PA MICHEAL OLALOTI v. JOHNSON OLOYEDE IBUOYE & ANOR
(2019)LCN/13580(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2019
CA/IL/79/2018
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
PA MICHEAL OLALOTI Appellant(s)
AND
1. JOHNSON OLOYEDE IBUOYE
2. SUNDAY IBUOYE
(Suing for himself and on behalf of entire Ibuoye family of Arandun in Irepodun Local Government Area of Kwara State) Respondent(s)
RATIO
WHETHER OR NOT AN APPELLANT MUST COMPILE AND TRANSMIT TO THE COURT ALL SUCH DOCUMENTS THAT WOULD ASSIST THE COURT IN THE DETERMINATION OF THE APPEAL
Undoubtedly, any Appellant desirous of having the appeal thereof heard and determined timeously must compile and transmit to the Court, either vide the trial Court registry or by himself, all such documents that would assist the Court in the judicious determination of the appeal. Any failure to abide with the said Rule 6 of Order 8 (supra) may render the appeal incompetent and liable to be struck out by the Court.
As aptly held by the Supreme Court.
?Where necessary documents are not in the record, such an appeal is likely or liable to be struck out?.
See OSUNG VS. THE STATE (2012) 18 NWLR (Pt 1332) 256 ? Per Coomassie, JSC @ 280 Paragraphs A ? B.
In the case of NWANA VS. FCDA (2007) 11 NWLR (Pt. 1044) 59, the Apex Court equally held:
It is wrong for the Court of Appeal to base its decision in a case on an incomplete. Record transmitted to it without the vital document any exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence the decision would occasion a miscarriage of justice.
Per Chukwu-Eneh, JSC @ 79 Paragraphs B ? D. PER SAULAWA, J.C.A.
THE DISCRETION OF THE COURT TO DISMISS AN APPEAL WHERE BOTH THE REGISTRAR AND APPELLANT FAIL TO COMPILE AND TRANSMIT THE RECORDS OF APPEAL WITHIN THE STATUTORY TIME LIMIT
What?s more, by virtue of Order 8 Rule 18 of the said Rules, the Court is duly cloaked with an unfettered discretion to dismiss an appeal where both the Registrar and Appellant fail to compile and transmit the records within the statutory time limit. See also OLORUNYOLEMI VS. AKHAGBE (2010) LPELR ? 2597 (SC); (2010) 8 NWLR (Pt. 1195) 48, wherein it was aptly and most authoritatively held by the Apex Court:
(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 rehearing of the matter, the rehearing in this case is by considering the case based on the printed record before the appellate Court, which includes exhibits, tendered therein.
Most curiously, the learned Silk has urged upon this Court to make an order for retrial in the event that ?the parties are unable to produce the originating processes?. However, in my considered view, it would be outrageously speculative for the learned Silk to urge upon this Court to order for retrial. As once aptly held by this very Court:
In my considered view, to remit the case to the lower Court for retrial de novo, as has been agitated upon by the Appellants, would tantamount to throwing out the baby with the bath water!?
See CHIEF THOMAS EKPEMUPOLO AND ORS. VS. GODWIN EDREMODA AND ORS., CA/B/230/2010, delivered on 07/07/2014, per Saulawa, JCA.
Most interestingly, the famous idiomatic expressionTo throw out the baby with the bath water? ?invariably depicts an avoidable catastrophic mistake by which something good is eliminated or voided while endeavouring to get rid of something bad. That?s rejecting the essential along with the inessential.
Allegedly, this idiom is traceable to a German proverb ? DAS KIND MIT DEM BADE AUSSCH UTTEN. The earliest historical record of which dates back to 1512 in the book ? NARREN BESCHWORUNG, which means ? AN APPEAL TO FOOLS; by Thomas Murnor. And that book hilariously depicts a wood cut illustration showing a woman tossing a baby out with waste water. The author?s name sake, Thomas Carlyle adopted the concept in an essay on abolition of slavery, way back in 1849, thus:
And if true, it is important for us, in reference to this Negro Question and some others. The Germans say, ?you must empty-out the bathing tub, but not the baby along with it. Fling-out your dirty water with all zeal, and set it careening down the kennels; but try if you can keep the little child.
Unmistakably, Thomas Carlyle urged upon his readers to join in the struggle to end slavery, but equally admonished them to be mindful of ?the need to try to avoid harming the slaves themselves in the process?. See WILTON, David (2004): WORD SMITHS: DEBUNKING LINGUISTIC URBAN LEGENDS @ 66 ? 67; SHAW, BERNARD AND EDWIN WILSON (1961): SHAW ON SHAKESPEARE: AN ANTHOLOGY OF BERNARD SHAW?s WRITINGS ON PLAYS AND PRODUCTION OF SHAKESPEARE @ xvii; Wikipedia. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a natural fall-out of the judgment of the Kwara State High Court, OMU-ARAN Judicial Division delivered on May 11, 2018 in Suit No. KWS/OM/1A/2017. By the judgment in question, the Court below in its appellate jurisdiction, Coram: T. S. Umar and A. O. Akinpelu, JJ; dismissed the Appellant?s appeal against the decision of the trial Upper Area Court sitting at Omu-Aran delivered on November 3, 2016, thereby upholding and granting the Respondents? (Plaintiffs) claim.
BACKGROUND FACTS
The facts and circumstances surrounding the instant appeal are not far-fetched, as they are gleanable from the records of appeal transmitted to this Court on July 10, 2018 as well as the briefs of argument of the respective parties herein.
Indeed, both parties are ad idem vide their respective briefs of argument, that the Respondent herein as the Plaintiff at the trial Upper Area Court commenced the said action (No. UACIV/CVF/48/2013) in a representative capacity suing for himself and on behalf of the entire Ibuoye Family in Arandun, Irepodun Local
1
Government Area of Kwara State. As copiously alluded to at page 1 of the respective Appellant?s and the Respondents? briefs of argument, the Respondents vide the said suit sought some declaratory and injunctive reliefs against the Appellant:
1. A DECLARATION that any attempt either to change the ancestral name of the Oba Ibuoye Compound of Arandun in Irepodun Local Government to Aroyenro without the consent and approval of all the descendant of Oba Ibuoye is illegal and therefore null and void.
2. AN ORDER of injunction restraining the Defendants either by himself, agents, privies or through any person(s) however, from changing the said name.
3. AN ORDER of perpetual injunction restraining the Defendants either by himself, agents, privies from changing the name.
4. AN ORDER compelling the defendants to remove any Bill Board or Banner with any name different from the usual name of Ile Oba-Ibuoye erected or place (sic) anywhere in Arandun.
?
The subsisting Appellant (Defendant) and the 1st Original Defendant alongside the Plaintiff on record as well as the current Respondents who were substituted for the deceased Plaintiff
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were cousins, all hail from and belong to a compound formerly known as Okesan Ile Okankan, but now known as Okesan Ile Oba Ibuoye.
In the ensuing trial at the Upper Area Court, Omu-Aran, the Respondent (Plaintiff) called a total of four (4) witnesses who testified as PW1?PW4 respectively. At the end of the trial, the trial Upper Area Court delivered judgment on the said November 3, 2016 to the conclusive effect:
Consequence (sic) upon this, the plaintiff Claims (sic) is hereby granted as claim; (sic) the name Okesan Ile Oba Ibuoye shall be maintained and remain forthwith.
The above is the judgment of this honourable Court. Aggrieved party to this judgment has right of appeal to High Court Omu-Aran, thirty days after the delivery of this judgment.
SGD SGD
HON. GANIYU A. MUSTAPHA HON. S.A. FAGBEMI
PRESIDING JUDGE JUDGE
03/11/2016 03/11/2016
See pages 189 ? 223 of the Record.
Not unnaturally, the Appellant was dissatisfied with the judgment of the trial Upper Area Court, thus, appealed to the Court below sitting at Omu-Aran.
Consequent upon the Appellant?s appeal, the Court below, in
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it?s appellate jurisdiction, dismissed the appeal and upheld the judgment of the trial Upper Area Court, Omu-Aran to the following conclusive effect:
In conclusion, all the grounds formulated in this appeal having been resolved in favour of the Respondent, we hold that the appeal fails and same is accordingly dismissed.
HON. JUSTICE T. S. UMAR
JUDGE
11/05/2018
HON. JUSTICE A. O. AKINPELU
JUDGE
11/05/2018
Thus, as alluded to above, the instant appeal is against the vexed judgment of the Kwara State High Court, Omu-Aran Judicial Division. The original Notice of Appeal dated May 12, 2018 is contained at pages 453?461 of the record of appeal. It is predicated upon a total of nine (9) Grounds.
The Amended Notice of Appeal was dated 15/11/2018 but filed on 16/11/2018. The record of appeal was compiled and transmitted on 10/07/2018. On 16/04/2019, when the appeal came up for hearing, the learned counsel to the respective parties addressed the Court and adopted their respective briefs of argument, thus resulting in reserving judgment.
?However, in the course of developing the judgment, it was
4
discovered that the originating processes, including the Writ of Summons and Statement of Claim, have neither been incorporated in the record of appeal nor transmitted vide a supplementary record of appeal. Thus, mindful of the fundamental nature of the originating processes vis–vis the jurisdiction of the Court in adjudicatory process, the Court deemed it expedient suo motu to serve a notice upon the respective learned counsel to readdress the Court regarding the question of whether the appeal was competent in view of the incomplete nature of the record of appeal.
On 13/05/2019, the learned counsel to the respective parties had the opportunity of readdressing the Court on the said issue raised by the Court suo motu.
Most particularly, Eleja, SAN for the Appellant conceded to the fact that the originating processes were not incorporated into the record of appeal. And that there was no supplementary record of appeal transmitting the originating processes in question. The learned Silk equally conceded to the very fact that the record of appeal is incomplete. According to the learned SAN:
And we were not served with any originating
5
process. We made that at the trial Upper Area Court. But the trial Court said since we already appeared before the Court we have lost the right of being served with the originating process.
That we have waived our right. See page 130 of the record. That is the position.
The learned senior counsel further submitted that as parties have exchanged briefs (of argument), the Court was enjoined to afford the parties the benefit of procuring the missing processes before the delivery of judgment. But if the parties are unable to produce the originating processes, the Court can make an order for retrial. See OKOCHI VS. ANIMKWOI (2003) 18 NWLR (Pt. 851) 1 @ 23 ? 24; ENG. ENT. VS. A.G. KADUNA STATE (1987) 2 NWLR (Pt. 57) 381 @ 390 ? 390.
The learned Silk concluded by urging upon the Court to accordingly afford the parties (the opportunity) to produce the missing processes.
Contrariwise, Adeyi, Esq. for the Respondents, submitted that there?s an originating process from the trial Upper Area Court (U.A.C.). (But) it is not contained in the record of appeal. According to the learned counsel, the originating process:
Was filed in
6
the trial UAC and the Appellants were served. Even at the trial Court, the Appellants raised a counter claim at the trial UAC to which they were overruled.
On the question raised by the learned Silk that they were not served with the Writ of Summons and they were overruled. But there is no appeal against that ruling.
Therefore, I urge the Court to discountenance the submission that they were not served with the Writ of Summons.
The learned counsel however has no objection to the second leg of the SAN?s application to be given an opportunity to make the originating process available so that the appeal can be heard on its merit.
It was in the consequence of the learned counsel?s re-address on the said 13/05/2019, that the judgment has once again been reserved for delivery. Having accorded an ample regard upon the nature and circumstances surrounding the instant appeal, the oral submissions of the learned counsel to the respective parties on the preliminary observation made suo motu by the Court vis–vis the records of appeal as a whole, I am of the paramount view that two fundamental issues call for determination; viz:<br< p=””
</br<
7
1. Whether the Court has jurisdictional competence to determine the instant appeal upon incomplete records of appeal.
2. Whether in the event of answering the first issue in the negative, the appeal is, liable to be remitted to the Court below for retrial, or liable to be struck out for being incompetent.
ISSUE NO. 1
As copiously alluded to above, the first issue raises the very fundamental question of whether the Court has the jurisdictional competence to determine the instant appeal on the basis of incomplete records of appeal.
It ought to be reiterated at this crucial point, that the question of whether a Court has the requisite jurisdiction to entertain, hear and determine a matter or an appeal before it is most fundamental in adjudicatory process. In the instant case, the respective learned counsel are ad idem, to the effect that the originating processes upon which the entire proceedings of the two Courts below have been predicated are not part of the records of appeal before the Court. Undoubtedly, the originating processes in question have neither been incorporated in the record of appeal (transmitted on 10/07/2018) nor
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transmitted vide any supplementary record of appeal within the purview of Order 8 Rule 6 of the Court of Appeal Rules, 2016.
Instructively, by virtue of the unequivocal provision of Order 8 Rule 4 of the Court of Appeal Rules, 2016 (supra), it is mandatory for the Appellant, nay any Appellant for that matter, to compile and transmit the records of appeal from the lower Court to this Court, for the purpose of hearing and determining the appeal on the merits.
Undoubtedly, any Appellant desirous of having the appeal thereof heard and determined timeously must compile and transmit to the Court, either vide the trial Court registry or by himself, all such documents that would assist the Court in the judicious determination of the appeal. Any failure to abide with the said Rule 6 of Order 8 (supra) may render the appeal incompetent and liable to be struck out by the Court.
As aptly held by the Supreme Court.
?Where necessary documents are not in the record, such an appeal is likely or liable to be struck out?.
See OSUNG VS. THE STATE (2012) 18 NWLR (Pt 1332) 256 ? Per Coomassie, JSC @ 280 Paragraphs A ? B.
?
9
In the case of NWANA VS. FCDA (2007) 11 NWLR (Pt. 1044) 59, the Apex Court equally held:
It is wrong for the Court of Appeal to base its decision in a case on an incomplete. Record transmitted to it without the vital document any exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence the decision would occasion a miscarriage of justice.
Per Chukwu-Eneh, JSC @ 79 Paragraphs B ? D.
As postulated above, it is the onerous duty of the Appellant to place before the appellate Court all relevant Court processes and document necessary to assist the Court in the determination of his appeal. In the instant case, the record of appeal was compiled and transmitted to this Court at the instance of the Appellant. He ought to have incorporated the originating processes (which are vital for the determination of the appeal) in the record of appeal. See OSUNG VS. THE STATE (Supra), where in the Apex Court aptly, held:
It is the duty of the Appellant to place before the
10
appellate Court all relevant documents necessary for the determination of his appeal. In the instant case the Appellant compiled the record of appeal used at the Court of Appeal. He should have included the charge sheet or information against him if he deemed it was important for the determination of his appeal.
Per Muntaka ? Coomasie, JSC @ 279 Paragraphs B ? H.
In the circumstance, the answer to the first issue ought to be in the negative, and same is hereby resolved against the Appellant.
ISSUE NO. 2
The Issue No. 2 raises the question of whether, in the event of answering the first issue in the negative, the appeal is liable to be remitted to the Court below for retrial or liable to be struck out for being incompetent.
As copiously alluded to above, by virtue of the provision of Order 8 Rule 4 of the Court of Appeal Rules, 2016 (Supra) it is mandatory for the Appellant to compile and transmit the record of appeal to the Court of Appeal. What?s more, by virtue of Order 8 Rule 18 of the said Rules, the Court is duly cloaked with an unfettered discretion to dismiss an appeal where both the Registrar and Appellant
11
fail to compile and transmit the records within the statutory time limit. See also OLORUNYOLEMI VS. AKHAGBE (2010) LPELR ? 2597 (SC); (2010) 8 NWLR (Pt. 1195) 48, wherein it was aptly and most authoritatively held by the Apex Court:
(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 rehearing of the matter, the rehearing in this case is by considering the case based on the printed record before the appellate Court, which includes exhibits, tendered therein.
Most curiously, the learned Silk has urged upon this Court to make an order for retrial in the event that ?the parties are unable to produce the originating processes?. However, in my considered view, it would be outrageously speculative for the learned Silk to urge upon this Court to order for retrial. As once aptly held by this very Court:
In my considered view, to remit the
12
case to the lower Court for retrial de novo, as has been agitated upon by the Appellants, would tantamount to throwing out the baby with the bath water!?
See CHIEF THOMAS EKPEMUPOLO AND ORS. VS. GODWIN EDREMODA AND ORS., CA/B/230/2010, delivered on 07/07/2014, per Saulawa, JCA.
Most interestingly, the famous idiomatic expressionTo throw out the baby with the bath water? ?invariably depicts an avoidable catastrophic mistake by which something good is eliminated or voided while endeavouring to get rid of something bad. That?s rejecting the essential along with the inessential.
Allegedly, this idiom is traceable to a German proverb ? DAS KIND MIT DEM BADE AUSSCH UTTEN. The earliest historical record of which dates back to 1512 in the book ? NARREN BESCHWORUNG, which means ? AN APPEAL TO FOOLS; by Thomas Murnor. And that book hilariously depicts a wood cut illustration showing a woman tossing a baby out with waste water. The author?s name sake, Thomas Carlyle adopted the concept in an essay on abolition of slavery, way back in 1849, thus:
And if true, it is important for us, in
13
reference to this Negro Question and some others. The Germans say, ?you must empty-out the bathing tub, but not the baby along with it. Fling-out your dirty water with all zeal, and set it careening down the kennels; but try if you can keep the little child.
Unmistakably, Thomas Carlyle urged upon his readers to join in the struggle to end slavery, but equally admonished them to be mindful of ?the need to try to avoid harming the slaves themselves in the process?. See WILTON, David (2004): WORD SMITHS: DEBUNKING LINGUISTIC URBAN LEGENDS @ 66 ? 67; SHAW, BERNARD AND EDWIN WILSON (1961): SHAW ON SHAKESPEARE: AN ANTHOLOGY OF BERNARD SHAW?s WRITINGS ON PLAYS AND PRODUCTION OF SHAKESPEARE @ xvii; Wikipedia.
?In the instant case, it?s so obvious on the face of the records of appeal, that the Appellant was the sole architect of the misfortune thereof. As aptly submitted by Adeyi, Esq. of Respondents? learned counsel, the originating processes were filed in the trial Upper Area Court and duly served upon the Appellant. And the question of service of the originating processes was raised by the Appellant?s counsel
14
which was overruled by the trial Court. Yet, the Appellant did not deem it expedient to appeal against that decision of the trial Upper Area Court in question. Thus, considering the fundamental nature of the originating processes, the Appellant?s failure to transmit them to the Court has resulted in rendering the appeal incompetent and liable to be terminated at the threshold in limine. It was aptly held by the Apex Court:
In a case where competence of the action is in issue, the Court not only has the authority but also the duty to determine the action in limine, as in the instant appeal, where a lack of competence of an action robbed on the jurisdiction of the Court to hear it within the classification of the elements that make jurisdiction as expounded in MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341? Therefore, the preliminary objection raised by the Appellant herein at the Court of Appeal ought to have terminated the appeal of the 1st Respondent.
See OKOROCHA VS. PDP (2014) 7 NWLR (Pt. 1406) 213 per Ogunbiyi, JSC @ 275 paragraphs A ? F; THE STATE VS. ONAGORUWA (1992) 2 NWLR (Pt. 221) 33; SANI VS. OKENE TRADITIONAL COUNCIL (2008)
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12 NWLR (Pt. 1102) 691; et al.
In the circumstance, the second preliminary issue is hereby resolved against the Appellant, and I accordingly hold that the instant appeal ought to be struck out upon the ground of incomplete record of appeal.
Hence, having resolved both preliminary issues against the Appellant, the appeal is accordingly hereby struck out for being incompetent.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read the leading judgment just delivered by my Lord IBRAHIM MOHAMMED MUSA SAULAWA, JCA, I agree, the appeal lacks merit and same be struck out accordingly.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the lead judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA with which I am in full agreement.
The resolution of the two issues canvassed on was brilliantly settled and I have nothing useful to add.
?In the circumstance the appeal fails being incompetent and accordingly struck out. I make no order as to costs.
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Appearances:
M. A. Abdul-Raheem, Esq.For Appellant(s)
Isaiah Adeyi, Esq.For Respondent(s)
Appearances
M. A. Abdul-Raheem, Esq.For Appellant
AND
Isaiah Adeyi, Esq.For Respondent
