Chief Asiya Ita Effiom Otu Ekong & Ors. V. Benson Okpala (1972) LLJR-SC

Chief Asiya Ita Effiom Otu Ekong & Ors. V. Benson Okpala (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The plaintiffs have appealed to this Court against the judgment of Nkemena J. (High Court, Calabar) whereby he dismissed with 200 guineas costs the action which the plaintiffs had instituted against the defendant, now respondent, and in respect of which the writ of summons was endorsed as follows:-

“(a) The plaintiffs’ claim against the defendant is for a declaration that a purported sale of the plaintiffs’ family land by the late Chief Otu Effiom Otu Ekong II to the defendant contained in a purported conveyance dated 30th June, 1955 is invalid.

(b) An order setting aside such a conveyance.”

Pleadings were ordered and filed in the action and from the pleadings it was manifest that the plaintiffs were suing as representatives of the “family and descendants of Etubom Effiom Otu Ekong (deceased).” The plaintiffs’ statement of claim avers in substance that the late Chief Otu Effiom Otu Ekong II had sold part of the family land to the defendant by virtue of the conveyance referred to in the writ of summons and paragraphs 5 and 6 of the statement of claim read as follows:-

“5. The said Chief Otu Effiom Otu Ekong II in selling the land aforesaid acted in his personal capacity and without the authority or consultation of the other members of the family of Etubom Effiom Otu Ekong.

  1. Under Efik native law and custom all the descendants of the said Etubom Effiom Otu Ekong are joint owners of the land in dispute with Chief Otu Effiom Otu Ekong II who purported to sell it to the defendant.”

In answer to the plaintiffs’ statement of claim the defendant filed a statement of defence. In that statement of defence he denied the allegations contained in paragraphs 5 and 6 of the statement of claim and stated in substance that the late Chief Otu Effiom Otu Ekong II had openly asserted rights ofindividual ownership on the land concerned and that he had bought from him on that basis.

The learned trial judge took evidence at the hearing of the case. After the 2nd plantiffs’ witness, by name Israel Mato, had completed his evidence in court, learned counsel appearing for the plaintiffs applied to call the second plaintiff, Madam Sarah Effiom Otu Ekong, to testify. The notes made by the learned judge on this point read as follows:-

“At this stage Mr. Bassey applies to call 2nd plaintiff to give evidence, as to what transpired between herself and Chief Otu Ekong II and whether her consent was obtained when the land was sold to the defendant.

Mr. Aseme: submits that if that was the evidence it had been covered by 1st and 3rd plaintiffs. It is belated.


The main issue in this case is whether the late Chief Otu Ekong II had power to alienate family land to the defendant without the consent of the family of which he was the head. The action is a representative action and 1st and 3rd plaintiffs gave evidence that such consent was never obtained.

If the 2nd plaintiff would have testified before me she should have been called to give evidence before witnesses for the plaintiffs were called. She should not be in court to listen to other plaintiffs and their witnesses testify and then be called to round up and polish such evidence that was not properly given. I would have granted the application if only the 1st and 3rd plaintiffs were called first and the 2nd plaintiff called to testify after they had testified. Order 42, rules 1, 2 and 3 of the High Court Rules set down the procedure to be adopted by a person on whom the burden of proof rests. That person or those persons must first state their case before adducing evidence or calling witnesses. To depart from the rules the permission of the court has to be sought and in cases where witnesses give formal evidence or such expert evidence as will not conflict with the issues between the parties permission is normally granted.

In the present case no such permission was sought until at a later stage. This is medicine after death. I shall refuse the application.”

As this application was refused, learned counsel for the plaintiffs proceeded with his case and called the 3rd plaintiffs’ witness, by name Ekpo Bassey Offiong Effiwat. After the close of the case for the plaintiffs, the defendant gave evidence and called no other witnesses and at the conclusion of the case the learned trial judge dismissed the plaintiffs’ case as stated. In the course of his judgment he observed as follows with respect to the 2nd plaintiff who was not allowed to give evidence in court:-

“2nd plaintiff did not testify. The defendant said in his evidence in chief ‘Before we settled the selling price the Chief demanded drinks for the family. I took a bottle of whisky, 3 bottles of beer, 3 bottles of soda water, and one bottle of Schnapps to the Chief’s house known as Lucky House and situated at 5 Spring Road, Calabar. This was in May 1955. When I went there I saw one Edem, the 2nd plaintiff. Later five or six persons came in. Before they came in the Chief told me that 2nd plaintiff was his only sister. These persons partook of the drinks that I bought. Chief Otu Ekong II told them that he had taken me to Uyanga and that two of us had agreed to the purchase of part of the land by me. We dispersed. I got no opposition from these persons.

They were very happy about the transaction.’

I have not the slightest doubt that the defendant is a witness of truth.

I am satisfied that the 2nd plaintiff the only living sister of late Chief Otu Ekong II knew about this sale in 1955 and in fact consented to it.

The evidence of the defendant showed that she was present when the family drinks were brought and was happy over the conveyance.”

The plaintiffs have appealed to this Court against that judgment and on appeal before us they had filed a number of grounds of appeal. In view, however, of the conclusion at which we have arrived on this matter, we propose to deal with only one of those grounds of appeal, i.e. ground of appeal No.8 which reads as follows:-

“8. The learned judge erred in law in refusing the application of the plaintiffs’ counsel to call 2nd plaintiff as a witness when Order 42, rules 1, 2 and 3 of the High Court Rules (E.R.) did not render such evidence inadmissible.

Alternatively if the learned trial judge had a discretion in the matter, he exercised such discretion on wrong principles by (a) failing to distinguish between the admissibility of the evidence of the proposed witness and the weight to be attached to such evidence (b) refusing to permit the witness to testify when the justice of the matter required that application be granted.”

Learned counsel for the appellants has submitted that the learned trial judge was in error of law in refusing to take the evidence of the 2nd plaintiff in the circumstances in which he had refused the application to call her. Order 42, rules 1, 2 and 3 of the Rules of Court (Eastern Region of Nigeria) then applicable in Calabar High Court, provide as follows:-

“1. The order of proceedings at the hearing of a cause, in cases in which statements of claim and of defence have been filed, shall be as follows.

  1. The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the Court may determine, shall begin. He shall state his case.
  2. He shall then produce his evidence and examine his witnesses-in- chief.”

Clearly, those rules describe the procedure which should be adopted with respect to the calling of witnesses at a trial. In this case, pleadings had been filed by both parties and it is manifest from the pleadings of the parties that the burden of proof of the material issues in controversy between the parties rested on the plaintiffs. The 2nd plaintiff, who was sought to be called by learned counsel, was therefore a competent witness at the stage of the proceedings when the plaintiffs’ case was still being heard. To refuse to call the plaintiffs or one of the plaintiffs at that stage of the proceedings can hardly be consistent with the provisions of Order 42, rules 2. But, quite apart from a misconception or disregard of the rules of court, the manifest injustice of the course taken by the learned trial judge should also be pointed out. In Briscoe v. Briscoe [1968] p. 501, it was held that a magistrate who had insisted on a particular order for the calling of witnesses by counsel had committed a technical misconduct of the hearing. In the course of his judgment in the Court of Appeal on that case, Karminski J. stated at page 504 of the report as follows:-

“It is not for me to speculate what the ultimate result of this case will be. It is a case where apparently from the record each side so far has won on one occasion, so that the issue on the third may be open to some doubt. All I am concerned with is that there was, in the technical sense, misconduct of the hearing here for the reasons I have given. The discretion which must lie with counsel to call his witnesses as he pleases, and in the order he pleases, was over-borne by the court.”, and also in the course of his judgment in that case, Lane J. observed as follows at page 505:-

“I have, however, come to the conclusion that it would be wrong for this court to speculate as to what effect it would have had if the magistrate had left the conduct of the case entirely to Mr. Stuckey. Mr. Kee has put forward persuasive arguments to the effect that no difference would have been made in fact but, like my Lord, I am not satisfied that it would have made no difference and I am prepared to go further than that and to say that once there has been such a fundamental interference with the right of counsel to conduct his case,the court ought not to inquire too closely into what would have been the position had the interference not taken place.”

In argument before us learned counsel for the defendant had in fairness conceded that the learned trial judge was wrong to have disallowed the application of counsel to call the 2nd plaintiff to give evidence at that stage but he nevertheless submitted that where either of two grounds would decide a case the court of appeal would not set aside a verdict when that Court is satisfied that one of the grounds made out is sufficient to sustain that verdict. For this submission learned counsel for the defendant relied upon the case of Elias v. Disu and Ors. [1962] 1 All N.L.R. 214 and he contended that as this was a case of wrongful exclusion of evidence, section 226(2) of the Evidence Act would apply and that the plaintiffs still had the onus of proving in the court of appeal that the evidence excluded would, if admitted, have altered the fortunes of the case in their favour. Section 226(2) of the Evidence Act reads as follows:-

“226. (2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.”

Thus, the section provides that even if at the trial evidence had been wrongfully excluded this would not automatically entitle the appellants to a reversal of the judgement unless they can show that the evidence which was so excluded would have, if admitted, altered the course of the case in their favour. In Elias v. Disu and Ors. supra, the witness, not the evidence, excluded was a plaintiff whom the defendant proposed to call as one of his own witnesses and in the course of the judgment in that case the Federal Supreme Court at page 217 observed thus:-

“It has been submitted on behalf of the respondent that even if the judge’s ruling was wrong the point is academic as regards the appellant, since it was not he but his co-defendant who applied to call the plaintiff. There may be cases where this would be so, but in the present case I am satisfied that the appellant is entitled to raise the point. It is not a case in which this Court can apply section 226(2) of the Evidence Ordinance and say that had the evidence wrongfully excluded been admitted it may reasonably be held that the decision would have been the same, and the exclusion of the evidence is in itself sufficient ground for setting aside the judgment of the Court below.”

It should be noted that in the case of Elias v. Disu and Ors., supra, it was a defendant who had raised the ground of exclusion in addition to other grounds of appeal filed by him against the judgment of the lower court. The Federal Supreme Court held that if the ground of exclusion was standing alone it would have resulted in the judgment of the court below being set aside and the ordering of a re-trial. But, as other grounds of appeal canvassed show that the plaintiffs’ case was in any case bogus, the judgment of the lower court would be set aside and the plaintiffs’ case dismissed.

It is easy to see that the case of Elias v. Disu and Ors. is not similar to the case in hand. In the present case it is the plaintiffs who are complaining that one of their own number had been precluded from exercising her undoubted right of giving evidence for her own side and not for the defendant and that by not giving evidence her case had been affected adversely.

Furthermore, we would wish to point out that in this case there was absolutely no reason why the learned trial judge should have refused to hear a party to the case. The order in which witnesses should be called at a trial is clearly a matter for counsel and in respect of which counsel must and does accept responsibility. If it turns out that the order chosen by counsel although not illegal yet offers an unjustified opportunity for one witness to have heard or overheard the testimony of another, clearly that is a circumstance which must go towards the assessment of the weight to be attached by the tribunal to the probative value of the evidence concerned. We even think that at that stage of the proceedings it was completely unnecessary for learned counsel to have made a special application to the judge to call that witness. He did make the application however and we think that the reasons given by the learned trial judge for refusing the application are not justified.

We observe that the learned trial judge in the course of his ruling refusing the application of counsel to call the 2nd plaintiff to give evidence had taken the view that she should be so disqualified only because she was in court when her witnesses were called into the witness box. The pleadings show clearly that the crux of the entire case was the issue of consent and indeed the passage of the judgment of the learned trial judge which we have quoted pertaining to the 2nd plaintiff shows quite clearly that the learned trial judge himself had drawn an inference of consent against the 2nd plaintiff whereas by her pleadings she had denied it and when in court she was denied the right of supporting her pleadings in denial of that issue.

We are refraining from considering the other grounds of appeal since this Court will not lend itself to such obvious irregularity as appears in the trial of this case and under no circumstances will a judgment of the type be allowed to stand. Learned counsel for the defendant had argued at length that the plaintiffs’ case would have failed in any case since proof of lack of consent by the 2nd plaintiff could not have affected the matter one way or the other and when on the evidence third parties had taken interests which they derived from the conveyance executed in favour of the defendant. We do not agree with those submissions. First, it is easy to see that the learned trial judge had based his judgment on the finding that the 2nd plaintiff consented to the transaction when she was not given the opportunity of denying it; and, secondly, the third parties referred to are neither parties nor witnesses in this case and the Court knows only precious little about them and their so-called entitlements.

This appeal must succeed and it is allowed. The judgment of the High Court, Calabar, in suit No. C/33/1964 is set aside including the order for costs. We order that the case be sent back for re-trial before the High Court, Calabar where parties may, if they be so advised, amend their pleadings. We order also that the respondent shall pay the appellants their costs in this Court fixed at 120 guineas and that costs in the court below shall abide the event.


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