Uyaemenam Nwora & Ors V. Nweke Nwabueze & Ors (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On 12-11-1999, the Anambra State High Court rendered judgment in consolidated suits Nos.AA/53/75 and AA/11/77 granting declaration of title to the suit land in favour of the 1st and 2nd sets of respondents herein.

On 18-11-1999, the appellants filed a notice of appeal against the said judgment. Thereafter, the appellants did nothing in pursuance of the preparatory processes for the take off of the prosecution of the appeal until 31st October 2003, when they deposited the sum of N10,000.00 with the Registrar of the trial Court for the preparation and compilation of the record for the appeal.

?On 10-2-2005 this Court, upon the application of the appellants ordered the Chief Registrar or Registry of the trial High Court to compile and transmit the record of proceedings in the consolidated suits Nos. AA/53/75 and AA/11/77 to this Court within 30 days. It is noteworthy that the respondents did not oppose this application. The Chief Registrar wrote a letter dated 14-4-2005 to the Deputy Chief Registrar of this Court that several efforts made by him to trace the said record of

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proceedings did not yield the desired results. Following this letter, the appellants on 11-10-2005 applied by motion on notice to this Court for an order directing the Chief Judge of the trial High Court to re-assign to another Judge for trial de novo the consolidated suits Nos. AA/53/75 and AA/11/77 already finally and conclusively tried and determined since 12-11-1999. This Court refused the application holding that ?the condition precedent to taking an appeal in this Court are not complete being that there is no record of appeal transmitted to this Court. A notice of appeal by itself does not constitute an appeal. An appeal is by rehearing. There is nothing in this Court to hear.? This Court struck out the motion under Order 6 Rule 6 of the 2007 Rules of this Court. Dissatisfied with this refusal and striking out of their application, the appellants appealed against the said decision to the Supreme Court in Appeal No SC/115/2009.

?In respect of the notice of appeal filed on 18-11-1999 against the final judgment of 12-11-1999 in the consolidated suits, the Registrar of the trial High Court signed a certificate of non compliance with the

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conditions of appeal imposed. On the 3-3-2009, this Court struck out the appellant?s appeal No. CA/E/30/2009 for non compliance with the conditions for appeal. Dissatisfied with this decision, the appellant filed a notice of appeal commencing appeal No. SC/418/2010 at the Supreme Court.

On 9-12-2011, the Supreme Court struck out appeal No. SC/115/2009 following the adoption by the parties of their respective briefs.

On 17-5-2013, following the adoption of briefs by both sides, the Supreme 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 High Court, nullified the judgment/ruling of this Court of 3-3-2009 striking out appeal No CA/E/30/2009 for non compliance with the conditions for appeal, declared that Appeal No CA/E/30/2009 was still valid and pending in Court and that the appeal be heard.

The 2nd set of respondents by a motion on notice filed on 13-6-2013 applied for-
1. ?AN ORDER of this Honourable Court dismissing the appellants? Appeal No. CA/E/30/2009 for Non-Compliance with the Rules of this Honourable Court
2. AN ORDER of

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this Honourable Court vacating the Order of stay of execution made by the trial High Court against its judgment delivered on the 12th day of November 1999 granting declaration of title of the disputed land to the 1st and 2nd set of respondents.
3. AND FOR SUCH ORDER(S) as this Honourable Court may deem fit to make in the circumstance.?

The ground for this application is that contrary to Order 8 Rule 4 of the Court of Appeal Rules 2011, after the time prescribed for the registrar of the High Court to compile and transmit the record of Appeal No CA/E/30/2009 to this Court, the appellant has not compiled and transmitted the said record of this appeal and that by virtue of Order 8 Rule 18 of the said Court of Appeal Rules 2011, the respondents were entitled to move this Court to dismiss the appeal.

The motion on notice is supported by an affidavit of 27 paragraphs. On 13-7-2015,they filed a written address in support of this motion. The appellants on 19-9-2013 filed a counter-affidavit of 13 paragraphs and on 15-10-2015 filed a written address by DrJ.O.IbikSAN in opposition to the said application by the 2nd set of respondents.

?By a

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motion on notice filed on 11-7-2013, the 1st set of respondents also applied for-
1. an ORDER dismissing Appeal No. CA/E/30/2009 for the failure or neglect of the appellants/respondents to compile and transmit the record of appeal as stipulated in the Court of Appeal Rules 2011;
2. an ORDER vacating the Order of the Lower Court dated 14/12/2000 staying execution of the judgment in the consolidated suit No. AA/53/75 and AA/11/77.
3. AND for such further Order or Orders as the Court may deem fit to make in the circumstances

The grounds for this application are the same as the grounds for the 2nd set of respondents? application. It is supported by an affidavit of 27 paragraphs. On 13-7-2015, they filed a written address by J.N. Egwuonwu Esq in support of this application. The appellant on 19-9-2013 filed a counter affidavit of 14 paragraphs and on 15-10-2015 filed a written address in opposition of the 1st respondents? application.

?The appellants by a motion on notice filed on 19-9-2013 applied for-
1. AN ORDER directing the Chief Judge of the Anambra State High Court to assign consolidated suit Nos. AA/53/75 and AA/11/77

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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 suit 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 circumstances.?

The main grounds for this application are that even though the appellants have complied with all the conditions for this appeal and made sufficient funds available for the compilation and transmission of the record of this appeal to this Court, the Registrar of the trial High Court failed and refused to compile and transmit to this Court the said record of appeal alleging that he cannot trace the record, that the appellants are desirous of exercising their constitutional right of appeal against the trial Court?s judgment of 12-11-1999 and that effect can only be given to their constitutional right of appeal if this application is granted. The application is supported by an affidavit of eight paragraphs. On 15-10-2015, they filed a written address by Adetola Adeleke Esq in support of the application. The 1st set of

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respondents on 4-2-2014 filed a counter affidavit of 27 paragraphs and on 21-12-2015 filed a written address in opposition to the application. The appellant filed a further affidavit in response to the 1st set of respondents? counter affidavit. The 2nd set of respondents? written address filed on 13-7-2015 also contains arguments in opposition to the appellants? application.

The above mentioned motions filed by each party were heard together and therefore would all be considered and determined together in this ruling.

I have considered all the issues for determination raised in the respective written addresses in respect of each party?s application.I prefer to couch the issue for determination thus ? whether, considering the circumstances of this case, the demand of Justice support the grant of the application for an order directing the Chief Judge of the trial Court to assign the consolidated suits Nos. AA/53/75 and AA/11/77 to another Judge of that Court to try same de novo or the dismissal of this Appeal No.CA/E/30/2009.

?I will first determine the appellants? application filed on 19-9-2013. Then determine

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together the applications for dismissal of this appeal by the 1st set and 2nd set of respondents.

Let me now consider the appellants? application for an Order of this Court directing the Chief Judge of Anambra State High Court to assign the consolidated suits Nos. AA/53/75 and AA/11/77 to a judge of the said High Court for trial denovo.

Learned counsel for the appellants argued that the Chief Registrar of the trial Court has failed to comply with the subsisting 10-2-2005 Order of this Court compelling him to compile and transmit the record of the proceedings in those suits to this Court for the hearing of this appeal, that the said Chief Registrar has admitted its inability to compile and transmit the said records to this Court giving as a reason that the records cannot be found, that an appeal cannot be heard without the record of the proceedings from which it arose, the non compilation and transmission of the record of this appeal has made it impossible to hear this appeal and has thereby frustrated the exercise of the appellants? constitutional right of appeal, that the essence of this application is for this Court to provide a remedy

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by granting the prayers sought to make the appellants? right of appeal effectual, that given the exceptional circumstances of this case, the prayers sought by this application constitute the only available remedy, that the sins of the registry of the trial Court should not be visited on the litigant by divesting the appellants their right of appeal due to the act or omission of the officials of the trial Court. Learned SAN relied on the Supreme Court decisions FBN PLC v. May Med Clinics (2001)9 NWLR (Pt 717)28 at 39 for this submission.

Learned counsel also argued that this Court can grant the orders sought in this application by virtue of the general powers vested on by Order 19 Rule 11 Court of Appeal Rules 2011 and S.15 of the Court of Appeal Act 2004.

Learned SAN for the 1st set of respondents argued in reply that this appeal became pending in this Court when the notice of appeal commencing it was filed in the registry of the trial Court, that this appeal has not been entered in this Court because uptill date no record of this appeal has been compiled and transmitted to this Court, that as at the date of filing the instant application, the

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extant Rules of this Court are the Court of Appeal Rules 2011, that the duty of ensuring that the record of appeal is duly compiled and transmitted to this Courts rests ultimately on the appellant by virtue of Order 8 Rule 4 which requires the appellant to compile and transmit the record to this Court within 30 days after the trial Court?s registrar?s failure to compile and transmit same within the 60 days period prescribed for him to do so, that Order 8 Rule 18 provides that if the registrar fails to compile and transmit and the appellant has also failed to do so, the respondents can apply that this Court dismiss the appeal, that this application is contrary to Order 8 Rules 4 and 18 of the Court of Appeal Rules 2011 and lures this Court to exercise the jurisdiction it does not have. Learned SAN relied on the decision of the Supreme Court in Aqua Ltd v. Ondo State Sports Council (1988)4 NWLR (Pt 91) 622 that where an Act has been passed to change the law, its operation shall not be minimized or neutralized by introducing notions taken from the old law which the new Act intends to abrogate.

?Another submission of Learned SAN for the 1st set of

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respondents is that Exhibit 2,the Order of this Court compelling the Chief Registrar of the trial Court to compile and transmit the record of the proceedings in suits Nos AA/53/75 and AA/11/77 to this Court as the record of this appeal is null and void because the Chief Registrar against whom it is made is a stranger to this appeal proceedings and the Court lacks the jurisdiction to make an order against a non party to proceedings before it. For this submission he relied on Sken Consult (Nig) Ltd v. Ukey (1981)1 SC 6, Obiomonure v. Erinosho (1966)1 All 250, Okafor v. Okafor (2000) 11 NWLR (Pt 677) and Aseyemi-Bero v. LSPDC (2013)8 NWLR (Pt 1355)238 at 304. He then argued that this Court can set aside its Order in Exhibit 2 for being a nullity. For this submission he relied on Odofin v. Olubanji (1996)3 NWLR (Pt 435)126, Ogolo v. Ogolo (2006)3 NWLR (Pt.972)163 and Asayemi-Bero v. LSPDC (2013)8 NWLR (Pt 1355)238.

He further submitted that appellants? Exhibit 3, the letter from the office of the Chief Registrar informing the Deputy Chief Registrar of this Court that all efforts by them to trace the said records have failed is hearsay and therefore

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legally inadmissible and that the decision in FBN v. May Med Clinics (supra) relied on by the appellants is not applicable to this case as the then prevailing Rules of Court and the material facts of those case are different with the now prevailing Rules of Court and the facts of this case.

Learned SAN also submitted that the relief applied for by the appellants in their motion of 19-9-2013 is antithetical to the reliefs sought for in the notice of appeal that commenced this appeal, that the inevitable implication of this application is that the appellants have abandoned their said notice of appeal and the appellate jurisdiction invoked thereby and in lieu thereof are now praying for an order directing the trial Court to rehear the case de novo, thus intending that two judgments emanate from the trial Court, that there is nothing showing that the judgments in suits Nos. AA/53/75 and AA/11/77 are nullities, that the appellants did not exhibit with their affidavit the said judgments appealed against, that the said judgments are final decisions as they finally determined all the rights contested by the parties in the suits before the trial Court.

?Other

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submissions of the Learned SAN are that the efficacy and legitimacy of the decisions in suits Nos. AA//53/75 and AA/11/77 as final decisions remain unimpaired by any alleged or presumed loss of any record of a retired Chief Judge of the trial Court, that by reason of the finality of these decisions, the parties and the trial Court are strictly estopped from relitigating the controversy between the parties or any part thereof by virtue of the principle of res judicata.

Learned Counsel for the 2nd set of respondents argued in reply that where there is no record of appeal in respect of an appeal, the appeal is incompetent and is liable to be dismissed since no Court can deal with an appeal without the record of appeal. For this submission he relied on Order 8 Rule 18 of the Court of Appeal Rules 2011 and the case of A-G of the Federation v. Bi-Courtney Ltd (2012)14 NWLR (Pt 1321)467at 483. He then argued that by virtue of Order 8 Rule 4 of the Court of Appeal Rules 2011, the appellants had a duty to compile the record for this appeal to this Court within 30 days after the failure of the Registrar of the trial Court to do so, that the appellant did not only

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fail to do so but have not adduced any reasons for the failure to do so, that it is not enough to heap all the blame for the absence of the record of this appeal on the failure of the Registrar to compile and transmit the record, that the counsel who took part in the proceedings before the Lower Court ought to have some records at least to show what transpired before the trial Court to some extent. For this submission he relied again on A-G Federation v. Bi-Courtney Ltd (supra).

Another argument of Learned Counsel for the 1st set of respondents is that the appellant?s motion on notice of 19-9-2013 is incompetent because the prayers sought therein run parallel to the notice of appeal against the judgment of the trial Court and also the order made by the Supreme Court in Appeal No SC/4/8/2010 ? Nwora & Ors v. Nwabueze & Ors directing this Court to hear the appeal filed by the appellants, that since there is no record of appeal, there is nothing for the Court to determine and so this Court lacks the jurisdiction under S.15 of the Court of Appeal Act to make any order not even a consequential order to that effect, that it is only when

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there is an appeal to be heard and determined that an issue of a resort to S.15 of the Court of Appeal Act can arise.

Learned Counsel also submitted that the judgment of a Court of competent jurisdiction is presumed valid until it is set aside, that since there is no appeal against the judgments of the trial Court, what becomes of them if there is an order for retrial as the appellants seek in their motion, that this question becomes more relevant and worrisome when it is considered that if that judgment subsists, while there is a trial denovo, it can result in two judgments existing on the same subject matter, that this will create a chaotic situation and a Court of law cannot make an order which will cause more injustice to the parties, that the appellants do not seek to set aside the said subsisting judgments of the trial Court and this Court cannot grant to a party what he has not asked for, that this Court cannot grant the prayer for a trial denovo when the judgments of the trial Court are still subsisting and that the appellants? application of 19-9-2013 is an abuse of Court process because there being no record of appeal, the appellants

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insist on arguing the appeal and at the same time having the matter retried by the trial Court and there is no application to withdraw the appeal.

Let me now consider the merit of the above arguments of all sides.
The Supreme Court in Uwechia v. Obi & Ors (1973) NWLR 309 at 311 and Obiamalu & ORS v. Nwosu & Ors (1973) NWLR 307 held that it is the duty of the appellant to ensure that the records or the notes which he proposes to challenge in the appellate Court are made available to that Court and that if the records are not made available, the respondent is ex debito justiciae entitled to have the appeal proceedings terminated.
The Supreme Court in Engineering Enterprise of Niger Contractor Co. of Nigeria v. A-G of Kaduna State (1987)5 SC 27 held that its decisions in Uwechia v. Obi (supra) and Obiamalu & Ors v. Nwosu & Ors (supra) were based on Order 59 Rule 5(1) of the Rules of Supreme Court 1965 of England which imposed a mandatory duty on the appellant to produce the record of the proceedings challenged on appeal. In this later case of Engineering Enterprise of Niger Contractor Co. of Nigeria v. A-G Kaduna State (supra)

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the Supreme Court refused to follow its decisions in Uwechie v. Obi &Ors (supra) and Obiamalu & Ors v. Nwosu & Ors (supra) and held that it is the duty of the Registrar of the trial Court to compile and transmit the record of appeal to the appellate Court and if the Registrar fails to produce the record of appeal or the record of appeal cannot be found due to the fault of the Registrar or staff of the trial Court, then the appellate Court should Order a retrial of the suit or case from which the appeal arose. The reason the Supreme Court gave for not following its earlier two decisions was that the Rules relied on by it in the earlier decisions places a duty on the appellant to produce the record of appeal and is therefore different from the Court of Appeal Rules 1981 which placed the duty to produce the record of appeal on the Registrar of the trial Court. In distinguishing this later case from the two earlier ones, it held thusly- ?It is pertinent to observe that the rule of practice for the production of record of appeal prescribed by the Court of Appeal Rules 1981 to our Court of Appeal is not the same as that of England. Under our rule it

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is not the duty of the appellant to produce the judgment. The duty is imposed on the Registrar of the Court below. Order 3 Rules 10 and 13 of the Court of Appeal Rules read:-
?10. The appellant shall within such time as the Registrar of the Court below directs deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal?
13. The Registrar of the Court below shall transmit the record to the Registrar of the Court.? That being the case, the decision of this Court in Dr. Uwechia v. Obi (supra) and Obiamalu v. Nwosu (supra) are not directly relevant to the determination of the case on appeal because both cases were decided on a rule of practice which is not in pari materia with our rule of Court. Our law is quite clear that once an appellant has deposited the money for making up and forwarding the record, he has performed his duty. The record shows that the plaintiff deposited with the Registrar of the High Court of Kaduna State the sum of N47.40 for filing, hearing, service and records. He had done his duty. It was the Registrar of the High Court who failed to discharge his duty of

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transmitting the judgment to the Registrar of the Court of Appeal because the judgment was missing.?
The Apex Court in FBN Ltd v. May Med Clinics (supra) followed its decision in the case of Engineering Enterprise of Niger Contractor Co. Nigeria v. A-G Kaduna State (supra). The above decisions establish that the legal effect of the absence of the record of the proceedings from which an appeal arose or of the failure to compile and transmit such record because it cannot be found depends on who has the legal duty to compile and transmit the record to the appellate Court. That has accounted for the difference between the Supreme Court decisions in Uwechia and Obiamalu cases and its later decisions in Engineering Enterprise and May Med Clinics cases. So where the extant Rules at the material time places a mandatory duty on the appellant to compile and transmit the record of appeal to the appellate Court, if he fails to do so for the reason that the record is missing or cannot be found, then the respondent is ex debito justiciae entitled to have the appeal terminated. But where the extant Rules at a material time place on the Registrar of the Court the

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mandatory duty to compile and transmit the record of the relevant proceedings to the appellate Court to enable the hearing of an appeal, if he fails to do so for the reason that the record is missing or cannot be found, then the appellate Court should set aside the judgment sought to be appealed against and order a retrial of the suit from which the appeal arose.
As at 19-9-2013, when the appellants applied for an Order of this Court directing that the Chief Judge of the trial Court reassign the suit from which this appeal arose for retrial, the practice and procedure of appeals in this Court was regulated by the Court of Appeal Rules 2011. Compilation and transmission of records of appeal is governed by Order 8 of the said Rules. Rule 1 of the said Order places a mandatory duty on the Registrar of the High Court to compile and transmit the record of appeal to this Court within sixty days after the filing of the notice of appeal.
Rule 4 of the said Order prescribes what should happen if the Registrar fails to compile and transmit the record of appeal to this Court within sixty days after the filing of the notice of appeal. It states that-?Where

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at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transit the records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the appellant to compile the record of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar?s failure or neglect.?
By virtue of Rule 4 above the mandatory duty to compile and transmit the record of appeal shifts to the appellant, if the Registrar fails to discharge its duty to compile and transmit the record to this Court.
The Rules applicable to the instant case are clearly different from Order 59 Rule (1) of the English Supreme Court Rules 1965 applied by the Supreme Court in Uwechie and Obiamalu cases and Order 3 Rules 10 and 11 Court of Appeal Rules 1981 applied by the Supreme Court in the Engineering Enterprise and May Med. Clinics cases. The English Supreme Court Rules 1965 placed the duty only on the appellant to produce and transmit the records. The Court of Appeal Rules 1981 placed the duty to produce and transmit the record on

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the Registrar of the trial Court. But Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011 places the duty on both the Registrar of the trial Court and the appellant. The primary duty is vested on the Registrar and the secondary one on the appellants.

Inspite of the provisions of Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011, the appellants have argued that the mandatory duty to compile and transmit to this Court the record of proceedings in the consolidated suits Nos AA/53/75 and AA/11/77 remain permanently placed and fixed on the Registrar of the trial Court by virtue of the 10-2-2005 Order compelling the Registrar of the trial Court to compile and transmit the said record to this Court within 30 days. The said order was made under the then Court of Appeal Rules 1981 which did not provide for the shifting of that burden from the Registrar of the trial Court to the appellant as is now the case under the 2011 Court of Appeal Rules. The argument is valid when the 1981 Rules were operative. It became no longer tenable from the moment the 1981 Rules ceased to have effect and the 2011 Rules commenced.This is because the procedure of a Court in

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cases pending before it is governed by the Rules of Court prevailing at any relevant time. So that where a rule prevalent at the commencement of the case is repealed and replaced by a different rule during the pendence of the suit, further proceedings in the case would be in accordance with the new rule. So that processes that ought to issued or carried out or things that ought to be done under the then prevailing rule and were not issued, carried out or done until the rule was repealed would now be issued or carried out or done under and in accordance with the new rule.

It is obvious that the Registrar of the trial Court has uptill date not compiled and transmitted the record of appeal as ordered by this Court on 10-2-2005. As at 19-9-2013 when they brought this application, over 8 years had elapsed after the said order of 10-2-2005 that Registrar transmit the record within 30 days thereof. I agree with the argument of Learned SAN for the 1st set of respondents that the Registrar of the trial Court having failed to compile and transmit the said record within 30 days as ordered by the trial Court on 10-2-2005, the burden to now compile and transmit the

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records now mandatorily shifted to the appellant from the commencement of the 2011 Court of Appeal rules on 1-4-2011 by virtue of Order 8 Rules 1 and 4 of the said 2011 Rules. So as at 19-9-2013 the appellants had the mandatory duty to compile and transmit to this Court the record of this appeal. It is obvious that the appellants did not even attempt to discharge that duty. They have not given any reason for their failure to attempt to discharge that duty. It is glaring from the grounds for their application that they did not regard themselves as bearing such a legal duty and preferred to treat the duty as belonging to the Registrar of the trial Court.

It is clear that the decision of the Supreme Court in Engineering Enterprises case considered the legal effect of the absence or loss of the record of proceedings or part of it in an appeal not only on the basis of who has the legal duty to compile and transmit the record to the appellate Court, but also on the basis who was actually responsible for the absence or loss of the record of proceedings. In the Engineering Enterprises case the Supreme Court considered that the missing judgment of the trial Court

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could not be found due to the default, negligence and carelessness of the officials of the trial Court and was not due to any fault of the appellant. It held that if the Court had complied with S.258 of the 1979 Constitution of the Federal Republic of Nigeria which require that every Court shall deliver and furnish all parties to the case determined with duly authenticated copies of the decision on the date of the delivery thereof, the fact of the Court?s copy of the judgment being missing would not have created the present impasse and that this is a further reason why there should be a retrial. It then held that ?it seems to me that striking out the plaintiff?s claim, as the Court of Appeal did, was tantamount to the condonation by the Court of Appeal of the constitutional wrong committed by the Kaduna State. That Court was therefore wrong in making the order striking out the claim.?
?In determining the legal effect of the absence or loss of the record of proceedings against which an appeal has been validly filed, the relevant considerations should be-
1. who under the extant Rules of Court has the legal duty to compile and

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transmit the record to the appellate Court.
2. what efforts has the person made to compile and transmit the record.
3. what efforts has he made to trace the record, if it or any part of it cannot be readily found.
4. who is actually responsible for the absence or loss of the record.

I have already held herein that by virtue of Order 8 Rule 4 of the Court of Appeal Rules 2011 the appellant has the legal duty to compile and transmit the record to this Court since the Registrar of the trial Court has failed to do so as ordered by this Court and as required by Order 8 Rule 1 of the said Court of Appeal Rules 2011. It is not in dispute that the appellants made no efforts and did not attempt to compile and transmit the record to this Court.

I will now consider and determine who is actually responsible for the absence of the record. Even when it was the exclusive responsibility of the Registrar of the trial Court to compile and transmit the record to this Court, the appellants, after filing the notice of appeal on 12-11-1999, and obtaining an order staying execution of the judgment of the trial Court, took no steps to enable the Registrar

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compile and transmit the record until about four years after the filing of the notice of appeal, when they deposited the sum of N10,000.00 to enable the Registrar of the trial Court compile and transmit the record to this Court. It was rather the 1st set of respondents who took steps to cause the preparation of the records when they wrote a letter dated 24-1-2001 to the Assistant Chief Registrar of the trial Court complaining thusly ?Judgment was given in the above case in favour of the defendants on the 12th day of November 1999 by the retired Honourable Justice Obiora Nwazota. The plaintiffs on the 18th day of November, 1999 filed a notice of appeal and left it like that. Up till now we have not been invited for the settlement of Records and no further action has been taken in respect of the notice of appeal. We are therefore appealing to you to take urgent and necessary steps to expedite section on the appeal. We trust on your continued co-operation.? This fact is contained in Exhibit BB accompanying the counter affidavit of the 1st set of respondents in opposition to the appellant?s application. As Exhibit AA accompanying the same counter

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affidavit shows the said Assistant Chief Registrar through the principal Registrar wrote a letter dated 16-3-2001 to the appellants stating thusly- ?on the 18th day of November, 1999, you filed a notice of appeal which uptill now, you have not followed up. Therefore, I am directed to invite you to come and amount the sum of N5,000.00 (five thousand naira) for records of Appeal. You are also invited to come up to the Appeal Section of this office for settlement of records on the 20th March, 2001 at 10 a.m.? There is nothing to show that the appellants complied with the directive to deposit N5000.00 for compilation of record of appeal and go to the appeal section of that office to settle the records for the appeal on 28-3-2001.

The appellants through their Lawyers wrote a letter dated 17-10-2003 to the Assistant Chief Registrar of the trial Court, applying for compilation of record thusly-
APPLICATION FOR COMPILATION OF RECORD
?We are counsel for the plaintiffs/appellants in this suit in which His Lordship Obiora Nwazota (C.J. Retired) delivered judgment on 12th day of November, 1999. We have since filed our notice of appeal.

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Kindly cause the entire record of proceedings/record of appeal to be compiled and forwarded to the Court of Appeal Enugu to enable us prosecute our appeal. The bearer will pay the necessary fees.?

In this letter, which is Exhibit FF accompanying the 1st set of respondents? counter affidavit, no mention or reference was made by the appellant?s lawyers to the Registrar?s earlier correspondence of 16-3-2001 to them.Pursuant to the letter in Exhibit FF, the Assistant Chief Registrar of the trial Court issued another condition of appeal in handwritten form on 31-10-2003 directing thusly-
1. ?Appellants to deposit the sum of N10,000.00 to prosecute the appeal.
2. Appellants to enter into bond with the sum of N5,000.00.
3. Both parties to come for settlement of records.?

It is Exhibit GG accompanying the 1st set of respondent?s counter affidavit. The appellants promptly deposited the N10,000 on the same 31-10-2003.

?It is glaring from the foregoing that the appellants after filing their notice of appeal were not interested in taking any step in furtherance of the appeal and did nothing to

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enable the production and transmission of the record to this Court by the Registrar of the trial Court for about 4 years until they were woken from sleep by the 16-3-2001 letter from the Registrar of the trial Court (Exhibit AA) following the complain of the 1st set of respondents to the said registrar (Exhibit BB). After the said registrar?s letter, it took the appellant 3 years to write applying for compilation of record on 17-10-2003. This refusal or failure of the appellants to timeously take steps to enable the registrar of the trial Court compile the record of this appeal after the judgment of the trial Court in 1999 was the primary cause of the absence of the record. The retired Chief Judge was then still in service and even issued the order of stay of the judgment in these cases in December 2000. It is obvious that the record of the proceedings in those cases would have been more readily available and traceable within 1 or 2 years after judgment. But the appellants did nothing within that period to enable the registrar compile the record of appeal . By December 2000 when they obtained the order staying execution of the judgments, one year had

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expired since the judgment in those suits were rendered.. They were more concerned with obtaining the stay order and did not border to deposit money for compilation of the record of appeal .

After the appellants? letter of 17-10-2003, when the Registrar of the trial Court could not compile and transmit the record of appeal to this Court, the appellant by a motion on notice filed on 25-10-2004, applied for an order of this Court compelling the Registrar of the trial Court to compile and transmit the record of appeal to this Court within 30 days. This Court granted the order on 10-2-2005. It is Exhibit 2 attached to the affidavit in support of the appellants? application. It is not in dispute that the trial Court registrar did not comply with this order. That is why the appellants applied to this Court for an order directing the Chief Judge of the trial Court to assign the suits already final determined on the merits on 12-11-1999 to be retried by another Judge of the trial Court on the grounds thusly ?
7. ?By a letter dated 14th April, 2005, the Chief Registrar of the Anambra State High Court admitted the Registry?s

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inability to comply with the orders of this Honourable Court of 10th April, 2005 and to compile and transmit the said record owing to the fact that the record book of the trial Court could not be found.
8. Further to (7) above the appellants/applicants filed a motion dated 22nd September, 2005 praying this Honourable Court for an order to direct the Chief Judge of the Anambra State High Court to re-assign the matter to another Judge for a trial de novo and the accelerated hearing of same.?

?There is no doubt that the appellants, themselves made no effort to follow up on the search for the record book said to contain the notes of the proceedings in the consolidated suits Nos AA/53/75 and AA/11/77. The need for this follow up by the appellants was informed by the fact that appellants? Exhibit 3 indicate that ?information was given that the record book containing the said record was the last record book used by a Chief Judge (Emeritus) before his retirement,? but failed to indicate that the information was verified or cross-checked and confirmed to be correct or wrong or that the record book could not be found or that it was found

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but did not contain the said record. The appellants who had the legal duty to produce the record of appeal should have followed up on the information concerning the record book of the retired Chief Judge. So while it can be correct that the efforts made by the Chief Registrar of the trial Court to trace the records so far have not yielded the desired results, it cannot be assumed that the record book cannot be found or is missing, especially in the face of the unverified information that the relevant records are contained in the record book used by a retired Chief Judge and without any statement that the said record book cannot be found. Exhibit 3 does not show that the possibility of finding the record book of the said retired Chief Judge is too remote. No reason has been given why the retired Chief Judge whose record book is said to contain the relevant record or the clerks and registrars that handled and had custody the said record book could not be involved in swearing affidavits concerning the where about of the record book. As the Supreme Court held in FBN PLC v. May Med. Clinics & Anor (supra), the learned trial Judge and the registrar and Clerks of the

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Court handling the manuscript ought to be involved in at least swearing to affidavits where records are either incomplete or said to be missing. In the Engineering Enterprises and May Med Clinics cases, it was found as a fact that the judgment challenged on appeal was missing or lost, in which case the possibility of finding same was too remote. In our present case it is not established that the Chief Judges record book cannot be found or is lost. What is clear from the available evidence is that it has not been traced. If the appellants had immediately after filing their notice of appeal on 12-11-2009, taken steps to cause the Registrar of the trial Court to compile and transmit the record of appeal to this Court, the difficulty in tracing the record of the proceedings or any part thereof would not have arisen as they would still have been readily and easily available. As is clear from Paragraph 9 of the counter affidavit of the 1st set of respondents, the said retired Chief Judge whose record book is said to contain the relevant records was still in service as he granted the appellants an order of stay execution of the judgment in the said proceedings in

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December 2000, about one year after the notice of appeal was filed. If the appellants had complied with the 16-3-2001 directive of the Registrar of the Court to deposit N5000 for the production of the record of appeal as the 1st set of respondents? Exhibit AA shows, three months after the said Chief Judge granted an order of stay of execution in their favour, the records would still have been readily and easily traceable and produced. The appellants delayed for another 3 years after that letter before starting the process of causing the Registrar to compile the record of appeal, at which time, it had became difficult to trace the records. It was the appellants long delay of 4 years before depositing money for the registrar of the trial Court to compile and transmit the record of appeal to this Court that rendered the records now remote to trace. So the absence of the record of this appeal is caused by their own defaults.

The challenge the Courts have often faced in dealing with the legal effect of the absence or loss of the record of the proceedings from which an appeal arose is how to balance the competing demands for justice from both

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sides, especially in cases where the absence or loss of the record is completely due to the default, carelessness or negligence of the Court and is not caused by any default of any of the parties.

In Uwechie?s case, the appeal could not be heard because the record of proceedings appealed against was lost during the civil war and so the appellant who had secured an order of stay of execution of judgment before the civil war, had an advantage over the respondent who was being prevented by the said order of stay from reaping the fruits of the judgment, so long as the appeal remained pending. It was in this circumstance that the Supreme Court held that since the appellant had a duty under the extant rules so compile and transmit the record of the appeal, in the absence of such record of appeal the respondent was entitled ex debito justiciae to have the appeal terminated. Commenting on this decision in Engineering Enterprises case, ESO JSC held that ?I am of the view that in so far as the facts of Uwechies case go, the Supreme Court took the right course in coming to the side of the plaintiff who had got judgment and who was debarred from the

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fruits of the judgment, by the order of stay of execution of the judgment.?

The Supreme Court in Obiamalu held as it did in Uwechie?s case, observing ex debito justiciae that ?the result is the paradoxical situation where the defendants who lost in the High Court are now being better placed in the whole encounter than the plaintiff who had indeed won the action.?

In the Engineering Enterprises case the Supreme Court held that ?the Court of Appeal, in deciding whether to strike out the appeal or to order a retrial, ought to have been guided by the principle of adhering to constitutionality.
It seems to me that striking out the appeal as the Court of Appeal did, was tantamount to the condonation by the Court of Appeal of the Constitutional wrong committed by the Kaduna State. The Court was therefore wrong in making the order striking out the claim.
In my considered view, the only order that may be consistent with the plaintiff?s Constitutional rights of appeal is to give him another opportunity to start all over so that his right of appeal, which he was deprived of, may be restored if the result of the

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hearing de novo so warrants.?

The decision of the Supreme Court in that case was influenced by the fact that the Registrar of the trial Court under the extent rules, had the duty to compile and transmit the record of appeal to this Court, the loss of the judgment was caused entirely by the default and negligence of the Court registry officials and no blame could be placed at the door of either party and the appellants had promptly paid all the necessary fees in compliance with the extant rules for the Registrar of the High Court to compile and transmit to this Court the record of appeal.

?The decision was also influenced by the peculiar facts of the case such as the fact that the judgment was lost and could not be acted upon as its terms were unknown or uncertain, leaving the respondent to continue to enjoy its revocation of the appellant?s certificate of occupancy and appropriation of appellant?s right of occupancy of his land without judicial scrutiny or pronouncement on the legality of such act. As Aniagolu JSC held-?By this loss of the said judgment, there was no judgment available in the suit which could be acted upon,

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whether for the plaintiff or for the defendant, although it could be said that what was definitely known and accepted on all sides, was that the plaintiff?s case was, in that judgment, dismissed. In the circumstances, would it not be a better, practical and more reasonable approach for the case to be retried so that there could be a judgment in being? That is, assuming that one was merely acting only on a practical approach in the interest of justice.
Again, the case involves a citizen?s rights-right to property and right of appeal. Section 40 of the Constitution, 1979, guarantees the citizen the right against sequestration of his property while Section 33 of the same Constitution grants him the right to fair hearing of his disputes.
The Courts must incline to the protection of the rights of the individual?s property. Therefore, since the judgment of the High Court was lost (and lost by the High Court) the Court of Appeal could not, in deference to the right of the appellant to appeal ? a right which had vested in the appellant exercising its right of appeal ?x-ray that judgment, leaving the proper approach by this Court

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clearly to be order for a retrial so that all the issues involved could be well articulated and properly ventilated.
If the appellant?s allegation was true, that the officials of the Ministry of Lands and Survey, who had systematically and progressively supervised the appellant?s developments on the land, had turned round, after the huge amount of N700,000.00 had been expended, to revoke the appellant?s certificate of occupancy, then a case of estoppels may well have arisen and although that is not the issue in this appeal, yet, upon that allegation coupled with the suggestion of fraud, this Court should be reinforced in its determination to order a retrial, even if fraud, in its narrow and technical meaning, has not, in fact, been established.
The issue involved in this appeal is one of balance of justice. I conceive that where on a balance of justice a citizen?s right is to be protected, this Court, as a Court of last resort, must not hesitate, in keeping with the accepted legal principle of ubi jus ibiremedium, even to pronounce upon a new head of remedy, suitable to meet an exigent situation and dictated by the particular

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facts and circumstances, on the principle that in a new and advancing world, in the protection of the rights of the individuals, the categories of remedies may never be closed. In that way the law is adapted to meet the needs of society and not used to foreclose the legitimate yearning demands of the right of the citizenry.
In the instant appeal, the appellant has done all that it is expected to do. It has appealed, and that within time. Its right over a piece of land, and its N700,000.00 worth of development on the land, are matters at stake.
It would be a gross act of injustice for such a citizen to be deprived of the right of exercising his right to appeal, by reason of the negligence of the Court itself, through the loss of the judgments appealed against. In those circumstances justice would manifestly appear not to be done unless a retrial was ordered, for, to do otherwise would amount to lending support to the veneer of suggestion that the Government of Kaduna State, having taken over the landed property of a citizen, is in collusion with the High Court to see that its act may not be made the subject of close scrutiny by the Appeal Courts,

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through the appeal Courts x-raying what has been done, by exercising their jurisdiction of surveillance in the appeals.
What would the ordinary person say in those circumstances ? that the government and the Court have joined hands together to muzzle the right of a citizen? As Lord Denning has once said (See: Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon and Ors (1969) 1 Q.B. 577 at 599), the test for justice is what a fair-minded ordinary person would say as to whether justice has been, or has not been, done. The essence of justice is fairness ? fairness to everyone.
It leaves a sour taste in the mouth, that a Judge having delivered his judgment would not allow that judgment to be critically analysed by the Appeal Court, by causing the judgment (whether by mistake or by accident) to disappear. Imagination would run riot in the mind of a fair-minded-right-thinking-citizen as to the justice of the case.
As I have already stated, the above represents the approach when one is looking at the issue from a practical approach, in the interest of justice. But the Court of Appeal, by majority, has decided that it was the duty of the

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appellant to produce the record for the Appeal Court. Is that so

In our present case, the appellants were entirely responsible for the 4 years delay to pay for the compilation of the record of appeal which created the situation in which the record book containing the relevant notes in the proceedings cannot be easily traced, the appellants as at 19-9-2013 when they brought this application, had the duty under the 2011 Court of Appeal Rules to compile and transmit the record of this appeal, the appellants took no steps to produce even the Court processes, including the judgment they used to obtain an order for stay of execution and all other processes available to them as enjoined by the Supreme Court in A-G Federation v. Bi-Courtney Ltd (supra) and the appellants took no step to follow up the verification of the information that the relevant record being searched for were contained in the record book used by retired Chief Judge and to obtain the said record.

?The balance of constitutionalities is not in favour of the appellants here. The acts and omissions of the appellants have created this situation of difficulty to trace a certain part of

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the record and the resultant lack of the record of this appeal and frustrated the process of hearing their appeal. They frustrated the exercise of their constitutional right of appeal. They cannot now rely on the situation they have created to plead that this Court should set aside the judgments in the consolidated suits and order a trial de novo so as to protect their Constitutional right to appeal, a right they were not serious to exercise, after obtaining a stay of execution of the trial Court.

?By filing the notice of appeal, they well able to secure an order of stay of execution of the judgment by which they prevented the respondents from enjoying the fruits of the judgment while the appeal remained pending, but comatose. This was why the respondents who were worried about the failure of the appellants to do anything in furtherance of the appeal long after filing the notice of appeal on 12-11-2009, filed their applications on 13-6-2013 and 11-7-2013 to dismiss this appeal for want of prosecution. Following those applications, the appellants on 19-9-2013 brought this application to prevent their appeal from being dismissed. The appellants who prevented

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the respondents from enjoying their judgment, who have frustrated the expeditious determination of their appeal, now again, to the further detriment of the respondents, seek to subject the respondent to further monetary expense, the hardship and uncertainty of a retrial of their suits that were duly and properly tried over a long period of time and the rights, interests and obligations of all the parties finally determined. The respondents now seek to terminate this appeal since the appellants are not interested in diligently prosecuting same, the appellants who are benefiting from the unduly protracted pendency of the appeal, are applying for the retrial of the suits to avoid the judgment. There can be no fair hearing where one party to a case dominates the judicial process and uses that dominance to the oppression and detriment of the other party. This is one of the principles that informed the Supreme Court decision in Uwechia v. Dr. Obi & Ors. The Supreme Court per Eso JSC in Engineering Enterprises case supported this principle that formed the basis of its decision in Uwechia.

?The appellants cannot be allowed to continue to benefit from

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a situation they created. A party who has refused to diligently exercise his right of appeal and frustrated the exercise of his said right by his own deliberate acts and omissions, cannot turn around to seek to use the frustration of the exercise of his right of appeal as a reason to prevent the respondent from reaping the fruits of his judgment and also subject him to the hardship and uncertainty of relitigating the matters that had been finally determined on merit. The frustration of the expeditious determination of the appeal by the appellants and the order of trial de novo at their instance will clearly violate the respondents? fundamental right to the determination of his claim within a reasonable time, as guaranteed them by S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

Learned SAN for the 1st set of respondents and Learned Counsel for the 2nd set of respondents have challenged the competence of the appellants? application and the legality of the order sought thereby by their arguments that since there is no prayer to set aside the judgment of the trial Court in the consolidated suits Nos. AA/53/75 and AA/11/77 and

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the said judgments have not been set aside and have remained subsisting an order to retry the suits cannot be made.

A judgment of a Court of competent jurisdiction remains valid and subsisting until it is set aside. It is not in dispute that the judgments in the said suits have not been set aside and therefore remained valid and subsisting. It is therefore absurd and incongruous to apply for an order that the suits that have been finally determined on merits by the said valid and subsisting judgments be retried. A trial de novo or retrial of a suit that has been finally determined on the merit by a valid and subsisting judgment is as illegal as it is incompetent. Such an order can only be validly issued after the said judgment has been set aside. In an application such as the one brought by the appellants for retrial of suits that have been finally determined on merit by the judgment of a Court of competent jurisdiction, the prayer for the setting aside of the judgment should be included in the motion and must precede the prayer for an order of retrial of the suit.
A retrial or trial de novo of a suit that had been finally determined on merit by the

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judgment of a Court of Competent jurisdiction, without setting aside the said judgment, amounts to relitigation of the suits and violate the principle of res judicata. This principle estopps both the Court and the parties from relitigating a suit that has been finally determined by a valid and subsisting judgment of a Court of competent jurisdiction. So the order prayed for by the appellants in their application is incompetent and illegal.

In the light of the foregoing, I hold that the appellants application by motion on notice filed on 19-9-2013 for an order directing the Chief Judge of the Anambra State High Court to assign consolidated suit Nos. AA/53/75 and AA/11/77 to a Judge of the Anambra State High Court, Awka Judicial Division for retrial or trial de novo and an order directing accelerated hearing of the retrial/trial de novo of consolidated suit Nos. AA/53/75 and AA/11/77 is as unmeritorious as it is incompetent. It is accordingly, hereby dismissed.

?I also hold, in the light of the foregoing, that the 2nd set of respondents? application by motion on notice filed on 13-6-2013 and the 1st set of respondents? application by motion

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on notice filed on 11-7-2013, for an order dismissing appeal No CA/E/30/2009 for failure or neglect to compile and transmit the record of the said appeal to this Court and an order vacating the order of the trial Court made on 14-12-2000 staying the execution of the judgment in the consolidated suits Nos AA/53/75 and AA/11/77 have merit. They are hereby granted as prayed for in the said two motions. Accordingly it is hereby ordered that Appeal No CA/E/30/2009 is hereby dismissed for want of prosecution consequent upon the appellants? failure to compile and transmit the record of the appeal to this Court in keeping with Order 8 Rule 18 of the Court of Appeal Rules 2011. It is also hereby Ordered that the Order of stay of execution of the judgments in suits Nos. AA/53/75 and AA/11/77 made on 14-12-2000 by the High Court of Anambra State per G.N. Onuniba CJ is hereby vacated or set aside.

?The appellants shall pay cost of N50,000 to each of 1st set of respondents and 2nd set of respondents.

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Other Citations: (2016)LCN/8802(CA)