WATA v. GADO
(2022)LCN/16609(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, January 20, 2022
CA/S/118S/2020
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
SANI WATA APPELANT(S)
And
MALAMA GADO RESPONDENT(S)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN HEAR AN APPEAL ON INCOMPLETE RECORDS
The position of the law is that an appellate Court has a duty not to hear an appeal on incomplete records. This is because the appellate Court is entitled to look at and refer to the contents of the record in consideration of the matter before it. An appeal is a rehearing. The Court of Appeal therefore has the power to look at anything contained in the record of an appeal before it in order to arrive at a just decision of the appeal. It is not for the Appellant to leave out vital processes like the statement of the parties and the record of proceedings before the Upper Sharia Court and the Sharia Court of Appeal. No justice can be done in the appeal in such circumstances and such any decision by the Court of Appeal without these vital processes will occasion a miscarriage of justice. See the cases of CHIEF EKPEMUPOLO & ORS VS. EDREMODA & ORS (2009) 18 NWLR (PT. 1142) 966 and NWANA VS. F.C.D.A. (2007) 11 NWLR (PT. 1044) 59. PER IDRIS, J.C.A.
THE POSITION OF LAW ON WHAT CONSTITUTES A COMPLETE RECORD OF APPEAL
What constitutes a complete record of appeal was demonstrated by the Supreme Court in the case of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. OJIOWHOR MONDAY AMADI & ORS (2011) LPELR – 3204 (SC), where it was held:
“On what constitutes complete record of appeal under the Rules of this Court, see Order 7 Rule 2 which states – “2(1) As soon as an appellant has filed his notice of appeal in the Court below, the Registrar of that Court or (in the case to which Rules 6 and 7 of this Order apply) the Appellant shall, with all due expedition, start to prepare the record in accordance with the provisions of this Order. (2) The record shall contain the following documents in the order set out – (a) the index; (b) a statement by the Registrar of the Court of Appeal giving brief particulars of the case and including a schedule of the fees paid in the Court of Appeal; (c) copies of the documents and proceedings constituting the Record of Appeal before the Court of Appeal; (d) copies of all documents and proceedings before the Court of Appeal; (e) a copy of the order for leave to appeal whether made by this Court or the Court of Appeal; (f) a copy of the notice of appeal; (g) a certificate by the Registrar of the Court of Appeal certifying that the notice of appeal was duly served upon the Respondent; (h) a certificate by the Registrar of the Court of Appeal certifying that the Appellant has duly and punctually complied with the conditions of appeal imposed upon him; and (i) a certificate by the Registrar of the Court of Appeal certifying that the Appellant and Respondent have either collected their copies of the record respectively and that they have been duly notified that such record is ready for collection.” PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE COURT OF APPEALS JURISDICTION TO DTERMINE AN APPEAL FROM THE LOWER COURT
It is a fundamental principle of law that the Court of Appeal is devoid of jurisdictional competence to hear an appeal based on an incomplete record of appeal. It is indeed a well settled law that an appeal from the lower Court shall be determined by way of a rehearing and as such, the Court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire record of appeal comprising of the lower Court’s proceedings and evidence adduced thereat, to such an extent as the grounds of appeal demand. See the cases of NWANA VS. FCDA (2007) 11 NWLR (PT. 1044) 59 AT 84 PARAGRAPHS D – F, PANALPINA WORLD TRANSPORT VS. WHRIBOKO (1975) 2 SC 29, OPARAJI VS. OHANU (1999) 9 NWLR (PT. 618) 290 and UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141.
Most instructively, in the case of NWANA VS. FCDA (SUPRA) PARAGRAPHS. F – H, it was aptly held by the Supreme Court per Chukwuma-Eneh, JSC that:
“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 documentary 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.”
Hearing an appeal on an incomplete record being a jurisdictional issue that reared its head in the course of writing judgment in this appeal, the general principle of law dictates that this Court ought to invite the parties’ respective Counsel to address it on it. However, since the absence of the complete record of appeal touches on the jurisdictional powers of this Court to entertain the appeal in the first place, it is in circumstances such as this that the Supreme Court in its wisdom in the case of OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 20184 (SC), per Rhodes-Vivour, JSC recognized the necessity for a Court to raise suo motu an issue of jurisdiction and determine the same without inviting the parties to address it on it. The Supreme Court expressed in OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (SUPRA) that there are circumstances when the need to give the parties a hearing will not be necessary. It held that a judge can raise an issue suo motu without giving the parties hearing if:
a) The issue relates to the Court’s own jurisdiction.
b) Both parties are/were not aware or ignored a statute which may have bearing on the case i.e., where the Court is expected to take judicial notice.
c) When on the face of the record serious questions of the fairness of the proceedings is evident.
See the cases of EZEANYA VS. OKEKE (1995) 4 NLR PART 388 PAGE 142, A.C.B. PLC VS. LOSADA (NIG.) LTD (1995) 7 NLR PART 4005 PAGE 26; OJUKWU VS. YAR’ADUA (2009) 12 NWLR (PT. 1154) PAGE 56 and OYEWOLE VS. AKANDE (2009) 15 NWLR (PT. 1163) PAGE 119.
It is distinct in OMOKUWAJO’s case (SUPRA) that a Court can now raise issue of jurisdiction suo motu without granting the parties hearing on it.
THE POSITON OF LAW ON THE DUTY OF THE APPELLATE COURT TO HEAR AN APPEAL
It is well settled that it is the duty of an appellate Court not to hear an appeal on an incomplete record. See the case of CHIEF OKOCHI & 2 ORS VS. CHIEF ANIMKWOI & 2 ORS (2003) 18 NWLR (PT. 251) 1; (2003) 2 SCNJ 260 AT 271. This is because the record of proceedings binds the parties and the Court until the contrary is proved. See also the cases of SOMMER VS. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548; (1992) 1 SCNJ 73, ORUGBO & ANOR VS. BULARA UNA & 10 ORS (2002) 9 SCNJ 12; (2002) 9 – 10 S.C. 61 and CHIEF FUBARA & ORS VS. CHIEF MINIMAH & ORS (2003) 5 SCNJ 142 AT 168. There is a presumption of genuineness which of course is not absolute but is rebuttable, and that Court is entitled to look at and refer to the contents of the record in consideration of any matter before it. In the case of OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851) 1, the Supreme Court per Tobi, JSC, held that:
“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record. “PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): From the contents of the judgment of the Sharia Court of Appeal which is the lower Court from which this present appeal originated, and the Appellant’s Brief of Argument, the Respondent in this appeal first sued the Appellant before the Upper Sharia Court, Shanga in Kebbi State in Suit No: USC/SHG/CV/123/2017 as Claimant seeking a declaration that there is affinity between her and the Appellant as Respondent. The Court presented the parties and then read the statement of claim to the Appellant and the Respondent in proof of her claim, presented 13 witnesses who all testified before the Court and “IZARI” was performed on the parties by asking them whether anyone of them has anything more to say before the case was decided and both parties said that they have nothing more to say.
The Upper Sharia Court then made its findings where it held that it found it appropriate to consider the testimonies of the witnesses even upon the questions they were asked during cross-examination. Since there was no ground that the Court could rely on to dismiss their testimonies, the Court asked the Appellant if he was satisfied with their testimonies of which the Appellant replied that he was not satisfied and thus disagreed with the testimonies of the Respondent’s witnesses. He criticized the testimonies of CW11 and CW12 wherein it was stated that they were relations of the Respondent but the witnesses said that they were related to the Respondent but they gave their testimonies for the sake of Allah. As such, the Court affirmed the claim of the Respondent on the issue of the relationship between the Respondent and the Appellant based on the testimonies of the two witnesses.
The Appellant not being satisfied with the decision of the Upper Sharia Court, appealed to the Sharia Court of Appeal Kebbi State, holden at Yauri/Zuru Judicial Division and stated his grounds for appeal as follows:
1. The Judge did not make a thorough investigation because he considered the testimonies of the witnesses presented by the claimant who is their relation and affirmed their relationship with her.
2. That he criticized all the witnesses presented before the Court on the ground of being related and the Court agreed with him but does not know the reason why the Court considered their testimonies.
After taking cognizance of the trial Court’s copy of the proceedings and the submission of parties, the Sharia Court of Appeal, Yauri/Zuri Judicial Division made the following findings inter alia:
1. We noticed that this case, is a case seeking for confirmation of affinity/kinship. Where the claimant is saying that she has affinity with the Respondent while the Respondent is denying that there is no affinity between them or between their parents.
2. Similarly, we noticed that the claimant’s claim is not complete because in her statement of claim she should have explained how the affinity relates between them and her relationship with the Respondent’s father ascending to their grandparents. There is no such explanation as such her claim is incomplete.
3. We also noticed in the grounds of appeal presented by the appellant lawyer where he stated that the judge did not make a thorough investigation, but just decided the case. We also observed this, because under Islamic law, a Judge will not make any decision unless the claim before him is complete and he also understands the claim of the parties they presented before him. As such failure to comply with Islamic law principles is an error for it is not permissible for a Judge to decide upon a case unless the claim is complete.
4. We noticed that the witnesses (13) presented by the claimant before the trial Court are not credible. This is because CW1, said that it was the elders that told them, CW2: said he is a friend of her husband and together they seek for her hand in marriage and she was granted to them. CW3: said he doesn’t even know the parties. CW4: said all his testimony is what he was told as story. CW5: said there is no affinity between the parties.CW6: said he doesn’t know of the affinity. CW7: also said he doesn’t know of their affinity. CW8: said he doesn’t know that there is a affinity between the parties in fact he is related to the Respondent. CW9: said he knows nothing. CW10: said he is not aware of any affinity between the parties. CW11: said he doesn’t know of the affinity in issue. CW12: said he really an elder brother of the Respondent. CW13: said there is really a relationship between him and the claimant.
5. That under Islamic law once an error occurs in a decision, then it will be annulled and the judgment reviewed.
On the basis of the foregoing, the Sharia Court of Appeal presided over by Honourable Alhaji Aliyu Mani Yelwa, gave its decision in Suit No: SCA/KBS/SHG/24/2018 on the 27th of February, 2020 and annulled the decision of the Upper Sharia Court for being contrary to the principles of Sharia and ordered the Sharia Court Koko to retry the case afresh.
Dissatisfied with the decision of the Sharia Court of Appeal, the Appellant herein filed a Notice of Appeal before this Court dated the 12th day of February, 2020 comprising of three (3) grounds of appeal.
The parties to the appeal filed their respective briefs of argument. The Appellant’s Brief of Argument was filed on the 30th day of June, 2021 and same was settled by the Appellant’s Counsel, E. C. Oguelina Esq., wherein 3 (three) issues for determination were raised as follows:
1. Whether the lower Court’s procedure in raising the issue of incompleteness of the statement of claim of the Respondent suo moto, determination of the appeal thereon without giving the parties the opportunity to address it therein occasioned a miscarriage of justice on the appellant. (Culled from ground 1 of the Grounds of Appeal)
2. Whether assuming but not conceding, that the statement of claim of the Respondent before the trial Court was incomplete, that irregularity misled any of the parties, especially the appellant or the trial Court to warrant the order for re-trial of the suit. (Culled from ground 2 of the Grounds of Appeal)
3. Whether the lower Court was right in making the order of re-trial of the suit after reviewing the whole proceedings and coming to a conclusion that the Respondent produced no credible evidence to prove her case. (Culled from Ground 3 of the Grounds of Appeal)
The Appellant’s Counsel argued that where a Court raises an issue suo motu, it should allow the parties to be heard on it before reaching a decision thereon and that the failure of the lower Court to do this vitiates its decision. The Appellant’s Counsel also submitted that contrary to the position of the lower Court, the statement of claim of the Respondent before the trial Court was wide enough to sustain her case and the Appellant duly comprehended and fully replied to it, and that the trial Court was not in any way misled nor misunderstood it and never complained of its incompleteness. Counsel further argued that the order for retrial of the suit which the Respondent hopelessly lost is a wrong exercise of discretion.
In conclusion, the Appellant’s Counsel prayed this Court to allow this appeal and set aside the order of retrial made by the lower Court and in its stead enter an order dismissing the Respondent’s suit before the trial Court and any other order this Court may deem to make in the circumstance.
On the other hand, the Respondent filed her Respondent’s Brief of Argument which was dated the 12th day of August, 2021 and settled by her Counsel Ahmad A. Fingilla, Esq. In the said brief of argument, the Respondent adopted the 3 (three) issues for determination raised by the Appellant in the Appellant’s Brief of Argument.
The Respondent’s Counsel submitted that the argument of the Counsel to the Appellant that the Court below raised the issue of incompleteness of the Respondent’s claim suo motu and resolved same without giving the parties the opportunity to address it do not hold water because the Court below in its judgment rightly pointed out that they have agreed with the submissions of the Counsel to the Appellant that the trial Court wrongly adjudicated upon the matter without making a thorough investigation of the facts and circumstances placed before him and thus, the issue so raised by the Court below is not in any way contestable as it is not a new issue raised suo motu and that assuming it is so, the Court below is empowered to do so provided it does not occasion a serious miscarriage of justice.
The Respondent’s Counsel also submitted that since the problem is from the statement of claim there is no way the appellate Court can take care of lapses without affording the parties another opportunity to go back to another Court with coordinate jurisdiction to enable the Respondent state clearly how her relationship with the Appellant came into existence in her statement of claim to assist the Court reach a just conclusion between the parties. The Respondent’s Counsel further argued that most of the authorities cited by the Appellant’s Counsel are basically on Sharia matters but his arguments in support thereof are mostly based on common law principles which are not applicable in the instant appeal and counsel thereafter referred this Court to paragraphs 2.9, 3.2, 3.3 and 3.4 of the Appellant’s Brief of Argument.
The Respondent’s Counsel further argued that the Court below was right when it set aside the judgment of the trial Court and ordered for a re-trial based on the reasons stated in its judgment as contained in the record of appeal and that it is not every mistake or error in a judgment that will warrant it to be set aside by the appellate Court especially when the said decision does not in any way amount to a serious miscarriage of justice.
In conclusion, the Respondent’s Counsel urged this Court to resolve the three issues in favour of the Respondent, dismiss the appeal and affirm the judgment of the Court below with substantial cost against the Appellant.
RESOLUTION OF THE APPEAL
Having summarized the briefs of arguments filed by the parties herein, the consideration of the processes and the Record of Appeal before this Court transmitted on the 22nd day of October, 2020, I shall also adopt the issues formulated by the Appellant as the issues relevant for the determination of this appeal. These issues again are:
1. Whether the lower Court’s procedure in raising the issue of incompleteness of the statement of claim of the Respondent suo moto, determination of the appeal thereon without giving the parties the opportunity to address it therein occasioned a miscarriage of justice on the Appellant.
2. Whether assuming but not conceding, that the statement of claim of the Respondent before the Trial Court was incomplete, that irregularity misled any of the parties, especially the appellant or the Trial Court to warrant the order for re-trial of the suit.
3. Whether the lower Court was right in making the order of re-trial of the suit after reviewing the whole proceedings and coming to a conclusion that the Respondent produced no credible evidence to prove her case.
This Court can only resolve the issues arising in this appeal on the strength of the contents of the record of appeal compiled and transmitted by the parties, and on no extraneous documents. I have read through the record of this appeal and I cannot find the record of the proceedings of the Upper Sharia Court and that of the Sharia Court of Appeal and same was not forwarded by means of a supplementary record.
Before this Court, the Record of Appeal was transmitted on the 22nd day of October, 2020 by E. C. Oguelina Esq., the Counsel to the Appellant and from the Appellant’s Counsel’s statement below is the order of the matter leading up to this appeal:
– The Respondent as Claimant sued the Appellant before the Upper Sharia Court Shanga, Kebbi state and the Court affirmed the claim of the Respondent.
– Dissatisfied with this outcome, the Appellant who was the Respondent at the Upper Sharia Court, appealed the case before the Sharia Court of Appeal Kebbi State holden at Yauri/Zuru judicial division wherein the Court annulled the decision of the Upper Sharia Court for being contrary to the principles of sharia and ordered the judge of Sharia Court Koko to retry the case afresh and decide the case.
– Dissatisfied again with the decision of the Sharia Court of Appeal, the Appellant therein still Appellant herein entered an appeal before this Court against the Respondent. Despite the order of this case before it came to this Court, the particulars of the Record of Appeal transmitted on the 22nd day of October, 2020 before this Court are the Certificate of Service and Settlement of Records, Appellant’s Counsel Statement, Hausa and English Translation of the Sharia Court of Appeal judgment and the Notice of Appeal. I did not find contained therein the statements of the parties and the record of proceedings of the Upper Sharia Court, and neither did I find the record of proceedings of the Sharia Court of Appeal.
Before I continue, I need to pause and observe that the importance of a record of appeal/proceeding in our appeal system cannot be overemphasized as cases have to be decided based on the record of appeal and without it, hearing of appeals will be difficult to undertake. A record of appeal/proceeding has to be duly and properly compiled to guarantee as to its correctness, and it must be meticulously checked and compared with vis-a-vis the original processes/documents filed in the matter as well as the proceedings of Court.
A complete record consists of all the proceedings in the lower Court, including the processes filed that are relevant to the determination of the appeal, as well as exhibits tendered if any.
The position of the law is that an appellate Court has a duty not to hear an appeal on incomplete records. This is because the appellate Court is entitled to look at and refer to the contents of the record in consideration of the matter before it. An appeal is a rehearing. The Court of Appeal therefore has the power to look at anything contained in the record of an appeal before it in order to arrive at a just decision of the appeal. It is not for the Appellant to leave out vital processes like the statement of the parties and the record of proceedings before the Upper Sharia Court and the Sharia Court of Appeal. No justice can be done in the appeal in such circumstances and such any decision by the Court of Appeal without these vital processes will occasion a miscarriage of justice. See the cases of CHIEF EKPEMUPOLO & ORS VS. EDREMODA & ORS (2009) 18 NWLR (PT. 1142) 966 and NWANA VS. F.C.D.A. (2007) 11 NWLR (PT. 1044) 59.
It is the completeness of the record of the lower Court transmitted to this Court that activates the jurisdiction of the Court of Appeal to hear the appeal. If for any reason the record as transmitted are not complete, the appeal is incompetent and should be struck out.
I have carefully sifted through the pages of the record of appeal herein transmitted to this Court on the 22nd day of October, 2020 and it is distinctly clear that the record of proceedings of the lower Court containing all the evidence presented by the parties respectively thereat were recklessly omitted from the record. What constitutes a complete record of appeal was demonstrated by the Supreme Court in the case of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. OJIOWHOR MONDAY AMADI & ORS (2011) LPELR – 3204 (SC), where it was held:
“On what constitutes complete record of appeal under the Rules of this Court, see Order 7 Rule 2 which states – “2(1) As soon as an appellant has filed his notice of appeal in the Court below, the Registrar of that Court or (in the case to which Rules 6 and 7 of this Order apply) the Appellant shall, with all due expedition, start to prepare the record in accordance with the provisions of this Order. (2) The record shall contain the following documents in the order set out – (a) the index; (b) a statement by the Registrar of the Court of Appeal giving brief particulars of the case and including a schedule of the fees paid in the Court of Appeal; (c) copies of the documents and proceedings constituting the Record of Appeal before the Court of Appeal; (d) copies of all documents and proceedings before the Court of Appeal; (e) a copy of the order for leave to appeal whether made by this Court or the Court of Appeal; (f) a copy of the notice of appeal; (g) a certificate by the Registrar of the Court of Appeal certifying that the notice of appeal was duly served upon the Respondent; (h) a certificate by the Registrar of the Court of Appeal certifying that the Appellant has duly and punctually complied with the conditions of appeal imposed upon him; and (i) a certificate by the Registrar of the Court of Appeal certifying that the Appellant and Respondent have either collected their copies of the record respectively and that they have been duly notified that such record is ready for collection.”
See Order 8 Rule 7 of the Rules of this Court.
It is clear that the record of proceedings of the lower Court is a fundamental factor and without which the record of appeal will be void and incompetent.
It is a fundamental principle of law that the Court of Appeal is devoid of jurisdictional competence to hear an appeal based on an incomplete record of appeal. It is indeed a well settled law that an appeal from the lower Court shall be determined by way of a rehearing and as such, the Court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire record of appeal comprising of the lower Court’s proceedings and evidence adduced thereat, to such an extent as the grounds of appeal demand. See the cases of NWANA VS. FCDA (2007) 11 NWLR (PT. 1044) 59 AT 84 PARAGRAPHS D – F, PANALPINA WORLD TRANSPORT VS. WHRIBOKO (1975) 2 SC 29, OPARAJI VS. OHANU (1999) 9 NWLR (PT. 618) 290 and UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141.
Most instructively, in the case of NWANA VS. FCDA (SUPRA) PARAGRAPHS. F – H, it was aptly held by the Supreme Court per Chukwuma-Eneh, JSC that:
“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 documentary 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.”
Hearing an appeal on an incomplete record being a jurisdictional issue that reared its head in the course of writing judgment in this appeal, the general principle of law dictates that this Court ought to invite the parties’ respective Counsel to address it on it. However, since the absence of the complete record of appeal touches on the jurisdictional powers of this Court to entertain the appeal in the first place, it is in circumstances such as this that the Supreme Court in its wisdom in the case of OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 20184 (SC), per Rhodes-Vivour, JSC recognized the necessity for a Court to raise suo motu an issue of jurisdiction and determine the same without inviting the parties to address it on it. The Supreme Court expressed in OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (SUPRA) that there are circumstances when the need to give the parties a hearing will not be necessary. It held that a judge can raise an issue suo motu without giving the parties hearing if:
a) The issue relates to the Court’s own jurisdiction.
b) Both parties are/were not aware or ignored a statute which may have bearing on the case i.e., where the Court is expected to take judicial notice.
c) When on the face of the record serious questions of the fairness of the proceedings is evident.
See the cases of EZEANYA VS. OKEKE (1995) 4 NLR PART 388 PAGE 142, A.C.B. PLC VS. LOSADA (NIG.) LTD (1995) 7 NLR PART 4005 PAGE 26; OJUKWU VS. YAR’ADUA (2009) 12 NWLR (PT. 1154) PAGE 56 and OYEWOLE VS. AKANDE (2009) 15 NWLR (PT. 1163) PAGE 119.
It is distinct in OMOKUWAJO’s case (SUPRA) that a Court can now raise issue of jurisdiction suo motu without granting the parties hearing on it.
In the instant case, it will be awfully out of place if this Court will continue with writing the judgment in this appeal on an incomplete record. It is well settled that it is the duty of an appellate Court not to hear an appeal on an incomplete record. See the case of CHIEF OKOCHI & 2 ORS VS. CHIEF ANIMKWOI & 2 ORS (2003) 18 NWLR (PT. 251) 1; (2003) 2 SCNJ 260 AT 271. This is because the record of proceedings binds the parties and the Court until the contrary is proved. See also the cases of SOMMER VS. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548; (1992) 1 SCNJ 73, ORUGBO & ANOR VS. BULARA UNA & 10 ORS (2002) 9 SCNJ 12; (2002) 9 – 10 S.C. 61 and CHIEF FUBARA & ORS VS. CHIEF MINIMAH & ORS (2003) 5 SCNJ 142 AT 168. There is a presumption of genuineness which of course is not absolute but is rebuttable, and that Court is entitled to look at and refer to the contents of the record in consideration of any matter before it. In the case of OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851) 1, the Supreme Court per Tobi, JSC, held that:
“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.”
The missing record of proceedings in this case is material to the proper determination of the issue respectively raised by the parties. The issue does not fall within the exception adumbrated by Tobi, JSC in OKOCHI VS. ANIMKWOI (SUPRA). The law is that where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice.
Having no jurisdiction to hear this appeal on an incomplete record of appeal, this Court has no other option than to strike out this appeal. This appeal is accordingly hereby struck out. I make no further order as to cost.
SAIDU TANKO HUSSAINI, J.C.A.: I have had the advantage of reading in draft the lead judgment delivered by my brother, Mohammed Baba Idris, JCA and I agree with him the reasoning leading to the conclusion that he did. I have nothing useful to add.
MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother, M. B. Idris JCA. I agree with the reasoning and conclusion. This Court has no jurisdiction to hear appeal on an incomplete record of appeal. This appeal is hereby struck out. I abide by the consequential order in the lead judgment.
Appearances:
E. C. Oguelina, Esq. For Appellant(s)
Ahmad A. Fingilla, Esq. For Respondent(s)
