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.