Mafidoh Okwa V. Iyere Iwerebor & Ors (1969)

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ADEMOLA, C.J.N.

This is an appeal in a case which Originated in the Magistrates Court at Agbor where the petitioner (now appellant) claimed the sum of £ 100 special and general damages for damage done by the defendants to his crops on his land at Owanta. The learned magistrate, after hearing the evidence, in a considered judgment entered judgment for the plaintiff for £88.10s. and costs. On appeal to the High Court, the appeal was allowed and the judgment of the learned magistrate was set aside. In his judgment the learned judge said:-  ‘Although 5 of the grounds filed were argued. it would be unnecessary for me to deal with all of them as I am satisfied that the appellants could succeed on ground 5, namely that the court erred in law in relying on the evidence of a witness who was never cross-examined by the appellants. In Rex vs. Nwangbo Igbeje W.A.C.A. 2240 (unreported cases) dated 6th July, 1945, their Lordships of appeal, held that:- It is material and essential that a record of a hearing should in all cases show whether an accused did cross-examine or was given an opportunity to do so, and a hearing which does not record this information and wherein a conviction has been made we are of opinion is fatal to the conviction. Although this was a criminal trial, the principle is the same in a civil case.

The record shows that the star witness of the plaintiff Joseph Ordio had not completed his evidence when the case was adjourned on 21st October, 1964 to 29th October. 1964. On the adjourned date, respondents counsel announced to the Court that this witness had died by motor accident two days after the last adjoul1lment and he was accordingly closing his case. That was an unfortunate situation for which no exception is made in our laws. The learned magistrate in his judgment relied on the evidence of this witness who was not cross-examined and in my view it is fatal to the plaintiffs case.’

From this judgment the petitioner has appealed to this Court and the ground of appeal argued was that the learned judge misdirected himself in law and in fact when he said it was unnecessary for him to consider other grounds of appeal other than the one which stated that the learned magistrate was wrong in relying on the evidence of witness who was never cross- examined.

Now, a perusal of the record of appeal before us shows that the learned magistrate in his judgment did not rely solely on the evidence of the witness who had died after his evidence in chief and could not be cross-examined.

The law as to the position of evidence of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal hut the weight to be attached to such evidence should depend upon the circumstances of each case.

In Rex. v. Doolin: Jebb C. C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 L. J. Ch 252 where a witness gave her evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romilly Master of the Rolls said:- ‘ …. but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as I should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined.’

All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajah Ali, All I. R. (1936) Patna 34. In our judgment therefore, the learned judge was in error when he held that it was fatal for the plaintiffs case that the learned magistrate relied on the evidence of the witness who died without being cross-examined on his evidence in chief.

There were other grounds of appeal before the learned judge of appeal, but he did not consider any of these in his judgment: in fact, he said there was no need to. The respondent in this case has given no notice to support the judgment of the learned judge on other grounds or in any other way.

It is therefore not possible for these four grounds to be rescusitated. It is therefore hardly necessary for us to consider whether there should be a retrial. The appeal will, therefore, be allowed.

The judgment and order made by the judge of appeal in this matter are hereby set aside, and the judgment and order pronounced by the learned magistrate are restored.

There will be costs in favour of this appellant in the High Court assessed at 25 guineas and costs in this Court assessed at 65 guineas.

Other Citation: (1969) LCN/1718(SC)