MR. JOHNSON UGWUOKE v. FEDERAL ROAD SAFETY COMMISSION & ORS
(2019)LCN/12708(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/OW/131/2015
RATIO
EVIDENCE: WHERE A PARTY FAILS TO FILE A COUNTER AFFIDAVIT
“Thus, where a party fails to file a Counter affidavit to deny an averment in an affidavit, he is deemed to have admitted the said averment, until he denies the same, and he has all the time in the world to deny it, while the averment is not used yet. That does not mean that the denial must come within 48 hours of being served with the affidavit. CPC VS Lado & Ors (2011) LPELR ? 3997 CA; Ogunleye Vs Aina (2012) LPELR Pt.7877 CA.” PER ITA GEORGE MBABA, J.C.A.
INTERPRETATION: MEANING OF ‘REPLY-BRIEF’
“A reply Brief merely comes to contend any fresh or new issue of law raised by the Respondents in their Brief, which was not captured or anticipated in the Appellant’s brief, and if not explained, can mislead the appellate Court, to the prejudice or detriment of the Appellant. See the case of Oguanuhu & Ors Vs Chiegboka (2013) LPELR 19980 SC: ‘A reply brief is not meant to be a repetition of argument in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s brief. On the contrary, a Reply Brief, as the term implies, replies to Respondent’s brief.’ See also Ecobank Vs Honeywell Flour Mill Plc (2018) LPELR 45124 SC.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MR. JOHNSON UGWUOKE – Appellant(s)
AND
1. FEDERAL ROAD SAFETY COMMISSION
2. MR. J. IGWE
3. MR. B. OLHE
4. MRS. O.A. AWASSAM (UNIT COMMANDER)
5. MR. TONY OKOLI
6. CORPS MARSHAL FEDERAL ROAD SAFETY COMMISSION – Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the decision of the Federal High Court in Suit No. FHC/UM/CS/108/2015, delivered on 16/06/2015 by Hon. Justice F.A. Olubanjo, wherein trial Court held for the Respondents, dismissing the application by the Appellant to enforce his fundamental rights. At the lower Court, Appellant, as Applicant, had sought:
(1) A declaration that the harassment intimidation, inhuman treatment and bodily harm perpetrated by the Respondents against the Applicant on 21st of March 2015 around the Osisioma Area in Aba, Abia State, is a violation of the Applicant’s Fundamental Right to Dignity of his person as guaranteed by Section 34(1) (a) and 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act.
(2) A declaration that the unlawful arrest deprivation of personal liberty and security perpetrated by the Respondents against the Applicant on 21st of March 2015 around Osisioma area in Aba, Abia State, is a violation of the Applicant?s fundamental right to liberty guaranteed by Section 35(1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 6 of the African Charter?
(3) A declaration that the confiscation by the Respondents of the Applicant’s Nissan Teana Saloon Car with registration No. BRR 941 BZ on 21st March, 2015 is illegal and contrary to Section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(4) A declaration that the arrest and/or conviction of the Applicant by the Respondents, without a trial in a Court of competent jurisdiction, is a violation of the Applicant’s right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution? and Article 7 of the African Charter?
(5) An Order directing the Respondents to forthwith release the Nissan Teana Saloon Car with registration No. BRR 941 BZ with its key belonging to the Applicant to him.
(6) An Order awarding the sum of N10,000,000 (Ten Million Naira) jointly and severally as EXEMPLARY damages against the Respondents in favour of the Applicant for violation of his Fundamental Rights.
(7) An Order directing Respondents to issue an unreserved public apology to the Applicant in two national daily newspapers widely circulating in Nigeria and particularly in Abia State.
(8) And any Order or further order(s) the Honourable Court may deem fit to make in the circumstances, in terms of the Reliefs sought in the statement accompanying the affidavit in support of the Application.?
The application was supported by the Statement of the Applicant disclosing the particulars of the parties, the grounds for seeking the reliefs, and affidavits, with exhibits thereof, in verification.
The grounds and facts for bringing the applicant, as can be deduced from the affidavit and statement of the Applicant, were, that:
On Saturday, 21/3/2015, at about 1.30pm, while travelling from Port-Harcourt to Enugu in Nissan Teana Saloon Car, 2008 Model, with registration No. BRR 941 BZ, Appellant was flagged down by Federal Road Safety Commission officials, between Osisioma, Aba and Ubakala Junction in Abia State.
Among the said officials of the Federal Road Safety Commission (1st Respondent) were the 2nd, 3rd and 5th Respondents. The 3rd Respondent was in his official uniform of the Federal Road Safety Commission, while the rest were in mufti. On being stopped by the officers, Appellant (said he) wound down his side glass and greeted the 3rd Respondent; that the 2nd Respondent ordered him to drive into a nearby unknown premises and park the vehicle and then wait until attended to; he asked the officials whether there was any problem, and was told to wait to find out at the premises he was directed to park his vehicle. Appellant said immediately the 3rd Respondent jumped on top of the car bonnet, with a great force that dented the car badly, and started pointing threatening fingers at him; that Exhibits A and A1 were the photographs of the 3rd Respondent, on top of the car and the dent caused, respectively; he became very apprehensive about the situation, that just then, five men (who turned out later to be officials of the 1st Applicant (sic)), dressed in plain clothes, approached and surrounded the vehicle; the 5th Respondent was one of the five men, and they, together with 2nd Respondent started banging on the doors of the vehicle, tugging on the wheels and tyres of the vehicle and threatening him; that the 3rd Respondent at that point jumped down from the bonnet and joined to threaten him.
He became more apprehensive and afraid for his life, thinking it could be a hatch for his kidnap, as it was no longer clear whether the men were indeed officers or marauders. He decided that it was life threatening and extremely dangerous and so drove off to save his himself, hoping to run into nearly Police post, to report the incident; that unknown to him, these men in plain clothes, had boarded a gold color Toyota Camry, driven by the 2nd Respondent to pursue him; they blocked him at a spot and forced him to stop. He then noticed that some other men of the 1st Respondent also arrived at that spot in their official van, and in a commando style, they jumped out of their vehicles, used a metal rod to smash his side mirror, and at that point opened his car door and rained blows on him; the officials of the 1st Respondent’s uniform joined in beating him; the 2nd, 3rd and 5th Respondents joined to beat him, collected his car key; they hit his eyes and mouth and dragged him out of the vehicle, used their fists, sticks and rod on him.
He referred to Exhibit B as the picture of his swollen eyes, resulting from the blows he got from the Respondents; that the 2nd, 3rd and 5th Respondents and others, acting for the 1st Respondent, tried to drag him into the Toyota Camry Car, but later changed their mind and dragged him into the official car of the 6th Respondent, and he was taken back to where the incident started; that 2nd, 3rd and 5th Respondents threatened to use a knife to inflict more injuries on him and he pleaded to be taken to the Police, but they refused. At 1st Respondent?s office, he was given more beatings by 2nd, 3rd and 5th Respondents and he was forced to lie, face down, on the floor, while the officials of the 6th Respondent stepped on his back and rained more blows on him. He relied on Exhibit C as the picture of the wound inflicted on his head by the 2nd, 3rd and 5th Respondents.
He said that as they were torturing him, the 4th Respondent stepped into the scene and introduced herself as the Unit Commander. She cautioned the 2nd, 3rd and 5th Respondents and made them to stop further beatings of him and started interrogating him. He then introduced himself, and produced Exhibit D to show that he just attended a Church programme. He said he lost a lot of blood and appealed to be taken to Enugu for medical attention but was refused. However, some persons held at 1st Respondent’s office later offered to take him to Enugu ‘one of them was Mr. Kenneth, whom he never met until then. He was issued with a ticket for dangerous driving and asked to pay penalty of N50,000.00. His car was impounded by the Respondents and the tyres deflated. He was told to come back on 23/3/15 to pay the penalty before he could get his car back; Exhibit E was the indictment ticket. He was finally released on that day, at about 4.00pm, when Mr. Kenneth took him to Enugu.
The Exhibit F was the medical report he said he collected at the University Port Harcourt Teaching Hospital on being further treated in Port Harcourt. He said he was still in pains and his eyes and head were still hurting and body still aching. He was severely traumatized by the brutality; his vehicle was still being impounded. (See Appellants affidavit on pages 9 to 13 of the Records of Appeal).
The Respondents (1st to 6th) filed a Counter affidavit on 9/7/15, deposed to by J.O. Igwe, 2nd Respondent (who wrongly claimed to be 4th Respondent), to say that Appellant was not entitled to the reliefs he sought; that facts relied on and the grounds for the claim were false. He stated their own side of the story, how Appellant on the said date was flagged down, opposite the 6th Respondent’s office base, at Osisioma, for reckless driving; that Appellant, reluctantly stopped on the main road after much persuasion with complaints by him as to why he should be stopped; he was asked to pull over, properly and park, but he refused; he was politely cautioned on the reckless driving, but he replied that it was only the Police that can stop him for him to obey; when he was asked to present his driving license and vehicle papers, he quickly wound up the side glasses, pressed down the locks and zoomed off, while the arresting Marshals were in front of his vehicle asking him to clear off the road; that in the process, the vehicle swerved and lifted the 3rd Respondent onto the bonnet, as Appellant maliciously and dangerously sped off; the 3rd Respondent was dangerously and menacingly driven against his will by the Appellant and was latter thrown off, at high speed, by the Appellant and he fell, badly, hitting his head and body on the hard road, and was in precarious state; that many in coming, and passing motorists, and on lookers, witnessed the scene and some of them pursued the Appellant; that it was believed that the 3rd Respondent was going to die, as it was a case of an attempt to run over the 3rd Respondent and kill him; that people shouted at the barbaric behavior of the Appellant. They exhibited the picture of the scene of danger which 3rd Respondent was subjected, as taken by a Marshal who was at the office of 6th Respondent at the time of the said incident. Exhibit FRSC A.
The 2nd Respondent, who said he was watching the scene and what transpired from his office not minding if the 3rd Respondent was going to survive or not as a result of the reckless act of the Appellant, said he entered his car and followed up, ran after the Appellant, and at a point (customs check point) a commercial, but driver and other commuters, who saw the Appellants misconduct and dangerous driving stopped him. That, in fear, Appellant left his car in the middle of the Expressway and tried to run away, but people caught him. He (Respondent) then sent signal to the patrol team who came and rescued Appellant from the mob. He was arrested, taken back to their office, at Osisioma, close to Aba. At the office Appellant begged for forgiveness, and told the Unit Commander that he was hypertensive; that his mother was sick and he was rushing to Enugu to see her, and that was why he was driving in reckless manner. Respondent said Appellant was treated nicely, because of his plea and alleged sickness of the mother, hence he was not handed over to the Police to charge him for attempted murder. He was issued with a notice of offence, to pay penalty of N50,000.00, upon waiving his right to be prosecuted, when confronted with the Notice of offence; and he pledged to return to Respondents’ office the next day to pay the fine and recover his vehicle. Respondents added that at the time of the incident, the judiciary workers were on strike and so no Court opened in Abia State for possible arraignment of the Appellant.
Respondents further said that they were acting within the limit of their official functions, as agents of the 1st Respondent. (See pages 47 to 50 of the Records of Appeal).
Upon the case coming up for hearing and as per the address of Counsel and their submissions, the trial Court dismissed the application on 16/6/15.
What transpired in Court on that 16/6/15, was rather intriguing, in my view. On 13/5/15 the case was adjourned to 16/6/15 for adoption of addresses. On that date 16/6/15, after taking appearances, Counsel for the Applicant (Appellant herein) N.N. Obinwa (Mrs.), with her K.C. Onu Esq, said:
‘We seek to withdraw the application. Applicant seeks to count its (sic) cost. Respondents have not been served.’
The Court answered that by its records, the Respondents had been served. Counsel for Appellant further said:
‘There is a Motion to extend time to file a Counter, which hasn’t been moved. So, there is no Counter. We can withdraw with or without leave of Court.’
Counsel for the Respondents, Uche Igwe Esq (with him J.N. Nwordu (Mrs.), C.A. Ekwuruike (Miss) and Oluwaseyi Arowosegbe Esq) said:
‘I am surprised, on last date Applicant’s Counsel who appeared on last date agreed Respondents have been served. We have filed processes. Court should take cognizance of all materials before it. We are not opposing. We ask for N100,000. See page 58 of the Records
The trial Court held:
From the records, on the last adjourned date, Counsel who appeared for the Applicants (sic) told the Court that the Respondents had been served. The processes filed by the Respondents were duly served on Miss N.J. Asoh, Applicant’s Counsel on that date. In such circumstances it is trite the Respondent should be aware of the pendency of the action so as to enable him defend himself. The 1st to 6th Respondents filed processes in defence of this action and also in objection to this action. They have therefore, in my view, been duly served. Furthermore, it is settled that the Court consider all processes in its file. I cannot therefore close my eyes to the processes filed by the Respondents, and must take them into consideration, while considering Mrs. Obinwa’s application to withdraw this motion for enforcement of Fundamental Rights, and Mr. Igwe’s application for costs.
Regarding the application to withdraw, which has not been opposed by Mr. Igwe, I am of the view that by filing processes, the Respondents have joined issues with the Applicant. The application for withdrawal is granted. However the appropriate order to make in these circumstances issues have been joined, will not be one of striking out, but of dismissal of the Application for enforcement of Fundamental Rights. Regarding Issue of costs, even if the Respondents did not pay any filing fees, the Counsel, certainly, exerted time, energy and even legal knowledge and skill in preparing those processes. This is their 2nd appearance in this case, they are definitely entitled to costs. In conclusion I therefore make the following orders:
This application for enforcement of Fundamental Rights dated and filed on 9/4/15 is dismissed. Cost of N25,000.00 awarded against the applicant jointly in favour of the 1st, 2nd, 4th and 5th Respondents. See pages 59 and 60 of the Records of Appeal.
That is the decision Appellant appealed against, (as per the Notice of Appeal on pages 62 – 65 of the Records of Appeal).
Appellant filed His Brief of Argument on 18/10/17, upon regularizing the Records of Appeal on that date 18/10/17. He filed a Reply brief on 20/12/17. He disclosed 3 Issues for the determination of the, namely:
(1) Whether the Learned trial Judge?s decision that issues have been joined by the parties is right in law. (Ground 1).
(2) Whether the learned trial judge was right to have dismissed the Application for enforcement of the Applicant?s fundamental right without determining same on the merit. (Ground 2)
(3) Whether the decision of the lower Court is not manifestly perverse. (Ground 3).
The 1st to 4th Respondents filed their Brief on 17/11/17 and distilled two issues for the determination of the appeal, as follows:
1) Whether the Order of dismissal made by the trial Court amounted to an order striking out the suit (Grounds 1 and 2)
2) Whether the learned trial judge reached a just decision in the case based on available circumstances before the Court. (Ground 3).
The 5th and 6th Respondents filed their Brief on 17/11/17 too, and distilled a lone issue for the determination of the appeal:
Whether the learned Trial Judge was right when he dismissed the Applicant’s Application for enforcement of fundamental Right upon the withdrawal of the Application (Grounds 1 and 2).
Arguing the appeal on 14/1/19, Appellant?s Counsel, N.N. Obinwa (Mrs), said the law was quite elementary or when it could be said that parties have joined issues on a particular question(s) of law or fact. He relied on the case of Nkuma Vs Odili (2006) All FWLR (Pt. 313) 24; Lewis & Peat Vs Akhimien (1976) 7 SC 157; Ajao Vs JMDB (2006) All FWLR (Pt. 302) 19 on the point. She submitted that the Respondents’ Counter affidavit was not yet proper before the Court, as the motion for extension of time to file same, was yet to be moved and/or granted before the application to withdraw the suit was made; Therefore, he said parties had not joined issues in the case and so the trial Court misconceived the law and misapplied it. She said that the trial Court therefore lacked power to consider the counter-affidavit as duly filed for the purpose of opposing the Application.
On issue 2, Counsel said that trial Court erred in law, when it dismissed the Application, without considering it on the merits. She argued that in Enforcement of Fundamental Rights, even if the parties have joined issues or the respondents challenged the competence of the action or jurisdiction of the Court, the Court is bound to take every such opposition/objection, together with the substantive application and rule, one way or the other. She relied on Order VIII Rules 2, 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009. She submitted that, even if the trial Court was right to hold that issues were joined (which she did not concede), that the Court fell into grave error, to have summarily dismissed the Application based on application to withdraw the Suit; she noted that the Respondents’ Counsel did not oppose the application to withdraw, but only asked for cost. She said that by dismissing the suit, the trial Court pre-judged the suit, thereby occasioning a miscarriage of justice.
On issue 3, Counsel said the decision was, manifestly perverse, saying that a perverse decision is one which ignores the facts or evidence, and when considered as a whole, amounts to a miscarriage of justice; that a decision would be perverse, if it could be shown that the Court took irrelevant matters into consideration, which substantially formed the basis of its decision and that the hall mark is invariably a miscarriage of justice. She relied on FBN Plc Vs Ndoma Egba (2006) All FWLR (Pt. 307) 1012; Williams Vs Ogundipe (2006) All FWLR (Pt. 327) 540 at 548.
She argued that the findings of the trial Court, that the parties had joined issues in the case, was not supported by any evidence on the Records (since the Counter-affidavit was not yet properly before the Court, according to her). She relied on the case of Frinam Nig. Services Ltd Vs Ukueku (2006) All FWLR (Pt. 293) 296, on the need to move application for extension of time, and the need for the Court to exercise its discretion thereto, properly.
She urged us to allow the appeal, reverse the decision of the trial Court, and to enter judgment for Appellant in the fundamental rights action, pursuant to Section 15 of the Court of Appeal Act 2004 and the case of R.C.O and S vs Rain Bownet Ltd & Ors (2014)5 NWLR (Pt.1401) 516.
Learned Counsel for 1st to 4th Respondents, N.C. Okeh, who settled the brief, on their issue one, argued that the order of dismissal of the suit amounted to striking out of the same, and relied on the case of Asiegbu Vs Access Bank & Ors (2016) LPELR ? 41056 and Babatunde Vs PAS & TA LTD (2007)13 NWLR (Pt. 1050) 113.
Of course, this argument was off the point, as the Appellant was not complaining about the effect or purport of the order of dismissal. Counsel for 1st to 4th Respondents therefore appeared to have misunderstood the whole tenor of the appeal, in my opinion.
On their issue 2, 1st to 4th Respondents said that the decision to dismiss the suit was not preserve, as it was founded on the application to withdraw the suit, and what concerned the trial Court was the termination of the suit; that the trial Court did not consider the evidence adduced in the affidavits.
On the plea for us to grant the reliefs sought in the case pursuant to Section 15 of the Court of Appeal Act, 2004, 1st to 4th Respondents said Appellant cannot make such prayers, having applied to withdraw the suit; that he cannot approbate and reprobate, at the same time.
He relied Suberu Vs The State (2010) LPELR 199/2000 (SC), and urged us to dismiss the appeal.
Counsel for 5th and 6th Respondents. C.N. Nwokorie Esq, who settled the brief, on their lone issue, submitted that the trial Court rightly dismissed the Applicant suit as the same was due for hearing at the time of the application to withdraw it; that on the date of hearing, Appellant elected to withdraw the suit, instead of adopting his written address; he said that at the stage Appellant applied to withdraw the suit, the Litis contestation had been reached, and the Applicant was no longer dominus litis; that is, the stage had reached for legal battle, and the Applicant was no longer in control of the proceedings; that Applicant having lost dominus litis, when he applied to withdraw the suit, the trial Court was right, to dismiss the suit, as issues had been joined by the parties at that stage. He relied on the Young shall Grow Motors Ltd V Ambrose Okonkwo (2002)38 WRN 98 at 118 – 123. Counsel said that issues are said to be joined in a case, when both parties filed their processes and exchanged same, one with another; that it was clear on the records, that the case was adjourned for adoption of addresses, filed by the parties.
He relied on the case of Eronini Vs Iheuko (1989)2 NWLR (Pt. 101) 46, where the Supreme Court held:
‘In my view, the rationale of the rule, i.e. in Soetan?s case, is that once issues have been joined to be tried and the stage set for the conflict, then once a certain stage has reached, the plaintiff is no longer dominus litis and cannot be allowed to escape through another back door to enter again through another action.’
He argued that withdrawal of the suit at the stage of hearing meant Appellant had lost interest in pursuing the claim (on seeing the Counter affidavit), and the trial Court was therefore right to dismiss the suit (instead of striking it out). Counsel relied on Mabamije VS Otto (2016) NWLR (Pt. 1529) 171.
He urge us to dismiss the appeal.
RESOLUTION OF THE ISSUE
Appellant had filed Reply Brief in this case, which, in my view, is a rehash of the argument earlier presented in his brief, but realigning same to adopt the sole issue distilled by the 5th and 6th Respondents.
See Paragraph 1.3 of the Reply brief, where Counsel argued:
“My Lords, we shall adopt the sole issue identified by the 5th and 6th Respondents’ Counsel in canvassing the issues as raised in the Respondents’ Briefs, in further urging your lordships to allow the appeals.”
Of course, that is not the purpose of a Reply brief, as it does not offer Appellant a second chance to re-invigorate his arguments in his brief and/or to repair or improve the same. A reply Brief merely comes to contend any fresh or new issue of law raised by the Respondents in their Brief, which was not captured or anticipated in the Appellant?s brief, and if not explained, can mislead the appellate Court, to the prejudice or detriment of the Appellant.
See the case of Oguanuhu & Ors Vs Chiegboka (2013) LPELR 19980 SC:
‘A reply brief is not meant to be a repetition of argument in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s brief. On the contrary, a Reply Brief, as the term implies, replies to Respondent’s brief.’ See also Ecobank Vs Honeywell Flour Mill Plc (2018) LPELR 45124 SC.
I shall consider this appeal on the sole issue donated by the Counsel for the 5th and 6th Respondents, as the same appears more apt, and capable of addressing the real essence of this appeal, which is whether the learned trial Court was right to dismiss the suit, (instead of striking it out), upon the Appellant applying to withdraw the fundamental rights application at the stage the matter was for adoption of written addresses by Counsel.
Appellant’s main grouse with the decision of the lower Court appears to be that the suit was dismissed upon the prayer to withdraw the application (instead of being struck out), whereas the Respondents did not join issues with the Applicant, since the counter-affidavit filed by the Respondents was not yet properly before that Court, according to Appellant; that the motion for extension of time to file the Counter affidavit had not been moved and granted.
I think that was a gross display of legal misconception relating to procedure for filling of counter affidavit, and as to when parties can be said to have joined issues in a suit.
Appellant did not state any law to support his submission that the Respondent must move a motion and obtained extension of time to file Counter affidavit. Counter affidavit requires no time limit to file, as a Respondent, upon being served with a Court process including an affidavit in support, has the right to file his Counter affidavit at anytime, prior to the hearing of the application or matter to which the affidavit relates. The law rather affords parties the right of being served with an affidavit or Counter affidavit, at least, 48 hours, before the same is being used in Court, and except the party served with such process, less than 48 hours, before the hearing of the matter, waives his right to being given 48 hours or does not insist on the minimum time allowed him by law, the Court has to adjourn the matter, to afford the opposing party his legal right to study and react to the affidavit (or Counter affidavit, as the case may be).
It is therefore not necessary to file a motion in Court, for extension of time, to file Counter affidavit (or a further affidavit) to deny or contest averment of an opponent in Court. In the case of Maersk Nigeria Ltd Vs Oguejiofor (2018) LPELR 44889 CA delivered on 11/7/18, this Court held:
Appellant had made a heavy weather about the issue of not obtaining the leave of Court to file the Counter affidavit, alleging that the Respondent had failed to file the same within time. I have tried to locate the law which Appellant relied upon to make such outlandish submission, without success. I am yet to come by a law that stipulates a time frame for the filing of a Counter affidavit in a cause or matter, either by this Court, or the Lower Court, to suggest the need to file an application for extension of time to file Counter affidavit!
I am rather aware that a process with an affidavit, served on the opponent within (sic) (before) 48 hours (2 days), to the hearing, remains potent and can be moved, used and relied upon, whether or not the same is reacted to or countered by the opponent, once he has been served within time. Thus, where a party fails to file a Counter affidavit to deny an averment in an affidavit, he is deemed to have admitted the said averment, until he denies the same, and he has all the time in the world to deny it, while the averment is not used yet. That does not mean that the denial must come within 48 hours of being served with the affidavit. CPC VS Lado & Ors (2011) LPELR ? 3997 CA; Ogunleye Vs Aina (2012) LPELR Pt.7877 CA.
Order 6 Rule 9 of this Court’s Rules, 2016, states that:
The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16? (Order 16 relates to Mediation Programme)
I have earlier stated that there is no time limit in our Rules for the filing of Counter affidavit, and so a party is not expected, ordinarily, in law, to seek extension of time or the leave of this Court (or of the Lower) to file a Counter affidavit, to deny a given affidavit standing against him. To that extent, Appellant?s argument about filing a Counter affidavit, after 6 months, without the leave of Court was/is strange, in my opinion. In saying this, I have also considered the Order 8 of the Abia State High Court (Civil Procedure) Rules, 2009, which makes provisions for interlocutory applications, where by the Rules authorize that for any application to be made, the same (motion) shall be made, and served, with supporting affidavit, on the defendant (where it is a Motion on Notice). And:
Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the motion for the hearing.? See Order 8 Rule 17 of the Abia State High Court Civil Procedure Rules 2009.
The above provision locates a Respondent’s right to always insist on his right of 2 clear days (or 48 hours) notice of any application raised against him, to enable him react to same by filing a Counter affidavit, if necessary. Of course, that does not limit the time of a respondent to file a Counter affidavit which he can do at any time, after being served with the application in contention.
In this case, at hand, the Respondents had deposed to their Counter affidavit of 32 paragraphs on 12/5/15 (see pages 48 to 52 of the Records of Appeal). They also filed a motion on the same date 12/5/15 for ?Extension of time to file Respondent/Applicant’s Address, affidavit and written address accompanying the Counter Affidavit.? See page 42 of the Records.
The motion by the Respondents was therefore not necessary for the purpose of their Counter Affidavit, but may have been necessary for the purpose of the Respondents’ Address, brought outside the 5 days of service of the Fundamental Rights Suit on them.
Order 2 Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, requires a Respondent who intend to oppose fundamental rights Suit, to file his address within 5 days of the service on him of the application, and may accompany it with a Counter affidavit. The phrase ?and may accompany it with a Counter affidavit,? in the above provision, clearly, in my opinion, shows that, it should be read disjunctively from the proceeding provision, that ?A Respondent who intends to oppose the application shall file his address within 5 days of the service on him of the application.
Thus, the Counter affidavit of the Respondents was properly before the Court as at the date the matter was adjourned for hearing, that is, 16/6/15. On 13/5/15, when the case was called, Counsel for Applicant, Miss. N.J. Asoh, said (among other things):
‘The Respondents have all been served. They just served me their processes this morning.? And the trial Court said: ?Case adjourned to 16/6/15 for adoption of Written Addresses.’
It was when the case came up, for the adoption of the Written Addresses, that Appellant’s Counsel applied to withdraw the application. Of course, in such circumstance, the Court cannot force the Applicant to proceed with the hearing of the case, having indicated intention to withdraw it. But the Court had a duty to determine what order to make in the circumstance, which could only be one of two – to strike out the Suit or to dismiss it.
By law, where a Plaintiff or applicant applies to withdraw a Suit, after issues have been joined in the Suit, namely pleadings/processes had been filed an exchanged, and the battle line drawn, and evidence paraded or taken, it ceases to lie with the Plaintiff or Applicant to unilaterally determine or terminate the case and move away (possibly to bring another action or reviewed action upon benefitting from the pleading/evidence of the adverse party) to rework his case. The Court would not, in that circumstance, simply allow the Plaintiff or Applicant to walk away and profit from his mischief. It would rather assume that the Plaintiff or Applicant, upon seeing the defence of the Defendant or Respondent, opted to elope, conceding defeat! That appears to be the rationale behind the principle in the Soetan?s case, as stated in the case of Eronini Vs Iheuko (1989) 2 NWLR (Pt.101) 46, where my Lord, Nnaemeka Agu JSC, said:
‘In my view, the rationale of the rule i.e. in Soetan’s case is that, once issues have been joined to be tried and the stage set for the conflict, then once a certain stage has reached, the Plaintiff is no longer dominus litis and cannot be allowed to escape through the back door, to enter again through another action.’
The Supreme Court further stated in the above case:
‘I seize this opportunity to state that, on principle, whenever a Suit is being discontinued, after some evidence has been given, a trial Judge is bound to consider the effect of the evidence so far given before he can correctly arrive at the proper order to make, if he gives leave for the withdrawal. If the learned trial Judge and the Court of Appeal had adopted this Course, they would have seen that, for the reasons I have given, the respondent had done an irretrievable damage to his own case before he applied to withdraw. The correct order in such a case would have been one of dismissed? In Soetan?s case (supra) the Plaintiff had closed his case when, because of the nature of the evidence given, he wanted to have a second bite at the cherry. And in this case, the Plaintiff had destroyed his case before he sought to withdraw, to come again. I believe that this Court stated the principle correctly in Soetan Vs Total Nigeria Ltd (1972) 1 ALL NLR (Pt.1) 1 at 3.’
In the case of Odoemelam Vs Nduka & Anor (2012) LPELR 9825 (CA), this Court said:
‘Parties are said to join issues, when they take up opposite side of a case or when they jointly submit an issue for decision. The 8th Edition of the Black’s Law Dictionary at page 854, defines ‘joinder of issues’ (1) The submission of an issue for decision (2) the acceptance or adoption of a disputed point as the basis of argument in a controversy. Also termed joinder in issue…. (3) The taking up of the opposite side of a case or of the contrary view on a question.
There is no doubt that in the Counter affidavit, the Respondents had narrated, clearly, the conduct of the Appellant and how he drove his vehicle and what led to his being issued Notice of Offence and how he pleaded for forgiveness concerning his reckless driving, that would have killed the 3rd Respondent and how the 4th Respondent and other officers of the 1st Respondent acted to save his (Appellant?s) life from angry bye standers who watched how the Appellant drove, recklessly, to escape after attempting to kill 3rd Respondent. Appellant did not file any further affidavit to contest those averments in the counter affidavit. Of course, in affidavit evidence, as in fundamental enforcement action, the averments constitute the evidence in the case before the Court. See Magnusson Vs Koiki and Ors (1993) LPELR 1818 SC.
So it would be right to say that evidence had already been adduced in the case, as per the affidavits, before the case was adjourned to 16/6/15 for the adoption of addresses. The trial Court was therefore right in my view to dismiss the case, in the circumstances, upon it being withdrawn by the Applicant. Magnusson Vs. Koiki (Supra); Anoka Vs. Ikpo (2013) LPELR 20419 CA; Henry Stephen & Engineering Ltd Vs SA Yakubu Nigeria ltd (2009) LPELR -1363 SC.
I therefore resolve the issue against the Appellant and dismiss the appeal. I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
Appearances:
Mrs. N.N. Obinwa with her, E.A. Ememe, Esq.For Appellant(s)
Uche Igwe, Esq. (who adopted the brief of N.C. Okeh) for the 1st to 4th Respondents.
C.N. Nwokorie, Esq. with him, Chikamadu Odigbo, Esq. for the 5th to 6th RespondentsFor Respondent(s)
