The Automatic Telephone And Electric Co. Ltd Vs The Federal Military Government Of The Republic Of Nigeria (1969)

The parties to this appeal were the parties to an arbitration being conducted under the Arbitration Act (Cap. 13).

The respondent, who was the claimant at the arbitration, had called witnesses and during the evidence of those witnesses the present appellants, who were the respondents at the arbitration, had tendered some documents in cross-examination and had also earlier put in by consent some documents as exhibits.

At the close of the claimant’s case counsel for the then respondents indicated that he was calling no witnesses and an issue then arose over the order of addresses by counsel. The arbitrator, Mr J. E. David, was asked to rule in the matter and he did so as follows:-

“Chief Rotimi Williams has asked me to rule that he has a right of reply in this arbitration. This I am unable to do. Chief Williams has put in `81′ exhibits by consent. He has also put in exhibits ‘82’ through Mr Bedford one of the witnesses for the claimant. Exs. `83′ and ‘84’ through Mr. Lassode another witness for the claimant. This witness was recalled with leave, by Chief Williams.

I have no power to change the practice of law which I know had been going on in the courts for over 25 years, unless I am shown a new rule or order changing that practice. This has not been done. I therefore rule that Chief Rotimi Williams must address first”.

The then respondents thereupon asked the arbitrator to state a special case under section 15 of the Arbitration Act to the High Court of Lagos for its opinion on two matters, only one of which is relevant to this present appeal and which is now set out, namely:- “Have the respondents, who have tendered exhibits by consent before the hearing began, and through the witnesses for the claimants at the hearing, the right to address last if they call no witness to give oral evidence and put in no documents after the claimants have closed their case?”

On the 25th of March, 1968 in Suit M/55/68 the learned Chief Justice of Lagos, Taylor C.J., gave his opinion stating:-

“I hold that the learned arbitrator was correct in the view he held that the defendants must address first and then the claimants have the right of reply”. The respondents at the arbitration have appealed to this Court against that opinion and in our ruling on the 31st December, 1968 we indicated that an appeal would lie as of right as that opinion was to be treated as a final decision within the meaning of section 117 (2) (a) of the Constitution, and we now have to determine the appeal on its merits.

Each party was here claiming the right to the last word in the addresses before the arbitrator and it was not in dispute that the practice at arbitration was to be the same as that before the High Court, and it is necessary, therefore, to turn to Order XLI of the Supreme Court (Civil Procedure) Rules (Vol. X of Laws of Nigeria, 1948) which apply in the High Court of Lagos to see what is there laid down, and we think it is desirable to state at once that in our view it is the interpretation of the rules there that must determine the issue, not what is or was the English practice as was canvassed both before the learned Chief Justice of Lagos and before us by both parties.

This is essentially a matter of procedure and the appropriate legislative body has prescribed what it considered the most suitable procedure and we cannot see that one procedure can be considered more just than another, as was submitted to us. Either procedure can arguably be described as just but it is what is prescribed that matters.

We do not therefore derive any assistance from referring to the English practice, which has in fact been changed today from what it was earlier and neither the present Order 35, rule 7 of the English Rules of the Supreme Court nor the former Order 36, rule 36 of those Rules had similar wording to the rules in our Nigerian Order XLI, or to decide English cases on the English practice at different times. It is, as we have said, the interpretation of Order XLI that must determine the matter for us and it is convenient here to set out rules 4 to 10 of that Order:-

“4. 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 wait for his general reply.

5. 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.

6. 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.

7. The case on both sides shall then be considered closed.

8. If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.

9. Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the court, and the party beginning shall be entitled to the general reply.

10. Documentary evidence must be put in and read, or taken as read by consent”.

Chief Williams for the appellants has submitted to us that whilst section 242 of the Criminal Procedure Act which reads as follows:-

“242. If any witness, other than the accused himself or witnesses solely as to the character of he accused, is called or any document is put in as evidence for the defence, the person appearing for the accused shall be entitled after evidence on behalf of the accused has been adduced to address the court a second time on the whole case and the person appearing for the prosecution shall have a right of reply”. makes it clear that in a criminal matter if the accused at any stage puts in a document then the prosecution has the right to reply, this is not the procedure which Order XLI has prescribed for civil matters. In his submission the words in brackets in rule 4 of Order XLI, namely –

“in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read” – define the meaning of “call evidence” and make it clear that the other party to the party beginning must answer in the negative to the question whether he intends to call evidence if he is not thereafter going to read documentary evidence, by consent or otherwise.

Counsel then submits that the same meaning to the words “call evidence” as is given in rule 4 must be given in rule 8, that is to say so far as documentary evidence is concerned that it is only documentary evidence put in by the “other party” after the party beginning has concluded his evidence. On that basis he asks us to say that, as the appellants called no witnesses and no documents were read or taken as read after the conclusion of the evidence of the party beginning, the learned Chief Justice of Lagos was wrong to give his opinion that the party beginning had the right to speak last or in other words had a right of general reply after Chief Williams had addressed the arbitrator. Mr Jinadu for the present respondent for his part submits that the words in brackets in rule 4 defining the meaning of “call evidence” should be limited to that rule and not imported into rule 6 or 8.

It seems clear to us that rule 4 was contemplating that the “other party” was to be asked, as to calling evidence, his future intention, as not only is the word “intends” used, but also the words within the brackets “and documentary evidence not already read or taken as read” differentiate between such documents and documents which may in fact be read or be taken as read thereafter.

If a document of the “other party” has therefore been either read or has been taken as read by consent, and we do not see that it makes any difference in this context which of these two procedures is adopted (in fact at the arbitration in question both were used by the present appellants), before the party beginning has concluded his evidence the other party must under rule 4 reply in the negative if he intends to call no evidence there-after, and the par

Other Citation: (1969) LCN/1732(SC)