CORAM

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OBANDE FESTUS OGBUINYA

MUHAMMAD IBRAHIM SIRAJO

ADEBUKONLA BANJOKO

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PARTIES

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CHELLARAMS PLC

APPELLANTS 

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UNITED BANK FOR AFRICA PLC

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, INJUNCTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant, a Public Limited Company, was a customer of the Respondent-a limited liability company that carries on the business of banking in Nigeria. The Respondent upon the application of the Appellant granted various credit facilities to the Appellant for several different purposes. The Appellant failed to repay those facilities despite repeated demands from the Respondent. The Respondent hence, instituted an action before the Federal High Court Lagos Division, claiming the repayment of the indebted sum of N2.3 Billion, interest thereon, N10M as general damages and cost of instituting the action. The Respondent further filed a motion ex parte for interim orders of Mareva injunction against the Appellant and 24 Nigerian banks, which was granted by the Court and the Appellants monies with the banks were attached and listed on the face of the motion ex parte. The Appellant filed a motion on notice, which sought for an order to discharge, vacate or set aside the interim order of Mareva injunction. In a considered ruling, the Court struck out the application of the Appellant for lacking in merit. Dissatisfied with the ruling of the Court, the Appellant appealed to the Court of Appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether the lower court was right to have held that some paragraphs of the Respondent’s Counter Affidavit did not offend the mandatory provisions of section 115 (1) of the Evidence Act 2011.

Was the lower court, having regard to the affidavit evidence, justified in refusing to set aside the interim Mareva injunction obtained ex-parte on demonstrably wrong principles of law and misrepresented material facts?

 

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RATIONES DECIDENDI

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AFFIDAVIT – MEANING AND CONSENT OF AFFIDAVIT

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“An affidavit means a deposition by a deponent stating clearly his factual position on the issue for consideration, see Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1.  It is settled law that an affidavit shall contain only statement of facts and circumstance and devoid of extraneous matters such as objections, prayers, legal arguments or conclusions, see – A.-G., Anambra State v. A.-G. Fed (2005) 18 NWLR (Pt. 958) 581; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; A.-G., Anambra State v. A.-G. Fed. (2007) 12 NWLR (Pt. 1047) 1; Ahmed v. CBN (2013) 11 NWLR (Pt. 1365) 352; Emeka v. Chuba Ikpeazu(2017) 15 NWLR (Pt. 1589) 345; Eze v. Unijos (supra); Zakirai v. Mohammed (2017) 17 NWLR (1594) 181; Stanbic IBTC v. L.G.C. Ltd (2017) 10 NWLR (Pt. 1679) 51.” PER O.F. OGBUINYA, J.C.A

 

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AFFIDAVIT- TEST FOR THE DETERMINATION OF THE PRESENCE OF FACTS AND CIRCUMSTANCES IN AN AFFIDAVIT.

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“The litmus test for the determination of the presence of facts and circumstances in an affidavit was re-echoed by Uwaifo, JSC, in Gen & Aviation Serv. Ltd v. Thahal (2014) 10 NWLR (Pt. 880) 50 at 73, in these incisive and illuminating words:

The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit.  If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact or of circumstances, then they qualify as statements of facts or of circumstances.  This means that affidavit evidence, like oral evidence, must as a general rule deal with facts and avoid matter of inference or conclusion which fall within the province of the court; or objection, prayer or legal argument which must be left to counsel.  If, therefore, affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted, but is simply regarded as extraneous to the determination of factual disputes.

See, also, Bamiyi v. State (2001) 8 NWLR (Pt. 715) 270.” PER O.F. OGBUINYA, J.C.A

 

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CASES CITED

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STATUTES REFERRED TO

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Evidence Act, 2011

 

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