BRIGADIER GENERAL LAWAL JA?AFAR ISA (RTD) V. ALHAJI MOHAMMED SANI ABACHA & ORS
(2011)LCN/4509(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of April, 2011
CA/A/129/2011
RATIO
COUNTER-AFFIDAVITS: POSITION OF THE LAW WHERE THE FACTS IN RESPECT OF ANYTHING DEPOSED IN A COUNTER-AFFIDAVIT OR FURTHER COUNTER-AFFIDAVIT, ARE NOT MET OR ADDRESSED BY THE OTHER PARTY IN A FURTHER AND BETTER AFFIDAVIT
…the Counter-Affidavits filed at the lower Court remain unchallenged and uncontroverted because where facts in respect of anything deposed in a Counter-Affidavit or further Counter-Affidavit, are not met or addressed by the other party in a further and better affidavit, the proper conclusion to reach is that the facts stated in the counter-affidavit or further affidavit remain unchallenged. See the following cases:- – Ondo State v. A.G. Ekiti State (2011) 17 NWLR Part 748 page 706 at 749 – 750. – Ex-Parte Adesina (1996) 4 NWLR Part 42 Page 259 at 261 – 262; – F.B.N. Plc Ndarake & Son Nig. Ltd. (2009) 15 NWLR Part 1164 Page 406 at 414 to 415. PER JIMI OLUKAYODE BADA, J.C.A.
RULES OF COURT: WHETHER RULES OF COURT ARE MEANT TO BE COMPLIED WITH
It is my view that Rules of Court are meant to be complied with because they do not exist as a mere decoration but carry the force of law. The Rules of Court regulates matters in Court and it facilitates quick dispensation of Justice. See the case of:- – Bayero v. Mainasara and Sons Ltd (2007) All FWLR Part 359 Page 1285 at 1309 Paragraphs F – H. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
BRIGADIER GENERAL LAWAL JA?AFAR ISA (RTD) Appellant(s)
AND
1. ALHAJI MOHAMMED SANI ABACHA
2. CONGRESS FOR PROGRESSIVE CHANGE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Federal High Court, Abuja in Suit No: FHC/ABJ/CS/114/2011 delivered on 4th day of March, 2011.
The 1st Respondent who was the Plaintiff at the lower Court commenced this Suit by Amended Originating Summons in which he claimed as follows:-
“(1) A DECLARATION that having conducted a direct Governorship Primary Election in Kano State on 12th January, 2011, for the purpose of nominating the 1st Defendant’s Candidate for Kano State Governorship election slated for 16th April 2011, it is mandatory for the 1st Defendant to nominate the winner of the said primary election, as the party’s flag bearer for the purpose of participating and contesting in the Governorship Election in Kano State slated for 16th April, 2011 in accordance with the Electoral Act 2010 and the 1st Defendant’s guideline for nomination of candidates.
(2) A DECLARATION that the Plaintiff having scored the highest number of votes in the 12th January, 2011 Primary Election of the 1st Defendant, he is entitled to fly the 1st Defendant’s Governorship flag for the April 16, 2011 General Election in Kano State in accordance with Section 87 of the Electoral Act.
(3) A DECLARATION that the refusal of the 1st and 4th Defendants to submit the name of the Plaintiff to the 2nd Defendant as the 1st Defendant’s flag bearer for the Gubernatorial Election in Kano State slated for April 16, 2011 after winning the Governorship Primary Election is contrary to the provisions of the Electoral Act, 2010 and the 1st Defendant guidelines for nomination of candidates.
(4) A DECLARATION that it is illegal, unlawful and contrary to both the Electoral Act, 2010 and the 1st
Defendant’s guideline for the 1st Defendant to submit the name of the 3rd Defendant to the 2nd Defendant as the Governorship Candidate of the 1st Defendant for Kano State in the Governorship Election slated for 16th April, 2011 after the Plaintiff emerged as the winner of the Governorship Primaries conducted by the 1st Defendant to pick its Governorship Candidate for the said Election.
(5) AN ORDER of injunction restraining the 2nd Defendant either by itself, officers, agents, privies, staff or through any person or persons howsoever from recognizing, accepting or dealing with the 3rd Defendant as flag bearer of the 1st Defendant in the April 16, 2011 General Election not having emerged in accordance with the Electoral Act, 2010.
(6) AN ORDER directing the Defendants particularly the 2nd Defendant to recognize, accept and deal with the Plaintiff as the flag bearer of the 1st Defendant’s Governorship Election in Kano State for the 16th day of April, 2011 having emerged the winner of the 1st Defendant’s Primary Election held on the 12th day of January, 2011 in accordance with the Electoral Act, 2011.
(7) AN ORDER directing the 1st Defendant to submit the name of the Plaintiff who got the highest number of votes at the 1st Defendant’s Gubernatorial primary election in Kano State to the 2nd Defendant as the validly nominated governorship candidate to represent the 1st Defendant at the April, 2011 General Election.”
At the conclusion of trial, the learned trial Judge granted all the reliefs claimed by the Plaintiff who is the 1st Respondent herein.
The Appellant being dissatisfied with the Judgment, now appealed to this Court.
The learned Counsel for the Appellant relied on the Notice of Appeal containing eleven grounds filed on the 11th day of March, 2011.
He formulated six issues for determination. They are set out as follows:-
“(1) Whether the learned trial Judge’s failure to advert to the defence of the Appellant did not engender a complete failure of Justice so as to render the Judgment of the learned trial Court null and void.
(2) Whether the learned trial Judge has not read into Section 87 of the Electoral Act 2010 what is clearly not there thereby engaging in Judicial Legislation.
(3) Whether in view of the clear and unambiguous provisions of Sections 31 and 87 of the Electoral Act 2010 as amended as well as the evidence on record, the lower Court has the jurisdiction to make an order directing the 2nd Respondent to sponsor the 1st Respondent as its Gubernatorial Candidate for the April 2011 Gubernatorial Elections in Kano State.
(4) Whether having regard to the Provisions of Section 87(3) of the Electoral Act 2010 and the evidence on record, the 1st Respondent’s case before the lower Court has disclosed any reasonable cause of action.
(5) Whether a Defendant in an Originating Summons Proceedings can file a Counter-Claim in the same proceedings.
(6) Whether the learned trial Judge was right in holding that the 1st Respondent won the Primaries conducted by the 2nd Respondent on the 12th day of January, 2011.”
The learned Counsel for the 1st Respondent in his own case formulated two issues for determination. The issues are reproduced as follows:-
“(1) Whether the learned trial Judge was right when he held that the Plaintiff (1st Respondent) had proved his case and is entitled to all the reliefs granted.
(2) Whether a Defendant in a proceeding commenced by Originating Summons can file a Counter-Claim in the same proceedings by way of Counter Originating Summons.”
The learned Counsel for the 3rd Respondent also formulated two issues for determination. The issues are reproduced as follows:-
“(1) Whether the learned trial Judge was right in the conclusion arrived at having regard to the evidence before him, in granting the Plaintiffs Claims.
(2) Whether the learned trial Judge acted within the law in the manner he treated the Counter-Claim and dismissed it.”
At the hearing in this Court, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 22/3/2011 and the reply brief to the 1st Respondent’s brief of argument filed on 6/4/2011.
He adopted the said briefs as his argument in this appeal.
He relied on the case of:-
– Dingyadi vs. INEC S.C. 32/2010 (Unreported)
This is with reference to paragraph 2.7 of the Reply Brief of Argument.
He urged that the appeal be allowed.
The learned Counsel for the 1st Respondent referred to the 1st Respondent’s brief of argument filed on 4/4/2011. He adopted the said brief as his argument in this appeal and he urged that the appeal be dismissed.
The learned Counsel for the 2nd Respondent applied to withdraw the 2nd Respondent’s Brief of Argument filed on 7/4/2011 as well as the motion to entertain the brief.
There was no objection to the application for the withdrawal of the 2nd Respondent’s brief of argument as well as the motion to entertain it from the Appellant’s Counsel and the other Respondent’s Counsel.
The 2nd Respondent’s brief of argument filed on 7/4/2011 as well as the motion to entertain it having been withdrawn are accordingly struck out.
The learned Counsel for the 3rd Respondent referred to the 3rd Respondent’s brief of argument deemed filed 12/4/2011.
She adopted the said brief as her argument in this appeal.
She urged that the appeal be dismissed.
The issues formulated by Counsel for the 1st and 3rd Respondent’s encapsulate the issues formulated by Counsel for the Appellant. In the circumstance I will rely on the issues as formulated by learned Counsel for the 1st Respondent in the determination of this appeal.
ISSUE NO 1
Whether the learned trial Judge was right when he held that the Plaintiff (1st Respondent) had proved his case and is entitled to all the reliefs granted.
The learned Counsel for the Appellant contended that the learned trial Judge failed to consider the Defence of the Appellant.
The Appellant in his Counter-Affidavit to the Originating Summons at the lower Court contended that the direct Primary Elections took place in only 21 out of the 44 Local Government Areas of Kano State. He also stated that Elections did not hold in 9 Local Government Areas as a result of violence attributed to the 1st Respondent.
It was also stated that the 1st Respondent engaged in thuggery, financial inducement of voters and electoral officers, intimidation of voters and electoral officers.
It was further alleged that the learned trial Judge deliberately refused to avert his mind to the important provisions contained under the grounds for disqualification in Exhibit LJ3 attached to the Appellant’s Counter-Affidavit. (See pages 887 -889 of the Record of Appeal.) Learned Counsel for the Appellant also stated that there was the evidence that the 1st Respondent was queried by the party. (See pages 897 -898 of the Record of Appeal). And that the 1st Respondent refused to address the issues raised in Exhibit LJ “6” and as a result he was disqualified.
He submitted that the 1st Respondent did not win the said Primary Election conducted by his Party.
The learned Counsel for the 1st Respondent in his response contended that in accordance with the provisions of Section 87 of the Electoral Act 2010 as amended, the 2nd Respondent conducted a Primary Election on 12/1/2011 for the purpose of selecting its Governorship Candidate for Kano State. And by the result announced by the Chairman of the 2nd Respondent’s Electoral Panel, Professor M. D. Suleiman, the 1st Respondent scored the highest number of votes cast at the Election.
The 1st Respondent’s case was that instead of submitting his name to the 3rd Respondent after emerging as winner of the direct Primary Election, the 2nd Respondent submitted that of the Appellant in accordance with the Provisions of Section 87(9) of the Electoral Act 2010 as amended.
It was submitted on behalf of the 1st Respondent that the complaint of the Appellant against the Judgment is not about whether the Judgment was right or not but about the style adopted by the learned trial Judge in writing the Judgment. It was submitted further that the learned trial Judge had no obligation to write his Judgment in a particular manner.
The following cases were relied upon:-
-Jimoh Garuba v. Isiaka Yahaya (2007) 3 NWLR AT 420 Paragraphs B – F;
– Professor J. A. Akinyanju v. University of Ilorin & Others (2005) 7 NWLR Part 923 Page 87 at 112 Paragraphs A-G;
On the issue of disqualification of the 1st Respondent by the 2nd Respondent, it was submitted on behalf of the 1st Respondent that once a person has been cleared by his political party and he participates in and wins a Primary Election, the only authority capable of disqualifying such a candidate from contesting an election is a Court of law.
He referred to Section 31(5) and (6) of the Electoral Act 2010 as amended. He relied on the case of:-
– Action Congress v. INEC (2007) 12 NWLR Part 1048 Page 222 at 306 paragraphs B – G.
On the whole, it was submitted that the lower Court was right to declare that the 1st Respondent won the Primaries conducted on the 12th January, 2011 and it was urged on the Court to uphold the Judgment of the lower Court.
The learned Counsel for the 3rd Respondent submitted that the provisions of the Electoral Act 2010 as amended have altered so much what was the practice of political parties before now. In the previous years, the decision as to who would fly the flag of a political party or the decision as to who to sponsor for any electoral position, was regarded as internal affairs of the political party and that the Courts lacked jurisdiction to interfere. That was the rational for the various decisions of Courts particularly the decision in:-
-Onuoha v. Okafor (1963) 14 NSCC page 494.
However Section 87(1) – (10) of the Electoral Act 2010 as amended introduced a new idea in the matter of candidates for election sponsored by Political Party.
The learned Counsel for the 3rd Respondent submitted that by virtue of Section 87(4)(ii) of the Electoral Act 2010 as amended, the candidate with the highest number of votes at the end of voting at the Primary Election shall be the candidate whose name shall be forwarded to INEC as the Candidate of the party in the State.
Reference was also made to Section 87(10) of the Electoral Act 2010 and it was also submitted that the law having provided for a method of redress of any perceived wrong doing in the selection of the Candidate, the provision notwithstanding the internal mechanism of the Political Party, any aggrieved aspirant has a duty to follow the law by calling on the Court for interference or reversal of the decision of the delegates at the primaries.
It was finally submitted that the learned trial Judge after the review of evidence applied the law and was not persuaded by the sentiments of the Appellant and his political party.
In this appeal under consideration, the facts as presented by the Plaintiff (i.e. 1st Respondent) and the Appellant in their various affidavits i.e. affidavit in support of the Originating Summons and the Counter-Affidavit could be summarized as follows:-
(1) That the Plaintiff, now 1st Respondent, a member of Congress for Progressive Change (hereinafter called CPC) expressed interest in contesting the April 2011 election to the office of the Governor of Kano State.
(2) That he complied with all the rules, regulations and satisfied all the requirements of the party.
(3) That the Party opted for direct Primaries to select its candidate.
(4) That the Party Primary was conducted on 12/1/2011 in accordance with Electoral Act, the party regulations and guidelines.
(5) That the Plaintiff won the Party Primaries by majority of votes and defeated the Appellant, who was also an aspirant.
(6) That the INEC monitored the election and issued its report which showed that the Plaintiff won the primary election by majority of votes.
(7) That none of the Aspirants challenged his election in Court as provided by the Electoral Act 2010.
(8) That the 2nd Defendant/Respondent (CPC) unlawfully and unilaterally submitted the name of the Appellant who lost the election as the Candidate of the Party for the Election for Kano State. (See Pages 8 – 14 Volume 1 of the Record of Appeal).
The Defendant/Appellant in his Counter-Affidavit stated the facts as follows:-
(1) That the facts contained in the affidavit of the Plaintiff were false.
(2) That the CPC applied direct method of conducting primaries.
(3) That the Plaintiff did not exhaust the dispute resolution mechanism within the party before instituting the action.
(4) That the Plaintiff did not disclose to the Party (CPC) that he was tried and convicted by a Swiss Court for membership of a criminal organization, money laundering and fraud.
(5) That the consequence of failure to disclose the fact of conviction as stated rendered the Plaintiff disqualified.
(6) That the Plaintiff attempted to corrupt a member of the team that conducted Party Primaries in Kano.
(7) That the Primaries were conducted in only 21 Local Council Areas and that about 35 petitions were filed against the result of the Primaries in some Local Government Areas.
(8) That the Plaintiff was queried over the allegations but he deliberately refused to answer or respond to the queries.
(9) That the Board of Trustees of the CPC disqualified the Plaintiff as candidate of the Party for the Gubernatorial Office of Kano State and substituted the name of the Appellant as the Party’s Candidate.
(10) That the CPC has wide powers to choose its own candidate for any office and the name of the Plaintiff was not forwarded to INEC.
(11) That it is in the interest of Justice to dismiss the suit of the Plaintiff. (See page 456 – 462 volume 1 of the Record of Appeal.)
With the above stated facts before the lower Court, the learned trial Judge in his Judgment opined among others as follows:-
“When I reflected on the submissions made on the 1st Defendant’s Counter-Affidavit and the 3rd Defendant’s Counter Originating Summons, one issue that came to my mind is that assuming the Primary was inconclusive as was canvassed by Alhaji Buba Galadima, the 1st Defendant’s National Secretary, although, a result was released, why would the 1st Defendant rather that organize a fresh Primary, prefer the 3rd Defendant who came 2nd in the result of the Primary Election which he alleged was inconclusive?
Again, what criteria did the 1st Defendant use which although, made the Plaintiff to pass its screening and clearance exercise but which made him ineligible to be picked assuming the Primary was inconclusive? What are the other considerations which the 1st Defendant applied in its decision which are not contained in its guidelines with which the said Governorship Primary Election for Kano State was conducted and which made the Plaintiff ineligible or disqualified after he had been screened and cleared to contest the Governorship Primary but which were used, or applied to reject him after he had won the so called inconclusive primary?…”
In this appeal, the attention of this Court has not been drawn to the fact that there was a reply to the counter- affidavits or that there was further affidavit filed at the lower Court by the 1st Respondent.
The effect of this is that the Counter-Affidavits filed at the lower Court remain unchallenged and uncontroverted because where facts in respect of anything deposed in a Counter-Affidavit or further Counter-Affidavit, are not met or addressed by the other party in a further and better affidavit, the proper conclusion to reach is that the facts stated in the counter-affidavit or further affidavit remain unchallenged. See the following cases:-
– Ondo State v. A.G. Ekiti State (2011) 17 NWLR Part 748 page 706 at 749 – 750.
– Ex-Parte Adesina (1996) 4 NWLR Part 42 Page 259 at 261 – 262;
– F.B.N. Plc Ndarake & Son Nig. Ltd. (2009) 15 NWLR Part 1164 Page 406 at 414 to 415.
The 3rd Defendant’s Counter-Affidavit in defence to the Plaintiff’s amended Originating Summons is contained on pages 833 to 838 of the Record of Appeal.
Paragraph (n) of the said Counter-Affidavit is reproduced as follows:-
“That the plaintiff in a bid to corruptly influence the members of the Panel that was sent by the 1st Defendant to conduct the Primaries in Kano State tried to bribe the Chairman of the Panel, Professor M.D. Suleiman, with the sum of =N= 1,000,000.00 (One Million Naira.) Attached hereto as Exhibit L. J. 5 is a copy of the said Chairman’s report submitted to 1st Defendant.
Exhibit L. J.5 is reproduced as follows:-
“Exhibit L. J. 5
CPC KANO GUBERNATORIAL PRIMARY ELECTION REPORT
Introduction: – The election was held on Wednesday the 12th of January, 2011 throughout the State.
(i) There was violence in a number of places in the state. Some people were intimidated and even personally assaulted as a result of rivalry between the supporters of different Gubernatorial aspirants.
(ii) There were allegations (particularly against Alhaji Muhammad Sani Abacha) of the use of money in order to influence voters and officials in several LGS/Wards.
(iii) As a result of violence, the refusal of electoral officials to show up in the places they were sent, factional crisis and so on, it was confirmed, by the Electoral Results Collating Committee (comprising of three members of the Electoral Committee and representatives of all the five Gubernatorial aspirants in the State and in the presence of INEC representatives and security men) that elections could not take place in 9 Local Government Areas of the State.
(iv) It was also established, that Electoral Results were forged in 14 other Local Governments of the State.
(v) Putting (iii) and (iv) above together, the results of twenty-three LGA’s (23 out of 44) were rejected and or election did not take place.
(vi) Only the results of twenty-one out of 44 LGA’s were accepted by the Collation Committee.
(vii) We also received numerous complaints from the aspirants, their agents and other members of the party drawing our attention to a number of irregularities during and after the conduct of the Primary Election. In addition we received thirty-five written petitions which we do not have the time to go through.
The accepted/certified results of the Gubernatorial Primary Election from the twenty-one LGA’s of the State as follows:-
(i) Brig. Gen. Lawal Ja’afaru Isa 78,671
(ii) Hon. Senator Rufai Sanni Hanga 45,618
(iii) Dr. Auwalu Anwar 30,410
(iv) Engr. Magaji Abdulahi 5,795
(v) Alhaji Muhammed Abacha 144,066
Finally, I wish to report that Alhaji Muhammad Sani Abacha, who is one of the aspirants offered me a gratification of One Million Naira (=N=1,000,000.000) through one Sani Usman. This was on Thursday the 13th (yesterday) at about 5.00 p.m. He also promised to send me more gratification after I had declared him winner later in the day. I will tender the money at the National Secretariat of the Party along with this report.
Thank you.
Signed
Prof. M. D. Suleiman
Chairman CPC Primaries Committee.”
The said Exhibit L.J.5 on page 894 to 896 of Volume 2 of the Record of Appeal showed that the Primary Elections took place in only 21 out of the 44 Local Government Areas of Kano State. There was equally evidence that Elections did not hold in 9 Local Government Areas as a result of violence attributed to the 1st Respondent.
With the above scenario, the 2nd Respondent could have organised a fresh Primary Election for its candidates for the sake of credibility.
The question which agitated my mind at this juncture is that with the unchallenged and uncontradicted evidence contained in the Counter-Affidavits before the lower Court, can someone say that the Primary Election conducted on 12/1/2011 was conclusive.
The answer is definitely in the negative, this is because the learned trial Judge did not take into consideration the facts and evidence deemed admitted before he arrived at his conclusion.
Consequent upon the foregoing it is my view that the learned trial Judge was wrong in holding that the 1st Respondent won the Primaries conducted by the 2nd Respondent on the 12th day of January, 2011.
This issue is therefore resolved in favour of the Appellant against the Respondents.
ISSUE NO 2
“Whether a Defendant in a proceeding commenced by Originating Summons can file a Counter-Claim in the same proceedings by way of Counter Originating Summons.”
The learned Counsel for the Appellant relied on Order 10 Rule 3(1) of the Federal High Court Civil Procedure Rules 2009 in his submission that a defendant in any action can file a Counter Originating Summons.
He also referred to Order 56 Rule 8 of the Federal High Court Rules which provides thus:-
“Where a matter arises in respect of which no provision or no adequate provisions are made in the rules made under-
(i) Of this Act or enactment, any other Act, or enactment, the Court shall adopt such procedure as it deems fit to do substantial Justice between the parties concerned.”
The learned Counsel also relied on Section 9 of the Federal High Court Act and the Provisions of the Supreme Court of England Rules (White Book) 1998 Part 20.2(1)(a).
The learned Counsel for the 1st Respondent relied on Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009. He also relied on Order 13 Rule 35(15) of the Federal High Court rules which he said permits a Defendant to an Originating Summons to file a Counter-Affidavit together with all exhibits he intends to rely upon and a written address in support of same.
He finally urged this Court to discountenance the argument of the Appellant on this issue.
The learned Counsel for the 3rd Respondent submitted that the Counter-Claim filed by the Appellant was an abuse of Court process filed to irritate the Plaintiff/1st Respondent.
It was stated on behalf of the 3rd Respondent that the law is that where the proceeding is wanting in bona fide or amounts to abuse of legal procedure or improper use of legal process or where the legal process is being applied to achieve improper purpose, the Court will be correct to regard it as an abuse of Court process.
Reference was made to the following cases:-
– Jokolo v. Governor of Kebbi State (2009) 11 NWLR part 1152 Page 426;
– Scheep v. MVS Araab (2001) FWLR Part 34 at Page 589.
In this case, the 1st respondent took out an Originating Summons against the Appellant, the 2nd and 3rd Respondents at the lower Court claiming reliefs in line with Order 3 Rule 1 of the Federal High Court Civil Procedure Rules, 2009.
Under Order 13 Rule 35 (15) of the said Federal High Court Rules a Defendant to an Originating Summons shall file a Counter-Affidavit together with all the exhibits he intends to rely upon and a written address within 14 days after service of the Originating Summons.
The Appellant by filing Counter Originating Summons has gone into the realm of uncertainty by following a procedure unknown to the law.
It is my view that Rules of Court are meant to be complied with because they do not exist as a mere decoration but carry the force of law. The Rules of Court regulates matters in Court and it facilitates quick dispensation of Justice.
See the case of:-
– Bayero v. Mainasara and Sons Ltd (2007) All FWLR Part 359 Page 1285 at 1309 Paragraphs F – H.
In the circumstance this issue No. 2 is resolved in favour of the Respondents and against the Appellant.
In the final analysis, it is my view that this appeal succeeds in part.
Therefore the Judgment of the lower Court delivered on the 4th day of March 2011 is hereby set aside. In its place, the Plaintiff’s Claim at the lower Court is hereby dismissed.
There shall be no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
REGINA OBIAGELI NWODO, J.C.A.: I have been privileged to read in advance the judgment of my learned brother BADA, JCA just delivered. I agree with the reasoning contained therein and the conclusion arrived there at that there is merit in this appeal. I allow the appeal.
I abide by all the consequential orders.
Appearances
Y. MAHMOUD with him are M. SHUAIB, M. J. AIGBE, M. S. YUSUF, H. GAMBO (MISS), VIVIAN BOSAH and. V. U. OBIFor Appellant
AND
ABDULAHI HARUNA with him are R. O. ATABO, L. M. ARENGA, U. ANYEBE and P. S. CHECHEI
A. B. MAHMUD
MRS. V. O. AWOMOOLO with her are OLUWASANMI AIYEMOWA and EPHRAIM AJIJOLAFor Respondent
