Alhaji Inuwa Dantumbu V. Chief Peter Adene & Ors (1987)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

Before Chigbue J., on March 18, 1985, at the Kaduna High Court, the first Respondent, Peter Adene, as plaintiff obtained judgment against the appellant herein, then first Defendant, as well as the second to the fifth Respondents, in an action for trespass, possession, and perpetual injunction in respect of a parcel of land, Plots No. A and B of 1.75 acres also known as No. BB 29 Ibrahim Taiwo Road, Kaduna, covered by a Certificate of Occup1961. The ancy No. 8128 for a term of 40 years commencing from April 14, 1983, and registered as No. 17, Page 17, Volume 27 in the Land Registry Kaduna. Dissatisfied with that judgment, the first Defendant in the court below brought this appeal.

Although, originally, the appellant brought the appeal against the first respondent only, on the 22nd day of October, 1986, the second, third, and fourth, and fifth respondents applied for and obtained an order that all four be joined as respondents in this appeal. On 2nd October 1986, the 1st respondent sought and obtained an order, inter alia, to file, and did file, and served a Notice of intention to contend that the judgment of the lower court be affirmed or varied on other grounds, to wit:-

1. The Master-plan which was rejected by the learned trial judge was clearly admissible.
2. The question whether or not the land in dispute was within the Urban Area so designated was one of the vital issues for determination in the suit.
3. The evidence in the circumstances conclusively proved that the land in dispute is within Urban Area.

Dated this 6th day of August, 1986.

Similarly, Mrs Offor, senior state counsel, Kaduna State Ministry of Justice, also sought and obtained a similar order that the decision of the court below of 18th March 1985 be affirmed on one other additional ground as follows:-

1. That the plan No. NC/MISC 18 which was further extended by the Kaduna State (Designation of Land in Urban Area) Order 1982 and numbered NC/MISC 46 forms part of an order made in pursuance of a Law which the learned trial judge ought to have taken judicial notice of without the necessity of tendering it.

The grounds of appeal are as follows:-

Learned trial High Court judge erred in law in holding that the plaintiff had adduced sufficient evidence to prove that the land in dispute lies within Urban Area.

Particulars of Error

a. There is no evidence before the trial court establishing that the ingredients of the schedule attached to the Kaduna State (Designation of land in Urban Area) Order of 1980 have been proved.

b. It is not sufficient from the oral evidence of the only co-defendants’ witness (that of PW2) to conclude that the land in dispute lies within Urban Area.

2. The learned trial High Court judge erred in law in holding that the Governor of Kaduna State has absolute power to issue Certificate of Occupancy in both Urban and non-Urban Areas.

Particulars of Error

a. The general and definite defect of intendment of S.5 of the Land Use Act 1978 has been whittled down by the operation of the subsequent S. 6 of the said Act.

b. The Governor has no power to issue a Certificate of Occupancy over a piece of land in respect of which a Certificate of Occupancy was already issued by a Local Government without first of all revoking by deed the one issued by the Local Government.

3. The learned trial judge erred in law when he held that the plaintiffs/respondent’s title to the land, Exhibit C, takes priority over that of the defendant/appellant, Exhibit G.

Particulars of Error

1. The defendant’s/appellant’s title to the piece of land, Exhibit G, was issued earlier than the respondents’ documents of title, Exhibit C.
2. A document of title issued earlier in time takes priority both in law and equity over that one issued later affecting the same piece of land.
3. The learned trial judge erred in law in holding that the only remedy opened to the plaintiff was compensation.

Particulars of Error ”

There was no evidence showing compulsory acquisition of the appellant’s land by the Kaduna State Government as stipulated by S. 40 of the 1979 Constitution of the Federal Republic of Nigeria as amended.

5. The decision of the learned trial judge cannot be supported having regard to the evidence adduced.

Relief Sought From the Court of Appeal

An order allowing this appeal and dismissing the plaintiffs case in its entirety. An order granting the land in dispute to the defendant/appellant.

Briefs of arguments were filed, and served between the parties and the appellant’s brief raised the following issues:-

i. Who among the parties hereto has a better title to the land and whose interest was prior to the other?

ii. Whether the court has jurisdiction to adjudicate on the matter considering the fact that the Kaduna Local Government has issued a certificate of occupancy No.037005 affecting the land to the appellant.

iii. Whether the piece of land in dispute lies in an Urban Area or non-urban Area.

IV. If the land is within a non-urban area whether the certificate of occupancy issued to the appellant, Exhibit G, confers a better title on him than the respondent’s document of title, Exhibit C.

At the hearing of this appeal J. B. Majiyagbe Esq., SAN, learned counsel for the first respondent having given due notice, argued, in limine, the following preliminary objection:-

“That Ground 2 of the grounds of appeal, not being a sustainable ground in Law, should be struck out.

AND TAKE NOTICE that the grounds of the said objection are as follows:-

1. The learned trial judge did not make the said holding as alleged by the appellant in the said ground 2 of the grounds of appeal.
2. Whereas by virtue of Order 3 Rule 2(2) of the Rules of this court an appellant who alleges “a misdirection or error in law” shall state clearly “the particulars and the nature of the misdirection” or error, the “particulars” stated by the appellant are really not D particulars of misdirection or error of law as alleged in Ground 2.
3. The ground of appeal discloses no reasonable ground of appeal.

J. B. Majiyagbe Esq. learned S.A.N., for the first respondent in arguing the preliminary objection submitted that ground 2 of the Grounds of Appeal should be struck out in that the particulars of errors in law complained of were not set out as required by Order 3 Rule 2(2) of the Court of Appeal Rules, 1981 which provides as follows:-

“(2). If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection, or error shall be clearly stated.”

He submitted that the word absolute was inept. The learned Senior Advocate of Nigeria then supported his submission with two cases: Anadi v. Okoli (1977) 7SC. 57; Anyaoke v. Adi (1986) 3 NWLR Part 31, p.731 at page 734.

  In reply, Dalhat Esq. learned counsel for the appellant submitted that the particulars stated under Ground 2 and expatiated in the appellant’s brief were sufficient, and that the word “absolute” objected to was insignificant, and does not change the fact that the Governor of Kaduna State had no power to issue a Statutory Certificate of Occupancy on a parcel of land without first revoking an existing Customary Right of Occupancy in respect of the same parcel of land. Yahaya Esq., learned Solicitor-General Kaduna State, associated himself with the submissions of learned Senior Advocate of Nigeria, Majiyagbe Esq.

It is now appropriate, as indicated by this Court, at the hearing, to give a ruling on the preliminary objection as part of this judgment. Order 3 Rule 2(2) of the Court of Appeal Rules, 1981, is in pari materia with order 7 Rule 2(2) of the Supreme Court Rules, 1961. The Federal Supreme Court, per Abbot F.J. in Adeniyi &Anor v. Saka Disu (1958) 3 FSC at p.104, opined on a ground of appeal alleging misdirection, without specificity, thus:-

“Four grounds of appeal were filed but the first was struck out because it consisted merely of quotations from the judgment of the learned trial judge, headed by a statement that he had misdirected himself. That is not sufficient. A ground of appeal alleging misdirection should always, in addition to quoting the passage where misdirection is alleged to have occurred, specify the nature of the misdirection alleged. The fourth ground of appeal was abandoned.”

In Okorie & Ors v. Udom & Ors (1960) 5 FSC. p. 162 at 164, Ademola C.J.F. reiterated the same rule of procedure thus:-“Of the three grounds of appeal filed, objection was taken by counsel for Respondents to ground (c), which was one of misdirection, on the ground that in the three instances quoted the particulars of the various misdirections were not given. It has been pointed out from time to time that merely quoting portion of a judgment, without showing in what respect the judge misdirected himself, is worthless. Counsel was not allowed to argue this ground of appeal, and it was accordingly struck out.”

More recently, the Supreme Court in Anyaoke & Ors v. Adi & Ors (1986) 3 NWLR part 31 page 731 at 741 per Uwais JSC. restated that rule of procedure thus:-

“Now Order 7 Rule 2(2) of the Supreme Court Rules, 1961, which was applicable to the Court of Appeal at the material time that this case was heard by that Court, states-

“If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or the error shall be clearly stated.”

The effect of this is that once an “error in law” or “misdirection” is alleged in a ground of appeal the particulars of the error or the misdirection alleged must be given. It is not sufficient to just quote or paraphrase (as in this case) the portion of the judgment to which the error of law or the misdirection is contained. See Adeniji & Anor v. Saka Disu, 3 FSC. 104; Vincent Okorie & Ors v. Phillip Udom & Ors., 5 FSC. 162 at p.164 and Okeke Amadi’s case (supra) at pp. 63-64. It follows therefore that the Court of Appeal was right in striking out grounds (i), (ii) and (iii) which have been quoted earlier in this judgment.”

It is therefore clear beyond paradventure that a ground of appeal, which alleges error of law, or misdirection by the Court, must state the particulars of such error or misdirection as it appears on the record, and show in what respect the court erred in law or misdirected itself. The particulars showed the point of the complaint or misdirection, in that the powers of the Military Governor under Section 5 of the Land Use Act to issue Certificates of Occupancy in respect of both urban, and non-urban or rural land, is limited by the powers of the Local Government under Section 6 to issue a Customary Certificate of Occupancy in respect of non-urban land in so far as the instrument issued by the latter is earlier in time to that issued by the former. Thus, the legal estate, or term of years absolute, created by a customary right of occupancy issued by a Local Government creates priority of estate so as to render null and void, any subsequent certificate of occupancy issued by a Military Governor in respect of the same parcel of land, unless the Customary Certificate of Occupancy aforesaid was validly revoked by the appropriate authority, that is, the Local Government, whether or not at the instance of the Military Governor, before the Military Governor issued a Certificate of Occupancy, in respect of that same parcel of land. A fortiori as the appellant herein was in possession of the land on which he erected some structures, the first respondent herein as plaintiff, having sued the appellant as first defendant for possession of the said parcel of land, and an injunction. See Orasanmi v. Idowu (1959) 4 FSC. page 40; Karimu Ayinla v. Sifawu Sijuwola (1984) 5 SC. page 44, at p.76. The Legal position will be reversed if the parcel of land was declared by the Governor as lying within the Kaduna Urban Area in the appropriate Legal Notice at the time the Local Government issued its Customary Certificate of Occupancy to the appellant. See Chiroma v. Siwa (1986) 1 NWLR Part 19page 751 at p. 757 to 758; Governor of Kaduna State v. Dada (1986) 4 NWLR Part 38, page 687.

In the circumstances, the preliminary objection of J. B. Majiyagbe Esq. S.A.N. learned counsel for the first respondent to the effect that Ground 2 lacks particulars and is incompetent is misconceived and is struck out accordingly.

M. M. Dalhat Esq. learned counsel for the appellant adopted the appellant’s brief of arguments in support of the appeal. J. B. Majiyagbe Esq. learned SAN also adopted the brief of arguments filed on behalf of the first respondent. In expatiating on the first respondent’s brief, viva voce, he submitted that the first respondent’s title to the land was established, not only by the Statutory Certificate of Occupancy he holds, but it was also founded on the fact that the parcel of land in dispute was designated as part of Kaduna Urban Area by virtue of Kaduna State (Designation of Land in Urban Area) Order, KD SLN No.7 of 1982 which came into operation with effect from the 16th day of August, 1982. Section 2 of the Legal Notice provides as follows:-

“2. Without prejudice to the provisions of the Kaduna State (designation of Land in Urban Area) Order, 1980 the area of Kaduna State delineated on the plan numbered NC MJSC 46 which is deposited in the office of the Kaduna State Surveyor General at Kaduna and shown on such plan surrounded by a blue broken verge line is hereby designated as area constituting land in urban area.”

When the court asked the learned SAN what happened during the trial to the Surveyor’s plan referred to in the said Section 2, he informed the court that it was not admitted on the basis that it was not pleaded. He finally submitted that the appeal was misconceived and should be dismissed. Whereupon the court asked the learned SAN the question that should the court rule that the Survey plan was admissible on the basis that the lower court should have taken judicial notice of the said Legal Notice, as well as the Survey plan recited in it, what would be the consequence of the rejection of such vital admissible evidence?; should the plaintiff be non-suited or an order of re-trial made by the Court? He replied that the appeal should be dismissed, if that failed, then an order of non-suit should be entered.

Abubakar Yahaya Esq. learned Solicitor-General for Kaduna State, also adopted the brief filed jointly on behalf of the second, third, fourth, and fifth respondents. He also endorsed the submissions of the learned SAN Majiyagbe Esq. on behalf of the first respondent. In addition, he submitted that the Governor of Kaduna State has an absolute power to grant a Statutory Certificate of Occupancy for land in Kaduna whether or not in Urban Area by virtue of Section 5(1)(a) of the Land Use Act; He then referred to the Town and Country Planning Law (Cap. 130) Laws of Northern Region of Nigeria applicable in Kaduna State, and the Kaduna Capital Development Board, (Appointment of Planning Authority) Notice, KD SLN No.7 of 1981, by which the Kaduna Capital Development Board was designated as the planning authority for the area specified in the schedule delineated by the survey plan numbered NC/MISC. 18 deposited in the office of the Surveyor-General, Kaduna. That plan was amended to expand the Kaduna Capital Territory to include Ibrahim Taiwo Road, on which the disputed land is situate by KD SLN No.7 of 1982, Kaduna State (Designation of Land in Urban Area) Order, 1982. He submitted that it did not matter whether the plan was pleaded or not, as the Court had to take judicial notice of it under Section 73 of the Evidence Act.

The Court then repeated the question put to the learned SAN. That assuming that the gazette notice was admitted or taken judicial notice of including the surveyor’s plan it recited, as the court itself could not give any evidence on the survey plan, what happens? Dalhat Esq. learned Solicitor-General then submitted that an order of non-suit would be apt. In this case, paragraph I of the statement of claim provides as follows:-

“1. The plaintiff is a Nigerian, businessman and owner of the property covered by certificate of occupancy No. NC 8128. The said property lies along Ibrahim Taiwo Road, Kaduna and is more particularly described as plots A & B shown on Kaduna sheets 61 and 68.”

The 1st defendant and appellant herein specifically denied paragraph 1 of the statement of claim, inter alia in paragraph 2 of his statement of defence. Although the 2nd, 3rd, 4th and 5th defendants admitted paragraph I of the statement of claim in paragraph 2 of their joint statement of defence, the plaintiff still had the onus to prove that he has a valid statutory certificate of occupancy in respect of the land in dispute, and that the said parcel of land is within the Kaduna Capital Territory, as designated in KD SLN No.7 of 1982 by calling a surveyor to testify and to plot the land in dispute within the master plan recited in the Legal Notice No.7 of 1982, in custody of the Kaduna State Surveyor General. At the trial, the plaintiff tendered his Statutory Certificate of Occupancy No. 8128 of 30th May 1983, Exhibit C, but called no surveyor to plot his land on the Kaduna Capital Territory master plan, even though he pleaded Kaduna sheets 61 and 68. When learned counsel for the 2nd to 5th defendants sought to tender it through the Deputy Surveyor General of Kaduna State, the Court rejected it on the ground that it was not pleaded.

At that stage, by virtue of Section 134 of the Evidence Act, the plaintiff had failed to prove his case. That section provides as follows:-

“134(1). Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

It is not sufficient as argued by the learned Solicitor General, and the learned SAN for the respondents, that the lower court should have taken judicial notice of SLN No.7 of 1982 including the master plan recited in it. Even if it did an expert witness, the Surveyor General, his deputy, or any registered land surveyor had to be plaintiffs witness to interprete the master plan to the court and to locate the land in dispute within the Kaduna Capital Territory Area. That was not done. Were the Court of Appeal itself to take judicial notice of the subsidiary legislation, it will suffer the same handicap; it cannot give evidence on the master plan. This case brings to the fore the leading cases on proof of title to land which the Supreme Court, over the years, had regaled the legal profession, one but not the least of which is Kaiyooja v. Egunla (1974) 12 SC. page 55 at p. 61 thus:-

“We are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiffs to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well known rule as was laid down in Akpan Awo v. Cookey Garn, NLR 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title, and that it never shifts to the defendant throughout the trial. The difference therefore, lies, not in the standard of proof, but on the burden of proof.”

The position at the trial was that the plaintiff/first respondent relied on Exhibit C, the Statutory Certificate of Occupancy No. 8128 of 30th May, 1983, whilst the first defendant/appellant relied on his Customary Certificate of Occupancy No. 037005 of 27th April 1983 Exhibit D, which was backed up by his predecessor in title’s customary certificate of occupancy No. 633742 of 21st December 1982. The primary question in the appeal is whether or not the land in dispute is within Kaduna Urban Area. To this, first respondent as plaintiff provided no answer, and it was vital to his case. In short he failed to prove his title to the land as his statutory certificate of occupancy has to be related to the area designated as Kaduna Capital Territory. The next question is as the plaintiff held a statutory certificate of occupancy No. 8128 of 30 May 1983, and the first defendant/appellant held a customary certificate of occupancy No.037005 of 27th April 1983, both of which were in respect of the same parcel of land, which of the two has a prior valid interest? Here again, the key is in whether the disputed land was in an urban or rural area; and if urban, with effect from what date? The plaintiff also provided no answer. In such a situation, should the lower court have dismissed the plaintiff’s case or non-suit him? In the final analysis, the plaintiff has to prove his case first, before the defendants can, if need be, break down that case, brick by brick. Or is it a proper case to order a retrial?

My humble view is as formulated in three propositions herein.

Proposition 1

Where the plaintiff only proves a probable case and not one proved by a preponderance of evidence in a trial where the evidence led by the defendant in proof of its case is not preponderant so as to entitle the defendant to judgment in its favour, it is the duty of the Court to non-suit the plaintiff.

Proposition 2

Where the plaintiff’s case is as in proposition 1, and the probability of the evidence led by the defence is preponderant enough, the case is dismissed and the judgment is in favour of the defendant.

Proposition 3

Where, as in this case, the situation is as in proposition one, because the trial court wrongfully rejected admissible evidence, or wrongfully admitted inadmissible evidence, which has affected the decision of the Court then the trial court has occasioned a miscarriage of justice, and an appeal court will order a retrial. See Section 226 of the Evidence Act.

In ordering a non-suit, the court takes into consideration that a plaintiff had given some evidence but not satisfactory evidence of his claim in a trial where the defendant gave no evidence or insufficient evidence, that is, the defendant had not by a preponderance of evidence proved his case, and is therefore not entitled to the judgment of the court. That is the position at the end of the trial of this action. The plaintiff produced a statutory certificate of occupancy, whilst the defendant produced a customary certificate of occupancy in respect of the same land, and there was no satisfactory evidence as to whether or not the land was urban land. Each of the two certificates of occupancy is valid, prima facie, respectively under Sections 5 and 6 of the Land Use Act, 1978. Under section 5, it is lawful for the Military Governor, inter alia, to grant statutory rights of occupancy in respect of land whether or not in an urban area. Also, under Section 6, it is lawful for a Local Government to grant customary rights of occupancy in respect of land not in an urban area. The key to the question is if the Local Government Grant of customary right of occupancy was made while the land was rural, and not urban, then the defendant would have acquired a legal estate in the land prior to that of the plaintiff, and the grant to the plaintiff by the Governor would only be valid if the prior grant by the Local Government was revoked. See The Governor of Kaduna State v. Dada (1986) 4 NWLR Part 38, p.687 in which the Supreme Court upheld the decision of this Court and this Division, in particular, that Section 28 of the Land use Act, 1978 made provisions for the revocation of a right of occupancy and that the provisions of the Act prevail over the provisions of Section 34 of the Land Tenure Law which also made provisions for the revocation of a Certificate of Occupancy under which the Governor purported to revoke the certificate of occupancy in question, thus rendering the revocation null and void.

Order 26 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1977, provides as follows:-

“3. The Court may, having first given the parties the opportunity of being heard on the point, non-suit the plaintiff in any suit where satisfactory evidence shall not be given entitling either the plaintiff or the defendant to the judgment of the Court.”

All our High Courts have similar rules. The Supreme Court in considering the Supreme Court (Civil Procedure) Rules, 1945, Order 45, Rule 1 which was then applicable in all High Courts in Nigeria in Awosanya v. Alhaji Algata & Anor (1965) 1 All NLR p.228 at 230 held that if the dismissal of a claim might work injustice to the plaintiff and no injustice or hardship need result to the defendant from non-suiting the plaintiff, an order of non-suit would produce a more just result. In that case, the statement of claim averred that there was a partition of family land among sections of the family which was traversed by the defence, a copy of the court order including the agreed settlement by partition was produced in evidence, but as in the case in hand, the plans annexed to the Court order were not produced. A surveyor called by the plaintiff sought to tender a plan showing the partition, but it was rejected under Section 23 of the Survey Act, as not having been countersigned by the Director of Surveys, the court then held:-

“The only question seriously argued before us is whether it was proper to dismiss the claim, or whether an order of non-suit would produce a juster result. It is not disputed that there was a partition of the family land, in consequence of which the branch to which the original vendors belong acquired exclusive ownership of a portion of the land. The effect of dismissing the claim for the reason given is that the plaintiff, who purchased in good faith, would be precluded from ever setting up his title against the defendants or their privies, and we think this might work an injustice. If he should renew his present claim and produce satisfactory evidence of his title as owner, it would remain open to the defendants to put forward once again any of the other grounds on which they have resisted it in the present suit, and no injustice or hardship to them need result.”

In Craig v. Craig & Anor (1961) 1 All NLR p.173 at 177 the Supreme Court per Coker JSC. held that a non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs. See also Amobi v. Taxaco African Ltd. (1972) 3 SC. p.104. Thus in Anyaoke v. Adi (1986) 3 NWLR Part 31 p.731 at p.744, the Supreme Court refused to order a non-suit when the court held per Uwais JSC, as follows:-

“An order of non-suit becomes applicable only when the provisions of Order 48 Rules 1 and 2 of the High Court Rules, Cap. 61 (Laws of Eastern Nigeria, 1963) have been satisfied, the rules read:-

“1. The Court may in any suit, without the consent of parties, non-suit the plaintiffs, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.

2. The Court may, upon motion for new trial, or review of judgment, order a non-suit or judgment to be entered, although no leave has been reserved at the trial.”

The appellants were asking for a declaration of title, the grant of which depended on the discretion of the Court. Since they failed to prove that the land both verged pink and green in exhibit A was owned exclusively by them, and the respondents on the other hand had successfully proved that the land in dispute was communally owned by Ezenifite, an order for non-suit could not have been appropriate. For to enter a non-suit would have denied the respondents of the judgment that they deserved.”

Proposition three above would appear to be applicable to the facts of this case because the wrongful rejection of Kaduna Master Plan by the trial court disabled the parties from proving to the court whether or not the land in dispute was in Kaduna Urban Area and with effect from what date? As that error was not that of a party, a non-suit cannot be ordered. It was the error of the court, that has affected the decision of the trial court; a miscarriage of justice was thereby occasioned, and a retrial de novo before another judge is the proper order. See Section 226 of the Evidence Act; Ajayi v. Olu Fisher (1956) I FSC. p.90 per Nageon de Lestang F.J. at p.92, thus:-

“It remains to consider whether notwithstanding the wrongful admission of evidence the learned judge was justified in entering judgment for the respondent. Section 225 of the Evidence Ordinance (Cap. 63, Laws of Nigeria, 1948) provides that the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court of Appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. Conversely the wrongful admission of evidence may be a ground for the reversal of a decision when it appears to the Court of Appeal that the evidence has affected the decision and that such decision would have been different if the evidence had not been admitted. But what is the Court of Appeal to do when it cannot assess the effect of the inadmissible evidence? Is it entitled to reverse the decision? Clearly not, in my view.

The position seems to me to be this. If the Appeal Court is of the opinion that the inadmissible evidence cannot reasonably have affected the decision, it will not interfere. If it is of opinion that without the inadmissible evidence the decision must have been different, it will interfere. If, however, there is other evidence in the case, and although the Appeal Court thinks that the inadmissible evidence must have influenced the decision, yet it is unable to say that without the inadmissible evidence the decision would or would not reasonably have been different, its proper course will be to order a retrial. In my view, the present case falls within this third proposition.”

There is in fact little difference between a non-suit and a retrial, save that in a non-suit, the parties revert to their separate positions before litigation commenced. The plaintiff, if he wishes, has to make fresh efforts to file a new action and pay fresh court fees; whilst in a re-trial no fees are paid, and the trial court takes the initiative; it issues fresh hearing notices to the parties to commence a new trial. What then is the law on ordering a re-trial? This Court, in this Division made a contribution in that regard in Shija v. Fari (1986) 2 NWLR Part 21, p.147 at p.155 per Wali JCA thus:-

“On the question of the High Court’s exercise of its discretion to order a retrial, an appeal on this point can only be entertained when in exercising the discretion, the court has acted under a mistake of law, or in disregard of principles or under misapprehension of facts, or has taken into account irrelevant matters or on the ground that injustice could arise. See Nana Prah Agyinsaim of Kashea v. George Grant & Co. of Secondi & Sirikiyi of Bremen 8WACA 181 and Akintunde Banjoko Solanke v. Augustine Ajibola (1969) 1 NMLR 253; Abeki v. Amboro (1961) All NLR 368; Resident Ibadan v. Lagunju 2 NLR 102: (14 WACA 549). None of the situations mentioned in the cases supra is present in this appeal. I am therefore of the view that the exercise of the discretion by the Kaduna High Court to order a retrial is both equitable and judicious.”

Thus a non-suit is ordered, generally, when one of the parties, usually the plaintiff, proves his case up to a point but some facts needed to prove his case by a preponderance of evidence were not adduced in evidence. A retrial is ordered, generally, when a trial court makes a mistake of law, misdirects itself, wrongfully rejects or admits evidence which has affected his decision one way or the other, or has occasioned a miscarriage of justice. In the recent case of Bakare v. Apena & Ors (1986) 4 NWLR p.1 at p. 16 – 17, the Supreme Court per Nnamani JSC. reviewed the law on retrial thus:-

“The last matter which I would wish to discuss is the order of retrial made by the Court of Appeal which Chief Sowemimo also fiercely attacked. The principles which govern the order of retrial were settled by this Court in Yesufu Abodundu & Ors v. The Queen (1959) 4 FSC. 70 at 73. There the court stated:-

“We are of the opinion that, before deciding to order a retrial, this Court must be satisfied

a. that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11(1) of the Ordinance:

b. that leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant;

c. that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;

d. that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial;

e. that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”

Although this was a criminal case those principles are applicable to civil matters and principle (a) is particularly relevant, as I shall shortly show, to this case. These principles have been upheld by this Court in Okafor v. The Stale (1976) 5 SC. 13; Ikhane v. CO.P. (1977) 6 SC.119; Okpara v. The Republic (1977) 4 SC.53 and Evorokoromo v. The State (1979) 6 – 9 SC. 3. In Ayoola v. Adebayo (1969) 1 All NLR 159, this Court stated the further principle in these words:-

“An order for retrial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the same matter and certainly before deciding to make such an order we think that an appellate tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would be a miscarriage of justice….A retrial is not appropriate where it is manifest that the plaintiffs case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the Court.”

In the circumstances, the appeal succeeds, I adjudge and set aside the judgment of the lower court in favour of the plaintiff/first Respondent. In its stead, I hereby order re-trial of the case before another judge. The respondents shall pay N250 costs to the appellant. .

Other Citations: (1987) LCN/0039(CA)