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  • 2005-08-08
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F.B.N. Plc. vs. M.M.C.D.C. Ltd

FIRST BANK OF NIGERIA PLC.

V

MAY MEDICAL CLINICS AND DIAGNOSTIC CENTRE LIMITED

KEVIN CHUKWUDI NWACHUKWU

COURT OF APPEAL

( ABUJA DIVISION )

RAPHEAL OLUFEMI ROWLAND JCA ( Presided )

OLUFUNMILOLA OYELOLA ADEKEYE JCA

AMINA ADAMU AUGIE JCA

STANLEY SHENKO ALAGOA JCA

TIJJANI ABDULLAHI JCA (Read the Lead Judgment)

CA/A/43/2002

MONDAY, 16TH MAY, 2005

APPEAL - Final determination of - Need to hear appeal on merit before final determination thereof

APPEAL - Record of appeal - Burden of transmitting - On whom lies

ESTOPPEL - Definition of

JUDGMENT AND ORDERS - Judgment of trial court being appealed against -  Need to produce before appellate court

JUDGMENT AND ORDERS - Order of retrial - When appellate court may give

JUDICIAL PRECEDENT - Stare decisis - Doctrine of - Postulations of

JUSTICE - Demands of

LEGAL PRACTITIONER - Counsel - Duty of to court


PRACTICE AND PROCEDURE - Record of appeal - Burden of transmitting - On whom lies

WORDS AND PHRASES - ‘Estoppel’ - Definition of

Issue:

Whether in the light of the ruling of the Court of Appeal dated 28th November, 1998, the appropriate order to be made is an order of trial de novo or an order dismissing or striking out the appeal, since the record of proceedings is incomplete or incorrect.

Facts:

In 1992, the High Court of Justice, Kaduna State, coram Donli, J delivered a judgment in a suit filed by the plaintiffs/respondents against the defendant/appellant. Dissatisfied, the defendant lodged an appeal at the Court of Appeal. It is also filed an application for stay of execution which was refused by the lower court. The High Court, on application by the plaintiff/judgment creditor signed a writ of fi fa in the sum of N2,886,735.60. On further application by the appellant/judgment debtor, the Court of Appeal stayed execution on the condition that the appellant give a banker’s guarantee of the judgment sum in favour of the respondent. This, the appellant did. The court further directed that record of proceedings (appeal) be made available to the court within 30 days. It was at this stage that it was discovered that the record of proceedings of the lower court, exhibits tendered in the case and the judgment of court therein were missing. The judgment made available by the appellant had stated therein that the judgment sum was N500,000 (five hundred thousand naira) only. This the respondent opposed in an affidavit. He contended that the record of proceedings presented to the Court of Appeal was incorrect in that it contained additions and vital information were missing therefrom. A letter from the registrar of the lower court confirmed that the record of proceedings together with exhibits were missing. Consequently, the appellant herein filed an application to amend the existing notice of appeal which amendment sought to obtain an order of re-trial from the Court of Appeal. The Court of Appeal refused his application. The appellant appealed to the Supreme Court.

The appellant failed to obtain an order staying proceedings in the Court of Appeal consequent upon which the court went ahead with the hearing of the appeal and struck same out with an order granting the appellant liberty to re-list the appeal. The Supreme Court upheld the appeal of the appellant, allowed its application for amendment and ordered that the appeal in the Court of Appeal is heard by a different panel. This appeal is thus to hear the appellant’s appeal, as amended, seeking for an order of re-trial in the circumstances of the case.