By U. O. OKOCHA ESQ.
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. 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.
- 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. 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. 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. 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.
- 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. 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.
- 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.
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.
 Ugochukwu Obed Okocha is a young disputes resolution lawyer. He is the Head of Litigation and Advocacy Department in EXPERTS IN LITIGATION AND ARBITRATION.
 See BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. STATE (2014) LPELR – 22059 (SC)
 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.
 This inclusion is not found in the High Court Rules of most states which has for provisions of transfer of cases and consolidation only.
 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.