REVEREND (PROF) IYAWE & ORS V MR. A. SUNNY MENE

CORAM

PARTIES

REVEREND (PROF) IYAWE & ORS

MR. A. SUNNY MENE

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Respondent entered into an agreement with one Michael I. Osagie, for the purchase of the latter’s property situate and located at No. 18, Iheya Street, Benin City for the sum of N5, 500, 000.00. The Respondent made a part payment in the sum of N100, 000.00 and took the said property on lease for three years for the sum of N270, 000.00 and thereafter he was to pay Michael I. Osagie, the sum of N5, 400,000.00, on the effluxion of the three-years lease period. The said agreement was reduced into writing and it was subsequently registered with the Lands Registry at Benin City. The Respondent took possession of the property and made some renovations. However, on 27th January 2007, Micheal I. Osagie died testate. The Respondent through letters informed the Defendants/Appellants who were the executors of the will of Micheal I. Osagie of the agreement with respect to the testator’s property and sought for payment of the balance of N5, 400,000 for the property, but the Appellant did not respond. The Respondent instituted an action praying the court inter alia for an order of court directing him to pay into the court the balance of purchase price of a property and a vesting order of court vesting legal title of the property on him. The suit proceeded to trial. The suit was to proceed to hearing of addresses by counsel, when the Respondent filed an application praying for an order of the court to recall the Respondent and the Principal Deeds Registrar, Lands Registry, Benin City for the purpose of tendering documents through them. The Appellants opposed the application by filing a counter-affidavit. The trial court ruled granting some prayers in favour of the Respondent. Dissatisfied with the ruling, the Appellants filed an appeal to this court having sought and obtained the leave of the lower court.

HELD

Appeal Allowed

ISSUES

Whether having closed his case in the proceedings, the Respondent can call further witness(es) and tender document(s) without an order of the court allowing him to re-open his case. Whether the court below could invoke Order 39 Rule 15 of the Bendel State High Court (Civil Procedure) rules 1988 then applicable to Edo State to grant the motion of the Respondent. Whether the grant of the Respondent’s motion does not negate the provisions of Sections 214 and 215 of the Evidence Act, 2011.

RATIONES DECIDENDI

INTEREST OF JUSTICE – DUTY OF THE COURT AS REGARDS UPHOLDING THE INTEREST OF JUSTICE IN A MATTER

“On appeal to this court, against the ruling of the learned trial judge, it was held per Ademola, JCA., that:
The interest of justice must always in my view be predicated upon certain ascertainable reasons or principles which must be clear in every instance and situation.
Furthermore, his Lordship said that since the parties had joined issues with respect to the piece of evidence which the defence witness gave on the fateful day, his evidence would not have been a surprise to the counsel to the appellant and she should have been prepared to meet it. He concluded:
She failed to meet it and it will be an indulgence not rooted in any legal principle to allow her to cross-examine the witness or lead to additional evidence after the close of the case for the appellant in the court below.
The appeal was therefore allowed. In a further appeal to the Supreme Court, it was held per Eso, JSC (now of blessed memory) that:
“……the phrase interest of justice is not a carte blanche or licence for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice, as a concept is not easy to define despite postulates by great jurists from time immemorial even to Roscoe Pound who dealt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land. A judge must be bound by rules – accepted rules made under the law of the land – in order not to leave the populace in the fear of saucy dreams of a judge, who would believe, like Humpty Dumpty that “when I say this, it must be so.” And why? “Because I say so and consider that to be in the interest of justice.”
In the end the appeal was dismissed by the apex court, which affirmed the decision of this court, to the effect that the learned trial judge was in error when he granted the application of the appellant therein, to recall a defence witness, for cross-examination, after the close of the defendant’s case.”

COURT – WHETHER A TRIAL COURT POSSESS THE DISCRETIONARY POWER TO ORDER THE ATTENDANCE OF ANY PERSON FOR THE PRODUCTION OF ANY WRITINGS OR DOCUMENTS

“Undoubtedly, the learned trial judge had the discretionary power to order the attendance of any person to “produce any writings or document at any stage of the proceedings”. However, that is not all. The writings or other documents are the ones which he thinks are fit to be produced. There is nothing in Order 39 rule 15 of the High Court (Civil Procedure) rules, 1988 which says that the activation/invocation of the said order should be at the instance of any of the parties such as the respondent herein, did. It seems to me that, indeed the learned trial judge suo motu, without the prodding of either party to an action, can invoke Order 39 rule 15 aforementioned, for the production of any writings or other documents which would aid him in coming to a just and fair decision.”

DISCRETION OF COURT – DEFINITION OF THE CONCEPT OF DISCRETION OF THE COURT

“Let me say a word with respect to the nebulous concept of the discretion of the court which has been defined to mean:
“……..the power or right conferred upon the courts by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others ……..”. Suleiman V. Cop (2008) 3 SCNJ 1 at 9 – 10.”

EXERCISE OF DISCRETION – WHETHER AN APPELLATE COURT CAN ORDINARILY INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

“That is why, the appellate court, will not ordinarily interfere with the exercise of discretion by a trial court. That is,
“Ordinarily, an appellate court will not interfere with the exercise of discretion by a lower/trial court simply because faced with a similar application, it would have exercised the discretion differently. …….a discretion is said to be exercised judicially and judiciously where it is so exercised on sound principle of law based on sufficient material and also given sufficient prevailing circumstances of a given case. Surely, discretion must be exercised strictly on the facts and circumstances of the particular case and certainly not based on whims and caprices of the court.” – per Sanusi, JCA in Odigwe V. JSC, Delta State (2011) 10 NWLR (pt. 1255) 280.”

MISTAKE OF COUNSEL – WHETHER A LITIGANT CAN BE PUNISHED FOR THE SIN OR MISTAKE OF COUNSEL

“I believe that it is high time learned counsel realised that there is a world of difference between ineptitude, or incompetence of counsel, and mistake or inadvertence of counsel. See the judgment of this Court in The Hon. Minister Of The Federal Capital Territory v. Abdullahi (2010) ALL FWLR (Pt.507) 179 at 195 – 196 whereat I stated thus:-
“The law is definitely settled that no litigant should be punished for sin or mistake of counsel. It is however also the law that “sin of counsel” or “mistake of counsel” is not a magic wand and it ought to be appreciated that court do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel. In this regard, I cannot but refer to the case of Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643 which shows that the Supreme Court has been careful in the application of the principle that courts do not normally punish a litigant for the mistake or inadvertence of counsel.”
In this regard Nnaemaka-Agu, JSC said at page 669 thus:-
“I think it should be regarded as settled by a long line of decided cases that the courts do not normally punish a litigant for the mistake of his counsel…but in my opinion, the courts will not regard this as a panacea in all cases. The courts must be satisfied not only that the allegation of fault of counsel is true and genuine but also that it is availing, having regard to the circumstances of the particular case”.
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CASES CITED

Not Available

STATUTES REFERRED TO

Bendel State High Court (Civil Procedure) Rules 1988|Evidence Act, 2011|

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