The Justiciability of the Principle of Trial De Novo: A Review of Udeogu v FRN & 2 Ors

CONTRIBUTOR: OLUGBADE JOHNSON ABIOLA

INTRODUCTION

In recent times, it has been the contention of both members of the bar, and litigants, that the litigation process is fast becoming lethargic. In order to contend with this notion, the court has over the years begun implementation of different approaches to dispute resolution such as the fast-track procedure, arbitration, and other forms of remedies in a bid to make swift the entire adjudication process. In spite of these measures employed by the Court, the sad truth is that the Courts have still remained overwhelmed with an avalanche of cases in need of administration of justice.

This article is an attempt to analyse the principle of de novo vis-a-vis its implication in Nigeria legal parlance, especially as it relates to effective case management, judicial time management and the doctrine of equity, fairness and natural justice.

WHAT IS TRIAL DE NOVO?

Etymologically, the concept of trial de novo precipitates from the Latin word, ‘de novo’ which literally translates as ‘anew’, ‘afresh’, or ‘from the beginning’ in English.^[1] The 12^th edition of the Black’s Law Dictionary defines a trial de novo as, ‘a new trial on the entire case that is, on both questions of fact and issues of law–conducted as if there has been no trial in the first instance’.^[2] The Court of Appeal per Georgewill, JCA in Alh. Ilsiyaku Yakubu Ent. Ltd. v Mr. Aliyu B. Tarfa & Anor, elucidated the meaning and rationale of trial de novo, viz:

In law, a de novo hearing or trial simply put is tantamount to wiping out of the slate and making it clean for a new beginning in the hearing of the case. It cannot and will never in law be tantamount to a continuation of the hearing already done before the previous Judge before its transfer to the present Judge. It is indeed a new dawn and behold all things have become new in terms of both orders and proceedings already done in the previous court, which proceedings no longer defines what is relevant in the proceedings before the present court, except in those excepted circumstances in which the law allows the use of previous proceedings in a present proceeding, including inter alia for the purposes of cross examination of witnesses who had earlier testified.

A trial de novo is not ordered arbitrarily; rather, it is invoked in specific circumstances which Kalu and Okeke enumerated, to wit:

1. The retirement of a trial Judge;
2. The resignation of a trial Judge;
3. The elevation of a trial Judge;
4. The removal or sanctioning of a Judge by the NJC under its disciplinary jurisdiction;
5. The demise (death) of a trial Judge;
6. The transfer of a trial Judge from one judicial division to another;
7. The transfer of a pending case from the one Judge / Court to another, and
8. Upon the order of an appellate Court in appropriate/deserving situations, particularly where an appellate Court declares a proceeding a nullity.^[3]

The rationale behind de novo trials is to ensure that litigants are granted the constitutional right to fair hearing before a properly constituted impartial court of competent jurisdiction.^[4] Consequently, in the interest of justice, and to ensure that all sides are fairly heard, the Chief Judge of the relevant court or the appellate court will order that the trial is conducted afresh under a new Judge. This renders nugatory previous proceedings,^[5] the records thereof,^[6] and the evidence admitted thereunder.^[7]

A REVIEW OF UDEOGU V FRN & 2 ORS

The case of Udeogu v FRN & 2 Ors^[8] is a landmark Supreme Court decision stemming from an appeal of the earlier decision of the Federal High Court in Federal Republic of Nigeria v Orji Uzor Kalu & 2 Ors.^[9] Therein, the 2nd Respondent, Orji Uzor Kalu, and the Appellant were charged with money laundering offenses before the Federal High Court. The trial was presided over by Hon. Justice M.B. Idris, who, nearing the conclusion of the matter, was elevated to the Court of Appeal. To prevent the case from starting afresh, the President of the Court of Appeal issued a fiat pursuant to Section 396(7) of the Administration of Criminal Justice Act (ACJA) 2015.^[10] This provision purportedly allowed elevated judges to return to the High Court to conclude part-heard criminal matters,^[11] aiming to curb judicial delay.

However, the Supreme Court took a decisive stance on the constitutionality of this provision. The apex court held that Section 396(7) of the ACJA was ultra vires the Constitution of the Federal Republic of Nigeria.^[12] The Court reasoned that once a judge is elevated to an appellate court, they lose the jurisdiction to sit as a High Court judge. Consequently, Justice Idris lacked the requisite standing to continue the trial. By striking down the provision, the Supreme Court reinforced the principle that statutory innovations cannot override the clear jurisdictional boundaries established by the Constitution.

As a direct consequence of the trial being declared a nullity, the Supreme Court ordered a trial de novo. This order effectively “wiped the slate clean,” mandating that the entire case be reassigned to a different judge of the Federal High Court to be heard from the beginning. Despite the years already spent in litigation and the substantial evidence already recorded, the principle of de novo required all witnesses to be recalled and all evidence to be re-tendered. This ensured that the new presiding officer could personally observe the witnesses’ demeanor, upholding the sanctity of a fair trial.

IMPLICATIONS OF TRIAL DE NOVO ON CASE MANAGEMENT IN THE NIGERIAN LEGAL LANDSCAPE

The application of the principle of trial de novo, while rooted in the protection of constitutional rights, carries profound and often grueling consequences for the Nigerian judiciary which are enumerated and expatiated below:

1. Inordinate Delay and Judicial Lethargy

The most visible casualty of a trial de novo is the swift administration of justice. It is a trite legal maxim that “justice delayed is justice denied.”

When a trial starts afresh, years of litigation, significant financial resources, and precious judicial hours are instantly liquidated. A prime example is the aftermath of the Udeogu v. FRN decision.^[13] Following the Supreme Court’s nullification of his initial conviction, Orji Uzor Kalu has successfully resisted a fresh trial by filing various applications, including pleas of double jeopardy (autrefois convict).^[14] Consequently, a case that began in 2007 remains unresolved and active in court today, nearly two decades later,^[15] illustrating how de novo orders can lead to an almost infinite litigation loop.

2. Loss of Confidence in the Justice System

For the average citizen, the sight of a high-profile case being “restarted” after a decade of trial is disheartening. This creates a perception that the legal system is a labyrinth designed for technicalities rather than the pursuit of truth. When litigants see that a judges’ promotion or transfer can unilaterally erase years of their life spent in court, the sanctity of the bench is eroded. The public increasingly views the judiciary not as a beacon of resolution, but as a source of frustration, leading to the belief that the system is skewed in favor of those who can afford to prolong proceedings indefinitely.

3. Increased Resort to Self-Help

Perhaps the most dangerous implication of the trial de novo syndrome is the breakdown of social order. When the formal legal landscape becomes synonymous with stagnation and “starting over,” litigants lose faith in the court as an arbiter. This disillusionment often drives individuals to resort to self-help, extra-judicial settlements, or even violence to resolve disputes. In a society where people feel the law is too slow to protect their interests, the “jungle justice” of self-help becomes an attractive, albeit chaotic, alternative to the procedural treadmill of the Nigerian courts.

CONCLUSION AND RECOMMENDATIONS

In conclusion, the principle of trial de novo remains a double-edged sword in the Nigerian legal system. While it serves as a vital safeguard for the constitutional right to a fair hearing, ensuring that the judge who decides a case is the one who saw and heard the witnesses—its rigid application often leads to the “Sisyphus effect,” where the stone of justice is rolled back to the bottom of the hill just as it nears the summit.

To address the challenges posed by the de novo principle without sacrificing the integrity of the judicial process, the following measures are recommended:

• Constitutional Amendment: There is an urgent need to amend the 1999 Constitution of the Federal Republic of Nigeria to explicitly allow elevated judges a “transitional window.” This would provide constitutional backing for them to conclude part-heard matters within a specific timeframe (e.g., six months), effectively overriding the jurisdictional barrier identified in the Udeogu case.
• Adoption of Technology and Record Preservation: Legislation should be enacted to allow a new judge to adopt the certified true transcripts and video recordings of a predecessor, provided the parties consent, thereby limiting de novo trials to only the most essential circumstances.
• Stricter Judicial Posting Policies: Judges nearing elevation or retirement should not be assigned complex, high stakes matters likely to last several years, thereby reducing the frequency of abandoned trials.

REFERENCE

1. Uwadineke C. Kalu and Odinakachukwu E. Okeke, ‘Trial De Novo and its Impact on the Constitutional Safeguard of Trial Within a Reasonable Time in Nigeria’ (2020) 2(1) IRLJ 150–157; Governor of Borno State & Anor. v Ali (MNI) & Ors. (2014) LPELR-23544(CA) p 8, para A. ↑
2. Bryan A. Garner (ed), Black’s Law Dictionary (12^th edn, Thompson West 2025), 1644. ↑
3. Kalu and Okeke (n1), 151. ↑
4. Levi P. Bolarinwa and Temitope A. Oluwabunmi, ‘Issues with De Novo Trial of Commercial Cases in Nigeria’ (2022) 9(3) Nnamdi Azikiwe University Journal of Commercial and Property Law 165–176. ↑
5. Bakule v Tanerewa (Nig.) Ltd. (1995) 2 NWLR (Pt. 380) 728, para. G. Therein, the Court of Appeal held that, ‘the effect of starting the case afresh…. is to sweep clean all previous proceedings in the case before Abdullahi, J.’ ↑
6. Ibid. ↑
7. Ibid. ↑
8. (Unreported) Suit No: SC.622/2019, Supreme Court, 8 May 2020. Access the judgment here: https://media.premiumtimesng.com/wp-content/files/2020/05/orji-uzor-kalu-sc-judt.pdf ↑
9. (Unreported) Suit No: FHC/ABJ/CR/JS/07, Federal High Court Lagos Judicial Division. ↑
10. ACJA 2015, s 396(7). ↑
11. Ibid. ↑
12. CFRN 1999 (as amended), Cap. C23, LFN 2004. ↑
13. (Unreported) Suit No: SC.622/2019, Supreme Court, 8 May 2020. Access the judgment here: https://media.premiumtimesng.com/wp-content/files/2020/05/orji-uzor-kalu-sc-judt.pdf ↑
14. Orji Uzor Kalu v FRN & 2 Ors (Unreported) Suit No: FHC/ABJ/CS/73/2021, Federal High Court Abuja Judicial Division, 29 September 2021. ↑
15. Kesiena I. Oghoghorie, ‘Udeogu, FGN, Orji Kalu & Anor: Where do we go from here?’ Vanguard (15 June 2020). https://www.vanguardngr.com/2020/06/udeogu-fgn-orji-kalu-anor-where-do-we-go-from-here/ accessed 26 January 2026. ↑