NATIONAL TRUCKS MANUFACTURERS LTD v. FOBUR
(2022)LCN/17181(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, May 06, 2022
CA/K/350/2018
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
NATIONAL TRUCKS MANUFACTURERS LTD APPELANT(S)
And
DR. YAKUBU FOBUR ESQ RESPONDENT(S)
RATIO
WHETHER OR NOT RULES OF COURT MUST BE OBEYED
We have stated several times that the Rules of Court are meant to help the Court to do justice to parties, not to arm-twist or suffocate justice by resort to undue technicalities. See INEC Vs Mbawike & Ors (2017) LPELR – 41623 (CA), where we said:
“We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said: “Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passing earth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130, Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1. See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA), where we held: “… The Rules of Court are hand maids of the law to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade Vs Spring Bank Plc (2013) LPELR – 20763; (2014) 4 NWLR (pt.1396) 93, Ugba Vs Suswam and Ors (2012) LPELR 8635; (2014) All FWLR (pt.723)1886. PER MBABA, J.C.A.
THE POSITION OF LAW ON THE OBJECT OF THE COURT
The basic principle of law is that, it is the object of the Court to decide the rights of the parties and not to punish them for mistakes they, make, in the litigation process, particularly, when the mistakes are real mistakes. It is a known fact that blunders must take place in the litigation process, because blunders are inevitable; it is not fair, in appropriate cases, to make a party in blunder to incur the wrath of the law at the expense of hearing the merits of the case.” The above profound liberal statement of the law, by my lord (even in election related matters) were not disturbed on appeal (ACN V LAMIDO & ORS (2012) LPELR 7825 (SC)), and in my opinion, is unassailable, and tends to agree with the provisions of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010, as amended, to the effect that: “Non-compliance with any of the provisions of this schedule, or with a rule of practice, for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit or just.” See also Labour Party vs Bello and Ors (2016) LPELR – 40848 CA, ratio 7, on the worrisome use of technicalities to defeat justice.”
See also Long-John & Ors Vs Blakk & Ors (1998) LPELR – 1791 (SC), where the Supreme Court held:
“It is undesirable to give effect to rules which will merely enable one party to score, not a victory on the merits, but a technical knockout at the expense of a hearing on the merits. See University of Lagos Vs Aigoro (1985) 1 NWLR (Pt.1) 143 and Nishizawa Ltd Vs Jethwani (1984) 12 SC 234 at 286, Per Ogwuegbu, JSC. PER MBABA, J.C.A.
THE POSITION OF LAW ON WHEN A RIGHT OF ACTION AGAINST A GUARNTOR IS SAID TO ARISE
There was indisputable evidence that the said Guarantor, Alhaji M.D. Yusuf, was deceased. Even if he was alive and/or his estate could handle the debt obligation, I do not see any law that forbids the Bank (Creditor) from taking steps to recover the debt/loan from the debtor (Appellant), who was the primary contractual party to the loan agreement. See the case of African Insurance Development Company Vs Nigeria Liquified Natural Gas Ltd (2000) 4 NWLR (Pt.653) 494, Fortune International Bank Ltd Vs Pegasus Trading Office (2004) 4 NWLR (Pt.863) 369, Auto Import Export Vs Adebayo (2005), on the principle that the right to go after a guarantor, in a contract, can be exercised by the creditor, separately, from and/or, jointly with the debtor in a suit. It is not for the debtor to teleguide the Creditor on how (or who) to sue, first, to recover his money! A creditor can elect to sue the debtor or the guarantor of the loan, for recovery of the debt, or both of them, jointly. See the case of AIDC Vs NLNG Ltd (2000) LPELR – 210 (SC), where it was held:
“The principle is now well established that the right of action against a guarantor arises on a default by the principal debtor and not on a finding of liability against such debtor. The law is well stated in Andrews & Millet, Law of Guarantees, 1st edn. at pages 162-163 thus: “The fact that the obligations of the guarantor arise only when the principal has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal or from the surety, or give notice to the surety, before the creditor can proceed against the surety. Nor does he have to commence proceedings against the principal, whether criminal or civil, unless there is an express term in the contract requiring him to do so.” Per AYOOLA, JSC. PER MBABA, J.C.A.
THE POSITION OF LAW ON ABUSE OF COURT PROCESS
The law against abuse of the Court process has always been stated and Counsel warned against forum shopping and duplication of cases in Courts. See the case of Nwosu Vs PDP & Ors (2018) LPELR – 44386 (SC), where it was held:
“What is an abuse of Court process? First, it is settled that the employment of judicial process is only regarded as an abuse, when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice.”
The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC. In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means – Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive.” Per AUGIE, JSC. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of the Federal High Court in Suit No. FHC/KN/CS/120/2017, delivered on 22/3/2018 by Hon. Justice J.K. Dagat, wherein the learned trial Judge dismissed the claim of the Plaintiff.
At the lower Court, the Applicant (now Respondent) by Originating Motion sought the Court to determine the following questions and accompanying reliefs:
(1) Whether by the provisions of Section 22(1) of the Land Use Act, the consent to a mortgage upon which the deeds of mortgage agreements between the Plaintiff and the 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State was made is not invalid and therefore null and void.
(2) Whether by the provisions of Section 26 of the Land Use Act, the deeds of mortgage agreements between the Plaintiff and the 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State are not invalid and therefore null and void by reason of the invalidity of consent to mortgage.
(3) Whether by the combined effects of the provisions of Sections 22 and 26 of the Land Use Act, the Defendant can exercise any right from the purported deeds of mortgage agreements between the Plaintiff and the 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State.
(4) Whether by the combined effects of the provisions of Sections 22 and 26 of the Land Use Act, the purported appointment of the 2nd Defendant by the 1st Defendant as receiver of the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State pursuant to the said purported deeds of mortgage agreement is not invalid and therefore null and void.
(5) Whether the 1st Defendant can enforce the loan agreement between the 1st Defendant and the Plaintiff against the Plaintiff or the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State in the face of the subsisting deed of irrevocable personal guarantee on the transaction.
The Plaintiff claims the following reliefs:
(1) A declaration that by the provisions of Section 22(1) of the Land Use Act the consent to mortgage upon which the deeds of mortgage agreements between the Plaintiff and the 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State was made is invalid and therefore null and void.
(2) A declaration that by the provisions of Section 26 of the Land Use Act the deeds of mortgage agreements between the Plaintiff and the 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State are not invalid and therefore null and void by reason of the invalidity of consent to mortgage.
(3) A declaration that by the combined effects of the provisions of Sections 22 and 26 of the Land Use Act the Defendant cannot exercise any right from the purported deeds of mortgage agreements between the Plaintiff and 1st Defendant over the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State.
(4) A declaration that by the combined effects of the provisions of Sections 22 and 26 of the Land Use Act the purported appointment of the 2nd Defendant by the 1st Defendant as receiver of the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State pursuant to the said purported deeds of mortgage agreements is invalid and therefore null and void.
(5) A declaration that the 1st Defendant cannot enforce the loan agreement between the 1st Defendant and the Plaintiff against the Plaintiff or the Plaintiff’s property situate at Kilometer 10, Zaria Road Naibawa Kano City in Kumbotso Local Government Area of Kano State in the face of the subsisting deed of irrevocable personal guarantee on the transaction.
(6) And Order setting aside the purported consent to mortgage upon which the deed of mortgage between the 1st Defendant and the Plaintiff was made.
(7) An Order setting aside the purported appointment of the 2nd Defendant by the 1st Defendant as receiver of the Plaintiff’s said property and any other step or steps taken by the Defendants pursuant to the deed of mortgage between the 1st Defendant and the Plaintiff.
(8) An Order that the 1st Defendant recover the sums standing unpaid in its loan transaction by enforcement of the personal guarantee between it and the guarantor of the transaction.
(9) An Order of perpetual injunction restraining the 1st Defendant either by itself, servant, agents and or any person or persons acting for or on its instruction from any further act of harassment of the Plaintiff on account of the loan transaction between the Plaintiff and the Defendant.
The Appellant (as Respondent) had filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection and a counter-affidavit in opposition to the claim. It also filed a reply on points of law on the preliminary objection.
The Respondent (as Applicant) had filed a counter-affidavit against Appellant’s preliminary objection and a further affidavit in support of his application.
The trial Court heard the preliminary objection and the main application and gave its ruling on the preliminary objection in the main judgment as per Pages 418 to 437 of the Records of Appeal. It held as follows on the preliminary objection:
“I have carefully considered the processes filed in respect of the Notice of Preliminary Objection both in support and in opposition. In my view there is only one issue for determination which is:
“Whether the Applicant’s Suit was property commenced in accordance with the law.”
The determination of the sole Issue for determination revolves around the interpretation of the Provision of Rule 2(1) vis-à-vis Rule 18 of the Companies Proceeding Rules. As pointed out earlier in this judgment, the originating application was filed exparte and it was the Honourable Court that ordered the present Respondent to be served which order was carried out. The substantive application is for an order giving directions to the receiver to take possession of the housing estate of the Respondent for the purpose of carrying out receivership activities, and for the Police to provide necessary protection to the Receiver in the process.
Respondent placed heavy weather on Rule 2(1) of the Companies Proceeding Rules to the effect that the suit can only be commenced by originating summons and not by motion. Rule 2(1) referred to provides thus:
“Except in the case of the application mentioned in Rules 5 and 6 of these Rules and applications made in proceedings relating to the winding up of companies, every application under the Act shall be made by Originating Summons.”
The present application does not fall within the exceptions in the rule which relates to winding up proceedings by way of a petition.
Therefore, the proper mode of commencement ought to be by way of originating summons as prescribed by the rules, the question is does it render the entire Suit incompetent by reason of non-compliance?
Rule 18 of the Companies Proceedings Rules provides, thus:
“No proceedings under the Act shall be invalidated by reason only that these Rules are not fully complied with or in respect of any other irregularity, unless the Court before which an objection is made to the proceedings is of the view that the injustice cannot be remedied by any order of the Court.”
I am of the firm view that the intendment of Rule 18 is to cure any defect relating to non-compliance with the Rules including Rule 2(1) dealing with mode of commencement of actions. This is so because the attitude of Courts in the present day is to do substantial justice in cases before them and not to be clogged by undue technicalities.
Rules of Court do not confer or inhibit jurisdiction. They are rules of procedure and merely regulate the exercise of a jurisdiction conferred… See 421 – 423 of the Records.
On the substantive case, the trial Court held:
“Now, the facts of the case show that around 2006 the Respondent (National Trucks Manufacturers Ltd) requested and was granted multiple credit/loan facilities by the Bank of Industry Ltd which facilities were enhanced in 2010. The multiple credit/loan facilities were secured by Legal Mortgage Agreements dated 26th September, 2006 and 6th January, 2011. The facilities were also secured by the personal guarantee of late Alhaji M.D. Yusuf on behalf of the Respondents. That since the disbursement of the facilities, the Respondent has serially refused/neglected to service the facilities as agreed. On 14th January, 2015, the Bank of Industry wrote a demand letter to the Respondent for payment of outstanding indebtedness which the Respondent has failed to service and the debit balance outstanding against the Respondent as at 14th February, 2017 stood at N1,036,394,082.71 (One Billion, Thirty-Six Million, Three Hundred and Ninety-Four Thousand, Eighty-Two Naira, Seventy-One Kobo) only. The Bank then invoked clause 30 of the agreement to appoint Dr. Yakubu Fobur Esq (the present Applicant) as receiver for the security of the facilities i.e. the Housing Estate lying and situated at Km. 10 Zaria Road, Naibawa Kano to recover the outstanding debt.
Respondent in its counter-affidavit did not deny its indebtedness to the Bank of Industry, rather the Respondent confirmed that it was granted loan facilities by the Bank of Industry between 2006 and 2010 and deed of legal mortgage agreements were executed over the Respondent’s landed property at Km. 10 Zaria Road, Naibawa Kano City.
By clause 30 of the Loan and Mortgage Agreement dated 26th September, 2006, the receiver so appointed is empowered among other things to take possession of the mortgage property, manage, sell, let, lease the property etc. What the Applicant is praying for in the present application is line with the powers given to the receiver under the loan and Mortgage Agreement that was freely entered (sic) into by the parties in the agreement.
Flowing from the above, Section 391 of the Companies and Allied Matters Act has further cemented the powers of a receiver to apply to Court for direction in relation to matters arising in connection with the performance of his functions, hence the present application by the Receiver. Upon the appointment of the receiver, the company ceases to have any right to deal with the assets of the company. Its rights thereto are suspended and the assets belonging to the debtor company now comes under the general control of the Receiver. See Inter-Contractors Nig Ltd Vs N.P.F.M.B. (1988) 2 NWLR (Pt.76) 280; and UBN Ltd Vs Tropic Foods Ltd (1992) 3 NWLR (Pt.228) 231.
The law is clear from the provision of Section 390 and 391 of CAMA that a receiver or manager of any property or undertaking of a company may be appointed out of Court under the power contained in any instrument and may apply to the Court for direction in relation to any particular matter arising in connection with the performance of his function. See UNIBIZ (Nig) Ltd Vs CBCL Ltd (2003) 6 NWLR (Pt.816) 402 and WEMA Bank Plc Vs Onafowikan (2005) 6 NWLR (Pt.921) 410… I hold that the present application has merit and prayers 1 and 2 on the face of the motion paper dated 19th June, 2017 are hereby granted as prayed.” (See Pages 434 – 436 of the Records of Appeal).
That is the decision Appellant appealed against as per the Notice and grounds of Appeal on Pages 438 to 441 of the Records of Appeal, with 7 grounds of Appeal. Appellant filed its brief of arguments on 8/10/2018 which was deemed duly filed on 15/10/2018. Appellant distilled 4 Issues for the determination of the Appeal as follows:
(1) Whether the provisions of Rule 2(1) of the Companies Proceedings Rules is rendered inoperative by the provisions of Rule 18 of the same rule so as to empower the Court to dispense with the issue of mode of commencement of action so as to make the suit of the respondent competent as constituted before the trial Court and the trial Court with jurisdiction to hear and determine the Suit. (Grounds 1, 2, 3 and 4)
(2) Whether an approval of an application for consent of the governor to mortgage signed by the commissioner for land amounts to governor’s consent under Section 22(1) of the Land Use Act. (Ground 5)
(3) Whether the respondent can have recourse to the appellant on the loan transaction between the appellant and the respondent in the face of the irrevocable deed of guarantee in favour of the appellant on the loan. (Ground 6)
(4) Whether the entire judgment of the trial Court is not against the weight of evidence adduced at the trial. (Ground 7)
The Respondent filed Amended Brief of Argument on 17/6/2021 which was deemed duly filed on the 1/11/2021. The Respondent donated 3 Issues for the determination of the Appeal as follows:
(1) Whether or not, Rule 18 of the Companies Proceedings Rules, 2000 cured the irregularity in the commencement of the originating process by the respondent which was commended by way of Motion Ex-parte than by an Ex-parte originating summons under Rule 2(1) before the trial Court. (Grounds 1, 2, 3 and 4).
(2) Whether or not the context of this case, there is a valid and subsisting Legal Mortgage legally consented to by the relevant authority capable of being enforced against the Appellant. (Ground 5)
(3) Whether or not, in the circumstances of this case, the mortgage (sic) i.e. the Bank of Industry Ltd, can enforce the loan and Mortgage Agreement against the appellant in view of Deed of Irrevocable Personal Guarantee by the late Alhaji M.D. Yusuf. (Grounds 6 and 7)
The Respondent also filed two Notices of Cross-Appeal on 1/4/19 and 25/3/19, respectively, and Cross-Appellant’s Briefs on the said dates – 1/4/19 and 25/3/19, but appeared to have abandoned the same, as the Respondent, who appeared in person, at the hearing of the Appeal, failed to call attention of the Court to the said Cross-Appeal, and did not argue any of the said Notices of Cross-Appeal or Briefs. Rather, the Respondent called our attention to Appeal No. CA/K/89/2019, delivered by this Court on 31/3/2021, between Appellant herein (NATIONAL TRUCKS MANUFACTURERS LTD) and (1) BANK OF INDUSTRY LTD and (2) DR. YAKUBU FOBUR ESQ, on the same subject matter, heard and determined by Kano State High Court, presided over by Dije Abdu Aboki J. Counsel said that this Court (Appeal Court) had already determined the issues in this Appeal!
Appellant filed a reply brief on 13/3/2019.
Arguing the appeal, on 14/3/2022, Appellant’s Counsel, Edoja John Onema Esq., who settled the Appellant’s brief, on issue 1, submitted that the provisions of Rule 2(1) of the Companies Proceedings Rules was/is not rendered inoperative by the provisions of Rule 18 of the same Rule, and the Court is not empowered to dispense with the issue of mode of commencement of action, and for this reason, the suit of the Respondent was incompetent, as constituted before the trial Court, and that the trial Court had no jurisdiction to hear and determine the suit. Counsel argued that, since the statute had provided for the mode of commencing the action, failure to comply with that mode of commencing the action makes the suit invalid and robs the Court of jurisdiction to entertain the suit. He relied on Efiok Vs The Government of Cross River State & Ors (2011) 10 ALL FWLR (Pt.) 1993 at 1994, where it was held:
“Where there is non-compliance with the stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the precondition provision of the relevant law is, incompetent and a Court of law is for that reason, lacking in jurisdictional power to entertain it. In the instant case, the Plaintiff commenced an action without compliance with the precondition therefore the trial Court dismissed the action.”
He also relied on Alawiye Vs Ogunsanya (2012) 10 – 12 NSCQLR Vol. 52 (Pt.1) 186.
Counsel said that the discretion given to the trial Court by Rule 18 of the Companies Proceedings Rule does not extend to conditions precedent to commencement of an action, that compliance with Rule 2(1) of the Companies Proceedings Rules is condition precedent to the assumption of jurisdiction by the Court.
On issue 2, Counsel said that the approval of an application for consent of the governor to mortgage signed by the Commissioner for Lands, does not amount to Governor’s consent under the Section 22(1) of the Land Use Act, which states:
“It shall not be lawful for a holder of a statutory right of occupancy granted by the governor to alienate his right of occupancy or any part thereof, by assignment, mortgage, transfer of possession, sublease or otherwise, howsoever, without the consent of the governor, first had and obtained.”
Counsel relied on the case of Olalomi Industries Ltd Vs N.I.D. Bank Ltd (2009) 39 NSCQR 240, to the effect that the Apex Court held that the signature of an Acting Chief Lands Officer on the approval letter for mortgage was not an act done in substantial compliance with the requirement of the Land Use Act, which provides for the signature of governor or his delegate – the Commissioner for Lands.
On issue 3, Counsel said the Respondent cannot enforce the loan agreement between his appointor and the Appellant against Appellant or his property, in the face of the subsisting deed of irrevocable personal guarantee on the transaction, by which reason the appointment of the respondent was invalid and the application incompetent. He founded on clause where the guarantor said:
“That I hereby irrevocably, absolutely and unconditionally guarantee (as primary obligor and not as surety merely) the due and punctual repayment of all principal monies relating to the multiple facilities, charges, expenses and any or all other monies which may from time to time become payable by the borrower under the loan agreement (herein after referred to as “The Guaranteed Sum.”
Counsel said that, with the above personal guarantee, subsisting in favour of Appellant on the facilities, the Respondent cannot have any recourse to the Appellant in any event of a default by the Appellant. He relied on the case of Auto Import Export Vs Adebayo (2005) 19 NWLR (Pt.959) 44 ratio 9, to the effect that the creditor is now entitled to proceed against the guarantor, in the event of default by the debtor.
On issue 4, Counsel said the judgment of the trial Court was against the weight of evidence adduced at the trial; that the totality of the Respondent’s application was founded on his Exhibits YFC1 and YFC2, all attached to Respondent’s Further Affidavit. Counsel said that the YFC1 was said to be the approval/consent by Hon. Commissioner, and the YFC2, the conveyance of the Commissioner’s approval/consent, he said that Exhibit YFC1 is a file copy of the approval of application for consent and Exhibit YFC2, alleged to be the conveyance of the approval of the application, contained in Exhibit YFC1, he said that Exhibit YFC1 was made in August, 2005 and YFC2 in September, 2006, that Exhibit YFC1 did not contain any fee or conditions, while Exhibit YFC2 contained fee and time frame within which to comply with the conditions contained in that document, he said that a close perusal of Exhibit YFC2 shows it is not referring to Exhibit YFC1.
He argued again that by clauses 1 and 2 of the Agreement – deed of guarantee – the guarantor was the primary obligor and the party to which demand must be made, in event of any default by the debtor, that there was no evidence of any demand made on the guarantor pursuant to the clause 2, that failure of the Respondent to make the demand was fatal to the claim and the application was speculation, Counsel added that the failure to join the said guarantor in the suit was also fatal. He noted that the trial Court had ordered, on 6/7/2017, that Appellant and its guarantor be put on notice, but argued that the guarantor should have been join as party to be served with processes; that that failure made the suit incompetent. He said that even if the guarantor had died as stated by Respondent, that the deed and personal guarantee was still subsisting.
He urged us to allow the appeal.
Responding, the Respondent, on Issue 1, said that the Rule 2(1) of the Companies Proceedings Rules, 2000, was qualified by Rule 18 of the same Rules. He relied on the case of Virgin Technical Ltd Vs Mohammed (2009) 11 NWLR (Pt.1151) 156, and submitted that the Rule 18 had cured any default in the made/manner of commencing the suit, he said that the mode/form of commencement of any proceeding, under the Act, was of no moment, unless the Court that heard the case was of the view that injustice complained of cannot be remedied by any order of Court in the circumstance. Again, he said such non-compliance, as to form or mode, amounts to irregularity, which can be remedied; that irregularity, does not vitiate a proceeding, where miscarriage of justice is not occasioned to the party complaining. He relied on the case of FAMFA OIL VS A.G. Federation (2003) 18 NWLR (Pt.852) 453, Duke Vs Akppabuyo L.G. (2005) 19 NWLR (Pt.959) 130.
On issue 2, whether there was valid subsisting legally acceptable consent by the relevant authority, capable of being enforced, Counsel answered in the affirmative. He argued that the Hon. Commissioner for lands, as a delegate of the Governor, on 10/10/2005 approved/signed the consent for the mortgage, on behalf of the Governor of Kano State, pursuant to the Kano State Legal Notice No.1, 1999, titled “Delegation of Powers (Land Use Matters Instrument) of February 11, 1999” which came into force on August 12, 1998. Counsel further said that the State Governor delegated his Powers under Section 45(1) of the Lands Use Act, Cap 15 Laws of the Federation, 2004, to Hon. Commissioner in charge of Ministry of Land and Physical Planning, as stated above.
He urged us to take judicial notice of the law, and as shown in Exhibit YFC2, whereof the Hon. Commissioner for Land granted the consent. Thus, Counsel said Section 22(1) of the Land Use Act was substantially complied with. He relied on the case of Babatunde Vs Bank of the North Ltd (2011) 18 NWLR (Pt.1279) 738. He said the case of Olalomi Industries Ltd Vs NIDB Ltd was not applicable to this case.
On issue 3, Respondent said the mortgagee (Bank of Industry Ltd) was entitled to enforce the loan agreement against Appellant, that the deed of legal mortgage between the parties therein constitute a primary contract, inter parties, which creates rights and obligations between the parties, which also stated how and when to enforce same, in case of default. He relied on Majekodunmi Vs Co-operative Bank Ltd (1997) 10 NWLR (Pt.524) 128, Awojuabagbe Light Industries Ltd Vs Chinukwe (1995) 4 NWLR (Pt.390) 379.
Counsel said that a guarantee, on the other hand, is separate contract between a lender and a 3rd party (guarantor) who undertakes to make good the obligation of the debtor, if he (debtor) defaults. Counsel cited cases, including A.I.D.C. Vs Nigeria Liquified Natural Gas Ltd (2000) 4 NWLR (Pt.653) 494, Fortune International Bank Ltd Vs Pegasus Trading Office (2004) 4 NWLR (Pt.863) 396 and Auto Import Export Vs Adebayo (2005) 19 NWLR (Pt.959) 39, in support of that legal position.
Counsel said that the Bank was entitled to recover the loan/debt from the Appellant or from the guarantor, and it had the right to elect who to go against. He relied on the case of African Insurance Dev. Company Vs Nigeria Liquified Natural Gas Ltd (supra), and textbooks – Andrew & Millet 1Q Edition, Law of Guarantee, P.1163; Sweets Maxwells Laws of Loan & Borrowing by Robert Burges (1993) Ed. P. 4075.
Counsel urged us to resolve the issues against Appellant and to dismiss the appeal.
RESOLUTION OF ISSUES
I think Appellant’s four issues for determination of this appeal can be summarized into two (2) namely:
(1) Whether the trial Court was right to hold that the failure of the Respondent to comply with Rule 2(1) of the Rules of Companies Proceedings Rules 1992 was not fatal to the competence of the Suit, in view of the provision of rule 18 of the same Rules of Companies Proceedings?
(2) Whether the trial Court was right to hold that there was valid subsisting legally enforceable Loan/Mortgage Agreement between Appellant and Bank of Industry Ltd, which warranted the appointment of the Respondent as Receiver of the property of the Appellant, despite the personal guarantee by late Alh. M.D. Yusuf?
I believe the issue 1, above, agrees with Appellant’s issue 1 and Respondent’s issue 1, relating to the ruling on the preliminary objection by the Appellant at the trial. The issue 2 is on the substance of the case and summarizes the issues 2 to 4 by Appellant, and the issues 2 and 3 by the Respondent.
Appellant had insisted on the need to comply with the provisions of Rule 2(1) of the Companies Proceedings Rules, which requires every application made under the Companies Act to be made by Originating Summons, except the applications mentioned in Rules 5 and 6, and applications made in proceedings, relating to winding up of Companies. Of course, the harsh effect of the said Rule 2(1) of non-compliance, appears to be toned-down by the provisions of Rule 18 of the same Rules of Companies Proceedings, which says:
“No proceeding under the Act shall be invalidated by reason only that these rules are not fully complied with or in respect of any other irregularity, unless the Court before which an objection is made to the proceeding, is of the view that the injustice cannot be remedied by any order of that Court.”
I think the above provision of Rule 18 came handy, being necessary to discourage undue technicality in the application of the Rule 2(1), to defeat or mock the essence of justice of each given case. And so, the trial Court is empowered to consider any application or objection raised against the mode of commencement of a suit, liberally, and is enjoined to refuse invalidating any application or suit on the mere ground(s) that the Plaintiff or Applicant did not comply with the stipulated mode or form of initiating it. The trial Court is vested with such discretion, unless the trial Court thinks that the injustice or injury complained of by the person raising the objection, cannot be remedied by any order by the Court. I believe that with that provision (Rule 18), once the trial Court finds the objection to be of no consequence, or that whatever is complained about can be remedied, without invalidating the suit, the non-compliance ceases to be fatal.
The trial Court, in this case had held:
“I am of the firm view that the intendment of Rule 18 is to cure any defect relating to non-compliance with the Rules, including Rule 2(1) dealing with mode of commencement of actions. This is so because the attitude of Courts in the present day, is to do substantial justice in cases brought before them and not to be clogged by under technicalities. Rules of Court do not confer or inhibit jurisdiction. They are rules of procedure and merely regulate the exercise of a jurisdiction conferred…
The Respondent has not shown that it will suffer any injustice, because the suit was commenced by Motion and not Originating Summons.” See Pages 422 – 423 of the Records of Appeal.
I think the trial Court held correctly and that the case of Efiok Vs Government of Cross River State & Ors (2011) 10 ALL FWLR, decided by this Court, cited and relied upon by Appellant is not applicable to this case.
We have stated several times that the Rules of Court are meant to help the Court to do justice to parties, not to arm-twist or suffocate justice by resort to undue technicalities. See INEC Vs Mbawike & Ors (2017) LPELR – 41623 (CA), where we said:
“We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said: “Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passing earth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130, Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1. See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA), where we held: “… The Rules of Court are hand maids of the law to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade Vs Spring Bank Plc (2013) LPELR – 20763; (2014) 4 NWLR (pt.1396) 93, Ugba Vs Suswam and Ors (2012) LPELR 8635; (2014) All FWLR (pt.723)1886. Again, in that case of ACN Vs Lamido (2011) LPELR – 9174 CA, while considering the Provisions of Paragraph 41 (10), 46(5) and (6) of the Schedule to the Electoral Act, 2010, as amended, touching on the maximum time (14 days) a Petitioner has to proof his case (Par.41 (10)), and the fact that, a party shall close his case at the conclusion of evidence, by oral application therefor (Par.46 (5)) or the Tribunal may suo motu close a party’s case, where a party fails to do so, my learned brother, Ogbuinya JCA, said: “Where a strict adherence to the rules of Courts or practice directions will constitute an albatross along the terrain of dispensing substantial, the Courts are mandated by judicial authorities to tilt towards the path of justice… As a matter of our adjectival law and by the state of the non-compliance rules, the Courts will regard certain acts or conducts of non-compliance as mere irregularity which could be waived in the interest of justice… Non-compliance rules, in their aggregate content, point to this trend than the reverse position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving, non-compliance with rules of Court, particularly, when such non-compliance, if waived, will be in the interest of justice. The basic principle of law is that, it is the object of the Court to decide the rights of the parties and not to punish them for mistakes they, make, in the litigation process, particularly, when the mistakes are real mistakes. It is a known fact that blunders must take place in the litigation process, because blunders are inevitable; it is not fair, in appropriate cases, to make a party in blunder to incur the wrath of the law at the expense of hearing the merits of the case.” The above profound liberal statement of the law, by my lord (even in election related matters) were not disturbed on appeal (ACN V LAMIDO & ORS (2012) LPELR 7825 (SC)), and in my opinion, is unassailable, and tends to agree with the provisions of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010, as amended, to the effect that: “Non-compliance with any of the provisions of this schedule, or with a rule of practice, for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit or just.” See also Labour Party vs Bello and Ors (2016) LPELR – 40848 CA, ratio 7, on the worrisome use of technicalities to defeat justice.”
See also Long-John & Ors Vs Blakk & Ors (1998) LPELR – 1791 (SC), where the Supreme Court held:
“It is undesirable to give effect to rules which will merely enable one party to score, not a victory on the merits, but a technical knockout at the expense of a hearing on the merits. See University of Lagos Vs Aigoro (1985) 1 NWLR (Pt.1) 143 and Nishizawa Ltd Vs Jethwani (1984) 12 SC 234 at 286, Per Ogwuegbu, JSC.
I therefore resolve issue 1 against the Appellant.
On issue 2, which considered the substantive case on the merits in favour of the Respondent, Appellant had quarreled with the approval of the consent to mortgage, being signed by the Commission for Lands, saying that that did not comply with Section 22(1) of the Land Use Act, which requires the Governor to be the one to give such consent to alienate, assign, mortgage, transfer, sublet or, howsoever, deal with statutory right, granted by the Governor. Appellant also wondered whether the Respondent could have recourse to the Appellant on the loan transaction between him (Appellant) and the Respondent’s appointor (Bank of Industry Ltd), in the face of the irrevocable deed of guarantee, made in favour of the Bank by the guarantor, Alhaji M.D. Yusuf (said to be late), and said that the Bank can only demand repayment from the said Yusuf.
Counsel for Appellant had sought the resolution of those Issues in favour of Appellant and had also argued that the decision of the trial Court was against the weight of evidence adduced at the trial.
I am worried that Appellant’s Counsel could argue, so strongly, on those issues, when the law is replete with situations that the signing of consent application for alienation, mortgage or transfer of interest in land by the Honourable Commissioner for Lands of a State, pursuant to delegation of powers by the State Governor, have been validated and protected as due compliance with Section 22(1) of the Land Use Act. Appellant had even cited the case of Olalomi Industries Ltd Vs Nigeria Industrial Development Bank Ltd (2009) 39 NSCQR 240, which acknowledged the power of Commissioner for Lands and Housing to sign the consent form, as delegate of the State Governor. In that case Fabiyi JSC said:
“This Court pronounced that the approval letter was not in accordance with what is envisaged in Section 22 of the Land Use Act. The consent of Honourable Commissioner for Lands is not manifest on the face of the approval letter since the person who signed was not Governor’s delegate, it would be wrong to assume that the signature of the acting chief land officer on the letter attached on Exhibit 1 was an act done in a manner substantially regular on the face of it. The signature on the letter reproduced earlier on, cannot be seen as being in substantial conformity with the signature of the Governor or his delegate, the Commissioner for Lands and Housing…”
See also the case of Babatunde Vs Bank of the North Ltd (2011) 18 NWLR (Pt.1279) 738 and the recent case of Registered Trustees of Kano Motor Club Vs Nafisatu Sani Yola & Ors (2021) LPELR – 56184 CA, where it was held:
“This principle or rule applies wherever the authority involves a trust or discretion in the agent for the exercise of which he is selected – NNPC Vs Trinity Mills Insurance Brokers Ltd supra. The power to grant or re-grant Certificate of Occupancy is definitely one that involves trust or discretion. The Supreme Court has applied the principle to the exercise of the delegated power of the Governor under the Land Use Act and had held that for such exercise of power to be valid, meaningful, effective and effectual, it must be exercised personally and directly by the Commissioner to whom it was delegated, and not by someone else on his behalf. In Union Bank of Nigeria Plc Vs Ayodare and Sons (Nig) Ltd (2007) 13 NWLR (Pt 1052) 567, where the Governor delegated its power of granting consent to mortgages to the Commissioner for Lands and the letter conveying the approval of consent to a mortgage deed was signed by an Acting Chief Lands Officer and not by the Commissioner for Lands personally, the Supreme Court held that the letter was ineffective and ineffectual and that the consent to the transaction conveyed by the letter was invalid. In Olalomi Industries Ltd Vs Nigerian Industrial Development Bank (2009) 16 NWLR (Pt. 1167) 266 where a similar issue arose, the Supreme Court again opined thus: “It is not in dispute that the Military Governor of Kwara State at the material time delegated his power under Section 45(1) of the Act to the State Commissioner for Lands and Housing vide Kwara State Legal Notice No. 4 of 1978. The bone of contention is whether or not the letter of notice issued by the Acting Chief Lands Officer ‘for Permanent Secretary’ is in compliance with Section 22(2) and 45 of the Land Use Act No. 6 of 1978. … The consent of the Hon. Commissioner for Lands is not manifest on the face of the approval letter. Since the person who signed was not the Governor’s delegate, it would be wrong to assume that the signature of the Acting Chief Lands Officer on the letter attached to Exhibit 1 was an act done in a manner substantially regular on the face of it. The signature on the letter reproduced earlier on cannot be seen as being in substantial conformity with the signature of the Governor or his delegate, the Commissioner for Lands and Housing.” The letter, Exhibit E, was signed by a Principal Land Officer in the second Respondent and not by the third Respondent personally and directly.
Appellant’s Counsel cannot also be serious, when he argued that the personal guarantee made by Alhaji M.D. Yusuf was subsisting and so the Bank cannot resort to the appointment of Respondent as receiver to recover the loan transaction; that demand had to be made to the said Guarantor who had obligation to repay the loan, upon the default of the Appellant! It sounds strange, to imply that the bank cannot go after the Appellant to recover the debt, until the bank had demanded same from Alhaji M.D. Yusuf!
There was indisputable evidence that the said Guarantor, Alhaji M.D. Yusuf, was deceased. Even if he was alive and/or his estate could handle the debt obligation, I do not see any law that forbids the Bank (Creditor) from taking steps to recover the debt/loan from the debtor (Appellant), who was the primary contractual party to the loan agreement. See the case of African Insurance Development Company Vs Nigeria Liquified Natural Gas Ltd (2000) 4 NWLR (Pt.653) 494, Fortune International Bank Ltd Vs Pegasus Trading Office (2004) 4 NWLR (Pt.863) 369, Auto Import Export Vs Adebayo (2005), on the principle that the right to go after a guarantor, in a contract, can be exercised by the creditor, separately, from and/or, jointly with the debtor in a suit. It is not for the debtor to teleguide the Creditor on how (or who) to sue, first, to recover his money! A creditor can elect to sue the debtor or the guarantor of the loan, for recovery of the debt, or both of them, jointly. See the case of AIDC Vs NLNG Ltd (2000) LPELR – 210 (SC), where it was held:
“The principle is now well established that the right of action against a guarantor arises on a default by the principal debtor and not on a finding of liability against such debtor. The law is well stated in Andrews & Millet, Law of Guarantees, 1st edn. at pages 162-163 thus: “The fact that the obligations of the guarantor arise only when the principal has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal or from the surety, or give notice to the surety, before the creditor can proceed against the surety. Nor does he have to commence proceedings against the principal, whether criminal or civil, unless there is an express term in the contract requiring him to do so.” Per AYOOLA, JSC.
The Respondent had drawn our attention at the hearing on this appeal on 14/3/2022, to the decision of this Court in Appeal No. CA/K/89/2019, delivered on 31/3/2021. The appeal was between: NATIONAL TRUCKS MANUFACTURERS LTD (as Appellant) VS BANK OF INDUSTRY LIMITED AND DR. YAKUBU FOBUR ESQ (as Respondents).
It was an appeal against the decision of Kano State High Court, in Suit No. K/499/2017, delivered by Dije Abdu Aboki J. whereof the learned trial Court held against the Plaintiff (Appellant herein) in a similar or the same suit, which raised the very same questions and sought the same reliefs, as in this case, at hand.
After hearing that appeal, which had argued the same issues, as Appellant’s issues 2 and 3, herein, namely:
(2) Whether the approval of the application for consent of the Governor to mortgage signed by the Commissioner for Lands and contained in Exhibit BO1ONO amounts to Governor’s consent under 22(1) of the Land Use Act.
(3) Whether the Respondents can have recourse to the appeal on the loan transaction between the Appellant and the 1st Respondent in the face of the irrevocable Deed of Guarantee made in favour of the Appellant on the loan.”
This Court was presided over by Mukhtar, JCA, now late, Abiru, JCA and Lamido, JCA (as members), my learned brother, Abubakar Mu’azu Lamido JCA, read the lead judgment of this Court, dismissed the appeal, with N100,000.00 cost against the Appellant, as this Court affirmed the decision of the learned trial Judge.
It is therefore puzzling to note that Appellant has been embarking on very dangerous scheme of abuse of the Court process. It maintained two suits on the same subject matter in the same year, 2017 – one at the Federal High Court, Kano and another at the State High Court, Kano, and had the same unfavourable outcome, and appealed each to this Court.
I do not know how this gross abuse of the Court process escaped our scrutiny and that of the lower Court. The same Counsel for Appellant in this appeal, argued the earlier appeal, too! Appellant’s Counsel, in my opinion, should bury his face on shame for undertaking this unwholesome practice. The Respondents’ Counsel did not also do well, for failing to draw this Court’s attention to the abuse of the Court process, which has subjected this Court to the unnecessary waste of judicial time and resources in determining this appeal, and which was capable of resulting in conflicting judgments! This practice should be condemned, and I so do, sternly.
The law against abuse of the Court process has always been stated and Counsel warned against forum shopping and duplication of cases in Courts. See the case of Nwosu Vs PDP & Ors (2018) LPELR – 44386 (SC), where it was held:
“What is an abuse of Court process? First, it is settled that the employment of judicial process is only regarded as an abuse, when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice.”
The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC. In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means – Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive.” Per AUGIE, JSC
See also Onuegbu & Ors Vs Imo State & Ors (2015) LPELR – 25968 CA, where we held:
“On the first issue – Abuse of the Court process – authorities are replete, that filing multiple actions in different Courts or in the same Court, over the same subject matter or issue, involving the same parties, is offensive. Also taking out an action for the purpose of irritating, vexing or annoying an opponent and/or subjecting the machinery of justice administration to ridicule and scandal, by so doing, all amount to abuse of the judicial process or abuse or the process of Court. See the case of Tailor & Ors Vs Balogun & Ors (2012) LPELR – 19673 (CA); (2013)10 WRN 137, and the case of Dingoli Vs Bara’u (2012) All FWLR (pt.609) 1156 at 1175 where this Court said: “Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. Adefulu Vs. Secretary, Ikene Local Government (2002) 42 WRN 68; African Re-insurance Corp. Vs J.D.P. Construction Nig. Ltd (2003) FWLR (pt.176) 667.” In the case of Saraki Vs Kotoye (1992) 11 – 12 SCNJ (which was heavily relied upon by the parties in this case) the Supreme Court said: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue of judicial process to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties, simultaneously, in different Courts even though on different grounds.” Also in the case of Ogoejeofo Vs Ogoejeofo (2006)3 NWLR (pt. 966) 205 it was held that the circumstances that will give rise to abuse of Court process include: “(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue(s) or multiplicity of actions on the same matter; (b) Instituting different actions between the same parties, simultaneously, in different Courts, even though on different grounds; (c) Where two similar processes are used in respect of the exercise of the same right. (d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the Court. (e) Where there is no law supporting a Court process or where it is premised on frivolities or recklessness.” The above does not however, exhaust the circumstances in which abuse of the Court process can be inferred, as the definition and application of this procedural mischief, appears to be open-ended and depends on each given circumstance. In the case of Ajonuma and Ors Vs Nwosu & Ors (2014) LPELR – 24015 (CA), it was held that actions or motions filed for sole purpose of frustrating or delaying the trial of substantive case at the lower Court is an affront to the principles of sound adjudication and border on abuse of the Court process.”
This appeal is therefore most unnecessary, vexatious and unreasonable. It is accordingly dismissed and Appellant shall pay the cost of the appeal assessed at Two Hundred Thousand Naira (N200,000.00) only to the Respondent, payable by Appellant’s Counsel.
BOLOUKUROMO MOSES UGO, J.C.A.: I had earlier read in draft the judgment of my learned brother, Ita G. Mbaba, JCA. I am in agreement with his reasoning and conclusions accordingly. I also dismiss the appeal and abide by his Lordship’s order as to costs.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the judgment by my learned brother, ITA G. MBABA, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine and found that the appeal is unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.
Appearances:
EDOJA JOHN ONEMA, ESQ., with him, LINUS O. OKWUTE, ESQ. For Appellant(s)
DR. YAKUBU A. FOBUR, ESQ. For Respondent(s)
