UBAH v. UBAH & ANOR
(2020)LCN/15620(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, October 27, 2020
CA/KN/426/2017
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
CHARLES CHUKWUDI UBAH APPELANT(S)
And
1. PAUL CHINEDU UBAH 2. MR. HUMPHREY IKECHUKWU UBAH (FOR THEMSELVES AND ON BEHALF OF THE GODFREY CHIMA UBAH FAMILY OF ARONDIZUOGU, IMO STATE EXCEPT THE APPELLANT) RESPONDENT(S)
RATIO:
THE GROUND OF APPEAL MUST BE CONSISTENT WITH PRINTED RECORD OF WHAT TRANSPIRED AT THE LOWER COURT
Now, it is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court –V S Steel (Nig) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufeko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.” HABEEB OLUMUYIWA ABIRU,J.C.A
THE SUBJECT MATTER OF ANY DISPUTE IS CONTAINED ON BOTH AFFIDAVITS OF THE PARTIES
In granting the order of interlocutory injunction restraining the Appellant from evicting the first Respondent from the property at No 101, Church Road, Sabon Gari and from selling the property pending the hearing and determination of the substantive suit, the lower Court stated in the Ruling thus:
“… The brief facts of this case are as contained on both affidavits of the parties. It is settled principle of law that Court possesses the power to preserve the subject matter of any dispute before it in order to allow the parties to ventilate their grievances. This being so, the Court act very fast to preserve the res from destruction in order to maintain a balance between the contending parties before it…
It is submitted on behalf of the applicants that to succeed in this application they have shown that they have a legal right in the disputed property, the infringement of which they seek to protect. Learned counsel referred the Court to … the supporting affidavit which clearly shows that the Plaintiffs/Applicants have lived in the house for over a decade.
In my view this is an appropriate case in which the Court ought to grant an injunction to preserve the Res.” HABEEB OLUMUYIWA ABIRU,J.C.A
THE DEFINITION AND IMPORTANCE OF INTERLOCUTORY INJUNCTION
The injunction in question in this appeal is an interlocutory injunction. This is an injunction which a Court of law grants on notice in the course or pendency of the litigation, and which lasts until the final determination or conclusion of it. It is granted to protect the res in dispute at a time when the true owner is yet to be ascertained pending the determination of the dispute between the parties – Salami Vs Yahyah (2009) 17 NWLR (Pt 1171) 581. It is granted to prevent the continuation of an alleged wrongful act – Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553. By an interlocutory injunction, the res is kept in its original form and content pending the final determination or conclusion of the case. HABEEB ADEWALE OLUMUYIWA ABIRU,J.C.A
THE ABUSE OF THE INTERLOCUTORY APPEAL PROCEDURE
This appeal is completely unnecessary and it is obvious that it was propelled either by the ego of the Appellant or by the misguidance of the Appellant by his Counsel. The time spent in prosecuting this appeal, March 2017 to October 2020, is more than sufficient time for the lower Court to have heard and disposed of the substantive suit. An interlocutory appeal is an aberration in the process of judicial adjudication; it is abnormal. It convolutes, confuses and corrodes the efficiency and effectiveness of the justice delivery system. Therefore, it is a procedure that should only be embarked upon in respect of questions that are fundamental to and which are at the core of the resolution of the substantive dispute submitted to Court for adjudication, not those that deal with peripheral matters or those that can be taken along with the substantive suit. It should not be used flippantly or to satisfy the ego, whims and caprices or greed of an appellant or of his Counsel. The Courts, including the Supreme Court, have lamented over the years on the abuse of the interlocutory appeal procedure. The lamentations have yielded no result and interlocutory appeals have become an unbearable burden on the justice system. HABEEB ADEWALE OLUMUYIWA ABIRU ,J.C.A
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the High Court of Kano State in Suit No K/376/2016 delivered by Honorable Justice Usman Mallam Na’Abba on the 1st of March, 2017.
The Respondents and the persons they represent, and the Appellant are children of the same father, but different mothers and the dispute leading up to the present case revolves around the administration of the Estate of their late father, Godfrey Chimah Ubah. The Respondents were the claimants before the lower Court while the Appellant and the Probate Registrar of the High Court of Kano State were the first and second defendants. The claims of the Respondents were for:
i. A declaration that the Appellant’s act of solely applying for and obtaining Letters of Administration dated 19th of May, 2016 without the notice of the Respondents and without authorization and approval of the Respondents is illegal, null and void.
ii. An order of Court revoking/setting aside the Letters of Administration issued by the second defendant in favour of the Appellant to administer the personal properties of Godfrey Chimah Ubah (deceased) which Letter of Administration is dated 19th of May, 2016.
iii. An order restraining the Appellant from parading himself as the sole administrator of the Estate of Late Godfrey Chimah Ubah or further taking any step whatsoever to carry out the duties as Sole Administrator of the Estate of Late Godfrey Chimah Ubah pending the determination of this suit.
iv. An order of perpetual injunction restraining the Appellant, his agents, servants, privies or otherwise howsoever from further attempt to forcefully eject the first Respondent from the property at 101, Church Road, Sabongari, Kano, Kano State or selling the property.
v. An order directing the Appellant to render account of the proceeds of the aforesaid property(s) to the Respondents and as well deposit the title documents with the Court.
vi. The total sum of N2 Million representing Solicitor’s fees.
The Respondents filed requisite processes in support of their claims and the Appellant responded by filing a statement of defence and counterclaim, wherein he claimed as follows:
i. The outstanding sum of the first Respondent’s annual rent arrears and unaccounted for monies realized from the Borehole Water Project, both for more than a decade totaling the sum of N3 Million.
ii. An order of the Honorable Court directing the first Respondent to hands off the management of the Borehole Water Project and hand same back to the Appellant as part of the Estate of late Chief (Mazi) G. C. Ubah giving him the legal authority to manage same.
iii. Interest on 10% on the judgment sum until full settlement.
What is obvious from the processes filed by the parties is that the dispute revolves around the power of management and control of the property situate at No 101, Church Street, Sabongari, Kano, Kano State. The property was owned by the Late Chief Godfrey Chimah Ubah and the dispute, which is principally between the Appellant, the first son, and the first Respondent, the second son, dated back to during the lifetime of Late Chief Godfrey Chimah Ubah. There had been Court actions before the Magistrate Court and the High Court of Kano State between the parties. There had been a customary arbitration before the Traditional Court of the Eze of Arondizuogu and there was a pending criminal proceeding for criminal trespass and forgery commenced by a First Information Report before the Magistrate Court in Kano. In an earlier Court action commenced by the first Respondent, as claimant, against the Appellant, as defendant, in the High Court of Kano State Suit No K/456/2015, the first Respondent filed a motion on notice praying for:
i. An order of interlocutory injunction restraining the Appellant from collecting rent, assigning, charging, pledging, mortgaging, alienating or otherwise dealing with the property at No 101, Church Road, Sabon Gari, Kano, Kano State pending the hearing and determination of the suit.
ii. An order of interlocutory injunction restraining the Appellant, his agents and servants from collecting rent and or with the management and control of the premises at No 101, Church Road, Sabon Gari, Kano, Kano State pending the hearing and determination of the suit.
iii. An order of Court appointing a receiver manager to manage and supervise the management of No 101, Church Road, Sabon Gari, Kano, Kano State, and to receive rents from tenants thereon and pay such sums of money into an account as may be designated by the Honorable Court
iv. An order of Court that security be taken for the appearance of the Appellant to answer and satisfy any judgment that may be passed against him in this suit.
v. An order of the Court for the issuance of warrant to bring the Appellant before the Court that he may show cause why he should not give good and sufficient bail for his appearance.
The High Court of Kano State heard this motion on the merits and dismissed same as lacking in merit in a considered Ruling delivered on the 16th of May, 2016. It was the case of the Appellant that the substantive suit was also struck out.
The present action was commenced by a Writ of Summons dated and filed on the 25th of August, 2016. The records of appeal show that the Respondents filed a motion ex parte in the present suit praying for:
i. An order of interim injunction restraining the Appellant, his agents, servants, privies or otherwise howsoever from taking any further step in whatsoever manner with a view to forcefully eject the first Respondent from the property at 101, Church Road, Sabongari, Kano, Kano State or sell the property pending the determination of the motion on notice.
ii. An order restraining the Appellant from parading himself as the sole administrator of the Estate of Late Godfrey Chimah Ubah or further taking any step whatsoever to carry out the duties as Sole Administrator of the Estate of Late Godfrey Chimah Ubah pending the determination of the motion on notice.
iii. An order directing the Appellant to deposit the title documents in respect of the property known as 101, Church Street, Sabongari, Kano, Kano State with the Honorable Court pending the determination of the motion on notice.
The application was supported by an affidavit with several exhibits attached. The records of appeal again show that the Respondents also filed a motion on notice praying for similar orders as those on the motion ex parte, but pending the hearing and determination of the substantive suit. The records of appeal further show that the lower Court heard the motion ex parte and granted same as prayed on the 27th of September, 2016 and it adjourned the matter for the hearing of the motion on notice. In response to the motion on notice, the Appellant filed a counter affidavit and to which were attached several exhibits. The Respondents filed a further affidavit in support of the motion with additional exhibits attached. The lower Court heard the motion on the merits and it delivered a considered Ruling wherein it granted the first prayer on the motion paper and it refused the second and third prayers.
The Appellant was dissatisfied with the Ruling and he caused his Counsel to file a notice of appeal containing five grounds of appeal and dated the 13th of March, 2017 against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 28th of March, 2018 on the 19th of April, 2018. In response, Counsel to the Respondents filed a brief of arguments dated the 17th of May, 2018 on the 18th of May, 2018. Counsel to the Appellant filed a Reply brief of arguments dated the 10th of September, 2018 on the 12th of September, 2018 and the Reply brief of arguments was deemed properly filed and served by this Court on the 28th of November, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.
Counsel to the Appellant distilled four issues for determination and these were:
i. Whether the High Court of Justice Kano State had the jurisdiction/competence to hear and determine a similar application already dismissed by the same High Court of Kano State in Suit No K/456/15 between the same parties, subject matter and on the same issues.
ii. Whether the principle of estoppel per rem judicatam which was well raised by the Appellant does not apply to the present motion and in respect of which the Ruling appealed against was delivered.
iii. Whether the failure to seek and obtain leave to sue in a representative capacity in this matter or failure by the lower Court to consider and rule on such issue does not vitiate the entire suit/Ruling.
iv. Whether the holding of the trial Court was supported by the facts before it.
On his part, Counsel to the Respondents distilled two issues for determination in the appeal and these were:
i. Whether the trial Court was right in preserving the res and restraining the Appellant from ejecting the first Respondent from the subject matter of the dispute pending the determination of the substantive suit in the Ruling.
ii. Whether the trial Court was competent to determine the motion on notice of the Respondents.
Now, it is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court –V S Steel (Nig) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufeko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”
The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same – Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1, Ojo Vs State (2018) LPELR 44699(SC), Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1636) 229. Reading through the records of appeal, particularly the written addresses filed by Counsel to the parties in arguing the motion on notice in question, the third issue for determination formulated by Counsel to the Appellant, and which he said was distilled from Ground Three on the notice of appeal, was not one of issues canvassed or raised before the lower Court and it was not pronounced upon by the lower Court in the Ruling appealed against. The records of this Court do not show that the Appellant obtained leave to raise the issue in this appeal. The issue is thus incompetent and it is hereby struck out along with the arguments canvassed thereon by Counsel to the parties.
Reading through the processes filed in the lower Court, the Ruling of the lower Court and the arguments canvassed in the respective briefs of arguments of the parties, it is the view of this Court that there are only two issues for determination in this appeal. These are:
i. Whether, on the facts and circumstances of the case, the lower Court had the jurisdictional competence to hear and determine the motion on notice for interlocutory injunction filed by the Respondents.
ii. Whether the decision of the lower Court granting the first prayer on the motion paper was supported by the facts before it.
This appeal will be resolved on these issues for determination and the arguments canvassed by Counsel to the parties in their respective briefs of arguments will be considered under the two issues for determination. The two issues for determination will be considered seriatim.
Issue One
Whether, on the facts and circumstances of the case, the lower Court had the jurisdictional competence to hear and determine the motion on notice for interlocutory injunction filed by the Respondents.
In arguing this issue for determination, Counsel to the Appellant referred to the motion on notice for injunction filed by the first Respondent in Suit No K/456/15 and which was heard and dismissed by the High Court of Kano State, and stated that the prayers sought on that motion were the same or similar to those sought on the motion on notice filed in the present suit and that the parties, the subject matter and the exhibits relied upon were the same in that suit and in the present action. Counsel stated that rather than appeal against the dismissal of the motion in that suit, the Respondents chose to file the present action and to file a motion seeking for similar prayers and that the lower Court was not competent to hear the present motion as it would amount to revisiting and granting prayers it had earlier refused and it would amount to the lower Court sitting on appeal on its Ruling in the earlier suit and he referred to the case of Ogunsola Vs Usman (2003) FWLR (Pt 180) 1465.
Counsel stated that the decision of the High Court of Kano State dismissing the motion on notice filed by the first Respondent in Suit No K/456/15 was an appealable decision and that the option left for the Respondents was to appeal against the decision and not to file a fresh suit and re-present the same motion because, having been dismissed, the motion was dead and could not be resuscitated by relisting or by way of a fresh application and he referred to the cases of PDP Vs Godwin (2017) All FWLR (Pt 890) 600 and Yinusa Vs State (2017) All FWLR (Pt 910) 309. Counsel stated that the principle of estoppel per rem judicata operated against the hearing of the present motion by the lower Court because the parties in the earlier motion dismissed by the High Court of Kano State, the prayers sought therein and the subject matter were the same as in the present application and he referred to the case of Omnia Nigeria Ltd Vs Dyk-Trade Limited (2007) All FWLR (Pt 394) 201 in enumerating the instances when estoppel per rem judicata arises. Counsel reiterated the conditions that must exist for the plea of estoppel per rem judicata to operate and stated that all the conditions were present in the present case. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
On his part, Counsel to the Respondents reproduced the prayers sought on the motion on notice that was dismissed in Suit No K/456/15 and the prayers sought on the motion on notice filed before the lower Court in the present suit and stated that the prayers on both applications were not the same or similar and that the entire contentions of Counsel to the Appellant on the point were designed to mislead the Court. Counsel stated that the claims, the parties and the issues that arose before the Court in Suit No K/456/15 and those in the present action were not the same and that as such the lower Court was competent to hear the application and it was not a case of a Court of coordinate jurisdiction sitting on appeal over the Ruling of the High Court of Kano State. Counsel too referred to the case of Omnia Nigeria Ltd Vs Dyk-Trade Limited (2007) All FWLR (Pt 394) 201 in restating the conditions that must exist for the plea of estoppel per rem judicata to apply and he stated that those conditions were non-existent in the present circumstances. Counsel urged the Court to discountenance the submissions of Counsel to the Appellant and to resolve the issue for determination in favour of the Respondents.
This Court must state from the onset that it finds the arguments of Counsel to the Appellant on this issue for determination rather odd and very strange. This appeal is in respect of the Ruling delivered by the lower Court in respect of a motion on notice seeking for an order of interlocutory injunction, amongst other orders, filed by the Respondents in the lower Court. It is not in respect of a Ruling on a motion challenging the competence of the substantive action before the lower Court. The first Respondent filed an earlier action in Suit No K/456/15 before the lower Court and he filed a motion on notice seeking for orders of interlocutory injunction, amongst other orders, in that suit. The motion was heard and dismissed by the lower Court and, according to the Appellant, the first Respondent consequently withdrew the suit and it was struck out. The Respondents thereafter commenced the present suit and filed the motion on notice, the Ruling on which has led to this appeal.
Counsel to the Appellant has urged this Court to hold that the lower Court lacked the requisite competence to hear and determine the motion because the motion amounted to an abuse of process and violated the doctrine of estoppel per rem judicatam, on the strength of the motion filed and dismissed by the lower Court in the earlier suit, Suit K/456/15. Now, the Appellant did not file a motion on the notice in the lower Court to challenge the competence of the present substantive suit as constituting an abuse of process and/or for violating the doctrine estoppel per rem judicatam on the basis of the said earlier suit. It is elementary that a Court considers a motion on notice within the reliefs sought and the facts averred in support of the substantive suit in which the motion is filed; a Court cannot consider a motion on notice otherwise because a motion is an integral part of the substantive suit – Cooperative and Commerce Bank Plc Vs Ozobu (1998) 3 NWLR (Pt 290) 312, Odedo Vs Peoples Democratic Party (2014) 13 NWLR (Pt 1476) 229.
Therefore, where a party has not filed a motion to contest that a Court lacks competence to hear and determine a substantive action on the grounds of abuse of process and/or violation of the doctrine of estoppel per rem judicatam by reason of the decision given in an earlier action, it would be odd for the party to contend that the Court lacks competence to hear and determine a motion filed in that substantive suit on the ground that the motion constitutes an abuse of process and/or violated the doctrine of estoppel per rem judicatam on the strength of decision given in respect of a motion in that earlier action. A motion exists only within the confines of the reliefs and facts averred on the substantive suit and it cannot suffer from a malaise not plaguing the substantive action. A motion can only amount to an abuse of process and violate the doctrine of estoppel per rem judicatam on the strength of a decision given on a similar motion filed in the same substantive suit. The notion that a motion can amount to an abuse of process and/or a violation of the doctrine of estoppel per rem judicatam on the strength of a decision given on a motion in an earlier action, where there is not motion contesting same against the substantive suit is illogical. It is trite law that where the case contended by a party is extraordinarily in conflict with reason and probability and is of such a nature that it is hostile to reason, a Court is enjoined not to allow itself to be hoodwinked by such false abracadabra and should not lend itself to such unwholesome belief – Okoye Vs Kpajie (1973) NMLR 84, Fashanu Vs Adekoya (1974) 6 SC 83 and Chukwu Construction Co Ltd Vs Uwechia (2000) 2 NWLR (Pt 643) 92.
Going further to consider the merits of the arguments of Counsel to the Appellant for the sake of completeness, the prayer sought on the present motion on notice for, inter alia, interlocutory injunction was an appeal to the discretionary jurisdiction of the lower Court. It is trite that in an application for interlocutory injunction, a trial Judge invokes his equitable jurisdiction which requires him to exercise his discretionary power judicially and judiciously – Duwin Pharmaceutical and Chemical Co Ltd Vs Beneks Pharmaceutical and Cosmetics Ltd (2008) 4 NWLR (Pt 1077) 376, Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356, Gadi Vs Made (2010) 7 NWLR (Pt 1193) 225, Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553. The law is that the fact that a party had filed an earlier application for injunction which was refused does not debar the party from subsequently filing a similar application where need for it arises.
This is in consonance with the principle that states that where the Court is invested with the discretion on whether or not to grant an application, and the grant of the application is not as a matter of right, no limit can be placed on the number of times that an applicant can approach the Court on such application as each application will be considered on its own merits – Ugwajiofo Vs Onyekagbu (1964) 1 All NLR 124, Folorunsho Vs Shaloub (1994) 3 NWLR (Pt 333) 413, Mercantile Group A G Vs Aiyela (1995) 8 NWLR (Pt 414) 450. Provided always that where such an application is brought repeatedly on the same facts and circumstances, it would amount to an abuse of process – Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94 and Umeh Vs Iwu (2008) 8 NWLR (Pt 1089) 225. A look at the facts deposed in the affidavit in support of the motion on notice filed in the earlier Suit No K/456/15 vis-à-vis the facts deposed in the affidavit in support of the present application before the lower Court shows clearly that they are not same and that the circumstances are not the same.
Again, the doctrine of estoppel per rem judicatam postulates that once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither of the parties thereto nor their privies can subsequently be allowed to re-litigate such a matter in Court. A judicial decision properly handed down is conclusive until reversed by a superior Court and its veracity is not open to challenge nor can it be contradicted. The matter is said to be res judicata and the estoppel created is said to be by record inter parties – Odinigi Vs Oyeleke (2001) 6 NWLR (Pt 708) 12, Ntuks Vs Nigerian Ports Authority (2007) 13 NWLR (Pt 1051) 392, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319, Agbogunleri Vs Depo (2008) 3 NWLR (Pt 1074) 217, Daniel Tayar Transport Enterprises Nig Co Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387. It is settled law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or preconditions, namely: (i) that the parties or their privies are the same in both the previous and present proceedings; (ii) that the res or the subject matter of the litigation in the two cases is the same; (iii) that the claim, in case of cause of action estoppel, or the issue or issues in dispute is the same; (iv) that the decision relied upon to support the plea is valid, subsisting and final; and (v) that the Court that gave the decision relied upon is a Court of competent jurisdiction. Unless all these constituent elements or requirements of the doctrine are fully established, the plea cannot be sustained. They must be satisfied conjunctively and failure of any of them is fatal to the plea of res judicata – Fadiora Vs Gbadebo (1978) All NLR 42, Ezewani Vs Onwordi (1986) 4 NWLR (Pt 33) 27, Dauda Vs Attorney General, Lagos State (2011) 13 NWLR (Pt 1265) 427, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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A look at the processes, including the motion on notice, filed in the earlier Suit No K/456/15 shows that it was commenced by the first Respondent, in his personal capacity, against the Appellant. The present action, including the motion on notice, was filed by the first and second Respondents in a representative capacity for themselves and on behalf of some other named persons. It is trite that the capacity in which a party sues or was sued is very relevant in determining sameness of parties for the purpose of estoppel per rem judicatam. The law is that where an action is brought against a defendant personally, and prosecuted to judgment and later a further action is brought against him in a representative capacity by the claimant in the original action, the judgment is not res judicata as the parties to the representative actions are not the same, since one is an action against the defendant personally and the other as representative of a class of persons.
Similarly, where an action is brought by a claimant in a personal capacity against another person, and the action is prosecuted to judgment whereby the defendant succeeds, that judgment is res judicata to the extent that it determines the personal rights of the claimant in the subject matter of the action, but it is not res judicata of any interests the claimant may later represent in an action brought by him in a representative capacity – Cardoso Vs Daniel (1986) 2 NWLR (Pt 20) 1, Ezeanya Vs Okeke (1995) 4 NWLR (Pt 388) 142, Okoromaka Vs Odiri (1995) 7 NWLR (Pt 408) 411, Brown Vs Bassey (2000) 4 NWLR (Pt 651) 1, Bassey Vs Ekanem (2001) 1 NWLR (Pt 694) 360, Dike-Ogu Vs Amadi (2008) 12 NWLR (Pt 1102) 650, Nikagbatse Vs Opuye (2010) 14 NWLR (Pt 1213) 50. The parties in the two actions are thus not the same. Also, a read through the prayers sought on the motion on notice filed in the earlier Suit K/456/15 and on the motion on notice filed in the present suit, as reproduced in the earlier part of this judgment, shows that they are not the same and/or similar. The plea of estoppel per rem judicatam is thus not applicable in the circumstances of this case.
The contentions of Counsel to the Appellant on the first issue for determination are not well founded. The first issue for determination is resolved in favour of the Respondents.
Issue Two
Whether the decision of the lower Court granting the first prayer on the motion paper was supported by the facts before it.
The prayer granted by the lower Court on the motion on notice of the Respondents was an order restraining the Appellant from ejecting the first Respondent from the house situated at No 101, Church Road, Kano and from selling the property pending the hearing and determination of the substantive suit. The facts deposed in the affidavit in support of the application were that the Respondents, eight brothers, and the Appellant were children of the same father, late Chief Godfrey Chima Ubah, from different mothers, and that their late father owned the properties lying and being at 12 Nwangwa Street, Ezuikwu, Aba in Abia State and No 101, Church Street, Sabon Gari, Kano in Kano State. They averred that the Appellant was the first son of the deceased while the first Respondent was the second son and that after the burial of their late father, a family meeting was called to deliberate on appointing two or three persons from amongst the sons to manage and administer the properties of their late father and that the Appellant walked away from the meeting saying that he was not interested in the properties as he was financially capable in his own right.
The Respondents deposed that based on the attitude of the Appellant, and as a precaution, they caused their Solicitors to file a caveat against the properties of their late father and that the caveat was published in the Nation Newspaper of 25th of July, 2016 and it was attached as Exhibit A. They averred that they caused their Solicitors to forward the caveat to the Probate Registrar of the High Court of Kano undercover of a letter dated the 25th of July, 2016 and that the Probate Registrar responded by a letter informing their Solicitors that the Appellant applied for the letters of administration of their late father’s estate on the 8th of February, 2016 and was issued with same on the 7th of June, 2016, after a publication was made in the Daily Trust Newspaper of the 3rd of May, 2016; both letters were Exhibits B and C. They deposed that they were not aware of the Daily Trust Newspaper publication and that it was from the letter of the Probate Registrar that they learnt that the Appellant had applied for the letters of administration even before the burial of their late father and that at the meeting called after the burial of their father, the Appellant brandished a document which he said was the Will of their later father; the document was Exhibit D.
The Respondents averred that, prior to his death, their late father admonished the Appellant and the first Respondent to live in peace and harmony and to look after his properties and take good care of the family and that the Appellant solely applied for the letters of administration without the consent and approval of the other children; the copy of the letters of administration was attached as Exhibit E. They deposed that the first Respondent had lived in the property at No 101, Church Street, Sabon Gari for many years before the death of their late father and that the Appellant caused him and other tenants in the property to be served with quit notices on the 21st of June, 2016 and 8th of July, 2016; the notice to quit was Exhibit G. They averred that the Appellant thereafter brought some unknown persons to the property to erect a church structure in the center of the premises, with the intent of selling the property after ejecting all the occupants therefrom; the photograph of the structure was Exhibit H. They averred that the Appellant was making frantic efforts to eject the occupants of the premises and to sell same and that it was necessary that an order be made to stop him and to preserve the property.
In the counter affidavit, in response, the Appellant admitted that he and the Respondents were siblings of the same, but different mothers and that their late father had two properties lying and being at 12 Nwangwa Street, Ezuikwu, Aba in Abia State and No 101, Church Street, Sabon Gari, Kano in Kano State. He deposed that their late father bought and built up the property at No 101, Church Street, Sabon Gari, Kano in Kano State in 1956 purely for commercial purposes and that no member of the family resided therein except the first Respondent who moved to reside in the property in 2006 and has remained therein without paying rents till date. He averred that the first Respondent forced out the caretaker appointed by their late father to manage the property and seized control of the management of the property between 2006 and October 2008 and he collected rents from the tenants in the property without rendering account to their late father. He deposed that, at a point in time, their late father called a family meeting whereat their father directed the first Respondent to hands off the management of the property and informed all present that the Appellant would commence the management of the two properties from November, 2008 and their late father gave him a letter of authority and other necessary documents and he managed the property from then till January 2016 when their father died and he rendered all necessary account; letter of authority and other documents were Exhibits C1 and C2.
He deposed that the Respondents have launched unrelenting attacks on him at different times because he was given the authority to manage the properties and that sometime in 2014, the Respondents dragged him before the traditional Court of the Eze of Arondizuogu for a customary arbitration over the right to manage their late father’s property and that judgment was entered in his favour; the judgment was Exhibit D. He averred that sometime in 2015, the first Respondent and his Counsel forged a Power of Attorney by which they said their late father gave both of them, he and the first Respondent, authority to jointly manage the property and their intention was to use same to sell the property and that this caused him to make his Counsel enter a caveat against the property on the 18th of November, 2015; copy of the alleged forged joint power of attorney and the caveat were Exhibits E and G. He averred that he reported the alleged forgery to the Police and who, in the course of investigation, journeyed to their village to meet with his late father and the Chief Magistrate who allegedly signed the Power of Attorney and that the first Respondent and his Counsel have been arraigned on a First Information Report before the Chief Magistrate Court in Kano; the First Information Report was Exhibit J.
He deposed that the first Respondent wrote letters to the Kano State Urban Planning and Development Authority requesting that the agency should demolish the property at No 101, Church Road, Sabon Gari Kano and he also commenced an action making frivolous claim against him and that the motion ex parte filed in that suit was refused while the motion on notice was dismissed; the letters and the Court processes were Exhibits K, L, M1, M2, M3, N1, N2 and N3. He averred that the first Respondent in the months of April, 2016 and August 2016 made frivolous and vexatious allegations against him at the Sabon Gari Police Station and to the office of the Attorney General of Kano State, all in a bid to snatch the management of the property at No 101, Church Road, Sabon Gari against him; the petitions and reply were Exhibits O1, O2 and O3. He deposed that it was after these steps failed that the Respondents commenced the present action and filed the motion on notice with the aim of taking over the management of the property from him and that in fact in the lifetime of their father, their later father directed that ejectment proceedings be commenced against the first Respondent and that same was done, but that the action was later withdrawn; the Court process filed in the proceeding was Exhibit Q. He averred that the document attached as Exhibit D to the affidavit of the Respondents in support of the application was the Native Will of their father and was not a forgery and that he had no intention of selling the property and he denied the entire case of the Respondent and stated that he followed due process in obtaining the letters of administration and that it was in the best interest of justice to refuse the application.
In granting the order of interlocutory injunction restraining the Appellant from evicting the first Respondent from the property at No 101, Church Road, Sabon Gari and from selling the property pending the hearing and determination of the substantive suit, the lower Court stated in the Ruling thus:
“… The brief facts of this case are as contained on both affidavits of the parties. It is settled principle of law that Court possesses the power to preserve the subject matter of any dispute before it in order to allow the parties to ventilate their grievances. This being so, the Court act very fast to preserve the res from destruction in order to maintain a balance between the contending parties before it…
It is submitted on behalf of the applicants that to succeed in this application they have shown that they have a legal right in the disputed property, the infringement of which they seek to protect. Learned counsel referred the Court to … the supporting affidavit which clearly shows that the Plaintiffs/Applicants have lived in the house for over a decade.
In my view this is an appropriate case in which the Court ought to grant an injunction to preserve the Res.”
In arguing the second issue for determination, Counsel to the Appellant stated that the decision of the lower Court was not based on the facts contained in the affidavit of either of the parties or on inference drawn from the facts and he referred to the case of Olanrewaju Vs State (2017) All FWLR (Pt 888) 209 in reiterating the law that it is the primary responsibility of a trial Court to proper assess and evaluate evidence. Counsel referred to the fact of the first Respondent filing an earlier application in Suit No K/456/15 and to the Native Will of the late Chief G. C. Ubah by which he said the deceased shared his properties amongst his children and to the other facts of the prior eviction proceedings against the first Respondent in the lifetime of the deceased, the appointment of the Appellant by the deceased as the sole person managing the properties and the customary arbitration in the Traditional Court of the Eze of Arondizuogu and stated that these facts constituted credible evidence and they were ignored by the lower Court in making its findings. Counsel stated that the decision of the lower Court was perverse for ignoring these credible facts and it thus occasioned a miscarriage of justice and he referred to the cases of Rasaki Vs Ogundimu (2017) All FWLR (Pt 892) 1126 on the meaning of a perverse decision and Ereflyal Vs Eweke (2017) All FWLR (Pt 894) 1520 on the meaning of miscarriage of justice. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
On his part, Counsel to the Respondents referred to the provisions of Order 38 Rule 4 of the High Court of Kano State which he stated gave the lower Court the power to preserve the res of a litigation pending the determination of the substantive suit and he asserted that a trial Court was enjoined to grant an order of interlocutory injunction where it was obvious from the facts deposed by the parties before it that there was a possibility of the destruction of the res and which would render the outcome of the proceedings nugatory and he referred to the case of Effion Vs Ironbar (2000) 3 NWLR (Pt 650) 545. Counsel stated that it was obvious from the facts deposed on the application in the affidavits of the parties that the Appellant was determined to eject the first Respondent from the subject matter property and was making efforts to sell the property outright and that the lower Court was thus correct in making orders to preserve the res of the litigation pending the determination of the substantive suit. Counsel urged the Court to resolve the second issue for determination in favour of the Respondents.
Now, injunction is an equitable relief issued or granted by a Court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants and agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claimant, and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing – Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356.
The injunction in question in this appeal is an interlocutory injunction. This is an injunction which a Court of law grants on notice in the course or pendency of the litigation, and which lasts until the final determination or conclusion of it. It is granted to protect the res in dispute at a time when the true owner is yet to be ascertained pending the determination of the dispute between the parties – Salami Vs Yahyah (2009) 17 NWLR (Pt 1171) 581. It is granted to prevent the continuation of an alleged wrongful act – Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553. By an interlocutory injunction, the res is kept in its original form and content pending the final determination or conclusion of the case. The word “original” here means the position of the res at the time of the commencement of the action by the claimant – Adewale Vs Governor of Ekiti State (2007) 2 NWLR (Pt 1019) 634. Putting it in its ordinary and most elementary language, interlocutory injunction polices the res during the course of the litigation.
In Alhaji Akibu & Ors Vs. Alhaji Oduntan & Ors (1991) 2 NWLR (Pt. 171) 1, the Supreme Court held that an interlocutory injunction is usually granted with the object of keeping matters in status quo until the question at issue between the parties is resolved. The reason behind an interlocutory injunction to maintain status quo, is to preserve the res of the litigation from being wasted, damaged, or frittered away with the result that if the action succeeds, the successful party will reap an empty judgment –Oyeyemi & Ors Vs Irewole Local Government, Ikire & Ors (1993) 1 NWLR (Pt 270) 462, Genver Vs Chima (1993) 9 NWLR (Pt 315) 97, Modile Vs Governor, Lagos State (2004) 12 NWLR (Pt 887) 354, Ideozu Vs Ochoma (2006) 4 NWLR (Pt 970) 364, Nwannewuihe Vs Nwannewuihe (2007) 16 NWLR (Pt 1059) 1, Stallion (Nig) Ltd Vs Economic & Financial Crimes Commission (2008) 7 NWLR (Pt 1087) 461.
When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the claimant’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. It is to mitigate the risk of injustice to the claimant during the period the uncertainty could be resolved that the practice arose of granting relief by way of interlocutory injunction. The object of interlocutory injunction is to protect the claimant against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial – Ekwomchi Vs Ukwu (2002) 1 NWLR (Pt 749) 590, Ogunsola Vs Usman (2002) 14 NWLR (Pt 788) 636, Adamu Vs Attorney General, Nasarawa State (2007) 6 NWLR (Pt 1031) 485, Christlieb Plc Vs Majekodunmi (2008) 16 NWLR (Pt 1113) 324, Yusuff Vs International Institute of Tropical Agriculture (2009) 5 NWLR (Pt 1133) 18.
The most important factors that Courts take into consideration in the grant of an interlocutory injunction are:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> </br<>
i. There must be an existing legal right. This is a sine qua non for the grant of an interlocutory injunction because the aim of every applicant from the onset is to protect his legal right in the res. This includes an equitable interest because such an interest is recognized in law as being worthy of protection and it thus qualifies as a legal right. Therefore the law requires that the applicant must show from the initial stage of proceedings that he has a known right in law or equity to protect – Obeya Memorial Specialist Hospital Vs A.G. of the Federation & Anor. (1987) 3 NWLR (Pt. 60) 325, Commissioner for Works, Benue State Vs Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt. 83) 407, Cobham Vs Duke (2004) 2 NWLR (Pt 856) 150, Farajoye Vs Hassan (2006) 16 NWLR (Pt 1006) 463, Shuaibu Vs Muazu (2007) 7 NWLR (Pt 1033) 271, Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553. This does not, however, mean that the applicant should prove ownership of the property at this stage; it is sufficient for him to show that he claims a legal right over the property on which he seeks the order of injunction – Lawal Vs Adeleke (2004) 13 NWLR (Pt 891) 476.
ii. The legal right must be threatened or abused. This may arise by way of a threat to or the brutalization of the res which may result in damage. The applicant need not show that the res was physically attacked or assaulted. A threatened trespass, for instance in the case of land, is enough to sustain an application – Adewale Vs Governor of Ekiti State (2007) 2 NWLR (Pt 1019) 634, Yusuff Vs International Institute of Tropical Agriculture (2009) 5 NWLR (Pt 1133) 18. Once the application shows an actionable wrong against the res, an order of interlocutory injunction should follow. Otherwise no. In Adeniji & anor Vs Akintaro & ors (1991) 8 NWLR (Pt. 208) 209, the Court of Appeal held that where a claimant is unable to show an actionable wrong or an infringement of a legally enforceable right, the fact that the act of the defendant is injurious to him is not sufficient for the grant of an injunction.
iii. The act to which the injunction is being sought has not been carried out. The purpose of an interlocutory injunction is to preserve the res. Therefore, if the res is destroyed or no longer in existence at the time the application is made, the trial Court will be in a helpless situation. An interlocutory injunction is not a remedy for an act which has already been carried out –John Holt Nigeria Limited Vs Holts African Workers Union of Nigeria & Cameroons (1963) 2 SCNLR 383; Attorney General, Abia State Vs Attorney General, Federation (2006) 16 NWLR (Pt 1005) 265, Gadi Vs Made (2010) 7 NWLR (Pt 1193) 225, Michika Vs Katsina State House of Assembly (2011) 3 NWLR (Pt 1233) 15. However, where the act is a continuous one as in the case of a continuous trespass, an injunction will be appropriate – Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553.
iv. There must be a serious issue to be tried. A serious issue or question is a substantial issue. It is an important issue; not a frivolous or vexatious issue, or one that deals with the periphery of a matter. As a matter of law, the Courts use the expressions “serious issue” and substantial issue interchangeably –Oduntan Vs General Oil Ltd. (1995) 4 NWLR (Pt. 387) 1; Globe Fishing Ind. Ltd. Vs Coker (1990) 7 NWLR (Pt. 162) 265, Adamu Vs Attorney General, Nasarawa State (2007) 6 NWLR (Pt 1031) 485, Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356.
v. The balance of convenience is another principle that a trial judge must take into consideration – Nwangana & Ors. Vs Military Governor of Imo State & Anor (1987) 3 NWLR (Pt. 59) 185, Adewale Vs Governor of Ekiti State (2007) 2 NWLR (Pt 1018) 634, Colito (Nig) Ltd Vs Daibu (2010) 2 NWLR (Pt 1178) 213. In Abdullah Vs Military Governor of Lagos State (1989) 1 NWLR (Pt 97) 356, the Court of Appeal held that one of the cardinal principles of the law governing the grant or refusal of an order of interlocutory injunction is that the claimant’s need for protection must be weighed against a corresponding need of the defendant to be protected against injury he may suffer should the application for injunction be granted.
In the determination of this principle the Court should pose two related questions: (a) who will suffer more inconvenience if the application is granted? (b) who will suffer less inconvenience if the application is granted? The judge, in providing answers to the questions, will allow himself to be guided by the facts before him. In the determination of this factor, our adjectival law requires some measurement of the scale of justice to see where the pendulum tilts. There should be enough evidence that the applicant will suffer more inconvenience if the application is refused; this fact must be clearly set out in the affidavit – African Continental Bank Ltd Vs Awogboro (1991) 2 NWLR (Pt. 176) 711, Gever Vs China (1993) 9 NWLR (Pt 315) 97, Sulu-Gambari Vs Bukola (2004) 1 NWLR (Pt 853) 122, Shuaibu Vs Muazu (2007) 7 NWLR (Pt 1033) 271.
In the present case, it is not in dispute that the Respondents, along with the Appellant, are children, sons, of the late Chief Godfrey Chimah Ubah and that the property in dispute, No 101, Church Road, Sabon Gari, Kano, belonged to the deceased. The parties are Ibos and under the Ibo Native law and custom, the Respondents are entitled to inherit their late father properties. The Respondents thus have a legal right in the property in dispute. It is also not in dispute that the Appellant has solely applied for and obtained the Letters of Administration of the Estate of their late father, without the knowledge of the Respondents, and has issued quit notices to the first Respondent who has resided in the property since 2006 and to the other tenants in the property. The Respondents alleged that the Appellant was taking steps to sell the property upon the eviction of the first Respondent and the tenants in the property. These facts and allegation showed a threat to the legal right of the Respondents to the property.
It is obvious from the facts of the case that the acts sought to be restrained have not been carried out. The assertion of the Respondents in the substantive suit is that the Appellant has no right to solely apply for and obtain the Letters of Administration of the Estate of their late father without their knowledge and consent, while the Appellant contends in response that he has such a right as he was the person solely appointed by their deceased father in his lifetime and given the authority to manage his properties. The Respondents also contend that the Native Will of their late father relied upon by the Appellant is a forgery, while the Appellant asserts otherwise. The questions of whether the authority given by the deceased to the Appellant to manage his properties in his lifetime will continue to hold true and effective after his death and whether or not the Native Will is a forgery are serious issues for trial in the circumstances of this case.
The Appellant did not deny taking steps to evict the first Respondent who had resided in the property in dispute since 2006 and his case was that the first Respondent forced himself into the property and had failed to pay rents for his residence therein. The Appellant counterclaimed for the annual rents due from the first Respondent for the period of his occupation of the property until vacation thereof. Thus, the Appellant loses nothing by the continued stay of the first Respondent in the property until the end of the substantive case as the first Respondent would be obligated to pay the rents for the period should the lower Court find in favour of the Appellant. Further, the Appellant deposed that he has no intention of selling the property and as such an order restraining him from selling the property until the end of the substantive case does not affect him any which way. From the facts, the balance of convenience on the application for injunction was in favour of the Respondents.
The facts deposed to by the parties on the application for the injunction clearly support the discretion exercised by the lower Court in making the restraining order against the Appellant. The second issue for determination is resolved against the Appellant.
This appeal is completely unnecessary and it is obvious that it was propelled either by the ego of the Appellant or by the misguidance of the Appellant by his Counsel. The time spent in prosecuting this appeal, March 2017 to October 2020, is more than sufficient time for the lower Court to have heard and disposed of the substantive suit. An interlocutory appeal is an aberration in the process of judicial adjudication; it is abnormal. It convolutes, confuses and corrodes the efficiency and effectiveness of the justice delivery system. Therefore, it is a procedure that should only be embarked upon in respect of questions that are fundamental to and which are at the core of the resolution of the substantive dispute submitted to Court for adjudication, not those that deal with peripheral matters or those that can be taken along with the substantive suit. It should not be used flippantly or to satisfy the ego, whims and caprices or greed of an appellant or of his Counsel. The Courts, including the Supreme Court, have lamented over the years on the abuse of the interlocutory appeal procedure. The lamentations have yielded no result and interlocutory appeals have become an unbearable burden on the justice system. Something has to be done, practical steps must be taken by the Courts, and soon and very soon, to curtail the use of interlocutory appeal procedure. The Court is the epicenter of the justice system and it has an obligation to prevent the system from collapse, even where the other stakeholders are foot dragging.
In conclusion, this appeal fails and it is hereby dismissed. The decision contained in the Ruling of the High Court of Kano State in Suit No K/376/2016 delivered by Honorable Justice Usman Mallam Na’Abba on the 1st of March, 2017 is affirmed. The Respondents are awarded the costs of this frivolous appeal assessed at N100,000.00. The lower Court is directed to grant the substantive suit an accelerated hearing. These shall be the orders of this Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the leading Judgment of my learned brother Abiru JCA just delivered. It is as unfortunate as it is scandalous, that this Interlocutory appeal was instituted, lasting over three years, without the substantive case, that would determine the rights of the parties, being decided. I agree with the reasoning and conclusion in the lead Judgment that this frivolous appeal has no merit. I also dismiss it and I abide by the order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in agreement with his reasoning and conclusion that the appeal is devoid of any merit. I abide his conclusion dismissing the appeal and the consequential order therein. I have nothing to add.
Appearances:
Chief J. O. Onyewueke For Appellant(s)
A. B. Kura For Respondent(s)