KABIRU ABOKI BADA V. PEOPLE OF LAGOS STATE
(2019) LPELR-49324(CA).
“The Appellant in ground 8 is substantially challenging the record of the Court. It is the allegation of the Appellant that the lower Court did not fully or correctly record the proceedings before it. This is a weighty allegation just like the allegation of bias. Once again, it is not just enough to make such allegation but it has to be proved by credible evidence. The law has stated clearly how a party can challenge the record of a Court. To do so, the party so challenging must swear to an affidavit. In Dantiye & Anor vs. Kanya & Ors (2009) 4 NWLR (Pt.1103) 13, it was held: “The record of proceedings of a Court is presumed by law to be correct until the contrary is proved by credible evidence. The procedure where a party seeks to attack the correctness of the record is that the challenger swears to an affidavit setting out the facts of part of the proceedings wrongly stated in the record. Such affidavit must be served on the trial judge and/or on the Registrar of the Court or Tribunal who would then if he desires to contest the affidavit, swear to and file a counter – affidavit. See Agwarangbo vs. Nakande (2000) 9 N.W.L.R. (Pt.672) 34; Abatan vs. Awudu (2004) 17 N.W.L.R. (Pt. 902) 430. The appellants failed to take the steps outlined above and they are accordingly foreclosed from raising their voice against the authenticity of the record of proceedings before this Court.” Similarly in Irek vs. Okpechi & Ors (2015) LPELR- 40601 (CA), this Court held: “Where a party intends to contest the validity authenticity or correctness of record of proceedings of a Court or Tribunal, the party must file an affidavit disclosing in substantial details the areas constituting the dispute, it is certainly not enough for a part to make bare and unsubstantiated claim or allegation of incompleteness of records, in the instant appeal the 1st Respondent failed to furnish sufficient particulars of the documents alleged to be missing from the records of the Tribunal. The law is well settled that where a part intends to challenge the correctness of record of proceedings or appeal, the proper procedure is for the party to swear to an affidavit setting out the facts or part of the record that is alleged to be missing, upon so doing, the lower Court shall then have the opportunity to react to the allegation, and possibly offer explanation on the missing link, see: Abatan vs. Awudu (2004) 17 NWLR (Pt. 902) 430, NGIGE vs. OBI (2006) 14 NWLR (Pt. 999) 209 and Idakula vs. Richards(2001) 1 NWLR (pt. 693) 111. In the absence of establishing proof of incompleteness of records of the lower Tribunal as compiled and transmitted, the record of appeal in the instant appeal shall be presumed to be correct, consistent, actual and factual representation of the business of the lower Tribunal. All records of proceedings certified by a person who has authority to so certify such records shall be presumed to be correct as required by Section 146(1) of the Evidence Act 2011. The 1st Respondent failed to properly establish legitimate claim to the relief sought since the challenge is not concreted on the proper procedure for challenging the record of the lower Tribunal, It is needless investing too much time on this preliminary objection, it is misconceived and therefore liable to be dismissed, it is hereby dismissed.” Finally on this point, I shall refer to the Supreme Court case of Sommer & Ors vs. FHA (1992) 1 NWLR (Pt. 219) 548 where the Court said the party challenging the record of a Court must file an affidavit. There is no such affidavit before this Court. This issue is resolved against the Appellant and in favour of the Respondent.”
Per TOBI, JCA (Pp. 42-45, para C)