Ogundare Osasona V. Oba Isaac Adetoyinbo Ajayi & Ors. (2009)

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SOTONYE DENTON WEST, J.C.A.

This is an appeal against the sole issue directed by the Supreme Court for rehearing by the Court of Appeal, of whether or not the trial court adopted the right attitude in handling the case by going into detailed evidence of the matter and thus re-opening all facts and issues instead of finding out if the Oluwole commission rightly came to conclusions at which it arrived.

The appellant’s counsel, Bola Aruleba Esq., on 30th April, 2009 adopted his brief of argument dated 29th December, 2008 and filed on 30th December, 2008 and a reply brief dated 23rd February, 2009 and filed 2nd March, 2009 and urged this court to allow the appeal.

Chief Duro Ajayi adopted the 1st respondent brief of argument dated 30th day of January, 2009 and filed on 2nd day of February, 2009 and urged the court to dismiss the appeal. Ojo Esq., adopted the 2nd & 3rd respondents brief dated 11th of March, 2009 and filed on 1st April 2009 and deemed properly filed and served the 30th April, 2009. They are praying the court to dismiss the appeal with substantial cost against the appellant.

This case has a cheaquered history, it has been determined up to the apex court before the Supreme Court ordered that another panel of this court should try issue c of the appellant de novo.

The order directing this court to hear issue C of the Appellant de novo was contained in the unanimous decision of the Supreme Court in the Judgment of Ogundare Osasona substituted for EZEKIEL OLATUNDE deceased -vs- OBA ADETOYINB0 AJAYI & 3 Ors, (2004) 14 NWLR (Part 894), 527. Their Lordships in one accord were of the view that this court ought to have given its views in respect of issue c of the Appellant’s issues for determination and accordingly I am obliged to quote the words of Kalgo JSC (Rtd) in his contribution to the Judgment on page 548 to 549 thus:

“I agree that the appeal ought to be allowed and the case remitted to the court of appeal to consider what was issue (A) in this court. The issue is fundamental to the consideration and determination of this appeal and it is therefore essential for this court to have the views or decisions of the Court of Appeal on the issue before this court decides on it. This was not done by the Court of Appeal which suo motu struck out ground of appeal 3 before it, from which issue (A) was distilled. I agree that the Court of Appeal was wrong in striking out ground of appeal number 3.

In the court of Appeal, the appellant formulated 8 issues for determination but with the striking out of grounds of appeal (3), (4), (5) and (8) only 4 issues were considered by the Court of Appeal. As issue (A) was distilled from ground 3, it was not considered by the Court of Appeal in reaching its decision. In the Court of Appeal issue (c) raised from ground 3 was substantially the same as issue

(A) in this court and it reads:

“(c) Whether or not the trial court adopted the right attitude in handling the case by going into detailed evidence of the matter and thus reopening all facts and issues instead of finding out if the Oluwole Commission rightly came to conclusions at which it arrived. ”

The Court of Appeal did not consider this issue because it struck out the ground from which it was distilled. It is trite law that a court or tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the court or tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing. UNITED

BANK OF NIGERIA Ltd vs. NWAOKOLO (1995) 6 NWLR (Pt. 400) 127. But in the circumstances of this case where the Court of Appeal suo motu, without inviting the parties to say anything decided to strike out the ground from which the issue was raised, there is in my respectful view a denial of fair hearing. See KOTOYE -vs. C. B. N. (1989) 1 NWLR (Pt. 98) 419.

It is also my view that although by virtue of section 22 of the Supreme Court Act, 1960, an issue not requiring further evidence as in this case can be considered by this court, the overriding consideration here is that it is essential to have the views or opinion of the Court of Appeal first on the issue, before this court decides on it. See BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270″

Therefore, it seems to me that the apex court’s directive is that this court should proffer its view on issue c which is the same as issue a in the Supreme Court when the appeal journeyed from Court of Appeal, Benin city to the Supreme Court.