JIMA PROPERTIES LTD v. STARUCCI INTERIORS LTD & ANOR
(2022)LCN/16942(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Monday, September 26, 2022
CA/MK/33/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
JIMA PROPERTIES LIMITED APPELANT(S)
And
1. STARUCCI INTERIORS LIMITED 2. STELLA BASSEY RESPONDENT(S)
RATIO
WHETHER OR NOT A BREACH OF A PARTY’S CONSTITUTIONALLY GUARANTEED RIGHT TO FAIR HEARING, WHERE ESTABLISHED, AFFECTS THE ENTIRE PROCEEDINGS
Admittedly, the trite and unassailable position of the law is that no one should be denied his constitutionally guaranteed right to fair hearing. There has been stern warning by the apex Court in a plethora of authorities including Nwabueze vs. The People of Lagos State (2018)11 NWLR Pt. 1630, pg. 201 at 214, paras. E-G to the effect that:
“Breach of a party’s constitutionally guaranteed right to fair hearing, where established, affects the entire proceedings thereby rendering the decision of the Court null and void. Cases attesting to this principle are legion. In F.R.N. vs. Akubueze (2010) LPELR-1272(SC), (2010) 17 NWLR Pt. 1223, pg. 525 at 544, paras. E-F this Court restated the principle thus:
It is the law that once it is duly established that the right of fair hearing as entrenched under Section 33 of the Constitution has been breached in judicial proceeding, its breach vitiates the entire proceedings. Therefore, when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal…” PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A COURT HEARING AN INTERLOCUTORY APPLICATION CAN COMMENT OR DETERMINE ANY OF THE ISSUES IN DISPUTE IN THE SUBSTANTIVE CASE
Obviously, the learned trial Judge went too far in the above ruling, having waded into the substantive issue of ownership of the disputed land, at the interlocutory stage. The apex Court deprecated the act of straying into substantive issues at the interlocutory stage of any action in a plethora of cases including the authority of Akinrimisi vs. Maersk (Nig.) Ltd. (2013) 10 NWLR Pt. 1361, pg. 73 at 86, paras. A – D where it held thus:
“However, it must be pointed out that this Court in a long line of cases has repeatedly warned that a Court hearing an interlocutory application should refrain from commenting or determining any of the issues in dispute in the substantive case…”
See further the authorities of University Press Ltd. vs. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR Pt.654, pg. 584, Odumeru vs. Adenuga(2000) 4 NWLRPt.652, pg. 224, Okpokiri vs. Okpokiri (2000) 8 NWLR, Hashim Ogunsola vs. Usman(2002)14NWLR Pt.788, pg. 636, North-South Petroleum (Nig.) Ltd. vs. FGN (2002) 17 NWLR Pt. 797, pg. 639, and Prince Abdul Ganiyu Adedolapo vs. The Military Administrator of Ondo State (2005) LPELR-7538(CA). PER JOMBO-OFO, J.C.A.
THE GUIDING PRINCIPLES OF LAW REGARDING APPLICATIONS FOR STAY OF PROCEEDINGS
In the first instance, it is necessary to state some veritable position of the law regarding applications for stay of proceedings before the trial Court. In the authority of Agu vs. Commissioner of Police (2018) All FWLR Pt. 937, pg. 1632 at 1658 – 1659, per Ogunwumiju, JCA., (as she then was) it was held as follows:
“… grant of a stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation to its logical conclusion, the basis of the substantive merit of his case. A stay of proceedings should not be granted unless the proceedings in the interest of justice ought not to be allowed to continue. Where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of an appeal. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceedings in the trial Court, prudence dictates that a stay of proceedings be granted. In granting an order for stay of proceedings, the Court should be guided primarily by the necessity to be fair to both parties. A stay of proceedings can only be granted by the Court when there is no other option open to it. In the instant case my lord, where grant of stay of proceedings will not do justice to all parties, the lower Court rightly dismissed the appellant’s application for stay of proceedings. (Underlining supplied).
Furthermore, in the case of FRN vs. Dairo (2015) All FWLR Pt. 776, pg. 486, 522, paras. B-F, the apex Court per our revered Nweze, JSC., had this to say:
“… before concluding this judgment, we observe that the interlocutory appeal of the 1st respondent against the ruling of the trial Court epitomizes the frustration of trials at first instance, which our adversarial system of criminal justice unwittingly perpetuates. It actually speaks ill of our criminal jurisprudence… We found that the 1st respondent could not exercise a little restraint even when the trial Court was emphatic that though it found in favour of the admissibility of the said statement. The weight to be attached to it is a matter for determination at the conclusion of this trial. Prudence therefore ought to have dictated to him to await the conclusion of this trial. Henceforth, he would if dissatisfied with the judgment in the substantive case, proceed to appeal against it. We shall continue to look with askance at situations such as those engendered by the said interlocutory appeal, which occasion the frustration of proceedings at trial Courts. They should no longer be condoned or broached. They scandalize the integrity of the judicial process.” PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is coming in two parts encompassing an interlocutory appeal and a substantive appeal. I shall commence with the interlocutory appeal which is consequent upon the ruling of the High Court of Justice Nasarawa State, sitting in Lafia in Suit No. NSD/MG16/2016, (hereafter the lower/trial Court) presided over by Hon. Justice Simon O. Aboki, J., and delivered 18th November, 2019, wherein he refused the application of the plaintiff/applicant.
BRIEF STATEMENT OF FACTS
In the course of hearing the evidence of the 2nd defence witness (DW2) at the lower Court, the defendants who before this Court are the respondents sought to tender a document through the said DW2, who was not the maker. Learned counsel to the plaintiff/appellant objected arguing that the document which is couched in the 1st person singular, is not sought to be tendered through Abubakar Sadau and that the foundation required under Section 83 of the Evidence Act to admit the document in evidence was not laid. He relied on the authority of Nimasa vs. Hensmor Nig. Ltd. (2015) 5 NWLR Pt. 1452, pg. 278, 313, paras.
B-E. Learned counsel for the defendants reacted by submitting that the hallmark of admissibility is relevance, that the document sought to be tendered is relevant and that the document speaks for itself. See Eze vs. Akerele (2019) All FWLR Pt. 974, pg. 679, ratio 3. The learned trial Judge in his considered bench ruling overruled the objection and allowed the document in evidence as Exhibit 13. (See page 419 of the main record of appeal).
Subsequently, the plaintiff/objector by way of Motion on Notice No. NSD/LF52M/2019 filed 24th October, 2019 sought the following orders from the lower Court:
“a) An order of this Honourable Court on the Defendants/Respondents to produce Abubakar Sadua, the author of Exhibit 13, for cross-examination on the exhibit by the Plaintiff/Applicant.
b) An order of this Honourable Court recalling the PW1, Salihu Tanko for cross-examination on Exhibit 13 by the Plaintiff/Applicant. (See pages 343 – 351 of the record of appeal).
The defendants/respondents in opposing the motion filed a counter-affidavit of 7 paragraphs on 30th October, 2019. (See pages 352 – 356 of the record of appeal). On 18th November, 2019, the learned lower Court in his considered ruling dismissed the application. (See pages 433 – 437 of the record of appeal).
Aggrieved by the said ruling of the lower Court, the plaintiff/applicant/appellant filed its interlocutory appeal vide the Notice of Appeal on 27th November, 2019 challenging the propriety of the ruling. (See pages 454 – 459 of the record of appeal).
The appellant’s brief of argument in the interlocutory appeal is presumably settled by A. A. Machika, Esq., while the reply brief in the interlocutory appeal was settled by Emmanuel S. Onoja, Esq. The 1st and 2nd respondents’ brief in the interlocutory appeal was presumably settled by Da. David Okokon, Esq.
The appellant distilled the following 3 issues for determination in this interlocutory appeal:
1. Whether the trial Court’s refusal to allow the appellant cross-examine the author of Exhibit 13, who was available but not called as a witness, amounts to denial of the appellants’ right to fair hearing? (Tied to Ground 1).
2. Whether the trial Court had, by its pronouncement in the interlocutory ruling, finally decided the suit against the appellant? (Tied to Ground 2).
3. Whether the trial Court was not prejudicial to the appellant in its interlocutory ruling? (Tied to Grounds 3, 4 and 5).
On the side of the respondents, they distilled their own issues as follows for determination:
a) Whether by the evidence of PW1 who sold the land to appellant and the content of Exhibit 13, it was necessary for the trial Court to compel the respondents to call Alhaji Abubakar Sadua for cross-examination. (Ground 1 of the Notice of Appeal).
b) Whether from the evidence elicited from PW1 during cross-examination and the decision of the trial Court dismissing the appellant’s Motion No. NSD/LF52M/2020. (sic). The trial Court was wrong to have held that the issue before the Court is authority to sell the said land and not the determination of title/ownership of the said land. (Ground 2 Notice of Appeal).
I think that the issues donated by the appellant are quite embracing and better suited for the determination of this interlocutory appeal. I shall thus adopt them and they are so adopted for purposes of determining the interlocutory appeal.
ISSUE 1 (ONE)
Whether the trial Court’s refusal to allow the appellant cross-examine the author of Exhibit 13, who was available but not called as a witness, amounts to denial of the appellants’ right to fair hearing?
The appellant upon answering this issue in the affirmative referred the Court to paragraphs. 10, 11, 15, 16, 23 and 24 of the DW2’s Sworn Deposition/Averments contained at pages 43 – 45 of the record of appeal. Learned counsel for the appellant argued that despite relying heavily on Alhaji Abubakar Sadau, the defendants/respondents did not bring him before the Court as a witness to tender whatever document they wanted him to. Appellant canvassed that it was in order to bring out the clear picture of the transactions, and the contradictions between the testimonies of PW1, DW2 and the so-called ‘Land Agreements’ allegedly executed by the said Alhaji Abubakar Sadau, who had never met DW2, as she stated in her sworn deposition highlighted above, that caused the appellant to apply to the trial Court for an order on the defendants to produce the said Abubakar Sadua and also the PW1 for cross-examination on the content of Exhibit 13.
See pages 433 – 437 of the record of appeal.
Appellant went further to submit that the trial Court’s dismissal of the appellant’s application for cross-examination was a violation of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See Ifeanyi Peterkin Okereke & Anor vs. Ibe & Ors (2008) LPELR-4714(CA) and Ogolo vs. Fubara (2003) 11 NWLR Pt. 831, pg. 231, 262, B-C. Appellant added that denial to fair hearing in any proceedings renders such proceedings a nullity no matter how well conducted. See Nwabueze vs. The People of Lagos State (2018) 11 NWLR Pt. 1630, pg. 201 at 214, paras. E-G.
Appellant urged on us to resolve this issue in the affirmative and allow the appeal.
ISSUE 2 (TWO)
Whether the trial Court had, by its pronouncement in the interlocutory ruling, finally decided the suit against the appellant?
Learned counsel for the appellant referred to the finding of the lower trial Court as can be found at pages 436 437, last five lines and first two lines respectively and submitted that by the finding, the learned lower Court had finally disposed of the suit against the appellant at the interlocutory stage. See also lines 16-19 of page 437 of the record of appeal. See Orji vs. Zaria Industries Ltd (1992) 1 NWLR Pt. 216, pg. 124, (1992) LPELR-2768(SC), per Wali, JSC at pg. 23-24, paras. F – A. Counsel urged for a resolution of issue 2 (two) in the affirmative.
ISSUE 3 (THREE)
Whether the trial Court was not prejudicial to the appellant in its interlocutory ruling?
Again, the appellant reacts to this issue in the affirmative whilst referring the Court to the findings of the trial Court in the interlocutory application and submitting that the findings are unequivocal, conclusive, partial, prejudicial and adversarial to the appellant/applicant. See for instance last paragraph of page 435 to the first paragraph of page 436. Counsel contended that the trial Court in the instances descended into the arena against the appellant, contrary to its avowed position of impartiality, thereby breaching the twin pillars of natural justice of audi alteram patem and nemo judex in causa sua, encapsulated in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. See also the case of Pollyn vs. Miejene (2012) 14 NWLR Pt. 1321, pg. 567 at 580, paras. E – G.
Coming to the respondents’ reaction, I intend to pick only the submissions of learned counsel for the respondents which I consider relevant to the interlocutory application. They include his contention that the authorities of Ifeanyi Peter Kin Okereke & Anor vs. Ube (sic) & Ors. (supra) and Ogolo vs. Fubara (supra) cited and relied upon by the appellant are not in all fores with the instant case. On who has the right to choose the witness to call in a case, the learned counsel for the respondents cited the authorities of Etisi vs. State (2018) All FWLR, Pt. 920, pg. 33, 70-71, per Barka, JCA., Galadima vs. State (2018) All FWLR, Pt. 944, pg. 663 at 698, para. B., per Ariwoola, JSC., and MTN Communications Ltd. vs. Amadi (2013) All FWLR, Pt. 670, pg. 1329 at 1348, paras. C-D. Counsel contended that Exhibit 13 tendered by DW2 was signed by DW2 and that the learned trial Judge rightly held that the said Exhibit 13 was tendered by its maker and therefore not hearsay as erroneously contended by the appellant.
Learned counsel for the respondents also canvassed that upon admitted facts that the ownership of the land is not in issue and that being the case, there was no need calling the PW1 or any other person to be cross-examined on Exhibit 13 which is the land agreement and Alhaji Abubakar Sadau, the person from whom the land was bought from. Counsel urged on us to resolve that considering the evidence of PW1 that the lower Court was right in refusing to grant the appellant’s application to recall the PW1. He submitted with “Pentecostal fervency and episcopal insight” that the dismissal of Motion No. NSD/LF52M/2019 by the trial Court was in tandem with the law and therefore justified in best interest of justice. Counsel urged on us to uphold the decision and dismiss this appeal with punitive cost for lacking in merit.
In his reply on points of law, Emmanuel S. Onoja, Esq. of counsel for the appellant went on to emphasize the fact that the learned trial Judge made comments that are prejudicial to the rights of the appellant in the substantive suit. See the case of Nabore Properties Ltd vs. Peace-Cover (Nig.) Ltd. (2015) 2 NWLR 286 at 322, paras. D-E. Appellant urged on us to set aside the ruling of the lower Court and allow the appeal. Appellant further canvassed that any issue for determination not related to the grounds of appeal is incompetent; that in the instant appeal, the issues for determination formulated by the respondents are not related to the grounds of appeal and thus should be discountenanced. See Nabore Properties Ltd. vs. Peace-Cover (Nig.) Ltd (supra) at 303, paras. E-F. Appellant urged that we struck out the issues formulated by the respondents for being alien to the grounds of appeal before this Court.
RESOLUTION OF THE INTERLOCUTORY APPEAL
I must first of all make the observation that the learned counsel for the respondents brought in and considered irrelevant issues in this interlocutory application. He mixed up issues that are meat and relevant only to the substantive appeal with those that relate to the interlocutory application. Courts are warned to be cautious not to decide issues relating to or likely to arise in the substantive or main appeal at the interlocutory stage. I was in the circumstances and in the interest of justice constrained to sieve and pick from his submissions those I considered relevant and material to the interlocutory appeal.
Be that as it may, and while resolving the issue whether the trial Court’s refusal to allow the appellant cross-examine the author of Exhibit 13, who was available but not called as a witness, amounts to denial of the appellants’ right to fair hearing – I need to point out that it is common ground that in the course of taking the evidence of the DW2, Stella Bassey Udoh, the defendants/respondents sought to tender a document through her, though she was not the maker of the said document. The learned counsel for the plaintiff/appellant objected on the grounds that no foundation was laid for its admissibility through the said DW2 and contrary to Section 83(4) of the Evidence Act. The objection was however, overruled by the learned trial Judge and the document was admitted and marked Exhibit 13.
Subsequently, the appellant applied by way of Motion on Notice for an order of the trial Court for the defendants/respondents to produce the purported maker of Exhibit 13, one Abubakar Sadua as well as an order to recall PW1, Salihu Tanko, for purposes of having both of them cross-examined on the content of the said Exhibit 13. The application was dismissed, hence this interlocutory appeal.
The learned counsel for the appellant canvassed strenuously that the dismissal of the application to recall the PW1 and also for the respondents to call Alhaji Abubakar Sadau for them to be cross-examined on the content of Exhibit 13 amounted to a violation of the appellant’s right to fair hearing as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
Admittedly, the trite and unassailable position of the law is that no one should be denied his constitutionally guaranteed right to fair hearing. There has been stern warning by the apex Court in a plethora of authorities including Nwabueze vs. The People of Lagos State (2018)11 NWLR Pt. 1630, pg. 201 at 214, paras. E-G to the effect that:
“Breach of a party’s constitutionally guaranteed right to fair hearing, where established, affects the entire proceedings thereby rendering the decision of the Court null and void. Cases attesting to this principle are legion. In F.R.N. vs. Akubueze (2010) LPELR-1272(SC), (2010) 17 NWLR Pt. 1223, pg. 525 at 544, paras. E-F this Court restated the principle thus:
It is the law that once it is duly established that the right of fair hearing as entrenched under Section 33 of the Constitution has been breached in judicial proceeding, its breach vitiates the entire proceedings. Therefore, when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal…”
The appellant sought for an order to compel the respondents to invite Alhaji Abubakar Sadau, who was not a witness, to come on board for him to be cross-examined on Exhibit 13. This Court in the case of Etisi vs. State (2018) All FWLR Pt. 920, pg. 33, 70-71, per Barka, JCA., enunciated the position of the law thus:
“The law does not impose a duty to call all the persons listed or not listed as witnesses,……The discretion of the number of witnesses to be called is entirely that of the prosecution. (Underlining mine for emphasis).
The apex Court affirmed this principle in the case of Galadima vs. State All FWLR Pt. 944, pg.663 at 698, para. B, when it stated inter alia:
“The defence is not to determine the number of witnesses the prosecution will call to testify in Court.”
Furthermore, in MTN Communications Ltd vs. Amadi (2013) All FWLR Pt. 670, pg. 1329 at 1348, paras. C-D, the Court held that:
“A party is not under any compulsion or obligation to call any particular witness to prove his case. This accord with the age-old law that it is not necessary in the prosecution of a case, in order to discharge the onus of proof lying upon a party to call every available piece of evidence. It is enough if evidence called is sufficient to discharge the onus.”
In Ajibade vs. State (2012) All FWLR Pt. 610, pg. 1381 at 1398, para. C, Alagoa JCA., (as he then was) held that:
“The defence does not tell the prosecution who to field as witnesses in establishing its case.”
All the foregoing authorities and many more, show that it is within the absolute discretion of the party such as the respondents herein to field or not to field any witness at all. The adverse party is not in a position to force or compel or dictate to the other party who to bring to Court to come and aid the said adverse party. Where the appellant in the instant case considered the evidence of the said Alhaji Abubakar Sadua important, the said appellant is at liberty to apply to the trial Court for an order of subpoena ad testificandum as the case may be as opposed to seeking a compelling order of the Court to issue on the respondents to produce him in Court. I have not found the respondents to be under any legal obligation to produce Alhaji Abubakar Sadua or any person at all for purposes of affording the appellant the opportunity to cross-examine such person.
Regarding the application for the respondents to recall the PW1 so that the appellant can cross-examine him on the content of Exhibit 13 – I view that to be a tall order for the trial Court to make, more so when Exhibit 13 was not being tendered through the said PW1. As it stands, it is the DW2 through who Exhibit 13 was admitted in evidence at the trial Court that is in a position to answer questions by way of cross-examination on the said exhibit. The learned trial Court in the event was right in dismissing the application, as the appellant’s right to fair hearing in the circumstances was not in any way or form violated. Issue 1 (one) is resolved in favour of the respondents and against the appellant.
On issue 2 (two) which is whether the trial Court had, by its pronouncement in the interlocutory ruling, finally decided the suit against the appellant, the bone of contention is focused on the ruling of the trial Judge as can be found at pages 436 the last five lines and 437 lines 1-2. Therein the trial Court held as follows:
“As rightly submitted by the learned counsel for the respondents which I am in agreement with, the ownership of the land is not in contention rather what is in contention is the power of PW1 to sell the said land and if the ownership of the said four plots of land is not in issue, then the question of calling both the maker of Exhibit 13 and PW1 to be cross-examined on the said Exhibit 13 does not arise.”
And at same page 437, lines 16 – 19 of the record of appeal, the lower Court also held as follows:
“Moreso, and as held above, the transaction in Exhibit 13 has nothing to do with the applicant. What in my considered view the applicant should gear its energy in establishing their case is the validity or otherwise of the sale to it by Salihu Tanko.”
Obviously, the learned trial Judge went too far in the above ruling, having waded into the substantive issue of ownership of the disputed land, at the interlocutory stage. The apex Court deprecated the act of straying into substantive issues at the interlocutory stage of any action in a plethora of cases including the authority of Akinrimisi vs. Maersk (Nig.) Ltd. (2013) 10 NWLR Pt. 1361, pg. 73 at 86, paras. A – D where it held thus:
“However, it must be pointed out that this Court in a long line of cases has repeatedly warned that a Court hearing an interlocutory application should refrain from commenting or determining any of the issues in dispute in the substantive case…”
See further the authorities of University Press Ltd. vs. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR Pt.654, pg. 584, Odumeru vs. Adenuga(2000) 4 NWLRPt.652, pg. 224, Okpokiri vs. Okpokiri (2000) 8 NWLR, Hashim Ogunsola vs. Usman(2002)14NWLR Pt.788, pg. 636, North-South Petroleum (Nig.) Ltd. vs. FGN (2002) 17 NWLR Pt. 797, pg. 639, and Prince Abdul Ganiyu Adedolapo vs. The Military Administrator of Ondo State (2005) LPELR-7538(CA).
The afore-ruling of the trial Court wherein he jumped into conclusion touching on the substantive matter before it rather early in the proceedings and thus pre-judging same against the appellant is unsustainable and is hereby set aside. Issue 2 (two) is thus resolved in favour of the appellant and against the respondents.
Regarding issue 3 (three) which is whether the trial Court was not prejudicial to the appellant in its interlocutory ruling, I am of the view that given the outcome in issue 2 (two), that it has become clear that the interlocutory ruling of the trial Court was rather prejudicial to the appellant. Part of the offensive ruling of the learned trial Court reads as follows:
“Having perused the application before me and the affidavit evidence of the applicant (appellant) and that of the respondents and having considered the written submissions of both counsel, I will begin by saying that the issue of re-call of a witness has limited application in a criminal case talk more of in civil cases. Exhibit 13 admitted before this Honourable Court on the face of the value of it was an evidence of transaction between the 1st Respondent, Starucci Interiors Limited, represented by the 2nd Respondent and Abubakar Sadau, and in the course of this case DW2 was called as witness through whom the exhibit was tendered.”
Another manifestation of prejudice by the trial Court is as held by it to the effect that:
“In the application instance, the applicant had the opportunity to cross-examine DW2, representative of the 1st Defendant on the said Exhibit 13 which they failed to do. Moreso, and as held above, the transaction in Exhibit 13 has nothing to do with the applicant. What in my considered view the applicant should gear its energy in establishing their case is the validity or otherwise of the sale to it by Salihu Tanko.”
The foregoing instances show clearly that the learned trial Judge had descended into the arena of litigation and is thereby against the applicant/appellant, contrary to the trial Court’s avowed position of impartiality. These postulations are far-reaching and thereby a breach of the twin pillars of natural justice of audi alteram patem and nemo judex in causa sua, duly captured in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See also the authority of Pollyn vs. Miejene (2012) 14 NWLR Pt. 1321, pg. 567 at 580, paras. E-G, where the Court held that:
“The Court below… had descended into the arena of contest and thereby made itself an actively interested party, this has breached the twin pillars of fair hearing enshrined in Section 36 of the 1999 Constitution. That is audi alteram patem… and nemo judex in causa sua (which forbids an adjudicator to be a Judge or witness in a cause before him). The usual refrain or adage is that justice is not only to be done, it should be seen to have been done. This is subsumed in transparency.”
Issue 3 (three) in the end is resolved in favour of the appellant and against the respondents.
Having resolved issue 1 (one) in favour of the respondents and against the appellant, while issues 2 (two) and 3 (three) are in favour of the appellant and against the respondents, it follows that the interlocutory appeal is allowed in part only.
SUBSTANTIVE APPEAL
This appeal is against the final judgment of the High Court of Nasarawa State sitting in Lafia (hereafter the trial/lower Court), presided over by Hon. Justice Simon Aboki, J. and delivered 23rd March, 2020 in Suit No. NSD/MG16/2016. (See pages 34 – 73 of the Supplementary Record of Appeal).
At the lower Court, the plaintiff who herein is the appellant sued the defendants herein the respondents by way of a writ of summons issued 25th February, 2016 and an accompanying statement of claim wherein it claimed as follows:
“WHEREOF the Plaintiff’s claim against the 1st and 2nd Defendants jointly and severally as follows:-
i. A declaration that the acts of the 1st and 2nd Defendants on the 4 plots of land of the Plaintiff constitutes a trespass.
ii. A perpetual order of this Honourable Court restraining the 1st and 2nd Defendants, their agents, servants, and/or any other person whatsoever acting on their behalf or on their instructions howsoever from further trespassing into and upon the Plaintiff’s 4 plots of land.
iii. An order of this Honourable Court on the 1st and 2nd Defendants for payment to the Plaintiff of general damages in the sum of N3,000,000.00.
iv. Cost of this suit in the sum of N500,000.00. (See pages 1 – 26 of the record of appeal).”
The defendants in their statement of defence and the accompanying processes filed 31st June, 2016 denied the entire claims of the plaintiff. With pleadings closed, the case proceeded to trial in the course of which some interlocutory applications were made and ruled upon by the trial Court. Dissatisfied with one of the rulings – the one delivered 18th November, 2019 to be precise, the plaintiff filed a Notice of Appeal on 27th November, 2019 challenging the ruling. Meanwhile, on the same 27th November, 2019, the plaintiff also filed an application seeking stay of further proceedings in the suit before the said lower Court. (See pages 357 – 370 of the record of appeal). The application was dismissed by the trial Court on 17th February, 2020. (See pages 440 – 453 of the record of appeal and or pages 19 – 33 of the supplementary record of appeal).
Be that as it may, on 16th March, 2020 being the day slated by the trial Court for the adoption of final written addresses by the parties, the defendants who had earlier filed and served their final written address on the plaintiff proceeded to adopt and rely on it. The plaintiff on their part failed to file and serve any written address.
They not only admitted the failure but also went further to inform the trial Court orally that they had instead filed a motion for stay of proceedings because an appeal had been entered in this Court. The learned trial Judge in his wisdom adjourned the substantive suit to 23rd March, 2020 for judgment. (See pages 32 – 33 of the supplementary record of appeal).
In a considered judgment delivered 23rd March, 2020, the learned trial Judge dismissed the entire claim of the plaintiff and entered judgment for the defendants. (See pages 34 – 73 of the supplementary record of appeal).
Piqued by the judgment, the plaintiff (as appellant) proceeded to this Court by filing a Notice of Appeal on 8th June, 2020. (See pages 74 – 81 of the supplementary record of appeal).
The supplementary record of appeal compiled and transmitted out of time on 24th November, 2020 was deemed properly compiled and transmitted 23rd March, 2022.
In line with the practice and rules of this Court, the parties filed and exchanged briefs of argument. The appellant’s brief filed 23rd November, 2020 but deemed properly filed 23rd March, 2022 was presumably filed by A. A. Machika, Esq., while the appellant’s reply brief filed 20th April, 2022 was obviously settled by Emmanuel S. Onoja, Esq. The respondent’s brief filed 23rd March, 2022 was settled presumably by Da David Okokon, Esq. From the Notice and Grounds of Appeal filed 8th June, 2020, the appellant crafted the following 2 (two) issues for determination:
“1. Whether the trial Court did not breach the Appellant’s right to fair hearing by refusing to hear and determine, one way or the other, the Appellant’s Motion on Notice before it delivered final judgment against the Appellant? (Tied to Ground 3).
2. Whether the trial Court had jurisdiction to deliver judgment on an issue that is appealed against and where the appeal has been entered and is pending before the Court of Appeal? (Tied to Grounds 1, 2 and 10).”
On the side of the respondents they raised the following 3 (three) issues for determination:
“a) Whether DW2 was not qualified by law to tender Exhibit 13 being a signatory to same? (Grounds 4 and 6 of the Notice of Appeal).
b) Whether considering the nature and evidence before the trial Court, the interlocutory appeal was necessary as to warrant the trial Court to granting a stay of proceedings. (Grounds 1, 2 and 3 of the Notice of Appeal).
c) Whether the trial Court was right to have refused to grant the stay of proceedings and proceeded with the matter up to judgment. (Ground 10 of the Notice of appeal).”
I have given due consideration to the issues as submitted by the respective parties and I am of the view that the ones raised by the respondents are substantially subsumed or covered by those of the appellants. I shall therefore adopt for consideration and they are so adopted, the issues as set out by the appellant in determining this appeal.
ISSUE 1 (ONE)
Whether the trial Court did not breach the Appellant’s right to fair hearing by refusing to hear and determine, one way or the other, the Appellant’s Motion on Notice before it delivered final judgment against the Appellant.
In making his submission on this issue the learned counsel for the appellant stated that the denial by the trial Court to hear the appellant’s application and determine same one way or the other amounts to denial of the appellant’s right to fair hearing which infested the entire trial and rendered it a nullity. See Dingyadi vs. INEC (No. 1)(2010) 18 NWLR Pt. 1224, pg. 1 at 53-54, paras. C-A, per I. T. Muhammad, JSC., upon which the appellant placed heavy reliance in urging on us to resolve the issue raised for determination in the affirmative.
Appellant submitted further that the resultant consequences of the trial Court’s judicial misadventure highlighted above is a complete nullity of the entire proceedings and judgment of the trial Court. See Nwabueze vs. The People of Lagos State (2018) 11 NWLR Pt. 1630, pg. 201 at 214, paras. E – G. Counsel urged on us to declare the entire proceedings and judgment of the trial Court a nullity.
ISSUE 2 (TWO)
Whether the trial Court had jurisdiction to deliver judgment on an issue that is appealed against and where the appeal has been entered and is pending before the Court of Appeal.
Appellant submits herein that the findings of the trial Court as reflected in its judgment shown particularly at pages 66, 67, 70, 71 and 72 of the additional record of appeal is a final determination of the fate of both parties in respect of Exhibit 13 which was pending in appeal No. CA/MK/33/2020 before this Court. Appellant canvassed that the trial Court lacked the jurisdiction to continue to hear the matter pending the outcome of the appeal. See Order 4 Rule 11 of the Court of Appeal Rules, 2016; and Ikpeazu vs. Ogah (2016) LPELR-40843(CA), per Yahaya, JCA, at pg. 23, paras. C-F, upon which we are urged to resolve the issue in the negative, allow the appeal and declare the proceedings and judgment a nullity.
ISSUE A OF THE RESPONDENTS
“Whether DW2 was not qualified by law to tender Exhibit 13 being a signatory to same.”
Respondents by their issue 1 (one) are saying that it is a cardinal principle of the law that any person who signs a document is bound by the contents of that document and therefore regarded as the maker of same. See Section 83(4) of the Evidence Act Cap E14, 2011 and the case of Raymond Inyang vs. Engr. Dr. Maurice A. Ebong (2002), Pt. 751, pg. 284, 329, per Edozie, JCA. (as he then was). Counsel argued that the DW2 having signed Exhibit 13, it is binding on her and that being the case she is a co-author of the said exhibit and can tender same in evidence before any Court of law. Counsel urged on us to resolve the issue in their favour.
ISSUE B
“Whether considering the nature and evidence before the trial Court, the interlocutory appeal was necessary as to warrant the trial Court to granting a stay of proceedings.”
Learned counsel for the respondents argued that the interlocutory appeal is unnecessary because the issue appealed upon could have been made a subject of appeal or a part of the appeal in the substantive appeal. He submitted that the Supreme Court frowns at unnecessary interlocutory appeals as in the case of Society Bic S.A. vs. C.I. Ltd. (2014) All FWLR Pt. 739, pg. 1212 at 1239-1240, paras. F-A, per Rhodes Vivour, JSC., where he held as follows:
“… cases must be heard with dispatch and resolved quickly. The better course would have been for the trial Judge to proceed with the hearing after the ruling on jurisdiction, since the ruling on jurisdiction could easily be a subject of appeal after judgment. This is clearly an unnecessary interlocutory appeal, a waste of client’s resources and judicial time. Such unnecessary interlocutory appeals have been frowned upon by this Court in a plethora of cases.”
Counsel further canvassed that the appellant could have made a heavy weight argument on the refusal of his application to recall the PW1 and compel the defendants to call a certain Alhaji Abubakar Sadau to be cross-examined on Exhibit 13 after the final judgment rather he appealed the ruling of the lower Court and applied for stay of proceedings. He urged on us to hold that the Court below was right by refusing to hear the latter application seeking stay of further proceedings as being unnecessary in line with cited judicial authorities.
It was again the contention of the respondents that the appellant never made mention of any of the reliefs he sought at the lower Court. He argued that the appellant in this regard was engaged in a callous mischief and attempt to sustain palpable frustration on the respondents’ avowed right to reap the benefits of their judgment but that same has fallen flat like the walls of Jericho at the lower Court. That the appellant’s desire to maintain this appeal is to serve as a clog in the wheel of justice against the jurisprudential interest of the respondents. Learned counsel also contended that the appellant’s fastidious over-flogging of Exhibit 13 is tantamount to placing something on nothing and pretentiously expecting same to stand. He concluded that the appellant is blindly standing on Exhibit 13, but that he shall certainly sink as same can never confer title to the appellant or sustain an action in trespass.
ISSUE C
On the respondents’ third issue, the learned counsel submitted that same is subsumed under their issue (ii) and that the Court below acted within jurisdiction when it delivered judgment in the said case. This is because the interlocutory appeal was unnecessary and could have been made subject of the appeal after judgment. Counsel urged that we dismiss the appeal with punitive cost for lacking in merit and constituting a desecration of our jurisprudential aquarium.
In response to the arguments of the respondents, the appellant made the point that the respondents went on a frolic of their own to formulate and canvass issues not arising from or related to the grounds of appeal. See Amadi vs. Att-Gen., Imo State (2017) 2 NSCQR Pt. 69, pg. 609, 624.
Learned counsel for the appellant urged on us to therefore discountenance those issues of the respondents. If so discountenanced, the inevitable consequence is that the respondents did not contest the appellant’s appeal. That would amount to subtle admission of the submissions and issues canvassed by the appellant.
Appellant further canvassed their position in this appeal to be that once an appeal has been entered before this Court, the trial Court ceased to have jurisdiction to go ahead and make pronouncement on the same matter that is before the appellate Court, more so, on Exhibit 13 the subject of the appeal. See Bronik Motors vs. WEMA Bank Ltd. (1983) 14 NSCC 266. Appellant urged that we allow the appeal and declare the proceedings and judgment of the lower Court a nullity.
RESOLUTION OF ISSUE 1 (ONE)
Whether the trial Court did not breach the Appellant’s right to fair hearing by refusing to hear and determine, one way or the other, the Appellant’s Motion on Notice before it delivered final judgment against the Appellant.
Contained at pages 1 – 18 of the Supplementary Record of Appeal is the appellant’s application seeking the stay of proceedings in Suit No. NSD/MG16/2016 by the trial Court, pending the hearing and determination of the interlocutory appeal to this Court. At page 33 of the said additional record of appeal is contained the proceedings of the trial Court on 16th March, 2020, where learned counsel for the appellant informed the trial Court of the pendency of the motion for stay of proceedings because according to them an appeal has been entered at this Court. The trial Court however in its ruling went and adjourned the substantive suit to 23rd March, 2020 for judgment being 7 (seven) days away.
The issue that has arisen for attention herein is whether the trial Court ignored the application for stay of proceedings before it and went on to deliver judgment in the substantive suit.
While the appellant claims that the learned trial Court failed to hear and determine the said application for stay of further proceedings pending the hearing of their appeal already entered before this Court, the respondents are saying that the application was heard and refused by the lower Court.
In the first instance, it is necessary to state some veritable position of the law regarding applications for stay of proceedings before the trial Court. In the authority of Agu vs. Commissioner of Police (2018) All FWLR Pt. 937, pg. 1632 at 1658 – 1659, per Ogunwumiju, JCA., (as she then was) it was held as follows:
“… grant of a stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation to its logical conclusion, the basis of the substantive merit of his case. A stay of proceedings should not be granted unless the proceedings in the interest of justice ought not to be allowed to continue. Where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of an appeal. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceedings in the trial Court, prudence dictates that a stay of proceedings be granted. In granting an order for stay of proceedings, the Court should be guided primarily by the necessity to be fair to both parties. A stay of proceedings can only be granted by the Court when there is no other option open to it. In the instant case my lord, where grant of stay of proceedings will not do justice to all parties, the lower Court rightly dismissed the appellant’s application for stay of proceedings. (Underlining supplied).
Furthermore, in the case of FRN vs. Dairo (2015) All FWLR Pt. 776, pg. 486, 522, paras. B-F, the apex Court per our revered Nweze, JSC., had this to say:
“… before concluding this judgment, we observe that the interlocutory appeal of the 1st respondent against the ruling of the trial Court epitomizes the frustration of trials at first instance, which our adversarial system of criminal justice unwittingly perpetuates. It actually speaks ill of our criminal jurisprudence… We found that the 1st respondent could not exercise a little restraint even when the trial Court was emphatic that though it found in favour of the admissibility of the said statement. The weight to be attached to it is a matter for determination at the conclusion of this trial. Prudence therefore ought to have dictated to him to await the conclusion of this trial. Henceforth, he would if dissatisfied with the judgment in the substantive case, proceed to appeal against it. We shall continue to look with askance at situations such as those engendered by the said interlocutory appeal, which occasion the frustration of proceedings at trial Courts. They should no longer be condoned or broached. They scandalize the integrity of the judicial process.”
In my humble view there is a world of difference between the Court considering the material set before it in an application for stay of proceedings and thereafter proceed to either grant same or in the alternative refuse it as the case maybe, and/or on the other part the Court fails or neglects to consider the materials at all and thus fail to rule one way or the other on the application. A failure to consider and rule one way or the other on such an application or even any application for that matter however frivolous it may appear to the Court, is an anathema to justice and therefore a breach of the sacred constitutional leaning to fair hearing. Be that as it may, where the Court has taken cognizance or due consideration of the material facts set forth and the said Court comes to a conclusion either refusing or in the alternative granting same, that is the sole duty of the Court and that accords with justice. Much as Courts are prone to deprecate applications seeking to stay proceedings before the trial Court as they tend to impede and delay justice, albeit once such application is put before the Court, it becomes a bounding duty on the said Court to consider same and rule on it one way or the other.
It is manifest in the instant appeal that the appellant in the course of proceedings at the trial Court, was refused an application by the appellant seeking for the PW1 to be recalled and also to compel the defendants/respondents to call Alhaji Abubakar Sadau to be cross-examined on Exhibit 13. Rather than wait till final judgment in the substantive suit, the appellant proceeded to appeal the ruling. Appellant at the same time applied to the lower Court for stay of proceedings. The lower Court in a well considered ruling delivered 17th February, 2020 refused the application for stay of proceedings and held inter alia as follows:
“By virtue of a motion on notice dated and filed 27th November, 2019, learned Counsel for the Plaintiff hereinafter referred to as the Applicant has prayed the Court for an order of Court staying further proceedings in this Suit pending the hearing and determination of the Plaintiff’s interlocutory appeal…
It is an established principle of law that the grant of stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation to its logical conclusion on the basis of the substantive merit of his case. Therefore, the general practice of the Courts is that a stay of proceedings should not be granted unless the proceedings in the interest of justice ought not to be allowed to continue. See the case of Agu vs. C.O.P. (2017) 2 NWLR Pt. 1549, pg. 254…
The applicant seeking a stay of proceedings pending appeal must show special or exceptional circumstance why the successful party in an interlocutory decision should be deprived of the fruits of his victory, even if temporary by stay of further proceedings in the matter. Unless if a genuine issue of jurisdiction is raised by the Applicant in an appeal, a Court before whom an application for stay of proceedings is made should not grant such an application…
Accordingly, the motion seeking for an order for stay of proceedings of the ruling of this Honourable Court delivered on 18th November, 2019 is hereby refused and same dismissed. (See pages 440 – 453 of the record of appeal).
The said application for stay having been refused, the appellant appealed the decision and further brought an application for stay of proceedings at the Court. As at 16th March, 2020 when the substantive matter was slated for adoption of written addresses the appellant submitted before the trial Court thus:
“Mr. Onoja – We did not file any written address. We filed a motion on notice seeking for stay of proceedings of this Court because an appeal has been entered in the Court of Appeal.
Court – The case is adjourned to the 23rd of March, 2020, for judgment.
There is nothing on record to show that this subsequent application was proper before the trial Court. There is no prima facie evidence of service of the purported motion in question, neither is there any indication of the day it was slated for hearing. This obviously swayed the trial Court into ignoring the learned counsel for the appellant and his purported application for stay. The learned trial Court was therefore right in ignoring an application presumed to be based on a non-existent motion on notice and its further adjourning the matter to 23rd March, 2020 for judgment. The refusal to grant the oral application as it were did not my view violate the appellant’s right to fair hearing.
I do not also on the other part think that it is the business of the trial Court to direct any of the parties on the way to go or what to watch out for in doing his or her case. For the trial Court to indicate or direct the plaintiff/applicant in its ruling that what the applicant should gear its energy in establishing their case is the validity or otherwise of the sale to it by Salihu Tanko, is akin to the trial Court jumping into the arena of dispute. The law of course abhors such posture as it tends to strip the Court of its avowed undertaking to eschew partiality in the conduct of proceedings before it. However, and not withstanding this position of the trial Judge in the instant scenario, same would not constitute enough reason for this Court to hold that the trial Court breached the appellant’s right to fair hearing and as such invalidate the final judgment delivered against the appellant in the substantive suit. Issue 1 (one) is thus resolved in the negative consequent upon which it goes in favour of the respondents and against the appellant.
ISSUE 2 (TWO)
Whether the trial Court had jurisdiction to deliver judgment on an issue that is appealed against and where the appeal has been entered and is pending before the Court of Appeal.
On 18th November, 2019, the trial Court delivered a ruling dismissing an application brought before it by the appellant. (See pages 433 – 437 of the record of appeal). Irked by the ruling the appellant filed its interlocutory appeal vides Notice of Appeal dated and filed 27th November, 2019. (See pages 454 – 459 of the record of appeal). On same 27th November, 2019, the appellant filed a Motion on Notice for stay of proceedings of the trial Court pending the hearing and determination of the interlocutory appeal. (See pages 357 – 370 of the record of appeal). This application for stay of further proceedings was however dismissed by the trial Court on 17th February, 2020. (See pages 440 – 453 of the record of appeal or 19 – 32 of the additional record of appeal).
On 26th February, 2020, the appellant filed before us a motion on notice seeking stay of further proceedings by the trial Court and the same was entered as CA/MK/30M/2020. Subsequently, the appellant compiled and transmitted the record of appeal to this Court and the same was entered as appeal No. CA/MK/33/2020. On 16th March, 2020, the appellant filed yet another application before the trial Court seeking stay of further proceedings for want of jurisdiction. (See pages 1 – 18 of the additional record of appeal).
On the said 16th March, 2020 in the open Court, the learned counsel for the appellant informed the trial Court that they had a motion on notice for stay of proceedings bordering on lack of jurisdiction. (See page 33 of the additional record of appeal). The learned trial Judge indeed at this point adjourned the substantive suit to 23rd March, 2020 for judgment and on which did the said judgment was delivered. (See pages 34 – 73 of the additional record of appeal).
I am indeed at pains finding where the learned lower Court ruled on this motion that was filed on 16th March, 2020. (See again the proceedings as copied at page 33 of the additional record of appeal). Albeit, I do not likewise see anywhere in the whole proceedings at the trial Court where the said motion could be said to have been properly placed before or brought to the attention of trial Court. As I noted a while ago, there were circumstances that swayed the learned trial Judge into ignoring the appellant and his vive voce application that there was a pending interlocutory appeal for which further proceedings ought to be stayed. Aside from not having the motion paper in the trial Court’s file, there appears to be no proof of service of the purported motion paper on the respondents. Much as the purported motion paper on the face of it bears 16th March, 2020 as the date of filing, it is however silent as per the return date of hearing. (See page 1 of the additional record of appeal). The learned trial Court was therefore right in ignoring the application and further adjourned the matter to 23rd March, 2020 for judgment. Assuming the oral application was even a proper mode of placing such an application before the trial Court, the grant and or refusal of an application of such nature is at the discretion of the Court. The trial Court was therefore right in ignoring the viva voce application regarding an improper application for stay. The refusal by the learned trial Judge to hear an application which was more or less a mirage and not therefore properly set before it cannot in any way be seen to violate the appellant’s right to fair hearing.
Finally, in the final judgment delivered 23rd March, 2020, the learned trial Judge had held inter alia that:
“…. Consequently, I am of the considered view which I hold that Exhibit 13 constitutes the 1st defendant’s document of title to the disputed property as it is potently clear that the documents were duly executed and the grantor i.e. Abubakar Sadau had what it granted to the 1st defendant…… I hold that the Defendants are bona fide purchaser for consideration having paid for the disputed land.”
The above finding is clearly in final determination of the fate of both parties to the suit in respect of Exhibit 13 which is part of the subject of the interlocutory appeal which was entered as appeal No. CA/MK/33/2020 on 4th March, 2020. The learned counsel for the appellant is of the contention that the trial Judge lacked the jurisdiction to make the foregoing determination because by the interlocutory appeal, the record of proceedings and the res have then been taken into the custody of the appellate Court, leaving nothing before the trial Court to adjudicate upon. This is the case in the authority of Ezeokafor vs. Ezeilo (1999) LPELR-1209(SC) where the apex Court, per Achike, JSC., (of blessed memory) held as follows:
“What flows automatically from the appeal being entered is that the appellate Court which has now received the record of appeal is said to be seised of the whole proceedings in the sense that the res in the appeal shall also automatically pass into the custody of the said appellate Court seised of the whole proceedings…”
There is no gainsaying that this is the true and binding position of the law and the same is further manifested in Order 4 Rule 11 of the Court of Appeal Rules, 2016 which stipulates thus:
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole proceedings as between the parties thereto. Except as may be otherwise provided in these rules, every application herein shall be made to the Court and not the Court below.”
The above scenario can only be sustained where the lower Court is truly and properly seised of knowledge and existence of an appeal entered at the appellate Court. Where such purported appeal remains a mirage and or an illusion, the lower Court not being a spirit can only continue with the proceedings before it. The lower Court ought to be duly satisfied about the entering of an appeal which is both a question of fact and law. Material and requisite facts of the purported appeal are not seen to have been placed before the lower Court in the instant case. The trial Court was thus right to have proceeded to conclusion with the substantive suit. Issue 2 (two) is hereby resolved in favour of the respondents and against the appellant who obviously tried its best to use frivolous and unnecessary applications to attempt to frustrate and thwart the course of justice.
This appeal in the end lacks merit and is therefore dismissed with costs assessed and fixed at N200,000.00 in favour of the respondents and against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading before now the draft judgment just delivered by my learned brother, HON. JUSTICE C. IFEOMA JOMBO-OFO JCA, and he has exhaustively addressed the contentions of the respective learned Counsel for the parties on all the issues distilled for determination.
I adopt them as mine to also hold that the Appellant’s appeal is unmeritorious and same is accordingly dismissed.
I also abide by the consequential order as to costs.
MUSLIM SULE HASSAN, J.C.A.: I have had the privilege of reading the draft of the leading judgment in this appeal just delivered by my Lord, CORDELIA IFEOMA JOMBO-OFO, JCA, and I totally endorse the reasoning and conclusion that the appeal lacks merit and should be dismissed.
Appeal dismissed as to cost awarded.
Appearances:
Emmanuel Onoja, Esq. For Appellant(s)
Odu Onabe, Esq. For Respondent(s)