ROBINET NIGERIA LIMITED v. SHELL NIGERIA GAS LIMITED (2013)

ROBINET NIGERIA LIMITED v. SHELL NIGERIA GAS LIMITED

(2013)LCN/6494(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of November, 2013

CA/L/775/2010

RATIO

DUTY OF COURT: THE COURT’S FUNCTION TO INTERPRETE AND ENFORCE THE TERMS OF AN AGREEMENT

The judicially approved function of the court is to interprets the agreement and enforce its terms without more. If the provisions of an agreement are clear and unambiguous and there is nothing to enable the court to put upon them a construction different from that which the words connotes it will remain intact. Thus parties to a written contract are mutually bound by the terms contained in the agreement. The courts intervention can only arise where it is shown that the terms are illegal or contrary to public policy. See MARYAM V IDRIS (2000) FWLR (PT.23) 1237; BUKO VS NIGERIAN POOLS CO. (1968) NMLR 196; FAKOREDE VS AG WESTERN STATE (1972) 1 ALL NLR (PT.1) 178; UBA LTD VS PENNYMART LTD (1992) 5 NWLR (PT 240) 228; ALI VS HASSAN (2004) FWLR (PT.194) 496; ARTRA INDUSTRIES LTD VS NBCI (1997) 1 NWLR (PT 483) 574; ANYAEGBUNAM VS OSAKA (2000) 1 SCNQR 403 and ODUYE VS NIGERIAN AIRWAYS LTD (1988) 2 NWLR (PT.55) 126. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

Justice

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

ROBINET NIGERIA LIMITEDAppellant(s)

AND

SHELL NIGERIA GAS LIMITEDRespondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State delivered by Oyebanji J. on 26-5-2009 in suit No LD/1007/2009 wherein the claimant’s (now appellant) Suit was dismissed.
The appellant had as a claimant commenced a suit against the defendant (now Respondent) by filing a writ of summons dated 6-5-2004 and a statement of claim dated 5-5-2004.
In paragraph 25 of the said statement of claim the claimant claimed the following reliefs against Respondent:-
(a) “An order of this Honourable court, directing the defendant to forthwith pay to the plaintiff, the outstanding sum of N6,928,681.40 (six million, nine hundred and twenty-eight thousand, six hundred and eighty-one naira, forty kobo) being outstanding sum from the total contract sum, the 60% some for additional work and interest on the borrowed sum as at date and interest at the rate of 21% p.a. from 30th May 2002 till judgment and final liquidation.
(b) 40 million naira being general damages arising from business instability and loss suffered by the plaintiff as a result of the defendants unilateral breach of the contract agreement executed in March 2002.”
The facts of the case in a nutshell is that on or about the 18-3-2002 the Respondent awarded to the appellant, a contract for the supply, installation and service/maintenance of two sets of generators and tanks at the Respondents sites at Ota and Aba.
The contract was to be performed in two phases, to wit:- (a) Supply, fabrication and commissioning of the two generators sets and (b) Servicing and maintenance of the two generator sets for the first 5000 running hours.
It was also the terms of the contract that payments thereon shall be in two installments. The first installment of N5,064,969.00 representing the total amount for the first phase of the contract, shall be payable within 30 days of completion and acceptance of the work by the Respondent. The second installment being N1,076,80 for the second phase of the contract i.e. service and maintenance. The completion date was to be May 2002 but the final commissioning of the first phase was done in September 2002 after some adjustments were made in the work done. The Appellant was subsequently not allowed to continue with the second phase of the contract inspite of all efforts to do so. The Respondent eventually terminated the contract vide a letter dated 1/12/2003. The appellants grouse was that the respondent delayed payment for the first phase of the contract, refused to pay for additional work done outside the contract but with the knowledge of the respondent’s site engineer and also the unilateral termination of the contract by the Respondent. Hence it commenced a, suit in the Lagos Division of the High Court of Lagos State. The Appellants statement of claim is dated 5/5/2004. The Respondent as defendant also filed a statement of defence dated 22-10-2004. The claimants reply to the statement of defence is dated 11/5/2005.
At the trial, the Appellant called 1 witness and tendered 34 exhibits in evidence. The Respondent also called one witness and tendered 15 exhibits. Written addresses were also filed and exchanged by counsel for the Parties. In a judgment delivered on 26-5-2009 the appellants claim was dismissed.
Being aggrieved and dissatisfied with the said judgment the appellant filed a notice of appeal dated 21-8-2009 and filed on 26-10-2009. The said notice of appeal contains 3 grounds which shorn of their particulars reads as follows:-

GROUND 1
The Learned trial judge erred in law when he held that though the conduct of the Defendant is morally wrong and reprehensible in a commercial transaction, “the claimant has not placed before the court any basis for the court to award damages in its favour.

GROUND 2
The learned trial judge misdirected himself when he held that the work carried out by the claimant as additional work were works done in order to ensure that the contract was duly performed and the completed structure was fit for its intended purpose.

GROUND 3
The learned trial judge misdirected himself when he held that “the court finds itself unable to hold the Defendant liable for the payment of the works which in my view were additional works done without the consent.
Pursuant to the requirement of the Rules of this court parties eventually filed and exchanged their briefs of argument.
The appellants brief of argument dated 8/7/2011, and filed on 11-7-2011 was settled by E. A. Oyebanji Esq. The Respondents brief of argument settled by C. Osuji and O. Ajayi is dated and filed on 12-6-2012 but deemed properly filed on 17-1-2013. There is also appellants reply brief dated 30-1-13 and filed on 31-1-2013.
In the appellant brief of argument two issues were formulated from the three grounds of appeal as follows:-
(1) Whether or not the appellant is entitled to damages for the termination of the 2nd phase of the contract with the Respondent.
(2) Whether or not the appellant is entitled to be paid by the respondent for additional work done in execution of contract between the Parties.
The Respondent in its own brief of argument adopted the two issues as raised by the appellant and advanced its submissions accordingly.
I will therefore adopt the said two issues in the consideration of this appeal.

ISSUE NO 1
Herein the learned counsel for the appellant submitted that there is a clear finding in favour of the appellant by the lower court on the second phase of the contract as follows:-
(a) That the defendant prevented the claimant from carrying out servicing of the generator as agreed between parties in Exhibit A1.
(b) That by a letter dated 11-12-2003 the defendant terminated the 2nd Phase of the contract
(c) No reason was given for the termination of the contract.
(d) That the appellant wrote letters dated 5/5/03, 6/6/03, 12/8/03 requesting the defendant to permit the claimant carryout routine maintenance services at the location of installation.
(e) The defendant failed to respond to all the claimant’s letter.
(f) The Respondent by its letter dated 11-12-03 over one year after the satisfactory completion of the 1st phase of the contract terminated the contract.
He added that the lower court erroneously held that the termination was not a breach having been provided for in the agreement and that the claimant has failed to particularize and prove the expenses incurred or place before the court any basis for the court to award damages in its favour.
Learned counsel further submitted that the appellant commenced the second phase of the contract and stockpiled the maintenance component but the respondent thereafter prevented the appellant from continuing with the execution of the contract.
He argued further that the whole contract being in lump the amount outstanding to be paid to the appellant is not in dispute and the particulars are well stated by virtue of Exhibit A1, therefore the sum of N1,076,800 plus the accrued interest is what is recoverable from the Respondent.
Furthermore, learned counsel submitted that the finding of the lower court that the act of the Respondent in terminating the contract was morally wrong and reprehensible in a commercial transaction was a finding that the respondent was in breach of contract between the parties and not just morally wrong as stated by the lower court in which case the appellant shall be entitled to damages based on the rule of Restitutio in Intergrum. He referred to the following cases:- OKONGWU VS NNPC (1989) 4 NWLR (PT.115) 296; OSHIN & OSHIN LTD vs LIVESTOCK FEED LTD (1997) 2 NWLR (PT.486) 162 and ACME BUILDERS LTD VS KADUNA STATE WATER BOARD (1999) 2 NWLR (PT.590) 288.
Responding on this issue, learned counsel for the Respondent contended that the statement of the trial judge at page 431 of the record to the effect that “the conduct of the respondent was morally wrong and reprehensible in a commercial transaction, was no more than an obiter dictum and it relates to the late communication of the termination and the legal question of whether the contract between the parties was properly determined. He added that the law is clear that grounds of appeal and issues formulated thereafter most arise from the ratio decidendi of the decision appealed against and not the obiter dictum. He relied on the authorities of FRN vs IFEGWU (2003) 15 NWLR (PT.847) 113 at 211 and IGWE vs AICE OWERRI (1994) 8 NWLR (PT 363) 459.
Learned counsel further submitted that the finding of the trial judge was also clear to the effect that the termination of the contact was within the intendment of Article 6 Section 11 of the contract, hence he further stated that all the claimant can claim is “for work done or where no work was done, for expenses incurred towards doing the work”
He also argued that the authorities of OKONGU VS NNPC and OSIN & OSHIN (II) VS LIVESTOCK FEED LTD cited supra by the appellant are not relevant to the determination of the question whether the trial court was wrong in not awarding damages to the appellant having held that the contract was properly determined by the Respondents letter of 11-08-2003.
Also citing the case of NDIC VS ECOBANK (NIG) LTD (2003) 11 NLWR (PT.830) 93 at 107 and OMEGA BANK (NIG) PLC VS O.B.C LTD (2005) 8 NWLR (PT.928) 547 learned counsel submitted that damages are compensation to the aggrieved party for the wrong done to him by the defaulting party and where there is no default, it will be patently wrong in law for the court to damnify an innocent party by awarding damages against it.
The response of the appellant in his reply brief will be addressed as the need arises.
In the instant case, from the pleadings and evidence of the parties, the following facts are not in dispute:
(i) That the Appellant and the Respondent duly entered into a contract for the supply, fabrication, commissioning and service/maintenance of two Generators and Tanks at the Respondent’s premises in Ota and Aba.
(2)That the said contract was divided into two parts wherein the first part is for the supply, fabrication and commissioning of two sets of Generators and Tanks at the Respondent’s premises in Ota and Aba respectively, while the second part was for the servicing and maintenance of the two Generators for the first 5000 running hours.
(3) That payment for the contract was to be in two tranches.
The first being for the sum of N5,064,969 for the first part of the contract, while the second tranche was for N1,076,800 to cover the second part of the contract.
(4) The first tranche of N5,064,969 was to be paid within 30 days of completion and acceptance of the work done and the tranche of N1,076,800 is to be paid thereafter.
(5) That by a letter dated 11-12-2003 the Respondent unilaterally terminated the 2nd phase of the contract.

It is the law that where there is a contract, the court if called upon, will intervene to protect the contractual rights of the parties. See THOMAS VS. OLUFOSOYE (1986) 1 NWLR (PT.18) 669.
Before determining whether an aggrieved party to a contract is entitled to damage for a breach of the contract, it must first be establish that there is in fact a breach.
In the instant case, the contention of the appellant was that the Respondent is in breach of the agreement between the parties when it terminated the 2nd phase of the contract that involves servicing and maintenance of the two sets of generators.
For the Respondents, the contract was terminated through a letter dated 11-12-2003 but the termination was done pursuant to Section II Article 6 of the Contract Agreement. (EXHIBIT A1).
The said Article 6 section II thereof reads thus:-
“SNG shall have the right to order (a) the termination of WORK or (b) the Suspension of WORK. Any decrease in the cost of the WORK resulting from such order shall be determined by SNG in accordance with the rotes and any other information as shown in Section III Schedule of prices or, in the absence of any appropriate rates and information, a fair and reasonable evaluation shall be made”.
The above clause is quite clear and unambiguous without need for any other meaning being read into it. The appellant duly signed the agreement without much ado and has not shown any act of misrepresentation or fraud in the signing thereof. The learned trial in his finding at page 430 and 431 of the record held thus:-
“However, since the contract provided for termination and also provided for what the claimant would be entitled to upon termination, all that the claimant can claim is for work done or where no work was done, for expenses incurred towards doing the work. These are claims on the nature of specific damages that must be specifically particularized and proved.
The claimant has failed to particularize and prove the expenses incurred. Though the conduct of the defendant was morally wrong and reprehensible in a commercial transaction, the claimant unfortunately has not placed before the court any basis for the court to aware damages”‘
The above reasoning and conclusion of the learned trial judge cannot be faulted given the scenario that played itself out and I entirely agree with it. The appellant duly agreed with the terms of the agreement and signed it without proof of duress, undue influence, misrepresentation or fraud. In this regard the court is totally precluded from reading any contrary meaning into the very clear words of Article G of Section II of Exhibit A1.
It is the duty of court to give effect to the agreement between the parties and not to rewrite same, even if the contract is inelegantly or ineptly couched.

A party who signs an agreement is bound by it.

Learned counsel for the appellant had also challenged the statement of the trial court to the effect that:-
“Though the conduct of the defendant is morally wrong and reprehensible in a commercial transaction”‘
He contended that the import of the statement is that the respondent was in breach of the contract between the parties.
For the Respondents counsel, that statement was nothing more than an obiter dictum which cannot give rise to a ground of appeal as it is not binding on the Parties.
To my mind, whether the statement is an obiter dictum or a ratio decidendi it does not depart from the fact that it was made in good faith without any element of error or approbation and reprobation. My humble understanding of it is that though the act of the Respondent in terminating the contract without much ado may be wrong morally. It does go contrary to the clear terms of the agreement which provided a shield for defence.
I also agree with learned counsel for the Respondent that the authorities of OKONGWU V NNPC supra and OSHIN & OSHIN LTD VS LIVESTOCK FEEDS LTD supra relied on by the appellant are not applicable to this case having found that the termination of the contract was done within the ambit of Article 6 Section II of the Contract Agreement.
Now having found that the termination of the contract by the Respondent was in order pursuant to the terms of the agreement and as such does not constitute a breach of contract. It follows that the issue of damages for such breach can no longer arise for consideration because where no wrong is committed it will be an anomaly to engage on a discussion as to damages.
Consequently, issue No 1 is resolved against the appellant.

ISSUE NO. 2
“Whether or not the Appellant is entitled to be paid by the respondent for additional work done in execution of contract between the Parties”.
Herein, learned counsel for the appellant referred to the evidence of additional work in paragraph 19 of the CW1’s further witness statement on oath at page 185 of the record as well as the particulars of additional work done as contained in page 161 of the record.
He added that though the trial court found that the additional works were outside the scope of Exhibit A1 but fell into error by concluding that since the contract was in writing the same ought to be varied in writing since the consent of the Respondent was not given in writing, the appellants claim for additional work failed.
Learned counsel then submitted that a party by his conduct can induce another to enter into a contract and where such party benefit from such contract, he cannot subsequently deny liability in that contract. He referred to the following authorities. OKECHUKWU VS. ONUORAH (2002) 12 SC (PT.11) 104 at 109; ADETORO VS. UBN PLC (2008) 12 WRN 113 at 141; AND AKANNI VS. MANKAJU (1978) 11 – 12 SC 13 at 76. He then argued that the finding of the lower court that additional work was actually performed and the refusal of the lower court to award damage is consistent as a court of law cannot approbate and reprobate. He urged this court to hold that the appellant is entitled to the sum of N3,038,981.40 and an interest in the said sum at the rate of 21% annum from 19-9-2002 till date of judgment. In his reply, learned counsel for the Respondent referred to the Respondents defence to the claim for additional work as set out in paragraph 14 and 15 of the statement of defence at page 119 of the
record. He also referred to the finding of the trial Judge at 425 to 426 of the record where he enumerated the various heads of work the appellant described as additional work and that of the six items listed, only one item, that is the costing of vertical concrete in Aba that amounted to additional work which unfortunately was not done with the approval or written authority of the Respondent.
Learned counsel submitted that the law on amendment or variation of written contracts is well settled that such contracts can only be varied by agreement in writing as held in CBN vs. IGWILO (2007) 14 NWLR (PT.1054) 393 and, BALIOL (NIG) LTD VS. NAVCOM (NIG) LTD (2010) 16 NWLR (PT.1220) 619.
He added that the appellant has not pin pointed any evidence on record, the basis of which this court can disturb the findings of the trial judge who found that the alleged conduct of the Respondents ‘site engineer’ does not dispense with the need for the appellant to seek and obtain the written approval and consent of the Respondent.
Learned counsel further submitted that the authorities of OKECHUKWU VS. ONUORAH (2000) 15 NWLR (PT.692) 597 and AKANNI VS. MAKANJU (1978) 11 NSCC 526 relied on by the appellant are not relevant to this issue.
He concluded that the claim for the sum of N3,038,981:40 by the appellant for additional work is not borne out of the two reliefs sought at the lower court and ought therefore to be discountenanced.
For the appellants additional works were carried out at both Ota and Aba which total amount is N3,038,981.40 and the said additional works were outside the scope of the original contract but carried out with the consent of DW1, Mr. I. Unah who represented the Respondent at the project sites.
For the Respondent however, all the alleged additional works were part of the original contract and cannot be said to be outside the scope of the agreement, and this fact was communicated to the appellant in several letters including the ones dated 4-10-2002, 22-1-2003, 31-12-2003 and 4-3-2004. It was further contended that the contract did not provide for modification, neither did the appellant obtain authorization or approval of the respondent for an additional work if any. The appellant, it stated, admitted this fact in its letter dated 6-6-2003.
The appellant had listed the additional work done as follows:-
(i) Casting vertical concrete from 0.8m beyond ground level as base tank in Aba (only underground foundation base was envisaged in the contract) as a means of by passing several running underground cables.
(ii) 5 lockable collapsible/overlapping doors for generator house in Aba as against just one lockable entrance.
(iii) Ruining and installation of 4 in 1 Recline cable of 45 metres from NEPA pole to the new electric meter in disregard of existing NEPA connection to MAN of lice to forestall the frequency of burning electricity cable that connected to the building.
(iv) Supply installation of 4 Nos heavy duty double flange control valve installed at both ends of the transparent level gauge to Prevent leakage.
(v) Priming of inside of the tanks against antirust chemical treatment.
A careful perusal of the contract agreement between the parties i.e. Exhibit A1 show that an exhaustive and detail description was given for the nature of work to be done. This is found in section III therein.
For instance, Section Article 2.101 provides that:
“Contractor shall provide modifications to the existing generator house to suit their type of generation.
2:102(b) “Provide iron grill made of one inch iron rod as burglary proof of height 2.5m around the generator with a lockable entrance”.
3.13 – All steel structures shall be painted with lead oxide undercoat and topcoat (black).
3.91 – Flanges, – minimum use shall be made of flanges. The weld neck design flanges shall be employed at piping connections to valves or tanks compressed asbestos fibres conforming to BS 1832 shall be used having a thickness of 1.5mm.
3.93 – Valves – Quick acting ball valves of dual seal with high quality PTFE (polytetra flugroethylene) seal at both sides are to be employed.
3.11 – All metallic structures shall be thoroughly wire brushed and applied with two coats of lead oxide paint to be followed by two coats of black gloss paints.
IN SECTION IV – SCHEDULE OF PRICES AND RATES. A look at the schedule of work to be done at Ota location show item 6 therein to read as follows:-
Supply and installation of 3 – phase meter and connect to NEPA – N120, 000.
I have carefully compared the job description in the contract agreement with the additional work said to have been carried out by the appellant and I find as of fact that they fall within the scope of work to be done by the appellant under the agreement except for the casting of vertical concrete from 0.8m beyond ground level as base tank in Aba as means of bypassing several underground cables.
In the circumstance, the claim by the appellant for having done additional works to the tune of N3,038,981:40 cannot stand except for the concrete casting earlier mentioned. Nonetheless, the content of Exhibit A1 show to all intents and purposes that the parties entered into a written contract for a total sum of N6,141,769 which is to be paid in two tranches of N5,064,969 and N1,076,800 upon the conclusion and acceptance of each job which were in two phases.
Granted, however, that additional work was done by the appellant, there is unfortunately no evidence before this court that the appellant requested for or obtained approval or authorization from the respondent to do so. The appellant relied on pre existing business tradition wherein such additional work is paid for and the fact that the Respondents representative at the site tacitly consented to the additional work done.
The Respondent vehemently denied it, hinging on the premise that no extra additional work (a part from those under the contract) was done by the appellant. Reference was made to Exhibit B6 which is a letter dated 4-10-2002 wherein in reply to the appellants request for payment of 60% of the contract sum as cost of additional work carried out reacted as follows:-
“we wish to make it clear that all outstanding works our letter listed in were jobs outstanding within the contract job. Scope/Specifications. There was neither any additional work given to your company by SNG outside the contract scope nor a variation to the contract as claimed in your letters. In the light of the above there is no justification whatsoever to demand for 60% variation payment of the contract sum.”
The learned trial judge in his judgment at page 429 of the Record as follows:-
“In the instant case, the claimant performed additional work stated above without the consent and approval of the defendant, though the claimant asserted that the site engineer was present when the additional work was done, and approved the additional work done. The claimant having failed to seek and obtain the approval of the defendant to the additional work done, the claimant is not in my view entitled to any payment from the defendant in respect of the said works and I so hold, interestingly when the claimant deemed it necessary to vary the model of the generating sets to be supplied, the claimant did not request for the approval at the site engineer but wrote directly to the defendant and the approval for the variation of the generator specification was given by the managing director of the defendant but the claimant failed to obtain the consent of the defendant in respect of the additional work. It is noteworthy that the claimant in its pleadings failed to provide the cost implication of each of the work done, it merely claimed 60% of the contract sum as the cost of the additional work done without stating how much each of them cost. In the circumstance of this case the court finds itself unable to hold the defendant liable for the payment of the work which in my view are additional works done without the consent or approval of the defendant.”
I cannot but agree with the finding and conclusion of the learned trial judge having correctly presented the true state of affairs.
Thus, granted that the appellant did additional works (this I have earlier held that it did not, except as it relates to one item out of the whole claimed by it). It was not with the consent or approval of the Respondent in which case it cannot make any claim on them against the Respondent.
It is an established principle of law that contracts may be in writing, oral or implied. Thus a contract between parties may be expressed by words or by agreement in writing and signed by the parties. It can also be implied by the conduct of the parties. See MAJEKODUNMI VS. NATIONAL BANK OF NIGERIA LTD (1978) 3 SC 119 where parties enter into an agreement particular in writing, they are bound by the terms of the contract as contained in the agreement without any addition or subtraction and the court lacks the power to rewrite the contract for the parties. See AFROTECH VS. M.I.A. & (SONS) LTD (2000) SC (PT 11) 1 at 15 and KOIKI VS. MAGNISSON (1999) 8 NWLR (PT 615) 492.
Apart from the original written contract entered into and signed by the parties in this case, there is no evidence of any other contract entered into either by words or conduct, express or implied as to justify the claim for additional work done by the appellant.
Issue No. 2 is therefore resolved against the Appellant. On the whole, it is my finding and I so hold that this appeal lacks merit and it is accordingly dismissed.
The judgment of the High Court of Lagos State delivered by Oyebanji J. on 26-5-2009 in Suit No. LD/1007/2009 is hereby affirmed.
I make no order as to costs.

AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusion. He dealt comprehensively with all the issues canvassed in the appeal, and I have nothing useful to add except to reiterate that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law – see Black’s Law Dictionary, 8th Ed., where it is also defined as “a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”.

More importantly, and quite aptly so, in the circumstances of this case, parties must reach a consensus ad idem for the contract to be regarded as binding and enforceable – see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (pt.1092) 339, P.T.F. V. W.P.C. Ltd. (2007) 14 NWLR (Pt.1055) 478.
In other words, the two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract – see Dodo v. Solanke (2007) ALL FWLR (Pt.346) 57.
In this case, apart from the original written contract entered into and signed by the parties, there is no evidence of any agreement or contract they signed or entered into regarding any additional work done by the Appellant, and without any agreement to that effect, this Court cannot be of assistance.
Thus, I also dismiss the appeal. I also abide by the consequential orders in the lead Judgment, including the order as to no costs.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Oseji, JCA, granted me the privilege to read before now the lead judgment just delivered. I am in complete agreement with the reasoning and conclusion; I have nothing to add, except to say I too dismiss the appeal and affirm the judgment delivered by Oyebanji, J on 26/5/2009 in Suit No.LD/1007/2009.
I abide by all consequential orders including costs.
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Appearances

E. A. Oyebanji with M. A. OlarenwajuFor Appellant

AND

Dr. K. U. K. Ekwueme with Khadijs Yusuf (Mrs.) and C. OsujiFor Respondent