KANO STATE INVESTMENT & PROPERTIES LIMITED v. ALHAJI ABUBAKAR BALA MANZO
(2014)LCN/7290(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of June, 2014
CA/K/323/2012
RATIO
MEANING OF WORDS; DEEM; THE MEANING OF DEEM
The Black’s law Dictionary, 9th Edition defines the word “deem” to include “To treat (something) as if (1) it were really something else, or (2) it has qualifies that it does not have (although the document was not in fact signed until April 21, it explicitly states that it must be deemed to have been signed on April , 14.” It was further stated that “Deem” has been traditionally considered to be a useful word when it is necessary to establish a Legal Fiction either positively by “deeming” something to be what it is not or negatively by ‘deeming’ something not to be what it is.” See also the case of Mrs Ethel Onyemaechi David Orji vs. Dorji Textiles Mills (Nig) Ltd (2009) 18 NWLR Part 1173 page 467 where Tobi, J.S.C., dwelt a bit on the word “deem” and reiterated that it means to treat a thing as being something that it is not or as possessing certain qualities that it does not possess. per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
APPEAL: ENTERING AN APPEAL; WHEN IS AN APPEAL SAID TO BE ENTERED
In SPDC Nigeria Limited vs. Amadi, Musdapher, J. S. C. (As he the was) expressed that an appeal is said to be entered when all the records of appeal is transmitted to the Supreme Court and the matter is entered in the cause list. See ESIRI vs. IDIKA (1987) 4 NWLR (Pt 66) 503, LAZARD BROS VS. MIDLAND BANK LTD (1933) @ 289. But see OLORUNYOLEMI VS. AKHAGBE (2010) 8 NWLR (Pt.1195) 48 and Order 8 Rule 10(5) 8 of the Supreme Court Rules. per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
Justices
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
KANO STATE INVESTMENT & PROPERTIES LIMITEDAppellant(s)
AND
ALHAJI ABUBAKAR BALA MANZORespondent(s
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Lead Ruling): The Respondent filed a Motion on Notice on 8/4/13 praying this Court for the following; (a) an order extending the time within which he may compile and transmit additional record of appeal and (b) an order deeming the additional record already compiled and transmitted to this Court as having been properly compiled and transmitted. The application was predicated on five grounds, and it is supported by an affidavit of four paragraphs deposed to by one Tina Emmanuel, the Litigation Secretary in the Law Firm of Ibrahim Umar & Co. The Appellant filed a counter-affidavit of six paragraphs with some annexures attached thereto opposing the application. The parties, via their Counsel filed their written addresses which they adopted on the date of hearing the application.
The sole issue submitted by the Applicant for determination in this application is, “Given the antecedent of this case whether the documents numbered I – VII in the proposed additional of appeal, i.e., the Amended Statement of Claim is part of the trial Court’s record.” The Applicant’s Learned Counsel, U. A. Yakasai Esq, explained that on 13/10/2009, Kano State Investment & Properties Limited was joined as the 1st Defendant by the Order of the Lower Court made pursuant to the application presented to the Court by the Applicant’s Counsel after the name of the initial 1st Defendant was struck out. Consequent to the order for joinder, the Applicant amended its Statement of Claim reflecting the name of the new 1st Defendant.
He referred to the document numbered I-VII of the proposed additional record, i.e., the amended statement of claim reflecting the joinder of the Appellant. It was filed in Court after its joinder and served on the Defendants including the Appellant through its Counsel, at the Kano State Ministry of Justice as shown vide the proof of service at page VII of the propose additional records of appeal. The Appellant/Respondent reacted to the said Amended Statement of Claim by filing its Witness Statement on Oath dated 07/04/2010 reflecting the joinder i.e. document numbered VIII-XI of the proposed additional record of appeal. It informed the Lower Court of the development through its Counsel at pages 23/24 of the record already transmitted and continued to be represented throughout the trial. He also drew attention to paragraph 5 of the Appellant’s counter affidavit dated 23rd July 2013 wherein it admitted that the said Witness Statement on Oath dated 7/4/2010 i.e. document numbered VIII-XI of the proposed additional record, formed part of the Lower Court’s record.
Learned Counsel strongly argued that any document filed in the Court in respect of a matter during its pendency in the Court, forms part of the Court’s record. He, then stressed that the document numbered I-VII of the proposed additional record i.e. the Amended Statement of Claim was filed at the trial Court during the pendency of the suit and it formed part of the trial Court’s record. He further emphasised that the document having been filed in Court during the pendency of the suit and certified by the Registrar of the Court formed part of the record. Learned Counsel submitted that the allegation put up by the Appellant/Respondent regarding the document in question lacks proofs, the burden squarely rests on it and it has failed to discharge the same. There is no single evidence put forward to dispute the factual existence of the document in the record of the trial Court or challenge its certification by the Registry of the Court. He further submitted that the entire grounds of objection squarely centered on the propriety of the document in issue as part of the record, and that can be reserved for address in the Appellant’s Brief in respect of the appeal proper.
He relied on Emeka Nwana vs. Federal Capital Development Authority (2007) 4 SCNJ 433; Chief Thomas Ekpenupolo and Others vs. Godwin Endremoda and Others (2009) 3 SCNJ 77; Court of Appeal Rules 2011; and the Letter written by O.A. Dada & Co. dated 22/11/2012 at page XV of the proposed additional records, and submitted it is the duty of the Court to ensure that records are complete before hearing the appeal. He stressed that without the additional record, the transmitted record before the Court is incomplete and then urged this Court to grant the application.
The Appellant/Respondent for its part, equally raised one issue for determination that is to say; ‘whether in view of the materials placed before the Court by the parties, coupled with the contents of the record of Appeal already transmitted the Respondent established before this Honourable Court that the purported Amended Statement of Claim paged (i) – (vii) attached to the Application was filed before the Lower Court to warrant same being compiled and transmitted as additional record of Appeal.” Counsel emphatically stated there was no order made by the Lower Court after the joinder of the Appellant for amendment of the Applicant’s Statement of Claim to reflect the said joinder. Therefore, in the absence of any order of the Lower Court permitting the amendment of the Statement of Claim, the document i.e., the Amended Statement of Claim could not have formed part of the records of the Lower Court.
Learned Counsel then made reference to the cases of Government of Cross-River vs. Assam (2008) All FWLR Part 418 page 351; Dickson vs. Okoi (2003) FWLR Part 178 page 1108; and Onah vs. Okenwa (2011) All FWLR Part 565 page 357, and submitted that any document that was not properly placed before a Lower Court shall not form part of the record of appeal.
It must be emphasised that joinder is the uniting of parties or claims in a single lawsuit, i.e., the union in one law suit of multiple parties who have the same rights or against whom rights are claimed as co-plaintiffs or co-defendants. A person cannot be added as a defendant unless that person, jointly with the other defendants, was liable for the entire demand. There must be an order of the court permitting joinder.
In the instant case, there was an order for joinder of the 1st Defendant made by the Lower Court on 13/10/09. The Applicant filed a Motion dated 26/8/09 before the Lower Court praying for (1) an order for an additional defendant in the action to be added in the name of Kano State Investment and Properties Ltd; (2) an order of making the added Defendant as 1st defendant in the suit and (3) an order deeming all processes already filed in the action as having been duly and properly filed and served with the present addition.
The Lower Court then, on 13/10/09 granted the application as prayed. Following the order, the Plaintiff filed an Amended Statement of Claim reflecting the name of the new 1st Defendant, i.e., Kano State Investment and Properties Ltd. Even though no consequential order was made by the Lower Court for the processes already filed to be amended to reflect the name of the new 1st Defendant, the Lower Court granted the Applicant’s prayers for the order marking Kano state Investment and Properties Ltd as the 1st Defendant in the suit, and, deeming all processes already filed as having been duly and properly filed and served with the present addition. By granting those prayers, the processes were deemed as having been duly filed with the name of the first Defendant therein. It, therefore, implies that all the processes had been regarded or were treated as if the name of the 1st Defendant had been reflected therein. It was pursuant to that the Applicant filed the said Amended Statement of Claim.
The Black’s law Dictionary, 9th Edition defines the word “deem” to include “To treat (something) as if (1) it were really something else, or (2) it has qualifies that it does not have (although the document was not in fact signed until April 21, it explicitly states that it must be deemed to have been signed on April , 14.” It was further stated that “Deem” has been traditionally considered to be a useful word when it is necessary to establish a Legal Fiction either positively by “deeming” something to be what it is not or negatively by ‘deeming’ something not to be what it is.”
See also the case of Mrs Ethel Onyemaechi David Orji vs. Dorji Textiles Mills (Nig) Ltd (2009) 18 NWLR Part 1173 page 467 where Tobi, J.S.C., dwelt a bit on the word “deem” and reiterated that it means to treat a thing as being something that it is not or as possessing certain qualities that it does not possess.
He explained that a deeming provision of law is intended to enlarge the meaning of a particular word or includes matters which otherwise may or may not fall within the main provision. When a person is deemed to be something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament requires him to be treated as if he were. He further stated that the word stands in the place of a reality. It follows, therefore, by the order of the Lower Court deeming all the processes filed and served as if the name of the present 1st Defendant was therein, it means that the name of the 1st Defendant was by that order treated as if it were already stated or printed in the processes. Since by the order of the Lower Court, the name of the 1st Defendant was treated as if it were originally in the processes, the Applicant was then at liberty to file a new process to reflect the name of the 1st Defendant that had been deemed to have been in the processes already filed and served.
Be that as it may, Order 8 Rule 6 of the Court of Appeal Rules, 2011, provides that where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional record. Then, Rule 7 stipulates that every record of appeal shall contain (a) the index, (b) a statement giving brief particulars of the case and including a schedule of the fees paid; (c) copies of documents settled and compiled for inclusion in the record of appeal; and (d) a copy of the Notice of appeal and other relevant documents filed in connection with the appeal. Rule 8 prescribes that in compiling the record, the Registrar or the Appellant shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal… Rule 9 says that every record or additional record of appeal compiled by a party to an appeal must be certified by the Registrar of the Lower Court.
What is deductible from all these provisions is that documents relevant to the subject matter of the appeal are the ones to be compiled and transmitted. In the instant application, the record being sought to be compiled and transmitted out of time as additional records by the Respondent were all certified by the Registrar of the Lower Court. The Amended Statement of Claim attached thereto as an additional record was filed on 23/2/10 even though dated 29/4/2009. The order for joinder of the Appellant by the Lower Court was made on 13/10/2009, and as I earlier stated, it was certified by the Registrar of the Lower Court as one of the processes filed before the Lower Court in connection with the subject matter of the appeal before this Court. I must observe that the issue whether it was amended with or without the leave of the Lower Court is immaterial at this stage of compilation and transmission of records of appeal. The question is, was it filed in connection with the suit the subject matter of this appeal? This I had already answered in the affirmative.
See Olorunyolemi v. Akhagbe (2010) 8 NWLR (Pt.1195) 48, where the Supreme Court on the importance of record of appeal held, per Onnoghen, J.S.C., that every material fact, evidence or document tendered in the proceeding at the High Court and relevant to the determination of the issues in controversy between the parties on appeal, should be transmitted as of necessity, to the appellate court as there can be no consideration of any appeal by an appellate court, or an objection thereto unless and until there is before the court a record of appeal duly prepared and transmitted by the Registrar of the lower court or by the appellant himself upon the leave of the court being sought and obtained. The rationale is that though an appeal is a re-hearing of the matter, the re-hearing in this case is by considering the case based on the printed record before the appellate court, which includes the exhibits tendered therein.
In SPDC Nigeria Limited vs. Amadi, Musdapher, J. S. C. (As he the was) expressed that an appeal is said to be entered when all the records of appeal is transmitted to the Supreme Court and the matter is entered in the cause list. See ESIRI vs. IDIKA (1987) 4 NWLR (Pt 66) 503, LAZARD BROS VS. MIDLAND BANK LTD (1933) @ 289. But see OLORUNYOLEMI VS. AKHAGBE (2010) 8 NWLR (Pt.1195) 48 and Order 8 Rule 10(5) 8 of the Supreme Court Rules.
In view of the foregoing reasons, I find this application meritorious and it is hereby granted. The Applicant is hereby given an extension of time to compile and transmit the additional records of appeal in suit No.K/610/2008 from the Kano State High Court to this Court in respect of the appeal pending herein. There is no proof that apart from the copy of the additional records attached to the affidavit in support of this Motion, separate and fresh copies of the same had been complied and transmitted to this Court to have warranted the granting of the second prayer. Accordingly, the second prayer is hereby struck out. The Applicant shall have 15 days from the date hereof to compile and transmit the said additional record of appeal to this Court. There will be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Orji – Abadua, J.C.A., which I adopt as my judgment in the appeal.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead Ruling just delivered by my learned brother ORJI-ABADUA JCA. I adopt the Ruling as my own in this appeal.
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Appearances
Y. L. Ibrahim Esq; with Omokayode A. Dada Esq.For Appellant
AND
U. A. Yakasai Esq.For Respondent
