MICHAEL OLADIPO LABATI V. OWOEYE FAROMIPIN & ANOR
(2010)LCN/4090(CA)
(2010) LPELR-4484(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of December, 2010
CA/I/107/2000
RATIO
FORMULATION OF ISSUES FOR DETERMINATION: WHETHER AN ISSUE CAN BE FORMULATED UPON A GROUND OF APPEAL WHICH IS CONTRARY TO OR IN CONFLICT WITH THE FACTS OF THE CASE BEFORE THE TRIAL COURT
No issue can be formulated upon a ground of appeal which is contrary to or in conflict with the facts of the case before the trial court. See Alakija v. Abdulai (1998) 5SCNJ 1. or [1998] 6 NWLR (Pt.552) 1 @ 17 A-B; See also Akibu v. Oduntan (2000) 7 SCNJ 189/204 also reported in (2000) 13 NWLR (Pt.685) 446 @ 462 F where the supreme court held that any ground of appeal which does not relate to any issue decided by the court whose decision is being challenged is incompetent and must be struck out. PER CHINWE E. IYIZOBA, J.C.A.
COUNTER AFFIDAVIT: WHETHER AN AFFIDAVIT IN OPPOSITION OF OR COUNTERING THE AVERMENTS OF AN AFFIDAVIT IN AN APPLICATION SUPPORTED WITH AFFIDAVIT EVIDENCE IS A SINE QUA NON IN ANY OR EVERY CASE
The respondent clearly did not need a counter affidavit to reply on the point because all the necessary facts for the reply are there in the appellant’s affidavit. See the case of Orunlola v. Adeoye [1995) 6 NWLR (Pt. 401) 338 @ 353. Per Nsofor J.C.A.:- “I know of no rule or practice which lays it down that an affidavit in opposition of or countering the averments of an affidavit in an application supported with affidavit evidence is a sine qua non in any or every case. No. If an affidavit is self contradictory or the facts contained therein are presumed to be true and when taken together are not sufficient to sustain the prayers of the applicant, it would be, in respectful opinion needless for a respondent to swear to an affidavit in opposition. It may even be that there is nothing in the affidavit in support of an application worthwhile countering by filing an affidavit in opposition.” PER CHINWE E. IYIZOBA, J.C.A.
JUSTICE
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MICHAEL OLADIPO LABATIAppellant(s)
AND
1. OWOEYE FAROMIPIN
2. SAMUEL IKOTUNRespondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Justice B.O. Babalola of Osun State High Court, sitting at the Ilesa Division of the court. The ruling was delivered on the 27th day of April, 1999. This was sequel to a motion on notice praying the court for an order:-
(a) “Extending the time within which the plaintiff may file a reply to the 2nd defendant’s statement of Defence and to deem as properly filed the Reply to the statement of Defence filed along with this motion.
(b)To set down the case for hearing and for giving judgment against the 1st defendant in terms of the plaintiff writ of summons and statement of claim for the failure of the 1st defendant to file a defence to the claim.”
Briefly the facts that led to this appeal so far as they are material to the questions which call for determination are: – The plaintiff now appellant sued the 1st defendant and the 2nd defendant, now respondent claiming some reliefs. The appellant filed and served his statement of claim on the 1st defendant and the respondent. The respondent filed and served on all the parties his statement of defence dated 17th day of March, 1993. The 1st defendant did not file any defence and is not represented by counsel. By motion dated 20/6/94 and filed on 21/6/94 the appellant sought for an extension of time to set the suit down for hearing and for judgment against the 1st defendant for his failure to file his statement of defence. The appellant never moved this motion and for two years the case suffered several adjournments for one reason or the other. On 11/6/96, the appellant brought another motion asking for leave to amend his statement of claim.
The motion was moved without opposition and was granted by the trial court. The appellant did not take any steps to amend his statement of claim as ordered. The case again suffered several adjournments for another two years until 31/3/98 when the appellant through a new counsel filed the motion praying for the orders set out above. After Learned Counsel for the appellant had moved the motion, the respondent’s counsel without filing any counter affidavit replied opposing the motion. The Learned Trial Judge thereafter in a reserved ruling struck out the reply on the ground that it introduced an entirely new cause of action. Learned counsel for the appellant was dissatisfied with the ruling and appealed to this court. He filed four grounds of appeal from which he distilled the following three issues:-
1. Whether the learned trial judge was justified in allowing the learned counsel to the 2nd defendant to oppose the application on the points argued without filing a counter-affidavit giving prior notice of grounds of opposition to the motion and the Reply to the appellant.
2. Whether the learned trial judge was justified in striking out the reply to the statement of defence when there was no formal application before him to strike it out.
3. Whether the learned trial judge was justified in not giving the appellant a fair hearing on the matters raised by the Respondent’s Counsel on the application before the court.
The respondent formulated only one issue for determination:-
1. Having regard to the application before him, was the learned trial judge right in striking out the reply?
Before us, the learned counsel for the parties adopted their briefs of argument and relied on the submissions therein.
Ajakaiye Esq., of counsel for the appellant argued his three issues together. His contention is that the respondent did not file any counter affidavit to the motion and yet went ahead to address the court on facts, some of which were not based on the motion for extension of time but on the reply to the statement of defence. Not having filed a counter affidavit and not having come by way of a proper application, the appellant was denied fair hearing as he had no opportunity to react to the issues raised by the respondent. Counsel further contended that the trial judge did not rule on the motion moved by the appellant but went on to strike out the reply after commenting that the motion was not served on the 1st defendant. Counsel argued that the trial judge ought not to have allowed him to move the motion since one of the respondents to the motion had not been served. Finally, counsel submitted that the trial judge ought to have limited his ruling on the motion and should not have extended it to the defects in the Reply to the statement of defence in respect of which there was no application before him. In his reply, Fayokun Esq., of Counsel, submitted that in an application for an order of court extending time within which to file a Reply to a statement of defence and to deem the Reply as properly filed, one of the essential requirements on which the applicant should satisfy the court is the propriety or suitability of the Reply sought to be deemed as filed. Counsel relying on the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164 @ 172 or (1989) 5 SCNJ 71 @ 75 submitted that as a general rule of pleadings and practice where no counter-claim is filed a reply to a statement of defence is unnecessary if its sole purpose is to deny allegations contained in the statement of defence. Counsel examined the relevant rules of court and other authorities as to when a reply is necessary and submitted that in an application for an order of court extending the time within which to file a reply to a defence and to deem the reply as properly filed, the applicant must explain to the satisfaction of the court the reasons for the delay in filing the reply and must also satisfy the court that the reply which is to be deemed properly filed is in compliance with the law.
In response to appellant’s arguments, counsel submitted that the appellant predicated his issues for determination on the erroneous premise that his opposition to the reply was raised as a preliminary objection. Counsel submitted that as clearly shown in the records no such objection was raised and that his opposition to the reply was based solely on the substantive issue involved in an application of that nature. Counsel then contended that a counter affidavit was not necessary as his opposition was based on law and the facts as deposed to by the appellant.
On the appellant’s grouse that instead of making a ruling on the motion he moved, the trial judge struck out the reply, Counsel submitted that the striking out of the “Reply” is tantamount to striking out of the motion in respect of the first prayer, since the reply is the subject matter of the prayer. On fair hearing counsel submitted that the argument is not relevant as both parties to the case were duly heard on the motion. The appellant moved first and the respondent replied opposing the motion on the same day 8/3/99, after which the trial judge reserved his ruling to 27/4/99, 50 days later. On absence of service of the motion on the 1st defendant, counsel submitted that it is only the 2nd prayer on the motion paper; “to set down the case for hearing and giving judgment against the 1st defendant” that concerned the 1st defendant and that the appellant had abandoned that prayer by not proffering any argument on same following the finding by the trial judge that the motion was not served on the 1st defendant.
Before I go into the merits of this appeal, let me first deal with the objection raised by the respondent against grounds 1 and 4 of the appeal. For full appreciation of the issue, it is better to set out the grounds without their particulars:
“1.The learned trial judge erred in law in allowing the Defendants/Respondents to raise preliminary objection to the Reply to the statement of Defence filed by the plaintiff when no formal application was brought to court and when what was moved was a motion for extension of time to file reply to statement of defence and to deem as properly filed the Reply to the statement of defence filed along with the motion.
4. The ruling is against the weight of evidence.”
I agree with counsel for the respondent that the factual basis upon which ground 1 is anchored does not exist. The respondent did not raise any preliminary objection in the lower court as is shown in the record of proceedings. All he did was to reply, opposing the application for extension of time to file the reply and deeming same as properly served. No issue can be formulated upon a ground of appeal which is contrary to or in conflict with the facts of the case before the trial court. See Alakija v. Abdulai (1998) 5SCNJ 1. or [1998] 6 NWLR (Pt.552) 1 @ 17 A-B; See also Akibu v. Oduntan (2000) 7 SCNJ 189/204 also reported in (2000) 13 NWLR (Pt.685) 446 @ 462 F where the supreme court held that any ground of appeal which does not relate to any issue decided by the court whose decision is being challenged is incompetent and must be struck out. I further agree with respondent’s counsel that ground 4 complaining that the ruling is against the weight of evidence is out of place in this appeal as the only evidence before the trial court was the affidavit evidence of the appellant and so no issue for argument can be formulated upon a complaint of weight of evidence. Counsel must be deemed to have abandoned the ground as no issue was formulated on it and no argument proffered. Grounds 1 and 4 are consequently struck out.
I find the substance of this appeal rather perplexing. The facts are such that I do not understand why counsel would want to make the ruling the subject of an appeal.
Counsel filed a motion for extension of time to file a reply to the statement of defence and to deem the reply as properly filed and served. He moved the motion. The respondents counsel replied opposing the motion on two grounds; firstly that the appellant failed to explain in his affidavit the reasons for the undue delay in filing the reply and secondly that the reply itself does not comply with the law. The trial court adjourned the case for ruling and after 50 days delivered the ruling striking out the reply as incompetent. The appellant is not complaining that contrary to the view of the trial judge, the reply was indeed competent. For this reason I am not going to concern myself with the detailed argument proffered by Counsel for the respondent on the issue of competence or otherwise of the reply; except to say that his arguments are based on sound principles of law. Appellant’s complaint, inter alia is that the trial judge did not rule on his motion for extension of time but struck out a reply which was not even before him yet. No doubt, as argued by counsel for the respondent, the appellant’s misconception of the entire case resulted from his wrong impression that the respondent raised a preliminary objection to his motion. There was no such objection. Coming now from the right perspective, that the respondent merely replied to the motion, it is clear that there was no need for a counter affidavit as the respondent merely replied on issues of law as regards the competence of the reply. Apart from issues of law, a respondent can, without deposing to a counter-affidavit adopt the facts deposed to in the affidavit of the applicant to oppose the application. The appellant’s motion for extension of time to file a reply to the statement of defence was brought five years after the defence was filed in 1993, as shown in the appellant’s affidavit. Yet the appellant did not depose to any facts explaining the inordinate delay in bringing his application for extension of time. The respondent clearly did not need a counter affidavit to reply on the point because all the necessary facts for the reply are there in the appellant’s affidavit. See the case of Orunlola v. Adeoye [1995) 6 NWLR (Pt. 401) 338 @ 353. Per Nsofor J.C.A.:-
“I know of no rule or practice which lays it down that an affidavit in opposition of or countering the averments of an affidavit in an application supported with affidavit evidence is a sine qua non in any or every case. No. If an affidavit is self contradictory or the facts contained therein are presumed to be true and when taken together are not sufficient to sustain the prayers of the applicant, it would be, in respectful opinion needless for a respondent to swear to an affidavit in opposition. It may even be that there is nothing in the affidavit in support of an application worthwhile countering by filing an affidavit in opposition.”
The learned trial judge was perfectly in order to have allowed the respondent to oppose the application without a counter-affidavit. The appellant did not need any prior notice of the grounds of opposition. But he had the right to reply to the respondent’s submissions. If counsel felt he needed time for his reply, he could have asked the learned trial court for adjournment to enable him reply to the points of law raised by the respondent. There is nothing in the records and appellant did not claim that he asked for such adjournment and it was refused. On this ground, his contention that he was not given fair hearing is completely unfounded and untenable. I agree with counsel for the respondent that since these issues were neither raised nor contested before the lower court to give the trial judge the opportunity to consider them and make findings on them, the law as a general rule, subject to certain rare exceptions not applicable here, precludes the appellant from raising the points on appeal. Z.A. Koya v. United Bank for Africa Ltd (1997) 1 SCNJ 1 @22.
The appellant in his brief argued that the trial judge ought not to have heard his motion because the 1st defendant had not been served with the motion. It is obvious that the appellant is hanging on anything and everything to have this simple motion for extension of time sent back to the trial court for hearing. Is it worth the trouble? At page 26 of the record of proceedings, the trial judge observed in his ruling that “the second leg of the application seems abandoned by the Counsel for the plaintiff as he did not touch it in moving the motion and more so that the 1st defendant was not served with a copy to the application.” The second ‘leg’ of the motion prayed for an order to set down the case for hearing and to give judgment against the 1st defendant in terms of the plaintiff’s writ of summons and statement of claim for failure of the 1st defendant to file a defence to the claim. The appellant in moving his motion proffered no argument on this “leg”. As the learned trial judge rightly held, he thereby abandoned that ‘second leg’ of his motion. Why then would the appellant in this appeal complain of non service on the 1st defendant when the ruling of the court did not affect the 1st defendant and when the 1st defendant is not complaining? By not proffering any argument on the arm of the prayer concerning the 1st defendant and thereby abandoning same, the appellant impliedly withdrew against him, knowing that he had not been served. The appellant did not challenge the finding of the lower court that the second prayer against the 1st defendant had been abandoned. There is no merit in this argument. The final issue for consideration is whether the trial judge was right in striking out the Reply to the statement of defence when there was no formal application before him to strike it out. The appellant applied for extension of time to file a reply to the statement of defence and to deem as properly filed and served the reply filed with the motion. The main and only fulcrum of the appellant’s motion for extension of time is the reply to the statement of defence. If the Reply is found to be incompetent in law, would there be any sense in extending time, or would it make sense to deem an incompetent Reply properly filed and served. As I said earlier, the appellant is not quarrelling with the decision of the trial judge that the reply is incompetent. His grouse is that the reply was not before the court and that instead of ruling on his application for extension of time he struck out the reply which was not before him. With all due respect to learned counsel for the appellant, his argument is untenable. The Reply was found by learned trial judge to be incompetent. By striking out the reply, the motion for extension of time to file it and to deem it as filed had, as properly put by respondent’s counsel “been consumed and therefore extinct.” Learned Counsel for the appellant fell into this unfortunate misconception because the learned trial judge committed what I would describe as a technical error in not specifically striking out the motion on notice on the ground of incompetence of the reply, the subject matter of the application. It is all a matter of language. Setting aside this Ruling because of this minor misnomer would surly be a case of paying undue regard to technicality at the expense of the substance of the case. After all, as pointed out by counsel for the respondent, even where such an incompetent reply had not been struck out and evidence had been offered on it, the trial judge could still disregard such evidence or refuse to take cognizance of such evidence or treat it as expunged. See Akeredolu v. Akinremi (supra) @ 172 B-H
I am constrained to point out that this is one of those cases where Counsel did not take the interest of his client into account in deciding to go on appeal over the ruling of the trial judge in this case. The relief sought by the appellant in this appeal is an order setting aside the ruling and restoring the motion for extension of time to file the reply to the statement of defence on the cause list for hearing and determination. Now assuming this appeal is allowed, and the relief sought is granted, and the motion is heard and refused, this time using the proper language or even if the application succeeded, is it worth the trouble, considering the time the unfortunate appellant lost pursuing the appeal; when his counsel could have simply filed another application for extension of time with a reply that is competent in law or taken a cue from the trial judge’s ruling and amended his writ and statement of claim instead. This appeal was filed in 1999. The appellant lost 11 years pursuing this frivolous appeal. The case was initially instituted in 1992 and after 18 years; the appellant’s case is yet to take off. By now I am sure plaintiff/appellant would have completely lost faith in the judiciary. Counsel should be more circumspect and always act in the best interest of their clients. In conclusion, for all the reasons stated in this judgment the appeal lacks merit. It is accordingly dismissed. I award N5000 cost against the appellant.
NWALI SWLVESTER NGWUTA, J.C.A.: I read before now the lead Judgment just delivered by my learned brother Iyizoba JCA and I endorse the reasoning and conclusion therein.
The respondent exercised his constitutional right to reply to the motion and since he did not oppose the application on facts he did not have to file a counter affidavit. It is erroneous to say that the respondent raised a preliminary object to the motion, he merely replied and opposed the application on points of law.
The trial Court ought to have ruled on the application one way or the other. However the effect of the order striking out the proposed reply effectively determined the application as far as the 1st relief was concerned.
The 2nd relief was abandoned. Not only was the appellant given an opportunity to be heard on his own motion he actually utilised the opportunity by arguing his motion. The allegation of denial of fair hearing is baseless and misconceived.
For the above and the fuller reasons in the lead Judgment I also dismiss the appeal as devoid of merit. I endorse the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I agree.
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Appearances
J. O. A AJAKAIYE ESQ. WITH OLAJUMOKE ADEDEKE (MRS)For Appellant
AND
OLUWASEUN AJOBA ESQFor Respondent
