(2021) Legalpedia (CA) 10811
In the Court of Appeal
HOLDEN AT GOMBE
Tuesday, March 16, 2021
Suite Number: CA/G/454/2020
JUMMAI HANNATU SANKEY
TUNDE O. AWOTOYE
ALHAJI MUHAMMAD BABA AHMED || THE GOVERNMENT OF GOMBE STATE
AREA(S) OF LAW
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Applicant/Appellant by a Motion on notice praying for leave to file Further and Better Counter affidavit to the 1st and 2nd Respondents’ affidavit and Further Response to the 1st and 2nd Respondents argument on Ground 1, an order deeming the Further and Better Counter affidavit as duly filed and served. The motion is supported by a 5 paragraph affidavit, attached to which is Exhibit C, “the Further and Better Counter-affidavit to the 1st and 2nd Respondents affidavit in support of 13/1/2020” and “Further Response to the 1st and 2nd Respondents’ argument on Ground 1”. In arguing the application on 13-01-21, learned Counsel for the Applicant, A.A. Sangei, Esq., urged the Court to grant the application, more so that the 3rd Respondent did not file a counter-affidavit. In response, learned Counsel for the 1st and 2nd Respondents, M.I. Abubakar, Esq., submits that no materials have been placed before the Court to support the grant of this application. He argues that the application seeks the exercise of the discretion of the Court, which discretion can only be exercised judicially and judiciously.
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Issues Of Determination:
AFFIDAVIT EVIDENCE – BEST WAY TO CHALLENGE AN ASSERTION IN AN AFFIDAVIT OR COUNTER AFFIDAVIT
“The law is settled that when a party disbelieves an assertion in an affidavit or counter-affidavit, the best way to dispute/challenge it is to file a further or better affidavit to counter same, rather than attempting to do so by oral argument in Court. This is obviously because arguments cannot substitute evidence. In cases fought on affidavits, the evidence adduced before the Court is what is averred in the affidavits before the Court. Thus, where a party disagrees with or challenges the content of an affidavit and has evidence to challenge it, the only way to bring it to the attention of the Court is by way of a duly sworn affidavit – Anakpe V AG Federation (2018) LPELR-44620(CA) 10; Forson V Calabar Municipal Govt. (2003) LPELR-7273(CA) 19; Owuru V Adigwu (2017) LPELR-46763(SC); Henry Stephens Engineering Ltd V S.A. Yakubu (2009) LPELR-1363(SC).
AFFIDAVIT EVIDENCE – EFFECT OF FAILURE TO FILE A BETTER AFFIDAVIT IN RESPONSE TO EITHER AN AFFIDAVIT OR COUNTER-AFFIDAVIT
“The position of the law is also settled to the effect that the failure to file a better affidavit in response to either an affidavit or counter-affidavit, makes the facts in such affidavit or counter-affidavit to remain unchallenged and uncontroverted – Watharda V Ulararamu (2014) LPELR-24175(CA) 10; AG Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 743) 706; University of Ilorin V Oyalana (2001) FWLR (Pt. 83) 2193, 2206; Uzondu V Uzondu (1997) 9 NWLR (Pt. 521) 466”.
AFFIDAVIT EVIDENCE – MODE OF RESPONDING TO AN APPLICANT’S AFFIDAVIT
“In this vein, I have examined Order 6 Rule 1 of the Court of Appeal Rules, 2016 which provides – “1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.” More pertinent to this set of facts is Order 10 Rule 1 of the Rules (supra). It provides – “1. A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time. Thus, it is apparent that the Rules are silent on the filing of a counter affidavit and a Further affidavit. It is however correct that by rules of practice, a party is entitled to respond to an applicant’s affidavit by way of a counter-affidavit, and thereafter, an applicant may file a further and better affidavit responding to the facts deposed to therein. Thus, matters fought on affidavit evidence usually close with the filing of an affidavit, counter-affidavit and further and better affidavit. In other words, the filing of a further and better counter-affidavit is somewhat unusual. That is not however to say that it is illegal or not in consonance with any of the Rules of this Court.
COURT – DUTY OF COURT WHERE A SITUATION IS NOT PROVIDED FOR BY LAW, RULES OF COURT AND PRACTICE DIRECTIONS
“Consequently, I am of the view that it is precisely for circumstances such as this that are not provided for or covered by law or rules of Court, that Courts have been imbued with inherent power in Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which enable the Court to do substantial justice in any given situation that is not specifically provided for by Law, Rules of Court, Practice Directions and the like. It provides – “6. (6) The judicial powers vested in accordance with the foregoing provisions of this section – Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;” The Court can therefore exercise its inherent power and discretion where there are sufficient materials placed before it to do so, in the overriding interest of doing substantial justice, as opposed to technical justice.
AFFIDAVIT EVIDENCE – LEGAL IMPLICATION OF A PARTY’S FAILURE TO CONTROVERT AN AFFIDAVIT EVIDENCE
“However, the legal implication of the failure of a party to controvert any affidavit evidence is clear. It is that the averments in an affidavit which have not been challenged and/or controverted, are deemed admitted. Therefore, the Court will be entitled to believe and act on any averments stated in an affidavit that have not been answered or controverted by a further or better affidavit”.
AFFIDAVIT EVIDENCE – EFFECT OF A PARTY’S FAILURE TO RESPOND TO DEPOSITIONS IN EVIDENCE
There is the saying that “Silence is golden”. However, such does not hold water in matters where evidence is the holy grail. In circumstances in which a party is faced with devastating averments and he chooses to remain silent, that is, by not responding to the depositions by submitting evidence at his disposal to controvert such facts, then he will reap the consequence of his ‘golden silence’, which is that he would be deemed to have admitted those grave allegations against him – Zamfara State Govt. V Greenwich Trust Ltd (2019) LPELR-49787(CA) 2, B-E per Tobi, JCA; Dana Airlines Ltd V Amiaka (2017) LPELR-43050(CA) 24-25, A-E per Georgewill, JCA; Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211.
AFFIDAVIT EVIDENCE – EFFECT OF A FAILURE TO COUNTER ANY AVERMENTS IN AN AFFIDAVIT
“This principle of law was restated in the decision in Ogoejeofo V Ogoejeofo (2006) LPELR-2308(sc) 14, A-B. Therein, Mohammed, JSC stated – “… It is indeed the law as argued by the appellant that since the respondent had failed to file any counter affidavit to challenge the facts averred in the appellant’s affidavit in support of the preliminary objection to the competence of the respondent’s action, the unchallenged facts remained uncontroverted and therefore deemed admitted.” In the more recent decision of the apex Court in Akiti V Oyekunle (2018) LPELR-43721(CA) 7-8, F-D, Rhodes-Vivour, JSC held – “I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter affidavit, such facts not denied in the affidavit in support are remain the correct position and the Court acts on them except they are moonshine. Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to. See Akinsete V Akindutire (1996) 4 NSCC 157; Eboh V Oki (1974) 9 NSCC 29; National Bank (Nig) Ltd V The Are Brothers Nig Ltd (1977) 11 NSCC 382; Alagbe V Abimbola (1978) 2 SC 39.” Again, in a decision of this Court in Coscharis Technologies V Geoffrey (2018) LPELR-49322(CA) 34-36, Gumel, JCA held inter alia as follows: “… A further counter affidavit provides additional information not contained in the counter affidavit and a reply or answer to new facts raised in a further affidavit as in the instant further affidavit… The law is settled that depositions in a counter affidavit which are not challenged or controverted by the adverse party are deemed to have been admitted as true and in the same way, depositions in a further affidavit which are not challenged or controverted are deemed to have been admitted as true and the court can act on them.” Again in Niger-Benin Transport Co. Ltd V Okeke (2005) All FWLR (Pt. 256) 1286, 1302, this Court held: “A further and better affidavit performs two main functions in the judicial process. First of all, it provides additional information not available in the first or main affidavit in support of the motion, and secondly, to provide a reply to a counter affidavit. In either case, the law requires the facts deposed to remain facts.” See also Uzodinma V Izunaso (2011) LPELR-20027(ca) 17-18, E-B; Ondo State V AG Ekiti State (2011) 17 NWLR (Pt. 748) 706, 749-750; FBN Plc V Ndarake & Sons Nig. Ltd (2009) 15 NWLR (Pt. 1164) 406, 414-415. Therefore, the upshot of the decisions is that where facts in respect of anything deposed to in an affidavit, counter-affidavit or further affidavit are not met or addressed by the other party in a further and better affidavit as the need arises, the proper conclusion to reach is that the facts stated in any such affidavit remain unchallenged. A failure to file a better affidavit to challenge and controvert the depositions in the adverse party’s affidavit may turn out to be a fatal gamble. This is because where the depositions in an affidavit are not manifestly incredible or unbelievable, they will be acted upon by the Court. This is in tandem with the rule of practice in the filing and exchange of affidavit evidence that a party, upon being served with an affidavit containing an assertion of certain facts or a denial of a party’s allegation, disagrees with such facts, he ought to file a further affidavit to counter the assertions or the denial of the allegation. The effect of a failure to counter any averments in an affidavit is that the facts averred/deposed to therein prevail and will be acted upon by the Court. This is in accord with the principle that in civil cases, which are decided on the preponderance of evidence, the burden of proof lies on the party who would fail if no evidence is adduced – Section 137 of the Evidence Act, 2011.
AFFIDAVIT EVIDENCE – MODE OF RESOLVING CONFLICT IN AFFIDAVIT EVIDENCE
“Furthermore, I am of the firm and considered view that it is still within the purview of the Court’s power and discretion to invite oral evidence from parties where necessary where there is still conflict in the affidavit evidence before it, either upon the application of parties or suo motu – Section 116 of the Evidence Act, 2011. This is because the Court cannot resolve conflicts in affidavits on a material issue by evaluating the conflicting evidence. Any conflict in affidavit evidence ought to be countered by a further or better affidavit, either in respect of the supporting affidavit or in respect of the counter-affidavit – Arjay Ltd V Airline Management Support Ltd (2003) LPELR-555, per Onu, JSC; Falobi V Falobi (1976) 9-10 SC 1; Nigeria Army V Dunoma (2021) LPELR-52654(CA) 13, per Ndukwe-Anyanwu, JCA.
COURT – DUTY OF COURTS TO DO SUBSTANTIAL JUSTICE
“It is trite that Courts have since moved away from the realm of technicalities to doing substantial justice. In this respect, the apex Court has, in a plethora of decisions, held that matters should be determined on their merits and not on technicalities. It must be placed on the front-burner that Rules of Court are handmaids to Justice. Therefore, while Rules are made to be obeyed, where they serve to stultify the attainment of justice, they must take a back seat. More importantly, it has oft been repeated by the apex Court, as well as by this Court, that Courts must strive to do substantial justice and avoid undue reliance on technicalities to the detriment of justice to truncate a party’s case. Therefore, Courts are more interested in substance than mere form. This is because justice can only be done if the substance of the matter is examined; for reliance on technicalities to the detriment of substantial justice leads to injustice”.
STATUS(ES) REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|Evidence Act, 2011|
A.A. Sangei Esq. appears with S. Mohammed Esq., for the Appellant/Applicant.|M.I. Abubakar Esq. appears for the 1st and 2nd Respondents, with J.J. Lah Esq., SC Gombe State Ministry of Justice.|F.Z. Kaatpo Esq. appears for 3rd Respondent.|
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