Chief Martha Udusegbe & Ors. V. Shell Petroleum Development Company Nigeria Ltd & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
SHOREMI, J.C.A.
This is an application brought by the plaintiffs/applicants for themselves as on behalf of Okerenkoko/Bibiokpre-Zion/Nkpemu Akpata/Egwal/ Asiafama Communities/Village/Fishing Camps by Chief Martha Udusegbe (suing as lawful attorney against the defendants/respondents. By a motion on notice under Orders 3 6(1), 7(2), (3) of the Court of Appeal Rules, 2002 and section 16 of the Court of Appeal Act asking for the following orders.
“1. An order extending the time within which the appellant/applicant may seek leave to appeal against the ruling of the Federal High Court, Benin Division delivered on the 5th of May, 2004 by Honourable Justice Kolawole.
2. An order granting leave to appeal against the ruling of the Federal High Court, Benin Division delivered on the 5th of May, 2004 by Honourable Justice Kolawole.
3. An order extending the time within which the applicant may appeal against the ruling of the Federal High Court, Benin Division delivered on the 5th of May, 2004 by Honourable Justice Kolawole and file the annexed proposed notice of appeal and ground of appeal (exhibits “A”) out of time.
4. Leave to appeal against the order of cost.
5. An order of this Honourable Court staying execution of the order of cost made against the plaintiffs and order suspending further hearing in the case delivered on the 5th of May, 2004.”
The application is supported by an affidavit of 25 paragraphs sworn to by the said Martha Udusegbe.
For ease of reference paragraphs 1 – 12 are reproduced hereunder.
“I Martha Udusegbe, Female, Christian, Nigerian citizen, legal practitioner of No.1 Ufuoma Close, Off Dugbo Avenue, Off Udu Road, Enerhen, Delta State, hereby make oath and state as follows: That:
1 That I am the appellant/applicant in this appeal by reason of which I am conversant with the facts of the case.
2. That I filed a motion for judgment in this case which was fixed for hearing for 2 days for 5th and 6th of May, 2004.
3. That the defendants filed a counter-affidavit after the fixture and I filed a reply to it which I served on the defendants through the 1st defendant by registered post and I duly filed an affidavit of service to that effect.
4. The court ruled that service by registered post on respondents was not a substituted service without dispute on the issue/mode of service and the court then awarded cost of N12, 500.00 against me.
5. That being totally dissatisfied by the order of cost, I decided to appeal against the said ruling.
6. That I requested for the certified true copy of the ruling but could not get it before the expiration of 14 days.
7. That I also attempted to file an application for leave at the Federal High Court but the learned trial Judge was not available at the material time that I attempted to file my application to fix a date for hearing of the motion for leave and the 14 days eventually ran out.
8. That the proposed ground of appeal contained in the notice of appeal is grounds that complains of lack of jurisdiction of the court on the mode of service and improper exercise of discretionary power. The ground is weighty and substantial in the administration of justice attached and marked exhibit ‘A’.
9. That I need an order of this Honourable Court staying execution of order of cost made against the plaintiff pending the determination of this motion and order suspending further hearing in the case.
10. That the order of cost will work great hardship on the plaintiffs whose economy and source of livelihood have been devastated by oil spillage from defendants’ facilities since 1998.
11. That the order suspending further hearing will work hardship on the plaintiffs.
12. That the order is not made judicially and judiciously. The order does not supercedes the lawful means of a lawful execution of the order.”
There is also a further affidavit in support of motion dated the 24th day of January, 2005 sworn to by the same applicant to the affidavit in support to which the ruling of the court below is attached as exhibit ‘B’.
The defendant/respondents filed a counter-affidavit sworn to any one Dr. George Ogunyomi a Senior Legal Counsel in the office If the 1st respondent. Paragraphs 1 – 9 of the counter-affidavit reads:
Quote:
“1. I am a Senior Legal Counsel and Head, Lands and Litigation Services in the Western Operations Areas of the Shell Petroleum Development Company Nigeria of Limited (hereinafter referred to as “Shell”) the 1st defendant in this case.
2. I have the authority of all the defendants/respondents to depose to this 1st counter-affidavit.
3. The facts deposed to in this 1st counter-affidavit are facts which I know by virtue of my office.
4. I have read the appellant/applicant’s affidavit in support of motion dated May 31, 2004.
5. The defendants/respondents deny paragraphs 2, 3, 4, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24 and 25 of the appellant/applicant’s affidavit.
6. The order of cost of N12, 500.00 (Twelve Thousand, Five Hundred Naira) (Two Thousand, Five Hundred for each defendant) was made against the plaintiff on May 5, 2004.
7. The plaintiff was ordered by the trial Judge in the exercise of his judicial discretion to pay the cost of N 12, 500.00 (Twelve Thousand, Five Hundred Naira) at the next adjourned date of the case, July 21 and 22, 2004, which order the plaintiff failed to obey.
8. The defendants/respondents deny paragraph 9 of the appellant/applicant’s affidavit.
9. There is no further matter pending before the lower court in this case. The final judgment was delivered in this matter on February 2, 2005.
10. The defendants/respondents will be highly prejudiced if the application is granted.
11. That it is not in the interest of justice to grant the application.
12. I depose to this 1st counter-affidavit in good faith and in accordance with the provisions of the Oaths Act.”
At the hearing of the application on 29th day of November, 2006, Mrs. Udusegbe of counsel appearing in person sought the leave of court to withdraw prayer 5 of the application which reads:
“5. An order of the Honourable Court staying the execution of the order of cost made against the plaintiff and order suspending further hearing in the case delivered on the 5th of May, 2005.”
There was no objection from Chief Akinjide, SAN (leading counsel for the respondents). Prayer 5 of the application having been withdrawn was struck out by this court.
Chief Udusegbe in arguing her application referred to the prayer on the motion papers and also referred to her affidavit in support upon which she relied and a further affidavit particularly paragraphs 6 & 7.
She argued that where a litigant who is expected to take an action within a specified time and time to do that act has expired, he is entitled to bring the case in the Court of Appeal. She referred to In Re: Williams (No.1) (2001) 9 NWLR (Pt. 718) 329. She submitted further that the grounds of appeal exhibited in her proposed grounds of appeal are weighty. She stated that discretion must be exercised judicially and judiciously and urged the court to grant her application.
Chief Akinjide SAN leading counsel to the respondents referred to paragraph 8 of the affidavit in support and the hand-written part which refers to ‘exhibit A’, the purported notice and grounds of appeal. He argued that if exhibit ‘A’ the purported notice and grounds of appeal is out, the application can not succeed. There is no notice of appeal. He submitted that any alteration or addition to an affidavit needs to be re-sworn. He said in this case it can not be used.
He referred to section 90 of the Evidence Act and the case of Ijaodola v. Registered Trustees of C & S.C.M. (2006) 4 NWLR (Pt. 969) 159 at 163.
He says any alteration affects the entire affidavit in support and that the existence of the affidavit is in doubt.
On the attachment of the ruling of the lower court, he says the further affidavit was without the leave of the Court of Appeal when it is evident that the further affidavit was filed when the application had been listed.
Refer to Ikenna v. Bosah (1997) 3 NWLR CPt.495) 503 to that reasons given to paragraph 6 of the affidavit in support is untenable and that this application should be refused.
Chief Udusegbe in replying called in her aid section 84 of the Evidence Act as to the use of defective affidavit. She submitted that there is no irregularity on the face of the motion paper and that the court should be concerned with doing substantial justice relying on Soleye v. Sonibare (2002) FWLR (Pt. 95) at 221; (2002) 10 NWLR (Pt. 775) 380, and urged the court to grant the application.
Section 90 of the Evidence Act especially sub section (d) reads:
“90(d) any erasure, interlineations or alteration made before the affidavit is sworn, shall be attested by the person before whom it is taken, who shall affix his signature or initial in margin immediately opposite to the interlineations, alterations or erasure;
(h) The person before whom it is taken shall not allow an affidavit, when sworn, to be altered in any manner without being re-sworn;
(i) If the jurat had been added and signed the person before whom it is taken shall add a new jurat on the affidavit being re-sworn; and in the new jurat he shall mention the alteration;
(j) The person before whom it is taken may refuse to allow the affidavit to be re-sworn, and may require a fresh affidavit.
Under S. 84 of the Evidence Act, the court may permit an affidavit to be used notwithstanding its defect in form if the court is satisfied that it has been sworn before a person so authorized and under S. 85 of the same Act, the defect may be amended but has to be re-sworn by leave of court.”
In the application under consideration paragraph 6 to which the respondent objected the addition/handwritten part of the paragraph earlier reads “attached and marked exhibit ‘A’
(Italics mine)
Exhibit A is the notice and grounds of appeal dated 7th day of July, 2004 on which the applicant relied upon in her application.
There is no doubt that without exhibit A the application will be incompetent.
See Ikenna v. Bosah (1997) 3 NWLR (Pt. 495) 503. Under S. 90 of the Evidence Act, any erasure or alteration shall be attested to by the person before whom it is taken, who shall affix his signature or initial in the margin immediately opposite to the alteration or erasure, there is no indication of any attestation by the person before whom the affidavit in support is taken; it therefore becomes doubtful.
It is clear from the provision of the evidence that an affidavit shall not be defective.
Section 84 however provides that –
“The court may permit an affidavit to be used, notwithstanding it is defective in form …”
This provision is always taken for an all saving provision but that certainly is not the case. It is only intended to save only affidavit that are defective “in form” and not those that are defective in substance. In the case of Ijaodola v. Registered Trustees of C & S.C.M. (2006) 4 NWLR (Pt. 969) 159 this court (Ibadan Division) held as follows –
“It is contrary to section 90(d) of the Evidence Act for affidavits to contain unattested erasures, interlineations and alterations and section 90(h) of the Evidence Act also forbids the Commissioner for Oaths to permit such erasures, interlineations and alterations after the affidavit has been sworn without re-swearing it. Where the erasures, interlineations and alterations have not been attested by the Commissioner for Oaths and the affidavit has not been re-sworn, it may safely be presumed that the erasures, interlineations and alterations on the affidavit had been made after the affidavits had been sworn and that the Commissioner for Oaths knew nothing about them.” In the instant case, the Court of Appeal declined to exercise its discretion under S. 84 of the Evidence Act to permit the applicant’s affidavits to be used in the application since the erasures, interlineations and alterations contained in the affidavit were not attested to by the Commissioner for Oaths and the affidavits were not re-sworn, and the implication is also stated on the same case as follows:
“Where a court declines to exercise its discretion under section 84 of the Evidence Act to permit a defective affidavit in support of an application to be used in the application, the implication is that the application is totally unsupported by any affidavit. The further implication is that no facts or materials have been placed before the court on which it can exercise its discretion to grant or not to grant the application.
I can not agree less with the submission of the respondents that the addition of the words “attached and marked exhibit ‘A’ in paragraph 8 of the affidavit in support goes to the substance and not form and therefore the affidavit as a whole cannot be relied upon in its application. I am to add that in viewing the proposed notice and grounds of appeal there is also an addition which is hand-written. Counsel should prepare their documents in cases before the court with utmost care to avoid constant erasure, alteration and mutilation.
In totality, this application is incompetent and therefore ought to be struck out, and it is hereby struck out with N5, 000.00 costs to the respondents.
Other Citations: (2007)LCN/2252(CA)
