AYINDE ADEYEMO V. OKUNOLA AROKOPO
In The Supreme Court of Nigeria
On Friday, the 3rd day of June, 1988
SC.184/1985
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
Between
AYINDE ADEYEMO Appellant(s)
AND
OKUNOLA AROKOPO Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The duty of the trial court or president is to consider all the evidence adduced carefully and make findings on them before coming to his judgment. He had the advantage of seeing the witnesses testify and forming an impression about their demeanour so as to come to a decision about their credibility. A court of appeal is deprived of the opportunity of seeing and hearing the witnesses testify. Even if the Court of Appeal judges may have come to a different decision if they were sitting as trial judges, having been deprived of the opportunity of seeing the witnesses and judging their credibility, the Court of Appeal’s duty as an appellate court is to send the case back to the trial Court or the High Court for either the same judge or another judge to rehear the case. See
Mogaji v. Odofin (1978) 4 S.C. 91
Okoye v. Kpajie (1973) N.M.L.R. 84
Fashanu v. Adekoya (1974) 6 S.C. 83
Woluchem v. Gudi (1981) 5 S.C. 291
Onyema Oke v. Amos Eke (1982) 12 S.C. 218
If nothing can be gained by an order for a new trial, an appeal court will retrain from making the order.
Taiwo Okeowo and 2 Ors. v. Mrs. D.A. Migliori & 3 Ors. (1979) 11 S.C. 138 at 201.
An order of retrial is not necessary if an appeal court can, in exercise of its appellate jurisdiction, do justice in the case and bring the litigation to an end. The duty of making findings of fact is essentially the preserve of the trial court.
Egri v. Ukperi (1974) 1 N.M.L.R. 22
An order of retrial is also proper where the trial court failed to resolve vital conflicting evidence on important issues. See Onyema Oke v. Amos Eke & Ors. (1982) 12 S.C. 218 at 237. An order of retrial has the added advantage of giving the parties a second chance to prove their case and get the judge alerted about the loopholes and failings in the previous trial. The judgment and evidence in the previous trial are all swept away. The judgment does not operate as estoppel per rem judicatam and the road to justice is reopened. See Fadiora v. Gbadebo (1978) 3 S.C. 219 at 236.The main reason why the High Court ordered a new trial was because vital pieces of evidence favourable to the plaintiff were not considered. PER OBASEKI, J.S.C.
THE POSITION OF LAW ON AN ORDER OF RETRIAL
A court of appeal is deprived of the opportunity of seeing and hearing the witnesses testify. Even if the Court of Appeal judges may have come to a different decision if they were sitting as trial judges, having been deprived of the opportunity of seeing the witnesses and judging their credibility, the Court of Appeal’s duty as an appellate court is to send the case back to the trial Court or the High Court for either the same judge or another judge to rehear the case. See
Mogaji v. Odofin (1978) 4 S.C. 91
Okoye v. Kpajie (1973) N.M.L.R. 84
Fashanu v. Adekoya (1974) 6 S.C. 83
Woluchem v. Gudi (1981) 5 S.C. 291
Onyema Oke v. Amos Eke (1982) 12 S.C. 218
If nothing can be gained by an order for a new trial, an appeal court will retrain from making the order.
Taiwo Okeowo and 2 Ors. v. Mrs. D.A. Migliori & 3 Ors. (1979) 11 S.C. 138 at 201.
An order of retrial is not necessary if an appeal court can, in exercise of its appellate jurisdiction, do justice in the case and bring the litigation to an end. The duty of making findings of fact is essentially the preserve of the trial court.
Egri v. Ukperi (1974) 1 N.M.L.R. 22
An order of retrial is also proper where the trial court failed to resolve vital conflicting evidence on important issues. See Onyema Oke v. Amos Eke & Ors. (1982) 12 S.C. 218 at 237. An order of retrial has the added advantage of giving the parties a second chance to prove their case and get the judge alerted about the loopholes and failings in the previous trial. The judgment and evidence in the previous trial are all swept away. The judgment does not operate as estoppel per rem judicatam and the road to justice is reopened. See Fadiora v. Gbadebo (1978) 3 S.C. 219 at 236. PER OBASEKI, J.S.C.
O. OBASEKI, J.S.C. (Delivering the Leading Judgment): I dismissed this appeal on the 15th day of March, 1988 after hearing counsel’s submissions and ordered the case to be remitted to the High Court of Oyo State, Ibadan for hearing de novo. I then reserved my reasons for the judgment till today and I now proceed to give them.
The appellant in this matter initiated proceedings in this matter by filing a claim in the Ibadan City No. 1 Grade A Customary Court in May, 1972.
The claim was for:
“1. Declaration of title to a piece or parcel of land situate at Poponla heyond Molete, Ibadan in Western State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed, later in the action.
2. 50.00 being general damages for trespass committed by the defendant, his servants/or agents on the said land on or about July, 1969 and still continuing;
3. Injunction to restrain the defendants, his servants/or agents from entering or committing further trespass on the said land. The value of the land is 50.00.”
After hearing evidence from the witnesses called by the plaintiff and the witnesses called by the defendant, the learned Chief Customary Court President dismissed the claim in the following words:
“From the evidence before me, it is quite clear that the plaintiff is not an exclusive owner. Claim for a decree of declaration of title is therefore dismissed. Claim for damages and injunction therefore fail and is dismissed.”
The plaintiff was not satisfied with the judgment and so he appealed against the decision to the High Court.
Before the hearing of the appeal, the original defendant Oladoja Aropoko, died. The appellant then sought and obtained an order to substitute Okunola Aropoko for the deceased from the High Court. Kayode Eso, C.J. (as he then was) made the order on the 13th day of November, 1976. The High Court [Kayode Eso, C.J. (as he then was)] heard the appeal and gave its judgment on the 27th day of October, 1977. Before the High Court, Chief Adisa, learned counsel for the plaintiff/appellant submitted that all the evidence before the court was not considered and proceeded to point out the pieces of evidence not considered.
Mr. Adekola, learned counsel for the respondent conceded this point for as the learned Chief Judge in his judgment said: (referring to the submission of counsel):
“He concluded by saying that the President made a mistake by not considering the evidence before him and the case was one for rehearing.”
Chief Adisa disagreed with the submission that the case should be reheard and asked for judgment for the plaintiff. The learned Chief Judge considered the issue of the proper order to be made – whether an order of non-suit or an order of retrial. He therefore decided on an order of retrial saying:
“However, there was so many points in the evidence of the plaintiff which were never considered by the trial president and he (sic) has not made use of the opportunity he had in seeing the witnesses and there should be a retrial.
The appeal is therefore allowed. The judgment of Olagbaju dated 28th June, 1974is hereby set aside and retrial is ordered before another customary court Grade A.”
This was on the 27th day of October, 1977.The plaintiff was still not satisfied and then appealed to the Federal Court of Appeal (now Court of Appeal) against the order of retrial.
The relief he sought from the Court of Appeal was for “judgment for the plaintiff in terms of the writ for
(a) declaration of title;
(b) injunction; and
(c) assessment of general damages for trespass.”
The Court of Appeal (coram: Dosunmu, Omololu-Thomas and Sulu-Gambari, JJ.C.A.) heard the appeal, found that it was devoid of merit and dismissed it. Dosunmu, J.C.A. in his judgment (concurred in by Omololu Thomas and Sulu-Gambari, JJ.C.A.) observed
“There is no particular formula in writing a judgment in so far as the evidence on both sides was dispassionately considered before coming to a decision. Even if counsel to the appellant is correct in his argument, all he can get is a retrial and not judgment for his client. This was what was done in Odofin v. Mogaji (1978) 4 S.C. 91 where the principle was laid down……..”what is more The appellant’s counsel did not contend that all the many points in the evidence of the plaintiff which he argued were not considered by the court and which the learned Chief Judge adverted to in his judgment could not have affected his client’s case in any way. And without saying so, it is difficult to appreciate how he can validly challenge an order of retrial made by the learned Chief Judge in the circumstance.”
The plaintiff was again not satisfied with the judgment of the Court of Appeal. He then filed a notice of appeal to this Court challenging the decision on three grounds. Without the particulars, the grounds are:
1. The learned Justices of the Court of Appeal erred in law as to the onus of proof of a better title in respect of the claims for trespass and injunction when the court held that it is the plaintiff who has to show a better title to the land in dispute in this appeal and not the defendant.
2. The learned justices of the Court of Appeal erred in law in confirming the order of retrial made by the High Court without comparing the plaintiff’s root of title with that of the defendant so as to ascertain which of them has the better title and therefore the legal right to possession of the land in dispute before ordering a retrial;
3. The learned Justices of the Court of Appeal erred and misdirected themselves in law when they held that the decision in Adejumo & Ors. v. Olagoke (1975) N.M.L.R. 38 does not apply in this appeal on the ground that the respondent here did not seek any declaration of title. The court does not give the same consideration to a plaintiff who seeks a declaration of title and the defendant who is only defending. The former has to succeed on his own and therefore the evidence he must put forward whether traditional or otherwise must be cogent.
The appellant filed a brief running to 34 pages in support of the above grounds. The respondent filed a reply brief running to 11 pages in reply to the arguments set out in the appellant’s brief.
The issues or questions for determination in this appeal formulated by the appellant are five in number and read:
“1. where the plaintiff claims to be in possession of land as owner and the evidence led for the defence is to the effect that he was put in possession by the defendant’s vendor for over 50 years as tenant, can the issue of possession be said to be in question to warrant a specific and express finding of possession by the trial court to ground the claim in trespass and injunction
2. in the particular circumstances and on the facts of this case on whom lies the burden of proof of a better title on the issue of
(a) declaration of title
(b) trespass and injunction
3. is the standard of proof of title by grant different as between the plaintiff and the defendant when the onus of proof shifts on a defendant to prove that he is the owner and he has a better title than the plaintiff
can a contradictory, inconsistent and irreconcilable evidence as to the names of grantors and grantees on one side, and roots of title as well on the other side be validly accepted to prove title by grant to ancestor of the defendant’s vendor as the trial court has accepted
5. is an appellate court inhibited from the exercise of considering and comparing the roots of title of both parties to test which party has proved a better title and therefore the legal right to possession of the land having regard to the particular circumstances of this case before ordering a retrial”
I think that the main question for determination in this appeal is:
whether having regard to the complaints against the judgment of the trial court in the first instance, the order of retrial made by the High Court and affirmed by the Court of Appeal is justified in law.
Learned counsel for the appellant called into play all his forensic ability in advocacy to persuade the court to hold that there is sufficient evidence on record to entitle him to judgment. His effort was not attended with any success as the trial court’s failure to consider many pieces of evidence identified in the High Court by the then learned Chief Judge (Eso, C.J. as he then was) can only be corrected by a retrial. The duty of the trial court or president is to consider all the evidence adduced carefully and make findings on them before coming to his judgment. He had the advantage of seeing the witnesses testify and forming an impression about their demeanour so as to come to a decision about their credibility. A court of appeal is deprived of the opportunity of seeing and hearing the witnesses testify. Even if the Court of Appeal judges may have come to a different decision if they were sitting as trial judges, having been deprived of the opportunity of seeing the witnesses and judging their credibility, the Court of Appeal’s duty as an appellate court is to send the case back to the trial Court or the High Court for either the same judge or another judge to rehear the case. See
Mogaji v. Odofin (1978) 4 S.C. 91
Okoye v. Kpajie (1973) N.M.L.R. 84
Fashanu v. Adekoya (1974) 6 S.C. 83
Woluchem v. Gudi (1981) 5 S.C. 291
Onyema Oke v. Amos Eke (1982) 12 S.C. 218
If nothing can be gained by an order for a new trial, an appeal court will retrain from making the order.
Taiwo Okeowo and 2 Ors. v. Mrs. D.A. Migliori & 3 Ors. (1979) 11 S.C. 138 at 201.
An order of retrial is not necessary if an appeal court can, in exercise of its appellate jurisdiction, do justice in the case and bring the litigation to an end. The duty of making findings of fact is essentially the preserve of the trial court.
Egri v. Ukperi (1974) 1 N.M.L.R. 22
An order of retrial is also proper where the trial court failed to resolve vital conflicting evidence on important issues. See Onyema Oke v. Amos Eke & Ors. (1982) 12 S.C. 218 at 237. An order of retrial has the added advantage of giving the parties a second chance to prove their case and get the judge alerted about the loopholes and failings in the previous trial. The judgment and evidence in the previous trial are all swept away. The judgment does not operate as estoppel per rem judicatam and the road to justice is reopened. See Fadiora v. Gbadebo (1978) 3 S.C. 219 at 236.The main reason why the High Court ordered a new trial was because vital pieces of evidence favourable to the plaintiff were not considered.
Summarising the arguments of counsel before him, the learned Chief Judge, Kayode Eso, C.J. (as he then was), said inter alia:
“Chief Adisa said that all the evidence was not considered. He also submitted that the evidence of the 4th plaintiffs witness to wit:
‘the defendant built on the land of the plaintiff I told her that she built on the land of the plaintiff. She was driven but she refused to leave. She said the plaintiff could sue her’
was also not considered. Also not considered, Chief Adisa submitted, was the evidence given under cross-examination by the first witness of the defence to wit:
‘I reported 4th plaintiffs witness for destroying (sic) of the defendant’
Nor the evidence of the 5th d. w. under cross-examination to wit:
‘It is about 10 years since Salawu and the plaintiff started dispute on the land’
Nor finally the evidence of the 6th defence witness also under cross-examination to wit:
‘the defendant said it was Salawu who granted her the land and if he is not pleased, he can institute legal action’
Mr. Adekola conceded that the President did not write down most of the findings of fact apparent on the record. He concluded by saying that the President made a mistake by not considering the evidence before him and the case was one for rehearing.
Chief Adisa disagreed.”
In view of these submissions, no reasonable appeal tribunal will proceed to assume the role of a trial court or engage in assessing and evaluating the evidence of witnesses it has not seen and the learned Chief Judge was justified in ordering a retrial. The Court of Appeal was equally justified in affirming the decision of the High Court.
It was for the above reasons that I dismissed the appeal and affirmed the decision of the Court of Appeal. As there is no Grade A Customary Court functioning at Ibadan, Oyo State, I ordered that the hearing de novo be conducted by the High Court of Oyo State, Ibadan as the court of competent jurisdiction with liberty to the parties to file pleadings.
A. NNAMANI, J.S.C.: This suit started from the No.1 Grade ‘A’ Customary Court, Ibadan in 1974. On the 28th June, 1974 the Hon. President D. E. Olagbaju dismissed the plaintiffs case. In the High Court of Oyo State, Ibadan the learned Chief Judge, Kayode Eso (as he then was) allowed the appellant/plaintiffs appeal and ordered a retrial of the suit. The plaintiff/appellant was not satisfied with this, and he appealed to the Federal Court of Appeal (now Court of Appeal). On the 6th November, 1984, that Court dismissed the appeal and affirmed the decision of the High Court to order a retrial. The plaintiff/appellant then appealed to this Court.
Having read all the papers, including the parties’ briefs of argument, and having also listened to oral argument on 15th March, 1988, I found the appeal unmeritorious and dismissed it. I ordered that the suit be retried in the High Court of Oyo State since the Customary Grade “A” Courts had been abolished. I indicated that I would give my reasons for this judgment today. I now give my reasons.
The main complaint of the appellant in this Court was against the decision of the Court of Appeal to uphold the decision to have a retrial. The appellant’s counsel contended that the Court ought to have given his client judgment. In his lead judgment ordering a retrial, Dosunmu, J.C.A. observed at page 83 of the record.
“The argument here is whether the plaintiff who has his claim dismissed because the evidence he brought to the Court (sic) was not properly evaluated could have the advantage of having the case retried as the learned President failed to make use of the opportunity he had in seeing the witnesses…………
However, there were so many points in the evidence of the plaintiff which were never considered by the trial President has not made use of the opportunity he had in seeing the witness and there should be a retrial.”
It was not necessary in determining the issues raised in this appeal to consider all the argument about possession etc. advanced by the appellant in an attempt to convince this Court that he ought to have judgment for title. I think all that is necessary is to examine the complaint of the appellant that the evidence he led before the learned Chief President was not considered. In doing this, one cannot but note that while it was the appellant who was drawing attention to evidence vital to his case which the learned Chief President either ignored or wrongly evaluated, he still strenuously fought against a re-trial. Two excerpts from the record will underline these complaints. At page 75 of the record where the appellant’s counsel made his submissions before the learned Chief Judge he said,
“The ancestor of the original grantor to the plaintiff gave evidence. The President never discredited the evidence of the grantor to the plaintiff. The President accepted the evidence of the plaintiff….No reference to credibility demeanour in veracity of plaintiffs…………..witnesses……The issue of pillars cannot be material to the case. Page 33 lines 12; but see evidence of plaintiff i.e. page 7 lines 16-17 which evidence was never considered. Also lines 11-12, page 10 lines 20-21. This too was not considered and also page 14 lines 40-41 page 19 lines 43-44 and page 20 lines 40-43”
It seems to me that the issues of credibility and demeanour of witnesses are matters within the domain of the trial Judge. It is not a matter for the appellate Court, let alone this Court. It is therefore even in the interest of the appellant that another court should have the opportunity of appraising this evidence which he thinks is so important to a just decision of the suit. It seems to me that the only fair order an appellate Court can make in such circumstances is an order of retrial. See Omoregie v. ldugieniye (1985) 2 N.W.L.R. (Pt.54) p.1. Also Ndukwe Erisi and 3 Ors v. Uzor ldika and 11 Ors. S.C. 95/1987 delivered on 27th May, 1988.
I had a preview of the reasons for judgment just read by my learned brother OBASEKI, J.S.C. It was for those reasons with which I am in entire agreement, and the short reasons I have indicated herein, that I dismissed the appeal and made the orders earlier referred to.
A. G. KARIBI-WHYTE, J.S.C.: On the 15th March, 1988, after hearing arguments of Counsel in this appeal. I summarily dismissed the appeal and ordered the case to be remitted to the High Court of Oyo Stale, Ibadan for hearing de novo. I then reserved my reasons for so doing till today.
This I now proceed to do. I have had the privilege of reading the reasons for judgment in this appeal of my learned brother Obaseki, J.S.C., I agree entirely with them.
The appellant was the plaintiff in the Ibadan City No.1 Grade ‘A’ Customary Court in May, 1972, and claiming as follows-
“1. Declaration of title to a piece or parcel of land situate at Poponla beyond Molete, Ibadan in the Western State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed later in the action.
2. ‘a3250 being general damages for trespass committed by the defendant his servant/or and agents on the said land on or about July, 1969 and still continuing.
3. Injunction to restrain the defendants, his servants or/and agents from entering or committing further trespass on the said land. The value of the land is #50.”
After due trial involving the hearing of oral evidence from the parties, the learned Customary Court President dismissed the claim. He found that on the evidence before him plaintiff/appellant is not the exclusive owner of the land in dispute. He also dismissed the claim for damages and injunction. Appellant/Plaintiff dissatisfied with the judgment appealed to the High Court of Oyo Stale. Before the hearing in the Oyo State High Court, the original defendant Oladoja Arokopo having died, appellant sought and was granted an Order to substitute the present respondent Okunola Arukopo. On appeal in the High Court, Oyo State at Ibadan, Kayode Eso C. J.. (as he then was, but now J .S.C.) heard the appeal. and argument by counsel to the parties. Counsel to the appellant, Chief Adisa contended that the President of the Customary Grade ‘A’ Court, did not consider all the evidence before him before giving judgment against the appellant Mr. Adekola for the Respondent conceded the point but submitted that the remedy lay in a rehearing of the case. Chief Adisa on his part submitted that it was not a question of rehearing and that the appellate court having before it the evidence which the President failed to consider, which was before him, could give judgment for appellant. He asked for judgment. The learned Chief Judge on his part after considering the submissions of counsel on the 27th October, 1972 allowed the appeal and made an order for a retrial as follows-
“….. there were so many points in the evidence of the plaintiff which were never considered by the trial President, and he (sic) has not made use of the opportunity he had in seeing the witnesses and there should be a retrial….”
Appellant/Plaintiff was dissatisfied, and appealed to the Federal Court of Appeal (now Court of Appeal). Again, the relief sought here were as per the writ of summons. After hearing argument, the Court of Appeal dismissed the appeal as being devoid of merit.
It is pertinent to observe that the issue before the Court of Appeal which arose from the judgment of the High Court, was whether the learned Chief Judge was on the evidence before him right in ordering a retrial, rather than give judgment for the appellant on the evidence before him. In dismissing the appeal the Court of Appeal held as follows-
“Even if counsel to the appellant is correct in his argument, all he can get is a retrial and not judgment for his client. This was what was done in Odofin v. Mogaji (1978) 4 S.C. 91 where the principle was laid down….”
“What is more The appellants’ counsel did not contend that all the many points in the evidence of the plaintiff which he argued were not considered by the Court and which the learned Chief Judge adverted to in his judgment could not have affected his client’s case in any way. And without saying so, it is difficult to appreciate how he can validly challenge an order of retrial made by the learned Chief Judge in the circumstance.”
Appellant dissatisfied with the judgment of the Court of Appeal has filed the grounds of appeal indicated below challenging the decision. The grounds of appeal without particulars arc as follows –
“1. The learned Justices of the Court of Appeal erred in law as to the onus of proof of a better title in respect of the claims for trespass and Injunction when the court held that it is the plaintiff who has to show a better title to the land in dispute in this appeal and not the defendant.
2. The learned Justices of the Court of Appeal erred in law in confirming the order of retrial made by the High Court without comparing the plaintiffs root of title with that of the defendant so as to ascertain which of them has the better title and therefore the legal right to possession of the land in dispute before ordering a retrial.
3. The learned Justices of the Court of Appeal erred and misdirected themselves in law when the court held that the decision in Adejamo & Ors. v. Olagoke (1975) N.M.L.R. 38 docs not apply in this appeal on the ground that “the Respondent here did not seek any declaration of title. The court does not give the same consideration to a plaintiff who seeks declaration of title and the defendant who is only defending. The former has to succeed on his own and therefore the evidence he must put forward whether traditional or otherwise must be cogent.
4. The learned Justices of the Court of Appeal misdirected themselves in law and on the facts when the court held that the case of Lawal v. Dawodu (1972) 1 A.N.L.R. Part II 270 at 290 was irrelevant on the matter of possession in this case.
5. The learned Justices of the Court of Appeal erred and misdirected themselves in law and on the facts when it held that the case of Alade vs. Awo (1975) 4 S.C. 215 was correctly distinguished from the present case by the High Court when the ratio decidendi that the traditional history of the plaintiff was brushed aside on erroneous propositions of law and the root of title of the defendant accepted by the court of trial hangs in the air was applicable to the present case.
Briefs of arguments were filed by counsel on both sides. They relied during argument on the briefs so filed but elaborated on areas they considered needed to be emphasised. Counsel to the appellants formulated five issues for determination. They are as follows-
“1. Where the plaintiff claims to be in possession of land as owner and the evidence led for the defence is to the effect that he was put in possession by the defendant’s vendor for over 50 years as tenant, can the issue of possession be said to be in question to warrant a specific and express finding of possession by the trial Court to ground a claim for trespass and injunction
2. In the particular circumstances and on the facts of this case, on whom lies the burden of proof of a better title on the issue of (a) declaration of title (b) trespass and injunction
3. Is the standard of proof of title by grant different as between the plaintiff and the defendant when the onus of proof shifts on a defendant to prove that he is the owner and he has a better title than the plaintiff.
4. Can a contradictory, inconsistent and irreconcilable evidence as to the names of grantors and grantees on one side, and roots of title as well on the other side be validly accepted to prove title by grant to ancestor of the defendant’s vendor as the trial court has so accepted.
5. Is an appellate Court inhibited from the exercise of considering and comparing the roots of title of both parties to test which party has proved a better title and therefore the legal right to possession of the land having regard to the particular circumstances of this case before ordering a retrial”
Counsel to the respondent in the brief filed would appear to have accepted the above formulation of the issues, having not suggested any contrary formulation of the issues.
It seems to me that the appellant was formulating issues for determination which were clearly outside the decisions appealed against. It is necessary to recall that judgment was given against appellant on his claim by the Court of first instance. Appellant appealed against the judgment. The appellate High Court on the evidence made an order for retrial. The appeal to the Court of Appeal against the judgment of the High Court was dismissed by the Court of Appeal. It is this last judgment that is before us. In effect the appellant is challenging the Court below for affirming the judgment of the High Court. Concisely stated, the only issue before us is having regard to the complaints against the judgment of the trial Court, and the order of retrial made by the High Court in its appellate jurisdiction, whether the Court of Appeal was justified in affirming the judgment of the appellate High Court.
The contention of the appellant that there was before the trial Court sufficient evidence upon which judgment could have been given in his favour, and that where the trial judge has failed to do so an appellate Court could step into its shoes to do so, remained his submission even before us.
It is both elementary and fundamental to the proper administration of justice that the Court of trial must consider all the evidence adduced before it and carefully make findings on them before coming to its judgment in the case. This duty imposed on the trial Court involves a utilization of the advantage of seeing the witnesses testify and forming impressions about their credibility. Thus where all the evidence before the trial Court has not been considered before giving judgment it cannot be said with any measure of certainty, that the trial judge considered all the case before it. Thus there is a yawning gap through which obvious injustice could intrude undisturbed. The jurisdiction as to consideration of oral evidence and making findings of fact therefrom properly belong to the trial Court.
In the appeal before us it was common ground that not all the evidence before the trial Court were considered by the President of the Grade A Customary Court before he gave his judgment. For instance, as was submitted by counsel to the appellant, the evidence of 4th plaintiff’s witness that
“the defendant built on the land of the plaintiff, I told her that she built on the land of the plaintiff. She was driven but she refused to leave. She said the plaintiff could sue her”
Also under cross-examination, first Defence witness said.
“reported 4th plaintiff’s witness for destroying (sic) of the defendant”
Again under cross-examination 5th defendant’s witness said,
“It is about 10 years since Salawu and the plaintiff started dispute on the land”
Finally, under cross-examination. the 6th defendant’s witness said.
“The defendant said it was Salawu who granted her the land and if he is not pleased, he can institute legal action”
It is on record that Mr. Adekola, counsel to the respondent conceded that the trial President did not consider most of the findings of fact apparent on the record. He concluded that the trial President had made a mistake by not considering the evidence before him and submitted that the case was one for rehearing.
The evidence referred to above are such that depended for their acceptance on the credibility of the witnesses based on their demeanour and veracity whilst giving evidence before the Court. The President who saw and heard them and failed to take their evidence into consideration therefore failed to take advantage of his special relationship in that regard. Chief Adisa has submitted that the appellate High Court could play the role of the trial Court. I do not think that is right. That has never been, and is not now the law. It seems to me counsel is confusing evaluation of evidence based on primary findings of facts which have already been made with the issue of making of primary findings of facts on the evidence on the record before the Court. Whereas an appellate court can evaluate facts on primary findings made by the Court of trial, it cannot make primary findings of facts. This is because in the last mentioned situation, the appellate court had no opportunity of seeing the witnesses and determining their credibility in respect of such issues. Hence even if the Court of Appeal would have come to a conclusion different from that of the trial Court, it is bound to accept the finding of the trial Court.
The issue, as in this case, is more compelling when the trial Court had not made any findings on an issue in respect of which there was evidence. Since the parties are agreed that the trial Court made no findings of fact on the evidence reproduced above, and the responsibility of making such findings of fact are those of the trial Court, the High Court on appeal was right in declining to make such findings of fact, it was invited by counsel to make and the Court of Appeal was justified in affirming that judgment – See Egri v. Ukperi (1974) 1 N.M.L.R. 22.
The High Court ordered a retrial since the trial Court had not considered the case as a whole. It was therefore necessary and in the interest of justice, proper to give the parties another opportunity to prove their case which has failed because of the defect in the consideration of the evidence by the Court of trial which gave the judgment. Hence where the trial Court has failed to resolve vital conflicting evidence on material issues, a retrial is the proper order – See Onyema Oke v. Amos Eke & Ors. (1982) 12 S.C. 218. In view of the evidence before the appellate Courts, it would ,have been preposterous for an appellate Court to engage in assessing and evaluating evidence of witnesses where no primary findings of facts have been made by the trial Court. Accordingly in my opinion the learned Chief Judge was justified in ordering a retrial, and the Court of Appeal right in affirming the decision of the High Court. The order of retrial is to enable the trial judge to consider all the evidence before him in order to come to a just decision in the case between the parties. If nothing will be gained it will be unnecessary to make the order – See Taiwo Okeowo & Ors. v. Migliore & Ors. (1979) 11 S.C. 138 at p.201. As there is no Grade A Customary Court at Ibadan, Oyo State, I ordered that the hearing de novo be in the High Court of Oyo State, lbadan. The parties are at liberty to file pleadings.
A. G. O. AGBAJE, J.S.C.: On 15th March, 1988 after hearing the submissions of counsel I dismissed the appellant’s appeal. I reserved my reasons for doing so till today. I now give the reasons.
The appellant, as plaintiff sued one Oladoja Arokopo, as defendant in an Ibadan Grade ‘A’ Customary Court for a Declaration of title to land, damages for trespass to land and an injunction and lost. The appellant appealed against the judgment to an Ibadan High Court contending that the Grade ‘A’ Customary Court did not consider as it was in duty bound to do in arriving at its decision all the evidence before it. This contention was upheld by the High Court which consequently set aside the judgment of the Grade ‘A’ Customary Court. The High Court did not however enter judgment for the appellant but instead ordered a retrial of the whole case before another Grade ‘A’ Customary Court. The appellant was not satisfied with the order for a retrial and unsuccessfully appealed against it to the Court of Appeal, Ibadan Division. This is a further appeal against the order for a retrial by the appellate High Court.
It is abundantly clear that the evidence admittedly not considered by the Grade” A” Customary Court was in conflict with the evidence upon which it based its judgment dismissing the appellant’s claims before that court. Short of speculation it is not possible to say what the Grade “A” Customary Court would have done if it had considered the evidence which escaped its attention. In the circumstance the order for a retrial of the whole B case by another judge of Grade ‘A’ Customary Court made by the appellate High Court was eminently a proper one ..”
It is for the above reason in addition to the fuller reasons given in the lead reasons for judgment by my learned brother Obaseki J.S.C, the draft of which [ have had the opportunity of reading, that I dismissed the appellant’s appeal on 15/3/88 and affirmed the order for a retrial made by the appellate High Court.
P. NNAEMEKA-AGU, J.S.C.: On the 15th day of March, 1988, this Court after hearing arguments in this appeal dismissed the appeal and fixed today for giving reasons for judgment. I have had a preview of the reasons for judgment given by my learned brother, Obaseki, J.S.C just delivered. I agree with his reasoning and conclusions and hereby give my own reasons for the judgment.
The plaintiff’s action for declaration of title to a piece or parcel of land situate at Ponpola, beyond Molete, Ibadan, which is more clearly shown in a plan, Exh. A, and for #50 damages for trespass and injunction before the Ibadan City No. 1 Grade A Customary Court was dismissed by the Chief Customary Court President, D.E. Olagbaju. An appeal to the High Court was allowed by Eso, C. J. (as he then was) on the ground that the learned trial Chief President failed to make any findings on a number of vital issues. The learned C. J. ordered a retrial. The Plaintiff appealed, contending that the learned C. J. should have entered judgment for him. The Court of Appeal, Ibadan Division by the lead judgment of Dosunmu, J.C.A. to which Omololu Thomas and Sulu Gambari, JJ.C.A., concurred, dismissed the appeal and confirmed the order of retrial. The Plaintiff then appealed further to this Court.
The issues for determination as framed by the learned counsel for the appellant and adopted by the learned counsel for the respondent have been set out in the lead judgment. To my mind it is unnecessary to consider those issues in any detail both because they have been amply considered in the lead judgment and because it does appear to me that the main and decisive issue is whether the Court of Appeal was right to have confirmed the order for retrial made by the High Court. If the Court was right – as I believe it was – then it is undesirable to go into other issues which may have the effect of prejudicing the retrial.
It is noteworthy that the order for retrial was made on the ground that there were many points in the evidence of the Plaintiff which were never considered by the trial court. The learned C.J. of the High Court said:
However, there were so many points in the evidence of the Plaintiff which were never considered by the trial President (sic) has not made use of the opportunity he had in seeing the witnesses and there should be a retrial”.
In arguing the appeal before the Court of Appeal, and also in this Court counsel on both sides did not dispute the fact that the trial Court failed to resolve so many issues of fact placed before the court of trial. Rather, as pointed out by Dosunmu, J.C.A., in the Court of Appeal counsel on both sides not only confirmed the fact but also complained of the failure of the learned trial Chief President to resolve and find certain issues of fact the believed were in their favour. Furthermore, while the learned counsel for the defence made the startling concession that the plaintiffs case was not fully considered before the defence (respondent) case was considered and accepted, the learned counsel for the Plaintiff (appellant) contended that because the appellant’s evidence of tradition was rejected on wrong approach to such evidence, his client was entitled to judgment. Also the learned counsel for the appellant further submitted before us that as the possession of the land in dispute by his client was not in dispute that possession would have been sufficient to found a judgment on trespass and injunction at least.
I must pause here to put the cases of both sides in their correct perspectives. It is true that both sides to the dispute claimed not only to be in possession but also to have title. The plaintiff/appellant’s claim for title was dismissed. The Court of Appeal found that there was no proper appeal against the dismissal of the claim for title before the Court of Appeal. (See p. 121 lines 40 – 42) As it is trite that in a case where both sides claim to be in possession, the law ascribes possession to the person who proves a better title (for which see Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 66, at p.78), the appellant cannot succeed in trespass against the respondent. In so far as the respondent claims to be owner of the land, its title is put in issue. So, in order for the appellant to succeed, he must prove a better title. As his claim for title had been dismissed and not appealed against, he cannot fall back to mere possession in order to sustain a claim in trespass. See also Kponuglo v Kadaja (1934-35) 2 W.A.C.A. 24, at p.29.
Next I shall deal with the contention of the appellant that the Court of Appeal failed to consider the appellant’s evidence of tradition on the principles enunciated in Kojo II v. Bonsie (1957) 1 W.L.R. 1223, p. 1226; and applied in F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215 and so many other cases. The gist of the complaint of the appellant in this respect is that, as the trial court approached the evidence of tradition given by the appellant wrongly, it ought to have been considered by the learned Justices of the Court of Appeal and accepted if they made a proper approach to it. This could have proved the appellant’s case.
In my opinion the argument has rolled too many issues into one and thereby over-simplified them drastically. In Alade’s case (supra) there was before the Court only the plaintiff’s version of the traditional evidence: there was no other evidence of tradition on the other side in conflict with it. It was in Alade’s case rejected on untenable grounds. With a proper approach by the Supreme Court, it had to be, and was in fact, accepted. In the instant case, there was another version of the traditional history in conflict with that told by the appellant i.e. the version by the respondent. No amount of correct approach could have enabled the court accept the appellant’s version in view of the further opinion of the Court of Appeal that –
“The trial Court never considered any evidence of acts of ownership by the’ plaintiff/appellant if there was any such evidence…….”
This was not faulted in any argument before us. In short, the lack of consideration of acts of ownership by the appellant robbed their evidence of tradition of those acts within living memory which could have made their evidence of tradition more probable. For what the principle in Alade v. Awo (supra) comes to is this: that the probability of evidence of tradition shall be judged not from the point of view of demeanour of witnesses but from the background of other established facts within living memory which would make such evidence of tradition more probable. The Court of Appeal was therefore right when it drew the distinction between this case and Alade v. Awo (supra) in these words:
“There was no challenge to the traditional evidence of the Plaintiff’s in Awo’s Case and it was found conclusive. Therefore there is no reason in this appeal to apply the decision in Awo’s case (supra).”
It is from the above facts and circumstances, namely; the complaint of both counsel that the trial court failed to resolve vital issues of fact and make findings thereon, the lack of finding on appellant’s pleaded acts of ownership and the conclusion of the court below that the appellant’s evidence of tradition was inconclusive that I now proceed to consider the main issue as to the propriety, or otherwise, of the order for a retrial. In my opinion a judgment of court ought not to be, as it were, a rule of thumb. In my opinion the word “judgment” in this con, as in the con of appeals, includes the reasons for judgment. It is wider in connotation than that formal “judgment’ which is enrolled, sealed and issued to the successful party and entered in the books of the court. Where the reasons for judgment in this broad sense are defective or non-existing because the issues have not been resolved it lacks its very essence and is vulnerable. For, it is supposed to finally dispose of all the controversy as to any of the matters in issue between the parties in the suit: none of the issues raised in the action ought to stand over for further adjudication in future. And, furthermore, the judgment must not only demonstrate in full a dispassionate consideration of all the issues properly raised and tried in the case but also now logically from such an exercise. See Polycarp Ojogbue & Anor. v. Ajie Nnibia & Ors. (1972) 1 All N.L.R. (Part 2) 226. It is one of the primary duties of a Judge in the process of adjudication to make findings of fact on issues joined on the pleadings. Where it fails to do so, an appellate court will order a retrial when the evidence is of such a nature that it cannot make its own findings, not having seen or heard the witnesses. See on this: Chief James Okpiri & Ors. v. Chief Igoni Jonah & Ors. (1961) All N.L.R. 102; Armel’s Transport Ltd. v. Madam Attinuke Martins (1970) All N.L.R. 27; Okeowo v. Milgliore (1979) 11 S.C. 138.
Awode v. Owodunni (No.2) (1987) 2 N.W.L.R. (Part 57) 367.
In the instant case in which a proper resolution of these issues depended on credibility of witnesses, an appellate court has no alternative but to remit the case for retrial, as it is in no position to accredit one set of witnesses and discredit the other. See Lawal Baraimoh Fatoyinbo & Ors. v. Seliatu Abike Williams alias Sani & Ors. (1956) 1 F.S.C. 87: Watt or Thomas v. Thomas (1947) A.C. 484, at pp. 487-488 per Lord Thankerton.
For the above reasons and those more fully stated in the reasons for judgment of my learned brother, Obaseki, J.S.C., which I adopt as my own, I considered it preposterous that the learned counsel for the appellant could argue that this Court could give, or that the appellate Court below should have given judgment for the appellant rather than ordering a retrial. I therefore dismissed the appeal and reserved my reasons till to-day.
Appeal Dismissed.
Appearances
Chief Adeoye AdisaFor Appellant
AND
Mrs. P.C. Ajayi-ObeFor Respondent
