AFEMAI MICROFINANCE BANK LIMITED v. SEACOS NIGERIA LIMITED (2014)

AFEMAI MICROFINANCE BANK LIMITED v. SEACOS NIGERIA LIMITED

(2014)LCN/6958(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/B/98/2012

RATIO

EVIDENCE: WHETHER PLEADINGS UNSUPPORTED BY EVIDENCE MAY BE DEEMED ABANDONED

It is trite law, that where pleadings are not supported by evidence, such pleadings are deemed abandoned since pleadings do not constitute evidence on oath. That is why even extra judicial statements made by way of witness statements are adopted on oath by the witness. The statement of claim or defence is not admissible and cannot be considered as evidence until such averments are sworn to on record before a court of competent jurisdiction. See Administrators of Estate of General Sani Abacha v. Eke-Spiff (2009) All FWLR (Pt. 467) Pg. 1 at Pg. 35; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146 Pg. 578; Egbunike & Anor. v. ACB (1995) 2 NWLR (Pt. 375) Pg. 34. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES:

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

AFEMAI MICROFINANCE BANK LTD – Appellant(s)

AND

SEACOS NIGERIA LTD – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Edo State, delivered on the 5th day of October, 2011 by Honourable Justice E.F. Ikpomwen. Dissatisfied with the judgment, the Appellant, who was the Plaintiff at the trial court, filed this appeal. The facts which led to this appeal are as follows:-

The Appellant who was the Plaintiff at the trial Court commenced this action on the 16th March, 2009 by filing a specially endorsed writ of summons which said suit was placed on the undefended list. However, upon the filing of intention to defend by the Defendant, who is the Respondent herein, the case was transferred to the general cause list. Paragraph 31(ii) and (iii) of the statement of claim provides as follows:

1. Wherefore the Plaintiff claims against the Defendant the sum of N8,310,265.45 (Eight million, Three Hundred and Ten Thousand, Two Hundred and Sixty-five Naira, Forty-five kobo) owed and payable to the Plaintiff by the Defendant as at 28th day of February, 2009 being the balance of the loan/overdraft facility granted to the Defendant, as well as in respect of the Bank commission, interest and/or charges on the said loan/overdraft credit facility granted to the defendant by the plaintiff whose place of business is at plaintiff’s bank at No. 61B, Bode Road, Jattu-Uzairue, Edo State, a place within the jurisdiction of this Honourable Court.

2. Interest on the said sum at the rate of 21% per annum from 10th day of March, 2009 until judgment is given and at the rate of 10% per annum until full payment is made.

The case went into full trial with Mr. Joseph Osumah (Head, Credit and Marketing) testifying as the sole witness who also tendered Exhibits A, B, C, D, E, F, G,H, J, K, K1, K2, K3, L, L1, L2, L3, M, M1, N, P, P1, P2, Q, Q1, Q2 and Q3.
At the close of the Appellant’s case, the Respondent refused to defend despite filing a notice of intention to defend. The case was subsequently adjourned for final address by the Appellant’s counsel with the suit unchallenged by the Respondent and judgment was delivered against the Appellant on 5/10/2011.

The learned trial judge dismissed the Appellant’s claims in its entirety. The Appellant not satisfied with that decision has appealed to this court. The Appellant filed a Notice of Appeal on the 12/12/2011 with three grounds of appeal. The Appellant’s brief of argument is dated and filed on 16/5/2012. The Respondent’s brief of argument is dated and filed on 27/9/2012 and the Appellant’s reply brief of argument is dated and filed on 10/10/2012.

In the brief settled by A. U. Osunde Esq., the Appellant raised the following issues for determination. The issues read as follows:

1. Whether the learned trial judge was right in law when it (sic) failed to act on the unchallenged/uncontroverted evidence of the Appellant and went ahead to give judgment dismissing the case of the Appellant in favour of the Respondent.

2. Whether the learned trial judge was right when it held that there is no evidence of the Respondent applying for any loan from the Appellant.

3. Whether the learned trial court was right when he came to the conclusion that there was no document extending the time of the loan granted to the respondent.

In the brief filed by Ademola Ekundayo, Esq., for the Respondent, the following issues were raised for determination:

1. Whether the learned trial judge failure to act on the unchallenged/uncontroverted evidence of the Appellant, where found to be weak, incoherent and grossly insufficient to sustain its claim, can amount to miscarriage of justice (from Ground 1).

2. Whether the decision of the learned trial judge that there is no evidence of the respondent applying for loan from the appellant and document(s) further extending the time of the said loan, where indeed none was found, such decision can be said to be perverse and can be impeached or set aside by this Honourable Court (from Grounds 2 and 3).

I find that the issues identified by both parties are repetitious and that there is only one issue for determination which I have couched as follows:

Whether the learned trial judge was right in law when the court disbelieved the unchallenged evidence of the appellant and dismissed the case of the appellant.

This sole issue has several legs to it. The questions raised by this issue is really whether the evidence though unchallenged was strong enough to sustain the claim.

In the Appellant’s brief settled by A. U. Osunde Esq., the Appellant argued that facts admitted need no further proof and that unchallenged evidence indeed unrebutted facts need no further proof. He cited Oyewola v. Akande (2009) All FWLR (Pt. 491) Pg. 813 at 831, Nweke v. Udobi (2001) 5 NWLR (Pt. 706) pg. 445 at 453; Ajao v. Ashiru (1973) 11 SC Pg.23 at 32; Omoregbe v. Lawani (1980) 3 and 4 SC 108 at 117; Abraham v. Olorunfemi (1997) 1 NWLR (Pt. 165) Pg. 53 at 61.

Counsel argued that the learned trial judge descended into the arena of conflict by absolving the Respondent and erroneously heaping blame on the Appellant. Counsel argued that some of the rationale used by the learned trial judge in coming to a conclusion were wrong. Counsel insisted that the learned trial judge was wrong in deciding the issues his Lordship raised suo motu without giving counsel an opportunity to address the court on them. The argument of learned Appellant’s counsel is that the learned trial judge erred in law and misdirected himself when he held at page 145 of the record of appeal that there was no evidence of the respondent applying for any loan from the appellant, whereas the evidence of the appellant through PW1 culminating in the tendering of Exhibit E, F, G, H and J admitted in evidence remained unchallenged by the respondent. Counsel stated that the learned trial judge hinged his decision on the fact that he could not connect Exhibits E and F legally. Counsel argued that the issue that Exhibits E and F were not connected legally was not canvassed before the trial court, as it is trite law that when the court raises issues suo motu it should call on the parties before it to address court on the issue which was not done in this case. He cited VINTINO FIXED ODDS LTD v. OJO (2010) 8 NWLR (Pt. 1197) 487 AT 505 PARA C; OKEKE v. AMADI (2005) 14 NWLR (Pt. 945) 545 AT 559 PARA G – H. Counsel argued that in this case, the court formulated new issues for the parties by fishing for evidence when there were live issues placed before the court which the court refused to consider. He cited Victino Fixed Odds Ltd. v. Ojo (2010) 8 NWIR Pt. 1197 Pg. 487 at 505; Jeric Nig. Ltd. v. UBN Plc (2000) 15 NWLR (Pt. 691) Pg. 447; Okere v. Amadi (2005) 14 NWLR (Pt. 945) pg. 545 at 559; Olufeagba v. Abdul-Raheem (2010) All FWLR (Pt. 512) Pg. 1033 at 1049.

Counsel argued that a careful perusal of Exhibits L and K2 at pages 50 (Application for Rollover dated 30/3/2005) will reveal the financial commitment of the Respondent to the Appellant and plea for more facility and a rollover having acknowledged its indebtedness. While Exhibits F, G and P1 (letter of offer (Rollover) N3 million dated March 7, 2007, undisputedly shows that there is sufficient evidence that the Respondent applied for loan facility from the Appellant and was indeed granted same.

Counsel submitted that extrinsic evidence is no more permissible to overthrow documentary evidence except in few instances and cited C. O. E. Ekiadolor v. Osayande (2011) All FWLR (Pt. 566) Pg. 504 at Pg. 507. Counsel argued that by Exhibits L and K2 the respondent had admitted its indebtedness to the appellant but the learned trial judge held otherwise and went ahead to condemn the banking practice of the appellant to justify the court’s finding. Counsel argued that it is not in doubt that Mr. Ojo Ajanaku is the alter ego of the Respondent. Counsel argued that it is not in contention that the said Ojo Ajanaku runs and manages the Respondent as the sole owner. The said Ojo Ajanaku pledged his personal property a building at Obade close, off Ideal Guest House Road, Jattu-Uzairue as security for all the loan granted the Respondent by the Appellant as contained in Exhibit J at Pg. 35 of the records of appeal. This is further strengthened by Exhibit ‘L’ at pg. 56 of the record of appeal.

Learned Respondent’s counsel in the brief settled by Mr. Ademola Ekundayo argued that where the evidence of a plaintiff in an action is weak and incoherent, even where unchallenged, the court should not grant such claims. Counsel argued that in this case, the evidence was insufficient to sustain the claim made by the plaintiff/appellant. He cited Martchem Industries Nig. Ltd. v. M. F. Kent West Africa Ltd (2005) All FWLR (Pt. 271 Pg. 1 and Peter Orban Yissa v. Benue State Judicial Service Commission (2005) All FWLR (Pt. 277) Pg.856; Iwuola v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) pg. 308.

Counsel insisted that for unchallenged evidence to be accepted, it must be credible and that if the evidence is of such quality that no reasonable tribunal would believe it, the trial court ought not to accept it. Counsel argued that the decision of the trial court is premised on the fact that the learned trial judge after carefully considering the evidence and all documents tendered by the appellant as plaintiff at the trial court, could not find anything in evidence pointing to the fact that the respondent applied for a loan from the appellant nor documents further extending the payment time of the said loan. Also that the appellant’s counsel did not in his argument point to a specific document that clearly shows evidence of the application for the loan or for the extension of the time of the loan granted.

Counsel for the Respondent argued that it is crystal clear that all evidence available was considered and decided upon, and none was found to be in favour of its claim that the respondent applied for loan and later further extended the time of same.

Learned counsel also submitted without conceding that, even if there is any error of law committed by the trial court, it is settled law that it is not every mistake or error of law by a trial court in its judgment that may warrant the setting aside of the judgment by the appellate court except where there is a miscarriage of justice. See Adeniyi v. Akinyede (2010) All FWLR Pt. 503 1257 at 1336. In the instant case the appellant is the one claiming that the defendant is owing the bank some money yet it was unable to show the basic evidence of the indebtedness and the court cannot by way of conjecture fill in the gap for it.

Learned Respondent’s counsel argued that even though the trial court was left with only the evidence of the plaintiff at the trial to consider, it was clear that most of the averment in the statement of defence raising new issues and debunking the claim of the appellant were unchallenged. He insisted that the evidence of P.W.1 was marked by incoherence, inconsistencies and discrepancies. He stated that the evidence both oral and documentary contained damaging elements which debunked the plaintiff/Appellant’s claim rather than supported the claim.
In the reply brief filed by the Appellant’s counsel on 10/10/12, counsel submitted that averment in pleadings must be supported by evidence. If no such evidence was called such pleadings are deemed abandoned. He cited ANPP v. Argungu (2009) All FWLR (Pt. 467) Pg. 94 at 97; Awojugbagbe Light Industry Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) Pg. 379; Administrator of Estate of Sani Abacha v. Eke-Spiff (2009) All FWLR (Pt. 467) Pg. 1 at pg. 35.

Let me first address the point raised by learned Respondent’s counsel in paragraph 4.05 and 4.06 of the brief where counsel submitted that failure of the plaintiff to make a reply to the statement of defence is an admission of the averments in the statement of defence.

The respondent filed a statement of defence in this matter (Pg. 124 of the record) in which it categorically denied the averments of the plaintiff. In paragraphs 4, 5, 5, 7 and 8 of the statement of defence, the defendant stated that, it is not the owner of Account No. 121010427, it is no longer owing the plaintiff, the plaintiff took undue advantage of the numerous transaction they had to manipulate the defendant’s account and that the money it is owing had been paid and it has even paid surplus of N1,000,000.00 (One million Naira). The Respondent also contended at paragraph 13 of the statement of defence that the action is frivolous and amounts to gold digging.

At the trial, the Appellant’s sole witness and indeed the sole witness during the trial was the Head, Credit and Marketing Officer of the Appellant who tendered 27 Exhibits which were all admitted in evidence. Some of the Exhibits and their contents are listed below:

1. Exhibit E is an Application for outright loan date d 25/1/04 at pg. 31 of the records.
2. Exhibit F is a Letter of offer dated 18/9/2004 at pg. 36 of the record.
3. Exhibit G is the Loan agreement dated 18/9/2004 at pg. 41 of the record.
4. Exhibit H is the Pledge agreement dated 18/9/2004 at pg. 46 of the record.
5. Exhibit J is a Letter of personal guarantee dated 26/2/2004 at pg. 35 of the record.
6. Exhibit K2 is Application for rollover of facility of N3m dated 30/3/2005 at Pg. 50 of the record.
7. Exhibit L is a Letter from the Respondent to the Appellant dated 19/2/2007 at Pg. 56 of the record. It was for another loan facility of N3 million.
8. Exhibit L3 is the Letter for Rollover of N5m overdraft dated 16/9/2007 at Pg. 65 of the record.
9. Exhibit P2 is the statement of account of 1/1/2004 to 18/4/2011 at Pg. 99 – 109 of the record.
10. Exhibit P1 is the Letter of offer (rollover) N3m at pg. 57 to 59 of the record.
11. Exhibit P is the loan agreement dated 7/3/2007 at pg. 60 of the record of appeal.

The judgment of the trial judge spanned a total of six pages. The learned trial judge tried to draw a clear distinction between the Ojo Ajanaku, the Chief Executive Officer of the Respondent and the Respondent. The court insisted that it could not connect Exhibit E and F legally. His Lordship queried the fact that there was no “old” letter of offer when there was a “new” letter of offer evidenced by Exhibit F.

After reading the judgment of the trial judge, there is no doubt that the judgment read like a defendant’s brief with the sole purpose of picking real and sometimes imaginary holes in the claim made out by the appellant as plaintiff at the trial court. I have looked at all the Exhibits tendered at the trial court, I do not find them in the least confusing. On 25th January, 2004, the Respondent whose alter ego is Ojo Ajanaku applied for a loan of N3,905,000.00 from the Appellant. On 26/2/2004, he followed it up with a letter of personal guarantee. On 18/9/2004 he was given a letter of offer (new) of N3,000,000.00 as loan. The letter stated the collateral to be an uncompleted building and warehouse. On pg. 39 of the record there was stamped acceptance of the letter of offer by Ajanaku Ojo dated 28/9/2004. This was followed by a formal loan agreement on page 41 of the record which was signed by the parties. The execution page is page 45 of the record. On the same 18th of September, the parties entered into a separate agreement to pledge the personal building of Seacos Nigeria Ltd. who was also named as Mr. Ojo Ajanaku in all the documentation. Several attempts were made to recover the loan at the beginning of 2005. Exhibit K2 is the application to roll over the facility of N3m. The Respondents stated as follows in Exhibit K2 on pg. 50 of the record:
“We appreciate your patience over the facility granted to us by your Bank for the past six months but wish to rollover the facility for another six months for some reasons beyond our control.
Due to our pending inflow of cash, we were only able to pay off the accrued interest and wish that as God will have His way, within the next six months we shall have liquidated the capital plus the interest that will be accrued if approved.
We will be glad if our request is granted as our collateral still remain in the Bank’s custody.”

In the letter Exhibit L dated 19/2/2007, the Respondent admitted the loan and interests as at that day but pleaded for waiver of fifty percent of verified interest on the previous loan and that the outstanding unpaid interest should not attract further interest.

I cannot understand the reasoning of the learned trial judge when his Lordship insisted that he could not see a nexus between Exhibit E and Exhibit F, the former being the letter of application for the loan and the later being the letter of offer of the loan by the bank which was accepted by the Respondent.

For the sake of argument, I tried to see if the complaints and holes picked suo motu in the claim of the Appellant by the trial judge had any merit and I can find none. The Appellant at the trial court in my humble view presented an unchallenged water tight case against the Respondent.

In the first instance the Respondent has not said that it made any effort to defend the claim of the Appellant despite being aware of it and filing a statement of defence. The law is that uncontroverted and unchallenged evidence should be accepted where it is credible, and consistent. The general rule is that uncontradicted and undisputed testimony from which reasonable minds can draw but one conclusion must not be disregarded by the court but must be accepted as true. However, a court is not under any obligation or in all circumstances required to accept as true the testimony of a witness even though not contradicted where it is patently false, unreasonable and improbable. See Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) Pg. 218.
In this case, the testimony of the sole witness was credible and consistent and supported by documentary evidence. Where evidence is unchallenged the evidence required is minimal. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) Pg. 353; Iyere v. Bendel Feeds & Flour Mill Ltd. (2009) All FWLR (Pt. 453) Pg. 1217 at 1247; Obineche v. Akusobi (2010) 12 NWLR (Pt. 1208) Pg. 383; Olohunde v. Prof Adeyoju (2000) 6 SCNJ 470 at 475.

The trial judge was wrong in the evaluation of the evidence and the way he approached the whole issue. As I mentioned earlier, the court decided to introduce needless confusion into the clear case made out by the Appellants. For example, at Pg. 150, the learned trial judge held:

“I can make no sense of his claim based on the documents. This claim though unchallenged is doomed to fail as I smell a rat in this claim.

“Those who granted the loans and processed them were unserious. The so called pledge is not supported by any proof of ownership, little wonder they abandoned it and came to court with a “ridiculous” and “senseless” claim that is not supported by any credible documents.”

If there was anything clear and credible about the claim of the appellant, it was the documentary evidence tendered all of which show progressively the history of the loan transactions and how the Respondent came to owe the Appellant the amount claimed. The sole issue crystalised for the determination of this appeal is resolved in favour of the Appellant.

I am of the firm view that the Respondent cannot be allowed to justly enrich himself to the detriment of the Appellant. The principle of unjust enrichment must be made to bear. The Respondent freely entered into loan agreements with a banking institution and benefited from said loans by receiving various sums of money advanced to him under the loan agreement. The Respondent cannot be allowed to rely on frivolous excuses and with impunity continue to enrich itself from the benefits it received from the loans. The bank’s loan was sourced from various customers of the bank who are at the negative receiving end of a bad loan. The Respondent in one of his various letters to the appellant stated that he had been able to complete the uncompleted building he initially used as collateral for the loans. The cavalier and unconscionable treatment of the bank by the Respondent should be deprecated.

I cannot end this judgment without mentioning the distasteful trend in the briefs of some learned counsel. Our profession is based on mutual respect. The learned Appellant’s counsel’s brief was replete with insulting and impertinent references to the learned trial judge. The complaints against the judgment of any superior court of record can always be politely articulated by competent counsel.

In my humble view, the unprofessional language used by Mr. A. U. Osunde Esq., from the chambers of Olayiwola Afolabi & Co. did not do him or the chambers any credit.

In sum, the appeal is meritorious and it is hereby allowed. This appeal is also a rehearing and this court is empowered to grant the reliefs sought by this appeal which is to grant all the claims of the Appellant at the trial court. I am satisfied that the claims were proved by the evidence led at the trial court. In the circumstances the following orders are made –
(1) Judgment is entered for the Plaintiff/Appellant as per its claims as contained in paragraph 31(i) and (ii) of the statement of claim.
(2) The judgment of Hon. Justice E. F. Ikpomwen of the Edo state High Court on 5th October, 2011 in suit No. HAW/10/2009 is hereby set aside.
(3) The sum of N50,000.00 as costs against the Respondent in favour of the Appellant. Appeal Allowed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, J.C.A. I am so much in agreement with the manner in which the sole Issue identified for the determination of the appeal was resolved given the exposition of the law on the Issue that I have nothing useful to add to the lucid lead judgment.

In the circumstances, I too, find the appeal to be meritorious and allow the same. The orders made in the lead Judgment are hereby also made by me.

TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of reading the draft of the judgment rendered and just delivered by my learned brother H. M. OGUNWUMIJU, J.C.A., with whom I agree that this appeal has onions and ought to be allowed. I, allow it accordingly.

Let me chip in a few words in support of his Lordship’s reasoning and conclusion in the lead judgment.
The facts of the case at the trial court are adumbrated in the lead judgment. I need not rehash them again. I have perused the documentary evidence tendered by the appellant.

It is clear to me that Exhibit E, the application for loan dated 25/1/2004 and Exhibit F, the letter of offer of the loan to the respondent dated 18/9/2004 are foundational to the transaction between the parties. I found it very curious and indeed inexplicable why the learned trial judge said that he could not connect Exhibit E with Exhibit F. The two documentary exhibits speak for themselves. Furthermore, with Exhibit K2 at page 50 of the record of appeal, which is as clear as crystal and an admission of the respondent’s indebtedness to the appellant, it is incomprehensible for the learned trial judge to have held at page 150 of the record of appeal, inter alia:

“I can make no sense of his claim based on the documents.”

Furthermore, his Lordship said: the appellant’s claim

“is not supported by any credible documents.”

I must say that nothing can be farther from the truth.

Documentary evidence remains the best form of evidence in proving a claim. Agbareh v. Mimrah (2008) 2 NWLR (Pt. 1071) 378 at 441; Attorney General, Bendel State v. UBA (1986) 4 NWLR (Pt. 37) 547.

The appellant proffered an unchallenged and uncontradicted documentary and oral evidence in support of her claim which was proved minimally. Thus, where the evidence proffered by a party goes one way without anything to the contrary, the standard of proof is minimal. Newbreed Organization v. Erhomo-sele (2006) 140 LRNC 2064 at 2090; Ogunjomo v. Ademola & Ors (1995) 4 SCNJ 45; Balogun v. UBA (1992) 6 NWLR (Pt. 247) 336.

So also it is trite that where a defendant refused to defend a claim, as it was in this case at the trial, the burden of proof on the appellant was minimal. Khaled Barakat Shami B. UBA Plc (2010) 2 SCJN 23 at 39-40.

Of course, where the evidence given by a witness may be unchallenged by the opposing party, the court still had its primary duty to evaluate the said evidence for its credibility or cogency before it attaches any weight to it. Hence, the court does not accept any evidence, hook, line and sinker, just because it was not challenged. Attorney General, Oyo State v. Fairlakes Hotels Ltd (1988) 5 NWLR (Pt. 92) 1. However, in the circumstances of this case, the learned trial Judge did not properly evaluate the documentary evidence tendered by the appellant in proof of her claim against the respondent.

Instead of performing his role as an umpire and dispassionately assessing and evaluating the documentary evidence at his disposal, the learned trial judge needlessly decided to pick holes and raising issues suo motu on the appellant’s claim.
That certainly, is not the quitessence of an impartial judge.
“The correct position of a judge is that of an impartial umpire. He cannot make a new case for either party different from the case brought before him by the Plaintiff. A judge is not to take any step in a proceedings which can even remotely be taken or give the impression that he is inclining to one side against the other. He should maintain his impartiality through out the proceedings, hence he must allow the parties to fight their respective fights on their own initiative and not to suggest any step to be taken by them. For example, he cannot suggest that an application be made by a party.”
Per Nnaemeka-Agu, JSC, in Arubo v. Aiyelene (1993) 3 NWLR (Pt. 280) 126 at 142 – 143.
Further see Richard Nekpenekpen v. Egbemhon-Khaye (2014) LPELR-22335 (CA); Odutola v. Mabogunje (2013) 1 SCNJ 175 at 214; Ojo v. Oseni & Anor (1987) 4 NWLR (Pt. 66) 622 at 635; Orizu v. Anyaegbunam (1978) 5 SC 21; Ajoke v. Amusa Oba & Ors (1962) 1 All NLR 73 at 82.

I am clearly on the same page with my Lord’s admonition in the lead judgment to learned appellant’s counsel and only wish to add that a good counsel, being a minister in the sacred temple of justice, would refrain himself from the use of intemperate language either in the open court or in briefs of argument. It is a truism that a person who defecates in a stream and fountain of water from where he fetches water to drink, would himself drink the polluted water. A word is enough for the wise!

With these few words of mine, and the fuller reasons adumbrated in the lead judgment, the appeal succeeds. Hence, the judgment of E. F. Ikpomwen, J., in Suit No. HAW/10/2009 dated 5th October, 2011 is set aside.

The claim of the appellant succeeded as per paragraph 31(i) & (ii) of the statement of claim.

I, too award the costs of N50,000.00 in favour of the appellant against the respondent.

Appearances

E. O. Afolabi with him D. A. Uhunmwangho Esq., Miss E. E. Oisamoje, Miss E. D. Ibojo, Miss E. O. Adun, O. Owojehri For Appellant

AND

Ademola Ekundayo For Respondent