GOLDIE EKASA & ORS v. ALUMINIUM SMELTER CO. OF NIGERIA PLC (2014)

GOLDIE EKASA & ORS v. ALUMINIUM SMELTER CO. OF NIGERIA PLC

(2014)LCN/7672(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of March, 2014

CA/C/205/2011

RATIO

STATUTE; WHETHER STATUTES HAVE NO RETROSPECTIVE EFFECT PARTICULARLY WHERE A CONSTITUTIONAL AMENDMENT DOES NOT DECLARE IT SO

The Courts, in a plethora of cases, have held that a statute has no retrospective effect particularly where a constitutional amendment does not declare it so. See University of Ilorin Teaching Hospital V. Akilo (2000) 22 WRN page 117, (2001) 4 NWLR pt 703 page 246 Utih Vs. Onoyinwe (1991) 1 NWLR pt 166 page 166, 7Up Bottling Company Ltd V. Abiola & Sons Ltd (1996) 7 NWLR pt 463 page 714, Ojokolobo V. Alamu (1987) 1 SCN PAGE 98, Afolabi V. Gov. of Oyo State (1985) 9 SC page 117, Stich V. Attorney General of the Federation (1986) 5 NWLR pt 45 page 107, University of Ibadan Vs. Ademo Lekun (1967) NSCC page 210. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE COURT NOT TO LEAVE ANY ISSUE OR ISSUES RAISED BY THE PARTY TO THE SUIT WITHOUT HEARING AND DETERMINING THE SAME BEFORE CONCLUDING THE CASE

The trial court in its judgment failed to deal with the question of whether the Appellants had been removed legally or otherwise. This is the contention of the Appellants that the judgment was vague, inconclusive and left the salient aspect of it unresolved. The judgment left room for doubt and speculation. See Yusuf V. Adegoke (supra) where the Supreme Court per Aderenu JSC held.

“…It is the principle of law stated by this court that all courts…must never leave any issue or issues raised by the party or parties to the suit without hearing and determining same before concluding the case.” See Alero Odetayo V. Bamidele (supra) where the Supreme Court held as follows:

“This court has in a number of occasions said that it is trite law that a court or even a tribunal should consider all issues for determination brought before it. To refuse to do so will tantamount to denial of justice or fair hearing particularly when the parties have not been heard on those issues.” In Oke & Ors Vs. Nwaogbaumya & Ors (supra) Ejiwunmi JSC (of blessed memory) held as follows:

“It is clearly the duty of an appellate court to consider the issues set out for determination by the parties before the court. It is an inescapable duty, and more so where as in this case all the issues required to determine the merit of the case of the appellants have been carefully set down in their brief…This was never considered in any shape or form by the lower court…It is therefore, in my view, manifest that the appellants cannot be said to have had a fair hearing before the lower court.” See Onafide Vs. Olayiwola (supra) Kotoye Vs. CBN (supra), Kato Vs. CBN (supra), Osasona V. Afayi (supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.

PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; WHEN CAN AN ORIGINATING SUMMON AVAIL THE PLAINTIFF

In general terms, originating summons is used for non-contentious actions, that is, those actions where facts are not likely to be in dispute. Where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff and he must come by way of writ of summons. In other words, an originating summon, will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute. Inokoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 SC, Osunbade V. Oyewunmi (2007) ALL FWLR (pt. 368) 1004 SC. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: JUDGMENT; WHAT A GOOD JUDGMENT SHOULD SET OUT AND WHEN AN ORDER OF RETRIAL WILL BE MADE

I cannot agree more to this assessment of the judgment complained of.

“A good judgment should set out the nature of the action before the court and the issue in controversy, review the cases for parties, consider the relevant laws raised and applicable to the case; make specific findings of fact and conclusion; and give reasons for arriving at those decisions.” Ciroma V. Ali (1999) 2 NWLR (pt. 590) 317 CA. The judgment appealed against has not been able to resolve all the issues placed before it by the parties. The consequence of such a failure by the trial Judge is to order a retrial. “An order of retrial will be made where a trial court failed in its primary duty of making findings of fact on issues joined in the pleadings and the evidence is such that an appellate court cannot make its findings and come to a decision on all relevant issues. Edjekpo V. Osia (2007) 8 NWLR (pt. 1037) 635 SC. per. UZO I. NDUKWE-ANYANWU, J.C.A.

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. GOLDIE EKASA
2. UBONG AKRO
3. INEMA AKPADIKIARI
4. OTOABASI EKPO
5. CHARLES FRANK
(Suing in a representative capacity for Themselves and on behalf of 71 other security staff of ALSCON)Appellant(s)

AND

ALUMINIUM SMELTER CO. OF NIGERIA PLC (ALSCON)Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at Ikot Abasi Division delivered on 16th of May, 2011.

The Appellants as Plaintiffs at the Lower Court brought this action by originating summons and raised the following questions for determination by the court:

1. Whether the Plaintiffs who were appointed and employed by the Defendant with valid letters of employment and who have since employment in the service of the Defendant been performing their duties diligently and satisfactorily without any suspension order, termination of appointment or retirement in the service of the Defendant being communicated to them are presently not staff or employees of the Defendant.

2. Whether the neglect, refusal and or failure by the Defendant to pay the Plaintiffs their salaries, allowances, emolument and other entitlements without any justifiable reason does not amount to a breach of the Plaintiffs’ right to work. Put in another words, whether the Plaintiffs as employees/staff of the Defendant are entitled to payment of their salaries, allowances, fringe benefits and other emoluments with effect from 1st April, 2007 when same were wrongfully and illegally withheld from April, 2007 up till today.

The following reliefs were sought:

1. A Declaration that the Plaintiffs whose names are stated on Exhibit A are still in the employ of the Defendant company and are thus entitled to salaries, allowances, fringe benefits and other prerequisites with effect from 1st April, 2007 up to date, their appointments having not been terminated.

2. An Order directing the Defendant to accord the Plaintiffs all their rights, privileges and settlements as staff of the Defendant including instant and immediate payment of arrears of salaries, allowances and other prerequisites from 1st April, 2007 to date and beyond as long as they remain employees of the Defendant.

3. One Hundred Million Naira (N100m) as general damages for unlawful and wrongful interference with the Plaintiffs’ employment.

After adoption of written addresses by both counsel, the learned trial judge delivered his considered judgment, declaring that the Plaintiffs’ termination of appointment should have been done by a written notice, rather than by an oral notice.

The trial Judge held inter alia:
That the Defendant was liable to pay the Plaintiffs’ one month salary in lieu of notice as stipulated in Clause 17 of Exhibit D.

That the Plaintiffs were in the circumstances not entitled to damages but cost assessed at N15,000.00 against the Defendant.

The Plaintiffs were dissatisfied with the judgment and filed a Notice of Appeal on 5th July, 2011 containing four grounds. Appellants’ Counsel in arguing this appeal distilled four issues for determination. They are set out as follows:

(1) Whether failure, refusal and or neglect by the learned trial Judge to consider, resolve and make specific pronouncement on the issues brought before him for determination by the plaintiffs/appellants did not occasion injustice and or denial of fair hearing to the plaintiffs/appellants?

2. Whether the findings, observations, deductions and the entire judgment of the learned trial Judge was not perverse thereby occasioning a miscarriage of justice to the plaintiffs/appellants?

3. Whether the learned trial Judge did not err in law when he granted a relief not sought or asked for by any of the parties?

4. Whether failure by the learned trial Judge to properly assess and evaluate the evidence adduced at the trial did not render the judgment perverse and thus occasioned a miscarriage of justice to the plaintiffs/appellants?

The Respondent adopted the first two (2) issues articulated by the Appellants and proffered arguments on them. The Respondent also articulated two issues for determination. They are set out thus:

(i) Whether the Defendant’s Counsel had capacity to abandon paragraph 4c of the Counter Affidavit filed by the Defendant in suit No. HAB/29/2009 during adoption of his written argument.

(ii) Whether the trial court had jurisdiction to enter judgment in the case on 16th May, 2011, in view of the provisions of the Section 254(c) of the Amended 1999 Constitution which created the National Industrial Court to handle all employment matters.

The second issue bordered on the jurisdiction of the Court below to hear this matter. This issue is on jurisdiction and must, therefore, be dealt with expeditiously before going into the merits or demerits of the appeal.

Learned counsel for the Respondent submitted that the trial court had no jurisdiction to deliver the judgment on 16th of May, 2011 as the jurisdiction of the court had been ousted by Section 254 (c) (1) of the 1999 Constitution as altered. It provides:

“Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this “Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters:

(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, thereto or connected therewith.”

Counsel stated that the above enactment was made on 7th of March, 2011. Counsel submitted that by 7th of March, 2011, all employment matters that were pending in all other courts were no more competent. Accordingly, only the National Industrial Court was vested with jurisdiction to handle such matters. See Shell Petroleum Development Company (Nig) Ltd V. Abel/Isaiah & 2 Ors (2001) 87 LRCN page 1909, where the Supreme Court per Mohammed JSC held:

“…Once the jurisdiction of a court to determine a matter has been ousted any further hearing in the matter is indeed null and void because any decision it makes amounts to nothing”

Counsel submitted that in the instant appeal, the Respondent neither cross appealed nor filed a Respondent’s notice, hence, she cannot formulate issues outside the grounds filed by the Appellant.
Counsel therefore, urged the court to discountenance those two issues formulated by the Respondent.

Appellant’s counsel still went ahead to canvas the issue of jurisdiction articulated by the Respondent. Counsel submitted that a statute operated prospectively and not retrospectively. S. 254 (c) (1) of the 1999 Constitution (as altered) was made after the filing and hearing of the suit now on appeal. Counsel re-iterated that the law is that the jurisdiction of the court to entertain an action is determined by the state of the law conferring jurisdiction at the point in time the action was instituted and heard. See Lagos State Development Property Corporation V. Adeyemi Bero (2005) 8 NWLR pt 927 page 330 per Salami JCA (as he then was) held.

“The legal position is that the law applicable to a case or matter and therefore the jurisdiction and competence of the court is determined by the existing law or the law prevailing at the time the suit was filed not by the change of the existing law 3. It is immaterial that during the trial the law has been repealed.” See Alao V. Akano (1988) 1 NWLR pt 71 page 431, Ojoegbu V. Iheanodo (2001) 4 NWLR pt 703 page 219, Orthopedic Hospitals Management Board V. Garba & Ors (2002) 11 NSCQR page 141, Are Vs. Attorney General Western Region (1960) NSCC page 76.

Counsel urged the court to hold that Section 254 (c) (1) of 1999 Constitution (as altered) did not oust the jurisdiction of the Federal High Court, as this suit was filed on 27th of July, 2009 and judgment delivered on 26th of January, 2011, before the commencement of the National Industrial Court Act 2011.

This issue borders on the jurisdiction of the court to hear this suit and invariably this appeal. The jurisdiction of a court is of primary importance to the adjudication of a matter before it. The importance of jurisdiction cannot be overemphasized as it is fundamental and should be determined first by the court before starting any further proceedings.

The Respondent had challenged the competence of the court below to hear this suit after the commencement of the National Industrial Court Act 2011. After the alteration of Section 254 (c) (1) of the 1999 Constitution, the National Industrial Court Act took effect from 7th of March, 2011. Section 7 provides for the jurisdiction of the court in matters before it.

Section 11 (2) provides:

“Nothing in subsection (1) of this section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are Part-heard before the commencement of this Act and any proceedings in any such causes or concluded at the expiration of one year after the commencement of this Act shall abate”.

In the instant case, the suit was filed on 27th of July, 2009 and judgment delivered on 26th of January, 2011 before the amendment of the law complained of, came into effect. The amendment, therefore, has no effect on a matter, heard, concluded and judgment delivered before the commencement of the National Industrial Court Act 2011.

The court had jurisdiction to hear this appeal and the judgment delivered was delivered with jurisdiction. This issue is, therefore, resolved in favour of the Appellant. I will, therefore, go on to deal with issue one of the Appellant which is also one on jurisdiction i.e. fair hearing.

On issue 1 Counsel for the Appellants submitted that the learned trial judge did not resolve the issues and questions for determination before it. Rather, the trial Judge only rewrote the issues without resolving them.

He further submitted that the long settled principle of law is that the judgment of a court must be precise and specific. It must resolve all the issues posed for determination. This was not the case here. The judgment of the learned trial judge was vague, inconclusive and also left salient aspects of it to guesswork and speculation. See YUSUF v. ADEGOKE (2007) 30 NSCQR (PT. 1) 269 @ 297. ODETAYO V. BAMIDELE (2007) 30 NSCQR (PT 2) 915 @ 926-927.

Counsel for the Appellants submitted that refusal, failure and or neglect by the lower court to consider and resolve the issues placed before it for determination, denied the Appellants justice and fair hearing. The result is that there is a breach of the rule of fair hearing. This breach rendered the trial court’s decision null and void and of no effect. See EJEKA V. THE STATE (2003) 7 NWLR (PT 819) 408 @ 412, SALU V. EGEIBON (1994) 6 SCNJ (PT 2) 223 @ 228, GBAGARIGHA V. GEORGE (2005) 1 NWLR (PT 953) 163 @ 171 H.11.

Counsel urged the court to answer issue 1 in favour of the Appellants.

Respondent’s Counsel in reply submitted that if the Appellants had filled a Writ of Summons instead of an originating summons, the lower court would have been able to resolve the dispute. However, the trial judge neither mentioned Plaintiffs’/Appellants’ wrong procedure nor resolved it.

Counsel argued that the persons mentioned in Exhibit A are unaware of the case and neither gave their consent for the prosecution of this case. The court did not resolve nor mention that in its judgment.

Counsel also submitted that the court ignored all the issues raised by the Defendant in respect of their defence to issue 1. The Defendant/Respondent had contended that Plaintiffs/Appellants failed to tender the Employment Agreement. The court ignored that fact and failed to resolve issues raised by the Defendant/Respondent to that effect. He, therefore, failed in his duty. See ODUNUKWE V. OFOMATA (2011) 197 LRCN 175.

Counsel stated that if the trial judge had considered the issue of non-tendering of the agreement, it would have held that Plaintiffs/Appellants did not prove their case. This case would have been dismissed in Defendant’s/Respondent’s favour. See EFURIBE V. UGBAM (2011) ALL FWLR (PT 564) P. 39 R.6.

He urged the court to hold that the failure of the lower court amounted to a denial of fair hearing which nullifies the lower court’s judgment.

Both counsel for the parties argued that the trial Judge failed to resolve the issues placed before it.

The learned counsel to the Appellants submitted that the Appellants stated that they articulated two (2) issues for determination in the lower court thus:

Learned counsel argued that the learned trial Judge did not use the issues so articulated by the Appellants rather he articulated two issues for himself. These two issues did not cover the issues so articulated by both parties. The learned trial Judge answered or resolved the questions he articulated leaving unresolved those articulated by the parties.

In his submission, counsel to the Appellants stated that the nature of the employment between the parties was not in contention, and therefore not raised by any of the parties. This issue was raised suo motu by the court, and did not accord them the opportunity of being heard. This definitely occasioned a miscarriage of justice and breached the principles of fair hearing.

Counsel, finally in his arguments had urged the court to hold that a failure to resolve these issues has occasioned a miscarriage of justice and a breach of fair hearing.

It is true that this suit was initiated by originating summons.

The question to ask is whether this suit, as presently originated, can be satisfactorily adjudicated upon? There are so many issues that were not resolved by the trial Judge and so many issues that the affidavits could not resolve. That being the case, the trial Judge ought to have ordered pleadings.

When a suit is commenced by an originating summons instead of writ of summons the appropriate order to be made by the court is to direct the suit to proceed with the filing of pleadings.
However, if the facts are contained in an affidavit which has been controverted, the court has a duty to ask the parties to adduce oral evidence to resolve the issues in controversy.

The courts have held it is not really important how an action is commenced. The important thing is the question of justice of the case. See FGN V. Zebra Energy Ltd (2002) 18 NWLR pt 798 page 162, Famfa Oil Ltd V. Attorney General of the Federal (2003) 18 NWLR pt 852 page 453, Dapialong V. Lalong (2007) 5 NWLR pt 1026 page 199.

The mode of commencing an action can be an impediment to its just conclusion. What happens if as in this case there are many questions that can only be resolved by oral evidence of parties? The trial Judge would not be able to reach a just decision as there would be so many issues left unresolved. This case is one of those cases that are really hostile and cannot be resolved only by affidavit evidence.

In general, originating summons is used for non-contentious actions where facts are not likely to be in dispute.

In this action, the Defendant/Respondent alleged that the plaintiffs did not get the authority of the other supposed plaintiffs before embarking on this suit in a representative capacity.

“A representative is a person authorized, to act or speak for another or others. Thus, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wished to represent”
Okukuje V. Akwido (2001) 10 WRN page 1.

The burden is on the party seeking to sue in a representative capacity to prove his authority See Adikwu V. Comm. For Works, Enugu State (1997) 2 NWLR pt 489 page 588.

There is no formal document filed showing that the plaintiffs were suing in a representative capacity. Be that as it may, it is not fatal to the case as to vitiate the proceedings. The court cannot strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity Ogunyombo Vs. Ookoya (2002) 16 NWLR pt 793 page 224.

The learned trial Judge was not able to decide in his judgment whether, the employment of the plaintiffs have been determined, legally or illegally. If legal, what is the liability, if any, on the defendant/respondent? If illegal, what is the liability or otherwise of the defendant/ respondent.

The trial Judge held in his judgment thus:

Termination of appointment is too serious a matter to be treated orally.
It should have been a written notice and should have been served on the terminated employees personally for purposes of record. Since the defendant did not terminate these employees in the manner laid down in Exhibit D Clause 17, by giving the Appropriate notice, particularly as Exhibits 1-3 attached to the Counter affidavit are photocopies of a private document, the defendant is liable to pay them in lieu of notice as stipulated in Clause 17 of Exhibit D.

The plaintiffs are in the circumstance not entitled to damages though they are entitled to cost which I asses at N15,000.00 against the defendant.
This is the judgment of this Court.

With the above, the trial Judge did not categorically determine this matter. He failed to state whether the defendant/respondent was liable and to what extent.

These are the aspects both parties have complained about. The Plaintiffs/Appellants do not know whether they were successful with their case or not. The trial Judge did not determine whether the plaintiff/appellant’s employment had been determined one way or the other. The trial Judge did not determine whether an employment in writing can be determined by an oral termination. These are the questions the trial Judge failed to answer.

Where a trial Judge fails to answer and resolve issues placed before it, the Appellate court under Section 15 of Court of Appeal Act will resolve such issues.

Where there is sufficient material before an appellate court in respect of an issue which a trial court had failed to treat or advert its mind to, such issue, shall be resolved by the appellate court. An order of retrial will therefore not be necessary in such action. The State vs. Godfrey Ajie (2000) 7 SC (pt. 1) 24 at 30.

However, in this case, the Court of Appeal cannot do so because, there are not sufficient materials placed before the court. Earlier in this judgment, the court has found that the originating process did not make room for sufficient materials. There are so many questions begging to be answered. They can only be answered by the trial Judge exercising his discretion, by asking the parties to adduce oral evidence to resolve the issues in controversy. See Osunbede V. Oyewunmi (2007) ALL FWLR pt 368 Page 1004, Dapialong Vs. Lalong (supra) Falobi Vs. Falobi (1976) 9-10 SC page 1. There are indeed so many unresolved issues posed in the suit in the court below. These issues were some of the issues highlighted by both parties. The parties are dissatisfied with the judgment and rightly too.

The judgment in the words of the Appellants was

“vague, inconclusive and left salient aspects of it to guesswork, conjecture and speculation”

I cannot agree more to this assessment of the judgment complained of.

The judgment appealed against has not been able to resolve all the issues placed before it by the parties. The consequence of such a failure by the trial Judge is to order a retrial.

“An order of retrial will be made where a trial court failed in its primary duty of making findings of fact on issues joined in the pleadings and the evidence is such that an appellate court cannot make its findings and come to a decision on all relevant issues. Edjekpo V. Osia (2007) 8 NWLR (pt. 1037) 635 SC.

An appellate court is always reluctant to order a retrial.
However, where the parties have not placed enough material for the Appellate court to use and determine this matter finally, it will order a retrial.

This issue is, therefore, resolved in favour of the Appellants as the court failed in its primary duties to resolve all issues placed before it. This invariably means that the trial Judge did not accord the parties a fair hearing of their matter.

This appeal is allowed. The suit is hereby transmitted to the National Industrial Court for retrial.

CHIMA CENTUS NWEZE, J.C.A.: I had a pre-view of the draft of the leading judgment which my indefatigable Lord, Uzo I. Ndukwe-Anyanwu JCA, just delivered now. I, entirely, endorse my Lord’s reasoning and conclusion.

Unarguably, the judgment under appeal is a product of a scraggy and anaemic reasoning. Little wonder then why the appellant’s counsel characterised it as “vague, inconclusive and left salient aspects of it to guesswork, conjecture and speculation.”

Expectedly, different Judges adopt different approaches in their style of writing judgment, Woluchem v. Gudi [1981] 5 SC 291, 294, per Idigbe JSC. However, it must, always, be borne in mind that every standard judgment, irrespective of its approach, must bear out the following: (1) the appropriate description of the parties to the case (2) consideration of the nature of the claim and cause of action (3) appreciation of the issues in controversy which must be dealt with (a) proper reception of the evidence; proper evaluation of the said evidence and the ascription of probative value thereto (5) findings of facts supported by the evidence and the correct conclusions in fact and in law (6) in civil cases, the construction of an imaginary scale for weighing the accepted evidence on both sides for the purpose of determining on which side it tilts favourably (7) verdict/decision/judgment and consequential orders, where necessary, Okulate and ors v. Awosanya and ors (2000) 2 NWLR (pt 646) 530; Polycap Ojogbue v. Ajie Nnuba (1972) 1 All NLR (pt. 2) 226, 232; Mogaji v. Odofin [1978] 4 S.C. 91, 93; Bello v. Eweka [1981] 1 S.C. 101, 119; Woluchem v. Gudi (supra) at 294, 306, 309; Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 66; [1988] 1 NSCC 414, 424; Duru v. Nwosu (1989) 1 NWLR (pt. 113) 24, 35-36.
It is for this reason, and the more elaborate reasons, in the leading judgment that I, too, shall allow the appeal. I abide by the consequential orders in the leading judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in advance, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA. I agree with the reasoning and conclusions reached, in allowing this appeal.

In Xtoudos Services Nigeria Ltd vs. Taisli (W.A.) Ltd (2006) 6 S. C. 200, Ogbuagu JSC said:

“It is now firmly settled, that where a court of trial, fails to advert its mind to and treat all issues in controversy fully and there is insufficient material before the Appeal Court for the resolution of the matter, the proper order to make, is one of retrial. See the cases of Awote V. Owodunmi (1987) 2 NWLR (pt 57) 366 and Harrison Okonkwo & Anor. V. Godwin Udoh & Anor. (1997) 7 SCNJ 357 @ 359 – per Mohammed, JSC. In other words, a retrial may be ordered, in an appropriate case, even if the parties, do not ask for it. See the cases of Iyaji V. Eyigebe (1987) 3 NWLR (Pt 61) 523: (1987) 7 SCNJ 148 and A.K. Faddallah V. Arewa iles Ltd (1997) 7 SCNJ 202. Finally, where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such material issues, depends on the credibility of witnesses, the proper order to make, is that of a retrial. See Karibo & Ors. V. Grand & Anor. (1992) 3 NWLR (pt 230) 426: (1992) 4 SCNJ 12 and Musa Sha (Jnr.) & Anor. V. Da Rap Kwan & 4 Ors. (2000) 5 SCNJ 101 @ 120. It must be stressed that the decision to order a retrial, is definitely, at the discretion of an Appeal Court. See University of Lagos & Ors. V. Olaniyan & Ors. (1985) NWLR (Pt 1) 143: Imonikha & Ors. V. Attorney-General Bendel State & ors. (1992) NWLR (Pt 248) 396 @ 408 and National Bank of Nigeria Ltd V. P. B. Olatunde & Co. Nig. Ltd (1994) 4 SCNJ (Pt 1) 65 @ 76 – per Ogwuegbu, JSC.
An order of retrial is appropriate in the circumstance of this appeal.

For these reasons, and, for the more comprehensive reasons given in the lead Judgment, I also allow this appeal. I abide by the Orders made in the lead Judgment.

Appearances

For Appellant

AND

For Respondent