By Godfree Matthew Esq.
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ABSTRACT
It is a commonplace in courts today to notice counsel and litigants respond to further affidavit by filing a process titled as “counter to further and better affidavit”. Also counter are sometime designed as “affidavit in support of counter affidavit”. The use of these processes in interlocutory applications and any legal processes led to abuse of courts processes. This in turn stultifies the course of justice. It is quite unfortunate that these practices are not only carried out by the young and middle lawyers, but even more senior lawyers at the bar are culpable of such acts in some jurisdiction. Thus, this work seeks to establish that there are only three stages involved in the use of contentious affidavit in Nigeria, which are affidavit in support of motion, counter affidavit and further affidavit. The work also seeks to establish that in most of the rules of courts in Nigeria no legal process is known as “counter to further affidavit” or “affidavit in support of counter affidavit”. Based on these developments, it is the view of this writer that continuous legal education should be reinvigorated to address some of these basic concepts that are abused due to ignorance and mischief of lawyers. The work also recommends the need for more practical approach to learning and more emphasis for moot court in law school and universities. References to statutes, case laws, rules of courts and journals are resourceful in the course of this work.
INTRODUCTION
This work is classified into 4 parts. The first part deals with the examination of the statutory basis of contentious affidavit in Nigeria’s adjectival law. In the second part, the writer deals with the examination of contentious affidavits within the provisions of the laws and rules governing the federal courts like the Federal High Court, National Industrial Court and the High Court of the FCT Abuja. In the same sequence the third part of this work discusses the place of contentious affidavits within the ambits of the High Court Rules of some selected states. These states will be selected from the six geo-political zones of the federation. The third arm of this work examines the justification why the courts permits and limits the exchange of contentious applications into three. The fourth part is the concluding part of this work. Here the writer concludes that there is no legal process known in law as “Counter to Further Affidavit”, otherwise there will be no end to litigation. The part also suggests what should be done to bolster the understanding of lawyers and upcoming lawyers in legal practice. It is the aspiration of this writer that this work will be beneficial to learning.
DEFINITION OF TERMS
Scope
This refers to the extent and latitude of a particular thing. It means the area of coverage of a subject matter.
Contentious Affidavits
This refers to affidavits that are used in cases that involve disagreement or litigation. It is mostly used in interlocutory applications and in matters requesting the use of originating summons, undefended list procedures and petitions. Also, contentious affidavits are used where the parties engaged in allegations, rebuttals and surrebuttals.
Interlocutory Applications
This refers to the applications that are made to court while an action is still pending in the court. It is used at every stage of proceedings. It is from this proceeding that processes like motion ex parte, motion on notice and preliminary objections have their legal roots.
Adjectival Laws
These refer to the laws that regulate the ways and manners cases are done. It is concerned with the compliance with procedures involved in the prosecution of a case. It deals with issues like forms, structures, condition precedent, etc. It is from these genres of the law that we have the laws establishing courts and rules of procedure governing proceeding.
STATUTORY BASIS OF CONTENTIOUS AFFIDAVITS
The statutory basis of affidavit abounds in our federal legislations. The federal legislations that govern affidavit are the Evidence Act and the Oaths Act. The rules governing affidavit are provided in the provisions of sections 107 to 120 of the Evidence Act. Under these provisions, the law permits the proof of facts through affidavits. The procedures regarding the forms and contents of affidavits are also regulated by the Evidence Act. These sections equally provide for how affidavit in Jurat are regulated and administered.
While the provisions of Evidence Act earlier cited did not describe what the classes of affidavits required in litigation, but in practice affidavit includes, affidavit in support of motion, counter affidavit plus further and better affidavit. This fact is reflected in the provisions of the various rules of court, which will be examined in subsequent part of this work. These rules of court did not include ‘counter to further affidavit and neither does the court includes ‘affidavit in support of counter affidavit’ as classes of affidavit. Therefore, going by this position of the law, it is crystal clear that the Evidence Act did not contemplate any legal process such as “counter to further and better affidavit” nor “affidavit in support of counter affidavit”. So it is the position of this writer that where a law did not provide for a particular process, no coinage or mastery of English language can create it. Thus, the clause “Counter to Further and Better Affidavit” is not a legal process recognized by the Evidence Act.
Moreover, the scope of evidence under Nigerian law is purely a prerogative of the Federal legislature. Thus, state governments cannot legislate on matters already covered by the Evidence Act. Thus, this precludes the expectation that state legislators can enact laws to govern matters relating to evidence. This position is supported in the case of Benjamin V Kalio [1]where the court held that Evidence is on item 23 on the Exclusive List in Part 1 in the Second Schedule to the Constitution. This further means that since affidavit is evidence, no State House of Assembly can legislate on affidavits.
The Oaths Act deals with deposition in general. It applies to both contentious and non contentious affidavits, but, mostly with non contentious depositions. It is important to note that failure to comply with the provisions of section 13 of the Oath Act will render an affidavit incompetent.[2] Also, where an affidavit both contentious and non contentious is not sworn before a duly authorized persons, it will be irrelevant in the eyes of the law.
Again, under the Administration of Criminal Justice Act, 2015, contentious issue like bail is spelt out in section 156 to 175. The law here spells out certain conditions for the grants of bail, which are either conventional conditions or exceptional circumstances. While the provisions in ACJA, 2015 did not mention affidavits, counter affidavits and further affidavits as a processes in application for bail, they make references to words like information by Oaths section 174 is a clear indication that affidavit is required.
Again, since the conditions for grant of bail are matters of facts, the use of affidavits and counter affidavit is necessary. That is why the Evidence Act provides that all facts shall be proved by affidavit evidence.[3] Consequently, in practice in applications for bail and other processes requiring the use of affidavit, one notices the exchanges of affidavits in the form counter affidavit and further affidavit.
EXAMINATION OF AFFIDAVIT EVIDENCE IN THE FEDERAL COURTS
Since affidavit is evidence, which is a matter that is mostly adjudicated upon at the trial court, federal courts like Supreme Courts and the Court of Appeal have less rules governing affidavit evidence in their court rules. Thus, this work will not rely on federal courts like Supreme Court and the Court of Appeal. This work will only rely on the Rules of the Federal High Court, National Industrial Courts and High Courts of the Federal Capital Territory Abuja.
FEDERAL HIGH COURT (CIVIL PROCEEDURE) RULES, 2019
The rules governing the use of contentious affidavit evidence are provided for in Orders 26 and 27 of the Federal High Court (Civil Procedure) rules, 2019. With respect to filling and service of motions Order 26 Rule (3) provides that a party moving a motion must accompany such motions with affidavit stating the facts he seeks to rely upon. Also, that same affidavit must be served on the other party.
On the other hand, Order 26 Rule (4) provides that a party on whom a motion is served and intends to reply, must file a counter-affidavit along with a written address within 7 days of service.
Additionally, the Rules of the Federal High Court provide for further affidavit in Order 26 (24) which provides that upon fulfilling certain conditions, the court may allow any additional affidavit to be used and served on the other opposing party. This rule clearly provides for additional or further affidavit, but it did not provide for any process known as “counter to further affidavit” or “Affidavit in support of Counter- affidavit.”
Flowing from, the above provisions of the rules of the court there is nowhere the rules provide for counter to further affidavit or affidavit in support of counter-affidavit
FEDERAL CAPITAL TERRITORY, ABUJA HIGH COURT (CIVIL PROCEEDURE RULES), 2018
This law permits for the use of affidavit in contentious proceedings, especially applications in three stages. The first is the use of the affidavit in support of motion. The second is the counter-affidavit in opposition to motion on notice. The third process is known as the reply affidavit.[4] In all these stages involved in the exchange of the use of affidavits nowhere the rules provide for counter to further affidavit and affidavit in support of counter affidavit.
NATIONAL INDUSTRIAL COURT RULES, 2017
The National Industrial Courts deals with the contentious affidavits in Order 17 of the National Industrial Court Rules (2017). Rule 5 of Order 17 provides for the use of affidavit in motions by the applicants. The respondent is also permitted to file a counter-affidavit and serve it on the Applicants as required by the law.[5] The Applicants (who is now a respondent) can also file a further and better affidavit to deal with new issues arising from the Respondent’s counter-affidavit.[6]
Again, from the above expositions of the rules of National Industrial Court, no legal process is captioned by the rules of court as ‘Counter to Further and Better Affidavit” or “Affidavit in support of Counter-Affidavit”. In the same vein, this position enjoys the backing of learned authors in their works. Prof Ernest Ojukwu, SAN, also refers to the three stages of filling contentious affidavit as “affidavit”, Counter-affidavit” and “further and better affidavit.”[7] In his authoritative legal book on civil Procedure, Fidelis Nwadialo also outlined stages of Affidavit into “affidavit”, “counter-affidavit” and “further and better affidavit.”[8] None of these legal scholars allude to any term known as “counter to better and further affidavit” nor “affidavit in support of counter-affidavit”.
Additionally, the Fundamental Rights (Enforcement Procedure) Rules, 2009 lend credence to the existence of tripartite affidavit in litigation. This is seen in the provision of Order II which deals with the mode of commencement of action. It provides for the use of affidavit in support of application and the need for counter affidavit in response to the application, where necessary. After that a further affidavit may be filed where necessary to rebut new issues raised in the counter affidavit. The same process is recognised when a statement or application is to be amended.[9]
THE PLACE OF CONTENTIOUS AFFIDAVIT WITHIN THE SCOPE OF HIGH COURT RULES IN NIGERIA
In this part of the work, the writer will refer to certain High Court (Civil Procedure) Rules of the various states of the federation, including that of the Federal Capital Territory. Thus certain High court rules of the federation of Nigeria will be examined in connection to contentious affidavit in legal proceedings.
The first high court rules to observe here is the Lagos State High Court (Civil Procedure) Rules, 2019. The provisions of this rule expatiate on the position of the use of contentious affidavit in litigation. The Lagos State High Court Rules is the mother and the most modern of all High Court Civil Procedure Rules in Nigeria. This is because of its innovative trends towards progressive activism in the development of the law.
Order 43 that regulates the use of motion and other applications categorised the use of contentious affidavit in three stages as ‘Affidavit in Support of Motion’, ‘Counter-Affidavit in opposition of Motion on Notice’ and ‘Further Affidavit’.[10] As current as the Lagos State High Court (Civil Procedure) Rules, 2019 is, it does not capture any process as ‘Counter to Further and Better Affidavit’ or ‘Affidavit in Support of Counter-Affidavit.’
Also, in Oyo state there is no judicial process known in its High Court Rules as ‘Counter to Further and Better Affidavit’ or ‘Affidavit in Support of Counter-Affidavit’. This position is supported by the provision of Order 39(1) (2) (3) (4) and (5) of the High Court (Civil Procedure) Rules of Oyo State, 2010) which also outlined the procedures for exchange of affidavit in interlocutory applications.
Similarly, the Ondo State High Court (Civil Procedure) Rules, 2010 provides for the ways and manners affidavit can be exchanged in interlocutory applications. It squarely provides for Affidavit, Counter affidavit and further affidavit. [11]
Furthermore, under the Plateau State High Court (Civil Procedure) Rules, 1987 provides for the use of affidavits in the interlocutory applications. The Rules provide for the use of affidavit in support of motion which must be served on the respondent. After that the respondent is expected to file and serve the applicant a Counter-Affidavit when he intends to oppose same. The Applicant is entitled to reply to the Counter Affidavit by filling a ‘Further –Affidavit’. Under the Plateau state there is no further exchange of affidavit after this procedure. The only thing a Respondent can do is to reply on point of law and not to file a ‘Counter to further affidavit.’
In similar sequence, the provision of the Nasarawa State High Court (Civil Procedure) Rules, 2010, did not provide for any legal process known as ‘Counter to Further Affidavit.’ On the rules governing motions and other applications, the rules specified the use of Affidavit in support of motion, Counter Affidavit and Further Affidavit. [12] Under this rule, there is no process known as Counter to further Affidavit or Affidavit in support of Counter affidavit. The only option opened to a Respondent when a further affidavit is filed is to reply on points of law.
Under the Kaduna High Court (Civil Procedure Rules), 2007, the law is certain on the absence of a legal process known as “affidavit in support of counter- affidavit’ or ‘Counter to Further Affidavit’. The law only provides for the use of affidavit, counter affidavit and further affidavits when filling interlocutory applications. The same position under Kaduna law is maintained by the Jigawa State High Court (Civil Procedure) Rules.[13] Thus, in Kaduna there is no any legal process couched as ‘counter to further and better affidavit’.
Again, the Borno High Court Civil Procedure Rules under Order 33(1), (2) (3) and (4) provides for the use of affidavit in interlocutory applications. It specifically mentioned affidavit, counter affidavit and further affidavit. It did not mention any process known as Counter to Further and Better Affidavit. Other jurisdiction within the North East of Nigeria equally provides for the same procedure.[14]
Furthermore, Rivers state does not in any way contemplate the usage of a process known as ‘Counter to further Affidavit’ or ‘affidavit in support of counter affidavit’. Under the River state High Court (Civil Procedure) Rules, 2010, Order 39 provides for the use of affidavit in support of motion, Counter affidavit in opposition of motion and further affidavit/Reply. There is no any process contemplated as ‘Counter to further affidavit’ or ‘affidavit in support of counter affidavit’ as canvassed by some legal practitioners.
In the same vein, the Edo State High Court Civil Procedure Rules, 2012, does not recognize the use of ‘Counter to Further affidavit’ and ‘Affidavit in Support of Counter affidavit. The rules only provides for Affidavit in support of Motion, Counter affidavit in support of motion and further affidavit.[15] This same position is what is obtained in the High Courts of the Delta and Bayelsa State.[16]
Moreover, the Enugu State High Court (Civil Procedure) Rules recognized the tripartite use of Affidavit, Counter affidavit and further affidavit. This is evidence in the provisions of Order 39 Rule 1 (1) to (4) which explicitly mentioned affidavit in support of motion, counter affidavit and further affidavit. Similar provision is reflected in the High Court (Civil Procedure) Rules of Abia State, 2009 under Order 5 Rule (1) (1) to (5). The same positions apply in Imo and Ebonyi States.[17]
Therefore, going by the above comparative appraisal of the High Courts’ Rules in Nigeria, it is glaring that in interlocutory proceedings, the only tripartite transaction of affidavit are the affidavit in support of motion, counter affidavit in opposition to motion on notice and then the further affidavit. Apart from these procedures, no high court in its rules provides for ‘affidavits in support of counter-affidavit’ and ‘counter to further affidavit’. Thus, based on the above authoritative exposition, it will be true to say that, north, south, west and east of Nigeria, there is no process known as ‘Counter to further and affidavit’ or ‘affidavit in support of counter affidavit.’
THE REASONS WHY THE LAW PERMITS AND LIMITS THE EXCHANGE OF CONTENTIOUS APPLICATION TO AFFIDAVIT, COUNTER AFFIDAVIT AND FURTHER AFFIDAVIT
From the expositions of the various genres of our adjectival laws, regarding the exchange of affidavit in contentious application, there is nothing like ‘counter to further affidavit’ and ‘the affidavit in support of counter affidavit’. The only processes involved in the exchanged of contentious affidavits are affidavit in support of motion on notice, the counter affidavit in opposition to the motion on notice and then the further affidavit. Where a party has an issue with the further affidavit he can address that by reply on points of law. The reason why the rules restrict the exchanges of this contentious affidavit to three is to ensure that there must be an end to litigation. This principle is expressed in the maxim ‘Interes reipublicae ut test finis litium, which mean, there must be an end to litigation. The said maxim was upheld by the court in the case of Eze & Anor V Okweremuo &ORS.(2010) LPELR-4025(CA)
Another reason why the use of contentious affidavit is restricted to three and does not allow proliferations of affidavit is because of the legal regimes of our adjectival laws. From the previous paragraphs it is clear that the federal laws and the rules of courts provides for the procedures involved in the use of contentious affidavit. And in doing so it did not include the use of counter to further affidavit and affidavit in support of counter- affidavit. On whether the law recognises a process known as “affidavit in support of counter affidavit’’, the court in the case of Onyeka V Ogbonna[18] held that there is no a process known in our law as ‘affidavit in support of counter-affidavit’. This is because once exchanges of contentious affidavit are not restricted; issues will become elastic, proliferated and so there will be no end to litigation.
Thus, the reason for excluding qualifying affidavit by whatever adjective used is because the Nigerian law specifically provides a way and manner in which contentious affidavit must be used. As such, where a law provides for the particular mode of doing a thing, that method must be followed and no other method will be allowed. This position is upheld by the Supreme Court in the case of Mato V Hember [19]where it was held that where a statute prescribed a means of doing a thing, no other means or manners shall be permitted. Any proceeding carried out through the other way that is exercised outside the scope provided by the statutes is a nullity.[20]
Third reason why the law does not recognized the use of phrases like “counter to further affidavit” and “affidavit in support of counter affidavit” is not only the verbiage associated with such terms; rather they constitute abuse of court process. On what constitute abuse of court processes the court included improper use of judicial process to the irritation of the other party in the case of Saiki & Ors V Esheveshe Nig Ltd.[21]
The reasons for filling ‘counter to further affidavit’ have been the excuse that the Applicant had raised fresh issues not mentioned in the counter affidavit. Or that the further affidavit introduced new issues different from the facts in issue before the court. On instances like this the law permits the party offended to reply on points of law that certain paragraphs of the further affidavit violates the rules of the court and the evidence Act. That is why it is called reply on points of law. It is this position of the law that forecloses the use of ‘counter-affidavit to further affidavit.’
The use of ‘affidavit in support of counter affidavit’ as a legal process is defective. This is because it presupposes contradiction. An affidavit may also define to mean counter affidavit. Thus, it is the applicant that is positioned in law to use affidavit in support of motion when he is applying for a particular relief in the court. Then the respondent is allowed to object the affidavit in support of motion via a process known as counter-affidavit- which does not require any affidavit to support it. However, where the Applicant wants to reply to certain issue raised in the counter affidavit, he can then file further affidavit. Therefore, the filling of ‘affidavit in support of counter affidavit’ is alien to Nigerian law.
HOW TO REDUCE THE ABUSE AND MISUSE OF CONTENTIOUS AFFIDAVITS IN NIGERIA
There are institutions that will be helpful in bolstering the way forward on justifiable use of contentious affidavit. These include the council of legal education, the judiciary and the Nigeria Bar Association. The Council of Legal education has a lot to do especially in the law school. They should be more emphasis on practical lawyering skills than theoretical approaches. Moot court session should be encouraged not only as competitive engagement, but as learning processes.
The judiciary should intervene by outrightly stating in the courts rules what the scopes of affidavits are and what it is not. In the interpretation section of the most court rules, in their definition, they are silent about what constitute affidavit and what does not. They should be able to expressly prohibit abuse and misuse of affidavit.
Continuous legal education in Nigeria should be more robust. Lawyers should be amenable to take refresher course organised by the Nigeria Bar Association. This can be done through our national conferences and branches’ programmes like law weeks. Lawyers usually assume to know it all and are less inclined to revisit the elementary basics of our adjectival law, and thereafter, making errors that will be hitches in the wheel of administration of justice. The misuse and abuse of contentious affidavit is fact that is common with both the young and the old wig.
CONCLUSION
This work started with the conceptual clarification of terms. Next to it was the examination of the statutory basis of contentious affidavits under Nigeria law. After that the work discussed the reflections of contentious affidavit under the federal courts and some high courts of the states of the federation. The work further established that there are only three stages involved in the use of contentious affidavit in Nigeria. The work finally concludes by suggesting the ways forward on how to avoid the misuse and abuse of contentious affidavit. The ultimate aim of this writing is to correct these anomalies. It is the writer’s hope that this goal is achieved in the minds of the readers.
[1]1.(2018) 15 @ P. 51, Parass A-B
[2]2.GTB PLC V Abiodun (2017) LPELR-42SS1(CA)
[3]3. Sections 107-108
[4]4.Order 43 (1) (1) to (4) of the High Court of the Federal Capital Territory Abuja, (Civil Procedure),Rules.2018
[5]5.Order 17Rule 10 of the NIC (RULES), 2017
[6] Order 17Rule 12 of the NIC (RULES), 2017
[7]7.Nwalo Fidelis, “Civil Prceedure in Nigeria”2nd Edn.(Univesrity of Lagos, Press,2000) @P 586
[8]8.Ojukwu Ernest and Chudi N. Ojukwu, “Introduction to Civil Procedure” 2nd Edn. (Helen-Roberts, Abuja,2005) Pp.220-221
[9]9.Order VI Rules 2 and 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009
[10]10.Order43(1),(2)and(3) of the Lagos State High Court Civil Procedure Rules, 2019
[11]11.Order 8Rules (1), (2), (3),(4) and (5) Ondo State, 2010
[12]12.Order 41.1. (1),(2) (3) and (4) of The Nasarawa State High Court( Civil Procedure) Rules, 2010
[13]13.Jigawa State High Court (Civil Procedure) Rules, 2008
[14]14.See Order 10 Rules(1)-(4)of the Taraba State High Court (Civil Procedure) Rules,2011,providesonlyfor affidavit and counter affidavit. It appears not to provide for further affidavit, instead it refers to Reply. See also Order 8 of the Adamawa High Court (Civil Procedure) Rules, 1991
[15] Order 37 Rule 1(1)-(3)Edo State High Court (Civil Procedure) Rules,2012.
[16]16.Order 39 Rule 1(1)-(4) Bayelsa State High Court (Civil Procedure) Rules, 2010 and Order 39 R.1 (1)-(5) of the Delta State High Court (Civil Procedure)Rules,2009
[17]17.See Order 39 Rule 1 (1) to (4) of the Imo State High Court (Civil Procedure ) Rules,2008 and Order 39 Rule 1 (1) to (4) of the Ebonyi State High Court (Civil Procedure) Rules, 2008
[18]18.(2013)11NWLR@p.489 P.489 paras B-E
[19]19.(2018) 5 NWLR (Pt 1612) at P. 295, paras. E-F
[20]20.Ibid
[21]21.(2013) LPELR-20739 (CA)
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