ELABANJO V. TIJANI
| Pages | 1367-1388 |
ELABANJO V. TIJANI
1367
however conceded that though there was no appeal on the point; yet still the issue
of the eastern and western boundaries featured rather prominently in the judgment
of the Court of Appeal. Mr. Ajayi, S.A.N. for the applicants emphasised that if the
Court of Appeal even
suo motu
makes a determination against a party, that party
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is bound to appeal against such a determination. The fact that there was no ap-
peal on that issue will further strengthen the position of the party aggrieved.
I
agree.
But in this case, it is not correct to say that no ground of appeal was filed in the
court below attacking the findings as to boundaries - eastern, western and south-
ern boundaries. Ground 3 at p.207 of the record of proceedings clearly appealed
10
against and put in issue the validity or otherwise of the Customary Court's finding
as to these boundaries. This ground was fully argued before the Court of Appeal.
That court at p.221 held that:-
"The plaintiffs did not prove the Southern boundary of the area of land which
15
the learned appellate Judge declared in their favour. The Eastern boundary of
the land is admittedly not proved by the witness No.3 called by the Plaintiffs to
testify on it".
With the above finding by the Court of Appeal the issue of the boundaries of
20
the land in dispute becomes at large, and issue which the present appellants/ap-
plicants can rightly take up in this court. I agree with my learned brother Kawu,
J.S.C. that Professor Kasunmu's "objection lacks substance" and should be over-
ruled and I hereby over-rule same. For the reasons given above and for the ful-
ler reasons in the lead ruling of my learned brother Kawu, J.S.C. with which I am
25
in complete agreement, and which I now adopt as mine, I will grant the appel-
lants/applicants leave to file and argue all their proposed additional grounds of
appeal. There will be costs to the applicants which I assess at N25.00.
Application allowed.
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ELABANJO V. TIJANI
35
J. ELABANJO
V
ALHAJA A.O. TIJANI
APPELLANT
RESPONDENT
SUIT NO. SC 85/1985
40
SUPREME COURT OF NIGERIA
ANIAGOLU,
J.S.C.
COKER,
J.S.C.
KARIBI-WHYTE,
J.S.C.
OPUTA,
J.S.C.
45
BELGORE,
J.S.C.
12th December, 1986
Land Law - Trespass - Plaintiff relying on purchase receipt and conveyance of
land in dispute from defendant, an illiterate - Attempt to deny knowledge
50
of content - Finding that defendant lied.
1368
NIGERIAN SUPREME COURT CASES
[1986] 2 N.S.C.C.
Evidence - Admissibility - Evidence by counsel in case conducted by him -
Distinction between conpetence of counsel to testify and undesirability of his
doing so - Evidence of counsel expunged from record on ground that counsel
incompetent to testify - Effect.
Professional Ethics - Legal Practitioner - Prior withdrawal as counsel not a legal
5
requirement, but desirable as matter of practice and professional ethics if not
adverse to client's interests - Counsel testifying for plaintiff without first
formally withdrawing from case but ceasing thereafter to take part in conduct
of case - Effect - Import of order 4 of Lagos State High Court (Civil
Procedure) Rules.
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ISSUES:
1.
Whether counsel should give evidence in a case in which he has acted or is
still acting.
2.
Whether counsel handling a case is competent to testify on behalf of his client.
15
3.
What is the import of Order 4 of the High Court of Lagos State (Civil Procedure)
Rules? For whose benefit does the rule exist?
FACTS:
The defendant sold 10 acres of land to the plaintiff. The plaintiff went into pos-
session and 10 years later the defendant disturbed his possession by going on the
20
land and damaging the pillars and palm trees on it, as a result of which he instituted
an action against her. The plaintiff relied on a purchase receipt and a conveyance
of the land in dispute from the defendant, an illiterate. The defendant denied knowl-
edge of the content of the documents, but evidence was led to establish that the
receipt was read over and interpreted to her before she signed it, whilst the con-
25
veyance was executed by her before a magistrate. The trial judge thus awarded
the plaintiff damages for trespass and granted a restraining injunction against the
defendant.
The defendant appealed to the Court of Appeal which reversed the decision of
the trial court on the ground that counsel who initiated the proceedings in respect
30
of the plaintiff's claim turned a witness and gave evidence for his client. The plain-
tiff further appealed to the Supreme Court.
HELD:
1.
Counsel for the appellant, who initiated the proceedings of the case, was in law
a competent witness (according to s.154 of Evidence Act) and thus his evidence
35
was admissible. It would be wrong in law to expunge admissible evidence (his
evidence) from the record.
2.
It is undesirable for any counsel who gives evidence for his client to continue
to appear and conduct the same case thereafter. This is however a rule of
practice and not one of law.
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3.
Counsel for the appellant was compelled, due to the circumstances of this case,
to give evidence. He however immediately applied by motion to be dismissed
as counsel to the plaintiff and after giving evidence took no further part in the
case as counsel for the plaintiff. This was perfectly legal, perfectly ethical and
professionally permissible.
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4.
Order 4 of the High Court of Lagos State (Civil Procedure) Rules which set out
the procedure for the change of legal practitioner in a case exists to protect the
interest of the lay client. It was thus not open to the respondent to make an
issue of this, since the appellant himself had not complained that his counsel
deserted him in the middle of the case.
50
5.
The Court of Appeal was wrong to have reversed the decision of the trial judge
based on his hearing and seeing the demeanour of the witnesses because of
the undesirability of counsel for the appellant giving evidence for his client.
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