The Shell Petroleum Development Company of Nigeria Limited & Anor V. Douglas Eriata & Anor (2016)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This appeal emanated from the Judgment of High Court of Justice Warri Division in the Delta State of Nigeria in Suit No. HOR/24/2000 ? DOUGLAS ERIATA VS (1) SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED (2) V.S. OLAREWAJU (3) COMMISSIONER OF POLICE, DELTA STATE delivered on the 26th day of April, 2004.
Briefly, the facts of this case are that by Paragraph 27 of the Statement of Claim, the Plaintiff claimed ?
(1) Against the Defendants jointly and severally, a declaration that the alleged termination of the Plaintiff?s appointment on the 9th of January 1997, following his suspension from duty vide letter dated 7th January 1997 is improper, wrongful, illegal, unconstitutional, null and void and against the principles of natural justice.
(2) Against the 3rd Defendant, a Declaration that his ratification of the termination of the Plaintiff?s appointment vide letter Ref ? AH/6700/DTS. Volume 1/74 of 18th February 1997, is contrary to the provisions of the Police Act 1967 and therefore improper, wrongful, illegal,
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unconstitutional, null and void.
(3) Against the 1st and 3rd Defendants jointly, an order setting aside the alleged termination of appointment of the Plaintiff from the services of the 1st Defendant and a consequential order enjoining the 1st Defendant to pay to the Plaintiff all her accrued and withheld salaries, other emoluments and benefits from the 7th of January 1997 till the date of Judgment in this suit, and thereafter till the services of the Plaintiff with the 1st Defendant are properly severed in accordance with the provisions of the Police Act, 1967.
(4) Against the 2nd Defendant ?
(i) The sum of (N1,000,000.00) One Million Naira being damages for malicious instigation and procuring the wrongful termination of the appointment of the Plaintiff from the services of the 1st Defendant.
(ii) The sum of (N1,000,000.00) One Million Naira as Damages for defamation of character by maliciously publishing of the Plaintiff to be involved ?in a drinking spree? even though he knew her to be a serving supernumerary Police Constable in the services of the 1st Defendant?s Security Department.
?At the end of
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hearing, Judgment was entered in favour of the Plaintiff.
Dissatisfied with the Judgment of the Lower Court, the Appellants appealed to this Court.
The learned counsel for the Appellants formulated three issues for the determination of this appeal. The said issues are reproduced as follows: –
(1) Whether the learned trial Judge was right in assuming jurisdiction over claims 1 to 4 (i) of paragraph 27 of the Plaintiffs statement of claim?
(2) The learned trial Judge having found that the claim against the 3rd Defendant is not within the purview of the High Court but within that of the Federal High Court whether he was right in striking out the name of the 3rd Defendant suo motu?
(3) Whether the Judgment of the High Court can be allowed to stand when the Appellants have been denied their full rights of appeal by the inability of the High Court Delta State to compile and transmit the complete records of appeal to this Honourable Court.
In her own case, the learned counsel for the 1st Respondent formulated five issues for the determination of the appeal. The issues are reproduced as follows: –
(1) Given the facts and
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circumstances of this case, coupled with the nature of reliefs sought by the 1st Respondent at the Lower Court, whether the Lower Court was not right in holding that the termination of the 1st Respondent appointment vide Exhibit D and ratified vide Exhibit G was wrongful, illegal, null and void? (Distilled from grounds 1, 3 and 5 of the amended notice of appeal).
(2) Based on the reliefs claimed by the 1st Respondent and the evidence before the Lower Court, whether the Lower Court did not properly evaluate evidence before granting the 1st Respondent?s relief having struck out the name of the 2nd Respondent? (Distilled from Ground 2 of the amended Notice of Appeal).
(3) Looking at the clear and unambiguous provisions of Sections 18 (5) & 22 of the Police Act Cap P19 LFN 2004 and those of the Constitution of Federal Republic of Nigeria, whether the trial Court was right to hold that the 1st Respondent was not given a fair hearing? (Distilled from Ground 4).
(4) Given the state of the pleadings and the evidence before the Lower Court, whether the Court was right in awarding damages of N1,000,000 in favour of the 1st Respondent (Distilled
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from Ground 6).
(5) Whether this honourable Court can do justice between parties in this appeal as presently constituted? (Distilled from Grounds 7 of the Amended Notice of Appeal).
At the hearing of the appeal, the learned counsel for the 1st Respondent drew the attention of the Court to the Preliminary Objection filed on behalf of the 1st Respondent which has been incorporated and argued in the 1st Respondents? brief of argument filed on 8/7/2014.
She stated that the Preliminary Objection is on the competence of the Appellants? brief of argument dated 24/10/2013 and filed on 25/10/2013.
The notice of Preliminary Objection was brought pursuant to Order 10 of the Court of Appeal Rules 2011, and under the inherent jurisdiction of the Court.
The learned counsel for the 1st Respondent contended that the Appellants? brief of argument was filed outside the time limited by the Rules of this Honourable Court without an order extending the time to file same. She submitted that the said Appellants? brief of argument is incompetent.
She relied on:-
– ORDER 18 RULE 2 OF THE COURT OF APPEAL RULES 2011;
–
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ADEFEMI VS. ABEGUNDE (2004) ALL FWLR Part 203 Page 2019 at 2155;
– OLUWOLE VS ABUBAKAR (2004) ALL FWLR Part 226 Page 289;
– MGT. ENT. LTD VS OTUSANYA (1987) 2 NWLR Part 55 Page 179.
It was also argued on behalf of the 1st Respondent that the mere fact that the Appellants brought an application before the Court to file and argue additional grounds of appeal or to amend their notice of appeal did not stop the time to file the Appellants? brief from running. She finally urged that the Appellants? brief be struck out.
In his response, the learned counsel for the Appellants urged that the Preliminary objection should be dismissed.
He submitted that the time to file briefs of argument does not start to run until the record of appeal is fully compiled and transmitted.
He relied on the case of: –
– WESTERN STEEL WORKS LTD VS IRON AND STEEL WORKERS UNION (1989) 3 NWLR Part 30 Page 619 at 628.
?It was also argued on behalf of the Appellants that it is patent from the record of appeal that the evidence led at the trial is totally omitted from the purported record of appeal. The learned counsel for the Appellants
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also contended that this Court does not have the jurisdictional competence to hear an appeal based on incompetent record of appeal. He relied on the case of: –
– MUTUAL LIFE AND GENERAL ASSURANCE VS IHEME (2012) ALL FWLR Part 610 No. 1 at 1410.
Learned counsel for the Appellants went further in his argument that once leave to amend, notice of appeal is granted, the existing notice is vacated and rendered non-existent. He relied on the following cases: –
– UBN PLC VS EZEWUDO (2009) ALL FWLR Part 459 Page 1889 at 1897;
– AFRIBANK (NIG) PLC VS AKWARA (2006) 5 NWLR Part 974 Page 619 at 640;
– F.B.N. PLC VS TSEOKWA (2003) FWLR Part 153 Page 205.
It was finally contended on behalf of the Appellants that the Appellants having obtained leave to appeal and having filed their amended notice of appeal within time, are entitled to file their brief of argument based on the amended notice of appeal. He submitted that the Appellants? brief of argument based on the extant notice of appeal is proper and competent.
?In this appeal under consideration, the record of appeal was transmitted on 14/10/09 but received by the
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Appellants on 12/2/2010. The Appellants? brief was filed on 25/10/2013. This shows that the said brief was filed outside the limited time prescribed by the rules.
Order 18 Rule 2 of the Court of Appeal Rules 2011 provides thus: –
?The Appellant shall within forty-five days of the receipt of the record of appeal from the Court below, file in the Court a written brief, being a succinct statement of his argument in the appeal.?
Once the record of appeal is received, the Appellants are duty bound to file their brief within 45 days of the receipt of the said records of the Lower Court.
The Appellants in this case, filed their Appellants? brief of argument on 25/10/2013 without an order extending the time within which to file the brief.
Although the learned counsel for the Appellants argued that leave to amend the notice and grounds of appeal was obtained before the amended notice of appeal was filed. The motion for leave to amend the notice of appeal was filed on 5/3/2012.
?It is settled law that once leave to amend the notice of appeal is granted, the existing notice is vacated. It follows that if the
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amended notice of appeal is filed within the time ordered by the Court, the said amended notice of appeal automatically steps into the shoes of the Original Notice of Appeal which has been vacated by the amendment. In effect, the amendment takes effect retrospectively, not from the date it was made but from the date of filing of the original notice.
See ? UBN PLC VS EZEWUDO (Supra)
– FBN PLC VS TSEOKWA (Supra).
The contention of learned counsel for the Appellants that having filed their amended Notice of Appeal within the time ordered by the Court, the Appellant?s brief of argument, which was filed out of time has been validated cannot be correct. This is because the Appellant?s brief filed out of time remains incompetent until that position is regularised.
In the case of ADEFEMI VS ABEGUNDE (Supra) Page 2019 at 2155, it was held per Onnoghen JCA (as he then was) thus:-
?The legal effect of filing the brief of 3rd ? 6th Respondents out of time and without an order of this Court extending time to do so is that there is no legally recognizable brief of argument in respect of the 3rd ? 6th Respondents
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in this appeal. The Court cannot look at the purported brief of argument filed on 4/8/03 since it is not properly before Court having been filed in the circumstances earlier stated. The said brief is hereby discountenanced.”
See also ? OLUWOLE VS ABUBAKAR (Supra)
– MGT.ENT.LTD VS OTUSANYA (Supra).
As I stated earlier in this Judgment, the Appellants? brief of argument which was filed outside time contrary to Order 18 Rule 2 of the Court of Appeal Rules 2011 is incompetent.
The effect of this is that the Appellants does not have legally recognizable brief before this Court. The said Appellants? brief of argument filed on 25/10/2013, is hereby discountenanced.
Ordinarily, this appeal ought to have been dismissed at this stage. But after a careful reading of the record of appeal and the 1st Respondent?s brief of argument, it was discovered that the Delta State High Court heard the case and delivered Judgment at Orerokpe Judicial Division. But in compiling the record of appeal to this Court, the evidence led by the parties which the Lower Court evaluated was totally omitted from the record of appeal transmitted
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to this Court.
The 1st Respondent?s counsel, in confirmation of the fact that the record transmitted to this Court was an incomplete record, submitted in Paragraph 7.06 of the 1st Respondents? brief of argument that the Appellants were tardy in the prosecution of this case and no effort was made to correct and/or search for the ?missing records? as canvassed. The learned counsel for the 1st Respondent submitted that it is trite that if the complete record of appeal is not available, the 1st Respondent is entitled to have the appeal proceedings terminated. He relied on the case of ? UWECHIA VS OBI AND 9 OTHERS (1973) 2 S.C.
There is no doubt that the evidence led by the parties at the Lower Court was totally omitted in the record of appeal compiled and transmitted to this Court.
My humble view on this is that it is now settled that no appellate Court has the jurisdiction to hear an appeal upon an incomplete record, particularly when the missing portion as in this case is so material and very crucial.
I am fortified in my view above by the decision of the Supreme Court in EKPEMUPOLO VS EDREMODA (2009) 8 NWLR Part
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1142 Page 166 at 171 where it was held as follows:-
An appellate Court can only come to the conclusion that it is satisfied that the trial Court properly appraised all the evidence placed before it, if it has seen the exhibits. What an appellate Court cannot see is the evidence given by the witnesses and so it goes by the record to see whether the evaluation and conclusion reached by the trial Court are vindicated on the record. A Court, trial or appellate cannot and must not come to the conclusion one way or the other on exhibits which it did not see. Where a Court does that, there is a clear miscarriage of justice and the Judgment must be declared a nullity. The summary of the fore-going is that an appellate Court has a duty to examine the totality of the evidence presented at the Court below in order to ascertain whether the decision was supported by the evidence placed before it. In the instant case, without seeing Exhibit A which virtually or materially was not contested, the Court of Appeal could not have been in any position to assert, as it did, that the trial Court properly and meticulously evaluated all the evidence before it
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arrived at its decision. The assertion or finding was merely presumptuous and could not stand.
See MOBIL PRODUCING NIG UNITED VS MONOKPO (2003) 18 NWLR Part 852 Page 346;
– EDJEKPO VS OSIA (2007) 8 NWLR Part 1037 Page 635.
Consequent upon the foregoing, I am of the view that this Court lacks the jurisdiction to hear this appeal upon an incomplete record particularly when it is the entire evidence led by the parties at the Lower Court which is very crucial that is missing.
In the result, this case is hereby remitted to the Chief Judge of Delta State who shall direct the Registry of the Delta State High Court to compile and transmit a complete Record which shall include the evidence led by the parties at the Lower Court and other omitted parts of the record of proceedings to this Court without further delay.
There shall be no order as to costs.
Other Citations: (2016)LCN/8849(CA)
