Miss Mina Jack V. The Attorney General & Commissioner For Justice, Rivers State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 14th December, 2004 A.C. WORYI, J of the Rivers State High Court delivered judgment in the suit of the 4th Respondent no PHC/481/93. The judgment has incited the filing of the appeals nos CA/PH/287/2005 and CA/PH/287A/2005. Both appeals have been consolidated on the orders of this Court for hearing for purposes of convenience.

The action of the 4th Respondent was instituted on 15th July, 1993 against the present 1st – 3rd Respondent and the present Appellant (in CA/PH/287/2005) as defendants. The 4 reliefs claimed are as follows –

(i) A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy in respect of the piece of land known as plot 102 Diobu GRA Phase 1, Port Harcourt.

(ii) A declaration that the purported acquisition of plot 102 Diobu GRA Phase I by the Rivers State Government is unconstitutional, null and void and of no effect whatsoever.

(iii) A declaration that the purported sale of the said plot 102 Diobu GRA Phase 1 to the 4th Defendant is illegal, null and void.

(iv) A perpetual injunction restraining the Defendants either by themselves, agents, servants and privies from interfering in any manner whatsoever with the Plaintiff’s proprietory interest in plot 102 Diobu GRA Phase, Port Harcourt.

CA/PH/287A/2005

The appeal no CA/PH/287A/2005 was brought by the Attorney-General of Rivers State; the Director-General, Lands and Housing Bureau of Rivers State, Property Development Authority. The respondents in that appeal are Chief Dominic Anucha and Miss Mina Jacks.

The record of appeal was only compiled and transmitted in respect of appeal no CA/PH/287/2005. Mr. Gbasam of counsel to the appellant in appeal no CA/PH/287A/2005 admitted before us on 18th September, 2013 in the open court that the Notice of Appeal in appeal no CA/PH/287A/2005 was not in any record of appeal before the court; that they did not compile the records, and they had applied to use the record in appeal no CA/PH/287/2005.

Since the Records of appeal in CA/PH/287/2005 do not contain the Notice of Appeal in the appeal no CA/PH/287A/2005 and the appellants in that appeal say that they obtained leave of court to use the Records in appeal no CA/PH/287/2005; the proper thing to do, since the existing records do not contain their notice of appeal, was for the appellants in appeal no CA/PH/287A/2005 to have compiled and transmitted additional records of appeal containing their notice of appeal. Mr. A. R. George of counsel to 1st Respondent in appeal no CA/PH/287A/2005 was therefore right, in my view, in submitting that in the absence of any record indicating that there is any record of appeal in appeal no CA/PH/287A/2005 there exists no valid record of appeal on which the Appellants’ Brief filed on 11th October, 2010 pursuant to the order made on 4th October, 2010 could be anchored.

On the authorities of EKPEMPOLO v. EDREMODA (2009) 8 NWLR (pt. 1142) 166 and OKOCHI v. ANIMKWOI (2003) 18 NWLR [pt. 251] 1 this Court has no duty to hear appeal on an incomplete record, especially when the missing portion is very vital. In otherwords this Court has no jurisdiction or competence to hear any appeal on an incomplete record. Order 8 Rule 7(d) of the Court of Appeal Rules, 2011 makes it imperative that every record of appeal shall contain a copy of the notice of appeal. Therefore, the Notice of appeal is a very vital portion of the record of appeal.

The consequence for failure to transmit complete record of appeal within the time prescribed by Order 8 Rules 1 and 4 of the said Rules is an order dismissing the appeal for want of diligent prosecution under Order 8 Rule 18 of the Court of Appeal Rules, 2011. Consequently, appeal no CA/PH/287A/2005 is hereby dismissed. The Appellants’ Brief of Argument filed on 11th October, 2010 pursuant to the order made by this court on 4th October, 2010, and the Respondents’ briefs, particularly the 4th Respondent’s Brief filed 5th March, 2013 in response thereto, are hereby struck out. The said briefs are incompetent.

CA/PH/287/2005