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ADAMU ALIYU v. HARUNA BOSE & ANOR (2019)

ADAMU ALIYU v. HARUNA BOSE & ANOR

(2019)LCN/13368(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2019

CA/YL/156/17

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

ADAMU ALIYU Appellant(s)

AND

1. HARUNA BOSE
2. ERIC DANJUMA Respondent(s)

RATIO

WHETHER OR NOT A COURT IS COMPETENT TO REVIEW THE DECISION OF ANOTHER COURT 

The trial Court had no duty to fault the proceedings of the Area Court as having been conducted without jurisdiction. A Court would only be competent to review the decision of another Court if that decision is an appeal before that court. See, AGBI V. OGBEH (2003) (SUPRA). PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff at the Taraba State High Court, presided over by Josephine Y. Tuktur, CJ., took out an action against the Respondents as Defendants in respect of fishing rights over a fish pond in Mayo Ranewo Village, Ardo Kola Local Government in Taraba State, claiming declaratory and injunctive reliefs, also damages. The 2nd Respondent counter claimed for damages. The Appellant?s claim was dismissed by the trial Court.

The background facts are that the Appellant made out that one Audi Jashi a brother to one Lumbi Umaru Muri (DW2 at the trial Court) hired out a fish pond at Mayo Ranewo Village in Ardo Kola Local Government in Taraba State to one Bakari Aliyu, deceased. The fish pond was said to have been hired out for a period of fifteen (15) years, specifically from 1999-2014. Audi Jashi was said to have jointly inherited the fish pond with his sister from their parents. Later, Lumbi Umaru entered another agreement with late Bakari Aliyu which entitled the latter to use the fish pond for eighteen (18) years, from 2014-2032.

The Appellant inherited the

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estate of the late Bakari Aliyu upon his death including fishing rights over the said pond. In 2014, the Appellant saw the 2nd Respondent?s fishing implements by the fish pond. The 2nd Respondent alleged that the 1st Respondent, a son to Lumbi Umaru hired out the same fish pond to him for a period of three (3) years from 2014 – 2017. It was alleged that when the appellant wanted to exercise his fishing rights, Lumbi Umaru denied that there was an agreement between the Appellant and herself for the period between 2014 and 2032. Following the denial, the Appellant took out an action against Lumbi Umaru at Mayo Ranewo Grade II Area Court. The Area Court gave judgment in favour of the Appellant and confirmed his fishing rights over the pond for eighteen (18) years from 2014  2032. The English translation of the agreement between the Appellant?s brother and Lumbi Umaru was admitted in evidence at the lower Court as Exhibit A1, page 82 of the printed record of appeal. The Area Court also issued Exhibit B titled CONFIRMATION OF SALE OF FISHING POND, pages 26 and 82 of the record.

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At the trial Court, the Appellant sought to tender in evidence the proceedings (Certified True Copy) of Mayo Ranewo Grade II Area Court (pages 20-25 of the record) an objection was raised as by the respondents to its admissibility on the ground that the Court that gave the judgment was not properly constituted (pages 82-84 of the record). The lower Court rejected the document and declared the proceedings therein null and void.

The Appellant as plaintiff called two (2) witnesses himself inclusive as PW2, while the Respondents also called two witnesses including the 2nd Respondent who testified as DW1. In its judgment, the trial Court dismissed the claim of the Appellant and the counter claim of the 2nd Respondent. The Court was of the view that since the DW2 denied signing Exhibit ?A? and the Appellant did not call any witness to the agreement to testify, the same was not binding on the DW2 and consequently dismissed the case of the Appellant.

Thereafter, the trial Court made a restraining order against the Appellant in respect of the fish pond. The Appellant alleged that the said order was not sought by any of the parties. Also, that the fish pond was

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ordered to be released to the DW2 even though she was not a party to the suit.

The Appellant formulated the following four issues for the determination of the appeal.
1. Whether the learned trial judge was right in rejecting the record of proceedings of the Mayo Ranewo Area Court on the grounds that the Mayo Ranewo Area Court lacked jurisdiction over the case decided by it and whether this has not occasioned a miscarriage of justice (Grounds 2 and 6).
2. Whether the trial judge was right in refusing to give effect to Exhibit A and A1 on the grounds that the Appellant failed to call witnesses who witnessed the agreement between DW2 and the Appellants late brother on alleged denial by the DW2 that she signed the agreement and whether this has not occasioned a miscarriage of justice (Grounds 3 and 5).
3. Whether from the totality of the evidence before the trial Court, the trial Court was right in holding that the Appellant had not established his case and consequently dismissed same (Grounds 4 and 8).
4. Whether the trial judge was right in making an order restraining the Appellant and his agents and privies from

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exercising any right over the fishing pond in issue and in making an order returning the fish pond to DW2 by the Appellant.? (Grounds 1 and 7).

The Respondents on their part distilled the following three (3) issues for the determination of the appeal.
1. Whether the learned trial judge was right in law for rejecting a judgment of Area Court Grade II Mayo-Ranewo of Taraba State delivered without jurisdiction in evidence and if such rejection has occasion (sic) miscarriage of justice (Grounds 2 and 6);
2. Whether from the totality of facts the learned trial judge was right in making a restraining order against the Appellant and his privies from exercising any right over the fish-pond in question and making an order returning the fish-pond to DW2 the original owner (Grounds 1 and 7);
3. Whether from the pleadings and evidence the learned trial judge was right in dismissing the Appellant?s case.” (Ground 3, 4, 5 and 8)?

In arguing the appeal, the learned counsel to the Appellant J. A. Oguche Esq., relied on his brief of argument filed on 1/11/2017 but deemed filed on 6/12/2017 as his argument in this appeal in

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urging us to allow the appeal and set aside the judgment of the High Court. We were also urged to evoke Section 15 of the Court of Appeal Act and grant the reliefs of the Appellant in paragraph 14 of his statement of claim. In arguing his first issue, it was submitted that the learned trial judge was in error to have refused to admit in evidence the record of proceedings of Mayo Ranewo Area Court Grade 2 when it was sought to be tendered by the learned counsel to the Appellant. It was submitted that the record sought to be tendered at the trial Court was pleaded in paragraph 8 of the statement of claim. The objection against the admissibility of the record of proceedings was on the ground that the Court was manned by a single judge. The trial Court upheld the objection and rejected the document and went further to declare the proceedings of the Area Court null and void. It was submitted that the rejected document met all the conditions for its admissibility in that it was relevant and a certified true copy of a public document. It was submitted that the trial Court was wrong to have declared the proceedings null and void since the lower Court was not sitting

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on appeal over the proceedings or judgment of the Mayo Ranewo Area Court. See, AGBI V. OGBEH (2003) FWLR (PT.169) 1245 and OBA AMOS BABATUNDE AND ANOR. VS. SIMON OLATUNJI AND ANOR. (2000) 2 SCNJ 26. It was argued that the decision of the trial Court would have been different had the trial Court not wrongly rejected the admissible evidence. See, ADEBIYI VS. KOLAWOLE (2008) ALL FWLR (PT.428) 234, OKOBIA VS. AJANYA (1998) 5 SCNJ 95 at 105-106 and OJENGBEDE V. ESAN & ANOR. (2001) 12 SCNJ 401.

In arguing his issue two, it was submitted that the lower Court was wrong to have refused to give effect to Exhibits ?A? and ?A1?, an agreement entered into between the Appellant?s late brother Bakari Aliyu and Lumbi Umaru Muri, the DW2 which entitled the Appellant to exercise fishing rights over the fish pond. Further, that even though the trial Court admitted these Exhibits in evidence, it was wrong to have held that the Exhibits are not binding on the DW2. It was submitted that the PW1 who gave his name as Aliyu Sale, page 74 of the records, is the same person as Tsoho Nahuta who was a witness to the agreement in Exhibits

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A and A1 contrary to the conclusion by the trial Court that the Appellant did not call anyone who was a witness to the agreement to testify. It was submitted that the alleged non-signing of Exhibits A and A1 by Lumbi Umaru Muri and the alleged failure to call anyone who was a witness to the agreement to testify were not issues between the parties at the lower Court. It was the contention of the learned counsel that had the trial Court given the necessary weight to Exhibits A and A1, it would not have reached the erroneous conclusion that the Appellant failed to establish his case.

Issues three and four were argued together. It was submitted that the trial Court was wrong to have held that the Appellant had not established his case and consequently dismissed same, also wrong in granting reliefs against the Appellant which were not sought by the Respondents. It was argued that the evidence given by the Appellant in respect of Exhibits A and A1 title was in favour of the Appellant contrary to the stand taken by the trial Court. It was noted that

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Exhibit ?B?, a document issued by Mayo Ranewo Area Court to confirm the agreement between Bakari Aliyu and Lumbi Umaru was not set aside by the trial Court. It was submitted that even though an appellate Court should defer from interfering with the findings of the trial Court, it should do so where the proper inference was not drawn from the facts presented before the trial Court. In such a situation, the appellate Court would be fortified to reverse the conclusion. See, ATTORNEY-GENERAL OF EKITI STATE VS. DARAMOLA (2003) FWLR (PT.169) 1121, KASUMU & OTHERS V. ABEO (1972) NSCC 145 at 149, SHELL B.P. PETROLEUM DEVELOPMENT COMPANY LIMITED VS. HIS HIGHESS PERE COLE (1978) 3 SC 183 and SOLEH BONEH OVERSEAS NIGERIA LIMITED VS. AYODELE AND ANOR. (1989) 1 NWLR (PT.99) 549. We were urged to draw the proper inference from the evidence on record and reverse the decision of the trial Court, uphold the appellant?s case and grant the reliefs sought at the lower Court.

It was also argued that the orders granted by the learned trial judge were not claimed by any of the parties. It was submitted that the trial Court relied on Exhibit C

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in granting the injunction. It was submitted that the Appellant?s claim was not based on Exhibit ?C? but rather, the agreement in Exhibits ?A? and ?A1?. It was reargued that the DW2 was only a witness in the case and neither a plaintiff nor a defendant and ought not to have been granted any relief by the trial Court. It was concluded that only reliefs contained in pleadings should be granted. See, OKOBIA V. AJANYA (1998) 5 SCNJ 95 and ODUKWE VS. OGUNBIYI (1998) 6 SCNJ 102 at 123.

In response, the learned counsel to the Respondents B. A. Amoke Esq., relied on his amended brief of argument filed on 23/3/2018 which was deemed properly filed and served on 23/10/2018 as his argument in urging us to dismiss the appeal and affirm the judgment of the lower Court. In arguing his first issue, it was submitted that the learned trial judge was right to have rejected a judgment obtained without jurisdiction. It was argued that any judgment obtained without jurisdiction can be validly challenged at the point of tendering same in evidence in proof of the content thereof, see Section 64 of the Evidence Act, 2011. It was submitted

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that by Section 7 Area Courts Law Cap 11, Vol. 1, Laws of Taraba State an Area Court is properly constituted when at least a judge and a member sit, the judgment in contention was a record of Court produced in proof of the averments as contended by the Appellant, which was challenged by the Respondents who alleged that the piece of evidence was null and void being a decision obtained without jurisdiction. See, UZODINMA V. IZUNASO (2012) 211 LRCN 153 at 204; OKOROCHA V. P.D.P. (2014) 7 NWLR (PT.1406) P.213 and GAFAR V. GOVT. KWARA STATE (2007) 4 NWLR (PT.1024) P.375 at 403. It was contended that it was the duty of the Appellant to establish that the judgment sought to be tendered at the trial Court was delivered with jurisdiction. It was concluded that the non-admissibility of the record of proceeding/judgment had no effect on the decision of the trial Court and did not occasion any miscarriage of justice.

In arguing his issue two, it was conceded by the learned counsel to the Respondents that neither the Appellant nor the Respondents sought for the order restoring the fish pond to the radical owner and restraining the appellant from further interfering

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with the fish pond (pages 132 and 134 of the record of appeal). It was submitted that the restraining order was consequential. See, EZE V. GOV. ABIA STATE (2014) 14 NWLR (PT.1426) and AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227. Further, that the trial Court upon the finding that the Appellant?s claim failed and that the duration of his usage of the fish pond had expired, the Court rightly exercised its powers to make a consequential order. See, STATOIL (NIG.) LTD. V. INDUCON (NIG.) LTD. (2014) 9 NWLR (PT. 1411) P.43 at 87, PARAS. E-H.

The Respondents third issue is a challenge of the evaluation of the entire evidence before the trial Court. It was submitted by the learned counsel to the Respondents that Exhibits A, A1 and B are not documents that could have been relied upon to presume that there was a valid agreement between the parties. It was argued that these Exhibits are not dated and no price was shown, even though PW1 and PW2 testified that they were aware of their existence and the PW2 was signatory to Exhibit ?A?. It was submitted that the DW2 gave evidence that she is an

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illiterate and cannot sign a document but, would normally thumb print, she denied signing Exhibit ?A?. It was argued that the onus was on the Appellant to show that the DW2 could not sign documents except by thumb printing. See, BABALE V. EZE (2011) 11 NWLR (PT. 1257) 48 at PP.112-113, PARAS. G-C.

It was submitted that Exhibit C is relevant in this case to show the duration of the valid rent of the fish pond agreement between the elder brother of the appellant and the yonger brother of the DW2. On the other hand we were urged to discountenace Exhibit B, the confirmation of the rent of the fish pond by the Mayo Ranewo Area Court. It was concluded that the appellants pleadings were not supported by evidence to have entitled the appellant to judgment at the trial Court.

The issues raised by the parties for the determination of the appeal are similar, I would utilize those distilled by the appellant in determining the appeal. The Appellant?s issue one, is whether the trial judge was right in rejecting the record of proceedings of the Mayo Ranewo Area Court on the grounds that the Mayo Ranewo Area

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Court lacked jurisdiction over the case decided by it, whether this has not occasioned a miscarriage of justice? The Appellant pleaded the record of proceedings sought to be tendered in evidence at the trial Court in paragraph 8 of his statement of claim thus:
8. The plaintiff states that being aggrieved, he approached the Grade II Area Court, Mayo Ranewo, wherein the matter was heard and thereafter judgment was given in his favour, whereby the Court confirmed the hire purchase transaction between late Bakari Aliyu and Lumbi Umaru Muri. The record of proceedings of the Area Court Mayo- Ranewo is hereby pleaded. The order of Area Court Mayo-Ranewo confirming the hire of the fish pond is also pleaded.”
The above pleadings confirmed the lease of the fish pond between the Appellant?s late brother and Lumbi Umaru Muri (DW2) through whom the Respondents claim their right over the fishing pond which prompted the filing of this action by the Appellant as well as the decision of the Mayo Ranewo Grade II Area Court confirming through its judgment in favour of the Appellant the hire purchase transaction between the late Bakari Aliyu

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(Appellants late brother) and Lumbi Umaru Muri. At the lower Court, the learned counsel to the Appellant sought to tender the proceedings, the learned counsel to the Respondents objected on the ground that the Area Court was manned by a single judge. The learned trial judge agreed with the Respondents and declared the said proceedings null and void and rejected the document sought to be tendered.
The reason given by the trial judge for rejecting the document was the alleged lack of jurisdiction on the part of the judge that conducted the proceedings. It is noteworthy that the trial Court was not sitting on appeal over the proceedings and/or judgment of the Mayo-Ranewo Area Court. The proceedings before the trial Court was not a challenge of the jurisdiction of the Area Court whose proceedings and judgment were sought to be tendered. The trial Court erroneously assumed the duty of an appellate Court over the decision sought to be tendered by the learned counsel to the Appellant. The proceedings and judgment of the Area Court were sought to be tendered to show that there was a subsisting decision of the Area Court in favour of the Appellant confirming

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the hire purchase transaction between the late brother of the Appellant (Bakari Aliyu) and Lumbi Umaru Muri. The trial Court had no duty to fault the proceedings of the Area Court as having been conducted without jurisdiction. A Court would only be competent to review the decision of another Court if that decision is an appeal before that court. See, AGBI V. OGBEH (2003) (SUPRA). Until the proceedings and judgment of the Area Court are set aside on appeal, they remain valid and subsisting. I hold that the trial Court was not sitting as an appellate Court over the proceedings of the Mayo Ranewo Area Court and was wrong to have rejected admission in evidence the proceedings. The proceedings were wrongfully excluded. I resolve issue one in favour of the Appellant.

On the appellants issue two, whether the trial judge was right in refusing to give effect to Exhibit ?A? and ?A1? on the grounds that the Appellant failed to call witnesses who witnessed the agreement between DW2 and the Appellant?s late brother on the alleged denial by the DW2 that she signed the agreement and whether this has not occasioned a miscarriage of

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justice Exhibits A and A1 are English and Hausa versions of the agreement between the Appellant?s late brother (Bakari Aliyu) and Lumbi Umaru Aliyu, the DW2 which entitled the Appellant to exercise fishing rights over the fish pond. These documents were admitted in evidence by the trial Court but, the Court held that the documents were not binding on the DW2, even though there was a signature against the name of the DW2 who asserted that she did not sign the said document and that the Appellant did not call a witness to the written agreement to testify. It would be necessary to reproduce the relevant part of the Appellant?s pleadings at this stage. In paragraph 7 of the statement of claim, it was pleaded as follows:
7. “The plaintiff avers that the transaction between his late brother Bakari Aliyu and Hajiya Lumbi Umaru is evidenced by an agreement written in Hausa language, and was signed and witnessed by Adamu Malam Nahuta, Geje Binnari and Tsoho Nawuta. The said agreement and the translated English version of same are pleaded.”

From the above pleadings the Appellant pleaded the existence of the

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contractual agreement between the late brother to the Appellant (Bakari Aliyu and Lumbi Umaru Muri), the fact that the agreement was signed by the parties and the names of the witnesses to the agreement were given.

The Respondents in response to the above paragraph 7, responded in paragraph 9 of their joint statement of defence thus:
9. “The defendants deny paragraph 7 of the plaintiff statement of claim and further aver that there was never any such contractual agreement between the said Hajiya Lumbi Hassan with anybody howsoever called.?

From the above pleading, the Respondents pleaded the non existence of the agreement. The denial was general, there was no specific denial that the agreement was signed by the parties therein and that there were witnesses to the agreement, the appellant was relieved of the burden of proving his averments through evidence but, all the same the Appellant led evidence in support of the averment. In the statement on oath of PW1 (Aliyu Sale) which was later adopted as his evidence at the trial, in paragraphs 5 and 6 it read as follows:
5. “That I know that the late Bakari Aliyu hired the pond

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from one Lumbi Umaru Muri from 2014-2032.
6. “That I was present during the hire purchase transaction of the fish pond which was hired by the late Bakari Aliyu and I was signatory to the agreement in respect of the transaction.”

Similarly, the Appellant who testified as the PW2, in his statement on oath which was also adopted at the trial in paragraph 7 of the written statement stated thus:
7. “That the transaction between my late brother Bakari Aliyu and Hajiya Lumbi Umaru is evidenced by an agreement written in Hausa language, and was signed and witnessed by Adamu Malam Nahuta, Geje Binnari and Tsoho Nawuta.”

The effect of the above pleadings and evidence at the trial Court is that there was a written agreement duly signed and witnessed by other people. The DW2 (Lumbi Umaru Muri) did not deny the existence of the agreement in her written statement on oath which she adopted before the trial Court, she did not deny signing the agreement and did not also deny the signature appearing against her name as hers but, the learned trial judge in giving reasons for refusing to give the required interpretation and effect to

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Exhibits ?A? and ?A1? alleged that the DW2 could not have signed the said Exhibits as the Appellant did not call any witness to the agreement to testify. In the contrary, the PW1 (Aliyu Sale) testified at the trial Court. In his statement on oath the PW1 testified that he was signatory to the agreement in respect of the transaction between the late Bakari Aliyu and the DW2 (Lumbi Umaru Muri). At page 74 of the printed record, the PW1 adopted his statement on oath and testified thus:
“My earlier name that was known was Tsoho Sale Nawuta.

In Exhibits A and A1, the name of the PW1 appeared therein as Tsoho Nawuta, the third witness to the agreement. It is clear that the PW1, Aliyu Sale is the same person as Tsoho Nawuta. The learned trial Chief Judge concerning Exhibits A and A1 in his judgment at pages 129-130 of the printed record held as follows:
?In any agreement the signature on the document is the binding force, in the instant case where are (sic) of the party denied the signature on the document, puts the validity of the document in

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question, which can only be resolved by witnesses who were present when the agreement and the document was made. This the plaintiff who assert that signature is that of Lumbi Umaru Muri has the duty to place evidence before the court for the consideration of the validity of Exhibits ?A?, ?A1? the plaintiff having not relieved himself of such duty is bound to fail in his ascertain that the agreement was made with the knowledge and signature of the owner Lumbi Umaru Muri.
The issue as to whether Lumbi Umaru Muri was a party to the agreement for the hiring of the said disputed fish pond with Bakari Aliyu for the period of 18 years, from 2014-2032 lacks merit for want of evidence. I therefore find that just on the face of the document Exhibit ?A, A1? this Court is unable place (sic) any liability on DW2, since the plaintiff did not call any of the signatory to Court to confirm the fact he asserted that Lumbi Umaru Muri signed Exhibit ?A, A1?. With these I hereby uphold the submission and prayers of the defendants counsel that no reasonable Tribunal would rely on such document to lay weighty (sic) upon it.

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Consequently the relief of the plaintiff for an order of this Court confirming sale as per exhibit is hereby refused and accordingly dismissed.? (underlined mine for emphasis).

The learned trial Court?s reason for not attaching any weight to Exhibits ?A? and ?A1? is erroneous. The PW1, a witness to the agreement in question testified as the PW1. The trial Court was wrong to have held that no witness to the agreement was called to testify and ought to have examined Exhibits ?A and A1? and given the exhibits their due consideration. In effect, the trial Court arrived at its decision without considering the contents of Exhibits ?A? and ?A1? which is erroneous. I resolve issue two in favour of the Appellant.

With the resolution of the appellants issues one and two in his favour, there would be no need to determine the appellants jointly argued issues three and four that touch on the evaluation of the evidence as a whole before the trial Court. With the resolution of issues one and two, the evidence at the trial Court would now include assessing the proceeding that was

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not admitted in evidence by the trial Court and Exhibits ?A? and ?A1? that were also not evaluated by the trial Court for the reason earlier given while resolving issue two above.

In sum, I would determine the appeal on issues one and two alone in holding that having resolved issues one and two in favour of the appellant, the appeal is meritorious and I allow same.

The judgment of the learned trial Chief Judge is hereby set aside. I order that the case be and is hereby remitted back to the Chief Judge of Taraba State for assignment to another judge of the High Court of Taraba State for trial de novo.
Parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA.

For the reasons contained in the lead judgment which I adopt as mine, I too allow the appeal and order that the matter be remitted to the Chief Judge of Taraba for assignment to another Judge of the High Court of Taraba State for trial de novo.
I abide by the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

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Appearances:

J.A. Oguche, Esq.For Appellant(s)

B.A. Amoke, Esq.For Respondent(s)

 

Appearances

J.A. Oguche, Esq.For Appellant

 

AND

B.A. Amoke, Esq.For Respondent