Christopher C. Obiaso & Ors V. Isaac C. O. Okoye & Anor (1989)
LawGlobal-Hub-Hub Lead Judgment Report
UWAIFO, J .C.A.
This action was filed at the Onitsha High Court on 19th march, 1976. The statement of claim was filed on 19th July, 1976 and the statement of defence on 29th November, 1976. On 25th January,1977, the statement of claim was amended and consequently the statement of defence was amended on 14th March, 1977. Five reliefs were sought altogether as follows:
“(i) Declaration of title to all that piece or parcel of land known as and called ‘ANA ABOGWUGWU’ situate at Okpuno Aboji Village, Oba within jurisdiction and the annual value of which is about N40.00.
(ii) An order of Court for the 1st and 2nd defendants to accept the redemption fee paid by them to the plaintiffs’ family in 1968 in respect of the portions of the said land more particularly and accurately delineated on the plaintiffs’ survey plan to be filed to Court.
(iii) Possession of the said portions of land pledged as aforesaid.
(iv) N400.00 general damages for trespass and wanton destruction of the plaintiffs’ economic crops on the land in dispute outside the area pledged to the 1st and 2nd defendants as aforesaid.
(v) Perpetual Injunction to restrain the defendants, their servants, agents, representatives and each and everyone of them from further acts of trespass upon the said land or from interfering in any way whatever with the plaintiffs’ enjoyment of the said
It is perhaps a useful guide to note from the outset that: (a) from reliefs (ii) and (iii) above, the land(s) pledged is or are inferred to be for the plaintiffs’ family; (b) there is an inference by the plaintiffs that the contracts of pledge were between the plaintiffs’ family and the 1st and 2nd defendants. I have pointed these matters out in view of the pleadings and evidence on the said pledges, and the importance the trial Judge attached to them in deciding this case. In truth those inferences would be wrong, misleading and unjustified. At this stage it is pertinent also to mention that the plaintiffs sued in a representative capacity on behalf of their family and that the defendants were sued in their personal capacities.
The plaintiffs in their pleading aver that the land in dispute is part of a parcel of land which they call Ana Abogwugwu and which they say is situate within Aboji Village: see paragraphs 3 and 4. They also aver that Ana Abogwugwu is part of Abogwugwu land: see paragraphs 8 and 9. The defendants on the other hand say as well that the land in dispute forms part of a larger parcel of land known as Abogwugwu although the piece of land itself in dispute is called Ani Umuokpagwu. But they say that Ani Umuokpagu is situate within their own village, Umuogali: see paragraphs 3, 4 and 9.
Next is that the plaintiffs’ claim that their family have been owners of Ana Abogwugwu from time immemorial and have exercised exclusive acts of ownership and possession, the people of Aboji having been the first to clear and take possession of the land which was then virgin piece of land. It was in that process the plaintiffs’ family acquired the land in dispute: see paragraphs 6, 7, 8, 9 and 10. The aspect of these averments as to how the plaintiffs’ family became the owners of the land in dispute is not clear.
The plaintiffs then went on to name some of their ancestors within living memory who have enjoyed the land, including one Oliobi and one Agusiokwu. The descendant of Oliobi is the 1st plaintiff, while the 2nd plaintiff is that of Agusiokwu: see paragraphs 11 and 12. The land in dispute was shared among the sons of Oliobi who was the grandfather of the 1st and 2nd plaintiffs. Although, as pleaded, this was for farming purposes only, each sub-family lets out portions of its area of land to tenants. That was how some portions were let out to the 2nd, 3rd and 4th defendants: see paragraphs 13, 14 and 15.
The defendants deny the plaintiffs’ claim to ownership, possession and letting out as above-stated. Rather they say that their ancestors acquired the land from time immemorial by being the first to clear it when it was virgin land. The land so acquired is known as Ani Umuokpagu but different families of Umuogali village together own Abogwugwu land in Umuogali village. It will be noted that while both parties plead identical origin of ownership, both claim also that the land in dispute is within their own respective villages.
The specific act of ownership pleaded by the plaintiffs is that the 1st and 2nd defendants obtained in 1968 two separate pledges from one late Onyeuke Agusiokwu, the elder brother of the 2nd plaintiff. The first made to the 1st defendant was for an amount of ?4.00 and the second made to the 2nd defendant was for ?11.00. The plaintiffs aver that these parcels of land are within the land in dispute. While the defendants admit such transactions, they say that the parcels of land are (a) not within the land in dispute. (b) the personal lands of the said Agusiokwu and (c) not what the plaintiffs can rely on to sue in a representative action.
It seems that the issues joined on the pleadings are boldly: (1) The village in which the land in dispute is situated. (2) Traditional history of ownership. (3) The location and ownership of the parcels of land pledged to support claim to title in respect of the land in dispute. Both parties also allege acts of possession. But in addition, the defendants specifically aver in paragraph 7(a) of the amended statement of defence what might be considered acts of old habitation as follows:
“The defendants further aver that their ancestors lived on the land in dispute and that some marks of the ruins of the houses of their ancestors as well as the shrine of the juju which some of the defendants and their ancestors worshipped stand on the land in dispute. One of the wealthy ancestors of the defendants buried cowry shells on a spot in the land in dispute.”
The learned Judge (Awogu, J.) on 14 September, 1983 in a reserved judgment found for the plaintiffs, granting them all the reliefs they sought F with costs of N600.00. As to the capacity in which the defendants were sued and how they defended, he said:
“…the defendants are sued personally. Paragraph 2 of the amended statement of claim says so. Paragraph 2 of the amended statement of defence admits this. This being so, the defendants are estopped from contending that the land in dispute is Umuokpagu family land. If this was clear to them at the beginning of this case they should have sought to defend the action on behalf of their families or in the alternative, their family should have sought to be made a party to the action. Ezeuko for the defence pointed out that the defendants raised the issue of family ownership in paragraph 9 of the amended statement of defence. I agree. What that says to me, however, is that the defendants personally owned the land as in paragraph 2, but sought to show how it descended on them in accordance with Oba native law and custom. In Court, however, they fought the battle, not on the basis of personal ownership, but of family ownership.”
He then said inter alia towards the end of the judgment as follows:
“…the defendants deny the title of the plaintiffs and set up a rival title. It is clear principle of law that there can be no concurrent possession of the same land adverse to each other and if such possession exists the court must settle the issues of ownership as between the competing titles… It is my view that on the balance of probabilities the plaintiffs are entitled to succeed in the declaration sought. This being so, they are also entitled to succeed in their claim to damages for trespass since the defendants have not denied the trespass. I must say that as the defendants were sued in their personal capacity, I can find no evidence of trespass led against the 5th defendant who appears to have been sued because he was in collusion with the other defendants…”
The defendants have appealed on seven grounds, which as usual with some counsel, are very verbose. The questions for determination tied to them are as follows: “(a) Whether in view of lapse of time, undue and inordinate delay and/or intervals in the determination of this case which took 5 years and 2 months to complete the Court of Appeal ought to interfere with the findings made by the trial Judge having regard to the delay aforesaid and the number of witnesses who gave evidence in this case and send the case back for retrial. (b) Whether the respondents in view of the decision of the Supreme Court in Mogaji & Ors v Odofin (1978) 4 S.C. 91 at 94 could be said to have proved their case on the balance of probabilities. (c) Whether in view of the sharp conflict in the evidence of the parties as to the existence of certain features on the land which features go to the root of the ownership of the land, this is a case in which the learned trial Judge ought to have visited the locus in quo to resolve the conflict. (d) Whether the appellants are estopped from contending that the land in dispute is family land merely because they admitted being sued in their personal capacity.”
I intend to take an overview of the issues in dealing with this appeal in the first instance and then make necessary conclusions. Both parties plead their respective roots of title. In a sense, as stated earlier in this judgment, they look similar. But it is quite impossible to say that the learned Judge evaluated the evidence of traditional history which each party relied on in support of title. In any case he did not make use of whatever evidence was available in that regard. It is unbelievable that all he said about the traditional evidence led by the plaintiffs was: “The parties are agreed as to the mode of acquisition of land in Oba, which is that the person who first cleared virgin land and occupied it became the original owner of the land. The plaintiffs pleaded this in paragraphs 9-12 of their amended statement of claim. The evidence before me supported the root of title.” No more was said of it. The fact that the evidence supports the averments, if ever this could be said to be so in this case, does not settle the question whether the evidence was accepted by the trial Judge.
A trial Court must make findings on the evidence by assessing the quality of the evidence, giving necessary credence to the witnesses by taking advantage of seeing and hearing them testify, weighing the evidence of one against that of another where appropriate and in the end making up its mind which side to prefer. The trial Judge in the present case failed to do that. As was said in Kalio v Woluchem (1985) 1 N.W.L.R. (Pt.4) 610 at 622 per Coker, J.S.C:
“The learned trial Judge did not throughout his judgment say he believed any of the witnesses called by the parties. He did not say he accepted the evidence of P.W.1, P.W.2 or that of P.W.4.
It is clear the trial Judge did not take advantage of having seen and heard the witnesses to enable him decide which of the two parties case was preferable to the other on the preponderance of credible evidence or which weighs more than the other. The learned trial Judge failed to resolve the issue of ownership. He ought not in the exercise to assume it belonged to the plaintiffs’ family simply because of the defence averments that the sale to him was with the knowledge and consent of the head of Woluchem family. His duty was to take into account carefully the totality of the evidence and then decide on the balance of probabilities which of them to accept.”
On the issue of traditional history of the plaintiffs, the learned Judge completely overlooked what he was expected to do. Rather he spent time assessing and weighing the evidence of the defendants on that issue with 3 clear sense of opposition to it. He forgot that the onus was on the plaintiffs to prove their case and that, “whichever course is adopted, what is necessary is that they (trial Judges) must always bear in mind that the plaintiff has to succeed, on the preponderance of evidence, on the strength of his own case not on the weakness of the defence”: see Chief Victor Woluchem & Ors v Chief Simon Gudi & Ors (1981) 5 S.C. 291 at 294.
What the trial Judge did was to direct his attention to first demolishing the defendants/appellants’ case and to use what he considered as the weakness in their case to reach a conclusion as to the merit of the plaintiffs/respondents’ case. He failed to consider the case by weighing the evidence on the balance of probabilities in conformity with the allegorized principle of the use of the imaginary scale as enunciated in Mogaji v Odofin (1978) 4 S. C. 91 at 93. Trial courts should always keep that in mind so as to avoid falling into error in their primary duty of assessing and evaluating evidence to determine to which side the balance tilts, not losing sight of the burden on the plaintiff. The method the learned Judge adopted in the present case was disapproved by the Supreme Court in Owoade v Omitola (1988) 2 N.W.L.R. (Pt.77) 413 at 422 per Nnaemeka-Agu, J.S.C. At page 428, Obaseki, J.S.C., had this to say:
“The approach of the learned trial Judge placed the onus of proof on the defendant in a claim for declaration of title to land, made the weakness of the case for the defendant a deciding factor to the success of plaintiffs’ case even without cogent and credible evidence of high probative value in support of the plaintiffs’ case. This is fatal to the plaintiffs’ case when tested on appeal and in this appeal in particular.”
Even after looking at the evidence of the defendants on traditional history with that frame of mind as he did, the learned Judge did not say it was untrue or inconclusive. After he finished tracing the ancestry of the defendants and the evidence led, he simply said, without apparent reason, that the traditional evidence was confusing. He then observed: “In paragraph 9 of the amended statement of defence, the defendants claimed that’ Ana Abogwugwu’ in dispute forms part of a smaller parcel of land called’ Ana Umuokpagu’ owned by different families in Umuogali, and it was the defendants’ share of this ‘Ana Umuokpagu’ that was in dispute. This hardly explained how Umuokpagu as the eldest son of Umuagu inherited the land in dispute. The other portions of land owned by other families in Umuogali were not shown the defendants’ plan.”
This observation, as most others, was very unfair to the defendants. The plaintiffs in their pleading did not do better than the defendants. Paragraph 9 in question should be read together with paragraph 15(a), and the rest is a matter of evidence as to how Umuokpagu inherited the land. As regards the stricture that other portions of land owned by other families in Umuogali not having been shown in the defendants plan, I do not think the learned Judge examined the said plan (Exhibit D) carefully. Paragraph 5 of the amended statement of defence reads:
“The defendants deny paragraph 5 of the statement of claim and in answer thereto aver that the land in dispute is bounded on the East by the land of Mora Family and the land of Agbafuna; On the West by the land of the households of Igbanugo, Madueke Emefo. Enendu and Obi Agina; On the North by the land of Nwora Family and on the South by the land of the households of Osadebe and Obiemeka both of the defendants’ village, Umuogali, and also by the land of Mora Family. The land in dispute is more particularly shown delineated and verged pink on the defendants’ said plan No. AN/GA605/76 filed with the Statement of Defence in this suit.”
From the above, it will be noted that the following families of Umuogali were mentioned: Osadebe, Obiemeka, Obi Agina, Madueke Emefo. Enendu. These families are inserted on the plan. Other families outside the land in dispute are also inserted, namely, Mora, Igbanugo, Nwora. As a fact, the plan filed by the defendants looks more impressive and more detailed than that of the plaintiffs even at a glance.
The next issue arising from the judgment is the acts of possession. The learned Judge observed in this regard as follows:
“On acts of possession on the land in dispute the defendants showed in Exhibit D the area inhabited originally by their ancestors and claimed that the ruins were still visible. The plaintiffs say that no one ever lived on the land. The defendants also contend that their ancestors buried cowries on the land in dispute. The plaintiffs denied this. Finally, the defendants say that there were graves of their ancestors on the land in dispute (not now visible).
The plaintiffs denied this. Ezeuko for the defence suggested that this was a case in which the Court should have visited the Locus in quo to resolve the issues. The visit might have been necessary however only if those were the points that would have tilted the balance one way or the other; unfortunately they are not.”
This is clearly an unfair approach in the consideration of the defendants’ case. The defendants pleaded the existence of their ancestral juju shrine on the land, ruins of houses, cowries buried in the old days – evidence of old and long habitation. These are indicated in their survey plan and evidence was led in support of them. These would be evidence of some acts of long possession. The learned Judge failed to consider acts of possession as stated above as well as other acts of farming and letting. He did not consider that evidence of the type of long user alleged by the defendants was capable of affecting the case, and on that basis he turned down a request to visit the locus in quo to ascertain whether the plaintiffs truthfully denied the existence of those facts.
The learned Judge so far did not consider the known ways of determining ownership of land which include (1) traditional evidence, (2) acts of the person claiming the land such as leasing, selling, letting, farming etc (3) acts of long possession and enjoyment, as laid down in Idundun v Okumagba (1976) 9 & 10 S.C. 227.
It is well known that where evidence of traditional history is led and is not contradicted, and is found by the court to be cogent, it can support a claim for declaration of title: see F. M. Alade v Lawrence Awo (1975) 4 S.C. 215 at 228; Stool of Abinabina v. Enyimadu 12 W.A.C.A 171 at 174; Balogun v A kanji (1988) 1 N.W.L.R. (Pt.70) 301 at 320-322. It is when evidence of tradition is inconclusive that the case must rest on question of fact, in which circumstance the plaintiffs must prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the exclusive owners: see Ekpo v Ita (1932) 11 N.L.R. 68. As to how in practice this should be done in considering a case where both parties rely on traditional histories which are found to conflict and are inconclusive, resort must be had to the celebrated principle in Kojo II v Bonsie (1957) 1 W.L.R. 1223, which enjoins the court to consider evidence of recent acts of possession by both parties and to see from that who between them is more probable to be the owner of the land in dispute.
The learned Judge relied on the issue of the two pledges as decisive. He said in respect of exhibits B and C which evidence the two transactions of pledge whereby two different parcels of land were pledged to the 1st and 2nd defendants respectively: “One act of possession which, in my opinion, should really settle the issue is in respect of Exhibits B and C. The defendants showed the two parcels in their plan, Exhibit D, but placed them outside the land in dispute. Thus, the pledge is admitted but the location is disputed. This being so, the location of both parcels would help to resolve the dispute between the parties.” He then went on to consider the documents in question and tried to relate them to the two survey plans filed by the plaintiffs and defendants respectively. He eventually came to the conclusion that the parcels of land pledged were within the land in dispute and therefore that that determined the ownership of the land in dispute in favour of the plaintiffs’ family.
With due respect to the learned Judge, it seems to me he took a beclouded premise to arrive at an inevitably wrong conclusion. Exhibits B and C specifically say that the parcels of land pledged were owned by one Mr. Onyeuke Agusiokwu. In fact exhibit B makes it clear that he “personally A owned” the parcel of land therein referred to. It cannot therefore be argued by the plaintiffs in support of their case that the said parcels of land pledged formed part of their family land. In other words they cannot rely on those exhibits and alter what they say in clear words simply to support their case as to the ownership of the parcels of land therein pledged. The evidence of P.W.8, Obiefo Ibeabuchi, who testified on behalf of the plaintiffs, confirms a distinction between the plaintiffs’ family land said to be in dispute and Agusiokwu’s land. He said in cross-examination: “I know one Agusiokwu of Oliobi family. I have to go from Agusiokwu’s land to reach the land in dispute.”
That is what in effect the defendants have said all along. They aver that the lands pledged by Agusiokwu are not within the land in dispute but within his personal land. They said so in evidence. Their survey plan which is identical with the plaintiffs’ survey plan as regards the land in dispute puts the pledged lands outside the land in dispute.
The learned Judge based his conclusion on the so called description of the location of the land pledged by exhibit B on what is stated therein which he quoted as follows: “That that piece or portion of land situate at Abogwugwu, Oba, adjacent to Mr. Iweabudike Emefo’s compound and personally owned by Mr. Onyeuke Agusiokwu of Abogwugwu… “The plaintiffs show that land within the land in dispute in their survey plan while the defendants show it outside it in their plan. But in plaintiffs’ plan they show two houses occupied by one Madueke Iweabudike as forming the compound of Iweabudike Emefo. Neither Madueke Iweabudike nor Iweabudike Emefo was called to testify. In respect of the land pledged in exhibit C, the following is stated: “That that piece or parcel of land situated at Abogwugwu Oba and owned by Mr. Onyeuke Agusiokwu of Aborji Oba which is bounded on two sides by both M/S Okoloji Igbodelu and Odune Nwankwo pieces of lands..
The plaintiffs again put the said land pledged by Exhibit C in their plan within the land in dispute as being between the farms of Iwuobi Agwuebo and Isaac Okoye. Isaac Okoye is the 1st plaintiff. He suddenly in evidence said he was also known as Okoloji Igbodelu. The learned Judge did not give a thought tothis. Again, Exhibit C does not mention Iwuobi Agwuebo which appears in exhibit A but Odune Nwankwo. The trial Judge did not also give a thought to this. The locations in Exhibit A of the said parcels of land pledged seemed to have been manipulated by the plaintiffs. Evidently, the trial Judge based his judgment for the plaintiffs on these wholly unreliable circumstances of the alleged location of the personal land of Agusiokwu from which parcels were pledged to the 1st and 2nd defendants. What the trial Judge should have been particular about he was not. He should have realised that both parties are from different villages, each claiming that the land was within their own village. He should have endeavoured to determine horn the evidence, if he could, whether the land is situate in one village or the other: See Appoh Ababio v Doku Kanga (1932) 1 W.A.C.A. 253 at 254: Omoregie & Ors. v Idugiemwanye & Ors. (1985) 2 N. W.L.R. (Pt.5) 41 at 59-60 per Oputa, J.S.C.
The trial Judge also, unfortunately, thought there was something wrong with the defendants’ reliance on their family ownership of the land in dispute when they were sued and they defended in their personal capacities. I think he erred. It was the plaintiffs who chose to sue them in their personal capacities. They disclosed in their pleading and evidence that they were on the land by virtue of their family’s interest in the land. They are quite entitled to do so. It should be remembered that they did not counterclaim for title or any relief. If the plaintiffs so wished they could have amended to bring in the defendants’ family to defend along with the defendants so that they could be bound by the decision. Or the court could have, if it felt that was necessary, caused the defendants’ family to be made co-defendants. In fact in an appropriate case, even on appeal, the capacity in which a party sued or defended may be amended: see Afolabi v Adekunle (1983) 8 S.C. 98 at 102. In the present case the fact that the defendants relied on the interest of their family in the land cannot adversely affect their case.
The final complaint in this appeal which I should deal with is that the trial took such an inordinate length of time that the trial Judge can be said to have lost the impressions which the opportunity of a court of trial could afford him. Let me recount that the evidence by the plaintiffs commenced on 30 October 1978 and ended on 2 September, 1980 (a period of about two years). The defendants opened their case that same day and ended evidence on 5 November, 1981 (slightly over one year). Addresses of counsel were not concluded until 22 August, 1983 (nearly two years after evidence in the case ended). Judgment was delivered on 14th September, 1983. There were on the whole 33 adjournments, all but one at the instance of the court. This was because proceedings on each day were usually very short.
I do not think the long delay of 5 years in concluding a case from the first day of evidence till judgment can be seen to be in furtherance of the course of justice. Indeed I will say it is inimical and scandalous to the administration of justice. Trial courts should do their best to enhance the dispensation of justice by expeditious conclusion of cases. They may achieve this by not taking on too many cases at a time as part-head matters.
The courts have often frowned on long delays in concluding cases by trial courts.
In Chief Yakubu Kakara v Chief Okere Imonikhe (1974) 4 S.C. 151, hearing commenced on 20 January, 1971 and ended with the addresses of counsel on 30 March, 1971. Judgment was delivered on 13 April 1971. The Supreme Court said at page 166: “…we are driven to the inescapable conclusion that the learned trial Judge, by the time he was able to prepare his judgment, had lost all the impressions which the opportunities of a court could afford.” In Awobiyi & Sons v Igbalaiye Brothers (1965) 1 All N.L.R. 163, the lapse of time was between 21 September when evidence commenced and 7 November of the same year when judgment was delivered.
Brett, J.S.C., delivering the judgment of the Supreme Court said at page 166:
“During these intervals the Magistrate must have had to direct his mind to numerous other cases, and in such circumstances he must be regarded as having lost much of the advantage which he might otherwise be supposed to have derived from seeing and hearing the witnesses, so that an appeal court is in almost as good a position as he is to form an opinion of their reliability.”
The Supreme Court had occasion to consider a case where hearing commenced on 20th May, 1971 and closed on 19th July, 1973 with several adjournments in between. Counsel addressed court in July and August, 1973 and judgment was delivered on 30 November, 1974. This was the case of Ekeri v. Kimisede (1976) 9 & 10 S.C. 61. The Supreme Court referred to the two cases earlier mentioned above and said at page 74:
“The delay in the case in hand exceeded by far the lapses of time in the afore-mentioned cases. We think therefore, that this is a proper case to interfere with the findings of facts by the learned trial Judge. Having regard to the complexity of the case the number of the witnesses and the prolix nature of their evidence, the only proper order to make is to send the case back for retrial.”
The case of R. Ariori & Ors. v Muraino B. O. Elemo & Ors. (1983) 1 S.C. 13 is of particular curiousity. The action was filed at the High Court on 15th October, 1960. The case was part-heard on 18 November, 1964. It started de novo before another Judge on 1st March, 1972. Evidence was concluded on 3rd July, 1974. Counsel addressed court from 12-18 July, 1974. Judgment was delivered on 3 October, 1975. Appeal in the case eventually got to the Supreme Court. It was there decided that the case be sent back for retrial. Obaseki, J.S.C., said at page 24 as to what is understood by a fair hearing within a reasonable time under the Constitution:
“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. ‘Reasonable time’ must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done.”
He then added at pages 27-28 the consequences of delaying a case unreasonably before judgment:
“The reasonable time for the consideration and delivery by the court of the judgment depends only on the time an active, healthy and mentally alert Judge takes to read and consider the evidence and write his judgment with full and complete consciousness of all the impressions of witnesses at the trial. A period of time which dims or loses the memory of impressions of the witnesses is certainly too long and is unreasonable. Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage of justice, contravenes the fair trial provision of our Constitution and vitiates the whole proceedings.”
It is of course possible that certain cases may not at all rest on impression of witnesses. It may be a straight question of facts and figures, or even standing on their own will turn on a careful reading of the record or documents. In that situation delay may not necessarily occasion a miscarriage of justice as a result of the quality of the decision. It may do so, however, either because the decision has virtually been overtaken by events or the delay has rendered, it substantially diminished in its effect. That is not the sort of complaint. In the present case regarding the delay. It is about the injustice occasioned by a trial Judge losing his impression of the case and therefore giving judgment that cannot be supported. The facts had become a bit too distant for him to have a clear impression of them. It will not be the same as reading the record and studying the documents while the facts are ready to mind as when they are already so dim that the mind is obfuscated.
I think the learned Judge in this case, from whatever cause, has not shown that he still firmly grasped the essential facts and had a proper perception of the true nature of the case at the time he prepared his judgment. He skipped many vital issues and based his judgment on very doubtful facts. Where vital issues are left unappraised by the trial court and this has led to inconclusive review of the evidence, or put in another way, where the trial court failed to resolve vital conflicting evidence on material issues which an appellate court cannot resolve, a retrial is the proper order to make: see Okpiri v. Jonah (1961) 1 All N.L.R. 102; Okeowo v Migliore (1979) 11 S.C. 138; Oke v Eke (1982) 12 S.C. 218; Adeyemo v Arokopo (1988) 2 N.W.L.R. (Pt.79) 703 S.C.
I am satisfied that in all the circumstances this is a case in which a retrial will ensure justice to both parties. This appeal succeeds and is allowed. The judgment of the court below together with the order for costs is hereby set aside. It is ordered that the case be remitted to the Anambra State High Court for a retrial. I assess costs in this court at N750.00 in favour of the appellants.
Other Citations: (1989) LCN/0068(CA)
