by 
An insight into the decision of the Supreme Court therein.
Citation: (2021) 6 NWLR PT. 1773 AT 391.
Courtesy: Moruff O. Balogun Esq.
Summary of Fact
By a writ of summons filed on 28th July 2003, the respondent sought, principally, a declaration to void his purported dismissal from the employment of the appellant conveyed in the letter dated 4th January 2000 and for other special and general damages.The parties exchanged pleadings and the case proceeded to trial. In support of his case, the respondent testified as PWI and tendered 14 exhibits, which were admitted and marked exhibits P1-P14. The appellant also led evidence in its defence denying the claims.
The trial court, having considered the case of the parties, entered judgment on 1st June 2007 in favour of the respondent. Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal. In the course of transmission of the record of proceedings to the Court of Appeal, the exhibits tendered by the respondent, particularly exhibit P1, which is the appellant’s Staff Handbook and upon which the trial court placed heavy reliance in reaching its decision, were not transmitted along with it.
The Court of Appeal, in its judgment of 4th July 2013, dismissed the appeal for non-production of some exhibits it considered vital to the appeal. Dissatisfied with the judgment of the Court of Appeal, the appellant appealed to the Supreme Court.
Held: Unanimously allowing the appeal.
The following issues were raised and determined by the Supreme Court.
On importance of complete record of appeal and proper order to make where there is incomplete record of appeal-
The compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by an appellate court.
Where the court is bereft of jurisdiction, the proper order to make is an order of striking out, not dismissal, the appeal having not been heard on the merits. Where the exhibits or other material aspects of the record cannot be traced at all, the consequential order to make is one remitting the case back to the trial court for re-trial. In the instant case, there was evidence from the record that the exhibits were transmitted to the Court of Appeal, albeit one day before the judgment was delivered.
All the material required for the just determination of the appeal was then before the court. Therefore, the Court of Appeal was wrong to have dismissed the appeal, which was not heard on its merit. The judgment of the Court of Appeal which dismissed the appellant’s appeal for incomplete record of appeal was accordingly set aside.
Per KEKERE-EKUN, J.S.C.:
In the instant appeal however, there is evidence before the court, vide the counter-affidavit deposed to on behalf of the appellant on 3/7/2003, in response to the affidavit of a facts of Anthony Ezike Esq., contained at pages 1-4 of the supplementary record, that the exhibits were eventually transmitted to the Court of Appeal on 3rd July 2013.
It was averred that the first time the appellant became aware of the non-transmission of the exhibits was when its counsel was served with Anthony Ezike’s affidavit of facts deposed to on 1/7/2013. It was further averred that on receipt of the affidavit, learned counsel immediately swung into action by making the necessary application to the Registry of the trial court vide a letter dated 1st July 2003, received on 2/7/2013 (exhibit A) and that the said exhibits were transmitted by the Registry to the lower court the following day, 3rd July 2013 vide a letter dated 2/7/2013 (exhibit B).
Although His Lordship, S.J. Adah, JCA made reference to the letter said to have been written to the Chief Registrar of the Rivers State High Court dated 11th June 2013, requesting for the transmission of the exhibits, the letter does not form part of the record of appeal before this court, nor is there any proof of service thereof on the said Chief Registrar.
On the other hand, the counter affidavit in the supplementary record, shows that the appellant’s counsel took steps immediately he became aware of the situation and the exhibits were promptly transmitted. The duty of the court is always to do substantial justice between the parties. Having not determined the appeal on the merits, I am of the considered view that the appeal ought not to have been dismissed.
If it had been struck out, the appellant would have had the opportunity to put its house in order and ensure the prompt transmission of the exhibits.
It is pertinent to observe also that this is not a case where the omitted part of the record cannot be traced. In such circumstance, the only option open to the court would be to remit the case to the trial court for retrial. In the instant case, there is evidence from the record that the exhibits were transmitted to the lower court, albeit one day before the judgment was delivered. All the material required for the just determination of the appeal is now before the court.
Having held that the lower court was wrong to have dismissed the appeal, which was not heard on its merit, the sole issue in this appeal is resolved in favour of the appellant.
On what constitutes record of proceedings and importance of-
A complete record 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. The record of proceedings serves as the reference material for the appellate court upon 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.
On presumption of correctness of record of appeal and bindingness of on court and parties-
The court, the parties and their counsel are bound by the record of appeal. It is presumed correct until the contrary is proved and neither the court nor the parties may go outside it for any reason. In the instant case, the record of appeal was presumed correct. The parties and the court were bound by it. Thus, the court was not permitted the indulgence of venturing outside the perimeters of its contents.
On evolution of rules governing compilation and transmission of records of appeal to the Court of Appeal-
The rules governing the compilation and transmission of records has evolved over the years.
Under Order 2 rule 13 of the Court of Appeal Rules 1981, the Registrar of the court from which the appeal arose had the sole responsibility of compiling and transmitting the record of appeal to the appellate court. There was no period of time prescribed for the conclusion of the exercise. As a result, it could take years for the record to be compiled and transmitted to the Court of Appeal. Appeals were frustrated and stagnated as a result of the failure or neglect of the Registrar to compile and transmit the record within a reasonable time.
Order 3 rule 13 of the Court of Appeal Rules 2002 also saddled the Registrar with the sole responsibility to compile and transmit the record with no stipulation as to time. In practice, in order to expedite the hearing of their appeals, appellants would seek a departure from the rules and the leave of the court to compile and transmit the record themselves. The practice was subsequently codified in Order 8 rules 1,2, 3,4 and 6 of the Court of Appeal, Rules 2007. Under the new dispensation, which was carried into the Court of Appeal Rules 2011, the Registrar of the court has the initial responsibility to compile and transmit the records to of Appeal within 60 days after the filling of the notice of appeal.
Where he fails or neglects to do so within the specified time, it becomes mandatory for the appellant to compile and transmit the record himself and at his own expense. He has 30 days from the date of the Registrar’s default. There is no duty on the respondent to compile an additional record. He may do so where a document, proceeding or exhibit that is crucial to the just determination of the appeal has been inadvertently omitted from the compilation. He has 15 days from the service on him of the record of appeal within which to file an additional record. From the above provisions, it is quite evident that the court sought to eliminate the unconscionable delay in the compilation and transmission of the record of appeal from the trial court by placing additional responsibility on the appellant, and, where applicable, the respondent.
For the first time, the Rules also stipulate the time within which the exercise is to be carried out. It was not in dispute that there was a delay in the compilation and transmission of the record of appeal from the trial court to the Court of Appeal in the instant case. It was subsequently regularized upon the appellant’s application. It was also not in dispute that the exhibits tendered at the trial court were not transmitted to the Court of Appeal and that the omission was not discovered until the appeal had been argued and their Lordships were deliberating on their judgment. The steps taken by the court to ensure the transmission of the documents was alluded to in the judgment, which were said to have yielded no fruit.
On duty on appellant to ensure record of appeal is complete-
In light of the Court of Appeal Rules 2007, which makes it mandatory for the appellant to compile and transmit the records upon the Registrar’s default, the burden shifted to the appellant to ensure that a complete record was transmitted.
In the instant case, the Court of Appeal could not be blamed for the steps it took in requesting for the exhibits in order to ensure substantial justice in the determination of the appeal. It was also not mandatory for the respondent to compile an additional record. He only needed to do so where the omitted records, processes or exhibits would have had an adverse effect on his ability to defend the judgment appealed against.
On rules governing compilation and transmission of records of appeal to the Court of Appeal-
By Order 8 rules 1, 2, 3, 4, 5 and 6 of the Court of Appeal Rules, 2011, the Registrar of the trial court is mandated to compile and transmit the record of appeal within 60 days. By Order 8 rules 1-3, another window is given to the appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect. Again, another chance is given to the respondent who is at liberty within 15 days to compile and transmit to the court such records to be known as the additional records of appeal.
On Option available to appellate court where record of appeal is incomplete-
Where record of appeal is incomplete, an appellate court should not hear the appeal until same is compiled and transmitted. It should strike out the matter to give the parties another chance to correct the error. In the instant case, the Court of Appeal made an order of dismissal of the appellant’s appeal for the non-production of exhibit Pl before it to decide the case of the parties before it on the merit. The Court of Appeal ought to have struck out the appeal instead.
On duty of court not to speculate on matters not before it-
A court is not entitled to speculate on matters not before it. On no account must a court deliberate on an incomplete record. In the instant case, without seeing the material that was before the trial court, the Court of Appeal would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice.
On Effect of order of dismissal-
An order of dismissal signifies that the court had entertained the matter on the merits. It operates as an estoppel per rem judicata and ipso facto bars the losing party for all times re-litigating the same subject matter. In the instant case, the Court of Appeal made an order of dismissal of the appellant’s appeal for the non-production of exhibit PI before it to decide the case of the parties before it on the merit. The Court of Appeal gave its reason why it could not use the complete record of appeal because of the failure to compile and transmit same by the Registrar of the trial court and the appellant himself. It was improper for it to order dismissal of an appeal that it did not hear on the merit. The option open to the Court of Appeal was to strike out the appeal.
Per ABBA AJI, J.S.C.:
The lower court gave its reason why it could not use the complete record of appeal because of the failure to compile and transmit same by the Registrar of the trial court and the appellant himself. Thus, it was improper for it to order dismissal of an appeal that it did not hear on the merit.
Except there is collusion and connivance by both the trial court and the appellant to compile and transmit the record, the appellant cannot be made to suffer the consequence of the lack of exhibit Pl that would have helped its case one way or the other. To suffer the order of dismissal by the appellant is to shut it out forever for a default it did not deliberately commit. This is injustice.
Since it was found out by the lower court that the record of appeal was incomplete, the lower court ought not to have heard the appeal until same is compiled and transmitted or strike out the matter to give the parties another bite at the cherry.
NOTABLE PRONOUNCEMENT:
On Attitude of court to counsel adopting mechanical or robotic approach to citation of cases-
Per NWEZE, J.S.C.:
My lords, permit me to make one observation before signing off this judgment. Learned counsel for the appellant, like most counsel appearing before us, has the tendency of adopting a mechanical, robotic approach to the citation of cases. In the instant appeal, although the 2007 Court of Appeal Rules make it mandatory for the appellant to compile and transmit the record of appeal, where the Registrar defaults, thus shifting the burden to the appellant of ensuring that a complete record is transmitted, he fell back on decisions that pre-date the innovations which the Court of Appeal Rules, 2007 Rules introduced. To say the least, this style of advocacy stultifies the evolution of speedy trends in justice delivery.
I shall say no more.”
Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
