AKINYEDE & ORS V. OPERE & ORS

• Pages: 299-301

AKINYEDE & ORS V. OPERE & ORS

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299

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AKINYEDE & ORS V. OPERE & ORS

G.B.A. AKINYEDE AND OTHERS

V.

10 Y.M. OPERE AND OTHERS

APPELLANTS

RESPONDENTS

SUIT NO. SC 216/1967

SUPREME COURT OF NIGERIA

ADEMOLA,

BRETT,

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COKER,

LEWIS,

MADARIKAN,

18th December, 1967

C.J.N.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

20 Appeals - Appeals to Supreme Court

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- Additional evidence to correct trial

judge's record - Standard of proof

ISSUES:

1.

What is the standard of proof applied to a party who wishes to call additional

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evidence in the appeal courc on the grounds that the trial court record did not

correctly record evidence given by a witness.

2.

When will an appellate court exercise its inherent power to amend the record

of the trial court?.

FACTS:

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This was an application by the defendants/appellants by motion in the Supreme

Court for leave to call additional evidence to correct the trial judge's record. The

complaint was to the effect that Iwo passages in the trial judge's notes did not cor-

rectly record the evidence given by one of their witnesses, a prominent Lagos

White Cap Chief, who gave material evidence on Yoruba Customary Law of dis-

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tribution on intestacy, and that although the trial judge questioned the witness at

length there was nothing in the record to show that he was questioned at all by

the court.

Though both counsel (or their juniors) had taken notes during the trial, the first

applicant (himself a legal practitioner) did not refer to or rely on those notes in his

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affidavit. Instead, when arguing the motion he merely stated his version of the wit-

ness's evidence, which differed ;Libstantially from the record; and in regard to one

of the passages complained that he was unable to say more than that the evidence

was "to the following effect." He submitted that the justice of the case would be

met by the Supreme Court itself hearing the witness testimony. Respondent's coun-

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sel, in opposing the application, contended that the application went beyond call-

ing additional evidence but in effect asked the Court to amend the record. He

urged that the court should be wary of adding anything to the judge's notes unless

there was strong evidence to warrant it.

The notes of counsel on either side, were examined by the court, solely on the

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second complaint, and showed that the judge did question the witness.

HELD:

1. Although the record, at most a summary in narrative form of what the judge

understood the witness to say may be to some extent, inaccurate or incomplete,

there was sufficient evidence oefore the Court to prove the applicant's version