OKOLO & ORS v. OZOIKE & ORS
(2020)LCN/15440(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/E/464/2016
RATIO
COMPETENCE OF COURT: RELEVANCE OF RULES OF COURT
It is trite law that the rules of Court are to be obeyed and complied with. In the event of a non-compliance with the rules and it is not explained away, then, unless the non-compliance is of a minimal kind, the Court must not grant any indulgence. See; N.A. Williams & Ors v. Hope Rising Vol. Society (1982) 1 All NLR (Pt.1) 1 at 5; Onwuka Kalu v. Victor Odili & Ors (1992) NWLR (Pt.340); (1992) 6 SCNJ 76. See IFEANYICHUKUWU TRADING INVESTMENT VENTURES LTD & ANOR VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR-24819(SC) at 39. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(
APPEAL: RELEVANCE OF AN APPEAL FOUNDED ON AN INCOMPETENT RECORD
It therefore goes without saying that an appeal founded on an incompetent record is totally incompetent as it has no legal basis to stand upon. See ABDULLAHI & ANOR VS. ABUBAKAR & ANOR (2013) LPELR-21856 (CA), TOTAL E & P (NIG) LTD VS. JONATHAN & ANOR (2018) LPELR-44691 (CA) and IWUJI VS. EKWEGHARIRI & ORS (2019) LPELR-46908 (CA). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
- HRH IGWE J.C. OKOLO 2. EVARISTUS OKWOR 3. OKEY AGU 4. WILLIAM AGU 5. OKEY ALOR 6. CHIDI OGBUCHI 7. EZE SOLOMON APPELANT(S)
And
1. IKENGE PETER OZOIKE 2. OZOR GABRIEL AMUJIOGU 3. OZOR ONYEBUCHI ANI 4. HON. UCHE ALOR 5. OZOIKE GEOFREY 6. MR CALLISTUS AMANOH 7. OZOIKE IKENNA 8. AGU SAMUEL 9. AGU SOLOMON 10. AGU SAMPSON 11. ONOH ISRAEL 12. OZOUGWU ARINZE (FOR THEMSELVES AND ON BEHALF OF OTHER AGGRIEVED MEMBERS OF UMUEZEANI AMEKE NGWO)— 1ST SET OF RESPONDENTS 13. DIVISIONAL POLICE OFFICER (9TH MILE POLICE DIVISION) 14. COMMISSIONER OF POLICE, ENUGU STATE 15. A.I.G. ZONE 9 UMUAHIA 16. INSPECTOR GENERAL OF POLICE—2ND SET OF RESPONDENTS RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 11th May, 2016 by ODUGU, J.
The Appellants and the 1st – 12th Respondents hereinafter referred to as the 1st set of Respondents are members of the same Umuezeani Ameke Ngwo Village in Enugu State. There was a dispute over the election of the Chairman and executives of the community culminating in the 1st set of Respondents taking out an action for the enforcement of their fundamental rights at the trial Court. The reliefs sought in the said action are as follows:
a. A declaration of the Honourable Court that the constant harassment, intimidation, arrest and detention of the 4th and 8th Applicants and continued threat to arrest the 1st, 2nd, 3rd, 5th, 6th, 7th, 9th, 10th, 11th, 12th, Respondents and cohorts by the 8th-11th Respondents on the instigation of the 1st-7th Respondents are against the Applicants right to personal liberty and freedom of movement.
b. A declaration of the Court that the plot, design and antics of the 8th-11th Respondents, their officers, agents, servants and privies to keep harassing, arresting, and/or threatening to arrest and detain the Applicants endlessly at the behest, instigation and connivance of the 1st – 7th Respondents for no just cause or justification, is unconstitutional, unlawful and breach of their fundamental rights as enshrined in Section 35 of the Constitution.
c. An injunctive order restraining the Respondents and their agents/privies from continuing to harass, intimidate, arrest, detain or in any way inhibit the Applicants fundamental rights or taking any further steps that will derogate their rights as enshrined under Section 35, 41 and 43 of the 1999 Constitution as amended.
d. N10,000,000 (Ten Million Naira) only as compensation and/or exemplary damages, jointly and severally against the Respondents for unlawful and gross violation of the fundamental rights of the Applicants.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The Appellants joined issues with the 1st set of Respondents and vigorously contested the action while the 13th -16th Respondents, hereinafter referred to as the 2nd set of Respondents, did not file any process. After taking arguments from the respective counsel, the learned trial Judge delivered a considered judgment as earlier stated on the 11th May, 2016 in favour of the 1st set of Respondents and granted their reliefs against the 1st set of Respondents.
Miffed at this outcome, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 17th May, 2016 containing ten grounds.
At the hearing of the appeal, Mr. Nnadi of counsel for the Appellants adopted the Appellants’ brief filed on the 23rd November, 2016 and the Appellants’ Reply brief filed on the 15th February, 2017 as the arguments of the Appellants in furtherance of their appeal. For the 1st set of Respondents, Mr. Amujiogu their lead counsel, adopted their brief of argument filed on the 31st January, 2017 as their arguments in contesting this appeal. Although the 2nd set of Respondents were unrepresented, having been satisfied that they were duly notified of the hearing date, the brief of argument filed on their behalf by Mr. Igwesi on the 14th February, 2017 was deemed adopted as their arguments in contesting this appeal.
The Appellants in a rather lazy and inelegant manner distilled ten issues from the ten grounds of appeal as follows:
1. Whether there are indexes to show that the averments of the 1st set of Respondents (Applicants in the main suit) were laced with falsehood to mislead the Honourable Court.(sic)
2. Whether the damages awarded is not excessive against the Appellants, considering the rights allegedly breached.
3. Whether there is any proof of the 1st set of Respondents allegations against the 2nd set of Respondents, which the trial court inclined upon to sanction the Appellants.
4. Whether the trial Court gave excessive value to the averments of the 1st set of Respondents, to the disadvantage of the Appellants, hence occasioning miscarriage of justice.
5. Whether the learned trial Judge admitted as true the opposed story line of the 1st set of Respondents, without further evidence to substantiate them.
6. Whether the unregistered constitution of Umuezeani Village supersedes or over-rides the powers conferred on the Appellant by the Chieftaincy Laws of Enugu State.
7. Whether the learned trial Judge failed to appropriately valuated the duties and powers of the Nigerian Police Force, in this suit, hence occasioning miscarriage of justice. (sic)
8. Whether there are deviations into procedural and substantive unfairness which culminated into inappropriate evaluation of evidence, hence occasioning miscarriage of justice.
9. Whether the trial Court failed to hold the scale of justice equally between the parties when hence came to a conclusion that 1st Appellant was the aggressor, who initiated the arrest and interrogation.
10. Whether the judgment of the trial Court is not against the weight of evidence and submissions.
The 1st set of Respondents on their part distilled five carelessly and inelegantly drafted issues for determination thus:
1. Whether the record of appeal and the Appellant brief presented to this Court were compiled and filed within the time required by the Rules of this Court. (sic)
2. Whether grounds 1,2,3,4,5,6,7,8,9 and 10 of the Appellants Notice of Appeal are competent in the eye of the law.
3. Whether by the state of affidavits evidence and exhibits in this case, was the trial Court right in holding that the Applicants/1st set of Respondents were wrongly and unlawfully arrested and detained at the instigation of the Appellants.
4. Whether from the facts and circumstances of this case, was the damages awarded against the Appellants excessive in view of the willful instigation of the several and humiliating arrests and detentions of many of the 1st set of Respondents including the continued threats to arrest more persons for no just cause by the Appellants. (sic)
5. Whether by the Constitution of Umuezeani Ameke Community, does the 1st Appellant has a right to solely impose his cronies as leaders of Umuezeani Ameke Community without following the due process of the law. (sic)
The 2nd set of Respondents on their part formulated a lone issue for determination which is:
Whether the 2nd set of Respondents were denied fair hearing in this suit.
The sole issue of the 2nd set of Respondents constituted a challenge to the judgment of the trial Court which is an unacceptable departure from the traditional role of the Respondent in supporting the judgment. See IMONIYAME HOLDINGS LTD & ANORVS. SONEB ENTERPRISES LTD & ORS (2010) LPELR-1504(SC). In doing this however, the learned counsel referred to a Notice of Appeal which was contained in his brief. This is most disappointing to say the least. That counsel would be in ignorance of the extant procedure for filing notices of appeal raises several doubts. It seems the best that could be done for the said brief and its entire infamous content is to discountenance it and I hereby do so.
Issues 1 and 2 of the Respondent are in essence objections to the competence of the appeal, I shall therefore attend to them immediately.
Arguing his issue 1, Mr. Amujiogu submitted that the record of appeal and the Appellants’ brief were incompetent as they were transmitted and filed out of time respectively. He referred to Order 8 Rule 1 of the Rules of this court.
The response of Mr. Nnadi to this was that the duty of compiling records was the business of the appeal registry of the trial Court and that there was no delay by the said registry which could have necessitated the Appellants undertaking the said exercise. He pointed out that the Appellants’ brief was filed within 45 days of the receipt of the records of appeal. He urged the Court to incline towards substantial justice over procedural law and referred to INOGHA MFA & ORS VS MFA:LER/2014/SC.305/2006 and DANGOTE GEN. TEXTILE PRODUCTS LTD & ORS VS HASCON ASSOCIATES NIG. LTD & ORS: LER/2013/SC. 89/2005.
From the records available to the Court, the Notice of Appeal herein was filed on the 17th May, 2016 while the record of appeal was transmitted to this Court on the 3rd November, 2016, a period of about 170 days. As at the time the said records were compiled and transmitted, the extant Rules of this Court was the Court of Appeal Rules, 2011 and Order 8 Rules 1 and 4 thereof provide as follows:
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.
By the above stated provisions, an Appellant has a total period of ninety days for transmitting the records of Appeal. Transmission outside this period renders the record of appeal incompetent unless an application is granted by the Court regularizing such transmission. In transmitting the records of appeal here, well outside the stipulated period without any attempt to regularize same, the Appellants have trampled upon the Rules of this Court without remorse. Failure to comply with the extant rules of Court cannot be excused under the guise of the quest of the Court to do substantial justice. In actual fact, compliance with the extant rules guiding the procedure of the Court ensures substantial justice as parties become well and appropriately guided. The guiding principle here was well stated by ARIWOOLA, JSC thus:
It is trite law that the rules of Court are to be obeyed and complied with. In the event of a non-compliance with the rules and it is not explained away, then, unless the non-compliance is of a minimal kind, the Court must not grant any indulgence. See; N.A. Williams & Ors v. Hope Rising Vol. Society (1982) 1 All NLR (Pt.1) 1 at 5; Onwuka Kalu v. Victor Odili & Ors (1992) NWLR (Pt.340); (1992) 6 SCNJ 76. See IFEANYICHUKUWU TRADING INVESTMENT VENTURES LTD & ANOR VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR-24819(SC) at 39.
It therefore goes without saying that an appeal founded on an incompetent record is totally incompetent as it has no legal basis to stand upon. See ABDULLAHI & ANOR VS. ABUBAKAR & ANOR (2013) LPELR-21856 (CA), TOTAL E & P (NIG) LTD VS. JONATHAN & ANOR (2018) LPELR-44691 (CA) and IWUJI VS. EKWEGHARIRI & ORS (2019) LPELR-46908 (CA).
I therefore resolve this issue in favour of the 1st set of Respondents and against the Appellants. I must halt further consideration of the appeal having concluded that it is incompetent.
The appeal is accordingly struck out.
Parties shall bear their respective costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the record of appeal being the foundation upon which an appeal is built having been transmitted to this Court outside the time stipulated by the rules is incompetent. Consequently, the appeal before us is incompetent. It is hereby struck out.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Joseph Olubunmi Kayode Oyewole, JCA just delivered. I am in total agreement with the decision reached and the reasoning behind the decision.
The record of appeal available before this Court was clearly compiled outside the period of 90 days after the filing of the notice of appeal. This is a flagrant breach of Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011 which was in force at the time the record of appeal was compiled and transmitted to this Court. The appellant also failed to bring an application to regularize the said record of appeal. The consequence of a record of appeal transmitted out of time without an order for extension of time is that there is no valid record to support the appeal and such a lapse is fundamental. In the result, the appeal is incompetent and liable to be struck out. See the case of NDIC & ANOR V. SUN & PADDY INTL GROUP (NIG) LTD & ANOR (2018) LPELR – 44768 (CA).
For the above reasons, I too strike out this appeal. I abide by the order as to cost made in the lead judgment.
Appearances:
Mr. F. K. Nnadi with him Mr. C. E. Odukwu, holding the brief of Mr. O.A.U. Okafor For Appellant(s)
Mr. A. Amujiogu with him Mr. O. Dimezie, A. Nwaroh Esq. and Mr. E. C. Nnadozie for 1st set of Respondents
No appearance for 2nd set of Respondents For Respondent(s)
