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Oso Aya (alias Oso Effiong) & Anor v. Emmanuel Daniel Henshaw & Anor (1972) LLJR-SC

Oso Aya (alias Oso Effiong) & Anor v. Emmanuel Daniel Henshaw & Anor (1972)

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    2. IQUO EKPONG INYANG – Appellants


    2. EFANA DANIEL HENSHAW – Respondents


The plaintiffs claimed 200pounds damages for trespass together with an injunction to restrain the defendants from further acts of trespass on the plaintiffs’ land in Plaint: MU/62/58 in the Chief Magistrate’s Court, Calabar but on the 28th December, 1960 the learned Chief Magistrate dismissed the claim with 50 guineas costs holding, as we understand the judgment, that the defendants were entitled to build where they did as it was not on land awarded to the plaintiffs in a judgment by Webber J. in Suit No. 610/1910 delivered on the 21st September, 1911. The plaintiffs appealed against that decision to the High Court, Calabar but during the course of the argument of counsel, Mr. Anwan, the record reads as follows:

“Court to both Counsel: My impression of this case is that the evidence therein is unsatisfactory in some respects. And I feel like exercising the powers conferred on this Court by Order 56,rules 16 and 17.

Anwan: I would like to conclude my arguments.

Court: You may continue.

Anwan continues: At page 44 paragraphs 33-34 the learned Chief Magistrate adjourned for inspection of locus before counsel’s addresses. And page 45 contains the Inspection Notes. I refer to paragraphs 7-14 of same page 45 I draw attention to lines 15-19 of the Inspection Notes.

Court: Having heard all the arguments, I am still determined to make an order based on Order 56, rules 16 and 17. I will adjourn for the order, and will cause it to be served on the parties.”

An order was then made by the learned judge in the following terms:

“Between: APPEAL No. C/35A/1962.

Emmanuel D. Henshaw & Anor. Plaintiffs/Appellants


Iquo Ekpong Inyang Defendant/Respondent

In exercise of powers vested in the Court under ORDER 56, Rule 16 of the High Court Rules, 1955, I, MOSES ONUORA BALONWU, Puisne Judge of the Calabar Judicial Division of the High Court of Eastern Nigeria of the Federal Republic of Nigeria, hereby order as follows:

I. That the surveyors of both parties to these consolidated suits (that is suits No. MU/62/1958 and No. MU/63/1958 before the Magistrate, and known as Suits Nos. C/35A/1962 and C/35AA/1962 in this Court) in the company of the said parties go on the land the subject-matter of the said suits, namely, AKANI 0810 land in ORON, which was also the subject-matter of Suit No. 610/10: Chief Etim Ebito & Others versus Daniel Henshaw & Others, and using the PLAN exhibit C in the above consolidated suits, tendered by the plaintiffs therein, and made by surveyor Williams and dated 24-7-11, demarcate on the said land by means of cement pillars to be provided by the plaintiffs herein, the boundary between Joseph Henshaw’s land (comprising the family lands of Ayofo, Abiak Edibe, Aba Darki, Ebung Atok Atok and Edua Mum) and Idua Asang land stretching from this boundary to the Eyo Abasi land boundary, as shown on the said PLAN exhibit C by Daniel Henshaw.

  1. That the said surveyor thereafter prepare a new plan which will show exactly the same land as is contained in the said PLAN exhibit C and insert thereon:

(a) The boundary hereinbefore demarcated on the land.

(b) The areas trespassed upon being the causes of action in the aforesaid consolidated suits, namely the houses erected by the defendants on the said land.

  1. That the said surveyors complete the above plan within one month of this order, and hand a copy thereof to each of the parties, and a copy to the Registrar of this Court signed by both surveyors and countersigned by the Director of Surveys, Enugu, and appear in court to give evidence accordingly on a date to be appointed by the Court.
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Issued at Calabar under the Seal of the Court and the hand of the Presiding Judge this 23rd day of January, 1964.(Sgd.) R.A. LEWIS-ALLAGOA

Registrar High Court.”

The defendants have appealed against that order to this Court.

Chief Williams on their behalf argued initially grounds of appeal that read:

“1. The learned judge did not exercise his discretion properly in making an order under Order 56, rule 16 in view of the fact:

(a) that there was no application before him praying for any such order;

(b) that the appellant’s counsel specifically requested the High Court to remit the case back to the learned magistrate for retrial;


(c) that there was no proof before the court that the additional evidence sought to be introduced on appeal could not with reasonable diligence have been obtained during the trial at first instance.

  1. Having come to the conclusion that the evidence at the trial was unsatisfactory, the learned judge of the High Court should either have:

(a) dismissed the appeal; or

(b) reversed the judgment of the magistrate and entered a non-suit; or

(c) referred the case back to the magistrate by appellant’s counsel” (sic).

It was first his submission that the learned judge on appeal had no power suo motu and without the consent of the parties to make the order that he did which we have already set out. He relied on In re Enoch v. Zaretzky,Bock and Co.’s Arbitration [1910] 1 K. B. 327 at 332 and Bell [1965] 1 All N.L.R. 106 at 109 as showing that a judge should not call a witness of his own volition. He submitted that the provisions of Order 56, rule 16 of the High Court Rules in force in Eastern Nigeria which reads:

“16. The Court may, in any case where it may consider it necessary that evidence should be adduced, either:

(a) order such evidence to be adduced before the Court on some day to be fixed in that behalf; or

(b) refer the case back to the Magistrate to take such evidence, and may in such case either direct the Magistrate to adjudicate afresh after taking such evidence and subject to such directions in law, if any, as the Court may think fit to give, or direct him, after taking such evidence, to report specific findings of fact for the information of the Court; and on any such reference the case shall, so far as may be practicable and necessary, be dealt with as if it were being heard in the first instance.”, should be constructed accordingly to mean that a judge on appeal should only exercise that power to order evidence to be adduced if the parties either asked him to do so or consented to his proposal to do so and neither of those situations applied here. He pointed out that in England the powers of the Court of Appeal under Order 59, rule 10(2) of the English Supreme Court Rules which reads:

“The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”are exercised only on the application of the parties.

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Now to our mind there are vital distinctions between the cases relied on by Chief Williams and the present case. First they pertained to a judge sitting at first instance; secondly they were not dealing with a specific statutory provision such as Order 56, rule 16 of the High Court Rules of Eastern Nigeria; thirdly what the judge on appeal was really doing here, as we see it, was recall witnesses to give fresh evidence. In Evoyoma and Ors. v. Daregba and Ors.(1968) N. M. L. R. 389 we confirmed the principle that a trial judge should not enter the arena and call witnesses himself but we also reaffirmed the right of a trial judge to recall witnesses in appropriate circumstances when we said at page 391:

“Moreover, a trial judge should never, at least without the consent of both parties in a civil action, call a witness of his own volition, see In re Enoch v. Zaretsky, Bock, & Co. Ltd. [1910] 1 K. B. 327 which was approved in Jones v. National Coal Board (1957) 2 All E.R. 155, where Denning L. J. at page 159 said:

‘Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales-the ‘nicely calculated less or more’ -but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties; see Re Enoch v. Zaretsky & Co. [1910] 1 K.B. 327.’

and this Court in Ogbodu v. Odogha (1967) N. M. L. R. 221 at 223 indicated there was no general discretion in the judge to call a witness himself when we said:

‘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.’ ”

Moreover when there is statutory provision it should, as we have often said, be given its ordinary natural grammatical meaning and here we do not see on that basis any justification for importing into the words contained in Order 56, rule 16 any limiting words that the judge on appeal may only exercise his discretion with the consent of the parties.

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Where there is specific statutory provision it is certainly not the duty of any court to try to avoid its consequences and interpret it in such a manner as to fit it into English practice if it is in fact differently and clearly expressed, as to our mind Order 56, rule 16 is. We think that Order 56, rule 16 gives a judge on appeal the unfettered right to call such evidence and whilst we would agree that he should exercise that discretion judicially and with care, provided he does so we see no objection. We think also that it is very much easier for him to recall a witness to give further evidence under these provisions than for him to summon a fresh witness. Further we see no substance in Chief Williams’ contention that the power to make these Rules under section 84 of the High Court Law of Eastern Nigeria should be read down so as to limit it to what is done in England. In some High Court Laws in force in the Federation of Nigeria, such as in section 55 of the High Court Law in force today in the Northern States, the same provision as appears in Order 56, rule 16 is specifically inserted in the Law itself. Moreover quite apart from that, no ground of appeal was, anyway, filed here that dealt properly with this issue.

Chief Williams then submitted that the passage to which we have referred on the appeal in the High Court showed that the learned judge on appeal was not satisfied with the plaintiff’s case when he decided to make the order that he did, and that being so in the submission of counsel the learned judge on appeal should have dismissed the appeal, but that proposition quite overlooks the provisions of Order 56, rule 16 and when the heading to Order 56 is “Appeals from Magistrates’ Courts to the High Court in Civil Cases” and the power is there in rule 16 we see no reason why the learned judge on appeal had not the right to exercise it before determining whether the plaintiffs had made out their appeal. We agree that it is a much more liberal approach than is given to a trial court, but when the legislation permits it there is no reason to fetter the power.

Finally Chief Williams argued a ground of appeal that read:

“The learned judge of the High Court erred in law in failing to observe that on the facts before him it would appear that the Magistrate’s Court had no jurisdiction to entertain the plaintiff’s claim in view of the fact that the essential issue is one of title to land.”

He in no way however showed to us what facts before him established that the learned Chief Magistrate had no jurisdiction and we see no necessity therefore to entertain this ground of appeal.

We accordingly see no substance in this appeal and it is dismissed with 130 guineas costs to the plaintiffs/respondents. The appeal to the High Court will therefore be dealt with there in due course on its merits.


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