The Shell Petroleum Development Company Of Nigeria Limited V. Mr. Reuben Etekoh (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of T.C. Makwe, J., of Warri Division of the Delta State High Court (hereinafter referred to as the trial Court) in Suit No. W328l99 delivered on 27th July, 2004.

The background facts of this matter are that, in November, 1999, the Respondent who was the plaintiff at the trial Court issued a writ against the Appellant as defendant, claiming the sum of two million naira being special and general damages for malicious prosecution. After pleadings have been filed and exchanged by the parties, trial in the suit was commenced on 30th January, 2001, before Hon. Justice T. C. Makwe. The Respondent gave evidence and called his first witness. At the close of the evidence of the said first Respondent’s witness on 24th May, 2001, the Respondent applied for and was granted an adjournment to enable him call some more witnesses. Thereafter there were a Couple of hearing.

On 16th April, 2002, when the case came up for hearing, trial of the case was started de novo before another Judge, D.E. Uwheriavwe who had been posted to Warri Division to replace T.C. Makwe J. On the said date, the Respondent opened his case afresh with his own evidence. On 4th June, 2002, the next date of hearing when the Respondent was to continue with his testimony, the Appellant made an application to the trial court to determine the issue of law, that is, an objection to the competence of the suit as contained in paragraph 11 (b) of its Further Amended Statement of Defence which was predicated on paragraphs 3,4,5,8, 9 and 10 of the Respondent’s 3rd Amended Statement of Claim. See pages 14 and 18 to 20 of the record of appeal.

The arguments in favour of and against the said objection were made by the learned counsel for the parties – see pages 34 to 35 of the record of appeal. In its considered ruling which was delivered on 8ft November, 2002, the trial court overruled the objection of the Appellant, and held impliedly that, the suit is competent.

As can be gleaned from the record of appeal, after the said ruling of Uwheriavwe J., the trial remained in abeyance until 16th June, 2003. On that day, it was Makwe J., who presided, having been transferred back to Warri Division on the retirement of Uwheriavwe J., from the Delta State Judiciary. That day, the case was further adjourned to 23’d July, 2003 for the continuation of the evidence of the Respondent which had commenced on 16ft April, 2002 before Uwheriavwe J., when the case had been started de

novo as earlier on stated above. On the said 23rd July, 2003, the Respondent purportedly closed his case after calling two witnesses in all, being not able to call additional witnesses as earlier indicated by him. After another round of adjournments, the case came up for hearing on 4th December, 2003 when the Appellant was called upon to present its defence.

On 4th December, 2003, the learned counsel for the Appellant indicated his intention to make a no case submission, and, if that bid failed, he would proceed to call evidence in support of the case for the defence. The learned counsel for the Respondent opposed the proposed procedure of the learned counsel for the Appellant.

In the ruling of the learned Makwe J., of 12th December, 2003. it was held that, the Appellant having elected to call evidence, was bound so to do. On the next date of hearing on 16th March, 2004,

the Appellant opened its defence by calling one Victor Akpodiete as DW1. In the middle of the evidence-in-chief of DW1, strangely, the learned counsel for the Appellant presented an “address”. This is contained in pages 46 to 47 of the record of appeal. For clarity and easy reference, I hereunder in extensor reproduce (verbatim), the relevant portion of the said “address” as follows:

Mr. Ovrawah addresses Court: He submits that my brother judge started this case before he was retired and I came back to this court. He delivered a ruling on 8\11\2002 in this case. The Defendant defended this as prosecution constituted by court. He urges court to strike out this on the ground that this case was not started de novo when resumed in this court. He further submits that the plaintiff did not give evidence in support of his pleadings in the new trial. Therefore his case must fail because the Plaintiff has not discharged the burden of proof. BIRI V. MAIRAUWA (1996) 8 NWLR (PT. 467) 425. ALABI V. OLOYA (2001) 6 NWLR (PT. 708) 37 Ratio 9 and submits that section 34 must be complied with before the Plaintiff can rely on the previous proceedings by this court as presently constituted.

BAKULE V. TANERWA NIG. LTD. (1995) 2 NWLR (pt. 380) 728 Ratio 6 at 738. He urges court to strike out this case. The underlined is mine for emphasis).

After the Appellant’s counsel’s “address”, the record of appeal simply has it that, “the witness continues his evidence”, that, he, the Appellant’s counsel wanted the case of the Respondent dismissed – see lines I to 2 at page 48 of the record of appeal. The case was then adjourned for the cross-examination of DW1, which took place on 1st April, 2004, when the defence closed its case.

Subsequently the learned counsel for both parties addressed the trial Court and judgment in the case was reserved.