(2018) LPELR-45114(CA)

Transcription

1 ASHIMIYU v. BOLAJI & ORS CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos MOHAMMED LAWAL GARBA JOSEPH SHAGBAOR IKYEGH YARGATA BYENCHIT NIMPAR ON FRIDAY, 8TH JUNE, 2018 Suit No: CA/L/226/2015(R) Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal HON. ADEKOLA ASHIMIYU - Applicant(s) 1. ALHAJI OLARENWAJU BOLAJI 2. WOYITU ALAYANDE 3. HANNAH BAKARE ALAYANDE 4. ALHAJA KUDIRAT SHONIRE And RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - RECORD OF APPEAL: Whether the appellate Court can entertain an objection to the correctness of a record of appeal not placed before it "I was given the privilege of reading in draft the judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA and I agree with the conclusion arrived at in the leading judgment. It is only reasonable to consider any objection to the correctness of the record only when the record is before the Court. The Court cannot take into account extraneous issues in the determination of any application. For the fuller and more detailed reasoning in the main ruling, I too grant the application." Per NIMPAR, J.C.A. (Pp , Paras. F- C) - read in context

3 2. APPEAL - RECORD OF APPEAL: Whether the appellate Court can entertain an objection to the correctness of a record of appeal not placed before it "The crux of the application is that the applicant omitted the statement of claim in the record of appeal and additional record of appeal already compiled and transmitted and are now the record of the Court, therefore he brought the present application to compile and transmit further additional record of appeal out of time and the main objection is that the further additional record of appeal contains incorrect/inaccurate materials thus challenging the correctness of the further additional record of appeal. In my respectful opinion, it is premature to challenge the correctness of the further additional record of appeal which is yet to be accepted as part of the record of appeal in this case. The challenge could be made after the further additional record of appeal is made part of the record of the appeal in the case, in which case, the Court will be seised of the further additional record of appeal and be in appropriate position to determine the complaint on incorrectness of the further additional record of appeal. The affidavit evidence (supra) sufficiently explained the delay in compiling and transmitting the further additional record of appeal; consequently, I see merit in the application and hereby grant it. The further additional record of appeal compiled and transmitted on is deemed as properly compiled and transmitted today." Per IKYEGH, J.C.A. (Pp , Paras. D-D) - read in context

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5 JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling): The motion on notice prays thus - a. AN ORDER extending time within which the Appellant/Applicant shall compile and transmit Further Additional Record of Appeal in this case. b. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to compile and transmit Further Additional Record of Appeal. c. AN ORDER extending time within which the Appellant/Applicant shall file and serve the Respondents Further Additional Record of Appeal. d. AN ORDER deeming the Appellant/Applicant's already compiled and transmitted Further Additional Record of Appeal and service of same on the Respondents as good and proper in the circumstances. e. AND For Such further Order(s) or other Order(s) as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the application is brought are stated thus 1. The Record of Appeal in this matter was compiled within time by the Registrar. 2. The Registrar missed out some of the applicant's application and some were not properly arranged in 1

6 the Record of Appeal, as a result additional record was needed to correct the anomaly. 3. The Applicant further discovered that the signed statement of Claim dated 2th day of June 2012 was not included in the earlier compiled Record of Appeal hence the need for Further Additional record of appeal. 4. Time for compilation and transmission of the Record of Appeal has elapsed. The application is thus necessitated by including the omitted statement of claim as part of the record of appeal as further additional record of appeal. The application is supported with an affidavit of 14 paragraphs deposed to by one Chidozie Oba John thus I, Chidozie Oba John, Male, Adult, Christian, Nigerian of Loken Law Office, Western House, 12th Floor, Wing B, 8/10 Broad Street, Lagos do make oath and state as follows: 1. That I am a legal practitioner in the above mentioned law office representing the Appellant. 2. That I have the consent of my employers and the Appellant to depose to this affidavit. 3. That save as expressly stated all averments herein are facts within my personal knowledge. 2

7 4. That Record of Appeal dated 24th March 2015 on this matter was compiled and transmitted on time by the Registrar and served on us. 5. That on study of the Record of Appeal served on us, we found out that; a. One of the applications the subject matter of this appeal was completely left out, missed or omitted. b. The second application was muddled up and improperly arranged. 6. That we realised that it is necessary to compile Additional Record of Appeal for the proper disposal of this appeal. 7. That on further study of the additional notice of appeal in the course of the proceeding the Appellant/Applicant noticed that one of the Statement of Claim filed and used in the lower Court was not included. 8. That the anomaly was immediately reported to the Registrar of the Court below. 9. That it took quite some time before the file could be transferred back to the Court below from the Court of Appeal. 10. That as a result, Further Additional Record of Appeal dated 13th January, 2017 was compiled and transmitted by the Registrar to this Honourable Court. 11. That I know that the time allowed by the rules to 3

8 compile and transmit Further Additional Record of Appeal has elapsed. 12. That it will be in the interest of justice to grant this application. 13. That the grant of this application will not prejudice the case of the Respondents. 14. That I make this affidavit in good faith believing its contents to be true and in accordance with the Oath Act. The 1st respondent s counter affidavit deposed thus I, Olajide I. SANNI, Esq, Male, Christian, Nigerian citizen of 10, Boyle Street,Onikan, Lagos hereby make oath and states as follows: 1. That I am a Legal Practitioner in the law firm of Ayinde Sanni & Co, Solicitors to the respondent in this suit and by virtue of my position I am conversant with the facts deposed herein 2. That I have the authorization of the 1st respondent and my employers to depose to this affidavit. 3. That I have read the Affidavit in support of the Application dated 18th January, 2017 and all the facts contained therein is false. 4. That everything contained in the records sought to be regularized is not addition but a replacement and 4

9 reproduction of the particulars contained in the existing record before the Court. 5. That the Statement of Claim is already contained in Pages of the Original Records of Appeal compiled by the Principal Registrar of the High Court of Lagos State. 6. That the ruling is contained in Pages of the Records of Appeal originally compiled by the Principal Registrar. 7. That the Additional Records of Appeal was singlehandedly compiled by the Appellant's Counsel without the input of any official of the High Court or other counsel on record. 8. That there has been an alteration of the existing records before the Court in the Additional Records sought to be regularized. 9. That we have launched an investigation at the office of Chief Registrar of the High Court of Lagos regarding the alteration of the Records of Court. 10. That I depose to this affidavit in good faith and in accordance with the Oaths Act. The 2nd 4th respondents counter affidavit deposed thus I POPOOLA ABDUL MAJEED, Male, Muslim, Litigation Clerk, Nigerian Citizen of No. 120, Lewis Street, Lagos 5

10 Island, Lagos do hereby make oath and state as follows: 1) That I am the above deponent and also a litigation officer in the Law Firm of M.A.T.& PARTNERS, counsel representing 2nd - 4th Respondents in this Appeal. 2) That by virtue of my duties there at I am familiar with the facts of this case. 3) That I have the consent of the 2nd - 4th Respondents herein as well as authority of my principal to depose to this Counter Affidavit. 4) That I was informed by Muyideen A.Tejumade of Counsel in our Chambers during the briefing on the 15th February, 2017 at around 10:00 am and reasonably believe him as follows: a. That the Appellant/Applicant herein upon filing the Notice of Appeal dated 23rd February, 2015; compiled and transmitted Record of Appeal and the said Record of Appeal numbered pages was served on the 2nd - 4th Respondents' Counsel. b. That the Appellant/Applicant via a Motion on Notice dated 23rd July, 2015 sought for leave to compile and Transmit Additional Record of Appeal and the 2nd - 4th Respondents herein filed Notice of Intention not to contest the Appellant's Application 6

11 for extension of time to compile Additional Record of Appeal, hence same was granted by this Honourable Court. c. That the Additional Record of Appeal numbered pages was served on the 2nd - 4th Respondents' Counsel. d. That by the two Records of Appeal, that is the Record of Appeal and the Additional Record of Appeal, the Appellant/Applicant has compiled and transmitted all the processes and proceedings of the High Court, to this Honourable Court. e. That upon the 2nd - 4th Respondents' Application and the Brief of Argument both dated 28th November, 2016 seeking to challenge the jurisdiction of this Honourable Court to hear this Appeal on the grounds of the incompetency of the Originating Court Processes used to initiate this matter at the Lower Court, the Appellant/Applicant is now aware of the fundamental defects in the Originating Processes filed at the High Court, hence the Application dated 18th January, 2017 f. That the Appellant/Applicant filed this Application to seek the leave of Court to bring in Additional Brief of Argument filed on the 13th January, 2017, which has been served on the 2nd - 4th Respondents' Counsel. 7

12 g. That Contrary to the averment contained in Paragraph 7 of the Affidavit of Chidozie Oba John attached to the Motion dated 18th January, 2017 the Appellant filed only one Statement of Claim at the Trial Court. h. That the said Statement of Claim dated 20th of June, 2012 is contained at page 46 of the Record of Appeal already before this Honourable Court. i. That the said Statement of Claim filed at the High Court was not signed at all. j. That the Additional Record of Appeal filed on the 13th January, 2017 which the Appellant/Applicant is now seeking the Leave of Court to bring in, contained a FORGED STATEMENT OF CLAIM. k. That I know as a fact that the Statement of Claim contained in the new Additional Record of Appeal (filed on the 13th January, 2017) contained several discrepancies, to wit: i. The Lower Court Receipt number written on the Statement of Claim contained in the new Additional Record of Appeal (filed at the Registry of this Court on the 13th January, 2017) is different from the Receipt number of the Lower Court written on the Statement of Claim contained in the Record of Appeal. Please 8

13 see page 40 of the new Additional Record of Appeal and page 46 of the Record of Appeal filed on the 24th March, ii. Whereas the receipt number on the Statement of Claim contained at page 46 of the Record of Appeal (filed 23th March, 2015) is " " while the receipt number contained in the Statement of claim at page 40 of the new Additional Record of Appeal (filed on the 13th January, 2017) is " " iii. The High Court receipt number " written on the Statement of Claim contained at page 46 of the Record of Appeal (filed at the Registry of this Court on the 24th of March, 2015) corresponds with the High Court receipt number, contained on the Writ of Summons (see page 44 of the Record of Appeal filed on the 24th March, 2015); List of Witnesses (page 48 of the Record of Appeal filed on the 24th March, 2015); Statement on Oath of the Appellant (page 51 of the Record of Appeal filed on the 24th March, 2015); statement on Oath Wahab Titilayo Adeniji (page 52 of the Record of Appeal filed on the 24th March, 2015); List of Documents (page 53 of the Record of Appeal filed on the 24th March, 2015). iv. That the above explanation clearly show 9

14 the regularity of the Receipt number " " on the Frontloaded originating Processes in the Record of Appeal filed on 24th March, 2015 as against receipt number " " quoted on the Statement of Claim contained at page 40 of the Additional Record of Appeal filed on the 13th January, v. That from all the transmitted Records before this Honourable Court, there is no evidence of the existence of High Court Receipt " " vi. The Receipt Number " " being the sole receipt issued to the Appellant at the High Court Registry for the filing of Writ of Summons, Statement of Claim, Statements of oaths, List of Witnesses, List of Documents is contained at page 66 of the Record of Appeal filed on the 24th March, vii. The numeral figure "7" written by the High Court Registrar on receipt number and dates on all the Frontloaded Originating Processes in the Record of Appeal are not crossed (i.e 7) but merely written "7" please see Pages 45, 46, 48, 51,52, and 53 of the Record of Appeal filed on the 24th March, 2015) thus contrary to numerical figure "7" as written in the receipt number and dates on the Statement of 10

15 Claim in the Additional Record of Appeal filed on the 13th January, 2017, now seeking the Leave of the Court to bring in. viii. The Statement of Claim dated 27th June, 2012 and other Frontloaded Documents at pages 46,48,51,52, and 53 of the Record of Appeal filed on the 24th March, 2015 carries assessment of fees paid at the Lower Court whereas the Statement of Claim dated 27th June, 2012 contained at page 40 of the Additional Record of Appeal filed on the 13th January, 2017, now seeking the Leave of the Court to be brought in, does not carry Lower Court Assessment of fees paid in respect thereof. Now attached herewith with and marked Exhibit M.A.T 1 is the photocopy of the Certified True Copy of pages of the Record of Appeal filed at the Registry of this Honourable Court on the 13th January, ix. That the Additional Record of Appeal dated 13th January, 2017 which the Appellant/Applicant is seeking to bring in is clearly an afterthought and a clear attempt to invite this Court to sit on a forged document. 5) That contrary to the averment of the Applicant in paragraphs 8 10 of the Affidavit attached to the 11

16 Motion on Notice dated 18th January, 2017, there was no anomaly in the compilation and transmission of Record of Appeal dated 24th March, 2015 and the Additional Record of Appeal deemed properly compiled and transmitted pursuant to the Application dated 23rd July, 2015, that would have warranted the compilation and transmission of Additional Record of Appeal. 6) That the Record of Appeal dated 24th March, 2015 and the Additional Record of Appeal deemed properly compiled and transmitted pursuant to the Application dated 23rd July, 2015 represent the true processes and proceedings of the High Court. 7) That the Appellant/Applicant Application dated 18th January, 2017 and the Reliefs thereon be dismissed with punitive cost as same is an attempt to make this Honourable Court sit on a forged document. 8) That granting the Application dated 18th January, 2017 will do harm to the judicial system, as the Reliefs sought in the Application are capable of polluting the stream of justice, which will be dangerous for us all to drink from. 9) That I deposed to the Counter Affidavit in good faith consciously believing the facts stated herein to 12

17 be true, correct and in accordance with the Oaths Act of Nigeria. While the reply affidavit to the 1st respondent s counter affidavit stated- I, Mr. Bayo Asimiyu Adekola, Muslim, Business man, Nigerian Citizen of No. 45 Egbatedo Street, Agege, Lagos State do make oath and state as follows: 1. That I am the Appellant on the above named suit by virtue of which I am conversant with the fact of this case. 2. That save as expressly stated all averments herein are facts within my personal knowledge. 3. That I have read the 1st Respondent's Counter Affidavit to the motion dated 18th January, That paragraphs 4, 7 and 8 of the said counter affidavit are false. 5. That the true positions are as follows; a. That when I realised that the signed statement of claim was omitted in the previous Records of Appeal, I applied to search the Court's records. b. That my finding was that a duly signed statement of claim was in the Court file but omitted during compilation. c. That I applied for its certification and it was d. That the compilation of the record sought to 13

18 be brought was done under the supervision of the officers of the High Court. e. That the compilation was cross checked and approved by officers of the Court. f. That there was no alteration of the existing record as alleged or at all. g. That we are not aware of the investigation lodged by the 1st Respondent. 6. That I depose to this affidavit in good faith and in accordance with the Oath Act. The reply affidavit to the 2nd 4th respondents counter affidavit also stated - I, Mr. Bayo Asimiyu Adekola, Muslim, Business man, Nigerian Citizen of No. 45 Egbatedo Street, Agege, Lagos State do make oath and state as follows: 1. That the Appellant in the above named suit by virtue of which I am conversant with the fact of this case. 2. That save as expressly stated all averments herein are facts within my personal knowledge. 3. That I have read the counter affidavit of Popoola Abdul Majeed deposed on 2nd March 4. That paragraphs 4 (i)(j)(k), 6, 7 and 8 are false. 5. That there is a signed and unsigned Statement of Claim in the Court's file. 14

19 6. That there was mix up in the Court records. 7. That the Statement of Claim sought to be brought in is not forged but dully filed. 8. That the statement of claim sought to be brought in was certified by the lower Court as part of their record. 9. That the Record of Appeal sought to be regularised was transmitted by the lower Court after cross checking same. 10. That the receipt numbers on two statements of Claim are the same. 11. It was the way the later Statement of Claim was stamped that affected the deponent's vision and interpretation of same. 12. That the receipt number on the statement of claim is and not as alleged or stated. 13. That there is no major discrepancy or difference in the way 7 is written as alleged. 14. That the difference is a figment of the imagination of the deponent. 15. That the Appellant has the right to correct any omission spotted in the Record of Appeal. 16. That it will be in the interest of justice to grant this application. 17. That the grant of this application will not 15

20 prejudice the respondents 18. That I depose to this affidavit in good faith and in accordance with the Oath Act. The applicant argued that the application for extension of time is discretionary and upon the materials contained in the affidavit in support of the application the applicant is entitled to the indulgence sought and that the objection to the application being channelled to the correctness or accuracy of the further additional record is premature and should be raised only when the further additional record is let in as part of the record of the Court, therefore the application should be granted vide University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143, Udo v. Okpo (1996) 8 NWLR (pt. 469) 705, Order 6 Rule 9 and Order 8 Rules 6 and 9 of the Court of Appeal Rules 2016 (Rules of the Court), Bowaje v. Adediwura (1976) 6 S.C. 143 at 147, Elobisi v. Onyeonwu (1989) 5 NWLR (pt. 120) 224 at 237, Adisa v. Teno Eng. Ltd. (2001) 1 NWLR (pt. 695) 633 at 653, Ehikioya v. C.O.P. (1992) 4 NWLR (pt. 233) 57, U.B.A. v. Ujor (2001) 23 W.R.N. 158 at 169. The 1st respondent contended in the written address filed 16

21 on that the application is intended to cure an incurable defect because the record sought to be regularised is not an addition but a replacement of the parts of the original record for the purpose of avoiding the impact of the objection to the main appeal that the originating process was signed by a law firm contrary to Sections 2(1) and 24 of the Legal Practitioners Act Cap L11 Laws of the Federation 2004 read with Order 6 Rule 2 (3) of the High Court of Lagos State (Civil Procedure) Rules 2012 (rules of the Court below) and the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, F.B.N. Plc. v. Maiwada (2013) 5 NWLR (pt.1348) 444 at 499, Okarika v. Samuel (2013) 7 NWLR (pt. 1352) 19 at 38, Min. Works and Transport, Adamawa State v. Yakubu (2013) 6 NWLR (pt. 1351) 481 at 496, therefore the application should be dismissed. The 2nd 4th respondents contended in the written address filed on that the appellant had compiled and transmitted record of appeal and additional record of appeal contains the necessary materials for the appeal so the application is unnecessary as the record of appeal is complete and that the application would have been 17

22 necessary if the record of appeal is incomplete that the further additional record of appeal is not correct and should not be accepted and that the application is an abuse of the process of the Court and should be dismissed vide Akpoku v. Ilombu (1998) 8 NWLR (pt. 561) 283 at 291, Oyegun v. Nzeribe (2010) 7 NWLR (pt. 1194) 577 at 593, Adegbuyi v. A. P.C. (2015) 2 NWLR (pt. 1442) 11, F.B.N. Plc v. T.S.A. Ind. Ltd. (2015) 11 NWLR (pt. 1470) 346 at 353, Yar Adua and Ors. v. Yandoma and Ors. (2014) 12 S.C. (pt. 111) 64 at 125, Okwuego v. Okemili (2013) LPELR 22024, Unity Bank Plc v. Olatunji (2013) LPELR 20305, Okorocha v. P.D.P. and Ors. (2014) LPELR The crux of the application is that the applicant omitted the statement of claim in the record of appeal and additional record of appeal already compiled and transmitted and are now the record of the Court, therefore he brought the present application to compile and transmit further additional record of appeal out of time and the main objection is that the further additional record of appeal contains incorrect/inaccurate materials thus challenging the correctness of the further additional record of appeal. 18

23 In my respectful opinion, it is premature to challenge the correctness of the further additional record of appeal which is yet to be accepted as part of the record of appeal in this case. The challenge could be made after the further additional record of appeal is made part of the record of the appeal in the case, in which case, the Court will be seised of the further additional record of appeal and be in appropriate position to determine the complaint on incorrectness of the further additional record of appeal. The affidavit evidence (supra) sufficiently explained the delay in compiling and transmitting the further additional record of appeal; consequently, I see merit in the application and hereby grant it. The further additional record of appeal compiled and transmitted on is deemed as properly compiled and transmitted today. The applicant shall pay N50, 000 costs to the 1st respondent and another N50,000 costs to the 2nd 4th respondents. MOHAMMED LAWAL GARBA, J.C.A.: I agree YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the 19

24 privilege of reading in draft the judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA and I agree with the conclusion arrived at in the leading judgment. It is only reasonable to consider any objection to the correctness of the record only when the record is before the Court. The Court cannot take into account extraneous issues in the determination of any application. For the fuller and more detailed reasoning in the main ruling, I too grant the application. 20

25 Appearances: Mr. N. Chinwuba (with Mr. C. Nebeolisah) For Appellant(s) Mr. O. I. Sanusi for the 1st Respondent. Mr. A. T. Muyideen (with Mr. A. Pokanu) for the 2nd 4th Respondents) For Respondent(s)