H. A. Elebute Vs Alhaji A. W. Odekilekun (1969)

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COKER J.S.C.

This appeal is from the judgment of Somolu, J. (as he then was) in Suit No. IK/65/63 decided at the High Court, Ikeja, on the 5th of July, 1965. In the High Court, the appellant then plaintiff had sued the defendant now respondent by virtue of a writ of summons endorsed as follows:-

“The plaintiff’s claim is to establish his title to a piece of land situate at Odi-Olowo, Mushin and known as Plot 17 in Kayaoja’s Allotment The plaintiff also seeks a perpetual injunction restraining the defendant and or his agents from further trespass on the said land.”

Pursuant to an order of the High Court, the parties duly filed and delivered their pleadings and the action was set down for hearing. In view, however, of the conclusion we have reached about this appeal, it is unnecessary to consider the pleadings. At the hearing it would appear that the plaintiff Hector Elebute gave evidence. In the course of his testimony, an adjournment was requested by his counsel to enable him produce some documents. The learned trial Judge granted the adjournment and made the following notes on the record of appeal. “Adjourned till 18th June, 1965 for argument on the partition deeds, the conveyance and the claim of the plaintiff.” At the resumed hearing on the 18th of June, 1965, after writing down the names of counsel on both sides the Judge’s notes read as follows:-

“Notes: By consent the conveyance of the defendant in respect of the land In dispute is admitted in evidence as exhibit ‘J’. David addresses:…”

Thereafter Mr David, counsel for the plaintiff, addressed the court and after him Mr. Awoliyi, counsel for the defendant also addressed the court. The following notes were then made by the Judge:

“Judgment reserved till 5/7165”. On the 5th of July, 1965, the learned trial Judge delivered the judgment in the case in which he exhaustively dealt with the merits and the demerits of the parties’ cases and eventually dismissed the plaintiff’s case with costs. The plaintiff has appealed to this Court against this Judgment complaining inter alia of the deprivation of his right of last address, wrongful reliance on recitals in documents not proved, findings of fraud without pleadings or evidence and so on. We observed ourselves that the record of the case contains no indications whatsoever not only as to whether the plaintiff had concluded and closed his case before the addresses proceeded but also as to whether the particular plaintiff’s witness who gave evidence had concluded his evidence-in-chief. We looked in vain for any indication as to whether the defendant declared that he was not giving evidence or was stopped from doing so. On all these matters, the record is significantly silent. We derive some information, however, on what actually happened from the following observations of the learned trial Judge in the course of his judgment:-

“Only the plaintiff gave evidence in this case and he tendered all his documents, although the deed of conveyance of the defendant was admitted by consent as exhibit ‘J’, because as a result of the state of the pleadings there was no need, in my view, for more evidence to be led and because I called on Mr. David for the plaintiff to satisfy me that his client could obtain the reliefs he seeks from the court.”

It seems manifest therefore that it was the learned trial Judge himself who stopped the case at that state. If that were so and we have no reasons for holding to the contrary, then the complaints of the plaintiff before us are fully justified. Civil cases are proved by preponderance or weight of evidence and it is not the duty of a court unless in accordance with any rules of court to the effect to preclude a party claiming reliefs from discharging that duty, a right to which he is ex debito justitiae entitled. With respect to the order of counsels’ addresses, Order 26, rules 13, 14, 15 and 16 of the High Court Rules (Western State) provide as follows:-

“13. 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 watt for his general reply.

14. 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.

15. 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.

16. The case on both sides shall then be considered closed.”

So it is manifest that the plaintiff will first address only if and when the defendant has stated that he proposes not to call evidence. Without argument, the defence has not said so. in this case and clearly there is no record of any such declaration. The record does not even show that the defence has been asked about this. The plaintiff in those circumstances is therefore entitled to complain as he is doing that he has been deprived of his right of addressing the court last. In view of what transpired at the hearing of this case and the comments which we have expressed we have refrained from commenting on the other issues raised on this appeal including findings of facts upon which there was no evidence and the inferences from, and discussion of, recitals and documents which are not bestowed with any characteristics of presumptions.

The decision is in favour of the defendant and learned counsel for the defendant at first sought to support it. In the end he conceded that the procedure adopted by the Judge was unprecedented and insupportable.

The judgment cannot therefore stand, as R is manifest that there has been no trial according to law. This appeal must be and it is therefore allowed, the judgment of the High Court, Ikeja, in Suit No. IK/65/63 including the order for costs is set aside and it is ordered that the case be sent back for hearing de novo, both sides being given liberty to amend their pleadings and give such evidence as they may be advised.

The respondent will pay the costs of the appeal in this Court fixed at 60 guineas and the costs in the High Court shall abide the event.

Other Citation: (1969) LCN/1631(SC)