Lawyer disagrees with magistrate over charge, insists case before court land dispute involving two families, not criminal charge filed by police

From IKECHUKWU NNADI, Nsukka

As if this is the season of criminalization of civil cases for whatever the gains, an Enugu lawyer has had a serious altercation with a Grade One Magistrate in Nsukka, Enugu judicial division, over the nature of the charge against his clients, two brothers who are engaged in a land dispute another family.

When the case came up for hearing Tuesday this week, at Magistrate Court 3, in suit number  MN/125C/2022, between the
Commissioner of Police, Enugu and Fidelis Attama and his brother, Livinus Attama, the lawyer and defence counsel, Barrister Nick Abugu, had promptly drawn the attention of the Magistrate, Her Lordship, Mrs. Maureen Chioma Asogwa, to the fact that the matter was a land dispute between his clients (two brothers) and another family but that the police had inexplicably twisted and criminalised the charge and his clients, but the Magistrate insisted that she was only interested in the charge before her and not the land dispute claimed by the defence counsel.

However, when the matter was called for continuation of cross examination of the first Prosecution Witness (PW1), the magistrate gave Barrister Abugu 10 minutes to complete his cross- examination, a seeming violation of the Evidence Act which does not provide for such time limitation.

Nevertheless, the matter went thus:

Court: What is the matter for?

Lawyer: For the continuation of cross-examination of the  PW1.

Court: Where is the Witness?

Court Clerk: Maryrose Ezugwu (witness is reminded in Igbo language that she was on oath.

Court: Yes, the matter is for conclusion of cross examination of PW1. Counsel you have 10 minutes to conclude your cross-examination.
My own time is exactly 11:50 so 12 O’clock you are to conclude. Yes!

Lawyer: Madam, did Benjamin Ezugwu your husband tell you that Ozioko Onumonu Attamah, the father of the accused persons, sometime in the past approached the father of your husband with drinks and requested that his father should sell a part of the land in dispute to him Onumonu Attamah and this request was made in the presence of Benjamin your husband?

Mrs. Ezugwu:  The father of the defendant sometime ago met my father in law requesting that he should sell part of the parcel of land in dispute but my father in law refused.

Lawyer: You were not present when the father of the defendants came to your father in law.

Mrs. Ezugwu:  Yes, I was not there.

Lawyer: You made a statement to the Police on the incident that led to this charge in which you are now testifying as a witness to the prosecution and your statement was recorded in writing and you signed?

Mrs. Ezugwu:  Yes.

Lawyer: You told the Police in your statement in writing that your husband told you that he, your husband was the last person that have boundary  with the suspects late father, Onumonu Attamah, is that true or false?

Mrs. Ezugwu: It is true.

Lawyer: The land that your husband told you that shares common boundary with the land of the father of the accused persons, is the land in dispute now in this charge;  is it true or is it false

Mrs. Ezugwu: It is false.

Court: Counsel the time is 12:03, so your cross examination will stop here.

Lawyer: Sorry my lord, I haven’t finished, I have other questions to ask.

Court: Prosecution Counsel any re-examination?

Lawyer: I have other questions to ask.

Prosecution Counsel, J.D. Utazi: No re-examination.

Lawyer: My Lord, if the Court is stopping me may the Court record that I have been stopped because I have not finished. My Lord, I sincerely and passionately plead that  the Honourable Court allows me to conclude the cross-examination of PW1. I also plead that if the Honourable Court is saying that I should stop, the Honourable Court records that it stopped me because I didn’t say that I have finished. My Lord, there is nothing in the Evidence Act that allows or enables the Honourable Court to fix the time for cross-examination. My Lord Section 215 of the Evidence Act clearly stated in subsection 2, that the cross-examination need not be confined to the facts to which the witness testified in his evidence in chief. The right of cross-examination is a component of the right to fair hearing guaranteed by the Section 36(1) of the 1999 Constitution, as amended, and that is the basic law of Nigeria or what lawyers like to call the ground norm. So my lord we sincerely still plead with the Honourable Court to allow us to exercise our right to fair hearing.

Court: Counsel you can sit down.

Lawyer: As the Court pleases.

Court: Registrar you can sit down.

Court: Registrar give me date.

Court : Prosecutor did you come with any other witness?

Prosecution counsel: No

Registrar: 9th April.

Court: How many witness do you have?

Prosecution counsel: One or two.

Court: Since there is no re-examination by the prosecuting counsel, PW1 is hereby discharged. It is worthy of note that on the first day this matter came up for cross-examination that the defence counsel took more than three hours to cross-examine PW1, on the last date, defence counsel took over two hours to cross-examine PW1 and today defence counsel took over 15 minutes to cross-examine the same witness against the order of the court, which says he should conclude his cross-examination within 10 minutes. 

The defence counsel has on several occasions informed this court during the cross-examination of this witness that the sky is the limit of cross examination…

Lawyer: Sorry my Lord, I didn’t say that, I never said the sky is the limit, the court should not misrepresent me.

Court : ….but this court rejects same on the afore reason that the sky is the limit of cross examination is not a good law. 

Lawyer: Sorry my lord, I didn’t say that.

Court:… This is not because to put it lightly the lawyer is not astronomical or astronomy but because there is no such law, the discipline of law is one which is characterized by limitation here and there and cross-examination cannot occupy such a tall and amiable place in our law of procedure and here I should say that relevancy is a limitation in all the three types of examination including cross examination after all relevancy is a cynosure or heartbeat of law of evidence. See the case of  Isheno v. Julius Berger P.L.C 2008 LPLER-1544-(SC) ie , I quoted per Niki Tobi, JSC, you can go to page 24 paragraph C-F, in the circumstance, this cause and this matter is hereby adjourned to 9th day of April, 2025, for evidence of PW2 and continuation hearing.

Lawyer: As the Court pleases.

Prosecution counsel:  Your Worship I am making an application for the ….

Court: PW…. Have I discharged you, Okay I have discharged PW1.

Prosecution counsel: For this proceeding to be available for me…

Lawyer: Sorry sir, I didn’t say, the sky is the limit, I am too old for that. I know that the sky is not the limit but if the Court says that I said so, I pray that the Court will remember I never said so.

Court: Yes…. 159, apart from 159, who else has matter in this court that has not been mentioned?