 11 NWLR (Pt. 1044) 59 and Alam Oparaji v. Nwosu Ohanu (1999) 9 NWLR (Pt. 618) 290.

In a criminal case, such as this, it has been held that the proper order to be made, where the record of appeal is incomplete, is for a retrial of the case de novo. See Ofoke Nwaibe v. The State (1996) 9 NWLR (Pt. 472) 343.

It should be noted that an appellate Court has a duty to ensure that the record of appeal is complete. See Access Bank Plc v. Mr. A. N. C. Onwuliri (2021) 6 NWLR (Pt. 1773) 391.

The law appears to be that where an appellate Court, such as this Court, is faced with a situation, such as this, where the record of appeal is incomplete, the appeal can be put in abeyance until the record of appeal has been fully compiled and transmitted. The appeal may not be struck out to afford the parties the opportunity to correct the anomaly or error and the appeal heard by a different panel of justices. See Access Bank Plc. v. A. N. C. Onwuliri (Supra) at 421, per Abba Aji, JSC; where the Supreme Court held that:
“Since it was found out by the lower Court that the record of appeal was incomplete, the lower Court ought not to have heard the appeal until same is compiled and transmitted or strike out the matter to give the parties another bite at the cherry.
…
The order of remittance to the lower Court… that the appeal be heard by a different panel is the proper and best order to make”.

In this case, it was not discovered that the record of appeal was incomplete before we heard the appeal. It was in the course of writing this judgment that I discovered that the record of appeal is incomplete and the issue was, therefore, raised suo motu by me.

The law is that where a Court raises an issue suo motu, there is need for the parties to be invited to address the Court on it. See Madam Fumike Ojo Osagie v. Sunday Andori (1994) 6 NWLR (Pt. 349) 131; and Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144.
However, it is clear that it is not in all cases where a Court raises an issue suo motu that it needs to invite the parties to address it on it. One instance where the parties need not be invited to address the Court on an issue raised suo motu is where the issue so raised is within the contemplation of the parties. See John Babani Elias v. Federal Republic of Nigeria (2021) 16 NWLR (Pt. 1800) 495.

Having regard to the facts and circumstances of this case, the issue of completeness or incompleteness of the record of appeal falls squarely with the contemplation of the parties, especially the appellant who compiled and transmitted the record. I refer to the appellant because the Rules of this Court make it mandatory for an appellant to compile and transmit the record of appeal if the Registrar of a lower Court defaults in compiling and transmitting the record of appeal within the time prescribed for him so to do. See, for example, Order 8 rule 4 (1) of the Court of Appeal Rules, 2021 and the case of Access Bank Plc. v. A. N. C. Onwuliri (supra) at 415.

It appears to me that the record of appeal is incomplete because of the obvious negligence of the appellant, who compiled and transmitted the record, to include the ruling of the trial Court on the trial-within-trial delivered on 11/06/2019. Therefore, the interest of justice will be better served if the appellant is granted leave to compile and transmit the ruling as a further additional record of appeal within a specified time; especially bearing in mind that two sister appeals –Appeal No: CA/IB/268C/2021 between: WAHAB LATEEF VS. THE STATE and Appeal No: CA/IB/270C/2021 between: HAMMED ALANI VS. THE STATE; appeals filed by the appellant’s co-defendants have already been heard and determined by this Court by a Panel of Justices different from this panel.

In conclusion, this Court cannot determine this appeal since the record is incomplete by virtue of the exclusion of a material, relevant and vital ruling rendered by the trial Court on 11/06/2019.

Consequently, the parties – appellant and respondent, jointly or severally, are hereby ordered to compile and transmit the ruling of the trial Court delivered on 11/06/2019 as Volume 2 of Additional Record of Appeal within 45 (forty-five) days from today.

The appeal is hereby adjourned to the 6th day of October, 2022 for hearing, if the ruling delivered on 11/06/2019 by the trial is transmitted to this Court within 45 days from today; or for other necessary decision(s), by any other panel of this Court than the present one.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. It is firmly settled that an appellate Court cannot hear and determine an appeal where the relevant and vital materials are excluded from the record of appeal because a Court is entitled to look at and refer to the contents of the Records in consideration of any matter before it. Therefore, where there is an incomplete record of appeal before the Court, the appellate Court is not duty bound to determine it. See the case of CHIEF OKOCHI & 2 ORS. V. CHIEF ANIMKWOI & 2 ORS. (2003)18 NWLR (PT.25) 1, EKPEMUPOLO & ORS V. EDREMODA & ORS (2009) LPELR-1089(SC) and SOMMER V. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT.219) 548. Hence, failure of the appellant to transmit the ruling delivered on 11/06/2019 renders the record before Court incomplete and the Court cannot determine the appeal.

I, therefore adopt the reasoning in the judgment of my learned brother as mine and abide by the orders made therein.

FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the leading judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.

An appellate Court is expected at all times to examine the record of appeal and take note of its contents. The law is settled that an appeal is in the nature of a rehearing. It is therefore important to ensure that a complete record of what transpired at the trial Court is compiled and transmitted to this Court. A complete record consists of all the proceedings in the trial Court. See ACCESS BANK PLC VS. ONWULIRI (2021) 6 NWLR (PT. 1773) 391; AUDU VS. FEDERAL REPUBLIC OF NIGERIA (2013) 5 NWLR (PT. 1348)397.
In this appeal, the ruling delivered by the trial Court at the conclusion of the trial-within-trial is not part of the processes compiled and transmitted to this Court as the record of Appeal. It is trite that Court would not decide a case on mere conjecture or speculation. An appeal Court is bound by the record transmitted to it and should not go outside it. See AYOADE VS. STATE (2020) 9 NWLR (PT. 1730) 577: STATE VS. YAHAYA (2019) 13 NWLR (PT. 1690.)577: ORISA VS. STATE (2018) 11 NWLR (PT. 1631)453.
This Court cannot therefore speculate on whether or not the trial Court was right when it attached weight to the extra-judicial statement attributed to the Appellant.
It is for the foregoing and the more elaborate reasons in the leading judgment that I too hold that this appeal cannot be heard on an incomplete record. I abide by the consequential orders in the leading judgment.