BAKARE V. APENA

• Pages: 935-953

BAKARE V. APENA

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935

BAKARE V. APENA

5

A.T. BAKARE

V

10 T.S. APENA

SUPREME COURT OF NIGERIA

IRIKEFE,

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J.S.C.

OBASEKI,



J.S.C.

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ANIAGOLU,

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J.S.C.

NNAMANI,

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J.S.C.

COKER,

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J.S.C.

KAWU,



J.S.C.

OPUTA,

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J.S.C.

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27th June, 1986

APPELLANT

RESPONDENT

SUIT NO. SC 51/1985

Appeals (Civil) - Retrial order - Appropriate case - Trial judge visiting plaintiff's

counsel in chambeis to discuss errors discovered by him in his own judgment

delivered previous day and to invite him to attend court for delivery of

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amended judgment - Original judgment set aside as vitiated by trial judge's

irregular conduct and by his own admission of ftuidennental errors then and

amended judgment as delivered after trial judge flinch's

.

officio - Plaintiff's

claim dismissed by both original and amended judgments - Retrial order less

likely in the circumstances to occasion miscarriage of justice than would refusal

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of retrial.

ISSUES:

1.

Whether a judgment can be vitiated merely because the judge later went to see

counsel in chambers to attend court for the delivery of an amended judgment,

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when he was

functus

officio.

2.

Whether a trial judge has power to review his own judgment, after having

delivered same.

3.

What are the principles that govern an order of retrial?

FACTS:

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The plaintiffs/respondents brought an action against the defendant appellant,

claiming a declaration of title to land under native law and custom, damages for

trespass and a perpetual injunction to restrain the defendant from further acts of

trespass. The learned trial judge, after hearing evidence, dismissed the plaintiffs

claims in their entirety.

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After delivering judgment, the learned trial Judge discovered an error he had

made in the judgment then went to visit the counsel for the respondent in cham-

bers, to invite him to attend court the following Monday, 12th March when the judg-

ment would be reviewed, and the amended judgment delivered. On the 12th March,

the appellant's counsel appeared. He addressed the court on the question of the

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learned Judge's competence to amend his own judgment. Thereafter the learned

Judge delivered his amended judgment, in which he amended the errors, but the

result was the same as the previous judgment.

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NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

The respondents thereupon appealed to the Court of Appeal. The Court of Ap-

peal unanimously allowed the appeal, holding that the learned trial judge was

func-

tus officio

when he purportedly delivered the judgment of 12th March 1979, and

thus it was null and void. It was also held that since the learned trial Judge admitted

making fundamental errors in his earlier judgment, that judgment must also be an-

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nulled. A new trial was ordered.

The Appellant, being aggrieved by this decision appealed to the Supreme

Court, contending that though the conduct of the trial judge was irregular, it was

not so irregular or objectionable as to vitiate the proceedings and judgment of 9th

March 1979.

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HELD:

1.

The conduct of the learned trial judge in visiting the chambers of the

respondents counsel was reproachable and irregular and ill advised, though it

came out of a sincere desire to correct the errors in his judgment of 9th March

1979. Thus likelihood of bias is erased. Even though there was no likelihood

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of bias, the judgment 9th March should not stand. This is due to the erosion of

confidence in the adjudicative process brought about by the conduct of the

learned trial judge. Though the appellant was not responsible for the events

surrounding the judgment of 9th of March which was in his favour. a retrial

order would not ammount to a miscarriage of justice, thus a retrial is ordered.

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2.

Where a court has decided an issues and the decision of the court is embodied

in some judgment or order that has been effective, then the Court cannot reopen

the matter and cannot substitute a different decision in place of the one which

has been recorded. Those who seek to alter must in those circumstances

invoke such appellate jurisdiction as may apply.

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3.

An order for retrial can be made where -

(a)

that there has been an error in law (including the observance of the law of

evidence) or an irregularity in procedure of such character that on the one

hand the trial was not rendered a nullity and on the other hand the court is

unable to say that there has been no miscarriage of justice, and to invoke

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the proviso to section 11(1) of the Ordinance;

(b)

that leaving aside the error or irregularity, the evidence taken as a whole

discloses a substantial case against the appellant;

(c)

that there are no such special circumstances as would render it oppressive

to put the appellant on trial a second time;

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(d)

that the offence or offences of which the appellant was convicted or the con-

sequences to the appellant or any other person of the conviction or acquit-

tal of the appellant, are not merely trivial;

(e)

that to refuse an order for a retrial would occasion a greater miscarriage of

justice than to grant it' .

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CASES REFERRED TO IN JUDGMENT:

1.

Chidiac v. Laguda

(1964) N.M.L.R. 123.

2.

Bray v. Ford

(1895) A.C. 44.

3.

Edun v. Odan Community

(1980) 8-11 S.C. 103.

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4.

Serjeant v. Dale

(1877) 2 Q.B.D. 558.

5.

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon

(1969) 1 Q.B. 577.

6.

Deduwa v. Okorodudu & Ors

(1976) 9-10 S.C. 329.

7.

Whitford Residents and Rate Payers Association v. Manukau City Corpora-

tion

(1974) 2 N.Z.L.R. 340.

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8.

Commonwealth Concilation & Ors. v. Ex Parte the Angliss Group

112 C.L.R.

546.

9.

Minister of Lagos Affairs, Mines & Power & Anor. v. Olugbade & Ors

(1974)

1 All N.L.R. 226.