TOZALI MAZA MAKAMI v. LAMI UMARU (2013)

TOZALI MAZA MAKAMI v. LAMI UMARU

(2013)LCN/6080(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2013

CA/MK/141/2011

RATIO

RES JUDICATA: PRE-CONDITIONS THAT MUST BE SATISFIED IN ORDER TO SUSTAIN THE PLEA OF RES JUDICATA

To sustain a plea of Res-Judicata the pre-conditions must be satisfied. In Ikoku v. Ekeukwu (1995) 7 NWLR (Pt. 410) 637 the apex court in similarly considering conditions for the application of the plea of estoppel per rem jurdicatam held inter alia as follows:-
“For a plea of estoppel per rem judicatam to succeed, there must at least be established that:
(i) The identify of the parties (or privies)
(ii) The identity of the res rarely the subject matter of the litigation and
(iii) The identity of the claim and the issue in both the previous and the present action in which the pleas raised are the same. The burden is on the party who sets out the defence to establish the same. See Oke v. Atoloye (No.2) (1986) 1 NWLR (Pt. 15) 241 at 260; Yoye v. Olubode & Ors (1974) 1 All NLR (Pt.2) 118 at 122; Idowu Alashe & Ors. v. Sanya Olori-ilu & Ors. (1965) NWLR 66; Nwaneri v. Oriuwa (1959) SCNLR 316 etc. Accordingly the subject matter of the dispute in the present action being land north of the land in dispute in Exhibit H, the doctrine of estoppel per rem judicatam cannot apply…”PER ADZIRA GANA MSHELIA, J.C.A.

RES JUDICATA; REQUIREMENTS FOR A SUCCESSFUL PLEA OF RES JUDICATA

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria

Between

TOZALI MAZA MAKAMI Appellant(s)

AND

LAMI UMARU Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering leading Judgment): This is an appeal against the Ruling/Judgment of the High Court of Justice sitting at Karu, Nassarawa State delivered on the 4th day of July 2011, dismissing the plaintiff’s claim for being an abuse of court process and caught up by the doctrine of res-judicata.
The appellant as the plaintiff commenced an action in suit No NSD/No 5/2010 at the High Court of Jusitce Nassarawa State, sitting of Karu against the defendant now respondent claiming as follows:
a) A declaration that the plaintiff is the owner of the parcel of land which is situated and lying at Karmo in Gadabuka Development Area of Toto Local Government Council as described in paragraph 24 of the statement of claim.
b) A declaration that the defendant s claim over the said parcel of land is wrongful and baseless.
c) An order of perpetual injunction restraining the defendant, either by himself, privies or agents from doing anything with or lying claims to the said parcel of land.
d) The sum of Two million N2,000,000 being general damage for trespass, inconvenience, embarrassment the defendant has subjected the plaintiff.
e) The cost of this action and other incidental costs thereto.
Pleadings were filed and exchanged by parties. Before hearing commenced Defendant/Respondent brought a motion on notice dated 29/6/10 seeking for the following:-
“i. an order of this Honourable court that this suit to wit suit No VSD/No 5/2010 between Tozali Maza Makami v. Lami Umaru is res judicata and therefore an abuse of the judicial process
ii. An order of this Honourable Court, that suit No NSD/No 5/2010 being an abuse of judicial process, it lacks the requisite jurisdiction to entertain same.
iii And for such or any other order this Honourable Court may deem fit and proper in the circumstances to make.”
The motion is supported by a 22 paragraph affidavit deposed to by the applicant herself. Exhibits A – D were attached to the motion paper. The Defendant/Respondent also filed a 22 paragraph counter-affidavit and attached two exhibits. The learned trial judge after taking counsel’s arguments on the preliminary objection challenging the competence of the action invited the judge who presided over the case (Exhibit ‘B’) in respect of which formed the defendant/respondent’s objection, to testify before it. After his testimony the trial court moved to the locus in quo with a view to ascertaining whether the subject matter of the dispute before it had once been litigated upon. After the visit to the locus in quo the learned trial judge in a considered Ruling/Judgment dismissed the plaintiff/appellant’s case before it. The learned trial judge of page 152 of the record had this to say:-
“This suit is accordingly dismissed for being an abuse of court process and caught up by the doctrine of re-judicata. The plaintiff is hereby estopped from re-litigating over the same land again for writ of possession was issued in favour of the defendant/applicant. And this court lacks jurisdiction to entertain same. See the case for Udoh v. Okoli (supra) Dim v. Enenuo (supra).”
Not satisfied with the decision plaintiff/appellant lodged an appeal to this court vide his notice of appeal dated and filed 1st September 2011 containing 3 (three) grounds. The grounds shorn of particulars read thus:-
“GROUND 1
The trial court erred in law when it held that the land in exhibit B is the same land as the land in dispute i.e. the land before it.
GROUND 2
The lower court erred in law when it substituted its view in place of hard core evidence before it.
GROUND 3
The lower court erred in law when it relied on the evidence of the trial courts judge in Exhibit ‘B’ when the said evidence was not on oath.”
In compliance with the rules of this court parties filed and exchanged briefs of argument. When the appeal came up for hearing appellants brief was deemed argued pursuant to order 18 Rule (9)4 of rules of court 2011. While Respondent’s counsel adopted the respondent’s brief of argument.
In the appellant’s brief of argument filed on 10.10.11 and settled by Abel Samuel Esq. three issues were formulated for determination. The issues are:
1. Was the lower court right when it held that the land in Exhibit ‘B’ is the same land as the land in dispute before it?
2. Was the lower court right when it substituted its views in place of hard core evidence before it?
3. Was the lower court right when it relied on this evidence of this trial courts judge in Exhibit ‘B’ when the said evidence was not on oath?
The respondent’s brief filed on 13.2.12 and settled by T.Y. Jiriko Esq. also contained one issue for determination. The sole issue read as follows:-
“Whether the trial lower court was right in dismissing the suit of the appellant as an abuse of court process and caught up by the doctrine of estoppel Res – Judicata.”
The issues formulated by the appellant are apt as such I will adopt same in the determination of this appeal. I have noted that respondent’s sole issue is similar to appellant’s issue one as such I will treat them together.
Issue one is distilled from ground 1. While arguing issue one, learned counsel for the appellant submitted that the lower court erred in law when it held that the subject matter in Exhibit ‘B’ was the same land as the one before it. His contention is that the land in Exhibit ‘B’ has no descriptions of its boundaries. While the land in respect of which the parties were before the lower court was vividly described. Reference was made to page 78 lines 14 – 19 and page 6 lines 25 – 32 of the record. Learned counsel argued that the land in Exhibit ‘B’ is quite distinct from the one before the lower court. Learned counsel also noted the features on the subject-matter in Exhibit ‘B’ as reflected of pages 51, lines 26 – 29; 57, lines 23 – 27 and 62, lines 8 – 10 of the record. Counsel urged the court to contrast the features in the above pages and lines with the features the lower court saw on the land of page 149, lines 20 – 29 and 147, lines 1 – 10 of the record.
Learned counsel further submitted that to found a plea of Estoppel per Rem Judicatam the respondent has to satisfy the conditions laid down. In Alapo v. Agbokere (2010) 3 SCNJ 475 at 476 the Supreme Court held that to found a plea of Estoppel per Rem Judicadam, the defendant/respondent has to satisfy the court that:
a. The parties were the same;
b. That the land was the same; and
c. That the subject – matter is the same.
It was contended that the respondent did not satisfy the above the condition. That the conditions must be met before the plea could be sustained by the court. Reliance was placed on Nyebuchi v. INEC (2001) 20 WRN 102 at 106. Counsel contended that the court having held of page 151, lines 16 – 19 of the record that the land that was earlier litigated upon was in the middle of the land in respect of which the appellant was in court the lower court should have gone ahead to allow the appellant’s case to go on with a view to determining the boundaries of the land the appellant is claiming before it. See Okulanje v. Akwido (2001) 10 WRN 1 at 9 ratio 5. It was further submitted that the subject matter, in Exhibit ‘B’ has no description while the appellant’s land in respect of which he was before the lower court was vividly described. Reference was made to the case of Adua v. Essien (2010) 3 WRN 95 at 103 wherein this court (not apex court as indicated by counsel in the brief of argument) held that a judgment that does not define a land in dispute ought not to be relied upon. He urged the court to uphold the argument and set aside the decision of the lower court.
In response, learned counsel for the respondent submitted that the trial lower court was right in dismissing the suit of the appellant as an abuse of the court process and caught up by the doctrine of estoppel by Res judicata. Counsel set out the interpretation of Res judicata and relied on the case of Mallam Yusuf Jimoh & Anor. v. Karimu Akande & Anor. (2002) 21 WRN 139 at 154 lines 15 – 25 to buttress his point. Learned counsel submitted that, it is trite law that for a plea of estoppel, inter parties or estoppel per rem judicatam to apply, there must exist some essential pre-requisites for its application. The pre conditions are set out on pages 5 of the brief of argument. Reliance was placed on Umeano Achiakpo & Anor. v. Josiah Nduka (2001) 39 WRN 1 at 25 lines 5 – 25.
Learned counsel submitted that appellant is a privy to that ‘B’ because he testified as a witness (PW2) and having authored suit No NSD/No 5/2010 it is correct to say that in both proceeding parties are the same. Counsel also argued that the claim or issues in case No.CV/108/2009, as per Exhibit ‘B’ and suit No NSD/No 5/2010 are all the same. It was also contended that the res in the previous suit, to wit No.CV/108/2009 and the present suit No NSD/No 5/ 2010 are the same. That the submission of appellant’s counsel that the land in Exhibit ‘B’ has no description is a misplaced argument. Learned counsel submitted that the present appeal is against the decision of the High Court of Justice Nasarawa State Judicial Division Holden of Nasarawa sitting in its original jurisdiction and the appeal is against suit No NSD/No 5/2010 and not against CV/108/2009. It was further submitted that parties are bound by their pleadings, and will not be permitted to set up a case different from what they have pleaded. A party who adduces inconsistent evidence over one and the same issue damages his own case and no court or tribunal is to believe such a party. Reliance was placed on Basil v. Fajere (2001) 21 WRN 58 AT 68 ratio 13. He urged the court to hold that the subject matter in suit No CV/108/2009 (Exhibit B) is the same as the subject matter in suit No NSD/No 5/2010 and dismiss the appeal as lacking in merit.
Furthermore it was submitted that Exhibit ‘B’ is a final decision which has not been appealed against, and therefore subsisting and binding on the parties as well as their privies. See section 60(1) Evidence Act and case of Abubakar v. F.M.B. Ltd (2002) 15 WRN 95 at 101 ratio 6 and Idisi v. Oleksandi (2001) 15 WRN 133 at 134 ratio 1. Learned counsel submitted that grade 1 Area court, Karmo, Nasarawa State is a court of competent jurisdiction established by a warrant in the hand of the Chief Judge of the State. He finally contended that ground one of the appellant’s ground of appeal has no merit and should be dismissed.
To sustain a plea of Res-Judicata the pre-conditions must be satisfied. In Ikoku v. Ekeukwu (1995) 7 NWLR (Pt. 410) 637 the apex court in similarly considering conditions for the application of the plea of estoppel per rem jurdicatam held inter alia as follows:-
“For a plea of estoppel per rem judicatam to succeed, there must at least be established that:
(i) The identify of the parties (or privies)
(ii) The identity of the res rarely the subject matter of the litigation and
(iii) The identity of the claim and the issue in both the previous and the present action in which the pleas raised are the same. The burden is on the party who sets out the defence to establish the same. See Oke v. Atoloye (No.2) (1986) 1 NWLR (Pt. 15) 241 at 260; Yoye v. Olubode & Ors (1974) 1 All NLR (Pt.2) 118 at 122; Idowu Alashe & Ors. v. Sanya Olori-ilu & Ors. (1965) NWLR 66; Nwaneri v. Oriuwa (1959) SCNLR 316 etc. Accordingly the subject matter of the dispute in the present action being land north of the land in dispute in Exhibit H, the doctrine of estoppel per rem judicatam cannot apply…”

In a further related case of Ekpoke v. Usilo (1978) 6 – 7 SC 187 at 198 – 199; (1978) 6 – 7 SC (Reprint) 127, the Supreme Court per Obaseki, JSC observed:
“To found a plea of estoppel per rem judicatam the Defendant/Respondent had to satisfy the court that:
(1) The parties were the same
(2) That the land was the same; and
(3) That the subject-matter of the claim was the same.
In considering a plea of res judicata; one of the criteria of the identity of the two actions is the inquiry whether the same evidence would support both. (Modukolu & others v. Nkemdilim (1962) 1 All 587.”
See also Agunwa v. Onwukwe (1962) All NLR 537: Coker v. Sanyaolu (1976) 9 – 10 SC 203; (1976) 9 – 10 SC (Reprint) 126; Okukuje v. Akwido (2001) 3 NWLR (Pt. 700) 261 at 306 and Alapo v. Agbokere & Anor. (2010) 2 – 3 SC (Pt. 111) 133 at 145.
The question now is whether the parties in suit No CV/108/2009 as per Exhibit ‘B’ and suit No NSD/No 5/2010 are the same. For the parties in the two proceedings to be the same, they must not necessarily be named in the writ or pleadings; it suffices if they are privies to such parties. In law, privies are of three categories of: (1) privies in blood, such as ancestors and heirs (2) privies in law, such as testator and executor, and (3) privies in state, such as vendor and purchaser, lessor and lessee. See Coker v. Sonyaolu (1976) 9 – 10 SC 203 and Iyeji v. Eyigebe 1987 3 NWLR (Pt. 61) 523 at 534. Para C – E. Thus, a privy is a person whose title is derived from one who claim through a party. In the instant case appellant only testified as witness (PW2) for the plaintiff Lawya Jika in suit No.CV/108/2009 (Exhibit ‘B’). While in suit No NSD/No 5/2010 appellant was the plaintiff. I do not agree with the submission of respondent’s counsel that appellant is a privy to Exhibit ‘B’. The fact that he testified as a witness in the previous suit cannot in my humble view qualify him as a privy. I therefore hold the view that the parties in both proceedings are not the same.
The other requirement which is in dispute is whether the subject-matter of the claim was the same. In Exhibit ‘B’ at page 84 of the record the plaintiff’s claim was for a declaration of title over a portion of farm land which was alienated to the defendant by his father. While in the present case bearing suit No NSD/No 5/2010 the plaintiff claim among other things a declaration that the plaintiff is the owner of the parcel of land which is situated and lying at Karmo in Gadabuke Development Area of Toto Local Government Council as described in paragraph 24 of the statement of claim. See page 9 of the record. As to the claim, both cases are for claim of title. What is in dispute is whether the area of land litigated upon earlier in Exhibit B involving suit No.CV/108/2009 is the same as the area of land being litigated upon in suit No NSD/No 5/2010. Appellant denied that the land he testified for in Exhibit B is the same as the land claimed in the lower trial court. The plaintiff in his statement of claim describes the land in dispute in paragraph 24 as
“The plaintiff avers that the dispute land shares boundary with the following:-
West-Gomna (plaintiff’s sister)
North-Fadama (where plaintiff sister farm) and Hassana Sule
East-Joshua Agaba and Jagafa Barde Noma South-Main road to Nasarawa.”
The Defendant describes the fond in dispute in paragraph 39 of the statement of defence as:-
“East – the land of one Musa who left and never returned to Karmo till date but which land is presently possessed by Labaran Akworessu.
North – Tamura Aluku – now deceased whose portion is granted to her by late, Umaru Bari, Hassana Sule farms that portion presently.
West – Marshi land and being cultivated by Hassan Sule, Akawu Zokho and Gwamna.
South- Motor road across the motor road is the land of the defendant.”
In paragraph 40 the defendant further averred that there are economic trees on the land planted by late Umaru Bori such as Mango trees, Orange trees, Cashew trees, and there are locus beans trees on the land which germinated naturally. There are also economic trees planted by the defendant after the demise of her husband Umoru Bori.
The land in Exhibit ‘B’ is described by the plaintiff in that suit i.e. Lawya Jika on page 1 lines 14 as follows:-
“I inherited the disputed farmland through my late father. The disputed farmland belongs to my late father and we share common boundaries with my aunty who is a sister to my father in the disputed farmland there was water channel beside which my Aunty was farming my father, moved across the water channel and began to farm there – my Aunty share common boundary with Gajere Buga. The defendant husband came and requested the land in dispute from my father and my late father alienated the disputed land to the defendant.”
Apart from the above descriptions the record also revealed that the trial court summoned the Area Court Judge to show the court precisely the land in dispute and the previous land in suit No.CV/108/09. The court then visited the locus in quo in order for the presiding judge in suit No.CV /108/09 to identify and show the court whether the claim before the lower court is in respect of the same land subject of suit No.CV/108/09 or not. At page 146 of the record the trial court recorded the description of the area of the land in dispute as presented by the presiding judge” the defendant was asked and she confirmed that it was the land. Plaintiff/Appellant was asked to show the court the area he is claiming. After he did the learned trial judge remarked as follows:-
“My observation was that the land shown by the plaintiff was far bigger than the land subject matter of suit No.CV/108/09. The land in suit No.CV/108/09 is in the centre of the land shown by the plaintiff.”
In the concluding part of the ruling the learned trial judge made several findings of page 151 of the record. He stated thus:
“From the testimony of the presiding judge, visit to locus in quo Exhibit B, statement of claim/defence and written address, I find as follows:-
(1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(4) From the inspection of the land subject of suit No.CV/108/09 the present land in dispute before me is within the centre of the land claimed by the plaintiff in his statement of claim.
(5) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(6) The plaintiff claimed in paragraph 6 of his counter-affidavit that the land in Exhibit ‘B’ is different from the land he is claiming before this court but during inspection, he showed the same land in Exhibit B, but extended it and such extension the defendant is not claiming. Also the plaintiff did not claim the land across the road which is part of Exhibit B.”
The learned counsel for the respondent in his brief has contended that the court below was right in holding that the subject-matter in Exhibit B and that in the present action are the same. As demonstrated above this position cannot be correct because the subject-matter in suit No.CV/108/2009 (Exhibit B) is smaller area as compared to the larger area of land claimed in the present suit No. NSD/No 5/2010. The learned trial judge found as a fact that the area of land claimed by the respondent in exhibit ‘B’ is in the centre of the area of land claimed by the appellant in the present action. It means exhibit B forms a fractional part. It cannot therefore be said that the subject-matter are the same in area and size. I am of the firm view that with the description of the land in dispute placed before the court the plea of res-judicata cannot apply. Exhibit ‘B’ cannot therefore be said to be binding and final as it relates to the present action. I agree with the submission of learned counsel for the appellant that the lower court under the circumstances should have gone ahead to allow the appellant’s case to go on with a view to determining the boundaries of the land the appellant was claiming before it. I agree there must be an end to litigation. But in fond cases such can only be achieved where the area of land in dispute are clearly identifiable. From what I have said, it cannot be said that all the pre-conditions for a successful plea of res-judicata have been satisfied. In the circumstance I will resolve issue 1 in favour of the appellant.
The complaint of the appellant under issue No. 2 is that the learned trial judge substituted his view with the hard core evidence before him. Learned counsel submitted that there is no scintilla of evidence from either of the parties before the lower court that the land the appellant was claiming is in the centre of the land in Exhibit ‘B’ (land that was allegedly earlier litigated upon). He conceded that the learned trial judge can make observations at a locus in quo but that such observations must not take the place of evidence. Reliance was placed on Igwe v. Kalu (2002) 26 WRN 58 at 73 ratio 4. That the trial court ought not to have dismissed the appellant’s case based on its observation of the locus in quo without giving appellant opportunity of being heard.
In response, learned counsel for the respondent submitted that during the visit to the locus in quo, the appellant abandoned his claim as contained in page 6, paragraph 24 of the printed record and set out a case differently from his claims. Counsel referred to page 140 of the record, last paragraph wherein appellant said:
“My land does not extend across the road. The land extends towards Nasarawa road which includes 3 houses built, see the houses
That the 3 houses shown to the court were outside the land adjudicated in exhibit ‘B’ and that the three houses surrounds exhibit ‘B’. Exhibit B is in the center of the land shown by the appellant and appellant was not able to reconcile the inconsistency. Counsel submitted that it was the appellant that showed to the court the 3 houses and other features surrounding exhibit ‘B’ and not the trial court judge (High Court). That nowhere in page 107 lines 16 – 19 of the record that was said that the trial court said that the fond subject matter was in the middle of exhibit ‘B’ as claimed by appellant’s counsel. Learned counsel contended that the holdings of the trial lower court is as contained in pages 151 – 152, the lost line to page 151 of record and the observation of the judge based on the description of the land by the appellant of the locus in quo, did not form the bases of its decision. It was argued that appellant did not contend that the observation by the trial court led to miscarriage of justice. Counsel urged this court to discountenance this issue.
I have examined page 107 lines 16 – 19 of the record referred to by the appellant’s counsel. I have observed that the observation made by the learned trial judge referred to by the appellant’s counsel is not contained in the record. I think the observation is reflected on page 147 lines 20 – 23 of the record as well as page 151 of the record. Learned counsel did not however, state the correct statement made by the trial judge. What is recorded is that the land in exhibit ‘B’ is in the centre of the land claimed in the suit filed by the plaintiff/appellant. The learned trial judge did not say that the subject-matter in the suit before the lower court is at the centre of the land earlier litigated upon per exhibit ‘B’. Respondent’s counsel also rightly stated the correct statement made by the trial judge.
Contrary to the submission of the respondent’s counsel the observation of the learned trial judge based on the description of the land by the appellant of the locus in quo did form part of the decision of the court. The learned trial judge made several findings appearing at page 151 of the record. The relevant one is the 6th finding which read thus:-
“(6) The plaintiff claimed in Paragraph 6 of his counter affidavit that land in Exhibit B is different from the land he is claiming before this court but during inspection, he showed the same land in Exhibit B, but extended it and such extension the defendant is not claiming. Also the plaintiff did not claim the land across the road which is part of Exhibit B.”
It is clear from the above finding that the area of land claimed by the appellant is larger than the area of land litigated upon in exhibit ‘B’. As earlier resolved under issue 1 res-judicata cannot apply to the entire land claimed by the appellant. The learned trial judge should have heard the parties so that he would pronounce with definitiveness on the precise area of the land in dispute. Based on available evidence, it is my humble view that it was premature for the learned trial judge to have resolved the issue of res-judicata at the stage of pleadings.
The grouse of the appellant under issue 3 relates to the evidence of the trial court judge who decided the case in exhibit ‘B’. The contention of learned counsel is that the testimony of the trial judge was not on oath as such it was wrong for the learned trial judge to rely on his testimony in arriving of his decision. Reliance was placed on section 205 of the Evidence Act. That all oral evidence given in any proceedings must be given on oath or affirmation, administered in accordance to the Oaths Act or law as the case may be. That the court ought not to have relied on the testimony.
Respondent’s counsel on the other had contended that the presiding judge, affirmed himself as a judicial officer before his testimony. Counsel contended that the procedure is unknown to our legal Jurisprudence.
I have gone through pages 137 – 138 of the record. It is clear from the record that the presiding judge affirmed himself before giving evidence. The witness will not be required to take another oath or affirmation of the locus in quo. The witness will only be reminded of his oath in court when giving evidence of the locus in quo. The complaint in my humble view is without substance.
In the result, I find merit in the appeal. It is hereby allowed. The Ruling/Judgment of the High court of Justice Nasarawa delivered on 4th day of July 2011 by Soji J. is hereby set aside. I make an order that the case be remitted back to the same judge for hearing and determination on merit. In order to bring an end to this dispute, I think it is desirable that the services of a licensed surveyor be engaged, so that the precise area and size of land in exh. ‘B’ and the land in dispute will clearly be ascertainable. Parties to bear their own costs.

JA’AFARU MIKA’ILU, J.C.A.: I agree with the reasons given in the lead judgment and the conclusion reached thereof.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother A. G. Mshelia, J.C.A., just delivered. His lordship has exhaustively dealt with all the issues in this appeal. I agree entirely with the reasoning and conclusion and have nothing further to add.
I also allow this appeal. I abide by the orders contained in the lead judgment inclusive of that of costs.

Appearances

Appellant absent (though served)For Appellant

AND

T. Y. JirikoFor Respondent