Order of Retrial: When Appropriate to Make
Facts
The Respondent’s father (Joseph Nwachukwu (deceased)) obtained a 30 year lease commencing from 1st January, 1949, over a parcel of land situated at No. 35, Miss Elems Street, Fegge, Onitsha in Anambra State. In 1965, he sold the land and a building erected on it to late Sylvester Nnadike, and issued a receipt dated 12th December, 1965 in respect of the transaction. The latter also equally received the title documents to the land with building plan of the house erected thereon, including two Certificates of Occupancy issued by the Onitsha Urban County Council (OUCC) dated 14th June, 1957 and 6th May, 1960 respectively. The said Sylvester Nnadike took possession of the property, while an application for consent to assign the lease to him was made by Joseph Nwachukwu. Though the application was approved, the Deed of Assignment was not executed before the civil war, which troubled the peace of Onitsha. When the civil war ended in 1970, late Sylvester Nnadike resumed possession and occupation of the property. Upon his death in 1973, the Administrators of his estate assumed the management and control of the property, by putting tenants therein.
Sometime in 1982, Joseph Nwachukwu invited the 2nd Appellant for series of meetings, where he informed the 2nd Appellant that he had taken back his property upon the expiration of the lease in 1978. At this time, Joseph Nwachukwu had applied to the Anambra State Government, and had been granted a Statutory Certificate of Occupancy dated 7th July, 1982 over the property for a period of ninety- nine (99) years, which took effect from 1st January, 1979.
Disturbed by the incident, the Appellants filed an action at the High Court of Anambra State, Onitsha seeking a Declaration that the Respondent is a trustee for the Appellants, in respect of the leasehold; specific performance by the Respondent to assign the property to the Appellants; and an Order compelling the Respondent to take all necessary steps to transfer the legal and equitable interest in the property to the Appellants. They asked, in the alternative, that the Respondent gives consent to an application by the Appellants to the Commissioner for Lands, Housing and Urban Development in Anambra State, for the assignment of the Respondent’s interest in the property to the Appellants.
The trial Judge considered the issues in the suit, and came to the conclusion that the said Sylvester Nnadike’s interest survived the expiration of the lease, on the principle of implied option of renewal, and that the Appellants are in lawful possession of the property, until the Attorney-General files a suit for recovery of possession. The court held further that, the Certificate of Occupancy dated 7th July, 1982 (Exhibit D10) granted to the Respondent is a nullity, and that the said grant was made to the Respondent as an agent/trustee of the Appellants.
Dissatisfied with the decision, the Respondent appealed to the Court of Appeal, which court allowed the appeal, on the ground that the order of the trial court was contradictory and invalid; in that the trial court made an order declaring Exhibit D10 obtained by the Respondent as being null and void, and subsequently, made an order directing the said document to be assigned to the Appellants. Upon the turn of events, the Appellants who were aggrieved by the decision, appealed to the Supreme Court.
Issue for Determination
Whether, in view of the findings of facts and the reliefs claimed by the Appellants at the trial court, the Court of Appeal is justified in allowing the appeal and ordering a retrial of this suit.
Arguments
In his submission on the lone issue, counsel for the Appellants challenged the decision of the Court of Appeal on three main grounds – that there was no substantial error in the judgement of the trial court, so as to warrant an order setting aside the judgement; that the order of retrial was unwarranted, as they had proven their case before the trial court; and that the Appellants did not pray for an order directing the transfer of Exhibit D10 to them. Counsel argued that though the trial court declared Exhibit D10 a nullity, the court still held that, assuming it was wrong in its decision invalidating Exhibit D10, then the said document must have been applied for and issued to the Respondent’s father, as an agent of the Appellants. Counsel posited that, the holding of the trial court was not contradictory, but made in the alternative – AMOKWANDOH v UAC & ANOR. 1
WACA 179. It was argued that the order of court, to the effect that a nullified Certificate of Occupancy be transferred to the Appellants, did not arise from the evidence before the court and the Court of Appeal ought to have invoked its powers under Section 16 of the Court of Appeal Act, to set the order aside. Counsel opined that, the foregoing notwithstanding, the error was neither substantial nor perverse, as it was not the basis of the decision of the trial court; hence, there was no circumstances to warrant the order of retrial made by the Court of Appeal.
Contrariwise, counsel for the Respondent referred to the decision of court in EKE v STATE (2011) 3 NWLR (Part
1235) 589 on the legal meaning of contradiction, to submit that, the Appellants who had conceded at the Court of Appeal that there was contradiction in the decision of the trial court, turned around to argue otherwise at the Supreme Court. He submitted further that, a court of law is not permitted to give two contradictory findings – AGBOMEJI v BAKARE (1988)
9 NWLR (Part 564) 1. Having declared Exhibit D10 null and void, there was no certificate to transfer. Counsel relied on decided authorities to submit that, an appellate court will not allow an inconsistent finding of a trial court to stand, as rightly done by the Court of Appeal.
Court’s Judgement and Rationale
Deciding the issue, the Supreme Court considered the meaning of the word “contradictory”, which was defined simply as mutually opposed or inconsistent. It is the position of the Appellants that the decision of the trial court was not contradictory, but given in the alternative. The judgement of the trial court was given in two parts, which are mutually exclusive. In the first part, the court considered the argument of parties and came to the conclusion that, by Section 34(2) of the Land Use Act 1978, late Sylvester Nnadike became the holder of a Statutory Right of Occupancy deemed granted by the Governor of Anambra State; therefore, the Certificate of Occupancy granted to the Respondent in 1982 was a nullity, and same was set aside. Afterwards, the trial Judge employed the phrase – “but if I am wrong” when he decided to consider the case based on the submission of Counsel for the Respondent who argued that, the grant of Exhibit D10 to the Respondent extinguished all rights existing on the land in dispute at the time of the grant. The issue here is clearly different from the one considered earlier, where the court determined the validity of Exhibit D10. In the second part, the court decided in the alternative that, should its earlier decision be wrong, then the Certificate of Occupancy granted the Respondent’s father in 1982 (Exhibit D10) was made primarily for the benefit of the Appellants, and issued to the Respondent as their agent. The two decisions are mutually exclusive, and the Court of Appeal only had to affirm one part of the judgement, and reject the other.
On the proper order to be made by the Court of Appeal in this instance, the Appellants had submitted that, the court should have exercised its powers under Section 16 of the Court of Appeal Act to set aside the order of transfer of Exhibit D10 to them, so as to finally settle the dispute between parties as the entire evidence is before the court – INAKOJU & ORS v ADELEKE & ORS (2007) 4 NWLR (Part 1025) 423. Appellate courts will take into consideration, the following factors before making an Order of retrial– (i) a retrial will be ordered, if it will satisfy the interest of justice; (ii) a retrial cannot be ordered as a mere course, routine or fun; it must be based on valid procedural reason(s); (iii) a retrial cannot be ordered to enable parties have a second bite at the cherry; (iv) a retrial cannot be ordered to compensate a losing party, especially where there is no substantial irregularity in the conduct of the case; (v) the order will not be made on ground of irregularity or lapses in the conduct of proceedings, if the irregularity can be corrected by the appellate court; (vi) an appellate court will not order a retrial, except in special circumstances warranting same, and the special circumstances will not be determined in vacuo, but in the light of the facts of each case – OKOMALU v AKINBODE & ORS (2006) LPELR-2470(SC).
Guided by the exposition above, the Supreme Court proceeded to determine the suitability of the order of retrial in the circumstance, and came to the conclusion that: the powers conferred on the Court of Appeal by Section 16 of the Court of Appeal Act, enable the appellate court to exercise the powers of a court of first instance. It is settled law, that the said Section 16 can be invoked to facilitate the administration of justice, as it is designed to avoid multiplicity of proceedings and hearings. Thus, instead of sending the case back to the trial Judge for trial, the Section, in appropriate cases, empowers the Court of Appeal to assume the jurisdiction of the trial court, to determine the real question in controversy between the parties, so as to save much needed time – DIPIANLONG & ORS v DARIYE & ANOR (2007) 8 NWLR (Part 1036) 332.
Having found that the decision of the trial court was not contradictory but mutually exclusive, it follows that the order of retrial made by the Court of Appeal, was inappropriate in the circumstances.
Appeal Allowed.
“..... A RETRIAL WILL BE ORDERED, IF IT WILL SATISFY THE INTEREST OF JUSTICE..... IT MUST BE BASED ON VALID PROCEDURAL REASON(S)..... AN APPELLATE COURT WILL NOT ORDER A RETRIAL, EXCEPT IN SPECIAL CIRCUMSTANCES WARRANTING SAME, AND THE SPECIAL CIRCUMSTANCES WILL NOT BE DETERMINED IN VACUO, BUT IN THE LIGHT OF THE FACTS OF EACH CASE......”