PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES v. ENGR. ISAAC B. OSARO & ANOR
(2011)LCN/4720(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of June, 2017
CA/J/72/2015
RATIO
RECORD OF APPEAL: APPROPRIATE METHOD TO CHALLENGE THE CONTENTS OF A RECORD OF APPEAL
The law is that the appropriate method to challenge the contents of a record of appeal is not by canvassing facts and arguments in brief of argument of a party. It is by filing an affidavit challenging the contents of the record of appeal and setting out facts of the part of the proceedings or processes wrongly omitted from or stated in the record and serving the affidavit on the Registrar of the Lower Court. Thereafter, the party filed an application before the appellate Court seeking to amend the records of appeal to include further documents or additional information. See Uwechia v Obi (1973) 2 SC 1 at 5 – 6: Obiamalu v Nwosu (1973) 2 SC 15 at 17, Arum v Nwobodo (2013) 10 NWLR (Pt. 1362) 374: Adegbuyi v All Progressive Congress (2015) 2 NWLR (Pt. 1432) 1 and Daramola v A -G Ondo (2007) 7 NWLR (Pt. 665) 440 @ 462 – 463. The two steps must be taken by party challenging the records. PER ADZIRA GANA MSHELIA, J.C.A.
WRITING OF JUDGMENT: PROPER APPROACH TO JUDGMENT WRITING
In Adeyeye & Anor. v Ajiboye & Ors. (1987) 2 NWLR (Pt. 61) 432, 451 Oputa JSC (of blessed memory) had cause to comment on a proper approach to Judgment writing. His Lordship observed: “The proper approach for any trial Court is to first set out the claim or claims; then the pleadings; then the issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue; then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this, the trial Judge will record his logical and consequential findings of fact. It is after such findings, that the trial Court can then discuss the applicable law against the background of his findings of fact.” Still on this point, Nnemeka-Agu JSC in Duru & Anor. v Nwosu (1989) 4 NWLR (Pt. 113) 24, 55 gave guide as to proper method of writing judgment wherein he stated thus: “Every good Judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, sums up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reaches a verdict and makes consequential orders. More relevantly, it is now settled that the only method of evaluating evidence called by both sides in a civil case is to put each set of evidence on either side of an imaginary balance and weigh them together, whichever outweighs the other in terms of probative value ought to be accepted …” See also Ogba & Ors. v Onwuzo & Anor. (2005) 14 NWLR (Pt. 945) 331, Omotola & Ors. v The State (2009) 7 NWLR (Pt. 1139) 148 (sic); Nwankpu & Anor. v Ewulu & Ors. (1995) 7 NWLR (Pt. 407) 269: Tsalibawa v Habiba (1991) 2 NWLR (Pt. 224) 461 @ 422. The Appellant’s counsel rightly observed that the Judgment in suit No: FHC/J/C5/102/2013 did not contain the essential components of a good Judgment. Having deconsolidated the three suits, it was wrong for the learned trial Judge to adopt the judgment given in suit No: FHC/J/CS/101/2013 as judgment in suit No: FHC/J/CS/102/2013. Being a separate suit, the trial Court should have followed the proper approach in Judgment writing. As rightly contended by Appellant’s counsel the absence of reasons for the Judgment removes the basis for the judgment being a good Judgment in that, neither the appellant nor the respondent can attack or Justify the decision for the purposes of appeal. See Tsalibawa v Habiba (supra) page 477. The failure of the trial Court to write a separate judgment has occasioned a miscarriage of justice. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICE
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRUJustice of The Court of Appeal of Nigeria
Between
PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIESAppellant(s)
AND
1. ENGR. ISAAC B. OSARO
2. ATTORNEY GENERAL OF THE FEDERATIONRespondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court Jos Judicial Division, delivered on the 12th day of February, 2015, by Allagoa J.
The brief facts of the case leading to this appeal are as presented by the Appellant. That sequel to the Federal Government’s monetization policy that was being implemented in relation to Federal Government owned properties being occupied by Federal Government staff, the 1st Respondent expressed interest in respect of a two (2) bedroom flat in a block of 4 flats plus 1 room boys’ quarters of No.5A, Flat 4 Mangu Road, GRA Jos, Plateau state. The 1st Respondent’s request was granted by the President, Federal Republic of Nigeria vide a letter dated 14th July, 2010, based on terms and conditions which the 1st Respondent (who was the plaintiff of the trial Court) accepted. The 1st Respondent accepted the terms and conditions as contained in the appellant’s offer letter, Exhibit ‘A’, which terms and conditions were to be fulfilled within 80 days of the acceptance of the offer, but failed and or defaulted to comply with the terms of
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the contract as regards payment of the leasehold. Consequently Notice of revocation and quit notices were served appropriately on the 1st Respondent by the Appellant.
The 1st Respondent then commenced an action by a writ of summons dated 9/12/13 at the Federal High Court Jos Division claiming against the Appellant and one other the following reliefs:
a. A DECLARATION that the purported revocation of the plaintiff’s offer of leasehold interest by the 1st Defendant through its letter dated 8th November, 2013 is wrongful, null and void.
b. A DECLARATION that the plaintiff’s offer of leasehold interest dated 26th March 2012 is legal, valid and subsisting.
c. AN ORDER nullifying the purported notice of Government Intention to recover possession of the property being occupied by the plaintiff situate at 5A, Flat 2 Mangu Road, GRA, Jos, Plateau State.
d. AN ORDER restraining the Defendants from evicting the plaintiff and granting the plaintiff more time to enable plaintiff raise funds to pay the balance of the consideration for the lease in view of plaintiff’s inability to secure a loan to finance the leasehold within the stipulated tenure.
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Pleadings were filed and exchanged, and hearing commenced in the suit. Both 1st Respondent who was the plaintiff of the trial Court and the Appellant who was the 1st defendant of the trial Court called a witness each. The 1st Respondent tendered a total of four (4) exhibits as contained of Pages 14 – 22 of the record. The appellant tendered two (2) exhibits as found at pages 137, 144 – 147 of the record. Both parties filed and adopted their written addresses. At the stage of delivering Judgment, the learned trial Judge after stating the claim of the 1st Respondent (who was the plaintiff) concluded as follows:
“In this suit, the parties joined issues and evidence was led, then parties filed and adopted their written arguments.
It is pertinent to note that this suit in all material particular is same as FHC/J/CS/102/2015 between Mr. Noel Awila v P.I.C.F.G.L and another wherein this Honourable Court has delivered its Judgment in full. The two cases were filed the same date with same defendant and same facts. It is in view of the above that I hereby adopt my judgment in FHC/J/CS/102/2013 Mutatis Mutandis to be my Judgment in this case.
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Therefore all the reliefs claimed in his suit is granted as prayed and the defendants counter claim failed.”
Dissatisfied with the said decision, Appellant lodged an appeal to this Court vide its Notice and Grounds of Appeal dated 15/4/2015 containing lone ground of appeal.
Parties filed and exchanged their respective briefs of argument as required by rules of Court. The Appellant’s Brief of Argument settled by Joseph Adejoh Esq., and R.T Anderifun Esq., was dated 2/9/2015 and filed on 4/9/2015. The 1st Respondent’s Brief of Argument settled by E.A Adenitan Esq., dated 28/4/2016 was filed on 29/4/2016, but deemed properly filed on 19/01/2017. Appellant’s Amended Reply to 1st Respondent’s Brief of Argument was dated and filed on 24/3/2017 but deemed properly filed on 5/4/2017.
When the appeal came up for hearing, both counsel adapted their respective briefs of argument. Appellant’s counsel urged the Court to allow the appeal. While Respondent’s counsel urged the Court to dismiss the appeal.
The Appellant’s Brief of Argument contained a lone issue for determination of this appeal. The issue read thus:
“Whether the adoption of Judgment of a
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distinct/separate suit with suit No. FHC/J/CS/102/2013, between Mr. Noel Aywila v The Presidential Implementation Committee & 1 Or without more by the learned trial Court as its judgment in suit No. FHC/J/CS/102/2013 is not invalid.”
On the part of the 1st Respondent lone issue was also formulated for determination as follows:
“Whether the adoption of the Judgment in suit No. FHC/J/CS/102/2013 by the trial Court as its judgment in suit No. FGC/J/CS/102/2013, in view of the consolidation of both suits, is valid?”
Both parties formulated one issue each. I have examined the two issues formulated for determination by parties in this appeal. I find the issues similar as such I will adopt the Appellant’s issue in determining this appeal.
The lone issue has been reproduced (supra). In arguing the said issue, learned counsel for the Appellant submitted that a good Judgment is expected to contain certain essential components. Reliance placed on Ndibe & Ors. v Ndibe (2008) LPELR at 4178 (CA) Paras A C. Counsel contended that the absence of reasons for Judgment removes the basis of the judgment being a good judgment in that neither the
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appellant nor the respondent can attack or justify the decision for the purposes of appeal. Reliance placed inTsalibawa v Habiba (1991) 2 NWLR (Pt. 147), @ 422. According to counsel, in the instant case, none of the essentials of a Judgment can be found in the Judgment of the learned trial Court. That the judgment lacks reasons. Learned counsel submitted that the adoption by the trial Court of its judgment in suit No: FHC/J/CS/102/2013 as its Judgment in suit No: FHC/J/CS/101/2013, has occasioned a miscarriage of justice in that the two suits are distinct and unconsolidated. It was argued that this has denied the appellant or any other party appealing as person interested from making the choice of appealing in suit No: FHC/J/CS/101/2013.
Counsel further submitted that the Appellant’s suit was heard separately from suit No: FHC/J/CS/102/2013, and there was no order of consolidation made in the two suits by the learned trial Court. That the record of proceedings as well as the documents tendered in evidence in the suit giving rise to this appeal are not the same with those in suit No: FHC/J/CS/102/2013. Learned counsel submitted that even if the trial
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Court had consolidated these suits, the position of the Law is that it is only for the convenience of trial and no more, as each suit must be considered on the merits. That each suit must be individually proved and Judgment must be given separately at the end of the common trial in respect of each suit. That evidence in proof of one need not necessarily constitute evidence in proof of the other. Cited in aid Maduka kalu v Chima Okereke Chima & Anor. (2007) LPELR – 8309. Learned counsel submitted that the situation in the present case is made worst for the appellant in the face of the fact that the two suits of the trial Court were unconsolidated. Counsel contended that a judgment of the Court must demonstrate in full a dispassionate consideration of issues properly raised and heard and must reflect the results of such on exercise. See Ojogbue & Anor. v Nnubia & Anor. (1972) 7 N.S.C.C 478 at 482. That the said judgment failed to demonstrate in full a dispassionate consideration of the issues properly raised and heard. Counsel maintained that the appellant though aggrieved, has no decision in this case to appeal against as such no valid Judgment
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was given by the trial Court in respect of suit No: FHC/J/CS/101/2013. That delivery of a judgment in a cause or matter is part of hearing of the cause or matter. He urged the Court to so hold and resolve the lone issue in favour of the appellant.
The response of the 1st Respondent is as contained under issue one. Learned counsel in the brief of argument submitted that the assertion of the Appellant that the suits were not consolidated amounts to speculation. The Law is trite that no Court of law will presume or speculate on the existence of facts not placed before it.
Reliance placed on Galadima v State (2012) 18 NWLR (pt. 1333) 610 @ 628 Para G and Council F.U.T.A v Ajidhun (2012) 14 NWLR (Pt 1321) 583 at 599 Para E. Counsel contended that this Court and parties before the Court are bound by the Records of Appeal. Cited in aid Madueke v Madueke (2012) 4 NWLR (pt. 1289) 77 at 93 – 94 paras E – A. Counsel submitted that the contention of the Appellant that the suits were not consolidated as to warrant the adaption of the Judgment in this suit No: FHC/J/CS/102/2013 in suit No: FHC/J/CS/101/2013 is unfounded in the light of the Record of Appeal
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before this Court. Counsel argued that the main purpose of consolidation of action is to save costs and time. That consolidation will not usually be ordered unless there are some common questions of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the action such that it renders it desirable that the whole should be disposed at the same time. Reliance placed on Obi v Ngige (2012) 1 NWLR (Pt. 1280) 1 at 36 paras E – F. Counsel maintained that the trial Court complied with the basic requirement of a consolidated suit. That the case of Chime v Ezea (2009) All FWLR (Pt. 470) 659 at 691 paras A – B laid the basic requirements that the Court must comply with in relation to consolidated suits.
Learned counsel further submitted that the record of appeal herein is clear that in spite of the fact that the suits were consolidated together, the trial Court heard and determined each suit. According to him none of the suits was abandoned. That Court gave judgment on each of the suits. He argued that the judgment delivered in suit No: FHC/J/CS/101/2013 (the present appeal), is a separate Judgment even though the Judgment of
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the Court in FHC/J/CS/102/2013 was adapted. Counsel contended that the grouse of the Appellant is that the trial Court cannot adapt the Judgment in suit No: FHC/J/CS/102/2013 because the suits were not consolidated. Counsel maintained that the record of appeal herein shows that the suits were consolidated. Reference was made to pages 214 – 215 of the record.
Learned counsel further submitted that the attitude of the Appellant in challenging a procedure he willingly submitted to at the trial Court because it is no longer favourable to him amounts to approbating and reprobating on the same point. That the Law frowns at this. Cited in aid Union Bank of Nigeria v Nwachukwu (2000) All FWLR (Pt. 6) 986 at 996 paras B D. counsel maintained that there was consolidation of suit No: FHC/J/CS/101/2013 with suit No: FHC/ J/CS/102/2013 and that separate Judgment was delivered in each suit. That the mere fact that the Court adapted the substantial part of the judgment in suit No: FHC/J/CS/102/2013 does not vitiate the fact that a separate Judgment was delivered in this suit. That the assertion of the Appellant that a separate Judgment was not delivered in the suit No:
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FHC/J/CS/101/2013 amounts to a tenacious hold to technicality. Reliance placed on Odigwe v J.S.C Delta State (2011) 10 NWLR (Pt. 1255) 259 at 281 para E. Counsel urged the Court to discountenance the argument of the Appellant as the argument is not supported by the record of appeal. See Azubuike v Govt. Enugu State (2014) 5 NWLR (pt. 1400) 364 at 399 paras E-F. He urged the Court to resolve the lone issue in favour of the Respondent.
In the reply brief, learned counsel for the Appellant pointed out that appellant filed on affidavit challenging the record of proceedings in this appeal. That the said affidavit exhibits the record of proceedings of suit No: FHC/J/CS/102/2013. The affidavit is attached to the reply. Reliance placed on Daramola v A.G Ondo (2000) 7 NWLR (Pt. 665) 440 at 462- 463. Counsel maintained that Exhibit ‘A’ attached to the affidavit challenging the records settles the confusion in this appeal. That is, the confusion of whether or not the suit leading to this appeal was heard separately or consolidated suit No: FHC/J/CS/102/2013 by the trial Court. Counsel contended that the arguments of learned counsel to the 1st Respondent is totally
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misconceived and misleading. He urged the Court to discountenance the arguments contained in the 1st Respondent’s brief and allow the appeal.
I have gone through the printed record and the submissions of respective counsel as canvassed in their Briefs of Argument. First of all, I will have to resolve the central issue which is whether or not the suit leading to this appeal was heard separately or consolidated with suit No: FHC/J/CS/102/2013 by the trial Court. Appellant’s contention is that suit No: FHC/J/CS/101/2013 was heard separately While the 1st Respondent maintained that suits Nos. FHC/J/CS/102/2013 and FHC/J/CS/101/2013 were consolidated. The Appellant in trying to convince the Court that the instant appeal was heard separately challenged the record.
The law is that the appropriate method to challenge the contents of a record of appeal is not by canvassing facts and arguments in brief of argument of a party. It is by filing an affidavit challenging the contents of the record of appeal and setting out facts of the part of the proceedings or processes wrongly omitted from or stated in the record and serving the affidavit on the Registrar of the
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Lower Court. Thereafter, the party filed an application before the appellate Court seeking to amend the records of appeal to include further documents or additional information. See Uwechia v Obi (1973) 2 SC 1 at 5 – 6: Obiamalu v Nwosu (1973) 2 SC 15 at 17, Arum v Nwobodo (2013) 10 NWLR (Pt. 1362) 374: Adegbuyi v All Progressive Congress (2015) 2 NWLR (Pt. 1432) 1 and Daramola v A -G Ondo (2007) 7 NWLR (Pt. 665) 440 @ 462 – 463. The two steps must be taken by party challenging the records.
In the instant case the appellant complied with the requirements. The appellant filed a 13 paragraph affidavit challenging the records of proceedings in this appeal. The said affidavit exhibits the records of proceedings of suit No: FHC/J/CS/102/2013. Same was attached to appellant’s amended reply on points of law to the 1st Respondent’s Brief of Argument along with Exhibit ‘A’ the proceedings of the lower Court. Appellant also compiled a supplementary record which was transmitted to this Court on 17-3-17 but deemed properly compiled and transmitted on 5/4/2017.
It is pertinent at this stage to reproduce Exhibit ‘A’ the proceedings of the trial Court of 22nd
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October 2014.
“SUIT NO FHC/J/CS/102/2015
BETWEEN:
Mr. NOEL AYWILA PLAINTIFF
AND
1. PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES
2. ATTORNEY GENERAL OF THE FEDERATION DEFENDANTS
Plaintiff is present,
A. Omolowo with E.A Adenitan for plaintiff
R.T Anderifun appearing with M.P
Nwansat for the 1st Defendant.
A.A Nuhu for the 2nd Defendant.
Omolowo: The case having been consolidated in the sense that the judgment in one case shall apply to the others with regards to FHC/J/CS/100/2013 the plaintiff hinted that he would want a means of settlement out of Court. I have conferred with my colleague on the other side we therefore seek leave of Court in that regard. As to FHC/J/CS/101/102, the parties are in Court and the witnesses are in Court. We seek to proceed to hearing. Court: Yes go no (sic).
Mr. Anderinfun: We are of the view that all the cases should proceed for trial and at the end of the day if settlement is reached then so be it.
Court: I have observed that there might be disparity in the various cases as different witnesses and different documents are involved in the
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various cases. Therefore the cases shall be heard separately. The trial in this case is therefore ordered to commence.
PW1: Sworn to on the Holy Bible and states in English Language. My name is Noel Awila, a civil servant with Federal Ministry of Land, Housing and Urban Development. I am the plaintiff in this case. I made a witness statement on oath before this Honourable Court.”
See pages 196-197 of the record of Appeal in Appeal No. CA/J/73/2015 (marked Exhibit ‘A’). I have perused both records of appeal i.e CA/J/72/2015 and CA/J/73/2015. I agree with learned counsel for the Appellant that the portion of the record reproduced (supra) was not captured in record of Appeal No. CA/J/72/2015.
Learned counsel for the 1st Respondent at page 2 of their Brief of Argument had contended that on 9th October, 2014 plaintiff’s counsel now 1st Respondent made an application for consolidation of the three suits i.e No. FHC/J/CS/100/2013, FHC/J/CS/101/2013 and FHC/J/CS/102/2013. That the suits are similar to each other with regards to the facts and claims before the Court. That the plaintiff’s application extended to the prayer that the Judgment of the Lower
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Court in one of the cases should be taken as having the same effect and binding on the other two cases. This is reflected at pages 214-215 of the record of Appeal in Appeal No. CA/J/72/2015 only. I observed that Pages 214 – 215 reflected different proceedings. For clarity and emphasis I will similarly reproduce the proceedings of 9th day of October, 2014. The proceedings read thus:
“SUIT NO FHC/J/CS/101/2013
BETWEEN:
ENG ISAAC B. OSARO – PLAINTIFF
AND
1. PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES
2. ATTORNEY GENERAL OF THE FEDERATION -DEFENDANT
Parties absence (sic)
E.A Adenitan for plaintiff who is absent. I apologies for his absence.
R. T Anderifun appearing with M.P Mwansat for the 1st Defendant.
Mr. Adenitan: This matter has similar facts and similar claim with Suit No FHC/J/CS/01/2013 and FHC/J/CS/102/2013. On the strength of this, we urge this Honourable Court that the judgment of this Court should be taken as having the same effect and binding on the other two cases.
Mr. Anderinfun: We are in agreement with the suggestion of what my learned friend is
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proposing.
Court: Upon hearing Mr. Adenitan and Mr. Anderifun all counsel for the parties in this matter, suit No FHC/J/CS/101/2013 will be used as a test case and Judgment, thereto will be taken as applying and binding on case No FHC/J/CS/100/2013 and FHC/J/CS/101/2013.
Adjourned to 22/1 0/2014.”
It is clear from the proceedings of 9th October, 2014, that parties agreed to hear the three suits together. However, a close perusal of the proceedings of 22nd October, 2014, showed that the learned trial Judge change his mind and deconsolidated the three suits. He ordered that the three suits would be heard separately due to disparity in the various cases as different witnesses and different documents are involved in the various cases. It cannot therefore be correct to say that the three suits were consolidated as argued by 1st Respondent’s counsel. The latter order by the trial Court on 22-10-14 to hear the suits separately, clearly supports the argument of Appellant’s counsel that the three suits were no longer heard as consolidated suits but separate suits. I agree with Appellant’s counsel that there was no order or further orders setting aside
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the aforementioned ruling and consolidating the suits thereafter.
Having found that the three suits were not consolidated, the next issue to resolve is whether the adaption of Judgment of a distinct/separate suit with suit No FHC/J/CS/102/2013, between Mr. Noel Aywila v The Presidential Implementation Committee & 1 Or. without more by the learned trial Court as its Judgment in suit No. FHC/J/CS/101/2013 is not invalid.
As earlier stated in this Judgment at the stage of delivering judgment, the learned trial Judge after stating the claim of the 1st Respondent (who was the plaintiff) held thus:
“In this suit, the parties joined issues and evidence was led, then parties filed and adopted their written arguments. It is pertinent to note that this suit in all material particulars is same as FHC/J/CS/102/2013 between Mr. Noel Awila v P.I.C.F.G.I and Another wherein this Honourable Court has delivered its Judgment in full. The two cases were filed the same date with same defendant and same facts.
It is in view of the above that I hereby adopt my judgment in FHC/J/CS/102/2013 mutatis mutandis to be my judgment in this case.
Therefore all
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the reliefs claimed in this suit granted as prayed and the defendants counterclaim dismissed.”
See pages 228 229 of the record. Appellant’s counsel had contended that the Judgment in suit No: FHC/J/CS/102/2013 did not contain essential components of a good Judgment. In Adeyeye & Anor. v Ajiboye & Ors. (1987) 2 NWLR (Pt. 61) 432, 451 Oputa JSC (of blessed memory) had cause to comment on a proper approach to Judgment writing. His Lordship observed:
“The proper approach for any trial Court is to first set out the claim or claims; then the pleadings; then the issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue; then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this, the trial Judge will record his logical and consequential findings of fact. It is after such findings, that the trial Court can then discuss the applicable law against the background of his findings of fact.”
Still on this point, Nnaemeka-Agu JSC in Duru & Anor. v Nwosu
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(1989) 4 NWLR (Pt. 113) 24, 55 gave guide as to proper method of writing judgment wherein he stated thus:
“Every good Judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, sums up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reaches a verdict and makes consequential orders. More relevantly, it is now settled that the only method of evaluating evidence called by both sides in a civil case is to put each set of evidence on either side of an imaginary balance and weigh them together, whichever outweighs the other in terms of probative value ought to be accepted …”
See also Ogba & Ors. v Onwuzo & Anor. (2005) 14 NWLR (Pt. 945) 331, Omotola & Ors. v The State (2009) 7 NWLR (Pt. 1139) 148 (sic); Nwankpu & Anor. v Ewulu & Ors. (1995) 7 NWLR (Pt. 407) 269: Tsalibawa v Habiba (1991) 2 NWLR (Pt. 224) 461 @ 422.
The Appellant’s counsel rightly observed that the Judgment in suit No: FHC/J/C5/102/2013 did not contain the essential components of a good Judgment. Having deconsolidated the three suits, it was
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wrong for the learned trial Judge to adopt the judgment given in suit No: FHC/J/CS/101/2013 as judgment in suit No: FHC/J/CS/102/2013. Being a separate suit, the trial Court should have followed the proper approach in Judgment writing. As rightly contended by Appellant’s counsel the absence of reasons for the Judgment removes the basis for the judgment being a good Judgment in that, neither the appellant nor the respondent can attack or Justify the decision for the purposes of appeal. See Tsalibawa v Habiba (supra) page 477. The failure of the trial Court to write a separate judgment has occasioned a miscarriage of justice. I hold that the adoption of the judgment in suit No: FHC/J/CS/101/2013 as judgment in suit No: FHC/J/CS/102/2013 by the trial Court is invalid. I therefore resolve the sole issue in favour of the Appellant.
From all what I have said, it is my firm view that the appeal is meritorious and succeeds. Appeal allowed. The judgment of the Federal High Court delivered on 12th day of February, 2015 in suit No: FHC/J/CS/102/2016 is hereby set aside as it is null, void and of no legal effect. I order that the case be remitted back to Federal
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High Court for hearing and determination de novo by another Judge.
Parties to bear their own costs.
UCHECHUKWU ONYEMENAM, J.C.A.: Before now, I had and read the draft of the lead judgment against the decision of the Federal High Court Jos Judicial Division just delivered by my learned brother, ADZIRA GANA MSHELIA, JCA.
In the lead judgment the facts on record were extensively considered with the applicable principles of law. I therefore agree with the conclusion that the appeal has merit. The appeal is allowed. I set aside the null judgment of the Federal High Court Jos Judicial Division in suit No: FHC/J/CS/102/2016; delivered on 12th February, 2015. The matter shall be remitted back to the Federal High Court Jos for hearing and determination de novo by another Judge of the Court.
I abide by the order as to cost.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Adzira Gana Mshelia, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide by the
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conclusion reached therein. I have nothing to add.
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Appearances:
Joseph Adejoh with him, R.T. Anderifun, Esq.For Appellant(s)
A.N Okwori with him, D.K Dung, Esq., Miss O.Y Othman, H. A Joseph (Miss) for 1st Respondent.
2nd Respondent absent (though served)For Respondent(s)
>
Appearances
Joseph Adejoh with him, R.T. Anderifun, Esq.For Appellant
AND
A.N Okwori with him, D.K Dung, Esq., Miss O.Y Othman, H. A Joseph (Miss) for 1st Respondent.
2nd Respondent absent (though served)For Respondent
