GAZI CONSTRUCTION CO. LTD v. BILL CONSTRUCTION NIG. LTD. (2011)

GAZI CONSTRUCTION CO. LTD v. BILL CONSTRUCTION NIG. LTD.

(2011)LCN/4241(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 19th day of January, 2011

CA/A/205/05

RATIO

INADMISSIBLE EVIDENCE: THE CATEGORIES OF INADMISSIBLE EVIDENCE

In Shitu vs. Fashawe (2005) 7 S.C. Part II Page 107 at Page 118 Musdapher JSC held among others that there are two categories of inadmissible evidence. “It must be borne in mind that there are two categories of evidence. Evidence that is absolutely inadmissible in law, that is not within the competence of the parties to admit by consent or otherwise. It is a document which is by law inadmissible. Minister of Lands vs. Azikiwe (1969) 1 All NLR Page 49…. The second class of inadmissible evidence is for example, a document which is inadmissible in law but upon fulfilling certain condition, parties may by consent admit it notwithstanding the condition not being fulfilled, e.g. the admission of unstamped instrument required to be stamped. See- Etim vs. Ekpe (1983) NSCC Page 86; – Igbdim vs. Obianke (1976) 9-10 S.C. Report Page 108. PER JIMI OLUKAYODE BADA, J.C.A

INADMISSIBLE EVIDENCE : WHETHER A WHO FAILED TO OBJECT TO THE ADMISSION OF AN INADMISSIBLE EVIDENCE AT THE TRIAL, CAN BE ALLOWED TO RAISE AN OBJECTION AT THE APPEAL STAGE

WHETHER THE POWER OF THE TRIAL COURT TO REJECT ANY EVIDENCE WHICH HAS BEEN WRONGLY ADMITTED IN EVIDENCE CAN ONLY BE EXERCISED IN CIRCUMSTANCES IN WHICH THE DOCUMENT IS BY LAW ABSOLUTELY INADMISSIBLE

Although the trial court may reject any evidence which has been wrongly admitted in evidence but this power can only be exercised in circumstances in which the document is by law absolutely inadmissible. See the case of:- – Salau Olukade vs. Abolade Alade (1976) 10 NSCG Page 34. In a similar situation as in this case, the Supreme Court in the case of I.B.W.A. vs. Imano Nig. Ltd. (supra) per Iguh JSC stated that:- “In my view the learned trial Chief Judge having admitted Exhibit 5 in evidence by consent and without any objection to its admissibility and the said Exhibit 5 not being a document that was inadmissible in law in any event and in all circumstances, erred in law in expunging the same from the proceedings. I think also that the Court below was on sound ground when it overruled the said decision of the trial Court.” Also in H.M.S. Ltd vs. First Bank (1991) S.C. Part II Page 26 at 42. Wali JSC held among others that:- “Where a document is admissible in civil proceedings under certain conditions and the same is admitted with procedural defect but without objection the appeal Court will not upset the trial Court’s decision solely on the ground of inadmissibility of such a document.” PER JIMI OLUKAYODE BADA, J.C.A

DOCTRINE OF ESTOPPEL: INSTANCES WHEN THE DOCTRINE OF ESTOPPEL WILL OPERATE

In the case of:- – Ukaegbu vs. Ugoji (1991) 6 NWLR (Part 196) Page 127 at 146, the Supreme Court defined Estoppel as:- “…an admission of something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it. Estoppel prohibits a party from providing anything which contradicts his previous acts or declarations to the prejudice of a party who relying upon them has altered position.” PER JIMI OLUKAYODE BADA, J.C.A

TYPES OF ESTOPPELS : POSITION OF THE LAW ON THE KINDS OF ESTOPPELS

…in Odjevwedje vs. Echannokpe (1987) 1 NWLR Part 52 Page 633 at 654 the Supreme Court stated the law that there are two kinds of estoppels as follows:- “Now, there are two kinds of estoppel by record inter parties or per rem judicatam as it is generally known. The first is usually referred to as “cause of action estoppel” and it occurs where the cause of action is merged in the Judgment which is Transit in rem judicatam. (See – King vs. Hoare (1844) 13 M&W. 495 at 504). Therefore on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final Judgment between the same parties, or their privies, who are litigating in the same subject-matter, there is an end of the matter. They are precluded from relitigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by the Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies) in these circumstances “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See
Outram vs. Morewood (1803) 3 East 346 Issue Estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.” PER JIMI OLUKAYODE BADA, J.C.A

ESTOPPEL INTER PARTIES OR PER REM JUDICATAM : PRE-CONDITIONS THAT MUST EXIST BEFORE THE PRINCIPLE OF OF ESTOPPEL INTER PARTIES OR PER REM JUDICATAM CAN BE MADE

The Supreme Court held further:- “However for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply that:- (1) The same question must be for decision in both proceedings which means that the question for decision in the current suit must have been decided in the earlier proceeding.
(2) The decision relied upon to support the plea of issue Estoppel must be final. (3) The parties must be same (which means that the parties involved in both proceedings must be the same per se or by their privies.) PER JIMI OLUKAYODE BADA, J.C.A

PRIVIES: CATEGORIES OF PRIVIES

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

GAZI CONSTRUCTION CO. LTD. Appellant(s)

AND

BILL CONSTRUCTION NIG. LTD. Respondent(s)

JIMI OLUKAYODE BADA, J.C.A: (Delivering the leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No.-FCT/HC/CV/219/90 delivered on the 18th day of October 2004.
The Respondent as Plaintiff by an action commenced at the lower Court claimed against the Appellant who was the 1st Defendant as follows:-
“(a) The sum of N5 Million from the Defendants, jointly and severally for trespass committed on its plot at No. 505M/SC/319 Cadastral A2, Wuse, Abuja.
(b) A Declaration that the property belongs to the Plaintiff pursuance to their purchase at the premises of the High Court of Justice, Wuse, Abuja on the 23rd day of July 1993.
(c) An Order to restrain the Defendants from further interfering and disturbing the Plaintiff’s occupation of the said plot.”
The Appellant who was the 1st Defendant at the lower Court disputed the Plaintiff/Respondent’s Claim, counter-claimed against the Plaintiff who was identified as 1st Defendant in the Counter-claim, Mark Eze Ikoroba as 2nd Defendant and Chief Dairo Amupitan as 3rd Defendant. The counter claim are set out as follows:-
“(a) The sum of N300,000.00 being the cost of the material aggregates removed from site, and the cost of replacement of the concrete fencing pillars and wire mesh dug up and removed from site after excavation of the fence line.
(b) General Damages of N5 Million (Naira) for trespass to the land and property of the Plaintiff jointly and severally against the Defendants herein.
(c) In the alternative the Defendants seek for an order of this honourable Court rescinding and setting aside the so called auction sale by the second Defendant/Judgment creditor Mark Eze and his Counsel Chief Dairo Amupitan the 3rd Defendant as the same was purportedly carried out illegally without any order of Court.” (See pages 86-87 of the record of proceedings).
At the conclusion of hearing Judgment was entered in favour of the Respondent who was the Plaintiff at the lower Court.
The counter claim was found to be unmeritorious and it was dismissed.
The 1st Defendant now Appellant dissatisfied with the said Judgment now appealed to this Court.
The Appellant in its Amended Notice of Appeal filed 9 grounds of appeal. The said Amended Notice of Appeal filed on 28/4/06 was deemed properly filed on 12/9/06.
The learned Counsel for the Appellant formulated six issues for determination set out as follows:-
“(a) Whether the learned trial Judge was right in rejecting Exhibits D1, E, F, G, and H even when the Respondent did not object to its admissibility at the trial.
(b) Whether the decisions of the High Court of FCT contained in Exhibits Dl, E, G and H could apply as res judicata or estoppel so as to deprive the Court of jurisdiction to entertain the matter.
(c) Whether the Court was right in setting aside either directly or indirectly previous and subsisting decisions and order made by the Court of competent Jurisdiction.
(d) Whether the Respondent could acquire a valid interest in the land, the subject matter of this suit during pendency of a suit.
(e) Whether the Respondent proved that there was a valid sale of the land, the subject matter of this suit to it in an auction sale.
(f) Whether the learned trial Judge was right in entering Judgment on the facts in favour of the Respondent and dismissing the Appellant’s Counter Claim.”
The learned Counsel for the Respondent adopted the 6 issues for determination formulated on behalf of the Appellant.
At the hearing, the learned counsel for the Appellant referred to the Appellant’s Further Amended Brief of Argument filed on 15/12/2009 but deemed filed on 11/12/2010. He adopted the said brief as his argument in urging that the appeal be allowed.
The learned counsel for the Respondent on the other hand referred to the Respondent’s Brief of Argument filed on 20/3/09 but deemed filed on 23/3/2009. He adopted the said brief as his argument in urging that the appeal be dismissed.
ISSUE NO 1
Whether the learned trial Judge was right in rejecting and expunging Exhibits Dl, E, F, G and H when the Respondent did not object to its admissibility at the trial.
The learned Counsel for the Appellant stated that Exhibits D1, E, F, G and H were tendered in evidence by the Appellant at the lower Court and the Respondent did not object to the admissibility of the said documents. But the learned trial Judge suo motu raised the issue of admissibility of the said documents and resolved same against the Appellant without affording it the opportunity to argue the point before coming to a decision thereon.
He relied on the following cases:-
– Shittu vs. Fashawe (2005) 7 S.C. Part II Page 107 at 118:
– Okeke vs. Obidife (1965) 4 NSCC Page 36.
– IBWA Ltd. vs. Imano Nig. Ltd. (2001) 3 S.C. Page 182 at 193.
He also stated that the Respondent did not join issues in respect of the issues raised in or contained in the Exhibits the Court expunged from the records in its Judgment neither did they object to the admissibility of the same. He stated further that the Court declared the documents inadmissible for failure to comply with section 111 and 112 of the Evidence Act.
He contended that the said documents are admissible upon fulfillment of certain conditions.
He submitted that the trial Court erred in declaring the said documents inadmissible.
He relied on the case of:-
– H.M.S Ltd. vs. First Bank (1991) 1 S.C. Part II Page 26 at 42;
– Hambe & Another vs. Huze & Others (2001) 5 NSCQR Page 342 at 350-351;
– Aburime vs. NPA (1978) 4 S.C. Page III.
In his response on this issue, the learned Counsel for the Respondent stated that a Court is expected in all proceedings before it to admit and act only on admissible evidence, and to that extent if a Court inadvertently admits any inadmissible document it has the duty not to act on it and expunge same from the records. He relied on the cases of:-
– Durosaro vs. Ayorinde (2005) 8 NWLR Part 927 Page 407;
– Abdul vs. Bensu (2003) 16 NWLR Part 845 Page 50.
He went further in his submissions that it is not within the competence of the parties to a proceeding to admit by consent or otherwise documents which by law are inadmissible. He stated that it is the duty of the trial Court when considering its Judgment to expunge such inadmissible evidence.
He relied on the following cases:-
– Kankia vs. Maigemu (2003) 6 NWLR Part 817 at Page 496;
– Aduke vs. Adedokun (1986) 3 NWLR Part 30 Page 548;
– Owoniyi vs. Omotoso (1961) 2 SCNLR Page 57;
– Alashe vs. Olarillu (1964) 1 All NLR 390;
– Buhari vs. Obasanjo (2005) 13 NWLR Part 941 Page 1 at 87.
He went further in his argument that if a court discovers that inadmissible evidence were admitted in the course of writing the Judgment, it would be unnecessary to hear Counsel in the circumstance before the Court can exercise its power to expunge the inadmissible evidence suo motu.
He relied on the following cases:-
– Kuti vs. Alashe (2005) 17 NWLR Part 955 Page 625;
– U.B.A. Plc vs. Ayinke (2000) 7 NWLR Part 663 Page 83:
– Agaji vs. Adigun (1993) 1 NWLR Part 269 Page 201.
He contended that Exhibits D1, E, F and G, tendered by the Appellant and admitted are public documents and did not comply with Section 111 of the Evidence Act. In the circumstance he submitted that the documents are worthless and irrelevant and therefore inadmissible.
He relied on the following cases:-
– Witt & Buseh Ltd. vs. Goodwill & Trust Invest. Ltd. (2004) 8 NWLR Part 874 Page 179;
– Ugoh vs. Benue State Local Govt. Service Commissioner (1995) 3 NWLR Part 383 Page 288
– Onyali vs. Okpala (2001) NWLR Part 694 Page 282:
– Anatogu vs. Iweka (1995) 8 NWLR Part 415 Page 547;
– Ukachukwu vs. Uba (2005) 9 NWLR Part 1028 Page 370;
– Okiki vs. Jagun (2000) 5 NWLR Part 655 Page 19;
– Fawehinmi vs. I.G.P. (2000) 7 NWLR Part 665 Page 481 at 525.
Learned counsel for the Respondent submitted that Exhibits D1, E, F, G and H were wrongly admitted but the lower Court has a duty to discard them and not to act on it because they are not legal evidence and the Appellate Court would not hesitate to expunge them irrespective of whether or not the opposing party objects to its admissibility.
He relied on the following cases:-
– Oseni vs. Dawodu (1994) 4 NWLR Part 339 at Page 390;
– ITA vs. Danazir (2000) 4 NWLR Part 652 Page 169:
– Alimi vs. Obawole (1998) 6 NWLR Part 555 Page 59:
– Tangale Traditional Council vs. Fawu (2001) 17 NWLR Part 742 Page 213.
He finally urged this Court to hold that Exhibits D1, E, F, G & H were rightly expunged from the record of the trial Court.
The learned trial Judge admitted Exhibits D, D1, E, F, G, and H as tendered in evidence by the Appellant. It is noteworthy that when the documents were being received in evidence the Respondent did not object to the admissibility of the said documents and it did not contend thereafter that the documents were wrongly admitted in evidence.
It has been contended on behalf of the Respondent that the issue of not raising objection to the admission of the documents does not arise, as it is not within the competence of the parties to a proceedings to admit by consent or otherwise documents which by law are inadmissible. And further that it is the duty of that court when considering its Judgment to expunge such inadmissible evidence.
I do not agree with the view of the learned counsel for the Respondent because, the documents rejected by the lower Court met the criteria for the admissibility of a document in evidence, in that they were pleaded, relevant and admissible as public document under section 111 and 112 of the Evidence Act.
In Shitu vs. Fashawe (2005) 7 S.C. Part II Page 107 at Page 118 Musdapher JSC held among others that there are two categories of inadmissible evidence.
“It must be borne in mind that there are two categories of evidence. Evidence that is absolutely inadmissible in law, that is not within the competence of the parties to admit by consent or otherwise. It is a document which is by law inadmissible. Minister of Lands vs. Azikiwe (1969) 1 All NLR Page 49…. The second class of inadmissible evidence is for example, a document which is inadmissible in law but upon fulfilling certain condition, parties may by consent admit it notwithstanding the condition not being fulfilled, e.g. the admission of unstamped instrument required to be stamped.
See- Etim vs. Ekpe (1983) NSCC Page 86;
– Igbdim vs. Obianke (1976) 9-10 S.C. Report Page 108.

It is also the law, in the latter case, where a party fails to object to the admission of an inadmissible evidence at the trial, he cannot be allowed to raise an objection at the appeal stage, unless the evidence was absolutely legally inadmissible.In the instant case under consideration, the Appellant tendered in evidence, Exhibits Dl, E, F, G and H and they were admitted in evidence without any objection from the Respondent. The lower Court in declaring the said documents inadmissible hinged its reason on violation of the provisions of Section 111 and 112 of the Evidence Act. The lower court expunged the documents from the record on the ground that the conditions precedent for their admissibility were not complied with.
It should be noted that the expunged documents are admissible upon the fulfillment of certain conditions precedent.
The said Exhibits Dl, E, F, G and H fall squarely into the second category of inadmissible evidence i.e. documents which are inadmissible in law but upon fulfillment of certain conditions, parties may by consent admit them notwithstanding the condition not being fulfilled. See – Shittu vs. Fashawe (Supra).
That being the case, since the Respondent failed to object to the admission of the documents which are inadmissible evidence at the trial, it cannot be allowed to raise an objection at the appeal stage since the documents were not absolutely legally inadmissible. In other words where inadmissible evidence is tendered, it is the duty of the other Counsel to object immediately to the admissibility of such evidence. If however such party or Counsel fails to raise any objection as aforesaid, or consents to the admissibility of such document he cannot later complain about its admissibility, provided that evidence complained of is one which is admissible under certain conditions. See also the case of:-
– Okeke vs. Obidife (Supra).
Although the trial court may reject any evidence which has been wrongly admitted in evidence but this power can only be exercised in circumstances in which the document is by law absolutely inadmissible. See the case of:-
– Salau Olukade vs. Abolade Alade (1976) 10 NSCG Page 34.
In a similar situation as in this case, the Supreme Court in the case of I.B.W.A. vs. Imano Nig. Ltd. (supra) per Iguh JSC stated that:-
“In my view the learned trial Chief Jud ge having admitted Exhibit 5 in evidence by consent and without any objection to its admissibility and the said Exhibit 5 not being a document that was inadmissible in law in any event and in all circumstances, erred in law in expunging the same from the proceedings. I think also that the Court below was on sound ground when it overruled the said decision of the trial Court.”
Also in H.M.S. Ltd vs. First Bank (1991) S.C. Part II Page 26 at 42.
Wali JSC held among others that:-
“Where a document is admissible in civil proceedings under certain conditions and the same is admitted with procedural defect but without objection the appeal Court will not upset the trial Court’s decision solely on the ground of inadmissibility of such a document.”
Consequent upon the foregoing, it is my view that the learned trial Judge was wrong to have rejected and expunged Exhibits D1, E, F, G, and H since the Respondent did not object to its admissibility at the trial.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
ISSUE No.2
Whether the decisions of the High Court of the FCT contained in Exhibits D1, E, G and H could apply as Res Judicata or Estoppel so as to deprive the Court of Jurisdiction to entertain the matter.
It was submitted on behalf of the Appellant that the orders and decisions contained in Exhibits D1, E, G, and H created Estoppel between the Appellant and the Respondent.
The learned Counsel for the Appellant submitted that the Respondent even though not a party to the proceedings giving rise to Exhibits D1, E, G, and H is nevertheless bound by the same as they are privies to the Judgment Creditor who sold the land to it. He relied upon the case of:-
– Adone vs. Ikebudu (2001) 36 WRN 40-41.
He stated that the Respondent claimed to have bought the land at an auction sale conducted by the Deputy Sheriff of the High Court of FCT Abuja.
He also relied on:-
– Spencer Bower in his book titled The doctrine of Res Judicata, 1st Edition, Article 197 at Page 126.
He argued further Deputy Sheriff who levied execution is the agent of the Judgment Creditor.
He also relied on the case of:-
– Ogundiani vs. Araba (1977-78) NSCC Volume II Page 334.
He went further in his argument that the lower court departed from the pleadings as well as the evidence led by the parties thereof in arriving at its decision.
He submitted that the mere belief therefore that the order of the Court contained in Exhibits D1, E, G, and H are perverse will not prevent them from operating as an Estoppel.
He relied on the following cases:-
African Continental Seaways Ltd. vs. Nigeria Dredging Road and General Works Ltd. (1972) 5 S.C. Page 235 at 250;
– Okoli Ojiako vs. Onwmo Ogueze (1962) All NLR Page 58;
Agbogu vs. Agbogu (1995) 1 NWLR Page 67.
The learned Counsel for the Respondent on the other hand in his own submission stated that Exhibits D1, E, G, and H cannot legally apply as res judicata or estoppels so as to deprive the Court of Jurisdiction. To sustain a plea of res judicata as in this case, the party raising it must show the following:-
(a) That the parties are the same with the previous proceedings;
(b) That the issues are the same with the previous proceedings;
(c) That the subject matter are the same with the previous proceeding;
(d) That the previous suit was decided by a competent Court.
He relied on the following:-
– Ukusane vs. Ejumudo (2000) 15 NWLR Part 690 at 298;
– A.I.B. vs. Purification Tech Ltd. (2000) 10 NWLR Part 676 at 532;
– Ishie vs. Mowanso (2000) NWLR Part 684 Page 279;
– Ojiako vs. Ewuru (1995) NWLR Part 420 Page 460.
Learned Counsel for the Respondent finally urged this Court to hold that Res Judicata does not apply to this case.
In the case of:-
– Ukaegbu vs. Ugoji (1991) 6 NWLR (Part 196) Page 127 at 146, the Supreme Court defined Estoppel as:-
“…an admission of something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it. Estoppel prohibits a party from providing anything which contradicts his previous acts or declarations to the prejudice of a party who relying upon them has altered position.”

Also in Odjevwedje vs. Echannokpe (1987) 1 NWLR Part 52 Page 633 at 654 the Supreme Court stated the law that there are two kinds of estoppels as follows:-
“Now, there are two kinds of estoppel by record inter parties or per rem judicatam as it is generally known. The first is usually referred to as “cause of action estoppel” and it occurs where the cause of action is merged in the Judgment which is Transit in rem judicatam.
(See – King vs. Hoare (1844) 13 M&W. 495 at 504). Therefore on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final Judgment between the same parties, or their privies, who are litigating in the same subject-matter, there is an end of the matter. They are precluded from relitigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by the Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies) in these circumstances “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See
Outram vs. Morewood (1803) 3 East 346 Issue Estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.”

The Supreme Court held further:-
“However for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply that:-
(1) The same question must be for decision in both proceedings which means that the question for decision in the current suit must have been decided in the earlier proceeding.
(2) The decision relied upon to support the plea of issue Estoppel must be final.
(3) The parties must be same (which means that the parties involved in both proceedings must be the same per se or by their privies.)

The Supreme Court also considered the term privies in the case of:-
– Coker vs. Sanyaolu (1976) 9-10 S.C. Page 203 at 223 wherein IDIGBE JCA of blessed memory held among others that:-
“Privies are of three (3) classes and they are:-
(1) Privies in blood (as ancestor and heir);
(2) Privies in Law (as testator and executor intestate and administrator);
(3) Privies in estate … as Vendor and Purchaser Lessor and Lessee.
(See also 15 Halsbury Laws of England 3rd Edition Page 196 Article 372) and also the case of Oyerogba vs. Olaopa (1986) 2 C.A. Page 1 at 11.I will now apply the principle of res judicata to the present case under consideration.
The Appellant has contended that Orders and or decisions contained in Exhibits “D1” “E”, “G” and “H” created Estoppel between the Appellant and the Respondent.
Exhibit “D1” is a ruling on a motion for Stay of Execution dated the 28th day of July 1993 in Suit No. FCT/HC/M/316/93. The Application was between Mark Eze Ikoroha vs. Gazi Construction Co. Ltd & Others.
Exhibit “E” was a ruling between Mark Eze Ikoroha and Gazi Construction Ltd. The Ruling with suit No. FGT/HC/M/468/93 was delivered on 2nd day of November 1993.
Exhibit “G” was a Ruling dated 6th day of April 1998 in Suit No. FCT/HC/CV/44/86 in respect of an application brought by the Bill Construction Company Nig. Limited to arrest the Ruling between Mark Eze Ikoroha vs. Gazi Construction Co. Ltd. and also to be made a necessary party. The application was dismissed.
Exhibit “H” was a Ruling dated 6th day of April 1998 which discharged the writ of attachment on the land in dispute. It was between Mark Eze Ikoroha vs. Gazi Construction Co. Limited.
A careful perusal of Exhibits “D1”, “E’, “G” and “H” would reveal that the question for determination in the present suit is quite different from the issues determined in these Exhibits. Furthermore the parties are not the same. And contrary to the submissions made on behalf of the Appellant that the Respondent is a privy to the Judgments in Exhibits “D1”, “E”, “G” and “H”, it is my view that the Respondent in this Appeal cannot be referred to as a privy to Exhibits “D1”, “E”, “G” and “H”. See Coker vs. Sanyaolu (Supra).
Consequent upon the foregoing it is my conclusion that Res judicata is not applicable to the claim of the Respondent at the lower Court.
This issue is resolved in favour of the Respondent against the Appellant.
ISSUE No.3
Whether the Court was right in setting aside either directly or indirectly previous and subsisting decisions and or orders made by a Court of competent jurisdiction.
The learned Counsel for the Appellant submitted that the trial Court acted without Jurisdiction in setting aside either directly or indirectly the previous and subsisting orders and decisions made by a Court of co-ordinate and competent jurisdiction. He relied on the following cases of:-
– Uku vs. Okumagba (2001) 41 WRN Page 133 at 150-152;
– N.I.M.B. Ltd. vs. Union Bank of Nigeria Ltd. (2004) 12 NWLR Part 888
– Akporue & Another vs. Okei (1973) 12 S.C. Page 137:
– National Insurance Corporation of Nigeria vs. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR Part 29 Page 697 at 707;
– Anannabu vs. Okafor (1976) 1 All NLR Page 205 at 207;
– Wimpey (Nig) Ltd. and Another vs. Alhaji Balogun (1986) 3 NWLR
Part 28 Page 324 at 339;
– Obiekwuite vs. Z. Umumuma & Others (1957) 2 F.S.G. Page 70;
– Okorodudu vs. Ajuetami (1967) NMLR Page 282 at 285.
He submitted further that to sustain a plea of Res Judicata the party pleading it must satisfy the following conditions:-
(1) That the parties or their privies are the same.
(2) That the issue and subject matter are the same in the previous suit as in the present suit.
(3) That the adjudication in the previous case must have been given by a
Court of competence.
(4)That the previous decision must have finally decided the issues between the parties.
He relied on the case of:-
– Chinwendu vs. Mbamali (1990) 3-4 S.C. Page 31.
The learned Counsel for the Appellant submitted that the lower court placed little or no reliance on the Exhibits tendered before the Court. He therefore urged this Court to resolve the issue in favour of the Appellant.
The learned counsel for the Respondent submitted that Exhibits E, G and H do not prove that there was no sale of the Appellant’s land to the Respondent in execution of the Judgment. He went further in his submissions that Exhibit “G” which refused to join the Respondent to the suit and Exhibit “H” cannot bind the Respondent as he was not a party to the proceeding in Exhibits “E” and “G”.
He relied on the following cases:-
– UBA Plc vs. UCB (Nig) Ltd. (2005) 12 NWLR Part 939 Page 232;
– Jimoh vs. Oyeleye (2006) 15 NWLR Part 1002 Page 392;
– Awoniyi vs. Registered Trustees of Amorc (2000) 10 NWLR Part 676 Page 522.
The previous and subsisting decisions and/or orders made by the Court which the Appellant contended was being set aside either directly or indirectly are the decisions contained in Exhibit “E’, “G” and “H” among others.
– Exhibit “E” is an order of Court which was granted after the property in dispute had been sold to the Respondent by Public Auction which was published in the New Nigeria Newspaper of 19/7/93 i.e. Exhibit “C”
– Exhibit “H” was a Ruling delivered by the High Court on 6/4/95 setting aside the writ of attachment. This was also after the property now in dispute has been sold and interest in it transferred to the Respondent.
– Exhibit “G” was an order of Gwagwalada High Court which refused to join the Respondent to the proceedings.
The learned Counsel for the Appellant contended that plea of Res Judicata was made out at the lower Court. But as stated earlier in this judgment I do not agree with the submissions of the learned Counsel because the claim of the Plaintiff and the Counter Claim of the Defendant are quite different from the claims in Exhibits “D1” “E” “G” and “H”. The parties are also different.
In view of the foregoing, it could not be said that the plea of Res Judicata was made out in the case. And if that is the position, the lower Court was not Court was not bound to follow the decisions in Exhibits “D1′, ‘E’, “G” and “H”. Furthermore, Exhibits “E”, “G” and “H” did not prove that there was no sale to the Respondent. Also Exhibit “H” cannot bind the lower Court because even though it was an order which set aside the writ of attachment, it was a belated order. It was made after the property in dispute was sold and interest in it transferred to the Respondent. The Respondent was also not a party to the proceedings in Exhibits “G” and “E”.
In civil proceedings, a party against whom complaint is made must be made a party to the suit. The Court lacks Jurisdiction to give orders against a person not before it. See the following cases:-
– UBA Plc vs. UCB (Nig) Ltd. (Supra).
– Jimoh vs. Oyeleye (Supra).
In conclusion, it is my view that the lower Court did not set aside either directly or indirectly the previous decisions as claimed by learned Counsel for the Appellant. What the lower Court did was that it distinguished the said Exhibits in issue from the Respondent’s Claim.
ISSUE NO. 4
Whether the Respondent could acquire a valid interest in the land the subject matter of the suit during the pendency of a suit.
The Counsel for the Appellant in arguing this issue adopted his submissions on Issue No. 2 above.
It was submitted further on behalf of the Appellant that the Respondent cannot acquire a valid title in the land during the pendency of a suit.
He relied on the case of:-
– Bua vs. Dauda (2003) 43 WRN Page 1 at 20 or (2003) 13 NWLR Part 838 Page 657;
It was submitted further that the doctrine of Lis Pendens does not require that the purchaser must have any actual or constructive notice.
He relied on the case of:-
– Kigo (Nigeria) Ltd. vs. Holman Bros Nigeria & 1 other (1980) 5-7 S.C. Page 60.
He stated that the doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject matter of an action pending in Court during the pendency in Court of the action. He went further that in its application against any purchaser of such property the doctrine is not founded on the equitable doctrine of notice, actual or constructive, but upon the fact that the law does not allow to litigating parties or give to them, during the currency of the litigation involving any property (i.e. the property in dispute) so as to prejudice any of the litigating parties.
The learned Counsel for the Respondent submitted that there was no pending suit when the Respondent bought the Plot through a Public Auction. He referred to page 11 of Exhibit “C” where the High Court of Justice Abuja published the sale of Plot No. 505 at Wuse in Suit No. FCT/HC/CV/44/88 on the 19th day of July 1993. He went further that the Respondent bought the property on the 23rd day of July 1993 on an auction sale at the Abuja High Court premises as per Exhibits “A” and “B”.
It was also stated that when the Plot was sold there was no stay of Execution of the Judgment of the lower Court. He relied on the case of:-
– Race Auto Supply Ltd. vs. Akib (2001) 1 NWLR Part 695 at 463 at 470-471.
The learned Counsel for the Respondent argued further that the Appellant did not tender a certified true copy of the motion for stay of execution filed at the Court of Appeal or the ruling of the said Court on the application of the stay of execution of the Judgment. He contended that the effect of this is that apart from the appeal, there was no pending application at the Court of Appeal to stay execution.
The question to be answered at this stage is whether the Respondent could acquire a valid interest in the land the subject matter of this suit during the pendency of a suit.
It was submitted on behalf of the Appellant that the Respondent cannot acquire a valid title in the land during the pendency of a suit.
The doctrine of Lis Pendens affects a purchaser who buys property the subject matter of litigation during the currency of such litigation, not because he the purchaser is caught by the equitable doctrine of notice but because the law does not allow to litigants, rights in the property in dispute, so as to prejudice the opposite party, therefore during litigation nothing new should be introduced.
The Appellant contended that the Respondent knew about the appeal by the Appellant.
It was submitted on behalf of the Appellant that an appeal is in law a continuation of the prosecution of the original cause or matter which is the subject of the appeal.
The pertinent question at this juncture is was there a pending suit when the Respondent bought the said plot through a public auction?
A careful examination of Exhibit “C” at page 11 showed that a public auction notice of sale of Plot 505 at Wuse Re-Mark Eze Ikoroha vs. Gazi Construction Company Limited Case No. – FCT/HC/CV/44/86 was published by the New Nigerian Newspaper on 19th day of July 1993.
The Respondent bought the property on 23rd July 1993 at an auction sale as evidenced by Exhibits “A” and “B”.
It was contended by the Appellant that the Respondent knew about the appeal by the Appellant.
In Bua vs. Dauda (Supra) the conditions precedent to application of doctrine of lis pendens were stated as follows:-
(1)That at the time of the sale of the property, the suit regarding the dispute about the said property was already pending.
(2)That the action or lis was in respect of real property; it never applies to Personal Property.
(3) That the object of the action was to receive or assert title to a specific real property; that is to say an action in a subject matter adverse to the owner in respect of some substantive right, which is proprietary in nature, and
(4)That the other party had been served with the originating process in the Pending action.
The property in dispute was bought at a public auction on 23rd July 1993.
Exhibit “E” which adjourned the case sine die pending the appeal at court of Appeal Kaduna was made on 2/11/93.
Exhibit “F” the enrolment of order at the court of Appeal Kaduna has as appeal No.-CA/K/54/94 and the particular order in Exhibit “F” was made on 28/11/95.
A careful examination of Exhibits “D1”, “E”, and “F” showed that when the Respondent bought the land in dispute at public auction on 23rd July 1993 there was no pending action in respect of the land in dispute.
Exhibit “D1” was made on 28/7/93
Exhibit “E” was made on 2/11/93
Exhibit “F” has appeal No. CA/K/54/94
All the Exhibits mentioned above came in after the Respondent bought the said land.
If the Appellant was sure of himself about his contention that there was a pending suit when the auction sale was concluded, he should have tendered in evidence Certified True Copies of the Notice of Appeal in Kaduna, the pending motion for stay of Execution at the Court of Appeal or the Ruling of the Motion for Stay of Execution at the lower Court to come to conclusion that there was a pending appeal and motion for Stay of Execution at the Court of Appeal.
It is my view that before the Court can bring to bear its full weight of disciplinary power on an erring party who levied execution while application for stay of execution is pending, there must be clear evidence that the Judgment creditor was well aware that the Judgment debtor has filed an application at the Court of Appeal for Stay of Execution.
In the case under consideration there is no evidence that the Respondent was aware that the Appellant has filed a Notice of Appeal and an Application for Stay of Execution at the Court of Appeal. See:-
– IBWA Ltd. vs. Pavex Int. Co. (Nig) Ltd. (Supra)
Consequent upon the foregoing, it is my view that no action was pending when the Respondent bought the land in dispute at a public auction on 23rd day of July 1993. The question whether the Respondent could acquire a valid interest in the land the subject matter of the suit during the pendency of a suit does not arise.
This issue No. 4 is therefore resolved in favour of the Respondent and against the Appellant.
ISSUE NO.5
Whether the Respondent proved that there was a valid sale of the land the subject matter of this suit to it in an auction sale.
It was submitted on behalf of the Appellant that the Respondent failed to prove that there was a valid sale of the land to it.
The learned Counsel for the Appellant contended that Exhibit “A” which the Court admitted as a purchase receipt issued by the Deputy Sheriff of the Court, for purchase of the land is not a receipt, it is rather an entry in bailiff’s sales book. He said that the document was wrongly admitted despite the objection that it was not certified in accordance with Section 111 of the Evidence Act. It was further contended that Exhibit “C” was inadmissible by virtue of Section 97, 111 and 112 of the Evidence Act being a public document.
He relied on the case of:-
– Nwabuoku vs. Onwordi (2006) 5 S.G. Part 111 Page 103 at 114-155.
He went further in his submissions that Exhibit “E” did not conform with the requirement of the law for its admissibility. He relied on the following cases:-
– Ike vs. Ibekundu (1985) HCNLR Page 522;
– Minister of Lands Western Nigeria vs. Azikiwe (1969) 16 NSCC Page 31 at 38;
– Anatogu vs. Iweka II (Supra);
– Oba Okiki II vs. Jagun (Supra).
The learned Counsel for the Appellant submitted that the lower Court was wrong to have made out a case for the Respondent. He went further that the decision of the Court that there had been an undue delay by the Appellant in bringing the alternative prayer in its counter claim was erroneous and insupportable.
He finally urged this Court to resolve this issue in favour of the Appellant.
In his response, the learned Counsel for the Respondent submitted that the Respondent has proved at the lower Court that there was a valid sale of the land by public auction.
He relied on Exhibits “A”, “B” and “C”. He stated that Exhibit “A” was the receipt issued to the Respondent when he purchased the land and as such that it could not have been certified in accordance with Section 111 of the Evidence Act.
He relied on the case of:-
– Okiki vs. Jagun (Supra).
The learned Counsel for the Respondent stated that issues were joined with the Appellant on whether the Respondent’s purchase of the plot has never been declared void by any Court of competent jurisdiction at paragraph 7 of the Plaintiff’s Amended Statement of Claim at page 19 of the record. He referred to pages 13-14 of the record of proceedings which contains the Respondent’s reply to Appellant’s Counter Claim at paragraph 8. The Respondent averred that the Appellant’s application to set the auction sale aside is stature barred.
The learned Counsel referred to Sections 47 and 48 of the Sheriffs and Civil Process Law Cap. 47 Laws of the Federation 1990 and he submitted that the lower Court did not make any case for the Respondent because the Appellant unduly delayed bringing a Counter Claim to challenge the sale and failure to challenge the sale within 21 days of sale rendered the absolute and irrevocable.
He relied on the following cases:-
– Haward Int. School Ltd. vs. Minna Prog. Vent. Nig. No. 2 (2005) 1 NWLR Part 008 Page 574 at 600-604;
– Kachalla vs. Banki (2001) 10 NWLR Part 721 Page 442 at 464-465;
– Saleh vs. Monguno (2003) 1 NWLR Part 801 Page 221;
– TBN Plc vs. Fasher (2000) 6 NWLR Part 662 Page 573 at 584;
– Apkununu vs. Bcakarr Overseas (2000) 12 NWLR Part 682 Page 552.
He finally urged this Court to hold that the Respondent has proved that there was a valid sale of the Appellant’s land to it by virtue of Exhibits “A” and “B” which was not set aside within 21 days of purchase.
The issue is whether the Respondent proved that there was a valid sale of the land the subject matter of this suit to it by an auction sale.
The learned Counsel for the Appellant contended that the Respondent failed to prove that there was a valid sale of the land to it.
The back bone of the Respondent’s case are Exhibits “A”, “B” and “C”. Exhibits “A” and “B” were issued by one M. S. Umar, Deputy Chief Registrar. The pertinent question here is that are Exhibits “A” and “B” private or public documents?
By virtue of Section 109 (a) (II) of the Evidence Act documents forming acts or records of acts of official bodies and public officers are public documents. In the instant case Exhibits “A” and “B” issued by M. S. Umar, Deputy Chief Registrar was issued in the cause of his official duty. The said documents i.e. Exhibits “A” and “B” are therefore public documents.
The learned Counsel for the Appellant contended that the documents were wrongly admitted in evidence despite objection by Appellant’s Counsel, that the documents were not certified in accordance with Section 111 of the Evidence Act.
Section 111 of the Evidence Act provides for the Certification of Public Documents. This is done by a Certificate written at the foot of a copy of the document that it is a true copy of such document or part thereof as the case may be. Such certificate must be dated and subscribed by a public officer in custody of the document with his name and his official title with a seal if the officer is entitled in law to make use of a seal. By Section 112 of the Act, only such Certified Copy or copies would be produced in proof of the contents of the public document.
I have carefully looked at Exhibits “A” and “B”, and I do not see any Certificate as provided in Section 111 of the Evidence Act. It would be recalled that the admissibility of Exhibits “A’ and “B” were objected to at the lower Court but it was wrongly admitted. See the following cases:-
– Minister of Lands, Western Nigeria vs. Azikiwe (1969) (Supra);
– Anatogu vs. Iweka II (Supra);
– Okiki II vs. Jagun (Supra).
The learned Counsel for the Respondent admitted that Exhibits “A” and “B” were not certified but that they were evidence of the fact that the Respondent actually paid the sum of One Million Naira for the purchase of the land.
There is no dispute that the Respondent paid One Million Naira for the purchase of the land in dispute. But the law is that the usual method of proving a public document is by the production of a certified copy of the document. Once the copy is signed and certified as in Section 110, it becomes admissible on its mere production.In this case under consideration since Exhibits “A” and “B” were not certified, it is my view that the lower Court should not have admitted them.
The learned Counsel for the Respondent has raised a fundamental issue in his reference to Sections 47 and 48 of the Sheriffs and Civil Process Act Cap.47 Laws of the Federation of Nigeria 1990.
By virtue of Section 47 of the Sheriff and Civil Process Act, any application to set aside any sale of immovable property in execution of a Judgment of Court must be made within 21 days of the sale. Application may be made for the Court to set aside the sale on ground of any material irregularity in the conduct of the sale. By Section 48, if no application is brought as mentioned in Section 47, the sale shall become absolute, the action shall become time barred if same is not brought within 21 days of the purchase.
See the following cases:-
– Haward Int. School Ltd vs. Minna Prog. Vent. Nig. No 2 (Supra);
– Kachalla vs. Banki (Supra);
– Saleh vs. Monguno (Supra).
It would be recalled that the Respondent bought the land in dispute by public auction on 23rd day of July 1993.
The Appellant did not file a Counter-Claim to set aside the said sale until 3/6/97. The Appellant’s Statement of Defence and Counter-Claim was dated 29/5/97 and filed on 3/6/97. (See pages 10 and 11 of the record of appeal).
It is clear from the above that the Appellant unduly delayed in bringing an action to set aside the sale.
The issue of lack of Certification of Exhibits “A” and “B” could have been raised if the Appellant had challenged the sale within 21 days of the purchase.
Since the Appellant has failed to bring an application to set aside the sale of his properties within 21 days, therefore the sale became absolute within the provision of Section 48 of the Sheriffs and Civil Process Act.
In conclusion, by virtue of the fact that Exhibits “A” and “B” were not set aside within 21 days of purchase, the sale of the land in dispute to the
Respondent became absolute within the provision of Section 48 of the Sheriffs and Civil Process Act.
This issue No. 5 is resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 6
Whether the learned trial Judge was right in entering Judgment on the facts in favour of the Respondent and dismissing the Appellant’s Counter-Claim without properly evaluating the evidence led by both parties in the matter.
The learned Counsel for the Appellant contended that there was no sale of the land in dispute. He referred to the testimonies of “DW1” and “DW2”.
He also referred to Exhibit “H”.
He stated that the action of the Respondent was for a declaration of title to land and that it would succeed on the strength of its own case and not on the weakness of the defence. He went further that the lower Court dwelt on the perceived weakness of the case of the Appellant instead of the strength of the Respondent’s case.
He submitted that the finding of the Court was not supported by evidence led as issues were not joined on the same.
He relied on the case of:-
– Kode vs. Yusuf (2001) 5 NSOQR Page 376 at 402.
It was also contended that the evidence of the Appellant’s witness with respect to the destruction of their material on the land consequent upon the trespass by the Respondent was neither challenged nor controverted and that the Court failed to make any finding on the evidence.
It was further submitted that if the trial Court had evaluated the Appellant’s evidence in its entirety, ownership of the land would not have been granted in favour of the Respondent as it did.
He relied on the case of:-
– UNIC vs. UCIC Ltd. (1999) 3 NWLR Part 593 Page 17 at 27.
He finally urged this Court to resolve this issue in favour of the Appellant.
In his own response, the learned Counsel for the Respondent submitted that the learned trial Judge was right to have dismissed the Counter Claim of the Appellant and entered Judgment for the Respondent.
He contended that the issue of trespass does not arise as the Respondent per Exhibit “A” and “B” is the bonafide and legal owner of the plot having purchased the plot by public auction at the premises of the Abuja High Court of Justice pursuant to publication in Exhibit “C” i.e. the New Nigerian Newspaper.
He went further that the lower Court gave a full and dispassionate consideration to all the issues canvassed before it, as it is the duty of the Court to evaluate all the evidence before it and qualify them. He stated that evaluation involves a reasonable belief of all the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other and these must be on record.
He relied on the cases of:-
– Oduwole vs. Aina (2001) 17 NWLR Part 741 Page 1;
– Akintola vs. Balogun (2000) 1 NWLR Part 642 Page 53.
The contention of the Appellant was that there was no sale of the land in dispute to the Respondent. But before the lower Court arrived at its decision, it considered the evidence of the DW1 and DW2 that there was no sale of the land in dispute to the Respondent alongside with the evidence put forward by the Respondent that there was a sale of the land of the Appellant by public auction, as same was published as per Exhibit “C” and when the Respondent bought the land at the High Court of Justice Abuja it was issued with Exhibits “A” and “B” as evidence of the sale of the said land.
The issue of the admissibility of the said Exhibits “A” and “B” had been dealt with earlier in this Judgment and I do not wish to repeat myself on it.
The issue of how the trial Judge wrongfully rejected and expunged Exhibits D1, E, G and H tendered by the Appellant was also addressed earlier in this Judgment where it was held that the trial Court was wrong to have rejected the said exhibits.
But that notwithstanding, the said Exhibits “D1”, “E”, “G” and “H” did not declare the sale of the land in dispute void. Apart from that the Respondent was not a party to me said Exhibits “D1”, “E”, “G” and “H” so as to make the decisions in them to be binding on it. It should be appreciated that the decisions in the said Exhibits were granted after the sale of the land had been concluded.
The grouse of the Appellant that Exhibits “A” and “B” were not legally admissible as public documents was well founded but the Appellant failed to take steps within 21 days as stipulated under the Sheriffs and Civil Process Act to set aside the said sale. The Appellant coming with a Counter-Claim to set aside the said sale after 21 days of the purchase is belated and statute barred.
The Appellant counter-claimed among others Special Damages of N300,000.00 being the cost of materials removed from the site. But no receipt was tendered in evidence to support the said claim. (See Evidence of DW1 on Page 65 of the Record of Appeal).
The lower Court considered the evidence called by both parties. The said evidence adduced by the parties were properly analysed before probative value were given to them. The court was right to have dismissed the Counter-Claim of the Appellant and entered Judgment for the Respondent.
This Court can only interfere with the findings and evaluation of evidence of the lower Court where such findings are not supported by evidence on the record and the Court failed to analyse the evidence on both sides before arriving at its decision.
See the case of:-
– B.O.N. Ltd. vs. Babatunde (2002) 7 NWLR Part 766 Page 389 at 398.
Consequent upon the foregoing, it is my view that the findings of the lower Court were supported by evidence and the Court was therefore right in entering Judgment in favour of the Respondent.
This issue No. 6 is also resolved in favour of the Respondent.
In the final analysis, having resolved five out of the six issues for determination against the Appellant, this appeal succeeded in part.
There shall be no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A: My learned brother Bada, JCA has very ably and comprehensively dealt with and resolved all the six (6) issues submitted for determination in the appeal in his draft of the lead judgment which I read before today. All the views expressed therein represent the position of the law on the issues and so are the same with mine. Consequently, I agree with the conclusions on all the issues and that the appeal for all the reasons set out in the lead judgment which I adopt, lacks merit. It is dismissed by me in all the terms of the lead judgment.

REGINA OBIAGELI NWODO, J.C.A: I have read the Judgment of my learned brother, BADA, JCA just delivered and I agree with the reasoning contained therein and the conclusion that this appeal succeeds in part.
The evaluation of evidence is primarily the function of the trial Court. It is only where and when it fails to evaluate such evidence properly that an appellate Court can intervene. Where the trial Court as in the present case revaluated the evidence and appraised the facts justifiably this Court will not substitute its own views.
The Court below rightly entered Judgment for the Respondent.
This appeal succeeds in part and I make no order as to cost.

Appearances

EVEREST ANYANWU with him is N. E. NNANJIFor Appellant

AND

E. I. ESEME with him are LINUS AKWOJI and E. EMMANUELFor Respondent