Uyaemenam Nwora & Ors V. Nweke Nwabueze & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

On 12th November 1999, the Anambra State High Court, presided over by his lordship Obiora Nwazota, who was then the Chief Judge of Anambra State delivered judgment in consolidated suits Nos. AA/53/75 and AA/11/77 in which he granted declaration of title to the disputed land in favour of the 1st and 2nd sets of Respondents herein.

On the 18th of November 1999, the Appellants filed a notice of appeal against the said judgment at the Court of Appeal, Enugu Division. Thereafter the Appellants failed to take steps to transmit the record of appeal after they had applied for and were granted an order of stay of execution, until they were prompted by the 1st set of Respondents and the registrar of the trial Court, before they on the 31st of October, 2003 deposited the sum of ten thousand naira (N10,000.00) with the registrar of the trial Court for the preparation and compilation of the record of appeal.

On the 10th of February 2005, the lower Court, upon the application of the appellants ordered the Chief Registrar of the High Court Anambra State to compile and transmit the

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record of appeal in respect of the consolidated suits aforesaid to its registry within 30 days. The Chief Registrar in response to the order of the Court of Appeal wrote a letter dated 14th April, 2005 to the Deputy Chief Registrar of the lower Court in which he stated that all efforts made by him to trace the said record of proceedings in the consolidated cases did not yield the desired results. Following the Chief Registrar’s letter, the Appellants on the 11th October 2005, by a motion on notice prayed the lower Court to direct the Chief Judge of Anambra State High Court to re-assign to another Judge of the High Court the consolidated suits for trial de novo. The motion was heard and in a considered ruling same was struck out on the ground that the appeal had not been entered in the registry of the Court. Dissatisfied with the ruling, the Appellants appealed to this Court in appeal no. SC/115/2009.

In respect of the Notice of Appeal filed on the 18th November 1999 against the judgment of the trial Court that was delivered on the 12th November 1999 in the consolidated suits, the Registrar of the trial Court signed a certificate of

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non-compliance with the conditions of the appeal. On the 3rd of March 2009, the lower Court struck out the Appellant’s appeal no. CA/E/30/2009 for non-compliance with the conditions of the Appeal. Once again, the Appellants were dissatisfied and therefore appealed to this Court, in Appeal No. SC.418/2010.

On the 9th of December 2011, this Court struck out Appeal No. SC.115/2009 after learned counsel for respective parties had adopted their briefs of argument. On the 17th of May 2013, this Court in a unanimous decision allowed the Appeal No. SC/418/2010, set aside the certificate of non-compliance issued by the Registrar of the trial Court, nullified the judgment/ruling of the lower Court delivered on the 3rd of March 2009 in which it struck out Appeal No. CA/E/30/2009 for non-compliance with the conditions of appeal, and declared that the Appeal No. CA/E/30/2009 was still valid and pending in Court and therefore should be heard.

The 2nd set of Respondents, by a motion on notice filed on the 13th of June 2013, sought for an order of the lower Court to dismiss the Appellants Appeal No. CA/E/30/2009 which was adjudged to be valid and pending by this Court,

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for non-compliance with Order 8 Rule 4 of the Court of Appeal Rules 2011. Secondly the 2nd sets of Respondents asked the lower Court to vacate the Order of stay of execution made by the trial Court in its judgment which was delivered on the 12th November 1999.

By a motion filed on the 11th July 2013, the 1st set of Respondents also sought for the same orders.

The Appellants on their part filed a motion on the 19th September 2013 in which they sought for: –

“1. AN ORDER directing the Chief Judge of the Anambra State High Court to assign consolidated suits nos. AA/35/75 and AA/11/77 to a Judge of the Anambra State High Court, Awka Judicial Division for retrial or trial de novo.

2. AN ORDER directing accelerated hearing of the retrial/trial de novo of consolidated Suits Nos. AA/53/75 and AA/11/77.
3. AND FOR SUCH FURTHER ORDER OR ORDERS, as this Honourable Court may deem fit to make in the circumstance.”

All the motions were consolidated and heard together. In a reserved and considered ruling, delivered on the 27th June 2016, the lower Court (Coram, Oredola, Pemu and Agim JJCA) dismissed the Appellants’ motion on notice that

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sought for an order directing the Chief Judge of Anambra State High Court to assign the consolidated suit nos. AA/53/75 and in AA/11/77 to a Judge of the Anambra State High Court to be heard de novo, and granted the motion filed by the 1st and 2nd Sets of Respondents. The Appeal no. CA/E/30/2009 was dismissed for failure to compile and transmit the record of appeal to the lower Court. The order for stay of execution which was made in favour of the Appellants was accordingly vacated. The Appellant herein was asked to pay to each set of Respondents fifty thousand naira (N50,000) as costs.

Naturally the Appellants are dissatisfied with the decision of the Court of Appeal. Being aggrieved they quickly filed a notice of appeal on the same 27th of June 2016 against the ruling of the lower Court. The notice of appeal at pages 711 716 of the record of this appeal contains two grounds of appeal. The record of appeal was transmitted to this Court on the 22nd of July, 2016 and on the 11th of August 2016 the Appellants filed another notice of appeal in the registry of this Court, containing nine grounds of appeal. This notice of appeal was filed within the prescribed period.

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Parties filed and exchanged briefs of argument. Dr. Oladapo Olanipekun, SAN, learned senior counsel for the Appellant, leading Adetola Adeleke Esq, and Omolade Adeyemi Esq formulated four issues at page 5 of the Appellants’ brief of argument dated and filed on the 28th November 2016, but deemed filed on the 14th May 2018, for determination of this appeal based on the notice of appeal filed on the 11th August, 2016 as follows:-

“I. Having regard to the facts, circumstances and antecedents of this appeal, particularly the valid and subsisting order of the lower Court of 10 February, 2005; whether the lower Court was not in grave error when it interpreted and applied the provisions of Order 8 of the Court of Appeal Rules 2011 in placing the burden, responsibility and blame for the (non) compilation and transmission of the record of appeal from the trial Court to the lower Court on the appellants.

II. Whether the lower Court was not in grave error when, inspite of the express tenor of its order of 10 February, 2005 and the content of the letter from registry of the trial High Court dated 14 April, 2005, as well as the uncontradicted fact before it, it

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attributed the impossibility (sic, responsibility) of compiling and transmitting the record of appeal to the appellants’ negligence.

III. Having regard to the facts and circumstances of this appeal vis-a-vis the appellants’ constitutional right of appeal and fair hearing as enshrined in Section 241 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (Constitution) (sic) as well as the decisions of this honourable Court in FBN Plc vs May Medical Clinics (2001) 9 NWLR (Pt. 717) 28 and Engineering Enterprises Ltd vs Attorney- General of Kaduna State (1987) 2 NWLR (Pt. 57) 381, whether the lower Court was not in grave error, in refusing the appellants’ application dated 19 September 2013.

IV. Whether the lower Court was not in grave error and in so doing, acted without jurisdiction, when it set aside the order of the trial Court dated 14 December, 200, despite the absence of any appeal against same.”

Issue 1 is formulated from the 3rd and 4th grounds of appeal, while Issue 2 is formulated from the 5th and 9th Grounds of Appeal.

The 3rd issue is formulated from the 1st, 6th, 7th and 8th

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grounds of appeal, and the 4th issue is formulated from the 2nd ground of appeal. No issue has been formulated from the grounds of appeal contained in the initial notice of appeal filed on the 27th of June 2016. That notice is deemed abandoned. It is accordingly struck out.

Dr. J. O Ibik, SAN leading Namdi lbegbu SAN; O. J Ibike Esq; K. I Obiaozu Esq and C. M Ezeh Esq settled the 1st set of Respondents’ brief of argument. Learned counsel issued a preliminary objection to the competence of the Appeal at page 6 of the 1st set of Respondents’ brief of argument. The grounds of the objection read as follows: –

“(i) Unsustainability of Notice of Appeal Dated 27 June 2016.

(ii) Incompetency of the issues argued in the Appellants’ brief.

Learned senior counsel argued the preliminary objection at page 7-10 of their 1st set of Respondents’ brief of argument and went on to make what he termed “Further Response to substantive argument in the Appellants’ brief” without formulating issues for determination of the appeal. I therefore take it that the issues formulated by the learned senior counsel for the Appellants are adopted by the 1st set of

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Respondents in this appeal. Mr. J. N Egwuonwu, learned counsel for 2nd set of Respondents settled the 2nd set of Respondents’ brief of argument which was filed on the 21st June 2017, but deemed filed on the 14th May 2018.

Learned counsel formulated four issues for determination of this appeal as follows: –

(i) Whether the appellants discharged the mandatory duty of compiling and transmitting the record of appeal to the lower Court after the Registrar of the High Court of Anambra State failed and neglected to do so.

(ii) Whether the lower Court denied the Appellants the right of fair hearing in all the circumstances of this appeal.

(iii) Given the peculiar facts and circumstances of this appeal, whether the lower Court was not right to have dismissed the Appellants application dated 19th September, 2013.

(iv) Having dismissed the substantive appeal, whether the setting aside of order of stay of execution of the judgment of the trial Court was not proper in the circumstances.

Learned senior counsel for the Appellants filed a reply brief to the 1st Respondent’s brief of argument on the 10th of May 2018. The reply brief was deemed properly filed and served

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on the 19th November 2018. Learned senior counsel also filed a reply brief to the 2nd set of Respondents brief of argument on the 11th May 2018 same was also deemed properly filed and served on the 14th May 2018.

Before I take further step in this appeal, I have a duty to determine the preliminary objection to the hearing of this appeal by Dr. J. O. Ibik, SAN, learned senior counsel for the 1st set of Respondents.

In arguing the preliminary objection, learned senior counsel submitted that the Appellants’ failure to file their notice of appeal in the registry of the lower Court as required by Order 8 Rule 2 of the Supreme Court Rules undermines the jurisdiction and competence of this court to entertain the appeal. According to the learned senior counsel, the notice of appeal filed on the 11th August 2016 in the registry of the Supreme Court does not form part of the record of this appeal and therefore it is not properly placed before the Court. ln a further argument, learned senior counsel submitted that this Court can only hear appeals on the processes contained in the record of appeal, and since the extant notice of appeal did not form part of

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the record of appeal that was transmitted to the Supreme Court, this Court is precluded from acting on it. ln aid learned counsel cited Madukolu vs Nkemdilim (1962) 6 SCNLR 341.

Learned senior counsel for the Appellant in reply to the objection, submitted that the reason for filing the extant notice of appeal at the registry of the Supreme Court is that the appeal had already been moved from the lower Court to the Supreme Court as a result of the transmission of the record of appeal. According to the learned counsel after the record of appeal has been transmitted, all processes concerning the appeal are to be filed at the Supreme Court, since the Court of Appeal would have lost jurisdiction to entertain any process. In aid learned counsel cited Dingyadi vs INEC (2011) 10 NWLR (Pt. 1255) 347 at 395; Adeleke vs Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50 at 82 paras B-C; VAB Petroleum INC vs Mr. Mike Momah (2013) LPELR 19770 (SC); SPDCN Ltd vs Agbara (2016) 2 NWLR (Pt. 1496) 353 at 412; Odom vs PDP (2015) 6 NWLR (Pt. 1456) 527 at 555.

The filing of a notice of appeal at the lower Court is merely a

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procedural convenience which is put in place in order to reduce congestion at the Supreme Court registry and to relieve litigants from the hardship they will encounter by travelling from various parts of the country to Abuja to file the notice of appeal. Even when the notice of appeal is filed at the Court of Appeal it is titled ‘In the Supreme Court of Nigeria, Holden at Abuja”. It is therefore a process of this Court which ordinarily should be filed in the registry of this Court. The fact that Order 8 Rule 2(7) of the Supreme Court Rules provides for the filing of the notice of appeal at the registry of the lower Court, does not take away the jurisdiction of this Court. Jurisdiction of this Court to hear appeals from the Court of Appeal is donated by Section 233 (1) of the Constitution and cannot be taken away, merely because an appellant has filed his notice of appeal at the registry of this Court. This Court emphatically rejected a call to decline jurisdiction because a notice of appeal was filed in the registry of this Court in Odom vs PDP (supra) where Muhammad, JSC held: –

“It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned

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appellants/cross respondents counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being rules of procedure, they do not themselves, and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction the constitution or the statutes vests in the Court. Unless it is expressly stated that non-compliance with the rules particularly renders a cause incompetent, the Court’s preoccupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve. In the case at hand, appellants/cross respondents preliminary objection, given the fundamentality of the cross appellant’s right of appeal as guaranteed by the constitution, cannot be given the effect the appellants/cross respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross/appellant’s right of appeal. After all, Rules of Courts have never been the source of the Court’s jurisdiction. This Court will not

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abandon its jurisdiction because of the cross-appellants non-compliance with the rules which require that the appeals be filed at the lower Court. The Rules are in place to regulate practice of the Court in the exercise of the jurisdiction the constitution confess on it. These Rules should not provide the means of compromising the Appellant’s right of appeal as conferred by the constitution.”

See Ogunremi vs Dada (1962) 1 ALL NLR 663 at 671. I entirely agree and associate myself with my learned brother, Muhammad JSC, provided the notice of appeal is filed within the prescribed period allowed for filing of appeal. I am also in agreement with learned senior counsel for the Appellant who submitted that after the appeal was entered in this Court, the lower Court no longer had jurisdiction to accept papers relating to the appeal. The proper venue was the Supreme Court and the Appellant was right to have filed the notice of appeal in the registry of this Court.

The preliminary objection by learned senior counsel for the 1st set of Respondents fails and it is hereby overruled.

Having thus resolved the preliminary objection, I will now proceed to consider the appeal. In arguing the

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first issue for determination of this appeal, learned senior counsel for the Appellants submitted that Order 8 of the Court of Appeal Rules is inapplicable to this case and the lower Court acted in grave error when it relied on the said Order 8 of the Court of Appeal Rules 2011 in dismissing the Appellants’ appeal. Learned counsel submitted that the Court of Appeal Rules came into force on 1st April, 2011, while the notice of appeal that originated the proceedings before the lower Court was filed on the 17th November, 1999, the application in which the Appellant sought for an order directing the registrar of the trial High Court to compile and transmit records was filed on the 25th October, 2004, the order of the lower Court of 10th February, 2005, directing the registry of the trial Court to compile and transmit the records within 30 days, the registry’s letter emphasizing the impossibility of compiling and transmitting records as well as the Appellant’s application filed on 11th October, 2005 in which they sought for an order directing the trial Court to hear the case de novo and accelerated hearing of the suit all preceded 1st April, 2011, when the Court of

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Appeal Rules came into force. In a further argument, learned senior counsel submitted that the issues of compilation and transmission of the records of appeal is the substantive issue and the cause of action for the purposes of the Appellants’ application filed on 19th September, 2013 as such the law applicable is the law enforceable at the time the cause of action arose. In aid learned counsel cited Obiuweubi vs C.B.N (2011) ALL FWLR (Pt. 575) 208 at 230 231; Daily Times (Niq) Plc vs D.S.V Ltd (2014) 5 NWLR (Pt. 1400) 327 at 359; Arowolo vs Akaiyejo (2011) 4 NWLR (Pt 1290) 286 at 307. Still in argument, learned senior counsel submitted that the issues relating to the Appellants’ application before the lower Court are not procedural, but substantive issues relating to the exercise of the right of appeal and of fair hearing which in the main are constitutional. In aid learned counsel cited Rossek vs ACB (1993) 8 NWLR (Pt. 312) 382 at 439. On the status of the lower Court’s order of 10th February, 2005, directing the registry of the trial Court to compile and transmit the records within 30 days, learned senior counsel submitted that, that

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order remains valid and subsisting and it placed the responsibility for the compilation and transmission of the records on the registry of the trial High Court, in line with the provision of the Court of Appeal Rules 1981 which was the rule that was in force at the material time.

It is the contention of the learned senior counsel that the rules of Court are handmaids of justice and should not be applied to clog the wheels of justice. In aid learned senior counsel cited Ogwe vs IGP (2015) 7 NWLR (Pt. 1459) 5050 at 529.

Learned counsel urged this Court to hold that the Order of 10th February, 2005 created issue estoppel which is binding on both the Courts and the parties. In aid learned senior counsel cited APC vs PDP (2015) 15 NWLR (Pt. 1481) 1 at 102 103; Dim vs Enemuo (2009)10 NWLR (Pt. 1149) 353 at 389 390; Shanu vs Afribank (Nig) Plc (2003) ALL FWLR (Pt. 136) 823 at 850- 852. Learned senior counsel in a further argument, submitted that the lower Court was therefore not entitled to reopen the issue relating to the compilation and transmission of the records and to retrospectively apply the provisions of Order 8 of the Court of

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Appeal Rules 2011 in order to re-allot responsibility for compiling and transmission of the records.

Finally learned counsel urged this Court to hold that there is no provision made in Order 8 of the Court of Appeal Rules for a situation where it has become impossible to compile and transmit the record. In conclusion learned counsel urged this Court to resolve the issue in favour of the Appellant.

In their argument, learned senior counsel for the 1st set Respondent and the learned counsel for the 2nd set Respondents submitted that there is a world of difference between the law as to the cause of action and the rules of procedure that apply to proceedings during the hearing of a matter. They argued that it is the law in existence at the time a cause of action arose that determines the cause of action, as opposed to the rules of procedure, where the Courts apply the existing rules at the material time when the case is heard and not the rules which existed at the time the cause of action arose. In aid learned counsel for the two sets of respondents cited Olaore vs Oke (1987) 4 NWLR (Pt. 67) 769; Owata vs Anyigor (1993) 2 NWLR (Pt. 276) 380 at 391 paras G – H;

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Nwora vs Nwabueze (2013) 16 NWLR (Pt. 1379) 1 at 21 22 paras F A. I agree with the learned senior counsel and the learned counsel for the Respondents that the rules of procedure applicable to the hearing of any matter is the existing rules of procedure at the time of the hearing of the case and not the rules of procedure that existed at the time the cause of action arose.

This is the position this Court has adopted in a myriad of decided cases. In Owata vs Anyigor (supra), this Court clearly stated the position of the law as follows:-

“It seems to me that Chief Ezeofor’s contention is founded on the well settled law that the action is governed by the law applicable and in force at the time the cause of action arose. In this proposition he is on firm ground. All the decided cases cited and relied upon by Chief Ezeofor were decided on this principle. It is however not the same principle when the procedure governing the action is being considered. There is a clear distinction between the substantive law applicable and the rule of law governing practice and procedure. It is similarly well settled that the rule governing practice and procedure is

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the rule in force at the time of the trial or the application is heard. Unless there is any provision to the contrary. This is based on principle that there is no vested right in any course of procedure. See Costa Rica vs Erlanger (1874) 3 Ch.D.89. A litigant has the right to rely on the procedure prescribed for the time being, where the procedure is altered, he must proceed according to the altered manner.”

In Nwora vs Nwabueze (supra) this Court, per Mohammed JSC (as he then was) restated the position of law as follows:-

“The law is well settled that an action is governed by the substantive law applicable and in force at time the cause arose. See Agbajo vs Attorney General of the Federation (1986) 2 NWLR (Pt. 23) 528 and Savannah Bank of Nigeria Ltd vs Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt. 49) 212. In the same vein, it is also settled that the rule governing practice and procedure in an action or in an application, is the rule in force at the time of the trial of the action or at the time the application is heard, unless there is any provision to the contrary.”

These decisions have the backing of Section 243 (b)

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of the Constitution of the Federal Republic of Nigeria 1999 which stipulates that any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be exercised in accordance with any act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. It is so clear that the “rules of Court for the time being in force,” means the Rules of court in force at the time of adjudication.

Learned counsel for the Appellant seems to confuse what cause of action is and how substantive and procedural laws are applied in matters before the Courts. Cause of action is defined by Black’s Law Dictionary 9th edition as a group of operative facts giving rise to one or more bases for suing. The Appellants first application in which they sought for an order directing the Chief Registrar to compile and transmit the record of appeal, and the subsequent application for an order to compel the Chief Judge of Anambra State High Court to assign the claim of the Appellants to another judge for trial de novo were not claims against

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any party, as such none constituted a cause of action that required the application of any substantive law. In A.G Lagos State vs Eko Hotels Ltd & Anor (2006) LPELR 3161 (SC) (2006) 18 NWLR (Pt. 1011) 378 this Court, per Onnoghen JSC (as he then was) defined cause action at page 438 paragraphs E F as follows: –

a cause of action consists of every fact which it would be necessary to prove, if traversed, in order to support his claim for judgment and that the accrual of the cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. It is very clear from a community reading of decision of the Courts on the issue that cause of action always deals with events in the immediate past, not in the future.”

It is generally the claim of the plaintiff that determines the cause of action between the parties. See Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1. In the instant case, the Appellants’ grievances are centered around their consolidated appeals and compilation and transmission of the record of appeal which are essentially procedural

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matters. These matters were never causes of action between the parties in the appeal. The cause of action as between the parties had been adjudicated upon at the trial Court. The record of appeal had not been transmitted to the Court of Appeal, as such the lower Court could not have had jurisdiction to determine a matter that had not been placed before it.

Learned senior counsel for the Appellants insisted that the lower Court’s order of 10th February 2005 in which the Chief Registrar of the trial Court was directed to compile and transmit record within 30 days remain valid and subsisting and that, that order had placed the responsibility of compiling and transmission of the record on the Registry. It is his view that the Court of Appeal Rules 2011 is subordinate to that order. This is clearly a misunderstanding of the issues involved in this case. That directive of the lower Court was limited to 30 days, and after 30 days, the Order had become spent. The only option at this stage was to visit sanction on the erring Registrar who failed to obey the Court Order. The Registrar had properly explained why he could not obey the Court’s Order, and that must have been the

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reason for the Court’s failure to sanction him. The Order of the Court that had become spent 30 days after it was made in 2005 cannot be superior to the Court of Appeal Rules 2011, and same cannot be valid and subsisting.

The Appellants’ first application at the lower Court in 2004 for an order directing the Chief Judge to assign the consolidated suits to another Judge for hearing de novo, was rightly in my view struck out, as there was no record placed before the lower Court to enable it determine the application. In Dingyadi & Anor vs INEC & Ors (2011) 10 NWLR (Pt. 1255) 347 per Adekeye JSC stated at page 395 paras C -D as follows: –

“Where an appeal has been entered the effect is that, the appellate Court which has received the record of appeal is said to be seized of the whole proceedings in the sense that the res in the appeal has automatically passed into the custody of the said appellate Court.”

See also Ogunremi vs Dada (1962) 2 SCNLR 417; Ezeokafor vs Ezeilo (1999) 9 NWLR (Pt. 619) 513. It is therefore very clear that where appeal has not been entered at the appellate Court, that appellate Court will have no

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jurisdiction to entertain any applications concerning the appeal, except as provided by the rules of the Appellate Court or any other enabling law. Order 4 Rule 10 of the Court of Appeal Rules 2011 provides that an appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the registry of the Court. Order 4 Rule 11 of the same Rules states as follows: –

“After an appeal has been entered and until it has been disposed of, the Court shall be seized of the whole of the proceedings as between the parties, thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court below, but any application may be filed in the Court below for transmission to the Court.”

In Stanbic IBTC Bank vs Long Term Global Capital Ltd & Anor (2016) LPELR 4051 (CA) it was held: –

“Before an application for stay of execution, proceedings or for injunction pending appeal becomes competent, an appeal against the decision sought to be stayed must have been entered in the Court. It will be an error to grant an injunction pending an appeal

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when there is no competent appeal against the decision sought to be stayed.”

In Biocon Agrochemicals Nig Ltd & Ors vs Kudu Holdings PTY Ltd & Anor (1996) LPELR 783 (SC) this Court, per Kutigi JSC (as he then was) held: –

” that the true position here now is that this Court has already received the record of appeal compiled by the Appellants/applicants and the appeal having been entered in the cause list; any application thereof including applications for stay of proceedings should be made direct to this Court.”

The effect of these pronouncements by the Court of Appeal and this Court clearly shows that applications in the appeal can only be filed and determined in the appellate Courts, only if the appeal is entered. The application to direct the Chief Judge of Anambra State High Court would have been appropriately commenced at the trial Court where the appeal was still domiciled, A refusal would have given the Appellant the right of appeal. While the appeal against the refusal to direct the Chief Judge to assign the case to another Judge was pending in this Court, the Assistant Chief Registrar’s certificate of non-compliance with conditions of appeal dated

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27th January, 2009 moved the Court of Appeal to strike out the substantive appeal on the consolidated suit. The Appellants appeal against the striking out of the Appeal against the decision on the consolidated suit was allowed by the Supreme Court and the substantive appeal was reinstated.

On the 19th of September, 2013, the Appellants’ instead of pursuing their appeal which was reinstated, filed an application at the Court of Appeal in which they sought for an order directing the Chief Judge of Anambra State to assign the case to be heard de novo and accelerated hearing of the case. The two sets of respondents filed applications dated 13th June, 2013 and 11th July, 2013 respectively praying for an order dismissing the appeal for failure to compile and transmit record of appeal under Order 8 Rule 18 of the Court of Appeal Rules, as well as vacating the Order for stay of execution granted by the trial Court.

The lower Court rightly in my view refused to grant the application to order the trial Court to hear the consolidated case de novo. There was no material before the lower Court upon which it would have exercised its jurisdiction to grant

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the application, since the appeal had not been entered.

By Order 8 Rule 4 of the Court of Appeal Rules 2011, 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 records 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 registrars failure or neglect. The Appellants in this case filed their appeal on the 18th of November, 1999 and as at the time the applications to dismiss the appeal were filed on the 13th of June 2013 and 11th of July 2013, the cumulative period of the Registrar and the Appellants within which to compile and transmit the records of appeal had elapsed.

By Order 8 Rule 18 of the Court of Appeal Rules 2011, the appeal was liable to be dismissed at the instance of the Respondents’ application by motion on notice. The Respondents did apply for the appeal to be dismissed and the lower Court had no option as the period between the time

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the appeal was filed and when the applications for its dismissal were filed is staggering and there was no evidence that the records would be compiled and transmitted within a reasonable period. It was not the business of the lower Court to know why the records were not available, since there was no record before it, to guide which direction it would take.

An Appellate Court can order as a last resort, for a retrial of a case if part or portion of the record transmitted to it is lost and all effort to trace it failed. Where the parties agree that the portion of the record that is missing is inconsequential, and that the hearing of the appeal cannot result in miscarriage of justice, the Court can hear the appeal on incomplete record. However where no record is transmitted at all, as in this case, all applications including application for the case to be heard de novo must be made to the trial Court where the appeal is domiciled. An appellate Court will have no materials upon which it will assume jurisdiction in the appeal. I therefore find nothing wrong with the decision of the lower Court in refusing the application for an order of trial de novo and for dismissing the pending

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appeal before it for failure to compile and transmit the records of appeal after fourteen years of filing the appeal.

Where an application to hear the case de novo is made before the trial Court, that Court must first of all set aside its judgment before making an order for trial de novo. This is to avoid any confusion that may arise if subsequently the lost judgment is found. A situation will arise where there may be two competing judgment, especially where there is variation in the latter judgment. The question now is whether the trial Court is competent to set aside its judgment

As a general rule, every Court of record has inherent jurisdiction, on application, and in appropriate cases and circumstances, to set aside its judgment or decision. This jurisdiction may be exercised, where for instance, the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid. See Alao vs ACB Ltd (2000) 2 SCNQR 1067 at 1071; Omokewu & Ors vs Abraham Olabanji & Anor (1996) 3 NWLR (Pt. 435) 126; Skenconsult (Nig) Ltd vs Ukey (1981) SC 6.

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In the instant case there is in place what I may call “force major”, an unexpected occurrence which has the capacity to defeat even the enforcement of the judgment obtained at the trial Court in the two consolidated suits. It follows therefore if nothing is done, there will be a total failure of justice. The loss of the record of the appeal is a factor that has in my view vitiated and rendered the judgment invalid. Is there a way of enforcing the judgment in absence of the record of the case This is what may unfold later. I think it is in the best interest of the parties to go back to the trial Court and sort out this mess.

The first issue is resolved against the Appellant and in favour of the 1st and 2nd sets of Respondents

In arguing the second issue, learned counsel for the Appellant still made so much issue on whose responsibility it is to compile and transmit the records of appeal. In my consideration of the first issue for determination of this appeal, I extensively dealt with the points canvassed by learned counsel on this issue. It will amount to a repetition to embark on the consideration of this issue. The order of 10th

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February, 2005 and other processes have been given the required attention. Suffice it to say that the issue is resolved against the Appellant.

On the 3rd issue for determination of this appeal, learned senior counsel for the Appellant submitted that the lower Court, by its ruling, effectively breached and abrogated the Appellants’ right of appeal, and by extension, their right to fair hearing, by making use of the rules of Court. It is learned senior counsel’s argument that appeal being a constitutional right, cannot be denied to a party by using the provision of the rules of Court. In aid learned counsel cited FBN Plc vs May Med. Clinics (2001) 9 NWLR (Pt. 717) 28 at 39 and Engineering Enterprises Ltd vs Attorney General of Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 391.

Finally learned senior counsel submitted that the decision of the lower Court violates the Appellants’ right to fair hearing and of appeal, learned counsel urged this Court to hold that the said decision is a nullity. ln aid the authorities in FCSC vs Laoye (1989) 2 NWLR (Pt. 106) 652 st 699; Danladi vs Dangiri (2015) 2 NWLR (PT. 1442) 124 at 176; and

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Etsako West LGC vs Chritopher (2014) 14 NWLR Pt. 1426) 73 at 94 were cited and relied upon. Also relying on Dalhatu vs Turaki (2003) 15 NWLR (Pt. 843) 310 at 336; and Atolagbe vs Awuni (1997) 9 WLR (Pt. 522) 536 at 561, learned counsel contended that the decision of the lower Court should not stand, giving its breach of Section 287 of the Constitution and the entrenched doctrine of stare decisis. In conclusion learned senior counsel urged this Court to resolve this issue in favour of the Appellant.

I have held elsewhere in this judgment that the rules applicable at the hearing date of a matter is the prevailing rule at the time of hearing and not the rule applicable at the time the matter was filed. Rules of Court are dynamic and they are issued from time to time in order to cure certain acts of mischief by litigants. In this matter, the appeal was filed on the 18th November, 1999. The Appellants applied for and obtained a stay of execution of the judgment that had adjudged them trespassers on a piece of land, upon which title was declared in favour of the two sets of respondents. Thereafter the Appellants stayed away from the trial Court and refused to take steps to fulfil the

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condition of the appeal for four years until on the 31st of October, 2003 when they deposited the sum of N10,000 on the prompting of the Respondents who wrote and complained to the Chief Registrar about the Appellants’ failure to take steps to prosecute the appeal. Clearly this is the kind of mischief that was intended to be cured by Order 8 Rule 4 of the Court of Appeal Rules 2011. Rules of Court are meant to be obeyed as they have the force of law, and where there is no compliance with the rules of Court, sanctions prescribed for their breach must be invoked. Such invocation of sanctions prescribed by the rules of Court does not constitute a breach of fair hearing to any of the parties to the action. Even where the registrar of Court bears the burden of compiling of record, the appellants must take time to find out the status of his appeal, where the prescribed time for compilation and transmission of record has elapsed. Appellant who fails to do so is either negligent or he is acting deliberately to prevent the successful party from reaping the fruit of the judgment. No reasonable tribunal will allow that to happen.

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Learned counsel for the Appellant has argued that the decision of the lower Court occasioned a gross violation of the Appellants’ rights to fair hearing and of appeal. This is an unfair criticism of the decision of the lower Court. Fair hearing is defined by Black’s Law Dictionary 9th Edition at page 789 as a judicial or administrative hearing conducted in accordance with due process. In INEC vs Musa (2003) 3 NWLR (Pt. 806) 72 at 195 para H, this Court defined fair hearing thus:-

“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles”.

In the instant case there was no evidence that the Appellants were denied the opportunity to be heard. The opportunity available to them was to be exercised in accordance with the rules of procedure at the lower Court. They failed to submit themselves to the rules of the Court, as such they cannot blame anybody for their predicament.

The decision in Engineering Enterprises Ltd vs Attorney General of Kaduna State (1987) 2 NWLR (Pt. 57) 381 at

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391 in which this Court laid the responsibility of compiling and transmission of the record of appeal to the registry of the Court of Appeal on the registrar of the trial Court alone was decided under the 1981 Court of Appeal Rules and the decision in FBN Plc vs May Med. Clinics (supra) was delivered under the 2002 Court of Appeal Rules which did not have provisions that donated responsibility to the Appellants to compile and transmit record of appeal, Order 8 Rule 4 of the Court of Appeal Rules 2011 makes it mandatory for the Appellant to compile and transmit record of appeal, where the registrar fails or neglected to do so.

This is what the rule says: –

“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 records 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 this Appeal and transmit to the Court within 30 days after the Registrar’s failure or neglect.”

Handbook on the construction and interpretation of the laws (1896) at page 334; states as follows:-

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“A provision in a statute is said to be mandatory when disobedience to it, or want of exact compliance with it, will make the act done under the statute absolutely void.”

Although the constitution has given every aggrieved person the right to appeal, such appeal must be prosecuted in accordance with due process. These processes are put in place for speedy and orderly disposal of these appeals. Where appeals are not prosecuted in line with due process it is liable to be struck out. Learned senior counsel ought to know that the Court of Appeal had limitation in entertaining most of the applications that were brought before it since the appeal had not been entered in that Court, yet he chose to go to that Court instead of going to the trial Court. He had himself to blame for the outcome of what transpired at the Court of Appeal. This issue is resolved against the Appellants and in favour of the 1st and 2nd Sets of Respondents.

The law concerning the 4th issue for determination of this appeal is very elementary. It will appear learned senior counsel for the Appellant is making issue out of nothing.

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Learned senior counsel’s argument is that the lower Court has no jurisdiction to set aside the order of stay of execution granted by the trial Court on 14th December, 2000. According to the learned senior counsel, the Respondents’ appeal against the order of stay of execution was on the 5th of November, 2004 dismissed by the lower Court. This being so learned senior counsel contended that the order of stay of execution remains valid as the decision in which the appeal against it was dismissed has not been set aside. In aid learned counsel cited and relied on the authorities of Michael vs State (2008) 5 SC (Pt. 11) 203 at 210; Opara vs Schlumberger & Anor (2006) 7 SC (Pt. 111) 56 at 70. Learned senior counsel then urged this Court to hold that the respondents’ applications to the lower Court to have the stay of execution set aside and the lower Court’s decision granting the applications, constitute a gross abuse of Court process.

The Appellants’ Application for stay of execution of the judgment of the trial Court contained the following prayers: –

“An order staying execution of the judgment of this Court in this consolidated suit delivered on Friday, the

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12th day of November, 1999 pending the determination of the appeal lodged against same by the herein applicants”.

By the contents of the application, a grant of the prayer was dependent on a pending appeal against the decision of the trial Court in this case. The trial Court that heard it, granted same in the following terms: –

“In the result, this application for stay of the orders for trespass and injunction succeeds and is accordingly granted. All the parties in the consolidated suits are hereby bound over to maintain peace in the area of the disputed land pending the determination of the appeal or until otherwise ordered by the Court of Appeal”.

It is an elementary but fundamental principle of our adversary system that an applicant is bound by the prayers in his motion. See A.C.B Ltd vs A.G Northern Nigeria (1969) N.M.L.R 321. In the instant case, the Appellants having asked for stay of execution pending the determination of appeal, cannot be heard to argue that the stay of execution is still valid and subsisting after the appeal which they referred to had been determined. The order of stay as reproduced above had no chance of surviving the appeal. See

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Arojoye vs UBA (Nig) Ltd & Anor (1986) 2 NWLR (Pt. 20) 101; NBN Ltd vs N.E.T Ltd (1986) 3 NWLR (Pt. 31) 667 at 670.

An order for stay of execution of judgment cannot be made in vacuum as it cannot stand alone. An order of stay of execution pending appeal only prevents the beneficiary of a judgment or order from putting into operation the machinery of the law, the legal process of warrants of execution pending the determination of appeal. See Okoya & Ors vs Santilli & Ors (1990) LPELR 2504 (SC).

With the dismissal of the Appeal No. CA/E/301/009, even if nothing was said about the order of stay of execution, that order stood vacated. I am therefore surprised that learned senior counsel has argued forcefully that the order remains valid and subsisting and that the lower Court had no jurisdiction to vacate same. Clearly when the appeal was dismissed, there was nothing upon which the order of stay could be situated that could make it stand. Pronouncement of their lordships that the order of stay was vacated was just a mere formality which the lower Court had absolute jurisdiction to so pronounce.

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The learned senior counsel’s argument that the Respondent’s applications to vacate the order of stay of execution of judgment and the Court’s ruling constituted an abuse of Court process, is clearly misconceived. The ruling or judgment of a Court could contain errors of law or facts, but itself cannot constitute an abuse of Court process.

It could be an abuse of Court process, if someone collects a copy of the ruling or judgment and uses it improperly before another Court against another person, primarily to accomplish a purpose for which it is not designed. Abuse of Court process is an improper or tortious use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the scope of the process. I do not see how, by any stretch of imagination, the ruling of the lower Court could be termed an abuse of Court process. The application for the vacation of the order of stay of execution were made consequent upon the dismissal of the appeal, and to that extent, they did not in anyway constitute an abuse of Court process. Those applications were based on the Court of Appeal Rules and so I hold. This issue is resolved against the Appellants and in favour of the Respondents.

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Having resolved the four issues formulated for determination of this appeal by the Appellants against them, this appeal shall be and it is hereby dismissed. The Appellants are ordered jointly to pay to each set of the Respondents five hundred thousand naira (N500,000.00) as costs of prosecuting this appeal.

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SC.589/2016