MR. OVUZORIE MACAULEY & ORS V. MR. JOHN ATA & ORS (2013)

MR. OVUZORIE MACAULEY & ORS V. MR. JOHN ATA & ORS

(2013)LCN/6317(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of June, 2013

CA/B/298/2005

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. MR. OVUZORIE MACAULEY
(Commissioner for Special Duties)
2. THE ACCOUNTANT-GENERAL OF DELTA STATE
3. THE ATTORNEY-GENERAL OF DETTA STATE Appellant(s)

AND

1. MR. JOHN ATA
2. MR. CIVILISED EBITOMOR
3. MR. SAMSON ZARIA
4. JOYCE ENGOBO
5. EBIEMIEYE TIETIE
(For themselves and on behalf of Ijaw War Refugees affected by the Eviction Order) Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the bedrock upon which an action rests for its determination. It is said to be a threshold issue because it is both intrinsic and extrinsic to adjudication. It is like the propeller in a motor vehicle which carries the automotive power from the engine to the tyres before the motor vehicle can move. The authorities of the apex court and this court on the importance of jurisdiction to the process of adjudication are a basketful. The apex court, most recently in Alims Nig Ltd V. United Bank for Africa Plc (2013) 6 NWLR (pt.1351) 613 at 626; (2013) 1 SCNJ 1 at 12 per my Lord Fabiyi, JSC reiterated its importance again, inter alia:
“Jurisdiction is very fundamental. It should be determined at the earliest opportunity when raised. If a court had no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Oloba V. Akereja (19881 3 NWLR (pt.84) 508.”
Also See: Goldmark V. Ibafon (2012) 3 SCNJ (pt.II) 565 at 597; Fed. Airports Authority of Nig. Ltd V. Sylvester Nwoye (2012) 16 WRN 154 at 184; Bronik Motors Ltd & Anor. V. Wema Bank Ltd. (1983) 1 SCNLR 296; Utih & Ors V. Onoyivwe & Ors. (1991) 1 SCNJ 25 at 49. PER YAKUBU, J.C.A.

FACTOR TO DETERMINE WHETHER A TRIAL COURT HAS THE JURISDICTION TO ENTERTAIN AND DETERMINE AN ACTION FILED BEFORE IT

WHETHER OR NOT RULES OF COURT MUST BE OBEYED

In General Oil Ltd V. Sunday Oduntan & Anor (1990) 7 NWLR (pt.153) 423 at 441, his Lordship, Niki Tobi, JCA (as he then was) in circumstances such as here, admonished thus:
“Rules of court, like rules of a game are meant to be obeyed of course, that is why they are written. There should be no argument about that. But there is a but and it is that obedience of rules cannot and should not be slavish to the point that the justice of the case is destroyed or thrown over board. The greater barometer, as far as the eagle eyes of the public are concerned is whether justice, that elusive expression and very expensive commodity in the judicial process has been, done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which eventually hurts that rule, the court should be happy that it took that line of action in pursuance of justice. This court and indeed any other court for that matter, cannot myopically or blindly follow rules of procedure and fall into a mirage, and physically and mentally be absorbed and lost. No. That is not the proper thing to do. It is wrong.” PER YAKUBU, J.C.A.

THE PROCEDURE OF COMMENCING AN ACTION BY THE MODE OF ORIGINATING SUMMONS OR MOTION

The law is settled and has remained firm that the procedure of commencing an action by the mode of originating summons/motion was designed to deal with question of simple construction of documents and/or statutes or on the determination of facts which ex facie are not hostile and contentious between the parties. That is, it is to enable simple matters to be settled by the court without the expense of bringing an action in the usual and common way by the issuance of writ of summons. Hence, in matters which involves serious questions or disputations/controversies, it is best that such matters be determined by settling of pleadings by the parties to ventilate their positions fully in respect of the claim. Therefore trial courts should be wary of entertaining and determining contentious and hostile claims on originating summons/motions. S.A.I. Ossai V. Isaac Wakwah & Ors (2006) 2 SCNJ 1 at 43; Ajagungbade III V. Adeyelu II (2002) 9 WRN 9 or (2001) 16 NWLR (pt.738) 126; Olaoye V. Alegbe (1983) 2 SCNLR 35; N.B.N. v. Alakaja (1978) 9 – 10 SC 59; University of Lagos V. Aigoro (1991) 3 NWLR (pt.179) 376. PER YAKUBU, J.C.A.

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Delta State High Court of Justice, holden at Warri, dated 9th March, 2005.
The respondents as the plaintiffs had by way of an originating motion filed an action at the court below and sought the following reliefs:
“(i) Declaration that the money released, by the Governor of Delta state, Chief James Ibori via 2nd Defendant, for the payment of war refugees in abandon houses and those who built houses on parcels of land was not judiciously utilized by the 1st Defendant.
(ii) A Declaration that persons allegedly paid by the 1st Defendant are faceless, unknown and not among those to be paid.
(iii) An order directing the 1st Defendant to pay the Plaintiffs as directed by the government of Delta State.
(iv) Declaration that the eviction of the plaintiffs by the 1st Defendant is unlawful.”
An affidavit of 22 paragraphs was filed in support of the originating motion; with over L87 affidavits deposed to by various persons which were collectively marked as Exhibits A and B annexed to the affidavit in support of the originating motion.
The appellants, who were the defendants to the action, filed a Notice of Preliminary objection, which challenged the jurisdiction of the court below to entertain and determine the said action. The said Notice of Preliminary objection dated 26th January, 2005 says:
‘TAKE NOTICE that the Defendants/Applicants shall before or at the trial of this case raise Preliminary Objection that this Honourable Court lacks the jurisdiction to entertain this suit as same was wrongly commenced both in form and substance.
GROUNDS OF OBJECTION
1. The entire action was wrongly commenced by originating motion under Order 1 Rule 2(3) of the Defunct Bendel State High Court Civil Procedure Rules of 1988 Applicable to Delta state, without an enabling provisions either in the Rules or under any other written Law for the purpose.”
Learned counsel for the parties addressed the court below and in his ruling, the learned trial judge over-ruled the said preliminary objection, which led to this appeal.
The notice of appeal dated and filed on 21st March, 2005, contains two grounds of appeal, namely:
“a. The learned Trial Court erred in Law when he held that he had jurisdiction to hear and determine Suit No. M/134/2005 which was wrongly commenced by the Plaintiffs/Respondents vide by an originating motion.
PARTICULARS OF ERROR
i. The Plaintiffs/Respondents’ claim against Defendants/Appellants were for declaration.
ii. The High court (civil procedure) rules of Bendel state as applicable to Delta state makes it mandatory that commencement of declaratory actions shall begun (sic) by writ of Summons.
b. The learned Trial Judge erred in Law when she held as follows: that the Plaintiffs’ action therefore commenced via an originating motion is well taken care of, Order 2 rule if this rules as the defect if any will not amount to a fundamental defect which will render the action erroneously, defective.
PARTICULARS OF ERROR
i. The trial court cannot arrive at a just determination of the case unless and until pleadings are fully exchanged by the parties.
ii. Failure of the Plaintiffs/Respondents to commence their actions by writ of summons has a fundamental defect in the proceedings.
iii. The trial Court by over-ruling the preliminary objection and ordering that Plaintiff proceed with their action has occasioned miscarriage of Justice on the part of the Defendants/Applicants.”
See pages 206 – 207 of the record of appeal.
The appellants’ brief of argument dated 17th January, 2006 was filed on 18th January, 2005. It was settled by Mrs. T. O. Uloho, Director of Civil Litigation, Ministry of Justice, Delta State. In it, two issues were distilled from the grounds of appeal for determination, to wit:
“Whether or not a trial court has jurisdiction to entertain suit wrongly commenced by the plaintiffs.
Whether or not order 2 Rule 1 of the High Court Civil Procedure Rules 1988 of Defunct Bendel State as applicable to Delta State can cure suits or proceedings wrongly commenced or instituted by a plaintiff.
The respondents’ brief of argument settled by D. B. Bekederemo, Esq., of counsel, was dated and filed on 5th July, 2006. in it, a sole issue was formulated for determination, ES follows:
Whether the lower court can invoke its discretional power under Order Two Rule 2 of the Bendel State High Court Procedure (sic) rule of 1988 to assume jurisdiction over a law suit that was commenced with a wrong form of action?”
I have perused the grounds of appeal at the instance of the appellants and I am satisfied that the two issues formulated by the appellants’ counsel are apt for the determination of this appeal. The sole issue formulated by the respondents’ counsel is subsumed in the appellants’ two issues, aforesaid, which shall be considered and determined together.
Arguing issue 1, learned counsel to the appellants submitted that by virtue of Order 1(2) (e) of the Defunct Bendel State High Court Civil Procedure Rules, 1988, a claim for declarative reliefs shall be commenced by way of a writ of summons. And that by virtue of Order 1 Rule 2 (3) of the aforementioned 1988 Rules, a litigant can only commence an action by way of an originating motion if there is an enabling provision either in the 1988 Rules or any other written law requiring that an action can be begun by the mode of an originating motion. Learned counsel contended that there is no such rule or any written law requiring claims bordering on declaratory reliefs to be commenced by the mode of originating motion. It is his submission therefore that the only way of commencing an action for declarations under the 1988 Rules, is by the issuance of a writ of summons.
The appellants’ counsel further submitted that a court is competent to entertain a suit upon the fulfilment of certain conditions such as:
(i) That the court is properly constituted with respect to its members and their qualifications;
(ii) That the subject matter is within its jurisdiction;
(iii) That the action is initiated by due process;
(iv) That the condition precedent for the court to assume jurisdiction over the suit is fulfilled.
Learned counsel submitted that the condition to the assumption and exercise of the court’s jurisdiction, by commencing the action by way of writ of summons was not fulfilled by the respondents and that the plaintiffs were bound to obey the mandatory previsions of Order 1 Rule (2) (1) (a – e) of the 1988 Rules aforementioned. He referred to Okolo V. UBN Ltd (20041 115 LRCN 3186 at 3219; Oseyomon V. Ojo (1997) 52 LRCN 2068 at 2089. Therefore, according to appellants’ learned counsel, the failure of the respondents to commence their action by way of writ of summons in a claim for declarations, has robbed the court below of its jurisdiction to entertain and determine the action.
With respect to issue 2, appellants’ counsel submitted that the word “shall” used in order 1 Rule (2) (1) (a – e) is mandatory and a failure to comply with it is a fundamental error which goes to the root of the action. He refers to Adewumi V. A.G. Ekiti State (2002) 93 LRCN 412.
It is the further submission of appellants’ counsel that in view of the depositions in the respondents’ affidavit in support of the originating summons and the depositions in appellants’ counter-affidavit, which are very controversial and disputed, the mode of originating motion employed by the respondents did not bring out their claim into proper focus. He submitted that the disputed facts in the affidavit evidence of the parties can only be resolved and determined by the court if pleadings are fully exchanged by the parties and witnesses heard on it. He insisted that the appellants were not in a position to fully answer to the depositions in Exhibits A and B attached to the affidavit of the respondents, in support of the originating motion.
He urged that the ruling of the court below be set aside and that the respondents’ suit be struck out.
Learned counsel to the respondents, not unexpectedly and arguing per contra, submitted that the form in which an action can be commenced is determined not only by Order 1 Rule 2 of the 1988 Rules of Bendel State High Court Civil Procedure Rules, but also by the facts and circumstances of any particular case. It was his submission too that even if the respondents’ action was improperly commenced, the court below had the discretionary power to treat the failure of the respondents to commence the action by writ of summons, as a mere irregularity.
Respondents’ counsel, furthermore submitted that the suit cannot be struck out on the ground that it did not comply with the 1988 Rules of the court below and that the appellants must prove that:
(a) The non-compliance with Order 1 Rule 2 (1) of the aforementioned High Court Civil Procedure Rules 1988 by the respondents had occasioned a miscarriage of justice.
(b) The defect (as to form) is so fundamental that it cannot be cured by Order 2 Rule 1 of the aforesaid 1988 Rules.
(c) As a result of the defect, this appellate court has no other alternative than to order a strike of the respondents’ suit.
(d) This court cannot exercise its general power under Section 17 of the Court of Appeal Act, re Cap. 75 Laws of the Federation of Nigeria,2004 to order exchange of pleadings.
Learned counsel to the respondents submitted that the above itemised queries were not answered or proved by the appellants. He however conceded that the depositions in the affidavit evidence of the parties are in conflict and that the law is that the court should call for oral evidence to resolve the said conflicts.
Respondents’ counsel referred to Order 2 Rule 1(1) of the 1988 Rules of the court below and submitted that the learned trial judge was right to have invoked it when he said that the failure to comply with Order 1 Rule (2) (1) of the 1988 Rules was a mere irregularity which did not render the respondents’ suit and the proceedings on it null and void. He referred to Oyekanmi V. NEPA (2001) FWLR (pt.34) 413.
Furthermore, it was the contention of respondents’ counsel that where a court has the discretion to do something, and he so exercised it and stating clearly the reasons for it, its discretion cannot be faulted. He placed reliance on Lenas Fibreglass Ltd. V. Furtado (1997) 5 NWLR (pt.504) 226; Federal Polytechnic Idah V. Onigie (2003) FWLR (pt.146) 934; Famfar Oil (Nig) Ltd V. Attor, Gen. Federation (2003) FWLR (pt.184) 199.
He urged that the appeal be dismissed and that pleadings be ordered to be exchanged between the parties for the hearing and determination of the action.
RESOLUTION OF ISSUES
Jurisdiction is the bedrock upon which an action rests for its determination. It is said to be a threshold issue because it is both intrinsic and extrinsic to adjudication. It is like the propeller in a motor vehicle which carries the automotive power from the engine to the tyres before the motor vehicle can move. The authorities of the apex court and this court on the importance of jurisdiction to the process of adjudication are a basketful. The apex court, most recently in Alims Nig Ltd V. United Bank for Africa Plc (2013) 6 NWLR (pt.1351) 613 at 626; (2013) 1 SCNJ 1 at 12 per my Lord Fabiyi, JSC reiterated its importance again, inter alia:
“Jurisdiction is very fundamental. It should be determined at the earliest opportunity when raised. If a court had no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Oloba V. Akereja (19881 3 NWLR (pt.84) 508.”
Also See: Goldmark V. Ibafon (2012) 3 SCNJ (pt.II) 565 at 597; Fed. Airports Authority of Nig. Ltd V. Sylvester Nwoye (2012) 16 WRN 154 at 184; Bronik Motors Ltd & Anor. V. Wema Bank Ltd. (1983) 1 SCNLR 296; Utih & Ors V. Onoyivwe & Ors. (1991) 1 SCNJ 25 at 49.

In determining whether a trial court has the jurisdiction to entertain and determine an action filed before it, the court is duty bound to peruse the plaintiffs’ writ of summons and the endorsement containing the reliefs claimed or the originating summons/motion where the action was begun vide that mode and peruse the questions raised under it for determination with the declaration and/or injunctive reliefs prayed for by the plaintiffs. Merill V. Worldgate (20121 3 SCNJ (pt.II) 639 at 662; Nika V. Lavina (2008) 7 SCNJ 72 at 85; UBA Plc. V. BTKL Industries Ltd. (2006) 19 NWLR (pt.1013) 61 at 103; Ikine V. Edjorode (2002) FWLR (pt.92) 1775 at 1881; Adeloye V. Oyilola (1999) 4 NWLR (pt.598) 273; Adeyemi V. Opeyori (1976) 1 N.M.L.R. 149.
The originating motion with the declaratory reliefs sought by the respondents at the court below, have been reproduced earlier in this judgment. The provisions of Order 1 Rule 2 (3) of the Defunct Bendel State High Court (Civil Procedure) Rules 1988, applicable to Delta State at the time the respondents’ suit was instituted, is to the effect that actions bordering on prayers for declaratory reliefs must be commenced by the issuance of writ of summons. The said rule is as clear as crystal. Therefore, the respondents, in filing their suit were bound to follow the mandate given to them to do so, by commencing the action vide the issuance of a writ of summons, since the reliefs being sought by their action rests roundly on declarations. Undeniably, the respondents did not comply with the said rules of court when their action was commenced by originating motion. Now, Order 2 Rules 1 (1) of the same Defunct Bendel State High Court (Civil Procedure) Rules, 1988; provides that:
“Where in the beginning or purporting to begin any proceedings, or at any stage in the court of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order there.”
The respondents tenaciously cling to Order 2 Rule 1 set out above, in order to save their suit. The learned trial judge agreed with them. Hence, he exercised his discretion in their favour and held that:
“The court(s) have been enjoined to do substantial justice and not lean in favour of technicalities, especially where such technicalities or irregularities would not have occasioned a miscarriage of justice, it will not be set aside. The rules of court are hand made of justice. The rule are meant for the Courts and not the courts to be become slaves to the rules. A simple irregularity in the cause of proceedings that are competent and within the jurisdiction of the Court must be distinguished from an irregularity which render a proceeding manifesting incompetent. These simple irregularities may be waved aside; as it will not render proceedings null and void.”
See page 205 of the record of appeal.
I think I agree with him. The progressive and proactive trend now is the doing of substantial justice to the parties, particularly where the failure in filing some initiating processes in court such as the instant one is procedural.
In General Oil Ltd V. Sunday Oduntan & Anor (1990) 7 NWLR (pt.153) 423 at 441, his Lordship, Niki Tobi, JCA (as he then was) in circumstances such as here, admonished thus:
“Rules of court, like rules of a game are meant to be obeyed of course, that is why they are written. There should be no argument about that. But there is a but and it is that obedience of rules cannot and should not be slavish to the point that the justice of the case is destroyed or thrown over board. The greater barometer, as far as the eagle eyes of the public are concerned is whether justice, that elusive expression and very expensive commodity in the judicial process has been, done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which eventually hurts that rule, the court should be happy that it took that line of action in pursuance of justice. This court and indeed any other court for that matter, cannot myopically or blindly follow rules of procedure and fall into a mirage, and physically and mentally be absorbed and lost. No. That is not the proper thing to do. It is wrong.”
I had to reproduce the above dicta, in extenso because to my mind, it is progressively notable and I need say no more. I only need to opine that lawyers engaged in litigation which is a highly complex and technical aspect of legal practice should show more dexterity in bringing matters to court by the most appropriate mode prescribed by the rules of court. That would, indeed save the time of the court always consumed in determining preliminary issues.
All said, the Supreme Court also in recent decisions, admonished the courts to do substantial justice. See: Higrade Maritime Services Ltd. V. First Bank (Nig) Ltd. (1991) 1 SCNJ 110 at 123; Consortium M C 3632 V. National Electric Power Authority (19921 7 SCNJ (pt.1) 1 at 8 – 9 and Odife & Anor. V. Aniemeka (1992) 7 SCNJ (Pt.II) 337 at p. 350.
Nigerian courts have deliberately shifted away from the narrow technical approach to justice which characterised some earlier decisions of the courts on certain matters. Instead, they now pursue the course of doing substantial justice. Consortium MC 3632 Lot 4 Nigeria V. National Electric Power Authority (1992) 7 SCNJ (pt.1) at pp. 8- 9; Sylvanus Odife & Anor. V. Geoffrey Aniemeka & Ors. (19921 7 SCNJ (pt.II) 337 at p. 350.
The law is settled and has remained firm that the procedure of commencing an action by the mode of originating summons/motion was designed to deal with question of simple construction of documents and/or statutes or on the determination of facts which ex facie are not hostile and contentious between the parties. That is, it is to enable simple matters to be settled by the court without the expense of bringing an action in the usual and common way by the issuance of writ of summons. Hence, in matters which involves serious questions or disputations/controversies, it is best that such matters be determined by settling of pleadings by the parties to ventilate their positions fully in respect of the claim. Therefore trial courts should be wary of entertaining and determining contentious and hostile claims on originating summons/motions. S.A.I. Ossai V. Isaac Wakwah & Ors (2006) 2 SCNJ 1 at 43; Ajagungbade III V. Adeyelu II (2002) 9 WRN 9 or (2001) 16 NWLR (pt.738) 126; Olaoye V. Alegbe (1983) 2 SCNLR 35; N.B.N. v. Alakaja (1978) 9 – 10 SC 59; University of Lagos V. Aigoro (1991) 3 NWLR (pt.179) 376.
The efficacy and usefulness of originating summons is its simplicity and straightforwardness in timeoulsy dealing with and disposing off non-contentious suits, so that filing of pleadings is avoided or obviated. However, where affidavit evidence deposed to by the parties in an action commenced by originating summons/motion are largely on disputed or conflicting facts, the action is not to be struck out as contended by the appellants. That is not the law. In such a situation, the appellate court can order that pleadings be filed and exchanged between the parties and that the suit be determined on merits, which the trial court ought to have done, but did not do. Oba Adegboyega Osundade & Ors. V. Oba Jimoh O. Oyewunmi & Ors. (2007) 5 SCNJ LLG at 124; Fed. Polytechnic Idah V. Engineer A. Onoja (2003) 12 WRN 95; R.T. Briscoe Nig Plc. V. H. B. Adesida (2002) 52 WRN 90; Prof. Albert Ogunsola V. All People’s Party (APP) (2003) 9 NWLR (pt. 826) 462; Ezekiel Peters V. A. U. Jackson (2001) 49 WRN 118.
I have considered the submission of learned counsel to the appellants that since the affidavit evidence by both parties are seriously in conflict, the suit ought to be determined on pleadings to be exchanged between them and evidence led to prove the averments in the pleadings. I have no difficulty in agreeing with him. However, I do not agree with him that the respondents’ suit should be struck out.
I, therefore resolve the two issues in the appeal in favour of the respondents. The appeal fails. The ruling of the learned trial judge dated 9th March, 2005 is affirmed.
It is noteworthy that at the hearing of this appeal on 13th May, 2013, S. O Monye, Esq., learned Director of Civil Litigation for the appellants, informed us that the substantive suit had already been heard and determined at the court below, during the pendency of this appeal. In the circumstances it is otiose to invoke the general powers of this court, by virtue of Section 15 of the Court of Appeal Act Cap. C. 36 Laws of the Federation of Nigeria, 2004 and order that the suit be tried on pleadings. It is unnecessary to do so now. All is well that ended well.
Each side shall bear its own costs of this appeal.

HELEN MORONKEJI OGNUWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother, TOM SHAIBU YAKUBU JCA. I am in complete agreement with his reasoning and conclusion that this interlocutory appeal has no merit whatsoever. Inspite of Order 1 Rule 1(2)(e) of the defunct Bendel State High Court Civil Procedure Rules 1988, a claim for declaratory reliefs shall be commenced by writ of summons. However, the same rules in Order 2 Rule 1(1) provides that failure to begin the process may be treated as an irregularity and would not vitiate the process already begun by a wrong method. This is to save unnecessary time and expense in litigation and to avoid visiting the incompetence of counsel on the litigants. I am satisfied having considered the circumstances that the learned trial judge exercised his Lordships discretion properly in favour of the Respondents. The appeal is dismissed. No order as to costs.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal fails. The ruling of the lower court delivered on 9/3/2005 is affirmed by me for the same reasons as contained in the in the lead judgment. Furthermore, I abide by the order relating to costs, as made in the lead judgment.

Appearances

S. O. Monye, Esq., Director of Civil Litigation, Ministry of Justice, Delta State (with him: Mrs. R. O. Okonya, Senior State Counsel, Ministry of Justice, Delta State)For Appellant

AND

Ekhide Ehighelua, Esq., (with him: S. Alagun, Esq.)For Respondent