UNION BANK OF NIGERIA PLC v. MR. EMMANUEL EGBOKHARE & ANOR (2017)

UNION BANK OF NIGERIA PLC v. MR. EMMANUEL EGBOKHARE & ANOR

(2017)LCN/9469(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of February, 2017

CA/B/213/2009

RATIO

EVIDENCE: POSITION OF THE LAW ON ADMISSIBILITY OF SECONDARY EVIDENCE IN RELATION TO CONTRACT IN PROCEEDING
The provisions of the law governing the admissibility of secondary evidence is provided for in Section 97 Subsection 1(a) (i) – (ii) and Subsection (b) – (h) of the Evidence Act Cap E14 Laws of the Federation 2004 now Section 89 (a) (i) – (ii) and (b) – (h) of the Evidence Act 2011. It provides as follows:-
Secondary evidence may be given of the existence, condition or contents of a document when – (a) the original is shown or appears to be in the possession or power – (i) of the person against whom the document is sought to be proved, or (ii) of any person legally bound to produce it, and when after the notice mentioned in Section 91 such person does not produce it; (b) (c) the original had been destroyed or lost and in the later case all possible search has been made for it; (d)(h)
A careful perusal of Section 89 of the Evidence Act set out above, when placed side by side with the Record of Appeal in this case, would reveal that there is no direct evidence before the Lower Court as to where the original of the document i.e. the original copy of the contract agreement dated 31/7/96 between the parties is or as to who is in possession of the original document.
Pursuant to the provisions of Section 89 of the Evidence Act 2011, the Appellant has a duty to lay the foundation as to where the original of the contract agreement dated 31/7/96 between the parties is. It is after this has been done that the photocopy which is a secondary evidence could be tendered in evidence in accordance with the provision of Section 91 of the Evidence Act 2011 which states thus:-
“Secondary evidence of the contents of the document referred to in Section 89 (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to legal practitioner employed by such party, such notice to produce it as is prescribed by law, and if no notice to produce is prescribed by law, then such notice as the Court considers reasonable in the circumstances of the case.
The contention of the Learned Counsel for the Appellant that the 2nd Respondents admission and the identification of the contract agreement made it appear that either the 2nd Respondent or his Counsel is in possession or appears to be in possession of the contract agreement cannot be correct. This is because, by the combined reading of Section 89 1(a), (i), (ii) and Section 91 of the Evidence Act 2011, a secondary evidence of a document can only be admissible when it is shown by evidence that the original is in possession of the opposite party or a person legally bound to produce same including Counsel acting for the opposite party. It is therefore clear, from the joint reading of Sections 89 and 91 of the Evidence Act 2011 that a notice to produce a document when served on a party does not itself entitle the opposite party to lead secondary evidence of the document unless possession of the original is shown or appears to be with the party served with the notice. PER JIMI OLUKAYODE BADA, J.C.A.

COURT: TO WHAT EXTENT IS THE POWER OF THE COURT TO RAISE ISSUES SUO MOTU
It is however settled law that a judge is not allowed to raise any issue suo motu and proceed to resolve same without calling on parties to address the Court on it. See DURUMUGO RESOURCES LTD V. ZENITH BANK PLC (2016) LPELR 40487. OMOKUWAJO V. F.R.N. (2013) 9 NWLR (Pt.1359) 300. PER PHILOMENA MBUA EKPE

COURT: EFFECT OF RAISING SUO MOTU ISSUES BY A COURT
Judicial authorities are well settled that once a Court raises an issue suo motu as in the instant appeal wherein the Court raised the issue of issuance of notice suo motu in his ruling on the admissibility of a document without affording the parties opportunity of being heard, the proceeding conducted thereon would be a nullity. In other words, the Court would be in error if it proceed to resolve such issue without affording the parties an opportunity of addressing it on the said issue. See ADEGOKE V. ADIBI (1992) 5 NWLR (Pt.242) 410; ATANDA V. LAKANMI (1974) 3 SC 109 AND KRAUS T. ORGANISATION LTD. V. UNICAL (2004) 25 WRN 1. PER MUDASHIRU NASIRU ONIYANGI, J.C.A

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

UNION BANK OF NIGERIA PLC – Appellant(s)

AND

1. MR. EMMANUEL EGBOKHARE

2. MR. ANTHONY NWELIH – Respondent(s)

JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of High Court of Justice, Delta State of Nigeria in Suit No. HCH/1/2003 (1) EMMANUEL O. EGBOKHARE (2) ANTHONY NWELIH AND UNION BANK OF NIGERIA PLC, delivered on the 30th day of March, 2009.

Briefly, the facts of the case are that the Respondents formerly the Plaintiffs at the Lower Court commenced this suit with two separate Writs of Summons against the Appellant. The suits were consolidated and heard jointly.

The Respondents? claim against the Appellant at the Lower Court are as follows:-

(i) That the purported dismissal of the Plaintiffs if any is null and void.

(ii) That the Plaintiffs are still in the employment of the Defendant.

(iii) An Order directing that Defendant should pay to the Plaintiffs their salaries, allowances and remuneration that have accrued to the Plaintiffs.

At the hearing before the lower Court, the 2nd Respondent testified first. The Appellant served a notice to produce a contract agreement dated 31/7/96 on the Respondents joint counsel which service was duly acknowledged by the

said counsel on the Appellant?s copy. And under cross-examination, the 2nd Respondent admitted that the terms of his employment with the Appellant were reduced to writing in a contract. He also identified the aforesaid contract agreement document when shown to him but denied that the signature on the document was his own. At that point, the Appellant sought to tender the document (photocopy of the contract agreement), the subject matter of the notice to produce, earlier served on counsel to the Respondents. Objection was taken by Respondents? counsel on the ground that the foundation was not laid for the admissibility of the said documents. Arguments were canvassed by both counsel.

In a Ruling delivered on 30/3/2009, the Lower Court held that although the document was relevant, but that there was no proof of service of the notice to produce and no proper foundation was laid in compliance with Section 97 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, for the document to be admissible through the 2nd Respondent at that stage of the proceedings.

The Appellant who is dissatisfied with the Ruling of the Lower Court

appealed to this Court.

The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduced as follows:-

?(1) Whether from the record, there was proof of service of the notice to produce and if this is answered in the affirmative, was the learned trial Judge right in raising suo motu the issue of non-service of the notice to produce when both parties did not raise or argue the issue in their submissions.

(2) Whether having held that the document sought to be tendered is relevant, the learned trial Judge was right in holding that proper foundation was not laid for the document to be admissible in compliance with the provisions of Section 97 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.?

The Learned Counsel for the Respondents in his own case formulated a lone issue for the determination of this appeal. The said issue is reproduced as follows:-

?Whether from the record there was proof of service of the notice to produce and if this is answered in the affirmative, was the learned trial Judge right in raising suo motu the issue of non service of

the notice to produce when both parties did not raise or argue the issue in their submissions.?

At the hearing of this appeal, the Learned Counsel for the Appellant stated that the Ruling appealed against was a Ruling of Delta State High Court delivered on 30/3/2009, and the notice of appeal was filed on 8/4/2009. He went further that the record of appeal was transmitted on 25/6/2009.

The Appellant?s brief of argument was filed on 24/9/2009 whilst the Respondents? brief of argument was filed on 13/11/2009.

The Learned Counsel for the Appellant adopted the said Appellant?s brief of argument as his argument in urging that the appeal be allowed.

Since counsel for the Respondents has filed the Respondent?s brief of argument and was served with hearing notice but he was absent from Court on the day of hearing, therefore, pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011, this appeal was treated as being duly argued.

I have carefully examined the issues formulated for the determination of the appeal by counsel for both parties. The issues formulated on both sides are similar. But since the

issue formulated on behalf of the Respondents is encompassed in the issues formulated on behalf of the Appellant, I will therefore rely on the Appellant?s issues formulated for the determination of this appeal.

ISSUES FOR THE DETERMINATION OF THE APPEAL

?ISSUES NO 1 AND 2 (Taken Together)

– Whether from the record there was proof of service of the notice to produce and if this is answered in the affirmative, was the learned trial Judge right in raising suo motu the issue of non-service of the notice to produce when both parties did not raise or argue the issue in their submissions.

– Whether having held that the document sought to be tendered is relevant, the learned trial Judge was right in holding that proper foundation was not laid for the document to be admissible in compliance with the provisions of Section 97 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.?

The Learned Counsel for the Appellant submitted that the learned trial Judge was in error when he held that there was no proof of service of the notice to produce. He contended that the Appellant duly filed a notice to produce the contract

agreement. He referred to page 45 of the Record of Appeal. He stated that Appellant?s Counsel served the notice to produce on 2nd Respondent?s Counsel on 21/7/08 which service was acknowledged by Respondent?s Counsel on the same day by endorsing his name, signature and date on the bottom left corner above the 2nd Respondent?s address for service, as evident on the face of the Appellant?s copy of the said notice to produce. He referred to page 46 of the Record of Appeal.

Learned Counsel for the Appellant argued further that this was made available to the Lower Court before the proceedings of 16/2/2009 were taken.

It was also argued by counsel for the Appellant that the issue of service of notice to produce was not contended by counsel for the parties in this appeal.

The Learned Counsel for the Appellant submitted that it is trite law that the original copy of a contract agreement dated 31/7/96 is best evidence being primary evidence. He also contended that a photostat copy of the document, is also admissible. He referred to Section 95 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. He referred to

the evidence of 2nd Respondent under cross-examination where he admitted that there is a contract between the Appellant and himself. He identified the contract agreement (photostat copy) as the one embodying the terms of the contract although denied the signature as his own (see page 41 lines 26 ? 29).

He relied on the case of:-

– FIRST BANK OF NIGERIA PLC VS. E.D. TSOKWA (2003) FWLR Part 153 Page 205 paragraphs G ? H and

– SECTION 97 (1) a (i) OF THE EVIDENCE ACT.

It was also contended on behalf of the Appellant that the 2nd Respondent and his Counsel impliedly did not deny being in possession or likely to be in possession of the document. He went further in his argument that the 2nd Respondent and his Counsel having failed to produce the document, that the failure creates the foundation for tendering and admission of the contract agreement. He also relied on Section 98 of the Evidence Act.

He went further in his argument that the 2nd Respondent?s admission of the contract agreement during cross-examination leaves the trial Court with no choice but to admit the secondary evidence of the contract agreement dated

31/7/96. He referred to the case of ? GAJI VS PAYE (2003) FWLR Part 163 Page 1 at 22 ? 23 paragraphs H ? A.

In his response, the Learned Counsel for the Respondents submitted that the admissibility of a document in evidence is based on relevancy and the Evidence Act. He went further that where a statute specifically makes a provision as a condition precedent to the admissibility of a document in evidence, such provision of the statute must be complied with. He relied on Section 97 (1) (a) (i) ? (ii) (b) ? (h) of the Evidence Act Cap E14 Laws of the Federation 2004.

He submitted that there is no evidence before the Court as to where the original of the document is or as to who is in possession of the original document.

He submitted that the learned trial Judge was right in refusing to admit the document.

It was also submitted on behalf of the Respondents that the service of the notice to produce a document on the opposite party does not ipso facto render the document admissible. He referred to Section 98 of the Evidence Act Cap E.14 Laws of the Federation 2004.

It was also submitted that the question as to

whether the original of the document sought to be tendered is in possession of the person served with the notice to produce is a matter of fact and not that of speculation. He went further in his argument that the decision of the learned trial Judge that the Appellant did not serve notice to produce on the Respondents, does not in any way occasioned any miscarriage of justice in the refusal to admit the document in evidence, since the condition precedent to the admissibility of the document in the circumstances of this case are lacking from the record.

He finally urged that the appeal be dismissed.

?In this appeal under consideration, a careful examination of page 46 of the Record of Appeal would reveal that the page is made up of a copy of notice to produce filed on behalf of the Appellant. And by the bottom left side of the document, the Learned Counsel for the Respondents signed on top of the place where it was written ?For service on the Plaintiff/Respondent c/o his counsel?. The Learned Counsel for the Respondents wrote ?Copy received by me? and signed with the date 24/7/2008 on the document.

The pertinent question at

this juncture is that could it be said that the Respondents? Counsel was not served with the notice to produce document contained on page 46 of the Record of Appeal?

I am of the view that the conspicuous presence of the acknowledgement and the absence of any argument by 2nd Respondent?s Counsel on the issue of service or non-service amounted to proof of service of the notice to produce on the 2nd Respondent?s Counsel.

Furthermore, a combined reading of Section 98 of the Evidence Act Cap 112 Laws of the Federation of Nigeria now Section 91 of the Evidence Act 2011 and the proviso to Rule 1 of Order 12 High Court (Civil Procedure) Rules 1988 as applicable in Delta State would reveal that a Legal Practitioner representing a party is empowered to make or receive service of Court processes (on behalf of the party) of processes which do not require personal service.

For ease of reference, the said Section 98 of the Evidence Act 1990 now Section 91 Evidence Act 2011 and the Proviso to Rule 1 of Order 12 of the High Court (Civil Procedure) Rules 1988 as applicable in Delta State are hereby set out as follows:-

Section 91 of

the Evidence Act 2011 provides thus:-

Secondary evidence of the contents of the documents referred to in Section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the Court considers reasonable in the circumstances of the case.

Also, the Proviso to Rule 1 of Order 12 provides thus:-

?provided that when a party is represented by a Legal Practitioner, service of notices, pleadings, petitions, orders, summonses, warrants and of all other proceedings, documents or written communications of which personal service is not required may be made by or on such legal practitioner or his clerk under his control.

In the circumstance, I am of the view that the learned trial Judge is wrong in holding that there was no proof of service.

Closely related to the view above is that counsel for both the Appellant and the Respondent did not contend the

issue of the service of the notice to produce which the learned trial Judge made an issue from and hinged his decision on lack of proof of service of the notice to produce.

It is trite law that it is wrong for a Court to make a case for either or both parties and then proceed to give Judgment on the case so formulated contrary to the case of the parties before it.

What the learned trial Judge ought to have done is that he should have invited both counsel to address him on the point i.e. on the issue service or non-service of the notice to produce. It is after the submissions by both counsel on the issue raised suo motu that conclusion can be made.

In other words, it is a fundamental principle of our law that a case must always be decided on the issues brought before the Court by the parties and not on what was raised by the Court ?suo motu?. If in the interest of justice, the Court raised an issue ?suo motu?, counsel to the parties must be given opportunity to address on it. This was not done by the learned trial Judge.

See the following cases:

– SADIKU VS A.G. LAGOS STATE (1994) 7 NWLR Part

355 Page 235;

– UDOGU VS EGWUATU (1994) 3 NWLR Part 330 Page 120;

– NNAMANI VS NNAMANI (1996) 3 NWLR Part 438 Page 591

– ADEOSUN VS BABALOLA (1972) 5 S.C. Page 292.

The learned trial Judge therefore erred in law in raising an issue suo motu and thereafter basing his decision on it.

See the following cases:-

– G.S. PASCUTO VS ADECENTRO NIG LTD (1997) 11 NWLR Part 529 Page 467 at 486 paragraphs C ? D;

– ISHOLA VS UBN (2005) All FWLR Part 256 Page 1202 at 1213 paragraph E;

– ADEBANJO VS BROWN (1990) 3 NWLR Page 661 at 675 paragraphs A ? B;

– JATAU VS AHMED (2003) FWLR Part 151 Page 1887 at 1894 paragraphs C ? D;

– IBRAHIM VS J.S.C. (1998) 12 SCNJ Page 255 at 290 ? 291 Lines 38 ? 40;

– NDIWE VS OKOCHA (1992) 7 NWLR Part 252 Page 129 at 139 paragraphs E ? F.

In the circumstance, Issue No. 1 is resolved in favour of the Appellant and against the Respondents.

The second issue for determination in this appeal is whether having held that the document sought to be tendered is relevant, the learned trial Judge was right in holding that proper foundation was not laid

in compliance with Section 97 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 for the document sought to be tendered to be admissible in evidence.

The provisions of the law governing the admissibility of secondary evidence is provided for in Section 97 Subsection 1(a) (i) ? (ii) and Subsection (b) ? (h) of the Evidence Act Cap E14 Laws of the Federation 2004 now Section 89 (a) (i) ? (ii) and (b) ? (h) of the Evidence Act 2011. It provides as follows:-

Secondary evidence may be given of the existence, condition or contents of a document when ?

(a) the original is shown or appears to be in the possession or power ?

(i) of the person against whom the document is sought to be proved, or

(ii) of any person legally bound to produce it, and when after the notice mentioned in Section 91 such person does not produce it;

(b)

or lost and in the later case all possible search has been made for it;

(d) ?

(h)

A careful perusal of Section 89 of the Evidence Act set out above, when placed side by side with the Record of Appeal in this case, would reveal that there is no direct evidence before the Lower Court as to where the original of the document i.e. the original copy of the contract agreement dated 31/7/96 between the parties is or as to who is in possession of the original document.

?Pursuant to the provisions of Section 89 of the Evidence Act

2011, the Appellant has a duty to lay the foundation as to where the original of the contract agreement dated 31/7/96 between the parties is. It is after this has been done that the photocopy which is a secondary evidence could be tendered in evidence in accordance with the provision of Section 91 of the Evidence Act 2011 which states thus:-

?Secondary evidence of the contents of the document referred to in Section 89 (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to legal practitioner employed by such party, such notice to produce it as is prescribed by law, and if no notice to produce is prescribed by law, then such notice as the Court considers reasonable in the circumstances of the case.?

The contention of the Learned Counsel for the Appellant that the 2nd Respondent?s admission and the identification of the contract agreement made it appear that either the 2nd Respondent or his Counsel is in possession or appears to be in possession of the contract agreement cannot be correct. This is because, by the combined

reading of Section 89 1(a), (i) ? (ii) and Section 91 of the Evidence Act 2011, a secondary evidence of a document can only be admissible when it is shown by evidence that the original is in possession of the opposite party or a person legally bound to produce same including Counsel acting for the opposite party.

It is therefore clear, from the joint reading of Sections 89 and 91 of the Evidence Act 2011 that a notice to produce a document when served on a party does not itself entitle the opposite party to lead secondary evidence of the document unless possession of the original is shown or appears to be with the party served with the notice.

A careful perusal of the Record of Appeal would reveal that there is no evidence that the Respondents is in possession of the original of the document sought to be tendered i.e. contract agreement dated 31/7/96.

The question as to whether the original of the document sought to be tendered is in possession of the person served with the notice to produce is a matter of fact and not that of speculation.

Therefore the service of notice to produce a document on the opposite party without laying any

foundation as regards the original of the document sought to be tendered does not ipso facto render the document admissible in evidence.

Before concluding this interlocutory appeal, I cannot but comment on the age of the appeal. The suit was filed at the Lower Court in year 2003 according to the suit number. And the interlocutory appeal was lodged on 8/4/2009, that is about 8 years ago.

If the Learned Counsel for the Appellant had followed the admonition of the learned trial Judge in the last paragraph of the Ruling, may be the substantive matter could have been disposed off by now. This interlocutory appeal is a waste of client?s resources and judicial time, since the document in question was not marked as rejected. This type of unnecessary interlocutory appeal has been frowned upon by the Supreme Court in plethora of cases. See the following cases:-

– TUKUR VS GOVERNOR OF GONGOLA STATE (1988) 1 NWLR Part 68 Page 39;

– OBIUWEUBI VS C.B.N. (2011) All FWLR Part 575 Page 208;

– AMADI VS NNPC (2000) FWLR Part 9 Page 1527, (2000) 6 SC Part 1 Page 66 at 82;

– GLOBE FISHING INDUSTRIES LTD VS COKER (1990) 11 SCNJ Page 56.

Consequent upon the foregoing, I am of the view that the learned trial Judge was right in refusing to admit in evidence the document sought to be tendered, in view of the fact that proper foundation was not laid by the Appellant for the admissibility of the document in evidence.

Issue No. 2 is therefore resolved in favour of the Respondents and against the Appellant.

In the result, with the resolution of one issue each in favour of both the Appellant and the Respondents, therefore the appeal succeeds in part. But the above position notwithstanding, the Ruling of the Delta State High Court in Suit No HCH/1/2003 ? EMMANUEL O. EGBOKHARE & ANOTHER VS UNION BANK OF NIGERIA, delivered on 30/3/2009 as far as Issue No. 1 is concerned is hereby set aside. But in respect of Issue No. 2, the decision of the Lower Court is hereby affirmed.

There shall be no order as to costs. Each of the parties are to bear their own costs.

PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading before now, a copy of the lead judgment just delivered by my learned brother J. O. Bada, JCA. I agree entirely with the

reasoning and conclusions arrived at in the said judgment, that the appeal be allowed in part.

On issue no. one, learned counsel for the Appellant submitted that the Lower Court was wrong to have raised the point suo motu on the issue of non-service of the notice to produce when neither party either raised or argued the issue in their submissions and proceeded to base his decision on it. In reply, counsel for the Respondents stated that where a statute makes provision for the admissibility of a document as a condition precedent, such must be complied with in accordance with S.97 (1)(a)(i)-(ii) (b) ? (h) of the Evidence Act Cap. E. 14 LFN 2004.

It is however settled law that a judge is not allowed to raise any issue suo motu and proceed to resolve same without calling on parties to address the Court on it. See DURUMUGO RESOURCES LTD V. ZENITH BANK PLC (2016) LPELR 40487. OMOKUWAJO V. F.R.N. (2013) 9 NWLR (Pt.1359) 300.

I too tow the line of reasoning in the lead judgment and resolve issue one in favour of the Appellant.

Issue two is whether having held that the document sought to be tendered is relevant, the learned trial judge

was right in holding that proper foundation was not laid for the document to be admissible in compliance with the provisions of Section 97 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.

Learned counsel for the Appellant contended that the trial Court erred when it held that there was no proof of service of the notice to produce while the opposite party reasoned otherwise. I am however of the ardent view as also held by my Lord in the lead judgment that there was no argument on the fact that there was indeed conspicuous acknowledgement that 2nd Respondent?s counsel was duly served with a notice to produced. There is no gainsaying the fact that a legal practitioner is empowered to receive Court processes on behalf of his client/party where such processes do require personal service.

See S.91 of the Evidence Act 2011 and also the Proviso to Rule 1 of Order 12 High Court (Civil Procedure) Rules 1988 as applicable in Delta State.

From the foregoing and the more elucidating details contained in the lead judgment, I also hold the view that there was proof of service and the learned trial judge erred in that regard in holding

that proof of service was lacking. Issue two is resolved in favour of the Respondents.

From the totality of all of the above summation, this appeal succeeds in part. The decision of the Lower Court as it pertains to issue one is accordingly set aside. As regards issue No.2, the decision of the Lower Court is hereby affirmed.

I abide by the order of costs as set out in the lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the judgment of my learned brother, JIMI OLUKAYODE BADA, JCA just delivered. I agree with the reasoning and conclusion that the appeal succeed in part. I also resolve issue one against the Respondent and in favour of the Appellant. In the same vein, issue two is resolved in favour of the Respondent and against the Appellant.

In resolving issue one against the Respondent, I would like to chip in the following:-

Judicial authorities are well settled that once a Court raises an issue suo motu as in the instant appeal wherein the Court raised the issue of issuance of notice suo motu in his ruling on the admissibility of a document without affording the parties

opportunity of being heard, the proceeding conducted thereon would be a nullity. In other words, the Court would be in error if it proceed to resolve such issue without affording the parties an opportunity of addressing it on the said issue. See ADEGOKE V. ADIBI (1992) 5 NWLR (Pt.242) 410; ATANDA V. LAKANMI (1974) 3 SC 109 AND KRAUS T. ORGANISATION LTD. V. UNICAL (2004) 25 WRN 1.

For the above consideration and the fuller contained in the lead judgment of my learned brother, I also set aside the ruling delivered on 30th March, 2009 on issue No.1 while the decision of the Lower Court on issue No.2 is affirmed.

I abide by the order on cost as made in the lead judgment.

Appearances

Mr. Akin AdedejiFor Appellant

AND

No Legal RepresentationFor Respondent