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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 11th June, 2014 SUIT NO: NICN/ABJ/39/2013 Between: Emmanuel Edoghaye Eze Claimant AND The Federal Polytechnic Mubi Defendant REPRESENTATION Parties absent; Olawale Mohammed (Mrs). For the claimant; T.S. Ibanga for the Defendant RULING At the hearing of the substantive suit on the 19th of May 2014, counsel to the claimant E.O. Olawale Mohammed sought to tender the witness statement on oath of the only claimant witness in this case as an exhibit which was objected to by the defence counsel in the person of Mr. T.S Ibanga on the ground that the witness who had appeared in this suit as counsel to the claimant cannot testify for the claimant and as such he is not a competent witness. Ibanga Esq. referred the court to the record of this court particularly the proceedings of the 18th of February 2014 and the case of Daniel Garan Vs. Staff Olomu 2013 4 SCNT 47 at P. 42. Counsel also buttress his argument by drawing the courts attention to paragraph 11 of the claimants statement of facts. He urged the court to hold that the witness, Patrick Iyaji Ojeka, a legal practitioner in the law firm of Tyoka Tyoke and Co, solicitor to the claimant in this suit is not a competent witness for the purpose of prosecution of this matter in court. In her response, the claimant counsel Olawale –Mohammed Mrs. submitted that the witness and her humble self are from the same law firm or chambers. She posited that the claimant in this suit who is ordinarily resident outside the shores of this country makes it expedient for the witness to testify on his behalf. Counsel cited the provisions of section 115 of the, 2011 Evidence Act, and the deposition in paragraph 11 of the claimants statement of fact and urge the court to invoke order 5 rules 3 of the rules of this court to depart from the court rules and allow the testimony of the witness by overruling the defendants objection. I have carefully considered the arguments of the respective counsel in this matter. The critical question here is to determine the circumstance under which a counsel in a case can be permitted to shuttle between the bar and the witness box in a suit in which he is the sole witness. In the case of Garan Vs. Olomu cited by the objector, Justice W.S. N Onnoghen of the Supreme Court said: “ though it is contrary to the practice of trial courts and in fact a fundamental irregularity, for counsel to appear both as counsel and a witness in the same case particularly where the evidence he gives is so material that it forms the basis of the decision of the trial court on the matter, the said principle is not applicable to the facts of this case, where the document which counsel tendered in evidence from the witness box as PW6 was already in evidence and tendered by the maker of document himself as exhibit A” The evidence sought to be tendered in this suit has not been tendered before by anybody neither has the claimant himself testified in this case to bring this case within the exception created by this authority. A Perusal of the record of this case shows that the claimant witness, Barrister Patrick Iyaji Ojeka is the sole witness in this matter which shows that his testimony will be so material that it will invariably form the basis of the decision of the court on this matter. I therefore consider it a fundamental issue to the just decision of this case. In another context, the claimant in this case who is said to be outside the shores of this country did not sue in a representative capacity by donating a power of attorney to the sole witness to prosecute his case on his behalf. The defence counsel referred the court to paragraph 11 of the witness statement of facts of the claimant and section 115 of the evidence Act ; I am afraid, section 115 of the Evidence Act 2011 has not help this matter in contention. The claimant witness claims in paragraphs 1,2,3 and 4 of his witness statement on oath as follows; (1) That I am a legal practitioner in the law firm of IyoKa Iyoke and Co. solicitor to the plaintiff in this suit. (2) That my firm has the plaintiff’s Instruction to act for him in respect of this action (3) That by Sundry discussions and documents, the plaintiff has obliged me comprehensive brief with all the facts necessary to testify and effectually present his cause in this matter. (4) That by virtue of my said position I am conversant with the facts herein deposed. The witness, in the document being sought to be tendered gave a direct evidence of the claimants relationship and travails with the defendant without complying with section 115 (1) (3) and (4) of the Evidence Act which says: 115 (1) “every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true” (3) “When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his own personal knowledge, he shall Set forth explicitly the facts and circumstances forming the ground of his belief” (4) “When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information.” There is nowhere in the document sought to be tendered where the facts and circumstances forming the grounds of Mr Ojeka’s belief are stated explicitly even though he claims to have got the information from claimant. Moreover, the witness did not give the name of his informant nor his reasonable particulars neither did he also give the time, place and circumstances of the information and its source of which he claims to act as proxy or attorney. In this circumstance, I cannot see the reason to depart from order 5(3) of the rules of this court as doing so will amount to judicial rascality or judicial impetinence occasion by wrong exercise of discretion. Furthermore, by the provision of section 192 of the Evidence Act 2011, a solicitor needs express consent of his client before making any disclosure in respect of any communication made to him in the course and for the purpose of his employment as a Legal Practitioner. This express consent is lacking in this case as this suit is not instituted in a representative capacity. Moreover, it is against the rule of professional etiquette and common sense for a counsel to testify in the case in which he appears as a legal practitioner. See the cases of Elabanjo Vs Tijani (1986) 5 NWLR 982; Obadara and Others Vs The President Ibadan West District Council Grade B Customary Court 1965 NWLR 39. From the totality of what I have said so far in this ruling including the reasonings and conclusions, I hold that Mr. Patrick Iyayi Ojeka is not a competent witness in this suit; Consequently the witness statement on oath sworn to at the registry of this court on the 25th of February 2013 is hereby rejected in Evidence and marked accordingly. The objection of the defence counsel is hereby sustained. ----------------------------- Hon. Justice P.O Lifu JP. Judge