TREASURE MUCH LIMITED v. GOVERNOR OF ANAMBRA STATE & ANOR
(2019)LCN/13735(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of August, 2019
CA/E/500/2013
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
TREASURE MUCH LIMITED Appellant(s)
AND
1. GOVERNOR OF ANAMBRA STATE
2. THE REGISTRAR OF DEEDS, MINISTRY OF LANDS SURVEY AND TOWN PLANNING, ANAMBRA STATE Respondent(s)
RATIO
WHETHER OR NOT FACTS NOT CHALLENGED IN AN AFFIDAVIT IS DEEMED ADMITTED BY THE ADVERSE PARTY
The averment about the existence of a pending appeal in respect of the property was not controverted or denied by the Appellant. Of important note is the basic principle of law that where facts in an affidavit are not challenged or controverted by the adverse party, the trial Court has the right to deem same as admitted by the adverse party. Once a party has placed facts in an affidavit it becomes the responsibility of the adverse party to contradict those facts in a counter affidavit if they do not represent the accurate position. The appellant made no attempt to contradict the said averment contained in the respondents counter affidavit. The Supreme Court in GODWIN UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-20092(SC) held that affidavit evidence that is neither challenged nor rebutted remains good and reliable evidence which ought to be relied upon by the Court. PER UMAR, J.C.A.
WHETHER OR NOT WHERE AN AVERMENT IN AN AFFIDAVIT IS ADMITTED, IT CEASES TO BE IN CONTROVERSY BETWEEN THE PARTIES
On this note, I have come to the conclusion that the lower Court was right to believe the existence of a pending appeal. The Supreme Court held in MABAMIJE V. OTTO (2016) LPELR-26058 (SC); INEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR-19769(SC).
It is trite law that where an averment in an affidavit is admitted, either because it is expressly admitted or because it is impliedly admitted by the omission of appellant to controvert it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact. PER UMAR, J.C.A.
WHETHER OR NOT THE COURT CAN MAKE AN ORDER WHICH IS UNENFORCEABLE
It is settled law that a Court of justice will not make an order which is unenforceable. I am therefore of the view that the learned trial Judge was right when he dismissed the application in order to avoid granting an order which is capable or rendering the pending appeal nugatory or making the orders of the Court unenforceable. PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the Anambra State High Court of Justice, Holden at Awka, Anambra State in Suit No. A/MISC.55/2011 Coram Honourable Justice C.A. Emembolu delivered on the 20th June, 2013.
The Plaintiff/Applicant now Appellant pursuant to the leave granted him on the 12th December 2011 in line with the Motion Ex Parte filed on the 23rd August 2011, filed a Motion on Notice on the 8th March, 2012 at the lower Court seeking for the following reliefs, namely:
1. AN ORDER OF MANDAMUS compelling and/or commanding the first defendant to discharge a public duty, namely, to grant consent to the transaction evidenced by the Deed of Assignment between MESSRS LUIS VINCENTE BARROS MATTOS JUNIOR, LEO WALLACE COCHRAINE JUNIOR, JORGE WALLACE SIMONSEN JUNIOR AND ROLAND WALLACE SIMONSEN (for themselves and all other assignees of the former majority shareholders of BANCO NOROESTE A.S. AND STANTON DEVELOPMENT CORPORATION (ASSIGNOERS) AND TREASURE MUCH LIMITED (ASSIGNEE) in respect of the landed property knows as lot 13, Park Road, G.R.A., Onitsha, otherwise known
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as PACIFIC CENTRE, Awka Road, Onitsha.
2. AN ORDER OF MANDAMUS compelling and/or commanding the second defendant to discharge a public duty, namely, to register in the Deeds Registry of the Anambra State Ministry of Lands, Survey, and Town Planning, the registrable instrument namely, the Deed of Assignment between MESSRS LUIS VINCENTE BARROS MATTOS JUNIOR, LEO WALLACE COCHRAINE JUNIOR, JORGE WALLACE SIMONSEN JUNIOR AND ROLAND WALLACE SIMONSEN (for themselves and all other assignees of the former majority shareholders of BANCO NOROESTE A.S AND STANTON DEVELOPMENT CORPORATION (ASSIGNORS) AND TREASURE MUCH LIMITED (ASSIGNEE) in respect of the landed property knows as lot 13, Park Road, G.R.A., Onitsha, otherwise known as PACIFIC CENTRE, Awka Road, Onitsha.
Issues were joined by the parties at the trial Court. The Respondents filed a Counter affidavit and written address in opposition to the originating motion on 8th March 2012.
On 20th of June 2013, the lower Court considered the Motion on Notice filed on 8th March, 2012 and other processes exchanged by the parties as identified in the preceding paragraphs.
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The lower Court in its considered
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judgment delivered on 20th June 2013 in favour of the Respondent concluded as follows: In the instant it is admitted that there is an appeal on the subject matter in this suit which is pending. The Court cannot pronounce on a case which is subject of appeal. In ODUNDUN V ADARAMOLA (1986) 5 NWLR 627 Per Akpata J.C.A. It is trite law that a Court will not issue an order which is unenforceable. See WOLUCHEM V. WOKOMA (1974) 3 SC 153 AT 172. So also will a Court not make an order which though enforceable, will in all probability turn out to be a futile exercise. Therefore where the order sought if granted, will only amount to a means towards an end and it is not established that the desired end will be attained if the order is made the Court will refuse the application. The Court will not make order in Vain. ?Equity like nature, does nothing in vain?.
The lower Court then went ahead and dismissed the suit for lacking in merit. See page 120 of the records of appeal. Aggrieved with the outcome of the suit, the Appellant filed a Notice of Appeal dated 15th July 2013 and filed on the 15th July 2013. The Notice of Appeal contained 2 grounds of Appeal.
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The grounds and the particulars are reproduced below thus:
1. The Learned trial Judge erred in Law in dismissing the application for grant of the orders of Mandamus sought against the respondent in SUIT No: A/MISC.55/2011 (now respondents in this appeal) which orders were duly set out on Pages 1-2 of the trial Court?s judgement.
Particulars of Error:
i. The Learned trial Judge found as a fact in the judgement thus: ?I am of the view that the applicant has satisfied all the conditions for issue of an order of Mandamus to enforce the performance of public duties?.
ii. The learned trial Judge also found that: ?In the case at hand there has not been inordinate delay on the part of the applicant.?
iii. In the premises, the inevitable conclusion which the lower Court was bound to arrive at is that the application for the orders of Mandamus has merit and to grant them as prayed.
iv. It was a grave error for the learned trial judge to dismiss the application as lacking in merit after holding that the applicant has satisfied all the conditions for the issue of the mandamus orders.
2. The learned Trial
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judge erred in Law in holding in the judgement thus:
?In this instance it is admitted that there is an appeal on the subject matter in this suit which is pending. The Court cannot pronounce on a case which is subject of appeal. The Court cannot pronounce on a case which is subject of appeal. In ODUNDUN V. ADARAMOLA (1986) 5 N.W.L.R. 627 PER AKPATA J.C.A. 627 per Akpata J.C.A. it is trite law that a Court will not issue an order which is unenforceable. See WOLUCHEM V. WOKOMA (1974) 3 S.C 153 AT 172. So also will a Court not make an order which though enforceable, will in all probability turn out to be a futile exercise. Therefore where the order sought if granted would only amount to a means towards an end and it is not established that the desired end will be attained if the order is made, the Court will refuse the application. The Court will not make an order in vain. Equity like nature does nothing in vain. I hereby dismiss the application of the applicant for lacking in merit?.
PARTICULARS OF ERROR
i. The learned judge ignored the fact that he had earlier in his judgement identified only one issue for determination in the
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application, namely: ?Whether the applicant can be granted an order of mandamus compelling the 1st defendant to discharge his official duty
ii. There is no evidence that any of the parties to the application is a party to the alleged appeal.
iii. No notice of appeal was exhibited before the learned judge to prove the existence of any appeal.
iv. The issuance of Mandamus orders in this case is to compel the 1st Respondent to grant his consent to a Deed of Assignment which he demanded and received all payments for the grant of consent and to compel the 2nd Respondent to register the Deed, all of which duties have nothing to do with the alleged appeal.
v. The reliefs been sought in the alleged appeal are not before the learned trial judge and were not disclosed to the trial Court.
vi. There is undisputed evidence before the lower Court that the same Government of Anambra State had registered the Lagos State High Court judgement in its Lands Registry at Awka in spite of the alleged appeal against the judgement only to turn round to refuse to register the Deed of Assignment evidencing a sale transaction carried out on the
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authority of the registered judgement.
In line with the Rules of this Court briefs of arguments were duly filed and adopted on 27/3/19. The Appellant formulated one issue for determination in the Brief of Argument prepared by B.E.I. Nwofor, SAN, thus:
?Whether the learned trial judge was right in dismissing the appellant?s application for grant of mandamus orders as lacking in merit after holding that the appellant has satisfied all the conditions for the issue of the mandamus orders
The respondent formulated two issues for determination the Brief of Argument prepared by L. E. Nwangwu, thus:
1. Whether the learned trial judge was right in dismissing the appellant?s application for grant of mandamus orders as lacking in merit after holding that the appellant has satisfied all the conditions for the issue of the mandamus orders
2. Whether the appellant?s application before the High Court was not caught up by limitation Rule/ Statue Barred
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I have appraised the two sets of issues formulated by the learned counsel to the parties in this appeal as reproduced supra, the issue raised in the
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appellant’s brief of argument appear to me to have captured all the grievances or complaints against the judgment of the lower Court.
Learned Counsel for the appellant submitted on the sole issue that the Learned Trial Judge found as a fact in his judgment on page 119 lines 28 to 30 of the record of appeal thus:-
?I am of the view that the applicant has satisfied all the conditions for issue of an order of mandamus to enforce the performance of public duties?
It was the submission of learned Counsel that the lower Court having found that the applicant has satisfied all the conditions for the grant of an order of mandamus as prayed ought to have held that the application for the orders of mandamus has merit and to grant the orders as prayed, it is patently inconsistent and contradictory in terms for the learned trial judge after holding that the appellant has satisfied all the conditions for the grant of mandamus order, to turn round to dismiss the application. The learned counsel relying on case of MOHAMMED MUSTAPHA ALI CO. LTD. V. ALHAJl ISA GONI (2006) 10 N.W.L.R. (Pt. 987) 88 p.109 argued that inconsistency is abhorred by the
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law. The Learned Counsel further argue that by the operation of the rule of estoppel, the Court is forbidden from approbating and reprobating or blowing hot and cold at the same time. He referred this Honourable Court to the authorities of MRS. ALERO JADESIMI V. MRS. VICTORIA OKOTIE-EBOH & 3 ORS. (1989) 4 N.W.L.R. (Pt. 113) 113 p.125; GREGORY OBI UDE V CLEMENT NWARA & ANOR. (1993) 2 N.W.L.R (Pt. 278) 638 p.662.
The learned counsel submitted that none of the parties in the instant appeal has appealed against the findings of facts by the lower Court that the applicant has satisfied all the conditions for grant of an order of mandamus to enforce the performance of public duties. Learned counsel relying on DODO DABO V. ALHAJI IKIRA ABDULLAHI (2005) 7 N. W. L. R. (Pt. 923) 181 argued that the law is firmly established that if a finding of a trial Court whether on an issue of fact or law is not challenged in an appeal against the judgment, such a finding or decision rightly or wrongly must not be disturbed.
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Learned counsel submitted further that the observation of the learned trial judge in page 120 lines 4 of the record of appeal that there is a
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pending appeal on the subject matter in this suit, is not supported by any evidence on record and a Court of law is to decide cases based on the evidence adduced by the parties before it. He cited the cases of AIYETORO COMMUNITY TRADING CO. LTD. V NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD. (2003) 12 N.W.L.R. (Pt. 834) 346 p.375-376; SAADU A. SALIMAN V. KWARA STATE POLYTECHNIC & 2 ORS (2006) 5 N.W.L.R. (Pt. 974) 477 p. 488 and submitted that neither the parties nor the Court should speculate on the existence or otherwise of facts.
The learned counsel submitted that it is not enough to allege that there is ?an appeal on the subject matter in this suit which is pending?, the Respondent ought to have provided proof of the subsistence of the alleged appeal. Counsel to the Appellant submitted further the burden of proof is on the party who asserts. He urged this Court to allow the appeal and grant the reliefs contained the notice of appeal filed by the appellant.
In response to the submissions of the Appellant, the counsel to the respondent submitted that there was no inconsistency in the decision of the lower Court as alleged by
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the counsel to the Appellant. The learned counsel further submitted that the Appellant did not controvert the averment that there was a pending appeal as contained in a counter affidavit filed by the respondent at the Court below. He referred the Court to pages 7 to 10, particularly at page 8 lines 6 to 7 of the record of appeal. According to learned counsel to the respondent the averment that there was a pending appeal in respect of the same subject matter of the suit before the lower Court was not controverted. He submitted that the failure of the Appellant to controvert the averment that there is an existing appeal is very fatal as the fact under consideration is deemed admitted.
He argued that the suit is based on affidavit evidence and the effect of facts admitted is that it need not be proved by evidence. The counsel cited the case of Confidence INSURANCE LTD V. TRUSTEE OF O.S.C.E (1999) 2 NWLR (PT. 591) 373 RATIO 13 and argued that the basis of the principle that fact admitted requires no proof is hinged on the legal conclusion that a party has no duty to prove facts which on the pleadings have been admitted (in the instant case the affidavit) by
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the other party flows from the two premises that what is not denied is deemed admitted and what is admitted need not be proved.
The learned counsel further argued that following the position of the law in ADIKE V. OBIARERI (2002) 4 NWLR (PT 758) 537; DARAMOLA V.A.G. ONDO STATE (2000) FWLR (PT. 6) any deposition in an affidavit not challenged or controverted is deemed accepted and should be acted upon by the Court. Paragraphs of affidavit not specifically denied are deemed admitted.
The learned counsel relying on the case of OGBU V. THE STATE (2007) 3 FWLR (PT. 377) 4193 RATIO 2 submitted that the learned trial Court is not expected in the circumstance of non-denial of the pendency of an appeal by the appellant to look for extraneous/further evidence as proof that an appeal exist.
The learned counsel responding to the submission of the appellant that the trial Court speculated some facts contented that the Learned trial Court did not speculate as to whether there is a pending appeal or not. The learned counsel submitted that the appellant did not contradict the averment about the pending appeal contained in the counter affidavit before the
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Court. He submitted that the onus of proof does not exist in vacuum, the onus or burden of proof is merely an onus to prove or establish an issue and there are no issues in dispute between the parties. The learned counsel placing reliance on ADEDEJI V. OLOSO (2007) VOL. 12 WRN P. 114-182 RATIO 4; LAWRENCE ONYEKAONWU AND ORS V. EKWUBIRI (1966) ALL NLR 32 P. 35 submitted that the duty and function of a Court is not to look for evidence or proof of facts which has already been admitted.
ISSUE TWO
On this issue the learned counsel submitted that the Appellants application for mandamus was brought three months after the occurrences of the event consequent upon which the application for mandamus was brought. The learned counsel referred this Honourable Court to Order 40 Rule 4 Anambra State High Court Civil Procedure Rules 2006. The learned counsel further submitted that it is the law that statue barred defence must be raised as an issue and this was done by the Respondent during the trial of this case. The learned counsel referred this Honourable Court to the case of KETU V. ONIKORO (1984) 10 SC 265; LEVENTIS TECH. LTD V. PETRO JESSICAL ENTER LTD
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(1992) 2 NWLR (PT. 224) 459 RATIO 7.
The learned counsel urged this Honorable Court to dismiss the Appellant application and uphold the judgment of the lower Court.
I have painstakingly read through the pages of the record of appeal before this Honorable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal.
The crux of this appeal is anchored on the decision of the lower Court dismissing the application for grant of the orders of mandamus sought against the respondents. The set out question to be considered is whether the Court below was right in dismissing the appellants application for grant of mandamus orders as lacking in merit after holding that the appellant has satisfied all the conditions for the issue of the mandamus orders.
It is established from the records of appeal in the instant case by the respondent that there was an existing appeal in respect of the landed property knows as lot 13, Park Road, G.R.A., Onitsha, otherwise known as PACIFIC CENTRE, Awka Road, Onitsha. The aforementioned property is subject of appeal in charge No. ID/92C/2004 FEDERAL
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REPUBLIC OF NIGERIA V. EMMANUEL NWUDE & 6 ORS as contained in the affidavit evidence placed before the Court by the Respondent. The aforementioned property is the property which the Appellant is seeking for an order of Mandamus to compel the 2nd Respondent to register in the Deeds Registry of the Anambra State Ministry of Lands, Survey, and Town Planning.
The averment about the existence of a pending appeal in respect of the property was not controverted or denied by the Appellant. Of important note is the basic principle of law that where facts in an affidavit are not challenged or controverted by the adverse party, the trial Court has the right to deem same as admitted by the adverse party. Once a party has placed facts in an affidavit it becomes the responsibility of the adverse party to contradict those facts in a counter affidavit if they do not represent the accurate position. The appellant made no attempt to contradict the said averment contained in the respondents counter affidavit. The Supreme Court in GODWIN UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-20092(SC) held that affidavit evidence that is neither challenged nor rebutted remains
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good and reliable evidence which ought to be relied upon by the Court. It is apparent that the lower Court merely acted on the admission of the depositions contained in the affidavit as it should.
The Appellant had the responsibility to controvert the averment in the counter affidavit in respect of the existence of a pending appeal by filing a reply affidavit. This, the Appellant failed to do. It must be noted that the averment in affidavit constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. On this note, I have come to the conclusion that the lower Court was right to believe the existence of a pending appeal. The Supreme Court held in MABAMIJE V. OTTO (2016) LPELR-26058 (SC); INEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR-19769(SC).
It is trite law that where an averment in an affidavit is admitted, either because it is expressly admitted or because it is impliedly admitted by the omission of appellant to controvert it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact.
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The fact that the property is a subject of appeal in charge No. ID/92C/2004 FEDERAL REPUBLIC OF NIGERIA V. EMMANUEL NWUDE & 6 ORS as contained in the in the counter affidavit of the Respondent, being uncontroverted is deemed admitted. When the fact averred by the respondent is admitted by the appellant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. This principle was restated in the case of KOMOLAFE v. FRN (2018) LPELR-44496(SC) thus: “The law is settled beyond argument that facts admitted requires no further proof?. There are too many decided cases on this principle. In the light of this, no further proof is required on the part of the Respondent to establish that an appeal exist. A consideration of the judgment of the lower Court also reveals to me that the trial Court was right to have relied on the uncontroverted averment in the affidavit of the Respondent in respect of the existence of a pending appeal on the subject matter for which the lower Court has been called upon to make an order Mandamus.
I therefore do not see the rationale behind the submission of the Appellant that
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the lower Court ought to have made an order of Mandamus when the fact of an existing appeal in respect of the same subject matter was not controverted.
Any decision of the lower Court in respect of the property which is a subject matter on appeal is capable to render the result of the Appeal nugatory and hence the learned trial judge was right to have dismissed the case. See MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT 278 – 279. The grant of the order Mandamus could set the Court on a collision course with the decision of the Court of Appeal or render the decision unenforceable. It is settled law that a Court of justice will not make an order which is unenforceable. I am therefore of the view that the learned trial Judge was right when he dismissed the application in order to avoid granting an order which is capable or rendering the pending appeal nugatory or making the orders of the Court unenforceable.
This appeal lacks merit and it is hereby dismissed and the judgment of Hon. Justice C.A. EMEMBOLU delivered on 20th JUNE, 2013 is hereby affirmed.
?MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared
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by my learned brother ABUBAKAR SADIQ UMAR – JCA dismissing this appeal.
The narrow but vital scope of this appeal is the effect of the non-controversion of an averment in pleadings or a deposition in an affidavit. It is a well established principle of law that what is admitted needs no further proof. This principle was expounded in DIN V. AFRICAN Newspapers of (Nig) Ltd (1990) 3 NWLR (Pt. 139) 392 per Karibi-Whyte, J.S.C thus;
?..Resort could be had to the elementary rule of pleading that what has been admitted requires no further proof… ”
It was further reiterated in OLAIYA V. STATE (2017) LPELR ? 43714 (SC) per Eko, J.S.C that;
?…facts admitted, or facts not disputed, need no further proof. They are, in law, taken as proved and/or established…”
Similarly, Ariwoola, J.S.C. states thus;
?.. it is trite law and now fully settled that whatever fact is admitted needs no further poof… ” See MBA V. MBA (2018) LPELR ? 44295 (SC).
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It has been shown that the suit in contention is pending on appeal. The particulars of the said suit were provided without a response from the Appellant.
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Silence is taken as admission in civil matters.
I too hereby dismiss this appeal. I adopt the order as to cost made in the lead Judgment.
?MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
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Appearances:
Onyechi Araka with him, F.C. NwogbohFor Appellant(s)
C. E. Nwaugwu, Esq. (Chief State Counsel, Ministry of Justice, Anambra State)For Respondent(s)
Appearances
Onyechi Araka with him, F.C. NwogbohFor Appellant
AND
C. E. Nwaugwu, Esq. (Chief State Counsel, Ministry of Justice, Anambra State)For Respondent