➥ CASE SUMMARY OF:
Ilorin East Local Government v. Alh. Woli Alasinrin & Anor. (2012) – CA
by PipAr Chima
Court of Appeal – CA/IL/38/2011
➥ JUDGEMENT DELIVERED ON:
Monday, the 20th day of February, 2012
➥ AREA(S) OF LAW
Certification of exhibits;
➥ NOTABLE DICTA
⦿ PURPOSE OF UNDEFENDED LIST PROCEDURE
Of course, it is well known that proceedings taken under the undefended List procedure are Sui generis, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and counsel at the hearing. – I.G. Mbaba, JCA.
⦿ DISCRETION OF TRIAL JUDGE TO PLACE SUIT ON UNDEFENDED LIST
The discretion to place a suit on the Undefended List resides with the trial judge, once he is satisfied, based on the depositions of the plaintiff, that there are good grounds to belief that the defendant has no defence to the action. And even when the defendant files a notice of intention to defend and an affidavit thereto, disclosing what he thinks are grounds to defend the action, as per Order 22 Rule 3, the discretion still remains with the trial court to satisfy itself that the affidavit of the defendant discloses “a defence on the merit.” – I.G. Mbaba, JCA.
⦿ CERTIFICATION OF DOCUMENT BY ADVERSE PARTY, UNREALISTIC
I think, the law would be very naive and unserious to expect a vital document gotten, anyhow or by unconventional method from the covers/custody of an adverse party, to be certified by the same adverse party, who is ready to deny the document, before reliance can be placed on it, where the court is satisfied that the document is relevant and credible. – I.G. Mbaba, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, JCA.
⦿ FOR THE APPELLANT
O.Y Gobir Esq.
⦿ FOR THE RESPONDENT
Tunde Olomu Esq.
➥ CASE HISTORY
This is an appeal against the judgment of the S. D. Kawu (Ag. CJ) of the Kwara State High Court in Suit No. KWS/277/2010, delivered on 1st February, 2011, wherein the learned trial judge gave judgment for the Claimants in a suit earlier placed on the undefended list. The claimants, (now Respondents), had filed the suit against the Appellant (who was defendant at the court below), seeking the payment of N11,492,151.00, being balance of a contract sum and 10% interest, thereon, until the judgment sum was finally liquidated.
The Appellant’s Notice of Intention to defend and affidavit thereto did not save the situation, because, after considering the affidavit evidence and the Exhibit C, (a document from the Appellant) the Court concluded that there was no defence to the claim, and gave judgment to the Respondent.
Dissatisfied, Appellant brought this appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, with N50,000 cost]
I. Was the trial judge right in hearing the case under the undefended List, and relying on the Exhibit ‘C’ to give judgment to the Respondent, considering the issue of the non certification of document?
RULING: IN RESPONDENT’S FAVOUR.
A. Appellant should therefore not quarrel (with or be surprised at Exhibit ‘C’) as it appears the Respondents had simply taken up the challenge in paragraph 4 (o) of the Appellant’s affidavit to produce the proof of their performance of the contracts, And they (Respondents) did it perfectly by producing photo copies of the minutes and endorsements of the officers of the Appellant on their (Respondents) claim. Incidentally, the Appellant have not denied any of the endorsements, apart from the general claim that Exhibit C did not emanate from it and did not form part of the 2nd Respondents file with the Appellant. That being the position of the Appellant on Exhibit ‘C’, Appellant should therefore not bother itself that the document was not certified! This is because, the entire argument on the non-certification of Exhibit ‘C’ can only make sense upon admission that the same formed part of public/official recordings from the covers of the Appellant!
B. I think the Appellant was simply overwhelmed and outwitted, when the Respondents came up with the Exhibit C, to affirm their stand that the Appellant had no defence to the claim Thus, while trying to disown the document (Exhibit C), the Appellant also tried to rely on it and use same. It alleged that the claimants’ file with the defendant had been missing from the registry, since June 2010 and all effort to trace it proved abortive; that the 1st claimant was aware of the missing file! All that appeared to be an effort to criminalize the claimants (who emerged with the contents of the alleged missing file), and to set the stage to discount it from applying to establish their claim, on the ground of inadmissibility, for not being certified as public document. Appellant cannot be allowed to approbate and reprobate at the same time disowning the Exhibit C and, at the same time, admitting it and pleading it should be certified!
C. I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the court and to be used, once the court is satisfied that it is credible. Being already an evidence before the court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the court, unlike pleading which must be converted to evidence at the trial at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms). It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the court can attach probative value to it.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ MERE GENERAL TRAVERSE IN AFFIDAVIT IS NOT ENOUGH
ARUWA v. ABDULKADIR (2002) FWLR 677 ratio 3, it was held, concerning the defendant’s affidavit, thus: “… The defendants affidavit must condescend upon particulars and should as far as possible specifically deal with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit defence should also state whether the defence relates to the whole or part of the claim, and in the latter case, it should specify that part of the claim. A mere general statement or denial, that the defendant is not indebted to the plaintiff is not enough to constitute a defence, unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit.”
⦿ DISTINCTION IN AVERMENTS IN AFFIDAVIT vs THAT IN PLEADINGS
MAGNUSSON VS. KOIKI (1993) 12 SCNJ 114 held 5, the Supreme Court said: “Averments of facts on pleadings must be distinguished from facts deposed to in affidavit in support of application before a court. Whereas the former, unless admitted, constitutes no evidence, the latter are by law, evidence upon which a Court of Law may, in appropriate cases, act.”
⦿ ANY DEPOSITION IN AFFIDAVIT UNCHALLENGED IS DEEMED ADMITTED
IN H.S. ENGINEERING LTD VS. AS. YAKUBU LTD (2009) 175 LRCN 134, ratio 2, it was held – ‘It is now settled law that an affidavit evidence constitutes evidence and any deposition therein not challenged is deemed admitted.’ See also the unreported decision of this court in CA/IL/83/2010 (Adebiyi v. Umar), delivered on 31/1/2012, page 11.
➥ REFERENCED (OTHERS)