Samuel Okonkwo & Anor V. Austin Nwaoshai (2016)

LawGlobal-Hub Lead Judgment Report

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. 

This is an appeal against the decision of the High Court of Lagos State delivered by OYEKAN ABDULAHI J. on the 23rd day of April 2012 wherein the Learned Trial Judge granted the Respondent?s application to recall the Appellant?s first witness for the purpose of further cross-examination.

The Appellants herein had as Claimants at the trial Court instituted an action by a writ of summons dated 31-10-2006 against the Respondent herein as Defendant, whereby he claimed inter alia, for an order of declaration of title, injunction and damages for trespass in respect of the land known as No 13 Oduduwa Street, Ikate, Suru-lere, Lagos.

Pleadings were subsequently exchanged by the parties together with the written statement on oath of the witnesses for the parties, and the documents proposed to be tendered in evidence at the trial.

At the commencement of the trial on 6-6-2011, the Appellants fielded their first, witness MR. JOSEPH MOMAH, who after his evidence in chief was duly cross-examined by the Respondent and thereafter discharged by the Court after

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the Respondent?s counsel had indicated that he had no further question to ask him and the matter adjourned for the Appellants to call their next witness.

However, the Respondent by a motion on notice dated 25-1-2012 applied for an order of the Court to recall the CW1, Appellants? witness for further cross-examination.

The Appellants opposed the said application by filing a counter affidavit and written address dated 31-12-2012.

At the proceedings of the Lower Court on 23-4-2012 the Respondent sought to serve on the Appellants? counsel, a list of questions intended for the further cross-examination of the CW1 but this was objected to by the Appellants? counsel on the ground that the content of the said document ought to be contained in an affidavit and insisted that arguments having been concluded on the Respondent?s motion for recall, the Court should deliver its Ruling on it.

The Lower Court struck out the document containing the proposed questions for further cross-examination and concluded as follows:-
“COURT= Order for recall is granted. Case adjourned to 16th May, 23rd May and 24th May 2012 for the

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recall and trial of the cause.?

This formed the basis for the Appellants discontent whereby they filed a Notice of Appeal on the 4th May 2012 and it contains two grounds of appeal.