UWAGBOE V ERIYO

UWAGBOE V ERIYO


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

ON THURSDAY, 8TH JUNE, 2017.


APPEAL NO: CA/B/338/2005

CITATION: CA (2017) 6 LLIR 13

Before Their Lordships

JIMI OLUKAYODE BADA, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A.


BETWEEN

1. HOWARD EGHOSA UWAGBOE
2. MRS. OSAWEMWENZE UWAGBOE

(APPELLANTS)

AND

1. MRS. EHIMWENMA ERIYO
2. MIKE EREMWANARUE ENEHIZENA

RESPONDENTS


PRONOUNCEMENTS

A. EVIDENCE
1. Production of Document–On the meaning of “proper custody of a document” in relation to the production of a document in evidence;

The issue of proper custody of documents has been settled long ago in the case of:- OBIANWUNA OGBUNYIYA & ORS VS OBI OKUDO & ORS (1979) All NLR (Reprint Edition) Page 105 at 112, where the Supreme Court per Idigbe JSC held among others as follows: “What after all, is meant by expression “proper custody” of a document? It means no more than “its deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found”, and “proof of production from proper custody is required not as a ground for reading the document”…“but to afford the Judge reasonable assurance of it as being what it purports to be.” See – Phipson Evidence 12th Edition Article 1762, Page 731.” PER BADA, J.C.A. (para. 36) READ IN CONTEXT.

2. Unchallenged Evidence–On the principle of law that a court is entitled to act on unchallenged evidence

The law is settled that where evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it. See the following cases: ISAAC OMOREGBE VS DANIEL LAWANI (1980) 3 – 4 SC Page 108 at 117; ODULAJA VS HADAD (1973) 11 SC Page 35; NIGERIAN MARITIME SERVICES LTD VS ALHAJI AFOLABI 1978 2 SC Page 79 at 81; AMERICAN CYNAMID CO. VS VITALITY PHARM LTD (1991) 2 NWLR Part 7 Page 15; GOVERNOR OF ZAMFARA STATE & ORS VS ALHAJI SULEIMAN & ORS (2012) LPELR 9715 (SC); CBN & ORS VS OKOJIE (2015) LPELR – 24740 (SC); AYIERE GODSGIFT (ALIAS ALEX) VS THE STATE (2016) LPELR – 40540 (SC). PER BADA, J.C.A. (para. 26) READ IN CONTEXT.

B. ILLITERATE PROTECTION LAW
3. Jurat–Are documents prepared by a legal practitioner for and on behalf of an illiterate person exempted from illiterate jurat under the law?

I agree with the submission of the Learned Counsel for the Appellants that a document prepared by a Legal Practitioner does not need to have an illiterate jurat before a Court enforces it. In fact, documents or letters prepared by Legal Practitioners are exempted from the provisions of the Illiterate Protection Law Cap 70 Laws of Bendel State of Nigeria applicable in Edo State. Section 5 of the above mentioned law which puts the matter beyond dispute provides thus:- “The law shall not apply to the writing of any letter or other document written in the course of his business or at the direction of any person admitted to practice and practicing as a Legal Practitioner in a High Court or the Supreme Court.” In UNION BANK OF NIGERIA PLC VS IDRISU (Supra) Page 121 – 122, it was held thus:- “However, Section 4 says that the Illiterate Protection Law shall not apply where a letter or document is written in the course of his business by or at the direction of any person practicing as a Legal Practitioner. Both briefs in this case agree that the firm of D.A. Akintoye & Co of llorin is a firm of solicitors though one says that 1st Defendant is the client of the firm of solicitors while the other says that the Plaintiff is the client. They need not quarrel over that. The provision of Section 4 is clear. Once a letter or document is written by or at the direction of a person admitted to practice as a Legal Practitioner, the Illiterates Protection Law is inapplicable whoever may have instructed the solicitor or his employee.” Consequent upon the foregoing, it is my view that Exhibit “B” enjoys the presumption of regularity ascribed to documents prepared for illiterates by Legal Practitioners. PER BADA, J.C.A. (para. 46-49) READ IN CONTEXT.

C. SUCCESSION
4. Nuncupative Will–Nature of; and enforceability under customary law

It is also my view that the deceased’s distribution recorded in Exhibit “A” is enforceable as inter vivos gift to the beneficiaries of Nuncupative Will which is recognized under customary Law. This view is fortified by the views of a Leading Authority on Wills in Nigeria, Dr. Kole Abayomi SAN who in his book “Wills: Law and Practice” made the following comment on page 1 thereof:-


“In contradistinction to a statutory will, a Nuncupative Will is oral and takes effect under customary law. It is the oral directives of someone made in anticipation of death before credible witnesses. Such directives are usually enforced with the consent of the testator’s family. Although a Nuncupative Will is made in anticipation of death, the person making it need not be on his death bed when making it. It can be made either in good or in bad health.” PER BADA, J.C.A. (para. 39) READ IN CONTEXT.

D. WORDS AND PHRASES
5. Meaning of “Miscarriage of Justice”

In GBADAMOSI VS DAIRO (2007) LPELR 1315 (SC), miscarriage of justice was defined as decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. The burden of proof is on the party alleging that justice has been miscarried. PER BADA, J.C.A. (para. 38) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY BADA, J.C.A.


  1. This is an appeal against the Judgment of High Court of Justice, Edo State of Nigeria in Suit No–B/579/99: Between – HOWARD EGHOSA UWAGBOE & ANOR AND MRS EHIMWENMA ERIYO & ANOR delivered on the 5th day of November, 2003.
  2. The facts of the case are that the Appellants commenced an action at the Lower Court and sought for the following reliefs:-(a) A Declaration that the inter vivos gifts and distribution of her house and premises known as and situate at No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City by the late Madam Aimikpomoyakor Obazuaye Osagiede on the 22nd day of March 1998 is valid and subsisting.(b) A Declaration that the said house and premises known as No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City no longer formed a part of late Madam Aimikpomoyakor Obazuaye Osagiede’s real estate on the date of her death on the 21st day of August 1998.
  3. (c) A Declaration that any purported sharing of the said house at No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City to the 1st Defendant or to any other person by the 2nd Defendant or any other person is null, void and of no effect.(d) An Order directing the Defendants to account for all monies collected from the property at No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City from 21st day of August 1998 to the date of Judgment in this suit.
  4. (e) The sum of (N500,000) Five Hundred Thousand Naira being general damages against the Defendants for their unlawful and illegal interference with the Plaintiff’s rights and interests vested in them before 21st day of August 1998 by virtue of the said inter vivos gift.(f) Perpetual injunction restraining the Defendants, their servants, agents and privies from laying further claim to the said property or doing anything inconsistent with the Plaintiff’s said rights to the said property at No. 12, Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City.
  5. Pleadings were duly exchanged between the parties, and the case proceeded to trial. At the close of the case for the Plaintiffs, the defence failed to defend the suit. The Counsel for the Plaintiffs/Appellants addressed the Court.
  6. In a considered Judgment, the Learned Trial Judge dismissed the Plaintiffs/Appellants’ claims.
  7. The Appellants, who are dissatisfied with the Judgment of the Lower Court, appealed to this Court.
  8. The Learned Counsel for the Appellants formulated two issues for the determination of this appeal. The issues are reproduced as follows:-(1) Whether or not the trial Court was right when it dismissed the Appellant’s claim that was uncontroverted and uncontradicted.(2) Was the trial Court right when it held that Exhibit B has no probative value simply because it has no illiterate jurat?
  9. On the 1 th day of April 2017, when this appeal was heard, there was evidence i.e. affidavit of service that the Counsel for the 1st and 2nd Respondents was served with hearing notice on 30/3/2017.
  10. The Learned Counsel for the Appellants stated that the appeal is against the Judgment of Edo State High Court delivered on 5/11/2003.
  11. The Notice of Appeal was filed on 4/2/2004 while the Record of Appeal was compiled and transmitted to this Court in December, 2005.
  12. The Appellants’ brief of argument was filed on 14/6/2006 pursuant to an Order of Court made on 24/5/06.
  13. The Learned Counsel for the Appellants adopted and relied on the said brief as his argument in urging that this appeal be allowed.
  14. It would be recalled that this Court on 14/11/2014 made an Order that this appeal be heard based on the Appellants’ brief of argument alone, since the Respondents failed, refused and neglected to file the Respondents’ brief of argument.
  15. ISSUES FOR THE DETERMINATION OF THE APPEAL

    ISSUE NO. 1

  16. Whether or not the trial Court was right when it dismissed the Appellants’ claim that was uncontroverted and uncontradicted.
  17. The Learned Counsel for the Appellants submitted that where a Plaintiff adduces evidence, which established his claim against the Defendants, and that evidence is not controverted or contradicted, the Plaintiff is entitled to Judgment. He relied on the following cases:– NWABUOKU VS OTTIH (1961) All NLR (Reprint Edition) Page 507;
    – KOSILE VS FOLARIN (1989) 3 NWLR Part 107 Page 1 at Page 12 Paragraphs C – D.
  18. It was also submitted on behalf of the Appellants that the trial Judge erred in law when she refused to enter Judgment for the Appellants based on the unchallenged and uncontradicted evidence.
  19. Learned Counsel also referred to Exhibit “A”. He stated that the Lower Court declined to enforce the wishes of the deceased in Exhibit “A” because the lawyers i.e. technocrats who had the custody of Exhibit “A” (i.e. the tape) at one point or the other were not called as witnesses.
  20. He then submitted that the technocrats were not material witnesses and that their testimony would not have affected the outcome of the suit.
  21. He referred to the following cases:– OBIANWUNA OGBUNYIYA & ORS VS OBI OKUDO & ORS (1979) All NLR (Reprint Edition) Page 105 at 112;- OLUJINLE VS ADEAGBO (1988) 2 NWLR Part 75 Page 238.
  22. Learned Counsel urged that this issue be resolved in favour of the Appellants.
  23. The Learned Trial Judge dismissed the Appellants’ case at the Lower Court on the ground that the Legal Practitioners i.e. the technocrats who had the custody of Exhibits “A” and “B” at one point or the other were not called as witnesses and also that Exhibit “B” has no illiterate jurat.
  24. It is on record that at the trial the 1st Appellant testified in proof of the Appellants’ claim set out earlier in this Judgment and tendered Exhibits “A” and “B” respectively. Exhibit “A” is the video cassette recording of the inter vivos distribution of Madam Aimikpomoyakor Obazuaye’s estate i.e. the deceased, whilst Exhibit “B” is the letter addressed by the deceased to her maternal, paternal and marital families.
  25. The Appellants called one witness i.e. Billy Obazuaye who is the head of the Bazuaye family to which the deceased belong.
  26. The Respondents led no evidence in defence of the claim.
  27. The law is settled that where evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it. See the following cases:– ISAAC OMOREGBE VS DANIEL LAWANI (1980) 3 – 4 SC Page 108 at 117;- ODULAJA VS HADAD (1973) 11 SC Page 35;

    – NIGERIAN MARITIME SERVICES LTD VS ALHAJI AFOLABI 1978 2 SC Page 79 at 81;

    – AMERICAN CYNAMID CO. VS VITALITY PHARM LTD (1991) 2 NWLR Part 7 Page 15;

    – GOVERNOR OF ZAMFARA STATE & ORS VS ALHAJI SULEIMAN & ORS (2012) LPELR 9715 (SC);

    – CBN & ORS VS OKOJIE (2015) LPELR – 24740 (SC);

    – AYIERE GODSGIFT (ALIAS ALEX) VS THE STATE (2016) LPELR – 40540 (SC).(back to top?)

  28. In this appeal under consideration, the Learned Trial Judge did not consider that the Appellant’s evidence was uncontradicted. The evidence of the Appellants was not rebutted by the Respondents who did not go into the witness box to give evidence. The evidence of the Appellants and their only witness stands uncontradicted. The Appellants have given evidence in terms of their claim before the Lower Court and they are entitled to Judgment.
  29. At the trial, there was evidence that Exhibit “A” the video recording of the deceased’s distribution of her property was replayed before the Lower Court and the transcript of what the deceased said in the tape to the hearing of the Court.
  30. The excerpt of the transcript is as follows:-“Court:- The video recording is played.Plaintiff:- I see the deceased in the video recording sitting with the members of her maternal and paternal relations. I see Ogieyan to her left and Chief Imariagbe to her right. Md. Eromwen.
  31. Court: I note that the deceased spoke in Edo Language. Lawrence Uhunamure – clerical officer High Court Benin City interpretes from Edo Language to English Language what the deceased says in the video recording. Interpreter states what deceased says in Exhibit A. My name is Aimiekpomoyakor Osagiede. I don’t have a husband. I was born around the time of the reign of Oba Eweka. I married first during the eclipse of the sun. Nothing significant happened since then when my parents died I performed their burial rights. May God not let me die an unnatural death. We were three children born by my mother. Two females and a male but the male child died. I was born in Iguahana Village. I was the senior of my father’s three children and the male amongst us could not perform my father’s burial rites because he said he had not built a house and he had no money. When my late brother said we should worship our ancestors I told him we had not buried our late father and so we could not worship him. After this his stomach was swollen and he died. She said she told the children they could not bury their late father at Uselu because he did not build a house there but they should take him to Ukpedun where he was buried. I then decided to bury my father after my brother died. The person sitting to my right hand side is my cousin as his mother is the one senior to my mother. His father’s name is Ekhoe Eguakun. He is our senior in the family. The one to the left is Imariagbe, his mother and my father are of the same parents. The reason I called this meeting is, this is the second time there would be an activity in this course with full attendance of both maternal and paternal families. I have two children in two different directions. One does not want me to suffer and takes every care of me and this one who does die and leave them in the dark (sic). It is not as if her husband has no house of his own but it is better that she has something to show that she inherited something from her mother. I do not want a situation where there would be a controversy over my estate when I die. Court: At this stage, Emmanuel Osa Asemota Higher Registrar Court takes over the interpretation of the video recording from Edo Language to English Language. REPLAY OF RECORDING IN EXHIBIT ‘A’ continues.
  32. “I called this meeting to share my property the way I want. Although both have properties it would be better if one says this is what I got from my mother. Right now I give the first room to the left of the house to Igiogbe. The other room to the left I give to Ehimwenma. The other room containing my juju or shrines I give to Imuwahen. The remaining rooms to the right I give to the children from Uzebu. Among the two rooms in front of the house, I give one room to Osagbewonrue and the other to Osasuyi. I give the room where my mother was buried to Aghafekokhian. The other two rooms to the right of the room where my mother was buried I give to Uzebu my eldest son. This is how I share my property. I want my first son Uzebu and others from his side to perform my burial rites when I die as they have been the one catering for me. Uzebu is my first son, if the others want to join him to perform my burial rites when I die they can. I put a curse that whosoever changes what I have shared, that darkness would befall the person.”
  33. Plaintiff continues:- My nickname is Uzebu and the deceased called me by that name in Exhibit ‘A’. That nickname of mine is my younger brother. My mother 2nd Plaintiff is also called Aghafekokhian by the deceased Osagbemwonrue is one of my younger sisters. Imuwahen is the eldest daughter of the 1st Defendant, Ehimwenma is the 1st Defendant. Igiogbe is a son of Ehimwenma 1st Defendant.”
  34. It must not be forgotten that the purpose of making a will is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the person to whom their property could be given to or those to succeed them. See – IDEHEN VS ID HEN (1991) 6 NWLR Part 198 page 382.
  35. The Learned Trial Judge after listening to Exhibit “A” declined to enforce the wishes of the deceased as embodied in Exhibit “A” i.e. the video cassette on the ground that the technocrats (Lawyers) who had custody of the tape at one point or the other were not called as witnesses.
  36. I am of the view that the said technocrats are not material witnesses and their testimony would not have affected the outcome of the suit.
  37. The issue of proper custody of documents has been settled long ago in the case of:- OBIANWUNA OGBUNYIYA & ORS VS OBI OKUDO & ORS (1979) All NLR (Reprint Edition) Page 105 at 112, where the Supreme Court per Idigbe JSC held among others as follows:-



    “What after all, is meant by expression “proper custody” of a document? It means no more than “its deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found”, and “proof of production from proper custody is required not as a ground for reading the document”…“but to afford the Judge reasonable assurance of it as being what it purports to be.” See – Phipson Evidence 12th Edition Article 1762, Page 731.”(back to top?)

  38. Furthermore on this issue, I am of the view that the trial Court had a duty to evaluate the evidence led before it. Exhibit “A” being an electronic recording of the deceased’s wishes, there was the assurance of it being what it purports to be. Therefore, the decision of the Learned Trial Judge not to act on it solely because the persons who had custody of it were not called, in my view occasioned a miscarriage of justice to the Appellants.
  39. In GBADAMOSI VS DAIRO (2007) LPELR 1315 (SC), miscarriage of justice was defined as decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. The burden of proof is on the party alleging that justice has been miscarried.(back to top?)
  40. It is also my view that the deceased’s distribution recorded in Exhibit “A” is enforceable as inter vivos gift to the beneficiaries of Nuncupative Will which is recognized under customary Law. This view is fortified by the views of a Leading Authority on Wills in Nigeria, Dr. Kole Abayomi SAN who in his book “Wills: Law and Practice” made the following comment on page 1 thereof:-
    “In contradistinction to a statutory will, a Nuncupative Will is oral and takes effect under customary law. It is the oral directives of someone made in anticipation of death before credible witnesses. Such directives are usually enforced with the consent of the testator’s family. Although a Nuncupative Will is made in anticipation of death, the person making it need not be on his death bed when making it. It can be made either in good or in bad health.”(back to top?)

  41. Finally on this issue, in view of the foregoing, I am of the view that the failure of the trial Judge to evaluate the unchallenged and uncontradicted evidence before her has led to a failure of justice in this case.
  42. This Issue No. 1 is therefore resolved in favour of the Appellants and against the Respondents.
  43. ISSUE NO. 2

  44. “Was the trial Court right when it held that Exhibit ”B” had no probative value simply because it had no illiterate jurat?”
  45. The Learned Counsel for the Appellants submitted that a document prepared by a Legal Practitioner does not need to have an illiterate jurat before a Court enforces it. He went further that documents or letters prepared by Legal Practitioners are exempted from the provisions of the Illiterate Protection Law Cap 70 Laws of Bendel State of Nigeria applicable in Edo State. He relied on the case of UNION BANK OF NIGERIA PLC VS IDRISU (1999) 7 NWLR Part 609 Page 105 at 121 –122.
  46. He therefore urged this Court to overrule the decision of the Learned Trial Judge and resolve Issue No. 2 in favour of the Appellants.
  47. Exhibit “B” in the case before the Lower Court is the letter addressed by the deceased to her maternal, paternal and marital families. The letter was written for the deceased by a Legal Practitioner.
  48. I agree with the submission of the Learned Counsel for the Appellants that a document prepared by a Legal Practitioner does not need to have an illiterate jurat before a Court enforces it. In fact, documents or letters prepared by Legal Practitioners are exempted from the provisions of the Illiterate Protection Law Cap 70 Laws of Bendel State of Nigeria applicable in Edo State.

  49. Section 5 of the above mentioned law which puts the matter beyond dispute provides thus:-
    “The law shall not apply to the writing of any letter or other document written in the course of his business or at the direction of any person admitted to practice and practicing as a Legal Practitioner in a High Court or the Supreme Court.” In UNION BANK OF NIGERIA PLC VS IDRISU (Supra) Page 121 – 122, it was held thus:-

  50. “However, Section 4 says that the Illiterate Protection Law shall not apply where a letter or document is written in the course of his business by or at the direction of any person practicing as a Legal Practitioner. Both briefs in this case agree that the firm of D.A. Akintoye & Co of llorin is a firm of solicitors though one says that 1st Defendant is the client of the firm of solicitors while the other says that the Plaintiff is the client. They need not quarrel over that. The provision of Section 4 is clear. Once a letter or document is written by or at the direction of a person admitted to practice as a Legal Practitioner, the Illiterates Protection Law is inapplicable whoever may have instructed the solicitor or his employee.”
  51. Consequent upon the foregoing, it is my view that Exhibit “B” enjoys the presumption of regularity ascribed to documents prepared for illiterates by Legal Practitioners.(back to top?)
  52. The Exhibit reaffirms the distribution by the deceased of her property recorded in Exhibit “A”.
  53. This Issue No. 2 is hereby resolved in favour of the Appellants and against the Respondents.
  54. In the result, with the resolution of the two issues in this appeal in favour of the Appellants, it is my view that the appeal is meritorious and it is allowed.
  55. The Judgment of the Lower Court in Suit No. B/579/99 – Between – HOWARD EGHOSA UWAGBOE & ANOR AND MRS EHIMWENMA & ANOR delivered on the 5th day of November 2003 is hereby set aside.
  56. In its place, Judgment is hereby entered in favour of the Appellants against the Respondents in the following terms:-(a) A Declaration is hereby made that the inter vivos gift and distribution of her house and premises known as and situate at No. 12 Otasowie Drive of St Saviour, Off Sakponba Road, Benin City by the late Madam Aimikpomoyakor Obazuaye Osagiede on the 22nd day of March 1998 is valid and subsisting.
  57. (b) A Declaration is hereby made that the said house and premises as No. 12 Otasowie Drive, OFF St. Saviour Road, Off Sakponba Road, Benin City no longer formed a part of late Madam Aimikpomoyakor Obazuaye Osagiede’s Real Estate on the date of her death on the 21st day of August 1998.
  58. (c) A Declaration is hereby made that any purported sharing of the said house at No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City to the 1st Defendant or to any other person by the 2nd Defendant or any other person is null, void and of no effect.

  59. (d) An Order is hereby made directing the Defendants to account for all monies collected from the property at No. 12 Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City from 21st day of August 1998 to the date of Judgment in this suit.
  60. (e) There shall be (N200,000.00) two hundred thousand Naira general damages against the Defendants/ Respondents for their unlawful and illegal interference with the Plaintiffs/Appellants’ rights and interests vested in them before 21st day of August, 1998 by virtue of the said inter vivos gift.

  61. (f) An Order of Perpetual Injunction is hereby made restraining the Defendants/Respondents, their servants, agents and privies from laying further claim to the said property or doing anything inconsistent with the Plaintiffs/ Appellants said rights to the said property at No. 12, Otasowie Drive, Off St. Saviour Road, Off Sakponba Road, Benin City.
  62. The Appellants are entitled to costs which is fixed at (N100,000.00) one hundred thousand Naira against the Respondents.
  63. Appeal allowed.
  64.  
    ADUMEIN, J.C.A.:

  65. I had a preview of the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with the reasons given by my learned brother for allowing this appeal.
  66. I adopt the leading judgment as mine and I also allow his appeal.
  67. I abide by all the orders made by my learned brother, including the order as to costs.
  68.  
    ONIYANGI, J.C.A.:

  69. I have read in draft before now the lead judgment of my learned brother, JIMI OLUKAYODE BADA, JCA, in this appeal.
  70. I agree with his reasoning and conclusion. I do not have any other thing to add than to say that the appeal is meritorious and should be allowed.
  71. Accordingly, I allow the appeal and also set aside the judgment of the Lower Court in Suit No.B/579/99 delivered on 5th day of November 2003.
  72. In addition, I enter judgment in favour of the Appellant and against the Respondent in the terms and as contained in the lead judgment of my learned brother and also abide by the order for cost as assessed therein.