Bader Tabaa V. O.r. Lababedi & Anor.(1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The point raised in this appeal is not only novel but is also of great importance for it involves a matter of procedure which seldom arises but on which the law is recondite. The claims concerned in the appeal are rather small and indeed are of very little significance. We do not propose to consider those claims in this judgment as they are irrelevant and in any case in view of the turn which the hearing had taken, the learned trial judge who was trying the case had not made any final pronouncement on these claims.

The plaintiff had sued the defendants herein for possession of premises situate at No. 143, Nnamdi Azikiwe Street in Lagos. The defendants had resisted the claim for possession and by leave of court one of them had made a counter-claim against the plaintiff. Both sides duly filed and delivered their pleadings and it appears that at some stage of the proceedings the plaintiff’s case was struck out by the learned trial judge. On the day of hearing, only the defendants appeared in court and the original claim of the plaintiff having been struck out the hearing of the counter-claim proceeded and indeed proceeded to the end when the learned trial judge reserved judgment for a named date. On that date however he did not deliver his judgment but instead informed counsel for the defendants, who was the only counsel present in court, that he would wish to be further addressed by counsel on some legal issues which were and are clearly raised by the procedure adopted in the case. Learned counsel, apparently unprepared for such legal argument, asked for another date and the case was accordingly adjourned for the purpose of hearing learned counsel on the legal issues concerned and eventually for judgment in the matter to be given.

It appears that on that same day, learned counsel for the plaintiff who had so far not attended court, filed a motion in court praying on behalf of the plaintiff for

“an order that the plaintiff and his witnesses (if any) be recalled for cross-examination by the defendants’ counsel and any further order or orders at this Honourable Court may deem fit to make in the circumstances.”

We point out at this juncture that the “plaintiff’ in the quotation is indeed meant to be read as “defendant” to the action. To this extent, the designation is confusing, the more so as it is neither justified nor realistic. In this judgment we propose to keep to the correct designation of the parties.

This application by the real plaintiff was later heard by the court. It was vehemently opposed by learned counsel for the defendant (actual) who contended that the issues involved the jurisdiction of the court and the implications of Order XLI Rule 5 of the Rules of Court (the old Supreme Court Procedure Rules which were then applicable in the High Court, Lagos). Learned counsel for the defendant is also recorded as having said as follows:

“The applicant may apply to be heard on his defence before judgment but cannot compel the respondent and his witnesses to be cross-examined after the respondent’s case has been closed. Refers to Phipson on Evidence 8th edition p. 475. Recall of a witness requires special circumstances which this application does not show. Order 52 is not a blanket under which anything can be done”.

Learned counsel for the plaintiff, in arguing the motion, accepted full responsibility for the absence of himself and his client as the trial of the substantive action. He is recorded as having said as well:

“As far as practicable the court would like to hear both parties. It is open to the applicant to bring a motion after judgment for it to be set aside. Applicant would not ask for more than cross-examining the respondent, will not call evidence.”

At the conclusion of the arguments, the learned trial judge reserved his ruling which he later gave and in the course of which he made the following observation:

“If the court can exercise power to set aside its own judgment and order a retrial, a fortiori, it possesses power to allow an application, in appropriate cases for the purpose of a retrial on the merits.

It is for this reason and in order to do justice between the parties that I consider that the application should be allowed with the modification that the respondent and his witnesses shall not be recalled merely for cross-examination but that the trial in the absence of the applicants shall abate and a fresh hearing ordered.”

The defendant appealed to this Court against that ruling complaining in substance that the judge wrongly set aside the proceedings in which the defendant, who had filed a counter-claim, and his witnesses, had already given evidence and also that the learned trial judge had no jurisdiction to do so. Learned counsel for the plaintiff on the other hand, argued that the judge was entitled to make the order which he had made in the peculiar circumstances of the case. Learned counsel placed reliance in this connection on the provisions of Order LII Rule 2 of the same Rules which read as follows: