It is the law that, appeals are heard and determined on the record of appeal which has been settled by the parties. However, the Court of Appeal Per OMOLEYE, J.C.A. while delivering the lead Ruling in ATOSHI & ORS v. AGBU & ORS (2018) LPELR-44477(CA) held that ‘…depending on the circumstances of each matter, where in an appeal there is incomplete record or part of the record is missing, the appellate Court has any of the following three options to take viz: a) The Court can hear the appeal on such incomplete records or documents presented before it, provided the parties give their express consent, which consent must be clearly recorded by the Court and this will constitute a successful defence of waiver against a future resiliation by any of the consenting parties. (b) The Court can hear the appeal on such incomplete records where the missing part of the record is, in its view, not material. (c) In the alternative, the Court can refuse to hear the appeal and take the last resort and order the remittance of the case to the lower Court to hear it “de novo”.
The Appellants/Applicants filed their notice of appeal against the judgment of the trial Court in Suit No. TRSW/09/2009 instituted against them by the Respondents. Upon the compilation and transmission of the record of appeal by the Registrar of the trial Court, it was discovered by the Appellants/Applicants that certain material portions of the record of proceedings of the trial Court and some documents tendered in evidence as exhibits were missing. The Appellants/Applicants took steps by writing to the Registrar of the trial Court to forthwith transmit, as additional record, to the Court of Appeal the missing portions of the record of proceedings of the trial Court. The reply of the Registrar was that the said missing portions were lost in the process of the trial Court’s movement from Wukari Judicial Division to Jalingo Judicial Division as a result of the then religious crisis in the former. The Appellants/Applicants also filed a motion seeking the order of the Court to mandate the Registrar of the trial Court to compile and transmit the missing record which was granted. The inability of the Registrar to transmit the missing record led to the filing of the present application.
The Court held that it was inappropriate for it to hear the appeal of the Appellants/Applicants on the incomplete record of appeal presented before it. That the application was imbued with merit and was granted as prayed. The Suit No. TRSW/9/2009 was remitted to the Chief Judge of the trial Court for assignment to another Judge of that Court, other than Hon. Justice Isa M. Sambo, for the expeditious hearing of it, “de novo”.
APPEAL – RECORD OF APPEAL: Whether an appellate Court can act on an incomplete record
Ordinarily, the Courts will not be well-disposed to making an order of retrial as it can amount to giving the parties an opportunity, of a second bite at the cherry, especially the party who lost at the lower Court, to repair the case formerly presented by them. …an appellate Court can only assume jurisdiction over an appeal on a complete record of appeal, for where any portion of the proceedings of the Court below is missing, an appellate Court will be incapacitated to adjudicate on the appeal on the merit and fairly. However, depending on the circumstances of each matter, where in an appeal there is incomplete record or part of the record is missing, the appellate Court has any of the following three options to take viz:
(a) The Court can hear the appeal on such incomplete records or documents presented before it, provided the parties give their express consent, which consent must be clearly recorded by the Court and this will constitute a successful defence of waiver against a future resilation by any of the consenting parties.
(b) The Court can hear the appeal on such incomplete records where the missing part of the record is, in its view, not material.
(c) In the alternative, the Court can refuse to hear the appeal and take the last resort and order the remittance of the case to the lower Court to hear it “de novo”.
In the case of: Okochi v. Animkwoi (2003) LPELR – 2455 (SC), the legal sage, Tobi, JSC (of blessed memory) most pointedly had the following to say on this subject:
As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent, which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record. Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial in the matter if the missing portion of the record is material to the appeal. This must be a decision of last resort which must be taken after all efforts at locating the missing portion of the record fails.
Although the decision to order a retrial will protract the litigation, an appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete record. See also the cases of: (1) Engineering Enterprise Contractor Co. of Nig. v. AG, Kaduna State (1987) 1 NSCC p.601; (2) System Metal Industries Ltd v. Ehizo (2003) 7 NWLR (Pt.820) p.460 and (3) Edjekpo v. Osia (2007) 3 SC (Pt.1) p.1. Per OMOLEYE, J.C.A. (Pp. 28-36, Paras. D-C).
APPEAL – RECORD OF APPEAL: Principle of law on compilation and transmission of record of appeal
“The right of appeal, either as of right or with leave, of a litigant who is displeased with the outcome of his case or the case against him is bequeathed by the grund norm, the Constitution and therefore inalienable. Appeals from the decisions of the Federal High Court, National Industrial Court, F.C.T. High Court, States High Courts (like the trial Court herein), Sharia Court of Appeal of the F.C.T, Sharia Court of Appeal of a State, Customary Court of Appeal of the F.C.T., Customary Court of Appeal of a State and from the decisions of a Court Martial or other Tribunals as may be prescribed by an Act of the National Assembly, shall lie to this Court to the exclusion of any other Court of law in Nigeria – See Section 240 of the Constitution of the Federal Republic of Nigeria, 1999. In order to properly mete out justice to litigants in the appeals brought before this Court especially in line with the right to fair hearing under the fundamental human rights provisions also of the 1999 Constitution in its Chapter IV, Section 36, there is the requirement for the compilation and transmission of the Record of Appeal under the Court of Appeal Rules, 2016. The Registrar of a lower Court on receipt of a notice of appeal and indeed the litigants themselves are empowered and have the duty to compile and transmit the record of appeal from the lower Court to this Court. The time for compilation, transmission and contents of the record of appeal are as specified in Part 2, Order 8 of the said Rules of this Court. The record of appeal is simply, a reproduction of all the proceedings of the Court(s) from which the case has passed through. A record of appeal is therefore very important and indeed an indispensable bundle of documents that an appellate Court relies on and is bound by in hearing an appeal.
Indeed, the law is now rock solid that, the completeness of the record of appeal of a lower Court is one of the conditions precedent to the exercise of the jurisdiction of an appellate Court over an appeal. Put in other words, the record of appeal after transmission to the Registry of the Appellate Court, is in law binding on both the litigants and the appellate Court and perforce must be complete, lest the appellate Court is robbed of the requisite jurisdictional competence to adjudicate upon the appeal. See the cases of: (1) Ojeme v. Momodu II (1995) 6 NWLR (Pt.403) p.583; (2) Dobalus v. Mene (2009) 17 NWLR (Pt.1169) p.74 and (3) C.O.P. v. Okoye (2014) 4 NWLR (Pt.1320) p.390. An appellant is therefore particularly entitled to a complete record of appeal in order for him to properly exercise his unbridled constitutional right of appeal. Hence, the other party, indeed the Court cannot stand in the way of an appellant in obtaining a complete record of appeal, for to do this will be tantamount to an infringement of the constitutionally guaranteed right of appeal of an appellant, in contravention of the express provision of the grundnorm.” Per OMOLEYE, J.C.A. (Pp. 25-28, Paras. E-D)
APPEAL – RECORD OF APPEAL: Whether an appellate Court can act on an incomplete record
” The record of appeal transmitted to this Court, being a pack of incomplete document(s), the right of parties thereto cannot be addressed and decided based on such document(s). This Court lacks the jurisdiction to do so. See: Mutual Life & General Insurance v. Kodi Iheme (2010) LPELR – 4568 (CA); Ekpemupolo & Ors v. Edremoda (2009) 8 NWLR (Pt. 1142) 166 SC. The proper order in the circumstance (as in this case on appeal) where all efforts have been made to trace the missing aspects of the record of appeal but which cannot be found or traced, is to order for a new trial or retrial in the interest of justice, especially where the loss or misplacement of aspects of the record was not due to the fault of either party to the suit, a retrial should be ordered as if no trial whatever had been had in the first place. Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672.” Per HUSSAINI, J.C.A. (Pp. 36-37, Paras. F-F).
EVIDENCE – UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence
“The law is trite that, cogent facts in an affidavit which are not challenged and controverted are deemed admitted and sufficient proof of the case of the applicant. In other words, the cogent and strong evidence contained in an unchallenged affidavit must be accepted as true and correct and acted upon by the Court to sustain the case of an applicant. See the cases of: (1) Ogoejeofo v. Ogoejeofo (2006) 1 SC (Pt.1) p.157; (2) AG, Plateau State v. Nasarawa State (2005) 4 SC p.55; (3) Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) p.773 at p.777 and (4) Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) p.417.” Per OMOLEYE, J.C.A. (P. 23, Paras. C-F).
EVIDENCE – AFFIDAVIT EVIDENCE: Effect of a self contradictory affidavit
“It is also the law that an affidavit is self-contradictory if an information contained in it states inconsistent facts thereon. Hence, once an affidavit is self-contradictory, it needs not be challenged by the other party, as whatever facts the affidavit intends to establish would have been destroyed by the contradictions. See the cases of: (1) Ejefor v. Okeke (2000) 7 NWLR (Pt.665) p.363; (2) Ekekeugbo v. Fibere Sima (1994) 3 NWLR (Pt.335) p.707 and (3) Balogun v. Shonibare (1997) 3 NWLR (Pt.493) p.317.” Per OMOLEYE, J.C.A. (P. 24, Paras. B-E).
ATOSHI & ORS v. AGBU & ORS (2018) LPELR-44477(CA)