BARRISTER CHRIS OBUN v. OBANLIKU LOCAL GOVERNMENT COUNCIL & ORS
(2017)LCN/10239(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of July, 2017
CA/C/266/2014
RATIO
CAUSE OF ACTION: MEANING OF CAUSE OF ACTION
A cause of action means a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of facts which gave rise to a right to sue. It is a cause for action in the Courts to determine disputed matters. See EGBE VS ADEFARASIN (1985) 1 NWLR (PT 3) 549, THOMAS vs OLUFOSOYE (1986) 1 NWLR (PT 18) 689 and DANTATA VS MOHAMMED (2000) 7 NWLR (PT 664) 176. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CAUSE OF ACTION: WHAT THE COURT WILL CONSIDER IN DETERMINING THE DATE OF THE ACCRUAL OF THE CAUSE OF ACTION
To determine the date of the accrual of the cause of action, the Court only needs to look at the plaintiff’s claim. This is so because it is the claim of the plaintiff that determines the jurisdiction of the Court entertaining the suit. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31, TUKUR VS GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549, OKOROMA vs UBA (1999) 1 NWLR (PT 587) 359 and MIN. FOR WORKS vs TOMAS NIG. LTD (supra) at772 and 789. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CAUSE OF ACTION: THE POSITION OF THE LAW AS REGARDS ACCRUAL OF CAUSE OF ACTION IN BREACH OF CONTRACTS
The law as regards accrual of cause of action in breach of contracts has been unequivocally well stated by the Apex Court. Time begins to run from the date the alleged breach of contract occurred. In other words, time begins to run from the date decipherable from the statement of claim that the contract between the parties was breached. See BERGER NIG. PLC VS OMOGUI (2006) 6 NSCQR 1062 SANDA VS KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379 AND A.G. BAYELSA STATE VS A.G, RIVER STATE (2006) 18 NWLR (PT 1012) 596. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
INTERPRETATION OF STATUTE: WHETHER THE SECTION 2(A) PUBLIC OFFICERS PROTECTION LAW AND SECTION 60 OF THE LOCAL GOVERNMENT LAW APPLY TO CASES OF CONTRACT
The remaining question to be answered is whether at the time this action was filed it was caught by the statute of limitation.
Two statutes are in issue here; they are Section 2 (a), Public Officers Protection Law and Section 60, the Cross River State Local Government Law. The Provisions are as follows:
Section 2(a) Public Officers Protection Law:
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following Provisions shall have effect-
(a) The action, prosecution or Proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, on in case of a continuance of damage, or injury, within three months next after the ceasing thereof
Section 60 of the Local Government Law:
When any suit is commenced against any Local Government for any act done in pursuance of execution or intend execution of any Law or of any public duty or authority in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within one year next after the act, neglect or default complained of , or in the case of a continuance or damage or injury, within six months after the ceasing thereof.
The position of the law here was well articulated by Mr. Arikpo the learned counsel for the Appellant. Provisions of laws such as above have been held in several cases by the Supreme Court to be inapplicable to contracts. The legal position was well expounded by KATSINA-ALU JSC (as he then was) thus:
It is now settled Law that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract. See Nigerian Ports Authority v. Construzioni General FarsuraCogefar Spa & Anor (1974) 1 ALL N.L.R. 463. This Court, at Pages 476 to 477 held as follows:
“We shall now deal with the other point which to our mind, does not seem to be well-settled, namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the Powers granted by the Act. But we are not prepared to give, to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract. The learned chief Justice, in deciding this point, made reference to the case of Salako v. L.E.D.B. & Anor. 20 N.L.R. 169 where de Commormand Section P.J. as he then was, construed the provision of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and there after stated the law as follows:
“I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc. See OSUN STATE GOVERNMENT VS DALAMI NIGERIA LTD (2007) 29 NSCQR 763 at 782-783. See also FEDERAL GOVERNMENT OF NIGERIA & ORS VS ZEBRA ENERGY LTD (2003) 12 NSCQLR 172 at 197-198 and WEMA SECURITIES AND FINANCE PLC VS NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2015) LPELR-24833(SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
BARRISTER CHRIS OBUN Appellant(s)
AND
1. OBANLIKU LOCAL GOVERNMENT COUNCIL
2. OBANLIKU LOCAL GOVERNMENT LEGISLATIVE COUNCIL Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State sitting at Obudu Judicial Division delivered on the 23rd January, 2013 by ABUA J.
The Appellant, a legal practitioner had taken out a writ of summons against the Respondents to recover the balance of his professional fees for services said to have been rendered by him to the Respondents in the impeachment exercise of the former chairman of the 1st Respondent. In specific terms the reliefs sought by the Appellant are as follows:
i. A declaration that claimant acted professionally for the Defendants during and after the impeachment process against the erstwhile chairman of Obanliku Local Government Area Hon. (Dr) Godwin Amanke and therefore entitled to his professional fees.
?ii. An order directing Defendants to pay to the claimant, the sum of N3,920,000.00 (Three Million, Nine Hundred and Twenty Thousand Naira) only, being his outstanding balance of professional fees for the legal services rendered to the Defendants during and after the impeachment process against the
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erstwhile chairman of Obanliku Local Government Area, Hon. (Dr) Godwin Amanke.
iii. The sum of N350,000.00 only being solicitor’s fees paid by claimant to M. B. Agaih & Co. to prosecute this case.
PARTICULARS:
a) N70,000.00 only = advance payment made so far
b) N280,000.00 only= Balance to be paid upon conclusion of the case
Total= N350,000.00 only
iv. The sum of N50,000,000 (Fifty Million Naira) only, being general and aggravated damaged for breach of contract.
v. 10% interest Per annum on the judgment sum to be calculated and assessed from date of judgment till satisfaction of the total judgment sum.
On being served with the processes, the Respondents filed a joint statement of defence denying the claim and joining issues with the Appellant. Before the commencement of hearing however, the Respondents came up with a notice of preliminary objection to strike out the suit on the grounds that it was statute barred. The trial Court took arguments from both sides and in a considered ruling delivered as aforesaid on the 23rd January, 2013, came to the conclusion that the said suit was statute barred and dismissed it.
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Dissatisfied at this turn of events, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal filed on the 11th February, 2013 containing two grounds.
At the hearing of the appeal, Mr. Arikpo, the learned counsel for the Appellant adopted his brief filed on the 6th July, 2015 as well as the reply brief filed on 18th May, 2017 as the arguments of the Appellant in furtherance of his appeal.
For the Respondents, their learned counsel Mr. Ijere adopted their brief filed on the 1st December, 2015 but deemed properly filed and served on the 9th May, 2017 as the arguments of the Respondents in contesting this appeal.
The Appellants distilled two issues for determination as follows:
i. Whether upon a calm consideration of the writ of summons and the totality of the statement of claim filed by the Appellant, the cause of action in Suit No: HD/27/2012 arose in June, 2010.
ii. If issue No. 1 is resolved in the negative, whether SUIT NO: HD/27/2012 filed on the 19th day of September, 2012 was filed outside the period prescribed by law and therefore, statute barred.
?The Respondents on their part equally
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formulated two issues for determination differently as follows:
a. Whether the appellant’s cause of action arose within a reasonable time after the 10th day of June, 2010 and if so whether the writ of summons filed on the 19th day of September, 2012 is void in by virtue of Section 60 of the Cross River State Local Government Law of 2007.
b. Whether the writ of summons commencing this action is void in law having regards to the provisions of Order 8 Rule 2 of the Cross River State High Court Civil Procedure Rules of 2008.
The issues formulated by the Respondents seem some what convoluted considering the grounds of appeal herein and shall be accordingly discountenanced leaving the issues formulated by the Appellant which shall be adopted in determining this appeal.
The two issues are contiguous and shall be taken together.
?Arguing these issues, Mr. Arikpo the learned counsel for the Appellant examined the judicial interpretation of the accrual of causes of action and submitted that on the proper consideration of the averments of the Appellant in his statement of claim, the cause of action herein accrued in February, 2012 and not
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June, 2010 arrived at by the trial Court. He referred to ADEKOYA VS FEDERAL HOUSING AUTHORITY (2008) 8 MJSC 66 AT 73-74 MILITARY GOVERNOR, ONDO STATE & ORS VS KOLAWOLE & ORS (2008) 4-5 SC (PT 11) 158 AT 185 AND UBA VS BTL (2006) 28 NSCQR 381 AT 432.
He submitted further that neither the public officers’ protection Law nor the Cross River State Local Government Law could apply to the Appellant’s cause of action as it was founded on breach of contract. He referred to OSUN STATE GOVERNMENT VS DALAMI LTD (2007) 9 NWLR (PT 1038) 66, NPA VS CONSTRUCTIONI FARSURA COGEFA SPA & ANOR (1974) 1 ALL NLR 463 AND SALAKO VS L.E.D.B. & ANOR 20 NLR.
The response of Mr. Ijere was that from the averments of the Appellant in the statement of claim the cause of action herein accrued shortly after the submission of the bill of charges in June, 2010 and the Defendants failed to pay and that negotiation does not prevent limitation from running. He referred to ADEKOYA VS FEDERAL HOUSING AUTHORITY (SUPRA). MILITARY GOVERNOR, ONDO STATE VS ADEKOYA (SUPRA), CIVIL PROCEDURE IN NIGERIA, 2ND EDITION, 2000 BY FIDELIS NWADIALO AT 26 AND UNITY BANK PLC VS NWADIKE
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(2008) ALL FWLR (PT 444) 1571 AT 1591.
Learned counsel outlined the sequence of events and submitted that Appellant was indolent and cannot be aided by equity. He referred to NETWORK SECURITY LTD VS DAHIRU (2008) ALL FWLR (PT 419) 475 at 499.
Mr. Ijere then raised the totally unrelated issue that the writ of summons initiating the action was not seared thereby rendering the issue incompetent.
In his reply brief, Mr. Arikpo submitted that acknowledgement of a debt constitutes accrual of the right of action to recover such debt and referred to BULLEN and LEAKE and JACOB’S PRECEDENTS OF PLEADINGS, 12th Edition by I.H. JACOB, 638.
On the alleged non-sealing of the writ, the learned counsel for the Appellant submitted that it was a complaint of a lapse of the registrar of Court for which the Appellant cannot be punished but that in this case, the process involved is ex facie regular as it bears all necessary stamps and signatures.
?On lines 28-31 of page 65 and lines 1-9 of page 66 respectively of the record of appeal, the learned trial Judge after considering the various points raised by the two sides concluded as follows:<br< p=””
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Therefore, the effective date to consider in coming to a decision as to when this suit was filed is the 19th of September, 2012 and not the 7th day of March, 2012. And that being the case, this suit on contract, between the claimant and the defendants instituted on the 19th day of September, 2012, was instituted is 19 months as already the one year period stipulated in Section 60 of the Local Government Law, No 22 of 2007 in bringing his suit. The suit as presently constituted is in the circumstance brought outside on contract against a Local Government Council in Cross River State. This has an attendant consequence which is that the suit is thereby rendered incompetent, the writ issued invalid and the entire action devoid of life
A cause of action means a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of
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facts which gave rise to a right to sue. It is a cause for action in the Courts to determine disputed matters. See EGBE VS ADEFARASIN (1985) 1 NWLR (PT 3) 549, THOMAS vs OLUFOSOYE (1986) 1 NWLR (PT 18) 689 and DANTATA VS MOHAMMED (2000) 7 NWLR (PT 664) 176.
To determine the date of the accrual of the cause of action, the Court only needs to look at the plaintiff’s claim. This is so because it is the claim of the plaintiff that determines the jurisdiction of the Court entertaining the suit. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31, TUKUR VS GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549, OKOROMA vs UBA (1999) 1 NWLR (PT 587) 359 and MIN. FOR WORKS vs TOMAS NIG. LTD (supra) at772 and 789.
From the reliefs of the Appellant and his pleadings it is evident that the Appellant founded his case on breach of contract. The law as regards accrual of cause of action in breach of contracts has been unequivocally well stated by the Apex Court. Time begins to run from the date the alleged breach of contract occurred. In other words, time begins to run from the date decipherable from the statement of claim that the contract between the parties was breached. See
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JULIUS BERGER NIG. PLC VS OMOGUI (2006) 6 NSCQR 1062 SANDA VS KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379 AND A.G. BAYELSA STATE VS A.G, RIVER STATE (2006) 18 NWLR (PT 1012) 596.
From the averments in paragraph 5 of his pleadings, the Appellant was contracted as follows:
5. Defendants consequently engaged the claimant to offer legal services towards actualizing the impeachment proceeding. The letter of instruction issued to claimant by Defendants and dated 29th October, 2009 is hereby pleaded and shall be founded upon at the trial of this suit.
In paragraphs 6-15, the Appellant detailed the various steps taken by him to actualize his brief. He then pleaded in paragraphs 16-18 as follows:
16. With the removal from office of Hon. Amanke on the 9th day of March, 2010. Hon.Benedicta Kakwa assumed office as Chairman of Defendants same day as required by the Law establishing Defendants.
17. Claimant states that upon completion of his assignment, he forwarded a bill of charges in the sum of N5,120,000.00 (Five Million, one Hundred and Twenty Thousand Naira) only to the Defendants vide a letter dated 10th June, 2010 for settlement.
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The file copy of the said letter and the accompanying bill of charges are hereby pleaded and shall be relied upon at the hearing of this suit. Defendants are given notice to produce the original copies which are in their custody.
18. The said bill of charges was received by the then Executive Chairman of Defendant, Hon. Benedicta Kakwa on the 19th day of July, 2010. The Chairman pleaded with claimant to be patient due to paucity of funds at the time and promised that payment would be made when funds are available and claimant waited patiently.
It seems to me very clear that the cause of action here accrued to the Appellant at that moment on 19th July, 2010 when the Chairman of the Respondents pleaded for time to pay. He could validly maintain an action for recovery of his fees from that moment but opted to ”wait patiently”.
It was argued that the accrual date here was extended by an acknowledgement of the said debt by the Respondents. COKER JSC in delivering the position of the Supreme Court on this issue stated thus:
The position therefore is that before a writing could be described as acknowledgement to take the case out of the statutes of
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limitation, the writing by the debtor should recognize the existence of the debtor or the rights against himself. Beyond this whether a document does this or not is a question of fact depending upon its contents.
It is the duty of a Court called upon to decide such an issue to study carefully the document on which reliance is placed by the defendant and ascertain as best as it can whether the document by its contents does recognise the existence of a right or debt against the defendant or indeed the existence of a right of recourse against himself. It is not necessary that the document should state the precise figure of the indebtedness. In Ajike v. Cardoso & Anor (1939) 5 WACA 134, it was observed that the Court would then turn to the letter written with a view to determining whether, according to the ordinary and the natural meaning of that letter, it contains either an expressed promise to pay or a clear acknowledgement of the debt and in the latter case, whether the acknowledgement is coupled with words which prevent the implication of an unconditional promise. See THADANI & ANOR. VS NATIONAL BANK OF NIGERIA LTD & ANOR. (1972) LPELR 3147
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(Sc); (1972) 1 S.C (REPRINT) 75.
A detailed perusal of the entire statement of claim indicates that apart from cheques issued for payment, promises made to the Appellant were oral and not documentary. As earlier pointed out, oral promises cannot constitute acknowledgements of the outstanding debt within the purview of the law in order to extend accrual of the cause of action. The said payments were not accompanied with any written acknowledgment of indebtedness as to tie them to the submitted bill of charges in order for the Court to construe them as extending the accrual date of the cause of action while the receipts issued for those payments like all the other pleaded letters emanated from the Appellant and not the Respondents. All the averred efforts of the Appellant did not elicit any written response from the Respondents.
To answer the issue here therefore, it is my considered view that all the constituents of the cause of action here aggregated and accrued to the Appellant on 19th July, 2010 when the bill of charges was received by the then Executive Chairman of the Respondents.
?The remaining question to be answered is whether at the time
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this action was filed it was caught by the statute of limitation.
Two statutes are in issue here; they are Section 2 (a), Public Officers Protection Law and Section 60, the Cross River State Local Government Law. The Provisions are as follows:
Section 2(a) Public Officers Protection Law:
?Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following Provisions shall have effect-
(a) The action, prosecution or Proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, on in case of a continuance of damage, or injury, within three months next after the ceasing thereof
Section 60 of the Local Government Law:
When any suit is commenced against any Local Government for any act done in pursuance of execution or intend execution of any Law or of any public duty or authority in respect of any alleged neglect or default
13
in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within one year next after the act, neglect or default complained of , or in the case of a continuance or damage or injury, within six months after the ceasing thereof.
The position of the law here was well articulated by Mr. Arikpo the learned counsel for the Appellant. Provisions of laws such as above have been held in several cases by the Supreme Court to be inapplicable to contracts. The legal position was well expounded by KATSINA-ALU JSC (as he then was) thus:
It is now settled Law that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract. See Nigerian Ports Authority v. Construzioni General FarsuraCogefar Spa & Anor (1974) 1 ALL N.L.R. 463. This Court, at Pages 476 to 477 held as follows:
“We shall now deal with the other point which to our mind, does not seem to be well-settled, namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of
14
contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the Powers granted by the Act. But we are not prepared to give, to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract. The learned chief Justice, in deciding this point, made reference to the case of Salako v. L.E.D.B. & Anor. 20 N.L.R. 169 where de Commormand Section P.J. as he then was, construed the provision of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and there after stated the law as follows:
“I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc. See OSUN STATE GOVERNMENT VS DALAMI NIGERIA LTD (2007) 29 NSCQR 763 at 782-783. See also FEDERAL GOVERNMENT OF NIGERIA & ORS VS ZEBRA ENERGY LTD (2003) 12 NSCQLR 172 at 197-198 and WEMA SECURITIES AND FINANCE PLC VS NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2015)
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LPELR-24833(SC).
In a seemingly desperate attempt, the learned counsel for the Respondents tried to impeach the validity of the writ herein on the ground that it was not sealed by the registrar of the Court. Apart from the fact that the contention of the Respondent is totally untenable, it is not permissible for a Respondent to canvass such positions without a cross-appeal or Respondent’s notice.
In the entire circumstances therefore, this appeal is meritorious and it is accordingly allowed.
The decision of the trial Court in suit No: HD/27/2012 delivered on the 23rd January, 2013 is hereby set aside.
The said suit No: HD/27/2012 is hereby remitted to the chief Judge of Cross River State for re-assignment to another Judge of the said High court other than Abua, J. for trial de novo on the merits thereof.
Cost of N50,000.00 is awarded in favour of the Appellant against the Respondents.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read in advance the judgment just read by my learned brother, J. O. K. OYEWOLE, JCA. I agree with his reasoning and conclusion which I adopt as mine.
?This appeal is
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The appeal is meritorious and is accordingly allowed. The Ruling of the trial Court in Suit No. HD/27/2012 delivered on the 23rd of January, 2013 is hereby set aside.
The said suit No. HD/27/2012 is hereby remitted to the Chief Judge of Cross River State for the re-assignment to another Judge of the said High Court other than Abua, J, for trial on the merits.
I abide by the order as to costs made by Oyewole, JCA in the lead judgment.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, J. O. K. Oyewole, JCA.
I agree with his reasoning and conclusion that this appeal be allowed. I too do allow this appeal and I order setting aside the decision of the Lower Court in suit No. HD/27/2012 delivered on 23rd January 2013.
I abide by all the consequential orders inclusive of the order as to costs as made in the lead judgment.
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Appearances:
MR. D.B. ARIKPO Esq. with him, MR. H. EDET Esq.For Appellant(s)
MR. C.S. IJERE Esq.For Respondent(s)
Appearances
MR. D.B. ARIKPO Esq. with him, MR. H. EDET Esq.For Appellant
AND
MR. C.S. IJERE Esq.For Respondent