Mr. Z.O. Obolo V. Rev. J.D. Aluko & Ors.(1976)
LawGlobal-Hub Lead Judgment Report
D. A. R. ALEXANDER, C.J.N.
The issue in this appeal appears to us to be a simple one. The learned trial judge ruled as follows:-
“In a civil case whilst the plaintiff cannot win his case without calling evidence, the defendant is not obliged to give evidence in which case defendant could still win his case without saying a word. I do not doubt the authorities cited that a party could call his opponent as a witness and provided he is willing he is a competent witness. However there is no law to compel the defendant to give evidence for the plaintiff”.
Learned counsel for the appellant cited before us the case of Elias v. Disu & Ors. (1962) 1 All NLR.214, on which he had relied before the trial court, as authority for the proposition that the defendant was not only a competent witness for the plaintiff but also a compellable witness in the circumstances.
Mr. J.A. Omakwu the 6th respondent in this appeal (who is a legal practitioner by profession) announced to this court that he is representing all the other respondents as well as appearing in person. He contended that even if the defendant was a competent witness, the defendant was not compellable to give evidence on behalf of the plaintiff if the defendant was unwilling to do so. He submitted that the case of Elias v. Disu only decided that a party could not require his opponent to testify on his application unless the opponent was willing to do so.
In the case of Elias v. Disu it was held that, in a civil action, a party is competent to give evidence not only upon his own application, but also upon that of his opponent; and the fact that no subpoena had been issued is immaterial to the question of competency. In the circumstances of the case on appeal a subpoena had been issued and served on the defendant who attended the trial in obedience to such subpoena. Mr. Omakwu conceded that the defendant is a competent witness under Section 154 of the Evidence Law and that he does not fall within any of the exceptions as regards ‘compellability’ specified in the succeeding sections of the Evidence Law. We are ourselves firmly of this view and we also regard the authority of Elias v. Disu as having placed the matter beyond doubt, especially when read in conjunction with Section 154 and succeeding sections of the Evidence Law.
We have no hesitation in allowing this appeal. The appeal is accordingly allowed and the decision of the learned trial judge reversed. We hold that the defendant is both competent and compellable to testify on behalf of the plaintiff, especially as the defendant concerned has already been served with a subpoena for the purpose.
It is further ordered that the respondents do pay to the appellant costs in the court below assessed at N20.00 and in this court assessed at N100.00.
Other Citation: (1976) LCN/2354(SC)
