Court name
Court of Appeal
Case number
YL 6 of 2016

Mela v Ciniki (YL 6 of 2016) [2016] NGCA 44 (16 May 2016);

Law report citations
Media neutral citation
[2016] NGCA 44
Case summary:

Civil procedure rules – appeal - challenge of record of proceedings

Headnote and holding:

This application was made in the course of an appeal, the respondent/ applicant filed an affidavit challenging the record of proceedings of the trial court which was duly replied in affidavit by the judge, member and registrar of the trial court.

The appellant/ respondent contended that this was contrary to the requirements of Order 7 Rule 1 of the Court of Appeal Rules 2011, which stipulates that an application to this court shall be by way of motion on notice and not merely by affidavits. The court held that the appellant/respondent’s position was misconceived since the issue of challenge of records is not governed by that provision. The court also noted that the appellant/ respondent had filed an affidavit challenging the record of proceedings in the trial court that was duly accepted but were arguing against its application for the opponents. The court applied the doctrine of stare decisis and the concept of rule of law, all are equal before the law and thus persons similarly situated in facts and circumstances must also be similarly treated by the courts. The application was held to be proper and meritorious for the just disposal of this appeal has merit and ought to be granted in the interest of justice. Accordingly, the application was granted with no order as to costs.

IN THE COURT OF APPEAL

Holden at Yola?
 

Between

APPELLANT

ABINATU MELA

and

RESPONDENT

PASTOR CINIKI 

 
JUDGEMENT

RULING

(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA):

On 28/10/2015, the Appellant/Respondent sought and obtained the leave of this court to appeal against the judgment of the court below delivered on 25/7/2011 in Appeal No. GM/102A/2010: Abinatu Mela V. Pastor Ciniki, in which the judgment of the Upper Area Court II Gombe was affirmed.

Consequent upon the leave so granted, the Appellant/Respondent filed the Notice and grounds of appeal on 2/11/2015. However, by a Motion on notice filed on 15/2/2016 the Appellant/Respondent sought and obtained the leave of this court to raise for the first time an issue of jurisdiction touching on the composition of the trial Billiri Area Court Poshiya and to amend the Notice and grounds of appeal to include an additional ground 6 challenging the competence of the trial Billiri Area Court Poshiya. The Amended Notice and grounds of appeal was deemed duly filed on 23/2/2016. By a Motion on notice filed on 1/2/2016 and granted on 4/2/2016, the Appellant/Respondent had obtained the leave of this court deeming the Record of Appeal as duly transmitted and served.

On 7/4/2016, the Respondent/Applicant filed the present application under consideration in this ruling, praying for the following reliefs, namely:

1.            Leave of the court to transmit additional record of appeal of the decision of the trial court in Suit No.73/09 between Abinatu Mela V. Pastor Ciniki dated 18/6/2010 as annexed and contained in the affidavit of the trial court’s Registrar dated and filed on 23/3/2016.

2.            Leave of the court to file the Respondent’s brief of argument out of time.

3.            An order to rely on the additional record of appeal compiled and transmitted to the court annexed to the affidavit of the trial court’s Registrar in Suit No. 73/09 between Abinatu Mela V. Pastor Ciniki.

4.            An order deeming the said additional record of appeal as duly compiled and transmitted.

5.            An order deeming the Respondent’s brief of argument herein attached and marked as Exhibit A as duly filed and served.

The grounds for the application are that upon the engagement of the services of the present counsel M.A. Galaya Esq., by the Respondent/Applicant to take over the conduct of the case of the Respondent from the former counsel, one Sunday Innocent Esq., the present counsel discovered upon inquiries that the proceedings before the trial Billiri Area Court Poshiya was conducted by the trial Area court judge and one other member as reflected in the affidavit filed by the trial Area court judge, the member and the Registrar of the said trial Area court and there was therefore, the need to transmit to this court the additional record of appeal of the trial Billiri Area Court Poshiya.  

The Motion on notice was supported by an affidavit of 4 paragraphs deposed to by one Ibrahim Mamuda, a litigation Secretary in the law firm of M.A. Galaya & Co, Counsel to the Respondent/Appellant, annexed to which is the proposed Respondent’s brief of argument.  In response, the Applicant/Respondent filed a 5 paragraphs counter affidavit deposed to by one Abubakar M. Ahmed, a litigation Secretary in the law firm of Aki, P. A. & Co, counsel to the Appellant/Respondent.

On 11/4/2016, when this aplication came up for the hearing, the parties were directed by the court to file their respective written addresses in support and in opposition to the said motion. In compliance thereto, the Respondent/Applicant filed his written address in support of the motion on 15/4/2016 and upon service the Applicant/Respondent filed his written address in opposition to the motion on 25/4/2016.  The stage was thus set for the hearing of the motion.

At the hearing of the Motion on Notice on 4/5/2016, the learned senior counsel to the Respondent/Applicant, M. A. Galaya Esq., appearing with Mrs. Doris Ayuba, adopted the written address in support of the motion as their argument and urged the Court to grant the application.  However,Counsel withdrew prayer 5 seeking an order deeming the Respondent’s briefs as having been duly filed and served.  On his part, P. A. Aki Esq., learned senior counsel to the Appellant/Respondent adopted the written address in opposition to the motion as his argument and urged the Court to refuse the application and to dismiss it for lacking in merit.

In this Respondent/Applicant’s counsel written address in support of the motion, a lone issue was formulated for determination, namely;

“Whether in view of the credible affidavit evidence placed and relied upon by the Respondent/Applicant, this Court should exercised its clear discretion in favour of the Applicant?”

On the other hand, in the Appellant/Respondent’s counsel written address in opposition to the motion, a lone issue was also formulated for determination, namely;

“Whether the prayers in the motion dated 3/3/2016 and filed on 7/4/2016, especially prayers 1, 3 and 4 are grantable by the Court?”

I have taken time to consider the affidavit and counter affidavit of the parties.  I have also calmly reviewed the submissions of the counsel to the parties in their respective written addresses as adopted by them at the hearing of this application and I am of the view that the sole issue for determination as formulated by the Appellant/Respondent’s counsel is more apt and is hereby set down as the lone issue arising for dtermination in this application, namely:

“Whether the prayers in the Respondent/Applicant’s motion on Notice filed on 7/4/2016 are grantable by this Court?”

In the Respondent/Applicant’s counsel written address, it was submitted that the position of law is clear where a party intends to challenge the record of appeal and that it can be done by way of filing an affidavit challenging the record of proceedings. Counsel relied on Summer & Ors V. F.H.A. (1992) 7 LRCN 100 @ p. 104.

Respondent/Applicant’s counsel further submitted that it was the amendement of the original Notice and grounds of appeal by the Appellant/Respondent to raise for the first time the isssue of  the composition of the trial Area Court that  has necessitated the present application and contended that the fresh issue of jurisdiction being raised, though belated, can still be raised at anytime even for the first time on appeal. Counsel relied on D. E. N. R Ltd V. T. I Bank Ltd (2009) Vol. 173 LRCN 114 @ p. 120.

Respondent/Applicant’s counsel also submitted that  the Respondent/Applicant had in line with the requirements of the law duly filed an affidavit challenging the record of the trial Area Court on the 15/3/2016 and caused same to be served on the trial Area Court judge, Registrar and the Court member on the 17/3/2016, who upon receipt of the affidavit had proceeded to file their respective affidavits on 29/3/2016 as required of them by law.

It was further submitted by Order 8 Rule 6 of the Court of Appeal Rules 2011, the Respondent who seeks to transmit additional record of appeal for the purpose of determining the said appeal by relying on the affidavit of the trial Court registrar has complied with the requirements of the law and contended that the affidavit before has explained sufficiently on the need why the Court should allow the additional record to be used in the hearing of the appeal, particularly on the fresh issue bordering on the composition of the trial Area Court as belatedly raised by the Appellant/Respondent by his amended Notice and grounds of appeal.  

It was further submitted that by virtue of Order 8 Rules 6 of the Court of Appeal Rules 2011, where a Respondent consider that there is need for additional record of appeal which is necessary for the just determination of the appeal, he is at liberty to compile and transmit same to this Court within 15 days and urged the court to hold that the Respondent/Applicant had sufficiently explained the cause of the delay in so doing as required of him by Order 7 Rules 10 of the Court of Appeal Rules 2011 and the inherent powers of this Court and to grant the application since in law an application of this nature is granted or refused purely at the discretion of the Court, which must be exercised judicially and judiciously.  Counsel relied on N. H. Int’Is. A. V. N. H.H (2007) 7 NWLR (Pt. 1032) 86 @ p. 113.

In the Appellant/Respondent’s counsel written address, it was submitted that looking at paryers 1, 3, & 4 on the motion papers it is clear that the Respondent/Applicant seems to be coming from the point of view that there is something wrong with the record that was transmitted to this Court and upon which the appeal was argued by the Appellant/Respondent and contended that based on this enigma, the Respondent/Applicant went into action to reconstruct what he perceived as the proper record which he now seeks to trnsmit before this Court, “as additional record” as can be decucted from paragraphs 3(v, vi, vii, viii, ix, x, xi, xii, xiii, xiv, xv & xvi) of the affidavit in support of the application.

Appellant/Respondent’s counel further submitted that there is a great difference between “additional record” and what the Applicant seems to be transmitting to this Court in that while prayers 1, 3 & 4 are talking about an additional record, the paragraphs of the affidavit relied upon are clear that what the Respondent/Applicant is bringing before this Court is a new record from every intent and purpose and contended that the record now before the Court is a certified copy of the record of proceeding as used at the court below, and which was not challenged by the Respondent/Applicant’s former counsel before the court below and that in law there is a presumption of genuineness and regularity of the record of proceedings of a court by virtue of Sections 146 adn 148 of the Evidence Act 2011 and thus this Court is bound by the said record untill the contrary is proved. Counsel relied on O. O. M. F. Ltd V. N. A. C. B. Ltd (2008) 165 LRCN 91 @ p. 106.

It was further submitted that in the instant case the Respondent/Applicant has made frantic efforts by filing before this Court various affidavits as deposed to in paragraphs 3(vii), viii & ix) in attempt to impugn the said record now before the Court and contended these efforts are bedevilled with so much discrepancies and suspicions as explained in the counter affidavit opposing the appilcation and in the absence of any explanation ought to be discountenanced by this court.

It was also submitted that without an application by the Respondent/Applicant as required by Order 7 Rule 1 of the Court of Appeal Rules 2011, all the affidavits purportedly challenging the record of proceedings before this Court are incompetent and liable to be struck out as they do not constitute an application properly brought before the Court neither do they seek for any relief from this Court.

Applellant/Respondent’s counsel finally submitted that what the Respondent/Applicant seems to be doing is to amend or substitute the record already in used by the previous Courts and contended that in law to challenge a duly certified record of preoceeding is not  a tea party but is one which must be in compliance with the requirement of the law and urged the court to dismiss the application, particularly prayers 1, 3 and 4 on the motion papers. Counsel relied on O. M. F. Ltd. V. N. A. C. B, Ltd (supra) and Garuba V. Omokhodion (2011) 200 LRCN 100 @ p. 130.

My lords, looking at the reliefs sought on the motion paper, it is really not difficult to see that the prayers sought have nothing to do with challenge to the record of proceedings of the trial Billiri Area Court Poshiya by the Respondent/Applicant.  However, a careful scrutiny of the affidavit in support and the other affidavits incorporated therein by reference would readily reveal that the Respondent/Applicant intends to challenge the record of Appeal by contending that there are ommissions of the name and signature of the member who sat in the proceedings with the judge of the trial Billiri Area Court Poshiya.  This issue, which obviously was not part of the prayers on the motion paper, has turned out to be as it appears the most contentious issue between the parties in this application.

In this application certain basic facts are of common ground between the parties and thus not in dispute and those facts are therefore, taken as duly established and requiring no further proof  by any of the parties.  see Smurtiff Ltd V.  M. V. Gongola Hope (2002) 22 WRN 30.  See also Unity Bank Plc V. Denclag Ltd & Anor (2012) LPELR 9729 (SC); Oshodi V. Enyifunmi (2002) 13 NWLR (Pt. 684) 298.

It is of common ground between the parties that the issue of the composition of the trial Billiri Area Court Poshiya was never raised as in issue in the appeals to the Upper Area Court  II Gombe, the High Court of Gombe State and this Court in the earlier appeal No. CA/J/229/2013: Abinatu Mela V. Pastor Ciniki, which was struck out by this Court on 21/7/2015 for being incompetent. It is also not in any dispute between the parties that in all those appeals it was the record of proceedings of the trial Billiri Area  Court Poshiya as contained in the record of Appeal deemed properly transmitted by this Court on 4/2/2016 in this appeal that was used by the parties. It is further not in dispute between the parties that the issue of  the due compositiom or otherwise of the trial Billiri Area Court Poshiya was being raised for the first time by the Appellant/Respondent in this appeal with the leave of Court granted on 23/2/2016.

In the present application, the Respondent/Applicant conceeds, and quite rightly and admirably too in my view, the fact that in law an issue of jurisdiction can be raised at any time and at any stage of the proceedings even for the first time on appeal as was done by the Appellant/Respondent vide the Amended Notice and grounds of Appeal filed on 15/2/2016 and deemed properly filed on 23/2/2016 by this Court.  See D. E. N. R. Ltd V. T. I. Bank Ltd (2009) Vol. 173 LRCN 114 @ p. 120.

However, the Appellant/Respondent having raised for the first time the issue of the composition of the trial Billiri Area Court Poshiya, it is in my view the bourden duty on the Respondent/Applicant to respond to this fresh issue and thus the only question arising in this application by way of the method by which the Respondent/Applicant has sought to meet the fresh issue raised by the Appellant/Respondent is simply this:

“Is the Respondent/Applicant entitled to transmit before this Court by way of additional record, the proceedings of the trial Biiliri Area Court Poshiya which he considers to be the correct  record of proceedings and if yes whether that would amount to challenging the record of proceedings of the trial Billiri Area Court Poshiya and thus grantable or not?”

I have no doubt in my mind and I have already clearly alluded to the fact that on the face of the motion paper the reliefs sought have nothing to do with a challenge to the record of proeedings before the trial Billiri Area Court Poshiya but simply seeking leave to transmit additional record and to deem the record of proceeding annexed to the affidavit of one Malik Ibrahim, the Registrar of the Billiri Area Court Poshiya as the additional record of Appeal in this appeal.

I shall therefore, consider this application in the alternative, firstly, as a mere application to transmit and deem additional record of Appeal by way of the record of proceedings of the trial Billiri Area Court Poshiya.  Secondly, as an application callenging the record of Appeal as duly deemed by this Court on 4/2/2016.

The contention of the Appellant/Respondent’s counsel is that the application though couched simply as one seeking to transmit additional record was one which was actually seeking to transmit a complete new record of Appeal to all intent and purpose and therefore, amount simply to a challenge to the Record of Appeal already before the Court as duly deemed properly transmitted by this Court on 4/2/2016 and which by law is presumed to be genuine and regular by virtue of Sections 148 and 168 of the Evience Act 2011 and with which this Court is bound until the contary is proved.

On his part, the Respondent/Applicant’s counsel had earlier contended that the leave sought is to compile and transmit additional record of appeal encompassing the record of proceedings of the trial Billiri Area Court Poshiya, which  was neccesitated by the additional ground 6 of the Amended Notice and Ground of Appeal by the Appellant/Respondent raising for the first time the issue of the due composition or otherwise of the trial Billiri Area Court Poshiya as an issue for consideration in this appeal and thus justifying the compilation and transmitting of additional record of the proceedings before the said trial Billiri Area Court Poshiya to this Court in this appeal so that justice would be served.

Now, the compilation and transmitting of additional record of Appeal is governed by the provision of Order 8 Rule 6 of the Court of Appeal Rules 2011, which provides as follows:

“Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty within 15 days of the service on him of the records to compile and transmit to the Court such records to be known as the additional records of Appeal”

By the above provision of the Court of Appeal Rules 2011, a Respondent is at liberty, that is to say without any need to obtain the leave of this Court, to compile and transmit additional record which he considers may be necessary in disposing of the appeal in so far as it was so done within 15 days from the date of service on him of the records of Appeal.

In the instant application, the record of appeal was deemed duly transmitted and properly served on the Respondent/Applicant on 4/2/2016.  By simple arithmetic calcualtion, the 15 days for the transmitting of additional record of Appeal by the Respondent/Applicant without the leave of this Court elapsed on 20/2/2016. In law, therefore, the Respondent/Applicant can no longer do so as of right but can only do so with the leave of this Court first sought and obtained, the 15 days period prescribed by Order 8 Rule 6 of the Court of Appeal Rules 2011 having expired. I therefore, find the instant Motion on Notice filed on 7/4/2016 by the Respondent as Applicant upon the expiration of the 15 days from the date of service on him of the record of Appeal on 4/2/2016 as proper.

Now, it is one thing for an application to be proper before the Court and quite a different thing for such a proper application to be meritorious.  I have considered the affidavit and counter affidavit evdience of the parties and taking into consideration the clear undisputed facts leading to the filing of this application for leave by the Respondent/Applicant and the total lack of any serious objection on the part of the Appellant/Respondent against the transmitting of additional record of Appeal except the contention that it amounted to a challenge to the record of proceeding of the trial Billiri Area  Court Poshiya and ought to have been by way of an application to that effect under Order 7 Rule 1 of the Court of Appeal Rules 2011, I hold that the application to compile and transmit the additional record of proceedings as annexed to the affidavit of the Registrar of the said trial Billiri Area Court Poshiya is highly meritorious as it would afford the Respondent/Applicant the facts on which he intends to meet the challenge to the composition of the trial Billiri Area Court Poshiya as freshly raised for the first time by the Appellant/Respondent in this Appeal. In my view therefore, whether or not the Respondent/Applicant by the transmitting of the additional record of Appeal would amount to an answer to the fresh issue raised for the first time by the Appellant/Respondent in this appeal is not the subject matter of this application and is thus completely premature and irrelevant to be of any utilitarian value in the consideration of this application.

I therefore, hold that this application intended to compile, furnish and transmit before this Court in this Appeal additional records on the composition of the trial Billiri Area Court Poshiya as considered necessary by the Respondent/Applicant for the just dispossal of this appeal has merit and ought to be granted in the interest of justice.  In my view, to refuse to grant the application would fester a situation of a game of hide and seek by the Appellant/Respondent to keep away from this Court all the relevant and necessary materials needed for the proper and just determination of the substantive appeal when it is heard. This brings to my mind the admonition of the Supreme Court in Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 @ p. 269, where the erudite Oputa JSC had opined thus;

“Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth”

Interestingly, at paragraph 12 of the affidavit of the Registrar of the Billiri Area Court Poshiya, it is deposed as follows:

“That I can come with the record book to this Court, which proceedings is in Hausa, the official language of the Court.”

The above paragraph remains instructive and points to a desire, in my view, to ensure that all the facts and circumstances sorrounding the record of proceedings of the trial Billiri Area Court Poshiya is presented before the Court in considering the issue as raised for the first time in this appeal by the Appellant/Respondent.  To refuse such desire to furnish before this court all the facts and circumstances of the record of proceedings of the said trial Billiri Area Court Poshiya would in my view amount to shutting the door on the face of justice and no court worth its name, and certainly not the penultimate court in the land, can do so no matter under what guise and I refuse to so do.

I consider the issues of discrepacies, inconsistencies, suspicions and all the other complaints by the Appellant/Respondent against the additional record of proceedings as annexed to the affidavit of the Registrar of the trial Billiri Area Court poshiya as issues which are better left for consideration and determination in the main appeal and thus clearly in my finding premature, particularly more so when both records, that is the record of appeal as deemded duly transmitted by this Court on 4/2/2016 and the additional record of proceedings now sought to be deemed as duly transmitted were each emanating from the same Registry of the trial Billiri Area Court Poshiya thus both enjoying the equal presumption of genuineness and regularly of law under Section 168(1) of the Evidence Act 2011.

I now turn my attention to the more contentious aspect of  this application, which is whether it is one challenging the record of appeal and if so whether it was brought in line with the requirements of the law and thus grantable? I have earlier reviewed the totality of the submissions of the learned senior counsel to the parties in their respective written addresses as duly adopted by them at the hearing of this application.

Interestingly, at the hearing of the appeal before the court below it was the Appellant/Respondent that had vociferously challenged the record of the proceedings of the trial Billiri Area Court Poshiya by filing an affidavit chalenging the record of proceedings without filing any formal motion on notice to that effect. In the circumstances therefore, I deem it pertinent to once again refer to the decision of the Supreme Court in Ajide V. Kelani (Supra) where it was observed most pognantly by the inimitable Oputa JSC to the effect that parties, and if I may humbly add as well as their counsel, must endeavour to at all time and always be consistent in the presentation of their respective cases before the Court both in evdience and submissions of law.  Indeed consistency is one of the hallmark of honesty and truthfulness in litigation as well as in other diverse sphers of life.

In the instant application, the Appellant/Respondent’s counsel had relied heavily on the provisions of Order 7 Rule 1 of the Court of Appeal Rules 2011 to contend that an application challenging the record of proceeding of a trial court before this court ought to be by way of a Motion on Notice supported by affidavit and stating the rule and ground for the relief sought.  On the other hand, it was contended by the Respondent/Applicant’s counsel that in law all that a party seeking to challenge the record of proceeding of a Court need do is to file an affidavit to that effect duly served on the Court and judge whose proceedings is being challenged as was done by the Respondent/Applicant in this application.

In considering these divergent contentions but before proceeding to resolving same, I deem it pertinent to refer to the position taken by the Appellant/Respondent’s counsel at the hearing of the appeal before the Court below where the similar issue of challenging the record of proceedings was rasied by the Appellant/Respondent before the Court below.  I shall for the avoidance of possible misstating  of the submissions by counsel in the record of appeal, of which I take judicial notice thereof of its content in this application, reproduce verbatim the relevant portions of the submissions of  both counsel on this issue therein and to juxtapose it with the submissions in the present application to see if there has been any consistency on the part of the Appellant/Respondent’s counsel on this issue to deserve any serious consideration.

At page 158 of the record of Appeal, P. A. Aki Esq., the learned senior counsel to the Appellant, while arguing the appeal before the court below, had submitted inter alia thus;

Aki Esq,:  We have affidavit  challenging the record dated 25th Febuary 2011. We serve the Respondent and Upper Area Court Judge II stating how the (sic) imported into the proceedings the (sic) that did not happen at the locus.  The deposition in paragraph 3 - 21 of the affidavit was served.  The Respondent has responded through a counter affidavit dated 2nd May 2011.  A copy served on us has no deponent. Where a party intends to challenge the proceedings of the court, especially what is written down is not what transpired, what the law expects him to do is to file an affidavit stating the true position of the case and to care (sic) the same affidavit to be served on the judge or whose proceedings is being challenged. It is the duty of that Court if they are certify (sic) to respond.  See Daramola V. AG. Ondo State (2006) 14 WLRN 120 @ p. 123; Samor & Ors V. F.H.A (1992) 7 LRCN 100 @ p. 104.  The affidavit was served on the Court, the affidavit of service is here, that Court has not responded.  The counter affidavit is only that of the Respondent. Those two affidavits can be resolved by looking at the records wall over (sic) calling any evdience.  See page 27 of the Record of the Upper Area Court record. There was no proceeding after that visist to the locus.  The duty of the judge is that of an impartial umpire he has no duty to help any of the parties in this case.  The Upper Area Court judge was on a flair (sic) of his own when he recorded what did not transpire.  He is not supposed to do so”

At page 163 of record of appeal, in his reply submissions , Sunday Innocent Esq., learned counsel to the Respondent before the court below had submittted inter alia thus:  .

“Sunday Innocent Esq,: On the last ground, the Appellant failed (sic) an affidavit on affidavit (sic) challenging the record it made available to this Court dated 25th Febuary, 2011.  We filed a 6 paragraphs counter affidavit.  We rely on our deposition.  The record before this Court is not disorted by any one and the Upper Area Court Judge did not document (sic) into the arena of the dispute.  It is settled law that the parties and the Court are bound by the records of the Court and any person up (sic) reaching the record must come formally i.e by filing motion and come with the correct record otherwise the Court cannot specualte.  Oglio Memorial Farm Ltd & Ors V. N.A.C.B  Ltd & Ors (2008) Vol. 165 LRCN 91 @ pp. 93 – 94.  It is an abuse of Court process to argue the appeal on the same record and also challenge the recrod.”

At pages 164 – 165 of the Record of Appeal, in his reply on points of law, the Appellant’s counsel, P. A. Aki esq., had submitted inter alia thus:

“Aki Esq,: On points of law, on the issue that the person challenging the record must come by way of motion, the two authorities cited did not say so.  See Samun V. F.H.A (supra).  On the issue of abuse of Court process, the issue of producing the record of proceeding is not what is in issue before this Court. What we are challenging is the record made by the Upper Area Court.....”

It would appear that to the Appellant/Respondent’s counsel if it is the Appellant that intends to challenge the record of proceeding of the trial Billiri Area Court Poshiya all that he need do is to file an affidavit challenging the record of proceedings and not to file any motion to do so. However, if it is the Respondent/Applicant that intends to challenge the record of  proceedings he can only do so by filing a motion on Notice to that effect as mere affidavit to that effect would not suffice.  What therefore, is good for the gander is not good for the goose.  In my view, this must clearly be the satndard prevailing in the time of the “Animal Farm”  when all animals are not equal.  Happily, before the law by the doctrine of stare decisis and the concept of rule of law, all are equal before the law and thus persons similarly situated in facts and circumstances must also be similarly treated by the Courts.

My Lords, having observed as above that the Appellant/Respondent by his summersault contentions in the instant application is clearly being inconsistent, let me now proceed to consider this second arm of the sole question arising from the lone issue for determination in this application, namely; whether this application  if it amounts to a challenge to the record of proceedings of the trial Billiri Area Court Poshiya is grantable or not?

The law on the procedural requirements and steps necessary to be taken by a party who intends to challenge the record of any Court proceedings have been well settled and it is that a party who intends to challenge the record of proceedings of a Court must file an affidavit challenging the record of proceedings setting forth the particulars of the challenge against the record of proceedings of the court. The affidavit when filed shall be duly served on the court and judge whose record is being challenged. Upon service on the court and judge, it is left for the court and or judge to file, if they so desire to contest the challenge to their record of proceedings, a counter affiadvit debunking the challenge or an affidavit accepting the particulars of the challenge to their record as pointed out by the party so challenging the record of proceedings. These procedures are sine quo non in law because a record of proceedings is by law presumed to be genuine and correct until the contrary is proved. Consequently, both the parties and the court are bound by the record of proceedings and an appellate court cannot go outside the record of appeal to decide the issues in the appeal before it. See Agbeotu V. Brisibe (2005) 10 NWLR (Pt. 932) 1. See also Idakula V. Richards (2001) 1 NWLR (Pt. 693) 111; UBA Plc. V. Ujor (2001) 10 NWLR (Pt. 722) 589; Mokwe V. Williams (1997) 11 NWLR (Pt. 528) 309; Agwarangbo V. Nakunde (2000) 9 NWLR (Pt. 672) 341; Ogun V. Akinyelu (1999) 10 NWLR (Pt. 624) 671; Ngige V. Obi (2006) 4 NWLR (Pt. 999) 1; Gonzee V. NERDC (2005) 22 NSCQLR 735; Adeyiga V. Military Governor of Lagos State (1999) 11 NWLR (Pt. 628) 1; Garuba V. Omokhodion (2011) LPELR 1309 (SC); Orok V. Orok (2013) LPELR 20377 (CA); Odofin V. Agu (1992) 3 NWLR (Pt. 229) 315; Fawehinmi Construction Co. Ltd V. OAU Ile Ife (1998) 6 NWLR (Pt. 533) 171.

In the instant application, the Respondent/Applicant filed an affidavit challenging the record of proceedings of the trial Billiri Area Court Poshiya as transmitted to this court as the record of appeal and deemed on 4/2/2016 and same was duly served on the trial Billiri Area Court judge, the member and the Registrar of the said trial Area Court. In reaction, they each filed their respective affidavits in this court on 23/3/2016. To the affidavit of the Registrar of the said trial Billiri Area Court Poshiya was annexed and the entire record of proceedings of the said Trial Billiri Area Court, in both the official Hausa language and the translated English version with an affirmation to produce the original record of the Hausa language proceedings before this court if so ordered by this court.

Now, the contention of the Appellant/Respondent is that these elaborate steps taken by the Respondent/Applicant fall short of the requirements of the law vide Order 7 Rule 1 of the Court of Appeal Rules 2011, which stipulates that an application to this court shall be by way of motion on notice and not merely by affidavits as was done by the Respondent/Applicant.

I find this contention by the Appellant/Respondent’s counsel as clearly misconceived and not well founded. The issue of challenge of record of proceedings is not one governed by Order 7 Rule 1 of the Court of Appeal Rules 2011 but rather it is one whose procedure has long been well settled in our law in a plethora of judicial authorities as are replete in the law reports. See generally;  Agbeotu V. Brisibe (supra) 1; Idakula V. Richards (supra)111; UBA Plc. V. Ujor (supra) 589; Mokwe V. Williams (supra)309; Agwarangbo V. Nakunde (supra) 341; Ogun V. Akinyelu (supra) 671; Ngige V. Obi (supra) 1; Gonzee V. NERDC (supra)735; Adeyiga V. Military Governor of Lagos State (supra) 1; Garuba V. Omokhodion (supra)1309 (SC); Orok V. Orok (supra)20377 (CA); Odofin V. Agu (supra) 315; Fawehinmi Construction Co. Ltd V. OAU Ile Ife (supra) 171. 

It is my view therefore,  that the Respondent/Applicant fully complied with all the requirements in law as was incumbent on him as a party challenging the record of proceedings of a court and thus the instant application, even if it were to be one simply challenging the record of proceedings in any of the reliefs sought on the motion, of which there is none, is very proper to be considered on its merit at the appropriate stage at the hearing of this appeal.

It is in the light of the above, both on the state of the law and the facts and circumstances of this application, that I am of the view and I so hold that the stage at which decision is to be taken by this court whether the challenge to the record of appeal as already deemed properly transmitted to this court was made out or not on the affidavit and annexed additional record of appeal is at the stage of the hearing of the substantive appeal when all the allegations of inconsistencies, discrepancies, suspicions and contradictions shall be wholly considered alongside the issues, facts and circumstances of the substantive appeal and a decision taken one way or the other on the contents of the record of appeal vis a vis the additonal record of appeal but certainly not at this stage in this application before the hearing of the substantive appeal.

Now, looking at the record of appeal as deemed by this court on 4/2/2016, it would appear that when the Appellant challenged the record of proceedings of the trial Billiri Area Court Poshiya in the appeal before the court below, it was the same procedure of considering the challenge along with the substantive appeal that was followed by the court below and its decision was given as part of its final judgment in that appeal. See pages 190 – 192 of the record of appeal.

In the light of the above findings, I have no difficulty resolving the only isue for determination in the positive in favour of the Respondent/Applicant as against the Appellant/Respondent and hold firmly that prayers 1, 2, 3 and 4 on the motion on notice filed on 7/4/2016 by the Respondent/Appplicant are grantable, having been found to be highly meritorious.

In the result, the application of the Respondent/Applicant filed on 7/4/2016 be and is hereby granted and it is hereby ordered as follows:

1.            Leave be and is hereby granted to the Respondent/Applicant to transmit additional record of appeal of the trial Billiri Area Court Poshiya in Suit No. 73/09 between Abinatu Mela V. Pastor Ciniki dated 18/6/2010 as annexed and contained in the affidavit of the trial court’s Registrar dated and filed on 23/3/2016.

2.            Leave be and is hereby granted to the Respondent/Applicant to file the Respondent’s brief of argument out of time and to do so within 7 days from the date of this order.

3.            Leave be and is hereby granted to the Respondent/Aplicant to rely on the additional record of appeal compiled and transmitted to this court as annexed to the affidavit of Malik Ibrahim, the Registrar of the trial Billiri Area Court Poshiya filed on 23/3/2016.

4.            The additional record of appeal as annexed to the affidavit of Malik Ibrahim, the Registrar of the trial Billiri Area Court Poshiya filed on 23/3/2016 is hereby deemed as having been duly compiled, transmitted and served today, being 18/5/2016

5.            The prayer seeking to deem the Respondent’s brief of argument having been withdrawn and there being no objection is hereby struck out.

6.            Consequentially, it is hereby ordered that Malik Ibrahim, the Registrar of the trial Billiri Area Court Poshiya shall produce before the Registry of this court the original record of proccedings in the official Hausa language of the said trial Billiri Area Court Poshiya on or before the date to be fixed for the hearing of this appeal by this court.

7.            I make no order as to cost.

JUMMAI HANNATU SANKEY, J.C.A.

I had the opportunity of reading in draft the lead Ruling just delivered by my lord, Georgewill, J.C.A. and I agree with the findings therein.

The law is settled that the Record of proceedings of a court is presumed correct and accurate until the contrary is proved. Thus, the procedure for any person challenging the correctness of a record of proceedings is that he must swear to an affidavit setting out the facts or part omitted or wrongly stated in the Record. Such an affidavit must be served on the trial Judge and/or the Registrar of that Court who would then file an affidavit or counter affidavit in the event that he should wish to contest the affidavit. Otherwise, parties are bound by the contents of the proceedings as presented by the Registrar of the lower Court. See SPD V Brittania-U Nigeria Ltd (2014) LPELR-23126(CA) 1 at 25; Oloro V Kayode-Olawolu (2013) LPELR-21101(CA) 1 at 18-20; Irawo-Osan V Folarin (2007) LPELR-9040(CA)1 at 15-16; Gonzee (Nig) Ltd V NERDC (2005) 13 NWLR (Pt. 943) 634; Larmie V DPMS (2005) 18 NWLR (Pt. 958) 438; Sommer V Federal Housing Authority (1992) LRCN  (Vol. 17) 100 at 103-104; Ehikoya V COP (1992) 4 NWLR ((Pt. 233) 57.

In the instant application, what the Applicant expressly seeks and prays for simpliciter among other things by virtue of the prayers as crafted in the motion paper, (as has been rightly pointed out in the lead Ruling), is for leave to transmit an additional Record of proceedings of the Billiri trial Area Court Poshiya to this Court, in addition to the Record that is already before the Court in the Record of Appeal, and to deem the additional record as duly transmitted. Since that is so, then the heavy-weather that has been made by both learned Counsel in their written addresses over the issue of challenging and/or impeaching the Record of proceedings of the said trial Area Court is, in my view, both unwarranted and premature.

It is in the light of these observations that I too would grant the application. I abide by the consequential orders made in the lead Ruling.

SAIDU TANKO HUSAINI

I agree?

COUNSEL

M.A. Galaya Esq., with Mrs. Doris Ayuba for the Respondent/Applicant
P.A. Aki Esq., for the Appellant/Respondent

?