When Will an Order of Retrial Be Made?

CASE TITLE: OPADIJO & ANOR v. ALUKOSO & ORS (2025) LPELR-80814(CA)

JUDGMENT DATE: 2ND APRIL 2025

PRACTICE AREA: PRACTICE AND PROCEDURE

LEAD JUDGMENT: UWABUNKEONYE ONWOSI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Civil Procedure.

FACTS:

This is an appeal against the judgment of High Court of Justice, Oyo State, Ibadan Judicial Division.

The Appellants (Claimant at the trial Court), by a Writ of Summons claimed the following reliefs at the trial Court as follows:

(a) The DECLARATION that the claimants are the beneficial owners and entitled to grant of right of occupancy in respect of all that parcel of land measuring approximately fifty (50) acres, situated, lying, and being at Arinkinsin Village, Alaaka Area, Ido Local Government Area, Ibadan, Oyo State of Nigeria.

(b) DECLARATION that the Defendants acts of entering upon portions measuring three (3) acres out of the said claimants family land without authority, consent, knowledge, or approval of the claimants constitute trespass.

(c) AN ORDER setting aside any purported sale or transaction in respect of any portion of the said three (3) acres of land between the Defendants and any other source different from the claimants family for being nullity.

(d) PERPETUAL INJUNCTION restraining the defendant, their agents, servants, privies, or however they are called from entering upon the said land.

At the conclusion of the trial, Counsel filed their respective final written addresses, and judgment was delivered in favour of the Respondents.

Dissatisfied, the Appellant appealed.

ISSUE(S) FOR DETERMINATION:

The Court adopted the issues formulated by the Appellant, viz:

Whether or not the trial Court properly considered and evaluated the Appellants case before arriving at its decision, the evidence of a witness (CW5) was totally omitted, having not formed part of the evidence considered by the trial Court.

DECISION/HELD:

In conclusion, the Court set aside the judgment of the lower Court. The suit was remitted back to the Chief Judge Oyo State to be reheard by another Judge.

RATIOS:

• JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO – Instances where an order of retrial will be made
• COURT – APPELLATE COURT – Duty of an appellate court when hearing appeals
• EVIDENCE – DOCUMENTARY EVIDENCE – Whether documentary evidence must be specifically pleaded to be admissible in evidence

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