CHUWANG & ORS v. MAZERE & ORS
(2022)LCN/16278(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Wednesday, February 02, 2022
CA/J/15/C/2021
Before Our Lordships:
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
1. BOT CHUWANG 2. PAM DANLADI 3. ISHAYA DAN 4. PWAJOK DEME 5. JANG BOT 6. CHUWANG SONG 7. SAMUEL NYAM 8. PAUL SONG 9. PETER SONG 10. BOT SONG 11. DAFUM DANJUMA AKA MUN APPELANT(S)
And
1. DAVID MAZERE 2. JULIUS MAZERE 3. MOSES MAZERE 4. PAM MAZERE 5. BOT MAZERE RESPONDENT(S)
RATIO:
NO COURT CAN GRANT A CLAIM FOR AN ORDER OF INJUNCTION IF THE POSSESSION IS NOT PROVED TO BE EXCLUSIVE
For instance, no co-tenant of a room or land he shares in common with another can bring an action for trespass, civil or criminal, against his co-tenant. A person can only claim trespass over land he is able to show that he possesses exclusively. That, that is the correct position of the law is not open to doubt and was in fact confirmed by the following dicta of the apex Court, Obaseki, JSC, in lead judgment, in Ogbechie & Ors v. Onochie & Ors (1988) 1 NSCC (Vol. 19) 211 at 223, (1988) LPELR-2277 (SC) p.25-26 while overturning the decision of this Court which had reasoned like the Judges of the High Court of Plateau State. Hear His Lordship:
“Eboh, JCA, in his lead judgment expressed the opinion that to succeed in an action for trespass and injunction in land cases, only mere possession instead of exclusive possession is required. This statement, with the greatest respect to the learned Justice, is not an accurate statement of the law. If possession is not proved to be exclusive, no Court can grant a plaintiff a claim for an order of injunction; neither can the plaintiff complain of a wrongful entry into his parcels of land which is technically referred to as trespass. When therefore it is said that the slightest possession can or is sufficient to support an action for trespass, exclusive possession is implied.” (Emphasis mine) BOLOUKUROMO MOSES UGO, J.C.A.
JOINT OWNERSHIP IS ONE OF THE INCIDENTS OF COMMUNAL OWNERSHIP
And applying that principle to family/communal land and whether a co-owner of such land can institute an action for trespass against another co-owner on the basis only that he was using such portion of family/communal land for farming, the apex Court, Nnaemeka-Agu, J.S.C. in his lead judgment this time, again had this to say in Ojibah v. Ojibah (1991) 2 NSCC 130 at 142; (1991) LPELR-2374 (SC) at p.24:
“For a person who has failed in a claim for title to a communal land can only succeed in a claim for trespass and injunction in the same action over the same land against a member of the community only where he has proved exclusive possession. This is because joint ownership is one of the incidents of communal ownership, unless and until the property has been partitioned or the particular piece of land is conveyed to the plaintiff by the head of the community with the concurrence of the principal members thereof. In such cases, too, proof of user does not necessarily prove exclusive possession for the simple reason that communal ownership entitles every member of the community to use the land, though quite often the head of the family allocates portions of the land to individual members for their use.” (Italics mine). BOLOUKUROMO MOSES UGO, J.C.A.
POSESSION MUST BE PROVED TO BE EXCLUSIVE BEFORE A COURT CAN GRANT A CLAIM FOR AN ORDER OF INJUNCTION
A person can only claim trespass over land he is able to show that he possesses exclusively. That, that is the correct position of the law is not open to doubt and was in fact confirmed by the following dicta of the apex Court, Obaseki, JSC, in lead judgment, in Ogbechie & Ors v. Onochie & Ors (1988) 1 NSCC (Vol. 19) 211 at 223, (1988) LPELR-2277 (SC) p.25-26 while overturning the decision of this Court which had reasoned like the Judges of the High Court of Plateau State. Hear His Lordship:
“Eboh, JCA, in his lead judgment expressed the opinion that to succeed in an action for trespass and injunction in land cases, only mere possession instead of exclusive possession is required. This statement, with the greatest respect to the learned Justice, is not an accurate statement of the law. If possession is not proved to be exclusive, no Court can grant a plaintiff a claim for an order of injunction; neither can the plaintiff complain of a wrongful entry into his parcels of land which is technically referred to as trespass. When therefore it is said that the slightest possession can or is sufficient to support an action for trespass, exclusive possession is implied.” (Emphasis mine). BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Plateau State overturning the ruling of the Chief Magistrates Court of Plateau State upholding the no-case submission of Appellants at the close of Respondents’ evidence in support of their direct criminal complaint. The charges Respondents laid and prosecuted against Appellants in the Magistrates Court were:
1. Criminal Trespass contrary to Section 348 of the Penal Code.
2. Mischief contrary to Section 327 of the Penal Code.
3. Criminal Intimidation, Insult and Annoyance contrary to Sections 397 and 399 of the Penal Code.
4. Unlawful Assembly contrary to Section 102 of the Penal Code.
5. Defamation contrary to Section 392 of the Penal Code.
6. Breach of Peace contrary to Section 114 of the Penal Code.
It is common ground that both parties, Respondents and Appellants, are brothers of the same Lo Kazeng family and both live and occupy, in common, the same area of land the right to cultivate or farm by appellants gave rise to the Direct Criminal Complaint of the complainants/Respondents.
What prompted the filing of the said charges by complainants/Respondents against accused persons/appellants, as presented by Respondents’ three witnesses at the trial Magistrates Court of Plateau State, is that, appellants’ wives, on the 3rd day of May 2014, went into areas of the family’s farmland, which some of Respondents’ wives had already cleared for farming, and cultivated it without Respondents’ permission. All three witnesses of Respondents (P.W.1, 2 and 3) claimed that Appellants’ wives refused to stop the cultivation even when cautioned, in the course of which fight ensued between 12th Appellant and 1st Respondent and the police was called in by Respondents. Respondents claimed that appellants’ wives’ actions were done with the support of and at the instigation of appellants.
As hinted earlier, upon the close of Respondents’ case, Appellants made a no-case submission, which the trial Magistrate upheld and discharged and acquitted them on all five counts. Particularly in respect of the first count of criminal trespass, which count has turned out to be main the issue of Respondents’ in their successful appeal to the High Court and even in this appeal, the Magistrate’s Court held that exclusive possession is a key ingredient of the offence of criminal trespass so Respondents’ failure to establish it meant that they failed to make out a prima facie case of that offence, i.e., criminal trespass, against appellants.
Vexed by it, respondents lodged a six-ground Notice of Appeal against that Ruling to the High Court of Plateau State and later added additional grounds. Noteworthy in their appeal there were Grounds 3, 4 and 5 of their original Notice of Appeal which specifically targeted the decision of the trial Magistrate that they did not also make out their charges of Criminal Mischief, Criminal Intimidation, Unlawful Assembly and Inciting Disturbance.
In its 2nd September 2020 judgment on the appeal, the two-man appellate panel of the High Court of Plateau State first struck out the said Grounds 3, 4 and 5 – their Lordships being of the view that Respondents as appellants failed to distill any issue from those grounds and did not also canvass any argument in respect of them in their brief of argument so they were deemed ‘abandoned.’ (see p. 182 of the records). That finding/decision is not contested by Respondents in this appeal, meaning that it is accepted by them. I shall later revisit the full consequence of that decision on the final wholesale retrial order of that same Court.
On the remaining grounds of Complainant/Respondents’ appeal to it, the appellate High Court Judges first rejected Respondents’ contention of nullity of Appellants’ arraignment and zeroed in on Respondents’, then Appellants’, main argument of the wrongness of the decision of the trial Magistrates Court that exclusive possession is an element of the offence of criminal trespass. On that, the High Court disagreed with the trial Magistrate and rather held as follows:
“It is apparent to us that the lower Court was indeed swayed by the wordings “exclusive possession” in its ruling to reach the decision it did. The trial Magistrate described the wordings as “primary ingredient” of the offence of criminal trespass and reached the conclusion that prosecution has not established “this key ingredient.” This we find to be misdirection of mind on the part of the lower Court which has occasioned miscarriage of justice. The essential ingredients for proof of criminal trespass are as stated under Section 348 of the Penal Code to be:
(a) That the complainant had possession of the property in question;
(b) That the accused entered into or upon the property or that he unlawfully remained therein or thereon.
(c) That he so entered or remained there with the intention:
(i) To commit an offence, or
(ii) To intimidate, insult or annoy the person in possession.
“At nowhere has it been shown that the essential or primary or key ingredient of the offence of criminal trespass is the proof of “exclusive possession” and we so hold. This issue ought and it is accordingly resolved in favour of the appellant.”
With that reasoning, it went on to overturn the decision of the trial Magistrate and ordered a wholesale retrial of accused persons (now appellants) before another magistrate.
The accused persons are also vexed by that decision hence this appeal. They framed the following four issues from their six grounds of appeal for your Lordships to determine:
1. Whether the lower Court was right to have heard the appeal and relied on Section 150(3) of the Criminal Procedure Code to order a retrial when the Respondents’ Notice of Appeal and additional grounds of appeal at that Court contained no such reliefs.
2. Whether the usage of the phrase ‘exclusive possession’ by the trial Court did occasion any miscarriage of justice to the respondents to support the lower Court’s decision to order a retrial when the law does not contemplate concurrent possession of land.
3. Whether the lower Court was right to have struck out the issues for determination formulated by them before it and whether the said issues were not anchored on the grounds of appeal before it.
4. Whether the lower Court was right to order for retrial of the entire case whereas prosecution failed to establish a prima facie case in respect of all the offences against them before the trial Magistrates Court.
Respondents also distilled four issues from the same six grounds of appeal of appellants in the following manner:
1. Having regards to the reliefs contained at page 6 of the record of appeal transmitted to this Court by the appellant, whether the lower Court was not right in not hearing the appeal and making an order for retrial based on Section 15(b)(3) of the Criminal Procedure Code or any statute at all.
2. Whether the lower Court was not correct in holding that the trial Court read into the relevant statute words not so found therein, to wit “exclusive possession”, to shift the parameters of the law, an act that obscured its mind from the relevant evidence establishing possession of the land by the Respondents.
3. Whether the lower Court did not follow and apply the settled position of the law in striking out the issues for determination formulated by the appellants when they deliberately chose to formulate issues not in any way related to the ones formulated by the Respondents from the grounds of appeal.
4. Having regards to the grievance of the Respondents, the evidence on the record and the settled position of the law, whether the lower Court is not correct in setting aside the decision of the lower Court and then making a consequential order for retrial.
The argument of appellants in their issue 1 is that Respondents sought no relief in their Notice of Appeal to the lower Court as to whether they wanted a retrial or dismissal of the decision of the trial Magistrates Court should their appeal succeed so that Court which is not Father Christmas lacked jurisdiction to make the order for their retrial as it did. They cited in support of that argument the election case of Adeleke v. Oyetola (2020) 6 NWLR (PT 1721) 440 540-541 (SC) and argued further that if the lower Court was minded to make the said order of retrial fair hearing demanded that parties be called to address it on it and the omission of that Court to call for addresses before making the said retrial order breached their right of fair hearing and consequentially invalidated the entire proceedings.
I am unable to go along with appellants on this argument. The Courts have always had the power to make necessary consequential orders, including retrial, in deserving cases, even where parties did not specifically ask for such orders. That is even more so in appeals after the Court has determined the merits of the appeal. Just very recently, the Supreme Court (Galumje, JSC) reconfirmed that point in its lead decision in DEC Oil & Gas Ltd v. Shell (Nig.) Gas Ltd (2019) 14 NWLR (PT 1692) 273 at 307-308, saying that:
“Consequential order is prerogative of the Court so parties need not be heard before they are made and no breach of fair hearing is so engendered.”
Quite a number of years earlier, it had voiced the same point in Nigerian Fishing Co. & Ors v. Western Nigeria Finance Corporation (1969) NMLR 164 at 167 with Coker Ag. C.J.N., (with the concurrence of his brother Justices Madarikan and Fatayi-Williams, JJ.SC) saying at p.217 that:
“No party has the right to dictate to the Court what type of order the Court should make on his case.”
It is the same point Akpata, J.S.C. also echoed in Katto v. Central Bank of Nigeria (1991) 12 SCNJ 1 at 17-18 when he said:
“Whether an appeal will be dismissed or allowed or struck out or the case will be remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect, the order to be made is dictated by the outcome of the appeal, that is whether it succeeds or fails. If I may confess, I hardly turn to the notice of appeal to verify the reliefs sought by an appellant before making an order following the success of the appeal. The order I make is that which appears to me to flow from the decision arrived at in the appeal.”
The case of Adeleke v. Oyetola (2020) 6 NWLR (PT 1721) 440 540-541 (SC) cited by appellants in support of their argument, I must point out, is distinguishable, in that Adeleke v. Oyetola was an election petition appeal which is sui generis. This issue is accordingly resolved against appellants.
Issue 2 of appellants is on the gravamen of the lower Court’s decision, namely, that exclusive possession is not an element of the offence of the criminal trespass. Appellants submitted that the lower Court was wrong in its interpretation of Section 342 of the Penal Code. They submitted that trespass whether in its civil or criminal form cannot be settled by any Court if there exists concurrent possession; that two people cannot be in adverse possession of a land, and since Respondents failed to prove exclusive possession of the land in issue, they failed to make out a prima facie case of criminal trespass so the Magistrates Court was correct in its decision to that effect. They cited a number of cases including good old Amakor v. Obiefuna (1974) 3 S.C. 67 and Akunyili v. Ejidike (1996) 5 NWLR (PT 449) 405 S.C on the relevance of exclusive possession to proof of trespass and referred us to the evidence of all three witnesses of Respondents admitting that Respondents were not in exclusive possession of the land, that rather, they, appellants, were also living on the same land, had their houses on it and even burying their dead on it, all of which negative exclusive possession of the same land by respondents and a fortiori criminal trespass by them. Mr. Mwadkon on their behalf urged us to resolve this issue in their favour.
Mr. Bitrus Fwangshak for respondents on his part submitted that the lower Court was right in its interpretation of Section 342 of the Penal Code creating the offence of criminal trespass and it is the trial Magistrate Court that was wrong in ‘importing’, as he put it, the word ‘exclusive’ into what counsel described as the clear, plain and unambiguous provisions of Section 342 of the Penal Code. He submitted that where the provisions of a statute are clear, plain and unambiguous as Section 342 of the Penal Code he said is, the Court’s duty is to give it that meaning and not import into it words or expressions that are not contained there. Counsel also submitted that the evidence before the trial Court did not in any case support appellants’ argument of being in concurrent possession with Respondents on the land; that on the contrary, the evidence of Respondents’ witnesses was that Respondents were in possession and appellants only came to the land with their permission.
Now, Section 342 of the Penal Code of Northern Nigeria reads thus:
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy such persons or with intent to commit an offence is said to commit criminal trespass.
The question is: what is the nature of possession envisaged by this provision to constitute criminal trespass? Is such possession by a complainant supposed to be exclusive to him as the trial magistrate held or is it just any type of possession including concurrent possession, as in the case of two co-owners of land or fee paying tenants in possession of a piece of land or room, as the decision of the High Court of Plateau State seems to suggest? I am not in any doubt that possession as intended by Section 342 of the Penal Code to constitute the offence of criminal trespass is exclusive possession and not just mere possession. Possession, the breach of which constitutes the wrong or offence of trespass, for which the Court can interfere by way of injunction and award of damages or punish criminally as in Section 342 of the Penal Code, necessarily implies and envisages exclusiveness in the person claiming it and unless he is in exclusive possession of land or chattel alleged trespassed on, he cannot claim trespass over it by another so the word ‘exclusive’ is implied even when not so stated in the statute. It therefore makes no difference, contrary to the reasoning of the lower Court, that Section 342 of the Penal Code did not expressly employ the adjective ‘exclusive’ to qualify possession: exclusivity of possession is intended, nevertheless, for without exclusive possession no person can complain of trespass. For instance, no co-tenant of a room or land he shares in common with another can bring an action for trespass, civil or criminal, against his co-tenant. A person can only claim trespass over land he is able to show that he possesses exclusively. That, that is the correct position of the law is not open to doubt and was in fact confirmed by the following dicta of the apex Court, Obaseki, JSC, in lead judgment, in Ogbechie & Ors v. Onochie & Ors (1988) 1 NSCC (Vol. 19) 211 at 223, (1988) LPELR-2277 (SC) p.25-26 while overturning the decision of this Court which had reasoned like the Judges of the High Court of Plateau State. Hear His Lordship:
“Eboh, JCA, in his lead judgment expressed the opinion that to succeed in an action for trespass and injunction in land cases, only mere possession instead of exclusive possession is required. This statement, with the greatest respect to the learned Justice, is not an accurate statement of the law. If possession is not proved to be exclusive, no Court can grant a plaintiff a claim for an order of injunction; neither can the plaintiff complain of a wrongful entry into his parcels of land which is technically referred to as trespass. When therefore it is said that the slightest possession can or is sufficient to support an action for trespass, exclusive possession is implied.” (Emphasis mine)
And applying that principle to family/communal land and whether a co-owner of such land can institute an action for trespass against another co-owner on the basis only that he was using such portion of family/communal land for farming, the apex Court, Nnaemeka-Agu, J.S.C. in his lead judgment this time, again had this to say in Ojibah v. Ojibah (1991) 2 NSCC 130 at 142; (1991) LPELR-2374 (SC) at p.24:
“For a person who has failed in a claim for title to a communal land can only succeed in a claim for trespass and injunction in the same action over the same land against a member of the community only where he has proved exclusive possession. This is because joint ownership is one of the incidents of communal ownership, unless and until the property has been partitioned or the particular piece of land is conveyed to the plaintiff by the head of the community with the concurrence of the principal members thereof. In such cases, too, proof of user does not necessarily prove exclusive possession for the simple reason that communal ownership entitles every member of the community to use the land, though quite often the head of the family allocates portions of the land to individual members for their use.” (Italics mine).
Respondents as appellants in that Court did not appeal against this very adverse finding of the trial Magistrate on their claim of ownership of the land in issue and purported restriction by their father of appellants’ father’s and a fortiori their own rights of use of the same land. They rather chose to hang their appeal to the lower Court on the point only that proof of exclusive possession was not an ingredient of criminal trespass under Section 342 of the Penal Code. Having not challenged that finding in the Court below, they cannot challenge it now in this Court in any guise, not even by way of arguments in their brief of argument. In the result and for all the reasons here stated, I hereby resolve this issue in favour of appellants and hold, in agreement with the trial Magistrate, N.S Dashe Esq., that exclusive possession is implied by Section 324 of the Penal Code of Northern creating the offence of criminal trespass and Respondents’ failure to lead evidence of exclusive possession meant that they did not make out a prima facie case of the offence of criminal trespass against appellants.
That takes me to issue 3 of appellants where they complained about the lower Court’s order striking out the three issues they formulated for determination in their brief of argument as Respondents before that Court. That issue is now largely academic given their success in issue 2 above. Appellants nevertheless submitted on it that, as against the position of the lower Court, their three issues there related to Respondents’ grounds of appeal and so the lower Court was wrong in striking them out.
Respondents replied that appellants actually formulated their three issues in that Court outside their grounds of appeal so the lower Court was right in striking them out, and that in any case, that Court still considered appellants’ arguments in their brief of argument so appellants have suffered no injustice by that striking out order. They referred the Court to pages 187 -189 of the records of appeal where the lower Court specifically considered appellants arguments in their brief even after striking out their three issues.
Now, I must admit that I find it difficult appreciating appellants’ complaint here, especially as the lower Court, on the records, considered their arguments in their brief against the appeal on their merits even after striking out their said three issues. That necessarily means that appellants suffered no injustice from the said decision of that Court striking out their issues. Judgments are only upturned if miscarriage of justice, and substantial miscarriage for that matter, is shown to have been occasioned by the error identified in the appeal: see Eyisi v. The State (2000) LPELR- 1186 (SC) p. 19; Onuoha v. The State (1988) I NSCC 411 at 419; Kalu v. Odili (1992) LPELR-1635 (SC) p.36-38. That is not the case here. At any rate, it was Respondents’ duty, as appellants in the lower Court, to persuade that Court on the wrongness of the decision they appealed against, especially as that decision is by law presumed correct until proved otherwise by appellant. That burden on appellant is not made lighter by the fact that a Respondent filed no brief of argument let alone that issues formulated by him in his brief were struck out either rightly or wrongly by the appellate Court as in this case. For all of the reasons here highlighted, I hold appellants’ complaint academic and also not made out in any case and hereby resolve it against them.
Appellants in their issue 4 largely repeated their earlier arguments of the correctness of the Ruling of the trial Magistrates Court on their no-case submission and the concomitant wrongness of the decision of the Court below overturning that decision, especially as it related to the count of criminal trespass. They also took on (unnecessarily, I will say given Respondents’ abandonment of those grounds before the lower Court as stated earlier) the counts of criminal intimidation, unlawful assembly, criminal defamation and breach of peace one after the other and submitted that Respondents truly did not make out any prima facie case against them on those counts too so the decision of the lower Court setting aside the Court’s ruling and ordering a retrial of the case was wrong.
On their part, Respondents argued that the retrial order of the lower Court was rightly made, especially as that Court had faulted the decision of the trial Court that exclusive possession was an element of criminal trespass. They submitted that the lower Court having upheld that count, it could not be expected to do “surgical operation” to dissect and compartmentalize some aspects of the case to be tried and others to be abandoned; that it is the entire case that is to be retried. They also cited the case of F.R.N. v. Solomon (2018) 7 NWLR (PT 1618) 201 to submit that the import of a retrial order is that the previous trial never existed in the first place as it was null and void.
First, on the wholesale order of retrial order the Court below made on the case, I repeat again that I find it difficult to see how that order can be supported given the same Court’s earlier order striking out Grounds 3, 4 and 6 of the Appellants’ original Grounds of appeal and deeming them abandoned. As pointed out earlier, those grounds of appeal related to the other counts of Mischief, Unlawful Assembly and inciting disturbance and Criminal Defamation Respondents laid in the Magistrate Court against appellants and since they were struck out and deemed abandoned by Respondents before the lower Court, it follows that the trial Magistrate Court’s ruling acquitting appellants on them stood for all purposes and times. So, even assuming that the lower Court was correct in ordering a retrial, it was wrong of it to order a retrial of even the same offences it had found that appellants had by their decision not to pursue on appeal accepted that they did not make out at the trial Court. To order a wholesale retrial of Appellants in that circumstance amounted to an invasion of their fundamental right under Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria not to be retried for an offence they have been tried and acquitted. Section 36(9) of the 1999 Constitution states that “No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.” This issue is therefore also resolved in favour of appellants.
Finally, having held earlier that the trial Magistrates Court was correct in its interpretation of Section 342 of the Penal Code creating the offence of criminal trespass, and the lower Court wrong in its decision to the contrary, which issue is the only live issue pursued by Respondents in their appeal before the lower Court, this appeal is, on the whole, found meritorious and must be and hereby allowed.
In conclusion, the judgment of the High Court of Plateau State Coram Justices I.I. Kunda and N.D. Dadi of the 2nd day of September 2020 overturning the Ruling of N. S. Dashe Esq. of the Magistrate Court of Plateau State and ordering a retrial of appellants is hereby declared erroneous. Consequently, this appeal is allowed and the said decision of the High Court of Plateau State of 02/9/2020 in PLD/J68C/2019 is set aside. In its place, the 4th October 2016 decision of the trial Magistrate Court upholding the no-case submission of appellants and acquitting them of all the charges laid against them by Respondents is hereby restored.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had a preview of the judgment rendered by my learned brother, BOLOUKUROMO MOSES UGO JCA.
The reasoning and conclusion that the appeal on the whole is meritorious are in accord with mine and I accordingly adopt them.
I also allow the appeal and abide by the consequential orders made in the lead judgment.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have the privilege of reading in advance, the lead judgment delivered by Hon. Justice BOLOUKUROMO MOSES UGO, JCA. I am entirely in agreement with his pronouncements on all the issues for determination formulated by both counsel, particularly in the light of fuller reasoning espoused by His Lordship.
In the circumstance, I associate myself with the order of his Lordship setting aside the decision the lower Court, consequently, the decision of the Magistrate Court of the 4th October, 2016 upholding the no case submission of the Appellants is hereby affirmed.
Appearances:
N.D. Mwadkon, Esq. For Appellant(s)
H.P. Nathan, Esq. For Respondent(s)
