UNIVERSITY OF JOS v. EMMANUEL N. YEMTET
(2016)LCN/8462(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of April, 2016
CA/J/27M/2015
RATIO
WORDS AND PHRASES: MEANING OF JUDICIAL DISCRETION
In Black’s Law Dictionary, 9th edition, page 467 “judicial discretion” is: “1. A judicial or agency determination after consideration of the facts and the law; especially, a ruling, order, or judgment pronounced by a Court when considering or disposing of a case.” PER JOSEPH TINE TUR, J.C.A.
WORDS AND PHRASES: MEANING OF PRIMA FACIE
The phrase “prima facie” means, “At first sight; on first appearance but subject to further evidence or information…” See Black’s Law Dictionary (supra) page 1310.
In Aduke vs Aiyelabola (1942) 8 WACA 43 the West African Court of Appeal defined at page 45 the circumstances when a “prima facie case” may be said to have been established as follows:-
“In the present case the plaintiffs did not establish that they had no case. On the contrary they established a prima facie case on evidence which the trial Judge, for reasons he gave, considered “most unsatisfactory”, It not infrequently happens that although the plaintiffs evidence discloses a very weak case yet when all the evidence is heard that case is converted into a very strong case, e.g. when the defendant and his witnesses go into the witness box and are cross-examined.
Whilst we agree that the plaintiffs had to prove affirmatively that Barikisu and Kadiri were full brother and sister we are of the opinion that, plaintiffs having led evidence that such was the fact and so established a prima facie case, the trial Judge was not justified in stopping the case before all the evidence was before him merely because the evidence for the plaintiff was most unsatisfactory.” PER JOSEPH TINE TUR, J.C.A.
ACTION: REQUIREMENTS FOR A PRIMA FACIE CASE TO BE ESTABLISHED
Evidence, oral or documentary exhibits have to be led by an applicant before it may be said that a
“prima facie case” has been established on a fact or relevant facts in issue. Again in Johnson vs. Maja (1951) 13 WACA 290, Lewey J.A. held at page 292 as follows:-
“The rule enunciated by Parke, B., that in every case the onus lies on the propounders of a will to satisfy the Court that the instrument is “the last will of a free and capable testator”, must, however, be taken, I think, to refer only to the first stage, so to speak, of the onus; for the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the Court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth. That, it is clear to me, must be their responsibility and nothing can relieve them of it; it is not only a rule of common sense but a rule of law, as appears from numerous authorities.”
See also Aromire vs Awoyemi (1972) 1 All NLR (pt 1) 101 at 112 and Duru vs Nwosu (1989) 7 SCNJ 154.
Whenever the expression “prima facie case”, etc appears in a statute or rules of the Court, oral or documentary evidence is to be put forward in support of the application. I shall also refer to Words and Phrases Legally Defined, Vol. 5 (S-Z) page 141 which states that:
“New Zealand: [Section 6 of the Mental Health Amendment Act, 1935 (N.Z.), provides that leave of Judge shall not be given to bring certain proceedings, civil or criminal, unless the Judge is satisfied that there is “substantial ground” for the contention that the person sought to be proceeded against had acted in bad faith or without reasonable care]. “It was not, after all, for the appellant to prove good faith: the onus was upon the respondent to show that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable cause. To my mind, substantial ground cannot be said to be shown unless it appears that the material relied on is such as to afford a reasonable prospect of success at a trial.” Angland vs. Payne, (1944) N.Z.L.R. 610, C.A., per Myers, C.J., at page 625; also reported (1944) G.L.R 266, 269.” PER JOSEPH TINE TUR, J.C.A.
APPEAL: WHAT IS THE DUTY OF AN APPLICANT SEEKING EXTENSION OF TIME TO APPEAL
The onus is on the applicant seeking extension of time to appeal to show that upon a reading of the decision of the Lower Court and the grounds contained in the Notice of Appeal, a reasonable prospect of success of the appeal to be heard out of the time is established. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF JOS – Appellant(s)
AND
EMMANUEL N. YEMTET – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): I have tagged this determination of the issues in controversy as ?decision? by virtue of Section 294(1)-(4) read together with Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. The provisions state as follows:-
?294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
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3. A decision of a Court consisting of more than one judge shall be determined by the opinion of the majority of its members.
4. For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal or the National Industrial Court, shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.”
Section 318(1) of the Constitution supra defines a “decision” to mean “in the relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” The word “Ruling” is omitted in the definition of “decision” in Section 318(1) of the Constitution (supra). The express mention of a word or a term in a Constitution, legislation, law or rule automatically excludes what is omitted. In Udoh vs Orthopaedic Hospitals Management Board (1993) 7 SCNJ (pt 2) 436 Karibi-Whyte JSC held at page 443 as follows:-
“It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not
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named are not intended to be included. Expressio unius est exclusio alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue- See Ogbunyinya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.”
See also Military Governor of Ondo State vs Adewunmi (1988) 3 NWLR (pt 8) 280.
Every Court is bound by the express intention of the framers of the Constitution, a statute or rule. See Osho vs. Phillips (1972) 4 S.C. 259 at 268; Odutola Holdings Ltd vs Ladejobi (2006) 12 NWLR (Pt.994) 321.
In Maxwell On the Interpretation of Statutes, 12th edition, appears at pages 1-2 the following passage:-
“Granted that a document which presented to it as a statute is an authentic expression of the legislative will, the function of a Court is to interpret that document “according to the intent of them that made it.” From that function the Court may not resile: however ambiguous or difficult of
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application the words of an Act of Parliament may be, the Court is bound to endeavour to place same meaning upon them. In so doing it gives effect, as the judges have repeatedly declared, to the intention of Parliament, but it may only elicit that intention from the actual words of the statute. “If”, said Lord Greene M. R., “there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used.” If language is clear and explicit, the Court must give effect to it, “for in that case the words of the statute speak the intention of the Legislature.” And in so doing it must bear in mind that its function is jus dicere, not jus dere: the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of Parliament.”
In Packer vs. Packer (1953) 2 All E.R. 127 Denning, L.J., held at page 129 that:
“I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and
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good sense go hand in hand with the strict construction.”
Morris, L.J., held at page 132 of the judgment thus:
“If the wording of Section 26(1) is clear then, of course, full effect must be given to it, but it is not without some significance that in a situation which could so very often have arisen since 1857 there is no trace until comparatively recently of the point having been taken that on a dissolution of marriage there may be orders for maintenance and custody of illegitimate children if the parties assert and admit that the children are in fact theirs. If the provisions of the Legitimacy Act, 1926, apply, then the effect on an illegitimate person is to “render” him or her legitimate. In such a case the legitimated person can be covered by the word “children” in Section 26(1) of the Matrimonial Causes Act, 1950: See C. vs. C. (1947) 2 All E.R. 50. It may well be that it would on occasion be very convenient if on a decree of divorce the Court could make orders as to the custody, maintenance and education of those acknowledged by the parties to be their illegitimate children. But considerations of convenience
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are for the legislature. The question for the Court is one of the constructions of the Act…”
The provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended have binding force on all authorities and persons throughout the Federal Republic of Nigeria and if any other law is inconsistent the constitutional provisions shall prevail, and that other law, to the extent of the inconsistency shall be void. See Section 1(1) and (3) of the Constitution (supra). In view of the provisions of the Constitution I have alluded to a change in the tagging of the determination of controversies or disputes in the Supreme Court and the Court of Appeal is an absolute necessity to tally with what obtains in other parts of the judiciaries of the world. For in Packer vs. Packer (supra) Denning, L.J., held at page 129 as follows:
“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on,
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and that will be bad for both.”
And in Davies vs. Powell (1737), Willes, 46, Willes, C.J., held at page 51 that: “When the nature of things changes, the rules of law must change too.” In agreeing with the above dicta R.W.M. Diaz held in Jurisprudence, 4th edition, page 197 as follows: “This is a truism in that the legislature and, within limits, the Courts should change rules to keep abreast of change.”
The Courts may depart from her traditional ways and manners of doing things, if it finds that that is not the current position of the Constitution, the statutes or rules of the Court. See in Re Sarah Adaderoh (1951) 13 WACA 304 at 310 and Johnson vs. Lawanson (1971) NMLR 380.
I shall now consider this application on the merit.
The applicant filed this application on 20th April, 2015 seeking leave to appeal against the decision of the National Industrial Court, Jos, Plateau State delivered more than a year ago on 18th April, 2014. The application is supported by an affidavit sworn by Emmanuel Jwander, Esq, Legal Officer in the office of the Registrar of the applicant on 16th March, 2015. Upon service the
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respondent filed a counter affidavit on 14th April, 2015. The applicant responded with a Further And Better Affidavit sworn on 28th September, 2015. The Court directed, and the learned Counsel to the applicant filed a written address on 12th October, 2015. The respondent’s written address was filed on 29th October, 2015. Counsel adopted the written addresses on 17th February, 2016.
I have read the arguments of Counsel. The applicant predicates this application on the following grounds:
“1. The Appellant/Applicant ordinarily has a period of three months within which to file an Appeal against the Judgment of the National Industrial Court, Jos Judicial Division, Jos delivered on November 18th, 2014 by Honourable Justice R.H. GWANDU in Suit No. NICN/JOS/53/2013.
2. The Appellant/Applicant is already out of time in filing an Appeal against the Judgment of the National Industrial Court, Jos Judicial Division, Jos delivered on November 18th, 2014 by Honourable Justice R.H. GWANDU in Suit No. NICN/JOS/53/2013.
3. Besides, the Appellant/Applicant cannot appeal as of right against the Judgment of the National Industrial Court, Jos
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Honourable Justice R.H. GWANDU in Suit No. NICN/JOS/53/2013.
4. The Appellant/Applicant requires the leave of this Honourable Court to file an appeal against the Judgment of the National Industrial Court, Jos Judicial Division, Jos delivered on November 18th, 2014 by Honourable Justice R. H. GWANDU in Suit No. NICN/JOS/53/2013.
5. The failure of the Appellant/Applicant to apply to seek leave within three months of the delivery of Judgment of the National Industrial Court, Jos Judicial Division, Jos on 18th November, 2014 is principally due to change of Counsel and complications arising there from.?
The supporting affidavit is as follows:-
?1. That I am a Legal Officer in the Officer of Registrar of the Appellant/Applicant and by virtue of my position, I am conversant with the facts deposed to hereunder.
2. That I have the consent and the authority of the Appellant/Applicant to depose to this Affidavit.
3. That I know as a fact that the Respondent was a staff of the Appellant/Applicant and in the course of his employment, the Respondent was posted to Centre for Continuing Education as the Finance Officer of the
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Centre.
4. That I know as a fact that the Appellant/Applicant had engaged the services of Messrs. Nat Kolo Nmadu & Co., to audit the Account of the Centre for Continuing Education for each of the two years covering July 1, 1999 to June 30, 2000 and July 1, 2000 to June 30, 2001 which happened to be the period the Respondent was the Finance Officer of the said Centre for Continuing Education.
5. That I know as a fact that the Audit Report of the said Firm of Messrs, Nat Kolo Nmadu & CO., indicted the Respondent as a result of short falls in the management of the account at the Centre of Continuing Education, University of Jos.
6. That I know as a fact that the Respondent was placed on suspension from duty vide a letter dated November, 28, 2005 as a result of financial impropriety arising from the said Audit Report. A copy of the said said letter of suspension is attached and marked as Exhibit ?APP1?.
7. That I know as a fact that the Respondent was given adequate opportunity to explain himself in respect of the Audit Report in question.
8. That I know as a fact that both the Management and Council of the
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Appellant/Applicant were not satisfied with the explanation of the Respondent.
9. That I know as a fact that the appointment of the Respondent was eventually terminated at the instance of Council of the Appellant/Applicant on July 7, 2006 for services no longer required. A copy of the said letter terminating the appointment of Respondent is attached and marked as Exhibit ?APP2?.
10. That I know as a fact the Respondent originally challenged the termination of his appointment at the Federal High Court, Jos, vide Suit No. FHC/J/CS/48/06 against the Appellant/Applicant.
11. That I know as a fact that the said suit was subsequently transferred to the National Industrial Court, Jos Judicial Division, Jos and given Suit No. NICN/JOS/153/2013.
12. That I know as a fact that the Appellant/Applicant Counter-Claimed against the Respondent before the Lower Court for the sum of N6,095,851.00 (Six Million, And Ninety-Five Thousand, Eighty Hundred and Fifty-One Nara) only being money not accounted for by the Respondent in breach of his duty of care to the Appellant/Applicant, while on posting to the Centre for Continuing Education as Finance
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Officer.
13. That I know as a fact that the Respondent did not file any defence to the Counter-Claim to the Appellant/Applicant before the Lower Court.
14. That I know as a fact that in the judgment delivered by the Lower Court on 18th November, 2014, the learned trial Judge invalidated the termination of appointment of the Respondent and also dismissed the Counter-Claim of the Appellant/Applicant notwithstanding the fact that the Respondent did not file a defence thereto. A copy of the Certified True Copy of the said Judgment is attached and marked as Exhibit ?APP3?
15. That I know as a fact that throughout the Lower Court, the Appellant/Applicant was represented by the firm of DANJUMA D. RIMDAN & CO.
16. That I know as a fact that the Appellant/Applicant was not promptly informed by the firm of DANJUMA D. RIMDAN & CO. on the outcome of this case before the Lower Court.
17. That I know as a fact that at the time the photocopy of the Judgment of the Lower Court was forwarded to the Appellant/Applicant by the firm of DANJUMA D. RIMDAN & CO, the period of three months within which to file an appeal against the
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said Judgment had almost expired.
18. That I know as a fact that after seeing and reading the copy of the Judgment of the Lower Court, the Management of the Appellant/Applicant took a decision to challenge it by way of appeal having been dissatisfied with the outcome of the case before the Lower Court.
19. That I know as a fact that the management of the University decided to engage the services of the firm of AKUBO & CO., to pursue the matter on appeal.
20. That in pursuance of Paragraph 18 above, the Appellant/Applicant wrote a letter to the firm of AKUBO & CO., with instruction to take up the matter on appeal.
21. That upon being instructed to take over the matter on appeal, the firm of AKUBO & CO., requested for the case file of the matter before the Lower Court for necessary action.
22. That pursuant to Paragraphs 19 and 21 above, I went to the firm of DANJUMA D RIMDAN & CO. at the instance of Management of the Appellant/Applicant in order to retrieve the case file in this case.
23. That unfortunately, the firm of DANJUMA D. RUMDAN & CO. was unwilling to release the case file to the Appellant/Applicant
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thereby resulting in an impasse between the Appellant/Applicant and the said firm.
24. That I know as a fact that the imposes between the Appellant/Applicant and the firm of DAMJUMA D. RIMDAN & CO. on the release or retrieval of the case file before the Lower Court occasioned unexpected delay in pursuing this matter on appeal.
25. That despite sustained entreaties on the firm of DANJUMA D. RIMDAN & CO. to release the case file to the Appellant/Applicant, the said firm will not budge.
26. That as a last resort, the Appellant/Applicant had to approach the Registry of the Lower Court and thereupon applied to photocopy the Court Processes filed and exchanged in the case so as to forward same to the firm of AKUBO & CO. for action.
27. That I know as a fact that at the National Industrial Court, Jos Judicial Division, Jos, the Appellant/Applicant encountered much difficulty in procuring copies of documents filed and exchanged before Lower Court.
28. That I know as a fact that at the time the Appellant/Applicant succeeded in procuring copies of documents filed and exchanged before Lower Court on or about 23rd February, 2015, the
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three months within which to file an appeal against the Judgment of the Lower Court had expired.
29. That I am informed by S. Y. Tsok, Esq, of Counsel on Wednesday, 25th day of February, 2015 at about 1:00pm in their office at ENENEZER PLAZA, No. 4 Apollo Crescent, and I verily believe him to be true as follows:
a. That the Appellant/Applicant cannot appeal as of right against the Judgment of the National Industrial Court to this Honourable Court as in this case.
b. That prior LEAVE of this Honourable Court is required to file an appeal out of time and particularly against the Judgment of the Lower Court more so that the Appellant/Applicant does not have automatic right of appeal in this case.
c. That he needed to sufficiently acquaint himself with the Court processes filed and exchanged before the lower Court vis–vis the Judgment of that Court so as to enable him prepare befitting Proposed Notice and Grounds of appeal.
d. That not being a Counsel in the Lower Court in this case, he needed to have the full benefit of the court processes filed and exchanged before he Lower Court.
30. That I know as a fact that the delay in
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filing this application is due to circumstances beyond the control of the Appellant/Applicant, particularly the non release of the case file to the Appellant/Applicant by the firm of DANJUMA D. RIMDAN & CO.
31. That the Proposed Notice and Grounds of Appeal have now been prepared by the firm of AKUBO & CO. The copy of same is attached hereto and marked as Exhibit ?APP4?.
32. That the Proposed Notice of Appeal in this case contains substantial Grounds of Appeal.
33. That the Appellant/Applicant is committed to the diligent prosecution of the Appeal once LEAVE is granted by this Honourable Court.
34. That it will be in the interest of justice to grant this application.
35. That I depose to this Affidavit in good faith verily believing its contents to be true, to the best of my knowledge, information and belief and in accordance with the provisions of the Oaths Act, 2004.?
The respondent swore a Counter-Affidavit on 14th September, 2015 to wit:
?1. That I am the respondent in this case by virtue of which position I am very conversant and familiar with the facts of this case.
2. That the
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National Industrial Court, Jos entered judgment in this case on 18th November, 2014 against the applicant and ordered that my salaries entitlements and benefits withheld be computed and paid to me and further that the applicant is restrained from preventing and disturbing me from carrying out my duties and responsibilities as an employee of the University of Jos or tampering with the rights and privileges incidental to my appointment.
3. That the applicant failed to comply with the terms of the judgment of the National Industrial Court.
4. That the applicant was aware of the judgment and was represented throughout the proceedings.
5. That the applicant was served with a copy of the judgment and by a letter dated 26th January, 2015, my lawyers requested the applicant to comply with the terms of the judgment. Annexed hereto as Exhibit ?A? is a copy of the said letter.
6. That based on the failure of the applicant to comply with the terms of the judgment in this case, a judgment summons has been issued and served on the respondent/applicant and same is pending for hearing before the National Industrial Court. Annexed hereto as
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Exhibit ?B? is a copy of the judgment summons.
7. That I know as a fact that the applicant did not file any appeal against the judgment in this case despite the fact that the applicant was aware of the judgment.
8. That the applicant did not encounter any difficulty in procuring any document from the Registry of the National Industrial Court as documents are made available to parties on application.
9. That this application is an afterthought by the applicant and it is brought to deny me from reaping the fruit of my judgment in the National Industrial Court.
10. That the applicant has filed application for stay of execution of the judgment before the National Industrial Court using this application as a basis. Annexed hereto as Exhibit ?C? is a copy of the said application which is still pending before the National Industrial Court.
11. That the application has no reason for not filing an appeal against the judgment within the prescribed time.
12. That I am informed by my solicitor, I.E. Asogwa, Esq. in his office at No.14 Tafawa Balewa Street, Jos on 10th September, 2015 by 10:00am whom I verily believe
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as follows:
(a) That the period within to appeal against the judgment in this case has lapsed.
(b) That the purported proposed grounds of appeal attached to this motion as Exhibit ?B? does not contain arguable and substantial grounds of appeal.
(c) That the applicant did not disclose any cogent reason why he did not file an appeal within the prescribed period of time.
13. That it will be in the interest of justice to dismiss this application.
14. That I make this oath in good faith believing all its contents to be true to the best of my knowledge, information and belief and in accordance with the Oath Act.?
The Further And Better Affidavit sworn on 28th September, 2015 by Blessing Ikwuene Patrice-Ahom, Esq. of Akubo & Co. Solicitors to the applicant is as follows:
?1. That I am a counsel in the firm of AKUBO & CO, Solicitors to the Appellant/Applicant and by virtue of my position I am conversant with the facts deposed to hereunder.
2. That I have the consent and the authority of the Appellant/Applicant to depose to this Further and Better Affidavit.
3. That I have seen and read the
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Counter Affidavit filed by the Respondent on 14th September, 2015.
4. That I know as a fact that Paragraphs 3, 7, 8, 9, 11, 12 (b) and (c ) are not true.
5. That I know as a fact that Appellant/Applicants were represented by the firm of DANJUMA D. RIMDAN & CO at the trial Court.
6. That I know as a fact that by the time a copy of the judgment of the trial Court was forwarded to the Appellant/Applicant by the firm of DANJUMA D. RIMDAN & CO, the three months within which to appeal had almost expired.
7. That the management of the Appellant/Applicant after going through the judgment engaged the services of AKUBO & CO to file an Appeal in this matter and pursue it.
8. That it was pursuant to this that the firm of AKUBO & CO requested the case file of the mater for necessary action. However the firm of DANJUMA D. RIMDAN did not release the case file of the Appellant/Applicant on time.
9. That I know as a fact that as a last resort, the Appellant/Applicant had to approach the registry of the trial Court to apply for photocopies of all the Court processes filed and exchanged between the parties in this case which
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application was granted and the documents were received on or about 23rd February, 2015 but by then the three months within which to appeal has lapsed.
10. That I know as a fact that the delay in filling this application is not intentional but due to circumstances beyond the control of the Appellant/Applicant particularly as it relates to the procurement of the case file from the law firm of DANJUMA D. RIMDAN & CO.
11. That I know as a fact that this application was filed on 16th March, 2015 and all attempts to serve the Respondent with the application proved abortive as the Respondent repeatedly kept evading service of the process on him.
12. That I know as a fact that the bailiff of this Honourable Court tried serving the Respondent about three or four separate occasions all to no avail.
13. That I know as a fact that the bailiff even got the Respondents Phone number and talked with him on phone but when the time came to meet at the arranged location, the Respondent still evaded service.
14. That it was during this time which the Respondent was evading service that he went to the trial Court to obtain a Judgment summons on the
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14th day of May, 2015 despite having been communicated about the pending application by the Appellant/Applicant before this Honourable Court.
15. That I know as a fact that because of the reasons stated in Paragraph 11, 12, 13 and 14 above that the Appellant/Applicant filed a Motion Ex-parte on the 15th day f June, 2015 seeking for an order for substituted service by pasting at the application at the last known address of the Respondent which motion was granted on the 16th day of June, 2015. A copy of the fact of the said Motion Ex-parte is attached and marked as Exhibit APP5.
16. That I know as a fact that Application for LEAVE to appeal is an appeal in itself.
17. That I know as a fact that the Appellant/Applicant is committed to the diligent prosecution of the Appeal once LEAVE is granted by this Honourable Court.
18. That I know as a fact that the proposed Notice of Appeal attached to the main application as Exhibit “PAA4″ discloses arguable and substantial grounds of appeal.
19. That it will be in the interest of justice to grant this application.
20. That I depose to this Further and Better
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Affidavit in good faith verily believing its contents to be true to the best of my knowledge, information and belief and in accordance with the Oath Act. 2004.”
The applicant has blamed her failure to appeal within time on the attitude of the Chambers of Danjuma Rimdam & Co. But there is no affidavit from any Counsel in that Chambers accepting their blame-worthiness in that regard contrary to the Supreme Court decisions Ojora vs. Bakare (1976) 6 SC 47 at 51-53 and J.I.C. Co. vs. R.L. Import-Export (1988) 7 SCNJ 93 at 108. Besides, the failure to obtain records is no good reason for extending time for an applicant to appeal against the decision of a trial Court to the Court of Appeal. The applicant could have filed the Notice of Appeal with the omnibus ground within time while awaiting the outcome of whatever difficulty she had with the chambers of Rimdam & Co. See Saffeidine vs. Commissioner of Police (1965) NMLR 116; Jiborku vs. Rex (1968) 1 All NLR 343; Okoye vs. Commissioner of Police (1959) NRNLR 93; Esoh vs. I.G.P. (1958) 3 FSC 37 and Nneji vs. Chukwu (1988) 6 SCNJ 132.
The relevant provision to be construed in the determination of
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this application is Section 24(1) to (4) of the Court of Appeal Act 2004 which co-exists before an application of this nature is granted. The provision reads as follows:
?24(1) Where a person desires to appeal to the Court of Appeal, he shall file notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the
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determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.?
The provision of Section 24(1)-(4) of the Act supra applies to where a person desires to appeal or is seeking leave to appeal to the Court of Appeal. The period prescribed in the case of a final decision is three months, 14 days are prescribed in an interlocutory decision. By the way the expression ?interlocutory decision? is not defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended or in the Interpretation Act Cap.123, Laws of the Federation of Nigeria, 2004. In a criminal cause or matter, the appellant has ninety days. Section 24(3) of the Act (supra) is therefore very important and must be complied with by an applicant.
?Where an application is for extension of time to appeal to the Court of Appeal, the applicant must first seek leave of the Court below and if leave is not granted, the applicant has to renew the application in the Court of Appeal within 15 days from the date of
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the Lower Court’s refusal. The Court of Appeal will examine the reasons for the refusal and if not cogent or supported by law or legal principles will grant the application. The Court of Appeal may review the reasons of the Lower Court and dismiss the application if it has no merit. Order 7 Rule (7)(a)-(d) and (8) of the Court of Appeal Rules, 2011 which reads as follows:
“(7) The application for leave to appeal from a decision of a Lower Court shall contain copies of the following items, namely:-
(a) Notice of motion for leave to appeal (Form 5);
(b) A certified true copy of the decision of the Court below sought to be appealed against;
(c) A copy of the proeposed grounds of appeal; and
(d) Where leave has been refused by the Lower Court, a copy of the order refusing leave.
(8) Upon the service of any application on the Respondent, he may within seven days file a notice of intention not to contest the application and upon such notice the application may be heard by the Justices in Chambers without oral argument.”
There is nothing to show from the exhibits attached to this application namely Exhibits
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“APP1” to “APP4” nor the affidavits that leave of the Lower Court was first sought but refused before the applicant brought this application to the Court of Appeal. The applicant should have explained why the application was not brought within time in the Lower Court before bringing this application in the Court of Appeal on 20th April, 2015.
What the applicant is seeking is the exercise of a judicial discretion to extend time to appeal against the decision of the learned trial Judge. What does “Judicial discretion” mean in litigation?
In Black’s Law Dictionary, 9th edition, page 467 “judicial discretion” is: “1. A judicial or agency determination after consideration of the facts and the law; especially, a ruling, order, or judgment pronounced by a Court when considering or disposing of a case.”
I shall consider Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 which provides as follows:
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within
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the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
The law giver intends in Order 7 Rule 10(2) of the Rules supra that an applicant seeking leave to appeal must also show in the affidavit “…good and sufficient reasons for failure to appeal within the prescribed period…” The words, “good,” “substantial” and “reason” have not been defined in the Rules (supra). However “good substantial reasons” being English grammatical expressions, I shall resort to the Oxford Advanced Learner’s Dictionary, 8th edition, page 645 where “good” is defined as:
“1. Of high quality or an acceptable standard… 2.pleasant: that you enjoy or want,… 3.sensible, logical or strongly supporting what is being discussed:.. 4. showing or getting approval or respect…5…able to do something will…6…something well.. 7…following strictly a set of rules or
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principles…”
To “substantiate” is defined at page 1490 of the same dictionary as meaning “…to provide information or evidence to prove that something is true…” And “reason” is defined at page 1223 as: “…a cause or an explanation or something that has happened or that somebody has done… 2..a fact that makes it right or fair to do something…”
In Maxwell On the Interpretation of Statutes (supra) page 320 appears the following passage:
“Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the stature, but a duty imposed on a Court or public officer when not general inconvenience or injustice seems to call for different construction.”
The phrase “prima facie” means, “At first sight; on first appearance but subject to further evidence or information…” See Black’s Law Dictionary (supra) page 1310.
?In Aduke vs Aiyelabola (1942) 8 WACA 43 the West African
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Court of Appeal defined at page 45 the circumstances when a “prima facie case” may be said to have been established as follows:-
“In the present case the plaintiffs did not establish that they had no case. On the contrary they established a prima facie case on evidence which the trial Judge, for reasons he gave, considered “most unsatisfactory”, It not infrequently happens that although the plaintiffs evidence discloses a very weak case yet when all the evidence is heard that case is converted into a very strong case, e.g. when the defendant and his witnesses go into the witness box and are cross-examined.
Whilst we agree that the plaintiffs had to prove affirmatively that Barikisu and Kadiri were full brother and sister we are of the opinion that, plaintiffs having led evidence that such was the fact and so established a prima facie case, the trial Judge was not justified in stopping the case before all the evidence was before him merely because the evidence for the plaintiff was most unsatisfactory.”
Evidence, oral or documentary exhibits have to be led by an applicant before it may be said that a
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“prima facie case” has been established on a fact or relevant facts in issue. Again in Johnson vs. Maja (1951) 13 WACA 290, Lewey J.A. held at page 292 as follows:-
“The rule enunciated by Parke, B., that in every case the onus lies on the propounders of a will to satisfy the Court that the instrument is “the last will of a free and capable testator”, must, however, be taken, I think, to refer only to the first stage, so to speak, of the onus; for the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the Court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth. That, it is clear to me, must be their responsibility and nothing can relieve them of it; it
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is not only a rule of common sense but a rule of law, as appears from numerous authorities.”
See also Aromire vs Awoyemi (1972) 1 All NLR (pt 1) 101 at 112 and Duru vs Nwosu (1989) 7 SCNJ 154.
?Whenever the expression “prima facie case”, etc appears in a statute or rules of the Court, oral or documentary evidence is to be put forward in support of the application. I shall also refer to Words and Phrases Legally Defined, Vol. 5 (S-Z) page 141 which states that:
“New Zealand: [Section 6 of the Mental Health Amendment Act, 1935 (N.Z.), provides that leave of Judge shall not be given to bring certain proceedings, civil or criminal, unless the Judge is satisfied that there is “substantial ground” for the contention that the person sought to be proceeded against had acted in bad faith or without reasonable care]. “It was not, after all, for the appellant to prove good faith: the onus was upon the respondent to show that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable cause. To my mind, substantial ground
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cannot be said to be shown unless it appears that the material relied on is such as to afford a reasonable prospect of success at a trial.” Angland vs. Payne, (1944) N.Z.L.R. 610, C.A., per Myers, C.J., at page 625; also reported (1944) G.L.R 266, 269.”
The onus is on the applicant seeking extension of time to appeal to show that upon a reading of the decision of the Lower Court and the grounds contained in the Notice of Appeal, a reasonable prospect of success of the appeal to be heard out of the time is established. The proposed grounds of appeal (Exhibit “APP4”) are couched as follows:
“GROUND ONE:
The learned trial Judge erred in law when he held at page 23, lines 2-8 of the judgment thus: The big challenge here (in my view), is that this counter-claim is speculative. To me, the counter-claim is an item garnished, furnished, clothed and decorated in a semblance of a counter-claim but not real. The claimant was right when he stated that the counter-claim has not ripened into a counter-claim at all. This to my mind is true. There are various elements to justify this and indeed jettison it
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into the heap of speculation.
PARTICULARS OF ERROR:
(a) The appellant counter-claimed against the respondent for the sum of N6,095,851.00 (Six Million, And Ninety-Five Thousand, Eight Hundred and Fifty-One Naira) only being appellants money not accounted for by the respondent.
(b) The appellant supported its counter-claim against the respondent with sufficient evidence.
(c) Specifically, Exhibits “EY1E” and “1H-J” are documentary proof in support of appellants counter-claim.
(d) Besides, Exhibits “EY1E” and 1H-J”, the testimony of RW1, RW2 and RW3 equally supported the counter-claim of the appellant through factual evidence.
(e) In essence, contrary to the conclusion of the learned trial Judge, the counter-claim of the appellant was not in any way speculative but based on actuality.
GROUND TWO:
The learned trial Judge misdirected himself in law vis-a -vis other available evidence when he held at page 23, lines 29-30 of the judgment thus: “Exhibit “1(h) satisfied me that the completeness and accuracy of the
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sum of N6,095,851.00 is speculative.? And thereby occasioned a miscarriage of justice.
PARTICULARS OF MISDIRECTION:
(a) Exhibit 1(h) clearly confirmed the tardiness of the respondent with respect to accounting records.
(b) Apart from Exhibit 1(h) tendered by the appellant, other exhibits eloquently and categorically pointed out the short fall and or unaccounted sum of N6,095,851.00 (Six Million, And Ninety-Five Thousand, Eight Hundred and Fifty-One Naira) only owing to respondent?s malfeasance.
(c) For instance, Exhibits ?EY1E) and ?1H-J? are documentary proof in support of appellant?s counter-claim.
(d) If all the Exhibits tendered by the appellant before the Lower Court where reckoned with cumulatively and holistically, it would have been evident that the sum of N6,095,851.00 (Six Million, And Ninety-Five Thousand, Eight Hundred and Fifty-One Naira) only claimed by the appellant against the respondent vide the counter-claim was factual and not speculative.
GROUND THREE:
The learned trial Judge misdirected himself in law when he held at page 24, lines
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23-25 of the judgment thus: ?Form (sic) Exhibit ?EY1(o), the proposed directive on deduction was never carried out nor any terminal benefits paid, thus, leaving this counter-claim imaginary.? And thereby occasioned a miscarriage of justice.
PARTICULARS OF MISDIRECTION:
(a) The directive on the deduction from the terminal benefits of the respondent is a ringing confirmation that the counter-claim of the appellant against the respondent was not speculative or imaginary but based on factual findings of fact.
(b) Surprisingly, the learned trial Judge mistook the non-execution of the directive to have rendered the counter-claim as imaginary.
(c) The non-execution of the directive on deduction from the terminal benefits of the respondent cannot be by any straight imagination render the counter-claim imaginary.
GROUND FOUR:
The learned trial Judge misdirected himself in law in dismissing the Counter-Claim of the appellant on the ground that it was an after-though, speculative and a wild goose chase and thereby occasioned miscarriage of justice.
PARTICULARS OF
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MISDIRECTION:
(a) At page 25, lines 27-29 as well as page 26, lines 1-2 of the judgment, the learned trial Judge held thus: ?As it is, I am of the belief that the counter-claim is an after-thought aimed at degenerating and worsening the claimant?s individuality and therefore cannot be allowed to stand. Having said so, the counter-claim fails and is hereby dismissed for being speculative and a wild goose chase.?
(b) The Counter-Claim of the appellant was well though out on the basis of the available documents which were tendered and admitted in evidence before the Lower Court.
(c) The respondent had no answer to the counter-claim of the appellant having not filed a defence to the counter-claim before the Lower Court.
(d) By reason of default of pleadings and or non filing of defence to Counter-Claim, the appellant was entitled to judgment in respect of the counter-claim.
(e) The appellant led sufficient evidence in support of its counter-claim before the Lower Court. For instance, Exhibit ?EY? dated 2nd January, 2006 duly informed the respondent that the report of the audit conducted with
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respect of his office alleged short fall of N6,095,851.00 (Six Million, And Ninety-Five Thousand, Eight Hundred and Fifty-One Naira) only.
(f) Lamentably, even though the counter-claim of the appellant was not defended by the respondent by way of pleading, the learned trial Judge dismissed the counter-claim of the appellant, albeit, erroneously as an after-thought.
GROUND FIVE:
The learned trial Judge misdirected himself in law when he held at page 28 lines 3-13 of the judgment thus: ?In view of the contentions and submissions of the claimant vis–vis the possible (inherent) retractions of the respondent, it is evident that the respondent has failed, neglected and refused to pay the claimant his three (months? salary in lieu of notice of termination as well as his other entitlements on the pre that it would be subjected to further reconciliation of accounts meeting with the claimant. In line with this thought, it is exceedingly difficult to come to terms with the belief that the respondent has actually terminated the claimant?s appointment. In one arm, it looks that there was a termination if it is
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viewed in relation to the caption of Exhibit ?E-Y1(d) (the letter of termination), but on the decision conveyed in the said Exhibit ?E-Y1(d)?, it rendered the termination (in my view) a nullity.? And thereby occasioned a miscarriage of justice.
PARTICULARS OF MISDIRECTION:
(a) Payment of three (3) months? salary in lieu of notice of termination of appointment of respondent is not a condition precedent for the validity of determination of appointment of the respondent.
(b) Similarly, payment of other entitlements of the respondent is equally not a condition precedent for the validity of determination of appointment of the respondent.
(c) Indeed, it is a gross misconception of labour law to assume or hold that an employee must first of all be paid salary in lieu of notice or paid his entitlement as a precondition for termination of appointment.
(d) Exhibit ?EY1(d)? expressly terminated the appointment of the respondent.
(e) Before Exhibit ?EY1(d)? was issued by the respondent to the appellant, due process was followed.
(f) The indication of need for
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further reconciliation of account as in the letter of termination of appointment of the respondent does not render the termination as a nullity as held by the learned trial Judge.
GROUND SIX:
The learned trial Judge erred in law when he held at page 28, lines 13-21 of the judgment as follows: ?It is disheartening to note that having purportedly terminated the claimant?s appointment the respondent still held on (reneged) and refused to fulfill the terms of termination. This position runs foul of the terms and conditions of service of the respondent, particularly Exhibit ?E-Y1(d)? above. Indeed, I refuse to accept this untoward condition, i.e. the re-routing and changing of the goal post as to the (term and conditions of service) as obviously slated in Paragraph 5 of Exhibit ?EY1(d)? thus: ?Council also decided that the payment of your terminal benefit will await further clarifications relating to Accounts reconciliation at the Centre for Continuing Education.?
PARTICULARS OF ERROR:
(a) Contrary to the holding of the learned trial Judge, there is nothing in the
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terms and conditions of service of the respondent that imposes payment of one month?s salary in lieu of notice and or other entitlements as a condition precedent for valid termination of appointment of the respondent.
(b) The appellant did not in any way breach the Conditions and Terms of Service of the respondent in terminating the later from its employment.
(c) Contrary to the holding of the learned trial Judge, the appellant did not re-rout and or change the goal post with regards to the Terms and Conditions of the Service of the Respondent vide Paragraph 5 of Exhibit ?EY1(d)?.
(d) For the avoidance of doubt, the directive of Council as captured in Paragraph 5 of Exhibit ?EY1(d) to the effect that payment of terminal benefit of the respondent will further await accounts reconciliation did not amount to changing the goal post or running foul of the Terms and Conditions or Service of the respondent.
GROUND SEVEN:
The learned trial Judge erred in law when he held at page 28, lines 28-29 and page 29, lines 1-13 of the judgment as follows: ?In a nut shell, this action shows that this
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University is not done yet with the services of the claimant. Put simply, the purported termination of the appointment of the claimant on the strength of the fact that his ?service are no longer required? is an irony. If the University means business, the reasons I have earlier stated in issue No.1, would equally have found space here. That is to say; that the University would have paid off the unwanted claimant all his entitlements and avoid the continue romance or better still, initiate a criminal investigation against him. Failure in this regard, sends a signal that the claimant is unduly punished for-ever. These must be end to his suffering. From the above, it is my view that the respondent cannot validly terminate the claimant?s appointment without complying with the Regulations Governing the Conditions of Service of Senior Staff (Exhibit ?E-Y16(a). On this, I agree with the claimant completely. Therefore, Exhibit ?E-Y16 (a) Section 25(b) and ?E-Y1 (d) were not strictly followed and as such, the purported termination of the appointment of the claimant is a nullity and therefore void.?
PARTICULARS OF
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ERROR:
(a) The learned trial Judge misdirected the law governing the termination of appointment of the respondent vis–vis the applicable Terms and Conditions of Service and or Regulations governing the Conditions of Service of Senior Staff.
(b) Payment of entitlements of the respondent is not a precondition for terminating the appointment of the respondent.
(c) The appellant fully complied with the Regulations governing the Conditions of Service of Senior Staff in terminating the appointment of the respondent.
(d) Specifically, the appellant strictly followed Exhibit ?E-Y16(a) Section 25(b) and Exhibit ?E-Y1(d)? in the termination of appointment of the respondent contrary to the holding of the learned trial Judge.
GROUND EIGHT:
The learned trial Judge erred in law when he held at pages 32-33 of the judgment that the termination of respondent?s appointment was incompatible with the due exercise of powers and or the due discharge of powers conferred upon the Council under the University of Jos Act and at such the termination of appointment of the respondent was wrongful,
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unlawful, void and of no effect whatsoever.
PARTICULARS OF ERROR:
(a) The University of Jos Act and all other enabling Regulations thereof vest power on the Council of the University to discipline Senior Staff including termination of appointment.
(b) In this case, due process was followed before the appointment of the respondent was terminated.
(c) The termination of the appointment of the respondent was not in any way incompatible with the due exercise of powers and or the due discharge of powers conferred upon the Council under the University of Jos Act.
GROUND NINE:
The learned trial Judge erred in law when he held at page 33, lines 8-10 of the judgment that having failed to pay the respondent?s three months? salary in lieu of notice, the purported termination of appointment of the respondent was invalid, null and void and of no effect whatsoever.
PARTICULARS OF ERROR:
(a) Nowhere is it stated in the Terms and Conditions of Service of the respondent or Regulations governing the Conditions of Service of the Senior Staff of the appellant that the respondent ought to have
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been paid three months? salary in lieu of notice first thing first before the termination of his appointment.
(b) Surely, payment of three (3) months? salary in lieu of notice of termination of appointment of respondent is not a condition precedent for the validity of determination of appointment of the respondent.
(c) Similarly, payment of other entitlements of the respondent is equally not a condition precedent for the validity of determination of appointment of the respondent.
(d) Indeed, it is a gross misconception of labour law to assume or hold that an employee must first of all be paid salary in lieu of notice or paid his entitlement as a precedent for termination of appointment.
GROUND TEN:
The learned trial Judge erred in law in entering judgment for the respondent by granting six (6) different reliefs in his favour notwithstanding the fact that the respondent failed to discharge the requisite burden of proof incumbent upon him and or adduce valid, credible or legally admissible evidence in support of his claim.
PARTICULARS OF ERROR:
(a) The onus of proof is on him who asserts.
(b)
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In this case, the onus of proof was on the respondent who challenged the termination of his appointment.
(c) However, there was no legally cognizable witness statement on oath in support of the amended statement of claim of the respondent dated the 10th day of July, 2007 but filed on the 11th day of July, 2007.
(d) Specifically, the only purported witness statement on oath of the respondent was sworn to before Commissioner for Oath, Federal High Court, Jos on 10th day of February, 2011.
(e) Curiously, the said witness statement on oath of the respondent was not paid for until a year later to wit: 10th February, 2012.
(f) In other words, contrary to the practice of the Court, the only witness statement on oath of the respondent in support of his case was not paid for before it was sworn to but paid for a year after it was sworn to.
GROUND ELEVEN:
The learned trial Judge erred in law by admitting and relying on inadmissible evidence in support of respondent?s case and thereupon entered judgment in favour of the respondent.
PARTICULARS OF ERROR:
(a) The documents pleaded and sought to
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be relied upon by the respondent in support of respondent?s case and thereupon entered judgment in favour of the respondent.
(b) None of the documents tendered by the respondent in support of his case was certified as expected.
(c) Nevertheless, the learned trial Judge admitted and utilized the documents in support of the respondent?s case.
(d) Invariably, the learned trial Judge admitted and utilized inadmissible evidence to enter judgment for the respondent in this case.
RELIEFS SOUGHT FROM THE COURT:
(a) To allow the appeal.
(b) To set aside the judgment of the learned trial Judge delivered on 18th November, 2014.
(c) To dismiss the claim of the respondent as utterly lacking in merits.
(d) To enter judgment in favour of the appellant with respect to the Counter-Claim.?
The applicant has not brought credible or sufficient materials to tilt the mind of this Court to extend time for the applicant to appeal to this Court against the decision of the Lower Court. The application is dismissed with N50,000.00 cost to the respondent.
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ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.:
I have had the opportunity and privilege to read the draft decision of my learned brother, JOSEPH TINE TUR, JCA and I agree entirely with the conclusion clearly reached.
In support, being an application for time to be extended, the applicant as well found, failed to show compliance with the necessary Order in that regard before approaching this Court.
For the fuller reasons given therein, I also dismiss this application.
No order is made as to costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.:
I have had the opportunity of reading in advance the lead decision just delivered by my learned brother, JOSEPH TINE TUR, JCA, and entirely agreed with the reasoning and conclusions therein. I have nothing useful to add and therefore dismissed the application as lacking in merit.
?I also abide by the award of costs of N50,000.00 in favour of the respondent.
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Appearances:
P.A. Akubo, SAN with him, S.Y. Tsok, Esq., Mrs. Noah Jwalshuk, K.A. Dandaso, Esq., A.J. Adudu, Esq. and E.O. Dina, Esq.For Appellant(s)
C.D. Omeke, Esq.For Respondent(s)
Appearances
P.A. Akubo, SAN with him, S.Y. Tsok, Esq., Mrs. Noah Jwalshuk, K.A. Dandaso, Esq., A.J. Adudu, Esq. and E.O. Dina, Esq.For Appellant
AND
C.D. Omeke, Esq.For Respondent
