He who asserts must prove – Oji

JUDGMENTI have thoroughly considered the affidavit in support of this application. There are no facts averred to therein which establish an infringement of the applicant’s right to life. Her allegations in paragraphs 8, 9, 10 and 12 of the affidavit in support of this application that the respondent threatened her life were denied by the […]

JUDGMENT
I have thoroughly considered the affidavit in support of this application. There are no facts averred to therein which establish an infringement of the applicant’s right to life. Her allegations in paragraphs 8, 9, 10 and 12 of the affidavit in support of this application that the respondent threatened her life were denied by the respondent. The allegations were not substantiated by the applicant. The application as to infringement of her right to private and family life was also not substantiated. Was there any interference with her home, correspondence, telephone conversations and telegraphic communication?
No facts in support whatsoever were averred by the applicant. On the allegation of compulsory acquisition of property, the applicant has not established that any vehicle of hers was compulsorily acquired by the respondent on 14th November 2013. The respondent denied this claim in paragraph 2 (o) and (r) of her counter affidavit of Shagari Dakwo.
The onus is on the applicant to prove that the respondent prevented her from removing her vehicle on the said date. She did not debunk the averment of the respondent in paragraph 2(p) of the counter affidavit that the vehicle has been more stationary than mobile and that the Respondent hardly sees the applicant near it.
It is difficult to believe the applicant that the police will deem the facts she averred in paragraphs 8, 10, 11 and 13 of her affidavit a civil matter. That is that the respondent threatened her life, indeed threatened to take her out of this world for good and locked her for 45 minutes against her will in her compound, that she actually had to plead with the respondent and her privies to spare her life, and she only got off the hook of the respondent by the grace of God! All this was after the respondent and her cohorts had damaged the bumper of her car!
I do not think she reported these facts to the police because criminal intimidation, criminal trespass, mischief and wrongful confinement are all criminal offences in which the police can and will intervene. She did not because nothing of the sort occurred.
The respondent averred in paragraph 2(u) of her counter affidavit that the applicant left with the keys to her apartment and electricity cards the entire premises uses to access electricity. The applicant did not deny this in any further affidavit. These facts are therefore deemed admitted. If the applicant is to be believed that the respondent prevented her from taking her car (which I do not believe), how was the respondent not able to collect the keys to the apartment and electricity cards from the applicant, who claimed, she had to beg for her life and only managed to get off the hook of the respondent by the grace of God!
The respondent’s exhibit A – certificate of judgment clearly shows the judgment was obtained against the applicant on 5th November 2013. Wherein the applicant was ordered to vacate the premises forthwith and pay N145, 833 mesne profit and N3,000 costs of action.
The applicant did not deny the respondent’s averment in paragraphs 2 (j) of the counter affidavit that the applicant decided to vacate the premises surreptitiously when she discovered the respondent intended to enforce the judgment after the applicant had endorsed a copy of the judgment. This fact is deemed admitted.
The applicant therefore lied where in paragraph 5 of her affidavit she stated that she moved out on 14th November 2013, before the respondent obtained judgment for mesne profit against her.
Indeed the story of the applicant does not impress me as the truth. To my mind she is a judgment debtor trying to device by all means a way to evade paying her judgment debt by bringing this action.
Exhibit A of her affidavit shows the vehicle at a mechanic workshop which lends credence to the respondent’s averment in paragraph 2 (p) of the counter affidavit that the vehicle is more stationary than mobile.
Paragraph 2 (p) is not in conflict with paragraph 2 (s) of the counter affidavit. The applicant also lied in paragraph 19 of her affidavit that the respondent has not instituted any action against her when clearly to her knowledge, the respondent had obtained judgment for mesne profits against her.
I do not find the applicant’s case proved at all. This action is a total waste of time. I accordingly dismiss her application in its entirety.
 A successful party is entitled to costs. I award costs of N10,000 in favour of the respondent against the applicant.

Hon. Justice Chizoba N. Oji
Hon. Judge
C.U.O. Ebubealor for the applicant
S.A. Lawal for the respondent