PEOPLE’S DEMOCRATIC PARTY & ANOR v. ALMUSTAPHA AMINU & ANOR
(2019)LCN/12793(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2019
CA/S/26/2019
RATIO
COURT AND PROCEDURE: STATUTE OF LIMITATION
“The position of the law is that time begins to run for the purpose of the Statute of Limitation, when there is in existence of a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See FADARE vs. ATTN-GEN OYO (1982) 4 SC 1. There are authorities galore on this proposition of the law.” PER FREDERICK OZIAKPONO OHO, J.C.A.
COURT AND PROCEDURE: JURISDICTION
“The fact that the issue of jurisdiction can be raised at anytime even orally on Appeal for the first time was properly captured by the apex Court in the case of PDP vs. OKOROCHA (2012) LPELR- 7832 SC per ADEKEYE, JSC when the Court stated as follows; Jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding. A question of jurisdiction must be properly raised before the Court may rightly entertain it. In that wise, it can be raised at any stage of a case both at the trial and on Appeal by any of the parties, it can even be raised orally. The Court can raise it by itself suo motu where the question involves substantial questions of law, substantive and procedural and no further evidence needs be adduced which would affect the decision. The Court will invite the parties for an address and points taken to prevent an obvious miscarriage of Justice.” PER FREDERICK OZIAKPONO OHO, J.C.A.
COURT AND PROCEDURE: WHETHER A PARTY IS ALLOWED TO APPROBATE AND REPROBATE
“A party is not allowed to approbate and reprobate in the handling of their matter. It is the same thing as blowing hot and cold. See INTERCONTINENTAL BANK LTD vs. BRIFINA LTD (2012) 13 NWLR 1 AT 22. In the case of LUKE OKORO & ORS vs. HILARY EGBUOH & ORS (2006) LPELR-2491 SC the apex Court per TOBI, JSC had this to say on the subject”PER FREDERICK OZIAKPONO OHO, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“Thus, fair hearing must be understood within the parameters of Section 36 (1) and 2(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and should not be over flogged or overstretched beyond its elasticity and scope. In MAGIT V UNIVERSITY OF AGRIC MAKURDI (2005) LPELR 1816 the Supreme Court observed.
“Fair hearing and what it is all about has been flogged. It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court – But it is not so and it cannot be so. The Court must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the fact of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.” PER FREDERICK OZIAKPONO OHO, J.C.A.
Justice
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLE’S DEMOCRATIC PARTY
2. ABUBAKAR SALIHUAppellant(s)
AND
1. ALMUSTAPHA AMINU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the Federal High Court sitting at Sokoto, Sokoto State Coram: S. K. IDRISSA, J. wherein the Court on the 11th day of December, 2018 restrained the 1st Defendant i.e. the Peoples Democratic Party (PDP) from substituting the 1st Respondents name herein i.e. Almustapha Aminu, who was Plaintiff at the Court below, as its candidate in the forthcoming House of Assembly Elections slated for Saturday 9th March, 2019 as its Member, representing Sabon Bimi North State Constituency in Sokoto of State.
On the 21st day of November, 2018 the Respondent herein as Plaintiff took out an Originating Summons wherein he joined the Appellants as 1st and 3rd Defendants. The 1st Respondent vide the Originating Summons sought a number of declaratory reliefs and an injunctive Order seeking to restrain the Appellants and as well as the 2nd Respondent i.e. the Independent National Electoral Commission (INEC) from substituting or replacing him as the Candidate of the 1st Appellant in the aforementioned Elections.
The 1st Respondents Originating summons was accompanied by a supporting affidavit and a number of annexure by way of Exhibits dated and filed on the 21st day of November, 2018; See pages 95 139, while the Originating summons is pasted at pages 44 – 94 of the Record of Appeal. The 1st and 2nd Appellants Counter Affidavit filed in opposition of the grant of the Originating summons is at pages 140 – 153 of the Record of Appeal. The Courts Proceedings conducted for the hearing of the suit is at pages 159-165 of the Record of Appeal. A well considered judgment of the Court below was delivered on the 11th December, 2018 and it is at Pages 176 and 177 of the Record of Appeal.
Dissatisfied with the decision of the Court below, the Appellants have come before this Court vide a Notice of Appeal containing two (2) Grounds, which are reproduced here without their particulars as follows; The Notice of Appeal is at pages 154 – 158 of the Record of Appeal.
GROUNDS OF APPEAL
1. The Judgment is against the weight of Evidence
2. The learned trial judge erred in law and thereby occasioned a miscarriage of Justice when he denied the 1st and 2nd Respondents Fair Hearing by hearing the matter when the time limited by the Originating Summons has not been exhausted and no Order has been sought for abridgement of time and granted.
ISSUES FOR DETERMINATION:
Two (2) issues were nominated for the determination of this Appeal by the Appellants thus:
1. Whether the Honourable Lower Court properly assessed and evaluated the evidence placed before it at the hearing of the petition and the Judgment is not against the weight of evidence.[Ground One]
2. Whether the Appellants were given sufficient time to prepare and put in their defence or were afforded fair hearing. [Ground Two]
On the part of the 1st Respondent, two issues were equally nominated thus;
1. Whether the trial Court properly evaluated the evidence placed before it before granting the restraining order it granted (Ground 1).
2. Whether the Appellants were not afforded time by the trial Court to be heard by the trial Court (Ground 2).
A close perusal of the issues nominated across board by the parties will show unequivocally that the issues are identical except for reasons of semantics and as such the determination of this Appeal shall be based on the issues nominated by the Appellant. Learned Counsel to the parties addressed Court extensively and cited a number of decided authorities for the consideration of this Court. The Appellants brief of Argument filed on the 18-2-2019, was settled by T. O. ADEBOYE ESQ., while the 1st Respondents brief of Argument was filed on the 26-2-2019, and was settled by S. E. KING ESQ. At the hearing of the Appeal on the 1-3-2019 learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT:
ISSUE ONE:
Whether the Hon. Lower Court properly assessed and evaluated the evidence placed before it at the hearing of the petition and the Judgment is not against the weight of evidence.[Ground One]
In arguing this issue, learned Appellants Counsel defined what Evaluation of Evidence is under our adversarial system and cited a plethora of decided authorities in support. Counsel also contended that a careful appraisal of the entire gamut of the 1st Respondent’s case vis-a-vis the proceedings before the Court below will show indubitably that, the 1st Respondent did not lead credible evidence to show his entitlement to the reliefs granted by the Court below. According to Counsel, the 1st Respondent did not show or lead evidence to prove any acknowledgements that the 2nd Respondent received his nomination forms and Affidavit of personal details of persons seeking elections.
Counsel further contended that the 1st Respondent did attach form EC 2B for submission of names of candidates by political parties and list of nominated candidates to show his entitlements to the reliefs sought. According to Counsel, the effect of this failure is that the 1st Respondent has thrown in the towel. Counsel cited the case of DINGYADI vs. WAMAKO (2008) 17 NWLR (PT. 1116) 395 @ 422 – 431 PARAGRAPH E & B – H (RATIO 9) on when it can be said that a party has abandoned its pleading.
Learned Counsel also contended that all the pieces of evidence submitted by the Appellants particularly the 1st, to show that the 2nd Appellant was indeed the winner of the primary election, were not looked into and ascribed with the required probative value contrary to established procedure stipulated by law. He submitted that the procedure for evaluation of evidence was laid down in the celebrated case of ODOFIN & ORS vs. MOGAJI & ORS [1978] 4 SC 91 by the Supreme Court.
Counsel further submitted that where the question raised before the Appellate Court borders on wrongful evaluation, as in the instant case, the Court would be duty bound to evaluate or re-evaluate as the case may be, the evidence that had been led at the trial Court, if the trial Court had failed to properly evaluate the evidence before it and arrived at a perverse decision; that an Appellate Court is in as good a position as the trial Court to do its own evaluation. He urged this Court to resolve this issue in favour of the Appellants and re-evaluate the evidence in the interest of Justice.
ISSUE TWO:
Whether the Appellants were given sufficient time to prepare and put in their defence or were afforded fair hearing. [Ground Two]
In arguing this issue, Counsel contended that the position of the law is that before an order is made against a person whose rights and obligations will be affected thereby, such a person shall be first heard. It was further argued that a Court or tribunal establish by law shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any of the parties; that both sides shall also be given equal treatment, opportunity and consideration to all concerned. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as Amended and cited a number of cases, some of which are: F.C.S.C vs. LAOYE [1989] 2 NWLR (PT. 106)652 AT 699 PARA. E; ADIGUN vs. A-G OYO STATE [1987] 1 NWLR (PT. 53) 678; SOKOTO STATE GOVERNMENT vs. KAMDAX [2004] 9 NWLR (PT. 878) CA 345.
In seeking to demonstrate what actually transpired at the Court below, Counsel took time to reproduce the proceedings of the Court below, of the 22nd day of November, 2018 to the 3rd day of December, 2018: a total 11 days which is 19 days short of the 30 days the Appellants and 2nd Respondents were required to enter appearance and file their defence to the action.
Counsel in particular, drew attention of this Court to pages 159 to 165 of the record of appeal where the following transactions took place;
“22nd DAY OF NOVEMBER, 2018
S.E KING, C.T AJAH for the Plaintiff
I have filed a motion ex parte on 21/11/2018.
In the circumstance, I am seeking for an adjournment to put my house in order.
Court: In the circumstances, this matter is hereby adjourned to Monday, the 26th of November, 2018 for hearing.
26th DAY OF NOVEMBER, 2018
S.E. KING, C.T AJAH for the Plaintiff
It is for hearing of an Application on 22/11/2018.
In the circumstance, I am applying for an adjournment for service to be effected on the 2nd Respondent.
Court: In this circumstance, this matter is hereby adjourned to 29/11/2018 for hearing.
29TH DAY OF NOVEMBER 2018
S.E. King, C.T. Ajah for the Plaintiff
Khaleed Muhammad and T.O. Adeboye for the 1st and 2ndDefendants
Position: it is for hearing of Application 22/11/2018, I am ready.
Khaleed: I have been briefed yesterday on the 28/11/2018 to handle this matter. I need to study the Court processes filed and respond. In the circumstance, I am applying for an adjournment.
S.E King: I am reluctantly not opposing the application because the matter requires urgency.
Court: Based on agreement of counsel, this matter is hereby adjourned to the 3/12/2018 for hearing.
3RD DAY OF DECEMBER 2018
S.E King, C.T Ajah for the Plaintiff
Khaleed Muhammad for the 1st and 2ndDefendants
The matter is for hearing.
Counsel to the respondents called me this morning and said she is before the Court of Appeal, Sokoto Division. She is seeking for the matter to be stood down.
Court: in the circumstance, this matter is hereby stood down to the later part of today the 3/12/2018 for hearing.
S.E. KING C.T. AJAH. for the Applicant
Khaleed Mohammed.. for the 1st & 2nd Respondents No legal representation for the 3rdRespondent.
Registry: The 3rd Respondent has been served with application on 23/11/2018 at 10:36am by the Court belief in person of Aliyu Buhari Abubakar.
The Application for hearing, I am ready.
1st & 2nd Respondents: have filed counter affidavit dated 3/12/2018.
Applicant has filed originating summons on 21/11/2018.
It is seeking for the 9 prayers as they appeared on the face of the originating summon. It is supported by 4 paragraphs affidavit deposed by the Applicant. A written address dated the 21/112018 is attached and adopted by the counsel. Exhibit AA1-AA 7 are attached with the application. I urge the Court to grant the reliefs sought. I have been served with the counter affidavit of 1st & 2nd Respondents. I urge the Court to hold that, the 1st & 2nd Respondents have not challenged that the name of the Applicant has been forwarded to the 3rd Respondent. The Applicant has attached the 3rd Respondents form CF 001 showing that the name of the Applicant has not been forwarded. That, the name of the Applicant having forwarded to the 3rd Respondent cannot be substituted that fact is supported by exhibit AA 7.
That fact is not challenged. The 1st and 2nd Respondents have not exhibited the show of expression of interest and the nomination form contrary to the guideline of the 3rd Respondent. These forms are attached AA17 & AA2.
The applicant has established that he participated in the primaries and won and his name has been forwarded to the 3rd Respondent. Therefore, he is the valid candidate.
I urge the Court to grant the application.
1st and 2nd Respondents have filed a 6 paragraphs counter affidavit deposed to by one Hassan Usman of Gamzaki Law chambers dated 3rd December, 2018. A written address filed on 3/12/2018 is attached and adopted by counsel.
4 exhibits A1-A4 are attached with counter affidavit Exhibit AA1 which the receipt of the nomination is not authentic because the constituency he belongs to is not on the receipt. The issue of 2nd Respondent not filing form expression of interest and nomination is not in contest. What is in contest is whether the applicant won the majority votes. And whether he participated in the primaries by the legal and recognized committee set up by the 1st Respondent.
Whether he was recognized by the electoral committee that conducted the said election.
I urge the Court to refuse the application because the applicant was not the winner of the primaries that took place on 6/10/2018. The name submitted in exhibit A5 only the chairman and the secretary signed. I urge the Court to reject same the Application. The matter is adjourned to 11/12/2018 for a possible ruling.”
Arising from the forgoing, Counsel argued that it is glaring that, the Appellants, were entitled to 30 days within which to enter appearance and to file their counter affidavit to the originating Summons. But rather the Court below rushed to conduct hearing without allowing the 1st and 2nd Defendants time to put in their papers. It was further argued that the Corporate Headquarters of the 1st Appellant is in Abuja and therefore that by the provision of Section 99 of the Sherriff and Civil Process Act, the 1st Appellant cannot be forced to appear before the expiration of 30 days which, is also the time limited on the face of the originating summons. Counsel referred Court to page 44 of the record of appeal.
According to Counsel the Appellants were denied adequate time and facilities for the preparation of their defence and that Justice was thus sacrificed on the altar of speed. Counsel cited the case of SOKOTO STATE GOVERNMENT vs. KAMDAX [2004] 9 NWLR (PT. 878) CA 345 where this Court held thus:
“The right to fair trial is more than a personal right to the individual. Indeed, Public Policy demands that every person is entitled to a fair trial and that trials in the Court of Justice must conform with the settled principles of law”.
Against the backdrop of the foregoing, learned Counsel submitted that the Appellants were not afforded reasonable time and opportunity to prepare and defend themselves and that given the breach of the right to fair hearing of the Appellants, the proceedings before the Court below are a nullity no matter how well they must have been conducted. Counsel cited the cases of ANPP v. INEC (2004) 7 NWLR (PT. 871) 76; APP vs. OGUNSOLA (2002) 5 NWLR (PT.761).
Learned Counsel further submitted that where the procedure adopted by a Court was such as to deprive the decision or Judgment of the character of a legitimate adjudication as in the instant case this Court can set aside the judgment. Counsel referred to the cases of S. A. OMOKEWU & ORS vs. ABRAHAM OLABANJI & ANOR (1996) LPELR – 2648 (SC); CHIME vs. CHIME (2001) 1 S.C. (Part II) Page 1; ONU vs. IDU (2006) 12 NWLR (PT. 995) 657; JEV & ANOR vs. S. D. IYORTOM & ORS (2015) LPELR – 24420 (SC); BELLO vs. INEC (2010) 8 NWLR (PT. 1196) 342 (SC). Counsel urged Court to resolve this issue in favour of the Appellant.
1ST RESPONDENT:
ISSUE ONE:
Whether the trial Court properly evaluated the evidence placed before it before granting the restraining order it granted.
Learned 1st Respondents Counsel submitted that the responsibility for the evaluation of evidence resides with the trial Court whose primary function it is to do so and also ascribe probative value to it by putting same on an imaginary scale of Justice to determine the party in whose favour the balance of Justice tilts in the course of making necessary findings of fact and to come to a logical conclusion. Counsel cited the case ofMILITARY GOVERNOR OF LAGOS STATE vs. ADEYIGA (2012)30 W.R.N 1 AT 40 LINES 15-20. It is further submitted for the 1st Respondent, that evaluation of evidence is not rocket science, but a simple process whereby the Court places the evidence of the parties before it on an imaginary scale to see which side is heavier in quality and probative value or which side outweighs the other in terms of probative value. Counsel cited the case of EZENWA BROS. (NIG.) LTD vs. ONA-JONES (NIG.) LTD (2012) 34 W.R.N 144 AT L62 LINES 5-15.
Learned Counsel drew attention to pages 44-61 of the Record of Appeal where the Originating Summons of the 1st Respondent at the trial Court is pasted, the affidavit in support of the originating summons as well as the written address while at pages 62-89 of the Record of Appeal are all the exhibits annexed to the affidavit. In the same vein, he drew attention to pages 95-134 on account of the motion on notice filed by the 1st Respondent at the trial Court wherein the same set of exhibits were also annexed.
For the avoidance of doubts, Counsel submitted that the exhibits tendered by the 1st Respondent before the trial Court are as follows:
1. 1st Respondent’s expression of interest and nomination form (pages 60-79 of the Record of Appeal)
2. Provisional clearance certificate issued by the 1st Appellant to the 1st Respondent (page 80 of the Record of Appeal)
3. Result of State House of Assembly primary election issued by the 1st Appellant to the 1st Respondent (page 81 of the Record of Appeal)
4. Sokoto State House of Assembly primary election Appeal Panel Report (page 87 of the Record of Appeal)
5. INEC form C.F. 001 issued to the 1st Respondent showing clearly that the name of the 1st Respondent was forwarded to the 2nd Respondent on 20th October, 2018 (pages 88-94 of the Record of Appeal)
Learned Counsel also used this opportunity to draw attention to the Counter affidavit of the Appellants at pages 140-147 of the Record of Appeal wherein the Appellants attached;
1. Sokoto State House of Assembly Primary Electoral Committee Composition (page 147 of the Record of Appeal)
2. Sokoto State House of Assembly Primary Electoral Committee Composition (page 148 of the Record of Appeal)
3. Sokoto State House of Assembly Primary Electoral Appeal Panel Composition (page 149 of the Record of Appeal)
4. Result of State House of Assembly Primary Election (page 150 of the Record of Appeal)
5. Report of conduct of State House of Assembly Primary Election (page 151 of the Record of Appeal)
The submission of Counsel thereafter is that Originating Summons are determined by affidavit evidence and that a look at the judgment of the trial Court at pages 169-175 of the Record of Appeals, will show that the trial Court took its time to reproduce and analyzed the affidavit evidence of the parties before it as well as all the exhibits annexed thereto before arriving at its decision and that from the totality of the affidavit adduced by both parties before the trial Court as well as the annexure, Counsel said that the trial Court was correct to have reached its conclusion.
The reason for this assertion, Counsel submitted is that contrary to the Appellants, the 1st Respondent’s evidence before the trial Court and even on their face value shows clearly that he contested the primary election of the 1st Appellant and that his name was duly forwarded to the 2nd Respondent by virtue of form CF. 001 exhibited before the trial Court.
Learned Counsel also submitted that although the action of the 1st Respondent at the trial Court was filed pre-election, however, that the fulcrum of the case of the 1st Respondent at the trial Court and as can be gleaned from the affidavit filed in its support, particularly paragraphs 2(r)-(q) of the said affidavit at page 52-53 of the Record of proceedings, has nothing to do with the conduct of the primary election of the 1st Appellant which took place on the 6th day of October, 2018.
He argued further, that the 1st Respondents case also has nothing to do with wrongful substitution or nomination, but simply for an order of the trial Court to restrain the Appellants and 2nd Respondent from substituting the name of the 1st Respondent with that of the 2nd Appellant or any other person after over a period of one month that the name of the 1st Respondent had been duly forwarded to the 2nd Respondent as the flag bearer of the 1st Appellant in the forthcoming general election and which action can by the rules of the trial Court be commenced by way of a motion or summons.
Counsel reiterated that the said exhibits annexed by the 1st Respondent before the trial Court are deserving of the probative value attached to them by the trial Court and that the trial Court was correct in arriving at its decision. To this end, Counsel referred this Court to the judgment of the trial Court at pages 166-175 of the Record of Appeal particularly at pages 174 -175 where the learned trial judge held thus; In response to the above Exhibit AA (form C.F. 001) received by the Independent Electoral Commission on 20th October, 2018 contained the name of the Applicant Aminu Almustapha which established strongly that the name of the Applicant has been forwarded to the Independent National Electoral Commission as the 1st defendant’s candidate for election into the Sokoto State House of Assembly representing Sabon Birni North Constituency of Sokoto State
The 1st Defendant must comply with the above provision of the Electoral Act before taking any step to substitute or replace the Applicant whose name has already been forwarded to the Independent National Electoral Commission as per the content of Exhibit AA7
In the light of the above and in line with Section 33 of the Electoral Act 2010 (as amended) the 1st Defendant is hereby restrained from substituting or replacing the name of the Applicant until the 1st Defendant comply with the above provision of the law.”
Learned Counsel also submitted that from the above, it is clear that the trial Court did analyze and evaluate the evidence adduced before it arrived at its decision. Counsel urged this Court to so hold and to resolve this issue against the Appellant and in favour of the 1st Respondent even on this ground alone.
The contention of learned Counsel is that where a trial Court rightly evaluates the evidence before it in arriving at its decision as in the instant case, the Appellate Court will not readily interfere with such finding of the trial Court unless the Appellant shows that such decision arrived at by the trial Court is perverse. See the case of HARDING vs. THE ADMIN. GEN & PUBLIC TRUSTEES OF LAGOS AND ANOR (2016)43 W.R.N 113 AT 135 LINES 30-40.
ISSUE TWO:
Whether the Appellants were not afforded time to be heard by the trial Court?
According to learned Counsel, a cursory look at the reliefs sought before the trial Court by the 1st Respondent particular reliefs 7, 8 and 9 at page 48 of the Record of Appeal will reveal that it was an injunctive or restraining order that the 1st Respondent sought for and which was granted by the trial Court. He stated that the essence of an injunction or restraining order is to protect existing legal right or recognizable right of a person from unlawful invasion by another. See the cases of AKAPO vs. HAKEEM-KABEEB (1992)6 NWLR (PT. 247) 266; LAFFERI NIG LTD vs. NAL MERCHANT BANK PLC (2002)1 NWLR (PT. 748)333 AT 349 PARAGRAPHS F-H.
By the affidavit depositions of the 1st Respondent at pages 50-53 of the Record of Appeal as well as the exhibits at pages 63-94 of the Record of Appeal particularly the exhibits at pages 88-94 of the Record of Appeal, Counsel contended that the 1st Respondent showed before the trial Court, that he has a recognizable right which ought to be protected and that the Court rightly granted the order protecting same. Counsel further contended that injunctions or restraining orders are usually granted in cases of urgency and are therefore treated as such. See the case of IDEOZU vs. OCHOMA (2006) ALL FWLR (PT. 308) 1183 AT 1204.
On the question of whether the Appellants were afforded time to be heard or not, Counsel drew attention to the originating summons in question as can be seen at pages 44-61 of the Record of Appeal and which was filed on 21st November, 2018. He said that at pages 159-165 is the proceeding of the trial Court, while at page 160 of the Record of Appeal it is clearly shown that the 1st Appellants was served and the matter was adjourned for service to be effected on the 2nd Appellant. He said that at page 161 of the Record, it is shown that service was effected on the Appellants as a result of which, a Counsel appeared for them and requested for an adjournment.
According to Counsel, the Record of Appeal at pages 163-165 shows unambiguously that Counsel to the Appellants appeared, filed a counter affidavit and even canvassed arguments before the trial Court. Curiously, Counsel argued that although the Appellant has argued that they were entitled to 30 days to enter their appearance, but did not refer to any law on the issue. Counsel, however, submitted that the said argument of the Appellant is an afterthought and an attempt to approbate and reprobate.
According to Counsel at page 161 of the Record of Appeal, it can be seen that when Counsel to the Appellants appeared at the trial Court on the 29th November, 2018, it was with their consent that the matter was adjourned to 3rd December, 2018 for hearing and that they did not raise any objection or complain as to time.
Again, Counsel said that on the 3rd day of December 2018, when the matter equally came up, Counsel to the Appellant applied for a stand-down on the excuse that they were before the Court of Appeal, Sokoto Division (even though, this Court can take judicial notice of the fact that the Court of Appeal, Sokoto Judicial Division did not sit on that date), that the trial Court nevertheless, obliged them and that they eventually appeared and argued their case.
On the strength of this position, Counsel submitted that the trial Court afforded the Appellants time to be heard. Moreover, he said that the law is that, a Counsel that treats a procedure as regular cannot turn around later to complain before an Appellate Court that his/her right of fair hearing has been breached as the said consent by the Counsel amounts to a waiver of the right of the counsel to complain or object. See the case of MIL. GOV. LAGOS STATE vs. ADEYIGA (SUPRA) AT 28 LINES 15-25.
Learned Counsel further contended that the law is settled that whether a party to a trial or proceeding had been granted fair hearing or not depends on the facts and circumstances of each case. He cited the case of BILL CONSTRUCTION CO. LTD vs. IMANI & SONS LTD/SHELL TRUSTEES LTD (2006) NWLR (PT.1013) 1 AT 12 PARAGRAPHS E-F. Counsel thereafter argued that taking into consideration the nature of the 1st Respondents case before the trial Court, which requires urgency vis-??-vis the proceedings before the trial Court, the Appellants cannot be heard to complain that they were not granted fair hearing by the trial Court. He added that where a party has therefore been afforded the opportunity to put across his/her case before the Court and such party fails to take advantage of such an opportunity, such a party cannot later turn to complain that he was denied a right to fair hearing. See the case of MIL. GOV. LAGOS STATE vs. ADEYIGA (SUPRA) AT 28 LINES 5-10 where the Supreme Court per ADEKEYE, JSC held thus;
… hence, a party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing because equity aid the vigilant and not the indolent…
Counsel finally urged this Court to resolve this issue in favour of the 1st Respondent and against the Appellants.
RESOLUTION OF APPEAL
The facts of this case are rather straightforward. The 2nd Appellant and as well as the 1st Respondent are members of the Peoples Democratic Party, (PDP) from Sabon Birni Local Government Area of Sokoto State. The 1st Respondent in his processes claimed to be a registered member of the 1st Appellant, who purchased the expression of interest and nomination form, duly completed and submitted same to the 1st Appellant consequent upon which, he was screened and cleared to contest the primary of the 1st Appellant for purposes of contesting election into the office of Member, representing Sabon Birni North State Constituency of Sokoto State at the forthcoming 2019 general elections.
The 1st Respondent, also by his processes further claimed to have participated and contested in the primary election of the 1st Appellant which was conducted on the 6-10-2019. For the purposes of the aforesaid election the 1st Respondent claimed to have been duly declared winner of the primary election (See lines 10-25 of page 51 of the Record of Appeals as well as the documents at page 81 of the Record of Appeal).
After the primary election of the 1st Appellant, as stated heretofore, the 1st Respondent claimed that his name was forwarded to the 2nd Respondent on the 20th October, 2018 as the flag bearer of the 1st Appellant for the purposes of the aforesaid election (see lines 10-15 of page 52 of the record of Appeal as well as the Exhibits at pages 88-94 of the Record of Appeal).
The 1st Respondent also claimed that about a period of over a month after his name had been forwarded to the 2nd Respondent, he was reliably informed that there were moves by the Appellants to substitute or replace his name with that of the 2nd Appellant, hence the need to take out an action at the trial Court, wherein he sought for a restraining order against the Appellants and the 2nd Respondent from substituting or replacing his name with that of the 2nd Appellant as the flag bearer of the 1st Appellant in the forthcoming elections.
In granting the 1st Respondents application, the trial Court accordingly restrained the 1st Appellant from substituting or replacing the name of the 1st Respondent without complying with the provisions of Section 33 of Electoral Act, 2010.
It would be recalled that at the time of the argument of this Appeal on the 1-3-2019, learned Counsel for the Appellants, T. O. ADEBOYE ESQ., made an oral application, challenging the jurisdiction of the Court below in entertaining the 1st Respondents action, which Counsel argued was already statute barred at the time the Court below entertained the matter. According to Counsel the matter was caught by the provision of Section 285 (9) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria, 1999 as amended. By the said provision, Counsel contended that the event complained of, occurred on the 6th day of October, 2018 while the 1st Respondents action was not filed until the 21-11-2018, creating a gap of the period of almost 45 days between the occurrence of the event and the time of the institution of the action, whereas going by the section of the law the 1st Respondent or any party aggrieved following the outcome of a primary election has 14 days to institute his action. On the strength of this Counsel urged this Court to strike out the action at the Court below for reason of being statute barred.
In his response, learned Counsel to the 1st Respondent, contended that the 1st Respondents action at the Court below was not statute barred and that in essence, this issue of jurisdiction raised by Appellants Counsel is not borne by the records of appeal in the first place. Secondly, Counsel contended that the subject matter of the action filed by the 1st Respondent at the Court below, did not emanate from a primary election, but rather that after over a month, after the 1st Respondents name has been submitted to the 2nd Respondent as candidate who won the primary election of the 1st Appellant, that he got wind of the fact that there were surreptitious moves to substitute his name with that of the 2nd Appellant.
Learned Counsel also submitted that the time for the filing of the 1st Respondents action at the Court below cannot begin to run from the time of the conduct of the primary elections on the 6th of October, 2018, but at the time when the 1st Respondent got wind of the moves to substitute his name with that of another. Counsel finally urged this Court to dismiss this Appeal and also to hold that the 1st Respondents action at the ourt below was well grounded.
The fact that the issue of jurisdiction can be raised at anytime even orally on Appeal for the first time was properly captured by the apex Court in the case of PDP vs. OKOROCHA (2012) LPELR- 7832 SC per ADEKEYE, JSC when the Court stated as follows;
Jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding. A question of jurisdiction must be properly raised before the Court may rightly entertain it. In that wise, it can be raised at any stage of a case both at the trial and on Appeal by any of the parties, it can even be raised orally. The Court can raise it by itself suo motu where the question involves substantial questions of law, substantive and procedural and no further evidence needs be adduced which would affect the decision. The Court will invite the parties for an address and points taken to prevent an obvious miscarriage of Justice
Having therefore allowed the parties to address Court on the issue, there may be need to state that although learned Counsel for the 1st Respondent had insisted that the issues involved did not emanate from or bear relevance to pre-election matters, the opinion of this Court is that there is no way the issues involved can also be referred to as post-election matters when the main elections actually contemplated by the 4th Alteration, No: 21 Act, 2017 to the Constitution of Nigeria, 1999 are yet to hold. In this connection see Section 14 (a) of the Act, of 2017 which defines what a pre-election matter is.
It will be recalled at this stage that learned Counsel for the Appellants had anchored the objection made as to the question of jurisdiction of the Court below on the provision of Section of 285 (9) which limits the time for the filing of actions in pre-election matters to fourteen (14) days. For the avoidance of doubt, the Section provides thus;
Notwithstanding anything to contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
There is no gainsaying the fact that the said Section 285 (9) of the Act is clearly a Statute of Limitation, which limits time for the filing of actions arising from pre-election matters by persons aggrieved as a result of the fall out of party primaries to 14 days. However, in determining the period of limitation, reference to the date of accrual of cause of action cannot be dispensed with. This is usually computed against the date of the commencement of the action by reference to the originating processes filed by the Plaintiff. In the instant Appeal, the primaries of the 1st Appellant held and concluded on the 6th day of October, 2018 and the 1st Respondents action at the Court below was filed on the 21st day of November, 2018, some 47 days after the primaries were held and concluded.
It should however be remembered that the case of the 1st Respondent is that he won clean and clear the primaries of the 1st Appellant and was returned as candidate for Member, Sabon Birni North State Constituency in the forthcoming general elections and that his name was published for that purpose by the 2nd Respondent in the instant Appeal on the 20th of October, 2018. Perhaps, an aspect of the argument of learned 1st Respondents Counsel, which this Court finds unassailable, is that about a period of over a month after the name of the 1st Respondent was forwarded to the 2nd Respondent, the 1st Respondent was reliably informed that there was a move by the Appellants to substitute or replace his name with that of the 2nd Appellant, hence the action of the 1st Respondent which at the Court below sought to restrain the Appellants
With this at the background, a computation of a month from the 20th day of October, 2018 when the 1st Respondents name was forwarded and entered in the records of the 2nd Respondent (i.e., INEC) will give a date of approximately the 20th day of November, 2018 and will also approximately, give the time and date that the 1st Respondent got wind of the moves to substitute his name. The question next to address thereafter is whether the 1st Respondent filed his action within the 14 days prescribed by Section 285(9) of the Act or not? The answer to this teaser will inevitably bring us to the question of the time of accrual of cause of action.
The position of the law is that time begins to run for the purpose of the Statute of Limitation, when there is in existence of a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See FADARE vs. ATTN-GEN OYO (1982) 4 SC 1. There are authorities galore on this proposition of the law. The 1st Respondent having therefore discovered the plans to substitute his name around the 20th day of November, 2018 and had filed his action on the 21st day of November, 2018 the 1st Respondents action filed at the Court below cannot by any stretch of imagination be said to be statute barred.
On the first issue, nominated for the determination of this Appeal dealing with the question of evaluation of evidence, it is important to first draw attention to the fact that the matter at the Court below was one commenced by originating summons and therefore fought by affidavit evidence. The question to address here, to begin with, is whether there is annexed to the 1st Respondents Supporting Affidavit to his Originating Summons sufficient Exhibits for the lower Courts evaluation of the evidence paraded before the Court? Perhaps, as a corollary to the first question, did the Court below, in arriving at its decision properly evaluate the pieces of evidence paraded before the Court? The answers to this question can be found at pages 166-175 of the Record of Appeal where the Court below did a dispassionate evaluation of the evidence adduced before it in the parties Supporting Affidavit. This issue is resolved against the Appellant.
On the second issue nominated for the determination of this Appeal dealing with the Appellants allegation of denial of fair hearing, the short and straightforward decision of this Court is that the said allegation is nothing but an afterthought. Here is a situation in which the Appellant by his own showing, appeared and participated in the proceedings and did not raise the issues of fair hearing, asked the Court below for an adjournment which the Court freely granted and did not raise the issue of fair hearing throughout. A party must be consistent in the handling of their matter. A party is not allowed to approbate and reprobate in the handling of their matter. It is the same thing as blowing hot and cold. See INTERCONTINENTAL BANK LTD vs. BRIFINA LTD (2012) 13 NWLR 1 AT 22. In the case of LUKE OKORO & ORS vs. HILARY EGBUOH & ORS (2006) LPELR-2491 SC the apex Court per TOBI, JSC had this to say on the subject;
An appellate Court will be guided by the principle of law that a party is bound to make the same case in both the trial Court and the Court of Appeal. An appellate Court will not encourage, or better, allow a party make a case at the trial Court and then take or make a somersault on appeal. That will be tantamount to blowing hot and cold with the same breath; a conduct which equity, with its hands of fairness and fair play, will not allow.
Against the backdrop of the foregoing, this Appeal fails and it is accordingly dismissed. To this end, the Judgment of the Federal High Court sitting at Sokoto, Sokoto State delivered by S. K. IDRISSA, J. on the 11th day of December, 2018 is hereby affirmed. Cost of N50,000.00 is awarded against the Appellant in favour of the 1st Respondent.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had a preview of the Judgment just delivered by my learned brother,
FREDERICK O. OHO, JCA. I agree entirely with his reasoning and conclusion which I adopt as mine.
I have nothing to add to it other than to emphasise that the Appellants’ have not proved the issue of statute – bar raised after adopting their joint Appellants’ Brief of Argument. The issue of an action being statute – barred is never raised in vacuo, it is always based on hard facts derived from the processes before the Court. In the instant case, it has been raised from the blues. This is unacceptable and must be discountenanced.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, Frederick O. Oho, JCA, who has comprehensibly considered the salient issues raised in this appeal. I endorse the sound reasoning therein and the conclusion thereat that this appeal is devoid of any merit. I adopt his reasoning and conclusion but wish to add few words of mine.
In challenging the correctness of the decision of the lower Court with which the Appellants are displeased, two grounds of appeal were filed from which two issues were donated for determination of this Court, namely:-
1. Whether the Honourable Lower Court properly assessed and evaluated the evidence placed before it at the hearing of the petition and the Judgment is not against the weight of evidence. (Ground One of the Notice of Appeal).
2. WHETHER the Appellant (sic) were given sufficient time to prepare and put in their defence or were afforded fair hearing. (Ground Two of the Notice of Appeal).
On their second issue for determination that the Appellants were not given sufficient time to prepare and put in their defence or were not afforded fair hearing, it was the contention of the learned Appellants counsel that the conduct of the entire proceedings within 11 days which was 19 days less than the 30 days to which they were entitled to enter appearance and file their defence, amounts to deprivation of the Appellants right to fair hearing. Our attention was drawn to the proceedings that transpired at the lower Court as copied at pages 159 165 of the record of Appeal.
Let me state here that the concept of fair hearing as adumbrated in the case of PAUL ONONGO V APER AKU (1983) 11 SC, 129 at 179 wherein ESO JSC of (blessed memory) quoted with approval the dictum of Ademola CJN in MOHAMMED V KANO NATIVE AUTHOURITY (1968) 1 ALL NLR 42, was defined to include fair trial which consists of the whole hearing as there is no difference between the two. His Lordship then propounded the test which should guide the Courts in determining whether there has been fair hearing to a party in a case when he postulated as follows:
“The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation; Justice has been done in the case.”
It must be emphasized that the concept of fair hearing is not a cut and dry principle that parties can apply to their comfort and convenience or resort to whenever they have no good case on merit. It is a concept that must be applied within the con Justice of the facts and circumstances of each case because fair hearing is lifeless outside the facts of the case since it is the peculiar facts and circumstances of each case that influences and dictates the applicability or otherwise of the principle. Outside the facts of the case, the principle is only but a theoretical slogan.
Thus, fair hearing must be understood within the parameters of Section 36 (1) and 2(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and should not be over flogged or overstretched beyond its elasticity and scope. In MAGIT V UNIVERSITY OF AGRIC MAKURDI (2005) LPELR 1816 the Supreme Court observed.
“Fair hearing and what it is all about has been flogged. It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court – But it is not so and it cannot be so. The Court must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the fact of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.”
My understanding of the law is that fair hearing in its simplistic form only entails giving equal opportunity to both parties to be heard.
It thus means that fair hearing can be said to be breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the party can complain that he was denied fair hearing. But where a party has been afforded opportunity of hearing and his case considered by the Court before arriving at its decision, the party cannot justifiably complain of denial of fair hearing. This is so because fair hearing is not and cannot be an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light and the circumstances of the case. Therefore for a party to allege that he was denied fair hearing, he must prove specific act or acts of such denial and not by a mere cluster of conducts which are insignificant.
Now, within the con Justice of the facts and circumstances of the present appeal, proceedings were begun by the 1st Respondent as plaintiff at the Court below by an Originating Summons which was supported by an affidavit, several annexures marked as exhibits as exhibited at pages 62 94 of the record, and a written address. These processes were countered by the 1st and 2nd Appellants as defendants by a counter affidavit, some exhibits as well as a written address as shown at pages 140 142, 143 146 and 147 153 of the record of appeal respectively.
Thereafter, the 1st Respondent as applicant filed a motion on Notice seeking interlocutory injunction restraing the 3rd Respondent INEC, which was the 3rd defendant/Respondent, either by itself, servants, agents, privies or assigns from accepting, publishing, recognizing or in any manner howsoever dealing with or acknowledging the 2nd Respondent as the 1st Respondents candidate for the election into the office of member representing Sabon Birni State Constituency of Sokoto State at the forth coming General Election scheduled for February (now rescheduled for 9th March 2019). He sought other ancillary injunctive reliefs.
The proceedings that transpired at the Court below as reflected at pages 159 164 of the printed record of appeal to which our attention was drawn by the learned Appellants counsel, clearly and manifestly shows that all the Respondents to the motion were served with the processes. The 1st and 2nd Respondents who were represented by Khaleed Mohammed Esq. filed a 6 paragraphs counteraffidavit to which was attached exhibits A1 A4 and a written address filed on 3/12/18. (See P.16 of the record). Learned counsel raised no protest or observation whatsoever about denial of fair hearing or requested for or insisted on his acclaimed 30 days to enter appearance. And what appearance? I may ask, after filing a counter affidavit and a written address to the Originating Summons and to the motion? What other processes were the Appellants entitled to file in response to the Originating Summons and the motion on notice which they had not already filed and placed before the Court?
Curiously also, counsel made no reference to any specific provision of the Rules of the lower Court (if any exists) other than the endorsement on the originating summons, which grants a defendant in an originating summons procedure 30 days after filing a counteraffidavit and annexing exhibits thereto in opposition to the originating summons, to then enter appearance and file other papers. I find that argument totally strange and alien to the Rules of Court. It is an argument that is not in tune or tandem with the Rules of Court and completely oblivious of the procedure prescribed for Origination Summons as set out in Order 3 Rule 9 of the Rules of the lower Court.
By the combined effect of Order 3 Rules 7 and 9 of the Rules of the lower Court (Federal High Court Rules) 2009 any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed, which originating summons shall be as in Forms 3, 4 or 5 and be accompanied by: (a) an affidavit setting out the facts relied upon, and (b) copies of all the exhibits to be relied upon.
Accordingly, Perforce of the foregoing provisions, the only duty imposed on the plaintiff who in accordance with Rules (1) and (7) of the afore stated Order 3 initiates his action by the Originating Summons mode, is to accompany the originating summons with an affidavit setting out clearly the facts which he relies upon and attaching all the relevant exhibits in support of his claim which will sway the Court to determine the action under the procedure and to grant the reliefs sought. Correspondingly, a defendant to the Originating Summons is only required to file a counter affidavit and annexing his own exhibits, in opposition to the summons.
A fortiori, a defendant upon service of the originating summons is only entitled to file a counter affidavit together with copies of all exhibits to be relied upon setting out the facts and stating or showing the reason or reasons why the reliefs sought in the originating summons should not be granted.
Here, Parties are ad idem that on the face of the originating summons, the question(s) for determination of the lower Court involve (s) the construction of the relevant provisions of the Constitution of the FRN 1999 (as amended), the Electoral Act 2010 (as amended) and Guidelines and the P.DP. Constitution and Guidelines on the conduct of primary elections of the 1st Appellant.
The first respondent was by the Originating Summons claiming to have been duly elected at the primary election conducted by the 1st Appellant as the 1st Appellants candidate to contest for the Sabon Birni State constituency at the forthcoming General Election now rescheduled to hold on the 9th of March 2019 and sought an injunction restraining his substitution with the 1st Appellant or any other person.
As required under the procedure, the 1st respondent accompanied the originating summons and the motion with an affidavit and exhibits just as the 1st and the 2nd appellants also did in opposition to the originating summons. By the said procedure, except where the Court upon perusing the affidavits on both sides considers that the action is not suitable or appropriate for determination under that procedure in which case it shall invoke the provisions of Rule 8 to order for pleadings, no further processes are required to be filed nor is oral evidence necessarily required to determine an action commenced by originating summons.
Thus, the Appellant having filed the necessary processes both in opposition to the Summons and motion, the lower Court was not a slave of time to request or await the Appellants to complete their acclaimed 30 days to file other papers.
As Belgore JSC (as he then was) warned in his concurring Judgment in the case of News Watch Communication Ltd v- Atta (2006) ALL FWLR (Pt 318) 580, the Court is not a slave of time that must await a party to decide when to come and present its case, and in this case, when to re-enter appearance and refile processes as it were.
In the case at hand, it is clear that the Appellants as 1st and 2nd Respondents had, on the record, filed all the processes required to be filed in opposition to the originating summons and the motion on notice for interlocutory injunction which were duly argued by their counsel. In other words, not only were the Appellants given an opportunity to file their necessary processes and indeed filed same in opposition to the summons and the motion, they participated fully in the proceeding leading to the grant of the injunctive reliefs in favour of the 1st Respondent without raising any objection to the procedure. In the eye of the law, the appellants are deemed to have waived whatever right they claim to have, to complain about any irregularity, if an irregularity it was, having fully participated from the beginning of the proceedings to the end without blinking an eye of protest. If as professed by the Appellants learned counsel the Appellants were entitled to 30 days to enter appearance and file their papers, one wonders why they participated fully in the proceedings, and kept mute, swept their acclaimed right under the carpet or elected to concede to the procedure which they now complain against?
A party who intentionally or voluntarily relinquishes his known right or such conduct as reasonably warrants the inference of his relinquishment, renunciation, repudiation, surrender or abandonment of such a right or privilege or advantage of some defect, irregularity or wrong is said to have waived his right and cannot turn around to complain. A party who waives or is deemed to have waived a procedural irregularity (if any) cannot be heard to complain more so where the right so waived is personal or as being alleged in this matter, is only imaginary. See FASADE V BABALOLA (2003) FWLR (Pt 161) 1707, 1721 JSC FEEDS AND FOOD FARMS (NIG) LTD V NNPC (2009 12 NWLR (Pt 1155) 387 at 401 per Tobi JSC and UBA PLC & ANOR v Ugoenyi & Anor (2011) LPELR 5065 (CA).
Surely, the Appellants having filed all their processes in opposition to the Originating Summons and the motion on notice and fully participated at the trial without any objection, cannot be heard on appeal to complain of denial of fair hearing. They are precluded from such a complaint. There is therefore a considerable strength in the submission of the leaned Respondents counsel that the Appellants having waived their right to the procedure cannot turn around to complain before an appellate Court that their right to fair hearing has been breached as consent of the counsel to the proceedings amounts to a waiver to complain or to object.
Furthermore, the settled position of the law on this concept of fair hearing is that a party who has been afforded an opportunity to put across and present his case before the Court and either fails to do so or unsatisfactorily does so, cannot complain of denial of fair hearing. See MILITARY GOVERNOR LAGOS STATE V ADEYIGA (2012) 30 WRN 1.
The Appellants herein having filed all their processes, attached their exhibits and canvassed argument in opposition to the Originating Summons and the 1st Respondents motion, all of which the trial Court evaluated before arriving at its conclusion, it is farfetched to contend and indeed will be flying in the teeth of the evidence on record to hold that the Appellants were not afforded sufficient time to enter their defence and file their papers or were denied a fair hearing.
It is on this score and the detailed reasons in the lead judgment to which I fully subscribe that I too hold that there is no merit in this appeal. I dismiss the appeal as being unmeritorious and abide the consequential order to cost in the lead judgment.
Appearances:
T. O. Adeboye, Esq.For Appellant(s)
S. E. King, Esq.For Respondent(s)
