UNITY BANK v. AHMADU & ANOR
(2021)LCN/15804(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 01, 2021
CA/ABJ/PRE/ROA/CV/804/M1/2020(R)
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
UNITY BANK PLC APPELANT(S)
And
1. ALHAJI S. A. AHMADU 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)
RATIO
DOCUMENTS TO BE CONTAINED IN A RECORD OF APPEAL
In applications such as the instant, the Rule provides under Order 8 Rule 7 thus:
Every Record of Appeal shall contain the following documents in the order set out-
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal. Filed together with the instant application is the proposed record from page numbered as figure 1. I have painstakingly gone through the whole gamut of the said proposed record of appeal and unable to find a copy of the Notice of Appeal. It is trite and is equally elementary that a Notice of Appeal is the originating process in any appeal which is so fundamental and indeed has been described as the spinal cord of an appeal. It activates the jurisdiction of this Court and sets all other actions in motion for a valid and proper commencement of an appeal. Where it is defective, there is no proper appeal as there will be nothing to stand upon and therefore a collapse of everything. See the cases of NIGERIAN UNION OF PENSIONERS V. J. KYUMEH 2013 LPELR – 20786 CA, OKETIE V. OLUGHOR 1995 5 SCNJ 217 and THOR LTD. V. FIRST CITY MONUMENT BANK LTD. 2002 2 SCNJ 85. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgement): By Motion on Notice dated September 18th, 2020 and filed September 21st, 2020, brought pursuant to Section 15 of the Court of Appeal Act 2004, Order 6 Rule 11 of the Court of Appeal Rules and under the inherent jurisdiction of this Court, the Applicant seeks in the main the following reliefs:
1. An order of Court for leave to set aside the ruling of this Honourable Court made on September 9, 2020 dismissing the appeal of the Applicant for none compilation and transmission of the Record of Appeal from Niger State High Court Suleja Division – Alh. S. A. Ahmadu vs. Unity Bank Plc and Central Bank of Nigeria to the Court of Appeal.
2. An Order of Court setting aside the ruling of this Honourable Court delivered on September 9, 2020 dismissing the appeal of the Applicant for none compilation and transmission of the Record of Appeal from Niger State High Court Suleja Division – Alh. S. A. Ahmadu vs. Unity Bank Plc and Central Bank of Nigeria to the Court of Appeal.
3. An Order of Court for extension of time to compile and transmit the Record of Appeal from Niger State High Court Suleja Division to the Court of Appeal in Suit No. NSHC/SD/37M/2018 – Unity Bank Plc vs S. A. Ahmadu and Central Bank of Nigeria out of time.
There are seven (7) grounds upon which this application is brought. In support of the application is a five (5) paragraph affidavit of September 21st, 2020 together with a copy of a Motion on Notice for time to be enlarged for the Applicant to compile and transmit Record of Appeal from the said Court below to this Court filed on September 9th, 2020, the enrolled order of this Court dated September 18th, 2020 which dismissed the Applicant’s appeal and the Proposed Record of Appeal.
The 1st Respondent vehemently opposed the instant application with a fourteen (14) paragraph affidavit dated and filed on October 9th, 2020 together with Exhibits S.A. 1 and 2. To which the Applicant filed further and better affidavit of five (5) paragraphs dated and filed on January 14th, 2021.
At the hearing of the application, Mr. Paul Audu for the Applicant moved the application to set aside the ruling of this Court delivered on September 9th, 2020 which dismissed the Applicant’s application for failure to compile and transmit Record of Appeal herein and urged that the application be granted. Mr. Olutoyese Ibitoye for the 1st Respondent based on the counter-affidavit of the 1st Respondent, argued that, the application be dismissed as it was brought mala fide, that the Applicant has filed a Notice of Appeal before the apex Court on September 11th, 2020 challenging the ruling of the Court below and this Court has become functus officio and urged that the application be dismissed.
I have very carefully considered the arguments by both Counsel for and against the instant application. Having so very carefully done , I proceed thus in respect of same:
It is part of the record herein and even as filed by the Applicant that, on September 9th, 2020, that this Court, upon listening to the learned Counsel for both the Applicant and 1st Respondent on the application filed January 14th, 2020 by the 1st Respondent’s Counsel to dismiss the Applicant’s Notices of Appeal filed on January 23rd. 2019 and January 29th, 2019, dismissed the said Notices of Appeal for want of diligent prosecution pursuant to Order 8 Rule 18 (1) of the 2016 Rules of this Court. The dismissal was upon the fact that the Applicant took no step at the time to compile and transmit the records of the Court below. Some days thereafter, the Applicant filed the instant application as afore said, September 21st, 2020, which showed diligence, to set aside the said ruling and to enlarge time for the Applicant to compile and transmit Record of Appeal. In consideration of this application, the act of diligence by the Applicant without any doubt would assist its application which seeks the judicial and judicious exercise of the discretion of the Court. It however needs be quickly added that amongst other necessary considerations are the requirements as prescribed by the said rules of this Court.
In applications such as the instant, the Rule provides under Order 8 Rule 7 thus:
Every Record of Appeal shall contain the following documents in the order set out-
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal. Filed together with the instant application is the proposed record from page numbered as figure 1. I have painstakingly gone through the whole gamut of the said proposed record of appeal and unable to find a copy of the Notice of Appeal. It is trite and is equally elementary that a Notice of Appeal is the originating process in any appeal which is so fundamental and indeed has been described as the spinal cord of an appeal. It activates the jurisdiction of this Court and sets all other actions in motion for a valid and proper commencement of an appeal. Where it is defective, there is no proper appeal as there will be nothing to stand upon and therefore a collapse of everything. See the cases of NIGERIAN UNION OF PENSIONERS V. J. KYUMEH 2013 LPELR – 20786 CA, OKETIE V. OLUGHOR 1995 5 SCNJ 217 and THOR LTD. V. FIRST CITY MONUMENT BANK LTD. 2002 2 SCNJ 85.
Where there is no copy of the Notice of Appeal in a proposed Record of Appeal as herein, the said proposed record in my view and humbly cannot be said to be competent in any way.
Further in this regard, it is stipulated by Order 8 Rule 10 (1) (a) that, the record shall be transmitted together with a certificate of service of the notice of appeal. And Sub-rule (3) prescribes that “the registrar of the Court below or the Appellant as the case may be, shall within seven (days) of the transmission of the record to the Court, cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been transmitted to the registrar of the Court who shall in due course enter the appeal in the cause list.”
One has made an effort to show from the foregoing provisions of the Rules of this Court the necessary steps expected to be taken with respect to Notice of Appeal in ensuring that an appeal is properly before the Court prior and after an application of this nature is granted.
In the light of my finding and as already stated that, there is no copy of the Notice of Appeal in the said proposed record before this Court, one finds the Applicant’s application incompetent, such that cannot be granted. The application is hereby consequently refused.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading in draft form the ruling just rendered by my learned brother, E. O. Williams-Dawodu, JCA.
I agree that the application is devoid of merit and I also dismiss it.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Mr. Paul Audu For Appellant(s)
Mr. Olutoyese Ibitoye – for 1st Respondent For Respondent(s)
