HON. UBA AHMED NANA & ORS v. HON ABDUL AHMED NINGI & ORS
(2018)LCN/12322(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of December, 2018
CA/J/139/2017
RATIO
COURT AND PROCEDURE: THE DOCTRINE OF STARE DECISIS
“By the doctrine of stare-decisis a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the Court considers subsequently are same or similar. See: NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) LPELR 44113 (SC); DR. UMAR ARDO V. ADMIRAL MURTALA NYAKO & ORS. (2014) LPELR-22878 (SC); NIGERIA AGIP OIL COMPANY LTD. V. CHIEF GIFT NKWEKE (2016) LPELR-26060 (SC). Where a lower Court holds itself bound by the decision of the apex Court on same or similar facts, an appellant’s grudge against the lower Court’s decision will be of no moment. See:DALHATU V. TURAKI (2003) 15 NWLR (PT. 843) 310; NOBIS-ELENDU V. INEC & ORS (2015) LPELR-25127 (SC)” PER UCHECHUKWU ONYEMENAM, J.C.A.
INTERPRETATION: THE MEANING OF ‘TRIAL DE NOVO’
“By Wex Legal Dictionary, DE NOVO means ‘from the new’. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a ‘new trial’ by a different tribunal. The Latin word means ‘afresh’, ‘a new’, ‘beginning again’. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge’s findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of. This is the reason why it is a fundamental of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of ‘estoppel’. GIPPS V. GIPPS & HUME (1864) 11 H.L.CAS 1: 1861 – 73 ALL E.R.REP. 138; FADIORA & ANOR V. GBADEBO & ANOR (1978) LPELR 1224 (SC); OSONDU & ANOR V. NDUKA & ORS (1978) LPELR 2811 (SC). ” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. HON. UBA AHMED NANA
2. MUSA NANA
3. MURTALA AHMED NANA Appellant(s)
AND
1. HON ABDUL AHMED NINGI & ORS
2. ABDULRAZAK ZAKI
3. SHUAIBU GATI
4. DANLITI MAIGONJO
5. JAGWADO DAGU
6. ABDULRASHIR SABO
7. TA’UMMA NAGUJABA
8. JIBRIN SHA DUKA
9. DARINGEL GILAS
10. ADO S. DINGALA
11. SANI DAN MAIDAMO BURA ARANA
12. KWANCAM DINGALA Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
This appeal is against the interlocutory decision of the Bauchi State High Court, delivered on 24th May, 2016 by Mu’azu Abubakar, J. The Appellants are dissatisfied with the said decision hence this appeal filed on 7th June, 2016 pursuant to the leave of the Bauchi State High Court granted on the same day.
The Appellants commenced this case by a Writ of Summons. The matter proceeded to hearing before Yelim Bogoro, J. In the course of PW2’s testimony on 21st May, 2014 he identified some documents which were sought to be tendered in evidence through him but the Respondents’ counsel raised an objection as to the admissibility of the said documents. The documents were eventually rejected in evidence by the learned trial Judge Yelim Bogoro, J. on the ground that the said documents though pleaded were not referred to in the witness statement on oath of the witness and so were deemed abandoned. Subsequently Yelim Bogoro, J. transferred her service to the Federal High Court Bauchi and the case was re-assigned to Mu’azu Abubakar, J. and thus began de novo.
Upon the re-assignment of the case the Appellants filed a fresh application for the amendment of their statement of claim as in page 29 of the records. The Respondents filed a counter affidavit in opposition as in pages 37- 44 of the said records. The motion was fully argued and in his considered ruling the learned trial Judge refused the application to amend the statement of claim of the Appellants on the ground that the earlier decision of the Court refusing the application to amend was still valid and subsisting immaterial of the fact that the case was starting de novo. The ruling of the trial Court appealed against is at pages 51-54 of the main records.
By leave of the High Court of Bauchi State, the Appellant filed the Original Notice of Appeal found at pages 55 to 59 of the records. The original notice of appeal was amended on 6th November, 2017 pursuant to the leave of this Court granted on the same day. The appeal was heard on 29th October, 2018 whereupon M. A. TSUWA Esq. appeared for the Appellants while A. I. WAZIRI Esq. with S. A MOHAMMED appeared for the Respondents. Briefs duly filed were adopted by respective counsel who urged appropriately for the parties. In the Appellants’ brief settled by M. A. TSUWA Esq., he raised 2 issues for the determination of the appeal. The 2 issues are:
1. Whether or not the case of EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 and that of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278 are capable of being in conflict since the two cases have fact which are not similar and whether the former case is applicable to the facts of the instant case.
2. Whether the instant application of the appellants to amend their statement of claim is in any way circumscribable by the earlier decision of the Bauchi State High Court differently constituted earlier refusing the application.
For the Respondents, A. B. MALLE Esq. in the brief he prepared formulated 4 issues as follows:
1. Whether the case of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278 is applicable to the facts in the instance case.
2. Whether the case of EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 and that of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278, are capable of being in conflict since the two (2) cases have fact which are similar and whether the former case (EYO V. EKPENYONG) is applicable to the facts in the instance case?
3. Whether the case of EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 and that of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278 being in conflict the Learned Trial Judge was right to have relied on EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 being the latest in time in refusing the Appellants application to the amendment of their statement of claim.
4. Whether the instant application of the Appellants to amend their statement of claim is in any way circumscribable by the earlier decision of the Bauchi State High Court differently constituted earlier refusing the application.?
For the obvious reason that the appeal is the dissatisfaction of the Appellants, I shall adopt the issues they have distilled herein for the determination of this appeal. Moreover issues 1, 2 and 3 of the Respondents’ are same as the Appellants’ issue 1 while, the Appellants’ issue 2 is the same as the Respondents’ issue 4; accordingly, the resolution of the Appellants’ two issues will as well resolve the Respondents’ issues.
SUBMISSIONS ON ISSUE 1
Whether or not the case of EYO V. EKPENYONG (2012)11 NWLR (PT. 1311) 316 and that of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278 are capable of being in conflict since the two cases have fact which are not similar and whether the former case is applicable to the facts of the instant case.?
Mr. Tsuwa, learned counsel for the Appellants answered this issue in the negative. He submitted that the case of EYO V. EKPENYONG (Supra) and that of BAKULE V. TANEREWA (Supra) are not capable of being in conflict since the facts and circumstances of the two cases are different and diametrically opposed to each other thus the case of EYO V. EKPENYONG (Supra) is not applicable to the facts and circumstances of the instant case and so does not constitute a binding precedent to it. He submitted on when a decision of a superior Court will have a binding effect on a Court under its hierarchy relying on: OLADEJI V. N.B. PLC (2007) 1 SCNJ 375 AT 388; UWAOKOP V. U.B.A. PLC (2013) ALL FWLR (PT. 690) 1316 AT 1348 – 1350; LABOUR PARTY V. I.N.E.C. (2013) ALL FWLR (PT. 670) 1386 AT 1395 PARAS D – H; EKWENUGO V. FEDERAL REPUBLIC OF NIGERIA (2001) FWLR (PART 63) 99 AT 114; ACTION CONGRESS V. JANG (2009) ALL FWLR (PART 467) 156.
The learned counsel urged that the case of BAKULE V. TANEREWA (Supra) is similar and on all fours with the facts of the instant case and ought to have been applied and followed by the trial Court to grant the instant application of the Appellants. He summarized the facts of the case of BAKULE V. TANEREWA (Supra) to buttress his argument. On the other hand, the learned counsel referred to the case of EYO V. EKPENYONG (supra); to submit that the facts are not only different from the instant suit leading to this appeal but also that the EYO V. EKPENYONG (supra) case being an election matter is sui generis. He cited authorities to support the sui generis nature of election matters.
Finally, the learned counsel cited the case of BABATUNDE V. PAN ATLANTIC (2007) 4 SCNJ 140 AT 163; a Supreme Court decision on the import of a matter starting de novo. He also relied on: NGIGE V. OBI (2012) ALL FWLR (PT. 617) 738. Consequently, he urged the Court to hold that the decision of the trial Court was perverse. He relied on: ADEDARA V. AROWOLO (2014) ALL FWLR (PT. 761) 1536 AT 1569.
Mr. Tsuwa thereafter urged the Court to resolve the issue for determination in favor of the Appellants and thus allow the appeal, set aside the decision of the learned trial Judge and in its place grant the application of the Appellants to amend their statement of claim.
In response, Mr. Malle learned counsel for the Respondents answered this issue otherwise and submitted that the case of BAKULE V. TANEREWA (Supra) is not only inapplicable but also irrelevant to the facts and issues in the instance case. The learned counsel summarized the facts and circumstances of the suit leading to this appeal and the case of BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278; to submit that the doctrine of stare decisis does not arise as facts of the two cases are clearly distinct.
Mr. Malle went further to examine the facts and decisions of the cases of EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 and THAT OF BAKULE V. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278); and submitted that from the facts of the 2 cases, they are similar as the 2 cases bother on whether orders made by one trial Court in a matter remain valid and subsisting even when the matter starts de novo before another Judge of the same Court. He urged the Court to discountenance the argument of the learned counsel of the Appellants on the question as to whether the case of EYO V. EKPENYONG (Supra) is applicable to the facts of the instance case.
The learned counsel contended that the case of EYO V. EKPENYONG (Supra) is applicable to the facts of this case as the two cases have the same facts and issues and, that in law for the principle of stare decisis to apply, the facts of the two cases need not be on all fours in the sense of exactness or exactitude. He relied on:OLADEJI V. N.B. PLC. (2007) 1 SCNJ 375; MOHAMMED V. M. E. CO. LTD. (Supra).
He submitted that since the facts of the case of EYO is similar to the facts of the instance case, the trial Court is bound to follow it and was right to have followed and applied it in the instant case. He referred to: IDONIBOYE OBU V. NNPC (2003) 05 LRCN PG. 280; SULEIMAN V. COP (2008) VOL. 162 LRCN PAGE 155.
On the sui generis nature of EYO V. EKPENYONG (Supra) being an election petition case, Mr. Malle submitted that it is a misconception of the principle of stare decisis. He argued that the Court in EYO’s case did not say or base its decision on the ground that the matter before it was an election petition, but rather the Court reiterated the laid down general law that when a matter starts de novo all orders made in the previous proceedings remain valid and subsisting and can only be challenged on Appeal without specifically stating that this principle is in respect of election petition or making reference to Electoral Act or any other Electoral Law.
Furthermore, the learned counsel contended that, if at all the case of BAKULE V. TANEREWA (NIG.) LTD. (Supra) is relevant to the instant case being the decision of the Court of Appeal, it is in sharp and clear conflict with another Court of Appeal decision in EYO V. EKPENYONG (Supra). This being the case and for the fact that the two cases (Supra) decided the issue or effect of an order of Court when the matter starts afresh or de novo; the learned trial Judge acted rightly in law when he relied on the decision of EYO V. EKPENYONG (Supra) being the latest in time than BAKULE V. TANEREWA (NIG.) LTD. (Supra). He cited: BOB MANUEL V. WOJI (2010) 8 NWLR (PT. 1196) 260; MOHAMMED V. M.E CO. LTD. (2010) 2 NWLR (PT. 1179) 473; OSAKUE V. F.C.E ASABA (2010) 10 NWLR (PT. 1201) 1.
He urged the Court to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 1
By Wex Legal Dictionary, DE NOVO means ‘from the new’. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a ‘new trial’ by a different tribunal. The Latin word means ‘afresh’, ‘a new’, ‘beginning again’. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge’s findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of. This is the reason why it is a fundamental of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of ‘estoppel’. GIPPS V. GIPPS & HUME (1864) 11 H.L.CAS 1: 1861 – 73 ALL E.R.REP. 138; FADIORA & ANOR V. GBADEBO & ANOR (1978) LPELR 1224 (SC); OSONDU & ANOR V. NDUKA & ORS (1978) LPELR 2811 (SC).
In ROE V. R.A. NAYLOR LTD. (1918) 87 L.J.K.B. 958, the Court of second trial refused to admit in evidence some findings made by the Court of first trial as it was of the view it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady M.R. observed:
Counsel for the Appellants sought to rely upon some findings of the Judge in the first trial of the action. In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial See: GRAY V. DALGETY & CO. LTD. (1916) 21 C.L.R. 509; VENN V. TEDESCO (1926) 2 K.B. 227.
This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: “In new trials, the case must be reproved de novo, and the evidence and verdict given, and the Judge’s findings at the first trial are inadmissible. This meaning and purport of a de novo trial can by no means be thwarted.
The issue here is whether the decisions of this Court in EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316; and BAKULE V. TANEREWA (NIG) LTD (1995) NWLR (PT. 380) 278); are in conflict and whether the decision in EYO V. EKPENYONG (supra) is applicable to the suit leading to this appeal. In the case of BAKULE V. TANEREWA (NIG) LTD (supra) the Respondent who was the Plaintiff in the High Court of Kano State sued the Appellant and the case was assigned to Tijjani Abdullahi J. before whom the Appellant filed application to strike out the matter for want of jurisdiction. Tijjani J. refused the application but could not dispose of the matter before he was transferred to High Court Jigawa State and the case was assigned to B.S. Adamu J. before whom the matter started de novo.The Applicant then filed similar application he had earlier filed before Tijjani Abdullahi J., B.S Adamu J. did not consider the application filed by the Appellant challenging the jurisdiction of the Court but went ahead and considered the substantive matter. On Appeal the Court of Appeal held as follows:
“The effect of starting a case afresh before another Judge is to sweep clean all previous proceedings in the case. Any of the parties therefore is free to bring afresh any application brought before the previous Judge and in which he gave an adverse ruling against that party. ODI V. OSAFILE (1987) 2 NWLR (PT.57) 210 AT 512 referred to, followed and applied) (P.738, para. C) per MOHHAMED, J.C.A. at page 738, paras, F-H:”
On the other hand, in the case of EYO V. EKPENYONG (Supra) the Appellant contested with the Respondent in the election into the MBO State Constituency of Akwa Ibom State and the Respondent was declared winner of the Election by the 3rd Respondent (INEC), and dissatisfied with the declaration of the result in favour of the 1st Respondent, the Appellant filed a petition before Election Petition Tribunal sitting in Uyo, Akwa Ibom State challenging the declaration of the 3rd Respondent as the winner. Upon motion ex-parte by the Appellant the tribunal granted his prayer and ordered that the Forms TF007 and TF008 issued by the Tribunal Secretary be deemed as properly issued by the Tribunal. Subsequently, the Tribunal transferred the Appellants Petition alongside other Petitions to another Tribunal called Panel 2 and after issuance of Hearing Notices to the parties, Panel 2 raised the issue of its competence to hear the petition and after addresses by counsel, the Tribunal (Panel 2) held that it has no jurisdiction to hear the petition. Dissatisfied, the Appellant filed an Appeal before Court of Appeal and contended among others that Tribunal Penal 2 does not have jurisdiction to upturn Orders made by Tribunal Panel 1 as both are Court of competent jurisdiction. In allowing the appeal unanimously the Court held thus:
Ratio 3: “De novo’ means starting a hearing afresh. All processes previously filed and orders remain valid. Orders can be challenged on appeal to a higher Court.
Therefore, when a trial is starting de novo, it does not mean that processes already field would be filed afresh. (p. 323, para C)”.
Ratio 4: “A Court or tribunal cannot sit on appeal over decisions or orders of a Court or tribunal of coordinate jurisdiction.
Per EKO, J.C.A.(as he then was) at page 324, paras. B-C:
“My answer is that panel No. 2 does not possess that power to act as an appellate tribunal over in the same matter when the matter started de novo before Panel No. 2; the said panel No. 2 is functus officio in the circumstance. It has not been shown that the orders made previously by panel No. l which panel 2 purportedly set aside were made by panel No. l ultra vires its powers or that the orders were manifestly illegal and therefore void ab initio.”
The facts in both cases are similar to the extent that in each of them the Appellants had respectively sought the grant of an application earlier refused in the first trials that subsequently started de novo in the cases of EYO V. EKPENYONG (supra) and BAKULE V. TANEREWA (NIG) LTD. (supra). In the referred cases, the issue bothered on whether an order made by a first trial Court in a matter remains valid and subsisting even when the matter is heard afresh or de novo by another Judge of the same judicial hierarchy.
The facts and issue are similar except that the circumstances of the two cases however seem different in that; while EYO V. EKPENYONG (supra); is an election petition case, BAKULE V. TANEREWA (NIG.) LTD. (supra) is a civil matter. It follows that the instant case is on all fours with the case of BAKULE V. TANEREWA (NIG.) LTD. (supra) which is also a civil matter. By the decision of this Court in BAKULE V. TANEREWA (NIG.) LTD. (supra), the effect of starting a case afresh before another judge is to sweep clean all previous proceedings in the case in which case any of the parties thereto is free to bring afresh any application brought before the previous judge and in which he gave an adverse ruling against that party. Importantly, let me refer to the voice of the full Court of this Court in NGIGE V. OBI (2012) ALL FWLR (PT. 617) 738 AT 757 – 758; where the Court positioned as follows:
“Trial or hearing de novo means trying a matter anew, the same as if it had not been held before and as if no decision had been previously rendered. It is a new hearing or a hearing for the second time contemplating an entire trial in the same manner in which the matter was originally held and a review of previous hearing. On hearing de novo, the Court hears the matter as a Court of original and appellate jurisdiction. It means nothing other than a new trial. This further means that the Plaintiff is given another chance to re-litigate the same matter or rather in a more general sense the parties are at liberty to once more reframe their case and restructure it as each may deem fit appropriate.
The judicial effect or consequence of a case starting de novo before another tribunal is to render null and void all previous and pending proceedings and orders made in the case before the order of de novo was made.”
By the doctrine of stare-decisis a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the Court considers subsequently are same or similar. See: NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) LPELR 44113 (SC); DR. UMAR ARDO V. ADMIRAL MURTALA NYAKO & ORS. (2014) LPELR-22878 (SC); NIGERIA AGIP OIL COMPANY LTD. V. CHIEF GIFT NKWEKE (2016) LPELR-26060 (SC). Where a lower Court holds itself bound by the decision of the apex Court on same or similar facts, an appellant’s grudge against the lower Court’s decision will be of no moment. See:DALHATU V. TURAKI (2003) 15 NWLR (PT. 843) 310; NOBIS-ELENDU V. INEC & ORS (2015) LPELR-25127 (SC).
There is no doubt that the trial Court by the doctrine of stare decisis was bound to follow the decision of this Court, but the issue is which amongst the conflicting judgments was it supposed to follow. Where a Court lower in judicial hierarchy is faced with two conflicting decisions of a higher Court which by the principle of stare decisis it is bound by its decision, the position of the law is clear, the said Court is bound to follow the decision that is later in time as the right position of the law. See: BOB MANUEL V. WOJI (2010) 8 NWLR (PT. 1196) 260; MOHAMMED V. M.E CO. LTD. (2010) 2 NWLR (PT. 1179) 473; OSAKUE V. F.C.E ASABA (2010) 10 NWLR (PT. 1201) 1.
The learned counsel for the Respondents had argued that the trial Court was right to follow the case of EYO V. EKPENYONG (supra), as the same was the later in time. The flaw in this argument lies in the fact that the full Court of the Court of Appeal in NGIGE V. OBI (supra); decided the same year with the case of EYO V. EKPENYONG (supra) held contrary to the decision of the Calabar Division of this Court in EYO V. EKPENYONG (supra). The effect of the Full Court decision of this Court, firstly on the Court and consequently on the lower Courts is that when there is a decision of the Full Court of the Court of Appeal, its decision as opposed to any conflicting decision of the Court, is the judgment of the Court of Appeal. It is the said judgment that will have binding effect on both the Court and lower Courts. The principle of stare decisis is a rule of adherence to judicial precedents. It postulates that when a point or principle of law has been officially decided or settled by a ruling or pronouncement of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the tribunal, or by those who are bound to follow its adjudications, unless there be urgent reasons and in exceptional cases.
KASSIM V. STATE (2017) LPELR 42586 (SC).
The cases of EYO V. EKPENYONG (supra) and BAKULE V. TANEREWA (NIG) LTD. (supra); bother on the effect of a decision made by a Court of first trial in a matter which is later heard de novo by another Court of coordinate jurisdiction. This Court in EYO V. EKPENYONG (supra) said any previous decision or order made by a Court of competent coordinate jurisdiction which has not been set aside on appeal subsists in a later adjudication de novo. On the other hand, in the case of BAKULE V. TANEREWA (NIG.) LTD. (supra), it was held by this Court that decisions and orders made by a Court in a matter which later starts de novo before another Court of competent coordinate jurisdiction are not in existence and are lifeless in the fresh trial. The apex Court decisions on matters tried de novo is to the effect that when a matter is tried de novo, decisions and orders made in the first trial are wiped clean. They cease to exist and are therefore lifeless. The de novo trial comes clean and clear as if there has never been any trial let alone decision or order of any sort on the matter in the first trial.
FADIORA & ANOR V. GBADEBO & ANOR (1978) LPELR 1224 (SC); OSONDU & ANOR V. NDUKA & ORS. (1978) LPELR 2811 (SC); BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & ORS. (2007) LPELR 698 (SC); BIRI V. MAIRUWA (1996) 8 NWLR (PT. 467) 425; KAJUBO V. THE STATE (1988) LPELR 1646 (SC).
From what I have said above in line with the Supreme Court decisions, the decision of this Court in BAKULE V. TANEREWA (NIG.) LTD. (supra), is the position of the law on trial de novo in civil matters. I said, IN CIVIL MATTERS. What then is the effect of this on the decision of this Court in EYO V. EKPENYONG? Is the decision therein in conflict with the decision in BAKULE V. TANEREWA (NIG.) LTD. (supra). The answer is in the affirmative. Let me reiterate that the case of EYO V. EKPENYONG (supra) is an election petition matter in which time is of essence and the action sui generis. Election petition matters are soundly in their own class and akin to themselves. They are special proceedings completely separated and divorced from civil proceedings. They are governed by Electoral Acts and have rules regulating proceedings in the special Courts set up to hear election matters. Section 285 of the Constitution creates two election Tribunals – one is the National Assembly Election Tribunal under Section 285 (1) and the other is the Governorship and Legislative Houses Election Tribunal under Section 285 (2).
Let me note here that in each State the National Assembly Election Tribunal is one no matter the number of panels set up for quick disposal of the petitions arising from the state, this also goes for the Governorship and Legislative Houses Election Tribunal in States. Howbeit, with all these set uniqueness of Election Petition matters, the Full Court of this Court in an Election Petition case did not depart from the position of the law on matters tried de novo as pronounced by the apex Court in the cases referred to above. See: NGIGE V. OBI (supra). This indicates the fact that whether an action tried de novo is an election petition matter or civil matter; the principle of the law as laid down by the apex Court through the eyes of the cases referred to above, is the same. The learned counsel for the Respondents is in agreement with this obvious fact as shown in the Respondents? brief where he submitted thus:
“On the argument of the learned counsel to the Appellants that the case of EYO V. EKPENYONG (Supra) being an election petition case is said to be sui generis and does not apply to the instance case, we respectfully submit that this is a blatant misconception of the principle of stare decisis. The Court in EYO’s case did not say or base its decision on the ground that the matter before it is election petition, but rather the Court reiterated the laid down general law that when a matter starts de novo all orders made in the previous proceedings remain valid and subsisting and can only be challenged on Appeal without specifically stating that this principle is in respect of election petition or making reference to Electoral Act or any other Electoral Law and respectfully urge this Honourable Court to so hold.”
Whereas it has been agreed that the case of EYO V. EKPENYONG (supra) was not decided by this Court based on its being an election petition matter, it follows that the facts and circumstances of the case of EYO V. EKPENYONG (supra); and BAKULE V. TANEREWA (NIG.) LTD. (supra); are the same with the instant case on appeal and the two referred decisions of the Court in conflict.
Consequently, by the decision of the Full Court in NGIGE V. OBI (supra); the decision of the Calabar division of this Court does not represent the decision of the Court of Appeal in issue of trial de novo in Election Petition Matters or in civil matters.The case of EYO V. EKPENYONG (supra) relied on by the trial Court to refuse the Appellants’ application to amend their pleadings is therefore in conflict with not only the case of BAKULE V. TANEREWA (NIG.) LTD. (supra); but with the decision of the Full Court of the Court of Appeal in NGIGE V. OBI (supra).
From what I said above, I hold that the two referred cases are in conflict and that the learned trial Judge was wrong when it relied on EYO V. EKPENYONG (supra) to refuse the application subject matter of this appeal instead of relying on BAKULE V. TANEREWA (NIG.) LTD. (supra) to grant the same.
I resolve issue 1 substantially in favour of the Appellants.
SUBMISSIONS ON ISSUE 2
Whether the instant application of the appellants to amend their statement of claim is in any way circumscribable by the earlier decision of the Bauchi State High Court differently constituted earlier refusing the application.?
The learned counsel for the Appellants answered the issue in the negative. He noted the reason why Y. S Bogoro, J. refused the earlier application of the Appellants to amend their statement of claim. He argued that by the reassignment of the case after the transfer of Y. S Bogoro, J. to another Judge, the case was to start de novo and so the slate was wiped clean of all the previous proceedings conducted before Y. S Bogoro, J. consequently the circumstances and facts which made Y. S Bogoro, J. to refuse the earlier application were no longer present and so the learned trial Judge was in error when he relied on the earlier decision of the Court as a basis for refusing the Appellants application for amendment. Mr. Tsuwa learned counsel for the Appellants submitted on the law of amendment of pleadings. He cited:AJILA V. LAWAL (2005) ALL FWLR (PT. 278) 1158; SANNI V. ABDUL-SALAM (2010) ALL FWLR (PT. 528) 966; N.D.I.C. V. ORANU (2001) FWLR (PT. 82) 1974; EKE V. AKPU (2010) ALL FWLR (PT. 510) 640; AZAZI V. ADHEKEGBA (2009) ALL FWLR (PT. 484) 1545.
He urged the Court to resolve the issue in favour of the Appellants and to allow the appeal on this ground.
Mr. Malle the learned counsel for the Respondents answered the issue in the affirmative contending that the instant application of the Appellants to amend their statement of claim in this case was circumscribed by the earlier decision of the Bauchi State High Court differently constituted (i.e. presided by Hon. Justice Y.S. Bogoro), wherein similar application for amendment was refused. The learned counsel?s argument is that this issue is not whether the Appellants could amend their statement of claim but whether the same Court that refused the application for amendment can still revisit the application for amendment which was refused earlier. He submitted that the Court had become functus officio and referred to:CBN & ANOR V. IGWILLO (2007) VOL. 147 LRCN PG. 913 AT 918 R6 ; SHANU V. AFRIBANK NIG. PLC. (2002) 101 LRCN PG. 1946 @ 1949 R.4 AND R.5; ASIYANBI V. ADENIJI (1967) 1 ALL NLR 82 AT P. 86; OLUROTIMI V. IGE (1993) 13 LRCN (PT. A) 741; (1993) 8 NWLR (PT. 311) 257; LAWAL V. DAWODU (1972) NSCC (VOL.7) 515.
He urged the Court to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 2
I adopt all that I said while resolving issue 1 to quickly answer the question posed in this issue in agreement with the learned counsel for the Appellant that the instant application of the Appellants to amend their statement of claim is not in any way circumscribable by the earlier decision of the Bauchi State High Court refusing the application. Since the matter started de novo before the trial Court, the proceedings, orders and every decision of the High Court of Bauchi State in the first trial in the eye of the law were wiped off. By hearing ‘de novo’ the trial Court was enjoined by judicial authorities to hear the matter as Court of original jurisdiction. The Court was required to do nothing other than a new trial. The implications is that the Appellants were given another chance to re-litigate the same matter, or rather, in a more general sense, the parties were at liberty, once more to reframe their cases and restructure them as each deemed necessary. See: BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & ORS. (2007) LPELR ? 698 (SC); BIRI V. MAIRUWA (1996) 8 NWLR (PT. 467) 425.
Accordingly, by the de novo trial, the trial Court was to hear the Appellants’ application to amend his pleadings as if the same application had never been heard before in the first trial. See: KAJUBO V. THE STATE (1988) LPELR 1646 (SC). In the instant case, the second trial Court was to start the matter on a clean slate as if no trial had ever been conducted in the first trial let alone orders or decisions reached on the case.
The principle of law for the grant of an amendment in pleadings is settled to the effect that an amendment of pleadings can be made at any time, before judgment. Notwithstanding the wide latitude, to ensure proper control and to avoid an abuse of the discretion; different considerations apply depending on whether the amendment is being sought before or after the close of the evidence by the parties. Before the close of evidence, amendment of pleadings is allowed to make evidence as may be called admissible, as evidence on an issue which was not pleaded is strictly inadmissible. But once the calling of evidence has been concluded, any amendment of the pleadings or claim can be justified or allowed only on the premise that evidence in support of it is already on record, so that it is necessary and in the interest of justice to allow the amendment in order to make the pleadings or the claim accord with evidence already on record.
The rationale of it is that such amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties. See: EZE V. ENE & ANOR. (2017) LPELR 41916 (SC); IMONIKHE V. A. G. BENDEL STATE (1992) 7 SCNJ 197; CCG (NIG.) LTD. & ANOR V. IDORENYIN (2015) LPELR 24685 (SC). Amendments are therefore more easily granted where the grant does not necessitate the calling of additional evidence or changing the character of the case on the ground that no prejudice would result from the amendment. See: LAGURO V. TOKU (1992) 2NWLR (PT. 223) 278.
At the trial Court where the matter started de novo, hearing had not commenced before the Appellants? application for amendment of their pleadings. The issue as agreed by the Respondents in their brief was not whether the application for amendment of the Appellant?s pleadings at that stage was grantable but that the same having been refused by the High Court of Bauchi State at first trial before the de novo trial, the Court of second trial had no jurisdiction to grant the application. This position was adopted by the learned trial Judge who relied on EYO V. EKPENYONG (supra) to so hold. This was the sole reason for refusing the Appellants’ application to amend their pleadings in the de novo trial. Since I have earlier in the judgment held that the learned trial Judge was wrong in this decision, I am of the view that since no evidence had been given before the application, both parties were on even level and as such the amendment would not be prejudicial to the Respondents neither would it occasion any form of miscarriage of justice to the Respondents. The Appellants’ application was therefore wrongly refused by the trial Court as the same in law ought to have been granted.
Accordingly, I resolve this issue in favour of the Appellants.
In all I find merits in this appeal which therefore succeeds and is allowed. I consequentially set aside the decision of the High Court of Bauchi State in Suit No: BA/157/2013 delivered on 24th May, 2016:refusing the Appellants’ application to amend their pleadings. I hereby invoke the powers of this Court under Section 15 of the Court of Appeal Act CAP C36 Laws of the Federation of Nigeria, 2004 and grant the Appellants’ application for amendment in the following terms:
1. Leave is hereby granted the Appellants as Plaintiffs/Applicants in Suit NO: BA/ 157/2013; to amend their statement of claim in terms of the Proposed Amended Statement of Claim attached to the application filed before the trial court as found at pages 4 -9 of the records as Exhibit ‘MAT1′.
2. The Appellants’ amended statement of claim already filed as separate process on 4th June, 2014 is deemed properly filed and served on 20th December 2018, being the day of this judgment.
3. The case file to be remitted to the Chief Judge of Bauchi State for assignment to another Judge of the High Court of Bauchi State to hear and determine the Suit on the basis of the amended statement of claim.
4. I award a cost of N50,000.00 in favour of the Appellants.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA. My lord has thoroughly dealt with the issues in this appeal. I have nothing useful to add. I also allow the appeal and the order made therein.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity of reading the lead Judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusion reached therein. I only wish to add this little comment to buttress the findings by my learned brother on de novo trials.
The Black’s Law Dictionary Fifty edition defines “De novo Trial” in the following way.
“Trying a matter a new, the same as if it had not been heard before and as if no decision had been previously considered (Underline is mine)
In the light of the foregoing and applying the literal Rule of interpretation, it means whatever has been done before in form of trial is wiped off and the action is placed on a clean slate as if it has never been heard by any Court. It will therefore be right to say that the consequence of a denovo trial (O venire de novo) is that the whole suit should be tried a new and as if no trial had ever taken place. Whatever step that might have been taken by the former trial Court becomes otious. The fact that an order for a denovo trial is always made by a superior Court to the trial Court suggests that those findings in the former trial has been subjected to evaluation and a final judicial and judicious conclusion reached setting aside the trial and ordering fresh trial.
In view of the foregoing and the more articulate reasoning contained in the lead judgment of my learned brother, I agree that there is merit in this appeal and I too allow it. I abide by the consequential orders there in including that for cost.
Appearances:
M.A. Tsuwa, Esq. For Appellant(s)
A.I. Waziri, Esq. with him, S.A Mohammed For Respondent(s)
