AFRIBANK NIGERIA PLC. V. MEDICAL CONSULTANT SERVICES LTD. & ANOR. (2011)

AFRIBANK NIGERIA PLC. V. MEDICAL CONSULTANT SERVICES LTD. & ANOR.

(2011)LCN/4311(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of February, 2011

CA/L/73/02_2

RATIO

AMENDMENT OF MISNOMER: WHETHER THE NON-MAKING OF AN APPLICATION TO AMEND A MISNOMER WILL ORDINARILY DEFEAT A CLAIM ON THE GROUND OF NON COMPLIANCE WITH THE RULES OF THE COURT

SUMMARY JUDGMENT PROCEDURE: CIRCUMSTANCE UNDER WHICH A DEFENDANT IN AN ACTION FOR SUMMARY JUDGMENT WILL BE ALLOWED TO DEFEND

In MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR PT. 144, PAGE 283, this court held that for a Defendant in an action for summary judgment to be allowed into defence after a prima facie case had been made out, the defence must not be a sham defence. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

SUMMARY JUDGMENT PROCEDURE: OBJECT OF THE SUMMARY JUDGMENT PROCEDURE

In THOR V. FCMB (2005), 128 LRCN 1445, in unanimously allowing the appeal, the Supreme Court in an action for summary Judgment had this to say: “For a better appreciation, Order 10 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules now Order 11 has two limbs:…. The object of summary Judgment procedure is to obtain quick judgment when there is no defence to the action as the procedure is similar to the undefended list procedure designed to obtain judgment in especially in liquidated demand cases without the need for a full trial where the party cannot satisfy the court that it should be allowed to defend the action. The nature of the defence must be good on its merits and not a manipulative and delaying tactics as done by the Appellant in this case”. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

BURDEN OF PROOF: WHO HAS THE BURDEN OF PROVING THE EXISTENCE OF A FACT

A party who alleges the existence of a fact has the burden of proving that fact. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES:

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

AFRIBANK NIGERIA PLC. – Appellant(s)

AND

1. MEDICAL CONSULTANT SERVICES LTD.
2. MARYLAND MEDICAL CENTRE – Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice Y.A. Adesanya sitting at the High Court of Lagos state, delivered on the 25th of January, 2002. The Respondents as Plaintiffs in the lower court commenced an action against the Appellant by a specially endorsed writ of summons and statement of claim dated 19th March, 2001 claiming the sum of N2,329,970.50 being unpaid medical bills for medical services rendered to the staff of the Appellant under an agreement for medical services made between the Respondents and the Appellant dated 1st January, 1994.
The Appellant, through its counsel entered a conditional appearance to the suit and filed a statement of defence dated 11/4/2001 and 15/6/2001 respectively. Thereafter, the Respondents filed a summons for Judgment under order 11 of the High court of Lagos state (Civil Procedure) Rules 1994 dated 16/10/2001. In response, the Appellant filed an affidavit showing cause dated 5/11/2001 and an amended statement of Defence.

On the 11th of December, 2001, the lower court heard argument on the summons for Judgment and on the 25th of January, 2002 delivered its ruling refusing to grant leave to the Appellant to defend the action and entered final judgment in favour of the Respondents. The Appellant is aggrieved and has appealed against that ruling and upon 4 grounds of Appeal. By leave granted for a departure from the Rules of this court the Appellant filed his brief of Argument along with the records of appeal compiled by the Registrar of the lower court as record of appeal and it was deemed as properly filed and served.
The Respondents’ brief of Argument was filed out of time and deemed filed and served on 19/2/07.
The Appellant raised 4 issues for determination, whilst the Respondents raised 2 issues. The Appellant’s issues are encapsulated in the 2 issues raised by the Respondents and I shall therefore treat this appeal on the basis of the 2 issues of the Respondents. Before then, I shall reproduce the Appellant’s issues for the purpose of clarity. They are as follows:

Issue No. 1
Whether the trial Judge properly in his Judgment held
“that the defendant has been properly described or referred to as “Afribank Nigeria Plc” in subsequent processes for example in the further Affidavit and Reply and orally during argument on this application more so the proper name of the defendant in the subsequent affidavit filed by the Plaintiffs has not been challenged by the Defendant and so it is deemed admitted to the extent of the subsequent affidavit, I therefore hold that the reference to – “Afribank Plc” is merely a misnomer which has been remedied and that case of AGBONMAGBE V. GENERAL MANAGER GB OLLIVANT (supra) does not apply.”

Issues No. 2
Whether the learned trial Judge was right in omitting or neglecting to determine whether or not the 2nd Plaintiff “Maryland Medical Centre” is a juristic person.

Issue No. 3
Whether the trial Judge was right in holding that there is no lack of privity of contract as to prevent the 1st Plaintiff from instituting this action.

Issues No. 4
Whether the Judgment of the learned trial Judge dismissing the defendant’s application to defend the suit on the merit can be supported in the circumstances of the facts deposed to in affidavit showing cause and Amended statement of Defence (Grounds 3).
The Respondents’ issues are couched thus:
i. whether, having regard to the parties named in the writ of summons and statement of claim dated 19th March 2001 filed before the lower court, the suit was incompetent (Appellant’s issues, 1, 2 and 3).
ii. Whether having regard to the evidence before the lower court, the lower court was in error to have entered final judgment in favour of the Respondents under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 1994. (Appellant’s issue 4).

Arguing the 1st issue above which is the same with Appellant’s issues 1, 2, and 3 Appellant’s counsel submitted that neither the 2nd plaintiff nor Defendant are natural or juristic persons and that changing the name of the Defendant to Afribank Nigeria Plc in the Affidavit and Reply different from the name contained in the writ of summons and statement of claim without leave of court did not make the parties legal personalities as constituted in the suit.
That the plaintiffs did not exhibit the certificate of incorporation or registration of the 2nd plaintiff or that of the Defendant. The cases of NDOMA EGBA V. CHUKWU OGOR (2004) 2 SC PT.107 AT 136 and FAWEHINMI V. NIGERIA BAR ASSOCIATION (NO. 2) 1989 2 NWLR (PT. 105) 558 were cited in aid.
It was also submitted that the Respondents did seek and obtain leave of court before the amendment and so he was in violation of the Rules of Court. Order 26 Rule 1 of the High Court of Lagos State Civil Procedure Rules now Order 24 of the 2004 Rules was referred to.
Counsel submitted that even if the name of the 2nd Plaintiff was a misnomer, the leave of the court was necessary in order to substitute the name.

The case of AGBONMAGBE BANK LTD. V. G.B. OLLIVANT LTD. (1961) ALL NLR 725 AT 727/728 and WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC 96 AT 40 SC wherein the Supreme Court held:
“Non compliance with the rules of court do not prima facie invalidate proceedings unless reasons for such non compliance are not advanced to the court and in addition the party in breach fails to put before the court sufficient material upon which to exercise its discretion to waive or overlook the omission…. prima facie if no excuse is offered no indulgence should be granted.” were referred to.
That the trial Judge erred in hording that the juristic personality of the 2nd Plaintiff and Defendant was established; that by section 137 of the Evidence Act, the Respondents as plaintiffs had the onus of proving their case and that only living and juristic persons could sue and be sued. The case of MANAGEMENT ENTERPRISES LIMITED V. OTUSANYA (1987) ANLR 375 AT 387 & 389 referred to, as well, as order 13 rule 42 of the High court of Lagos State (Civil Procedure Rules) 1994, section 18 of the companies and Allied Matters Act 1990, and CIVIL PROCEDURE IN NIGERIA, 1990 Edition page 65 by Fedelis Nwadialo.
Counsel urged that the name of the 2nd Plaintiff be struck out from the action and consequentially to strike out paragraph 15 of the statement of claim. It was further argued that as the issue of juristic personality of the parties had been raised as an issue, it was duty bound on the court to have determined that issue joined; and that failure to do so had occasioned a miscarriage of justice.

On the Appellant’s third issue he had argued that there was no privity of contract between the 1st Plaintiff and the Defendant as both parties were unknown to the Medical services Agreement. Counsel referred to Fidelis Nwadialo’s Civil Procedure in Nigeria 1990 Edition, page 101, wherein the learned Author stated thus:
“Obviously the parties to a contract are also the proper parties to an action on that contract. They are the only persons having legal interest in the performance or breach of the contract. A contract can not be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give the right to sue on it.’ See NEGBENGBE V. NEGBEBOR (7977) 7 NSCC 200 AT 205.
The Respondents’ counsel, in his address on the 1st issue formulated, referred this court to pages 17 to 23 of the record of Appeal and invited it to note that although the Agreement was headed “Maryland Medical Centre” and “Afribank Nigeria Plc.”, but the agreement was signed by one Biobaku “For and on behalf of Medical Consultant Services Ltd.” Secondly, the medical bills and correspondences were sent to the Appellant pursuant to the transaction founded on the agreement, were made on the letter heading of the Medical Consultant Services Ltd. The letter and bills are contained at pages 25 – 49 of the record. The Appellant’s response to those letters and the making of payments to “Medical Consultant Services Ltd.,” and the payment advise dated 19/9/95 contained in the supplementary Record of appeal compiled by the Appellant was referred to. Counsel said the 1st Respondent was a party to the agreement and was so acknowledged by the appellant who made payment to it; that the endorsement on the contract and the conduct of the Appellant proved this; that it is not true that the Appellant had no business relationship with the 1st Respondent. Counsel urged this court to affirm the ruling of the lower court and hold that there was a contractual relationship between the Appellant and the 1st Respondent as the agreement was signed for and on its behalf.

The 2nd Respondent was said to be a non juristic persona by the Appellant and that failure to have that fact determined had occasioned a miscarriage of justice. Respondents’ counsel submitted that that question was no longer an issue at the trial in view of the pleadings filed by the parties. That in the Plaintiffs” i.e. Respondents’ pleadings, it was pleaded that the 2nd Respondent was the organ through which the 1st Respondent carried on business. In other words the 1st and 2nd Respondents were one and the same entity. The point, argued the Respondents’ counsel’ is that the two Respondents are not two distinct entities making claims against the Appellant. That the addition of the 2nd Respondent may have been an unnecessary formality, in view of the pleadings’ That Appellant never denied the pleadings relating to the Respondents nor aver that they were distinct. That that aspect was not an issue at the trial. That the juristic personality of the 2nd Respondent was not raised as an issue, more so that it had been settled in paragraphs 1 and 2 of the statement of claim; that it was uncalled for to expect the trial Judge to ask questions on the juristic personam of the 2nd Respondent after the pleadings and counsel’s address had shown that it was owned by the 1st Respondent and carried out business ‘in that name. The 1st Respondent was a legal or juristic personality of the 2nd Respondent was not in issue and the question was irrelevant to the claim and no miscarriage of justice had been occasioned by the Ruling as the action was maintained by the 1st Respondent. Additionally, Respondent’s counsel submitted that even if the 2nd Plaintiff/2nd Respondent is said to be a non juristic personality, the only remedy will be to strike it out and the suit will still be maintainable by the 1st Respondent with the same result.

On the juristic personality of the Defendant as AFRIBANK PLC at the lower court it was submitted that it was a misnomer or mistake, in naming a known defendant by a wrong name. Counsel submits that that did not vitiate the fact that the identity of the Defendant was known. That the lower court was right in referring to all subsequent processes filed by the Respondents wherein he called the Appellant by the correct name and all the exhibits attached to the affidavits at the lower court showed a claim against the “Afribank Nigeria Plc,” pages 16 – 48 of the Record of appeal as well as the supplementary Record of Appeal referred to. Learned counsel referred to the case of A.B, MANUFACTURING CO. V. COSTAIN (WA.) LTD. (1994) 1 NWLR (PT360) 112 wherein this court held as follows:
“When both parties are quite familiar with the entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing, then there can be no problem of mistaken identity to justify striking out the action. Misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.”

That the parties were familiar with the entity in the writ of summons; – that only one entity is known as Afribank Nigeria that trades as Afribank and that by the proceedings at the lower court, the parties were not misled. Learned counsel invites this court to the exhibits before the court showing the transaction leading to the suit and the averments in amended statement of Defence filed by the Appellants, specifically paragraph 13 of page 70 of the Record showing that the parties were not misled as regards their identity. Counsel urged on this issue that parties were not misled; and the suit was not incompetent by the reason of the parties named in the writ of summons. That the trial Judge rightly assumed jurisdiction.

A careful consideration of the arguments of the respective counsel for the parties shows that the complaint touches on the juristic personality and hence competence of the Respondents to institute the suit, and the legal status of the Appellant as Defendant. I have carefully listened to the parties counsel through their briefs and perused the Medical Services agreement between the parties and find as the trial court did that the parties are clearly stated therein as respecting the Plaintiff. The Agreement clearly shows the Medical Services agreement as being between” Medical Consultant Services Ltd.” as the provider of the Medical Services and as plaintiff. It was signed on its behalf as the provider of the medical services.
Medical Consultant Services Ltd. is a corporate entity whose juristic personality, was not challenged or raised at the trial court. The issue of not determining it did not arise at the trial and was therefore not an issue. Its non consideration had therefore, not occasioned any miscarriage of justice.
Maryland Medical Centre was expressed as a party to the agreement, but signing for Medical Consultant Services Ltd. prima facie had subsumed that entity into the Medical Consultant Services and without any objection as the agreement had been signed as such.
Courts do not make contract for parties. The courts will interpret and enforce the written agreement of parties as expressed.

The cause of dealings showed clearly that the 1st Respondent was not only named in the agreement as a party, but was indeed a party as claims submitted by her were acknowledged and paid for on some occasions. The Defendant/Appellant even in its defence said it had paid the alleged debts into 2 accounts – opened by the Respondent. If the Appellant never knew and accepted the Respondents as contractual entities whom it dealt with and owed debts, how come the admission and averment of making payments as stated?
Furthermore I agree with the Respondents’ counsel when he argues that the identity of the 2nd Respondent and status was submerged into the 1st Respondent: even if that identity were seen as distinct and not juristic, (which I do not agree). It is my view, in agreement with the Respondents’ counsel that the action was still maintainable against the disclosed juristic personam – the 1st Defendant/Appellant on whose behalf the contract was signed.
On the question of the juristic personality of the Defendant/appellant as Afribank Plc it is my view that it is a mere misnomer and that the Appellant was in no way misled thereby, when it was sued in that name as all the parties before the suit showed clearly that the parties were ad idem as to their identities and contractual relationship. The use of the name Afribank Plc” in the writ of summons was a misnomer and did not vitiate the proceedings. See A.B. MANUFACTURING CO. V. COSTAIN (W.A.) LTD SUPRA.

It should be noted that although where there is a misnomer, a party may apply for the amendment of the names of the parties so as to reflect the correct and legal name of the party or name by which it may sue or be sued, the non making of the application will not ordinarily defeat the claim on the ground of non compliance with the rules, as submitted by the Appellant’s counsel in his brief of argument. This is because the claim can only be defeated if no reasons for the non-compliance with the Rules of court are advanced to the court and in addition if the party in breach fails to put before the court sufficient material upon which to exercise its discretion to waive or overlook the omission….See WILLIAMS V. HOPERISING VOLUNTARY FUNDS SOCIETY (1982) NSCC 36 AT 39/40 (SC). The Respondent did not amend the name of the Respondent but had pleaded in his specially endorsed writ and statement of claim that the 1st Defendant is a limited liability company duly registered in Nigeria and that the 2nd Plaintiff is the organ through which the 1st Plaintiff carries on business in the aforesaid address. See paragraphs 1 and 2 of the statement of claim at page 4 of the Record of Appeal. The pleadings has shown prima facie, that there was no reason to advance for non-compliance with any rule to seek for amendment of the Defendant’s name. This is because, by paragraph 3 of the Statement of Claim the Defendant has been pleaded as follows:
“3 – The Defendant is a Public Limited liability company with its registered office at No. 51/55 Broad Street, Lagos, Nigeria and carries on business as a licensed Banker.” The Respondent had put sufficient materials before the court to enable her waive or overlook the omission to amend the name Afribank. In this matter, the Respondent had prima facie shown excuse or justification by the pleadings, why an amendment was not sought, and therefore the proceedings are not vitiated. The above consideration is in addition to my firm view that the pleading at paragraph 3 of the Statement of Claim supra, clearly shows that the Defendant was a juristic personality known to law and was properly so sued.

I agree entirely that the averments of the Defendant at paragraph 13 and 14 of the Statement of Defence contained at page 70 of the Record of Appeal wherein it is averred as follows:
13 – “in reply to paragraphs 9, 10 and 12 of the statement of claim the Defendant avers that after due verifications of the bills submitted by the Plaintiffs the Defendant effected payment of a total sum of N2,849,282 to the Plaintiff.
14. The Defendant states that it effected these payments referred to in paragraph 3 above through bank drafts and crediting account Nos. 31651391 and 36152373 maintained by the Plaintiffs with the Defendant. The Defendant pleads the drafts, the statement of account and the credit advises and puts the Plaintiff on Notice to produce the originals at the trial as the Defendant would rely on them” shows that the parties related one – to another in a business and their identities was not in doubt one to another. The Appellant avers at paragraph 13 to have settled debts to the Plaintiffs/Respondent. He proceeded at paragraph 14 of the Statement of Defence to acknowledge and claim that the 2 Respondents maintained an account with her. How come that it now denies the existence of the Defendants as legal or juristic persons and worst as having no privity of contract with the 1st Respondent, both of whom it paid monies in settlement of claims to?

For the aforesaid reasons, I accept and agree with the submission of the Respondents’ counsel that the suit at the lower court was not incompetent by reason of the parties named in the writ of summons and the learned trial Judge was right in assuming jurisdiction.
On issue No. 2 whether the learned trial Judge was right in entering judgment for the Respondents.
Respondents’ counsel argued that the conditions for entering judgment under Order 11 Rules 1 and 2 of the High Court Rules of Lagos State (Civil Procedure) had been met. That the claim was for a liquidated money demand, a debt in the sum of N2,329,970.50. See pages 1 – 3 of the record ‘of Appeal, secondly that the action was commenced by a specially endorsed writ of summons.
3. That Defendant had entered appearance to the suit and filed a statement of defence before the summons for Judgment was brought.
4. That the summons for Judgment had a verifying affidavit deposed to in accordance with the Rules and in compliance with the Evidence Act as to who may depose to an affidavit. It was also submitted that the indebtedness had been proved at the trial and admitted by the pleadings and so denial at the trial was unfounded; that the Appellant had no defence to the claim.

Respondent submitted that the defence was spurious and baseless as the basis for the denial was not stated; that the crucial issues were not addressed. Appellant only said the procedure for the submission of bills were not met and that he had paid all the bills in one swoop; he said the bills outstanding was only for the sum shown in the sample bills exhibited. He never exhibited any documents in proof of the alleged payments made as claimed by the Appellant. There was no defence disclosed to the claim to have enabled the court let the Respondent to defend the suit.
In MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR PT. 144, PAGE 283, this court held that for a Defendant in an action for summary judgment to be allowed into defence after a prima facie case had been made out, the defence must not be a sham defence.

In THOR V. FCMB (2005), 128 LRCN 1445, in unanimously allowing the appeal, the Supreme Court in an action for summary Judgment had this to say:
“For a better appreciation, Order 10 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules now Order 11 has two limbs:….
The object of summary Judgment procedure is to obtain quick judgment when there is no defence to the action as the procedure is similar to the undefended list procedure designed to obtain judgment in especially in liquidated demand cases without the need for a full trial where the party cannot satisfy the court that it should be allowed to defend the action. The nature of the defence must be good on its merits and not a manipulative and delaying tactics as done by the Appellant in this case”.

Rather than admit liability, appellant denied liability and said it had paid. It did not annex proof of the alleged payments by way of copies of the drafts paid or copies of the statements of accounts or, details thereof but took resort or shelter in the technical law of evidence as to the nature or character of evidence by giving Notice to the Respondents to produce originals of documents, of which he was the one that claimed existed and which the Plaintiff/Respondent denied. The burden was on the Appellant to have annexed such documents as the onus was on him to prove his case (assertion) of the alleged payments by way of copies of the drafts paid or copies of the statements of accounts or details thereof rather than resort to or shelter in the technical law of evidence as to the nature or character of evidence by giving Notice to the Respondents to produce originals of documents, of which he was the one that claimed existed and which the Plaintiff/Respondent denied. The burden was on the Appellant to have annexed such documents to prove his case (assertion) by virtue of section 137 and section 139 Evidence Act.
A party who alleges the existence of a fact has the burden of proving that fact. The Appellant had the burden of deposing to and exhibiting documents in proof of payments made as it had a claimed; this is more so that it claimed to have made some payments which were denied.
The Appellant ought to have “condescended” into giving particulars of payments so as to allow her to be let in defence. In THOR V. FCMB SUPRA EDOZIE JSC AT PAGES 12460, EE.JJ AT 146A had this to say in a situation where the party as the Appellant herein rather than proffer defence on the merit resort to a sham defence.
“in my view, if the court were to let the Defendant to defend upon a mere application for interrogatories and notice to admit fact, that would defeat the object of the summary Judgment procedure as such an application could be nothing but be a ploy to give semblance to a defence to the action when none exists. A desire to investigate alleged obscurities and a hope that something will turn up after the investigation cannot separately or in unison amount to sufficient reason for refusing to enter summary judgment for the Plaintiff”.

On the basis of this authority, I am in agreement with the submissions of the Respondent that the lower court was right to have entered summary judgment in favour of the Respondent in view of the facts averred in the originating summons and the reply thereto.
I am, for the foregoing reasons, of the humble view that the summary Judgment was rightly entered, and the Appellant was also rightly refused the opportunity of entering defence as there was none disclosed let alone a reasonable one. Accordingly, I resolve all the 2 issues raised by the Respondents in their favour and against the Appellant, that is to say all the 4 issues formulated by the Appellant are resolved against it.

The appeal against the Judgment appealed from is therefore dismissed and the Ruling in suit No. ID/702/2001 delivered on 25/1/2002 is accordingly affirmed.
Costs – A cost of N30,000 only is awarded in favour of the Respondents.

ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of a preview of the draft of the judgment just delivered by my learned brother Danjuma, J.C.A. I found his opinion on all the issues in concurrence with mine and also adopt them as my own. I therefore agree that the appeal ought to be dismissed. I will however add my comments only for the purpose of emphasis. I agree with my learned brother that appellant’s denial of liability was not sufficient. Appellant ought to have exhibited documents in proof of payments made as it had claimed. It is trite that he who asserts must prove that those facts exist. See sections 135(1), & (2) and 137 of the Evidence Act and the cases of Udah v. Elizabeth Idemudia (1998) 3 sc 50; (1999) 2 SCNJ 36; Ezemba v. Ibeneme & Anor. (2004) 7 SC (pt 1) 45 and NNPC v. Lutin Investments Ltd. & Anor (2006) 1 SC (Pt 11) 49. The materials placed before the court was not sufficient to allow the defendant/appellant to defend the suit. In Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt 144) 283, the Supreme Court held that for a defendant in an action for summary judgment to be let in to defend after a prima facie case had been made out, the defence must not be a sham defence. See also Thor v. FCMB (2005) 128 LRNN 1445 and Nishizawa Limited v. Jethwani (1934) NSCC 877 ratio 3 at 878 – 879. I am of the firm view that the learned trial judge rightly entered summary judgment in favour of the respondents.

For the above reason and for the fuller reasons detailed in the leading judgment, I too dismiss the appeal and affirm the Ruling of the High Court of Lagos State, delivered by Adesanya J. on 25/1/2002. I abide by the order made as to costs.

JOHN INYANG OKORO, J.C.A.: I was obliged and I read before now a copy of the Judgment just delivered by my learned brother, Danjuma, JCA and I agree with him that this appeal lacks merit and should be dismissed. My brother has admirably dealt with all the salient issues submitted for the determination of this appeal and I adopt both his reasons and conclusions as mine even as I also dismiss the appeal and abide by the order as to costs.

Appearances

F.S. Ogundana; For Appellant

AND

Oranmiyan Biobaku For Respondent