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PAM V. INC. TRUSTEES OF THE ASSEMBLIES OF GOD, NIGERIA: On whether deponent of better and further affidavit deposed in an action must be same person who deposed to initial affidavit in same action. An insight into the Court of Appeal laudable decision therein.
Citation: [2020]14 NWLR PT.1745 at PG. 393.
Courtesy: Moruff O. Balogun Esq.
Summary of facts:
The respondent commenced an action by originating Summons against the appellants, and sought several declaratory and injunctive orders relating to the internal affairs of the Assemblies of God Nigeria and its properties. The originating summons was supported by an affidavit deposed to by one Reverend Godwin Akpan Amaowoh and a written address.
The appellants filed a memorandum of appearance, a counter affidavit deposed to by one Reverend Meshak Samson, and a written address. The appellants counter affidavit pointedly denied some facts deposed to in the affidavit in support of the originating summons. It was stated in the counter affidavit that Reverend Godwin Akpan Amaowoh was not a trustee of the Assemblies of God Nigeria neither was he its Secretary and that he did not have the authority of the incorporated trustees to file the suit or depose to any affidavit on behalf of the respondent. The appellants also pleaded res judicata and relied on a suit commenced by one Reverend Professor Paul Emeka against the Corporate Affairs Commission, the respondent and 23 other defendants.
In response to the appellant’s counter affidavit, the respondent filed a further and better affidavit deposed to by One Reverend Vincent Akin Alaje. The respondent also filed a written reply on points of law. The evidence presented under the affidavits filed by the respondent included: (a) a certified true copy of a certificate dated 22nd June 2017 issued by the Corporate Affairs Commission, which listed both Reverend Akin Alaje and Reverend Godwin Akpan Amaowoh as trustees of the Assemblies of God Nigeria (the respondent); and (b) a copy of a resolution the respondent made on 20th September 2016 by which the respondent authorized Reverend Godwin Akpan Amaowoh as the General Secretary and a member of the respondent, to initiate any process for the recovery of Assemblies of God property/properties; to represent the respondent in court; to depose to affidavit and take any step in court that will facilitate the recovery of the properties of the church from persons who are in unlawful possession.
At the hearing of the matter, the appellants’ counsel adopted the appellants counter affidavit and urged the trial court to disregard the further and better affidavit filed by the respondent because Reverend Vincent Akin Alaje who deposed to that affidavit did not depose to a main affidavit on which the further and better affidavit could rest.
The trial court delivered its judgment after hearing the parties. It held that res judicata was inapplicable because Reverend Professor Paul Emeka (the plaintiff) in the first suit was not a party to the respondent’s suit. It entered judgment in favour of the respondent and granted the reliefs sought by the respondent.
Dissatisfied, the appellants appealed to the Court of Appeal. They contended that the trial court’s refusal to rule on their objection to the competence of the respondent’s further and better affidavit completely denied them fair hearing. They also contended that the trial court erred when it failed to rule on their objection to the competency of the further and better affidavit filed by the respondent and on their plea of res judicata.
The respondent countered that the appellants did not file any formal objection to the competency of the further and better affidavit, but only stated during hearing of the originating summons that the trial court should disregard it. The respondent further argued that the trial court considered the issue of res judicata.
Held: (Unanimously dismissing the appeal):
The Court of Appeal raised and considered the following issues:
On Whether deponent of better and further affidavit in an action must be same person who deposed to initial affidavit in same action:
Sections 107-117 of the Evidence Act, 2011 do not state that a person who deposed to an affidavit in respect of a matter must be the same person to depose to a further and better affidavit in respect of the same matter. What the law requires is that the deponent of an affidavit should be conversant with the facts of the case or information derived from another person which he believes to be true and the name of the informant be reflected therein. In this case, both Reverend Godwin Akpan Amaowoh and Reverend Vincent Akin Alaje are trustees of the Assemblies of God Nigeria and are competent witnesses to depose to the affidavit and the further and better affidavit filed by the respondent.
On How to challenge competency of affidavit filed in an action:
A party to an action who desires to challenge the competency of an affidavit filed in the action should do so by filing a formal objection. In this case, the appellants should have filed a formal objection to challenge the competency of the respondent’s further and better affidavit. The appellants failed to do that. Therefore, they were not entitled to complain on appeal as they did.
On When failure of court to consider an issue does not amount to denial of fair hearing:
Where a Judge or court fails to consider an issue adjudged not to be relevant or crucial to the determination of the case or appeal before the court, the non-reference to it would not be denial of fair hearing, and would not amount to miscarriage of justice.
On Duty on court to ensure process filed comply with relevant law before acting on it:
Courts are duly bound to verify all processes filed to ensure strict compliance with the relevant laws before taking action on them. In this case, the trial court was right to scrutinize the processes filed before it to arrive at its decision.
On Nature of affidavit in support of originating summons:
In actions commenced by originating summons, the affidavit evidence takes the place of pleadings. The averments are on oath and have same evidential value as a witness statement on oath frontloaded in a suit commenced by writ of summons in which pleadings are filed. The counter affidavit serves as a statement of defence.
On Permitted contents of affidavit filed in court Proceeding:
Section 115(1) of the Evidence Act, 2011 states that every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
Courtesy:
Moruff O. Balogun, Esq.
Ijebu Ode, Ogun State.
08052871414.
