AHMED v. GOVT OF GOMBE STATE & ORS
(2021)LCN/15165(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 17, 2021
CA/G/454/2018(R)
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ALHAJI MUHAMMAD BABA AHMED Mni APPELANT(S)
And
- THE GOVERNMENT OF GOMBE STATE 2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, GOMBE STATE 3. ALHAJI UMARU BABAGORO MUHAMMAD RESPONDENT(S)
RATIO
BURDEN PLACED ON A PARTY WHO DISBELIEVES AN ASSERTION IN AN AFFIDAVIT OR COUNTER-AFFIDAVIT
The law is settled that when a party disbelieves an assertion in an affidavit or counter-affidavit, the best way to dispute/challenge it is to file a further or better affidavit to counter same, rather than attempting to do so by oral argument in Court. This is obviously because arguments cannot substitute evidence. In cases fought on affidavits, the evidence adduced before the Court is what is averred in the affidavits before the Court. Thus, where a party disagrees with or challenges the content of an affidavit and has evidence to challenge it, the only way to bring it to the attention of the Court is by way of a duly sworn affidavit – Anakpe V AG Federation (2018) LPELR-44620(CA) 10; Forson V Calabar Municipal Govt. (2003) LPELR-7273(CA) 19; Owuru V Adigwu (2017) LPELR-46763(SC); Henry Stephens Engineering Ltd V S.A. Yakubu (2009) LPELR-1363(SC). The position of the law is also settled to the effect that the failure to file a better affidavit in response to either an affidavit or counter-affidavit, makes the facts in such affidavit or counter-affidavit to remain unchallenged and uncontroverted – Watharda V Ularamu (2014) LPELR-24175(CA) 10; AG Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 743) 706; University of Ilorin V Oyalana (2001) FWLR (Pt. 83) 2193, 2206; Uzondu V Uzondu (1997) 9 NWLR (Pt. 521) 466. PER JUMMAI HANNATU SANKEY, J.C.A.
LEGAL IMPLICATION OF THE FAILURE OF A PARTY TO CONTROVERT ANY AFFIDAVIT EVIDENCE
… the legal implication of the failure of a party to controvert any affidavit evidence is clear. It is that the averments in an affidavit which have not been challenged and/or controverted, are deemed admitted. Therefore, the Court will be entitled to believe and act on any averments stated in an affidavit that have not been answered or controverted by a further or better affidavit. There is the saying that “Silence is golden”. However, such does not hold water in matters where evidence is the holy grail. In circumstances in which a party is faced with devastating averments and he chooses to remain silent, that is, by not responding to the depositions by submitting evidence at his disposal to controvert such facts, then he will reap the consequence of his ‘golden silence’, which is that he would be deemed to have admitted those grave allegations against him – Zamfara State Govt. V Greenwich Trust Ltd (2019) LPELR-49787(CA) 2, B-E per Tobi, JCA; Dana Airlines Ltd V Amiaka (2017) LPELR-43050(CA) 24-25, A-E per Georgewill, JCA; Inegbedion v. Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211. The question now is, what is the justice of this situation? Should the door be closed on the Applicant at this stage of the proceedings simply because the the rules of practice appear to limit the parties in an application to the filing of an affidavit, a counter-affidavit and a further affidavit, in a situation where a party is in possession of facts that will assist the Court in arriving at a just determination of the matter before it? I think not. His lordship, Onnoghen, CJN (Rtd) stated as much in Owuru V Adigwu (2018) 1 NWLR (Pt. 1599) 1, 24, D-H when he stated thus: “Given the above scenario, it is my view that the 1st Respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit, in response to the 1st Appellant’s counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that affidavit evidence constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted… The Court below found as a fact that the 1st Respondent failed to respond to critical facts or evidence contained in the counter affidavit of the 1st Appellant. The lower Court also found as a fact that the said failure was fatal to the case of the 1st Respondent… Contrary to the majority opinion of lower Court, the failure to controvert crucial averments in the Appellant’s counter affidavit was a fundamental omission that was fatal to the 1st Respondent’s case… It has been said time and again that by this Court that Courts must strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.” This principle of law was restated in the decision in Ogoejeofo V Ogoejeofo (2006) LPELR-2308(sc) 14, A-B. Therein, Mohammed, JSC stated – “… It is indeed the law as argued by the appellant that since the respondent had failed to file any counter affidavit to challenge the facts averred in the appellant’s affidavit in support of the preliminary objection to the competence of the respondent’s action, the unchallenged facts remained uncontroverted and therefore deemed admitted.” In the more recent decision of the apex Court in Akiti V Oyekunle (2018) LPELR-43721(CA) 7-8, F-D, Rhodes-Vivour, JSC held “I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine. Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to. See Akinsete V Akindutire (1966) 4 NSCC 157; Eboh V Oki (1974) 9 NSCC 29; National Bank (Nig) Ltd V The Are Brothers Nig Ltd (1977) 11 NSCC 382; Alagbe V Abimbola (1978) 2 SC 39.” Again, in a decision of this Court in Coscharis Technologies V Geoffrey (2018) LPELR-49322(CA) 34-36, Gumel, JCA held inter alia as follows: “… A further counter affidavit provides additional information not contained in the counter affidavit and a reply or answer to new facts raised in a further affidavit as in the instant further affidavit… The law is settled that depositions in a counter affidavit which are not challenged or controverted by the adverse party are deemed to have been admitted as true and in the same way, depositions in a further affidavit which are not challenged or controverted are deemed to have been admitted as true and the Court can act on them.” Again in Niger-Benin Transport Co. Ltd V Okeke (2005) All FWLR (Pt. 256) 1286, 1302, this Court held: “A further and better affidavit performs two main functions in the judicial process. First of all, it provides additional information not available in the first or main affidavit in support of the motion, and secondly, to provide a reply to a counter affidavit. In either case, the law requires the facts deposed to remain facts.” See also Uzodinma V Izunaso (2011) LPELR-20027(CA) 17-18, E-B; Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 748) 706, 749-750; FBN Plc V Ndarake & Sons Nig. Ltd (2009) 15 NWLR (Pt. 1164) 406, 414-415. The decisions on this issue are legion. Therefore, the upshot of the decisions is that where facts in respect of anything deposed to in an affidavit, counter-affidavit or further affidavit are not met or addressed by the other party in a further and better affidavit as the need arises, the proper conclusion to reach is that the facts stated in any such affidavit remain unchallenged. A failure to file a better affidavit to challenge and controvert the depositions in the adverse party’s affidavit may turn out to be a fatal gamble. This is because, where the depositions in an affidavit are not manifestly incredible or unbelievable, they will be acted upon by the Court. This is in tandem with the rule of practice in the filing and exchange of affidavit evidence that a party, upon being served with an affidavit containing an assertion of certain facts or a denial of a party’s allegation, disagrees with such facts, he ought to file a further affidavit to counter the assertions or the denial of the allegation. The effect of a failure to counter any averments in an affidavit is that the facts averred/deposed to therein prevail and will be acted upon by the Court. This is in accord with the principle that in civil cases, which are decided on the preponderance of evidence, the burden of proof lies on the party who would fail if no evidence is adduced – Section 137 of the Evidence Act, 2011. PER JUMMAI HANNATU SANKEY, J.C.A.
DUTY OF THE COURT FACED WITH CONFLICTING AFFIDAVIT EVIDENCE
… I am of the firm and considered view that it is still within the purview of the Court’s power and discretion to invite oral evidence from parties where necessary where there is still conflict in the affidavit evidence before it, either upon the application of parties or suo motu – Section 116 of the Evidence Act, 2011. This is because, the Court cannot resolve conflicts in affidavits on a material issue by evaluating the conflicting evidence. Any conflict in affidavit evidence ought to be countered by a further or better affidavit, either in respect of the supporting affidavit or in respect of the counter-affidavit – Arjay Ltd V Airline Management Support Ltd (2003) LPELR-555, per Onu, JSC; Falobi V Falobi (1976) 9-10 SC 1; Nigeria Army V Dunoma (2021) LPELR-52654(CA) 13, per Ndukwe-Anyanwu, JCA. PER JUMMAI HANNATU SANKEY, J.C.A.
DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE
It is trite that Courts have since moved away from the realm of technicalities to doing substantial justice. In this respect, the apex Court has, in a plethora of decisions, held that matters should be determined on their merits and not on technicalities. It must be placed on the front-burner that Rules of Court are handmaids to Justice. Therefore, while Rules are made to be obeyed, where they serve to stultify the attainment of justice, they must take a back seat. More importantly, it has oft been repeated by the apex Court, as well as by this Court, that Courts must strive to do substantial justice and avoid undue reliance on technicalities to the detriment of justice to truncate a party’s case. Therefore, Courts are more interested in substance than mere form. This is because justice can only be done if the substance of the matter is examined; for reliance on technicalities to the detriment of substantial justice leads to injustice. The days of technicality in the application of law and rules are long since spent. Technical justice has been replaced by substantial justice in our Courts. Thus, for substantial justice to be done, parties must be allowed to place before the Court all necessary materials at their disposal for the just determination of the dispute between them, without undue hindrance -Obasi V Mikson Establishment Inds. Ltd (2016) 40704(SC) 27, E, per Ngwuta, JSC; Mutual Life & General Insurance V Iheme (2010) LPELR-24698(CA) 6, E-F, per Galinje, JCA. In the immortal words of his lordship the Philosopher Jurist, Oputa, JSC, in the case ofAliu Bello V Oyo State (1986) 5 NWLR (Pt. 45) 826, 886: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of justice.” In the same vein, his lordship, Adekeye, JSC also magisterially intoned on this issue in the celebrated case of Dr. Oloruntoba-Oju V Prof. Abdul-Raheem & others (2009) LPELR-2596(SC) 17, A-D as follows: “I must repeat the clarion call that Courts nowadays denounce Judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this, all forms of technicalities which act as a detriment to the determination of the substantial issues between litigants must be shunned. While recognizing that rules of Court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately and properly determined on merit.” (Emphasis supplied) It is therefore for these reasons that I find that, in contradistinction to the submissions of learned Counsel for the 1st and 2nd Respondents, I must take heed to these decisions of the apex Court as well as the well-stated exhortation of the respected Lord Atkin in United Australia Ltd V Barclays Bank (1941) AC 1, 29, (cited with approval in the Supreme Court decision in Okonjo V Odje (1985) 10 SC 267), that: “When these ghosts of (technicalities) stand in the path of justice, clanking their medieval chains, the proper course for the Judge is to pass through them undeterred.” See alsoFajebe V Opanuga (2019) LPELR-46348(SC) 20-21, E-A, per Okoro, JSC; Inogha Mfa V Mfa Inongha (2014) LPELR-22010(SC) 17-18, D-E, per Ngwuta, JSC; Famfa Oil V AG Federation (2003) LPELR-1239(SC) 20-21, F-C, per Iguh, JSC; Ayankoya V Olukoya (1996) LPELR-668(SC) 18-19, E-B, per Adio, JSC. PER JUMMAI HANNATU SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This Ruling is predicated upon a Motion on notice filed by the Appellant on 08-12-20. Therein, the Applicant prays for the following reliefs:
a) “Leave to file Further and Better Counter affidavit to the 1st and 2nd Respondents’ affidavit in support of (sic) of 13/1/20 and Further Response to the 1st and 2nd Respondents argument on Ground 1.
b) An Order deeming the clean copies of the Further and Better Counter affidavit to the 1st and 2nd Respondents affidavit in support of (sic) 13/1/2020 and Further Response to the 1st and 2nd Respondents’ argument on Ground 1 as duly filed and served the filing fee having been paid.
c) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application is brought are –
1. “The Appellant’s Counsel was issued with Certified True Copies of the endorsement and return showing that the 1st and 2nd Respondents were served with the Appellant’s Notice and Grounds of Appeal when same was filed at the
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Registry of the lower Court.
2. The 3rd Respondent was also separately filed with the Notice and Grounds of Appeal.
3. The Respondents were also served with the Record of Appeal in this Appeal by the Bailiff of the Registry of this Honourable Court when the Record of Appeal was transmitted.
4. The Appellant/Applicant is to bring to the Notice of this Honourable Court the endorsements and returns of the Notice of Appeal and the Record of Appeal showing service of same on the Respondents.”
The motion is supported by a 5 paragraph affidavit, attached to which is Exhibit C, “the Further and Better Counter-affidavit to the 1st and 2nd Respondents affidavit in support of 13/1/2020” and “Further Response to the 1st and 2nd Respondents’ argument on Ground 1”.
In arguing the application on 13-01-21, learned Counsel for the Applicant, A.A. Sangei, Esq., urged the Court to grant the application, more so that the 3rd Respondent did not file a counter-affidavit. In addition, he contends that since the 1st and 2nd Respondents have already complied with the Judgment of the trial Court, they are merely relying on a
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technicality to oppose the application. He argues that since Courts have taken the stance that substantial justice should take precedence over technical justice, the Court should exercise its discretion in favour of the Applicant so that justice will be done. He urged the Court accordingly
In response, learned Counsel for the 1st and 2nd Respondents, M.I. Abubakar, Esq., submits that no materials have been placed before the Court to support the grant of this application. He argues that the application seeks the exercise of the discretion of the Court, which discretion can only be exercised judicially and judiciously. He argues that the affidavit in support has not in any way explained why the Applicant could not obtain and include in his earlier counter-affidavit the proofs of service now sought to be brought before the Court by this application.
Counsel further states that the 1st and 2nd Respondents’ Notice of preliminary objection was served on the Applicant since January, 2020, and their Brief of argument in which the preliminary objection was argued, was deemed duly filed and served on 09-09-20. The Applicant filed his Reply Brief of
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argument wherein he responded to the issue of lack of service raised in the objection and argued in the said Brief, and his Reply Brief was deemed filed and served on 31-09-20.
Based on these facts, Counsel submits that there is no explanation why the proofs of service now sought to be brought before the Court vide the further and better counter-affidavit, was not exhibited to their earlier counter-affidavit, so as to enable the Court to exercise its discretion in his favour. Counsel relies on the decision of this Court in Governor, Nasarawa State V Shewaza (2017) LPELR-44032(CA) 21-24, B-A to submit that Rules of Court are meant to be obeyed.
In respect of the second relief, Counsel submits that the filing of a Further Reply Brief of argument is not supported by Order 19 Rules 2, 4 and 5 of the Rules of this Court. He argues that the Applicant has no right to file any Further Reply Brief aside from the Reply Brief already filed, and relies onStanbic IBTC Plc V Finance Reporting Council (2018) LPELR-46507(CA) 6-9, B-C.
On the contention that the 1st and 2nd Respondents have already complied with the judgment of the lower Court in respect of
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the award of damages, Counsel submits that the substantive Appeal against the decision of the lower Court is only in respect of the committal of the Appellant, and not in respect of the award of damages against the 1st and 2nd Respondents. Therefore, the payment of damages by the said Respondents in compliance with the Judgment of the lower Court is immaterial as this is not an issue in the Appeal. Counsel therefore urged the Court to refuse the application.
Learned Counsel for the 3rd Respondent, F.Z. Kaatpo, Esq., on his part, states that he does not oppose the application.
RULING ON THE APPLICATION
Before making a determination of the application, it is imperative that I give a background of the history of the Appeal in order to have a better appreciation of the circumstances in which this application to file a Further and Better Counter affidavit and a Further Reply Brief has arisen.
By a Notice of Appeal filed on 25-06-18, the Applicant filed an Appeal against the decision of the High Court of Justice, Gombe State delivered on 14-06-18 by A.M. Yakubu, J. Therein, he complained on three (3) Grounds. The grounds of appeal without their
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particulars complained as follows:
1) “The lower Court erred in law when after hearing the argument of counsel to the 1st and 2nd Defendants/Judgment Debtors/Respondents and the Plaintiff/Judgment Creditor/Appellant it held that: “In the circumstances, both the substantive motion on notice of the applicant/judgment creditors and the preliminary objection filed by the 1st and 2nd resps are hereby struck out so as to allow the applicant file a motion for a relist or a fresh one before High Court No. 2.”, and which violated the Appellant’s constitutional right to fair hearing which error has occasioned a miscarriage of justice.
2) The Lower Court erred in law when it refused to hear the Appellant before deciding on the issue it raised on its own of the need to a motion to relist the previous similar motion or file a fresh motion before High Court No. 2 and thereby flagrantly violated the Appellant’s constitutional right to fair hearing which error has occasioned a miscarriage of justice.
3) The Lower Court erred in law when it breached/violated the Appellant’s constitutional right to fair hearing enshrined in
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Section 36(1) of the 1999 Constitution (as Amended) by raising the issue of relisting/filing fresh committal motion before S. Mohammed J., which error has occasioned a miscarriage of justice.”
Therefore, the Appellant, now Applicant, sought the following reliefs:
a) “An Order allowing this Appeal.
b) An Order setting aside the Ruling of the Lower Court.
c) An Order dismissing the 1st and 2nd Defendants/Judgment/Debtors/Respondents’ Preliminary Objection.
d) An Order granting the Plaintiff/Judgment Creditor/Appellant’s Committal Motion against the 3rd Defendant/Judgment/Debtor/Contempnor pursuant to Section 15 of the Court of Appeal Act.”
Following the compilation and transmission of the Record of Appeal to this Court on 16-11-18, which Record was deemed duly transmitted by this Court on 07-05-19, the Appellant’s Brief of argument was filed on 04-12-18. Upon being served, the 1st and 2nd Respondents filed a Notice of preliminary objection to the hearing of the Appeal on 13-01-20. Therein the said Respondents contended –
1. “That the Appeal is incompetent and this Honourable Court has
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no jurisdiction to entertain same and should therefore be struck out; and
2. That Particulars (c) and (d) of Ground 2 of the Appellant’s Notice of Appeal are incompetent and liable to be struck out.”
The grounds for the objection were as follows:
1) “The Notice of Appeal which is the originating process in this Appeal was not served on the 1st and 2nd Respondents; and
2) Particulars (c) and (d) of Ground 2 of the Appellant’s Notice of Appeal do not arise from the Judgment of the trial Court nor are they supported by the Record of Appeal.” (Emphasis supplied)
They supported their objection with a 6 paragraph affidavit. The 1st and 2nd Respondents filed their Brief of argument on the same date and therein, the Notice of preliminary objection and the arguments thereon were incorporated in the Brief (paragraphs 3.0 to 3.3.8 at pages 3 to 7). On the same date, the 1st and 2nd Respondents filed a “Notice by 1st and 2nd Respondents of intention to contend that the decision of the Court below be varied”. They also filed a List of Additional Authorities on 30-10-20.
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The 3rd Respondent on his part filed his Brief of argument on 28-10-19. It was subsequently amended by a “3rd Respondent’s Amended Brief of argument” filed on 13-10-20. The 3rd Respondent also filed a Motion on Notice wherein he prayed for –
“An Order striking out reliefs “(c)” and “(d)” sought for in the Notice of Appeal dated 22nd June, 2018 and filed on 25th June, 2018 (contained at pages 250-254 of the record of appeal), in Appeal No. CA/G/454/2018; for want of jurisdiction.”
There were 7 grounds for the 3rd Respondent’s application and the arguments thereon were incorporated in the 3rd Respondent’s Amended Brief of argument (paragraphs 5 to 42 at pages 2 to 16 thereof).
Upon receipt of the processes filed by the 1st and 2nd Respondents, the Appellant filed a counter-affidavit to the 1st and 2nd Respondents’ affidavit in support of the preliminary objection on 17-09-20. He also filed a Reply Brief on 17-09-20 and another on 26-10-20. This is the state of Briefs of argument and other Court processes filed in respect of the Appeal and the interlocutory applications arising therefrom, before the present application under consideration was filed.
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The question that is requiring of an answer is: whether, in the light of the Rules of this Court and the inherent power of the Court, this Court can at this stage of the proceedings in the exercise of the Court’s discretion, grant the Appellant’s application seeking for leave to file a Further Counter-affidavit as well as a Further Reply (Response) to the 1st and 2nd Respondents’ arguments on Ground 1 of the objection contained in the 1st and 2nd Respondents’ Brief of argument.
The law is settled that when a party disbelieves an assertion in an affidavit or counter-affidavit, the best way to dispute/challenge it is to file a further or better affidavit to counter same, rather than attempting to do so by oral argument in Court. This is obviously because arguments cannot substitute evidence. In cases fought on affidavits, the evidence adduced before the Court is what is averred in the affidavits before the Court. Thus, where a party disagrees with or challenges the content of an affidavit and has evidence to challenge it, the only way to bring it to the attention of the Court is by way
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of a duly sworn affidavit – Anakpe V AG Federation (2018) LPELR-44620(CA) 10; Forson V Calabar Municipal Govt. (2003) LPELR-7273(CA) 19; Owuru V Adigwu (2017) LPELR-46763(SC); Henry Stephens Engineering Ltd V S.A. Yakubu (2009) LPELR-1363(SC).
The position of the law is also settled to the effect that the failure to file a better affidavit in response to either an affidavit or counter-affidavit, makes the facts in such affidavit or counter-affidavit to remain unchallenged and uncontroverted – Watharda V Ularamu (2014) LPELR-24175(CA) 10; AG Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 743) 706; University of Ilorin V Oyalana (2001) FWLR (Pt. 83) 2193, 2206; Uzondu V Uzondu (1997) 9 NWLR (Pt. 521) 466.
In the instant case, the 1st and 2nd Respondents filed an affidavit of six paragraphs in support of their preliminary objection to the hearing of the Appeal. The Appellant, now Applicant, responded by filing a counter-affidavit of five paragraphs challenging the facts deposed to in the Respondent’s affidavit. He now seeks the leave of Court to file a Further and better counter-affidavit to bring in further facts and documents to buttress
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his challenge of the facts contained in the 1st and 2nd Respondents’ affidavit. This is the point of disputation. Learned Counsel for the 1st and 2nd Respondents has contended that by the Rules of this Court, the Applicant has no further right to file a further and better counter-affidavit to his affidavit, having already filed a counter-affidavit.
In this vein, I have examined Order 6 Rule 1 of the Court of Appeal Rules, 2016 which provides –
“1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.”
More pertinent to this set of facts is Order 10 Rule 1 of the Rules (supra). It provides –
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
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Thus, it is apparent that the Rules are silent on the filing of a counter affidavit and a Further affidavit. It is however correct that by rules of practice, a party is entitled to respond to an applicant’s affidavit by way of a counter-affidavit, and thereafter, an applicant may file a further and better affidavit responding to the facts deposed to therein. Thus, matters fought on affidavit evidence usually close with the filing of an affidavit, counter-affidavit and further and better affidavit. In other words, the filing of a further and better counter-affidavit is somewhat unusual. That is not however to say that it is illegal or not in consonance with any of the Rules of this Court.
Consequently, I am of the view that it is precisely for circumstances such as this that are not provided for or covered by law or rules of Court, that Courts have been imbued with inherent power in Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which enable the Court to do substantial justice in any given situation that is not specifically provided for by Law, Rules of Court, Practice Directions and the like. It provides –
“6. (6) The judicial powers vested in accordance with the foregoing provisions of
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this section –
(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law;”
The Court can therefore exercise its inherent power and discretion where there are sufficient materials placed before it to do so, in the overriding interest of doing substantial justice, as opposed to technical justice.
Thus in summary, the facts leading to this application as set out above, are that the Applicant filed an Appeal against the Ruling of the High Court of Justice, Gombe State delivered on June 14, 2018. After the Record of Appeal had been duly compiled and transmitted to this Court, he filed his Appellant’s Brief of argument and it was served on all the Respondents. The 1st and 2nd Respondents responded by filing a Notice of preliminary objection to the hearing of the Appeal. The crux of their objection is that they were neither served with the Notice and Grounds of Appeal nor with the Record of Appeal. They supported the objection with a sworn affidavit wherein they deposed to facts to buttress their contention of lack of service of the originating processes of the
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Appeal on them. It goes without saying that by this, the 1st and 2nd Respondents raised a jurisdictional issue that goes to the root of the Appeal.
Upon being served the Notice of preliminary objection, the Appellant filed a counter-affidavit wherein he vociferously contested those facts, and contended instead that the 1st and 2nd Respondents had been duly served those originating processes, as well as the Record of Appeal. In order to bring documentary evidence of this to the notice of the Court, he filed this Motion on notice now under consideration seeking the leave of Court to bring before the Court further and better evidence in substantiation of the depositions contained in his earlier counter-affidavit stating that, contrary to their contention, the 1st and 2nd Respondents were duly served with the originating processes of the Appeal. This is the bone of contention. Whereas, the Rules of this Court go no further, than providing for the filing of an affidavit in support of an application, the filing of responses in the form of a counter affidavit and a further and better affidavit are the norm by rules of practice.
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However, the legal implication of the failure of a party to controvert any affidavit evidence is clear. It is that the averments in an affidavit which have not been challenged and/or controverted, are deemed admitted. Therefore, the Court will be entitled to believe and act on any averments stated in an affidavit that have not been answered or controverted by a further or better affidavit.
There is the saying that “Silence is golden”. However, such does not hold water in matters where evidence is the holy grail. In circumstances in which a party is faced with devastating averments and he chooses to remain silent, that is, by not responding to the depositions by submitting evidence at his disposal to controvert such facts, then he will reap the consequence of his ‘golden silence’, which is that he would be deemed to have admitted those grave allegations against him – Zamfara State Govt. V Greenwich Trust Ltd (2019) LPELR-49787(CA) 2, B-E per Tobi, JCA; Dana Airlines Ltd V Amiaka (2017) LPELR-43050(CA) 24-25, A-E per Georgewill, JCA; Inegbedion v. Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211.
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The question now is, what is the justice of this situation? Should the door be closed on the Applicant at this stage of the proceedings simply because the the rules of practice appear to limit the parties in an application to the filing of an affidavit, a counter-affidavit and a further affidavit, in a situation where a party is in possession of facts that will assist the Court in arriving at a just determination of the matter before it? I think not.
His lordship, Onnoghen, CJN (Rtd) stated as much in Owuru V Adigwu (2018) 1 NWLR (Pt. 1599) 1, 24, D-H when he stated thus:
“Given the above scenario, it is my view that the 1st Respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit, in response to the 1st Appellant’s counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that affidavit evidence constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted… The Court below found as a fact that the 1st Respondent failed to respond to critical facts or evidence contained in the counter affidavit of the 1st
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Appellant. The lower Court also found as a fact that the said failure was fatal to the case of the 1st Respondent… Contrary to the majority opinion of lower Court, the failure to controvert crucial averments in the Appellant’s counter affidavit was a fundamental omission that was fatal to the 1st Respondent’s case… It has been said time and again that by this Court that Courts must strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.”
This principle of law was restated in the decision in Ogoejeofo V Ogoejeofo (2006) LPELR-2308(sc) 14, A-B. Therein, Mohammed, JSC stated –
“… It is indeed the law as argued by the appellant that since the respondent had failed to file any counter affidavit to challenge the facts averred in the appellant’s affidavit in support of the preliminary objection to the competence of the respondent’s action, the unchallenged facts remained uncontroverted and therefore deemed admitted.”
In the more recent decision of the apex Court in Akiti V Oyekunle (2018) LPELR-43721(CA) 7-8, F-D, Rhodes-Vivour, JSC held -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine. Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to. See Akinsete V Akindutire (1966) 4 NSCC 157; Eboh V Oki (1974) 9 NSCC 29; National Bank (Nig) Ltd V The Are Brothers Nig Ltd (1977) 11 NSCC 382; Alagbe V Abimbola (1978) 2 SC 39.”
Again, in a decision of this Court in Coscharis Technologies V Geoffrey (2018) LPELR-49322(CA) 34-36, Gumel, JCA held inter alia as follows:
“… A further counter affidavit provides additional information not contained in the counter affidavit and a reply or answer to new facts raised in a further affidavit as in the instant further affidavit… The law is
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settled that depositions in a counter affidavit which are not challenged or controverted by the adverse party are deemed to have been admitted as true and in the same way, depositions in a further affidavit which are not challenged or controverted are deemed to have been admitted as true and the Court can act on them.”
Again in Niger-Benin Transport Co. Ltd V Okeke (2005) All FWLR (Pt. 256) 1286, 1302, this Court held:
“A further and better affidavit performs two main functions in the judicial process. First of all, it provides additional information not available in the first or main affidavit in support of the motion, and secondly, to provide a reply to a counter affidavit. In either case, the law requires the facts deposed to remain facts.”
See also Uzodinma V Izunaso (2011) LPELR-20027(CA) 17-18, E-B; Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 748) 706, 749-750; FBN Plc V Ndarake & Sons Nig. Ltd (2009) 15 NWLR (Pt. 1164) 406, 414-415. The decisions on this issue are legion.
Therefore, the upshot of the decisions is that where facts in respect of anything deposed to in an affidavit, counter-affidavit or further
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affidavit are not met or addressed by the other party in a further and better affidavit as the need arises, the proper conclusion to reach is that the facts stated in any such affidavit remain unchallenged. A failure to file a better affidavit to challenge and controvert the depositions in the adverse party’s affidavit may turn out to be a fatal gamble. This is because, where the depositions in an affidavit are not manifestly incredible or unbelievable, they will be acted upon by the Court. This is in tandem with the rule of practice in the filing and exchange of affidavit evidence that a party, upon being served with an affidavit containing an assertion of certain facts or a denial of a party’s allegation, disagrees with such facts, he ought to file a further affidavit to counter the assertions or the denial of the allegation. The effect of a failure to counter any averments in an affidavit is that the facts averred/deposed to therein prevail and will be acted upon by the Court. This is in accord with the principle that in civil cases, which are decided on the preponderance of evidence, the burden of proof lies on the party who would fail if no evidence is adduced – Section 137 of the Evidence Act, 2011.
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Thus, applying the principles of law to the instant case, where the Applicant has stated that he has in his possession documentary evidence with which to controvert the facts deposed to in the 1st and 2nd Respondents’ affidavit, he should certainly be allowed to present it to the Court. The only way to do so in these proceedings is by filing a further counter-affidavit and exhibiting such documentary evidence along with it.
Furthermore, I am of the firm and considered view that it is still within the purview of the Court’s power and discretion to invite oral evidence from parties where necessary where there is still conflict in the affidavit evidence before it, either upon the application of parties or suo motu – Section 116 of the Evidence Act, 2011. This is because, the Court cannot resolve conflicts in affidavits on a material issue by evaluating the conflicting evidence. Any conflict in affidavit evidence ought to be countered by a further or better affidavit, either in respect of the supporting affidavit or in respect of the counter-affidavit –
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Arjay Ltd V Airline Management Support Ltd (2003) LPELR-555, per Onu, JSC; Falobi V Falobi (1976) 9-10 SC 1; Nigeria Army V Dunoma (2021) LPELR-52654(CA) 13, per Ndukwe-Anyanwu, JCA.
I believe that the point has been loudly and strenuously made by appellate Courts (as reflected in the above-cited decisions) that where a party, (an applicant or a respondent), fails to file an affidavit, counter-affidavit or further affidavit to challenge or controvert the averments in the adverse party’s affidavit, they will invariably be taken or deemed as admitted; and the Court will be bound to act on the unchallenged affidavit evidence. Thus, the Court, in adjudicating over matters placed before it gives prominence and proper consideration to the objective or end result of the duty of a Court, which is the attainment of justice at the end of the day, without constraints or undue restrictions based on technicalities.
It is trite that Courts have since moved away from the realm of technicalities to doing substantial justice. In this respect, the apex Court has, in a plethora of decisions, held that matters should be determined on their merits and not on technicalities. It must
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be placed on the front-burner that Rules of Court are handmaids to Justice. Therefore, while Rules are made to be obeyed, where they serve to stultify the attainment of justice, they must take a back seat.
More importantly, it has oft been repeated by the apex Court, as well as by this Court, that Courts must strive to do substantial justice and avoid undue reliance on technicalities to the detriment of justice to truncate a party’s case. Therefore, Courts are more interested in substance than mere form. This is because justice can only be done if the substance of the matter is examined; for reliance on technicalities to the detriment of substantial justice leads to injustice.
The days of technicality in the application of law and rules are long since spent. Technical justice has been replaced by substantial justice in our Courts. Thus, for substantial justice to be done, parties must be allowed to place before the Court all necessary materials at their disposal for the just determination of the dispute between them, without undue hindrance -Obasi V Mikson Establishment Inds. Ltd (2016) 40704(SC) 27, E, per Ngwuta, JSC; Mutual Life & General Insurance V Iheme (2010) LPELR-24698(CA) 6, E-F, per Galinje, JCA.
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In the immortal words of his lordship the Philosopher Jurist, Oputa, JSC, in the case ofAliu Bello V Oyo State (1986) 5 NWLR (Pt. 45) 826, 886:
“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of justice.”
In the same vein, his lordship, Adekeye, JSC also magisterially intoned on this issue in the celebrated case of Dr. Oloruntoba-Oju V Prof. Abdul-Raheem & others (2009) LPELR-2596(SC) 17, A-D as follows:
“I must repeat the clarion call that Courts nowadays denounce Judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this, all forms of technicalities which act as a detriment to the determination of the substantial issues between litigants must be shunned. While
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recognizing that rules of Court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately and properly determined on merit.” (Emphasis supplied)
It is therefore for these reasons that I find that, in contradistinction to the submissions of learned Counsel for the 1st and 2nd Respondents, I must take heed to these decisions of the apex Court as well as the well-stated exhortation of the respected Lord Atkin in United Australia Ltd V Barclays Bank (1941) AC 1, 29, (cited with approval in the Supreme Court decision in Okonjo V Odje (1985) 10 SC 267), that:
“When these ghosts of (technicalities) stand in the path of justice, clanking their medieval chains, the proper course for the Judge is to pass through them undeterred.”
See alsoFajebe V Opanuga (2019) LPELR-46348(SC) 20-21, E-A, per Okoro, JSC; Inogha Mfa V Mfa Inongha (2014) LPELR-22010(SC) 17-18, D-E, per Ngwuta, JSC; Famfa Oil V AG Federation (2003) LPELR-1239(SC) 20-21, F-C, per Iguh, JSC; Ayankoya V Olukoya (1996) LPELR-668(SC) 18-19, E-B, per Adio, JSC.
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Finally, in respect of the second relief sought in the application to file a further response in view of the evidence sought to be introduced by the further and better counter-affidavit, I agree with learned Counsel for the 1st and 2nd Respondents that by Order 19 Rules 2, 4 and 5 of the Rules of this Court, no provision is made for such. However, this Court is invested with power under Order 20 Rule 2 of the Court of Appeal Rules, 2016 to direct a departure from these Rules anywhere this is required in the interest of justice.
In the light of all the above findings, I find merit in the application. It is granted as prayed in these terms:
1. Leave is granted the Applicant to file a Further and Better counter-affidavit to the 1st and 2nd Respondents’ affidavit in support of their Notice of preliminary objection.
2. Leave is also granted the Applicant to file a Further response to the 1st and 2nd Respondents’ arguments in respect of Ground 1 of his preliminary objection as argued in the 1st and 2nd Respondents’ Brief of argument.
3. Accordingly, the clean copies of the
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Further and better counter-affidavit to the 1st and 2nd Respondents affidavit filed on January 13, 2020, as well as the Further response to the 1st and 2nd Respondents’ argument on Ground 1 of the preliminary objection, are deemed duly filed and served today, March 17, 2021, the filing fees for same having been paid.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the Ruling just delivered by my learned brother SANKEY J. C. A. I fully agree with the reasoning and conclusion therein.
This Court has wide powers under Order 20 Rule 2 of its Rules to order a departure from its rules in the interest of justice.
I think to grant this application is in the interest of justice. I therefore agree that this application has merit and should be granted.
I abide by the consequential orders in the lead judgment.
EBIOWEI TOBI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA I agree with the decision reached therein. I have nothing to add.
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Appearances:
A. Sangei, Esq. with him, S. Mohammed,Esq. For Appellant(s)
M.I. Abubakar Esq. with him, J.J. Lah Esq., SC Gombe State Ministry of Justice. – for 1st and 2nd Respondents,
F.Z. Kaatpo,Esq. -for 3rd Respondent For Respondent(s)
