Incomplete Record of Appeal – Effect on the Jurisdiction of an Appellate Court
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 15th Day of January, 2021
Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun
Chima Centus Nweze
Amina Adamu Augie
Uwani Musa Abba Aji
Justices, Supreme Court
Access Bank Plc Appellant
- A.N.C. ONWULIRI Respondent
(Lead judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)
“THE COMPILATION AND TRANSMISSION OF A COMPLETE RECORD OF APPEAL IS A CONDITION PRECEDENT TO THE ASSUMPTION OF JURISDICTION BY THE APPELLATE COURT.”
The Respondent instituted an action against the Appellant seeking inter alia, a declaration that his purported dismissal from the Appellant’s employment is null, void and of no effect. At the conclusion of trial, the trial court delivered judgement in favour of the Respondent. Dissatisfied with the judgement of the trial court, the Appellant appealed to the Court of Appeal. However, in transmitting the Record of Appeal, certain exhibits tendered at the trial court and which the trial court heavily relied on in reaching its decision were not transmitted along with the record of appeal.
The registrar of the Court of Appeal was directed to contact the trial court as well as the counsel for the parties to intimate them of the situation and for appropriate action to be taken. The Deputy Chief Registrar of the Court of Appeal wrote a letter to the Chief Registrar of the trial court requesting for the transmission of the exhibits. Also, a staff of the Litigation Department of the Court of Appeal allegedly contacted the parties to no avail. The said staff deposed to an affidavit stating the steps taken to contact the parties and the trial court. The affidavit was filed on 1st July, 2013 and upon service of same, the Appellant took steps to retrieve the exhibits which were transmitted by the trial court to the registry of the Court of Appeal by a letter dated 2nd July, 2013. The Court of Appeal however, declined to accept the exhibits, and this made the Appellant to file a counter-affidavit to the affidavit of the staff in the Litigation Department of the Court of Appeal.
Notwithstanding the above, on 4th July 2013, the Court of Appeal delivered judgement in the matter, dismissing the appeal for non-production of exhibits material to the appeal. Dissatisfied with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court.
Issue for Determination
The following sole issue was determined by the apex court –
Whether the Court of Appeal was right by dismissing Appeal No. CA/PH/433/2008: Access Bank Plc v Mr. A.N.C Onwuliri for failure on the part of the Trial Court Registry to transmit along with the record of appeal, all the exhibits tendered at the High Court.
Counsel for the Appellant submitted that the responsibility for compilation and transmission of the record of appeal is tripartite as same rests on the court as well as the Appellant and the Respondent. He referred to Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules, 2007 which is similar to Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules, 2011. Counsel argued that the primary duty of compilation and transmission of record is on the court whose decision is appealed against. He stated that before the 2007 Rules came into existence, it was the sole responsibility of the registrar of the lower court. He referred to Order 3, Rules 13 and 21 (5) of the Court of Appeal Rules, 2002 and the case of NWANA v F.C.D.A. (2007) 11 NWLR (Pt. 1044) 59 at 79-80 H-D, 80 F-G. However, by Order 8, Rule 1 of the 2007 Rules, the Registry of the lower court has 60 days to compile and transmit the record while the Appellant had to wait for the 60 days given to the Registry to elapse before taking any further step.
Further, counsel contended on behalf of the Appellant that an appellate court hearing an appeal has a duty to ensure that the records settled by the parties are completely transmitted and in the event of any omission, the appellate court ought to make diligent efforts to procure same before determining the appeal. He relied on OKOCHI v ANIMKWOI (2003) 18 NWLR (Pt. 851) at 23 D-E. He argued that the Court of Appeal did not make appropriate recourse to the Appellant or the trial court and from its counter-affidavit, it is clear that the Appellant was not contacted. He stated that immediately the Appellant was served with the affidavit filed by the staff of the Litigation Department of the Court of Appeal, steps were taken to retrieve the exhibits from the trial court, but the Court of Appeal refused to accept the exhibits. Counsel also contended that the Court of Appeal was wrong to have dismissed the appeal. He submitted that the courts have consistently held that the proper order to make where the record is incomplete is to remit the case to the trial court for retrial. He referred to the case of ENGINEERING ENTERPRISE OF NIGER CONTRACTOR CO. OF NIGRERIA v A-G KADUNA STATE (1987) 2 NWLR (Pt. 57) 381, amongst other cases.
In response, counsel for the Respondent contented that the cases of NWANA v FCDA (SUPRA) and OKOCHI v ANIMKWOI (SUPRA) cited by the Appellant were decided under the 1981 and 2002 Court of Appeal Rules in which it was the sole responsibility of the registrar to compile and transmit records, and there was no prescribed time limit. He submitted that it was for this reason that the court held in those cases that the failure of an officer of the court to discharge his responsibility would not be allowed to defeat the constitutional right of a litigant. Counsel posited that under Order 8, Rule 4 of the Court of Appeal Rules 2007, upon default by the registrar to compile and transmit the record within 60 days, it becomes mandatory for the Appellant to do so. He argued that after the registrar defaults, the Registrar becomes the Appellant’s agent and the responsibility for any act or omission falls back on the principal.
Counsel submitted further that the Appellant failed to comply with the condition precedent to the presentation and prosecution of a valid appeal; and consequently, the lower court lacked jurisdiction to hear an appeal on an incomplete record. He cited MUTUAL LIFE AND GENERAL INSURANCE v KODI IHEME (2012) ALL FWLR (Pt.610) 1401 at 1409 G-H. He stated that the Court of Appeal was right to have dismissed the appeal and that the Appellant’s plea that the matter be remitted to the trial court for retrial is a ruse to continue to deny the Respondent the fruit of his judgement.
Court’s Judgement and Rationale
Deciding the sole issue, the Supreme Court held that an appeal is in the nature of a rehearing in respect of all the issues raised in a case and the importance of transmission of a complete record to the appellate court cannot be over-emphasised. 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 rules governing the compilation and transmission of records has evolved over the years. Before the Court of Appeal Rules, 2007, the registrar of the court from which the appeal arose had sole responsibility of compiling and transmitting the record. However, Order 8, Rules 1,2,3,4 and 6 of the Court of Appeal Rules, 2007 placed additional responsibility on the Appellant, and where applicable, the Respondent. The registrar of the court has the initial responsibility to compile and transmit the records to the Court of Appeal within 60 days after the filing of the Notice of Appeal. Where he fails to do so within the specified time, it becomes mandatory for the Appellant to compile and transmit the record.
The apex court held that the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by the appellate court. However, where the court is bereft of jurisdiction, the proper order to make is an order of striking out, not dismissal since the appeal has not been heard on the merit. Their Lordships held further held that 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 this case, the exhibits were eventually transmitted to the Court of Appeal. The Supreme Court, consequently, directed the appeal to be remitted to the Court of Appeal for re-hearing before another panel of the court.
T.J. Krukrubo with D.D. Killi and S.M. Tsado for the Appellant.
Benjamin Obiora for the Respondent.
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Publishers of the Nigerian Monthly Law Reports (NMLR)
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