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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(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 settle and determine those matters in accordance with the provisions of Rules 2 (a) & (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 Record 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) such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
(6) Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty,

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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.
(7) Every Record of Appeal shall contain the following documents in the order set out;
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.
(8) The Registrar or the Appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or parts only of any lengthy document are relevant to the subject

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matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
(9) Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower Court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.
(10) ? (1) where the record is compiled by the registrar under Rule 1 of this Order, he shall transmit the record within the time stipulated for compilation and transmission under Rule 1. The record shall be transmitted together with ?
(a) a certificate of service of the notice of appeal;
(b) twenty copies of the record.
(c) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.
(2) Where the record is compiled by the

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appellant under Rule 4 of this Order, he shall transmit the record within the time stipulated for compilation and transmission by an appellant under Rule 4. The record shall be transmitted in compilation with Rule 10 (1).
(3) The registrar of the Court below or the appellant as the case may be shall also cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been forwarded to the registrar of the Court who shall in due course enter the appeal in the cause list.?
It is clear from the provisions of Order 8 Rules 2, 4 and 7 above that the responsibility for compiling a record of appeal is primarily that of the registrar of the Court below. It is when the registrar fails to compile the record within the 60 days set for him to so do, that the responsibility shifts on to the appellant to compile and transmit the record to the Court of Appeal within 30 days after the registrar?s failure to compile and transmit the records. It is only when the appellant has compiled the record of appeal that the respondent is at liberty to compile a supplementary record of appeal. See DING TADI V. INEC (NO. 2) (2010) 18

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NWLR (PT. 1224) PAGE 154. By virtue of Order 8 Rules 7, 8 and 9, it is the responsibility of the registrar to ensure that copies of the documents settled and compiled, copy of the notice of appeal and other relevant documents form part of the record and to certify the same. The registrar must ensure that the records of appeal are properly compiled and are legible before they are certified as true copies of the proceedings. See OYENUGA VS. I. C.L. (1991) 1 NWLR (PT. 168) PAGE 415 AT 422-423(H-A) Where the Supreme Court emphasized the duty of the lower Court to ensure the correctness of the record of appeal as follows:
?This record of appeal ought not to have been received from the lower Court because so many pages of the record of proceedings in the Court of trial are not legible. It is the duty of the lower Court to ensure that records of appeal are typed correctly and are legible before they are certified as true copies of the proceedings. The Registrar of this Court is under a duty to return to the lower Court records of appeal which are not legible or badly compiled. The rules on the compilation of the records of appeal succinctly set out under

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Order 7 Rule 2 Rules of the Supreme Court must be complied with.?
Order 7 Rule 2 of the Supreme Court Rules, 1999 is similar to Order 8 Rules 7 ? 10 of the Court of Appeal Rules, 2011. See also OLORUNYOLEMI VS. AKHAGBE (2010) 2 S.C.N.J. PAGE 318 AT 328 where the Supreme Court emphasized the importance of record of appeal as follows:
?It is settled law that every material fact, evidence or document tendered in the proceeding at High Court and relevant to the determination of the issue in controversy between the parties on appeal, should be transmitted as of necessity, to the appellate Court as there can be no consideration of any appeal by appellate Court, or an objection thereto unless and until there is before the Court a record of appeal duly prepared and transmitted by the Registrar of the lower Court or by the appellant himself upon the leave of the Court being sought and obtained.
The rationale is that though an appeal is a rehearing of the matter, the rehearing in this case is by considering the case based on the printed record before the appellate Court, which includes the exhibits tendered therein.?            I have

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examined the records of appeal. I do not hesitate to state straight away that though the registrar of the Court below purportedly certified the record of appeal, the documents and proceedings of the lower Court, the record was improperly and crudely compiled and ought not to have been accepted by the registrar of this Court in the first place. It is obvious that the registrar of the lower Court did not perform his duty of ensuring that all the documents compiled are correct and legible and that they are the copies of the documents in the records or file of the lower Court before certifying it as a true copy of the record.

The processes in the record of appeal except the notice of appeal and the judgment are not signed. The application ex-parte, the affidavit in support, the statement filed in support, the address of counsel in support of the ex-parte application, the motion on notice, affidavit verifying the facts, the statement filed in support of the motion on notice, the written address, the respondents? written address and the applicants? reply to respondents? written address and the applicants? reply to respondents?

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preliminary objection which are the basis of the decision of the lower Court are not signed. The law is settled that an unsigned document is a worthless document. There is no indication whatsoever that any of those documents were filed at the lower Court. The notice of appeal on pages 237-239 bears no indication that it was filed. No evidence of payment. It has a date but the stamp is totally illegible. The record of appeal was received in this Court on 28/11/2007. It is the copy of the notice of appeal attached to the appellants? counter affidavit to the motion dated 15/5/2009 which counter affidavit was filed on 28/6/2010 three years after the receipt of the record in this Court that shows evidence of payment. Therefore, there is a serious doubt as to the authenticity of the documents compiled as the record of the proceedings of the lower Court. The record is very untidy and in loose sheets.
?
The submission of by the appellants? counsel that there is a presumption of genuineness in favour of a certified true copy of a public document is a correct statement of law. However, the presumption is not absolute, it is rebuttable. Apart from the

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presumption of genuineness of a certified true copy of a document being a rebuttable presumption, there is a condition precedent to the application of that presumption. Before the presumption of genuineness can be applied to a certified true copy of a public document at all, it must be properly certified as required by law and the document must ex facie show that it is substantially in the form prescribed and purports to be executed by law. It is now firmly settled that any Court process prepared and filed by a legal practitioner must be signed by that legal practitioner. Secondly, Section 117(4) of the Evidence Act, 2011, provides that an affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken. Thirdly, Section 6 of the Oaths Act provides that every Commissioner for Oaths or Notary Public before whom any oath or affidavit is taken or made under the Act shall state truly in the jurat or attestation at which place and on what date the oath or affidavit is taken or made. Section 119 of the Evidence Act, 2011 stipulates that the jurat shall

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be signed by the person before whom it is taken. None of the affidavits or counter affidavits in the record of appeal was signed by the deponent or the person authorized to administer oaths. The processes in the record have not been made in the form or manner directed by law. Therefore, those processes cannot be presumed to be genuine or to be copies of documents filed at the Court below.

In EWE VS. STATE (1992) NWLR (PT. 246) 147, the Supreme Court held that it is important that the record of proceedings should ex- facie show that the requirements of the law have been fully complied with. There is no doubt that the record of appeal transmitted to this Court does not comply with the requirements of the law and it is invalid. Hearing of an appeal cannot be based on an invalid record of appeal.
The effect of an invalid record is that the record of appeal has not been compiled within the stipulated time. Order 8 Rule 18 of the Court of Appeal Rules stipulates that if the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the record in accordance with Rule 4, the respondent may by

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notice of motion move the Court to dismiss the appeal which the respondents have done in this appeal. I am of the firm view that this is not a situation where the provisions of Order 8 Rule 6 of the Court of Appeal Rules, 2011 should be applied. That rule is applicable where there is a properly compiled record before the Court, where the record is badly and improperly compiled, the respondent is not obliged to compile an additional record. As the name implies, an additional record is meant to be supplementary to the main record in order to put a complete record of the Court below before the appellate Court. That rule is not meant to shift the responsibility of compiling the record of appeal on the respondent which is what the appellants are attempting to do in this appeal. For these reasons, issue 1 is resolved against the appellants.
?
On issue 2 which is whether the entire appeal is competent when the notice of appeal was not separately filed and was not served on the respondents, the respondents? counsel submitted that it is trite law that a notice of appeal is the foundation and substratum of every appeal, any defect therein will

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render the whole appeal incompetent and an appellate Court lacks the required jurisdiction to entertain it. He referred to CLEV JOSH LTD. V. TOKIMI (2008) 13 N.W.L.R. (PT. 1104) PAGE 422 AT 444 (6).

He further submitted that the notice of appeal shown at p. 236 of the record was not separately filed or paid for and the appellants did not serve or make any attempt to serve the purported notice of appeal on the respondents. According to counsel, there is no affidavit of service or any proof of service in the record. It is submitted that non-service of the notice of appeal goes to the root of the appeal and robs the Court of the jurisdiction to determine the appeal. He referred to OJO V. I.N.E.C. (2008) 13 N.W.L.R. (PT. 1105) PAGE 577 AT 603 ? 604(19), OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R. (PT. 1157) PAGE 83 AT 124(2). He urged the Court to strike out this appeal for being incompetent since the respondents were not served with any competent notice of appeal.
?
In his response, the appellants? counsel submitted that on the face of the notice and grounds of appeal on pages 237 ? 239 of the record of appeal and the particulars on

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page (i) of the record, it is clear that the notice was separately filed on 3rd July, 2007 before the motion for stay of execution was filed, therefore the allegation that it was filed as part of the motion for stay of execution cannot be correct. On the alleged non-service of the notice and grounds of appeal on the respondents, counsel submitted that the process was served on the respondents personally and the proofs of service are contained in the case file. The fact that the proofs of service are not in the record of appeal is not a conclusive proof that the respondents were not served.

I stated earlier in this judgment that there is no evidence of payment or filing on the notice of appeal on pages 237-239 of the record of appeal. However since the law is settled that the Court is entitled to look at and refer to the contents of its record in the consideration and determination of an issue in dispute between the parties, I have examined a copy of the notice of appeal attached to the appellants? counter affidavit to the motion dated 15/5/2009 which counter affidavit was filed on 28/6/2010. That copy of the notice of appeal bears evidence of

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payment and shows that the notice of appeal was filed on 3/7/2007. The Court cannot in the interest of justice close its eyes to that fact though that information ought to have formed part of the record of appeal.

As regards the issue of non service of the notice of appeal on the respondents, Order 8 Rule 10 (1) (a) of the Court of Appeal Rules, 2011 provides that where the record is compiled by the registrar under Rule 1 of the Order, he shall transmit the record together with a certificate of service of the notice of appeal. The record of appeal herein was not compiled by the registrar. The law is trite that service of an originating process is a condition precedent to the exercise of Court?s jurisdiction to adjudicate on a matter before it. The appellants? counsel stated that the notice of appeal was served on the respondents. No proof of service is placed before this Court. However, the purpose of service of a Court process is to bring to the notice of a party the pendency of an action in Court against him. The respondents were aware of the appeal before the service of the record of appeal on them. Summons for settlement of records were issued

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by the registrar of the Court below and the respondents have denied the service of the summons. In any case, the notice of appeal has been amended on the order of this Court and deemed as properly filed and served. Therefore, the extant notice of appeal is the amended notice of appeal filed on 9/12/2009 and deemed properly filed and served on 22/2/16. The controversy in respect service of the notice of appeal has thus become otiose. For these reasons, issue 2 is resolved against the respondents.

Issue 1 having been resolved against the appellants, the respondents? objection succeeds. The record of appeal and the appeal with its Number CA/E/391/2007 are hereby struck out.

Other Citations: (2016)LCN/8592(CA)