THE ESTATE OF EZEKIEL & ANOR v INTEGRATED CAPITAL SERVICES LTD.

THE ESTATE OF EZEKIEL & ANOR v INTEGRATED CAPITAL SERVICES LTD.


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 25TH MAY, 2018


Appeal No: CA/L/800M/2014
CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
JAMILU YAMMAMA TUKUR, JCA


BETWEEN

THE ESTATE OF EZEKIEL

ABIODUN LADIPO

(SUING THROUGH MR. J. O. ALABI [T/S OLUSHEYE NIGERIA ENTERPRISES] AS ATTORNEY TO EZEKIEL ABIODUN LADIPO FAMILY)

(APPELLANTS)

AND

INTEGRATED CAPITAL SERVICES LIMITED

(RESPONDENT)


PRONOUNCEMENTS


A. JUDGMENT
1. Functus Officio – Situations in which a court becomes functus officio and its effect

Circumstance under which a court becomes functus officio and its effect

“…From the extracts of the judgment above, it is clear that the lower Court having made clear findings in an earlier application, the Court was estopped on the issue to make a contrary finding and what the Court did is tantamount to sitting on appeal over its Ruling. The Lower Court was functus officio to have heard the present motion and it is indeed an abuse of Court process. In the case of FIRST BANK v TSA IND LTD [2010] 15 NWLR (PT 1216) 247 SC the apex Court held that a Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of a matter and it lacks potency to revive, reopen, revisit the matter. It cannot revisit or review the situation. Also this Court had course to make clear pronouncement in the case of ABAH & ORS v. JABUSCO NIG LTD [2007] LPELR – 4325 CA that:

“The general rule of law is that no Court has the power to rehear, review, alter or vary any judgment or order after it has been entered.”Per OBASEKI-ADEJUMO, J.C.A. read in context

2. Delivery of Judgment – When delay in delivery of judgment will occasion a miscarriage of justice

Instance where delay in delivery of judgment will occasion a miscarriage of justice; effect
of same

“…On the whole I am convinced that having a period of over 1 year and three and a half months before this uling, the Lower Court had lost bearing on the indices noted above and the antecedents of the case and the judgment did not demonstrate a total careful demonstration of the history of the case. The procedure adopted resulted in grievous errors and therefore reached a perverse Ruling. This definitely occasioned a glaring miscarriage of justice and therefore qualifies under the exception in the Section 294 (5) of the 1999 Constitution (as amended) and must be set aside.”Per OBASEKI-ADEJUMO, J.C.A. read in context

B. PRACTICE AND PROCEDURE
3. Preliminary Objection – Meaning, purpose and effect of a preliminary objection

Purpose and effect of a preliminary objection; need for Courts to determine same first

“The purpose of a preliminary objection is to determine or terminate proceedings in limine at the point the objection was raised. See the cases of OKOI v IBIANG & ORS [2012] 1 NWLR (PT.716) 455; SEHINDEMI & ORS V. GOVT. OF LAGOS [2006] 10 NWLR (PT 987) 1. In MTN NIG COMMUNICATIONS LTD v MR AKINYEMI ALUKO & ANOR (2013) LPELR – 20473 CA the Court on the main objective of preliminary objection held that:

“Now to the Preliminary objection, since it has to be firstly determined before anything else. Why is this so? This is because a preliminary objection as the name connotes, is a challenge, mounted by the Respondent’s counsel to the hearing of the appeal before the commencement of oral submissions by the Appellant’s counsel. Invariably, the main objective of preliminary objection if adjudged successful is to truncate the hearing of the appeal in limine either partially or totally.” The Lower Court failed to give reference to the preliminary objection and breached the rule. The law has since been settled that when a preliminary objection is raised which says all pending motions shall be heard and that preliminary objection to a hearing must be taken first or together with the said motion. See SENATE PRESIDENT v. NZERIBE [2004] 9 NWLR (PT 878) 251 where ADEKEYE, JCA held that:

“It is economical to hear the two and have a single ruling. The Court may take advantage of hearing two applications together as long as the issue of jurisdiction is first resolved. So that in the event of an appeal by parties, it is easier for the appellate Court to express its view. See also FIRST F. LTD v NNPC [2007] 714 WRN 1S AT 147-148; JAIYE v ABIOYE [2003] 4 NWLR (PT. 70) 397 at 414…”

In ONYEMEH & ORS v EGUCHULAM [1996] 5 NWLR (PT.448) 274 at 265 KUTUGI, JSC stated that:
“The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to the next stage…”
See EFET v INEC (2011) AFWLR (PT 565) 263. In ADELEKAN v. ECU-LINE NV [2006] 12 NWLR (PT.993] the Court emphasised that it is not only expedient but mandatory and if firstly determined before steps are taken in the proceedings, however vague or minute a preliminary objection is. See also YARO v AREWA CONSTRUCTION LTD & ORS [2007] 17 NWLR (PT.1063) 333 where the Court held that:

“The aim and essence of a preliminary objection is to terminate. The preliminary objection is an objection on jurisdiction of the Court to hear the application having first ruled on it. This amounts to a fundamental breach of the law and amounts to shutting out the appellant from adjudication.”Per OBASEKI-ADEJUMO, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY OBASEKI-ADEJUMO, J.C.A.


This appeal is against the Ruling of the High Court of Lagos State, Ikeja Judicial division, coram PHILLIPS, J.; delivered on the 21st of March, 2014, wherein the Court made an Order setting aside the default judgment it entered against the Respondent on the 23rd day of March, 2011 upon the application of the Respondent via a motion on notice dated 6th October, 2011. The Appellant been dissatisfied with the Ruling filed a Notice of Appeal dated 25th March, 2014 and it is against this Ruling that an appeal lies before this Court.

The Appellant’s brief of argument is dated 24th June, 2016 and filed on the same day. The brief was settled by J. M. Afekhuai, Esq; K. N. Nwoke, Esq; J. A. Adewumi, Esq; Jane Oluwaseyi, (Mrs) and Henry Isiekwe, Esq of Rose of Sharon Solicitors, wherein four issues were formulated thus:

1. Whether the failure of the Lower Court to deliver its Ruling in this matter not later than 90 days after the adoption of written briefs of the parties did not occasion miscarriage of justice giving the circumstance and the procedure adopted?

2. Whether the Lower Court was right to hear and determine the motion on notice dated 6th October 2011 before proceeding to hear and determine the Notice of Preliminary objection dated 13th November 2012 challenging the propriety and competence of the said motion on notice?

3. Whether the Lower Court was not functus officio to entertain the issues contained in the motion on notice dated 6th October 2011 having decided similar issues in ruling of 1st June 2012?

4. Whether the service of the originating process for recovery of possession on the Respondent by substituted means was not proper service under the Tenancy Law?

The Respondent’s brief is dated 15th August, 2016 and filed on the 17th August, 2016. It was settled by P. J. Osuji, Esq of Chinedu Akpa & Co., wherein five issues were formulated thus:
1. What is the nature of the relationship between the claimant and the Defendant with respect to 31c Raymond Njoku Street, South West, Ikoyi, Lagos?

2. Whether the Lower Court has the jurisdiction to set aside default Judgment entered against the Respondent on March 23, 2011?

3. Whether the Lower Court has Jurisdiction to make the order dated April 20, 2011 upon exparte application of the Claimant?

4. Whether there was proper service of the Originating processes to wit Writ of Summons and Statement of Claim on the Respondent also the pre-action notices which were purportedly served by pasting at No.31c Raymond Njoku Street, Ikoyi of Statutory Notices?

5. Whether the Ruling of the Lower Court dated March 21, 2014 allegedly delivered later than 90 days after adoption of written addresses of the parties did occasion a miscarriage of justice on the Appellant?

As narrated by the Appellant in their brief of argument, the Appellant is the owner of the 8 flats of 3 bedroom luxury apartment with pent house at 31c Raymond Njoku street, south west, Ikoyi, Lagos, and the Respondent is the tenant of the Appellant who is in possession of the said property. The Appellant instituted an action against the Respondent at the Lower Court to recover possession of this property occupied by the Respondent. The Appellant in this matter was not able to effect personal service on the Appellant, thus, by the leave of Court sought and obtained, the Appellant served the Respondent via substituted means by pasting the originating processes on the door of the apartment occupied by the Respondent. The Appellant thus got a default judgment in his favour against the Respondent on 23rd March, 2011 to recover possession of the property from the Respondent amongst others, as the Respondent failed to enter appearance. The Appellant also got an Order from the Lower Court on the 20th April, 2011 permitting the Deputy Sheriff to force open the door of the property which the Respondent occupies, and take an inventory of all items found therein and keep same in the office of the Deputy Sheriff.

However, the Respondent been dissatisfied with the said default judgment, filed in the Lower Court an application dated the 6th October, 2011 to set it aside on the ground that he was not served the originating processes. The Appellant in response to the Respondent’s application raised a Preliminary objection dated 13th November, 2012. The Lower Court failed to determine the notice of preliminary objection before proceeding to the hearing and determination of the application.

The Respondent’s application was granted and the Court in its Ruling dated 21st March, 2014 set aside the default judgment of March 23rd, 2011 and the Order dated April 20, 2011. It is on this basis that the Appellant entered a Notice of Appeal.

The issues of the Appellant are apt for the determination of this appeal and it is hereby adopted. Issues 1 to 3 will be resolved together as a single issue as the same principle of law applies while issue 4 will be resolved separately.

APPELLANT’S SUBMISSION

The Appellant’s counsel submitted that it is trite law that a Ruling must be delivered within a reasonable time after the conclusion of evidence and the Courts are always ready to set aside a judgment given where there has been undue delay. He relied on the case of KAKARAH v IMONIKHE (1974) 4 SC 1. He submitted that parties in this case adopted their respective applications on the 30th January, 2013, while the Ruling in respect of all the applications was delivered on the 21st March, 2014, that is over 412 days after the adoption of those applications. Counsel also submitted that Section 294(1) of the 1999 Constitution (as amended) provides a 90days timeline within which a judgment must be delivered and that since the Appellant had suffered a miscarriage of justice by reason of the delay in delivering of the said Ruling, such decision must be set aside in line with the proviso in Section 294 (5) of the Constitution.

According to him, the inordinate delay in delivering the Ruling caused the Lower Court to lose sight of the processes and thus led the Court into the commission of three fundamental errors which led to a miscarriage of justice. He contended that the delay resulted in the following:

a. Firstly, the delay caused the Court to fail to avert its mind to its earlier ruling of 1st June, 2012 wherein it held that the Respondent’s sub-tenant was properly and validly served with all Court processes in this matter by substituted means and could not be held to complain of non-service.

b. Due to the delay, the Court committed an error by first considering and determining the Respondent’s application dated 6th October 2011 before determining the Appellant’s notice of Preliminary objection dated 13th November, 2012. c. Due to the delay, according to the Appellant’s counsel, the Court adopted the wrong procedure in deciding the applications before it.
He argued that the undue delay made the Court set aside its judgment on perverse findings. Counsel further submitted that the Court would have arrived at a different conclusion if it had considered its preliminary objection. That where an application is challenging the jurisdiction of a Court, the issue of the jurisdiction must first be resolved. He referred to the cases of A.G. LAGOS STATE v DOSUNMU [1989] 3 NWLR (PT.III) 552; UKWU V. BUNGE [1997] 8 NWLR (PT 518) 527.

The Appellant’s counsel on its issues 3 and 4 submitted that the Lower Court was in error in setting aside the Order for substituted service made on 15/11/10 and the Order for possession made on 20/4/11 on the ground of non service. He contended that this is because the issue had been decided by the Lower Court and the Court is functus officio to entertain same. He submitted that the subtenant had attempted to set aside the judgment on the same grounds of non service as he was in possession of flat 8 and that nothing was served on him at the named address. That this was basis of the Ruling on 1/6/12 but the application was made on 6/10/11 on similar issues and decided same.

He referred to Section 38 of the Rent Control and Recovery of Residential Premises Law to include sub tenant or an occupant whether on rent or otherwise but does not include a person occupying under a bonafide claim to be owners of the premises. He relied on AFRICAN PETROLEUM LTD v. OWODUNNI [1991] 8 NWLR (PT 201) 391; Section 9 and 18 of the Rent Control and Recovery of Residential Premises Law to submit that the subtenant and the Respondent herein are one and the same in the eyes of the law and that a Court process on the subtenant is deemed to be a process on the Respondent. He further contended that the Appellant sufficiently satisfied the requirement of the law by putting the Respondent on notice and that the notice was to the whole world including the subtenants on the premises. He argued that the liability then shifts to the subtenant for failing to give notice to the Respondent immediately. Counsel submitted that the Lower Court was therefore right in dismissing the subtenant’s application but was eminently wrong to have entertained the Respondent’s application on the same ground.

Appellant counsel referred to Order 7 Rule 9 of the Lagos State Civil Procedure Rules, 2012 that the use of ‘subject to’ implies that the provision of the rules are subordinate or inferior to any statutory provision regulating service on a company. He cited FRN v DARIYE [2011] 13 NWLR (Pt.1265) 521 at 545; F.R.N. v OSAHON [2006] 5 NWLR (PT 973) 361; BAKINWU v GOV. ANAMBRA STATE [2009] 18 NWLR (PT.1172) 13; DINGYADI v INEC (NO.1) [2010] 18 NWLR (PT 1224) 1. He contended in addition that the law for the time being in force on service of civil process of magistrate Court is the Magistrates’ Court (Civil Procedure) Rules 2009 in Order 5 2 (e) which also permits Court process to be served on the Respondent by way of substituted service. He relied on Professor I. O. Smith, SAN’S book – Practical approach to law of real property in Nigeria (Ecowatch Publication Ltd, 2013) at page 653 and urged this Court to hold that the lower Court was in error in its decision.

RESPONDENT’S SUBMISSION

Counsel submitted that in view of the provisions of Exhibits A and B (deed of sublease and supplemental deed of sublease – pages 174 to 186 of the record), that the relationship of the Appellant and the Respondent is that of a subleasor and sublessee and not a mere landlord/tenant relationship and that consequently the Respondent cannot be a yearly tenant on the property which is the subject matter of this suit. He contended that the representation of the Appellant of a landlord and tenant relationship smacks of fraud and misrepresentation and the judgment obtained is liable to be set aside. That there is nowhere in the sublease that the Appellant is entitled to determine the sublease by mere notice to quit. Counsel argued that the burden lies on the Appellant to prove the existence of a mere landlord/tenant relationship and that this Court is to hold that such evidence if produced will be unfavourable to the Appellant. He relied on the cases of
OKUNZUA v AMOSU [1992] NWLR (Pt.248) 416; BELLO v KASSIM (1969) NMLR 148, 152. Respondent counsel on its issue 2 submitted that a Court has the power to revoke any order made if it was obtained without the following any of the rules of procedure. He relied on the cases of DAHUWA v ADENIRAN [2003] 17 NWLR (PT 849) 376; EZE v. EKERU (1974) ECSLR (vol. 2) 35; KALAGBOR v GENERAL OIL LTD (2008) ALL FWLR (PT 418) 303 at 309, 321; IYANG v. CHUKWUOGOR [2007] ALL FWLR (PT 344) 165; OGOLO V. OGOLO [2006] 5 NWLR (PT.972) and held that the judgment of 23rd March, 2011 via default judgment is improper in view of the Appellant’s claim and that the Lower Court had the power to set it aside as it is not a judgment on the merit. Counsel further held that in view of Exhibit J which is the Respondent’s defence, the judgment could be set aside.

On issue 3, counsel submitted that by virtue of Section 36 of the 1999 Constitution, the Respondent was not given an opportunity to be heard before judgment was entered against her. He relied on AMANCHUKWU v F.RN (2007) ALL FWLR (PT 380) 1578 at 1591; UMARU v STATE (2008) Vol. 42 WRN 60 at 75; OMOTUNDE v. OMOTUNDE (2001) 9 NWLR (PT.718); Order 20 Rule 12; Order 39 Rule 1 of the High Court of Lagos State Civil Procedure Rules, 2012. On the issue of proper service of Court process, counsel referenced Section 78 of the Companies and Allied Matters Act and Order 7 Rule 9 of the High Court of Lagos State Civil Procedure Rules, 2012 and submitted that the Appellant was aware of the Respondent’s office address and that paragraphs 2 and 4 of the affidavit in support of the motion for substituted service did not in any way suggest that the Respondent carries on business at 31C Raymond Njoku street, South West, Ikoyi, Lagos and that it does not justify service on the Respondent at the said address. Counsel contended that the service was improper and a deliberate attempt to shut out the Respondent from defending the suit. He cited the cases of GUY & CO PROP LTD v KIO-LAWSON [2007] WRN Vol. 43 138 at 160; S.G.B.N LTD v ADEWUNMI (2003) 4 SC (PT 1) 93; IWUAGOLU v. AZYKA [2007] 5 NWLR (PT 1028) 613.

He held that the purported service of the statutory notice on the Respondent was improper and can only be resolved at the trial.

On its 5th issue, Respondent counsel submitted that by virtue of Section 294 (1) and (5) of the 1999 Constitution, the time provided for any judgment is ninety days after conclusion evidence and such decision shall not be set aside or treated as a nullity solely on the ground of non-compliance with the section unless the Court exercising jurisdiction by way of appeal is satisfied that the party complaining has suffered a miscarriage of justice. He relied on PDP v. OKOROCHA [2012] 15 NWLR 205; OGUNDELE v FASU (1999) 9 SCNJ 105 at 112; THE STATE v USMAN [2005] 1 NWLR (PT.906) 80 at 98 – 100; ATUNGWU v OCHEKWU [2004] 17 NWLR (PT 901) 18 at 41. Counsel contended that the Appellant did not articulate specifically in what way there was a miscarriage of justice by reason of delivering the Ruling. He submitted that the Appellant is still in possession of the property and benefitting from the income accruing from the possession and that if there is any party suffering miscarriage of justice, it is the Respondent because she was ejected from the property without due process.

RESOLUTION

The law as contained in Section 294(1) of the Constitution is not in dispute but what is in dispute is whether the fact of the case has occasioned a miscarriage of justice. The facts are agreed; the adoption of written addresses was done on 30th January, 2013 while the Ruling was delivered on 21st March, 2014 a period of 412 days which is 1 year and three and half months. See pages 335-336 when the adoption was done and pages 344-353 when the judgment was delivered.

Against the back drop of the alleged errors this Court shall examine same forthwith. I have read the Ruling of the Lower Court of 21st March, 2014 setting aside the default judgment, the Exparte Order of Court dated 20th April, 2011 and a Ruling on the party seeking to be joined as the 2nd defendant delivered on 1st June, 2012. The Court made a finding in the Ruling of 1st June at page 342 saying:

“…his excuse that he was not aware because his flat was temporarily vacated due to refurbishment work being carried out therein is purely domestic and does not qualify as non-service. From the records of the ourt, I can see that the processes were served by substituted means in November 2010 and judgment was entered and executed in March 2011 and April 2011 respectively. The Applicant brought this application in November 2011 but the Defendant in this action has not reacted to the judgment entered against it and furthermore, the terms of settlement between the Defendant and the Applicant is to the effect that the Defendant would secure an extension of the lease from the claimant in favour of the Applicant. If the Defendant herein fails in his bid to secure this from the claimant then the Applicant will have to claim his money back from it by suing it for the refund. Accordingly I see no reason why I should set aside the judgment of this Court at the instance of the Applicant who has not provided any valid ground warranting the said judgment to be set aside.”

Appellant complained on the preliminary objection which was not heard before the motion of 6/10/11. In lines 24 at page 345 of the record in the Ruling of 21st March, 2014, the Lower Court noted the preliminary objection filed and the reliefs therein and that it shall be considered in the Ruling but at pages 347 the preliminary objection issues for determination of both parties were noted but amazingly the Lower Court omitted to evaluate the preliminary objection in the rest of the judgment. Instead she went headlong into the Respondent’s application of 6/10/11 praying the Lower Court to set aside its default judgment and considered same without reference to the preliminary objection. The preliminary objection dated 13/11/12 states:

“1. That the defendants/judgment debtors applications dated 6th October, 2011; 9th December, 2011; 24 May, 2012 and 3rd July, 2012 respectively have become an abuse of Court process as they have been overtaken by events in view of the Ruling of the Court dated 1st June, 2012

2. The said motion be dismissed accordingly.”

The purpose of a preliminary objection is to determine or terminate proceedings in limine at the point the objection was raised. See the cases of OKOI v IBIANG & ORS [2012] 1 NWLR (PT.716) 455; SEHINDEMI & ORS V. GOVT. OF LAGOS [2006] 10 NWLR (PT 987) 1. In MTN NIG COMMUNICATIONS LTD v MR AKINYEMI ALUKO & ANOR (2013) LPELR – 20473 A the Court on the main objective of preliminary objection held that:

“Now to the Preliminary objection, since it has to be firstly determined before anything else. Why is this so? This is because a preliminary objection as the name connotes, is a challenge, mounted by the Respondent’s counsel to the hearing of the appeal before the commencement of oral submissions by the Appellant’s counsel. Invariably, the main objective of preliminary objection if adjudged successful is to truncate the hearing of the appeal in limine either partially or totally.”

The Lower Court failed to give reference to the preliminary objection and breached the rule. The law has since been settled that when a preliminary objection is raised which says all pending motions shall be heard and that preliminary objection to a hearing must be taken first or together with the said motion. See SENATE PRESIDENT v. NZERIBE [2004] 9 NWLR (PT 878) 251 where ADEKEYE, JCA held that:

“It is economical to hear the two and have a single ruling. The Court may take advantage of hearing two applications together as long as the issue of jurisdiction is first resolved. So that in the event of an appeal by parties, it is easier for the appellate Court to express its view. See also FIRST F. LTD v NNPC [2007] 714 WRN 1S AT 147-148; JAIYE v ABIOYE [2003] 4 NWLR (PT.870) 397 at 414…”

In ONYEMEH & ORS v EGBUCHULAM[1996] 5 NWLR (PT.448) 274 at 265 KUTUGI, JSC stated that:

“The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to the next stage…”

See EFET v INEC (2011) AFWLR (PT 565) 263. In ADELEKAN v. ECU-LINE NV [2006] 12 NWLR (PT.993] the Court emphasised that it is not only expedient but mandatory and if firstly determined before steps are taken in the proceedings, however vague or minute a preliminary objection is. See also YARO v AREWA CONSTRUCTION LTD & ORS [2007] 17 NWLR (PT.1063) 333 where the Court held that:

“The aim and essence of a preliminary objection is to terminate. The preliminary objection is an objection on jurisdiction of the Court to hear the application having first ruled on it. This amounts to a fundamental breach of the law and amounts to shutting out the appellant from adjudication.”

From the extracts of the judgment above, it is clear that the lower Court having made clear findings in an earlier application, the Court was estopped on the issue to make a contrary finding and what the Court did is tantamount to sitting on appeal over its Ruling. The Lower Court was functus officio to have heard the present motion and it is indeed an abuse of Court process. In the case of FIRST BANK v TSA IND LTD [2010] 15 NWLR (PT 1216) 247 SC the apex Court held that a Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of a matter and it lacks potency to revive, reopen, revisit the matter. It cannot revisit or review the situation. Also this Court had course to make clear pronouncement in the case of ABAH & ORS v. JABUSCO NIG LTD [2007] LPELR – 4325 CA that:

“The general rule of law is that no Court has the power to rehear, review, alter or vary any judgment or order after it has been entered.”

Should the Lower Court had followed laid down principles of stare decisis it would not have committed such grave error.

On the whole I am convinced that having a period of over 1 year and three and a half months before this Ruling, the Lower Court had lost bearing on the indices noted above and the antecedents of the case and the judgment did not demonstrate a total careful demonstration of the history of the case. The procedure adopted resulted in grievous errors and therefore reached a perverse Ruling. This definitely occasioned a glaring miscarriage of justice and therefore qualifies under the exception in the Section 294 (5) of the 1999 Constitution (as amended) and must be set aside. Issues 1 to 3 are therefore resolved in favour of the Appellant.

Having resolved, issues 1 to 3, an Order is hereby made setting aside the entire Ruling of the Lagos State High Court coram PHILLIPS, J., delivered on the 21st of March, 2014. There is no need considering the last issue as a house built on nothing cannot stand. It will be a futile exercise.

The appeal has merit and is hereby allowed. The Ruling of the High Court of Lagos State coram PHILLIPS, J., delivered on the 21st of March, 2014 in suit No: LD/2049/2010 is hereby set aside and in its place, the default judgment of the same Court is accordingly affirmed. Costs of N200,000 is awarded in favour of the Appellant.

GARBA, JCA.

I have read a draft of the lead judgment written by my learned brother Abimbola Osarugue Obaseki Adejumo, JCA, in this appeal and agree with the conclusion reached as well as the orders made therein.

TUKUR, JCA.

My learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

J. A. ADEWUMI For Appellant(s)

Mandu Moses-Ubek For Respondent(s)