Mutual Life & General Insurance V. Kodi Iheme (2010)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
HON. JUSTICE REGINA OBIAGELI NWODO (J.C.A.) (Delivering the leading Ruling)
Appeal in respect of this matter was heard on the 21/1/2010 and judgment reserved. In the course of writing the judgment this court observed that looking at the Record of Appeal that the testimonies of witnesses in the Arbitration and the proceedings at the Arbitration of the dispute between the Appellant and the Respondent were not part of the Record of Appeal. The documentary exhibits were also not transmitted. The appeal arose from the Ruling of the High Court of Lagos State in which the court dismissed the Appellant’s Originating Summons seeking to set aside the Arbitral Award made in favour of the Respondent. The same Ruling of the court granted the Respondent’s application for an order of court enforcing the Arbitral Award. The proceedings during arbitration was not part of the Record of Appeal.
On the directive of the court hearing notices were served on learned counsels for the parties to address the court on the 14/04/2010 the date for address. The learned counsel for the Appellant Mr. G. E. Ojiekhudu addressing the court stated that the Appellant counsel filed a Motion on Notice on 19/10/06 when he realized that the proceedings before the Arbitration was not in the Record of Appeal, seeking leave to bring in a supplementary record containing the proceedings during the Arbitration. He only gathered that the Motion was struck out on 26/2/08 and at the time of hearing the appeal he did not realize that the supplementary record was not before the court. He stated further that he has been sick at that time. Learned counsel then applied for the proceedings during the hearing of the appeal to be set aside because of the incomplete record.
Learned counsel for the Respondent Chief Akinjide (S.A.N.) argued that both counsels were in court on the date of hearing the appeal and informed the court the appeal was ready for hearing and then argued and adopted their Briefs. That it is too late for the learned counsel for the Appellant to complain as he was not misled by any person. He stated that the record was prepared by the counsel. It is his submission that the court should proceed with Judgment as the Appellant presented the record he wants to rely on and a party cannot be forced to present more record than he requires otherwise the court will be descending into the arena. He prayed that the court should not allow the Appellant file any further record as the Appeal has been heard and it is not a case on fair hearing. He asked the court to proceed to deliver Judgment and give a date for Judgment. Mr. Ojiekhudu notes that both parties made reference to the proceedings during Arbitration and relied on the additional record.
I have considered the submissions of the learned counsel for the Appellant and Chief Akinjide (S.A.N.). It is indisputable there is a serious omission in the Record of Appeal. The appeal is against a decision of the court below which decision is based on an Arbitration Award. The learned senior counsel rightly noted that a court will not force a party to present more record than it requires, but then the appellate court is under a duty not to hear an appeal on an incomplete record. It is not a situation of the court descending into the Arena. An appellate court hears an appeal on the records before it but must ensure that the records are complete. The Supreme Court in Okochi v. Animkwoi (2003) 18 N.W.L.R. (pt.851) pg.1 per Tobi, J.S.C. stated as follows:
“An appellate court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate court.
There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of record”.
See also Nwanna v. F.C.D.A. (2007) 11 N.W.L.R. (pt.1044). It is therefore not proper for this court to base its decision on a record which glaringly is incomplete. The Appellant’s counsel told the court he was sick, the fact that a motion was filed for leave to file supplementary Record of Appeal demonstrates intention to rely on the proceedings as part of the Record of Appeal. Learned counsel for Appellant also indicated that the Briefs referred to the Arbitration proceedings. This clearly shows the proceedings missing in the record is vital and material for the just determination of the appeal.
In the circumstance of the forgoing I believe it is right, and in order for the court not to determine the appeal based on an incomplete record. The application of the learned counsel for the Appellant that the appeal already heard be set aside requires a formal motion in accordance with the provisions under Order 7 Rule 1 of the Court of Appeal Rules 2007. Nevertheless, the court called for the parties to address the court and in the peculiar nature of the situation of incomplete record the appeal could not have been ready when heard. I therefore will have to direct that the Appellant’s counsel file the appropriate application for leave to file a supplementary record. It is unfortunate that this appeal is further delayed. I believe substantial justice will be achieved by a further delay in hearing the appeal than proceeding to determine the appeal on incomplete record. The Respondent will be compensated in cost for the delay.
I therefore direct Appellant to file a motion to bring in the supplementary record within 14 days from today. The cost of N50,000.00 is awarded in favour of the Respondent.
Other Citation: (2010)LCN/3941(CA)
[/membership]
Leave a Reply