Ogberejeko Ogboou V Eriyota Oogha And Another (1967)
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The appellant who was the defendant in an action in the High Court, Warri, Mid-West Nigeria has appealed against the judgement of that Court awarding against him in favour of the respondents damages in the sum of £25 and an injunction restraining him, his servants and/or agents from trespassing on the plaintiffs farmland. The farmland is, according to the plaintiffs, situate to the east of Ovbori village in Aghara Clan in the central Urhobo district of the Delta Area and shown edged purple in the plan produced by them and admitted in evidence as exhibit P1. The defendant also produced a plan admitted as exhibit D1. According to him, the land in dispute is part of land called by him Uveghegemu. Of the four grounds of appeal filed on behalf of the defendant only two were argued and the others were abandoned. One of the grounds argued was that the judgement was against the weight of the evidence given in the case. The argument in this connection needs no further comment as we are satisfied that the judgement is sufficiently supported by the evidence properly accepted by the learned trial judge.
The other ground of appeal argued is as follows:-
‘4. That the trial judge erred in law when he, after the close of the case for the plaintiffs and defence, and after counsels closing speeches had been taken, called on the plaintiffs surveyor to submit a new plan which was tendered in evidence.’
It is not in dispute that after counsel for both parties had addressed the court at the conclusion of the hearing the judge stated that although the plans tendered by the parties were said to be made on the same scale, yet they showed different positions of the land in dispute, and that he was not satisfied with the plans produced by both parties, and ordered that the plaintiffs surveyor should go on the land ‘armed with defendants plan exhibit D1 and show on his own plan exhibit P 1-
(a) the exact position of the land which the plaintiffs claim as being trespassed upon vis-a-vis the land which the defendant claims as his land edged red in exhibit D1; and
(b) the exact position of the Okpara Road which the defendant has shown in his plan exhibit 01 but which the plaintiffs have not shown on their plan exhibit P1.’
A plan showing these features as on the plaintiffs plan was thereafter prepared and produced in evidence as exhibit P2 by the plaintiffs surveyor who was thereafter cross-examined on it by defendants counsel. The cross-examination established that the features now reflected on exhibit P2 corresponded with their counterparts in the defendants plan exhibit D1.
Before us it was contended that the judge was not entitled to ask the plaintiffs surveyor to produce this further evidence, that the action of the judge was tantamount to helping the plaintiffs to make out a case which they should be held to have failed to prove and that the plaintiffs case should have been dismissed if their plan did not support their case. On behalf of the plaintiffs it was submitted that the course adopted by the judge was not improper, that the cross-examination of the plaintiffs survey or on recall merely confirmed what was already properly in evidence before the court, and that such recall was necessary in the interest of justice.
The case itself is not simple on the facts. The action was for trespass by the defendant to a portion edged brown to the north-west of the area edged purple in exhibit P1. The defendant did not dispute the entry on the land but stated that the entire land claimed by the plaintiffs including the area of trespass was included within a very much larger piece of land belonging to himself and his family. He showed his land edged green on his plan exhibit D1 and sited the area of trespass on the extreme south edging it pink or red. On both plans the Oghreja stream is shown as the south-east boundary of the land claimed by the plaintiffs. Within the pink area and within its north, western and south-western boundaries the defendant had included lands claimed by the plaintiffs to belong to their own boundary men whom also they called as their witnesses. The plaintiffs did not join issue with the defendant in respect of the rest of the land within the green area in exhibit D1 and so the vital issue in the case was whether or not the plaintiffs boundarymen were actually in possession of the lands to the north, west, and south-west of the purple area in exhibit P1. If this were so it will establish the improbability of the story of the defendant, who admitted that his own village of Edjekemevo was about a mile away to the north-east of the land in dispute, since he would have had to pass through the lands of the plaintiffs boundarymen on the north, west and south-west to come into the land in dispute.
After the close of the case of the plaintiffs and before the defence opened, counsel for the defendant had put in evidence the defendants plan as exhibit D1, without calling his surveyor whom he stated was then ill. Counsel for the plaintiffs agreed to the production of the plan in this way as long as that course did not involve an acceptance by the plaintiffsthat the plan was accurate. After the defendant and three witnesses were called and before the case for the defence was closed, the judge observed as follows:-
‘Although the plan of the defendant exhibit Dl has been admitted in evidence by consent. there has arisen in course of the evidence for the defendant some discrepancies as to description, names of places, etc. on the plan prepared by his surveyor Mr John. I therefore agreed with the consent of counsel for the plaintiff to allow the surveyor to be called to give evidence.’
In pursuance of this order the defendants surveyor was called and in the course of his evidence he stated that the western boundary of the pink area in exhibit D1 was not the same as the western boundary of the purple area in the plaintiffs plan exhibit P1.
Now it is obvious that the plan exhibit P2 merely resolved the confusion which had been created by the difference in the location of the western boundary of the land in dispute on exhibits P1 and D1 and that plan reflected before the court that which was implicit in the evidence already given by the parties in the case. Quite apart from the provisions of Order 35, rule 1 of the Western Nigeria High Court Rules (which then applied) it cannot be disputed that a judge has got a discretion to recall a witness in the interest of justice in order to explain or confirm a point on which evidence has been given but which requires some elucidation. The point arose before the Court of Appeal as to the stage of the proceedings at which the judge was entitled to exercise this discretion; this was the case of Bigsby v. Dickinson (1876) 4 Ch. D 24 and at p. 28 James, L.J. observed as follows:-
‘And at no period of a cause is it too late to shew that confusion and error have arisen from two persons, or two plans, or two things passing by the same name, and more especially to shew that through such confusion the court had been deceived by a misleading experiment performed in its own presence.
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; but it will be as wrong to say that a judge has an unfettered discretion to call or recall a witness in civil proceedings at any stage of the trial as to say that he has no right to recall a witness at any stage of the proceedings even 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.
We have already referred to the circumstances under which the judge in this case exercised his discretion to recall the plaintiffs surveyor, and viewed in the light of those circumstances the argument of counsel for the defendant must fail.
We see nothing improper in the exercise by the judge in the present circumstances of a discretion which he undoubtedly possessed and we cannot accede to the submission of counsel that the judge was wrong in taking the course which he did. This ground of appeal also fails.
Other Citation: (1967) LCN/1478(SC)