United Bank for Africa Plc V. Chief Saka Lawal Osula (2002)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
The applicant filed a motion on notice dated 20th of June 2001 in which he is seeking the following orders:
“1. An order for extention of time to seek leave to appeal against the judgment and Ruling of Honourable Justice J.O. Sadoh delivered in Benin City on 20/11/97 and 02/12/99 respectively in Suit No. B/6/3/97, United Bank for Africa Plc vs. Chief Saka-osula on grounds of law, mixed law and facts and/or facts only.
An order granting leave to appeal to the Court of Appeal against the said judgment and Ruling on grounds of mixed law and facts and/or facts only as shown in the proposed Grounds of Appeal annexed to the affidavit in support of this motion and marked Exhibit “C”.
An order for extension of time within which to appeal against the Judgment and Ruling of Honourable Justice J. O. Sadoh delivered in Benin City on 20/11/97 and 2/12/99 respectively between United Bank Plc. vs. Chief Saka Lawal-Osula on grounds of law, mixed law and facts and/or facts only.”
The application is supported by a seventeen paragraph affidavit deposed to by the applicant himself. The judgment, ruling and the proposed grounds of appeal which are respectively marked as exhibits A, B and C are attached to the affidavit.
Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 and 15 of the affidavit 5. are of moment to the instant application. I shall reproduce them as follows:
“1. That I am the Defendant/Judgment Debtor/Appellant/Applicant herein.
That the Judgment of the lower court was delivered against me on the 20th day of November 1999 and a copy of the said Judgment is herein annexed and marked as Exhibit “A”.
That the said Judgment of the lower court was delivered against me in my absence and without allowing me the right to put in my defence or counsel on my behalf (sic).
That thereafter the Plaintiff/Judgment Creditor/Respondent filed a motion on notice for leave to attach my ancestral house at No. 34, Lagos Street, Benin City in execution of the aforesaid judgment debt.
That the said motion was argued and ruling on the said motion was delivered by the Honourable Justice J.O. Sadoh on the 2nd day of December, 1999.
That immediately after the ruling on the motion, a report came to me that my first son who is heir apparent to the hereditary traditional title of Arala of Benin Kingdom took ill and I was running up and down to save his life until he finally died on 22/2/2000 at Napoli City Italy.
That I am informed by Tom E. OAIKHINAN ESQ. and I verily believe him that at the time I gave him the Record of Proceedings, the time allowed by the Rules of this Honourable Court for filing appeals had expired.
That the study of the Record of Proceedings and preparation of the Notice and grounds of Appeal by my counsel also took considerable time.
That the Notice and proposed Grounds of Appeal are now ready and herein annexed and marked as Exhibit “C”.
That I am informed by TOM E. OAIKHINAN ESQ and I verily believed him that I have substantial and arguable grounds of appeal.
That the grant of this application will not embarrass the Respondent.”
The respondent filed a counter-affidavit of twenty six paragraphs. I have carefully perused the entire counter affidavit and I found that it is incongruous by virtue of its opening paragraph and its paragraphs 1, 2, 3 and 26 which read:
“I, Morgan Ikponmwosa Solomon, Kale, Christian, Nigerian, Legal Practitioner of the Law Firm of Eghobamien & Eghobamien of No. 40, Adesogbe Road, Benin City do hereby make oath and state as follows:
That I am one of the counsel representing the Plaintiff/respondent in this Suit.
That I have the consent and authority of the Plaintiff/respondent to depose to this affidavit.
That I have read the affidavit in support of the Defendant/applicant’s motion filed on 20th June, 2001.
That I, Festus Ohiokhaubor Idonije, do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oath Act, 1990.”
(Underlining for emphasis)
It is apparent from the wording of the Counter Affidavit exhibited by the respondent that it was sworn to by two deponents. Thus paragraphs 1, 2 and 3 (above) are to the effect that M.I. Solomon was identified as the due deponent who had the consenting authority of the respondent to depose to averments of twenty five paragraphs. It, however, turned out at paragraph 26 that it was Festus O. Idonije who mysteriously made the solemn declaration without the attendant sincerity, conscientious belief and truth required by the Oaths Act of 1990. I am not unmindful of the fact that Section 90(g)(iv) of the Evidence Act 1990 deals with joint affidavit. The said Section reads:
“(iv) where two or more persons join in making an affidavit their several names shall be written in the jurat and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit.
The jurat of the instant counter Affidavit is devoid of stating the names of Solomon and Idonije as having sworn to the truth of the several matters in it. I am also not unmindful of the provisions of Section 84 of the Evidence Act 1990 that the Court may permit an affidavit which subsumes a Counter Affidavit to be used, notwithstanding that it is defective in form, if the Court is satisfied that it has been sworn before a person duly authorised. The defect in the instant Counter Affidavit is substantial. I hereby declare it incompetent. The Commissioner for Oaths before whom the Counter Affidavit was sworn abandoned his statutory function by allowing this unreliable prima facie evidence to be sworn before him with all the patented insincerity. This lackadaisical approach to work is strongly deprecated. It is settled that if an affidavit fails to comply with the Oaths Act 1990 and Section 90 of the Evidence Act, it shall, by virtue of any attendant substantial defect, be incompetent and/or invalid. See N.N.B. PLC VS. I.B.W INTERPRISES LTD. (1998) 6 N.W.L.R. (PART 554) 446 at 454. It is also trite that an affidavit meant for use in Court stands as evidence and must as nearly as possible conform to oral evidence admissible in Court. See Section 86 of the Evidence Act and ISHAYA BAMAIYI V. THE STATE AND ORS. (2001) 8 N.W.L.R. (PART 715) 270 at 287. Since the Counter Affidavit in this application is shrouded in insincerity, it is incompetent and therefore inconsequential. The respondent is deemed not to have filed any functional Counter Affidavit.
In moving the motion brought under Section 25(4) of the Court of Appeal Act Cap. 75 of the Laws of the Federation of Nigeria and Order 3 Rule 4(1)(2) of the Court of Appeal Rules 1981 as amended, T.E. Oaikhinan Esq., the learned counsel for the appellant referred to the three prayers therein as well as the seventeen paragraph affidavit in support. He relied particularly on paragraphs 7 to 9 of the affidavit and exhibits A and B to sustain the motion. He urged the Court to exercise its discretion in favour of the applicant in view of the depositions in 5. paragraphs 7 , 8 and 9 of the affidavit which set out the reasons for the delay in filing the appeal and relied on the Case of CHIEF VICTOR UKWU & 3 ORS. V. CHIEF M. BUNGE (1997) 8 N.W.L.R. (PART 518) 527 at 541. He submitted that the proposed grounds of appeal contain arguable grounds and with such arguable grounds, the Court should exercise some 10. flexibility while considering the delay. He relied on the cases of HOLMAN BROTHERS (NIG.) LTD. V. KIGO (NIG.) LTD. & ANOR. (1980) 8 11 S.C. 62 at 63 and OLOBA V. AKEREJA (1988) 3 N.W.L.R. (PART 84) 504. The learned counsel for the applicant referred to paragraphs 6 and 7 of the Counter Affidavit and urged the Court to discountenance them because they are legal arguments and conclusions. In support of this argument, he relied on Section 87 of the Evidence Act 1990 and O. IROEGBU & ANOR. V. R. OKWORDU (1990) 6 N.W.L.R. (PART 159) at 659. He finally urged the Court to allow the application.
It has been held for reasons set out in this ruling earlier on that the Counter Affidavit filed in behalf of the respondent is utterly incompetent and thereby inconsequential to the instant application. In effect, the Counter Affidavit is discountenanced. In view of the worthlessness of the Counter Affidavit, its paragraphs 6 and 7 frowned at by the learned counsel for the applicant will suffer the same negative fate as the entire Counter Affidavit.
The Court is now left to consider the deposition in the affidavit filed by the applicant to see if it will effectively sustain the prayers contained in the motion on notice. The sum total of the tripod prayers is for extension of time within which to appeal against the judgment and ruling of the lower court in Benin City delivered on 20/11/97 and 2/12/99 respectively in Suit No. B/6/3/97 in the case of UNITED BANK FOR AFRICA PLC VS. CHIEF SAKA LAWAL-OSULA.
It will, at the risk of repetition, be recalled that there is no functional Counter Affidavit in the instant application. It therefore becomes apparent that it is only the affidavit that will be considered by the Court. It is settled that where only the applicant filed an affidavit in a motion on notice, such affidavit, albeit evidence, must be cogent, compelling and unchallenged in support of his application in order to be entitled to a favourable ruling. Ruling in such a situation will not be entered for the applicant as a matter of course. See YESUFU V. KRUPPER INTERNATIONAL (1996) 5 N.W.L.R. (PART 446) 17; OLAJIDE V. ADEAGBO (1988) 2 N.W.L.R. (PART 75) 238. I consider these authorities which are based on matters initiated by Writs of Summons, pleadings and oral evidence apt for the instant case, since the depositions in affidavits meant for use in Court are prima facie evidence. See BAMAIYI V. THE STATE & ORS. (2001) 8 NWLR (PART.715) 270 at 287. In essence, the principle that states that Court should critically consider a matter wherein only the plaintiff adduces evidence before arriving at a decision is equally applicable to a motion on notice where only the affidavit is probatively available to the Court for the determination of an application.
It is trite that a party who seeks an extension of time to appeal must, by virtue of Order 3 rule 4 (2)of the Court of Appeal Rules 1981 as amended, satisfy two conditions, namely:
“(i) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed and
(ii) that there are grounds which prima facie show good cause why the appeal should be heard.” See, among several other authorities, the cases of UKWU V. BUNGE (1997) 8 N.W.L.R. (PART 518) 527 at 541; F. OKOLI V. A. A. AJOSE & 4 ORS. (1994) 8 N.W.L.R. (PART 362) 300 at 309 and 311; OBIKOYA V. WEMA BANK LTD. (1989) 1 N.W.L.R. (PART 96) 157 at 178 and HOLMAN BROTHERS (NIG.) LTD. V. KIGO (NIG.) LTD. (1980) 8 – 11 S.C. 43 at 63. In order to appreciate the practicability of the provisions reproduced above vis-a-vis the instant application, there is need to consider the prayers contained in the motion on notice, the supporting affidavit and the proposed grounds of appeal (exhibit C) annexed to the affidavit. Thus, first, all these three segments, in order to sustain the application, operate conjunctively. Thus, the tripod prayers in the motion appear to be in order. The three prayers (supra) are for extension of time to appeal against the judgment and ruling of the lower court in one exercise. It is now settled that a party can ‘include in one appeal’ appeals against a ruling and judgment in one exercise in order to avoid unnecessary delay by appealing separately provided that where such appeals are out of the time specified by Section 25(4) of the Court of Appeal Act 1990, the proper procedure is complied with in order to meet the unavoidable technicalities involved. See I. OGIGIE & 3 ORS. V. A.I. OBIYAN (1997) 10 S.C.N.J. 1 at 15. Secondly, paragraphs 6, 7, 8 and 9 of the affidavit contain good and substantial reasons for failure to appeal within time but they relate to only the ruling delivered on 3/12/99. The proposed grounds of appeal (exhibit C) which contain arguable grounds also relate to the ruling. I have examined the judgment and ruling the applicant intended to appeal against and I found that they were delivered on 20/11/97, 2/12/99 in Suit No. B/613/97. The Suit referred to in the prayers in the instant motion on notice is patently at variance with, that in the judgment and the ruling. Thus that Suit number is B/613/97. The Suit number in paragraph 3 of the affidavit tallies with that on the judgment and ruling. That number for emphasis is B/613/97. From the foregoing, it is not in doubt that the applicant and/or his counsel appeared to have been in a very confused state of mind when the motion and supporting affidavit were prepared and filed. It is common place that an affidavit draws breath from the prayers contained in the motion whether ex parte or on notice. Where the vital deposition or depositions in an affidavit are patently at variance with the prayer or prayers in the motion, such affidavit is on its own. The motion or application is thereby rendered bare and offensive to Order 3 rule 3(1) of the Court of Appeal Rules 1981 as amended. Order 3 rule 3(1) of the said Rules reads:
“3-(1) An application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.”
(Underlining for emphasis)
Rule 3 (1) of the Rules (supra) makes it mandatory that a motion on notice shall be supported by an affidavit. Where such affidavit is lacking or is on its own as in this case, the application is incompetent and open to dismissal when it has been moved.
I shall next beam the search light on the proposed notice and grounds of appeal which read in part:
“………
TAKE NOTICE that the defendant/Judgment Debtor/Appellant being dissatisfied with the ruling of Edo State High Court contained in the Order of the said Court dated the 2nd day of December 199(sic) doth hereby appeal to the Court of Appeal upon grounds set out in paragraph 3 and will at the hearing seek for Relief set out in paragraph 4……”(italicising for emphasis)
It is apparent from the above that the proposed notice of appeal relates only to the ruling whereas the application is to appeal against the judgment and ruling. The proposed Notice of Appeal, even though it specifically refers to the ruling, it is defective because the motion and affidavit that could have sustained it refer to different Suit numbers, that is to say B/6/3/97 and B/613/97 respectively.
Furthermore, the applicant indicated in the proposed notice of appeal that he will set out the relief sought in paragraph 4. He failed to do so in utter disregard for Order 3 rule 2(1) of the Court of Appeal Rules 1981 as amended. Rule 2(1) of Order 3 of the said Rules reads in part:
“2-(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called lithe notice of appeal”) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature-of the relief sought….”(Underlining for emphasis)
It is trite that the provisions of statutes and regulations made for particular situations more so when their application is imperative, are meant to be complied with to the letter. When such provisions are flouted by litigants, the relief or reliefs sought therefrom shall be incompetent. In the instant case, the Notice and Grounds of Appeal did not comply with rule 3(1) (supra). They are hereby incompetent.
The sum total of the foregoing is that the instant application is replete with discrepancies and open disregard for the enabling regulations already referred to earlier on. In effect, the application is devoid of notice of appeal against the judgment, functional notice of appeal against the ruling and operative affidavit. Since the Notice of Appeal is defective, it is needless to opine on whether there are grounds of appeal which prima facie show good cause why the appeal should be heard.
In view of the naked facts that the notice of appeal is defective and the applicant has not conjunctively satisfied the two conditions of first, showing good and substantial reasons for failure to appeal within time and secondly, that there are grounds of appeal which prima facie show good cause why the appeal should be heard, there is no cogent or compelling affidavit evidence to support his application.
The application accordingly lacks merit. It is thereby struck out.
I award no costs.
Other Citations: 2002)LCN/1215(CA)
