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

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

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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:

“2. Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

The Rule clearly gives a court extremely wide powers of doing justice in any matter before it although evidently these powers are only exercised “subject to particular Rules”. Where there are rules covering a matter in hand, it seems that the judge or court is all but free to act outside the Rule concerned but otherwise the yard-stick is that necessity of doing justice. In coming to the conclusion at which he arrived and apparently relying on the submissions of learned counsel for the plaintiff, the learned trial judge directed himself that if he could set aside and relist a case already heard and decided in the absence of either of the parties, a fortiori, he could make the order sought. The power to relist for rehearing on its merits a case which had been disposed of in the absence of either of the parties, is contained in the Rules, i.e. Order XL Rules 5 and 6 which read as follows:

“5. Any judgment obtained against any party in the absence of such party may on sufficient cause shown be set aside by the court upon such

  1. Any cause struck out may, by leave of the court, be replaced on the cause list on such terms as to the court may seem fit.”

It will be seen therefore that the power to set aside a judgment obtained in the absence of a party is expressly given by the Rules whereas there was no reference before us or before the learned trial judge to any rule which governs the exercise of a power to set aside proceedings undertaken in the absence of a party. Suppose after having started the hearing of a case the judge suddenly discovered after taking the evidence of some witnesses that the case is one that he should not take, could it be argued that in those circumstances he could not stop the further hearing of the case, annul the proceedings which had been taken before him and direct that the matter should go before another judge Once judgment is delivered, what governs the powers of the judge are clearly set out in the law for the right he has to set aside a judgment is only conferred by order XL Rule 5, as set out above. In the case in hand, the learned trial judge had not yet given any judgment. He had reserved judgment and obviously the provisions of Order XL Rule 5 are not applicable.

In opposing the present application, learned counsel for the defendant referred the court to some passages appearing in “The Law of Evidence”, by Sidney Phipson under the caption, “Examination by Judge and Jury: Recalling Witness”. The passages under this caption are however of very little help in the solution of the matter in hand. They deal predominantly with criminal matters and in any case are directed only to the act of calling or recalling a witness of its (or his) own accord by a court or judge in a criminal case.

Learned counsel for the defendant also referred to the case of Re Enoch & Zaretzky, Bock & Coo’s Arbitration (1908-1910) All E.R.R. 624, where a particularly strong Court of Appeal (Cozens-Hardy, M.R., Fletcher-Moulton, L.J. and Farwell, L.J.) considered the similar case of Coulson v. Disborough (1984) 2 Q.B. 316 and declined to follow it. The earlier case was of course a criminal case and had decided that a court or judge was entitled to call a witness or recall one as his (or its) own witness subject to the right of a party adversely affected by the evidence of that witness to cross-examine the new witness on the point of his evidence. In re Enoch (supra), Fletcher-Moulton, L.J. at p. 627 of the Report, observed thus:

“The point to which I wish to allude is the question of the umpire procuring evidence in the arbitration himself. It is quite clear, both from his conduct and from the line that has been taken up by counsel for the buyers and their arbitrator on this appeal, that there is an idea that an umpire, a person in a judicial position, has the power, and, I suppose, the duty, to call witnesses in a civil dispute which the parties do not either of them choose to call. In my opinion there is no such power. A judge has nothing to do with the getting up of a case.”

It seems clear that in a civil action the powers of a judge to call or recall a witness of his own accord are extremely limited and indeed are usually only exercisable with the consent of the parties, although the right of a judge to recall a witness of his own accord, who had already given evidence or produced a document, just for the purposes of making the witness explain or elucidate his previous testimony, is fully recognised. See the observations of this Court on this point in the case of Ogbodu v. Odogha & Anor. (1967) N.M.L.R. 221; also Bellgam v. Bellgam (1965) 1 All N.L.R.106.

It is obvious however that the situation in the case in hand is completely different and the reference by learned counsel for the defence to that matter is inapposite. The point involved in this case is whether by virtue of the provisions of Order LII Rule 2 a judge can order the recall of witnesses for cross-examination by a party which was absent when the witness gave evidence. Learned counsel for the defendant maintained that the plaintiff’s case (i.e. the plaintiff in the con of the counter-claim) was closed when the plaintiff (actual) emerged with the present application. We appreciate that by this submission learned counsel wished to spotlight some injustice that might occur to the defendant in that circumstance.

This however is a matter which depends on the circumstances of each case for the request to call or recall a witness may be made by a plaintiff or by a defendant and, as stated by us before, the deciding consideration seems to be, as the Rule states, “the interest of justice”. Besides, the argument of learned counsel for the defendant overlooks the availability to the plaintiff (as defendant to the counter-claim) of the provisions of Order XL Rule 5 whereby he could wait until judgment was delivered against him in default of appearance and they apply for the judgment to be set aside and the case heard de novo.

We are of the view that the learned trial judge was entitled to make the order sought by the plaintiff in this case and in appropriate circumstances the order which he did in fact make. In the course of his judgment in this case, the learned trial judge referred briefly to the history of the case and pointed out the complications which had arisen on account of the massive .J injection of new parties into the case as well as the complexity of the issues to be tried and resolved. Order LII Rule 2 (supra) obviously gives the judge the powers to make such orders as the justice of the case demands.

Order LII of the old Supreme Court Procedure Rules is the last Order under the Rules and comes under the rubric “Miscellaneous Provisions”. We have not been addressed with respect to any comparable or similar rule to Rule 2 of that Order and it seems to us to have been deliberately included in the Rules in order to fill the gaps which it might otherwise be impossible to fill in the absence of more detailed Rules of Court. Under that Rule, i.e. Order LII Rule 2, the court can only act judiciously and we are of the view that once it is established that the proposed exercise of powers in that respect does not come under any particular rule, the court is entitled to make any order which justice demands. Such an order could only be interfered with by a Court of Appeal where it is shown to be illegal or perverse or where it is demonstrated to have been made in abuse of any particular rule. No such argument has been addressed to us in this case.

It was further argued for the defendant that the order made by the learned trial judge was not the order sought by the plaintiff. Indeed, what the plaintiff asked for was an order to recall the witnesses of the defendants for cross-examination and learned counsel for the plaintiff made it clear that he was not going to call any evidence in the case. Manifestly, the learned trial judge did not make the order which the plaintiff has asked for and clearly has made an order in effect asking the plaintiff to prove his case when that party had already told him that he was not calling any evidence. Neither of the parties has asked for the type of order made by the learned trial judge and unless there is no other way of ensuring justice, a judge or a court in a civil matter should leave the parties to fight it out inter se.

However desirable this may be, we cannot lose sight of the wording of the Rule under which the application involved in this appeal was brought, for by that Rule the order made pursuant to it may be such as has “been expressly asked for by the person entitled to the benefit of the order or not.” We have pointed out that there is in the body of the Rules of the Supreme Court concerned no provisions for setting aside proceedings.

With respect to the power to call or recall a witness at the instance of either of the parties, there is abundant authority to the effect that a judge or court has a discretion and where, as in this case, the proceedings have gone on to the stage where the hearing of evidence has been concluded, the discretion of the judge or court is more limited but is certainly not forbidden. We are unable to see any injustice caused to the defendant in the way the judge had exercised his discretion and powers under the Rule concerned and unless this is shown, we cannot uphold the submission of learned counsel for the defendant that the judge had acted improperly.

We do not think it proper for us to interfere with the order of the learned trial judge. The appeal fails and it is dismissed. Only one of the defendants had appealed and he will pay the costs of this appeal fixed at N82. We observe that this case had been adjourned for this appeal as far back as August, 1971 and we should think that it is now deserving to accelerated hearing. We order that the case should go back to the High Court, Lagos for hearing de novo before another judge in that jurisdiction.

Other Citation: (1974) LCN/1790(SC)

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