ZENITH BANK PLC v. BANKOLANS INVESTMENTS LIMITED & ANOR
(2011)LCN/4722(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/L/946/08
RATIO
ISSUES FOR DETERMINATION: CONSEQUENCE OF FORMULATING AN ISSUE FOR DETERMINATION IN THE FORM OF A PRELIMINARY OBJECTION
In the reply brief appellant’s counsel contended that the Respondents’ purported preliminary objection which is wrongly disguised as an issue for determination failed to comply with the provisions of order 10(1) of the court of Appeal Rules, 2007 and should be struck out for being incompetent. In my opinion there is substantial merit in the contention of the appellant. It is true issue 2 as formulated is in the form of a preliminary objection. Being a preliminary objection to the competence of a ground of appeal, the objection should have been by motion or 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. It is accordingly struck out. PER ADZIRA GANA MSHELIA, J.C.A
RELIEFS: WHETHER A COURT HAS THE POWER TO AWARD TO A CLAIMANT THAT WHICH HE DID NOT CLAIM
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. PER ADZIRA GANA MSHELIA, J.C.A
AFFIDAVIT: WHAT AN AFFIDAVIT ENTAILS
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. PER ADZIRA GANA MSHELIA, J.C.A
AFFIDAVIT: EFFECT OF UNCHALLENGED OR UNCONTRADICTED FACTS IN AN AFFIDAVIT
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. PER ADZIRA GANA MSHELIA, J.C.A
WHETHER FACTS DEPOSED TO IN AN AFFIDAVIT ARE THE SAME AS AVERMENTS IN PLEADINGS
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. For clarity Order 15 Rule 2 reads:- “Every pleading shall contain a statement in a summary form of material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.” PER ADZIRA GANA MSHELIA, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC – Appellant(s)
AND
BANKOLANS INVESTMENTS LIMITED & ANOR – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Lagos State delivered by Pedro J. on 26th June, 2008 wherein the Defendant/Appellant’s 1st further counter-affidavit to the claimants/respondent’s originating summons was struck out on the ground that same is alien to the Rules.
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.
In accordance with the practice of this court both parties exchanged briefs of argument. When the appeal came up for hearing Appellant’s brief filed on 16/4/10 was adopted by Obisike Esq. and he also urged the court to allow the appeal. Respondents’ brief of argument filed on 7/5/10 was adopted by kalu Esq. who also urged the court to dismiss the appeal. A reply brief filed on 14/5/10 was also adopted by appellant’s counsel.
From the five grounds of appeal appellant distilled two issues for determination as follows: –
(a) Whether or not the Defendant/Appellant’s 1st further counter-affidavit opposing the claimants’ originating summons and written address in support of the said 1st further affidavit are processes unknown to law and therefore incompetent as the learned trial judge held? (Formulated from Grounds 1, 3 and 4 of the Notice of Appeal)
(b) Whether or not the Claimants/respondents’ Notice of Preliminary Objection is incompetent and ought to have been struck out as the Defendant/Appellant contends? (Formulated from Grounds 2 and 5 of Notice of Appeal)
The Respondents formulated three issues from the Appellant’s Notice of Appeal as follows: –
1. Whether or not the lower court was correct when it ruled that the Defendant/Appellant’s first further counter-affidavit and its supportive written address opposing the claimant’s originating summons were processes unknown to law and therefore incompetent.
2. Whether or not Grounds 2 and Relief 2 of the Appellant’s Notice of Appeal and issue 2 canvassed in the Appellant’s brief arising there from ought not to be struck out as having not been canvassed earlier in the court below.
3. And assuming your Lordships are inclined to find that all Grounds in the Notice of Appeal, are valid, whether the claimants/respondents notice of Preliminary Objection is incompetent and ought to have been struck out as the appellant contends.
In determining this appeal, I intend to adopt the issues formulated by the appellant. Respondents’ issues will be treated together with the appellant’s issues. I have noticed that issue 2 is challenging the competency of the Notice of Preliminary Objection. It is therefore appropriate to resolve the second issue first before considering the first issue. The question raised in issue 2 is whether or not the Claimants/Respondents’ Notice of Preliminary Objection is incompetent and ought to be struck out?
Appellant’s counsel contended that the Claimants/Respondents’ Notice of Preliminary Objection is unknown to the High Court of Lagos State (Civil Procedure) Rules, 2004 and therefore incompetent.
Reference was made to Order 39 Rule (1) of the High Court of Lagos State (Civil Procedure) Rules, 2004 which states that every application shall be made by motion. The word “Shall” used in the provision is mandatory. On the effect of failure to comply with a specific procedure prescribed by law for approaching the court for relief, reliance was placed on the cases of Lawani v. Oladokun (2003) 2 NWLR (Pt 804) 271 at 287 paragraphs C F and Uba v. Ekpo (2003) 12 NWLR (Pt. 834) 332 at 343. Counsel submitted that where a specific procedure is provided for, in mandatory terms, by the law or the Rules of Court, it is a question of substance and not of form. Learned counsel therefore contends that since the application was not made by motion on notice Assuming but without conceding that Claimants/Respondents, Notice of Preliminary Objection is known to the High Court of Lagos the objection is incompetent and ought to be struck out. State (Civil Procedure) Rules, 2004, the Defendant/ Appellant contends that it is nonetheless incompetent as it contains no relief capable of being granted by the court and ought to have been struck out. It was submitted that the objection and purported relief did not and do not make sense. The objection made reference to motion which did not exist. That the failure of the claimants/respondents to set out on the face of the Notice of Preliminary Objection a competent relief is fatal to the competence of the Notice of Preliminary Objection. That the learned trial judge and parties are bound by the prayer specifically sought on the face of the claimants’ preliminary objection which is incapable of being granted and therefore incompetent. It is not for counsel to the claimants/respondents to dictate to the court from the relief he seeks without amending the incompetent notice of preliminary objection. It was argued that the need for court to do substantial justice does not and cannot give fundamental and fatal defect, as in the present case. That the court has no power to grant reliefs not specifically set out on the notice of preliminary objection. That in the absence of a competent relief capable of being granted, the learned trial judge ought to have dismissed or struck out the claimants’ Notice of Preliminary Objection for being incompetent. Appellant’s counsel submitted that the learned trial judge failure to pronounce on the issues as to whether the claimants/respondents’ Notice of Preliminary objection is unknown to the High Court of Lagos State (Civil Procedure) Rules, 2004 and whether the claimants/respondents’ notice of preliminary objection contains any valid relief capable of being granted led to miscarriage of justice. That this court has the power to avoid miscarriage of justice to pronounce on issues submitted to the lower court which the lower court wrongly failed to consider and pronounce upon. Appellant’s counsel urged the court to hold that the Notice of Preliminary Objection is incompetent and ought to have been struck out.
The Respondents’ response is as canvassed under issues 2 and 3 of its brief of argument. Respondents’ counsel contended that nowhere in the said record did the Appellant canvass arguments to the effect that the preliminary objection is incompetent as not being supported by any relief prayed for. It was argued that appellant’s ground 2 and relief 2 relates to a fresh issue not canvassed at the lower court as such same cannot be entertained without leave of court. Reference was made to case of Hyppolite v. Esharevbo (1998) 11 NWLR (Pt.577) 598 at 612 paragraphs G – H wherein the court stated thus: –
“Where an issue is raised for the first time in appeal leave of court must be obtained other-wise such an issue will be incompetent”
See: Godwin v. C.A.C. (1998) 14 NWLR (Pt 584) 162 at 174 paragraphs D – E. Learned counsel urged the court to strike out Ground 2 in the Notice of Appeal and issue 2 formulated there-from in the appellant’s brief which were not matters canvassed by parties in the lower court nor did the court decide on the issues.
In the unlikely event that this court accepts the Appellant’s formulation of fresh issue having been raised at this appellate stage without leave, counsel submitted that it is trite rule of practice in any superior Court of Record in Nigeria that a party can raise a point of law by way of a Notice of Preliminary objection and a court has a duty to dispose of the preliminary issue first where raised before delving into the substantive issue. See : Onssclti v. Orji ( 1993) 3 NWLR (pt 284) 734 at 746; Saraki v. Kotoye (1992) 9 NWLR (Pt264) 156 at 191 and Omobu v. Anakwe (1997) 5 NWLR (Pt 50 6) 61 8 at 632 – 633. It is also a trite rule of law that a notice of preliminary objection being an objection on point of law need not be supported by affidavit. See : Ikene v. Anakwe (2000) 8 NWLR (Pt 669). As to the essence and object of the notice being given to the opposing party with respect to the point of law sought to be argued lies in giving adequate notice thereby enabling each party to prepare for arguments raised and this saves the opposing parry from being taken by surprise. See: Agbaka v. Amadi (1998) 11 NWLR (Pt 572) 16 at 25.
As regards the reliefs sought learned counsel submitted that there was a typographical mistake/omission from counsel who drafted the notice of preliminary objection. That the grounds of the notice of preliminary objection clearly pointed out to the fact that the appellant’s first further counter affidavit was specifically being challenged. That the lower court had the inherent jurisdiction to regularize or gloss over a mere trifle mistake in the respondents notice. See Order 5 Rule 1 (2) of the High Court of Lagos state (Civil Procedure) Rules, 2004. It was contended that the position taken by the lower court was in line with the practice of all courts in Nigeria to dispense justice based on the justice of the case rather than through the veil of technicalities. That the preliminary objection filed by the respondents raising a point of law to the validity of the Appellant’s processes is valid and competent. In the reply brief appellant’s counsel referred to page I l0 of the record of appeal to substantiate the argument that issue 2 formulated from ground 2 was raised at the lower court. That it was not a fresh issue, rather the trial judge failed to pronounce on the point of law raised before him and that occasioned gross miscarriage of justice.
In reply to the submission of respondents’ counsel under this issue counsel contended that the issue of typographical error is being raised for the first time on appeal without leave of court. That the learned trial judge neither considered nor relied on the alleged “typographical mistake /omission” in arriving at its decision. That if the claimants/respondents now want to urge this court to affirm the judgment of the lower court on grounds other than those relied upon in the decision of the court, the claimants/respondents can only do that by way of a respondents’ notice in accordance with order 9 Rule s 2,3 and 4 of the court of Court of Appeal rules, 2007. See: Udom v. E. Moheletti & Sons Ltd. (1997) 8 NWLR (Pt 516) 187 at 199. Learned counsel further submitted that the failure of the claimants/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 competence of the said notice of preliminary objection. That the ruling of the lower court was not based on the purported exercise of power under order 5 rule 1(2) of the High court of Lagos State (civil Procedure) Rules. The lower court simply failed to consider the issue of the competence of the Notice of Preliminary objection for lack of competent relief therein. Claimants/Respondents cannot urge this court to affirm the decision of the lower court on other grounds other than those relied in the decision of the lower court without respondents, notice.
Respondents’ counsel had urged the court to strike out Ground 2 of the Notice of Appeal and issue 2 formulated there-from in the appellant’s brief which were not matters canvassed by parties in the lower court nor did the court decide on the issues. In the reply brief appellant’s counsel contended that the Respondents’ purported preliminary objection which is wrongly disguised as an issue for determination failed to comply with the provisions of order 10(1) of the court of Appeal Rules, 2007 and should be struck out for being incompetent. In my opinion there is substantial merit in the contention of the appellant. It is true issue 2 as formulated is in the form of a preliminary objection. Being a preliminary objection to the competence of a ground of appeal, the objection should have been by motion or 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. It is accordingly struck out. Before resolving the appellant’s issue 2 on merit, I find it necessary to first examine the competency of the said issue. The question now is can this court under the circumstance suo motu examine the competency of appellant’s issue 2? 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. Appellant’s counsel Obisike Esq. in his submission maintained that ground 2 emanated from the decision of the lower court. That the issue raised from ground 2 is not a fresh issue but the court below failed to pronounce on the issue raised. That the complaint of the appellant that there is no competent relief asked for in the preliminary objection is an issue of jurisdiction which requires no leave of court. He referred to pages 121- 122 and 110 of the record and urged the court to hold that ground 2 is competent.
Respondent’s counsel Kalu Esq. submitted that ground 2 is not an issue earlier canvassed at the lower court and it did not arise from the decision of the lower court. See page 115 of the record. He contended that issue 2 was distilled from grounds 2 and 5 as such the argument cannot be severed. Reliance was placed on case of Korede v . Adedokun (2001) 15 NWLR (Pt. 736) 493.
In the course of adoption of the written address of 18/2/08 appellant’s counsel raised an objection that the Notice of Preliminary Objection contained no relief which the court could grant. As rightly submitted by Appellant’s counsel the trial judge did not make any pronouncement on the issue raised. I have observed that in both grounds 2 and 5 Appellant’s complaint is that the Notice of Preliminary Objection did not contain relief capable of being granted. Both grounds raised issue of law alone. It is trite that issue of jurisdiction is an issue of law which can always be raised without leave. See: Aderibigbe v. Ajboye (2009) 10 NWLR (Pt.150) 592 at 615 and Omokhafe v. Military Administrator, Edo State (2005) LRCN Vol. 1 123 page 152 at 162 paragraph F. I now hold that Appellant’s issue 2 distilled from grounds 2 and 5 is competent. Issue 2 will therefore be resolved on merit.
Issue 2 is whether or not the Claimants/Respondents’ Notice of Preliminary Objection is incompetent and ought to have been struck out as the Defendant/Appellant contends? I wish to note the Respondents. Notice of Preliminary Objection which reads as follows: –
“TAKE NOTICE that the hearing of the defendant’s 1st Further Counter Affidavit and the written address in support dated 18th day of October, 2007 by Honourable court and claimants shall apply that the motion be struck out as it is incompetent.”
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.
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. Issue 2 is accordingly resolved in favour of the Appellant.
Despite the resolution of issue 2 in favour of the Appellant which has the effect of terminating the appeal, I will still proceed to determine issue 1 on merit. While arguing this issue the learned senior counsel for the appellant contended in the brief of argument that a party served with a further affidavit has not only the right but the duty to file a further or better counter affidavit, if he disputes and does not admit the depositions therein. Reliance was placed on the case of Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15 at 42 paragraphs E- F.
Counsel submitted that Defendant/Appellant did not and does not admit the depositions in the Claimants/Respondents’ further affidavit dated 15/10/07 in support of the originating summons. That the learned trial judge was wrong in holding that the Defendant/appellant was not entitled to file a counter affidavit after being served with the claimants’ further affidavit. It was argued that a respondent in an originating summons action can file a further counter affidavit, without the leave of court, upon being served with a further affidavit, more so when the further affidavit introduces new facts. That leave is only required to file further affidavit after hearing has commenced which was not the case in the instant case. Appellant’s counsel contended that claimants’ second affidavit was headed further affidavit and not a reply affidavit. Counsel cited the case of sentinel Assurance co. Ltd v. S.G.B.N, Ltd. (1992) 2 NWLR (Pt 224) 495 at 503 paragraphs B wherein this court held that a further affidavit performs two functions to wit : –
(i) It provides additional information not available in the first main affidavit.
(ii) It provides a reply to a counter-affidavit.
Learned counsel submitted that the learned trial judge was in error to have taken the claimants’ further affidavit of 15/10/07 as a reply affidavit. That even if the further affidavit is a reply that would not stop the appellant from filing a further counter-affidavit. It was further contended that the rule of “Close of Pleadings” relied upon by the learned trial judge does not apply to claims sought on originating summons. That originating summons claims are fought on affidavit evidence which differ from averments in pleadings. See : Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287 at 297 paragraphs A – B and Nigerian Navy v. Garnick (2006) 4 NWLR (Pt 969 69 at 112 – 113 paragraphs G – A. Reference was also made to Order 15 Rule 2 of the High court of Lagos state (civil procedure) Rules, 2004.
Furthermore, appellant’s counsel submitted that in claims fought on originating summons, parties are at liberty to put in within time their “evidence” by way of affidavits and counter affidavits provided the hearing has not commenced, in which case leave of court would be required to file further affidavit after commencement of hearing.
Hearing has not commenced when the appellant filed its further counter affidavit. That to hold otherwise is to put a clog on the liberty of the parties to adduce evidence in proof of their case which is against constitutional right to fair trial. That the necessary implication of the decision of the learned trial judge is that in claims fought on originating summons under the High court of Lagos State (Civil Procedure) Rules, 2004, the Defendant/Appellant can only file one and only one counter-affidavit and no more, even where the further affidavit was served on the Defendant/Appellant. That a further affidavit attracts further counter-affidavit, moreso when the further affidavit introduces new facts as in the present case. Learned counsel referred to Order 39 Rule (1) and (a) of the High Court of Lagos State (Civil Procedure) Rules, 2004 and contended that the said order applies only to interlocutory applications by way of motions and does not apply to originating summons. Filing of affidavits and counter-affidavits in originating summons procedure are governed by Order 3 Rule 8 and Order 17 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules, 2004. That there is no provision in the High court of Lagos State (Civil Procedure) Rules, 2004 regarding originating summons action for filing of reply or further affidavit after being served with the respondents’ counter-affidavit as provided in Order 17 Rule 16 of the High Court Rules. That the Claimants/Respondents having gone outside the express provisions of the Lagos Rules to file “Further Affidavit” in support of the originating summons after receipt of the Defendant’s/Appellant’s counter affidavit, the Defendant/Appellant was entitled in law to file a further counter affidavit as it rightly did. The learned senior counsel urged the court to hold that the 1st further counter-affidavit of the Defendant/Appellant is known to law, competent, validly filed but wrongly struck out.
Respondents’ counsel commenced his argument by restating the position of the law that rules of court are meant to be obeyed because they provide support in the administration of justice. Reliance was placed on the cases of Duke v. Akanbuyo (2005) 19 NWLR Pt. 959) 130 at 142 paragraphs G – H and E.B.N. Ltd. v. Halilco (Nig) Ltd (2006) 7 NWLR (Pt 980), 568 at 581 paragraphs B C. Learned counsel contended that the lower court rightly held that the Appellant’s first further counter-affidavit was a process alien to the rules of the lower court. Counsel referred to pages 115 to 119 (particularly paragraph 3 of page 117) of the record of appeal wherein the lower court also relied on the beyond cavil statement of Kutigi JSC in the Badejo’s case (relied on by the Appellant) on consequence of filing of affidavits as being as a general rule limited to the filing of an affidavit followed by a counter affidavit and a reply to the counter affidavit. That this suit was commenced by way of originating summons which requires that pleadings be in the form of affidavit evidence. See Nwadialo on Civil Procedure in Nigeria, 2nd Edition page 237 and Order 3 Rule 8(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004. Counsel also referred to the definition of a motion and originating summons as provided in Black’s Law Dictionary, 7th Edition. Reliance was also placed on the relevant rules e.g. Order 3 Rule 5 and 8 and Order 39 Rule 1(1) (2) (3) (4) of the High Court of Lagos State (Civil Procedure) Rules, 2004. Learned counsel submitted that the position of the law is expressio unius exclusio alterius i.e. the express mention of a thing excludes the other. See: Major & Co. Ltd. v. Schroeder (1992) 2 NWLR (Pt 101) 1. It was argued that from the provisions of the High court Rules, referred to (supra) the clear sequence of filings by the parties to join issues on their affidavit pleading was for the Respondents/Claimants firstly, to file their affidavit pleadings with a supportive written address, then the Appellant is entitled to file his counter-affidavit and written address whilst thereafter the Respondents/Claimants have a right of reply on point of law in his written address and may support same with a further affidavit. That this was exactly what the respondents on their part did. Once this was done, it is trite rule of practice that pleadings of the parties are then considered to have been closed. Learned counsel contended that the clear wordings of the rules referred to supra show that there is no such provision or contemplation by the High Court Rules for a so called 1st further counter affidavit and a written address in support as purportedly filed by the Defendant. To further strengthen the submission counsel referred to Orders 15 to 18 of the high Court of Lagos State (Civil Procedure) Rules, 2004, which deals with pleadings. That the combined effect of Orders 17 and 18 deals inter alia with the sequence of filing of pleadings, including affidavit. Pleadings in the case of an originating summons is that once the Defendant/appellant files his counter affidavit and written address in response to a claimant’s originating summons pursuant to Order 17 Rule 16, as the Defendant/appellant did, the only person(s) with a right of reply is the Claimants/Respondents alone and no other person.
Furthermore, Respondents’ counsel contended that there is no such process under the High Court Rules or any other Nigerian adjectival law for that matter such as a “1st or 2nd etc. “further counter affidavit”.
That (unlike what the appellant claims as its right and duty to file a further counter affidavit upon service of a further affidavit) the records before this Honourable Court attest to the fact that the said 1st further counter affidavit was described to be in response to the claimants originating summons at the lower court and not a response to the further affidavit filed by the claimants. Counsel referred to item 10 of Table of Content pages 99 and 102 of the Record of Appeal. Learned counsel submitted that such process described as 1st further counter-affidavit to the claimants’ originating summons is a process unknown to Nigerian Law. Counsel stressed the danger of allowing this instant appeal by relying on the Supreme Court precedent on unknown court process. In Mobil Prod. (Nig) Ltd. v. Monokpo (2003) 18 NWLR (Pt 852) 346 at 433 paragraph D, the Supreme Court held as follows: –
“A court process, which is filed but not known to law, is null and void ab initio and if the court Learned counsel submitted that it is clear that the Defendant/Appellant did not observe the rules of court as to how pleadings filed by way of an application through originating summons should be filed. A fortiori, the Defendant/Appellant’s 1st further counter-affidavit and the written address in support are processes unknown to law and therefore null and void. That rules of court are clear as to how applications should be brought before it. That these rules of court must be followed and obeyed. See: Dukg v. Akngbuyo (supra) and E.B.N. Ltd. v. Halilco (Nig) Ltd. (supra). It was further submitted that the lower court had the power to strike out the Appellant’s process as being alien to the rules of the lower court. See: Amasike, v. Registrar General C.A.C. (2006) 3 NWLR (Pt 968) 462 at 506 paragraphs C – D wherein this court stated as follows: –
“The rules of court must prima facie be obeyed, and the courts have inherent jurisdiction to ensure compliance with the rules by litigants. The court can strike out any process not filed in accordance or in compliance with the relevant rules. ”
Finally, learned senior counsel urged the court to dismiss the appeal and affirm the decision of the lower court that the Appellant filed process that is unknown to Nigerian Law and the said 1st further counter affidavit and the written address are therefore incurably incompetent.
In the reply brief Appellant’s counsel responded to all the points raised in the Respondents’ brief relating to issue 1. Appellant’s counsel submitted that Respondents’ counsel did not respond to the submission of the Appellant’s counsel to the effect that paragraph 4(k) and (M) of the claimants’ Further Affidavit of 15/10/2008 did not only respond to the facts in the respondents’ counter affidavit but also introduced new facts which the Appellant was entitled to challenge and controvert. Paragraph 4(M) made against the Appellant serious allegations of intimidation, harassment and collusion between the Appellant and EFCC. That the legal consequence of the failure of the Respondent to respond to that point is that they are, in law, deemed to have conceded it as correct. See Adesanya v. Ohiewu (1993) 1 NWLR (Pt. 270) 414 wherein Nnaemeka Agu JSC, (of blessed memory) held at page 456 paragraph D – E as follows: –
“Surprisingly learned counsel for the respondents who decided to Lump all their arguments on all the issues together made no submission on that issue. He may well do well to remember that his omission to reply to the submissions by learned senior advocate for the appellant on the issue may be deemed to imply that the respondents conceded that point.”
Learned senior counsel finally urged the court to resolve issue I in favour of the appellant.
Having summarized the submissions of each counsel, I will now proceed to resolve issue No 1. The main complaint of the appellant is that the learned trial judge wrongly struck out the 1st further counter affidavit as process unknown to law though competent. As earlier stated the Respondents commenced the action at the High Court Lagos State by way of originating summons dated 18th July, 2006. The procedure is provided under Order 3 Rule 8 and Order 17 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules, 2004. For clarity I will reproduce the said Orders hereunder: –
Order 3 Rule 8 (2) provides: –
“(2) An originating summons shall be accompanied by:
(a) An affidavit setting out the facts relied upon,
(b) All the exhibits to be relied upon,
(c) A written address in support of the application.
Order 17 Rule 16 also provides: –
“A respondent to an originating summons shall “file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 21 days after service of the originating summons.”
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? The learned trial judge on page 117 of the record of appeal had this to say: –
“Having stated that the claimant/Applicant in an originating summons can fill a reply or further affidavit where that is done, pleadings in this instance by way of affidavit evidence are deemed closed. In other words, no other process is allowed except by leave of the court under special circumstances.
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.
Appellant’s complaint is that if its right to file further counter affidavit is foreclosed, it would be deemed to have admitted the new facts introduced by Respondents in paragraph a(m) of their further affidavit since proceedings in originating summons is based on affidavit evidence. What is exchanged between the parties is “evidence on oath” as opposed to “statement of bare facts.” 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.
For clarity Order 15 Rule 2 reads:-
“Every pleading shall contain a statement in a summary form of material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.”
A careful reading of the entire provisions of order 15 shows that it contemplates only action by “writ of summons” in which statement of claim, statement of defence, counter-claim and reply to the statement of defence or defence to counter claim are filed and used except as specified in Rule 18.
The learned trial judge had also relied on order 39 Rule 1 (4) and order 18 (1) of the High court of Lagos state (civil Procedure) Rules, 2004 in coming to the conclusion that Respondents, further affidavit is the last permissible affidavit. That Appellant had no right to file a further counter affidavit after being served with the claimants’ Further Affidavit. For clarity Order 39 Rule 1 (4) is reproduced hereunder as follows: –
“The applicant may on being served with the written address of the opposing party file and serve an address in reply on point of law within 7 days of being served. Where a counter-affidavit is served on the applicant he may file further affidavit.”
Order 18 Rule 1 states that where the claimant desires to make a reply, he shall file it within 14 days from service of the defence. It is my considered view that the provisions of Order 39 Rule 1 (4) and 18 Rule 1 are clear and unambiguous. The entire provision of Order 39 clearly applies only to interlocutory applications by way of motions and does not apply to originating summons. Originating summons cannot be regarded as an application. As the name implies, one is “originating” while the other is “interlocutory.” Motions generally relate to motions as a means for bringing interlocutory applications.
I wish to note that the filing of reply referred to under Order 18 has nothing to do with originating summons procedure. It deals with actions commenced by writ of summons. I agree with appellant’s counsel that the learned trial judge wrongly applied Order 39 Rule 1 (4) and 18 (1) because the matter before him relates to originating summons proceedings.
I have earlier set out the relevant rules governing originating summons proceedings. Order 3 Rule 8 and 17 Rule 16 of the High Court (Civil Procedure) Rules, 2004 deals with action commenced by originating summons. Order 17 Rule 16 clearly states that Respondent shall file his counter affidavit and written address within 21 days after service of the originating summons. It is instructive to note that there is no provision in the Lagos State High Court (Civil procedure) Rules, 2004 which expressly allows the claimant to file reply or further affidavit upon receipt of the counter affidavit. In the instant case Respondent decided to file further affidavit after being served with the counter affidavit and introduced new facts in paragraph 4 (m). The further affidavit is titled “Further Affidavit in support of originating summons dated 18th July 2006.” The Appellant in an attempt to controvert the new facts averred in paragraph 4 (m) filed a 1st Further Counter Affidavit to the originating summons dated 18th July 2006. As pointed out by the learned senior counsel to the appellant the title of the Further Affidavit was misleading. In Sentinel Assurance Co. v. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495 at 503 paragraph B the Court of Appeal spelt out functions of a further affidavit thus: –
(i) It provides additional information not available in the first main affidavit.
(ii) It provides a reply to a counter affidavit.
As earlier noted Order 3 Rule 8 and order 17 Rule 16 of the Lagos State Rules 2004 are silent as to whether reply or further affidavit could be filed by the claimant, upon being served with a counter-affidavit. Order 39(1) 4 is however very explicit as to the filing of further affidavit in interlocutory applications.
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. In the circumstance I will resolve issue 1 in favour of the Appellant.
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.
CLARA BATA OGUNBIYI, J.C.A.: It is trite that proceedings by originating summons are based on affidavit evidence in the same way writ of summons are characterised by pleadings. The entire action at hand is dependant upon affidavit evidence.
Introduction of new facts in a process is bound to trigger a response by the other party, who would be greatly prejudiced to a foreclosure avenue refusing a response to such new facts. In other words and in the case at hand, the Respondent has in a further affidavit introduced new facts which would justify the appellants’ response thereto for purpose of playing safe.
The absence of an express provision in the law and allowing the appellants to respond did not either preclude any reply or serve to operate as refusal against same. Rather it should best be left to the dictates of the situational circumstance of each case. This also should however take into consideration the laid down principle that there must be an end to litigation. The interest of the appellants in the case at hand should not as a matter of justice and fair play be prejudiced, This has been well reasoned by my brother Mshelia JCA in the lead judgment. I agree with the conclusion arrived thereat that the appeal has merit and I also allow same in terms of the orders made therein the lead judgment inclusive of that made as to costs.
JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the Judgment of my learned brother, Mshelia, JCA just delivered and I agree with her that this appeal is meritorious and ought to be allowed. My learned brother has efficiently and thoroughly dealt with all the salient issues in this appeal.
I just want to add a few words in support of the judgment.
The Apex Court has clearly stated in Badejo v Federal Ministry of Education (1996) 8 NWLR (pt 464) 15 at 42 that “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”. It follows that where an affidavit has been filed, the other party wishing to dispute the facts deposed to in the affidavit, has to file what is usually called, a counter-affidavit. On receipt of a counter affidavit, an Applicant who wishes to challenge any matter deposed to in the counter affidavit is usually entitled to file a further affidavit in reply to the counter affidavit. That is usually the procedure. See also Maiseje v Hassan (2004) 11 NWLR (Pt 883)181 and Oforlete v State (2000)12 NWLR (pt. 681) 415.
However, where as in the instant case, the applicant in his further affidavit fails to limit himself to the issues raised in the counter affidavit and brings in new and fresh issues, it is my view that the Respondent is entitled to counter the new and fresh issues raised by the Applicant, else, he would be deemed to have admitted these new issues. In paragraph 4(m) of the Respondent’s further affidavit, he has introduced a new fact. How did he expect the Respondent to react to the new fact? Or was the Applicant to close his eyes and allow it to stand? I do not think so. 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.
In the circumstance, I agree with my learned brother Mshelia, JCA that the court below was wrong in striking out the further counter affidavit of the Applicant in rebuttal of the new facts deposed to by the Respondent in his further affidavit. Having said that, I also allow this appeal. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.
Appearances
Kenneth Obisike with O. Akagha (Mrs.) and Iheoma Ahanonu (Mrs.)For Appellant
AND
O. KaluFor Respondent
