Engineering Enterprise Of Niger Contractor Co.of Nigeria V. The Attorney-general Of Kaduna State (1987)
LawGlobal-Hub Lead Judgment Report
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 for 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 Plaintiffs 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 claim. The Plaintiff 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.
(c) The best evidence rule applies.
- 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.
(c) The whereabout of the original of Exhibit 2 was not in issue in view of Exhibit 7B and was also irrelevant.
(d) The true relationship between the plaintiff and the U.T.C. Ltd. was misconstrued.
- 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 and Ors. (1973) N. M. L. R. 309 and Obiamalu and Ors. v. Nwosu and 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.
- 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 (V. 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 and Ors. (1973) 1 N.M.L.R. 308 and Obiamalu and Ors. v. Nwosu and Ors. (1973) 1 N.M.L.R. 308
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 and Ors. v. Yeyebinu and 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 and Ors. v. Yeyebinu and 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 the case now on appeal the trial court had violated its constitutional duty under section 258(1) of the Constitution of the Federal Republic of Nigeria, 1958.”
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 Plaintiffs 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 challenge 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. Agbomagbe 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 Vol. 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 to that court.If the records are not 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….
- 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 (1980) 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 of 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.