Chief Samuel Effiong Eduok V. Mrs. Mary Effiong Eduok & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling)

This is a motion on notice filed on 27th April, 2012 brought pursuant to Order 4 Rule 1, Order 7 Rule 1 of Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. The Respondent is praying for the following orders:

1. An order of this Honourable Court striking out Appeal No. CA/C/121/2010.
2. And for such further or other orders as the Court may deem fit to make.

The grounds upon which the application is brought are as follows:

1. The Records of Appeal meant to be used or relied upon for the determination of the appeal are false, not coherent and are to a large extent incorrect.
2. The Appeal is incompetent based on Ground No. 1 given herein and the court cannot hear same.

In support of this motion is a 15 paragraphs affidavit deposed to by one Aniekon George Udoh. Counsel relies on all the paragraphs of the affidavit and urges the court to grant him, his prayers.

In reply, the Appellant/Respondent filed a Counter Affidavit of 4 Paragraphs on 23rd May, 2012 deposed to, by one Bassey Obiofia.

The Respondent/Applicant had complained that the records were incorrect. See Paragraphs 7-11 of the Applicant’s affidavit in support of his motion.

7. That upon Hon. Justice J. I. Okoro’s appointment as Justice of the Court of Appeal, the said Justice ceased to be a Judge of Akwa Ibom State High Court and he ceased to preside over any proceedings of the High Court of Akwa Ibom State but the Record of Appeal filed in the Court on 25th August, 2011 (at pages 147 – 162) show that the proceedings in suit No. HU/357/2004 were still heard and signed by Hon. Justice J. I. Okoro after the said Justice had been appointed a Justice of the Court of Appeal.
8. That in pages 147 to 162 of the Record of Appeal, Hon. Justice J. I. Okoro is alleged to have continued to hear suit No.HU/357/2004 after he had been appointed as Justice of the Court of Appeal.
9. That the proceedings said to be the proceedings of 2nd day of August, 2006 (as found in page 147 of the Record of Appeal is incomplete as the next page of the Record of Appeal (that is page 148) starts with the proceedings of 14th day of August, 2006.
10. That there are fatal mix-ups of proceedings in pages 148, 149, 150-154 of the Record of Appeal such that the proceedings in those pages of the Appeal Record are not coherent and are not meaningful.
11. That at pages 160 to 163 of the Record of Appeal, both Hon. Justice J. I. Okoro-Judge and Hon. Justice M. E. Udomo-Judge are alleged to have jointly signed the proceedings of the lower Court of 23rd January, 2007 in suit No.HU/357/2004.

Judicial notice would be taken that Hon. Justice J. I. Okoro of the Akwa Ibom State High Court was appointed a Judge of the Court of Appeal and sworn in on 8th June, 2006. He become functus officio of the Akwa Ibom State High Court. The Record of Appeal pages 147-162 could not have been the proceedings presided over by Okoro J. as he then was. He was ready in the Court of Appeal. Those records cannot be a representation of the true facts.

All proceedings in the Record of Appeal after 8th June, 2006 when Hon. Justice J. I. Okoro was already in the Court of Appeal cannot be a true representation of the facts.

I have gone through the paragraphs of the motion and the pages referred to in the Record of Appeal and have no doubt in my mind that the Record of Appeal is not a correct representation of facts.

A complete and correct record is what foists the Court with jurisdiction to hear and adjudicate over an appeal. Where the Record of Appeal is incomplete or incorrect it robes the court of jurisdiction to hear same.

The learned counsel for the Appellants failed to diligently compile the records. Worst still when his attention was drawn to it he still persisted in his supposed ignorance. It is clear that these records are incorrect and I say no more.

The Record of Appeal transmitted to this court is incorrect there-by robbing the court of jurisdiction.

Where a court lacks jurisdiction the only thing left to be done is to strike out this Record of Appeal transmitted to this court on 25th August, 2011.

Record of Appeal is struck out.