DR. DATE-BAH JSC:
It is the unanimous view of the Court that the first defendant should be called upon to open his defence in the interest of justice. This case does not have the ordinary characteristics of a trial say at the High Court. The procedure before this Court is such that, before the commencement of oral testimony in this case, the first defendant had already put matters in evidence by affidavit. In this circumstance, it is artificial, and hardly sustainable, to disregard the evidence already adduced by the affidavit of the first defendant and proceed to an assessment of a no case submission made on his behalf, as if the only evidence on record is that of the plaintiff.
In this regard, we have sympathy with the following view expressed by Lord Justice Mance of the English Court of Appeal which is quoted with approval by Lord Justice Simon Brown in Benham v. Kythira Investments  EWCA Civ 1794 at para 14, in relation to English practice:
“In Boyce -v- Wyatt…