CHIEF MARCUS OKOI v. BMIL INTERNATIONAL INC. & ANOR
(2016)LCN/8500(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of April, 2016
CA/C/78/2013
RATIO
EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS
It is elementary Law that the burden is on the Plaintiff to prove that there was a contract between him and the Defendant and that the contract was breached to his disadvantage. Thereafter, the Plaintiff has to lead evidence to prove damages. PER PAUL OBI ELECHI, J.C.A.
DAMAGES: PRINCIPLES GUIDING AWARDING DAMAGES IN AN ACTION ON BREACH OF CONTRACT
In awarding damages for an action founded on breach of contract which the trial Court has declared as proved, the rule to be applied is restitution in intergrum in so for as the damages are not too remote, the Appellant in this case shall be restored as far as money can do it to the position in which he would have been if the breach had not occurred. See the case of Cameroon Airlines v. Otutuizu (supra), C.B.N. v. Backiti Construction. Ltd. (2011) 5 NWLR (Pt. 1240) 203 at 208.
The term “Restitutio in integrum” as applied in Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296-309 is a common Law doctrine proclaiming the object and limits of the relief for breach of contract as a judicial endeavour to restore, as far as money can do it, the Plaintiff in the position in which he would have been if the breach had not occurred. That denotes how far the Law would go to redress a contractual wrong for less of bargain which in an appropriate metaphor is the borderline of the remoteness of damages beyond which no relief will be granted. What a Plaintiff must do to reap the benefit of the gesture held out by that doctrine is laid down by the principle of Odumosu v. A.C.B. (1976) 6 ECSLR page 435, 440 – 441 and kindred other cases that special damages must be proved strictly. The result is that there can be no restorations to the position of a pre-contractual breach in vacuo. Its fulfillment is conditioned by the rule on the standard of proof for special damages such as one cannot make an omelette without breaking the eggs. In a proper Application of the legal principles on the assessment of damages for breach of contract, you cannot apply the doctrine of restitution in integrum by throwing away the standard of proof as the only platform through which a Plaintiff can vide to the domain of restoration. Therefore, the propriety of assessment of damages awarded by a Learned trial Judge will depend on how far he was able to harmonize the principle laid down in Okongwu v. NNPC (supra) and Odomosu v. A.C.B. (supra). Indeed, the measure of general damages in terms of money is a matter for a Judge. See Omonuwa v. Wahabi (1974) 4 S.C. 37. It is always necessary for the Judge to make his own assessment of the quantum of such damage. See Dumez v. Ogboli (1973) 3 SC 196. PER PAUL OBI ELECHI, J.C.A.
DAMAGES: HOW SHOULD SPECIAL DAMAGES BE PROVEN
To entitle a claimant (i.e. the Appellant) to Judgment of the Court for loss of profit, the special damage must be strictly proved. See Uwah Printers Ltd v. Investment Trust Ltd. (1988) 5 NWLR (Pt. 92) 110, K. O. Odomosu v. A.C.E. (1976) 11 S.C. 55.
The Onus is on the Appellant to lead credible evidence to prove the anticipated profit of N3,564,000.000. A priori the Onus is on the Appellant to establish the accuracy of the projected gross profits in Exhibit N tendered in proof of the claim. So if for any reason, evidence which would help the trial Court to assess the accuracy of the projected profits is inadequate, lacking or not convincing, it is the Appellant who will fail in his claim for anticipated profit. In this matter therefore, I do not think that it is sufficient to say that since Exhibit N has been tendered and admitted in evidence and that the said exhibit N was not challenged, it must be acted upon. Exhibit N was therefore subjected to scrutiny by the trial Court and its contents were in the process to do so as was done in the present case be rejected by the trial Judge. See Attorney-General Oyo State & Anor (1989) LPELR-625 (SC).
There was no oral and convincing evidence on how the projected profit of N1,500,000, was arrived at. This to my humble view is no proof of any special damage. What is required of a party claiming special damage is that he should establish his entitlement by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise, the general Law of evidence as to proof by prepondence or weight used in civil cases will operate. And by the way, it would amount to double counting to award general damages of N10 Million as already granted by the trial Court and also award the anticipated profit. PER PAUL OBI ELECHI, J.C.A.
APPEAL: INTERFERENCE WITH FINDINGS OF FACTS; CIRCUMSTANCES THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS MADE BY THE TRIAL COURT
It is well established in a long line of cases that an Appellate Court will not interfere with the findings of facts by a trial Court, a fortiori, the concurrent findings of fact by the trial Court and the appellate Court below. See Ude v. Ojechemi (1995) 8 NWLR (Pt. 412) 152. This is the general principle dictated by the very fact that the trial Court was pre-eminently placed to hear and see the parties and their witness and evaluate their evidence and demeanour to arrive at what to that Court is the truth of the case. There are however exceptions to this rule. See Olugbode & Anor v. Samgodeyi (1996) 4 NWLR (Pt. 444) 500.
Exceptions include where there is simple evidence and the trial Judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial Court to deal with the facts and to make proper findings. In the instant case, I do not find anything perverse or any misapplication of the Law as to warrant my interference in this matter. PER PAUL OBI ELECHI, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CHIEF MARCUS OKOI
(Trading under the name and style of Omilakwa & Sons Enterprises) Appellant(s)
AND
1. BMIL INTERNATIONAL INC.
(A subsidiary of Balmac International Inc.)
2. FIRST BANK OF NIGERIA PLC Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Calabar Division of the High Court of Cross River State presided over by His Lordship Honourable Justice Obojor Oga, delivered on the 6th day of December, 2012.
The Brief facts of this case according to the Appellant are that by a Writ of Summons filed contemporaneously with the Statement of Claim, the Appellant instituted Suit No.HC/156/2008 on the 12th day of May, 2008 at the Calabar Judicial Division of the Cross River High Court claiming the following reliefs jointly and severally against the Respondents namely:
a) Special damages of N105,444,225,000.00 being the present value of his investment outlay and N3,564,000,000.00 being less of profit pleaded in the Appellants Amended Statement of Claim of 5th May, 2010.
b) General damages of N1,500,000.00 bringing the total damages to N5,169,444,225.00.
The processes were duly served on the Respondents. The 1st Respondent was served by substituted means i.e. by UPS courier services on the 18th August, 2008. The 2nd Respondent was duly served
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accordingly. The 1st Respondent never showed up appearance all through the hearing of the suit at the trial while the 2nd Respondent entered a conditional appearance through Counsel on the 23rd day of September, 2008. The Appellant at the trial on the 27th day of March, 2009, applied for a pre-trial conference and served same Application on the Respondents who failed and or neglected to attend Court. Whereupon Judgment was entered for the Appellant as per his claim by Eyo E. Ita J. on the 8th day of May, 2009.
It was when an order for Garnishee Nisi was made against the 2nd Respondent’s account with the Central Bank of Nigeria that they woke up from their slumber and filed an Application to set aside the Judgment of 8th May, 2009.
The Lower Court in his wisdom granted the Application on the 22nd May, 2009 and as a result the 2nd Defendant filed an Amended Statement of defence on the 17th February, 2010 denying liability to the Appellant. Further, a consequential Amended Statement of Claim pursuant to the Order of the Court was made on the 19th April, 2010, and filed on the 6th May, 2011 and all documents tendered and marked as
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Exhibits.
At the trial, the Appellant testified in person while the 2nd Respondent called a lone witness – Felix Asuquo Effiom. At the end of trial, Judgment was delivered on the 6th day of December, 2012. It is against this Judgment that the Appellant is appealing.
To argue the appeal, the Appellant distilled (three) 3 issues for determination:
a. Whether the Appellant is not entitled to the grant of all his reliefs sought in his Amended Statement of claim having been held by the trial Judge to have established a breach of contract against the Respondents.
b. Whether in established cases of breach of contract, it is inappropriate to award special and general damages which naturally flow from the breach.
c. Whether the 2nd Respondent is not liable in the instant case in view of the fact that it was at all times the financial adviser to the Appellant on international transaction including the one in issue here.
In his own wisdom, Appellant’s Learned Counsel opted to argue issues 1 & 2 together. Issue 1 is distilled from Grounds 1 of the Notice of Appeal while Issue 2 is distilled from Ground 2 of the Notice and Grounds
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of Appeal.
On the above issues, it is Learned Appellant’s submission that the Appellant submission that the Appellant had sufficiently pleaded special damages by specifically particularizing and itemizing them clearly in Paragraphs 29 & 30 of his Amended Statement of Claim and yet the trial Judge refused to award damages but merely awarded Ten Million naira as General Damages even when a breach of the contract has been established.
According to Learned Counsel in awarding damages founded on breach of contract which has been proved, the rule to be applied is restitution in intergrum in so for as the damages are not too remote. This is to compensate the Appellant for the loss suffered. See the case of Cameroon Airline v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512 at 551; CBN v. Backiti Construction Ltd. (2011) 5 NWLR (Pt. 1240) 203 at 208.
Learned Counsel then submitted that the intent and purpose of the Appellant entering into the contract of supply of 50 ton Cold room by the 1st Respondent to him which was facilitated by the 2nd Respondent was for him to make profit. The Appellant he said spent money to purchase the Cold room but a
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faulty cold room with incomplete parts was supplied to him by the Respondents. All these facts he stated were all pleaded in Paragraphs 29 and 30 of the Appellant’s Amended Statement of Claim. Evidence was led on these Paragraphs and Exhibit N which was pleaded in Paragraph 29 of the Amended Statement of Claim and it was on the basis of these facts that the trial Judge held that the Appellants have established a case of breach of contract against the 1st Respondent. Since the trial Court has drawn wrong conclusion from proven facts, he is urging this Court in its appellate jurisdiction to vary the findings of fact, especially in Exhibit N pleaded in Paragraph 29 of the Amended Statement of Claim where the Appellant’s losses were tabulated, itemized and particularized. It was on the basis of this that the award of N10 million naira awarded to the Appellant as damages as contended by Appellant’s Counsel for such a fundamental breach is grossly inadequate and too low to restore the Appellant to the position he would have been if the contract had not been breached. See I.T.T.P.P. LTD. v. U.B.N. PLC (2006) 12 NWLR (Pt. 995) 483 at 488; Nwapgwu v. F.R.N. (2007) 2
5
NWLR (Pt. 1125) 203 at 206.
Learned Counsel then urged the Court to vary upwards the award of N10 Million Naira granted to the Appellant as damages as the amount is far too low and not even enough to place him in the position where he would have been had the contract not been breached. The award is not only arbitrary or perverse but has occasioned grave injustice to the Appellant.
The cold room supplied to the Appellant could not be put into use by the Appellant thereby making him loose an income of N3,564,000,000.00. Therefore, the inability to supply the Appellant with a cold room he had ordered amounted to a breach of contract which entitles the Appellant to an award of damages which naturally flows from the breach. Learned Appellant’s Counsel then urged the Court to resolve issues 1 & 2 in favour of the Appellant.
ISSUE 3
“Whether the 2nd Respondent is not liable in the instant case in view of the fact that it was at all times the financial adviser to the Appellant on international transactions including the one in issue here”.
According to Learned Appellant Counsel, he stated that all through the transaction for
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the purchase of the cold room, it was the 2nd Respondent that acted as a go-between by taking money from the Appellant’s account and paying same to the 1st Respondent who failed to supply the cold room because at no time did the Appellant make direct payment to the 1st Respondent. Every payment to the 1st Respondent was done by the 2nd Respondent who assisted the Appellant in getting foreign exchange and sending same to the 1st Respondent while debiting Appellant’s account with them.
It must be appreciated that the relationship of a customer/banker relationship is contractual in nature. That from the onset, the 2nd Respondent was actively involved in the transaction until it failed as a result of a faulty cold room of 50 ton supplied by the 1st Respondent. He then submitted that if the trial Court had properly gleaned through the contract, it would have reached a different decision in respect of the 2nd Respondent and the amount of damages awarded which made a mockery of the whole Judgment.
?On the basis of that, Learned Appellant Counsel submitted that the Judgment of the trial Court is perverse as it has occasioned a miscarriage of justice to
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the Appellant.
He then urged the Court to resolve issue No. 3 in favour of the Appellant and allow the appeal and set aside the Judgment of the Lower Court delivered on the 6th December, 2012.
On his own, the 2nd Respondent Counsel formulated a lone issue for determination:
“Whether having regard to the pleadings of the parties in this case and the evidence led during trial, the Lower Court was right when it held in its judgment of 6th December, 2012 that the Appellant had failed to establish his claim against the 2nd Respondent herein”.
Learned Counsel submitted right away that the Lower Court was right when in its Judgment of 6th December, 2012 that the Appellant had failed to establish his claim against the 2nd Respondent. That a careful examination of this case will establish the following:
1. The Appellant requested the 2nd Respondent to open a letter of credit on his behalf and to purchase foreign exchange from the Central Bank of Nigeria in the sum of USD 32,335,000 and debit his Account No. 00102206865 with the naira equivalent.
2. The foreign exchange was purchased and the Appellant account duly debited with the
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naira equivalent as requested.
3. The letter of credit requested was opened in favour of the 1st Respondent in New York, USA for the supply of a 50 ton walk in Freezer/cold room.
4. The crux of the Appellant’s claim in the Lower Court was that the 1st Respondent supplied a defective and incomplete freezer/cold room to him.
In view of the above, the Learned 2nd Respondent Counsel submitted that the transaction leading to the commencement of the suit in the Court below was an international commercial documentary credit transaction which is of four separate and independent type of contract which the Appellant has failed to establish even one of them. See Akinsanya v. U.B.A. Ltd. (1986) 2 NSCC 1968-1028.
From the above therefore, Learned 2nd Respondent Counsel submitted that the Appellant has failed to establish his claim against the 2nd Respondent and urged the Court not to disturb the findings of the Lower Court. See Joseph Oyebode & Anor v. Elder Simon Awe & Ors (2012) All FWLR (Pt. 645) 358. Also even though the Appellant claimed that he is an illiterate, but he failed to establish it.
Arguing further, 2nd Respondent
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contended that the only legal relationship between the Appellant and the 2nd Respondent arose from the contract between the Appellant as buyer and the 2nd Respondent as the issuing bank for the opening of the letter of credit. On the other hand, Learned 2nd Respondent counsel maintained that the suit leading to the present appeal was commenced because of the supply of a defective cold room by the 1st Respondent which is a breach arising from the contract between the buyer (Appellant) and the supplier, the 1st Respondent.
On the basis of the above, he submitted that there is ample evidence on record to support the findings of the Lower Court that the 2nd Respondent creditably discharged its contractual obligation towards facilitating the purchase of foreign exchange for the Appellant to open a letter of credit in favour of the 1st Respondent for the supply of the freezer/cold room.
?Even from Paragraph 25 of the Appellant Amended Statement of Claim, it could be seen that it was the 1st Respondent who acted as the consultant and adviser to the Appellant with respect to the purchase of the said freezer/cold room and not the 2nd
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Respondent.
In view of all the above, Learned 2nd Respondent Counsel then urged the Court to resolve the sole issue in their favour and consequently to allow the appeal and upheld the Judgment of the Lower Court. He stated earlier on in the course of this Judgment, the 1st Respondent never showed any appearance all through the hearing of this suit at the Lower Court.
As a result, the Appellant’s Counsel filed a Motion on Notice praying for an order of Court to allow and determine this appeal on the Appellants Brief of Argument and 2nd Respondent Brief of Argument alone, the 1st Respondent having failed/neglected and refused to file its Brief. The said Leave of Court was granted and the appeal was therefore heard without the 1st Respondent Brief of Argument. It is elementary Law that the burden is on the Plaintiff to prove that there was a contract between him and the Defendant and that the contract was breached to his disadvantage. Thereafter, the Plaintiff has to lead evidence to prove damages.
However, in the instant case, we have passed the stage as enunciated in the above principle because the trial Judge on page 209 – 210 of his
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Judgment in the Record of Appeal stated thus:
“I am satisfied from the evidence available to me that the 1st Defendannt (1st Respondent) is in breach of the contract between it and the Appellant by supplying a cold room with an incomplete component thereby rendering it incapable of serving the purpose it was meant for. I therefore held the 1st Respondent liable for the breach of contract.”
Against the background above, the Learned trial Judge awarded the sum of Ten Million Naira as general damages. The said amount according to the Appellant is so meager and unable to restore the Appellant and compensation for the loss suffered.
In awarding damages for an action founded on breach of contract which the trial Court has declared as proved, the rule to be applied is restitution in intergrum in so for as the damages are not too remote, the Appellant in this case shall be restored as far as money can do it to the position in which he would have been if the breach had not occurred. See the case of Cameroon Airlines v. Otutuizu (supra), C.B.N. v. Backiti Construction. Ltd. (2011) 5 NWLR (Pt. 1240) 203 at 208.
The term “Restitutio in
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integrum” as applied in Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296-309 is a common Law doctrine proclaiming the object and limits of the relief for breach of contract as a judicial endeavour to restore, as far as money can do it, the Plaintiff in the position in which he would have been if the breach had not occurred. That denotes how far the Law would go to redress a contractual wrong for less of bargain which in an appropriate metaphor is the borderline of the remoteness of damages beyond which no relief will be granted. What a Plaintiff must do to reap the benefit of the gesture held out by that doctrine is laid down by the principle of Odumosu v. A.C.B. (1976) 6 ECSLR page 435, 440 – 441 and kindred other cases that special damages must be proved strictly. The result is that there can be no restorations to the position of a pre-contractual breach in vacuo. Its fulfillment is conditioned by the rule on the standard of proof for special damages such as one cannot make an omelette without breaking the eggs. In a proper Application of the legal principles on the assessment of damages for breach of contract, you cannot apply the doctrine of restitution in
13
integrum by throwing away the standard of proof as the only platform through which a Plaintiff can vide to the domain of restoration. Therefore, the propriety of assessment of damages awarded by a Learned trial Judge will depend on how far he was able to harmonize the principle laid down in Okongwu v. NNPC (supra) and Odomosu v. A.C.B. (supra). Indeed, the measure of general damages in terms of money is a matter for a Judge. See Omonuwa v. Wahabi (1974) 4 S.C. 37. It is always necessary for the Judge to make his own assessment of the quantum of such damage. See Dumez v. Ogboli (1973) 3 SC 196.
This Court has been called upon to vary upwards the award of Ten Million Naira granted to the Appellant as damages at the trial Court as the amount awarded is far too low and not even enough to place the Appellant in a position where he would have been had the contract not been breached as the award is not only arbitrary or perverse but has occasioned grave miscarriage of justice to the Appellant according to Learned Counsel.
Paragraphs 29 & 36 of the Appellant’s Brief of Argument show alleged particulars of special damages thus:
“29 – The
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Claimant has engaged the services of a firm of chattered accounts (sic) ORO ASANGA NYONG & CO. to compute the Claimants losses as a result of the Defendants default in fulfilling their contractual obligations to him”.
The report of the said firm shall be relied upon at the trial.
Paragraph (30) where upon, the Claimant claims against the Defendant jointly and severally as follows:
1. Special damages
A. Present value of outlay ? N105,444,225 investments.
B. Loss of profit – N3,564,000,000
General damages – N1,500,000
Total ? N5,169,444.225.
To entitle a claimant (i.e. the Appellant) to Judgment of the Court for loss of profit, the special damage must be strictly proved. See Uwah Printers Ltd v. Investment Trust Ltd. (1988) 5 NWLR (Pt. 92) 110, K. O. Odomosu v. A.C.E. (1976) 11 S.C. 55.
The Onus is on the Appellant to lead credible evidence to prove the anticipated profit of N3,564,000.000. A priori the Onus is on the Appellant to establish the accuracy of the projected gross profits in Exhibit N tendered in proof of the claim. So if for any reason, evidence which would help the trial
15
Court to assess the accuracy of the projected profits is inadequate, lacking or not convincing, it is the Appellant who will fail in his claim for anticipated profit. In this matter therefore, I do not think that it is sufficient to say that since Exhibit N has been tendered and admitted in evidence and that the said exhibit N was not challenged, it must be acted upon. Exhibit N was therefore subjected to scrutiny by the trial Court and its contents were in the process to do so as was done in the present case be rejected by the trial Judge. See Attorney-General Oyo State & Anor (1989) LPELR-625 (SC).
There was no oral and convincing evidence on how the projected profit of N1,500,000, was arrived at. This to my humble view is no proof of any special damage. What is required of a party claiming special damage is that he should establish his entitlement by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise, the general Law of evidence as to proof by prepondence or weight used in civil cases will operate. And by the way, it would amount to double counting to award general damages of
16
N10 Million as already granted by the trial Court and also award the anticipated profit. It was indeed on the basis of the above that the learned trial Judge described Exhibit N as a mere piece of evidence which has no backing and was consequently not sufficient enough to avail the Appellant of his claim for special damages.
There was therefore no wrong impression by the trial Judge on Exhibit N or Paragraphs 29 and 30 of the Amended Statement of Claim as there was no evidence in support of same.
With the above, will this Court subscribe to the invitation by the Appellant to vary upwards the award of Ten Million Naira granted to the Appellant as damages of the trial Court on the basis that it is too low and not even enough to place the Appellant in a position where he could have been had the contract not been breached. It is well established in a long line of cases that an Appellate Court will not interfere with the findings of facts by a trial Court, a fortiori, the concurrent findings of fact by the trial Court and the appellate Court below. See Ude v. Ojechemi (1995) 8 NWLR (Pt. 412) 152. This is the general principle dictated by the very
17
fact that the trial Court was pre-eminently placed to hear and see the parties and their witness and evaluate their evidence and demeanour to arrive at what to that Court is the truth of the case. There are however exceptions to this rule. See Olugbode & Anor v. Samgodeyi (1996) 4 NWLR (Pt. 444) 500.
Exceptions include where there is simple evidence and the trial Judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial Court to deal with the facts and to make proper findings. In the instant case, I do not find anything perverse or any misapplication of the Law as to warrant my interference in this matter.
In view of all the above, I hereby resolve issues 1 and 2 of the Appellants Brief of argument in favour of the Respondent and against the Appellant. Appellant’s issue No. 3 and the 2nd Respondent’s sole issue are almost one and the same. However, it appears to me that the 2nd Respondent sole issue can take care of Appellants issue No. 3. I shall and hereby adopt 2nd Respondent sole issue i.e.:
“Whether having regard to the pleadings of the parties in this case
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and the evidence led during trial, the Lower Court was right when it held in its judgment of 6th December, 2012 that the Appellant has failed to establish his claim against the 2nd Respondent”
The bone of contention in the contract for the supply of a 50 ton walk in freezer was between the Appellant and the 1st Respondent. Also in contention is that Appellants in the Lower Court that the 1st Respondent had supplied a defective and incomplete freezer/cold room to the Appellant. The 2nd Respondent creditably discharged its contractual obligation towards the Appellant with regards to facilitating the purchase of foreign exchange for the Appellant to open a letter of credit in favour of the 1st Respondent for the supply of the said freezer/cold room.
With the basic level of commitment of the 2nd Respondent in this matter, I also do not see how the Appellant can be entitled to damages against the 2nd Respondent. The 2nd Respondent did not supply the defective freezer/cold room. Their responsibility was only to facilitate the provision of foreign exchange and there is nothing on record to show the contrary. I therefore agree with the learned trial
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Judge that no case was made out against the 2nd Respondent by the Appellant to entitle it to any award of damages.
Therefore, I hereby resolve the 3rd issue in favour of the 2nd Respondent and hereby hold that the Appellant has failed to establish a claim against the 2nd Respondent.
Having resolved the three issues in this appeal, against the Appellant, this appeal therefore is not sustained and thereby fails. It is hereby dismissed accordingly. The Judgment of the Lower Court is hereby affirmed.
I assess and fix cost of N50,000 in favour of the 2nd Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity of reading in draft the judgment read by my learned brother, P. O. ELECHI, JCA. I agree with his reasoning and conclusion.
Having resolved the three issues against the Appellant and in favour of the Respondents, I agree that this appeal is unmeritorious and that it be dismissed.
The judgment of the trial Court is hereby affirmed. I abide by the order as to costs made by ELECHI, JCA in the lead judgment.
ONYEKACHI AJA OTISI, J.C.A.: I was
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privileged to read in advance, a draft copy of the lead Judgment in this appeal just delivered by my learned brother, Paul Obi Elechi, J.C.A. I am in complete agreement with his reasoning and conclusion in dismissing this appeal.
I adopt his reasoning as mine and abide by the orders in the lead judgment, including the orders as to costs.
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Appearances
Eno Edet, Esq.For Appellant
AND
E. O. E. Ekong, Esq. with him, O. A. Okon, Esq., I. M. Anana, Esq.For Respondent
