JIMA PROPERTIES LTD. vs. STARUCCI INTERIORS LTD. & ANOR.(2022)LCN/16942(CA)
PRINCIPLE:
“…while resolving the issue whether the trial Court’s refusal to allow the appellant cross-examine the author of Exhibit 13, who was available but not called as a witness, amounts to denial of the appellants’ right to fair hearing – I need to point out that it is common ground that in the course of taking the evidence of the DW2, Stella Bassey Udoh, the defendants/respondents sought to tender a document through her, though she was not the maker of the said document. The learned counsel for the plaintiff/appellant objected on the grounds that no foundation was laid for its admissibility through the said DW2 and contrary to Section 83(4) of the Evidence Act. The objection was however, overruled by the learned trial Judge and the document was admitted and marked Exhibit 13.
Subsequently, the appellant applied by way of Motion on Notice for an order of the trial Court for the defendants/respondents to produce the purported maker of Exhibit 13, one Abubakar Sadua as well as an order to recall PW1, Salihu Tanko, for purposes of having both of them cross-examined on the content of the said Exhibit 13. The application was dismissed, hence this interlocutory appeal.
The learned counsel for the appellant canvassed strenuously that the dismissal of the application to recall the PW1 and also for the respondents to call Alhaji Abubakar Sadua for them to be cross-examined on the content of Exhibit 13 amounted to a violation of the appellant’s right to fair hearing as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
Admittedly, the trite and unassailable position of the law is that no one should be denied his constitutionally guaranteed right to fair hearing. There has been stern warning by the apex Court in a plethora of authorities including Nwabueze vs. The People of Lagos State (2018)11 NWLR Pt. 1630, Pg. 201 at 214, Paras. E-G to the effect that: “Breach of a party’s constitutionally guaranteed right to fair hearing, where established, affects the entire proceedings thereby rendering the decision of the Court null and void. Cases attesting to this principle are legion. In FRN vs. Akubueze (2010) LPELR-1272 (SC), (2010) 17 NWLR Pt. 1223, Pg. 525 at 544, Paras. E-F this Court restated the principle thus: “It is the law that once it is duly established that the right of fair hearing as entrenched under Section 33 of the Constitution has been breached in judicial proceeding, its breach vitiates the entire proceedings. Therefore, when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal…”
The appellant sought for an order to compel the respondents to invite Alhaji Abubakar Sadua, who was not a witness, to come on board for him to be cross-examined on Exhibit 13. This Court in the case of Etisi vs. State (2018) All FWLR Pt. 920, Pg. 33, 70-71, per Barka, JCA, enunciated the position of the law thus: “The law does not impose a duty to call all the persons listed or not listed as witnesses,…The discretion of the number of witnesses to be called is entirely that of the prosecution.” (Underlining mine for emphasis).
The apex Court affirmed this principle in the case of Galadima vs. State All FWLR Pt. 944, Pg.663 at 698, Para. B, when it stated inter alia: “The defence is not to determine the number of witnesses the prosecution will call to testify in Court.”
Furthermore, in MTN Communications Ltd. vs. Amadi (2013) All FWLR Pt. 670, Pg. 1329 at 1348, Paras. C-D, the Court held that: “A party is not under any compulsion or obligation to call any particular witness to prove his case. This accord with the age-old law that it is not necessary in the prosecution of a case, in order to discharge the onus of proof lying upon a party to call every available piece of evidence. It is enough if evidence called is sufficient to discharge the onus.”
In Ajibade vs. State (2012) All FWLR Pt. 610, Pg. 1381 at 1398, Para. C, Alagoa, JCA, (as he then was) held that: “The defence does not tell the prosecution who to field as witnesses in establishing its case.”
All the foregoing authorities and many more, show that it is within the absolute discretion of the party such as the respondents herein to field or not to field any witness at all. The adverse party is not in a position to force or compel or dictate to the other party who to bring to Court to come and aid the said adverse party. Where the appellant in the instant case considered the evidence of the said Alhaji Abubakar Sadua important, the said appellant is at liberty to apply to the trial Court for an order of subpoena ad testificandum as the case may be as opposed to seeking a compelling order of the Court to issue on the respondents to produce him in Court. I have not found the respondents to be under any legal obligation to produce Alhaji Abubakar Sadua or any person at all for purposes of affording the appellant the opportunity to cross-examine such person.
Regarding the application for the respondents to recall the PW1 so that the appellant can cross-examine him on the content of Exhibit 13 – I view that to be a tall order for the trial Court to make, more so when Exhibit 13 was not being tendered through the said PW1. As it stands, it is the DW2 through who Exhibit 13 was admitted in evidence at the trial Court that is in a position to answer questions by way of cross-examination on the said exhibit. The learned trial Court in the event was right in dismissing the application, as the appellant’s right to fair hearing in the circumstances was not in any way or form violated. Issue 1 (one) is resolved in favour of the respondents and against the appellant.” Per JOMBO-OFO, JCA.