12 BASKET FOODS LTD v. FCMB (2020)

12 BASKET FOODS LTD v. FCMB

(2020)LCN/14533(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/508/2011(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

12 BASKET FOODS LIMITED APPELANT(S)

And

FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT AN AMENDMENT RELATES BACK TO THE DATE IN WHICH THE PROCESS AMENDED WAS FILED

It is trite law that an amendment relates back to the date in which the process amended was filed. It is retrospective in effect. See UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT 1086) 373 at 399 and OKWULEHIE vs. OBASI (2014) LPELR (24292) 1 at 49-50. PER OGAKWU, J.C.A.

WHETHER OR NOT AN AMENDMENT FOR THE PURPOSE OF DETERMINING THE REAL ISSUE OR QUESTION IN A PROCEEDING SHOULD BE ALLOWED

Generally, an amendment for the purpose of determining the real question or issue in a proceeding ought to be allowed. Such is the settled legal position that all types of amendment made for the purpose of determining the real questions in controversy between the parties can be accommodated provided that the amendment does not overreach or in any way prejudice the other party.
In the oft-cited English case of CROPPER vs. SMITH (1883) 26 Ch. D 700 at 711, Bowen, L. J. stated:
“It is a well-established principle that the object of a Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace … it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.”
See alsoKAYODE vs. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2016) LPELR-40195 (CA) 1 at 22 and ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (PT 60) 214. PER OGAKWU, J.C.A.

THE PURPOSE OF AN AMENDMENT
In ALSTHOM S.A. vs. SARAKI (2000) 14 NWLR (PT 687) 415 Achike, JSC (of blessed memory) stated as follows at page 424:
“Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed.” PER OGAKWU, J.C.A.

THE TWO TYPES OF INTERESTS AWARDED BY A COURT

There are two types of interest usually awarded by a Court, namely pre-judgment interest otherwise known as ‘interest as of right’ or ‘moratory interest’ and post-judgment interest otherwise known as ‘discretionary interest’, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. While pre-judgment interest must be specifically claimed and proved in order to be awarded by a Court, post-judgment interest need not be specifically claimed before it is awarded since it is statutory and the Courts are empowered to award it at its discretion based on the stipulated rates and it need not be proved: HIMMA MERCHANTS LTD vs. ALIYU (1994) 5 NWLR (PT 347) 667, TEXACO OVERSEAS NIGERIA PETROLEUM COMPANY UNLTD vs. PEDMAR NIGERIA LTD (2002) LPELR (3145) 1 at 20-21 and DIAMOND BANK LTD vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 30-31. PER OGAKWU, J.C.A.

CIRCUMSTANCES WHERE AN AMENDMENT WILL NOT BE GRANTED

An amendment will not be granted where it will not avert or cure the defect in the proceedings; also where an amendment is not material but is an inconsistent or useless amendment, it will not be granted. See OYENUGA vs. PROVISIONAL COUNCIL OF THE UNIVERSITY OF IFE (1965) NMLR 9, FIVE STAR INDUSTRIES LTD vs. BANK OF INDUSTRY (2013) LPELR (22081) 1 at 14-16, OKOLO vs. UNION BANK (1999) LPELR (2464) 1 at 12, JESSICA TRADING CO. LTD vs. BENDEL INSURANCE (2003) LPELR (1608) 1 at 15. Put differently, even with the Latinism, ex abundantia cautela, a Court still does not act in vain and will not exercise its discretion if it will be inutile and nothing will be gained in the circumstances:IWEKA vs. SCOA (NIG) LTD (2000) LPELR (1563) 1 at 15, NWANDU vs. EGWUAGU (2014) LPELR (41076) 1 at 12 and USANI vs. INEC (2019) LPELR (48777) 1 (CA). On the state of the law, since the relief for post-judgment interest need not be specifically claimed before it can be awarded, nothing will be achieved by a grant of the amendment to include a relief for the award of post-judgment interest. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Lead Judgment): There is an appeal and a cross appeal in this matter. The Cross Appellant had previously amended its Notice of Cross Appeal. It however desires to further amend the said Amended Notice of Cross Appeal. Towards this end, it filed an application for that purpose. The said application which was filed on 8th March 2019 seeks for the following orders:
“1. AN ORDER granting the Applicant leave to further amend its Amended Notice of Appeal dated 23rd May 2012 in the terms of Exhibit OL 2 attached to this application;
2. AN ORDER extending the time for the Applicant to file an Additional Record of Appeal;”

The grounds upon, which the application is predicated are as follows:
“1. The Applicant filed a Notice of Cross-Appeal dated 6th May 2011 challenging the part of the judgment of the trial Court that refused to award it special damages as sought in its statement of claim (at page 3 to 7 of the Record of Appeal).
2. The Applicant however discovered after filing the Notice of Cross-Appeal and studying the Record of Appeal that there was a new ground of appeal

that ought to be contained in its aforementioned Notice of Cross-Appeal.
3. The Applicant sought leave from Your Lordships and same was granted it to file an Amended Notice of Cross-Appeal and same was filed on 23rd May 2012.
4. The Applicant has now recently discovered a need to also amend its aforementioned Amended Notice of Cross-Appeal. There is therefore the need for the Applicant to seek another leave to amend its Amended Notice of Cross-Appeal in order to file its Further Amended Notice of Appeal which a proposed copy of same is attached to this application as Exhibit OL 3.
5. Also, the Applicant has to file an additional record of appeal to contain its original notice of cross-appeal, its amended notice of cross-appeal and further amended notice of cross-appeal but the Applicant is no longer within the 15 day period required of it by Order 8 Rule 6 of the Rules of this Court to file an Additional Record of Appeal. The Applicant is therefore seeking a relief of extension of time in this regard.”

The application is supported by an affidavit of fourteen (14) paragraphs to which the relevant documents were exhibited.

The Appellant opposed the application. It filed an affidavit of twenty (20) paragraphs in opposition on 24th January 2020. The Court ordered that written addresses be filed and exchanged. The Respondent/Cross Appellant/Applicant filed its written address on 4th February 2020. The Appellant/Cross Respondent/Respondent filed its written address on 21st February 2020. At the hearing of the application, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Applicant distilled a sole issue for determination on the application, namely:
“Whether the Cross-Appellant’s application filed on 8th March 2019 ought to be granted?”

The Appellant/Cross Respondent equally formulated a sole issue for determination, as follows:
“Whether the Cross Appellant’s application filed on the 8th of March 2019 to further amend their Notice of Cross Appeal is competent.”

The issue crafted by the Applicant is distensible and encompasses the issue nominated by the Appellant/Cross Respondent. This is so because if the application is not competent, which is the

thrust of the issue formulated by the Appellant/Cross Appellant, it will not be granted. Even where it is competent, it may still not be granted, if it is not grantable based on the state of the law and the materials furnished by the parties. Accordingly, it is on the basis of the issue as crafted by the Applicant that I will now consider the processes filed and resolve this application.

ISSUE FOR DETERMINATION
Whether the Cross-Appellant’s application filed on 8th March 2019 ought to be granted?

SUBMISSIONS OF LEARNED COUNSEL
The Applicant submits that the essence of an amendment is to enable a party present his case in a manner that would assist the Court effectively and effectually determine the issues in dispute. The amendment of process to correct errors or omissions was said to be in consonance with the right of fair hearing enshrined in Section 36 of the 1999 Constitution and that the grant of amendment is to meet the justice of the case. The Appellant/Cross Respondent’s counter affidavit was said to be an attack on the original Notice of Cross Appeal which is not the extant Notice of Cross Appeal that is sought to be

further amended. The deposition in the counter affidavit were said to be misconceived as the Court was functus officio and could not sit on appeal over the order granting leave to amend the original Notice of Cross Appeal.

It was posited that an appeal is a re-hearing and that a party, can amend his process to add what the lower Court did not have the opportunity to consider. The cases of A-G OYO STATE vs. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT 92) 1 and ADIO vs. THE STATE (1986) 2 NWLR (PT 211) 581 were referred to. It was stated that an amendment will be granted on appeal if it is in line with the evidence adduced at the lower Court. Section 15 of the Court of Appeal Act was said to empower this Court to grant a relief that the lower Court can ordinarily grant. The relief sought to be added to the amended notice of cross appeal was stated to be a relief which the lower Court can grant and therefore the Appellant/Cross Respondent cannot be overreached by a grant of the amendment. Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004 was referred to and it was contended that post judgment interest is a statutory relief which a

party is entitled to notwithstanding that it was not sought as part of the reliefs. It was conclusively submitted that a party had to furnish materials to show how it would be overreached by the grant of an application as merely stating that he would be overreached did not suffice.

In replication, the Appellant/Cross Respondent submits that the original Notice of Cross Appeal is incompetent as the identity of the person who signed the same is not known and there is no indication as to the person who signed the same. The cases ofIKECHUKWU vs. FRN (2015) 7 NWLR (PT 1457) 1 at 18 and GTB PLC vs. INNOSON NIG LTD (2017) 16 NWLR (PT 1591) 181 at 189 were called in aid. The original Notice of Appeal was argued to be the foundation of the further amendment being sought and that being incompetent, the Court cannot grant the application to further amend the notice of cross appeal. VideMACFOY vs. UAC LTD (1962) AC [no page stated].

It is the further submission of the Appellant/Cross Respondent that the amendment sought is to introduce a totally new relief that was not part of the reliefs sought at the lower Court. A party on appeal, it was maintained, is to

be consistent in pursuing the same case presented at the trial Court and proving it since the jurisdiction of the appellate Court is derived from the claim at the trial Court. The cases of ODOM vs. PDP (2015) 6 NWLR (PT 1456) 527 at 569 and AJIDE vs. KELANI (1985) 3 NWLR (PT 12) 248 at 269 were relied upon. It was conclusively submitted that the Applicant has not sought to add any new ground of appeal contrary to its depositions in the supporting affidavit and the grounds for the application.

RESOLUTION
The Appellant/Cross Respondent challenges the competence of the original Notice of Cross Appeal and contends that the same being incompetent, there can be no further amendment of the Notice of Cross Appeal. The Records of Court disclose that the original Notice of Cross Appeal was filed on 6th May 2011. By an application filed on 9th May 2012, the Applicant sought leave to amend the said original notice of cross appeal and the same was granted on 16th May 2012 and the Applicant was given fourteen (14) days within which to file the Amended Notice of Cross Appeal. The Amended Notice of Cross Appeal was filed on 23rd May 2012. It is trite law that an

amendment relates back to the date in which the process amended was filed. It is retrospective in effect. See UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT 1086) 373 at 399 and OKWULEHIE vs. OBASI (2014) LPELR (24292) 1 at 49-50.
It therefore follows in the circumstances of this case; that the Amended Notice of Cross Appeal, even though filed on 23rd May 2012, dates back to 6th May 2011 when the original Notice of Cross Appeal was filed. The effect of this on the original Notice of Cross Appeal is that it became non-existent and extinct. In the words of Oguntade, JSC in AFRIBANK (NIG) PLC vs. AKWARA (2006) 5 NWLR (PT 974) 619 at 640:
“It is undisputed that this Court on 25th June 2003 granted the appellant six weeks to file an amended notice of appeal. The effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent.”
See also OKWULEHIE vs. OBASI (supra) and OBIDI vs. CHINEDU (2017) LPELR (42749) 1 at 7. The concomitance is that the said original Notice of Cross Appeal filed on 6th May 2011 having become extinct and non-existent, the Appellant/Cross

Respondent cannot be heard to contend that the same is the foundation for any further amendment of the Notice of Cross Appeal. No. The further amendment sought relates to the extant and subsisting notice of cross appeal, which is the Amended Notice of Cross Appeal filed on 23rd May 2012. Howbeit, the pertinent question still remains whether the application to amend the said Amended Notice of Cross Appeal ought to be granted.

kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace … it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.”
See alsoKAYODE vs. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2016) LPELR-40195 (CA) 1 at 22 and ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (PT 60) 214.
In ALSTHOM S.A. vs. SARAKI (2000) 14 NWLR (PT 687) 415 Achike, JSC (of blessed memory) stated as follows at page 424:
“Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in

favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed.”
In his own contribution in the said case, Karibi-Whyte, JSC, stated as follows at page 427A-B:
“The basic principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties … The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.”
See also UBN PLC vs. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT 491) 29 at 48- 49.

By Order 7 Rule 8 of the Court of Appeal Rules, a notice of appeal may be amended by or with leave of Court at any time. I have already held that the extant notice of

appeal subject of this application is the Amended Notice of Cross Appeal filed on 23rd May 2012. It is competent and valid. Once there is a valid notice of appeal it can be amended: OKPALA vs. IBEME (1989) 2 NWLR (PT 102) 208 and ADELAJA vs. ALADE (1994) 7 NWLR (PT 358) 537.
The purpose of an amendment to a notice of appeal is to ensure that the complaint of the appellant against the proceedings appealed against are laid and ventilated before the Court. The law remains as provided for in Order 7 Rule 8 of the Court of Appeal Rules, 2016 that a notice of appeal may be amended by or with leave of the Court at any time: IKECHUKWU vs. NWOYE (2013) LPELR (22018) 1 at 13 and SOUTH ATLANTIC PETROLEUM LTD vs. MINISTER OF PETROLEUM RESOURCES (2013) LPELR (21892) 1 at 17.
The foregoing is undoubtedly the general legal position. The diacritical circumstances of this matter however present a different proposition. The amendment sought to be effected is an amendment to introduce a new relief to the Amended Notice of Cross Appeal. The relief sought to be introduced is a relief for post-judgment interest. The Applicant did not claim the relief at the lower Court,

so not having been claimed, the lower Court did not pronounce on the same.
The amendment which the Applicant seeks to introduce reads as follows:
“An Order granting 21% post-judgment interest on the judgment sum on an annual basis from the date of delivery of judgment by the trial Court to the date of payment of the judgment sum or execution of judgment against the Appellant/Cross-Respondent.”
There is nothing in the law, contrary to the contention of the Appellant/Cross Respondent, which prescribes that in amending a notice of appeal, it is only the grounds of appeal that can be amended. So in deserving cases, the relief claimed can be amended as the Applicant has sought to do in this matter. But is this such a deserving case where the amendment can be allowed for the Applicant to introduce a relief which was not claimed at the lower Court?
The Applicant has rightly submitted that the relief sought to be introduced by the amendment is a statutory relief. That is correct. There are two types of interest usually awarded by a Court, namely pre-judgment interest otherwise known as ‘interest as of right’ or

‘moratory interest’ and post-judgment interest otherwise known as ‘discretionary interest’, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. While pre-judgment interest must be specifically claimed and proved in order to be awarded by a Court, post-judgment interest need not be specifically claimed before it is awarded since it is statutory and the Courts are empowered to award it at its discretion based on the stipulated rates and it need not be proved: HIMMA MERCHANTS LTD vs. ALIYU (1994) 5 NWLR (PT 347) 667, TEXACO OVERSEAS NIGERIA PETROLEUM COMPANY UNLTD vs. PEDMAR NIGERIA LTD (2002) LPELR (3145) 1 at 20-21 and DIAMOND BANK LTD vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 30-31.
The exercise of discretion allowing an application to amend will depend on the peculiar circumstances of the case. The materiality of the amendment must be carefully considered in the diacritical facts of each case. An amendment will not be granted where it will not avert or cure the defect in the proceedings; also where an amendment is not material but is

an inconsistent or useless amendment, it will not be granted. See OYENUGA vs. PROVISIONAL COUNCIL OF THE UNIVERSITY OF IFE (1965) NMLR 9, FIVE STAR INDUSTRIES LTD vs. BANK OF INDUSTRY (2013) LPELR (22081) 1 at 14-16, OKOLO vs. UNION BANK (1999) LPELR (2464) 1 at 12, JESSICA TRADING CO. LTD vs. BENDEL INSURANCE (2003) LPELR (1608) 1 at 15. Put differently, even with the Latinism, ex abundantia cautela, a Court still does not act in vain and will not exercise its discretion if it will be inutile and nothing will be gained in the circumstances:IWEKA vs. SCOA (NIG) LTD (2000) LPELR (1563) 1 at 15, NWANDU vs. EGWUAGU (2014) LPELR (41076) 1 at 12 and USANI vs. INEC (2019) LPELR (48777) 1 (CA). On the state of the law, since the relief for post-judgment interest need not be specifically claimed before it can be awarded, nothing will be achieved by a grant of the amendment to include a relief for the award of post-judgment interest.
There is a further aspect which underscores and buttresses the view I have espoused that the proposed amendment is unnecessary, and it is this. The Applicant has rightly submitted that Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004

[the regnant Rules of Court at the date of the judgment of the lower Court] empowers the lower Court to award post-judgment interest at a rate not less than 10% per annum. Under the general powers of this Court pursuant to Section 15 of the Court of Appeal Act, the Court shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part. So, even though Order 7 Rule 2 of the Court of Appeal Rules, 2016 stipulates that the exact nature of the relief sought should be indicated in a Notice of Appeal; it would not preclude this Court, in the course of entertaining an appeal by way of re-hearing and in exercise of full jurisdiction as though a Court of first instance, from awarding post judgment interest, if deserved, since the law is that being discretionary interest, it is not be specifically claimed or proved.
I derive further fortification from the provisions of Order 4 Rules 3 and 4 and Order 20 Rule 11 (1) of the Court of Appeal Rules, 2016. They read:

ORDER 4
“3 The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to Costs.”
“4 The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
ORDER 20
“11 (1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.”
By the above provisions, this Court has the latitude and amplitude of powers to make any orders

which ought to have been made, including an order for post-judgment interest. Since this power is inherent in the Court, the application to amend the Amended Notice of Cross Appeal to include a relief which it is innate in a Court to award is of no practical utilitarian value. The Court does not act in vain and the proposed amendment being inutile cannot be awarded by the Court.

As I begin to draw the curtain on this Ruling, let me state that I gave due consideration to the preliminary point raised by the Applicant in its written address, to the effect that the Appellant/Cross Respondent’s counsel who deposed to the counter affidavit in opposition to the application did not affix her stamp and seal to the counter affidavit which makes the same defective, relying on NYESOM vs. PETERSIDE (2016) ALL FWLR (PT 842) 1573 and Rule 10 (1) (3) of the Rules of Professional Conduct. The material fact however remains that the Applicant is to succeed on the strength of the materials it furnished and on the basis of which it wants the Court to exercise discretion in its favour. This remains the position irrespective of whether a counter affidavit was filed or

not, or indeed whether the counter affidavit is competent. Any defect in the counter affidavit or absence of a counter affidavit will not willy-nilly lead to the grant of the order sought, if the materials furnished do not support a grant of the application. As has been demonstrated thus far in this Ruling, the materials furnished by the Applicant have not grounded the granting of the application, as the order sought by the Applicant is not one that is granted as a matter of course like a locomotive in the process of locomotion. It is therefore of no consequence and of no moment if the counter affidavit was defective, incompetent or not. The materials relied upon by the Applicant are not such on the basis of which discretion can be exercised its favour.

In a summation, the issue for determination is resolved against the Applicant. The application filed on 8th March 2019 ought not to be granted. The said application is consequently dismissed for lack of merit. The Appellant/Cross Respondent/Respondent is entitled to costs of N100, 000.00.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the erudite leading ruling

delivered by my learned brother: Ugochukwu Anthony Ogakwu, JCA. I endorse, in toto, the reasoning and conclusion in the succinct ruling.

For emphasis, the cross-appellant/applicant’s application orbits around the exercise of judicial discretion of this Court. In this wise, the law compels the applicant to furnish the Court with materials which will serve as the launchpad for a grant of it. The reason is not far-fetched. The law does not grant the Court the unbridled licence to exercise its judicial discretion in vacuo. Curiously, the applicant, in its infinite wisdom, starved this Court of the necessary materials, the desiderata for every application, that will propel this Court to accede to its supplications. This is the bane of the application, It will be, highly, injudicious to grant it.

On this score, coupled with fuller reasons expounded in the exquisite leading ruling, I too, dismiss the application in the manner decreed in it.

BALKISU BELLO ALIYU, J.C.A.: My learned brother UGOCHUKWU ANTHONY OGAKWU JCA, has availed me with the draft of the Ruling just delivered. I agree with the reasoning and conclusion reached therein and adopt

same as mine in dismissing this Appeal for lack of merit.
Appeal dismissed by me. I abide by the order of cost made.

Appearances:

Awonuga, Esq.For Appellant(s)

Tope Adeleye, Esq.For Respondent(s