KOKO v. NEMI (2022)

KOKO v. NEMI

(2022)LCN/16999(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/PH/521/2013

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

DR. BRIGHT J. KOKO APPELANT(S)

And

DEACON EMMANUEL NEMI RESPONDENT(S)

RATIO

WHETHER OR NOT ALL RULES OF COURT MUST BE OBEYED

The phrase ‘but’ is used to introduce a word or phrase that contrasts with what was said before (Oxford Advanced Learner’s Dictionary, New 9th Edition page 203) in effect Order 34 Rule 1 of the rules of the lower Court (supra) empowers the lower Court on its own motion or suo motu raise the issue of non-suiting the claimant but before the order of non-suit is made by the lower Court, it shall, (a word of command, obligation or mandatory/compulsory connotation), give the legal practitioners representing the parties the right to make submissions about the propriety or otherwise of making such order. Rules of Court are designed for orderly conduct of the business of civil litigation for fair, just, cost-friendly, expeditious and/or quick dispensation of civil justice.
Rules of Court must not only be obeyed by the parties but also be obeyed by the Court vide the case of MC Investments Ltd. v Core Investments & Capital Markets Limited (2012) 12 NWLR (Pt.1313) 1 at 17 where the Supreme Court held that rules of Court are made to be complied with by the parties and the Court. See also the Supreme Court cases of Ighedo v Power Holding Company Nigeria PLC (2018) 9 NWLR (Pt.1623) 51, Williams v Hope Rising Voluntary Fund Society (1982) N.S.C.C. 36. PER IKYEGH, J.C.A.

WHETHER OR NOT AN ORDER OF NON-SUIT HAVES THE PLANTIFF A SECOND CHANCE TO PROVE HIS CASE

A non-suit being a final decision which decides that none of the parties has won the litigation but preserves the plaintiff’s right of another action on the same subject matter and the same issue vide Ugese v Siki (2007) 8 NWLR (Pt.1037) 452, appears to be some sort of soft landing in sensitive litigation like land dispute which would allow the parties or give room for the plaintiff to take another bite at the cherry (so to put).
In dealing with the amplitude of an order of non-suit, the Supreme Court held in the case of Ugbodume and Ors v. Abiegbe and Ors. (1991) 8 NWLR (Pt.209) that a non-suit means giving the plaintiff a second chance to prove his case and that the Court has to consider and balance whether the order of non-suit would be wronging the defendant, and on the other hand whether the dismissal of the case would be wronging the plaintiff. The Supreme Court added that a non-suit is not a favour to either side of the dispute and that it is not meant to rob or deprive a party of a technical success but is based on the foundation of justice itself that the door of the temple of justice should not be shut against a party who has not totally failed to prove his case and that its overall essence is to ensure that justice is done by affording the parties the opportunity for another trial. In other words, an order of non-suit can, and ought to be made when the plaintiff has not totally failed and where at the same time the defendant is not entitled to the judgment of the Court vide Efetiroroje v Okpalefe ll (1991) 5 NWLR (Pt. 193) 517.
The Supreme Court case of Adusei v Adebayo (supra) at 564 cited by the appellant relied on the Supreme Court cases of Craig v Craig (1966) 2 SCNLR 61, Osayi v Izozo (1969) 1 SCNLR 295 and Anyaduba v N.R.T.C Ltd (1992) 5 NWLR (Pt.243) 535 to hold (per the judgment prepared by His lordship, Peter-Odili J.S.C.,) that failure of the trial Court to allow the parties (or their counsel) to address it on the issue of non-suit which that Court raised suo motu was fatal to the order of non-suit it had made.
A non-suit produces the same result as a retrial which is that a plaintiff is allowed to re-litigate the issues in controversy, but before a non-suit can be entered the Court should first give the parties in the case the opportunity of being heard on the issue of non-suit vide the case of Olufosoye v Olorunfemi (1989) 1 NWLR (Pt.95) 26 following the cases of Ikoro v Safrap (Nig.) Ltd. (1977) 2 S.C. 123, Craig v Craig (1966) 1 ALL NLR 173, Aigbe v Edokpolor (1977) 2 S.C. 1, Omoregbe v Lawani (1980) 3-4 S.C. 108. PER IKYEGH, J.C.A.

WHETHER OR NOT THE DISTINCTION BETWEEN A RETRIAL, A NEW TRIAL OR A TRIAL DE NOVO OR FRESH HEARING IS ESSENTIAL OR SUBSTANTIAL, OR MATERIAL

The next step is the consequential order to make. The Supreme Court held in the case of Kajubo v State (1988) 1 NWLR (Pt.73) 721 that the distinction between a retrial, a new trial or a trial de novo or fresh hearing is neither essential nor substantial, nor material and that each is substantially a trial as each has the essential element of a trial-that is, the finding out by one examination, the truth of the point in issue or question in controversy between the parties whereupon judgment is given.
The Supreme Court added per the judgment prepared by Oputa, J.S.C., (of blessed memory) in pages 739-740 of the same law report that when a trial is declared a nullity, the effect is that, in law, not fact, the trial amounted to a ‘no trial’ and an order for a retrial or a new trial or trial de novo which is an order that the whole case be retried or tried or tried de novo or tried anew as if no trial whatsoever had been had, in the first instance, should be made by the appellate Court.
The Supreme Court clarified its earlier stand in Kajubo (supra) in the subsequent case of Adamu Hassan v F.R.N. (2017) 6 NWLR (Pt.1560) 64 at 82 per the lead judgment prepared by Rhodes-Vivour, J.S.C., that a retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure; and that where, however, there has been no trial the proceedings are vitiated ab initio and considered null and void, in which case the proper order to make is not an order of retrial but a fresh trial relying on the case ofYahaya v State (2002) 3 NWLR (Pt.754) 289. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the High Court of Justice of Rivers State (the lower Court) whereby it non-suited the appellant on his action for a declaration of title to land, damages for trespass and perpetual injunction against the respondent.

The facts of the case from the angle of the appellant were that he purchased the disputed strip of land located at No. 13 Vhed Street, Amadi-Ama and executed a deed of conveyance with survey plan attached to it by the vendor in his favour. That the respondent viet armis or by force of arms trespassed into the plot of land and placed it under the watch of cohorts or thugs upon which the appellant after exhausting domestic arbitration in his favour without the respondent yielding ground filed an action at the lower Court in the manner summarized (supra).

The respondent’s version was that he initially made part payment for purchase of the land which was jettisoned by the Amadi Community leaders on the ground that the vendor had no title to pass, it being communal land upon which the respondent re-purchased the land from the community leaders of where the communal land is situate.

The lower court held in its judgment contained in pages 75-82 of the record of appeal (the record) that the deed of conveyance, upon which the appellant based his case, was unregistered and therefore mere production of same did not automatically prove title to land, more-so the land was communal; that the source of title of the vendor ought to have been established by calling a Dr. E.S. Amadi and a Mr. Hector Iringe Koko as witnesses in that regard; and that the identity of the land was in dispute; upon which the lower Court concluded in its judgment that since the facts were insufficient and inconclusive to enter judgment for the appellant, it would non-suit the appellant and the lower Court accordingly non-suited the appellant.

The appellant was dissatisfied with the judgment of the lower Court and filed a notice of appeal with three (3) grounds contained in pages 83-85 of the record. The appellant’s amended brief of argument was filed on 18.01.19, but deemed as properly filed on 08.07.19, wherein it was contended that since the disputed plot of land was known to the disputants, proof of its identity was no longer in issue and that not having raised the issue of the identity of the land genuinely in his statement of defence, the ascribing of different names to a piece of land did not go to the issue of its identity, so the lower Court was wrong to hold that the identity of the land was challenged and/or put in issue in the case vide the cases of Akinyemi v Ojo (2011) 10 NWLR (Pt.1254) 188 at 203, Chukwueke v Okoronkwo (1999) 1 NWLR (Pt.587) 410 at 422.

The appellant argued that having established the title to the disputed land by production of document of title, the deed of conveyance, the lower Court was wrong to hold that the appellant needed more facts in proof of title to the land as the unregistered deed of conveyance established equitable title to the land which is one of the five possible methods of proving title to land vide the cases of Alli v Alesinloye (2000) 6 NWLR (Pt.660) 177 at 201-202, Oyekola v Marinho (2000) 9 NWLR (Pt.6710 77, Okoye v Dumez Nig. Ltd. (1985) 1 NWLR (Pt.4) 783 at 790; and that having presented a contradictory case from the pleadings and evidence the respondent’s case therefore failed vide the cases of Egbuta v Onuna (2007) 10 NWLR (Pt.1042) 298 at 311, Mobil Producing (Nig.) Unlimited v Umenweke (2002) 9 NWLR (Pt.773) 543 at 561.

The appellant argued that as the order or non-suit was entered by the lower Court without affording the parties the opportunity to be heard on it, the error occasioned a miscarriage of justice vide the case of Adusei v Adebayo (2012) 3 NWLR (Pt.1288) 534 at 551.

The appellant argued that as the lower Court did not make use of the evidence adduced by the appellant and the evidence of the respondent did not support his case, the order of non-suit was perverse and resulted in a miscarriage of justice vide the case of State v Ajie (2000) 11 NWLR (Pt.678) 434 at 499; upon which the appellant urged that the appeal be allowed and the order of non-suit set aside and judgment be entered for the appellant in terms of his claims at the lower Court.

The respondent submitted in the amended brief filed on 20.08.2019, but deemed as properly filed on 01.12.20, that the evidence disclosed that the appellant did not identify the disputed land with certainty as its identity was put in issue by the respondent, so, the lower Court was right to hold that insufficient evidence was led by the appellant on the identity of the land upon which the lower Court ought to have dismissed the appellant’s case vide the cases of Odiche v Chibogwu (1994) 7-8 SCNJ (Pt.11) 317 at 323, Olokunlade v Ademiloyo (2011) 15 NWLR (Pt.1269) 72 at 95, Akinyemi v Ojo (2011) 10 NWLR (Pt.1254) 188 at 203, Chukwueke v Okoronkwo (1999) 1 NWLR (Pt.587) 410 at 422.

The respondent argued in the amended brief that having not proved the validity of his title to the land, the lower Court should have dismissed the appellant’s case, especially as the land is communal and the appellant did not establish that he had exclusive possession over it vide the cases of Alli v Alisonloye (2000) 6 NWLR (Pt. 600) 177, Ojoh v Kamalu (2006) ALL FWLR (Pt. 297) 978 at 982, Falomo v Onakanmi (2006) ALL (Pt.298) 1242 at 1244, Chukwu v Amadi (2009) 3 NWLR (Pt.1127) 56 at 62-63.

The respondent argued that the findings of fact in the case did not run contrary to the evidence presented before the lower Court which had the opportunity to hear the oral evidence and watch the demeanour of the witnesses, therefore the findings of fact should not be disturbed, so urged the respondent who placed reliance on the cases of State v Ajie (2002) FWLR (incomplete citation), Nwosu v Board of Customs and Excise (1988) 5 NWLR (Pt.93) 255; upon which the respondent advocated that the appeal be dismissed.

The appellants filed an amended reply brief on 27.11.2020, but it was deemed as properly filed on 01.12.20, in which it was reiterated that the parties were ad idem on the identity of the land, therefore the appellant was relieved of the burden to prove the identity of the land vide the case of Akinterinwa v Oladunjoye (2000) 6 NWLR (Pt.659) 92 at 114.

The amended reply brief added that though Exhibits A and B, the deeds of conveyance, are registrable instruments, which were not registered, these documents proved equitable interest and by extension title to the land by production of documents of title placing reliance on the cases of Oyekola v Marinho (2000) 9 NWLR (Pt.671) 77 at 81, Okoye v Dumez Nig. Ltd. (1985) I NWLR (Pt.4) 783 at 790, Alli v Alesinloye (2000) 6 NWLR (Pt.660) 177 at 201-202.

The amended reply brief also added that the question whether the land in dispute belonged to the community was not raised and decided upon at the lower Court, consequently, the respondent should not have canvassed it in the brief placing reliance on the cases of Orjiekwe v Orjiekwe (2002) 6 NWLR (Pt.762) 31 at 46-47, Dantata and Sowoe Construction Co. (Nig.) Ltd. v Hassan (2001) 5 NWLR (Pt.705) 129 at 135.

The amended statement of defence is contained in pages 16-18 of the record. Paragraphs 3-4, 8 thereof traversed that the respondent is the bona fide owner in possession of the land in dispute situate at No. 12B Vhed Street, Amadi-Ama, Port Harcourt which the appellant trespassed upon and which is “the subject of this suit” and has always been known as No. 12B Vhed Street, Amadi-Ama, Port Harcourt. Paragraphs 11-17 of the amended statement of defence narrated the dispute that gave vent to the litigation in respect of the land in dispute accusing one H.J. Iringe-Koko, of laying false claim of title over the same plot of land.

The respondent further traversed in paragraph 19 of the amended statement of defence that:
“The defendant will also at the trial show that the transaction between H.J. Iringe-Koko Esq. and the claimant as evidenced in the deed of conveyance dated 30/03/2000, and executed between the parties, is in respect of No.13 Vhed Street, Amadi-Ama which is built up house and does not in any way relate to No.12B Vhed Street, the subject matter of the suit and that conveyed by the community to the defendant. The defendant shall at the trial rely on the (1) Deed of conveyance and (2) a receipt issued to Mr. & Mrs. Abiye who are tenants of No. 13 Vhed Street, Amadi-Ama.”

The amended statement of defence read collectively and/or harmoniously, bears it out that the identity of the disputed land was put in issue or on the front-burner (so to speak) in the amended statement of defence. The issue went beyond ascribing different names or different numbers to the land as that alleged to belong to the respondent was built up with tenants and the one alleged to belong to the appellant was not built up. It is on that basis that I agree with the lower Court that the identity of the land was put in contest in the pleadings and required its proof with certainty such that a surveyor looking at its description would make an accurate survey plan of it. Had the respondent been on the same page or ad-idem with the appellant on the identity of the land, the survey plan of it in the conveyance might have sufficed to prove its identity.

The appellant therefore needed to have done more than the evidence tendered on his side in the case to meet the requirement that proof of the identity or dimension/boundaries of the disputed land with certainty must be discharged by the claimant as one of the pre-requisites to succeed in an action for a declaration of title to land.

The cumulative impact of the amended statement of defence read holistically therefore challenged or put in issue the title of the alleged vendor of the appellant who relied on a deed of conveyance obtained from the alleged vendor. The lower Court held that the appellant needed to have called the vendor(s) of the land to give evidence in the case and not having done so, the facts presented by the appellant were insufficient to predicate a declaration of title to the land in his favour. There is the case of Dosunmu v Joto (1987) 4 NWLR (Pt.65) 297 at 312, where the Supreme Court held per the judgment prepared by Oputa, J.S.C., (now of blessed memory) that where the title of the vendor(s) is challenged by the defendant, the claimant would be obliged to prove the title of the vendor. These were the considerations that made the lower Court to non-suit the appellant.

The threshold issue in the appeal centres on the order of non-suit entered by the lower Court in the case. The final written address of the respondent at the lower Court is contained in pages 51-63 of the record without the issue of non-suit as the respondent concluded in page 63 thereof with a prayer that the suit be dismissed, the appellant having failed to establish his title to the subject matter of the suit.

The appellant’s final written address at the lower Court is contained in pages 64-74 of the record in which the appellant did not ventilate the issue of non-suit but limited himself to the conclusion in page 74 thereof to the submission that he had established his case and was entitled to judgment.

The judgment of the lower Court which is contained in pages 75-82 of the record ended in these words:
“In totality, there are insufficient and inconclusive facts upon which this Court can determine this suit. In this light therefore I have no option but to non-suit this action. I accordingly non suit this action this 14th day of March, 2013. I make no order as to costs.” (My emphasis).

It is discernable (supra) that the parties were not afforded the opportunity to be heard before the lower Court entered an order of non-suit of the action. The grouse of the appellant is that by not giving the parties the opportunity to be heard on the issue of non-suit, the lower Court fell in error. Order 34 Rule 1 of the High Court of Rivers State (Civil Procedure) Rules, 2010 applicable to the lower Court provides:
“1. Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the Court, the Judge may suo motu or on application non-suit the claimant, but the parties’ Legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order.”
(My emphasis).
The phrase ‘but’ is used to introduce a word or phrase that contrasts with what was said before (Oxford Advanced Learner’s Dictionary, New 9th Edition page 203) in effect Order 34 Rule 1 of the rules of the lower Court (supra) empowers the lower Court on its own motion or suo motu raise the issue of non-suiting the claimant but before the order of non-suit is made by the lower Court, it shall, (a word of command, obligation or mandatory/compulsory connotation), give the legal practitioners representing the parties the right to make submissions about the propriety or otherwise of making such order. Rules of Court are designed for orderly conduct of the business of civil litigation for fair, just, cost-friendly, expeditious and/or quick dispensation of civil justice.
Rules of Court must not only be obeyed by the parties but also be obeyed by the Court vide the case of MC Investments Ltd. v Core Investments & Capital Markets Limited (2012) 12 NWLR (Pt.1313) 1 at 17 where the Supreme Court held that rules of Court are made to be complied with by the parties and the Court. See also the Supreme Court cases of Ighedo v Power Holding Company Nigeria PLC (2018) 9 NWLR (Pt.1623) 51, Williams v Hope Rising Voluntary Fund Society (1982) N.S.C.C. 36.
I think the lower Court was palpably fair in proceeding the way it did, else an adherence to strict foot-rule consideration of the case might have led to the termination of the case in grief. A non-suit being a final decision which decides that none of the parties has won the litigation but preserves the plaintiff’s right of another action on the same subject matter and the same issue vide Ugese v Siki (2007) 8 NWLR (Pt.1037) 452, appears to be some sort of soft landing in sensitive litigation like land dispute which would allow the parties or give room for the plaintiff to take another bite at the cherry (so to put).
In dealing with the amplitude of an order of non-suit, the Supreme Court held in the case of Ugbodume and Ors v. Abiegbe and Ors. (1991) 8 NWLR (Pt.209) that a non-suit means giving the plaintiff a second chance to prove his case and that the Court has to consider and balance whether the order of non-suit would be wronging the defendant, and on the other hand whether the dismissal of the case would be wronging the plaintiff. The Supreme Court added that a non-suit is not a favour to either side of the dispute and that it is not meant to rob or deprive a party of a technical success but is based on the foundation of justice itself that the door of the temple of justice should not be shut against a party who has not totally failed to prove his case and that its overall essence is to ensure that justice is done by affording the parties the opportunity for another trial. In other words, an order of non-suit can, and ought to be made when the plaintiff has not totally failed and where at the same time the defendant is not entitled to the judgment of the Court vide Efetiroroje v Okpalefe ll (1991) 5 NWLR (Pt. 193) 517.
The Supreme Court case of Adusei v Adebayo (supra) at 564 cited by the appellant relied on the Supreme Court cases of Craig v Craig (1966) 2 SCNLR 61, Osayi v Izozo (1969) 1 SCNLR 295 and Anyaduba v N.R.T.C Ltd (1992) 5 NWLR (Pt.243) 535 to hold (per the judgment prepared by His lordship, Peter-Odili J.S.C.,) that failure of the trial Court to allow the parties (or their counsel) to address it on the issue of non-suit which that Court raised suo motu was fatal to the order of non-suit it had made.
A non-suit produces the same result as a retrial which is that a plaintiff is allowed to re-litigate the issues in controversy, but before a non-suit can be entered the Court should first give the parties in the case the opportunity of being heard on the issue of non-suit vide the case of Olufosoye v Olorunfemi (1989) 1 NWLR (Pt.95) 26 following the cases of Ikoro v Safrap (Nig.) Ltd. (1977) 2 S.C. 123, Craig v Craig (1966) 1 ALL NLR 173, Aigbe v Edokpolor (1977) 2 S.C. 1, Omoregbe v Lawani (1980) 3-4 S.C. 108.
Although the pioneer Supreme Court case ofCraig v Craig and Anor (supra) (1966) NSCC 205 at 208 shows that the rule of Court considered in the case stipulated that the Court without the consent of the parties may non-suit the plaintiff, the Apex Court paused to observe that when the propriety of a non-suit has not been argued, if a trial Judge should think of entering a non-suit, it is desirable that the trial Judge should first ask counsel for the parties for their submissions.
By not affording the parties the opportunity to be heard before the order of non-suit was entered, the lower Court breached the right of the parties to fair hearing. The right to fair hearing being a fundamental right guaranteed by Section 36(1) of the 1999 Constitution, as altered, the infringement of it nullified the proceedings of the lower Court because denial of fair hearing is denial of Justice and it is a prejudice to any man to be denied justice and once the principles of natural justice like fair hearing violated in respect of any decision would have arrived at in the absence of the departure from the essential principles of justice and the decision must be declared to be no decision and the only remedy is to nullify the resulting proceedings vide the Supreme Court case ofAdigun and Ors. v The Attorney-General of Oyo State and Ors. (1987) 1 NWLR (Pt.53) 678.
Accordingly, I find substance in the appeal on the issue of not affording the parties the opportunity to be heard before the order of non-suit was entered by the lower Court which also breached the parties’ right to fair hearing enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered. I would allow the appeal on that ground.

The next step is the consequential order to make. The Supreme Court held in the case of Kajubo v State (1988) 1 NWLR (Pt.73) 721 that the distinction between a retrial, a new trial or a trial de novo or fresh hearing is neither essential nor substantial, nor material and that each is substantially a trial as each has the essential element of a trial-that is, the finding out by one examination, the truth of the point in issue or question in controversy between the parties whereupon judgment is given.
The Supreme Court added per the judgment prepared by Oputa, J.S.C., (of blessed memory) in pages 739-740 of the same law report that when a trial is declared a nullity, the effect is that, in law, not fact, the trial amounted to a ‘no trial’ and an order for a retrial or a new trial or trial de novo which is an order that the whole case be retried or tried or tried de novo or tried anew as if no trial whatsoever had been had, in the first instance, should be made by the appellate Court.
The Supreme Court clarified its earlier stand in Kajubo (supra) in the subsequent case of Adamu Hassan v F.R.N. (2017) 6 NWLR (Pt.1560) 64 at 82 per the lead judgment prepared by Rhodes-Vivour, J.S.C., that a retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure; and that where, however, there has been no trial the proceedings are vitiated ab initio and considered null and void, in which case the proper order to make is not an order of retrial but a fresh trial relying on the case ofYahaya v State (2002) 3 NWLR (Pt.754) 289.
In the present case, the trial though properly conducted, was vitiated by reason of an error in law or procedure with respect to non-compliance with the requirements of fair hearing under Order 34 Rule (1) of the rules of the lower Court read with Section 36(1) of the 1999 Constitution, as altered.
Accordingly, the appropriate consequential order to make in the circumstances of the case which I hereby make is for the setting aside of the decision of the lower Court and entering therefor an order of retrial of the case before the lower Court differently constituted to be designated by the Honourable Chief Judge of Rivers State. The parties are to bear their costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the Hon. Justice J. S. Ikyegh, the Presiding Justice of the Port Harcourt Division of the Court of Appeal, graciously obliged me with a copy of the draft judgment just delivered in this appeal, and in which he allowed the appeal on the ground that the lower Court failed to comply with the provision of Order 34 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010 when it came to the decision to make an order of non-suit against the appellant who was the Claimant in the lower Court.

Reading the well-reasoned decision by which the judgment of the lower Court was summarized and reviewed, I really do not have any useful additions to make that can develop the consideration and resolution of the appeal better than the comprehensive decision reached to set aside the judgment of the lower Court having been adjudged to have breached the Constitutional right to fair hearing against the appellant, and by logical extension of the respondent whose goal was to get the appellant’s suit in the lower Court dismissed, rather than an order to non-suit the appellant who was graciously granted another opportunity to have a second bite at the cherry with the attendant costs and possible inconvenience.

I agree with the said decision and I abide by the order made directing both parties to bear their costs as the case is being remitted to the lower Court to be re-assigned by the Chief Judge of Rivers State and be heard de novo by another Judge of the Court.

Appeal is allowed for the well reasoned judgment of my learned brother, J. S. Ikyegh, the Presiding Justice of the Court of Appeal, Port Harcourt Division.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I read in draft, the lead judgment just delivered by my learned brother, Joseph Shagbaor Ikyegh JCA. I entirely agreed with his reasoning and conclusion. I have nothing tangible to add. The decision of the lower Court is set aside and a retrial ordered.