CORAM
PARTIES
ILIYASU UMAR
APPELLANTS
BAYERO UNIVERSITY, KANO
RESPONDENTS
AREA(S) OF LAW
CIVIL PROCEDURE – TORT – NEGLIGENCE – RETRIAL
SUMMARY OF FACTS
The appellant at the trial court sued the defendant for the damage caused by the negligence of the servant of the defendant for causing a fire which burnt down the two flats in a building of one storey containing two flats each on ground floor and first floor respectively. There is no dispute that a fire engulfed two flats However, the parties’ dispute the cause of the fire outbreak.
HELD
That the parties must be afforded the opportunity of having the points in dispute between them re-tried.
ISSUES
Whether the Court of Appeal has jurisdiction to relist an appeal that it has dismissed for non-appearance of the parties at the hearing of the appeal.
Whether in all the circumstances of the case, the Court of Appeal ought not to have made an Order for a retrial of the suit in view of the fact that it held that the trial judge failed to resolve the main issue upon which the evidence of the witnesses at the trial turned by a visit to the locus in quo.
Whether the comments made in passing on the case particularly in respect of Exhibit 1 and 1A and Exhibit 3 by the Court of Appeal did not adversely affect the Appellant’s case even though the Court of Appeal pointed out that these issues have not been taken into consideration in reaching the decision to allow the appeal of the Respondent.
RATIONES DECIDENDI
RETRIAL.
‘Where the vital issues are left unappraised by the trial court and this has led to inconclusive review of the evidence of the parties, the duty of the appellate court is to allow the appeal. But that is not all, the parties must be afforded the opportunity of having the points in dispute between them re-tried and a retrial is the only remedy.’ Per S.M.A. Belgore J.S.C.
CASES CITED
Chief James Okpiri& Ors. Vs. Chief Igoni Jonah & Ors. (1961) 1 AII NLR. 102
Obadara & Ors. vs. President, Ibadan West District Court (1964) 1 AII NLR. 336
Total v. Nwaka (1978) 5 SC. 1, 14
Taiwo Okeowo & Ors. vs. D. Alessandra Miglore & Ors. (1979) 11 SC. 177, 201
Oladipo Maja vs. Learndro Stocco (1968) NMLR. 173.Kuti vs. Balogun (1978) 1 LRN. 333,357
T.O. Kuti (Trading as Abusi Odumare Transport) vs. O. Jibowu (1972) 5 SC. 747).
STATUTES REFERRED TO
NONE|