ADEBAYO v. FRN
(2022)LCN/15995(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, February 07, 2022
CA/LAG/CR/103/2020(R)
Before Our Lordships:
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ODUNEWU KAMORU ADEBAYO APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
CIRCUMSTANCES WHERE FORMAL REQUISITES FOR THE VALIDITY OF ALL JUDICIAL ACTS ARE SAID TO BE COMPLIED WITH
There is a general presumption of law to the effect that the formal requisites for the validity of all judicial acts are complied with so long as they are shown to have been done in a manner substantially regular. The position of the law is encapsulated in Section 168(1) of the Evidence Act and summarized by the latin maxim Omnia Praesumuntur Rite Esse Acta which means that all acts are presumed to have been done rightly and regularly until the contrary is proved. This presumption of law is commonly applied particularly to judicial and official acts.
This Court in the case of Access Bank Plc V. Vicapek Int’l Ltd & Anor (2016) LPELR-41262 CA held as follows:
“It is the law that when any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with. See Section 150 (1) of the Evidence Act now Section 168 (1) of the Evidence Act 2011. There is a legal presumption that judicial and official acts have been done rightly and regularly until the contrary is proved.”
Now, the Applicant has rightly pointed out that the presumption of regularity which inures in favour of judicial act is rebuttable in certain circumstances. The presumption of regularity of judicial act is rebutted only by contrary evidence. The onus is therefore on the party alleging the contrary to rebut this presumption of regularity which enures in favour of the act in question, with cogent evidence. See the case of Eromosele V. FRN (2016) LPELR-40539 CA, Doherty v Yusuf & Ors (2017) LPELR-41998 CA amongst others. PER UMAR, J.C.A.
WHETHER OR NOT COURTS NOTES OR RECORDS MUST BE VERBATIM REPORT OF ALL THAT WAS SAID OR DONE DURING TRIAL
The law is settled that the Court notes/records does not necessarily have to be a verbatim report of all that was said or done during trial. It is only expected that the Court does not leave out essential matters of the proceedings. See the cases of Adewole v The State (2013) LPELR-22163 CA and Dibie & Ors v State (2007) LPELR-941 SC. I am of the considered view that the mere fact that the answer of PW1 was not recorded verbatim by the learned trial Judge is not sufficient ground for the Applicant to seek an amendment of the record of the Court. PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgement): The Appellant/Applicant filed a Motion on Notice dated 23rd June 2020 (“the application”) seeking the following reliefs:
“1. AN ORDER amending the evidence of the Prosecution’s witness (Mr. Olusa Olaniran) contained at page 58 of the records of appeal which reads thus:
“The information the Defendant gave to the Commission that he would produce the suspect anytime we need him is false because he misled us to release him to him”
To reflect the correct evidence which is contained in the Certified True Copy (CTC) of the transcript of the electronic record of proceedings which reads thus:
“My Lord, because the Defendant could not produce the suspect for us so he gave us impression that he can produce him anytime we need him and he told us to release the suspect to him”
2. AND for such further and other orders as this Honourable Court may deem fit to make in the circumstance.”
The grounds upon which the application is predicated are:
“1. The evidence of the Respondent’s (Complainant’s) sole witness, Mr. Olusa Olaniran as contained at page 58 of the record of appeal does not represent the evidence given by the witness in the open Court.
2. The Appellant filed an affidavit challenging the content of records of appeal on March 13th, 2020.
3. The affidavit challenging content of records of appeal and (sic) was duly served on the Respondent and Honourable Justice M.A Dada through his registrar.
4. Both the Respondent and Honourable Justice M.A Dada did not file Counter-Affidavit.
5. It is in the interest of justice that page 58 of the records of appeal be amended to reflect the true evidence as given by Mr. Olusa Olaniran, the Respondent’s witness.”
The application in contention, is supported by an eighteen paragraphs affidavit dated 23rd June 2020, three exhibits (Exhibits A to Exhibit C), a Written Address dated 8th March 2021, and a Reply on Points of Law filed on 8th November 2021.
In opposition to the application, the Respondent filed a twelve paragraph counter-affidavit on 4th November, 2021 and a Written Address dated 3rd November, 2021. The Counter-Affidavit and Written Address filed by the Respondent were deemed properly filed and served on 9th November, 2021.
The Appellant/Applicant’s counsel distilled two issues for determination in the Written Address filed by in support of the Application to wit:
“1. Whether this Honourable Court has the power to correct or amend the record of proceedings of the lower Court.
2. Whether the Appellant has complied with the procedure for the correction of record of appeal.”
The Respondent’s counsel on its part formulated a sole issue for determination in its Written Address dated 3rd November, 2021 to wit:
“Whether or not the Appellant is entitled to the relief sought?”
The learned Counsel to the Appellant/Applicant filed a Reply on Points of Law on 8th November, 2021. The respective written addresses of the Appellants/Respondents and the Respondent/Applicant were argued and adopted on 9th November, 2021.
The extant application before the Court is interlocutory in nature. In determining any interlocutory issue, the Court is required to exercise due care and diligence not to delve into the resolution of main issue in controversy. To do otherwise is to prejudice the matter in respect of which the substantive issues are yet to be determined. With this mind, I have carefully looked at the issues raised by both parties in the application under consideration, and I am of the considered view that a sole issue is enough in the circumstances of the matter to resolve the conflict between the parties to wit:
“Whether the records of the appeal before the Court ought to be amended in the manner sought by the Appellant/Applicant.”
ISSUE FOR DETERMINATION
“Whether the records of the appeal before the Court ought to be amended in the manner sought by the Appellant/Applicant.
APPELLANT/APPLICANT’S ARGUMENTS
The learned counsel to the Appellant/Applicant (“Applicant”) submitted that by virtue of Section 15 of the Court of Appeal Act, this Court is vested with the powers to amend any defect or error in the record of appeal. Counsel to the Applicant cited the cases of Ojengbede v Esan & Anor (2001) LPELR-2372 SC, Obasi v Mikson Establishment Industries Ltd (2004) LPELR-7391 CA, Afribank Nigeria Plc v Shanu & Anor (1996) LPELR-13903 CA and the case of Sommer & Ors v FHA (1992) LPELR-3103 SC to buttress his submission.
It was contended that the Applicant has complied with the conditions for amending records of the Court as stipulated in the cases of Ojengbede v Esan & Anor (supra), Adegbuyi v APC & Ors (2014) LPELR-2421 SC, Garuba & Ors v Omokhodion & Ors (2011) LPELR-1309 (SC), Obiakor & Ors v Okafor (2017) LPELR- 43309 CA.
The Applicant’s counsel submitted that in compliance with the decision in Adegbuyi v APC & Ors (supra), the Applicant had deposed to an affidavit dated 13th March 2020 challenging the record of appeal and the said affidavit was served on the registrar of the lower Court.
Learned Counsel to the Applicant consequently urged the Court to grant the extant application.
RESPONDENT’S ARGUMENT
The learned counsel to the Respondent submitted that the record sought to be amended by the Applicant is duly dated and signed by Honourable Justice M.A Dada and represents a true record of what transpired during the Court proceedings of 18th April 2019.
Counsel submitted that by virtue of Section 168(1) of the Evidence Act, 2011 and the decision of the Court in Akeem v State (2017) LPELR-42465 SC, a presumption of regularity inures in favour of the acts of judicial officers. He submitted further that the records of a trial Judge supersede every record and remains binding. The cases of Offor & Anor v The State (2012) LPELR-19658 SC, PML (Nigeria) Limited v Federal Republic of Nigeria (2017) LPELR-43480 SC, DHL International Nig. Ltd v Mr. Segun Apata (2011) LPELR-4034 CA were cited to buttress his submission.
Respondent’s Counsel argued that the Applicant failed to show that the record of the learned trial Judge is incorrectly recorded and distorted. He submitted that the evidence relied on by the Applicant to impeach the correctness of the record of the lower Court is Exhibit A whose authenticity is doubtful and lacks probative value.
According to the Respondent’s counsel, the electronic transcript of the record of proceedings (Exhibit A) was not signed. Counsel further contended that the maker of Exhibit A is unknown and the identity of the officer who generated Exhibit A is shrouded in speculation.
Learned Counsel to the Respondent submitted that it is trite that a document must be signed and dated to be accorded probative value. Reliance was placed on the cases of Omega Bank (Nig) Plc v O.B.C Ltd (2005) LPELR-2636 SC, Bright & Ors v Iwuoha (2018) LPELR-43758 CA and the case of Ikeli & Anor v Agber (2014) LPELR-22653 CA.
The Respondent’s Counsel argued that Exhibit A been electronically generated, was not accompanied with a Certificate of Compliance as mandated by the requirements of Section 84 of the Evidence Act. He argued further that Exhibit A remains doubtful and cannot be relied on.
It was contended by the Respondent’s Counsel that assuming the evidence of PW1 as contained in Exhibit A is in fact genuine, it does not disturb the conviction of the Applicant or occasion a miscarriage of justice to the Applicant. The learned Respondent’s Counsel submitted that the Applicant has not only failed to impeach the correctness of the records of the lower Court, but he also failed to demonstrate that the acts complained of, occasioned a miscarriage of justice. The cases of Adesigbin & Ors v NB Plc (2018) LPELR-43852 CA and Nwankwoala v FRN (2018) LPELR-43891 SC were cited and relied on to buttress his submission.
Learned Respondent’s Counsel contended that the Applicant failed to provide cogent basis to actuate the Court in granting the reliefs sought in this application. We were referred to the cases of Oladimeji v Queen (1964) LPELR-25162 SC and Benhouse Building Society Ltd v Atagher & Ors (2014) LPELR-22647 CA.
The Respondent’s counsel consequently urged the Court to discountenance the arguments of the Applicant for lacking in merit.
APPLICANT’S REPLY
In response to the Respondent’s argument on the presumption of regularity which inures in favour of judicial acts, the learned Counsel to the Applicant submitted on the authority of Akeem v The State (2017) LPELR-42465 SC that such presumption of regularity may be rebutted where there is cogent evidence placed before the Court.
Learned Counsel to the Applicant submitted on the decisions of the Court in Abubakar & Ors v Yar’adua & Ors (2008) LPELR-51 SC and Oyenuga V. International Computers (Nig) Ltd (1991) LPELR-2877 SC that the correctness of the record of a trial Judge can be impugned by cogent evidence.
The Applicant’s Counsel submitted that parties are not required to provide the particulars/details of the Court officer that generated the transcript of Court proceedings. He contended that the most important thing is for the name of the officer who certified the document to be stated on the document and this has been complied with. Counsel to the Applicant contended further that the signature of the certifying officer and the date of certification are also appended on Exhibit A.
Learned Counsel to the Applicant submitted that the provision of Section 84 of the Evidence Act is applicable only to electronic documents sought to be tendered as evidence during trial and not a record of appeal as in the instant case.
The Applicant’s counsel consequently urged the Court to grant the reliefs sought in the application.
RESOLUTION OF SOLE ISSUE
There is a general presumption of law to the effect that the formal requisites for the validity of all judicial acts are complied with so long as they are shown to have been done in a manner substantially regular. The position of the law is encapsulated in Section 168(1) of the Evidence Act and summarized by the latin maxim Omnia Praesumuntur Rite Esse Acta which means that all acts are presumed to have been done rightly and regularly until the contrary is proved. This presumption of law is commonly applied particularly to judicial and official acts.
This Court in the case of Access Bank Plc v Vicapek Int’l Ltd & Anor (2016) LPELR-41262 CA held as follows:
“It is the law that when any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with. See Section 150 (1) of the Evidence Act now Section 168 (1) of the Evidence Act 2011. There is a legal presumption that judicial and official acts have been done rightly and regularly until the contrary is proved.”
Now, the Applicant has rightly pointed out that the presumption of regularity which inures in favour of judicial act is rebuttable in certain circumstances. The presumption of regularity of judicial act is rebutted only by contrary evidence. The onus is therefore on the party alleging the contrary to rebut this presumption of regularity which enures in favour of the act in question, with cogent evidence. See the case of Eromosele V. FRN (2016) LPELR-40539 CA, Doherty v Yusuf & Ors (2017) LPELR-41998 CA amongst others.
By the extant application, the Applicant is challenging the regularity of the record of proceedings of the lower Court particularly the record of the proceedings of 18th April 2019. According to the Applicant, the learned trial Judge did not properly record the answers extracted from PW1 during his cross-examination at the lower Court. More importantly, the Applicant has contended that the manual recording of the learned trial Judge is distinct from the electronic transcript of the proceedings of 18th April 2019.
The Applicant has consequently urged the Court to exercise the powers vested in it by virtue of Section 15 of the Court of Appeal Act to amend the records of the proceedings of 18th April, 2019 at the lower Court. In support of its application, the Applicant filed an Affidavit at the registry of the lower Court challenging the record of appeal and also annexed to the extant application, the transcript of the electronic record of the proceedings of 18th April 2019 at the lower Court.
I have carefully perused the application filed by the Applicant as well as the exhibits attached thereto. To my mind, the poser before the Court is whether the record of proceedings as contained in Exhibit B which is at page 58 of the record of appeal ought to be amended to reflect the details contained in Exhibit A.
The Applicant stood trial at the lower Court for the offences of conspiracy to pervert the course of justice contrary to Section 97(3) of the Criminal Law of Lagos State and making false statement to public officer contrary to Section 96(a) of the Criminal Law of Lagos State. During the trial, the Respondent called a sole witness-Olusola Olaniran. The evidence obtained from Olusola Olaniran during cross-examination is the subject of contention in this application.
In Exhibit B, the learned trial Judge manually recorded an answer to a question posed to Olusola Olaniran as follows:
“The information the Defendant gave to the Commission that he would produce the suspect anytime we needed him is false because he misled us to release him to him”
In Exhibit A, the transcript of the electronic record of proceedings recorded Olusola Olaniran (PW1) as follows:
“My Lord because the Defendant could not produce suspect for us so he gave us impression that he can produce him anytime we need him and he told us to release the suspect to him”
Now, the question preceding the answer in contention is stated in Exhibit A as follows:
“Can you tell this Honourable Court which particular information that the Defendant gave the Commission that is false”.
Upon a circumspect comparison of the answer to the above question as contained in Exhibit A and Exhibit B, I am of the firm view that the manual recording of the learned trial Judge is substantially regular and requires no amendment. While, the learned trial Judge may have rephrased the answer provided by PW 1, the manual record of the PW1’s answer to the question posed to him is substantially regular and was not recorded out of context or distorted by the learned trial Judge when compared to the electronic transcript of the record of proceedings in Exhibit A.
The law is settled that the Court notes/records does not necessarily have to be a verbatim report of all that was said or done during trial. It is only expected that the Court does not leave out essential matters of the proceedings. See the cases of Adewole V. The State (2013) LPELR-22163 CA and Dibie & Ors v State (2007) LPELR-941 SC. I am of the considered view that the mere fact that the answer of PW1 was not recorded verbatim by the learned trial Judge is not sufficient ground for the Applicant to seek an amendment of the record of the Court.
Simply put, there is no distortion of the evidence of PW1 in the manual record of proceedings of the lower Court as in Exhibit B. I therefore hold that the Exhibit B containing the manual record of proceedings continues to enjoy the presumption of regularity as endorsed in Section 168 (1) of the Evidence Act. This Court in the case of Moses v State (2017) LPELR-51539 CA espoused on the operations of the provision of Section 168(1) of the Evidence Act viz-a-viz the record of proceedings of a Court as follows:
“It is not in doubt that, there is a presumption of regularity in favour of any judicial or official act by virtue of Section 168 of the Evidence Act, 2011. However, for the presumption to be applicable, the act done must have been done substantially regular. Thus, where the Record of Appeal discloses that the judicial act was done substantially regular, it would be presumed that formal requisites for the validity of such judicial act had been complied with.”
Since the Applicant has not shown that the manual recording of the lower Court in Exhibit B is substantially irregular, I am not convinced that the present application has merit. In addition, the Applicant has failed to show the injustice suffered due to the evidence recorded in Exhibit B. Consequently, I hold that the provisions of Section 15 of the Court of Appeal Act cannot be activated to amend the evidence of PW1 as stated in Exhibit B.
In view of the foregoing, I hereby resolve the sole issue for determination against the Appellant/Applicant. It flows therefore that the Appellant’s application dated 23rd June 2020 is hereby dismissed.
No order to cost.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the ruling of my learned brother ABUBAKAR SADIQ UMAR, JCA and I agree with my lord that the application to amend the evidence of the prosecution witness as shown in the Record of Appeal, lacks merit. I have compared the electronic record of the evidence with the manual recording of same, and there is nothing materially different or inconsistent in the two versions. What Section 15 of the Court of Appeal Act, 2004 requires, is that this Court may amend any defect or error in the Record of Appeal. I see neither a defect nor an error properly so-called, that call for, or require an amendment of the evidence as recorded in the Record of Appeal.
The application therefore lacks merit. I too, dismiss it.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abubakar Sadiq Umar, JCA, made available to me a copy of the ruling, now delivered, in draft form, dismissing the application of the Appellant/Applicant.
I agree with, and adopt as mine the resolution of the issue in contention, as has been ably done by my learned brother. I also see no merit in this application, and hereby dismiss the same.
Appearances:
A. LABI LAWAL For Appellant(s)
A.B.C. OZIOKO For Respondent(s)