Rethinking trial De Novo in Nigeria

TRIAL de novo means “afresh” or “beginning again”. Under Nigerian Laws, Practice and Procedure, a trial de novo comes into existence where a judge of a court is either deceased, elevated, retired, transferred or removed from his judicial office. The banal practice in Nigeria, following the creation of any of the mentioned events, is for the head of such court to reassign case files of the erstwhile judge to another judge of the court who must try the case afresh notwithstanding the stage of the trial.

Looking at it, the mentioned events will establish the fact that such judicial officer is no longer a member of such court and it is the law that composition of judges is a crucial factor in determining jurisdiction.  However, from a constitutional standpoint, there are no express provisions in the ground norm that addresses or even mentions cause and effect of elevation, transfer, death, retirement, etc. with a trial de novo in view. It can be said that since the Constitution vests law-making powers in the legislature, subsequent statutes made by the legislature will be valid so long as not found inconsistent with the Constitution.

Notwithstanding what has been said above concerning the compulsory nature of the new judge in trying the case afresh, Order 49 Rule 4 of the Federal High Court Rules 2009 makes provision for possibilities of part-heard trials of the erstwhile Federal High Court judge and its implication under law. We would understand from this provision that the Federal High Court recognizes part-heard trials only in a situation of retirement or transfer of the erstwhile judge. It does not extend to death, removal or elevation of the judges. Also, regardless of the retirement or transfer of the erstwhile judge who part-heard the cause or matter, the trial will invariably start afresh though there is such a possibility for the new judge to read out pieces of evidence from the records of the erstwhile judge to the hearing of the parties so as to confirm if parties are relying on same or otherwise. A logical implication is that parties can choose not to rely on past records and just align themselves with an entirely new narration and evidence before the new trial judge.

Away from the mentioned events where trial de novo often thrives, in the event that an appellate court is unable to draw conclusions owing to a perverse judgment of the trial court, a retrial order may be given which implies starting the suit afresh. However, appellate courts are often reluctant to granting a retrial. They are often guided by certain salient considerations such as: whether the plaintiff has established his case by raising the probabilities in his favour; or  whether the order of retrial will enable the defendant to improve his position during retrial to the prejudice of his opponent; or  whether the litigation will be unnecessarily prolonged; or whether the proceedings are conducted by the trial court largely in conformity with rules of evidence and procedure; or that there was no substantial irregularity in the conduct of the case.

There is often a battle for cases to move up from trial courts to the Supreme Court especially because of the snail pace of the justice delivery system. A look around reveals the steady growth of arbitration and while it is not a bad idea for parties to consider other forms of dispute resolution mechanisms as a matter of choice, litigation should not be the sacrificial lamb on the ground that it is impossible or impracticable to salvage the decay in trial advocacy. It is not to be canvassed here that trial de novo is bad for all intents and purposes – by implication, this author advocates for a further infringement on its usability to the extent that functional justice prospers.

The practice in most High Courts of Nigeria is that a suit starts afresh once the erstwhile judge is transferred to another division (as well as for other earlier mentioned events) and if we think deeper as to the rationale, there will only be little to imagine. In the minutest of its rationale, there is the argument that the new trial judge might be more inclined to rendering inadmissible already admitted documents. This worry should be short-lived as the trial judge is in no way boxed into contemplations of legal impossibilities like reviewing the decision of the erstwhile learned trial judge; the judge can always expunge documentary evidence from his record during judgment stage as a mere marking of exhibits does not amount to proof of the case.

A decision to start a case afresh because of all mentioned events above might not raise brows if the cause or matter is yet part-heard. In this case, parties may not have suffered much time loss as the case was still in its preliminaries. It is submitted here that if the case has been part-heard, then it works hardship on the litigants for the case to start afresh – the convenience of the Bench cannot be placed on a higher pedestal at the expense of ensuring that justice is seen to be done between litigants. One of the mentioned events that sure divided the legal community was that of elevation of judges to higher courts while there remained cases on the judges’ docket; the implication is that the part-heard matter loses its life with every memory of it definitely wiped out.

On the issue of another judge delivering the judgment of an erstwhile judge of that court, contemplating the mentioned events, it is interesting that a trial de novo could still be ordered on grounds that the judgment could not have been valid as the erstwhile judge ceased to be a member of the court.

The reliance on the practicability and convenience test in ruling that another judge could deliver the judgment of the erstwhile judge was sound and possible only because the Court was swayed by its sentiments and the need to secure a value judgment – laudable and dry behind the ears, definitely. Moreso, it could also make for good logic if the practicability and convenience test be extended to earlier mentioned events considering that s. 23 Federal High Court Act does not limit the test to delivery of judgments – argued here is that if a judge is elevated, transferred, deceased or removed, another judge of the court could stand in just so that justice does not become delayed. It is good that most laws of Courts have a similarly worded s.23 but the reasonable fear is that a sound argument could pop challenging the inheritance of the erstwhile judge’s case files when he ceased to be a member of the court.

It is submitted that the problem may not lie with the constitution, really – especially as cannons of interpretation are always on standby to ensure statutes are brought in conformity with public policy and convenience. If we must mitigate the hardship caused by trial de novo, we should consider the following key points:

Firstly, all Superior Courts of Record should have practice directions regulating instances of the earlier mentioned events as it is not expressly catered for in the Constitution and any statute book. There should be incorporated into the practice directions the provision that elevated judges could conclude part-heard trials; also, a provision enabling another judge to inherit the part-heard trials should be incorporated bearing in mind the practicability and convenience test. The logic that an ‘elevation of a judge makes for no jurisdiction’ should put in perspective the fact that it is possible for an elevated judge not to be criticized for serving two courts once it is seen that though he was appointed, he was yet to either take the oath of allegiance or declare assets vide s. 290 CFRN. The appointing authority should make sure that the elevated judge be given a grace period to conclude pending trials on his docket before resuming or functioning as a Justice of a higher court- the time frame being a reasonable time.

Secondly, a way to cure the mischief will be to amending relevant provisions of the statutes regulating the Superior Courts of Record such as the Federal High Court Act or other High Court Laws of States. This in itself will forestall, in parts, the occurrence of unending or prolonged litigation.

The third and final point would be to amend the Constitution and clear the air ultimately as that will avoid or end the reign of rigid judgments of the Supreme Court on this matter since it is hardly the case that alters of technicalities are no more worshipped. The call for an outright amendment to reflect the mentioned events is put last because of the cumbersome procedure in effecting an amendment of the Constitution. It is however hoped that all arms of government, particularly the judiciary and their fervent love for trial de novo, rethink this concept and work towards dispensing justice to all and sundry remembering always that Justice delayed is Justice denied.

 

• Okocha Esq. sent this piece via obedokocha01@gmail.com

 

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