Odu v. Jarigbe [2017] 4 NWLR (Pt. 1556) 445 at 462, paras. D-F, per Otisi, JCA:

“A record of appeal, whether settled by the parties or by the registrar where they fail to attend to compile the records, is presumed to be correct and is binding on the court and on the parties.  This is however a rebuttable presumption. The appellate court has a duty to ensure the records are complete as settled by the parties. Where a respondent however disputes the genuineness or authenticity of the record of appeal or of portions thereof, he is duty bound to depose to an affidavit to challenge the said record; which will be served on the judge or registrar of the lower court and on the other party. If shown that the record of appeal is indeed incomplete, distorted or mutilated, the appellate court cannot entertain the appeal.”

Notes:

In stating the above position, the learned Justice of the Court of Appeal relied on a number of authorities which include Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251; Orajeka v. Owuamalam (2011) LPELR-4883 (CA). See also Akpan v. FBN Plc (2016) LPELR-41201(CA).

In practice, completeness of a record of appeal does not mean that the entire court processes filed in the suit must be transmitted to the appellate court. Parties are at liberty to leave behind any process that they do not consider necessary for the determination of the appeal. Where necessary however, additional record may be compiled, in good time (as usually specified by the relevant rules), by any party upon being served with the record. (See Order 8 Rule 6 of the Court of Appeal Rules 2016). This is entirely within a party’s discretion, as held by Otisi, JCA. In the instant case, the 1st Respondent challenged the record of appeal by way of preliminary objection arguing that the record was incomplete. The Court of Appeal dismissed the objection on the ground that the 1st Respondent had the liberty to file additional record within 15 days (in accordance with the Court of Appeal Rules) of being served with the record but failed to do so.

It is important that a party disputing the authenticity of the record of appeal should depose to an affidavit because it is a serious allegation. The record of court are quite important and needs to be intact at all times. Unlawfully tampering with court records has great effect on the case before the court. The facts of Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251 are quite interesting. The Appellant filed an action against the Respondent at the Upper Area Court, Ilorin, claiming a parcel of land. The trial court found for him. The Respondent appealed to the High Court on the ground that the decision of the trial court was a nullity having being delivered in chambers. Affidavits and counter-affidavits were filed in this regard. The High Court ruled that there was nothing from the record of proceedings of the trial court showing that the Judgment was delivered in chambers, thereby dismissing the appeal. The Respondent appealed to the Court of Appeal which allowed the Appeal. The Appellant’s appeal to the Supreme Court was dismissed. The apex Court in upholding the decision of the Court of Appeal reasoned that ordinarily, it is not normal for a court to indicate in its record of proceedings whether its proceedings were taken in public or in camera. Therefore, the Court of Appeal was right in not restricting itself to the Judgment of the trial court as done by the High Court. It was also held that the Court of Appeal was right in considering the affidavits filed. (See Edozie, JSC at page 279). Pats-Acholonu, JSC (of blessed memory) went ahead to state the principle thus:

“A party affected by the proceedings of a court who was present in court and was able to observe the nature of the proceedings in the court shall not or ought not be precluded from asserting, by way of affidavit, that what is contained in the record does not exactly represent the true state of affairs of what happened on that date or other dates of the proceedings. The Court of Appeal is bound to look at the depositions to ascertain the veracity or otherwise of the complaint. Where such facts so deposed go to the root of the proceedings and the surrounding circumstances tend to support same as to render it nugatory and void, it is, I believe and I so strongly hold, that it is the duty of the court seised with the proceedings to use the new facts to determine the legality or irregularity complained of.”  See page 271-272, paras. F-B of the report.

In the case of Military Governor of Lagos State v. Adeyiga [2012] 5 NWLR (Pt. 1293) 291, a Judge deposed to an affidavit which he swore to on 4/11/99  (after he had retired on 1/1/94) with respect to the proceedings of a certain date (23/12/93) which the Appellant said never took place because record of it was not found. The Judge stated in his affidavit that the said proceedings indeed took place and that he sat on that date. The Supreme Court believed him after due consideration of the facts deposed to in the affidavit. Peter-Odili, JSC held that “the disappearance from the record of proceedings of the court notes for 23/12/93 was the result of mischief-making or negligence on somebody’s part.” See page 348 of the report.