FRED EGBE VS THE HON. JUSTICE J.A. ADEFARASIN
July 21, 2025VICTOR IYERE & ORS VS SIMEON DURU & ANOR
July 21, 2025Legalpedia Citation: (1986) Legalpedia (SC) 71163
In the Supreme Court of Nigeria
Fri Dec 12, 1986
Suit Number: SC 85/1985
CORAM
COKER JUSTICE, SUPREME COURT
KARIBI-WHYTE JUSTICE, SUPREME COURT
BELGORE JUSTICE, SUPREME COURT
PARTIES
J. ELABANJO
APPELLANTS
ALHAJA A. O. TIJANI
RESPONDENTS
AREA(S) OF LAW
LAW OF EVIDENCE—WEIGHTOF EVIDENCE—COMPETENT WITNESS—APPEAL
SUMMARY OF FACTS
The counsel to the Plaintiff testified in the course of the trial at the High Court. On appeal by the defendant, the Court of Appeal ruled that the Counsel was not a competent witness and upheld the appeal. Against the Court of Appeal’s ruling the Plaintiff has appealed.
HELD
This appeal ought to be allowed and it is hereby allowed. The appeal judgment and orders for cost made by the Court of Appeal are both set aside. The judgment of Oshodi, J. delivered on 11th May, 1982 in favour of the plaintiff is hereby restored and affirmed.
ISSUES
Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence? Whether Mr. Otukoya who filed the writ of summons, the pleadings, and summons for directions was in law a competent witness and whether his evidence ought not to have been expunged from the record by the learned trial judge? Whether the fact that Mr. Otukoya did give evidence for the plaintiff/appellant will have anything to do with the trial courts assessment of his credibility as a witness? Whether Mr. Otukoya ought to have known at least at the close of the pleadings that he was going to be a witness? Whether the learned trial judge was right or wrong in over-ruling Mr. Osinowos objection that Mr. Otukoya was incompetent to testify as a witness for the plaintiff? Whether Mr. Otukoya was wrong to have accepted a retainer in this case? Should the evidence of Mr. Otukoya be expunged from the record? Put in another way – Was Mr. Otukoya, who acted as counsel for the plaintiff before the actual hearing but did not represent the plaintiff at the hearing, a competent witness for the plaintiff?
RATIONES DECIDENDI
WHO IS A COMPETENT WITNESS?
“Anyone who has personal knowledge of the facts relevant to any issue in the case is by and large competent to give evidence unless otherwise excluded by law.” Per OPUTA JSC
WHETHER A COUNSEL IS A COMPETENT WITNESS
The position then is that counsel appearing should not ordinarily act as counsel and witness. But if it becomes necessary for such counsel to give evidence his evidence is not rendered inadmissible by the mere fact that he has acted or is acting as counsel in the case. There can therefore be no doubt that counsel is not, by the mere fact of being counsel for a party to a dispute, incompetent to give evidence in the same case. He is competent. Per OPUTA JSC
CASES CITED
Eastland v. Burchell and Wife (1874-1880) All E.R. Reprint 849
Olaleke Obadara & Ors. v. The President Ibadan West District Council Grade B Customary. Court (1965) N.M.L.R. 39
In Gachi & Ors. v. The State (1965) N.M.L.R.33 at p.336
R v. Secretary of States for India in Council & Ors Ex parte Ezekiel (1941) 2 All E.R. 546.
Adesanya Idowu v. M. A. Adekoya (1960) W.N.L.R. Part 4 p.210.
STATUTES REFERRED TO
The 1979 Constitution
The Federal Court of Appeal Rules
The Evidence Act Cap 62 of 1958
The Constitution of the Federal Republic of Nigeria 1963
