MR. GROW WENIMOYE & ORS v. MR. JOSEPH BOLEIGHA & ORS
(2019)LCN/12791(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2019
CA/PH/792/2013
RATIO
JURISDICTION: WHERE THE COURT LACKS JURISDICTION
“In the absence of a complete Record of Appeal, the jurisdiction of this Court has not been fully galvanised and the Court cannot pronounce on the merit of the appeal. Where the Court lacks jurisdiction in any particular matter, the proper order is to strike out the matter. See OKOLO VS UBN LTD. (2004) 3 NWLR (PT. 859) 87; TINUBU VS KHALIL & DIBBO TRANS. LTD. (2000) 11 NWLR (PT. 677) 171.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. MR. GROW WENIMOYE
2. MR. BENBENSON TEKEREBO
3. MR. EBIKOWEI EGBE
4. MR. EBIKISE EGBE
5. MR. BEKE KAI
(For themselves and on behalf of members of Bilawari Family of Ayakoroama, Community in Opokuma Clan in Kolokuma/Opokuma Local Government Area of Bayelsa State.) – Appellant(s)
AND
1. MR. JOSEPH BOLEIGHA
2. MR. TEDI BOLEIGHA
3. MR. AYAKORO BOLEIGHA
4. MR. BINALAYEFA BOLEIGHA
5. MR. BODESOWA BOLEIGHA
6. MR. KEME BOLEIGHA
7. MR. AMOS BOLEIGHA
8. MR. SMART TARABINA
9. MR. SAMUEL BOLEIGHA
10. MR. AYAKPE BOLEIGHA
11. MR. HOLDEN TARABINA
12. MR. KOJO MIESEIGHA
(For themselves and on behalf of members of Abuwari Community in Opokuma Clan in Kolokuma/Opokuma Local Government Area of Bayelsa State.) – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Bayelsa State sitting at Yenagoa delivered on 13/2/13 in Suit No. KHC/4/2005 which suit was initiated by the Appellants as the Plaintiffs against Respondents as the Defendants. By the Claimants’ Amended Writ of Summons dated 22/2/07 at pages 1 – 4 of the Record of Appeal and the Further And Better Amended Statement of Claim dated 21/4/09, the plaintiffs had claimed the following reliefs against the Defendants:-
1. A DECLARATION that the Plaintiffs are the owners of, and the people entitled to the right of occupancy in and over all that piece or parcel of land known and called Seibou lying situate and being at Seibou bush in Ayakoroama town in Opokuma Clan Kolokuma Opokuma Local Government Area of Bayelsa State.
2. AN ORDER of Perpetual Injunction restraining the Defendants whether by themselves their heirs, privies, agents and servants from trespassing or further trespassing to or from interfering with the Plaintiffs right in and over the piece or parcel of land known as and called Seibou lying situate and being at seibou bush in Ayakoroma Town, Opokuma Clan, Kolokuma/Opokuma Local Government Area of Bayelsa State which said piece or parcel of land is shown and verged red in the plaintiffs survey plan aforesaid.
3. The sum of N10,000,000.00 (Ten Million Naira) only being and representing damages for trespass when on or about the 15th day of September 2005, and other days the defendants broke and entered into parts of the plaintiffs land called seibou at seibou bush in Ayakoroama Town Opokuma clan, Kolokuma/Opokum Local Government Area of Bayelsa State.
In their Further And Better Amended Statement of Defence filed on 6/7/2010, the Defendants denied the allegations of fact in the Statement of claim and proceeded to seek reliefs as counter claim thus:-
1. A declaration of title in favour of the Defendants in respect of the parcel of land verged RED in the Defendants survey plan attached.
2. An Order of perpetual injunction restraining the claimants their heirs, agents and privies from tampering, entering into or dealing with the afore described land of the Defendants.
At the conclusion of pleadings the matter went to trial and in the afore mentioned judgment, the lower Court order a non-suit because it was not satisfied that any of the parties was entitled to judgment. The plaintiffs who were dissatisfied with the judgment gave their Notice of Appeal containing three grounds of appeal while the Defendants who were also dissatisfied with the judgment filed a Notice of Cross Appeal. The Appellants Brief filed on 11/09/18 was deemed filed on 26/9/18 while the Respondents/Cross Appellants’ Brief was filed on 12th October, 2018, and the Cross Respondents Brief was filed on 11/9/18 but deemed filed on 26/9/18.
In the Appellant’s Brief, the two issues set down for determination are:
1. Did the Appellants clearly identify their land in dispute wherein the cause of action arose?
2. Was the learned trial Judge right in law when he rejected a document which contains the history of the parties and which deals with fact in issue in the case?
The Respondents/Cross Appellants also raised the two issues formulated by the Appellants but in addition formulated two issues as follows:
1. Whether the Lower Court was right to non suit the Appellants after finding as a fact that the Appellants have not identified the land in dispute? And or what is the effect where the Court finds as a fact that Appellants have not identified the land?
2. Whether the lower Court was right to non suit the Respondents/cross Appellants without giving reason for such decision.
In the Cross Respondent?s Brief the lone issue raised is a refined version of the first issue in the Appellant?s brief thus;
Whether the learned trial Judge was right in holding that the Appellants did not properly identify the land in dispute and consequently non-suited them.
All the Briefs were adopted and relied upon by the respective parties at the hearing of the appeal. The issues raised by the appellants in their Appellants’ Brief is adopted for the purpose of the appeal while the two issues formulated by the Respondents/Cross Appellants are adopted for the purpose of the Cross Appeal.
It is quite clear from the records of appeal particularly from the proceedings at the lower Court that oral and documentary evidence were adduced at the trial. Some documents were tendered and admitted as Exhibits but my enquiry from the Exhibit keeper in this Court however reveals that the Exhibits have not been transmitted from the lower Court to this Court, the meaning of which is that the records transmitted are incomplete. See THE SHELL PETROLEUM CO. OF NIGERIA LTD VS AMADI & ORS (2011) 5 SCNJ 1. The Court is to see the exhibits before pronouncing on them; See EKPEMUPOLO VS EDREMODA (2009) 3 SCNJ 77.
In the absence of a complete Record of Appeal, the jurisdiction of this Court has not been fully galvanised and the Court cannot pronounce on the merit of the appeal. Where the Court lacks jurisdiction in any particular matter, the proper order is to strike out the matter. See OKOLO VS UBN LTD. (2004) 3 NWLR (PT. 859) 87; TINUBU VS KHALIL & DIBBO TRANS. LTD. (2000) 11 NWLR (PT. 677) 171.
In the light of the foregoing, the appeal and cross appeal are struck out.
No Order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree with the reasoning and conclusion of my learned brother Isaiah Olufemi Akeju, JCA that the appeal be struck out. I make no order as to costs.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother I.O. Akeju, JCA. I entirely agree with him that in the absence of a complete record of appeal, this Court cannot properly exercise its appellate jurisdiction to hear and determine the appeal. In the light of the above, the appeal is incompetent and it is accordingly struck out. I abide by the order of costs in the lead judgment.
Appearances:
For Appellant(s)
A.F. GbaranmaFor Respondent(s)
