MONGUNO V. BLUEWHALES & CO. & ORS

Legalpedia Citation: (2023-03) Legalpedia 21646 (SC)

In the Supreme Court of Nigeria

Holden at Abuja

Fri Mar 3, 2023

Suit Number: SC.12/2011

CORAM

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU JUSTICE SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE SUPREME COURT

ADAMU JAURO JUSTICE SUPREME COURT

PARTIES

HAJIA AISHA KAMARIAM MONGUNO

APPELLANTS

BLUEWHALES & COMPANY
GOODLUCK ADEKWEH
ALHAJI SHEHU KOLLERE

RESPONDENTS

AREA(S) OF LAW

APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal from the decision of the Court of Appeal which aggrieved the Appellant because the court failed to make pronouncements on issues raised by the appellant.

HELD

Appeal allowed

ISSUES

Ø Nil

RATIONES DECIDENDI

‘RETRIAL’ AND ‘FRESH TRIAL’– WHEN THE COURT ORDERS FOR A RETRIAL OR A FRESH TRIAL

In the case of YAHAYA Vs. THE STATE (2002) 3 NWLR (Pt. 751) 289, this Court aptly pointed out the pertinent distinction between two dissimilar terminologies “re-trial” and “fresh trial”, inter alia:

However, a retrial is ordered only when there has in fact been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. In the present case, there has been no trial because the purported trial was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial. This distinction is very important in deciding the consequential order to be made. Per Uwais, CJN @ 304-305; UMARU Vs. THE STATE (1979) 11 SC 1, OKAFOR Vs. THE STATE (1976) 5 SC 13; ABODUDUN Vs. THE QUEEN (1959) SCNLR 167 @ 166; OKOSUN Vs. THE STATE (20…) 3-4 SC 36, OMOSAYE Vs. THE STATE (2014) LPELR-22059(SC) @ 31-33 Paragraphs E-A. – Per I. M. M. Saulawa, JSC

ISSUES RAISED BY PARTIES – LOWER AND INTERMEDIATE COURTS HAVE A DUTY TO MAKE A PRONOUNCEMENT ON ALL ISSUES RAISED BY PARTIES

The law is settled that a Court of first instance or an intermediate Court has a duty to consider and make a pronouncement on all issues properly raised before it by the parties. In certain instances, an issue may be subsumed by the consideration of other issues. The Court must reflect this fact in its judgment. The need to consider and pronounce on all issues properly before the Court is to ensure that justice is not only done but seen to have been done. Furthermore, in the event that the trial or intermediate Court’s decision is overturned on appeal, a consideration of all the issues would give the appellate Court the benefit of the reasoning of the lower Court on the issues and the Court would be in a position to resolve the issues in dispute once and for all. The exception to this rule is where, from the circumstances of the case, the Court intends to order a retrial, in which case the Court must refrain from commenting on issues yet to be tried See:Alhaji Mohammed Bello Gidiya & Ors Vs Alhaji Mohammed Sanusi & Ors. (2022) LPELR – 58932 (SC) @ 10-12 E – C; Dec Oil & Gas Ltd Vs Shell Nig. Gas Ltd. (2019) LPELR – 49347 (SC) @ 27-29 F per Galumje, JSC.

Failure to make findings and pronounce on material and fundamental issues raised by the parties may result in a miscarriage of justice, as the right of the parties to fair hearing would have been breached. See: Honeywell Flour Mills Plc Vs Ecobank (2018) LPELR – 45127 (SC) @ 31-33 F – B; Osareren Vs FRN (2018) LPELR- 43839 (SC) @ 12-13 D; Olayemi & Ors. Vs F.H.A. (2022) LPELR – 57579 (SC) @ 45-46 F – B. – Per K. M. O. Kekere-Ekun, JSC