Nyawen v Badon and Others (CA/YL/82/2014)[2016] NGCA 9 (29 June 2016) (CA/YL/82/2014) [2016] NGCA 9 (28 June 2016);

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  • Nyawen v Badon and Others (CA/YL/82/2014)[2016] NGCA 9 (29 June 2016) (CA/YL/82/2014) [2016] NGCA 9 (28 June 2016);

Headnote and Holding:

The matter arose from a decision on a dispute about traditional ownership of land between the appellant or the respondent’s family in favour of the respondents. 

As the trial court had found in favour of the respondent, the key question was whether the trial court was correct in its findings. The court first noted the trial court’s failure to fully address all issues necessary for determining a declaration of title before making a comment on the judgment’s failure to appraise and evaluate the evidence presented to it. It asserted that it is a legal requirement for a court to consider and determine all issues brought before it otherwise the judgment would be flawed and could amount to a miscarriage of justice and breach of fair hearing. The court thus reasoned that the total dearth of findings on any of the substantial issues of facts and law by the trial court rendered its judgment a nullity. Hence the trial court’s judgment was incorrect.

Further, the court decried the trial court’s failure to deal with salient issues that included evidence of traditional history, inheritance and length of possession as an abdication of its duties. On whether the court could remedy this, it noted that since these depended heavily on credibility of witnesses, would be handicapped to make findings to resolve the dispute. The court thus set aside the judgment of the trial court and remitted the matter to the High Court for de novo hearing. 

 
 
In the Court of Appeal
Holden at Yola

Between

Appellant

YOHANNA NYAWEN

and

Respondent

1.    JAURO MAGO BADON
2.    TITUS BADON
3.    MRS. WASEN CLETUS VULAPA
(Guadian ad litem To Abba Cletus Vulapa)
(For themselves and on behalf of Lomba family).

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.

This is an Appeal against the Judgment of the High Court of Justice Taraba State sitting at Jalingo, delivered on the 2nd day of December, 2013 in suit number TRJS/42/2012, wherein the trial Court declared title to the land in dispute to the Respondents. The Appellant being dissatisfied with the Judgment sought and obtained the leave of this Court to file an Appeal. 

The pithy statement of the facts of the case is that, the Respondents, (as Plaintiffs before the trial Court), by a motion ex parte filed on 18-04-2012 sought the leave of Court to file an action in a representative capacity against the Defendant (now Appellant). Leave was duly granted on 04-06-2012, where after, the Plaintiffs took out a Writ of summons against the Appellant, (as Defendant) on 13th June, 2012 on 13th June, 2012. Therein, they claimed the following reliefs:

1.    “A DECLARATION that the Plaintiffs are entitled to a statutory right of occupancy in respect of the parcel of land lying and situate at Golong Village in Kona District, in Jalingo Local Government Area of Taraba State which is particularly boarded (sic) by the lands of the followings (sic); to the north is the land of Ifraimu Aji, to the South the land of Clement Maizo, to the east are Ifraimu Aji and Batare and to the west is Yohanna Nyawen.
2.    A DECLARATION that the purported sale of the piece of land described above or any part thereof by the Defendant to any person or group of persons, is illegal, null and void and of no effect whatsoever.
3.    A DECLARATION that the Defendant is a trespasser.
4.    An Order of injunction restraining the Defendant by himself or through him from further act of trespass over the land in dispute described in 1 above.
5.    The sum of five hundred thousand naira (N500, 000.00) as general damages for trespass.
6.    Cost of filling and prosecuting this suit.”

Parties filed and exchanged pleadings. Subsequently, the Plaintiffs sought and obtained the leave of Court to amend their Statement of claim, after which the matter proceeded to full trial. In proof of the claim, the Plaintiffs called four witnesses and tendered one exhibit, while the Defendant called four witnesses and tendered no exhibit.

In order to establish their claim of title to the land in dispute, both the Plaintiffs and the Defendant relied on traditional history. The trial Court, after considering the evidence on either side, found in favour of the Plaintiffs and declared title to the land in dispute to them. The Judgment of the Court was delivered on 2nd December, 2013. The Defendant aggrieved, filed this Appeal on the 18th June, 2016, wherein he complained on eight grounds.

When the Appeal was called up for hearing on the 12-04-16, D. O Ovoyenta Esq., learned Counsel for the Appellant, adopted and relied on the Appellant’s Brief of argument filed on 28-10-15 as the Appellant’s arguments in the Appeal. He prayed the Court to allow the appeal, set aside the Judgment of the trial Court and enter an order of dismissal of the Plaintiffs’ claim before the trial Court. In like vein, E.D. Kizito Esq., learned Counsel for the 1st-3rd Respondents, adopted and relied on the 1st-3rd Respondents’ Joint Brief of argument filed on 08-03-16 as the 1st-3rd Respondents’ arguments in the Appeal. He prayed the Court to dismiss the Appeal for lacking in merit and affirm the Judgment of the trial Court. 

In the respective Briefs of argument, whereas learned Counsel for the Appellant formulated four issues for determination from his eight Grounds of Appeal, the Respondent distilled three issues. The issues framed by the Appellant are as follows:

1.    Whether the trial Court was right when it declared title to the land in dispute to the Respondents and proceeded to issue an order of permanent injunction against the Appellant even though the Respondents did not discharge the onus of proof of the extent and boundaries of the land in dispute. (Grounds 1 and 7)
2.    Whether the trial Court was right in law when, after finding that the traditional history relied upon by the Respondents was contradictory and conflicting, yet proceeded to declare title to the Respondents based on the demeanor of witnesses. (Grounds 2 and 3)
3.    Whether the trial Court was right in declaring title to the Respondents when the evidence before it disclosed that the Appellant and his relatives are in possession and have exercised numerous acts of ownership on the land. (Grounds 4 and 6)
4.    Whether the trial Court’s finding that the facts averred in paragraphs 5, 12, 13, 15 and 17 of the Statement of claim were proved by the Respondents at the locus visit is not perverse. (Grounds 5 and 8) 

While the issues distilled by the Respondents are:
1.    Whether based on the evidence before the trial Court, the Plaintiffs (now Respondents) discharged the burden of proof in establishing the extent and boundaries of the land in dispute?” (Grounds 1 and 7).
2.    Whether the Appellant/Defendant was in possession and exercised acts of possession over the land in dispute?” (Grounds 4 and 6)
3.    Whether by the balance of probabilities, the trial Court was right to have declared title to the land in dispute in favour of the Plaintiffs (now Respondents)?” (Grounds 2, 3, 5 and 8).

In respect of issue one of the Appellant’s issues, learned Counsel submits that the Respondents did not prove the exact boundaries and extent of the land they claimed, more so when the evidence adduced in respect thereof was contradictory and unreliable. On issue two, he submits that the traditional history relied on by the Respondents is contradictory, and that the trial Court ought to have dismissed the Respondents’ case. It was also submitted that the demeanor of witnesses cannot be relied upon in declaring title to land where the traditional history relied upon was not proved. On issue three, Counsel submits that the Respondents admitted that the land in dispute is in the possession of the Appellant and that same belongs to the appellant. Therefore, the trial Court ought to have given Judgment in favour of the Appellant, as facts admitted need no further proof. Finally, on issue four, it is submitted that the finding of the trial Court to the effect that the averments in paragraphs 5, 12, 13, 15 and 17 of the Amended Statement of claim were proved at the locus by the Respondents, is perverse. He urged the Court to allow the Appeal, set aside the Judgment of the trial Court and dismiss the Plaintiff’s claim before the trial Court.

In respect of the three issues distilled by the Respondents, learned Counsel for the Respondents submits that the Plaintiffs, by their pleadings and evidence discharged the onus of establishing the identity, extent and boundary of the land in dispute. He contends that parties are in agreement and not mistaken as to the true identity of the land in dispute. The Respondents were in exclusive possession of the land in dispute, and they proved that their title to the land is better than that of the Appellant. The trial Court faced with the competing traditional histories of the Appellant and the Respondents, determined the truth of both histories on the balance of probabilities that either of them could be true, and went ahead to find in favour of the history relied on by the Respondents to be more probable. Counsel urged the Court to dismiss the Appeal as lacking in merit and affirm the Judgment of the lower Court.  

Findings:

The issue of the traditional ownership of the land by either the family of the Respondents or that of the Appellant was the pith of the matter at the lower Court. The Respondents, as Plaintiffs, laid claim to the piece of land situate at Golong, also referred to as Gullong by the Appellant in his pleadings. They sought for a declaration of title in respect of the land, an order of injunction and damages for trespass. Parties clearly joined issues in their pleadings in respect of the identity of the land. Even though the Defendant (Appellant) appeared to know the land being claimed which harbored their various shrines, the dimensions in terms of the boundary descriptions given by the opposing parties, differed. This therefore put the identity of the land in issue in terms of the extent of the boundaries of same. Secondly, both parties claimed ownership of the land through their opposing traditional histories and inheritance. Thirdly, in addition to traditional history, the Appellant in his defence to the claim also laid claim to long possession.    

Surprisingly, however, the learned trial Judge abandoned all the issues which he ought to have considered in a claim of this nature. It is settled law that for a declaration of title to land to be granted, a party is required to prove the ownership of the land in one of the five ways set down by a plethora of authorities. Secondly, the exact extent of the land must be proved where the identity of land is in dispute. While parties, on their part, offered ample evidence on these important issues and, upon the application of Counsel, the lower Court even moved to the land in dispute to visit and to see for itself, the learned trial Judge made no effort to appraise and evaluate the evidence before him before arriving at his findings. There are many unanswered questions as to the identity of the land, the veracity of the traditional evidence of both the Respondents and the

Appellants, and the related issues of devolution of title, recent possession, long possession, trespass, etc. This has persuaded me and I am convinced that this judgment cannot be allowed to stand. The reasons for this are not far-fetched.

At the close of trial and the adoption of the written final address of learned Counsel for the as Plaintiffs (now Respondents), the Defendant’s (now Appellant’s) Counsel having failed to file any final address, the learned trial Judge, after reviewing the evidence offered through the eight witnesses, made its findings in all of ‘one and half pages’ of the Judgment inter alia in the following terms (at page 151 of the printed Record of proceedings):

“As the pleadings of the parties respectively show, against each other, the traditional histories of the roots of title by the respective parties differ from each other and are diverse and conflicting respectively.

However, relying on the performance of the witnesses of the parties in the witness box, the performances of the witness (sic) of the witnesses called by the plaintiffs by far score convincingly and rightly than the witnesses called by the defendant. This called (sic) be attributable to the manner of pleadings of the defendant as contrasted to the pleadings of the plaintiffs were presented the story of the plaintiffs case appear quite simplified. Direct positive and straight forward. On the contrary the story of the case of the defendant appear confusing and inconsistent. The DW1 and the defendant and most especially the DW3 were turned into acarricatures (sic) o themselves during their cross-examinations. The defence witnesses were lacking in confidence and therefore droned of convincing. Although after. The hearing o evidence, the case of the plaintiffs appear more probably than that of the defendant. This court stile accepted to visit the locus in quo as requested to inspec the land.

At the locus the facts pleaded by the plaintiffs in their pleadings, particularly the averments in paragraphs 5, 12, 13, 15 and 17 worth cogently, materially positively proven. On the contrary the defendant was unable to do so equally.
On the believe of probabilities therefore, the case of the plaintiff out weight (sic) the defendants and therefore judgment must be entered for the plaintiffs in this case.” 

With all due respect, the Judgment is appalling and abhorrent in its absolute failure to appraise and evaluate the evidence presented before it and make findings on the issues placed before it for resolution. However, worse still and more troubling is the trial Court’s exclusive dependence on the demeanor of the witnesses to determine the entire claim. It based its findings on the “performance of the witnesses in the witness box; and relying on the performances of the… witnesses called by the plaintiffs by far score (sic) convincingly and rightly than the witnesses called by the defendant…”, as if he was reviewing and critiquing the performances of actors/artistes in  a concert. Shocking!

It is the law that in any judgment of a court, (which word includes ruling, and is inclusive of all decisions of a court), all issues placed before a court must be considered and determined. A deliberate failure to do so by a court has been characterized as a failure to perform its statutory duty. The law is settled that a court is at all times required to consider all issues and pronounce on them, save in the clearest of cases. This Court, as well as the Supreme Court has, in a surfeit of cases, drawn the attention of courts below to the undesirability of failing to do so, and frowned at the failure of lower courts to decide all issues placed before them. When a court fails to resolve even one vital issue, it vitiates a Judgment. Thus, a Judgment is flawed, sometimes fatally, if a vital issue in the case is left unresolved. Where a court defaults in this duty, an appeal is sustainable. The authorities on this are legion. However, reference to a few will suffice. See: Akibu V Oduntan (2000) 7 SCNJ 189 @ 224; State V Ajie (2000) 7 SCNJ 1 @ 10; Owodunni V Registered Trustees of Celestial Church of Christ (2000) 6 SCNJ 399; Agu V Nnadi (2002) 12 SCNJ 238. 

In Brawal Shipping (Nig) Ltd V Onwadike Co. Ltd (2000) 6 SCNJ 508 @ 512, 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… By failing to consider same at all naturally leads to a miscarriage of justice as well as constituting a breach of the Appellant’s right of fair hearing.” 
See also Owodunni V Registered Trustees of Celestial Church of Christ (2000) 6 SCNJ 299 at 426-427; AG Leventis Nigeria Ltd V Akpu (2007) 6 SCNJ 242. 

Again, in Ovunmo V Woko (2011) 6 SCNJ 124 at page 136-137, Chukwuma-Eneh, JSC, held as follows:

“…what must be recognized as settled law is the duty to pronounce Judgment on all issues placed before the judge for resolution… 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 a fair hearing. See Dawodu V National Population Commission (2000) 6 WRN 116 at 118.”

Yet again, in the case of Afro continental Nig Ltd V Cooperative Association of Professionals Incorporated (2003) 5 NWLR (Pt. 813) 330 at 317 -138, the Supreme Court per Mohammed, JSC, held as follows:
“It is settled law and mandatory that a court must make a decision and pronounce on every application which is before it and failure to do so is a breach of fair hearing… All proceedings which followed such a breach will be a nullity… I therefore agree with the submission of learned Counsel for the Appellants that the failure of the learned trial Judge to determine the motion filed by the Appellants challenging the jurisdiction of his court is a fundamental breach. It has rendered the ruling which he subsequently delivered in favour of the Respondent a nullity.” (Emphasis supplied).

I am therefore bound to find, and I do so find, that the total dearth of findings on any of the substantial issues of facts and law thrown up by the claim seeking a declaration of title, has rendered the Judgment of the trial Court a nullity.

This leads me to a consideration of the principles governing an order of retrial, the locus classicus on the point being Yesufu Abodunde 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 of retrial would occasion a greater miscarriage of justice than to grant it.

The Supreme Court has held that these five guiding principles are exactly what they are stated to be, ‘guiding’ and not exhaustive, 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. Also, that since the decision to so order is the result of the appellate court’s exercise of its discretion, no one is a binding precedent on subsequent decisions. See Okoduwa V The State (1988) 2 NWLR (Pt. 76) 333. Thus, it is settled that where the 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. Where it is established before an appellate court that vital issues which depend on the appraisal and evaluation of evidence are left undetermined, the proper course of action for the Court to take is to make an order for retrial, for such has occasioned a miscarriage of justice. See Olatunji V Adisa (1995) 2 NWLR (Pt. 376) 107; Oko V Ntukidem (1993) 2 NWLR (Pt. 274) 124; & Total (Nigeria) Ltd V Nwako (1978) LPELR-3260(SC) 1 at 17-18. 

Such irregularity which will compel an order of retrial could be where, if the trial Judge failed in his primary duty in the evaluation of evidence to make findings of fact on the issue or issues joined on the pleadings material for reaching just a decision, and it is not such evidence upon which an appellate court can itself make such findings of fact, the Court of Appeal will be perfectly justified for that reason to order a retrial.  See Obi V Mbionwu (2002) LPELR-2164(SC) 1 at 23-24; Duru V Onwumelu (2001) LPELR-SC.142/1998 1 at 28; (2001) 18 NWLR (Pt. 746) 672, per Uwaifo, JSC. 

Also, where a trial Judge fails to make a finding of fact on conflicting evidence adduced by the parties on an issue, (in the instant case, the conflicting evidence on traditional histories) the resolution of which is essential to the just decision of the case, the proper course to be taken by an Appeal Court is to order a retrial unless the circumstances of the case do not warrant a retrial. See Osolu V Osolu (2003) 111 NWLR (Pt. 832) 608; Kareem V UBN Ltd (1996) 5 NWLR (Pt. 451) 634. Onnoghen, JSC pronounced with finality on the issue in these terms in Mafimisebi V Ehuwa (2007) LPELR-1812(SC) 1 at 61 as follows:

“It is settled law that where a trial court failed in its primary duty of making findings of facts on issues joined in the pleadings and the evidence is such that an appellate court cannot make its findings and come to a decision on all relevant issues, an order of retrial is the proper order the appellate court should make.”

It has been reiterated in numerous cases that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial Judge. But where there is ample evidence and the trial Judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial Court to deal with the facts and to make proper findings. However, in a matter which turns on the credibility or reliability of the witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See Nnadozie V Mbagwu (2008) LPELR-SC.249/2002, page 1 at 14; SPDC Nig. Ltd V Cole (1978) LPELR-3051(SC) 1 at 15.

In the instant case, the entire legal evidence before the court on which the dispute could have been determined, was sloppily disregarded. But for the sole exhibit, (being a Record of proceedings of an Area Court decided between parties, different from those in the instant Appeal), the character of the legal evidence on the printed Record is oral. It is evidence of such a nature that may necessarily involve the demeanor and the determination of the credibility of witnesses. Questions of demeanor 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 this Court is ill-equipped to determine the credibility of witnesses. That function belongs exclusively to the trial High Court. 

The trial Court wittingly fell into the error of determining the serious question of the ownership of the land in dispute solely on the demeanor of the witnesses, and his belief in the credibility of the witnesses. The law and practice is that disputes should be resolved with reference to the evidence brought before a court by parties and not by any whimsical and capricious feelings and beliefs of the trial Judge. Consequently, I am of the firm view that the parties should go back and have the dispute between them resolved only on evidence brought forward as to the true ownership of the land in dispute and the application of the law to the facts.   

In land matters, as in this case, if a plaintiff fails to prove the root of his title, it is trite that his case stands dismissed in toto. In the instant case, evidence of traditional history, inheritance and long possession was led, but there is nothing on the Record to show that the evidence so led was considered or even given more than a passing glance by the trial Court. Would it then be right for this Court, faced with the facts of this case, to say that the Plaintiffs/Respondents failed to prove their case and therefore proceed to dismiss it, as canvassed by the Appellant while urging that their Appeal be allowed? I think not. There has been a fundamental error in law, in the sense that there was no evaluation of the evidence of traditional history, identity of the land, long possession, etc. I therefore hold that the failure of the Court below to pronounce on the issues raised in the claim before it vitiated its decision. 

In addition, as has been repeatedly found above, much as the lower Court heard extensive evidence on the case, it failed to take the next logical step, which was to pronounce on the issues thrown up by the parties. This amounts to a species of breach of the Appellant’s right to fair hearing on the case presented to the lower Court for adjudication. There is no gainsaying the fact that, ex facie the Judgment appealed against, the Court below failed to conclusively determine the issue placed before it. In Okonji V Njokanma (1999) 12 SCNJ 259, Achike, JSC at page 278 of the Report, pronounced thus: 

“The Appellant’s complaint of the mutedness of the lower Court on this apparently all important issue regarding Section 34 (1) of the Evidence Act is undoubtedly justified. They have justifiedly appealed to this Court on the same point. I am clearly of the opinion that the lower Court was under a duty to give ample consideration to and determine all issues (not hypothetical) placed before it. This is so because a judgment of a court of record must demonstrate a dispassionate consideration of all the issues canvassed by the parties and in turn show the result of such exercise.” (Emphasis supplied).  

See also Wilson V Oshin (2000) 6 SCNJ 371, where Karibi-Whyte, JSC, added his magisterial voice to this company of wise and astute Jurists to caution as follows: 

“A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a situation a fair minded objective observer will come to the conclusion that the hearing of the case has not been fair to the person affected. The principle of adjudication fundamental to the administration of justice is that the court is bound to consider every material aspect of a party’s case validly put before it… Where the issue is fundamental and critical to the determination of the case the contention of the appellants will be justified.” (Emphasis supplied).

The appellate Courts have therefore been consistent and uncompromising in holding that it is the duty of a court to decide and pronounce on all issues placed before it. The effect of a failure to discharge this duty results in setting aside the Judgment, where a miscarriage of justice is occasioned. See: Bamaiyi V State (2001) 4 SCNJ 103 at 113. Thus, having carefully examined the complaint of the Appellant in this matter, it is not in doubt that the apparent failure of the lower Court to evaluate the evidence adduced by the parties at the trial, must be resolved in favour of the Appellant. 

Consequently, it begs the question whether this failure to resolve the said issue is sufficient to vitiate the Judgment of the Court below. Fair hearing is a fundamental constitutional right as entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It has time and again been held that a 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. It is therefore against the backdrop of the foregoing, vis-à-vis and particularly on the issue of the denial of fair hearing as a fundamental right that the error of the lower Court in failing to consider and pronounce on the issues before it, has to be viewed.

Having thus found, what is the proper order for this Court to make in the circumstance? Here, I must particularly advert to the dictum of Ogundare, JSC, in the case of Oriawe V Okene (2002) 14 NWLR (Pt. 786) 156 at 182-183, (with which I am in unison), where he opined that the proper steps for an appellate court, (such as this), to take where the lower Court has failed to resolve a vital issue raised before it includes as follows: 
“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 witness would not arise… 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.”

Also, in Arisons Trading V Military Governor of Ogun State (2009) 6 SCNJ 141 at 160, the Supreme Court held thus in similar circumstances:

“It is the law that where there is a failure, a commission or omission by a trial Court in relation to an act which the trial court ought to do or refrain from doing, this Court is in as good a position as the trial Court to do or refrain from doing that act.”
Consequently, where a trial Court fails to make a finding on an issue duly joined by the parties on their pleadings in a case, an appellate court will order a retrial where the evidence/facts is/are of such a nature that it cannot make its own findings. See Dakipiri Odi V Harrison Iyala (2004) 4 SCNJ 35 at 55-56 per Niki Tobi, JSC (of blessed memory). However, on the authorities, unless the credibility and/or demeanour of witnesses is in issue, this Court is in as good a position as the lower Court in doing that which the lower Court failed to do. See Ewuosu V Fagbemi (2002) 4 SCNJ 330.

In the case under consideration, the learned trial Judge in delivering his Judgment, failed to consider at all, all the evidence before it. This is strongly deprecated. Thus, the proper order to make where an appellate court finds that a lower court failed to decide a vital and relevant issue is to order a re-hearing or a retrial, and not an outright grant or dismissal of the claim at the lower Court. Therefore, the justice of the case will be better served with an order of retrial. 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.   

On the whole therefore, I find merit in the Appeal. However, for the reasons set out above, I decline to exercise the power vested in this Court to determine the claim under Section 16 of the Court of Appeal Act LFN, 2004.
In the circumstances, the Appeal is meritorious and is accordingly allowed. The Judgment of the High Court of Justice Taraba State sitting at Jalingo delivered by Andetur, J., on 2nd day of December, 2013 in suit number TRJS/42/2012, between Jauro Mago Badon & 2 others V Yohanna Nyawan, is hereby set aside. It is further ORDERED that the case be remitted to the Chief Judge of Taraba State High Court for hearing de novo before another Judge, other than Andetur, J. No costs are awarded.

SAIDU TANKO HUSAINI
I agree.

BIOBELE ABRAHAM GEORGEWILL, JCA:
I have been afforded in advance a draft copy of the judgment just delivered by my lord, JUMMAI HANNATU SANKEY, JCA; and I am in complete agreement with the reasons and conclusions reached therein which I adopt as mine. I have nothing more to add. 
I too hold that the appeal has merit and ought to be allowed. Consequently, I too hereby allow the appeal, set aside the judgment of the court below and remit the  case to the Chief Judge of Taraba State for same to be assigned to another judge of the court below other than Andetur J., for retrial de - novo. I shall abide by the order as to no cost made in the lead judgment.?

Counsel

D. O Ovoyenta Esq. appears for the Appellant.
E.D. Kizito Esq. appears for the Respondents

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