Legal Effect of Verifying Affidavit and Documents Attached thereto
“A VERIFYING AFFIDAVIT QUALIFIES AS AN AFFIDAVIT, WHICH IS A FORM OF EVIDENCE, AND ALL OTHER DOCUMENTS ATTACHED TO IT, CANNOT RENDER IT DEFECTIVE”
Facts
The 1st Respondent was awarded two communications licenses, by the Appellant and 2nd Respondent. It commenced deployment of equipment as required by its contract with them, but the licenses were revoked and resold to another operator. Consequent upon the above, the 1st Respondent instituted an action for a judicial review of acts of the Appellant and the 2nd Respondent, by an Originating Motion. At the conclusion of the hearing, the trial court found that the Appellant
and 2nd Respondent were in breach of their contract with the 1st Respondent, and awarded damages in favour of the 1st Respondent.
Dissatisfied with the decision of the trial court, the Appellant unsuccessfully appealed to the Court of Appeal, and this led to a further appeal to the Supreme Court. The 1st Respondent filed a Cross-appeal, against the decision of the lower court.
Issues for Determination The 1st Respondent raised a Preliminary Objection, to the competence of the Appellant’s 1st and 3rd issues. The objection to the first issue was that rules of the Supreme Court, does not provide for “sub-issues”, while the objection to the third issue was that, being question of mixed law and fact, it was raised without obtaining leave of court.
In the main appeal, the Supreme Court considered the following issues:
1. Whether the Court of Appeal was right in law, to have dismissed the appeal having regard to: (i) the fundamentally defective state of the papers relied upon for the originating proceedings; (ii) the complete absence of legally admissible or tenable evidence; and (iii) the valid and subsisting portions of the final ruling of the trial court and whether the Court of Appeal had the necessary jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature.
2. Bearing in mind the very peculiar nature of this proceeding (particularly the dearth of pleadings, supporting affidavit and admissible evidence), whether the Court of Appeal was wrong in not allowing the appeal on damages.
3. Whether the lower court considered the material issues for determination in issue 4 formulated before it when it resolved issues 2, 3 and 5.
4. Whether the Court of Appeal ought to have raised the issue of the relative strength of the parties suo motu, and resolve same without inviting the parties to address it. The issue in the Cross appeal was:
Whether upon the finding that Nigerian Communications Commission was in breach of contract, the learned trial Judge did correctly or at all assess the damages suffered by the 1st Respondent, or whether the issue ought to be re-assessed.
Arguments
The Appellant contended that, the matter initiated by originating motion, ought to have been fought by a supporting affidavit and not a verifying affidavit. Counsel argued further that, a court is competent when the case before it is initiated by due process of law, and upon fulfilment of any condition precedent. The 1st Respondent did not take the procedural steps and preconditions imposed by Sections 85, 86 and 87 of the Nigerian Communications Act, 2003, and therefore, the court lacked the jurisdiction to hear or continue the matter. Opposing the submission, the 1st Respondent submitted that, the form of the originating process is not a matter of jurisdiction, but practice and procedure governed by the Federal High Court Rules, and the failure to comply with the provisions for the commencement of actions is an irregularity that can be waived. He contended that, the exhibits attached to the verifying affidavit and the 1st Respondent’s statement constitute the affidavit, and are legally admissible evidence to prove the alleged fact. On the challenge to the jurisdiction of court, the Respondent argued that, jurisdiction of court is determined by the existing law at the time the cause of action arose.
On the second issue, the Appellant stated that the damages claimed by the 1st Respondent before the trial court, was speculative and futuristic, and same should not have been granted. He argued further that, having rejected the claim for special damages, there was no claim for general damages properly before the court, and that the law requires pleadings and evidence to prove same. Contrariwise, it was submitted for the Respondent that, the claim is not futuristic or speculative, but it is a remedy the court can grant after enquiring into the losses suffered. Counsel contended that, a court can grant an alternative relief where the main relief fails and that general damages do not require strict proof; where evidence supports the award of damages, it cannot be perverse.
The Appellant posited on the 3rd issue that, the question whether it had breached the licence issued to the 1st Respondent was a crucial issue which the Court of Appeal was invited to resolve, but the court avoided, and this occasioned grave injustice to the Appellant. The 1st Respondent countered this submission, on the basis that where no prejudice is made, the omission to consider all issues cannot be the basis for setting aside a decision of court.
On the fourth issue, the Appellant argued that, the cases of parties are limited to their pleadings and evidence. The issue of the relative size of the parties was raised suo motu by the Court of Appeal, without affording the parties the opportunity to address it on it; and this amounted to bias and descending into the arena. The 1st Respondent argued that, there was no evidence of compromise or bias.
In arguing the Cross-Appeal, the Cross-Appellant contended that, the Cross- Respondent had no power to withdraw the licences since a contract was completed, and it was estopped from resiling from same, but the refusal of the trial court to rely on the report of the firm of KPMG prepared by Bashorun J. K. Randle, owing to the failure Cross-Appellant to call him as a witness, was a misconception, since the proceeding was for judicial review conducted by way of preponderance of affidavit and exhibit. Court’s Judgement and Rationale The preliminary objection was considered first, and dismissed on the basis that, such objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal, which cannot affect the hearing of the appeal. Further, the court agreed that Order 6 of the Supreme Court Rules does not provide for “sub-issues”; however, a party who complains about formulation of issues must state the injustice occasioned to him by such formulation, for the appellate court to reverse the decision of the lower court.
Determining the first issue, Their Lordships held that, the proceeding before the trial court was commenced by Originating Motion accompanied by a Verifying Affidavit. By Order 47 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000, it is a genre of proceedings that is fought on affidavit evidence, and the fact that a Verifying Affidavit is used, does not make the process fundamentally defective. The name Verifying Affidavit and Supporting Affidavit is a matter of nomenclature, and the adjective does not distort its substance and intent. A Verifying Affidavit qualifies as an affidavit, which is a form of evidence, and all other documents attached to it, cannot render it defective. The report of J.K. Randle and other documents attached are admissible evidence, and may only be rejected based on other litmus tests of weight or relevancy of document. Further, where legislation provides for a condition precedent before a court can assume jurisdiction, that condition must be fulfilled subject to recognised exceptions. The law in force at the time the cause of action arose, is the law applicable for determining the case, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. It is deducible from the Originating Motion that the cause of action arose in the year 2000; the Statute applicable to the contractual relationship between the parties was the Nigerian Communications Act, 1992. The Sections 85 to 87 of the Nigerian Communications Act, 2003 which stipulate the pre-conditions and procedural steps to be taken by the 1st Respondent, came into force three years after the cause of action arose and it is jurisprudentially wrong for a substantive legislation to have a retrospective effect.
On the second issue, the Court held that, in an action for breach of contract, the measure of damages, is the loss flowing naturally from the breach. In determining the quantum of damages to be awarded, the court is to exercise its discretion, taking into consideration the evidence before it and the quantum of general damages need not be pleaded or proved. The 1st Respondent’s relief for payment of damages in this case, is not speculative or futuristic. The 1st Respondent’s claims as endorsed on the originating process, qualify as remedies a court can grant alternatively, and the Appellant did not show preponderantly how excessive the award of damages is.
In resolving the third issue, the Supreme Court found that, it is not the length and verbosity that defines consideration of an issue. Their Lordships held that, the Court of Appeal considered the Appellant’s fourth issue before it and discharged its statutory duty accordingly. More so, failure of court to consider all issues submitted before it would not amount to denial of fair hearing, unless it is shown that a miscarriage of justice occurred.
In respect of the fifth issue, the Apex Court held that, the Court of Appeal did not raise an issue suo motu, the Court of Appeal merely made a comment which is an obiter dictum.
As regard the Cross Appeal, same was heard on the Cross-Appellant’s brief alone, since the CrossRespondent’s brief was struck out, having been premised on an issue formulated from a ground outside the Cross-Appellant’s ground of appeal. The Court however, dismissed the Cross-Appeal, as the Cross-Appellant did not show that the trial court relied on wrong principles, or that the award was an entirely erroneous estimate. Appeal and Cross-Appeal Dismissed.
Representation:
D.D. Dodo, SAN and F. Chukwuemeka Ofodile, SAN with Nneka Ofodile, Esq. Kauna Penzin, Esq. and S.A. Aigegie, Esq. for the Appellant/Cross Respondent. C.A. Candide-Johnson, SAN with Oladiran Falore, Esq. for the 1st Respondent/ Cross Appellant. Reported by Optimum Publishers Limited