Ayodeji Arowolo
Femi Adeosun
Introduction
Picture this situation – an action for the recovery of debt in the sum of circa Two Hundred Million Naira is instituted at the High Court. A fierce legal battle ensues, multiple applications filed by counsel, several adjournments by the court, several billable hours and days, bank holidays which the court also has to observe, finally the trial commences, witnesses are called, documents (i.e., exhibits) are tendered by both sides, the trial has been ongoing for four years, the parties have presented their cases, and are satisfied with the evidence they have adduced in support of their assertions, the court orders parties to file their final written addresses, finally, it appears an end is in sight, and then the bombshell drops, the honourable Judge of the High Court and the beacon of hope for ‘justice’ (as subjectively defined by each side) is elevated to the Court of Appeal! Good news and a eureka moment for the Judge, family, friends and well-wishers, but not for the litigants.
By law, the matter has to be transferred to another Judge of the High Court to continue the trial. However, not from where his brother Judge stopped, but afresh! Four years of toil ‘washed down the drain’ by one single action, a letter received with great joy by the addressee, but which causes distress, deep and unquantifiable sorrow to others (counsel, litigants and several unknown persons impacted by the dispute which the Judge adjudicates). Certainly, the situation is an irony that can best described as a Curse!
‘De Novo’, latin expression meaning ‘from the beginning’, ‘anew’, is a phenomenon dreaded in the world of Litigation.
This Article explains the concept of Trial de novo and the mischief which the concept seeks to cure in our justice delivery system. The effects of commencing a trial de novo, with particular reference to the pain on the litigants is examined and an attempt is made to strike a balance between the mischief and consequences. Afterall, the general aim of society should be to achieve the “greatest good for the greatest number” and one of the important characteristics of law is promoting the common good. This Article concludes by making recommendations on how the effect (or curse) of Trial de novo can be alleviated in order to achieve greater justice in our legal system.
What is Trial De Novo?
In literal terms, ‘de novo’ means ‘over again’ or ‘anew’. Trial de novo therefore implies a new trial or a fresh trial. Obietonbara O. Daniel-Kalio JCA in the case of Shema & Ors v. FRN[1] described trial de novo as follows
“Now, de novo simply means anew; that is, to start all over again. Its implication is that it is as if no trial whatsoever had been had in the first instance. It is clear to me that when a matter commences de novo, it is like going back to the drawing board. Everything starts afresh, that is, the evidence of witnesses, evaluation of evidence by the Court; in short, the entire proceedings.”
When a trial starts de novo, proceedings are commenced afresh as if the original trial did not take place; the only court processes that are safe are the originating processes.[2] We posit that bearing in mind that our litigation process in itself is onerous and taxing, trial de novo should be avoided at all cost. When de novo occurs regardless, it does not only render futile the entire proceedings as well as the efforts and time expended, litigants must go through the pains of repeating similar processes if indeed it is their desire to obtain justice in the courtroom.
When will a trial be commenced de novo?
On one hand there will be trial de novo in the circumstance where the judge sitting on the trial is deceased, transferred, elevated, retired or removed from office. In such circumstance, the matters pending before the judge will be reassigned to another judge of the same court. This position was reiterated by the Court of Appeal in Bello v. C.O. P[3], Per Muhammad JSC as follows:
“The known principle of procedure is that where a different judge who did not conduct the trial from the start including arraignment, taking of and evaluating all evidence placed before him, making his findings based on the evidence and submissions of counsel, he cannot, legally speaking, partake at the middle or end of the case. He has to start de novo.”
On the other hand, an appellate court may make an order for trial de novo when the court is satisfied that reliance on the trial by the court below will result in miscarriage of justice.[4] In the case of Enang v. Umoh & Ors[5], Per Mohammed Lawal explained this position thus:
“In judicial practice, it is very well known that an order for a retrial, trial afresh or trial de novo, is usually made by an appellate Court when it is satisfied that the initial trial was no trial in law that was capable of determining the real dispute between the parties. Its effect is to nullify the purported proceedings and trial as if it never was conducted at all.”
Whether an order for trial de novo is made by an appellate court or trial de novo becomes a necessity by reason of death, elevation, transfer, or retirement of the judge, the effect it has on the trial is the same. It must start afresh!
The scope of this Article is limited to situations when a trial is ordered to commence de novo as a result of the elevation, retirement, death or transfer of the judicial officer of a trial court.
Why Trial de novo?
Regardless of the stage of the trial, when any of the events that triggers trial de novo occurs, the trial must commence afresh. The thinking behind trial de novo is that it is the judge before whom the proceedings commenced, who took all evidence and observed the demeanour of witnesses and listened to the submissions of counsel should be the one to determine the finality of the case by ruling one way or the other in a well-considered judgment. The courts have held that the order of de novo is to do justice and for the benefits of the parties.
In Nwaosu & Ors v. HFB Engineering Ltd[6], the Court of Appeal held:
“In FADIORA v. GBADEBO (1978) SC 219 also cited supra by the respondent, it was held by the Supreme Court that in trials de novo the case must be proved anew or rather reproved de novo, and therefore, the judge’s findings at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. In other words, the order that a matter be held de novo in a civil case is an order made for the benefit of both parties so that the matter in dispute could be addressed and resolved on merit.”
The laws establishing trial courts in Nigeria, in particular the Federal High Court and High Courts of the States, contain provisions to the effect that proceedings are to be disposed of by a single judge.
On this point, Section 23 of the Federal High Court Act[7] instructs as follows:
“Every proceeding in the Court and all business arising thereout shall, so far as is practicable and convenient and subject to the provisions of any enactment or law, be heard and disposed of by a single Judge, and all proceedings in an action subsequent to the trial or trial, down to and including the final judgment or order, shall, so far as is practicable and convenient, be taken before the Judge before whom the trial or hearing took place.”
Section 58 of the High Court of Lagos State Act[8] contains a similar provision
“subject to the provisions of this or any other enactment and subject to any rules of court, all civil and criminal causes or matters and all proceedings in the High Court and all business arising shall so far as practicable and convenient be tried, heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall so far as is practicable and convenient be taken before the judge before whom the trial or hearing took place.”
On a related note, the 1999 Constitution of the Federal Republic of Nigeria (as amended) makes provisions for a Justice of the Court of Appeal or the Supreme Court to deliver a judgement of another Justice of the same court who is absent by reason of death, elevation, retirement or transfer.[9] This privilege however does not extend to judges of the trial courts. For the avoidance of doubt, it is necessary to mention that even when a trial has progressed to a stage where the judge of the trial court has written his judgement before the elevation, retirement, transfer or death, another Judge of the court is precluded from delivering that judgement. The judgement written by a Judge of a trial court may only be delivered by another Judge of the same court if the trial Judge is absent but still a member of the same court.
In Wulge v. Olayinka[10] per Abiru JCA stated as follows:
“It is settled law that in deserving circumstances, there is nothing wrong with one Judge reading the judgment written by a fellow Judge of the same Court who is unavoidably not available to deliver it – Yunusa Vs Otun (1967) LLR 34, Edibi Vs The State (2009) LPELR-8702(CA), Attorney General of the Federation Vs All Nigeria Peoples Party (2003) 15 NWLR (Pt 844) 600, IPC (Nig) Ltd Vs Nigerian National Petroleum Corporation (2015) LPELR-24652(CA).
Decided cases, however, suggest that this ability of a Judge to read the judgment written by another Judge who is unavoidably absent lasts only as long as the Judge who wrote the judgment remains in the service of that same Court and that where the absence of the Judge is by reason of elevation to a higher bench, death, dismissal or retirement, it will be incompetent for another Judge to read the judgment written by the absent Judge from the date of the occurrence of the event causing the absence.
Consequences of Starting a Trial De Novo
It has already been established that when an action commences de novo, it starts afresh. The pain on the litigants who have expended time, resources and energy on a trial is better imagined.
The Court of Appeal in Ngige v. Obi[11] held:
“On hearing de novo, the Court hears the matter as a Court of original and not 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 or appropriate.”
An order for Trial de novo, to all intents and purposes, affects the evidence which has already gone into the records of the court. Specifically, it is important to ask what becomes of the oral testimony and documentary evidence before the court, prior to the elevation, transfer or death of the trial Judge. As noted by the Court in Ngige[12], when a trial commences de novo, parties are at liberty to re-litigate and reframe their case as they deem fit. Therefore, it is safe to conclude that witnesses who had earlier testified in a trial which commenced de novo must give another or a fresh testimony. In the same vein, documents which had already been tendered must be re-tendered. Still on this point, the provision of Order 49 Rule 4 of the Federal High Court Rules, 2019 contains an interesting provision worth highlighting. The Rule provides as follows:
“Where a judge is elevated, deceased, retires or is transferred to another division and having part-heard a cause or matter which is being re-heard de novo by another judge, the evidence already given before the retired judge or the judge transferred out of the Division can be read at the re-hearing without the witness who had given it being recalled. But if the witness is dead or cannot be found, the onus of establishing that the witness is dead or cannot be found, shall lie on the party that wishes to use the evidence.”
Based on the foregoing, during a trial which is reheard de novo at the Federal High Court, witnesses may not have to be recalled. However, it is to be noted that this rule applies only at the Federal High Court. In effect, where a witness is unavailable to testify in a trial commenced de novo at the State High Court or where such witness has died before the trial is recommenced, it means the party relying on such witness, has hobson’s choice and would have to dispense with the witness’ testimony. Assuming the witness in question is critical to the party’s case, the justice of re-commencing the case de novo, becomes tenuous and a mere cliché to the party.
When an order for trial de novo is made, it may affect orders that have been made at the interlocutory stage of the proceedings. The effect is determined by whether the order is an interlocutory or a final order. [13] If the orders made by the trial court before the order de novo is made is an interlocutory order, the parties are at liberty to re-litigate their applications as the previous orders have been nullified by the order of trial de novo. For instance, an application challenging the jurisdiction of the court may be refiled if the court had earlier ruled that it had jurisdiction. The Court of Appeal in Ngige v. Obi held that as follows:
“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 de novo is made.”
In contrast, when the order of the trial court at the first instance is a final order, such order will subsist notwithstanding the order of trial de novo. The Court of Appeal in the case Nwaosu & Ors v. HFB Engineering Ltd[14] held:
“In the present case, the Plaintiff/Appellant applied, and leave was granted to them to sue in a representative capacity. The case started de novo in another Court. When a case starts de-novo, it does not affect the parties suing. It only affects the proceedings. The parties have already obtained leave to sue in a representative capacity. The trial Court was therefore wrong to hold that leave already obtained is void when the case started de-novo.”
The Court further held that an order of trial de novo does not extend to any action taken or made towards the initiation of originating process such as filing of a writ summons and statement of claim. In other words, these orders are final.[15]
The pain of starting a trial de novo is premised on the sad reality that a litigant must repeat all the processes and steps he has taken before the elevation, transfer, death or retirement of the trial judge taking into account the fact that all the progress he has made will never bring forth results and per chance some results had been attained by way of little victories with respect to interlocutory applications, these can be eroded when an order to commence trial de novo is made.
Litigation is afflicted by several vagaries. It is expensive and also laborious. A typical civil or criminal litigation matter may drag on for a number of years without reasonable progress. In the midst of these exertions, starting a trial de novo is no less than a curse.
Litigants bear the cost of litigation until the case is brought to a close.[16] Litigants pay for filing of court processes and service of same, certification of documents where necessary, appearance fees to counsel, the cost of transportation of parties and witnesses to court etc. When de novo happens, all expenses on the trial agonizingly has to be written off as a loss.
Needless to add that the legal practitioner also shares in this pain. Although a legal practitioner may receive professional fees for all his efforts in the initial trial trial, the primary goal of every good legal practitioner should be to obtain justice timeously for his client. The pain of de novo on legal practitioners is that the years of labour and toil will yield no result especially in situations where the trial has progressed significantly and sometimes is almost at an end. Even more painful and ruefully resentful is that the legal practitioner has to start his toil all over from almost scratch.
Recommendations
In Okomu Oil Palm Ltd v. Okpame[17] the quintessential (late)Justice P.O. Aderemi (JSC) noted that “…really, justice is a three-way traffic; justice for the Plaintiff who is crying for a redress of the wrong done to him; justice for the defendant who is crying that he should be heard and his defence considered before being ordered to pay the sum claimed against him and also before being mulcted in cost; and finally but very important, justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of the word, has been seen to have been done by the arbiter”. An attempt to balance on a scale, the ends of justice which the legal concept of trial de novo attempts to achieve on the one hand and the inconceivable emotional, psychological, financial and physical deleterious effects the recommencement of trial has on litigants and legal practitioners alike on the other hand, leads to the irresistible despondent conclusion that the notion of justice becomes remote, unrelatable and by a stretch incomprehensible to the affected persons.
Yes, a trial de novo works hardship on litigants especially where the trial has progressed significantly. The thinking behind trial de novo may be good, subject to argument. But fairness is what justice really is about. It will do good and substantial justice that proceedings are dispensed of by a single Judge and timeously too. For justice delayed is justice denied. As a result, it is important to put the concept of trial de novo in context vis a vis our justice delivery system. The following are recommendations put forward for consideration and it is believed that these recommendations will alleviate the burden of trial de novo on litigants.
1. Amendment of existing Laws/Rules of Court
The relevant establishing laws of the trial courts as discussed in this Article are to the effect that proceedings are to be commenced and dispensed of by a single judge. There may need to revisit these laws and make amendments to the effect that when trial has progressed significantly; for instance, where trial is at the stage of filing of final written addresses or the court has adjourned and scheduled a date to deliver judgement, another Judge of the trial court may continue the trial or deliver the judgement that has already been written. It is strongly believed that the pronouncement of the judgement of the trial court by a Judge other than the Judge before whom proceedings commenced will do no injustice to the parties, but rather reinforce the aim to do justice in the matter.
Order 49 Rule 4 of the Federal High Court Civil Procedure Rules, 2019 has been discussed in this Article. It is important to mention that the Federal High Court Civil Procedure Rules 2009 only made provision for the reading and adoption of evidence when the judge is transferred to another division of the court or retires. Order 49 Rule 4 of the Federal High Court Civil Procedure Rules 2009 has been amended in the 2019 Rules to make provision for a situation where the judge of the court is elevated or dead. This is commendable. The High Courts of the states may also need to include a provision similar to Order 49 Rule 4 of the Federal High Court Civil Procedure Rules 2019 in their rules. It is believed that reading and adoption of evidence will save time when a trial starts de novo.
2. Completion of Trials before Elevation or Transfer
It will be good practice if Judges are given a grace period to complete part heard trials before their elevation or transfer. Although the practicability of this suggestion may be questioned, however, for cases that have progressed significantly up to the stage of final addresses and delivery of judgement, it is believed that if Judges are given a grace period to conclude such trials and deliver any judgement that has already been written, it will significantly alleviate the pain of a de novo experience.
For instance, it is standard practice in the UK that before a formal appointment is made to a higher bench, the Judge is given a grace period to complete part heard trials and deliver judgement when judgement has already been reserved. The National Judicial Council and Chief Judges of the courts should ensure that before the formal elevation or transfer of a Judge is communicated or announced, the Judge has completed trials pending before him especially where judgement has been reserved or for trials advanced in stage. A criterion of some sort can be established for sifting through the cases of a Judge being considered for elevation e.g., the age of the case before the Judge, stage of proceeding, type of matter (criminal matters and big-ticket commercial disputes ought to top the list) and so on.
Also, the Chief Judges of the courts should ensure that less cases or a reasonable number of cases are assigned to members of the bench who are close to retirement.
3. Practice Directions
An alternative to amendment of the laws of the trial courts is Practice Directions, it involves a less cumbersome process and may be employed to ease the pain of de novo on litigants. The Chief Judge of the High Court of the State can make Practice Directions stating that Judges of the court can continue a part heard trial or pronounce the judgement of a judge who is transferred, elevated, retired or dead. The courts must put into consideration the requirements of practicability and convenience so that the practice directions comply with the establishing laws of the trial courts.
4. Video Recordings
One of the cruxes of trial de novo is that the judge who will deliver judgement in a trial should have the proceedings commenced before him and witnessed the demeanour of witnesses. It is not impossible for a judge who did not start a trial to go through the records of the court to continue the trial based on the records or even prepare a judgement. It will be more practicable if the trial is video recorded, thus enabling the subsequent Judge seized of the de novo proceedings to watch the video recordings and observe the demeanour of witnesses previously called in the discontinued trial.
It may be huge investment to get all trials recorded and keep the recordings safe. Also, there may be discussions around data and privacy of the recordings. However, it is believed that it will be a worthy investment and a step further in the quest for speedy dispensation of justice. Also, it will give more life to the test of practicability and convenience as required by the laws of the trial courts.
Conclusion
The mischief behind an order that a trial commence de novo may not be entirely bad and it is conceded that indeed, there may be some pros to the concept. The courts have reiterated that it is for the benefit of the parties. However, there should be questions of how much justice is achieved by commencing a trial de novo. If the objective of commencing a trial de novo is not carefully balanced and placed in proper perspective with special considerations for the overall interest of litigants, it is believed that Justice may gradually become a mere optical illusion and a utopian concept to litigants. This does not have to be the case, if deliberate steps are taken to assuage litigants and in particular save precious time.
[1] 2020 LPELR-50952 (CA)
[2] See the case of Nwaosu & Ors v. HFP Engineering Nig Ltd (2014) LPELR -23197 CA pp21-23 paras D-C
[3] 2018 2 NWLR [Pt. 1603] 267 At 322
[4] O. Olalere, H. Benson & I. Oyemade (2021, August30) Effects of an Order of Trial De Novo on Orders Made at the Interlocutory Stage by the Previous Trial Judge. https://www.mondaq.com/nigeria/civil-law/1106424/effects-of-an-order-of-trial-de-novo-on-orders-made-at-interlocutory-stage-by-the-previous-trial-judge
[5] 2012 LPELR -8386 CA
[6] 2014 LPELR-23197(CA)
[7] Cap F12 Laws of the Federal Republic of Nigeria, 2004.
[8] CAP H5, Laws of Lagos State, 2015.
[9] Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999
[10] 2017 LPELR-43356
[11] 2012 All FWLR Pt 617
[12] Ibid
[13] O. Olalere, H. Benson & I. Oyemade (2021, August30) Effects of an Order of Trial De Novo on Orders Made at the Interlocutory Stage by the Previous Trial Judge. https://www.mondaq.com/nigeria/civil-law/1106424/effects-of-an-order-of-trial-de-novo-on-orders-made-at-interlocutory-stage-by-the-previous-trial-judge
[14] 2014 LPELR-23197 CA
[15] O. Olalere et al (2021, August30) Effects of an Order of Trial De Novo https://www.mondaq.com/nigeria/civil-law/1106424/effects-of-an-order-of-trial-de-novo-on-orders-made-at-interlocutory-stage-by-the-previous-trial-judge
[16] MS Idum and J Agaba, Civil Litigation in Nigeria (2nd edn, 2018) 36
[17] [2007] 3 NWLR (Pt.1020) 71