Uyaemenam Nwora & Ors V. Nweke Nwabunze & Ors (2011) LLJR-SC

Uyaemenam Nwora & Ors V. Nweke Nwabunze & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.

The Anambra State High Court of Justice in the consolidated suit No.AA/53/75 and AA/11/77 entered judgment against the plaintiffs/appellants/applicants in this matter. In a two pronged reaction to the said decision the applicants herein have appealed the decision to the Court of Appeal Enugu by a Notice of Appeal filed on 18/11/99. They have also sought and obtained unconditionally a stay of execution of the said trial court’s decision. The order of stay of execution still subsists. No wonder the case more or less has stood practically still ever since the said order of stay even as the defendants/respondents’ effort have failed in the lower court to set it aside.

However, by the instant application dated 22/9/2005 brought pursuant to Order 20(1); Order 3 Rule 1 of the Court of Appeal Rules, Section 16 of the Court of Appeal Act and under the inherent jurisdiction of the court as preserved by Section 6(6) of the 1999 Constitution, the plaintiffs/appellants/applicants in this court have sought before the Court of Appeal to wit:

“(i) An order directing the Chief Judge of the Anambra State High Court to assign consolidated suit Nos.AA/53/75 and AA/11/77 to a Judge of the Anambra State High Court Awka Judicial Division for retrial or trial de novo, and

(ii) An order directing accelerated hearing of the Retrial/Trial de novo of consolidated suit Nos.AA/53/75 and AA/11/77.”

Subjoined to the foregoing prayers are the five grounds of the application to wit:

“(1) Judgment was given against the plaintiffs/appellants/applicants on 12th November, 1999 by the Anambra State High Court presided over by Nwazota C.J.

(2) Plaintiffs/appellants/applicants immediately thereafter appealed against the said judgment to the Court of Appeal, particularly as per their Notice and Grounds of Appeal dated 17th November, 1999.

(3) Plaintiffs/appellants/applicants fulfilled all conditions of appeal as stipulated by the Registry of the lower court and made sufficient funds available for the typing, compilation and transmission of the record of proceedings to the Court of Appeal.

(4) When the lower court Registry failed and neglected to compile and transmit the record, plaintiffs/appellants/applicants secured an order of this court on 10/04/05 compelling the Registrar/Registry of the lower court to compile and transmit the record of proceedings within 30 days.

(5) Despite the service of the enrolled order of this court on the Registrar/Registry of the lower court, the record of proceedings has not been compiled and transmitted on the ground that the entire record book containing the minutes/manuscripts of Nwazota C.J. is missing and cannot be traced.”

To further expatiate on and support the application in this court the applicants have filed among others the following processes to wit:

l. An affidavit of 31(thirty-one) paragraphs sworn to by one Honourable Peter Igbo, a businessman of Okpuloji Village Abba in Njikoka Local Government Area of Anambra State.

2. A brief of argument dated 30/12/2009 filed on 8/9/2009; and
3. A reply brief to the brief of the 1st and 2nd sets of respondents filed on 12/10/2010.

The appellants’ response to the respondents’ objections are contained in the appellant’s reply brief.

The gist of the applicants’ case as gathered from the foregoing processes in a paraphrase is that the trial court record book containing the minutes of the trial Judge – Nwazota C. J, (as he then was) is missing and cannot be traced; even as the Awka High Court Registry has been duly mobilized, as it were, by funds and other enabling logistics as alleged by the applicants for compiling and transmitting the record of court proceedings in the consolidated suits No.AA/53/75 and AA/11/77 to the lower court. That, notwithstanding the said Registry has refused, failed and neglected to compile and transmit the record of Appeal. Hence,the applicants by an application filed before the lower court have sought and obtained an order compelling the Registrar of the Awka High Court to compile and transmit the said record of proceedings in the consolidated Suits No. AA/53/75 and, AA/11/71 within 30 days. And not even on having served the said Registry the enrolled order thereof, the record of appeal is yet to be compiled and transmitted as ordered and as has been alleged by the appellants, on the ground that the entire record book containing the minutes/manuscripts of Nwazota C.J. in the matter is missing and so cannot be traced.

In the appellants/applicants’ brief of argument filed in this application they have from the grounds of appeal condensed 3(three) issues for determination in this matter as follows:

(i) Whether or not by summarily striking out the Appellants’ motion as done by it on 13th January 2009, the lower court was not in error by overruling itself on the earlier orders made by it in respect of and concerning the said motion. –

Ground 1

(ii) Was the lower court not in grave error by striking out the Appellants’ motion dated 22nd September, 2005 on the ground that the condition precedent to taking an appeal before it was/is not complete because there was/is no record of proceedings transmitted to the court – Grounds 2 and 3.

(iii) Whether by summarily striking out the Appellants’ motion aforesaid, the lower court has not breached foreclosed appellants’ constitutional right of appeal.- Ground 4.”

They (1st set of respondents) have reacted to the application, and have in their response to the affidavits in support of the application filed a Counter-affidavit. They have also raised Notices of preliminary objection on some four areas of the appellants/applicants’ case that is to say, firstly on the non-service of the Notices of Appeal on the 1st set of defendants/respondents personally. Secondly, on the subsisting order of the court of appeal in CA/E/30/2009 dated 3/3/2009 striking out the appeal in the consolidated suits No.AA/53/75 and AA/11/77; thirdly, on the record of appeal in SC.195/2009 being incompetent for contravening of Order 7 Rules 6, 7(1), (3) and (a) of the Supreme Court Rules. Fourthly on the incompetent grounds of appeal comprising ground 1, 2, and 3

They have in the alternative raised a sole issue for determination in this appeal as follows:

“Whether the lower court was right in striking out the plaintiffs/appellants’ motion dated 2nd September 2005 and filed on 11th November 2005 for there being no record of appeal placed before it.”

They, the 2nd set of respondents have also reacted to the appellants/applicants’ application by filing a Counter-affidavit. They also have raised a Notice of Preliminary objection to the effect that the instant interlocutory appeal has been rendered an academic exercise and therefore has become incompetent as the lower court has shuck out the main appeal before it.

And I should reiterate further that the lower court has struck out the notice of appeal filed by the appellants upon which the instant appeal is predicated for non-compliance with the conditions imposed on the applicants as per Order 8 Rule 1 of the Court of Appeal Rules. I shall come to discuss this fundamental objection anon.

All the same, the 2nd set of defendants/respondents have in the alternative raised 3 issues for determination as follows:

“(1) Whether an Appellate Court before which an Appeal has not been entered could rightly make an Order for re-trial or trial de-novo, and if the answer is in the negative whether the lower court could have ordered a retrial in the circumstance of this case, without having a look at any record of appeal from the trial court. (This issue relates to grounds two and three of the Notice and Grounds of Appeal).

(2) Whether the lower court’s striking out of the Appellant’s Motion dated 22nd September, 2005 and filed on 11th November 2005, breached their Constitutional rights of Appeal, expressly stated in Section 243(b) of the 1999 Constitution of the Federal Republic of Nigeria, to be exercised in accordance with Rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. (This issue relates to Grounds one and four of the Notice and Grounds of Appeal).

(3) Whether the decisions reached by the Supreme Court in the cases of “Engineering Enterprise vs. A. G. Kaduna (1987) 2 NWLR pt.57 p.381 at 387 -391; FBN Plc. Vs. May Med. Clinics (2001) 18 NWLR, Pt.717 p.28; Okochi vs. Animkwoi (2003) 18 NWLR Pt.851 p.1 at 17-29 and Nwana vs. FCDA (2007)” NWLR Pt.1044 p.59 at 71-83, are to the effect that in every case where there is no record of appeal, a retrial De novo has to be Ordered. (This issue relates to Ground one of the Notice and Grounds of Appeal).”

As per the foregoing, I have set out in a nutshell the case of each of the parties in line with the processes filed by each one of them respectively in this matter. I now proceed to examine firstly the preliminary objections filed by the 1st and 2nd sets of respondents vis-a-vis the responses to the same as contained in the appellants reply brief filed thereof. The respondents have raised their statements of objection as per their notices of preliminary objection before hearing the appeal with a view as a settled principle that if the objections are successfully taken and upheld the appeal terminates automatically in lumine. Okafor vs. Nwude (1999) 7 S.C. (Pt.1) 106.

They, the 1st set of respondents have raised four statements of preliminary objection that is to say, firstly of non-service of the Notice of Appeal on them. In this regard, it is submitted that none of the named 1st set of respondents on record has been served the Notice of Appeal in this matter in the manner prescribed as per Order 2, Rules 3(1) (b) and 4 of the Rules of this Court being an originating process in this appeal, which enjoins personal service. That failure to serve Notice of Appeal in that manner is fatal to the jurisdiction of an appellate court as this court to hear appeals as the instant one and thus, that the instant Appeal should be struck out for not having been initiated by due process. They rely on Skenconsult (Nig) Ltd. v. Ukey (1981) 1 SC.6, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Mack v. Eke (1997) 11 NWLR (Pt.529) 501, Unipetrol (Nig) Ltd vs. Bukar (1997) 2 NWLR (Pt.488) 472 and Habib Nigeria Bank Ltd. Vs. Opomulero (2000) 15 NWLR (Pt.190) 315 at 330 paragraphs E-H.

Secondly, that by striking out the main appeal in the consolidated suits No.AA/53/75 and AA/11/77 as per the ruling in Suit No.CA/E/30/2009, the lower court has destroyed the substratum of the instant appeal No.SC.115/2009 pending in this court as it has no leg on which to stand.

It is further submitted that the judgment of the lower court in Appeal No.CA/E/30/2009 being an order of a court of competent jurisdiction is binding on the parties and the court unless and until set aside. They rely on Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) 382, Aladegbemi vs. Fasanmade (1988) 3 NWLR (Pt.8l) 129, Babatunde & Ors. V. Olatunyi & Anor. (2000) 2 NWLR (Pt.646) 557 at 568 and Alhaji Isiyaku Yakub Enterprises Ltd. Vs. Omolaloje (2006) 3 NWLR (ft.966) 195 at 203 paragraph B; and that by Section 287(2) ofthe 1999 Constitution this court is also bound to recognize the said order even moreso as the said order has not been appealed against.

Thirdly, that the record of appeal in SC.115/2009 is incompetent for contravening the provisions of Order 7 Rules 6, 7(1), (3) and (a) of the Rules of this court. It is further submitted that the instant appeal being interlocutory in nature, the applicants have not complied with Order 7 Rule 7(1) as the record of appeal has been filed outside 14 days period as prescribed under the said Rules without first having sought and obtained extension of time to do so nor the leave of this court to rely on the incompetent record at the hearing.

And, fourthly, on the incompetent grounds 1, 2 and 3, that is specifically grounds one and two do not arise from the decision appealed against as they do not attack the ratio decidendi of the said Ruling. See Egbe vs. Alhaji (1990) 1 NWLR (Pt.128) 546, Attorney-General of Oyo State v. Fairlakes Hotel Ltd. & Anor. (1988) 5 NWLR (Pt.92) 1, Saraki v. Kotoye (1992) 9 NWLR (Pt.264) at 184 paragraphs A-E, Management Enterprises vs. Otusanya (1987) 2 NWLR (Pt.l62) 265 and Adesanya v. President of Nigeria (1981) I NCLR 358 and also that ground three raises

questions of mixed law and facts and has been filed without leave of court first sought and obtained as prescribed under Section 233(3) of the 1999 Constitution; and therefore, that the issues raised from those grounds are also incompetent. See Sadiku v, Attorney-General Lagos State (1994) 2 NWLR (Pt.355) 235 and that ground four is academic in view of the binding decision as per the Ruling in CA/E/30/2009 given by the lower court; and from which stems the instant interlocutory appeal.

They i.e. the 2nd set of Respondents have raised one statement of objection which is on all fours with the 1st set of Respondents 2nd statement of objection as set out above, albeit, that it is an academic exercise in that there is no valid Notice of Appeal by appellants to sustain the appeal against the Awka High Court judgment that is to say, subsisting at the moment as the lower court has on 3/3/2009 struck out the Appellants’ Appeal against the consolidated suits No.AA/53/75 and AA/1177 as their Notice of Appeal has been struck out upon a certificate of non-compliance with the conditions of appeal imposed on the applicants as “would be appellants”.

Both sets of Respondents have each urged the court to uphold their respective objections and to strike out the instant appeal in lumine as being fatally faulted.

The appellants/applicants have in reaction to the 1st set of respondents submitted of their (i.e. the 1st of respondent) having taken steps in the proceedings in this matter against the background of their being aware of the alleged irregularity, and so they cannot now complain as they have waived that right. See Ojo vs. INEC (2008) 13 NWLR (pt.1105) 577, Obimonure v. Erinsho (1966) 2 SCNLR 228 and Guinness (Nig.) Plc. Vs. Ufot (2008) 2 NWLR (Pt.1070).

On the said order of the lower court striking out the Notice of Appeal in CA/E/30/2009, the applicants have submitted as misconceived as it does not form part of the instant record of appeal in this matter and so cannot sustain the objection.

On non-compliance with Order 7 Rules 6, 7(1), (3) and (4) of the Supreme Court Rules it is submitted that the appeal is a final decision as it; has determined finally the rights of the parties and so that Order 7 Rules 6, 7(1), (3) and (4) does not apply to a final decision as there is nothing left to be decided as between the parties’ rights in the case after the final order for retrial or trial de novo.

On the alleged incompetent grounds of appeal, that is to say, on grounds 1 and 2 the appellants/applicants have submitted that the grounds read with their particulars have showed them as emanating from the said Ruling appealed against and that Ground 3 being a question of law alone requires no leave under Section 233(3) (supra). On the question that the appeal is academic as raised by both sets of respondents the applicants have posited that the order of 3/3/2009 has no bearing on this appeal being irrelevant and should be ignored; again that it is not part of the instant Record of Appeal. The court is urged to overule the objections of both sets of respondents respectively as totally misconceived and as the means to stall the appeal.

I have gone through the arguments of both sides in the preliminary objections and moreso the grounds as raised by both sets of respondents and I think I can without much ado say that I find respectfully the statements of objections as raised by the two sets of respondents in regard to the fact that the instant interlocutory appeal is no longer a live issue and should be struck out most apt and fundamental; that is to say, it has to be dealt with at once as is the case with threshold issues touching on issues of jurisdictional competence of an appeal and on the powers of the court to entertained the same. There is however, before the court a Supplementary Record of Appeal filed on 7/1/2010 dealing with the proceedings of 3/3/2009 on the cause of “Certificate as to non-compliance with the conditions imposed upon a would-be appellants” (underling for emphasis). It is interesting that by the certificate of non-compliance filed in this matter before this court, the applicants are still designated as “would-be appellants” I do not intend even then to take any question of their being so described any further in this judgment. I leave it there as it is a non-issue presently. The relevant proceedings of that date being rather terse and crucial in resolving this matter I set them out in full as follows:

“CA/E/30/2009

Between: Uyaemenam Nwora & Ors.

And

Nweke Nwabueze & Ors.

Parties absent.

The Registrar has issue (sic) a notice of non-compliance with the Rules and there is no pending application for departure from the Rules. The appeal is therefore struck out.

Sgd. V.A.G. Omage

JCA 3/3/09”

The above proceedings speak for themselves. The inference that arises therefrom is that the appeal against the decision of the Awka High Court in Suits No.AA/53/75 and AA/11/77 has been brought to a terminal end.

There is no answer to the situation created by the order of 3/3/2009 striking out the Notice of Appeal in this matter. This is so as the applicants herein have not appealed the decision and I take judicial notice of it and the fact that there is no appeal pending against it. It is trite law that a court is bound to take judicial notice of all the processes filed in a matter before it as the instant supplementary record. The authorities on this point are galore including Texaco Nig. Plc. V. Lukoko (1992) 6 NWLR (Pt.501) 761, Nwanosike v. Udose (1993) 4 NWLR (Pt.200) 684, Abrahim v. Olorunfemi (1991) I NWLR (Pt.165) 533 and Saraki v. Kotoye (2001) 48 WRN 1 at 350 also see Hubbard v. Vosper (1972) 2 Q.B.84 at 96 per Lord Denning. I have already made the point that there is before this court a supplementary record filed on 17/1/2009 from which is culled the foregoing abstract of the proceedings of 3/3/2009 before the court below.

This matter has raised an issue of jurisdictional competence. It is therefore, proper to dispose of that question first as to do otherwise may be particularly time wasting. And as alleged by the respondents being an order dealing with jurisdictional competence it stands to reason that no matter how well the cause is otherwise conducted it comes to naught if upheld and I agree. And rightly in my view, it would be a fruitless effort to go the whole objection in the face of such a fundamental vice as raised by the respondents that has clearly the profundity to destroy the main appeal, the substratum of the instant matter. See Egbe v. Adefarasin (1987) 1 NSCC (Vol.18) 1.

It is trite that where the substantive matter from which any other applications or appeals stem has been struck out or dismissed as the case may be then the said other applications or appeals on whatever based are liable to be struck out or dismissed equally, since the livewire connecting the two causes has been severed and there is no way those applications or appeals can survive it independently. There is also a pending appeal No.SC.418/2010 between the same parties in this court.

It cannot be doubted that the two sets of respondents in this appeal have to my mind by their objections raised a fundamental question that goes to the root of this appeal. In other words, if I may observe, there can be no essence in chasing the shadows of an already fatally flawed interlocutory appeal, as it were, by dealing with the merits of the other grounds of objection raised in the respondents’ statements of objection against it. This is so as here where the interlocutory appeal has been characterized on its peculiar facts as a process in academic exercise in that it is based on a subsisting order of the lower court in suit No.CA/E/30/2009 made on 3/3/2009 (not appealed against) by which the Notice of Appeal in the substantive appeal in the consolidated suits No.AA/53/75 and, AA/11/77, the very substratum sustaining the said interlocutory appeal now before this court has been struck out. There can be no justification in the circumstances of undertaking any further steps where the substantive objection as contemplated has challenged the jurisdictional competence of the court to entertain the cause.

The sum total of both sets of respondents’ contention rightly in my view is that the instant interlocutory appeal being no longer a live issue is not worthy of dissipating any energy upon. The said interlocutory appeal cannot therefore, stand on nothing as the rug has been pulled from underneath it. I agree that dealing with the said interlocutory appeal any further is an academic exercise. It has been completely pre-empted by striking out of the notice of appeal in suits No.AA/53l75 and AA/11/77.

It therefore bears to reiterate further that as per the supplementary record (which has not been challenged) filed in this court on 7/1/2010, that in compliance with the provisions of Order 8 Rule 1, the Assistant Chief Litigation Officer of the trial court has certified to the lower court that the appellants (i.e. the instant applicants) in the consolidated suits No.AA/53/75 and AA/53/75 have not complied with the requirements of Order 8 Rule 1. Hence, the order of 3/3/2009 striking out the appeal. And more importantly,there is no appeal against the order in CA/E/30/2009.

It is therefore to all intents and purposes a competent order made by the lower court. The effect of the order is that even if it were to be a nullity it is still a subsisting and valid order of a court of competent jurisdiction and it must therefore not be ignored or discountenanced without its being first set aside; it has not been set aside up till now. And as held in the case of Jimoh Akinfolarin & Ors. Vs. Solomon Oluwole Akinola (1994) 4 SCNJ 30 at 46: “An order or judgment of a court of competent jurisdiction remains valid and binding on the parties concerned and privies until it is set aside by due process of law. Accordingly it must enjoy the legal presumption of regularity and must remain valid and binding on the parties concerned and their privies until it is set aside by due process of law.” This court in the circumstances is bound to give effect to the said order, notwithstanding the applicants contention of not having been aware of the order.

Even then the supplementary record since filed in this court and served on them has brought that fact home to the applicants.

The position presently with regard to the said order is that it has not been appealed against nor set aside and so, it is binding on the instant parties concerned. I have taken this discussion to this height in view of the stance of the appellants/applicants as per paragraph 2.16 page 12 of their reply brief to the 1st and 2nd sets of respondents’ brief wherefore they have contended that and I quote “…………. If there was any such order at all – it is irrelevant to this appeal. It did not form part of the record of this appeal. This Honourable court cannot even look at it let alone using same as a basis or ground to sustain this objection.” Respectfully, I think the applicants have missed the point here and that is, that the order is still subsisting and binding on them and this court takes judicial notice of the order. I must say respectfully that by the foregoing stance of the applicants, they have also misconceived the purport of the Supplementary Record served on them, which they have not challenged in any manner whatever and its binding effect and that of the Ruling in CA/E/30/2007 on the instant parties concerned. Where as in the circumstances a party has not formally challenged a record of appeal be it the original or supplementary record by way of filing an affidavit; the court has the undoubted jurisdiction to look at those records of appeal before it in the matter – it binds the court and the parties. Otherwise on the peculiar facts of this matter this court bound by the supplementary record would be seen as labouring in vain in pursing this appeal any further.

It is trite law that the court ought not to make an order in futility or which serves only academic purpose as it will not affect the rights of the parties in the matter. Any order therefore in this appeal save of course of striking it out the interlocutory appeal will be futile and in vain as it will serve only academic interest. And as a trite principle of law, courts have no jurisdiction to make findings that are outside the record of appeal if I may reiterate. The supplementary record here bears out the fact that the interlocutory appeal has been struck out. And that has finally sealed this matter.

The stance taken in this matter on this point is further strengthened by the opinion of Achike JSC (of blessed memory) with which I agree where he held in Adelaja vs. Alade (1999) 6 NWLR (Pt.608) 544 that “all courts are enjoined to adjudicate between parties in relation to their competing legal interests and never to engage in a mere academic questions or argument or discourse no matter how erudite or beneficial it may be….” In other words, the competing interests of parties in a matter as the instant one must relate to live issues between the parties. See Union Bank v. Edonseri (1988) 2 NWLR (Pt.74) 93 and Julius Berger (Nig.) Ltd. V. Femi (1993) 5 NWLR (Pt.295) 612 at 563 paragraphs E-F. A crucial question upon which the above abstract is premised, is the question of the legal interests to be served by pursuing this matter any further – there is none. It is on this ground that I express the surprise that the applicants have doggedly taken this appeal thus far; as it lacks substance.

In the result, I hold the view that once the competing legal interests of the parties in an appeal have ceased to be live issues as I have found albeit with the striking out of the Notice of Appeal in Suits No.AA/53/75 and AA/11/77 in this matter; the instant interlocutory appeal in this court as per Suit No.SC.115/2009 ceases to have any real relevance or meaning and any further discourse of the appeal degenerates into mere exercise in futility and academic exercise which should not be the business of the court as any pronouncements on the instant interlocutory appeal will not affect the legal interests of the parties herein. See also Baker Marme (Nig.) Ltd. Vs. Chevron (Nig.) Ltd. (2006) 13 NWLR (Pt.997) 276 at 292, paragraph F.

In the final analysis these objections, if I may repeat,i have pulled the rug from underneath the instant interlocutory appeal, meaning that it has no leg any longer on which to stand in this court, I uphold the preliminary objections of both sets of respondents as eloquently articulated above by both senior counsel. Consequently, I hereby strike out this interlocutory appeal in its entirety as serving no further purpose and indeed an exercise in futility. I make no order as to costs.

Appeal struck out.

SC.115/2009(R)