A complete and accurate record of proceedings is essential for an appeal; failure to ensure this can render applications for additional transcripts inadmissible.

[1] After a full trial the learned trial Judge in the High Court in Sabah and Sarawak at Tawau, found the Defendants liable for inducing the 787 and 66 smallholders to breach a Joint Venture Agreement ("JVA") entered into, on 09 August 1998. Resulting from that finding, the learned trial Judge ordered the Defendants to pay damages to be assessed.

[2] The trial took 36 days during which the evidence of 29 witnesses was led. Eleven witnesses for the Defendants and eighteen witnesses for the Plaintiff had testified. The trial ended on 25 June 2014 after which counsel for both parties were directed to submit their submissions on the same day. The submissions was possible as it was the practice of the Court to provide the notes of proceedings at the end of each day of hearing. The learned trial Judge proceeded to deliver his decision on 30 September 2014. The First Defendant did not file any appeal. The other two Defendants (the Appellants) filed a Notice of Appeal against the whole of that decision on 08 October 2014.

[3] After filing the appeal, and on 14 October 2014, the Appellants solicitors wrote to the High Court for the notes of proceedings of the trial. The High Court forwarded 6 digital video discs ("DVDs") to the Appellants solicitors. The DVDs contained, amongst others, the recordings of that part of the evidentiary stage during which the Appellants and 7 other defence witnesses were examined. The Appellants were also informed by the High Court that it was unable to give the Court recordings for 12 and 13 September 2013, 30 June to 2 July 2014, and 17 to 20 February 2014, due to some technical issues.

[4] Upon examining the DVDs, according to the Appellants solicitors it was discovered that the folder for the recordings for the trial on 06 March 2014 was empty, there were no recordings for the trial on 21, 22, 23 and 24 April 2014 and the examination of two of the witnesses, DW1 and DW11, was not recorded at all.

[5] The Appellants solicitors informed the High Court of the abovementioned issues via letters dated 11 December 2014 and 24 December 2014. The High Court confirmed that it did not have the recordings due to some technical errors in the recording system. By way of a letter dated 19 June 2015, the Appellants solicitors informed the High Court that it was also discovered that the High Courts notes of proceedings (the "HC NOP") did not in any event, record matters that were contained in the available recordings. In this regard, it was conveyed to the Court that:

i. the HC NOP did not reflect the key aspects of the evidence given by the witnesses for the Appellants and the exchanges between the learned trial Judge, the witnesses and the counsel;

ii. the Appellants solicitors had prepared fresh transcripts of the available recordings to incorporate the missing evidence (the "Fresh Transcripts") into the HC NOP. The Fresh Transcripts includes the testimonies of DW2 to DW10; and

iii. the Appellants solicitors requested the High Court to certify the Fresh Transcripts so as to enable for the inclusion of the the same in a supplementary record of appeal.

[6] In response, the High Court instructed the Appellants solicitors to obtain the Respondents consent to incorporate the Fresh Transcripts before the Court would certify the same. The Respondents solicitors however, refused to verify and certify the Fresh Transcripts. It was contended by the Respondent that the Fresh Transcripts is an excerpts of only certain parts of the notes of proceedings and should not be added on into the HC NOP, unless it contains the transcripts of the entire proceedings from the commencement of trial to judgment. As such, the inclusion of the Fresh Transcript into the HC NOP would no