LEGAL NUGGETS (25):RECORD OF APPEAL.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.


ISSUE: RECORD OF APPEAL-Whether the law allows parties the right to file additional/supplementary record of appeal

"The respondent's application was for:
(i) Leave for the appellant to compile and file supplementary record to this appeal consisting of the original notice and grounds of appeal which was omitted from the records of the lower Court transmitted to this Honourable Court.
(ii) Deeming as duly filed and served the supplementary record of appeal exhibited herewith and marked Exhibit A.
Leave means permission. When a process has been filed and served on the adverse party, and the need arises thereafter to file an additional process to the already existing process, for the purposes of sanity and orderliness leave would be necessary otherwise the Court may be submerged in an avalanche of processes.

The application was brought under Order 7 Rule 1 and Order 6 Rule 4 of the Court of Appeal Rules. Order 6 Rule 4 provides for grounds outside Notice while Order 7 Rule 1 states that:
"Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought."
It is clear from the above that the application was brought under the wrong provisions of the Court of Appeal Rules. Would that be fatal to the application? I do not think so.

In AYA & Sons Ltd. v. FHA Homes Ltd. (2006) 2 NWLR (Pt.963) P. 139. A Court of Appeal decision, I said that: "There is no hard and fast rule that the order and rule must be stated on the motion paper, although it is desirable that they be so stated. The Provisions of Order 3 Rule 3(i) of the Court of Appeal Rules (i.e. the Old Rules) are of mere desirability and not essentiality. That is to say, it should be regarded as a Procedure to be taken but failure to take it does not and ought not to render such non-compliance fatal. See Hall v. C in Re Barker Estate (1879) 10 Ch.D P. 165- This reasoning is Premised on the fact that Courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in so doing, rules of Court must at all times be interpreted by the Judge to prevent undue adherence to technicalities."

The Court of Appeal was right when it said that:
" ... The Rules of Court may not have provisions requiring the applicant to apply and obtain leave of Court to compile and file supplementary record of appeal or deeming as duly filed..."
So what did the Court of Appeal do? Did it surrender and say since there is no provision in the Rules the application cannot be granted.

The Court examined the clear facts of the case, then said: "It is clear from the counter affidavit as well as the address of the learned senior counsel for the respondent that he does not object to the filing of the Notice of Appeal as supplementary record of appeal since he did not controvert the facts deposed to in paragraph 5(i)-(v)) of the affidavit in support of the application which are to the effect that the said Notice of appeal was omitted from the record of appeal compiled and transmitted by the High Court to this Court. The omission of the Notice of appeal from the record of appeal is so fundamental to the appeal
because it use the initiating process by which the jurisdiction of this Court was properly invoked over the appeal. That is why it was specifically mentioned in Order 8 Rule 7(d) of the Court of Appeal Rules, 2007 as one of the relevant documents which every record of appeal shall contain ..."

The above shows that the Court of Appeal was satisfied that the record of appeal was incomplete since the notice of appeal was omitted from it. Having found the above to be the correct position the Court of Appeal then proceeded to say that:

"Once it is clear that the record of appeal is incomplete then it becomes absolutely necessary for the omitted relevant parts of the record to be compiled and transmitted to the Court before the appeal can be heard by the Court... Even where an appellant did not compile and transmit the initial record of appeal as in the present situation, no Rule of the Court stops or prevents him from transmitting the omitted part/s to this Court by way of an application such as the present one..."

Acting on the above reasoning and the provision of Sections 15 and 26(a) of the Court of Appeal Act the Court of Appeal found that prayers 1 and 2 in the motion paper were very much in order and proceeded to grant the respondent leave to compile and file supplementary record, and deeming as duly filed and served the supplementary record of appeal. The learned Justices of the Court of Appeal exercised their discretion to grant the prayers. The position of the law is that an appellate Court would not interfere with the way a Judge exercises his discretion unless:
(a) The discretion was wrongly exercised.
(b) The exercise of discretion was tainted with some illegality or substantial irregularity. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) P.143; Anyah v. ANN Ltd. (1992) 6 NWLR (Pt. 247) P.319; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) P.124.

Furthermore an appellate Court would only interfere with the exercise of discretion by a Judge if it is in the interest of justice to do so. The discretion was properly exercised. Before I bring the curtains down on issue 1, I must observe that inherent powers are powers that allows Courts to deal with diverse matters over which they have authority.

Where the requirement for leave to file supplementary Record of appeal is not provided by the Court of Appeal Rules or some other Rule of practice the Court has an inherent jurisdiction to grant leave in deserving cases bearing in mind that the Judge is not a robot who refrains doing justice because there is no provision in Rules for the application before him or who rigidly follows arid legalism or technicalities to such a point that justice is not done to the parties. He is to do substantial justice between the parties and in doing so rules of Court must always be interpreted in such a way as to avoid unnecessary adherence to technicalities. Once a Court rigidly follows the Rules justice may never be done to the parties. When Rules of Court are silent, a Judge is not expected to say to himself, this cannot be done, since the Rules do not provide for it. If that were the case we will not get anywhere, and that would be bad and unfortunate for the Rule of Law.

Judges must at all times be prepared as Jurists to dig into their deep knowledge of the law and come up with solutions to legal issues provided they never go against the clear intentions of the legislature. By granting this application which this Court affirms it is impossible to say that the Court of Appeal had acted upon any wrong principle, since it acted in the interest of justice.

A deeming order regularizes a process. The Court of Appeal was right to grant leave to the respondent to file supplementary record and to deem the supplementary record as duly filed and served.
Order 8 Rule 9 of the Court of Appeal Rules provide for certification of records. It states that:

"Every record or additional record of appeal compiled be a party to an appeal must be certified by the registrar of the lower Court.

Provided that is shall not be necessary for copies of individual documents to he separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules."

On whether the Notice of appeal attached to the supporting affidavit of the application was certified, the Court of Appeal said:

"I have perused the Notice of Appeal in question and while agreeing with the learned senior counsel that it does not contain the certification required ... I would point out that he did not challenge the fact that original of the said Notice of Appeal containing all and every information as in the copy attached to the application was indeed fact and law, duly and properly filed by the applicant in the High Court as averred in paragraph 6 of the supporting affidavit. Since the contents and filing of the original Notice of Appeal from which the copy attached to the application was made are not disputed.

The Court of Appeal concluded that the Notice of Appeal was in order despite non-certification. Learned counsel for the appellant observed that the Notice of Appeal is an uncertified Photocopy of a Public document, contending that since it was not certified, it was wrong for the Court of Appeal to grant the applicant's prayer for an order deeming the uncertified photocopy of the notice appeal as duly filed and served.

Reference was made to Order 8 Rule 9 of the Court of Appeal Rules. Sections 97(1)(e), 97(2)(c) and 112 of the Evidence Act. Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) P.799 Aina v. Jinadu (1992) 4 NWLR (Pt.233) P.91; IMB v. Dabiri (1998) 1 NWLR (Pt.533) 284.

Concluding, he submitted that only certified true copies of public documents are admissible. He urged the Court to resolve this issue in the negative. Learned counsel for the respondent observed that the Notice of appeal was in fact certified. Reference was made to page 10 of Exhibit A. He submitted that Exhibit A, having been fully certified complied with Section 97 and 112 of the Evidence Act and requires no further certification. Reliance was placed on Iheonu v. Obiukwu (1994) 1 NWLR (Pt.332) P.594; Daily Times v. F. R. A. Williams (1986) 4 NWLR (Pt.36) P.526.

He urged the Court to resolve the issue in favour of the respondent and dismiss the appeal.

It is not in dispute that a Notice of appeal is a public document. See Sections 97 and 112 of the Evidence Act. The Evidence Act and the Court of Appeal Rules are clear that before a public document can he of any use in Court, it must be certified. That is to say, a public document must be certified. If it is not certified no probative value will be attached to it. So a public document must be certified. A certified copy is a copy of a document certified as true by the officer who has the custody of the original. Certified copies are deemed to be originals. A certified document is thus as authentic as the original and is admissible in evidence in place of the original. See Ndayako v. Mohammed (2006) 17 NWLR (Pt.1009) P.655; Orlu v. Gogo-Abite (2010) 8 NWLR (Pt.1196) P.307; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) P.373; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) P.799.

The supplementary Record of Appeal contains the Notice of Appeal which is on pages 8, 9 and 10. It must be examined to see if being a public document it was certified.

A public document is properly certified only after it is dated, subscribed by the public officer who has the custody of the document. In subscribing it, the public Officer must state his name, or and sign. His official title and stamp on the document must be visible for all to see. Page 10 of the Record of Appeal is the last page of the Notice of appeal. It is dated 18 December, 2001, subscribed by the Assistant Chief Registrar and signed by him. The stamp of the judiciary is affixed thereon. Exhibit A (the Notice of Appeal) is a certified photocopy of the Notice of appeal filed in this appeal. Endorsements on Exhibit A show that fees were duly paid. Certification was done by the Assistant Chief Registrar of the trial Court. The Court of Appeal is correct." Per RHODES-VIVOUR, JSC.(Pp.8-18,Paras.E-C).

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