Funmi Bodunde & Ors v. Mrs. Folake Fayomi & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, JCA (Delivering the leading ruling)

This appeal was lodged against the judgment of the High Court of Kaduna State Coram M.L. Bello, J, delivered on 22/11/2019.

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.

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) 28 WRN 85; (2011) LPELR-1309(SC). See also the provisions of order 8 of the Court of Appeal Rules, 2021.

In Olorunyolemi & Anor v. Akhagbe (2010) 15 WRN 23; (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.

Therefore, having regard to the established admonition that prevents the court from speculating on the contents of an unclear document, as photocopied in the transmitted record, as well as the further caution against hearing an appeal on an incomplete record, we find that the determination of this appeal cannot be embarked upon.