OGBODU V. ODOGHA & ANOR

• Pages: 172-175

172

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

OGBODU V. ODOGHA & ANOR

5

OGBEREJEKO OGBODU

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APPELLANT

V.

ERIYOTA ODOGHA AND ANOTHER

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RESPONDENTS

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10

SUIT NO. SC 14/1966

SUPREME COURT OF NIGERIA

BRETT,

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Ag.C.J.N.

COKER,

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J.S.C.

LEWIS,

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J.S.C.

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15

19th May, 1967

Civil Action - Practice and Procedure - Recall of witnesses - Discretion of judge

- What stage exercisable - Judge at conclusion of proceedings ordering plaintiffs

surveyor to prepare composite plan to clarify evidence.

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ISSUE:

1. Whether a judge has an unfettered discretion to call or recall a witness in civil

proceedings.

FACTS:

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The appellant, the defendant in the court below, was sued by the plaintiffs for

trespass on a portion of their land. The defendant, though not denying entry, al-

leged that the land was part of his family land. The court held that there had in-

deed been trespass and awarded damages and an injunction against him.

At the trial, each side had called witnesses and tendered a plan. After final ad-

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dresses of counsel, the trial judge, in order to clarify some confusion arising from

the evidence and the two plans about the exact location of the land, ordered the

plaintiffs' surveyor to prepare a composite plan and was cross- examined on it

by counsel to the defendant. The plan merely resolved the confusion and re-

flected only that which was implicit in the evidence already before the court.

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On appeal the defendant argued that the trial judge erred in recalling the sur-

veyor to tender a new plan at that stage of the proceedings.

HELD:

In dismissing the appeal:

A judge does not have an unfettered discretion to call or recall a witness in civil

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proceedings, but when in the interests of justice he is obliged to recall such a wit-

ness in order to clarify a point which has arisen on the evidence and the implica-

tions of which are within the knowledge of the parties, he may do so at any stage

of the proceedings.

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CASE REFERRED TO IN JUDGMENT:

1.

Bigsby v. Dickinson

(1876) 4 Ch. 24, 28; 46

L.J.

Ch. 280 35 L.T. 679.

E.U. Bazunu

for the

appellant.

F.O. Awogu

for the respondents.

COKER, J.S.C. (giving the reasons for the decision of the Court): The appellant

who was the defendant in an action in the High Court, Warri, Mid-West Nigeria has

appealed against the judgment of that Court awardilig against him in favour of the