CHIEF AJIBOWU A. OWOADE v FEDERAL REPUBLIC OF NIGERIA (CA/L/262/99) [2012] NGCA 17 (11 July 2012)

HELEN MORONKEJI OGUNWUMIJU

....... Justice, Court of Appeal

RITA NOSAKHARE PEMU

....... Justice, Court of Appeal

MUHAMMED AMBI-USI DANJUMA

....... Justice, Court of Appeal

CHIEF AJIBOWU A. OWOADE

Appellants

FEDERAL REPUBLIC OF NIGERIA

Respondents

RATIO DECIDENDI

1

WORDS AND PHRASES - "A FINAL ORDER": Definition of "a final order"

"What is a final order? A final order has been defined as an order that settles the dispute or contention between the parties as relating to the claim in issue. See NIREKO INTERPRISES LTD VS. FIRST BANK." Per DANJUMA, J.C.A. (P. 61, paras. A-B)

2

APPEAL - APPEAL BASED ON INCOMPLETE RECORD: Whether an appeal can be heard on incomplete record; duty of Court where the judgment of a Court is said to be lost and the record of proceedings or part thereof are missing

"It is clear from the Exhibits attached to the affidavit in support of this application particularly Exhibit AA7 already set out above that through the negligence or deliberate fault, the Registry of the Lagos Division of this Court has lost the Exhibits transmitted to it as per Exhibit AA10 on 4th October, 2002. I agree with learned Appellant's counsel that the issue cannot be left in limbo with the hope that the Exhibits already declared lost without a trace by Exhibit AA7 will eventually be found. I resolve the first and second question in the affirmative. The next question is whether there has been a violation of the rights of the Appellant/Applicant by the loss of the Exhibits. In Abiodun v. A.G Federation supra at Pg. 406-409, the court of Appeal interpreted Section 36(1) and (7) of the 1999 Constitution and held that a court or Tribunal trying an accused person for a criminal offence must of necessity maintain a record of the proceedings of the trial. And at the close of the trial, such an accused person who requests for it, is entitled to be given a copy of the judgment of that court/tribunal within seven days. Section 240 of the 1999 Constitution provides as follows: - 240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly. Order 17, Rule 7 & 9 of the Court of Appeal Rules provides as follows:- 7. (1) When- (a)the registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of the time within which such notice shall be given; or (b)the court below has granted leave to appeal, the registrar of the court below shall prepare the Record of Appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizances entered into or any other documents filed in connection with the appeal or application. (2)Subject to the provisions of Rule 9 of this Order, the registrar of the court below shall forward to the Appellant and to the Director of Public Prosecutions of the State from which the appeal emanated a copy of the record. Provided that if the Appellant is not in custody a copy of the record shall only be supplied to him on request. (3)The Court may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it may impose. 9.-(1)The Record of Appeal in appeals or applications relating to appeals from the court below acting in its original jurisdiction in criminal cases shall contain legible typed, stenciled and cyclostyled, or printed, copies of the following items arranged in this order - (a) the index; (b) the charge or information; (c) the Judge's notes of the evidence and minutes of the proceedings provided that if a shorthand note of the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or in substitution of the Judge's notes, as he may direct; (d) the judgment or any additional ground or explanation thereof; (e) the proceedings on or after sentence in so far as not included in the notes of hearing or minutes of proceedings; (f) all documentary exhibits put in at the trial including depositions read in consequence of the absence of a witness: Provided that in cases of books of accounts or other documents of great length, extracts of the relevant portions thereof only shall be included; (g) the notice of appeal or notice of application for leave to forwarding of proceedings of court below to the Registrar appeal, or notice of application for extension of time in which such notice shall be given. (2) It shall not be necessary for the Record of Appeal to contain copies of any recognizances entered into or documents filed in connection with the appeal or application other than those set out in sub-rule (1) of this Rule unless the court or a Judge of the court below shall otherwise direct." I am convinced that in the circumstances of this case, Order 17 Rule 7 (1) (b) and 9 (1) (f) cannot be obeyed by the Registry of this court. Thus, the Applicant has been deprived of the right to bring all his case on appeal before the court of appeal. Since his major complaint is that the documentary exhibits were not properly evaluated by the trial court, his inability to do this would do untold damage to his case on appeal. It is the duty of the court of appeal not to hear an appeal on incomplete records. In the peculiar circumstances of this case, the exhibits were the basis of the case made out against the Applicant. One of the grounds of appeal is that the judgment of the Tribunal was given against the weight of evidence-which consisted of the missing exhibits. Counsel cited Ekpemupolo Vs. Edremoda (2009) 8 NWLR Pt. 1142 Pg. 167 wherein Chief Okochi Vs. Chief Animkwoi was cited with approval to buttress the argument that the court is entitled to look at the records of proceedings binding on the parties and the court. In situations where the judgment of a court is said to be lost and the record of proceedings or part thereof are missing, the court have always leaned towards setting aside the lost/missing judgment and depending on the circumstances of the case, ordered a retrial unless such order of retrial would be oppressive. In Bello Vs. A. G. Oyo (1986) 5 NWLR Pt. 45 Pg. 828, the Supreme Court held inter alia that whenever the court finds that a Plaintiff has been wronged by a Defendant especially where the Defendant has breached the duty he owes to the Plaintiff consequentially causing a legal injury to the Plaintiff, it is the duty of the court to provide a remedy for the Plaintiff even if none had hitherto been prescribed in the statute books for where there is a wrong, there must be a remedy. In Okochi Vs. Animkwoi (2003) 18 NWLR Pt. 851 Pg. 1 at Pg. 23-24. Tobi JSC who read the leading judgment was of the view and on this there was no dissent by the other Justices on the panel that where all diligent efforts to procure the missing part of a record fails, the court should take the most painful decision of ordering a retrial in the case if the missing portion of the record is material to the appeal. Even though an order of retrial will prolong the litigation, an appellate court has no choice in the matter. It would be unjust to hear an appeal on incomplete record. In Ogidi Vs. The State (2005) 5 NWLR Pt. 918 Pg. 286, where the Supreme Court held that the provisions of S. 36 (7) of the 1999 Constitution required a court trying any criminal offence to keep a record of proceedings. It is therefore absolutely important for courts involved in the trial of such offences to scrupulously keep the records of proceedings in accordance with the demands of the Constitution. Failure to do may vitiate the trial as a nullity. In Akinmolarin Vs. Yeyebinu Western State Court of Appeal (1975) NWLR 45 held that as the judgment appealed against is not before the Appeal court, the Appeal court is unable to know how the final conclusion was reached by the learned trial judge, and an order of retrial before another judge would be made. In Engineering Enterprises Nig. Ltd. Vs. A. G. Kaduna (1987) 2 NWLR Pt. 57 Pg. 381, the Supreme Court Oputa JSC held as follows: "The courts have duty to investigate and discover what in any particular case will satisfy the interest and demands of justice and the interest and demands of justice will certainly be dictated by the peculiar facts and the surrounding circumstances of each case." The court ordered a retrial. Every wrong not the fault of a party must not be visited on that innocent party and where agents of the state are at fault, the innocent victim must be atoned. In Haastrup W. A. Ltd. Vs. Welding Eng. Co., the Applicants had applied to the Court of Appeal seeking an order of retrial by the trial High Court on the ground that the lower court's record is missing. The Court of Appeal granted the application and ordered a retrial. The court of appeal held unanimously that once an Appellant to the Court of Appeal has deposited money at the lower court for the making us and forwarding of the record of appeal to the Court of Appeal, he has discharged his duty. He is not under any obligation to do anything more. If the records have not been transmitted or are missing, it is the Registrar of the Court that has failed to do his duty. Katsina-Alu JCA (As he then was) stated categorically at Pg. 99 of the NWLR as follows: "I have no doubt whatsoever that the only order that may be consistent with the Appellant's constitutional right of appeal as provided by S. 220 of the 1979 Constitution 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 retrial so warrants." Per OGUNWUMIJU, J.C.A. (Pp. 36-42, paras. A-D)

3

CONSTITUTIONAL LAW - CONSTITUTIONAL RGHT OF A CONVICT: Constitutional right of a convict to appeal

"It is the constitutional right of a convict to appeal as by law provided. It is also his constitutional right to be afforded all the opportunities and facilities for the presentation of his case or defence as the case may be since an Appeal is a continuation of the trial, see IWE VS. SCOA NIG. LTD & 2530 2000 FWLR, OREDOYIN VS. AROWOLA (1989) 4 NWLR (Pt.114) 172 at 211, BLACKS LAW DICTIONARY 6TH EDITION page 96." Per DANJUMA, J.C.A. (P. 66, paras. A-B)

4

COURT - DUTY OF COURT: Duty of Court to do justice

"The judex shall do justice even when no law specifically provides for it and so long as an act is not specifically prohibited, it is the duty and within the powers and duties of the courts i.e judicature to do justice." Per DANJUMA, J.C.A. (P. 71, paras. D-E)

5

JUDGMENT AND ORDER - FINAL JUDGMENT/ORDER: When a judgment or order would be final

"....At page 437 of the report it is recorded thus:- Held unanimously dismissing the application): 1. On problem of classifying decisions of courts as final or interlocutory---. 4. On when a court decision is final:- No order in an action will be final unless upon the application out of which it arises given in favour of the other party to the action would have determined the matter in dispute. In other words, a judgment or order would be final when, whichever way it went, it would finally determine the right of the parties in respect of the application. The current application, is on the basis of the aforesaid authority, one capable of determining with finality the claims of the parties in the said application" Per DANJUMA, J.C.A. (Pp. 62-63, paras. E-A)

6

COURT - JURISDICTION OF COURT OF APPEAL: Whether the Court of Appeal has jurisdiction to entertain an appeal from a decision of the Failed Banks Tribunal

"I have looked thoroughly at the case of Arewa Paper Converters Ltd. Vs. NDIC supra. I cannot agree that the effect of the lead judgment of Mohammed JSC in that case is the general and sweeping proposition that the Court of Appeal has no jurisdiction over appeals from the failed Banks Tribunal. In that case the Supreme Court was obliged to interprete Decree 62 of 1999. In determining the appeal, the Supreme Court considered the provisions of section 5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree No. 18 of 1994 and sections 2 and 3 of the Tribunals (Certain Consequential Amendments, etc) Decree 62 of 1999. The relevant portions are set out below: Section 5 (1), Decree No. 18 of 1994:- 5 (1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunals) Decree 1984, as amended, in accordance with the provisions of that Decree. (2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the tribunal shall be final." Sections 2 and 3 of Decree No. 62 of 1999: 2 (1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under the enactments specified in the schedule to this Decree. (2) Accordingly, a tribunal established in any of the enactments specified in the Schedule to this Decree is hereby dissolved. (3) A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the Schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this subsection without further assurance than this Decree. (4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this decree is hereby preserved. (5) A decision or judgment of a Tribunal made before the commencement of this Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a decision or judgment of the Tribunal before the commencement of this Decree. (6) Where before the commencement of this Decree, a matter has been concluded in a Tribunal and the Tribunal was for any reason whatsoever unable to deliver the judgment, the judgment may be delivered by a Judge of the Federal High Court or the High Court of a State, as the case may be: Provided that the judgment shall have been written. (3) (1) whether any part heard matter is pending before any Tribunal on the date of making this Decree, the Judge: (a) may, if the parties to the proceedings agree in a civil cause, adopt the proceedings of the Tribunal concerned. (b) shall, in a criminal case, try the matter de novo pursuant to this Decree. (2) All new proceedings shall be brought before the court in accordance with the rules of procedure of the court concerned." It is trite that a case is authority for the facts and law it decides upon. In APC Ltd. Vs. NDIC, the Appellant had been charged before the Failed Banks Tribunal, Kano Zone and judgment entered against it under the undefended list procedure on 24/4/98. There was no appeal against the judgment by the Appellant up till 28/5/99 when the Tribunals (Certain Consequential Amendments) Decree No. 62 of 1999, dissolving the tribunals and transferring all pending part heard matters to the Federal High Court for hearing and determination came into force. On 22/10/99 the Appellant filed an application at the Federal High Court Kaduna to have the judgment set aside because it was not served the writ of summons before the default judgment against it by the Tribunal was given. The High Court refused the application and the Court of Appeal upheld the Respondent's Preliminary Objection to the effect that the Court of Appeal had no jurisdiction to entertain an appeal from a decision of the Tribunal. The Supreme Court also held the same view. The Supreme Court interpreted the provisions of S.5 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks Decree No. 18 of 1994 and S. 2 & 3 of the Tribunals (Certain Consequential Amendments etc.)) Decree No. 62 of 1999. My own understanding of the lead judgment of Mohammed JSC is that the High Court had no jurisdiction to set aside the judgment of the Failed Banks Tribunal and afortiori the Court of Appeal cannot have any jurisdiction to hear an appeal in such an event. We must remember that in the case of APC Vs. NDIC the Appellant did not appeal against his conviction against the decision of the Tribunal within 21 days to the Appeal Tribunal which was functioning in 1998 when it was convicted. By S. 5 (1) of Decree 18 of 1994 under which it was convicted it had only 21 days to appeal to the special Appeal Tribunal established for that purpose. Mohammed JSC on Pg. 432 paragraph H, Pg. 433 paragraph D-E; Pg. 435 paragraph E went to great pains to make the point that the relief sought by the Applicant before the Federal High Court could not be heard because the Appellant wanted a judgment delivered on 24/4/98 by the Failed Banks Tribunal set aside when at the time the judgment was delivered the Federal High Court had not been invested with jurisdiction in suits connected with Failed Banks. The Federal High Court was conferred with jurisdiction with effect from 28/5/99. The point made by His Lordship severally is that as at the time the Appellant was convicted and did not appeal, only the Special Appeal Tribunal could have heard his appeal. By 28/5/99 when the Failed Banks Tribunal and Special Appeal Tribunal were dissolved, his right of appeal had lapsed having not been exercised by him. The point was also made clearly by His Lordship that the only rights kept alive and transferred to the Federal High Court and afortiori to the Court of Appeal were in respect of cases pending before the Tribunal which shall be deemed to have been filed before the Federal High Court. Also, any order or judgment before the commencement of Decree 62 shall be preserved etc. His Lordship held that the jurisdiction of the Federal High Court is confined to part heard matters left behind by the defunct Failed Banks Tribunal at various stages of proceedings before the Tribunals became defunct. A completed case and judgment cannot thus fall within the category of a part heard matter to imbue the Federal High Court with jurisdiction. In the ordinary course of events you go to the same court or court of coordinate jurisdiction to set aside what you perceive to be a null judgment. What the Supreme Court says in that case was that the case of the Appellant could not be accommodated under S. 3 (2) of the Decree No. 62 of 1999 as a new proceeding or a part heard proceedings. See Pg. 436 paragraph E-F. It might have been different if the Appellant in that case had appealed within time to the special Appeal Tribunal or gone back to the Failed Banks to set aside the judgment. It is relevant to set out the portion of his Lordship's judgment on page 439 of the NWLR thus: "This is because the case of the Appellant was governed by the provisions of the Failed Banks Decree 1994 before its amendment in 1999 and therefore the rights and obligation of the parties in this appeal in respect of the case must be determined in accordance with the law prevailing before the amendment. See A-G. Lagos State Vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Alao Vs. Akano (1988) 1 NWLR (Pt. 71) 431; Uwaifo Vs. A.-G. Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih Vs. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 201; Rossek Vs. A. C. B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 474 and the recent decision of Adah Vs. N. Y. S. C. (2004) 13 NWLR (Pt. 891) 639 at 648, where Uwaifo, JSC observed: "It ought to be understood that the law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard." Thus, in the case at hand, upon the state of the law conferring jurisdiction on the Federal High Court as at 222-10-99 in respect of matters arising from the Failed Banks Decree No. 18 of 1994 as amended, the Federal High Court was deprived of the jurisdiction to entertain and determine the Appellant's application." Per OGUNWUMIJU, J.C.A. (Pp. 42-48, paras. G-G)

7

JUDGMENT AND ORDER - ORDER OF RETRIAL: Ingredients an Appellant must prove to sustain the charges in a civil Court for an order of retrial

"The apex court in CHIEF OF AIR STAFF VS. IYEN supra stated thus:- "It is a fundamental principle of law that courts of law, like nature, cannot act in vain. They must act for a purpose and for a purpose only. In other words, courts of law cannot make an order in vain. Let me show why an order of retrial if made will be in vain. By virtue of section 103(1) of Decree No.105 of 1993 as amended in order to sustain the charges in a civil court, the Appellants must prove the following ingredients:- (a) That the Respondent is subject to service law (b) That the Respondent was involved in a conduct, and (c) That the conduct of the Respondent was prejudicial to good order and service discipline. That was the decision in AKONO vs. THE NIGERIAN ARMY (2000) 14 NWLR (pt 637) 138 at 331. In view of the fact that the Respondent was retired from service on 27th April, 1996, the Appellant cannot prove their case, even if a retrial is ordered." Indeed on March 5th, 2012, the apex court again reiterated in the case of SENATOR JOEL DANIAMI IKENYA, HON ISA ALU AJIYA, ACTION CONGRESS OF NIGERIA (ACN) VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS APPEAL NO. C. 13/2012, (2012) 3 SC page 1 at 14 per MAHMUD, JSC in his lead judgment thus:- "As for the relief of rehearing of the appeal by a different panel of the Court of Appeal sought by the Appellants. In this court that relief cannot be granted because the 60 days under subsection 7 of section 285 of the Constitution of the Federal Republic of Nigeria, 1999 within which the Appellant's appeal must be heard and determined had already lapsed as the judgment of the Election Tribunal giving rise to the appeal was delivered since 10th November, 2011. It will therefore be a futile exercise, in my view, granting that relief." Applying this principle of law to the instant application and the view of the Respondent that the appeal be proceeded with, I hold that for the reasons earlier set out in this Ruling, it will be a futile exercise, which this court cannot embark upon, as there can be no head way." Per DANJUMA, J.C.A. (Pp. 72-74, paras. F-B)

8

CRIMINAL LAW AND PROCEDURE - PENAL PROVISIONS: How the provisions of any enactment capable of two interpretations should be interpreted in criminal trial and prosecution

"I should say that in criminal trial and prosecution or penal provisions, the provisions of any enactment capable of two interpretations would have it interpreted in favour of a person that might be adversely affected. The submission in that respect by the Appellant's counsel is the correct statement of the law." Per DANJUMA, J.C.A. (P. 68, paras. D-F)

9

COURT - POWER OF COURT OF APPEAL: Power of Court of Appeal to deal with any case before it on appeal

"It must be understood that an appeal is by way of a rehearing; see Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, (now 2011 Rules) and the case of EDJEKPO & ORS VS. OSIA & ORS. Indeed this court in exercise of powers under section 17 of the Court of Appeal Act 2004, shall be entitled to exercise all the powers of the trial tribunal by looking at the exhibits. In OSHOBOJA VS. AMUDA (1992) 6 NWLR (Pt.250) 960, UWAIS (JSC as he then was) held at 708: "There is no doubt that section 16 has given the Court of Appeal amplitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of 1st instance and in the present case the jurisdiction of the High Court." Per DANJUMA, J.C.A. (P. 67, paras. C-F)