MRS. GEORGINA MOKEME V. BENJAMIN OKONKWO (2012)

MRS. GEORGINA MOKEME V. BENJAMIN OKONKWO

(2012)LCN/5415(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of May, 2012

CA/E/194/2009

RATIO

COURT: DUTY OF COURT OF APPEAL TO PRONOUNCE ON ALL ISSUES BEFORE IT AND ITS EXCEPTIONS

This court being a penultimate court is enjoined to consider and pronounce on all issues put across by the parties. However, there are circumstances when this court can dispense with doing so. The circumstances are (i) when an order of retrial is considered desirable or necessary and (ii) where the judgment appealed against is considered a nullity, in which case there may be no need to pronounce on all the issues, which could possibly arise at the retrial or in a fresh action as the case may be. See Brawal Shipping (Nig) Limited v. Onwadike (2000) FWLR (Pt.23) 1254 at 1271, Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 550 – 551, Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330, Ebonyi State University v. Dr. Mary Eteng CA/E/314/09 of 11th May, 2012. PER ADAMU JAURO. J.C.A.

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MRS. GEORGINA MOKEME Appellant(s)

AND

BENJAMIN OKONKWO Respondent(s)

ADAMU JAURO. J.C.A., (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State sitting on assignment order at Otuocha division delivered on 16th December, 2008 by Hon. Justice G.N. Mbanugo in suit number 0/216/2006 which was originally filed in Onitsha Judicial Division.
The facts of the case giving rise to this appeal can be compressed as follows: The plaintiff now respondent instituted this action against the defendant now appellant, claiming the ownership of an attachment gable end No. D4/1/G1 Ogbaru Main Market, Okpoko, as being the rightful allottee by the Local Government. As a consequence of the action instituted, the plaintiff in paragraph 25 of his statement of claim, claimed the following reliefs against the defendant, namely:
“(a) Special damage N11,154,500.00
(b) General damage N 200.000.00
(c) A DECLARATION:
(i) That the Plaintiff is the rightful allottee of the attachment gable end No. D4/1/G1 Ogbaru Main Market Okpoko.
(ii) That the possession occupied by the defendant is the possession of the attachment gable end No. D4/1/G1 Ogbaru Main Market Okpoko.
(d) An order of injunction restraining the defendant, her servants, agents, children, husband, thugs and privies from further attack, threat to the life of the Plaintiff or destruction of the Plaintiffs property with acid chemical or any weapon at all and or entry into the said attachment gable end No. D4/1/G1 or further disturbance, interference with the Plaintiff’s rights, titles and interest therein.
(e) An order of the Honourable Court compelling the defendant to reproduce the Plaintiff’s documents which included the Plaintiff’s Purchase invoices, receipts, agreement etc. destroyed by the defendant in the course of trespassing into the Plaintiff’s attachment gable end No. D4/1/G1 Ogbaru Main Market Okpoko.
(f) An order of the Honourable Court compelling the defendant to vacate the possession of attachment gable end No. D4/1/G1 Ogbaru Main Market Okpoko to give the Plaintiff the chance to occupy the said attachment gable end No. D4/1/G1 being the rightful allottee.”
Pleadings were filed and exchanged and the case proceeded to trial. The plaintiff testified as the only witness on the plaintiff’s side, while the defendant testified as the sole witness for the defence. Both parties tendered numerous documents in evidence as exhibits. Written addresses were filed, exchanged and adopted in court.
Thereafter, the trial court in a four paged judgment made a sketchy summary of the testimony of the plaintiff and that of the defendant, a brief reference to addresses of counsel, and a list of exhibits tendered And abruptly concluded thus:
“The evidence before the court shows that the plaintiff Benjamin Okonkwo is the owner of Gable end No. D4/1/G1-G4. The court cannot remove gable end D4/1/G2 which is part of G1-G4 and give to the defendant. It is common sense that G1-G4 are serial numbers. There is no way G2 can be removed from that serial numbers. The defendant should go back to the Local Government and get her own allocation directly from the Ogbaru Local Government. Judgment is hereby given for the plaintiff in the interest of fair hearing and justice. I make no order as to cost.”
See page 175 of the record of appeal.
Distressed by the aforementioned decision, the defendant challenged same vide a notice of appeal dated 19th December, 2008 and filed on 22nd December 2008. The notice of appeal is anchored upon six grounds of appeal. See pages 176 to 180 of the record of appeal. In strict adherence to the Rules of Court, briefs of argument were filed and exchanged. The appellant’s brief of argument is date d 23rd December, 2009 and filed on 22nd January, 2010 but deemed properly filed and served on 17th May, 2011. The appellants reply brief is date d 23rd June, 2011 and filed on the 29th June, 2011. The respondent’s brief settled by F.A. Onwuachi Esq., is dated 13th June, 2011 and filed on 14th June, 2011. Mr. Emeka Ajaegbo leading C.M. Obljagwam Esq., for the appellant, adopted and relied on the appellant’s brief and the reply brief in urging the court to allow the appeal. The respondent, Mr. Benjamin Okonkwo who was not represented by counsel adopted and relied on the respondent’s brief in urging the court to dismiss the appeal.
The appellant distilled four issues for determination on page 3 of the appellant’s brief of argument. The said issues are hereby reproduced thus:
“(a) Whether the learned trial judge did not in failing to consider the issues germane to the suit and raise by Defendant/Appellant deprive her of fair hearing in the suit? (Ground 1).
(b) Whether the learned trial judge was not in error when he held that the evidence before the court shows that the plaintiff Benjamin Okonkwo is the owner of gable end No. D4/1/G1 – G4 and that he tendered allocation paper dated July 1st 1991, when the said document the allocation paper dated July 1st 1991 upon which the plaintiff/respondent based his claim was not tendered before the court? (Ground 2 & 3).
(c) Whether the learned trial judge did not misinterpret Exhibit ‘L’ as a document which adjudged Stall No. D4/1A to the plaintiff/respondent when it was so, and misunderstood the date of certification on the defendant/appellant’s allocation paper to be the date of its issue? (Grounds 4 & 5).
(d) Whether the Respondent from the evidence before the court established his interest in any gable end, suffered any damage, or that gable end No. D4/1/G1 is the same as D4/1/G2 of the Appellant to warrant judgment in favour? (Ground 6).”
The respondent on the other hand, formulated 3 issues for determination on page 3 of the respondent’s brief of argument as follows:-
“(a) Whether the learned trial judge had properly evaluated the evidence adduced by parties at the trial court to justify his findings and conclusions resulting in the judgment delivered by the court below.?
(b) Whether the Appellant’s failure to call necessary witnesses in this case was proper to warrant raising the presumption under S.149(d) of Evidence Act against the Appellant?
(c) Whether the trial court was right to have granted the claim of the Respondent against the Appellant.?”
I have studied the issues for determination submitted by parties to this appeal. The issues for determination distilled by both sides are in substance same and identical. Hence, I consider it expedient to determine the appeal upon the issues for determination as nominated by the appellant.

ISSUE ONE:
Learned counsel for the appellant stated that it is settled law that the courts and parties are bound by the issues raised before the court. Learned counsel contended that it is also settled law that a judgment of court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect on the result of such exercise. In other words, learned counsel argued that a judgment must show a clear resolution of all the issues that arise for decision in the case and end up with an ultimate verdict which flows logically from the facts as pleaded and found proved. Learned counsel further contended that a court must never leave any issue or issues raised by a party or parties to suit without hearing and determining same before concluding a case. In support, reference was made to the following cases: Ojogbue & Anor v. Nnubia & Ors. (1972) 1 ALL NLR (Pt.2) 226, Ogunyade v. Oshunkeye (2007) ALL FWLR (PL 389) 1179 at 1189, Katto v. C.B.N. (1991) 9 NWLR (Pt 214) 126, Yusuf v. Adegoke (2007) ALL FWLR (Pt.385) 384 at 410.
Learned counsel submitted that in the instant case, the appellant as defendant challenged and or raised the following issues, namely:
(a) That the plaintiff’s exhibit ‘A’ (Certificate of allocation dated 1/8/96) was fraudulent as same as doctored in longhand by a different person that issued it and without the said person appending his name and date.
(b) The authenticity of letter of approval dated 7/8/96 exhibit ‘B’ was raised as same was also doctored in longhand by a different person that issued it without that person appending his name and date.
(c) The failure of the plaintiff/respondent to tender his purported allocation paper dated 1/7/91 which he claimed as his root of title to gable ends No. D4/1/G1 to G4.
(d) The issue of whether Gable end No. D4/1/G1 is the same as Gable end No. D4/1/G2.
Learned counsel argued that the learned trial judge throughout his judgment never considered the above issues raised by the defendant. Learned counsel also submitted that the court failed to consider the effect of evidence on facts not pleaded, which goes to no issue. In support, reference was made to Adenle v. Olude (2003) FWLR (Pt.157) 1074 at 1087, Thompson v. Aromolo (2003) FWLR (Pt.164) 315 at 374. Learned counsel submitted that in failing to consider the above issues raised by the defendant, the trial judge has failed in his judgment to demonstrate in full a dispassionate consideration of these issues which were properly raised and heard and his judgment did not reflect the result of such full dispassionate consideration of the issues contrary to the decision of the Supreme Court in Ogunyade’s case.
On the effect of a court omitting or failing to consider and pronounce on an issue submitted before it, learned counsel submitted that such an omission is a denial of fair hearing and can occasion a miscarriage of justice. In support, reference was made to Brawal Shipping Nigeria Limited v. F.I. Onwadike Company Limited (2000) FWLR (Pt.23) 1254 at 1270, Bayol v. Ahemba (1999) 10 NWLR (Pt 623) 381 at 392-393. In concluding, learned counsel urged the court to apply the earlier cited decisions and hold that the lower court failed to demonstrate at all or in full a dispassionate consideration of the issues raised by the defendant and joined by the litigants, and that justice has not been done to the appellant as she has been denied fair hearing.

The respondent responded to this issue under his issue number one, and contended that the plaintiff/respondent tendered and relied on exhibits A, B, C – C5, D, E, F, G and H, among other documents to prove his case. Learned counsel stated that the evidence elicited from the appellant during cross examination is at variance with her pleadings, thereby making her evidence unreliable. In support, reference was made to Ezembe v. Ibeneme & Anor. (2004) 7 SCNJ 136 at 153, Attar v. State (1993) 4 NWLR (Pt.288) 403. Learned counsel further stated that the court made a finding that the plaintiff/respondent is the rightful allottee of gable end No. D4/1/G1 to G4.
Learned counsel having made the introductory submissions above, proceeded to respond to the four issues which the appellant contended were raised at the lower court but the court omitted to consider and pronounce upon them. On the issue of fraud, learned counsel submitted that appellant failed to prove the allegation. In support, reference was made to Section 138(1) of the Evidence Act and Arowolo v. Fabiyi (2002) 4 NWLR (Pt. 757) 356, A.C.B. Plc. v. Ndoma-Egba (2000) 8 NWLR (Pt.669) 389 at 401. On failure to tender allocation letter dated 1/7/91, learned counsel stated that the Certificate of Allocation dated 1/8/96 tendered as exhibit ‘A’ is comprehensive and did incorporate previous allocation of 1/7/91. On whether gable end D4/1/G1 is same as gable end D4/1/G2, learned counsel stated that by the exhibits tendered, what was before the court was gable end D4/1/G1. On the failure to tender allocation paper of stall No. D4/1A, learned counsel submitted that what was before the court was D4/1/G1 which the respondent has established ownership. Learned counsel therefore urged that the issue be resolved against the appellant.
Upon the settlement of pleadings in the lower court, issues were joined on several facts, by the parties to the duel. The case proceeded to trial and the plaintiff and defend ant testified respectively and both tendered numerous documents as exhibits. Upon the conclusion of hearing, written addresses were filed, exchanged and adopted in court. In the written addresses filed, the defendant distilled five issues for determination, while the plaintiff distilled two issues for determination. See pages 116 and 144 of the record of appeal. The complaint of the appellant under this issue is that all the issues raised by the defendant for determination in its address based on the facts and evidence were not considered by the lower court. The appellant contended that the judgment did not reflect a dispassionate consideration of the issues raised by the defendant, hence breached her right to fair hearing and occasioned a miscarriage of justice.
The respondent however, it seems got it wrong as he only responded to the issues which the appellant contended had raised in the lower but the lower court failed to consider and pronounce upon. The respondent ought to have made submission to the effect that the lower considered all the issues raised by the defendant now appellant and that the judgment is a by-product of a dispassionate consideration of all the issues raised by the defendant and joined by the parties. In doing so, the respondent can make references to relevant pages of the judgment where the issues were considered, if they were at all considered. The respondent however has not done that, and has not stated albeit even by implication whether the issues raised by the defendant were considered at all by the lower court.
I have taken my time to peruse the four paged judgment of the lower court, several times. The judgment as stated in the earlier part of this judgment only made a sketchy summary of the testimony of the plaintiff and the defendant and brief reference to the address of counsel and no more. There was however no mention of the issues submitted by the defendant for determination, nor a dispassionate consideration of the said issues and pronouncement made upon them. Though judgment writing is a question of style, which varies from one individual to another, however, a judgment of court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect on the result of such exercise. In other words, it must show a clear resolution of all the issues that arise for decision in the case and end up with ultimate verdict which flows logically from the facts pleaded and found proved. See Ogunyade v. Oshankeye (supra), Ojogbue v, Nnubia (supra), Katto v. CBN (supra), Bayol v. Ahemba (supra).
In the instant case, the judgment of the trial court did not even reflect the issues raised by the defendant, nor considered same nor make pronouncement upon them. The trial court only made a summary of the evidence of plaintiff and defendant without evaluating same. See Olaganju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225, Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 119. The failure to consider the said issues breached the defendant’s right to fair hearing and indeed occasioned a miscarriage of justice.

In the light of the foregoing, this issue is bound to succeed. It accordingly succeeds and is resolved in favour of the appellant. The implication of this, is that the lower court failed to resolve any of the issues submitted by the defendant for determination and the resolution of which was necessary for a just determination of the case. In the circumstance of this case, the appropriate thing I consider desirable is for an order of retrial for a proper consideration of the issues raised.

Though it has earlier been indicated that the appeal will be determined on the issues formulated by the appellant, it is no longer necessary considering the success of issue one and the desirability of sending the case for retrial.
As a consequence of the foregoing, the appeal is meritorious, it succeeds and is hereby allowed. The judgment of the lower court delivered on 16th December, 2008 in suit number 0/216/2006 is hereby set aside. In its place, an order is hereby made remitting the case to be heard by another judge of Onitsha Judicial Division.
I make no order as to costs.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Adamu Jauro, JCA; and I am in total agreement with his lordship’s reasoning and conclusions.
I adopt the judgment as mine. Accordingly, I find the appeal to be meritorious and allow the same. I too, set aside the judgment of the lower court (per Hon. Justice G.N. Mbanugo) delivered on 16/12/2008 appealed against, and make an order remitting the case to the Chief Judge of Anambra State, for it to be assigned to another learned Judge in Onitsha Judicial Division for it to be heard de novo,
I make no order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I was accorded the privilege of a preview of the judgment just delivered by my learned brother, ADAMU JAURO, JCA. I agree with his reasoning and conclusion. I also consider the appeal as meritorious and it is hereby allowed. I equally abide by the consequential orders made in the lead judgment.

Appearances

Mr. Emeka Ajaegbo,
C.M. Obijagwam Esq.For Appellant

AND

Respondent appeared in person.For Respondent