By R.A.C.E Achara
Let’s hope the court will grant this discretionary application.
The motion is very persuasive, even compelling in its saliency and brevity. But I worry.
I worry not about the rightness of what has been presented but on doubtful prior decisions, which offer avoidable technical objections, which the applicant’s could have sidestepped without opening the opportunity for a possibly adverse ruling on them, one way or the other.
For example, I should have expected the applicants to preempt the objection that is to the effect that a court should reject evidence by way of a supporting affidavit if such an affidavit has been made by a legal practitioner representing any of the parties.
This objection is double edged.
If you say the material is such that only counsel for the applicant can understand and make it on his behalf, then, there’s judicial precedent to the effect that acting, qua counsel, the deponent is consequently supposed to have affixed his NBA stamp and seal otherwise his signature is to be regarded as not there. The supporting affidavit in this application is sans such a stamp and seal.
Without a valid signature, the affidavit is invalid. With the affidavit also vanishes all the exhibited documents; as well, consequently, of all parts of the thus naked motion paper and accompanying written address.
But if the deponent need be no counsel, there are yet, regrettably, recent SC authorities (in which counsel had unfortunately not drawn the attention of Their Lordships to their prior, not overruled, and thus binding 1986 full court decision to the contrary) in which there had been dicta to suggest that a supporting affidavit should be nullified, as unusable, if made by a legal practitioner or clerk in the law firm of such counsel!
There are conflicting CA decisions on the point.
The latest one is consistent with the 1986(87?) controlling SC decision, per Oputa, JSC leading, in Elabanjo v. Tijani.
But although, in my respectful submission, preferable, I’m compelled nevertheless to point out that it is per incuriam for ignoring the contrary earlier CA decision that nullifies such an affidavit.
The only saving grace is that that earlier CA decision is itself per incuriam a much earlier CA decision and inconsistent with the indisputably controlling SC decision in Elabanjo.
But why expose the application to this avoidable possible loophole?
To sidestep this expectable but unwarranted controversy, why not expressly indicate that the deponent is currently not acting, qua counsel, as seems probably the case from a cursory look at the list of the counsel expressly indicated as acting in that capacity (of applicants’ counsel) on the face of the motion paper and on the written address?
Why didn’t they get the applicant or the Chairman or Secretary of the 2nd applicant PDP, or, best of all, any administrative staff of the applicants that was present physically or virtually at the US court-ordered deposition and certification, to swear to these facts by signing the affidavit before the Commissioner for Oaths at the Supreme Court?
What could they possibly have lost by sidestepping this ‘overcomeable’ but potential landmine?
Again, but this is minor, the Written Address, which is filed along with the motion paper, omits addresses for service of the process on any of the three respondents.
A Supreme Court (SC) decision of 25/2/2021(22?) – I think Jarigbe and Ukpo or parties fighting over a Senate seat in Cross River State – decided that absence of an address for service is fatal; as being indicative of an intention, in a non ex parte motion, to proceed without notifying one’s opponents of the pending matter.
However, it would be crass ‘technicism’ (not just ‘technicality’) if under the present facts, the Hon. Court would feel persuaded to apply that decision to the present appeal.
This is because the missing addresses for service were fully included at the appropriate places on the motion paper to which the Written Address has been added as an inextricable part.
My other worry is in relation to the delivery machinery for the substantive evidence, which the appellants propose to inject as fresh or additional evidence to the appeal.
No doubt, the rules permit what they have done by way of prayers asking (without the intermediation of any direct witness or witnesses) for production, and when produced, receipt by the court of the, as it were, hearsay evidence of Westberg’s deposition and its certified true copy (by probably a court recorder or court clerk of a foreign court not within the Evidence Act’s judicially recognized ‘Commonwealth’).
The District Court of the State of Illinois and indeed even the entire United States of America are not part of the Commonwealth of States.
This has been so since at least the successful war of independence and thus before the creation of the Commonwealth of States which are or formerly had been under the suzerainty of the United Kingdom.
In the event, why not err on the side of excess by introducing the CTC and or original deposition through a person who was present at the deposition, witnessed its certification, and then got all these notarized at the Nigerian embassy in the non-Commonwealth country called the United States of America?
Anyway, I tend to worry too much and thus I attempt to fill gaps that might never even be noticed or canvassed.
Prof. R. A. C. E. Achara, Ph.D. (Nig.);
Doctoral Prizeman, University of Nigeria Postgraduate Prize for Law;
Bill & Melinda Gates Foundation Fellow of the Five College African Scholars Program, University of Massachusetts, Amherst;
Millennial Chairman, NBA Enugu Branch 2000-2002;
Principal,
Prof. RACE Achara Law Chambers,
New Haven, Enugu.
[[email protected]]
01:07, Sunday,
8 October 2023.
