Legalpedia Citation: (2024-03) Legalpedia 59710 (CA)

In the Court of Appeal

Holden At KADUNA

Thu Mar 21, 2024

Suit Number: CA/K/72/2020(R)

CORAM

Onyekachi Aja Otisi Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

PARTIES

1. FUNMI BODUNDE
2. TUNJI ADENIYI (Trading Under The Name And Style Tunji Adeniyi & Co)
3. KILAWA INVESTMENTS & PROPERTY LIMITED
4. BIOLA OYEBANJI ESQ
5. PASTOR ADEBAYO BODUNDE

APPELLANTS

1. MRS. FOLAKE FAYOMI
2. MR. ARIYO BODUNDE
3. ADIMULA BODUNDE
4. MR. BABATUNDE BODUNDE
5. MRS. MOJISHOLA BODUNDE

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The parties filed Briefs of Argument. The Appellants’ Brief was filed on 10/9/2021 but deemed properly filed and served on 12/10/2021. The 1st – 5th Respondents’ Brief was filed on 21/1/2022 but deemed properly filed and served on 1/2/2022. A Reply Brief was filed by the Appellants on 11/10/2022 but deemed properly filed and served on 24/1/2024. At the hearing of the appeal on 24/1/2024, the Briefs were adopted by Usman Abdullahi, Esq., for the Appellants, and by Elizabeth G. Yayok, Esq., for the Respondents. The Court then reserved judgment.

In the course of writing the judgment, this Court found that the exhibits tendered at the lower Court were not transmitted together with the Record of Appeal, which had been transmitted on 10/2/2020. The exhibits, which both parties have referred to, were not all transcribed in the Record of Appeal, and some of the exhibits photocopied in the transmitted Record of Appeal were not clear enough to demonstrate the complaints thereon. The difficulty posed by this anomaly is twofold.

First, the Court cannot speculate on the precise contents of an unclear document photocopied in the transmitted Record. Secondly, the failure to transmit the exhibits tendered in the lower Court means that the record of appeal was incomplete.

HELD

Appeal fixed for rehearing

ISSUES

Nil

RATIONES DECIDENDI

RECORD OF APPEAL – WHERE EXHIBITS REFERRED TO ARE NOT TRANSCRIBED IN THE RECORDS OF APPEAL/NOT CLEAR

The exhibits, which both parties have referred to, were not all transcribed in the Record of Appeal, and some of the exhibits photocopied in the transmitted Record of Appeal were not clear enough to demonstrate the complaints thereon. The difficulty posed by this anomaly is twofold.

First, the Court cannot speculate on the precise contents of an unclear document photocopied in the transmitted Record. Secondly, the failure to transmit the exhibits tendered in the lower Court means that the record of appeal was incomplete.

RECORD OF APPEAL – EFFECT OF AN INCOMPLETE RECORD OF APPEAL

It is trite that the Court cannot hear an appeal on an incomplete record. The incompleteness of a Record of Appeal deprives an appellate Court of its means to effectively hear and determine an appeal before it; Ibrahim & Ors v. Akinrinsola (2022) LPELR-59633(SC); Garuba & Ors v. Omokhodion & Ors (2011) LPELR-1309(SC). See also the provisions of Order 8 of the Court of Appeal Rules, 2021.

In Olorunyolemi & Anor v. Akhagbe (2010) LPELR-2597(SC) at pages 15-16, the Supreme Court, per Onnoghen, JSC, explained that:

“It is settled law that every material fact, evidence or document tendered in the proceeding at the High Court and relevant to the determination of the issues in controversy between the parties on appeal, should be transmitted as of necessity, to the appellate Court as there can be no consideration of any appeal by an appellate Court, or an objection thereto unless and until there is before the Court a record of appeal duly prepared and transmitted by the Registrar of the lower Court or by the appellant himself upon the leave of the Court being bought and obtained.

The rationale is that though an appeal is a rehearing of the matter. the rehearing in this case is by considering the case based on the printed record before the appellate Court, which includes the exhibits tendered therein. – Per O. A. Otisi, JCA

RECORD OF APPEAL – WHETHER AN APPEAL CAN BE HEARD IN AN INCOMPLETE RECORD OF APPEAL

I am in agreement that an appeal cannot heard on an incomplete record of appeal.

The Exhibits tendered in the course of the trial form an integral part of the record of appeal and where the record of appeal is transmitted without the Exhibits the record is incomplete. It is trite that an appellate Court would not hear an appeal on an incomplete record. A record of appeal is made up of the proceedings and relevant documents tendered during the proceedings in the matter in question: – See SPDC (Nig.) Ltd & Anor V. Eriata & Anor (2016) LPELR-40821 (CA) Pp. 15-16 Paras F-D – Per J. G. Abundaga, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Rules, 2021
   

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