➥ CASE SUMMARY OF:
Muhammed Ibrahim Onujabe & Ors. v. Fatimah Idris (CA/A/71/M/2009, 28 June 2011)
by Branham Chima.
➥ ISSUES RAISED
Defective affidavit.
➥ CASE FACT/HISTORY
The applicants are seeking several reliefs, the main prayer is for extension of time within which to seek leave of court to appeal against the judgment of the Sharia Court of Appeal and leave to appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL STRUCK OUT]
↪️ I. Whether the applicants have satisfied the twin conditions for the grant of an application for extension of time to appeal?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE AFFIDAVIT IS DEFECTIVE – NOT DATED WITH NO SIGNATURE
‘Clearly a notice of motion cannot stand on its own without an affidavit in support. The application to be competent must be accompanied by affidavit, therefore both the motion on notice and supporting affidavit ought to be filed in the same court. In the present application the title of the affidavit offends the provision of section 90(a) of the Evidence Act which requires that an affidavit be headed in the court where it will be used. Section 90(g) of the same Act requires that the affidavit be dated and the place where it is sworn stated. The applicants’ affidavit in the court’s file does not have any date nor signature. It merely states sworn to at the Registry of the Sharia Court of Appeal, Lokoja. The affidavit in the Registrar’s main file has a date on the column for date. The natural interpretation if one accepts the Registrar’s file is that the oath on the specific date stated was taken at the Registry of the Sharia Court of Appeal, Lokoja. The place of attestation and date are in conflict with the stamp of the Court of Appeal on the column for commissioner for oath in the same Registrar’s main file. The stamp has embedded on it a scribble like an initial. There is no signature nor name of the commissioner for oath. There is also no date on the stamp. Clearly from the last paragraph of the affidavit which read affidavit sworn to in the Sharia Court of Appeal, Lokoja and the stamp of the Court of Appeal at the column for commissioner of oaths, it is indisputable that the affidavit in support is defective and contravenes the provision of section 90 of the Evidence Act. A document such as an affidavit must be clear and unequivocal on when and where attestation was administered.’
NO EVIDENCE THAT THE AFFIDAVIT WAS ADMINISTERED
‘There is endorsement that the oath was paid for in the Court of Appeal but there is no evidence it was administered. The defect revolves on the title Sharia Court of Appeal and the lack of evidence that the oath was administered. The court referred to and described under order 1 rule 5 of the Court of Appeal rules 2007 now Court of Appeal rules 2011 is the Court of Appeal no other court, therefore the Sharia Court of Appeal title and Registry should not be in the affidavit in support of a motion in the Court of Appeal. This is a fundamental defect.’
AN AFFIDAVIT IS TO BE FILED ONLY WHERE IT IS TO BE USED – COURT NAME PROPERLY TITLED
‘The motion on notice is a process in the Court of Appeal. The affidavit in support ought to be headed same Court of Appeal and sworn too at the registry of the Court of Appeal as stated. A process meant to be filed in the Court of Appeal must be filed in the registry of that court where it is meant to be used. In A.S.T.C Quorun Consortium Ltd. (2004) 1 NWLR (Pt.855) 601 C.A Obadina JCA said: “What is in issue in this case is the question of filing. Should the affidavit after being sworn to, be filed in a court other than the court where it is to be used? I suppose not. The correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend and the two be forwarded to the court where it would be used for filing. It must also be pointed out that notice of intention to defend the suit is different from the affidavit in support thereof, What the rules require is that the notice must be filed with an affidavit disclosing a defence on the merit and I think, it can only be properly filed in the court where it is to he used.”’
‘Section 90 of the Evidence Act sets out the provisions to observe when taking affidavit. Section 90(a) of the Act stipulates that every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter. This provision requires that where a deponent decides to swear to an affidavit the same should be titled the court where he will depose to the affidavit, if before a commissioner of oath. Section 97 of the Evidence Act stipulates that before an affidavit is used in the court for any purpose, the original shall be filed in the court. The affidavit in support of the present application is wrongly titled Sharia Court of Appeal. The affidavit should be titled in the court where it is to be used. By the rules of the Court of Appeal every application must be supported by an affidavit. An applicant cannot support a motion on notice filed in this court with an affidavit in support filed in the Sharia Court of Appeal.’
THE AFFIDAVIT IS DEFECTIVE AND INCOMPETENT, THUS NO AFFIDAVIT HAS BEEN FILED
‘The affidavit I hold is defective and incompetent. The resultant scenario is that there is no affidavit in support of the application. By the provisions of order 7 rule 10(2) of rules of this court, the application must be supported by affidavit which will set forth good and substantial reasons why appeal was not filed within the prescribed period. Since there is no competent, affidavit the conclusion as rightly contended by the respondents counsel is that there is no reason proferred in support of the prayers. Order 7 rule 1 of the Court of Appeal rules 2011 used the phrase “shall” which connotes it is mandatory. There is no affidavit as I had earlier held. Therefore the motion ab initio is incompetent as it is not in compliance with the provision under order 7 rule 1 of the rules of court. If an affidavit fails to conform with the provisions of the oaths act and section 90 of the Evidence Act, it shall by virtue of the substantial defect be incompetent and invalid. See Lawal-Osula v. UBA Plc (2003) 5 NWLR (Pt.813)’]
.
.
.
✓ DECISION:
‘Where a motion on notice filed is adjudged incompetent. The proper order to make is one of strike out. Consequently the motion on notice filed on 24/03/2009 is hereby struck out. Cost of ₦10,000.00 (Ten Thousand Naira) only is awarded in favour of the respondent.’
➥ FURTHER DICTA:
⦿ PARTY SEEKING EXTENSION OF TIME TO APPEAL AGAINST A DECISION MUST ESTABLISH
Applications for extension of time to appeal or leave to appeal are not granted as a matter of course. See Solanke v. Somefun (1974) 1 SC 141. The party who seeks leave or extension must satisfy the twin conditions stipulated in order 7 rule 10(2) of the Court of Appeal rules 2007 which provision is same as the new rules under order 7 rule 10(2) of the Court of Appeal rules 2011. Order 7 rule 10(2) stipulates as follows: “Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” From the aforesaid provision reproduced above an applicant in an application of this nature must establish two preconditions to earn the discretion of the court. (1) He must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period. (2) His grounds of appeal must show prima facia good cause why the appeal should be heard. The applicant must satisfy the court by establishing the two conditions conjunctively before the application will be granted. See Bowaie v. Adediwura (1976) 6 SC 143; Alaegbe v. Abimbola (1978) 2 SC 39; Mobil Oil (Nig.) v. Agadaigho (1988) 2 NWLR (Pt.77) 383. — R.O. Nwodo, JCA.
⦿ OFFICER WHO ADMINISTERED AN OATH MUST STATE HIS NAME
Section 83 of the Evidence Act prescribed that an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner or a clerk of the legal practitioner. The import of this provision is that affidavits cannot be sworn before certain persons. Therefore the person duly authorised as commissioner of oath that signed the deponents’ affidavit must state his name. The information on name is verifiable. — R.O. Nwodo, JCA.
⦿ WITHOUT OATH THERE IS NO AFFIDAVIT
An affidavit in brief is a statement of facts or declaration made either on oath or affirmation before an authorised person. The averments in the affidavit are admissible as a fact until disproved because the averments are sworn before a commissioner for oaths. The life of an affidavit is the declaration on oath. What makes that piece of paper an affidavit competent to support the motion on notice is the attestation or swearing before the commissioner for oaths. Once the document is not sworn to, it is a mere piece of paper not an affidavit. Therefore without oath there is no affidavit. See Maraya Plastics Ltd. v. Inland Bank (Nig) Plc (2002) 7 NWLR (Pt.765) CA 109; Ijaodola v. Registered Trustees of C and SCM (2006) 4 NWLR (Pt. 969) 159; Udusesbe v. SPDC (Nig) Ltd. (2008) 9 NWLR (Pt.1093) CA 593. — R.O. Nwodo, JCA.
⦿ SECTION 84 WOULD HAVE AVAILED IF THE AFFIDAVIT HAD BEEN SWORN BEFORE A COMPETENT PERSON
In fact there is no doubt from the endorsement on the motion on notice as regards fees paid, that payment was made for oath taking, but there is no evidence the deponent attested before a commissioner for oath nor evidence of who endorsed on the stamp of the Court of Appeal. It is not sufficient to scribble an initial. Section 84 of the Evidence Act enjoins the court to permit a defective affidavit if satisfied it has been sworn before a person duly authorised. In the instance application the nature of the defect is not one in which this court can exercise discretion and allow same under section 84 of the Act. — R.O. Nwodo, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Regina Obiageli Nwodo, J.C.A
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Alexander Musa
⦿ FOR THE RESPONDENT(S)
A.M Aliyu
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
