Arewa Ile Plc V. Alwang Samuel & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE J.C.A.

In this appeal the only issue for determination distilled by the appellant’s ground of appeal is: “Whether the learned trial judge erred in law in refusing to allow the defendant to call the 8th plaintiffs as a witness in the course of the conduct of the defence case because.

(1) The 8th plaintiff was both a competent and compellable witness for the defence.

(2) The fact that the 8th plaintiff had testified in the course of presentation of the evidence for the plaintiffs and was cross examined by the defence and that he had not been served with a witness summons is material to the right of the defence to call him as a witness more so as he was present in court and the ground of objection raised by his counsel was not that he had not been issued with a witness summons.”

The respondent issue is as follows:

“Whether the 8th plaintiff/respondent as Daniel Ujoh was a compellable witness for the defence in view of the facts and circumstances of this case.”

The two issues in the appeal contest the competence and compellability of the 8th plaintiff to testify for the defendant, when their interests are dissimilar in court. The appellant who was the defendant in the court below has stated in his brief on the facts that the 8th plaintiff out of the 12 plaintiffs before the court had testified as the 1st plaintiff witness in the suit. The defendant had cross examined the said plaintiffs 1st witness, and other witnesses had testified for the plaintiff. The claims of the plaintiff in the court below was for a specified sum averred to be due to each of the said 12 plaintiffs who sued the defendant jointly.

At the opening of the case for the defence, the appellant called as his first defence witness the 8th plaintiff. The said witness had been sworn in to testify and would have continued but for the observation made by the court as to the compellability of the 8th plaintiff to testify as a defence witness without a subpoena being previously served on him to do so. The Respondent’s counsel thereafter made a final objection as to the competence and compellability of the 8th plaintiff to testify for the Defendant. Section 155 of the Evidence Act provides that:

“all persons shall be competent to testify unless the court consider that they are prevented from understanding the questions put to them or from giving material answers to those questions by reason of tender years, extreme old age, disease whether of the body or mind or any other course of the same kind.”

The discretion appears to be given to the court to determine whether a competent witness may or may not be allowed to testify despite the provisions of the law which enabled all persons to be competent to testify when the law provides as follows:

“unless the court consider that they are prevented from” etc.

The question therefore as to whether a competent witness is also compellable so to do, depends also on the situation of the case, and the decision to so compel the witness lies in my view on the consideration of the court or a determination of what is feasible in the case. Except in a few stated instances as provided for in the Evidence Act, for an example as contained in the Book, laws of Evidence in Nigeria by Dr. J. Akinola Aguda, published in 1966, on the issue similar to the instant appeal. See: ALH. ELIAS Vs. OLAYEMI DISU & ORS., reported in 1962 ALL NLR.214. In the case, the plaintiff brought an action against the defendant to set aside a sale and conveyance of a piece of family land by some members of the family.

At the trial two of the plaintiff’s gave evidence. When the defence opened its case, counsel for the 1st defendant applied to call the plaintiff who had not given evidence. No objection was raised by counsel for the plaintiff nevertheless the trial trial judge rules that the plaintiff was not a competent witness for the defence. The issue went on appeal before Breh, a Federal judge at the time, who ruled as follows: The learned appellate judge quoted the provisions of section 157 of the Evidence Act in pari material with our now section 158 Evidence Act and held as follows:

“That the learned trial judge was in error for holding the plaintiff was an incompetent witness in the case of the defence.

(2) “There is nothing in this (section) to indicate that a party in a civil suit is only competent to give evidence upon his own application as in the case under section 159 proviso (a) of the Evidence Act, with a person charged with an offence, although it is rare for a counsel to take the risk of calling on opposing party, (to testify for him) I have no doubt, that the judge was wrong in ruling that the plaintiff was not a competent witness for the defence. The fact that no subpoena had been issued was immaterial on the question of competence.”

There is of course a wide difference in the above facts in Elias case, and in the instant appeal. In the facts of the case cited above, the plaintiff called to testify and held to have been properly called to testify for the Defendant, had not testified at the hearing. In the instant appeal, the 8th plaintiff called by the defendant to testify for the defence had testified for the plaintiff at the opening of the case as the 1st plaintiffs witness and he had been cross examined by the defence; Would that fact not affect the competence of the 8th plaintiff to testify for the defence as the 1st defendant witness?

My opinion is that it would generally not matter, and the 1st plaintiff witness may be competent as 1st defence witness but he is not compellable. The 8th plaintiff could be competent to testify for the defence even though he had been cross examined by the defence counsel. In this appeal it is my opinion that the circumstance of the claim of the plaintiff for a sum of money he claimed is due to him, would jeopardise his own interest if he could be compelled to testify for the defendant. If a witness is compelled to testify for another whose claim or interest contradict his own interest such a person who is a Nigerian is in my view thereby denied on the one hand a right to freedom of thought and of freedom of expression under section 38 and 39 of the Constitution of Nigeria of 1999. On the other hand if such a witness is compelled by the court to testify for the defendant, he being a plaintiff who has joined others to prosecute a claim is now compelled by the court to associate with the defendants for whom he is to testify he is thereby denied a right of freedom to associate with whom he chooses, which also offends the provisions of section 40 of the 1999 Nigeria Constitution.

As recorded above, it is not every competent witness who is compellable. The act of giving testimony in a court of law necessarily affects the mind and conscience of the witness. If therefore a competent witness is compelled by the order of court to testify for a party against whom he does not have a common interest, any oath taken by the witness before his testimony negates a desire to speak the truth, before the court. In my view the competence to testify in such a situation is only to ensure the overall public interest but the lack of compellability of the witness is to balance and protect the interest of the individual.

For the above reasons, I will and do conclude that the 8th plaintiff witness may be competent to testify for the defence, and because the said 8th plaintiff was present in court the issue of a subpoena will be unnecessary. I am not of the view that the 8th plaintiff is compellable to testify for the defendant, after the said 8th plaintiff had testified for the plaintiff as the 1st plaintiff witness. It is also my view that the said 8th plaintiff who is the 1st plaintiffs witness will if compelled to testify for the defence loose face in the society and be thereby denied his own right to protect his own interest. Besides, it will, and could lead to absurdity. I rule therefore that the 8th plaintiff and 1st plaintiffs witness is not compellable to testify for the defendant though he is competent.

The appeal is dismissed, cost of N3.000.00 for the Respondent.

Other Citations: 2001)LCN/0984(CA)