Order 7, Rule 4 of the Supreme Court Rules 1985 governs the transmission and compilation of the Record of Appeal from the Court of Appeal to the Supreme Court in respect of appeals against final decisions of the Court of Appeal.
This provision empowers the Registrar of the Court of Appeal to compile and transmit the Record of Appeal from the Court of Appeal to the Supreme Court within six months from the date the Notice of Appeal was filed. Notably, Order 7, Rule 4 of the Supreme Court Rules 1985 does not specifically state that the Appellant can undertake this process nor does it address what is to happen where the Registrar fails or refuses to compile and transmit the Record of Appeal.
There is an ongoing discussion among legal practitioners about whether in respect of appeals against final decisions of the Court of Appeal, an Appellant can independently handle the transmission and compilation of the Record of Appeal from the Court of Appeal to the Supreme Court, particularly in cases where the Registrar of the Court of Appeal has failed or refused to fulfil this responsibility. Indeed, there seem to be two prevailing schools of thought on this matter.
Legal practitioners who belong to the first school of thought contend that Order 7, Rule 4 of the Supreme Court Rules 1985 explicitly designates the Registrar as the appropriate authority to compile and transmit the Record of Appeal to the Supreme Court. Their argument posits that given Order 7 Rule 4 of the Supreme Court Rules 1985 specifically mentions the Registrar, any other individual or authority, apart from the Registrar of the Court of Appeal, lacks authorization to compile and transmit the record of appeal from the Court of Appeal to the Supreme Court. Advocates of this viewpoint lean on the maxim: “Expressio unius est exclusio alterius,” which has been judicially interpreted and applied to mean to “the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication”.
Legal practitioners who belong to the second school of thought contend that, in cases where the Registrar of the Court of Appeal fails or refuses to fulfil his/her responsibility under Order 7 Rule 4 of the Supreme Court Rules 1985, an Appellant should be empowered to personally handle the compilation and transmission of the Record of Appeal. Proponents of this perspective argue that this is essential to uphold the Appellant’s constitutional right to appeal. They emphasize that the Registrar’s failure or refusal to compile and transmit the Record of Appeal should not obstruct the Appellant’s right to pursue an appeal against a final decision of the Court of Appeal and to have the appeal adjudicated within a reasonable timeframe.
In my opinion, the arguments put forth by each side of the debate hold merit, and the scarceness of decisive judicial pronouncements on this issue has hindered the resolution of the debate.
Do not yield to despair, as a glimmer of resolution might have emerged in the decision of the Supreme Court in Onubogu v. Anazonwu (2023) 17 NWLR (Pt. 1914) 425. In the aforementioned case, the Appellant contended that the Respondent’s appeal at the Court of Appeal lacked competence, arguing that it was based on an incompetent Record of Appeal. Among various reasons, the Appellant asserted that the Record of Appeal was incompetent because it was compiled and transmitted by the Respondent personally, not by the Registrar of the Federal High Court. The Appellant posited that in light of Paragraph 9 of the Election Judicial Proceedings Practice Directions 2022 Rules explicitly designating the Registrar as the authorized person to compile and transmit the Record of Appeal to the Court of Appeal, no one other than the Registrar has the mandate to compile and transmit the Record of Appeal.
The Supreme Court dismissed the Appellant’s argument, asserting that the compilation and transmission of the Record of Appeal is in furtherance of the Respondent’s constitutional right of appeal. Accordingly, the Registrar’s failure or refusal to compile and transmit the Record of Appeal cannot be allowed to frustrate the Respondent’s right to pursue an appeal and have it adjudicated within a reasonable timeframe.
The Supreme Court explicitly stated that even though Paragraph 9 of the Election Judicial Proceedings Practice Directions 2022 Rules does not expressly grant an Appellant the authority to compile and transmit the Record of Appeal to the Court of Appeal in cases where the Registrar fails or refuses to meet the prescribed timeline, an Appellant in such circumstances is permitted to personally undertake the compilation and transmission of the Record of Appeal. The Appellant can subsequently request an extension of time to regularize the said record of appeal, and such a record will not be deemed incompetent. Please hear his Lordship, Jauro, JSC on pages 454 – 455, paras. C – D of the law report:
“As rightly submitted by all counsel in this appeal, the duty to compile and transmit the record is that of the Registrar of the trial Court. In the circumstance, it would have been unfair and unjust for the lower court to make the 1st Respondent suffer for the lapses of the Registrar. In granting the 1st Respondent’s application for extension of time, the lower court relied on the decision of this court in Maku v. Sule (supra). In that case, this court had cause to shed light on the purport of Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011, which is in pari materia with Paragraph 9 of the Election Judicial Proceedings Practice Directions 2022…
The Appellant herein has sought to distinguish the instant appeal from the case of Maku v. Sule (supra) by arguing that it was the Secretary of the Tribunal who compiled and transmitted the record in that case, while the 1st Respondent personally compiled and transmitted the record in the instant case. I have to confess that I do not understand what the Appellant seeks to achieve by this so-called distinction. Is he suggesting that once the Secretary of a Tribunal or the Registrar of the trial court refuses to perform his duty, a prospective Appellant’s right of appeal should forever be lost? That would be a truly ridiculous proposition. A prospective appellant is not to be shut out simply because a Court official refused to perform, his duty. To do so would be to grant Court or registry officials’ unbridled powers to put an end to a litigant’s right of appeal.
I am in complete agreement that the right of appeal is constitutional and it is far too important to be left to the indiscretion of the official of a Court, registry. In the instant case, the 1st Respondent acted properly when she took charge of her own fate by compiling and transmitting the record when the Registrar of the trial court failed in the performance of his duty.” [underlining is mine for the sake of emphasis]
While the decision in Onubogu v. Anazonwu (supra) pertains to Paragraph 9 of the Election Judicial Proceedings Practice Directions 2022 Rules rather than Order 7, Rule 4 of the Supreme Court Rules 1985, it nonetheless provides valuable insights into the judicial perspective of the Apex Court on the right of an Appellant to transmit and compile the Record of Appeal when the Registrar has failed or refused to do so, especially in the absence of any specific provision in the rules authorizing the Appellant to undertake such actions.
In my humble view, there is no apparent reason why the Supreme Court’s decision in Onubogu v. Anazonwu (supra) should not be relevant and applicable to the Record of Appeal compiled and transmitted by an Appellant from the Court of Appeal to the Supreme Court, as outlined in the Supreme Court Rules. If the Registrar’s failure or refusal to compile and transmit the Record of Appeal according to Paragraph 9 of the Election Judicial Proceedings Practice Directions 2022 Rules cannot and does not impede the Appellant’s right to pursue an appeal, it seems reasonable that the Registrar’s failure or refusal to compile and transmit the record of appeal to the Supreme Court under Order 7, Rule 4 of the Supreme Court Rules 1985 should likewise not obstruct the Appellant’s right to pursue an appeal and have it adjudicated within a reasonable timeframe.
Perhaps, with time, a definitive legal stance may emerge regarding the Appellant’s right to compile and transmit the record of appeal to the Supreme Court in cases where the Registrar fails or refuses to act, despite the absence of a specific provision in the Supreme Court Rules. Meanwhile, proponents of the second school of thought should find some comfort in the recent decision of the Apex Court in Onubogu v. Anazonwu (supra). This decision seemingly supports their argument that in respect of appeals against final decisions of the Court of Appeal, an Appellant can legitimately compile and transmit the Record of Appeal from the Court of Appeal to the Supreme Court, even without a specific provision in the Supreme Court Rules authorizing such actions.
Tunde Ahmed Adejumo
