YIEDAN v. ECOBANK (2022)

YIEDAN v. ECOBANK

(2022)LCN/16643(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/PH/380/2018

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

MR. SUNDAY N. YIEDAN APPELANT(S)

And

ECOBANK NIGERIA LTD RESPONDENT(S)

RATIO

THE BURDEN OF PFOOF IN CIVIL CASES

The law is settled that a plaintiff must prove his case if he must succeed in his claim. This is so because the burden of proof lies on him. Sections 131 and 132 of the Evidence Act 2011 are on this point. He is required to call evidence and prove all material averments contained in his statement of claim over which himself and the respondent have joined issues, unless it is admitted by the party on the other side. In that case, the plaintiff may be absolved from the duty on him to further lead evidence to prove it. PER HASSAN, J.C.A.

THE POSITION OF LAW ON APPEALS

An appeal is in the nature of a rehearing of all issues raised in respect of the case. It is a continuation of the original suit rather than a new action: See Order 8 Rule 2(a) of the Court of Appeal Rules 2021 which provide for the statement of the documents to be included in the Record of Appeal upon summon by the Registrar to the parties on appeal. See Alhassan Vs Ishaku (2016) 10 NWLR (Pt. 1520)230.
A complete record consists of all the proceedings in the lower Court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered. The record of proceedings serves as the reference material for the appellate Court upon which to base any of its findings. In the circumstance, the importance of the transmission of a complete record to the appellate Court cannot be over-emphasised. The importance of the record of proceeding is further illustrated by the numerous decisions of the Supreme Court to the effect that the Court, the parties and their counsel are bound by the Record of Appeal. See Sifax (Nig.) Ltd. & Ors Vs Migfo (Nig.)Ltd & Anor (2018) 9 NWLR (Pt. 1623) 138; Garuba Vs Omokhodion (2011) LPELR-1309 (SC) and Access Bank PLC Vs Onwuliri (2021) 6 NWLR (Pt. 1773) 391.
The Rules governing the compilation and transmission of records under Order 8 Rule 4(1) of the Court of Appeal Rules 2021 is that where the registrar has failed or neglected to compile and transmit the record of appeal, in accordance with the provisions of this rule i.e. at the expiration of sixty (60) days after the filing of the Notice of Appeal, it shall become mandatory for the appellant to compile and transmit the record with all the documents and exhibits necessary for his appeal.
In the light of the Court of Appeal Rules, 2021, which make it mandatory for the appellant to compile and transmit the records upon the Registrar’s default, the burden shifted to the appellant to ensure that a complete record was transmitted. PER HASSAN, J.C.A.

WHETHER OR NOT THE COURT CAN SPECULATE ON A MATTER THAT IS NOT BEFORE IT

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Port Harcourt delivered on the 2nd day of July, 2018 in suit No. FHC/PH/CS/135/2016 by Honourable Justice Adamu Turaki Mohammed.

The appellant was the claimant at the Federal High Court. By a Writ of summons and statement of claim dated and filed on the 17th of February, 2016, he claimed against the defendant, now respondent the followings:
1. An order compelling the defendant to issue and/or to produce a new debit card to the claimant.
2. An order mandating the Defendant to pay the balance of N330,000.00 in order to reimburse the claimant the sum of N1,177,331.03k being the amount of money in the claimant’s account prior to the fraudulent withdrawals.
3. The sum of N500,000.00 for transportation, all through the claimant’s ordeal to include, flight ticket to Lagos for both to and fro, hotel accommodation and other expenses the claimant incurred for more than one (1) week stay in Lagos at the Defendant’s headquarter on this matter.
4. The sum of N4,000,000.00 for trauma and psychological depression suffered by the claimant resulting from the fraudulent illegal withdrawal of his money.
5. The sum of N10,000,000.00 being for special and general damages against the defendant and cost of instituting this action.

The defendant/respondent, upon service on it of the writ filed its statement of defence and witness statement on oath dated the 8th day of April, 2016 and filed on the 11th of April, 2016 denying the claims against it.

The claimant/appellant’s reply to the statement of defence was dated and filed on the 7th of June, 2016.
In proof of his case, the claimant/appellant testified for himself as PW1 and tendered exhibits. While the defendant/respondent called a sole witness in defence of the case against it, and tendered an exhibit. At the conclusion of trial, the appellant’s claims were dismissed and judgment was entered in favour of the respondent.

Aggrieved with the judgment, the appellant appealed to this Court. The Notice of Appeal was dated and filed on the 1st of August 2018. The Notice of Appeal contained four grounds with their particulars and reliefs sought.

The appellant’s brief filed on the 15th of November, 2018, settled by M.N. Nudam Esq. has three issues distilled for determination as follows:
1. “Whether having regards to the circumstances of this appeal, has the Appellant any cause of action against the respondent in view of the relationship between them in respect of which the learned Federal High Court Judge dismissed the appellant’s case for not disclosing a reasonable cause of action against the Respondent.”
2. “Whether the learned Federal High Court Judge erred in law when he held that the Appellant failed to prove his claim against the Respondent without adverting its mind to the facts that the Respondent owed a duty of care to the Appellant and was negligent in the alleged withdrawal of some money from his account.”
3. “Whether the learned Judge of the Federal High Court erred in law by not holding that the Appellant is entitled to make any claim against the Respondent for the sum of N330,000.00 allegedly withdrawn from the Appellant’s account and in damages.”

The Appellant’s Reply Brief dated the 28th of March, 2019 was filed on the 29th of March, 2019. Learned counsel for the appellant adopted both briefs and urged the Court to allow the appeal and set aside the judgment of the Court below.
The Respondent’s brief was dated and filed on the 21st day of December, 2018.

Learned counsel for the respondent B.C. Ugwu Esq. identified a sole issue for determination which reads:
“Whether the learned trial Court was right when it held that the appellant failed to adduce evidence in support of his claims.”

He adopted the respondent’s brief and urged the Court to dismiss the appeal and affirm the judgment of the Court below.
I adopt the respondent’s sole issue in resolving this appeal.

ISSUE ONE.
“Whether the learned trial Court was right when it held that the Appellant failed to adduce evidence in support of his claims.”
Arguing, learned counsel for the appellant submitted that in considering whether or not a case discloses a cause of action against a party, the Court considers only the statement of claim and the documents filed in support of the claim. The Court was referred to Olokun Vs Aiyelabegan (2004) 2 NWLR (Pt. 1007) 504 at 516 paragraphs C–D and NNPC Vs. Tijani (2006) 17 NWLR (Pt. 1007) 29 at 41 paragraphs C–F.

Counsel submitted that the appellant is a customer of the respondent under a Bank customer relationship with savings Account No. 007138266. That the appellant was issued an ATM debit card by the respondent for the purpose of carrying out self-service banking transaction, for making withdrawals from his account with the respondent at his convenience.

Learned counsel for the appellant argued that from the facts and circumstances of this appeal, the relationship of a Banker and customer is akin to that of a debtor and creditor which the trial Court failed to evaluate in the consideration of evidence and facts in its judgment. He referred to Allied Bank (Nig.) Ltd Vs Akubueze (1997) 6 NWLR (Pt. 509) 374 at 406.

That the relationship between the appellant and the respondent, having been built on contract, the respondent owes the appellant a duty of care and is expected to exercise reasonable care and skill over a wide range of banking business within its contract with the customer. The cases of Agbanelo Vs U.B.N. Ltd (2000) 7 NWLR (Pt. 666) 534 at 550 and Selangor United Rubber Estate Ltd Vs Cradock (No.3) (1968) All ER 1073 at 1117 were referred to.

Counsel argued that as there is no statute in Nigeria directly dealing with proof in ATM fraud or electronic banking transactions like that of the United States of America, Pakistan and Australia, the position at the common law should be the applicable law. He referred to Sections 131 and 132 of the Evidence Act, 2011, to submit that with regards to the Banker-customer relationship, the burden of proof is on the bank to show how the customer’s account went into debit, failure of which will render it liable for the recovery of the debt which the customer asserts against it. Counsel relied on this submission in the case of Judd Vs Citi Bank 435, NYS 2nd 210, (1980) N.Y. MISC Lexis 2882.

Relying on Maryam Isiyaku Vs Dr. J.S. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 584 and Joseph Ifeta Vs SPDC Nig. Ltd (2006) 8 NWLR (Pt. 983) 585, it is submitted that either of the parties cannot unilaterally change or vary the terms of the contract which they unilaterally agree upon, and the respondent being in custody of the money of the appellant cannot escape liability on the basis that fraud was committed on the ATM debit card issued to the appellant.

Submitting further, learned counsel for the Appellant argued that the respondent was negligent as a bank for its failure to keep its duty of care owed the appellant as its customer which resulted into huge loss to the appellant by the unauthorized withdrawal of N330,000.00 from his account. That the respondent failed in its duty of care by failing to make its ATM fraud-proof and that it is only the respondent that knows the appellant’s ATM debit card number and the appellant’s secret pin as it is used on the respondent’s machine.

It is also the submission of counsel that the respondent owes a duty of care to carry out detailed investigation to unearth the fraud perpetrated against the appellant through the ATM debit card but made it possible for unauthorised person to break into the account of the appellant to steal his money.

Referring to the respondent’s investigation, counsel submitted that the sum of N150,000.00 discovered to be wrongly debited but not dispensed with, was duly reversed by the respondent twice due to poor network glitch. While the sum of N70,000.00 also wrongly debited from the appellant’s account to an account owned by a lady called Gift Benson domiciled with First Bank Nigeria Plc was repatriated.

Learned counsel went further to say that the respondent has failed to explain and/or to uncover how the money in its custody can be withdrawn by a third party, which has breached its duty of care owed to the appellant and therefore cannot deny liability. He referred to First Bank Plc Vs Excel Plastic Industry Ltd (2003) FWLR (Pt.160) 1624.

With regard to the respondent’s investigation in reviewing footage of its CCTV camera, in which it was discovered that a lady got physical possession of the ATM debit card and knew the appellant’s PIN to make some withdrawals on the Respondent’s ATM terminals at its different branches in Port Harcourt on the said 22/8/2015, which the appellant declined when called to identify the lady. Learned counsel submitted that the said CCTV camera footage did not show the full image of the lady involved in the unauthorized withdrawal which made it difficult to identify the lady. That ATM debit card is meant to contain within it what is referred to as an Application Transaction Counter (ATC), the ATC is incremented each time transaction is carried out on ATM and if the disputed transactions were done using the appellant’s ATM debit card, the ATC on it would have incremented accordingly which the respondent failed to prove at trial. That ATM debit card of the customer should have been subjected to a forensic analysis to establish whether the ATC had incremented or increased in accordance with each and every ATM transaction on the customer’s statement of account of whether there are any discrepancies. That absence of Authorization Request Cryptogram (ARQC) record raised the possibility that it never existed and the conclusion is that a cloned card with magnetic stripe was used in the unauthorized transaction which the respondent failed to prove. He referred to Section 140 of the Evidence Act 2011 and the case of Benjamin Agi Vs Access Bank PLC (2014) 9 NWLR (Pt. 1411) 121 at 165; Section 132 (2) of the Evidence Act, 2011 and the case of Alao Vs Kure (2000) FWLR (Pt. 6) 889 among others, to submit that he who asserts must prove.

It is also the submission of counsel that the respondent did not comply with the position of the Central Bank of Nigeria standards and Guidelines on Automated Teller Machine (ATM) operations provided at clause 3.4 (a) dealing with ATM security, which is a flagrant breach of its duty of care with regard to the appellant’s funds in its custody.

It is finally submitted that the appellant is entitled to general damages claimed from the negligence committed by the respondent to the appellant. The Court was referred to G. Chitext Ind. Vs O.B. Int. (2005) 132 LRCN 2885 and Omonuwa Vs Wahabi (1976) 4 SC 37. That a Bank being in custody and control of a customer’s account has a duty to make same available to the customer on demand. That if the learned trial Judge had accorded a liberal and broader approach in the evaluation of evidence and facts placed before him, he would not have held that the appellant failed to prove his case and dismiss same.
The Court is urged to resolve in favour of the appellant.

Responding, it is the submission of the respondent’s counsel, relying on the case of Veepee Ind. Ltd Vs Cocoa Ind. Ltd (2008) 13 NWLR (Pt. 1105) 486 at 508 paragraph A–D; Onyenge Vs Ebere (2004) 13 NWLR (Pt. 889) 20 at 37 paragraphs B–C, that it is trite law, in civil proceedings the burden of proof is on the person who would fail if no evidence at all were given on either side. Also referred to, is Section 132 of the Evidence Act, 2011. That the appellant being the plaintiff at the trial Court had the burden of proving his claim without which the case would fail.

The contention of the respondent’’s counsel is that the appellant by his statement of claim applied for and was issued ATM debit card by the respondent with which he had been withdrawing money from his account with the respondent for more than five years without problem.

That on the 22nd of August, 2015 the appellant went to ATM belonging to First Bank of Nigeria PLC, Onne branch and upon inserting his card into the ATM to withdraw money, the debit card was seized. Later on the day, the appellant received debit alerts of the withdrawals of N150,000.00; N150,000.00; N150,000.00 and N100,000.00 in N20,000.00 and N10,000.00 tranches from his account, totaling N550,000.00 but N150,000.00 and N70,000.00 that were not dispensed, were later reversed and credited to the appellant’s account.

Learned counsel for the respondent continued that it was on 24th August, 2015 being a working day on Monday that the appellant made a report to the First Bank about his seized debit card but was informed by the operational manager of the One branch of the bank that his debit card was not seen inside the ATM Machine. That was when the appellant was advised to report to the respondent.

The argument of the learned counsel is that the respondent cannot be accused of any wrongful act in this circumstance. That the use of the debit card was exclusively the act of the appellant and where there was any negligence in the loss of the debit card and subsequent unauthorized withdrawal by a third party, the negligence cannot be attributable to the respondent. That the ATM which the appellant claimed seized the debit card was not owned or operated by the respondent but by the First Bank of Nigeria PLC, and the respondent cannot therefore be held liable.

Submitting further, that the withdrawals of monies from the appellant’s account were done with the debit card and before the appellant applied to block the debit card. That the withdrawals were possible because the person who carried out the withdrawals knew the appellant’s PIN which was not known to the Respondent. Counsel argued that it was not wrongful for the respondent to allow withdrawals from the appellant’s account with the use of the appellant’s debit card and PIN. That the reversal of the debits of N150,000.00 and N70,000.00 is not a wrongful act that would make the respondent liable for the withdrawals of N330,000.00 from the appellant’s account, because the N150,000.00 debit was a wrongful debit on the appellant’s account caused by computer glitch which did not result in a withdrawal, while the N70,000.00 was a debit of the appellant’s account following the use of the debit card on First Bank ATM when no cash was dispensed. Hence the N150,000.00 and N70,000.00 credited to the appellant’s account were reversals of debits for withdrawals that were not made.

It is also the submission of the respondent’s counsel that not only that the statement of claim does not disclose any cause of action but the evidence of the appellant has not also established any wrongdoing by the respondent or any breach of the respondent’s contractual obligation to the appellant. That neither the written statement on oath nor the documentary evidence tendered by PW1 as exhibits “A – E” linked the respondent to the claims of the appellant.

Learned counsel argued that exhibit “D” is the respondent’s reply to the appellant but the appellant did not respond to the contents of Exhibit “D” which clearly indicted him for negligence. He submitted that the trial Court calmly evaluated the evidence to come to impregnable findings at pages 118–119 of the record.

Relying on the case of Mainstreet Bank & Ors Vs Hammed (2018) LPELR-455-57 (CA) at 39 – 41, the Court is urged to uphold the findings of the trial Court which is not perverse.

In response to the appellant’s submission on contractual duty of care owed him by the respondent as a result of banker/customer relationship, counsel submitted that the Appellant has failed woefully to support any such breach of contract by the respondent from the evidence led, and the authorities cited by the appellant’s counsel are inapplicable to this case. We are urged to discountenance same.

Also in response to the submission of the appellant’s counsel on Application Transaction Counter (ATC), Authorization Request Cryptogram (ARQC) and Central Bank of Nigeria Standards and Guidelines on Automated Teller Machines (ATM) operation in Nigeria, the respondent’s counsel submitted that neither of these was pleaded nor evidence given at the trial Court. That the written brief of counsel is no substitute for the evidence which ought to have been led at the trial Court. The Court was referred to Presidential Implementation Committee on Federal Government Landed properties Vs Aywila & Anor (2017) LPELR-43204 (CA) 32-33 and urged the Court to discountenance the submission on the application of ATC, ARQC on ATM which were not pleaded nor evidence led at trial.

It is finally submitted that failure of the appellant to link the respondent with his claims, the Court is urged to resolve in favour of the respondent, dismiss the appeal and affirm the judgment of the trial Court.

The Reply brief is an embellishment of the appellant’s main brief which should not be the case. The reply brief is unnecessary because the respondent did not raise any new or fresh issue in its brief. The Reply Brief is therefore discountenanced.

The case of the appellant put briefly, is that the respondent Ecobank Nigeria Limited caused to be removed the sum of N330,000.00 from Account No. 0071038266 held by the appellant with the respondent without his authorization.

The claim of the plaintiff now the appellant is set out at pages 4–7 of the record of appeal which is re-produced earlier in this judgment.

The law is settled that a plaintiff must prove his case if he must succeed in his claim. This is so because the burden of proof lies on him. Sections 131 and 132 of the Evidence Act 2011 are on this point. He is required to call evidence and prove all material averments contained in his statement of claim over which himself and the respondent have joined issues, unless it is admitted by the party on the other side. In that case, the plaintiff may be absolved from the duty on him to further lead evidence to prove it.

The appellant’s claims are set out in his statement of claim reflected at pages 4-7 of the record. The respondent having joined issues with the appellant denied all the claims of the appellant but admitted paragraph 5 of the statement of claim to the extent that the debit card was issued to the appellant which is under his control and not under the control of the respondent or its management.

At trial, the appellant testified as PW1 after adopting his statement on oath filed on 17/2/2016. He gave evidence that he opened a saving account Number, 0071038266 with the respondent, Ecobank Nigeria Limited. That he applied for the issuance of a debit card which was approved and issued to him by the respondent and had been using the debit card to withdraw money from his account with the respondent without any problem for about a period of five years.

He went further to say that it was on a Saturday being the 22nd of August, 2015 at about 12:30Pm, he went to the branch of First bank PLC at Onne to withdraw some money from his savings account by the use of his ATM debit card, which he inserted into the ATM Machine, but was seized by the said First Bank ATM Machine. He reported to the security man on duty at the Bank premises, who advised him to come back on Monday the 24th of August, 2015 to report to the management.

Further in his evidence, he said to his surprise, at about 15.47 hrs on the same 22/8/2015, he received on his phone a debit alert of withdrawal of the sum of N150,000.00 from his account at one of the respondent’s branch, Olu Obasanjo Road Port Harcourt, at about 15.49 hrs there was another withdrawal of the sum of N150,000.00 at the same branch of the bank in series of N20,000.00, N20,000.00, N20,000.00, N20,000.00, N20,000.00, N20,000.00, N20,000.00 and N10,000.00 respectively. Also at about 17:13hrs same day the sum of N150,000.00 was withdrawn at one of the respondent’s branch at Ikoku I Ikwere Road branch of the bank and finally at about 18:48 hrs same day the sum of N100,000.00 was withdrawn at the Genesis Ikwere Road Branch of the bank in Port Harcourt which amounted to N550,000.00 debited from the appellant’s account.

It is also the evidence of PW1 (Appellant) that on Monday the 24th of August, 2015 he reported the matter to the operational manager of the First Bank Plc, Onne branch that his Ecobank debit card was trapped and seized by First Bank ATM Machine, wherein the ATM Machine operator of First Bank said he did not see the appellant’s Ecobank ATM debit card in the machine, but was advised to go to the respondent’s branch at Trans-Amadi where he opened his account which he did. He said he was given an incident form to fill, so as to locate the person in possession and use of his debit card. He said he was given one week to come back, but to no avail.

PW1 (appellant) said he was further advised at the respondent’s branch of Trans-Amadi Port Harcourt, to go the respondent’s headquarter’s in Lagos to make the same complaint which he did. At Lagos, he was advised to return back to the respondent’s branch at Trans-Amadi, Port Harcourt where he opened his account, that steps will be taken to address his case within a month. He said while waiting within the said period, his account was credited with the sum of N150,000.00 and N70,000.00 out of the N550,000.00 illegally withdrawn by the agent of the respondent. He identified documents mentioned in paragraphs 11, 12 and 14 of his statement of claim which were admitted into evidence as exhibit “A” the letter dated 21st October, 2015, exhibit “B” a letter dated 26th October, 2015 exhibit “D” is a letter dated 12th November, 2015 while the Bank statement for the period dated 1st January 2015 to 25th August, 2015 is exhibit “E”.

PW1 (Appellant) finally told the Court that failure to get his money from the respondent, he instructed his solicitors to write a letter of demand to the respondent which the respondent responded to, that the matter is under investigation. That after the exchange of correspondences between the parties to no avail, he instituted this action against the respondent.

The respondent gave evidence through Kate Etitinwa, a banker who testified as DW1 in defence of the action against it. She adopted her statement on oath made on the 11th of April, 2016 as her evidence in chief.

However, the statement of defence of the respondent and the witness statement on oath of the witness are not contained in the record. From the index there is no reference made to the page of the statement of defence. It is only the defendant’s final written address filed on the 15th of March, 2018 that was reflected therein. I have painstakingly gone through the record from page 1 to the end of it at page 119, neither the statement of defence of the respondent nor the witness statement on oath of the respondent’s witness was found in the record. The evidence of DW1 at pages 102–105 under cross-examination cannot be acted upon in determing the issues in this appeal in the absence of the statement of defence and her witness statement on oath. The final written address of March, 2018 filed by the appellant’s counsel as shown at pages 38–49 of the record cannot take the place of evidence no matter how well conducted.

An appeal is in the nature of a rehearing of all issues raised in respect of the case. It is a continuation of the original suit rather than a new action: See Order 8 Rule 2(a) of the Court of Appeal Rules 2021 which provide for the statement of the documents to be included in the Record of Appeal upon summon by the Registrar to the parties on appeal. See Alhassan Vs Ishaku (2016) 10 NWLR (Pt. 1520)230.
A complete record consists of all the proceedings in the lower Court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered. The record of proceedings serves as the reference material for the appellate Court upon which to base any of its findings. In the circumstance, the importance of the transmission of a complete record to the appellate Court cannot be over-emphasised. The importance of the record of proceeding is further illustrated by the numerous decisions of the Supreme Court to the effect that the Court, the parties and their counsel are bound by the Record of Appeal. See Sifax (Nig.) Ltd. & Ors Vs Migfo (Nig.)Ltd & Anor (2018) 9 NWLR (Pt. 1623) 138; Garuba Vs Omokhodion (2011) LPELR-1309 (SC) and Access Bank PLC Vs Onwuliri (2021) 6 NWLR (Pt. 1773) 391.
The Rules governing the compilation and transmission of records under Order 8 Rule 4(1) of the Court of Appeal Rules 2021 is that where the registrar has failed or neglected to compile and transmit the record of appeal, in accordance with the provisions of this rule i.e. at the expiration of sixty (60) days after the filing of the Notice of Appeal, it shall become mandatory for the appellant to compile and transmit the record with all the documents and exhibits necessary for his appeal.
In the light of the Court of Appeal Rules, 2021, which make it mandatory for the appellant to compile and transmit the records upon the Registrar’s default, the burden shifted to the appellant to ensure that a complete record was transmitted.

A Court is not entitled to speculate on a matter that is not before it. On no account must a Court deliberate on an incomplete record.
In the instant case, without seeing the statement of defence and the witness statement on oath of the respondent’s witness, the Court would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice. The duty of the Court is always to do substantial justice between the parties.
The compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction of the appellate Court. Where the Court is bereft of jurisdiction, the proper order to make is to strike out the appeal. This is because the Court is not entitled to take cognizance of any document not contained in the record before it. See Brittania-U (Nig.) Ltd Vs. Seplat Petroleum Development Co. Ltd (2016) 4 NWLR (Pt. 1348) 397 and Okechukwu Vs Obiano (2020) 8 NWLR (Pt. 1726) 276.
Accordingly, the appeal is struck out. Parties to bear their respective costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, TANI YUSUF HASSAN, JCA availed me the opportunity of reading the draft copy of the judgment just delivered by him in this appeal.

I agree with his reasoning and conclusion that this Court is bereft of the jurisdiction to entertain this appeal. Accordingly, the appeal is struck out by me. I abide by the order on costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, T. Y. Hassan, JCA graciously obliged me with a draft of the lead judgment which he has just delivered, and in which the appeal was adjudged incompetent and was struck out because the Record of Appeal compiled was found to be devoid of some of the material processes filed in the lower Court, and the contents of which may have informed the judgment of the lower Court delivered on 2/07/2018.

The issue of incomplete Record of Appeal has been coming before this Court with so much regularity that it is high time that Appellant’s Counsel paid great attention to it. Let me add, that compilation of Record of Appeal is meant to be an exercise in which both Counsel, especially the Appellant’s Counsel should attend in order to make a well informed decision as to which of the processes and documents that will be material and useful in order to effectively argue the ground(s) of appeal raised in the Notice of Appeal, and to assist the Court of Appeal to have a full understanding as to what processes and documents the lower Court considered before reaching its decision on the subject matter of the dispute. It is not a proper or tidy professional practice, where some important processes or documents are omitted from the Record compiled and neither is it helpful when the Record contains overtly casual documents, notices, letters or processes that really do not form or contain any crucial fact(s), information or evidence that informed the basis of the decision reached and being appealed against.
I wholly subscribe to the decision reached that the appeal be struck out for want of jurisdiction. I abide by the consequential orders made as to costs in the lead Judgment.
Appeal is struck out by me too.