Oged Ovunwo & Anor V. Iheanyichukwu Woko & Ors (2011)
LAWGLOBAL HUB Lead Judgment Report
M. CHUKWUMA-ENEH, J.S.C.
This appeal is against the decision of the Court of Appeal, Port Harcourt Division (i.e lower court herein) given on 4th July 2005 – in which the lower court has dismissed the plaintiffs/appellants’ ground one of the ground of appeal seeking a declaration that the appellants are entitled to a Customary Right of Occupancy of the land in dispute otherwise known as and called “Okporo Ovunwo”; in other words as condensed under issue one for determination in this appeal. Thus, more or less, it has allowed the appeal albeit in part. On the question of the appellate High Court having failed to consider and pronounce on issue 3 (three) for determination otherwise dealing with the omnibus ground of appeal properly raised before it as issue 2(two) the lower court rightly in my view has ordered as follows: “…a fresh trial of the appeal before another judge of the court below” i.e. the appellate High Court.
Further facts of this matter for purposes of resolving the questions raised in the appeal have encompassed the plaintiffs/appellants’ claim at the Customary Court Rumuogba Obio in Rivers State and it states as follows:
“1. Declaration of title to a piece and parcel of land known as and called ‘Okporo Ovunwo’ situate at the right hand of the road leading from Rumuokoro to Rumuagbaolu village which land is in peaceful possession of the plaintiffs and which the defendants have pinned cement pillars thereon for the purpose of sale which the defendants without leave or license of the plaintiffs entered and cut down for sawing three sticks therein.
- Perpetual injunction restraining the defendants, their agents, heirs and privies from further acts of trespass into the said ‘Okporo Ovunvwo’ land until the case is finally determined by the court.
In the beginning the trial customary court in its judgment of 11th January, 1993 has ordered the partitioning of the land in dispute between the parties herein. The plaintiffs/appellants being aggrieved by the trial court’s decision have appealed to the appellate High Court. Before it, have been raised three issues for determination including the third issue now in the eye of the storm in this appeal to wit:
Whether the weight of evidence in the case was properly weighed and balanced in accordance with the requirements of the law.”
For no obvious reason, the appellate High Court has failed/neglected to consider and pronounce on the said Issue 3(three) as stated above. It is in regard to this failure, that the appellants in their appeal to the lower court have raised two issues before it (the lower court) against the decision of the appellate High Court as follows:-
“Issue No.1
Whether the lower court was justified in holding that the appellants relied on tradition evidence or history in proof of their claim as opposed to numerous and positive acts of ownership.
Issue No.2
Whether the refusal by the lower court to consider and determine the appellants’ omnibus ground of appeal was right and did the same not constitute a denial of the appellants’ right to fair hearing.”
On its part the lower court in its decision has resolved the above mentioned issue 1 (one against the appellants in favour of the respondents but with regard to issue 2(two) it respectfully has fumbled by concluding as follows:
“Honestly, I cannot surmise why the learned judge of the court below, with the crudity depicted in his judgment, declined to pronounce generally on the complaint in the ombibus ground of appeal. It is a complaint that the judgment is against the weight of evidence. He merely needed to balance the evidence adduced on both sides on an imaginary scale and see where the scale tilts. He needs to bear in mind the decisions of the Supreme Court in Mogaji v. Odofin (1978) 4 S.C. 91 at p.93; Bellow v. Eweka (1981) S.C. 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Adisa v. Ladokun (1973) 1 All NLR (Pt.2) 18. Refer to section 132 of the Evidence Act. Cap. 112.
Parties have agreed that there is a clear breach of fair hearing since the court below failed to determine the issue touching on the omnibus ground of appeal. And since there is a clear breach of fair hearing, the mandatory order that is warranted is one ordering a fresh trial of the appeal by another judge of the court below. And, I order accordingly.”
I have as per the foregoing account in a nutshell set out the points at which the parties are at issue and which may require their consideration in this appeal.
The plaintiffs/appellants being aggrieved by the lower court’s decision have filed a notice of appeal on 23/9/2005 to this court containing 5(five) grounds of appeal from which the appellants in their brief of argument also filed in this matter have distilled 2(two) substantive issues for determination as follows:
“Issue 1:
Whether the Court of Appeal was right in its decision that the appellants were not entitled to a declaration of title to the land in dispute (Grounds 1, 2, 3, and 5).
Issue 2:
Whether the Court of Appeal was right when it first determined and pronounced upon issue No. 1 before it prior to ordering a rehearing of the appeal before the appellate High Court (Ground 4).”
The respondents in their filed brief of argument in this matter have adopted the above issues as formulated by the appellants.
On an overview of the particular facts of this matter and even then against the obvious questions that have arisen for resolution thereof as per the parties’ briefs of argument and oral submissions before us in the appeal vis-a-vis issue 2 (two) above, I think it is proper that I should confine my discussion of this matter firstly, exclusively to determining the questions arising from issue 2 (two) only for a number of reasons including firstly, in that by resolving the said issue will dispose of the appeal. Secondly, the lower court has allowed the appeal in part i.e. by resolving issue 1 (one) above against the appellants in favour of the respondents vis-a-vis the order in the same proceedings remitting the appeal to the appellate High Court for a rehearing even as the two orders contradict each other. And so the gist of this appeal depends upon answering the poser as per the instant issue 2 in the negative, otherwise issue 2 becomes completely otiose.
Thirdly, I take the view that where as here an appellate court as this court has ordered a rehearing of a matter as the instant one for resolution by a lower court as an appellate High Court as here that is, to hear and resolve the matter de novo it should not be seen to interfere or to deal with any substantive questions or points that have to be resolved at the rehearing of the matter. In this way, such an appellate court ought to maintain a level playing ground for the parties pending and during the rehearing of the appeal as here. And one of the ways of doing so is not to have pronounced on any questions to be resolved at the rehearing. This underscores the charge leveled against the lower court in this matter by the appellants that by resolving issue 1 (one) herein against the appellants in favour of the respondents prior to ordering a rehearing of the appeal before the appellate High Court has served to undermine their case at the rehearing; and also that it is highly prejudicial to their case. By having ordered the matter to be heard de novo for breaching the principle of fair hearing all the issues in the matter have been put into melting pot to be heard anew. However, I must observe that our case law is replete with comparative instances expounding this underlying principle that is of court guarding against pre-empting as well as pre-determining of such issues as here at interlocutory stages as exemplified in the case of Egbe v. Onogun (1972) 1 ANLR 95, Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419, Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325, Ojukwu v. Govt. of Lagos State (1986) 3 NWLR (Pt.26) 39 wherein this court has severally pronounced on the area of injunctions to the effect that it is not open for a court as a duty at the stage of considering an interim application for injunction to determine any questions or points that have arisen in the pleadings or that would arise for resolution in the substantive suit. See Akapo v. Hakeen Habeeb (1922) 6 NWLR (Pt.247) 266 and A.C.B. Ltd. v. Awogboro (1996) 3 NWLR (Pt.437) at 383.
Fourthly, I have further opted to deal with issue 2 (two) first as I am not satisfied of the propriety of invoking in the circumstances the powers of this court under section 22 of the Supreme Court Act to hear the appeal as urged by the parties. In this regard it appears to me that among the question to be resolved at the rehearing of the appeal have involved the credibility of witnesses and ascription of probative values to their evidence and the trial court is better qualified to deal with such questions. My stance in dealing with issue 2 in this matter is also strengthened by the decision in Oriawe v. Okene (2002) 14 NWLR (Pt.786) 156 at 182 – 183 where as in this case the relevant question to be asked is whether the non-resolution of an issue as herein is sufficient to vitiate the judgment of the court below. See also Igbodin & Ors. Obianke & Ors. (1976) 10 NSCC 467 at 474. Besides, this court has said it times without number that it stands to benefit from the lower court’s opinions in appeal from it and no less so on the instant issues that have arisen in this appeal. See Ojosipe v. Ikabale & Ors. (1972) 1 ANLR (Pt.1) 128. It is against the foregoing background that I proceed to deal with the parties’ cases as per their respective briefs of argument on issue 2(two) only, as discussing issue 1 (one) is predicated on answering the power on issue 2 (two) in the negative.
The appellant’s case on issue 2 is that the order remitting this matter to the appellate High Court to be heard de novo has been reached notwithstanding that the lower court has before then resolved issue 1(one) against the appellants in faovur of the respondents. And as surmised by the appellants, the lower court should have gone ahead in that wise in the interest of justice to consider the appeal by invoking its powers pursuant to Section 16 of the Court of Appeal Act. That is to say on the self same issues that have arisen to be revisited at the rehearing as has been ordered by the lower court. In this respect they have decried the pronouncement of issue 1 (one) and rightly so if I may interject here; and have referred to Brawal Shipping (Nig.) Ltd. v. Omuadike Co. Ltd. & Anors. (2000) 6 SCNJ 508 at 512, Cookey v. Fombo (2005) 5 SC (Pt.11) 102 at 111 per Edozie JSC to contend again rightly that it tantamounts to allowing the appeal in part. It is however posited that owing to the obvious delay that is bound to arise in rehearing the appeal, this court has been urged to invoke its powers under 22 of the Supreme Court Act to hear the appeal on the printed record before it even so on the authority of Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 3 SC. 11 and C.G.G. (Nigeria) Ltd. v. Ogu (2005) 2 SCNJ 227 at 238. It is also pointed out that this is even more so as the instant complaint is against an omnibus ground of appeal and not a specific or particular piece of evidence adduced at the trial. See: Osolu v. Osolu (2005) 11 NWLR (Pt.832) 608 at 645 – 646. They urge this court to resolve issue 1(one) before it in the appellants’ favour by allowing the appeal and thus to set aside the decisions of the Customary Court and the appellate High Court dismissing the appellants’ claims; furthermore, to exercise its powers pursuant to Section 22 of the Supreme Court to grant the reliefs sought in the appellants’ claim at the trial court.
The respondents have in their brief of argument submitted that the lower court as settled law rightly has considered and pronounced on the question as properly placed before it and as postulated in the case of Afro-Continental Nig. v. Cooperative Association of Professionals Inc. (2003) 1 SCNJ. 530 at 537. Nonetheless, they have before us at the oral hearing of the appeal conceded that the issue 3 (three) before the appellate High Court has not been considered and determined amounting as it were, to a denial of fair hearing. They have, all the same, urged this court to invoke its powers pursuant to Section 22 of the Supreme Court Act to finally determine the appeal here as all the enabling materials so to do are as per the printed record before this court. The court is also urged to affirm the decision of the lower court by dismissing the appellants’ case on issue 1 (one). And curiously enough as if on a reverse gear they have urged that the trial court has properly evaluated the evidence and that is findings have been borne out of the record and that the judgment reached by the trial court has been based on preponderance of evidence and so to dismiss the appeal as lacking in merit.
I have tried as per the above foregoing cases as urged by the parties based on their respective briefs of argument to narrow the same to resolving issue 2 for determination only. I have given my reasons for so doing above. I must however, respectfully observe at this stage vis-a-vis the lower court’s manner of couching its judgment in this appeal that every judge reserves the right as to his own style of writing judgments whether sitting at the trial or appellant level of the courts. All the same, what must be recognized as settled law is the duty to pronounce judgment on all issues placed before the judge for resolution. Without over simplifying this duty every judgment has to state the fact of the case, state the points at issue requiring the court to pronounce on them, then the court’s decision with the reasons for the same.
Without mincing words, respectfully, the lower court’s record of the instant order as per its judgment made pursuant to allowing issue 1(one) of this appeal and ordering a rehearing of the appeal on issue two though stated in strict legal terms have been clearly exhaustive and precise as every judgment ought to be; in this case, as regards the resolution of the points at issue in the judgment of the lower court and this is as instanced by allowing the appeal in part and in the same breath in the same proceedings ordering a rehearing of the appeal. The two orders with respect, in regard to this appeal are mutually exclusive, that is to say, contradictory in terms as the said order or rehearing without more has appeared to encompass the order of the lower court allowing the appeal on issue one. That is to say that at the stage of ordering a rehearing of the appeal the order on issue 1(one) is still extant and subsisting not having been vacated. It must be vacated for the rehearing to proceed on an even keel. I shall come to it later on.
I therefore, stand on the above premises to restate the principle that it is a court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the appellants to fair hearing. See: Dawodu v. National Population Commission (2000) 6 WRN 116 at 118. This point of a court’s duty to pronounce on every issue raised before it is fundamental to resolving the instant questions raised in this appeal and is sustainable as per this court’s decision in Brawal Shipping (Nig.) Ltd. v. Omuadike Co. Ltd. & Anors. (supra), wherein Uwaifo JSC held as follows: “It is no longer in doubt that this court demands of, and admonishes, the lower courts to pronounce; as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. See: Oyedirau v. Anise (1970) 1 ANLR 313 at 317, Olobue v. Nnabia (1972) 6 SC. 27, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 at 539, Okonji v. Njakanma (1991) 7 NWLR (Pt.202) 131 at 150 – 152 and Katto v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at 149. A deliberate failure to do so has been characterized as amounting to a failure to perform its statutory duty.
However, what the appellants seem to be complaining about here is that the lower court has improperly pronounced on issue 1 (one) for determination prior to ordering a rehearing of the appeal before the appellate High Court. In other words, that having made up its mind on the matter it should have proceeded straight on to order a rehearing, without more; and should not have allowed the appeal in part prior to making an order of rehearing of the matter. The respondents have conceded the point. I am satisfied that the lower court, with respect, has partly allowed the appeal when it has resolved issue 1(one) before it against the appellants in favour of the respondents. And that by so having pronounced on issue 1(one) it has unarguably interfered with, albeit dealt with a vital question which otherwise is properly for resolution at the rehearing of the appeal and this has erred in pre-empting that issue tantamount to not having provided a level playing ground for the parties at the hearing before the appellate High Court.
Having carefully examined the complaints of the appellants in this matter it is not in doubt, the issues 3 (three) raised for determination before the appellate High Court amounts to an attack of the failure of the trial court to evaluate all the evidence adduced by the parties and their witnesses at the trial and weighing the same in the imaginary scale to see which outweighs the other. By failing to consider the same at all naturally leads to a miscarriage of justice apart from constituting a breach of the appellants’ right to fair hearing. Thus, it begs the question in the circumstances whether the failure to so resolve the said issue 3 is sufficient to vitiate the instant judgment of the appellate High Court and by the same token the decision of the lower court on the issue. I have no hesitation in my mind in answering the poser in the affirmative. More importantly, the point must be made that a breach of fair hearing once substantive in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof. Once it is showed as it has been showed here that the decision of the appellate High Court has been vitiated for breaching the appellants’ right to fair hearing it follows naturally without more that the lower court’s resolution of issue 1(one) cannot stand and so the whole decision collapses with it as it has no leg on which to stand. This is so as fair hearing is a fundamental constitutional right as entrenched in the 1999 Constitution as amended. And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety; it renders the entire proceedings null and void. See: Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.496) 675 at 708 per Iguh JSC.
In the instant case it does not matter that it relates only to the failure to resolve issue 3 (three) above out of the 3 (three) issues raised before the appellate High Court that has breached the appellants right to fair hearing. There can be therefore no valid ground for surmising that by failing to consider the said issue 3 (three) the appellate High Court has not really heard the case of the appellants on the principle enunciated in the case of Sheldon v. Broomfield Justice (1964) 2 Q. B. 57 at 578 that is to say, to the effect of the court hearing both sides to a matter before reaching a decision. This is so in this matter where the third issue formulated for determination before the appellate High Court has not been considered and pronounced upon at all. And so it cannot stand the test of objectivity as to contend that equal treatment and opportunity and consideration of the respective cases on both sides to the matter have been considered and pronounced upon as postulated in the case of Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (pt.53) 678. Nor can it rightly also be contended in this matter that the principle that justice must not only be done but must also be seen to be done be said to have manifested itself in the proceedings before the instant appellate High Court. See: R. v. Sussex Justices Ex parte Mccarthy (1924) 1 KB 256 at 259. In this country this principle has been expatiated and expounded upon in the case of Deduwa v. Okorodudu (1976) 4 SC. 329. It is therefore against the backdrop of the foregoing findings vis-a-vis particularly on the issue of denial of fair hearing as a fundamental right that that error of the appellate High Court in failing to consider and pronounce on the said issue 3 has to be resolved and so also as constituting the circumstance warranting the order of a rehearing as ordered by the lower court.
I must particularly advert to the dicta in the case of Oriawe v. Okene (2002) 14 NWLR (Pt.786) 156 at 182 – 183 with which I am in unison i.e. where Ogundare JSC, has opined that the proper steps for an appellate court as this court to take where the lower court has failed to resolve a vital issue raised before it include and I quote that “if the issue was vital to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.”
I therefore, uphold the order of rehearing of the appeal as ordered by the lower court on the grounds that the questions raised by the said issue 3 are vital for resolving this appeal and furthermore for the reasons that have been copiously dealt with herein. There can be no doubt that the main thrust of this appeal has to stand or fall on resolving the said issue 3 (three).
It is settled law that a rehearing of a matter should inter alia be ordered where the evidence has not been properly evaluated as the advantage of having seen and heard the witnesses and watched their demeanors have not been taken as on this occasion by the instant trial court in this matter. See: Okpri v. Jonah (1961) ANLR 1 & 2.
Meaning in effect in the circumstance of this matter that the non-resolution of the said issue 3 (three) eminently warrants remitting the instant appeal to the appellate High Court for a rehearing. And I so affirm the order.
I must however in the interest of providing a level playing ground for both parties and for the avoidance of any doubt hereby set aside the resolution of issue 1(one) against the appellants in favour of the respondents as pronounced by the lower court as having been made in error. And I so order as it is crucially important in order to clear the way for a rehearing of the appeal as has been ordered by the lower court (as affirmed by this court) to be complied with by the appellate High Court.
Lastly, I must emphasize the view that once the lower court has ordered a rehearing as in this matter it is precluded from dealing with, indeed wading into the matter to resolve any points/issues to be resolved at the rehearing. And I so hold.
For the avoidance of doubt I hereby set aside the lower court’s resolution of issue 1(one) having been made in error. The entire case is hereby remitted to the Customary Court of Appeal which has since replaced the appellate High Court for a rehearing. And I so order.
In the result there is no merit whatsoever in the appeal and I hereby dismiss it in part. I make no order as to costs.
SC.297/2005