Sabotu Ariku & Anor V. Yesufu Bale Ajiwogbo (1962)

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ADEMOLA, CJF

We dismiss this appeal on the 29th October, 1962; we ordered that the case be remitted to the High Court, Ibadan, for retrial. We now give our reasons shortly for so doing as we said we would.

In 1957 the plaintiff in the case filed his action originally in the Native Court (Lands Court) at Ibadan for declaration of title to land and an injunction. On first April, 1957, the Court, after hearing the case, entered judgment in favour of the plaintiff. The defendants appealed to the Native Court of Appeal, namely the Judicial Court of Appeal, which Court affirmed the judgment of the Court of first instance. The defendants then appealed to the High Court of the Western Region. The learned Judge of the High Court, as he is entitled to do, decided to hear the case de novo. After hearing evidence in the case, the learned Judge of Appeal reversed the judgment of the Native Court and entered judgment in favour of the plaintiff against the First defendant for a declaration of title to the land and for injunction; and against the Second defendant for recovery of the land in question. The defendants were aggrieved by this judgment and have appealed to this Court.

Grounds 3 and 4 of the appeal, which were the only grounds we heard arguments on before calling on the plaintiff/respondent’s Council, are as follows:-

(3) The learned Trial Judge misdirected himself as to the evidential value of the evidence taken by the Court of fast instance and he thereby came to a wrong decision in the case.

(4) The learned Trial Judge having decided to hear the case de novo, erred in law in directing his mind to certain passages in the Court of first instance in the process of forming his own decision on the evidence before him.

Mr. Agbaje, for the appellants, pointed out certain portions of the judgment in which the learned Judge quoted in extenso evidence of certain witnesses in the Lands Court (first instance), which witnesses were not before him. It was pointed out that in different parts of his judgment; the learned Judge had referred to the proceedings in the Lands Court quoting the evidence of these witnesses, although they had not been used for any purpose in the proceedings before him.

Mr. Fakayode, for the plaintiff/respondent, found himself unable to support the judgment in this particular respect although, in his view, the learned Judge was led into this error by Counsel for the defendants/ appellants when he sought to discredit a witness during the trial by introducing evidence of one of the witnesses before the Native Court.

This Court has frequently directed attention to the practice, now not uncommon, of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade v. Aborishade 5 F.S.C. 167 at p.171, this is only permissible under Section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also prerequisites to the making use of the former testimony of a witness; for example, his attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion: see a recent judgment of this Court in F.S.C. 377 / 1961 Asuquo Udo Enang AND ano. v. Akpan Akpan Okono AND 2 others : Asuquo Udo Enang AND ano. v. Edem Udo Ekanem AND others (1962) 1 All N.L.R. 530, decided on the same day the present appeal was heard, namely 29th October, 1962.

The present case went further than the two cases referred to. Here the learned trial Judge made use in his judgment of evidence of witnesses in a previous case although he himself had not seen or heard these witnesses. There can be no doubt that the criticism of the use of this evidence by the Judge was justifiable and it was gross enough to vitiate his judgment in the case.

In the circumstances, it was decided that the justice of the matter will best be met by a retrial and we so ordered.

Other Citation: (1962) LCN/1005(SC)