USANG IKPI USANG & ORS v. USANG BASSEY OKIA & ANOR
(2018)LCN/11811(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/C/319/2015
RATIO
COURT AND PROCEDURE: TRIAL DE NOVO
“It is well established that to commence trial de novo means a new hearing of a matter, conducted as if the original hearing had not taken place. See Blacks Law Dictionary, 7TH Edition: OBIUWEUBI VS. CBN (2011) 7 NWLR (PT. 1247), 465; KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721. In the case of BABATUNDE VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. & ORS. (2007) 13 NWLR (PT. 1050) 113, My Lord I T. Muhammad, JSC explained the meaning of trial de novo as follows: ”The Latin maxim ‘de novo’ connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’, etc. in the words of the authors of Blacks 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 VS. MAIRUWA (1996) 8 NWLR (PT. 467) 425 @ 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 VS. THE STATE (supra): ‘The expressions ‘a new 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 VS. THE STATE (supra). In 1978 this Court per Idigbe, JSC, in the case of FADIORA VS. 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”.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. USANG IKPI USANG
2. OBONGHA USANG OFOR
3. BASEY IGIRI OGWA
4. BASSEY IBOR ENI
5. SAM OFOR EFOLI
6. BENEDICT OFEM BASSEY
7. EGU IBOR ENI
8. ETIM USANG OFOR
9. EMENYI JOHN – Appellant(s)
AND
1. USANG BASSEY OKIA
2. IKPI BASSEY OKIA
(For themselves and on behalf of members of Akpama Ekpa
Paternal family of Kotani Unit, Ekori, Afrekpe) – Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Cross River State in Suit No. HUG/16/2001 delivered on the 8th day of April, 2014 by E. E. Ita, J. The Appellants were the Claimants while the Respondents were the Defendants. The Court below heard the claim and at the end entered judgment for the Respondents. Aggrieved by the decision, the Appellants filed a notice of appeal on the 23rd day of June, 2014.
The Defendants now Respondents filed a notice of Cross-appeal on 14th November, 2017. The Appellants compiled and transmitted the record of appeal on 30th December, 2016 but it was deemed properly transmitted and served on 10th January, 2017.
The Appellants filed their Appellants brief on 13th February, 2017 while the Respondents Cross-Appellants filed their Respondents/Cross-Appellants brief on 10th November, 2017 but deemed properly filed and served on 28th November, 2017. The Appellants filed their Cross-Respondents brief of argument on 12th February, 2018 but deemed properly filed and served on 21st April, 2018.
At the hearing of the appeal the Appellants adopted their brief of argument and urged the Court to allow the appeal.
The Respondents/Cross-Appellants adopted their brief of argument and urged the Court to dismiss the appeal and allow their cross-appeal.
The law is well settled that a cross-appeal is independent of the main appeal and its hearing can be done even if the main appeal is determined. But for convenience it is the practice to hear first the appeal before the cross-appeal. I shall therefore hear the appeal first in this case.
The Appellants framed four issues for determination. These issues are expressed as follows:
1. To have relied upon and employed as the determinant of the case at the trial the default judgment in Exhibit 11 that had been set aside by the ruling and orders in Exhibit 5, whether the trial Judge was not misdirected and his judgment perverse? (Formulated from Grounds 5).
2. Whether it was apt for the trial Court to suo motu set aside the order made with the consent of the parties to adopt and use previous evidence led by PW2 without the trial being commenced de novo within the contemplation of Order 31 Rule 19 of the High Court (Civil Procedure) Rules 2008, and then refuse to act on that evidence? (Formulated from Grounds 3).
3. In the face of the parties’ adoption of the procedure/proceedings in Exhibit 8 (previous evidence) and as a Court of concomitant powers and jurisdiction, whether the trial Court could review and declare as ‘clearly irregular’ the proceedings of Ikpeme and Edem JJ. when to do so was to sit in appeal on the proceedings? (Formulated from Grounds 4).
4. The evidence on record properly evaluated; the trial Court’s holding that the Claimants established the fundamental elements in prove of title and the Court’s manifest rejection of the defence in that respect borne in mind, whether the Appellants were not entitled to judgment? (Formulated from Grounds 1, 2, 6 and 7).
Four issues were also distilled for consideration by the Respondents/Cross-Appellants. These issues are listed as follows:
01 Whether considering the entire judgment of the trial Court, it would be right to claim that the trial Court relied and employed the judgment in Exhibit 11 as the determinant in arriving at its decision in this case and if yes whether it was wrong to so do.
02 Whether the trial Court was right when it refused to accept evaluate and rely upon an entirely wrong and unlawful process and procedure adopted by counsel by tendering previous evidence taken by two different judges in this case in deciding the case.
03 Whether it amounts to sitting on appeal over the previous proceedings of Ikpeme and Edem JJ. when the trial Court refused to accept and act on the previous evidence taken by Ikpeme and Edem JJ. and describing same as irregular and cannot be used in considering and deciding this case.
04 Whether on the evidence presented by parties in this case, the Appellants did proved (sic) the essential or fundamental requirements of their claim and exclusive ownership of the various pieces or parcels of land in dispute in this case.
The Respondents/Cross-Appellants in their brief raised a preliminary objection in which they contended that:
1. The Appellants stated no particulars to grounds 2, 6 & 7 of their notice of appeal as required in law hence they are incompetent and should be struck out. The law is that grounds of appeal that allege misdirection or error must state the particulars (see ABUBAKAR VS. WAZIRI (2008) 35 NSCQR P. 339 & Order 6 Rule 2(2) Court of Appeal Rules).
2. Ground 2 is an omnibus ground of appeal not known to civil cases as the known method of couching an omnibus ground in civil cases is, ”The judgment is against the weight of evidence” (See AMGBARE VS. SYLVA (2009) 1 NWLR (PT. 1121) P. 1).
3. Ground 1, an omnibus ground cannot sustain issue number (4) four said to be partly formulated from it by the Appellants. We therefore urge the honourable Court to strike out the said grounds and issue number four (4) formulated thereon. An incompetent ground of appeal cannot give birth to a competent issue for determination. Even where an issue for determination is raised from a group of grounds of appeal, (as it is the case with issue Number 4 of the Appellants) if even one of such grounds of appeal is incompetent, the issue so raised thereon is also incompetent. (See ANYAOHA VS. OBIOHA (2014) 6 NWLR (PT. 1404) P. 445 @ 469 & 470).
This objection raised is not directed at the appeal itself with the view of ending the appeal in limine.
The approved channel for this type of objection is not by raising a preliminary objection but through a motion on notice. Since this was not done, the preliminary objection before the Court complaining about some grounds of appeal is incompetent and must here now be and it is hereby struck out. The appeal is therefore now set down for hearing.
The issues as framed by the Respondents though differently worded have the same tenor and content with the four issues framed by the Appellants. It is very safe and sound to adopt any and the issues raised by the parties would be adequately catered for. For convenience however, I will flag the consideration of this appeal with the issues raised as couched by the Respondents.
ISSUE ONE
This issue is whether considering the judgment of the trial Court, it would be right to claim that the trial Court relied and employed the judgment in Exhibit 11 as the determinant in its decision and whether doing that was wrong.
The learned counsel for the Appellant canvassed on this issue that Exhibit 11 relied upon by the Court below had been set aside. He referred to pages 250 to 252 of the Record of Appeal where he said the default judgment in Exhibit 11 was set aside by the 27th September, 1999 proceedings of the same District Court endorsed in evidence as Exhibit 5. He copied out from Exhibit 5 the record of the District Court for 27th September, 1999. By this record, the District Court had set aside the proceedings and the judgment delivered on 8th September, 1999. This Exhibit 11 which was set aside was relied upon by the Court below.
The Court below held as recorded at page 325 of the record of appeal as follows:
In this case the Claimants are again claiming title to 5 of the lands declared in Exhibit 11 to belong to the Defendants (Kotani family) to wit: Lofiboh/Ebalati, Ukpawen, Patapata, Eboliti and Emanti. There being nothing before me showing that the judgment in Exhibit 11 was over turned I find and hold that Lefiboh, Ukpawen, Patapata, Ebonti and Emanti lands belongs to the Defendants (Kotani family) by Exhibit 11.
In the end result I enter judgment herein as follows:
1. BY Exhibits 11 and 15 in these proceedings the 14 parcels of land in dispute in this case belong to Kotani Paternal family of Afrekpe and not the Claimants.
Their claim for title to the 15 parcels of land fail and are is hereby dismissed.
2. The claim for title having failed claims 2 and 3 for injunction and damages for trespass also fail and are hereby dismissed.
3. I assess and award cost of this action at N50,000 against the Claimants who despite Exhibit 11 took out this action.
The learned counsel for the Appellant in this respect canvassed that the trial Court was misdirected in this finding and holding. That this led to a miscarriage of justice with the effect that, the resultant judgment cannot stand for being perverse. He relied on Onu, JSC quoting with approval the pronouncement of Omo, JCA (as he then was) put this position of the law in the case of OSHO VS. APE (1998) 5 SCNJ 139 @ 155 (paras. 30-35).
”… a judge misdirects himself if he misconceives the issues or summaries the evidence inadequately or incorrectly, or makes a mistake on the law”. See also OTUEDON VS. OLUGHOR (1997) 7 SCNJ 411 @ 437.
He noted that, even the indifference with which the Respondents alluded in their pleadings to the proceeding of the Nko/Inyima District Court coded as Suit No. NIDC/5/99 leaves echoes of legal queries. See paragraph 20 of the further amended statement of defence replicated at page 50 of the appeal records. Learned counsel canvassed that the use to which such a judgment (in the con seen by the trial Court) would have been applied is to act as estoppel per rem judicatam against the proceedings on appeal. See LADIMEJI VS. SALAMI (1998) 4 SCNJ 1 @ 14. In the instant case the counsel opined that outside the reference to it, exhibit 11 was not pleaded for any purpose and effect for the obvious reason that it does not exist.
He therefore urged the Court to resolve issue No. 1 in favour of the Appellants.
The Respondent/Cross-Appellants in response canvassed that the said Exhibit 11 listed (13) thirteen pieces or parcels of land that were in dispute in that Case No. NIDC/5/99 as Lefibo, Ntatami-se, Epono, Ukpawen, Ofidem, Patapata, Nkpogom, Eboliti, Letana Obose, Kenina-yomo, Emanti, Yeyou and Akpetuapo as belonging to the Respondents not the Appellant. That parties are at liberty to call the Land in dispute in whatever names and this does not matter. (See NWOKOROBIA VS. NWOGU (2009) 15 WRN P. @ 8).
That a closer look at this list of lands as stated above would show clearly that they are the same pieces or parcels of land also listed by the Appellants as the ones they are claiming in this case with some minor discrepancies in the spelling of the names due to the fact that they are Yakurr names whose spellings vary from place to place and persons to persons.
That the trial Court found and held that the Nko/Inyima District Court earlier awarded of the title of the 5 parcels of land in dispute to the Respondents only strengthened his findings that the denial by the Appellants in Court that there was Kotani paternal family was not true or correct and that there was in existence Kotani paternal family even before 1999, and not that it solely relied on the said judgment in Exhibit 11 in reaching its decision in the case.
The Appellants Counsel’s reasons for arguing that the trial Court was wrong in law to have relied on the said Exhibit 11 in giving its judgment is that, there was Exhibit 5, a decision of the same Nko/Inyima District Court setting aside its judgment of 8th September, 1999 which it gave in favour of the Respondents.
The learned counsel contended that the ruling purporting to set aside the said ruling of the District Court was not tendered in this case before Hon. Justice Eyo Ita. That it was rather tendered before Hon. Justice A. B. Ikpeme who heard this case but did not conclude same. (See page 252 lines 1 and 2 record of appeal). That the trial Court was right to hold that there was nothing before it to show that the District Court judgment in NIDC/5/99 was set aside. He urged the Court to resolve this issue in favour of the Respondent and to dismiss this appeal.
On this issue, arguments have been proffered on the issue of the reliance on Exhibit 11. Exhibit 11 is the record of judgment said to be delivered by the Nko/Inyima District Court. The judgment was a default judgment and it was said to be set aside by the same Court and the matter was re-opened but adjourned sine die. This was not doubted by the parties. The argument of the learned counsel for the Respondent was that the record was not tendered in Court before Eyo Ita, J that eventually heard this case to judgment but was earlier tendered before A. B. Ikpeme, J who earlier heard the case before Ita, J took over the case and began to hear it de novo. The issue is therefore clear that the judgment of the said District Court had earlier been set aside by the District Court which handed down the default judgment. The implication of this is that Exhibit 11 is certain and clear a non-existent decision.
This is because to set aside is to annul an earlier order by another order of Court. The moment the District Court set aside its default judgment and set down the case for hearing on merit, there is no merit or benefit derivable from an order that has been set aside. The order may be inscribed in an indelible ink or freshly left on the parchment of paper in which it was printed but the pronouncement of the District Court setting aside the judgment is the canon that snuffs out validity and efficacy from the order earlier given by the said Court.
It sounds wile in an argument that the order annulling the judgment was tendered before the previous Judge that started the case and not before the Judge that heard the case to judgment. What is significant and consequential is the fact that Exhibit 11 having been set aside cannot be available as an order to be enforced or given value to by any Court or any authority. If the Court dealing with an order earlier set aside was not informed of such a situation fact still remains that it cannot be blamed for it but the content of what the Court gives out using that annulled judgment cannot be said to have any viscosity because no one can give what he does not have – nemo dat quod non habet. The District Court in Exhibit 11 had before this case annulled it and so it remains dead.
In the instant case, the Court below based its decision majorly on a judgment that was annulled. To this extent the Court below was obviously misdirected and this cannot be defended. This issue must be and it is hereby resolved in favour of the Appellants.
ISSUES TWO AND THREE
These issues are whether the trial Court was right when it refused to accept, evaluate and rely upon an entirely wrong and unlawful process and procedure adopted by counsel by tendering previous evidence taken by two different Judges in the case; and whether it amounts to sitting on appeal over previous proceedings of Ikpeme and Edem, JJ when the trial Court refused to accept and act on the previous evidence taken by Ikpeme and Edem, JJ.
The learned counsel for the Appellants canvassed in his brief that in very clear terms the rules of Court make provision and vest discretion for a Court to proceed with the hearing of a cause or matter using previous evidence in the same cause or matter without commencing the trial de novo. This is in Order 31 Rule 19 of the High Court (Civil Procedure) Rules, 2008 which is couched thus:
”Subject to the provisions of Section 34 of the Evidence Act, all evidence taken at the hearing or trial of any cause of matter may be used in any subsequent proceedings in the same cause or matter without the need for the trial to be commenced de novo”.
The learned counsel canvassed that the trial Court followed the Rules of Court to hear the suit in the manner it was heard and he said there was injustice occasioned. He contended that upon the error in the trial Court’s decision not to ‘make use of Exhibit 8′ (i.e. the entire evidence of CW2) as played out here above and the injustice thereby occasioned on the Appellants when for the purpose of the trial Court’s judgment they were without that evidence and never given the opportunity to otherwise re-feature that evidence. He urge the Court to resolve Issue No. 2 in favour of the Appellants.
The Respondents in their own brief canvassed that the trial Court was right when it refused to accept and rely on previous evidence of witnesses taken in previous proceeding wrongly or wrongfully tendered and admitted in evidence in considering and deciding this case. The Respondents canvassed that the evidence in issue was not in line with the Evidence Act and the Rules. That the law gives the Court the duty to receive documentary evidence and also to expunge any wrongly admitted one.
The learned counsel for the Respondents in the brief at page 15 paragraph 4.43 – 4.47 admitted that the provision of the Evidence Act Sections 39 and 46 were not complied with and that they were not in existence. That, I must say, is contradictory since he had earlier in the brief admitted that Sections 39 and 46 of the 2011 Evidence Act replacedSection 34 of the former Evidence Act. Learned counsel further conceded also that all the witnesses were alive at the time of the proceedings in this case. In fact the submission of the learned counsel for the Respondents in the brief was the correct statement of the law. I wish to quote with approval the impressive submission of counsel at page 16 of the Respondents brief. He stated as follows:
In this case all the witnesses were alive at the time of these proceedings. There was no evidence in the record of appeal that shows that any of the condition in Section 39 and 46 of Evidence existed before or during the tendering of the three witnesses? previous evidence. In fact on the day of tendering the previous Statements of Ikpi Bassey Okia in evidence, he was present in Court (See page 311 Line 20 record of appeal).
The Supreme Court in the case of DUROSARO VS. AYORINDE supra Ratio 7 held on where evidence given by a witness in previous proceedings is relevant in subsequent proceedings as follows:
”The law is that evidence of a witness taken in earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross examination and for the purpose only it is not permissible to treat evidence in previous proceeding as one of truth”. (See also ALADE VS. ABORISHADE (1960) SC NLR P. 398, ASUQUO & ANOR. VS. EKANEM & ORS. (1962) 1 ALL NLR P. 530, ARIKU VS. AJIWOGBO (1962) 2 SCNLR P. 364 AND SANYAOLU VS. COKER (1983) 3 SC P. 124).
The Appellants counsel argued that all the documents were admitted in evidence by consent of both parties. The law is that consent of parties or their counsel based on their understanding of the law or opinion to in unism do what is wrong or contrary to the law including agreement to tender documentary evidence in a case contrary to the provisions of the law, does make such unlawful, illegal and wrong act or proceeding right.
The Supreme Court in the case of ALAO VS. AKANO (2005) 20 WRN P. 157 held:
”Where the law declares a document inadmissible, the document cannot be admitted in evidence even where there was no objection or even where the parties consent to its admission (See also ETIM VS. EKPO (1983) 1 SCNLR P. 120)”.
The counsel is absolutely right in these submissions and I endorse them fully as the position of the law on this matter. The learned trial Judge truly failed to apprehend and apply the law in its case. The law is the law and it is the business of the Court to uphold and apply the law at all times.
This case has had a chequered history at the Court below. The record of appeal shows that the case went through I. I. Agube J, (as he then was) E. U. Ofem, J ; F. U. Ilok, J; E. O. Effiong J; A. B. Ikpeme J; M. Edem J, (as he then was) and Eyo E. Ita J, who heard and concluded the case.
The record shows that the case came to Court on 6th day of February 2001. After many applications before the Court, A. B. Ikpeme, J took over the case on 2nd February, 2005 and after some adjournments one Ikpe Bassey Okia testified on 12th December, 2005 as PW1. (See pages 239 – 252 record of appeal).
The said PW1 – Ikpe Bassey Okia gave his evidence in chief orally as the rules of Court were as at that time and he was cross examined after tendering some Exhibits. (See pages 239 – 260 record of appeal).
Before the same Ikpeme J, one Nelson Edem Bassey commenced his evidence in chief as PW2 on 25th May, 2009 and while still giving his evidence in chief, the said A. B. Ikpeme, J was transferred and on 25th March, 2010. Michael Edem, J (as he then was) took over the case.
On 30th April, 2010 Michael Edem, J. who took over the case did not commenced the trial or hearing of the case de novo but continued with the evidence in chief of PW2 from where Ikpeme, J stopped. (See page 280 – 281 record of appeal).
On 22nd June, 2010 the Respondents’ counsel commenced the cross-examination of PW2 and concluded same. (See pages 282 – 283 record of appeal). The Appellants then closed their case. On 28th July, 2010 the Respondents opened their case by fielding Elder Usang Ikpi Usang as DW1. (See pages 285 – 301 record of appeal).
On 24th April, 2013 Eyo Ita, J. took over the case and upon the coming into operation of the new Cross River State High Court (Civil Procedure) Rules 2008 the Respondents were given leave to file the Statements of their witnesses in line with the said Rules (See pages 307 record of appeal). On 24th October, 2013 hearing commence before the said Ita J. after delivering a ruling dismissing the motion filed by the Respondents to further amend their statement of defence on the grounds that the new rules of Court does not allow them to do so. (See pages 309 – 311 record of appeal).
On that same 24th October 2013 particularly at page 312, before E. Ita, J Appellants did not call or recall witnesses, they tendered the CTC of record of the evidence proceedings of the two witnesses they called before the previous judges as PW1 and PW2 in evidence and were admitted by Ita, J and marked Exhibits 7 and 8.
The said Appellants tendered the said CTC of the previous evidence and closed their case. They did not call further witnesses nor tender any exhibits other than the CTC of the previous records of Evidence of the PW1 and PW2 who testified before past Judges. (See page 311 last line and pages 312 lines 1 – 3 record of appeal).
All the challenges manifesting in this case are from the mis-conception of the Rules of the Court below. The Rule is as in Order 31 Rule 19 of the High Court of Cross River State (Civil Procedure) Rules 2008. Order 31 Rule 19 provides:
”Subject to the provision of Section 34 of the Evidence Act, all evidence taken at the hearing or trial of any cause or matter, may be used in any subsequent proceedings in the same cause or matter without the need for the trial to be commenced de novo”.
This Rule of the lower Court cannot stand alone it is subjected to the provision of Section 34 of the then Evidence Act. Section 34 of the old Evidence Act, is now Section 46 of the Evidence Act, 2011. The Extant Law provides:
46 (1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible 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 cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party.
Provided that :
(a) The proceeding was between the same parties or their representatives in interest;
(b) The adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) The questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the Defendant within the meaning of this section.
Then Section 39 of the Act linked with it provides:
39. Statements, whether written or oral of facts in issue or relevant facts made by a person :
(a) who is dead;
(b) who cannot be found;
(c) who has become incapable of giving evidence; or
(d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 40 to 50.
From the community reading of the Rules and the Law connected with this issue, it is necessary to emphasize that the provision of Order 31 Rule 19 of the High Court (Civil Procedures) Cross River State is not an off the shelf kind of provision or ready-made device where one can plug and play. It is a provision that must be applied in sync with the Evidence Act. To my mind, that provision of the rules of the Court below as earlier reproduced is not meant for the Court to depart from the established practice protocol of starting cases inherited by any trial judge denovo.
It is well established that to commence trial de novo means a new hearing of a matter, conducted as if the original hearing had not taken place. See Blacks Law Dictionary, 7TH Edition: OBIUWEUBI VS. CBN (2011) 7 NWLR (PT. 1247), 465; KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721. In the case of BABATUNDE VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. & ORS. (2007) 13 NWLR (PT. 1050) 113, My Lord I T. Muhammad, JSC explained the meaning of trial de novo as follows:
”The Latin maxim ‘de novo’ connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’, etc. in the words of the authors of Blacks 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 VS. MAIRUWA (1996) 8 NWLR (PT. 467) 425 @ 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 VS. THE STATE (supra): ‘The expressions ‘a new 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 VS. THE STATE (supra). In 1978 this Court per Idigbe, JSC, in the case of FADIORA VS. 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”.
In the instant case, Order 31 Rule 19 of the Cross River High Court (Civil Procedure) Rules 2008 gives discretion to the Court to use evidence taken previously in the case or other proceedings subject to the provision of Section 46 of the Extant Evidence Act 2011. Evidence Act, 2011 is a principal legislation and was made by the National Assembly. This Act has specified conditions to be present before using evidence previously taken. The law is careful about this subject because a trial Court it is trite is the Court that has the primary duty of evaluation and ascription of probative value thereto. In this onerous duty the trial Court must have the privilege or opportunity of seeing the witnesses, watching their demeanour and hearing them gives evidence. If this right is not exercised by a judge, he may not be in a position to rightly assess and give correct value to the evidence presented in Court.
Evidence taken behind the back of the judge may not meet the demands of justice. That is what it is essential and mandatory and worthwhile that a trial judge must be the one to hear the oral evidence and conduct the cross-examination and re-examination of a witness giving evidence in court in any matter. The provision in Order 31 Rule 19 as cited above is to cater for the following situations:
1. Where evidence of the witness is needed for the purpose of proving the truth of the facts it states.
2. When the witness cannot be called due to:
a. The fact that the witness is dead;
b. The witness cannot be found;
c. The witness has become incapable of giving evidence;
d. Whose attendance cannot be procured without an amount of delay or expense which is unreasonable; or
e. Due to the fact that the witness is kept out of the way by the adverse party.
From the foregoing, therefore the window of discretion opened in Order 31 Rule 19 of the Rules of the Court below is not to be an easy way out of the responsibility to call up a witness to testify when a fresh judge takes over the hearing of the cases.
The requirement of the law as per the Evidence Act Section 46 proviso is that the:
(1) Previous proceeding must be between the same parties;
(2) Adverse party in the first proceeding had the right and opportunity to cross-examine; and
(3) Questions in issue were substantially the same in the first as in the second proceeding.
The requirements of the law cannot be ignored by the Court as the Court is bound to do justice according to law. In the instant case, there is no foundation laid by the Court below before accepting the records of previous evidence and later rejecting to use them in the determination of the right of the parties. The situation in this case is that the trial Court erred in allowing more than one judge to try the case of the parties. The aged long procedure in our law which is well known is for any judge taking over any part heard case from another judge, to start hearing the case de novo.
Once the judge fails to observe this procedure, he falls short of the expectation of the law in doing justice. In the instant case, the trial judge went into error by not starting the hearing of the case de novo.
He also went into error by accepting record of the evidence taken by another judge, Exhibit 8 without following the law and later came to realization that he could not use that evidence and rejected to consider the evidence while determining the case. There is also reliance on Exhibit 11 – a decision which had been set aside. From the foregoing consideration issues two and three must be resolved in favour of the Appellants and they are accordingly resolved in favour of the Appellants and against the Respondents.
ISSUE FOUR
This issue is whether on the evidence presented by the parties in this case, the Appellants did prove the essential of fundamental requirements of their claim and exclusive ownership of the various pieces or parcels of land in dispute in this case.
The learned counsel for Appellant while addressing this issue canvassed that the Appellants proved their case as required. The Respondents were of the view that the Appellant failed to prove their claim as required having regard to the nature of this case.
In the instant case, this issue as generated is very fundamental. Here in this case, we have been confronted with a serious and devastating irregularity. The learned trial Judge was at the crucial time face to face with the accumulated irregularities that are substantial. A prominent witness for the proof of the claim of the Plaintiff had his evidence messed up because the rules and the law of evidence were not followed. The learned trial Judge at the hearing willingly admitted the previous record comprising the evidence of the PW1. This evidence was taken by two previous judges and none of them concluded the case. He took over the case and continued the hearing from where his predecessors stopped.
He made up his mind to admit record of the evidence given by the CW1 before his other brothers but when he was to consider the evidence to determine the rights of the parties he suddenly discovered that the recording and admission of the said evidence was irregular and refused to utilize the evidence. This no doubt exposed his Lordship as approbating and reprobating which he is not allowed by the law to engage in. Secondly, the decision to admit the evidence was with concurrence of all the parties although parties are not allowed to agree to sabotage the Rules of Court and the law. When he was discarding the evidence he did it solo and did not hear the parties thereby raising the issue of breach of the fundamental right of the parties to fair hearing. The learned trial Judge did not rest the case and re-open it for further hearing.
He foreclosed the Plaintiff from putting in the evidence that is critically valuable for his case. These issues no doubt have to my mind cast a pall of darkness on the justice of this case. The law is certain and settled that it is a public policy expectation that the Court must always ensure that justice is not only done but must be seen to be done in accordance with the law.
The events here have clearly shown that there is a failure of justice and it must be redressed by this Court. The irregularities and lapses itemized in this case cannot in any form be redressed by the Court allowing the slip to pass through. It must be positively addressed and sorted out so that the light of justice can brighten up the dark alleys of the proceeding of the trial Court. The best cure in this case is to order a retrial of the case. In the case of ABDULLAHI MOHAMMED VS. THE STATE (2013) LPELR-19822 (SC) the Supreme Court per Mohammed, JSC gave the principles guiding the Court in making an order for retrial as follows:-
”The law is well settled on the principles governing the order for retrial as outlined by this Court in the leading case on the subject in YESUFU ABODUNDU & ORS. VS. THE QUEEN (1959) 1 NSCC 56 @ 60 where this Court stated : ‘We are of the opinion that, before deciding to order a retrial, this Court must be satisfied ‘ (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in Procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the Proviso to Section 11(1) of the Ordinance; (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant; (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time; (d) that the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant, are not merely trivial; and (e)that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it?. These principles were further reaffirmed by this Court in ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 @ 88”.
This issue as earlier stated is resolved in favour of the Appellant and this Court will accordingly order a retrial.
With this resolution to send the case back for retrial, there is absolutely no need to go into other issues and the cross-appeal. The decision appealed upon and counter-appealed on cannot stand so there is no benefit derivable from it by any of the parties. The cross-appeal by this decision has now become academic and it is hereby discountenanced.
This appeal therefore is hereby allowed. The decision of the Court below in Suit No. HUG/16/2014 is accordingly set aside. The case is remitted back to the Court below to be heard by another Judge of the Court.
No cost awarded.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned brother, S. .J. ADAH, JCA, gave me the privilege of reading the draft of the lead judgment just delivered.
I agree entirely, with his reasoning and conclusion. I adopt as mine the beautiful narrative of the facts of this case as presented in the lead judgment.
Having meticulously dealt with the issues in this appeal, I have no reason to embark on the same journey again.
I abide by the order as to costs in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
The trial was vitiated by fundamental irregularities that cannot be ignored or waived. Although the case has had a somewhat convoluted history, justice cannot be short circuited on that score. For the more detailed reasoning in the lead judgment, I equally find merit in this appeal and I accordingly allow it.
I adopt the consequential orders In the lead judgment.
Appearances:
T. B. Isuwa, Esq.For Appellant(s)
D. B. Arikpo, Esq. for the 1st RespondentFor Respondent(s)
