AUDU v. OCHIGBO & ORS
(2022)LCN/16291(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, April 29, 2022
CA/K/598/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
BARR. E.A. AUDU (Carrying On Business In The Name & Style Of E.A. Audu & Co.) APPELANT(S)
And
1. FRANCISE OCHIGBO 2. SORGWE MARTIN DAVID 3. DONATUS NMEREGINI RESPONDENT(S)
RATIO
PARTICULARS OF A BILL OF CHARGES
Section 16(2)(a) of the Legal Practitioners Act requires that the bill of charges shall contain particulars of the principal item which would include:
(a) The bill should be headed to reflect the subject matter if it is in respect of litigation, the Court, the cause and the parties should be stated.
(b) The bill should contain all the charges, fees and professional disbursements for which the legal practitioner is making a claim.
(c) Charges and fees should be particularized e.g drawing up the Writ of Summons and statement of claim or statement of defence, number of attendance in Court and the dates.
See Onegbedan vs. Unity Bank Plc (2014) LPELR–22186 (CA). PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Kaduna State High Court of Justice, Kaduna, presided over by his lordship Hon. Justice D.S. Wyom.
By a writ of summons accompanied by statement of claim, the Appellant as Plaintiff claimed jointly and severally against the Respondents Defendants as follows:-
“(a) The sum of N500,000.00 (Five Hundred Thousand Naira) only been Plaintiff’s professional fees with respect to the suit marked as KDH/KAD/1314/211 which was heard and determined by his lordship Hon. Justices D.H. Khobo on the 17th of October, 2013.
(b) 25% bank interest on the judgment sum of N500,000.00 from the 20th day of December, 2011 to the date of the judgment of this Court.
(c) The sum of N600,000.00 (Six Hundred Thousand Naira) only been Plaintiffs professional fee in respect of appeal Kaduna Division on the 27th of November, 2015.
(d) 25% bank interest on the judgment sum of 600,000.00 from the day of damage 2014 to the date of the judgment of this Court.
(e) 10% interest on the entire judgment sum from the date of the judgment of this Court until the entire judgment sum is liquidated.
(f) The cost of this suit.”
The Respondents (Defendants) filed a joint statement of defence dated 04/01/2017 but filed on 06/01/2017 wherein the 3rd Respondent counter-claimed against the Appellant as follows:-
“(i) The sum of N50,000.00 which the Plaintiff/Defendant collected from him to procure the record of proceeding for appeal which was never done.
(ii) The sum of N30,000.00 which is the outstanding balance from the sum of N563,000.00 in suit No. KDH/KAD/510/2011 which is yet to be paid to the Plaintiff/Defendant.”
Upon being served the Joint Statement of Defence and the counter-claim of the 3rd Respondent, the Appellant filed a reply and a defence to the Joint Statement of Defence and a counter-claim dated 20/01/2017 and filed on 21/01/2017 against the 3rd Respondent as follows:-
“(i) The sum of N178,000.00 (One Hundred and Seventy-eight Thousand Naira) only being the excess amount of money paid by the Plaintiff to the judgment sum due to the 3rd Defendant in suit No. KDH/KAD/510/2011 decided by his Lordship Justice H.T.D Gwadah.
(ii) 10% interest on judgment sum from the date of judgment until the judgment sum is fully paid.”
To prove his case, Appellant testified in person as the sole witness wherein two witness depositions were frontloaded and adopted as his evidence-in-chief while the Respondents in their defence called four witnesses. As noted earlier on the 3rd Respondent filed a counter-claim.
The case of the Appellant as Plaintiff in the Court below was/is for the recovery of his professional fees in respect to suit No. KDH/1314/2011 and appeal marked as CA/K/191/2014 at the Court below.
The defences of the Respondents to the Appellant’s suit are to wit:
“a. That exhibit 11 and 12 which they executed were forged by way of scanning.
b. That they had paid the Appellant’s professional fee with respect to suit No. KDH/KAD/1314/2011 and appeal No. CA/K/191/2014 to him.
c. That the Appellant did not issue any receipt to them when the said professional fee was paid and that receipt No. 138 which is exhibit 7D and contained in Appellant’s receipt booklet tendered in evidence and marked as exhibit 7 was not issued to them by the Appellant.”
The 3rd Respondent in addition to filing a statement of defence to the suit of the Appellant also filed a counter-claim against the Appellant wherein the 3rd Respondent alleged that:
“a. He gave the sum of N50,000 to Appellant to settle a record of appeal in suit No. KDH/KAD/496/2011 which is a suit between Cosmos Okechi vs. Commissioner of Police Kaduna State and the 3rd Respondent as a party which Appellant never did.
b. The sum of N30,000.00 which is the balance of the 3rd Respondent’s money recovered for him by the Appellant as a judgment sum in the suit No. KDH/KAD/510/2011 which is a civil suit between the 3rd Respondent i.e Donathus Nmeregini vs. Cosmos Okechi.”
The Appellant claimed that by paragraph 17 of the joint statement of defence and 3rd Respondent’s counter-claim the total sum of money claimed by the 3rd Respondent in his counter-claim is the sum of N80,000. While, the Appellant also counter-claimed or set off to the counter-claim of the 3rd Respondent for the sum of N178,000 only paid to the 3rd Respondent in excess in respect of the judgment sum in suit No. KDH/KAD/501/2011 being one of the cases he earlier prosecuted and won for the 3rd Respondent.
At the end of trial, the learned trial Judge upheld the objection by the Respondents on the pre-action provision in Section 16 (2)(a) & (b) of the Legal Practitioners Act to dismiss the Appellant’s case. He upheld the counter-claim of the 3rd Respondent and entered judgment in favour of the 3rd Respondent in the sum of N280,000.00. He also dismissed the Appellant’s counter-claim against the 3rd Respondent’s counter-claim on the ground that the procedure of counter-claiming against a counter-claim is not known to law.
In dismissing the case of the Appellant (Plaintiff), the learned trial Judge held at pages 311–312 of the Record of Appeal as follows:-
“It is in evidence that the Plaintiff had at one point or the other demanded for receipts for payments made to the Plaintiff who did inform them that he had run out of same but will provide the receipts when new prints are made. That was the position of the Defendants to buttress the fact that they had paid the Plaintiff for his service. The Plaintiff apart from his evidence, there was nothing placed before this Court by the Plaintiff to controvert the assertion of the Defendants. How the Plaintiff arrived at his claim is in doubt. At any rate, the provision of Section 16(2)(a) & (b) of the Legal Practitioners Act clearly provides what counsel ought to have done before filing this suit, which he has failed to comply with the said mandatory provision. The Plaintiff is not entitled to begin an action to recover his charges unless he has evidence of complying with the provision of Section 16(2)(a) & (b) of the Act. Exhibits 11 & 12 which the Plaintiff relied on as being in line with Section 16(2)(a) & (b) are not bill of charges and cannot be qualified as an agreement or undertaking emanating from the Defendants.”
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing four (4) grounds of Appeal in this Court on 17-10-2018. The relevant briefs of argument for this appeal are as follows:-
1. Appellant’s brief of argument which was filed on 31/12/2018. It is settled by E.A. Audu Esq.
2. Respondent’s brief of argument which was filed on 29/01/2019. It is settled by S.B. Muhammed Esq.
3. Appellant’s Reply brief of argument which was filed on 7/2/2019. It is settled by J.R. Daniels.
Before going into the main appeal, the Respondents raised a preliminary objection to wit:
1. That the Notice of Appeal which was signed by one Joshua R. Daniel, a Legal Practitioner of E.A. Audu & Co. was not assessed nor filed before the lower Court and urged us to strike out the said Notice of Appeal as being incompetent.
2. That the Appellant’s brief of argument filed by one E.A. Audu Esq, the Appellant himself while a stamp and seal bearing the name; Joshua Rimven Daniel was affixed contrary to Rule 3(b) of the Rules of professional conduct for Legal Practitioners 2007.
On ground one of the Respondent’s preliminary objection, the Appellant referred us to the official receipt issued by the Registrar of Appeal of the Court below issued to the Appellant to show that the Appellant paid the sum of N5,000 as fee paid by the Appellant for filing of the notice and grounds of appeal. He added that it is the duty of the registrar of the trial Court to assess appeal processes and to compile and transmit the record of appeal to the registry of this Court upon the payment of appropriate fees. He submitted that the obligation of the Appellant with respect to the filing of the Notice and ground of appeal stopped when the Appellant paid the statutory fee for filing of the appeal and an official receipt for the said payment is issued to the Appellant.
On the contention by the Respondent that the Appellant’s brief was filed by the Appellant himself while affixing the stamp and seal of another legal practitioner, the Appellant submitted that it is obvious that the name of J.R. Daniel Esq, also appears in the said signature column of the Appellant’s brief of argument as a junior counsel in the chamber of the Appellant in this appeal and that he prepared the process.
The first ground of the Respondent’s preliminary objection to this appeal is settled by the Notice and grounds of Appeal which contained the filing fees paid by the Appellant as could be seen in the Additional Record of Appeal of 9/10/2019, deemed filed by this honourable Court on 21/10/2020.
That ground of objection is accordingly overtaken by events. Furthermore, the Appellant’s brief of argument though ticked as prepared by E.A. Audu Esq, the Appellant himself, it actually contains the professional stamps and seal of the Appellant and J.R. Daniels, his junior in the chambers. In this way, it becomes a matter of internal arrangement, which of the two counsels prepared the brief of argument since both the Appellant and J.R, Daniels Esq, are legal practitioners qualified to file a brief of argument.
The two grounds of objection in the Respondents’ Notice of Preliminary Objection are not well founded and accordingly the Respondents’ preliminary objection is overruled.
The Main Appeal
Learned counsel for the Appellant nominated four (4) issues for determination of the appeal. They are:
“a. Whether the suit of the Appellant contravenes the provision of Section 16 (a),(b) of the Legal Practitioner’s Act as held by the learned Judge of the Court below in the light of the fact that there exists agreement between Appellant and Respondent as to the specific amount of professional fee to be paid to the Appellant by the Respondents?
b. In the event that my lords, hold that the suit of the Appellant contravenes Section 16 (a)(b) of the Legal Practitioner’s Act as held by the Court below which is very unlikely, whether the learned Judge of the Court below did not wrongly dismiss the suit of the Appellant upon the preliminary objection of the Respondent’s counsel in the circumstances of this case?
c. Whether the refusal, failure or neglect of the learned Judge of the Court below to determine all the issues raised by the Appellant in the Appellant’s pleading, evidence adduced before the Court below has not occasioned a miscarriage of justice to the Appellant thereby leading to a denial of fair hearing to the Appellant pursuant to the provision of Section 36(1) of the 1999 Constitution of Nigeria (as amended)?
d. Whether the learned Judge of the Court below was right to have granted the counter-claim of the 3rd Respondent in the sum of N280,000 when the said sum of money was neither pleaded, or claimed in the 3rd Respondent’s pleadings nor proved by evidence?”
Learned counsel for the Respondents adopted the issues nominated by the Appellant for the determination of the appeal. Both counsels presented arguments on issue Nos. 1 and 2 together as the two issues are interdependent.
On issues 1 and 2, the Appellant reiterated his claims for professional services for N500,000 in respect of suit No. KDH/KAD/1314/2011 and N600,000 for appeal No. CA/K/191/2014 which according to him was not paid by the Respondents. He submitted that Appellant tendered exhibit 11 and exhibit 12 in evidence at the trial of the suit at the Court below and these exhibits go to show at least on the face of it that a specific amount of money was agreed to by the parties as to a definite sum of money to be paid as Appellant’s professional fees in respect of the two different suits referred to above. He submitted that notwithstanding the allegation of the Respondents that exhibit 11 and exhibit 12 are forged by way of scanning, the said exhibits remained prima facie evidence of the existence of an agreement between the Appellant and the Respondents as to how much the professional fees of the Appellant is/was.
Appellant submitted that there is a consensus between Appellant and the Respondents that there was agreement as regards the payment of a specific amount of money to the Appellant as to the professional fee of the Appellant. The only point of difference in the case of the parties on this issue are:
a. The amount of money agreed to be paid to the Appellant as his professional fees.
b. The issue as to whether the said professional fee was actually paid by the Respondents to the Appellant and
c. The issue as to whether the said agreement as to the said professional fees of the Appellant was oral or reduced into writing.
Appellant further submitted that the learned trial Judge failed to consider that it is only when there is no agreement between a Legal Practitioner and his client as to how much is to be paid as professional fee to the bill or charges is required to be issued and served by the Legal Practitioner on the client pursuant to the provision of Section 16(2)(a)(b) of the Code of Conduct for Legal Practitioners before the Legal Practitioner can initiate or commence a lawsuit against the client to recover his professional fee.
After referring to the cases of Oyo vs. Mercantile Bank (Nig) Ltd (1989) 3 NWLR (Pt. 108) 213 at 219 and First Bank of Nig Plc vs. Ndoma Egba (2006) All FWLR (Pt. 307) 1015 at 1035 on the above, Appellant submitted that it is apparent from the facts of the instant case that there is agreement be it written or oral between the Appellant and the Respondents as to a specific amount of fees to be paid to the Appellant in respect of legal services rendered to the Respondents. He submitted that arising from the above, the suit of the Appellant at the Court below did not offend or contravene the provision of Section 16(2) of the Legal Practitioners Act, 2004 as held by the learned Judge in the sense that there was no need for the Appellant to have issued a bill of charges to the Respondents before commencing the suit.
Specifically on issue 2, Appellant submitted that the learned trial Judge of the Court below after misleading himself and thus upholding the preliminary objection of the Respondents that the suit of the Appellant contravene the provision of Section 16(2)(a)(b) of the Legal Practitioners Act 2004 went ahead to also wrongfully dismiss the suit of the Appellant.
He submitted that, it is elementary law that a suit determined by a Court of law on the basis of a preliminary objection particularly with respect to an alleged non-compliance with the provisions of Section 16(2)(a)(b) of the Legal Practitioners Act 2004 is not a judgment obtained on the merit of that suit. Appellant submitted that supposing without conceding that the suit of the Appellant before the Court below contravene the provision of Section 16(2) of the Rules of Professional Conduct for Legal Practitioners of the Legal Practitioners Act as held by the learned Judge of the Court below, the proper order which the Court below ought to have made is either an order of non-suit or an order striking out the suit of the Appellant but certainly not an order of dismissal of the Appellant’s suit.
On this, Appellant referred to the cases of Adesokan vs. Adetunji (1994) 7 SCNJ at 123, Ovenseri vs. Ede (1998) 7 SCNJ at 118, Retea vs. NURTW (1992) 2 SCNT at P.25.
In response to Appellant’s issue Nos 1 and 2, learned counsel for the Respondents submitted that by the provision of Section 16(2)(a) & (b) of the Legal Practitioners Act, the Appellant, a Legal Practitioner is not entitled to commence an action except he has complied with the provisions. He submitted that the Appellant (Plaintiff) did not take any steps to send any bill of charges as decided in the case of Oyekanmi vs. NEPA (2001) All FWLR (Pt. 34) 404 at 427.
He further submitted that Exhibit 11 and 12 cannot qualify as such bill as they were forged by the Appellant.
Specifically, on the 2nd issue, Respondents’ counsel submitted that the case of the Appellant was considered on the merit as evidence was led. That the Appellant having led evidence in proof of his case cannot be heard to say that his case was dismissed on preliminary objection.
He urged us to invoke the provision of Section 15 of the Court of Appeal Act to re-hear the matter by considering the evidence already led at the lower Court to arrive at the same decision of dismissal.
In relation to issue No.1, the Appellant tried to fault the judgment of the Court below by relying on the cases of Oyo vs. Mercantile Bank (Nig) Ltd (supra) and First Bank of Nig. Plc vs. Ndoma Egba (supra) for the proposition that a legal practitioner intending to commence an action for recovery of professional fees would not require bill of charges when there is “terms of any agreement reached for this fees but if he has not received his fees and no agreement is reached, as to what they would be, he must submit a bill of charges”.
In the instant case, the Appellant produced Exhibit 11 and 12 separate photocopies of undertakings by the Respondents as evidence of agreed fees between the parties. He (Appellant) claimed the originals of these papers could not be found. The Respondents pleaded and gave evidence that there was never a written undertaken, that there was oral agreement not to the tune of N1,100,000 as claimed by the Appellant but for a total of N605,000.00 which they have fully paid to the Appellant.
That the signatures on Exhibit 11 and 12 were their purported signatures scanned on the said Exhibits from their documents in possession of the Appellant.
The Appellant himself on page 11 of his brief of argument brought out salient differences between the cases of the Appellant and the Respondents from the pleadings and evidence adduced.
a. The amount of money agreed to be paid to the Appellant as his professional fees.
b. The issue as to whether the said professional fee was actually paid by the Respondents to the Appellant or not.
c. The issue as to whether the said agreement as to the said professional fees of the Appellant was oral or reduced into writing and a fourth inevitably,
d. The issue of the forgery of Exhibit 11 and 12.
Appellant believed that inspite of the allegation of forgery of Exhibit 11 and 12 by the Respondents the said Exhibits remain prima facie evidence of an agreement between the parties on his professional fees. That can not be so. The truth is that with proof or lack of proof of forgery of Exhibits 11 and 12, the learned trial Judge in the consideration of the Appellant’s case was entitled to weigh those Exhibits in terms of probative value to determine whether or not they are evidence of agreed fees between the parties. It was in this process of assessment, evaluation and determination of probative value that the learned trial Judge held at pages 310–311 of the Record of Appeal thus:
“The Plaintiff had relied on exhibit 11 & 12 to demand for his professional fees from the Defendants. These exhibits even though admitted by Court are photocopies of a purported agreement or undertaking made by the Defendants in respect of professional due to the Plaintiff. What is worrisome here is that if they were truly made by the Defendants for the benefits of the Plaintiff, the Plaintiff will be in possession of the original documents and will not be misplaced because of the importance of the contents of same. I have taken the pains to peruse all the exhibits before this Court in respect of the Plaintiff’s case and I unable to lay hands on any, where it can be said that Plaintiff has complied with Section 16 of the Act. Legal Practitioners are well advised that where they have to present their bills of charges, it is their interest to draw up the same with due care in order that they may be explicit. Section 16(2)(a) of the Legal Practitioners Act requires that the bill of charges shall contain particulars of the principal item which would include:
(a) The bill should be headed to reflect the subject matter if it is in respect of litigation, the Court, the cause and the parties should be stated.
(b) The bill should contain all the charges, fees and professional disbursements for which the legal practitioner is making a claim.
(c) Charges and fees should be particularized e.g drawing up the Writ of Summons and statement of claim or statement of defence, number of attendance in Court and the dates.
See Onegbedan vs. Unity Bank Plc (2014) LPELR–22186 (CA).
Having found in the circumstances of the case as above that Exhibits 11 and 12 do not create an agreement between the parties on the Appellant’s professional fees, the learned trial Judge was right to have upheld the Respondents’ preliminary objection that the Appellant (Plaintiff), is not entitled to begin an action to recover his charges unless he has evidence of complying with the provision of Section 16(2)(a) & (b) of the Legal Practitioners Act.
On issue No.2, contrary to the submissions of the learned counsel for the Respondents, even where evidence was called as in the instant case, as long as the basis of the trial Court’s decision was in upholding of the pre-action requirement under Section 16(2)(a) & (b) of the Legal Practitioners Act, the proper order is an order striking out and not dismissal of the Appellant’s Plaintiff’s suit. See Adesokan vs. Adetunji (1994) 7 SCNJ 123, Ovenseri vs. Ede (1998) 7 SCNJ 118.
In consequence, issue No.1 is resolved against the Appellant while issue No.2 is resolved in favour of the Appellant.
On issue 3, the Appellant submitted that the failure or neglect of the Court below to determine all the issues raised by the Appellant in his pleading and evidence adduced in the Court below and the written address filed before the Court below before going ahead to dismiss the suit of the Appellant has occasioned a miscarriage of justice to the Appellant which decision has also led to a breach of the Constitutional right of the Appellant to fair hearing pursuant to the provision of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He referred to the cases of Onifade vs. Olayiwola (1990) 7 NWLR (Pt. 161) P.130, Ukpabi vs. Okoro (1983) 3 SCNLR at P.380.
He urged us to invoke the provision of Section 15 of the Court of Appeal Act to resolve the issues and that a look at the pleadings and evidence of the parties would reveal amongst other things that the Appellant tendered exhibit 11 and 12 in evidence to show that Respondents are indebted to him and that the agreement as to the professional fees of the Appellant was reduced into writing. That the Respondents alleged that exhibit 11 and 12 were forged by scanning but that this allegation was not proved by evidence.
He concluded on issue 3 that if the Court had determined the case of the Appellant on the merit, it would have entered judgment for the Appellant since the Respondents did not discharge the legal burden on them to prove that they had liquidated their indebtedness to the Appellant.
On issue 3, learned counsel for the Respondent submitted that the learned trial Judge took evidence and heard the case of the Appellant on the merit. The purported objection was rather taken as the defence of the Respondent. That the learned trial Judge would have nevertheless dismissed the Appellant’s case, if the evidence led at the trial was considered without reference to Section 16(2)(a) and (b) of Legal Practitioners Act. He referred to the case of INEC vs. Musa (2003) MJSC 1 at 66 and submitted that the two parties to the case were given opportunity to state their case. That there was no where or situation throughout the trial that the Appellant was not given fair hearing.
On issue 3, the Appellant cannot be heard to complain of any breach of fair hearing as he participated without any hindrance in the entire proceedings that led to the judgment against him. Similarly, the Appellant cannot complain of evaluation of evidence; for even though evidence was called at trial, the case of the parties was eventually decided on the basis of the pre-action provision in Section 16(2)(a) & (b) of the Legal Practitioners Act.
In the circumstance, the Appellant can only be content with my decision in relation to issue No.2 that having not determined the suit on merit, the Appellant’s suit ought to be struck out rather than dismissed.
Issue No.3 is resolved against the Appellant.
By issue No.4, the Appellant challenged the jurisdiction of the learned trial Judge to award the sum of N280,000.00 only to the 3rd Respondent as per the counter-claim of the 3rd Respondent against the Appellant.
He submitted that the 3rd Respondent’s statement of defence, counter-claim and amended statement of defence and counter-claim respectively is contained on page 38–46 and on page 173–181 of the printed record. That in paragraphs 17 of the Defendant’s joint statement of defence and counter-claim which is on pages 38–46 of the record, the 3rd Respondent claimed as follows:
17. “Whereof the 3rd defendant/counter-claimant claim the sum of N80,000.00 being money had and received for a consideration that failed and judgment sum recovered for 3rd Respondent counter-claimant.”
And that the same claim was/is so repeated in paragraph 17 of the amended statement of claim on pages 173–181 of the printed record.
He referred to the cases of Kotoye vs. Central Bank of Nigeria (2001) All FWLR (Pt. 49) at 1567 and Habib Nig. Bank Ltd vs. Koya (1992) 7 NWLR (Pt. 251) 43 at 61 to contend that the trial Court is bound by the 3rd Respondent’s relief as counter claimed and that the Court not been a charitable organization cannot grant a relief in the sum of N280,000.00 not claimed by the 3rd Respondent.
On issue 4, learned counsel for the Respondents submitted that the Appellant cannot restrict the learned trial Judge to only paragraph 17 of the amended statement of defence because the figure N280,000 was typographically printed as N80,000. That it is clear that the figure N80,000 ought to be N280,000 as shown by the evidence in Court.
I have carefully looked at the reliefs claimed by the 3rd Respondent as counter-claimant and confirm that the sum claimed is N80,000 and not N280,000.00. The argument of the Respondents in this respect is unfounded, lame and unfortunate.
Suffice to say that the learned trial Judge was in excess of jurisdiction to have awarded the sum of N280,000.00 to the 3rd Respondent counter-claimant as opposed to the amount of N80,000.00 claimed by the 3rd Respondent.
Issue No. 4 is resolved in favour of the Appellant.
The Appellant in the appeal nominated four (4) issues for determination. Issues Nos 2 and 4 were resolved in favour of the Appellant. Issues Nos 1 and 3 were resolved against the Appellant. The appeal is allowed in part. However for the reason of the resolution of issue 1 against the Appellant and issue 2 in favour of the Appellant, the judgment and orders of the Kaduna State High Court per Hon. Justice D.S. Wyom delivered on 16th of October 2018 in suit No. KDH/KAD/970/2016 are hereby set aside. Suit No. KDH/KAD/970/2016 is hereby struck out.
Parties to the appeal are to bear their respective costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, Owoade, JCA. I agree with and adopt as mine the finding and conclusion reached by my brother in the lead judgment after he thoroughly and painstakingly considered the submission by learned counsel to the parties in their briefs. He also considered the notice of preliminary objection by the Respondents and resolved that they lack merit and struck them out. I join my brother in striking out the Respondents’ preliminary objection for lacking in merit.
As for the main appeal, my brother in the lead judgment considered the four issues formulated and argued by the Appellant and adopted by the Respondents and reached the inevitable decision that issues 2 and 4 has merit and are resolved in favour of the Appellant while issues 1 and 3 are resolved in favour of the Respondents. I adopt that finding as mine and in consequence thereof also set aside the decision by the lower Court in Suit No. KDH/KAD/970/2016. I abide by the order as to cost.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
BARR. E. A. AUDU For Appellant(s)
S. B. MOHAMMED, ESQ. For Respondent(s)
