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IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 30TH DAY OF JANUARY 1970
SC 16/1968
BETWEEN
THE LIQUIDATOR OF EFUFU C.P.M.S. LTD (J.F. OGUNKOYA) ...................................... APPLICANT
AND
EMMANUEL ABEYEFA .......................................................... RESPONDENT
BEFORE: Coker, Lewis and Madarikan JJ.S.C.
Practice and Procedure-Evidence-Judge striking out applicant's motion before completion of evidence in Chief-Whether proper.
Appeal from the High Court (West).
HELD:
(1) Civil cases are proved by preponderance or weight of evidence and it is not the duty of a court unless in accordance with any rules of court to the effect to preclude a party claiming relief's from discharging that duty, a right to which he is ex debito justitiae entitled.
(2) In this case, it was manifest that the trial Judge interrupted at a stage according to the record when it was not clear that the applicant's first witness had even finished his evidence in chief, let alone had the opportunity to cross-examine him been given. Moreover, Counsel for the applicant was given no opportunity to call any other evidence or to address the court on the merits of his case before it was struck out. Equally the respondent to the motion was given no opportunity to call evidence nor was his Counsel allowed to address the court so that there could be no question of the Supreme Court finding for the applicant on the motion when no opportunity to address any legal argument on the motion had been given in the High Court, nor was there any determination thereafter made. Consequently, the appeal must be allowed.
Appeal allowed: order of High Court striking out motion set aside: motion ordered to be re-heard in High Court before different judge.
Cases referred to:
Elebute v. Odekilekun SC. 86/1967 of 19th December, 1969.
Atugbue v. Chime (1963) 1 All N.L.R. 208.
Tandch v. C.F.A.O. (1944) 10 W.A.C.A. 186.
Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43.
Law referred to:
Co-operative Societies Law, Cap. 26 (W.S.) section 51(5)(c).
APPEAL From the High Court (West).
Omisade for the Applicant/Appellant.
Lawal for the Respondent.
Lewis, J.S.C. (delivering the judgment of the court)-In Suit No. M/2/67 in the Oshogbo High Court the applicant filed a motion seeking an order to enforce an arbitration award made on the 26th of February, 1965 whereby in accordance with the provisions of section 51(5)(c) of the Co-operative Societies Law (Cap. 26) of the Western State which reads-
"(c) The decision shall, on the application of the party in whose favour it is given, be enforced by any court which would have jurisdiction in civil suits between the parties to the dispute to give a judgment for the payment of the amount awarded or, where the decision does not relate to the payment of money, to give a similar decision, in the same manner as if the decision had been a judgment or decision of such court.",
the arbitrator had ordered that-
"Mr Emmanuel Adeyefa should pay the Liquidator of Efufu C.P.M.S. Limited, Mr J. F. Ogunkoya, Co-operative Inspector Grade 1, Oshogbo the sum of £658.16s.11d (Six hundred and fifty-eight pounds, sixteen shillings and eleven pence) which Mr E. Adeyefa owed the society. The above amount shall be fully paid not later than 30th December, 1965 of which £200 be paid on 30-5-65 and £250 on 26-9-65 and if it is not paid, the amount may be realised through a civil court."
Affidavits were filed by the applicant in support of his motion and a counter affidavit was filed by the respondent in which inter alia he said-
"4. That I was not aware of the arbitration which made the award on the 26th day of February, 1965.
5. That a copy of the award was never read and handed over to me as alleged in exhibit A.
The motion came before Fakayode, J. on the 27th of January, 1967 where the record of proceedings read-"Parties present. Omisade for applicant. Lawal for respondent to oppose.
Omisade:-Says this motion is brought under section 51(5)(c) of the Co-operative Societies Law Cap. 26 Volume 1. There is an affidavit in support. It is to enforce an award by an arbitrator. The award for £658.16s.11d against Mr Emmanuel Adeyefa.
Lawal:-Opposes, says the award was improperly procured and therefore it is nullity. Says Mr Adeyefa was not present at the hearing.
Court:-Motion adjourned till 2-3-67 to enable Mr Awodumila to give evidence as to what parties were before him at the time of this award."
On the 2nd of March, 1967 the motion was again before Fakayode, J. and the brief record of the proceedings read-"Parties present. Omisade for applicant. Lawal for the respondent.
Court:-Case adjourned 13-3-67 for proof of liability against the defendant."
Finally, on the 13th of March, 1967 the record of the proceedings read-"Parties present. Omisade for plaintiff. Lawal for defendant.
PW1:-(m) Sworn on bible, states in English. I am Joshua Afolabi Ogunkoya. I live at No. 18A Otakiti Street, Oshogbo. I am an Assistant Co-operative Officer in the Ministry of Trade and Industry. I know the defendant. This agreement dated 15-8-65 was made by the defendant (Admitted as exhibit A without objection). In 1951 the defendant was a Secretary of
Efufu C.P.M.S. Limited He ceased to be such secretary in the same year. As secretary the defendant was to receive cocoa from members of the Efufu C.P.M.S. and to pay for such cocoa. His account at this time was checked by the Company's Co-operative Inspectors and he was found short of certain amount. Defendant admitted liability for the amount.
Court:-Case struck out as plaintiff cannot prove his case with 20 guineas costs to defendant."
Before us Mr Omisade argued his ground of appeal that read-
"The learned trial Judge is wrong in law to have struck out the case before the applicant completes adducing evidence in support of his case."
He submitted that the learned trial Judge was in error to stop the motion in the middle of the evidence of the 1st witness for the plaintiff, Mr Ogunkoya, and without giving either Counsel the opportunity to address him to strike out the plaintiff's motion-"as plaintiff cannot prove his case." Mr Lawal for the respondent for his part conceded that the motion should not have been struck out at this stage and submitted that this Court should now remit the motion for proper hearing before the High Court. Mr Omisade for the applicant however, asked this Court to find for him on the motion as he submitted there had not been any appeal from the decision of the arbitrator, though he eventually conceded that equally the respondent's Counsel had not been called upon before the learned trial Judge of his own volition chose to strike out the motion, but he nonetheless asked us to award him his costs in the High Court.
Now this Court has had occasion before to comment on the impropriety of a judge not permitting a plaintiff to complete his case before stopping him in Elebute v. Odekilekun SC. 86/67 of the 19th of December, 1969 where we said-
"It seems manifest therefore that it was the learned trial Judge himself who stopped the case at that stage. If that were so and we have no reasons for holding to the contrary, then the complaints of the plaintiff before us are fully justified. Civil cases are proved by preponderance or weight of evidence and it is not the duty of a court unless in accordance with any rules of court to the effect to preclude a party claiming relief's from discharging that duty, a right to which he is ex debito justiae entitled."
In Atugbue v. Chime (1963) 1 All N.L.R. 208 Brett F.J. said at page 210-
"Counsel have not been heard on the merits of the case either in the High Court or in this Court, and as in my view the case will have to be retried. I express no opinion on the correctness of the judge's ruling on the evidence before him. It will be enough to say that the procedure adopted was not authorised by law, and that Mr Okoye, who had at no time acquiesced in it, was fully entitled to decline to address the court before his entire case had been closed. The proper course would have been to allow the plaintiff to call the whole of his evidence before deciding any of the issues of fact... The party beginning should be allowed to conclude his evidence. Once he has done so, it is open to the other party to submit that there is no case for him to answer, in which case the judge should decline to give ruling at that stage unless the party states that he does not intend, in any event, to call evidence; Tandoh v. C.F.A.O. (1944) 10 W.A.C.A. 186. In an exceptional case 'it cannot be open to doubt that where a plaintiff himself has shown that he has not case a judge trying a case as judge and jury is entitled to stop the case after the plaintiff has closed his case and addressed the court: Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43."
It is manifest here that the learned trial Judge interrupted at a stage according to the record when it is not clear that the applicant's first witness had even finished his evidence in chief, let alone had the opportunity to cross-examine him been given. Moreover Counsel for the applicant was given no opportunity to call any other evidence or to address the court on the merits of his case before it was struck out. Equally the respondent to the motion was given no opportunity to call evidence nor was his Counsel allowed to address the court so that there can be no question of this Court finding for the applicant on the motion, as his Counsel asked us to do, when no opportunity to address any legal argument on the motion had been given in the High Court nor was there any determination thereafter made. We must accordingly allow this appeal and we do set aside the order of Fakayode, J. striking out the motion with 20 guineas costs and we do order that the motion be re-heard in the High Court of the Western State at Oshogbo before a different judge. Costs of the original motion should abide the outcome of the re-hearing. The applicant/appellant is entitled to his costs of the appeal in this Court which we assess at 49 guineas.
Appeal allowed: order of High Court striking out motion set aside: motion ordered to be re-heard in High Court before different judge.