CHINEKE v NIGERIA AIRWAYS (CA/L/52/86) [1988] NGCA 1 (8 May 1988)




BOLARINWA OYEGOKEB ABALAKIN                            JUSTICE, COURT OF APPEAL (Presided and Read the Lead Judgment)
FRANCIS OLISA AWOGU                                                JUSTICE, COURT OF APPEAL
UMARU ATU KALGO                                                       JUSTICE, COURT OF APPEAL


R. C. CHINEKE                                                                     APPELLANTS


1.    NIGERIA AIRWAYS LTD.                                             RESPONDENTS
2.    MR. BELLO   

BABALAKIN, J.C.A. (Delivering the Lead Judgment): This ruling deals with the poser whether or not a party to an appeal to this Court can unilaterally amend the record of proceedings on which the appeal will be argued.

The brief facts in this matter are that parties to this application had an appeal pending before this court and the record of proceedings of the said appeal have been transmitted to this court.

On 11/4/88 the Plaintiff/Appellant filed a motion before this court praying for

"an order amending the record, of appeal by adding at page 31 end of line 27 of the record, the words of the jotting of the Plaintiff Appellant's counsel, during the trial at the Ikeja High Court on the 7/3/84, as could be seen from the exhibit with the affidavit attached to this motion, or for making the said jotting part of the exhibits for the purposes of determining this Appeal, or for such further or other order as this Honourable Court may deem fit in the circumstances."

The Application was supported by a five paragraph affidavit to which the purported jotting by the counsel to the Appellant during trial was attached.

Learned counsel for the Appellant/Applicant submitted that this amendment of the record of proceedings will enable him to argue one of the grounds of appeal that complained of the conduct of the learned trial Judge at the hearing of the case.

Learned counsel for the Respondent vehemently opposed the application. She contended that appeals are based on decisions and not on conducts of Judges and that the way a Judge conducts himself in arriving at his decision is not subject to appeal; that this application amounted to giving additional evidence and that the Applicant has not gone about it in the proper way required by law.

She urged us to dismiss the application.

This application is intriguing. However, a situation that favours comparison with same has arisen in this court (Ibadan Division) in the case of Ayinla v. Adigun (1986) 3 NWLR (part 30) p.51t and I hereby quote from C pp.516 -517 of the judgment -the portion that is relevant to this application on hand:

"The respondent's Counsel in his preliminary objection further complained to the effect that -

1. After receipt of his copy of the Original Records of Appeal on 22/10/83 he found  that the record was incomplete in that it did not contain the Respondent's Notice of intention to contend that the Judgment should be affirmed on Grounds other than those relied on by the Court below. The notice was filed on 10/8/81 under 0.3 rule 15 for which a Receipt No. A477115 of 10/8/81 was issued.

2. The respondent's Counsel withdrew the Record of Appeal Records from the Court of Appeal Registry and recalled the Respondent's copy; but when the records were returned on 30/3/84 pages 263A, 263B, 264, 265 and 266 were embodied without the permission of the Court of Appeal to rectify the records.

3. Further, original last page of the Record which was page 264 was altered to read "267."

In view of the insertion the unauthorised pages should be struck out and having regard to the irregularities Counsel also urged that the appeal be dismissed.

He further pointed out that the appellants had not from the Registrar's Record at page 2 paid the outstanding balance of N200.00. On this ground he also urged the dismissal of the Appeal under 0.3 R.20 (3) of the Appeal Rules 1981.

The appellants' Counsel in his oral submission however in reply to the objection said the respondents Counsel is not saying that the record of appeal before this Court is incorrect, and that by virtue of Order 3 Rule 9, the duty of compilation of the record is vested on the Registrar of the Court below with the cooperation of the parties to the case.

It does not seem to me that the appellant's Counsel has satisfactorily answered or explained the allegations contained in the complaint set out above. Page 264 for example shows that the Notice there is under "Order VII Rule 13", and is dated"1st day of August 1981" the Notice which the respondent's Counsel alleged to have filed on 10th August 1981 was under "Order 3 Rule 15." The page is among the number of pages Counsel is alleging to have been wrongly inserted by the appellants' Counsel. He is infact saying that the Learned appellants' Counsel should not have in unilaterally sought to correct the record with the aid of the Registrar with am his know/edge and in the absence of" order of this Court which is seised of the case on appeal. The record is therefore incorrect as alleged.

Equally justifiable is the complaint that the appellants had not from the Registrar's Record at page 2 of the Record paid the outstanding balance of N200 as the appellants' Counsel did not in his reply say anything about the point (Refer to page 2 of the Registrar's Statement from page 1 an amount ofN200 is shown to be outstanding on the cost of the Records). This appeal as a result of the foregoing is not properly before this Court and it ought to be dismissed.

However, as the substance of the appeal itself is devoid of any merit, I feel I ought to consider Grounds of Appeal and the arguments of Counsel, and deal with the submissions summarily."

per Omololu -Thomas JCA (Italics supplied)

The case of the present application is even worse in that the amendment sought to be added to the record of appeal was not even made with the concurrence of the registrar of the lower court nor was it an authentic record of motions and for ruling of the court in existence somewhere. It was simply the ipse dixit notes described as "words of jotting" of counsel unilaterally taken down during trial the authenticity of which counsel alone and no one else can testify to.

I am also satisfied that it will be wrong to admit these "words of jotting" of the Plaintiff/Appellants's counsel as an exhibit in this case. It is, and still remains an unauthorised addition to the printed record of proceedings in this case.

To allow this application will amount to a rape on the rules of court governing compilation of records of appeal to this Court.

For the above reasons, this application is incompetent and is hereby dismissed. I award N100.00 costs in favour of the Respondent.

AWOGU, J.C.A.: I had a preview of the judgment now delivered by my brother, Babalakin,

J.C.A. I agree with it. The additional evidence sought to be adduced is from the jottings of counsel during the trial. The Court sat last over the issue about 4 years ago. In an appropriate case, this Court would, no doubt, have referred the additional evidence to the trial Judge for his own comments (See Ojegbende v. Esan (1987) 4 NWLR pt. 63, 49). But this is hardly an appropriate case, as memory often makes fools of us all. I abide by the order on costs.

KALGO, J.C.A.: I have had a preview of the ruling just readout by my learned brother Babalakin JCA. I agree with it and the conclusions reached therein. I shall also dismiss the application with N100.00 costs to the Respondent.

Without going into full details of the so called "words of jotting" of the learned counsel for the applicant, it is apparent that they only add up, to a 8 complaint on comments allegedly made by the trial Judge on a witness of the applicant in the course of the trial. These need not in my view, be recorded in the courts' proceedings unless the Judge wants to do so or the parties or their counsel agree that they should be recorded. Neither was shown to be the case here.

If at most, one treats the "words of jotting" as additional or fresh evidence. here again the nature and circumstances under which they were made, did not satisfy the test as laid  down in the Supreme Court cases of Akinyede v. Opere (1967) I All NLR 302 and Asaboro v. Aruwaji and ors (197-l) 4 SC 119 so as to make them part of the record of the trial court.

There is therefore no ground upon which this Court can act on any of its inherent powers in favour of the applicant. The application lacks merit and it is dismissed with N100.00 costs to the Respondent.


E.O. Dike - for the Applicant.

Mrs. O.M. Ayeni - for the Respondent.

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