➥ CASE SUMMARY OF:
J. Elabanjo V. Alhaja A. O. Tijani (SC.85/1985, 12 Dec 1986)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Counsel as witness for client;
Judgement against weight of evidence.
➥ CASE FACT/HISTORY
In a lead judgment delivered by Uthman Mohammed, JCA to which Nnaemeka-Agu and Kutigi, JJCA concurred, the Court of Appeal set aside the judgment of Oshodi, J. of the Lagos High Court awarding the Plaintiff (now Appellant) ₦100.00 damages for trespass and an injunction “restraining the defendant, her servants/agents from further acts of trespass on the land in dispute.”
➥ ISSUE(S)
I. That the decision is against the weight of evidence.
II. Was Mr. Otukoya, who acted as counsel for the Plaintiff before the actual hearing hut did not represent the Plaintiff at the hearing, a competent witness for the Plaintiff?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[IN EVIDENCE, THE APPELLATE COURT SHOULD NOT SUBSTITUTE HIS VIEWS FOR THAT OF THE TRIAL COURT
‘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 are no need citing authorities for the above propositions for their name is legion for they are many.’]
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[‘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 EX.A and EX.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 TRIAL JUDGE WAS SATISFIED THAT MR. OTUKOYA WAS A COMPETENT WITNESS
‘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 overruling 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. Burshell 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.’
MR. OTUKOYA NEVER AGAIN APPEARED AS COUNSEL FOR THE PLAINTIFF
‘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.’
‘In R v. Secretary of States for India-in-Council, Ex parte Ezekiel the observations 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.’
ASSUMING, THE CLIENT SHOULD NOT SUFFER FOR COUNSEL BREACH OF ETHICAL CODE
‘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 Wigmore in his treatise I mentioned earlier on in this judgment becomes 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.’]
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✓ DECISION:
‘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 ₦300,00 and also costs in the court below assessed at ₦400,00.’
➥ FURTHER DICTA:
⦿ WHETHER COUNSEL CAN GIVE EVIDENCE FOR A WITNESS IS ONE THING, ETHICAL DUTY NOT TO TESTIFY IS ANOTHER THING
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, JCA 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 etiquettes 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. — Oputa JSC.
⦿ COUNSEL CAN TESTIFY AS WITNESS WHERE NOT APPEARING FOR CLIENT
Gachi and 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.” (italics 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 appeared 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. — Oputa JSC.
⦿ THE RATIONALE BEHIND COUNSEL NOT BEING WITNESS FOR CLIENT
The rule of practice in my opinion is designed to insulate counsel from the attending prejudices of acting also as a witness in the same case. Our jurisprudence has also 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 other ground than that it was tendered by Counsel to the party offering such evidence. — Karibe-Whyte JSC.
⦿ THE LEGAL POSITION OF COUNSEL BEING WITNESS FOR HIS CLIENT
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 designed to ensure a proper administration of justice. There is no irregularity in Counsel not observing the 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 the justice that will he served by such a withdrawal. Where the interest of his client will be adversely affected by his withdrawal, it will not offend against any rules of practice if he continued. — Karibe-Whyte JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Oputa, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ajayi SAN.
⦿ FOR THE RESPONDENT(S)
Mr. Landner.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
