Johnson Okolo & Ors V. Leonard Nwafor & Anor (2016)

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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

This appeal emanated from a fundamental right enforcement proceedings instituted by the respondents herein at the High Court of Anambra State, Aguata Judicial Division with Suit No. AG/MISC./16/06. Judgment was delivered in the said suit by Hon. Justice C. O. Amechi on 28/6/2007. The appellants were dissatisfied with the judgment and they have appealed to this Court by a notice and grounds of appeal signed by Nwankwo B. I. Esq. which is not dated. It is on pages 237 ? 239 of the record of appeal. The notice of appeal was amended pursuant to the order of this Court made on 22nd February, 2016. The amended notice of appeal was deemed as properly filed and served on the same day. Both parties filed and exchanged briefs of argument.

?By a motion on notice dated 8th March,2012 and filed on 9th March, 2012, the respondents raised a preliminary objection to the hearing of the appeal. They are seeking the following orders:
(a)?Dismissing the appeal as incompetent as the Court has no jurisdiction to entertain the same;
?(b) Striking out the record

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of appeal as incompetent;
(c) Striking out the name of the 2nd Respondent;
(d) Striking out the names of the 3rd and 13th Appellants.
AND for such other and further orders as this Honourable Court may deem just and proper to make in the circumstances.
THE GROUNDS ON WHICH THE RELIEFS ARE SOUGHT ARE AS FOLLOWS:
1. The Notice of Appeal was not properly filed and was not served on the applicants;
2. The record of appeal is highly defective because it is incomplete and omits vital words and signatures, containing inauthentic signatures; and the said record is not neat ? it is very untidy, improperly paginated and mutilated the vital exhibits;
3. The Record of Appeal and documents contained therein are not certified as authentic.
4. The 2nd Respondent in the appeal is now dead;
5. The 3rd and 13th appellants are not interested in this appeal and the 1st, 2nd, 4th ? 12th Appellants and their counsel lack the locus standi to represent them in this appeal.?
?
The motion is supported by a 26 paragraph affidavit and the exhibits attached thereto. The appellants filed a 40 paragraph counter affidavit to

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oppose the motion on 5/3/14. The respondents incorporated the argument in support of the objection in their brief filed on 9th March, 2015 and deemed properly filed and served on 16th April, 2015. The respondents formulated the following two issues for the determination of the objection:
(i) Whether the record of this appeal is competent to sustain this appeal when it is incomplete and uncertified.
(ii) Whether the entire appeal is competent when the notice of appeal was not separately filed and was not served on the respondents.

On issue 1 which is whether the record of this appeal is competent to sustain this appeal when it is incomplete and uncertified, the respondents? counsel submitted that this appeal is incompetent and it is not the record of the processes and proceedings of the trial Court because none of the motions, affidavits and counter-affidavits contained in the record of appeal including the judgment of the lower Court forming the basis of this appeal shows any evidence of having been sworn to or signed. Counsel argued that even if the record is that of the Court below, it is an incomplete record because clear copies of

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some exhibits were not included in the record and the appellants put the excluded exhibits in issue in the appeal. It is also submitted that this appeal should be struck out not only for incomplete record but also because the record was not properly certified as it is settled law that the Court of Appeal cannot base its decision in an appeal on an incomplete record transmitted to it without the vital documentary exhibits and without the privilege of seeing the documents. He referred to NWANA V. F.C.D.A. (2007) 11 NWLR (PT. 1044) PAGE 59 AT 79(3), ADERIBIGBE V. ABIDOYE (2009) 10 N.W.L.R. (PT. 1150) PAGE 592 AT 609-610 (11), AULT & WIBORG (NIG.) LTD. V. NIBEL IND. Ltd (2010) 16 N.W.L.R. (PT. 1220) PAGE 486 AT 496(C-D).
?
In his response contained in the appellants? reply brief filed on 25th May, 2015, the appellants? counsel submitted that there is a presumption of regularity in favour of the record of appeal by virtue of Section 168 (1) of the Evidence Act, 2011 which can only be rebutted by evidence from the respondents pointing out the parts of the record which are different from the copies of the processes actually filed in the proceedings

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at the lower Court. He further submitted that if the respondents? counsel has a genuine reason to believe that the processes contained in the record of appeal herein are not those filed by the parties, he ought to have taken benefit of Order 8 Rule 6 of the Court of Appeal Rules, 2011 to compile and transmit additional record of appeal which he failed to do. He referred to ONUZULIKE VS. CSD ANAMBRA STATE (1992) 3 NWLR (PT. 232) PAGE 791. He also submitted that the record of appeal was properly certified by the Assistant Chief Registrar and the necessary fee paid as shown on page (ii) of the record.

RESOLUTION
Compilation and transmission of the record of appeal from the Court below to this Court is guided by Order 8 Rules 1 ? 10 of the Court of Appeal Rules, 2011. Those rules provide thus:
“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<br< p=””

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