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J. Elabanjo V. Alhaja A. O. Tijani (1986) LLJR-SC

J. Elabanjo V. Alhaja A. O. Tijani (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division. In a lead judgment delivered by Uthman Mohammed, J.C.A. to which Nnaemeka-Agu and Kutigi, J.J.C.A. concurred, the Court of Appeal set aside the judgment of Oshodi, J. of the Lagos High Court awarding the Plaintiff (now Appellant) N100.00 damages for trespass and an injunction “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.”

In the Court of first instance, the Plaintiff gave evidence and tendered the Purchase Receipt of the land in dispute as EX.B and the Conveyance to him of the land in dispute duly executed by the Defendant/Respondent to this appeal. The plan of the land in dispute was attached to EX.A. The Plaintiff

also tendered EX.C written for and on behalf of the Defendant by her Solicitors. Coker & Coker. Exhibit C was a Public Notice posted by the Defendant on the land in dispute. Exhibit C contained the following relevant and material particulars:

“2. Our client has complained of recent acts of trespass on parts or portions of her lands and she hereby states for the information of all and sundry that apart from only 10 (ten acres of such lands sold by her to one D.T. Elabanjo (conveyance dated 5th day of November, 1969 and registered as No. 19 at p. 19 in Volume 1305 of the Register of Deeds kept in Lagos) she has not sold any portion of her land to anyone else.”

It is pertinent here to note that the particulars of the Deed of Conveyance pleaded by the Plaintiff in paragraph 1 of his Statement of Claim and tendered in evidence as EX.A agree in all respects with the Defendant’s description in paragraph 2 of EX.C of the land she sold to the Plaintiff. Exhibit C is an admission by the Defendant/Respondent that she sold the land in dispute to the Appellant.

In a short but well written and very carefully considered judgment, the learned trial judge. Oshodi, J. reviewed the pleadings, the evidence led on either side and exercised the prerogative of a judge who saw the witnesses, heard their evidence and watched their demeanour – the prerogative to believe one side and disbelieve the other. He held:-

“There is evidence before me that the contents of EX.B (the Purchase Receipt) were read over and interpreted to the defendant by Popoola in the presence of the Plaintiffs Solicitor even though Mr. Popoola signed as a witness and not as an interpreter. I believe and accept the evidence of Mr. Otukoya and Mr. Popoola on this point. With regard to Exhihit “A” itself I am satisfied that the defendant’s evidence as to its execution is false. It is an after-thought. I do not believe the defendant that the document was executed in the house of Mr. Shomefun her former husband. The execution was before a Magistrate in the Court. The 10 acres were validly sold to the Plaintiff. The plaintiff went into possession and 10 years later the defendant disturbed his possession by going on the land and damaging the pillars and palm trees on it.

(italics mine).

Needless to say that on the above findings, the learned trial judge was fully justified in awarding the Plaintiff damages for trespass and in “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.”

The Defendant appealed against the above decision of the High Court to the Court of Appeal. In a 19-paged judgment, 18 of which were devoted to a discussion of “the role played by a lawyer, Mr. Kunle Otukoya”. Uthman Mohammed, J.C.A. allowed the appeal of the Defendant, set aside the judgment of Oshodi. J. and “dismissed the claim of the Respondent before the High Court.” The Plaintiff who was Respondent in the Court of Appeal, as I observed earlier on, has now appealed to the Supreme Court on 7 grounds. J will now deal with Ground 7 which is the omnibus ground:-

“That the decision is against the weight of evidence.”

I must add at this point that the Appellant applied to the Court below for leave to argue grounds involving facts or mixed law and fact as provided by Section 213(3) of the 1979 Constitution and under Order 3 Rule 3(2) of the Federal Court of Appeal Rules, his application for leave was on the 29th day of April 1985 refused by the Court below. (See p. 155 of the Record of proceedings).

However on the 29th day of May 1985 this Court granted the Appellant “leave to appeal against the decision of the Court of Appeal dated 25th February, 1985 both on questions of fact and of Mixed Law and Fact” (see p. 156 of the Record of proceedings). If the facts of this case, as set out in the evidence of the witnesses were dispassionately considered without beclouding them with the issue of the desirability or undesirability of counsel giving evidence in a case in which he was briefed as counsel, it would have been quite clear that on the findings of fact of the trial Court, there was not much an appellate court could do.

Now, ordinarily it is not the function of the Court of Appeal to disturb the findings of fact of the trial Court especially where those findings are based, as in this case, on the credibility of witnesses who testified before the trial Court: unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion, It is in this regard that an appellate Court will take the view that not having heard or seen the witnesses. It is not in a position to come to any satisfactory conclusion on the printed evidence.

It has to be re-emphasised that it is not the business of an appellate Court to substitute its own views of the facts for those of the trial judge who saw, heard and believed. There are no need citing authorities for the above propositions for their name is legion for they are many. Ground 7 of the Grounds of Appeal thus succeeds.

The remaining 6 grounds of appeal dealt with one aspect or another of the issue that fully occupied the attention of the Court of Appeal namely:-

  1. Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence.
  2. Whether Mr. Otukoya who filed the Writ of Summons, the Pleadings, and Summons for Directions was in law a competent witness and whether his evidence ought not to have been expunged from the record by the learned trial judge.
  3. Whether the fact that Mr. Otukoya did give evidence for the Plaintiff/Appellant will have anything to do with the trial Court’s assessment of his credibility as a witness.
  4. Whether Mr. Otukoya ought to have known at least at the close of the pleadings that he was going to he a witness.
  5. Whether the learned trial judge was right or wrong in over-ruling Mr. Osinowo’s objection that Me Otukoya was incompetent to testify as a witness for the Plaintiff.
  6. Whether Me Otukoya was wrong to have accepted a retainer in this case.

The above six grounds were argued together as they all dealt with the consequences, legal or professional or both of learned counsel briefed by a party turning a witness and going into the box to give evidence for his client. It is clear that in this case the Court of Appeal reversed the decision of the trial Court and therefore, and thereby set aside the findings of the trial Court. The question now is – Was the Court below justified in so doing What reasons did it give for so doing’ Are those reasons valid In his lead judgment Uthman Mohammed, J.C.A. noted at p, 141 of the record of proceedings:-

“Two vital issues are the centre piece of the argument of learned counsel for the appellant…The first issue is the question about the role played by a lawyer, Mr. Kunle Otukoya who initiated the proceedings in respect of the claim of the respondent (the Plaintiff) before the trial Court,”

Later on in his lead judgment (pp. 140/147) the learned justice of the Court of Appeal observed:-

“I do not entertain any doubt to hold therefore that the evidence of Mr. Otukoya is very vital to the Plaintiff’s case. This fact he must have known even before the writ was taken out by the Plaintiff. Mr. Otukoya is therefore wrong to accept a retainer in a case in which he had reason to believe that he would be a witness.”

The lead judgment concluded on the following note:-

“In the circumstances even if the evidence of Mr. Otukoya had been expunged from the record the respondent could not have proved his claim on the evidence adduced before the Court.” The central issues in this appeal are – should the evidence of Mr. Otukoya be expunged from the record Put in another way – was Mr. Otukoya, who acted as counsel for the Plaintiff before the actual hearing hut did not represent the Plaintiff at the hearing, a competent witness for the Plaintiff I say competent because if a witness is competent his evidence is admissible. Its weight may be an entirely different matter. In his judgment, Uthman Mohammed, J.C.A. at p. 144 held:

See also  Erdmann Evoyoma And Ors V Okiki Daregba And Ors (1968) LLJR-SC

“The learned trial judge was in error to over-rule the objection raised by Mr. Osinowo learned counsel for the defendant in the Court below, against the testimony of Mr. Otukoya.”

What was Mr. Osinowo’s objection It was that “Mr. Otukoya is not competent to give evidence in this case as he had been counsel and advocate for the Plaintiff.”

On general principles one can safely say that the object of any trial is to ascertain the truth of either a criminal charge or of a civil claim. The trial is thus the process by which the Court endeavours to find out the truth or falsehood of the case. This is done by witnesses giving evidence. Anyone who has personal knowledge of the facts relevant to any issue in the case is by and large competent to give evidence unless otherwise excluded by law. On the supposition that the intended evidence is true, can the opposite parties suffer merely because such evidence is given by someone who at a stage acted as counsel for the party calling him It is said, and it is still true. That “the truth can produce no harm.” The truth may overthrow and overturn the opponent’s case. (as it did in the case now on appeal) but from the point of view of the administration of justice, it is no more than right that this should result. The learned trial judge believed that Mr. Otukoya was speaking the truth and that Alhaja Tijani was lying to the Court. She herself confessed that she lied to the Magistrate when she told the magistrate that EX.A and EX.B were read and interpreted to her before she signed them. How does one deal with the testimony of a self-confessed liar but to tell the truth and expose her lies That was exactly what Mr. Otukoya found himself compelled to do.

The question whether or not learned counsel should (not could, for counsel definitely can give evidence) give evidence in a case in which he has acted or is still acting as counsel has had a long and romantic history in English and American jurisprudence. Wigmore in his treatise on Evidence 3rd Edition Vol. VI from pages 586 to 606 considered at some length whether judges, jurors, and learned counsel should give evidence in cases with which they are involved as such judges, jurors or counsel. At page 586 the learned author stated:-

“That a judge may give testimony as a witness in a trial before a Court of which he is a member seems in the classical English practice not to have been doubted, although the precedents are scanty. It is not clear whether a judge so testifying was regarded as bound to retire from the Bench thereafter during the trial. But the propriety and legality of his raking the stand when needed seems to have been assured…… The controversy that arose over this problem concerned a different principle, namely, the judge’s duty, and his power to use his private knowledge in his judicial capacity, but it seems not to have been doubted by anyone of those who expressed their views that the judge might/awfully have given testimony: the only doubt was whether it was his moral duty to do so …

(italics mine)

Apart from Wigmore we have other authorities affirming the proposition that a judge is a competent witness. In Halsbury’s Laws of England 4th ed. Vol. 17 paragraph 233, the law as it relates to judges giving evidence is stated thus:

“A judicial officer who is sitting alone on a trial of a case cannot, because of his position, be a witness during that trial. A judge or Magistrate who is sitting with others may leave the bench and give evidence, but he should not return to the bench or take any further part in the trial in a judicial capacity.”

If a judge can lawfully testify in a case, and before a Court, of which he was a member, then a fortiori counsel can also lawfully give evidence in a case that he at one stage before the actual hearing handled as counsel to one of the contesting parties. The objections to a judge being a witness are not for reasons of incompetency as a witness, rather the objections are based upon the impolicy of combining at the same time the capacities of judge and witness; of being a witness without ceasing to be a judge of the cause; and of continuing to be a judge in the cause even after finishing his testimony as witness.

Dealing with the competence of counsel to testify on behalf of his client, Wigmore continued at page 595 article 1911 as follows:

“The competence of a counselor attorney to testify on behalf of his client, as a problem in the Law of Evidence, has occupied a singular place in our law. Occurring in practice with much more frequency than that of a judge’s or juror’s competency, it has presented constant opportunity for objection and discussion: the reasons of the most diverse sort, urged against it; are much more cogent than those urged against the testimony of judge or juror; the force of these reasons have been generally conceded. And yet in almost every court the final step has failed to be taken, and the judges have halted halfway between a prohibition and a licence, while the legislators. who have eagerly busied themselves with a re-enactment of the common law truism that a juror may be a witness, have ignored the troublesome problem of counsel’s testimony.”

Can one say the same thing of our own legislators To answer this question one has to have a closer look at some sections of our law of Evidence. Section 154(1) of the Evidence Act Cap 62 of 1958 sub nomen who may testify stipulates:-

“S.154(1) All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reasons of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

The trial Court, the Court of first instance accepted Mr. Otukoya’s evidence. This implied that the trial judge was fully satisfied that Mr. Otukoya was under Section 154(1) of the Evidence Act a competent witness. The Court of Appeal could not (and I hope did not) reject Mr. Otukoya’s evidence on that score. The learned trial judge was right in overruling the objection of Mr. Osinowo that “Mr. Otukoya is not competent to give evidence in this case.” As Mr. Otukoya did not suffer from any of the disabilities mentioned in S.154(1) and (2) of the Evidence Act he was legally a competent witness. The Court of Appeal was, with the greatest respect, in serious error when it regarded Mr. Otukoya as incompetent to testify in this case. In fact Wigmore ended his discourse on Counsel As Witness thus:-

“There Is, then. in general no rule but only an urgent judicial reo probation forbidding counselor attorney to testify in favour of his client.”

Halsbury was even more affirmative. In Vol. 17 of Halsbury’s Laws of England 4th edition paragraph 233 the learned authors emphatically stated that the evidence of counsel who gives evidence is not inadmissible. Thus in Eastland v. Burshell and Wife (1874-1880) All E.R. Reprint 849 a Solicitor tendered himself as a witness to give evidence as to the husband’s means but the trial judge refused to hear that evidence. On appeal it was held at p. 853:-

“We are therefore of opinion that any inquiry into the husband’s means was irrelevant. … if evidence on that point had been relevant we see no reason why the evidence offered should be rejected.”

The position then is that counsel appearing should not ordinarily act as counsel and witness. But if it becomes necessary for such counsel to give evidence his evidence is not rendered inadmissible by the mere fact that he has acted or is acting as counsel in the case. There can therefore he no doubt that counsel

is not. by the mere fact of being counsel for a party to a dispute, incompetent to give evidence in the same case. He is competent.

Other considerations may arise where counsel testified as witness but surely not that of competency. At page 144 of the Record of proceedings, Uthman Mohammed, J.C.A. observed:-

“I have carefully gone through the facts and the law referred to in the cases cited above and I entirely agree that it is wrong and contrary to practice and etiquettes at the bar for counsel to appear in a professional capacity in a case in which he is a material witness.”

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With the greatest respect there seems to be a confusion of thought in the passage reproduced above. Whether counsel can give evidence – his competence to testify – is one thing. Whether by the etiquete and practice at the Bar he should give evidence is an entirely different matter. One deals with the legal capacity to testify, the other with the propriety of his so testifying. It is necessary always to keep this distinction in view. If counsel is a competent witness it will be wrong to expunge his evidence from the record as the Court below suggested. If in so testifying counsel broke any rule of professional conduct then that will be a matter for the Disciplinary Committee of the Bar and that principle should have nothing to do with the outcome of the case.

Let me now consider the cases cited and relied upon by the Court of Appeal in order to see whether any of them decided that counsel cannot give evidence in a case he was briefed by one of the parties. In Olaleke Obadara & Ors. v. The President Ibadan West District Council Grade B Customary Court (1965) N.M.L.R. 39 the dispute was not whether counsel can give evidence in a case in which he is appearing. The main issue in that case was the interpretation of S.117 of the Constitution of the Federal Republic of Nigeria 1963. It was however observed per curiam that “it is undesirable for counsel to appear in a professional capacity in a case in which he is a material witness.” In the case now on appeal when Mr. Otukoya found that in the interest of justice he had to testify he, in fact, ceased appearing for the Appellant and Mr. Agbesanwa then took over. III Gachi & Ors. v. The State (1965) N.M. L. R. 33 at p. 336 this Court drew the necessary distinction between the competence of counsel to give evidence in a case he is conducting and the desirability of counsel giving evidence in those circumstances viz:-

“On behalf of Agbuku Angula, who was acquitted, defending counsel gave evidence in support of his alibi. He was a competent witness in law but for the reasons which were stated in Horn v. Rickard and approved by this Court in Obadara v. President Ibadan West District Grade B Customary Court, we think it highly undesirable that counsel should give evidence in a case in which he is appearing professionally. “(italics mine)

Gachi’s case supra is a complete answer to the question of whether Mr. Otukoya was a competent witness. He was a competent witness and the learned trial judge was right in so holding. The Court of Appeal, again with respect, was wrong in holding that Mr. Otukoya was not a competent witness and that his evidence should be expunged from the record. In Gachi’s case also this Court confined its censure with regard to “the undesirability of counsel giving evidence” to cases in which counsel is appearing. This was not meant to include cases in which counsel had at an earlier stage in the proceedings appeared but was not infact appearing when he gave evidence. The emphasis is on the position of counsel at the time he chose to give his evidence. If at that particular point in time he is not appearing in the case, that is to say he has in fact withdrawn his appearance then the censure will not apply.

Another case relied upon by the Court of Appeal was R v. Secretary of States for India in Council & Ors Ex parte Ezekiel (1941) 2 All E.R. 546 at p. 556, Humphreys J. dealing with the undersirability of counsel appearing as witness observed:-

“It has been brought to the attention of the Court that, on the hearing at Bow Street, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case.”

In the case of R. v. Secretary of States for India supra the emphasis was on, and the objection was to, counsel giving evidence and Continuing thereafter to act as counsel. That case did not decide that counsel cannot give evidence but it did decide that where counsel finds himself in a position where he is the only person with the necessary knowledge to prove or disprove a point in issue in the case, he should withdraw from that case and then give his evidence. He should not give evidence and still continue to act as counsel. In the present case now on appeal to this Court, the Record of proceedings shows that Mr. Kunle Otukoya took out the Writ of Summons. settled and filed the Statement of Claim, filed a motion for interim injunction, filed an application for Summons for Directions. The actual hearing of the Suit commenced on Friday the 26th day of September, 1980. On that day counsel for the Plaintiff was Agbesanwa not Kunle Otukoya. From then on Otukoyas name ceased to appear on the record as counsel for the Plaintiff. It is then obvious that throughout the hearing, and after his own evidence. Mr. Otukoya never again appeared as counsel for the Plaintiff (now Appellant in this Court). Mr. Otukoya undoubtedly gave evidence, but he did not continue thereafter to act as counsel in the case.

The Court below at p. 147 of the record of proceedings referred to and relied on the case of Adesanya Idowu v. M.A. Adekoya (1960) W.N.L.R. Part 4 p. 210. This case even if it was properly decided (which is doubtful) is not binding on this Court. In that case Quashie-Idun, C.J. of the High Court of Western Nigeria observed:-

“This appeal raises an important question of law. It is whether or not proceedings in a court should be declared irregular because counsel engaged in the case gave evidence for his client and at the same time continued to appear in the case”

From the above it is clear that the learned Chief Justice’s objection was not that counsel gave evidence for his client. No. It was rather that after giving that evidence he still continued to appear in the case. Concluding his judgment Quashie-Idun, C.J. at pages 211/212 said:-

“I think that this case simply illustrates the importance of adhering to the practice of not allowing counsel to appear both as counsel and as a witness in the same case. It is my view that the procedure adopted in this case is not only contrary to the practice of the Courts but it is also an irregularity which has rendered the trial unsatisfactory.” In the circumstances of the case I think the end of justice will be amply met by ordering a new trial.”

(italics mine)

I will say little or nothing about the validity of this conclusion because it is not necessary for the decision of this case.

That counsel should not appear both as counsel and witness in the same case is a rule of practice and not a rule of law. If a rule of practice, a rule of professional ethics is breached who should suffer It is here that the comments by Wigmore in his treatise i mentioned earlier on in this judgment becomes relevant. At page 606 paragraph 1911 Wigmore asked the following relevant questions:-

“Is it not strange, however, that Courts have sometimes been found ordering a new trial for counsel’s breach of this rule of professional ethics Why punish the innocent client Why not suspend the counsel from practice Courts are sometimes queerly illogical.”

The facts in Idowu v. Adekoya supra decided by Quashie-Idun, C.J. however, do differ from the facts of the case now on appeal to this Court. In one, counsel gave evidence for his client and thereafter still continued to appear as counsel in the case; while in the other (the case now on appeal) counsel gave evidence and did not continue to appear as counsel in the case after his evidence.

From all the cases cited and all the authorities the Court has been referred to the following facts have been established beyond doubt. namely:-

  1. That counsel engaged in a case is a competent witness if he chooses to give evidence in that case.
  2. That his evidence is in law admissible.
  3. That as a mere matter of practice and professional ethics it will be desirable that having given evidence counsel should withdraw and cease to appear in the same case.

The Court below, again with the greatest respect, carried the observations on the undesirability of counsel appearing as counsel and witness a bit too far. What the authorities tried to emphasise is that as soon as counsel finds himself in the position of having to testify as a witness he should no longer appear to land conduct the same case as counsel.

See also  Sanni Kehinde (Mogaji Agunbiade) V Amole Ogunbunmi And Others (1967) LLJR-SC

To summarise one may now attempt to answer the questions suggested by Grounds 1 – 6 of the Grounds of Appeal.

Questions No. 1:

Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence

Answer:

No. But it will be as a matter of practice and professional ethics undesirable for Mr. Otukoya or any counsel who gave evidence for his client to continue to appear and conduct the same case after his evidence for at the end he will be summing up and addressing on the evidence including his own evidence.

Question No.2:

Whether Mr. Otukoya who filed the Writ of Summons, the Pleadings and Summons for Direction was in law a competent witness and whether his evidence ought not to have been expunged from the record by the learned trial judge

Answer:

Mr. Otukoya or any other counsel for that matter is in law a competent witness in a case he has been briefed. Being a competent witness his evidence is in law admissible. It will he wrong in law to expunge admissible evidence from the record.

Question No.3:

Whether the fact that Mr. Otukoya did give evidence for the Plaintiff/Appellant will have anything to do with the trial Court’s assessment of his evidence and his credibility as a witness

Answer:

The credibility of any witness depends on:-

i. His knowledge of the facts to which he testifies.

ii. His disinterestedness.

iii. His integrity.

iv. His veracity.

v. His being bound to speak the truth by such oath as he may deem obligatory or by such affirmation or declaration as may by law be substituted for an oath.

Mr. Ayokunle Olarewaju Otukoya gave evidence as P.W.1. The thrust of his entire testimony dealt with his preparation of EX.B and EXA for the parties and the circumstances surrounding the preparation by him of these two exhibits. No one will know these facts and circumstances better than Mr. Kunle Otukoya. As a lawyer and member of an honourable profession, a minister in the sacred temple of justice, it will be atrocious without sufficient evidence to the contrary to doubt his veracity. Exhibit C prepared by Coker and Coker amply vindicates, substantiates and corroborates EX. A. On the sore and material issue whether EX. A was read and interpreted to the Defendant/Respondent before she signed, the evidence of the Defendant herself at p. 45 Lines 30 – 37 is revealing:-

“I went before a Magistrate. I do not know his name. The Magistrate asked me if the contents of EX. A had been read over to me and I said yes. I said yes because before I was taken before the magistrate the Plaintiff and lawyer Otukoya warned me at home to answer such question in the affirmative….I know it was a lie I told the Magistrate. I was told to tell the lie in order to save time. I had no anxiety over it since my husband was with me.”

This evidence speaks for itself. It needs no other comment except that no one can blame a trial Court for disbelieving a self-confessed liar. Who knows when she is lying and when she is speaking the truth. The pity of it is that the Defendant/Respondent was with her husband. If there is going to be a choice between the evidence of Kunle Otukoya, P.W.1 and Alhaji O.A. Tijani, Defendant/Respondent, I am sure that no fair-minded jury can prefer the evidence of the Defendant/Respondent to that of the P.W.l. Kunle Otukoya. At least the learned trial judge who saw the two witnesses in the witness box, who heard them give evidence and who watched their demeanour branded the Respondent a liar and rightly too. He believed the P.W.1 Kunle Otukoya and in my view rightly too. That should have been the end of this issue. The mere fact that counsel decided to give evidence will not ipso facto detract from his credibility. I admit that there may be some element of partisanship between counsel and client but the facts and circumstances of this case do obviously show up the P.W. 1 Kunle Otukoya as a truthful witness. In any event the learned trial judge who saw him, heard him, and watched his demeanour believed him. The Court of Appeal from the printed matter alone was not in a position to disbelieve the P.W.1, Kunle Otukoya. If the P.W.1’s evidence is believed, as it was by the trial Court, the case of the Plaintiff/Appellant cannot be faulted on the facts.

Question No.4:

Whether Mr. Otukoya ought to have known at least at the close of pleadings that he was going to be a witness

Answer

At the close of the pleadings issues are joined by the parties. It is on those issues that the parties are obliged to call witnesses in proof or disproof thereof. Mr. Kunle Otukoya then knew that the Defendant/Respondent was denying the material and relevant fact that the contents of Ex. A were read over and interpreted to her before she signed before the magistrate. Mr. Kunle Otukoya then had the option of calling the learned Magistrate or of giving evidence himself. He chose to give evidence himself and immediately applied by motion to be dismissed as counsel for the Plaintiff. In any event after giving his evidence he took no further part in the case as counsel for the Plaintiff. This is perfectly legal, perfectly ethical and professionally permissible.

Question No.5:

Whether the learned trial judge was right or wrong in over-ruling Mr. Osinowo’s objection that Mr. Otukoya was incompetent to testify as a witness for the Plaintiff

Answer:

The learned trial judge was perfectly right in over-ruling Mr. Osinowo’s objection. Under Section 154(1) of the Evidence Act the competence of Mr. Otukoya to testify for the Plaintiff cannot be questioned. His evidence for the Plaintiff was legally admissible.

Question No.6:

Was Mr. Otukoya wrong to have accepted a retainer in this case

Answer: No.

Having answered all the six questions, which the judgment of the Court of Appeal appears to have posed, in the favour of the Plaintiff/Appellant, this appeal succeeds on all the seven grounds. The only outstanding question one may like to tackle is one raised by Mr. Lardner, S.A.N. learned counsel for the Respondent in his Brief namely the import and impact of order 4 of the High Court of Lagos State Civil procedure Rules which provides:”

Order 4

Change of legal practitioner

Every legal practitioner who shall be engaged in any cause or matter shall be bound to conduct the same on behalf of the plaintiff or defendant, as the case may be, by or for whom he shall have been so engaged. until final judgment unless allowed, for any special reason, to cease from acting therein, by the Court of its own motion, or on application made by the plaintiff or defendant or the legal practitioner, as the case may be, not less than three clear days before the date fixed for hearing, but such legal practitioner shall not be bound, except under express agreement, or unless re-engaged, to take any proceedings in relation to any appeal from such judgment.”

I must observer that the above Order exits to protect the interest of the la-client. If there is any breach of the provisions of order 4 above, it is the day-client who will naturally complain. The Plaintiff/Appellant has so far not complained that his counsel deserted him in the middle of the case. I do not think it is open for the Defendant/Respondent to make an issue of that. Also the object of counsel applying to withdraw “not less than three clear days before the date fixed for hearing” is to enable the client affected to arrange for representation by another counsel. Here the Plaintiff/Appellant was not embarrassed or put into any jeopardy by Mr. Otukoya’s withdrawal as Mr. Agbesanwa immediately replaced Mr. Otukoya, If therefore one looks at the spirit and intendment of Order 4 above, it is easy to hold that it has substantially been complied with in this case.

In the final result and for all the reasons given above, this appeal ought to be allowed and it is hereby allowed, The appeal judgment and orders for cost made by the Court of Appeal are both set aside, The judgment of Oshodi, J, delivered on 11th May, 1982 in favour of the Plaintiff is hereby restored and affirmed, There will be costs to the Appellant in this Court which I assess at N300,00 and also costs in the court below assessed at N400,00.


SC.85/1985

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