ARAB CONSTRUCTION LTD. & ANOR V. ASUQUO SUNDAY ISAAC
(2012)LCN/5496(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/C/142/09
RATIO
DAMAGES: MEANING OF DAMAGES
Damages are a form of financial reward for a plaintiff who has suffered from a wrong caused or precipitated by the wrongful act or conduct of a defendant and so where there is no wrong, there cannot be damages. See IJEBU ODE L.G.A. v. BALOGUN (1991) l SCNJ 1, (91); ONAGORUWA v IGP (1991) 5 NWLR (198) 593. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES MADE BY THE TRIAL COURT
At the onset, I would want to restate the principle of law that ordinarily, an appellate court does not make a practice of casually interfering with the award of damages made by a trial or lower court. An appellate court only interferes with the award of damages by a trial or lower court in recognised circumstances which include:-
- a) when the trial court or lower court had acted under wrong principles of law in the award,
- b) when the trial/lower court had taken into account in its assessment, immaterial factors or
- c) failed to consider material factors in the award of damages
- d) when the amount awarded was either too low or too high as to make it an entirely erroneous estimate of the damages.
See BALOGUN v. LABIRAN (1988) 3 NWLR (80) 66; OGU v. IHEJIRICA (1991) 4 NWLR (185) 388; INT’L MESSENGERS (NIG) LTD. v. PEGOFOR IND. LTD. (2005) 5 SC (1) 38; OKOKO v. BAKOLO (2006) ALL FWLR (336) 201. PER MOHAMMED LAWAL GARBA, J.C.A.
DAMAGES: CLASSIFICATION OF DAMAGES
In addition; damages are classified generally into general and special damages. General damages are damages which the law in its wisdom, presumes to flow automatically from the wrong inflicted on a claimant by a defendant from whom they are claimed and do not need or have to be specifically, pleaded.
Special damages on the other hand are specific and peculiar losses suffered as a result of the wrongful act or contract of a defendant. The damages are special in the sense that they are easily discernible and quantifiable and which does not rest on a puerile conception or notion, which give rise to speculation or assumption. See XTOUDOS SERV. NIG. LTD. v. TAISEI (W.A.) LTD. (2006) ALL FWLR (333) 1640; IVERE v. B.F. & F. M. LTD. (2008) 12 MJSC, 102; UBN v AJABULE (2011) 12 MJSC (II) 155; N.B.B. CO. LTD. v ACB LTD (2004) 1 SC 32. PER MOHAMMED LAWAL GARBA, J.C.A.
DAMAGES: WHETHER A CLAIM FOR SPECIAL DAMAGES WILL SUCCEED BASED ON ADMISSION
However on whether a claim for special damages will succeed based on admission, the Supreme Court in the very recent case of NNPC v. CLIFCO NIG. LTD. (2011) 4 MJSC 142 at 174 had held that:-
“A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357.”
Put simply, the statement of the law above by apex court is that because special damages are exceptional and specific, they will not succeed and be granted as a matter of course, merely on admission, express or otherwise, even where pleaded as required by the law. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHAT CONSTITUTES A CREDIBLE EVIDENCE
Credible evidence is reasonable, probable and cogent evidence in respect of the transaction or event it describes, given from a credible course which makes it easy to believe. AGBI v. OGBE (2005) 8 NWLR (926) 40 at 134. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
ARAB CONSTRUCTION LTD. & ANOR Appellant(s)
AND
ASUQUO SUNDAY ISAAC Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Cross River State High Court sitting at Calabar delivered on the 2/3/09 in Suit No. 317/2008 which was filed by the Respondent herein, against the Appellants. By the writ of summons and statement of claim in the suit, the Respondent had made claims as follows; against the Appellants:-
“1. The plaintiff seeks a declaration that the termination of appointment by the 1st defendant is wrongful as same was predicated on an allegation of stealing without according him fair hearing in a competent court.
2. Claims of N2, 000,000.00 damages and unpaid claims and entitlements while the employment lasted.”
The Appellants though served with the writ and statement of the Respondent’s claims did not appear or file a statement of defence to the claims. The Respondent testified as the, lone witness in support of his claim and identified the letter of termination of appointment, attached to the statement of claim, and it was admitted in evidence as Exh. 1.
After hearing address from the counsel for the Respondent, the High Court entered judgment in favour of the Respondent primarily on the ground that the Appellants were deemed to have admitted the claims since they did not file a statement of defence or testify in the case.
Being aggrieved by the said decision, the Appellants filed a notice and grounds of appeal on the 22/5/09 against it. The grounds of the appeal are that:
“GROUND 1:
The learned trial judge erred in law by failing to give effect to the clear and unambiguous content of Exh. ‘A’ which clearly show the reason for the termination of the employment of the Respondent but relied on oral evidence to contradict the content of the exhibit.
GROUND 2:
The learned trial judge erred in law by awarding to the plaintiff the sum of N2, 000,000.00 (Two Million Naira) claimed by him as “unpaid claims, bills and other entitlements” when same was not specifically proved.”
In the Amended Appellants’ brief filed on the 20/10/09 but deemed on the 3/2/2011, a lone issue was distilled from the above grounds of appeal and submitted for decision in the appeal. It is as follows:
“Whether from the totality of the evidence before the trial court, the Respondent was entitled to his claim of N2, 000,000.00.”
In the Respondent’s brief filed on the 2/3/11, the lone issue was put in the following terms:-
“Whether the learned trial judge was right to have awarded general damages of N2, 000,000.00 (Two Million Naira) only.”
The submissions by Mr. J. A. Dada, Esq., the learned counsel who settled the Appellants’ brief, are that in resolving the issue for determination, it is significant to note as follows:
i) The Respondent’s case was not one litigated on the undefended list procedure. In other words, it was not a liquidated money demand.
ii) In the Respondent’s 13 paragraph’s statement of claim as supported by his oral testimony of about four paragraphs (contained on pages 3-4 and 28-29 respectively of the records of proceedings) how the sum of N2, 000,000.00 claimed by the Respondent was arrived at was neither pleaded, particularized nor proved
iii) In Exh. 1, which is the letter of termination of appointment of the Respondent, the reason for the termination of his appointment was unequivocally stated to be that his “Services with the Company as a Bulduzer Operator will no longer be required” (Paragraph 1, pages 5 of the record).
iv) The learned trial judge in finding in favour of the Respondent held inter alia that the Appellants did not file any statement of defence to join issues with the respondent and that “what this means in law is that the plaintiff’s claim and evidence led in court is unchallenging and the court is entitled act and give effect to same”. Consequently, he awarded two million naira to the Respondent as claimed.
He said by the provisions of Sections 135 and 136 of the Evidence Act, the Respondent as plaintiff had the burden to demonstrate by the credible evidence that he is entitled to the reliefs he claimed and cannot rely on the weakness of the Appellants case or even absence of evidence from them. Reference was made to the cases of ATTORNEY-GENERAL, ANAMBRA STATE v. ONUSELOGUN (1987) 4 NWLR (66) 547; TOKIM v. FAGITE (1999) 10 NWLR (624) 588 and NIMANTEKS ASSOCIATES v. MARKO CONSTRUCTION CO. LTD. (1991) 2 NWLR (174) 411 as authorities for the submission. It was the contention of the counsel that from the evidence before the High Court, it is evident that the Respondent’s claim was essentially one for special damages which he failed to plead and prove, as required by law. According to him, paragraphs 7 and 12 of the statement of claim which appear relevant did not specifically plead and particularize the damages but that paragraph 7 was contradicted by the oral evidence of the Respondent on the number or times he was hospitalized during his employment with the 1st Respondent. The cases of NEKA LTD. v A.C.B. (2004) 17 NSCQR, 240 at 264; ATODEUS LTD. v TATSEI (2006) NSCQR 1185 and LACOED v EDUN (2004) 6 NWLR (870) 476 were cited on the requirement of the law on special damages and it was argued further that for instance, the Respondent did not give evidence of how much was the claim for hospital bills, his entitlement to be paid such bills, how much he was underpaid by way of salary or how much were the “unpaid claims, bills and other entitlements and what for.”
Learned counsel then submitted that since the Respondent’s claim has failed to meet the standard of proof required by law, the claims must fair and we were urged to so hold by allowing the appeal and dismissing the Respondent’s claim.
In his own submissions, Mr. N.T. Ojong, Esq. learned counsel for the Respondent, said that the Respondent did not expressly state in his statement of claim that the sum claimed represented special damages and that all items of damages were expressly stated to enhance the value. According to him, the High court had an unfettered prerogative on the award of damages and therefore entitled to award any amount as damages, relying on MOBIL OIL PROD. UNLTD. V. UDO (2008) 36 WRN 53 as authority. It was also his argument that since the Appellants did not join issues with the Respondent, they are deemed to have admitted that he was actually entitled to what he claimed, having given evidence in the discharge of the burden placed on him by law. Further, that the burden then shifted to the Appellants who did not give evidence and so Respondent is entitled to judgment, on the authority of inter alia, OMOJUVIGBE v. NIPOST (2010) 24 WRN, 68; OKOEBOR v. POLICE COUNCIL (2003) 40 WRN 93; ELEMA v. AKENZUA (2006) SCNJ 266.
In conclusion, it was submitted that the appeal lacks merit and should be dismissed. We were urged to affirm the decision of the High Court.
I would, before a consideration of the submissions by the learned counsel for the parties, say that the formulation of the issue by the learned counsel for the Appellants appears to be more precise on the complaint contained in the two (2) grounds of appeal. For that reason, I intend to determine the appeal on the basis of the Appellants’ issue and submissions made thereon is that the evidence given by the Respondent did not support the claim he made and so the High court was wrong in law to have entered judgment in his favour. Because the complaint in the issue centres and revolves around the evidence given by the Respondent which was brief, I can afford to set it out the way it was recorded by the High Court in the judgment appealed against. It appears at pages 30 – 31 of the record of appeal and as follows:-
“My name is Asuquo Sunday Isaac, residing at 16, Etinyin Abasi Street, Calabar. My occupation is Buldozer Operator. I know the defendants. 2nd defendant is my Project Manager. 1st defendant is my employer. I was a Buldozer operator. I started working with them in December, 2005; I was issued with appointment letter, but I have lost it. I worked with defendants for 3 years. My appointment was confirmed in writing. I had lost the confirmation letter. My salary was N37, 000.00 per month. I am no longer working with the company. The company (1st defendant) accused me of stealing Diesel, but I did not steal diesel or anything. I was not charged to court. Two of us were accused. That is why I am no longer working there. They wrote and terminated my appointment. The letter was admitted as Exh. 1.
As an operator, I was entitled to fringe benefits. I fell sick while working there, and was hospitalized; I was hospitalized for 10 times. 1st defendant did not pay me medical bills, while I was sick as they were supposed to. I was supposed to be paid my benefits’ before being sacked, but I was not paid by 1st defendant. I was entitled to be paid N2m (Two million naira). I was also not given any notice or salary in lieu of notice. I want court to order defendants to pay me N2, 000,000.00.”
For a full appreciation of the complaint in the Appellants’ issue, it is expedient to call in the High court’s assessment of the evidence given above. The High court now speaks for itself:-
“In the written address, plaintiff’s counsel formulated 3 issues for the determination of the court to wit:-
1. Whether plaintiff was an employee of the first defendant.
2. Whether his appointment was terminated, and
3. Whether the said termination was wrongful.
However, in my view the sole issue for determination is whether there is merit in this case to necessitate its success neither entered appearance, nor were represented by counsel. They did not also file any statement of defence to join issues with the plaintiff. What this means in law is that the plaintiff’s claim and evidence led in court is unchallenged and the court is entitled to act and give effect to same. See the case of BUHARI v. INEC (2008) 36 NSCQR 475.
However though in his statement of claim the plaintiff had claimed for a declaration that the termination of his appointment was wrongful, etc, he did not lead evidence to that effect. The law is trite that he is deemed to have abandoned the prayer, and this court cannot award same.
On the whole, I hold that the plaintiff’s evidence is credible and his case succeeds in part. Consequently judgment is hereby entered in favour of the plaintiff against the defendants as follows:
1. The defendants are hereby ordered to pay to the plaintiff the sum of N2m (Two Million Naira) being his unpaid claims, bills and, other entitlements while his employment lasted.
2. Cost of N20, 000.00 (Twenty Thousand Naira) is awarded in favour of the plaintiff against defendant.”
Apparent in the above decision by the High Court are the following:
a) that because the Appellants did not file a statement of defence and did not enter appearance in the case, the Respondent’s claim and evidence remained unchallenged
b) that the High court was entitled to give effect to it on the authority of BUHARI v INEC (2008) 36 NSCQR 475
c) Respondent did not lead evidence on wrongful termination of his employment and the declaration was refused or not made, and
d) judgment entered for the Respondent as per the endorsement No. 2 on the writ of summons which was repeated in paragraph 13 (2) of the statement of claim.
Worthy of particular note in the decision by the High Court is the fact that the claim in paragraph 13 (1) of the statement of claim by the Respondent for a declaration that the termination of his appointment was wrong and therefore null and void, was refused or not made because the Respondent did not give evidence on it. Specifically the High Court had found that it was abandoned, rightly so.
Let me point out that the alleged wrongful termination of appointment was the foundation and only basis on which the claims for damages were made by the Respondent against the Appellants. That was the wrongful act done or committed by the Appellants against the Respondent from which the Respondent could have suffered injuries for which damages were claimed. Without proof of any wrongful act by the Appellants against the Respondent, i.e. the alleged wrongful termination of his appointment, there could be no injury to the Respondent for which he would be entitled to claim damages from the Appellants. Damages are a form of financial reward for a plaintiff who has suffered from a wrong caused or precipitated by the wrongful act or conduct of a defendant and so where there is no wrong, there cannot be damages. See IJEBU ODE L.G.A. v. BALOGUN (1991) l SCNJ 1, (91); ONAGORUWA v IGP (1991) 5 NWLR (198) 593.
If the Respondent had abandoned the claim for wrongful termination of his employment by the 1st Appellant, on what ground or basis are the claims for damages predicated since damages are the consequences that flow from the alleged wrong committed or perpetrated by the Appellants from which the Respondent supposedly suffered injuries? Without a declaration that the termination of the Respondents appointment was in law wrongful, null and void, the claims for damages of whatever nature by the Respondent would be without any legal basis or foundation and cannot stand or be granted howsoever.
Since the claim for wrongful termination of appointment was abandoned by the Respondent, it is unnecessary for me to go into what the law requires from him in order to succeed on the claim. This position and finding would be enough ordinarily to warrant allowing the appeal and setting aside the award made by the High Court since it had no legal basis whatsoever.
However, proceeding on the assumption that the claim for damages, could be made even in the absence of a wrongful act committed by the Appellants against the Respondent, was there sufficient evidence to support the award made by the High Court to the Respondent?
At the onset, I would want to restate the principle of law that ordinarily, an appellate court does not make a practice of casually interfering with the award of damages made by a trial or lower court. An appellate court only interferes with the award of damages by a trial or lower court in recognised circumstances which include:-
a) when the trial court or lower court had acted under wrong principles of law in the award,
b) when the trial/lower court had taken into account in its assessment, immaterial factors or
c) failed to consider material factors in the award of damages
d) when the amount awarded was either too low or too high as to make it an entirely erroneous estimate of the damages.
See BALOGUN v. LABIRAN (1988) 3 NWLR (80) 66; OGU v. IHEJIRICA (1991) 4 NWLR (185) 388; INT’L MESSENGERS (NIG) LTD. v. PEGOFOR IND. LTD. (2005) 5 SC (1) 38; OKOKO v. BAKOLO (2006) ALL FWLR (336) 201.
In addition; damages are classified generally into general and special damages. General damages are damages which the law in its wisdom, presumes to flow automatically from the wrong inflicted on a claimant by a defendant from whom they are claimed and do not need or have to be specifically, pleaded.
Special damages on the other hand are specific and peculiar losses suffered as a result of the wrongful act or contract of a defendant. The damages are special in the sense that they are easily discernible and quantifiable and which does not rest on a puerile conception or notion, which give rise to speculation or assumption. See XTOUDOS SERV. NIG. LTD. v. TAISEI (W.A.) LTD. (2006) ALL FWLR (333) 1640; IVERE v. B.F. & F. M. LTD. (2008) 12 MJSC, 102; UBN v AJABULE (2011) 12 MJSC (II) 155; N.B.B. CO. LTD. v ACB LTD (2004) 1 SC 32.
In the Respondent’s claim for Two Million Naira (N2, 000,000.00) damages as set out in both the writ of summons and paragraph 13 (2) of the statement of claim “for unpaid claims, bills and other entitlements white the employment lasted”. Undoubtedly, the nature of these items are specific, discernible qualifiable and peculiar to the Respondent who alleged that he suffered them as a result of the wrongful termination of his appointment by the 1st Respondent.
However, no details, particulars, and other essential material were provided in the pleadings to make the assessment, quantification of the various sums in each of the general items of the damages claimed were provided or stated. Although the Respondent did not label the damages as special damages, they are not general damages because no unpaid claims, unpaid bills and other entitlements would be expected to automatically flow from the termination of the appointment of the Respondent. In other words, such itemized heads of damages are not what the law would presume to flow from a wrongful termination of appointment so as to qualify as general damages. The damages claimed by the Respondent have already been ascertained and fixed by him to be N2, 000,000.00, but the vital and material particulars and details of the various heads of the damages such as “unpaid claims”, “unpaid bill” and other entitlements” have not been provided in both the pleadings and evidence of the Respondent to satisfy the court that he indeed incurred or suffered such damages. These are matters within the particular and peculiar knowledge of the Respondent and he had the legal duty and burden to disclose and lay them before the court if he was to expect the court to award them in his favour. They are indisputably in the class of special damages which the law requires to be specifically pleaded and strictly proved by sufficient and credible evidence.
The learned counsel for the Appellants is therefore right, when he said that the claim for N2, 000,000.00 as pleaded in paragraph 13(2) of the Respondent’s statement of claim are in the nature of special and not general damages.
For such class of damages to be awarded, there must be pleadings and credible evidence, which clearly give specific particulars that are capable of being ascertained and quantified by the court.
The pleadings and evidence in the claim for special damages must be such that they are of such character and quality for assessment and quantification. In the case of NBBB CO. LTD. v. A.C.B. LTD. (supra), the Supreme Court had stated the requirement as follows:-
“It is trite law that where the claimant specifically alleges that he suffered special damages, he must per force, prove it. The method of such proof is to lay before the court concrete evidence demonstrating in no uncertain terms easily cognisable, the loss or damage he has suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified.”
I have before now set both the pleadings and the evidence of the Respondent in respect of the claim for the damages awarded by the High Court and have stated they did not meet the requirement of the law that they should specifically pleaded and strictly proved.
As may be recalled, the only reason given by the High Court was that the Appellants were deemed to have admitted the claim since they did not appear or file a statement of defence. However on whether a claim for special damages will succeed based on admission, the Supreme Court in the very recent case of NNPC v. CLIFCO NIG. LTD. (2011) 4 MJSC 142 at 174 had held that:-
“A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357.”
Put simply, the statement of the law above by apex court is that because special damages are exceptional and specific, they will not succeed and be granted as a matter of course, merely on admission, express or otherwise, even where pleaded as required by the law.
I have also noted that the High Court had stated in its judgment that:-
“On the whole, I hold that the plaintiff’s evidence is credible and his case succeeds in part.” see page 32 of the record of appeal.
However, the High Court did not throughout the judgment show or demonstrates its assessment or evaluation of the credibility of the evidence given by the Respondent on the claim for damages before the conclusion and holding that the evidence was credible.
Without the record showing how the High Court assessed or evaluated the credibility of the evidence given by the Respondent in respect of the claim for damages, the basis for the finding that the evidence was credible, is absent and the finding has no legal and judicial justification. Credible evidence is reasonable, probable and cogent evidence in respect of the transaction or event it describes, given from a credible course which makes it easy to believe. AGBI v. OGBE (2005) 8 NWLR (926) 40 at 134. Did the Respondent give such evidence on the claim for damages before the High court so as to attract credibility? For instance, as righty pointed out by the learned counsel for the Appellants, the Respondent had pleaded in paragraph 12 of the statement of claim as follows:-
“12. In the course his employment the plaintiff was hospitalized five times in view of the physically tasking job bulldozer operator, while his medical bills were unpaid.”
In the evidence given by the Respondent at the trial, which been set put earlier, this is what he said:-
“I fell sick while working there, and was hospitalized. I was hospitalized for 10 times. The 1st defendant did not pay me medical bills while I was sick as they were supposed to.”
So in respect of unpaid bills which were part of the lump sum claimed as damages in pleadings, in pleadings the Respondent said he was hospitalized five (5) times in the course of his employment, but in his evidence, which the High court simply tagged as “credible”, the Respondent said he was hospital ten (10) times (twice more than the number in the pleadings) while working with the 1st Respondent. It should be noted that there would be different medical bills for each of the time’s the Respondent was hospitalized, containing different sums for charges, depending on the services and medications provided by the hospital to the Respondent. None of such vital information was given in both pleadings and evidence by the Respondent, but yet, the evidence was said to be credible by the High Court to prove the claim for damages.
The evidence of the Respondent on the other heads of the damages, he claimed, i.e. unpaid claims and other entitlements, was only a passing mention that he was supposed to have been paid “benefits before being sacked” and that.” I was entitled to be paid N2, 000,000.00. (Two Million Naira).”
Where is the reason or probability or cogency in the above evidence that would qualify it as being credible to prove the claims for the specific items in the different heads of damages that were casually lumped up to be two million naira (N2, 000,000.00) by the Respondent? Plainly, there was/is none.
Even if not challenged, the above evidence lacks the legal quality and probative value or worth to prove the claims for damages made by the Respondent. After all, the general rule that a court is entitled to act on unchallenged evidence is subject to the exception that such evidence must be credible and sufficient to prove the claim made before court can base its decision on it. See ADELAKUN V. ORUKU (2006) ALL FWLR (308) 1360 at 1373; NSIRIM v ONUMA (1994) 1 NWLR (318) 1; IYERE v. B.F. & M. LTD. (2008) 18 NWLR (1119) 300 at 341 -2(08)12 MJSC 102.No reasonable court or tribunal would base its decision on the evidence given by the Respondent in proof of the claims for damages, which is partly at variance with and in contradiction of the pleadings, merely because it was not challenged. The High Court did not show any justification whatsoever to warrant the grant of the claim for damages and the award of Two Million Naira (N2, 000,000.00) damages to the Respondent.
For the aforementioned reasons, my decision on the lone issue is that from the totality of the evidence before the High Court, the Respondent did not prove and so was entitled to the claim for the Two Million Naira (N2, 000,000.00) he made against the appellants. Consequently, the award of the sum made by the High Court in favour of the Respondent, in the judgment appealed against was in error of law and is hereby set aside.
The claim for damages by the Respondent against the Appellants fails and is dismissed.
In the final result, I find merit in the appeal and allow it in the terms set out above. Parties to bear the costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the Privilege of reading in draft form, the judgment just delivered by my learned Brother Mohammed Lawal Garba JCA.
I agree with the reasoning and conclusions in the lead judgment. I adopt them as mine and allow the appeal.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read in advance the lead judgment of my learned brother Mohammed Lawal, Garba, JCA just delivered. I am in agreement with the reasoning and the conclusion that there is merit in the appeal and I too allow it in the terms set out in the lead judgment.
I make no order as to costs.
Appearances
J.A. Dada with E. AyiFor Appellant
AND
N.T. OjongFor Respondent
