1. Introduction
On 5th February, 2025, the National Industrial Court of Nigeria ("NICN") delivered Judgment in the case of Mrs. Elizabeth Omowunmi Dada v. Nigerian Electricity Supply Corporation (Nigeria) Limited ("Dada's Case").1 The case centered on the Claimant's entitlement to Long Service Gratuity and the Defendant's rebuttal of such an entitlement. After the trial was concluded, a variation occurred in the composition of the Court due to the elevation of the trial Judge, Honourable Justice P. A. Bassi, J. (as he then was), to the Court of Appeal. The new trial Judge, who did not see and hear any of the witnesses, relied on evidence in the previous proceedings conducted before Honourable Justice P. A. Bassi, J. (as he then was) to reach a final decision.
This paper addresses multiple issues arising from the decision of the new trial Judge in Dada's Case to use evidence of witnesses who did not testify before him to deliver the Judgment. Consequently, the decision in Dada's Case will be legally screened for compliance with the mandatory pre-conditions for the reception and use of previous evidence, as provided for in sections 46(1) and 39 of the Evidence Act, 2011 (as amended). Additionally, this paper will address the impact of the procedure adopted in Dada's Case on fair hearing; the limited purpose in which evidence in the earlier proceedings could be used; and the effect of the failure of the new trial Judge to hear all witnesses afresh in the light of the variation in the composition of the Court.
2. Elizabeth Omowunmi Dada v. Nigerian Electricity Supply Corp. (Nig.) Limited
The Claimant began her employment with the Defendant on 5th October, 2005, as an Administrative and Personnel Manager. Initially hired for a 12-month term, her employment was subject to renewal based on satisfactory performance. Her contract included a clause for a "long service gratuity" after five years of continuous service. In 2007, the Defendant's management decided to implement a uniform pension scheme according to the Pension Reform Act, transitioning all employees, including the Claimant, to this scheme. Contributions to the Claimant's Retirement Savings Account under the pension scheme ceased in 2010 when she reached the retirement age of 55. Her employment was renewed multiple times until it was terminated in 2020. Following the termination, the Claimant requested her Long Service Gratuity as outlined in her original and subsequent employment renewal letters. The Defendant denied her request, stating that her entitlement to the gratuity was nullified due to her migration to the Uniform Pension Scheme and the contributions she had received in her Retirement Savings Account. After unsuccessful attempts to resolve the matter, the Claimant approached the NICN to seek legal redress.
The Claimant opened her case on 16th February, 2022 before Honourable Justice P. A. Bassi, J. (as he then was) where she testified as C. W. 1 and tendered 13 documents. The documents were admitted by the Court and marked as Exhibits C1 to C13. Following her testimony, she was cross-examined by the Defendant's Counsel and she concluded her case on 15th June, 2022. On 3rd November, 2022, the Defendant opened its case with Abraham Adama testifying as D. W. 1. The D. W. 1 tendered 4 documents and they were admitted by the Court and marked as Exhibits D1 to D4. Thereafter, the Claimant's Counsel cross-examined him. On 5th May, 2023, David Nungi was called in on a subpoena. He tendered Exhibit DD1 and the Defendant concluded its case on that same day.
Not too long after that, Honourable Justice P. A. Bassi, J. (as he then was), was elevated to the Court of Appeal and Honourable Justice I. S. Galadima, J., took over the matter. With the consent of the Defendant, the Claimant compiled and submitted Exhibit CTC 1, which is a Certified True Copy ("CTC") of the court's proceedings recorded before the previous trial Judge.2 Surprisingly, this step was taken even when all the witnesses were alive and no explanation was proffered on why they could not be called afresh as witnesses. Relying on the CTC of the trial records to deliver its judgment, the new trial Judge, Honourable Justice I. S. Galadima, J., prefatorily held as follows:
It is important to note that the trial proceedings, from the start to the finish, were presided over by the previous judge until his elevation to the Court of Appeal. As a result, the parties' counsel agreed to compile a Certified True Copy (CTC) of the trial records to allow them to continue from where the previous judge left off, in accordance with the court's rules permitting such a procedure. Consequently, the final written submissions from the parties' counsel were presented and adopted before this court, ... after which this judgment was delivered today.3 (Emphasis added).
3. Commentary
Without prevarication, it is important to mention that the NICN in Dada's Case drew strength from the provisions of Order 40 Rule 21 and Order 62 Rule 10(5) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 ("NICN Rules") which permits the use of previous evidence taken at the trial of a matter in any subsequent proceedings in the same matter. Order 40 Rule 21 of the NICN Rules directs that all evidence taken at the hearing or trial of any cause or matter may be used in "any subsequent proceedings in the same cause or matter, subject to the provisions of Section 46 of the Evidence Act 2011."4 Order 62 Rule 10(5) of the NICN Rules provides that "the parties in agreement may apply to the Judge taking over the matter for adoption of the proceedings and continue with the matter where the transferred Judge stopped."5
A dispassionate examination of the provisions of Order 40 Rule 21 and Order 62 Rule 10(5) of the NICN Rules reveals that these provisions were introduced to cure the mischief of commencing trials afresh and to ameliorate the inconvenience, hardships and attendant delays that populate the bastion of justice in de novo trials. As good intentioned as the provisions of Order 40 Rule 21 and Order 62 Rule 10(5) of the NICN Rules are, the length and breadth of their applicability and effectiveness is delimited and controlled by the dictates, operation, legal policy thrust and judicial interpretation of sections 46(1) and 39 of the Evidence Act, 2011.6 This is so because evidence and issues relating to it are not procedural issues for Rules of Court7 but issues exclusively within the legislative competence of the National Assembly8 who in this regard enacted the Evidence Act, 2011 as a special legislation. In addressing this point in the consimilar case of Usang & Ors. v. Okia & Anor.,9 the Court of Appeal authenticated the foregoing position and dispelled all doubts in the following words:
All the challenges manifesting in this case are from the misconception of the Rules of the Court below. The Rule is as in Order 31 Rule 19 of the High Court of Cross River State (Civil Procedure) Rules, 2008. Order 31 Rule 19 provides:
"Subject to the provision of Section 34 of the Evidence Act, all evidence taken at the hearing or trial of any cause or matter, may be used in any subsequent proceedings in the same cause or matter without the need for the trial to be commenced de novo."
This Rule of the lower Court cannot stand alone, it is subjected to the provision of Section 34 of the then Evidence Act. Section 34 of the old Evidence Act is now Section 46 of the Evidence Act, 2011. .... From the community reading of the Rules and the Law connected with this issue, it is necessary to emphasize that the provision of Order 31 Rule 19 of the High Court (Civil Procedures [sic]) Cross River State is not an off the shelf kind of provision or ready-made device where one can plug and play. It is a provision that must be applied in sync with the Evidence Act. To my mind, that provision of the rules of the Court below as earlier reproduced is not meant for the Court to depart from the established practice protocol of starting cases inherited by any trial Judge de novo. ....
In the instant case, Order 31 Rule 19 of the Cross River High Court (Civil Procedure) Rules, 2008 gives discretion to the Court to use evidence taken previously in the case or other proceedings subject to the provision of Section 46 of the extant Evidence Act, 2011. Evidence Act 2011 is a principal legislation and was made by the National Assembly. This Act has specified conditions to be present before using evidence previously taken. The law is careful about this subject because a trial Court, it is trite, is the Court that has the primary duty of evaluation of evidence and ascription of probative value thereto.10 (Emphasis added)
On this basis, it is the deferential view of this author that the procedure adopted by the new trial Judge in Dada's Case, which includes the use of a CTC of the trial records conducted by the previous Judge; the filing of Final Written Addresses to argue the imported evidence; and the delivery of Judgment based on the imported evidence, is out of harmony with statutes and controlling judicial precedents in Nigeria and is, unfortunately, incorrect. To wholly critique the said decision, this commentary will be segmented into five subsets, namely:
- Non-compliance with the mandatory pre-conditions in sections 46(1) and 39 of the Evidence Act 2011;
- Limited bandwidth of this procedure;
- Abrogation of the right to Fair Hearing;
- Non-compliance with the rule that evidence in earlier proceedings can only be used to discredit a witness in cross examination; and
- Effects of the variation in the composition of the Court and the failure of the new trial Judge to hear all witnesses.
3.1 Non-compliance with the Mandatory Pre-conditions in sections 46(1) and 39 of the Evidence Act, 2011
The NICN in Dada's Case should have resorted to the pre-conditions and attendant procedure set out in sections 46(1) and 39 of the Evidence Act, 2011 before relying on the CTC of the trial records conducted by the previous Judge and compiled by the parties.11 The fact that the parties consented to the wholesale adoption and importation of evidence in the previous proceedings and also participated in the skewed procedure did not remedy or regularize the situation. This is because section 46(1) of the Evidence Act, 2011 is a mandatory statutory provision and its prescriptions cannot be waived by consent.12
It is an essential and non-negotiable legal precept under Nigerian law that a matter that is taken over by a new trial Judge must be heard afresh or de novo by such a new trial Judge.13 To this end, the proper procedure for any incoming trial Judge, which procedure should have been religiously observed in Dada's Case, is set out below:
3.1.1 The incoming trial Judge must order that Hearing Notice be issued to the previous witnesses for their fresh examination and cross examination.14
3.1.2 After the Hearing Notice is issued and the witness who previously testified fails to respond to the fresh Hearing Notice by being present in court, the Court will only admit and make use of such evidence as the truth of the fact which it states if any of the following conditions are established by the party seeking to call such a witness:
- The fact that the witness cannot be called because such a witness is dead;15
- The fact that the witness cannot be called because such a witness cannot be found;
- The fact that the witness cannot be called because such a witness has become incapable of giving evidence;
- The fact that the witness cannot be called because his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable;16 or
- The fact that the witness cannot be called because such a witness is kept out of the way by the adverse party.17
3.1.3 After any of the foregoing requirements are met by the party seeking to call such a witness,18 the Court has the bounden duty19 to satisfy itself of the following conjunctive points20 before proceeding to admit and use such evidence:
- That the proceeding was between the same parties21 or their representatives in interest;22
- That the adverse party in the first proceeding had the right and opportunity to cross-examine the witness;23 and
- That the questions in issue were substantially the same in the first as in the second proceeding.24
Instructively, it is not enough for a party invoking section 46(1) of the Evidence Act, 2011 to allege, without proof, that the previous witness(es) are "not reachable". Such a party must establish the efforts he made to reach those previous witnesses before he could be believed that those witnesses are not reachable.25 This detailed legal procedure was endorsed by the Court of Appeal in the case of Nze Ben Osuji v. Michael Osuji,26 and the relevant reasoning of the Court is reproduced in extenso:
Undoubtedly, the proceedings in question, "Exhibit JW1", was a proceeding between the same parties and their representatives in interest. The adverse party in the first proceeding had the right and opportunity to Cross-examination. Also, the question in issue was substantially the same as in the second proceeding. However, the admissibility of the proceeding and the utilization of same is subject to the satisfaction of any of the reasons or conditions specified in Section 39 of the Evidence Act which states:
"Statement, whether written or oral of facts, in issue or relevant facts made by a person- (a) Who is dead; (b) Who cannot be found (c) Who has become incapable of giving evidence, or (d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court are unreasonable are admissible under Section 40 to 50"
It is undoubted that subsections (a) (b) (c) and (d) of Section 39 were not satisfied for the admissibility of the proceeding - "Exhibit J" by Hon. Justice Anunihu for the purpose of writing judgment only. In a situation where proceedings passed from one Judge to the other for the purpose of hearing to judgment, previous witnesses need be issued with hearing notices, examined and cross-examined in the later proceeding. It is after the stage had been set for fresh hearing, and any of the witnesses previously called failed to respond to a fresh hearing notice, that Section 46(1) of the Evidence Act could be invoked upon the satisfaction of the reasons stated in Section 39(a),(b),(c),(d).27 (Emphasis added)
The above decision is intrinsically convincing and in tandem with the letters and spirit of sections 46(1) and 39 of the Evidence Act, 2011. The NICN in Dada's Case departed from this established procedure and, regrettably, made progress in the wrong direction.
3.2 Limited Bandwidth of this Procedure
As a free-flowing caveat, it is necessary to mention that the legal procedure discussed above is not a blank cheque or universal license for a new trial Judge and/or litigating parties to import and adopt the evidence of all witnesses who testified before a previous trial Judge. The procedure enacted in sections 46(1) and 39 of the Evidence Act, 2011 and popularized in Order 40 Rule 21 and Order 62 Rule 10(5) of the NICN Rules can, in deserving cases, only be used to fill in the ineluctable absence of one or two witnesses who had earlier testified and were cross examined, so that such evidence may be made available to credit or discredit other evidence that may be recorded in the fresh proceeding. Nothing more; nothing less!
Any attempt, as was done in Dada's Case, to expand the limited bandwidth of this procedure to accommodate or embrace all witnesses who previously testified before the outgone trial Judge renders such a proceeding a mistrial. In the celebrated case of Francis Shanu & Anor. v. Afribank Nigeria PLC,28 the Supreme Court, while commenting on section 34(1) of the repealed Evidence Act which is in pari materia with section 46(1) of the Evidence Act, 2011, sounded this note of warning:
I do not understand the purpose of Section 34(1) of the Evidence Act to be to permit of a package of the evidence given by all the witnesses or a good number of them in a previous proceeding on obviously contentious issues and of conflicting nature of evidence to be placed before another Judge for a resolution and judgment. Section 34(1) is not to be used to avoid hearing de novo. It is, in my view, to fill in an unfortunate or unavoidable absence of a witness or two, as the case may be, who had earlier given evidence and were cross examined, so that such evidence may be made available to complement other evidence that may be recorded in a later proceeding. It would be improper to put the integrity of a proper hearing of a case by a trial Judge in doubt by flooding it with evidence of witnesses in an earlier proceeding which would place the Judge at a disadvantage as to who and what to believe because of the nature of the evidence taken by another Judge viva voce.29 (Emphasis added)
3.3 Abrogation of the Right to Fair Hearing
It is the view of this author that the wholesale importation and exclusive reliance by the new trial Judge on the recorded testimony of all witnesses who testified before the previous trial Judge in Dada's Case is a substantial breach of all the tenets of adjudication. The Judgment in Dada's Case was written, signed and delivered by a judge who did not see and hear any of the witnesses testify. This objectionable reality renders any decision reached from such an effort as a charade and/or a mockery of justice. Significantly, it raises concerns about fair hearing and renders such a judicial exercise "unlawful and incompetent"30 because the defect is extrinsic to the proceedings.31
Put differently, a judgment written, signed and delivered by a judge who did not see and hear the witnesses testify is a "constitutional disaster of monumental dimensions"32 and a violation of the constitutional right to fair hearing preserved by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In elucidating this reasoning in the consimilar case of Bassey Edibi v. The State,33 the Court of Appeal remarked as follows:
A judge of a trial Court cannot write a judgment based on the recorded evidence of witnesses in a case he did not try from the beginning to the end. In my humble view, the ends of justice cannot be met by reliance exclusively on the recorded testimony in the trial Court. The witness' demeanour is material and a trial judge needs to interpret the unarticulated response or body language of the witness, an aid available only to the judge who sees and hears the witness give evidence. The entire proceedings in this case is a constitutional disaster of monumental dimensions. Obasse, J, tried the case and adjourned same for judgment. The trial was aborted as the judgment was not delivered and no reason was given for the default. Ilok, J. did not try the case. He did not hear the prosecution, nor did he hear the appellant in his defence, yet His Lordship came up with a judgment from the blues as it were. The judgment so delivered is a violation of the appellant's constitutional right to a fair hearing guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It is a rape of the rules of natural justice. I declare that a judgment, as in this case, written and signed and delivered by a judge who did not see and hear the witnesses testify is a nullity.34 (Emphasis added).
Above all, it is the view of this author that it will be deemed a "mistrial" for one judge to receive evidence and another to write judgment on it. This reasoning is predicated on the legal foundation that a judge who did not conduct the entire trial in a case cannot write and/or deliver judgment in the case.35 In the case of United Bank for Africa PLC v. Ubi Angela Egwu,36 all the witnesses were taken by Honourable Justice Ebuta, J., while the previous proceedings and Final Written Addresses were adopted before another Judge, Honourable Justice Eneji, J., who proceeded to deliver judgment in favour of the Respondent. On appeal, the Court of Appeal held as follows:
A case with facts similar to the present situation is EGHOBAMIEN VS FEDERAL MORTGAGE BANK OF NIGERIA (2002) 11NSCQLR 183. Section 34 of the defunct Evidence Act interpreted in the said case is impari materia with Section 46 of the Evidence Act, 2011.... The trial in that case had been concluded by Obi J. then of the Bendel State High Court but before giving judgment was transferred to the then newly created Delta State. The suit was transferred to Edokpayi J. before whom counsel for the two sides by consent adopted the previous proceedings and proceeded to their final addresses. The Judgment delivered by Edokpayi J. was appealed against and set aside by the Appellate Courts in unison. Delivering the leading judgment in that case Uthman Mohamed, JSC stated at page 191 as follows: "It is palpably wrong to write a judgment on the evidence recorded by another judge. A trial is a judicial examination of evidence according to the law of the land, given before the Court after hearing parties and their witnesses. A trial must be conducted by the judge himself and at the end of the hearing he will write a judgment which is the authentic decision based on the evidence he received and recorded. It is a mistrial for one judge to receive evidence and another to write judgment on it." .... I agree with the appellant's counsel that the trial in this case is fundamentally flawed and that the judgment of the learned trial judge is consequently a nullity.37 (Emphasis added)
3.4 Non-Compliance with the Rule that Evidence in Earlier Proceedings can only be used to Discredit a Witness in Cross Examination
Again, the NICN in Dada's Case made progress in the wrong direction when it treated the evidence given by the witnesses in the previous proceedings as one of truth in the subsequent proceedings, in which they did not give evidence; accorded probative value to it; and relied on it to arrive at its final decision in the case. It has been decided in a sea of judicial authorities that evidence admitted under section 46(1) of the Evidence Act, 2011 is only relevant in examining the credibility of a witness in the subsequent proceedings.38 It follows therefore, that the best use that could be made of such evidence is for "cross examination as to credit of such a person or persons called to testify in the latter case"39 and not "res ipso evidence in the fresh proceeding."40
In the case of Dada v. Bankole,41 the Supreme Court rejected the procedure adopted by the trial Court in treating the evidence given by a witness in previous proceedings as the truth, in the following words:
Now Exhibit 'A' in the current proceeding was tendered by consent. There was therefore no opportunity of testing if its reception in evidence complied with the requirements under section 34(1) above. It is settled law however that such evidence may be used for the purpose of cross-examining as to credit.... It is wrong and improper to treat the evidence given by a witness in a previous proceeding as one of truth in a subsequent or later proceeding, in which he has not given evidence.[42] (Emphasis added)
3.5 Effects of the Variation in the Composition of the Court and the Failure of the New Trial Judge to Hear all Witnesses
In Dada's Case, the composition of the Court changed after the trial was concluded and the parties neglected to call all their witnesses to testify afresh before the new trial Judge. Instructively, the constitutional and statutory provisions establishing the NICN require every proceeding in the NICN and all business arising from it to be tried, heard and disposed of by a single Judge or not more than three judges as the President of the National Industrial Court may direct.43 It also requires all proceedings in an action after the hearing or trial, down to and including the final judgment or order, to be taken before the single judge or the judicial panel before whom the trial or hearing took place.44 These constitutional and statutory provisions call for consistency in the composition of the NICN in all proceedings and all through the hearing and determination of a case.45
Judicial precedents have, in no uncertain terms, given credence to the foregoing position. The Supreme Court in the leading case of A. O. Eghobamien v. Federal Mortgage Bank of Nigeria,46 counseled that "a trial must be conducted by the Judge himself" and at the end of the hearing, "he will write a judgment which is the authentic decision based on the evidence he received and recorded,"47 since it will be a mistrial and a question of competence for one Judge to receive evidence and another to write judgment on it. This translates into a well-founded legal expectation that the judicial officer presiding over a matter at the trial court must remain unchanged and must be the one that heard all the witnesses.48 Any variation in the composition of a court which robs all witnesses the opportunity to present oral evidence before the new trial Judge, like in Dada's Case, affects the jurisdiction and/or competence of such a court and renders the entire trial a nullity. A stronger endorsement was given to this position by the Court of Appeal in the case of Ebita & Anor. v. Ekpor & Ors.,49 thus:
It is decipherable from this juridical survey, that the lower Court was disqualified by law from using the strange evidence to write its judgment. The fact of five witnesses not testifying before it constitutes a feature in the case which prevented it from exercising its jurisdiction therein. Even then, the condition precedent, that all witnesses must proffer their parol evidence for it to assume jurisdiction over the case, was not met. The law does not sanction partial jurisdiction. It is either total or non-existent .... Put bluntly, the lower Court was not clothed with the jurisdiction to evaluate the evidence of those witnesses in writing its judgment. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity.50 (Emphasis added)
4. Conclusion
Though the intention of the new trial Judge in Dada's Case was good, the approach adopted was, with the greatest respect, wrong. The NICN in Dada's Case erred in law and journeyed on a solitary path51 when it received the previous evidence and made use of it to reach its final decision in the subsequent proceedings. The Court overlooked settled principles of law and failed to appreciate that:
- Non-compliance with the mandatory pre-conditions and procedure for the reception and use of previous evidence, as provided for in sections 46(1) and 39 of the Evidence Act, 2011, is fatal to the entire proceedings;
- The bandwidth of this procedure is limited and does not permit the importation and adoption of the evidence of all witnesses who testified before a previous trial Judge;
- The use of previous evidence by a new trial Judge, who did not see and hear any of the witnesses testify, to reach a final decision raises concerns about fair hearing and renders such a judicial exercise unlawful and incompetent;
- Evidence in earlier proceedings can only be used to discredit a witness in cross examination; and
- Variation in the composition of a court and the failure of the new trial Judge to hear all witnesses in a matter robs such a court of jurisdiction and/or competence.
5. Recommendation
Any party that intends to invoke the provisions of Order 40 Rule 21 and Order 62 Rule 10(5) of the NICN Rules or consimilar provisions in other Rules of Court should ensure that such legal invocation satisfies the pre-conditions and procedure laid down in statutory and judicial authorities. It is essential that when a pending matter is taken over by another judge of the court, the new trial Judge must hear the matter afresh. This legal reasoning is anchored on the need to make room for the new trial Judge to carry out his primary assignment of receiving evidence presented by parties and ascribing forensic utility to it. In such instances, the previous witnesses must be issued with Hearing Notices; examined; and cross-examined in the subsequent proceedings. It is after the stage has been set for a fresh hearing, and any of the witnesses previously called fails to respond to the fresh Hearing Notice, that section 46(1) of the Evidence Act, 2011 can be invoked upon the satisfaction of the stipulations in section 39 of the said Evidence Act.
Footnotes
1 Unreported Judgment in Suit No. NICN/JOS/17/2021 delivered by Honourable Justice I. S. Galadima, J. of the National Industrial Court of Nigeria, Jos Judicial Division on 5th February 2025. This can be accessed via this link: <MRS. ELIZABETH OMOWUNMI DADA -VS- NIGERIAN ELECTRICITY SUPPLY CORPORATION (NIGERIA) LIMITED- National Industrial Court of Nigeria> accessed 13 March 2025.
2 Ibid., at para. 3.
3 Ibid., at para. 8.
4 See also, Order 40 Rule 18 of the High Court of theFederal Capital Territory (Civil Procedure) Rules, 2025; Order 20 Rule 18 of the Federal High Court (Civil Procedure) Rules, 2019; and Order 36 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules, 2019.
5 The NICN (Civil Procedure) Rules, 2017 does not stand alone on this issue. Various High Court (Civil Procedure) Rules provide for this procedure though phrased differently. See, for example, Order 49 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019.
6 This is visible in the provisions of Order 40 Rule 21 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which subjects such an exercise to the provisions of section 46 of the Evidence Act, 2011. See the dazzling views of Honourable Justice Ogbuinya, JCA (as he then was) in the case of Ebita & Anor. v. Ekpor & Ors. (2018) LPELR – 46164 (CA) at pp. 21 – 35, paras. E – A.
7 See, United Bank for Africa PLC v. Ubi Angela Egwu (2015) LPELR – 25829 (CA) at pp. 4 – 5, para. G, per Honourable Justice Joseph Olubunmi Kayode Oyewole, JCA.
8 This point is settled beyond any iota of doubt by the clear provisions of Item 23 of Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which places "Evidence" in the "Exclusive Legislative List". Additionally, section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) empowers the National Assembly to make laws for the peace, order and good government of the Federation or any part thereof concerning any matter included in the Exclusive Legislative List.
9 (2018) LPELR – 45186 (CA).
10 Ibid., at pp. 15 – 28, paras. A – A, per Honourable Justice Adah, JCA (as he then was).
11 Validation was given to this point by Honourable Justice Akintan, JCA, in the case of Afribank (Nig.) PLC v. Shanu (1997) 7 NWLR (Pt. 514) 601 (CA) at p. 617, paras. B – D, in the following words: "One of the 5 afore-mentioned pre-conditions in addition to those set out in the proviso to the sub-section, must be satisfied before the provisions of the said section 34(1) of the Evidence Act can be of use." See also, Raymond Eze v. Betram Ene & Anor. (2017) 12 NWLR (Pt. 1579) 313 (SC) at pp. 329 – 330, paras. H – E; and Danish Car Carriers v. Ferikson Sura & Co. (Nig.) Limited (2012) 2 NWLR (Pt. 1284) 237 (CA).
12 See the case of A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) LPELR – 1045 (SC) at pp. 9 – 11, paras. G – A; and Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 (SC) at pp. 236 and 263.
13 This is designed to afford the new trial Judge the opportunity to carry out his primary assignment of receiving evidence presented by parties and ascribing probative value to it. The Judge is privileged to do this because he hears, sees and observes the demeanour of the witnesses. See the following cases: Nze Ben Osuji v. Michael Osuji (2024) LPELR - 62882 (CA) at pp. 69 - 70, paras. E - A; and Etinyin E. H. Coco-Bassey & Anor. v. Mr. Patrick Offong Bassey (2017) LEPLR - 43653 (CA) at pp. 18 - 20, paras. F – D. In the case of Usang & Ors. v. Okia & Anor. (2018) LPELR – 45186 (CA) at pp. 15 – 28, paras. A – A, Honourable Justice Adah, JCA (as he then was), observed thus: "The age long procedure in our law which is well known is for any Judge taking over any part heard case from another Judge, to start hearing the case de novo. Once the Judge fails to observe this procedure, he falls short of the expectation of the law in doing justice."
14 Section 46(1) of the Evidence Act, 2011 can only be invoked [upon the satisfaction of the reasons stated in section 39(a) - (d) of the Evidence Act, 2011] if after the stage is set for fresh hearing and Hearing Notice is served, any of the witnesses who previously testified fails to respond to the Hearing Notice.
15 See the case of Sanyaolu v. Coker (1983) 14 NSCC 119 at p. 126, lines 40 – 50, where the Supreme Court, per Honourable Justice Aniagolu, JSC, expressed satisfaction with the application of this procedure because the death of the witness was established. In the case of Francis Shanu & Anor. v. Afribank Nigeria PLC (2002) LPELR – 3036 (SC) at pp. 48 – 50, paras. F – A, Honourable Justice Ogwuegbu, JSC, rightly observed that "for the evidence of a witness in one judicial proceeding to be deemed relevant in a subsequent proceeding, the evidence must have been given on oath and will not be applicable where the witness is alive and present in court." (Emphasis added)
16 See the four conditions set out in section 39(a) – (d) of the Evidence Act, 2011.
17 This additional condition is embedded in the provisions of section 46(1) of the Evidence Act, 2011.
18 It is the duty of a party who wishes to call evidence under section 46(1) of the Evidence Act, 2011 to show that his case comes under the contemplation and satisfaction of the said section. See the case of Okonji v. Njokama (1999) 14 NWLR (Pt. 638) 250 (SC) at p. 272, paras. A – C; and at p. 280, paras. F – H; and Edward Nwadinobi & Anor. v. Monier Construction Company (Nig.) Limited (2016) 1 NWLR (Pt. 1494) 427 (CA) at p. 453 – 454, paras. F – C. This begins with such a party laying a proper foundation in his pleading and Witness Statement on Oath before he can introduce such evidence. See the following cases: Ogunmakinde v. Akinsola (2002) FWLR (Pt. 105) 781 (CA) at pp. 790 – 791, paras. G – A; and Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 (CA).
19 See, Section 46(1)(a) – (c) of the Evidence Act, 2011.
20 Honourable Justice Thomas, JCA, confirmed this position in the case of Archibong v. Edak (2006) 7 NWLR (Pt. 980) 485 (CA) at pp. 511 – 512, paras. H – B, thus: "The proviso in s. 34(1) of the Evidence Act are not disjunctive. The three conditions must be complied strictly before admission into evidence." See also, the following cases: Shukka v. Abubakar (2012) 4 NWLR (Pt. 1291) 497 (CA); and A. C. B. Limited v. Ajugwo (2012) 6 NWLR (Pt. 1295) 97 (CA).
21 See, Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 (SC).
22 The phrase, "representatives in interest", is an envelope word that covers privies in blood (heirs); privies in law (executors or administrators); and privies in estate (successors-in-title or assignees).
23 See, Obawole v. Williams (1996) 10 NWLR (Pt. 477) 146 (SC) at pp. 163 – 164, paras. E – B.
24 See the following cases: Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439 (SC) at p. 46, paras. B – E; and Bida v. Abubakar (2011) 5 NWLR (Pt. 1239) 130 (CA) at p. 174, paras. F – H.
25 See the resounding views of Honourable Justice Eko, JCA (as he then was), in the case of Edward Nwadinobi & Anor. v. Monier Construction Company (Nig.) Limited (2016) 1 NWLR (Pt. 1494) 427 (CA) at p. 454, paras. C – E.
26 (2024) LPELR – 62882 (CA).
27 Ibid., at pp. 64 – 67, paras. F – A, per Honourable Justice Adebola Samuel Bola, JCA.
28 (2002) LPELR – 3036 (SC).
29 Ibid., at pp. 30 – 31, paras. D – A, per Honourable Justice Samson Odemwingie Uwaifo, JSC. See also, the case of Etinyin E. H. Coco-Bassey & Anor. v. Mr. Patrick Offong Bassey (2017) LPELR – 43653 (CA) at pp. 15 – 17, paras. E – A, where Honourable Justice Saulawa, JCA, cited Shanu's Case and reiterated the said position on the purport of Section 46(1) of the Evidence Act, 2011.
30 See the elegant views of Honourable Justice Uwaifo, JSC, in the case of A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 17 NWLR (Pt. 797) 488 (SC) at pp. 502 – 503, paras. H – B, where he commented as follows: "In the present case, there is an incidental issue as to the propriety of one trial Judge taking all evidence available in a case and another (trial) Judge considering such evidence to arrive at a decision. That becomes a matter of fair hearing which touches on the issue of constitutionality and natural justice, as well as public policy. It is unlawful and incompetent for one Judge to decide on the evidence heard by another Judge. For that to happen is an infringement of the principle that justice must not only be done, but must be seen to be done." (Emphasis added)
31 This position was rightly captured by Honourable Justice Abba Aji, JSC, in the case of Senator Nurudeen Ademola Adeleke & Anor. v. Adegboyega Isiaka Oyetola & Ors. (2020) 6 NWLR (Pt. 1721) 440 (SC) at p. 526, paras. A – C, thus: "What makes it worse is that a judgment or decision came out of it by a member who did not partake in the vital proceedings of 6/2/2019 wherein evidence and cross-examination of vital witnesses took place. It is settled law that a judgment that is a nullity has no legal validity and can confer no right nor impose any obligation on anybody. Any defect in the composition ... is fatal, for the proceedings are a nullity no matter how well they were handled and decided. The defect is extrinsic to the proceedings." (Emphasis added)
32 These phrases were used in the case of Bassey Edibi v. The State (2009) LPELR – 8702 (CA) at pp. 13 – 14, paras. D – C, by Honourable Justice Nwali Sylvester Ngwuta, JCA (as he then was), to describe a scenario like the one in Dada's Case.
33 (2009) LPELR – 8702 (CA).
34 Ibid., at pp. 13 – 14, paras. D – C, per Honourable Justice Nwali Sylvester Ngwuta, JCA (as he then was). At page 18, paras. A – D of the said decision, Honourable Justice Mojeed Adekunle Owoade, JCA, noted that "it is totally unacceptable, even from the face of the record, for one Judge to hear a case and for another Judge to write, sign and deliver the judgment in the same case. For this reason alone, my learned brother Ngwuta JCA who read the lead judgment was not only right to have declared the judgment in this appeal as a nullity but also right to have described the judgment as a charade and a mockery of justice. I will add that it is a reckless and total breach of all the tenets of adjudication." (Emphasis added)
35 This is subject to a Judge reading a judgment written by another Judge who heard the case and indicating so in the records. See, Bassey Edibi v. The State (2009) LPELR – 8702 (CA) at pp. 12 – 13, paras. G – A, per Honourable Justice Nwali Sylvester Ngwuta, JCA (as he then was).
36 (2015) LPELR – 25829 (CA).
37 Ibid., at pp. 5 – 7, paras. A – A, per Honourable Justice Joseph Olubunmi Kayode Oyewole, JCA.
38 See the following cases on this point: Edward Nwadinobi & Anor. v. Monier Construction Company (Nig.) Limited (2016) 1 NWLR (Pt. 1494) 427 (CA) at p. 454, para. H; Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419 (CA) at pp. 475 – 476, paras. G – B; A. C. N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560 (SC); Olujinle v. Adeagbo (1988) 19 NSCC (Pt. 1) 625; Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348 (SC); Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) 381 (SC); Odusole v. Military Governor of Ogun State (2002) FWLR (Pt. 123) 361 (CA); Onyekwulunne v. Ndulue (1997) 7 NWLR (Pt. 512) 250 (CA).
39 See, Ayanwele v. Atanda (1988) 19 NSCC (Pt. 1) 1 (SC) at p. 5, lines 30 – 40, per Honourable Justice Wali, JSC.
40 See, Alade v. Aborishade (1960) 5 FSC 167 at p. 172.
41 (2008) 5 NWLR (Pt. 1079) 26 (SC).
42 Ibid., at p. 45, paras. A – D, per Honourable Justice Oguntade, JSC.
43 See, section 254E(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 25 of the National Industrial Court Act, 2006.
44 Ibid. On this point, see the relevant provisions in the other statutes: section 46 of the High Court Law, Cap. 63, Vol. 3, Laws of Akwa Ibom State, 2022; and Section 23 of the Federal High Court Act, Cap. F12, Laws of the Federation 2004.
45 The provisions of Order 40 Rule 21 and Order 62 Rule 10(5) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 enabling the adoption of the previous proceedings and continuing with the matter where the previous trial Judge stopped cannot predominate or detract from the provisions of section 25 of the National Industrial Court Act, 2006 providing that all proceedings must be heard and disposed of by a single Judge. Put differently, in such a conflict or unwholesome collision, Order 40 Rule 21 and Order 62 Rule 10(5) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 cannot triumph over the definite and uncompromising provisions of section 25 of the National Industrial Court Act, 2006 in the hierarchy of laws in Nigeria. See the case of Oniwara B. Ibrahim v. Ishola Balogun Fulani & Ors. (2010) 17 NWLR (Pt. 1222) 241 (CA) at p. 268, paras. C - D; and Alhaji Mohammed Dikko Yusufu & Anor. v. Chief Olusegun Aremu Okikiola Obasanjo & Ors. (No. 2) (2003) 16 NWLR (Pt. 847) 554 (SC) at p. 603, paras. A – D.
46 (2002) 17 NWLR (Pt. 797) 488 (SC).
47 Ibid., at p. 501, paras. E – F, per Honourable Justice Mohammed, JSC. See also, the case of Francis Shanu & Anor. v. Afribank Nigeria PLC (2002) 17 NWLR (Pt. 795) 185 (SC) at p. 225, paras. C – E, per Honourable Justice Uwais, JSC.
48 Where a variation in the composition of the Court occurs at the trial Court where witnesses testified, it is inappropriate for a Judge who did not hear all the witnesses testify and did not observe their behaviour/demeanour during testimonies to deliver the Judgment. See the following cases on this point: Senator Nurudeen Ademola Adeleke & Anor. v. Adegboyega Isiaka Oyetola & Ors. (2020) 6 NWLR (Pt. 1721) 440 (SC) at pp. 505 – 506, paras. G – F; p. 511, paras. B – C; p. 512, paras. A – C; pp. 512 – 513, paras. H – B; Oba J. A. Awolola v. The Governor of Ekiti State (2019) 6 NWLR (Pt. 1668) 247 (SC) at p. 266, paras. D – E; Nana Tawiah III v. Kwasi Ewudzi (1936) 3 WACA 52; Akosua Otwiwa & Anor. v. Adjoa Kwaseko (1937) 3 WACA 230; and Chief Yaw Damoah v. Chief Kofi Taibil & Anor. (1947) 12 WACA 167.
49 (2018) LPELR – 46164 (CA).
50 Ibid., at pp. 21 – 35, paras. E – A, per Honourable Justice Ogbuinya, JCA (as he then was).
51 The procedure adopted by the NICN in Dada's Case and the decision reached from such a procedure went against an avalanche of settled case law authorities in Nigeria. In the case of Afelumo & Ors. v. Ojo & Ors. (2013) LPELR - 19976 (CA) at pp. 24 - 25, paras. E - B, Honourable Justice Habeeb Olawale Abiru, JCA (as he then was), had this to say about such a situation: "The position of the law is that such statements which go against an avalanche of case law authorities must pale into insignificance and cannot be followed or relied upon. This point was succinctly made by Oputa, JSC in Onuoha v. State (1989) 1 NSCC 411, at p. 421 thus: '... a just decision of the case will be a decision in accord with the many, many authorities and previous decisions of our Courts as well as English decisions which our Courts have followed and adopted. A decision that throws all our existing authorities to the wind will no doubt be an alarming decision, but hardly a just decision.'" (Emphasis added)
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