Hajia Aisha Kamariam Monguno v. Bluewhales & Company & Ors (2023)

IBRAHIM MOHAMMED MUSA SAULAWA, JSC (Delivering the leading judgment)

The instant appeal is a natural fall-out of the judgment of the Court of Appeal, Abuja Judicial Division, delivered on May 13th, 2010 in appeal No. CA/A/227/2009.

By the judgment in question, the court below coram: Mary Peter-Odili, JCA (as the learned Lord then was), J. M. Bada, JCA. and A. Aboki, JCA (as then was) dismissed the appellants appeal against the judgment of the trial High Court, delivered on June, 24, 2009 in suit No. CV/1293/07.

In the case of Yahaya v. The State (2002) 11 WRN 1; (2002) 3 NWLR (Pt. 751) 289, this court aptly pointed out the pertinent distinction between two dissimilar terminologies re-trial and fresh trial, inter alia:

However, a retrial is ordered only when there has in fact been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. In the present case, there has been no trial because the purported trial was vitiated ab initio.

Therefore, the order to be made is for a proper trial to take place and not a retrial. This distinction is very important in deciding the consequential order to be made.

Per Uwais, CJN at 304-305, Umaru v. The State (1979) 11 S.C 1, Okafor v. The State (1976) 5 S.C 13, Abodudun v. The Queen (1959) SCNLR 167 at 166, Okosun v.The State (20) 3 – 4 S.C 36, Omosaye v. The State (2014) 32 WRN 45; (2014) LPELR-22059(SC) at 31 – 33, paragraphs E-A.

Against the backdrop of the foregoing far-reaching authorities, I am of the considered view that consequent upon setting aside of the judgment below, the instant appeal ought to be remitted to the court below for rehearing.

Hence, the appeal: CA/A/227/2009; Hajia Aisha Kamariam Monguno and 1. Bluewhales and Company 2. Good Luck Adekweh 3. Alhaji Shehu Kollere, is hereby remitted to the Court of Appeal, Abuja Judicial Division, to be heard by a different panel.

Parties shall bear their respective costs of litigation.

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Other Citation: (2023) 15 E-WRN / 01 (SC)

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