Rethinking Trial De Novo In Nigeria: Law Reforms

By U. O. OKOCHA ESQ.[1]

1. INTRODUCTION

In reintroducing the concept, “trial de novo”, this author is
reminded of the fact that distinguished magnates in the legal
profession have forerun his quest by carrying on their backs the
wailings of a vast majority of persons over the issue of trial
de novo and its impact on affected litigants and mere
observers. To put in proper perspective, trial de novo
means “from the new”; it is a new trial on the entire case, that
is, on both questions of facts and issues of law, conducted as if
there had been no trial in the first instance.[2]
While we embark on an all-round discourse, it is submitted by the
author that the situation of unending trials across courts in
Nigeria is an institutionalized problem caused majorly by the three
arms of government – calling it a reckless omission or
deliberateness all points to the fact that the draftsmen and
interpreters of laws mostly define justice from an overfed point of
view.

In this article, we shall consider what leads to trial de
novo. We shall also look into the bottlenecks of trial de
novo, as a concept; there would be need to also address the
conflicts and recommend feasible alternatives or solutions. Bear in
mind that Superior Courts of Record will be the focus as we turn to
subsequent paragraphs.

2. TRIAL DE NOVO – LOOKING AT IT

As established, trial de novo means “afresh” or
“beginning again”. Under Nigerian Laws, Practice and Procedure, a
trial de novo comes into existence where a judge of a
court is either deceased, elevated, retired, transferred or removed
from his judicial office. The banal practice in Nigeria, following
the creation of any of the mentioned events, is for the head of
such court to reassign case files of the erstwhile judge to another
judge of the court who must try the case afresh notwithstanding the
stage of the trial. Looking at it, the mentioned events will
establish the fact that such judicial officer is no longer a member
of such court and it is the law that composition of judges is a
crucial factor in determining jurisdiction.[3]
However, from a constitutional standpoint, there are no express
provisions in the grundnorm that addresses or even mentions cause
and effect of elevation, transfer, death, retirement, etc. with
a trial de novo in view. It can be said that since the
Constitution vests law-making powers in the legislature, subsequent
statutes made by the legislature will be valid so long as not found
inconsistent with the Constitution.

Notwithstanding what has been said above concerning the
compulsory nature of the new judge in trying the case afresh,
Order 49 Rule 4 of the Federal High Court Rules
2009 makes provision for possibilities of part-heard
trials of the erstwhile Federal High Court judge and its
implication under law[4]. It reads:

Where a judge retires or is transferred
to another Division and having part-heard a cause or matter which
is being re-heard de novo by another
judge, the evidence already given before
the retired judge or the judge transferred out of the Division can
be read at the re-hearing without the witness who had given it
being recalled. But if the witness is dead or cannot be found, the
onus of establishing that the witness is dead or cannot be found,
shall lie on the party that wishes to use the
evidence. (Underlined words mine)

We would understand from the above provision that the Federal
High Court recognizes part-heard trials only in a situation of
retirement or transfer of the erstwhile judge. It does not extend
to death, removal or elevation of the judges. Also, regardless of
the retirement or transfer of the erstwhile judge who part-heard
the cause or matter, the trial will invariably start afresh though
there is such a possibility for the new judge to read out pieces of
evidence from the records of the erstwhile judge to the hearing of
the parties so as to confirm if parties are relying on same or
otherwise. A logical implication is that parties can choose not to
rely on past records and just align themselves with an entirely new
narration and evidence before the new trial judge. Instructive is
the case of NGIGE V OBI (2012) ALL FWLR (Pt. 617) 738 at
757-758 where it was held, inter alia, thus:

On hearing de novo, the Court hears the matter as a
Court of original and appellate jurisdiction. It means nothing
other than a new trial. This further means that
the Plaintiff is given another chance to re-litigate the same
matter or rather in a more general sense the parties are at liberty
to once more reframe their case and restructure it as each may deem
fit appropriate. (Sic) (Underlined words
mine)

Away from the mentioned events where trial de novo
often thrives, in the event that an appellate court is unable to
draw conclusions owing to a perverse judgment of the trial court, a
retrial order may be given which implies starting the suit
afresh[5]. However, appellate courts are often
reluctant to granting a retrial. They are often guided by certain
salient considerations such as: (1) whether the plaintiff has
established his case by raising the probabilities in his favour; or
(2) whether the order of retrial will enable the defendant to
improve his position during retrial to the prejudice of his
opponent; or (3) whether the litigation will be unnecessarily
prolonged; or (4) whether the proceedings are conducted by the
trial court largely in conformity with rules of evidence and
procedure; or (5) that there was no substantial irregularity in the
conduct of the case. Instructive is MAFIMISEBI V ENUWA
(2007) 2 NWLR (Pt. 1018) 385.

Before delving into some legal arguments surrounding the concept
(trial de novo), it should be observed that the Court of Appeal and
the Supreme Court are constitutionally fortified to deliver a valid
judgment notwithstanding the death, transfer, retirement, elevation
or removal of a justice as what counts is the majority decision
vide s. 294 (3) of the Constitution of the Federal Republic
of Nigeria 1999 (as amended) (later CFRN). Worthy of note
is that a justice in these appellate courts, who is in one of the
mentioned events, can have his opinion pronounced in open court by
the presiding justice during the delivery of judgment. In the event
where such justice was not in any of such events but absent for
other reasons while still a member of the court, the Constitution
allows his opinion to be read if reduced into writing vide
s. 294 (2) CFRN. Instructive is the case of
ANYAOKE V. ADI (1985) 4 SC 213 where it was held
that it was competent for one Justice to read his own judgment and
also the concurrent judgments; and to read the fact that other
Justices concurred to the judgment. It does not matter whether the
absent Justice is even dead. If he wrote his opinion or expressed
same orally before his death, another Justice can pronounce it.

3. LEGAL CONSIDERATIONS

There is often a battle for cases to move up from trial courts
to the Supreme Court especially because of the snail pace of the
justice delivery system. A look around reveals the steady growth of
arbitration and while it is not a bad idea for parties to consider
other forms of dispute resolution mechanisms as a matter of choice,
litigation should not be the sacrificial lamb on the ground that it
is impossible or impracticable to salvage the decay in trial
advocacy. This author has identified trial de novo as one
of the Egyptians many concerned Nigerians hope to see no more and
we shall swiftly see why.

Just so that ramblings are in proper perspective, it is not to
be canvassed here that trial de novo is bad for all
intents and purposes – by implication, this author advocates for a
further infringement on its usability to the extent that functional
justice prospers. The practice in most High Courts of Nigeria is
that a suit starts afresh once the erstwhile judge is transferred
to another division (as well as for other earlier mentioned events)
and if we think deeper as to the rationale, there will only be
little to imagine. In the minutest of its rationale, there is the
argument that the new trial judge might be more inclined to
rendering inadmissible already admitted documents. This worry
should be short-lived as the trial judge is in no way boxed into
contemplations of legal impossibilities like reviewing the decision
of the erstwhile learned trial judge; the judge can always expunge
documentary evidence from his record during judgment stage as a
mere marking of exhibits does not amount to proof of the case.

A decision to start a case afresh because of all mentioned
events above might not raise brows if the cause or matter is yet
part-heard. In this case, parties may not have suffered much time
loss as the case was still in its preliminaries. It is submitted
here that if the case has been part-heard, then it works hardship
on the litigants for the case to start afresh – the convenience of
the Bench cannot be placed on a higher pedestal at the expense of
ensuring that justice is seen to be done between litigants. As is
now common practice, a matter can remain refreshed like a Facebook
Page all because of quick successions of transfer, elevations and
demise of three to four judges handling an affected litigant’s case
whereas if we sincerely inquire within, we would reach similar
conclusions that it is not practically impossible for Judge
B to continue a part-heard trial heard by the erstwhile
Judge A upon a careful study of the records of the court.
It is pretentious to place overwhelming theories on a physical
inspection of demeanours of witnesses as paramount, when indeed
truths and prevarications can be found in the accounts penned by
the erstwhile judge.

One of the mentioned events that sure divided the legal
community was that of elevation of judges to higher courts while
there remained cases on the judges’ docket; the implication is that
the part-heard matter loses its life with every memory of it
definitely wiped out. This has been decided in a long line of
notorious cases such as OGBUNYINYA & ORS V OKUDO & ORS
(1979) NSCC 77; OUR LINE LTD V S.C.C. NIGERIA LTD & ORS (2009) 17
NWLR (Pt. 1170) 383 and the recent case of UDE
JONES UDEOGU V FRN & ORS SC.622C/2019 (unreported). UDE
JONES’ Case (supra) is known to most persons that followed
the turn of events involving Orji Uzor Kalu – wounds of which we
now treat quietly. In that case, the Supreme Court had the chance
to apply Ut Res Magis Valeat Quam Pereat the principle
that will give effect to s.396 (7) of the ACJA
2015 rather than defeat the legislative intention. The
Supreme Court gambled away the chance to qualify the outstretched
arms of trial de novo and relished to a pulp the fanciful
technical ratiocinations such as “he has been elevated thus not
a member of the erstwhile court”, “the Justice of the
Court of Appeal cannot give a fiat to the new elevated Justice as
it runs contrary to s. 1(2) (a) of the Federal High Court
Act 2004”, to mention a few. One thing that cannot be
rebutted easily is the fact that we cannot be more rational than
our sentiments and if the Supreme Court really wanted to give life
to s.396 (7) ACJA 2015, it could have done so
relying on the need to cater for the missing gaps in the
Constitution as regards elevation of judges. Problematic times,
really – trial de novo automatic once elevated and
trial de novo if the elevated Justice gets a fiat to
conclude part-heard matters.

On the issue of another judge delivering the judgment of an
erstwhile judge of that court, contemplating the mentioned events,
it is interesting that a trial de novo could still be
ordered on grounds that the judgment could not have been valid as
the erstwhile judge ceased to be a member of the court. Little hope
may have been set in motion following the decision of the Court of
Appeal in the case of AGF V ANPP & ORS (2003) 15 NWLR (Pt.
844) 600 at 658-659 where it was held that the omission in
the Constitution vide s. 294 (2) CFRN to provide
for the delivery of a judgment by another judge of the same court
was a mere lacuna. The Court relied on Ss. 21 and 23 of the
Federal High Court Act to arrive its decision. For ease of
reference, the said sections will be reproduced below:

21. 21. Where the Judge who shall preside over the
    sitting of the court is from any cause unable or fails to attend
    the same on the day appointed, and no other Judge is able to attend
    his stead, the court shall stand adjourned from day to day until a
    Judge shall attend or until the court shall be adjourned or closed
    by order under the hand of a Judge.
22. 23. Every proceeding in the court and all business
    arising thereat shall, so far as is practicable and convenient and
    subject to the provisions of any enactment or law be heard or
    disposed of by a single Judge, and all proceedings
    in an action subsequent to the hearing or trial, down to and
    including the final judgment or order shall, so far as is
    practicable and convenient, be taken before the Judge before whom
    the trial or hearing took place. (Underlined
    words mine)

The reliance on the practicability and convenience test in
ruling that another judge could deliver the judgment of the
erstwhile judge was sound and possible only because the Court was
swayed by its sentiments and the need to secure a value judgment –
laudable and dry behind the ears, definitely. Moreso, it could also
make for good logic if the practicability and convenience test be
extended to earlier mentioned events considering that s. 23
Federal High Court Act does not limit the test to delivery
of judgments – argued here is that if a judge is elevated,
transferred, deceased or removed, another judge of the court could
stand in just so that justice does not become delayed. It is good
that most laws of Courts have a similarly worded
s.23 but the reasonable fear is that a sound
argument could pop challenging the inheritance of the erstwhile
judge’s case files when he ceased to be a member of the court. In
fact, the entire gist in the later decided case instilled the fear
further in the case of NANA & ORS V NINGI & ORS (2018)
LPELR-46399 (CA) where it was held, inter alia, as
follows:

In the case of BAKULE V. TANEREWA (NIG.) LTD
(supra), it was held by this Court that decisions and orders made
by a Court in a matter which later starts de novo before another
Court of competent jurisdiction are not in existence and are
lifeless in the new trial.

4. RECOMMENDATIONS

It is submitted that the problem may not lie with the
Constitution, really – especially as cannons of interpretation are
always on standby to ensure statutes are brought in conformity with
public policy and convenience. If we must mitigate the hardship
caused by trial de novo, we should consider the following
key points:

Firstly, all Superior Courts of Record should have practice
directions regulating instances of the earlier mentioned events as
it is not expressly catered for in the Constitution and any statute
book. There should be incorporated into the practice directions the
provision that elevated judges could conclude part-heard trials;
also, a provision enabling another judge to inherit the part-heard
trials should be incorporated bearing in mind the practicability
and convenience test. The logic that an ‘elevation of a judge makes
for no jurisdiction’ should put in perspective the fact that it is
possible for an elevated judge not to be criticized for serving two
courts once it is seen that though he was appointed, he was yet to
either take the oath of allegiance or declare assets vide
s. 290 CFRN. The appointing authority should make
sure that the elevated judge be given a grace period to conclude
pending trials on his docket before resuming or functioning as a
Justice of a higher court – the time frame being a reasonable time.
This is even the practice in the United Kingdom as confirmed by
Queen’s Counsel resident in that jurisdiction. To be added here is
the fact that rather than practice directions, it could form as
statutory provisions to avoid future sound arguments on the weight
of a practice direction.

Secondly, a way to cure the mischief will be to amending
relevant provisions of the statutes regulating the Superior Courts
of Record such as the Federal High Court Act or other High Court
Laws of States. There would not have been need for the Court of
Appeal in AGF V ANPP (supra) to forcefully untie
itself from the shackles of the bad mammoth practice brought by
trial de novo, if s.23 of the ACT, for
instance, had a proviso incorporating instances of the mentioned
events with the ultimate conclusion that another judge of the High
Court could continue with the part-heard trials such that where the
case was even inherited before the erstwhile judge could deliver
judgment on the day reserved for same, another judge of the court
could do same. This in itself will forestall, in parts, the
occurrence of unending or prolonged litigation.

The third and final point would be to amend the Constitution and
clear the air ultimately as that will avoid or end the reign of
rigid judgments of the Supreme Court on this matter since it is
hardly the case that alters of technicalities are no more
worshipped. The call for an outright amendment to reflect the
mentioned events is put last because of the cumbersome procedure in
effecting an amendment of the Constitution. It is however hoped
that all arms of government, particularly the judiciary and their
fervent love for trial de novo, rethink this concept and
work towards dispensing justice to all and sundry remembering
always that Justice delayed is Justice denied.

[1] Ugochukwu Obed Okocha is a young disputes
resolution lawyer. He is the Head of Litigation and Advocacy
Department in EXPERTS IN LITIGATION AND ARBITRATION.

[2] See BLACK’S LAW DICTIONARY NINTH EDITION PAGES
1431 AND 1645; OMOSAYE V. STATE (2014) LPELR – 22059 (SC)

[3] As it is trite, jurisdiction is the life-wire of
adjudication: see ARIBISALA & ANOR V TLABI OGUNYEMI & ORS (2005) 6
NWLR (Pt. 921) 212 per Oguntade JSC.

[4] This inclusion is not found in the High Court
Rules of most states which has for provisions of transfer of cases
and consolidation only.

[5] On when order of retrial will be made, it has
been held in Okeowo v Migliore (1979) 11 SC
138 that where a trial court failed in its primary
duty of making findings of facts on issues joined on the pleadings,
and the evidence is such that an appellate court cannot make
findings and come to a decision on all relevant issues, an order of
retrial is the proper order the appellate court should make.

By U. O. OKOCHA ESQ.[1]

1. INTRODUCTION

In reintroducing the concept, “trial de novo”, this author is
reminded of the fact that distinguished magnates in the legal
profession have forerun his quest by carrying on their backs the
wailings of a vast majority of persons over the issue of trial
de novo and its impact on affected litigants and mere
observers. To put in proper perspective, trial de novo
means “from the new”; it is a new trial on the entire case, that
is, on both questions of facts and issues of law, conducted as if
there had been no trial in the first instance.[2]
While we embark on an all-round discourse, it is submitted by the
author that the situation of unending trials across courts in
Nigeria is an institutionalized problem caused majorly by the three
arms of government – calling it a reckless omission or
deliberateness all points to the fact that the draftsmen and
interpreters of laws mostly define justice from an overfed point of
view.

In this article, we shall consider what leads to trial de
novo. We shall also look into the bottlenecks of trial de
novo, as a concept; there would be need to also address the
conflicts and recommend feasible alternatives or solutions. Bear in
mind that Superior Courts of Record will be the focus as we turn to
subsequent paragraphs.

2. TRIAL DE NOVO – LOOKING AT IT

As established, trial de novo means “afresh” or
“beginning again”. Under Nigerian Laws, Practice and Procedure, a
trial de novo comes into existence where a judge of a
court is either deceased, elevated, retired, transferred or removed
from his judicial office. The banal practice in Nigeria, following
the creation of any of the mentioned events, is for the head of
such court to reassign case files of the erstwhile judge to another
judge of the court who must try the case afresh notwithstanding the
stage of the trial. Looking at it, the mentioned events will
establish the fact that such judicial officer is no longer a member
of such court and it is the law that composition of judges is a
crucial factor in determining jurisdiction.[3]
However, from a constitutional standpoint, there are no express
provisions in the grundnorm that addresses or even mentions cause
and effect of elevation, transfer, death, retirement, etc. with
a trial de novo in view. It can be said that since the
Constitution vests law-making powers in the legislature, subsequent
statutes made by the legislature will be valid so long as not found
inconsistent with the Constitution.

Notwithstanding what has been said above concerning the
compulsory nature of the new judge in trying the case afresh,
Order 49 Rule 4 of the Federal High Court Rules
2009 makes provision for possibilities of part-heard
trials of the erstwhile Federal High Court judge and its
implication under law[4]. It reads:

Where a judge retires or is transferred
to another Division and having part-heard a cause or matter which
is being re-heard de novo by another
judge, the evidence already given before
the retired judge or the judge transferred out of the Division can
be read at the re-hearing without the witness who had given it
being recalled. But if the witness is dead or cannot be found, the
onus of establishing that the witness is dead or cannot be found,
shall lie on the party that wishes to use the
evidence. (Underlined words mine)

We would understand from the above provision that the Federal
High Court recognizes part-heard trials only in a situation of
retirement or transfer of the erstwhile judge. It does not extend
to death, removal or elevation of the judges. Also, regardless of
the retirement or transfer of the erstwhile judge who part-heard
the cause or matter, the trial will invariably start afresh though
there is such a possibility for the new judge to read out pieces of
evidence from the records of the erstwhile judge to the hearing of
the parties so as to confirm if parties are relying on same or
otherwise. A logical implication is that parties can choose not to
rely on past records and just align themselves with an entirely new
narration and evidence before the new trial judge. Instructive is
the case of NGIGE V OBI (2012) ALL FWLR (Pt. 617) 738 at
757-758 where it was held, inter alia, thus:

On hearing de novo, the Court hears the matter as a
Court of original and appellate jurisdiction. It means nothing
other than a new trial. This further means that
the Plaintiff is given another chance to re-litigate the same
matter or rather in a more general sense the parties are at liberty
to once more reframe their case and restructure it as each may deem
fit appropriate. (Sic) (Underlined words
mine)

Away from the mentioned events where trial de novo
often thrives, in the event that an appellate court is unable to
draw conclusions owing to a perverse judgment of the trial court, a
retrial order may be given which implies starting the suit
afresh[5]. However, appellate courts are often
reluctant to granting a retrial. They are often guided by certain
salient considerations such as: (1) whether the plaintiff has
established his case by raising the probabilities in his favour; or
(2) whether the order of retrial will enable the defendant to
improve his position during retrial to the prejudice of his
opponent; or (3) whether the litigation will be unnecessarily
prolonged; or (4) whether the proceedings are conducted by the
trial court largely in conformity with rules of evidence and
procedure; or (5) that there was no substantial irregularity in the
conduct of the case. Instructive is MAFIMISEBI V ENUWA
(2007) 2 NWLR (Pt. 1018) 385.

Before delving into some legal arguments surrounding the concept
(trial de novo), it should be observed that the Court of Appeal and
the Supreme Court are constitutionally fortified to deliver a valid
judgment notwithstanding the death, transfer, retirement, elevation
or removal of a justice as what counts is the majority decision
vide s. 294 (3) of the Constitution of the Federal Republic
of Nigeria 1999 (as amended) (later CFRN). Worthy of note
is that a justice in these appellate courts, who is in one of the
mentioned events, can have his opinion pronounced in open court by
the presiding justice during the delivery of judgment. In the event
where such justice was not in any of such events but absent for
other reasons while still a member of the court, the Constitution
allows his opinion to be read if reduced into writing vide
s. 294 (2) CFRN. Instructive is the case of
ANYAOKE V. ADI (1985) 4 SC 213 where it was held
that it was competent for one Justice to read his own judgment and
also the concurrent judgments; and to read the fact that other
Justices concurred to the judgment. It does not matter whether the
absent Justice is even dead. If he wrote his opinion or expressed
same orally before his death, another Justice can pronounce it.

3. LEGAL CONSIDERATIONS

There is often a battle for cases to move up from trial courts
to the Supreme Court especially because of the snail pace of the
justice delivery system. A look around reveals the steady growth of
arbitration and while it is not a bad idea for parties to consider
other forms of dispute resolution mechanisms as a matter of choice,
litigation should not be the sacrificial lamb on the ground that it
is impossible or impracticable to salvage the decay in trial
advocacy. This author has identified trial de novo as one
of the Egyptians many concerned Nigerians hope to see no more and
we shall swiftly see why.

Just so that ramblings are in proper perspective, it is not to
be canvassed here that trial de novo is bad for all
intents and purposes – by implication, this author advocates for a
further infringement on its usability to the extent that functional
justice prospers. The practice in most High Courts of Nigeria is
that a suit starts afresh once the erstwhile judge is transferred
to another division (as well as for other earlier mentioned events)
and if we think deeper as to the rationale, there will only be
little to imagine. In the minutest of its rationale, there is the
argument that the new trial judge might be more inclined to
rendering inadmissible already admitted documents. This worry
should be short-lived as the trial judge is in no way boxed into
contemplations of legal impossibilities like reviewing the decision
of the erstwhile learned trial judge; the judge can always expunge
documentary evidence from his record during judgment stage as a
mere marking of exhibits does not amount to proof of the case.

A decision to start a case afresh because of all mentioned
events above might not raise brows if the cause or matter is yet
part-heard. In this case, parties may not have suffered much time
loss as the case was still in its preliminaries. It is submitted
here that if the case has been part-heard, then it works hardship
on the litigants for the case to start afresh – the convenience of
the Bench cannot be placed on a higher pedestal at the expense of
ensuring that justice is seen to be done between litigants. As is
now common practice, a matter can remain refreshed like a Facebook
Page all because of quick successions of transfer, elevations and
demise of three to four judges handling an affected litigant’s case
whereas if we sincerely inquire within, we would reach similar
conclusions that it is not practically impossible for Judge
B to continue a part-heard trial heard by the erstwhile
Judge A upon a careful study of the records of the court.
It is pretentious to place overwhelming theories on a physical
inspection of demeanours of witnesses as paramount, when indeed
truths and prevarications can be found in the accounts penned by
the erstwhile judge.

One of the mentioned events that sure divided the legal
community was that of elevation of judges to higher courts while
there remained cases on the judges’ docket; the implication is that
the part-heard matter loses its life with every memory of it
definitely wiped out. This has been decided in a long line of
notorious cases such as OGBUNYINYA & ORS V OKUDO & ORS
(1979) NSCC 77; OUR LINE LTD V S.C.C. NIGERIA LTD & ORS (2009) 17
NWLR (Pt. 1170) 383 and the recent case of UDE
JONES UDEOGU V FRN & ORS SC.622C/2019 (unreported). UDE
JONES’ Case (supra) is known to most persons that followed
the turn of events involving Orji Uzor Kalu – wounds of which we
now treat quietly. In that case, the Supreme Court had the chance
to apply Ut Res Magis Valeat Quam Pereat the principle
that will give effect to s.396 (7) of the ACJA
2015 rather than defeat the legislative intention. The
Supreme Court gambled away the chance to qualify the outstretched
arms of trial de novo and relished to a pulp the fanciful
technical ratiocinations such as “he has been elevated thus not
a member of the erstwhile court”, “the Justice of the
Court of Appeal cannot give a fiat to the new elevated Justice as
it runs contrary to s. 1(2) (a) of the Federal High Court
Act 2004”, to mention a few. One thing that cannot be
rebutted easily is the fact that we cannot be more rational than
our sentiments and if the Supreme Court really wanted to give life
to s.396 (7) ACJA 2015, it could have done so
relying on the need to cater for the missing gaps in the
Constitution as regards elevation of judges. Problematic times,
really – trial de novo automatic once elevated and
trial de novo if the elevated Justice gets a fiat to
conclude part-heard matters.

On the issue of another judge delivering the judgment of an
erstwhile judge of that court, contemplating the mentioned events,
it is interesting that a trial de novo could still be
ordered on grounds that the judgment could not have been valid as
the erstwhile judge ceased to be a member of the court. Little hope
may have been set in motion following the decision of the Court of
Appeal in the case of AGF V ANPP & ORS (2003) 15 NWLR (Pt.
844) 600 at 658-659 where it was held that the omission in
the Constitution vide s. 294 (2) CFRN to provide
for the delivery of a judgment by another judge of the same court
was a mere lacuna. The Court relied on Ss. 21 and 23 of the
Federal High Court Act to arrive its decision. For ease of
reference, the said sections will be reproduced below:

21. 21. Where the Judge who shall preside over the
    sitting of the court is from any cause unable or fails to attend
    the same on the day appointed, and no other Judge is able to attend
    his stead, the court shall stand adjourned from day to day until a
    Judge shall attend or until the court shall be adjourned or closed
    by order under the hand of a Judge.
22. 23. Every proceeding in the court and all business
    arising thereat shall, so far as is practicable and convenient and
    subject to the provisions of any enactment or law be heard or
    disposed of by a single Judge, and all proceedings
    in an action subsequent to the hearing or trial, down to and
    including the final judgment or order shall, so far as is
    practicable and convenient, be taken before the Judge before whom
    the trial or hearing took place. (Underlined
    words mine)

The reliance on the practicability and convenience test in
ruling that another judge could deliver the judgment of the
erstwhile judge was sound and possible only because the Court was
swayed by its sentiments and the need to secure a value judgment –
laudable and dry behind the ears, definitely. Moreso, it could also
make for good logic if the practicability and convenience test be
extended to earlier mentioned events considering that s. 23
Federal High Court Act does not limit the test to delivery
of judgments – argued here is that if a judge is elevated,
transferred, deceased or removed, another judge of the court could
stand in just so that justice does not become delayed. It is good
that most laws of Courts have a similarly worded
s.23 but the reasonable fear is that a sound
argument could pop challenging the inheritance of the erstwhile
judge’s case files when he ceased to be a member of the court. In
fact, the entire gist in the later decided case instilled the fear
further in the case of NANA & ORS V NINGI & ORS (2018)
LPELR-46399 (CA) where it was held, inter alia, as
follows:

In the case of BAKULE V. TANEREWA (NIG.) LTD
(supra), it was held by this Court that decisions and orders made
by a Court in a matter which later starts de novo before another
Court of competent jurisdiction are not in existence and are
lifeless in the new trial.

4. RECOMMENDATIONS

It is submitted that the problem may not lie with the
Constitution, really – especially as cannons of interpretation are
always on standby to ensure statutes are brought in conformity with
public policy and convenience. If we must mitigate the hardship
caused by trial de novo, we should consider the following
key points:

Firstly, all Superior Courts of Record should have practice
directions regulating instances of the earlier mentioned events as
it is not expressly catered for in the Constitution and any statute
book. There should be incorporated into the practice directions the
provision that elevated judges could conclude part-heard trials;
also, a provision enabling another judge to inherit the part-heard
trials should be incorporated bearing in mind the practicability
and convenience test. The logic that an ‘elevation of a judge makes
for no jurisdiction’ should put in perspective the fact that it is
possible for an elevated judge not to be criticized for serving two
courts once it is seen that though he was appointed, he was yet to
either take the oath of allegiance or declare assets vide
s. 290 CFRN. The appointing authority should make
sure that the elevated judge be given a grace period to conclude
pending trials on his docket before resuming or functioning as a
Justice of a higher court – the time frame being a reasonable time.
This is even the practice in the United Kingdom as confirmed by
Queen’s Counsel resident in that jurisdiction. To be added here is
the fact that rather than practice directions, it could form as
statutory provisions to avoid future sound arguments on the weight
of a practice direction.

Secondly, a way to cure the mischief will be to amending
relevant provisions of the statutes regulating the Superior Courts
of Record such as the Federal High Court Act or other High Court
Laws of States. There would not have been need for the Court of
Appeal in AGF V ANPP (supra) to forcefully untie
itself from the shackles of the bad mammoth practice brought by
trial de novo, if s.23 of the ACT, for
instance, had a proviso incorporating instances of the mentioned
events with the ultimate conclusion that another judge of the High
Court could continue with the part-heard trials such that where the
case was even inherited before the erstwhile judge could deliver
judgment on the day reserved for same, another judge of the court
could do same. This in itself will forestall, in parts, the
occurrence of unending or prolonged litigation.

The third and final point would be to amend the Constitution and
clear the air ultimately as that will avoid or end the reign of
rigid judgments of the Supreme Court on this matter since it is
hardly the case that alters of technicalities are no more
worshipped. The call for an outright amendment to reflect the
mentioned events is put last because of the cumbersome procedure in
effecting an amendment of the Constitution. It is however hoped
that all arms of government, particularly the judiciary and their
fervent love for trial de novo, rethink this concept and
work towards dispensing justice to all and sundry remembering
always that Justice delayed is Justice denied.

[1] Ugochukwu Obed Okocha is a young disputes
resolution lawyer. He is the Head of Litigation and Advocacy
Department in EXPERTS IN LITIGATION AND ARBITRATION.

[2] See BLACK’S LAW DICTIONARY NINTH EDITION
PAGES 1431 AND 1645; OMOSAYE V. STATE (2014) LPELR – 22059 (SC)

[3] As it is trite, jurisdiction is the
life-wire of adjudication: see ARIBISALA & ANOR V TLABI OGUNYEMI &
ORS (2005) 6 NWLR (Pt. 921) 212 per Oguntade JSC.

[4] This inclusion is not found in the High
Court Rules of most states which has for provisions of transfer of
cases and consolidation only.

[5] On when order of retrial will be made, it
has been held in Okeowo v Migliore (1979) 11 SC
138 that where a trial court failed in its primary
duty of making findings of facts on issues joined on the pleadings,
and the evidence is such that an appellate court cannot make
findings and come to a decision on all relevant issues, an order of
retrial is the proper order the appellate court should make.