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.

Briefs of argument were subsequently filed and exchanged by the parties but at the hearing of the appeal on the 6-6-2016 the Respondent?s counsel applied to withdraw the Respondent?s brief of argument filed on 17-8-2012 on the ground that he no longer intends to contest the appeal. The said Respondent?s brief of argument was accordingly struck out by this Court.

The Appellants however adopted and relied on their brief of argument dated 17-8-2012 and filed on the same date.

In the said Appellants brief settled by UCHE OBIORAH and IKENNA OKOLIE Esq., two issues were distilled for determination as follows:-
(1) Whether the order of the Lower Court made on 23rd of April, 2012 recalling the Appellants? 1st witness should be set aside for failure to meet up with the requirements of a good decision of a Court of justice?
(2) Whether the trial Court was right to have dealt with the Respondent?s application before the Lower

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Court on the merits before making an order recalling the Appellants? 1st witness?

Given the decision of the Respondent to opt out of the appeal by withdrawing his brief of argument, I am minded to deal with the appeal on the merits, based on the Appellants? brief alone. In this regard I shall adopt the two issues raised in the Appellants? brief to consider the appeal.

ISSUE 1
Learned Counsel for the Appellants herein referred to the order of the Lower Court granting the order to recall the CW1 to point out that the said order was made notwithstanding the counter-affidavit and written address filed against the Respondent?s application and the argument adduced in opposition to the application, the Lower Court in deciding on the application made the order without any reference to the argument for and against the application and without giving any reason for the decision. He cited the case of OLUYEMI VS IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR (PT 270) 468 at 476 and ALOR VS NGENE (2007) 27 NWLR (PT 1062) 163 on the meaning of the word ?Decision? and what a decision should consist of.

?It was then submitted that

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a review of the decision of the Lower Court will show that there is nothing in it indicative of the fact that the Lower Court made any conclusions on fact and law but simply stated in one sentence that ?order for recall is granted.?

On what a good judgment should be like, he cited the case of OGBORU VS UDUAGHAN (2012) MRSCJ (Vol 1) 15 and ABACHA VS FAWEHIMI (2002) FWLR (PT 4) 568. It was then contended that in the instant case, inspite of the fact that the application was contested, the Lower Court in granting the application did not set out the nature of the action before the Court and the issues in controversy. It did not also review the cases presented by the parties or consider the relevant laws raised by the parties or give reason for arriving at its conclusion to grant the application.

In this regard, the said order of the Lower Court to recall the CW1 did not meet up with the requirement of a good decision of a High Court, having failed to disclose the reasons for its conclusion. He relied on the following cases. AGBANELO VS UBN PLC (2000) 7 NWLR (PT 666) 534 at 537; IMOGHEME VS ALOEWIE (1995) 7 NWLR (PT 1409) 581 at 593.<br< p=””

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This Court was then urged to set aside the said order for failure to meet the standard of a good decision of a Court of justice.

ISSUE 2
Herein the submissions of Learned Counsel for the Appellants are not different from that made on Issue 1, except that in this issue, emphasis was laid on the fact that the Court took arguments on the merits with regard to the Respondent?s application for a recall of the CW1 but the decision reached thereafter by the Lower Court did not deal with the application on the merit. For this he cited the case of MOBIL PRODUCING (NIG) UNLIMITED VS MONOKPO (2003) 18 NLWR (PT 852) 346; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR (PT 146) 578 at 590 and IKONO VS DE BEACON FIN. & SEC. LTD (2002) 4 NWLR (PT 756) 128 at 138.

It was further submitted that having failed to consider the arguments canvassed by the Appellants in opposition to the Respondent?s application, as contained in the Appellants? written address dated 31-1-2012, the decision of the Lower Court cannot be allowed to stand.

Further reference was made to Section 15 of the Court of Appeal Act to invite this Court to assume jurisdiction to

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hear the Respondent?s application dated 25-1-2012 and dismiss same.

As earlier stated in this judgment, the Respondent withdrew the Respondent?s brief of argument on the ground that he no longer want to defend the appeal. This judgment is therefore based on the Appellant?s brief alone. This is premised on the trite law that an Appellant will succeed on the strength of his case. But the Respondent will be deemed to have admitted the truth of everything stated in the Appellant?s brief of argument in so far as it is borne out of the Records. See UNITY BANK PLC VS BOUARI (2008) 7 NWLR (PT 1086) 372; WAZIRI V WAZIRI (1998) NWLR (PT 533) 322. In CAMEROON AIRLINES VS OTUTUIZU (2011), it was held that not filing Respondent?s brief in no way puts the Appellants at an advantage, since the judgment of the Lower Court is in favour of the Respondent. Therefore the Appellant still needs to show that the judgment of the Lower Court was wrong. ?It is therefore not automatic victory for an Appellant where the Respondent fails to file brief of argument or withdraws same as in this case. The Appellant must therefore succeed or fail

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based on his brief of argument. Vide, TRACTOR & EQUIPMENT (NIG) LTD VS INTERGRITY CONCEPTS LTD (2011) LPELR (5034) CA; JOHNHOLT VENTURES LTD VS OPUTA (1996) 6 NWLR (PT 470) 101.

In the light of the above stance of the law, I will now address the two issues raised in the Respondent?s brief of argument and they will be taken together.

Now the Appellant?s contention is that inspite of the affidavit and counter-affidavit as well as written addresses filed by the parties pursuant to the Respondent?s application to recall the Appellant?s first witness (CW1) the Lower Court did not deem it fit to consider them but proceeded to make a scanty order granting leave for a recall of the CW1.

It is not in dispute that the Respondent filed motion on notice dated 25-1-12 for leave to recall Claimant?s witness MR. JOSEPH MOMAH for the purpose of cross-examination and which motion was supported by an eight paragraph affidavit and a written address filed also on 25-1-2012, as shown in pages 19 to 22 of the Record.

?It is also without doubt that the Appellants? also opposed the said application with a 9 paragraph

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counter-affidavit and written address filed on 31-1-2012.

Ordinarily, the end result would have been for the Lower Court to deliver a considered Ruling based on the parties affidavit evidence and written submissions duly adopted on the 29-3-2012. On the contrary, the following was all that the Lower Court ruled at its proceedings on the 23-4-2012.
“COURT = Cost shall be in the cause the proposed questions filed by the Learned Counsel for the Defendants is hereby struck out and the prayer to recall is answered, no cost awarded.
COURT= Order for re-call is granted. Case is adjourned to 16th May, 23rd and 24th May 2012 for the re-call and trial in this cause.?

It is no where shown in the Ruling/Order that the application was considered or that the parties affidavits and written submissions were taken into consideration in making the order for a recall of the CW1.

In this regard, the view of the Supreme Court in the case of MOBIL PRODUCING (NIG) UNLIMITED VS MONOKPO cited (supra) by Appellant?s Counsel is quite apt to the effect that:-
?It has been laid down in many decisions that it is the duty of a Court to

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entertain and decide on the merit of any application brought before it by a party notwithstanding the perceived strength or weakness of such application.?
I do also agree and rely on the decision in IKONO LOCAL GOVERNMENT VS DE BEACON FINANCE & SECURITIES LTD (2002) 4 NWLR (PT 756) 128 where this Court held that:-
?Where a trial Court had arrived at a decision without considering an essential issue between the parties, that decision cannot be allowed to stand.?

The situation in the instant case is even made worse by the fact that none of the issues raised by the parties in their affidavit and counter affidavit as well as written submissions was considered or addressed by the Lower Court before jumping to the conclusion and making the order that ?Order to recall is granted.?

This to my mind fall short of the requirements of the decision of a superior Court of record where the parties have hotly canvassed and made submissions via written addresses for and against their stance on the issue in contention based on the application before the Court and which application has not been withdrawn by the Applicant, or

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conceded to by the adverse party.

Every Court and moreso, a superior Court of record has the bounden duty to entertain and hear any motion placed before it by litigants, one way or the other. The Court must give reasons for its decision. In the instant case, the one sentence Ruling/Order by the Lower Court notwithstanding the affidavit and counter affidavit evidence presented by the feuding parties, as well as the written submissions in support of same is no doubt an aberration that could not be allowed to stand. The Ruling/Order of the Lower Court did not state any reason or reasons for granting the order to recall the CW1. It renders it vague and unacceptable. See AGBANELO VS UBN LTD (2000) 7 NWLR (PT 666) 534; OJUGBUE VS NNUBIA (1972) ALL NLR 226; OVUNWO VS WOKO (2011) 17 NWLR (PT 1277) 522. To my mind, the act of the Lower Court in rendering a Ruling/Order in one sentence from a well contested motion on notice smacks of nothing but an unfair hearing to the parties and such Ruling/Order cannot be sustained or supported by an appellate Court. See S.B.N PLC VS B.A.O MOTORS (NIG) LTD (2004) 7 NWLR (PT 873) 579.

?Consequently, having failed or ignored

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to consider the arguments canvassed by the parties for or against the Respondent?s application to recall CW1 for further cross-examination, the Ruling/Order of the Lower Court delivered on 23-4-12 is hereby set aside.

The Appellant had also urged this Court to invoke the provisions of Section 15 of the Court of Appeal Act 2011 to assume jurisdiction to hear and consider the Respondent?s application dated 25-1-2012, given that it does not involve taking of oral evidence but a review and consideration of the parties affidavit and written arguments.

I agree that indeed, in the interest of expeditious hearing of the matter it will be most appropriate to do so because sending the application back for a re-hearing will be unfair to both parties and smack of justice being denied due to unjustified delay.

Now at the proceeding of the Court on 6-6-2011 and after the conclusion of evidence in chief by CW1 MR. JOSEPH MOMAH he was duly cross-examined by the Respondent?s counsel who concluded with the following words.
?No further question.?
“RE-EXAMINATION
West Africa … Co Ltd was the Company which I bought

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from.
That is all for the witness.
COURT = Case adjourned for the 2nd witness 13th September 2011, 11th October 2011, 19th October 2011 but in the meantime I suggest that Learned Counsel should have a round talk on settlement and report to Court on the next adjourned date.?

Subsequently, however, the Respondent filed a motion on notice dated 25-1-2012 seeking the following reliefs:-
“1. An order granting leave to the Defendant/Application to recall the 1st Claimant witness MR. JOSEPH MOMOH for the purpose of further cross-examination.?

It was supported with an eight (8) paragraph affidavit wherein it was deposed as follows:-
1. That I have the consent/authority of Defendant/Applicant to depose to this affidavit.
2. That the Defendant/Applicant informs me I verily believe him as follows.
3. That the leave of this Honourable Court is being sought to enable the Defendant/Applicant to further cross-examine the 1st Claimant witness.
4. That on the 11th of October, 2011 when the 1st Claimant witness was cross-examined certain salient points were omitted which was not deliberate but an oversight on

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the part of the defendant/Applicant solicitor.
5. That failure to tender these documents was not deliberate but an oversight on the part of the Claimant?s Solicitor.
6. That it will be in the interest of Justice if this application is granted.
7. That this application is not intended to prejudice the Claimants/Respondents.
8. That I swear to this affidavit in good faith.

In the two pages written address filed on the same 25-1-12 the issue formulated for determination is:-
?Whether the Court ought to grant the application sought by the Defendant/Applicant.?

The argument in support therein is to the effect that if it is discovered after a witness has been cross examined that his testimony at the trial differs from some other statement made by him, the Court can allow him to be recalled if still within reach for purposes of further cross-examination to impeach his credit. Vide ISAAC OMOREGBE VS DANIEL PENDOR LAWAN (1980) 3-4 SC 71.

The Appellant herein opposed the application and filed a 9 paragraph counter affidavit wherein it was deposed in paragraphs 3 to 8 as follows:-
“3. I have read

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and understood the Defendant/Applicant?s affidavit in support of Motion on Notice dated 25th January, 2012. Paragraphs 4,5,6,7 and 8 of the affidavit are false in their entirety and are hereby categorically denied.
4. The Defendant was given more than enough opportunity to cross examine the Claimants? 1st witness which he did.
5. Contrary to paragraphs 4 and 5 of the Defendant?s affidavit, all the documents and statements on oath intended to be used as evidence in this matter have long been frontloaded and were available to the Defendant before the cross examination of the Claimants? 1st witness.
6. There is no new fact or evidence which has arisen since after the cross- examination of the Claimants? 1st witness.
7. The Plaintiff will be greatly prejudiced if the Defendant?s application is granted.
8. The Defendant?s application lacks merit and is a ploy to delay the suit and ought to be dismissed with substantial costs.”

In the written address in support dated 31-1-2012 the issue for determination is:-
?Whether the Defendant?s application ought not to be

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dismissed.?

It was therein argued vide ONWUKA VS ONWUKA (2001)7 NWLR (PT 713)695 AT 713 that where an application is made for recalling of witnesses, to grant or refuse the recall is discretionary and must be done judicially and judiciously.

He added that it is well established that a Court does not exercise its discretion in a vacuum but upon material facts presented to it by the applicant. He cited the following cases in support of his argument. XTODEUS TRADING CO VS VINCENT STANDARD TRADING CO. (1999) 8 NWLR (PT 412) 244 and DONGTOE VS CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (PT 717) 132.

While further contending that the Respondent was personally responsible for its default in not cross-examining the CW1 properly on the alleged salient points alluded to, learned counsel referred to the case of MHAMBE VS SHIDI (1994)2 NWLR (PPT 326) 321 where the Supreme Court in holding that Ignorance, carelessness and negligence of a party to a suit is no defence in law refused an application for extension of time sought by in Appellant.

It is trite that a party seeking the exercise of the Court?s discretion in his favour must

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provide veritable and sufficient material that will move the Court to so do. This is so given that a Court?s discretion can only be properly exercised if it is done judiciously and judicially.

In the instant case the materials provided for the Lower Court are found in paragraphs 4 and 5 of the affidavit in support which reads thus:-
4. That on the 11th of October, 2011 when the 1st Claimant witness was cross-examined, certain salient points were omitted which was not deliberate but an oversight on the part of the defendant/Applicant solicitor.
5. That failure to tender these documents was not deliberate but an oversight on the part of the Claimant?s Solicitor.

What can be gleaned from the above set out portion of the affidavit in support of the application for leave to recall (CW1) is that the Respondent?s Counsel omitted to cross-examine the CW1 on certain points and such omission which involves a document was an over sight on the part of the counsel.

?A situation where a party seeks to recall a witness after he has duly exercised his right of cross examination and concluded same, followed by a re-examination by the

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other party is a rare occurrence given the fact that it may lead to the unpalatable experience of affording a party the opportunity to have a second bite at the cherry. It is understandable where there is an amendment to pleading of either of the parties and fresh evidence is introduced. But for a party to seek to recall a witness he has duly subjected to cross-examination in a civil action simply because he had just remember a question he would have asked the witness will no doubt open a flood gate of endless trials and will make nonsense of litigation in our advertorial system of justice.
Perhaps such application can be granted in the interest of justice and upon exceptional circumstance being shown by way of cogent credible and substantial material presented to the Court. It seems to me that it is not one of the prayers grantable as a matter of course in the exercise of the discretionary powers of a trial Court. The invocation of the inherent powers of the Court in such situations must be done with caution, even when such recall is at the instance of the judge who may do so for the purpose of making the witness explain or elucidate his previous

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testimony. See TABAA VS LABABEDI (1974) ALL NLR 361 OR (1974)4 SC 101; ONUOHA VS STATE (1989)2 SC (PT 11)115. Thus in MUSA VS DALWA (2010) LPELR (9154) CA. This Court per Rhodes Vivour JCA (as he then was) held inter alia that a counsel seeking to have a witness recalled must:-
(a) Supply the Court with good enough facts as to why he wants the witness recalled.
(b) What questions he intends to ask the witness.
It is only on (a) and (b) above that the trial judge can exercise his discretion to grant the application.

In the instant case, I cannot but agree with the submission of the learned counsel for the Appellants that there are no new facts or evidence presented before the Court since the conclusion of cross-examination of the CW 1 and that the Respondent failed to supply sufficient materials upon which the Court can exercise its discretion in granting the application.

?The reliance on oversight on the part of the Respondents counsel in asking relevant questions during cross-examination of CW 1 is not indeed a justifiable ground to grant the application to recall a witness for further cross-examination after he has been duly cross-examined,

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re-examined and discharged by the Court. The case MHAMBE VS SHIDI cited supra by Appellants counsel is indeed apposite to the circumstance of this case, to the effect that ignorance, carelessness and negligence of a party to a suit is not a defence in law.

If every act of carelessness, ignorance, negligence or ineptitude is allowed to be revisited and corrected just for the asking then there will surely be no end to litigation. We pray that such scenario will not be added to the history of our jurisprudence.

In the circumstance, I hold that the application dated 25-1-2012 for leave to recall CW1 lacks merit and it is hereby dismissed.

The said suit No LD/1698/2006 is hereby ordered to be remitted back to the Chief Judge of Lagos State for reassignment to another judge for accelerated hearing and determination.
Parties shall bear their respective costs.

Other Citations: (2016)LCN/8921(CA)