ALHAJI MORO SAADU OLOJE V. ALHAJI WAHAB ALAWO
(2003)LCN/1380(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2003
CA/IL/36/2001
RATIO
STATUTE OF INTERPRETATION: RULES OF INTERPRETATION
“It is the general rule of interpretation of a statute that where words of a statute are clear, the courts shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statutes in pari material in order to resolve the ambiguity or avoid doing injustice. See Mobil Oil Nigeria Ltd. v. Federal Board of Inland Revenue (1977) 3 SC. P.53. I have no doubt in my mind that the above provision is clear and unambiguous. So this court will give the words used in the provision their literal meaning.” PER PATRICK IBE AMAIZU J.C.A.
JUSTICES
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
Between
ALHAJI MORO SAADU OLOJE Appellant(s)
AND
ALHAJI WAHAB ALAWO Respondent(s)
PATRICK IBE AMAIZU J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of Adebara J., of the Kwara State High Court, sitting, at the Ilorin Division of the Court. The ruling was delivered on the 20th day of Match, 2001.
The plaintiff, now the respondent, brought an action against the defendant, now the appellant, and a company known as Crown Flour Mills Ltd. In the said action, the respondent claimed against the appellant and the Crown Flour Mills Ltd. jointly and severally as follows –
“(a) A sum of N3,970,000 (three million, nine hundred and seventy thousand naira only) for the loss of use of his vehicle at the rate of N10,000.00 (Ten thousand Naira) per day with the exception of Sundays from 8th day of August, 1998, when his Bedford Lorry with registration number KW 7296 AC was unlawfully seized by the defendants herein till 15th day of November, 1999 and a subsequent sum of N10,000 (Ten thousand Naira) per day until the said vehicle is released to the plaintiff.
(b) A sum of N50,000 (Fifty thousand naira) being the general damages for unlawful seizure of the plaintiff’s lorry.
(c) An order commanding the defendants to release the plaintiff’s vehicle with registration number KW 7296 AC forwith without further delay.”
The respondent later brought a motion praying the court for leave to amend both the writ of summons and the Statement of Claim filed in the suit.
The court granted the application. The appellant was shown in the amended writ of summons and Statement of Claim as the sale defendant in the suit. In other words, the claim against Crown Flour Mills Ltd. was dropped. Consequently, the claim as stated above was against the appellant only.
By a motion on notice dated 1st March, 2000, the respondent applied to the lower court for the following reliefs:-
“(i) An Order commanding the defendant/respondent to release, the plaintiff/applicant’s vehicle with registration number KW 7296 AC forthwith which is in her custody since 8th day of August, 1998 pending the determination of this case.
(ii) And for such further order or orders as this Honourable court may deem fit to make in the circumstances of this case.”
The motion was served on the clerk of the appellant’s counsel. The clerk failed however to bring it to the notice of the appellant’s counsel. When the motion was called up for hearing, the learned trial judge after satisfying himself that there was proper service on the appellant’s counsel, heard the submission of the learned counsel for the respondent. The learned trial judge later adjourned the motion for ruling.
Before the date fixed for ruling, the learned counsel for the appellant got to know of the motion. He filed a motion on notice seeking the following reliefs-_
“(1) Leave and order of court permitting the defendant in suit No. KWS/188/99 who is the applicant herein to defend the motion filed by the plaintiff on 1/3/2000 seeking the court’s order for the release of vehicle No. KW 7296 AC.
(2) And for such further or other orders as this Honourable court might deem fit to make.”
The motion was supported by an affidavit. Paragraph 10 thereof reads –
“That the defendant’s counter affidavit which has been filed and served on the plaintiff’s counsel is also attached herewith as Exhibit A.”
The application was granted on 2/11/2000. The learned trial judge however in dealing with the respondent’s motion for the release of his vehicle refused to take into consideration the counter affidavit filed by the appellant in respect of the motion. He granted the application of the respondent and ordered that the appellant should release to the respondent –
“the vehicle with registration number KW 7296 AC forthwith which is in her custody since 8/8/96 pending the final determination of this case.”
The appellant was dissatisfied with the ruling. She has appealed to this court. Her Notice of Appeal dated 20th March, 2001, contains two grounds of appeal. Chief Odeyemi of counsel, distilled two issues from the said two grounds. They are –
(1) Whether by virtue of the leave to defend the interlocutory Motion granted by the trial court on 2/11/2000, the appellant was not entitled to use her counter-affidavit filed on 24/3/2000 to defend the motion.
(2) Having been fully seized of the undenied facts in the statement of defence filed on 24/3/2000 whether the trial court was right in ordering the appellant to release vehicle No. KW 7296 AC to the respondent forthwith.
The respondent in his brief of argument gave notice of his intention to raise a preliminary objection at the hearing of the appeal. The notice reads –
“Take Notice that the Respondent herein named intends at the hearing of this appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you as follows:
(i) The Notice of Appeal is incompetent and the appeal should be dismissed.
Grounds upon which The Objection is Predicated
(a) The grounds of appeal are mixed law and facts and/or facts alone.
(b) The ground(s) are/is complaining about the exercise of the discretion of the learned trial judge.
(c) It is an appeal against an interlocutory decision of the lower court.”
Arguing the preliminary objection, Ogundele Esq., of counsel, submitted that the two grounds of appeal and their particulars bother on issues of mixed law and facts and/or facts simpliciter. It is his view that this is not withstanding the fact that the grounds are couched “as grounds of error in law”.
The learned counsel reminded the court that in considering the application of the applicant, the lower court must have looked at the pleadings, and they contain facts which show the correctness or otherwise of the decision.
In that case, the learned counsel opined – the grounds are of mixed law and facts or of facts simpliciter. He relied on –
Orakosimi v. Menkiti (2001) 5 SC (Part 1) 72.
Ojukwu v. Kaine (2000) 15 NWLR (Part 91) 516
Ajibade v. Pedro (1992) 5 NWLR (Part 241) 257.
The learned counsel referred to the complaint of the appellant. He submitted that a consideration involving competing facts relied upon by the parties could only be of mixed law & facts. He cited Ifediora vs. Umeh (1988) 2 NWLR (Part 74) 5.
Finally, it is the view of the learned counsel that the grounds of appeal being a complaint against an interlocutory decision, the appellant must seek and obtain leave before filing the Notice And Grounds of Appeal. He placed reliance on section 242(1) of the 1999 Constitution. And, on the following cases –
Williams v. Nwosu (1994) 3 NWLR (Part 331) 156.
Savannah Bank (Nig) Plc v. Kyatu (1998) 2 NWLR (Pt. 536) 41.
The appellant filed a Reply brief in which he dealt with the preliminary objection. Chief Odeyemi of counsel submitted that a question as to whether a trial judge rightly or wrongly rejected a counter affidavit is a question of law. He observed that the learned trial judge by citing decided authorities in support of his refusal to make use of the counter affidavit made the issue of rejection a question of law.
Chief Odeyemi, of counsel, also urged the Court to reject the submission of the respondent that all appeals on interlocutory decisions from the High Courts must be with the leave of this court. He cited the case of Aqua Ltd. v. Ondo State Sports Council (1988) 10 – 11 SCNJ 26.
Finally, Chief Odeyemi of counsel submitted that as the appeal is against the grant of a mandatory injunction, it can be brought as of right.
He relied on –
Eguamwense v. Amaghizemwen (1986) 5 NWLR (Part 41) 282
Adelekun v. Adelakun (1993) 7 NWLR (Part 308) 748.
He urged the court to overrule the preliminary objection.
I consider it neater to deal with the preliminary objection first, for if it is upheld, it will dispose of the appeal.
It is to be noted that it is not how a party to an appeal christens a ground of appeal that determines whether the ground of appeal is one of law or of facts or of mixed law & facts. The important thing is, to find out what the ground of appeal complains about. It follows that the classification of a ground of appeal by the learned counsel for the appellant as a ground of law or as a ground of mixed law & fact is not conclusive.
In the present appeal, ground 1 is described as an Error-in law. Following what I have said earlier in order to determine what the ground really is: all about, one has, not only to examine the wordings of the ground, but also the relevant particulars supplied in the said ground.
The particulars in ground one read –
“PARTICULARS
(a) The appellant was not in court when the respondent moved his motion & Ruling was reserved till 29/3/2000.
(b) By the application filed on 27/3/2000 (i.e., before the Ruling was delivered) Appellant sought leave of Court to defend the Respondent’s motion which was granted.”
I consider it convenient to stop here. It cannot be in dispute that whether “the appellant was in court when the respondent moved his motion and Ruling was reserved till 29/3/2000” is a question of fact and not of law. The same goes with (b) above.
Considering all the above, the ground at best is a ground of mixed law and fact. Ground 2 can similarly be classified.
Ogundele Esq., of counsel, relied, on the provisions of section 242(1) of the 1999 Constitution in his objection that the appellant should have sought and obtained leave before filing the Notice & Ground of Appeal.
In my view, the learned counsel did not read the provision carefully.
The provision starts thus –
“Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions………”
My understanding of the above, is that the provision depends on what is stated in section 241 for its applicability. Under section 241 of the Constitution of the Federal Republic of Nigeria, 1999,
(1) An appeal shall lie from decisions of the Federal High Court, or a High Court to the Court of Appeal as of right in the following cases –
(f) decisions made or given by the Federal High Court or a High Court-
(ii) where an injunction or the appointment of a receiver is granted, or refused.
A provision in the 1979 Constitution, similar to the above was interpreted in the case of Stella Abisola Adelakun v. Isaac Bamidel Adelakun (1993) 7 NWLR Part 308, p. 746. In that case, the court held that an appeal from an interlocutory decision of a high court on an issue relating to the grant or refusal of injunction can be brought as of right and without leave of either the Court of Appeal or of the High Court by virtue of section 220(1) of the 1979 Constitution.
Black’s Law Dictionary, Seventh Edition defines
(1) “Command’ as An Order, a directive (2) In legal position, the sovereign’s express desire that a person act or refrain from acting a certain way combined with the threat of punishment for failure to comply”.
(2) A mandatory injunction as an injunction that orders an affirmative act or mandates a specified Course of conduct………….”
The ruling of the lower court which is the Subject of this appeal is in respect of an application by the respondent for –
“An Order commanding the defendant/respondent to release the plaintiff/applicant’s vehicle with registration number KW 7296 AC forthwith which is in her custody since 8th day of August, 1998 pending the determination of this case.”
The above definitions fix the motion as being in respect of a mandatory injunction. The lower Court quite rightly considered the motion as that of mandatory injunction. See page 5, line 32 of the ruling. That being the case, an appeal on the ruling is covered by section 241 and not by section 242 of the 1999 Constitution as submitted by Ogundele Esq., of counsel. Consequently no leave is required to bring the appeal.
In that case, the preliminary objection is over ruled as having no merit. It is to be mentioned that the respondent formulated one issue for determination. The said issue is identical and same in substance with the issues formulated by the appellant.
I have considered the issues formulated by the learned counsel for the parties. It is my view that this appeal can be disposed of on this lone issue-
Whether the lower court was right in granting the respondent the relief he sought in his motion on notice dated 1st March 2000, without taking into consideration the averments in the pleadings already filed by the parties, and, the counter affidavit of the appellant which is in the court’s file.
Arguing the above issue, Chief Odeyemi, of counsel referred to –
(1) the motion on notice filed by the respondent on 1/3/2000,
(2) the Counter affidavit filed on 24/3/2000 in reply to the said motion on notice,
(3) the motion on notice filed by the appellant on 27/3/2000 for leave & order of court permitting the appellant to defend the respondent’s motion on notice filed on 1/3/2000.
It is the view of the learned counsel that as the learned trial judge made use of the averments in the counter affidavit which he also attached to his motion in arriving at the decision to grant him leave to defend the motion of the respondent, it was not necessary for him to ask for another leave to make use of the same counter affidavit in arguing the respondent’s motion.
The learned counsel referred to the case of Mrs. Regina Okafor & Ors. v. Mrs. Caroline Okafor & Ors. (2000) FWLR 17. He submitted that in order to do justice, the lower court should have looked at all the documents, outside the respondent’s affidavit in support of the motion, and make use of the facts contained therein. He reminded the court that the totality of the appellant’s case, both in her Statement of Defence and in her Counter affidavit, is that she was not the one who seized the respondent’s vehicle. And, the vehicle is not in her possession.
The learned counsel contended that the learned trial judge misapplied the following authorities viz –
1. Majorroh v. Fassassi (1986) 5 NWLR Part 40, 243 at 254.
2. Ramanu v. Jinadu (1986) 5. NWLR (Part 39) 100 at 106.
3. Ikenne v. Bosah (1997) 3 NWLR (Part 494) 484.
4. Nweke vs. Deji (1989) 2 NWLR (Part 104) 484 at 491.
and Order 8, Rule 27 of the Kwara State High Court Civil Procedure Rules 1989.
It is the learned counsel’s view that the authorities relate to a situation where an applicant in a motion before a court files an additional affidavit. He observed that in the present case, the appellant did not file an additional affidavit or an additional counter affidavit.
Chief Odeyemi, of counsel, then referred to the reliefs sought by the respondent in his Statement of Claim. He observed that the relief granted to the respondent in the motion is capable of disposing of the entire suit. This is because, the learned counsel argued, the learned trial judge in granting the motion believed the averment in the Statement of Claim that the appellant seized the respondent’s vehicle. And, that the vehicle is in the appellant’s possession.
In his reply, Ogundele Esq., of counsel, observed that he moved his motion on notice on 20/3/2000. Thereafter it was adjourned for ruling. The counter-affidavit for leave and order permitting her to defend the motion of the respondent for the release of vehicle number KW 7296 AC was dated 24/3/2000 and filed on 27/3/2000. The learned counsel reminded the court that the appellant did not ask in the motion for leave to use the said counter affidavit. In the learned counsel’s view, the appellant is bound by the reliefs which she sought in the motion. He opined that, it is not for the court to redraft or retouch the motion.
He cited the cases of –
1. Sentinel Assurance Co. Ltd. vs. SGBN Ltd. (1992) 2 NWLR (Part 224) 495.
2. Adelaja v. Alade (1999) 6 NWLR (Part 608) 544 at 561.
He reminded the court that the lower court did not grant the appellant’s counsel leave to make use of the counter affidavit. Still the learned counsel, without leave, made use of the counter affidavit in his submission. He contended that the cases of –
Raymond v. Jinadu (1986) 5 NWLR (Part 39) 100
Majarroh vs. Fassassi (1986) 5 NWLR (Part 40) 243
are authorities to the fact that it is imperative to obtain leave to use an affidavit filed after argument has commenced in a suit. He also referred to a decision of this court to wit – Mba v. Mba (1999) 10 NWLR (Part 623) 507 that it is within the discretion of the trial court, depending on the circumstances of the case to decide whether to allow such an affidavit to be used or not. He contended that the decisions of our courts show that such affidavits may be used if and when the party intending to use them asks for leave. This is because a party must explain the reason why he has not complied with the rules, if the party must be indulged. He cited the case of Williams v. Hope Rising Voluntary Fund (1982) All NLR, Part 1, at p.5.
It is the learned counsel’s submission that the lower court was right in not looking at the counter affidavit when it considered the respondent’s motion of 1/3/2000. As there is no counter affidavit, the lower court also was right in accepting the uncontroverted averments in the affidavit of the respondent.
He relied on –
Alagbe v. Abimbola (1978) 2 SC 39 at 40
West African Examination Council vs. Akinsete (1999) 13 NWLR (Part 636) 600.
It is the learned counsel’s view that the case of Mrs. Regina Okafor & Ors. v. Mrs. Caroline Okafor supra relied upon by the learned counsel for the appellant for the proposition that the learned trial judge should have looked at all the documents in the case file before arriving at his decision is not apposite to the facts of the present case.
The learned counsel further submitted that the order of the court below for the release of the vehicle based on the uncontradicted evidence of the respondent cannot lead to any injustice. He cited Okotcha vs. Herwa Ltd. (2000) 15 NWLR (Pt. 690) 258. Finally, it is the view of the learned counsel that a party should not benefit from his own wrong as that will be antithetical to justice. He urged the court to resolve the issue in favour of the respondent.
The provision of Order 8, rule 27 of the Kwara State High Court (Civil Procedure) Rules regulates the application of the appellant before the lower court. It reads –
“27. Upon the hearing of any motion the court may, on such terms as to costs and adjournment as it may deem fit, allow any additional affidavit to be used after such affidavit has been duly filed and served on the opposite side”.
It is the general rule of interpretation of a statute that where words of a statute are clear, the courts shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statutes in pari material in order to resolve the ambiguity or avoid doing injustice. See Mobil Oil Nigeria Ltd. v. Federal Board of Inland Revenue (1977) 3 SC. P.53.
I have no doubt in my mind that the above provision is clear and unambiguous. So this court will give the words used in the provision their literal meaning.
Still, in my considered view, the relevant words as they concern the present appeal are “any additional affidavit to be used”. Oxford Advanced Learner’s Dictionary defines “additional” as meaning (adj, added, extra”. The question then is, is the counter-affidavit which the appellant intended to make use of in his submission in the lower court an additional counter affidavit? The answer is No. This is because both parties agree that it is the only counter affidavit filed by the appellant.
It has to be remembered that the provision of Order 8, rule 27 does not state that an affidavit or counter affidavit filed after or during the hearing of a motion cannot be used by a party except with the leave of a court. In my considered view therefore, to hold that the appellant should have obtained leave of court before making use of the counter affidavit in the circumstances of this case is to read into the provision what is not there.
I am aware that the learned counsel referred to the following cases –
1. Majorroh v. Fassassi (supra)
2. Ramanu v. Jinadu (supra)
3. Ikenne v. Bosah (supra)
4. Nweke v. Orji (supra)
as authority that leave of court must be obtained before affidavits filed by a party after argument on a motion has commenced can be used. I read and re-read the above authorities. In my respectful view, they do not apply to the present suit, for the facts of the cases are different from the facts of the present suit.
In the present case, the appellant was on 2/11/2000 granted leave of the lower court to defend the respondent’s motion filed on 1/3/2000 seeking court’s order for the release of the vehicle with registration No. KW 7296 AC. One may ask what does the grant by the lower court of the appellant’s application for leave to defend the respondent’s motion of 1/3/2000 entail? To answer the question one has to consider first the meaning of –
(1) leave of court, and
(2) defend
The words are defined in Black’s Law Dictionary, Seventh Edition as meaning –
“leave of court” means Judicial permission to follow a non-routine procedure
“defend” means to deny, or oppose an allegation or claim.
How could the appellant have defended the motion of the respondent without using the counter affidavit which she had filed before bringing his motion for leave to defend? There is no way he could have done that.
It has to be remembered that in the motion for leave to defend the respondent’s motion, it was averred in paragraph 10 thereof as follows –
“That the defendant’s counter affidavit which has been filed and served on the plaintiff’s counsel is also attached herewith as Exhibit?
In the case of National Electoral Commission & Ors. v. Sunday O. Wodi (1989) 2 NWLR (Part 104) p. 444, it was held that annexed exhibits are part of the affidavit. On this authority, the annexed counter affidavit was part of the items which the lower court should have considered before granting the appellant’s application.
It is further to be noted that relief 10C of the Statement of Claim reads –
“An order commanding the defendant to release the plaintiff’s vehicle with registration number KW 7296 AC forthwith without further delay”.
The lower court in its Ruling on the respondent’s motion stated thus –
“…it is hereby ordered that the respondent should release to the applicant the vehicle with registration number KW 7296 AC forthwith which is in her custody since 8/8/98 pending the final determination of this case”.
The Supreme Court has warned times without number that a court in determining an application for an interlocutory injunction must be careful not to decide the substantive issue between the parties or make findings on an issue to be contested in the main case. What has the lower court done in this case if not to flout the warning of the apex court?
I am aware of the case of Woodford v. Smith (1970) CLD 1091 cited and relied upon by the learned counsel for the respondent. In that case, it was held that-
“In a proper case and special circumstances, the court can in application for interlocutory injunction grant all the reliefs in the claim”.
The above decision may well represent the law. In that case, learned counsel for the respondent has to show either in his brief of argument or in his oral submission that the interlocutory application he brought before the lower court –
(1) is a proper case to grant the reliefs in the Statement of Claim.
(2) offers special circumstances that warrant the grant of the reliefs contained in the Statement of Claim.
I am afraid, the learned counsel for the respondent did not discharge that burden before the lower court. It was not even considered by the lower court in granting the relief. In that case, the authority is not helpful to the respondent’s case.
From all I have said, the appeal succeeds. Accordingly, it is allowed.
Suit No. KWS/188/99 is remitted to the lower court for an assignment by the Chief Judge of Kwara State, High Court to another judge.
Appeal is allowed. I award N5,000.00 costs to the appellant.
SYLVANUS ADIEWERE NSOFOR, J.C.A.: I have had a preview before now in draft the leading judgment by my Lord, Amaizu, JCA just delivered. I am in full agreement with his reasoning and conclusion. I shall however say a word or two by way of an emphasis to add a coda.
The history or the antecedent facts of the case leading up to the appeal had been lucidly stated with clarity and good grace in the leading judgment. I shall, however, permit myself to refer to and make use of certain of the facts to make my comments intelligible.
Now, as the Record of Appeal clearly shows, the learned trial Judge on 2-11-2000 had granted the application by way of a Motion on Notice by the appellant praying for:-
“Leave and order permitting the defendant in Suit No.KWS/188/99 who is the applicant herein to defend the Motion filed by the plaintiff on 1/3/2000 seeking the Court’s Order for the release of vehicle No.KW7296 AC.
2. …………………………….
GROUNDS FOR APPLICATION
The defendant wants to defend the issue raised in the motion filed by the plaintiff or 1/3/2000 alleging that the vehicle was seized by the defendant and that it should be released.” Dated 24th day of March, 2000.”
The motion was supported with an affidavit. It has ten (10) paragraphs.
Paragraph 10 thereof is relevant. It read:-
“10. That the defendant’s Counter-affidavit which has been filed served on the plaintiff’s counsel is also attached herewith and marked as Exhibit A.”
What then was the application of the 1-3-2000 for which “leave and Order to defend” was granted to the appellant on 2-11-2000? It was this: a Motion on Notice for:-
“(1) An Order commanding the defendant/respondent to release the plaintiff’s vehicle with registration number KW7296 AC which is in her custody since 8th day of August 1998 pending the determination of this case.”
(2) ……………………………………………”
The motion of the 1st of March, 2000 for which “leave and order to defend” it, was heard by the learned trial Judge. In his ruling thereon, now appealed from, the learned trial Judge granted the relief sought for. Before reaching his decision, he expressed himself at page 38 of the Record of Appeal thus:
“The question now is: Could the respondent validly rely on her counter-affidavit filed on 24/3/2000……….. To untie the knut in order to unreveal the answer to this question a recourse to the rules of Court become (sic) necessary. In this regard Order 8 Rule 27 of the High Court (Civil Procedure) Rules 1989 is relevant.”
After quoting the Order and Rule (I shall advert to the Order and Rule later in the judgment, the learned trial Judge wrote at page 39 of the Record of Appeal, inter alias:-
“Since the leave of Court was never at any time sought nor obtained by the respondent to use her counter-affidavit of 24/3/2000 filed after argument of this application had commenced, I rule that the respondent cannot use the said counter-affidavit neither can the Court rely on it to arrive at a decision in this application”.
It is, therefore, clearly that the learned trial Judge declined to make use of the affidavit filed and served on the respondent’s counsel in reaching his decision because only and only because, relying on Order 8 Rule 27 of the High Court (Civil Procedure) Rules 1989, (hereinafter referred to for short as the Rules) no second leave of Court was obtained to make use of the affidavit in opposition to the motion of the 3rd March 2000. He did not, therefore, take into account all the materials placed before him. See Exhibit A (supra).
But what does order 8 Rule 27 of the Rules prescribe? the Order and Rule stipulates that:-
“Upon the hearing of any motion the court may, on such terms as to cost and adjournment as it may think fit allow any additional affidavit to be used after the affidavit has been duly filed and served on the opposite side”.
I pause here for a while for a comment for the purpose of clarity and elucidation to put the point aside. “We are not slaves to words but their masters. We sit here to give them their natural and ordinary meaning in the con in which we find them” per Lord Denning, M.R. in Allen Vs. Horn Electrical Industries ltd (1967) 2 All E.R. 1137, 1141.
Now, Order 8 Rule 27 of the Rules (supra) did not employ the phrase “Counter-Affidavit”. No. The Evidence Act Cap. 112 Laws of the Federation, 1990 in none of its general sections employed the phrase, “Counter-affidavit”. The phrase is, however popularly used. But it is not a part of the Law of Evidence. The law has not qualified “affidavit” with the epithet or, an adjective such as “Counter”. No. Evidence may be “Oral”, in that case it is “testimonium viva voce” or, it may be by an “Affidavit”, in which case it is “testimonium per tabulas datum”. Nothing more and nothing less. But where is the above leading me to?.
It is to this “leave and Order to defend” the action of 1/3/2000 (a motion is an action. See Kiwi Polish Co. Vs. Kempthorne (1922) N.Z.L.R. 77; The U.A.C. Ltd Vs. A.P.Z Umeugo (1959) 2 W.N.L.R. 30) having been granted to the appellant on 2-11-2000, she was then enable and empowered to defend it replying on both law and facts i.e. evidence available to her for her defence. Now, the man of law (counsel) supplied the law to the defence. The appellant supplied the facts (i.e. the evidence) (“testimonium per tabulas datum). The man of the (counsel) for the defence applies the law to the evidence or facts. The law is not applied in vacuo. No. The evidence (i.e. the facts: forms the substratum on which the law is hoisted and stands.
In my respectful view, therefore, the learned trial Judge was wrong to have granted “leave and Order to defend” but denied the appellant the use of the evidence or the facts upon which the law necessarily must stand in order to make the defence adequate, valid and complete.
Now, Order 8 Rule 27 of the Rules (supra) employed the clause: “additional affidavit to be used.” The word “additional” (additus) is in the adjective form. It qualifies the noun, “affidavit”. The all important question arising becomes this.
Q: Did the appellant file an “additional affidavit”?
Ans: The answer is a short, quick and unhesitating capital No.
It is, therefore, clear to me by the parity of reasoning, that the learned trial Judge wrongly relied on Order 8 Rule 27 of the Rules (supra) to decline to consider and make use of the appellant’s affidavit filed in opposition to the motion of 1-3-2000 in reaching his decision.
But, in granting the application of the 1st of March, 2000, the learned trial Judge was thereby exercising his legal discretion (discretio legalis est scire quid sit justum). Could he have exercised the discretion judicially and judiciously by neglecting to and not considering and making used of all relevant materials (the affidavit in support of the motion and, the affidavit in opposition to the motion) placed before him?
“A discretion does not empower a man to do what he likes because he is minded to do so, he must in the exercise of his discretion do, not what he likes but what he ought.” per Lord Wrenbury in Roberts Vs Hopwood (1925) A.C. 578, 613.
It is my respectful opinion that the learned trial Judge “ought” to consider as well the affidavit filed by the appellant in opposition to the action before reaching his final conclusion in the Ruling, now, appealed against.
Normally, an appellate court is usually reluctant to interfere with the exercise of its discretion by a lower court. But authorities abound that the appellant court has a duty to interfere if the lower court in the exercise of its discretion failed to take into account or consideration all the materials made available to it or, takes into consideration materials it ought not to take account or consideration or, it proceeds on a wrong principle of law or; not in accordance with the Law or Rules. See Watson Vs. Rodwell (1976) 3 Ch.D 380; Eronini Vs Ihenacho (1989) 2 NWLR (pt .101)46.
It is for my above reason and for the other reasons more fully detailed in the leading judgment that I do allow the appeal and do hereby endorse the consequential order for costs contained in the leading judgment.
WALTER SAMUEL NKANU ONNOGHEN, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother AMAIZU J.C.A. I agreed with his reasoning and conclusion that there are merits in this appeal which should consequently be allowed.
The following facts are not disputed:
(i) That the respondent filed a motion on 1/3/00 praying the lower court for an order commanding the appellant to release the respondent’s vehicle with registration NO. KW 7296 AC forthwith pending the determination of the suit.
(ii) That the said motion was supported by an affidavit of 13 paragraphs on which the respondent relied in moving the lower court.
(iii) That learned counsel for the respondent argued the motion on 20/3/00 after which it was adjourned to 29/3/00 for ruling.
(iv) That the appellant though served with the said motion of 1/3/00 and other relevant processes failed to attend court nor was she represented by counsel when the motion was moved on 20/3/200.
(v) That on 24/3/00 the appellant caused a counter affidavit to be filed against the motion of 1/3/00 which had by then been moved but not ruled upon.
(vi) That on 27/3/00, the appellant then filed a motion praying the lower court for an order granting leave to the appellant to defend the respondent’s motion of 1/3/00 which application was granted on 2/11/00.
It is important to note that at the time the lower court granted the motion for leave to defend the said motion, the appellant had already filed a counter affidavit which counter affidavit was later exhibited to the affidavit in support of the motion for leave to defend. The lower court in granting the respondent’s motion for an order for the release of the vehicle held inter alia:
“the appellant needed leave of the court to use the counter affidavit filed on 24/3/00 apart from the leave granted her on 2/11/00 to defend the motion of 1/3/00.” The issue is whether the lower court is right in so holding.
In holding that the appellant needs the leave of the court to make use of the counter affidavit, the learned trial judge relied, inter alia, on the provisions of order 8 Rule 27 of the Kwara State High Court (Civil Procedure) Rules which provides thus:
“27. Upon the hearing of any motion the court may, on such terms as to costs and adjournment as it may deem fit, allow any additional affidavit to be used, after such affidavit has been duly filed and served on the opposite side.”
It is trite law that motions are usually supported by an affidavit which must usually be filed along with the Notice of Motion or motion exparte. However see Order 8 Rule 20 of the Kwara State High Court (Civil Procedure) Rules which provides thus:
“20. Along with the notice of motion there shall be served a copy of any affidavit on which the party moving intends to rely at the hearing of such motion.
When order 8 Rules 20 and 27 are read together it becomes very clear that the additional affidavit contemplated by rule 27 is any affidavit filed by the party moving the court after the filing of the initial affidavit supporting the motion as stated in Rule 20 Supra. In other words if after filing an affidavit along with the motion on notice, the applicant files an additional affidavit which is sometimes referred to as a further affidavit, then he needs the leave of the court to use the said further/additional affidavit in argument of the motion. That is what order 8 Rules 20 and 27 are talking about.
They do not touch and concern the filing and use of a counter affidavit or what is also known as an affidavit in opposition; which is usually filed by the respondent to the motion where he intends to oppose the motion on notice. It is my considered view that a counter affidavit is not an additional affidavit within the contemplation of Rule 27 Supra and as such the said rule is not relevant nor is it an authority in support of the proposition of the learned trial judge that leave of the court is required before a respondent can make use of a counter affidavit filed in opposition to an affidavit in support of a motion on notice.
Granted, for the purposes of argument, that I am wrong in so holding which I very much doubt, it is my considered view that the lower court having granted the appellant leave to defend the motion after argument by the applicant therein, it also granted by necessary implication leave to the appellant to make use of the counter affidavit which was filed before the arguments and exhibited to the affidavit in support of the application for leave to defend the respondent’s motion. In fact learned counsel for the appellant did refer copiously to that counter affidavit in his argument of the motion for leave to defend and it is clear from the record that the contents of the counter affidavit influenced the decision of the lowr court in granting the leave sought.
For these and other reasons contained in the said lead judgment of my learned brother AMAIZU J.C.A., I too allow the appeal and set aside the ruling of the lower court in suit No. KWS/188/99 delivered on 20th March, 2001 by Hon. Justice A.A. ADEBARA and remits the case to the lower court for trial de novo before another Judge in the interest of Justice. I abide by the consequential order as to cost.
Appeal allowed.
Appearances
Chief S.F. Odeyemi;For Appellant
AND
Ayodele Ogundele Esq.,
S.B. Basambo Esq.,For Respondent
