South-eastern State Newspaper Corporation & Anor V. Edet Asuquo Anwara (1975)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

In the High Court of the South-Eastern State sitting in Calabar, the plaintiff claimed against the South-Eastern State Newspaper Corporation the sum of N150,000.00 as damages for the wrongful termination of his appointment as the defendants’ general manager on 7th August, 1973.

Pleadings were ordered on 24th September, 1973. On 18th October, 1973, before the pleadings were delivered, the plaintiff applied to the court for “an order to amend the writ of summons by joining the South-Eastern State Public Service Commission, for itself and as representing the South-Eastern State Statutory Corporations Service Commission, as the second defendants in the action.”  Paragraphs 3 and 4 of the affidavit filed in support of the application read:-

“3. That at the time of filing the suit I had not placed all the documents relating to this action at the disposal of my counsel, O.A. Esin, Esq.

4. That upon studying all the relevant documents, my said Counsel has advised me, and I am convinced and verily believe, that it is right and necessary that the Public Service Commission of the South-Eastern State should be joined as the second defendant in this suit.”

At the hearing of the application on 13th November, 1973, learned counsel for the applicant applied orally to tender one of the documents referred to in paragraph 4 of the affidavit and conceded in the process that the document ought to have been annexed to the said affidavit at the time of filing the motion. Learned counsel for the defendant objected to the tendering of the letter in that manner, firstly because it was not specifically referred to in paragraph 4 of the affidavit and secondly because the document was only a copy of a letter addressed to the applicant. Learned counsel argued further that since the original of the letter was with the applicant he should have tendered that and not the copy. The objection was upheld by the learned trial Judge and the application to tender the document was refused. At that stage, learned counsel for the applicant successfully asked for an adjournment to enable him to produce the original.

At the resumed hearing of the application on 15th November, 1973, learned counsel for the applicant applied orally again to tender the original letter of termination of appointment. Learned counsel for the respondent again opposed the application. The ground for the objection were recorded by the learned trial Judge as follows:

“In a case of this nature, the proper way of tendering such a document is by affidavit evidence or by oral evidence if the court exercises its discretion under Order XXXV rules 23 and 24. That no foundation has been laid in the affidavit sworn to by the applicant nor has the court allowed any oral evidence to be led to support the tendering of this document. He refers to rule 24. He submits that if even the Court was minded to call oral evidence, this would not be expedient because to do so would amount to assisting the applicant to the prejudice of the respondent.”

In reply, learned counsel urged the court to admit the letter in evidence and observed that at the previous hearing a copy was produced and was rejected whereupon he asked for adjournment in order to produce the original. He then referred to Order XXXV rule 24 and maintained that there is a discretion in the court to receive a document in evidence and that it is expedient to admit that particular document.

The learned trial Judge adjourned the hearing to 21st November, 1973 for a ruling. The objection was eventually over-ruled and the letter was admitted and marked as Exhibit 1. In his ruling on the motion to join the South-Eastern State Public Service Commission as the 2nd defendant which he delivered on 4th December, 1973, the learned trial Judge observed as follows:-

“I have considered the affidavit and arguments put forward by both counsel. The evidence on a motion is usually affidavit evidence. Order XXXV rule 4 of the High Court Rules requires that ‘There shall be filed with the motion paper all affidavit on which the person moving intends to reply. I take ‘reply’ as used in this con to mean rely.”

He thereupon granted the application to join the South-Eastern State Public Service Commission after observing further as follows:-

“During the hearing of arguments in this motion, I had allowed documentary evidence in addition to the affidavit by virtue of Order XXXV rule 24 of the High Court Rules which provides that – ‘In addition to or in lieu of affidavits the court may, if it thinks expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it, to be examined or cross-examined before it in the like manner as at the hearing of a suit. A  document was therefore tendered by counsel for the applicant as Exhibit 1. I have read Exhibit 1.  It is a letter of the termination of appointment of the applicant addressed to him by the South-Eastern State Public Service Commission. The counsel for the respondent had contended that the affidavit of the applicant should show what relationship existed or exists between the defendant on the writ and the defendant sought to be joined. It is my humble view that the motion paper itself has disclosed that relationship when it states,

‘The South-Eastern State Public Service Commission, for itself and as representating the South-Eastern Statutory Corporation Service Commission.’