A. Y. Ojikutu V. Arbuckle Smith & Co. Ltd. (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Defendant re-opening his case before judgment.

Facts

The respondents, plaintiffs below, sued the two defendants for breach of contract, and obtained judgment; only the second defendant appealed.

The plaintiffs’ case was that the two defendants came together to their office saying they were partners and the second defendant deposited title-deeds as security for a credit to be opened for the Ojikutu Trading Co.

The trial Judge held that was so upon the evidence and the appellant’s main complaint was that the Judge allowed the first defendant to give evidence; which happened thus:—

Counsel for the first defendant said he submitted to judgment against the first defendant but disputed the amount claimed as general damages; and that he would address on that but not call evidence. Later that Counsel asked for leave to withdraw on the ground that his client now wanted something different: he wanted to go on.

The Judge spoke to first defendant, who said he did not owe all the debt by himself and wished to give evidence. His Counsel was given leave to withdraw; the first defendant gave evidence confirming the plaintiffs; he was cross-examined by Counsel for the second defendant, without objection to the course taken by the Court.

In the appeal of the second defendant it was argued that the Judge could not allow the first defendant to re-open his case.

Held

No judgment had been entered against the first defendant at that stage; the Judge had a discretion, which was rightly exercised in the circumstances.

Appeal dismissed.