ROYAL GATE ESTATE LTD & ANOR V SKYROCK NIGERIA LIMITED

ROYAL GATE ESTATE LTD & ANOR V SKYROCK NIGERIA LIMITED


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

ON MONDAY, 9TH JULY, 2018


Appeal No: CA/A/473/2010
CITATION:

Before Their Lordships:

ABUBAKAR DATTI YAHAYA, JCA

PETER OLABISI IGE, JCA

TANI YUSUF HASSAN, JCA


BETWEEN

ROYAL GATE ESTATE LTD
BARR. MIKE NKWOCHA

(APPELLANTS)

AND

SKY ROCK NIGERIA LIMITED

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Unappealed decisions – Position of the law on a judgment of a Court not appealed against

Position of the law as regards judgment of a Court not appealed against

“On the submission of learned counsel for the appellants that nothing was placed before the trial Court to warrant the suit to be heard on the Undefended List procedure, I wish to state that there is no ground of appeal on this and therefore, he lacks the competence to raise it. A decision of a Court binds the parties and the appellate Court, unless that decision is challenged and set aside. The decision by the trial Court to hear the suit on the undefended List has not been appealed against and so no Issue can be raised and argued on it. A party who fails to appeal against a Judgment, Ruling or a decision of a Court given, is bound by it – F.I.B PLC Vs. PEGASUS (2004) 4 NWLR (Pt.863) 369. There is a presumption that the decision of the trial Court to place the Suit on the Undefended List, following an application to that effect by the respondent/plaintiff, is valid and binding until it is set aside – OGIUGO Vs. OGIUGO (2001) 1 WRN 131 and NWANWATA Vs. ESUMEI (1998) 8 NWLR (Pt. 553) 650.

The submissions of counsel for the appellants attacking the placement of the Suit on the Undefended List in the first place, are therefore hereby discountenanced.”Per YAHAYA, J.C.A. read in context

B. PRACTICE AND PROCEDURE
2. Undefended List Procedure – Instances when leave to defend would not be granted

When leave to defend would not be granted

“By the provision of Order 21 Rule 3(1) of the FCT High Court Civil Procedure Rules 2004, a defendant who is served with a Writ of Summons on the Undefended List has five days to the date fixed for hearing, to file a Notice of Intention to defend the Suit, along with an affidavit disclosing a defence on the merit. A defence on the merit, means a prima facie defence, a defence that shows that there are triable issues that would warrant the Suit to be transferred to the general cause list for hearing, instead of summarily. It does not mean a successful defence. See DENTON-WEST Vs. MUOMA (SUPRA); BEFAREEN PHARM LTD Vs. A.I.B LTD (SUPRA) and GLOBAL BANK LTD Vs. S.A INS (SUPRA).? What are the defences showing triable issues disclosed by the appellants in their affidavit in support of the Notice of Intention to defend? There is the issue as to when the premises were vacated by the appellants which would determine the arrears of the rents claimed. Whereas the respondent/plaintiff deposed that the appellants vacated the premises on 25th March, 2009, the appellants/defendants deposed that they vacated on 10th August 2008. When conflicts on material issues are shown in the affidavits of the contending parties, the Court would normally call for oral evidence to resolve the conflicts – PDP Vs. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515; OBLA Vs. OTAGOYI (2007) 5 NWLR (Pt.1027) 304 and GOVERNOR KOGI STATE Vs. MOHAMMED (2009) 13 NWLR (Pt. 1159) 491. However, it is not by calling oral evidence alone, that conflicts in affidavits can be resolved. When there are documents before the Court, such as those exhibited to the affidavits, then the Court can utilise them to resolve the conflicts, without the necessity of calling oral evidence – EIMSKIP LTD Vs. EXQUISIT IND. LTD (2003) 4 NWLR (Pt. 809) 88; BAWA vs. PHENIAS (2007) 4 NWLR (Pt. 1024) 251; G.M.O.N & S LTD Vs. AKPUTA (2010) 9 NWLR (Pt. 1200) 443.

Paragraph 3 (vi) of the affidavit in support of the Writ on the Undefended List deposes that the appellants vacated and handed over the keys of the premises on 25th March, 2009. Exhibit C to the affidavit is an acknowledgment of the receipt of the keys by the respondent, from the legal practitioner to the 2nd appellant, on 25th March, 2009. The affidavit in support of the Notice of Intention to defend on the other hand, at paragraph 3 (c) deposes that the appellants vacated the premises on 10th August, 2008. Exhibit B attached to the affidavit, is a letter conveying the keys by the appellants to the respondent. This Exhibit is only a letter conveying the keys. The appellants have not produced evidence, that the letter and the keys were infact received by the respondent, let alone, when they received same. That Exhibit B is therefore not evidence of when the appellants actually vacated and handed over the keys to the respondent. The trial Court and this Court can look at these documents (Exhibits) and resolve the conflicts. Exhibit C attached to the affidavit of the respondent, is a support of its depositions as to when the appellants vacated the premises. Exhibit B attached to the affidavit of the appellants does not show actual receipt of the keys, the date and so when they vacated. It cannot be an authentic support to their deposition. It cannot therefore show a defence

to the action. At any rate, a more crucial and fundamental issue regarding the vacation date, is shown by the deposition of the appellants in their affidavit in support of the Notice of Intention to defend. Paragraph (e) therein states –
“That the purported arrears of rent being claimed for the tenancy period of 1st February, 2008 to 31st January, 2009 were part of the rent that was collected by the 2nd defendant and Good Living Properties when they were in management of the property, but was retained by them as part of the debt that the plaintiff is owing them.” (Emphasis mine).

This deposition shows that rents in the premises were infact collected by the appellants for the period claimed by the respondent – 1st February 2008 – 31st January 2009. The appellants have therefore admitted collecting the rents for the period. Since this is so, then the deposition at paragraph 3(c) of their affidavit, that they vacated the premises on 10th August, 2008 is in direct conflict with their paragraph 3(e). They could not vacate the premises in August 2008 and then collect rents up to 31st January, 2009! Somebody must have been in occupation, before they could collect the rents from him. The affidavit of the appellants contradicts itself and contradicts the exhibit attached to it. No Court of law would rely upon them to accept that a genuine defence on the merit has been disclosed. It is not a question of demanding an iron cast defence. It is an exercise of resolving a conflict in order to see whether a defence on the merit has been disclosed. A defence on the merit can only come about when the affidavit in its support does not contradict itself. This is because it is the law, that contradictions, especially material contradictions as disclosed in the affidavit in support of the Notice of Intention to defend, destroy or weaken the case or point being canvassed or put forward, through that affidavit evidence – OPARAUGO Vs. OPARAUGO (2008) 5 NWLR (Pt.1081) 574; ARJAY LTD Vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (Pt. 156) 943 at 984 or (2003) 7 NWLR (Pt. 820) 577.

It is clear that the affidavit in support of the Notice of Intention to defend, materially contradicts itself and has destroyed the defence put up by the appellants that they are not indebted to the respondent since they had vacated the premises in August 2008. No defence on the Merit was thereon, shown at all. Furthermore, it is no defence on the merit, that they collected the amounts claimed and retained same simply because the respondent owed Good Living Properties Ltd and the 2nd appellant. How much they owed, has not been disclosed in the affidavit. The Court documents exhibited had been withdrawn and struck out and therefore no longer available to show any claim was pending. More so, Good Living Properties Ltd is not a party to the Suit instituted by the respondent. How can it be brought to show or disclose a defence on the merit?

It is crystal clear, that all the points raised at page 6 of the appellants’ brief as triable issues, are not, since the basis of the defence, i.e. that they are not owing the sums claimed, has been destroyed by the contradiction in the affidavit in support of the Notice of Intention to defend. There is therefore no conflict between the affidavit of the appellants and the respondent as such. There is nothing that has countered the deposition of the respondent/plaintiff, since the affidavit in support of the Notice of Intention to defend has been destroyed and cannot be relied upon to warrant the calling of any oral evidence to resolve any purported conflict. In my view, the trial judge properly evaluated the documents before him as he was entitled to do, and had come to the proper decision. He did not demand an iron cast defence. He did not see any need for calling any oral evidence warranting the transfer of the case to the general cause list for hearing. He did not see any defence on the merit disclosed. We agree with him. The contradictory affidavit in support of the Notice of Intention to defend was not worth the effort. No defence, let alone on the merit, has been disclosed.”Per YAHAYA, J.C.A read in context


LEAD JUDGMENT DELIVERED BY YAHAYA, J.C.A.


This appeal arose from the Judgment of the FCT High Court delivered by Hon. Justice J. Okeke on the 1st December, 2009.

The respondent as plaintiff, filed an action on the Undefended List, claiming against the appellants as defendants, the following –

a. N1,200,000 (One Million, Two Hundred Thousand Naira) only, being unpaid rent/for the use and occupation of Plot 1744 (NO.10) Udo Udoma Crescent, Asokoro Abuja, from 1st February, 2008 – 31st January, 2009.

b. N100,000 (One Hundred Thousand Naira) only, being one month unpaid rent/use and occupation of Plot 1744 (NO.10) Udo Udoma Crescent Asokoro, Abuja for the month of February, 2009.

c. 10% interest on the Judgment sum from date of judgment, till the sum is liquidated.

On being served, the appellants filed a Notice of Intention to defend with an affidavit containing three annexures. The matter went to trial and the Court gave judgment for the plaintiff’ as per its claims. Hence this appeal.

The facts as disclosed in the affidavits, are that the respondent herein, is the Landlord of Plot No. 1744 (No 10), Udo Udoma Crescent Asokoro Abuja which was managed by the 1st appellant, with the 2nd appellant as its managing Director. The respondent terminated the appointment of the appellants as managers/agents of the said property in February 2006. The appellants occupied the premises as yearly tenants from 1st February 2005 to 31st January 2007 at a yearly rent of N1.2 million and paid it. The tenancy was renewed for another year from 1st February, 2007 to 31st January, 2008 and paid for. After the expiration of the tenancy on 31st January, 2008, the appellants continued in occupation and possession of the premises from 1st February, 2008 to 31st January, 2009 and up to the end of February 2009, without paying rents. They gave up possession on 25th March 2009. Hence the claims for the rents of one year, one month.

On the other hand, the appellants deposed to the fact that they vacated the premises on the 10th of August, 2008, and that they are not indebted to the respondent. They deposed to the facts that the purported arrears of rent claimed by the respondent for 1st February, 2008 to 31st January, 2009, were part of the rents collected by the 2nd appellant and Good Living properties when they were managing the property, and that they retained these sums as part of the debt the respondent owed them. They further showed that they instituted an action in respect of the said debt but was withdrawn as part of the spirit of settlement out of Court. They were not indebted to the respondent they said, and they intended to file a counter claim in the Suit instituted by the respondent. They prayed for the Suit to be transferred to the general cause list for hearing.

The Appellants’ brief was filed on the 18/1/18 by their counsel Benson Ibezim. He submitted one Issue for determination to be: –

Whether the trial Court was right in delivering judgment in this case under the Undefended List when there were series of irreconcilable differences between the exhibits and the affidavit in support of the application and that of the Notice of Intention to defend, and when the affidavit in support of the Undefended List did not establish any liquidated money claim before the Court.

The Respondent’s brief was filed on the 23/1/18 by Mr. Obi C. Nwakor, and the lone Issue he suggested, is;

Whether from the facts of the case, and materials before the Court as presented by the parties to the Suit, the trial Court was wrong in entering judgment for the Respondent.

As the two Issues are not too dissimilar, I shall utilize the Issue presented by the appellants –

WHETHER THE TRIAL COURT WAS RIGHT IN DELIVERING JUDGMENT UNDER THE UNDEFENDED LIST WHEN THERE WERE SERIES OF IRRECONCILABLE DIFFERENCES BETWEEN THE EXHIBITS AND THE AFFIDAVIT IN SUPPORT OF THE APPLICATION AND THAT OF THE NOTICE OF INTENTION TO DEFEND AND WHEN THE AFFIDAVIT IN SUPPORT OF THE UNDEFENDED LIST DID NOT ESTABLISH ANY LIQUIDATED MONEY CLAIM BEFORE THE COURT.

Learned counsel for the appellants Mr. Ibezim, submitted that when a defendant in an Undefended List proceedings files a Notice of Intention to defend with an affidavit which discloses a defence on the merit, then the Court has a duty to transfer the Suit to the general cause list for hearing. He placed reliance on Order 21 Rule 3(1) of the FCT High Court Civil Procedure Rules and the cases of DENTON-WEST Vs. MUOMA (2010) 2 NWLR (Pt. 1177) 19 at 24 – 25 and BEFAREEN PHARM LTD Vs. A. I. B LTD (2005) 17 NWLR (Pt. 954) 230 at 234.

He further submitted that a defence on the merit or a prima facie defence, does not mean a defence that would ultimately succeed or an iron cast defence. It only means a prima facie defence – GLOBAL BANK LTD Vs. S. A. INS (2010) 13 NWLR (1210) 1 at 4. He then contended that the trial Court did not adhere to the principles laying down what constitutes a defence on the merit and so fell into error in demanding cast iron defences. Counsel emphasised that the affidavit in support of the Notice of Intention to defend, has shown that the appellants had a good defence since they were not indebted to the respondent but that it was the respondent that is indebted to the 2nd appellant and Good Living Properties Ltd. He referred to the paragraphs of the affidavit and argued that several triable issues had been raised in that – (i) when did the appellants vacate the premises? (ii) when were the keys of the premises returned to the respondent, since there is a conflict in dates between the affidavit in support of the Writ and the affidavit in support of the Notice of Intention to defend? (iii) was the rent previously paid and detained by the second appellant? (iv) was the respondent indebted to the 2nd appellant and God Living Properties Limited in respect of the subject matter? (vi) did the affidavit in support of the Undefended List Writ disclose any merit in entering the matter under the undefended list let alone entering judgment on the Undefended List?

Learned counsel referred to the exhibits attached to the affidavit in support of the Notice of Intention to defend, especially Exhibit A and Exhibit C, showing the basis of their counter claim against the respondent. He then submitted, by referring to page 72 of the record containing the Judgment of the trial Court, that the trial judge considered the success of the defence of the appellants at that stage, contrary to the authorities laying down only a defence on the merit. He argued that it was out of place to consider at that stage, whether the defence would succeed or fail, as that can only come when the suit is transferred to the general cause list and witnesses are cross-examined – BAWA vs. PHENIAS (2007 4 NWLR (pt. 1024) 25t at 255.

Counsel infact argued that there was nothing placed before the trial Court, to warrant listing the respondent’s Suit, on the undefended List. He submitted therefore, that it was a misnomer to hear the case on the Undefended List. He referred to MBAHI Vs. FIXITY INV. ENT. CO LTD (2005) 3 NWLR (Pt. 912) 386 at 386.

Counsel also argued that no agreement was placed before the trial Court to show the commencement and termination of the tenancy between the parties. That no amount payable was disclosed, nor the actual date of the vacation of the premises by the appellants. On that account, the suit ought to have been transferred to the general cause list for hearing and not for judgment to be delivered. He urged us to allow the appeal.

In his response, learned counsel for the respondent, submitted that an affidavit in support of a Notice of Intention to defend must disclose a defence on the merit to show that there are triable issues or questions and that such triable issues should not be at large but related to the plaintiff’s claim, not a fresh cause – FEDERAL GOVERNMENT OF NIGERIA Vs. SANI (1990) 4 NWLR (Pt. 147) 688 and GOD”S LITTLE TANNERY Vs. NWAIGBO (2005) 7 NWLR (Pt. 924) 298. He then argued that a mere denial that the defendant is not indebted to the plaintiff, is not sufficient as the affidavit must condescend upon particulars and deal specifically with the plaintiff’s claim – U.N.N. Vs. ORAZULIKE TRADING CO. (1989) 5 NWLR (Pt. 119) and PETER TIWELL (NIG) LTD Vs. INLAND BANK (NIG) LTD (1997) 3 NWLR (Pt.494) 408.

On the rents that should have been paid to the respondent but was held back by way of lien by the appellants on part satisfaction of the fees owed them by the respondent, counsel submitted that this assertion is not supported by the case as presented and that no particulars of the indebtedness were furnished.

Learned counsel for the respondent also submitted that whereas the affidavit in support of the Notice of Intention to defend avers that it is the respondent that is owing the 2nd appellant and Good Living Properties Ltd, Exhibit A attached to the affidavit on the other hand, states categorically that “neither of the appellants had been managing the property but Good Living Properties Ltd.” Not only was the 2nd appellant not said to have rendered the services he argued, but Good Living properties is not a party to the suit. This conflict entitles a Court to reject the deposition he submitted – A.G. ENUGU Vs. AVOP (1995) 6 NWLR (Pt.399) 90; ARJAY LTD Vs. AIRLINE MGT LTD (2003) 14 NSCQR 29 at 35 and ONYEMELUKWE Vs. WACC &ANR (1995) 4 NWLR (Pt.337) 44 at 55.

Counsel rounded off, by submitting that the appellants did not disclose a defence on the merit, as rightly held by the trial Court, but a woolly one aimed at diverting attention. He urged us to dismiss the appeal.

On the submission of learned counsel for the appellants that nothing was placed before the trial Court to warrant the suit to be heard on the Undefended List procedure, I wish to state that there is no ground of appeal on this and therefore, he lacks the competence to raise it. A decision of a Court binds the parties and the appellate Court, unless that decision is challenged and set aside. The decision by the trial Court to hear the suit on the undefended List has not been appealed against and so no Issue can be raised and argued on it. A party who fails to appeal against a Judgment, Ruling or a decision of a Court given, is bound by it – F.I.B PLC Vs. PEGASUS (2004) 4 NWLR (Pt.863)

369. There is a presumption that the decision of the trial Court to place the Suit on the Undefended List, following an application to that effect by the respondent/plaintiff, is valid and binding until it is set aside – OGIUGO Vs. OGIUGO (2001) 1 WRN 131 and NWANWATA Vs. ESUMEI (1998) 8 NWLR (Pt. 563) 650.
The submissions of counsel for the appellants attacking the placement of the Suit on the Undefended List in the first place, are therefore hereby discountenanced.

By the provision of Order 21 Rule 3(1) of the FCT High Court Civil Procedure Rules 2004, a defendant who is served with a Writ of Summons on the Undefended List has five days to the date fixed for hearing, to file a Notice of Intention to defend the Suit, along with an affidavit disclosing a defence on the merit. A defence on the merit, means a prima facie defence, a defence that shows that there are triable issues that would warrant the Suit to be transferred to the general cause list for hearing, instead of summarily. It does not mean a successful defence. See DENTON-WEST Vs. MUOMA (SUPRA); BEFAREEN PHARM LTD Vs. A.I.B LTD (SUPRA) and GLOBAL BANK LTD Vs. S.A INS (SUPRA).

What are the defences showing triable issues disclosed by the appellants in their affidavit in support of the Notice of Intention to defend?

There is the issue as to when the premises were vacated by the appellants which would determine the arrears of the rents claimed. Whereas the respondent/plaintiff deposed that the appellants vacated the premises on 25th March, 2009, the appellants/defendants deposed that they vacated on 10th August 2008. When conflicts on material issues are shown in the affidavits of the contending parties, the Court would normally call for oral evidence to resolve the conflicts – PDP Vs. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515; OBLA Vs. OTAGOYI (2007) 5 NWLR (Pt.1027) 304 and GOVERNOR KOGI STATE Vs. MOHAMMED (2009) 13 NWLR (Pt. 1159) 491.

However, it is not by calling oral evidence alone, that conflicts in affidavits can be resolved. When there are documents before the Court, such as those exhibited to the affidavits, then the Court can utilise them to resolve the conflicts, without the necessity of calling oral evidence – EIMSKIP LTD Vs. EXQUISIT IND. LTD (2003) 4 NWLR (Pt. 809) 88; BAWA vs. PHENIAS (2007) 4 NWLR (Pt. 1024) 251; G.M.O.N & S LTD Vs. AKPUTA (2010) 9 NWLR (Pt. 1200) 443.

Paragraph 3 (vi) of the affidavit in support of the Writ on the Undefended List deposes that the appellants vacated and handed over the keys of the premises on 25th March, 2009. Exhibit C to the affidavit is an acknowledgment of the receipt of the keys by the respondent, from the legal practitioner to the 2nd appellant, on 25th March, 2009. The affidavit in support of the Notice of Intention to defend on the other hand, at paragraph 3 (c) deposes that the appellants vacated the premises on 10th August, 2008. Exhibit B attached to the affidavit, is a letter conveying the keys by the appellants to the respondent. This Exhibit is only a letter conveying the keys. The appellants have not produced evidence, that the letter and the keys were infact received by the respondent, let alone, when they received same. That Exhibit B is therefore not evidence of when the appellants actually vacated and handed over the keys to the respondent. The trial Court and this Court can look at these documents (Exhibits) and resolve the conflicts. Exhibit C attached to the affidavit of the respondent, is a support of its depositions as to when the appellants vacated the premises. Exhibit B attached to the affidavit of the appellants does not show actual receipt of the keys, the date and so when they vacated. It cannot be an authentic support to their deposition. It cannot therefore show a defence to the action.

At any rate, a more crucial and fundamental issue regarding the vacation date, is shown by the deposition of the appellants in their affidavit in support of the Notice of Intention to defend. Paragraph 3 (e) therein states –
“That the purported arrears of rent being claimed for the tenancy period of 1st February, 2008 to 31st January, 2009 were part of the rent that was collected by the 2nd defendant and Good Living Properties when they were in management of the property, but was retained by them as part of the debt that the plaintiff is owing them.”(Emphasis mine).

This deposition shows that rents in the premises were infact collected by the appellants for the period claimed by the respondent – 1st February 2008 – 31st January 2009. The appellants have therefore admitted collecting the rents for the period. Since this is so, then the deposition at paragraph 3(c) of their affidavit, that they vacated the premises on 10th August, 2008 is in direct conflict with their paragraph 3(e). They could not vacate the premises in August 2008 and then collect rents up to 31st January, 2009! Somebody must have been in occupation, before they could collect the rents from him. The affidavit of the appellants contradicts itself and contradicts the exhibit attached to it. No Court of law would rely upon them to accept that a genuine defence on the merit has been disclosed. It is not a question of demanding an iron cast defence. It is an exercise of resolving a conflict in order to see whether a defence on the merit has been disclosed. A defence on the merit can only come about when the affidavit in its support does not contradict itself. This is because it is the law, that contradictions, especially material contradictions as disclosed in the affidavit in support of the Notice of Intention to defend, destroy or weaken the case or point being canvassed or put forward, through that affidavit evidence – OPARAUGO Vs. OPARAUGO (2008) 5 NWLR ( P t . 1 0 8 1 ) 5 7 4 ; A R J A Y L T D V s . A I R L I N E MANAGEMENT SUPPORT LTD (2003) FWLR (Pt. 156) 943 at 984 or (2003) 7 NWLR (Pt. 820) 577.

It is clear that the affidavit in support of the Notice of Intention to defend, materially contradicts itself and has destroyed the defence put up by the appellants that they are not indebted to the respondent since they had vacated the premises in August 2008. No defence on the Merit was thereon, shown at all.

Furthermore, it is no defence on the merit, that they collected the amounts claimed and retained same simply because the respondent owed Good Living Properties Ltd and the 2nd appellant. How much they owed, has not been disclosed in the affidavit. The Court documents exhibited had been withdrawn and struck out and therefore no longer available to show any claim was pending. More so, Good Living Properties Ltd is not a party to the Suit instituted by the respondent. How can it be brought to show or disclose a defence on the merit?

It is crystal clear, that all the points raised at page 6 of the appellants’ brief as triable issues, are not, since the basis of the defence, i.e. that they are not owing the sums claimed, has been destroyed by the contradiction in the affidavit in support of the Notice of Intention to defend. There is therefore no conflict between the affidavit of the appellants and the respondent as such. There is nothing that has countered the deposition of the respondent/plaintiff, since the affidavit in support of the Notice of Intention to defend has been destroyed and cannot be relied upon to warrant the calling of any oral evidence to resolve any purported conflict.

In my view, the trial judge properly evaluated the documents before him as he was entitled to do, and had come to the proper decision. He did not demand an iron cast defence. He did not see any need for calling any oral evidence warranting the transfer of the case to the general cause list for hearing. He did not see any defence on the merit disclosed. We agree with him. The contradictory affidavit in support of the Notice of Intention to defend was not worth the effort. No defence, let alone on the merit, has been disclosed. In that vein therefore, the Issue for determination is resolved against the appellants. This Appeal is totally lacking in merit and it is dismissed, with N75,000 costs to the respondent.

IGE, J.C.A.

I agree

HASSAN, J.C.A.

I read the judgment just delivered by my learned brother Abubakar Datti yahaya, JCA. My Lord has thoroughly dealt with the sole issue in this appeal.

I have nothing useful to add. I agree with the conclusion dismissing the appeal for totally lacking in merit. I abide by the order as to costs.

Appearances:

Benson Ibezim For Appellant(s)

Obi C. Nwakor For Respondent(s)