EFFECT AND CONSEQUENCES OF A TRIAL DE NOVO OR HEARING - POWERED BY JOHN JOHNSON (NBA ABA DIGITAL LEGAL ADVISER) AND C.K. ANYANWU (LAWYER OF PROMISE).

Powered by John Johnson (NBA ABA DIGITAL LEGAL ADVISER)

        &

C.K. Anyanwu (Lawyer of Promise)

Whether by Sections 285 and 285(1) of the Constitution, the National Assembly Election Tribunal and the Governorship and Legislative Houses Election Tribunal in a State are Courts of coordinate jurisdiction.

NANA & ORS. vs. NINGI & ORS.(2018)LPELR-4639­9(CA)                    

ISSUE: TRIAL DE NOVO-

Effect/consequences of a trial de novo or hearing                                            

PRINCIPLE:

"By Wex Legal Dictionary, DE NOVO means "from the new". When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a "new trial" by a different tribunal. The Latin word means "afresh", "a new", "beginning again". 

Trial de novo 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. See: 

BLACK'S LAW DICTIONARY NINTH EDITION PAGES

1431 AND 1645; OMOSAYE v. THE STATE (2014) LPELR-22059 (SC). In a trial de novo the case must be proved a new or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge's findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of. 

This is the reason why it is a fundamental of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of "estoppel". GIPPS v. GIPPS & HUME (1864) 11 HL CAS 1: 1861-73 ALL ER REP 138; FADIORA & ANOR. v. GBADEBO & ANOR. (1978) LPELR-1224 (SC); OSONDU & ANOR. v. NDUKA & ORS. (1978) LPELR-2811 (SC). In ROE v. R.A. NAYLOR LTD. (1918) 87 LJKB 958, the Court of second trial refused to admit in evidence some findings made by the Court of first trial as it was of the view it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady MR observed: "Counsel for the Appellants sought to rely upon some findings of the Judge in the first trial of the action.

 In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial.

" See: GRAY v. DALGETY & CO. LTD. (1916) 21 CLR 509; VENN v. TEDESCO (1926) 2 KB 227. This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: "In new trials, the case must be reproved de novo, and the evidence and verdict given, and the Judge's findings at the first trial are inadmissible. "This meaning and purport of a de novo trial can by no means be thwarted.

 The issue here is whether the decisions of this Court in EYO v. EKPENYONG (2012) 11 NWLR (PT. 1311) 316 and BAKULE v. TANEREWA (NIG.) LTD. (1995) NWLR (PT. 380) 278) are in conflict and whether the decision in EYO v. EKPENYONG (supra) is applicable to the suit leading to this appeal. In the case of BAKULE v. TANEREWA (NIG.) LTD. (supra) the Respondent who was the Plaintiff in the High Court of Kano State sued the Appellant and the case was assigned to Tijjani Abdullahi J. before whom the Appellant filed application to strike out the matter for want of jurisdiction. Tijjani J. refused the application but could not dispose of the matter before he was transferred to High Court Jigawa State and the case was assigned to B.S. Adamu J. before whom the matter started de novo.

The Applicant then filed similar application he had earlier filed before Tijjani Abdullahi J., B.S Adamu J. did not consider the application filed by the Appellant challenging the jurisdiction of the Court but went ahead and considered the substantive matter. 

On Appeal the Court of Appeal held as follows: "The effect of starting a case afresh before another Judge is to sweep clean all previous proceedings in the case. Any of the parties therefore is free to bring afresh any application brought before the previous Judge and in which he gave an adverse ruling against that party. ODI v. OSAFILE (1987) 2 NWLR (PT.57) 210 AT 512 referred to, followed and applied) (P.738, Para. C) per MOHHAMED, JCA, at page 738, paras. F-H:

" On the other hand, in the case of EYO v. EKPENYONG (Supra) the Appellant contested with the Respondent in the election into the Mbo State Constituency of Akwa Ibom State and the Respondent was declared winner of the Election by the 3rd Respondent (INEC), and dissatisfied with the declaration of the result in favour of the 1st Respondent, the Appellant filed a petition before Election Petition Tribunal sitting in Uyo, Akwa Ibom State challenging the declaration of the 3rd Respondent as the winner. 

Upon motion ex-parte by the Appellant the tribunal granted his prayer and ordered that the Forms TF007 and TF008 issued by the Tribunal Secretary be deemed as properly issued by the Tribunal. 

Subsequently, the Tribunal transferred the Appellants Petition alongside other Petitions to another Tribunal called Panel 2 and after issuance of Hearing Notices to the parties, Panel 2 raised the issue of its competence to hear the petition and after addresses by counsel, the Tribunal (Panel 2) held that it has no jurisdiction to hear the petition. Dissatisfied, the Appellant filed an Appeal before Court of Appeal and contended among others that Tribunal Penal 2 does not have jurisdiction to upturn Orders made by Tribunal Panel 1 as both are Court of competent jurisdiction. 

In allowing the appeal unanimously the Court held thus: Ratio 3: "De novo' means starting a hearing afresh. All processes previously filed and orders remain valid. Orders can be challenged on appeal to a higher Court. Therefore, when a trial is starting de novo, it does not mean that processes already field would be filed afresh. (p. 323, para. C)". 

Ratio 4: "A Court or tribunal cannot sit on appeal over decisions or orders of a Court or tribunal of coordinate jurisdiction. Per EKO, JCA, (as he then was) at page 324, paras. B-C: "My answer is that panel No. 2 does not possess that power to act as an appellate tribunal over in the same matter when the matter started de novo before Panel No. 2; the said panel No. 2 is functus officio in the circumstance. It has not been shown that the orders made previously by panel No. l which panel 2 purportedly set aside were made by panel No. l ultra vires its powers or that the orders were manifestly illegal and therefore void ab initio.

" The facts in both cases are similar to the extent that in each of them the Appellants had respectively sought the grant of an application earlier refused in the first trials that subsequently started de novo in the cases of EYO v. EKPENYONG (supra) and BAKULE v. TANEREWA (NIG.) LTD. (supra). 

In the referred cases, the issue bothered on whether an order made by a first trial Court in a matter remains valid and subsisting even when the matter is heard afresh or de novo by another Judge of the same judicial hierarchy. The facts and issue are similar except that the circumstances of the two cases however seem different in that; while EYO v. EKPENYONG (supra) is an election petition case, BAKULE v. TANEREWA (NIG.) LTD. (supra) is a civil matter. It follows that the instant case is on all fours with the case of BAKULE v. TANEREWA (NIG.) LTD. (supra) which is also a civil matter.

By the decision of this Court in BAKULE v. TANEREWA (NIG.) LTD. (supra), the effect of starting a case afresh before another Judge is to sweep clean all previous proceedings in the case in which case any of the parties thereto is free to bring afresh any application brought before the previous Judge and in which he gave an adverse ruling against that party. 

Importantly, let me refer to the voice of the full Court of this Court in NGIGE v. OBI (2012) ALL FWLR (PT. 617) 738 AT 757-758, where the Court positioned as follows: "Trial or hearing de novo means trying a matter anew, the same as if it had not been held before and as if no decision had been previously rendered. 

It is a new hearing or a hearing for the second time contemplating an entire trial in the same manner in which the matter was originally held and a review of previous hearing. 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.

The judicial effect or consequence of a case starting de novo before another tribunal is to render null and void all previous and pending proceedings and orders made in the case before the order of de novo was made." By the doctrine of stare-decisis a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the Court considers subsequently are same or similar. 

See: NWABUEZE v. THE PEOPLE OF LAGOS STATE (2018) LPELR-44113 (SC); DR. UMAR ARDO v. ADMIRAL

MURTALA NYAKO & ORS. (2014) LPELR-22878 (SC); NIGERIA AGIP OIL COMPANY LTD. v. CHIEF GIFT NKWEKE (2016) LPELR-26060 (SC). Where a lower Court holds itself bound by the decision of the apex Court on same or similar facts, an appellant's grudge against the lower Court's decision will be of no moment. 

See: DALHATU v. TURAKI (2003) 15 NWLR (PT. 843) 310; NOBIS- ELENDU v. INEC & ORS. (2015) LPELR-25127 (SC). There is no doubt that the trial Court by the doctrine of stare decisis was bound to follow the decision of this Court, but the issue is which amongst the conflicting judgments was it supposed to follow. 

Where a Court lower in judicial hierarchy is faced with two conflicting decisions of a higher Court which by the principle of stare decisis it is bound by its decision, the position of the law is clear, the said Court is bound to follow the decision that is later in time as the right position of the law. 

See: BOB MANUEL v. WOJI (2010) 8 NWLR (PT. 1196) 260; MOHAMMED v. M.E. COMPANY LTD. (2010) 2 NWLR (PT. 1179) 473; OSAKUE v. F.C.E., ASABA (2010) 10 NWLR (PT. 1201) 1. The learned counsel for the Respondents had argued that the trial Court was right to follow the case of EYO v. EKPENYONG (supra), as the same was the later in time.

The flaw in this argument lies in the fact that the full Court of the Court of Appeal in NGIGE v. OBI (supra); decided the same year with the case of EYO v. EKPENYONG (supra) held contrary to the decision of the Calabar Division of this Court in EYO v. EKPENYONG (supra). 

The effect of the full Court decision of this Court, firstly on the Court and consequently on the lower Courts is that when there is a decision of the full Court of the Court of Appeal, its decision as opposed to any conflicting decision of the Court, is the judgment of the Court of Appeal. It is the said judgment that will have binding effect on both the Court and lower Courts. The principle of stare decisis is a rule of adherence to judicial precedents. 

It postulates that when a point or principle of law has been officially decided or settled by a ruling or pronouncement of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the tribunal, or by those who are bound to follow its adjudications, unless there be urgent reasons and in exceptional cases. KASSIM v. STATE (2017) LPELR-42586 (SC).

The cases of EYO v. EKPENYONG (supra) and BAKULE v. TANEREWA (NIG.) LTD. (supra); bother on the effect of a decision made by a Court of first trial in a matter which is later heard de novo by another Court of coordinate jurisdiction.

 This Court in EYO v. EKPENYONG (supra) said any previous decision or order made by a Court of competent coordinate jurisdiction which has not been set aside on appeal subsists in a later adjudication de novo. On the other hand, 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 coordinate jurisdiction are not in existence and are lifeless in the fresh trial. 

The apex Court decisions on matters tried de novo is to the effect that when a matter is tried de novo, decisions and orders made in the first trial are wiped clean. They cease to exist and are therefore lifeless. The de novo trial comes clean and clear as if there has never been any trial let alone decision or order of any sort on the matter in the first trial. FADIORA & ANOR. v. GBADEBO & ANOR. (1978) LPELR-1224 (SC); OSONDU & ANOR. v. NDUKA & ORS. (1978) LPELR-2811 (SC); BABATUNDE v. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & ORS. (2007) LPELR-698 (SC); BIRI v. MAIRUWA (1996) 8 NWLR (PT. 467) 425; KAJUBO v. THE STATE (1988) LPELR-1646 (SC).

From what I have said above in line with the Supreme Court decisions, the decision of this Court in BAKULE v. TANEREWA (NIG.) LTD. (supra), is the position of the law on trial de novo in civil matters. I said, IN CIVIL MATTERS. What then is the effect of this on the decision of this Court in EYO v. EKPENYONG? Is the decision therein in conflict with the decision in BAKULE v. TANEREWA (NIG.) LTD. (supra). The answer is in the affirmative. 

Let me reiterate that the case of EYO v. EKPENYONG (supra) is an election petition matter in which time is of essence and the action sui generis. Election petition matters are soundly in their own class and akin to themselves. 

They are special proceedings completely separated and divorced from civil proceedings. They are governed by Electoral Acts and have rules regulating proceedings in the special Courts set up to hear election matters.

Section 285 of the Constitution creates two election Tribunals - one is the National Assembly Election Tribunal under Section 285 (1) and the other is the Governorship and Legislative Houses Election Tribunal under Section 285 (2). 

Let me note here that in each State the National Assembly Election Tribunal is one no matter the number of panels set up for quick disposal of the petitions arising from the State, this also goes for the Governorship and Legislative Houses Election Tribunal in States. 

Howbeit, with all these set uniqueness of Election Petition matters, the Full Court of this Court in an Election Petition case did not depart from the position of the law on matters tried de novo as pronounced by the apex Court in the cases referred to above. 

See: NGIGE v. OBI (supra). This indicates the fact that whether an action tried de novo is an election petition matter or civil matter; the principle of the law as laid down by the apex Court through the eyes of the cases referred to above, is the same. 

The learned counsel for the Respondents is in agreement with this obvious fact as shown in the Respondents' brief where he submitted thus: "On the argument of the learned counsel to the Appellants that the case of EYO v. EKPENYONG (supra) being an election petition case is said to be sui generis and does not apply to the instance case, we respectfully submit that this is a blatant misconception of the principle of stare decisis. 

The Court in EYO's case did not say or base its decision on the ground that the matter before it is election petition, but rather the Court reiterated the laid down general law that when a matter starts de novo all orders made in the previous proceedings remain valid and subsisting and can only be challenged on Appeal without specifically stating that this principle is in respect of election petition or making reference to Electoral Act or any other Electoral Law and respectfully urge this Honourable Court to so hold.

" Whereas it has been agreed that the case of EYO v. EKPENYONG (supra) was not decided by this Court based on its being an election petition matter, it follows that the facts and circumstances of the case of EYO v. EKPENYONG (supra) and BAKULE v. TANEREWA (NIG.) LTD. (supra); are the same with the instant case on appeal and the two referred decisions of the Court in conflict. 

Consequently, by the decision of the full Court in NGIGE v. OBI (supra); the decision of the Calabar division of this Court does not represent the decision of the Court of Appeal in issue of trial de novo in Election Petition Matters or in civil matters.The case of EYO v. EKPENYONG (supra) relied on by the trial Court to refuse the Appellants' application to amend their pleadings is therefore in conflict with not only the case of BAKULE v. TANEREWA (NIG.) LTD. (supra); but with the decision of the full Court of the Court of Appeal in NGIGE v. OBI (supra). 

From what I said above, I hold that the two referred cases are in conflict and that the learned trial Judge was wrong when it relied on EYO v. EKPENYONG (supra) to refuse the application subject matter of this appeal instead of relying on BAKULE v. TANEREWA (NIG.) LTD. (supra) to grant the same." Per ONYEMENAM, JCA.(Pp.10-24,Paras.B-E).