Salihu Okino Vs Yakubu Obanebira & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, JSC.

The proceeding leading to this appeal was first initiated on the 7th day of December, 1988 at the Upper Area Court of the former Kwara State of Nigeria, holden at Lokoja.

In that court, the plaintiffs for themselves and as representing members of the Onoko clan in Eganyi District of the Okene Local government Area of Kogi State claimed against the defendants as follows:-

“(1) An order of court restraining the 1st defendant, his servants, agents, privies and members of the 1st defendant’s Ezionogu Clan from holding out himself or themselves as the owner or owners of the said farmlands, that is to say, Usoko, Igege, Uhomiri, Ogane and Uwowiri, all located in Eganyi District of Okene Local Government Area.

(2) An order of court restraining the 1st defendant his servants, agents, privies and members of the Ezionogu clan from making any claim to or receiving any compensation from the 2nd defendant or from any persons whatsoever in respect of any part or portion of the aforementioned farmlands.

(3) The plaintiffs also claim against the second defendant, an order of court restraining the 2nd defendant from paying any compensation to the 1st defendant, his agents, servants, privies and or the Ezionogu clan or to any person whatsoever, in respect of the plaintiffs’ farm lands at Usoko, Igege, Uhomiri (Okuhisihu) Ogane and Uwowiri, all in Eganyi District, acquired by the 2nd defendant, for the construction of an Iron Ore Rail-line.

(4) An order that the 2nd defendant shall pay the said compensation to the plaintiffs.”

At the subsequent trial, both parties testified on their own behalf and called witnesses. The plaintiffs called a total of 12 witnesses whilst the 1st defendant, who was sued for himself and as representing members of the Ezionogu Clan of Eganyi, called 5 witnesses.

The plaintiffs’ case, briefly, is that they are the owners of the five pieces or parcels of farm land in dispute known as and called Usoko, Igege, Uhomiri, Ogane and Uwowiri. They claimed that they were therefore entitled to all compensation payable by the 2nd defendant in respect of parts of the farm lands in dispute affected by the Ajaokuta- Itakpe rail line. They prayed for the order of court in terms of their claims.

The 1st defendant, for his own part, claimed that the farm lands in dispute were owned and remained in the absolute possession of his Ezionogu clan. The 2nd defendant who maintained a neutral posture throughout the proceedings, waiting to pay compensation to the winning party, proffered no evidence at the trial.

At the close of evidence at the trial, the trial court with the parties, their witnesses and learned counsel visited the locus in quo and made copious notes of this inspection.

At the conclusion of hearing, the trial court after careful and meticulous review of the entire evidence placed before it found for the 1st defendant and dismissed the plaintiff’s claims. Said the Upper Area Court–

“….from the totality of the evidence before us, we hold that, putting the evidence of both sides on an imaginary scale, the evidence in favour of the 1st defendant is heavier than that of the plaintiffs………………In the circumstances, we dismiss the plaintiffs’ claim.”

The court then pronounced thus-

“(1) The plaintiffs’ claim to the five farmlands, Usoko, Igege, Uhomiri, Ogane and Uwowiri is hereby dismissed

(2) Therefore the plaintiffs are not entitled to receive the compensation which is expected to be paid on the above five farmlands by the 2nd defendant

.(3) The five farmlands should remain in possession of the 1st defendant’s Ezionogu clan and as such, they are entitled to the compensation on them.

(4) All the Exhibits are to be kept for a period of thirty days in case of an appeal.

(5) Exhibits P1 and D1 are to remain in this Court’s case file if there is no appeal. Exhibit P2 is to be returned to the plaintiffs after 30 days if there is no appeal. While Exhibits P3, D2, D3, D4 and D5 are to be returned to the 1st defendant after 30 days if there is no appeal.”

Costs assessed and fixed at N500.00 were awarded to the 1st defendant against the plaintiffs.

Dissatisfied with the said judgment, the plaintiffs lodged an appeal against the same to the Appellate Division of the High Court of Justice, Kwara State, holden at Okene. That court, in a unanimous decision, allowed the appeal, set aside the decision and orders of the trial court and concluded as follows:-

“In conclusion, we hold that since the trial Upper Area Court has abdicated its primary responsibility of evaluating the evidence placed before it and ascribing probative values to the said evidence, it is not competent to express that the plaintiffs have not proved their case by balance of probabilities to the 1st defendant/respondent’s evidence ………………… In the result ……………..…. the appeal succeeds. The judgment and the consequential orders of the trial Upper Area Court are hereby set aside.”

Aggrieved by this decision of the Appellate High Court, the 1st defendant appealed to the Court of Appeal, Kaduna Judicial Division. That court, again in a unanimous judgment, allowed the 1st defendant’s appeal. It held that since it would appear the only evidence considered by the trial Upper Area Court was those of PW10 and PW11 and the High Court failed to re-evaluate the rest of the evidence of the other witnesses not considered by the trial court, the case must be remitted for a trial de novo by a different panel of the Upper Area Court, Lokoja and it was so ordered.

Being dissatisfied with this decision of the Court of Appeal, the 1st defendant and the plaintiffs have appealed to this court. I shall hereinafter refer to the plaintiffs in this judgment as the respondents or cross-appellants and the 1st defendant as the appellant respectively.

Two grounds of appeal were filed by the appellant against this decision of the Court of Appeal. I find it unnecessary to reproduce them in this judgment. It suffices to state that the appellant, pursuant to the rules of this court filed his brief of argument in which three issues were identified for the determination of this court. These are as follows:-

“(1) Whether the Court of Appeal was properly constituted when it gave her judgment on 9/6/93.

(2) Whether the judgment of the Court of Appeal was right and

(3) The proper order this Honourable Court should make.

The respondents/cross-appellants, for their own part, submitted three issues in their brief of argument as arising in this appeal for determination. These are couched thus-

“1. Was the Court of Appeal (Kaduna) properly constituted when it gave its judgment on 9/6/93?

Was the Court of Appeal (Kaduna) right to have allowed the Defendant’s appeal?

If so, what was the proper consequential order which the Court of Appeal ought to have made in the circumstances of this case?

There is next the cross-appeal by the respondents/cross-appellants in which the issues for determination raised in their brief are as follows:-

“1. Whether the Court of Appeal was right, in view of the “one basic issue” posed for determination by that court, to have ordered a retrial de novo having conceded that the learned trial Upper Area Court had not properly (or at all) reviewed, appraised, assessed and evaluated the totality of the evidence adduced by both sides at the trial of the action.

Whether the Court of Appeal, Kaduna delivered a valid judgment (legally and or constitutionally) on 9/6/93 in view of the composition of the Court that delivered the judgment at that time.”

No reply to this brief was made by the appellant.

A close study of the issues set out in the respective briefs of the parties reveals that they are substantially identical and refer basically to the same questions. These relates to:

(i) Whether the Court of Appeal was properly constituted when it delivered its judgment in the appeal on the 9th day of June, 1993.

(ii) Whether the judgment of the Court of Appeal, the subject matter of this appeal is legally valid, constitutional and/or otherwise unimpeachable.

(iii) Whether the Court of Appeal was right to have set aside the judgments of the Appellate High Court and the trial Upper Area Court to order a retrial of the suit.

It is clear that the above three issues fully cover those set out in the respective briefs of the parties and are amply sufficient for the determination of both the appeal and the cross-appeal.

At the oral hearing of the appeal before us, both the appellant and J.O. Ijaodola, Esq. of counsel, who settled his brief of argument were absent although duly served. Mr. Ijaodola had in the appellant’s brief of argument submitted that the decision of the Court of Appeal in the present case was null and void in that the court was not properly constituted as at the time of the delivery of its judgment on the 9th of June, 1993. He claimed that this was because the presiding Justice of the panel that heard the appeal, Uthman Mohammed, JCA., as he then was, was no more a Justice of that Court as at the date of the delivery of the judgment of court in the appeal as he was sworn in as a Justice of the Supreme Court on the 3rd of June, 1993. In his view, that judgment was that of an “amorphous” and “unknown” court, that is to say “Supreme Court/Court of Appeal” as he put it. He concluded by stating that “such an amalgam Court, is unknown to our constitution”. He referred to the decision in Chief Kalu Igwe and others v. Chief Okuwa Kalu and others (1993) 24 NSCC. (Pt. 1) 393 and National Bank of Nigeria Ltd. v. Guthrie (Nig.) Ltd. and Another (1993) 24 NSCC. (Pt. 1) 401 in which cases Shehu Usman Mohammed, JSC, took full part at the hearing of the appeals but died tragically in a motor accident before the delivery of judgments in the proceedings. Learned Counsel then made bold to submit thus:-

“With all humility and profound respect to our judicial fathers, the two decisions cited above cannot stand the test of judicial analysis and the doctrine of judicial precedent. It is our humble view that the two decisions are void since the Supreme Court is not properly constituted unless it is made up of at least 5 Justices of that Court.”

He therefore contended that the decision of the Court of Appeal in the present case is null and void as the court was comprised of only two justices as against three as at the time of delivery of the judgment.

On the merits of the case, the appellant stressed that the admissions against interest by PW10 and PW11 were sufficient to defeat the respondents’ claims. Attention was also drawn to various findings of the Upper Area Court against the respondents and their witnesses and it was submitted that no other course of action was open to any court in the fact of those adverse findings than an outright dismissal of the cross/appellants’ claims. It was finally contended that although where an adjudicating tribunal is improperly constituted, the proper order for an appellate court to make would be that of a retrial by a properly constituted court, this court, in the present case, is competent to resolve the same issues which the Court of Appeal was called upon to determine. This court was therefore urged to allow the main appeal and to restore the judgment and orders of the Upper Area Court.

Learned Counsel for the respondents/cross-appellants, Dr. S.E. Mosugu in his address adopted the respondents’ brief of argument as well as that of the cross-appellants. He pointed out that both the appellant and the respondents were attacking the decision of the court below and that they are both ad idem on the invalidity and unconstitutionality of the said decision. Learned Counsel referred to section 226 of the Constitution of Nigeria, 1979 and stressed that the Court of Appeal shall be duly constituted if it consists of not less than 3 Justices of that court. He drew the attention of the Court to the decision in Attorney-General of Imo State V. Attorney-General of Rivers State (1983) 8 SC.10 and submitted that in-as-much as Achike, JCA., as he then was, read out the opinion of Uthman Mohammed, JCA., as he then was, from a type – written or hand-written script, there was nothing for Achike, JCA. to pronounce on. Questioned by the Court on whether learned Counsel was present in court when the said opinion of Uthman Mohammed, JCA. was read as he alleged, Dr. Mosugu admitted that he was not in court when the decision in issue was handed down. He expressed agreement with the learned Counsel for the appellant that the judgment of the Court of Appeal in these proceedings was therefore invalid.

On the merits of the case, it is the submission of respondents that the appellate High Court had done nothing wrong to warrant its judgment being set aside or reversed by the Court of Appeal. Learned Counsel referred to the decision in Chief Oyelakin Balogun v. Akanji (1988) SCNJ 104 and submitted that where a trial court ignored or failed to consider or evaluate evidence, the appeal court can interfere. It is the contention of the cross-appellants that the court below ought in the circumstances of this case to have carried out a re-evaluation exercise of the evidence and to have dismissed the appellant’s appeal in the interest of justice and in order not to perpetuate miscarriage of justice which the order for retrial entails. Learned counsel urged the court to allow the cross-appeal, set aside the judgment of the court below and restore the judgment of the appellate High Court.

The first two issues, in my opinion overlap and I propose, in this judgment, to consider them together. The first arm of the contention of learned counsel is that on the 9th day of June, 1993 when judgment in this appeal was delivered by the court below, only two Justices of the Court of Appeal sat and that this is contrary to the law and in breach of the Constitution. Counsel therefore submitted that the purported judgment of the Court of Appeal delivered while improperly constituted was of no effect and null and void.

Section 226 of the Constitution of Nigeria, 1979 which, at all material times, was in operation provided as follows:-

“226. For the purpose of exercising any jurisdiction conferred upon it by this constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal ………………… There is also section 9 of the Court of Appeal Act, 1976 which in the same vein provides thus –

“9. The Court of Appeal shall be duly constituted for the purpose of hearing and determining any appeal if it consists of at least three justices…..”

There is, however, the provision of section 11 of the Court of Appeal Act, 1976 dealing with the delivery of judgments which provides as follows:-

“11. When, after an appeal in any cause or matter has been fully heard before the Court of Appeal, judgment is reserved for delivery on another day, then, on the day appointed for delivery of the judgment, it shall not be necessary for all those Justice before whom the appeal in the cause or matter was heard to be present together in court, and it shall shall be lawful for the opinion of any of them to be reduced into writing and to be read by any other Justices; and in any such case the judgment of the Court of Appeal shall have the same force and effect as if the Justices whose opinion is so read had been present in Court of Appeal and had declared his opinion in person.”

I think reference must at this stage be made to the provision of Section 258(2) of the 1979 Constitution which run thus –

“258(2) Each Justices of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing, that he adopts the opinion of any other Justices who delivers a written opinion;

Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.”

The questions that have arisen under issues 1 and 2 for determination in this appeal are by no means new. In Alhaji Aminu Ishola v. Societe Generale Bank (Nig.) Ltd. (1997) 2 NWLR. (Pt. 488) 405, a similar situation that calls for decision in this appeal was considered by this court. In that case, this court held that pursuant to section 11 of the Court of Appeal Act, 1976, once an appeal in any cause or matter has been fully heard before the Court of Appeal and judgment is reserved, it shall not be necessary for all the three Justices who heard the appeal to be present together in court on the day appointed for the delivery of the judgment. It is lawful if the written opinion of any one of them who is unavailable is read by any other justice of that court. It was further held that the judgment of the Court of Appeal in that case was not void simply because only 2 Justices of the Court of Appeal who were among those who heard the appeal were present to deliver the judgment of court. This court has not been invited to depart from its decision in the Aminu Ishola case (supra) and, speaking for myself, I can find no reason to change my opinion on the decision of this court in that case.

It must however be stressed that section 11 of the Court of Appeal Act, 1976 appears to cover cases where all the Justices that sat on an appeal are still in the service of that court on the date of judgment and had written and signed their judgments but because some or all of the Justices for one reason or the other are unable to be physically present to deliver the judgment, they gave same to other Justice or Justices to read them on their behalf. See Lawani Adesokan and others v. Prince Michael Adegorolu (1997) 3 NWLR. (Part 493) 261 of 273 – 274 Per Ogundare, JSC.

Section 11 of the Court of Appeal Act, 1976 must be contrasted with S.258 (2) of the 1979 Constitution. Section 258(2) of the 1979 Constitution permits the opinion of a Justice who joined in the hearing of an appeal but is unable to be present in person for the delivery of the judgment to be pronounced or read by any other Justice whether or not he was present at the hearing. The word pronounced has received judicial interpretation in the judgment of this court in Attorney-General of Imo State v. Attorney-General of Rivers State (1983) 8 SC. 10 where Fatayi – Williams, CJN., declared as follows:-

“To my mind, the phrase “may be pronounced” used in subsection (2) above can only mean, in the context, “to utter, speak, declare aloud, or proclaim. Moreover, since the phrase is obviously intended to distinguish “what may be pronounced” from what “may be read”, what is pronounced cannot be the same as what is read from a typewritten or handwritten script. It must mean, and I so hold, what is orally proclaimed or declared aloud from personal knowledge.

In view of the interpretation which I have put on the phrase “may by pronounced”, I also hold that any of the Justices of the Supreme Court who heard any cause or matter can, after a decision has been arrived at by all the justices, pronounce the opinion of another Justice who for one reason or another, is unable to reduce his opinion into writing or be present when the judgment in the case is being delivered by each of the other Justices.”

Accordingly, whereas under section 11 of the Court of Appeal Act, ibid, the opinion in issue must be confined only to that of a justice who sat on the appeal and remained a serving member of the Court of Appeal as at the date of the delivery of the judgment in the case, the opinion of an absent Justice under section 258(2) of the 1979 Constitution may be pronounced as long as that opinion was given when he was a member of the relevant court. Unlike under section 11 of the Court of Appeal Act, it will not matter that such a Justice whose opinion under section 258(2) of the 1979 Constitution is being pronounced was subsequently elevated to a higher court, died, retired or was dismissed from service before the judgment in the appeal was delivered. As I had cause to observe in Shitta-Bey V. Attorney-General of the Federation and Another (1988) 10 NWLR. (Part 570) 392 at 438.

“I think it ought to be stressed, however, that the provision as to the reading of the opinion of any Justice who was on a panel that heard an appeal but is unable to take part in the delivery of the Judgment pursuant to section 11 of the Court of Appeal Act, 1976 seems to cover only cases where the unavailable Justice who sat on the appeal is still a serving member of the Court of Appeal. This is unlike the provisions of section 258(2) of the Constitution of the Federal Republic of Nigeria, 1979 particularly the proviso thereof, which clearly deal with cases where the unavailable justice who heard an appeal, whether in the Supreme Court or the Court of Appeal, but is unable to take part in delivery of the judgment is a serving Justice of the court in issue or has ceased to be a member or a serving justice of either of those courts. In other words, section 258(2) of the 1979 Constitution seems to cover both serving Justices, of the one part, and retired, dismissed, elevated or deceased Justices of those courts, of the other part. The later category of Justices by virtue of their retirement, dismissal, elevation or death before the date of judgment obviously ceased to be members of either court as at the date of delivery of such judgment in issue.”

It must therefore be emphasized that once the opinion of an absent Justice even though written at a time he was a member of the relevant court is read as against being pronounced after he had ceased to be a member of such relevant court by elevation to a higher bench, death, dismissal or retirement, such an opinion would be given without jurisdiction and would consequently be a nullity. See Ogbuinyiya and others v. Obi Okudo and others (1978) 3 LRN.318 at 327-328. See too Lawani Adesokan V. Prince Michael Adegorolu, (supra) at page 274 per Ogundare, JSC.

In the present case, the appeal was duly heard on the 10th March, 1993 by Uthman Mohammed and Achike, JJCA., as they then were, and Okunola, JCA. Judgment was thereafter reserved. Before the 9th June, 1993 on which date judgment of Court was delivered, Uthman Mohammed, JSC. had been elevated to the Supreme Court bench and therefore ceased to be a judge of the Court of Appeal. Only Achike, JCA. as he then was, and Okunola, JCA. sat on the date of the delivery of the said judgment. The record of proceedings shows that Achike and Okunola, JJCA. allowed the appeal. It is also clear from the record of proceedings that Uthman Mohammed, JCA. as then was, had before his elevation to the Supreme Court bench submitted a written opinion signed by him to Achike, JCA., as he then was, in which he merely said-

“I agree”

This agreement by Uthman Mohammed, JCA. was included in the record of appeal to this court.

The proceedings of 9th June, 1993 after the delivery of the judgments of Okunola and Achike, JJCA went thus –

“Pronouncement on the judgment of Uthman Mohammed, JCA. (as he then was) by Achike, JCA.

The judgment of Uthman Mohammed, JCA., was subsequently proclaimed by Achike, JCA. There is no suggestion that the said opinion of Uthman Mohammed, JCA. was read by Achike, JCA. Indeed Achike, JCA. was meticulous enough to indicate and to put it down in writing that the opinion of Uthman Mohammed, JCA. was pronounced by him. There is no suggestion that the opinion of Uthman Mohammed, JCA. as he then was, was read on his behalf by Achike, JCA., on the date judgment was delivered in the appeal. Indeed, questioned by this court, learned Counsel for the cross-appellants admitted that he was not present in court when judgment was delivered in the cause. It is plain to me that the opinion of Uthman Mohammed was duly pronounced as indicated by Achike, JCA., as required by law and was never read as Dr. Mosugu had submitted.

I think it is necessary in this regard to draw attention to the legal presumption of regularity, omnia praesumutur rite esse acta which principally, is applied to judicial and official acts. The application of this presumption which is rebuttable was neither challenged nor dislodged by the cross-appellants in any manner in this case. And as I have observed, this is quite understandable as learned cross-appellant’ counsel on his own admission was not in court on the date judgment in the appeal was delivered. In my view the presumption of regularity fully applies to the proceedings of the 9th June, 1993 on which date judgment in the appeal was delivered. It is my view therefore that the judgment of the court below appears to me unimpeachable and I so pronounce.

Learned counsel for the appellant then launched what seemed to me a puerile attack on the decisions of this court in Chief Kalu Igweh and others v. Chief Okuwa Kalu and National Bank of Nigeria Ltd. v. Guthrie (supra), He submitted that the judgments of this court in those cases cannot stand “the test of judicial reason”. These are cases in which the late Usman Mohammed., JSC. took full part in hearing of the appeals but died before the delivery of the judgments. The judgments of Usman Mohammed, JSC. were duly pronounced as required by law in those cases and it is plain to me that learned counsel’s agreement to the effect that those judgments are void is, with respect, totally misconceived and lacking in substance.

It cannot be over-emphasized that in-as-much-as counsel, and indeed, academicians are fully entitled to review and if necessary to criticise, in appropriate cases, any judgments of all courts of law, inclusive of this court, as they may deem fit, it ought to be admonished that such criticisms must not only be constructive but must be based prima facie on some modicum of clarity of thought, if not scholarship. A judgment may not be successfully attacked by the employment of mere verbiage with hardly any rationale and/or substance to justify such criticism. As I have already observed, the decisions of this court in the Chief Kalu Igweh and the National Bank of Nigeria cases, (supra) involved cases where a member of this court who fully participated in the hearing of the appeals and had made his decisions in the appeals known at conference died before the delivery of judgments in the cases. His opinion were duly pronounced as required by law. This practice has been repeatedly followed in various other cases of this court and the Court of Appeal in circumstances where a justice of either court who sat on an appeal and deliberated at conference on such appeal died, retired or was elevated to a higher bench before the delivery of judgment. I think counsel’s attack on the two decisions in issue is clearly unmeritorious and without substance. I will now turn to issue three which poses the question whether the Court of Appeal was right to have set aside the judgments of the Appellate High Court and the trial Upper Area Court and to order a retrial of the suit.

A close study of the judgment of the Appellate High Court deals in no uncertain terms that the appeal before it was allowed on the ground principally that the trial Upper Area Court abdicated its primary responsibility of evaluating the evidence placed before it and failed to ascribe probative value to the said evidence. Said the court:-

“In conclusion, we hold that since the trial Upper Area Court had abdicated its primary responsibility of evaluating the evidence placed before him and ascribing probative values to the said evidence. It is not competent to express that the plaintiffs had not proved their case by balance of probabilities to the 1st defendant/respondent’s evidence.”

The Court of Appeal was more specific on the point. It stated:-

“From the above findings of fact made on the evidence of PWs 10 & 11 reviewed supra, the trial Upper Area Court concluded that their evidence is unreliable. This finding is based on credibility of both witnesses. This is the view of the Upper Area Court on the evidence of both PWs 10 and 11. In a similar vein, pages 108-115 merely show a review of the evidence of PWs 1-12 while pages 115-118 show the review of evidence of PWs 1-12 while pages 115-118 show the review of evidence of DWs 1-5. The only evidence considered by the trial Upper Area Court as could be seen from the Court’s appraisal of evidence at page 120 of the Upper Area Court records seems to be only those of the PWs 10 and 11 supra.”

It went on:-

“As can be seen from the trial Upper Area Court’s finding of facts reproduced supra, the court merely considered the evidence of PW10 and PW11. It was therefore not surprising that the High Court (Appellate Division) made this the basis of their judgment at pages 228-230 of the records.”

The Court of Appeal continued thus:-

“In conclusion we hold that since the trial Upper Area Court has abdicated its primary responsibility of evaluating the evidence placed before it and ascribing probative values to the said evidence, it is not competent to express that the plaintiffs have not proved their case by balance of probabilities to the 1st defendant/respondent’s evidence.”

It concluded –

“In sum, this appeal succeeds and it is allowed on the ground that the High Court (Appellate Division), Lokoja failed to properly re-evaluate the evidence of other witnesses which the trial Upper Area Court, Lokoja ignored or failed to evaluate. Consequently, judgment of High Court of Kwara State in its appellate jurisdiction sitting in Okene (now Kogi State) in suit No.KWS/OK/1A/90 presided over by J.A. Ibiwoye and S.K. Otta, JJCA, delivered on 15/3/91 which set aside the judgment and consequential orders of the trial Upper Area Court, Lokoja in suit No. CVF/36/88 dated 26/1/90 is hereby set aside along with the said judgment and consequential orders of the trial Upper Area Court. In consequence, I order that this case be retried de novo by a different judge and members of the Upper Area Court, Lokoja other than those that had at one time or the other been involved in the case.”

It is thus crystal clear that the Court of Appeal found itself able to allow the appeal before it on the ground that the Upper Area Court failed in its primary duty to evaluate the evidence before it and ascribe probative values thereto. The Appellate High Court was also chided for falling into the same error.

There can be no doubt that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses. Where a court of trial unquestionably evaluates the evidence and justifiably appraised the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. See Akinloye and Another v. Eyiyola and others (1968) NMLR. 92 at 95,-Woluchem v. Gudi (1981) 5 SC. 291 at 320. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court made the findings of fact, the appeal court cannot interfere. See Odofin v. Ayoola (1984) 11 SC. 72, Amadi v. Nwosu (1992) 5 NWLR., (Part 241) 273 of 280. And where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such material issues depends on credibility of witnesses, the proper orders to make is that of retrial. See Karibo v. Grend (1992) 3 NWLR. (Part 230) 426. A retrial is however not appropriate where it is manifest that the plaintiff’s case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the Court. Isaac Ayoola v. Jinadu Adebayo (1969) 1 AII NLR. 159.

I think the first task will be to decide whether, as found by the court below, both the Upper Area Court and the Appellate High Court were right in holding that only the evidence of PW10 and PW11 were considered and that the evidence of the rest of the witnesses was neither evaluated nor was there any ascription of probative value to such evidence.

I have carefully studied the judgment of the trial Upper Area Court in issue and confess that it is one of the most painstaking judgments written by an Upper Area Court. I agree that pages 119 to 131 of the printed record of proceedings are mere summary of the evidence and do not therefore constitute an evaluation of such evidence. See Uwegba v Attorney-General Bendel State (1986) 1 NWLR. (Part 16) 303. However, from page 135 to the end of the judgment at page 138 is a thorough evaluation of all the evidence before the court and the ascription of probative value to such evidence of all the witnesses that testified before it. In that exercise, a number of witnesses for the plaintiffs were castigated and disbelieved. Indeed, learned counsel for the cross-appellants on being confronted by this court at the hearing of the appeal appeared to admit that there was ample evaluation of all the evidence adduced before the court. The Upper Area Court concluded thus –

“But from the totality of the evidence before us, we hold that, putting the evidence of both sides on an imaginary scale the evidence in favour of the 1st defendant is heavier than that of the plaintiffs.”

It is clear to me that the evidence of the entire witnesses was duly evaluated by the Upper Area Court and that both the appellate High Court and the Court of Appeal were in definite error by holding that there was no evaluation of the evidence. That being so, the ground upon which an order of retrial of the case was made completely collapses and falls to the ground. Issue three must therefore be resolved against the cross-appellants.

In the final result, the main appeal of the 1st defendant/appellant is hereby allowed and the judgment and orders of the Court of Appeal remitting the case for retrial by a different panel of the Upper Area Court is hereby set aside. The judgment and orders of the appellate High Court are also set aside and those of the trial Upper Area Court are hereby restored. The cross-appellant’s appeal is without substance and the same is hereby dismissed. There will be costs to the 1st defendant/appellant against the cross-appellants which I assess and fix at N10,000.00.

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SC. 258/1993