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THE PRESBYTERIAN JOINT HOSPITAL UBURU & ORS v. MR. JOHN ONELE & ANOR

(2018) LPELR-45058(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of July, 2018

CA/E/247/2017


Before Their Lordships

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria


Between

1. THE PRESBYTERIAN JOINT HOSPITAL UBURU
2. THE CHIEF MEDICAL
DIRECTOR, PRESBYTERIAN
JOINT HOSPITAL UBURU (DR. RASAQ OGENEBOR)
3. THE REGISTERED TRUSTEES
OF THE PRESBYTERIAN
CHURCH OF NIGERIA
4. CHIEF HON. JOHNSON EDE
5. HON. EZEOGHU JOSEPH OGBONNA
(For themselves and on behalf of Amamkpuma
Ukawu Community in Onicha
L.G.A, excepting the Family of
Late Onele Nwekpe) - Appellant(s)

AND

1. MR. JOHN ONELE
2. MR NICHOLAS OGBONNA ONELE
(For themselves and on behalf of Late Onele Nwekpa of Amamkpuma Ukawu in
Onicha L.G.A) - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an interlocutory appeal against the ruling of Hon. Justice F.A Edem sitting at the High Court of Ebonyi State, delivered on 20/3/17 wherein the learned trial judge in a considered ruling held that the Appellant cannot cross examine the 2nd Respondent on a sworn statement that was already struck out by the Court.

The Respondents were the Plaintiffs who initiated the action against the 1st and 2nd Defendants (1st and 2nd Appellants on Appeal) by a writ of summons on 18th March, 2015 claiming against them declaration of title over land, injunctions and damages. Parties filed their respective originating processes. The Respondents filed along with their claim, written statements on oath of their four witnesses; the 1st and 2nd Appellants joined issues with them and filed their statement of defence and the sworn written statements on oath of their witnesses. ???Pursuant to an application by the 1st and 2nd Appellants, the 4th and 5th Appellants were joined in the suit, and they amended their processes in accordance with the Court order. While the Respondents filed a new statement of claim dated 29/6/2016 accompanied with the written statement on oath of all their proposed witnesses, the Appellants filed an amended statement of defence together with written statements on oath of their eight proposed witnesses.

Also the 3rd Appellant was joined in the suit on an application by the Respondents. The Respondents filed another fresh statement of claim with the written statements on oath of their witnesses while the Appellants did same by filing further amended statement of defence with written statements on oath of their proposed witnesses. When hearing of testimonies commenced on the 20/3/2017, Pw1 applied that his previous written statements on oath variously dated 18/3/2015, 29/6/2016 and 27/9/2016 be withdrawn as he no longer intended to rely on them. Though vehemently opposed, the learned trial Judge granted the application to withdraw the said statements and they were accordingly struck out.

However, under cross-examination by the learned counsel to the Appellants, the 2nd Respondent was asked questions relating to his previous written statements on oath sworn to on 18/3/2015, 29/6/2016 and 27/9/2016 and the Respondent's counsel objected on the ground that the Appellants' counsel could not cross examine the PW1 on those struck out sworn written statements. After listening to both counsel on the propriety or otherwise of cross examining the Pw1 on those previous sworn written statements already withdrawn and struck out by the High Court, the High Court ruled upholding the objection of the Respondent's counsel.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on the Appellant's 1st issue couched as follows:

"Whether the learned trial judge was justified having regard to the provisions of Section 231 and 232 of the Evidence Act 2011 in refusing to allow the Appellants' counsel cross-examine the Respondents' witnesses with processes in the Court's file in the circumstances of this case ."

DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same. The Judgment of the High Court was set aside. The suit was sent back to the Chief Judge of Ebonyi State to be tried before another Judge.


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