ADEBIMPE REBECCA v. ATTORNEY GENERAL FEDERATION & ORS
(2010)LCN/3700(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/347/16
RATIO
COURT: TO WHAT EXTENT IS THE POWER OF A COURT TO RAISE ISSUES SUO MOTU
A Court has inherent jurisdiction to raise issues suo motu that is of its own accord but it is enjoined by law to invite the parties involved, especially the party who would likely be adversely affected by the decision, opportunity to address it on the issue so raised before deciding it one way or the other.
The Apex Court reiterated the above general rule in the case of AKEREDOLU v. ABRAHAM & ORS(2018) LPELR-44067(SC)(Pp. 24-26, Paras. D-A), where per Okoro JSC, it held thus:
“Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. See Oshodi & Ors v Eyifunmi & Ors (2000) 13 NWLR (pt 684) 298 at 332, Mojekwu v Iwuchukwu (2004) 11 NWLR (pt 883) 196, Odedo v PDP & Ors (2015) LPELR – 24738 (SC). See: NOBIS-ELENDU v. INEC & ORS (2015) LPELR-25127(SC); FBN v. ADEYEMI (2018) LPELR-45689(CA); and EDOSACA v. OSAKUE & ORS (2018) LPELR-44157(CA) PER JAMILU YAMMAMA TUKUR, J.C.A.
COURT: CIRCUMSTANCES WHERE A COURT WILL NOT CONSTITUTE A BREACH OF THE RULE AGAINST RAISING ISSUES SUO MOTU
It must be noted that it is not in all cases where a Judge address a point which was not expressly raised or argued by the parties to a suit that such would constitute a breach of the rule against raising issues suo motu, as the Judge is imbued with a wide range of powers and discretion in the handling of a case, to the effect that where an issue necessarily arises out of the facts of a case, then such an issue cannot be said to have been raised suo motu.
The Court in the same case of AKEREDOLU v. ABRAHAM & ORS (2018)LPELR-44067(SC)(Pp. 58-59, Paras. E-A)Per GALINJE, J.S.C., gave approval to this principle of law when it held thus:
“According to the lower Court, the trial Court was entitled to look into its file and make use of any documents contained therein to resolve issues submitted before it without calling parties for further address. I agree with the lower Court. When a Court extracts information from its file. It cannot be accused of raising issue suo motu. See Ikenta Best Nigeria Ltd vs A.G Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 642.”
See: NWANCHOR & ANOR v. AMIARA & ORS(2018) LPELR-44672(CA); CHIDI v. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR-44384(CA); and FCMB v. ACTION ALLIANCE (2018) LPELR-44445(CA).
Afortori, the principle of law to the effect that a Court must call parties to address it where it raises an issue suo motu admits of certain exceptions, one of which is where a law has an effect on the determination of the case. In such an instance, the failure of the parties to avert their mind to the implication of the law is of no moment and any decision reached via the application of the law will be unimpeachable.
The Court in YAKUBU & ANOR v. ALI & ORS(2018) LPELR-44570(CA), (Pp. 3-4, Paras. E-C),per YAHAYA, J.C.A. restated the principle thus:
“Usually when the Court raises an issue suo motu, it should afford parties through their counsel the opportunity to address on it. However this general rule has exceptions. There would be no need to call on counsel to address the Court on an issue raised suo motu by the Court – 1. When the issue relates to the Court’s own jurisdiction; 2. When both parties are not aware or had ignored a Statute which may have bearing on the case; or 3. When on the face of the record, serious questions of the fairness of the proceedings is evident. See the cases of GBAGBARIGHA Vs. TORUEMI (2013) 6 NWLR (Pt.1350) 289 at 301 311; COMPTOIR COMMERCIAL IND. LTD. Vs. O.G.S.W.C. (2002) 9 NWLR (Pt.773) 629 and M.D. KOLAWOLE & ORS. Vs. V.A.G OYO & 3 ORS (2006) 3 NWLR (Pt.966) 50.”
See: RAINSON INDUSTRIES LTD v. ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS(2014) LPELR-23771(CA).
The Supreme Court in DICKSON OGUNSEINDE VIRYA FARMS LTD v. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710(SC), held that that failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice. PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICE
TOM SHAIBU YAKUBU justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR justice of The Court of Appeal of Nigeria
Between
ADEBIMPE REBECCAAppellant(s)
AND
1. ATTORNEY GENERAL FEDERATION
2. ATTORNEY GENERAL OF LAGOS STATE
3. PERMANENT SECRETARY, FEDERAL MINISTRY OF INTERIORRespondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/1029/2015 delivered by Honourable justice MB Idris on 11th November, 2015, wherein the Court gave judgment against the Appellant.
The material facts of this appeal are that the Appellant acting on the belief that it is the Federal Government of Nigeria, acting through the 3rd Respondent that is empowered to conduct registry marriage throughout the Federal Republic of Nigeria, brought an action via an Originating Summons dated 7th July, 2015, seeking declarations confirming the aforementioned powers.
In response to the above, the 1st Respondent filed a Counter Affidavit and written address dated 2nd September, 2015. The 2nd Respondent also filed a counter affidavit dated 7/8/2015 to the originating summons. He also filed a notice of preliminary objection and a written address dated 28th September 2015. The Preliminary objection is at pages 69 78 of the record.
The 3rd Respondent also filed a counter affidavit and written address dated 28th August, 2015. A
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notice of preliminary objection and written address dated 27th August, 2015 was also filed by the 3rd Respondent (see pages 16 20 of the record).
The processes were filed and exchanged, with the trial Court taking the main matter with the objections. In a judgment dated 9th November, 2015, the Court found that the affidavit in support of the Originating Summons is incompetent for its failure to comply with the provisions of the Oaths Act, with the implication that there was no affidavit validly filed, rendering the suit incompetent. The learned trial Judge consequently struck out the suit.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated and filed on 15th December, 2015, with three grounds of appeal.
The Appellants Brief of Argument settled by Olumide Babalola of Olumide Babalola LP was filed on 8th April, 2016. The Reply Brief is dated 17th October, 2016 and filed on 18th October, 2016, but is deemed as properly filed on 24th April, 2017.
Appellants counsel formulated three issues for determination to wit:
1. Whether or not the Appellants constitutional right
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to fair hearing was violated by the trial Court when his lordship struck out the Appellants suit on an issue raised suo motu without affording the Appellant and/or the parties an opportunity to be heard on it? (Ground 1)
2. Whether the trial Court was right in striking out the Appellants suit for not complying with the provisions of 1st schedule of the Oaths Act? (Ground 3)
3. Whether or not the defective affidavit accompanying the Appellants originating summons can be amended? (Ground 2)
On the other hand, the 1st Respondents Brief of Argument settled by Mubarak Egbeyemi of the Federal Ministry of justice, Marina-Lagos, was filed on 10th October, 2016 but deemed properly filed on 24th April, 2017.
1st Respondents counsel distilled three issues for determination to wit:
1. Whether the Trial Judge was right to have struck out the suit on an issue raised suo motu without hearing the parties submission on the issue?
2. Whether the Trial Court was right in striking out the Appellants suit for not complying with the provisions of the Oaths Act?
3. Whether the incompetent affidavit
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can be treated as an irregularity subject to amendment?
An examination of the issues raised by counsel in this appeal reveals that they are substantially the same. I therefore adopt the issues raised by Appellants counsel for the purpose of convenience in the determination of this appeal.
ISSUE ONE:
WHETHER OR NOT THE APPELLANTS CONSTITUTIONAL RIGHT TO FAIR HEARING WAS VIOLATED BY THE TRIAL COURT WHEN HIS LORDSHIP STRUCK OUT THE APPELLANTS SUIT ON AN ISSUE RAISED SUO MOTU WITHOUT AFFORDING THE APPELLANT AND/OR THE PARTIES AN OPPORTUNITY TO BE HEARD ON IT? (GROUND 1)
Learned counsel for the Appellant argued that the learned trial Judge wrongly struck out Appellants action on the ground of defective affidavit, because it was the Court who raised the issue of defective affidavit suo motu and determined same without inviting the parties to address it on same.
He relied on: State v. Moshood Oladimeji (2003) 7 SCNJ 67; Essang v. Bank of the North (2001) 6 NWLR (Pt.709) 384; Stirling Civil Engineering (Nig) Ltd v. Ambassador Mahmood Yahaya (2005) 11 NWLR (Pt.935) 181; Shasi v. Smith (2009) Vol.12 (Pt.2) MJSC.<br< p=””>
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Counsel also argued that the failure of the trial Court to hear the Appellant on the issue constitutes a breach of the Appellants right to fair hearing.
He cited the cases of Gbgbarigha v. Toruemi (2012) 12 SC (Pt. 5) 54; and Leaders and Company v. Bamaiyi (2010) 12 SC (Pt.5) 55.
On the other hand, learned counsel for the 1st Respondent argued that the situation in this appeal falls under one of the exceptions to the principle that a Judge must invite parties to address it on an issue raised suo motu before resolving same, namely where both parties are/aware or ignored a statute which may have bearing on the case, which the Judge is duty bound to take judicial notice of.
He cited the cases of Omokuwajo v. Federal Republic of Nigeria (2013) LPELR 20184 (SC); and Ado Ibrahim & Co Ltd v. BCC Ltd (2007) All FWLR (370) 1381 at 1404.
Learned counsel also argued that the trial Court was right to have decided the suit on the issue raised suo motu because absence of the oath section in the affidavit is in violation of the Oaths Act, and the Oaths Act is Judicially Noticed by the Court under Section 122 of the Evidence Act 2011.
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He relied on UBA Plc v. Osula (2002) LPELR 7176 (CA); and AIC Ltd v. Edo State Governor & Anor (2016).
In the reply brief, learned counsel for the Appellant submitted that the 1st Respondent filed an undated brief of argument contrary to the rules of this Honourable Court and trite principles of law to the effect that an undated document is worthless, hence the brief ought to be struck out.
He relied on the following cases: Action Congress of Nigeria v. Peter & Ors (2011) LPELR-CA/EPT/EK/04/2011; Global Soap & Detergent Ind Ltd v. NAFDAC (2012) 5 NWLR (Pt.1294) 517; Fadare v. Odeyale (1995) 5 NWLR (Pt.395) 375; Sekoni v. UTC (2006) 8 NWLR (Pt.982) 283; and Ayalogu v. Josiah Agu (1998) 1 NWLR (Pt.532) 129.
He also submitted trial Courts discretion was not properly exercised as it shut out the Appellant from the Court and occasioned miscarriage of justice.
He relied on TSA Industries Ltd v. Kema Investment Ltd (2006) MJSC 1; Oyekanmi v. NEPA (2000) 12 SCNJ 75 @ 95; Jonason Triangles Ltd v. Charles Moh & Partners Ltd (2002) 15 NWLR (Pt.789) 176 at 194; Atiku v. Yola Local Government (2003) 1 NWLR (Pt.802) 487; and Irukera
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Ibiyemi v. First Bank of Nigeria (2003) 17 NWLR (Pt.848) 196.
RESOLUTION
A Court has inherent jurisdiction to raise issues suo motu that is of its own accord but it is enjoined by law to invite the parties involved, especially the party who would likely be adversely affected by the decision, opportunity to address it on the issue so raised before deciding it one way or the other.
The Apex Court reiterated the above general rule in the case of AKEREDOLU v. ABRAHAM & ORS(2018) LPELR-44067(SC)(Pp. 24-26, Paras. D-A), where per Okoro JSC, it held thus:
“Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. See Oshodi & Ors v Eyifunmi & Ors (2000) 13 NWLR (pt 684) 298 at 332, Mojekwu v Iwuchukwu (2004) 11 NWLR (pt 883) 196, Odedo v PDP & Ors (2015) LPELR – 24738 (SC).
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See: NOBIS-ELENDU v. INEC & ORS (2015) LPELR-25127(SC); FBN v. ADEYEMI (2018) LPELR-45689(CA); and EDOSACA v. OSAKUE & ORS (2018) LPELR-44157(CA)
It must be noted that it is not in all cases where a Judge address a point which was not expressly raised or argued by the parties to a suit that such would constitute a breach of the rule against raising issues suo motu, as the Judge is imbued with a wide range of powers and discretion in the handling of a case, to the effect that where an issue necessarily arises out of the facts of a case, then such an issue cannot be said to have been raised suo motu.
The Court in the same case of AKEREDOLU v. ABRAHAM & ORS (2018)LPELR-44067(SC)(Pp. 58-59, Paras. E-A)Per GALINJE, J.S.C., gave approval to this principle of law when it held thus:
“According to the lower Court, the trial Court was entitled to look into its file and make use of any documents contained therein to resolve issues submitted before it without calling parties for further address. I agree with the lower Court. When a Court extracts information from its file. It cannot be accused of raising issue suo motu. See Ikenta Best Nigeria Ltd vs A.G Rivers State
8
(2008) 6 NWLR (Pt. 1084) 612 at 642.”
See: NWANCHOR & ANOR v. AMIARA & ORS(2018) LPELR-44672(CA); CHIDI v. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR-44384(CA); and FCMB v. ACTION ALLIANCE (2018) LPELR-44445(CA).
Afortori, the principle of law to the effect that a Court must call parties to address it where it raises an issue suo motu admits of certain exceptions, one of which is where a law has an effect on the determination of the case. In such an instance, the failure of the parties to avert their mind to the implication of the law is of no moment and any decision reached via the application of the law will be unimpeachable.
The Court in YAKUBU & ANOR v. ALI & ORS(2018) LPELR-44570(CA), (Pp. 3-4, Paras. E-C),per YAHAYA, J.C.A. restated the principle thus:
“Usually when the Court raises an issue suo motu, it should afford parties through their counsel the opportunity to address on it. However this general rule has exceptions. There would be no need to call on counsel to address the Court on an issue raised suo motu by the Court – 1. When the issue relates to the Court’s own jurisdiction; 2. When both parties are
9
not aware or had ignored a Statute which may have bearing on the case; or 3. When on the face of the record, serious questions of the fairness of the proceedings is evident. See the cases of GBAGBARIGHA Vs. TORUEMI (2013) 6 NWLR (Pt.1350) 289 at 301 311; COMPTOIR COMMERCIAL IND. LTD. Vs. O.G.S.W.C. (2002) 9 NWLR (Pt.773) 629 and M.D. KOLAWOLE & ORS. Vs. V.A.G OYO & 3 ORS (2006) 3 NWLR (Pt.966) 50.”
See: RAINSON INDUSTRIES LTD v. ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS(2014) LPELR-23771(CA).
The Supreme Court in DICKSON OGUNSEINDE VIRYA FARMS LTD v. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710(SC), held that that failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice.
It had not been shown in the instant case how the decision of the learned trial Judge occasioned a miscarriage of justice. In point of fact it was not the contention of the Appellant that a miscarriage of justice thereby occurred. It is against this background that I resolved issue one against the Appellant.
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ISSUE TWO:
WHETHER THE TRIAL COURT WAS RIGHT IN STRIKING OUT THE APPELLANTS SUIT FOR NOT COMPLYING WITH THE PROVISIONS OF 1ST SCHEDULE OF THE OATHS ACT? (GROUND 3)
Learned counsel for the Appellant argued that contrary to the holding of the learned trial Judge, the Appellants omission of the phrase Oaths Act or non compliance with the 1st Schedule of Oaths Act ought not to vitiate the suit, as such a holding smacks of technical justice.
He relied on: Falae v. Obasanjo (1999) 4 WLR (Pt. 599) 435; NAL Merchant Bank v. Odeghe & Associates (2002) 7 WRN 51; and Federal Ministry of Tourism v. Eze (2006) 2 NWLR (Pt.964) 221.
Learned counsel also argued that the holding of the trial Court was based on older decisions which have been impliedly reviewed by more recent decisions and occasioned miscarriage of justice, hence ought to be reviewed by this Court.
He relied on the case of Savannah Bank v. Starite Industries (2009) 8 NWLR (Pt. 1144) 491.
Learned counsel for the 1st Respondent argued that the inclusion of oaths clause is a matter of substance, and a compulsory requirement of the Oaths Act, thus failure of the Appellant to include same
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or a variation therefore means that he did not swear an oath at all.
He relied on Sections 113, 115 and 117 of the Evidence Act; and Section 1, 13 and First Schedule to the Oath Act; Nyesom v. Peterside (2016); Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR 959 (SC); and Sheperd Masimba Kambadzi (previously referred to as SK Zimbabwe FC v. Secretary of State for Home Department (2001) LPELR-17790 (UKSC).
Learned counsel also argued that Section 120 of the Evidence Act, provides the procedure to follow where a person does not swear an oath and same was not followed in this appeal.
Learned counsel further argued that the facts of this appeal are distinguishable from the cases cited by the Appellant, because in those cases, the issues were as to the proper construction of the paragraph containing the oaths section or had to do with the propriety of variation of the words used in the Oaths Act with similar words.
He relied on AGF & Ors v. Bayawo (2000) LPELR 10409 (CA); and NNB Plc v. IBW Enterprises Nigeria Ltd (1998) 6 NWLR (554) 446.
In the reply brief, Appellants submitted that the case of Omokuwajo v.
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FRN (2013) LPELR 20184 (SC) is not applicable to this case because the facts and applicable principles are different.
The duty to ensure compliance with the Oaths Act, is on the Commissioner for Oaths and the Appellant ought not to be punished for the error.
He relied on Section 13 of the Oaths Act; The Registered Incorporated Trustees of Total Cooperative Thrift and Credit Society and Anor v. Adindu (2011) LPELR-L/649/10; Agusiobo v. Onyekwelu (2003) 14 NWLR (Pt.839) 35 @ 51; Dasofunjo v. Oni (1966) 2 All NLR 291; and Duke v. Akpabuyo Local Govt (2005) 12 SC (Pt.1) 1.
RESOLUTION
In order to correctly determine the severity of the Appellants error at trial, the first port of call, is a look at the relevant provisions of the law.
Section 1 of the Oaths Act (as amended in 2016) provides thus:
The oaths to be taken as occasion shall demand shall be the oaths set out in the First Schedule to this Act.
The relevant aspect of the Schedule which is missing from the Appellants affidavit is:
I…….. do solemnly and sincerely declare that (set out in numbered
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paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.
The combination of the two provisions of the law has been interpreted to mean that a valid oath in an affidavit is mandatorily required to start and end with the phrase from the Schedule or at the very least, a variation of same. This seems good law in my reckoning as the Oaths Act in its first section was emphatic and clearly mandated that oaths be made as provided for in the schedule. The problem with the Appellants affidavit is that same did not contain a concluding paragraph stating or at least substantially reflecting the part that states: I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.
This Court in the case of MAJEKODUNMI & ORS v. OGUNSEYE (2017) LPELR-42547 (CA), Per TSAMMANI, J.C.A., held thus:
“It is my understanding that the Evidence Act and the Oath Act deal with substantive law and not matters of mere procedure. Their provisions must therefore be complied with
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as a matter of law. Non-compliance with their provisions have the effect of rendering any evidence admitted in breach thereof invalid. Being matters of law, they could be raised at any time, even at the final address before the Court of first instance and on appeal before this Court. Their provisions, save in a few exceptions cannot be waived as once it is raised at any stage of the proceedings the Court has a duty to attend to it.”
See: GTB PLC v. ABIODUN (2017) LPELR-42551(CA); EKPENETU V. OFEGOBI & ORS (2012) LPELR-9229 (CA); and ABOLADE M & ORS v. MESSRS CHEVRON (NIG) LTD & ANOR (2017) LPELR-43203(CA).
There is no doubt that we are no longer in the regime of technical justice, but substantial justice is not conterminous with a total disregard for the statutory provisions.
See: UWAZURUIKE & ORS V. THE ATTORNEY-GENERAL OF THE FEDERATION (2013) LPELR-20392 (SC); KENTE v. ISHAKU & ORS (2016) LPELR-40788 (CA); and MONYE V. ABDULLAHI (2012) LPELR-20103 (CA).
As I have said before, the use of forms is not a strange or esoteric concept in law and the legal practice. It is indubitable that except in circumstances where the law
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providing for the use of a form provides that it cannot be modified, then slight modifications which are based on the circumstances would not affect the validity of the document produced. The failure of the Appellant in this case does not amount to modification, but an obvious disregard for the provisions of the Oaths Act and same cannot be allowed to stand.
This issue is accordingly resolved against the Appellant.
ISSUE THREE:
WHETHER OR NOT THE DEFECTIVE AFFIDAVIT ACCOMPANYING THE APPELLANTS ORIGINATING SUMMONS CAN BE AMENDED? (GROUND 2)
Learned counsel for the Appellant argued that the omission in the Appellants affidavit was that of form, not substance and the trial Judge ought to have allowed the Appellant amend same in order to do substantial justice.
He relied on the cases of C&C Ltd v. Altimate Intl Ltd (2004) 2 NWLR (Pt. 857) 274; Chukwudi Apugo v. Chidiebere Nwoke (2010) 1 NWLR (Pt.1176) 600; Lawal Osula v. UBA (2003) 5 NWLR (Pt.813) 376; and NAL Merchant Bank v. Odeghe & Associates (supra).
Learned counsel also argued that a defective affidavit could be used if it is signed before an authorised
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official, and the affidavit in question was sworn before a Principal Assistant Registrar of the trial Court, hence the trial Court was wrong to have struck it out.
Learned counsel for the 1st Respondent argued that the defect in Appellants affidavit is not a mere irregularity but a fundamental error which makes the document void as an affidavit.
He relied on the case of Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) 9 NWLR (1093) 498.
Learned counsel also argued that the amendment would only arise where there is substantial compliance with the Act and not in a case like this where there was no compliance at all.
He cited the cases of Ekpenetu v. Ofegobi & Ors (2012) LPELR 9229 (CA); Onujabe & Ors v. Idris (2011) LPELR-4059 (CA); and COP v. Agholor (2014) LPELR 23212 (CA).
Learned counsel for the Appellant submitted in the reply brief that the error in question is clearly a matter of form, not substance as seen in Section 13 of the Oaths Act.
He relied on Ejikeme v. Okonkwo (1994) 8 NWLR (Pt.362) 266; and Owosho v. Dada (1984) 7 SC 149 at 163.
RESOLUTION
It is indeed true that the
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lower Court has the discretion to grant amendment of a defective affidavit, especially in order to do substantial justice between the parties.
Section 113 of the Evidence Act 2011 provides thus:
The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.
Section 114 of the Evidence Act 2011, provides thus:
A defective or erroneous affidavit may be amended and re-sworn by leave of the Court on such terms as to time, costs or otherwise as seem reasonable.
There is nothing in the above provisions that can be interpreted to mean that once an affidavit is defective, same must be amended or places an obligation on a Judge to draw the attention of the parties to such an error and grant them time to so amend.
In a situation where a party had diligently discovered the mistake he made and sought to amend same, but the trial Judge refused to exercise his discretion in favour of such party, the decision to refuse such application may be reviewed in order to determine whether the decision was judiciously
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exercised, in line with the trite principle of law that states that this Court will only interfere with the exercise of discretion by the lower Court in limited circumstances.
See:OKOROCHA v. PDP & ORS (2014) LPELR-22058(SC); MOHAMMED v. A.G LAGOS STATE & ORS (2018) LPELR-43842(CA); and ONWUALU & ORS v. MOKWE & ORS (2018) LPELR-43531(CA).
The Appellant having prepared and presented an affidavit that is blatantly incongruous with the provisions of the Oaths Act, and did not take requisite steps to correct same at trial, cannot now be heard complaining as the Appellant has made an attempt to do in this appeal.
This Court in the case of IZEDONMWEN & ANOR. V. UBN PLC. & ANOR. (2011) LPELR-4020 (CA), (P. 63, paras. A-C) per OKORO, J.C.A, (as he then was now JSC) lent credence to the above by stating thus:
”Where a deponent allows his defective or erroneous affidavit to be used in litigation without doing anything to remedy it and it is subsequently struck out by the Court, the Court cannot be accused of dwelling in technicality. After all, justice is not only for the Plaintiff but also for the Defendant. A Court must not do
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anything to suggest that it is trying to favour or pave a way for one party against the other. That will amount to descending into the arena which is not allowed.”
In light of the above, this issue is also resolved against the Appellant.
The effect of all my findings is that the appeal fails and is consequently dismissed.
The decision of the lower Court delivered on 11th November 2015 is affirmed.
Parties to bear their costs.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the leading judgment rendered by his Lordship, JAMILU YAMMAMA TUKUR, JCA, with whom, I am in agreement to the effect that this appeal is wanting in merits. Consequently, it fails and stands dismissed.
The judgment rendered by M.B. Idris, J., (as he then was) in re – Suit No: FHC/L/CS/1029/2015, at the Federal High Court, Lagos Division on 11th November, 2015, is also affirmed by me.
Each side shall bear their own costs of the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned brother, JAMILU YAMMAMA TUKUR, JCA just
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delivered and I am in agreement with his reasoning and conclusion in dismissing the appeal as lacking in merit.
I abide by the consequential orders made thereto.
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Appearances:
Olumide BabalolaFor Appellant(s)
Abdulhafeez (State Counsel, Ministry of justice, Lagos State) for 2nd RespondentFor Respondent(s)
>
Appearances
Olumide BabalolaFor Appellant
AND
Abdulhafeez (State Counsel, Ministry of justice, Lagos State) for 2nd RespondentFor Respondent
