Harrison Okonkwo & Anor Vs Godwin Udoh & Anor (1997)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

This appeal was heard on 26th May, 1997. During the oral arguments in elaboration of the briefs already filed, the attention of the two learned counsel, Mr. Ani and Mr. Agbata, was drawn to the piece of evidence in which the two defendants, who are respondents in this appeal, and DW2, testified to the fact that the plaintiffs, who are appellants here, once pleaded with the defendants either to be given an access way in the respondent’s land or be allowed to purchase the land in dispute from them (respondents). Both approaches were turned down by the respondents. This vital evidence had not been challenged by the appellants and the learned trial judge did not consider these testimonies or made any finding in respect of them in his judgment.

Both counsel agreed that there was, by implication, an admission and that since the learned trial judge did not make any finding in respect of that evidence, the lower court was in error, after observing the lapses in the trial court’s judgment, to have declined to order for a retrial. By consent, the two respective counsel for both parties urged us to allow the appeal and order for a retrial of the plaintiff’s claim. For these reasons I allowed the appeal and ordered for the retrial of the plaintiffs’ claim before another judge:- I indicated then that I would give my reasons today. I now do so.

My task has been made easy, this being a consent judgment. Both counsel in their respective briefs made submissions on the issue of retrial of this suit. Learned counsel for the appellant formulated issue 4 on this subject. He questioned whether dismissal of the suit in the circumstances of this case, was the proper order to make in the interest of justice. Learned counsel submitted that since the plaintiffs/appellants have proved their case on balance of probabilities and there is no irregularity of a substantial nature apparent in the record, the judgment of the High, Court should be restored.

Mr. Enechi Onyia, further argued in the alternative, that if there is reasonable doubt in the mind of this court as to the proof of the averments in the statement of claim, this court may order for a retrial. He submitted further that the Statement of Defence is defective as regards the answer to paragraphs 3-13 of the Statement of Claim.

Mr. Okafor, learned counsel for the respondents, submitted that the proper order to make in this case was to dismiss the appeal for reasons fully set out by the Court of Appeal and not send the case back for retrial. However, in trying to give reason for his submission, learned counsel disclosed what, in my view, was nothing short of a mistrial bordering on miscarriage of justice committed by the trial High Court. One of such submissions is where learned counsel, in the respondents’ brief, said as follows:

“The Court of Appeal, did not go beyond its function to oversee, superintend, or review the way the issues arising from the case in the trial court were tried. It did not itself make findings of fact, but rightly came to the conclusion that the trial court had not properly evaluated the evidence before it, because it ignored crucial pieces of evidence apparent on the record, and therefore came to a wrong decision.

The learned trial judge erred in giving judgment for the plaintiffs, and the Court of Appeal was therefore right in setting it aside, because apart from the vital pieces of evidence which the learned trial judge ignored, which the justices of the Court of Appeal pointed out, there were also other pieces of evidence – apparent on the record which the learned trial judge equally failed to make a finding upon, such as, the statement in paragraph 3;of the statement of claim that “the land in dispute……is a portion of a larger area of land known as and called “Ngwulu be Okonkwo” ……and forms part of the ancestral compound of plaintiffs”.

The learned Justice of the Court of Appeal, Ogundare, JCA, strongly criticized the decision of the learned trial judge and fell short of saying that he committed ,miscarriage of justice in the trial of the case in hand. ‘The observation of the learned justice reads thus:

“In this case the trial court was positively wrong in the two instances cite above, the first being, misfeasance, and the second being nonfeasance, each of which has affected the judgment of the lower court in a most crucial manner.”

The learned justice, knew that this court had once held in Awote v. Owodunni (No.2) (1987)2 NWLR (Pt.57) 366 that where a court of trial fails to advert its mind to and treat all issues in controversy fully, and there is insufficient material before the appeal court for the resolution of the matter, the proper order to make is one of retrial. If all appeal court says that a trial judge had committed both misfeasance and nonfeasance, during trial which he presided over, it would mean that the decision of that court amounted to miscarriage of justice.

What will constitute a miscarriage, of justice may vary, not only, in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law – See Wilson v. Wilson (1969) ALR.9

The two learned counsel in this appeal, agree that the trial High Court did not consider properly the evidence which disclosed an admission by the defendants that the plaintiff’s father lived on the land in dispute. They both agree that the proper thing to do is to send the case back for retrial. The Court of Appeal saw these irregularities but still declined to order for retrial of the suit. This court in Ayoola v. Adebayo (1969) 1 All NLR 159 at 162 held:

“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 the 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. We do not propose, as the matter had not been fully argued before us, to lay down any hard and fast rule as to the circumstances that would justify the exercise of the power to order a retrial but we must and do point out that an order for 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.”