CYPIACUS NNADOZIE & 3 ORS V NZE OGBUNELU MBAGWU

CORAM

RHODES-VIVOUR JUSTICE, SUPREME COURT

ALOYSIUS IYORGYER KATSINA-ALU JSC, JUSTICE, SUPREME COURT

PARTIES

. CYPIACUS NNADOZIE2.OKORO NNADOZIE3.ALUSIOBI OBIWURU4.SAMUEL OBIWURU APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent sued at the Customary Court for a declaration to customary right of occupancy to a parcel of land, injunction and damages. The Court gave judgment to the Respondent. On appeal, the Customary Court of Appeal allowed the appeal and ordered a retrial. On a further appeal to the Court of Appeal, that court dismissed the appeal and confirmed the order of the Customary Court of Appeal for a retrial, hence this appeal. ?

HELD

Appeal dismissed. The Court held that the order for retrial was rightly made. More so as the customary court judgment was based on the decision of an oracle which is prohibited. ?

ISSUES

1. Whether the Court of Appeal misconceived the respective cases of the parties?2. Whether the Court of Appeal was right in determining the appeal based on issues raised suo motu by it and in respect of which parties did not address it.3. Whether the order of retrial made by the Court of Appeal was in law right.?

RATIONES DECIDENDI

ORDER OF RETRIAL

Where however it is manifest from the record that the plaintiffs case has failed in toto and there is no manifest irregularity of a substantial nature, a retrial order which will be tantamount to giving the Plaintiff another bite at the cherry ought not to be made. Per Tabai JSC

CREDIBILITY OF WITNESSES

Questions of demeanour 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. Per Tabai JSC

ORDER OF RETRIAL

Where a Plaintiff fails totally to establish his case and there is no manifest irregularity committed by the trial court, a retrial order ought not to be made as such an order will amount to giving the Plaintiff another opportunity to prove his case. Per Tabai JSC

ORDER OF RETRIAL

Where 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. Per Tabai JSC