REVEREND (PROF) IYAWE & ORS v. MR. A. SUNNY MENE
(2014) LCN/7026(CA)
RATIO
WHETHER A WITNESS CAN BE RECALLED AFTER THE CLOSE OF THE CASE
Ordinarily, it was expected of the respondent who gave evidence for himself at the trial, to have tendered in evidence the aforementioned documentary exhibits, which were all at his disposal, when he gave evidence. He did not.
Learned counsel to the respondent, who deposed to the affidavit in support of the application, in question, said it was inadvertence on his part which led to the failure/omission of the respondent to tender in evidence the aforementioned documentary exhibits. And in his submissions in this appeal, the same learned counsel to the respondent, contended that those documentary exhibits are central to and form the substratum of the respondent’s claim at the court below, hence the need for the application of 31st January, 2012.
The contention of appellants’ learned counsel is that since the respondent had closed his case, no further evidence at his instance can be adduced in respect of his claim, without an order of the trial court, first sought and obtained to the effect that the respondent’s case be re-opened. He relied heavily on H.A. Willoughby V. International Merchant Bank (Nig) Ltd. (1987) 1 SC 137 at 157-158; (1987) NSCC 41. Learned respondent’s counsel submitted that the authority of Willoughby V. IMB Ltd (supra) is not apposite to the facts and circumstances of the instant case. It is therefore imperative that the circumstances and the ratio decidendi in Willoughby V. IMB Ltd be clearly understood. In that case, the appellant’s counsel had applied to the trial Lagos State High Court, for leave to recall the only witness for the defence, for cross-examination after the defence had closed its case. After the said defence witness gave evidence in chief, learned counsel to the appellant, who was present in court, did not cross-examine the said witness. Learned counsel’s reason for her failure to cross-examine the defence witness was that she was “in an unsuitable condition” when the said defence witness gave evidence, because her “brother had just died”.
The learned trial judge, ruled in favour of the appellant, according to him, in “the interest of justice” which is “paramount in any trial before the court and it is the inherent jurisdiction of the court in appropriate cases to promote that interest”. Furthermore, it was the opinion of the learned trial judge that the state of the appellant’s counsel as at the time the defence witness gave evidence deserved his “sympathy”. The decision of the learned trial judge was not predicated upon any Rule of Court, but anchored on the interest of justice which he said came under the inherent jurisdiction of the court.
On appeal to this court, against the ruling of the learned trial judge, it was held per Ademola, JCA., that:
“The interest of justice must always in my view be predicated upon certain ascertainable reasons or principles which must be clear in every instance and situation.”
Furthermore, his Lordship said that since the parties had joined issues with respect to the piece of evidence which the defence witness gave on the fateful day, his evidence would not have been a surprise to the counsel to the appellant and she should have been prepared to meet it. He concluded:
“She failed to meet it and it will be an indulgence not rooted in any legal principle to allow her to cross-examine the witness or lead to additional evidence after the close of the case for the appellant in the court below.”
The appeal was therefore allowed. In a further appeal to the Supreme Court, it was held per Eso, JSC (now of blessed memory) that: “……the phrase interest of justice is not a carte blanche or licence for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice, as a concept is not easy to define despite postulates by great jurists from time immemorial even to Roscoe Pound who dealt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land. A judge must be bound by rules – accepted rules made under the law of the land – in order not to leave the populace in the fear of saucy dreams of a judge, who would believe, like Humpty Dumpty that “when I say this, it must be so.” And why? “Because I say so and consider that to be in the interest of justice.”
In the end the appeal was dismissed by the apex court, which affirmed the decision of this court, to the effect that the learned trial judge was in error when he granted the application of the appellant therein, to recall a defence witness, for cross-examination, after the close of the defendant’s case.
The main difference between the instant case and that of Willoughby V. IMB Ltd (Supra) is that in the latter, the application was for leave to re-call a witness for further evidence on cross-examination. In the instance case, the application was not for a re-call of the respondent who had earlier given evidence and closed his case. It was for production of certain documents by the principal Deeds Registrar and the respondent himself.
In his ruling, the learned trial judge at page 48 of the record of appeal, said:
“Have the principles upon which a court may exercise its discretion in considering an application to recall a witness, and order the attendance of the Principal Deeds Registrar, Lands registry to produce a document been satisfied or met?”
The learned trial judge curiously did not say anything with respect to the applicability of the authority of Willoughby V. IMB Ltd. (Supra) relied upon and ventilated by both counsel. Instead, his lordship relied upon Order 39 rule 15 of the High Court (Civil Procedure) Rules, 1988; which says:
“The court or a judge in Chambers may in any action at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the court may think fit to be produced.” Hence, according to the learned trial judge, he had the discretion “to order the attendance of any person for the purpose of producing any document at any stage of the proceedings.”
Undoubtedly, the learned trial judge had the discretionary power to order the attendance of any person to “produce any writings or document at any stage of the proceedings”. However, that is not all. The writings or other documents are the ones which he thinks are fit to be produced. There is nothing in Order 39 rule 15 of the High Court (Civil Procedure) rules, 1988 which says that the activation/invocation of the said order should be at the instance of any of the parties such as the respondent herein, did.
It seems to me that, indeed the learned trial judge suo motu, without the prodding of either party to an action, can invoke Order 39 rule 15 aforementioned, for the production of any writings or other documents which would aid him in coming to a just and fair decision. And this would depend upon the circumstances of the case. In the instance case, where learned counsel to the respondent was clearly negligent in the conduct of the respondent’s case at the trial, and turning round to blame it on “inadvertence”, I do not feel that he needed the assistance of the learned trial judge, by a resort to Order 39 rule 15 and Order 47 rule 1 of the High Court (Civil Procedure) Rules, 1988, in order to repair his failure to have put in evidence the notorious purchase/sales agreement between the respondent and Michael I. Osagie, and also the tenancy agreement between the same persons on 1st June, 2006, when the respondent testified at the court below. He cannot be indulged in having a second bite at the cherry.
The situation in the instant case is made worse by the fact that since the Principal Deeds Registrar and the respondent, would by the order of the court below, produce documents pursuant to Section 218 of the Evidence Act, they would not give evidence on those documents and a fortiori, they cannot be cross-examined by the appellants on those documents. And will that be fair to the appellants. I do not think so.
I believe, it is because of this sort of situation that the apex court in Ogbodu V. Odogha & Anor. (1967) NMLR 400 per Coker, JSC, cautioned that: “Undoubtedly the discretion to recall a witness by a judge is one which should be exercised with great care, regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties.” Furthermore, the learned law Lord clarified the essence of interest of justice, when he admonished, to wit: “…….when in the interest of justice he was obviously obliged to do so in order to clarify a point of evidence which had arisen in the proceedings before him and the implications of which are well within the knowledge of both parties to the litigation.”
I have earlier in this judgment demonstrated that the documents ordered to be produced by the court below, at the instance of the respondent, were all along in the possession of the respondent before he filed the suit on 12th May, 2009 and up to the time he gave evidence in court at the trial of the action. There is no indication on the record of appeal that the learned trial judge was “confused” about the said documents and so he needed some “clarifications” on them. The reason for the recall of the respondent and the order on the Principal Deeds Registrar, to produce the documents, in question, was purely and squarely the failure and/or negligence of learned counsel to the respondent to perform his professional duties, efficiently and no more. In our jurisprudence, where we practice the adversary system of advocacy, it is incumbent on legal practitioners, such as the respondent, to always be on top and in charge of the cases they conduct in court.
Let me say a word with respect to the nebulous concept of the discretion of the court which has been defined to mean, “……..the power or right conferred upon the courts by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others ……..”. Suleiman V. Cop (2008) 3 SCNJ 1 at 9 – 10.
That is why, the appellate court, will not ordinarily interfere with the exercise of discretion by a trial court. That is, “Ordinarily, an appellate court will not interfere with the exercise of discretion by a lower/trial court simply because faced with a similar application, it would have exercised the discretion differently. …….a discretion is said to be exercised judicially and judiciously where it is so exercised on sound principle of law based on sufficient material and also given sufficient prevailing circumstances of a given case. Surely, discretion must be exercised strictly on the facts and circumstances of the particular case and certainly not based on whims and caprices of the court.” – per Sanusi, JCA in Odigwe V. JSC, Delta State (2011) 10 NWLR (pt. 1255) 280.
I am satisfied that based on the facts and circumstances of the instant case as I had shown earlier in this judgment, the respondent was not entitled to the discretion of the learned trial judge, whom he prodded under Order 39 rule 15 and Order 47 rule 1 of the High Court (Civil Procedure) Rules, 1988; for the order on the Principal Deeds Registrar at the Lands Registry, Benin City and also the respondent to produce the Certified Copy of the agreement between the respondent and Michael I. Osagie and the Tenancy Agreement between the same persons, respectively, dated 1st June, 2006. The exercise of the discretion by the learned trial judge, was not judicious. Per Tom Shaibu Yakubu, J.C.A
