THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. MR. REUBEN ETEKOH
(2011)LCN/4310(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of February, 2011
CA/B/81/2005
RATIO
TRIAL DE NOVO: WHAT THE PHRASE “TRIAL DE NOVO” ENTAILS
The phrase de novo connotes, a new, a fresh, or a beginning or a start – see the case of Babatunde v. P.A.S. & T.A Ltd (2007) 13 NWLR (Pt. 1050) p. 113, where, Muhammed, JSC at p. 46 para. B and p. 147, paras. A – D, stated as follows: In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means (trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing de novo court hears matter as court of original and not appellate jurisdiction. …………..:..that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate. In the case of: Fadiora v. Gbadebo (1973) NSCL (Vol. t) p. 121, Idigbe, J.S.C, had the following to say: We think that in trials de novo the case must be proved anew or rather re-proved, de novo and, therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of. Therefore, an order of retrial or a trial de novo, simply means, an order that the whole case should be retried or tried anew as if no trial whatsoever had taken place at all in the first instance. See the case of: Babatunde v. P.A.S. & T.A. Ltd. supra at p. 147, paras. F-G. PER OYEBISI F. OMOLEYE, J.C.A
JUDICIAL DIVISIONS: WHETHER THE JUDICIAL DIVISIONS OF A HIGH COURT ARE SEPARATE OR DISTINCT COURTS
It is trite both in law and practice that, there is only one High court in each State of Nigeria. However, judicial divisions are created for administrative convenience to enable the wheels of justice run speedily and smoothly at that. Therefore, judicial divisions are not separate or distinct courts, but rather, they are branches of one stem, the High Court. See the cases of: (1) Aliyu v. Ibrahim (1992) 7 NWLR (Pt.253) p. 361(2) Merchant Bank of Africa v. Owoniboys Technical Services Ltd. (1994) 8 NWLR (Pt. 365) p. 705; (3) Ogagie v. Obivan (1997) 10 NWLR (Pt. 524) p. 179 and (4) Egbo v. Agbara (1997) 1 NWLR (Pt. 481) p. 2931. PER OYEBISI F. OMOLEYE, J.C.A
WHETHER A JUDGE WILL LOSE THE JURISDICTION TO ADJUDICATE UPON A MATTER BY THE MERE FACT OF HIS TRANSFER TO ANOTHER JUDICIAL DIVISION OF THE SAME STATE
This Court in the case of: Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) p. 114 at 133, paras. D – E, restated the point that matters of transfer orders, judicial divisions, fiat, etc., are strictly administrative, hence, they do not go to jurisdiction. Therefore, I lend credence to the dictum that, a Judge of a judicial division of the High court of a state does not lose the jurisdiction to “continue” to sit and adjudicate upon a matter by the mere fact of his transfer to another judicial division of the same State. What is more, it is the practice these days that, when Judges are transferred to new judicial divisions, matters which were part-heard in the previous judicial divisions where they previously sat are expected to be concluded. Albeit, Chief Judges may grant fiat or issue circulars to this effect, there being no specific provisions of the law or rules of the High Court requiring such, there is a presumption that, Judges in alliance with parties’ counsel must see to it that, all part-heard matters are smoothly concluded. PER OYEBISI F. OMOLEYE, J.C.A
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. Appellant(s)
AND
MR. REUBEN ETEKOH Respondent(s)
OYEBISI F. OMOLEYE, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of T.C. Makwe, J., of Warri Division of the Delta State High Court (hereinafter referred to as the trial Court) in Suit No. W328l99 delivered on 27th July, 2004.
The background facts of this matter are that, in November, 1999, the Respondent who was the plaintiff at the trial Court issued a writ against the Appellant as defendant, claiming the sum of two million naira being special and general damages for malicious prosecution. After pleadings have been filed and exchanged by the parties, trial in the suit was commenced on 30th January, 2001, before Hon. Justice T. C. Makwe. The Respondent gave evidence and called his first witness. At the close of the evidence of the said first Respondent’s witness on 24th May, 2001, the Respondent applied for and was granted an adjournment to enable him call some more witnesses. Thereafter there were a Couple of hearing.
On 16th April, 2002, when the case came up for hearing, trial of the case was started de novo before another Judge, D.E. Uwheriavwe who had been posted to Warri Division to replace T.C. Makwe J. On the said date, the Respondent opened his case afresh with his own evidence. On 4th June, 2002, the next date of hearing when the Respondent was to continue with his testimony, the Appellant made an application to the trial court to determine the issue of law, that is, an objection to the competence of the suit as contained in paragraph 11 (b) of its Further Amended Statement of Defence which was predicated on paragraphs 3,4,5,8, 9 and 10 of the Respondent’s 3rd Amended Statement of Claim. See pages 14 and 18 to 20 of the record of appeal.
The arguments in favour of and against the said objection were made by the learned counsel for the parties – see pages 34 to 35 of the record of appeal. In its considered ruling which was delivered on 8ft November, 2002, the trial court overruled the objection of the Appellant, and held impliedly that, the suit is competent.
As can be gleaned from the record of appeal, after the said ruling of Uwheriavwe J., the trial remained in abeyance until 16th June, 2003. On that day, it was Makwe J., who presided, having been transferred back to Warri Division on the retirement of Uwheriavwe J., from the Delta State Judiciary. That day, the case was further adjourned to 23’d July, 2003 for the continuation of the evidence of the Respondent which had commenced on 16ft April, 2002 before Uwheriavwe J., when the case had been started de
novo as earlier on stated above. On the said 23rd July, 2003, the Respondent purportedly closed his case after calling two witnesses in all, being not able to call additional witnesses as earlier indicated by him. After another round of adjournments, the case came up for hearing on 4th December, 2003 when the Appellant was called upon to present its defence.
On 4th December, 2003, the learned counsel for the Appellant indicated his intention to make a no case submission, and, if that bid failed, he would proceed to call evidence in support of the case for the defence. The learned counsel for the Respondent opposed the proposed procedure of the learned counsel for the Appellant.
In the ruling of the learned Makwe J., of 12th December, 2003. it was held that, the Appellant having elected to call evidence, was bound so to do. On the next date of hearing on 16th March, 2004,
the Appellant opened its defence by calling one Victor Akpodiete as DW1. In the middle of the evidence-in-chief of DW1, strangely, the learned counsel for the Appellant presented an “address”. This is contained in pages 46 to 47 of the record of appeal. For clarity and easy reference, I hereunder in extensor reproduce (verbatim), the relevant portion of the said “address” as follows:
Mr. Ovrawah addresses Court: He submits that my brother judge started this case before he was retired and I came back to this court. He delivered a ruling on 8\11\2002 in this case. The Defendant defended this as prosecution constituted by court. He urges court to strike out this on the ground that this case was not started de novo when resumed in this court. He further submits that the plaintiff did not give evidence in support of his pleadings in the new trial. Therefore his case must fail because the Plaintiff has not discharged the burden of proof. BIRI V. MAIRAUWA (1996) 8 NWLR (PT. 467) 425. ALABI V. OLOYA (2001) 6 NWLR (PT. 708) 37 Ratio 9 and submits that section 34 must be complied with before the Plaintiff can rely on the previous proceedings by this court as presently constituted.
BAKULE V. TANERWA NIG. LTD. (1995) 2 NWLR (pt. 380) 728 Ratio 6 at 738. He urges court to strike out this case. The underlined is mine for emphasis).
After the Appellant’s counsel’s “address”, the record of appeal simply has it that, “the witness continues his evidence”, that, he, the Appellant’s counsel wanted the case of the Respondent dismissed – see lines I to 2 at page 48 of the record of appeal. The case was then adjourned for the cross-examination of DW1, which took place on 1st April, 2004, when the defence closed its case.
Subsequently the learned counsel for both parties addressed the trial Court and judgment in the case was reserved.
On 27th July, 2004, the learned trial Judge at pages 51 to 52 of the record of appeal, did a twisting and turning, and delivered a ruling which goes thus:
RULING – The jurisdiction of a Judge is territorial and not personal. So, when a Judge is transferred from one Judicial Division to another, he loses the power and jurisdiction to administer justice in the former judicial division unless by the Warrant of the Chief Judge or cases transferred to him on application. See the cases of OGBUNIYA V. OKUDO (1979) 6 – 9 S.C. 32 and OGUNSINA v. OGUNLEYE (1994) 5 NWLR (Pt. 346) 625.
If the same Judge is transferred back to the former Judicial Division cases ought to start De Novo except with the consent of the parties where there were no intervening proceedings before another Judge in the case and the time the transferred Judge was away was not much.
In the present case my brother Judge Hon. Justice D.E. Uwerhiavwe took proceedings and evidence when I was transferred to the High Court Otu-Jeremi. Consequently, I hold that this case shall start, De Novo and it is adjourned to 16\11/04 for hearing.
Dissatisfied with the above ruling of the trial Court, the Appellant appealed against it vide a notice of appeal dated 9th August, 2004 but filed on 10th August, 2004. The notice of appeal contains three grounds of appeal, these with their particulars are contained in pages 53 to 55 of the record of appeal.
The Appellant’s brief of argument dated 10th May, 2005 was filed that same date. The said Appellant’s brief of argument was duly served on the Respondent. By a motion on notice dated 4th October, 2005 and filed on 20th October, 2005, the Appellant’s counsel sought leave to argue this appeal based on the Appellant’s brief of argument only, the Respondent having failed, refused and neglected to file the Respondent’s brief of argument within the time allowed by the rules of this Court. This application was obviously served on the Respondent’s counsel, because he filed an application on 27th June, 2007, seeking for an extension of time to file the Respondent’s brief of argument. The two applications came up for hearing in this Court on 11th June, 2008, the two parties having been duly served with hearing notices, the application of the Appellant was granted, while that of the Respondent was struck out for want of diligent prosecution. The hearing of the substantive appeal was then adjourned and this Court ordered that necessary hearing notice be served on the Respondent.
At the hearing of this appeal, the Respondent and his counsel the fact that there was evidence of hearing served on the learned counsel for the Respondent. Hence, this appeal shall be determined solely on the Appellant’s brief of argument pursuant to the provisions of order 17, Rule 10, of the Rules of this court. The learned counsel for the Appellant identified, adopted and relied on the Appellant’s brief of argument and urged this Court to allow the appeal.
In the Appellant’s brief of argument, a sole issue was formulated from the three grounds of appeal for the resolution of this appeal. This sole issue is:
Whether in the circumstances of the suit, the learned trial Court was right in its ruling to have ordered a trial of the suit de novo?
I agree with the learned counsel for the Appellant that the crux of this appeal is, whether the learned trial Judge was right in his ruling that, the suit should be heard de novo by him on his second sojourn in warri Division and after intervening proceedings before another Judge. Therefore, this appeal shall be determined by me based on the sole issue formulated by the Appellant’s learned counsel.
SOLE ISSUE
Whether in the circumstances of the suit, the learned trial Court was right in its ruling to have ordered a trial of the suit de novo?
The learned counsel for the Appellant submitted that, under the provisions of the High Court Laws of Edo State and the Edo State High Court (Civil Procedure) Rules, 1988, both as applicable in Delta State and the inherent jurisdiction of the trial Court, the learned trial Judge lacks the competence to order a trial de novo in the circumstances of the suit. In the opinion of the Appellant’s learned counsel, the proceedings of 16th June, 2003 presided over by Makwe J., on his transfer back to Warri Division, amounted to a trial de novo. In which case, the Respondent was obliged to call fresh evidence in proof of his case. Hence, the trial Judge in his view ought to have struck out the suit of the Respondent after the Respondent had closed his case without calling fresh evidence.
In the same breath, the learned counsel for the Appellant submitted that, in the absence of very clear provisions in the High Court Law and the Rules of the trial Court, the learned trial Judge, in the given circumstances of the instant matter, was devoid of power to make the order being appealed, under the inherent jurisdiction of the court. He cited in support of his argument, the case of: Tinubu v. Khalil & Dibbo Transport Ltd. (2002) f f NWLR (Pt.677) p.171 at pgs. 182, paras. C-E and 184- 185, paras. H-8.
Furthermore, the Appellant’s counsel argued that, if the learned trial Judge was allowed to hear the suit de novo, that would amount to the learned trial Judge presiding over the matter thrice.
That, the Respondent would equally have been afforded the third opportunity to present his case before the same trial Judge, amounting in his view, to litigation in perpetuity.
It was also the contention in favour of the Appellant that, the question of the retrial of the suit was raised by the learned trial Judge, suo motu. That, the parties were not afforded an opportunity to address the court on the desirability of same. That the Appellant would be more adversely affected by the decision of the trial Court being- appealed. That the failure to call on the counsel for the parties to address the court on the issue amounted to a serious breach of the Appellant’s right to fair hearing in the suit. In support of this contention, reliance was placed on the cases of: (1) Provisional Liquidator, Tapp Industries Ltd. v. Tapp Industries Ltd. (1995) 5 NWLR (Pt. 393) p. 1 at p. 41, paras. E – F and (2) M. Olatunji v. Alhaji M. Adisa (1995) 2 NWLR (Pt. 376) p. 167 at p. 188, paras. A – C.
As earlier on stated, the question for determination in this appeal, in my view is the propriety of the ruling of the trial Court in the given circumstances of the facts which have given rise to it.
Before proceeding with the said question for determination, I consider it trite to take up the contention of the learned counsel for the Appellant that, the ruling of the trial Court being appealed was predicated upon an issue raised suo motu by the learned trial Judge and without affording the two parties’ counsel an impute into same. My instant reaction is that, this contention is, with respect, misconceived. The said issue, that, the suit was not commenced de novo was first raised by the Appellant’s learned counsel. See the submissions of the learned counsel at pages 46 to 47 of the record of appeal, which he made during the examination-in-chief of the Appellant’s first witness. The said submissions have been reproduced earlier on above, especially the underlined portion of same. This point was responded to in the address of the learned counsel for the Respondent – see lines 6 to 13 at page 51 of the record of appeal. For easy reference, the said Respondents learned counsel’s submission is also hereunder reproduced thus:
Mr. Ekpe addresses court and replies to Mr. O. Ovrawah’s address. He submits that the hearing in this case started De Novo before my brother Judge and it is regular for me to continue hearing irrespective of the proceedings before my brother Judge when I returned to this court. He cites 1st Bank of Nig. Plc v. Tsokwa (2003) FWLR (Pt. 153) 205. He submits that the defence is a waiver to this application.
Back to the crux of this appeal. The learned counsel for the Appellant has posited that, the learned trial Judge was wrong to rule that the trial of this matter must start de novo.
The phrase de novo connotes, a new, a fresh, or a beginning or a start – see the case of Babatunde v. P.A.S. & T.A Ltd (2007) 13 NWLR (Pt. 1050) p. 113, where, Muhammed, JSC at p. 46 para. B and p. 147, paras. A – D, stated as follows:
In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means (trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing de novo court hears matter as court of original and not appellate jurisdiction. …………..:..that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.
In the case of: Fadiora v. Gbadebo (1973) NSCL (Vol. t) p. 121, Idigbe, J.S.C, had the following to say:
We think that in trials de novo the case must be proved anew or rather re-proved, de novo and, therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.
Therefore, an order of retrial or a trial de novo, simply means, an order that the whole case should be retried or tried anew as if no trial whatsoever had taken place at all in the first instance. See the case of: Babatunde v. P.A.S. & T.A. Ltd. supra at p. 147, paras. F-G.
I have gone through the provisions of both the High Court Law and the High Court (Civil procedure) Rules, of Delta State, none of the provisions forbids a Judge of that court from making an order of retrial or trial de novo. The learned trial Judge in the instant case was well within jurisdiction to make the order for retrial. The next pertinent question is, was the order properly made in the given circumstances of the facts of this matter?
In my view, when on 16th June, 2003, the learned Makwe J sat afresh to adjudicate upon the case, he knew that Uwheriavwe J. had adjudicated upon the case de novo, and there were intervening proceedings in the suit. He failed to ask counsel for the two parties whether they would want the trial commenced by Uwheriavwe J. to be continued. There was therefore no consent of the parties, express or implied, to continue with the said trial. The learned counsel for the Appellant submitted in the Appellant’s brief of argument that, the trial of 16th June, 2003 Makwe J., is deemed, a trial de novo. This is a retraction from the position taken by him at trial that, the trial on the said date was a continuation of the trial de novo commenced by Uwheriavwe J. on 16th April, 2002. Either way, I disagree with the learned counsel’s said conflicting views.
On 16th June, 2003, Makwe J,. had the following to say:
“At the instance of the plaintiff this case is further adjourned to 23/7/2003 for continuation of evidence in the plaintiff’s case. The plaintiff’s case shall be closed on the next day of hearing……….”
That cannot be referred to as a trial de novo, but rather, it was a continuation of the previous trial adjudicated upon by Hon. Justice Uwheriavwe.
I am of the humble but firm view that, the trial adjudicated upon by Uwheriavwe J., having been truncated by his retirement, Makwe J., on r6th June, 2003, ought to have commenced the hearing of the suit de novo in the given circumstances of the facts as stated in the introductory portion of this judgment. Therefore, I hold that the entire proceedings before Makwe J., from the 16th June, 2003 to 27th July, 2004, were null, void and of no legal consequence. Indeed, the proceedings before Makwe J., before his transfer out of Warri Division and those before Uwheriavwe J., before his retirement were equally legally inconsequential.
Therefore, the whole proceedings of the trial Court thus far can not be said to be any step taken by the Respondent in the prosecution of his action against the Appellant. Consequently, the order of a retrial or trial de novo made in the ruling of the trial Court on 27th July, 2004, being appealed, was the proper order to make in the circumstance.
Before I proceed to make the appropriate consequential orders herein, I consider it trite to make the following observations regarding the handling of this matter by Makwe J. It is trite both in law and practice that, there is only one High court in each State of Nigeria. However, judicial divisions are created for administrative convenience to enable the wheels of justice run speedily and smoothly at that. Therefore, judicial divisions are not separate or distinct courts, but rather, they are branches of one stem, the High Court. See the cases of: (1) Aliyu v. Ibrahim (1992) 7 NWLR (Pt.253) p. 361(2) Merchant Bank of Africa v. Owoniboys Technical Services Ltd. (1994) 8 NWLR (Pt. 365) p. 705; (3) Ogagie v. Obivan (1997) 10 NWLR (Pt. 524) p. 179 and (4) Egbo v. Agbara (1997) 1 NWLR (Pt. 481) p. 2931.
This Court in the case of: Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) p. 114 at 133, paras. D – E, restated the point that matters of transfer orders, judicial divisions, fiat, etc., are strictly administrative, hence, they do not go to jurisdiction. Therefore, I lend credence to the dictum that, a Judge of a judicial division of the High court of a state does not lose the jurisdiction to “continue” to sit and adjudicate upon a matter by the mere fact of his transfer to another judicial division of the same State. What is more, it is the practice these days that, when Judges are transferred to new judicial divisions, matters which were part-heard in the previous judicial divisions where they previously sat are expected to be concluded. Albeit, Chief Judges may grant fiat or issue circulars to this effect, there being no specific provisions of the law or rules of the High Court requiring such, there is a presumption that, Judges in alliance with parties’ counsel must see to it that, all part-heard matters are smoothly concluded.
In the instant matter, if the learned Makwe J., had not abandoned this matter when he was transferred out of Warri Division in the first instance, the present scenario would have been avoided. Viewing this matter from both sides of a coin, the learned Makwe J., is responsible for truncating the prosecution of this matter. The learned Makwe J., with respect was clearly in error when he held in his ruling under scrutiny, that, when a Judge is transferred from one Judicial Division to another, he loses the power and jurisdiction to administer justice in the former Judicial Division except the Chief Judge issues a warrant transferring the case or on an application (whatever the latter means), to that effect.
The error has caused needless all-round inconvenience not only to the parties in this matter but also occasioned a waste of judicial time and resources.
Consequent upon my line of reasoning above, I uphold the order of the learned trial Judge that, the suit of the Respondent against the Appellant shall be tried de novo. Contrary to the learned counsel for the Appellant’s view that only the Respondent will have a chance to perfect his case, it is quite obvious that both the Respondent and Appellant would be afforded the opportunity to present anew their respective cases, whenever the suit is tried de novo.
I must also agree with the learned counsel for the Appellant that, in the interest of justice to all in this matter, it will be inapposite to allow Makwe J., to proceed with the adjudication of this matter.
Therefore, the order of the learned trial Judge adjourning the suit to a date for adjudication upon same by him is set aside. In its place, it is hereby ordered that, the suit No. W1328199 is remitted to the Chief Judge of Delta State for re-assignment to another
Judge of the High Court of the State other than Makwe J., for expeditious trial de novo.
In essence I hold that this appeal lacks merit and it is hereby dismissed.
I make no order for costs.
GEORGE OLADEINDE SHOREMI, J.C.A: I have read before now the judgment just delivered by my learned brother Oyebisi Folayemi Omoleye (JCA) and I agree with his reasoning and the conclusion reached. I also ordered that the Suit No. W/328\99 be remitted to the Chief Judge of Delta State for re-assignment to another Judge of the High Court of the State other than Makwe J. I make no order for costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother OMOLEYE, JCA. I also agree that the preliminary objection ought to be upheld and I hereby so uphold same. Appeal is struck out for being incompetent. I abide by the consequential order for costs in the lead judgment.
Appearances
Ogaga Ovrawah Esq.For Appellant
AND
R. A. Ekpe Esq.For Respondent
