Whether Filing of Further Counter Affidavit is in Conflict with the Rules of Court?

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CASE TITLE: AZEEZ AKIODE & ORS v. MAROOF AKANBI OBI & ORS (2021) LPELR-56005(CA)

JUDGMENT DATE:  23RD NOVEMBER, 2021

JUSTICES:

  • UGOCHUKWU ANTHONY OGAKWU, JCA
  • FOLASADE AYODEJI OJO, JCA
  • ABBA BELLO MOHAMMED, JCA

COURT DIVISION: IBADAN

PRACTICE AREA: EVIDENCE – AFFIDAVIT EVIDENCE

FACTS:

The Appellants (Azeez Akiode, Joshua Oduntan and Joseph Oduntan) instituted proceedings against the 1st & 2nd Respondents (Maroof Akanbi Obi and Mubeen Adeyemi Talabi) in respect of land situate at Iyesi Village, Otta, Ogun State in another suit. The 3rd to 5th Respondents (Mr. Jacob Bankole, Mr. Taofik Akinode and Mr. Ezekiel Bankole) were joined as parties in the action. Upon being made parties, the 3rd to 5th Respondents counter-claimed. The action was settled as between the Appellants and the 1st & 2nd Respondents and the Terms of Settlement they entered into was made the judgment of the Court. Thereafter, the Appellants filed a Notice of Discontinuance of the action as it relates to the 3rd to 5th Respondents, who in turn withdrew their counter-claim. Both the action and counter-claim were struck out.

Barely nine months later, the Appellants commenced proceedings before the High Court of Ogun State by Originating Summons under Order 53 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules, 2008 for Possession of the said land. The 3rd to 5th Respondents were sued in a representative capacity. The parties filed and exchanged a glut of affidavits. In the course of proceedings, the Appellants raised a new issue in their Reply to the 3rd to 5th Respondents’ Counter-Affidavit, thereby necessitating the need for the 3rd to 5th Respondents to obtain leave of Court to file a Further Counter-Affidavit. The trial Court granted the leave to the Respondents. The Appellants maintained that the further counter-affidavit was alien to the High Court of Ogun State (Civil Procedure) Rules, 2008.

After the inter parties hearing of the Originating Summons, the Ogun State High Court in its judgment declined to determine the case on its merit and consequently struck out same on the grounds that the issues raised by the parties were contentious and could not be accommodated under the Order 53 Procedure.

The Appellants being dissatisfied with the decision of the lower Court, appealed to the Court of Appeal. 

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ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal on various issues among which was :

  1. Whether the learned Judge of the High Court was right when he granted leave to the Respondents to file a Further Counter-Affidavit to the Appellants’ Further Affidavit.

COUNSEL SUBMISSION:

The contention on the third issue for the Appellants was that there was nothing in Order 39 of the High Court of Ogun State (Civil Procedure) Rules, 2008 which allowed a party to file a “Further Counter-Affidavit” and that the lower Court allowing the 3rd to 5th Respondents to file a Further Counter-Affidavit was in non-compliance with the Rules which went to the root of the case and affected the foundation of the case. A Court process which is not known to law, it was maintained, was null and void ab initio since a Court will not accept innovations in procedure which conflict with the rules of procedure.

The Appellants referred to the Additional Records of Appeal and asserted that the High Court was wrong to allow the Appellants file a Further Counter-Affidavit on the ground that it was not overreaching. It was opined that in consequence, the lower Court utilizing the said Further Counter-Affidavit in arriving at its decision in the case, occasioned a gross miscarriage of justice. The exercise of discretion by the lower Court in allowing the filing of a Further Counter-Affidavit was said to be wrong as it was contrary to the Rules of Court which were made to be followed.

The contention of the 3rd to 5th Respondents Counsel was that Rules of Court serve as guidelines in the administration of justice and that where strict adherence will occasion miscarriage of justice, such adherence will be jettisoned by the Court. It was also stated that the lower Court had the inherent jurisdiction to grant leave to file a Further Counter-Affidavit based on the application of the 3rd to 5th Respondents in that regard. It was asserted that there was nothing in conflict with the Rules of the lower Court for the filing of a Further Counter-Affidavit and that it was an innovation to fill a lacuna in the Rules which arose in the circumstances of this case when the Appellants raised a new issue in their Reply to the 3rd to 5th Respondents’ Counter-Affidavit, thereby necessitating the need for the 3rd to 5th Respondents to obtain leave of Court to file a Further Counter-Affidavit. 

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DECISION/HELD:

In a unanimous decision, the Court of Appeal dismissed the Appeal for lacking in merit. The decision of the Ogun State High Court was affirmed. 

RATIOS: 

  1. EVIDENCE- AFFIDAVIT EVIDENCE: Whether filing of a further counter affidavit is an innovation which is in conflict with the Rules of Court

“Order 39 of the High Court of Ogun State (Civil Procedure) Rules, 2008 provides for parties to file affidavits in respect of motions and other applications. So, the filing of a counter-affidavit, so called or by whatever other cognomen is not strange to the Rules. Even though the Rules does not expressly provide for the filing of another affidavit after a Further Affidavit filed after a Counter-Affidavit, it does not also expressly prohibit the filing of a Further Counter-Affidavit after the applicant’s Further Affidavit. What the Appellants term an innovation which is not known to the Rules is not so. The Further Counter-Affidavit was filed with the leave of the Court first sought and obtained; an exercise of discretion by the lower Court which I have already stated was judicial and judicious. So, the situation is totally different from the case of MOBIL vs. MONOKPO (supra) where the apex Court deprecated the filing by counsel of a Notice of Cross Motion without an affidavit in support, which is not known to the Rules of Court and which was also not filed with the imprimatur of the Court.

I am not enthused by the Appellants’ contention that the filing of a Further Counter-Affidavit is an innovation which is in conflict with the Rules. The Merriam-Webster’s Dictionary defines the noun “conflict” as meaning “competitive or opposing action of incompatibles: antagonistic state or action (as of divergent ideas, interests or persons)”. It goes on to define the verb variant of “conflict” to mean: “to be different, opposed, or contradictory: to fail to be in agreement or accord.” In EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 18, the Supreme Court relying on the Oxford Advanced Learners Dictionary, 8th Edition held that “conflict” denotes a persistent situation of serious disagreement in opposing ideas or wishes which makes preference of one to the other difficult. See also THE NIGERIA POLICE vs.  ANWAN (2017) LPELR (43610) 1 at 14-15.

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I iterate that the filing of a further counter-affidavit is not expressly forbidden by Order 39 of the High Court of Ogun State (Civil Procedure) Rules, 2008. The said order provides for the filing of affidavits, so to that extent the cognomen “further” prefixed to the additional counter affidavit filed by the 3rd to 5th Respondents, with leave of Court, is neither incompatible nor antagonistic to the Rules. It is neither opposed, contradictory or in discord with the Rules for it to be said to be an innovation that is in conflict with the Rules. In a summation, I make bold to hold that there is no non-compliance with the High Court of Ogun State (Civil Procedure) Rules, 2008 and that the lower Court properly exercised its discretion when it granted leave for the 3rd to 5th Respondents to file the Further Counter-Affidavit to meet the fresh facts introduced by the Appellants in their Reply to the Counter-Affidavit, and no miscarriage of justice was occasioned by the manner in which discretion was exercised by the lower Court.” Per OGAKWU, J.C.A.

  1. APPEAL – INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interfere with the exercise of discretion by a lower Court

“In the diacritical circumstances of this matter, the order of the lower Court granting leave for the Further Counter-Affidavit to be filed was just and equitable. The exercise of discretion was discretio legalis est scire per legem quid sit justum (a discretion to do what is just through the law): FAGBENRO vs. OROGUN (supra). The discretion having been judicially and judiciously exercised; this Court cannot interfere even if it would have exercised the discretion differently. See BAKARE vs. ACB LTD (1986) LPELR (708) 1 at 26, BRAITHWAITE vs. DALHATU (2016) LPELR (40301) 1 at 24-25 and ALIOKE vs. OYE (2018) LPELR (45153) 1 at 19-20.”Per OGAKWU, J.C.A. 

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