DR. OLUGBOYEGA ISIJOLA v. EKITI STATE MICRO CREDIT AGENCY (2014)

DR. OLUGBOYEGA ISIJOLA v. EKITI STATE MICRO CREDIT AGENCY

(2014)LCN/7064(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/EK/92/2013

RATIO

JURISDICTION: WHETHER EVERY COURT HAS INHERENT JURISDICTION TO SET ASIDE ITS JUDGMENT OR DECISION

The law is settled that any court of record including the Supreme Court, see OLABANJI V. ODOFIN (1996) 2 SCNJ 242 AT 247; has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See SKEN CONSULT (NIG) LTD V. UKEY (SUPRA); A.C.S. PLC V. LASADA (NIG) LTD (1995) 7 NWLR (PT 405) 206. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See EZEOKAFOR V. EZEKA (1000) 6 SCNJ 209. This is common sense that if a court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. AKINBOBOLA V. PLISSON FISKO (NIG) LTD (1991) 1 NWLR (PT 167) 270. A judgment or order which is a nullity owing to failure to comply with an essential provision, such as service of process, can be set aside by the court which gave it or made the order. See ANATOGU V. IWEKA II (1995) 9 SCNJ 33; 8 NWLR (PT 415) 547 Per Ogundare JSC said:-
“the general rule is that the court has no power under any application in the action to alter or vary a judgment or order drawn up, except so far is necessary to correct errors in expressing the intention of the court or under the slip rule. There are however, exception to this rules some of which are:
(1) A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process can be set aside by the court which gave the judgment or made the orders. See SCOTT -EMIAKPOR V. UKAUBE (1975) 12 SC 41.

When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such as order or judgment becomes a nullity if the defendant proves non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service the fundamental rule of natural justice audi alteram partem will be breached. See SKEN CONSULT CASE (SUPRA).

In view of the above, the court below was in error to have held that it had no power to set aside the judgment because the judgment in this matter was a judgment obtained under the undefended list. Where as in this case the aggrieved Appellant complains of non-service of the process, he is raising a fundamental issue, which goes to the jurisdiction and the competence of the court to enter the judgment. In such a case, where the Appellant proves non-service on him, the whole proceedings becomes a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasized, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case: see CRAIG V. KANSSEN (1943) KB 256. It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process where the service of the process is required the person affected by the order, but not served with process, is as mentioned above entitled ex debito justitiae to have the order set aside as a nullity. See MBADIJUJU V. EZUKA (1994) 8 NWLR (PT 364) 5. PER FATIMA OMORO AKINBAMI, 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

DR. OLUGBOYEGA ISIJOLA Appellant(s)

AND

EKITI STATE MICRO CREDIT AGENCY Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A.(Delivering the Leading Judgment): The Ekiti State Micro Credit Agency, the Respondent herein was the Plaintiff before the High Court of Ekiti State, in Ado-Ekiti Judicial Division where they claimed against the Appellant then defendant herein as follows:-
(1) A sum of Three Million Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only being the outstanding balance on an aggregate sum of Three Million Eight Hundred and Five Thousand Naira (N3,805, 000.00) only advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons and which sum has remained unpaid by the Defendant upon the default of his recommended persons, despite repeated demands and entreaties from the Plaintiff.
(2) The Plaintiff claims 10% post judgment interest on the said sum of Three Million, Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only until the liquidation of the entire judgment sum.

The Respondent commenced the substantive action leading to this appeal in the Ekiti State High Court, under the undefended list procedure of the Old Ondo State High Court Civil Procedure Rules, 1987, applicable in Ekiti State. The Respondent in compliance with the rules of the trial Court filed an ex-parte motion dated 7th June, 2011 for issuance of Writ of Summons under the Undefended List and leave to serve same on the Appellant by substituted means. The application was granted on the 27th of July, 2011. The Writ of Summons marked “UNDEFENDED” was issued and served on the Appellant through the bailiff of the trial Court. On the 18th October, 2011 a bailiff of the High Court, Ado-Ekiti deposed to an affidavit of service on the Appellant as follows:-
“make oath and say that on 18th day of October, 2011 I pasting served upon Dr. Olugboyega Isijola of Ogotun Ekiti a copy hearing notice, Enrolment of order, Writ of Summons, Affidavit in support of Court Exhibit ‘A’ and ‘B’. In respect of the above mentioned case by delivering same personally to him/her at Ogotun-Ekiti. Before the day I served the process I did not know him but was pointed out to me by Plaintiff”.

The suit was fixed for hearing on the 4th of August, 2011 by the learned trial Judge. However on the 20th October, 2011, Hon. Justice A. K. Fowe granted the Respondent’s prayer and entered judgment as follows:-
“Parties absent. Abiodun Bello for the Plaintiff. No legal Representative for Defendant. There is proof of service on the defendant. There is no Notice of Intention to defend this suit. Under the Undefended List Procedure in the old rules under which this suit was placed under the Undefended List Procedure on the 10th day of October, 2011 and having perused the file, no notice of intention to defend and there is no affidavit disclosing any defence on its merit, this Court gives the following judgment:
“Judgment is hereby given to the Plaintiff and against the Defendant in the sum of Three Million Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only being the outstanding balance advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons which sum has remained unpaid by the Defendant upon the default of his recommended persons, despite repeated demands. The judgment also attracts interest at 10% per annum from now until the final liquidation of the judgment debt”.

The Appellant only got to know of the action and judgment when an attempt was made to levy execution of the judgment upon which he immediately applied to have the judgment set aside, on grounds of non-service of Court process on the Appellant, non-compliance with the rules of Court, lack of fair hearing and lack of jurisdiction which was strongly opposed to by the Respondent.
The Appellant’s motion filed on the 14th of November, 2011 prayed for the following reliefs-
(a) An order of the Honourable Court setting aside its judgment entered in suit no HAD/86/2011.
(b) An order of the Honourable Court extending the time within which the Applicant may enter appearance.
(c) An order extending the time to file the Notice of Intention to defend.

And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.

The affidavit in support of the motion sworn to by the defendant Olugboyega Isijola showed by paragraph 2 that the defendant was not served with the originating Summons whatsoever, and that there was no pasting of the Writ of Summons at his house at anytime. That he is interested in contesting this suit in Court.
The Plaintiff filed a counter-affidavit in opposition to the motion. After the hearing of the application, in his Ruling delivered on the 13th March, 2012 the learned trial Judge refused the application. He held in part of his Ruling thus:
The Supreme Court held in Bank of the North V. Intra Bank S.A (1969) 1 ANLR 91 that:-
“We reiterate that judgment entered in the Undefended List is a judgment entered on the merits and is not a default judgment. No motion therefore to set aside may be entertained. We support the view taken in the above mentioned cases that judgment entered and passed on the Undefended List cannot be set aside by way of motion. There must be a fresh action or an appeal depending on the circumstances of the case”.

On the issue of the service of the originating process, the learned trial Judge held that:-
“The affidavit of service filed by the bailiff is unassailable and not having been controverted by the filing of a counter-affidavit it is deemed as proper and valid”

The mode of service adopted is provided for in the Ekiti state High Court Civil Procedure Rules.
The learned trial Judge refused the application. The Appellant felt unhappy with the turn of events, he filed a Notice of Appeal against the Ruling as well as the Judgment.

The Notice of Appeal filed on 20th day of May, 2013 is on pages 51 -54 of the record.
The grounds of appeal are as follows:-
GROUND 1
(1) The learned trial judge erred in law when he assumed jurisdiction and entered judgment against the Appellant in the absence of any/or proper service of the originating processes on the Appellant.

PARTICULARS OF ERROR
(i) The originating processes were allegedly served pursuant to an order of substituted service, to wit by pasting.
(ii) The order for substituted service merely directed the pasting order at Ogotun-Ekiti simpliciter with no particular address for service.
(iii) Judgment was based on a purported substituted service at no particular address.
(iv) The Appellant was not aware that a suit was pending against him until after judgment was entered.
(v) The Appellant was denied his Constitutional right to fair hearing.
(vi) The condition precedent to the trial Court’s exercise of jurisdiction was not fulfilled.

GROUND 2
(2) The learned trial Judge erred in law when he dismissed the Appellant’s application to set aside his judgment and thereby arrived at a wrong decision.

PARTICULARS OF ERROR
(I) Judgment on the Undefended List or under any procedure whatsoever is liable to be set aside where a party has not been served or properly served with the Court processes before judgment is entered against him.
(II) Failure to effect proper or any service at all of a Court process on a party to a suit strikes at the root of the jurisdiction of the Court and vitiates the proceedings no matter how brilliantly conducted.
(III) The averments in the Appellant’s affidavit relating to no and/or improper service of Court processes and hearing notice were not controverted by the Respondent or even the bailiff of the trial Court.
(IV) The averments relating to non-service and/or improper service was to all intents and purposes a challenge to and indeed impugned the affidavit of service sworn to by the Court bailiff.

GROUND 3
(3) The learned trial Judge erred in law when he held as follows:-
“Judgment is hereby given to the Plaintiff and against the Defendant in the sum of Three Million Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only being the outstanding balance advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons which sum has remained unpaid by the Defendant upon the default of his recommended person despite repeated demands”. Without any evidential basis thus leading to a miscarriage of justice.

PARTICULARS OF ERRORS
(i) There is nothing on record to justify the burden placed on the Appellant in the judgment.
(ii) The evidence before the Court did not support the findings/holding of the trial Judge
(iii) The Appellant is not a Guarantor for the beneficial of Micro Credit that he only mentored.

Now Obafemi Adewale learned counsel for the Appellant has identified, formulated and submitted to this Court the following issues as arising for the determination of the appeal:
(1) Whether the learned trial Court was right to have assumed jurisdiction without service or proper service of the Originating Processes and/or any other processes on the Appellant. (Ground 1).
(2) Whether the learned trial judge was right to have dismissed the application to set aside a judgment entered on the Undefended List in the face of an affidavit denying service/proper service of the originating process and/or any other processes (Ground 2).
(3) Whether the learned trial Judge was not wrong to have given judgment on the ground that the Appellant gave an undertaking to repay in the event of default by the loan beneficiaries when there was no evidence of such an undertaking before the Court (Ground 3).

The learned counsel for the Respondent, Y. A. Alajo Esq had in the Respondent’s brief adopted similar issues for the determination of the appeal. I shall consider this appeal by reference to the issues as formulated by the Appellant.

ISSUE NO 1
Now, in his ruling, Hon. Justice A.K. Fowe stated:-
“An order granting leave to the Plaintiff to serve the Writ of Summons with the supporting affidavit and subsequently processes in this the Defendant by pasting on the wall or door of the last known place of abode or business address of the Defendant and without seeking or demanding of the Appellant for the address where the pasting was to be effected simply went on to deliver”.
“………. order for substituted service is also granted”

Now the Appellant has argued that it is trite that service of an originating process is the foundation of any action in Court and a plethora of cases have established that proceedings conducted in any action without any proper service is a nullity a waste of effort that amounts to nothing. See SGBN V. ADEWUMI (2003) 10 NWLR (PT 829) 526.

Learned counsel for the Appellant referred to the records of this appeal that it shows clearly that there was never an intention /offer to serve the Appellant with the originating or any other processes in this case. He based his assertion on the following salient observations on the face of the records that Right from page 1 of the record it can be observed that the ex-parte application sought leave
“to serve the Writ of Summons with supporting affidavit and SUBSEQUENT processes on the Defendant by pasting it on the wall or door of the last known place of abode or business address of the defendant” without mentioning any address.

The grounds for the application not only failed to mention where pasting was to be effected, it actually betrayed the ill-motive of the Respondent by stating clearly that the Defendant cannot be easily located for purposes of personal service of the processes in this suit. See page 2 of the Records.

To compound the Respondent’s case, the affidavit of Omowunmi Rukayat Adegboye in support of the motion Ex-parte paragraph 3 (vi) (vii) and (vii) thereof showed clearly that no previous effort was made to effect service personally and more importantly no address whatsoever was mentioned where the pasting was to be effected at Ogotun Ekiti.

The Writ of Summons dated 8th June, 2011 at page 5 of the record was merely addressed to “the Defendant Dr. Olugboyega Isijola of Ogotun Ekiti, Ekiti State”

There was no fixed address where the Writ was to be served, so ab initio there was no intention of effecting personal service as required by law. This is further borne out by the fact that the motion for substituted service was dated 7th June, 2011 (see page 2 of the record) and filed simultaneously with the Writ of Summons on 8th June, 2011 betraying the fact that there was never an intention to ATTEMPT personal service.

Now referring to the affidavit, learned counsel for the Appellant stated that the affidavit of service by T. H. Alade the Bailiff at page 20 told a lie on its face by stating that the Plaintiff (an Agency and a non natural person) pointed the Defendant to him/her at OGOTUN EKITI (again at no fixed address) where he/she delivered the processes to the Defendant Personally?
Even with the word “pasting” written three (3) times randomly on the page of the affidavit, the address where the pasting was purportedly effected in Ogotun-Ekiti was again not specified.

The learned trial Judge at page 21 of the record stated that there is proof of service on the Defendant” and went ahead to give judgment on that premises. See the case of SKEN CONSULT V. UKEY (1981) 1 SC 6.

Learned counsel for the Appellant, pointed out the fact that Ogotun-Ekiti is of the largest towns in Ekiti State with a large population, with several hundreds of houses on numerous streets, that the application to serve the Appellant by pasting at large in Ogotun-Ekiti should have aroused the suspicion of the learned trial Judge as to the real intentions of the Respondent. Further, the bailiff should have been made to state specifically where he actually pasted the process. The suspicion is further fuelled by the Notice dated 8th August, 2011 and 10th October, 2011 at pages 17 and 18 of the Record which predate the purported service of the Writ of Summons which the bailiff at page 20 claimed to have pasted on 18th October, 2011.
Learned counsel for the Appellant surmised from the above, that it is crystal clear that no service was ever effected on the Appellant of ANY PROCESSES in this action. He referred to paragraphs 4 and 5 of the affidavit of the Appellant at page 25 of the record.

Having failed to effect service of the Writ of Summons and other processes on the Appellant as required by law, learned counsel for the Appellant submitted that the trial Court had no jurisdiction to give the judgment that it delivered on 20th October, 2011 its jurisdiction not having been properly invoked due to the absence of such a vital factor as the service of the Writ of Summons on the Appellant. See FBN PLC V. TSA INDUSTRIES (2010) 15 NWLR (PT 1216) 247 at 302 para B -G., 309 -310 para G -B MADUKOLU V. NKENDILIM (1962) 2 SCNLR 341.

Learned counsel for the Appellant, further submitted that, the non service of the Writ of Summons and other processes on the Appellant deprived him of his constitutional right to fair hearing thus vitiating the entire “trial” and the judgment of the Court. See KOM LGA V. CG LTD (2012) 8 NWLR (PT 301)196 at 204 para D -E; TENO V. ADISA (2005) 1 NWLR (PT 993) 346.
He urged this Court to resolve issue one in favour of the Appellant.

The learned counsel for the Respondent in reaction on issue one conceded the fact that service of Court processes is a pre-requisite for the invocation of the Court’s jurisdiction and where there is no service, the Court cannot exercise any jurisdiction. He however submitted that the trial Court rightly assumed jurisdiction having satisfied itself of the proof of service of the originating processes on the Appellant.

Learned counsel for the Respondent argued that the learned trial Judge having been satisfied with the facts put before it granted the Respondent leave to serve the originating processes and the subsequent processes on the Appellant via substituted means to wit; pasting same at the last known place of abode of the Appellant in Ogotun Ekiti.

Learned counsel for the Respondent contended that the learned trial Judge was right to have assumed jurisdiction in the matter having been satisfied with the Affidavit of Service. Also considering the evidence before the Court in paragraphs 3 (vii) and (viii) of the affidavit of Omowunmi Rukayat.

Under the circumstances of this case, when there is a conflict on the facts as contained in two opposing affidavits, the learned trial Judge ought to have resorted to taking oral evidence in order to arrive at a decision whether the affidavit of service by a bailiff is conclusive proof of service of the process, and not merely a rebuttable presumption. Now the lower court came to a conclusion that the Appellant was properly served with the originating Summons. It is submitted in the affidavits before the trial Judge, there are conflicting facts on fundamental issues and to resolve the conflict the learned trial Judge was obliged to call oral evidence.

Now, where a process has been served, it is necessary for the court to have before it evidence of that fact. Service of the process especially the originating process is an essential condition, for the court to have the competence or the jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceedings including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That is why the proof of the service of the issue of the jurisdiction and competence of the court to adjudicate.
I am of the view that the affidavit of service by substituted means sworn to by a bailiff is not enough to prove that the Appellant was duly served with the originating Summons.
The affidavit sworn by the bailiff could not be sufficient proof of service of the process on the Appellant.

It is now elementary law that in the face of direct conflict on crucial and material facts, the learned trial Judge must call for oral evidence from the Defendant or such other witnesses as the parties may call.

The trial Court was in error to have glossed over the issue and believe the averments of the bailiff. The finding of the trial Judge is perverse since it is not supported by tested evidence on the printed record. I am of the view there was no material available to enable the lower court resolve the differences as contained in the two affidavits, recourse must be had to calling oral evidence to arrive at the truth whether the Appellant was served with the originating process or not.

In any event the lack of proper service of the originating process is a threshold issue of jurisdiction which the Court ought to decide first, in this case the aggrieved Appellant complained of non service of the process, he raised a fundamental issue which goes to the jurisdiction and the competence of the Court to enter the judgment. In such a case, where the Appellant proves non service on him, the whole proceeding becomes a nullity and the trial Court has the jurisdiction to set it aside. It needs to be emphasized that it is now settled law, that the failure to serve process where the service of process is required such as in this case, is a failure which goes to the roots of the case. See CRAIG V. KANSSEN (1943) KB 256.

I wish to note that it is the service of the process of the Court on the Appellant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the Court is a condition precedent to the hearing of the suit.

Therefore if there is a failure to serve the process, where the service of the process is required the person affected by the order, but not served with process is as mentioned above entitled ex debitio justitiae to have the order set aside as a nullity, see MBADINUJU V. EZUKA (1994) 8 NWLR (PT 364) 5. Now, there is no doubt that the judgment in this case, the Appellant wanted to set aside was a judgment obtained against the appellant on the undefended list. A judgment entered on the undefended list is a judgment entered on its merits, and is not judgment entered on default.

There is indeed inherent power for a court of record to set aside its judgment entered into in a default of taking any procedural step, such as in default of appearance, generally called default judgment as Lord Atkin put it in EVANS V. BARTLAM (1937) AC 480;
“The principle obviously is that unless the court has pronounced a judgment upon the merits, or by consent, it is to have the power where that has only been obtained by a failure to follow any rules of procedure”
But however, if the judgment is a nullity the court which made it can set it aside, on a motion suo motu or on an application by any party affected by it. See LAWANI ALADEGBEMI V. JOHN FASANMADE (1988) 3 NWLR (PT 81) 129.

I accordingly resolve issue number one (1) and two (2) against the Respondent. Under the circumstances, the trial Court was in error to have held that it could not set aside the judgment in this case merely because the judgment was obtained under the Undefended List Procedure, what the authorities state is that judgment on the Undefended List is a judgment on the merits and cannot be set aside, as merely a default judgment entered in the absence of a party or in the default of a Defendant to take a procedural step.

On issue three, whether the learned trial Judge was not wrong to have given judgment on the ground that the Appellant gave an undertaking to repay in the event of default by the loan beneficiaries when there was no evidence of such an undertaking before the court. At this stage, the issues raised here have been already adequately dealt with in this judgment. The trial court lacked jurisdiction, competence to have entertained the matter ab initio. You cannot put something on nothing. UAC V. MACFOY (1962) Appeal cases 152

Having resolved issues 1 and 2 in favour of the Appellant this appeal is allowed.

The judgment of the lower court delivered on the 20th of October, 2011, in Suit No. HAD/86/2011: EKITI STATE MICRO CREDIT AGENCY V. DR OLUGBOYEGA ISIJOLA.

I also set aside the Ruling of the lower court delivered in the 13th of March, 2012.

The case file is to be remitted back to the Chief Judge of Ekiti State for trial de novo before another Judge.
Costs of N50,000.00 in favour of the Appellant.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Akinbami, JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

From the facts of the case, there was no proper service of the originating processes, as these processes did not bear fixed address of the Appellant. More so, when an order for substituted service was made by the lower court to paste the writ of summons and subsequent processes on the wall or door of the last known address of the defendant, the address of service was not mentioned. “The Defendant, Dr. Olugboyega Isijola of Ogotun Ekiti, Ekiti State,” which appeared on the writ of summons is clearly not a fixed address.

On application to set aside the judgment, the learned trial Judge held that judgment entered on the undefended list is a judgment on the merit and can therefore not be set aside. This is clearly wrong. As a general rule, every court has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision. This jurisdiction may be exercised where, for instance, the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and renders same incompetent and invalid. See: ALHAJI TAOFEEK ALAO V. A.C.B. LTD. (2000) 2 SCNQLR 1067 at 1071; SALAMI OMOKEWU & ORS V. ABRAHAM OLABANJI & ANOR (1996) 3 NWLR (PT.435) 126; SKEN CONSULT (NIG) LTD V. UKEY (1981) 1 SC 6.

Court’s jurisdiction is only activated by proper service of processes on parties. In the instant case, there was no proper service on the ground that there was no fixed address for service on the Appellant. The lower court therefore had the power to set aside its decision and make necessary consequential orders that the justice of this case demands. The learned trial Judge’s failure to set aside its judgment occasioned a miscarriage of justice to the Appellant.

For this short comment and fuller reasons in the lead judgment, I allow the appeal, and abide by the consequential orders made in the lead judgment including order as to cost.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I entirely agree that the instant appeal should be allowed. My learned brother, Fatima Omoro Akinbami, JCA has commendably and comprehensively considered all the salient issues raised for determination in this appeal and has reasoned and reached conclusion which I will with due respect adopt as mine in allowing the appeal. I also thereby allow the appeal and abide by the consequential orders made in the said lead judgment, inclusive of the order regarding costs.

Appearances

Mr. Ezekiel Agunbiade with Abel Emeka Onu EsqFor Appellant

AND

Mrs. O. T. Olatunbosun (Legal Officer Ministry of Justice, Ekiti State)For Respondent