IN THE COURT OF APPEAL OF NIGERIA
On Thursday, The 27th day of February, 2014
CA/OW/338M/2012
BETWEEN
1. CHRISTIAN ONYENWE
2. NDUBUISI JOSEPH-MARY NJOKU ................. Appellants
V.
CHIEF GODWIN ANAEJIONU .............. Respondent
APPEARANCES
J. O. Asoluka with C. C. Nwalor Esq. for Appellant
C. I. Ugwoji for Respondent
MAIN JUDGMENT
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the Imo State High Court contained in the judgment of U. D. UGWURUIKE, J. delivered on the 28th day of March, 2012.
The Respondent, Chief Godwin Anaejionu who is a native of UMUAGHARA OBIBII in NGURU NWEAFOR AUTONOMOUS COMMUNITY in Aboh Mbaise Local Government Area of Imo State sued the following persons at the lower court viz:
1. IWUAGWU PETER NWANERI
2. DONATUS I ONYUKWU
3. CHRISTIAN ONYENWE And
4. NDUBUISI JOSEPH MARY NJOKU
Claiming as follows:
"The Plaintiff's claim is for:
"The sum of N8, 000, 000 (Eight Million Naira) damages against the Defendants jointly and severally for defamation of his character, reputation, credit and person.
C. An order of Injunction restraining the Defendants jointly and severally and their agents or privies from further defamation of his character, reputation, credit and person.
It must be stated however that the claim was modified in paragraph 22 of the Respondent's Statement of Claim wherein he claimed thus:
"22. The Plaintiff has been injured and his reputation, office, trade, possession and financial credit damaged by the malicious and false publication and therefore claim from the Defendants jointly and severally as follows:
a) The sum of N8,000,000 (Eight Million Naira) General Damages for defamation or libel.
b) An Injunction restraining the Defendants and their agents and privies from further Defamation of the Plaintiff's Character and reputation and credit." (Pages 3 -8) of the Record.
The four Defendants filed joint Amended Statement of Defence. Two of the Defendants namely IWUAGWU PETER NWANERI and DONATUS I. ONYEKWU were reported dead in the course of the hearing of the matter at the lower court and their names were struck out leaving the two Appellants herein.
At the trial, the Respondent as Plaintiff's Witness gave evidence in support of this case and called two other witnesses. The Appellants' first witness was Donatus I. Onyukwu who died before the conclusion of his Cross Examination.
The 2nd Appellant then testified as D.W 1 after the evidence of Donatus I. Onyukwu had been expunged from the Record on the application of Respondent's Learned Counsel C. I. Ugwoji Esq without any objection from the Appellant's Learned Counsel D. O. Nwalor Esq.
After the adoption of Final Written Addresses from Learned Counsel to the parties, the learned trial Judge gave a considered judgment on 28th day of March, 2012. On page 127-128 of the Record of Appeal the learned trial Judge held:
"In the final analysis and in the light of the foregoing, I hereby enter judgment in favour of the Claimant against the Defendants and order as follows:
1) The Defendants jointly and severally shallforth with pay to the Claimant the sum of N1,000,000 (One Million Naira) being damages for libel.
2) The Defendants by themselves or by their agents and privies are hereby restrained from further defamation of the Claimant's character, reputation and credit.
The Defendants shall pay costs to the Claimant which I asses and fix at N8,000 (Eight Thousand Naira)."
The Appellants were dissatisfied and Appealed against the said judgment vide their Notice of Appeal dated 30th day of March, 2012 and filed on 2nd day of April, 2012. It contained two Grounds of Appeal. The Appellants filed another Notice of Appeal dated 28th day of May, 2012 on 1st day of June, 2012 containing fourteen (14) Grounds of Appeal.
The Appellants have on page 5 of their Appellants' Brief of Argument abandoned the Notice of Appeal filed on 2/4/2012 dated 30th day of March, 2012 and have now argued the Appeal on the Notice of Appeal dated 28th day of May, 2012 and filed on 1st day of June 2012. The said fourteen grounds of Appeal without their particulars are as follows:
"3. GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The Learned Trial Judge erred in law by holding that paragraph 18 of the 2nd Appellant's Witness Statement which he adopted on oath in the witness box at the trial left the court to speculate as to whether or not the denial of paragraphs 16 and 18 in that deposition is referable to paragraph 16 and 18 of the statement of claim.
GROUND TWO: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the deposition of the DW1 (Ndubuisi Joseph Mary Njoku) which is adopted by him as his evidence in the case contained mere sweeping, unsubstantiated statements apparently geared to draw the court to the field of speculation.
GROUND THREE
The Learned Trial Judge erred in law by holding that the issues for determination in the suit are:
"(1) whether the claimant has proved that the alleged words are defamatory of him.
(2) whether the claimant is entitled to the relief claimed.
GROUNDS FOUR: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the evidence of the PW1 was not damaged by the Defence under Cross-Examination.
GROUND FIVE: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the PW2 and PW3 also told the court that the content of the publication lowered their estimation of the Claimant and caused them to shun him at the time.
GROUND SIX: ERROR IN LAW
The Learned Trial Judge erred in law by holding that "I believe the Claimant's evidence that the publication in Exhibit "J" concerning him are completely false. I hold that the ordinary meaning that a reasonable man will give to the said published words is that the Claimant is a notorious political [tout], a man that has no means of livelihood, a criminal and an instigator, a trouble shooter and an irresponsible person given to instigating trouble where bloodshed would result. I hold further that the said offensive words or publication in Exhibit "J" refer to Claimant and is capable of a defamatory meaning and it is indeed and in fact defamatory of the Claimant."
GROUND SEVEN: ERRORS IN LAW
The Learned Trial Judge erred in law by holding that paragraph 20 of the deposition of the DW1 and paragraph 19 of the Statement of Defence admitted publishing Exhibit "J" by implication.
GROUNDS EIGHT: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the submission of counsel to the Appellants which was made in the alternative is an implied admission of the publication of Exhibit "J" by the Appellants.
GROUND NINE: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the Claimant proved and established publication and that the defamatory matter was published to many persons other than the Claimant.
GROUND TEN: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the Appellants did not prove qualified privilege and by placing the burden on the Appellants to prove qualified privilege.
GROUND ELEVEN: ERROR IN LAW
The Learned Trial Judge erred in law by holding that the Respondent proved his case at the trial.
GROUND TWELVE: ERROR IN LAW
The Learned Trial Judge erred in law by awarding the sum of N1,000,000.00 (One Million Naira) in favour of the Respondent and against the Appellants.
GROUND THIRTEEN: ERROR IN LAW
The Learned Trial Judge erred in law by relying on Exhibit "J" in reaching a decision against the Appellants and by believing PW1, PW2 and PW3.
GROUND FOURTEEN
The judgment is against the weight of evidence.
The Appellants filed their Brief of Argument in this Appeal on 22nd day of April, 2013. It is dated 19th day of April, 2013. The Respondent's Brief of Argument dated 21st day of May, 2013 was filed on 9th day of July 2013.
The Appellants filed Appellant's Reply Brief dated 30th day of July, 2013 on 6th August, 2013. The Appeal was heard on 3rd day of December, 2013 when the Learned Counsel to the parties adopted their respective Briefs of Argument. The Appellants' Learned Senior Counsel D. C. DENWIGWE, S.A.N, formulated six issues for determination namely:
a. Whether the construction which the trial Court placed on paragraphs 16, 18 and 20 of the deposition and the evidence of the DW1 generally and paragraph 16 and 18 of the Appellants Pleadings is justified (Grounds 1, 2 and 7).
b. Whether the trial court was right when it held that the only issues for determination at the trial are:-
"(i) Whether the Claimant has proved that the alleged words are defamatory of him?
(ii) Whether the Claimant is entitled to the relief claimed? (Ground 3 and 9)?"
c. Whether the construction and reliance which the trial court placed on Exhibit "J" is justified? (Ground 6)
d. Whether the trial court was right by holding that the submission of counsel to the Appellants which was made in the alternative is an implied admission of the publication of Exhibit "J" by the Appellants (Ground 8)
e. Whether the trial court was right by holding that the Appellants did not prove qualified privilege (Ground 10)
f. Whether the Respondent proved his case at the trial? (Ground 4, 5, 11, 12, 13 and 14)
The Learned Counsel to the Respondent C. I. Ugwoji Esq., distilled two Issues viz:
1. Whether the trial court was right by holding that the Appellant did not prove qualified privilege.
2. Whether the Respondent proved his case at the trial.
I am of the view that having regard to the facts relating to this Appeal and in particular the Grounds of Appeal filed, the issues for determination are the following namely:
1. WHETHER THE RESPONDENT PROVED HIS CASE AT THE TRIAL (GROUNDS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 14)
2. WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE CLAIMANT IS ENTITLED TO THE RELIEFS CLAIMED (GROUND 12 & 13)
ISSUE ONE
WHETHER THE RESPONDENT PROVED THIS CASE AT THE TRIAL
The Learned Senior Counsel D.C. Denwigwe, S.A.N for the Appellants referred to the pronouncement of the Learned trial Judge on pages 121-122 of the Record on paragraphs 16, and 18 of Appellants' Pleadings.
That the trial Court was wrong in presuming and coming to the wrong conclusion that the Pleadings contained in those paragraphs were merely sweeping and unsubstantiated. That the trial Court ought to have dealt with the totality of the evidence and the parties' case and not to look at the defence in isolation. That Respondent gave oral evidence even though he never filed a Written Deposition for himself. That by Order 32 Rule 1(3) of the Imo State High Court Rules the 1st DW did the right thing by adopting his Written Deposition on Oath. That the comments of the trial Judge gave the impression that DW1 was wrong in adopting his Written Statement on Oath that the trial Court owed it a duty to accept and act on the deposition as evidence that supports the Appellant's case.
The Learned Silk submitted that it is also wrong for the Learned trial Judge to rely on paragraphs 19-20 of the Amended Statement of Defence in coming to the conclusion that the Appellants had admitted publishing the offensive letter Exhibit "J"
That throughout the Cross Examination of DW1, he was never asked question on Exhibit "J" and was not shown Exhibit: J" so as to own up any signature on it or to deny it. He relied on pages 75-78 of the record and pages 80-84 of the record. That the DW1 denied writing Exhibit J.
That for inexplicable reasons, the Respondent's Learned Counsel at the Court below applied that the evidence in chief of the DW1 be expunged; on the ground that he was not cross examined before his death. That it was a misrepresentation of the record as the Learned trial Judge did not cross check his record. That the witness was vigorously cross examined. Learned Silk acknowledged the fact that the Learned Counsel to the Appellant at the lower Court did not object to the expunction of DW1's evidence.
The Learned Silk for the Appellant stated that what was expunged was the Evidence-in-Chief and Not the Cross Examination of DONATUS ONYUKWU (reported dead) who gave evidence as Original DW1.
That the cross examination revealed that the privileged occasion of their letter complained to persons who had a duty, legal, social and moral to receive the complaint.
That the evidence cast the burden upon the Respondent to prove that Exhibit 'J' is the letter which the Appellant wrote. That Respondent cannot discharge that burden without
(i) demonstrating that the Appellants actually published the letter to that named source.
(iii) Showing that Exhibit J is actually a true copy of that letter.
He relied on the case of SALUDEEN VS MAMMAN (2000) 14 NWLR (Pt. 686) 63 at 85 G-H. That the Respondent ought to have proved that the letter Exhibit J was received or given to PW2 and PW3. He relied on OBAKPOLOR VS OYEFESO (1997) 6 NWLR (PART 508) 256 at 273 A-F.
That the new DW1 was also not confronted with Exhibit J and that Exhibit J is not an original copy of any letter. That it is not a duplicate but a photocopy allegedly made by a person in Abuja who was never named or called as a witness so as to make him available for Cross Examination, as to who he or she is and the person who published Exhibit J to him or her. And to know whether he or she is a member of "the Ofeama Development Union Abuja"
That some of the friends the Claimant pleaded were not called or named.
That the source of Exhibit "J" are "Some of his friends in Abuja"
That hearsay evidence does not cease to be hearsay because it is printed. That Exhibit "J" is documentary hearsay which according to learned silk is statutorily inadmissible. He relied on following cases viz:
See OSUOHA vs. THE STATE (2010) 6 NWLR (Pt. 1219) 364 at 401-402 H-G and 400 C-F.
OPAYEMI vs. THE STATE (1985) 2 NWLR (Pt. 5) 101 at 108-109.
BUHARI vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 396 C and 386 SALAWU OLUKADE vs. ALABODE (1976) 2 SC 183.
OLANLOYE vs. FATUMBI (1999) 8 NWLR (Pt. 614) 203
A-G LEVENTIS (NIG) PLC vs. AKPU (2007) 17 NWLR (Pt. 1063) 416.
On the duty to construe Pleadings as a whole the Learned Silk referred to (1) BUHARI vs. INEC (Supra) at 421 C- H.
(2) EIGBE vs. N.U.T (2006) 16 NWLR (Pt. 1005) 244 at 258 C - H, 258 -259 H - A. And
(3) NGIGE vs. OBI (2006) 14 NWLR (Pt. 999) 1 at 117 E - H and 142 C - F.
That a Defence in the alternative will only arise if the substantive defence fails and that it does not deprive the party the benefit of the principal defence. This court is urged to decide the issue in favour of the Appellants.
In response to the submissions of the Appellants on Issue 1, the Learned Counsel to the Respondent stated that the comment made concerning paragraphs 16, 18 and 20 of the Amended Statement of Defence of the Appellants was not unfair nor is it a wrong presumption. That the comment did not affect the judgment of the trial Court as the Court rightly presumed the paragraphs to be that of the Claimant being denied by Appellants in their Pleadings. That what the judge said is that the evidence of DW1 was a mere reproduction of the Statement of Defence which was not explained and supported by evidence to prove the deposition of DW1. That the Appellants are merely attacking mere observation and comments of the Judge and not the substance or merit of the case or judgment. That there was no specific denial of Exhibits J and K by the Appellants in their Amended Statement of Defence and the deposition of DW1 on pages 12 and 34 of the Record. That the Appellants admitted those Exhibits. That what they are denying is the construction placed on Exhibit "J" by the lower Court that the Appellants did not lead evidence to substantiate their allegations or assertions contained in paragraphs 16, 18 19 and 20 of their Statement of Defence. That he who asserts must prove. He relied on the cases of
1. ONYEKA ONWU vs. EKWUBIRI & ORS (1966) ALL NLR 34
2. BALOGUN vs. SHITTA LABIRAN (1988) SCNJ 71 at 72
3. PHARMACIST BOARD OF NIGERIA vs. ADEGBESOTE (1986) 10-11 SC 97 at 120.
4. AKIN OMOBORIOMO vs. AJASIN (1984) 1 SC 206 at 207.
That it is not enough to merely reproduce Statement of Defence. There must be evidence to support it.
He relied on the evidence of PW2 who said on page 54 of the Record that he was the Chairman of Aladinma and that the Appellants never held any executive position in ALADINMA OF OFEAMA OBIBII NGURU. That Exhibit J was an impersonation by Appellant and never came from the Aladinma Executives. That the trial Judge was right in his findings and conclusions.
That the issue of who signed Exhibit J was not in issue. That the DW1 never denied his signature on Exh. "J"; that since he never denied the signature when issues were being joined, there was no need to confront him with the signature on Exhibit "J". That the signature of DW1 is on Record before the court and it could be compared with signature on Exhibit J. That he signed his Witness Statement on Oath and that the issue of signature was too late in the day. He relied on Section 101 of the Evidence Act and the cases of OGHENEONU vs. FEDERAL REPUBLIC OF NIGERIA (2013) ALL FWLR (Pt. 667) 704 at 732-733.
On evidence on pages 75-78 of the Record of Appeal, Ugwoji Esq., submitted that reliance placed on the evidence which belonged to original DW1 is misleading and calculated to deceive the court. That the evidence was totally expunged from the record and that any reliance on it goes to no issue.
He submitted that whether the trial Judge made a slip or not in expunging the evidence of former DW1, the facts remained that the totality of the evidence had been expunged and that cross-examination cannot stand on evidence-in-chief that has been expunged from the record. He relied on page 88 paragraph 3 of the record.
On the issue of publication of Exhibit "J" the Learned Counsel submitted that Respondent, from the record, proved the publication even though there was no burden on him to prove what have been admitted and not in issue. That the Appellants in paragraphs 13, 14, 15, 16, 17 and 19 of their Statement of Defence admitted the publication claiming privilege, reasons for the publication, that it is a mere crying out to persons in authority.
According to Learned Counsel, the issue of publication had been settled in the Pleadings and that the trial court gave adequate consideration to the meaning conveyed by Exhibit "J" and considered the defence of privilege raised by the Appellants. He urged this Court not to disturb the findings and conclusion of the learned trial Judge.
Now by the Imo State High Court (Civil Procedure) Rules 2008 Order 32 Rule 1(3) thereof, a party is expected to prove facts pleaded in his or her pleading and Witness Statement on Oath by entering the witness box, sworn to testify and then adopt under Examination-in-Chief, his Witness Statement on Oath which is an embodiment of facts pleaded in the pleadings of the party concerned save that it is on Oath. Upon adoption of the Witness Statement on Oath, all that is contained in the said Witness Statement on Oath becomes the witness's evidence before the court.
If there are documents to be tendered he will tender them subject to conditions for admissibility provided in the Evidence Act or other relevant enactment. The witness will then be handed over to his adversary for Cross- Examination on his evidence as adopted. See DR. OLUSEGUN AGAGU Vs RAHMAN OLUSEGUN MIMIKO & ORS (2009) 7 NWLR (Pt. 1140) 34 at 424 E-H to 425 A where ABDULLAHI President Court of Appeal (Rtd) had this to say:
"The contention of the learned senior Counsel for the appellant that no modicum of oral evidence in chief was produced on the documents is erroneous. The provisions of the Election tribunal and court Practice Directions dispensed of oral evidence-in-chief. The witnesses are to enshrine their evidence-in-chief in depositions which will be adopted at the trial by the deponents who will then be cross-examined and be re-examined. See Paragraph 4(1) and (3) of the Practice Directions which provides as follows:
"4(1) Subject to any statutory provisions or any provisions of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses...
(3) There shall be no oral examination of a witness during his Examination-in-Chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition."
It is clear from the foregoing provisions of the Election Tribunal and Court Practice Direction, that facts are receivable in evidence by Witness' Statement and viva voce examination of the witnesses.
After leading a witness to adopt his statement, he can then be cross-examined and re-examined viva voce."
It is easily inferable to know that "paragraphs 16 and 18 are denied" to which reference and comments were made by learned trial Judge concerning Witness Statement on Oath of new DW1 can only mean paragraphs 16 and 18 of the Statement of Claim. The whole of the facts pleaded in the Amended Statement of Defence became evidence and defence of the Appellants to the Respondent's averments in the Statement of Claim upon the adoption of WITNESS STATEMENT ON OATH OF NDUBUISI JOSEPH MARY NJOKU. That is the evidence in support of Appellants case. Whether it is substantiated or not is a matter of evaluation and belief or disbelief of same by the trial court.
A careful reading of the Witness Statement on Oath makes it clear what the Appellants are or were referring to are facts pleaded by Claimant in his Statement of Claim. There is no speculation in there. The Claimant had pleaded in paragraph 19 of his claim thus:
"The Defendant published the document maliciously and falsely to injure the Plaintiff and exposed him to ridicule and contempt and to lower his estimation to these persons they published it to namely:
a. The Chairman of Aboh Mbaise
b. The DPO, Aboh Mbaise
c. The Ministry of Land, Survey and Urban Development, Owerri
d. The Central Police Office Owerri
e. The Ofeama Development Union, Abuja
f. The Ofeama Development Union, Lagos
g. Aladinma Umuezi
h. Aladinma Obokwu
i. Aladinma Ngali
j. The Parish Priest of St. Anne's
k. The Parish Priest of Holy Trinity Obibii
l. Chief Dr. J. A. Iroegbu
m. Rev. Fr. Dr. Cletus Ogu"
And Appellants by paragraph 16 of the Amended Statement of Defence pleaded in reply to the said Statement of Claim in their own paragraph 19 thereof thus:
Paragraphs 16 to 18 are denied. The Defendants have never set out to tarnish the image or any reputation of the Plaintiff. Instead, the Plaintiff duly cry out to officers and persons who occupy social, religious, cultural, moral and governmental positions over matters which pertain to the Plaintiff and the Defendants equally. All the persons pleaded in Plaintiff's paragraph 19 occupy such standing.
In effect there is nothing sweeping or speculative in the evidence of the DW1. The learned trial Judge should only have concerned himself with what weight or value the pieces of evidence given by DW1 commanded in his view.
The Appellants have also complained that the learned trial Judge did not make use of the evidence of DONATUS I. ONYUKWU who was the original DW1 in the case but whose evidence was expunged from the Record by the Learned trial Judge upon application of Claimant's Learned Counsel which was not opposed by Learned Counsel to the Appellants at the court below. The circumstances leading to the expunging his evidence can be found on pages 79 of the Record thus:
"RESUMED AT ABOH MBAISE ON MONDAY 26TH JULY, 2010
BEFORE HIS LORDSHIP HON. JUSTICE U. D. OGWURIKE
Suit No. HAM/17/2006
Parties present except 1st and 2nd Defendants.
C. I. UGWOJI Esq. for the Claimants.
D. O. Nwalor Esq. for the Defendants. He states that it is for continuation
of cross examination of D.W.1. He states that 1st and 2nd Defendants are dead and applied that their names be struck out.
Counsel for the Claimant does not object.
Court: In view of the Application of learned counsel for the Defendants that the names of the 1st and 2nd Defendants on Record be struck out because they are dead, the names of the said 1st and 2nd Defendants that is Iwuagwu Peter Nwaneri and Donatus I. Onyukwu are hereby struck out. He states that he applies for adjournment to field next witness.
Counsel for the Claimants applies that the evidence in chief of Donatus I. Onyukwu be expunged now that he is dead. Counsel for the Defendants does not object.
Court: In view of the fact that the D.W.1 Donatus I. Onyukwu is dead and he was not cross examined before his death, the Application of counsel for Claimant that the evidence in chief of the said Donatus Onyukwu be expunged is granted as prayed; the said evidence in chief is hereby expunged. On agreement of counsel, this case is adjourned to Monday 25th October and Monday 6th December 2010 for continuation.
(SGD.) U. D. UGWURIKE
I must state that where a witness gives evidence in proceeding whether after Examination-in-Chief or in the course of Cross Examination and died without completing his evidence under any of the two situations, the fact of his death will not render his evidence useless or irrelevant in that proceeding. The Court depending on the circumstances can still accord the evidence of a deceased witness some weight or value. See MAFIDOH OKWA vs. IYERE IWEREBOR & ORS (1969) NSCC 73 at 75 per ADEMOLA, CJN of blessed memory who held thus:
"The law as to the position of a witness who died before cross-examination of his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstance of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 LJ. Ch 252 where a witness gave evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romily Master of the Rolls said:-
"..but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as is should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined."
All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab, All I.R (1936) Patna 34.
In our judgment therefore, the Learned Judge was in error when he held that it was fatal for the Plaintiff's case that the learned Magistrate relied on the evidence in chief."
I am of the view that the lower court was misled into expunging the evidence of the original DW1 by both the learned counsel to the Respondent and the learned counsel to the Appellants. The court cannot be blamed. The Appellants as well as their respected Learned Counsel are bound by the order expunging the evidence on pages 75-78 of the Record.
The net effect is that it is as if DONATUS I. ONYUKWU now late, never testified in the action. His evidence thus becomes otiose, irrelevant and no longer of any moment in this Appeal.