➥ CASE SUMMARY OF:
B.V. Magnusson v. K. Koiki & Ors. (1993) – SC
by B.C. “PipAr” Chima
Supreme Court – SC.119/1991
➥ JUDGEMENT DELIVERED ON:
Friday, the 17th day of December, 1993
➥ AREA(S) OF LAW
Averments in affidavit;
Abandonment of prayer.
➥ NOTABLE DICTA
⦿ PARAGRAPHS OF PLEADINGS NOT SUPPORTED BY EVIDENCE WILL BE ABANDONED
It is settled law that a party will only be permitted to call evidence to support his pleadings and evidence which is contrary to his pleadings must be ignored or expunged when considering the case (see for example The National Investment & Properties Co. Ltd. v. The Thompson Organisation Ltd & Ors. (1969) NMLR 99. Where also a party’s pleadings is not supported by evidence, those paragraphs of the pleadings will certainly be deemed to have been abandoned (see Alhaji Bala & Ors v. Mrs. Bankole (1986) 3 NWLR (Pt.27) 141). – Kutigi JSC.
⦿ FACTS NECESSARY FOR THE GRANTING PRAYERS SHOULD BE STATED IN AFFIDAVIT
An application or motion on the other hand is usually supported by an affidavit or affidavits with or without exhibits, depending on the nature of the application. It is necessary for an applicant to state fully in an affidavit or affidavit, the facts he intends to rely upon in seeking the prayers or order contained in the motion paper because except with the leave of court, he will not be heard in respect of facts not contained in the affidavit. – Kutigi JSC.
⦿ ORAL EVIDENCE WILL BE ALLOWED FOR IRRECONCILABLE AFFIDAVITS
It is in exceptional cases for example where there are irreconcilable affidavits from both sides, that oral evidence will be allowed to be led in support of interlocutory application (see Falobi v. Falobi (1976) 9-10 S.C. 15, Eboh & Ors. v. Oki & Ors. (1974) 1 SC. 179), Uku & Ors. v. Okumagba & Ors. (1974) 3 SC. 35) unlike pleadings which will have to be supported by evidence at the trial as stated earlier. – Kutigi JSC.
⦿ AVERMENTS IN PLEADINGS NOT ADMITTED MUST BE PROVED
An averment in pleadings is not and has never been considered as legal evidence unless the same has been admitted by the other side to the litigation. Accordingly an averment which is not admitted must be proved or established by evidence. An averment of a material fact in pleadings which is denied but is not established by evidence is worthless and must be discountenanced. In a sense, such an averment may in law be rightly regarded as abandoned. (See generally on the above, Akinfosile v. Ijose (1960) 5 F.S.C. 192; (1960) SCNLR 447; Muraina Akanmu v. Adigun (1993) 7 NWLR (Pt.304) 218 at 231; Obmiami Brick and Stone Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260 at 293 and Anyah v. A.N.N Ltd. (1992) 6 NWLR (Pt.247) 319 at 331.) – Iguh, JSC
⦿ AVERMENTS IN PLEADINGS VERSUS AVERMENTS IN AFFIDAVIT, ADDRESS OF COUNSEL NOT EVIDENCE
Averments of facts in pleadings must however be distinguished from facts deposed to in an affidavit in support of an application before a court. Whereas the former, unless admitted, constitute no evidence, the latter are by law evidence upon which a court of law may in appropriate cases act. The Court of Appeal, if I may say with the utmost respect, appeared to be under the erroneous impression that an averment in pleadings is synonymous with a deposition in an affidavit in support of an application. This is clearly not the case. So too, an address of Counsel in moving an application is not the evidence in support of such an application. The evidence is the deposition contained in the affidavit in support thereof. — Iguh JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Chief G. N. Uwechue, SAN.
⦿ FOR THE RESPONDENT
Mr. Eme O. Mbanugo.
➥ CASE HISTORY
The plaintiffs sued the defendant in the Lagos High Court and obtained judgment against him in the following terms- “Judgment is hereby entered for the plaintiffs against the defendant for the special damages of $894,390 or its Naira equivalent with interest at 15% per annum from 1st day of January, 1982 to 31st day of July, 1987 and at 20% per annum from 1st August 1987 until today and N1,000,000 (One million Naira) being general damages.”
The Defendant appealed the judgement to the Court of Appeal, and further sought a stay of execution of the said judgement from the High Court. The Application for stay was dismissed. The Defendant appealed to the Court of Appeal, which granted the stay but placed conditions to be fulfilled.
The Defendant, now Appellant, who is aggrieved by the conditions attached to the grant of stay of execution and failure by the Court of Appeal to consider prayer (2) of the motion has now appealed to this Court.
➥ ISSUE(S) & RESOLUTION
[APPEAL: IN PART, ALLOWED]
I. Whether the Court of Appeal was right in deeming as abandoned the arm of appellant’s application praying for variation of the order of the High Court.
RULING: in part, IN APPELLANT’S FAVOUR.
A. Apparently in his oral submissions in court Counsel did not say anything in respect of prayer (2) for variation. But his silence simpliciter cannot in my view be equated with abandonment of the prayer. There was no express withdrawal of the prayer. There was a 24 – paragraph affidavit in support of the two-legged application. The Court of Appeal was therefore clearly wrong to have deemed prayer (2) of the application as abandoned and dead. The court was bound to have considered the prayer on the materiality and relevance of the affidavit in relation to the prayer and rule accordingly. It is not sufficient as submitted by Mr. Mbanugo that the affidavit in support did not address the issue of variation. If it did not, the court should have so found and should have dismissed the application. It did not and the prayer was never considered on its merit. Affidavit evidence upon which application or motions are largely decided are not the same thing as pleadings in a civil suit which are written statements (and not evidence) generally of facts relied upon by a party to establish his case or his answer to his opponent’s case.
B. It appears to me that since the parties do not even agree on the actual amount of damages (N2.4m or N28m), the variation order prayed for by the appellant could not have been made possible since it would have meant accepting without any justification the appellant’s figure of N2.4m alone. That would be unacceptable. I am therefore firmly of the view that although the Court of Appeal was wrong to have deemed prayer (2) abandoned and dead, the appellant suffered no injustice as a result of the ruling. I feel it will be in the interest of justice and the parties too to maintain the status quo until after the appeal already lodged in the Court of Appeal is determined and the actual amount of damages or liability arrived at.
C. It is not in dispute that the appellant at no time expressly withdrew his application for a variation of the order in issue. The question for determination is whether the appellant’s learned Counsel may be deemed to have abandoned his second prayer by the implication of law for the sale reason that he inadvertently failed to address the court on the issue. There is no doubt that the learned Counsel for the appellant did in fact move his application before the Court of Appeal of which the prayer deemed abandoned was a part.
D. In the instant case, the applicant filed a 24 paragraph affidavit in support of his prayers. In my view, the appellant’s prayers contained in his application were bound to be considered severally by the court below against the background of the facts deposed to in the affidavit in support thereof and none of the said prayers ought to have been treated as abandoned. Accordingly I find myself unable to agree with the decision of the Court of Appeal that the second arm of the appellant’s prayers which was properly supported by affidavit evidence must be deemed abandoned simply because Counsel inadvertently failed to address the court thereupon.
II. Whether the Court of Appeal was right in leaving the determination of the proper rate of exchange for the conversion of the part of the judgment debt in foreign currency to Naira to First City Merchant Bank Ltd without first determining through a proper judicial process the relevant date for the conversion of the same, which was left open by the trial judge & Whether reference of the final determination of the nature of the interest awarded (whether simple or compound) to First City Merchant Bank Limited did not occasion as serious miscarriage of justice.
RULING: IN APPELLANT’S FAVOUR.
A. This issue is subject matter of an appeal before Court of Appeal yet to be decided. Deciding this issue on this Application now will prejudice the aforesaid Appeal.
B. It is clear from the grounds of appeal set out above that there is an appeal not only in respect of award of the special and general damages against the defendant/appellant, there is also an appeal about the date of conversion of the special damages which is in foreign currency and the naira equivalent of the same foreign currency. Issue 2 & 3 would therefore appear to have been covered by the grounds of appeal above. The appeal is yet to be decided by the Court of Appeal. And in so far the Court of Appeal purported to have mandated the First City Merchant Bank to delve into these issues before the appeal is heard as per paras, (a), (b), (c), (d) & (e) of the conditions for the stay of execution, it was wrong of it to have done so and accordingly the offending paragraphs will have to be deleted or struck-out. The 2nd and 3rd issues are therefore resolved in favour of the appellant.
For the avoidance of doubt, the order of the Court of Appeal granting stay of execution shall now read as follows- ‘The application for stay of execution is hereby granted subject to the fulfillment of the following collateral conditions: (a) The sum of N5,863,960.00 and accrued interest thereon preserved with the first Bank of Nigeria Limited at Adeyemo Alakija Street, Victoria Island, Lagos, be further preserved with the said First Bank of Nigeria Limited in a fixed deposit account yielding interest pending the determination of the appeal. (b) The general damages of N1,000,000 (One million naira) be paid into the First Bank of Nigeria Limited at Adeyemo Alakija Street, Victoria Island, Lagos in a fixed deposit account yielding interest within six (6) weeks from the date of this judgment pending the determination of the appeal. The appellant is awarded costs assessed at N1,000.00 (One Thousand Naira).
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)