YAKUBU MOHAMMED V. MOHAMMED BUKAR HARUNA AND 3 ORS

Legalpedia Citation: (2023-07) Legalpedia 84351 (CA)

In the Court of Appeal

GOMBE JUDICIAL DIVISION

Thu Jul 6, 2023

Suit Number: CA/G/29/2023

CORAM

A. B. GUMEL JCA
DANJUMA JCA
I. BANJOKO JCA

PARTIES

YAKUBU MOHAMMED

APPELLANTS

MOHAMMED BUKAR HARUNA AND 3 ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, FUNDAMENTAL RIGHTS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant, being a businessperson, employed the 1st Respondent under his business on the basis of Master/Servant relationship. As time went on, it was alleged the Appellant noticed cash and capital erosion in the business, enquired and felt suspicious of the 1st Respondent’s response. Consequently, the Appellant reported him to the 3rd Respondent’s office whereby the 2nd Respondent commenced investigation.

The 1st Respondent volunteered a statement to the 2nd Respondent however, before the investigation, some persons pleaded with the Appellant whereby he withdrew the complaint for amicable settlement on which basis, the 1st Respondent voluntarily surrendered his title document(s) and some amount of money.

The 1st Respondent later sought for fundamental rights to own property. The lower court, based on the facts placed before it granted the reliefs sought. Aggrieved, the Appellant filed this appeal.

HELD

Appeal allowed

ISSUES

Whether the trial court was right when it put reliance on the 1st Respondent’s affidavit (not minding the 1st Respondent’s admission to the newly raised facts in the counter affidavit) and grant the reliefs sought?
Whether the criminal complaint withdrawn before completion of investigation amounts to legal confusion in the instant case?

RATIONES DECIDENDI

FACTS – WHERE FACTS ARE NOT DENIED SPECIFICALLY NOR BY IMPLICATION

It is trite that a fact is deemed admitted if it is neither denied specifically nor by implication, having regards to other facts averred in the pleadings. Where therefore, a party fails to meet the facts pleaded by the opponent directly, either admitting or denying them by reason of the facts being peculiarly within personal knowledge of the opposite party, then the Defendant can be deemed to have admitted the facts pleaded by the other party. See the case of ODEDE & ANOR V. JONAH & ANOR (2019) LPELR-49040 (CA).

In the case of CBN V. INTERSTELLA COMMUNICATIONS LIMITED & ORS (2017) LPELR-43940 (SC), it was held that:

“The law is well settled that facts not denied are deemed admitted”

Per OGUNBIYI, JSC (P. 62, Para. D) – Per Mohammed Danjuma, JCA

AFFIDAVIT – THE RULES GOVERNING AFFIDAVIT EVIDENCE

The rules governing affidavit evidence and, in fact, any pleading, is that when a fact or facts is/are asserted and not denied or controverted by the adverse party, whose duty it is to do so, same is deemed admitted by him. In such a situation, the court would be justified to rely on the fact and use the fact to settle the issue in controversy if he asserted fact(s) is plausible. Section 75 of Evidence Act, provides:

“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing… or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings…”

Thus, by law, affidavit evidence is already admissible evidence before the court and the court is bound to use and act upon it, once it is not challenged or rebutted and is credible. See the case of OYEWOLE VS. AKANDE (2009) ALL FWLR ((Pt. 491) 813.

Similarly, the Supreme Court held in the case of B.V. MAGNUSSON V. K. KOIKI & ORS (1993) LPELR-1818 (SC), thus:

“Averments of facts on pleadings must be distinguished from facts deposed to in affidavit in support of application before court. Whereas, the former, unless admitted, constitutes no evidence, the latter are by law, evidence upon which a court of law may, in appropriate cases, act”.

Per IGUH, JSC (P. 26, Paras. D-E)

See also the cases of CHAIRMAN EFCC & ANOR V. LITTLECHILD & ANOR (2015) LPELR-25199 (CA) and ADEBIYI V. UMAR (2012) LPELR-7998 (CA). – Per Mohammed Danjuma, JCA

AFFIDAVIT – WHEN AN AFFIDAVIT IS DEEMED TO BE SELF CONTRADICTORY

In the case of EJEFOR V. OKEKE (2000) 7 NWLR (PT. 665) P. 363, it was held that affidavit is self-contradictory if information contained in it states inconsistent facts thereon.

The law is trite that where a party gives evidence that are inconsistent and contradictory on material facts, the court ought not attach any probative value to it. See the case of OSIGWELEM V. INEC (2011) 9 NWLR (PT. 1252) 456.

In the case of SUSAN SINMISOLA OLLY V. HON. OLUKOLU TUNJI & ORS (2012) LPELR-7911 (CA), it was held that:

“In the case of Ekekeugbo V. Fiberesima (1994) 3 NWLR Pt. 335 at 707 at Pg. 731 A-B the Court of Appeal held that an affidavit is self-contradictory if the information contained in its annexures states facts inconsistent with it. And the court went further to state in the case of Balogun V. Shonibare (1997) 3 NWLR (Pt. 493) 317 at Pg. 331C, that once an affidavit is self-contradictory, it need not to be challenged by the other party as whatever facts the affidavit intends to establish would have been destroyed by the contradiction in the annexures”.

Per OGUNWUMIJU, JCA (P. 38, Paras. A-B). – Per Mohammed Danjuma, JCA

FURTHER AFFIDAVIT – THE PURPOSE OF A FURTHER AFFIDAVIT

Furthermore, I agree with the submission of learned counsel to the Appellant that though the 1st Respondent has filed a further affidavit, doing so will not mask the stain and will not be of assistance to the 1st Respondent’s case, for, it is settled that the essence of filing further affidavit is to provide additional information not available in the first or main affidavit and secondly, to provide a reply to a counter affidavit. In the case of JOSEPH V. PDP & ORS (2020) LPELR 51193 (CA), it was stated thus:

“It is also important to look at the purpose of a further affidavit. This court has reiterated in the case of IWUOHA VS. NIPOST LTD (2003) 8 NWLR (PT. 822) 308; USMAN VS. GARKE (2003) 14 NWLR (PT. 840) 261 P. 13, PARAS. B-D, Per Abiru, JCA, that where are facts deposed in the affidavit in support contrary to the facts contained in the counter affidavit, a reply or further affidavit is unnecessary. It is elementary law that a reply or further affidavit to contest or challenge facts deposed in a counter affidavit is only necessary where such facts have not been taken care of in the affidavit”.

Per IDRIS, JCA (P. 56, Paras. B-E)

See also, the cases of UZODINMA V. IZUNASO (2011) LPELR-20027 (CA) 17-18, E-B and ONDO STATE V. AG EKITI STATE (2011) 17 NWLR (PT. 748) 706, 749-750. – Per Mohammed Danjuma, JCA

COURTS – CONDUCT OF COURTS IN RELATION TO SUBMISSIONS OF PARTIES

Asking a court to fish out that part of the 1st Respondent’s submission that is relevant to the issue raised without any attempt to point out same amounts to casting the net wide per chance a fish will turn up. Courts of law cannot do that as they act on the facts that are readily available before the court. – Per Mohammed Danjuma, JCA

RECORD OF APPEAL – THE IMPORTANCE OF THE RECORD OF APPEAL

…this court and the parties to the dispute are bound by the Record of appeal. See the case of O.O.M.F Ltd V. N.A.C.B Ltd (Supra) 165 LRCN AT P. 106, Sections 146 and 148 of the Evidence Act, 2011. – Per Mohammed Danjuma, JCA

AFFIDAVIT – WHERE CONTENTS OF AN AFFIDAVIT ARE NOT MET OR ADDRESSED BY THE OTHER PARTY

This court and indeed the Supreme Court have held 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. See the cases of OGOEJEOFO V. OGOEJOEFO (2006) LPELR-2308 (SC) 14, 1-B; 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) II NSCC 382; ALAGBE V. ABIMBOLA (1978) 2 SC 39, COSCHARIS TECHNOLOGIES V. GEOFFREY (2018) LPELR-49322 (CA) 34-36. – Per Mohammed Danjuma, JCA

COURTS – THE DUTY OF AN APPELLATE COURT

In the case of TIJJANI & ORS V. YABI & ORS (2017) LPELR-44606 (CA), it was held that:

“The duty of an appellate court is to determine whether an error had been committed by the lower court. The appellate court must then decide whether the alleged error is of such gravity and magnitude as to occasion a miscarriage of justice, thus necessitating the reversal of the judgment or decision of the trial court. See JASON UMESIE V. HYDE EKPENYONG ONUAGULUCHI (1995) LPELR-3368 (SC)”

Per SAULAWA, JCA (PP. 28-29, Paras. F-A) – Per Mohammed Danjuma, JCA

COMPLAINT – WHEN A COMPLAINT LODGED IS WITHDRAWN

When a complaint lodged is withdrawn, it means the complaint ceased to exist and is as though no such complaint was made. The position of law regarding this is that no one can grant that which is not sought for. Otherwise stated, a complaint lodged can be withdrawn at anytime on sufficient ground provided that a final order has not been made in the case. This is in line with Section 355, Administration of Criminal Justice Act 2015 as applicable to Yobe State under Section 375 thereof. – Per Mohammed Danjuma, JCA