MR. ILORI V. ALHAJI ISSA OLAROUNGBE UMAR & ORS. (2011)

MR. ILORI V. ALHAJI ISSA OLAROUNGBE UMAR & ORS.

(2011)LCN/4308(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of February, 2011

CA/IL/70/2009

RATIO

ASCRIPTION OF PROBATIVE VALUE AND EVALUATION OF EVIDENCE: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE ASCRIPTION OF PROBATIVE VALUE AND EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

RETRIAL: WHAT AN ORDER OF RETRIAL ENTAILS; CIRCUMSTANCE UNDER WHICH A COURT WILL ORDER A RETRIAL OF A CASE

We shall invite Ogwuegbu, JSC; to give us the answer as he did in the Supreme Court case of Uzochukwu v. Eri (1997) 51 LRCN 1792 at 1818 para. K. “The Appellants in the alternative urged us to make an order for a retrial. Such an order implies that one of the parties, usually the plaintiff, is being given another opportunity to re-litigate the same matter and before deciding to make such an order, an Appellate Court should be satisfied that the other party is not thereby wronged to such an extent that there would be a miscarriage of justice. See Ayoola v. Adebayo & Ors (1969) All NLR 154 at 159. An order for retrial is not appropriate where the plaintiffs wholly failed to prove their case.” PER IGNATIUS IGWE AGUBE, J.C.A.

INTERFERENCE WITH THE EVALUATION OF EVIDENCE: WHETHER AN APPELLATE COURT CAN EMBARK ON RE-APPRAISAL OF THE EVIDENCE PLACED BEFORE THE TRIAL COURT

In line with the submission of the learned counsel for the Respondents and the authorities cited, in the recent case of Military Governor of Ondo State v. Kolawole & 4 Ors. & 50 Ors. (2008) 35 NSCQR 506; Mohammad JSC; at 530 – 531 had held that:- “It s trite that when it comes to evaluation and ascribing of probative value to evidence placed before a trial Court, that court has the fundamental duty to do so. Rarely do appeal courts interfere except special circumstances are shown to exist. See Agbabiaki Saiba & Ors. (1998) 7 SCNJ 36; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.453) 12.” The above position taken by my Lord T. Mohammad, JSC; had earlier been supported by Oguntade, JSC; in his lead judgment in Onu v. Idu (2006) 6 sc 58 at 65/66; where the Supreme Court held that:- “The principles on which a Court of Appeal can interfere have been examined in so many authorities of this Court, and the law is so settled, that it has almost become trite … the basis of it all is that the trial court has the advantage of having seen the witnesses, an advantage which the Court of Appeal does not have limited as it is to the printed evidence. The presumption is that the findings of fact by the trial judge are right and the duty to displace such a presumption falls on the party challenging them.” Thus, the learned counsel for the Appellant was also on sound foundation when in support of his argument he cited Onisaodu v. Erewuju (2006) 7 SC (Pt 11) 45 at 57; where Tabai, JSC; was even more explicit on this fundamental principle when he posited inter alia:- “The established principle is that if there is proper evaluation of the evidence by the trial court in the sense that every material finding is supported by the totality of evidence on record, the appellate court has no business to embark on a re-appraisal of the evidence in order to arrive at a different convulsion. But where, the findings and conclusion are not supported by the totality of evidence on record, and the evidence is such that does not entail the assessment of the credibility of witnesses, the appellate court is in as vantage a position as the trial court to embark on a re-appraisal exercise to assess the party in whose favour the weight of evidence tilts. See Woluchem v. Gudi 1981 5 SC (Reprint) 178; (1981) 5 SC 291; Chief Salami Olatunde and Anor v. Salami Abiola Abidogun & Anor. (2001) 12 SC (Pt.11) 123; (2001) 18 NWLR (Pt.746) 712 at 722 – 723 and David Basil & Anor. Chief Lasisi Fajebe & Anor. (2001) 4 SC (Pt.11); (2001) 11 NWLR (Pt.725) 592 at 608 – 609”. PER IGNATIUS IGWE AGUBE, J.C.A.

DECLARATION OF TITLE: WHETHER THE PLAINTIFF MUST DEPEND ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE IN A CLAIM FOR DECLARATION OF TITLE

It is trite that in a claim for declaration of title the onus is on the Plaintiff to prove that he is entitled to the declaration sought and that in so doing, the Plaintiff must depend on the strength of his case and not on the weakness of the Defendant’s case. See Kodilinye v. Odu (1935) 2 WACA 366; Mora v. Nwalusi (1962) 2 SCNLR 73 at 75; Ajiboye v. Alhaji Ishola (2006) 6 SCNJ 180; Anwoyi & Ors. v. Shodeke & Ors. (2006) 6 SCNJ 1; Salami v. Lawal (2008) 36 NSCQR 1018 and Carrena & Anr. v. Akinlase & 11 Ors. (2008) 14 NWLR (pt. 1107) 262 at 282 – 284 paras. A – A. See also Section 137 of the Evidence Act. This is because the action for declaration would be dismissed where the Plaintiff: 1. Fails to prove his case by a preponderance of evidence; 2. Adduces competing and conflicting histories of ownership; or 3. Has led evidence which is not credible. See Ohigeri v. Akabeze (1992) 2 NWLR 1 SC and John Edokpolo v. Asemota (1994) 7 NWLR 315, CA. PER IGNATIUS IGWE AGUBE, J.C.A.

APPEALS FROM CUSTOMARY COURT: ESSENCE OF THE APPELLATE ACCORDING SOME LATITUDE TO THE DECISIONS OF CUSTOMARY COURTS

In Duru v. Onwumelu (2001) 92 LRCN 3148 at 3158; Uwaifo, JSC; delivering the lead judgment of the apex Court I stated the position of the law thus:- “It seems to me that an appeal court as well as a trial court called upon to make use of decisions of those courts should allow some latitude in regard to matters of procedure adopted by them in reaching those decisions so long as they are seen to have done substantial justice. See Dinsey v. Ossey (1939) 5 WACA 17 at 18 – 19 and Ikpang v. Edoho (1978) NSCC (vol. 11) 423 at 431 and Ojemen v. Momodu (1983) 1 SCNLR 188.” Still on the latitude to be accorded proceedings of Customary and Area Coutts by Appeal Courts, the Supreme Court again in Odofin & 1 Or. V. Jimoh Oni (2001) 5 NSCQR 67 at 85; per Achike, JSC; emphasized that superior Courts have continued to stress that greater latitude and broader interpretation must be accorded to decisions of Customary Courts as it is trite that the proceedings in the Courts are not subject to the Evidence Act. He also stressed that superior Appellate Courts in relation to matters relating to Customary Courts should focus their attention on the substance of the judgment or decision in those courts rather than form. In his exact words: “This is so because Customary Courts – be they Area Courts or whatever name they are christened in our various judicial jurisdictions – are generally presided over by laymen without even rudimentary exposure to legal principles. An appellate court should in all circumstances strive to get to the bottom of the decision of a Customary Court. This can only be achieved by considering the import of a decision of a Customary Court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its import in other words, when greater latitude is accorded to the interpretation of the decisions of Customary Courts it will be sufficient if such decisions are seen to accord with the view of persons of good common sense and reason completely devoid of legalistic encrustments.” See Nthan v. Bennieh (1931) AC 72; 1 WACA 1; per Lord Atkin. PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

MR. ILORI Appellant(s)

AND

1. ALHAJI ISSA OLAROUNGBE UMAR
2. HON. FOLORUNSHO ABDULKAREEM
3. MALLAM HAMMED ABIOLA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court Justice of Kwara State sitting in its Appellate jurisdiction over the judgment of the Upper Area Court sitting at Ganmo whereby the High Court ordered a retrial before another panel of the Upper Area Court. Dissatisfied with the judgment delivered on the 6th day of May, 2009, the Appellant through his counsel Toyin Oladipo Esq., filed a Notice of Appeal with four Grounds as contained at pages 116 to 118 of the Record of Appeal. Upon the Records being transmitted to this Honourable Court, parties were ordered to file their respect briefs which were duly exchanged in accordance with the Rules of Court.
The facts of the case as stated in the Appellant’s Brief are that sometime in 1994, the Appellant purchased ten (10) plots of land from the Adifa family of Ilorin, at the time one Jimoh Aduagba was the caretaker or supervisor put in charge of the Adifa family land. Payment of the purchase price for the land was made to the then Head of the Adifa family, late Momood Popoola through the said caretaker Jimoh Aduagba who testified as DW3 and whom the trial Upper Area Court found to be a dupe and liar. The surveyor of the Adifa family was said to have testified as DW2 to the effect that he witnessed the transaction.
An agreement in writing was also said to have been executed between the late Mamood Popoola and the Appellant in respect of the land and that pursuant to the agreement, the Appellant took possession of the said land and commissioned the Adifa family surveyor to survey same and Appellant planted palm trees and other economic crops thereon. He also established a block making industry on part of the land.
In 2008, the Respondents (Plaintiffs before the Upper Area Court) instituted action against the Appellant claiming title to the ten plots and injunction. At the hearing of the case, 2nd and 3rd Respondents testified in support of their case while the Appellant also testified and called three (3) witnesses. In the course of examination-in-chief of DW3 (Jimoh Aduagba), the then counsel for the Appellant (then Defendant) applied to the court to declare him a hostile witness which application the Upper Area Court refused.
In its judgment, the Upper Area Court awarded the land to the Respondent and being dissatisfied with that judgment, the Appellant appealed to the Appellate Session of the High Court of Kwara State on ten Grounds of which only one of the grounds (Ground 3) thereof which complained against the refusal of the Upper Area Court to declare DW3 as a hostile witness, was considered. The High Court thereafter sent the case back to the Upper Area Court for retrial by another panel, oblivious of the other nine (9) Grounds of Appeal.
The Respondents’ case on the other hand, is that they were the Respondents before the High Court {Appellate Session} and the Plaintiffs before the Upper Area Court Ganmo. According to them, they are members of Adifa family of Adifa Compound, Ilorin, Kwara State, The Adifa family is said to have an expanse of land situate, lying and being at Akata Area, Tanke, Ilorin, Kwara State which land extends to Oke-Ogun Village and Tanke Iledu Village.
It is their further case that the Appellant without notice, consent approval and or authority of the Respondents’ family entered part of the land covering ten plots and when in the year 2007, the Respondents discovered that it was he Appellant who entered part of their land, they requested the Appellant to vacate their family land but he refused. They, then on the 30th day of May, 2008, instituted a suit against the Appellant before the Area court III Pake, Ilorin claiming title to the land occupied illegally by the Appellant.
The suit was later at the request of the Appellant transferred to Upper Area court, Ganmo where it was determined by the court after taking evidence from the parties and their respective witnesses. The trial Upper Area court in the course of hearing the matter ruled based on the application of the Appellant that DW3 was not a hostile witness, (page 47 lines 15 – 25 of the Records) refers. At the conclusion of hearing, the trial court on the 20th day of February, 2009, delivered its judgment and granted all the Respondents’ prayers contained in their Summons (Page 1 of the record of proceedings). The Appellant being dissatisfied with the decision of the Appellate High Court filed a Notice of Appeal dated 15th day of May, 2009, to this Court.

In the Brief settled by Toyin Oladipo Esq., on behalf of the Appellant, four (4) issues were distilled from the four (4) Grounds of Appeal filed by the Appellant which are hereunder reproduced as couched inter alia:-
ISSUES FOR DETERMINATION
1. Whether the High Court was right by failing to consider or determine the other nine (9) grounds of appeal filed by the Appellant (Ground 3).
2. Whether the High Court was right by failing to evaluate the evidence adduced before the trial court and dismiss the case as the trial court ought to have done. (Ground 1).
3. Whether the High Court properly exercised its power to order a retrial.(Ground 2)
4. Whether the respondent proved their case before the trial Upper Area Court. (Ground 4)
As for the Respondents’ Brief settled by F.B. Fabiyi Esq. four (4) issues were equally formulated from the four (4) Grounds of Appeal couched the in following terms:-
ISSUES FOR DETERMINATION
(1) Whether the High court was right in holding that it is unnecessary to consider the other ground of appeal since the case will be tried a new (pages 114 lines 18 – 20 of the record). (Ground 1)
(2) Whether the High Court was right in holding that evaluation of evidence and the ascription of probative value to evidence is pre-eminently within the province of a trial Court that has the opportunity of seeing and hearing the witnesses as opposed to an Appellate Court that only deals with the cold record [Page 114 – 5 – 9 of the proceedings]. (Ground 2).
(3) Whether the High- Court was right in holding that the most appropriate order in the circumstance is an order of retrial of the case (Page 114 lines 16 – 17 of the record].(Ground 3)
(4) Whether the decisions of the Court is against the weight of evidence. (Ground 4)
When the appeal came up for hearing on the 25th day of November, 2010, Toyin Oladipo Esq., and Dr. B. A. Onipidan with A. A. Rabiu Esq., for the Appellant and Respondents adopted the Briefs of their respective parties. While the learned counsel for the Appellant prayed us to allow appeal, the learned counsel for the Respondents urged that the appeal be dismissed and the decision of the High Court affirmed.

ARGUMENT OF ISSUES
Before considering the argument of counsel, it is pertinent to observe that after a careful scrutiny, the issues formulated by the respective learned counsel for the parties are basically the same except that they are differently worded. Accordingly, I shall consider the issues together as formulated by the parties seriatim.
ISSUE NUMBERS ONE (1) OF THE APPELLANT AND RESPONDENTS: Whether the High Court was right by failing to consider or determine the other nine (9) grounds of appeal filed by the Appellant. (Ground 3) and Whether the High Court was right in holding that it is unnecessary to consider the other grounds of appeal since the case will be tried a new (pages 114 lines 18 – 20 of the record), (Ground 7).
Arguing Issue Number One (1) of the Appellant, Mr. Oladipo drew our attention to the Notice of Appeal to the appellate High Court dated and filed on 20/03/2009, with ten (10) Grounds from which the Appellant formulated the following six (6) issues at pages 69 to 73 of the Records.
1. Whether the Power of Attorney (Exhibit A) was properly admitted in evidence by the lower Court.
2. Whether the Respondents had locus standing to institute the action.
3. Whether the lower was right in refusing to declare DW3 as a hostile witness
4. Whether the lower court was right in placing reliance on the evidence of DW3.
5. Whether the Appellant proved that he purchased the land from the Adifa family.
He also alluded to the judgment of the High Court at pages 109 to 115 of the Records, which judgment considered only issue 3 – the issue dealing with the refusal of the trial court to treat DW3 as a hostile witness and which the Court below allowed. However, the learned counsel contended, the High Court neglected to consider the other five (5) issues on the ground that it was unnecessary to consider the other grounds of appeal because the case would be tried a-new. See page 114 of the record. It was then submitted that it is the duty of a court, especially one that is not the last or final court to deal with or consider and pronounce on all issues properly raised before it. On the holding of the High Court that it could not step into the shoes of the trial court to evaluate the evidence since it is within the province of the trial court to do that as opposed to an Appellate Court that only deals with the cold record; he referred us to the cases of Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131, Osondu v. Solel Boneh (2000) 5 NWLR (Pt, 656) 322 at 351 and Brawal Shipping v. Onwadike (2000) 6 SCNJ 508 at 522; to submit that failure of the Court to consider all the issues by the Appellant was in clear breach of the appellant’s right to fair hearing as guaranteed by the Constitution.
The learned counsel for the Appellant asserted further the facts of this case do not fall into any of the exceptions mentioned in cases like Etajata v. Obogbo (2007) 6 SC (Pt.11) 1; since the judgment appealed against is not a nullity and an order for retrial is not necessary. He argued further that the other five (5) issues legitimately raised by the Appellant in his Brief arising from the Grounds of Appeal cannot be said to have been subsumed under the issue that was considered as in the case of Onochie v. Odogwu (2006) 2 SC (Pt. 11) 753. He contended also that a consideration of one issue (issue of failure to declare a witness as hostile) did not dispose of the appeal, since the complaint of the Appellant among others was that the Respondents did not prove their case.
From the foregoing, the learned counsel for the Appellant maintained that the High Court failed in its duty to determine this issue but instead ordered that the case be sent back for retrial to enable the Respondents have a second bite at the cherry, as it were and to give them another chance to build their hopeless case, which is tantamount to double jeopardy for the Appellant, Insisting that the order for retrial was unnecessary; he urged us to note that the issue which the High Court decided was not the issue of jurisdiction which would have decided the appeal as in 7Up v. Abiola (2001) 6 SC 73. Finally on this issue, learned counsel submitted that a finding in favour of the Appellant in any of the other crucial issues in the appeal would have resulted in the dismissal of the Respondents’ case and that failure to decide on them has resulted in a miscarriage of justice, We were then urged to resolve Issue Number One (1) in the Appellant’s favour.

In response to the argument of the Learned counsel to the Appellant, Mr. Fabiyi for the Respondents submitted in the first place, that when an order for a retrial is necessary or the judgment is considered a nullity, there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action, as the case may be. He cited the Supreme Court case of Brawal Shipping v. Onwadike (2006) 6 SCNJ 508 at 522; where it was held that the Appeal Court is exempt from pronouncing on all the issues raised before it when an order of retrial is necessary or the judgment is considered a nullity.
Furthermore, he took the view on the authority of Onochie v. Odogwu (2006) 2 SC (pt. II) 153; that where the determination of a sole issue is sufficient to dispose of an appeal, it is not necessary for an appellate court to consider all the other issues raised in the appeal and argued per contra that the High court considered the necessity for a retrial in this case and did order for a retrial when the court held amongst others that in the peculiar circumstance of this case, they did not know and could not hazard a guess as to what the cross-examination of DW3 by the Appellant’s counsel would have brought out or the impression that the trial court would have drawn from that cross-examination. The learned counsel also recalled that the court below observed that they were also not able to say how all that would have reflected on the mind of the court as to the evaluation of the evidence of other witnesses and referred us to (Page 114 lines 10 – 20 of the Records).
He therefore insisted that it was unnecessary to consider the other grounds of appeal contained in the Appellant’s Notice of Appeal before the trial High court dated 20th day of May, 2009, since the consideration of issue 3 in the said Notice of Appeal necessitated that the case be tried a new.
Finally on this issue, it was submitted that Grounds 1, 2, 4, 5, 6, 8, 9 and 10 contained in the Appellant’s Grounds of Appeal to the High Court are issues that could arise at the retrial of this case and which the new Court that is to hear the case can consider and pronounce upon and accordingly, the non-consideration of Grounds 1, 2, 4, 5, 6,7, B and 9 of the Appellant’s Notice of Appeal dated 20th day of March, 2009, was not a breach of the appellant’s right to fair hearing because the retrial of this case before a newly constituted Upper Area Court will afford the appellant the opportunity to be heard on those issues since they are issues that could arise at the retrial. He therefore urged this Honourable Court to hold that the Appellate High Court was right in holding that it is unnecessary to consider the other Grounds of Appeal since the case will be tried a new.

RESOLUTION OF ISSUE NUMBER ONE
I have carefully considered the arguments of counsel on this issue and after a careful perusal of pages 69 to 73 of the Records, there is no doubt that the Appellant filed a whopping ten (10) Grounds of Appeal at the Appellate High Court and formulated 6 (six) issues as highlighted hereunder, thus:-
1. Whether the Power of attorney (Exhibit A) was properly admitted in evidence by the lower Court.
2. Whether the Respondents had locus standing to institute the action.
3. Whether the lower was right in refusing to declare DW3 as a hostile witness.
4. Whether lower court was right in placing reliance on the evidence of DW3.
5, Whether the Appellant proved that he purchased the land from the Adifa family.
I have also been privileged to have a perusal of pages 109 – 115 of the Records which contain the judgment of the Court below and in particular, where the court found at page 113 paragraphs 7 and 8 thereof that:-
“We think that the Appellant has done all that was required of him by applying to treat DW3 as a hostile witness, it was the trial court aided by the counsel for the Respondents at the lower court that misapprehended the law. Had the court allowed the Appellant to cross-examine him and discredit him, it would have been clear to them, that DW3 was a hostile witness. The trial court would not have had to wait till the end of the trial to discover that DW3 was rogue and a liar. We therefore allow this ground of appeal and hold that the trial court was in error when it refused the application to treat DW3 as a hostile witness. We therefore set aside the decision of the trial court dated 16th October, 2008 refusing to declare DW3 a hostile witness. The next point to consider is the consequential order that will follow the decision allowing the appeal against the decision of the trial court dated 16th October, 2008. This has become necessary because it is the nature of the order made that will determine the consideration or otherwise of the remaining grounds of appeal.”
In answer to the above question as to the consequential order that will follow the decision allowing the appeal against the decision of the trial court dated 16th October, 2008, since it is the nature of the order made that will determine the consideration or otherwise of the remaining grounds of appeal; the court at page 114 paragraphs 9 and 10 to page 115 of the Records gave the answer as follows:-
“We have given anxious consideration to the consequential order we ought to make in this case especially against the background of the request of the Appellant that this court should step into the shoes of the trial Court and evaluate the available evidence on the record.
The first point we want to make is that evaluation of evidence and ascription of probative value to evidence is pre-eminently within the province of a trial Court that has the opportunity of seeing and hearing of the witnesses as opposed to an Appellate Court that only deals with the cold records.
Furthermore, in the peculiar circumstances of this case, we do not know and cannot hazard a guess as to what the cross-examination of DW3 by the Appellant’s counsel would have brought out or the impression the trial court would have drawn from that cross-examination. We are also not able to say how all that would have reflected on the mind of the court as to the evaluation of the evidence of other witnesses. We therefore think that the most appropriate order in the circumstance is an order of retrial of the case. Having come to the conclusion that an order of retrial ought to be made, we consider it unnecessary to consider the other grounds of appeal since the case will be tried a-new. Consequently, the appeal is hereby allowed and the decision of the trial court dated 16th October, 2008 and 20th February 2009 are hereby set aside. It is hereby directed that the case be tried de novo by an Upper Area Court differently constituted. ”

In the argument of counsel for the Appellant, he has relied on the cases of Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131, Osondu v. Solel Boneh (2000) 5 NWLR (Pt. 656) 322 at 351 and Brawal Shipping v. Onwadike (2000) 6 SCNJ 508 at 522; to harp on the need and duty of a court particularly of intermediate or penultimate jurisdiction to consider and pronounce on all the issues properly raised before it. On that footing, he has cited the dictum of Uwaifo, JSC; in Brawal Shipping v. Onwadike (2000) 6 SCNJ 508 at 522; where the eminent and erudite emeritus Justice of the Supreme Court admirably posited on the state of the law on this vexed issue as has fallen for determination before us, inter alia:-
“It is no longer in doubt that this Court demands of and admonishes the courts to pronounce/ as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue decided by them could be faulted on appeal. It has made this clear in its observations in several cases including Oyediran v. Anise (1970) 1 All NLR 313 at 317; Ojobue v. Nnubia (1972) 6 S.C (Reprint) 127; (1972) 6 SC 27; Atanda v. Ajani (1989) 6 SC (Pt. 11) 87; 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) 9 – 10 SC 120; (1991) 7 NWLR (Pt. 205) 519 at 529; Katto v. Central Bank of Nigeria (1991) 11 – 12 SC 176; (1999) 9 NWLR (Pt 214) 126 at 146.
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 avoidable delay since it may become necessary to send the case back to the lower court for those issues to be resolved. The obvious exceptions are when an order for a retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the retrial or a fresh action, as the case may be. See further, the case of: Araka v. Ejeagwu (2000) 72 SC (Pt. 1) 99: (2000) SCNJ 206.”
The dictum of his Lordship, was re-echoed by Ogundare, JSC; in Osondu v. Solel Boneh (2000) 5 NWLR (Pt. 656) 322 at 351; while reacting to a similar procedure adopted by Ogebe, JCA; (as he then was) when the latter, while the case was in the Court of Appeal, in his lead judgment, held that since the question on the first issue had been answered in the affirmative, the issue disposed of the appeal before him and that he would not engage in an academic exercise in discussing the other issues, In the words of the emeritus Law Lord (of blessed memory):-
“This approach to the issues placed before the court is, to say the least, unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take, unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the Plaintiff finally succeeding. “See also Odunayo v. The State (1972) 8 – 9 SC 290 at 296. Per Sowemimo, JSC (as then was).
I am an avowed and ardent apostle of the dicta of their Lordships as above cited, if for nothing else, but for the fact that as an intermediate court, the Supreme Court or this Court on the bases of hierarchical structure of Courts, may overrule the position taken by the Appellate High Court on the only issue of the Upper Area Court’s refusal of the application to treat the DW3 as a hostile witness, to send back the case to the Upper Area Court for rehearing. This is because this Court or the Supreme Court would not be afforded the opportunity to pronounce on other issues raised by the Appellant since the Court below did not avail and in this case has not availed us of its opinion on the other five (5) issues raised by the Appellant in that court. Such rehearing may also constitute a waste of resources and the precious time of the Court, See the recent case of M.V. Arabella v. NAIC (2008) 34 NSCQR 1091 at 1122 – 1123; per Ogbuagu, JSC.
It is however the contention of the learned counsel for the Respondents relying on the same Brawal Shipping v. Onwadike (2000) 6 SCNJ 508 at 522 and Onochie v. Odogwu (2006) 2 SC (Pt. II) 153; that this case falls within the obvious exceptions as stated in the last arm of the judgment where the court below ordered for a retrial. The Court below had anchored its decision to order a retrial on the fact that it was not their duty to evaluate evidence and ascribe probative value to testimonies of witnesses which is the primary function of a Court of first instance.

There is no doubt that the court below stated the correct position of the law that ascription of probative value and evaluation of evidence are primarily the exclusive preserve of a trial Court. However, there are exceptions to the general rule that appeal courts are only confined to the bare and cold records of the trial court because Appellate Courts have no opportunity which the lower Courts have to hear and watch the demeanour of witnesses,
In Anyegwu v. Onochie (2008) 37 NSCQR 109 at 127 – 128; I.T. Mohammad, JSC; delivering the lead judgment of the Supreme Court restated the position of the law on the circumstances under which an appeal court can re-evaluate evidence of the parties, which are:-
1. Where the trial court’s evaluation of the evidence is clearly perverse.
2. The trial court drew wrong inferences from the totality of the evidence.
3. The trial court applied wrong principles of the law to accepted facts in the case.
See also Dumez v. Nwakhoba (2008) 36 NSCQR 885 at 906; per M. Mohammed, JSC; who lucidly expounded the current position of the law, thus:
“The law is trite that evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial which saw, heard and assessed the witnesses, although where the issue in controversy between the parties is simply a matter of inference to be drawn from established facts on record, not resting on the credibility of witnesses as a result of their demeanour in Court or impression of them by trial Court, an appellate Court is in as good a position as trial court to evaluate evidence on record.”
From the surrounding circumstances of the instant case, Issues 1, 4, 5 and 6 warranted the re-evaluation or at best assessment of the totality of the evidence of the witnesses or at least for the Appellate High Court to draw the necessary inferences from proved facts. In any case, where the DW3 had been declared a hostile witness by the Court below, the effect is that his evidence was an admission against the interest of the Appellant and unless explanations were given to the satisfaction of the Court due weight ought to be given to the evidence.
Ordinarily, once the application to treat the DW3 as a hostile witness succeeded, the rest of the procedure would have been consistent with a declaration of overt enmity between him and the Appellant who should have been allowed to cross-examine him (the Witness) through his Counsel in order to discredit him. See “K” Line Inc. v. K.R. Int. (Nig.) Ltd. (1993) 5 NWLR (Pt.) (292) 159 and Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 S.C. Furthermore, once the witness has been discredited then the Court could draw the necessary inference as to whose interest he was serving. See further Okonkwo v. The State (1998) 8 NWLR (Pt. 561) 210.
We shall come to that point anon. Having taken a cursory look at the Record of proceedings, it would appear that the court below truly abdicated its responsibility of reappraising the evidence where the Upper Area Court had considered the totality of the evidence and the documentary Exhibits tendered to give judgment to the Plaintiffs/Respondents. Suffice it to say that the pertinent question in this issue is whether going by the authorities earlier cited by learned Counsel on both sides, there was justifiable reason for the Court below to order a re-trial.
In attempting to answer that question, I shall be guided by the principle enunciated by Uwaifo, J.S.C. in the Brawal Shipping v. Onwadike (supra) and other decided cases. The learned eminent Law Lord had laid it down in the above cited case, that the obvious exceptions warranting a court not to proceed with consideration of other issues are where an order of retrial is a necessity or where the judgment is a nullity. Of course, I may as well add that in some circumstances where a Court holds that it has no jurisdiction it may desist from considering other issues since if an Appellate Court eventually sustains the position, the proceedings terminate in perpetuity. However, the Court may fall into the same risk of being overruled, in which case the appellate court may have to send back the case for retrial.
In Onochice v. Odogwu (2000) 2 S.C. (Pt. 11) 153 at 168 – 169, the Supreme Court, per Ogbuagu J.S.C. reemphasized that it is the dug of an intermediate Court to deal/consider and pronounce on all issues properly raised before it except in clearest of cases and that the breach of that duty may result to an order of rehearing in appropriate cases. Araka v. Egeagwu (2000) 12 S.C. (Pt. 1) 99 (2000) 12 SCNJ 206; Owoduni v. Registered Trustees of C..C.C. & 3 Ors. (2000) 6 S.C (Pt. 111) 60, Osondu Co. Ltd. v. Soleh Boneh Ltd. referred.
His Lordship continued at page 169 para: 40 of the Report that:- ” Now, an order of rehearing, may be inappropriate, where it is clear, that no miscarriage of justice has been occasioned by the failure to deal with the issue canvassed or that the irregularity, is not that of a substantial nature so as to prejudice any of the parties. See Abaliwon v. Akanji (1995) NWLR (Pt.406) 129; (1995) 7 SCNJ 245″.
At page 170 of the Report Para. 30; His Lordship rounded up his lead judgment on this issue thus:-
“Since this Court, has by a majority, also held in the case of 7 Up Bottling Co. Ltd & 2 Ors v. Abiola & Sons Bottling Co. Ltd (2001) 6 S.C. 73. (2001) 6 SCNJ 18; that although it is the duty of an appellate Court to consider all issues placed before it but that where it is of the view that a consideration of one, is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed….”
From what can be gathered in the decision above cited, it is only where all other issues are subsumed in one issue and that single issue is resolved, that an intermediate court can appropriately hold that the single issue disposes of the appeal and there would be no need to consider other issues.

In this case, I agree completely that the decision by the Appellate High Court on the failure of the upper Area Court to declare the DW3 a hostile witness, did not dispose of the entire appeal as there were other substantial issues like whether the Respondents had the locus standi to institute the action; whether the lower court was right in placing reliance on the evidence of the DW3 and most importantly whether the Appellant proved that he purchased the land from the Adifa family.
From all these issues, the Appellate High Court could still determine on the substance of the Appeal from the testimonies of other witnesses and documentary exhibits tendered particularly where the Upper Area Court had discredited the DW3 by declaring him a rogue and pathological liar. I am also in total agreement with the learned Toyin Oladipo Esq., that the case at hand does not fall within the ambit of 7up Bottling Co. v. Abiola & Sons Bottling Co. Ltd. (supra); because a consideration of failure to declare the DW3 a hostile witness did not affect the disposal of the entire appeal and infact did not render the entire proceedings of the Upper Area Court a nullity in view of the settled principle of law that decisions of Customary or Area Courts should be treated with utmost latitude since they are not bound by the strict rules of evidence, and appellate Courts hearing appeals there from, are expected to do substantial justice without undue regard to technicalities.
Finally on this issue, there is glaring evidence that the non-consideration of the remaining issues and the order of retrial or rehearing was in clear breach of the Appellant’s right to fair hearing as guaranteed him by the Constitution. The learned Counsel for the Appellant has rightly argued that the Appellate High Court failed in its bounding duty to pronounce on the crucial issue as to whether the Respondents did not prove their case but instead ordered a retrial to enable perhaps the Respondents repair their case by being given a second bite at the cherry in which case the Appellant would have been doubly jeopardized.

What then is a retrial and under what circumstances should such an order be made? We shall invite Ogwuegbu, JSC; to give us the answer as he did in the Supreme Court case of Uzochukwu v. Eri (1997) 51 LRCN 1792 at 1818 para. K.
“The Appellants in the alternative urged us to make an order for a retrial. Such an order implies that one of the parties, usually the plaintiff, is being given another opportunity to re-litigate the same matter and before deciding to make such an order, an Appellate Court should be satisfied that the other party is not thereby wronged to such an extent that there would be a miscarriage of justice. See Ayoola v. Adebayo & Ors (1969) All NLR 154 at 159. An order for retrial is not appropriate where the plaintiffs wholly failed to prove their case.”
From the foregoing dictum of Ogwuegbu, JSC; and other judicial authorities cited nay the submissions of counsel together with the evidence on record, there is no doubt that the order of retrial made by the Appellate High Court without taking into consideration the plight of the Appellant had occasioned him a serious miscarriage of justice,
I therefore answer the questions posed by the respective counsel for the parties on their issues number one, in the negative and hold that the High Court was wrong in failing to consider the other nine (9) Grounds of Appeal and the five issues formulated from the said grounds. This issue is resolved in favour of the Appellant.

ISSUES TWO (2) OF THE APPELLANT AND RESPONDENTS:
WHETHER THE HIGH COURT WAS RIGHT BY FAILING TO RE-EVALUATE THE EVIDENCE ADDUCED BEFORE THE TRIAL COURT AND DISMISSING THE CASE AS THE TRIAL COURT OUGHT TO HAVE DONE AND WHETHER THE HIGH COURT WAS RIGHT IN HOLDING THAT EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE IS PRE-EMINENTLY WITHIN THE PROVINCE OF A TRIAL COURT THAT HAS THE OPPORTUNITY OF SEEING AND HEARING THE WITNESSES AS OPPOSED TO AN APPELLATE COURT THAT ONLY DEALS WITH COLD RECORD.
In his argument on this issue, the learned counsel for the Appellant had referred us to the judgment of the trial court as contained in pages 50 to 64 of the Records and submitted that the Court below after a review of the evidence of witnesses formulated two issues for determination and proceeded to resolve them ascribing zero probative value to the evidence of DW3. Thereafter, he noted, the Court purported to apply the conclusion that the Appellant did not prove the requirements of a sale of family land. Learned counsel for the Appellant also noted that the Court below did not ascribe probative value to the evidence of all the other witnesses who testified before it but was able to make findings which the Appellant has made his Grounds of Appeal.
It was therefore submitted that those findings were not based on the credibility of witnesses but based on deductions and impressions the Upper Area Court Judges formed on the cold evidence’ in the Court’s record. He further submitted that the Appellate High Court was quite capable of deciding whether those deductions were properly made or that the impressions were properly formed as the credibility of witnesses is quite irrelevant to applying the law to the logical consistent facts in the Court’s records.
On the power of the High Court when exercising appellate jurisdiction, he placed reliance on Section 59 of the Area Court’s Law and the case of Onisadu v. Elewuju (2006) 7 SC. (Pt. 11) 45 at 57 (S.C.); to submit that the failure of the High Court to re-evaluate the evidence or re-appraise same, in the face of the unsatisfactory job done by the trial court, based on the fact of not taking advantage of hearing and seeing the witnesses is an undue regard to technicality. According to him, based on the provision of Section 59(1) of the Area Court Law, the High Court even without hearing the case could put itself in the shoes of the Area Court and deliver judgment in exercise of any jurisdiction which the trial Court would have exercised.
Learned counsel for the Appellant still on this point, reiterated that this is not a case where the trial court had any advantage over the Court of Appeal in evaluation of evidence, since credibility was not in issue and accordingly this case is an exception to the general rule that Appellate Courts should not interfere. Saleh v. Bank of North Ltd (2006) 2 – 3 SC. 1 referred. He then argued that the Appellate High Court was in as good a position to do so and ensure that justice is done to both parties,
On the refusal of the Appellate High Court to step into the shoes of the trial court to re-evaluate the evidence, he called on this Court to invoke its powers under Section 15 of the Court of Appeal Act, 2004, to assume full jurisdiction over the entire proceedings as if the proceeding had been instituted herein as a court of first instance. For this submission, he relied on Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264 at 280 S.C.; to further assert that it cannot be fairly said that there is not enough evidence on record (without reference to the credibility of any other witness) for the lower court to decide the case.
In the alternative, he urged us to remit the case to the High Court for it to properly evaluate the evidence. He urged us to resolve Issue Number Two (2) in the negative and allow Ground 1 in the Notice of Appeal.
Responding to the above submissions of the learned counsel for the Appellant, the learned counsel for the Respondent submitted that the trial Upper Area Court ascribed probative value to the evidence of all the witnesses who testified before it and made its findings based on such evidence and it would be improper for the Appellate High court to embark on a voyage of re-evaluating the evidence of witnesses who did not appear before it.
Arguing per contra, he took the view that the findings of the Area Court were not based on deduction or impression of the witnesses formed from the cold records but from the credibility of the witnesses before the said court. Learned counsel for the Respondents drew our attention to the extensive review of the evidence of all the witnesses as done by the Upper Area Court and ascribing probative value to them at page 65 paras. 5 – 30 and page 66 of the Records and as such there exists no special conditions for the Appellate High court to embark on such re-evaluation. To do so, according to him will mean assessing the credibility of witnesses which the court cannot do. For the above submission, he relied on Onu v. Idu (2006) 6 SC 58 at 65/66 S.C.; where the Supreme Court stated the principle under which this Court can interfere.
Further reference was also made to R v, OLOGEN 2 WACA 333, where the West African Court of Appeal was of the view that; ‘7f is not the function of a Court of Appeal to retry a case on the notes of evidence and to set aside the verdict, if it does not correspond with the conclusions at which the members of the Court would have arrived on these notes”.
Yadis Nig. Ltd v. Great Nig Insurance Co. Ltd. (2007) 4 – 5 SC, 236 at 258 lines 21 -25; was further cited to contend that the findings and conclusion of the trial Upper Area Court were supported by the totality of the evidence of the parties and due assessment of the witnesses was done at pages 51 – 56 and 65 paragraphs 7 – 25 of the record, He maintained that there is no way the Appellate High Court would reevaluate the evidence of the witnesses without assessing the credibility of the witnesses that testified before the trial Upper Area Court particularly DW3 whose credibility is in question. The learned counsel for the Respondents therefore insisted that the Appellate High Court has not abdicated its duty by not re-evaluating the evidence of the witnesses that testified before the trial Upper Area Court.
On the contention by the Appellant’s counsel that under Section 59(1) of the Area Court Law, the High Court can re-hear the case, the learned counsel for the Respondents rather submitted that the Court below has not breached the provisions of Section 59 of the Area Courts Law but strictly complied with it by setting aside the decision of the trial Court with an order that the matter be tried a new by a differently constituted Upper Area Court.
According to him, the findings and order of the High Court was made in the interest of substantial justice and would afford the Appellant the opportunity to ask the DW3 questions – the witness having been declared hostile by the Appellate High Court and for a differently constituted Upper Area Court to retry the case and determine the veracity and credibility of DW3, which cannot be done by the High Court or the Court of Appeal,
Finally, the learned counsel for the Respondents on this issue posited that the High Court complied with Section 6t of the Area Courts Law by adhering to substantial justice over technicality and that the decision of the High Court in declaring DW3 as a hostile witness and consequently its order that the case be heard anew before a newly constituted Upper Area Court, is not based on technicality but rather on Law and fact. He accordingly, urged us to affirm the decision of the Court below and send the case back to the Upper Area Court for retrial in the interest of substantial justice to the parties.

RESOLUTION OF ISSUES NUMBER TWO
In the resolution of Issues Number One (1) of the parties, I had sufficiently dealt with the basic position of the law on the evaluation of evidence and ascription of probative value to testimonies of witnesses called by parties at the Court of first instance. We had agreed that such function is ordinarily and primarily that of the Court of first instance and it is only in rare or exceptional circumstances which have been enumerated earlier that an Appellate or intermediate court can undertake or embark on the evaluation of evidence and reappraisal thereof.

For purposes of emphasis, it is necessary to restate the principles as have long been settled in a host of decided cases both in the apex Court and this Court. In line with the submission of the learned counsel for the Respondents and the authorities cited, in the recent case of Military Governor of Ondo State v. Kolawole & 4 Ors. & 50 Ors. (2008) 35 NSCQR 506; Mohammad JSC; at 530 – 531 had held that:-
“It s trite that when it comes to evaluation and ascribing of probative value to evidence placed before a trial Court, that court has the fundamental duty to do so. Rarely do appeal courts interfere except special circumstances are shown to exist. See Agbabiaki Saiba & Ors. (1998) 7 SCNJ 36; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.453) 12.”
The above position taken by my Lord T. Mohammad, JSC; had earlier been supported by Oguntade, JSC; in his lead judgment in Onu v. Idu (2006) 6 sc 58 at 65/66; where the Supreme Court held that:- “The principles on which a Court of Appeal can interfere have been examined in so many authorities of this Court, and the law is so settled, that it has almost become trite … the basis of it all is that the trial court has the advantage of having seen the witnesses, an advantage which the Court of Appeal does not have limited as it is to the printed evidence. The presumption is that the findings of fact by the trial judge are right and the duty to displace such a presumption falls on the party challenging them.”
Thus, the learned counsel for the Appellant was also on sound foundation when in support of his argument he cited Onisaodu v. Erewuju (2006) 7 SC (Pt 11) 45 at 57; where Tabai, JSC; was even more explicit on this fundamental principle when he posited inter alia:-
“The established principle is that if there is proper evaluation of the evidence by the trial court in the sense that every material finding is supported by the totality of evidence on record, the appellate court has no business to embark on a re-appraisal of the evidence in order to arrive at a different convulsion. But where, the findings and conclusion are not supported by the totality of evidence on record, and the evidence is such that does not entail the assessment of the credibility of witnesses, the appellate court is in as vantage a position as the trial court to embark on a re-appraisal exercise to assess the party in whose favour the weight of evidence tilts. See Woluchem v. Gudi 1981 5 SC (Reprint) 178; (1981) 5 SC 291; Chief Salami Olatunde and Anor v. Salami Abiola Abidogun & Anor. (2001) 12 SC (Pt.11) 123; (2001) 18 NWLR (Pt.746) 712 at 722 – 723 and David Basil & Anor. Chief Lasisi Fajebe & Anor. (2001) 4 SC (Pt.11); (2001) 11 NWLR (Pt.725) 592 at 608 – 609”.
I had already held that the lower court abdicated its responsibility when it failed to reassess the totality of the evidence after declaring the DW3 as hostile witness and decided to send the case back for retrial without considering the ground of appeal which complained that the Upper Area Court erred in law when it granted the claim of the Respondents for title to the land in dispute when the Respondents failed to prove that they were so entitled.

It is trite that in a claim for declaration of title the onus is on the Plaintiff to prove that he is entitled to the declaration sought and that in so doing, the Plaintiff must depend on the strength of his case and not on the weakness of the Defendant’s case. See Kodilinye v. Odu (1935) 2 WACA 366; Mora v. Nwalusi (1962) 2 SCNLR 73 at 75; Ajiboye v. Alhaji Ishola (2006) 6 SCNJ 180; Anwoyi & Ors. v. Shodeke & Ors. (2006) 6 SCNJ 1; Salami v. Lawal (2008) 36 NSCQR 1018 and Carrena & Anr. v. Akinlase & 11 Ors. (2008) 14 NWLR (pt. 1107) 262 at 282 – 284 paras. A – A. See also Section 137 of the Evidence Act.
This is because the action for declaration would be dismissed where the Plaintiff:
1. Fails to prove his case by a preponderance of evidence;
2. Adduces competing and conflicting histories of ownership; or
3. Has led evidence which is not credible. See Ohigeri v. Akabeze (1992) 2 NWLR 1 SC and John Edokpolo v. Asemota (1994) 7 NWLR 315, CA.

It would be recalled that the learned counsel for the Appellant rightly in my view cited and relied on Section 59(1)(a) of the Area Courts Law which provides that:”59-(1) any court exercising appellate jurisdiction in civil matters under the provisions of this law may in the exercise of that jurisdiction:
(a) After rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order or exercise any such power as the court of first instance could have made or exercised in such case or as the appeal court shall consider that the justice of the case requires.”
In addition, he also referred us to Section 61 of the Area Courts Law which also provides that no proceedings in an Area Court and no summons, warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal or revision solely by reason of any defect in procedure or want of form but every court or authority established in and for the State and exercising powers of appeal or revision under this Law shall decide all matters according to substantial justice without undue regard to technicalities.
The above provisions of the Area Court Law have been given judicial assent in several cases a few of which I shall cite hereunder. In Duru v. Onwumelu (2001) 92 LRCN 3148 at 3158; Uwaifo, JSC; delivering the lead judgment of the apex Court I stated the position of the law thus:-
“It seems to me that an appeal court as well as a trial court called upon to make use of decisions of those courts should allow some latitude in regard to matters of procedure adopted by them in reaching those decisions so long as they are seen to have done substantial justice. See Dinsey v. Ossey (1939) 5 WACA 17 at 18 – 19 and Ikpang v. Edoho (1978) NSCC (vol. 11) 423 at 431 and Ojemen v. Momodu (1983) 1 SCNLR 188.”
Still on the latitude to be accorded proceedings of Customary and Area Coutts by Appeal Courts, the Supreme Court again in Odofin & 1 Or. V. Jimoh Oni (2001) 5 NSCQR 67 at 85; per Achike, JSC; emphasized that superior Courts have continued to stress that greater latitude and broader interpretation must be accorded to decisions of Customary Courts as it is trite that the proceedings in the Courts are not subject to the Evidence Act. He also stressed that superior Appellate Courts in relation to matters relating to Customary Courts should focus their attention on the substance of the judgment or decision in those courts rather than form.
In his exact words:
“This is so because Customary Courts – be they Area Courts or whatever name they are christened in our various judicial jurisdictions – are generally presided over by laymen without even rudimentary exposure to legal principles. An appellate court should in all circumstances strive to get to the bottom of the decision of a Customary Court. This can only be achieved by considering the import of a decision of a Customary Court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its import in other words, when greater latitude is accorded to the interpretation of the decisions of Customary Courts it will be sufficient if such decisions are seen to accord with the view of persons of good common sense and reason completely devoid of legalistic encrustments.” See Nthan v. Bennieh (1931) AC 72; 1 WACA 1; per Lord Atkin.

In the instant case, by refusing to get to the bottom of the decision of the Upper Area court but rather looking at the case in fragments and isolation of excerpts thereof when with the declaration of the DW3 as a hostile witness, the court sent the case back to the Upper Area court without due consideration of the other grounds of appeal nay the assessment of the totality of the evidence led by the parties; the Appellate High court was enmeshed in legalistic encrustments, thereby loosing focus on the essence of decisions of courts of the nature of the Upper Area court from whence the appeal emanated.
Before rounding up on this issue, there is no doubt that by the provision of Section 15 of the Court of Appeal Act, 2004, this Court has power to assume full jurisdiction over the whole proceedings as if it had been instituted in the court of Appeal as a court of first instance and re-evaluate the evidence as the High court would have done, if the High Court did not sit as an Appellate Court.This is because appeals lie directly from the High court as a court of first instance to the court of Appeal and it is only in such circumstance that this court in its appellate jurisdiction can properly assume the position of the High court and do what that court as court of first instance would have done but which it failed to do.
In this appeal, I reiterate that we have not been availed of the opinion of the Court below on the core issue of evaluation of evidence and ascription of probative value to the evidence of other witnesses particularly, those of the Respondents which warranted the Upper Area Court to give judgment in their favour. Accordingly, although I agree that there is enough evidence on record for the lower court to decide the case and that ordinarily, the decision of the supreme court in Jadesimi v. Okotie-Eboh (supra) that section 15 of the court of Appeal Act, 2004, is panacea for cloistered, technical and mechanistic dispensation of justice as was done by the Appellate High Court; I shall prefer to accede to the alternative prayer to remit the case to the High Court for proper appraisal of the judgment of the lower court or its opinion on the rest of the unconsidered grounds of appeal and issues so formulated there from. Issue Number Two (2) is answered in the negative and resolved in favour of the Appellant.

ISSUES NUMBER THREE (3) OF THE APPELLANT AND THE RESPONDENTS:
whether the High Court properly exercised its power to order a retrial, (Ground 2) and Whether the High Court was right in holding that the most appropriate order in the circumstance is an order of retrial of the case {Page 114 lines 16 – 17 of the record).(Ground 3)
On this issue the learned counsel for the Appellant, as a prelude noted that the order for re-trial was a consequential order of the finding that the trial court was wrong not to have declared DW3 a hostile witness and that all the other nine (9) grounds of appeal and the issues framed there from were not considered. He also noted that the Appellant did not pray for a retrial for any reason including the failure to declare DW3 as a hostile witness. Furthermore, it was only in his argument of issue 6 in his counsel’s address that the counsel urged the court to stand in the shoes of the trial court to reevaluate the evidence and to hold that the Appellant purchased the land from the Adifa family but the High Court did not consider this issue.
It was therefore submitted that there is hardly any relationship or connection between the conclusion of the High Court on the issue of failure to declare DW3 as hostile and the order for retrial. In the first place, he noted, an entirely new panel of the Upper Area Court is supposed to retry the case. Secondly, there is nothing mandating or even suggesting that DW3 (Jimoh Aduagba) will feature in the re-trial. Learned counsel maintained that the order for re-trial was not a logical and consequent order in the circumstances as it is not a cure or panacea for the failure of the trial court to declare DW3 as hostile.
From the foregoing, he then urged us to note that even the trial court eventually found that DW3 was a liar whose evidence could not be believed. This is the best that could have come out of cross examination of DW3 if he had been declared hostile by the court, he further asserted, adding that the logical thing for the High Court to have done was to jettison the evidence of this witness and make do with the remaining witnesses. He observed further that the High Court did not say which of the other nine (9) Grounds of Appeal or issues identified by the Appellant could not be determined except with reference to the probative value of the evidence of the witnesses when:
1. Issues 1 and 2 are entirely questions of law;
2. Issues 3, 4, and 5 have to do with DW3 which the trial court found to be a liar who deserved to be punished for his despicable conduct in the transaction; and
3. Issue 6 questioned the conclusion of the trial court that the Appellant bought from a rogue after that same court had found that “we are highly convinced that the defendant purchased and paid for the disputed land”, which issue even has nothing to do with credibility of witnesses but whether the trial court arrived at the right conclusion from admitted facts.
On this score, the learned counsel for the Appellant reiterated as he did earlier on issue number one (1) that ordering the re-trial is just giving the Respondents a second bite at the cherry to repair their case and come back in full force to present a fresh one. For this submission, he relied on the dictum of the Supreme Court in Xtoudos Services Nig. Ltd v. Taisei (WA) Ltd (2006) 6 SC 200 at 211, on the purpose of an order of retrial that: “usually affords the plaintiff in a case a second chance to put his house in order and return to the court with his repaired case to fight the defendant, Where a plaintiff woefully fails to prove his case, the proper order the law requires the court to make is that of dismissal of the plaintiff’s case”.
He added that the trial court had made a finding which is not being challenged that “we are highly convinced that the defendant bought the land in dispute…”According to learned counsel for the Appellant, this finding added to Exhibit 42 (the Land Agreement) and the fact of having been in possession since 1994 are sufficient facts from which the court could have made inference capable of deciding the case. Surely this is not an appropriate case for retrial, the learned counsel concluded, to urge this Court to answer Issue 3 in the negative and allow the appeal.
Responding to the above submissions, learned counsel for the Respondent submitted that the High Court was right in making a consequential order for the retrial of this case before a new panel of the Upper Area Court after declaring DW3 a hostile witness. This order is in consonance with the rule of fair hearing and substantial justice and is justice to both parties, he further noted.
He referred us to the case of Okomalu V Akinbode (2006) 4 SC (Pt.1) at 30-33 where the Supreme Court held among others that an appellate court will make an order for retrial even without hearing parties on the issue if it finds it expedient to do so and in the interest of justice and further that an order of retrial will be made where a great deal depends on the credibility and reliability of witnesses.
He took a contrary position to that of learned counsel for Appellant that there is no connection between the conclusion of the High Court in declaring DW3 a hostile witness and an order for a retrial in that it is only the new panel of the Upper Area Court that is in a better position to assess the credibility of DW3 after the panel must have listened to and heard the testimony of DW3. Still on this point he maintained that the Court of Appeal which has not listened and heard DW3 cannot assess his credibility, for it is impossible for the High Court to have jettisoned the evidence of DW3 which the Court is not in position to re-evaluate because the Court has no opportunity to see and hear the evidence of the witness,
The learned Counsel insisted as he did earlier on issue number two (2) that since the High Court is not in a position to evaluate the evidence of the witnesses in the case and ascribe probative value to it as well as assess their credibility, the most appropriate order to make therefore is order for retrial of this case.
He finally countered the submission of the learned counsel that the order of the High Court for retrial is made to allow the Respondents to rebuild their case adding that it was rather made to achieve substantial justice in the case. DW3, he insisted is the witness of the Appellant and it is his evidence and credibility that is in question. On the other hand, he asserted that the Respondents’ witnesses have no problem with their evidence, as they have proffered sufficient evidence before the trial Upper Area Court to make them entitled to their claims against the Appellant. We were then urged to hold that the High Court was right in making the order of retrial of this case in the interest of substantial justice.
Now, in the resolution of this issue I have to recall that I had on issue one dealt extensively with the issue of the appropriate circumstances under which a retrial can be ordered by an Appellate Court but for the purposes of emphases I shall once more refer to the land mark case of Duru v. Onwumelu (2001) 92 LRCN 3148 at pages 365 – 366 where Uwaifo, JSC, brilliantly enunciated the principles applicable and examples of irregularities that could compel or warrant the ordering of a retrial, On principles applicable to ordering a retrial of a case the learned law Lord intoned inter alia:-
‘A retrial order is not made without sufficient grounds. It is fundamental that an appellate court should bear in mind that in exercising its discretion to make an order for the retrial of a case, the paramount and only consideration is to ensure that justice is done to both parties and that the discretion should not be exercised in a manner that will make it appear that the court is only concerned with one party being given an unjustifiable opportunity to re-litigate a case which has either truly failed or truly succeeded: see Onyenma v. Amah (1988) 1 NWLR (pt 73) 772. Where it is clear, therefore, from the evidence that the trial court rightly concluded that a Plaintiff had failed to establish the claim he presented to court and there was no irregularity affecting the proceedings which would warrant a retrial of the case, an order of retrial will be erroneous; See Elias v. Disu (1962) 1 All NLR 214; Ayoola v. Adebayo (1969) 1 All NLR 159. AT PAGES 3165 AT & 3166 AK”.
On examples of irregularities which could compel an order of retrial His Lordship posited.’-
Such irregularity which will compel an order of retrial could be where, if the trial judge failed in his primary duty in the evaluation of evidence to make findings of fact on the issue or issues joined on the pleadings, material for reaching a just decision, and it is not such evidence upon which an appellate court can itself make such findings of fact, the Court of Appeal will be perfectly justified for that reason to order a retrial: see Okeowo v, Megliore (1979) 11 SC 138; Abibu v. Binutu (1988) 1 NWLR (pt. 68) 57; Ezeoke v. Nwagbo (1988) 1 NWLR (pt. 72) 616. At page 3165 AT & 3166 AK”.
Where there has been a mistrial, a substantial misdirection by the trial court, or some other vice by the court but for which the Plaintiff’s case might have succeeded, or at any rate might not have been regarded as having failed into-to and so the defendant is not entitled to have judgment in his favour: see Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130 at page 31662.
From the foregoing authorities, the learned counsel for the Appellant rightly submitted relying on Okomalu v. Akinbode (2006) 4 SC (Pt. 1) 19 at 30-33; that it is settled law that an order for re-trial is not made for fun but on settled principles and also in the interest of justice. It has to be recalled as I said in the issue number two that the Appellate High Court rightly stated the principle of law at page 114 of the Record in refusing to evaluate the evidence of witnesses after declaring DW3 a hostile witness that:
“The first point we want to make is that evaluation of evidence and the ascription of probative value to evidence is pre-eminently within the province of a trial court that has the opportunity of seeing and hearing the witnesses as opposed to an appellate court that only deals with the cold record”.
The above notwithstanding, I had held and hereby remark again that, once the application to treat the DW3 as a hostile witness succeeded, the rest of the procedure was consistent with a declaration of overt enmity and he should have been cross-examined by the Appellant or his Counsel in order to discredit him. See “K” Line Inc. v. K.R. Int. (Nig.) Ltd. (1993) 5 NWLR (Pt.) (292) 159 and Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 S. C. However, inspite of the refusal of the Upper Area Court to grant the application for learned counsel for the Appellant to treat him as hostile witness in which case, he should have been discredited under cross-examination by the Appellant or his counsel; the trial Upper Area Court at page 63 of the Record lines 1 – 4 made abundantly clear that:- ” We are highly convinced that the Defendant purchased and paid for the disputed land’. The Court also held that:-
“From available evidences before the Court, we found that the Defendant bought the land from a rogue, who is not a member of Adifa Family or a representative of Adifa Family. That is DW3 Jimoh Aduragba, whose evidences contained cesspool of lies and who has no woman compassion”.
From the foregoing evidence on Record and the findings of the Upper Area Court on the credibility of DW3, once the witness has been discredited then the Court below (the Appellate High Court) could have drawn the necessary inference as to whose interest he was serving or totally reject his evidence. Accordingly, there would have been no need for ordering a rehearing on the mere fact that the Court had pronounced him hostile. See further Okonkwo v. The State (1998) 8 NWLR (Pt. 561) 210.
Having taken a cursory look at the Record of proceedings and principles enunciated in the case earlier cited I agree totally with the learned counsel for the Appellant that there was no nexus between the order of retrial and the Appellant’s grouse against the Upper Area court’s refusal to declare the DW3 a hostile witness. Truly, as has been rightly submitted the lower court did not give any reason why the other nine grounds of Appeal and five issues formulated were abandoned, I do not subscribe to the submission of the learned counsel for the Respondent that the order of retrial before a new panel of the Upper Area court was a necessity for the determination of credibility DW3 who had already been discredited by the Upper Area Court as a rogue and a witness whose evidence was a cesspool of lies’ All that the Appellate Court had to do was simply to juxtapose that discredited evidence with evidence of other witnesses and draw the necessary inferences from proved facts and application of law to such facts in order to determine whether the Court below was justified to have given judgment in favour of the Plaintiffs/Respondents.
Finally, from the totality of the conduct of the Appellate High Court, I reiterate that the court below truly abdicated its responsibility of reappraising the evidence where the Upper Area Court had considered the totality of the evidence and the documentary Exhibits tendered to give judgment to the Plaintiffs/Respondents.
I am therefore in total agreement with the learned counsel for the Appellant that the order of retrial as made by the Appellate High Court was in violation of settled principle of law and would and has jeopardized the right of the Appellant to fair hearing, The Respondents, who are stoically and ironically defending the order of retrial, ordinarily should have been the ones to appeal against it, since they got judgment in the Upper Area Court. Little wonder then that the Appellant has rightly and apprehensively submitted on the authority of Xtoudos Services Nig, Ltd v. Taisel (WA) Ltd, (2006) 6 SC 200 at 211; that the obnoxious retrial order, like a non-suit would afford the Respondents a second chance to put their house in order and return with more arsenals to fight him (Defendant/Appellant).
Accordingly, I answer the question posed by this issue in the negative and I shall resolve the issue again in favour of the Appellant.

ISSUES 4 OF THE APPELLANT AND RESPONDENTS
“Whether the decision of the Court is against the weight of evidence AND whether the Respondents proved their case before the trial upper Area Court?”
The summary of the submission of the learned counsel in their respective briefs is that for the Appellant he had proved upon the preponderance of evidence that he bought the land in dispute from the Adifa Family whereas the Respondents contend per contra, that they have proved through credible traditional evidence before the trial Court and upon the preponderance of evidence that their family (Adifa Family) is the traditional owner of the 10 plots of land and that the Appellant did not obtain his title from their family.
Having decided earlier on issue number two to grant the prayer of the Appellant to remit the case to the Appellate High Court for same to be reheard on the merits, there would be no need to consider issues number four of the parties. The issues as couched shall abide the outcome of the judgment of the Appellate High Court.
The appeal on the whole succeeds and the judgment of the Appellate High Court delivered on the 6th day of May, 2009, is hereby set aside. I order that the case be remitted to the Hon. Chief Judge of Kwara State for re-assignment to another panel for hearing on the merits. I award N30,000.00 costs in favour of the Appellant against the Respondents.

TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Agube JCA just read. His Lordship has painstakingly treated all the live issues presented to us for determination. I entirely agree with his reasoning and conclusions which led to remitting the case to the Chief Judge of the State for re-assignment to another judge of the High Court for re-hearing on the merit.
One of the issues that came up for determination in this appeal is whether the High Court was right by failing to consider or determine the other nine (9) grounds of appeal filed by the appellant.
As can be gleaned from the judgment of the lower Court in pages 109 to 115 of the Records, only the 3rd issue was considered by the appellate High Court. The issue needless to say deals with the refusal of the trial Court to treat DW3 as a hostile witness. Though this issue was allowed, the High Court neglected to consider the other issues, nine in number on the ground that it was unnecessary to consider them because the case would be tried anew. (See page 114 of the record).
In the light of the materials placed by the parties to the dispute and the evidence adduced for and against the issues in controversy, I am of the considered view that failure of the Court to consider all the issues by the appellate High Court was a clear breach of the appellant’s right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999. See also the cases of Okonji vs. Njokanma (1991) 7 NWLR (Pt.202) 131 and Osondu vs. Solet Boneh (2000) 5 NWLR (Pt. 656) 322 at 351.
For this reason and the more detailed ones contained in this lead judgment of my learned brother, I too allow this appeal and abide by all the consequential orders therein contained.

Appearances

Toyin Oladipo Esq.,For Appellant

AND

Dr. B. A. Onipidan;
A.A. Rabiu Esq.,For Respondent