NZE DR. S.N. UGOJI, KSC & ORS V. ONUAWUCHI IWUAGWU (2012)

NZE DR. S.N. UGOJI, KSC & ORS V. ONUAWUCHI IWUAGWU

(2012)LCN/5652(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of November, 2012

CA/OW/95/2009

RATIO

CONSTITUTIONAL LAW: WHETHER AN INFRACTION OF THE CONSTITUTION CAN BE VIEWED AS MERE TECHNICALITY

I do not think it is right to view any infraction of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as mere technicality.

The Constitution is the grundnorm, the fons et origo of the lex corpus Nigeriana and any attempt to whittle down its authority on the excuse of legal technicalities would definitely not augur well for constitutional development and judicial precedent. I am fortified in this view by the idea that the construction of the provisions of the Constitution must be purposive and where the language of the Constitution is clear and unambiguous, it must be given its plain evident meaning. The need for a liberal and purposive interpretation of the provisions of the Constitution was memorably laid down by the Supreme Court in Nafiu Rabiu vs. The State [1981] 2 NCLR 293 at page 326 where Udo Udoma, JSC stated:

“—-that the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, learn to the broader interpretation, unless there is something in the or in the rest of the Constitution, to indicate that narrower interpretation will best carry out the objects and purposes of the Constitution. My Lords, it is my view that the approach of this court to the construction of the Constitution should be and so it has been, one of LIBERALISM, probably a variation of the theme of the general maxim ut res magis valeat quam pereat” PER MOJEED ADEKUNLE OWOADE, J.C.A

FAIR HEARING: NATURE OF FAIR HEARING

A fair hearing entails a fair trial. The question arises, can a trial be said to be fair in a situation of un-adopted, “non-existing” (but used) written addresses. My answer to this is in the negative.

It is well established that fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. In State vs. Onagoruwa (1992) 2 NWLR (part 221) 33 at 56 and 58, the Supreme Court per Karibi-White, JSC re-emphasized this principle when he said:

“It is only when the opponent has been heard that the judge would be seen as discharging the duty of an unbiased umpire. Learned counsel for the Respondent appears to consider the absence of miscarriage of justice as a consideration to ameliorate an infringement of a provision of fundamental human right. This is not the correct legal position. The violation of the rule of audi alteram partem per se lies in the breach of the fundamental human right. Once right is violated, it is irrelevant whether the decision made subsequent thereto is correct see Alhaji Umaru Abba Tukur vs. Government of Gongola State, (1989) 9 SCNJ 1, (1989) 4 NWLR (Part 117) 517.”

In Ariori vs. Elemo (1983) 1 SCNLR 1, the Supreme Could held that fair hearing involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It means a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter. PER MOJEED ADEKUNLE OWOADE, J.C.A

FAIR HEARING: ATTRIBUTES OF FAIR HEARING

More recently, in the case of Oged Ovunwo & 1 Anor. Vs. Iheanyi Chukwu Woko & Ors. (2011) 17 NWLR (Pt. 1277) 522 at 555, the Supreme Court (per Adekeye JSC) restated the basic attributes of fair hearing to include:-

(a) That the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.

(b) That the court or tribunal gives equal treatment, opportunity and consideration to all concerned.

(d) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

Usani vs. Duke (2004) 7 NWLR (Pt. 871) 116. Fagbule vs. Rodriguas (2002) 7 NWLR (Pt. 765) Pg.188. Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt. 622) Pg. 290. Awoniyi vs. The Registered Trustee of the Rosicrucian Order Amorc (Nigeria) (2000) 6 SC Pg. 1, 103. (2000) 10 NWLR (Pt. 676) 522. Okafor vs. A-G Anambra State (1991) 6 NWLR (Pt. 200) Pg. 569, Araka vs. Ejeagwu (2001) 5 WRN 1 SC, (2000) 15 NWLR (Pt. 629) 684. PER MOJEED ADEKUNLE OWOADE, J.C.A

APPEAL: WHETHER AN APPELLATE COURT CAN EXERCISE ITS DISCRETION TO ORDER A RETRIAL UNDER SPECIAL REASONS

An appellate court will exercise its discretion to order a retrial when particularly there has been a fundamental irregularity in the trial, among other reasons.

National Bank of Nig. Ltd. Vs. P.B. Olatunde Co. Nig. Ltd. (1994) 3 NWLR (Pt 334) pg. 512, Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Pan African Int. Incorporation & Ors. vs. Shoreline Lift Boats Ltd. & Anor. (2010) 6 N.W.L.R. (Pt. 1189) 98 at 113. PER MOJEED ADEKUNLE OWOADE, J.C.A

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. NZE DR. S.N. UGOJI, KSC

2. JOSHUA I. UGOJI

3. CALEB O. UGOJI (FOR THEMSELVES AND AS REPRESENTING THE MEMBERS OF MATHIAS IHEKAJI UGOJI’S FAMILY OF UMUNDULAR ORJI) – Appellant(s)

AND

ONUAWUCHI IWUAGWU – Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of C.M.I. Egole J. of the High Court of Imo State, sitting at Owerri delivered on the 10th day of November, 2008.

The Appellants herein were the plaintiff’s at the court below, while the Respondent was the defendant. By their Writ of Summons taken out on the 3rd day of June 2004, the Appellants as plaintiffs claimed as follows:

“(a) Declaration of the Honourable Court that plaintiffs are entitled to the Customary Right of occupancy to all that piece or parcel of land known as and called “ALA MILE TWO” which situates at Orji along Owerri/Okigwe Road, within jurisdiction.

(b) 2,000.00.00 general damages for defendant’s remorseless trespass into the aforesaid land in the month of April 2004.

(c) Perpetual injunction restraining the defendant by himself, his servants, agents or workmen from any further act or acts of trespass into the aforesaid land.”

Appellants as plaintiffs filed their Statement of Claim, as well as a reply to the defendant’s Statement of Defence.

Plaintiffs spoke through the 1st plaintiff. Their evidence started on 24/7/06. In addition, they called two other witnesses in support of their case.

On the other hand, the defendant called four witnesses. In all, a total of seven exhibits were tendered in evidence, six from the plaintiffs and one from the defendant.

The case of the plaintiffs is that their father Matthias Ihekaji Ugoji bought the land in dispute from the defendant’s grandfather called Iwuagwu Nkwoedeji in 1953. They tendered a receipt as “Exhibit P1” to show that money passed hand between the parties.

According to them, they have been in possession of the land since then without molestation by anyone including the defendant and his ancestors, until 2000 when the defendant broke into it without their consent, leave or licence.

On the other hand, the case of the defendant is that his grandfather merely handed over the land to the father of the plaintiffs for safe keeping when his father Joseph Udeakporo Iwuagwu went to the second world war.

At the close of the cases for the parties, both parties filed written addresses pursuant to the order of the court, through their counsel. Without giving the parties the opportunity to adopt their written addresses in the open court, the trial court proceeded to deliver judgment in the suit.

In his address before the court below, the defendant submitted four issues for determination, namely:-

“(i) has plaintiff proved the location and identity of the land in dispute?

(ii) should Exhibit P1 have been received in evidence?

(iii) Is Exhibit P1 a valid document cognizable in law?

(iv) have plaintiffs proved their case?”.

On the other hand, the plaintiffs submitted only one issue for determination, namely:-

“What was the nature of the transaction of 1953 between the plaintiff’s father and defendant’s grandfather?”

The trial court considered the above issues and after resolving the first three issues of the defendant in favour of the plaintiffs went on to enter judgment against the plaintiffs. In effect the trial court held that the plaintiffs did not prove their case.

Dissatisfied with the said judgment, the Appellant filed their Notice of Appeal, containing six grounds of appeal before this court on 21st November, 2008.

The Appellants brief of argument dated 18/9/09 was filed on 29/9/09. Respondent’s brief of argument dated 23/10/09 was filed on the same date.

The Appellants nominated the following issues for determination.

“1. Whether the trial court was right in relying on written addresses filed in the suit but not read or adopted in the open court, in its judgment.

2. Whether the trial court was right in treating “Exhibit P1″ tendered as a receipt as an instrument of title.

3. Whether the trial court appreciated the real issue in controversy between the parties in that suit.

4. Whether the trial court was right in holding that the plaintiffs did not prove their case at the court below.

5. Whether the judgment is against the weight of evidence.”

The respondent adopted the issues formulated by the Appellant. This appeal shall be decided on the issues formulated by the Appellant. Having gone through the record of proceedings and the briefs of arguments in this case, I consider it appropriate to first determine Appellant’s Issue No. 1. This is because, Appellant’s Issue No. 1 contains an allegation of procedural breach miscarriage of justice and fair hearing. And, also because the determination of the said issue may lead to the determination of the appeal itself.

Appellants Issue No. 1 is whether the trial court was right in relying on written addresses filed in the suit but not read or adopted in the open court, in its judgment.

Appellants issue No. 1 is based on their ground 1 of their Notice of Appeal which reads thus:

GROUND ONE:

Error in law:

The trial court erred in law by relying on written addresses filed in the suit but not read or adopted in the open court, in its judgment.

Particulars

“(a) The learned trial court ordered the parties in the suit to file written addresses, even though the filing of written addresses is unknown to the High Court Rules of Imo State.

(b) The parties complied with the order of court but the learned trial court did not give the parties any opportunity to read or adopt their addresses in the open court before judgment.

(c) By so doing, the trial court breached or infringed upon the constitutional provision that trials have to be conducted in the open or public.”

On lssue No. 1, learned counsel for the Appellant submitted that the defence in the suit closed on the 15th day of October, 2008, with the full cross-examination of the defendant himself, who testified as the DW4. That, on the same date, the trial court adjourned the suit for judgment after giving parties specific time within which to file their respective addresses. That, pursuant to the order of court, the defendant filed his address on 24th October, 2008, plaintiff filed his own address on 29th October 2008.

Counsel submitted that without giving the parties the opportunity to adopt their written addresses in the open court, the trial court proceeded to deliver judgment in the suit on the 10th day of November, 2008.

Counsel submitted that at the time the written addresses were filed and judgment delivered, the relevant High Court Rules operative in Imo State was the Imo State High Court (Civil Procedure) Rules, 1988.

That Order 37 Rules 22 of the said Rules provided as follows:

“Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced will be at liberty to address the court and the party beginning shall be entitled to the general reply”.

Chief E.T.C. Ogbusu of counsel to the Appellants submitted further that the filing of written addresses is unknown to the Imo State High Court (Civil Procedure) Rules, 1988, in that it did not make any provision for written addresses.

He submitted that even if the court ordered parties, for whatever reason, to file written addresses, the proper thing for the court to do is to give the parties opportunity to read or adopt their addresses in the open court before judgment. ;

Counsel referred to the case of Mikailu vs. State (2001) 8 NWLR (Pt.715) 469 at 484 where the Court of Appeal had this to say:

“The learned trial Judge did not take oral speeches of counsel in the open court. Rather the learned trial Judge ordered written addresses which were exchanged amongst counsel representing the parties in the matter before her. The addresses that were filed and exchanged upon the order of the court were not subsequently read in the open court. Can this be said to be in compliance with clear and unambiguous or unequivocal provisions of the Constitution? I do not think so. In the case of Ogaji vs. Arewa iles Plc. (2000) 11 NWLR (Pt. 678) 322, it was observed that the practice or procedure of submitting written addresses in the High Court is not known to any of those court’s procedure. It is however, becoming fashionable for the High Court to demand to be addressed in writing but this practice is not provided in either the various Civil Procedure rules or Criminal Procedure Laws applicable in the country. The learned Justice, however, entertained a forlorn hope that the practice would not result in a miscarriage of justice, little knowing then that it could have constitutional implications. In my respectful opinion, I do not think that the addresses exchanged by counsel and was not read in open court can be said to have met the demand of the provisions of the Constitution. At least the address stage cannot be held to be in public. It follows that the trial is not wholly in public.”

Counsel urged us to hold that the trial court erred in law by relying in its judgment on written addresses filed in the suit which were not read or adopted by the parties in open court. That, the failure of the trial court amounts to a breach of the constitutional provision that trials have to be conducted in the public or open.

In response to Issue No. 1, learned counsel for the Respondent submitted that on 15/10/08, the Honourable Court advised counsel to exchange addresses within a given period of time, then it adjourned for judgment.

Chief H. N. Duroha for the Respondent noted that Appellants did not object to this procedure which did not envisage a formal adoption of the addresses. He said it is also important to note that Order 37(22) or the then Imo State High Court (Civil Procedure) Rule, 1988 does not specify the exact nature of the address it envisaged – whether written or oral. He argued that it would be unduly restrictive for Appellants to say that the rules do not envisage written address. He urged us to hold that under the said Rules of Court, an address can be written or oral.

Learned counsel for the Respondent further submitted that parties did file (and pay for) their respective addresses and the same went into the file of the court. That, having been duly filed at the registry of the court, the court is at liberty to look at and make use of the said addresses whether or not formally adopted in open court.

On this, counsel referred to the case of Funduck Engineering Limited vs. Mcarthur (1995) 4 SCNJ 240 (1996) 40/41 LRCN 1364.

Counsel submitted that the system of filing the written addresses first in the registry of the court is as opposed to a situation where counsel simply brought written unfiled addresses and submitted to the court. That, in the latter instance, a formal adoption ought to be required to enable the said unfiled addresses get into the file of the court. He argued that this line of thought is more attractive when viewed against the back drop that documents so filed in the court’s registry become public documents that even non-litigants are at liberty to peruse or obtain

On another wicket, learned counsel for the Respondent submitted that in any case, our courts have since moved from the era of technicalities to that of substantial justice, so the Court of Appeal will not permit mere technicality to defeat the ends of justice especially where it is not shown that the technical error complained about resulted in a miscarriage of justice.

Counsel referred to the case of Famfa Oil Ltd. Vs. A-G Fed & Anor. (2003) 112 LRCN 2127 at 2141 and submitted that the Appellants herein have not shown how the failure to formally adopt addresses hurt them (especially) since it is not contended by them that the lower court did not make use of their address.

Learned counsel for the Respondent tried to distinguish the cases of Mika’ilu vs. State (2001) 8 NWLR (Pt. 715) 469 (supra) and Ogbaji vs. Arewa iles Plc. (2000) 11 NWLR (Pt. 678) 322 (supra) earlier referred to by the learned counsel for the Appellant. The first, on the ground that it is a criminal case which burden of proof is quite different from the instant case. Also, that the Mika’ilu case had to do with a judgment delivered in chambers and has nothing to do with an un-adopted (but used) written address.

In relation to the case of Ogbaji vs. Arewa iles Plc. (supra). Counsel argued that the statement credited to Salami JCA is an obiter dictum because the issue of written addresses was not before the Court of Appeal in the case. He urged that the issue be resolved in favour of the Respondent.

In deciding Appellant’s Issue No. 1, regard must first be made to the event that allegedly took place in the lower court on 15/10/2008. At pages 101 – 102 of the record, the following recordings appear starting from the bottom of Page 101.

Re-Examination

NIL

Case for the defence.

Counsel are advised to submit written addresses. Defence counsel is given seven days to file his written address and serve the plaintiff’s counsel. On receipt of it, the plaintiff’s counsel should have seven days to file his written addresses. Case is adjourned to 4/11/2008 for judgment.”

C.M.I. Egole

(Judge)

15/10/2008

Three cursory observations arise from the remarks of the learned trial Judge above.

1. The parties were only ‘advised’ not ordered to file written addresses.

2. The Respondent was not given any specific time for a Reply.

3. The parties were not afforded the opportunity to adopt their addresses such that the addresses could be deemed to be part of the proceedings of the court.

One of the points raised by the learned counsel for the Appellants on this issue is the propriety of ordering the written addresses when the then applicable High Court Rules did not so provide.

Learned counsel for the Respondent does not share the above view of the provision of Order 37 Rule 22 Imo State High Court (Civil Procedure) Rules, 1988. He is of the opinion that the provision is wide enough to cover oral and written addresses. Order 37 Rule 22 of the Imo State High Court (Civil Procedure) Rules 1988 provides:

“where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the court and the party beginning shall be entitled to the general reply.”

I have no doubt that the provision of Order 37 Rule 22 of the Imo State High Court Rules 1988 contemplates only oral address following and in the con of oral evidence that has just been adduced. This is better demonstrated by the use of the words “and the party beginning” which to all intent and purposes could not have been used in situations of written addresses.

I must however, add that neither the learned counsel for the Respondent nor my humble self would pretend that the question of ordering written address is the most important point in the determination of Appellant’s Issue No. 1. It seems to me that the most important point in relation to Appellant’s Issue No. 1 and perhaps also in this appeal is whether the failure of the learned trial Judge to give the parties an opportunity to formally adopt their written addresses and deeming same as proper record of the court before delivery of judgment vitiates the proceedings.

Learned counsel for the Respondent thinks that the failure to adopt the written addresses is trivial more especially as the Appellant’s counsel did not object to the submission of written addresses in the court below. These, according to the Respondent’s counsel are at best mere technicalities which the court would not allow to clog the wheel of justice.

I do not think it is right to view any infraction of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as mere technicality.

Section 36(1) of the said Constitution provides:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

And in sub-section (3) of the same Section 36, of the Constitution

“(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in Section (1) of this section including the announcement of the decisions of the court or tribunal shall be held in public.”

Now, in all the circumstances of the instant case written addresses that were not adopted and deemed to be part of the record of proceedings are as bad as written addresses that were not ordered. Also, the “address” portion of the proceedings in the instant case cannot be said to have held in public.

Learned counsel for the Respondent would dub the scenario as that of un-adopted (but used) written address. I would say the scenario presented here is that of an un-adopted, non-existing (but used) written address.

(a) That the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.

(b) That the court or tribunal gives equal treatment, opportunity and consideration to all concerned.

(d) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

In the instant case, I hold that the failure of the learned trial Judge to provide the opportunity for the parties to adopt their written addresses and to formally incorporate the written addresses as part of the proceedings at the trial offends the provision of Section 36(3) of the 1999 Constitution (as amended) which dictates that proceedings of a court must be held in public. The sub-section does not excuse any aspect of the proceedings of court to be held outside the glean of the public except as provided in Section 36(4)(a) of the constitution. Furthermore, the right provided under Section 36(3) of the 1999 Constitution being a public right cannot be waived by any party to a suit. See- Nigeria Arab Bank Ltd. Vs. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt 413) 257 at 380. Ariori vs. Elemo (1983) 1 SCNLR 1. What then is to be done? It is trite law that where a case occasioned a miscarriage of justice or as in the instant case, deemed to have occasioned a miscarriage of justice by breach of the constitutional provision relating to fundamental human rights, such a matter is liable to be set aside, no matter however well decided. Okonkwo vs. Okoronkwo (1998) 10 NWLR (Pt. 571) Pg. 534 Oyekanmi vs. NEPA (2000) 15 NWLR (Pt. 690) Pt. 414.

An appellate court will exercise its discretion to order a retrial when particularly there has been a fundamental irregularity in the trial, among other reasons.

Issue No. 1 is resolved in favour of the Appellant.

Having resolved Issue No. 1 as a determinant issue in this appeal, I do not consider it necessary to delve on any other issues in the appeal. This is because where a case on appeal is to be heard and resolved de novo, the appellate court should not be seen to interfere or to deal with any, substantive questions or points that have to be resolved at the hearing of the matter. Ovunwo vs. Woko (supra) per Chukwuma – Eneh, JSC at page 543.

This appeal succeeds. The judgment of C.M.I. Egole J. in Suit No. HOW/211/2004 delivered on 10th day of November, 2008 at the High Court of Imo State sitting at Owerri is hereby set aside.

I hereby order a retrial of the case before another Judge of the High Court of Imo State other than C.M.I. Egole J. Accordingly, the case is remitted to the Hon. Chief Judge of Imo State for reassignment.

UWANI MUSA ABBA AJI, J.C.A (PRESIDING): I have read before now the lead judgment of my learned brother M. A. Owoade, JCA just delivered.

I entirely agree with his reasoning and conclusion that the appeal has merit and ought to be allowed. It is trite that where there is any infraction of the constitutional provision relating to fundamental human rights, such a matter no matter how well decided must be set aside.

In the instant case, the failure of the learned trial judge to provide opportunity for the parties to adopt their written addresses offends the provision of Section 36(3) of the 1999 Constitution as amended. It is a fundamental irregularity in the trial and an Appellant Court will exercise its discretion to set it aside.

I also allow the appeal and set aside the judgment of the Lower Court delivered on the 10th day of November, 2008. I also remit the case to the Chief Judge of Imo State for trial de novo by another judge other than C.M.I. Egole, J. and endorse the consequential order.

HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading before now, the judgment just delivered by my learned brother, M. A. Owoade; JCA.

Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria enshrines that:

“The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in Sub-section (1) of this section (including the announcement of the decision of the court or tribunal) shall be held in public'”

The section is therefore enshrined to ensure that justice is not only done but is seen to have been done. Justice can only be seen to have been done if the entire proceedings of a court or tribunal are conducted in public. It is when those proceedings are conducted in public that it would be seen whether in the determination of his civil right and obligations, a person has had a fair hearing. Consequently, Section 36(3) gives a constitutional command that proceedings of a court or other tribunal be conducted in public. That command must be adhered to, starting from the commencement of the hearing till judgment is delivered. In that respect, where any of the stages of the proceeding is not conducted as required by Section 36(3) of the 1999 Constitution (supra), a breach of the constitutional guarantee to fair hearing would have been occasioned. Where such a breach has occurred, it is immaterial that the decision arrived at is correct. The defect lies in the breach or absence of observance of a fundamental principle of natural justice, which demands that justice must not only be done, but must be seen to have been done. The correctness of the decision is therefore of no consequence. See ODESSA v. F.R.N (2005) All F.W.L.R (Pt. 282) Pg. 2010 at 2029 – 2030 and ADIGUN & ORS v. A.G; OYO STATE & ORS (1987) 18 NSCC (Pt. 1) Pg. 346.The address of counsel, whether oral or written is an integral part of the court proceeding. In both instances, the address must be presented in open court. That was not done in the instant case.

For the above reason and the detailed reasons contained in the judgment of my learned brother, I also agree that there was a breach of the right to fair hearing. The proceedings of the lower court was therefore affected by that virus and should therefore not be allowed to stand. I accordingly allow the appeal on that ground, and therefore set aside the judgment of the lower court delivered on the 10/11/2008. I abide by the order of retrial made by my learned brother.

Appearances

Chief E.T.C. Ogbusu, Esq; with T. N. Agumadu, Esq;For Appellant

AND

Matthew Duru, Esq:For Respondent