EKONG & ANOR v. AKPAN (2020)

EKONG & ANOR v. AKPAN

(2020)LCN/14044CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/390/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. MR. ANIEKAN PETER EKONG 2. AKANINYENE EFFIONG EKONG APPELANT(S)

And

FRIDAY SUNDAY AKPAN RESPONDENT(S)

RATIO

THE PRIMARY FUNCTION OF THE TRIAL COURT

It is immaterial the form the evidence was reproduced and taken so long as it supports the facts pleaded and reliefs sought; then the Court can act on it and grant the relief. He referred to BROWN V STATE (2017) 4 NWLR (prt. 1556) 341 at 373, ONWUKA V EDIALA (1989)1 NWLR (prt 96) 182 at 208 and AGBAJE V FASHOLA (2008) 6 NWLR (prt 1002) 90 at 153 to the effect that evaluation of evidence is the primary function of the trial Court and decision reached on evidence will not be disturbed. PER SHUAIBU, J.C.A.

THE PRINCIPLE OF LAW IS THAT HE WHO ASSERTS MUST PROVE

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives an unbrided access to justice to all. However, the onus is on him who asserts to prove and it must on the balance of probability. Thus, it is for the trial Court to weigh the evidence by both parties on an imaginary scale and decide on the preponderance of evidence in whose favour the pendulum of justice would tilt. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

Having stated the imperativeness of weighing the evidence adduced by the contending parties, the law is equally settled that where the Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. In other words, an appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court except where the trial Court abdicates its duties of evaluation of evidence and the ascription of weight to the evidence, or when it demonstrably shown that it had not done it properly or having done it came to a wrong conclusion, or there are good and exceptional reasons to do so. In such cases, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See EZE V OKOLOAGU (2010) 3 NWLR (prt 1150) 183, AKINOLA V OLUWO (1962) 1 SCNLR 352 and AKINBADE V BABATUNDE (2018) 7 NWLR (prt 1618) 316 at 395. PER SHUAIBU, J.C.A.

WHETHER OR NOT A MINOR CONTRADICTION WHICH DOES NOT AFFECT THE CREDIBILITY OF A WITNESS IS FATAL TO THE EVIDENCE

For a contradiction in the evidence of witness to be fatal, same must be substantial. Thus, minor or maniture contradiction which did not affect the credibility of witness may not be fatal. In effect, trivial contradictions should not vitiate a trial. See ALO V STATE (2015) 9 NWLR (prt 1464) 238 at 291 – 292. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High court of Akwa Ibom State sitting at Uyo delivered on 24/3/2016 in which the learned trial judge Hon. Justice, Godwin J. Abraham dismissed the claims of the appellants and granted the counter-claim of the respondent.

The appellants as plaintiff/claimants at the lower court sued the respondent herein claiming the following:-
(a) A declaration that the defendant FRIDAY SUNDAY AKPAN of Atan Nsai who is claiming to be known and called FRIDAY EFFIONG EKONG the son of Late Mr. Effiong Etim Udo Ekong of Afaha Nsai is not the son of late Mr. Effiong Etim Udo Ekong and he (defendant) has no relationship whatsoever with the family of Late Mr. Effiong Etim Udo Ekong of Afaha Nsai in Ibiono Ibom Local Government Area of Akwa Ibom State or with the deceased property.
(b) An order directing the defendant and all other persons howsoever to stop forthwith from calling, labeling and or describing the defendant as the child or son of late Mr. Effiong Etim Udo Ekong of Afaha Nsai with the name Friday Effiong Ekong.

(c) An order of perpetual injunction restraining the defendant from claiming to be son or child of late Mr. Effiong Etim Udo Ekong of Afaha Nsai and/or to be further known, called or addressed as FRIDAY EFFIONG EKONG as the defendant is not the biological child or son of late Mr. Effiong Etim Udo Ekong of Afaha Nsai when his father, SUNDAY AKPAN OTON of Atan Nsai, is alive.
(d) An order of perpetual injunction restraining the defendant from committing further acts of trespass into the personal and landed property of late Effiong Etim Udo Ekong as the defendant has no colour of right either by inheritance or otherwise in interfering with the intestate estate of late Mr. Effiong Etim Udo Ekong of Afaha Nsai.
(e) An order directing the defendant to vacate, remove and move out from the land known and called “OKUKONG” property comprised in the intestate estate of late Mr. Effiong Etim Udo Ekong of Afaha Nsai and to demolish his illegal structure erected thereon without the consent and permission of the owner.
(f) The sum of N10,000,000.00 (Ten Million Naira) damages for the unwarranted trespass and unlawful use of properties comprised of the

intestate estate of late Effiong Etim Udo Ekong of Afaha Nsai village in Ibiono Ibom Local Government Area.

On being served, the respondent filed a statement of defence and counter-claimed thus:-
“24. The defendant counter-claims against the plaintiff and repeats the averments in paragraphs 1 – 23 of the statement of defence.
25. As stated in the defendant’s witness statement on oath, the claimant and some extended family members are those actually trespassing on the defendant’s property he inherited as the 1st son to late Effiong Etim Udo Ekong.
27. The 1st and 2nd claimants disparage and defame the defendant as an illegitimate child who forced himself on wrong parents from different parent and village.
28. Whereof the defendant has suffered damages and counter-claims against the claimants for the following orders/reliefs:-
1. An order forbidding and restraining the claimants, their agents, privies or, whosoever from castigating, labeling or discriminating against the defendant as not being a member of Nung Ekwere family of Afaha Nsai in Ibiono Ibom Local Government Area.
2. A declaration that the

defendant is the legitimate, bonafide and the 1st son of late Effiong Etim Udo Ekong of Afaha Nsai and not the son of Mr. Sunday Akpan (Aka Sunday Akpan Oton of Atan Nsai in Ibiono Ibom Local Government Area.
3. A declaration that the defendant is Friday Effiong Ekong of Afaha Nsai and not Friday Sunday Akpan of Atan Nsai, Ibiono Ibom Local Government Area.
4. A declaration that the acts of taking control, entering of the property of late Effiong Etim Udo Ekong by the 1st claimant and depriving the defendant of his customary rights as the 1st son to the use and enjoyment of his father’s property, namely, property of late Effiong Etim Udo Ekong by the claimants, amounts to trespass.
5. A declaration that the act of disparaging defaming the defendant as not being a true son or illegitimate child of Effiong Etim Effiong Udo Ekong of Afaha Nsai but that of Sunday Akpan of Atan Nsai amounts to defamation.
6. An order of perpetual injunction restraining the claimants/agents or whosoever from further trespassing to the said property named above.
7. Damages of N7 Million for trespass and cost occasioned to the defendant.

The matter proceeded to trial with the parties calling oral evidence and tendering documentary exhibits. In the end, learned trial judge found at pages 366 – 367 of the record as follows:-
“I have put the evidence of the plaintiffs and that of the defendant on an imaginary scale and upon preponderance of credible evidence, I have found that the scale tilts heavily in favour of the defendant.
I hold in respect of the 1st issue that the defendant is the biological and legitimate son of late Effiong Etim Udo Ekong. I then answered issue No.1 in the affirmative.
Consequently, I also answer the 2nd issue in the affirmative and hold that the defendant as the 1st son to Effiong Etim Udo Ekong is entitled to share in the estate of his father Effiong Etim Udo Ekong.
In respect of the 3rd issue, I hold that the plaintiffs failed to prove their case and hereby order that the same be and is hereby dismissed. As regard issue 4, I hold that the defendant has proved his counter-claim in respect of reliefs 1, 2 and 3. Reliefs 4, 5, and 6 of the counter-claim, have not been proved and I hereby order that the same be and are hereby dismissed. Still in

consequence of the part of the counter-claim that has succeeded it is held as follows:
1. I hereby declare that the defendant is the legitimate and bonafide son of the late Effiong Etim Udo Ekong of Afaha, Ibiono Ibom Local Government Area.
2. It is hereby declared that the defendant who is the 1st son of Effiong Etim Udo Ekong is entitled to be called, known and addressed as Friday Effiong Ekong.
3. It is hereby ordered that the plaintiffs whether by themselves or through their agents, privies or whosoever be and are hereby restrained from castigating or discriminating against the defendant as not being the son of Effiong Etim Udo Ekong (now late).
I shall not award (sic) damages against the plaintiffs nor award cost against them in view of their relationship with the defendant.”

Dissatisfied, appellants approached this Court vide a notice of appeal filed on 12/4/2016. The said notice of appeal contains four grounds of appeal. However, with leave of Court, the said notice of appeal was amended on 24/5/2017 but deemed on 28/11/2017.

The appellants by their amended brief of argument filed on 11/4/2019, settled by Nsikan

Ukpong, Esq. four issues are formulated for the determination of this appeal as follows:-
1. Whether learned trial judge did not err in law when he entered judgment for the respondent on the counter-claim even though same was not supported by evidence? (Distilled from ground 1).
2. Whether from the evidence adduced at the trial, the defendant/respondent have proved his paternity with the father of the appellants, Late Effiong Etim Udo Ekon of Afaha Nsai, Ibiono Ibom Local Government Area; to sustain his counter-claim? (Distilled from ground 3).
3. Whether the judgment of the trial Court can be justified based on the evidence on record? (Distilled from ground 3).
4. Whether there was proof of any marriage between Late Mr. Effiong Etim Udo Ekong of Afaha Nsai Ibiono Ibom Local Government Area with the mother of the respondent to infer that the respondent was the legitimate and bonafide son of late Effiong Etim Udo Ekong of Afaha Nsai, Ibiono Ibom Local Government Area? (Distilled from ground 4).

On the part of the respondent and in the brief of argument settled by Enyinekpe Udosen, Esq., all the four issues formulated by the appellants

were adopted.

Before delving into the respective submissions of learned counsel, it is pertinent to state the facts as disclosed in the record of appeal.

The father of the 1st appellant late Peter Etim Udo Ekong and father of the 2nd appellants Effiong Etim Udo Ekong were brothers. The father of 2nd appellant died in 1979 intestate and the 1st appellant’s father, Peter Etim Udo Ekong obtained letters of administration in respect of the intestate estate of Effiong Etim Udo Ekong in 1980. In 1999, Peter Etim Udo Ekong also died and the 1st appellant who claims to be the next of kin to the late Peter Etim Udo Ekong took over the administration of the late Ekong Etim Udo Ekong’s estate on behalf of his two children.

The case of the appellants at the lower Court was that the respondent is an indigene of Atan Nsai which shares a common boundary with Afaha Nsai, the appellants’ village. That sometimes in February, 2009 the defendant began to claim that he is the son of the late Effiong Etim Udo Ekong and thus trespassed on the parcel of land that belonged to late Effiong Etim Udo Ekong and began to raise structure. Appellants alleged

that the respondent’s parents are Sunday Akpan Oton and Elizabeth Sunday Akpan Oton both of Atan Nsai of Ibiono Ibom Local Government Area.

On his part, the defendant maintained that he is the 1st son of late Effiong Etim Udo Ekong and that the 2nd appellant is his younger brother from a different mother. He also claims that he is from Afaha Nsai and not Atan Nsai and that his name is Friday Effiong Ekong not Friday Sunday Akpan of Atan Nsai. And that his mother had already given birth to him for Effiong Etim Udo Ekong before she got married to Sunday Akpan Oton and that his mother took him to the family of Sunday Akpan Oton.

Upon careful perusal of the four issues formulated by the appellants and adopted by the respondent, I found same to be intertwine and interwoven as the four issues questions the evaluation of evidence by the lower Court. That being the case, issues Nos. 1, 2, and 4 can conveniently be condensed into issue No.3. I shall therefore determine the appeal in the light of issue No.3 which is reproduced here under thus:-
Whether the judgment of the trial Court can be justified on the evidence on record?

Learned counsel for the appellants submits that a counter-claim is a separate, distinct and independent action which must be determined on its own merit and that the respondent’s counter-claim was not supported by evidence. He referred to ESUWOYE V BOSERE (2017) 1 NWLR (prt 1546) 256, ANIMASHAUN V OLOJO (1990) 6 NWLR (prt 154) all and ORJI V AMARA (2016) 14 NWLR (prt 1531) 21 to the effect that a counter-claimant in a counter-claim must prove his case on preponderance of evidence or on the balance of probability just as in any other ordinary civil action.

On the respondent’s paternity, learned counsel contend that the burden of prove lies on him because he is the party who alleges that he is the son of late Effiong Etim Udo Ekong. To prove his paternity, the respondent must produce scientific evidence which he never done. Apart from not proving through scientific evidence, that the deceased was his father, the respondent also failed to tender any other document to attest to his claim of paternity with late Effiong Etim Udo Ekong of Afaha Nsai in Ibiono Ibom Local Government Area

Learned counsel contends

that there was apparent contradictions in the evidence of the respondent as regards to the year he was born. The trial Court never resolved these contradictions and inconsistencies but yet proceeded and gave judgment declaring that the respondent is the son of late Effiong Etim Udo Ekong. He thus submits that where there is unexplained contradiction in the evidence of a witness, the Court cannot pick and chose which of the evidence to believe, but to reject that evidence and hold that the assertion on those contradictory evidence remains not proved. He referred to ARJOLU V ARJOLU (2011) 11 NWLR (prt 1258) 288 at 311, (1985) 2 NWLR (prt7) 393 and ONUGOGU V STATE (1974) 9 SC 1.

It was also contended that throughout the life time of late Effiong Etim Udo Ekong the respondent was not presented to him by his mother as his son and the deceased never acknowledged him as his son. The lower Court according to the learned counsel ought to have believed the evidence of the appellants which conclusively showed that the respondent was not the son and has no biological relationship with their father, Late Effiong Etim Udo Ekong who died

about 28 years before the respondent secured a certificate of origin and also claiming paternity of the deceased. Thus, it was submitted that the lower Court had no right to have declared him the son of late Effiong Etim Udo Ekong in the absence of scientific evidence or other proof in accordance with law.

In further argument, learned counsel submits that under our law, a marriage could be contracted either customarily or statutorily but neither the respondent nor his witnesses proved either. There was equally no evidence that the deceased, late Effiong Etim Udo Ekong acknowledged or adopted the respondent as his child during his life time. And having not so proved, the respondent is not entitled to the estate of late Effiong Etim Udo Ekong, concluded learned counsel for the appellants.

Responding to the appellants’ arguments in this appeal, learned respondent’s counsel submits that what is important is whether there is evidence placed before the Court by the respondent to support the counter-claim. It is immaterial the form the evidence was reproduced and taken so long as it supports the facts pleaded and reliefs sought; then the Court

can act on it and grant the relief. He referred to BROWN V STATE (2017) 4 NWLR (prt. 1556) 341 at 373, ONWUKA V EDIALA (1989)1 NWLR (prt 96) 182 at 208 and AGBAJE V FASHOLA (2008) 6 NWLR (prt 1002) 90 at 153 to the effect that evaluation of evidence is the primary function of the trial Court and decision reached on evidence will not be disturbed.

Still in argument, learned counsel referred the evidence of the respondent and his witnesses in submitting that same is unassailable when placed side by side with the evidence of the appellants.

On the issue of paternity, learned counsel concedes that same could be established scientifically through DNA test but that paternity can also be established by the acknowledgement by the father accepting paternity or even presumed by law in accordance with Section 165 of the Evidence Act relying on the cases of IBEABUCHI V IBEABUCHI (2016) LPELR – 41268 and OKOLONWAMU V OKOLOWAMU (2014) LPELR – 22631. He thus submits that the respondent and his witnesses also led evidence to show the acknowledgement of paternity of the

respondent by late Effiong Etim Udo Ekong who took care of DW2’s birth expenses at the traditional birth attendant and the naming of the respondent. Furthermore, DW1 and DW2 testified as to the existence of the marriage between the respondent’s mother and late Effiong Etim Udo Ekong as at the time the respondent was born. He also relied on Section 165 of the Evidence Act and the case ofODUCHE V ODUCHE (2005) LPELR – 5976 to the effect that presumption of legitimacy can only be displaced by showing that the parties to the marriage had no access to each other.

As regards the quality of evidence adduced at the trial, learned counsel reiterated that the respondent has led credible evidence to show that his late father and his mother had intimate relationship that resulted in his birth which evidence was never controverted or discredited by the appellants. He submits that the acceptance of the pregnancy and the naming of the respondent is a recognized acts of acknowledgement by the respondent’s father Effiong Etim Udo Ekong. He referred to OLANREWAJU V GOVERNOR OF OYO STATE (1992) 9 NWLR (prt 265) 335 at

360.

He contend further that the fact that the respondent was taken away by DW2 and was never seen again by late Effiong Etim Udo Ekong after the time of birth until he passed on does not ipso facto derogate from the paternity of the respondent. And that it is not every contradiction that warrants the Court to treat the evidence unproved. He submits that it is the parent of the child that is in the best position to determine the date of birth of the child in the absence of birth certificate.

On the proof of marriage between late Effiong Etim Udo Ekong with the mother of the respondent, learned counsel referred to the evidence of DW1, the only direct surviving sibling of late Effiong Etim Ekong who said she witnessed the marriage between Elizabeth Akpan Okon (DW2) and her brother late Effiong Etim Udo Ekong. He submits that the respondent has led evidence to the fact that DW2 was married to late Effiong Etim Udo Ekong when the respondent was conceived and born. Hence, the evidence of marriage could also be deduced from the act of cohabitation.

Finally, learned counsel contend that the issue of marriage of DW2 and late Effiong Etim Udo Ekong not

being an issue at the lower court, the appellants cannot be allowed to raise it at this point as parties are bound by their pleadings. He referred to ATANDA V HON. COMMISSIONER FOR LANDS AND HOUSING (2018)1 NWLR (prt 1599) 32.

Before proceeding to determine the appeal, it is pertinent to comment briefly on the appellants’ reply brief filed on 9/1/2020. A reply brief is meant to answer new and substantial points arising from the respondent’s brief and not to improve, garnish, embellish and dilate on the appellant’s brief. I have taken pains to look at the said appellants’ reply brief in this case and I am unable to discover any new and substantial issues raised and argued in the respondent’s brief necessitating a reply brief of 14 pages. The said appellants reply brief is accordingly discountenanced as having no utilitarian value to serve.

parties on an imaginary scale and decide on the preponderance of evidence in whose favour the pendulum of justice would tilt.

The appellants in this appeal complained that the trial Court has failed to properly evaluate the evidence adduced and therefore came to a wrong conclusion that the respondent was a legitimate son of Effiong Etim Udo Ekong who died in 1979 and who in his life time neither recognize nor acknowledge the respondent as his child. It was thus the contention of the appellants that the respondent did not prove his claims in the counter-claim.

not done it properly or having done it came to a wrong conclusion, or there are good and exceptional reasons to do so. In such cases, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See EZE V OKOLOAGU (2010) 3 NWLR (prt 1150) 183, AKINOLA V OLUWO (1962) 1 SCNLR 352 and AKINBADE V BABATUNDE (2018) 7 NWLR (prt 1618) 316 at 395.

Before embarking on the task of discovering whether the trial Court had abdicated its duty of properly evaluating the evidence in this case, let me say straight away that paternity and marriage are not so interwoven that proof of paternity must necessarily imply marriage between the parents involved. See ANWADIKE & ANOR V ANWADIKE (2019) LPELR – 469.

Learned appellants’ counsel has strenuously argued that the respondent did not prove the existence of marriage be it customary or statutory between DW2, the respondent’s mother with late Effiong Etim Udo Ekong as there was no evidence of payment of bride price given as is customary with customary

marriages.

The provision of Section 166 of the Evidence Act deals with presumption of marriage and it provides that:-
“166, when in any proceeding whether civil or criminal, there is a question as to whether a man or woman is the husband or wife under Islamic or customary law of a party to the proceeding the court shall, unless the contrary is proved, presume the existence of a valid and subsisting marriage between the two persons where evidence is given to the satisfaction of the Court of cohabitation as husband and wife by such man and woman.”
In ANYAEGBUNAM V ANYAEGBUNAM (1973) LPELR 507, the Supreme Court has held that it will be inappropriate to suggest that the only way to prove a birth, death or marriage is by the production of the relevant certificate or a certified copy thereof. Thus, where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed; in the absence of decisive evidence to the contrary, even though it may be necessary to presume the granting of a general licence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In the instant case, there is the evidence of DW1 Affiong Etim Udo Ekong the only surviving sibling of late Effiong Etim Udo Ekong who testified at page 149 of the record thus:-
“That as at 1970, I was already living in Calabar, in one of my visits from Calabar, in 1972, I discovered that my brother’s wife Elizabeth (former wife of late Mr. Effiong Etim Udo Ekong whom I assisted on entering the matrimonial home had put to birth a male child (now the defendant) for my eldest brother, late Effiong Etim Udo Ekong.”
She testified further that:-
“That when my elder sister Nkoyo Etim Udo Ekong died in 1997 and my brother Peter Ekong also died in 1999, the defendant contributed as a family member, for the burial of his aunty and uncle respectively.”

When cross-examined, DW1 was explicit as regards the marriage and cohabitation between her late brother and DW2, the respondent’s mother when she stated:-
“…I witnessed the marriage between Elizabeth Akpan Oton and my brother Effiong Etim Udo (now late) when Elizabeth was pregnant I left for Calabar so I do not know what happened to the

marriage.”
Also the evidence of DW2 and DW3 are in tandem with that of DW1 on the marriage and cohabitation between Effiong Etim Udo Ekong and DW2. In an answer to the question put to DW3 during cross-examination, he explained that:-
“It is only after the elderly people died that the younger members of the family claim that Friday was not the biological son of Effiong Etim Udo Ekong.”

From the foregoing, the evidence of DW1 and DW3 had laid to rest the issue marriage and cohabitation between the respondent’s parents as the law presumes a child born while a marriage is valid or during two hundred and eighty days after its dissolution to be conclusive proof that it is the legitimate child of the man unless it is proved by clear and compelling evidence that the husband and the wife did not or could not have cohabited.

Learned appellants’ counsel also made an allusion as to the contradictions in the evidence of the respondent and his witnesses as to the year of his birth. For a contradiction in the evidence of witness to be fatal, same must be substantial. Thus, minor or maniture contradiction which did not affect

the credibility of witness may not be fatal. In effect, trivial contradictions should not vitiate a trial. See ALO V STATE (2015) 9 NWLR (prt 1464) 238 at 291 – 292. In this case, there was no contradiction on the substance of the case and the minor discrepancy on the year when the respondent was born cannot by any stretch of imagination be fatal.

In the result, the findings of the trial Court in favour of the respondent were clearly borne out from the evidence adduced. After all, an appellant who relies on improper evaluation of evidence to set aside the judgment of trial Court has the onus to identify or specify the evidence improperly evaluated or not evaluated. He has to convincingly show that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation. The appellant in the instant case has woefully failed to discharge the onus of showing that if properly evaluated, the conclusion would be favourable to their case. In all, there is no merit in their complaint against the judgment of the trial Court. Accordingly I hereby entered an

order dismissing the appeal. I affirm the judgment of the trial Court. Appeal dismissed. Parties to bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. SHUAIBU JCA.
I agree with the reasoning and conclusion. I agree that the appeal is unmeritorious and deserves to be dismissed.
I abide with the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the opportunity of reading in advance the judgment just delivered by my learned brother, M. L. SHUAIBU, JCA and I agree with the resolution of the appeal.
I too dismiss the appeal.

Appearances:

D. Itat For Appellant(s)

Udosen with him, I. Etuk For Respondent(s)