Fatiha KutiCitation: (2023) 11 NWLR PT 1896 Pg. 395
Summary of Facts:
The 1st -34th respondents commenced an action at the Federal High Court by an originating summons against the 35th -37th respondents. Other parties were joined in the suit.
According to the 1st – 34th respondents, the 36th respondent (Peoples Democratic Party) conducted a primary election to nominate its candidates for the National and State Houses of Assembly election in Edo State, and they emerged as winners, but some other persons purportedly emerged winners at another primary election.
They further asserted that when the 36th respondent forwarded the list of their names to the 35th respondent (Independent National Electoral Commission), the 35th respondent refused to accept the list on the ground that there was an injunction restraining it from accepting the list.
After hearing the parties, the trial court entered judgment in favour of the 1st – 34th respondents. The appellants appealed to the Court of Appeal where they raised six issues for the determination of the appeal. In its judgment, the Court of Appeal found in favour of the appellants on issues 2, 5, and 6, but struck out the appeal for want of jurisdiction on the ground that the record of appeal before it was incomplete.
However, the Court of Appeal accidentally referred to the appeal as Suit No.”FHC/B/CS/78/2022″ The 36th respondent thereafter filed a motion on notice praying the Court of Appeal to correct the accidental slip in the concluding portion of the judgment. In its ruling delivered on 1st December 2022, the Court granted the order and consequently corrected the concluding portion of its judgment to state that it was the appeal that was struck out for want of an incomplete record of appeal.
In their brief argument, the appellants expressly abandoned grounds 1, 3, 4, 5, and 6 of their notice of appeal, except ground 2 therein. They formulated a sole issue for determination on whether the Court of Appeal was right when it failed to hold that the non-production of the INEC report by the 1st to 34th respondents amounted to withholding of evidence having regard to the facts and circumstances of the appeal.
The 36th respondent filed a preliminary objection to the competence of the appeal. The 36th respondent argued in its objection that the appellants’ appeals to the Supreme Court all arose from a single appeal to the Court of Appeal and a single judgment of the Court of Appeal.
It added that the appeals could have easily been consolidated into one appeal, but were deliberately split into several appeals to annoy, harass, irritate, and intimidate the respondents.
The 36th respondent also argued that the issue and argument raised by the appellants on the non-production of the INEC report was fresh not canvassed or resolved at both the trial court and the Court of Appeal, and was raised at the Supreme Court without the required leave of court.
The 36th respondent further contended that the argument on the sole issue in the appellant’s brief of argument was on the interpretation of section 84(1) of the Electoral Act and that the same issue was raised and resolved in favour of the appellant at the Court of Appeal under the appellants’ issue No. 5 before that court.
Summing up, the 36th respondent contended that the appellant’s appeal was needless and constituted an abuse of court process. Responding to the 36th respondent’s objection, the appellants contended that each of their appeals dealt with separate decisions of the Court of Appeal delivered on separate subject matters. They argued that the other appeals related to interlocutory decisions of the Court of Appeal before the judgment of the Court of Appeal and the decision after the judgment.
The appellants contended further that their submissions under their issue No. 5 before the Court of Appeal included a reference to the 1st – 34th respondents’ failure to produce any INEC Report of their primaries, which the 1st – 34th respondents claimed was monitored by INEC.
According to the appellants, the Court of Appeal made a pronouncement on the issue, but they were dissatisfied with the resolution of that issue by the Court of Appeal hence they raised the issue before the Supreme Court.
The 37th respondent also filed a preliminary objection to the competence of the appeal. He asserted that the appellants compiled the record of appeal, but omitted the counter-affidavit, exhibits, and written address filed by the 36th and 37th respondents from the record of appeal the appellants transmitted to the Court of Appeal and that Supreme Court.
He argued that because of the incomplete record of appeal, the Court of Appeal and the Supreme Court lacked the jurisdictional competence to entertain the appeals.
Countering the 37th respondent’s objection, the appellants argued amongst other grounds that the asserted incompleteness of the record of appeal was already an issue in another appeal between the parties; that if court processes were omitted from the record of appeal as asserted by the 37th respondent, it meant the omitted court processes were completely irrelevant to the hearing and determination of the appeal at the Court of Appeal.
He further argued that the issue was not raised as a preliminary point at the Court of Appeal; and that the 37th respondent was at liberty to compile and transmit additional records.
The 36th respondent, on its part, filed a cross-appeal against the judgment of the Court of Appeal. Responding to the cross-appeal, the 1st – 35th appellants argued a preliminary objection on the ground inter alia that the 36th respondent filed a single notice of cross-appeal against two different decisions of the Court of Appeal delivered on the same day.
In determining the appeal and cross-appeal, the Supreme Court confirmed from the record of appeal that the amended counter-affidavit, exhibits, and written address filed by the 36th respondent and the amended counter-affidavit filed by the 37th respondent were not contained in the record of appeal, which the appellants compiled and transmitted to the Court of Appeal and the Supreme Court.
Held: The Supreme Court unanimously dismissed the appeal and the cross appeal.
The following issues were raised and determined by the Supreme Court:
1. On whether the appellant can appeal against a judgment or part of the judgment in his favour –
An appellant cannot appeal against a judgment or part of a judgment that is in his favour. He can only appeal against a judgment or part of a judgment that is against him or his interest.
Where an issue was resolved in favor of an appellant, he cannot be considered an aggrieved party to qualify him to appeal against the issue that was decided in his favor.
In the instant case, the appellants argued that a part of their submission under their issue No. 5 before the Court of Appeal included a reference to the 1st- 34th respondents’ failure to produce any INEC Report of their primaries and that it was their dissatisfaction with the resolution of that issue by the Court of Appeal that prompted them to raise the issue before the Supreme Court.
However, that argument was misconceived because the Court of Appeal resolved issue No. 5 in their favor. In other words, the appellants appealed against an issue that was resolved in their favour.
2. On Nature of appeal –
An appeal is an invitation to a Higher Court to review the decision of a lower Court, to find out whether, on proper consideration of the facts and issues, and the applicable law, the lower Court arrived at a correct decision.
It is an invitation to the higher Court to reconsider the ratio decidendi or the reason for the decision of the lower Court to see whether, on the facts, issues, and the applicable law, the lower Court arrived at a correct decision.
An appeal is a challenge against the decision of a lower court and is predicated or grounded upon what the lower court decided in its judgment and not on what the lower court did not decide on in its judgment.
3. On the Nature of appeal and what rehearing of appeal entails –
An appeal is a form of rehearing. As Such the court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire record of appeal comprising the proceedings of the trial court and the Court of Appeal and the evidence adduced thereat to such an extent as the ground of appeal demands.
4. On whether the ground of appeal against a non-existent decision and issue formulated therefrom are the competent-
A ground of appeal and whether any issue predicated upon a non-existent decision is incompetent and liable to be struck out.
5. On Need for party to be consistent in presenting case –
An appellant must be consistent in the case he presents before the court, and must not use the forum of an appeal to introduce into his case issues that were not before the lower court, and on which the lower court had no opportunity of stating its views.
In this case, the issue of non-production of INEC Report or that the non-production of same amounted to withholding of evidence was not raised or dealt with at the Court of Appeal.
Therefore, it was wrong for the appellants to appeal against what was not decided at the Court of Appeal, and the Supreme Court could not entertain such an appeal.
6. On whether and when fresh issues can be raised on appeal –
An appeal is not the commencement of a new case. Therefore, no new issues are raised on appeal except with leave of the court having been first sought and obtained.
7. On Importance of record of appeal –
The record of appeal is the basis for the determination of an appeal. It is an indispensable and integral part of the proceedings at the appellate court. The record of proceedings serves as the reference material for the appellate court on which to base any of its findings.
In the circumstances, the importance of the transmission of a complete record to the appellate court cannot be over-emphasized.
8. On complete record of appeal –
A complete record of appeal consists of all the proceedings in the lower Court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered.
9. On whether or not the appellate court has the competence to entertain an appeal based on the incomplete record of appeal –
An appellate court is devoid of the jurisdictional to entertain an appeal based on an incomplete record of appeal.
10. On the person saddled with the responsibility of transmitting a complete record of appeal to the appellate court –
The responsibility of transmitting the complete record of appeal to the appellate court rests with the registrar of the court unless a party to the appeal applies for a departure from the rules regarding the compilation of the records.
In such circumstances, the party compiling the records takes full responsibility for compiling and transmitting the complete records and cannot be heard thereafter that he failed to transmit the complete records.
In the instant case, the appellant’s submission that the omitted counter affidavits were irrelevant, having not been referred to by the court or parties in consideration of issues raised was wrong.
11. In determining whether the appellant can file one notice of appeal or cross appeal against two decisions delivered on the same date –
No rule prohibits the filing of a single notice of appeal or notice of cross-appeal in a civil appeal against two decisions of a lower court delivered on the same date.
This approach has been encouraging as a viable means of discouraging unnecessary delays caused by appealing separately against an interlocutory ruling, particularly in pre-election or election matters.
In instant case, the single notice of cross-appeal filed by the cross-appellants against two different decisions of the Court of Appeal both delivered on 23rd November 2022 was competent to be heard and determined on merit.
12. In the issue of whether the appellant can file one notice of appeal or cross appeal in respect of two cases without leave of the Court –
A party is at liberty to file a single notice of appeal or notice of cross-appeal against two decisions of a court delivered on two distinct dates in the same case or file two notices of appeal against the same decision, all within time.
However, a party cannot tile a single notice of appeal or cross-appeal on two cases even if they were consolidated and have the same record of appeal without the express leave of the court to that effect.
13. On the worrisome trend of incomplete record of appeal and its negative effects –
Per NWEZE, J.S.C. at pages 427-428, paras. H-A: “My Lords, permit me to say a few words on this current trend of missing or incomplete records of appeal being transmitted to an appellate court.
The issue of lost, missing, or incomplete record of appeal is not an isolated event. Deliberate leakage in the system, where records are intentionally lost or abandoned to frustrate the cause of justice, is a worrisome prospect.
It brings the integrity of the justice system under scrutiny. It is hoped that the digitalization of all court documents and records will bring an end to the spate of lost, missing, or incomplete records of appeal.”
Courtesy: Moruff O. Balogun Esq.
Iebu Ode, Ogun State. 08052871414, 09121207712 [WHATSAPP]
Emmanuel Tobi
Chinonso
Raphael
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