Whether the lower court was justified in holding that the appellants relied on traditional evidence or history in proof of their claim as opposed to numerous and positive acts of ownership. Whether the refusal by the lower court to consider and determine the appellants’ omnibus ground of appeal was right and did the same not constitute a denial of the appellants’ right to fair hearing.

Facts

The plaintiffs based their ownership of the piece of land known as ‘Okporo Ovunwo’ situate on the road leading from Rumuokoro to Rumuaghaolu, Rivers State, on traditional history. They commenced an action in the customary court of Rivers State claiming declaration of title to the disputed land and perpetual injunction restraining the defendants from further acts of trespass.

The customary court dismissed the case and ordered  partitioning of the land not sought by any of the parties. The plaintiffs were aggrieved and appealed to the High Court in its appellate jurisdiction. The High Court dismissed the appeal but reversed the order of partition  by the trial court, yet aggrieved, the plaintiffs appealed to the Court of  Appeal where the decision of the trial court was affirmed but an order for

Rehearing was made based on failure of the High Court to make a pronouncement on the omnibus ground that the judgment of the trial court was against the weight of the evidence. Yet dissatisfied, the plaintiffs appealed to the Supreme Court.

Impropriety of court determining substantive issue at interlocutory stage –

It is not open for a court as a duty at the stage of considering an interim application for injunction to determine any question or points that have arisen in the pleadings or that would arise for resolution in the substantive suit. In the instant case, the Court of Appeal erred by resolving an issue against the plaintiffs and thereafter making an order for rehearing by the appellate High Court.

[Egbe v. Onogun (1972) 1 All NLR 95; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419, (2001) FWLR (Pt. 49) 1567; Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt. 60) 325, (2004) All FWLR (Pt. 232) 1580; Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt.26) 39; A.C.B. Ltd v. Awogboro (1996) 3 NWLR (Pt.437) 383 referred to] [P. 610, paras. A – C J

Thirdly, I take the view that where as herein appellate court as this court has ordered a rehearing of a matter as the instant one for resolution by a lower court as an appellate High Court as here, that is, to hear and resolve the matter de novo, it should not be seen to interfere or to deal with any substantive questions or points that have to be resolved at the rehearing of the matter.

In this way, such an appellate court ought to maintain a level playing ground for the parties pending and during the rehearing of the appeal as here. And one of the ways of doing so is not to have pronounced on any questions to be resolved at the rehearing.

This underscores the charge leveled against the lower court in this matter by the appellants that by resolving issue 1 (one) herein against the appellants in favour of the respondents prior to ordering a rehearing of the appeal before the appellate High Court has served to undermine their case at the rehearing; and also that it is highly prejudicial to their case. By having ordered the matter to be heard de novo for breaching the principle of fair hearing, all the issues in the matter have been put into melting pot to be heard anew.

However, what the appellants seem to be complaining about here is that the lower court has improperly pronounced on issue 1 (one) for determination prior to ordering a rehearing of the appeal before the appellate High Court. In other words, that having made up its mind on the matter, it should have proceeded straight on to order a rehearing, without more; and should not have allowed the appeal in part prior to making an order of rehearing of the matter.

The respondents have conceded the point. I am satisfied that the lower court, with respect, has partly allowed the appeal when it has resolved issue 1 (one) before it against the appellants in favour of the respondents. And that by so having pronounced on issue 1 (one), it has unarguably interfered with, albeit dealt with a vital question which otherwise is properly for resolution at the rehearing of the appeal and thus has erred in pre-empting that issue tantamounting  to not having provided a level playing ground for the parties at the hearing before the appellate High Court.

Having carefully examined the complaints of the appellants in this matter, it is not in doubt that issue 3 (three) raised for determination before the appellate High Court amounts to an attack of the failure of the trial court to evaluate all the evidence adduced by the parties and their witnesses at the trial and weighing the same in the imaginary scale to see which outweighs the other.

By failing to consider the same at all naturally lead  to a miscarriage of justice apart from constituting a breach of the appellants’ right to fair hearing. Thus, it begs the question in the circumstances whether the failure to so resolve the said issue 3 is sufficient to vitiate the instant judgment of the appellate High Court and by the same token the decision of the lower court on the issue. I have no hesitation in my mind in answering the poser in the affirmative”

Proper approach of appellate court where lower court fails to resolve a vital issue –

Where a lower court fails to resolve an issue raised before it which is vital to the resolution of the dispute between the parties, an appellate court will be expected to either order a retrial or resolve the issue itself upon the evidence available if the question of credibility of witnesses would not arise. [Orianwo v. Okene

When a rehearing is ordered and impropriety of appellate court dealing with any matter to be resolved therein -A rehearing of a matter should inter alia be ordered where the evidence has not been properly evaluated as the advantage of having seen and heard the witnesses and watched their demeanours have not been taken.

Once the lower court has ordered a rehearing, it is precluded from dealing with or wading into the matter to resolve any points/issues to be resolved at the rehearing. In the instant case, the Court of Appeal erred by resolving one of the grounds before it, yet making an order for rehearing of the matter.