Fidelis Ejike O. Ume & Ors. V. Nigeria Renowned Trading Co. Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

The dispute which has given rise to the motion has come a long way. It commenced from the High Court Onitsha, and got to the Supreme Court. It is making a repeat journey or trip. I need not tell the full story in this interlocutory matter. That has to wait probably, till the appropriate time. For now, I have to deal with the application brought by the applicant, Chief Dr. F. Ejike O. Ume. It is for stay of proceedings “in Suit No.0/403/92 pending the determination of the appeal against the-order of the Onitsha High Court contained in the ruling of His Lordship Hon. Justice C.J. Okoli on the 3rd day of April 1995 refusing to hear two motions which, inter alia, challenged the jurisdiction of the court and striking them out without hearing the applicants.”

Moving the application in person, Chief Dr. Ume, in his own right as Senior Advocate of Nigeria, relied on Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979, Order 3, Rule 3 of the Court of Appeal Rules, the 36 paragraph affidavit in support as well as the exhibits Verified therein. He submitted that where a party has not been given an opportunity to be heard, or defend himself or through counsel of his own choice, that amounts to breach of the principle of fair hearing, as enshrined in Section 33 of the 1979 Constitution. He relied on F.O.N. Atake v. Chief Nelson Afejuku (1994) 9 NWLR (Pt.368) 379 and Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233. Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233.

He contended that where an applicant has challenged the jurisdiction of the lower court which is refused, an appellate court will grant it. The court from where the appeal is lodged and the court to where the appeal is lodged have a duty to preserve the res and that res is the appeal, learned Senior Advocate submitted. He relied on Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 723.

Learned applicant contended that there are arguable points of law in the appeal. He referred to the Notice of Appeal and urged the court to grant the application in the interest of the preservation of the res.

Mr. B. O. Anyaduba, the 2nd respondent associated himself with the submissions of the applicant and urged the court to grant the application.

Learned Senior Advocate for the plaintiff/respondent, Mr. G.R.I. Egonu, in opposing the application relied on the 47 paragraph counter-affidavit sworn to on 28th June, 1996, the 14-paragraph counter -affidavit sworn to on 30th January, 1997 as well as the 39-paragraph affidavit sworn to on 3rd March, 1997.

Referring the court to the relevant paragraphs of the counter-affidavits, learned Senior Advocate submitted that the lower court overruled the objection of the applicant to jurisdiction and that a similar application for stay of proceedings at the lower court was dismissed on 19th June, 1995, and the applicant had 15 days within which to file a similar application in this court. Learned Senior Advocate argued that once an issue of jurisdiction has been previously dismissed, similar issue cannot be entertained.

Relying on Order 3 rule 3(3) of the Court of Appeal Rules, 1990, learned Senior Advocate submitted that the present application must be dismissed because it was not brought within the prescribed period of 15 days and no leave to extend time having been sought and granted.

The applicant, in his reply, submitted that the application is competent by virtue of section 6(6) of the 1979 Constitution and Order 3 Rule 3(4) of the Court of Appeal Rules. He submitted that by the combined effect of the constitutional provision and Order 3 Rule 3(4) of the Court of Appeal Rules, this court can entertain the application. Learned Senior Advocate argued that since Order 3 Rule 3(4) appears directory and not mandatory, this court can mitigate anything in the rule. To the applicant, the position should have been different if the mandatory “shall” was used. He urged the court to discountenance the decision of Chief Ojukwu v. Onyeador, supra, because the facts are not the same. He pointed out that while section 6(6) is a constitutional provision, Order 3 Rule 3(3) is a rule of court.

The applicant submitted that the counter affidavits of 39 paragraphs and 47 paragraphs cannot be relied upon because they were not duly exhibited in the counter-affidavit of 14 paragraphs. He urged that paragraph 13 of the counter-affidavit of 14 paragraphs does not avail the respondent because the facts in a counter-affidavit must be referrable to the motion in support of the relevant motion. Since the two counter-affidavits of 39 paragraphs and 47 paragraphs were in response to the affidavits which have been withdrawn they cannot stand, applicant contended. Once a motion is struck out, the affidavits in support as well as the counter-affidavit, including exhibits annexed thereto, go with the motion, applicant argued. The court can only look at live documents in its file and not dead documents applicant further argued.

Mr. Egonu, S.A.N., pointed out that the counter-affidavit of 39 paragraphs is before the court, and the court is entitled to look at the documents in its file, although a motion is struck out. He urged the court to look at all the counter affidavits.

There are quite a handful of affidavits which have generated some heat in the different positions taken by parties and or counsel. Applicant sought leave of court to withdraw his motion dated 18th October, 1996 and filed on 13th November, 1996. The motion was accordingly struck out. What is the legal status of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out goes with the supporting affidavit, including exhibits, if any. What happens to counter-affidavit in respect of the motion struck out? The applicant and learned Senior Advocate for the plaintiff/respondent take divergent positions. While the applicant submits that the counter-affidavit is also dead, learned Senior Advocate submits that the court can make use of it. The applicant is correct. With respect, learned Senior Advocate is wrong. Let me try to draw a fairly remote analogy. There cannot be a statement of defence without a statement of claim. There cannot be a Reply without a statement of defence. Similarly, there cannot be a respondent’s brief without an appellant’s brief. There cannot be a Reply brief without a respondent’s brief. Therefore there cannot be a counter-affidavit without an affidavit in support of a motion. Accordingly, where an affidavit in support of a motion is gone, a counter-affidavit based on it can no longer stand. It goes with the affidavit in support.

As indicated above, the motion which was struck out by this court on 5th March, 1997 at the instance of the applicant was dated 18th October, 1996 and filed on 13th November, 1996. In addition, two motions of Mr. Anyaduba were struck out on 5th March, 1997, following an application for their withdrawal. They are CA/E/89/M1/96 dated 13th November, 1996 and CA/E/89/M4/96 dated 24th February, 1997. By this, the only counter-affidavit of the plaintiff/respondent which is current and therefore relevant is that of the 14 paragraphs dated 3rd March, 1997 and filed on the same day. Paragraph 9 of that counter-affidavit is relevant. It reads:-