OKEKE v. GOV, ENUGU STATE & ORS
(2020)LCN/15222(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/139/2016
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
SIR IKECHUKWU OKEKE APPELANT(S)
And
- GOVERNOR OF ENUGU STATE 2. ATTORNEY GENERAL OF ENUGU STATE 3. COMMISSIONER FOR CHIEFTAINCY MATTERS, ENUGU STATE 4. MOSES OHAA RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE A COURT RULES IT LACKS JURISDICTION, IT IS A FINAL DECISION
The law is trite that the ruling of a Court that it lacked jurisdiction is a final decision. See the case of FAGORUSI & ANOR V. IBIYINKA & ANOR (2011) LPELR – 8976 (CA); UMEH & ANOR V. OKWU & ORS (2014) LPELR – 24063 (CA). PER UMAR, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See IKPEKE V WARRI RIFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR – 44471 (SC). PER UMAR, J.C.A.
CONDITIONS THAT MUST BE SATISFIED BEFORE A COURT IS COMPETENT TO EXERCISE ITS JURISDICTION IN A MATER
On the conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter, the Supreme Court in the case of MADUKOLU & ORS V. NKEMDILIM (1962) 24023 (SC) held as follows:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” Per BAIRAMIAN, J.S.C ( Pp. 9-10, paras. F-D). PER UMAR, J.C.A.
WHETHER OR NOT IN A MATTER DECIDED ON AFFIDAVIT EVIDENCE, THE DEPOSITIONS TAKE THE PLACE OF ORAL EVIDENCE
The law is trite that in a matter decided on affidavit evidence, the depositions stand or take the place of oral evidence. See the decision of this Court in UCHE & ANOR. V. INEC & ORS. (2019) LPELR – 48396 (CA). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Enugu State High Court delivered by Honourable Justice I.A. Umezulike on 12th November, 2015 in Suit No. E/299/2014 wherein the learned trial judge upheld the 4th Defendant’s (now 4th Respondent) preliminary objection and struck out the Appellant’s suit.
BRIEF STATEMENT OF FACTS
The Appellant was the Plaintiff at Court below in Suit No. E/299/291 and the 1st – 4th Respondents were 1st – 4th Defendants respectively.
Prior to the institution of the suit which is the subject of the instant appeal, the Appellant had on 15/7/2013 by Writ of Summons commenced Suit No. E/326/2013 against the Attorney General of Enugu State (2nd Respondent herein), the Commissioner, Ministry of Chieftaincy Matters, Enugu State (3rd Respondent herein), the Ministry of Chieftaincy Matters, Enugu State and Chief Moses Ohaa (4th Respondent herein). (See pages 164 – 177 of the Record of Appeal).
The Appellant however moved to withdraw the action in Suit No. E/326/2013 and same was granted by the Court below. In its ruling, the cost of N50, 000.00 was awarded against him and in favour of the 4th Defendant. (See page 179 of the Record of Appeal).
The Appellant on 4th August 2014 proceeded to file another suit against all the Respondents which is the subject of this appeal. Upon the service of the Court processes on the 4th Respondent, the 4th Respondent filed a Notice of Preliminary objection brought pursuant to Order 39 and Order 23 Rule 1(4) of the High Court Rules of Enugu State 2006, contending that the Court below lacked the jurisdiction to entertain the Appellant’s suit. The 4th Respondent’s objection is anchored on the ground that the Appellant failed to satisfy the condition precedent for the institution of the suit i.e. the payment of the cost of N50, 000. 00 (Fifty Thousand Naira) awarded against him when the earlier Suit No. E/326/2013 was struck out.
It is the case of the Appellant that he filed a counter affidavit in opposition of the preliminary objection wherein he averred in paragraphs 7, 8 and 9 that he paid the cost awarded into the Registry of the Court for collection by the 4th Respondent and that he was issued with Exhibit SIO1 in evidence of his payment.
The 4th Respondent on the other hand refuted the claims of the Appellant and challenged the authenticity of the said Exhibit attached by the Appellant evidencing the payment of the said cost. Upon the hearing of the Application, the learned trial judge on 12th November 2015 upheld the 4th Respondent’s Preliminary Objection and struck out the Appellant’s suit.
Dissatisfied by the turn of events, the Appellant invoked the Appellate jurisdiction of this Honourable Court vide a Notice of Appeal dated 18th November 2015 and filed on 23rd November 2015.
In compliance with the Rules of this Honourable Court, parties filed and exchanged their respective Brief of Arguments. The Appellant’s Brief dated 17th August 2016 and filed on 18th August 2016 was deemed properly filed and served by an order of this Court made on 28th November 2017. The Appellant also filed a Reply Brief to the 1st – 3rd Respondents’ Brief. The said Brief is dated and filed 17th January 2020 and deemed properly filed and served by an order of this Court made on 21st January 2020. Both Briefs were settled by TOCHUCKWU MADUKA, ESQ. who at paragraph 2 of the Appellant’s Brief distilled a sole issue for the determination of this appeal to wit:
“Whether in the circumstances, the learned Chief Judge was right to have entertained and upheld the 4th Respondent’s preliminary objection; and to have struck out the Appellant’s suit? (Grounds 1, 2, 3, 4, 5, 6, 7 and 8)”
The 1st – 3rd Respondents’ Brief of Argument is dated 11th June 2018 and filed on 12th June 2018. The said Brief settled by NKECHI OKEGBE, ESQ. PRINCIPAL LEGAL OFFICER, MINISTRY OF JUSTICE, ENUGU was deemed properly filed and served by an order of this Honourable Court made on 21st January 2020. Counsel to the 1st – 3rd Respondents at paragraph 5.0 of the 1st – 3rd Respondents’ Brief of Argument also distilled a sole issue for the determination of this appeal to wit:
“Whether the Court was wrong in holding that the condition precedent was not fulfilled and that nothing in exhibit SIO1 showed that the cost was paid in favour of the 4th Respondent (Grounds 1, 4 and 5)”
The 4th Respondent’s Brief of Argument is dated and filed 26th January 2018. The said brief settled by CHIKA NWAGU ESQ. who distilled a sole issue for the determination of the appeal to wit:
“Whether the lower Court was right in entertaining the preliminary objection of the 4th Respondent and whether same has merit?”
The appeal was taken on 21st January 2020 wherein counsel to the Appellant and 1st to 3rd and 4th Respondent adopted their respective briefs and made oral adumbrations in respect of their several postures in the appeal.
PRELIMINARY OBJECTION
Before delving into the arguments of parties, it is instructive on this note to state that the 1st – 3rd Respondents Counsel by way of preliminary objection challenged the competence of the Appellant’s appeal. The 1st – 3rd Preliminary objection is predicated on the following grounds:
1. That the Appellant did not seek the leave of the lower Court or this Court before bringing this appeal being an interlocutory decision of the Court below.
2. That the Court lacks jurisdiction to entertain this suit for being statute barred.
For the determination of the preliminary objection, counsel to the 1st – 3rd Respondents formulated two issues to wit:
1. “Whether this Appeal is competent in view of the provisions of Section 14 (1) and (2) of the Court of Appeal Act, 2004
2. Whether the Honourable Court has the jurisdiction to entertain this suit in that it is statute barred.”
ARGUMENTS ON PRELIMINARY OBJECTION
The substance of the 1st – 3rd Respondents’ argument is that the Appellant requires the leave of the trial Court and no such leave was sought and obtained before the present appeal. Counsel argued that the law is trite that leave is required in order to appeal against interlocutory decisions of the High Court. He relied on Section 14 (1) of the Court of Appeal Act, 2004; ROYAL EXCHANGE ASSURANCE NIG PLC V. ANUMNU (2004) ALL FWLR (PT. 207) 611. Relying on the case of ORAKOSIM V. MENKITI (2001) FWLR (PT.52) 206, he argued that where such leave is not obtained, the appeal is incompetent and must be struck out.
On the second limb of the preliminary objection, counsel relied on Section 2(a) of the Public Officers Protection Act and submitted that the action of the Appellant is statute barred. It is his further submission that the cause of action in the instant appeal arose on the 28th day of September, 2013 while the Appellant’s suit was instituted on the 4th day of August, 2014. He contended further that the suit having been commenced on the 4th day of August 2014 was instituted 11 months from the occurrence of the cause of action and the effect therefore is that the suit is statute barred and liable to struck out. Reference was made to the case of CO-OP BANK V. LAWAL (2007) 1 NWLR (PT. 1051); GOVERNMENT OF KWARA STATE V LAWAL (2007) 13 NWLR (PT. 1051) AT 357.
On the whole, counsel urged this Court to dismiss the appeal for being incompetent on the ground that it lacked jurisdiction and that the condition precedent was not fulfilled.
In response to the 1st – 3rd Respondents objection challenging the competence of this appeal, the Appellant submitted that the Court having struck out the Appellant’s suit on the basis of lack of jurisdiction, the decision therefore is a final decision for which no leave of Court is required. He cited the case of AKINSANYA V. UNITED BANK OF AFRICA LTD. (1986) 4 NWLR (PT. 35) 273.
On the second limb of the objection, i.e. that this Court has no jurisdiction to entertain the Appellant’s suit on the ground that the suit is statute barred, counsel submitted that the Appellant’s suit is not pending before this Court. He submitted further that the subject matter of the present proceeding before this Court is the Appellant’s appeal against the decision of the Court below striking out the Appellant’s suit. It is also his submission that the provision of Section 2(a) of the Public Officers Protection Act relied on by the 1st – 3rd Respondents is not applicable to the instant appeal.
Counsel argued that the applicable law in the instant appeal is the provision of Section 11(1) of the State Proceedings Law CAP. 146, Laws of Enugu State 2004 and that by going by the provisions of the said section, the statutory period of commencement of an action against a public officer in the civil service or public service of Enugu State is within a period of twelve months after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing effect. Counsel submitted that since that 1st – 3rd Respondents conceded that the time within which the Appellant’s suit was commenced was 11 months after the act complained of, then by virtue of Section 11(1) (supra), the suit of the Appellant was not statute barred.
On the whole, he urged this Court to dismiss the preliminary objection and proceed to determine the appeal on its merits.
RESOLUTION OF PRELIMINARY OBJECTION
The first limb of the preliminary objection has to do with whether or not the Appellant needed to seek the leave of the Court below before instituting the instant appeal. Appeal to this Court from the Court below is statutorily guided by the provisions of Sections 240, 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 242 provides for the circumstances where an aggrieved party is required to seek the leave of Court for the purpose of ventilating his grievance against the decision of the High Court of a State, the Federal High Court or the National Industrial Court.
On the other hand, Section 241 provides for when appeal shall lie to this Court as of right. Considering the facts of the instant appeal, the Appellant’s suit was struck out for want of jurisdiction on the ground that the Appellant failed to comply with the order of the Court below mandating him to pay the cost of N50, 000.00 to the 4th Appellant in Suit No. E/326/2013. Without dissipating much judicial energy on a seemingly obvious principle of law rooted in imprimatur of decisions of the Supreme Court and this Court, I am of the firm view that the decision of the Court below declining jurisdiction to entertain the suit is a final decision which no leave of Court is required before the Appellant can approach this Court on appeal for redress. The law is trite that the ruling of a Court that it lacked jurisdiction is a final decision. See the case of FAGORUSI & ANOR V. IBIYINKA & ANOR (2011) LPELR – 8976 (CA); UMEH & ANOR V. OKWU & ORS (2014) LPELR – 24063 (CA).
On the second limb of the preliminary objection which deals with whether or not the suit was statute barred in the light of the provisions of Section 2(a) of the Public Officers Protection Act. While the 1st – 3rd Respondents have argued vehemently that the applicable law in determining the limitation period is the Public Officers Protection Act (supra), the Appellant on the other hand argued that the provisions of Section 11(1) of the State Proceedings Law CAP. 146, Laws of Enugu State 2004 would apply in the circumstances of the case.
It has been established in a long chain of judicial authorities that in order to determine the period of limitation, recourse must be made to the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing the date with that on which the writ of summons was filed. See GBADEHAN V. KILADEJO & ORS. (2011) LPELR – 8911 (CA).
It is not a fact in issue between the 1st – 3rd Respondents and the Appellant that the cause of action arose on 28th September 2013 and the suit of the Appellant was instituted in the Court below on the 4th August 2014. (See paragraph 4.0 of the 1st – 3rd Respondents’ Brief of argument and paragraph 2.19 of the Appellant’s brief of argument). It is evident that the parties are in tandem with when the cause of action arose and when the action was instituted in the Court below. However, the only area of divergence is which of the extant provisions of the law is applicable in determining the limitation period, i.e. is it the provision of Section 2(a) of the Public Officers Protection Act or Section 11 (1) of the State Proceedings Law of Enugu State.
It is instructive to note that the 1st – 3rd Respondents are public officers of the Enugu State Government i.e. they are public officers of a state. The law upon which the 1st – 3rd Respondents are anchoring their argument on is an Act of the National Assembly which the Enugu State High House of Assembly has domesticated as the State Proceedings Law CAP. 146, Laws of Enugu State 2004.
It is my considered opinion that since the Public Officers in question are officers of the Enugu State Government, wouldn’t it be more logical that the most appropriate law applicable to govern the period of limitation should be the State Proceedings Law (supra)? Permit me to reproduce hereunder the Section 11(1) of State Proceedings Law (supra). The section provides as follows:
“No action or proceedings shall lie or be instituted under this Law unless it is commenced within twelve months after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof.”
Since it has not been established that the State Proceedings Law of Enugu State (supra) has been declared void by an order of any Court of competent jurisdiction, it follows therefore that the said law remains valid and subsisting. Consequently, computing the time between when the cause of action arose and when the action was instituted would reveal that the action of the Appellant was commenced within the time prescribed by the above section of the State Proceedings Law (supra).
Without further ado, I hold that the case of the Appellant having been commenced within the statutorily provided period under Section 11(1) of the Law (supra) is not statute barred. Accordingly, the 1st – 3rd Respondents’ preliminary objection is bereft of merit and ought to be dismissed. I so hold. I shall therefore proceed to consider the appeal on its merits.
MAIN APPEAL
It is the submission of the Appellant that in opposing the 4th Respondent’s preliminary objection, he filed a 13 paragraph affidavit wherein paragraphs 7, 8 and 9 contained facts as to the payment of the said N50, 000.00 being cost made in favour of the 4th Respondent by the Court below in Suit No. E/326/2013. Counsel submitted that the 4th Respondent did not file a further affidavit in denial of the depositions by the Appellant in paragraphs 7, 8 and 9 of his counter affidavit. He submitted further that in the absence of such denial, the 4th Respondent accepted those depositions as true. He argued that the law is firmly settled that where new facts in a counter-affidavit are not answered or addresses by the adversary in a further affidavit, the proper conclusion is that the facts stated in the counter-affidavit remain unchallenged and are deemed admitted by the adversary. He cited the case of ONDO STATE V. A.G. EKITI STATE (2011) 17 NWLR (PT 748) P. 706 AT 749 -750.
Counsel went ahead to submit that assuming but without conceding that the Appellant did not pay the cost as posited by the Respondents, such non-compliance with Order 23 Rule 1 (4) of the High Court Rules of Enugu State amounted to mere irregularity which ought not to have vitiated the suit by virtue of Order 5 Rule 1 of the High Court Rules.
He submitted further that the 4th Respondent having not filed his memorandum of appearance and statement of defence to the Appellant’s suit, he waived his right to complain about the purported non-compliance with a condition precedent to the commencement of the suit. He argued that the law is that a party wishing to rely on non-compliance with condition precedent to the commencement of an action must enter a conditional appearance to the suit and, at the earliest opportunity raise the point in his pleading. He argued further that failure to plead the alleged non-compliance amounts to a waiver. He referred this Court to the case of KATSINA LOCAL AUTHORITY V MAKUDAWA (1971) NSCC 19; (1971) 1 NMLR 100.
It is also the submission of counsel that any point of law raised without a defence first filed is incompetent and ought to be struck out. He relied on DAWODU V. AJOSE (2011) ALL FWLR (PT.580) 1334 at 1334 D – G.
On the whole, counsel urged this Court to allow the appeal and resolve the sole issue in favour of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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RESPONDENTS’ ARGUMENT
Learned counsel to the 1st – 3rd Respondents submitted that the Appellant failed to fulfill the condition precedent that will give the Court the power to entertain his subsequent claim. He submitted that it is the law that Rules of Court must be obeyed and the Appellant in total disregard to the provisions of Order 23 Rule 1(4) of the Enugu State High Court (Civil Procedure) Rules 2006 filed Suit No. E/299/14 without first satisfying the condition that will give the trial Court the competence to entertain it. On the legal consequences of failure of a party to fulfill a condition precedent, counsel referred this Court to the case of MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341.
Counsel submitted that the said exhibit evidencing the payment of the cost as posited by the Appellant speaks for itself and the Court below was right in its interpretation of that document. Counsel argued that the rule of interpretation is that if a document has a plain meaning, the Court will not go outside that meaning; it will give its plain meaning. He cited the provisions of Section 129 (6) of the Evidence Act.
He submitted that there is nothing on record to show that the 4th Respondent appointed the Registrar of the Court to receive the payment on his behalf. He contended further that in the absence of any these, the only conclusion that can be deduced is that the said Exhibit SIO1 was not made in compliance with the order of the Court.
The submissions of learned counsel to the 4th Respondent are substantially in accord with the submissions of the 1st – 3rd Respondents Counsel, I therefore need not reproduce the elaborate submissions of learned counsel having been made part of the judgment.
The Appellant’s counsel committed pages 7 – 9 of his Reply Brief to the Brief of the 1st – 3rd Respondents to address the submissions and arguments of the counsel to the 1st – 3rd Respondent.
RESOLUTION
I have read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. I consider the sole issue distilled by the Appellant as apt for the determination of this appeal. For sake of clarity, permit me to reproduce the said issue hereunder:
“Whether in the circumstances, the learned Chief Judge was right to have entertained and upheld the 4th Respondent’s preliminary objection; and to have struck out the Appellant’s suit? (Grounds 1, 2, 3, 4, 5, 6, 7 and 8).”
The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See IKPEKE V WARRI RIFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR – 44471 (SC)
On the conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter, the Supreme Court in the case of MADUKOLU & ORS V. NKEMDILIM (1962) 24023 (SC) held as follows:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” Per BAIRAMIAN, J.S.C ( Pp. 9-10, paras. F-D)
In the instant case, the Court below after granting the application of Appellant to withdraw his Suit No. E/326/2013 at pages 179 of the record of the appeal made an order as follows:
“The application for withdrawal not be objected to; it is granted.
There is cost of N50, 000.00 for the 4th defendant.”
The Appellant who was desirous of still seeking redress proceeded to file another suit which is the subject of the instant appeal. The 4th Respondent by way of preliminary objection challenged the competence of the suit on the ground that the Appellant was in disobedience of the Court order granting to the 4th Respondent a cost of N50, 000.00. Replying to the affidavit attached to the said Preliminary Objection, the Appellant filed a counter affidavit deposing to the fact that he had complied with the order of the Court and also attached therein the receipt of the payment as Exhibit SIO1. (See pages 183 – 186 of the record of appeal). In the affidavit attached to the 4th Respondent’s preliminary objection, the 4th Respondent deposed to the following facts at paragraphs 5, 6 and 7 as follows:
“5. That on 5/5/2014, Hon. Justice C.I. Nwobodo of Enugu State High Court, before whom the said suit No. E/326/2013 was pending, upon the respondent’s application, struck out the said suit and awarded costs of N50, 000 (Fifty Thousand Naira) in my favour. The record of proceedings embodying the striking out of the suit and award of cost is annexed hereto as Exhibit “C”
6. That the plaintiff/respondent subsequently instituted the instant suit which is of the same parties and subject matter as the previous suit that was discountenanced and struck out on their application.
7. That the plaintiff/respondent failed to pay the aforesaid cost before commencing this instant suit and the default has persisted uptil now. (sic).
In response to the depositions contained in the 4th Respondent’s affidavit, the Appellant in his counter affidavit deposed to the following relevant facts:
“7. That though I view the cost of N50, 000.00 (Fifty Thousand Naira) awarded against me as excessive and unwarranted on 7/5/2014, upon the advice of my Counsel, I paid the sum of N50, 000.00 (Fifty Thousand Naira) being the sum awarded against me into Registry of the Honourable Court for collection by the Applicant.
8. That I was issued with a receipt evidencing the payment of the sum. The revenue collector’s receipt issued to me is hereto annexed and marked EXHIBIT SIO1.
9. That the suit was filed on 4/8/2014, about 3 months after I had paid the cost awarded against me in the previous suit.”
The law is trite that in a matter decided on affidavit evidence, the depositions stand or take the place of oral evidence. See the decision of this Court in UCHE & ANOR. V. INEC & ORS. (2019) LPELR – 48396 (CA). In the instant appeal, the cost of N50, 000, 00 was granted in favour of the 4th Respondent and in the observance of the order of the Court below, the Appellant remitted the said sum into the Registry of the Court below. The 4th Respondent had initially alleged the non-payment of the said sum in his affidavit attached to the Notice of Preliminary objection. The Appellant on the other hand, controverted the depositions of the 4th Respondent and even went further to exhibit the receipt of payment. The 4th Respondent refused or neglected to file a further affidavit to the Appellant’s counter affidavit. It is trite that failure to swear to a further affidavit, where there is a counter affidavit, which is unchallenged, it is deemed that the counter affidavit is admitted as being correct. In other words, where there is unchallenged Counter affidavit evidence, the Court is at liberty to accept same as true and correct. I am of the opinion that the failure of the 4th Respondent to file a further affidavit confers substance on the counter affidavit of the Appellant. See ANAKPE & ANOR. V. A.G FEDERATION (2018) LPELR – 44620 (CA)
The lower Court at page 210 of the record of appeal held thus:
“I now turn to Exhibit S101. I must confess that I am unable to find in Exhibit S101 anything directly or even inferentially referable to the payment of the N50, 000.00 cost to the 4th defendant/applicant. Under Exhibit S101 it is clearly stated as follows:
“Fifty thousand naira being cost awarded against the plaintiff in suit No. E/326/13
There are two major raps of Exhibit S101:
(1) Nothing under it refers to the 4th defendant/applicant in favour of whom the cost was awarded.
(2) Exhibit S101 expressed that the award cost was against the plaintiff in suit no. E/326/13”.
We are dealing with suit No. E/299/14 not suit No. E/326/13. The inference drawn is that the plaintiff never intended to comply with the order of this Court relative to payment of lost (sic) in total disobedience to Order 23 Rule 4 HCR 2006 reproduced above.
From the foregoing it is clear that the plaintiff had not only shown bad faith, he has contumaciously sought to deceive this Court by making curious payment over Suit No. E/326/13 which does not exist.”
Flowing from the hills of the excerpts of the decision of the Court below, I am compelled to ask myself the following questions: “(1) in which of the suits was the order as to cost made? (2) Was cost made in favour of any other party apart from the 4th Respondent that made it impossible to infer that the cost that was referred to in Exhibit S101 was referring to that made in favour of the 4th Respondent?
It is on record that the only person whose favour the award of cost was made was the 4th Respondent and I therefore find it difficult to agree with the Court below that it cannot be inferred that the said money was paid in favour of the 4th Respondent. It suffices that Exhibit S101 which states on the surface that “Fifty thousand naira being cost awarded against the plaintiff in suit No. E/326/13” is substantial compliance with the order of the Court below. The Court below also erred when it held that “We are dealing with Suit No. E/299/14 not Suit No. E/326/13.”
If the authenticity of the Exhibit was a fact in issue, then I might be persuaded to be on the same page with the Court below and the Respondents. I am of the firm view that if the 4th Respondent was really interested in the said money paid as cost by the Appellant, the 4th Respondent could have approached the registry of the Court below to claim the said sum. Punishing the Appellant on the basis of the construction of the words on Exhibit S101 to me amounts to technical justice when it can be substantially inferred that the Appellant indeed complied with the order as to cost.
It follows therefore that the Court below erred in the evaluation of the affidavit evidence placed before it by the parties. I also do not agree with the Court below when it held that “the plaintiff had not only shown bad faith, he has contumaciously sought to deceive this Court by making curious payment over Suit No. E/326/13 which does not exist”, when Exhibit S101 at page 186 of the record of appeal is clear on the fact that the Appellant paid the said cost to the coffer of the Court below. (See paragraph 7 and 8 of the counter affidavit of the Appellant).
By reason of the foregoing, I resolve the sole issue distilled by learned counsel to the Appellant and adopted by this Honourable Court in favour of the Appellant and against the 1st, 2nd, 3rd and 4th Respondents. I find merit in this appeal and same is hereby allowed. The decision of the Enugu State High Court, Enugu Judicial Division, delivered by Honourable Justice I.A. Umezulike on 12th November, 2015 in Suit No. E/299/2014 is hereby set aside. Consequently, it is ordered that the suit be relisted for hearing. The order as to cost of N80, 000.00 (eighty thousand naira) made against the Appellant is hereby dismissed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. His Lordship has exhaustively considered the crucial issues in this appeal and I agree with the reasoning and the conclusion contained therein. The appeal is hereby allowed.
I abide by the consequential order made in the judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal has merit and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
TOCHUCKWU MADUKA, ESQ. For Appellant(s)
NKECHI OKEGBE, ESQ. PRINCIPAL LEGAL OFFICER, MINISTRY OF JUSTICE, ENUGU – for 1st-3rd Respondents
CHIKA NWAGU ESQ. – for 4th Respondent For Respondent(s)
