Nigeria Police Force & Ors. V. Mrs. Ijeoma Onu & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

The applicants by a Motion on Notice dated and filed same date 19th day of May, 2005 sought for the following orders:-

1. AN ORDER granting the appellants/applicants enlargement of time within which to seek leave to appeal against the ruling of the Federal High Court in suit No. FHC/L/CS/238/04 dated 13th May, 2004.
2. AN ORDER granting the appellants/applicants leave to appeal Against the ruling of the Federal High Court in suit No. FHC/L/CS/238/04.
3. AN ORDER enlarging the time within which the appellant may file appeal against the ruling of the Federal High Court dated 13th May, 2004 in suit No. FHC/L/CS/238/04.
4. AN ORDER staying further proceedings in suit No. FHC/L/CS/238/04 pending the hearing and determination of the appellants’/applicants’ application for enlargement of time to appeal to this Honourable Court against the ruling of the Federal High Court dated 13th May, 2004.

The application is supported by 18 paragraph affidavit and four paragraph further affidavit. Exhibit ‘A’-‘F’ are attached to the supporting affidavit. 1st and 2nd respondents did not file counter-affidavit. Likewise 3rd respondent.

I wish to note that the initial application was taken on 18/09/06 but counsel were recalled to further address the court on the competency of the affidavit in support of the application. The further address was taken on 12/02/07. It is appropriate to resolve this aspect first before delving into the merit of the application. Learned counsel for the applicant Mr. Amaechina submitted that the Affidavits filed in support of the application are competent. There are two affidavits one was filed on 19/5/2005 while the further affidavit was filed on 22/02/06. It was his contention that the main affidavit was deposed to by litigation officer and by paragraph 2 he made report based on the information he received. Paragraph 4 according to him disclosed the Police Officer he received the information from one Francis Ehilere. Learned Counsel conceded that paragraph 5 did not state the identity of Chike Okwesa. He said paragraph 6, 8, and 9 relates to paragraph 5. Counsel referred to Exhibit ‘B’ the Ruling of the lower court and contented that the said Ruling showed Chike Okwesa was counsel in the matter at the lower court representing 7th Respondent Mrs. Adaeze Nwuba. Chike Okwesa is also representing 3rd Respondent in this application. Counsel contended that the affidavit substantially satisfies the requirement of the law. He relied on the cases of Atanyi Farms Ltd v. N A C B Ltd 2003 4 N.W.L.R (Pt. 810) 427 at 454 – 455 and Lone Star Drilling Limited v Triveni Engineering and Industry (1999) 1 NWLR (Pt. 588) 622 at 628 – 629 to buttress his submission. He urged the court to accept the affidavit as it is.

On the part of the 1st and 2nd respondents Mr. Ezeokeke submitted that the affidavit in support of the motion dated 19/05/05 is grossly incompetent. Counsel submitted that the averments in the affidavit violates the Provisions of Evidence Act with respect to hearsay. He referred to sections 86, 88 and 89 of the Evidence Act 1990. It is trite that every affidavit should contain statement of facts and circumstances through which a witness deposes either of his own personal knowledge or from information which he believed to be true. Counsel referred to paragraphs 7, 9, 11, 12, 13 and 15 of the affidavit in support and contended that the deponent deposed to facts which are clearly not within his personal knowledge and he did not state his source of information. According to him these averments violates S.86 Evidence Act being hearsay which cannot be cured. He urged the court to expunge the paragraphs. Counsel further submitted that when a person deposes to belief he should do so in accordance with S.88 And 89 of the Evidence Act. He relied on the case of Noverties Farmer Services Incorporated, & Anor v Swissco Nigeria Limited & Anor 2004 Vol.2 NWLR (Pt. 856) 28 at 35 to buttress his submission. Counsel also referred to paragraphs 5, 6, 8 and 14 of the affidavit in support and contended that deponent only deposed to facts but did not show any belief in those facts. He referred to S.88 and 89 of the Evidence Act and contended that it is an incurable defect. Paragraph 4 was not left out. He said the deponent made attempt to state informant but did not give reasonable particulars of informant as to time and place. In the light of the above counsel urged the court not only to discountenance the offending paragraphs but to strike out the whole affidavit. He relied on F.M.G v Sani (No.2) 1989 Volume 4 NWLR (Pt. 117) 624 ratio 16 and Momodu vs Momodu 1986 volume 5 NWLR (Pt.46) 649 to buttress his submission. It was his contention that when the offending paragraphs i.e, 4, 5, 6, 7, 8, 9, 11, 12,13, 14 and 15 are struck out or declared worthless nothing will remain to sustain the affidavit in support of the application. He said invariably the affidavit will remain hollow and empty deserving nothing other than complete dismissal. Counsel urged the court to dismiss the motion on notice dated 19/5/05 with substantial costs or in the alternative it be struck out.

Chike Okwesa counsel to the 3rd Respondent associated himself with the submission of Mr. Amaechina applicants counsel. Counsel urged the court to take note of the fact that this is an affidavit in support of an application for extension of time within which to appeal against an order that was made without service of the motion paper. That fact have not been denied or controverted by 1st and 2nd Respondents. He said the fact of no service was not denied which is a clear infraction of S.36 of the Constitution of the Federal Republic of Nigeria i.e. the right to fair hearing, before any order is made. Learned counsel contended that the affidavit may be found to be defective but S.84 of the Evidence Act enjoins the Court to permit the use of the affidavit in the interest of Justice. He relied on the case of Falae v. Obasanjo No.1 (1999) 4 N.W.L.R (Pt. 599 435 at 440 to buttress his submission. He said even though the affidavit is defective the important thing is to do substantial justice. He referred to paragraph 11 of the affidavit. Counsel urged the court to grant the application.

For ease of reference and emphasis I will reproduce the various paragraphs of the affidavit complained of by the 1st and 2nd respondents. Paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 read as follows:-

“4. The Police Officer that led investigation of the Criminal complaint lodged by the 3rd respondent in this appeal against the 1st and 2nd respondents herein Mr. Francis Ehilere informed me and I verily believe him as follows:-

(a) In the course of their investigation they discovered that the 2nd respondent herein was or had been operating under a false name which is Mr. Ikechukwu Onovo Igwe and they suspected that he has criminal motives for so doing.

(b) The said 2nd respondent herein has obtained for himself a Nigerian passport issued to him under the false name of Ikechukwu Onovo Igwe.

(c) Upon becoming aware of this fact, the 3rd respondent herein through her counsel filed an application at the trial court seeking to strike out the name of the 2nd respondent herein from the proceeding, among others.

(d) In reaction to said application, the 2nd respondent herein, who had originally instituted this action in the name of Eric Onu hurriedly filed an application in the proceedings at the trial court on 12th May, 2004 to amend his name by adding the words “Also known as referred to as Mr. Ikechukwu Onovo Igwe”.

(e) The said application was not served on the Appellants/applicants herein but was heard and granted by the learned trial High Court despite the opposition of same by counsel to the 3rd respondent herein on 13th May, 2004.

(f) That after they discovered in the course of investigation that 2nd respondent had two International passports under different names, they planned to prosecute him under the appropriate law and were making preparation for that when the 2nd respondent made the said application which was granted without notice to us.