JOHN AGBARA & ANOR v. OBUDIE CHIBUEZE & ORS (2014)

JOHN AGBARA & ANOR v. OBUDIE CHIBUEZE & ORS

(2014)LCN/7070(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/E/27/2009

RATIO

POSITION OF THE LAW ON THE ESSENCE OF A NOTICE OF APPEAL

It is trite that a notice of appeal being an initiating process in every appeal is so crucial in the appeal process, as a writ of summons is in ordinary civil action. It is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack jurisdiction to entertain it. See cases of Aviagents Ltd. v. Balstratvest Investment Ltd. (1966) 1 ALL ER 450, Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622. If no proper notice has been filed then there is no appeal for the court to entertain. See Aradi v. Okoti (1972) 7 SC 52; CBN v. Okojia (2004) 10 NWLR (Pt.882) 488 and Olarewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622. PER ADZIRA GANA MSHELIA, J.C.A.

WHETHER ISSUES FOR DETERMINATION MUST BE DEDUCED FROM GROUNDS OF APPEAL

It is trite that appeals are not argued from the grounds of appeal but on the basis of issues formulated therefrom.

An issue for determination for the purposes of an appeal is the substantial question of law or of fact or both arising from the ground of appeal filed in the appeal. See Imonikhe v. The Attorney General Bendel State (1992) 6 NWLR (PT.248) 467.

JUSTICES:

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. JOHN AGBARA
2. AUGUSTINE CHUKWU – Appellant(s)

AND

1. OBUDIE CHIBUEZE
2. JEREMIAH CHIBUEZE
3. EDWARD CHIBUEZE
4. ANIAGOLU CHIBUEZE – Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court, Awgu, Enugu state sitting in its appellate jurisdiction delivered on the 15th day of November, 2007.

The appellants herein as plaintiffs commenced suit No. CC No.4c/99 at the Customary Court, Oduma in Aninri Local Government Area of Enugu State claiming against the defendants/respondents as follows:-
1. Declaration of Customary right of occupancy in respect of Obara Okolo land situate at Umnole village in Obeagu Oduma.
2. An injunction restraining the defendants, agents, privies from further trespass or entry into the said land.
3. Further restraining the defendants from tampering with the tree failed by Nwodi Obasi sometime last year. For the sum of N2,000.00 being estimated cost of the palm tree already used by the defendants.

The defendants denied liability. In proof of their case at the trial customary court, appellants as plaintiffs called two witnesses, i.e. the 2nd appellant and one Anthony Agwu referred to as PW3 at page 9 of the record of appeal. While the respondents defended the appellants’ claim through the testimony of the 2nd respondent herein. The trial customary Court by a majority decision entered judgment in favour of the appellant herein granting their claim in its entirety on the 15th day of August 2002. There was however dissenting judgment by a member of the panel.

Dissatisfied with this majority decision the respondents lodged an appeal to the High Court Agwu Enugu State vide their notice of Appeal dated 9-09-2002. See pages 18 of record. Respondents subsequently filed a Notice of appeal dated 18-10-2002. (see pages 3-4 of the record). Subsequently, the respondents by a motion on notice dated 17 -11-2005 and filed on 21-11-2005 sought to amend the notice of appeal dated 9-09-2002.
(see pages 22-26 of the record). At page 46 of the record the trial Customary Court Oduma delivered the ruling on 22-9-2002, refusing the respondents’ application to appeal against the judgment of the court dated 15-08-2002. This is what the court said:

“Both the plaintiffs and the defendants are required by this court to go to higher court and tender their request of granting some days to enable them appeal against the judgment passed by the court on the 15th day of august, 2002. This honourable court has no jurisdiction over their case anymore since the day they appeal against this judgment has expired.”

Upon the refusal of the above application by the trial court, the Respondents through their counsel filed a Notice of Appeal (without leave) dated 18th day of October, 2002 at the registry of the trial court. From the record there equally exist another Notice of Appeal dated the 9th of September, 2002, same was filed within the statutory 30 days.

The respondents in a life saving voyage filed another motion for leave to appeal at the appellate High Court wherein a proposed Notice of appeal was annexed thereto. (See page 22-26 of the record). The respondents subsequently withdrew the motion dated 17th November, 2005 on the ground that the appellants herein informed him that he would oppose the said motion if moved. See page 61 of the record.

Written addresses were duly exchanged by the parties. The appeal came up for hearing on 16-07-2007 and both counsel adopted their respective written addresses. Judgment was delivered on the 15th day of November 2007 wherein the appellate High Court allowed the appeal.

Dissatisfied with the said judgment the appellants appealed to this court vide their Notice and Grounds of Appeal dated 2-05-2008 and filed on 5/5/08. The said notice was filed pursuant to the order of the appellate High Court made on 21st day of April, 2008 containing 3 grounds of appeal. The grounds shorn of the particulars read as follows:-

GROUNDS OF APPEAL
(a) The appellate High Court judge erred in law when he held that the Appellant/Respondent’s Notice of Appeal dated 9/9/2002 was valid and good for the purpose of the Appeal against the judgment of the trial Customary Court.

(b) The learned appellate High Court Judge erred in law when after finding that the appeal was not properly initiated by due process and was therefore incompetent, proceeded to hear the appeal.

(c) The learned appellate Judge of the High Court failed to re-evaluate, or properly re-evaluate at all the evidence of the parties in the appeal.

In compliance with the rules of this court both parties filed and exchanged briefs of argument. Appellants’ brief of Argument dated and filed 31-03-10 was settled by Chief M.O. Uzor Esq. while respondents’ brief of argument dated and filed 30/04/10 was settled by Senator O. Odurukwe Esq. when the appeal came up for hearing both counsel adopted their respective briefs of argument.

The appellants formulated two issues for determination as follows:-
(a) Whether in view of the respondents’ application for leave to appeal out of time which was refused on 24/9/2002, the notice of appeal dated/filed 9/9/2002 was in existence by 24/9/2002 and therefore valid for the purpose of this appeal.
(b) Whether the appellate High Court Judge was right in proceeding to hear and determine the appeal in favour of the respondents “in his opinion,” in order to do substantial justice after finding that the appeal was not initiated by due process and therefore incompetent.

Respondents clearly indicated in their brief of argument that they adopted the two issues formulated by the appellants as such there is no need to reproduce them.

A careful perusal of issues (a) and (b) clearly showed that the complaint relates only to the notice of appeal. There is no complaint relating to ground 3 of the notice of appeal which deals with evaluation of evidence. It is trite that appeals are not argued from the grounds of appeal but on the basis of issues formulated therefrom.

An issue which is not supported by any ground of appeal, is incompetent and will be struck out or at least disregarded by the Court of Appeal in the determination of the appeal. See Odife v. Aniemeka (1992) 7 NWLR (PT.251) 25 and Kalu v. Odili (1992) 5 NWLR (Pt.276) 1. In the instant case no issue has been distilled from ground 3 as such it is incompetent and liable to be struck out or discountenanced. Consequently, ground 3 is hereby struck out.

In arguing issue one, learned counsel for the appellants contended that there was no appeal properly brought before the appellate High Court leading to its decision of 15/11/2007 in HAW/5A/2002: John Agbara & Anor. Vs. Obudie Chibueze & Ors. in that by the depositions of the respondents herein in their motion/affidavit, they stated on oath that they had not as at that date, appealed against the judgment of the Customary Court, Oduma, by reason of which they were seeking the leave of that court to appeal out of time. That Customary Court, Oduma refused their application in its Ruling of 24/9/2002, directing that since they were out of time in appealing against the judgment of 15/8/2002, they should apply therefore to the High Court. It was contended that there is nothing to show that the respondents applied to the High Court as directed or appealed against the order. Learned Counsel pointed out that there appeared, contrary to their deposition in their affidavit in support of motion for leave to appeal out-of-time, a Notice of appeal filed timeously on 9/9/2002. He said how they appealed within time and also brought application for leave to appeal out of time could not be explained by them. That the appellate High Court Judge also failed to advert his mind thereto in the determination of the appeal.

Learned Counsel further submitted that since the respondents purportedly argued the appeal on the basis of the Notice of appeal of 9/9/2002, the other notices of appeal are accordingly deemed abandoned as such counsel will not make comments on it. Counsel also contended that the respondents cannot approbate and reprobate at the same time. That the respondents will in the circumstance of their evidence on oath attached to their motion by which they sought leave to appeal out of time, which leave was refused on the 24/09/2002, be estopped from subsequently alleging that they filed the Notice of Appeal of 9/9/2002, timeously. Counsel went further to define estoppel citing the case of Ebba & 3 Ors. v. Ogudo & 2 Ors. (2000) FWLR (PT. 27) 2094 at 2111, E-F (sc) and Salami v. Sogekun & 3 Ors. (2004) All FWLR (Pt. 207) 672 at 689 paras B-D (CA). He urged the court to allow the appeal and set aside the judgment of the court below on the ground that there was no valid notice of appeal upon which the appellate High Court determined the appeal.

In response, learned counsel for the respondents cited the decision in the case of Agbo v. the State (2006) LRCNCC 86 at 114 and respectfully urged the court to exercise its authority to look at the courts record and all documents in the file. Counsel strenuously argued, citing the case of Alhaji Umar Abba-Tukur v. Governor of Gongola State (1988) All NLR 42 and the case of Onwe v. The State (1975) 9-11 SC 41, the combined effect of which is that an appellant can file more than one notice of appeal and that it is open for counsel for the appellant to choose which of the notices he intends to adopt.

Learned counsel further submitted that having adopted the Notice of appeal dated the 9/9/2002 (filed by the respondents within time), the appeal is valid and competent and he urged the court to resolve this issue in favour of the respondents.

I have carefully considered the submissions of learned counsel and the authorities cited. The crux of this issue is the propriety or otherwise of the respective notices of appeal filed at the appellate High Court i.e. Notices of appeal dated the 9/9/2002, 18/10/2002 and the proposed Notice of Appeal filed on the 21/11/2005 vis-a-vis the depositions on oath of the 2nd respondent on the 16/9/2002 in support of the motion for extension of time within which to appeal against the decision of the Customary Court, Oduma. I am not persuaded to hold otherwise by the argument of learned counsel for the respondents that by virtue of the Supreme Court decision in Tukur v. Governor of Gongola State (supra) an appellant can file more than one Notice of Appeal in an appeal. The relevant of excerpt of the said judgment as delivered by Oputa J.S.C. is reproduced hereunder:-
“There is however a grave misconception disclosed in learned counsel for the appellants oral argument of the first issue for determination. He concentrated unduly on mere filing of two Notices. He did not emphasize the fact that before the Court of Appeal heard his objection on 4/3/07 the first Notice filed on 5/11/86 was withdrawn leaving only one Notice that was filed on 17/11/86…. An appellant can validly withdraw one of two Notices of Appeal and then proceed to argue his appeal based on the other remaining Notice of Appeal.”
See also the cases of Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt.1111) 508, and Nigerian Bar Association v. Chukwu Merife (2007) 8 NWLR (Pt.1035) 221.

From the above the option open to an appellant who has filed more than one Notices is to choose among the Notices the one that the appeal is to be premised on thereby withdrawing or abandoning (as the case may be) the others. It is apparent that appellants’ counsel adopted the Notice of Appeal dated 9/9/2002 as the only Notice that the appeal be argued and premised on. This, the counsel did in his opening address while arguing the appeal at the appellate High Court in the following words:
“My lord, this is an appeal against the judgment, of the majority members of Customary Court Nenwe/Oduma delivered on the 1st day of August, 2002, in Suit No. CCNO/42/99. The said judgment was delivered in favour of the plaintiffs who are now the respondents in this appeal. And the appellants filed their notice and grounds of Appeal (within time) on 9th day of September, 2002. There is only one ground of appeal an Omnibus Ground has two particulars (erroneously numbered two and three respectively contained) in the Notice of appeal (see page 43 of Record). And it is upon this notice of appeal (and on non other) that argument of this appeal is based.” (see page 32 of the record of appeal).

Having opted to argue the appeal upon the notice of appeal dated 9/9/2002 only, the other notices of appeal are deemed abandoned as rightly observed by learned counsel for the appellants.

Now I have to come to the cross road of this issue i.e. the competence (life) of the only surviving notice of appeal dated 9/9/2002 having regard to the affidavit evidence of the 2nd respondent herein.

Both counsel are in consensus that after the Judgment of 15/8/2002 by the trial customary Court, Oduma, the respondents’ by the notice of motion dated the 6th day of September, 2002 applied for leave to appeal out of time. The said motion is supported by an 11 paragraph affidavit deposed to by Jeremiah Chibueze (the 2nd respondent) and same was refused by the court (see supplementary record). I find the depositions in the affidavit in support of the said motion is of more relevance than the motion itself hence I shall reproduce below the averments as contained in the affidavit for ease of reference:

“I Jeremiah Chibueze, farmer, Christian and adult male citizen of Nigeria, residing at Umunoke Obeagu, Oduma hereby make oath and state as follows:-
1. That I am the 2nd Defendant in this suit.
2. That I have the consent and authority of the 1st, 3rd and the 4th defendants to depose to this affidavit on their behalf.
3. That the honourable court entered (judgment for the plaintiffs in this suit on 15 August 2002, and we indicated to the honourable court our intention to appeal against the judgment.
4. That on the 22 August (one week after delivery of the said judgment) we paid the appeal fee to the registrar.
5. That the registrar did not provide us with the record of proceedings and judgment of this case until, Tuesday 10 September 2002.
6. That we took the said record of proceeding and the judgment to our counsel the next day, 11 September, 2002 to enable him file the appeal.
7. That 30 days allowed us under the rules of the Honourable Court to file our appeal shall expire on Saturday, 14th September, 2002.
8. That our counsel, Senator Odunukwe informs us and we verily believe him that he will not be able to prepare our appeal and file same latest Friday, 13 September, 2002 which shall be the last date for us to file our appeal. Hence this application.
9. That it is in the interest of justice that this application be granted.
10. That the plaintiff will not be prejudiced if this application is granted.
11. That I depose to this affidavit in good faith believing in its trueness and correctness to the best of my knowledge, in accordance with the Oaths Law.

I have carefully perused the affidavit reproduced supra. The averments in paragraphs 3 and 4 clearly showed that respondents paid the appeal fee for filing of notice of appeal to the registrar within one week of delivery of the judgment. The said judgment was delivered on 15-08-2002. There is no contrary averment from the appellants to show that the claim of the respondents that they paid filing fee for the notice of appeal to the registrar of the Customary Court is false. The Notice of Appeal dated 9/9/2002 appearing at page 18 of the record supports the claim of the respondents that they paid for the filing fee within time. In the introductory part of the respondents brief of argument, learned counsel attempted to explain the mixed up. He stated thus:

“3.02 On the 9th of September, 2002 (25 days after the judgment was delivered by the Customary Court) the respondents herein filed their Notice of appeal (see page 18 of the record) challenging the said judgment.
3.03 The respondents herein briefed counsel the next day being 16th September, 2002.
3.04 Believing that the respondents were out of time, which belief was informed by counsel’s ignorance (legal representation) was not allowed at Customary Court at that time) that the respondents herein had filed their Notice of Appeal.
3.05 Upon receipt of the record of proceedings with the respondents. Notice of Appeal of 9/9/2002 from the Customary Court, counsel ignorantly attached another Notice of appeal dated 18-10-2002 to the copy of the record of proceedings which was served on the appellants herein.

The mixed up was as a result of blunders committed by respondents counsel. At the hearing of the appeal, before the appellate High Court, learned counsel for the respondents clearly indicated that his argument was based on the Notice of Appeal dated 9/9/2002. The Notice of Appeal is part of the record and it was filed within time. There is clear endorsement that the necessary fees was duly paid. As it is this court cannot close its eyes to the existence of the Notice of Appeal. Appellants’ counsel should have verified from the registrar of the Customary Court whether such Notice of Appeal was actually filed as alleged or not. In absence of any contrary evidence, I would hold that the said Notice of Appeal dated 9/9/2002 is valid and competent. The appellate High Court determined the appeal based on valid notice of appeal. I will resolve issue 1 in favour of the respondents.

Issue two is whether the appellate High Court judge was right in proceeding to hear and determine the appeal in favour of the respondents “in his opinion”, ‘in order to do substantial justice’ after finding that the appeal was not initiated by due process and therefore incompetent; while arguing this issue learned counsel for the appellants contended that appellants as respondents challenged in the appellate High Court, the notice of appeal of 9/9/2002 as not being proper or properly before the court based on their application to the trial customary court which was refused on 24/9/2002. The respondents did not show any evidence that on their application being refused they applied for the requisite leave to appeal out of time to the High Court or appealed against the order of refusal.

According to the learned counsel the appellate High Court found that the appellants/ respondents’ counsel did not adduce reasons for the state of affairs as to the notices of appeal and thereby stated or found that “—- this appeal cannot be said to have been properly initiated by due process and therefore incompetent.” (see pages 72, lines 16-22 of the record). But after finding that the appeal was not initiated by due process and therefore incompetent the court in its opinion favoured the notice of appeal purportedly filed on 9/9/2002 “in the interest of doing substantial justice and determined the appeal on the basis of the purported notice of appeal of 9/9/2002, notwithstanding that by 16/9/2002, the respondents had applied to the Customary Court for leave to appeal out of time, which leave was refused on 24/9/2002. Learned counsel submitted that the appellate High Court having found the appeal incompetent, had no other duty than to strike out or dismiss same, but not to deal or determine the case on the basis of the incompetent notice of appeal. Counsel argued that, that court would have held that it did not have the jurisdiction to do so, it being the law that a notice of appeal filed outside the prescribed time, without leave for extension of time is grossly incompetent and all arguments advanced in pursuance thereof go to no issue. See Prof. Sa’ad v. Nyame & Ors. (2004) 11 FWLR (Pt.201) 1678 at 1700.

Learned counsel for the respondents commenced his argument under issue two by reference to order 32 Rule 15 of the High Court Rules, 1988 (which was in force when the appellate High Court heard the matter) giving rise to the instant appeal hereinafter referred to as the Rules. It was his contention that Order 32 Rule 15 of the High Court Rules, the existence, if any, of any error or defect in the respondents notice of appeal at the appellate court should be viewed or treated as irregularity. The submission is strengthened by the fact that the appellate High Court was vested with a discretion to adjourn hearing (of the appeal) till after amendment of the effort or defect has been effected. That appellants have not proved that they were in any way or manner deceived or misled by the defect or error. Learned counsel cited in support the case of Aliu Bello & 13 Ors. v. A-G Oyo State & Ors. (1986) 5 NWLR (Pt. 45) at 828 wherein the Supreme Court per Oputa JSC held as follows:-
“The picture of the law and its technical rules triumphant and justice prostate may no doubt have its admirers. But the spirit of justice does not reside in forms and formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and all its technical rules ought to be but a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed only serve to render justice grotesque or even lead to outright injustice.” The court will not endure the mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it.” See also State v. Gwonto (1983) 1 SCNLR 142 at 160 wherein the Supreme Court per Eso J.S.C. of blessed memory) stated: “The court is more interested in substance than in mere form. Justice can be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.” See also United Austrialia Ltd. v. Barclays Bank (1941) A.C. 1 at 29 wherein Lord Atkin said: “when these ghosts of the past (technicalities) stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.” See Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184; Salami v. Bungirimi (1998) 9 NWLR (Pt.599) 661; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 etc. He urged the court to resolve issue 2 in favour of the respondents.

I have considered the submissions of counsel and the authorities cited. Having concluded under issue one that the Notice of Appeal dated 9/9/2002 is valid, I will answer the question posed by issue two in the affirmative. I agree with the submission of learned counsel for the appellants that the appellate High Court made a finding that the appeal was not initiated by due process and therefore incompetent. But the same court went further and identified the Notice of Appeal dated 9/9/2002 filed by the respondents as subsisting and capable of igniting an appeal since it was filed within time. It is worthy of note the observation of the Appellate High Court appearing at page 72 of the record:
“No reasons have been adduced by the Appellants’ counsel for the state of affairs as to the Notice of Appeal other than as submitted above without a properly (sic) notice of appeal, this appeal cannot be said to have been properly initiated by due process and therefore incompetent. However properly issued notice of appeal initiates the appeal process and subsists until set aside or struck out for one reason or the other. It is on record that the judgment of the lower court was entered on the 15th August 2002. On the 9th September 2002 and within the time prescribed for the appeal as of right, the Appellants filed a notice and grounds of appeal in the registry of the lower court. It is the opinion of this court that that initial notice of Appeal filed subsists so long as it was not set aside but there was abuse of court by the subsequent notices of appeal irregularly filed. This court holds this now in order to do substantial justice between the parties as the courts have always been urged to do in situations as this, i.e. so as to pursue substance and not the form.”

The surviving notice of appeal dated 9/9/2002 is valid and competent. The said Notice of Appeal is not vitiated in anyway. Since the Notice of Appeal is not defective even if the appellate High Court made a finding that it is incompetent, that statement in my humble view would not change its validity. It was wrong for the appellate High Court to say that the appeal was not initiated by due process and declared the Notice of Appeal incompetent while it is not. Be that as it may, it is the law that it is not every error in a judgment that will lead the Appellate Court to set aside the judgment on Appeal. See Osolu v. Osolu (2003) 11 NWLR (Pt.832) 608, at 643 and Omozeghian v. Adjarho (2006) 4 NWLR (Pt.969) 33 at 60. Every case has to be considered according to its given set of facts and circumstances.

As earlier stated in this judgment, following the decision of the Supreme Court in Tukur v. Governor of Gongola State (supra) an appellant who has filed more than one Notice of Appeal can validly withdraw one of the two notices of appeal and proceed to argue his appeal based on the remaining notice of appeal. In the instant case respondents’ counsel adopted the notice of appeal dated 9/9/2002 as the only notice that the appeal would be argued and premised on. The court below was therefore right when it stated that, “the initial notice of appeal filed at the registry of the Customary Court, within the prescribed period, subsists so long as it was not set aside.” A valid notice of appeal activates the jurisdiction of the appellate court. In other words a valid notice of appeal is the foundation and substratum of every appeal. See F.B.N. Plc & Ors. v. Alhaji Salamanu Maiwada & Ors. (2012) LPELR 9713 (SC). The validity of the notice of appeal was not effectively challenged by the appellants. It is trite that he who asserts must prove. The appellants are questioning the genuiness of the notice of appeal but they failed to take steps to verify from the registry of the Customary Court whether the notice of appeal dated 9/9/2002 was filed in that registry as claimed by the respondents.

In the instant case respondents’ counsel complicated the issue by filing multiple notices of appeal. It would not be fair for the respondents to suffer because of the blunders committed by their counsel. It is therefore my humble view that the appellate High Court took the right step by determining the appeal on merit having identified the notice of appeal dated 9/9/2002 as subsisting and valid.

For the reasons stated hereinabove, I will resolve issue two in favour of the respondents.
In the result I hold that this appeal is devoid of merit. Appeal is accordingly dismissed. The judgment of the Appellate High Court (Agwu Judicial Division of the Enugu State High Court) delivered on 15/11/2007 in Appeal N0. HAW/5A/2002 coram. Nwobodo, J. is hereby affirmed. Parties to bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the Judgment just delivered by my learned brother and he has admirably dealt with all the Issues that fell for determination. I have nothing more to add to his well reasoned and comprehensive Judgment than to agree with him that the appeal lacks merit and should be and accordingly dismissed.

I abide by the order of my learned brother that the parties should bear their respective costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Sister ADZIRA GANA MSHELIA, JCA. I am in complete agreement with the reasoning and conclusions therein. I abide by the orders therein.

Appearances

Emeka Nebo with G. A. Ononugbo (Mrs) For Appellant

AND

Senator OdunukweF or Respondent