CHIEF OLAYEMI ABOLARIN & ORS v. DR. JOHNSON ADEWUMI & ORS
(2016)LCN/8352(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/IL/140/2014
RATIO
PRACTICE AND PROCEDURE: DUTY OF THE LOWER COURT TO PRONOUNCE ON ALL ISSUES PLACE BEFORE IT; THE IMPLICATION OF THE FAILURE OF THE LOWER COURT TO PRONOUNCE ON ALL ISSUES PLACED BEFORE IT AND THE EXCEPTION OF THIS RULE
The Apex Court has often admonished and demanded that the Lower Courts should pronounce, as a general rule, on all the issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility of the only issue or issues decided by them could be faulted on appeal. This point has been made clear in its observations in a plethora of cases. See, OYEDIRAN v. AMOO (1970) 1 ALL NLR 313 at 317; OJOGBUE v. NNUBIA (1972) 8 SC 227; ATANDA V. ALANI (1989) 3 NWLR (Pt. 111) 511 AT 539; OKONJI v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131 AT 150, 151, 152, TITILOYE v. OLUPO (1991) 7 NWLR (Pt. 205) 519 AT 529; IKATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt. 214) 126 AT 149. In the case of BRAWAL SHIPPING LTD. v. F. I. ONWADIKE CO. LTD. (2000) 11 NWLR (Pt. 11) NWLR (Pt. 678) PAGE 387 AT P. 403-404; (2002) 6 SCNJ 508 AT 522. His Lordship of the Apex Court at P. 403, Uwaifo, J.S.C. in this respect held thus:
“Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently there could be available delay since it may become necessary to send the case back to the Lower Court for those issues to be resolved.”
There are exceptions to the above principle of law, that is, the necessity of pronouncement on every issue canvassed for determination; these are where an order for a retrial is necessary or the judgment is considered a nullity, in these cases there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action, whatever the case may be.
For the same reasons, this Court in GEO MEMORIAL MEDICAL CENTRE & ANOR v. NATIONAL DIRECTORATE OF EMPLOYMENT (2013) LPELR-20796 (CA) at PAGE 25 PARAGRAPHS C – F on the duty of the Court to consider and pronounce on every issue before it held that:
“The law is that a Court has a duty to consider every issue before it. In EGHAREVA v. OSAGIE (2009) 18 NWLR (Pt. 1179) 299 at 310-311, H – A the Court observed:
“Any issue properly raised and canvassed before a trial Court or an appellate Court must be given a fair hearing and considered. This is so in order to avoid a miscarriage of justice”
Further, a Court should not only consider, but should also pronounce on every issue before it, see, OKEKE OBA v. OKOYE (1994) 8 NWLR (Pt. 364) 610.”
See, also SAMBO PETROLEUM LTD & ORS v. UBA PLC & ORS (2010) 6 NWLR 530 AT 531, SPRING BANK PLC v. DOKKIN-VENTURES NIGERIA LTD (2012) LPELR-7983 and GRAND SYSTEM PETROLEUM LIMITED & ANOR v. ACCESS BANK (2013) LPELR-22356 (CA).
The essence of adopting the above course is to avoid the danger of an Appeal Court holding a contrary view on the materiality of the issue which was not considered. The point is not whether considering the issue not pronounced upon would have changed the decision of the trial Court or not as argued by the learned Counsel to the respondents, who also proffered the same argument under issue one to the effect that the error of the trial Court in evaluating the evidence in Chief of a prospective witness who did not testify in Court and was not cross examined, also the attribution of evidence on oath and cross examination in Court of one witness to another who did not testify, would not have affected the judgment of the trial Court. This argument is not tenable in law, in that parties must be given opportunity to present their case on level grounds before a decision is taken over their case to avoid denial of fair hearing. PER. CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OLAYEMI ABOLARIN
2. CHIEF BAMIDELE FAYOMI
3. CHIEF MICHAEL AFOLAYAN
(For themselves and on behalf of the land owners of Inishan) – Appellant(s)
AND
1. DR. JOHNSON ADEWUMI
2. OBA OLAWUYI VICTOR OLUWAFEMI
(For Oko Community)
3. DE CROWN WEST AFRICA COMPANY LTD. – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Kwara State, presided over by M. Abdulgafar, J in Suit No: KWS/OM/11/2009. The appellants in a representative capacity for themselves and the land owners’ families of Inishan were the claimants in the lower Court, who claimed as follows:
“A declaration that the defendants trespassed on their family land, claimed general damages for trespass, damages for trees and valuable shrubs cut down along survey lines and a perpetual injunction against the defendants, their agents and privies from further trespassing on the land. The original statement of claim was further amended by order of Court on 24-3-2010 and is shown on page 170 of record of proceeding. Judgment was entered for the defendants on 28th June, 2013.”
The background facts are that the appellants claimed to own the Akoro land which was described in the further amended statement of claim, page 170 of the records of Appeal. The Appellants claimed possession from time immemorial, pleaded facts of ownership and control, and gave evidence in support. The
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appellants called four witnesses (PW1-PW4) in proof of their case, PW1 and PW2 testified that they were boundary neighbours to the Inishan Land owners and not with Oko. The lower Court disbelieved these witnesses because they were not specific as to which of the Inishan families they shared a common boundary with, See pages 178, 180, 172 and 194 for the statement on oath of PW1-PW4 and their cross examination at pages 266, 267, 268 and 269 respectively.
The Respondents also called four out of their six listed witnesses. The learned Senior Counsel to the Respondents and the learned trial judge were said to have considered and reviewed the unadopted evidence of one Joseph Fakayode Jolayemi instead of the evidence of Chief Dokun Jolayemi (DW2) (same person as David Dokun Jolayemi), page 219, also, pages 234 lines 3-8, 206, lines 35-37.
It was alleged that the Respondents as defendants in the lower Court did not challenge the evidence of ownership and control adduced by the appellants. Further, that no neighbour of the four witnesses called by the Respondents testified on their behalf.
The Respondents made out that Inishan families (the
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claimants) do not have an exclusive control over Akoro land, and that no ward has such exclusive control or ownership.
It was alleged that the Respondents, after becoming aware of the pendency of the suit and after becoming aware of a motion seeking to restrain them, processed and obtained an Irepodun L.G.A. Right of Occupancy in respect of the land in dispute.
Further, that the trial Court did not pronounce on the third issue as claimed and Submission made in its support.
From the five (5) grounds of appeal, four (4) issues were formulated for determination of the appeal. They are as follows:
(i) “Issue I:
What is the legal effect of the review of the evidence-in-Chief of Joseph Fakayode Jolayemi (who did not give evidence in Court) and what is the legal effect of omitting to review the evidence-in-Chief of Dokun Jolayemi who gave evidence as DW2, on the final decision of the trial judge? (Ground 3).
(ii) Issue II:
Whether the reasons given by the honourable trial judge for his disbelief in the evidence of PW1, PW2, PW3 and PW4 are correct tenable or justifiable in the circumstances of the case and whether the
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error led to miscarriage of justice (Ground 2).
(iii) Issue III:
Whether the honourable trial judge properly considered and evaluated the evidence before him or whether he has compared and weighed the evidence of the claimants, witnesses against the evidence of the defendants, witnesses on an imaginary scale and what is the effect of such a failure? (Grounds 1 and 5).
(iv) Issue IV:
What is the legal effect of the trial judge omitting to consider and or pronounce on an issue raised by counsel? (Ground 4).”
The Respondents on their part also formulated four (4) issues for determination of the appeal, as follows:
1. “What is the legal effect of the review of the evidence-in-chief of Joseph Fakayode Jolayemi (who did not give evidence in Court) and what is the legal effect of omitting to review the evidence in Chief of Dokun Jolayemi who gave evidence as DW2 on the final decision of the trial judge? – This relates to ground 3.
2. Whether the reasons given by the Hon. Judge for his disbelieve in the evidence of PW1, PW2, PW3, PW4 are correct tenable or justifiable in the circumstances of the case and whether the error led to
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miscarriage of justice – ground 2.
3. Whether the honourable trial judge properly assessed and evaluated the evidence before it and came to correct conclusion? This relates to grounds 1 and 5.
4. What is the legal effect of the trial judge omitting to consider and or pronounce on an issue raised by counsel? Ground 4.”
Chief A. Y. Abolarin for the Appellants in arguing the appeal adopted and relied on his brief of argument filed on 25/6/15 as his argument in this appeal in urging us to allow same.
In his issue one, it was submitted that the omission of the evidence-in-chief of the DW2 (Dokun Jolayemi) page 50 of the records and the consideration of the evidence-in-chief of Joseph Fakayode Jolayemi (who did not give evidence) is an error which has led to a miscarriage of Justice. It was argued that the omission to consider the evidence of the DW2 and the review and evaluation of Joseph Fakayode Jolayemi’s evidence led to a miscarriage of Justice. We were urged to review the judgment of the trial Court and reverse same.
On the appellants’ second issue, the learned Counsel to the appellants faulted the learned trial Judge’s
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disbelief of the evidence of the PW1 and PW2 for maintaining that the claimants were their boundary neighbours but, failed to state the specific Inishan family with whom they shared boundary with and for not knowing the size and extent of the claimants’ land, pages 2 and 9 of the records.
It was argued that the above reasons are not tenable and justified. See: pages 294 and 295. We were urged to evaluate the conclusion arrived at by the trial Court and reverse the finding based on the evidence before the Court. See, AKIBI v. OPALEYE and ANOR. (1974) 1 ANLR (Pt. 2) 344 at 356, OLADEHIN v. CONTINENTAL TEXTILE MILLS LTD (1978) 2 S.C. 23 at 32; GARUBA v. YAHAYA (2007) 29 NSC QR 375 at 392 PARA D – F and KATE ENTERPRISES LTD. v. DAEWOOD NIG. LTD (1985) 2 NWLR (Pt. 5) 166 at 129, A – B.
The learned Counsel to the Appellants also faulted the trial Court’s disbelief of the evidence of the PW3 and PW4. It was alleged that the trial Court went outside the pleadings and evidence before the Court to pick facts not in issue on which it based its reasons to disbelieve the PW3 and PW4.
The appellants’ third issue is on the evaluation of evidence. The
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trial Court’s evaluation of the evidence before it was faulted. It was alleged that the trial Court did not consider the evidence of the claimants and their witnesses, for instance the pleadings and evidence of ownership and possession as made out by the claimants especially the evidence of the PW3 and PW4 against the evidence of the defendants that the claimants or any ward do not exclusively own any piece of land in Akoro. Further, it was submitted that the trial Court ought to have examined side by side the evidence of DW4 with the evidence of the PW3 and PW4 on possession and ownership, if it did, it would have arrived at a different decision.
The appellants’ fourth issue challenged the trial Court’s failure to pronounce on an issue raised by counsel, that is, that the right of occupancy (R of O) tendered by the defendants was obtained after the proceedings had started and after becoming aware of the motion by the claimants seeking to restrain them. It was argued that if this had been considered, the trial Court would have held that the R of O was null and void.
In Response, the learned counsel to the Respondents O. T. Olorunnisola, Esq.,
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appearing with O. O. Adeyemi (Miss) adopted and relied on his brief of argument filed on 9/7/15 as his argument in this appeal in urging us to dismiss the appeal.
In arguing his first issue, the learned Counsel to the Respondents submitted that review of written evidence on oath does not ipso facto negatively affect the judgment of a Court unless it is shown that the evidence forms part of the decision of the Court, also that it has to be shown that without such wrongly used evidence the decision would be different and will materially affect the judgment of the Court.
Further, that the written evidence on oath of a witness who testified and adopted his written evidence but, such evidence is not reviewed remains proper evidence in Court, reference was made to the evidence of DW2 Chief John Jolayemi, page 274 of the records and the evidence of Chief Joseph Fakayode Jolayemi, page 45 of the records. It was submitted that the Appellants have not shown how reviewing the evidence of Chief Joseph Fakayode without evidence that the trial Court used any part of it in its judgment can or has occasioned a miscarriage of justice.
On the
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Respondents’ second issue, it was argued that the trial Court was right to have disbelieved the evidence of PW1 – PW4, firstly, that the PW1 and PW2 who claimed to be boundary neighbours to the Appellants did not know the length or size of the claimants’ land. Also, alleging that the land in dispute belongs to Inishan people is not enough since the Respondents have alleged that Akoro land belongs to Oko people and that Inishan people are part of Oko Community. Further, that anybody from any ward in Oko could farm on the land without seeking permission.
It was submitted that the trial Court was in a better standing to assess the evidence of the PW3 and PW4 having seen and heard them testify.
The Respondents’ third issue is on evaluation of evidence. The evidence of the PW3 was reviewed and the trial Court’s evaluation of same as well as that of the PW4 to the effect that their evidence was not credible.
The evidence and evaluation of same of DW3 and DW4 were reviewed by the learned counsel who concluded that the claimants were to prove their case not the defendants.
On the Respondents’ fourth issue, it was submitted that the
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claim at page 170 of the records did not include any declaration in respect of the Right of Occupancy and that no contempt proceedings had been initiated. It was submitted that the alleged trespass was not based on the holding of Right of occupancy but, that the claim is on customary land tenure law of Oko and that the decision of the Court was not premised on the Right of occupancy. It was concluded that making a pronouncement on the issuance of Right of Occupancy would be an exercise in futility when the person who issued the Right of Occupancy was not joined in the suit.
I have examined the issues as raised by the parties; their respective four issues are similar but differently worded. I would utilize the issues as raised by the appellants in determining the appeal. Part of the appellants’ first issue is that the learned trial Judge reviewed the evidence in chief of Joseph Fakayode Jolayemi who did not testify in Court and was not cross examined. All that was on record was the written evidence on oath which was not adopted. The learned Counsel to the Respondent did not dispute this fact but had argued that it did not matter unless the appellants
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could show that the trial Court’s judgment would have been different had this omission not occurred.
By the provisions of Order 4 Rule 2 (2) (a) – (c) of the Kwara State High Court Civil Procedure Rules, 2005, the names of witnesses and their written statements on oath must be filed along with the pleading. The evidence on oath of Joseph Fakayode Jolayemi is at pages 45-46 of the printed records. Further, Order 40 Rules 1 (1) and (2) of the said Rules of Court requires that there be adoption of the written depositions of witnesses in open Court, followed by cross examination for facts to be proved. Thus, only witness listed is required to adopt his written deposition on oath before he could be considered referred to as a witness. No doubt, Joseph Fakayode Jolayemi was listed as a witness by the respondents; he did not testify in Court, there was no adoption of his written depositions and he did not make himself available for the purpose of cross examination to establish facts.
Secondly, Dokun Jolayemi gave evidence as the DW2. The evidence in chief of the said witness was neither reviewed, nor evaluated by the trial Court.
There is no
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doubt about the mix up by the learned trial judge who utilized the evidence in chief of Joseph Fakayode Jolayemi who did not give evidence in Court and was not cross examined and took his testimony as that of the DW2 and failed to review the evidence in chief of the real DW2 Chief Dokun John Jolayemi. The learned Counsel to the Respondents had argued that such mix up did not affect the judgment of the trial Court and that the said judgment was not based on the wrongly reviewed evidence in Chief of Chief Dokun John Jolayemi. I intend to disagree with this view.
At page 283 of the printed records, the trial Court reviewed and utilized the evidence of Chief Joseph Fakayode Jolayemi as DW ‘2’ in error, and stated that he adopted his statement on oath, which he did not. From the last paragraph at page 283 – page 284 the supposed evidence was reviewed extensively. Paragraph 34 in the trial Court’s judgment. At page 290 (last paragraph) to paragraph 35, page 291 of the printed records, it is crystal clear that the evidence of DW’2′ was wrongly utilized.
The trial Court specifically held that the DW ‘2’ (wrongly named) lied and was not a credible
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witness as well as DW’1′ and DW’3′. Obviously, this affected the trial Court’s decision in resolving issue one, in favour of the claimants, contrary to the submissions of the learned Counsel to the Respondents that it did not affect the judgment.
In my considered view, the mix up and or error on the part of the trial judge is substantial and creates an inbalance in considering the case of the parties on both sides on the imaginary scale. The first issue is resolved in favour of the appellants.
Next, I would resolve issue four (4) before two and three if need be. Issue four is on the effect of the trial Court’s failure to pronounce on an issue raised by Counsel.
Why the learned Counsel to the Appellant argued that the learned trial judge was duty bound to resolve all the issues raised before him, except where one issue raised disposed of the case, the learned Counsel was of the view that the decision of the trial Court was not premised on the Right of Occupancy said to have been obtained during the pendency of this matter.
The Apex Court has often admonished and demanded that the Lower Courts should pronounce, as a general rule,
13
on all the issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility of the only issue or issues decided by them could be faulted on appeal. This point has been made clear in its observations in a plethora of cases. See, OYEDIRAN v. AMOO (1970) 1 ALL NLR 313 at 317; OJOGBUE v. NNUBIA (1972) 8 SC 227; ATANDA V. ALANI (1989) 3 NWLR (Pt. 111) 511 AT 539; OKONJI v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131 AT 150, 151, 152, TITILOYE v. OLUPO (1991) 7 NWLR (Pt. 205) 519 AT 529; IKATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt. 214) 126 AT 149. In the case of BRAWAL SHIPPING LTD. v. F. I. ONWADIKE CO. LTD. (2000) 11 NWLR (Pt. 11) NWLR (Pt. 678) PAGE 387 AT P. 403-404; (2002) 6 SCNJ 508 AT 522. His Lordship of the Apex Court at P. 403, Uwaifo, J.S.C. in this respect held thus:
“Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently there could be available delay since it may become necessary to send the case back to the Lower Court for those issues to be
14
resolved.”
There are exceptions to the above principle of law, that is, the necessity of pronouncement on every issue canvassed for determination; these are where an order for a retrial is necessary or the judgment is considered a nullity, in these cases there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action, whatever the case may be.
For the same reasons, this Court in GEO MEMORIAL MEDICAL CENTRE & ANOR v. NATIONAL DIRECTORATE OF EMPLOYMENT (2013) LPELR-20796 (CA) at PAGE 25 PARAGRAPHS C – F on the duty of the Court to consider and pronounce on every issue before it held that:
“The law is that a Court has a duty to consider every issue before it. In EGHAREVA v. OSAGIE (2009) 18 NWLR (Pt. 1179) 299 at 310-311, H – A the Court observed:
“Any issue properly raised and canvassed before a trial Court or an appellate Court must be given a fair hearing and considered. This is so in order to avoid a miscarriage of justice”
Further, a Court should not only consider, but should also pronounce on every issue before it, see, OKEKE OBA v. OKOYE (1994) 8 NWLR (Pt. 364) 610.”
See,
15
also SAMBO PETROLEUM LTD & ORS v. UBA PLC & ORS (2010) 6 NWLR 530 AT 531, SPRING BANK PLC v. DOKKIN-VENTURES NIGERIA LTD (2012) LPELR-7983 and GRAND SYSTEM PETROLEUM LIMITED & ANOR v. ACCESS BANK (2013) LPELR-22356 (CA).
The essence of adopting the above course is to avoid the danger of an Appeal Court holding a contrary view on the materiality of the issue which was not considered. The point is not whether considering the issue not pronounced upon would have changed the decision of the trial Court or not as argued by the learned Counsel to the respondents, who also proffered the same argument under issue one to the effect that the error of the trial Court in evaluating the evidence in Chief of a prospective witness who did not testify in Court and was not cross examined, also the attribution of evidence on oath and cross examination in Court of one witness to another who did not testify, would not have affected the judgment of the trial Court. This argument is not tenable in law, in that parties must be given opportunity to present their case on level grounds before a decision is taken over their case to avoid denial of fair hearing.
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Three issues were raised and argued by the learned Counsel to the appellants in the trial Court, his issue three concerning the right of occupancy issued to the respondents by Irepodun Local Government was not pronounced upon, this is erroneous on the part of the learned trial judge and in my humble view has occasioned a miscarriage of Justice. This cannot be ignored as urged by Chief Olorunnisola. On this note, I resolve issue four in favour of the Appellants.
Having resolved issue one and four in favour of the appellants, there would be no need to look into issues two and three in detail, both are on the evaluation of evidence by the trial Court, these issues have been resolved in course of the resolution of issues one and four in favour of the appellants.
The appellants in their reliefs sought from this Court had urged us to allow the appeal, set aside the judgment of the trial Court and enter judgment for the appellants.
Having held that there was error and inbalance in the evidence reviewed and utilized by the trial Court and having also held that the trial Court was duty bound to pronounce on the appellants’ third issue before the
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trial Court, this Court cannot utilize the same incomplete evidence so as to say to enter judgment in favour of the Appellants.
In the present circumstance, I allow the appeal and hold that it is meritorious. The judgment of the learned trial judge in Suit No: KW/OM/11/2009 delivered on 28th day of June, 2013 is hereby set aside.
It is hereby ordered that this case be remitted to the Chief Judge of Kwara State for re-trial de novo by any Judge of the Kwara State High Court, other than M. Abdulgafar, J of the same Court.
Parties to bear their respective costs.
MOHAMMED LADAN TSAMIYA, J.C.A.: I read before now the judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with and adopt the reasoning and conclusions that the Appeal is meritorious and ought to be allowed. I too allow it, and set aside the Judgment of the trial Court delivered on 28/6/2013. I adopt all the consequential Orders made in the lead Judgment.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read the draft of the leading judgment just rendered by my learned brother Chidi
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Nwaoma Uwa, JCA. I agree with the entire reasons therein and the conclusion that the appeal is meritorious.
I allow the appeal and subscribe to all the consequential orders made in the judgment.
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Appearances
A. Y. Abolarin For Appellant
AND
O. T. Olurunisola with him, O. O. Adeyemi (Miss) For Respondent