In The Court of Appeal

(Enugu Judicial Division)

On Tuesday, the 10th day of July, 2001

Suit No: CA/E/16/97

Before Their Lordships

 Between

 And

AKPABIO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Okadigbo, J. of the High Court of Enugu State, sitting at Enugu, in suit No. E/10A/80, delivered on 7/4/82, wherein he allowed an appeal which went to him from a decision of Chief Magistrate J.N.M. Onyechi of Chief Magistrate's Court, Enugu in suit No. ME/284/78.

It should be explained at this stage that the claim of the plaintiff was initially filed at the Enugu High Court. But after pleadings had been filed and exchanged the suit was transferred to the Chief Magistrate's Court, Enugu pursuant to section 46(1) of the High Court Law of Enugu State, by the Hon. Justice A.I. Iguh, J. (as he then was) on 18/9/78.

It should be explained at this stage that the claim of the plaintiff was initially filed at the Enugu High Court. But after pleadings had been filed and exchanged the suit was transferred to the Chief Magistrate Court, Enugu pursuant to section 46(1) of the High Court Law of Enugu State, by the Hon. Justice A.I. Iguh, J. (as he then was) on 18/9/78.

The claim of the plaintiff filed in the High Court, but transferred to the Chief Magistrate Court, for hearing and determination read as follows:-

"The plaintiff's claim against the defendant is for perpetual injunction, restraining the defendant, his agents or servants from entering into or on or upon a piece and parcel of land situate at Abakpa Nike within the jurisdiction of the court which is in exclusive possession of the plaintiff as the owner as shown on plan No. AN/GA437/76, and N580 special and general damages for trespass thereon made up as follows:-

"(a) N80,00 being value of 4 cement pillars wrongfully removed by the defendant and

(b) N500.00 being general damages."

At the end of the Magistrate's Court trial, the learned Chief Magistrate held that the plaintiff had not proved that he was lawfully in possession of the land in dispute. He therefore dismissed both the plaintiff's claim and the defendant's counter-claim which he said he did not see, with no order as to costs. 

The plaintiff being dissatisfied with that judgment appealed to the High Court of Anambra State of Nigeria, holden at Enugu, coram Okadigbo, J. The appeal was duly argued, at the end of which the learned appellate Judge, Okadigbo, 1. allowed the appeal with the following comments:-

"After a most careful consideration of the learned counsel for the appellant, I am satisfied that the appeal succeeds and it is accordingly allowed. The judgment of the learned Chief Magistrate in suit No. ME/54/78 and dated 22/10/79 is hereby set aside."

The appellant in his writ claimed as follows:-

(a) Perpetual injunction restraining the defendant, his agents or servants from entering into the piece of land as shown on plan No. AN/GA437/76; 

(b) N80.00 being value of 4 cement beacons wrongfully removed by the defendant, and

(c) N500.00 being general damages for trespass. 

Having allowed the appeal, I hereby make the following orders in favour of the plaintiff:-

"(a) I hereby grant a perpetual injunction restraining the defendant, his agents or servants from entering into the piece of land as shown in plan No. AN/GA437/76 attached to Exhibits A and B and referred to in Exhibit C;

(b) The defendant is to pay to the plaintiff the sum of N80.00 as special damages being the value of 4 cement beacons wrongfully removed by the defendant from the land in dispute;

(c) N200.00 general damages to be paid by the defendant to the plaintiff for trespass. Costs to the appellant assessed at N75.00."

The defendant was in turn dissatisfied with the above judgment, and so appealed further to this court - The Court of Appeal, Enugu Division on three grounds in appeal No. FCA/E/80/83. However, since the grounds of appeal were of mixed law and fact or on facts only, it became necessary to obtain leave from the High Court, before proceeding to the Court of Appeal. According to the appellant, the said leave was duly applied for on 25/6/82, within time, but leave was actually granted out of time on 28/10/82. However, without that irregularity being brought to the attention of the Court of Appeal, the court proceeded and heard the appeal and ultimately gave a unanimous decision allowing the appeal of the defendant/appellant, setting aside the decision of the High Court, and dismissing the claim of the plaintiff/respondent in its entirety. Aggrieved by the Court of Appeal decision, the plaintiff/respondent filed another appeal to the Supreme Court in appeal No. SC/155/91. 

However after the parties had filed and exchanged their briefs of arguments at the Supreme Court, and the appeal set down for hearing in that court, it came to light that the leave granted to the defendant by the High Court was obtained outside the prescribed period. The Supreme Court thereupon struck out the appellant's appeal and declared the Court of Appeal's judgment a nullity. Faced with the above situation, the defendant/appellant who will henceforth in this judgment be referred to simply as the appellant came back to this court, and by a motion dated 30th January, 1997, applied for extension of time within which to seek for leave to appeal against the judgment of Okadigbo, J, delivered on 7/4/82; leave to appeal, extension of time within which to file notice and grounds of appeal; and for stay of execution of the said judgment. It appears from our records that the said application -was duly granted. The appeal ultimately came back to us for a re-hearing before a different panel of justices, as set out above, on the 17th May, 2001. 

On the said day, 17/5/2001, only Chief L.M.E. Ezeofor appeared in court as counsel for the respondent. Appellant and his counsel were absent, but were said to have been present on the last date of adjournment which was 15/3/2001. It was also pointed out by Ezeofor that both briefs have been filed whereupon the appeal should be taken as argued under Order 6 rule 9(e) of our Court of Appeal Rules. The appeal was duly taken as argued and adjourned to 10/7/2001 for judgment.

However, when judgment was about to be written, it was discovered that there was no record of proceedings or appeal records that should have contained both the statement of claim and statement of defence filed by the parties at the trial court; as well as the original evidence of the parties and their witnesses given at the trial court. All we have in our file are the attested copies of the judgments at the Chief Magistrate's Court dated 22/10/79; judgment of Okadigbo, J. of Enugu High Court, dated 7/4/82; judgment of the Court of Appeal dated 9/6/88 and the Supreme Court ruling dated 13/12/96. All these had been attached as exhibits to support the application of the defendant/appellant/applicant dated 30/1/97 for extension of time, leave to appeal etc. within which to appeal de novo as it were. The said application was apparently granted, whereupon briefs of both parties including appellant's reply briefs were filed, and the appeal set down before us for hearing a second time. It is my respectful view that that was a wrong way of going about getting the appeal with the necessary leave that was not obtained initially. It is my respectful view that having obtained the necessary extension of time within which to appeal, and the appropriate leave, the parties should have gone back to the registry of the court below and filed their notice and grounds of appeal, and also paid for compilation of records, which appeared not to have been compiled either by the court's registry or by any of the parties with leave of the court. The result is that as of now there is no appeal records before this court. None of the survey plans, and the leases or sub-leases tendered at the Chief Magistrate Court as exhibits have been transmitted to this court. Of course, the pleadings in the case which were initially filed at the High Court before the case was later transferred to the Chief Magistrate Court have also not been sent to us. This court cannot hear an appeal based on judgments only. All the pertinent documents filed at the trial court, must also be transmitted to the Court of Appeal. It is our law that:

"an appeal should be fought on the basis that the record is correct. Where record of appeal does not correctly represent what took place at court below, steps must be taken to make it so".

(1) "Ehikioya v. C.O.P (1992) 4 NWLR (Pt.233) 57 at 74. 

(2) Ojeme v. Momodu (1994) 1 NWLR (Pt.323) 685 at 697."

Reference must also be made to Order 3 rule 9(1) of our Court of Appeal Rules, 1981, which sets out the important documents that must statutorily be contained in any "Record of Appeal." 

"9(1) The record of appeal shall contain the following documents in the order set out:-

(a) the index;

(b) a statement by the Registrar of the court below giving brief particulars of the case and including a schedule of the fees paid;

(c) copies of the documents settled by the Registrar of the court below for inclusion in the record of appeal in accordance with rule 8 of this Order; 

(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal." 

In view of the absence of all the documents mentioned above, which are statutorily necessary for any meaningful adjudication in an appeal court, I regret to say that this appeal has been prematurely brought before us. It is incompetent and therefore hereby struck out with costs of N3,000.00 (Three thousand naira) in favour of the respondent. 

OLAGUNJU, J.C.A.: I agree with the conclusion in the leading judgment copy of which was made available to me in advance that this appeal is incompetent. I also share the well articulated reasoning of my learned brother, Akpabio, JCA., that the appeal was presented in disregard of the Rules of this court on the material point. 

The chequered history of the case has been reviewed in detail by the leading judgment to depict the sorry picture of a relay of mistakes besetting the case in its tortuous appellate voyage to the apex court and back to this court on the second calling only to discover the fundamental lapse that this time around the appeal landed in this court with an incomplete record. Apart from the judgments of the various courts that handled the matter and the ruling of the Supreme Court declaring the earlier appeal as incompetent strewn over the record, namely, the pleadings before the trial High Court that remitted the case to the Chief Magistrate's Court for trial as well as the minutes of the proceedings at the trial court that are the source of the complaints before the court below. These are vital documents that mirror the complaints about the review of the case by the court below that is being questioned in this appeal which this court is being called upon to examine.

Against this background, my learned brother, Akpabio, J.C.A., is correct that the appeal was presented in disregard of sub-rule 9(1) of Order 3 of the Court of Appeal Rules, 1981, which enumerated what the record of appeal should contain and that it is wrong to have foisted on this court for deliberation a truncated record. Therefore, the conclusion is justified that as the vital documents which are the bedrock of the dispute are not before this court there are no materials with which the deliberations on the controversy can be steered. Consequently, the appeal is incompetent as sheer invitation to this court to embark on a voyage of discovery which is not a judicial function.

It is for the foregoing reasons and for the fuller reasons given in the leading judgment that I also declare the appeal to be incompetent and I strike it out. I adopt the order of costs made in the leading judgment.

Appeal is struck out.

M. D. MUHAMMAD, J.C.A.: I agree. 

Appeal struck out.

     Appearances