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ILORI OLAWOLE ADEKANBI & ANOR. V. ALHAJI ALAWANI OLUFAWOYE & ANOR. (2012)

ILORI OLAWOLE ADEKANBI & ANOR. V. ALHAJI ALAWANI OLUFAWOYE & ANOR.

(2012)LCN/5216(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of March, 2012

CA/B/173M/2010

RATIO

THE POSITION OF THE LAW ON THE EXERCISE OF DISCRETION BY A COURT

It was held in the case of M.V. Lupex Vs N.O.C. & S. Ltd. (2003) 15 NWLR (844) 469 thus: “An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.” In the exercise of discretion the court must act judicially and judiciously having regard to the facts and circumstances of the case and the materials placed before it. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES:

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. ILORI OLAWOLE ADEKANBI
2. HIS HIGHNESS, OBA RUFUS ADENIBUYAN ALADETANYE – Appellant(s)

AND

1. ALHAJI ALAWANI OLUFAWOYE
2. APOSTLE (DR.) MOSES ADETUNJI FASAWE (FOR THEMSELVES AND THE ENTIRE MEMBERS OF IDOBI FAMILY OF ISUADA – Respondent(s)


KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.(Delivering the Lead Ruling):
 By a motion on notice dated and filed on 14/10/2010 the Appellants/Applicants (hereinafter referred to as the applicants) seek the following order:
“An order directing that Suit No. HOW4/2001 be heard de novo by another Judge by reason of the frustration of the appeal lodged hereto.
And such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
The grounds for the application are:
1. “The applicants, who were defendants at the Ondo State High Court, filed an appeal but the appeal could not be prosecuted because the case file, records and exhibits were and are still missing at the Lower Court’s Registry.
2. The applicants also filed an application for stay of execution which could not be argued because of the missing case file and records.
3. All efforts of the applicant’s counsel to retrieve the case file have proved abortive and this is preventing the prosecution of the appeal.
4. The respondents are in the mean time delineating the res, the land in dispute, into plots for the purpose of alienating same to 3rd parties and this can prejudice the applicants.”
The application is brought pursuant to Section 15 of the Court of Appeal Act 2007 and under the inherent jurisdiction of the court. It is supported by a 29-paragraph affidavit deposed to by the 2nd applicant with several exhibits annexed thereto. In opposition to the application, the respondents filed a 17- paragraph counter affidavit sworn to on 17/4/2011 by the 2nd respondent. When the application came before the court on 11/4/2011, the parties were ordered to file written addresses. In compliance with the said order the applicants filed a written address dated and filed on 21/4/2011. It was settled by OBA S.K.A. ADEDOYIN. The respondents filed a written address in opposition thereto dated and filed on 28/4/2011. It was settled by ADEDEFE ONI ESQ. The applicants also filed a reply to the respondent’s written address. It is dated 18/5/2011 and filed on 19/5/2011. The application was heard on 1/2/2012. O.S. ADERIBIGBE ESQ., adopted and relied on the written addresses referred to above and urged the court to grant the application. O.F. ALADEDUTIRE ESQ., learned counsel for the respondents adopted the written address in opposition to the motion and urged the court to refuse the application.
The facts that gave rise to this application are deposed to in paragraphs 3 – 21 of the affidavit in support. They can be summarized thus: The respondents were plaintiffs at the court below in an action seeking declaration of title, damages for trespass and injunction against the applicants as defendants.The suit was commenced in the Owo Judicial Division of Ondo State High Court before Hon. Justice Kumuyi (now Hon, Chief Judge), Hon. Justice Kumuyi was later transferred to Okitipupa. The suit was continued and concluded in the Akure Judicial Division. Judgment in the suit was delivered on 13/3/09 in the respondents’ favour. The applicants being dissatisfied with the decision filed a notice of appeal dated 23/3/09 before the Owo Judicial Division of the Court where the suit originated. They also filed a motion on notice for stay of execution of the judgment. The application was not listed for hearing. Upon enquiry, the applicants were informed that the case file and record of proceedings could not be located at the registry of the Akure division of the court for transmission to Owo. Despite several letters written to the Chief Registrar of the Court all efforts to trace the missing processes were unsuccessful. As a result of this impasse the applicants have been unable to take any steps towards prosecuting the appeal. It is their contention that the respondents have taken advantage of the situation and engaged a surveyor who has started delineating the land in dispute into plots. In the absence of the case file and record of proceedings the applicants have also been unable to proceed with their application pending before this court for an order of interlocutory injunction to restrain the respondents from destroying the res or foisting a fait accompli on this court.
The respondents in their counter affidavit contend that they have not been served with any notice of appeal in respect of the judgment of the lower court; that there is no pending order of injunction restraining them, as the successful party from dealing with the land in dispute; that the averments regarding the missing case file and records are untrue and that the applicants have not been diligent. The 2nd respondent averred that he confirmed from the registry of the trial court that the record of proceedings is not missing as alleged; it is also averred that some of their key witnesses who testified at the trial have since died.
Arguing in support of the application in his written address, learned counsel for the applicants referred to Section 15 of the Court of Appeal Act and submitted that with the wide powers conferred on this court by the said provision, this court can grant the order sought. He relied particularly on paragraphs 5-29 of the supporting affidavit and the exhibits attached thereto. He submitted that the Chief Registrar of the Ondo State High Court failed to respond to letters (Exhibits D – G) written to him regarding the missing record. He submitted that in a situation such as this where the applicants are unable to compile and transmit the, record of proceedings to the Court of Appeal due to no fault of theirs this court can make an order remitting the case back to the trial court to be heard de novo. He relied on several authorities in support of this proposition: First Bank Plc. Vs. May Medical Centre Ltd. (2001) FWLR (48) 1355 H. (2001) 9 NWLR (717) 28 @ 39 E – F; System Metal Ind. Ltd. Vs Ehizo (2003) NWLR (820) 460 @ 476 – 477.
In reaction to the counter affidavit, learned counsel referred to paragraphs 10 and 11 thereof where it is averred that no exhibits were tendered in the case and that the record is not missing and submitted that in order to convince the court the respondents ought to have exhibited the record. He noted that in paragraph 10 of the counter affidavit the name of the person who informed them that the record was not missing was not stated. He urged the court to strike out the paragraph for offending paragraphs 87 – 89 of the Evidence Act. He stated that there is no averment to show that the respondents confirmed the existence of the record from either Mr. Orimoloye, the registrar of the Owo division of the lower court, or the Chief Registrar, both of whom were specifically mentioned by the applicants in their supporting affidavit. He urged the court to strike out paragraphs 10 and 11 of the counter affidavit. Urging the court to discountenance paragraphs 12, 13 and 14 of the counter affidavit he submitted that the parties’ case files could not be a substitute for the court’s record of what the’ learned trial Judge saw and heard at the trial; that it is not only the respondents who would suffer if an order of re-trial is made and that the respondents did not name any of their witnesses who had allegedly died.
He submitted that the applicants are entitled to exercise their right of appeal and where the records are lost due to the fault of the lower court the proper course of action is for an appellate court to order a retrial. He relied on: Haastrup (W.A.) Ltd. Vs Welding Eng. Co. (Nig.) Ltd (1999) 9 NWLR (470) 92 @ 99 E – H &,100 A – C,; Engineering Enterprise of, Niger Contractor Co. of Nig. – Vs A.G. Kaduna State (1987) 2 NWLR (57) 381; Akaide Vs The State (1996) 8 NWLR (468) 525 @ 531 : 532. He urged the court to grant the application and to order the parties to file copies of their originating processes and pleadings before the lower court before another Judge.
In reply to the submissions of learned counsel for the applicants, learned counsel for the respondents relied on the counter affidavit filed. He raised a single issue for determination thus:
“Whether the applicants have placed sufficient materials before the court for the court to rightly direct that suit no. HOW/4/2001 be heard de novo by another Judge.”
He relied on the case of Okomalu Vs Akinbode (2006) All FWLR (314) 211 @ 231 A – B in support of his contention that the discretionary power of the court to make an order for retrial must be exercised with utmost caution, judicially and judiciously, bearing in mind the fact that litigation is a very costly venture, Referring to the judgment of the lower court (Exhibit A to the supporting affidavit) he submitted that the averment that the case file, exhibits and record are missing is untrue as no exhibits were referred to throughout the judgment. With regard to the alleged missing records, he submitted that the applicants failed to show that any effort was made to contact the learned trial Judge, who is now the Chief Judge of the State on the situation. He referred to the case of First Bank Plc Vs May Medical Clinics (supra) relied upon by learned counsel for the applicants wherein His Lordship, Belgore, JSC (as he then was) opined that the learned trial Judge and the registrars and clerks of the court handling the manuscript ought to have been involved in swearing to affidavits regarding the incomplete record. He submitted that there ought to have been at least a letter emanating from the registrar of the court confirming that the record is missing. He contended that the absence of such confirmation in the circumstances of this case is fatal to the application. With regard to the missing case file, he submitted that the parties could supply their own copies of the processes filed for the purpose of compilation of the record. He queried on what processes the trial would be heard de novo in the absence of the case file and submitted that the court would not make a vague or unenforceable order. He relied on: Aji vs. Chad Basin Devt. Auth. (2004) ALL FWLR (237) 424 @ 443 F.
In reply on points of law, learned counsel for the applicants argued that the issue formulated by the applicants does not arise from the grounds of the application. He urged the court to discountenance the submissions in respect thereof. Alternatively he contended that the court can make the order sought even where there is no letter from the registrar or trial Judge confirming that the record is missing. He relied on the case of: F.B.N. Plc. V. May Medical Centre Ltd. (supra). He submitted that where it is proved that a letter was received and the recipient failed to react thereto, he is deemed to have admitted its contents. He referred to: Zenon Petroleum & Gas Ltd. v. Idrissiyya Nig. Ltd. (2006) ALL FWLR (312) 2121 @ 2140 D – E; (2006) 8 NWLR (982) 221 @ 248 A – F; Trade Bank Plc. Vs. Chami (2004) ALL FWLR (235) 118 @ 166 C – E. He submitted that the case of Aji vs. Chad Basin Devt. Auth. (supra) does not apply to the circumstances of this case.
I have given careful consideration to the submissions of both learned counsel, the affidavits filed and the exhibits annexed to the supporting affidavit. The applicants’ herein are seeking the exercise of the court’s discretion in their favour.
It was held in the case of M.V. Lupex Vs N.O.C. & S. Ltd. (2003) 15 NWLR (844) 469 thus:
“An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.”
In the exercise of discretion the court must act judicially and judiciously having regard to the facts and circumstances of the case and the materials placed before it.

Sections 241 & 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) confer the right of appeal with or without leave of court against decisions of superior courts of record on an aggrieved person. Once his grounds of appeal are competent every appellant has a right to have his appeal heard. See: Engineering Enterprises Ltd. Vs A.G. Kaduna State (1987) 2 NWLR (57) 381. The record of proceedings, including the exhibits and judgment of the lower court are essential to the just determination of an appeal. Order 8 Rules 1, 4 and 18 of the Court of Appeal Rules 2011 provides:
“1. The registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the court.
4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.
18. If the registrar has failed to compile and transmit the records under Rule 1 and the Applicant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the court to dismiss the appeal.”
The above provisions of the Act underscore the importance attached to the compilation and transmission of the record of appeal to this Court. It is also evident that the duty of compilation and transmission of the record lies in the first instance with the registrar of the lower court. In case of default it is mandatory for the appellant to compile and transmit same. Whether the record is complied by the registrar of the trial court or the appellant, the record to be compiled must consist of the various processes filed as well as the lower court’s record of proceedings, which are in that court’s custody. Documents tendered in evidence may be forwarded to the appellate court or copied into the record.
In the instant case, it is the applicants’ contention that the case file containing all the processes filed in the suit before the lower court including the record of proceedings i,e. the Judge’s notes are missing and all efforts to locate them have proved abortive. Contrary to the submission of learned counsel for the applicants, I am of the view that learned counsel for the respondent was correct when he stated that the issue for determination in this application is whether the applicants have placed sufficient material before the court to warrant the grant of the order sought.
Earlier in this ruling I summarized the facts that gave rise to this application as averred in the supporting affidavit. Annexed to the application are the certified copy of the judgment of the lower court dated 13/3/09 (Exhibit A), certified true copy of the notice of appeal (Exhibit B) dated 23/3/09, a copy of a motion on notice dated 25/3/09 filed before the Owo Division of the Ondo State High Court seeking an order of stay of execution of the judgment and a copy of a motion on notice dated 24/5/2010 (Exhibit F) filed before this court seeking an order of injunction against the respondents. What these processes establish is the fact that judgment was delivered by the court below; that the appellants were dissatisfied with the decision and filed a notice of appeal to challenge it and further filed applications for stay of execution and injunction pending the determination of the appeal. Exhibits D, E and G are letters addressed to the Chief Registrar of the Ondo State Judiciary by learned counsel for the applicants complaining about the missing case file and record of proceedings. Exhibits E and G in particular are endorsed as having been received by the Chief Registrar. There are no responses to any of the letters.
I have considered the averments in the counter affidavit. The averments therein constitute a general denial of the averments in the supporting affidavit and no more. It is averred in paragraph 10 thereof as follows:
“10. That I know that the applicant have not exercised due diligence in this case and are not telling the truth as the record of the court alleged to be missing is not actually missing as confirmed by us from the registry of the trial court.”
Now this is a very weighty statement, which ought to be supported by credible evidence. As rightly submitted by learned counsel for the applicants the law is that he who asserts must prove. See sections 131 – 133 of the Evidence Act 2011. The applicants have shown by the documents exhibited to their affidavit in support that they have made concerted efforts to trace the case file and record of proceedings in respect of this appeal. The Chief Registrar failed to respond to their plea for assistance. The burden thus shifts to the respondents to disprove the averments. It is not enough for the respondents to merely aver that the record is not missing. The averment that they confirmed from the registry of the trial court that the record is not missing is of no evidential value. The name of the registrar of court who supplied the information, and when and where the information was supplied is not stated nor is there any iota of evidence to suggest that indeed the record has been found. It is pertinent to observe that the record of proceedings consists not only of the processes filed in the case but also the Judge’s notes, which are crucial in determining his assessment of the evidence before him based on the opportunity of seeing and hearing the witnesses first hand.
In the instant case it has proved impossible for the applicants to proceed with their appeal. In similar circumstances, the Supreme Court in First Bank Plc Vs May Medical Clinics (2001) 9 NWLR (717) 28 @ 39 E – F held thus:
“As it is now, it seems the appeal in the lower court could not be prosecuted on its merit because all necessary documents could not be available before it, It is in the interest of justice for the Court of Appeal to make all necessary orders so that the case can be resurrected. If the manuscript is missing the lower court will be unable to fairly hear the appeal. The best it can do is to order hearing de novo.”
It is correct, as submitted by learned counsel for the respondents that His Lordship, Belgore, JSC (as he then was) expressed the view in First Bank Plc Vs May Medical Clinics (supra) that the learned trial Judge and registrars and clerks of court ought to have deposed to affidavits where the records are either incomplete or alleged to be at variance with what happened in open court. However in that case both parties agreed that the manuscript was missing. The issue in contention was where to place the blame: on the court officials or learned counsel for the appellant. In the present case, I am of the considered view that the applicants have placed sufficient and credible evidence before the court to show that the records are indeed missing and efforts to trace them have proved abortive.
An order for a retrial is never made lightly by the court. The Supreme Court in: Okomalu Vs Akinbode (2006) ALL FWLR (314) 211 @ 229 – 231 H – G exhaustively considered the circumstances in which a retrial could be ordered in a civil matter. Niki Tobi, JSC stated inter alia that litigation being a very costly venture, courts of law should order a retrial only in deserving cases. He stated that an appellate court would not order a retrial to enable parties have a second bite at the cherry or to repair their case and come back in full force to present a fresh case. Nor will a retrial be ordered to compensate a losing party. His Lordship went further to state that on the other hand, in deserving cases, appellate courts should not take into consideration the cost of litigation because that must succumb to doing justice in the particular matter.
There is no doubt that both parties would suffer in terms of valuable time and costs in the event that an order for retrial is made. It is also true that some vital witnesses might have passed on in the interim. For these reasons I am of the considered opinion that it would be in the particular interest of the respondents, who were the successful party at the court below that the appeal be heard on its merits. If indeed the record is available as alleged, they owe a duty to the court to present cogent proof of that fact by exhibiting relevant processes to their counter affidavit. In the absence of any evidence to the contrary, the court has no option than to believe the assertion of the applicants that the case file and record of proceedings cannot be found.
Where an appellant has done all that is required of him for the prosecution of his appeal and it is frustrated due to no fault of his, the court has a duty to exercise its judicial powers in favour of enabling him to exercise his constitutional right of appeal. See: Akaide vs. The State (1996) 8 NWLR (468) 525 @ 530 – 531 H – G; System Metal Ind. Ltd. Vs. Ehizo (2003) 7 NWLR (820) 460; Haastrup (W.A.) Ltd. Vs. Welding Eng. Co. (Nig.) Ltd. (1996) 9 NWLR (470) 92 @ 98 E – F.
The effect of all that I have said above is that I am of the view and I do hold that the applicants herein have satisfied the court that this is a proper case in which to exercise its discretion in their favour. The application has merit and is accordingly granted as prayed. It is hereby ordered that Suit No. HOW/4/2001 before the Ondo State High Court be heard de novo by another Judge of that court. The suit shall be granted an accelerated hearing. There shall be no order for costs.

CHINWE E. IYIZOBA J.C.A.: I read before now the ruling just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the ruling. Justice demands that the suit be heard de novo, the applicant having adduced satisfactory affidavit evidence that his appeal could not be prosecuted because the case file, and the entire record of proceedings in the lower court are missing. I abide by the consequential orders in the ruling including the order as to costs.

MOORE A. A. ADUMEIN, J.C.A.: I read before now the lead ruling delivered by my learned brother, KEKERE-EKUN, JCA. I agree that the Appellants/Applicants have placed sufficient material facts before the court to have its discretion exercised in their favour.
It is for the foregoing reasons and the very elaborate reasons in the lead ruling that I hold that the application is meritorious and I also grant it as prayed.
I abide by the orders in the lead ruling, including the order that the parties shall bear their respective costs.

 

Appearances

O.S. Aderibigbe Esq., For Appellant

AND

O.F. Aladedutire Esq., For Respondent