Alhaji Yakeen Owonikoko & Ors V. Alhaji Alimi Arowosaiye (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The parties in this appeal were before Elelu-Habeeb J. of the Kwara State High Court of Justice sitting at Offa where the appellants as plaintiffs claimed in their writ of summons the following reliefs –

“(a) Declaration that the plaintiffs are the persons entitled to a customary/statutory Right of Occupancy over and above all that piece or parcel of land being, lying and situate at MAGBON AREA ERINILE, particularly the land called Am Family land.

(b) The sum of N2,000.00 being damages for trespass and waste committed on the land by the defendant.

(c) An Order of perpetual injunction restraining the defendant by himself, agents, servants, privies and others deriving title under him howsoever from disturbing trespassing, dealing with or in any other way tamper with the plaintiffs peaceable possession of the parcel of land.”

After the exchange of pleadings between the parties, the case went into full trial in the course of which the appellants called 6 witnesses while the respondent testified in his own defence and also called one other witness who testified for him. Learned counsel on both sides submitted written addresses to the trial court before the case was adjourned for judgment. In her judgment delivered on 21/12/93, the learned trial Judge without going into the merit of the case dismissed the claims of the appellants/plaintiffs in the following words –

“I therefore hold that I cannot entertain this action as a court of first instance because the matter had been adjudicated upon by the Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.

Accordingly the claims of the plaintiffs are hereby dismissed in its entirety for constituting an abuse of court process.”

The appellants as plaintiffs who were not happy with this decision of the learned trial Judge decided to appeal against it by filing their Notice of Appeal containing 10 grounds of appeal. The grounds without their particulars are as follows:-

“1. The learned trial Judge erred in law by holding that Exhibit D1 constituted esptoppel per rem judicatam in the circumstances of this case and this led her to dismiss the case of the appellants and this has occasioned a grave miscarriage of justice against the plaintiffs/appellants.

2. The learned trial Judge erred in law when she held as follows:-

In essence therefore I cannot rule that the subject matter and the parties in Exhibit D1 and in the case at hand are not the same.

3. The learned trial Judge misdirected herself on the facts when she held as follows:-

‘I therefore hold that 1 cannot entertain this action as a court of first instance because the matter had been adjudicated upon by Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.”

4. The learned trial Judge erred in law when she held that the present suit is an abuse of the process of the court and she thereby dismissed the entire suit of the appellants thereby shutting the gate of justice against the appellants forever.
5. The learned trial Judge erred in law by her total failure to consider and pronounce upon the merits of the case when from the evidence led by the appellants and their witnesses they are entitled to all the reliefs claimed.
6. The learned trial Judge erred in law by dismissing the claims of the plaintiffs in limine without considering at all or making findings on the merits of the claims as placed before her.
7. The learned trial Judge erred in law and caused a grave miscarriage of justice to the appellants when she suo motu without evidence led on the contents of Exh. D1 went to look at the contents and drew inferences therefrom when the respondents only dumped the document on the court and same was not read or taken as read at the trial.
8. The learned trial Judge erred in law when she held as follows:-

‘……….I have taken time to go through the record of proceedings in the Ibolo Grade I Area Court and the Notice’ of Appeal filed at the Upper Area Court, Ilorin (Exhibit D1 & D2 respectively).’

9. The learned trial Judge erred in law on the uses she made of Exhibit D1 when there was no evidence led on the contents of the said exhibit at the trial.
10. The decision is totally unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

Although the learned counsel to the appellants in the appellants’ brief and oral argument before us had maintained that 9 grounds of appeal were filed by the appellants, it is quite clear from the grounds of appeal I have quoted above, that the appellants’ Notice of Appeal in fact contains 10 and not 9 grounds of appeal.

In compliance with the rules of this court, briefs of argument were duly filed and served by the parties before the appeal came up for hearing on 22/1/97. The two issues set down for determination in the appellants’ brief of argument which were also adopted by the respondent in his brief are as follows:-

“1. Whether having regard to the capacities of the parties, the claim, the facts and other circumstances of this case, it can be said that the decision encompassed in Exhibit D1 was res judicata of the present case, moreover when there is no certainty and correlation between the land claimed in exhibit D1 and the present case and when the said exhibit was just tendered without evidence led on its contents to enable the trial court be sure of the uses to which the document was to be made.

2. Whether the learned trial Judge was right having regard to the fact that the parties have fully led evidence on the case to have refused to review, make findings of fact and pronounce on the merit of the cases presented before her as an alternative to the peremptory dismissal of the appellants’ case and whether the suit can be said to be an abuse of the process of the court.”

The respondent in addition to his brief of argument had also filed a respondent’s Notice dated 22/1/94 contending that the decision of the lower court of 21/12/93 which is the subject of this appeal should be affirmed on grounds other than those relied upon by the trial court.

On the first issue for determination it was submitted for the appellants that the proceedings and judgment of the Ibolo Area Court in Exhibit D1 did not fulfill the required conditions for being regarded or as providing a defence of res-judicata to the respondent. The case of Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383 at 405-406 was cited and relied upon by the appellants. The appellants had contended that the appellants having instituted the present action in a representative capacity, the parties in Exhibit D1 and the present case are not the same as there was no evidence that the appellants are privies of the former defendant in Exhibit D1. That there is also no nexus between the land in Exhibit D1 and the land in the present case. Relying on a number of cases one of which is Udo v. Obot & Ors. (1989) 1 NWLR (Pt. 95) 59 at 73, learned counsel to the appellants submitted that Exhibit D1 did not constitute a defence of res judicata in the present case to justify the learned trial Judge applying it against the appellants. Concluding his arguments on this issue, learned counsel to the appellants cited the case of Duruminiya v. Commissioner of Police (1961) NNLR 70 at 73-74 and argued that the conduct of the learned trial Judge in examining Exhibit D1 herself without the contents being tested in open court and applying the same in her findings against the appellants had occasioned a miscarriage of justice to justify setting aside the decision of the trial court.

The learned counsel to the respondent in the respondent’s brief however contended that the respondent had pleaded in paragraphs 27, 28, 29, 30 & 31 of his amended Statement of defence that he had sued the 3rd appellant/plaintiff before Ibolo Area Court in Offa for encroaching on this land at Magbon and the said Area Court gave judgment in favour of the respondent. That the respondent duly testified in support of these pleaded facts which justified the finding of the learned trial Judge that the appellants’ claims in the present action were an abuse of court process having regard to the decision in the case of Chukwunla v. Nwalu Chukwu & Ors (1953) 14 WACA 341. That having regard to the case of Tofi v. Uba (1987) 3 NWLR (Pt. 62) 707, learned counsel to the respondent observed that the lower court had inherent jurisdiction to prevent the abuse of its process. On the conduct of the learned trial Judge in examining Exhibits D1 & D2 while writing her judgment, the learned counsel to the respondent pointed out that the documents having been duly admitted in evidence, the learned trial Judge on the authority of Dina v. New Nigerian News Papers Ltd. (1986) 2 NWLR (Pt.22) 353 at 362, was justified in relying on the documents in her judgment in sustaining the defence of estoppel in favour of the respondent. That by considering the entire proceedings in Exhibit D1 including the judgment of the Ibolo Area Court, the learned trial Judge was right in upholding the respondent’s defence of estoppel per rem judicatam.

It is now settled that a judgment of court of competent jurisdiction can be relied upon in a subsequent litigation as per rem judicatam or to found issue estoppel or cause of action estoppel or estoppel by standing by. Our law in this respect requires that both the parties to an action and the court must know for which purpose proceedings and previous judgments pleaded and tendered in evidence are meant to serve. In the present case, the respondent said he had pleaded Exhibits D1 & D2 in paragraphs 27, 28, 29, 30 & 31 of his amended statemcntof defence in order to plead estoppel per rem judicatam. The said paragraphs at page 25 of the record read –

“27. The defendant avers he sued the 3rd plaintiff before Ibolo Area Court holding at Offa for encroaching on his land at Magbon and the said court gave judgment to the defendant on the 29th day of December 1989 in Suit No. 26/89 and case No. 37/89.

28. The defendant avers the 3rd plaintiff was dissatisfied with the judgment of Ibolo Area Court Grade I, Offa and appealed to Upper Area Court, Offa in Suit UAC1/3/90.
29. The defendant says the land at Magbon belonged to his family, and will rely on all the documents he pleaded.
30. The defendant will rely at the hearing of this case on all oral and documentary evidence he pleaded in this case.
31. Whereof the defendant says the plaintiff’s claim before this honourable (sic) is an abuse of court’s process and absolutely be dismissed with costs.”

It is quite clear from paragraph 27 of the respondent’s amended statement of defence above, that this claim against the 3rd appellant at the Ibolo Area Court was for trespass and what was decided by the Area Court in favour of the respondent was not even pleaded. Paragraph 28 on the other hand only pleaded the fact that there had been an appeal by the 3rd appellant to the Upper Area Court Offa against the judgment of the trial Ibolo Area Court and no more, while paragraphs 29 & 30 have nothing to do with the issue of the defence of res-judicatam. However paragraph 31 has clearly raised the issue of abuse of court process on which the learned trial Judge dismissed the appellants’ claims.

It is trite law that any party relying on estoppel as a defence in a trial in the High Court must specifically plead it by pleading relevant facts clearly supporting that defence. See Odadhe v. Okujeni (1973) 11 SC343 at 353 where Ibekwe J.S.C. (as he then was) observed:-

“It is relevant to observe that the plaintiff did not plead estoppel. It was therefore not open to him to raise it, either in the court below or before us. Moreover this point was never taken before the learned trial Judge. This court has said over and over again that where a plaintiff did not setup estoppel in the court below as part of his case, it would, in our opinion, be wrong for this court to allow such an issue to be raised as one of the issues in the case for the first time in this court.” This statement of the law applied equally to a defendant. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 672.

It is also settled that for a party to sustain a plea of res judicatam, the party pleading it must satisfy amongst others, not only that the parties or their privies as the case may be are the same in the present case as in the previous one, but also that the issues and the subject matter are the same in the previous suit as in the present suit. See Ojiako v. Ewuru (1995) 9 NWLR (Pt. 420) 460 at 468 – 469. These essential ingredients of the defence of estoppel per rem judicatam were neither pleaded nor established by evidence in the present case to justify it being applied by the learned trial Judge in dismissing the claims of the appellants. In the present case, the appellants have filed their claims in a representative capacity after obtaining the leave of the lower court, while in Exhibit D1 the proceeding was between the respondent and the 3rd appellant in their individual capacities. Also while in Exhibit D1 the claim was one for trespass, in the present case the issues office to the land in dispute and injunction are clearly involved. Further more in the absence of clear boundaries of the land involved in Exhibit D1, it cannot be said that the land in dispute in Exhibit D1 is the same as the land in the present case. The fact that the land in Exhibit D1 and the present case are described as being located at Magbon is not enough to satisfy the requirement that the subject matter in the two suits are the same. This is because the fact that the parcel of land in previous litigation bears the same name with the parcel of land in later litigation does not necessarily mean that they are the same. See Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165 and Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 531.

As for the conduct of the learned trial Judge in reading Exhibit D1 on her own and relying on it to make her findings in dismissing the appellants’ claims, it is quite clear that the ingredients necessary to support the defence of estoppel per rem judicatam were neither pleaded nor established by evidence. It was therefore wrong for the learned trial Judge to have based her findings on Exhibit D1 that the land in dispute in the proceedings in the Ibolo Area Court and the land in the present case are the same having regard to the boundaries. In other words it is indeed wrong in law for a trial Judge to place himself in the position of a witness and arrive at a conclusion based on his personal observation or knowledge of which there is no evidence on record to support it because the court cannot resolve conflicts in cases presented by parties by substituting the result of its own observation in the absence of evidence. See Ejidike v. Obiora (1951) 13 WACA 270, Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454; and Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) 460 at 476. In the instant case, contrary to the findings of the trial court, there is no evidence on record that the boundaries of the land in dispute in Exhibit D1 and the land in dispute in the present case are the same.

Another factor which rendered the respondent’s plea of estoppel per rem judicatam inapplicable in this case is the fact that the respondent himself had pleaded in paragraph 28 of the amended statement of defence that the judgment of the Ibolo Area Court he was relying upon in support of this defence was on appeal to the Upper Area Court but the result of the appeal if any had not been disclosed. The law is that a judgment which is already on appeal is no longer final as it is liable to be set aside or nullified on appeal thereby rendering it inoperative as a basis for the defence of estoppel. See Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 532. From the foregoing therefore, it is not difficult to see that the defence of estoppel in any of its forms was not available to the respondent at the court below to justify applying it in his favour.

The second issue is whether the learned trial Judge was right in dismissing the appellants’ claim on the ground that their action was an abuse of the process of the court. It was argued for the appellants that the learned trial Judge was in error in not going into the evidence adduced by the parties to pronounce on the merits of the case. That it is settled that where a preliminary point that can dispose of a matter was left till the end of a full trial, the trial court has a duty even if it finds in favour of the preliminary matter to still decide the merit of the matter in the alternative, just in case an appellate court rules that its decision on the preliminary point is wrong. That in this case the matter having gone on full trial, not withstanding her opinion on the issue of abuse of court process, the learned trial Judge ought to have pronounced on the merit of the case on the authority of Nwagbogu v. Abadom (1994) 7 NWLR (Pt. 356) 351 at 369. Learned counsel for the appellants therefore observed that since the case cannot now be decided otherwise than by resolving the conflicting evidence of witnesses for the parties, this court should order a retrial of the action on the authority of a number of cases including Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157 at 174. According to the learned counsel, the failure of the lower court to pronounce on the merit of the case amounted to failure of justice against the appellants on the authority of Union Bank of Nig. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 at 150.

On the issue of the abuse of the process of court, it was contended for the appellants that the present action was not an abuse of court process. That even if it was, at most their action could only have been struck out and not dismissed.

The case of Pavex Int. Co. Ltd. v. IBWA (1994) 5 NWLR (Pt. 347) 685 at 699 was cited in support of this submission. That having regards to the nature of the claims in the present suit, it cannot be said that the issues are the same as those in Exhibit D1. Also the fact that the action in Exhibit D1 was contested between the parties in their individual capacities while the present suit was instituted in a representative capacity by the appellants, the parties, on the authority of Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25, cannot be said to be the same. Therefore relying on the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 190, learned counsel urged this court to hold that the appellants’ action in the present case was not an abuse of the process of court.

It was however contended for the respondent that even if the learned trial Judge was in error in dismissing the case before on the ground of abuse of court process, it was not enough to reverse the judgment as the error did not occasion any miscarriage of justice. That since both parties has agreed that there were sufficient facts before the learned trial Judge to have decided the case on the merits, this court should proceed to consider these facts and hold that the case was fit for dismissal. Learned counsel to the respondent relying on the respondent’s Notice filed to urge this court to uphold the judgment of the lower court on grounds other than those relied by the trial court, went into the details of the evidence led by the parties at the trial court and urged this court to consider the evidence on record and uphold the dismissal of the appellants’ case. A number of cases was cited and relied upon in support of this submission notable of which is the case of U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254.

In the determination of issues No.2 in this appeal, the first question to be answered is whether the action filed by the appellants against the respondent at the lower court was an abuse “of the process of the court as found by the learned trial Judge. An abuse of the process of the court may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent, and to interfere with the administration of justice. A clear example is where two similar processes are used against the same party in respect of the exercise of the same right and subject matter. See Okafor v. Attorney-General. Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 – 189 where Karibi-Whyte J.S.C. said-

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety of conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.

It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial processes in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okorodudu (1977) 3 SC 21; Oyebola v. Esso West African Inc. (1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se.

The abuse consists of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. lIarriman (1989) 5 NWLR (Pt. 119) 6.” (Italics mine).

In the instant case, the only ground upon which the learned trial Judge found the appellants’ action before her as being an abuse of court process was the fact that the contents of Exhibits D1 & D2 show that there was an earlier case between the respondent as plaintiff and the 3rd appellant as defendant before the Ibolo Area Court which decided the case in favour of the respondent that the 3rd appellant had encroached on his land. That the 3rcl appellant was not happy with that decision of the Ibolo Area Court and had appealed against it to the Ilorin and not Offa Upper Area Court as pleaded. For this reason the learned trial Judge felt that tile appeal in the Upper Area Court should have been pursued rather than instituting a fresh action before her court which exercises appellate jurisdiction over the Upper Area Court. The filing of the present action by the appellants in the court below therefore was regarded as an abuse of the court process by the learned trial Judge who proceeded to dismiss the action. With the greatest respect to the learned trial Judge, she could have been right if the present case before her was between the same parties involving the same subject matter and on the same issues as the case decided by the Ibolo Area Court in Exhibit D1 which is on appeal to the Upper Area Court Offa and not Ilorin as found by the trial Judge. However, I have a1rencly found earlier in this Judgment that the parties in the present case arc not the same as the parties in Exhibit D1. It was not also shown that the subject matter in the two cases were the same or that the issues arising from the two cases were the same. There was therefore no basis at all for the learned trial Judge to regard the appellants’ action before her as an abuse of court process which will only arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues. In this respect by filing the present action at the lower court the appellants in my view, cannot be accused of improperly using the issue of judicial process to irritate and annoy the respondent, their opponent or affect the efficient and effective administration of justice. Therefore the conduct of the appellants in exercising their constitutional right of access to the court to have their dispute resolved, was not an abuse of the court process as found by the learned trial Judge.

The next question for determination in this issue is whether the learned trial Judge on finding the appellants’ action constituting an abuse of court process ought to have simply struck out the same rather than dismissing the action. The appellants have submitted in paragraph 5.07 of their brief of argument that even if the lower court had found their action an abuse of court process, the most severe sanction they would have suffered was an order striking it out and not an order of dismissal. The cases of Aduba v. Registered Trustees Living Christ Mission (1994) 4 NWLR (Pt.339) 476 at 486 and Po vex Int. Co. Ltd. v. I.B.W.A. (1994) 5 NWLR (Pt. 347) 685 at 699 were cited in support of this submission. However, having carefully examined the two cases cited and relied upon by the learned counsel to the appellant on this point. I regret to say with the greatest concern that the two cases did not decide the point for which they were cited and relied upon. Both cases were decided by this court. In the first case, there was no finding that there was an abuse of court process at page 486 of the report not to talk of any order striking out such action found to have been an abuse o[ court process. Similarly in the second case, while it is correct that this court found that the filing of motions at the lower court after this court had been seized of the matter where similar applications were pending was an abuse of court process, there was no specific finding that where an action is found to be an abuse of court process, it should be struck out rather than being dismissed. This conduct of the learned counsel for the appellants in quoting the judgment of this court out or context in support of his clients’ case could be very serious if it was done deliberately to mislead this court. This is because the role of counsel in guiding the courts to reach the correct decision is a very vital role in our system of administering justice in this country. If this-vital role of counsel is not properly played in the course of proceedings in our courts, the obvious result is of course failure of justice with no doubt unpleasant consequences. As to the proper order to ‘be-made where a court of law has found a matter before it to be an abuse of its process, it has to be stressed that an abuse of court process simply means that the process of the court has not been used bonafide and properly. In other words an abuse of court process is not in the specie of sins commonly called an irregularity. It is a more fundamental vice which is deserving of the punishment of dismissal. Every superior court of record in Nigeria is conferred with all the inherent powers and sanctions of a court of law by virtue of Section 6(6) (a) of the 1979 Constitution of the Federal Republic of Nigeria. These inherent powers are a necessary adjunct of the powers conferred by the rules of court, and they arc invoked by the courts to ensure the due application and proper lubrication of the machinery of justice, and to ensure its protection from abuse. Therefore, because it is an abuse of court process for a suitor or litigant to litigate again over an identical question which has already been decided against him, even if the matter is not strictly res-judicatam, once a court is satisfied that the proceedings be[ore it is an abuse of its process, that court has the right, and in fact a duty lies upon it to invoke its coercive powers under S.6(6)(a) of the 1979 Constitution to punish the party in abuse of its process. This power is exercisable and the duty dischargeable by all superior courts of record in this country of which the Kwara State High Court of Justice is cerk1inly one, by dismissing the abusive action. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142. In the instant case therefore, the order of dismissal made by the learned trial Judge rather than an order striking out the action was quite in order.

Now with the two issues arising for determination in this appeal having been resolved in favour of the appellants, what I have to determine now is the appropriate order to make in the circumstances. While the appellants are asking for an order of retrial, the respondent is relying on his Respondent’s Notice in urging this court to affirm the order of dismissal of the appellants’ action on grounds other than those relied upon by the learned trial Judge. In several decisions of the Supreme Court in Eliochin (Nig) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times of Nig. (1990) 1 NWLR (Pt. 124) 1 at 21 – 22; and Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 at 652, to mention but a few, the principle has invariably been laid down that a respondent seeking to set aside or vary a finding which is crucial or fundamental to a case, can only do so thorough substantive cross-appeal and not through a Respondent’s Notice to a affirm or vary the judgment on other grounds. In other words where a respondent wants a complete reversal of the decision of the lower court, he ought to file a cross-appeal instead of a respondent’s Notice. In the present case, although the learned trial Judge heard witnesses from both sides and took the final addresses of the learned counsel to the plaintiffs now appellants and the defendant now respondent, the learned trial Judge without going into the merits of the case simply dismissed the appellant’s claims on the grounds that their action was an abuse of court process. What the respondent is asking this court to do through his Respondent’s Notice, is to appraise the evidence on record and enter judgment for the respondent by dismissing all the claims of the appellants against him. This shows quite clearly that even the respondent did not agree with the decision of the lower court for dismissing the appellants’ claims for being an abuse of court process without going into the merits of the case. I am afraid the respondent cannot challenge this decision by the Respondent’s Notice. The only way for the respondent to have the decision of the lower court reversed is by cross-appealing against it in the absence of which his relief in this respect cannot now be heard and granted by this court. In any case the exercise of the appraisal of evidence which the respondent is asking this court to embark upon for the failure of the learned trial Judge to do so, and pronounce on the merits of the case, cannot be done in the instant case where the bulk of the evidence led by the parties is oral evidence in which credibility of the witnesses would have to playa vital role in the determination of which party’s evidence is heavier on the imaginary scale of justice. It is trite that this court being an appellate court which did not have the benefit of hearing and seeing the witnesses gives evidence, shall not be in a position to determine their credibility. This responsibility is primarily that of the trial court. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426.

On whether or not a retrial should be ordered in this case, it is the law that where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appellate court to determine whether there has been no miscarriage of justice; a retrial is ordered. See Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24. Also where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such issues depends on the credibility of the witnesses as precisely is the case in the instant appeal, a retrial is ordered. See Karibo v. Grend (supra); and Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157. A retrial is also ordered where the other party is not being wronged to such an extent that would lead to a miscarriage of justice when the plaintiff as in the present case is afforded an other opportunity to relitigate the same matter all over again. See Bakare v, Apena (1986) 4 NWLR (Pt. 33) 1; Duru v. Nwosu (supra); and Okedare v. Adebara

(1994) 6 NWLR (Pt. 349) 157.

There is no doubt that in the present case the learned trial Judge applied the principles of estoppel per rem judicatam wrongly and came to the conclusion also wrongly that the appellants’ case before her was an abuse of court process before dismissing the same without pronouncing on the merits of the case although the case went through a full trial. Indeed the irregularity did not render the trial a nullity but at the same time I cannot say that there was no miscarriage of justice. Further more, there was a failure on the part of the learned trial Judge to make findings on all material issues raised before her which cannot now be determined by this court because the determination of the issues depends on the credibility of the witnesses. Having regard to the circumstances of this case therefore, I do not think an order or retrial would occasion any miscarriage of justice to the respondent who in any case was also not happy by the failure of the learned trial Judge to pronounce on the merit of the case.

In the result this appeal SUCCEEDS AND IT IS HEREBY ALLOWED. The judgment of the lower court of 21/12/93 IS HEREBY SET ASIDE. The case is remitted to the Honourable Chief Judge of Kwara State for re-assignment to another Judge to hear afresh, the appellants’ claims contained in their writ of summons.

The appellants are entitled to costs which I assess at N1.500.00 (one thousand, five hundred naira only).

Other Citations: (1997)LCN/0299(CA)