When an appellant files a notice of appeal in Nigeria, many assume the battle is half won. However, the failure to transmit record of appeal within the statutorily prescribed time has become a silent killer of numerous appeals, leaving litigants stranded at the doorstep of justice. Understanding the effect of failure to transmit record of appeal is not merely academic, it determines whether your appeal lives or dies before a single argument is heard.
Understanding the Transmission of Record of Appeal
The transmission of record of appeal refers to the process by which the lower court forwards all relevant proceedings, documents, and evidence to the appellate court. This record of appeal forms the foundation upon which the appellate court examines whether errors were made in the lower court’s decision. Without proper transmission of record of appeal within the prescribed time, the appellate court lacks the jurisdictional materials to hear the appeal effectively. The failure to transmit record of appeal within statutorily prescribed time occurs when the lower court or the appellant fails to compile and forward these materials within the timeframe stipulated by law. Nigerian law provides specific timelines for the transmission of record of appeal, and these timelines are not mere procedural guidelines. They carry significant legal consequences that can determine the fate of an appeal.
Statutory Framework Governing Transmission of Record of Appeal
The statutorily prescribed time for transmission of record of appeal varies depending on the appellate court involved. For appeals to the Court of Appeal, Order 8 of the Court of Appeal Rules mandates that the record of appeal must be transmitted within three months from the date of filing the notice of appeal. This 60 days period for transmission of record of appeal is considered sacrosanct in Nigerian appellate practice. The failure of the Registrar to transmit, then 30 days for the appellant to transmit, totaling 90 days. See S.E.C. VS OKEKE (2018) 12 NWLR (Pt. 1634) 462
The statutorily prescribed time for transmission of record of appeal to the Supreme Court is also 90 days from the date of filing the notice of appeal. The time for the transmission is mandatory, not directory.
Legal Consequences of Failure to Transmit
The effect of failure to transmit record of appeal within statutorily prescribed time is devastating for appellants. When there is failure to transmit record of appeal within the 90 days period, the appeal is deemed incompetent and liable to be struck out. This principle has been affirmed repeatedly by Nigerian appellate courts, making the transmission of record of appeal a matter of life and death for any appeal.
The Court of Appeal in the recent case of Ogungbulugbe vs State1, the court stated that:
“By virtue of Order 8 rule 18 of the Court of Appeal Rules, the prescribed time of 60 days given to the registrar to compile and transmit records of appeal and, where he fails or neglects to do this, the 30 days thereafter given to the appellant to compile and transmit the said records must be complied with as they are statutory provisions that must be followed. Where the registrar and or the appellant fails or neglects to comply with this statutory provision, then that failure or negligence strikes at the roots and taproots of the appeal, thus depriving the Court of Appeal the jurisdiction to entertain and/or adjudicate on the appeal. In the instant case, the time frame to file and transmit the records of appeal had elapsed and the failure of the appellant to file an application for extension of time to file same rendered the appeal incompetent”2
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Similarly, in the case of Iwuji v. Ekweghariri3, the Court of Appeal, on the effect of failure of the Registrar to compile and transmit record of appeal stated that:
By virtue of Order 8 rule 18 of the Court of Appeal Rules 2016, if the registrar has failed to compile and transmit the record under rule 1 and the appellant has also failed to compile and transmit the records in accordance with rule 4 the respondent may by notice of motion move the Court to dismiss the appeal.
Hence, the primary consequence of failure to transmit record of appeal is that the appeal becomes statute-barred. Once the statutorily prescribed time for transmission of record of appeal expires without the record being transmitted, the appellant loses the right to prosecute the appeal unless the court grants an extension of time. The Court of Appeal has also been uncompromising in dealing with cases involving failure to transmit record of appeal. Like the above case, the court has struck out appeals where the transmission of record of appeal was not completed within the statutory 90 days period. These decisions underscore that the statutorily prescribed time for transmission of record of appeal is calculated to ensure speedy justice and prevent indefinite delays in appellate proceedings.
Who Bears Responsibility for Transmission?
Understanding responsibility for the transmission of record of appeal is crucial in determining the effect of failure to transmit record of appeal within statutorily prescribed time. The duty to ensure compilation and transmission of record of appeal is shared between the lower court and the appellant, though each bears distinct responsibilities.
The lower court registrar has the primary duty to compile the record of appeal and transmit it to the appellate court. When the failure to transmit record of appeal results from the lower court’s administrative lapses, the appellant may have grounds to seek an extension of time. However, the appellant must demonstrate diligence in following up on the transmission of record of appeal and cannot simply file the notice of appeal and wait passively.
The appellant’s responsibilities regarding transmission of record of appeal include paying the required fees for compilation, providing necessary information to the lower court, and actively monitoring the progress of the record’s preparation.
Seeking Extension of Time after Failure to Transmit Record of Appeal
When there has been a failure to transmit record of appeal within statutorily prescribed time, the appellant’s only remedy is to apply for an extension of time. The application for extension of time after failure to transmit record of appeal must be supported by compelling reasons explaining why the transmission of record of appeal could not be completed within the statutory period.
Courts have established strict criteria for granting extensions after failure to transmit record of appeal. The appellant must demonstrate: (1) that the failure to transmit record of appeal was not due to their negligence or inaction; (2) that there are good and substantial reasons for the delay in transmission of record of appeal; (3) that the appeal has reasonable prospects of success; and (4) that granting the extension will not cause prejudice to the respondent that cannot be compensated by costs.4
The burden of proof in applications arising from failure to transmit record of appeal lies heavily on the appellant. Courts will not grant extensions simply because the statutorily prescribed time for transmission of record of appeal has elapsed. Recent cases have shown that courts examine the conduct of both parties when considering applications for extension of time following failure to transmit record of appeal.5 Where the failure to transmit record of appeal results from the appellant’s negligence or delay in fulfilling their obligations, courts are less sympathetic. Conversely, where the transmission of record of appeal was delayed despite the appellant’s diligence, courts may be more willing to grant extensions.
Conclusion
The effect of failure to transmit record of appeal within statutorily prescribed time is clear and devastating. Your appeal dies before it truly lives. Nigerian courts have consistently demonstrated that the transmission of record of appeal within the mandated 90 days period is not negotiable. The failure to transmit record of appeal strikes at the very foundation of appellate jurisdiction and will result in the appeal being struck out.
- (2025) 19 NWLR (Pt. 2020) 393 ↩︎
- see also Uwazurikev. A-G, Fed (2007) 8 NWLR (Pt.1035) 1 ↩︎
- (2020) 14 NWLR (Pt.1743) 147 ↩︎
- See Anii vs Otu (2017) 12 NWLR (Pt. 1578) 30 ↩︎
- See (2009) 9 NWLR (Pt. 1147) 509 F.C.M.B Plc VS N.I.M.R. ↩︎
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CONTRIBUTORS
OJIENOH SEGUN JUSTICE, ESQ.,
Lead Partner, EKO SOLICITORS & ADVOCATES
Salawa Abike Sule-Azeez
Counsel, EKO SOLICITORS & ADVOCATES
Record of Appeal, Record of Appeal, Record of Appeal, Record Appeal, Record of Appeal.