Tiwani Limited V. Citi Trust Merchant Bank Ltd. (1997)
LawGlobal-Hub Lead Judgment Report
KATSINA-ALU, J.CA.
This is an appeal against the decision of Sanyaolu. J. of the Federal High Court, Port Harcourt delivered on 21 July. 1995.
The respondent as plaintiff claimed against the defendant as follows:
- An order of possession of the said vessel;
- The liquidated sum of N6,933,871.88k, being unpaid rental arrears, and over-draft granted to the defendant by the plaintiff at the defendant’s request, with interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January. 1994 till judgment and thereafter total liquidation of the sum;
- An order of specific performance of the contractual obligation to obtain all requisite approvals; and
- Damages for breach of contract, loss of profit, as may be assessed; or in the alternative.
- The liquidated sum of N22,355,783.78k plus interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January 1994 till total liquidation of the debt being the outstanding amount of lease rentals and overdraft.
Pleadings were duly ordered. The plaintiff filed its Statement of Claim to which the defendant filed its statement of defence. The Statement of Defence also includes a counter-claim. Accordingly the plaintiff filed a reply and defence to the counter-claim. On 5th March 1995 the defendant filed a reply to the defence to counter-claim.
Upon the agreement of both counsel on 14/12/94 the learned trial Judge fixed hearing of the substantive case for 23 and 24 January, 1995. Unfortunately, the court did not sit on 23/1/95 though both counsels were in court, so on the prodding of both counsel, trial was further fixed for 15/12/95.
However, for inexplicable reasons, counsel for the defendant did not show up in court for trial on 15/2/95, neither was the defendant represented by any of its officers. Moreover the defendant and its counsel did not deem it necessary to excuse their absence. This being the situation counsel for the plaintiff urged the trial court to commence trial. Thus trial commenced on 15/12/95. P.W.1 Kunle Ajeigbe gave evidence for the plaintiff and the case was adjourned to 24/2/95 for continuation of hearing.
On 24/2/95 both parties were represented by counsel and Mr. Leyimu, of counsel for the defendant sought an adjournment to bring necessary applications to regularize his defence. The application was granted and the case was subsequently adjourned to 28/2/95 for continuation of hearing.
On 28/2/95 defendant’s counsel got the court to regularize defendant’s statement of defence. He then sought an adjournment of further hearing which the trial court rejected. Accordingly hearing of the evidence of P.W.1 continued. Nevertheless P.W.1 could not finish and so his evidence was further adjourned to 16/3/95 with leave to the defendant to file and serve a reply to the defence to counter-claim. if any.
On 16/3/95 the defendant was neither in court nor represented. P.W.1 however continued with his evidence which he concluded on that day. P.W.2 Alfred Soma Jeminimiema also gave evidence on the same day. The case then stood adjourned to the 7/4/95 for address.
On 7/4/95 the defendant’s counsel was again absent in court. Also no representative of the defendant was in court. Plaintiff’s counsel addressed the court and thereupon the learned trial Judge reserved judgment till 16/5/95.
On 16/5/95 the defendant and its counsel in a surprise move served on the court an ex-parte order of Ojutalayo, J., of the Federal High Court. Lagos restraining the learned trial Judge from delivering his judgment. In compliance with that order the learned trial Judge adjourned to 21/6/95 for judgment.
The parties were again in court on 26/5/95. On that day, the present counsel to the defendant made his first appearance. At his instance the matter was adjourned to 6/6/95. Meanwhile the defendant filed a motion dated 25/5/95 on 26/5/95 praying for the following reliefs:
a) An order striking out claims 1.2 to 1.5 of the plaintiffs’ Particulars of Claim on the ground that this Honourable Court has no jurisdiction to entertain them.
b) An order arresting the judgment of this Honourable Court herein fixed for 26th May, 1995 with a consequent order re-opening the case for further trial.
c) An order permitting the defendant’s counsel to cross-examine the plaintiff’s witnesses and to allow the defendant to call evidence in support of its case.
d) Leave to conduct a search of the records of this Honourable Court in this case and make copies of any relevant documents upon payment of the relevant fees for the purpose of assisting the defendant to prepare its defence.
e) An order allowing E.O. Leyimu’s Chambers to cease acting for the defendant herein and allowing Ayanlaja, Adesanya & Co to act as legal Practitioners for the defendant.
That motion was eventually heard on 6/6/95. The learned trial Judge delivered its ruling on 21/7/95. By the said ruling the learned trial Judge granted prayers (d) and (e) above, refused prayers (a) and (b) and allowed prayer (c) only to the extent that the defendant was permitted to call evidence in support of its case. In effect the learned trial Judge refused the application for leave to cross-examine the two witnesses that had earlier on given evidence for the plaintiff.
It is against the part of the ruling aforesaid refusing defendant’s counsel leave to cross-examine the witnesses for the plaintiff that the defendant has now appealed to this court.
The two grounds of Appeal filed in this case are as follows:-
(i) ERROR IN LAW
The learned trial Judge exercised his discretion wrongly by not granting the defendant leave to cross-examine the witnesses for the plaintiff:
PARTICULARS
a) The trial Judge did not give any or sufficient weight to the defendant’s constitutional right to fair hearing which includes the plaintiff’s (sic) right to put its case to the defendant’s (sic) witnesses and test their veracity by cross-examining them.
b) Having granted the defendant leave to lead evidence in support of its case, to ensure that the case is fully heard on its merits, the learned trial Judge should also have allowed the defendant to cross-examine the plaintiffs’ witnesses.
c) The learned trial Judge placed undue emphasis on the fact that the defendant and its counsel were absent when the plaintiff’s witnesses gave evidence, when such absence had adequately been explained off in the defendant’s affidavit.
d) The Lower Court had a duty to ensure that the end of justice was served by allowing the defendant’s witnesses to state their case, not only by giving evidence on their own behalf, but by putting their case to the plaintiff’s witnesses and cross-examining them on their testimonies.
ii) ERROR IN LAW
Having held that it was in the interest of Justice that the case be heard on its merits, and that the defendant was granted leave to lead evidence in support of its case, the learned trial Judge erred in law in not (in the same token), granting the defendant leave to cross-examine the plaintiff’s witnesses.
The defendant formulated a lone issue for determination in this appeal which reads:
“Taking into consideration all the circumstances of the case, did the learned trial Judge exercise his discretion properly in refusing the appellant leave to cross-examine the witnesses for the respondent who had earlier on given evidence in its absence’?”
The plaintiff for its part adopts the sole issue formulated by the defendant in this appeal.
Both counsel adopted their briefs of argument at the hearing of this appeal. The portion of the ruling of the court below relevant to this appeal is set out at page 56 lines 28-36 to page 57 lines 1-9. It reads as follows:
“The question which arises now is whether having regard to the circumstances of this case, it will be in the interest of justice to permit the defendant/applicant herein to recall the plaintiff’s witnesses for cross-examination after the defendant/applicant had failed to turn up in court on the hearing date. A judge must be bound by rules, accepted rules made under the law of the land in order not to leave the populace in fear of saucy dreams of a Judge – See Eso. J.S.C; in Willoughby v. I.M.B. Ltd (supra).
The first constraint in the exercise of the discretion in the instant case is that it is not in the interest of justice to permit the defendant/applicant to do so, after he had been given an opportunity to attend at the trial and to cross-examine the plaintiff’s witnesses which opportunity he failed to utilize on the excuse that he was never informed of the hearing date by his counsel, and as there is nothing to clear by this court in the evidence already given before this court this relief is hereby refused.”
It has been held in a long line of cases decided by the Supreme Court and this court that an appellate court would not generally question the exercise of discretion by the trial Judge merely because they would have exercised this discretion in a different way if they had been in the position of the trial Judge. However, such exercise of discretion would be questioned or interfered with in any of the following cases:-
a) Where the lower court acted upon a misconception of law.
b) Where the lower court acted under a misapprehension of fact in that it gave weight to irrelevant or unproved matters.
c) Where the lower court omitted to take into account matters that are relevant.
d) Where the lower court exercised or failed to exercise the discretion on wrong or inadequate material.
e) Where it is in the interest of justice to interfere.
See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Nsirim v. Onuna Construction Co. Ltd. (1994) 1 NWLR (Pt.318) 1 at 22; Ndukwe v. Baronci (1994) 9 NWLR (Pt.367) 241; Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1.
In the present case, it has been said that though in reviewing the case of both parties the learned trial Judge adverted his mind to the principles of fair hearing as entrenched in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria, he regrettably did not apply the principles. It was said that the rules formulated to ensure that justice is done to the parties as regards the conduct of trials include the examination-in-chief, cross-examination and re-examination of witnesses. It was pointed out that due to the absence of the defendant and its counsel in court, the defendant could not cross-examine the plaintiff’s witnesses. And if the ruling of the trial court is allowed to stand, it means that the whole of the plaintiff’s case would have been admitted in evidence without any challenge.
Another ground canvassed by learned counsel for the defendant is on account of the fact that the learned trial Judge took into consideration and placed undue emphasis on the absence of the defendant and its counsel in court to the detriment of the need to hear matters fully on their merits in the overall interest of justice. It was said that the learned trial Judge had before him uncontroverted evidence of E.O. Leyimu and defendant’s Managing Director Dotun Lofinmakin stating why neither of them was in court on the relevant days. It was argued that since Lofinmakin’s affidavit evidence was not rejected by the trial court. it should have acted on same before exercising its discretion. It was contended that had it done so it would have been clearly established that counsel. Mr. Leyimu did not inform his client that trial was to commence. It was submitted that it was not the fault of Mr. Lofinmakin that he was absent in court on the material days. It was therefore wrong for the trial Judge to hold o as he did that an opportunity was given to the defendant to cross-examine the plaintiffs witnesses and he failed to utilize same. It was submitted that it is trite law that courts are slow to visit the sins of counsel on litigants. Counsel relied on the case Nigeria Hotels v. Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 195. We were therefore urged not to visit Leyimu’s sin on the appellant.
For the plaintiff it was conceded that the trial Judge has the discretionary power to allow the defendant to recall for cross-examination witnesses called by the plaintiff after the plaintiff had closed its case. See Willoughby v. IMB (1987) 1 NWLR (Pt. 48) 105; Omoregbe v. Lawani (1980) 3-4 S.C. 108. It was however submitted that it is well settled that the power of court to recall a witness will be exercised with great care and only in exceptional circumstances. Counsel relied on Ogbodu v. Odogha & Anor (1967) NMLR 221; Tabaa v. Lababedi & Anor (1974) All NLR (Pt. 1) 400 at 408. In other words the discretion is not exercised lightly or as a matter of routine but rather on hard facts and in exceptional circumstances. It was submitted that a party applying to recall a witness must supply the trial court with sufficient facts relating to why he wants the witness recalled and the questions he intended to put to the witness. Reliance was placed on the case of Willoughby v. I.M.B. (supra). Counsel pointed out the grounds for the application of the defendant are contained in the two affidavits of E.O. Leyimu and Dotun Lofinmakin both of which say nothing on either why the defendant wants the witnesses to be recalled or the sort of questions the defendant intends to put to the witnesses. It was therefore submitted that the defendant’s application fell short of what the law requires of the defendant and therefore not sufficient to ground the application.
It was stressed for the plaintiff that the exercise of the power to recall witnesses is not at large. It is used to assist the court in arriving at the truth of matters under investigation. See Omoregbe v. Lawani (supra). It was submitted that in considering this appeal this court should pay little attention to the reason why the defendant was not in court on the day the witnesses sought to be recalled gave evidence as that is irrelevant to the subject on appeal. Rather, what is germane is the purpose which the recall of the witnesses would serve in resolving the dispute before the court. It was further submitted that the exercise of the court’s power in this case will not serve any useful purpose. If it were otherwise the defendant would have so stated in the supporting affidavit to its application.
On the issue of negligence of counsel it was the submission of counsel on behalf of the plaintiff that the alter ego of the defendant admitted on oath that he was advised by counsel when trial was about to commence to lay back: “….. so as to allow me to be able to carry out the crowded day to day administration (sic) duties of the defendant in Lagos.” The complaint of the defendant is that it did not receive a feedback on the court proceedings not that it was not aware that trial was going to begin. The plaintiff does not agree that the conduct of counsel smacks of negligence or any sin. If there was any negligence at all, it is that of the defendants and not its counsel. It was contended that since the evidence before the trial court did not suggest negligence on the part of counsel, there is no justification for the argument that sin of counsel should not be visited on litigant.
It is now well settled that the power of a Judge to recall a witness should be exercised with great care and only in exceptional circumstances. See Oghodu v. Odogha & Anor (supra) where the Supreme Court per Coker, J.S.C. made this point very clear. He said:
“Undoubtedly the discretion to recall a witness by a Judge is one which should be exercised with great care regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties …”
Therefore the discretion is not exercised lightly or as a matter of routine. A party who seeks to have a witness recalled has an enormous burden to discharge before the Judge will be in a position to exercise his discretion one way or the other. See Willollghby v. IMB. (supra) where the Supreme Court per Oputa, J.S.C. said:
“…… a party applying to recall a witness must supply the trial Judge with sufficient facts relating to why he wants the witness recalled and what he intends to put to the witness. It is an these facts that the trial Judge will decide on whether or not the justice of the case obliges him to exercise his discretion one way or the other.”
It should be clearly understood that the exercise of the power to recall a witness is not at large. It is used to assist the court in arriving at the truth of matters under investigation before it. In Omoreghe v. Lawani (supra) the Supreme Court per Coker, J.S.C. said:
“It is ….. a very important power to be used by a court in arriving at the truth of matters under investigation before it. And this important principle of evidence so far as concerns civil cases, has never been doubted.”
It is for this reason that I do not think that the reason why the defendant was not in court on the day the witnesses sought to be recalled gave evidence is very helpful to the matter on appeal. Rather, what is of importance is the purpose which the recall of the witnesses would serve in resolving the dispute before the court. The exercise of the court’s power in favour of the defendant will not serve any useful purpose for obvious reasons. Having had the benefit of examining the evidence laid before the lower court by the plaintiff, the defendant ought to have disclosed in its affidavit evidence the adverse consequences its inability to cross-examine the plaintiff’s witnesses would occasion to its case. The defendant’s two affidavits say nothing on why the defendant wants the witnesses of the plaintiff to be recalled or the sort of questions the defendant intends to put to the witnesses.
It must be stated clearly here that the plaintiff’s claim in the court below is rooted in a written contract the terms of which neither of the parties has the right to contradict by way of oral evidence. Having regard to the facts of this case, I think the defendant has a duty to bring to the fore the particular aspects of the evidence led which necessitated its application. This duty the defendant failed to discharge.
One last point, deposing to facts on the attendant adverse consequences as to the plaintiff would, in my view, have amounted to be labouring what was already known to the trial court. First, it was clear to the court that the case required urgent treatment since it was an admiralty matter. It was also known to the court that the vessel involved in this case had been under arrest since 23rd March 1994 just as the fact that the defendant had failed to fulfil the conditions for the release of the vessel from detention as ordered on 24th June 1994 on the application of the defendant. It was equally in evidence before the court that the plaintiff had been responsible for the upkeep of the vessel. Evidence of all these and more disadvantages had already been adduced by the plaintiff through the witnesses sought to be recalled.
I now came to the issue of fair hearing. So much has been said about this by the defendant in its brief of argument. It is my firm view that this issue did not arise in this case. The lack of cross-examination in the present case does not constitute denial of fair hearing for very obvious reasons. The defendant was provided opportunity through his counsel to cross-examine but he failed to avail himself of the opportunity given. The defendant cannot now complain. It is an elementary rule of practice that parties act through their counsel. In the case of Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 the Supreme Court said:
“…… fair hearing is not a technical doctrine. Rather it is a rule of substance. Whenever it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings.”
Earlier on, the Supreme Court held:
“I agree with the Court of Appeal that the fact that witnesses were not cross-examined per se will not constitute non-compliance with rules of natural justice. As long as the parties were heard and there was opportunity to cross-examine, the failure of a party to take advantage of the opportunity does not in my opinion constitute noncompliance with the rules of natural justice.”
It must be observed that the interest of justice does not mean just the interest of the applicant. It also includes the interest of the respondent and the court. See NPA v. Construzioni Gererali (1974) 12 SC 81.
As regards the negligence of counsel it is instructive to note that the alterego of the defendant, Mr. Dotun Lofinmakin in his affidavit in support of the defendant’s motion deposed as follows: ”
- That Mr. Leyimu further informed me that he would require my presence in court as representative of the defendant only when it is the turn of the defendant to give evidence so as to allow me to be able to carry out the crowded day to day administration (sic) duties of the defendant in Lagos.
- That Mr. Leyimu further informed me that it would not be necessary for me and indeed any other official of the defendant to be present in court unless he so requires or the court so orders.”
The picture created is very clear. The defendant was aware that the trial was about to begin or had begun, It kept away from court on the advice of its counsel. The defendant’s complaint should be that it did not receive a feedback on the court proceedings, not that it was not aware that the trial had begun. The absence from court of any of its officers in a case of this magnitude smacks of carelessness and indifference on the part of the defendant.
In the circumstances of this case I am unable to see any evidence before the trial court which suggests negligence on the part of counsel. The defendant was sued. It engaged a counsel. Its duty did not end there. It also had a duty to appoint one of its officers to represent it in court throughout the hearing. It did not discharge this duty on the excuse that it was advised by its counsel not to attend, In my view it cannot now begin to sulk and complain as if the trial court had no right to do its duty. Because that is what it did its duty. There must be a line drawn between the fault of a party’s counsel and the fault of the party himself. The case of Nigeria Hotels v. Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 195 relied upon by the defendant is not applicable to the facts of the present case. In that case the 1st respondent filed an ex parte application at the High Court, Jos for an order to attach the money accruing from the appellant (garnishee) to the 2nd respondent (judgment debtor) in order to satisfy a judgment debt and costs therein in a suit in which the 1st respondent had obtained judgment against the 2nd respondent in the tune of N63,751.10. In a supporting affidavit filed by the 1st respondent it was averred that the appellant was indebted to the judgment debtor in the sum of N200.000.00.
On 24th June, 1987, the trial court heard the 1st respondent alone and granted the order as prayed. The appellant was thereafter ordered to appear in court on 6/7/87 to show cause as to why an order should not be made upon it for the payment to the 1st respondent of the debt due and owing to him. On 6/7/87, the appellant, though represented by counsel, was absent. On 20/7/87, when the case further came up, both the appellant and its counsel were absent. The trial Judge thereupon, and on the application of the 1st respondent, granted leave to the latter to levy execution on the appellant’s property in satisfaction of the said judgment debt and costs.
On 10/8/87, the appellant brought an application to set aside the ruling of 24/6/87 granting the ex parte application for the order of the garnishee and the subsequent order of 20/7/87 granting leave to the 1st respondent to attach the appellant’s property. The application to set aside the ruling and order aforesaid was however dismissed. Dissatisfied, the appellant appealed to this court. It was in these circumstances that this court allowed the appeal.
In the light of the foregoing, this appeal fails and is dismissed. The ruling of Sanyaolu, J., is hereby affirmed. The plaintiff/respondent is entitled to costs of this appeal which I assess at N3.000.00 against the defendant/appellant.
Other Citations: (1997)LCN/0292(CA)
