➥ CASE SUMMARY OF:
Zenith Bank Plc v. Bankolans Investments Limited & Anor. (CA/L/946/08, 13th day of July 2011)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Further affidavit by Respondent;
Reliefs should be clear and quantifiable;
➥ CASE FACT/HISTORY
The claimants/respondents commenced an action at the High court of Justice Lagos State by way of originating summons dated 18th July, 2006 claiming declaration and damages against the Defendant/Appellant. In response, the Defendant/Appellant entered appearance and filed a 39 paragraph counter affidavit dated 18th July, 2007. The Claimants/Respondents on 15th October, 2007 filed a further affidavit in support of the originating summons. Thereafter the Defendant/Appellant filed a 1st further counter-affidavit opposing the claimants’ originating summons dated July 18, 2006. The Claimants/Respondents filed a Notice of Preliminary Objection dated 31st October, 2007 challenging the competence of the said 1st further counter-affidavit as being a process unknown to law and an abuse of court process. In a considered Ruling the learned trial judge Pedro J. at page 118 of the record had this to say: –
‘It is on this score that I hold that the procedure adopted. by the Defendant/Respondent in filing their 1st further counter affidavit in this suit is alien to the rules not being in accordance with the rules, its fate lies in being struck out.’
Dissatisfied with the ruling Defendant/Appellant filed a Notice of Appeal dated 26th June, 2008 containing five grounds of appeal.
➥ ISSUE(S)
I. Whether or not the Claimants/Respondents’ Notice of Preliminary Objection is incompetent and ought to have been struck out as the Defendant/Appellant contends?
II. Whether the learned trial judge wrongly struck out the 1st further counter affidavit as process unknown to law though competent?
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE RESPONDENT DID NOT INSERT A COMPETENT RELIEF IN THEIR NOTICE OF PRELIMINARY OBJECTION
‘As rightly submitted by appellant’s counsel the failure of the Respondents to insert a competent relief in their Notice of Preliminary Objection cannot be called a trifle mistake. It is a fundamental error touching on the competency of the said notice of preliminary objection.
There was no written or oral application by the claimants/respondents to amend the relief in the notice of preliminary objection. The Respondents’ notice of preliminary objection dated 31st October 2007 contained no relief capable of being granted and same ought to have been struck out. Respondents by the notice of objection asked the lower court to strike out a motion whereas it was the 1st further counter affidavit that they alleged was incompetent. It is trite law that a court is without power to award to a claimant that which he did not claim. See: Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 271; Nwanya v. Nwanya (1987) 3 NWLR (Pt. 62) 697; Nwachukwu v. Egbuchi (1990) 3 NWLR (pt.139) 435 and Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251. I agree with the submission of appellant’s counsel that the notice of preliminary objection is incompetent as it contained no relief capable of being granted. The learned trial judge was in error not to have struck it out. I hold that the notice of preliminary objection is incompetent and same is struck out.’]
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.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[WHERE NEW FACTS ARE INTRODUCED IN A FURTHER AFFIDAVIT, THE OPPOSING PARTY IS ENTITLED TO FILE A FURTHER AFFIDAVIT TOO
‘Both parties complied with the above procedure. Upon receipt of the counter-affidavit Respondent filed a further affidavit on 15/10/07 in support of the originating summons dated July 18, 2006. See: page 74 of the record. This prompted the Appellant to file a 1st further counter affidavit on 18/7/07 opposing the Claimants/respondents’ originating summons dated 18 July, 2006. See page 99 of the record of appeal. The Respondents then filed a preliminary objection challenging the competency of the 1st further counter affidavit that the said process is unknown to law. The learned trial judge upheld the objection and struck out the 1st further counter-affidavit filed by the appellant on the ground that the process is alien to the rules of court. Now the question is, was the learned trial judge right when he held that the Appellant was not entitled to file a further counter-affidavit after being served with the Respondents further affidavit?’
‘I have noted that Respondent filed a further affidavit introducing new facts in paragraph 4 (m). Earlier in this judgment I did note the effect of failure to file counter affidavit in an application or action whose proceedings are based on affidavit evidence. Appellant’s fear is that if it is denied the right to file the further counter affidavit then it means it has admitted the new facts introduced in paragraph 4 (m) of the further affidavit. It is true the rules did not expressly provide for the filing of further counter affidavit. However the same rules did not also state that further counter affidavit cannot be filed in any circumstance. The issue of non-compliance with the rules cannot arise in the case at hand. While I agree with Respondents’ counsel that court should not encourage filing of processes endlessly by parties, I am however, of the humble view that every case has to be considered according to its given set of facts and circumstances. Appellant is confronted with new facts. In originating summons proceedings, the court will only rely on the affidavit evidence as witnesses will not be called. Therefore Appellant would have no other opportunity to controvert those new facts introduced by the respondents. Obviously Appellant would be prejudiced if its right to file further counter-affidavit to counter the new facts is foreclosed. Rules of court are made to help the cause of justice and not to defeat justice. See: U.T.C. Nig. Ltd. v. Pomotei (1989) 2 NWLR (pt. 103) 244. Since the entire action is dependent on affidavit evidence the learned trial judge ought to have carefully assessed the effect of striking out the process. I am therefore of the humble view that where new facts are introduced in a further affidavit, the opposing party is entitled to file a further counter affidavit especially when hearing is yet to commence. In other words, a further affidavit cannot therefore be said to be the last permissible process as erroneously held by the learned trial judge.’
‘Having regard to the provisions of order 3 Rule 8 and 17 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules, 2004 which deals with procedure relating to originating summons and the reasons stated by me in this judgment I am of the humble view that the learned trial judge wrongly struck out the further counter-affidavit’]
.
.
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✓ DECISION:
‘On the whole and for the reasons stated hereinabove, I hold that this appeal is meritorious and succeeds. Appeal allowed. The Ruling of the High Court of Lagos State delivered on 26th June, 2008 by Pedro J. is hereby set aside. There shall be N30,000.00 costs assessed in favour of the Appellant.’
➥ FURTHER DICTA:
⦿ NOTICE OF OBJECTION IN BRIEF DOES NOT PREVENT COUNSEL FROM MOVING SAME IN LIMINE
Being a preliminary objection to the competence of a ground of appeal, the objection should have been by motion of notice before the hearing of the appeal so that the arguments on it can be heard by the court. while notice of objection may be given in the brief it does not dispense with the need for the respondent to move the court at the hearing for the relief prayed for. See: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 283 at 297 and Okpokori v. Okpokori (2000) 3 NWLR (pt. 649) 461 at 471. In the instant case respondent did not raise and argue the notice of objection at the oral hearing of the appeal. It is apparent that the provisions of order 10 Rule 1 of the Court of Appeal Rules, 2007 which is in pari materia with order 10 Rule 1 of the court of Appeal Rules, 2011 have not been complied with. I agree with the submission of appellant’s counsel that issue 2 is incompetent. Following the decision of the apex court and this court in the authorities cited (supra), I hold that issue 2 of the respondents’ brief is not properly before me and ought to be struck out. — A. G. Mshelia JCA.
- THE COURT CAN SUO MOTO DRAW COUNSEL’S ATTENTION TO AN INCOMPETENT GROUND OF APPEAL
This court can suo motu draw the attention of appellant’s learned counsel to an incompetent ground of appeal. See: Abubukar v. Joseph (2008) (Pt. 1104) 307 at 348. However, parties will have to be invited to address the court on the issue. Thus on 14/6/11 this court invited both counsel to re-address us on the competency of ground 2 of the notice of appeal. — A. G. Mshelia JCA. - JURISDICTION IS AN ISSUE OF LAW THAT CAN BE RAISED WITHOUT LEAVE
It is trite that issue of jurisdiction is an issue of law which can always be raised without leave. — A. G. Mshelia JCA. - RELIEF MUST BE CLEAR AND DEVOID OF SPECULATION
I have carefully examined the Respondents’ notice of objection reproduced supra. The relief is inelegantly couched. Every relief must be clear, precise and quantifiable. It must be devoid of speculation. See: Emmanuel Debayo v. Doherty (2009) 1 NWLR (Pt. 1123) 505. — A. G. Mshelia JCA. - MEANING OF AND DETAILS ON AFFIDAVIT
It has to be borne in mind that proceedings in originating summons are mainly by affidavit evidence. Appellant had contended that it filed the further counter-affidavit to counter the new facts introduced by the Respondents in paragraph 4 (m) of their further affidavit. The Supreme Court in Josein Holding Limited v. Lomamead Limited (1995) 1 NWLR (Pt. 371) 254 at 265 defined “an affidavit” as a statement of fact which the maker or deponent swears to the best of his knowledge, inform action and belief.” An affidavit by its nature is documentary evidence of the facts deposed to in it. See: Lamidi busari & Ors. v. Yinusa Goriola Oseni & Ors. (1992) 4 NWR (pt. 237) 557. It is evidence on oath. The law is trite that facts in an affidavit not challenged, not contradicted and not controverted by a party are deemed to be admitted by him unless such facts on the face of them will lead to absurdity if accepted as being the truth of what they try to establish. The Supreme Court in Badejo v. Federal ministry of Education (1996) 8 NWLR (pt. 464) 15 at 42 paragraphs E – F held as follows: –
“It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts, and the other party does not file a counter-affidavit or a reply to the counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. In the instant case, those paragraphs which disclosed that the interview for admission into Federal Government College had already taken place on 8th October, 1988 were not denied- They are therefore deemed admitted”.
See also Alagbe v. Abimbola (1978) 2 SC 39; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at 657; Maisaje v. Hasssan (2004) 11 NWLR (Pt.883) 181; Oforlete v. State (2000) 12 NWLR (pt.681) 415; Olorunfemi v. Asho (2000) 12 NWLR (Pt. 643) 143; Ezeanah v. Attah (2004) 7 NWLR (Pt. 873) 648 and Long-John v. Black (1996)6 NWLR (Pt. 555) 524.
Furthermore in another related case of Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489 at 549 the Supreme Court stated thus:-
“In actions initiated by originating summons, the affidavits filed by the parties in the matter take the place of pleadings and so any material paragraphs of the affidavit not specifically denied are taken as having been admitted, that is an unchallenged evidence upon which the, court could act. As in pleadings the denial must not be evasive but frontal.”
All these authorities cited supra express the settled principle of law that where a party fails to file counter affidavit, he would be deemed to have admitted the unchallenged facts in the said affidavit. — A. G. Mshelia JCA. - FACTS IN AFFIDAVIT ARE EVIDENCE THEMSELVES
Facts deposed to in affidavit are evidence themselves and differ from averments in pleadings. In Magnusson v. Koiki (1993) 9 NWLR (Pt 317) 287 at 297 paragraphs A – B Kutigi JSC held thus:- “Affidavit evidence upon which application or motions are largely decided are not the same thing as pleadings in Civil Suit which are written statements (and not evidence) generally of facts relied upon by a party to establish his case or his thus: – answer to his opponent’s case — unlike pleadings which will have to be supported by evidence at the trial as stated earlier. ” see also Nigerian Navy v. Garnick (2006) 4 NWLR (p. 969) 69 at 112 113 paragraphs G – H. It is also note-worthy that Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004 which deals with the contents of pleadings forbids pleadings from containing evidence unlike depositions in affidavit which are evidence themselves. — A. G. Mshelia JCA. - WHERE NEW FACTS ARE RAISED IN A FURTHER AFFIDAVIT, THE RESPONDENT CAN RESPOND TO SUCH FACTS BY FILING A FURTHER AFFIDAVIT
A party who is an Applicant and intends to file a further affidavit in reply to a counter affidavit should limit himself to the issues raised in the counter affidavit. Where he imports new facts into his reply affidavit, he should expect the Respondent to react as is the case herein. Else, the new facts would be deemed admitted. — J. I. Okoro JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Adzira Gana Mshelia, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Kenneth Obisike.
⦿ FOR THE RESPONDENT(S)
O. Kalu.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
