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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date:24TH SEPTEMBER, 2014 Suit No. NIC/ABJ/247/2012 BETWEEN RAMATU UMAR BAKO CLAIMANT AND 1. BRITISH COUNCIL NIGERIA 2. BEN FISHER DEFENDANTS REPRESENTATION Josiah Daniel Ebude Esq with Beatrice Ashicem, Victoria Ebohoeagbe, Miss C. M. Agavehinumo for the Claimant. Patrick Osu Esq with Daniel Ohabuku Esq with Kayode Omosehin and Hasiya Katangora (Miss) for the Defendants. RULING This is a Motion on Notice brought by the 1st Defendant/Applicant pursuant to Order 19 Rule 11(1) of National Industrial Court Rule 2007, Section 36 of the Constitution of the Federal Republic of Nigeria (1999) (as amended) and the inherent jurisdiction of this Court seeking the following Orders. 1. AN ORDER granting leave to the 1st defendant/applicant to recall the 1st claimant’s witness (Mrs. Ramatu Umar Bako) for further cross – examination in this suit. 2. AND FOR SUCH FURTHER OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance. The Motion is supported by an 11 paragraphs affidavit deposed to by Ohabuike E. Daniel a legal Practitioner in the firm of Ajumogobia & Okeke, Solicitors to the 1st Defendant/Applicant in this suit. There is also a written address in support of the application. In reaction to the 1st defendant application, the claimant filed a counter affidavit of 6 paragraphs sworn to by Victoria Ebhodaghe a legal Practitioner to the Claimant/Respondent and a written address. The 1st defendant/applicant also filed a reply on point of law to the claimant’s counter affidavit. In adopting the address in support of the Motion on Notice the counsel for the 1st defendant/applicant framed an issue for the instant application as follows:- Whether the Honourable Court ought to exercise its discretion in favour of the Applicant by granting the present application. In arguing this the learned counsel for the Applicant submitted that the applicant who is desirous of recalling a witness, who had previously testified in a suit in order to give further evidently may apply for leave to recall witness in accordance with the National Industrial Rule 2007. Relying on Order 19 Rule 11 of the Rules of the Court which provides as follows:- The Court may of its own Motion or on the application of any party order any person to appear before the court as a witness or to produce any documents. The learned counsel submitted further that Rules quoted above provide for the power to call a witness suo muto or on an application of a party. The counsel then contended that this court is empowered to grant an application for leave to recall a witness who had already testified in a suit before the court. The learned counsel relied as the case of TIWANI LILITED V CTMB LIMITED (1997) 8 NWLR (PT. 515) PAGE 140 @ PAGE 152 PARA C – D, where the court of Appeal held that:- The grant or refusal of an application to recall witnesses is at the discretion of court acting judicially and judiciously. The called in aid the case of OMOREGBEE V LAWANI (1980) NSCC PAGE 164 @ 165 LINES 40 – 50. He then submitted that Justice of the case requires that all parties be given fair opportunity not only to be heard but also to present their cases without impediment. That the fair hearing includes the right of a person to know that accusations, evidence and right to cross-examination the witness (if any) against the person in the determination of his rights and obligations. The learned counsel submitted where the recall of a witness for further cross-examination will ensure fair hearing opportunity to the parties or afford a party to properly present its case then this court ought to exercise its discretion in favour of the applicant relying on the case of UKEJE V UKEJE (2001) VOL. 27 WRN PAGE 142 @ 158 - 159 LINES 15 – 5. That based on the authority of this case the court has the discretion to grant the applicant the leave to recall a witness for further cross – examination. The learned counsel further contended that discretion should be exercised judicially and judiciously relying on the cases of OGAR V JAMES (2001) 10 NWLR (PT. 722) 621 @ 636 AND ELENDU V EKWUOBA (1995) 3 NWLR (PT. 386) PAGE 704 @ 749 PARA E – F. The learned counsel further stated the requirement to be satisfied by a party who is desirous of recalling a witness who has previously testified in a suit for the purpose of giving further evidence. Relying on the case of TWANI LTD V CTMB LTD (SUPRA) AT PAGE 152 PARAGRAPH D – F. That the applicant has satisfied the requirement for a party who is interested in recalling a witness for the purpose of adducing further evidence having placed it in its affidavit. That the applicant intends to recall the claimant’s 1st witness and what its intends to puts to the said witness if the application is granted, namely to confront the witness with the 1st warning of 6th November, 2009 and further cross-examination her on the document. The learned counsel submitted this is a suitable case for this court to grant the application for a recall of a witness for further evidence. In that during the cross – examination of the claimant’s 1st witness, Mrs. Ramotu Umar Bako, the applicant inadvertently omitted to confront the witness with some of the exhibits tendered through DW1, particularly the first warning of 6th November, 2009. That for the court to arrive at the truth of the matter before the applicant be allowed to recall the witness so as to put further evidence before the court. In conclusion the learned counsel urged the court to grant the application in the interest of justice of the case and the authorities cited. In response to the above submission the claimant/respondent adopted the lone issue framed by the applicant. The claimant opposed the application contending that the applicant wanted a further bite at the cheery as well as to punish the claimant who is not their witness for their own self inflicted inadvertence or omission. The claimant also submitted that the other façade for the application is as set out in the Affidavit in support vide paragraphs 3 – 8 and the written address is support, paragraphs 3.1, 3.8, and 3.9 which PW1, who is not their witness give “Further Evidence” by way of “Further Cross-Examination” after, (i) The claimant/respondent as PW1 had not only been discharged, but had closed her case pursuant to Order 19 Rule 10 of the NIC Rules, (ii) The defendants/applicants had opened their defense, called their Star Witness who tendered the “certain documents” admitted as “Exhibits”, had “Concluded his testimony and was discharged … He might end up being the only witness for the defendants/applicants of the Defendants and the provisions of Order 19 Rule 3 of the NIC Rules, would come into play. It is firstly submitted, that a law, the purpose of the use of cross-examination is to contradict, destroy or discredit a witness and to water down the case of an adversary. A party’s case is made on his pleading and evidence in Chief and not necessarily in cross-examination. See Onwumeru V Agwunedu (1987) 3 NWLR (Pt. 62) P. 673; Ita V Ekpenyong (2001) 1 NWLR (Pt. 695) P. 587 at 614. Thus, a party must concentrate his efforts in primarily proving its case through its own witnesses and evidence, especially where it has made positive allegations in its pleadings which pins the onus of proof on it and moreso in a case where the existence and receipt of documentary evidence as in this case D21 was affirmed by PW1 sought to be recalled. The claimant contended that when Mr. Patrick Osu lead counsel to both defendants specifically cross-examined the claimant/respondent on the document known and dated 6th November, 2009 admitted through DW1 as Exhibit D21, claimant answered as follows:- No. I was not cited for spreading malicious rumor about Idoko Chika. I received on e-mail from Ben Fisher about the issue of malicious rumor. I was not cited for this misconduct. In partial reply to the claimant’s counsel objection to the admissibility of D21 when DW1 was in the box on 5/3/2014, lead counsel to the applicant had submitted inter-alia as follows:- Firstly, it is totally incorrect that the witness did not lay foundation. To the extent that the witness said it is the e-mail forwarded to the claimant, since the witness make reference to e-mail, foundation has been laid. Assuming the document cannot be tendered, we did filed in this court a notice to produce the document dated 26th February. See Section 91 Evidence Act. Proper Foundation has been laid. It is not a document that the claimant did not extant to produce in court, going by the facts of the case and the defence put by the defence. The claimant know, that the need put the document before the court. Section 91 Evidence Act, especially 81, been giving the nature and the document bear out the case and the date to tender the document before the court. Accordingly, in Ayoke V Bello (1992) 1 NWLR (Pt. 215) P.350 at 404, Salami JCA held:- In realm of proof in a civil case, the onus or burden of proof is not static, but oscillates from side to side and thus in a particular circumstance the onus was clearly on the respondent to produce the evidence which he thought was missing. In the locus classicus case of Willoughby V I.M.B. Ltd (1987) 1 NWLR (Pt. 48) P. 105, the Supreme Court set the standards for this type of application. The first is that recourse must be had to the procedure provided by the Rules of procedure of the relevant court. In this case, the Order 19 Rule 11 of the Rules of this Honourable Court under which this applicants came are irrelevant to the nature of the relief sought. “Further Evidence” for the purpose of recalling a witness is evidence that was not available previously which is designed to be a reply to the evidence given by the other side. Thirdly, parties must come to court prepared at their peril and re-call can only be made in the interest of justice to explain or confirm point on which evidence had been given and which requires elucidation. Fourthly, a trial court will seldom, except in special circumstances permit a plaintiff after his case is closed to re-call witness to prove material fact. Fifthly, a trial Judge will not allow the re-calling of witness to enable party to patch up a hopeless case. Furthermore and fundamentally, party applying to recall witness must supply the trial Judge with sufficient facts relating to why he wants the witness recalled and what the intends to put to witness and it is on these facts that the trial Judge will decide whether or not the Justice of the case obliges him to exercise his discretion one way or the other. Finally, in exercising the discretion, the trial court is bound to maintain an even balance between the parties. The interest of justice is not served or helped by emotional considerations. It is submitted using the above yardstick as reveled by the contents of our counter-affidavit particular paragraphs 3(i) – (v) that the applicants have not satisfied any of the legal standards set out above. That is, there is no denial of fair hearing as touching cross-examination that the applicants had so much latitude and closed on their own volition. The affidavit evidence is ambiguous as to the documents tendered and admitted as exhibit excluding the letter of 6/11/2009, and in each case there is no discourse of special circumstances or the purpose for the recall of PW1 in relation thereto in none of the instances it is respectfully submitted, can it be said that those amounted to “Further Evidence” by the claimant who is not the witness of the applicants. Rather as we shall further demonstrate, all the cases they cited and are relying upon in support of their application work against them. It is now settled law that a case is only an authority for what it decided. In the Omoregbee V Lawani’s case cited at paragraphs 3.5 and 3.11 of their address, a case referred to by the Supreme Court in Wiloughby V I.M Ltd (Supra) the Plaintiff had not closed his case. Secondly, the case death with the Judge himself, in appropriate situation re-calling the witness and himself not the parties putting appropriate question to the re-called witness. Thirdly, the re-call was still in respect of the plaintiff’s case, not the defendant’s case. The applicant forgot or omitted to underline or highlight that portion of the Judgment in their address. In this case before the court, Claimant was extensively cross-examined, re-examined, called two further witnesses and closed her case. To worsen the case, the applicant called its star and most certainly its only witness, DW1 who has been discharged, awaiting the evidence of DW2 or the close of the defence case. Omoregbee’s case is therefore very strongly against the applicant’s application. For the sake of emphasis, the facts of the case are that the respondent as Plaintiff instituted an action for declaration of title to land, damages for trespass and an injunction in relation to the said land. After he concluded his testimony and his witnesses had been called, the defendants/applicants called no evidence at all in rebuttal. During the course of the trial the plaintiff gave evidence and was cross-examined. At a later date, counsel to the Plaintiff put him back into the witness box whereby he tendered a document considered material to his case. At the close of the trial the learned trial Judge was of the view that this recall of the Plaintiff to give further evidence amounted to a procedural irregularity which precluded him from giving the any Judgment based on the evidence of the Plaintiff. Such Judgment, according to him, would have been improper. The case of Ukeje V Ukeje also cited at paragraph 3.7 of their address is done out of context. In that case, the applicants forgot or omit to underline or emphasize the gist of the decision, which was to “recall a witness that has already testified before the court to come and adduce further evidence”. The witness was not called to be re-cross-examined as sought in this case. The witness in that case was the witness of the party re-calling him, not the adverse party. It is therefore submitted that contrary to the arguments of the applicants in paragraphs 3.9 and 3.14 of their address and the two decisions distinguished above, Ramatu Umar-Bako who is not the witness of the witness of the applicants and who the applicants overfed themselves while admittedly cross-examination her, on the authority of wilougbhy’s case, supra, cannot “adduce further evidence” in support of the defendant’s case or on the authority of Ayoke V Bello (supra) supply what the applicants think is the missing link or piece in their case. Their burden is to do so by calling their own evidence. Finally it is submitted that the application is novel in Nigerian Jurisprudence in every material particular and the applicants has not provided any legal authority helpful to this novelty. In conclusion for all the foregoing submissions, counsel urged the court to dismiss with substantial costs this application. Reply on points of law The applicant filed a Motion on 23rd May 2014 to recall the claimant’s 1st witness for the purpose of giving further evidence. The respondent filed a counter affidavit and written address on 28th May, 2014 in opposition to the Motion on Notice. This is the applicant’s reply on points of law. Whether Order 19 Rule 11 of the Rules of the Rules in irrelevant to the applicant’s application. The respondent argued in paragraph 5.0 of the written address in support of the counter-affidavit that Order 19 Rule 11 of the National Industrial Court Rules is irrelevant to the applicant’s Motion of 23rd May, 2014 and the nature of relief contained in it. Our reply in respect of the above is that the respondent misconceived the purport of Order 9 Rule 11 of the Rules of this Honourable Court. We further submit that Order 19 Rule 11 of the Rules of this Honourable Court is the only provision of the Rules permitting the court to grant leave to the applicant to call a person as a witness and, in the circumstances of the case, to recall a witness. The Order 19 Rule 11 of the Rules of the Rules which is headed “Power of Court to call for Evidence” provides as follows:- The court may of its own motion or on the application of any party order any person to appear before the court as a witness or to produce any document. It is trite law and by virtue of Section 232 of the Evidence Act 2011, the applicant has the right to confront any witness with a document or his/her previous statement by calling his or her attention to the contents of such document or statement for the purpose of contradicting the witness. Furthermore, where by inadvertence or otherwise, the witness is not confronted during his/her evidence, the witness may be recalled on the application of the party seeking to rely on the witness’ further evidence. Counsel submitted that evidence contemplated in the provisions of Order 19 Rule 11 of the Rules includes evidence elicited under cross examination of a witness called by the opposing party. He urged the court to discountenance the submission of the respondent. Whether application to recall a witness is limited to evidence which was not available at the time of the evidence. The respondent contends in paragraph 5.0 that an application to recall a witness is for the purpose of giving evidence which was not available previously which is designed to be a reply to the evidence given by the other side. He submitted reply to the above is that the purpose of recalling a witness is not restricted to giving new evidence. He submitted that a witness can be recalled for the purpose of clarifying ambiguities or to correct any inadvertence in the course of the trial. In the case of OMOREGBEE V LAWANI (1980) NSCC PAGE 164 @ 165 LINES 40 – 50, the Supreme Court held that: The power to re-calling a witness is not limited to the purpose of clearing up ambiguities in the evidence he had already given but that the party recalling him might put to the witness any completely new point which had inadvertently been omitted in his evidence. The case called on by the respondent did not decide that an application for leave to recall a witness who had already testified in a suit cannot be brought where the purpose is to confront the witness with a piece of evidence. The respondent has failed to cite any judicial authority for the submission that an application for recalling a witness can only be brought for the purpose of putting in new evidence. He urged the court to discountenance the respondent’s argument. Whether an application for recalling a witness cannot be brought in respect of a witness called by the opposing party The respondent contends in paragraphs 5.1 to 6.0 of the written address to the effect that an application for recalling a witness cannot be brought in respect of a witness not called by the applicant. However, the respondent did not cite any authority for this submission but made her conclusion on the premise that the cases cited only relate to witnesses called by the applicant and not otherwise. Counsel submitted that this Honourable Court has the power to grant an application for recalling a witness notwithstanding that the witness sought to be recalled was previously called by the respondent. In the Newswatch Comm. Ltd V Atta (2006) 12 NWLR (Pt. 993) 144 SC, the application to recall the Plaintiff’s witness was brought by the defendant’s counsel for the purpose of further cross examination and same was granted. See also ADEKANYE ELEKO V AKIRINIOLA WILLIAM OLOKUNBORO (1978) LPELR-FCA/B/9/78. Counsel further submitted that the ultimate concern of the court is the need to balance the interests of justice between the parties. The respondent has not furnished the injustice in the appellant’s application. That the reply on the case of ELENDU V EKWUOBA (1995) 3 NWLR (PT. 386) PAGE 704 @ 749 PARAS E – F, where the court held that:- The guiding principle is that discretion being judicial must at all time be exercised not only judicially but also judiciously on sufficient materials. Counsel submitted that where the application to recall a witness for further cross-examination will ensure fair hearing opportunity to the parties or afford a party to properly present its case, this Honourable Court ought to exercise its discretion in favour of the applicant. In the case of UKEJE V UKEJE (2001) VOL. 27 WRN PAGE 142 @ 158 – 159 LINES 15 – 5. The issue in the instant case is not that of a power of a court its own volition calling a witness, but rather it is the power of the court permitting one of the parties, who has requested to recall a witness that has already testified before the court to come and adduce further evidence. I am of the view that with respect to this second situation a different consideration applies. In that case the court has right to exercise its discretion to grant the recall of a witness in order to find out where the justice of the case lies. Relying on the above authority he urged this Honourable Court to hold your lordship has the discretion to grant the applicant leave to recall a witness for further cross-examination. He urged the court to discountenance the submissions of the respondent’s counsel. In conclusion counsel urged the court to grant the applicant’s instant application in the interest of justice of this case, in the light of the case Law authorities cited above. Having carefully considered all the processes filed in this case. The issue before the court is:- Whether the court can relief being sought by the 1st defendant/applicant. The relief being sought by the 1st defendant is for the leave of court to recall the 1st claimant (Mrs. Ramatu Umar Bako) for further cross –examination. The reason giving for desiring to recall the 1st claimant is that during the course of cross-examination the 1st witness the 1st defendant inadvertently omitted to confront her with some of the exhibits tendered through DW1, particularly the first warning of 6th November, 2009. The 1st defendant then further submitted that it would assist the court to arrive at the truth of the matter before it. That the court is empowered to grant an application for leave to recall a witness who had already testified in the suit relying on the Order 19 Rule 11 of the Rules of Court. That the court should use its discretion as this is a suitable case for the court to grant an application for a recall of a witness for further evidence, in that all parties should be given fair opportunity not only to be heard but also to present their issues without impediment. In opposing this application the claimant argued that granting the application will be an abuse of court process in that the claimant is not the 1st defendant witness, that she was specifically cross-examined by the defendant on the document Exhibit D21 dated 6th November, 2009 on which basis the claimant is being sought to be recalled. The claimant argued that having been re-examined, discharged and thereafter two other witnesses were examined and she has closed her case it would be unjust to recall her to be cross-examined by the Applicants. Having considered the submissions of counsel, there is no convincing reasons for the applicant at this stage to seek leave to recall the 1st witness (Mrs. Ramatu Bako) after she had already closed her case. Any design that raises doubts as to the good intention of the party seeking the recalled or intended to cause embracement to the witness is unacceptable in exercising the discretion the court must bear in mind that where the blunder which the applicant wishes to amend will do injustice to the claimant the prayer will not granted. It is noteworthy that when the case went on trial and up to the time the claimant closed her case and the applicant opened his defence the court gave parties opportunity to present their matters without any hindrance or interference. The applicant has not been denied of his right to be heard or to present his case. Order 19 R 11 of the Rules of this court relied upon by the applicant deals with power of court to order any person to appear before the court as a witness or to produce any document. The provision is not applicable to the prayer being sought by the applicant. In retrospect, the recall sought by the applicant will occasion mis carriage of justice. This will be an ambush to the claimant to allow the applicant to re-open, cross – examine the claimant afresh. For the reasons given above the applicant application lack merit and is hereby dismissed. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE