HOW TO DETERMINE WHETHER A CLIENT’S CASE DISCLOSES A REASONABLE CAUSE OF ACTION.
By
Adebayo Adekola
LL.B, BL, ASM, ACIS
1. INTRODUCTION
When a dispute arises and the aggrieved person intends seeking remedy from the court of law, one of the first duties of a counsel is to determine whether the facts brought by such plaintiff against the defendant discloses a cause of action recognizable in law and enforceable against the defendant in favour of the plaintiff. A Counsel must carefully look at the fact presented to him by the client. Where some facts or all the facts the claimant would be relying upon are available to him, he must carefully scrutinize same to see the cause of action available to the client because it is not in all occasions do clients tell the whole truth about the suit in question brought before the counsel. This also applies to the counsel representing a defendant in a suit. He must consider the case of the claimant to see if it discloses any cause of action.
Once a cause of action recognizable in law exists from the fact presented to a counsel, there is no doubt that a right of action arises which may give raise to an enforceable remedy obtainable from a competent court of law. The facts presented may disclose just one wrongful act or series of wrongful acts leading to a cause of action, there is no need for a hundreds of wrongful acts giving rise to a cause of action. One wrongful act giving rise to a cause of action is as good as the hundreds of it. Every cause of action is litigated as one and not a split of one into many suits.
2. MEANING OF REASONABLE CAUSE OF ACTION
The words “cause of action” without the adjective “reasonable’ had been defined by the Supreme Court in SAVAGE AND OTHERS V. UWECHIA, (1972) 1 ALL N.L.R. (PART 1) 251 AT P.257; (1972) 3 S.C. 24 AT P.221, where Fatal-Williams, J.S.C. (as he then was) said:
“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts, which give rise to a right to sue and it consists of two elements - the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage’’
While Lord Esher in COOKE V. GILL, (1873) L.R. 8 C.P. 107 and later in READ V. BROWN (1888) 22 O.B.D. 128 (C.A.) said:
“It is every fact that it would be necessary for the plaintiff to prove, If traversed, in order to support his right to the judgment of the court”
And in adding the word “reasonable” it was ascertained in Black’s Law Dictionary, Special Delux, 5th Edition, as meaning,
“Fair, proper, just, moderate,”
And observed in DRUMMOND-JACKSON V. BRITISH MEDICAL ASSOCIATION AND OTHERS, (1970) 1 W.LR. 688 AT P.696 by Lord Pearson that
“First there is in paragraph (1) (a) of the rule the expression ‘reasonable cause of action’, to which Lindley M. R. called attention to Hubbuck AND Sons Ltd. v. Wilkinson, Heywood AND Clark Limited, (1899) 1 O. B. 86 pp. 90-91. No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleadings are considered. If when those al-legations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck-out.”
This definition was approved by the Supreme Court in CHIEF (DR.) IRENE THOMAS AND OTHERS V. THE MOST REVEREND TIMOTHY OMOTAYO OLUFOSOYE, (1986) 1 N.W.L.R. 669 AT P.682 (PER OBASEKI, J.S.C).
Cause of Action is a combination of facts and circumstances given rise to the right to file a claim in court for remedy. It includes all these things, which are necessary to give right of action and every material fact which is material to be proved to entitle the claimant or the defendant to succeed.
3. ELEMENTS THAT MAKE UP OR CONSTITUTES A CAUSE OF ACTION
The fact establishing a legal right and the fact giving rise to existence of an infringement must be considered. In OSIGWE V. PSPLS MANGT. CONSORTIUM LTD (2009) 1 SCM 63 the Supreme Court stated thus-
“A cause of action exists when facts establishing a civil right or obligation and facts establishing infraction or trespass on the right and obligation exists side by side. It is only writ of summons or the statement of claims that one has to look at to determine if there exist causes of action”.
It can also be determined by looking at the act(s) of the Defendant which give the Claimant his cause of complaint in determining the existence of a reasonable cause of action. SEE: CHEVRON NIG. LTD V. LONESTAR DRILLING NIG. LTD (2007) 12 SCM (PT.2) 254
In simpler words the Supreme Court in BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) 12 SCM (PT.2) 217 identified two factors that make up a cause of action as thus-
“Cause of action is made up of two factors, that is the wrongful act of the defendant and the consequential damages occasioned to the plaintiff’’
4. HOW DETERMINED BY COUNSEL
The duty of a counsel of determining whether the facts brought by his client against another person disclose a cause of action recognizable in law is an enormous one that must be discharged skillfully as a tap to releasing his professional obligation of displaying skills and knowledge in his dealings with his client. Otherwise, such counsel may be required to pay the cost for which the client has been put: COCOTTONPOULOUS V. P.Z.CO LTD. 1965 LLR NO. 170. In addition to this, SECTION 9 legal practitioners act provides:
“Subject to the provisions of this section, a person shall not be immune from liability for damage attributable to his negligence while acting in his capacity as a legal practitioner, and any provision purporting to exclude or limit that liability in any contract shall be void.
(2) Nothing in subsection (1) of this section shall be construed as preventing the exclusion or limitation of the liability aforesaid in any case where a legal practitioner gives his services without reward either by way of fees, disbursements or otherwise.
(3) Nothing in subsection (1) of this section shall affect the application to a legal practitioner of the rule of law exempting barristers from the liability aforesaid in so far as that rule applies to the conduct of proceedings in the face of any court, tribunal or other body’’
The Counsel must carefully look at all the fact presented to him by the client to see if there is any inconsistency. Where some facts or all the facts he would be relying upon are available to him, he must carefully scrutinize same to see the cause of action available to the client. As stated early, all facts presented may disclose just one wrongful act or series of wrongful acts leading to a cause of action, there is no need for a hundreds of wrongful acts giving rise to a cause of action. One wrongful act giving rise to a cause of action is as good as the hundreds of it. Every cause of action is litigated as one and not a split of one into many suits. The competence of a counsel may be called to question if he fails in this respect. In MIDLAND BANK V. STUBB & KEMP 1979 CH 384. The court had this to say
“A solicitor should not be judged by the standards of a particularly meticulous and conscientious practitioner. The standard is what a reasonable competent practitioner would do having regard to the standard normally adopted in his profession’’
5. HOW DETERMINED BY THE COURT
In 7UP BOTTLING CO. LTD. V.ABIOLA AND SONS BOTTLING CO. LTD [2001] 13 NWLR (PT. 730) PG 469 SC. 63/1996; ( MICHAEL EKUNDAYO OGUNDARE, EMMANUEL O. OGWUEGBU, SAMSON ODEMWINGIE UWAIFO, SYLVESTER UMARU ONU, UMARU ATU KALGO - ALL Justice, Supreme Court),
SYLVESTER UMARU ONU, JSC. (Delivering the lead judgment) relying on decisions in SHELL B. P. LTD. AND ORS. V. ONASANYA (1976) NSCC 334 AT 336. SEE ALSO ALADEGBEMI V. FASANMADE (1988) 3 NWLR (PART 81) 129 said
“The The law is sufficiently settled that in determining whether the Plaintiff’s (Respondent’s) action discloses any cause of action or the nature thereof, the court will necessarily restrict itself to the Plaintiff’s/Respondent’s Statement of Claim without recourse to the Defendant’s /Appellant’s Statement of Defence…
In necessarily restricting itself to the Statement of Claim, the court is not obliged to consider seriatim all the averments in the Statement of Claim. It is sufficient that the court looks at same as a whole and/or refer to few averments that form the gravamen of the claim. Thus, the court below in the present case rightly, in my view, referred to the relief sought by the Respondent (as contained in paragraph 19 of the Statement of Claim, which paragraph forms an integral part and in fact, formed the core of the Respondent’s claim at the trial court.) According to the court below "the Respondent’s claim as averred in paragraph 19 of the Respondent’s Statement of Claim which was reproduced earlier in this judgment, is a claim of conversion in tort." I cannot agree more’’
The honourable Justice went further and supported his agreement with the trial court by stating thus
’’The court below in determining the nature of the Respondent’s claim also considered paragraphs 5, 6, 7, 8 and 12 of the Statement of Claim, the general purport of which it condensed into the following words:
"This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in Suit No. KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent."
And he went further
"The Learned Justices of the court below in considering this matter limited and restricted themselves to the reliefs in the Statement of Claim and thus misunderstood the objection" is insupportable. We were also further urged to discountenance the Appellant’s submission that in determining the nature of the Respondent’s claim in the Suit KWS/215/88 (page 11 in Appellant’s Brief) the court should not have had recourse to the statement of claim alone. This, I will decline to do because to do so would be a clear affront to the principle that a cause of action is determined by reference to the plaintiff’s Statement of Claim. The Appellants’ contention that the statement of claim in Suit No. KWS/215/88 is clearly the same statement of claim as in Suit No. KWS/270/89 by reliance on the case of Shell B.P. Ltd. AND Ors. v. Onasanya (supra), is in my view, not correct.
The Appellants’ final submission that we should disregard the Respondent’s claim in relation to conversion which they contend is ancillary to the main claim of receivership is, in my view, untenable. This is more so in that as decided in the case of Shell B.P. Ltd. AND Ors. v. Onasanya (supra), it is necessary as the Respondent has done in the instant case, that his claim discloses a cause of action. This is the moreso that the claim in receivership as set out in the Appellants’ Brief is a figment of their imagination vis a vis what is borne out in the Respondent’s Statement of Claim. It is for this reason, that I entirely agree with the court below when it held,
There is nothing in the Respondent’s claim as presently constituted to show that the matter in dispute has to do with receivership; it is the appellants who by their statement of defence brought in the question of receivership."
6. CONCLUSION
It is obvious that it is not just the Counsel that has the responsibility of seeing to it that he pursues and defends only a reasonable cause of action for his client, the court also has a duty of ensuring that he hears and determines only suits that discloses a reasonable cause of action. Failure of both the plaintiff to pursue only a reasonable cause of action and the defendant defending a reasonable cause of action has its own consequences for them. So also are the consequences of rendering the decisions of any trial court reached without any reasonable cause of action by the plaintiff to be upturned on appeal: UNIVERSITY OF LAGOS AND ANOR. V. M. I. AIGORO, (1985) 1 N.W.L.R. 143 AT P.148; AND UNIVERSITY OF LAGOS V. OLANIYAN; (1985) 1 N.W.L.R. 156 at p.163.
In IBRAHIM V. OSIM SUIT NO. SC 208/1987.[1988] 1 NSCC 1184.UWAIS, J.S.C. said
“On the face of the statement of claim, as pleaded in paragraphs 9 and 10, quoted above, there was prima facie no illegality as contested by Mr. Mbanefo. I, therefore, see no reason or any special circumstance to warrant any interference by this Court with the exercise of the discretionary power of the High Court or the confirmation of the exercise of the discretion by the Court of Appeal”
It is true that if in an action of contract it clearly appears from the statement of claim that there is no contract between the plaintiff and the defendant or there is no contract which is valid in law or the contract is illegal the statement of claim will be struck out: SOUTH HETTON COAL CO. V. HASWELL, (1898) 1 CH.465; HUMPHREYS V. POLAK AND ANOR., (1901) 2 K. B. 385; SHAW V. SHAW, (1965) 1 W.L.R. 537; (1965) 1 ALL E.R. 638 C.A.
However, if the court finds that a reasonable cause of action has been disclosed by the pleadings. That is that there is a chance that the cause of action, as disclosed by the statement of claim, might succeed. It has been held IN CARL ZEISS STIFFUNG V. RAYNER AND KEELER LTD., (NO.3), (1970) CH. 510; (1969) 3 W.L.R. 991, AND GLEESON V. J. WIPPEL AND CO., (1977) 1 W.L.R. 510 AT P.518 that the power to strike out any pleading or any part of a pleading is not mandatory but permissive, and the power confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the pleadings.
INTERLOCUTORY INJUNCTION: PRINCIPLE GUIDING GRANT OF SAME.
By
Adebayo Adekola
LL.B, BL, ASM, ACIS
1. INTRODUCTION
Injunctions are court orders
commanding or preventing, made by the court for the maintenance of the status
quo between the parties pending a certain date or pending the final
determination of the suit. Application
seeking for the grant of an injunction can be made by any of the parties at any
time during the trial and before judgment.
Injunctions
cannot be sought or granted before the filing of the originating process in the
suit. Such application for injunction can only be filed together with the
originating process: ORDER 39
RULE 8 (LAGOS HIGH COURT CIVIL PROCEDURE RULES) AND ORDER 31 RULE 1 (3) (ABUJA
HIGH COURT CIVIL PROCEDURE RULES).
Every
application for an injunction is made by motion on notice
or motion
ex parte in case of urgencies. An interim
injunction is made by motion ex parte and usually
granted to last until a definite date or until further order or hearing of a
motion on notice for an order of interlocutory
injunction which last pending the final determination of
the suit. The purpose of interlocutory injunction is to maintain the positions
or conditions prevailing before the dispute that led to the institution of the
action: JOHN HOLT (NIG.) LTD. V. HOLTS AFRICAN WORKERS UNION OF NIGERIA
AND CAMEROONS ((1963) 2 SCNLR 383; ABDULLAHI V. GOVT., LAGOS STATE (1989) 1
NWLR (PT. 97) 356
In granting an
application for interlocutory injunction, the court is guided by some
principles or should it be said that there are some condition that must be met
by the party seeking such interlocutory injunction before the court can grant
such interlocutory application.
The conditions under which interlocutory injunction can be granted by our
courts in order to maintain the "status quo ante bellum" have been laid down in many judicial
decisions prominent among which is KOTOYE V. C. B. N. (2000) 16 WRN 71; (1989) 1 NWLR (PT. 98) 419,
which has been followed in all subsequent cases like NEW NIGERIA BANK PLC V. MRS. R. N. UDOBI (2001) 14 NWLR (PT. 732)
1 decided by the
Port Harcourt Division of the Court of Appeal (Coram Ogebe, Pats-Acholonu and Akpiroroh,
JJCA). In that case the
question for determination was Whether or not the trial court in granting the
order of interlocutory injunction exercised its discretion properly or acted on
wrong principles.
Unanimously
allowing the appeal, the court per Ogebe, JCA in the lead judgment at pages 9-10 restated
the principles guiding application for interlocutory injunction as follows:
"In
an application for interlocutory injunction, the court must consider:
(a) WHETHER
THE APPLICANT HAS A LEGAL RIGHT WHICH HE SEEKS TO PROTECT AND THAT HE HAS GOOD
CHANCES OF SUCCESS IN THE RELIEF HE IS SEEKING;
In granting an interlocutory injunction, it is
the requirement of the law right from the initial stage of proceedings that the
plaintiff who is the applicant, must show that he has an existing legal right
to protect. The application will not be granted if it is not shown that the
alleged act of the defendant constitutes an infringement of a legally
enforceable right of the plaintiff: DAY V. BROWNI IGG (1878)10 CH. D.2; AND
AKAPO V. HAKEANR HABEEB (1992) 6 NWLR (PT.247) 266. The fact that the act of a defendant
is causing injury to the plaintiff is not sufficient for the purpose of
determining whether an application for an interlocutory injunction should be
granted. The existence of legal right is a sine qua non. The aim of every
applicant from the onset is to protect his legal right in the res. Therefore,
the existing legal right must be donated by the claim as
contained in the writ of summons: COMMISSIONER
FOR WORKS, BENUE STATE V. DEVCON DEV. CONSULTANTS LTD. (1988) 3 NWLR (PT. 83)
407; ONIAH V. ONYIA (1989) 1 NWLR (PT. 99) 514; REGISTERED TRUSTEES OF LAGOS
STATE TAXI DRIVERS ASSOCIATION V. A-G., OF LAGOS STATE (1990) 3 NWLR (PT. 141)
711; OPARA V. IHEJIRIKA (1990) 6 NWLR (PT. 156) 291; OSUNDE V. CO-OP. BANK LTD
(1995) 7 NWLR (PT. 410) 682; AKIBU V. ODUNTAN (1991) 2 NWLR (PT. 171) 1.
No court of law
can waive this requirement. Failure of any court to follow this principle will
make whatever order granted in respect of such interlocutory injunction and
acted upon or any step taken by the successful applicant a nullity. Also If the
applicant has no legal right recognized by law, then the court has no power to
grant an injunction: BRAIDE V. ADOKI (1931) 10 NLR 15; AND
MOROHUNFOLA V. KWARA COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506.The
absence of a legal right leaves nothing to protect in the res. Likewise an act
that has already been carried out or where the res is destroyed or is no longer
in existence at the time the application is made even where the applicant has a
legal right leaves nothing to protect too. Both the legal right and the res
must be in existence and present. One cannot be used in absentia of the other
in granting an interlocutory injunction: ADEDIJI V. AKINTARO (1991) 8 NWLR (PT. 208) 209. The
court doesn’t act in vain. In addition to his satisfying the court that he has
a right which ought to be protected, he must satisfy the court of his chances
to succeed and that there is a serious question to be tried. Where the court is
not satisfied of the chances of the applicant succeeding in the suit before it,
any submission seeking the injunction to be granted to restrain an action with
the aim of protecting the res and a legal right will fall flat: OBEVA MEMORIAL HOSPITAL & ANOR. V. ATTORNEY-GENERAL OF THE
FEDERATION & ANON. (1987) 3 NWLR (PT.60) 325; AND ONYESOH V. NNEBEDUM
(1992) 3 NWLR (PT.229) 315.
(b) WILL
THE APPLICANT SUFFER MORE INCONVENIENCE IF THE APPLICATION IS NOT GRANTED?
An interlocutory injunction to restrain a defendant from doing acts
alleged to be a violation of the plaintiff’s legal right is to mitigate the
risk of injustice to the plaintiff during the period the uncertainty could be
resolved. However, since the middle of 19th century this has been made subject
to his undertaking to pay damages to the defendant for any loss sustained by
reason of the injunction if it should be held at the trial that the plaintiff
had not been entitled to restrain the defendant from doing what he was
threatening to do. The object of interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the uncertainty
were resolved in his favour at the trial; but the plaintiff’s need for such
protection must be weighed against the corresponding need of the defendant to
be protected against injury resulting from his having been prevented exercising
his own legal rights for which he could not be adequately compensated under the
plaintiff’s undertaking in damages if the uncertainty were resolved in the
defendant’s favour at the trial. The court must weigh one need against another
and determine where the "balance of evidence lies": LADUNNI V. KUKOYI
& ORS. (1972) I ALL NLR (PART 1) 133. Explaining the principle, Coker, JSC. (delivering the
judgement of the Court, said at page 138"
The court had earlier
at page 137 adopted with approval the dictum of Ungoed – THOMAS,
J. IN DONMAR PRODUCTION LTD. V. BART AND ORS. (1967) I WLR 740 AT 742 with respect to this point which reads:
(c) WHETHER DAMAGES WILL BE ADEQUATE
COMPENSATION FOR THE APPLICANT AT THE END OF THE LITIGATION;
Injunctions are never awarded where damages
would be adequate compensation. The main consideration in deciding whether
damages alone would be adequate compensation for an applicant or not is usually
dependent on what is claimed by the applicant in his substantive suit. If his
claim is for pecuniary compensation only, then no injunction, whether
interlocutory or perpetual would be granted to him. But if, as is usually the
case in most trespass cases he claimed not only damages for trespass, but also
for injunction to restrain defendant from further acts of trespass, injunction
(interlocutory or perpetual) will be granted to protect the plaintiffs’ possession.
E.g. in the case of QUEEN V. ADAROH (1999) 1 NWLR (PT.
586) 330, the Court of Appeal (Benin Division)
per Akintan, JCA at page 338, in the lead judgment held as follows:
On
the other hand in the case of OLORUNFEMI & OTHERS V. ASHO & OTHERS (1999) 1 NWLR
(PT.585) 1, which
was a case of trespass to land, the Supreme Court per Belgore, JSC at pages 9 & 10 held as follows:
(d) THE
APPLICANT MUST ESTABLISHE THAT THERE IS A SUBSTANTIAL ISSUE TO BE TRIED AT THE
HEARING.
What
remains to be considered once the court is satisfied of the issues above is to
determine whether there is a serious question of law to be tried between the
parties involved in the suit. The absence of any direct legal relationship
between the parties to the suit does render the non-existence of a serious
question to be tried in (the) proceedings so obvious. The standard for
establishing whether there is a serious question of law to be tried between the
parties involved in the suit is not for the party seeking the interlocutory
injunction to establish a prima facia case.
In the case of UNION BEVERAGES LTD. V. PEPSICOLA INT.
LTD.SC.81/1990.[1994] 3 NWLR (Pt. 330) 1.OGWUEGBU, J.S.C has this to say:
3. MUST ALL THE CONDITIONS NECESSARY FOR THE
GRANT OF INTERLOCUTORY INJUNCTION BE FULFILLESD BEFORE IT IS GRANTED?
The court must consider sufficiently
these requirements above in granting an interlocutory application. These are
conditions precedent to the exercise of discretion by the court in relation to
whether or not to grant an interlocutory injunction. In other words, a court
has discretion on the question whether or not to grant an interlocutory
injunction but the discretion has to be exercised in accordance with
established principle stated above. An appellate court may not confirm or
affirm a decision of a lower court if the lower court in reaching the decision
did not consider at all or consider adequately and determine fundamental
relevant questions before reaching a decision. If the fundamental relevant
questions not considered by the lower court are capable of being determined on
the basis of admitted facts or documentary evidence before the lower court and
do not depend on credibility of witnesses, the appellate court not only has
power but is under a duty to determine such relevant questions. If a lower court
fails to consider and evaluate the evidence adduced by both parties to a
dispute on certain relevant issues and make necessary findings, there is a duty
on the appellate court to consider and evaluate such evidence and to make
proper and necessary findings. So long as the issue of credibility of witnesses
is not involved: OGUNLEYE V. ONI (1990) 2 NWLR (PT.
135) 745; AND LMAH V. OKOGBE (1993) 9 NWLR (PT.316) 159.
4. CONCLUSION
With this in mind, a court is left
only with the consideration of such facts as have been made available to it to
determine whether an order of interlocutory injunction ought to be made in
favour of the applicant. I think apposite to refer to the well known dictum of Lord Diplock in AMERICAN CYANAMID V. ETHICON LTD.
(1975), ALL ER. 504 AT 511, 1975) A.C. 396 AT 408 – 409: It reads:
However, in my respectful view, though
every court may remain unfettered in the exercise of its discretionary power,
yet it seems to me that the court must consider judiciously and judicially the
facts presented in the application and also consider the peculiar nature of
each case before granting an order for interlocutory injunction.
ASCRIBING PROBATIVE VALUE TO THE TESTIMONY OF A WITNESS.
By
Adebayo Adekola.
LL.B, BL, ASM, ACIS.
When
a witness is called upon by a party to a case to give evidence in its
support before the law court in respect of any matter before it, the
court usually considers some factors in determining the value to be
attached to the evidence given or adduced by the witness before it.
This probative value to the testimony of a witness is very important as
it helps the court in making its final decision on the matter.
Therefore, the law is settled as stated in the case of AGBI & ANOR V. OGBEH & ORS (2006) 7 SCM AT 1, PAGE 24-25 that in ascribing probative value to the testimony of a witness, the court takes into consideration whether the testimony is
1. Cogent, consistent and in accord with reason and in relation to other evidence before it.
2. The demeanor,
3. Personality,
4.
Reactions to questions under examination are all factors to be taken
into consideration in determination of the credibility of witness.
The
determination of the credibility of a witness is within the province of
the trial judge, where the veracity of witness is in doubt, his
evidence should carry no weight. It is trite law that the appraisal of
evidence and the ascription of probative value of such evidence is the
primary function of the trial court. In FASHANU V. ADEKOYA (1974) 6 SC 83. SAGAY V. SAJERE (2000) 6 NWLR (PT.661) 360, the court went further as thus
“Where
the issue turns on the credibility of witnesses, an appellant court
which has not seen the witnesses must defer to the opinion of trial
court in such case the opinions of the trial court ought normally to be
preferred”.
In AGBI & ANOR V. OGBEH & ORS (supra) DAHIRU MUSDAPHER, JSC delivering the lead judgment went further that
“The
observation of the demeanor and the reaction of a witness to questions
which are essential factors in the determination of the credibility of
testimony and the evaluation of the weight of evidence cannot be
reproduced in the printed record. About these important factors, an
appellate court is only left to guesses and surmises. It is trite law,
that a trial court is the best judge of his domain as it relates to
believing and disbelieving a witness. An appeal court will not interfere
unless it is shown that inference drawn by the trial judge was not
supported by the evidence and facts before him or was perverse”.
WHEN A JUDGE WILL INVOKE SECTION 149(d) OF THE EVIDENCE ACT
By
Adebayo Adekola.
LL.B, BL, ASM, ACIS.
Parties to a case are expected
to produce before the law court evidences that will aid the court in giving
judgment in their favor. Where a party fails to produce the required evidence
before the court the presumption is that the evidence is unfavorable to the
defaulting party. This is the crux of the provision of Section 149 of the
Evidence Act.
In OGWURU V. COOPERATIVE BANK OF EASTERN NIGERIA LTD (1994) NWLR (PT.365)685 the court stated this provision in these words:
Speaking more on the
issue of invocation of Section 149(d) of the Evidence Act the Supreme Court per
DAHIRU MUSDAPHER in AGBI & ANOR V. OGBEH & ORS “(2006)7SCM PAGES 35-36 stated thus:
In invoking the said
section the court consider the all facts of the case above and failure of the
defaulting party to provide the evidence in court. The consideration is
reproduced below for clarity.
After this above
consideration, the court went further to stay the reason of proper
identification of an accused person were the issue of identity is concern. That
were the identity of an accused is concern the prosecution must do all possible
to convince the court that the right person is before it as an innocent man’s
right is more important than seeking to jail a million guilty men. These were the
Honorable Justice’s words
There is no doubt that
a court can convict or act on the credible testimony of only one witness
because trial does not depend on the number of witnesses called except where
the law requires more than one witness then the claim will fail without the
specified number of witnesses. Thus a
party to a case must try and produce all the evidence that will aid his case
rather than rely on one or scanty evidence which when not accepted in evidence
could destroy their case
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