OKOKO & ORS. v OKOKO

OKOKO & ORS. v OKOKO

 


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON TUESDAY, 6TH JUNE, 2017


Appeal No: CA/OW/48/2014

CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A.


BETWEEN

MR. ANTHONY OKOKO AND 2 ORS.

(Appellants)

And

PETER OKOKO

(Respondent)


PRONOUNCEMENTS


A. APPEAL
1. Duty of an Appellant – Duty of an Appellant to place before the Appellate Court all relevant documents necessary for the determination of his appeal

It is the duty of the Appellants to place before the Court all the materials necessary for the proper determination of their appeal – see Uwechia vs. Obi (1993) 2 SC.1, Olorunyolemi & Anor. Vs Akhagbe (2010) 8 NWLR (pt. 1195) 48 Per AGBO, J.C.A. (Para 3) read in context

2. Record of Appeal – Whether an Appellate Court is empowered to act on an incomplete record

It is the duty of an Appellate Court not to hear an appeal on incomplete record. See Chief Thomas Okochi & 2 Ors. vs. Chief Animkwoi & Ors. (2003) 18 NWLR (pt. 251) 1. Per AGBO, J.C.A. (Para 4) read in context


LEAD JUDGEMENT DELIVERED BY AGBO, J.C.A. 


1. In this appeal, the Appellants distilled the issues set down below for determination:

(i) Whether the Court below had jurisdiction to hear and determine Suit No. A/388/2007 when there was no evidence of service of the Originating processes in the Courts file and the Order for substituted service of the Amended Statement of claim and other processes were not served in accordance with the Order of Court and when the Suit was statute barred (Grounds 1 & 6).

ii) Whether the Court below was right both in law and fact when it held that Exhibit 4 were forged documents and thus a nullity in the absence of any convincing evidence to that effect before the Court (Grounds 2 & 5).

iii) Whether the procedure adopted by the Trial Judge in hearing and determining the Suit before him without issuing a single hearing Notice to the Appellants or affording them opportunity to defend themselves do not constitute lack of fair hearing and against the Rules of Natural Justice”.

2. These issues, particularly issues ii and iii cannot be resolved without going into the evidence led and the record of what transpired in the Open Court. Unfortunately the record of appeal does not disclose what transpired in Court, not even for one day. The trial Court in her judgment made copious references to what transpired in the Open Court. This appeal cannot be determined without those portions of the proceedings deliberately left off the record of appeal.

3. It is the duty of the Appellants to place before the Court all the materials necessary for the proper determination of their appeal – see Uwechia vs. Obi (1993) 2 SC.1, Olorunyolemi & Anor. Vs Akhagbe (2010) 8 NWLR (pt.1195) 48.

4. It is the duty of an Appellate Court not to hear an appeal on incomplete record. See Chief Thomas Okochi & 2 Ors. vs. Chief Animkwoi & Ors. (2003) 18 NWLR (pt. 251)

5. This appeal is struck out with N30, 000.00 costs to the Respondent.

LOKULO-SODIPE, J.C.A.

1. I have read the leading judgment delivered by my learned brother RAPHAEL CHIKWE AGBO, JCA; and I am in complete agreement with the reasoning and conclusion of his lordship striking out the appeal.

2. Accordingly, I too make orders in the same tenor or manner as contained in the leading judgment including the order in relating to costs.

AWOTOYE, J.C.A.

I agree