Ordor V. Nwosu & Anor (1974)
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DAN IBEKWE, JSC.
The plaintiff and the 2nd defendant in this case are husband and wife. They are married under the Marriage Act, but they now live apart. The plaintiff is a civil servant, and the 2nd defendant is the proprietress of a weaving industry. After their marriage, the couple lived together. But during the recent civil war they began to fall apart, and by the time the war ended in 1970, they had completely fallen apart. As is usual in such cases, either party now accuses the other of desertion.
This suit arises from the rival claims which the couple have each set up to a leasehold interest in respect of the property known as No. 7 E.C.N. Road, Aba. On the 29th day of September, 1971, the husband as the plaintiff instituted this action against his wife as the 2nd defendant, and the lessor as the 1st defendant, claiming:- “1. A declaration that he is entitled to the Leasehold of the property No. 7 E.C.N. Road, Aba, and 2. An order setting aside the purported lease made between the 1st and 2nd defendants in respect of the said property.”
The plaintiff’s case is as follows. On the 20th day of August, 1963 he said that he negotiated a lease of the land in dispute with the 1st defendant for an “irrevocable perpetual period” at an annual rent of 40/-, and that, after paying £300 premium to the 1st defendant, they both entered into “a memorandum of a lease.” In 1967, the plaintiff engaged the services of one Mathias Chukwura, a licensed surveyor, to carry out a survey of the land in dispute and the surveyor produced plan MEC/260/67 for which he was paid his fees by the plaintiff. Afterwards, the plaintiff engaged the services of the late Barrister Anyiam Osuigwe who prepared a deed of lease which was executed between the 1st defendant and himself, and the plaintiff’s signature on the lease was witnessed by his wife, the 2nd defendant.
After execution, the documents were handed by him to the 2nd defendant for registration at Enugu but that the 2nd defendant failed to register them. Whenever the second defendant was asked about the documents she simply gave one reason or another. Finally, on the 30th of March, 1971, the 1st defendant granted a lease of the property in dispute to the 2nd defendant. Hence, the plaintiff was obliged to bring the present action. Fraud was not pleaded in his statement of claim, nor was it raised at the trial. On the other hand, the case of the 2nd defendant is diametrically opposed to that of the plaintiff. The 2nd defendant claims that the 1963 lease was negotiated by her, but that the lessor insisted that the agreement should be signed between him and the plaintiff who is her husband.
In 1967, it became necessary for her to raise a loan in order to develop the disputed land and, as she was asked to produce her title-deed, the plaintiff then suggested that a fresh agreement should be drawn up in her name. Accordingly, she approached one Mathias Chukwura, licensed surveyor, who made a plan of the land for her, and she paid the surveyor his fees. She, later on, engaged the services of the late Barrister Anyiam Osuigwe who drew up a deed of lease for her, and that the lease was duly executed between the 1st defendant and herself; and her husband, the plaintiff, witnessed her signature on the lease.
After execution, she took the lease to the Ministry of Lands, Enugu, for registration, but, subsequently, the documents were returned to her unregistered, on the ground that the plan attached to the lease was not counter-signed by the Surveyor-General. In support of this allegation, the 2nd defendant produced the covering letter from the Surveyor-General, which was received in evidence at the trial and marked Exhibit “T”. When she wanted to take the documents back to Enugu for registration, the plaintiff refused and persuaded her not to go. As a result, the documents were put in their cupboard in Aba, and they got lost when Aba was overrun by Federal troops in 1968. After the war, she approached the lessor and informed him of the loss of the 1967 lease. As a result, a fresh lease was entered into between the 1st defendant and herself, and the lease is registered as No. 74 at page 74 in volume 294 of the Lands Registry in Enugu. It is relevant to mentioned here that at a certain stage during the trial, the learned trial Judge decided to call the Surveyor-General who was not called by either party to testify. After hearing evidence, the court adjourned the case for judgment. In a reserved and lengthy judgment, the learned trial Judge, after reviewing the conflicting claims before him, entered judgment for the plaintiff as follows:- “There will therefore be judgment for the plaintiff against the defendants as follows:- 1. A declaration that he is entitled in equity against the 1st defendant to the leasehold of the property situate and known as No. 7 E.C.N. Road, Aba. 2. An order setting aside as null and void the lease executed by the 1st defendant and the 2nd defendant dated the 30th day of March, 1971 which lease agreement was duly registered as No. 74 at Page 74 in Volume 494 of the Lands Registry in the Office at Enugu.”
Aggrieved by this decision, the defendants have accordingly brought an appeal to this court. Of the five grounds of appeal filed, only the three following grounds were relied upon by Mr. M.A. Agbamuche, learned counsel for the appellants:- “(1) The learned trial Judge erred in law and in procedure by calling a witness on his own the Surveyor-General without the consent of the appellants and erred more by relying on the evidence of the said Surveyor-General in the judgment when the said evidence was also full of hearsay and inferences. (2) The learned trial Judge erred in law by setting aside the deed of lease between the 1st defendant and the 2nd defendant on the suit of plaintiff/respondent who is not a party to the deed. (3) The judgment is against the weight of evidence.”
Before dealing with the interesting points of law raised by this appeal, we think that we should first of all draw attention to the fact that, at the trial, the case put forward by the 2nd defendant was substantially supported by the evidence given by the P.W.3, Mathias Chukwura, licensed surveyor who, incidentally, was called by the plaintiff. In his evidence, the surveyor said inter alia, as follows:- “It was the 2nd defendant who retained my services for the preparation of Exhibits E and F. She paid me all the professional fees. I have never before met the plaintiff except now in Court.” It is sufficient to observe here that the plans, Exhibits “E” and “F”, are in the name of the 2nd defendant and that they were indeed made in 1967. They, therefore seem to support the claim put forward by the 2nd defendant. Furthermore, the story told by the 2nd defendant, though disbelieved by the learned trial Judge, was entirely supported in every material respect by the evidence given at the trial by the lessor, the 1st defendant. We wish to point out that the 1st defendant was also disbelieved by the learned trial Judge. We shall now revert to the legal argument which poses two important questions, as follows:- (1) Has the court the power to call a witness not called by either of the parties in a civil case? (2) Has the court the power to set aside a deed of lease at the instance of a person who is not a party to such deed? Dealing with the first question first, we wish to say that the vexed question as regards the power of the court to call a witness not called by the parties has now been settled by two well-known decisions of this court. In Bell-Gam v. Bell-Gam (1965) 1 All NLR 106 at 107 this court, after fully considering the question as to whether it is open to the court to call a witness not called by either party in a civil case, laid down the law as follows:- “There are two English cases on the point:- Coulson v. Disborough (1894) 2 Q.B. 316, CA., and In re Enock and Zaretzky, Bock & Co’s Arbitration (1910) 1 KB 327, C.A.
The second comments on the first and the net result, as we understand it, is that a judge has no power to call a witness except with the consent of the parties. The situation may arise in which it appears to the Judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him his witness. The Judge may call him as a witness with the acquiescence of the parties and ask him the questions on which the Judge thinks the witness can help. If his answers are useless on the issue in the case, neither party would be allowed to cross-examine him; but if his evidence is adverse to a party, that party should be given leave to cross-examine him on his answers only.”
Again, the question as to whether the court has power to recall a witness at any stage during civil proceedings came up for consideration before this court in the case of Ogbodu v. Odogha & Anor. (1967) 1 All NLR 173, and the law was also laid down at p. 176, as follows:- “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 has 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.” In our view, the net result of the two authorities cited above is that in civil proceedings a Judge lacks the power to call a witness without the consent of the parties. In exceptional circumstances, and mainly for the purpose of throwing light on the case, the Judge may with the acquiescence of the parties call or recall a witness. It is in the interest of justice that, where confusion has arisen from the evidence before the court, such confusion should not be allowed to becloud the issues which the court is called upon to determine. It is also very much in the interest of the parties and the court that, as far as possible, the facts upon which the parties seek to rely should not be allowed to be shrouded in mystery. In such circumstances, the court may, with the acquiescence of the parties, exercise its power to call a witness not called by either of them. And for the same reason, the court may recall a witness. As we understand it, this power is rarely used, for in civil cases, the Judge should be completely outside the ring. His role is to attempt to balance the scale evenly between the parties and, in the end, to pronounce his verdict. If and when the power is exercised, the party adversely affected by such testimony is entitled to cross-examine the witness. We simply observe that, in the present case, the Surveyor-General was called because he was in a position to throw light on the case, and his evidence, in fact, shed a good deal of light on the issues before the court. He produced Exhibit “Z” which is the original of Exhibits “E” and “F”, and which, in our view, resolved the doubt as to whether the 1967 plan by Chukwura was made either for the 2nd appellant or the respondent. It turns out that Exhibit “Z” bears the name of the 2nd defendant/appellant and not that of the plaintiff/respondent. Regrettably enough, the learned trial Judge drew a wrong inference from the valuable evidence given by the Surveyor-General.
In any case, the record of appeal shows that the witness was called with the acquiescence of the parties, since there did not appear to have been any objection by counsel on either side. We, therefore, are of the opinion that the learned trial Judge was within bounds when he exercised his power as he did in the present case. As for the other question as to whether the learned trial Judge has power to set aside the deed of lease in favour of the plaintiff/respondent who is not a party to the deed, the answer must be in the negative. The law on this point has been settled beyond controversy by such a line of cases that we do not think that it is any longer necessary to cite authorities in support of it. We, therefore, take the view that it is not within the competence of the court to set aside a deed of lease at the instance of a claimant who is a stranger to the lease. Moreover, as we have already stated, we are convinced that the respondent’s case has little or no merit. It, therefore, seems to us that the decision of the learned trial Judge in this case is ill-founded, de factor et de jure. Accordingly, the appeal succeeds and it is allowed. The decision of the High Court, Aba, delivered on the 22nd September, 1972 together with the costs awarded to the respondent therein cannot stand and it is hereby set aside. Instead, the respondent’s claim against the appellants is dismissed. And this shall be the judgment of the court. The respondent shall pay to the appellants N100.000 costs in the court below, and the costs of this appeal assessed at N138.00
Other Citation: (1974) LCN/1839(SC)
