MOBIL PRODUCING (NIG) UNLIMITED v. AWAJI IRO ISO IBOT-OKPON MBABA(OYOROKOTO) FISHING CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LTD (2021)

MOBIL PRODUCING (NIG) UNLIMITED v. AWAJI IRO ISO IBOT-OKPON MBABA(OYOROKOTO) FISHING CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LTD

(2021)LCN/15199(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/261/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MOBIL PRODUCING NIGERIA UNLIMITED APPELANT(S)

And

AWAJI IRO ISO IBOT-OKPON MBABA (OYOROKOTO) FISHING CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED (SUING BY THEIR LAWFUL ATTORNEY ELDER ZACHEAUS ORON) RESPONDENT(S)

RATIO

MEANING OF JURISDICTION; WHEN CAN A COURT BE SAID TO BE COMPETENT

Jurisdiction is the power of a Court to try a case. If the Court has the power to try a case, logically every other issue to be tried would be submitted and accommodated and not excluded from the power of the Court to try the case. Jurisdiction means the authority which a Court has to decide matters that are litigated before it, or to take cognisance of matters presented in a formal way for its decision. – See Halbury’s Laws of England Vol. 10 4th Edition, para 715. Jurisdiction is the right in the Court to hear and determine the dispute between the parties – AJOMALE v. YADUAT (No. 1) (1991) 5 SCNJ 172 @ 176 per Karibi – Whyte, JSC. Jurisdiction is the limit imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought –A-G, LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) 552 SC. In the celebrated case of MADUKOLU v. NKEMDILIM (2006) 2 LC 208, (1961) NSCC (Vol. 2) 374, Bairamian F. J. stated the ingredients that are now known to determine the competence of a Court. He says: Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when: 1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. The case comes before the Court initiated by due process of Law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the Court is competent the proceedings are not a nullity. See also, TUKUR v. TARABA STATE (1997) 6 SCNJ 81, IHESI v. ARINZE (2007) 5 NWLR (Pt. 1027) 241; GOJI v. EWETE (2007) 6 NWLR (Pt. 1029) 72; A-G, KANO STATE v. A-G, FED. (2007) 6 NWLR (Pt. 1029) 164; DAIRO v. U.B.N. PLC (2007) 16 NWLR (Pt. 1059) 99; NASHTEX INT’L LTD. v. HABIB (NIG.) LTD (2007) 17 NWLR (1063) 308; DIAMOND BANK LTD. v. UGOCHUKWU (2008) 1 NWLR (Pt. 1067) 1; S.T.B PLC v. OLUSOLA (2008) 1 NWLR (Pt. 1069) 561; ANYOHA v. CHUKWU (2008) 4 NWLR (Pt. 1076) 31, AKINGBEHIN v. THOMPSON (2008) 6 NWLR (Pt. 1083) 270; OJO v. INEC (2008) 13 NWLR (Pt. 1105) 577. PER MOJEED ADEKUNLE OWOADE, J.C.A.

POSITION OF THE LAW AGAINST UNNECESSARY RESORT TO FAIR HEARING BY PARTIES WHO HAVE BAD CASES

In RAPHEAL UDE & ANOR. v. STATE (2016) 5-6 SC 1 @pp. 28 -29, the Supreme Court held: Finally, and this relates to the Appellant’s fourth issue. Learned Respondent’s counsel is right that the doctrine of fair hearing as provided for under Section 36 of the Constitution does not in the least suggest that Appellant’s case must willy-nilly be determined in his favour. All that doctrine requires is for the Appellant to be given a decision one way or another is taken by the Court. Both Courts below have not only granted to the Appellant that opportunity, but have also considered the case he represented in arriving on his guilt. Appellant’s fourth issue is thus resolved against him. Also, in the case of ADEBAYO v. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (Pt. 1085) pages 221 – 222, the Supreme Court per Tobi, JSC (of blessed memory) had this to say on the unnecessary resort to fair hearing by litigants; Learned counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of Law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision, ruling of the Federal High Court sitting at Uyo, Akwa Ibom State delivered by Honourable Justice F. O. Riman on 6th July, 2017.

By a writ of summons and statement of claim of 27/9/2016, the Respondent as plaintiff claims damages for negligence from the Appellant as follows:
WHEREFORE the Plaintiff claim from the Defendant as follows:
(a) SPECIAL DAMAGES
(I) Direct Losses:
(a) Fishing Net – N149,100,000.00
(b) Local Boat – N7,500,000.00
(c) Fishing Accessories N88,235,000.00
(d) Fish Feeds N7,795,000.00
(e) Loss arising from fish ponds N131,200,000.00
(f) Replacement of fish ponds N3,750,000.00
Sub Total N387,580,000.00
(II) Indirect Losses:
(a) Loss arising from fishing N1,968,000.000.00
(b) Loss arising from bottom sediment N98,400,000.00
Disturbance N439,520,000.00
Sub Total N2,505,920.000.00
Grand Total N2,893,500,000.00
(c) General damages in the sum of N500,000,000.00 Million as a fair and adequate compensation for the damages now visited on the Plaintiff.

On 15/12/2016, the Appellant/Defendant/Applicant brought a motion on notice for an order “dismissing or striking out the Plaintiff’s Respondent’s suit”. The grounds upon which the said Appellant’s application were based are as follows:
a. That the Plaintiff’s claims for special damages are the basis upon which this suit was instituted and same was not particularized in the Plaintiff’s pleadings as required by Law.
b. That the failure of the Plaintiff to particularize the claim for special damages amounts to a breach of the Defendant/Applicant’s right to fair hearing.
c. That the action of the Plaintiff is premised on negligence; and that negligence is a cause of action and not a head of claim.
d. That the Plaintiff’s cause of action premised on negligence is not supported by detailed and sufficient particulars.
e. That the Plaintiff having failed to particularize the special damages in its Statement of Claim as held by the Supreme Court in NWANJI v. COASTAL SERV. (NIG.) LTD. (2004) 11 NWLR (Pt. 885) has no reliefs capable of being granted before the Court and thereby robs the Court

of the jurisdictional vires to entertain the suit.
AND ALSO TAKE FURTHER NOTICE that the Defendant/Applicant shall at the hearing of this application seek leave of Court to rely on all processes/papers filed by parties in the suit including the Defendant’s Memorandum of Conditional Appearance and Statement of Defence.

Written addresses were filed and exchanged on the Appellant’s motion on notice. The learned trial judge found no merit in the Appellant’s application and accordingly dismissed same. Learned trial judge agreed with the Defendant/Applicant/Appellant that claims for special damages must be particularized but insisted that evidence must be heard to determine the issue raised by the Defendant/Applicant/Appellant. This, he said, is because pleadings do not constitute evidence and “this Court cannot at this stage comment on the substantive case or (sic) on issues that are likely to come up at the main trial…..”

Dissatisfied with the above ruling, the Appellant filed a Notice of Appeal containing two grounds of appeal on 13/7/2017. The relevant briefs of arguments are:

Appellant’s brief of Argument dated 28/8/2017 but filed on 29/8/2017. It is settled by Ituah Imhanze.
2. Respondent’s brief of Argument filed on 27/1/2021 but deemed filed on 1/3/2021. It is settled by K. O. Uzoukwu, Esq.
3. Appellant’s Reply brief of Argument filed on 24/2/2021 but deemed filed on 1/3/2021. It is settled by Ituah Imhanze.

Learned counsel for the Appellant nominated two (2) issues for determination of the appeal. They are:
1. Whether the lower Court was right in failing to dismiss the Respondent’s suit after agreeing with the Appellant that particularization of claims for special damages and headings of negligence are condition precedent to the competence of the Respondent’s suit? (Ground 1)
2. Whether the lower Court was right when it dismissed the Appellant’s Motion on Notice dated December 14, 2016 on the ground that determining the issues canvassed in the said Motion on Notice would amount to determining the substantive issue at a preliminary stage (Ground 2).

Learned counsel for the Respondent formulated a sole issue for the determination of the appeal thus:
Whether or not the trial

Court’s refusal to dismiss the Respondent’s suit in limine pursuant to the preliminary objection of the Appellant was right under the circumstances of the case, on the grounds that it would amount to determining the substantive issue that requires hearing of evidence at a preliminary stage?(GROUNDS 1 & 2)

Learned counsel for the Appellant tied his issues 1 and 2 to lack of fair hearing and lack of jurisdiction by the Court below. The Appellant contends that it was not given fair hearing when the lower Court failed to proceed to sufficiently determine the issues raised in the Appellant’s motion on notice dated December 14, 2016, having already agreed with the submission of the Appellant based on the Supreme Court authority in R.C.C (NIG.) LTD. v. R.P.C. LTD. (2005) 10 NWLR (Pt. 934) 637 where it was held that “a claim for special damages must be specifically pleaded……”

He added, referring to the cases of AFRO-CONT. LTD. v. CO-OP. ASSO. OF PROF. INC. (2003) 5 NWLR (Pt. 813) 303 @ 317; ILOEGBUNAM v. OBIORA (2012) 4 NWLR (Pt. 1291) 405 @ 409, 444-445; BRAWAL SHIPPING (NIG.) LTD. v. F. I. ONWADIKE CO. LTD.

(2000) 11 NWLR (Pt. 678) 387 @ 403 that a Court must make a decision and pronounce on every issue in an application which is placed before it and that failure to do so is a breach of fair hearing.

Appellant’s counsel insisted that the decision of the trial Court in dismissing the Appellant’s motion on notice dated December 14, 2016 after considering but not pronouncing on the issue raised therein on the Respondent’s failure to particularize their claim of special damages is a breach of the Appellant’s right to fair hearing and ought to be set aside.

Learned counsel for the Appellant referred to the cases of ALHAJI AHMADU GARI v. SEIRAFINA NIGERIA LIMITED & ANOR (2008) 2 NWLR (Pt. 1070) 1 @ 12-20-; ABI v. C.B.N. (2012) 3 NWLR (Pt. 1286) 42; NZUBE ANAZODO v. PAZMECK INTERTRADE NIGERIA & ANOR (2008) 6 NWLR (Pt. 1084) 529 @ 547; NWANJI v. COASTAL SERV. (NIG.) LTD. (2004) 11 NWLR (Pt. 885) 552 @ 568. All in support of the proposition that a plaintiff claiming special damages has an obligation to plead and particularize any item of damage which must be strictly proved.

Appellant’s counsel reasoned that the failure

of the Plaintiff/Respondent to particularize special damages leads to springing of surprise in pleadings and consequently breach of fair hearing.

More specifically on Issue No. 2, the Appellant further contends that the Court below was wrong in failing to consider issues raised in the Appellant’s motion on notice of December 14, 2016 and failed to consider the Supreme Court’s decision in JAMANG SHELIM & ANOR v. FWEDIM GOBANG (2009) 12 NWLR (Pt. 1156) 435 @ 459-460 where it was held as follows “once a party raises an objection to the non-compliance with a condition precedent to the exercise of the Court’s jurisdiction, it is for the Court seised of the proceedings to examine the objection and determine whether it can adjudicate on the matter”.

After referring to several cases to show that jurisdiction is the key element to all adjudication, Appellant’s counsel submitted that the questions raised by the Appellant’s motion on notice dated December 14, 2016 are issues that raise doubt over the jurisdiction of this suit which ought to be addressed before the suit can be properly adjudicated.

He concluded that the trial Court was in error for failing to make a pronouncement on the Respondent’s failure to satisfy the legal requirement of pleading particulars of negligence without adducing sufficient and detailed particulars.

He added that the trial Court ought to have granted the prayer of the Appellant by striking out the matter, the Respondent not having a competent/valid response to the said motion on notice before the trial Court.

Learned counsel for the Respondent attended to the two issues nominated by the Appellant in his treatment of his sole issue. Learned counsel for the Respondent defended the ruling of the trial Court. He submitted that the contention of the Appellant on particularization of damages under the circumstances of this appeal is vague and therefore not backed by the Law.

He reminded us that the Respondent claimed tortuous liability encompassing special and general damages, that both are awarded at the same time and where special damage is not proved, general damages have been awarded as the case may be. On this, he referred to the cases of NEW NIGERIAN BANK PLC. v. DENCLAG LTD. (2004) ALL FWLR (Pt. 228) 606 @ 653;

YA’U v. DIKWA (2001) FWLR (Pt. 82) 1987; NGILARI v. MOTHER CAT LTD. (1999) 73 LRCN 3420 @ 3469.

Learned counsel for the Respondent then asked the question: can a preliminary objection be used to strike out a case when the issues are not on Law? He answered in the negative. He emphasised that negligence is a question of fact and not law and, that if facts exist which must first be adduced in or established to enable a point of law to be sustained, the preliminary objection may not properly be taken. On this, he referred to the cases of WOHEREM v. EMEREUWA (2004) 120 LRCN 4752 @ 4769; BANJO & ORS. v. ETERNAL SACRED ORDER OF CHERUBIM AND SERAPHIM (1975) 3 SC 37.

Relatedly, but on another wicket, learned counsel for the Respondent submitted that the Appellant’s application having been entertained and pronounced upon by the trial Court, it cannot be said that she was denied fair hearing. That in the instant case, at the trial Court which was the stage of an interlocutory application, the condition to be ascertained on claim for denial of fair hearing is whether the Appellant’s motion on notice of 15th December, 2016 was heard and

determined.

He referred to the cases of RAPHAEL UDE & ANOR. v. STATE (2016) 5-6 SC 1; ADEYEMI v. STATE (2011) 5 NWLR (Pt. 1239) 1 @ 40; ADEBAYO v. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (Pt. 1085) 221-222; DUKE v. GOVT., CRS & ORS (2013) 222 LRCN (Pt. 1) 90 @ 109 and submitted on the strength of the cases that the Appellant must not have the decision of the trial Court go in her favour before it can be said that it was given fair hearing.

In any event, said counsel, the non-particularization of special damages can only be determined after the case must have been heard and judgment delivered refusing the claim on special damages. That it was therefore premature on the part of the Appellant to complain on the decision of the trial Court.

He submitted that documents pleaded in pleadings form part of the pleadings. And, it is only by evidence in Court that the Court will decide whether special damages was properly pleaded and not before then. He referred to the cases of ABDULAHI v. THE MIL. ADMIN (2011) 197 LRCN 187 @ 200; SIFAX NIG. LTD. v. MIGFO NIG. LTD & ANOR. (2019) 288 LRCN 163 @ 213; BRAWAL SHIPPING v. ONWADIKE (2000) 79

LRCN 2348 @ 2370.

Learned counsel for the Respondent reasoned that assuming but not conceding that the special damages was not pleaded under the circumstance of this case, the suit can still be maintained and general damages recovered and therefore relying on special damages alone as a basis to dismiss the case is not applicable in tortuous liability claims. He referred on this to the case of CHIEF BALOGUN v. ALH. AMUBIKAHUN (1985) 3 NWLR (Pt. 11) 27.

He further justified the refusal of the learned trial judge to adopt a “short cut” approach to dismiss the Respondent’s case in limine by reminding us of the need for trial judges to be circumspect in determining the main or substantive case while ruling on interlocutory applications in the interest of justice and to avoid technicality. He referred to the case of ADEBAYO v. T.S.G. (NIG.) LTD. (2011) 4 NWLR (Pt. 1238) 493 @ 508; AGWU v. JULIUS BERGER (NIG.) PLC. (2019) 11 NWLR (Pt. 1682) 165 @ 188 – 189; AGBAJE v. IBRU SEA FOODS LTD. (1972) 5 SC 50.

He further referred to the cases of AKPAN v. BOB & ORS. (2011) 193 LRCN 78 @ 141; FAMFA OIL LTD. v. ATTORNEY GENERAL FEDERATION

(2003) 18 NWLR (Pt.852) 453 to demonstrate that the Courts abhor technical justice and concluded that the Appellant’s application to strike out the Respondent’s case was strange when evidence had not been taken on the issues of special damages and therefore premature.
He urged us to dismiss the appeal.

RESOLUTION OF ISSUES 1 AND 2
In resolving Appellant’s issues 1 and 2, it is pertinent to borrow the language of the learned counsel for the Respondent that the “Appellant’s application to strike out the Respondent’s case was strange when evidence had not been taken on the issues of special damages ….“

I think, it is even a total misapprehension and misconception of Law for the learned counsel for the Appellant to say that the trial Court was in error and lacked jurisdiction for his refusal to strike out the Respondent’s claims in limine simply on the allegation that special damages was not particularized.
Jurisdiction is the power of a Court to try a case. If the Court has the power to try a case, logically every other issue to be tried would be submitted and

accommodated and not excluded from the power of the Court to try the case. Jurisdiction means the authority which a Court has to decide matters that are litigated before it, or to take cognisance of matters presented in a formal way for its decision. – See Halbury’s Laws of England Vol. 10 4th Edition, para 715. Jurisdiction is the right in the Court to hear and determine the dispute between the parties – AJOMALE v. YADUAT (No. 1) (1991) 5 SCNJ 172 @ 176 per Karibi – Whyte, JSC.
Jurisdiction is the limit imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought –A-G, LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) 552 SC.
In the celebrated case of MADUKOLU v. NKEMDILIM (2006) 2 LC 208, (1961) NSCC (Vol. 2) 374, Bairamian F. J. stated the ingredients that are now known to determine the competence of a Court. He says:
Before discussing those portions of the record, I shall make some observations on

jurisdiction and the competence of a Court. Put briefly, a Court is competent when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of Law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the Court is competent the proceedings are not a nullity.
See also, TUKUR v. TARABA STATE (1997) 6 SCNJ 81, IHESI v. ARINZE (2007) 5 NWLR (Pt. 1027) 241; GOJI v. EWETE (2007) 6 NWLR (Pt. 1029) 72; A-G, KANO STATE v. A-G, FED. (2007) 6 NWLR (Pt. 1029) 164; DAIRO v. U.B.N. PLC (2007) 16 NWLR (Pt. 1059) 99; NASHTEX INT’L LTD. v. HABIB (NIG.) LTD (2007) 17 NWLR (1063) 308; DIAMOND BANK LTD. v. UGOCHUKWU (2008) 1 NWLR (Pt. 1067) 1;

S.T.B PLC v. OLUSOLA (2008) 1 NWLR (Pt. 1069) 561; ANYOHA v. CHUKWU (2008) 4 NWLR (Pt. 1076) 31, AKINGBEHIN v. THOMPSON (2008) 6 NWLR (Pt. 1083) 270; OJO v. INEC (2008) 13 NWLR (Pt. 1105) 577.
In the instant case, there is no question that allegation of failure of the Respondent to particularize special damages in his claims constitutes a feature in the case which prevents the Court from exercising his power to try the case or created a condition precedent to the Court’s jurisdiction to hear and determine the dispute between the parties and for that same reason cannot be a ground to prevent the Court from exercising his jurisdiction over the Respondent’s claims.
The failure, if any, of a Plaintiff to particularize special damages is not an issue of jurisdiction but an issue to be dealt with on hearing evidence from the pleadings submitted by the parties.

Similarly, the Appellant in this case cannot be heard in any of the circumstance herein to complain of a denial of fair hearing. The learned trial judge entertained the Appellant’s motion on notice, agreed with the decided authorities relied upon by the Appellant that special damages

must be particularized and strictly proved but declined the request of the Appellant that the Respondent’s case ought to be struck out on that account. Rather, that the matter and effect of the Appellant’s allegation of lack of particularization of special damages would only be taken after evidence must have been heard in the case. In this circumstance, except the Appellant is saying that fair hearing means the issue must be decided in his favour, there is actually no issue of fair hearing to be considered here.
In RAPHEAL UDE & ANOR. v. STATE (2016) 5-6 SC 1 @pp. 28 -29, the Supreme Court held:
Finally, and this relates to the Appellant’s fourth issue. Learned Respondent’s counsel is right that the doctrine of fair hearing as provided for under Section 36 of the Constitution does not in the least suggest that Appellant’s case must willy-nilly be determined in his favour. All that doctrine requires is for the Appellant to be given a decision one way or another is taken by the Court. Both Courts below have not only granted to the Appellant that opportunity, but have also considered the case he represented in arriving

on his guilt. Appellant’s fourth issue is thus resolved against him.
Also, in the case of ADEBAYO v. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (Pt. 1085) pages 221 – 222, the Supreme Court per Tobi, JSC (of blessed memory) had this to say on the unnecessary resort to fair hearing by litigants;
Learned counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there.
They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user.
It is not a casual principle of Law available to a party to be picked up at will in a case and force the Court to apply

it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.

In the instant case, the learned trial judge was right when in determining the Appellant’s application first at page 156 of records that:
….. this Court will not adopt a short cut approach to attain justice without regard to due process of Law which demands that every issue in contention shall be properly addressed and the contending parties given the opportunity to properly ventilate their grievance with the aim of avoiding miscarriage of justice.
And, concluded at page 157 of records:
This Court cannot at this stage comment on the substantive case or issues that are likely to come up at the main trial. It is for the foregoing reasons that I find no merit in this application and accordingly it is dismissed …..<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See ADEBAYO v. T.S.G. (NIG.) LTD. (2011) 4 NWLR (Pt. 1238) 493 @ 508; AGWU v. JULIUS BERGER (NIG.) PLC (2019) 11 NWLR (Pt. 1682) 165 @ 188 – 189; AGBAJE v. IBRU SEA FOODS LTD. (1972) 5 SC 50.

In the circumstance, Appellant’s issues 1 and 2 are resolved against the Appellant.
This appeal lacks merit and it is hereby dismissed.
N100,000.00 costs is awarded in favour of the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I am in agreement that the appeal lacks merit and should be dismissed. For the detailed reasons in the judgment, I too dismiss the appeal.
I abide by all the orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading the draft copy of the judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered.

I am in agreement with the reasoning and conclusion arrived at in the lead judgment that this appeal is devoid of merit and deserved to be dismissed
I accordingly dismiss it and abide by the consequential orders

including an order as to costs.

Appearances:

ITUAH IMHANZE, ESQ. For Appellant(s)

O. UZOUKWU, ESQ. For Respondent(s)