In The Court of Appeal

(Lagos Judicial Division)

On Wednesday, the 11th day of July, 2012

Suit No: CA/L/262/99

 

Before Their Lordships

 

  

HELEN MORONKEJI OGUNWUMIJU

....... Justice, Court of Appeal

RITA NOSAKHARE PEMU

....... Justice, Court of Appeal

MUHAMMED AMBI-USI DANJUMA

....... Justice, Court of Appeal

 

 

 

 Between

CHIEF AJIBOWU A. OWOADE

Appellants

 

 

 

 And

    

FEDERAL REPUBLIC OF NIGERIA

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "A FINAL ORDER": Definition of "a final order"

 

 

"What is a final order? A final order has been defined as an order that settles the dispute or contention between the parties as relating to the claim in issue. See NIREKO INTERPRISES LTD VS. FIRST BANK." Per DANJUMA, J.C.A. (P. 61, paras. A-B)

 

 

 

 

2

APPEAL - APPEAL BASED ON INCOMPLETE RECORD: Whether an appeal can be heard on incomplete record; duty of Court where the judgment of a Court is said to be lost and the record of proceedings or part thereof are missing

 

 

"It is clear from the Exhibits attached to the affidavit in support of this application particularly Exhibit AA7 already set out above that through the negligence or deliberate fault, the Registry of the Lagos Division of this Court has lost the Exhibits transmitted to it as per Exhibit AA10 on 4th October, 2002. I agree with learned Appellant's counsel that the issue cannot be left in limbo with the hope that the Exhibits already declared lost without a trace by Exhibit AA7 will eventually be found. I resolve the first and second question in the affirmative. The next question is whether there has been a violation of the rights of the Appellant/Applicant by the loss of the Exhibits. In Abiodun v. A.G Federation supra at Pg. 406-409, the court of Appeal interpreted Section 36(1) and (7) of the 1999 Constitution and held that a court or Tribunal trying an accused person for a criminal offence must of necessity maintain a record of the proceedings of the trial. And at the close of the trial, such an accused person who requests for it, is entitled to be given a copy of the judgment of that court/tribunal within seven days. Section 240 of the 1999 Constitution provides as follows: - 240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly. Order 17, Rule 7 & 9 of the Court of Appeal Rules provides as follows:- 7. (1) When- (a)the registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of the time within which such notice shall be given; or (b)the court below has granted leave to appeal, the registrar of the court below shall prepare the Record of Appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizances entered into or any other documents filed in connection with the appeal or application. (2)Subject to the provisions of Rule 9 of this Order, the registrar of the court below shall forward to the Appellant and to the Director of Public Prosecutions of the State from which the appeal emanated a copy of the record. Provided that if the Appellant is not in custody a copy of the record shall only be supplied to him on request. (3)The Court may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it may impose. 9.-(1)The Record of Appeal in appeals or applications relating to appeals from the court below acting in its original jurisdiction in criminal cases shall contain legible typed, stenciled and cyclostyled, or printed, copies of the following items arranged in this order - (a) the index; (b) the charge or information; (c) the Judge's notes of the evidence and minutes of the proceedings provided that if a shorthand note of the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or in substitution of the Judge's notes, as he may direct; (d) the judgment or any additional ground or explanation thereof; (e) the proceedings on or after sentence in so far as not included in the notes of hearing or minutes of proceedings; (f) all documentary exhibits put in at the trial including depositions read in consequence of the absence of a witness: Provided that in cases of books of accounts or other documents of great length, extracts of the relevant portions thereof only shall be included; (g) the notice of appeal or notice of application for leave to forwarding of proceedings of court below to the Registrar appeal, or notice of application for extension of time in which such notice shall be given. (2) It shall not be necessary for the Record of Appeal to contain copies of any recognizances entered into or documents filed in connection with the appeal or application other than those set out in sub-rule (1) of this Rule unless the court or a Judge of the court below shall otherwise direct." I am convinced that in the circumstances of this case, Order 17 Rule 7 (1) (b) and 9 (1) (f) cannot be obeyed by the Registry of this court. Thus, the Applicant has been deprived of the right to bring all his case on appeal before the court of appeal. Since his major complaint is that the documentary exhibits were not properly evaluated by the trial court, his inability to do this would do untold damage to his case on appeal. It is the duty of the court of appeal not to hear an appeal on incomplete records. In the peculiar circumstances of this case, the exhibits were the basis of the case made out against the Applicant. One of the grounds of appeal is that the judgment of the Tribunal was given against the weight of evidence-which consisted of the missing exhibits. Counsel cited Ekpemupolo Vs. Edremoda (2009) 8 NWLR Pt. 1142 Pg. 167 wherein Chief Okochi Vs. Chief Animkwoi was cited with approval to buttress the argument that the court is entitled to look at the records of proceedings binding on the parties and the court. In situations where the judgment of a court is said to be lost and the record of proceedings or part thereof are missing, the court have always leaned towards setting aside the lost/missing judgment and depending on the circumstances of the case, ordered a retrial unless such order of retrial would be oppressive. In Bello Vs. A. G. Oyo (1986) 5 NWLR Pt. 45 Pg. 828, the Supreme Court held inter alia that whenever the court finds that a Plaintiff has been wronged by a Defendant especially where the Defendant has breached the duty he owes to the Plaintiff consequentially causing a legal injury to the Plaintiff, it is the duty of the court to provide a remedy for the Plaintiff even if none had hitherto been prescribed in the statute books for where there is a wrong, there must be a remedy. In Okochi Vs. Animkwoi (2003) 18 NWLR Pt. 851 Pg. 1 at Pg. 23-24. Tobi JSC who read the leading judgment was of the view and on this there was no dissent by the other Justices on the panel that where all diligent efforts to procure the missing part of a record fails, the court should take the most painful decision of ordering a retrial in the case if the missing portion of the record is material to the appeal. Even though an order of retrial will prolong the litigation, an appellate court has no choice in the matter. It would be unjust to hear an appeal on incomplete record. In Ogidi Vs. The State (2005) 5 NWLR Pt. 918 Pg. 286, where the Supreme Court held that the provisions of S. 36 (7) of the 1999 Constitution required a court trying any criminal offence to keep a record of proceedings. It is therefore absolutely important for courts involved in the trial of such offences to scrupulously keep the records of proceedings in accordance with the demands of the Constitution. Failure to do may vitiate the trial as a nullity. In Akinmolarin Vs. Yeyebinu Western State Court of Appeal (1975) NWLR 45 held that as the judgment appealed against is not before the Appeal court, the Appeal court is unable to know how the final conclusion was reached by the learned trial judge, and an order of retrial before another judge would be made. In Engineering Enterprises Nig. Ltd. Vs. A. G. Kaduna (1987) 2 NWLR Pt. 57 Pg. 381, the Supreme Court Oputa JSC held as follows: "The courts have duty to investigate and discover what in any particular case will satisfy the interest and demands of justice and the interest and demands of justice will certainly be dictated by the peculiar facts and the surrounding circumstances of each case." The court ordered a retrial. Every wrong not the fault of a party must not be visited on that innocent party and where agents of the state are at fault, the innocent victim must be atoned. In Haastrup W. A. Ltd. Vs. Welding Eng. Co., the Applicants had applied to the Court of Appeal seeking an order of retrial by the trial High Court on the ground that the lower court's record is missing. The Court of Appeal granted the application and ordered a retrial. The court of appeal held unanimously that once an Appellant to the Court of Appeal has deposited money at the lower court for the making us and forwarding of the record of appeal to the Court of Appeal, he has discharged his duty. He is not under any obligation to do anything more. If the records have not been transmitted or are missing, it is the Registrar of the Court that has failed to do his duty. Katsina-Alu JCA (As he then was) stated categorically at Pg. 99 of the NWLR as follows: "I have no doubt whatsoever that the only order that may be consistent with the Appellant's constitutional right of appeal as provided by S. 220 of the 1979 Constitution is to give him another opportunity to start all over so that his right of appeal, which he was deprived of may be restored if the result of the retrial so warrants." Per OGUNWUMIJU, J.C.A. (Pp. 36-42, paras. A-D)

 

 

 

 

3

CONSTITUTIONAL LAW - CONSTITUTIONAL RGHT OF A CONVICT: Constitutional right of a convict to appeal

 

 

"It is the constitutional right of a convict to appeal as by law provided. It is also his constitutional right to be afforded all the opportunities and facilities for the presentation of his case or defence as the case may be since an Appeal is a continuation of the trial, see IWE VS. SCOA NIG. LTD & 2530 2000 FWLR, OREDOYIN VS. AROWOLA (1989) 4 NWLR (Pt.114) 172 at 211, BLACKS LAW DICTIONARY 6TH EDITION page 96." Per DANJUMA, J.C.A. (P. 66, paras. A-B)

 

 

 

 

4

COURT - DUTY OF COURT: Duty of Court to do justice

 

 

"The judex shall do justice even when no law specifically provides for it and so long as an act is not specifically prohibited, it is the duty and within the powers and duties of the courts i.e judicature to do justice." Per DANJUMA, J.C.A. (P. 71, paras. D-E)

 

 

 

 

5

JUDGMENT AND ORDER - FINAL JUDGMENT/ORDER: When a judgment or order would be final

 

 

"....At page 437 of the report it is recorded thus:- Held unanimously dismissing the application): 1. On problem of classifying decisions of courts as final or interlocutory---. 4. On when a court decision is final:- No order in an action will be final unless upon the application out of which it arises given in favour of the other party to the action would have determined the matter in dispute. In other words, a judgment or order would be final when, whichever way it went, it would finally determine the right of the parties in respect of the application. The current application, is on the basis of the aforesaid authority, one capable of determining with finality the claims of the parties in the said application" Per DANJUMA, J.C.A. (Pp. 62-63, paras. E-A)

 

 

 

 

6

COURT - JURISDICTION OF COURT OF APPEAL: Whether the Court of Appeal has jurisdiction to entertain an appeal from a decision of the Failed Banks Tribunal

 

 

"I have looked thoroughly at the case of Arewa Paper Converters Ltd. Vs. NDIC supra. I cannot agree that the effect of the lead judgment of Mohammed JSC in that case is the general and sweeping proposition that the Court of Appeal has no jurisdiction over appeals from the failed Banks Tribunal. In that case the Supreme Court was obliged to interprete Decree 62 of 1999. In determining the appeal, the Supreme Court considered the provisions of section 5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree No. 18 of 1994 and sections 2 and 3 of the Tribunals (Certain Consequential Amendments, etc) Decree 62 of 1999. The relevant portions are set out below: Section 5 (1), Decree No. 18 of 1994:- 5 (1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunals) Decree 1984, as amended, in accordance with the provisions of that Decree. (2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the tribunal shall be final." Sections 2 and 3 of Decree No. 62 of 1999: 2 (1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under the enactments specified in the schedule to this Decree. (2) Accordingly, a tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved. (3) A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the Schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this subsection without further assurance than this Decree. (4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved. (5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of this Decree. (6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the judgment may be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be: Provided that the judgment shall have been written. (3) (1) whether any part heard matter is pending before any Tribunal on the date of making this Decree, the Judge: (a) may, if the parties to the proceedings agree in a civil cause, adopt the proceedings of the Tribunal concerned. (b) shall, in a criminal case, try the matter de novo pursuant to this Decree. (2) All new proceedings shall be brought before the court in accordance with the rules of procedure of the court concerned." It is trite that a case is authority for the facts and law it decides upon. In APC Ltd. Vs. NDIC, the Appellant had been charged before the Failed Banks Tribunal, Kano Zone and judgment entered against it under the undefended list procedure on 24/4/98. There was no appeal against the judgment by the Appellant up till 28/5/99 when the Tribunals (Certain Consequential Amendments) Decree No. 62 of 1999, dissolving the tribunals and transferring all pending part heard matters to the Federal High Court for hearing and determination came into force. On 22/10/99 the Appellant filed an application at the Federal High Court Kaduna to have the judgment set aside because it was not served the writ of summons before the default judgment against it by the Tribunal was given. The High Court refused the application and the Court of Appeal upheld the Respondent's Preliminary Objection to the effect that the Court of Appeal had no jurisdiction to entertain an appeal from a decision of the Tribunal. The Supreme Court also held the same view. The Supreme Court interpreted the provisions of S.5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks Decree No. 18 of 1994 and S. 2 & 3 of the Tribunals (Certain Consequential Amendments etc.)) Decree No. 62 of 1999. My own understanding of the lead judgment of Mohammed JSC is that the High Court had no jurisdiction to set aside the judgment of the Failed Banks Tribunal and afortiori the Court of Appeal cannot have any jurisdiction to hear an appeal in such an event. We must remember that in the case of APC Vs. NDIC the Appellant did not appeal against his conviction against the decision of the Tribunal within 21 days to the Appeal Tribunal which was functioning in 1998 when it was convicted. By S. 5 (1) of Decree 18 of 1994 under which it was convicted it had only 21 days to appeal to the special Appeal Tribunal established for that purpose. Mohammed JSC on Pg. 432 paragraph H, Pg. 433 paragraph D-E; Pg. 435 paragraph E went to great pains to make the point that the relief sought by the Applicant before the Federal High Court could not be heard because the Appellant wanted a judgment delivered on 24/4/98 by the Failed Banks Tribunal set aside when at the time the judgment was delivered the Federal High Court had not been invested with jurisdiction in suits connected with Failed Banks. The Federal High Court was conferred with jurisdiction with effect from 28/5/99. The point made by His Lordship severally is that as at the time the Appellant was convicted and did not appeal, only the Special Appeal Tribunal could have heard his appeal. By 28/5/99 when the Failed Banks Tribunal and Special Appeal Tribunal were dissolved, his right of appeal had lapsed having not been exercised by him. The point was also made clearly by His Lordship that the only rights kept alive and transferred to the Federal High Court and afortiori to the Court of Appeal were in respect of cases pending before the Tribunal which shall be deemed to have been filed before the Federal High Court. Also, any order or judgment before the commencement of Decree 62 shall be preserved etc. His Lordship held that the jurisdiction of the Federal High Court is confined to part heard matters left behind by the defunct Failed Banks Tribunal at various stages of proceedings before the Tribunals became defunct. A completed case and judgment cannot thus fall within the category of a part heard matter to imbue the Federal High Court with jurisdiction. In the ordinary course of events you go to the same court or court of coordinate jurisdiction to set aside what you perceive to be a null judgment. What the Supreme Court says in that case was that the case of the Appellant could not be accommodated under S. 3 (2) of the Decree No. 62 of 1999 as a new proceeding or a part heard proceedings. See Pg. 436 paragraph E-F. It might have been different if the Appellant in that case had appealed within time to the special Appeal Tribunal or gone back to the Failed Banks to set aside the judgment. It is relevant to set out the portion of his Lordship's judgment on page 439 of the NWLR thus: "This is because the case of the Appellant was governed by the provisions of the Failed Banks Decree 1994 before its amendment in 1999 and therefore the rights and obligation of the parties in this appeal in respect of the case must be determined in accordance with the law prevailing before the amendment. See A-G. Lagos State Vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Alao Vs. Akano (1988) 1 NWLR (Pt. 71) 431; Uwaifo Vs. A.-G. Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih Vs. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 201; Rossek Vs. A. C. B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 474 and the recent decision of Adah Vs. N. Y. S. C. (2004) 13 NWLR (Pt. 891) 639 at 648, where Uwaifo, JSC observed: "It ought to be understood that the law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard." Thus, in the case at hand, upon the state of the law conferring jurisdiction on the Federal High Court as at 222-10-99 in respect of matters arising from the Failed Banks Decree No. 18 of 1994 as amended, the Federal High Court was deprived of the jurisdiction to entertain and determine the Appellant's application." Per OGUNWUMIJU, J.C.A. (Pp. 42-48, paras. G-G)

 

 

 

 

7

JUDGMENT AND ORDER - ORDER OF RETRIAL: Ingredients an Appellant must prove to sustain the charges in a civil Court for an order of retrial

 

 

"The apex court in CHIEF OF AIR STAFF VS. IYEN supra stated thus:- "It is a fundamental principle of law that courts of law, like nature, cannot act in vain. They must act for a purpose and for a purpose only. In other words, courts of law cannot make an order in vain. Let me show why an order of retrial if made will be in vain. By virtue of section 103(1) of Decree No.105 of 1993 as amended in order to sustain the charges in a civil court, the Appellants must prove the following ingredients:- (a) That the Respondent is subject to service law (b) That the Respondent was involved in a conduct, and (c) That the conduct of the Respondent was prejudicial to good order and service discipline. That was the decision in AKONO vs. THE NIGERIAN ARMY (2000) 14 NWLR (pt 637) 138 at 331. In view of the fact that the Respondent was retired from service on 27th April, 1996, the Appellant cannot prove their case, even if a retrial is ordered." Indeed on March 5th, 2012, the apex court again reiterated in the case of SENATOR JOEL DANIAMI IKENYA, HON ISA ALU AJIYA, ACTION CONGRESS OF NIGERIA (ACN) VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS APPEAL NO. C. 13/2012, (2012) 3 SC page 1 at 14 per MAHMUD, JSC in his lead judgment thus:- "As for the relief of rehearing of the appeal by a different panel of the Court of Appeal sought by the Appellants. In this court that relief cannot be granted because the 60 days under subsection 7 of section 285 of the Constitution of the Federal Republic of Nigeria, 1999 within which the Appellant's appeal must be heard and determined had already lapsed as the judgment of the Election Tribunal giving rise to the appeal was delivered since 10th November, 2011. It will therefore be a futile exercise, in my view, granting that relief." Applying this principle of law to the instant application and the view of the Respondent that the appeal be proceeded with, I hold that for the reasons earlier set out in this Ruling, it will be a futile exercise, which this court cannot embark upon, as there can be no head way." Per DANJUMA, J.C.A. (Pp. 72-74, paras. F-B)

 

 

 

 

8

CRIMINAL LAW AND PROCEDURE - PENAL PROVISIONS: How the provisions of any enactment capable of two interpretations should be interpreted in criminal trial and prosecution

 

 

"I should say that in criminal trial and prosecution or penal provisions, the provisions of any enactment capable of two interpretations would have it interpreted in favour of a person that might be adversely affected. The submission in that respect by the Appellant's counsel is the correct statement of the law." Per DANJUMA, J.C.A. (P. 68, paras. D-F)

 

 

 

 

9

COURT - POWER OF COURT OF APPEAL: Power of Court of Appeal to deal with any case before it on appeal

 

 

"It must be understood that an appeal is by way of a rehearing; see Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, (now 2011 Rules) and the case of EDJEKPO & ORS VS. OSIA & ORS. Indeed this court in exercise of powers under section 17 of the Court of Appeal Act 2004, shall be entitled to exercise all the powers of the trial tribunal by looking at the exhibits. In OSHOBOJA VS. AMUDA (1992) 6 NWLR (Pt.250) 960, UWAIS (JSC as he then was) held at 708: "There is no doubt that section 16 has given the Court of Appeal amplitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of 1st instance and in the present case the jurisdiction of the High Court." Per DANJUMA, J.C.A. (P. 67, paras. C-F)

 

 

 

 

 

 

 

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): This is an application brought by way of motion on notice dated 23rd of January, 2012 and filed on the same day praying this court for an Order quashing the conviction and sentence of the Appellant/Applicant as handed down on the 8th and 9th days of July, 1998 respectively by the Enugu Zone of the now defunct Failed Banks Tribunal in Charge No. FBT/EZ/03C/96: Federal Republic of Nigeria vs. Chief Ajibowu A. Owoade & 2 others.

The grounds for bringing the application are as follows:

(a) By virtue of the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981 [being the then applicable Rules of Court], it is the duty of the Registrar of the Court below, in this instance, the Failed Banks Tribunal, Enugu Zone, to prepare and forward to the appellate Court, in this instant, the Court of Appeal, the Record of Appeal relating to the criminal appeal of the Appellant/Applicant as evidenced by Notices of Appeal dated the 27th day of July, 1998 and 2nd December, 1998.

(b) The Registrar of the Failed Banks Tribunal, sitting at Enugu, did perform this duty as contemplated under the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981, by transmitting and/or delivering to the registry of the now defunct Special Appeals Tribunal, then sitting at Lagos, 3 volumes of the Record of Appeal compiled by him and in respect of the Appellant/Applicant's appeal, and the over 400 Exhibits tendered at the trial of the Appellant/Applicant before the Enugu Zone of the Failed Banks Tribunal and on which the Tribunal relied in convicting and sentencing the Appellant/Applicant.

(c) Upon the dissolution of both the Failed Banks Tribunal and the Special Appeals Tribunal in 1998 by the then Federal Military Government of Nigeria, the Record of Appeal together with the Exhibits referred to in sub-paragraph (b) above were delivered to the registry of the Calabar Division of the Court of Appeal by the registry of the now defunct Special Appeals Tribunal

(d) By letter dated the 4th day of October, 2002, the Registry of the Calabar Division of the Court of Appeal delivered the following processes/documents to the registry of the Lagos Division of the Court of Appeal namely:-

"1. Original Case File Folios 1-132

  2. Notice of Appeal-11 copies

  3. Record of Appeal Vol. One to Three-21 copies each

  4. Exhibits Serials Nos. OP 1-104 & OD 1-71

(e) The documents/processes referred to in sub-paragraph (d) above were received at the registry of this Honourable Court by G. Ogundipe on the 4th day of October, 2002.

(f) By letter dated the 23rd November, 2011, the registry of this Honourable Court informed the Appellant's Counsel, Messrs. Aluko & Oyebode, that the aforementioned Exhibits could not be located despite considerable efforts by the registry of this Honourable Court.

(g) By reason of the contents of grounds (a)-(f) above, the Appellant/Applicant's ability to properly and diligently prosecute his appeal before both this Honourable Court and the Court of Appeal has been greatly impaired, thereby violating his constitutional right to fair hearing and his right to be given every reasonable opportunity to prosecute his appeal.

The Appellant/Applicant filed an affidavit in support and Affidavit in support No. 2 both dated the same day, the 23rd of January, 2012 in support of the application. The Respondent, in response filed a counter affidavit dated the 28th of June, 2012.

The Appellant's/Applicant's argument is that his conviction and sentence be quashed because there is no proper record on which his appeal can be heard. Counsel submitted that for a court to hear an appeal there must be proper records.  Counsel argued that this court has jurisdiction to hear appeals from the now defunct Failed Banks Tribunal by virtue of Decree 62 of 1999 and Section 240 of the 1999 Constitution which is in pari materia with Section 220 of the 1979 Constitution. Counsel submitted that the Court of Appeal Rules make provisions on how records of appeal should be compiled. He submitted that these rules set out what the records must contain for an appeal to be heard. Counsel pointed out that Order 17 Rule 9 (f) states that all documentary exhibits must be in the record. Counsel argued that in this case, proper records cannot be compiled because the Exhibits relied upon by the defunct Failed Banks Tribunal to convict the Applicant are missing, which makes the prosecution of the Appellant's appeal impossible. Counsel argued that the Appellant/Applicant's constitutional right of appeal has been damaged permanently by this fact and the only option left for the court is to quash his conviction. 

Counsel pointed out that the Applicant was convicted by the Tribunal by reference to the various Exhibits: Exhibits OP 1-104 and OD 1-71 which are now missing and that the appeal cannot properly be heard without a re-evaluation of the said missing exhibits. Counsel submitted that to refuse the application on the sole basis that the Applicant might be able to get the Exhibits eventually would be unjust. Counsel further submitted that where any provision of the law is capable of two interpretations, where one protects the liberty of a person, it is the liberal interpretation the court must accept particularly in criminal matters. He cited Haastrup W. A. Ltd. Vs. Welding Eng. (1996) 9 NWLR Pt. 470 Pg. 92 at Pg. 98-99; ABIODUN V. A. G. FEDERATION (2007) 15 NWLR Pt. 105 Pg. 359; Chief of Air Staff & Ors. V. Iyen (2005) 6 NWLR Pt. 922 Pg. 496 at 555; Ukpe V. Udon (1999) 6 NWLR Pt. 609 Pg. 293 at 300-301.

Counsel to the Applicant, in proving that the loss of the said Exhibits is not the fault of the Applicant relied on all the paragraphs of both affidavits in support of the application and placed particular reliance on paragraphs 9, 13, 23, 24-29, 32-36. Counsel also relied on Exhibits AA7, AA8, AA9 and AA10.

The Respondent's counsel in reply argued that it is wrong for the Applicant to invite this court to determine the main appeal at the interlocutory stage. Counsel submitted that a court's decision can only be interlocutory where the Order sought does not deal with the final rights of the parties. Counsel argued that if the court grants the application, the appeal will not be heard on its merit.

Moreover, Counsel argued that the Exhibits relied upon by the Applicant, Exhibit AA9 & AA10 only show that the said missing Exhibits were transmitted to the Lagos Division and received by one G. Ogundipe, but fails to show that the Exhibits are indeed missing. Counsel also pointed out that Exhibit AA7 was written before Calabar Division confirmed to the Applicant that the 'missing Exhibits' were sent to the Lagos Division. Counsel submitted that after the receipt of AA9 and AA10, this court should have made an official statement with respect to the said Exhibits. Counsel cited Naireko Enterprise Ltd v. First Bank Nig. Plc (2001) Pt. 695 Pg. 436 at Pg. 442. Counsel urged the court to dismiss the application as incompetent and hear the appeal on the merit.

In a reply to the Respondent's counsel's argument, Appellant's counsel submitted that the Appellant's conviction and sentencing can be quashed at this stage. Counsel cited Haastrup v. Welding Eng. Co. Nigeria Ltd (1996) 9 NWLR Pt. 470 Pg. 92. Counsel argued that in that case, the appeal was never heard and the judgment of the lower court was quashed by way of an application. Counsel pointed out that the Applicant spent 45months in prison custody before he was admitted to bail from custodial sentence while in prison and counsel argued that it was unfair to continue to make him suffer when the State could easily resolve the matter.

       

Counsel averred that the issue of this court writing to confirm the loss of the missing exhibits does not arise. He reiterated that the Appeal cannot be argued without the evaluation of the missing exhibits. He cited Ukpe v. Ndon (1999) 6 NWLR Pt. 606 Pg. 292 at Pg. 300-301. He urged the court to grant the application as it is only fair and just as it is the Respondent that is responsible for the impediment visited on the Appellant.

This is an extraordinary application because loss of exhibits that causes the inability of Appellant to argue his appeal does not occur ordinarily in the normal course of events. The problem we are faced with here is whether the appellate jurisdiction can be activated to grant the remedy being sought by the Applicant in the circumstances of this case. 

I think it is appropriate to state the history albeit briefly of this case. The Applicant was charged before the failed Banks, Recovery of debts and financial malpractices in Banks Tribunal, Benin Zone. He was charged on 36 counts of various banking malpractices as Executive Vice Chairman of Prime Merchant Bank Ltd between 1991-1994. At the conclusion of the trial, Justice Ifeyinwa C. Nzeako Chairman of the Tribunal delivered his judgment on 8/7/98. On Pg. 11-13 of the judgment, his Lordship adopted the synopsis of what had transpired at the trial Court from 23/4/96-8/7/98 as stated in the address by 1st Accused's counsel as follows as in vol. III of the Record:

"THE SIXTEEN MONTH TRIAL: TWELVE (12) WITNESSES And At Least 403 Complex Exhibits

Chief Owoade's arraignment and the further preliminary interlocutory skirmishes referred to in Chapter 2 above and done with, trial by viva voce testimony of witness stated on 12th June, 1996, and endured for the next sixteen (16) months (or thereabouts), usually from day-to-day, save where wholly impracticable.

In total ten (10) witnesses testified for the prosecution, and it took these witnesses (led in evidence by their distinguished counsel) some ten (10) months for the revelation of their whole case to have become entirely unfolded; starting with P.W.1's re-examination, on 4th March, 1997.

With the Prosecution's case closed on 4th March, 1997, as just above stated, the defence of Chief Owoade opened barely one week later, on Thursday, 13th March, 1997, to be precise-with his own testimony rendered on his behalf.

He testified for thirty-seven full days; spanning the period 13th March, 1997 to 27th August, 1997 inclusive on which date, with his evidence in Re-examination concluded, his Counsel announced the close of his defence.

The state of oral testimony by the Second (2nd) Accused person followed immediately on this same date, and continued for another month (or thereabouts) until 25th September, 1997, when his own counsel likewise announced the close of his defence without recourse to the aid of any other witness(es).

(As Chapter 2.3 above has indicated, Joseph Uwagba-the Third (3rd) Accused-neither appeared at the trial, nor was he represented by Counsel. Little wonder, therefore, that no testimony of any kind was volunteered on his behalf)

The evidence of many of the twelve (12) witnesses who testified on both sides was technical, and predominantly numerate, in that it spoke to specialized Banking-matters with which many of the lawyers who appeared (and this Counsel boldly confesses to being one of them) had had no previous encounters!!

To further compound matters, at least four hundred and three (403) documentary-exhibits were offered and received in evidence through them during the course of trial. Some two hundred and ninety-six (296) of these (variously designated Exhibits OP.1 to Op.104) were tendered and received during the evidence-in-chief and re-examination of the Prosecution-witnesses, while some one hundred and seven (107) further ones (differently styled Exhibits OD.1 to OD.71) found their way into the Tribunal's records either during the cross-examination of the Prosecution-witnesses by the Defendants' Counsel, or otherwise in the course of the defence testimonies of both Chief Owoade and Rotimi Oyekanmi. 

The Exhibit OD.14(1) to OD.14(10) eries alone bring PMB's Statements Account given to it by American Express Bank Limited in respect of Prime's foreign currency accounts with which some of the charged offences shall be concerned, runs into some five hundred and sixty three (563) pages, while numerous other ones are daunting epistle-like substantial and continuous series of documents in their own separate and individual right, interspersed with figures, and/or analyses of figures, and/or data not always readily intelligible to the uninitiated."

The learned trial judge found the Applicant guilty of 24 out of the 41 counts charged, and passed sentences of five (5) years imprisonment in respect of count 2 and sundry amounts as fine in all the other counts. The Applicant spent 45 months, about nearly four years in custody before he was granted bail. 

The questions agitating my mind are as follows:

1. Can the Applicant come by way of an application to seek a remedy at the Court of Appeal in the circumstances

2. Is there clear evidence that the records have been lost

3. Would there be a violation of the Appellant's right to a fair hearing on appeal if the second question is in the affirmative

4. What is this court obliged to do in the circumstances of this case.

The relevant paragraphs of the Applicant's affidavit are as follows:

9. I state that my Counsel did attend the Registry of the Trial Tribunal on three (3) occasions to ensure the speedy and proper compilation of my Record of Appeal by the Registry of the Trial Tribunal, and amongst the process/documents that was agreed to be contained in the Record of Appeal were copies of all the 403 Exhibits tendered at my trial. Also, the original copies of the said Exhibits as tendered before the trial Tribunal was agreed to be transmitted to the Registry of the Special Appeals Tribunal by the Registry of the trial Tribunal.

13. I state that 3 [three] volumes of the Record of Appeal were delivered also to my counsel. The 3 volumes comprise:

(a)  Volume 1-titled "Documents and Evidence"

(b)  Volume 2-titled "Address by Prosecution and Defence"

(c)  Volume 3-Titled "Judgment"

23. The Registry of the Calabar Division of the Court of Appeal transferred to the Court of Appeal, Lagos, the case file of my Appeal with No. SAT/FBT/493/98: Federal Republic of Nigeria vs. Ajibowu A. Owoade together with the Record of Appeal as compiled by the Registry of the Failed Banks Tribunal

24. I state that subsequent to the transfer of Appeal No. SAT/FBT/493/98: Federal Republic of Nigeria vs. Ajibowu A. Owoadefrom the Calabar Division of the Court of Appeal, Lagos, my counsel, Adeniyi Adegbonmire continued to make spirited efforts to locate the 403 Exhibits tendered at my trial and upon which the trial Tribunal relied upon in convicting and sentencing me.

25. During the course of my Counsel, Adeniyi Adegbonmire's efforts to locate the said 403 Exhibits, he visited the underlisted places several times:

(a) The Registry of the defunct Failed Banks Tribunal, sitting at Enugu

(b) The Registry of the defunct Special Appeals Tribunal, Lagos

(c) The Registry of the Calabar Division of the Court of Appeal

26. Adeniyi Adegbonmire informed me on several occasions during the period 1998 to-date and I verily believe him, that:

(a) The Registries of both the Failed Banks Tribunal and the Special Appeals Tribunal are no longer functional.

(b) The Registry of the Calabar Division of the Court of Appeal did not have in its custody, the 403 Exhibits tendered during the course of my trial before the trial Tribunal 

(c) It is impossible for him to properly and diligently settle a brief of arguments on my behalf in furtherance of the sustenance of my appeal with reference to the 403 Exhibits tendered at my trial.

(d) My trial was largely documentary with the trial Tribunal convicting and sentencing me based upon its understanding of the contents of the 403 Exhibits.

(e) My right of appeal has been greatly impaired by the non-inclusion by the Registry of the trial Tribunal in the Record of Appeal of the 403 Exhibits tendered at my trial.

28. I state that during the course of searching for the Exhibits, my counsel, Adeniyi Adegbonmire, caused a letter dated the 5th day of September, 2005 to be delivered to Mr. Fred O. Orbih, SAN, the Prosecutor, requesting to know if he had certified true copies of the 403 Exhibits in his custody as to have them included in the Record of Appeal and also brought to his knowledge the constraints my Counsel was and continues to encounter towards my quest to have my appeal against my conviction and sentence diligently prosecuted.

Attached and marked Exhibit AA.4 is a file copy of my Counsel's letter of 5th September, 2005.

29. I state that the Respondent at the Court of Appeal filed application to dismiss my appeal for want of diligent prosecution by reason of my Counsel's failure to file a brief of argument on my behalf

32. Subsequent to the 14th day of November, 2011, my Counsel, Adeniyi Adegbonmire, delivered a letter dated the 17th day of November, 2011 upon the Deputy Chief Registrar of this Honourable Court, enquiring from the registry of this Honourable Court if it had in its possession, the Exhibits tendered at the trial Tribunal and employed in convicting and sentencing me.

Attached and marked Exhibit AA.5 is a certified true copy of my Counsel's letter of 17th November, 2011 together with its attachment.

33. By letter dated the 23rd of November, 2011 and written in reply to my Counsel's letter of 17th November, 2011, the registry of this Honourable Court, informed my counsel that it had no trace of the Exhibits tendered at my trial before the trial Tribunal.

Attached and marked Exhibit AA.6 is a certified true copy of a letter of this Honourable Court's registry dated 23rd November, 2011.

34. I state that the original copy of this Honourable Court's registry was delivered upon my Counsel. Attached and marked Exhibit AA.7 is a copy of the letter of the registry of this Honourable Court as delivered to my Counsel, Adeniyi Adegbonmire.

35. Consequent upon the receipt and contents of the letter of the registry of this Honourable Court referred to in paragraphs 33 and 34 above, Adeniyi Adegbonmire caused a letter dated the 24th day of November, 2011 to be delivered upon the Deputy Chief Registrar of the Calabar Division of the Court of Appeal, requesting that he confirm whether or not the Exhibits tendered at my trial Tribunal were in the custody of the Calabar Division of the Court of Appeal Attached and marked Exhibit AA.8 is a copy of my Counsel's letter of 24th November, 2011, with its attachments as certified by the Registry of the Court of Appeal, Calabar Division.

36. By letter dated the 28th day of November, 2011, the registry of the Court of Appeal, Calabar Division informed my Counsel, that the Exhibits employed by the trial Tribunal to convict and sentence me were transmitted by that registry to the registry of the Lagos Division of the Court of Appeal on the 4th day of October, 2002.

Attached and marked Exhibits AA.9 and AA.10 respectively are certified true copies of the letter dated 28th November, 2011 and its enclosure

Exhibit AA.10 is a letter written by the registry of the Court of Appeal, Calabar Division to the registry of the Lagos Division of this Court and it states as follows:

"Reference to this office letter No. CA/C/P.J/Vol. 1/127 dated 15th August, 2002 on the above matter pending in this court.

I am directed to forward herewith underlisted documents in respect of the case.

They are as follows: -

1. Original Case File Folios 1-132

2. Notice of Appeal 19 Copies

3. Record of Appeal Vol. One to Three 21 Copies each

4. Exhibits Serials Nos. OP 1-104 & OD 1-71."

Exhibit AA7 is a letter from this court's registry conceding that there is no trace of the said missing Exhibits in the registry of this court and it reads thus:

"Attention:  Adeniyi Adegbonmire 

Re: Appeal No: CA/L/262/99

Chief A. A. Owoade Vs. Federal Republic of Nigeria

Your letter dated 17th November, 2011 refers, please.

Upon diligent search at the Court Registry and the Exhibit Room, it was discovered that no traces of the Exhibit (s) is in the custody of this Court.

Accept the highest consideration of the Honourable Court."

It was signed by one Mrs. Rose Thompson, Head of Department, Litigation and dated 23/11/11. The following day by Exhibit AA8 the Applicants lawyers wrote a lengthy letter to the Calabar division attaching Exhibit AA7. Exhibit AA.9, a letter written by the registry of the Court of Appeal, Calabar Division in reply to the Appellant's Counsel dated 28/11/11 reads as follows:

"With reference to your letter dated 24th November, 2011, I am directed to inform you that the above mentioned Record and the exhibits numbering from OP 1-104 and OD 1-71 respectively were transmitted to Lagos Division of the Court of Appeal on 4th October, 2002.

I enclose herewith a letter forwarding the said Record and the exhibits."

The Respondent objected to the application on the basis that it cannot be heard as it may determine the appeal at an interlocutory stage. I do not think that, that is a valid argument. There is no other way to bring this issue up before the court except by application. It cannot be a ground of appeal to be heard within the appeal as the issue did not emanate from the findings of facts or conclusions of law reached by the trial court. Order 7 of the Court of Appeal Rules mandates that such applications extraneous or intrinsic to the appeal must be brought to the court. That was what occurred in Haastrup W.A v. Welding Engineering supra cited by the learned Applicant's counsel wherein a similar application was made, considered and granted by the Court of Appeal. I am of the view that the Appellant/Applicant's application is proper in the circumstances.

It is clear from the Exhibits attached to the affidavit in support of this application particularly Exhibit AA7 already set out above that through the negligence or deliberate fault, the Registry of the Lagos Division of this Court has lost the Exhibits transmitted to it as per Exhibit AA10 on 4th October, 2002. I agree with learned Appellant's counsel that the issue cannot be left in limbo with the hope that the Exhibits already declared lost without a trace by Exhibit AA7 will eventually be found. I resolve the first and second question in the affirmative.

The next question is whether there has been a violation of the rights of the Appellant/Applicant by the loss of the Exhibits. In Abiodun v. A.G Federation supra at Pg. 406-409, the court of Appeal interpreted Section 36(1) and (7) of the 1999 Constitution and held that a court or Tribunal trying an accused person for a criminal offence must of necessity maintain a record of the proceedings of the trial. And at the close of the trial, such an accused person who requests for it, is entitled to be given a copy of the judgment of that court/tribunal within seven days. 

Section 240 of the 1999 Constitution provides as follows: - 

240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a  State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly. 

Order 17, Rule 7 & 9 of the Court of Appeal Rules provides as follows:- 

7. (1) When-

(a)the registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of the time within which such notice shall be given; or 

(b)the court below has granted leave to appeal, the registrar of the court below shall prepare the Record of Appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizances entered into or any other documents filed in connection with the appeal or application.

(2)Subject to the provisions of Rule 9 of this Order, the registrar of the court below shall forward to the Appellant and to the Director of Public Prosecutions of the State from which the appeal emanated a copy of the record. Provided that if the Appellant is not in custody a copy of the record shall only be supplied to him on request.

(3)The Court may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it may impose.

9.-(1)The Record of Appeal in appeals or applications relating to appeals from the court below acting in its original jurisdiction in criminal cases shall contain legible typed, stenciled and cyclostyled, or printed, copies of the following items arranged in this order -    

(a) the index;

(b) the charge or information; 

(c) the Judge's notes of the evidence and minutes of the proceedings provided that if a shorthand note of  the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or in substitution of the Judge's notes, as he may direct;

(d) the judgment or any additional ground or explanation thereof; 

(e) the proceedings on or after sentence in so far as not included in the notes of hearing or minutes of proceedings; 

(f) all documentary exhibits put in at the trial including depositions read in consequence of the absence of a witness: Provided that in cases of books of accounts or other documents of great length, extracts of the relevant portions thereof only shall be included;

(g) the notice of appeal or notice of application for leave to forwarding of proceedings of court below to the Registrar appeal, or notice of application for extension of time in which such notice shall be given. 

(2) It shall not be necessary for the Record of Appeal to contain copies of any recognizances entered into or documents filed in connection with the appeal or application other than those set out in sub-rule (1) of this Rule unless the court or a Judge of the court below shall otherwise direct."

I am convinced that in the circumstances of this case, Order 17 Rule 7 (1) (b) and 9 (1) (f) cannot be obeyed by the Registry of this court. Thus, the Applicant has been deprived of the right to bring all his case on appeal before the court of appeal. Since his major complaint is that the documentary exhibits were not properly evaluated by the trial court, his inability to do this would do untold damage to his case on appeal.

It is the duty of the court of appeal not to hear an appeal on incomplete records. In the peculiar circumstances of this case, the exhibits were the basis of the case made out against the Applicant. One of the grounds of appeal is that the judgment of the Tribunal was given against the weight of evidence-which consisted of the missing exhibits. Counsel cited Ekpemupolo Vs. Edremoda (2009) 8 NWLR Pt. 1142 Pg. 167 wherein Chief Okochi Vs. Chief Animkwoi was cited with approval to buttress the argument that the court is entitled to look at the records of proceedings binding on the parties and the court. In situations where the judgment of a court is said to be lost and the record of proceedings or part thereof are missing, the court have always leaned towards setting aside the lost/missing judgment and depending on the circumstances of the case, ordered a retrial unless such order of retrial would be oppressive. 

In Bello Vs. A. G. Oyo (1986) 5 NWLR Pt. 45 Pg. 828, the Supreme Court held inter alia that whenever the court finds that a Plaintiff has been wronged by a Defendant especially where the Defendant has breached the duty he owes to the Plaintiff consequentially causing a legal injury to the Plaintiff, it is the duty of the court to provide a remedy for the Plaintiff even if none had hitherto been prescribed in the statute books for where there is a wrong, there must be a remedy. 

In Okochi Vs. Animkwoi (2003) 18 NWLR Pt. 851 Pg. 1 at Pg. 23-24. Tobi JSC who read the leading judgment was of the view and on this there was no dissent by the other Justices on the panel that where all diligent efforts to procure the missing part of a record fails, the court should take the most painful decision of ordering a retrial in the case if the missing portion of the record is material to the appeal. Even though an order of retrial will prolong the litigation, an appellate court has no choice in the matter. It would be unjust to hear an appeal on incomplete record. In Ogidi Vs. The State (2005) 5 NWLR Pt. 918 Pg. 286, where  the Supreme Court held that the provisions of S. 36 (7) of the 1999 Constitution required a court trying any criminal offence to keep a record of proceedings. It is therefore absolutely important for courts involved in the trial of such offences to scrupulously keep the records of proceedings in accordance with the demands of the Constitution. Failure to do may vitiate the trial as a nullity. 

In Akinmolarin Vs. Yeyebinu Western State Court of Appeal (1975) NWLR 45 held that as the judgment appealed against is not before the Appeal court, the Appeal court is unable to know how the final conclusion was reached by the learned trial judge, and an order of retrial before another judge would be made. 

In Engineering Enterprises Nig. Ltd. Vs. A. G. Kaduna (1987) 2 NWLR Pt. 57 Pg. 381, the Supreme Court Oputa JSC held as follows:

  "The courts have duty to investigate and discover what in any particular case will satisfy the interest and demands of justice and the interest and demands of justice will certainly be dictated by the peculiar facts and the surrounding circumstances of each case." 

The court ordered a retrial. Every wrong not the fault of a party must not be visited on that innocent party and where agents of the state are at fault, the innocent victim must be atoned. 

In Haastrup W. A. Ltd. Vs. Welding Eng. Co., the Applicants had applied to the Court of Appeal seeking an order of retrial by the trial High Court on the ground that the lower court's record is missing. The Court of Appeal granted the application and ordered a retrial. The court of appeal held unanimously that once an Appellant to the Court of Appeal has deposited money at the lower court for the making us and forwarding of the record of appeal to the Court of Appeal, he has discharged his duty. He is not under any obligation to do anything more. If the records have not been transmitted or are missing, it is the Registrar of the Court that has failed to do his duty. Katsina-Alu JCA (As he then was) stated categorically at Pg. 99 of the NWLR as follows: 

"I have no doubt whatsoever that the only order that may be consistent with the Appellant's constitutional right of appeal as provided by S. 220 of the 1979 Constitution is to give him another opportunity to start all over so that his right of appeal, which he was deprived of may be restored if the result of the retrial so warrants."

After the hearing of this appeal, learned Respondent's counsel sent in the case of Arewa Paper Converters Ltd. Vs. NDIC (NUB) Ltd (2006) 15 NWLR Pt. 1002 Pg. 404 to 442 and urged the position that the said case is authority for the proposition that the Court of Appeal has no jurisdiction over an appeal from the Failed Banks Tribunal. The Applicant's counsel did not respond to this. Even though it is belated, because it is a matter of jurisdiction I cannot ignore it. I have looked thoroughly at the case of Arewa Paper Converters Ltd. Vs. NDIC supra. I cannot agree that the effect of the lead judgment of Mohammed JSC in that case is the general and sweeping proposition that the Court of Appeal has no jurisdiction over appeals from the failed Banks Tribunal. In that case the Supreme Court was obliged to interprete Decree 62 of 1999. In determining the appeal, the Supreme Court considered the provisions of section 5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree No. 18 of 1994 and sections 2 and 3 of the Tribunals (Certain Consequential Amendments, etc) Decree 62 of 1999. The relevant portions are set out below:

Section 5 (1), Decree No. 18 of 1994:-

5 (1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunals) Decree 1984, as amended, in accordance with the provisions of that Decree. 

(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the tribunal shall be final."

Sections 2 and 3 of Decree No. 62 of 1999: 

2 (1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under the enactments specified in the schedule to this Decree. 

(2) Accordingly, a tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved. 

(3) A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the Schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this subsection without further assurance than this Decree. 

(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved. 

(5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of this Decree. 

(6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the judgment may be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be: 

Provided that the judgment shall have been written. 

(3) (1) whether any part heard matter is pending before any Tribunal on the date of making this Decree, the Judge: 

(a) may, if the parties to the proceedings agree in a civil cause, adopt the proceedings of the Tribunal concerned. 

(b) shall, in a criminal case, try the matter de novo pursuant to this Decree. 

(2) All new proceedings shall be brought before the court in accordance with the rules of procedure of the court concerned."

It is trite that a case is authority for the facts and law it decides upon. In APC Ltd. Vs. NDIC, the Appellant had been charged before the Failed Banks Tribunal, Kano Zone and judgment entered against it under the undefended list procedure on 24/4/98. There was no appeal against the judgment by the Appellant up till 28/5/99 when the Tribunals (Certain Consequential Amendments) Decree No. 62 of 1999, dissolving the tribunals and transferring all pending part heard matters to the Federal High Court for hearing and determination came into force. On 22/10/99 the Appellant filed an application at the Federal High Court Kaduna to have the judgment set aside because it was not served the writ of summons before the default judgment against it by the Tribunal was given. The High Court refused the application and the Court of Appeal upheld the Respondent's Preliminary Objection to the effect that the Court of Appeal had no jurisdiction to entertain an appeal from a decision of the Tribunal. The Supreme Court also held the same view. The Supreme Court interpreted the provisions of S.5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks Decree No. 18 of 1994 and S. 2 & 3 of the Tribunals (Certain Consequential Amendments etc.)) Decree No. 62 of 1999. 

My own understanding of the lead judgment of Mohammed JSC is that the High Court had no jurisdiction to set aside the judgment of the Failed Banks Tribunal and afortiori the Court of Appeal cannot have any jurisdiction to hear an appeal in such an event. We must remember that in the case of APC Vs. NDIC the Appellant did not appeal against his conviction against the decision of the Tribunal within 21 days to the Appeal Tribunal which was functioning in 1998 when it was convicted. By S. 5 (1) of Decree 18 of 1994 under which it was convicted it had only 21 days to appeal to the special Appeal Tribunal established for that purpose. 

Mohammed JSC on Pg. 432 paragraph H, Pg. 433 paragraph D-E; Pg. 435 paragraph E went to great pains to make the point that the relief sought by the Applicant before the Federal High Court could not be heard because the Appellant wanted a judgment delivered on 24/4/98 by the Failed Banks Tribunal set aside when at the time the judgment was delivered the Federal High Court had not been invested with jurisdiction in suits connected with Failed Banks. The Federal High Court was conferred with jurisdiction with effect from 28/5/99. The point made by His Lordship severally is that as at the time the Appellant was convicted and did not appeal, only the Special Appeal Tribunal could have heard his appeal. 

By 28/5/99 when the Failed Banks Tribunal and Special Appeal Tribunal were dissolved, his right of appeal had lapsed having not been exercised by him. The point was also made clearly by His Lordship that the only rights kept alive and transferred to the Federal High Court and afortiori to the Court of Appeal were in respect of cases pending before the Tribunal which shall be deemed to have been filed before the Federal High Court. 

Also, any order or judgment before the commencement of Decree 62 shall be preserved etc. His Lordship held that the jurisdiction of the Federal High Court is confined to part heard matters left behind by the defunct Failed Banks Tribunal at various stages of proceedings before the Tribunals became defunct. A completed case and judgment cannot thus fall within the category of a part heard matter to imbue the Federal High Court with jurisdiction. In the ordinary course of events you go to the same court or court of coordinate jurisdiction to set aside what you perceive to be a null judgment. What the Supreme Court says in that case was that the case of the Appellant could not be accommodated under S. 3 (2) of the Decree No. 62 of 1999 as a new proceeding or a part heard proceedings. See Pg. 436 paragraph E-F. It might have been different if the Appellant in that case had appealed within time to the special Appeal Tribunal or gone back to the Failed Banks to set aside the judgment. It is relevant to set out the portion of his Lordship's judgment on page 439 of the NWLR thus:

"This is because the case of the Appellant was governed by the provisions of the Failed Banks Decree 1994 before its amendment in 1999 and therefore the rights and obligation of the parties in this appeal in respect of the case must be determined in accordance with the law prevailing before the amendment. See A-G. Lagos State Vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Alao Vs. Akano (1988) 1 NWLR (Pt. 71) 431; Uwaifo Vs. A.-G. Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih Vs. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 201; Rossek Vs. A. C. B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 474 and the recent decision of Adah Vs. N. Y. S. C. (2004) 13 NWLR (Pt. 891) 639 at 648, where Uwaifo, JSC observed: 

"It ought to be understood that the law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard."

Thus, in the case at hand, upon the state of the law conferring jurisdiction on the Federal High Court as at 222-10-99 in respect of matters arising from the Failed Banks Decree No. 18 of 1994 as amended, the Federal High Court was deprived of the jurisdiction to entertain and determine the Appellant's application."

The circumstances and facts of that case are quite different from the facts of the case at hand. The Appellant / Applicant herein was convicted and sentenced on 8th and 9th July, 1998. He filed the requisite notices of appeal on 27/7/98 and then 2nd December, 1998 against his conviction and sentence. Thus, he had appealed to the Special Appeal Tribunal within time. By S. 7 (1) of Decree 62 of 1999, right of appeal to the court of Appeal within 30 days of the judgment was preserved. Thus the jurisdiction of the Special Appeal Tribunal was determined and given over to the Court of Appeal. The Appellant had been pursuing his appeal at both the Calabar and Lagos Division of the Court of Appeal since 1999. The Decree No. 62 did not take away the right of appeal from the judgment of the Tribunal to the Appeal Tribunal and consequentially to the Court of Appeal. 

Learned Applicant's counsel had argued that an order of retrial would be unconstitutional and against S. 36 (7) and (9) of the 1999 Constitution. He cited Abiodun Vs. A.-G. Federation (2007) 15 NWLR Pt. 1057 Pg. 359. It is appropriate to note that the facts of this case are quite different from the facts in Abiodun Vs. The State. In that case apart from the fact that it was both the record of proceedings and judgment that were missing, the Appellants had served their full term and it would have been onerous and cause untold hardship for them to be jeopardised a second time by a retrial. In this case, I think it would be a dangerous precedent, the Applicant having not served his term of imprisonment and only the exhibits missing to have his conviction quashed without an order of retrial made. 

I have considered the totality of the circumstances of this case. The Applicant withdrew the second leg of the application which was for an order directing that the proceedings relating to the charge be remitted to the Federal High Court for trial de novo. The second leg of the prayers was a natural consequence of the grant of the first leg of the prayers. Most of the authorities tend to the view that in the circumstances, the appropriate order would be an order of retrial. I have considered the fact that the judgment and proceedings in this case had been transmitted. What is missing are the Exhibits. The sentences had not been served by the Applicant since he had been on bail. It would in my view not be onerous to order a retrial which would be a consequential order to the first leg of the application.

I hereby quash the conviction and sentence of the Appellant/Applicant as handed down on the 8th and 9th of July, 1998 in Charge No. FBT/EZ/03C/96: Federal republic of Nigeria v. Chief Ajibowu A. Owoade & 2 Ors. I also order that the said charge be remitted to the Federal High Court sitting in Lagos for trial de novo. Order as prayed.

RITA NOSAKHARE PEMU, J.C.A.: I have read in draft, the lead Ruling of my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.

I agree entirely with her reasoning and conclusion. 

It is unfortunate that the Appellant had spent 45 months out of the five (5) years imprisonment. He had also spent four months in custody before he was granted bail. After all these, only to find that at the point of prosecuting the appeal, the exhibits used at the trial in the Court below had vanished into thin air. 

My lord has exhaustively touched on all the issues and it would only be fair to order a retrial in the circumstances. 

The conviction of the Appellant of 8th and 9th of July, 1998 in charge No.FBT/EZ/03C/96, Federal Republic of Nigeria v. Chief Ajibomi A. Owoade is hereby quashed. 

I abide by the consequential order made that the charge be remitted to the Federal High Court sitting in Lagos for trial de novo.

MUHAMMED AMBI-USI DANJUMA, J.C.A.: The Applicant herein has brought this application pursuant to Order 4, Rule 2, 4 and 9, Order 17 Rule 1, 2, and 9 of the Court of Appeal Rules, section 7 and 18 of Act, Cap C36 Laws of the Federation of the Nigeria, 2004, section 36(4) (6) and (7), section 241 (1) of the Constitution of the Federation Republic of Nigeria, 1999 and the inherent jurisdiction of this Honourable Court.

The said application which was filed on 23/11/12 seeks the following orders of this court:-

1. An Order quashing the conviction and sentence(sic) of the Appellant/Applicant as handed down on the 8th and 9th days (sic) of July, 1998 respectively by the Enugu Zone of the now defunct Failed Banks Tribunal in Charge No. FBT/EZ/03C/96 FEDERAL REPUBLIC OF NIGERIA VS. CHIEF AJIBOWU A. OWOADE & 2 OTHERS.

2. AN ORDER directing that, the proceedings relating to charge FBT/E2/03C/96: FEDERAL REPUBLIC OF NIGERIA VS. CHIEF AJIBOWU A. OWOADE & 2 ORS shall be remitted to the Federal High Court of Nigeria, sitting at Lagos for trial Denovo.

AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE that the grounds for bringing this application are as follows:-

(a) By virtue of the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981 [being the then applicable Rules of Court], it is the duty of the Registrar of the Court below, in this instance, the Failed Banks Tribunal, Enugu Zone, to prepare and forward to the appellate Court, in this instant, the Court of Appeal, the Record of Appeal relating to the criminal appeal of the Appellant/Applicant as evidenced by Notices of Appeal dated the 27th day of July, 1998 and 2nd December, 1998.

(b) The Registrar of the Failed Banks Tribunal, sitting at Enugu, did perform this duty as contemplated under the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981, by transmitting and/or delivering to the registry of the now defunct Special Appeals Tribunal, then sitting at Lagos, 3 volumes of the Record of Appeal compiled by him and in respect of the Appellant/Applicant's appeal, and the over 400 Exhibits tendered at the trial of the Appellant/Applicant before the Enugu Zone of the failed Banks Tribunal relied in convicting and sentencing the Appellant/Applicant.

(c) Upon the dissolution of both the Failed Banks Tribunal and the Special Appeals Tribunal in 1998 by the then Federal Military Government of Nigeria, the Record of Appeal together with the Exhibits referred to in sub-paragraph (b) above were delivered to the Registry of the Calabar Division of the Court of Appeal by the registry of the now defunct Special Appeals Tribunal.

(d) By letter dated the 4th day of October, 2002, the Registry of the Calabar Division of the Court of Appeal delivered the following processes/documents to the registry of the Lagos Division of the Court of Appeal namely:-

"1. Original Case File Folios 1-132

2. Notice of Appeal-11 copies

3. Record of Appeal Vol. One to three-21 copies each

4. Exhibits Serials Nos. OP 1-104 & OD 1-71

(e) The documents/processes referred to in sub-paragraph (d) above were received at the registry of this Honourable Court by G. Ogundipe on the 4th day of October, 2002.

(f) By letter dated the 23rd November, 2011, the registry of this Honourable Court informed the Appellant's Counsel, Messrs. Aluko & Oyebode, that the aforementioned Exhibits could not be located despite considerable efforts by the registry of this Honourable Court.

(g) By reason of the contents of grounds (a)-(f) above, the Appellant/Applicant's ability to properly and diligently prosecute his appeal before both this Honourable Court and the Court of Appeal has been greatly impaired, thereby violating his constitutional right to fair hearing and his right to be given every reasonable opportunity to prosecute his appeal."

The Application is supported by an affidavit of 41 paragraphs deposed to by the Appellant/Applicant himself.

Annexed to the application are some exhibits in support of the application. An affidavit headed affidavit in support No.2 was also filed. It was deposed to by one OLUWATOSIN KEHSIRO a legal practitioner to the Applicant.

Annexed to the said affidavit No.2 are documents including the Notice of Appeal to this court filed since 15th July, 1999.

The Respondent on his part, filed a counter affidavit to motion and also a motion to strike out the application (Applicant's motion on the ground that was incompetent that it purports or seeks to determine the appeal at an interlocutory stage.

The motion struck out was filed on 28/6/12 while the counter affidavit was filed same date.

By the counter affidavit, the material averment therein are that the applicant seeks to determine the appeal he filed at an interlocutory stage; and secondly that the 403 exhibits sought for the prosecution of the appeal and claimed to have been lost or are missing are public documents for which applicant has not shown that he has applied for the certified true copies thereof in accordance to section 104(1) of the Evidence Act.

That there was not official document responding to such an application indicating that such exhibits are lost. 

Needless to state that from the tenure of the application, it is clear that the Applicant who had filed an appeal to this court had been convicted on Sundry criminal charges by the Failed Banks Tribunal from whence he lodged his appeal following the scrapping of the Special Military Appeals Tribunal that hitherto exercise jurisdiction as appellate court in respect of trials by the Failed Bank Tribunal which have also been succeeded by the Federal High Court.

It is important to state that the Applicant herein had had his appeal dismissed for want of diligent prosecution by this court, but the said order was quashed on appeal to the Supreme Court with an order to hear the appeal on its merit as the appellant applicants application for adjournment at the court of appeal then was held to have been wrongly refused and an order for dismissal wrongfully entered, the applicant also filed an affidavit of urgency deposing to the cheguered history of the case and all the applications made for the exhibits albeit futilely and the judgment of the supreme Court referred to supra.

References to specific portions of the affidavits shall only be made as and if necessary in the course of this ruling.

Suffice it to say how ever that when the application came up for hearing, the Respondent's learned counsel sought to contend that he was not ready to take the Respondent's motion to have the appeal struck out for want of prosecution because, according, to the learned counsel, MISS C. A. NWEVO who then appeared for the Respondent she was not in a position to proceed with the motion filed as her learned senior, one MR. FERDINANALD was to appear to more same.

The said motion was however struck out for want of diligent prosecution. The Respondent having failed to have the appeal struck out, then left the coast clear for the Applicant to move his application.

In his submissions at the hearing of the motion on 26/6/12, the learned counsel for the Applicant applied to abandon or withdraw the second limb of his Application or prayer, to wit "an order for a hearing or trial de novo by the Federal High Court.

There been no objection thereto the application, it was granted. Proceeding in argument on ground No.1, or rather relief No.1, learned counsel indicated that by the paragraph 9 of the supporting affidavit 403 exhibits were tendered at the trial.

Learned counsel informs the court that 3 volumes of the record of appeal were transmitted as shown by paragraph 13 of the affidavit and at the Appellant's expense, even though it was a criminal appeal.

That series of efforts have been made as deposed to in paragraphs 23 and 24 to ensure that the exhibits were received in this court.

That learned counsel for the Appellants had made strenuous efforts to ensure that the Appeal was heard on the merit by the exhibit being transferred to this court.

That paragraphs 32 - 36 state categorically that the exhibits are missing. Learned counsel referred to exhibits AA7, AA8, AA9 and AA10 as being significant in showing or proving that the exhibits are missing or cannot be traced.

Exhibit AA7 is a letter from the Registry of this court as referred and averred in paragraph 4 of the affidavit to the effect that there was no trace of the exhibits which was sent to this court.

The letter exhibit AA8 was, referred to learned counsel paused to remind this court that it has the jurisdictional vires to hear appeals from the Failed Banks Tribunal.

He referred to Decree No.62 of 1999. The said Decree provides relevantly as follows:-

2(2) Accordingly, a Tribunal established in any of the enactments specified in the schedule to this Decree is hereby dissolved.

2(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this Decree is hereby preserved. 

3. Where any part-heard matter is pending before any Tribunal on the date of the making of this Decree the Judge-

(a) May, if the parties to the proceedings agree in a civil case adopt the proceedings of the Tribunal concerned;

(b) shall in a criminal case, try the matter de novo pursuant to this Decree.

From the provision of paragraph (b) of section 3 Supra it is clear that only part heard matters shall be heard de novo by the Federal High Court (which court has taken over the jurisdiction of the Failed Banks Tribunal as indicated in the said section 2 of the Act.

The Applicants application to withdraw his second prayer for a trial denovo was therefore right as it was a completed case and not a part heard case any longer. Learned counsel is also right when he submitted that this court (the court of Appeal has jurisdiction to hear the appeal and/or entertain the present application. Section 7 (1) of the Tribunals (Certain Consequential Amendments, etc) 1999 No.52 provides thus:

7-(1) A person convicted or against whom a judgment is given under this Decree may, within 30 days of the conviction or judgment, appeal to the court of appeal.

The special appeals tribunal having been dissolved by law and the right of appeal having been conferred on this court as shown in section 7 Supra, the Applicant's counsel is therefore right in his submission and in coming before this court.

Section 240 of the 1999 Constitution provides for the right of appeal from the decisions of the Federal High Court, State High Court, Customary Courts of Appeal, Court Marshall and all such Tribunals as may by the Act of the National Assembly be stipulated or provided.

Learned counsel referred to order 17 Rules 7 and 9 of the Court of Appeal Rules which provides for the mode of exercise of the Right of Appeal. 

It was submitted that for an appeal to be ripe and to be heard, there must exist the record of appeal which includes the exhibits tendered. Learned counsel contended that in the absence of a competent or complete record of appeal no Appellant Brief can be filed and so the duty of filing one after 45 days would not arise.

That if this duty will not arise as there was no competent record and no brief in law; it meant that the Applicants right of appeal against his conviction has been damaged permanently by the Respondent. That means that the Applicant has been convicted but cannot appeal.

Learned Applicant's counsel submitted that his client did not intend to escape Justice hence his filing of a brief of argument on legal arguments i.e on law alone, notwithstanding the impediments and obstacles placed on his path.

That the Bulky nature of the judgment which alone stood at 496 pages with prolific references to the exhibits that could not be traced made it the more compelling that this court should exercise its jurisdiction and power/discretion in quashing the conviction. That stands without the opportunity or prospect of being set aside by a hearing on the merit. The cases of HAATRUP (W. A.) LTD VS. WELDING ENGINEERING CO. LTD (1996) 9 NWLR (Pt 470) page 92 at 98 - 99 and ABIODUN VS. A. G. FEDERATION (2007) 15 NWLR (Pt 105) pate 359 were cited in aid.

Learned counsel, further in submission reminded us that there was no contrary evidence challenging the content of the Appellant/Applicant's affidavit in support; and that once this court was satisfied, it should grant the application. 

As if on a moving train of an in exhaustible reasons justifying the grant of the application herein, learned counsel proceeded to submit that the alternative of a retrial will be a visitation against the Appellant/Applicant of a double jeopardy, in that he would be tried for the same offence twice over against the provisions of section 35(7) and 36 (9) of the 1999 Constitution, as Applicant had been tried and convicted before.

The case of CHIEF OF ARMY STAFF & ORS V. IYEN (2005) 6 NWLR (Pt.922) page 496 at 555 was referred to in support.

In reply, two days after the Applicant counsel's address, i.e on the 28th of June, 2012, Respondent's learned counsel in reply address submits that what the Applicant seeks by his application to quash the conviction without the hearing of the appeal was an attempt at seeking the determination of the appeal at an interlocutory stage. He argued that the relief or order sought does not determine the right of the parties with finality and was therefore an interlocutory order sought.

I shall pause to answer this poser before I proceed as it is a simple issue and deserves no waste of time.

What is a final order? A final order has been defined as an order that settles the dispute or contention between the parties as relating to the claim in issue.

See NIREKO INTERPRISES LTD VS. FIRST BANK. The claim in this appeal leading to the instant application is that the Applicant convict craves his liberty as a free citizen and wishes to be free of all penal incidences of the conviction which he had strenuously sought to challenge by his effort at securing the exhibits. The Respondent does not agree that the liberty be restored and the incidences of the conviction set aside by a quashing order.

An order made either way will not be an interlocutory order, but a final order which can only be appealable to the Supreme Court.

It would have determined the right of either party with finality. For this, I do not subscribe to the Respondent's counsel's view that the order sought was an interlocutory order. In any case, an Application may be brought anytime in the course of proceedings or trial including an appeal for a determination of a matter, which may end the appeal. And that is legitimate and may be a final decision and not an interlocutory decision. Submitted that there was no official letter from this court that the exhibits were lost or missing. That exhibit M from this court pre dated the confirmation of transfer from Calabar. That this court ought to have made an official statement with respect to the exhibits. Respondents counsel had referred us to the decision of this court (Enugu Division) in NIREKO ENTERPRISES LTD suing by its ATTORNEY IFEANYICHUKWU E. R. OKONKWO VS. FIRST BANK OF NIGERIA LTD. (2001) 1 NWLR Pt 695), page 437.

Having read the said case, I do not see it helpful to the Respondent's contention. Rather it strengthens the Applicant's position that their application is one that smarks of a final order being sought. There is no law that prohibits the bringing of an application in the interim that may result in a final decision. 

In the said case I shall produce the ratios thereof and the pith of the judgment to show that it does not serve the purpose of the Respondent but of the Applicant, as I had indicated.

At page 437 of the report it is recorded thus:- Held unanimously dismissing the application):

1. On problem of classifying decisions of courts as final or interlocutory---. 

4. On when a court decision is final:-

No order in an action will be final unless upon the application out of which it arises given in favour of the other party to the action would have determined the matter in dispute. In other words, a judgment or order would be final when, whichever way it went, it would finally determine the right of the parties in respect of the application.

The current application, is on the basis of the aforesaid authority, one capable of determining with finality the claims of the parties in the said application"

Learned counsel would appear to be citing the said authority out of context as it appertains only to final and interlocutory decisions and not interlocutory applications and whether they can be made.

It was further submitted that the case of HAASTRUP NIGERIA LTD, referred to by the Applicant counsel was inapplicable to the instant application as it was the judgment that was only missing whereas the judgment and the record of proceedings of this court are present. He agrees that the exhibits are the problem. Reiterate that the application would have been determined at the interlocutory stage, if the relief is granted vide the application. 

He finally urged that the application be struck out for incompetence and the appeal be heard on its merit. Replying on point of law, it, was argued by Applicant's counsel that where proper records have not been compiled, it means an appeal cannot be determined. That hearing argument would be an exercise in futility. That to keep the appeal on since 1999 with a view to giving the Respondent another opportunity will be wrong.

Counsel urged us to grant the application, as that was the only way that we can give effect to justice in a situation that hardship has been inflicted on the Applicant by the respondent; and that where the provision of any law is capable of two different interpretation, the one more favourable to the accused and which protects the rights and liberty of a person should be applied in his favour. 

I have read all the authorities cited and perused carefully the submissions of the learned counsel for the parties. I have also perused the entirety of the prolific affidavits and indeed flimped for a day through the 3 voluminous copies of the record of appeal.

In my view the simple issue here is, can this court now be seized of jurisdiction by the filing of an appeal appropriately thereto, against a conviction and sentence quash the conviction on the ground that the exhibits cannot be found and the record of appeal, therefore, being incomplete occasioning an incapacity and impossibility in the prosecution of an appeal lodged?

I think the starting point in my view is section 240 of the constitution and section 7(1) of the Decree No.62 of 1999. An appeal has rightly been lodged before this court. This court having been seized of the appeal shall only proceed upon the transmission of the records of appeal. Order 17 Rule 9 Court of Appeal Rules 2011 provides thus:-

The appeal not having been competently entered, the Respondent had the option of applying that the Notice of Appeal be struck out for want of prosecution. It did file such a motion but withdrew same and it was accordingly struck out. It cannot now reprobate by asking that the appeal be proceeded with.

See NIREKO ENTERPRISES LTD. VS. FIRST BAND Supra per UBAENO, JCA see also TOKUDE'S case. It had applied that the motion to strike out or dismiss appeal be not proceeded with but this was abandoned or he withdrew the application, rather. A party must be consistent in his case. He cannot approbate and reprobate, can't ask that appeal be off and to be on later.

I agree with the learned counsel for the applicant when he argued that he carried the burden of trying to compile the record, save the exhibits which were lost or not traced.

This is a criminal matter and by Order 17 Rule 2 of the Court of Appeal Rules the duty and responsibility of compiling and transmitting the record of appeal was that of the Respondent, that is to say, the Responsibility of the Registrar of the lower court. They averred that they have done so. From the affidavit, the exhibits got lost between the court of Appeal Calabar and Lagos, but most likely Lagos, Court of Appeal.

The affidavit evidence, uncontroverted is clear. The exhibits thereto corroborate same. I fail to understand what official letter is expected from the registry of this court to show that it received the exhibits and they are either lost on can't be traced. The solemn, oath in the affidavit with all the annexure thereto satisfies me that the exhibits cannot be traced. Condemnable it may be, but the issue in this application is whether this loss has not deprived the Applicant of his constitutional right to have his appeal against his conviction and sentence determined on its merit? 

It is the constitutional right of a convict to appeal as by law provided. It is also his constitutional right to be afforded all the opportunities and facilities for the presentation of his case or defence as the case may be since an Appeal is a continuation of the trial, see IWE VS. SCOA NIG. LTD & 2530 2000 FWLR, OREDOYIN VS. AROWOLA (1989) 4 NWLR (Pt.114) 172 at 211, BLACKS LAW DICTIONARY 6TH EDITION page 96.

The case of EKPEMUPOTO VS. EDREMODA 2009 8 NWLR 166, part 1142, which authority the learned Appellant's counsel made available to us is most apt in determining the contention that the Court of Appeal cannot determine this appeal on incomplete record as the exhibits are not included in the record.

The Appellant having contended that the judgment is against the weight of evidence, it will be impossible to so determine that ground without the exhibits. To proceed as sought by the Respondent will amount to hearing an appeal on incomplete records.

In EKPEMUPOLO (Supra), the apex Court per OGBUAAGU, JSC held thus: at page 195 G - H '-It is now firmly settled that it is the duty of an Appellate Court not to hear an appeal on incomplete records. See the cases of CHIEF OKOCHI & 2 ORS. VS. CHIEF ANIMKWOI & 2 ORS. (2003) 18 NWLR (Pt.851) 1; (2003) 2 SCNJ 260 at 217. This is because the records of proceedings binds the parties and the courts until the contrary is proved."

The absence of records or incomplete record which could be absence of exhibits herein renders every decision rendered with reference to same a nullity. It is for this reason that I adopt the view of OGBUAGU, JSC at page 198 paragraph F that it will amount to a miscarriage of justice and a nullity, if this court proceeds to hear the appeal and pronounce on the exhibits (which it must) when they are not before her. TABAI, JSC aptly states that a court must see the exhibits in a case before a decision thereon.

It must be understood that an appeal is by way of a rehearing; see Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, (now 2011 Rules) and the case of EDJEKPO & ORS VS. OSIA & ORS. Indeed this court in exercise of powers under section 17 of the Court of Appeal Act 2004, shall be entitled to exercise all the powers of the trial tribunal by looking at the exhibits. In OSHOBOJA VS. AMUDA (1992) 6 NWLR (Pt.250) 960, UWAIS (JSC as he then was) held at 708: "There is no doubt that section 16 has given the Court of Appeal amplitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of 1st instance and in the present case the jurisdiction of the High Court."

The Applicant/Convict herein was entitled to be afforded the right of access to all the facilities i.e recorded testimonies and (evidence exhibits etc) relating to the case to enable him pursue his appeal on the merit, as he had challenged the entirety of the decision, conviction and sentence inclusive.

It was uncontroverted that the entirety of the 3 volume record of appeal and the 495 page judgment made prolific reference of the 403 exhibits (not traced) and upon which there was no evidence as to their where about nor were they produced by the party responsible to transmit i.e the State Respondent herein. The presumption under section 149(1) (d) of the Evidence Act 2004 is that those exhibits do not exist or if they do exist, they will be prejudicial to the case of the Respondent. The averments of their (exhibits) loss, not been controverted, they are not only deemed admitted, but are indeed admitted. 

For their counsel agrees that "the only problem is that the exhibits are not available."

The Respondent's counsel had argued that the Applicant had not applied for the exhibits, being public documents and shown proof of refusal to produce certified true copy thereof, I should say that in criminal trial and prosecution or penal provisions, the provisions of any enactment capable of two interpretations would have it interpreted in favour of a person that might be adversely affected. 

The submission in that respect by the Appellant's counsel is the correct statement of the law.

Respondent had harped on the point that the application was incompetent. I do not see how. Order 17 Rule 2 of part III of the Rules of this court, 2011, allows for applications to be made by Appellant or Respondent or by a legal representative on his behalf orally or in writing.

Application having been brought in accordance to the Rules and for a relief it cannot be incompetent as it violates no Rules of practice or law known to me.

Order 17 Rule 7(1)(a) and Rule 9(1) provides for amongst other components of the record of appeal that 17 (9)(1)(f) - all documentary exhibits put in at the trial including depositions read in consequence of the absence of a witness; provided that in the cases of books of accounts or other documents of great length, extracts of the relevant portion thereof only shall be included.

The Respondent never said the exception was the case herein. I cannot find those exceptions in respect of the 403 exhibits in the 3 volumes of record of appeal transmitted.

Order 17 Rule 7(1) (b) would appear to have been satisfied by the Registrar of the Court below that tried the Convict/Appellant. The Applicant had no obligation in ensuring the transmission of the exhibits that must form part of the record of appeal. He had no legal obligation to provide or produce the facilities and the documentary evidence that had been led against him to exculpate himself from his conviction.

However where it would be oppressive and expose one to double jeopardy or be an exercise in futility, I think that the interest of justice demands that the judex, seized of the matter should rise to the demand of justice by making an appropriate order.

In the instant case, it would, in my contrite view, be a flagrant violation of the spirit and essence of section 240 of the Constitution 1999, to allow the conviction herein hang without a prospect of a determination Ad in fini tum, this appeal may lie unheard and the conviction and sentence stand undetermined in its challenged status in the absence of the exhibits that have been or may have been kept out of the way of justice to the direct detriment of the Applicant. 

Was the Applicant convicted and sentenced with a view not to allow the enjoyment of the fullness of the right of appeal, which subsists even up to the Supreme Court? This court cannot speculate as to whether it is the Agents of the Appellant that seek to stall the appeal for a benefit.

The Respondent's counsel had argued that the appeal be heard (?) If I may ask, upon what exhibits? Is the Applicant not entitled to a fair hearing? Is it not an over stated anxiom that it is better for 10 guilty persons to go free than a possible innocent man to be condemned?

The Applicant has been convicted. Is it not possible that with the exhibits and normal appellate trial, he may be set at liberty? What greater hardship has been shown by the Respondent to likely be suffered if the Applicant is set at liberty by a guashing order which is an order in furtherance of constitutionalism which we have enshrined in our constitution as a Nation?

We must pay the price for liberty even in our hiccups in adjudication. I have every reason to agree that to bring the Applicant upon a trial second time, even if the appeal were proceeded with, which I have indicated it cannot in fact and in law be, it would be subjecting him to double jeopardy. See IYEN'S case Supra. Having been convicted and sentenced, he cannot constitutionally be tried again for the same offence. In any case, the occasion for it has even been made impossible. Does he then carry the infamy of conviction, sentence and remain deprived of his right to a determination of possible innocence on appeal by an extra judicial erosion of such a right? 

This case is a peculiar and unique one that calls for the exercise of the invocation of section 6(6)(a) of the Constitution 1999 i.e the invocation of the inherent jurisdiction of a court of law to do justice as the jurisdiction of a court of record shall include powers conferred by statute on any law, regulations and all such inherent powers of a court law to do justice.

The judex shall do justice even when no law specifically provides for it and so long as an act is not specifically prohibited, it is the duty and within the powers and duties of the courts i.e judicature to do justice.

This is such an instance. If, as in the HANSTRUP case and the other cases cited by the Applicant's counsel, a missing judgment constituted the reason for the quashing of the judgment I do not see why it cannot be in this case where the absence of the exhibits have made it impossible to argue the appeal and upon no fault of the Applicant, but of the Agencies of the State.

To proceed with the appeal as sought, without the exhibits in the circumstances of this case would in my view amount to a caricature or creating a make do or make believe environment of fair hearing. It will be in violation of the Constitution see PAM VS. MOHAMMED (2008) 161 LRCN 216 per NIKI TOBI, JSC.

Wherein he stated that judgments should not be given on technical grounds. The hearing of an appeal should not also proceed on technical grounds simply because it was filed.

Indeed as ALAGOA ACTING CJ (as he then was stated in one case PJC/222/73 of 23/3/73 - MINERE AKIRI VS. RM IWOWARIN the courts are the watch dogs of these rights and the sanctuary of the oppressed and will spare no pains in tracking down the arbitrary use of power where such cases are brought before it.

An arbitrary use or non use of the power to transmit exhibits is shown. This last line of defence in aid of the helpless Applicant herein ought to rise to the occasion.

Should this court resort rather to making a vain order by refusing the application on the flimsy ground that the application was interlocutory and would not determine the complaint on its merit (which I have debunked) and to order for the hearing of an appeal that would be impossible of executing on equal terms of justice between the parties? The apex court in CHIEF OF AIR STAFF VS. IYEN supra stated thus:-

"It is a fundamental principle of law that courts of law, like nature, cannot act in vain. They must act for a purpose and for a purpose only. In other words, courts of law cannot make an order in vain. Let me show why an order of retrial if made will be in vain.

By virtue of section 103(1) of Decree No.105 of 1993 as amended in order to sustain the charges in a civil court, the Appellants must prove the following ingredients:-

(a) That the Respondent is subject to service law

(b) That the Respondent was involved in a conduct, and

(c) That the conduct of the Respondent was prejudicial to good order and service discipline. That was the decision in AKONO vs. THE NIGERIAN ARMY (2000) 14 NWLR (pt 637) 138 at 331.

In view of the fact that the Respondent was retired from service on 27th April, 1996, the Appellant cannot prove their case, even if a retrial is ordered."

Indeed on March 5th, 2012, the apex court again reiterated in the case of SENATOR JOEL DANIAMI IKENYA, HON ISA ALU AJIYA, ACTION CONGRESS OF NIGERIA (ACN) VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS APPEAL NO. C. 13/2012, (2012) 3 SC page 1 at 14 per MAHMUD, JSC in his lead judgment thus:-

"As for the relief of rehearing of the appeal by a different panel of the Court of Appeal sought by the Appellants. In this court that relief cannot be granted because the 60 days under subsection 7 of section 285 of the Constitution of the Federal Republic of Nigeria, 1999 within which the Appellant's appeal must be heard and determined had already lapsed as the judgment of the Election Tribunal giving rise to the appeal was delivered since 10th November, 2011. It will therefore be a futile exercise, in my view, granting that relief."

Applying this principle of law to the instant application and the view of the Respondent that the appeal be proceeded with, I hold that for the reasons earlier set out in this Ruling, it will be a futile exercise, which this court cannot embark upon, as there can be no head way.

I should at this closing page state that surprisingly; the Respondents learned counsel forwarded a supplementary case law authority on 2nd July, 2012 i.e the case of AREWA PAPER CONVERTERS LTD VS. NDIC (NIG) UNIVERSAL BANK LTD (2006) 15 NWLR (Pt.1002) page 404, at 442 - 442 on the point that the Court of Appeal has no appellate jurisdiction over the Failed Banks Tribunal or the special Appeal Tribunal set up under the Failed Banks Decree No.18 of 1994.

While it is true and correct that before the repeal of the said law, there was no such power, there now exist such a power by the amendment of 1999. In any event the case referred to would only appear to decide the limited or specific question relating to jurisdiction or competence as may be challenged and in particular the challenge to a procedural vires as may be raised.

That authority does not with respect derogate from the jurisdiction of this court and over the Failed Banks Tribunal final decision and in substitution of the Erstwhile special appeal tribunal. Where the special appeal tribunal had as a final court rendered a decision before its abrogation, certainly this court would no longer have jurisdiction. It stands to reason that the decision referred to is clearly inapplicable to the facts of this case.

If I may ask, if this court has no jurisdiction, why does the Respondent insist that it hears an appeal against the Tribunal's decision? I fail to understand the oppressive desperation!

Accordingly, I hold that the only fair and just decision in the circumstance is one for an order quashing though regrettably, the said conviction, the subject of this aborted appeal as ultimate justice in mysterious or difficult cases is for the lord.

Accordingly, for the little contribution herein, and the more elaborate reasoning of my lord OGUNWUMIJU, JCA in the leading Ruling, which I subscribe to, in part, I do concur and agree that the Application herein is meritorious as relating the quashing order sought.

It succeeds. The subsisting relief No.1 is granted as prayed. I, however, abide by the consequential order rendered in the lead judgment.

     Appearances       

A. A. ADEGBONMIRE WITH HIM TOSIN IYAYI (MRS.) AND STEVEN NWOYE

For the Appelants

       

MRS. S. I. AGOHA

For the Respondents