3PLR – ELABANJO V. ALHAJA A. O TIJANI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ELABANJO

V.

ALHAJA A. O TIJANI

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 12TH DAY OF DECEMBER, 1986

SC.85/1985

OTHER CITATIONS

(1986) NWLR (Pt. 46) 952

LN-e-LR/1985/48 (SC)

BEFORE THEIR LORDSHIPS:

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C. (Presided)

DAHUNSI OLUGBEMI COKER. J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C. (Read the Lead Judgment)

SALIHU MODDIBO ALFA BELGORE, J.S.C.

 

REPRESENTATION

Mr. G. O. K. Ajayi, S. A. N., with him Miss Ayo Ogunsola – for the Appellant

Mr. H. A. Lardner, S. A. N., with him Mrs. O. S. Akpan and G. A. Osinowo – for the Respondent

 

MAIN ISSUES

LAND LAW:- Trespass to land – How proved – Where dispute is between original vendor and acknowledged buyer as to identity of land conveyed – Relevant considerations

CHILDREN AND WOMEN LAW: Women and Justice administration – Illiterate women using Illiterate Protection rules to subvert justice – Attitude of court thereto – Women in Business – Dealings in land – Need to respect agreement as to conveyances

JURISPRUDENCE AND PUBLIC LAW:-  Role of witnesses in realizing the objective of any trial – Whether judges and counsels formally involved in a case can are competent witnesses – When justifiable – Section 154(1) of the Evidence Act Cap 62 of 1958

JURISPRUDENCE AND PUBLIC LAW:- Illiterate Protection legislations – Objective of obligating the courts of this country to protect illiterate against avarice, caprice and sharp-practice – 1915 Illiterates Protection Act Cap 83 Vol. III Laws of the Federation of Nigeria, 1958 – Need for the courts to ensure that no illiterate takes umbrage under his illiteracy and work injustice against others

ETHICS – LEGAL PRACTITIONER:- Rule of practice that Counsel appearing in a case should not ordinarily act as counsel and witness – Need not to confuse rules of etiquette and practice at the Bar with rules of law like the legal competence of counsel at all material times to give evidence – Whether counsel can be punished for breaking rules of practice at the Bar by giving evidence but still remain competent witness for the purpose of the outcome of the case.

ETHICS – LEGAL PRACTITIONER:- Material/relevant fact within the peculiar the knowledge of counsel – Where counsel elects to give evidence himself and immediately applied by motion to be dismissed as counsel in the matter – Whether perfectly legal, perfectly ethical and professionally permissible.

ETHICS – LEGAL PRACTITIONER:- Withdrawal/retirement of counsel from a case to give relevant evidence – Where such withdrawal will jeopardize the interest of the client – Important qualification to the practice demanding the retirement of counsel who had appeared as witness in the case he is conducting – Effect

PRACTICE AND PROCEDURE – APPEAL:- Findings of fact – Attitude of appellate court to invitation to interfere therewith – Whether it is not the business of an appellate court to substitute its own views of the facts for those of the trial judge who saw, heard and believed.

PRACTICE AND PROCEDURE – ACTION:- Counsel to a party – Whether competent to act as witness in a matter he is retained as counsel – Whether can act as witness in same case and continue as counsel

PRACTICE AND PROCEDURE – ACTION:- Witness – Judge and Counsel to an action – Whether competent witnesses in the same proceedings

PRACTICE AND PROCEDURE – EVIDENCE:- Evidence of counsel acting as both counsel and witness – Whether competent witness – Admissibility of such evidence – Whether wrong to expunge his evidence from the record on ground that counsel may have broken any rule of professional conduct

PRACTICE AND PROCEDURE – PLEADINGS:- Issues joined at close of proceedings – Need for parties to only call witnesses in proof or disproof of those issues –

INTERPRETATION OF STATUTE:- Section 154(1) of the Evidence Act Cap 62 of 1958  –

INTERPRETATION OF STATUTE:-  Section 171 and 186 (1) of the Evidence Act – Counsel as competent witness

INTERPRETATION OF STATUTE:- Order 4 of the High Court of Lagos State (Civil Procedure) Rules – Objective – Whether exists to protect the interest of the lay-client as against desertion by his client – Whether lies in mouth of opposing counsel to complain of such desertion

 

 

 

 

 

MAIN JUDGEMENT

OPUTA, J.S.C. (Delivering the Lead Judgment):

This is an appeal against the judgment of the Court of Appeal Lagos Division. In a lead judgment delivered by Uthman Mohammed – J.C.A. to which Nnaemeka-Agu and Kutigi, JJ.C.A. Concurred, the Court of Appeal set aside the judgment of Oshodi J. of the Lagos High Court awarding the plaintiff (now appellant) N100.00 damages for trespass and an injunction “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.”

 

In the court of first instance, the plaintiff gave evidence and tendered the purchase receipt of the land in dispute as Exhibit B and the conveyance to him of the land in dispute duly executed by the defendant/respondent to this appeal. The plan of the land in dispute was attached to Exhibit A. The plaintiff also tendered Exhibit C written for and on behalf of the defendant by her solicitors, Coker & Coker. Exhibit C was a public notice posted by the defendant on the land in dispute. Exhibit C contained the following relevant and material particulars:

“2.     Our client has complained of recent acts of trespass on parts or portions of her lands and she hereby states for the information of all and sundry that apart from only 10 (ten) acres of such lands sold by her to one D. T. Elabanjo (conveyance dated 5th day of November, 1969 and registered as No. 19 at p.19 in Volume 1305 of the Register of Deeds kept in Lagos) she has not sold any portion of her land to anyone else.”

 

It is pertinent here to note that the particulars of the deed of conveyance pleaded by the plaintiff in paragraph 1 of his statement of claim and tendered in evidence as Exhibit A agree in all respects with the defendant’s description in paragraph 2 of Exhibit C of the land she sold to the plaintiff. Exhibit C is an admission by the defendant/respondent that she sold the land in dispute to the appellant.

 

In a short but well written and very carefully considered judgment, the learned trial judge, Oshodi, J. reviewed the pleadings, the evidence led on either side and exercised the prerogative of a judge who saw the witnesses, heard their evidence and watched their demeanour – the prerogative to believe one side and disbelieve the other. He held:

“There is evidence before me that the contents of Exhibit B (the purchase receipt) were read over and interpreted to the defendant by Popoola in the presence of the plaintiff’s solicitor even though Mr. Popoola signed as a witness and not as an interpreter. I believe and accept the evidence of Mr. Otukoya and Mr. Popoola on this point. With regard to Exhibit A itself I am satisfied that the defendant’s evidence as to its execution is false. It is an afterthought. I do not believe the defendant that the document was executed in the house of Mr. Shomefun her former husband. The execution was before a magistrate in the court. The 10 acres were validly sold to the plaintiff. The plaintiff went into possession and 10 years later the defendant disturbed his possession by going on the land and-damaging the pillars and palm trees on it.” (The italics are mine)

 

Needless to say that on the above findings, the learned trial Judge was fully justified in awarding the plaintiff damages for trespass and in “restraining the defendant, her servants/agents from further acts’ of trespass on the land in dispute.” –

The defendant appealed against the above decision of the High Court to the Court of Appeal. In a 19-paged judgment, 18 of which were devoted to a discussion of “the role played by a lawyer, Mr. Kunle Otukoya,” Uthman Mohammed, J.C.A. allowed the appeal of the defendant, set aside the judgment of Oshodi, J. and “dismissed the claim of the respondent before the High Court.” The plaintiff who was respondent in the Court of Appeal, as I observed earlier on, has now appealed to the Supreme Court on 7 grounds. I will now deal with Ground 7 which is the omnibus ground:

“That the decision is against the weight of evidence.”

I must add at this point that the appellant applied to the court below for leave to argue grounds involving facts or mixed law and fact as provided by section 213(3) of the 1979 Constitution and under Order 3 rule 3(2) of the Federal Court of Appeal Rules. His application for leave was on the 29th day of April 1985 refused by the court below. (See p.155 of the record of proceedings). However on the 29th day of May 1985 this court granted the appellant “leave to appeal against the decision of the Court of Appeal dated 25th February, 1985 both on questions of fact and of mixed law, and fact” – (see p.156 of the record of proceedings). If the facts of this case, as set out in the evidence of the witnesses, were dispassionately considered without beclouding them with the issue of the desirability or undesirability of counsel giving evidence in a `case in which he was briefed as, counsel, it would have been quite clear that on the findings of fact of the trial court, there was not much an appellate court could do. Now, ordinarily it is not the function of the Court of Appeal to disturb the findings of fact of the trial court especially where those findings are based, as in this case, on the credibility of witnesses who testified before the trial court; unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion. It is in this regard that an appellate court will take the view that not having heard or seen the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. It has to be re-emphasised that it is not the business of an appellate court to substitute its own views of the facts for those of the trial judge who saw, heard and believed. There is no need citing authorities for the above propositions for their name is legion for they are many. Ground 7 of the grounds of appeal thus succeeds.

 

The remaining 6 grounds of appeal dealt with one aspect or another of the issue that fully occupied the attention of the Court of Appeal namely:

1. Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence.
2. 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.
3. Whether the fact that Mr. Otukoya did give evidence for the plaintiff/appellant will be a witness.
4. Whether Mr. Otukoya ought to have known at least at the close of the pleadings that he was going to be a witness.
5. Whether the learned trial judge was right or wrong in over-ruling Mr. Osinowo’s objection that Mr. Otukoya was incompetent to testify as a witness for the plaintiff.
6. Whether Mr. Otukoya was wrong to have accepted a retainer in this case.

 

The above six grounds were argued together as they all dealt with the consequences, legal or professional or both, of learned counsel briefed by a party turning a witness and going into the box to give evidence for his client. It is clear that in this case the Court of Appeal reversed the decision of the trial court and therefore and thereby set aside the findings of the trial court. The question now is – Was the court below justified in so doing? What reasons did it give for so doing? Are those reasons valid? In his lead judgment Uthman Mohammed, J.C.A. noted at p.141 of the record of proceedings:

“Two vital issues are the centre piece of the argument of learned counsel for the appellant … The first issue is the question about the role played by a lawyer, Mr. Kunle Otukoya who initiated the proceedings, in respect of the claim of the respondent (the plaintiff) before the trial court.”

 

Later on in his lead judgment (pp. 140/147) the learned justice of the Court of Appeal observed:

“I do not entertain any doubt to hold therefore that the evidence of Mr. Otukoya is very vital to the plaintiff’s case. This fact he must have known even before the writ was taken out by the plaintiff. Mr. Otukoya is therefore wrong to accept a retainer in a case in which he had reason to believe that he would be a witness.”

 

The lead judgment concluded on the following note:

“In the circumstances even if the evidence of Mr. Otukoya had been expunged from the record the respondent could not have proved his claim on the evidence adduced before the court”.

 

The central issue in this appeal is 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? I say competent because if a witness is competent his evidence is admissible. Its weight may be an entirely different matter. In his judgment, Uthman Mohammed, J.C.A. at p.144 held:

“The learned trial judge was in error to over-rule the objection raised by Mr. Osinowo’s learned counsel for the defendant in the court below, against the testimony of Mr. Otukoya.”

 

What was Mr. Osinowo’s objection? It was that Mr. Otukoya is not competent to give evidence in this case as he had been counsel and advocate for the plaintiff.

 

On general principles, one can safely say that the object of any trial is to ascertain the truth of either a criminal charge or of a civil claim. The trial is thus the process by which the court endeavors to find out the truth of falsehood of the case. This is done by witnesses giving evidence. 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. On the supposition that the intended evidence is true, can the opposite party suffer merely because such evidence is given by someone who at a stage acted as counsel for the party calling him? It is said, and it is still true, that “the truth can produce no harm”; The truth may overthrow and overturn the opponent’s case, (as it did in the case now on appeal) but from the point of view of the administration of justice, it is no more than right that this should result. The learned trial judge believed that Mr. Otukoya was speaking the truth and that Alhaja Tijani was lying to the court. She herself confessed that she lied to the magistrate when she told the magistrate that Exhibit A and Exhibit B were read and interpreted to her before she signed them. How does one deal with the testimony of a self-confessed liar but to tell the truth, and expose her lies? That was exactly what Mr. Otukoya found himself compelled to do.

 

The question whether or not learned counsel should (not could, for counsel definitely can give evidence) give evidence in a case in which he has acted or is still acting as counsel has had a long and romantic history in English and American jurisprudence. Wigmore in his treatise on Evidence 3rd Edition Volume VI from pages 586 to 606 considered at some length whether judges, jurors, and learned counsel should give evidence in cases with which they are involved as such judges, jurors or counsel. At page 586 the learned author stated:

“That a judge may give testimony as a witness in a trial before a court of which he is a member seems in the classical English practice not to have been doubted, although the precedents are scanty. It is not clear whether a judge so testifying was regarded as bound to retire from the Bench thereafter during the trial, but the propriety and legality of his taking the stand when needed seems to have been assured… The controversy that arose over this problem concerned a different principle, namely, the judge’s duty, and his power to use his private knowledge in his judicial capacity, but it seems not to have been doubted by anyone of those who expressed their views that the judge might lawfully have given testimony, the only doubt was whether it was his moral duty to do so.” (The italics are mine).

 

Apart from Wigmore, we have other authorities affirming the proposition that a judge is a competent witness. In Halsbury’s Laws of England 4th ed. Vol. 17 paragraph 233, the law as it relates to judges giving evidence is stated thus:

“A judicial officer who is sitting alone on a trial of a case cannot, because of his position, be a witness during that trial. A judge or magistrate who is sitting with others may leave the bench and give evidence, but he should not return to the bench or take any further part in the trial in a judicial capacity.”

 

If a judge can lawfully testify in a case, and before a court, of which he was a member, then a fortiori counsel can also lawfully give evidence in a case that he at one stage before the actual hearing handled as counsel to one of the contesting parties. The objections to a judge being a witness are not for reasons of incompetency as a witness rather the objections are based upon the impolicy of combining at the same time the capacities of judge and witness; of being a witness without ceasing to be a judge of the cause; and of continuing to be a judge in the cause even after finishing his testimony as witness.

 

Dealing with the competence of counsel to testify on behalf of his client, Wigmore continued at page 595 article 1911 as follows:

`The competence of a counsel or attorney to testify on behalf of his client, as a problem in the law of evidence, has occupied a singular place in our law. Occurring in practice with much more frequency than that of a judge’s or juror’s competency, it has presented constant opportunity for objection and discussion; the reasons of the most diverse sort, urged against it, are much more cogent than those urged against the testimony of judge or juror; the force of these reasons have been generally conceded. And yet in almost every court the final step has failed to be taken, and the judges have halted half way between a prohibition and a licence, while the legislators, who have eagerly busied themselves with a re-enactment of the common law truism that a juror may be a witness, have ignored the troublesome problem of counsel’s testimony.”

 

Can one say the same thing of our own legislators? To answer this question one has to have a closer look at some sections of our law of evidence. Section 154(1) of the Evidence Act Cap 62 of 1958 sub nomen who may testify stipulates:

“S.154(1) All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answer to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

 

The trial court, the court of first instance accepted Mr. Otukoya’s evidence. This implied that the trial judge was fully satisfied that Mr. Otukoya was under section 154(1) of the Evidence Act a competent witness. The Court of Appeal could not (and I hope did not) reject Mr. Otukoya’s evidence on that score. The learned trial judge was right in over-ruling the objection of Mr. Osinowo that “Mr. Otukoya is not competent to give evidence in this case.” As Mr. Otukoya did not suffer from any of the disabilities mentioned in s. 154(1) and (2) of the Evidence Act he was legally a competent witness. The Court of Appeal was, with the greatest respect, in serious error when it regarded Mr. Otukoya as incompetent to testify in this case. In fact Wigmore ended his discourse on Counsel as Witness thus:

“There is, then, in general no rule but only an urgent judicial reprobation forbidding counsel or attorney to testify in favour of his client.”

 

Halsbury was even more affirmative. In Vol. 17 of Halsbury’s Laws of England 4th edition paragraph 233 the learned authors emphatically stated that the evidence of counsel who gives evidence is not inadmissible. Thus in Eastland v. Burchell and Wife (1874-1880) All E.R. Reprint 849 a solicitor tendered himself as a witness to give evidence as to the husband’s means but the trial judge refused to hear that evidence. On appeal it was held at p.853:

“We are therefore of the opinion that any inquiry into the husband’s means was irrelevant …if evidence on that point had been relevant we see no reason why the evidence offered should be rejected.”

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.

 

Other considerations may arise where counsel testified as witness but surely not that of competency. At page 144 of the Record of Proceedings, Uthman Mohammed, J.C.A. observed:-

“I have carefully gone through the facts and the law referred to in the cases cited above and I entirely agree that it is wrong and contrary to practice and etiquette at the bar for counsel to appear in a professional capacity in a case in which he is a material witness.”

 

With the greatest respect, there seems to be a confusion of thought in the passage reproduced above. Whether counsel can give evidence – his competence to testify is one thing. Whether by the etiquette and practice at the Bar he should give evidence is an entirely different matter. One deals with the legal capacity to testify, the other with the propriety of his so testifying. It is necessary always to keep this distinction in view. If counsel is a competent witness it will be wrong to expunge his evidence from the record as the court below suggested. If in so testifying counsel broke any rule of professional conduct then that will be a matter for the Disciplinary Committee of the Bar and that principle should have nothing to do with the outcome of the case.

 

Let me now consider the cases cited and relied upon by the Court of Appeal in order to see whether any of them decided that counsel cannot give evidence in a case he was briefed by one of the parties. In Olaleke Obadara & Ors. v. The President Ibadan West District Council Grade B Customary. Court (1965) N.M.L.R. 39 the dispute was not whether counsel can give evidence in a case in which he is, appearing. The main issue, in that case, was the interpretation of s.117 of the Constitution of the Federal Republic of Nigeria 1963. It was however observed per curiam that “it is undesirable for counsel to appear in a professional capacity in a case in which he is a material witness.” In the case now on appeal when Mr. Otukoya found that in the interest of justice he had to testify he, in fact, ceased appearing for the appellant and Mr. Agbesanwa then took over. In Gachi & Ors. v. The State (1965) N.M.L.R.33 at p.336 this court drew the necessary distinction between the competence of counsel to give evidence in a case he is conducting and the desirability of counsel giving evidence in those circumstances viz:

“On behalf of Agbuku Angula, who was acquitted, defending counsel gave evidence in support of his alibi. He was a competent witness in law but for the reasons which were stated in Horn v. Rickard and approved by this court in Obadara v. President Ibadan West District Grade B Customary Court, We think it highly undesirable that counsel should give evidence in a case in which he is appearing professionally.” (The italics are mine.)

 

Gachi’s case supra is a complete answer to the question of whether Mr. Otukoya was a competent witness. He was a competent witness and the learned trial judge was right in so holding. The Court of Appeal, again with respect, was wrong in holding that Mr. Otukoya was not a competent witness and that his evidence should be expunged from the record. In Gachi’s case also this court confined its censure with regard to the undesirability of counsel giving evidence” to cases in which counsel is appearing. This was not meant to include cases in which counsel had at an earlier stage in the proceedings but was not in fact appearing when he gave evidence. The emphasis is on the position of counsel at the time he chose to give his evidence. If at that particular point in time he is not appearing in the case, that is to say he has in fact withdrawn his appearance then the censure will not apply.

 

Another case relied upon by the Court of Appeal was R v. Secretary of States for India in Council & Ors Ex parte Ezekiel (1941) 2 All E.R. 546. At p.556, Humphreys J. dealing with the undesirability of counsel appearing as witness observed:

“It has been brought to the attention of the court that, on the hearing at Bow Street, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case’

 

In the case of R. v. Secretary of State for India (supra) the emphasis was on, and the objection was to, counsel giving evidence and continuing thereafter to act as counsel. That case did not decide that counsel cannot give evidence but it did decide that where counsel finds himself in a position where he is the only person with the necessary knowledge to prove or disprove a point in issue in the case, he should withdraw from that case and then give’ his evidence. He should not give evidence and still continue to act as counsel. In the present case now on appeal to this court, the record of proceedings shows that Mr. Kunle Otukoya took out the writ of summons, settled and filed the statement of claim, filed a motion for interim injunction, filed an application for summons for directions. The actual hearing of the suit commenced on Friday the 26th day of September, 1980. On that day counsel for the plaintiff was Agbesanwa not Kunle Otukoya. From then on Otukoya’s name ceased to appear on the record as counsel for the plaintiff. It is then obvious that throughout the hearing, and after his own evidence, Mr. Otukoya never again appeared as counsel for the plaintiff (now appellant in this court). Mr. Otukoya undoubtedly gave evidence, but he did not continue thereafter to act as counsel in the case.

 

The court below at p.147 of the record of proceedings referred to and relied on the case of Adesanya Idowu v. M. A. Adekoya (1960) W.N.L.R. Part 4 p.210. This case even if it was properly decided (which is doubtful) is not binding on this court. In that case Quashie-Idun, C.J. of the High Court of Western Nigeria observed:

“This appeal raises an important question of law. It is whether or not proceedings in a court should be declared irregular because counsel engaged in the case gave evidence for his client and at the same time continued to appear in the case.”

 

From the above it is clear that the learned Chief Justice’s objection was not that counsel gave evidence for his client. No. It was rather that after giving that evidence he still continued to appear in the case. Concluding his judgment Quashie-Idun, C.J. at pages 211/212 said:

`I think that this case simply illustrates the importance of adhering to the practice of not allowing counsel to appear both as counsel and as a witness in the same case- It is my view that the procedure adopted in this case is not only contrary to the practice of the courts but it is also an irregularity which has rendered the trial unsatisfactory … In the circumstances of the case I think the ends of justice will be amply met by ordering a new trial”

 

I will say little or nothing about the validity of this conclusion because it is not necessary, for the decision of this case.

 

That counsel should not appear both as counsel and witness in the same case is a rule of practice and not a rule of law. If a rule of practice, a rule of professional ethics is breached who should suffer? It is here that the comments by Wig more in his treatise I mentioned earlier on in this judgment become relevant. At page 606 paragraph 1911 Wigmore asked the following relevant questions:

“Is it not strange, however, that courts have sometimes been found ordering a new trial for counsel’s breach of this rule of professional ethics? Why punish the innocent client? Why not suspend the counsel from practice? Courts are sometimes queerly illogical.”

 

The facts in Idowu v. Adekoya supra decided by Quashie-Idun, C.J. however, do differ from the facts of the case now on appeal to this court. In one, counsel gave evidence for his client and thereafter still continued to appear as counsel in the case; while in the other (the case now on appeal) counsel gave evidence and did not continue to appear, as counsel in the case after his evidence.

 

From all the cases cited and all the authorities the court has been referred to the following facts have been established beyond doubt, namely:

1. That counsel engaged in a case is a competent witness if he chooses to give evidence in that case.
2. That his evidence is in law admissible.
3. That as a mere matter of practice and professional ethics it will be desirable that having given evidence counsel should withdraw and cease to appear in the same case.

 

The court below, again with the greatest respect, carried the observations on the undesirability of counsel appearing as counsel and witness a bit too far. What the authorities tried to emphasize is that as soon as counsel finds himself in the position of having to testify as a witness he should no longer appear to/and conduct the same case as counsel.

 

To summarize one may now attempt to answer the questions suggested by grounds 1-6 of the grounds of appeal.

 

Question No. 1:

Whether it was wrong and contrary to practice for Mr. Otukoya to have given evidence?

Answer:

No. But it will be as a matter of practice and professional ethics undesirable for Mr. Otukoya or any counsel who gave evidence for his client to continue to appear and conduct the same case after his evidence for at the end he will be summing up and addressing on the evidence including his own evidence including his own evidence.

 

Question No. 2:

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? –

Answer:

Mr. Otukoya or any other counsel for that matter is in law a competent witness in a case he has been briefed. Being a competent witness his evidence is in law admissible. It will be wrong in law to expunge admissible evidence from the record.

 

Question No. 3:

Whether the fact that Mr. Otukoya did give evidence for the plaintiff/appellant will have anything to do with the trial court’s assessment of his evidence and his credibility as a witness?

Answer: –

The credibility, of any witness depends on:-

1. His knowledge of the facts to which he testifies.
2. His disinterestedness.

iii.      His integrity.

1. His veracity.
2. His being bound to speak the truth by such oath as he may deem obligatory or by such affirmation or declaration as may by law be substituted for an oath.

 

Mr. Ayokunle Olanrewaju Otukoya gave evidence as P.W.1. The thrust of his entire testimony dealt with his preparation of Exhibit B and Exhibit A for the parties and the Circumstances surrounding the preparation by him of these two exhibits. No one will know these facts and circumstances better than Mr. Kunle Otukoya. As a lawyer and member of an honourable profession, a minister in the sacred temple of justice, it will be atrocious without sufficient evidence to the contrary to doubt his veracity. Exhibit C prepared by Coker and Coker amply vindicates, substantiates and corroborates Exhibit A. On the sore and material issue whether Exhibit A was read and interpreted to the defendant/respondent before she signed, the evidence of the defendant herself at p.45 lines 30-37 is revealing:

“I went before a magistrate. I do not know his name. The magistrate asked me if the contents of Exhibit A had been read over to me and I said yes. I said yes because before I was taken before the magistrate the plaintiff and lawyer Otukoya warned me at home to answer such question in the affirmative … I know it was a lie I told the magistrate. I was told to tell the lie in order to save time. I had no anxiety over it since my husband was with me.”

 

This evidence speaks for itself. It needs no other comment except that no one can blame a trial court for disbelieving a self-confessed liar. Who knows when she is lying and when she is speaking the truth. The pity of it is that the defendant/respondent was with her husband if there is going to be a choice between the evidence Kunle Otukoya, P.W.1 and Alhaja O. A. Tijani, defendant/respondent, I am sure that no fair-minded jury can prefer the evidence of the defendant/respondent to that of the P.W.1, Kunle Otukoya: At least the learned trial judge who, saw the two witnesses in the witness box, who heard them give evidence and who watched their demeanour branded the respondent a liar and rightly too” He believed the P.W.1 Kunle Otukoya and in my view rightly too. That should have been the end of this issue. The mere fact that counsel decided to give evidence will not ipso facto detract from his credibility. I admit that there may be some element of partisanship between counsel and client but the facts and circumstances of this case do obviously show up the P.W.1 Kunle Otukoya as a truthful witness. In any event the learned trial judge who saw him, heard him, and watched his demeanour believed him. The Court of Appeal from the printed matter alone was not in a position to disbelieve the P.W.1, Kunle Otukoya. If the P.W.1’s evidence is believed, as it was by the trial court, the case of the plaintiff/appellant cannot be faulted on the facts.

 

Question No. 4:

Whether Mr. Otukoya ought to have known at least at the close of pleadings that he was going to be a witness?

Answer:

At the close of the pleadings issues are joined by the parties. It is on those issues that the parties are obliged to call witnesses in proof or disproof thereof. Mr. Kunle Otukoya then knew that the defendant/respondent was denying the material and relevant fact that the contents of Exhibit A were read over and interpreted to her before she signed before the magistrate. Mr. Kunle Otukoya then had the option of calling the learned magistrate or of giving evidence himself. He chose to give evidence himself and immediately applied by motion to be dismissed as counsel for the plaintiff. In any event after giving his evidence he took no further part in the case as counsel for the plaintiff. This is perfectly legal, perfectly ethical and professionally, permissible.

 

Question No. 5:

Whether the learned trial judge was right or wrong in overruling Mr. Osinowo’s objection that Mr. Otukoya was incompetent to testify as a witness for the plaintiff?

Answer:

The learned trial judge was perfectly right in over-ruling Mr. Osinowo’s objection. Under section 154(1) of the Evidence Act the competence of Mr. Otukoya to testify for the plaintiff cannot be questioned. His evidence for the plaintiff was legally admissible.

 

Question No. 6:

Was Mr. Otukoya wrong to have accepted a retainer in this case?

Answer: No.

Having answered all the six questions, which the judgment of the Court of Appeal appears to have posed, in the favour of the plaintiff/appellant, this appeal succeeds on all the seven grounds. The only outstanding question one may like to tackle is one raised by Mr. Lardner, S.A.N. learned counsel for the respondent in his brief namely the import and impact of Order 4 of the High Court of Lagos State (Civil Procedure) Rules which provides:

“Order 4

Change of Legal Practitioner

Every legal practitioner who shall be engaged in any cause or matter shall be bound to conduct the same on behalf of the plaintiff or defendant, as the case may be, by or for whom he shall have been so engaged, until final judgment unless allowed, for any special reason, to cease from acting therein, by the court of its own motion, or on application made by the plaintiff or defendant or the legal practitioner, as the case may be, not less than three clear days before the date fixed for hearing, but such legal practitioner shall not be bound, except under express agreement, or unless re-engaged, to take any proceedings in relation to any appeal from such judgment’.

 

I must observe that the above Order exists to protect the interest of the lay-client. If there is any breach of the provisions of Order 4 above, it is the lay-client who will naturally complain. The plaintiff/appellant has so far not complained that his counsel, Mr. Otukoya, deserted him in the middle of the case. I do not think it is open for the defendant/respondent to make an issue of that. Also the object of counsel applying to withdraw “not less than three clear days before the date fixed for hearing” is to enable the client affected to arrange for representation by another counsel. Here the plaintiff/appellant was not embarrassed or put into any jeopardy by Mr. Otukoya’s withdrawal as Mr. Agbesanwa’ immediately replaced Mr. Otukoya. If therefore one looks at the spirit and intendment of Order 4 above, it is easy to hold that it has substantially been complied with in this case.

 

In the final result and for all the reasons given above, 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. There will be costs to the appellant in this court which I assess at N300.00 and also costs in the court below assessed at N400:00.00

 

 

ANIAGOLU, J.S.C.:

The judgment just read by my learned brother, Oputa, J.S.C., was made available to me in draft. I agree with his reasoning and conclusion and would also allow and hereby allow the appeal, set aside the judgment of the Court of Appeal and hereby restore the judgment of the High Court.

 

I would not ordinarily add anything more to this note of concurrence but for the obvious ambivalent gerrymandering of the ostensibly simple respondent (Alhaja Osenatu Adebimpe Tijani) who, feigning smartly under illiteracy, is able to double deal the appellant, and by shedding crocodile tears is able to draw the sympathy of the Court of Appeal, hidden under the veneer of legal arguments on the admissibility and propriety or otherwise, of the evidence of the legal practitioner, Mr. Otukoya, who once acted for the plaintiff/appellant and whose evidence was clearly admissible, he being a competent witness (s.154(1), Evidence Act Cap. 62 Vol. 11 Laws of the Federation of Nigeria, 1958).

 

In her public notice, Exhibit C, drafted by her solicitors (then Coker and Coker) the respondent claimed that apart from only 10 (ten) acres of such lands sold by her to D. T. Elabanjo , she had not sold any portion of her land to anyone else. That was on the occasion, in 1979 when `police intervened, as she went on the lands which she disputed with other purchasers, with a caterpillar and removed concrete beacons and damaged trees. At that time it suited her to admit that she sold ten acres to the appellant. This time (she gave evidence on 24th February, 1981) she modified the sale by claiming that her ten acres sold to Elabanjo were in the “swampy area”.

 

It is absolutely necessary that the courts of this country must continue to protect the unsophisticated illiterate of this country against any avarice, caprice and sharp-practice of the urbanised and sophisticated elites, in the true spirit and intendment of the 1915 Illiterates Protection Act Cap 83 Vol. III Laws of the Federation of Nigeria, 1958, and that all care must be taken to always watch and detect any act of oppression of the former by the latter.

 

But oppression may sometimes, though not often, come from an illiterate against a literate. And, therefore, the courts must also see that no illiterate takes umbrage under his illiteracy and work injustice against an elite, for, injustice is injustice no matter against whom it is practiced. The golden rule must lie in an evenhanded justice – for the rich and for the poor; for the illiterate as well as for the elites. One sees in this case on appeal, a classic case of an oppression by a smart lying illiterate against an unsuspecting elite. The courts must also check her in her unbridled greed.

 

With this short comment I allow the appeal as hereinbefore stated and abide by the costs as decreed in the judgment of Oputa, J.S.C.

 

 

COKER, J.S.C.:

I have had the advantage of a preview of the lead judgment just delivered by my learned brother, Oputa J.S.C. I entirely agree with his reasons and conclusion that this appeal ought-to be allowed and the judgment of the trial court restored.

 

The main thrust in this appeal is the competence of Mr. Otukoya, who was originally counsel for the plaintiff, as a witness at the trial. It was Mr. Osinowo, learned counsel for the defendant at the hearing before Oshodi, J. of the High Court of Lagos State, who objected to the competence of Mr. Otukoya as a witness on the ground of public policy. He said it is inadvisable for him to go into the witness box to give evidence for the plaintiff and that “he was going to tie up the loose ends of the plaintiff’s case.” The learned judge overruled the objection, holding that he was a competent witness. When this ruling was given on 3rd November 1980, Mr. Agbesanwa had taken over the conduct of the case of the plaintiff as from 25th September 1980. On that day he did not announce that Mr. Otukoya was appearing with him. On the 26th September 1980, hearing of evidence commenced, Otukoya was not recorded as appearing for the plaintiff. On the 13th October 1980, Agbesanwa informed the court that his next witness was Mr. Otukoya, and it was at that stage that Mr. Osinowo raised objection to the competence of Otukoya as a witness for the plaintiff. There and then Mr. Agbesanwa informed the court that Mr. Otukoya had withdrawn his appearance and would no longer appear for the plaintiff in the case and he never did throughout the hearing. The trial judge in his reserved ruling held that:

“He is competent to give evidence for the plaintiff. He cannot, however, return to the Bar or take further part in the trial as counsel for the plaintiff.”

 

At the end of the hearing, judgment was entered in favour of the plaintiff. The defendant, not satisfied with the decision, appealed to the Court of Appeal. The point taken by Mr. Lardner in the court below was that Otukoya did not withdraw from the case because the court did not formally grant him leave to withdraw his appearance as provided in Order 4 of the Lagos State High Court (Civil Procedure) Rules. I agree with the view of my learned brother Oputa, J.S.C. that the rule exists in the interest of and for the protection of the counsel’s client and not that of the adversary. It was for his client, the plaintiff in this case, to complain, not the defence. Since the withdrawal was with the knowledge, consent and interest of the plaintiff, it was irrelevant that the trial court did not make a formal order granting him leave to withdraw. As a matter of fact; he actually withdrew his appearance before and after giving evidence. The court ruled that he could not return to the Bar or take further part in, the trial as counsel for the plaintiff, and that was precisely what counsel did. The said rule did not make him an incompetent witness. It is irrelevant therefore that his motion seeking leave to withdraw his appearance was never pursued, when in fact the trial judge had made the order which he sought in his motion to the court.

 

 

MOHAMMED, J.C.A., was of the view that the learned trial judge was in error to overrule the objection raised by Mr. Osinowo, and that in consequence the testimony of Otukoya should be expunged from the record. He said:

“Even if the appellant did sell the acres, before partition, to the respondent (a fact which she denied) the sale could not stand because the identity of her own portion of the land had not been ascertained, and she could not sell a land which would turn in the end to be part of her brother’s portion of the inherited land. In the circumstance even if the evidence of Mr. Otukoya had been expunged from the record the respondent could not have proved his claim on the evidence adduced before the court. This appeal therefore succeeds and it is allowed.”

 

During the hearing, I asked Mr. Lardner whether the learned justice was right in making this finding in the absence of any counter-claim for such relief by the defendant to set aside the deed of conveyance on that ground. The defendant admitted she executed the conveyance in favour of the plaintiff, pursuant to a contract of sale of portion of her land. He declined to answer the question on the ground that there was no appeal against the finding. But it is equally true that none of the grounds of the appeal of the defendant raised the issue whether the sale could not stand because the identity of her own land could not be ascertained at the time defendant surveyed it. The defence simply was that the plan now affixed to the deed of conveyance was for a different land and not that which was attached at the time the deed was executed. With due respect, the learned justice misdirected himself. The indisputable fact remained that the land in question fell within the portion partitioned to her and the deed of conveyance was executed on a date after the order of partition by the court. There was no evidence that there had been no notional or mutual partition of the land between the two beneficiaries (respondent and her late brother) before the formal consent order of court. It was therefore not right for the learned justice to conjecture this fact. –

 

Mr. Lardner in his respondent’s brief (2.9) conceded

“It is not the law that a legal practitioner for a party is not a competent witness to go into the witness box to testify in any circumstance for his client.”

 

He conceded in his oral submission before this court that Otukoya was a competent witness, but argued the whole proceedings at the hearing was riddled with irregularities and therefore the case should be retried. He was unable to point out the irregularities he had in mind. I myself can find no such irregularity. That being the case, how else can one understand the judgment of the learned justice be construed when he said “The learned trial judge was in error to overrule the objection raised by Mr. Osinowo … against the testimony of Mr. Otukoya.” As I have already shown the ruling of the trial justice on Mr. Osinowo’s objection, was as to the competence of Otukoya as witness for the plaintiff.

 

The other argument of Mr. Lardner on compellability of a witness and reference to Phipson on Evidence 13th Ed. para. 301 p.690 is irrelevant. Similarly, section 6(a) of the Evidence Act regarding the power of the court to exclude evidence of fact which appears to be too remote to be material, is equally irrelevant in this case. The issue of compellability did not arise. Mohammed J.C.A. did not say Otukoya’s evidence was too remote to be material in the circumstances of the case. On the contrary, he said:-

“I do not entertain any doubt to hold therefore that the evidence of Mr. Otukoya is very vital to the plaintiffs’ case …”

 

Further, he stated:

“Mr. Otukoya is therefore wrong to accept a retainer in a case in which he had reason to believe he would be a witness … Mr. Otukoya testified and said that it (i.e. Exhibit B, the deed of conveyance) was interpreted to her in his presence before a magistrate. The learned judge believes him…”

 

I have shown that Mr. Otukoya actually withdrew before the case of the plaintiff was opened by Mr. Agbesanwa, and it is not correct, as Mr. Lardner maintained throughout in his brief, that Mr. Otukoya remained the plaintiff’s legal practitioner throughout the case and that the court below was correct in excluding his evidence as too remote to be fairly taken into account in deciding the case. I can find no basis whatsoever to support the view of the learned justice that because of his professional relationship with the plaintiff, Otukoya’s evidence ought to be discredited. Equally, I am unable to find support for the stand which the court below took in reviewing and setting aside the findings of fact of the trial judge, which were amply supported by evidence and based on credibility of the witnesses.

 

For these reasons and other reasons given by Oputa, J.S.C., I will allow the appeal and set aside, the judgment and orders of the court below and restore the judgment of Oshodi, J. given on 11th May 1982. I also agree with the order of costs made by Oputa, J.S.C.

 

 

KARIBI-WHYTE, J.S.C.:

I have read the judgment of my learned brother Oputa J.S.C. in this appeal. I entirely agree and for the reasons stated therein that this appeal be allowed. I only wish to make a few comments on the question of the competence of counsel and admissibility of the evidence of counsel conducting a case, or indeed the propriety vel non of counsel giving evidence in a case which he is conducting. It seems to me that the Court of Appeal set aside the judgment of the learned trial judge essentially on their view of the competence of counsel conducting a case to give evidence in the case.

 

The facts of the case which are not in dispute on this point have been very comprehensively stated in the judgment of my learned brother Oputa J.S.C. I therefore need not repeat them. I regard the issue of the credibility or weight to be attached to the evidence of Mr. Otukoya, of counsel to the plaintiffs, whose evidence was rejected in the Court of Appeal on the ground that it was incompetent and inadmissible, as not in issue. The learned trial judge before whom Mr. Otukoya gave evidence believed him and did not doubt its veracity. The Court of Appeal did not reject the evidence on the ground of its veracity, but on the ground that it was not admissible since Mr. Otukoya was counsel conducting the case for the plaintiff/appellant. In fact very great weight was placed on his evidence. In the lead judgment of the Court of Appeal Uthman Mohammed stated as follows:-

“I do not entertain any doubt to hold therefore that the evidence of Mr. Otukoya is very vital to the-plaintiff’s case…”

 

What seemed to be in issue as stated by the Court of Appeal was ”… the role played by a lawyer, Mr. Kunle Otukoya, who initiated the proceedings in respect of the claim of the respondent (the plaintiff) before the trial court.” The question which raised the issue of the evidence of Mr. Otukoya was that he signed the writ of summons of the plaintiff as counsel, argued interlocutory application, took out summons for directions on behalf of the plaintiff. It is pertinent to point out that Mr. Otukoya subsequently ceased to appear as counsel to the plaintiff. He applied to withdraw as counsel, but later withdrew the application. Mr. Agbesanwa took over the conduct of the case, whilst Mr. Otukoya appeared before the court to give evidence for the plaintiff his client. It is on these predicating facts that the Court of Appeal observed that Mr. Otukoya as counsel to the plaintiff must have known that his evidence was vital to the case of the plaintiff ever before he issued the writ, and that it was wrong of him to accept a retainer in a case in which he had reason to believe he would be a witness. The Court of Appeal concluded:

“In the circumstances even if the evidence of Mr. Otukoya had been expunged from the record the respondent could not- have proved his claim on the evidence adduced before the court.”

 

This is a curious assumption by their Lordships of the Court of Appeal. Whereas certain issues could be anticipated, it is not usual to anticipate denials of obvious facts. This was what appeared to have confronted Mr. Otukoya. It was not unreasonable for him to assume that the defendant would not deny the execution of Exhibits A and C.

 

The Court of Appeal would appear to have assumed that the law is that counsel retained by a litigant cannot be a competent witness for his client in the ensuing litigation. I think it is better to state the ipsissima verba of the Court of Appeal through Uthman Mohammed J.C.A. who said,

“I have carefully gone through the facts and law referred to in the cases cited above and I entirely agree that it is wrong and contrary to practice and etiquette at the bar, for a counsel to appear in a professional capacity in a case in which he is a material witness.”

 

The above quoted dictum clearly demonstrates that the Court of Appeal’s understanding of the law was that since it was contrary to practice and etiquette at the bar, for counsel to appear in a professional capacity in a case in which he was a material witness, counsel was therefore incompetent to give evidence, accordingly the evidence of counsel in such a case was inadmissible. Even if it was admitted such evidence was liable to be expunged.

 

The issue of competence to give evidence is governed by statutory provisions. The question of the competence of witnesses generally is provided in section 154(1) of the Evidence Act which is as follows:

“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind.”

 

Thus all persons with the exception of those disqualified in s.154 are competent witnesses. There is nothing in this section precluding a legal practitioner from giving evidence in a case in which he is retained. Indeed express provision is made in s.171 of the Evidence Act, enabling a legal practitioner to give evidence in a matter in which his services have been retained.

Section 171 provides as follows:-

“If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 169, and, if any party to a suit or proceedings calls any such legal practitioner as a witness, he shall be deemed to have consented to such disclosure only if he questions such legal practitioner on matters, which, but for such question, he would not be at liberty to disclose.”

 

Again, section 186(1) of the Evidence Act by implication is also directly in point and provides as follows:

“On the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses.”

 

Mr. Ajayi S.A.N., counsel for the appellant referred us to the above provisions of the Evidence Act.

 

It is obvious and Mr. Ajayi properly, pointed out that both sections 171, 186(1) of the Evidence Act though referring to `legal practitioners’ or `legal advisers’ contemplate legal practitioners conducting the case of their clients appearing in court as witnesses, there is no suggestion that counsel is excluded. This per se is proof of their competence to give evidence before the court in respect of the cases in which they were being called as witnesses. Accordingly a person is not rendered incompetent as a witness merely because he is counsel in the case. The competence of counsel was taken for granted by the authors of Halsbury’s Laws of England 4th Edition para. 164, where it was stated as follows:

“Counsel or solicitors who are appearing as advocates in a case should not also act in the same case as witnesses, but if they tender evidence their evidence is not inadmissible.”

 

Similarly in paragraph 1187 at p.653 Vol. 3 of the same book, the following appears:

“Counsel as witness. A barrister should not act as counsel and witness in the same case; and he should not accept a retainer in a case in which he has reason to believe he will be a witness, and if, while engaged in a case it becomes apparent that he is a witness on a material question of fact, he ought not to continue to appear as counsel if he can retire without jeopardizing his client’s interests, but if he continued he is not debarred from going into the witness box and being cross- examined.”

 

A number of decided cases and the passages quoted above were cited to us by counsel in support of the proposition that counsel conducting a case cannot also in the some case appear as a witness for his client. I agree that there are decided cases which suggest that it is undesirable for counsel to act in two capacities in the same case; i.e. both as counsel conducting the case and as witness for his client. On a closer examination of the cases in the light of the rationale of practice relied upon, it is immediately obvious that the rule of practice has been misunderstood and was being construed without due regard to the interest of justice for which it was formulated. It was not and cannot be designed to exclude evidence otherwise available to a party to litigation to establish his case.

 

I start with Eastland v. Burchell & Wife (1878) 3 Q.B.D. 432. Here the solicitor to the husband tendered himself to give evidence as to the means of the husband against whom the wife was claiming additional maintenance; and the trial judge refused to hear that evidence. On appeal the court regarded the evidence sought to be tendered by the solicitor as irrelevant but went on to say – ”… if evidence on that point had been relevant we see no reason why the evidence offered should be rejected.” Thus the question of the competence of the solicitor in the circumstance to give evidence was accepted. The evidence was there not accepted not because it was incompetent having been given by the solicitor conducting the case, but because it was regarded as irrelevant for the determination of the issue.

 

In contrast is Idowu v. Adekoya (1960) W.N.L.R. 210, a case with identical facts, the question of relevance of the evidence of counsel was not discussed, and was not even adverted to. In that case the action by the plaintiff was for arrears of rent `and possession of premises. When the defendant defaulted in the payment of, rents counsel for the plaintiff at all material times acted for the plaintiff. The evidence was that when the action was brought against the defendant, he (defendant) approached the Oba of the town in which he and counsel to the plaintiff lived to try and effect a settlement. This was done and plaintiff was informed. This arrangement was made in the absence of the plaintiff. At the trial the defendant denied having approached the Oba for the purpose of effecting a settlement. Counsel who was party to the settlement instead of calling the Oba as a witness chose to give evidence of this fact after the evidence of the plaintiff. The learned trial magistrate accepted the evidence and gave judgment for the plaintiff. The judgment was challenged on appeal on the ground that counsel in charge of the conduct of the case in court could not give evidence. The trial in which such evidence was accepted and acted upon and the admission of and acting upon such evidence amounted to an irregularity of a fundamental nature prejudicial to the case of the defendant. In reversing the judgment of the magistrate, Quashie-Idun C.J. after criticizing the failure to call the Oba as a witness said,

“The plaintiff’s counsel should have advised the plaintiff to engage another counsel when he decided to give evidence and not to call the Oba as a witness. I think that this case amply illustrates the importance of adhering to the practice of not allowing counsel to appear both as counsel and as a witness in the same case. It is my view that the procedure adopted. in this case is not only contrary to the practice of the courts but it is also an irregularity which has rendered the trial unsatisfactory in that a more competent witness than plaintiff’s counsel was not called to give evidence on a very important issue.”

 

It seems that the learned Chief Justice was not saying that plaintiff’s counsel in this case was not a competent witness, but that the Oba, a more competent witness, was not called to give the evidence given by the counsel for the plaintiff. In actual fact the appeal was allowed on the alleged irregularity of counsel giving evidence which in his opinion rendered the trial unsatisfactory. I have already referred to the statutory provisions to show that counsel is a competent witness for his client. He may withdraw after giving evidence but can when the justice of the case so demands continue the conduct of the case even after giving evidence.

 

In Obadara & ors v. The President Ibadan west District Council Grade 3 Customary Court (1965) N.M.L.R. 39, the question whether counsel can give evidence in support of his client’s case arose as a subsidiary issue. It was held that “it is un desirable for counsel to appear in a professional capacity in a case in which he is a material witness.” The question of competence was here also not in issue. Counsel was accepted as competent. The case of Horn v. Rickard (1963) N.R.N.L.R. 67 usually relied upon was concerned with the desirability of members of the bar swearing to affidavits. Holden J. applied the rules of professional ethics governing giving evidence in support of a client’s case to the question of swearing to affidavits for the same purpose. In Horn v. Rickard (supra) the learned judge did not see anything in the particular case to make the swearing of the particular affidavits abhorrent in principle. Thus where the averments in the affidavit are not contentious and concerned only with setting out purely formal facts, no harm would result. The learned judge felt that where counsel is the only person with knowledge of the facts, which are likely to be disputed, it would be prudent to withdraw from the conduct of the case so as to swear to the affidavit.

 

Gachi & ors v. The State (1965) N.M.L.R. 33 drew the necessary distinction between the competence of counsel to give evidence in a case he is conducting and the desirability of counsel giving evidence in those circumstances. It was in Gachi & ors (Supra) said,

“On behalf of Agbuku Angula, who was acquitted, defending counsel gave evidence in support of his alibi. He was a competent witness in law but for the reasons which were stated in Horn v. Rickard and approved by this court in Obadara v. President, Ibadan West District Grade B Customary Court, we think it is highly undesirable that counsel should give evidence in a case in which he is appearing professionally.”

 

1. v. Secretary of State for India in Council & Ors, Ex pane Ezekiel (1941) 2 All E.R. 546, was a case where junior counsel gave evidence as an expert in Indian law, and continued with the senior in the case for the duration of the trial. The defendant did not object to the practice. In the judgment of the Court of Appeal Humphreys J., observed.

“It has been brought to the attention of the court that on the hearing at Bow Street, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case.”

 

In R. v. Secretary of States for India-in-Council, Ex. pane Ezekiel the observation was on counsel acting also as witness in the same case. It was not a question of the competence of counsel as a witness because he had acted or was acting as counsel. The comment of the court was on the undesirability of counsel occupying the two roles of counsel and witness in the same case. Like Horn v. Rickard, (supra) it decided that where counsel finds that he is the only person with the necessary knowledge to prove or disprove a point in issue in the case, as in the appeal before us, he should withdraw his appearance as counsel and appear as a witness. Counsel should not give evidence and still continue to act as counsel. On the facts of this appeal, Mr. Otukoya after his application to withdraw his appearance, returned as a witness, and never thereafter throughout the trial functioned as counsel in the case.

 

Mr. Lardner has submitted with sufficient force and he is in law quite correct, that the application by Mr. Otukoya to withdraw his appearance having also been withdrawn, Mr. Otukoya remained on the record as counsel to the plaintiff even though he did not thereafter appear to conduct the case of the plaintiff in court. It was Mr. Lardner’s contention that since Mr. Otukoya remained on the record of the court as counsel to the plaintiff he was incompetent to give evidence as witness for the plaintiff and the Court of Appeal was right to have excluded the evidence so admitted by the trial judge. I think this is a patently erroneous view of the law. There is no statutory provision which makes counsel incompetent to give evidence for his litigant client merely because he is also his counsel.

 

It is obvious that the rule of practice relied upon is a counsel of prudence formulated to protect and preserve the high standard of professional ethics at the Bar. Otherwise, apart from being a competent witness, counsel’s evidence even whilst in charge of the conduct of the case of his client is admissible. Thus if his withdrawal from the conduct of the case of his client will jeopardize the client’s interest, counsel is obliged to continue even-after giving evidence in the case. There is an important qualification to the practice demanding the retirement of counsel who had appeared as witness in the case he is conducting. It is that he should only do so if the withdrawal will not jeopardize his client’s interests. Both statutory provisions and rules of practice governing the administration of justice are designed for the doing of substantial justice between the parties before the court. The essence of calling evidence and determining the competence of witnesses or admissibility of evidence is to determine the truth of the matters in dispute so as to enable the court to do justice between the parties before it. Even the rules excluding evidence are formulated to achieve the same objective. Hence where evidence is available to establish the matters in dispute before the court, the competence of such evidence not being in doubt, it is clearly preposterous and contra bones mores to contend that there is a rule of practice which denies a party to litigation leading evidence in support of his claim.

 

The rule of practice in my opinion is designed to insulate counsel from the attendant prejudices of acting also as a witness in the same case. Our jurisprudence has always emphasized the importance of counsel at all times remaining detached and impersonal in his attitude to the case and his advice to his client. This will protect him from forming a partial and befogged vision of the case of his client and enable him to function as a Minister in the temple of Justice. Again, the rule was designed to spare counsel from the personal involvement of and emotional attachment to the issues in the case and obviate the possibility of embarrassing and distasteful cross- examination. Counsel is strictly speaking not a party to the dispute and should not appear to be such. He should at all times be representing his client in a professional capacity. That is his correct legal position. Nevertheless, there may occur situations when the evidence which is crucial to the determination of the dispute and the doing of justice between the parties can only be given by counsel. In such a circumstance, the greater interest of justice between the parties, dictates that such evidence cannot be excluded by mere rules of practice designed also for the doing of justice. A contrary position will result in the court preventing the reception of material evidence on no ether grounds than that it was tendered by counsel to the party offering such evidence.

 

It has been admitted in the Court of Appeal that the evidence of Mr. Otukoya was not merely relevant but crucial to the determination of the issue of the circumstance of the preparation of Exhibits A and B and their execution before the magistrate. His evidence was amply vindicated by Exhibit C prepared by solicitors to the respondent which corroborated Exhibit A.

 

I shall therefore summarise the legal position of counsel giving evidence for his client in the case he is conducting and the principles applicable to the often “misunderstood rule of practice as follows:

1. Counsel is a competent witness in the case he is conducting on behalf of his client, and can give evidence in that case.
2. Counsel’s evidence in a case is admissible in law, whether he continues as counsel after giving such evidence or withdraws as counsel before giving such evidence. It is however desirable to withdraw as counsel before appearing as witness. –
3. The practice requiring counsel to withdraw as counsel before appearing as a witness in the case is a rule of practice.
4. In the final analysis, the question whether counsel should withdraw from conducting the case of his client after giving evidence will depend upon the nature of the case of the client and the interest of justice that will be served by such a withdrawal. Where the interest of his client will be adversely affected by his withdrawal, it will riot offend against any rules of practice if he continued.

 

For the fuller reasons given by my learned brother Oputa J.S.C. in the other aspect of this appeal, the judgment of the Court of Appeal is therefore hereby set aside. The judgment of Oshodi J delivered on the 11th May, 1982 in favour of the appellant as plaintiff, is hereby restored and affirmed. There will be costs for the appellant assessed at N300 in this court and N400 in the court below.

 

 

BELGORE, J.S.C.:

I have read in draft the judgment just read by my learned brother, Oputa, J.S.C. I agree entirely with his reasons and conclusion and will also allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the High Court. I abide by the costs awarded in the lead judgment.

 

Appeal allowed.