The Automatic Telephone And Electric Co. Ltd Vs The Federal Military Government Of The Republic Of Nigeria (1969)

The parties to this appeal were the parties to an arbitration being conducted under the Arbitration Act (Cap. 13).

The respondent, who was the claimant at the arbitration, had called witnesses and during the evidence of those witnesses the present appellants, who were the respondents at the arbitration, had tendered some documents in cross-examination and had also earlier put in by consent some documents as exhibits.

At the close of the claimant’s case counsel for the then respondents indicated that he was calling no witnesses and an issue then arose over the order of addresses by counsel. The arbitrator, Mr J. E. David, was asked to rule in the matter and he did so as follows:-

“Chief Rotimi Williams has asked me to rule that he has a right of reply in this arbitration. This I am unable to do. Chief Williams has put in `81′ exhibits by consent. He has also put in exhibits ‘82’ through Mr Bedford one of the witnesses for the claimant. Exs. `83′ and ‘84’ through Mr. Lassode another witness for the claimant. This witness was recalled with leave, by Chief Williams.

I have no power to change the practice of law which I know had been going on in the courts for over 25 years, unless I am shown a new rule or order changing that practice. This has not been done. I therefore rule that Chief Rotimi Williams must address first”.

The then respondents thereupon asked the arbitrator to state a special case under section 15 of the Arbitration Act to the High Court of Lagos for its opinion on two matters, only one of which is relevant to this present appeal and which is now set out, namely:- “Have the respondents, who have tendered exhibits by consent before the hearing began, and through the witnesses for the claimants at the hearing, the right to address last if they call no witness to give oral evidence and put in no documents after the claimants have closed their case?”

On the 25th of March, 1968 in Suit M/55/68 the learned Chief Justice of Lagos, Taylor C.J., gave his opinion stating:-

“I hold that the learned arbitrator was correct in the view he held that the defendants must address first and then the claimants have the right of reply”. The respondents at the arbitration have appealed to this Court against that opinion and in our ruling on the 31st December, 1968 we indicated that an appeal would lie as of right as that opinion was to be treated as a final decision within the meaning of section 117 (2) (a) of the Constitution, and we now have to determine the appeal on its merits.

Each party was here claiming the right to the last word in the addresses before the arbitrator and it was not in dispute that the practice at arbitration was to be the same as that before the High Court, and it is necessary, therefore, to turn to Order XLI of the Supreme Court (Civil Procedure) Rules (Vol. X of Laws of Nigeria, 1948) which apply in the High Court of Lagos to see what is there laid down, and we think it is desirable to state at once that in our view it is the interpretation of the rules there that must determine the issue, not what is or was the English practice as was canvassed both before the learned Chief Justice of Lagos and before us by both parties.

This is essentially a matter of procedure and the appropriate legislative body has prescribed what it considered the most suitable procedure and we cannot see that one procedure can be considered more just than another, as was submitted to us. Either procedure can arguably be described as just but it is what is prescribed that matters.

We do not therefore derive any assistance from referring to the English practice, which has in fact been changed today from what it was earlier and neither the present Order 35, rule 7 of the English Rules of the Supreme Court nor the former Order 36, rule 36 of those Rules had similar wording to the rules in our Nigerian Order XLI, or to decide English cases on the English practice at different times. It is, as we have said, the interpretation of Order XLI that must determine the matter for us and it is convenient here to set out rules 4 to 10 of that Order:-

“4. When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.

5. When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.

6. If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence.

7. The case on both sides shall then be considered closed.