➥ CASE SUMMARY OF:
Lagos State Govt. & Anor. v. NDIC & Ors. (2020) – CA/L/124/2003(R)
by Branham Chima.
Lagos State Government
Nigeria Deposit Insurance Corporation (For Itself And On Behalf Of All The Creditors Of EKO AKETE 2004 Housing Project Substituted Pursuant To Order Of Court Dated 10th Of February, 2010)
- Asi Building System Ltd.
- First Bank Plc.
- Eko International Bank
- Guaranty Trust Bank
- Central Bank of Nigeria
- Polaris Bank Ltd. (Party Sought To Be Substituted For The 4th Respondent)
Court of Appeal – CA/L/124/2003(R)
➥ JUDGEMENT DELIVERED ON:
Tuesday, June 02, 2020
➥ SUBJECT MATTER
Extraneous matters in affidavit;
Substitution of Skye Bank with Polaris Bank.
➥ THIS CASE IS AUTHORITY FOR:
⦿ AFFIDAVIT PARAGRAPHS THAT OFFEND SECTION 115 EVIDENCE ACT 2011 WILL BE STRUCK OUT
The stipulations of Section 115 of the Evidence Act, 2011 is a reproduction of the provisions of Sections 86, 88 and 89 of the Evidence Act, 1990. It is rudimentary law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act may be struck out, but if it is not struck out, no weight should be attached to it: JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (supra), FMG vs. SANI (NO. 2) (1989) 4 NWLR (PT 117) 624 and EDU vs. COMM. FOR AGRIC. (2000) 12 NWLR (PT 681) 318. Indeed, it seems to be settled law that any paragraph of an affidavit which offends Section 115 of the Evidence Act ought not to be acted upon. It is liable to be discountenanced and struck out. See OSIAN vs. FLOUR MILLS (1968) 2 ALL NLR 13, EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (2001) 18 NWLR (PT 744) 165 and A-G ADAMAWA vs. A-G (FED) (2005) 18 NWLR (PT 958) 581 at 625 and 657-658. — U.A. Ogakwu, JCA.
⦿ AFFIDAVIT SHOULD CONFINE TO FACTS ONLY
Now, an affidavit meant for use in Court stands as evidence and must as near as possible conform to oral evidence that is admissible in Court. A deponent to an affidavit is therefore to confine himself to facts and circumstances. See BAMAIYI vs. THE STATE (2001) 4 SC (PT 1) 18 at 29. Often times it is only a thin line that separates facts or circumstances which are permissible for use in an affidavit, from depositions which are legal argument or prayer or conclusion, which are not permissible for use in an affidavit. Happily, the Supreme Court per Uwaifo, JSC in BAMAIYI vs. STATE (supra) at 32-33 laid down the test to be applied as follows: “The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a 15 decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and it is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witnesses but left for the Court to reach.” — U.A. Ogakwu, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A.
⦿ FOR THE APPELLANT/APPLICANT
Ms. F. O. Abiodun.
⦿ FOR THE RESPONDENT
Olamide Balogun, Esq.
Ms. S. Ovweriavwose.
J. Fabilola, Esq.
Olanrewaju Jolaoso, Esq.
➥ CASE FACT/HISTORY
The Appellants by their application filed on 14th March 2019 seek for the following orders: “1. An ORDER of this Honourable Court granting leave to substitute POLARIS BANK LIMITED for the 4th Respondent in this appeal.
- An ORDER of this Honourable Court granting the Appellants/Applicants leave to amend their Notice of Appeal, Appellant’s Brief of Argument and all other subsequent processes in this Appeal to reflect the name of POLARIS BANK LIMITED”.
The grounds upon which the application is predicated are as follows: “a. The assets and liabilities of the said 4th Respondent have been assumed in the takeover of SKYE BANK PLC by POLARIS BANK LIMITED and POLARIS BANK LIMITED should be the rightful party to take the place of the 4th Respondent in this appeal. b. The judgment or orders of this Honourable Court would not be binding or enforceable against POLARIS BANK LIMITED without an order to substitute the 4th Respondent with the latter being made.”
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: ALLOWED]
I. Whether the Applicants affidavits contain extraneous matters?
RULING: IN RESPONDENT’S FAVOUR, IN PART.
A. SOME PARAGRAPHS OF THE AFFIDAVIT CONTAINS EXTRANEOUS MATTERS
[‘Paragraphs 3b, 3g and 5 of the Further Affidavit of 11th April 2019 read as follows: “(b) Paragraphs 4 and 5 of the Counter-affidavit of the 1st Respondent are misleading and irrelevant to the determination of the Appeal. (g) The substitution of the Polaris Bank for the 4th Respondent is necessary for the effectual determination of this Interlocutory Appeal. 5. I verily believe that the Judgement or Orders of this Honourable Court will not be binding or enforceable against Polaris Bank Limited without an Order to Substitute the 4th Respondent.” In paragraphs 3d and 6 of the Further and Better Affidavit of 17th June 2019, it is deposed as follows: “(d) The substitution of Polaris Bank for the 4th Respondent is necessary for the effectual determination of this Interlocutory Appeal. 6. I verily believe that the Judgment or Orders of this Honourable Court will not be binding or enforceable against Polaris Bank Limited without an Order to substitute the 4th Respondent.”’
‘Applying this test, it is beyond confutation that the paragraphs complained about, which I have reproduced above, are prayers and legal arguments which may be pressed by counsel in Court and are not fit for a witness in oral testimony or in affidavit evidence. The conclusions therein can only be reached by the Court and not by a witness. The said paragraphs being offensive of the provisions of Section 115 of the Evidence Act are hereby struck out: OSIAN vs. FLOUR MILLS (supra), EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (supra) and A-G ADAMAWA vs. A-G (FED) (supra).’]
B. THE REMAINING COMPETENT PARAGRAPHS WILL NOW BE CONSIDERED TO HESR THE APPLICATION
[‘Howbeit, I hasten to add that the striking out of the said paragraphs will not inexorably lead to a dismissal of the application as contended by the 1st Respondent; this is because the remaining paragraphs of the affidavits of the Appellants, especially paragraph 3 (b) of the Further and Better Affidavit of 17th June 2019 and EXHIBIT TA/4 attached thereto are sufficient to sustain the application. See A-G ADAMAWA vs. A-G (FED) (supra) at 625G and 658C. I will therefore still consider the application on the merits based on the surviving paragraphs of the affidavits.’]
I. Considering the facts and circumstances of this application, whether the Appellants/Applicants have placed sufficient materials before this Court to warrant the grant of an Order substituting POLARIS BANK LIMITED for the 4th Respondent?
A. SUBSTITUTION IS GRANTED
[‘For the 1st Respondent and the party sought to be substituted for the 4th Respondent, the said Clause does not connote that the party sought to be substituted for the 4th Respondent assumed all the pending litigations involving Skye Bank PLC and that the Appellants have not shown that this present matter was one of the liabilities assumed by the party sought to be substituted for the 4th Respondent. However, it is my deferential view, that the question of part of liability not assumed by the party sought to be substituted for the 4th Respondent is entirely within the domestic domain of the party sought to be substituted for the 4th Respondent. Nothing has been produced before the Court showing the liabilities of Skye Bank PLC that were not assumed by the party sought to be substituted for the 4th Respondent pursuant to the stipulation in its objects clause. In the absence of such evidentiary proof, I am obligated to conclude that, relative to the circumstances of this matter, the party sought to be substituted for the 4th Respondent is the successor of the 4th Respondent, the precursor of Skye Bank PLC. In concatenation, the issue for determination must indubitably be resolved in favour of the Appellants.’
‘Accordingly, the application has merit and it is hereby granted. It is hereby ordered as follows: 1. The Appellants are hereby granted leave to substitute POLARIS BANK LIMITED for the 4th Respondent in this appeal. 2. The Appellants are hereby granted leave to amend their Notice of Appeal and Appellants Brief of Argument to reflect the name of POLARIS BANK LIMITED as the 4th Respondent in this appeal. 3. The Amended Notice Appeal and Amended Appellants Brief are to be filed within seven (7) days from today. 4. Upon service of the Amended Appellants Brief, the Respondents shall have seven (7) days from the date of service to make consequential amendments to their Respondents Brief to reflect the name of POLARIS BANK LIMITED as the 4th Respondent. 5. All subsequent processes to be filed in this appeal shall reflect the name of POLARIS BANK LIMITED as the 4th Respondent. 6. The appeal is fixed for definite hearing on 12th October 2020.’]
‘The Appellants are entitled the costs of this application which I assess and fix at N100,000.00 against each of the 1st Respondent and POLARIS BANK LIMITED respectively.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 115 Evidence Act 2011.
➥ REFERENCED (CASE)
⦿ PARTIES SHOULD HAVE FREE HAND TO CHANGE PARTIES IN LITIGATION PROCESS
Tobi, JSC stated as follows in EJEZIE vs. ANUWU (2008) 12 NWLR (PT 1101) 446 at 485: “Generally an innocuous one granted as a matter of routine. This is because of the state of our adjectival law that parties should have free hand to change persons in the litigation process. And so applications for substitution do not generally give any problem …”
⦿ DEFINITION OF SUBSTITUTION
In PERETU vs. GARIGA (2012) LPELR (15534) (SC) 1 at 25, Ngwuta, JSC stated: “Substitute, a noun, means ‘a person or thing that you use or have instead of the one you normally use or have’ … the word ‘substitute’ as … ‘one who stands in another’s place.’ ‘Substitution … as ‘A designation of a person or thing to take the place of another person or thing; the process by which one person or thing takes the place of another person or thing.”
⦿ PRINCIPLES ON SUBSTITUTION OF PARTIES IN LITIGATION
Muhammad, JSC (now CJN) stated as follows in IN RE: APEH (2017) LPELR (42035) (SC) 1 at 35 -36: “I think it is apt for me at this stage, to remind my noble Lords, in a concise manner the general principles of the law relating to substitution. When one puts something by way of replacement or change of another, whether a person or a thing, that would amount to substitution. The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part any more in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased … Bankruptcy of one of the parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances.”
➥ REFERENCED (OTHERS)