DE ALVEN MARINE OIL & GAS LTD v. EARTHWELL PETRO-ALLIED LTD (2020)

DE ALVEN MARINE OIL & GAS LTD v. EARTHWELL PETRO-ALLIED LTD

(2020)LCN/14052CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/C/363/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DE ALVEN MARINE OIL & GAS LTD APPELANT(S)

And

EARTHWELL PETRO-ALLIED LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT A TRIABLE ISSUE UNDER THE UNDEFENDED LIST IS A COMPLETE DEFENCE

In other words, a triable issue under the undefended list is not necessarily a complete defence. In the case of Trade Bank Plc vs. Spring Fin. Ltd. (2009) 12 NWLR (pt. 1155) 369 at 385.
It was held that:
“A triable issue or defence on the merit is such that the Plaintiff will be expected to explain certain matters or where the affidavit matters or where the affidavit throws some doubt on the Plaintiff’s claim. A complete defence need not be shown. It suffices if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.” PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court, Uyo delivered on 10th July, 2017 by Hon. Justice Aniekan Akpan. The said judgment found the Appellant liable to pay the sum of N3,768,600.00 (Three Million, Seven Hundred and Sixty Eight Thousand, six Hundred Naira) only to the Respondent under the undefended list procedure.

The facts are as follows:
Upon a Motion Ex-Parte filed on 17th May, 2017, the Respondent (as Applicant) was granted leave to issue a Writ of Summons against the Appellant and same be placed on the Undefended Cause List for hearing and determination. Sequel to the order, Respondent filed a Writ of Summons on the 31st May, 2017 and accompanied same with an affidavit of 17 paragraphs. The Appellant upon being served filed a Notice of Intention to Defend and Affidavit of Defence.

The reliefs sought by the Respondent at the trial Court, as per the Writ of Summons were as follows:
i. A DECLARATION that the Claimant is entitled to the sum of N3,768,600.00 (Three Million, Seven Hundred and Sixty-Eight Thousand, Six Hundred Naira) only,

being outstanding balance for the supply of petroleum product which Defendant has failed to supply.
ii. AN ORDER directing the Defendant to pay the total sum of N3,768,600.00 (Three Million, Seven Hundred and Sixty Eight Thousand, Six Hundred Naira) only, to the Claimant, being outstanding balance for the supply of petroleum product which Defendant has failed to supply
iii. AN ORDER directing the Defendant to pay to the Claimant post judgment interest at the rate of 21% per annum till final liquidation of the judgment sum.

The trial Court on the 10th July, 2017 gave judgment in favour of the Respondent thus:
i. The Defendant is hereby directed to pay the sum of N3,768, 600.00 (Three Million, Seven Hundred and Six-Eight Thousand, Six Hundred Naira) only, being outstanding balance for the supply of petroleum product which Defendant has failed to supply.
ii. The Defendant is directed to pay the Claimant post judgment interest at the rate of 10% per annum till final liquidation of the judgment sum.

The reasoning and conclusion of the learned trial judge as he considered the affidavit evidence of the parties could be found on pages

42-43 of the Record of Appeal as follows:
“Let me now consider the substantive suit. Here, my duty is to examine if the affidavit of the Defendant has disclosed a defence on the merit when juxtaposed with the case of the Claimant.
In Nwankwo & Anor. Vs. Ecumenical Development Cooperative Society (2007) LPELR 2108, the Supreme Court expatiated on what constitute a defence on the merit. To disclose a defence on the merit, such an affidavit is expected to disclose a good defence and the particulars of such defence adequately set out. Such a defence must not also be a sham intended to delay and frustrate justice.
In the instant case, I have considered affidavit and exhibits of then Claimant side by side the affidavit of the Defendant. Paragraph 2(V) of the Defendant’s letter in Exhibit ‘C1’ in this suit constitutes an admission that the Defendant was owing the Claimant 33,000 litres of AGO whose worth is N3,768,600.00 (Three Million, Seven Hundred and Six-Eight Thousand, Six Hundred Naira) only. This product was not supplied in spite of Exhibit ‘C2’ and has remained unsupplied up till now.
In my view

when the case of the Claimant is considered particularly with reference to Exhibits ‘C1’ – ‘C2’ side by side the case of the Defendant in its affidavit, it becomes manifest that the Defendant indeed has no defence on the merit to this suit. It is therefore safe to hold that the Claimant is entitled to judgment in this suit.
Consequently, it is hereby declared that the Claimant is entitled to the sum of N3,768,600.00 (Three Million, Seven Hundred and Sixty-Eight Thousand, Six Hundred Naira) only being outstanding balance for the supply of petroleum product which the Defendant has failed to supply.
1. The Defendant is hereby directed to pay the sum of N3,768, 600.00 (Three Million, Seven Hundred and Six-Eight Thousand, Six Hundred Naira) only to the Claimant being outstanding balance for the supply of petroleum product which Defendant has failed to supply.
2. The Defendant is directed to pay the Claimant post judgment interest at the rate of 10% per annum till final liquidation of the judgment sum. The Claimant cannot be granted more than 10% in post judgment interest in view of Order 35 rule 4 of the Rules of this Court.

Parties shall bear their costs.”

Dissatisfied with the judgment, the Defendant/Appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 13th July, 2017.

The relevant briefs of Argument for the appeal are:-
1. Appellant’s Brief of Argument filed on 10th January, 2019 but was deemed filed on 15th January, 2019. It is settled by Ekpedeme Iyoho.
2. Respondent’s Brief of Argument filed on 30th January, 2019. It is settled by Ndifreke Akpan Esq.
3. Appellant’s Reply Brief filed on 14th February, 2019. It was filed by Ekpedeme Iyoho Esq.

Learned Counsel for the Appellant nominated a sole issue for the determination of the Appeal. It is “whether considering the entire notice of intention to defend an (sic) and affidavit in support of same the judgment of the learned trial judge was proper (grounds 3 and 4).

Learned Counsel for the Respondent on the other hand formulated three (3) issues for the determination of the Appeal.
They are:
i. Whether having failed to formulate an issue from Grounds 1 and 2 of the Notice of Appeal filed on 13th July,

2017, the Appellant is not deemed to have abandoned the said grounds thus rendering them liable to be struck out? (Grounds 1 and 2).
ii. Whether in the light of Exhibit C2, there is anything on the Affidavit of Defence on the Merit showing that Appellant offered and was willing and ready to make the said supply as demanded in Exhibit C2? (Ground 4).
iii. Whether on the face of the Affidavit of Defence on the Merit filed by Appellant on 5th July, 2017 it can be said that a Counterclaim was raised warranting a consideration of same by the trial Court? (Ground 3).

It is obvious as pointed out by the learned counsel for the Respondent in his issue 1 that the Appellant has indeed abandoned grounds 1 and 2 of his Notice and Grounds of Appeal having not formulated any issue (s) from the said grounds. See Okereke vs. Umahi & 2 ORS. (2016) 11 NWLR (pt. 15 24) 438.

This appeal would nevertheless be determined by the sole issue nominated by the Appellant.

Learned Counsel for the Appellant submitted that upon being served with the Respondent’s Writ and Affidavit in support, Appellant filed her notice of intention to defend and affidavit in support of same.

He submitted that the bulk of Appellant’s defence on the merit is captured in paragraphs 12-15 of her affidavit where the Appellant stated that the Respondent failed to take delivery of the 33,000 litres of AGO product at the tank farm of the Appellant which was the regular trade practice. That Appellant also gave particulars of her counter claim arising from storage of the said product as the terms of the trade requires.

That based on the above, the Appellant contests the propriety of the judgment of the Court below on two grounds to wit: improper evaluation of the contending affidavit evidence and failure to address Appellant’s counter claim occasioning deprivation of the Appellant’s Right to fair hearing.

He submitted that in the first limb of Appellant’s Argument, Appellant has shown in its affidavit that all that was required to effect delivery of the product at Appellants tank farm was done. In paragraph 12-14, Appellant stated unequivocally and undisputedly that in the regular terms of the transaction, it is the Respondent who goes to the Appellant’s tank farm with her truck to load the

product.

This essential and material averment said Appellant stood uncontroverted. It was a clear case of the burden having shifted to the Respondent so as to show who was actually in breach of the transaction. The Appellant had no duty to load the product and deliver to the Respondent as same was contrary to the trade practice and term of transaction by the parties. In the circumstance, Appellant had a triable issue that called for further explanation. A triable issue under the undefended list is not necessarily a complete defence. He referred to the case of Trade Bank Plc vs. Spring Fin. Ltd. (2009) 12 NWLR (pt. 1155) p. 369 at 385 paras B-D thus:
“A triable issue or defence on the merit is such that the Plaintiff will be expected to explain certain matters or where the affidavit throws same doubt on the Plaintiff’s claim. A complete defence need not be shown. It suffices if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.”

He submitted that the Respondent did not show that he took steps to take delivery of the available product and there was need to

resolve same before finding the Appellant liable. Also, the circumstances under which the Respondent would repudiate the contract and proceeded to Court after giving 10 days ultimatum was not activated having not taken steps to take delivery of the product in issue. Courts are bound to enforce the contract of parties and not to make same. He referred to the case ofOmega Bank vs. O. B. C. Ltd. (2005) All FWLR (pt. 249) P. 1964 at 1988 C. There was therefore a defence which called for further explanation and not outright judgment.

Appellant in the second limb of her argument contend that the judgment of the lower Court was in utter violation of Appellant’s right to fair hearing. That Appellant pleaded a counter claim in his defence.

The Court made no pronouncement on it but proceeded to deliver his judgment.

He submitted that the court was bound to determine the counter claim one way or the other. Where a counter claim is connected to the main claim, they are bound to be tried together. The Courts have affirmed so severally including the case of Niger Aluminium Manufacturing Co. Ltd. vs. UBN (2015) LPELR – 26010 (CA) per Wambai JCA

thus:
“In SHEMAR NIG. LTD. VS. MOKT INDUSTRIES LTD. (2009) LPELR – 8871 (CA) this court per Okoro JCA (as he then was) held that:- “Where the Counter-claim is directly related to the principal claim, it will be desirable in an undefended list to transfer the suit to the ordinary cause list to try the two claims at once. It has the advantage of saving precious judicial time and cutting costs for the parties – see Nsefik vs. Muna (2007) 10 NWLR (pt. 1043) 502.”

Accordingly, said counsel the failure of the Court to have made any pronouncement or determination of Appellants’ issue on counter claim violated Appellant’s right to fair hearing as enshrined under Section 36(1) of the 1999 Constitution (as amended).

On the sole issue for determination. Learned Counsel for the Respondent submitted that notwithstanding the averment in paragraphs 11-15 of the Affidavit of Defence filed by the Appellant, the trial Court was right in finding in favour of the Respondent.

He submitted that exhibits C1 and C2 annexed to the Affidavit supporting Respondent’s claims are germane to the resolution of the issue.

He submitted

that Exhibit C1 is Appellant’s letter responding to Respondent’s demand letter. That at paragraph iv of the said letter the Appellant stated thus:
“That the said balance of 33,000 litres will be ready for supply if your client is now ready”

Learned Counsel for the Respondent submitted that inherent in the above quoted portion of Exhibit C1 is the position that the said product was not readily available for supply by the Appellant. This according to the Respondent’s Counsel necessitated Respondent’s response in Exhibit C2 thus:
“paragraph 1: “Sequel to your letter to us dated 11th April, 2017 on the above subject matter, our client Earthwell Petro-Allied Limited has accepted the terms proposed and is ready to receive the said balance of 33,000 litres of AGO.”
Paragraph 3: “Kindly note that our client demands that the product be supplied within Ten (10) days from the date of the receipt of this letter.”

Learned Counsel for the Respondent submitted that there is nowhere in the Affidavit of the Appellant that is it shown that Appellant later became ready to supply the

products and communicated same to the Respondent especially in the Light of Respondent’s demand that same be effected within 10 days. Counsel added that this is so because Respondent could not be expected to take steps to take delivery when the Appellant had not communicated the availability of the product and its readiness to supply as demanded by the Respondent.

He submitted that the Appellant failed to show that it was ready and willing to supply the products as demanded but Respondent failed to take delivery, hence the trial Court was right in finding for the Respondent.

Learned Counsel for the Respondent submitted that upon a proper evaluation of the affidavit evidence the trial Court found that no triable issue was disclosed by the Appellant in its Affidavit of Defence, when same is considered vis-a-vis the contents of Exhibits C1, C2 and the Affidavit supporting Respondent’s claims. That this informed the finding of the trial Court at page 43 of the Records thus:
“In my view when the case of the claimant is considered particularly with reference to Exhibit C1 – C2 side by side the case of the Defendant in

its affidavit, it becomes manifest that the Defendant indeed has no defence on the merit to this suit. It is therefore safe to hold that the claimant is entitled to judgment in this suit.”

On whether the Appellant counter claimed, Learned Counsel for the Respondent defined the word “Counter – Claim” through the decision of the Supreme Court in the case of Lokpobiri vs. Ogola & ORS. (2016) 3 NWLR (pt. 1499) 328 as equivalent to a cross action. He then reproduced paragraph 14 and 15 of the Appellant’s Affidavit of Defence as follows:
Paragraph 14:
“That claimant has been the one in breach of the transaction all the while which breach has caused the Defendant to incur expenditures in storage by way of ‘demurrage’ computed per litre of stored product daily since March, 2016.”
Paragraph 15:
“That Defendant has a counter claim in this suit arising from the breach of terms of the transaction occasioning loses to the Defendant.”

He submitted that the said bare paragraph of the Affidavit shorn of any particulars and reliefs cannot by any stretch of the argument be said

to constitute a counter claim. Respondent’s Counsel conceded that where a counter claim has been raised in a suit commenced under the undefended list procedure, same should be sent to the general cause list for hearing and determination but that such is not the case here.

He urged us to dismiss the appeal.
In his Reply Brief, Learned Counsel for the Appellant submitted inter alia that the Appellant’s contention that she was not heard on the issue of counter claim remains valid and urged us to allow the appeal.

RESOLUTION OF ISSUE
The case of the parties in this appeal is better appreciated and understood when one reproduces and peruses the content of their affidavit evidence and their ultimate exchange of correspondence as represented by Exhibits C1 and C2.

Paragraphs 5-14 of the Respondent’s/Applicant’s Affidavit in support of Motion Ex-parte summarizes the Respondent’s Claims in the Court below. They read thus:
5. That the Appellant paid the Respondent the sum of N7,537,200.00 (Seven Million Five Hundred and Thirty-Seven Thousand, Two Hundred Naira) only, for the supply of petroleum products.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the said sum was paid on the 21st of March, 2016 and the evidence of transfer is herewith attached and marked s Exhibit “A”.
7. That the Respondent only supplied one truck of 33,000 litres of petroleum product instead of the two trucks of 66,000 litres that was demanded and paid for by the Applicant and Respondent has since refused to supply the remainder of the products from the amount paid.
8. That the Applicant has demanded for the refund of the sum N3,768,600.00 (Three Million, Seven Hundred and Sixty-Seven Thousand, Six Hundred Naira) only, being the amount covering the outstanding quantity of petroleum product paid for, but which Respondent has failed, refused and neglected to supply, several times without any response from Respondent.
9. That on the basis of the above narrated state of affairs, Applicant caused to be written a demand letter dated 6th of April, 2017, to the Respondent and Respondent duly acknowledged receipt of same. That the said letter together with the Dispatch Note is here annexed and marked as Exhibits “B & B1”.
10. That the Respondent replied our letter through his Counsel

Mark Tambe Esq; where upon he admitted owing the sum of One 33 litres of AGO. The said letters dated 11th day of April, 2017 is annexed and marked as Exhibit C1.
11. That consequent upon the above I caused my solicitor to write to demand for the said product which the Respondent has failed to supply till date the said letter dated 20th April, 2017 is herein annexed and marked as Exhibit C2.
12. That the Respondent replied our letter through his Counsel Mark Tambe Esq; where upon he admitted owing the sum of one 33 litre of AGO. The said letters dated 11th day of April, 2017 is annexed and marked as Exhibit C1.
13. That consequent upon above 1 caused my solicitor to write to demand for the said product which the Respondent has failed to supply till date the said letter dated 20th April, 2017 is herein annexed and marked as Exhibit C2.
14. That since taking receipt of the said letter, Defendant has failed to make a refund of the said sum of N3,768,600.00 (Three Million, Seven Hundred and Sixty-Eight Thousand, Six Hundred Naira) only, being the outstanding balance for the remaining 33,000 litres of AGO.

On the other hand, paragraphs 7-16

of the Appellant’s Affidavit of Defence on the merit on pages 27-28 of the Record of Appeal read thus:
7. That in the Claimant’s Affidavit filed on 31st May, 2017 served on the Defendant, paragraphs 5-7 are not truly stated. Rather what Claimant paid for was specifically for the supply of Diesel, AGO and not any other petroleum product.
8. That the supply for the 2 trucks of Diesel was ready but Claimant suddenly and unilaterally changed the agreement and picked one truck and opted to go in search of kerosene product which was not part of the agreement.
9. That Defendant did not refuse failed or neglect to supply the agreed product as stated.
10. That paragraph 8 is denied Claimant never demanded for N3,768,600.00 but for N7m as shown in its Exhibit B.
11. That paragraph 9-13 are not truly stated. Rather upon the receipt of the demand for N7m, Defendant replied and stated its readiness to supply the remaining balance of 33000 litres of AGO if Claimant is now ready to receive.
12. That surprisingly, Claimant gave 10 days upon receipt of Defendant’s letter within which the supply should be made but never turns up

with any truck to take delivery of the product in line with the going practice of the transaction.
13. That in the terms of the transaction, it is the Claimant who goes to the Defendant’s tank farm to take delivery of the product.
14. That Claimant has been the one in breach of the transaction all the while which breach has caused the Defendant to incur expenditures in storage by way of ‘demurrage’ computed per litre of stored product daily since March, 2016.
15. That Defendant has a Counter Claim in this suit arising from the breach of terms of the transaction occasioning loses to the Defendant.
16. That it is in the interest of justice that Defendant be granted leave of defend this action.

Relatedly Appellant’s Exhibit C1 and Respondent’s Exhibit C2 are hereby reproduced as contained on pages 8-9 of the Record of Appeal.
NELSON IYOHO & ASSOCIATES
(Legal Practitioners and Consultants)
11th April, 2017
The Head of Practice
Star Attorneys
54 IBB Way
Uyo.
Attn: Ndifreke Akpan
Dear Sir,
RE: DEMAND FOR THE IMMEDIATE PAYMENT OF N537,200 TO EARTHWELL PETROL

ALLIED LIMITED
1. We are Solicitors to ‘DE ALVEN MARINE OIL AND GAS LIMITED’ our client.
2. Our client has forwarded your above captioned letter dated 6/4/17 to as with instructions to reply. Our client’s response include the following:
i. That the sum demanded by your agent was payment for 2 trucks of 33,000 litres each of AGO (diesel)
ii. That one truck of 33 litres was since supplied to your client with all the particulars intact.
iii. That your client said she was not ready for the second truck of 33,000 litres because she needed kerosene despite the fact that the AGO was ready for liftment.
iv. That the said balance of 33,000 litres will be ready, for supply if your client is now ready.
v. That our client does not owe your client the said N7m but 33,000 litres of AGO as agreed.
We trust you will advise your client accordingly.
Yours faithfully,
From E. NELSON-IYOHO & ASSOCIATES
Mark Tambe Esq.
(Solicitor)
STAR ATTORNEYS
Legal Service
20th April, 2017
Mark Tambe Esq.
c/o E. Nelson-Iyoho & Associate
212 Ikot Ekpene Road
Uyo, Akwa Ibom

State.
Sir,
RE: DEMAND FOR THE IMMEDIATE PAYMENT OF N537,200 TO EARTHWELL PETROL ALLIED LIMITED
Sequel to your letter to us dated 11th April, 2017, on the above subject matter, our client, Earthwell Petrol-Allied Limited has accepted the terms proposed and is ready to receive the said balance of 33,000 litres of AGO.
However, it must have the appropriate product documents of a Government Approved depot, which will be handed over to our client… receipt of the product.
Kindly note that our client demur as that the… from the date of the receipt of this…
We trust you will advise your client accordingly.
Yours faithfully,
For: Star Attorneys

A careful perusal of the Affidavit evidence of the parties in this case and their Exhibits C1 and C2 will reveal not only the insistence by the Appellant that by their trade practice, it is the Respondent that comes forward to receive the supplies of the product which

was not done in this case.
But the facts also reveal to my mind that the Respondent’s case may not indeed be ripe for Court action when the writ was instituted on 31st May, 2017.
In the consideration of the facts of this case, Learned Counsel for the Respondent and perhaps also the learned trial Judge seems to have read item iv of Exhibit C1 in isolation of item iii of the same Exhibit C1.
In context, items iii and iv of Exhibit C1 seem to suggest to the Respondent that if you have now changed your mind from finding kerosene and would stick to the supply of AGO as previously agreed upon we would be ready to make supply.
Again, the fact that the Respondent insisted in paragraph 3 of Exhibit C2 “that the product be supplied within Ten (10) days from the date of the receipt of this letter” added little or nothing to the trade practice of the parties when in fact it is the Respondent that goes for the supply of the AGO product. It seems to me that the situation would have been different if the Appellant failed to supply at the point the Respondent came to receive the supply as demanded.
Given these facts, it was not right

of the learned trial judge to hastily come to the conclusion that the Appellant did not raise any triable issues or that there was no defence on the merit.
We must always remember that at this stage of the undefended list procedure, the pertinent question is whether there is a triable issue which would necessitate the transfer of the suit to the general cause list and not whether the defence put forward by a Defendant would succeed.
In other words, a triable issue under the undefended list is not necessarily a complete defence. In the case of Trade Bank Plc vs. Spring Fin. Ltd. (2009) 12 NWLR (pt. 1155) 369 at 385.
It was held that:
“A triable issue or defence on the merit is such that the Plaintiff will be expected to explain certain matters or where the affidavit matters or where the affidavit throws some doubt on the Plaintiff’s claim. A complete defence need not be shown. It suffices if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.”
In the instant case the Appellant’s affidavit clearly throws some doubt on the Respondent’s

claim even if nothing more.
Secondly, I do not agree with the Learned Counsel for the Respondent that the Appellant needed more than the depositions in paragraphs 14-15 of the Affidavit of Defence to show that she also intended to counter claim against the Respondent.
Paragraph 14:
“That Claimant has been the one in breach of the transaction all the while which breach has caused the Defendant to incur expenditures in storage by way of ‘demurrage’ computed per litre of stored product daily since March, 2016.”
Paragraph 15:
“That Defendant has a counter claim in this suit arising from the breach of terms of the transaction occasioning loses to the defendant.”
More so, the Learned Counsel for the Respondent conceded the position of the law that where the counter claim is directly related to the principal claim, it will be desirable, in an undefended list to transfer the suit to ordinary cause list to try the two claims at once. It has the advantage of saving precious judicial time and cutting costs for the parties See Niger Aluminium Manufacturing co. Ltd. vs. UBN (2015) LPELR — 26010 (CA) per

Wambai JCA. SHEMAR NIG. LTD. VS MOKI INDUSTRIES LTD. (2009) LPELR – 8871(CA), Okoro JCA. NSEFIK VS. MUNA (2007) 10 NWLR (pt. 1043) 502. In the circumstances, the Learned Trial Judge was wrong in the instant case to have held that “the Defendant indeed has no defence on the merit to this suit…”
The only issue in this appeal is resolved in favour of the Appellant. The Appeal is meritorious and it is allowed.
The Ruling and Order of Aniekan E. Apkan J. delivered on 10th July, 2017 is suit No. HU/165/2017 are hereby set aside.
Suit NO. HU/165/2017 is accordingly remitted to the Honourable Chief Judge Akwa Ibom State to be tried in the ordinary/general cause list by another judge of the Akwa Ibom State High Court other than Aniekan E. Akpan J.

Parties to the appeal are to bear their respective costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA.

His lordship has adequately appraised and resolved the sole issue for determination. I agree that the appeal is meritorious and also allow same.

I abide by the orders made,

including the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the draft judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A and I am in agreement with the resolution of the issues presented for determination.

I therefore adopt all the order made in the lead judgment.

I also agree that the appeal is meritorious and is allowed.

Appearances:

Ekpedeme Iyoho Esq., For Appellant(s)

Ndifreke Akpan Esq. For Respondent(s)