Stephen Nweke & Anor V. Eze V. E. D. Orji (1989)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A.

This is one of those applications which counsel should refrain from bringing. It achieves nothing but waste of time and money. What is remarkable about it, however, is the important legal procedure it has raised. The applicants seek (a) an extension of time within which to appeal against a ruling of the Enugu High Court delivered on 13 July, 1988; (b) leave to appeal against the ruling; (c) an order that the notice and grounds of appeal as well as other accompanying papers be deemed properly filed; (d) an order permitting the appeal to be heard on the documents as compiled by the applicants; and (e) an order for accelerated hearing of the application.

The action brought in the court below is for a declaration that the announcement by which the respondent who is the traditional ruler of Awgu town fixed a date for the celebration of the Ikeji or new yam festival is illegal, unconstitutional, ultra vires, null and void; in addition an order of injunction to restrain the respondent from carrying out the said festival of 1988.

On 24 June, 1988 Ononiba J., heard an application ex parte by the applicants for an interim injunction, and that same day he granted it pending the determination of a motion on notice to the same effect fixed for 29 June. That ex parte interim injunction was discharged on 29 June at the oral request of counsel for the respondent. This was when counsel for the applicants who had commenced his argument of the motion on notice asked for an adjournment because counsel for the respondent complained that he had not been served with the claim, and that a further affidavit allegedly filed on 28 June had not also been served on him. Further hearing was adjourned, the trial Judge accepting the undertaking in Court by counsel for the respondent that the festival would not be performed before the motion on notice was determined.

The matter next came on for further hearing on 13 July, 1988. On that day, counsel for the applicants sought to use two affidavits headed 2nd further affidavit and 3rd further affidavit respectively which the applicants filed after further hearing had been adjourned on 29 June. The said further affidavits were in fact filed on 5 July, 1988. Counsel for the respondent objected on the grounds that they could not be allowed for use since they were filed after argument of the motion had commenced. He relied on Majoroh v. Fassassi (1986) 5 N.W.L.R. (Part 40) 243 C.A.

Counsel for the applicants had argued that he offered no argument on 29 June but the record proved him wrong. He however contended that leave to use such affidavit was at the discretion of the court. He relied on Order 35 rule 27 of the High Court Rules applicable in Anambra State which provides that:

“Upon the hearing of any motion the Court may, on such terms as it may deem fit, allow any affidavit to be used, although such affidavit has not been filed with the motion paper, and although a copy thereof has not been served on the opposite side along with the notice of motion.”

This Court sitting in Lagos (per Nnaemeka-Agu, J.C.A.) in Majoroh v. Fassassi (supra), although not directly interpreting Order 35 rule 27 above, said at pages 254-255:

“Another good reason why the affidavit should be disallowed is that the argument of the motion has opened. The broad principle is that it is the duty of a party – ‘to bring forward his whole case at once and not to bring it forward piecemeal as he found out the objections in his way’: Re New York Exchange Ltd. (1888) 39 Ch.D. 415. It is on the basis of this principle that courts insist that affidavits in support of a motion should be filed with the motion papers, or at any rate before the argument of the motion commences. See: Electric Telegraph Co. v. Nott (1847) 11 Jur. 273.

Affidavits filed later require the leave of court before they can be used (see for example Order 34 rule 4 of the High Court of Lagos (Civil Procedure) Rules 1972). On the same principle it has been held that it is only in very special circumstances, and not at the option of the parties, that leave will be granted to use an affidavit filed after the argument, if the motion has begun. See Lancashire Railway Co. v. Hattersley (1849) 68 E.R. 278. In any event when the use of such an affidavit has been objected to by the other side it will not be admitted or used in evidence. See In Re General Provident Assurance Co. Ltd. (Cross Case) 1867 L.J. 583.”

The trial Judge having been referred to Majoroh v. Fassassi (supra) felt persuaded by the objection raised by counsel for the respondent to the use of the further affidavits filed on 5 July, 1988, He said:

“It is beyond dispute from my records that the applicants had commenced arguement (sic) of the motion on notice. When the motion was adjourned till today to enable the applicants put their house in order. (sic). There is no way this court can hold, on the face of my records, that arguement (sic) of the motion has not commenced. It will make nonesense (sic) of court processes for the applicants, to feel free to begin their arguement (sic) de novo today and with fresh replies.

The decision in Fassassi’s case supra appears to me to be moonlight and I am intricably (sic), in this application bound by that decision. Since learned counsel for the respondent has objected to the use of the other further affidavit filed in this application after the 29/6/88 when arguement (sic) commenced, I hold that the further affidavit cannot be used.”

The applicable rule 27 reproduced earlier does not say an affidavit filed after argument of the motion has commenced will not be allowed to be used. I think it must be left to the discretion, in deserving circumstances, of the Judge.

If a party who intends to use such affidavit is still arguing his motion and the affidavit contains facts that will assist his case or the course of justice, there is hardly any reason, in my view, why it should not be allowed to be used.

I think of a situation where the Judge accedes to the request of a party to call oral evidence to assist in resolving the conflict in affidavit evidence. That oral evidence is additional to the affidavit evidence. It could be admitted even after argument has begun. If such oral evidence could be usefully put in the form of affidavit evidence, e.g. affidavit sworn outside the country under sections 79 and 80 of the Evidence Act, which happens to have come after arguments started, that is one of the occasions when it may be admitted by the Judge whether or not the opposite party objects.

Again, affidavit may be used to introduce a vital document which came to light after argument on a motion had started. As I said, the prevailing circumstances should be allowed to dictate how the trial Judge may exercise his discretion under rule 27. If Majoroh v. Fassassi (supra) was intended to Curtail the discretion of the Judge simply because after argument had begun the opposite party objected to further affidavit being used. I cannot, with due respect, accept it as the law on the matter in reference to the applicable rule 27 here.

The passage quoted from that case (Majoroh v. Fassassi) does not appear to me to have examined the relevant authorities cited therein against the language of rule 27. Rule 27 does not impose a time limit within which any such affidavit intended to be used may be filed. In this regard, I like to refer to Re Chifferiel; Chifferiel v. Watson (1888) 58 L.T. 877.

The short facts there were that the chief clerk (who was in the same position as a Judge in the matter before him) heard a summons supported with affidavits on both sides on 19 March. On 20 March he made a note that the purchaser of a certain land in that case was entitled to compensation in respect of some misrepresentation in the land sale. But at the request of the defendant the matter was adjourned into court. The adjournment was, however, delayed at the defendant’s request. On 15 May the defendant filed four fresh affidavits by surveyors as to the meaning of the term “made up” which was the bone of contention relating to certain roads traversing the said land alleged to have been “made up.”

On 16 May there was another appointment before the chief clerk to dispose of the question whether the matter should be adjourned into court. The chief clerk refused to read the fresh affidavits, and adjourned the matter into court. The purchaser then gave the vendor notice that he would read the new affidavits, and the vendor gave notice that he would object.

On the summons coming on for hearing in court before North J., he said:

“I think, Mr. Higgins, I must allow these affidavits to be read, but upon terms… For the future I shall consider the chief clerk’s having fixed a time for closing the evidence exactly the same thing as the Judge having done so. The hearing of an application before the chief clerk is the same thing as the hearing before the Judge, subject to the right which every party has to have any point referred to the Judge if he desires it. If the chief clerk makes an order it is the same thing as if the Judge had made it. I have no doubt that the Judge has power, on any application before him in chambers, to make an order that the evidence must be filed before a certain time. If that is done by the chief clerk, and the parties do not ask for a reference to the Judge, it is the same thing as if it had been done by the Judge. So, for, the future, in a case where a time for closing evidence has been fixed by the chief clerk, I shall not allow any affidavit to be read which has been filed after the time, unless I give special leave either on a separate application or at the hearing, or the chief clerk does so, which is the same thing.” (Emphasis mine)

Even when one party objects in a situation like this, that cannot affect the discretion of the Court as the above observation shows. The next case goes even further to make the position clearer. I shall not bother about the facts but the observation I shall cite from the case will sufficiently indicate what facts were in issue. The case is East Lancashire Railway Co. v. Hattersley (1849) E.R. 278 at 283-284 (8 Hare 72 at 85-86) where Wigram V. C. said:

“When a motion was brought on, and the opposite party applied for time to answer the affidavits, the usual course was to give time in the first instance, unless the case was said by counsel on the other side to be one which would not brook delay; and then the practice of the Vice-Chancellor of England was to hear the motion, and decide whether he would give them leave to file affidavits in answer to the particular parts of the case which he thought pressed them. That was invariably the course pursued. If the practice be as I am now told, that, until the Plaintiff’s case is over, the parties may go on filing affidavits, it is impossible that justice can be administered. The argument on the other side is opened; the defect in the case is pointed out; the Court itself makes observations which lead the attention of the parties to what are or may be supposed to be the weak points in the case; and before the counsel sits down, new affidavits are poured in, to which the other side have no opportunity of addressing themselves. One might even suppose a more extreme case to show that such cannot be the practice: the parties may keep back the most important affidavits purposely until the last moment. I am quite prepared for the answer I received from two of the Judges to whom I addressed a question on this point. The answer was that they always considered the Court had the discretion of allowing affidavits to be received at any time during argument, which the Court required or demanded, but it never was at the option of the parties to bring forward their affidavits in that way. Both of the learned Judges make use of the same expressions: ‘That there must be a very special case for it’. It amounts to no more than this: that the Court may, in this as in all other cases, regulate its own proceeding, and admit affidavits after the case is opened, if it should appear that the justice of the case requires it.” (Emphasis mine)

I must add (1) that if the position were to be that once a party objected to the use of further affidavit after argument has opened, the affidavit cannot be used, that will, in my opinion, unjustifiably curtail the discretion of the court contrary to the interest of justice; (2) that in reference to the observation of Wigram V. C. above, the point to note is that rule 27 applicable in Anambra State makes it possible for the parties to bring forward any affidavit they intend to use and does not make it the prerogative of the court to call for them before they can be used.

The undeniable point of agreement, however, is that the discretion whether to allow any affidavit rests with the court as occasion demands to enable him to dispense justice. In addition, I hold the view that since the court may regulate its own proceedings, it can in any particular case fix a time limit within which affidavits to be used in respect of any particular motion should be, in so that the parties do not have a field day filing affidavits at any stage. But even at that I should make it quite plain that at the discretion of the Court in special circumstances, affidavits filed thereafter may be allowed for use. That is the essence of the principles in Re Chifferiel (supra) and Hattersley’s case (supra). It will then be with leave of the Court which will be granted only if the reasons for the delay and the importance of the evidence in all the circumstances are very convincing.

Coming to the merit of the present application before this Court, the further affidavits sought to be used by the applicants do not seem to possess the quality of enhancing the case being presented in the Court below. They do not show that in the interest of justice the trial Judge was wrong to have not allowed them to be used. Furthermore, the application now brought by the applicants does not disclose prima facie grounds of appeal why the appeal should be heard. The Judge was right to have refused the use of the further affidavits in the circumstances but not because the opposite party objected. Again, the three prayers, which must be sought together are not complete on the motion paper, namely (a) extension of time to apply for leave to appeal, (b) leave to appeal, and (c) extension of time to appeal: see Ibodo v. Enarofia (1980) 5 – 7 S.C. 42; In re Adewunmi & Ors. (1988) 3 N.W.L.R. (Part 83) 483 at 497.

The application is without merit. Prayers (a) – (d) are therefore refused. The application is dismissed with N100 costs to the respondent.

Other Citations: (1989) LCN/0085(CA)