MRS. C.O. OTOKI v. OYEWOLE EDUN ALAKIJA (2012)

MRS. C.O. OTOKI v. OYEWOLE EDUN ALAKIJA

(2012)LCN/5342(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2012

CA/L/42M/09

RATIO

EVIDENCE: DISTINCTION BETWEEN THE LEGAL ADMISSIBILITY OF EVIDENCE OF DOCUMENT AND THE WEIGHT ATTACHED TO THEM

The legal admissibility of evidence or a document is different from the weight to attach to those evidence. In respect to documentary evidence, the weight to attach to them is a different consideration from the power to admit them. See Motanya vs. Elinwa (1994) 7 NWLR Pt, 356) 252. In the same token the power of the court to receive such evidence oral or documentary deals with admissibility, which stems from relevance. Having exercised the later power to admit relevant evidence, the trial court still had to await and execute its duty of assessment and ascription of probative weight to the evidence. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

EVIDENCE: WAYS OF CHALLENGING EVIDENCE LED

After all a challenge to evidence led is not only by questions in cross examination. Such challenge can come from objections to evidence led in examination in chief. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

EVIDENCE: REQUIREMENT IN RESPECT OF DOCUMENTS

EVIDENCE: PURPOSE OF CROSS EXAMINATION

The purpose of cross examination is to contradict, destroy or discredit a witness and to water down the case of the adversary. A party’s case is made on his pleadings and evidence in chief and not necessarily in cross-examination.

See Onwumere v. Agwumadu (1987) 3 N.W.L.R. (pt.62) 673; Emegokwe v. Okadigbo (1923) 4 SC 111 Offorlette v. State (2002). 12 N.W.L.R. (pt.681) 415 at 436.

Furthermore, cross examination is used to test the accuracy, veracity or credibility of a witness in order to discover who he is and whether his evidence should be believed or not. Where a party had ample opportunity to cross examine a witness and he fails to do so within the time allowed by the court, he cannot thereafter complain after the said witness had died. It is not the law that the court must discard or strike out such evidence. It is however the duty of the court to determine what weight to be attached to such evidence and not to strike it out simply because the witness was not cross examined. PER JOHN INYANG OKORO, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

MRS. C.O. OTOKI Appellant(s)

AND

OYEWOLE EDUN ALAKIJA Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the Lagos State High Court sitting at Ikeja Judicial Division whereat His Lordship Honourable Justice Ade Alabi J. sitting at the Ikeja Judicial Division on the 1st July 2008 held
(1) that there was no need for a specific order to expunge the testimony of a deceased witness D.W, Chief Rhodes
(2) that there was no need for a motion on Notice for the purpose of expunging the evidence of D.W. which had not been cross examined upon.
(3) That the expunging of the evidence of DW was automatic by operation of law as it was a matter that bordered on fair hearing.
The background facts that led to this Ruling and appeal are as follows:
The Respondent who was the Plaintiff at the trial court had sued the Defendant Chief Babasola O. Rhodes (SAN) for Sundry claims as contained in the statement of claims at page 69 of the record of appeal. An amended statement of claim was subsequently filed. It is contained at pages 70 74 of the Supplementary record of appeal. The Defendant also counter claimed. The Defendant, a legal practitioner and Senior Advocate of Nigeria who was a solicitor to the Plaintiff/Respondent in respect of the transaction that led to the suit testified as DW, after the closure of the Plaintiff’s evidence.
After series of adjournments occasioned mostly by the Plaintiff counsel’s absence in court and the court itself on one occasion the cross examination of the DW was stalled as a result of his death.
The Respondent’s learned counsel applied for an order expunging the evidence of DW from the record of the court on the ground the he had not been cross examined before his death and that the evidence cannot be used in the determination of the suit as it will amount to a breach of the right of fair hearing and against the Plaintiff.
It is against this Ruling that the Appellant who was substituted for the Deceased Defendant who was (the DW1 at the trial) has lodged this appeal. The Notice of Appeal which is found at page 65 of the initial record are as follows:
1. The learned trial Judge erred in law when he held that “the evidence of the Defendant’s dead witness who the Claimant’s counsel did not cross examine is automatically expunged by operation of law.
(a) The evidence of a deceased witness which was not cross examined before his death is valid and admissible in law.
(b) The Claimant/Respondent’s counsel was slothful and afraid to cross examine the defence witness when he had the opportunities to do so.
(c) The Claimant/Respondent’s counsel absented himself from court when he ought to cross examine the defence witness.
(d) The rule of cross examination is not mandatory but at the election of the adverse party.
(e) Defendant’s witness was not cross examined because the Claimant/Respondent refusal to cross examine him when they had the opportunities to do so.
2. The learned trial Judge misdirected himself when he held that the concession he granted the Claimant for a last chance to cross examine the Defence sole witness will keep the right of the Claimant to cross examine unabated even at the death of the defence witness.
(a) The decision of the trial court to grant the Claimant one more chance to examine the Defendant witness will not take away the fact that the claimant had the opportunities to cross examine the Defence witness but refused to so do.
(b) The Claimant was absent at the next adjourned date (28th September, 2004) which was the last chance granted him by the trial Judge.
(c) The death of the defence sole witness was not to avoid being cross examined.
Further grounds to be filed upon the receipt of the records of appeal.
RELIEFS SOUGHT FROM THE COURT OF APPEAL.
(a) An order setting aside the ruling of the lower court made on 1st of July 2008
(b) An order directing the trial Judge to give the evidence of the Defendant’s sole witness its full probative value.”
I observe that the Notice of Appeal describes Mrs. Clara Oye Otoki wrongly as Defendant/Applicant on the said Notice of Appeal contained on page 65 66 of the Record. Counsel preparing legal Documents for filing in our court should appreciate that a solicitor’s work is a serious business. They ought to ensure that they are meticulous and certain, so as to avoid mistakes that may not be viewed with understanding but which would rather compound the disdain, scorn and sometimes unwarranted criticisms been heaped on the legal practice and the courts now. These are days of meticulous scrutiny such that uncommon and unexpected description of a party who is an Appellant herein being described as an “Applicant” may provide cheap and handy, justification and anchor for the misgiving usually expressed.
Indeed, it may justifiably be seen as an element or signpost of recklessness and want of diligence on the part of a counsel.
Be that as it may, I should state that the record of appeal was deemed compiled and transmitted on 21-10-09, while a supplementary record was transmitted on 5/10/10 following the order of court granting leave to file additional documents as supplementary records of appeal and a deeming order to that effect, Appellant filed his Brief of Argument on 19/11/10. Respondent filed no Brief. The Appellant was, therefore, granted leave on the 14th of June, 2011 to have this appeal set down for hearing and for the hearing of the appeal upon the Appellant’s brief alone. The Application was granted on the 14th of June, 2011. The Appellant’s Brief of Argument was settled by Olufemi A. Olulowo and dated 18/11/10 and was filed on 19/11/10. At the hearing of this appeal, Appellant’s learned counsel urged the court to enter Judgment for his client.
The Appellant formulated two issues for the determination of this court.
They are as follows:
1. Whether the evidence of DW1 is valid in law.
2. Whether it is right to expunge the evidence of DW1.
The arguments on the 1st issue formulated can be found at paragraphs 2.
12 – 2. 15 on pages 4 – 5 of the Brief of Argument. Submitting on the first Issue, learned counsel, posed the questions as to what the status of the evidence of DW1 should be and asked if the evidence was admissible in law or not, and further what weight may be attached to the evidence.
Learned counsel argued that the evidence of DW was relevant and therefore admissible for the defence to the main claim and in support of the counter claim; that the evidence was admissible in determining the questions in the suits before the court.
He submits that even if a witness in a suit dies before he was cross examined, his evidence in chief is admissible though its weight may be slight. The cases of R.V. Doolin JEBB CC 123, Ibadan Vs. Abadom, 24 Beav. 243 and People Vs. Cote 43 NY 508 cited with approval in phipson on Evidence 12th Edition paragraph 1591 at pages 656 and 658 were referred to and relied upon.
Learned counsel, submitted that the evidence of DW1 being admissible only had the hurdle of determining what weight to be ascribed to it. On the question of the weight, learned counsel submitted that, this depended on the circumstances of the case. It was pointed out that by section 189 of the evidence Act, the adverse party may cross examine the witness of his adversary. That it was a discretionary matter and the Respondent’s counsel who had dragged on three occasions without cross examining DW1 could not be compelled to do so. That the Evidence of DW1 admitted was valid and it was for the trial Judge to ascribe whatever weight deemed justified on it.
Learned counsel further submitted, that for the foot dragging of the learned counsel to the Respondent, up to the point of the death of DW1, it was obvious that the Respondent did not desire to cross examine the DW1.
That having had ample opportunities to cross examine the deceased witness (i.e.DW1), but not doing so will amount to failure to cross examine a witness. Learned counsel submitted that failure to cross examine a party or witness on any matter amounted to a tacit acceptance of the truth of the evidence of the witness. The case of Oforiete Vs. The State (2000) 12 NWLR (pt. 681) 451 page 91 paragraph D – E was referred to in support.
Referring to the Supreme Court decision in Okwa IWEREBOR & ORS. (1969) NSCC, learned counsel reiterated his submission that since the Respondent had the opportunity of cross examining the DW1, but wasted the opportunities, the fact that the use of that opportunity was not binding or mandatory, the subsequent death of the DW, did not render the admitted evidence invalid. That the evidence being valid and admissible should be accorded its full probative value.
On this narrow issue I think the question of the invalidity of the evidence of DW1 does not arise at all. The said witness has not been shown to be an incompetent witness either on the ground of age, insanity or any of the disqualifying grounds under the evidence Act. There was no objection taken to his evidence being led. Being a competent witness, his admitted evidence forms part of the record of proceedings and shall be used in determining the suit. What is more, the DW1 as a defendant had filed a cross action i.e. a counter claim. The said action had not been concluded as yet. In law, a counter claim is a distinct and separate action, independent of the main claim. The counter claimant (DW1) had asked for Judgment per his counter claim. Wherein lies the Justice if his evidence is expunged peremptorily by so called operation of law or order of a court without a Judgment. In Ogbonda Vs. Eke (1998) 10 NWLR (Pt.568) 73 this court stated thus:
“It is not to be doubted that a counter claim is a separate action which for convenience a defendant may decide to subjoin to his statement of defence. It has all the features of a claim, hence a Plaintiff will need to file a defence to a counter claim and indeed if need be subjoin a counter claim to his defence. See also Ogbona Vs. Attorney General, Imo State (1992) 1 NWLR Pt. 202 647 at 675. The separateness of a counter claim is such that a Plaintiff may counter claim to a counter claim. See Entom Gibss & Co. Vs. Neville (1900) 2 QB 787.
The counter claimant had asked that the Plaintiff’s suit upon which he had reacted by his responses and evidence be dismissed as being frivolous.
The court was entitled to proceed with the case to the end as after all, there was a substitute and competent Defendant/Cross Claimant on record.
To expunge the testimony of DW1, would amount to striking out or foreclosing his counter claim. This will be in breach of the right to fair hearing. See my unreported decision in Appeal No. CA/L/756/08 Benjamin Maduabuchi Dim Vs. A.G. Lagos State of 5/3/12. The evidence of DW1 was essential in the proof of his distinct counter claim as filed. Documents had been tendered and some oral evidence led. At least those that were proffered without objection cannot be discountenanced in the evaluation of evidence in the determination of the main suit and cross action (i.e. counter claim). Even where objection were taken if they were not over ruled, i.e. if objections were not sustained or even if sustained, can a court of justice close its eyes and disregard such evidence? No. certainly, cross examination is a potent weapon or instrument in the hands of a party to challenge his opponent’s case and seek to weaken it and/or strengthen its case. See WAEC Vs. Shionebo (2000) 12 NWLR (Pt.994) 258 at 267. See also Onwumere Vs. Ogwunedu (1987) 2 NWLR Pt.62.
However, the Plaintiff had the choice or discretion to elect to cross examine or to abstain. It is, however, the court’s obligation to make an evaluation and draw all inferences permitted by law in coming to a decision one way or the other on the evidence already led.
The evidence led does not cease to be evidence in law, merely because there was no cross examination thereon.
However, the refusal or neglect by the respondent as Plaintiff to utilize or exploit this opportunity cannot be used to truncate the other party’s claim or defence by a precipitate decision to strike out or disregard such evidence.
In Appeal No. CA/L/756/2008 Benjamin Maduabuchi Dim Vs. Attorney General of Lagos State the decision of this court sitting in Lagos on 5/3/12 wherein I had held that the decision to refuse amendment when the counter Claimant’s suit was very Much alife was precipitate and shows that justice was made a one way affair. To strike out or disregard the evidence of DW1 or hold that it did not exist in law, for want of cross examination thereon, is a precipitate decision. The Judge’s duty to expunge evidence or to disregard same only arises at the conclusion of the hearing and not before that; and only upon proof that it was wrongly admitted or in admissible or prohibited by law. The legal admissibility of evidence or a document is different from the weight to attach to those evidence. In respect to documentary evidence, the weight to attach to them is a different consideration from the power to admit them. See Motanya vs. Elinwa (1994) 7 NWLR Pt, 356) 252. In the same token the power of the court to receive such evidence oral or documentary deals with admissibility, which stems from relevance. Having exercised the later power to admit relevant evidence, the trial court still had to await and execute its duty of assessment and ascription of probative weight to the evidence. Whether it had passed through the crucible of cross examination or not it is instructive that in ascribing weight to evidence led at the evaluation thereof, the court, in respect of oral evidence not challenged by the opposite party, must accept as establishing the facts stated therein. After all a challenge to evidence led is not only by questions in cross examination. Such challenge can come from objections to evidence led in examination in chief.

In respect of documents, the ascription of probative weight must be made before deciding whether it has established the facts stated therein. See Nigeria Insurance Ltd. Vs, Emoh (1990) 3 NWLR (Pt.139) 374.
The evidence of DW1 therefore stands and remains valid subject to its evaluated weight to be determined at the conclusion of the trial and evaluation of evidence led. Having been properly led and admitted, the DW1 evidence is valid and shall only be assessed for the ascription of probative value at the close of the case and when considering the Judgment.
The Issue No. 1 is therefore answered in the positive. That is to say, the evidence of DW1 is valid in law. On the Issue No. 2. This issue asks the question whether it is right to expunge the evidence of DW1. The learned trial Judge had held thus:
I have gone through my records, and found that Rhodes could not be cross examined before he died. Learned counsel for the Defendant, Mr. Olulowo told the court that he had filed a counter affidavit and at the prompting of the court, Mr. Olulowo cited the case of Kuusu vs. Udom (1990) 7 NWLR pt. 127 at page 427 … After hearing from counsel on both sides, I hold the view that the correct position is that since the witness could not be cross examined, one way or the other, his evidence cannot be relied upon there is no need for a specific order to expunge such testimony. It is automatic … It is by operation of law connected with fair hearing”
Learned counsel submitted that while the Ruling is hinged on fear of alleged breach of fair hearing, that it must be appreciated that the right of fair hearing is a constitutional issue and meant for the benefit of both parties. That whilst the right of fair hearing must not be breached in any proceedings, its applicability has been well settled in a plethora of decisions.
That the Judge must give the parties equal opportunities and not unduly incline towards one side even when the side has neglected to exercise its right of cross examination. He cites the case of Newswatch Communications Ltd. Vs. Atta (2000) 7 MJSC 88 at 107 – 108 paragraphs A-A wherein appears the following:
“The Constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy double carriage way, in the con of both the Appellant and Respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be in justice. It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or atmosphere by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn round to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing. Learned counsel submitted that while the Claimant/Respondent had the right to cross examine the DW1, but that that right was not one that existed in perpetuity and unabated, That his failure to cross examine DW1 after series of opportunities did not make it a breach of fair hearing to use the testimony of DW1 in the proceedings. That the learned trial Judge to the contrary was in breach of the right of fair hearing against the Appellant when he considered the evidence of DW1 as expunged. Learned counsel argued further that it was a greek gift, when the learned trial Judge stated at page 50 of the Record of appeal in the said Ruling as follows:
“We have to give Mr. Olulowo another opportunity … do you, in view of ruling intend to call any other witness?”
That the trial Judge had ironically closed the case of the Defendant/counter claimant/Appellant and ordered final addresses to be filed before the Respondent applied to expunge the evidence of the Appellant’s sole witness. Learned counsel wondered of what use will any other evidence for the DW1 as counter claimant and defendant be if his evidence had been expunged. That the DW1 had been personally accused of forgery and fraud by the claimants/respondent while he had also counter claimed. That any other evidence for the defence can only strengthen or corroborate his evidence and no more.
It was finally submitted on this issue that the fact that a witness is not cross examined will not perse constitute non compliance, with the rules of natural justice. That failure to take advantage of the opportunity did not vitiate the evidence led. KUUSU v. UDON 1990 1 NWLR Pt.127 421 SC referred.
I have carefully perused the record of appeal in this matter and in particular the supplementary record of appeal containing the proceedings of the trial court and I am firmly of the view that there is nothing in the record to suggest that the right of fair hearing of the plaintiff was in any way breached. The twin pillars of the right of fair hearing which postulate that (1) one shall not be a Judge in his own cause and (2) that all parties must be given a right of hearing was satisfied in the proceedings leading to the examination in chief of DW1. Evidence was led without interference by the court. The plaintiff had the plenitude of the right to cross examine DW1. Indeed, the DW1 as a counter claimant had closed its case and prayed the court to enter judgment in his favour as claimed in the counter claim. The matter was adjourned after the conclusion of hearing of the defence which started on 23/1/2003 and ended on 18/6/2003. See pages 27 -33 of the supplementary record of appeal. Cross examination could not take place on the following dates i .e. 22/10/2003, 23/10/2003, 20th and 21st January, 2004, 2nd and 3rd June, 2004. It is patently obvious from the record of appeal, that the failure to cross examine the DW1 was the self making of the plaintiff/respondent in this case. The learned trial judge bent over severally to accommodate the plaintiff in an effort to ensure that DW1 was cross examined.
The adjournments were too several and unsolicited and unjustified such that in my view it amounted to an over indulgence and in breach of the defendant/appellant’s right of fair hearing. The Appellant had prayed that the plaintiff’s case be dismissed and judgment entered for the counter Claimant/Defendant.
I agree with the learned counsel for the appellant when he submitted that the right of fair hearing is for both parties and not only for a claimant.
The court in this matter, with respect, invoked the right and protected it to a ridiculous end in favour of only the Respondent. The Respondent failed to take advantage of the right to cross examine. He cannot complain. The courts cannot be the partial guardian of his right which he may and did in fact choose not to excise.
A party should not be allowed to dribble his opponent by whatever antics in a litigation as litigation is not a game of chess, but an open and transparent effort at ensuring that Justice is done. No party should, in whatever guise, be it delay or other ploy be allowed to frustrate or cheat the other side out of justice.
The unpolluted stream of justice was allowed to be mired in the circumstances of this case. The authorities in the case of Newswatch communications Ltd vs. Atta supra is apt and applicable to the facts and circumstances of this case.
The Respondent could not in law be compelled to cross examine the DW1. The inference to be drawn was so obvious that the Respondent was undesirous of cross examining him.
As I stated earlier in this Judgment, the rebuttal of a witness’s evidence must not be by cross examination alone. It may be by any other means, such as objection and or rebuttal evidence. All of these in any case, are not compellable exercises, see Kuusu vs. Udom 1990 1 NWLR (pt.127) 421 wherein Nneamaka-Agu, J.S.C. at page 448, par F – G stated thus:-
“I believe it to be the correct position of the law that no party can be compelled to cross examine a witness called by his adversary. All that Tribunal is required to do is to provide each party with the opportunity to do so. It is left for the party to either cross examine the witness or to, in any other lawful manner, rebut or controvert the evidence given by his adversary’s witness.”
If that is the position of the law, as it should be, then obviously, the expunging of the evidence of DW1 or deeming it as expunged by operation of law amounts to the breach of fair hearing and has occasioned a miscarriage of justice.
Clearly, from the facts of the case at trial and proceedings, the Defendant/Appellant’s right to have his evidence of DW1 remain on the record for evaluation, was breached.
Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of an individual guaranteed by the constitution, the breach of which will nullify the proceedings in favour of the victim. See Gbadamosi Vs. Dairo (2007) Vol. 145 LRCN 508 Par 00 per TOBI J.S.C. This breach of fair hearing herein has led to a miscarriage of Justice. Miscarriage of Justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice to the party alleging it. (it would appear that the phrase more favourable underlined by me for emphasis as appearing in the aforequoted decision of the Supreme Court is an typographical error. It would appear to mean “reasonable probability of unfavourable” outcome——” It suffices that miscarriage of justice is in justice to the party alleging it.
This is the situation of the Appellant herein, who has questioned the expunging or assumed expunging of DW1 evidence from the record.
In the result, I resolve issue No.2 in favour of the Appellant and hold that the trial court was not right in expunging the evidence of DW1 or deeming it as expunged, in law. In the circumstance, the appeal succeeds on all the grounds of appeal and issues argued. In consequence of the appeal, been allowed, I enter the following orders:-
(1) An order setting aside the Ruling of the Trial court made on 1st July 2008 in suit No. LD/3003/92.
(2) An order is hereby made that the evidence of chief Babasola Rhodes (SAN) DW1 in suit No. LD/3003/92 between Kwesi Renner v. chief Babasola Rhodes which is extant and survives shall be given its full probative value as may be due in the decision in the said suit.
Appeal allowed.
Costs: –
I make no order as to costs.

K. B. AKAAHS, J.C.A.: I had the privilege of reading in draft the Judgement of my learned brother, Dajuma, JCA. In order to fully appreciate the reasoning and conclusion reached by my learned brother, it is necessary to state the background facts leading to the appeal. In suit No. LD/3003/92, the Plaintiffs, Oyewole Edun Alakija and Kwesi Adejemo Renner (on behalf of themselves and other beneficiaries of the Estate of Olabisi Modupe Awoonor-Renner (Deceased)) claimed against chief Babashola O. Rhodes, SAN (now deceased) for the following reliefs: –
1. Delivery of original Title Document to No. 25, Ajasa street, Lagos the subject matter of this suit.
2. Original Lease agreement with Mr. Awni Mattar dated 17th May 1973 and Lease Agreement with Awni Mattar which was signed in 1993.
3. Originals of all documents evidencing dealings in the property since May 1973.
4. A full and detailed account of all monies due and/or collected by the Defendant on the property between May 1973 and up to the date judgement is delivered in the suit.
5. Pay all such monies due to the Plaintiffs on the rendering of such account.
6. An injunction restraining the Defendant his servants, agents, and/or privies from further acting as Solicitor to the plaintiffs in respect of the property and the management of same.
7. A declaration that the two purported lease agreements on the subject matter of this suit dated the 27th of January, 1973 and 27th of October, 1989 and registered as No. 74 at page 74 in Volume 1410 of the Lands Registry at Lagos and No. 71 at page 71 in Volume 1903 of the Lands Registry in Lagos respectively are a nullity having been founded on fraud and illegality. And an order setting aside the Lease Agreements on the grounds of illegality and fraud.
The Defendant entered a conditional appearance. Thereafter pleadings were filed and exchanged in which the Defendant counter-claimed and alleged as follows: –
“1. The Plaintiff by counter-claim will contend during the hearing of this action that he acted as Solicitor to the Plaintiffs/Defendants by counter-claim in this suit sometime in 1983 in connection with the review of the lease agreement of 25, Ajasa Street, Lagos for the Defendants by counter-claim
2. That at the completion of the transaction all the monies were received by Defendants by counter-claim without paying the Plaintiffs Solicitors fees as they can hardly part with their monies even though they promised to refund the loans after the payments on Ajasa Street.
3. That the Plaintiff by counter-claim advanced the 1st Defendant by counter-claim sums of money to the tune of N720,000,00 to set up a photography studio and entered into on equitable mortgage on his property of 43, Raymond Njoku Street, Lagos by the deposit of his Title Deed with the Plaintiff by counter-claim to be perfected later into a Legal Mortgage which was executed by both parties.
4. The Legal charge was for a period of 10 years from 30th August, 1986 with an interest at the rate of eight (8) percent per annum.
5. The Defendant/Plaintiff by counter-claim pleads the legal charge executed by both parties, various letters and promissory notes received from the 1st Defendant by counter-claim in connection with the loan and the legal charge on the said property executed by both parties.
6. Sometime in 1997 the 1st Defendant by counter-claim, on the pre that he would like to confirm certain facts from the Title Deed deposited with the Plaintiff by counter-claim requested for it. The Plaintiff by counter-claim trusted him and returned the document to the said 1st Defendant by counter-claim only to discover later that the 1st Defendant by counter-claim had sold the property.
7. The 2nd Defendant by counter-claim by various letters which are hereby pleaded, had received various sums of money to the tune of N92,000.00 from the plaintiff by counter-claim. The Plaintiff by counter-claim plead all the correspondence and loan agreement to buy a Video Camera and to complete the decking of his house at Iju on the Mainland of Lagos with promise to refund the money when he was paid on Ajosa Street and will rely on the said documents of the trial of this cause.
8. The Plaintiff by counter-claim mode various demands from the Defendants by counter-claim for the payment of the various loans which he granted them but have failed to get the refund from them.
WHEREOF the Plaintiff by counter-claim claims the sum of N735,000,00 from the 1st Defendant by counter-claim and the sum of N32,000.00 from the 2nd Defendant by counter-claim.”
The Plaintiffs filed Reply to the Defence and counter-claim and so issues were joined on the pleadings.
Hearing commenced on 23rd October, 1996 when the 1st plaintiff testified and was cross-examined the next day. The 2nd Plaintiff also testified from 7th January, 1997 to 20th March, 1997 after which 1st Plaintiff was recalled for further evidence. He testified further on 6th March, 1998 and was cross-examined. PW3 gave evidence on 24th November, 1998 before the Plaintiffs closed their case. Although the matter was adjourned to 3rd and 4th February, 1999, the Defendant did not open his defence until 23rd January, 2003. After this the suit was adjourned to 13th, 19th and 20th March, 2003. The next time the Defendant was called to the witness box was 18th June, 2003 and the case was adjourned to 22nd and 23rd October, 2003 for cross-examination. The Defendant was absent on 2lnd October, 2003 but was in court on 23rd October, 2003 but counsel for the plaintiffs asked for adjournment because the lead counsel for the plaintiffs was absent. The cross-examination was adjourned to 20th and 21st January for cross-examination. On 20th January, 2004 the Court did not sit and the cross-examination was shifted to 6th and 7th April, 2004. On 6th April, 2004 the Plaintiffs’ counsel was late to Court and he told the Court that Adeniyi Ademola who was seised with the matter had been appointed a Judge and therefore asked for adjournment. Despite casting strictures on the counsel who appeared for the Plaintiffs and the number of times the cross-examination had been adjourned, the learned trial Judge still adjourned the matter to 2nd and 3rd June, 2004 for cross-examination.
It was next adjourned to 28th and 29th September, 2004. On 28th September, 2004 there was no appearance for the Plaintiffs. It was next adjourned to 23rd and 24th November, 2004. On 3rd February, 2005, counsel for the Defendant informed the Court that the Defendant had died and an application for his substitution was pending. The application was moved and granted on 3rd February, 2005.
It was after this that Plaintiffs’ counsel brought the application to expunge the evidence of the deceased Defendant from the records because he was not cross-examined and the learned trial Judge felt that since the Defendant was not cross-examined, no one can rely on his evidence. And this was what prompted the appeal.
My learned brother, Danjuma, JCA resolved the issues raised in the appeal in favour of the Appellant. I entirely agree with him that learned counsel for the Plaintiffs who was responsible for the delay and eventually aborted the cross-examination of the Defendant cannot be heard to complain about lack of fair hearing. He cannot be allowed to profit by his delict. And since the action survived the Defendant, the evidence which he gave before his demise is valid evidence.
The learned trial Judge must share in the blame for bending over backwards to accommodate the Defendants, who from all indications did not want to cross-examine the Defendant. In view of what I have stated and the reasons set out in the lead judgement, I too allow the appeal.

JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the Judgment just delivered by my learned brother, Danjuma, JCA and I agree with him that this appeal has merit for which I join to allow. The evidence given by DW1 Chief Rhodes which the Appellant’s counsel, due to his tardiness failed to cross examine before the witness died, cannot be said to have ceased to exist by operation of law. The fact that the said witness was not cross examined due to no fault of his, does not make his evidence non-existent. The purpose of cross examination is to contradict, destroy or discredit a witness and to water down the case of the adversary. A party’s case is made on his pleadings and evidence in chief and not necessarily in cross-examination.
See Onwumere v. Agwumadu (1987) 3 N.W.L.R. (pt.62) 673; Emegokwe v. Okadigbo (1923) 4 SC 111 Offorlette v. State (2002). 12 N.W.L.R. (pt.681) 415 at 436.
Furthermore, cross examination is used to test the accuracy, veracity or credibility of a witness in order to discover who he is and whether his evidence should be believed or not. Where a party had ample opportunity to cross examine a witness and he fails to do so within the time allowed by the court, he cannot thereafter complain after the said witness had died. It is not the law that the court must discard or strike out such evidence. It is however the duty of the court to determine what weight to be attached to such evidence and not to strike it out simply because the witness was not cross examined.
Based on the above and the more detailed exposition of my learned brother in his lead Judgment, I too find this appeal meritorious and is accordingly allowed by me. I abide by all the consequential orders made in the lead Judgment. I also make no order as to costs.

Appearances

Olufemi A. Olulowo Esq.,For Appellant

AND

Respondents did not appear nor file any brief.For Respondent