The Binding Force of the Record of Appeal on Courts and Litigants

CONTRIBUTOR: OKOSA CHINWENDU MARYCYNTHIA

Introduction

An appeal is the process by which a party invites a higher court to review and reconsider the decision of a lower court. The Court of Appeal Rules provide that every appeal shall be heard by way of rehearing.^[1] Accordingly, an appeal does not amount to a retrial; rather, it involves reconsideration of the case based on the evidence already before the lower court.

This study examines the binding force of the record of appeal on appellate courts and litigants. It analyses the principle that once the record of appeal is compiled and transmitted to the appellate court, it becomes the sole document upon which the court relies in determining the appeal. Under Nigerian law, the record of appeal constitutes a complete reproduction of the proceedings before the lower court, including the pleadings, evidence, rulings, and exhibits. Courts have consistently held that the record on appeal is binding on both the litigants and the appellate court and therefore serves as the exclusive basis for determining an appeal.

Finally, this work examines the implications and consequences of an incomplete record of appeal.

Meaning and Nature of Record of Appeal

A record of appeal is a compilation of materials from the trial court that the appellate court reviews to determine whether the lower court committed any error of law or procedure.^[2] It defines the scope of facts, evidence, proceedings, and rulings available for appellate consideration.^[3] In Ogele v Nuhu,^[4] the Court held that the record of appeal generally consists of the documents compiled by the appellant or, in some instances, the documents jointly settled and agreed upon by the parties as the record of appeal. It includes the entire proceedings of the trial court, together with every relevant document required for the determination of the appeal before the appellate court.

Before the transmission of the record of appeal to the appellate court, the parties must first settle the record. Settlement of the record refers to the process of identifying and organising the documents from the proceedings of the trial court that are necessary for the proper evaluation of the decision on appeal.^[5] The process commences with the service of the Registrar’s Summons on the parties, requiring them to appear before the Registrar for the settlement of the record. The Registrar is required to serve the summons within 14 days from the filing of the Notice of Appeal.^[6]

The purpose of the summons is to invite the parties to agree on the documents to be included in the record of appeal and to determine the amount the appellant must deposit to cover the estimated cost of compiling and transmitting the record of appeal.^[7]

The Rules further provide that where the parties fail to attend after being duly served with the summons, the Registrar may nevertheless proceed to settle the record and determine the amount payable for the compilation and transmission of the record of appeal.^[8]

The Role of the Record of Appeal in Appellate Proceedings

As earlier noted, an appellate court does not retry cases. A trial involves the examination of evidence by a court of competent jurisdiction to determine the legal rights and obligations of the parties before it.^[9] This process includes the examination of witnesses, the tendering and admission of documents and other forms of evidence, and their evaluation, culminating in the delivery of judgment. It is for this reason that appellate courts are said to rehear or review cases rather than conduct fresh trials.

Consequently, since an appellate court neither hears witnesses nor ordinarily receives fresh evidence, it must rely exclusively on the materials presented before the trial court in determining the issues raised on appeal. The record of appeal is therefore indispensable, as it constitutes the sole medium through which the proceedings, evidence, and decisions of the lower court are brought before the appellate court. In effect, an appeal is determined “on the record,” and the appellate court remains strictly confined to the contents of the record of appeal in the exercise of its appellate jurisdiction.

The Binding Force of the Record of Appeal on the Court

To properly appreciate the binding nature of the record of appeal on appellate courts, it is necessary to draw an analogy with the function of pleadings before the High Court. Parties and the court are bound by the pleadings filed before the trial court, and neither the parties nor the court may raise or determine issues outside those pleadings. A similar principle applies to the record of appeal in appellate proceedings.

In Prince Abubakar Audu V. FRN,^[10] the Supreme Court held that it is trite law that an appellate court cannot go outside the record of appeal in search of evidence favourable to any of the parties. Just as pleadings bind parties before the trial court, the Court of Appeal and the Supreme Court, as appellate courts, are equally bound by the record of appeal. In effect, the record of proceedings binds both the parties and the court until the contrary is proved. This position rests on the rebuttable presumption that the record of appeal is genuine and accurate.

Furthermore, in Dada v. Yandayi,^[11] the Court held that although an appeal amounts to a rehearing, such rehearing is conducted solely on the basis of the printed record before the appellate court. The record includes, among other things, the relevant processes filed by the parties, the exhibits tendered during the proceedings, and the judgments or rulings of the courts below. Consequently, until a duly prepared and transmitted record of appeal is before the court, an appellate court cannot effectively undertake the hearing of an appeal.

In view of the foregoing, the decisions above reiterate the principle that the record of appeal must strictly guide both the appellate courts and the parties. This underscores the importance of the parties attending the Registrar’s Summons for the settlement of the record. By participating in the settlement process, the parties can identify the relevant documents necessary for the appeal and exclude documents that are immaterial to the issues on appeal.

On the effect of an incomplete record of appeal, the Court held in Okochi & Ors v. Animkwoi & Ors that, since an appellate court determines appeals based on the record before it, the court must ensure that the record is complete as settled by the parties. Accordingly, an appellate court must exercise caution in hearing an appeal founded on an incomplete record and should ordinarily refrain from doing so unless the parties expressly consent to the hearing of the appeal on the incomplete record. The Court further held that such consent may constitute a successful defence of waiver where a party subsequently attempts to retract the consent. Importantly, the appellate court must formally record the consent of the parties.

The Court further recognised an exception where the missing portion of the record is, in the opinion of the court, so immaterial that it cannot affect the determination of the appeal in any manner. In such circumstances, the appellate court may proceed to hear the appeal notwithstanding the incomplete record.

From the foregoing, it is evident that where the record of appeal is incomplete, an appellate court will ordinarily decline to hear the appeal because it cannot effectively determine the issues before it on the basis of an incomplete record. However, the court may proceed where the parties expressly consent to the hearing of the appeal on the incomplete record, in which case such consent may operate as a defence to any subsequent objection. Additionally, where the omitted portion of the record is manifestly immaterial and incapable of affecting the outcome of the appeal, the appellate court may validly proceed with the hearing of the appeal.

Conclusion

The importance of a record of appeal cannot be overemphasised. This work has examined the meaning and nature of the record of appeal and has demonstrated its central role in the determination of appeals. Like pleadings before the trial court, the record of appeal binds both the parties and the appellate courts, thereby limiting the appellate court to the materials contained therein when exercising its appellate jurisdiction.

Furthermore, although an appellate court will ordinarily decline to hear an appeal founded on an incomplete record, the court may proceed where the parties expressly consent to the hearing of the appeal on the incomplete record, provided that the court formally records such consent. Similarly, where the omitted portion of the record is so immaterial that it cannot affect the determination of the appeal, the appellate court may validly proceed to hear and determine the appeal notwithstanding the missing portion of the record.

Reference:

1. Order 6 Rule 2(1).  ↑
2. Biazzo Law, ‘What is a Record of Appeal’, (12^th January, 2025), <https://www.biazzolaw.com/post/what-is-a-record-on-appeal> accessed 26^th April, 2026. ↑
3. Ibid. ↑
4. (1997) 10 NWLR (Pt 523) 109 at 122-123. ↑
5. PA Bobai & DU Dewan, A Practical Approach to Civil Litigation in Nigeria (2^nd edn, Jos University Press Limited 2022), 476. ↑
6. Order 8 Rule 2 Court of Appeal Rules, 2021. ↑
7. Ibid. ↑
8. Order 8 Rule 3 Court of Appeal Rules, 2021. ↑
9. Shima, BA, & Aboho, B, ‘Trial within a Reasonable Time under Nigerian Law: A Legal Myth or Reality?’, (2019), 19 Benue State University Law Journal <https://share.google/K3TnHKObIhaJPO152> accessed 26^th April, 2026. ↑
10. (2013) 19 E-WRN / 53 (SC) ↑
11. (2025) 8 NWLR (Pt. 1993) 517 SC ↑