Cypiacus Nnadozie & Ors. V. Nze Ogbunelu Mbagwub (2008)
LAWGLOBAL HUB Lead Judgment Report
TABAI, J.S.C
This suit was initiated at the Customary Court of Imo State holden at Nnenasa, Isu Local Government Area of Imo State on or about the 9/6/92. The plaintiff therein is the Respondent in this appeal and shall herein after be simply referred to as the respondent.While the defendants therein are the appellants herein and shall herein after be simply referred to as the appellants.The respondent sued for himself and as representing the Mbagwu family of Umuduru Ekwe Isu Local Government Area.The substance of the claim was for a declaration that he and his Mbagwu family were entitled to the Customary Right of Occupancy over the land in dispute. He also claimed for perpetual injunction and N1,000.00 damages for trespass.
The trial involved the testimony of a number of witnesses from both parties. The Court also visited the locus in quo. By its judgment on the 30/1/95 the trial Customary Court allowed the claim and granted the declaration and injunction sought and awarded N500.00 costs against the appellants.
At the trial Customary Court the main issue which fell for determination was whether the appellants’ holding of the land in dispute was by reason of a customary pledge and which therefore entitled the respondent to its redemption. On this question of whether there was any customary pledge the Respondent was at pains to prove that by a mutual agreement the parties made recourse to and consulted the Chukwu Oracle which proclaimed in favour of the respondent. The appellants vehemently denied the alleged recourse to and proclamation by the Chukwu Oracle. The trial Customary Court accepted the respondent’s evidence of the parties’ recourse to the Chukwu Oracle and which indeed formed the kernel of its decision.
The appellants were aggrieved by the said decision and appealed to the Customary Court of Appeal. By its judgment on the 9th of July 1996 the appeal was allowed. The judgment of the trial Customary Court was declared null and void, set aside and a retrial ordered.
Still not satisfied, the appellants went on appeal to the Court of Appeal. The appeal was dismissed. This was in the judgment on the 18th September, 2001.
The appellants are still aggrieved and have come on appeal to this Court. The parties, through their counsel filed and exchanged their briefs of argument. The appellants’ brief filed on the 2/4/03 was prepared by Livy Uzoukwu SAN. That of the respondent filed on the 15/1/04 was prepared by C.A.B. Aparanta & Co.
In the appellants’ brief Livy Uzoukwu SAN formulated three issues for determination which he couched as follows:-
(1) Whether the Court of Appeal misconceived the respective cases of the parties
(2) Whether the Court of Appeal was right in determining the appeal based on issues raised suo motu by it and in respect of which parties did not address it.
(3) Whether the order of retrial made by the Court of Appeal was in law right.
On his part C.A.B. Akparanta SAN identified only one Issue for determination.The issue is:-
“whether the court below was right in confirming and affirming the judgment of the Customary Court of Appeal which set aside the judgment of the Customary Court of first instance given in favour of the Plaintiff/Respondent and instead ordered a retrial of the substantive suit at the Customary Court of first instance ”
In the Course of his submissions Learned Senior Counsel for the respondent proffered arguments in response to each of the appellants’ three issues.
In his argument learned counsel for the appellants made references to portions of the judgment of the Court of Appeal and submitted that there was a misconception of the cases of both the appellants and respondent. Having pleaded pledge, he argued, the respondent had impliedly admitted the appellants’ possession of the parcels of land in dispute and had the duty to prove the pledge which he failed to establish. Learned Senior Counsel also referred to the conclusion of the Court below “that the appellants obtained from the Customary Court of Appeal exactly what they asked for” and argued that the finding showed also a misconception of the appellants’ case and thus perverse. The misconception of both cases, it was argued, occasioned a miscarriage of justice.
Under the appellants’ issue two, Learned Senior Counsel referred to the reasoning of the Court below that the respondent did not go to the trial court to prove anew that there had indeed been a pledge and argued that the respondent indeed alleged pledge but failed to prove it. He referred also to the finding by the Court below that the appellants got from the Customary Court of Appeal exactly what they asked for and submitted that the two issues were raised suo motu by the Court and had a duty to hear the parties before giving its decision based thereon. For this submission he relied on UDOGU v EGWUATU (1994) 3 NWLR (Part 330) 120; CARRlBEAN TRADING AND FIDELITY CORPORATION v U.N.N.P.C. (1992) 7 N.W.L.R (Part 252) 161. Learned Senior Counsel for the Appellants further submitted that the Court below read into the record what is not there. Under the appellants’ third issue learned Senior Counsel repeated in greater details the arguments in issues one and two i.e.that the respondent failed to prove the alleged pledge and that the proper order is one for a dismissal of the case instead of an order of retrial. He urged finally that the appeal be allowed and the claim of the respondent dismissed.
Chief C.A.B. Akaranta SAN for the Respondent argued as follows: He reiterated the principle that proceedings in Customary Courts are not bound by technical rules and the exactitude used in common law courts and that appellate courts have a duty therefore to look at the claim and evidence to determine the real issues in controversy between the parties. In support of this principle, he cited E.F.I. v ENYINFUL (1954) 14 WACA 424 and EKPA & ORS v UTONG & ORS (1991) 6 NWLR (Part 197) 258 at 276 and 278. He referred to the writ of summons and the evidence led and contended, as found by the Court of Appeal, that the real issues in controversy before the trial Customary Court were whether indeed the Chukwu Oracle was consulted and if so whether the oracle declared in favour of the Plaintiff/Respondent. It was argued that recourse to the Chukwu Oracle was proscribed by law and therefore that the trial Customary Court’s judgment based on the declaration by Chukwu Oracle was null and void. It was the submission of Learned Senior Counsel that the order of retrial was the logical and consequential order following the nullification voiding and setting aside of the judgment. In conclusion he urged that the appeal be dismissed.
I have given due consideration to the facts of the case, the decisions of the trial Customary Court, the Customary Court of Appeal, the Court of Appeal and the submission of learned Senior Counsel for the parties. What appears to be the crucial question is whether, having regard to the peculiar facts and circumstances of this case the order of retrial is the most appropriate. This is the all pervading issue and the whole appeal is dependent on its resolution.
This leads to a consideration of principles governing an order of retrial, the locus classicus on the point being YESUFU ABODUNDU & ORS v THE QUEEN (1959) SCLR 162, In that case the following guiding principles in deciding an order of retrial were laid down:-
(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court is unable to say that there has been no miscarriage of justice.
(b) That, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant.
(c) That there are no special circumstances as would render it oppressive to put the appellant on trial a second time.
(d) That the offence or offences of which the appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the appellant are not merely trivial, and
(e) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
Still on the guiding principles, the Federal Supreme Court per Abbott FJ, at page 166 said:
“In formulating these principles we do not regard ourselves as deciding any question of law or as doing more than to lay down the lines on which we propose to exercise a discretionary power. It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles or to modify those we have formulated in this judgment. We wish to make it clear that the court will be free to do this without infringing the doctrine of judicial precedent. ”
The above shows that the five guiding principles formulated above on order of retrial are not decisions laying down legal principles binding on lower courts to follow, since the decision whether or not to order a retrial in a given case is discretionary depending on the peculiar facts and circumstances of each case. And since the decision so to order is the result of the Appellate court’s exercise of its discretion, no one decision is a binding precedent on subsequent decisions. It follows therefore that the five principles formulated in ABODUNDU’s case are not exhaustive. On this see OKODUWA v THE STATE (1988) 2 NWLR (Part 76) 333. Thus it has been settled that where appraisal and evaluation of evidence on vital issues has been left undetermined by the trial court and the appeal court is not in a position to adequately embark upon the evaluation from the printed record the proper order to make is one for a retrial. See OLATUNJI v ADISA (1995) 2 NWLR (Part 376) 107; CHIEF ASUQUO OKO & ORS v CHIEF JAMES NTUKIDEM & ORS (1993) 2 NWLR (Part 274) 124. Where however it is manifest from the record that the plaintiffs case has failed in toto and there is no manifest irregularity of a substantial nature, a retrial order which will be tantamount to giving the Plaintiff another bite at the cherry ought not to be made. See ELIAS v DISU (1962) 1 SCNLR 361; NATIONAL BANK OF NIGERIA LTD v P.B. OLATUNDE & CO. NIG. LTD (1994) 3 NWLR (Part 334) 512 at 533, ABILAWON AYISA v OLAOYE AKANJI & ORS (1995) 7 NWLR (part 406) 129 OKEOWO v MIGLIORE (1979) 11 SC 138; AWOTE v OWODUNNI (1987) 2 NWLR (Part 57) 366; SANUSI v AMEYOGUN (1992) 4 NWLR (Part 237) 527.
Now on the question of whether the order of retrial is the most appropriate in the circumstances of this case, let us examine the character of evidence and the procedure adopted by the trial Customary Court in the course of its judgment.
The judgment itself is at pages 6I-72 of the record. From page 61 line 29 to page 62 line 26 the trial court gave a summary of the case of the Plaintiff. That summary represents the legal evidence of the Plaintiff in the case. However from page 62 lines 26 to page 64 of the record the Court veered into the controversial issue of the parties’ recourse to the Chukwu Oracle which, it thought, was fundamental to the proper determination of the case. The court came to the conclusion that the Plaintiff and his four witnesses were consistent on this issue of visit to the Chukwu Oracle. The Court reasoned and found as follows:
“Even though they told their stories of the dispute between the Plaintiff and Defendants from various perspectives, they were in perfect agreement on the following fundamental facts:
(1) That the matter was brought before Chief Osuchukwu Nwadike where the question of “chukwu” trip was decided upon;
(2) That the matter went to “‘obi-Ezi-Okwu” association of Ekwe where the issue of going to
chukwu to divine the ownership of the of the land was ratified;
(3) That both the Plaintiff and the defendants agreed before the entire assembly of Umuduru Ekwe people to accept the outcome of the chukwu trip final and to abide by it;
(4) That all parties concerned sent their respective representatives to chukwu and that the chukwu trip was actually undertaken in the interest of justice and fair play;
(5) That the outcome of the chukwu trip was announced to a crowded assembly of Umuduru Ekwe people at their village square in the presence of the plaintiff and the defendants and all participants in the chukwu trip;
(6) That the “Chukwu” declared the plaintiff i.e. Mbagu family as the rightful owners of the land in dispute and ordered the defendants to release the land to them. That the proceeds from the Iroko tree sold was handed over to the plaintiff as the owner of the land.”
At page 67 lines 5-7 of the record the trial Customary Court made some reference to the submission of learned counsel for the defence to the effect that the Plaintiff failed to discharge the onus on him to prove the alleged pledge which in my view was a powerful submission. Surprisingly the trial Customary Court reacted at page 67 lines 8-10 in the following terms:
” Going through the plaintiff’s particulars of claims and his evidence one can observe that the Plaintiff rested his case on the validity of the trip to “Chukwu Oracle”
And at the concluding part of its judgment the trial Customary Court said:
“Having thus evaluated the casefor the plaintiff and that for the defendants what flOW remains is the question; is tile decision of tile Chukwu Oracle binding on tile Defendants The Defendants like the Plaintiff vowed publicly before the Umuduru Ekwe people before the chukwu trip was undertaken to abide by the outcome of the declaration of chukwu oracle as final solution as to the ownership of the land in dispute. The Court therefore holds that the Defendants are bound by the “chukwu” oracle decision.The Court believes the Plaintiff and his witnesses as witnesses of truth in the testimony on the chukwu trip… ”
It is clear from the above that the trial customary court was mainly pre-occupied with ascertaining whether or not the parties had, by agreement, consulted the chukwu oracle and the “decision” of the said oracle. The court believed the evidence of the plaintiff and his witnesses that the parties by agreement opted to and consult the chukwu oracle which declared the land to be that of the plaintiff and held the defendants/appellants bound by the chukwu decision. Although the trial customary court embarked upon some appraisal of the legal evidence presented, it nevertheless completely disregarded that evidence and adopted, as it were, the so called decision of “chukwu oracle”
Both sides agree that the procedure was wrong. The Customary Court of Appeal, relying on the prohibition in section 207(2) of Witchcraft and Juju Orders In Council and Section 210(d) of the Criminal Code described the procedure as illegal, nullified the judgment and ordered retrial. The Court of Appeal endorsed the nullification and order of retrial. The pith of the submissions of learned Senior Counsel for the appellants is that on the printed record the plaintiff/respondent failed to prove the alleged pledge and that in the circumstances the proper order should be one for the dismissal of the claim instead of an order for retrial. Earlier at the trial Customary Court learned counsel for the defendants/appellants proffered submissions to the effect that the plaintiff/respondent failed to discharge the burden of proving the alleged pledge. See page 54 of the record. And as I stated earlier the trial customary court noted this submission at page 67 of the record.
It is clear that the trial customary court failed totally to evaluate the legal evidence against the background of what I consider to be the powerful submission of defence/appellants’ counsel. I have restated above some guiding principles for an appellate court in the exercise of its discretion to make an order of retrial. In the face of this total failure of evaluation of the legal evidence by the trial Customary Court was the Customary Court of Appeal right to order a retrial
I am not unmindful of the principle that where a Plaintiff fails totally to establish his case and there is no manifest irregularity committed by the trial court, a retrial order ought not to be made as such an order will amount to giving the plaintiff another opportunity to prove his case. In this case however the irregularity committed by the trial customary court was substantial. The entire legal evidence before the court on which the dispute would have been determined was disregarded. The contention of learned Senior Counsel for the defendants/appellants is that the two appellate courts below and indeed this Court ought to reevaluate the evidence on the printed record and dismiss the claim. Attractive as the submission is, it failed to take cognisance of the character of the legal evidence on the printed record. The entire evidence is oral, there being no documentary evidence. It is such evidence that may necessarily involve demeanour and the determination of credibility of witnesses. Questions of demeanour and the determination of the credibility of witnesses are exclusively preserved for the trial Court. An appellate court, not having the privilege of watching and hearing the witnesses testify is, by reason of that handicap, not in a position to determine the credibility of witnesses. The result is that the two appellate courts below and indeed this Court are ill equipped to determine the credibility of witnesses. That function belongs properly to the trial customary court.
Considering all the facts and circumstances of this case, I am firmly of the view that there are sufficient materials for the discretionary order of retrial. Further more, since the discretion as to whether or not to order a retrial in this case is exclusively that of the Customary of Court of Appeal both the court below and this Court would not ordinarily interfere. And so neither the Court of Appeal nor this Court can interfere with that court’s exercise of its discretion unless there is good cause so to do. This is the principle in NATIONAL BANK OF NIGERIA LTD v P.B. OLATUNDE & CO (NIG.) LTD (1994) 3 NWLR (Part 334) 512 at 526; IMONIKHE v A.G. BENDEL STATE (1992) 6 NWLR (Part 248) 396 at 408 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 NWLR (Part 1) 156. In this case there is no manifest good cause for such an interference.
On the whole I resolve this all pervading issue against the appellant. The appeal fails and is accordingly dismissed.
I assess the costs of this appeal at N10,000.00 in favour of the respondent.
SC.249/2002
