ISA’AC GAVOH & ORS v. JOHNSON AKWAI
(2019)LCN/12631(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/YL/59/2016
RATIO
APPEAL: WHERE THE CASE HAS AN INCOMPLETE RECORD
“No Court is permitted to hear an appeal on incomplete record. This Court in the unreported judgment in Appeal No. CA/J/201/2016 in Okwara vs. Okwara delivered on 12th February, 2018 per Omoleye PJCA adroitly stated the position of the law thus: ‘It is without equivocation that I reiterate again sequel to my above elucidation that, it is a legal sacrilege for an appellate Court to adjudicate upon an appeal in the face of an incomplete record of appeal for such an appeal in that situation can best be described as inchoate…'” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. ISA’AC GAVOH
2. CLEMENT SHADI
3. SAMUEL SHADI
4. GIDEON SHADI Appellant(s)
AND
JOHNSON AKWAI Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment delivered on the 7th July, 2015 in the High Court of Taraba State sitting in Jalingo.
The Respondent was the Plaintiff while the Appellants were the Defendants/counter claimants in the High Court (Court below).
The Respondent claimed for a declaration of title to land, perpetual injunction and other reliefs against the Appellants.
The Appellants on their part counterclaimed against the Respondent for a declaration that they are entitled to a statutory right of occupancy to the parcel of land measuring 576.45 square metres situate at Mayo Dasso and that the Respondent is a trespasser among other reliefs.
The Respondent’s four witnesses adopted their written addresses and were cross examined.
The Appellants called no witness and the Court below in a reserved judgment entered judgment in favour of the Respondent.
The Appellants approached this Court by an original notice of appeal dated and filed on 10th September, 2015. The notice of appeal was amended with the leave of the Court granted on 12th June, 2017.
The amended notice of appeal dated 13th March, 2017 filed on 17th March, 2017 was deemed duly filed and served on 12th June, 2017. It contains nine grounds of appeal.
From the nine grounds of appeal, the Appellants formulated the following three issues for determination.
ISSUE NO. 1
Whether the claims of the Respondent as well as the entire proceedings and resultant judgment of the trial Court are competent in law?
Distilled from Grounds One and Five of the amended Notice of Appeal.
ISSUE NO. 2
Whether it was proper for the learned Judge to have granted the claims of the Respondent rather than dismissing same, regard being had to the state of Respondent?s pleadings as well as the nature of evidence he adduced at the trial?
Distilled from Grounds Two, Six, Seven and Eight of the amended Notice of Appeal.
ISSUE NO. 3
Whether the learned trial Judge was right in law to have held that the Appellants failed to adduce evidence in their defence and that the evidence adduced by the Respondent is unchallenged and credible?
‘Distilled from Grounds Three, Four and Nine of the amended Notice of Appeal.’
The Respondent adopted the three issues formulated by the Appellants.
On issue 1, learned counsel for the Appellant submitted that the suit before the Court below was incompetent and the Court below had no jurisdiction to entertain it because the writ of summons did not contain the place of abode of the Respondent as Plaintiff.
On issue 2, it was submitted that because the Respondent failed to plead that his grandfather was the person who first deforested the land in dispute, whatever oral evidence adduced by him to the effect that it was his grandfather who first deforested the land in dispute and exercised original acts of ownership over the land goes to no issue and ought to have been discountenanced by the Court below. The Court was referred to Abimbola vs. Abatan (2001) FWLR (Pt. 46) 989 at 1003.
The Respondent, it was submitted, failed to plead and prove how the land was founded. The Court was referred to Anyanwu vs. Mbara (1992) 5 NWLR (Pt. 242) 386.
The Court below, it was submitted, erred in law when it allowed the claim of the Respondent.
On issue 3, learned counsel for the Appellants submitted that the Court below erred when it held that the Appellants did not adduce evidence in their defence when they elicited evidence from the cross examination of PW1, PW2 and PW3. The Court was referred to Akomolafe vs. Guardian Press Ltd (2010) 3 NWLR (Pt. 1181) 338 at 351.
It is not correct, it was submitted, for the Court below to regard evidence adduced by the Respondent as unchallenged.
In any case, the claim of the Respondent, it was submitted, was for declaratory reliefs among other reliefs. The Respondent therefore had to rely on the strength of his own case. The Court was referred to CPC vs. INEC (2011) 18 NWLR (Pt. 1279) 493.
Learned counsel for the Respondent submitted on issue 1 that there was substantial compliance with the Rules of Court as the writ of summons had the name of the Respondent, the name and address of the solicitor through whom the Respondent sued.
On issue 2, it was submitted by learned counsel for the Respondent that the Respondent at the Court below relied on traditional history in proof of his title. The Court was referred to paragraphs 4, 5 and 6 of the statement of claim.
On issue 3, learned counsel for the Respondent submitted that the Court below was right to have held that the Appellants failed to adduce evidence in their defence and that the Court below was entitled to find for the Respondent.
It was submitted that the Court below evaluated the evidence before it and was entitled to believe the evidence led by the Respondent.
This appeal was heard on the 30th October, 2017.
While preparing the judgment the Court noticed at page 38 of the record that PW4 adopted his written statement on oath dated 30th July, 2013. But that statement on oath is not in the record.
On 24th January, 2018 when the attention of counsel for the parties was drawn to the incomplete record, learned counsel for the Respondent stated that the statement on oath of the PW4 was frontloaded. Learned counsel for the Appellants then undertook to go to the Registry and look for the statement on oath of the witness.
By the 16th January 2019, the statement on oath of the PW4 had not been found. So the record is still incomplete. Learned counsel for the Appellants told the Court on 16th January, 2019 that they were still not able to get the complete record.
No Court is permitted to hear an appeal on incomplete record. This Court in the unreported judgment in Appeal No. CA/J/201/2016 in Okwara vs. Okwara delivered on 12th February, 2018 per Omoleye PJCA adroitly stated the position of the law thus:
‘It is without equivocation that I reiterate again sequel to my above elucidation that, it is a legal sacrilege for an appellate Court to adjudicate upon an appeal in the face of an incomplete record of appeal for such an appeal in that situation can best be described as inchoate…’
The Supreme Court per Tobi JSC in Okochi vs. Animkwoi (2003) 18 NWLR (Pt. 851) 1 stated thus:
‘As appellate Court hears an appeal on the records before it, it must ensure that 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…’
As learned counsel for the Appellants is unable to get a complete record since 24th January, 2018 when he undertook to look for the statement on oath of the PW4 this appeal with No. CA/YL/59/2016 Isa?ac Gavoh & 3 Ors vs. Johnson Akwai is hereby struck out.
Respondent is awarded N50, 000 costs which shall be paid by the Appellants.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal, just delivered by my learned Brother, James Shehu Abiriyi, JCA.
I agree that this Court is robbed of the requisite jurisdiction to adjudicate upon this appeal, its record being sketchy. Therefore, I also strike out the appeal and abide by the order of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances:
J. A. Oguche, Esq.For Appellant(s)
I. C. OsujiFor Respondent(s)
