ENGINEERING ENTERPRISE OF NIGER CONTRACTOR CO. OF NIGERIA v. THE ATTORNEY-GENERAL OF KADUNA STATE (SC. 2/1986) [1987] 10 (08 May 1987);

ENGINEERING ENTERPRISE OF NIGER CONTRACTOR CO. OF NIGERIA (APPELLANT)

THE ATTORNEY-GENERAL OF KADUNA STATE (RESPONDENT)

(1987) All N.L.R. 396

Division: Supreme Court of Nigeria

Date of Judgment: 8th may, 1987

Case Number: (SC. 2/1986)

Before: Bello, Eso, Aniagolu, Kazeem, Kawu, Oputa, Belgore, Jj.S.C

The matter in dispute was a piece of land in Kaduna South which was the Subject of a grant made by the Government of Kaduna State to the Appellant under a certificate of Occupancy for 99 years. Between 1976 and 1978 the UTC acting in accordance with an arrangement between it and the plaintiff commenced development of the land to the tune of well over N700,000. The development being made on the land, was being carried on under the progressive supervision and approval of the officials of the Ministry of Lands and Survey, who were servants and agents of the Government of Kaduna State. By the revocation order of 13th February 1979. The Military Administrator of Kaduna State. By the revocation order of 13th February 1979. The Military Administrator of Kaduna State revoked the grant on the purported ground that the plaintiff had failed to comply with the conditions of the grant. Appellant alleged that for the same officials to turn round to revoke the Certificate of Occupancy Constituted a fraudulent encumbrance on the grant. Consequently, the plaintiff instituted a suit in the High Court of Kaduna State. The High Court dismissed the plaintiff's claim. The plaintiff was not satisfied with decision and so appealed. On appeal, the judgment of the High Court could not be produced because it was missing. On that account the plaintiff was unable to prove before the Court of Appeal, as the law required him to do the decision of the High Court Judge.

Before the Supreme Court, the issue for determination is what is the proper order for the Court of Appeal to make in the unique situation where the High Court carelessly lost its own judgment and the appellant is not in the least blameworthy for the loss of the judgment in question.

HELD:

(1) Where the Appellant cannot produce the records of appeal on which his appeal is based, the correct order to make is to strike out the appeal until the Appellant can produce the records of appeal.

(2) A judgment of a Court of Law is presumed to be valid until it is proved by a person challenging its validity to be wrong. When a judgment is delivered in a lower Court here the High Court it is presumed on appeal to be correct until the contrary is shown. For the appellant to discharge the burden, the judgment appealed against or its certified copy must be produced before the Court of Appeal together with grounds of appeal showing the decision to be wrong. Supreme Court Practise 1979 volume 1 page 885.

(3) The rules of practice for the production of record of appeal prescribed by the Court of Appeal Rules 1981 to our Court of Appeal is not the same as that of England. Under our rule, it is not the duty of the appellant to produce the judgment. The duty is imposed on the Registrar of the Court below.

(4) By Order 3, rules 10 and 13 of the Court of Appeal Rules, the law is quite clean. It states that once an appellant has deposited the money for making up and forwarding the record, he has performed his duty. The plaintiff having deposited with the Registrar of the High Court of Kaduna State the sum of N47.40 for filing, heaving, service and records had done his duty. It was the registrar of the High Court who failed to discharge his duty of transmitting the judgment to the Registrar of the Court of Appeal because the judgment was missing.

(5) In the exercise of its judicial powers, a Court of law should adhere to constitutionality. It should not condone the commission by a state of Constitutional wrong nor should it be an accessory after the fact to the Commission of unconstitutionality. The Court of Appeal was wrong in making an order Striking out the plaintiff's claim as that was tantamount to condonation by the Court of Appeal of the Constitutional wrong committed by the Kaduna State.

(6) The plaintiff should be given another opportunity to start all over, so that his Constitutional rights of appeal, which he was deprived of, may be restored if the result of the hearing de-novo so warrants. Judgment of the Court of Appeal set aside. Case remitted to the High Court for hearing de-novo.

APPEAL allowed

Cases Referred to

1. Agbonmagbe Bank Ltd. v. C.F.A.O. (1961) 1 All N.L.R. (Part 1) 170 at 176

2. Ajala v. Nigeria General Motors Ltd. FCA/L/58/81

3. A.M.O. Akinsanya v. U.B.A. Ltd. S.C. 95/1985

4. Attorney-General of Bendel State v. U.B.A. Ltd. S.C. 66/1985

5. Bello v. Attorney-General of Oyo State (1986) 5 N.W.L.R. 828

6. Bronik Motors Ltd. v. Wema Bank Ltd. S.C. 110/82

7. Chief Akinmolarinde v. Yeyebinu & Ors. (1975) N.M.L.R. 45

8. Chief Imam Y.P.O. Shodeinde v. The Registered Trustees of the Ahmadiya Movement on Islam S.C. 64/82

9. Dr Uwechia v. Obi & Ors. (1973) N.M.L.R. 309

10. Ezekiel Emenimaya & Ors. v. Okorji S.C. 235/84

11. Ex Parte Firth, in re Cowburn (1988) 19 Ch.D. 419

12. Ibiyemi Oduye v. Nigeria Airways Ltd. S.C. 135/85

13. Ifezue v. Mbadugha (1984) 1 S.C.N.L.R. 429 at p. 473

14. Metropitan Properties Co (F.G.C.) Ltd. v. Lannon & Ors. (1969) 1 Q.B. 577 at 599

15. Obimalu & Ors. v. Nwosu & Ors. (1973) N.M.L.R. 307

16. Odiase v. Agho (1972) 1 All N.L.R. (Part 1)

17. Ohiaha Akpapuna v. Oha Nzeka 11 S.C. 85/82

18. Oloyo v. Alegbe S.C. 94/1982

19. Paul Unongo v. Aper Aku S.C. 95/85

20. The Queen v. Trustees of the County of London & Ors. (1893) L.R. 2 Q.B. 492

21. Trambirdge Co. Ltd. v. Survey International Ltd. S.C. 17/85

Statute Referred to

1. The Constitution of the Federal Republic of Nigeria 1979

2. Court of Appeal Rules 1981

3. Supreme Court Practise 1979, Volume 1

Bello. C.J.N. The material facts and the circumstances for the determination of this appeal are simple and undisputed. In 1971, the Military Governor of Kaduna State granted to the Plaintiff the right of occupancy under the Certificate of Occupancy No. 14438 over a piece of land situated in Kaduna South for a period of 99 years. Between 1976 and 1978 the U.T.C., acting in accordance with an arrangement between it and the Plaintiff, developed the land to the tune of well over N700,000. By the revocation order of 13th February 1979, the Military Administrator of Kaduna State revoked the grant on the purported ground that the Plaintiff had failed to comply with the conditions of the grant.

Consequently, the Plaintiff instituted a suit in the High Court of Kaduna State. The writ reads:

"The Plaintiff's claim against the defendant is for DECLARATION that the purported revocation of the plaintiff's right of occupancy No N.C. 14438 over a piece of land at No 5 Kachia Road, Kaduna South KCT which has been developed with well over N700,000 with consent of the officials of the State Ministry of Lands and Surveys is null and void on the grounds that the said Government officials as servants and or agents of the Government are guilty of fraud and their fraud vitiates the purported revocation of the said right of occupancy No. NC. 14438 by the Military Administrator on 13th day of February 1979."

After having heard the evidence adduced by the parties, Abdullahi J., as he was then, delivered judgment on 26th October 1979 dismissing the Plaintiff's was not satisfied with the decision of the High Court and so he appealed to the Court of Appeal on the following grounds:

"1. The decision of the learned Judge is against the weight of evidence.

2. The learned trial Judge misdirected himself in law and in fact by not holden that fraud vitiated the revocation order.

PARTICULARS OF MISDIRECTION/ERROR

(a) There was clear evidence that it was the Permanent Secretary who advised the Plaintiff and the U.T.C. as to when to submit the application for statutory consent who turned round to use the non-receipt of the consent to recommend the revocation of the right of occupancy.

(b) Exhibits 7C and 8 are clear.

3. The learned trial Judge misdirected himself both in law and in fact by holding that the plaintiff/appellant told a lie as to the whereabout of the original Certificate of Occupancy.

PARTICULARS OF MISDIRECTION

(a) Parties are bound by their pleadings

(b) By the defendant's non-denial that the Certificate of Occupancy was with the Government and the defendant's consent that Exhibit 2 be admitted after a notice to produce served on defendant's Counsel on 24/9/79 it was incompetent of the defendant to produce evidence that the Certificate of Occupancy was with the U.T.C.

(d) The true relationship between the plaintiff and the U.T.C. Ltd. was misconstrued.

4. The learned trial Judge erred in law in admitting Exhibits 14, 14A-14J when Exhibit 14 was not pleaded and did not come from proper custody."

The judgment of the High Court would not be produced in the Court of Appeal because it was missing and all searches for it were in vain and abortive. On that account the Plaintiff was unable to prove before the Court of Appeal, as the law required him to do, the decision of Abdullahi J to be wrong.

For the foregoing reasons, following the decisions of this Court in Dr Uwechia v. Obi & Ors. (1973) N.M.L.R. 309 and Obiamalu & Ors. v. Nwosu & Ors. (1973) N.M.L.R. 307, in a majority of two to one, the Court of Appeal held that where the Appellant cannot produce the records of appeal on which his appeal is based, the correct order to make is to strike out the appeal until the Appellant can produce the records of appeal. Accordingly, the Court of Appeal ordered as follows:

"1. This appeal of the Appellant to this Court against the judgment of Kaduna State High Court in Suit KDH/77/79 delivered on 26th of October, 1979 is hereby struck out.

2. The Appellant would be at liberty to apply for the appeal to be relisted if and whenever he is ready and willing to prosecute the said appeal."

The Plaintiff has further appealed to this Court against the decision of the Court of Appeal on one ground of law only, that is:

"The learned Justices of the Court of Appeal (U. Maidama and B.O. Babalakin JJ.C.A.) erred and misdirected themselves in law in applying the Supreme Court decisions in Dr Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308 and Obiamalu & Ors. v. Nwosu & Ors. (1973) 1 N.M.L.R. 307 whereas the facts in those cases were clearly distinguishable from those before them and on all fours with those in the Western State of Nigeria Court of Appeal decision in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) 1 N.M.L.R. 45 as ably demonstrated by the Minority judgment of the Hon Justice E.O.I. Akpata, J.C.A.

PARTICULARS OF ERROR AND MISDIRECTION IN LAW

i. In the 2 Supreme Court decisions the appellants were at some fault whereas in the case now on appeal the appellant was blameless as in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. supra.

ii. In the 2 Supreme Court decisions the possibility of finding the records were not too remote whereas in the case now on appeal the chances of ever finding the judgment of the trial court were too remote.

iii. In the 2 Supreme Court decisions the lower courts were blameless whereas in case now in appeal the trial court had violated its constitutional duty under section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979."

In his Brief and oral submission before us, learned Counsel for the Plaintiff simply reiterated his ground of appeal and urged us to order a retrial having regard to the circumstances of the case.

Responding in her brilliant and well articulated submission, the learned Attorney-General of Kaduna State, Mrs Donli, while expressing sympathy with the Plaintiff's case and her inclination to concede to a retrial, nevertheless argued that having regard to the decisions of this Court in Dr Uwechia v. Obi (supra) and Obiamalu v. Nwosu (supra) the Court of Appeal was right in striking out the Plaintiff's claim. She contended that it is a cardinal principle of practice that it is the duty of the appellant to ensure that the records of proceedings or the judgment which he proposes to challenged in an appeal court are made available to that court. If those records are not available, she submitted, the respondent is ex debito justiciae entitled to have the appeal proceedings terminated.

However, the learned Attorney-General drew our attention to the decision of the defunct Western State Court of Appeal in Chief Akinmolarinle v. Yeyebinu (1975) N.M.L.R. 45 where that court ordered a retrial because, as in the case in hand, the judgment of the trial court was missing and the appellant was on that account unable to prosecute his appeal.

The unreported case of Ajala v. Nigeria General Motors Ltd. FCA/L/58/81, delivered on 1st December 1981, may also be mentioned wherein the Court of Appeal ordered hearing de novo on the ground that the manuscript of the judgment of the trial court was missing.

Now, the law is well settled that a judgment of a court of law is presumed to be valid until it is proved by a person challenging its validity to be wrong. "When a judgment is delivered in a lower court, here the High Court, it is presumed on appeal to be correct until the contrary is shown" per Lewis J.S.C. delivering the judgment of this Court in Odiase v. Agho (1972) 1 All N.L.R. (Part 1) 170 at 176. And this Court approaches an appeal on the principle that the appellant must show that the decision was wrong. Agbonmagbe Bank v. C.F.A.O. (1966) 1 All N.L.R. 140 at 143.

For the appellant to discharge the burden, the judgment appealed against or its certified copy must be produced before the Court of Appeal together with grounds of appeal showing the decision to be wrong. In England, Order 59 rule 5(1) of the Rules of the Supreme Court 1965 requires the appellant to produce the judgment to the proper officer of the Court of Appeal. The rule imposes a mandatory duty on the appellant to produce the judgment: see the Supreme Court Practice 1979 Volume 1 p.885.

It appears the cases of Obiamalu v. Nwosu (Supra) and Uwechia v. Obi (Supra) were decided in accordance with the rule of practice of the Court of Appeal of England. This may be inferred from the judgment of the Court in Uwechia v. Obi (Supra) at p.311 where Coker J.S.C. said:

"We think it proper at this juncture to point out that it is the duty of the appellant to ensure that the records or the notes which he proposes to challenge in the Supreme Court are made available the respondent is ex debito justiciae entitled to have the appeal proceedings terminated."

It is pertinent to observe that the rule of practice for the production of record of appeal prescribed by the Court of Appeal Rules 1981 to our Court of Appeal is not the same as that of England. Under our rule it is not the duty of the appellant to produce the judgment. The duty is imposed on the Registrar of the Court below. Order 3 rules 10 and 13 of the Court of Appeal Rules read:

"10. The appellant shall within such time as the Registrar of the court below directs deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal...

13. The Registrar of the court below shall transmit the record... to the Registrar of the court."

That being the case, the decision of this Court in Dr Uwechia v. Obi (Supra) and Obiamalu v. Nwosu (Supra) are not directly relevant to the determination of the case on appeal because both cases were decided on a rule of practice which is not in pari materia with our rule of court.

Our law is quite clear that once an appellant has deposited the money for making up and forwarding the record, he has performed his duty. The record shows that the Plaintiff deposited with the Registrar of the High Court of Kaduna State the sum of N47.40 for filing, hearing, service and records. He had done his duty. It was the Registrar of the High Court who failed to discharge his duty of transmitting the judgment to the Registrar of the Court of Appeal because the judgment was missing.

Now, by virtue of section 220 of the Constitution of the Federal Republic of Nigeria 1979 the Plaintiff has the right to prosecute his appeal in the Court of Appeal and he also has the right to have the appeal determined on the merits by that Court. By inadvertence, carelessness or negligence through its judicial arm, to wit the High Court of the State, the Kaduna State Government deprived the Plaintiff of his constitutional right under the said section by causing the loss of the judgment. The Plaintiff could not prosecute his appeal and the Court of Appeal could not determine his appeal on the merits.

In Bello v. Attorney-General of Oyo State (1986) 5 N.W.L.R. 828 this Court held that deprivation by a State of an appellant's right to prosecute his appeal in the Court of Appeal and to have the appeal determined on the merits by that Court was unconstitutional and legally wrongful.

In the exercise of its judicial powers a court of law should adhere to constitutionality. It should not condone the commission by a State of a constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality. The Court of Appeal, in deciding whether to strike out the Plaintiff's appeal or to order a retrial, ought to have been guided by the principle of adhering to constitutionality.

It seems to me that striking out the Plaintiff's claim, as the Court of Appeal did, was tantamount to the condonation by the Court of Appeal of the constitutional wrong committed by the Kaduna State. That Court was therefore wrong in making the order striking out the claim.

In my considered view, the only order that may be consistent with the Plaintiff's constitutional rights of appeal is to give him another opportunity to start all over so that his rights of appeal, which he was deprived of, may be restored if the result of the hearing de novo so warrants.

For the foregoing reasons, the decision of Abdullahi J. delivered on 26th October 1979 and the judgment of the Court of Appeal are set aside. The case shall be remitted to the High Court for hearing de novo.

Costs shall abide the result of the hearing de novo. Eso, J.S.C. In the Kaduna State High Court, holding at Kaduna the Plaintiff, who is the Appellant in this Court and who would hereinafter be referred to as the Appellant filed an action for-

"A declaration that the purported revocation of the Plaintiff's Right of Occupancy No. N.C. 14438 over a piece of land at No.5 Kachia Road Kaduna South which had been developed with well over seven hundred thousand Naira (N700,000.00) with the consent of the Officials of the Kaduna State Ministry of Lands and Surveys was null and void on the ground that the said Government Officials of the Kaduna State Ministry of Lands and Surveys was null and void on the ground that the said Government officials as servants and/or agents of Government were guilty of fraud and that the fraud violated the purported revocation of the said Right of Occupancy by the Military Administrator on 13th February, 1979."

As the facts of the case have been so well set out in the judgment of my learned brother, Bello C.J.N.I will only refer to such facts as would be necessary for my own contribution in the concurring judgment. The matter itself has raised an important issue of what the justice of matter would be on appeal when the judgment appealed against was missing whereas the loss or non-appearance of the judgment is not due to the fault of the appellant. In other words, the Court of Appeal has a record placed before it which, for the purpose of the appeal, is not complete.

Hearing in the High Court having been concluded, judgment was delivered on 26th October, 1979 and the claim of the Appellant was dismissed. He then appealed to the Court of Appeal and it was that stage that it was discovered that the judgment of the Trial Court, Umaru Abdullahi J. was no where to be found. It is interesting to refer to a portion of the Brief filed by the learned Counsel for the Appellant Mr Ijaodola. It reads-

"There is no doubt that this Honourable Court (Court of Appeal) would have allowed the appeal and given judgment in favour of the plaintiff/appellant if the judgment of the Honourable Justice Umaru Abdullahi (of the High Court of Justice of the Kaduna State, as he then was) were available in view of the four grounds of appeal lodged on 13/11/79"

It is strange that a learned Counsel of Mr Ijaodola's seniority at the Bar should be so dogmatic while filing a brief. It is elementary that the best a counsel could do is to make a submission and leave it for the Court to decide the point and not to pontificate in a demagogic, manner of the certainty of his cause born out by his grounds of appeal.

This, however, is by the way. What happened after the Briefs filed by both sides was for learned Counsel to request for a full court sitting, for as he submitted, the appeal raised "a novel issue." Though the Court acceded to counsel's request, and adjourned the matter till 28th March 1985, obviously for a full court hearing, it was an ordinary panel (Wali, Akpata and Babalakin JJ.C.A.) that heard the appeal. In his lead judgment, Babalakin, J.C.A. referred to the decision of this Court in Dr Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308at pp. 311-312 and the decision of the defunct Western State Court of Appeal in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) 1 N.M.L.R. 45 at p. 50 which the learned Attorney-General Mrs Donli brought to the notice of the Court. There was also the case of Obiamala & Ors. v. Nwosu (1973) 1 N.M.L.R. 307 a decision of this Court.

After a full discussion of the authorities, the Court of Appeal finally held-

"Mr Ijaodola learned Counsel for the Appellant tried to draw out a distinction between the present case on appeal and the above two cases decided by the Supreme Court by stating that in those two cases it was records of proceedings that were missing, Whilst in the present case it is only the judgment that is missing. The pertinent question to answer is: Can learned Counsel proceed to argue this appeal without the judgment in this case? The obvious answer is that he certainly cannot. The learned Counsel has therefore made a distinction without a difference."

Learned counsel for the Appellant further prayed that this case be ordered to be retried de novo at the High Court of Kaduna State in the circumstances of this case.

His application would appear to be supported by the decision of Western State of Nigeria Court of Appeal, a court obviously junior in hierarchy to the Supreme Court. (The Court has since been abolished). It was in the case of Akinmolarinle & Ors. v. Yeyebinu & Anor. (1975) 1 N.M.L.R. 45, an authority provided by the learned Attorney-General who appeared for the Respondent.

The facts of the case are:

"The plaintiffs had sued the defendants in the High Court, Ondo claiming damages for trespass, possession and an injunction. Hearing was concluded on 9th December, 1971 but judgment was not delivered until 30th March 1973. The plaintiffs' claims were dismissed. The plaintiffs appealed. When the record of appeal came to be compiled the judgment was not available to be included in the record-presumably lost. The record was transmitted to the Court of Appeal without the judgment.

HELD:

(1) 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.

(2) It is desirable that when a case turns principally upon questions of fact, a court of first instance, which has to make these findings of fact, should do so as quickly as possible after the case.

With greatest respect to that court the order of retrial made in that case is fraught with difficulties. The court did not set aside the lost judgment before ordering a retrial. What will happen if after the rehearing ordered is completed and judgment is given in the retried case the lost judgment is discovered or re-surfaced and further, perhaps by accident the two judgments are at variance with each other? The position is that there will be confusion. Even if the judgment of the retrial is the same as the lost judgment the confusions is still there.

One does not really know the reason which motivated the Western State Court of Appeal to take this line of reasoning particularly when the case of Dr Uwechia above was cited before that court. One may suggest that if the case went on appeal to the Supreme Court, the likelihood of the reversal of the decision is not remote in view of the decisions in the two cases referred to above already decided by the Supreme Court.

I am of the view that the better line of action is to strike out this appeal because it is time honoured practice that it is the duty of the Appellant to bring before the Appellate Court the materials on which he desires his appeal to be heard. This is the consistent decision of the Supreme Court."

The Court then struck out the appeal and ordered that the Appellant would be at liberty to apply for the appeal to be relisted if and whenever he is ready and willing to prosecute the said appeal. Maidama J.C.A. agreed with the decision and judgment read by Babalakin J.C.A.

E.O.I. Akpata dissented in a full and well considered judgment. The learned Justice of the Court of Appeal tried to distinguish the two Supreme Court judgments from the instant case and found himself, as he said, in agreement "with the decision of the then Western State Court of Appeal in the case of Chief Aknmolarinle and Ors. v. Yeyebinu & Anor." supra. he concluded-

"It would be sheer injustice, in my view, if by the default or carelessness of a Court of justice a judgment is missing and the appellant is prevented from having its decision tested in a court of appeal or having the case tried again. To say the least, such a situation would be open to abuses. What one should stress, in my view, is not the dilemma that would arise should the missing judgment be found after an order of retrial has been made, but the irredeemable injustice that would occur should the appeal be struck out, and the judgment never found. It is now about five years and seven months since the judgment which was in the custody of the High Court Kaduna got missing.

It is in this sense I find myself in agreement with the decision of the then Western State Court of Appeal in the case of Chief Akinmolarinle & Ors. v. Yeyebinu and Anor. (1957) 1 N.M.L.R. 45 to which, in the best tradition of the Bar the learned Attorney-General referred us. The facts of that case are similar to facts of the case in hand.

By Section 258 of the Constitution 'Every court established under the Constitution shall deliver its decision ... and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.' If this section of the Constitution had been complied with the fact of the court's copy of the judgment being missing would not have created the present impasse. It is the more reason there should be retrial."

The Appellant has appealed to this Court from the majority decision of the Court of Appeal relying on one ground of appeal which I do not intend to set out having been copiously set out in the judgment of my learned brother the Chief Justice of Nigeria.

There are Briefs filed. I did comment earlier on the Brief filed by the Appellants' counsel Mr Ijaodola in the Court of Appeal. I find my self painfully constrained to refer to what he has termed "Appellant's Brief of Argument" in this Court. Indeed it is so bewildering that such a Brief should be filed any lawyer in this Court in such a matter of this nature that has invited a full lead judgment and a fully well considered dissenting judgment, again after the lead judgment has commended the maturity in advocacy displayed by the learned Attorney-General in the case before the Court of Appeal, that I think it right to set out the Brief in this judgment as a great example of what a Brief under the Supreme Court Rules or the Court of Appeal Rules should never be. The Brief in full reads-

"BETWEEN

Engineering Enterprise of Niger Contractor Co. of Nigeria

Appellant

AND

The Attorney General of Kaduna State

Respondent

Appellant's brief of argument: 06R 5(1) S.C.R.1985

There is only one issue for determination in this appeal; namely, what is the proper order for the Court of Appeal to make in the unique situation where the High Court carelessly lost its own judgment and the appellant is not in the least blameworthy for the loss of the judgment in question?

ANSWER

It is humbly submitted, my Lords, that the minority judgment of the Court of Appeal is much more preferable than the majority decision.

It is to be noted, my Lords, that the High Court was completely to blame for its failure to comply with the provision under section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979, and the unfortunate loss of its judgment.

The majority decision will lead to a disastrous position where a court which has done a gross injustice to the losing party will intentionally 'lose' its judgment so as to prevent the loser from exercising its undaunted constitutional right of appeal and thereby cause a permanent injury to the loser. That position is indefensible and should not be allowed by the Supreme Court of Nigeria! In other words, it is our humble submission that the facts of the present case are clearly distinguishable from those in the Supreme Court decisions in Dr Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308 and Obiamalu & Ors. V. Nwosu & Ors.(1973) 1 N.M.L.R. 307 and are on all fours with those in the Western State of Nigeria Court of Appeal Decision in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) 1 N.M.L.R. 45.

SUMMARY

In conclusion, it is humbly submitted, my Lords, that the minority decision that a retrial order be made so that a judge of Kaduna State High Court might re-hear the case is superior and preferable to the majority decision which permanently shuts the gates of justice to the losing party who was not responsible for the loss of the trial court's judgment.

Authorities to rely on: 06R 7, S.C.R. 1985

i. Dr Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308

ii. Obiamalu & Ors. v., Nwosu & Ors. (1973) 1 N.M.L.R. 307

iii. Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) 1 N.M.L.R. 45.

Dated this 2nd day of January, 1986."

It is to be noted that all the Brief has said is to reproduce just a little portion of the dissenting judgment! With utmost respect to learned Counsel and without meaning any offence there is a serious misconception on his part as to the reasons for the filing and presentation of Briefs to the Court. It is to be noted that the innovation of filing Briefs of Argument was introduced in 1977 by the Supreme Court Rules 1977. Before then there was no filing of Briefs. Counsel came to Court to present their oral arguments. This was found to be tedious and it did inhibit preparations of cases by opposing counsel, and research by the Court, prior to oral submissions, which are to be made before it. And so, the system of brief filing was introduced by Order 9 and in particular Rules 3, 4 and 5. These Rules, after the revocation of the 1977 Rules have now been replaced almost ipssisima verba in Order 6 Rules 5,6 and 7 of the Supreme Court Rules, 1985 which are now the current Rules. The Rules require that the Brief so filed by the party-

(a) shall be a succinct statement of his argument in the appeal

(b) shall contain the issues arising in the appeal.

Any invitation to the Court to depart from one of its own decisions shall be clearly stated in a separate paragraph in the Brief. A special attention shall be drawn to this.

Briefs are not written merely for the purpose of summarising the judgment of the lower court. Pausing here for a moment, all Mr Ijaodola has done, was with respect, to have summarised the dissenting judgment of the Court of Appeal. And nothing more!

Brief writing is now ten years old, and learned Counsel who seek audience in the Supreme Court or even in the Court of Appeal should by now be fully versed in the art. An excellent book on the subject has been produced by a learned Justice of the Court of Appeal-Nnaemeka-Agu, J.C.A. titled, "Brief Writing for the Court of Appeal and The Supreme Court," and anyone who has read that book should be knowledgeable enough to write a good Brief for this Court. But even then, and apart from this, many learned Counsel have produced in this Court such excellent Briefs, in so many celebrated cases that all a counsel has to do is to read one or the other of these very many excellent productions. Without being exhaustive, I shall refer to a few, very few indeed for the guidance of counsel-

1. Ohiaha Akpapuna v. Oha Nzeka II S.C. 85/82

2. Chief Imam Y.P.O. Shodeinde v. The Registered Trustees of the Ahmadiya Movement on Islam (1983) N.S.C.C. 523.

3. Bronik Motors Ltd. v. Wema Bank Ltd. S.C. 110/82

4. Paul Unongo v. Aper (1983) N.S.C.C. 563.

5. Olovo v. Alegbe S.C. 94/1982

6. Transbridge Coy Ltd. v. Survey International Ltd. (1986) 2 N.S.C.C. 1084.

7. A.M.O. Akinsdanya v. U.B.A. Ltd. S.C. 95/1985

8. Attorney-General of Bendel State v. U.B.A. Ltd. S.C. 66/1985

9. Ezekiel Emenimaya & Ors. v. Okorji S.C. 235/84

10. Ibiyemi Oduye v. Nigeria Airways Ltd. (1987) 1 N.S.C.C. 521.

There is nothing in Brief Writing that anyone intends to learn that could not be found in these cases and many more. Learned counsel in the Briefs state-

(a) Introduction (which sets out the background);

(b) Issues in the Court of Appeal;

(d) Arguments and references to in depth authorities pro and con on the issues;

(e) Conclusion specifying the reasons why this Court should find for the Appellant or the Respondent as the case may be;

(f) Authorities to be relied upon in course of arguments.

Briefs are meant to assist in the administration of justice by making the work of both counsel and course simpler, once the matter has got to the oral hearing state. It is to promote justice. Sometimes, in the court of writing a brief the learned Counsel involved in the case sees the futility of his course. The courts gain immense assistance from excellent briefs when it gets to the stage of the court undertaking research into the matter before it.

In the instant appeal, this is what the Brief filed by the Attorney-General of Kaduna State has done and this is what, if I may respectfully state, what the Brief filed by Mr Ijaodola has failed to do. In a most admirable manner, consistent with the tradition of the Bar, the learned Attorney-General, Mrs Donli, has presented the two sides to this Court with brilliant clarity.

I will now go back to the issues arising in this appeal. I will deal with the authorities already decided by this Court. In Dr Uwechia v. Obi & Ors. (1973) N.M.L.R. 309 what, I think was paramount in the mind of the Court was the interest of justice. Coker J.S.C. was worried concerning the nature of the order to make. The Court had

"regard to the interest of both parties"

That is both parties to the case. In other words justice must be done to the two parties in a case. Uwechia's case indeed provides a fundamental for the Courts' consideration of justice. The plaintiff succeeded in the trial Court in a claim for declaration of title. The Court declared title to be in him. But then, the Defendant exercising his legitimate rights of appeal, appealed to the Supreme Court. [There was no intermediate Court of Appeal at the time]. Having filed his notice of appeal, he asked for stay of execution which the Court granted. Now, as long as that order for stay of executions subsists, the defendant had virtually won, for the successful Plaintiff could not reap the benefit of the declaratory order, for the Court made a positive order that the plaintiff shall not alienate the land in dispute until the appeal had been determined. The Civil war ensued, at the end of which the record of proceedings became unavailable.

This certainly should suit the defendant who lost the action and who had the order of the Court made in his favour. The plaintiff had no option but to move the Supreme Court for the dismissal of Defendants' appeal for want of prosecution especially as the Defendants, after obtaining the order for stay took no further step.

This then was the dilemma of the Supreme Court and the worry it had as to what the justice of the case should be and the Court held-

"We think it proper at this juncture to point out that it is the duty of the Appellant to ensure that the records or the notes which he proposes to challenge in the Supreme Court are made to that Court. If those records are not made available the respondent is ex debito justiciae entitled to have the appeal proceedings terminated."

I am of the view that in so far as the facts of the Uwechia case go, the Supreme Court took the right course in coming to the side of the plaintiff who had got judgment and who was debarred from the fruits of the judgment by playing on the order of the Supreme Court.

In the case of Obiamalu & Ors. v. Nwosu 1973 1 N.M.L.R. 308 the Court observed, ex debito justiciae, that

"The result is the paradoxical situation where the defendants who lost in the High Court are now being better placed in the whole encounter than the plaintiff who had indeed won the action."

I think it was the same principle of what the justice of the case should be to the two parties that the defunct Western State Court of Appeal held in Akinmolarinle & Ors. v. Yeyebinu & Anor. (1975) 1 N.M.L.R. 45 (a case which is certainly not binding on this Court) that the Court held, again, ex debito justiciae that

"as the judgment is not before the Court of Appeal, the Court is unable to know the final conclusion was reached by the learned trial Judge, and an Order of retrial before another judge would be made."

One stream that permeates through all these decisions, and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water, filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force, and action of the Court. I am not saying that, ex debito justiciae by itself is a cause of action, it is to be the basis for the operation of the Court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.

During the course of the examination of the issues in this case, my brothers Kazeem, J.S.C. made available to me the case of Ajala v. Nigerian General Motores FCA/C/58/81 (unreported). The trial Judge read his judgment and he gave the manuscript thereafter to his Secretary for the purpose of typing. That was the last seen of the judgment. The learned trial Judge then reproduced the judgment from his memory, hoping the memory served him right. The case went to the Court of Appeal. And there the Court said that it would have struck out the appeal but then the parties would not know the actual determination of the Trial Court. And then came the crux. Kazeem J.C.A. as he then was said-

"In the interest of justice and by virtue of the general powers conferred on the Court under section 16 of the Federal Court of Appeal Act 1976.... I hereby order that the case be tried de novo before another Judge."

Again, it was ex debito justiciae. And so the question in this case would be what in the interest of justice to both parties should the order of this Court be? The judgment has been lost. The Plaintiff lost in the High Court. The judgment given by the High Court would never be known to determine whether or not the judgment that was delivered against the Plaintiff should be confirmed or set aside. Is it justice to him to strike out his appeal whereby he would have lost his right of appeal through no fault of his? Is it justice to the defendant that he shall have a judgment in his favour which cannot be re-examined through no fault of plaintiff? I think not. I think the justice of the case lies in the case being retried so that parties could be satisfied that they have enjoyed their constitutional rights of appeal to the fullest. I respectfully agree with my learned brother Bello, C.J.N. that this appeal should be allowed and it is hereby allowed. I abide by all the orders made in the lead judgment of my learned brother Bello, C.J.N.

Aniagolu, J.S.C. The judgment just delivered by my learned brother, Bello, C.J.N., was made available to me in draft. I agree with his reasoning and conclusion.

The facts of this case on appeal have been clearly set out in the said lead judgment of my brother, Bello, C.J.N., and no useful purpose will be served in repeating them here except so much of it as would be necessary for buttressing the arguments in the appeal.

The matter in dispute was a piece of land in Kaduna South which was the subject of a grant made by the Government of Kaduna State to the Appellant had commenced development of the land nor was the figure of N700,000.00 which the Appellant stated it had already spent in the development, challenged by the Respondent. Again, the Appellant alleged that the said development which was being made on the land, was being carried on under the progressive supervision and approval of the officials of the Ministry of Lands and Survey, who were servants and agents of the Government of Kaduna State, and that for the same officials to turn round to revoke the Appellant's Certificate of Occupancy constituted a fraudulent encumbrances on the grant.

It is all agreed that the High Court judgment which dismissed the Appellant's claim is missing. The Judge who read the judgment apparently misplaced the judgment and it could no more be found.

It is equally all agreed that the appeal of the Appellant was filed within time and that no blame could be placed at the door of either party for the missing judgment. It was entirely the fault of the High Court. Moreover, the Appellant had paid all fees necessary for the appeal. Like in the case of Bello v. Attorney-General of Oyo State (1985) N.M.L.R. 828 where the Oyo State Government frustrated the appeal of the Appellant, Bello, by executing him before his appeal was heard, the High Court in the instant appeal, frustrated the appeal of the Appellant by losing the judgment of that Court.

By this loss of the said judgment, there was no judgment available in the suit which could be acted upon, whether for the plaintiff or for the defendant, although it could be said that what was definitely known and accepted on all sides, was that the plaintiff's case was, in that judgment, dismissed. In the circumstances, would it no be a better, practical and more reasonable approach for the case to be retried so that there could be a judgment in being? That is, assuming that one was merely acting only on a practical approach in the interest of justice.

Again, the case involves a citizen's rights-right to property and right of appeal. Section 40 of the Constitution, 1979, guarantees the citizen the right against sequestration of his property while section 33 of the same Constitution grants him the right to fair hearing of his disputes.

The Courts must incline to the protection of the rights of the individual's property. Therefore, since the judgment of the High Court was lost (and lost by the High Court) the Court of Appeal could not, in deference to the right of the Appellant to appeal-a right which had vested in the Appellant exercising its right of appeal -x-ray that judgment, leaving the proper approach by this Court clearly to be an order for a retrial so that all the issues involved could be well articulated and properly ventilated.

If the Appellant's allegation was true, that the officials of the Ministry of Lands and Survey, who had systematically and progressively supervised the Appellant's developments on the land, had turned round, after the huge amount of N700,000.00 had been expended, to revoke the Appellant's Certificate of Occupancy, then a case of estoppel may well have arisen and although that is not the issue in this appeal, yet, upon that allegation coupled with the suggestion of fraud, this Court should be reinforced in its determination to order a retrial, even if fraud, in its narrow and technical meaning, has not, in fact, been established.

The issue involved in this appeal is one of balance of justice. I conceive that where on a balance of justice a citizen's right is to be protected, this Court, as a Court of last resort, must not hesitate, in keeping with the accepted legal principle of ubi jus ibi remedium, even to pronounce upon a new head of remedy, suitable to meet an exigent situation and dictated by the particular facts and circumstances, on the principle that in a new and advancing world, in the protection of the rights of the individuals, the categories of remedies may never be closed. In that way the law is adapted to meet the needs of society and not used to foreclose the legitimate yearning demands of the right of the citizenry.

In the instant appeal, the appellant has done all that it is expected to do. It has appealed, and that within time. Its right over a piece of land, and its N700,000.00 worth of development on the land, are matters at stake.

It would be a gross act of injustice for such a citizen to be deprived of the right of exercising his right to appeal, by reason of the negligence of the Court itself, through the loss of the judgments appealed against. In those circumstances justice would manifestly appear not to be done unless a retrial was ordered, for, to do otherwise would amount to lending support to the veneer of suggestion that the Government of Kaduna State, having taken over the landed property of a citizen, is in collusion with the High Court to see that its act may not be made the subject of close scrutiny by the appeal courts, through the appeal courts x-raying what has been done, by exercising their jurisdiction of surveillance in the appeals.

What would the ordinary person say in those circumstances-that the government and the court have joined hands together to muzzle the right of a citizen? As Lord Denning has once said (See: Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others (1969) 1 Q.B. 577 at 599), the test for justice is what a fair-minded ordinary person would say as to whether justice has been, or has not been, done. The essence of justice is fairness-fairness to everyone.

It leaves a sour taste in the mouth, that a Judge, having delivered his judgment would not allow that judgment to be critically analysed by the Appeal Court, by causing the judgment (whether by mistake or by accident) to disappear. Imagination would run riot in the mind of a fair-minded-right-thinking-citizen as to the justice of the case.

As I have already stated, the above represents the approach when one is looking at the issue from a practical approach, in the interest of justice. But the Court of Appeal, by majority, has decided that it was the duty of the appellant to produce the record for the Appeal Court. Is that so?

This matter came before the Court of Appeal on 23rd January 1985 by which date the Federal Court of Appeal Rules 1981 were already in operation. Order 3 Rules 10 and 11 (ibid) spell out the responsibility of an appellant in relation to the Record of Appeal to be compiled under Rule 9. They read:

"10. The appellant shall within such time as the Registrar of the court below directs deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal calculated at the full cost of one copy for the appellant and one-seventh cost for each of the seven copies for the use of the Court, or where twenty copies are sent, one-twentieth.

11. The appellant shall within such time as the Registrar of the court below directs deposit such sum as shall be determined by such Registrar or give security therefore by bond with one or more sureties to his satisfaction as such Registrar may direct for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant.

Provided that no deposit or security shall be required where the deposit would be payable by the Government of the Federal Republic of Nigeria or of a State, or by any Government department."

The Appellant, having paid the deposits required under Rules 10 and 11, it is the duty to the Registrar of the court below to compile and transmit the Record to the Court of Appeal under Rule 13(1) and (2) which read:

"13.- (1) The Registrar of the court below shall transmit the record when ready together with:

(a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed under Rules 10 and 11 of this Order have been fulfilled;

(c) either (i) seven copies of the record for the use of the Justices together with, where stencil was used for production of the record, copies of such stencils duly and carefully preserved, or (ii) twenty copies of the record;

(d) the docket or file of the case in the court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.

(2) The Registrar of the court below shall also cause to be served on all parties mentioned in the notice of appeal who have filed and address for service a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list."

(Italics are mine).

The Respondent had contended that the Appellant had the responsibility of placing before the Court of Appeal the Record of Proceedings of the High Court (including the judgment) against which he was appealing to the Court of Appeal. Having failed to do so, Mrs Donli, for the Respondent argued that the Court had no choice but to strike out the appeal in accordance with the procedure followed by the Supreme Court in Dr Lawrence Uwechia v. Augustine Obi and Others (1973) 1 N.M.L.R. 308 and Obiamalu and Others v. Nwonsu and Others (1973) 1 N.M.L.R. 307.

Both cases were the product of the Biafran War during which period Court Records were destroyed in acts of belligerency, or missing as a result of the Biafran populace evacuating from one place to another in the heat of the War. The two cases were decided the same day, 9th February 1973 and at the same sitting (Coker, Williams and Irikefe, JJ.S.C.). in Obiamalu (supra) the Supreme Court recalled the Biafran War episode when it said:

"We were told at the hearing that on 25th November 1968, an order for a stay of execution was made by the High Court, Onitsha, in favour of the defendants and that it is now impossible for the defendants to prosecute the appeal since most of the records which should be copied for the Supreme Court were destroyed during the recent Civil War."

The two appeals were decided, and the order striking them out was made, on the basis, as submitted by Dr Uwechia's Counsel in Uwechia (supra), that it was the duty of the Appellants in those appeals, to produce the Records before the Supreme Court, relying on the decision of Jessel, M.R. in Ex Parte Firth, in re Cowburn (1881) 19 Ch. D 419, where he observed:

"The appellant was bound, if he appealed, to present to the Chief Judge a sufficient note of the cross-examination. If he intended to appeal he might have got a shorthand note taken of the cross-examination, or he might have had his counsel's note, or his solicitor's note properly verified by affidavit. If he had not intended to appeal, or if by some accident (for accidents will occur) the notes were lost, if the Judge's note and the counsel's note were lost, then, of course, he might apply by way of indulgence to the Court of Appeal to have the evidence taken over again, and the Court might or might not accede to that application. But, in my opinion, the Court cannot decide an appeal in the absence of the evidence on which the order appealed from was founded."

But, as I have said, the appellant in the instant appeal, had not, by our Rules, the duty to transmit the Record of proceedings to the Court of Appeal. And so, the basis of Mrs Donli's argument that the duty rested upon the Appellant, was out.

Even in those two cases the Supreme Court was much troubled as to what order to make, having regard to the need for a balance of justice. The Court said in Uwechia (supra):

"We were rather worried concerning the nature of the order to make in this case having regard to the interests of both parties and the paramount desires to do equal justice to both."

The Court then struck out the appeal with liberty for the defendants to apply to have it relisted if and when they were ready with the records.

Rather on all fours with the present case on appeal, is the Western State Court of Appeal case of Chief B. Akinmilarinle and Others v. Abigail Yeyebinu and Another (1975) 1 N.M.L.R. 45 (Coram: A Ademola, K. Eso and S.A. Ogunkeye, JJ.A.) decided on 14th March 1975, in which the hearing of the case was concluded on 9th December 1971 but judgment was not delivered until one year and three months after, on 30th March 1973. When the record of appeal came to be compiled, the judgment was lost. The Record was then transmitted to the Court of Appeal without the judgment. It was held that as the judgment appealed against was not before the Appeal Court, the Appeal Court was unable to know how the final conclusion was reached by the trial Judge and therefore an order for retrial before another Judge would be made.

I am satisfied, having regard to all the foregoing, that on balance, the order which properly meets the justice of this case on appeal, is one ordering a retrial of the case in the High Court of Kaduna State, before another Judge, different from the Judge who had earlier heard it in that Court and I so order. Accordingly, the judgment of Abdullahi, J., dated 26th October 1979, and the order of the Court of Appeal striking out the case, are thereby set aside. I abide by the order for costs as decreed in the lead judgment.

Kazeem, J.S.C. This appeal again raises the question as to what an appellate court should do where in an appeal before it, the record of proceedings or the judgment appealed against cannot be produced because it was either lost or missing. Should that court strike out the appeal, or order a retrial of the whole case before another judge?

In this appeal, the Plaintiff/Appellant had sued the Respondent at the High Court of Justice, Kaduna for a declaration that the purported revocation of the right of occupancy granted to it in respect of a parcel of land in Kaduna South was null and void. The case of the appellant was that the parcel of land had been partially developed with a substantial sum of money with the consent of the respondent's officials; and that the fraud of those officials vitiated the said revocation. While it was denied that there was any fraud in the matter, the respondent also accused the appellant of committing some fraud; of transferring the right of occupancy to a third party without the consent of the respondent; and of committing breach of the conditions of the grant. Pleadings were ordered and duly filed by both parties; and the matter went to trial. At the end of the trial, a judgment was read dismissing the appellant's case. Thereafter, the appellant appealed to the Court of Appeal in Kaduna, and filed a Notice and Grounds of Appeal.

While the appeal was pending, the Senior Registrar of the High Court, Kaduna that although the Record of Proceedings had been compiled, yet the judgment of the trial Judge was missing.

At the hearing of the appeal, the contention of both parties was what should be Appellate Court do in such circumstances? Whereas the appellant submitted and urged the court to order a retrial of the whole case, the respondent, on the other hand relied on two previous decisions of this Court and urged the court to strike out the whole appeal.

In a split decision of two to one, the Court of Appeal held that in so far as the decision appealed from could not be produced by the appellant, the appeal must be struck out. The minority decision was that since the appellant was not responsible for the missing judgment, an order for retrial should be made in the interest of justice. In the course of its judgments the court examined and considered the decisions of this Court in (i) Dr L.O. Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308 at p. 311 and (ii) E. Obiamabi & Ors. v. E. Nwosu & Ors. (1973) 1 N.M.L.R. 307 at p.308 where the records of proceedings could not be produced and the court struck out the appeals. It also referred to a judgment of the Western State Court of Appeal in Chief B. Akimolarinle & Ors. v. A. Yeyebinu & Ors. (1975) N.M.L.R. 45 where the judgment of the High Court, On do was lost by the trial Judge and the court ordered a new trial in the interest of justice. In the lead judgment of the majority, it was concluded as follows:

"I am of the view that the better line of action is to strike out this appeal because it is time honoured practice that it is the duty of the Appellant to bring before the Appellate Court the materials on which he desires his appeal to be heard. This is the consistent decision of the Supreme Court.

In the circumstances the orders of this Court are:

(1) This appeal of the Appellant to this Court against the judgment of Kaduna State High Court in SUIT KDH/77/79 delivered on 26th of October, 1979 is hereby struck out.

(2) The Appellant would be at liberty to apply for the appeal to be relisted if and whenever he is ready and willing to prosecute the said appeal.

The effects of the foregoing orders is to restore the parties to the status quo immediately after the judgment of the High Court, Kaduna in the said SUIT KDH/77/79."

It is however noteworthy that consideration of justice permeated throughout the decision of the minority in that court. Inter alia, it observed thus:

"It would be sheer injustice, in my view, if by the default or carelessness of a Court of Justice a judgment is missing and the appellant is prevented from having its decision tested in a court of appeal or having the case tried again. To say the least, such a situation would be open to abuses. What one should stress, in my view, is not the dilemma that would arise should the missing judgment be found after an order of retrial has been made, but the irredeemable injustice that would occur should the appeal be struck out and the judgment never found. It is now about five years and seven months since the judgment which was in the custody of the High Court Kaduna got missing."

Dissatisfied with the decision of the Court of Appeal, the Appellant has now appealed to this Court on only one ground which reads as follows:

"The learned Justices of the Court of Appeal (U. Maidama and B.O. Babalakin JJ.C.A.) erred and misdirected themselves in law in applying the Supreme Court decisions in Dr Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308 and Obiamalu & Ors. v. Nwosu & Ors. (1973) 1 N.M.L.R. 307 whereas the facts in those cases were clearly distinguishable from those before them and on all fours with those in the Western State of Nigeria Court of Appeal decision in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) N.M.L.R. 45 as ably demonstrated by Minority judgment of the Hon. Justice E.O.I. Akpata, J.C.A."

Both sides filed their briefs of argument and the main issue for determination set out in those briefs is: What proper order should be made by the appellate court in the circumstances of this case where the High Court lost its own judgment and made it impossible for the appellant who is not responsible for the loss to proceed with his appeal?

Again, learned Counsel for the appellant submitted that the fact that the appellant in this case was not responsible for the loss of the judgment distinguishes it from the facts of Dr Uwechia's and Obiamalus's Cases; and makes it more in line with the decision of the Western State Court of Appeal in Yeyebinu's Case. Moreover it was argued that the circumstances in Uwechia and Obiamalu's Cases are completely different from the facts of this case. Hence we were urged to allow the appeal in the interest of justice to both parties and to order a retrial before another judge of the same jurisdiction.

In reply, the learned Attorney-General of Kaduna State who appeared for the respondent, submitted that there is no difference whatsoever in the facts to this appeal, and those of the Supreme Court cases of Dr Uwechia and Obiamalu. We were reminded that there is an existing judgment delivered by the learned trial Judge of the High Court of Justice, Kaduna; and that it was the duty of the appellant who appealed against that judgment to produce it. Having failed to do so, there was therefore nothing before the court to adjudicate upon. Hence we were urged to dismiss the appeal.

It seems to me that a proper appraisal of the appeal calls for a critical examination of the above-mentioned cases and others in order to determine which of them is either distinguishable or applicable to the circumstances of this appeal.

In Uwechia v. Obi & Ors (Supra) the applicant sued the respondents in the Onitsha High Court for declaration of title to a piece of land, recovery of possession, damages for trespass and for an injunction. After hearing evidence, the trial Judge gave judgment in favour of the applicant (the plaintiff) on all the items of his claims. The respondents filed a notice of appeal against the judgment and then applied to the court for a stay of execution pending the determination of their appeal. The trial Judge made the order for stay as prayed, but he also ordered that the respondents should not alienate the land in dispute in the meantime. The order was apparently made during the civil war, but when the war was over it became difficult for the appeal to proceed because the record of proceedings were either lost or could not be found. In the meantime the respondents continued to occupy the land in dispute without making any application to the Supreme Court for guidance in the matter and the successful plaintiff continued to be shut out of the land upon which he had got judgment. He thereupon brought application for a dismissal of the appeal for want of prosecution or for any order the court may deem fit to make in the circumstances.

The Supreme Court in the course of its judgment observed:

"We think it proper at this juncture to point out that it is the duty of the appellant to ensure that the records of the notes which he proposes to challenge in the Supreme Court are made available to that court. If those records are not made available, the respondent is ex debito justiciae entitled to have the appeal proceedings terminated.

In the present case, those records are not made available to us and in their absence it is impossible to decide the appeal of the defendants. It has been urged before us that the non-availability of the records was not due to any lapses on the part of the defendants. That may be so, and indeed we were told by the defendants that this was due to the incidence of the civil war. But the plaintiff is as much affected by the civil war as the defendants themselves and clearly the delay in dealing with the appeal far from being due to a fault of the plaintiff has been due to the tardiness of the defendants to demonstrate that they were always willing to prosecute the appeal in compliance with the bond which they executed at the inception of the appeal proceedings. As they failed to do this, their appeal should be disposed of by this Court as best as possible. The defendants having made no application of any type to this Court or indeed any other court for directions on alternative methods of ensuring the prosecution of their appeal. This is a clear breach of the bond which they executed.

We were rather worried concerning the nature of the order to make in this case having regard to the interests of both parties, and the paramount desire to do equal justice to both. We have decided however to accede to the prayer of this motion and though not exactly in the terms of the motion as placed before us but certainly with some modifications of the alternative prayer sought in the motion.

We therefore make the following orders on the application:

(i) The appeal of the defendants to this Court against the judgment of the Onitsha High Court in Suit No. 0/70/62 is hereby struck out.

(ii) The defendants would be at liberty to apply for the appeal to be relisted if and whenever they are ready and willing to prosecute the said appeal.

(iii) The effect of the foregoing orders is to restore the parties to the status quo immediately after the judgment of the High Court, Onitsha, and before the order for stay for execution."

It seems quite evident from the above findings that it was not merely the non-availability of the record of proceedings that was responsible for the appeal being struck out. There were other factors which were taken into consideration thus:

(a) the plaintiffs who won at the trial became the owner of the property until the judgment was reversed by a competent court. But that had so far not happened because it was continuously kept away by virtue of an interim order for a stay of execution which the defendants obtained;

(b) that the defendants were very tardy in taking steps to prosecute the appeal promptly until the records were lost; and they made no application of any type to the court for directions on alternative methods of ensuring the prosecution of the appeal;

(c) the court, though worried concerning the nature of the order to make, was very anxious to find a just solution of ending the continuance of the order for stay of execution which, while it subsisted, put the successful plaintiff in the position of a loser; and

(d) that in the interest of justice, the proper solution was to strike out the appeal lodged by the defendant.

In Obiamalu & Ors. v. Nwosu & Ors. (Supra) a defendant who had lost in a case of declaration of title purported to appeal against the judgment but he failed to satisfy the conditions of appeal within the time limited by law. However, the High Court without jurisdiction granted him extension of time within which to perfect the conditions. There was some dispute as to whether or not those conditions were infact perfected. The appeal could not however be proceeded with because most of the records to be copied for the appeal to be heard have been destroyed during the Civil War. It was held that the defendants having failed to fulfil the conditions of the appeal within time, any extension of time made by the High Court from them to do so was invalid and totally ineffective because it was made by a court which had no jurisdiction to do so. Hence in so far as no order for extension of time was obtained from the Supreme Court (the only court that could validly make one); and the defendants had produced no records of proceedings upon which the purported appeal could be determined the proper order was to strike out the appeal.

Here again the determining factor was not so much because the records of proceedings were not produced before the Supreme Court; but it was because the appeal was in any case incompetent having been lodged out of time and without a valid order of extension of time within which to do so.

However, in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (Supra), the plaintiffs claim against the defendants at the Ondo High Court for damages for possession and in injunction was dismissed; but the judgment of the court was not delivered for about sixteen months. On an appeal being lodged by the plaintiffs, it was discovered that the judgment was lost and the record of proceedings was prepared without it.

On appeal, the two Supreme Court decisions in Uwechia and Obiamalu Cases were considered by the Western State Court of Appeal before it was decided that the only course open to the court was to send the case back for rehearsing before another judge as there was no judgment before that court to examine. In that appeal, there was an inordinate delay by the trial Judge in delivering his judgment; and in any case, it was not the responsibility of the plaintiffs/appellants for failing to produce the judgment. Also in an unreported appeal before the Court of Appeal sitting in Lagos in FCA/L/58/81 Alhaji M.O. Ajala v. Nigerian General Motors Ltd. (Judgment delivered on 1/12/81) the plaintiff has sued the defendant for a sum of N1,694.00 as money had and received in respect of a new Daihatsu Motor Vehicle which was said to have failed to perform according to specification of a brand new car. At the end of the trial, the learned trial Judge read a judgment on 15th December, 1978 but he failed to record a decision of that court in the matter. The manuscript of that judgment was later passed on to the judge's Secretary to be faired but sometime later it could not be found. The trial Judge then produced what he thought was a recollection of the judgment he delivered and swore to it in a Declaration dated 13th June, 1979. There was an appeal against the purported judgment which the learned trial Judge said was non-existent. In a lead judgment delivered by Kazeem J.C.A. (as he then was) it was held that:

"In so far as no decision was recorded by the trial Judge at the time of delivery of the said judgment, I am of the opinion that there is nothing to appeal against to this Court. Hence the appeal is not properly before this Court. Ordinarily in the circumstances, I should have struck out the appeal, but it that is done, the parties will still be unable to know the actual determination of the trial court in the matter. That is the situation in which the parties found themselves without their own fault. Hence in the interest of justice and by virtue of the general powers conferred on the Court under section 16 of the Federal Court of Appeal Act 1976-No. 43 of 1976. I hereby order that the case be tried de novo before another Judge of the High Court of Lagos State within the same jurisdiction."

It will be clearly observed that what motivated the courts in making the various orders in all cases so far reviewed, was the question of doing justice to the parties concerned within the circumstances of each case. What are then the facts in this appeal?

The plaintiff/appellant had sued for the nullification of an Order of revocation of a right of occupancy he obtained in respect of a parcel of land in Kaduna South. Serious issues were pleaded by both parties including the issue of fraud. A judgment was delivered by the trial Judge dismissing the plaintiff's claims. The plaintiff appealed within time against that judgment; but it was later discovered that the judgment was lost. The High Court of Justice, Kaduna could not produce it since it was delivered on the 26th October, 1979, (about seven and a half years ago. Except the mere order of dismissal entered in the Court's record, there was therefore no record of the details of the consideration of the various issues canvassed before the trial Judge as well as the trial Judge's decisions on those issues which should be examined by the appellate court. It should however be noted that it was not the duty of the plaintiff/appellant who had partially developed the property, to prepare the record of proceedings which should have included the judgment. If the appeal could not be heard, and it was merely struck out, it was the defendant/respondent who would have benefited. It seems to me therefore that the circumstances of this case can easily be distinguished from those of Uwechia and Obiamalu cases.

It may be argued that there is an existing judgment in favour of the defendant/respondent; and there is a presumption on appeal that that judgment is correct until the contrary is shown by the plaintiff/appellant: See Agbonmagbe Bank Ltd. v. C.F.A.O. (1961) 1 All. N.L.R. 140 at p. 143 and Odiase & Anor. v. Agho & Ors. (1972) 1 All. N.L.R. (Part 1) 170 at p. 176. But as I have already said above there were no details of that judgment available which could be examined by the appellate court or executed by the successful party. And yet it was the responsibility of the lower court, and not that of the plaintiff/appellant to produce them. It is almost eight years now that the judgment was missing and there is still no possibility that it will ever be found again. It is a principle of law that justice must not only be done, but it must manifestly be seen to be done. In the circumstances, I am of the firm view that the justice of that case demands that the appeal should be allowed and the case remitted to the High Court of Justice, Kaduna for retrial by another Judge; and I so order. Parties are to bear their costs.

Kawu, J.S.C. I have had the privilege of reading before now, the judgment of my learned brother, Bello, the Honourable Chief Justice of Nigeria, which has just been delivered. I agree entirely with his reasoning and conclusions. I am in complete agreement that his appeal ought to be allowed. I however wish to make some comments of my own in support of the lead judgment.

The only issue for determination in this appeal is the order to be made by an appellate court when in an appeal before it, the judgment appealed against could not be produced by the appellant because it was lost. Should the appeal be struck out or a retrial order made before another judge?

The plaintiff brought an action against the defendants in the High Court of Kaduna State claiming as follows:

"The Plaintiff's claim against the defendant is for a DECLARATION that the purported revocation of the plaintiff's right of occupancy No. N.C. 14438 over a piece of land at No. 5 Kachia Road, Kaduna South KCT which has been developed with well over N700,000 with the consent of the officials of the State Ministry of Lands and Surveys is null and void on the ground that the said Government officials as servants and/or agents of the Government are guilty of fraud and their fraud vitiates the purported revocation of the said right of occupancy No. NC 14438 by the Military Administrator on 13th day of February, 1979."

Pleadings were ordered and duly filed by both parties. At the trial both parties gave evidence, and at the conclusion of the case, the learned trial Judge-Abdullahi, J (as he then was) delivered a judgment on 26th October, 1979 dismissing the plaintiff's claim in its entirety. The record shows that on 13th November, 1979 the plaintiff filed a Notice of Appeal containing four grounds of appeal against the decision of the High Court.

In the brief filed by Mr Ijaodola for the appellant in the Court of Appeal dated 21st November, 1984, he stated that the judgment of the Kaduna High Court, which was delivered on 26th October, 1979 and from which he was appealing was "mysteriously missing" and he prayed the court as follows:

"In view of the mysterious missing of the aforesaid judgment of the Hon Justice Umaru Abdullahi, the appellant now seeks an order of this Honourable Court for a retrial de novo at the High Court of Kaduna State.

It may be mentioned for avoidance of any doubt that the appellant is prepared to argue the substantive appeal if this Honourable Court so directs."

The respondent opposed a retrial order on the ground

"that allowing the appeal would create a dangerous precedent, that is, making the loss of a judgment already pronounced as a ground for ordering a retrial."

At the hearing in the Court of Appeal, the main submission of the appellant was that the Court should order a retrial. The contention of the respondent, on the other hand, was that in the circumstances of the case, the proper order to make was one striking out the whole appeal since the judgment appealed from could not be produced by the appellant. The Court of Appeal, (Akpata, J.C.A. dissenting), following the decisions of this Court in Dr Uwechia & Ors. v. Obi & Ors. (1973) N.M.L.R. 309 and Obiamalu & Ors. v. Nwosu & Ors. (1973) N.M.L.R. 307, upheld the respondent's contention and struck out the appeal. The questions is-was the Court of Appeal right in its decision? I do not think so. I have carefully examined the two judgments on which the Court of Appeal based its decision and I am unable to find in either of them where this Court laid it down categorically, that in every case in which an appellant is unable to produce the judgment appealed from, his appeal must be struck out. The impression I form after a perusal of the two judgment is that the order to be made will depend on the circumstances of each case. It must be the order that meets the justice of the case.

In Dr Uwechia v. Obi (Supra) the applicant sued the respondents in the Onitsha High Court for declaration of title to a piece of land, recovery of possession, damages for trespass and for an injunction. After hearing evidence, the trial Judge gave judgment in favour of the applicant (the plaintiff) on all the items of his claims. The respondents filed a notice of appeal against the judgment and then applied to the court for a stay of execution pending the determination of their appeal. The trial Judge made the order for stay as prayed, but he also ordered that the respondents should not alienate the land in dispute in the meantime. The order was apparently made during the civil war, but when the war was over it became difficult for the appeal to proceed because the record of proceedings were either lost or could not be found. In the meantime the respondents continued to occupy the land in dispute without making any application to the Supreme Court for guidance in the matter and the successful plaintiff continued to be shut out of the land upon which he had got judgment. He thereupon brought application for a dismissal of the appeal for want of prosecution or for any order the court may deem it fit to make in the circumstances.

It is clear from the judgment of this Court that in making the order striking out the appeal, consideration of justice was an important factor that influenced the Court. This is shown at p. 312 of the Report where the Court observed as follows:

"We were rather worried concerning the nature of the order to make in this case having regard to the interests of both parties and the paramount desire to do equal justice to both. (Italics are mine for emphasis). We have decided however to accede to the prayer of this motion and though not exactly in the terms of the motion as placed before us but certainly with some modifications of the alternative prayer sought in the motion."

In Obiamalu v. Nwosu (Supra) it is clear that non-availability of the judgment was not the only reason that was responsible for the appeal being struck out. There were other factors which the Court took into account before making the order-such as the failure of the defendants to satisfy the conditions of appeal within the time allowed by law and the granting of stay of execution by the High Court when it had no jurisdiction to do so.

In this case the appellant did all that he was obliged to do in order to prosecute his appeal. He filed the Notice and grounds of appeal within the period stipulated and deposited with the Registrar of the High Court the fees payable. He was in no way responsible for the loss of the judgment. In my view it would be unjust, in the circumstances of this case to deprive the appellant the opportunity of having his case reheard. For these reasons I will allow the appeal, set aside the judgment of Abdullahi, J. which was delivered on 26th October, 1979, and as was done by the defunct Western State Court of Appeal in Chief Akinmolarinle & Ors. v. A Yeyebinu & Anor. (1975) 1 N.M.L.R. 45, order a retrial of the plaintiff's case by another Judge of the High Court of Kaduna State. There will be no order as to costs.

Oputa, J.S.C. I have had the privilege of a preview of the lead judgment just delivered by the Chief Justice of Nigerian and I am in complete agreement with him that this appeal should be allowed. Because the majority decision of the Court of Appeal was apparently based on two previous decisions of this Court, it may be necessary that the fullest expression be given to the views of members of this panel on what really was decided by this Court in Uwechia v. Obi & Ors. (1973) 1 All N.L.R. 308 and Obiamalu v. Nwosu (1973) 1 All N.L.R. 307. It may also be necessary to comment on the type of Brief filed by learned Counsel for the Appellants in this case and to stress the need for learned Counsel to file proper, substantial and adequate Briefs. Also one should again re-emphasis the important function of this Court in re-defining the principles of law if these appear to be misunderstood and the paramount duty and obligation of all Courts to do substantial justice between the parties appearing before them, not justice as a legal fiction but justice dictated by the peculiar facts and surrounding circumstances of each particular case. My comments are prompted by the considerations mentioned above.

The facts of this case are not in dispute. It is agreed on both sides that the Plaintiff (now Appellant) sued the Defendant (now Respondent) at the Kaduna State High Court at Kaduna for:

"A declaration that the purported revocation of the Plaintiff's Right of Occupancy No. N.C. 14438 over a piece of land at No. 5 Kachia Road Kaduna South which had been developed with well over Seven hundred thousand Naira (N700,000.00) with the consent of the officials of the Kaduna State Ministry of Land Surveys was null and void on the ground that the said Government officials as servants and/or agents of Government were guilty of fraud and that the fraud vitiated the purported revocation of the said Right of Occupancy by the Military Administrator on 13th February, 1979."

It is not in dispute that at the conclusion of hearing in the Kaduna High Court, judgment was delivered on 26th October, 1979 dismissing the Plaintiff's claim. It is conceded that the Plaintiff was dissatisfied and aggrieved by the said judgment and that the Plaintiff/Company appealed to the Court of Appeal Kaduna Division. It is common ground that the record of appeal to the Court of Appeal could not be completed because the judgment of the Hon Justice Umaru Abdullahi of the Kaduna State High Court delivered on the 26th day of October, 1979 "was mysteriously missing" and could not therefore be made part of the record.

The trial Judge, Abdullahi, J., was before the date of delivery of the judgment, appointed to the Court of Appeal and he could not read the judgment himself. He then left the judgment to be read by another judge at Kaduna High Court and the judgment got lost in the process. The Chief Judge of Kaduna State, S.U. Mohammed, C.J. heard this case de novo. His judgment for the Plaintiff/Company was taken on appeal to the Court of Appeal Kaduna Division. The Appeal Court declared the second trial by the Chief Judge null and void there being no order from a higher Court-Court of Appeal or Supreme Court for such a retrial. I think the Court of Appeal was right there as both the Chief Judge's Court and Justice Umaru Abdullahi's Court were one and the same High Court and the Chief Judge's supervisory jurisdiction only covers inferior Courts but does not extend to co-ordinate Courts.

The Plaintiff/Appellant then sought an order of the Court of Appeal for a retrial of his suit by the Kaduna High Court in view of the missing judgment without which the Appellants cannot effectively exercise their undoubted right of appeal. After hearing arguments from both sides the Court of Appeal in a majority judgment delivered by Babalakin, J.C.A., Maidama, J.C.A. concurring held:

"I am of the view that the better line of action is to strike out this appeal because it is time honoured practice that it is the duty of the Appellant to bring before the Appellate Court the materials on which he desires his appeal to be heard ... in the circumstances the orders of this Court are:

1. This appeal of the Appellant to this Court against the judgment of the Kaduna State High Court in Suit No. KDH/77/79 is struck out.

2. The appellant would be at liberty to apply for the appeal to be relisted if and whenever he is ready and willing to prosecute the said appeal."

Akpata, J.C.A. wrote a dissenting judgment.

It is against the majority order of the Court of Appeal, Kaduna Division, that the Appellants have now appealed to this Court. The main ground of appeal was:

"1. The learned Justices of the Court of Appeal (U. Maidama and B.O. Babalakin, JJ.C.A.) erred and misdirected themselves in law in applying the Supreme Court decisions in Dr Uwachia v. Obi & Ors. (1973) 1 N.M.L.R. 308 and Obiamalu & Ors. v. Nwosu & Ors. (1973) 1 N.M.L.R. 307 whereas the facts of those cases were clearly distinguishable from those before them and on all fourse with those in the Western State of Nigeria Court of Appeal decision in Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) 1 N.M.L.R. 45 as ably demonstrated by the minority judgment of Hon Justice E.O.I. Akpata, J.C.A.

PARTICULARS OF ERROR & MISDIRECTION

i. In the two Supreme Court decisions the Appellants were at some fault whereas in this case now on appeal the appellant was blameless.

ii.

iii. In the two Supreme Court decisions the lower Courts were blameless whereas in the case now on appeal the trial Court had violated its constitutional duty under S. 258(1) of the Constitution of the Federal Republic of Nigeria 1979."

The above represents the main complaints of the Appellants.

Briefs were filed and exchanged. It is an Appellant who is appealing to the Court to allow his appeal. It therefore behoves him to do all he can to persuade the Court. That is what advocacy implies. In this case on appeal the Brief of the Appellant left very much to be desired. It was too brief to be a good Brief so much so that I consider it not out of place to say a few words about Brief writing. The lawyer confronted with the task of preparing a Brief would do well to remember what may be called the A.B.C. of all legal writing, namely Accuracy, Brevity and Clarity.

Accuracy:

The statement of facts in a Brief must be accurate. There should be an honest and straightforward presentation of all the salient and relevant facts of the case. Facts are sacred. What is also important is that the statement of fact must be factual and not argumentative. The facts must be stated as they really and truly are without undue bias or/and embellishment. Unfavourable facts as well as favourable facts must be given equal emphasis otherwise the integrity of the Brief would have been seriously compromised and the effectiveness of the Brief will suffer, as the Court may then approach the Brief with a degree of scepticism or even disbelief. Honest and frank statement of all the facts (the good and the ugly) will no doubt inspire confidence. The statement of the facts affords counsel a wonderful opportunity to state the equities of the case in such a way that the Court will feel that justice will be done by deciding as is urged by the Brief-writer. The facts included in the "Statement of Facts" must of course be facts supported by the record and there should therefore be a cross-reference (on the right hand corner) to the pages of the record of proceedings where those facts can be found. Accuracy thus implies a correct, fair, straightforward and honest statement of the facts of the case.

Brevity:

As the name implies a Brief should be brief. It should however be short enough to be attractive and yet long enough to cover the substance. The goal of brevity is not easy to achieve unless counsel is very familiarly with all the facts and circumstances of his case, can distinguish between the crucial and non-crucial, the important and the unimportant, the crux of the matter and the merely peripheral, the central issues and the subsidiary ones. Brevity does not imply what Mr Ijaodola did in this case. He filed a one page Brief. Brevity here implies a flexible standard of conciseness in relation to the complexity of the case. Everything germane must be included. Counsel writing a Brief must bring to bear on such writing time, effort and professional skill. A lazy or casual presentation of fact is of little help to the Court and absolutely of no help to counsel. The goal here is to attain maximum brevity consistent with accuracy and clarity.

Clarity:

When counsel is easily understood then that is clarity. Clarity begins with straightforward thinking. When counsel does not understand himself, he cannot possibly make the Court understand him. Clarity of understanding must therefore and inevitably precede clarity of expression. No knowledge, however through of the art of legal composition or exposition will compensate for the want of knowledge of the facts and the law relating to the particular case in which counsel is called upon to prepare his Brief. Having the facts very clear in his mind and being in possession of the right words to use, clarity becomes easily attainable but not otherwise.

I was compelled to thus digress because the Brief of the Appellant in this appeal was so scanty, so empty and so casual (as are some of the several Briefs coming before us) that one is compelled to wonder whether some learned Counsel have not yet learnt the art of Brief writing.

The Brief of the Attorney-General for Kaduna State, Mrs H.N. Donli is a typical example of how a Brief should be written.

It has the correct format:

(i) the Introduction;

(ii) the Decision of the Court of Appeal;

(iii) Issues for Determination;

(iv) Legal arguments;

(v) Summary and Conclusions;

(vi) List of Authorities.

One can only hope that in future learned Counsel who have not yet mastered the art of Brief Writing will make more effort, and/or in fact seek the help of their Seniors with a view to necessary improvement.

The central issue for determination in this appeal is the appropriate order which in fairness and justice the Court ought to make in the unique and peculiar circumstances of this case where Appellants are unable to prosecute their appeal not through any fault or default on their part but through the incompleteness of the record caused by the fact that the learned trial Judge lost the judgment he delivered in the case. When this appeal was heard by the Court of Appeal, Kaduna Division, the majority decision was:

"i. It is the duty of the Appellant to bring before the Appellate Court the materials on which he desires his appeal to be heard.

ii. The appeal ... in Suit KDH/77/79........is hereby struck out.

iii. The Appellant would be at liberty to apply for the appeal to be relisted if an when he is ready and willing to prosecute the said appeal."

The above orders look very much like shadow boxing. Was the Court below by the majority judgment pretending that it was unaware of the fact that the only impediment in the way of the Appellants is the loss of the judgment of the learned trial Judge?

Under Order 3 Rules 10 and 13 of the Court of Appeal Rules the only duty of the Appellant was to pay for the cost of compiling the record of proceedings. It was the duty of the Registrar of Kaduna High Court to prepare and transmit those records to the Court of Appeal. By Section 158(1) of the 1979 Constitution the trial Court was under a constitutional obligation to furnish the appellants with authenticated copies of its decision. There has been no argument regarding this duty. The only argument that ever came forward had been over the practicability of furnishing copies of the decision "on the date of delivery thereof" See Ifezue. Mbadugha (1984) 1 SC.N.L.R. 427 at p.473. This copy of the decision will form the most essential part of the record of appeal. And this is what is alleged lost not by the Appellants but by the learned trial Judge. Ought implies Can. The law is not so unreasonable as to impose an obligation on anyone to do the impossible. How then can the present Appellants have a duty "to bring before the Appellate Court" the judgment in Suit KDH/77/79" when that judgment was lost by the learned trial Judge? To this extent the majority decision of the Court of Appeal Kaduna Division is wrong.

The majority decision gave the Appellants leave to apply for their appeal to be relisted if and when they are ready and willing to prosecute the said appeal. I thought the Appellants had all along been ready and willing to prosecute their appeal. The only obstacle in their way is that the judgment appealed against was lost by the learned trial Judge. Section 220(1)(a) of the 1979 Constitution gave the Appellants an unqualified right of appeal against any final decision of the High Court sitting as a Court of first instance. Suit KDH/77/79 was squarely within the contemplation of Section 220(1)(a) above. It is the glory, happiness and pride of our various Constitutions, that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved, he has another Court to which he can resort for relief. For this purpose the law furnishes him with the right of appeal as of right. Can this Court as the country's last and final Court allow this excellent guarantee of justice to be thwarted by the act of a judge misplacing or throwing away his judgment? I sincerely hope not, otherwise we open up a flood-gate that will ultimately swallow up all our ideals of justice by and through the intervention of Appellate Courts. Bowen, L.J. was very right when in The Queen v. Justices of the County of London & Ors. (1893) L.R. 2 Q.B. 492 he remarked:

"If no appeal were possible I have no great hesitation in saying that this would not be a desirable country to live in .......... It is quite true that there is enough difficulty in appealing as it is; but if there is no appeal at all possible the system would be intolerable."

We have to keep the doors of our appellate Courts open if we are to preserve our rights and our freedom.

It is with the above in mind that I will now look at the two decisions of this Court on which the majority judgment of the Court of Appeal Kaduna Division appears to have been based. The decision of the majority in the Court below was quoted from what was supposed to be the ratio decidendi in Uwechia v. Obi & Ors. (1973) 1 N.M.L.R. 308 at p.309. The head note to that case appears relevant. I will reproduce same thereunder:

"Appeal-Action for declaration of title to land and recovery of possession-Judgment in favour of plaintiff-Defendant filing notice of appeal and asking for stay of execution-Order made as prayed with proviso that they do not alienate land in dispute pending determination of appeal-Order made during the Civil War-Record of proceedings unavailable after the war thus preventing appeal to proceed-Defendants taking no steps before the Supreme Court to enable something to be done-Successful plaintiff making application for appeal to be dismissed for want of prosecution or any order deemed fit-Duty imposed on appellant in a case" (the italics are mine to emphasis the crucial issues in that case).

The first thing to note about Uwechia's case supra is that the balance of justice was on the side of the Plaintiff who won in the High Court but who was prevented from reaping the fruits of his victory by the order for stay of execution. Since the Defendants' appeal had little or no prospect of being heard it was in the interest of justice to restore the parties to the status quo before the order for stay was made. The Court did have some anxiety over what order to make in the interest of justice. It observed at p. 312:

"We are rather worried concerning the nature of the order to make in this case having regard to the interests of both parties and the paramount desire to do equal justice to both."

To me the above is the most important ratio decidendi in Uwechia's case not the "Held", and the principle of that ration decidendi is that in every case the obligation to do justice should be paramount. Now the spirit of justice does not reside in formalities or in words like "held" used in Uwechia's case and many other reported cases. Rather it is to the facts and peculiar surrounding circumstances of each individual case that one has to look for the justice of that particular case. I agree with Akpata, J.C.A. in his dissenting judgment that Uwechia's case is no "dogma for all time that whenever it is impossible to lay hands on the record of proceedings and/or the judgment of the trial Court the appeal would be struck out and the judgment of the trial Court would stand until the aggrieved appellant has performed the impossible, as it were, of getting the burn, lost, destroyed or missing proceedings and/or judgment." With the greatest respect, it is my view that the majority decision of the Court of Appeal in this case did not advert to the important ratio or reason for the decision and/or orders made in Uwechia's case supra. Properly understood Uwechia's case is in favour of the Appellant's plea for a retrial.

The next case considered by the Court below was Obiamalu & Ors v. Nwosu & Ors. (1973) 1 N.M.L.R. 307. This case was apparently decided by this Court on the same day as Uwechia's case supra. There as in Uwechia supra the sole objective was to do justice between the parties. At p.308 the Court observed:

"The position therefore is that the defendant having failed to perfect the conditions of the appeal within the time allowed by the Rules, and not having obtained an Order for extension of time from this Court are deemed to have lost their right of appeal unless and until an order is made in their favour. We also observe that an order for stay of execution was made and as the order ensures until the appeal is determined a situation is hereby created whereby in the absence of the records of appeal it is not possible to hear and so determine the appeal of the defendants. The result is the paradoxical situation where the defendants who lost in the High Court are now being better placed in the whole encounter than the plaintiffs who had indeed won the action. Manifestly, this is an unsatisfactory situation and we are not surprised that the plaintiffs have brought the present motion asking that the appeal be struck out or otherwise disposed of ............." (the Italics are mine to emphasise the apparent difference between the above case and the one now on appeal).

It is against the background of "the paradoxical situation" as well as the manifestly unsatisfactory situation" mentioned in the judgment in Obiamalu's case supra that this Court made the Orders under "Held" at p. 307 of the Report. The whole reason for those Orders was to redress the balance of justice in favour of the winning plaintiffs. Again in my view if properly understood Obiamalu's case supports the Appellants.

In the case now on appeal the balance of justice is tilted heavily on the side of the Plaintiff/Company. They have spent the huge sum of N700,000.00 to develop No. 5 Kachia Road Kaduna South. Their Certificate of Occupancy have been revoked. They sued for a declaration that the purported revocation was null and void. Judgment was given against them by the Court of first instance-the Kaduna High Court. Being aggrieved they appealed to the Court of Appeal Kaduna Division there to be presented a fait accompli that the judgment of the trial Court was lost by the learned trial Judge and their appeal cannot therefore be heard and will have to be struck out. Through no fault or default on their part the Plaintiffs are thus prevented from enjoying their constitutional right to an unqualified right of appeal. Can it be said that this "paradoxical situation" was created by the Plaintiffs? If anything, the "manifestly unsatisfactory situation" the Plaintiffs find themselves was due to the fault or default of the Kaduna State High Court over which the Plaintiffs have no control. This case shares some common features with the case of Aliu Bello & 13 Ors. v. Attorney-General of Oyo State (1986) 5 N.W.L.R. 828. In one the Appellant's undisputed right of appeal was frustrated by his premature execution whilst in the other-the case now on appeal-the Appellants undisputed right of appeal was frustrated by the "extinction" or loss not of the Appellants but of the judgment appealed against.

The question now is-in such a situation what will the demands of justice dictate? In fact viewed from this angel, I will venture to say that this Court's decision in both the Uwechia and Obiamalu's cases supra is in favour of the Plaintiffs/Appellants. It was in the interest of justice that the various Orders in those two cases quite out of their context. That will be bad. But it will be even worse to apply those Orders literally and to situations dramatically opposed both in content and concept to the situations which compelled this Court to make the Orders it made in the Uwechia and Obiamalu's cases supra. The Courts have a 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 above statement seems to be the underlying reason for the decision of the Western State Court of Appeal in Akinmolarinle & Ors. v. Yeyebinu & Anor. (1975) 1 N.M.L.R. 45. That case has some very striking resemblances with the case now on appeal. In each the judgment of the learned trial Judge was lost by the judge himself and could not therefore be made part of the records of appeal. In each the record transmitted to the Court of Appeal was incomplete as it did not contain the judgment appealed against. In the Court of Appeal was incomplete as it did not contain the judgment appealed against. In the Courts of Appeal in either case, parties cited and relied on Uwechia's case as well as Obiamalu's case supra. But the decisions of the two Courts-the Western State Court of Appeal coram A. Ademola, K. Eso, and S.A. Ogunkeye, JJ.A. decided that "as the judgment appealed against is not before the Court of Appeal, the 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. " This Order was made in the interest of justice. The Court of Appeal Kaduna Division by a majority decision decided to strike out the appeal before it with liberty to the Appellant "to apply for the appeal to be relisted if and whenever he is ready and willing to prosecute the said appeal." This Order is obviously against the justice of the case considering that the Appellant/Company was not guilty of any fault in the loss of the judgment of the learned trial Judge.

Also the Court of Appeal, Lagos Division coram Kazeem, Ademola and Nnaemeka-Agu, JJ.C.A. in Ajala v. Nigerian General Motors FCA/L/58/81 (unreported) dealt with a situation similar to that in the case now on appeal. Here the judge read his judgment and passed the manuscript to his Secretary for typing. The manuscript was lost in the process. The trial Judge then tried to reproduce what he thought was his recollection of the judgment that was lost. On appeal the Court of Appeal per Kazeem, J.C.A. (as he then was) held:

"In so far as no decision was recorded by the trial Judge at the time of delivery of the said judgment, I am of the opinion that there is nothing to appeal against to this Court. Hence the appeal is not properly before this Court. Ordinarily in the circumstances, I should have struck out the appeal, but if that is done, the parties will still be unable to know the actual determination of the trial Court in the matter. That is the situation in which the parties found themselves without their own fault. Hence in the interest of justice and by virtue of the general powers conferred on the Court under Section 16 of the Federal Court of Appeal Act 1976-No. 43 of 1976, I hereby order that the case be tried de novo before another Judge of the High Court of Lagos State within the same jurisdiction" (the italics are mine).

It is my view that the Orders made in Uwechia's case as well as Obiamalu's case supra were covertly made in the interest of justice while those made in Akinmolarinle's and Ajala's cases supra were overtly and expressly made in the interest of justice.

With respect to the majority views of the learned Justices of the Court of Appeal, Kaduna Division, I hold that they misconstrued and wrongly applied the rationale of the decisions of this Court in the cases of Uwechia and Obiamalu supra. In the final result and in the interest of justice this appeal ought to be allowed. Having regard to its peculiar facts; the strange circumstances surrounding the loss of the judgment of the trial Court; to the allegation of fraud, in the cancellation of the Appellant's Certificate of Occupancy, levelled against officials of the Kaduna State Government-for all these reasons the best order to make is one for a retrial to show that the spirit of justice does not reside in technicalities nor in mere words nor in Court Orders read out of context. For all the reasons given above and for the fuller reasons in the lead judgment of the learned Chief Justice of Nigeria, I will allow this appeal, uphold the dissenting judgment of Akpata, J.C.A. and set aside the majority judgment of the Court below. I order that this case be remitted to the Kaduna State High Court and there to be tried de novo by another judge. I abide by all the other consequential orders made in the lead judgment.

Belgore, J.S.C. The High Court judgment in this case got lost after it was delivered and there was thus no judgment available for prosecution of appeal before Court of Appeal, Kaduna Branch. The fault for the non-availability of the judgment was never that of the appellant nor of the parties; it was entirely the fault of the Court. One judge wrote judgment, another judge read it on his behalf. The second judge misplaced the judgment that has not bee seen up to now. The Chief judge of the State reheard the case de novo and delivered judgment; the Court of Appeal held this latter judgment incompetent, as only Court of Appeal, it was held, could order trial de novo of a case already concluded with a judgment, and not a court of same jurisdiction. There was thus an appeal against the first judgment that could not be produced. The Court of Appeal by majority judgment relied on Uwechia v. Obi & Ors (1973) N.M.L.R. 309, and Obiamalu & Ors. v. Nwosu & Ors. (1973) N.M.L.R. 307, cases not on all fours with the present one in hand. The editorial heading in law reports could be misleading as to the context of the judgment reported and courts must be extra-careful in relying on such headings before verifying the context. The more appropriate case is Chief Akinmolarinle & Ors. v. Yeyebinu & Ors. (1975) N.M.L.R. 45 relied upon by the dissenting judgment of Akpata, J.C.A.

The function of courts is to do justice between parties by settling their dispute. Anything short of this defeats the spirit of law and the Constitution. 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 atoned. Nasiru Bell v. Attorney-General of Oyo State(1986) 5 N.W.L.R. 828. The loss of the judgment was certainly due to negligence of the High Court of Kaduna State and not that of the appellant. The appellant to all intent and purposes was all along ready and willing to prosecute his appeal against the judgment but it was kept out of his reach by its loss. If the judgment cannot be found, it is in the interest of justice to have a situation whereby it will be possible to finally decide on the dispute between the parties. The only manner to do this in the present circumstance is to have a judgment by ordering trial de novo which will lead to one.

For the above reasons, I agree with the lead judgment of Bello, C.J.N., that the case be remitted to High Court of Kaduna State for trial de novo.

Mr J.O. Ijaodola with Akin Osewa for the Appellant.

H.N. Donli (Mrs), Attorney-General, Kaduna State with D. Jaafary, State Counsel II for the Respondent.

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