J. Elabanjo Vs Alhaja A. O. Tijani (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This is an appeal against the judgment of the Court of Appeal Lagos Division. In a lead judgment delivered by Uthman Mohammed – J.C.A. to which Nnaemeka-Agu and Kutigi, JJ.C.A. concurred, the Court of Appeal set aside the judgment of Oshodi J. of the Lagos High Court awarding the plaintiff (now appellant) N100.00 damages for trespass and an injunction “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.”

PAGE| 2 In the Court of first instance, the Plaintiff gave evidence and tendered the purchase receipt of the land in dispute as EX. B and the Conveyance to him of the land in dispute duly executed by the Defendant/Respondent to this appeal. The plan of the land in dispute was attached to EX. A. The Plaintiff also tendered EX. C written for and on behalf of the Defendant by her Solicitors, Coker & Coker. Exhibit C was a public notice posted by the defendant on the land in dispute. Exhibit C contained the following relevant and material particulars:

“2. Our client has complained of recent acts of trespass on parts or portions of her lands and she hereby states for the information of all and sundry that apart from only 10 (ten) acres of such lands sold by her to one D. T. Elabanjo (conveyance dated 5th day of November, 1969 and registered as No. 19 at p.19 in Volume 1305 of the Register of Deeds kept in Lagos) she has not sold any portion of her land to any one else.”

It is pertinent here to note that the particulars of the Deed of Conveyance pleaded by the Plaintiff in paragraph 1 of his Statement of Claim and tendered in evidence as EX. A agree in all respects with the defendants description in paragraph 2 of EX. C of the land she sold to the Plaintiff. Exhibit C is an admission by the Defendant/Respondent that she sold the land in dispute to the Appellant.

In a short but well written and very carefully considered judgment, the learned trial judge, Oshodi, J. reviewed the pleadings, the evidence led on either side and exercised the prerogative of a judge who saw the witnesses, heard their evidence and watched their demeanour – the prerogative to believe one side and disbelieve the other. He held:- “There is evidence before me that the contents of EX. B (the Purchase Receipt) were read over and interpreted to the defendant by Popoola in the presence of the Plaintiffs Solicitor even though Mr. Popoola signed as a witness and not as an interpreter.

I believe and accept the evidence of Mr. Otukoya and Mr. Popoola on this point. With regard to Exhibit “A” itself I am satisfied that the defendants evidence as to its execution is false. It is an afterthought. I do not believe the defendant that the document was executed in the house of Mr. Shomefun her former husband. The execution was before a magistrate in the court. The 10 acres were validly sold to the Plaintiff. The plaintiff went into possession and 10 years later the defendant disturbed his possession by going on the land and-damaging the pillars and palm trees on it.”

PAGE| 3 Needless to say that on the above findings, the learned trial Judge was fully justified in awarding the Plaintiff damages for trespass and in “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.” The Defendant appealed against the above decision of the High Court to the Court of Appeal. In a 19-paged judgment, 18 of which were devoted to a discussion of “the role played by a lawyer, Mr. Kunle Otukoya,” Uthman Mohammed, J.C.A. allowed the appeal of the defendant, set aside the judgment of Oshodi, J. and “dismissed the claim of the respondent before the High Court.” The Plaintiff who was Respondent in the Court of Appeal, as I observed earlier on, has now appealed to the Supreme Court on 7 grounds. I will now deal with Ground 7 which is the omnibus ground:- “That the decision is against the weight of evidence.”

I must add at this point that the Appellant applied to the Court below for leave to argue grounds involving facts or mixed law and fact as provided by Section 213(3) of the 1979 Constitution and under Order 3 Rule 3(2) of the Federal Court of Appeal Rules. His application for leave was on the 29th day of April 1985 refused by the court below. (See p.155 of the Record of Proceedings). However on the 29th day of May 1985 this court granted the appellant “leave to appeal against the decision of the Court of Appeal dated 25th February, 1985 both on questions of fact and of mixed law, and fact” – (see p.156 of the record of proceedings).

If the facts of this case, as set out in the evidence of the witnesses, were dispassionately considered without beclouding them with the issue of the desirability or undesirability of counsel giving evidence in a `case in which he was briefed as, counsel, it would have been quite clear that on the findings of fact of the trial Court, there was not much an appellate court could do. Now, ordinarily it is not the function of the Court of Appeal to disturb the findings of fact of the trial Court especially where those findings are based, as in this case, on the credibility of witnesses who testified before the trial Court: unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion.

It is in this regard that an appellate Court will take the view that not having heard or seen the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. It has to be re-emphasised that it is not the business of an appellate Court to substitute its own views of the facts for those of the trial judge who saw, heard and believed.

There is no need citing authorities for the above PAGE| 4 propositions for their name is legion for they are many. Ground 7 of the Grounds of Appeal thus Succeeds. The remaining 6 grounds of appeal dealt with one aspect or another of the issue that fully occupied the attention of the Court of Appeal namely: 1. Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence. 2. Whether Mr. Otukoya who filed the Writ of Summons, the Pleadings, and Summons for Directions was in law a competent witness and whether his evidence ought not to have been expunged from the record by the learned trial judge.

3. Whether the fact that Mr. Otukoya did give evidence for the Plaintiff/Appellant will be a witness. 4. Whether Mr. Otukoya ought to have known at least at the close of the pleadings that he was going to be a witness. 5. Whether the learned trial judge was right or wrong in over-ruling Mr. Osinowos objection that Mr. Otukoya was incompetent to testify as a witness for the Plaintiff. 6. Whether Mr. Otukoya was wrong to have accepted a retainer in this case.

The above six grounds were argued together as they all dealt with the consequences, legal or professional or both, of learned counsel briefed by a party turning a witness and going into the box to give evidence for his client. It is clear that in this case the Court of Appeal reversed the decision of the trial Court and therefore and thereby set aside the findings of the trial Court.

The question now is – Was the Court below justified in so doing? What reasons did it give for so doing? Are those reasons valid? In his lead judgment Uthman Mohammed, J.C.A. noted at p.141 of the record of proceedings:- “Two vital issues are the centre piece of the argument of learned counsel for the appellant ….. The first issue is the question about the role played_ by a lawyer, Mr. Kunle Otukoya who initiated the proceedings, in respect of the claim of the respondent (the plaintiff) before the trial Court,” Later on in his lead judgment (pp. 140/147) the learned justice of the Court of Appeal observed:- “I do not entertain any doubt to hold therefore that the evidence of Mr. Otukoya is very vital to the plaintiffs case.

This fact he must have known even before the writ was taken out by the Plaintiff. Mr. Otukoya is therefore wrong to accept a retainer in a case in which he had reason to believe that he would be a witness.” PAGE| 5 The lead judgment concluded on the following note:- “In the circumstances even if the evidence of Mr. Otukoya had been expunged from the record the respondent could not have proved his claim on the evidence adduced before the Court”.

The central issue in this appeal are- should the evidence of Mr. Otukoya be expunged from the record? Put in another way – Was Mr. Otukoya, who acted as counsel for the plaintiff before the actual hearing but did not represent the Plaintiff at the hearing, a competent witness for the plaintiff? I say competent because if a witness is competent his evidence is admissible.

Its weight may be an entirely different matter. In his judgment, Uthman Mohammed, J.C.A. at p.144 held: “The learned trial judge was in error to over-rule the objection raised by Mr. Osinowos learned counsel for the defendant in the court below, against the testimony of Mr. Otukoya.” What was Mr. Osinowos objection? It was that “Mr. Otukoya is not competent to give evidence in this case as he had been counsel and advocate for the Plaintiff.”

On general principles one can safely say that the object of any trial is to ascertain the truth of either a criminal charge or of a civil claim. The trial is thus the process by which the Court endeavours to find out the truth of falsehood of the case. This is done by witnesses giving evidence. Anyone who has personal knowledge of the facts relevant to any issue in the case is by and large competent to give evidence unless otherwise excluded by law.

On the supposition that the intended evidence is true, can the opposite party suffer merely because such evidence is given by someone who at a stage acted as counsel for the party calling him? It is said, and it is still true. That “the truth can produce no harm.” The truth may overthrow and overturn the opponents case, (as it did in the case now on appeal) but from the point of view of the administration of justice, it is no more than right that this should result. The learned trial judge believed that Mr. Otukoya was speaking the truth and that Alhaja Tijani was lying to the court. She herself confessed that she lied to the magistrate when she told the magistrate that EX. A and EX. B were read and interpreted to her before she signed them. How does one deal with the testimony of a self- confessed liar but to tell the truth, and expose her lies?

That was exactly what Mr. Otukoya found himself compelled to do. PAGE| 6 The question whether or not learned counsel should (not could, for counsel definitely can give evidence) give evidence in a case in which he has acted or is still acting as counsel has had a long and romantic history in English and American jurisprudence. Wigmore in his treatise on Evidence 3rd Edition Vol. VI from pages 586 to 606 considered at some length whether judges, jurors, and learned counsel should give evidence in cases with which they are involved as such judges, jurors or counsel. At page 586 the learned author stated:-

“That a judge may give testimony as a witness in a trial before a Court of which he is a member seems in the classical English practice not to have been doubted, although the precedents are scanty. It is not clear whether a judge so testifying was regarded as bound to retire from the Bench thereafter during the trial, but the propriety and legality of his taking the stand when needed seems to have been assured….. The controversy that arose over this problem concerned a different principle, namely, the judges duty, and

Other Citation: (1986) LCN/2256(SC)