DAMISHI & ANOR v. ZURGU & ORS
(2022)LCN/16316(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/K/576/2014
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. YAKUBU DAMISHI 2. LAMI DAMISHI APPELANT(S)
And
1. ZAINAB ZURGU 2. LAMI TIM 3. ZULAI MADACHI 4. BARAU DAMISHI RESPONDENT(S)
RATIO:
THE ROLE OF THE COURT AND THE DENIAL OF FAIR HEARING
In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held: “The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.”
A party cannot complain of denial of fair hearing, after he had, in fact, been heard on an issue and his submission considered, before the Court reached its decision. See the case of Chelvron Nig Ltd Vs Osigwe(2014) LPELR – 23534 (CA); Jude Agbaso Vs Simeon Iwunze & Ors (2014) LPELR – 24108 (CA); FHA Vs Kalejaiye (2011) All FWLR (pt.552) 1633; Newswatch Communications Ltd Vs Atta (2006)12 NWLR (pt. 993)144.” ITA GEORGE MBABA, J.C.A.
THE COURT BASING ITS DECISION ON AN INCOMPLETE RECORD AND WITHOUT VITAL DOCUMENTARY EXHIBITS
See also Nwana Vs FCPA (2007) LPELR – 2101 SC, where it was held:
“…It is also conclusive in this case of the proposition that the lower Court has based its decision on an incomplete record as transmitted to it, that is, without the vital documentary exhibits to contend in the appeal. The lower Court is therefore wrong to have decided this case without having the privilege of seeing these documents i.e. the exhibits and to have based its decision on speculation, See Panalpina v. Wariboko (supra), Oparaji v. Ohanu (supra) and Abacha v. Fawehinmi (supra). ITA GEORGE MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/147/2008, delivered on 11th July, 2013 by Hon. Justice Nuhu Yahaya Galadanchi, wherein the learned trial Judge entered judgment for the plaintiff, (now Respondent).
The claim at the lower Court was filed on 6/6/08, for declaration of title to land in favour of the plaintiffs and for injunction and damages.
Upon service of the writ of summons on the Defendants (Appellants herein) they engaged the services of a legal practitioner, Adamu Abubakar Esq., who filed a memorandum of Appearance for them, on 16/7/2008. Appellants had filed notice of preliminary objection against the Suit, on 20/5/2009, on the grounds that:
“That the Suit No. K/247/2008 is not premised upon any known law or rules of Court/procedure, as this Suit is a multiplicity of an action having being (sic) determined at Upper Sharia Court, Kano, in Suit No. CV/186/07 and judgment entered on 8th September, 2008 and therefor (sic) incompetent before this Honourable Court.
That having placed our reliance on the said preposition, that the case is an automatic res-judicata, which an option is an appeal and therefore this Court lacks jurisdiction to entertain same against the Defendants/Applicants”
PARTICULARS
That the suit against Defendants/Applicants is an abuse of Court process, having being (sic) determined to its finality between the parties and this Court is not an appellate Court nor has an appellate jurisdiction over the matter, and at the same time cannot constitute itself as an appeal Court as the parties are same, subject matter same in in this suit an (sic) the case of No. CV/186/07 before Upper Sharia Court, Kano, determined. (See Page 28 of the Records of Appeal).
Defendants/Applicants filed affidavit and written address in support, and the Plaintiffs filed counter-affidavit and address to contest the Preliminary objection. The preliminary objection was said to have been heard, but I cannot find any lead in the Records of Appeal, how the trial Court resolved the preliminary objection. I cannot also find how, and when the trial Court heard the substantive case. But on page 68 of the Records of Appeal, there is a Court Order, that: “Upon reading the writ of summons and testimony of the plaintiff’s witness, which the defendants were absent and represented and did not cross-examine the witnesses:
And after hearing, Ibrahim Adamu Esq., of Counsel for the plaintiffs. IT IS HEREBY ORDERED THAT:-
Judgment is hereby entered for the plaintiffs and against the defendants as follows:
(1) It is hereby declared that the farmland at Tim in Kibiya Local Government Area with the following boundaries
East – Karofi
West – Dutse
South – Dutse
North – Garbanfangai, belongs to the estate of late Amadu the father of the plaintiffs.
(2) The defendants Yakubu Damashi and Lami Damashi, together with their agents, privies etc, are hereby perpetually restrained from encroaching, trespassing, cultivating, alienating etc, the farmland having the boundaries mentioned in order 1 above….” (The order was made on 27/7/2011)
On becoming aware of the judgment, Appellants filed a motion, on 14/2/2012, seeking:
1. An Order for Extension of time within which to apply out of time for an order to set aside the judgment of this Honourable Court delivered on the 27thJuly, 2011, against the judgment of this Honourable Court.
2. An order to set aside the judgment of this Honourable Court, delivered on 27th July, 2011 against the judgment Debtor/Applicants.
3. Any other order(s) as this Honourable Court may deem fit to make in the circumstances of this case. (See Page 79 of the Records)
The motion was supported by affidavit by Appellants, to the effect that they were advised by their Counsel A. T. Shehu, Esq., (of Adamu Abubakar & Co. Law Firm) not to bother to be coming to Court daily, as he (Counsel) was there to represent them and would tell them when they would be needed; that they were not aware of what transpired in Court, until they were served with notice of hearing, sometime in 2011; they did not know that their said lawyer had withdrawn further appearance for them, and only got to know that judgment had been entered against them, towards the end of 2011, as the Respondents started to visit the farmlands, the subject matter of the suit. They deposed in paragraph 13 as follows:
“That the Applicants were surprised to hear judgment had since the 27th July, 2011 been entered against them and also that apart from Counsel abandoning appearance on their behalf, no statement of defence was ever entered or filed for them in this case, to indicate that the Applicants have a defence to offer in this Suit.”
The Respondents had filed processes to oppose the motion. After hearing the application, to set aside the judgment (which was opposed with counter-affidavit by Respondents) the trial Court ruled against the Applicants (Appellants herein) and said:
“Having carefully studied the prayers of the Applicants before the Court, all the paragraphs of the affidavit, together with the written address in support of the application. All the paragraphs of the counter affidavit together with the written address attached and the record of this Court, it is very clear from the record of this Court, that the civil summons in this case were received by the Applicants on 24/6/2008, after which the matter started before his Court on 12/3/2009. That from the start of the matter up to 27/7/2011, when judgment was entered by this Court, the judgment debtor/Applicants failed to filed (sic) their statement of defence in this case, that is to say for good 3(three) years the judgment debtor/applicants failed to file their statement of defence in this case.
The record of this Court is also very clear that even when the matter was going on before this Court, the counsel for the judgment debtor/Applicants was not serious in prosecution (sic) the matter as a result of which many hearing notices were served on him for his failure to be appearing in the matter.
That up to the time i.e. 9/12/2010 when counsel for the applicant wrote a letter to this Court for his withdrawal in the case, there was no statement of defence filed. That even after that letter for withdrawal, the applicants were served with hearing notices dated 3rd March, 2011 and 18/3/2011, respectively, but they failed to appear and they now file this present application after a period of one year. For this there is no any justification for them to say that they did not know what was going on in the matter… they are aware that they slept on their rights and the law only help the vigilant not the indolent… there will be no justification to grant this application, same is hereby refused.” (See Pages 11 – 12 of the Records)That is the decision Appellants appealed against, as per their notice and grounds of appeal, filed on 25/7/2013, with three grounds of Appeal – (Pages 138 to 141 of the Records of Appeal).
Appellants filed their Brief of arguments on 6/7/2017, upon the transmission of the Records of Appeal on 31/2/2014 and deemed duly done on 18/5/2017. The Appellants’ brief was accepted as the sole basis for hearing this appeal, on 25/9/18, upon the Respondents’ failure to file their brief(s).
In the Appellants’ brief, they raised 2 issues for the determination of the Appeal, namely:
(1) Whether the trial Court was right in refusing the application to set aside the judgment dated 11th July, 2013 (sic);
(2) Whether the Appellants were afforded fair hearing to conduct the case before the trial Court.
Appellants’ Counsel did not, formally, relate any of the issues to the 3 grounds of the appeal. But a close perusal of the issues and the grounds, would reveal that the issues 1 and 2 appear to flow from the grounds 1 – 2 and 3 of the appeal, respectively. The said three grounds, without stating their particulars, were:
(1) The ruling is altogether baseless, unwarranted and cannot be supported, having regard to the affidavit evidence presented before the trial Court.
(2) The learned trial Judge erred in law and misdirected himself in facts, when he held at page 2 paragraph 3 of the ruling, as follows:
“That from the start of the matter up to 27/7/2011 when judgment was enter by this Court, the judgment Debtor/Applicants failed to file their statement of defence in this case, that is to say, for 3 years the Judgment Debtor/Applicants failed to file their statement of defence in this case.”
(3) The learned trial Judge erred in law and misdirected himself, in fact, when he held in Page 2 Paragraph 4 of the ruling as follows:
“The only thing here is that they are aware but they slept on their rights, and the law only helps the vigilant, which occasioned miscarriage of justice.”
I therefore consider the issue 1 to have derived from grounds 1 and 2 of the appeal, while the issue 2 flows from ground 3 of the appeal, and I shall consider them accordingly.
Arguing the issue 1, Counsel for Appellants, B.Y. Gambo Esq., who settled the brief, said that it is a cardinal principle of law that once an application is placed before the Court, same must be heard or determined. He relied on the case of Teno Eng. Ltd Vs Adisa (2005) 10 NWLR (Pt.933) 346 SC, to the effect that:
“A trial Court generally has power to set aside its decision and relist the matter for hearing, where judgment has been given not on consent of the parties or on the merit of the case. The power of the trial Court to do so is discretionary and must be exercised judiciously and judicially guided by the following principles, namely:
A) reason for the applicant’s failure to appear at the hearing or trial of the case that resulted in judgment given in his absence;
B) whether there has been undue delay in making the application to set aside the Judgment, so as to prejudice the party in whose favour the judgment subsist would be prejudiced or embarrassed upon an order for rehearing the case being made so as to render such a course inequitable;
C) whether the Applicants conduct through out the proceedings, i.e. from the service of the writ upon him to the date of judgment has been such as make his application worthy of sympathetic consideration. All the above requirements are construed conjunctively and not disjunctively. In other words, all the matters should be resolved in favour of the Applicant before the default judgment could be set aside and the suit relisted for hearing.”
Counsel said that, from the Records of Appeal, particularly, pages 8-13, the Appellants, having discovered that the judgment was against them, and there being a lapse in the communication with the Counsel, previously handling the case, who then filed a Motion on Notice for extension of time to set aside the judgment; that going through the ruling made, the trial Judge made speculations as to the issuance of hearing notices, dated 3/3/2011 and 18/3/2011, none of which was produced in the Records of Appeal. Counsel said that it is trite law that judgment delivered, without merit, ought to be set aside, to enable the other party not being heard to enter his defence. He relied on the case of Ibok Vs Honesty III (2007) 6 NWLR (Pt. 1029) 55.
On issue 2, Counsel said that Appellants were not afforded fair hearing to conduct their case at the lower Court. He referred us to pages 80 – 82 of the Records, where he said, the previous Counsel withdrew his service, unknown to the Appellants, and no hearing notice was issued to them.
Counsel cited Section 36(1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) on the need for fair hearing to be observed in every Court proceeding. He also relied on the case of R Vs Cambridge University (1923) 1 STR 557, BON Vs Adegoke (2006) 10 NWLR (Pt 983) 339, where this Court said:
“A party cannot be deprived of its rights to fair hearing as punishment for lapses of his counsel. It is necessary to draw a line between the fault of counsel and the fault of a party.”
Counsel, again, referred to the part of the ruling, that Counsel to the Appellant had withdrawn representation for them and that hearing notices were ordered for Appellants, but argued that no single hearing notice was served on Appellants, personally, that Appellants were not aware of the withdrawal of their Counsel and of what transpired in the Court. Thus, he said Appellants were denied fair hearing by the trial Court, after failing to grant the application to set aside the said judgment. He relied on the case of Somaison kahonlor Co. Ltd Vs Adzege (2011) FWLR (Pt 68) 1104; Olaye Vs Chairman Medical & Dental Practitioners Investigating Panel (1997) 5 NWLR (Pt 506) 550 at 562-565; Eshenake Vs Gbinije(2006) NWLR (Pt 961) 228 CA; BON Vs Adegoke (supra).
Counsel urged us to resolve the Issues for Appellants and to allow the appeal, set aside the decision of the trial Court and order for retrial of the case.
RESOLUTION OF THE ISSUES
I should state that at the hearing of this appeal, the Respondents were represented by their Counsel, Shehu Adamu Kawu Esq., who told the Court that they did not file any brief.
I shall adopt the two issues donated by Appellants for consideration of this appeal, and shall take them, together.
Was the trial Court right in refusing to set aside the ruling of the Court, made on 27/7/2011, in the circumstances of this case, with the complaint of denial of fair hearing by Appellants in reaching the said ruling?
Appellants had referred us to some puzzling and curious depositions in their affidavit in support of their application to set aside the ruling of the Court made on 27/7/2011, against Appellants and granting the reliefs sought by Respondents (as plaintiffs), for declaration of title to land, injunction and damages.
The affidavit was deposed to by Aisha Mohammed, a litigation secretary in the law firm of Appellant’s Counsel, who said she had the consent and authority of both Appellants and her employers (learned Counsel in the law firm) to make the depositions. In paragraph 3-14 of the affidavit, she averred:
(3) “That Yakubu Damishi & Lami Damishi, the Applicants herein informed me on the 31st January, 2012 in our office described above at about 2:30pm of the facts, which I verily believe to be true…
(4) That when they were served with the writ of summons in this case, they engaged the services of Adamu Abubakar & Co., to undertake their defence in this matter.
(5) That though Adamu Abubakar Esq., in person did not go to Court with them, he assigned another lawyers in the office in the person of A. T. Shehu to see to their defence in this suit.
(6) That the said A. T. Shehu Esq., after attending the Court for the very first time strictly urged the Appellants not to come to Court with him but to await briefing from him after every sitting of the Court on the things that transpired in Court since their matter is a civil suit not a criminal case requiring their every presence in Court.
(7) That based on A. T. Shehu’s assurances to the Applicants that he will put in the best of his professional skill and competence in their defence, the Applicants simple (sic) believed him and stayed back instead of attending Court along with their counsel.
(8) That Applicants having reposed trust and confidence in the ability of their lawyers to defend their interest in knowing that the said A. T. Shehu Esq., had not only been absenting himself from Court but had equally written to withdraw further appearance for them.
(9) That had the said lawyer informed them or even the firm of Adamu Abubakar & Co., that they were not interested in appearing for the applicant herein, Applicants would have engaged the service of another counsel to conduct their defense in this suit from where Adamu Abubakar & Co., stopped.
(10) That at a point in time in early 2011 the Applicants were served with Hearing Notice twice through their Ward Heard and they simply returned the Hearing Notice to the office of Adamu Abubakar & Co., their counsel not knowing that it meant the Applicants should come to Court in person because Adamu Abubakar & Co. had withdrawn further appearance for them.
(11) That Applicants only get (sic) to know that, a judgment has (sic) been entered against them towards the end of 2011 when the Respondents and their Representatives started visiting the farmland which is the subject matter of dispute in this suit with prospective buyers and making statements indicating attempt at executing a judgment.
(12) That following the events of paragraph 11 above, the Applicants decided to come to Court on their own to find out the truth of what was going on since no briefing or explanation was forthcoming from Adamu Abubakar Esq., A. T. Shehu Esq., or any other counsel from Adamu Abubakar & Co. to the Applicants as promised.
(13) That the Applicants were surprised to hear that judgment had since the 27th July, 2011 been entered against them and also that apart from counsel abandoning appearance on their behalf, no statement of Defense was ever entered or filed for them in this case to indicate that the Applicants have a defense to offer in this suit.
(14) That if given an opportunity to be heard, the Applicants will timeously both file their defense and lead evidence to prove their defence to enable the Court adjudicate this suit on the merit….” (See pages 80-82 of the Records of Appeal).
The Respondents filed a counter-affidavit, as per pages 107 to 109 of the Records to deny the above averments by Appellants. Paragraphs 3(d)-(g) stated:
(a) The applicants are aware of this suit from its commencement because they were served with writ of summons, statement of claim, they engaged and retained the service of Adamu Abubakar & Company, they filed a preliminary objection heard and determined and were subsequently served with services of hearing notices in this suit and all in this Court’s file.
(b) The Counsel to Applicants/Judgment Debtor, Adamu Abubakar and Company have not withdrawn their appearance in this suit.
(c) After the Law Firm of Adamu Abubakar & Company wrote a letter for a purported withdrawal from defending the Applicants, the applicants were on two occasions served with hearing notices at their villages.
(d) At the second sitting of serving the Applicants, the head of chambers of Adamu Abubakar and Company in the person of Adamu Abubakar appeared and told this Court that henceforth he would be the person to conduct the case personally and date was taken with him upon his application.
(e) This Honourable Court did not deliver judgment until it satisfied itself that no time this suit came up without serving the applicants with hearing notices. The copy of the hearing notices are already in the Court’s file.
(f) The judgment Creditors Respondents have executed the judgment of this Court by taking possession of the farmland subject matter of this suit since September, 2011.
(g) The judgment creditors have jointly sold the farmland to a third party (Alhaji Sani Kumurya) and the aid Alhaji Sani Kumurya has started clearing same for incoming harvest. The copy of receipt of purchase is hereby attached and marked as Exhibit A.
I have not seen anything in the above counter-affidavit controverting the alleged, misleading role of Appellant’s Counsel, Shehu Esq., advising Appellant’s not to bother to come to Court, and rather await briefings from him, and the Counsel later withdrawing from the case, without their (Appellant’s) knowledge, abandoning the case, and keeping them in the dark, until the Respondents got Judgment and came for execution. The Respondents’ Counter Affidavit, rather appears to throw in more confusion, when they claimed that Appellant’s Counsel never withdrew from the Suit! That also appears to contradict what the trial Court said, when it held:
“The record of this Court is also very clear that even when the matter was going on before this Court, the Counsel for the judgment debtor/Applicants was not serious in prosecution (sic) the matter as a result of which many hearing notice (sic) were serve (sic) on him for his failure to be appearing in the matter. That up to time i.e. 9/12/2010 when counsel for applicant wrote a letter to this Court for his withdrawal in the case, there was no statement of defence filed. That even after that letter for withdrawal, the applicants were served with hearing notices, dated 3rd March, 2011and 18/3/2011 respectively, but they failed to appear and they now file this present application, after a period of almost one year.”
The above findings and ruling of the trial Court appear to confirm the averments of the Appellants, about the obvious lapses of their Counsel in the handling of the defense of Appellants, suggesting a compromise or negligence which, if established, should rather entitle the Appellants to remedy against their said Counsel.
The Court held that upon the letter of withdrawal of representation in the case by the Appellants’ Counsel, the Appellants were issued hearing notices on 3/3/2011 and 18/3/2011. Appellants had admitted being served with such hearing notices, but advanced arguments, tracing to the mal-handling of their case by their Counsel.
But the alibi put up by Appellants, as to why they did not go to Court, that their lawyer told them not to be attending Court, does not sound reasonable and convincing, as they had a duty to attend Court, despite what their lawyer had told them. And, on being served with the hearing notices, they had a duty to meet their said lawyer to know what had transpired in Court or go to Court to find out.
I do not therefore see how I can believe them, that Appellants were not put on notice of the failings of their Counsel, and given opportunity to come into the case (with a new counsel to prosecute the case, if they were diligent). The fact that Respondents deposed that Appellants’ Counsel never withdrew from the suit, may tend to compound the confusion as to what, actually, transpired in the case, but one thing appears, obvious, which is that, Appellants were not committed to the prosecution of the case, and were grossly negligent.
Appellants had admitted that they got the hearing notices twice; they sent the same to their said Counsel, unknown to them that he had applied to withdraw from the case! That, in my view, should have been the more reason they should have verified what happened, by going to the lawyer’s office and/or to the Court, to find out the state of the case.
Appellants would not be justified to complain of denial of fair hearing, in the circumstance, having been given opportunity to come to Court and present their case. See INEC Vs Mbawike (2017) LPELR – 41623 CA:”…One cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. See the case of Kaduna Textiles Ltd Vs Umar (1994)1 NWLR (Pt. 319) 143 at 159, where it was held: “Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation, it fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties as well as the Court, that a recalcitrant and defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not…” See also Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95; (2006)12 NWLR (Pt.993)144; (2006) LPELR -1986 SC, where the Apex Court said: “It is the duty of the Court to create then atmosphere for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing. That is not fair to the Court, and Counsel must not instigate his client to accuse the Court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party” Per Tobi JSC. I think in this case that Appellants appeared to have demonstrated consistent lack of interest to defend, as shown in delays to file memorandum of appearance and defence or come to Court to defend it, and the case having been adjourned for judgment but later aborted on the plea of the Appellants, to enable them take steps to defend, but again abandoning the defence, and defying the Court order, I do not think Appellants are right to complain of denial of fair hearing, when the Court ran out of patience to further indulge them in their dilatory games. The Respondent too had aright to fair hearing of this old case, to a conclusion. A party who fails to utilize opportunity of prosecuting his case, cannot turn round to blame the Court for not being given fair hearing. GTB PLC Vs FADCO INDUSTRIES Nig. LTD. & Anor(2013) LPELR 21411 (CA). In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held: “The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.”
A party cannot complain of denial of fair hearing, after he had, in fact, been heard on an issue and his submission considered, before the Court reached its decision. See the case of Chelvron Nig Ltd Vs Osigwe (2014) LPELR – 23534 (CA); Jude Agbaso Vs Simeon Iwunze & Ors (2014) LPELR – 24108 (CA); FHA Vs Kalejaiye (2011) All FWLR (pt.552) 1633; Newswatch Communications Ltd Vs Atta (2006)12 NWLR (pt. 993)144.”
I have also scanned through the entire Records of Appeal and have not seen how and when evidence was taken in the case, to warrant the decision reached on 27/7/2011, this being a case for declaratory reliefs, on title to land, injunction and damages, which required the claimants to prove same with concrete evidence and succeed on the strength of their case, not on the weakness of the defence.
But the failure to produce the said judgment in the Records of Appeal was that of Appellants who filed this Appeal. They had the duty to compile and transmit the Records of Appeal to reflect the evidence and exhibits and relevant, vital documents at the Lower Court, relied on to reach the decision. To omit such documents and the very judgment, appealed, against, is a fatal error, which makes the Records of Appeal, incomplete!
See Order 8 Rule 7 of the Court Appeal Rules, (2021) and the case of Garba & Ors Vs Ummuani (2021) LPELR – 9841 (CA), Mohammed Vs The State (2021) LPELR – 55682 CA.
In the case of Jack Vs A.G. Rivers State & Ors (2013) LPELR – 22867 (CA), it was held:
“On the authorities of EKPEMPOLO v. EDREMODA (2009) 8 NWLR (pt. 1142) 166 and OKOCHI v. ANIMKWOI (2003) 18 NWLR [pt. 251] 1, this Court has no duty to hear appeal on an incomplete record, especially when the missing portion is very vital. In other words, this Court has no jurisdiction or competence to hear any appeal on an incomplete record. Order 8 Rule 7(d) of the Court of Appeal Rules, 2011 makes it imperative that every record of appeal shall contain a copy of the notice of appeal. Therefore, the Notice of appeal is a very vital portion of the record of appeal. The consequence for failure to transmit complete record of appeal within the time prescribed by Order 8 Rules 1 and 4 of the said Rules is an order dismissing the appeal for want of diligent prosecution under Order 8 Rule 18 of the Court of Appeal Rules, 2011. Consequently, appeal no CA/PH/287A/2005 is hereby dismissed.” Per EKO, JCA
For failing to produce the main judgment which Appellants sought to be set aside, delivered on 27/7/2011, and even the ruling relating to the preliminary objection, I think Appellants defaulted, greatly, suggesting they were trying to hide something!
See also Nwana Vs FCPA (2007) LPELR – 2101 SC, where it was held:
“…It is also conclusive in this case of the proposition that the lower Court has based its decision on an incomplete record as transmitted to it, that is, without the vital documentary exhibits to contend in the appeal. The lower Court is therefore wrong to have decided this case without having the privilege of seeing these documents i.e. the exhibits and to have based its decision on speculation, See Panalpina v. Wariboko (supra), Oparaji v. Ohanu (supra) and Abacha v. Fawehinmi (supra). This is so as here where the lower Court has made serious pronouncements affecting the rights of the parties without the help of material documentary evidence as per Exhibits ‘A’ to ‘I’. There can be no doubt that the decision has occasioned a miscarriage of justice. See Udeze v. Chibede (1990) 1 NWLR (Pt. 125) 141.” Per CHUKWUMA-ENEH, JSC
I think many things were wrong in the way the Appellants prosecuted their case at the lower Court and in the way they compiled the Records of Appeal in this case. I shall strike out this appeal in the circumstances, for incomplete records. The appeal is struck out.
Parties to bear their respective costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read before now in draft the leading judgment of my learned brother ITA MBABA, J.C.A.
I am in agreement with his reasoning and conclusion. I also strike out the appeal.
I abide by the order as to costs as contained in the leading judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have read before now in draft the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the reasoning and conclusion reached by him and adopt same as mine.
I abide by the consequential orders made therein.
Appearances:
B. Y. GAMBO, ESQ., with him, R. M. HUSSAINI, ESQ. For Appellant(s)
SHEHU ADAMU KAWU, ESQ. (who filed no brief) For Respondent(s)
