DUNG v. UBA LTD (2020)

DUNG v. UBA LTD

(2020)LCN/14211(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/J/252/2017

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MRS THERESA J. DUNG APPELANT(S)

And

UNITED BANK FOR AFRICA LTD RESPONDENT(S)

RATIO

WHAT IS A CAUSE OF ACTION?

A cause of action is the entire set of circumstances giving rise to an enforceable claim; it is the fact or combination of facts which gives rise to the right to sue; it is every fact which it will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court: see Ibrahim v. Osim (1988) LPELR-1404 (SC) p.14-15, a decision also cited by appellant in her brief of argument. PER UGO, J.C.A.

WHETHER OR NOT DECLARATORY RELIEFS LIE AT THE DISCRETION OF THE COURT

Declaratory reliefs lie at the discretion of Court and can only be granted when the Court is satisfied that taking into account all the circumstances of the case the claimant is fully entitled to it: see Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, and Network Security Ltd. v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498. Being discretional in nature, declaration is not also granted simply because the defendant admitted the claimant’s averments, or that he did not even file a defence to the action. See Bello v. Eweka (1981) NSCC 48 @ 57-58 where the apex Court (Eso, JSC) had this to say:
“In fact, whether or not the point is taken by the defendant, the Court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one, see Markwald v. Attorney General (1920) 1 Ch. 348, see also Wallersteiner v. Moir (1974) 3 ALL E.R. 217 as per Buckley L.J. where the learned Lord Justice said:
‘It has always been my experience and I believe it to be the practice of long standing that the Court does not make declaration of right either on admissions or in default of pleadings… but only if the Court was satisfied by evidence. PER UGO, J.C.A.

THE EFFECT OF AN ORDER DISMISSING A SUIT

An order dismissing a suit has the effect of shutting out the plaintiff from the seat of justice for good (Eronini v Iheuko (1989) 2 NWLR (PT101) 46, Okpala v. Ibeme (1989) 2 NWLR (PT 102) 208; Usikaro v. Itsekiri Communal Land Trustees (1991) LPELR- 3427 (SC) p.29, (1991) 2 NWLR (PT 172) 150 (SC); such an order should therefore be made only when the plaintiff has failed, completely, to prove his case, not when the evidence shows that his claim has some merit and his failure was only due to a technical hitch as in this case: see Ejiofor v. Onyekwe & Ors (1972)1 ALL NLR (PT 2) 527 (SC), Okpaloka & Ors v. Umeh & Ors (1976) 9-10 S.C. 167 @189. PER UGO, J.C.A.

POWERS OF THE COURT OF APPEAL

Fortunately, Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 1, 3 and 4 of the Rules of the Court of Appeal 2016 vests on this Court enormous powers, in the course of hearing appeals, to make appropriate orders that can meet the justice of the case, and that is notwithstanding that no Appeal or Respondent’s Notice was filed was for that purpose. That power includes making any order that could have been made by the trial Court. Section 15 of the Court of Appeal Act 2004 reads:
15. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and …. shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…’
Order 4 Rules 3 and 4 of the Court of Appeal Rules 2016 on their part state that:
R.3: The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further order (s) as the case may require, including any orders as to costs.
R.4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and that the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties. (Italics mine)
In fact the power to amend orders of the lower Court in appropriate cases in the interest of justice inheres in the appellate Courts: see Osunrinde v. Ajamogun (1992) 6 NWLR (PT 246) 156 @ 191 (SC); Chikere v. Okegbe (2000) 7 SCNJ120 @ 148; Chiwendu v. Mbamali (1980) NSCC 140 @ 145; Metal Construction West Africa Ltd v. Migliore & Anor (1979) NSCC 210 @ 238-239; FBN Plc v. Attorney General of the Federation (2018) 7 NWLR (PT 1617) 12 @ 16 (SC); SeeKatto v. Central Bank of Nigeria (1991) 12 SCNJ 1 @ p. 17-18. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal has its root in two events – first, the auction sale in October 2001 to appellant by respondent, its mortgagee, of the property located at Gold Base, Jos, Plateau State, and secondly the subsequent setting aside of that sale by the High Court of Plateau State in the year 2011 in Suit No PLD/J233/2004 at the instance of the mortgagors, Mr. Patrick Adikwu and Another as plaintiffs, which suit they, mortgagors, prosecuted only against respondent without joining appellant as its buyer and person likely to be directly affected by the result of the action.

Hinging her case on the said judgment of the Plateau State High Court in Suit No PLD/J233/2004 setting aside the auction sale, appellant commenced Suit No LPD/J230/2012, from which this appeal arose, before the same Plateau State High Court against the Respondent. She there claimed:
1. Declaration that the Respondent’s conduct in writing her a letter dated 13/09/2004 despite being aware of the suit No. PLD/J233/2004 instituted against it, refusing to disclose the institution and prosecution of that suit to the plaintiff

to enable the plaintiff defend her title or interest, stealthily and insidiously retaining her purchase price even though she had lost her title on the said property covered by Certificate of occupancy No. 13672, engaged in various acts of dishonesty, grossly contravened the defendant’s fiduciary relationship to her, plaintiff/appellant.
2. Special damages of N500,000.00 as representing her purchase price, the consideration for it having wholly failed.
3. The sum of N14,500,000.00 (Fourteen Million Five Hundred Thousand Naira) also as special damages representing the difference in monetary value of what was paid to the Defendant in 2001 as purchase price and the current market value of the said property.
4. The sum of N50,000,000.00 (Fifty Million Naira) being general damages, and finally
5. Cost of the action.

She made no pretence in her statement of claim about the fact that her case was founded mainly on the proceedings and judgment in Suit No. PLD/J233/2004. She maintained that Respondent as the seller of the property owed her a fiduciary duty to join her in the suit and was negligent and dishonest in failing to do that,

even more so when respondent was taking actions, including making her perfect that sale, during the very pendency of that suit thus giving her the impression that all was well with the sale to her.

Respondent in her statement of defence denied negligence or dishonesty in her conduct and went on to aver among others that at the time it exercised its right under the legal mortgage in the year 2001 no suit and particularly Suit No PLD/J233/2004 was pending; that it pleaded specifically in Suit No PLD/J233/2004 that it had already sold and indeed transferred her interest in the property to appellant; that since it had no claim or cause of action against appellant, it had no duty to apply to join her in the suit; that it is the plaintiff in that suit whose adverse claim affected the interest of the appellant herein that had the duty to apply to join appellant; that it defended Suit No. PLD/J233/2004 in the best legal tradition and the trial judge found in its favour on all the claims but strangely purported to nullify the sale for no reason.

On the steps it took regarding the said judgment nullifying her auction sale to appellant, it said it was on

appeal against it and gave notice that it would rely on its Notice of Appeal as well and other appeal processes. It concluded by asserting that given their pending appeal, appellant’s action was premature.

Appellant responded with an eleven-paragraphed Reply where she reasserted her claim of liability of respondent and further joined issues with Respondent regarding the appeal she claimed to have filed against the judgment of Suit No PLD/J233/2004. She said thus in paragraphs 8 and 9 of her Reply:
8. In reply to paragraph 9(h) of the defendant’s defence, Plaintiff states that upon being served with the defendant’s statement of defence, Plaintiff did carry out a routine check at the registry of the High Court of Justice, Bukuru in the course of which she established the fact that no Notice of Appeal was filed at the Registry of that Court by the defendant in connection with the judgment delivered in Suit No PLD/J233/2004.
9. In reply to paragraphs 13 and 14 of the defendant’s defence, the Plaintiff aver that the auction sale transferring the property covered by C of O No 13672 to her having been set aside by a judgment of

the High Court of Justice, Bukuru, this suit cannot be said to be premature. Besides there is no pending appeal against the said judgment.

At the trial, appellant called two witnesses and closed her case with her evidence.

Respondent on her part called a single witness, in the course of which and with the consent of appellant it also tendered from the Bar two appeal processes – a Notice of Appeal she had filed in the Supreme Court against the decision of this Court refusing its application for extension of time to the judgment in Suit No PLD/J233/2004 and her Reply on Points of Law also filed in the Supreme Court in that appeal. The said two documents were admitted without objection as Exhibits I and J respectively.

In its judgment, the trial High Court of Plateau State (Lot, J., now retired) after finding categorically that the case of the appellant as far as the material facts are concerned had ‘not been challenged’ by the defendant so it was bound to act on it, nevertheless agreed with Respondent’s contention that the action was premature given the existence of respondent’s appeal (Exhibits I and J) to the Supreme

Court against the decision of this Court dismissing its application for extension for time to appeal the judgment of Suit No PLD/J233/2004, and on that ground proceeded to make an order dismissing the action.

Appellant is dissatisfied by that decision hence this appeal. By her admission, only her complaint in Ground 1 of her five-ground Notice of Appeal was canvassed by her at the trial while every other issue is a new one.

Among the new issues she has canvassed in this appeal is the admissibility of Exhibits I and J, even as she consented to their admission at the trial. To her credit, though, she sought for and was granted (with Respondent not opposing her application) leave by this Court to raise the said new issues.

From her five grounds of appeal, appellant has distilled the following three issues for determination by this Court:
1. Whether she is entitled to damages for respondent’s negligent conduct and dishonest attitude in the way it treated her.
2. Whether exhibits I and J were properly evaluated by the Court below before they were admitted in evidence and relied on in dismissing her case.
3. Whether the Court

below is justified in relying on an appeal that was filed in 2013 in dismissing a suit that was instituted on 22/06/2012 even though she was not a party to the said appeal.

The Respondent adopted issues 2 and 3 of appellant as framed above but formulated its issue 1 to read – Whether the trial Court was right when after holding that the evidence of the appellant was unchallenged yet failed to grant her monetary reliefs claimed.

Issue 1: The main argument of appellant on her Issue 1 is that, the trial Court having properly evaluated the evidence before it and come to the correct conclusion, that she had proved her material averments of negligence and dishonest conduct on the part of the Respondent regarding her and same were by its finding unchallenged, ought to act on that unchallenged evidence and enter judgment granting all her claims the law being that where there is a wrong there is always a remedy to redress it.

In response, Respondent argued that the trial Court could only act on such unchallenged evidence where there is no hindrance on its path. There was a hindrance on the path of lower Court’s in the shape of her appeal to the

Supreme Court against the decision of this Court dismissing its application to appeal Suit No PLD/233/2004, it argued that if the trial Court had acted on appellant’s evidence and granted her reliefs, its appeal before the Supreme Court would have been negated should it succeed and this Court set aside the judgment of Lot J. that was the basis of appellant’s present suit. It also argued that at any rate, even if the lower Court was minded to give judgment to appellant, she could only be entitled to the damages she suffered, which is the N500,000 she paid as purchase price of the property and not its market value let alone special and general damages of N15million and N50million, all of which would have amounted to double compensation if awarded.

Issues 2 & 3: Appellant argued together her issues two and three and respondent also responded in similar fashion. On these two issues, appellant, while recognizing that she did not object to the admissibility of these two documents, leveraged nevertheless on the leave she obtained from this Court to question their admissibility and weight. Through her counsel, Mr. Gideon Ngwen, she argued, first,

that Exhibits I and J having been filed by respondent in 2013 and 2015 respectively by respondent, well after she commenced her action in the lower Court on 22/06/2012, both processes were caught by Section 83(3) of the Evidence Act 2011 rendering inadmissible in evidence any ‘document’ made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the document might tend to establish. Exhibits I and J, she thus argued, ought not to have been admitted in evidence by the trial Court even if she did not object to their admissibility.

On a second but related wicket and citing a good number of decided cases on what constitutes cause of action, appellant further argued that Exhibits I and J, having only come into existence after she had commenced her action in the lower Court, did not form part of her cause of action so the lower Court was again wrong in relying on them in determining her cause of action and her right to seek judicial relief against respondent and, on that basis, further submitted that the lower Court did not properly evaluate Exhibits I and J so this Court which has

similar power to evaluate documents should re-evaluate and discountenance them. She also argued that at any rate she was not a party to the proceedings in the said appeal before the Supreme Court so she was not bound by them

Respondent countered that while Exhibits I and J actually post-date appellant’s suit, they cannot be properly described as documents made while that suit was pending, being that they were filed by it in exercise of its Constitutional right of appeal under Section 241(1) of the 1999 Constitution of this country. It submitted that it is also its right to apply for extension of time to appeal and for this Court to extend time pursuant to Order 7 Rule 10(1) of the Rules of this Court even if it was unable to appeal within the statutory period. The said two documents having been pleaded by it in paragraph 9(h) of its statement of defence, it also submitted, were relevant and admissible, relevancy being the yardstick for admissibility of evidence. It submitted, finally, that the trial Court properly evaluated the said two documents so this Court has no business re-evaluating them.

Resolution of issues
I wish to first consider twin issues two and three of the admissibility of Exhibits I and J and their alleged improper or lack of evaluation by the lower Court. As shown above, Appellant’s first attack on these two documents was that since both appeal processes were undoubtedly filed while her suit was pending in the lower Court, they offended Section 83(3) of the Evidence Act 2011 which says:
Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. (Italics mine)
With all due respect to Mr. Ngwen who made that submission on her behalf, it does not appear to me that she is correct in her interpretation of Section 83(3) of the Evidence Act 2011; for processes like Exhibits I and J filed by a party to the case in exercise of his/her Constitutional right of appeal cannot be properly described as ‘statement’ made by a person interested at a time when proceeding were pending or anticipated ‘involving a dispute as to any fact which the statement might tend to

establish’ within the meaning of Section 83(3) of the Evidence Act 2011. Section 83(3) of the Evidence Act 2011 when read alongside subsection 83(1) preceding it clearly reveals that it (Section 83(3) of the Evidence Act) does not apply generally to every document made pendente lite as suggested by the argument of Mr. Ngwen but only to ‘statements’ made in such documents and which also ‘tend to establish a fact in dispute’ in the case. That much is not only clear from Section 83(3) reproduced above but also from a community reading of the entire provisions of the same Section 83, particularly Subsection 1, 2 and 3, which read thus:
83(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied –
(a) If the maker of the statement either –
(i) had personal knowledge of the matters dealt with by the statement, or
(ii) where the document in question is of forms part of a record

purporting to be a continuous record, made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters; and
(b) if the maker of the statement is called as witness in the proceeding:
Provided that the condition that the maker of the statement be called as witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to be attend as a witness, or he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) In any proceeding, the Court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such statement in evidence notwithstanding that –<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(a) the maker of the statement is available but is not called as a witness; and
(b) the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be true copy in such manner as may be specified in the order or as the Court may approve, as the case may be.
(iii) if the maker of the statement is called as a witness in the proceeding:… (Italics mine.)
The key phrases in these provisions are ‘statements made by a person in document’ which ‘might tend to establish the facts in dispute.’
In other words, the target of subsection 83(3) is not generally documents made while litigation is anticipated or pending but only ‘statements’ in documents made by any person interested in such litigation in which such statements might tend to establish the facts in dispute in the litigation, the rationale behind the provisions of Section 83(3) of the Evidence Act 2011 being to prevent a situation where persons interested in the outcome of a suit that is anticipated or pending would deceitfully proceed to make additional

statements on the issues likely to be disputed or already in dispute with a view to deflecting the course of the litigation in their favour on such issues. It is such craftiness, and only such conduct alone, the provisions of Section 83(3) seek to prevent. A notice of appeal, and Reply Brief filed in an appeal and which the appellant is pursuing, which is what exhibits I and J are, cannot be so described. By the way, if the lawmaker had wanted Section 83(3) of the Evidence Act to apply to all documents as suggested by the argument of Mr. Ngwen for appellant it would have simply framed the provision thus: Nothing in this section shall render admissible as evidence document made by a person interested at a time when proceeding were pending or anticipated. The words ‘statement’ and tending to establish inserted by the law maker in Section 83(3) of the Constitution are not there as surplus-age, after all the principle of interpretation is that law-maker does not use words in vain nor does he engage in tautology or surplus-age in the use of words: Tukur v. Govt. of Gongola State (1989) 4 NWLR (PT 117) 579.
Viewed from another angle, the existence

of Exhibits I and J as appeal processes filed by respondent in exercise of her right of appeal to the Supreme Court against the Ruling of this Court refusing her application makes those two documents relevant and admissible in evidence, after all relevance is the cornerstone of admissibility. In other words, they were also admissible for the limited purpose of supporting Respondent’s contention that she was already appealing the judgment of the Plateau State High Court in Suit No. PLD/233/2004 so appellant’s instant action founded on that judgment was premature. That is just as I also tend to agree with her that her superior Constitutional right of appeal cannot be stifled by any provision of the Evidence Act 2011.
For the same reasons, I also find untenable appellant’s argument that because her action was commenced before Respondent filed Exhibits I and J, the lower Court was wrong in applying them to her cause of action.

the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court: see Ibrahim v. Osim (1988) LPELR-1404 (SC) p.14-15, a decision also cited by appellant in her brief of argument. Appellant’s assertion that respondent did not appeal the judgment in Suit No. PLD/233/2004, which formed the main basis of her action, and so impliedly accepted it, was denied by respondent in her statement of defence; issues having been so joined and given what I said earlier about the non-applicability of Section 83(3) of the Evidence Act to Exhibits I and J, it was incumbent on the lower Court to consider them so.

And that takes me straight back to Issue 1 where appellant argued that, the lower Court having found that Respondent did not challenge her averments and so deemed to have admitted them, ought to have entered judgment for her. It appears appellant in making that submission overlooked the fact that her first and principal relief in her action is a declaration. Declaratory reliefs lie at the discretion of Court and can only be granted when the Court is satisfied that taking into account all the circumstances of the case the

claimant is fully entitled to it: see Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, and Network Security Ltd. v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498. Being discretional in nature, declaration is not also granted simply because the defendant admitted the claimant’s averments, or that he did not even file a defence to the action. See Bello v. Eweka (1981) NSCC 48 @ 57-58 where the apex Court (Eso, JSC) had this to say:
“In fact, whether or not the point is taken by the defendant, the Court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one, see Markwald v. Attorney General (1920) 1 Ch. 348, see also Wallersteiner v. Moir (1974) 3 ALL E.R. 217 as per Buckley L.J. where the learned Lord Justice said:
‘It has always been my experience and I believe it to be the practice of long standing that the Court does not make declaration of right either on admissions or in default of pleadings… but only if the Court was satisfied by evidence.

That seems to be the case here where the lower Court, after finding, as observed by appellant, that respondent

seems not to have properly challenged her averments of negligence and dishonesty, still refused to enter judgment for her, anchoring its reason for that action on respondent’s pending appeal at the Supreme Court. It justified its action in the following manner:
The implication of exhibit J in this trial is that if the Supreme Court finds in favour of the appellant (defendant in this case) leave would be given for the appellant to file and argue before the Court of appeal, their appeal against the judgment in Suit No. PLD/233/2004 would be reversed or set aside. Obviously, if this action as it stands succeeds, it will affect one way or the other the outcome of the pending appeal. In the light of the above findings, it becomes unsafe for this Court to at this stage grant the reliefs sought by the plaintiff in this action. I therefore uphold the submission of learned defence counsel that this suit is premature and ought not to succeed.
I am not convinced that it was wrong.

What I find troubling, however, is the correctness of the dismissal order it made following this reasoning. An order dismissing a suit has the effect of shutting out the

plaintiff from the seat of justice for good (Eronini v Iheuko (1989) 2 NWLR (PT101) 46, Okpala v. Ibeme (1989) 2 NWLR (PT 102) 208; Usikaro v. Itsekiri Communal Land Trustees (1991) LPELR- 3427 (SC) p.29, (1991) 2 NWLR (PT 172) 150 (SC); such an order should therefore be made only when the plaintiff has failed, completely, to prove his case, not when the evidence shows that his claim has some merit and his failure was only due to a technical hitch as in this case: see Ejiofor v. Onyekwe & Ors (1972)1 ALL NLR (PT 2) 527 (SC), Okpaloka & Ors v. Umeh & Ors (1976) 9-10 S.C. 167 @189.
A dismissal order in the circumstances of this case is capable of causing serious injustice to appellant, especially in the event that the Supreme Court dismisses respondent’s pending appeal to it. By its order of dismissal, appellant who it found had a good case would not be able to pursue her case again, not even the purchase price she paid respondent which in the circumstances is money had and received without consideration.
At any rate, an action that is premature means that it is not even due for trial. Such an action should therefore be simply

struck out and not dismissed.

given or made, and to make such further order (s) as the case may require, including any orders as to costs.
R.4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and that the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties. (Italics mine)
In fact the power to amend orders of the lower Court in appropriate cases in the interest of justice inheres in the appellate Courts: see Osunrinde v. Ajamogun (1992) 6 NWLR (PT 246) 156 @ 191 (SC); Chikere v. Okegbe (2000) 7 SCNJ120 @ 148; Chiwendu v. Mbamali (1980) NSCC 140 @ 145; Metal Construction West Africa Ltd v. Migliore & Anor (1979) NSCC 210 @ 238-239; FBN Plc v. Attorney General of the Federation (2018) 7 NWLR (PT

1617) 12 @ 16 (SC); SeeKatto v. Central Bank of Nigeria (1991) 12 SCNJ 1 @ p. 17-18.

In the result, the judgment of the lower Court dismissing appellant’s case is amended by substituting the order of dismissal it made against appellant’s case with one merely striking out her case.
Subject to that amendment, the appeal fails, and is here dismissed.
Parties shall bear their costs.

ADZIRA GANA MSHELIA, J.C.A.: I read in draft the lead Judgment just delivered by my learned brother, Ugo, J.C.A. I agree with his reasoning and conclusion. I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment costs inclusive.

TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning substituting the order of dismissal of the suit by the lower Court to striking it out. I also dismiss the appeal. No cost awarded.

Appearances:

Gideon Ngwen, Esq., with him, D.D. Dakur, Esq., Absalom Bappigyak, Esq., and J.A. Lakai, Esq. For Appellant(s)

Mrs. O.N. Adese, with her, J.C. Ugwu Esq. For Respondent(s)