Prince Eze Madumere v. Government Of Imo State & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, JCA (Delivering the lead ruling)

The 1st respondent in the instant application filed on 27/10/22 by L.A Njemanze Esq. and argued by K.C.O. Njemanze, SAN, leading L.A Njemanze, Esq. and one other moved the court on 7/5/2024 for an order striking out appeal No. CA/OW/175/2022 for the appellants failure to compile and transmit the record as stipulated by law, principally on the grounds that the compiled and transmitted record by the appellants is not authenticated, certified, and is incomplete.

A five (5) paragraphed affidavit, a further affidavit with a reply on point of law as well as a written address support the application wherein a sole issue, to wit:

Whether the purported record of appeal compiled by the appellants to this honourable court is incomplete and unauthenticated, and therefore this appeal is liable to be struck out was submitted for our resolution.

In reaction, the appellants/respondents filed a 14 paragraphed counter affidavit and a written address wherein a solitary issue was nominated for determination, to wit:

Whether the appeal as constituted is in substantial compliance with the orders made by this court on the 24th day of June, 2022.

It is important at this stage to point out that the application which is the subject of this ruling shares the same fraternity with the motion CA/OW/174/2022 whose ruling has just been delivered. Both applications emanating from the same judgment seek the same prayer, the striking out of the two appeals.

The parties to the two motions are the same. While the garnishee (Zenith Bank Plc) is the appellant/respondent in motion CA/OW/174/2022, in this motion CA/OW/175/2022, the 2nd, 3rd, 4th respondents in motion CA/OW/174/2022, the Government of Imo state, the Attorney General of Imo State and Imo State Government are the appellants/respondents.

In both motions, the 1st respondent (Judgment creditor at the lower court) is the 1st respondent/applicant. The counsel for the applicant and the appellant/respondent (Zenith Bank Plc) in the two motions are the same and the argument canvassed in the two motions are the same.

Though the learned senior counsel for the appellants/respondents in motion CA/OW/175/22 is different, the argument canvassed in opposition to the application is substantially the same with the argument canvassed against motion CA/OW/174/2022.

The law is settled that once an issue(s) in one appeal, and this includes an application, has/have been subsumed in the other or are separately argued, and judgment has been delivered in one sister appeal or application involving the same parties and issues arising from the same judgment of the trial court, it shall not be necessary to re-determine the issues again in the sister appeal or application. See APC v. ASIEC (2022) 12 NWLR (Pt. 1845) 411 at 4411 – 4412 Per Okoro, JSC.

A re-determination of the issues in this sister application will amount only to an academic exercise which the court is enjoined not to indulge in. It thus means that judgment /ruling delivered in one would naturally abide the other.

Therefore, the ruling just delivered in motion No. CA-OW-174-2022 abides in this application.

Accordingly, having regard to the peculiar facts and circumstance of this case that the registry of the lower court was to the knowledge of the parties and the court shut down at the material time making it impossible to have the record certified by the Registrar and considering the fact that the appellant had made an effort to promptly compile and transmit the record, albeit, without meeting the requirement of the law, I am inclined to grant the appellant 14 (fourteen days) from today to compile and transmit the complete and certified record of appeal to this court.