Chief Micheal O. Owope V. Ben Osanibi & Ors (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the judgment of Honourable Justice H.A. Olusiyi and Hon. Justice S.K. Otta, of the High Court of Kogi State, Holden at Kabba, sitting in its appellate jurisdiction, delivered on the 9th of July, 2004, whereby the court set aside the decision of the trial court and ordered a retrial by the Upper Area Court, Isanlu, Kogi State.
The trial court was the Upper Area Court Iyara in Kogi State wherein the Respondents as plaintiffs filed a writ of summons against the Defendants now Appellants. The Respondent’s claim was dismissed and judgment entered in favour of the Appellants. The Respondent therein appealed to the Appellate session of the High Court of Kogi State sitting at Kabba. The High Court heard the appeal set aside the judgment of the upper Area Court Iyara, Kogi State and ordered a retrial denovo before the Upper Area Court Isanlu, Kogi State,
The Appellants dissatisfied with the decision of the High Court entered appeal before this Honourable Court, with the leave of this court granted on 23rd February, 2005. The Appellant filed seven grounds of mixed law and facts vide a Notice of Appeal dated 3rd March, 2005.
The facts of this case briefly stated are as follows; the appellants were Defendants at the trial court, which is the Upper Area Court Iyara, Kogi State, where the plaintiffs, now Respondents in this Appeal, sued for the following on behalf of the Irasi Family:-
- N3, 000 damages for trespass committed by the Defendants on the plaintiffs’ Afo-Aiyedun farm land.
- An order of court restraining the Defendants, his servants or agents and members of his family from further trespass into the plaintiffs’ farm land in, Afo-Aiyedun at Otu near Kabba and further dealing with the said farm land.
- N1, 800 being the value of palm fruits harvested by the Defendants.
The plaintiffs called 4 witnesses, and parties tendered Exhibits. After the close of the case of the parties, the court visited the Locus-In-quo and thereafter the counsel submitted written addresses.
The Trial Upper Area Court dismissed the claim of the plaintiffs and held that the Defendants established a better title to the land in dispute.
Dissatisfied with the Judgment of the Trial Upper Area Court, the plaintiff appealed to the High Court of Kogi State, sitting at Kabba. The plaintiffs filed one original ground of appeal and by the leave of the Court filed two (2) additional grounds of Appeal on 24/09/03.
The grounds of appeal filed by the plaintiffs at the Lower Court are:
ORIGINAL GROUND 1:
The Decision of the Trial Upper Area Court is unnecessary, unwarranted and cannot be supported, having regard to the weight of evidence adduced.
ADDITIONAL GROUND 1:
The President and Members of the Trial Upper Area Court erred in law when they failed to comply with the Rules of Natural justice in their adjudication over the case and thereby occasioned a miscarriage of justice.
ADDITIONAL GROUND 2:
The entire proceedings at the- Trial Upper Area Court is a nullity, in that the court was not properly constituted as regards the number of members of the panel.
The plaintiffs argued, only additional ground (2) and abandoned original ground one (1) and additional ground one (1). The Lower Court set aside the Judgment or the Trial Upper Area Court on the ground that the court was not properly constituted as regard membership and therefore acted without jurisdiction. The court ordered a retrial de novo before Isanlu upper Area Court.
Upper Area Court.
Dissatisfied with the order of setting aside made by the Lower Court, the Appellants have vide a Notice of Appeal filed on the 4/3/05, filed seven (7) of Grounds of appeal and have raised five (5) issues for determination in this appeal before this Honourable Court.
The Grounds of Appeal without their particulars are hereby reproduced:
GROUNDS OF APPEAL
- The learned trial judges erred in law when they refused to take judicial notice of the special warrant as contained in the Courts Ruling of 24/9/2003.
- That the lower court erred in law when it held that the Ruling of 24/9/2003 was by a different panel in not relying on the ruling as it had ruled that it would take Judicial Notice of the special warrant.
- That the lower court erred in law in accepting the ruling for the purpose of additional grounds of appeal and rejected same for the purpose of taking Judicial Notice of the special warrant issued by the Hon. Chief Judge of Kogi State for the purpose of permitting Hon. Obasanju to participate in the Upper Area Courts proceedings after his transfer .
- The lower court erred in law when it overruled itself suo motu without calling on the counsel on both sides to address it on same and therefore occasioned a miscarriage of justice and breached the Appellants’ right of fair hearing.
- That the lower court erred in law when it held that the special warrant was not made part of the record of proceedings and not also properly tendered before it as no Certified True Copy was tendered before it.
- That the lower court misdirected itself in law and in fact when it relied on the cases of SULE A SUPAKA v. YAKUBU ONUKABA (2001) FWLR; NNAJI Vs EJEH (1981-82) BNLR 8; CHIEF OBADERO v. OBAJADU (1974) NNLR 164. when the facts of the cases are not the same and could be distinguished.
- That the judgment is clearly against the weight of evidence.
In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellants’ brief settled by Anthony Eghieye Esq., five (5) Issues were raised for determination of the appeal namely:-
- Whether or not the lower court was right in overruling itself or whether the court can sit as Appeal court on its own decision as to the point, whether the court can take judicial notice of the special warrant Issued by the Chief Judge of Kogi State as contained in the Court’s Ruling of 24/9/03.
ii. Whether or not the lower court was right in law in accepting the Ruling of the Court of 24/9/03 for one purpose and rejected the same Ruling for another purpose.
iii. Whether or not the Ruling of the same court or of a court of co-ordinate jurisdiction constituted differently is not binding on the same court.
iv. Whether or not the lower was right in holding that the special warrant was not made part of the record of Appeal and not properly tendered before it as no Certified True Copy was tendered even though the original copy of the special warrant was before the court.
v. Whether or not the lower court did not misdirect itself in fact and in law when it relied on the cases of SULE A SUPAKA VS YAKUBU ONUKABA (2001) FWLR 159; NNAJI VS EJEH (1981-82) BNLR 8; CHIEF OBADERO VS OBAJADU (1974) NNLR 164, as to how a Quorum of the court is constituted.
The Respondents’ brief, settled by Ayo Jonathan, Esq., formulated two (2) issues for determination to wit:-
1) Was the High Court Right in setting aside the judgment of the Upper Area Court Iyara based on the only ground of Appeal argued before it?
2) Was the High court Kabba right to have heard and determined the appeal before it based on the printed record without any challenge by the Appellant/Respondent?
At the hearing of the Appeal on the 10th November, 2008, learned counsel for the Appellants, Mr. Anthony Eghieye, adopted and relied on the Appellants’ Brief of Argument dated 29th December, 2006 and filed 12th January, 2007. He also relied on the Appellants Reply Brief dated 31st October, 2007 and deemed properly filed and served on the 9th of July 2008 and urged the court to allow the appeal and restore the judgment of the trial court.
The Respondent adopted and relied on its brief of argument and urged the court to dismiss the appeal.
Before delving into the Issues for determination, let me consider the preliminary issue raised by the Respondents in its brief of argument.
Learned counsel for the Respondents raised a preliminary objection in his brief of argument that the Appellant’s only notice of appeal dated 3rd day of March 2005 and filed on 4th March, 2005 at the Kabba High Court Registry is defective and therefore cannot be the basis or foundation of a competent appeal. That this notice is clearly filed out, of time, as the Appellant by law had three (3) months within which to appeal against the judgment of the High Court Kabba delivered on the 9th July, 2004 and not 2005 as stated.
Learned counsel for the Respondents, did not argue this preliminary objection at the hearing of the appeal. A Respondent who intends to rely upon a preliminary objection to the hearing of an appeal shall give the Appellant three clear days notice before hearing and should set out the grounds of the objections. See Order 10 Rule 1 of the Rules of this court, 2007. Notice of objection can also be given in the Respondents’ brief. A party, who has given notice of preliminary objection in his brief of argument, must apply to the court for leave to move the objection before the commencement of oral hearing of the appeal. In the instant case, the Respondent adopted this procedure in raising the preliminary objection in his brief of argument. At the hearing of the appeal, the Respondent failed to apply for leave to move the objection before the commencement of the oral hearing of the appeal. The effect is that, the objection having not been moved, it is deemed abandoned and same is hereby discountenanced. See TIZA VS BAGHA (2005) 15 NWLR (PT 949); OMAGIE VS UNIVERSITY OF AGRICULTURE MARKURDI (2005) 19 NWLR (pt.959) 211 and ENEOLI VS ORAEKWE (2006) 1 NWLR (Pt.961) 342.
I have carefully considered the issues for determination as formulated by the respective learned counsel and the 7 issues formulated by the Appellant’s counsel appears repetitive as they overlap and a determination of anyone or two of the issues will determine this appeal. The two issues formulated by the Respondents’ counsel appears to be apt and directly on the issue in dispute. However, for whatever it is worth, all issues argued by counsel will be considered.
ISSUE 1, “Whether or not the lower court was right in overruling itself or whether the court can sit as Appeal court on its own decision as to the point, whether the court can take judicial notice of the special warrant issued by the Chief Judge of Kogi State as contained in the Court’s Ruling of 24th September, 2003.”
In arguing this issue, learned counsel for the Appellants’, submitted that the learned trial judges at the lower court were in error when it held that the special warrant was a photocopy and that a Certified True Copy was required. It is submitted that the lower court was in possession and custody of the Original Copy of the special warrant that was addressed to the Registrar of the lower Court by the Registrar of the trial Upper Area Court Iyara, through a letter dated 22nd September, 2003 attaching the original copy of the special warrant, referring to pages 108 lines 17-19 and page 109 of the Records. It is also his submission that a court is bound by its decisions. The court below could not hold in one breath that it will take judicial notice of the special warrant and come again to refuse to do same.
He referred to page 134, lines 33-35, page 135 lines 1-2, of the record of appeal wherein it stated that;
“as regards the letter in respect of the composition of the Lower court, we are of the view that it is a matter which we can take judicial Notice of if and when the need arises, that if the record of proceedings does not tell the whole story on the matter.”
It is therefore submitted that, having so ruled, the court below was bound by its ruling and that a judge is not allowed to review or sit as it were on appeal over a ruling or order made by him in a matter or in respect of a ruling or order made by another judge earlier on in the same matter. The case of THE HEAD OF THE FEDERAL REPUBLIC OF NIGERIA VS THE DOISOLE ADMINISTRATOR (1978) 1 NCAR 223- was referred to.
It is also the submission of the learned counsel for the Appellants that the lower court reviewed its earlier decision or sat on appeal upon its own decision that it would take judicial Notice of the special warrant, without any Appeal against the decision.
He submitted further that, in law, a certified true copy of a public document is required only where the original is not in the custody of the court. Sections 91(l), 93, 94(1), 95, 97(e) and (f), 109(a) and 111 of the Evidence Act 1990 were referred to. It is thus submitted that, in this case, the original copy of the letter was addressed to the Registrar of the lower court and same was in the file of the court. A Certified True Copy of the original document was not necessary.
It was also his submission that since the Respondents did not appeal against the Ruling of the lower court on the 24th September, 2003, there was nothing else pending before the court on that issue because the court had become funtus offido of that issue and could not re open same except, to comply with the said Ruling. He referred to the following cases;
SANUSI v. AYOOLA (1992) 11-12 SCNJ (part 2) 142 at 143.
RATIO 3 & 4; EKERETE v. EKE (1925) 6 NLR 118; AKINYEDE v. THE APPRAISER (1971) 1ALL NLR 162
It is submitted that, a court is funtus officio of its decision or of a decision given by another court of co-ordinate jurisdiction or of the same court differently constituted. It is his final submission on this issue that the lower court was in error when it overruled itself and refused to be bound by its earlier decision that it will take judicial notice of the special warrant and urged this Honourable Court to allow the appeal on this issue.
Issue 2 Whether or not the lower court was right in law in accepting the Ruling of the court of 24th September, 2003 for one purpose and rejected the same Ruling for another purpose. In arguing this issue, the learned counsel for the Appellants submitted that the judgment of the lower court cannot stand, since the judgment was predicated upon the only issue for determination before the lower court, which is, whether or not the trial Upper Area court Iyara was properly constituted as regards the number of members of the panel after the transfer of Hon. Obasanju, which was contained in additional ground 2.
He submitted that the lower court was approbating and reprobating at the same time by accepting the Ruling for one purpose and rejected the same Ruling for another purpose. He referred to the case of AGIDIGBI VS AGIDIGBI (1996) 6 SCNJ 105 at 108 RATIO I, and contended that the lower court cannot allow the argument based on additional ground 2 to be competent before it. It is his view that the lower court was wrong in accepting the Ruling of 24th September, 2003, before a particular panel sitting in the same court for permitting the use of additional ground 2 for the purpose of an appeal and rejected the portion of the same Ruling that held that the court would take judicial notice of the special warrant issued by the Hon. Chief Judge of Kogi State, permitting Hon. Obasanju to be a member of the panel at the Upper Area Court Iyara after he has been transferred to another court.
He submitted that if the lower court was right that the holding of the court on the 24th September, 2003, that it would take judicial notice of special warrant was by a different panel, it goes without saying that since it was the same panel that granted leave/order to the Respondents for the use of additional ground 2, the additional ground 2 was not a competent ground of Appeal that was before the lower court since the leave/order granted Respondents was by the same different panel. He submitted in conclusion that there was no competent ground of Appeal before the lower court and that where the ground of appeal argued before a court is incompetent, this court will be In a proper position to dismiss the Appeal filed before the lower court and urged this court to so hold. The case of WILLIAMS VS MOKWE (2005) 7 SCNJ 318 AT 321 RATIO 5, was referred to.
ISSUE 3, Whether or not the Ruling of the same court or of a court of co-ordinate jurisdiction constituted differently is not binding on the same court. Arguing this issue, the learned counsel for the Appellants submitted that the panel that heard the Motion on Notice on the 24th September, 2003 praying the court, for:
1) An order granting leave to the Appellants to file and argue additional grounds of appeal in terms of exhibit ‘A’ attached.
2) An order deeming the additional grounds of appeal as properly filed and served.
3) An order granting leave to the Appellants to rely on the Affidavit filed in this court on 8th April, 2002 annexed as Exhibit B to the motion;
Constituted the lower court on that day and thus its decisions were binding on the court, or of a court of co-ordinate jurisdiction or of the same court, differently constituted. He submitted that it is a general rule of law that no court has power to rehear, review, alter or vary any judgment or order after it has been entered and drawn up. Referring to the case of UDO IDION EKERETE VS UDO ENWE EKE (1925) 6 NLR 118. He further submitted that there is a total prohibition from review of a Judgment, Ruling or Order, which correctly represented what the court decided; such a Judgment, Ruling or Order shall not be varied. The case of ALAO VS ACB (2000) 6 SCNJ 63AT 76, was also referred to.
It is his further submission that by the judgment of the lower court and her refusal to take judicial Notice of the special warrant, what the lower court did was to vary or review the earlier ruling of the 24th September 2003, when it had no power or jurisdiction to do so. When a court lacks jurisdiction, any step taken in the proceedings will be null and void. The following cases were referred to: IBWA LTD v. PAVEK INTERNATIONAL CO NIG LTD (2000) 4 SCNJ 200; ADESOLA v. ABIDDYE (1999) 12 SCNJ 61; TIMITIMI VS AMABEBE 14 WACA 374; MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587.
He further contended that where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been effective, then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded; it cannot assume the status of an appellate court over its own decisions.
Citing also the following cases: FRITZ VS HOBSON (1880) 14 CHD 542: ADEFULU v. OKULAJA (1998) 5 WLR. That those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply. THYNNE VB THYNNE (1955) 3 AER 129 AT 146; MIN. OF LAGOS AFFAIRS, MINES AND POWER & ORS v. AKIN OLUGBADE (1974) 1 ALL NLR (PT 2) 235; EKPUK v. OKON (2005) 6 SCNJ 139AT 141 RATIO 3.
He further contended that by not following the Ruling of 24th September 2003, the lower court overruled itself and this was done suo motu because none of the parties and their counsel urged on the court to do so. He contended that, it is the law that a court cannot raise a matter suo motu without calling on the counsel to both parties to address it on same before it could overrule itself. It is his view that the refusal of the lower court to invite counsel to address it was a breach of fair hearing and this has occasioned miscarriage of justice. The cases of: ACHIAKPA v. NDUKA (2001) 7 SCNJ 585; UBA v. ACHORU (1990) 10 SCNJ 17; UGO v. OBIEKWE (1989) 2 SCNJ 95; KATTO v. CBN (1999) 5 SCNJ 1 OKONKWO v. KPAJIE 2 SCNJ 290; NDIWE VS OKOCHA (1992) 7 SCNJ 355; USMAN v. UMARU (1992) 7 SCNJ 388; AGBI v. OGBE (2004) 2 SCNJ were referred to.
It is further contended that the Issue or idea of taking judicial Notice of the special warrant suo motu, was an intention, creation or idea created by the lower court and the lower court having delivered the ruling was bound by its ruling. The following cases were also- referred to; SANUSI v. AYOOLA (1992) 11-12 SCNJ (PT2) 142 at 143 RATIO 3 & 4; EKERETE v. EKE (1925) 6 NLR 11B; AKINYEDE VS THE APPRAISER (10T1) 1 ALL NLR 162.
It is therefore the final submission of the learned counsel that this Honurable court should hold that what the lower court did occasioned a miscarriage of justice and allow the Appeal on this issue.
ISSUE 4, Whether or not the lower was right in holding that the special warrant was not made part of the record of Appeal and not properly tendered before it as no Certified True Copy was tendered even though the original copy of the special warrant was before the court.
Learned counsel for the Appellant submitted that by a letter dated 22nd September 2003, the Registrar of the Upper Area Court Iyara, which was the court of first: instance, wrote a letter Ref.No.UAC/Corr./VoI.115 to the Registrar of High Court of Justice Kabba, the lower court and copied the parties, referring to page 108 of the Records of Proceedings. The letter submitted a special warrant (original copy) of the letter to the Registrar of the High Court. It is his further submission that since the lower court was already in possession and custody of the original copy of the special warrant as attached to the letter from the Upper Area Court, Iyara, the lower Court could not legally say that a Certified True Copy of the special warrant was not tendered before it. Learned counsel referred to the ruling of the 24th September, 2003; at pages 134-135 of the Records that, “As regards the letter in respect of the composition of the lower court, we are of the view that it is a matter which we can take judicial notice of if and when the need arises. That is if the record of proceedings does not tell the whole story on the matter.” He submitted that by this ruling, the lower court had accepted either to make the special warrant a part of the record or to rely on it as authentic record or document which the court cannot ignore but rely on same for the consideration of the Appeal before it. He relied on the case of AGU VS ODOFIN (1992) 3 SCNJ 161 at 179
He therefore submitted that the matter of incomplete record was made a subject of an application before the lower court and by the ruling, the lower court was wrong to have held that no certified true copy of the document i.e. the special warrant was produced and tendered when the court was already in possession and custody of the original document.
Learned counsel finally submitted that there was no need for the production of a certified true copy of the special warrant by the Appellant or the Registrar of the Upper Area Court Iyara as it was the original copy that was produced to the lower court, being already in its custody. He urged that the issue be resolved in favour of the Appellant.
ISSUE 5: Whether or not the lower court did not misdirect itself in fact and in law when it relied on the cases of, SULE A SUPAKA v. YAKUBU ONUKABA (2001) FWLR 159; NNAJI v. EJEH (1981-82) BNLR 8; CHIEF OBADERO v. OBAJADU (1974) NNLR 164, as to how a quorum of the court of first instance is constituted.
The learned counsel for the Appellant was of the view that the cases could be distinguished. It is his submission that while in the above cited cases, after the transfer of a member of the court, the court was then constituted by 2 members, in the ease under consideration; it was 3 members that heard and concluded the case. He submitted that, while the special warrant issued by the Hon. Chief Judge in Sule Asupaka’s case (supra), was to constitute the membership of the court to be 2 members who continued the case after the transfer of a member, in the instant ease, the special warrant issued by the Hon. Chief Judge was to constitute the court to enable ‘the transferred’ member to participate in the proceedings to make the membership of the court to re, main 3 members. It is his contention that the Chief Judge did not reduce the membership of the court. Rather the special warrant issued under the Hand and seal of the Chief Judge of Kogi State was to permit the court to hear the matter to conclusion, constituting same with 3 members that started the case. He submitted that in the case of OBADERO v. OBAJADU (1974) NWLR 164, the court held that “Section 4(3) (b) Area Court Edict makes the presence of 3 members at the hearing of the case by the Area Court obligatory unless otherwise directed by the Chief Justice.”
He submitted that in the instant case, the Chief Judge did not otherwise direct, and therefore that, the issuing of a special warrant by the Chief Judge of Kogi State reconstituting the court for the purpose of completing pending cases, the special warrant made the participation of Hon. Obasanju after his transfer legal.
In further distinguishing the instant case with the above cited cases, he submitted that the provision of Section 4(3)(b) of the Area Court law 1967 and the Area Courts (Quorum Direction) 1968 have been given expository treatment and it is now trite law that an Area Court with a bench of 2 members can proceed to hear a case if for any reason one of the members is absent, provided that the name of the member who is absent and the fact of his inability to be present are noted on the record of proceedings. He further posited that the above position is in consonance with 2 members sitting but in the instant case, it was 3 members that sat on the matter.
He further submitted that the Chief Judge did not just issue the special warrant, constituting the membership of the panel in the instant case, rather, It was through the application of both counsel to the Appellants and Respondents that the special warrant was issued. That is, it was by agreement of the parties through their counsels that the application for special warrant was done. It is his submission therefore that the Respondents cannot be heard now to challenge the issuance of the special warrant which was issued by their application and consent. The cases of ADEIGBE v. KUSIMO (1965) 1 ALLNLR 248 RATIO 1 & 2; OKESUJI v. LAWAL (1991) 2SCNJ 1, were referred to.
Similarly it is also submitted that the Respondents cannot deny the existence of the special warrant, having previously raised an objection as to its admissibility or its inclusion as part of the records of proceedings upon which the lower court held that “judicial notice will be taken of the letter, if and when the need arises.” The learned counsel for the Appellants therefore urged the court to hold that the lower court misdirected itself in fact and in law when it held that the participation of Hon. Obasanju was wrong and that the judgment of the president and one member would be in contravention of the law because it is improperly constituted. The court was urged to resolve the issue in favour of the Appellant.
Now arguing issue 1 which he formulated to wit; Was the High Court right in setting aside the judgment of the Upper Area Court Iyara, based on the only ground of Appeal argued before it, learned counsel for the Respondents submitted that the issue must be answered in the affirmative because the upper Area Court consists of a panel of three and can only hear and determine a case, when it enjoys its full compliments; it is his view that, once a member is transferred, he ceases to be a member of that court and therefore can no longer partake in proceedings of the court. The following cases were referred to: SULE A SUPAKA v. YAKUBU ONUKABA (2001) FWLR 159; ASIMAMU v. YAKUBU ONUKABA (2001) FWLR 159; NNAJI VS EJEH (1981-82) BNLR 8 and OBADERO VS OBAJADU (1974) NNLR 164. He therefore urged the court to dismiss the appeal and hold that the cited authorities were properly applied at the lower court.
On issue 2 to wit; was the High Court Kabba right to have heard and determine the appeal before it based on the printed record without any challenge by the Appellant/Respondent? Learned counsel for the Respondents submitted that the Appellants brief is repetitive, unwieldy and contradictory but since the court has held in OGBORU v. IBORI (2006) 17 NWLR (PT 542) that it will not strike out repetitive and unwieldy grounds, so as not to deny the appellants constitutional right to appeal, he will raise no objection. However, it is his submission that on the authority of DADA v. DOSUNMU (2006) 18 NWLR (Part) 1010) 134 RATIO 12. 13.
and 14 his lordships are not bound to consider appeals on issues formulated by parties.
The learned counsel for the Respondents further submitted that Grounds of Appeal are usually against a ratio and not an obiter. Citing XTOUDOS SERVICES v. TAISE (2006) 6 SCNJ 300. It is his submission that issues 1, 2, 3 and 4 and grounds 1, 2, 3, 4, and 5 upon which the issues are based are repetitive, unwieldy, contradictory and that they are challenges to an obiter relating to a speculative and a futuristic ruling and urged the court to dismiss the appeal.
The learned counsel further argued that paragraphs 5, 6, at page 9 of the Appellant’s brief to the effect that there was no competent ground of appeal is misconceived as there was no cross-appeal by the Appellant before the High Court. The request can only be made at the lower court as there is no right of Appeal from Area Court to Court of Appeal. Learned counsel further submitted that, the complaint of the Appellants in GROUNDS 1-5 relate to an alleged Ruling on 24/9/2003, concerning a special warrant that was not part of the Records, before the High court, or in any way alluded to in the Record of proceedings. It is his argument that when a similar situation arose in respect of the president, a reason for his continuation was given, referring to pages 39 line 17 referred to at page 137 by the High court. He submitted that there was no w, here in the Records where the continued participation of Hon. Obasanju was explained.
Learned counsel referred to the Ruling of the court at pages 134-135 of the record that, “As regards the letter in respect of the composition of the lower court, we are of the view that it is a matter which we can take judicial notice of if and when the need arises that is, if the record does not tell the whole story on the matter,” and submitted that this cannot be said or called a RULING. That it, is at best an obiter, which cannot be the basis of an appeal. It is futuristic, speculative and not definitive.
He, further submitted that there is always a presumption of correctness of the contents of a record of Appeal, unless and until the contrary is proved, citing in support the case of AMUSAN VS OLAWUMI (2002) FWLR (Part.118) Pg 1385 Ratio 1. It is his view that the only way to challenge the correctness of a Record is for the party contesting the correctness to file an affidavit to contest it, citing the case of NDAYAKO VS MOHAMMED (2006) 17 NWLR (Part 1009) Page 655. It is submitted further that it is the duty of the Appellant to challenge the correctness of the Records, if there was a, need, citing also the case of AGU v. ODOFIN (1992) 3 SCNJ 161 at 179. It is therefore his final submission that the submission of the Appellant on fair hearing, review and/or miscarriage of justice are misplaced and misconceived and urged the court to so hold, citing in support the case of PEDMAR v. TEXACO (2003) 2 SCNJ 282
I have considered the submissions of the learned counsel for the Appellant and that of the Respondent’s counsel and I have given a special consideration to all authorities cited by the respective counsel. According to the learned counsel for the Appellant, when the Appellants drew the attention of the lower court to the letter from the Registrar of the Upper Area Court, Iyara, which was the trial court, informing the court of the existence of a special warrant issued by the Hon. Chief Judge of Kogi State, the Appellant counsel urged the court to make the special warrant as part of the record of appeal, counsel to the Respondents urged the lower court to discountenance the letter. It was based on this that the court in its said ruling of 24th September 2004 held that “As regards the letter in respect of the composition of the lower court, we are of the view that it is a matter which we can take judicial Notice of if and when the need arises, that is the record of proceedings does not tell the whole story on the matter.”
The contention of the learned counsel for the Appellants is that having ruled on the said letter, the court cannot be heard to say that the letter was not properly before it or that only a Certified True Copy of the letter was admissible and having not done that, the letter is discountenanced.
It is trite law that, only a certified true copy of the original of the public documents is admissible. Section 97 (1) (e) of the Evidence Act, cap 112, LFN, 1990, provides, that,
“Secondary evidence may be given of the existence condition or contents of a document in the following cases (c)when the original is a public document within the meaning of Section 109 of the Act.”
Section 109 of the Act provides that ”the followings documents are public documents-
Documents forming the acts or records of the acts-
Of the sovereign authority
ii. Of official bodies and tribunals and
iii. Of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere
b) Public records kept in Nigeria of private documents.
It is therefore evident that from the said provisions of the Evidence Act, the said letter is a public document and only a certified true copy of it is admissible in evidence.
However, the court having ruled that it would take judicial notice of the document, can the document be said to be properly tendered before the Court? It is submitted with due respect that the letter cannot be said to be properly tendered before the court. The court cannot just of course take judicial notice of a document not properly brought before it.
In ABACHA v. FAWEHINMI (2000) 4 SCNJ 400 at page 458, the court per S.D. Uwaifo JSC said,
“When a document is produced before a court for the purpose that it be used in the proceedings, the proper procedure is to tender it formally. If it is admissible, it is accordingly admitted as Exhibit in its original form. But if it is document that cannot be parted with by the person in whose custody it is, or the original is not available, a copy or certified copy as secondary evidence In appropriate cases will meet the occasion……………..I do not think it was a question of recourse to taking judicial notice as the learned judge said…….”
Per Ogundare, JSC, on the same matter at pg 429
“I am not unmindful that in the course of proceedings in the trial court a detention order was shown to the court. As it was never tendered and admitted in evidence it did not form part of the proceedings in this case. Nor was it evidence on which the court could act.” (Underlining mine)
Similarly at page 458, the court again held that
“When a court takes judicial notice of a legislation under Section 75(1) of the Evidence Act, the legislation is placed before it and it takes judicial notice of its contents and the fact that the legislation was duly made………”
In the instant case therefore, the letter was not formally and properly tendered and admitted in evidence before the court. It is not in dispute that it was not part of the record transmitted to the lower court. The court cannot take judicial notice of a correspondence from one register of the court to the other unless the letter is properly tendered before it. As the letter did not form part of the proceedings of the lower court and the learned counsel for the Appellant did not make any attempt to tender the said warrant as an exhibit before the court, it is properly discountenanced by the court. The court cannot take judicial notice by the mere mention of the special warrant, not being properly tendered before it.
The crux of the Appellant’s issue 2 is whether the lower court was right to “have by the Ruling of 24th September, 2004 granted leave to the Respondents to file two additional grounds of appeal and also said that it will take judicial notice of the special warrant and that by this act, the lower court was approbating and reprobating at the same time by accepting the ruling for one purpose and rejected the same ruling for another purpose.
For clarity on this issue, I will reproduce the said ruling in part. It states;
“As regards the letter in respect of the composition of the lower court, we are of the view that it is a matter which we can take judicial notice of IF AND WHEN the need arises, that is if the record of proceedings does not tell the whole story on the matter.”
The argument of the learned counsel for the Appellants is that the court is bound by its decision and cannot overrule itself, however, by the above cited Ruling; the court said it would take judicial notice IF AND WHEN the need arises. Assuming, that the special warrant was properly brought and tendered before the court, it was still the discretion of the court to make use of it, if the record of proceedings does not tell the whole story.
It has been decided in NDAYAKO v. MOHAMMED (2006) 17 NWLR (part 1009) Page 655 at page 665 that;
“The Record of Appeal is the final reference of step by step event, that took place in the court. The record of proceedings and the notice of appeal after compilation constitute the record of appeal and this is binding on the court.”
The record of proceedings constitutes the final reference in an appeal and on the whole, there is a presumption of correctness of the record. In NDAYAKO v. MOHAMMED (supra) at page 666, the court held that; “There is a presumption in favour of the correctness of the record of appeal”
It therefore follows that the lower court was right in holding that there being nothing on the record to show for the continued presence of Hon. Obasangu, in the trial Upper Area Court, the court was not properly constituted. The lower court held at page 144-145 of the Records that, “The only issue for resolution is whether the court was properly constituted and competent after the transfer and reappearance of Hon. Obasangu.
As contained in the records, one of the members of the court panel Hon. M. Obasangu was transferred away midway into the case. Another member was posted who replaced him. But he did not sit, because he did not start the case with them. At the next adjourned date, the said Hon. Obasangu has rejoined the court’s quorum. That was on 30th August 1999.
There was nothing on the face of the record to show the circumstances under which he joined the panel. It was left for speculation because there was nothing said on the record.
Whereas the record (page 59) stated that a special warrant directing the President (who had earlier been transferred away) to continue with the hearing was received. The inference to be drawn from the facts available in the record was that since the former member was transferred away, there were only two members namely the President and another member left to continue the case. It is trite that the Upper Area Court must consist of three members, subject to a directive by warrant issued by the Chief Judge allowing two members to sit. See Section 4(3) (b) of the Area Court’s Law, 1991. However, where a member has been transferred from the court, he has ceased to be a member of that court.
On the face of the record before the lower court, the lower court was right to hold the view that Hon. Obasanju was a stranger to the proceedings. He has no business being there after his transfer from that court.
In the circumstances, in the absence of any special warrant signed and sealed under the hand of the Hon. Chief Judge of Kogi State allowing Hon. Obasanju to continue the hearing of the matter, the Lower Court was right in holding that the continued presence of the transferred member was unnecessary and that the special, warrant not being made part of the record and not being properly tendered cannot be used in the determination of the appeal.
In Issue 3, the Learned Counsel for the Appellant made very copious submissions as to the fact that the Lower Court overruled itself in not taking judicial notice of the special warrant. I will not repeat what I have stated earlier on but I can only add that the lower court did not overruled itself. It said it would take Judicial Notice of the special warrant IF AND WHEN the need arose. It is my respectful view that that need never arose, since the records were able to tell the whole story. It is therefore my view that the Lower Court did not overruled itself and so issue 3 must fail.
As regards issue 4 of the Appellant’s brief to wit: Whether or not the Lower Court was right in holding that the special warrant has not been made part of the record of appeal and not properly tendered before it as no certified true copy was tendered even though the original copy of the special warrant was before the court. The issue of the special warrant not being tendered properly, not being a certified true copy has been extensively dealt with in answering issue I. On the issue of the special warrant not being made part of the record of appeal, the court has held in AGU v. ODOFIN (1992) 3 SCNJ 161 at 179 that: “Where a counsel realises that the record of Appeal is uncompleted, it is his duty to inform the court early and where he feels that after due search in the lower court he can take other step to convince the court that the record before the court though certified as a true copy of the proceedings was indeed wrongly, certified, he should know what next to do. In the instant case, when the Appellant noticed that the record was uncompleted he got in touch with the Registrar of the trial Upper Area Court Iyara, who wrote to the lower court producing the document which was omitted and in his letter the Registrar admitted his fault. I agree with the learned counsel for the Appellants that in line with the decision of the court in AGU v. ODOFIN supra, he made efforts to rectify the fault. However, I must note that the learned counsel for the Appellant breached a very fundamental process in not tendering the said letter which is the very foundation upon which this Appeal is precipitated.
The crux of this appeal is the special warrant and its admission is very important in the determination of this appeal. The learned counsel should have appreciated the importance of that special warrant and should have taken steps to ensure that it was properly tendered before the court. It is trite that the courts have been copiously enjoined to do substantial justice rather than have undue adherence to technicalities. In BUHARI V YABO (2006) 17 NWLR (pt.1007) page, 162 at page 169, the court held that: “Courts are expected at all times to ensure they do substantive justice between parties In that regard, the rules of court must be interpreted to prevent undue adherence to technicalities”. However, “the role of the court is to apply the principles of substantial justice according to law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other part. Justice should be evenly spread between the parties. Where a rule of court has clearly and unambiguously provided for a particular act or situation the courts have a duty to enforce the act or situation and the issue of doing substantial justice does not or should not arise. The party who fails to Comply with the rules has himself to blame. He cannot be heard to canvass the omnibus ground of doing substantial justice. See DADA v. DOSUNMU (2006) 18 NWLR (pt.1010) page 134 at page 142-143; ANIMASHAUN v. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (Pt. 476) 65 referred to.
It is therefore my humble opinion that issue 4 must fail, having recourse to the above stated pronouncement by the court as the learned counsel for the Appellant did not follow the procedure laid out in SECTION 97 (1) (e) as to how a public document should be tendered in court.
With regard to Issue 5: “Whether or not the Lower Court did not misdirect itself in fact and in law when it relied on the cases of SULE ASUKAPA v. YAKUBU ONUKABA (Supra); NNAJI v. EJEH Supra and ODADERO VS OBAJADU (Supra).
The learned counsel for the Appellants made very strenuous efforts at trying to distinguish between the above mentioned cases and the case at hand. I really commend the industry put up by the learned counsel for the Appellants but see no use this distinction has served in these cases as the main crux of the matter is the special warrant and its weight in the decision reached by the court.
In conclusion therefore, this appeal is unmeritorious and must and it is hereby dismissed. The decision of the High Court Kabba, sitting in its appellate jurisdiction delivered on the 9th day of July, 2004 is hereby affirmed.”
The case is hereby remitted to Upper Area Court Isanlu for trial denovo. Costs of N20, 000 is hereby awarded against the Appellant in favour of the Respondents.
Other Citations: (2009)LCN/3082(CA)
