SUPREME COURT UNCOVERS COUNSEL WHO GOT SNEAKY WITH THE RECORD OF APPEAL

When a court (trial court or lower Court) concludes the trial of a case and delivers its judgment, the party aggrieved with the judgment usually reserves the right to appeal to a higher court (appellate court) for review. The appeal procedure begins with the filing of a Notice of Appeal (or in appropriate cases, an application seeking the leave of court to appeal would precede the Notice of Appeal).

Subsequent to the filing of a Notice of Appeal, the appeal section of the lower court would invite parties or their respective counsel (legal representative) for what is known as settlement of record. This record refers to a record of all that transpired at the lower court. It includes all the court processes (court papers) filed by the parties, exhibits admitted by the court and record of proceedings that will enable the appellate court review the judgment of the lower court. The purpose of the meeting for the settlement of record is to enable parties (through their counsel) to identify and determine the particular court processes that should be compiled into what is known as Record of Appeal.

The compilation involves making photocopies of the relevant court processes and bound in a booklet. Thereafter, the compiled Record of Appeal would be sent to the registry of the appellate court (transmission). Once the Record of Appeal is transmitted, it is said that the appeal has been entered. From the date of the transmission, only the appellate court has the powers to hear and determine any subsequent applications (motions), deal with any other post-judgment proceedings and ultimately, the appeal itself.

It is unusual for any party or counsel to tamper with the Record of Appeal in any way. However, in the recent case of Gaba v. Tsoida [2020] 5 NWLR (Pt. 1716) 1 counsel got sneaky but the Supreme Court would have none of that. Kekere-Ekun, JSC observed:

Before I conclude, I must observe that the Record of Appeal was very untidy and difficult to work with. Almost every page is mutilated with markings, underlining, the circling of numerous words and phrases as well as personal notes made in the margins by counsel. The compiled record is meant to be a help and not a hindrance to the court. An appellate court should be afforded the opportunity to have a completely unbiased appraisal of the relevant proceedings and processes of the lower court. It seems to me a surreptitious way of trying to sway the court to the personal opinion of counsel who prepared the record or who made the processes available for compilation. When the record is being settled, efforts should be made to ensure that the record compiled and transmitted to the court is clean and devoid of any marks, interlineations, etc.

From the above, the Supreme Court expressed the difficulty it experienced working with the Record of Appeal in that case. However, this did not stop the Court from considering the appeal on the merit, and finding that the appeal lacked merit. (The appeal was against the Judgment of the Court of Appeal affirming the decision in favour of the Respondent regarding ownership of a parcel of land).

Thus, what the Supreme Court did in the instant case was to ignore the mutilation of the Record of Appeal which manifested in the form of “markings, underlining, the circling of numerous words and phrases as well as personal notes made in the margins…” The markings, circling of words and phrases and addition of personal marginal notes appear to be the worst of them all. Lawyers are familiar with underlining words (especially quoted words) for emphasis when drafting their written addresses or brief of arguments. However, this underlining is only permitted to be done electronically before printing in hardcopy and filing. No one is permitted to tamper with the court processes once filed and forming part of the Court’s record.

We must note that when the Supreme Court made the point against swaying the mind of the court, emphasis must be on attempt to do so surreptitiously and by acts such as mutilating the Record. This is because, ordinarily, attempting to sway the mind of the court is the hallmark of advocacy. By this, counsel canvasses legal arguments in persuading the court to accept the reasoning advanced in favour of a particular party. This is acceptable.

Counsel must be careful in ensuring that the record is not tampered with at any time. This is because it has been held that “If shown that the Record of Appeal is indeed incomplete, distorted or mutilated, the appellate court cannot entertain the appeal.” See Odu v. Jarigbe [2017] 4 NWLR (Pt. 1556) 445 at 462. This case of Odu v. Jarigbe is also an authority for the position that the authenticity of the record of appeal can be challenged.

Perhaps, it is worthy of mention that the Supreme Court was not specific in demonstrating which of the counsel in the case was responsible for the mutilation of the Record. The apex Court made reference to “Counsel who prepared the record or who made the processes available for compilation.” Usually, this information would be contained on the face of the record. But on a safe guess, this might appear to be the Appellant’s Counsel. This is because in practice, a respondent’s counsel (being the successful party at the lower court) usually does not participate in the settlement of record. Aside avoiding the attendant cost of compilation (and the extortion that goes with it), (s)he would leave the appellant to go through the rigours of compiling and transmitting the record alone. Upon being served with a bundle of the record, the respondent’s counsel will study it to determine if there is need to compile and transmit additional record. If that is the case, (s)he will proceed accordingly to process the additional record.

In conclusion, the Supreme Court has given a clear directive that “When the record is being settled, efforts should be made to ensure that the record compiled and transmitted to the court is clean and devoid of any marks, interlineations, etc.” Counsel must endeavour to comply.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

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