SHODEINDE & ORS v. BAZUAYE & ORS
(2021)LCN/15591(CA)
In The Court of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, December 03, 2021
CA/B/517/2019
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. MRS IROGHAMA SHODEINDE (NEE BAZUAYE) 2. MRS NEKPEN AJARI (NEE BAZUAYE) 3. MR. UYI BAZUAYE 4. MRS EHIMWENMA EHANAH (NEE BAZUAYE) 5. OMOSEDE BAZUAYE 6. EVA BAZUAYE 7. OGHOMWEN BAZUAYE APPELANT(S)
And
1. DR. SAM OSARIEME BAZUAYE 2. PA. NATAMWEN BAZUAYE 3. MRS EKHOSUYIYAWE (NEE BAZUAYE) 4. MR. EFOSA BAZUAYE RESPONDENT(S)
RATIO DECIDENDI
EFFECT OF A CASE COMMENCED DE NOVO
The settled position of the law is that an Order for a retrial or a new trial or trial de novo or a venire de novo is an Order that the whole case should be retried or tried de novo or tried anew as if no trial whatever had been had in the first instance. See the case of KAJUBO vs. STATE (1988) LPELR- 1646 SC. See also the case of BABATUNDE vs. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD & ANOR. (2007) LPELR- 698 SC, where the apex Court per MUHHAMAD, JSC had this to say on the subject:
“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Black’s Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered…new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.” See the case of Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G. This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo v. The State (supra): “The expressions “anew trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given. The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance. See: Kajubo v. The State (supra). In 1978 this Court per Idigbe, JSC; in the case of Fadiora v. Gbadebo (1978) NSCL (Vol. 1) 121; (1978) 3 SC 219 had cause to make the following observation. “We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.” It is therefore rather strange that the Appellant herein, after calling a witness, the CW1, one Mr. Uyi Bazuaye whose evidence happens to be the only evidence adduced by the Claimants, now Appellants still contended that they adduced sufficient at the Court below in proof of their case. The said evidence of the CW1 is pasted at page 97 of the record and upon a careful and calm examination of the said piece of evidence seem to show that the said piece of evidence is literally, so to speak empty as there is nothing in the evidence of CW1 to sustain the claim of the Claimants.
It is to be noted that the evidence of the 1st Claimant, legally so to speak, was not made before the Court that gave judgment in this case. The case having commenced de novo, it is to be taken that with the old trial, “all old things have passed away” in the same manner as prescribed in the Scriptural injunction of 2 Corinthians 5:17. It would therefore be unthinkable to expect a different result when the Claimants had taken a back seat of an unmerited relaxation just in their minds they marshaled what they had considered sufficient evidence before a previous trial. The trial de novo simply connotes a fresh trial requiring the production of all that transpired in the previous trial anew: short and simply, as a trial de novo simply means that there was no trial before the present one. See cases of FIRST BANK OF NIGERIA PLC vs. E. D. TSOKWA (2004) 5 NWLR (PT. 866) 271 @ 306 PARAGRAPH C-D; BANKOLE vs. TELEREMOH NIG. LTD (1995) 2 NWLR (PT. 380) @ 726 RATIO 6.
What was expected of the 1st Claimant was to have physically appeared before the new Court of trial and to have given his evidence again rather than relying on having the evidence given by the 1st Claimant tendered and adopted by the CW1 and used as evidence in the fresh matter before the new judge. See the cases of EGHOBAMIEN vs. FMBN (2002) 7 SC (PT. 1) 143 and FRANCIS SHANU & ANOR vs. AFRIBANK NIGERIA PLC (2002) 6 SC (PT. 11) 135, where the apex Court per OGWUEGBU, JSC had this to say on the subject:
“Section 34(1) of the Evidence Act provides: “34(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable: Provided:- (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” Evidence given in a previous proceeding is relevant and admissible under the above subsection in proof of the facts asserted in that evidence; (a) if the witness is dead; (b) cannot be found; (c) is incapable of giving evidence; (d) is kept out of the way by the other party; or (e) when his presence cannot be obtained without amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable. For the evidence of a witness in one judicial proceeding to be deemed relevant in a subsequent proceeding, the evidence must have been given on oath and will not be applicable where the witness is alive and present in Court.”
The settled position of the law is that it is procedurally wrong for a judgment or any other decision of Court to be written on the evidence recorded by another judge. PER FREDERICK OZIAKPONO OHO, J.C.A.
The adoption and reliance on the Evidence led in a previous trial without due compliance with the Section 34 of the Evidence Act in a trial de-novo, disentitles the Claimants/Appellants of any legal admissible evidence in proof of their claims. No matter the substance of that prior evidence before the erstwhile Judge; it must be reintroduced afresh or regularly to warrant any reliance thereon. Being the only but deficient evidence, the claim remained unproved and at the mercy of the uncontroverted counter claim of the Defendants that was eloquently testified in proof. I concur. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EFFECT OF AN UNCHALLENGED EVIDENCE
“I think the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. See: G. S. Pascutto V. Adecentro Nig. Ltd. [1997] 12 SCNJ 1; Alfotrin Ltd. V. The Attorney General of the Federation and Anor. [1996] 12 SCNJ 236; Otuedon & Anor. V. Olughor & Ors, [1997] 7 SCNJ 411; Artra Industries Nig. Ltd. v. The Nigerian Bank for Commerce and Industry [1998] 3 SCNJ 97.”
A situation, therefore, where the Counter-claim was not challenged by the Claimants, who are the Appellants herein, the Court below, therefore had no choice other than to give judgment rightly in favour of the Counter claimants who are the Respondent’s herein. Consequently, this Appeal fails and it is accordingly dismissed. There shall be cost of N100,000.00 in favour of the Respondents and against the Appellants.PER FREDERICK OZIAKPONO OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Edo State, Nigeria, sitting at the Benin Judicial Division, Benin City Edo State, (hereinafter referred to as: “the Court below”) delivered on the 22th day of February, 2019 Coram: M. N. ASEMOTA, J. wherein the Court gave judgment in favour of the Respondents and dismissed the case of the Appellants.
The brief fact of this case is that the Claimants, who are now Appellants, herein and the 1st Respondent are all children of late Pa. Benjamin Omorogbe Bazuaye who died intestate on the 27th March, 1987. The 2nd Respondent was at the time material to this case, the Okaegbe (family head) of Emehi Family to which all the parties belong. After the demise of Pa. Benjamin Omorogbe Bazuaye the Children headed by the 1st Respondent performed the final burial rites in accordance with Benin Native Law and Custom. In March, 2009 the Appellants as claimants took out a Writ of Summons against the 1st and 2nd Respondents seeking to perpetually restrain the duo from interfering with the properties of their late father. They also sought an order of Court compelling the 1st and 2nd Respondents to call a meeting of the family in order to share their father’s properties – See Pages 6 – 7 of the records. Consequent upon the Writ of Summons the Appellants filed their Statement of Claim – See Pages 27 -30 of record. However, the Appellants later brought a motion to join their two other siblings Mr. Iyawe and Mr. Efosa Bazuaye as defendants in the suit. The application was granted. See pages 31 – 32 of records.
The case went on trial with the extant Amended Statement of Claim at pages 113 – 117 of the records. The Joint Statement of Defence of the 1st and 2nd Respondents is at pages 75 – 82, which defence incorporated a Counter-Claim. While the suit was before N. A. IMOKHUEDE, J, the 1st and 3rd Appellants as Claimants testified by relying on their written deposition. The trial, however, had to start de novo before M. N. ASEMOTA, J on the 26th February, 2018, when N. A. IMOKHUEDE, J was transferred to another Judicial Division. The 3rd Appellant later testified as CW1 and the evidence of 1st Appellant given before N. A. IMOKHUEDE, J was tendered through CW1. This was admitted as Exhibit “A” despite opposition from the Defence Counsel.
ISSUES FOR DETERMINATION:
The Appellants nominated a total of five (5) issues for the determination of this Appeal, thus:
1. Whether it was right for the lower Court to use against the appellants an answer to a question under cross examination when the facts of the said answer had not been specifically pleaded?
2. Did the Appellants (as claimants) prove their case before the lower Court?
3. When a statement of claim or defence is amended does it become useless to a trial Court when such pleading had not been struck out?
4. Did the respondents (as defendants) prove their counter claim to be entitled to the judgment of the lower Court?
5. Was there proper evaluation of the evidence led before the lower Court?
On the part of the Respondents, two (2) issues were nominated for the determination of this Appeal, thus:
1. Did the Claimants/Appellants in law proffer sufficient evidence in proof of their pleadings before the learned trial Judge?
2. Did the Respondent prove their Counter-Claim before the learned trial Court?
Upon a calm and close examination of the issues nominated across board for the determination of this appeal, the intentions of learned Counsel to the parties are clearly displayed. The issues nominated show that the parties are clearly ad idem in being mainly concerned with the issue of proof; whether the Appellant as Claimants in law proffered sufficient evidence in proof of their pleadings before the learned trial Court. While it is to be noted that the Respondent chose to do the same thing as the Appellant, although in a few words, the Respondent nevertheless, succeeded in containing all the issues nominated by the Appellants in just two paragraphs. Subsuming, as it were all the five (5) issues nominated by the Appellant by so doing. That being the position, this Court shall resolve this Appeal based on the two (2) issue nominated by the Respondent. Suffice this to say, Counsel for both sides addressed Court extensively citing a plethora of decided cases in support of their arguments.
The Appellant’s brief of Argument dated the 7th day of October, 2019 was filed on the 8th day of October, 2019. This brief was settled by S. IREDIA OSIFO ESQ. On the part of the Respondent, the brief of Argument was settled by J. O. MOMOH ESQ.,. The Respondent’s brief of Argument dated 28th January, 2021 was filed on the same date. At the hearing of the Appeal on the 13th day of October, 2021 learned Counsel adopted the briefs of their clients and urged the Court to decide the Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANT:
ISSUE ONE:
Whether it was right for the lower Court to use against the appellants an answer to a question under cross examination when the facts of the said answer had not been specifically pleaded?
In arguing this issue, learned Appellant’s Counsel contended that one of the main reasons the lower Court dismissed the case of the Appellants as Claimants was that the 3rd Appellant (3rd claimant) gave an answer to a question under cross-examination, which appeared to have confirmed the case of the Respondents (as defendants) that their late father’s estate had been shared/distributed. In this connection, Counsel referred to the observation of the learned trial Court at page 12 of the judgment at lines 8-21 (page 200 of the records) and further contended that the said testimony elicited under cross-examination is incisive and that the above piece of evidence was like a nail in the coffin of the claimants’ case. Counsel argued that if as admitted by the 3rd claimant (CW1) that he has benefited from the estate, why the contention that the estate had not been shared. Counsel submitted that the law is trite that a party cannot approbate and reprobate.
Learned Counsel further contended that evidence elicited from a witness under cross-examination goes to no issue except the facts of such evidence have been pleaded. Counsel next queried whether the facts of the answer elicited under cross examination were pleaded? In his answers he stated that those facts were not pleaded in the amended statement of claim filed by the Appellants and were also not pleaded by the Respondents (as defendants) in their amended statement of defence at pages 76-82 of the records. Learned Counsel referred this Court to paragraph 4 of the amended statement of defence at page 75 of the records, where the Respondents pleaded:
“that all the children (without exception) of the late Pa. Benjamin Omorogbe Bazuaye did benefit from the sharing of their late father’s estate albeit, in varying proportions in line with the wisdom and discretion of the entire family (in this case, Egbe Emehi) and relying on the Bini Native Law and Customs for all decisions and distributions effected”.
Having regard to the state of the pleading of the defendants (now Respondents) learned Counsel contended that from the facts, the so-called admission by the 3rd Appellant cannot be said to have been pleaded and he went ahead and gave his reason for this contention. Counsel argued that this suit was commenced in 2009 when the 1988 Civil Procedure Rules of the defunct Bendel State applied. As a result of this position, Counsel referred Court to Order 25 Rule 4(i) of the said Civil Procedure Rules provides, thus:
“4(i) Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively”.
On the interpretation of the foregoing provision of Order 25 Rules 4(i) of the 1988 Rules, Counsel cited the case of EGHAREVBA vs. ORUONGHAE (2001) 11 NWLR (PT. 724) 318 at 335 and submitted that paragraph 4 of the Respondents’ amended statement of defence at pages 75-80 is a general traverse, which did not have any particulars to contradict the case of the Appellants. Counsel further contended that the learned trial judge at page 13 lines 4-5 of his judgment (page 201 of the records) remarked thus:-
“A party who testifies otherwise than is pleaded is tantamount to making a case contrary to his pleading which is not permitted.”
Against the backdrop of the foregoing, Counsel submitted that in a situation such as this the defendants should proceed to plead the houses, land, moneys, vehicles or those other things that were shared to the 3rd Appellant. After all, he said, that the 3rd Appellant also stated under cross-examination at page 9 lines 1-2 of the records of proceedings (page 157 of the records) that he was in the employment of his father as a manager before his father died. See also NNPC vs. SELE (2004) 5 NWLR (PT. 866) 370 at 412-413.
Learned Counsel therefore submitted that the particulars of what was shared to the 3rd Appellant must be expressly pleaded and that a general traverse as was done in paragraphs 4 of the amended statement of defence at page 75 of the records does not meet the requirements of the law on pleadings. Counsel therefore submitted that the particulars of what was shared to the Appellants that constitute material facts, must be pleaded by the defendants, otherwise it would be an exercise in futility. See OKAGBUE vs. ROMAINE (1982) 5 SC. 133. Counsel urged this Court to resolve this issue in favour of the Appellants.
ISSUE TWO:
Did the Appellants (as Claimants) prove their case before the lower Court?
The contention of learned Appellant’s Counsel is that the present appeal arose from the proceedings before two Courts. One was before Hon. Justice N.A. Imoukhuede and the second was before Hon. Justice M. N. Asemota who concluded and gave final judgment in the case from which the present appeal emanated. Counsel further contended that the proceedings before Hon. Justice Imoukhuede were tendered by 3rd Appellant before Hon. Justice Asemota who admitted same as Exhibit (A). Counsel also stated that when the case started de-novo before Hon. Justice Asemota the 1st Appellant who gave evidence before Hon. Justice Imoukhuede was in the hospital in the United State of America and that Counsel for the Appellants at the lower Court in his wisdom, called the 3rd Appellant to tender the certified true copy of the evidence of 1st Appellant before Hon. Justice Asemota.
Counsel therefore submitted that the evidence given by 1st Appellant was therefore never contradicted because she was not cross-examined by the Respondents or their Counsel as they were consistently absent from Court in spite of the fact that they were consistently served with hearing notices issued by the Court. See page 9 lines 15-17 of the judgment at page 197 of the records.
Counsel said that initially when the action was filed at the lower Court by the Appellants, the 1st & 2nd Respondents (as 1st & 2nd defendants in the lower Courts) engaged the services of a lawyer, who filed a memorandum of appearance for them on 26th June, 2009. The lawyer also filed for them a joint statement of defence at pages 41- 47 of the records.
Counsel further stated that the Respondents (as defendants), thereafter went to sleep and that when the defendants (Respondents) did not show up in Court the Claimants/Appellants Counsel filed a motion for judgment. See pages 121-125 of the records and that under those circumstances it cannot be said that the evidence of the Appellants was in any way contradicted by the Respondents. Counsel further told this Court that before Hon. Justice Asemota, it was only the 3rd Appellant who gave evidence and that his evidence was limited to tendering the records of proceedings before Hon. Justice Imoukhuede and that the only thing that was novel was the so-called admission by the 3rd Appellant that:-
“I have benefited from the estate of my late father. I would not know if the 2nd Claimant has benefited from our late father’s estate”.
The further contention of learned Counsel is that the only doubt created in the minds of the learned trial judge was as a result of the improper evaluation of the evidence led in the case. Counsel contended that Exhibit ‘A’ tendered in the proceedings before Hon. Justice Imoukhuede made it clear that the 1st Respondent rejected the so-called sharing exercise carried out under the Chairmanship of Mr. Billy Bazuaye sometime in the year 1990, three years after the death of their father and in the absence of the 1st Respondent. The letter is at page 17 of the records. Counsel stated that one of the reasons 1st Respondent gave was that the sharing was done in his absence and that under Benin Customary Law 1st Respondent’s absence alone without more, nullifies the exercise, assuming there was any sharing of the estate. Again, Counsel drew attention to another letter written by 1st Respondent at page 106 of the records dated 14-05-2007 to the Okaegbe of the family regarding the purported sharing of the estate of their late father. Counsel also told Court that that letter was tendered before Hon. Justice Imoukhuede as Exhibit B, and several other letters written by the 1st Respondent regarding the sharing of the estate of their late father.
Counsel therefore submitted that if the learned trial judge took pains to evaluate all these documents tendered before him he would not have had any difficulty coming to the conclusion that the Appellants proved their case on the balance of probabilities as required by law.
Counsel argued that what appears, in the Appellants’ opinion, to be the reason for the confusion of the lower Court is the fact that the Court did not realise that Exhibit ‘A’ the record of proceedings before him Hon. Justice N. A. Imoukhuede had become evidence before which evidence he ought to have taken into consideration in evaluating the evidence of the parties before him. He added that if the Court had looked at the proceedings in Exhibit ‘A’ he would not have come to the conclusion that he eventually did in his final judgment.
According to Counsel, as at the time the respondents in the case made up their minds to re-appear in this case to defend the allegations of the Appellants, the Appellants (as claimants) had given evidence and closed their case. Counsel also stated that the cross-examination of the 3rd Appellant is not the same thing as cross-examination of the 1st Appellant who was the 1st Claimant in the lower Court.
Learned Counsel further submitted that during her testimony the 1st Claimant tendered two important documents and that these documents are at pages 17 and 106 of the records. Again, that both documents were written by the 1st Respondent. Counsel therefore contended that with these two documents tendered, he could understand how the learned trial judge could have come to the conclusion that the appellants did not prove their case, rather it was the Respondents that proved their case. Counsel enthused that the effect of failure to cross-examine a witness particularly on material points were addressed in the cases of (1) ALLI vs. THE STATE (2012) 7 NWLR (PT. 1299) 209 AT 288 C- (2) NWOBODO vs. ONOH (1984) 1 SCNLR 1. Counsel finally urged this Court to resolve issue two in favour of the Appellant.
ISSUE THREE:
When a statement of claim or defence is amended does it become useless to a trial Court when such pleading had not been struck out?
In arguing this issue, learned Counsel contended that a pleading that is amended does not cease to be part of the records of the Court except the amended pleading is struck out, but that as long as a document forms part of the records of the Court, the Court is entitled to look at it if it will assist the Court in evaluating the evidence in the case before it. See AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PART 502) 130. The submission of Counsel is that the learned trial judge should have looked at the amended pleadings of the Appellants in the conduct of the case before him rather than regarding it as no longer part of the case before him. He said that the amended pleading certainly will not be part of the materials the Court needed to write the judgment, but that it is intended in some way to influence it and ought not to be regarded as a document that has been discarded. Counsel finally urged this Court to resolve this issue in favour of the Appellants and allow the Appeal and set aside the judgment of the Court below.
RESPONDENTS:
ISSUE ONE:
Did the Claimants/Appellants in law proffer sufficient evidence in proof of their pleadings before the learned trial Judge?
In arguing this issue, learned Respondent’s Counsel answered the question under this issue in the negative and contended that the only evidence adduced by the Claimants, now Appellants in this Appeal is the evidence of CW1, Mr. Uyi Bazuaye. Counsel referred Court to page 97 of the record and further contended that there is nothing in the evidence of CW1 to sustain the claim of the Claimants.
Counsel further contended that the evidence of 1st Claimant did not testify legally not before the Court that gave judgment in this case. Counsel argued that the case started de novo before Hon. Justice M. N. Asemota and referred Court to page 153 lines 7 to 9 of the record. He enthused that Trial de novo means that there was no trial before. Counsel cited the cases of FIRST BANK OF NIGERIA PLC vs. E. D. TSOKWA (2004) 5 NWLR (PT. 866) 271 @ 306 PARAGRAPH C-D; BANKOLE vs. TELEREMOH NIG. LTD (1995) 2 NWLR (PT. 380) @ 726 RATIO 6.
As far as Counsel was concerned, the 1st Claimant was expected to testify but that she did not and that her testimony cannot be adopted by CW1 and used as evidence in this matter before the new judge. Counsel cited the cases of EGHOBAMIEN vs. FMBN (2002) 7 SC (PT. 1) 143 and FRANCIS SHANU & ANOR vs. AFRIBANK NIGERIA PLC (2002) 6 SC (PT. 11) 135. Counsel stated that in these cases, the Supreme Court held that it was wrong to write judgment on evidence recorded by another Judge. Counsel therefore urged this Court to dismiss this appeal as the Claimants have not proved their case or any case before the learned trial judge.
ISSUE TWO:
Did the Respondent prove their Counter-Claim before the learned trial Court?
In arguing this issue, learned Counsel contended that the Defendants/Counter-Claimants who are Respondents proved their claim before the learned trial judge by credible evidence by tendering Exhibit “B” on the Distribution of the Estate by the family. As far as Counsel is concerned, this piece of evidence was not challenged. Counsel said that the Secretary of the family also testified that Exhibit “B” emanated from the Emehi family as it was signed by the Okaegbe (family head), the Secretary and some other members of the family. Counsel said that the Counter-claim was not challenged by the Claimants and that the trial judge rightly gave Judgment in favour of the Counter Claimants. Counsel urged this Court to dismiss this Appeal and affirm the judgment of the Court below.
RESOLUTION OF APPEAL
The most important aspects of the fact of this Appeal is that the suit, while at the Court below, before N. A. IMOKHUEDE, J had to be transferred to another Judge, the said M. N. ASEMOTA, J. for the case to be started de novo. It is important to note that this development took place after the 1st and 3rd Appellants as Claimants had testified in the previous Court, by relying on their written depositions on oath. The trial, however, had to start de novo before M. N. ASEMOTA, J on the 26th February, 2018, when N. A. IMOKHUEDE, J was transferred to another Judicial Division. The 3rd Appellant later testified as CW1 and the evidence of the 1st Appellant given before N. A. IMOKHUEDE, J was tendered through CW1. This was admitted as Exhibit “A” despite opposition from the Defence Counsel.
The question that readily begs for an answer at this stage is: what effect does a case commenced de novo have on previous hearing and or evidence taken on by the trial Court? The settled position of the law is that an Order for a retrial or a new trial or trial de novo or a venire de novo is an Order that the whole case should be retried or tried de novo or tried anew as if no trial whatever had been had in the first instance. See the case of KAJUBO vs. STATE (1988) LPELR- 1646 SC. See also the case of BABATUNDE vs. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD & ANOR. (2007) LPELR- 698 SC, where the apex Court per MUHHAMAD, JSC had this to say on the subject:
“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Black’s Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered…new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.” See the case of Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G. This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo v. The State (supra): “The expressions “anew trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given. The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance. See: Kajubo v. The State (supra). In 1978 this Court per Idigbe, JSC; in the case of Fadiora v. Gbadebo (1978) NSCL (Vol. 1) 121; (1978) 3 SC 219 had cause to make the following observation. “We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”
It is therefore rather strange that the Appellant herein, after calling a witness, the CW1, one Mr. Uyi Bazuaye whose evidence happens to be the only evidence adduced by the Claimants, now Appellants still contended that they adduced sufficient at the Court below in proof of their case. The said evidence of the CW1 is pasted at page 97 of the record and upon a careful and calm examination of the said piece of evidence seem to show that the said piece of evidence is literally, so to speak empty as there is nothing in the evidence of CW1 to sustain the claim of the Claimants.
It is to be noted that the evidence of the 1st Claimant, legally so to speak, was not made before the Court that gave judgment in this case. The case having commenced de novo, it is to be taken that with the old trial, “all old things have passed away” in the same manner as prescribed in the Scriptural injunction of 2 Corinthians 5:17. It would therefore be unthinkable to expect a different result when the Claimants had taken a back seat of an unmerited relaxation just in their minds they marshaled what they had considered sufficient evidence before a previous trial. The trial de novo simply connotes a fresh trial requiring the production of all that transpired in the previous trial anew: short and simply, as a trial de novo simply means that there was no trial before the present one. See cases of FIRST BANK OF NIGERIA PLC vs. E. D. TSOKWA (2004) 5 NWLR (PT. 866) 271 @ 306 PARAGRAPH C-D; BANKOLE vs. TELEREMOH NIG. LTD (1995) 2 NWLR (PT. 380) @ 726 RATIO 6.
What was expected of the 1st Claimant was to have physically appeared before the new Court of trial and to have given his evidence again rather than relying on having the evidence given by the 1st Claimant tendered and adopted by the CW1 and used as evidence in the fresh matter before the new judge. See the cases of EGHOBAMIEN vs. FMBN (2002) 7 SC (PT. 1) 143 and FRANCIS SHANU & ANOR vs. AFRIBANK NIGERIA PLC (2002) 6 SC (PT. 11) 135, where the apex Court per OGWUEGBU, JSC had this to say on the subject:
“Section 34(1) of the Evidence Act provides: “34(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable: Provided:- (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” Evidence given in a previous proceeding is relevant and admissible under the above subsection in proof of the facts asserted in that evidence; (a) if the witness is dead; (b) cannot be found; (c) is incapable of giving evidence; (d) is kept out of the way by the other party; or (e) when his presence cannot be obtained without amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable. For the evidence of a witness in one judicial proceeding to be deemed relevant in a subsequent proceeding, the evidence must have been given on oath and will not be applicable where the witness is alive and present in Court.”
The settled position of the law is that it is procedurally wrong for a judgment or any other decision of Court to be written on the evidence recorded by another judge.
That settles that issue. In the meantime, while the Appellant strenuously sought to establish its case in a new trial before another judge by tendering and seeking to adopt and relying on evidence given in a previous trial under a trial de novo arrangement, the Respondents on the other hand, as Defendants/Counter claimants before the new trial advisedly, busied themselves productively by marshalling credible evidence consisting in the tendering of Exhibit “B” on the distribution of the Estate by the family. As far as the records are concerned, this piece of evidence remained unchallenged, more so, the Family Secretary in his testimony before the Court said that the said Exhibit “B” emanated from the Emehi family as it was signed by the Okaegbe (family head); the Secretary and some other members of the family. In the case of KOPEK CONSTRUCTION LTD vs. EKISOLA (2010) LPELR-1703 SC, the apex Court per MUHAMMAD, JSC had this to say on the subject:
“I think the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. See: G. S. Pascutto V. Adecentro Nig. Ltd. [1997] 12 SCNJ 1; Alfotrin Ltd. V. The Attorney General of the Federation and Anor. [1996] 12 SCNJ 236; Otuedon & Anor. V. Olughor & Ors, [1997] 7 SCNJ 411; Artra Industries Nig. Ltd. v. The Nigerian Bank for Commerce and Industry [1998] 3 SCNJ 97.”
A situation, therefore, where the Counter-claim was not challenged by the Claimants, who are the Appellants herein, the Court below, therefore had no choice other than to give judgment rightly in favour of the Counter claimants who are the Respondent’s herein. Consequently, this Appeal fails and it is accordingly dismissed. There shall be cost of N100,000.00 in favour of the Respondents and against the Appellants.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I, having read in draft the led Judgment rendered by my learned brother, Frederick O. Oho, JCA agree that this appeal has no merit.
The adoption and reliance on the Evidence led in a previous trial without due compliance with the Section 34 of the Evidence Act in a trial de-novo, disentitles the Claimants/Appellants of any legal admissible evidence in proof of their claims. No matter the substance of that prior evidence before the erstwhile Judge; it must be reintroduced afresh or regularly to warrant any reliance thereon. Being the only but deficient evidence, the claim remained unproved and at the mercy of the uncontroverted counter claim of the Defendants that was eloquently testified in proof. I concur.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance a draft copy of the Judgment delivered by my learned Brother FREDERICK O. OHO JCA. My lord has painstakingly and thoroughly dealt with the issues in this Appeal. I have nothing more to add. This Appeal is unmeritorious and is hereby dismissed by me. I abide by the consequential orders.
Appearances:
S. IREDIA OSIFO, ESQ. For Appellant(s)
J. O. MOMOH, ESQ. For Respondent(s)
