JACOB v. ETON (2020)

JACOB v. ETON

(2020)LCN/14011(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/153/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

GODWIN RICHARD JACOB APPELANT(S)

And

GODWIN ETON RESPONDENT(S)

RATIO

WHETHER OR NOT ORIGINATING SUMMONS IS IDEAL FOR USE IN ACTIONS INVOLVING MAINLY THE CONSTRUCTION AND INTERPRETATION OF DOCUMENTS

The provisions of Order 3 Rules 5, 6 and 7 of the Akwa Ibom State High Court (Civil Procedure) Rules provides that –“5. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
7. A judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make such orders as he deems fit.”
From the foregoing, an originating summons is ideal for use in actions involving mainly the construction and interpretation of documents. Thus, the use of originating summons is limited to situations specified in the Rules. It is accordingly a method of proceedings and not meant to enlarge the jurisdiction of the Court. See TITILAYO PLASTIC IND. LTD V FAGBOLA (2019) 14 NWLR (prt 1691) 88 at 132 – 133.
The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under deeds, will or other written instrument whereby he will apply by originating summons for determination of any question of construction arising under the instrument for a declaration of interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his right. In other words, facts do not have pride of place in proceedings commenced by originating summons. See FAMFA OIL V A.G. FEDERATION (2003). 18 NWLR (prt 852) 453, INAKOJU V ADELEKE (2007) 4 NWLR (prt 1025) 423 and GOVT. KANO STATE V E.F.C.C (2018) 9 NWLR (prt 1625) 443. PER SHUAIBU, J.C.A.

FACTORS TO DETERMINE WHETHER FACTS IN SUPPORT OF AN ORIGINATING SUMMONS ARE CONTENTIOUS
However, where facts are disputed or to be disputed, or proceedings are or are likely to be hostile, the procedure to adopt in commencing the suit would not be an originating summons procedure as it would be inappropriate to use the said procedure. Similarly, where the affidavit of the plaintiff leaves matters for conjecture, and where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, an originating summons is not appropriate. Even where the facts are not disputed, originating summons should not be used if the proceedings are hostile. See EJURA V IDRIS (2006) 4 NWLR (prt 971) 538, DOHERTY V DOHERTY (1968) NMLR 241 and OYEWUMI V OSUNBADE (2001) FWLR 1919.

In determining whether the facts in support of an originating summons are contentious, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims that will be examined to see if they disclose disputed facts and a hostile nature of the proceedings.

AN EXECUTOR DE SON TORT

It is settled that a person who has not been lawfully appointed an executor or administrator of an estate may by reason of his own intrusion upon the affairs of the estate be treated for some purpose as having assumed the executorship and in law such a person is called an executor de son tort. Thus, the slightest interference with the goods or property of the deceased is sufficient to create such liability and such a person (executor de son tort) is liable to be sued by the rightful representative of the estate or by a creditor to the estate, or by a beneficiary thereof. See UDENSI V MOGBO (1976) LPELR – 3294 (SC). PER SHUAIBU, J.C.A.

THE REQUISITES FOR NOVATION

The requisites for novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishing of the old obligation and the validity of the new one. See NNPC V CLIFCO (NIG) LTD (2011) ALL FWLR (prt 583) 1875. For novation to ensue there must be not only the substitution of some other obligation for the original one, but also the intention or animus novandi. See PHILLIPS V ARCO LTD (1971) LPELR – 2918 (SC) and WESTCOM TECHNOLOGY & ENERGY SERVICES LTD V TRANSCLEAR SA (2018) LPELR – 44794 (CA). PER SHUAIBU, J.C.A.

DEFINITION OF THE TERM”WEIGHT OF EVIDENCE”

The term “weight of evidence is defined in BLACKS LAW DICTIONARY” 9th Edition, Page 1731 as “The persuasiveness of some evidence in comparison with other evidence. In MOGAJI V ODOFIN (1978) LLRN 212 FATAYI WILLIAMS JSC (of blessed memory explained at pages 213 – 214 as follows:-
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts of the other party; the trial judge, after a summary of all the facts must put the two set of facts on an imaginary scale weigh one against the other, and then apply the appropriate law to it. If that law supports it bearing in mind the cause of action, he will then find for the plaintiff, if not the plaintiff’s claim will be dismissed.”
In ascertaining the weight of evidence; the trial Court is enjoined by law to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, sitting at Uyo delivered on 30th November, 2015 in which the lower Court entered judgment in favour of the claimant (now respondent).

On 5th day of May, 2015, respondent, as claimant instituted an action vide an originating summons against the appellant herein in which he called for the determination of the following question:-
“Whether by the failure of the defendant to refund the sum of Eight Million, Seven Hundred Thousand Naira only to the claimant on 31st day of December, 2014 as agreed in writing by the parties on 30/6/2014, the building at No 44 Obio Imo Street, Uyo, belonging to the defendant pursuant to the last will of late Chief (Elder) Richard Effiong Jacob has passed to the claimant absolutely?

Consequent to the above, claimant claimed the following reliefs:
1. A declaration that the building at No 44 Obio Imo Street, Uyo, belonging to the defendant pursuant to the last will of late Chief (Elder) Richard Effiong Jacob has passed to the claimant absolutely

from the 1st day of January, 2015.
2. An Order that the defendant shall forthwith surrender the said building to the claimant.
3. The sum of N500,000.00 as general damages.
4. Cost of this action to be assessed by the council (sic).

The originating summons was supported by a 27 paragraphs affidavit with several exhibits attached with.
The defendant on his part and in response to the originating summons filed a 24 paragraphs counter affidavit also with series of exhibits attached.
On 3/8/2015 claimant filed a reply counter-affidavit and a rejoinder.

After hearing and in a considered judgment delivered on 25/11/2015, learned trial judge held as follows:-
“There is a clear evidence before me that the defendant had in writing agree to pay the sum of N8,700,000.00 to the claimant if the Non-Academic Staff Union of Universities failed to repay the loan she obtained from the claimant. But the claimant and the defendant have agreed that if the Union defaulted in making the repayment. The defendant cannot be heard to say that there was no consideration in the contract or agreements he entered into. The consideration was

the money paid by the claimant to the union. Again the fact that another person also guaranteed to repay the money does not in any manner absolve the defendant from liability. It is absolutely within the discretion of the claimant to proceed against any of the guarantors.”
He continued at pages 54 – 55 of the printed record that:-
“There is evidence before me that the defendant has taken control of the buildings, renovated the property and is living there. The defendant cannot honestly be heard to say that the agreement he signed is not valid because he is not the executor of his father’s will. My view is that the property had since become his own. The executor of the will did not need to be part of the agreement. The agreement between the claimant and the defendant is not invalid because the executor did not endorse. Having taken possession of the property the defendant had the right to place same under the agreement.”
He concluded thus:-
“In compliance with the agreement entered into by the claimant and the defendant on 30/6/2014, I hereby hold that the defend (sic) having failed to refund the sum of

N8,700,000 to the claimant, the claimant is entitled to enforce the terms of the agreement as affecting the defendants property at No 44 Obio Imo Street Uyo as bequeath to the defendant and as contained in his father’s will and testament.”

The appellant was dissatisfied with the judgment and consequently lodged an appeal on 21/2/2016 vide a notice of appeal containing 5 grounds of appeal at pages 57 – 58 of the record.

At the hearing of the appeal on 21/01/2020, Edet T. Etukudo, Esq. adopted and relied on the appellant’s brief filed on 22/5/2017 but deemed filed on 11/01/2018 along with his reply brief filed on 9/5/2018 but deemed on 21/01/2020. Orok Orok Esq., adopted and relied on the respondent’s brief filed on 22/2/2018.

The appellant formulated three issues for the determination of this appeal as follows:-
1. Whether in the circumstances of this case this matter can properly be resolved under originating summons proceeding? (Distilled from grounds 2 and 5).
2. Whether exhibit f, the agreement by the parties on 30th June, 2014 was a validly enforceable agreement and a novation (Distilled from grounds 3 and 4).

Whether the judgment of the learned judge is not against the weight of evidence (Distilled from ground 1).
The respondent adopts the issues formulated by the appellant.
The facts of the case as disclosed in the record of appeal are as follows:-
The appellant vide exhibit F guaranteed to refund to the respondent the sum of N8,700,000.00 (Eight Million, Seven Hundred Thousand Naira) collected by Chairman of Non-Academic Staff Union, University of Uyo within 7 days of default by the beneficiary thereof. To demonstrate his commitment, appellant issued a UBA cheque No 34372586 to the respondent.

When the Union defaulted, the respondent presented the cheque for payment but same was returned unpaid as there was no money in the account. The appellant and representative of the Union thereafter became evasive and stopped picking the respondent’s calls which prompted him reporting the matter to the police Area Command Uyo. Subsequently, the appellant through his counsel agreed vide exhibit E to refund the full value of the friendly loan which was not done. And upon yet another report to the police on the issuance of dud cheque,

appellant was arrested wherein he signed an undertaking to refund the money on 30/5/2014. He also entered into another agreement, exhibit F to pay the loan granted to the Union by 31st December, 2014 or surrender his building at No 44 Obio Imo Street Uyo.

The complaint of the appellant in the first issue is that from the supporting affidavit of the respondent vis-à-vis the agreements in exhibit E and F, there were real violent dispute and thus, the lower Court ought to have called evidence to resolve such conflict.

Learned counsel referred to paragraph 16 of the appellant’s counter affidavit as well as paragraph 21 of the respondent’s reply to contend that the issue as regards payment of N1,275,000.00 by the Union being the original borrower was joined and therefore requires oral evidence to resolve. Likewise in paragraph 19 of the appellant’s counter affidavit, the appellant stated that he paid N2,000,000.00 (Two Million Naira) to the respondent which the respondent blatantly denied in paragraphs 24 and 29 of the reply to the counter affidavit. It was thus submitted that the appropriate thing the trial Court would have done was

to call for oral evidence, the proceeding having become a hostile one.

On his part, the respondent contends that there was no controversy in the facts contained in exhibit F which the Court was called upon to interprete. Thus, parties have agreed in their respective affidavits that the respondent herein gave ten Million Naira loan to the Union out of which the appellant guaranteed to repay 8 Million Naira as evident in exhibit F.

In further contention, learned counsel argued that whatever the appellant claimed the Union paid the respondent was not captured in Exhibit F. He submits that the facts upon which the lower Court was called upon to interprete i.e. Exhibit F was not contentious.

The appellant’s second issue relates to the enforceability of Exhibit F, the agreement entered into between the respondent and the appellant on 30/6/2014. It was contended on behalf of the appellant that the entire transaction was predicated on a contract and for it to be valid in law, all the ingredients notably, offer, acceptance, consideration and intention to create legal relationship must be present. Learned counsel submits that the contract of

30/6/2014 would have been valid since it was under seal but the absence of consideration makes Exhibit F invalid.

Still in argument, learned counsel submits that there was no intention to create legal relationship because same was forced on the parties by the police. Apart from the fact that the contract was executed under the police influence, the property is under the control of the executor of the will who is not the appellant in this case. He referred to UNOKA V AGILI (2008) ALL FWLR (prt 423) 1349 at 1363 to the effect that a beneficiary cannot claim his share in the estate of the deceased testator until the executors have given their consent to the vesting of the property in him. And that it was never established that the executors had granted the appellant any assent vesting part of the deceased estate to him.

In further argument, learned counsel submits that Exhibit F cannot be a novation on the original contract without the consent of all the parties to the original agreement relying on ASHIBUOGWU V ATT. GEN. OF BENDEL STATE (1988) 1 NWLR (prt. 69) 138 at 158 – 159.

In response to the above, the

respondent argued that Exhibit F was only a rescheduling of a debt which the appellant guaranteed and therefore not a contract that attract the requirements of offer, acceptance and the like. That even if it was a contract, the consideration given by the respondent not having been repaid was revived and it subsisted. Thus Exhibit F was valid and enforceable.

It was also argued that exhibit F was not made under duress as the appellant freely negotiated the terms devoid of any influence by the police. He referred to paragraphs 23, 26, 29, 30, 31, 32, 33 and 34 of reply to the counter-affidavit. On the appellant’s allusion that not being the executor of his father’s will he cannot therefore deal with the bequeathed property, learned counsel referred to the averments in paragraphs 3, 4, 5 and 34 of the reply to counter affidavit to contend that the property in question had since become the property of the appellant and hence the executor of the will need not to be a party. Assuming that Exhibit F is a Novation on exhibits C and E, it was submitted that it has satisfied the criteria to so be.

Finally, on the third issue, the appellant argued

that having believed that the appellant had paid N2,000,000.00 to the respondent which the respondent denied, the lower Court ought not have credited the respondent with any truth. He referred to NNAJIOFOR V UKONU (1986) 4 NWLR (pt 36) 505 to the effect that a witness who testifies falsely on matters which are within his knowledge, leaves no room for any judge to credit him with any credibility on issues in contest before him.

On the part of the respondent, it was submitted that the judgment of the lower Court was not against the weight of evidence as the trial Court properly considered the affidavit evidence before coming to the conclusion. And whether the Union had paid 1.2 Million Naira or not, will not relieve the appellant of the quantum of his guarantee.

RESOLUTION:
The first issue questions the mode of commencing the action by respondent as claimant at the lower Court. The action as earlier stated was commenced vide an originating summons.

The provisions of Order 3 Rules 5, 6 and 7 of the Akwa Ibom State High Court (Civil Procedure) Rules provides that –
“5. Any person claiming to be interested under

a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
7. A judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make such orders as he deems fit.”
From the foregoing, an originating summons is ideal for use in actions involving mainly the construction and interpretation of documents. Thus, the use of originating summons is limited to situations specified in the Rules. It is accordingly a method of proceedings and not meant to enlarge the jurisdiction of the Court. See TITILAYO PLASTIC IND. LTD V FAGBOLA (2019) 14 NWLR (prt 1691)

88 at 132 – 133.
The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under deeds, will or other written instrument whereby he will apply by originating summons for determination of any question of construction arising under the instrument for a declaration of interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his right. In other words, facts do not have pride of place in proceedings commenced by originating summons. See FAMFA OIL V A.G. FEDERATION (2003). 18 NWLR (prt 852) 453, INAKOJU V ADELEKE (2007) 4 NWLR (prt 1025) 423 and GOVT. KANO STATE V E.F.C.C (2018) 9 NWLR (prt 1625) 443.
However, where facts are disputed or to be disputed, or proceedings are or are likely to be hostile, the procedure to adopt in commencing the suit would not be an originating summons procedure as

it would be inappropriate to use the said procedure. Similarly, where the affidavit of the plaintiff leaves matters for conjecture, and where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, an originating summons is not appropriate. Even where the facts are not disputed, originating summons should not be used if the proceedings are hostile. See EJURA V IDRIS (2006) 4 NWLR (prt 971) 538, DOHERTY V DOHERTY (1968) NMLR 241 and OYEWUMI V OSUNBADE (2001) FWLR 1919.

I have copiously reproduced the respondent’s claim and reliefs he sought at the lower Court. The claim was for the refund of the friendly loan he advanced to the Non-Academic Staff Union of Universities, University of Uyo Chapter to which the appellant agreed to repay or surrender his building at NO.44

Obio Imo Street, Uyo. In support of the aforesaid claim; respondent in paragraphs 5, 6, 7, 8, 9 and 25 of the affidavit in support of the originating summons averred as follows:-
5. That on 19th February, 2013, I gave a friendly loan (sic) of Ten Million Naira to the Non-Academic Staff Union of Universities, University of Uyo chapter (hereinafter called the Union).
6. That the Union was represented by Monday Esuh (Chairman) and Anietie Archibong (Secretary).
7. That the friendly loan was to be refunded within one month.
8. That the Defendant herein was the surety to the Union and he guaranteed to refund the sum of N8.7 Million Naira to me within 7 days of the default of the Union.
9. That to further assure me of his guarantee, the defendant issued a postdated cheque to me. A photocopy of the cheque is Exhibit C herein.
25. That on 30/6/2014, the defendant entered into an agreement with me to pay the loan granted to the Union by 31st day of December, 2004 or surrender his building at No.44 Obio Imo Street, Uyo to me. The agreement is attached as Exhibit F.

In the instant case, there was no dispute that the appellant guaranteed

the friendly loan in question and that it was as a result of default to refund the loan that the appellant executed Exhibit F. Therefore, the respondent’s claim before the lower Court was for the determination of and construction of Exhibit F. Although parties can seek to raise dispute where none exists or irrelevant to the determination of the issue(s) in controversy between them. In such a case, it is the duty of the Court not to allow its eyes to be blinded by irrelevancies and smokescreen. The primary issue therefore is the consequences of the finding as supported by exhibit F that the appellant being the surety of the friendly loan has agreed to surrender his share of his father’s estate at No. 44 Obio Imo street, Uyo which is the main issue calling for determination in this case. The first issue is accordingly resolved against the appellant.

On the second issue that challenges the validity and enforceability of the agreement exhibit F, the appellant’s main grouse was lack of legal intention and that same was influenced by the police. I do not intend to dissipate a lot of energy in defining the word contract or its essential

ingredients other than to state that a contract is simply a written or spoken agreement that is intended to be enforceable in law. Generally in commercial agreements, it will be presumed that the parties intended to create legal relationship and make a contract. However, the presumption may be rebutted but the burden is very heavy. The appellant first alleges that the agreement was influenced by the police. But a careful perusal of the document shows that both parties duly executed the agreement in the presence of witnesses which include a legal practitioner and thus it was not made under duress. The appellant in the instant case has not been able to rebut the presumption that they intended to create legal relationship through Exhibit F.

It was also contended that the property sought to be surrendered being under the control of the Executor of the will requires the consent of the executor. It is settled that a person who has not been lawfully appointed an executor or administrator of an estate may by reason of his own intrusion upon the affairs of the estate be treated for some purpose as having assumed the executorship and in law such a person is called

an executor de son tort. Thus, the slightest interference with the goods or property of the deceased is sufficient to create such liability and such a person (executor de son tort) is liable to be sued by the rightful representative of the estate or by a creditor to the estate, or by a beneficiary thereof. See UDENSI V MOGBO (1976) LPELR – 3294 (SC).

The question of intrusion upon the affairs of the estate does not arise in view of the averments in paragraphs 3, 4 and 5 of the reply to the counter affidavit thus:
3. That in reaction to paragraph 2 of the counter affidavit, I state that the defendant is the owner of No 44 Obio Imo Street, Uyo bequeathed to him by his later father through a will.
4. That the defendant showed me a copy of the vesting assent of the Executor vesting the property on the defendant.
5. That the defendant had long taken possession of the property at No. 44 Obio Imo Street Uyo, renovated same and lives there.

The learned trial judge had found that the appellant has taken control of the buildings, renovated the property and is living there. A finding or decision of a trial Court on an issue of

fact or law not challenged in an appeal to the Court of Appeal, such a finding or decision rightly or wrongly must not be disturbed for the purposes of the appeal in question. See OMBUGADU V CPC & ORS (2012) LPELR – 8606 (CA).

On whether exhibit F is a novation, novation is the substitution of a new contract for an existing one between the same or different parties. It is also done by mutual agreement and never presumed. The requisites for novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishing of the old obligation and the validity of the new one. See NNPC V CLIFCO (NIG) LTD (2011) ALL FWLR (prt 583) 1875. For novation to ensue there must be not only the substitution of some other obligation for the original one, but also the intention or animus novandi. See PHILLIPS V ARCO LTD (1971) LPELR – 2918 (SC) and WESTCOM TECHNOLOGY & ENERGY SERVICES LTD V TRANSCLEAR SA (2018) LPELR – 44794 (CA).

In the instant case, both the respondent and the lower Court were consistent and none has displayed the inconsistency which

the appellant is alleging. This issue is also resolved against the appellant.

The third and final issue is whether the judgment of the lower court is against the weight of evidence.
The term “weight of evidence is defined in BLACKS LAW DICTIONARY” 9th Edition, Page 1731 as “The persuasiveness of some evidence in comparison with other evidence. In MOGAJI V ODOFIN (1978) LLRN 212 FATAYI WILLIAMS JSC (of blessed memory explained at pages 213 – 214 as follows:-
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts of the other party; the trial judge, after a summary of all the

facts must put the two set of facts on an imaginary scale weigh one against the other, and then apply the appropriate law to it. If that law supports it bearing in mind the cause of action, he will then find for the plaintiff, if not the plaintiff’s claim will be dismissed.”
In ascertaining the weight of evidence; the trial Court is enjoined by law to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party.

The crux of the appellant’s complain here was that having believed the appellant had paid N2,000,000 to the respondent which the latter denied, the learned trial judge ought not have credited the respondent with any truth. I have held elsewhere in this judgment that the respondent’s claim before the lower Court was for the interpretation and or construction of Exhibit F. The liability of the appellant as per Exhibit F was for the sum of Eight Million, Seven Hundred Thousand Naira. Therefore, the lower Court was right in confining and restricting itself to the amount contained in the said Exhibit F and no more. On the strength of the above, the judgment

of the lower Court was not against the weight of evidence and this issue is also resolved against the appellant.

Having resolved all the three issues against the appellant, the destiny of the unmeritorious appeal is that of outright dismissal. Appeal is dismissed.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. SHUAIBU JCA.
I agree with the reasoning and conclusion. I agree that the appeal is unmeritorious and deserves to be dismissed.
I abide with the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother, M. L. SHUAIBU JCA and I agree with the resolution of the issues distilled for determination by the parties.
I have nothing more to add. I also dismiss the appeal for lacking in merit.

Appearances:

Edet T. Etukudo, Esq. For Appellant(s)

I. Ekanem For Respondent(s)