COMMUNICATION TRENDS LIMITED v. MIKEMORE INVESTMENT LIMITED (2012)

COMMUNICATION TRENDS LIMITED v. MIKEMORE INVESTMENT LIMITED

(2012)LCN/5247(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of March, 2012

CA/C/38/08

RATIO

COURT: THE DUTY COURT BEFORE ENTERING A SUIT UNDER THE UNDEFENDED LIST

The duty of the court under the provisions and in taking the above steps, undoubtedly envisages that the court would before entering a suit under the undefended list, scrutinize the essential facts deposed to in the affidavit of the Plaintiff and in particular, the grounds on which the claim is based and be satisfied prima facie, that there are good grounds for believing that there is no defence to the claim. Let me caution that at this stage, the court is not required to be satisfied that the Plaintiff has proved the claim on the balance of probability as required by the Evidence Act. That standard of proof can only properly arise where the court decides to call on the Plaintiff to adduce oral evidence, in support of the claim he makes either in the event of failure by the Defendant to file a notice of intention to defend as required by the Rules of court or where the court grants leave to the Defendant to defend the action and transfers the case to the general cause list for determination as provided by the Rules. Because it is a procedure whereby proof is by way of affidavit evidence at the stage of the application for the issuance of a writ of summons, the court is required to be satisfied that the depositions in the affidavit of the plaintiff are not frivolous, but prima facie, show a reasonable claim that is maintainable in law. Per. MOHAMMED LAWAL GARBA, J.C.A

PRACTICE AND PROCEDURE: STEPS TO TAKE BY A DEFENDANT WHO IS SERVED WITH THE WRIT OF SUMMONS MARKED AS UNDEFENDED LIST AND WHO WISHES TO DEFEND THE ACTION AGAINST HIM

A Defendant who is served with the writ of summons entered on and marked as undefended list and who wishes to defend the action against him, must take the following steps:
i) enter appearance in the suit
ii) file a notice in writing, not less than five (5) days before the date entered on the writ as the return date for the hearing of the suit, of his intention to defend the action against him, and
iii) the notice shall be accompanied by an affidavit disclosing a defence to the action on the merit.
The above are required for our purpose, by the provisions of Order 23, Rule 3(1) of the High Court Rules which provides thus: ‘If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”. Per. MOHAMMED LAWAL GARBA, J.C.A

THE ATTITUDE OF THE COURTS IN THE INTERPRETATION AND APPLICATION OF THE PROVISIONS OF THE UNDEFENDED LIST PROCEDURE

COURT: EFFECT OF DISREGARD TO THE RULES OF PROCEDURE AND PRACTICE OF COURT

A Defendant who neglects, fails or chooses freely not to obey or comply with provisions of the Rules of court, is not entitled in law and equity to be granted an indulgence by a court as that would amount to rewarding and encouraging deliberate disregard for the Rules of procedure and practice which are made to govern the administration of justice in the court. A party who chooses to disregard or neglect the Rules of court should be prepared and have the courage to bear the resultant legal consequence of such disregard or neglect of the Rules. Per. MOHAMMED LAWAL GARBA, J.C.A

JUSTICES:

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

COMMUNICATION TRENDS LIMITED – Appellant(s)

AND

MIKEMORE INVESTMENT LIMITED – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A.: (Delivering the Leading Judgment): The Respondent, as plaintiff, had by a motion ex parte under the provisions of Order 23, Rule 1 of the Akwa Ibom State High Court Civil Procedure Rules, applied for the issuance and placement of the writ of summons in the suit against the Appellant, under the Undefended List of that court. The motion, which was dated and filed on the 13/3/2007, was accompanied be an affidavit of nine (9) paragraphs to which were annexed documents marked as Exhibits “1 – 6″. It was heard and granted on the 24/4/2007 by the High Court and accordingly, the writ was marked and placed under the undefended list of that court for hearing. The return date for the hearing was the 7/5/07.
From the printed record of the appeal, on the return date, the Appellant who was Defendant to the suit, was represented by one patience Arikpo, but no counsel appeared for it. C. O. Ezeibe, along with other counsel, appeared for the Respondent and he urged the High Court to enter judgment under Order 23 Rule 4 of the Rules of court. Thereafter, this is what the High Court said and recorded in the record of appeal, page 15:-
‘This suit was entered for hearing on the undefended list on the 24th day of April, 2007. There is an affidavit of service before the court, furthermore, the defendant is in court. There is no notice of intention to defend this suit. I accordingly enter judgment for the Plaintiff in the sum of N464,000.00 with interest at the rate of 10% per annum from judgment until liquidation of the judgment debt.”
Let me at this stage set out the provisions of order 23, Rules 1 and 4 under which the suit was filed, placed and heard by the High court for being the foundation upon which the decision appealed against was based.
They are as follows:-
Order 23, Rule 1
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is support by an affidavit setting forth the grounds upon which the claim is based and stating that the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.”
Under Rule 4 of the said Order, it is provided thus:
“4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
Pursuant to an order of the court, extending time, a notice of appeal dated and filed 23/6/2008 was transmitted to the court on 5/4/2008, against the decision of the High Court. The Appellant’s brief of argument was filed on the 17/3/2010 and deemed on that day while the Respondent’s brief of argument filed on the same day was deemed on the 7/12/2011.
From the six (6) grounds of appeal contained on the Appellant’s notice of appeal, Mr. Zaccheaus E. Nglass, Esq., learned counsel who settled the Appellant’s brief had distilled the following issues for determination in the appeal:-
“1. Whether under Order 23 Rule 1 & 4 of the High Court of Akwa Ibom State (Civil Procedure) Rules, Cap. 55, Law of Alara Ibom State, 2000, once a Defendant fails to defend a suit under the undefended list procedure, the plaintiff is automatically entitled to judgment.
2. Whether by the particular presented by the Respondent against the Appellant in the Court below the court was right to have concluded that the Appellant had no defence to the respondent’s suit.
3. Whether the court had the jurisdiction to entertain the respondent’s suit under the undefended list procedure vis-a-vis the particulars presented by the Respondent in proof of its claim.
4. Whether the court was right when it awarded 10% post judgment interest against the Appellant.”
As can easily be observed, there is no indication of the grounds from which each of the issues was formulated as required by diligent practice and law. See EZEJA v STATE (2006) ALL FWLR (309) 1533. However no issue appears to have been formulated from the ground of appeal No. 6 which is in the following terms (without particulars):-
“The learned trial court erred in Law when he on the return date automatically entered judgment against the Defendant/Appellant under the undefended list procedure notice that there was no notice of intention to defend even though, the Appellant (i.e. the Appellants Representative) was in court but not represented by a counsel and thereby infringed on the Appellants fundamental right of fair hearing.”
The law deems the said ground abandoned by the Appellant. See OBASI v ONWUKA (1987) 7 SCNJ, 84; J. E. ELUKPO & SONS v FEDERAL HOUSING AUTHORITY (1991) 3 NWLR (179) 322. The said ground is struck out accordingly, for being abandoned.
I have also observed that even though the Appellant’s Issue 3.04 appears to have been formulated from ground of appeal 5, no arguments were made on the issue in the Appellant brief. What was argued as ‘ISSUES FOUR” at paragraph 6.00 on page 7 of the Appellant’s brief is in fact the Appellant’s Issue 3.03 set out above. In the absence of arguments or submissions on the said Issue 3.04 the Appellant is also deemed in law to have abandoned same. See AGBO v THE STATE (2006) ALL FWLR (309) 1380; SEKONIVUTC NIG. PLC (2006) ALL FWLR (310) 1620. It hereby struck out.
Another observation about the issues formulated by the Appellant’s counsel is that although the word “jurisdiction” was used in issue 3.03, in fact the arguments proferred on it in the Appellant’s brief are substantially mere repetition of the arguments on issue 3.02. Indeed, the two issues 3.02 and 3.03 are essentially the same and only split into bits and pieces.
On his part, learned counsel for the Respondent has formulated a single issue which he said arises for determination in the appeal as follows:
“Whether the court below was right in entering Judgment for the Plaintiff in the circumstances of the case.”
A calm reading of the grounds of appeal and issues raised by the Appellant, the germane issue that requires determination in the appeal is the sole issue framed by the learned counsel for the Respondent. It is concise and precise on the genuine complaint by the Appellant against the decision of the High Court and so I intend to determine the appeal on the basis of that issue since the substance of the Appellant’s argument in the appeal are primarily on the said issue.
The Appellant’s submissions on the issue are to the effect that the High Court was wrong to have in the first instance, entered the suit under the undefended list because there were no satisfactory grounds for believing that the Appellant had no defence to the action. Also that the Exhibits attached to the writ of summons did not show that the Appellant had actually acknowledged receipt of the goods purportedly supplied to it by the Respondent. The cases of DAIKO v UBN PLC (2003) FWLR (180) 1500 and TRADE BANK PLC (2009) 12 NWLR (1155) 369 at 374 – 5 were cited on what a court was expected to do in an application for the issuance of a writ of summons under the undefended list procedure.
In the second instance, the Appellant had argued that based on the materials before it, on the return date for the hearing of the suit under the undefended list, the High court should have on its own granted the Respondent leave to defend the action even in the absence of a notice of intention to defend from it. Relying on the provisions of Order 23, Rule 4, learned counsel for the Appellant had contended that in the circumstances, it was immaterial whether or not a Defendant or the Appellant had filed a notice of intention to defend together with an affidavit as the Rules of court must be obeyed. He cited MV ARABELLA v NAIC (2008) 162 LRCN 197 at 201. It was submitted that where this court finds that a trial court has failed to discharge a duty imposed by law resulting in miscarriage of justice, it shall interfere by setting aside the decision of that court. We were urged to so find in the appeal and the case of OGUNTAYO v. ADELAJA (2009) 15 NWLR (1163) 150 at 160 on the definition of miscarriage of justice was referred to. In conclusion, the court was urged to allow the appeal, set aside the decision of the High Court and remit the case to another judge thereof for hearing and determination on the general cause list.
For the Respondent, the submissions on the issue are that under the provisions of order 23 Rule 4, the duty of the High court on the date fixed for hearing, was to see if there was a notice of intention to defend the action by the Appellant accompanied by an affidavit disclosing a defence on the merit and then decide whether to grant leave or not, when the Appellant did not file the notice of intention to defend the action as required by the Rule, the High Court acted as provided by the provisions to hear the suit as undefended and thereby entered judgment for the Respondent. It was submitted that High Court had no other option than to hear the suit as an undefended suit when the Appellant did not file a notice of intention to defend the action, citing as authority, the cases of AGUEZE v PAN AFRICAN BANK LTD. (1992) 4 NWLR (233) 76 at 86; N. I. V. LTD. V. AFRO-SHELTERS LTD. (2010) 7 NWLR (1175) 209 at 239; BEN THOMAS HOTELS LTD. V SEBI FURNITURE CO. LTD. (1990) 1 BMLR, 104.
Similarly, the cases of NWAKAMA v IKO LOCAL GOVERNMENT, CROSS RIVER STATE (1996) 3 NWLR (439) 732 at 739 and N.C/CE (NPI ) v MABOL ASSOCIATES LTD. (2010) 2 NWLR (1179) 612 at 617 were referred to on the application of the provisions of Order 23, Rule 1.
It was then submitted that it would amount to asking the High Court to conduct the Appellant’s case if it were to on its own, grant leave to defend when the Appellant did not file a notice of an intention to do so as required by the Rules of court. That the court had no power to do that as was held in the case of UAC (NIC) PLC v SOBODU (2007) 6 NWLR (1030) 368 at 370.
Lastly, the case of GLOBAL BANK LTD. V STANDARD ALLIANCE INSURANCE (2010) 3 NWLR (1210) 1 at 14 on the nature of the trial under the undefended list procedure was cited and we were urged to resolve the issue in favour of the Respondent-
Let me begin a consideration of the appeal by saying that the courts, particularly this court and the apex court of the land; the Supreme Court, have consistently restated the peculiar nature and object of what has been named as the “Undefended List” procedure in all the State High Courts Civil Procedure Rules in the country. In brief, the procedure has been described as a special one, peculiar in its subject and application which is meant to provide a quick channel for recovery of debts or claims for liquidated money demand but which provides and ensures an opportunity for fair hearing and doing substantial justice between the parties. It is designed to achieve quick disposal of cases which by their nature are straight forward and virtually, reasonably uncontestable, without necessarily proceeding with the hearing of oral evidence with its attendant delays occasioned by technicalities and expenses. See NDUKWE v. DOMSEY INT. SALES CORP (1991) 7 NWLR (2006) 680; IMONIVAME HOLDINGS v SONER LTD. (2002) 4 NWLR (758) 618; ATAGUBA & CO. v GURA NIG. LTD. (2005) 2 SC (Pt. 1) 101 at 109 – 10; EKULO FARMS LTD. V UBN, PLC (2006) ALL FWLR (319) 895.
The very simple and clear provisions for the procedure which are almost uniform in all the States of the Federation are often deliberately misinterpreted by learned counsel and misapplied by trial courts such that the very object for which they were meant to achieve or serve, would in the long run, be frustrated and eventually defeated.
The provisions which I have set out earlier in this judgment are so unambiguous in the requirements of the procedure to be followed by the parties as well as the court in such cases. Under the provisions of Order 23 Rule 1, there are steps or conditions to take or fulfilled by the plaintiff as follows:-
a) make an application to the court, (usually ex parte) for the issuance of a writ of summons,
b) that the writ of summons must be in respect of a claim to recover a debt or liquidated money demand,
c) the application must be supported by an affidavit setting out clearly the grounds upon which the claim is based, and
d) the affidavit must solemnly state that in the deponent’s belief, there is no defence to the claim made in writ of summons.
After meeting the above requirements and duly filing the application, the court before which the application was filed is then required under the provisions to;
i) took at and consider the application along with the affidavit and all its attachments,
ii) satisfy itself of the nature of the claim
iii) satisfy itself that there are good grounds for believing that there is no defence to the claim,
iv) then enter the suit for hearing under the undefended list, then
v) mark the writ of summons with the words “Undefended List”, and
vi) enter a date on the marked writ of summons, suitable for hearing of the suit for service on the named Defendant’s.

A Defendant who is served with the writ of summons entered on and marked as undefended list and who wishes to defend the action against him, must take the following steps:
i) enter appearance in the suit
ii) file a notice in writing, not less than five (5) days before the date entered on the writ as the return date for the hearing of the suit, of his intention to defend the action against him, and
iii) the notice shall be accompanied by an affidavit disclosing a defence to the action on the merit.
The above are required for our purpose, by the provisions of Order 23, Rule 3(1) of the High Court Rules which provides thus:
‘If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”.

The attitude of the courts in the interpretation and application of the provisions of the undefended list procedure as they relate to the requirements of Order 23, Rule 3(1) above, has always been that on the return date for the hearing of the suit placed under the undefended list, where a Defendant neglects to file a notice of intention to defend the action as required under Order 23 Rule 4 above, the only business or duty of the court, is to enter judgment in favour of the plaintiff without calling on him to call evidence in support of the claim. For instance, this court in the case of MALEY v ISAH (2000) 5 NWLR (658), 651 at 667 had held that-
“therefore on the date fixed for hearing of an undefended suit, the only business of the day is to proceed to give judgment if there is no defence.”
Similarly, in the case of GIDADO v DAKU (2006) ALL FWLR (292) 25 at 40, this court had held that where or if a Defendant fails to avail himself of the provisions which provide him the opportunity to defend the action by the return date, the trial court is obliged under the provisions of the Rules, to hear the case as undefended and enter judgment with or without calling oral evidence as it may deem fit, whether the Defendant was present in court or not. See also the cases of ATAKULU v FANIBE (2001) 9 NWLR (717) 179 at 186 – 7; OKUNRINBOYE v CO-OPERATIVE (2009) 2 – 3 MJSC, 42.
In the present appeal, it is not disputed that the Appellant was duly served with the writ of summons entered and marked on the undefended list along with a date fixed for the hearing of the suit. Learned counsel for the Appellant did not in his arguments deny but subtly conceded that upto the date fixed for the hearing of the suit or the return date endorsed on the writ served on the Defendant, no notice of intention to defend the action had been or was filed by the Defendant, who was even represented by an officer on that day. Furthermore, even the officer who represented the Defendant in court on the return date, did indicate or inform the court that the Defendant in fact intended to file such a notice of intention to defend the action against it. In other words’ the High Court had nothing, whatsoever before it, on the return date to give the reasonable impression that the Defendant was indeed interested in or truly intended to filed a notice of intention to defend the action. In the above circumstances, I am in agreement with the learned counsel for the Respondent that it would have amounted to taking side with the Defendant if the High Court on its own motion, had gone ahead to graciously grant an indulgence or relief not sought by Defendant or even seriously desired by the Defendant. The stage at which a trial court was required by the law to look at and consider the affidavit of the Plaintiff to make sure that the claim on the writ was maintainable in law, as stated earlier, was before the decision to place the suit under the undefended list and marking it accordingly for service on the Defendant. A Defendant who neglects, fails or chooses freely not to obey or comply with provisions of the Rules of court, is not entitled in law and equity to be granted an indulgence by a court as that would amount to rewarding and encouraging deliberate disregard for the Rules of procedure and practice which are made to govern the administration of justice in the court. A party who chooses to disregard or neglect the Rules of court should be prepared and have the courage to bear the resultant legal consequence of such disregard or neglect of the Rules.
The provisions of Order 23 Rule 4 above are unequivocal and the courts have without mincing words, held that a High Court was not only empowered, but was under a duty to enter judgment in favour a Plaintiff in the event that a Defendant did not file a notice of intention to defend the action by the date fixed for the hearing of the suit entered under the undefended list procedure. The High Court was under no obligation and had no legal duty to call for oral evidence in such a situation before entering judgment, but it had the discretion to do so if it thinks fit. The High Court was therefore on firm terrain and was right in law to have entered judgment in favour of the Respondent when on the return date for the hearing of the suit, there was no defence whatsoever or even the notice of intention to defend, the action as mandatorily required by the provisions of its Rules.
In the result, I find no merit in the arguments of counsel for the Appellant on the issue and resolve it against the Appellant.
Before ending the short judgment, I would say that there was no genuine feature in the suit before the High Court which deprived it of jurisdiction to entertain it as set out in the locus classicus authority on the requirements of jurisdiction. MADUKOLU v NKEMDILIM (62) 2 SC 341 cited in the Appellant’s brief.
The Appellant who had failed, neglected or chose freely not utilize or avail itself of the opportunity to show an intention and eventually to defend the action provided by the Rules of court, cannot seek refuge under and wield a sprucious issues of jurisdiction as a weapon to frustrate the application of such Rules which both the parties in a case and the court have a duty to obey and comply with.
Lastly, the admonition by the Supreme Court in the case of ADEWUNMI v PLASTEX LTD. (1986) 3 NWLR (32) 767 is instructive, particularly for the learned counsel for the Appellant. The apex court had stated that-
“Where counsel is confronted with an inescapable unsustainable legal position; the proper course for him to adopt in the discharge of his duty to his client and to uphold the dignity and integrity of his office as an officer of the court, is to submit to judgment in accordance with the law.”
In the final result, the appeal for wanting in merit, is dismissed. Costs assessed at N30,000.00 are awarded in favour of the Respondent to be paid by the Appellant.

JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment of my Lord Mohammed Lawal Garba, JCA and I concur.
The return date for hearing the suit under the Undefended List procedure under Order 23 rules 1 and 4 of the Akwa Ibom High Court Civil Procedure Rules was 07-05-2007. Without the filing of a Notice of Intention to defend the suit supported by an affidavit disclosing a defence on the merit on or before the refurn date the suit shall be heard as undefended and judgment shall be given to the plaintiff without calling upon him to testify or summon witnesses before the Court to formally prove his claim. The provisions are in pari materia with Order 23 rules 1 and 4 of the High Court of Ondo (Civil Procedure) Edict, 1987 which the Supreme Court interpreted in the case of Joel Okunrinboye Export Co. Ltd. & Ors vs Skye Bank Plc (2009) NMLR 629 at 439-440 per Onnoghen, JSC to wit:
“By Rule 1 of Order 23, the Court, when satisfied that there are good grounds for believing the plaintiff that there is no defence to the action, shall enter the suit for hearing on the undefended list and mark the writ of summons accordingly and shall enter on the said writ of summons “a date for hearing suitable to the circumstance of the particular case.” The date for hearing so fixed by the Court and entered on the writ of summons is what we also call the return date. It is the date fixed for the hearing of the particular action under the undefended list except the defendant(s) take(s) certain steps under the rules which steps are to the satisfaction of the Court.
The steps the defendant(s) can take after service on him/them of the writ, to avoid the case being heard on the date fixed for hearing (return date) is as provided for under Order 23 Rule 3(1), that is by filing a notice of intention to defend the action together with an affidavit disclosing a defence on the merit. It is when the Court goes through the affidavit and comes to the conclusion that it discloses a defence on the merit that it would give leave to the defendant to defend the action and remove the suit from the undefended list to the general cause list to be dealt with according to the rules of Court. It is clear from the above that the filing of the notice of intention to defend together with an affidavit disclosing a defence on the merit must be done on or before the date fixed for hearing the undefended suit, otherwise the defendant would be out of time in doing so. In other words, where a defendant fails or neglects to file the notice of intention to defend together with an affidavit disclosing a defence on the merit on or before the date fixed for the hearing of the case, he can only do so upon being granted an extension of time to that effect upon a proper application. This is so because on the date ford for the hearing of such notice and affidavit have been filed, Rule 4 of Order 23 empowers the Court to enter judgment in favour of the plaintiff as the suit would truly be undefended.”
In the absence of a Notice of Intention to defend the suit supported by an affidavit disclosing a defence on the merit, the learned trial judge rightly heard the suit and entered judgment in favour of the Respondent/plaintiff as claimed. A judgment under the undefended list procedure is for the quick dispatch of certain types of cases, namely, debts or liquidated money demand and is a judgment on the merit. See Bank of the North Ltd. vs Intra Bank S.A. (1969) 1 All NLR (Pt.1) 91 at 94 and 97.
Accordingly, this appeal fails. I abide by the orders of my Lord.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment of my learned brother, Muhammed Lawal Garba, JCA just delivered.
It is obvious from the record of appeal that the respondent’s claim was placed for hearing under the undefended list and the processes were served on the appellant, who failed to deliver a Notice of Intention to defend the action together with affidavit showing a defence on the merit as required under Order 23 Rules 3 of Akwa Ibom State High Court (Civil Procedure) Rule, 2000.
The consequence of this failure by the appellant is clearly and unambiguously stated in Order 23 Rule 4 of the Rules as follows:
“4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the court; the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
The law therefore is that where a defendant has failed to deliver to the registrar a notice of intention to defend an action under the undefended list and accompany same with affidavit showing defence on the merit, the only business of the court on the day the case comes up for hearing is to deliver judgment in favour of the plaintiff without hearing the defendant who may even be present or represented in court. See Ben Thomas Hotels Ltd vs. Sebi Furniture Ltd. (1999) 5 NWLR (Pt.123) 523.
It is for this and the fuller reasons in the lead judgment that I agree with my learned brother that this appeal is lacking in merit and it is dismissed by me. I abide by the award of costs in favour of the respondent.

Appearances

For Appellant

AND

For Respondent