EFFECT OF AN INCOMPLETE RECORD OF APPEAL: A REVIEW OF DADA V. YANDAYI (2025) 8 NWLR (PT. 1993) 517

An incomplete record of appeal is a fatal defect that prevents the appellate court from hearing the case and often leads to the appeal being struck out, regardless of it’s merits. Lawyers must therefore ensure that every necessary document is included, as failing to do so can destroy a client’s chances of justice.



It goes without saying that a record of appeal is the appellate court’s roadmap. It is the formal compilation of documents and proceedings from the lower court that the appellate court uses to determine whether the lower court’s decision was correct. 


A record of appeal contains the judgment appealed against, the pleadings, proceedings, exhibits, and the proposed notice of appeal, etc.; and it determines what the appellate court can review. Thus, an incomplete record can deprive the court of the material needed to decide the appeal and may lead to dismissal, striking out, or remittal for completion depending on the circumstances. 


One of the most fundamental requirements of appellate adjudication is the transmission of a complete and accurate record of appeal. A record of appeal is the lifeline of an appeal because appellate courts do not retry cases, take oral evidence, or recall witnesses. Instead, they rely on what is contained in the record.


The Supreme Court of Nigeria reaffirmed this foundational principle in the case of DADA V. YANDAYI (2025) 8 NWLR (Pt. 1993) 517, where it emphatically buttressed that an incomplete record of appeal robs an appellate court of jurisdiction to entertain an appeal. Per IDRIS, J.S.C., “... the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by an appellate court.”


This Legal Bit examines the facts of the case, the reasoning of the Supreme Court, and the principles that emerge therefrom. 

A simple fact of what transpired in the above case is as follows:
The dispute in Dada v. Yandayi (Supra) arose from a land ownership claim before the Upper Sharia Court, where the Respondents succeeded. The High Court, on appeal, reversed the decision in favour of the Appellants. However, on appeal to the Court of Appeal, the judgment of the Upper Sharia Court was restored/upheld. The Appellants further appealed to the Supreme Court. However, when the Supreme Court examined the record of appeal transmitted from the Court of Appeal, it discovered that only the lead judgment of the Court of Appeal was included in the record, and that the concurring judgments of the other Justices were missing. This omission became the centerpiece of the Supreme Court’s decision in this instant case.


The Court is after whether the Supreme Court itself (or any appellate court) can hear and determine an appeal where the record of appeal is incomplete. When the record of appeal is incomplete, the appeal cannot be heard by the appellate Court (which, in this instance, is the Supreme Court), and therefore, the Court will be unable to determine the issues raised on appeal. This shows how significant and important a record of appeal is to an appeal. To this effect, the Apex Court held that:


“The importance of the record of appeal in our appeal system cannot be overemphasized as cases have to be decided based on the record of appeal and without it, hearing of appeals will be difficult to undertake. Although an appeal is a rehearing of the matter, the rehearing is by considering the case based on the printed record before the appellate court, which includes but not limited to the processes filed that are relevant to the determination of the appeal, as well as exhibits tendered if any, and the judgments/rulings of the courts below. Therefore, until there is before the court a record of appeal duly prepared and transmitted, hearing of appeals will be difficult to undertake by an appellate court.”


The Supreme Court emphasised, unequivocally, that a complete record of appeal is jurisdictional. An appellate court cannot adjudicate an appeal unless it is furnished with all components of the lower court’s decision, including concurring or dissenting opinions where applicable. Secondly, concurring judgments form part of the final decision, by virtue of Section 294(2) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended). A judgment delivered by a panel of Justices is not complete unless all concurring or dissenting opinions are included. In this instance, the absence of the other Justices’ judgements rendered the record fundamentally defective. Again, an incomplete record means the appeal is incompetent. Without a full record, the appellate court cannot meaningfully review the lower court’s reasoning. The court, therefore, has been robbed of it’s jurisdiction. Equally, parties cannot waive an incomplete record; even if a Counsel fails to raise the issue, the court can raise it suo motu, because jurisdiction cannot be conferred by consent or waiver.


The appeal, as in this instant case, could not be heard because the appellate court is strictly bound by the record of appeal transmitted to it. The Justices of the Court of Appeal whose concurring opinions were referred to in the appellant’s brief could not be traced in the record of appeal, thereby making the record incomplete. Because an appellate court cannot rely on or act on anything not contained in the record, the defect was fundamental, and the Apex Court was in no position to proceed with the appeal.


It is well-settled that the effect of an incomplete record of appeal could lead to dismissal or striking out of the appeal where the missing parts are essential to the determination of the appeal and cannot be supplied in a way that preserves fairness to the respondent. However, where the appellate court finds the omission was procedural or inadvertent and the missing documents can be obtained from the trial or lower court via remittal or order to complete the record, the appellate court may then stay proceedings and order the trial or lower court to transmit the missing parts so the appeal can proceed. 


With recourse to this instant case, the implication of an incomplete record of appeal in an appeal, as held by the Supreme Court is that:


“The court is bound by the record of appeal before it and cannot depart therefrom. An appellate court only hears an appeal on the record before it and must ensure that the record is complete as it would amount to a legal sacrilege for an appellate court to adjudicate upon an appeal in the face of an incomplete record of appeal. A complete record of appeal is not therefore a privilege. It is mandatory, failing which the appellate cannot re-hear the appeal. An incomplete and/or incorrect record of appeal being unutilisable renders the appeal incompetent. In this case, the incompleteness of the record of appeal deprived the Supreme Court of its means to effectively hear and determine the appeal, as the whole decisions complained about was not before the court. The omitted judgments were imperative for the just determination of the appeal and could not be waived or considered immaterial. The lead judgment alone could not be the judgment of the lower court. Therefore, without access to the whole decision complained of, the court would not be in a position to reach a just resolution of the issues submitted before it, as any decision reached in such circumstances affecting the rights of the parties, would no doubt lead to a miscarriage of justice. Thus, it was impracticable for the court to reach a just decision on the issues submitted before it for the determination of the appeal based on an incomplete record. An act to the contrary would constitute a miscarriage of justice.”


To sum up everything as a conclusion, a record of appeal is essential because it frames what the appellate court can examine; an incomplete record of appeal risks dismissal or striking out of the appeal. Finally, the Supreme Court struck out the appeal since the record was incomplete. Hence, the Court held the appeal to be incompetent and, therefore, struck it out.


About the Authors: 


Hisbullah Sarkibaba and Rabiatu Abubakar Barde are members of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. They can be reached via 08163807626 and 08084346606, respectively.