Otuokere Nwagboso & Ors. V. Ekwem Ejiogu (1997)
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ROWLAND, J.C.A.
This is a motion brought by the appellants/applicants pursuant to Order 3(3) and 4(1) of the Court of Appeal Rules, 1981 – praying this Court for
“(a) an order enlarging the time within which the defendants/appellants/applicants shall apply for a stay of the execution of the Judgment and Orders of the High Court of Imo State sitting at Nkwerre delivered and made on June 12, 1996 pending the determination of the Appeal against the said Judgment and Orders;
(b) an Order deeming as properly filed and served the defendants/appellants/applicants motion for stay of execution filed in this Court on 19/8/96 and fixed for hearing on 30/10/96.”
The motion is supported by an affidavit of twelve paragraphs deposed to by one John Enerenwa – a litigation clerk in the chambers of Chief Bon Nwakanma (SAN) who are solicitors to the applicants. The learned Senior Advocate for the applicants relies on all the paragraphs of the affidavit. Reference was made in particular to paragraphs 8 and 11 of the affidavit in support. The learned counsel for the applicants submitted that they got the Ruling of the Court below on 1st August, 1996. It was submitted also that it is not enough for the respondent to say in his counter-affidavit that the averments in the affidavit of the applicants are not true. It is the contention of the learned counsel for the applicants that the averments in their own affidavit have not been traversed by the counter-affidavit.
Mr. Egonu (SAN) for the respondent in his reply submitted that they filed a counter-affidavit of four paragraphs and they are relying on the counter-affidavit. It was stated that the Ruling dismissing the application in the lower court was delivered on 10/7/96. Reference was made to pages 1 and 10 of Exhibit ‘D’ and also paragraph 4 of the affidavit in support of this application. It was contended that by Order 3 Rule 3(3) of the Court of Appeal Rules, the application should be brought within 15days. It was submitted that the application was filed 25 days late and not four days as submitted by the Learned Senior Advocate for the applicants. It was also submitted that uncertainty is the beginning of falsehood. It was argued that Exhibit ‘D’ was certified on 19/7/96 and therefore, the date of certification determines the date of the receipt of Exhibit ‘D’. It is the contention of the Learned Senior Advocate for the respondent that the present application of the applicants for extension was filed on 24/9/96 and they did not satisfy the necessary conditions. Reference was made to the cases of N.A. Williams & Ors. v. Hope Rising Voluntary Society (1982) 1 & 2 S.C.145 and Chief Chukwuemeka Odumegwu Ojukwu v. Miss Stella Onyeador (1991) 7 NWLR (Pt. 203) 286. It was argued that the exercise of discretion of the court must be on fixed principles and must be justifiable. Reliance was placed on the case of U.B.A. Ltd. v. Stanhlban GMBH & Co KG. (1989) 3 NWLR (Pt. 110) 374. It was submitted that where a party has given reason for his delay in doing something it is not open to the adjudication to put in additional reasons. Reference was made to the case of Lasisi Bello Ogunlowo v. Prince O.A. Ogundare & Ors. (1993) 7 NWLR (Pt. 307) 610; Madam Fumike Ojo-Osagie vs. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131 at 154. It was submitted that this Court should not be carried away by sentiments. Reference was made to the cases of Ezeugo v. Ohanyere (1978) 6-7 SC. 171 at 184; Omole & Sons Ltd. v. Sanusi Alake Adeyemo & Ors. (1994) 4 NWLR (Pt. 336) 48 at 71.
Chief Nwanma (SAN) made a further submission that the whole of the submissions of the learned counsel for the respondent are hanging in the air as they have not traversed paragraphs 8 and 11 of their averments. He made reference to the cases of Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 – 113 – 114; Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 632 at 646. He therefore urged this Court to discountenance what is not in the counter-affidavit of the respondent. I consider paragraphs 8 and 11 of the affidavit in support of this application to be very germane. They read:-
“8. That I was only able to get a copy of the said Ruling by the 1st week of August 1996 due to administrative difficulties.
- That the delay in filing the said motion for stay of execution out of time was as a result of the delay in getting a copy of the said Ruling of July 10th 1996 delivered by the learned trial Judge.” In concomitant with the above paragraphs is paragraph 2 of the counter-affidavit of four paragraphs deposed to by Ekwem Ejiogu. Paragraph 2 reads:-
“2. That paragraphs 8, 11 and 12 of the affidavit of John Enerenwa sworn to at the Court of Appeal Registry, Port Harcourt, on the 24th day of September, 1996, in the above matter are completely untrue.”
My task in this matter is very simple as the application is based solely on affidavit evidence. I have taken a hard look at the counter-affidavit of the respondent and I am satisfied that the crucial averments in paragraphs 8 and 11 of the affidavit of the applicants have not been traversed by the counter-affidavit of the respondent. It is the law that paragraphs of affidavit not specifically denied are deemed to be admitted. See Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 2 NWLR (Pt. 135) 688.
I therefore take it that the respondent has admitted the facts deposed to in paragraphs 8 and 11 in the affidavit in support of this application.
It must be said also that facts contained in an affidavit form part of the documentary evidence before the court. I should like to repeat again that where an affidavit is filed deposing to certain facts and the other party does not file a counter-affidavit or a reply to a counter-affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. See Adekola Alagbe v. Abimbola & 2 Ors. (1978) 2 SC. 39; Badejo v. Federal Minister of Education & Ors. (1996) 91 – 10 MAC page 118. The learned Senior Advocate for the respondent, instead of filing a further and better counter-affidavit to counter the averments in paragraphs 8 and 11 of the affidavit in support of the application, decided to make oral submissions to vary the contents of an affidavit. In doing so, he cited a legion of cases which are inapplicable and irrelevant to the subject matter of how to counter facts deposed to in an affidavit. What the Learned Senior Advocate for the respondent did amounted to an exercise in futility to change the law governing affidavit evidence.
As by his conduct the respondent has admitted the crucial facts deposed to in paragraphs 8 and 11 of the affidavit in support of this application there is no reason therefore that should stop this Court from granting the reliefs sought by the applicants in their motion dated 23rd day of September, 1996 and filed on 24th September, 1996.
The said Motion of the Applicants is therefore granted as prayed. I therefore grant an extension of fourteen’ days within which the defendants/appellants/applicants shall apply for a stay of the execution of the judgment and Orders of the High Court of Imo Stale sitting at Nkwerre delivered and made on June 12, 1996 pending the determination of the Appeal against the said Judgment and Orders. 1 also make an order deeming as properly filed and served the defendants/appellants/ applicants’ motion for stay of execution filed in this Court on 19/8/96 and dated 8/8/96. I make no order as to costs.
Other Citations: (1997)LCN/0310(CA)
