DR. P. O. LAWAL v. ALH. ABDULKADIR ALIYU (2014)

DR. P. O. LAWAL v. ALH. ABDULKADIR ALIYU

(2014)LCN/7447(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 12th day of November, 2014

CA/IL/16/2014

RATIO

COURT: DUTY OF THE COURT; WHETHER IT IS THE DUTY OF THE COURT TO TAKE INTO COGNIZANCE THE COMPREHENSIVE AND UNEQUIVOCAL WORDINGS OF THE AGREEMENT BETWEEN THE PARTIES WHERE THERE IS A DISPUTE BETWEEN PARTIES TO A WRITTEN AGREEMENT

The right of occupancy admitted in this case has proved and justified the appellant’s claim. Section 5(2) of the Land Use Act, which is substantially impari materia with Section 6(3) of the Land Tenure Law of Kwara State that creates a statutory revocation of all existing rights upon the grant of statutory right of occupancy. See Tella v. Usman (2002) 11 NWLR (Pt.677) 98 at 107, paras C – D; Sande v. Abdullahi (1989) 4 NWLR (Pt.116) 387; BFI Group Corp. V. Bureau of Public Ent. (2013) All FWLR (Pt.676) 447 at 466, paras, A-C where it was held thus:
“Where there is a dispute between parties to a written agreement, the only authoritative and legal source of the information for the purpose of resolving same is the written document executed by the parties.”
It is also the duty of the court to take into cognizance the comprehensive and unequivocal wordings of the agreement between the parties. See also Larmie v. Data Processing Maintenance & Services Limited (2005) 18 NWLR (Pt.958) 438; (2006) All FWLR (Pt.296) 775. per. HUSSEIN MUKHTAR, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A DULY EXECUTED DEED OF CONVEYANCE IS SUFFICIENT EVIDENCE TO SUPPORT THE AWARD OF TITLE TO THE BENEFICIARY THEREOF

In a land dispute, where there is a duly executed deed of conveyance it is sufficient evidence to support the award of title to the beneficiary thereof. See Oyebanji V. Lawanson (2008) All FWLR (Pt.438) 238 at 251, para, C. per. HUSSEIN MUKHTAR, J.C.A.

PRACTICE AND PROCEDURE: NON-SUIT; WHEN IS THE EXPRESSION NON-SUIT USED IN CIVIL PROCEEDINGS AND WHEN IS THE ORDER OF NON-SUIT A PROPER EXERCISE OF DISCRETION BY THE COURT

The expression non-suit is used in civil proceedings to describe the judgment of the court in a variety of circumstances. Generally it is the exercise of discretion to relieve the plaintiff who has not totally failed to prove his claim on the merit, but it would, in the circumstances, be unjust and inequitable to dismiss the action. See Dada v Ogunremi & Anor (1967) N.M.L.R. 181. The intention is to enable the plaintiff to relitigate the claim subsequently. The rationale for the exercise of the discretion by the judge is that the defendant is not in any way overreached as a result of the second opportunity given to the plaintiff to prove his case. This issue is whether the order of non-suit was a proper exercise of discretion by the learned trial judge. It is trite that both the grant of declaratory title and an order of non-suit involve the exercise of discretion. But this is a judicial discretion governed by judicious parameters and not to be exercised capriciously. See Nigerian Fishing Co. v. W.N.F Co. (1969) N.M.L.R. 164. Hence the power to order a non-suit should be exercised with utmost restraint and in accordance with well settled principles which have been developed over time. Each case being peculiar could be determined on its own facts. See Mandillas & Karaberis v. Oridota (1972) 2 S.C. 47. In the peculiar circumstances of the instant case, where the non-suit order is based on the misconceived fact that the appellant has failed to adduce evidence on the size of the land in dispute when there is ample documentary and oral evidence, to that effect including the respondent’s own admission, it is a situation that calls for judgment in favour of the claimant/appellant rather than non-suit. per. HUSSEIN MUKHTAR, J.C.A.

JUSTICE

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

DR. P. O. LAWALAppellant(s)

AND

ALH. ABDULKADIR ALIYURespondent(s)

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kwara State, presided over by M. Abdulgafar, J, delivered on 30th, September, 2013, wherein the learned trial judge ordered a non-suit against the claimant/appellant’s suit.

Dissatisfied with that decision, the appellant herein resorted to appealing by filing a notice of appeal premised on the following five grounds:
1. The learned trial judge erred in law in holding that “while I do not agree with Mr. Ibrahim that the application is an abuse of process, I do agree that it amounts to an attempt to overreach the defendant and on that score the application ought not to be granted. I therefore refuse the application of the claimant to admit the Certified True Copy of the conveyance dated 15th July, 1977.”
2. The learned trial judge erred in law in holding that “although I have found that the claimant bought the land from the defendant, there is no evidence before the court of the actual size of the land that the claimant purchased from the dependant since the deed of conveyance is not before the court. Furthermore the case of the defendant is that it was only two plots measuring 100 feet by 100 feet that was sold to claimant.”
3. The learned trial judge erred in law in holding that “in the light of that challenge by the defendant, it becomes important to establish the actual size of the land sold to the claimant. This is more so because the size of the land as contained in the right of occupancy came about as a result of the survey that was undertaken several years after the land was acquired. The conclusion I have therefore come to is that the claimant has not established the actual size of the land he acquired from the defendant.”
4. The learned trial judge erred in law in holding that “the claimant to establish the extent of the land not out of any fault of his but for that of his counsel. The manner Mr. Durowaiye has conducted this case has left much to be desired. He had document vital to his client’s case but he did not tender it properly. He further demonstrated this failure to tender a letter written to his client by the defendants’ solicitor which he claims is crucial to his client’s case.”
5. The learned trial judge erred in law in holding that “having found that the claimant has not established the extent of the land he bought in 1977 as against the land granted by the right of occupancy and seeing that the defendant is not entitled to the Judgment of the court, the appropriate order in the circumstance is an order of non-suit.”

The appellant herein instituted this action at the court below as plaintiff against the respondent as defendant herein seeking for the following reliefs:
1. A declaration that the claimant is the owner of all that parcel of land situate, lying and being of Tanke village along University Road in Ilorin Local Government Area, Kwara State and measured up to about 3342.450 square metres and that the defendant’s family has no subsisting title whatsoever to the said parcel of land.
2. An order of perpetual injunction restraining the defendant’s family by themselves, agents, servants, privies and/or assigns whosoever from trespassing and/or asserting any claim to the said parcels of land of the claimant that is inconsistent with the claimant’s title over the said parcels of land.
3. N2,000,000.00k (Two Million Naira) as general damages.

The respondent, however, filed a counter claim and prayed that the claimant’s suit be dismissed. (See pages 46 to 52 of the record).
Before the commencement of trial, the appellant applied to the trial court to amend his statement of claim to reflect that he would tender a photocopy of the deed of conveyance of the trial because the land office has retained the original document. That application was granted by the court on 26th January 2012, following which an amended statement of claim was filed incorporating an additional statement on oath of the appellant (see pages 94 to 99 of the record).
At the trial, the appellant testified for himself and tendered a copy of the deed of conveyance, the survey plan and the grant of right of occupancy in respect of the land in dispute (see pages 13 to 17 of the record).
The respondent and his son Abdulkadir Bolaji testified at the trial but did not tender any document.

The learned trial judge called for address of counsel on the admissibility of the documents tendered by the appellant, which were duly settled. (See pages 100 to 113 of the record). In its ruling, the subject of this appeal, the court below admitted only the grant of right of occupancy exhibit 1 but rejected the copies of the Deed of Conveyance and the Survey Plan on the ground that they were not certified.
However before the date fixed for judgment, the appellant’s counsel got the deed certified and brought an application, to tender a certified true copy of the said deed of conveyance. Upon that application, the court invited both counsel to address the court on the propriety of non-suiting the appellant’s suit. On 30th September, 2013 the learned trial judge delivered his decision, the subject of this appeal, wherein he refused the appellant’s application to admit the certified true copy of his deed of conveyance and instead made an order of non-suit in respect of the appellant’s action.

Two similar issues were each raised by the appellant and the respondent. However, the appellant’s issues which I consider more apt and devoid of repetition are adapted for the determination of this appeal. The two issues read thus:
1. Whether the honourable trial court is right in its judgment to hold that there is no evidence before the court of the actual size of the land that the claimant purchased from the defendant since the deed of conveyance is not before the court to entitle him to his claim. (Distilled from grounds 1, 2, 3 and 4)
2. Whether the honourable trial court was not wrong to make an order of non-suit after a full trial of this case. (Distilled from ground 5).

Arguing the first issue, the learned counsel for the appellant Segun Durowaiye, Esq. reiterated the well settled principle of law that in a land suit, where a defendant claims to be the owner thereof, title is automatically put in issue and for the plaintiff to succeed, he must establish a better title to the land in dispute than that of the defendant. See Adebyo V. Ighodalo (1996) 5 SCNJ 23 at 45; Amakor V. Obiefuna (1974) 3 SC 67 of 78. The appellant’s claim against the respondent was that the latter had trespassed into former’s land. On his part, the respondent claimed to be the traditional owner of the land in dispute. In the circumstance, title was squarely put in issue and it becomes incumbent on the respondent to prove better title to the land for him to succeed on his counter-claim.
It was submitted, for the appellant, that the respondent had woefully failed to establish better title to the land in dispute. Rather, the appellant deserved to be awarded the land on the preponderance of the evidence. It was submitted that the finding of the trial judge that “there is no evidence before the court of the actual size of the land that the claimant purchased from the defendant since the deed of conveyance is not before the court” radically belies the totality of evidence adduced by the appellant especially as it relates to all the documents tendered by the appellant in the course of trial.
At the beginning of the trial all the title documents on the land in dispute including copies of the deed of conveyance, survey plan and right of occupancy were tendered by the appellant. (See pages 13- 17 of the record).

The learned counsel for appellant argued on the supposition, without conceding, that the deed of conveyance was inadmissible as held by the learned trial judge, there was nothing rendering the other documents attached thereto such as the survey plan inadmissible since it was original requiring no certification.
It was also submitted, for the appellant, that the effect of what the learned trial judge did in the ruling on the documents tendered was an investigation, which is not the responsibility of the court. A judge is an adjudicator, not an investigator. This is because it is not the duty of a court or tribunal to embark upon cloistered Justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in open court. See CAN v. Lamido (2012) All FWLR (Pt. 630) 1320 of pages 1338 – 1339, paras, G – B; Ivienagbor v. Bazuoye (1999) 6 SCNJ 235; (1999) 9 NWLR (Pt.620) 552. Moreover, the appellant was granted leave by the court to amend the statement of claim to plead the copies of the documents tendered, which the trial court admitted as exhibits during the trial proceedings but later rejected same in the judgment.

The appellant had also gone a mile further to obtain and submit a certified true copy of the deed of conveyance through an application to the court to be informally received as evidence in order to do substantial Justice. See Mokwe V. Williams (1997) 11 NWLR (Pt. 528) 309 at 321; Savannah Bank (Nig) Ltd. V. S.I.O. Corporation (2001) 1 NWLR (Pt.693) 194 at 208; Sidi M. Vero Vs. Union Bank of Nig. Ltd. (2000) 5 NWLR (Pt.657) 470 at 478; Aregbesola V. Oyinlola (2009) All FWLR (Pt.472) 1147 (C.A); G & T. Investment Ltd. V. Witt & Bush Ltd. (2011) 8 NWLR (Pt.1250) 500; See also Section 112 of the Evidence Act now Section 105 of Evidence Act 2011.

It was further argued, for the appellant that there being both the original and CTC of the title documents before the court, there was no ground for non-suit. The survey plan, being a professional document, more accurately delineates and describes the land and ought to have been relied upon as evidence on the identity of the land in dispute. See Udechukwu v. Ezemuo (2009) All FWLR (Pt.489) 445 at 454, paras, F-G. The right of occupancy admitted in this case has proved and justified the appellant’s claim. Section 5(2) of the Land Use Act, which is substantially impari materia with Section 6(3) of the Land Tenure Law of Kwara State that creates a statutory revocation of all existing rights upon the grant of statutory right of occupancy. See Tella v. Usman (2002) 11 NWLR (Pt.677) 98 at 107, paras C – D; Sande v. Abdullahi (1989) 4 NWLR (Pt.116) 387; BFI Group Corp. V. Bureau of Public Ent. (2013) All FWLR (Pt.676) 447 at 466, paras, A-C where it was held thus:
“Where there is a dispute between parties to a written agreement, the only authoritative and legal source of the information for the purpose of resolving same is the written document executed by the parties.”
It is also the duty of the court to take into cognizance the comprehensive and unequivocal wordings of the agreement between the parties. See also Larmie v. Data Processing Maintenance & Services Limited (2005) 18 NWLR (Pt.958) 438; (2006) All FWLR (Pt.296) 775.

Responding on the first issue the learned counsel for the respondent Raufu Ibrahim, Esq. contended that the main claim of the appellant before the trial court is for declaration of title to land. A plaintiff succeeds on the strength of his case and not on the weakness of the defence. See Elechi Kalu & 3 Ors vs. Chief Peter Onwuegbu (2008) All FWLR (Pt.435) 1713.
The learned counsel for the respondent observed that the case is rooted in act of purchase evidenced by a deed of conveyance and a grant of right of occupancy. The respondent in his defence joined issues with the appellant on the ground that no land was sold to the appellant in 1977 or at any other time.
The burden of proof lies on the appellant as he who asserts must prove. See, Sections 131 to 133 Evidence Act 2011 and the case of Network Security Ltd vs. Alhaji Umoru Dahiru & 2 Ors (2008) All FWLR (Pt. 419) 415.
It was submitted for the respondent that the appellant, having relied on grant for his root of title, is required to establish his grantor and the extent of the grant for him to succeed in his claims. See Oseni Aboyeji vs. Amusa Momoh & 2 ors (1994) 4 SCNJ 302.

The learned counsel for the respondent submitted that the appellant has neither adduced credible evidence to establish that he bought land from the respondent nor established the actual size of the land in question.
The learned counsel for the respondent argued that the appellant in his pleading and evidence in court admitted that the respondent is in possession and exercising acts of ownership over a large expanse of land except the two plots measured 100 feet x 100 feet upon which the appellant had built and which the respondent agreed he sold out.

Under cross examination, the appellant stated that the land was only marked at the time of purchase but later surveyed upon his application for statutory right of occupancy.
It was further argued that the respondent denied selling the two plots measuring 100 feet x 100 feet directly to the appellant but admitted selling same to the appellant’s father.

The learned trial judge had himself observed in the judgment as follows:
“Mr. Ibrahim points to the contradiction in the evidence of the claimant and his pleadings on the issue of measurement of the land in 1977 which renders the claimant’s evidence unreliable and the only conclusion to draw is that the land was indeed measured in 1977 to be 2 plots of 100ft by 100ft but the claimant in processing his right of occupancy increased it to 3342.450 square metres.”

It behoves the learned trial judge to first find out the total size of the two plots measuring 100 feet by 100 feet each, which by simple mathematical calculation is 10,000 square feet and compare with 3342.45 square meters and bring out the difference, if any. This would have formed the basis upon which the learned trial judge could say whether there is any difference between the original size of the two pieces of land and the size of 3342.45 square meters as reflected in the survey plan. Anything short of this factual finding was nothing better than mere speculation. A court of law ought not to build its decision on mere speculation. In other words, the learned trial judge ought to have stated the total size of the 2 plots in square feet and the convert same from square feet to square meters. Without that geometrical calculation, it was tantamount to speculation to simply say, as the lower court did, that the size was increased. This informs the failure of the learned trial judge to state how much increase was made to the size of the purchased plots.
There was overwhelming evidence before the trial court that the appellant or his further had purchased a piece of land that was clearly marked. The marked area, which splits into two parts by subsequent road construction, each measuring 100ft X 100ft is the land in dispute, on which the appellant enjoyed ownership rights since purchase.

The appellant also tendered copies of three title documents in evidence including the deed of assignment, survey plan and grant of right of occupancy and later tendered certified true copies of the documents. The respondent did not deny executing the deed but alleged that he was deceived to sign for a larger measurement than he sold to the appellant. However, the respondent failed to adduce any evidence on this fact, which led to the failure of his counter claim.

The learned trial judge painstakingly evaluated the evidence adduced by both parties and found that the appellant has proved his case when he observed thus:
“Whereas the claimant’s evidence is that he bought the land in dispute from the defendant in 1977, the evidence of the defendant is that he never sold the land to the claimant but to somebody else. DW2’s evidence is not helpful in this regard as he only knows what the defendant told him that he did not sell the land to the claimant.
I have considered the evidence of the claimant on one side and the DW1 and DW2 on other side. The claimant impresses me as witness of the truth. I am not so impressed by DW1 and DW2 particularly having contradicted themselves on the issue of the plots of land opposite the claimant’s house.
Whereas both DW1 and DW2 maintained under cross examination that the defendant did not grant that land to anybody, both of them in their statements on oath stated clearly the land opposite the claimant’s house were granted to two people with one moulding block while the other comes to clear the land periodically.
I am not in the least impressed by the effort of Mr. Ibrahim to treat the matter as minor discrepancy. To grant land to people and state what purpose persons use the land for is grossly inconsistent with alleging in cross examination that the land was not granted or sold to any person.
Even if one was to be charitable to the defendant and concede that he just allowed the man to mould blocks on the land but did not sell the land to him. What about the other person whom the defendant claims comes to clear the land from time to time. The conclusion I have come to is that DW1 and DW2 are not reliable witnesses.
Consequently I prefer the evidence of the claimant that he personally bought the land in dispute from the defendant and the defendant signed a conveyance dated 15th July, 1977 pursuant to the said transaction.”

Following the foregoing appraisal, the learned trial judge had made himself duty bound to enter judgment for the claimant/appellant who, as the court found has established his claim on preponderance of probabilities. On the other hand, the defendant/respondent’s counter claim ought to have failed since the evidence of DW1 and DW2 were found to be full of inconsistencies, incongruous and unreliable.
However the learned trial judge derailed when he further observed, against the evidence adduced before him, that there was no evidence on the size of the land thus:
“With regard to the inconsistency that Mr. Ibrahim has sought to create with regard to the evidence of claimant, I agree with Mr. Durowaiye that the claimant did not contradict himself. His evidence is that the land was marked when it was sold to him and it was when he applied for survey that the land was measured.
Although I have found that the claimant bought the land from the defendant, there is no evidence before the court of the actual size of the land that the claimant purchased from the defendant since the deed of conveyance is not before the court.
Furthermore the case of the defendant is that it was only two plots measuring 100 feet by 100 feet that was sold to claimant.”
In the light of that challenge by the defendant, it becomes important to establish the actual size of the land sold to the claimant. This is more so because the size of the land as contained in the right of occupancy came about as a result of the survey that was undertaken several years after the land was acquired.
The conclusion I have therefore come to is that the claimant has not established the actual size of the land he acquired from the defendant. The next thing is to consider what order I have to make here. It is for this reason I invited the parties to address me on the desirability of an order for non-suit.”

The learned trial judge has rightly noted in the judgment and agreed with evidence of the appellant that the land was marked at the time of purchase and subsequently measured before the grant of right of occupancy to the appellant thus:
“I agree with Mr. Durowaiye that the claimant did not contradict himself. His evidence is that the land was marked when it was sold to him and it was when he applied for survey that the land was measured.”

The learned trial judge, however, fell headlong into a self manufactured confusion when he concluded thus:
“The conclusion I have therefore come to is that the claimant has not established the actual size of the land he acquired from the defendant. The next thing is to consider what order I have to make here. It is for this reason I invited the parties to address me on the desirability of an order for non-suit.”

On the face of the abundant evidence on the size of the disputed land including that of the respondent’s own admission, to say that the appellant had failed to establish the size of the land is completely out of the question.
The foregoing analysis leads to the irresistible resolution of issue one in the negative and in favour of the appellant.

ISSUE TWO
Whether the honourable trial court was not wrong to make an order of non-suit after a full trial of this case.

The learned counsel for the appellant noted that the principles of law on non-suit in a civil action is analogous to that of a no case submission in a criminal case. In criminal cases, where the charge or information does not disclose the necessary elements of the offence, the defence counsel may make a no case submission. This connotes that prima facie, there is no offence known to law upon which the accused may stand trial. Conversely, the principle of law of non-suit in civil cases is triggered by a justiciable claim that is not supported by evidence. If, as in this case, after evidence that has been adduced by both parties the plaintiff fails to prove his case, the proper order is that of dismissal and not a non-suit”. See Osuji .v. Ekeocha (2009) All FWLR (Pt.490) 626 @ 662, paras, E – G; Gold v. Oseseren (1970) 1 All NLR 135; Okoye V. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501; Esuku V. Leko (1994) 4 NWLR (Pt.340) 625; Oloriode V. Oyebi (1984) 1 SCNLR 390.

It was submitted for the appellant that once parties have concluded their evidence before the court, non-suit is not proper as it is against the weight of evidence.
The learned counsel for the respondent did not argue differently when he submitted that failure of a party, that rely on grant, to prove the extent of his grant is fatal to his claim and in such circumstance the claim is liable to be dismissed. See Oseni Aboyeji vs. Amusa Momoh & Ors. (Supra). He also cited the decision of this court in UBN Plc. vs. Chief Dappa Biriye (2000) 12 NWLR (Pt.682) 588 at 592 where it was held thus:
“Non-suit is a decision against the Plaintiff because of his failure to show that he has a valid case…This procedure as a form of judgment has now been abolished. Nowadays where a court conceives that…the Plaintiff has failed to impress the court by his failure to prove his case on satisfactory evidence the action is always dismissed. Non-suit is injudicious in that it is a system where a plaintiff who has totally failed to convince the court that he is entitled to judgment is unwillingly given another chance to institute another action in court.”

This issue is whether the order of non-suit was a proper exercise of discretion by the learned trial judge. It is trite that both the grant of declaratory title and an order of non-suit involve the exercise of discretion. But this is a judicial discretion governed by judicious parameters and not to be exercised capriciously. See Nigerian Fishing Co. v. W.N.F Co. (1969) N.M.L.R. 164. Hence the power to order a non-suit should be exercised with utmost restraint and in accordance with well settled principles which have been developed over time. Each case being peculiar could be determined on its own facts. See Mandillas & Karaberis v. Oridota (1972) 2 S.C. 47. In the peculiar circumstances of the instant case, where the non-suit order is based on the misconceived fact that the appellant has failed to adduce evidence on the size of the land in dispute when there is ample documentary and oral evidence, to that effect including the respondent’s own admission, it is a situation that calls for judgment in favour of the claimant/appellant rather than non-suit.

Accordingly, the second issue is resolved in the affirmative and in favour of the appellant. The resolutions of both issues for determination in favour of the appellant speak volumes of the meritorious nature of this appeal. Accordingly, the appeal succeeds perforce and is allowed.
Accordingly the order of non-suit made by the lower court in the judgment delivered on 30th September 2013 is hereby set aside. In the stead thereof judgment is entered for the claimant/appellant in respect of his claims 1 and 2 as per the amended statement of claim (at pages 94 to 98 of the record of appeal). The appellant is accordingly granted the following reliefs:
1. A declaration that the claimant/appellant is the owner of the right of occupancy in respect of the parcels of land situate of Tanke village along University Road in Ilorin Local Government Area, Kwara State measuring approximately 3342.45 square meters and that the defendant/respondent’s family has no subsisting title whatsoever to the said parcels of land.
2. It is hereby ordered that the defendant/respondent’s family be and are hereby perpetually restrained, by themselves, agents, servants, privies and/or assigns whosoever from trespassing and/or asserting any claim to the said parcels of land inconsistent with the claimant/appellant’s title thereto.

Claim number 3, though tagged as general damages, is by the amount claimed special in nature, which has to be proved strictly to entitle the appellant to such an award. The appellant must lead evidence to prove the special damages he has suffered otherwise he could not be entitled, for the mere asking, to be awarded special damages in the guise of “general damages”. I, however, award the sum of One Hundred Thousand Naira (N100,000.00) as general damages and a further sum Fifty Thousand Naira (N50,000. 00) as cost to the claimant/appellant against the defendant/respondent.

CHIDI NWAOMA UWA, J.C.A.: I agree with the Judgment delivered by my learned brother, Hussein Mukhtar, JCA, and abide by the consequential orders made therein.

MUSA HASSAN ALKALI, J.C.A.: I have read in draft the judgment delivered by my learned brother, my Lord Justice Hussein Mukhtar JCA, with which I entirely agree. For the reasons so eloquently and comprehensively set out, I too set aside the order of non-suit made in the judgment delivered on 30th September, 2013.

I abide by the order of (N100,000) One Hundred Thousand naira cost against the defendant/respondent proposed in the aforesaid judgment.

Appearances

Segun Durowaiye, Esq.For Appellant

AND

Abdul-Raufu Ibrahim, EsqFor Respondent