SKYE BANK PLC v. TUNS INTERNATIONAL HOLDINGS LIMITED & ANOR
(2014)LCN/7115(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
CA/AK/171/2013(R)
RATIO
DUTY OF COURT: WHETHER AN APPELLATE COURT HAS AN INHERENT POWER TO AMEND A RECORD OF PROCEEDING
Now, a record of appeal properly so called is the record of a trial-court proceeding as presented to the appellate court for review. A record of appeal is made up of the proceedings and relevant documents tendered during the proceedings in particular matter.
See. Adesina V Adeniran (2002) 6 NWLR (Pt. 762) 84. Therefore, an appellate court does not have the inherit powers to amend the record of a trial court except of course the powers to correct obvious accidental slips and omissions apparent on the record and also to enable the pleadings conform to the evidence on record.
See. Jessica Trading Co. Ltd V Bendel Ins. Co. Ltd (1993) 1 NWLR (Pt. 271) 538.
Asolo V Asolo (1996) 2 NWLR (Pt. 431) 480.PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
SKYE BANK PLC Appellant(s)
AND
1. TUNS INTERNATIONAL HOLDINGS LIMITED
2. TUNS PROPERTIES LIMITED Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 17/10/2013, the Respondents/Applicants pray this Honourable Court for the followings:
(1) An order permitting the Respondents/applicants to compile Additional Record of appeal for use in this Appeal.
(2) An order deeming Additional Record of Appeal comprising the following:
(a) Page 3 of the Amended Statement of Claim at the court below
(b) Exhibit D2 at the court below, a copy of which was front loaded by the Appellant/Respondent at the court below; as part of the Record of Appeal in this appeal
And such further Order(s) as this Honourable Court may deem fit to make in the circumstances.
The grounds for the said application are as follows:
1. Summon to attend appellate Section of the Registry of the court below to settle Record of Appeal was served on the Respondents/Applicants after settlement of same was concluded by the Registrar in charge, one Mr. J. F. Akinyemi together with the Appellant/Respondent.
2. Page 3 of the Respondents/Applicants Amended Statement of claim containing paragraph 14 – the opening part of paragraph 21 of the Amended Statement of Claim was omitted from the Record of Appeal as compiled and transmitted to this Honourable Court by the Registry of the court below.
3. Exhibit D2 front loaded at the court below by the Appellant/Respondent during trial was omitted from the Supplementary Record of Appeal compiled and transmitted by the court below.
4. An affidavit filed before your lordships with due notice is required to challenge the completeness of the Record of Appeal and Supplementary Record of Appeal.
5. The documents listed under prayer 2 (a) and (b) above are relevant and vital to this appeal.
The applicant’s motion on notice is supported by a 42 paragraph affidavit dated 17/10/2013 sworn to by Olalekan Badmus with Exhibits TUNS 1 – Exhibits Tuns 7 and a written Address in support of the motion on notice.
The Appellant/Respondent filed a counter affidavit of 26 paragraph sworn to by Idowu Owolabi on 28/1/2014 with three (3) Exhibits A, B and C as well as a written Address dated 4/3/2014 in support of the Counter – Affidavit to motion on notice dated 17/10/2013.
The parties to this application adopted their written addresses.
Learned senior counsel for the Respondents/Applicants submitted a sole issue for determination namely:
“Whether upon a consideration of the facts and relevant law, your lordships ought to grant this application”
The counsel for the Appellant/Respondent also submitted a sole issue for determination to wit:
“Whether or not the interest of justice would be served if this application is granted by this Honourable Court in view of the fact that the document sought to be included in the Additional Records of Appeal i.e. page “3” of the Amended Statement of Claim was never part of the processes filed at the lower court by the Respondents/Applicants on 13th November, 2012″
Learned senior counsel for the Applicants submitted in relation to the application that the Record of Appeal as well as the Supplementary Record of Appeal compiled and transmitted to this Honourable Court at the instance of the Appellant/Respondent is neither complete nor properly paginated. He went through the history of the case and the processes filed in the lower court culminating into the order of the court below which permitted the Respondents/Applicants on 13/11/2012 to file amended court processes consisting of the Amended writ of Summons, Amended Statement of Claim, Amended Written Statement on Oath of the Claimant’s Witness, Amended list of Documents to be relied on at the trial by the claimants, and that the documents so listed were also front loaded and served on the Defendant, Respondent to this application.
Learned counsel for the Applicants alleged that the appellate Registry of the court below failed to comply with the Provisions of Order 8 Rules 2(a) and 3 of the Court of Appeal Rules 2011 and failed to serve the Respondents/Applicants herein with summons to attend to settle documents within a reasonable time. That the said summons was neither issued to give reasonable notice nor was it served before the purported Record of Appeal was compiled. The failure of the appellate Registry in these two respects, according to the learned senior counsel deprives the Registrar of the Appellate Registry of the court below the requisite Jurisdiction/competence to compile the purported Record of Appeal as compiled by him. And, that it constitutes breach of a condition precedent to the compilation of Record for the purpose of the appeal in CA/AK/171/13.
Learned senior counsel submitted further that the failure to invite the Respondents/Applicants herein to attend and participate in the setting and determining relevant documents compiled in the Record of Appeal constitute a fundamental breach of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and has occasioned a miscarriage of justice.
Learned senior counsel urged us to note that the Appellate Section of the court below jumped page 3 of the Amended Statement of Claim as filed by the Respondents/Applicants herein to page 4 and doubly numbered the said page 4 on the Record of Appeal as “184” and “16”. That, by so doing the Registry of the court below deprived the Respondents/Applicants herein the right to have page 3 of the Amended Statement of Claim compiled and transmitted to this Honourable Court.
Learned senior counsel referred to paragraphs 11 and 15 of the affidavit in support of this application and submitted that the Registrar of the Appellate Section of the Registry of the court below embarked on this double numbering of the Record of Appeal after being challenged that page 3 of the Amended Statement of Claim was not compiled and transmitted to this Honourable Court.
He submitted that the said page 3 of the Amended Statement of Claim is annexed to this application as Exhibit Tuns 2.
He urged us to note that the said page 3 contains paragraphs 14, 15, 16, 17, 18, 19, 20 and part of paragraph 21 of the said Amended Statement of Claim.
Learned senior counsel submitted and urged us to hold that the fact that the Appellant herein as Defendant generally traversed paragraphs 14, 15, 16, 17 and 18 of the Amended Statement of Claim which is on page 3 in their Amended Statement of Defence lends credence to the fact and supports the assertion that the said page 3 was filed alongside the said Amended Statement of Claim.
Also, that the judgment of the court below, delivered on 11/07/2013, per Honourable Justice A. A. Aderibigbe at pages 329 – 367, recited the particulars of special damages at paragraph 21. He urged us to note that the particulars of special damages are specially pleaded on page 4 of the Amended Statement of Claim, it forms part of paragraph 21 which commenced on page 3 and runs through to page 4.
Learned senior counsel noted that the appellate registry of the court below also failed to compile a letter Exhibit D2 listed as No. 11 on the list of Exhibits and that the said letter is also annexed herein as Exhibit Tuns 3.
Learned senior counsel urged us to hold that the Record of Appeal and Supplementary Record of appeal purportedly transmitted to this Honourable Court are not complete.
He referred to the case of Agbeotu V. Brisbe (2005) 10 NWLR (Pt. 932) 1 at 37 where this Honourable Court per Augie JCA held that:
“As stated earlier, a party who questions the correctness of the record must formally attack the record with due notice of such complaint given to the opposing party, and any affidavit challenging the correctness of the record must be served on the trial judge, and/or registrar of the court”
That in compliance with the position of the law, the Respondents/Applicants herein upon being served with a copy of each of the Record of Appeal and Supplementary Record of Appeal wrote a petition to the Chairman, Osun State Judicial Service Commission and copied the Registrar of the Appellate section Registry of the Court below as well as the Registrar of session of the trial Judge. The said letter of protest is annexed to the affidavit in support of this application as Exhibit Tuns 4.
Furthermore, that in compliance with the position of the law to give due notice to the opposing party and to effect service on the trial judge and/or Registrar of the court below, the Respondents/Applicants herein has filed this Motion on Notice together with accompanying affidavit and annexed Exhibits and same has been endorsed for service and service will be effected on the Appellant, the Registrar of the Court below and the Registrar, appellate section Registry of the Court below.
Learned counsel referred to and reproduced the provision of Order 8 Rule 6 of the Court of Appeal Rules, 2011 and thereafter submitted that both page 3 of the Amended Statement of Claim and Exhibit TUNS 3 (Exhibit D2) tendered during the trial at the court below are necessary in disposing of the appeal in Appeal No.CA/AK/171/2013.
He submitted that the Respondents/Applicants herein, in order to compile and transmit the said page 3 of the Amended Statement of Claim and Exhibit TUNS 3 to this Honourable Court applied for the certification of the Amended Statement of Claim and the Amended Statement of Defence at the registry of the court below through one of the counsel appearing with learned senior counsel for the Respondents/Applicants, Mr. Soji Oyetayo and vide a letter dated 11/10/2013. That, the said letter is annexed to this application as Exhibit TUNS 6.
That the Registrar of the court below vides a letter dated 11/10/2013 however refused to certify the said documents and advised Respondents/Applicants to certify same at the Registry of this Honourable Court as the case file relating to the said documents had been transferred to this Honourable Court. That, the said Registrar’s letter dated 11/10/2013 is annexed to this application as Exhibit TUNS 7.
That the Respondents/Applicants have compiled the omitted page 3 of the Amended Statement of Claim and Exhibit TUNS 3 as further Supplementary Record of Appeal. The same is annexed to this application as Exhibit TUNS 5.
He urged us to direct the Registry of this Honorable Court to certify the said Additional Record of Appeal and to hold that the Additional Record of Appeal compiled for and on behalf of the Respondents/Applicants and annexed as Exhibit TUNS 5 as having been properly compiled and transmitted to this Honourable Court in compliance with Order 8 Rule 6 of the extant Rules of this Honourable Court.
In reiterating the facts of the case learned counsel to the Appellant/Respondent submitted that when the Appellant discovered that the lower court made heavy weather on the said page “3” of the amended statement of claim in his judgment on 11/7/2013 now at pages 329-367 of the main record, her counsel diligently conducted a search on 15/7/2013 into the case file at the lower court as shown in Exhibit C attached to the counter – affidavit upon which copies of the amended writ of summons and amended statement of claim actually filed on 13/11/2012 by the Applicants were paid and obtained after they were certified by one J. Taiwo, a Principal Registrar of the lower court who is still alive and in the service of the said lower court.
Counsel submitted that this application by the Respondents was filed mala fide for the sole aim or purpose of overreaching ground No. 13 of the additional grounds of appeal contained at pages 99 – 100 of the supplementary records of appeal before this Honourable Court.
That, contrary to the depositions in paragraphs 11, 12, 13, 14, 15, 17, 18, 19, 22, 23, 25, 27, 28, 29, 32, 37, 38, 39, 40, 41 and 42 of the supporting affidavit, the failure of the lower court to include page 3 of the amended statement of claim of the Applicants in either the main or the supplementary records of appeal in this case is due mainly to the fact that the said page 3 was omitted and was not among the processes actually filed by the Applicants on 13/11/2012 despite the fact that the lower court granted the Applicants leave to amend both their writ of summons and statement of claim unopposed on 6/11/2012 as shown in pages 313 – 314 of the main record of appeal.
He submitted further that the grant of an application for leave of this court vide Order 8 Rule 6 of the Court of Appeal Rules 2011 as prayed by the Applicants in this case should not be regarded as a matter of routine rather, such an application should be based on genuine/relevant materials, utmost good faith and the Applicants much approach the court with clean hands in equity. He urged us to refuse the application on the following grounds:
i. It is not true or correct as being claimed that page 3 of the amended statement of claim was actually filed at the registry of the lower court by the Applicants on 13/11/12 rather what they filed is shown and contained in exhibit B, i.e. a Certified True Copy of the amended statement of claim obtained on 15/7/13 from the lower court by the Appellant/Respondent. Therefore, the uncertified copy of page 3 of the purported amended statement of claim supplied from the archives of the Applicant’s solicitor is not admissible in law as a document to be relied upon for the conduct or prosecution of this appeals, on the authority of EDJEKIO V. OSIA (1998) 7 NWLR (Pt. 556) 82 at 93
ii. The Applicants in – house solicitor, Miss Ndidi Uyanna, did not disagree on the contents of the Supplementary Records of Appeal on 18/9/13 but pleaded with Mr. J. F. Akinyemi the said Senior Registrar in – charge of the compilation of record of appeal at the lower court to include a copy of the subpoena issued on one Mr. Seyi Aluko which was not exhibited during trial and Mr. Akinyemi obliged her and included same at pages 1 – 2 of the Supplementary record in this appeal contrary to the arguments of the Applicants in paragraphs 4.14 – 4.23 and 4.39 of their written address on this application.
iii. That the main purpose of bringing in the said page 3 of the omitted amended statement of claim is to overreach ground No. 13 of the Appellant’s ground of appeal in this case the omission which the Applicants discovered or realized belatedly when they were served with the supplementary record of Appeal in Osogbo by the court Bailiff.
He referred to the case of Williams V. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1) 1 at 5.
Learned counsel for the Appellant submitted further that if the Respondents/Applicants thought it necessary to have omitted page “3” of the amended statement of claim included in the record of appeal from the onset, their in – house solicitor, Miss Ndidi Uyanna, who handled the compilation of record of appeal in this case should have insisted and stood her ground stoutly on 18/9/13 while both counsel to the parties appeared before the Chief Registrar of the lower Court on this same issue in the presence of Mr. Akinyemi who is still alive and in the service of the Osun State Judiciary Osogbo till date, that, the failure to do so is fatal to this application.
On this, he referred to the case of Ezewusim V Okoro & Anr (1993) 5 NWLR (Pt. 294) 478 at 494.
He submitted that this application is like praying this court to amend the records of proceedings of the lower court based on the discretion of this court under its inherent power which must be judicially and judiciously exercised and in that regards he further submitted that the grant of this application will entail injustice to the Respondent same having been brought in bad faith and no cost can compensate the Respondent particularly when its ground No. 13 of the Notice of Appeal in this case would be overreached.
He referred to the case of Adetutu V Aderohunmu (1984) 1 SCNLR 515.
Finally, and as a special reaction to paragraphs 4.32 – 4.34 of the Applicants written address in support of this application, though the facts therein have no support of the affidavit evidence, he submitted that the Respondent’s general traverse referred to therein was based on the presumption that the Applicants would do the normal and proper thing expected of them after the grant of their application for amendment on 6/11/2012 based on their proposed amended statement of claim before the lower court and filed the correct version of their amended statement of claim prayed for having been exhibited but surprisingly, the Applicants omitted to file the said page 3 (that is Exhibit marked Tuns 2) on 13/11/12 and this is the true position of events in this case.
In ruling on this application, it is important to stress that it is in effect a challenge to the correctness of the record of appeal by the Respondents/Applicants at least in respect of “page 3” of the Amended Statement of Claim at the court below – which uncertified copy is now marked Exhibit Tuns 2 to this application.
By the above statement, it can be safely assumed that the parties are not contesting the inclusion of Exhibit D2 at the Court below – now marked Exhibit Tuns 3 to be part of the Supplementary record of appeal. Indeed, the Appellant did say that Exhibit D2 in the court below marked Exhibit Tuns 3 has already been transmitted as part of the Appellant’s supplementary record.
In respect of Exhibit Tuns 2, it seems to me that the starting point of enquiry or the search of the truth of what in fact happened to the said missing “page 3” of the amended statement of claim from the point of view of the Respondents/Applicants is the letter Exhibit Tuns 6 written to the ACR (Litigation) High Court of Justice Osogbo and the reply thereto Exhibit Tuns 7 which stated in relation to the request of certified true copies that the records in the case file had been transmitted to the Court of Appeal.
Now, before me is the certified true copy of the record in this appeal as admitted for use in Appeal No. CA/AK/171/13 in this Honourable Court.
From the said records, the Respondents/Applicants Amended Statement of claim is contained at pages 182/164 to 187/169, that process does not contain a page 3 in the amended statement of claim supposedly filed by the Respondents/Applicants in this appeal.
The omission of “page 3” in the amended statement of claim filed by the Respondents/Applicants is in sharp contrast to the inclusion of the same “page 3” in the Applicants proposed Amended Statement of claim as contained in pages 158/41 to 163/146 of the same record of appeal filed in this Honourable Court.
Meanwhile, the certified true copy of the Respondents Applicants amended statement of claim as contained in Exhibit B annexed to the Appellant’s counter affidavit tallied with and corroborated the facts of the omission of ‘page 3’ of the amended statement of claim as demonstrated at pages 182/164 to 187/169 of the record of appeal in this case.
The only inference from all of the above is that the Respondents/Applicants after filing the proposed Amended Statement of claim indeed forgot to put the “page 3” in the Amended Statement of Claim actually filed and used in the trial of the case in the court below. Now, a record of appeal properly so called is the record of a trial-court proceeding as presented to the appellate court for review. A record of appeal is made up of the proceedings and relevant documents tendered during the proceedings in particular matter.
See. Adesina V Adeniran (2002) 6 NWLR (Pt. 762) 84. Therefore, an appellate court does not have the inherit powers to amend the record of a trial court except of course the powers to correct obvious accidental slips and omissions apparent on the record and also to enable the pleadings conform to the evidence on record.
See. Jessica Trading Co. Ltd V Bendel Ins. Co. Ltd (1993) 1 NWLR (Pt. 271) 538.
Asolo V Asolo (1996) 2 NWLR (Pt. 431) 480.
In the instance case, the learned Counsel for the Appellants was right to say that the Respondents application seeks to invoke the discretion of this court to amend the records of proceedings of the lower court. That, that would not be a discretion exercised judiciously and judicially and in the interest of justice more especially as it overreached ground No. 13 of the Appellants Notice of Appeal.
Meanwhile, Respondent’s Applicants prayer No. 1 is couched in general terms, that is an order permitting the Respondents/Applicants to compile additional record for use in this appeal.
For the avoidance of doubt that prayer is granted in its general term denoting that the Respondents/Applicants are at liberty to compile additional record of appeal.
Respondents/Applicants prayer No. 2 (a) is refused. This court cannot grant a deeming order for the Applicants to add an uncertified copy of a page 3 of the Amended Statement of claim at the court below as part of the record of appeal in this case.
And, finally as further or other orders, the Applicants are at liberty to file a certified true copy of “Exhibit D2 at the court below” as part of the Record of appeal in this appeal.
The Respondents/Applicants application dated and filed on 17/10/2013 is granted in part.
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A.: I have had a preview of the Ruling just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA, and I agree with the conclusion therein.
I feel compelled to emphasize that generally speaking, the appellate court has no power to amend record of proceedings. See: Fawehinmi Construction Co. Ltd. vs. O. A. U. (1998) 6 NWLR (pt. 533) 171 @ 183.
However, in situations where failure to amend the record of proceedings will occasion miscarriage of justice or where facts proved and decisions given are at variance, the appellate court can exercise its inherent powers to amend record of the trial court. In Metal Construction (W.A.) Ltd. vs. D. A. Migliore & Anor. (1970) 6 – 9 SC 163, the Supreme Court opined thus:
“This court undoubtedly has inherent powers to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. The powers are exercised if and when necessary to prevent an occurrence of substantial injustice.”
Pages 182/164 to 187/169 of the Record of Appeal contained the respondent/Applicant’s Amended Statement of Claim and does not contain the allegedly filed page 3. It seems clear that the respondent/applicant omitted to file the said page 3 with the Amended Statement of Claim on 13/11/2012 and not that the Registrar of the court below omitted to include same while compiling the record of appeal. Therefore, this court cannot grant a deeming order of a document that was not part of the processes before the lower court for same to be included as part of the record of appeal. To do so will overreach the appellant/respondent herein.
Consequently, prayers 1 and 2(b) on the motion paper are granted. But prayer 2(a) is refused.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree entirely with the reasoning and conclusion reached by my learned brother OWOADE, JCA in the Ruling just delivered by him. The motion on notice dated and filed 17th October, 2013 is accordingly granted in part.
I make no order as to costs.
Appearances
Adekola Olawoye with him O. E. Bolanle and Olusegun Olubola for the Appellant/RespondentFor Appellant
AND
Chief Duro Adeyeye (SAN) with him Alex Owoeye for the Respondents/ApplicantsFor Respondent
