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25TH MARCH, 1965

SC.354/1964/E/SI /60

CWLR (1965) 6


LN-e-LR/1965/22 (SC)



CHILDREN AND WOMEN LAW:- Women/Children and Divorce – Petition for dissolution of marriage and custody of children – Order for maintenance of children – Need to give to give fair hearing to both parties – Effect of failure thereof







  1. OBI OKOYE, for the appellant (respondent to the petition).
  2. A. OKWUOSA, for the respondent (petitioner).



FAMILY LAW – MATRIMONIAL CAUSES: – Divorce – Petition for dissolution of marriage on the ground of desertion and of the husband’s adultery with a woman named – Claim for custody of children of the marriage for the maintenance of each child until the age of sixteen – Need for court to give fair hearing to both parties – When a trial is deemed not merely irregular but a nullity necessitating a mistrial

PRACTICE AND PROCEDURE:- Judge calling a party’s witnesses in his absence – Whether not merely irregular but beyond powers of judge thereby rendering the suit a mistrial

INTERPRETATION OF STATUTE:-High Court Law (E.N.) 1955, s.87 (see s.75 of cap. 61 of the 1963 Laws of Eastern Nigeria).




BAIRAMIAN, J.S.C. (delivering the judgment of the Court):-

On September 4th, 1963, W. J. Palmer J. gave judgment for dissolution of marriage on the ground of desertion and of the husband’s adultery with a woman named; he granted custody of the two children of the marriage to the wife (the petitioner) and dismissed the husband’s prayer for divorce in his answer; and he ordered the husband to pay his wife £2-10s-0d a month for the maintenance of each child until the age of sixteen. Now the husband complains on appeal that the learned judge erred in two ways:-

(1)     In starting to hear the case on August 9th in the absence of the husband’s counsel, who was ill;

(2)     In calling the husband’s witnesses to give evidence on September 4th in the absence of the husband and of his counsel.

As to the first complaint: We have the judge’s notes of August 9th, and affidavits sworn by Mr. Obi Okoye, the husband’s counsel, who was ill, and by Mr. Okwuosa, the wife’s counsel, who appeared in the court below. The two counsel do not agree on the facts. Mr. Obi Okoye relies on what he was told; he would have done better if he had asked his clerk, Mr. Ezeani (who appeared to ask for an adjournment and would do no more), and the husband, to swear affidavits on the facts. Mr. Okwuosa is again appearing as counsel, in the appeal, for the wife; he should have asked the wife to swear an affidavit. We think it would be unwise for us to decide about August 9th, whether the judge should or should not have begun to hear evidence.

On that day the trial judge heard the wife; she was the only witness on her side. Then the judge heard the husband’s evidence, and at his request adjourned to September 4th for him to call a witness. On the 4th September, the husband and his counsel were absent; there was a telegram from the husband that he had left for America and a telephone call from his counsel that he was ill. The judge’s note reads:-

“These witnesses subpoenaed by the respondent (viz., the husband) are present. In order that there may be no suspicion that the respondent has been unfairly treated, I will take their evidence myself.”

The 2nd complaint is that the judge called the witnesses and after that gave judgment.

Within our experience, that was an unprecedented course. There are two English cases on the point:-Coulson v. Disborough [189412 Q.B., 316,

C.A., and /n re Enoch and Zaretzky, Bock & Co.’s Arbitration [1910] 1 K.B. 327, C.A. The second comments on the first and the net result, as we understand it, is that a judge has no power to call a witness except with the consent of the parties. The situation may arise in which it appears to the judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him his witness. The judge may call him as a witness with the acquiescence of the parties and ask him the questions on which the judge thinks the witness can help. If his answers are useless on the issue in the case, neither party would be allowed to cross-examine him; but if his evidence is adverse to a party, that party should be given leave to cross-examine him on his answers only. There is a local provision on the powers of the trial judge; it is in section 87 of the High Court Law (E.N.), which provides that:-

“87. Any person present in Court, whether a party or not in a cause or matter may be ordered by the Court to give evidence, and to produce any document in his possession or in his power, in the same manner as if he had been summoned to give evidence, or to produce such document and may be treated for any refusal to obey the order of the Court as if he had been guilty of a contempt of court.”

Mr. Obi Okoye has referred to section 85, which relates to allowances to witnesses, and to section 86, which relates to forfeiture for neglecting to obey the witness summons, and argued that the aim of section 87 is to enable the trial judge to order a person in court to give evidence at the instance of a party though not summoned, and that the judge has no power to call the witnesses summoned by a party to give evidence in the absence of the party or of his counsel.

Mr. Okwuosa has not argued to the contrary; he has conceded that the judge called the witnesses as witnesses for the husband. His argument is that the course taken by the trial judge did not cause any miscarriage of justice to the husband. He referred to the passage in the judgment which says that:-

“Their evidence really amounts to very little; if anything it slightly favours the petitioner.”

We think that what the judge did was not merely irregular: it was beyond his powers; and in our opinion the proceedings on the 4th of September made the hearing of the suit a mistrial. The learned judge should have said that in his view the husband or his counsel was to blame for not turning up, and that he would consider the evidence given on August 9th and give judgment. He meant well, but the complaint that he erred in calling the witnesses is justified, and it is enough for disposing of this appeal.

Mr. Obi Okoye concedes that the wife should have custody of the children and receive five pounds for their upkeep pending the new trial and determination of the suit.

We order that the trial of the Suit No. E/51/60 and the judgment therein of 4th September, 1963, be set aside; there shall be a new trial before another judge of the High Court, Eastern Nigeria; and until the suit is decided, the husband shall pay the wife five pounds a month for their upkeep, and the wife shall have custody of the children.

As to costs, after hearing counsel, we order that the husband shall pay the wife’s costs of appeal assessed at thirty guineas; as to the costs in the court below, these are left to the discretion of the judge who determines the suit hereafter.



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