Ilori Olawole Adekanbi & Anor. V. Alhaji Alawani Olufawoye & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.(Delivering the Lead Ruling)

By a motion on notice dated and filed on 14/10/2010 the Appellants/Applicants (hereinafter referred to as the applicants) seek the following order:

“An order directing that Suit No. HOW4/2001 be heard de novo by another Judge by reason of the frustration of the appeal lodged hereto.

And such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds for the application are:

1. “The applicants, who were defendants at the Ondo State High Court, filed an appeal but the appeal could not be prosecuted because the case file, records and exhibits were and are still missing at the Lower Court’s Registry.
2. The applicants also filed an application for stay of execution which could not be argued because of the missing case file and records.
3. All efforts of the applicant’s counsel to retrieve the case file have proved abortive and this is preventing the prosecution of the appeal.
4. The respondents are in the mean time delineating the res, the land in dispute, into plots for the purpose of alienating same to 3rd parties and this can prejudice the applicants.”

The application is brought pursuant to Section 15 of the Court of Appeal Act 2007 and under the inherent jurisdiction of the court. It is supported by a 29-paragraph affidavit deposed to by the 2nd applicant with several exhibits annexed thereto. In opposition to the application, the respondents filed a 17- paragraph counter affidavit sworn to on 17/4/2011 by the 2nd respondent.

When the application came before the court on 11/4/2011, the parties were ordered to file written addresses. In compliance with the said order the applicants filed a written address dated and filed on 21/4/2011. It was settled by OBA S.K.A. ADEDOYIN. The respondents filed a written address in opposition thereto dated and filed on 28/4/2011. It was settled by ADEDEFE ONI ESQ. The applicants also filed a reply to the respondent’s written address. It is dated 18/5/2011 and filed on 19/5/2011. The application was heard on 1/2/2012. O.S. ADERIBIGBE ESQ., adopted and relied on the written addresses referred to above and urged the court to grant the application. O.F. ALADEDUTIRE ESQ., learned counsel for the respondents adopted the written address in opposition to the motion and urged the court to refuse the application.

The facts that gave rise to this application are deposed to in paragraphs 3 – 21 of the affidavit in support. They can be summarized thus: The respondents were plaintiffs at the court below in an action seeking declaration of title, damages for trespass and injunction against the applicants as defendants.The suit was commenced in the Owo Judicial Division of Ondo State High Court before Hon. Justice Kumuyi (now Hon, Chief Judge), Hon. Justice Kumuyi was later transferred to Okitipupa. The suit was continued and concluded in the Akure Judicial Division. Judgment in the suit was delivered on 13/3/09 in the respondents’ favour. The applicants being dissatisfied with the decision filed a notice of appeal dated 23/3/09 before the Owo Judicial Division of the Court where the suit originated. They also filed a motion on notice for stay of execution of the judgment. The application was not listed for hearing. Upon enquiry, the applicants were informed that the case file and record of proceedings could not be located at the registry of the Akure division of the court for transmission to Owo. Despite several letters written to the Chief Registrar of the Court all efforts to trace the missing processes were unsuccessful. As a result of this impasse the applicants have been unable to take any steps towards prosecuting the appeal. It is their contention that the respondents have taken advantage of the situation and engaged a surveyor who has started delineating the land in dispute into plots. In the absence of the case file and record of proceedings the applicants have also been unable to proceed with their application pending before this court for an order of interlocutory injunction to restrain the respondents from destroying the res or foisting a fait accompli on this court.

The respondents in their counter affidavit contend that they have not been served with any notice of appeal in respect of the judgment of the lower court; that there is no pending order of injunction restraining them, as the successful party from dealing with the land in dispute; that the averments regarding the missing case file and records are untrue and that the applicants have not been diligent. The 2nd respondent averred that he confirmed from the registry of the trial court that the record of proceedings is not missing as alleged; it is also averred that some of their key witnesses who testified at the trial have since died.

Arguing in support of the application in his written address, learned counsel for the applicants referred to Section 15 of the Court of Appeal Act and submitted that with the wide powers conferred on this court by the said provision, this court can grant the order sought. He relied particularly on paragraphs 5-29 of the supporting affidavit and the exhibits attached thereto. He submitted that the Chief Registrar of the Ondo State High Court failed to respond to letters (Exhibits D – G) written to him regarding the missing record. He submitted that in a situation such as this where the applicants are unable to compile and transmit the, record of proceedings to the Court of Appeal due to no fault of theirs this court can make an order remitting the case back to the trial court to be heard de novo. He relied on several authorities in support of this proposition: First Bank Plc. Vs. May Medical Centre Ltd. (2001) FWLR (48) 1355 H. (2001) 9 NWLR (717) 28 @ 39 E – F; System Metal Ind. Ltd. Vs Ehizo (2003) NWLR (820) 460 @ 476 – 477.

In reaction to the counter affidavit, learned counsel referred to paragraphs 10 and 11 thereof where it is averred that no exhibits were tendered in the case and that the record is not missing and submitted that in order to convince the court the respondents ought to have exhibited the record. He noted that in paragraph 10 of the counter affidavit the name of the person who informed them that the record was not missing was not stated. He urged the court to strike out the paragraph for offending paragraphs 87 – 89 of the Evidence Act.

He stated that there is no averment to show that the respondents confirmed the existence of the record from either Mr. Orimoloye, the registrar of the Owo division of the lower court, or the Chief Registrar, both of whom were specifically mentioned by the applicants in their supporting affidavit. He urged the court to strike out paragraphs 10 and 11 of the counter affidavit. Urging the court to discountenance paragraphs 12, 13 and 14 of the counter affidavit he submitted that the parties’ case files could not be a substitute for the court’s record of what the’ learned trial Judge saw and heard at the trial; that it is not only the respondents who would suffer if an order of re-trial is made and that the respondents did not name any of their witnesses who had allegedly died.

He submitted that the applicants are entitled to exercise their right of appeal and where the records are lost due to the fault of the lower court the proper course of action is for an appellate court to order a retrial. He relied on: Haastrup (W.A.) Ltd. Vs Welding Eng. Co. (Nig.) Ltd (1999) 9 NWLR (470) 92 @ 99 E – H &,100 A – C,; Engineering Enterprise of, Niger Contractor Co. of Nig. – Vs A.G. Kaduna State (1987) 2 NWLR (57) 381; Akaide Vs The State (1996) 8 NWLR (468) 525 @ 531 : 532. He urged the court to grant the application and to order the parties to file copies of their originating processes and pleadings before the lower court before another Judge.

In reply to the submissions of learned counsel for the applicants, learned counsel for the respondents relied on the counter affidavit filed. He raised a single issue for determination thus: