MR. SOJI FAGBOHUN v. MAJOR AJAYI OGUNLEYE (2014)

MR. SOJI FAGBOHUN v. MAJOR AJAYI OGUNLEYE

(2014)LCN/6766(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of January, 2014

CA/EK/61/2013

RATIO

WHETHER THE RECORD OF PROCEEDINGS OF A COURT IS DEEMED CORRECT UNTL CHALLENGED

EFFECT OF THE FAILURE OF A RESPONDENT TO FILE A BRIEF OF ARGUMENT

It is settled that where the Respondent fails to file his Brief of Argument, such a Respondent will be deemed to have conceded to the points/arguments raised and or canvassed in the Appellant’s Brief of Argument, in so far as the same is borne out by the Record of Appeal. See Lagricom Co. Ltd. vs. U.B.N. Ltd. (1996) 4 NWLR (Pt.441) 185; Shomolu L.G.C. vs. Agbede (1996) 4 NWLR (Pt.441) 174. Again, the law is trite that where there is satisfactory proof of Service of requisite processes and the parties or their representatives are absent at the hearing, the Court will regard the Appeal as having been duly argued and thereafter proceed to deliver its judgment thereon. See Bob-Manuel vs. Briggs (1995) 7 NWLR (Pt. 409) 537 and Abana vs. Obi (2004) 10 NWLR (Pt.881) 319. Per MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

MR. SOJI FAGBOHUN – Appellant(s)

AND

MAJOR AJAYI OGUNLEYE – Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of Hon. Justice M. A. Agbelusi, J. of the High Court, Ekiti State sitting at Ado-Ekiti, delivered on the 21st day of June, 2011. In the said decision, the learned trial judge entered judgment in favour of the Plaintiff/Respondent, hereinafter called the Respondent for a liquidated sum of N1,000,000.00 (One Million Naira). He also awarded 10% interest rate from the said 21st June, 2011 until the total judgment sum is paid.

The facts of the case as garnered from the Record of Appeal placed before us are as follows:

The Respondent commenced his action against the Defendant/Appellant, hereinafter called the Appellant vide an Ex Parte Application filed on 7th November, 2010 wherein he prayed the lower court for the following orders:

“1. An order for the issuance of a Writ of Summons against the Defendant in respect of a claim for a liquidated sum of N1,000,000.00 (One Million Naira only).

2. An order entering the suit for hearing in the Undefended List and marking the Writ accordingly and

3. An order entering a date thereon for hearing.”

The Application has a 26 paragraph Affidavit in support with various documents attached thereto and marked as ‘Exhibits’. In the endorsed Writ, the claims made by the Respondent against the Appellant are reproduced below:

“The Plaintiff claims against the Defendant are as follow:

a. A sum of N1,000,000.00 (One Million Nain) being the total sum of money which the Defendant collected from the Plaintiff for the purchase of 2 plots of land from the Plaintiff at Fagbohun Estate, Ado/Ikere Road Ikere-Ekiti, which he has failed to do.

b.10% interest on the said sum of N1,000,000.00 (One Million Naira) from the date of judgment till the total sum is paid.”

On 21st December, 2010 the said Respondent’s Application by way of Motion Ex Parte for the issuance of Summons, placement of the action on the Undefended List and fixture of a date thereon for hearing was duly heard and adjourned to 11th January, 2011 for Ruling. However, the Ruling was delivered on 14th January, 2011, wherein the reliefs sought in the Ex Parte Application were granted.

On 20th January, 2011 both the learned Respondent’s counsel, Mrs. T. Ajibulu, and Mr. R. M. Anyanwu, learned counsel for the Appellant were present before the lower court. The matter was then adjourned at the instance of Appellant’s counsel to 28th January, 2011 for hearing.

On 31st January, 2011 while Mr. R. M. Anyanwu, learned counsel for the Appellant was present in court, the learned counsel for the Respondent was absent. The lower court ordered that Hearing Notice shall be served on the Respondent. The pending Application was adjourned to 8th February, 2011 for hearing.

On the said 8th February, 2011, the matter came up for hearing as previously fixed. The Appellant’s counsel informed the lower court that he has filed a Motion on Notice which has not been served on the Respondent. The learned trial judge observed that “the motion paper is not even in the court file nor is it served yet on the Plaintiff. Mr. Anyanwu says he has violated no law in delay. .” The learned trial judge then awarded N6, 000.00 costs against the Appellant and the Motion was adjourned to 14th February, 2011 for hearing (p. 61 of the Record of Appeal.)

On 14th February, 2011 R. M. Anyanwu Esq., learned counsel for the Appellant again informed the lower court that he has filed a Motion for Joinder. However, the learned trial judge observed that, “there is no Motion for Joinder or any Motion at all in the case file.” Nevertheless, the matter was again adjourned to 14th February, 2011 for hearing. It was further adjourned to 16th February, 2011.

On 16th February, 2011 the learned counsel for the Appellant was present while the learned counsel for the Respondent was absent. The lower court ordered that Hearing Notice shall be served on the absent party and the matter was adjourned to 24th February, 2011.

On 24th February, 2011 while the learned counsel for the Respondent was present, the learned counsel for the Appellant, R. M. Anyanwu Esq. was absent. He wrote and stated that “he is indisposed.” The pending Motion was adjourned to 3rd March, 2011 for hearing.

On 3rd March, 2011 the lower court did not sit. The case was adjourned to 18th March, 2011 and on the said date, both learned counsel for the parties were present. Learned counsel for the Appellant, R.M. Anyanwu, Esq. informed the lower court that “parties are contemplating on settling out of court.” The case was then adjourned to 28th April, 2011 for report of settlement. (P. 64 of the Record of Appeal.)

On 28th April, 2011 for reason(s) not stated on the Record, the lower court did not sit and the matter was adjourned to 3rd May, 2011. On the said date, while Mrs. Toyin Ajibulu, the learned counsel for the Respondent was present, the learned counsel for the Appellant was absent. The learned trial judge adjourned the Motion to 11th May, 2011 for hearing. It was further ordered that Hearing Notice shall be served on the Appellant. (P.65 of the Record of Appeal.)

On 11th May, 2011 learned counsel for the Appellant was present while the learned counsel for the Respondent was absent. The matter suffered yet another adjournment. It was further adjourned to 23rd May, 2011 for hearing. On 23rd May, 2011 learned counsel for the Respondent informed the lower court, that the learned counsel for the Appellant intimated her, “this morning that he is indisposed.” Hence, in the given circumstance, “she is asking for a short date.” The case was again adjourned to 2nd June, 2011 for hearing.

On the said date, that is 2nd June, 2011 the lower court did not sit. The case was adjourned to 17th June, 2011. Now, on the said 17th June, 2011 learned counsel for the Respondent sought for the striking out of Appellant’s pending Application. The lower court accordingly struck out Motion No. HCR/3M/2011 “for want of diligent prosecution.” Learned Respondent’s counsel also sought that judgment be entered for the Respondent under Order 23 Rule 4 of the Ondo State High Court (Civil Procedure) Rules, then applicable in Ekiti State. The lower court adjourned the matter to 21st June, 2011 for judgment. (P. 67 of the Record of Appeal.)

On 21st June, 2011 learned counsel for both parties were present in court. On the said date, the learned counsel for the Appellant R. M. Anyanwu Esq., informed the lower court that he has “filed a Motion on Notice this morning”, with service yet to be effected on the relevant parties; inclusive of parties being sought to be joined. He also mentioned that “he got information that the case is coming up this morning.” Additionally, that his earlier Motion was struck out, hence the filing of the fresh Motion. Learned counsel for the Respondent confirmed that she was “not aware of this motion” and that the matter was scheduled for delivery of judgment. The learned trial judge in his Ruling briefly recounted all that had transpired in the matter so far and concluded thus, “I cannot take the Motion he filed belatedly and which is calculated to delay. I accordingly strike out Motion No. HCR/02M/2011. I proceed to read the judgment.” (Pp. 68 – 69 of the Record of Appeal.)

The afore-described judgment was duly delivered. The Appellant was dissatisfied with the said judgment and hence the instant Appeal which he filed on 8th March, 2013 upon the grant of Leave by this Court on 5th March, 2013. His Notice of Appeal contained three Grounds of Appeal. The Grounds of Appeal, shorn of their particulars are reproduced below:

“1. The learned trial judge erred in law when he failed, refused and neglected to hear the Defendant’s pending Application even though his indulgence was craved to same and he proceeded to strike out same and this has occasioned a miscarriage of justice.”

“2. The learned trial judge erred in law when he granted judgment in favour of the Plaintiff against the Defendant when it is apparent that the Defendant did not wrong the Plaintiff and this occasioned a miscarriage of justice.”

“3. The learned trial judge erred in law when he failed to accord the Defendant the right of hearing when it was apparent that the Defendant was not aware of the hearing date.”

In compliance with the Rules of this Court, the Appellant’s Brief of Argument was filed on 21st June, 2013. It was prepared by Olabanjo O. Ayenakin Esq. Three issues were formulated therein for determination in this Appeal. The issues are:

“(i) Whether the learned trial judge was right in refusing to hear the Appellant’s Application and eventually striking out the said Application.

(ii) Whether the learned trial judge was right in awarding judgment against the Appellant when the Appellant had not wrong the Respondent.

(iii) Whether the Appellant was accorded fair hearing by the learned trial judge.”

It is to be noted that the Respondent failed and did not file his Brief of Argument in response to the one filed by the Appellant. On 22nd October, 2013 when the matter came up for hearing before us, while the learned counsel for Appellant was present, the learned counsel for the Respondent was absent. We were satisfied with the proof of service placed before us by the Registrar of this Court with regard to the service of both the Hearing Notice against the sitting of that date and the Appellant’s Brief of Argument on the Respondent. While the former was served on him through his counsel on 10th October, 2013, the latter was personally served on him as far back as 26th June, 2013. Thus, we ordered and proceeded with the hearing of the Appeal as provided under Order 17 Rule 11 and Order 17 Rule 9 (4) of the Court of Appeal Rules, 2011. On the said date, learned counsel for the Appellant identified the Appellant’s Brief of Argument, adopted and placed reliance on the arguments contained therein. He urged us in conclusion to allow the Appeal, set aside the judgment of the lower court and either dismiss or strike out the Respondent’s claim at the lower court in its entirety.

Issue No. 1

On this issue, learned counsel for the Appellant mentioned that it should be noted that at the lower court, the Appellant’s counsel “separately filed a Notice of Intention to Defend and as well brought a Motion for Extension of Time, which was needless anyway”. It was thus contended by the learned counsel for the Appellant, that “in law, every trial judge that is faced with a pending Application in any suit; must first of all determine the Application one way or the other before proceeding to the substantive suit.” He cited the cases of Batisan & Anor. vs. Chief Okunniga (2005) All FWLR (Pt. 286) 809/819; Ohajunwa vs. Obelle (2008) 3 NWLR (Pt. 1073) 52/78; Attorney-General, Rivers State vs. Ude (2007) All FWLR (Pt. 347) 598/614 in support of his submission that whatever be the nature of a pending Application, even if it is “downright stupid” or “an abuse of court process,” it must be heard and decided “one way or the other; otherwise there would be a breach of fair hearing.” Hence, according to the learned Appellant’s counsel, the learned trial judge “erroneously struck out the Application of the Appellant without hearing same on the ground that same was filed belatedly.” He added that the instant suit, having been commenced by the Respondent herein under the Undefended List Procedure as provided under Order 23 of the Ondo State High Court (Civil Procedure) Rules, 1987 then applicable to Ekiti State; that “a Defendant who wishes to defend an action under this Rule should file a Notice of Intention to Defend.” Again, according to the learned Appellant’s counsel, “the Rule did not stipulate or state any time limit within which the Notice of Intention to Defend was to be filed.” Hence, his contention that the Motion for Extension of Time which he brought, “was needless anyway.” It was further argued, that being unaware of the hearing date, the lower court has been robbed of “the competence to proceed with the substantive suit and whatsoever was done thereafter was a nullity.”

Issue No. 3

On this issue, learned counsel for the Appellant argued that both counsel were not aware of 17th June, 2011 as the hearing date, since they were not in court on the previously adjourned date. According to the learned counsel, the learned trial judge ought to have adjourned the matter and cause Hearing Notice to be issued and served on the Appellant. He maintained that service of Hearing Notice on a party who deserves to be served is fundamental and where there is no evidence of service where one is required, that it goes to the root of adjudication and the court faced with such a situation lacked the competence or jurisdiction to entertain the matter. He referred to the cases of Asuquo vs. Eshiet (2008) All FWLR (Pt. 401) 970/983 – 984; Ene vs. Asikpo (2011) All FWLR (Pt. 553) 1907/1939; Kalagbor vs. General Oil Ltd. (2008) All FWLR (Pt. 418) 303/322 and Intagro Ltd. vs. Bassey (2008) All FWLR (Pt. 419) 450/470 in support of this submission. It was urged on us, that the Appeal should be allowed with the grant of the reliefs sought by the Appellant therein.

Issues No. 1 and 3 are inter-related and as such, I intend to consider and resolve both issues together. Litigations or proceedings in respect thereto are not to be pursued or portrayed as a game of hide and seek or chess where the participants are all out to outwit each other. Howbeit, in the conduct of litigation, parties are required to play the game if it can be likened to a game, according to the rules and with their cards placed upwards on the table and not concealed in a clandestine manner under it.

In the instant case, it is instructively significant to note, that even though the learned counsel for the Appellant maintained that he had “separately filed a Notice of Intention to Defend and as well brought a Motion for Extension of Time, which was needless any way” I hasten to point out that I have duly conducted a diligent, detailed and exhaustive search of the Record of Appeal placed before us and such a Notice of Intention to Defend separately filed and as claimed by the learned counsel for the Appellant, cannot be found therein. This in essence culminates in the legal and logical conclusion that no such Notice of Intention to Defend has been filed.

The law is settled that both the parties and the appellate courts are bound by the Record of Appeal placed before them. Indeed, the Record of Proceedings of a court is presumed to be correct unless it has been successfully challenged. See Agwarangbo vs. Nakande (2000) 9 NWLR (Pt. 672) 341; Ukachukwu vs. Uba (No. 2) (2005) 9 NWLR (Pt.930) 370/396. Thus, at the end of it all, the Appellant can be rightly adjudged as not having placed or filed a Notice in writing that he intends to defend the suit coupled with an Affidavit which disclosed a defence on the merit as provided by the relevant and applicable Rules of the lower court. Again, the purpose of serving Hearing Notice in litigation is to inform a party of pending proceedings. Thus, it behooves a party who has made previous appearances in court in respect of a matter and at whose instance adjournments have been granted on several occasions in the past, to enquire and ascertain subsequent adjournments granted thereafter in such a matter. In the instant case and going by the printed Record and antecedent cum antics of the learned counsel for the Appellant herein, who has formed the habit of filing Applications and abandoning such Applications, the observations and finding made in the Ruling delivered by the learned trial judge on 21st June, 2011 somewhat hit the nail on the head. He said this much:

“Again this morning and characteristic of Mr. R. M. Anyanwu in his delay play says he filed a Motion this morning and had put it in the file contrary to my instruction that case should come up should not be put in the case file. He says he has not served the parties concerned on account of that again asks for an adjournment on a case that was slated for judgment. I cannot take the Motion he filed belatedly and which is calculated to delay. I accordingly strike out Motion No. HCR/02M/2011. And I proceed to read the judgment.”

I am thus of the firm viewpoint that what the Ruling of the learned trial judge stated above cannot be faulted. It was deserving and well made in the given circumstances of this case. This is more so, when a similar Motion on Notice, Motion No. HCR/13M/11 filed as far back as 8th February, 2011 was struck out on 17th June, 2011 for want of diligent prosecution.

What the right to fair hearing as enshrined in the Constitution entails in the main, is that in the determination of his civil rights and obligations, every citizen of Nigeria must be given adequate opportunity of being heard. However, this does not transform into a scenario whereby such a citizen must be heard at his own terms, pace or pleasure. Hence, where he has been given ample opportunity of being heard and he failed or refused to utilize such a golden opportunity so to say; such an attitude or approach will engender a valid response that he should not place whatever be the untoward and unpalatable consequences which arose therefrom at the doorsteps of others. It is evident that in the instant case, the Appellant failed or refused to take advantage of the opportunity and guarantee offered by the applicable rules of the lower court for him to be heard. Thus, he cannot be heard to complain.

To my mind, the Appellant herein has not been wrongfully refused or blatantly denied the opportunity to be heard. Indeed, he was the sole architect of his own plight and or misfortune if any. He has not been diligent and he willfully neglected and somewhat abandoned the Proceedings. Thus, the lower court cannot and should not be expected to wait endlessly for him to turn up at his convenience for his defence which apparently is non-existent. This is more so, since no Notice of Intention to Defend was filed. Failure on the part of the Appellant and or his counsel to make requisite enquiries and find out what is happening or has happened in the case, shows high element of disdain and disinterestedness in the matter/proceedings. It is worth restating, that the issues under consideration somewhat raised the question as to whether in all the given circumstances and peculiar facts of the instant case, the Appellant could be adjudged as having had a fair hearing. To my mind and going by the Record of Appeal placed before us, the Appellant was granted the requisite opportunity by the Rules and afforded the freedom by the lower court to present his defence. Alas, he failed to do the needful. In this vein, he cannot and should not expect the court to wait ad infinitum for him to discharge his own side of the bargain. He cannot pass the buck. It stops at his table or that of his counsel.

At the lower court, the Appellant somewhat attempted to arrest the judgment of the said court. Howbeit, at all times, any veiled or subtle attempt towards arresting the judgment of a court must be critically dissected, examined and dealt with accordingly/appropriately. Again, the law remains trite, that the burden is on the party who alleges breach of his right to fair hearing to prove the breach. In the instant case, the Appellant has failed to do this much.

Additionally, the law is firmly established that what constitutes fair hearing or its breach depends on the circumstances and given facts of each case. See NEPA vs. Arobieke (2006) 7 NWLR (Pt.979) 245. Thus, the arguments canvassed by the learned counsel for the Appellant in this and other regards are of no moment, weightless and worthless. Hence, both issues are resolved against the Appellant and in favour of the Respondent.

Issue No. 2

Regarding this issue, the learned counsel for the Appellant referred to Exhibits A and C attached to Respondent’s affidavit in support of his Application for the issuance of the writ under the Undefended List Procedure. He pointed out that going by Exhibit A, “it is apparent that the said One Million Naira allegedly paid by the Respondent was paid to the Appellant’s company and not to the Appellant personally.” He added that “by Exhibit C it is obvious that the said company is a limited liability company.” It was then argued that in the face of both exhibits, “it is apparent that the Appellant did not or has not wronged the Respondent.”

Learned Appellant’s counsel further submitted that under the doctrine of legal personality, “a limited liability company is the proper and competent party who ought to be sued in any transaction the company enters into.” Additionally, that the Appellant was not a necessary party in this suit and ought not to have been joined therein. According to the learned counsel, this is more so, “when it was obvious and evident that the Respondent had no contractual relationship with the Appellant but with the Appellant’s limited liability company.” He referred to and placed reliance on some cases which include Okolo vs. U.B.N. Ltd. (2004) All FWLR (Pt.197) 981 for this standpoint.

Regarding Issue No. 2, the law is crystal clear and settled that what has been admitted needs no further proof. See Salawu vs. Yusuf (2007) All FWLR (Pt. 384) 230/252; Ibadan L.G.P.C. Ltd. vs. Okunade (2005) 3 NWLR (Pt. 911) 45. In the instant case, the Respondent in his affidavit in support of his motion ex parte for the issuance of the writ in this matter under the Undefended List Procedure deposed in paragraph 8 thereof as follows:

“8. That I issued a cheque of One Million Naira on the 25th day of March, 2009 with my Zenith account cheque book with cheque number 00000049 in the name of the Defendant.” (Underlining added for emphasis) (P. 2 of the Record of Appeal.)

In his response and as contained in his Affidavit in support of Motion on Notice, the Appellant in paragraphs 2 and 3 of the said Affidavit deposed and stated thus:

“2. That I have seen and read the Plaintiff’s Writ of Summons in this Suit and the Ex Parte Motion together with its supporting Affidavit in Motion No, HCR/42m/10.

3. That paragraphs 1, 2, 3, 4, 8 and 24 of the Plaintiffs/Respondent’s said Affidavit are true.” (Underlining added for emphasis). (P.18 of the Record of Appeal.)

In Chief Chukwuemeka Odumegwu Ojukwu vs. Dr. Edwin Onwudiwe & Ors. (1984) 2 SC 15/88 y noble Lord Aniagolu, JSC of blessed memory enunciated thus:

“Another principle deeply enshrined in our jurisprudence is that admission made do not require to be proved, for the simple reason, among others, that ‘out of the abundance of the heart the mouth speaketh’ and that no better proof is required than that which an adversary wholly and voluntarily owns up.”

Where as in the instant case, the claim is for a definite sum allegedly paid by the Respondent to the Appellant and the latter admitted that he received the said sum, then it is both legal and logical that no difficulty will or should be encountered in the lower court entering judgment for the sum claimed and admitted. This is more so, where the Appellant as in the instant case did not make any contrary assertion that the transaction involving the purchase of two plots of land, has been satisfactorily executed. Thus, any attempt by the Appellant to resile or recant from the clear admission, should be regarded as a smokescreen and an afterthought.

To my mind and with the Affidavit evidence is lucid and as demonstrated above, the Appellant cannot be heard to state otherwise and anyway, it is too late in the day for him to contend and introduce fresh permutations and or postulations before us and which said issues were not presented before the lower court vide a proper and valid Notice of Intention to Defend accompanied by an Affidavit which disclosed a defence on the merit as required by the Rules of the lower court, coupled with pronouncement made thereon by the learned trial judge. This is more so, when such new issues or points are being raised for the first time in this Court and without the prior leave of either the lower court or this Court having been sought and obtained. See Honika Sawmill (Nig.) Ltd. vs. Hoff (1994) 2 NWLR (Pt. 326) 252; Idika vs. Erisi (No. 2) (1988) 2 NWLR (Pt. 78) 563.

It is well recognised that the specially provided procedure of placing certain category of cases under the Undefended List Procedure, is aimed at and intended as a short cut towards facilitating and achieving expeditious and judicious determination of apparently non-contentious cases that need not have been brought to court for adjudication in the first instance. Where in a case rightly placed in the Undefended List as in the instant case, a Defendant such as the Appellant herein did not file any notice of intention to defend the claim and or depose to an Affidavit wherein a semblance of defence on the merit has been disclosed; in such a situation, the lower court such as in the instant case, would have been obliged and justifiably too, to enter judgment against such a Defendant.

As previously stated by me, the instant case was rightly placed in the Undefended List and the Appellant dilly dallied and delayed the matter endlessly, before the lower court became fed up and proceeded rightly too in my view to deliver its judgment. The courts are courts of law and equity. Thus, it is only right and proper that Rules of courts which are provided for the hearing of specific actions ought to be complied with as laid down by the applicable Rules. In this regard, a party under our adversarial system cannot be heard to complain that he has been shut out when he has woefully failed to comply with the requirements provided by the Rules of court. What is more, equity aids the vigilant and not the indolent. This second issue is also resolved against the Appellant and in favour of the Respondent.

Having given adequate considerations to the contents of the printed record of appeal placed before us in this matter coupled with the arguments canvassed by the learned counsel for the Appellant in the Appellant’s brief, I have no gainful or valid basis whatsoever to disturb the judgment of the lower court. In conclusion and having resolved the issues formulated for determination of this Appeal in the manner stated above, I am of the firm viewpoint that the Appeal lacks merit and it is thereby dismissed by me. The judgment of the lower court delivered on 21st June, 2011 in Suit No. HCR04/2011 is hereby affirmed. I make no order with regard to costs.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment delivered on the 17th January, 2014 by my learned brother, Oredola, JCA, which was made available to me on the 13th February, 2014 for my contribution and I agree with the reasoning contained therein and the conclusion arrived thereat.

My learned brother has ably treated all the issues raised for determination of this Appeal that I have nothing to add.

The Appeal is hereby dismissed by me. I abide by the consequential orders made in the lead judgment, including order as to cost.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA, J.C.A., and I entirely agree with the reasoning contained therein, and the conclusion arrived thereat. My learned brother has ably dealt with all the issues canvassed in this Appeal admirably.

I am in agreement with my learned brother that the Appeal lacks merit and I also dismiss it. I also affirm the judgment of the lower Court delivered on 23rd June, 2011 in Suit No: HCR/04/2011.

I abide by the order made in respect of costs.

Appearances

O. O. Ayenakin Esq.For Appellant

AND

Respondent absent and unrepresentedFor Respondent