Access Bank V. Onwuliri (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

By a Writ of Summons filed on 28/7/2003, the Respondent herein, as plaintiff, sought the following reliefs against the appellant, as defendant:

1. A DECLARATION that the purported summary dismissal of the Plaintiff from the Defendant conveyed in the letter dated 4/1/2000 is null, void and of no effect whatsoever same having been done without due process and proper authority.
2. An order of Court against the Defendant:

(a) Reinstating the plaintiff as a staff of the defendant or accepting the plaintiff’s resignation from the date of judgment in this suit.

(b) Special damages:

(i) Salary arrears from January 1999 – December, 2002 at N1,000,083.33 per annum x 4 years = N4,000,333.32

(ii) Salary arrears from January 2003 to June 2003 at N83,340.28 per month = N500, 041.68

(iii) Gratuity from July 1989 – 2003 at N83, 340. 28 per annum x 14 years = N1,166,763.92.

(iv) Contributory pension for 14 years = N2,300,000.00

(v) 40,000 shareholding at stock price of N3.00 each and dividends from 1999 – 2003 = N160,000.00

​Sub-total less = N8, 127,138.8

(vi) Housing loan of N900, 000.00 at 2% interest per annum from 1999 – 2003 = N984,098

Total special damages = N7,143, 040.7

(vii) Paying the Plaintiff’s monthly salary at the rate of N83, 340,280 per month or any increase thereto from the month of July 2003 until judgment.

(viii) An interest on the total entitlement based on the Central Bank of Nigeria commercial rate.

(ix) Releasing all the original copies of the plaintiff’s academic and professional qualifying certificates and shareholding certificates in the custody of the Defendant.

(c) General Damages

For all the hardship caused by the Defendant to the plaintiff, his entire family and defendants and the damage to his professional career in banking industry, the Plaintiff claims the sum of N8,000,000.00.

GRAND TOTAL CLAIM = N15, 143, 040.70

The parties exchanged pleadings and the case proceeded to trial. In support of his case, the respondent testified as PW1 and tendered 14 Exhibits, which were admitted and marked Exhibits P1-P14. The appellant also led evidence in its defence denying the claims. In a considered judgment delivered on 1st June 2007, judgment was entered in the respondent’s favour as follows:

“In the final analysis, I enter judgment for the Claimant and make the following orders:

(i) I hereby declare that the dismissal of the Claimant by the Defendant on the 5th of January 2000 is wrongful.

(ii) I award the sum of N1, 000,083.33 to the Claimant as arrears of salary from January 1999 to January 2000, a period he was still in the employment of the defendant.

(iii) I award the sum of N833,402. 80 as gratuity from July 1989 – 1999.

(iv) I award the sum of N2,300,000.00 for the Claimant’s participation in the Defendant’s contributory pension scheme.

(v) The claim of N160, 000 for the stock price and dividends on the shares is refused.

(vi) I award the sum of N2 million general damages to the Claimant.

(vii) The Defendant is to take into account the amount the Claimant admits owing in the sum of N984, 098.00.

(viii) The defendant is to return the Claimant’s academic and professional certificates as well as his share certificate within 7 days from today.

(ix) The claim for interest is refused.

(x) N10,000.00 costs to the Claimant.” The appellant was dissatisfied with the decision and filed an appeal before the Court of Appeal, Port Harcourt Division (the lower Court). It transpired that in the course of transmission of the record of proceedings to the lower Court, the Exhibits tendered by the respondent and upon which the learned trial Judge placed heavy reliance in reaching his decision, were not transmitted along with it. In its judgment delivered on 4th July 2013, dismissing the appeal, the Court stated that the omission of the exhibits was noticed during deliberations on the appeal. The Court noted that in an effort to do substantial justice in the matter, the registrar of the Court was directed to contact the trial Court as well as learned counsel for the parties to intimate them of the situation and for appropriate action. The letter written by the Deputy Chief Registrar of the lower Court to the Chief Registrar of the trial Court, requesting for the transmission of the exhibits, was reproduced in the judgment. The Court also reproduced an affidavit deposed to by one Anthony Ezike, the staff in charge of the Litigation Department of the lower Court, to the effect that he had contacted the learned counsel for the respective parties and the trial Court to no avail. The affidavit was deposed to on 1st July 2013. Judgment in the appeal was delivered on 4th July 2003.

The Court held that the non-production of the exhibits was fatal to the appeal. It held, relying on the Garuba Vs Omokhodion (2011) 14 NWLR (Pt. 1269) 145. that compliance with the Rules of Court for the compilation and transmission of the record to the Court is a condition precedent to a valid appeal. The Court held that the failure to transmit the exhibits, particularly Exhibit P1, which is the appellant’s Staff Handbook, made it difficult to give any consideration to the issues raised in the appeal. The appeal was accordingly dismissed.

The appellant is aggrieved and has appealed to this Court vide its Notice of Appeal filed on 4/7/2013 containing two grounds of appeal.

​At the hearing of the appeal on 19/10/20, T. J. Krukrubo Esq. adopted and relied on the appellant’s brief filed on 28/1/2014 and its Reply brief filed on 25/4/2014 in urging the Court to allow the appeal. Benjamin Obiora Esq., adopted and relied on the respondent’s brief filed on 26/3/2014 in urging the Court to dismiss the appeal.

The appellant formulated a sole issue for the determination of the appeal thus:

“Whether the Court of Appeal was right by dismissing Appeal No. CA/PH/433/2008: Access Bank Plc Vs Mr. A. N. C. Onwuliri for failure on the part of the Trial Court Registry to transmit along with the record of appeal, all the exhibits tendered at the High Court.”

The respondent also distilled a single issue as follows:

“Whether, in view of the extant Court of Appeal Rules applicable to this matter, the failure of the Appellant to compile and/or transmit the records of all documents and exhibits necessary for its appeal from the trial Court to the Court of Appeal, after the failure of the Registrar of the Trial Court to do so within the prescribed time, does not amount to failure to fulfil the mandatory condition precedent to the presentation and prosecution of its appeal and therefore the Court of Appeal justified when it dismissed the appeal for want of diligent prosecution in accordance with the Rules of the Court of Appeal.”

The issue formulated by the respondent is unnecessary long-winded and verbose. I shall determine the appeal on the issue identified by the appellant.

SOLE ISSUE

Learned counsel for the appellant submitted that the responsibility for the compilation and transmission of the record of appeal is tripartite. He submitted that it rests on the Court (trial or appellate) as well as the appellant and respondent. He referred to Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules 2007, which are in pari materia with Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules, 2011. He submitted that the primary duty of compilation and transmission of records from the trial Court to the appellate Court or from a lower Court to a higher appellate Court, is that of the Court whose decision is appealed against. He submitted that before the advent of the 2007 Rules, it was the sole responsibility of the Registrar of the lower Court. He referred to Order 3 Rules 13 and 21 (5) of the Court of Appeal Rules, 2002 and the case of Nwana Vs F.C.D.A. (2007) 11 NWLR (Pt. 1044) 59 @ 79-80 H-D and 80 F-G.

He submitted that although the Notice of Appeal in this matter was filed on August 20th, 2007, before the 2007 Rules came into effect, the rules subsequently caught up with the appeal. He submitted that Order 8 Rule 1 of the 2007 Rules places the primary responsibility for compilation and transmission of records on the Registry of the lower Court, which must do so within 60 days. He submitted that having fulfilled the conditions of appeal, it had to wait for the 60 days given to the Registry to elapse before taking any further step.

Learned counsel submitted, relying on Okochi Vs Animkwoi (2003) 18 NWLR (Pt. 851) 1 @ 23 D-E, that an appellate Court hearing an appeal has a duty to ensure that the records settled by the parties are completely transmitted and that in the event that a portion material to the determination of the appeal is found to have been omitted, the appellate Court ought to make diligent efforts to procure same before determining the appeal before it. He also referred to Engineering Enterprise of Niger Contractor Co. of Nigeria Vs A.G. Kaduna State (1987) 2 NWLR (Pt. 57) 381; (1987) 1 NLR 396 @ 404; Mobil Producing (Nigeria) Unltd. Vs Monokpo (2003) 18 NWLR (Pt. 852) 346 @ 437 – 438.

Learned counsel submitted that in the instant case, the lower Court failed to carry out its fundamental responsibility by not making appropriate recourse to the appellant or the trial Court. He submitted that by the appellant’s counter affidavit at pages 1-2 of the Supplementary Record, it is clear that the appellant was never contracted regarding the omitted exhibits until Anthony Ezike’s Affidavit of Facts was served on the appellant’s counsel on 1st July 2013, just a few days before the date fixed for judgment. He submitted that immediately they were served with the affidavit, steps were taken to retrieve the exhibits, which were forwarded by the trial Court registry to the Court vide a letter dated 2nd July 2013, which is at page 4 of the Supplementary Record. He submitted that the lower Court declined to accept the exhibits, which necessitated the counter affidavit earlier referred to. He noted that in the affidavit of Anthony Ezike, wherein he averred that learned counsel on either side were notified of the non-transmission of the exhibits, he failed to exhibit copies of the letters allegedly written to them.

​Submitting further, learned counsel conceded that by the Court of Appeal Rules, 2007, the duty to transmit records was extended to the appellant. He referred to Order 8 Rule 4, which makes it mandatory for the appellant to transmit the records if the lower Court fails to do so within 60 days. He submitted that in the instant case, as the records were duly transmitted from the trial Court to the lower Court upon the appellant’s fulfilment of the conditions of appeal, it was unlikely that the appellant would be aware that the exhibits were not transmitted, particularly as, according to him, the appellant only referred to Exhibit P12 in its brief and relied extensively on the oral evidence led at the trial.

He submitted that the respondent also has a duty, under the 2007 Rules, albeit discretionary, for the transmission of records, as he stands the risk of a reversal of the judgment appealed against.

​He submitted that the general rule is that an appeal will not be heard on incomplete records. He submitted that there are exceptions to the rule such as where, in the opinion of the Court, the missing portion is clearly so immaterial that it cannot affect the Court’s decision and where the parties agree that the appeal may be heard on the incomplete record. He referred to: Engineering Enterprise of Niger Contractor Co. of Nig. Vs A.G. Kaduna State (supra); Nwana Vs FCDA (Supra); Mobil Oil Producing (Nig) Unitd. Vs Akhagbe (2010) 8 NWLR (Pt. 1195) 48; Edjekpo Vs Osia (2007) 8 NWLR (Pt. 1037) 635.

He submitted, relying on Engineering Enterprise of Niger Contractor Co. of Nigeria Vs A.G. Kaduna State (supra); Okochi Vs Animkwoi (supra) and Edjekpo Vs Osia (supra), that the Courts have consistently held that the proper order to make where the records are incomplete, is to remit the case to the trial Court for retrial.

He submitted that in a more recent decision, in Ekpemupolo Vs Edremoda (2009) 8 NWLR (Pt. 1142) 166 @ 199 E-H, this Court, rather than order the case to be remitted to the trial Court for rehearing, ordered the matter remitted to the Benin Division of the Court of Appeal for rehearing by another panel of that Court. He submitted that in any event, the lower Court erred in dismissing the appeal rather than ordering its remittance to the trial Court for rehearing.

In response, learned counsel for the respondent submitted that learned counsel for the appellant has totally misconstrued the development of the law and its consequences regarding the compilation and transmission of records to the appellate Court.

Learned counsel submitted that the authorities of Nwan​a Vs FCDA (supra) and Okochi Vs Animkwoi (supra) were decided under the 1981 and 2002 Court of Appeal rules, where it was the sole responsibility of the Registrar to compile and transmit records and there was no time limit prescribed. He submitted that it was for this reason that this Court held in those cases that the failure of an officer of the Court to discharge his responsibility would not be allowed to defeat the Constitutional right of a litigant.

​He referred to Order 8 Rule 4 of the Court of Appeal Rules, 2007 and submitted that upon default by the Registrar to compile and transmit the record within 60 days, it becomes mandatory for the appellant to do so and the responsibility extends to all documents and exhibits necessary for his appeal. He submitted that where the appellant fails to compile and transmit the record within the 30 days prescribed, he can no longer do so as of right but must seek leave of Court to do so. He submitted that there was a lapse of 284 days between the settlement of records by the parties at the trial Court on 3/9/2007 and the eventual transmission of the record to the lower Court on 14th August, 2008. He submitted that the appellant had more than enough time after the default of the Registry to compile and transmit all the necessary documents and exhibits necessary for the hearing of the appeal. He submitted that notwithstanding the fact that it was the Registrar who eventually transmitted the record, once it had defaulted in doing so within the 60 days, the responsibility was the respondents. He contended that after the default the Registrar becomes the appellant’s agent and the responsibility for any act or omission falls back on the principal. He submitted that the fact that the appellant, not the Registrar, had to seek leave to regularise the record, was indicative of the fact that it was the appellant’s sole responsibility at that stage.

​Learned counsel submitted that the appellant failed to comply with the condition precedent to the presentation and prosecution of a valid appeal and the consequence is that the lower Court lacked jurisdiction to hear an appeal on an incomplete record. He referred to Mutual Life and General Insurance Vs Kodi Iheme (2012) ALL FWLR (Pt. 610) 1401 @ 1409 G-H. He conceded that the appellant has a constitutional right of appeal but asserted that the right goes with a commensurate duty to ensure that he present a valid appeal and presents it diligently. He referred to Mutual Life General Insurance Vs Kodi Iheme (supra) at page 1411 F-H; Olorunyokemi Vs Akhagbe (supra) @ 246. He contended that the appellant has not shown diligence in the prosecution of his appeal.

Learned counsel submitted that it was not the duty of the lower Court to assist the appellant in the compilation of its record. He submitted that the lower Court was right to have dismissed the appeal. He contended that the appellant’s plea that the case be remitted to the trial Court for retrial is a ruse to continue to deny the respondent the fruit of his judgment wherein the appellant was ordered, inter alia, to return the respondent’s professional qualifying certificates which have been in the appellant’s custody for more than 15 years.

​He urged that in the event of a dismissal of the appeal, this Court should make a consequential order granting post-judgment interest at the rate of 10% per annum from the date of the judgment on 1st June 2007 until all the respondent’s entitlements are paid.

In his reply Brief, Learned counsel for the appellant submitted that the respondent is only permitted to respond to issues raised by the appellant in its brief and arising from the judgment appealed against. He submitted that the arguments regarding the alleged delay in the transmission of the records did not arise from the decision of the lower Court and cannot be raised before this Court. He submitted that in any event, the transmission of the record was regularised by the lower Court.

Learned counsel submitted that the submissions of the respondent’s counsel regarding the award of 10% post-judgment interest is an indication that he is dissatisfied with an aspect of the judgment of the trial Court. He submitted that the duty of a respondent in an appeal is to defend the judgment appealed against. Where he seeks to challenge an aspect of the judgment, he is required to file a cross appeal. He referred to N.N.P.C. Vs Famfa Oil Ltd. (2012) 17 NWLR (Pt. 1328) 148 @ 199 B; Eliochin (Nig) Ltd. Vs Mbadiwe (1986) 1 NWLR (Pt. 1447).

It is settled law that an appeal is in the nature of a rehearing in respect of all the issues raised in respect of the case. It is a continuation of the original suit rather than a new action. See: Sabru Motors Nig. Ltd. Vs Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 370 @ 382; Obineche Vs Akusobi (2010) 12 NWLR (Pt. 1208) 383; Alhassan & Anor. Vs Ishaku & Ors. (2016) 10 NWLR (Pt. 1520) 230. See Order 3 Rule 2 (1) of the Court of Appeal Rules, 2002 and all subsequent amendments of the Court of Appeal Rules, which consistently provide that all appeals shall be by way of rehearing. In the circumstances, the importance of the transmission of a complete record to the appellate Court cannot be over-emphasised. A complete record consists of all the proceedings in the lower Court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered. The record of proceedings serves as the reference material for the appellate Court upon which to base any of its findings.

​The importance of the record of proceedings is further illustrated by the numerous decisions of this Court to the effect that the Court, the parties and their counsel are bound by the record of appeal. It is presumed correct until the contrary is proved and neither the Court nor the parties may go outside it for any reason. See: Garba Vs Omokhodion (2011) LPELR – 1309 (SC) @35-36 D-A; Sifax Nig. Ltd & Ors. Vs MIGFO (Nig.) Ltd. & Anor. (2018) 9 NWLR (Pt. 1623) 139; (2018) LPELR – 49735 (SC) @ 46 A-E; Agbareh & Anor. Vs Dr. Anthony Mimra & Ors. (2008) LPELR – 43211 (SC) @ 21 B – F, to name just a few.

As rightly submitted by learned counsel for the appellant, the rules governing the compilation and transmission of records has evolved over the years. Under Order 2 Rule 13 of the 1981 Rules, the Registrar of the Court from which the appeal arose had the sole responsibility of compiling and transmitting the record of appeal to the appellate Court. There was no period of time prescribed for the conclusion of the exercise. As a result, it could take years for the record to be compiled and transmitted to the Court of Appeal. Appeals frustrated and stagnated as a result of the failure or neglect of the Registrar to compile and transmit the record within a reasonable time. Order 3 Rule 13 of the 2002 Rules also saddled the registrar with the sole responsibility to compile and transmit the record with no stipulation as to time. In practice, in order to expedite the hearing of their appeals, appellants would seek a departure from the rules and the leave of the Court to compile and transmit the records themselves. The practice was subsequently codified in the Court of Appeal Rules, 2007. Order 8 Rules 1, 2, 3, 4 and 6 provide as follows:

“1. The Registrar of the Court below shall, within sixty days after the filing of a notice of appeal, compile and transmit the record of appeal to the Court.

2. In pursuit of Rule 1 above, the registrar shall within a reasonable time summon the parties before him to

(a) settle the documents to be included in the record of appeal and

(b) fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal.

3. The said registrar shall, whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settled and determine those matters in accordance with the provision of Rule 2 (a) and (b) of this Order.
4. Where, at the expiration of 60 days after the filing of the notice of appeal, the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.
5. Where the respondent considers that there are additional records, which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.”

(Underlining mine)

From the above provisions, it is quite evident that the Court sought to eliminate the unconscionable delay in the compilation and transmission of the record of appeal from the trial Court by placing additional responsibility on the appellant, and where applicable, the respondent. For the first time, the Rules also stipulate the time within which the exercise is to be carried out. Under the new dispensation, which was carried into the 2011 Rules, the registrar of the Court has the initial responsibility to compile and transmit the records to the Court of Appeal within 60 days after the filing of the notice of appeal. Where he fails or neglects to do so within the specified time, it becomes mandatory for the appellant to compile and transmit the record himself and at his own expense. He has 30 days from the date of the Registrar’s default.

There is no duty on the respondent to compile an additional record. He may do so where a document, proceeding or exhibit that is crucial to the just determination of the appeal has been inadvertently omitted from the compilation. He has 15 days from the service on him of the record of appeal within which to file an additional record.

It is not in dispute that there was a delay in the compilation and transmission of the record of appeal from the trial Court to the lower Court.

​It was subsequently regularised upon the appellant’s application. It is also not in dispute that the exhibits tendered at the trial Court were not transmitted to the Court below and that the omission was not discovered until the appeal had been argued and their Lordships were deliberating on their judgment. The steps taken by the Court to ensure the transmission of the documents was alluded to in the judgment, which were said to have yielded no fruit. The appeal was therefore dismissed, as stated earlier in this judgment. The question begging for an answer in this appeal is whether the dismissal of the appeal was appropriate in the circumstances of this case?

It is important to note that the decisions in Okochi Vs Animkwoi (supra), Engineering Enterprise of Niger Contractor Co. of Nigeria Vs A.G. Kaduna State (supra) and Mobil Producing (Nig.) Unltd. Vs Monokpo (supra), relied upon by learned counsel for the appellant, were all decided before the 2007 Rules were enacted. In light of the 2007 Rules, which makes it mandatory for the appellant to compile and transmit the records upon the registrar’s default, the burden shifted to the appellant to ensure that a complete record was transmitted.

​The lower Court cannot be blamed for the steps it took in requesting for the exhibits in order to ensure substantial justice in the determination of the appeal. It is also not mandatory for the respondent to compile an additional record. He only needs to do so where the omitted records, processes or exhibits would have an adverse effect on his ability to defend the judgment appealed against.

It has always been the settled position of the law that a Court is not entitled to speculate on matters not before it. I have also illustrated elsewhere in this judgment, the binding nature of the record of appeal. The decision of this Court to the effect that on no account must the Court deliberate on an incomplete record, are in recognition of this principle. Without seeing the material that was before the trial Court, the appellate Court would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice.

​I agree with learned counsel for the respondent that the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by the appellate Court.

Where the Court is bereft of jurisdiction, the proper order to make is an order of striking out, not dismissal, the appeal having not been heard on the merits. Where the exhibits or other material aspects of the record cannot be traced at all, the consequential order to make is one remitting the case back to the trial Court for re-trial. In the instant appeal however, there is evidence before the Court, vide the counter affidavit deposed to on behalf of the appellant on 3/7/2003, in response to the affidavit of a facts of Anthony Ezike Esq., contained at pages 1-4 of the Supplementary Record, that the exhibits were eventually transmitted to the lower Court on 3/7/2013.

​It was averred that the first time the appellant became aware of the non-transmission of the exhibits was when its counsel was served with Anthony Ezike’s Affidavit of facts deposed to on 1/7/2013. It was further averred that on receipt of the affidavit, learned counsel immediately swung into action by making the necessary application to the Registry of the trial Court vide a letter dated 1st July 2003, received on 2/7/2013 (Exhibit A) and that the said exhibits were transmitted by the Registry to the lower Court the following day, 3rd July 2013 vide a letter dated 2/7/2013 (Exhibit B).

Although His Lordship, S. J. Adah, J.C.A. made reference to the letter said to have been written to the Chief Registrar of the Rivers State High Court dated 11th June 2013, requesting for the transmission of the exhibits, the letter does not form part of the record of appeal before this Court, nor is there any proof of service thereof on the said Chief Registrar. On the other hand, the counter affidavit in the supplementary record, shows that the appellant’s counsel took steps immediately he became aware of the situation and the exhibits were promptly transmitted.

The duty of the Court is always to do substantial justice between the parties. Having not determined the appeal on the merits, I am of the considered view that the appeal ought not to have been dismissed. If it had been struck out, the appellant would have had the opportunity to put its house in order and ensure the prompt transmission of the exhibits.

​It is pertinent to observe also that this is not a case where the omitted part of the record cannot be traced. In such circumstance, the only option open to the Court would be to remit the case to the trial Court for retrial. In the instant case, there is evidence from the record that the exhibits were transmitted to the lower Court, albeit one day before the judgment was delivered. All the material required for the just determination of the appeal is now before the Court.

Having held that the lower Court was wrong to have dismissed the appeal, which was not heard on its merit, the sole issue in this appeal is resolved in favour of the appellant.

The appeal therefore succeeds. The judgment of the lower Court delivered on 4/7/2013, dismissing the appeal for incomplete record of appeal, is hereby set aside. The appeal is remitted to the Court of Appeal to be heard by a different, panel of that Court. The parties shall bear their respective costs in this appeal.

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SC.657/2013