Alhaja Oladoja Sanusi V. Oreitan Ishola Ameyogun (1992)
LawGlobal-Hub Lead Judgment Report
NNAEMEKA-AGU, J.S.C
This appeal by the defendant raises in the main the vexed issue of how a Court of trial should approach the important, but sometimes underrated, problem of how to write its judgment as well as the consequences of failure to pursue the problem correctly. The facts from which this problem has arisen are straightforward. In 1985, the plaintiff, in an Ibadan High Court presided over by Sijuade, J., for himself and as a representative of Ope-Agbe family, commenced an action against (he defendant, for himself and as a representative of Ameyogun Family, claiming foul’ different reliefs, The reliefs were as follows:
“(1) A declaration that the plaintiffs are the proper persons entitled to the grant of statutory/customary right of occupancy in respect of a large piece or parcel of land, situate lying and being at Olomi area Ibadan.
(2) That the purported sale or alienation of the land or any part thereof by the Defendants are null and void and of no effect.
(3) That the Defendants, their Agents, Privies and or anybody who bought or claim through them be perpetually restrained from any further act of trespass or alienation of the land.
(4) N5,000.00 (Five Thousand Naira) damages for trespass committed on the said land by the Defendants.”
In his amended statement of claim the plaintiff relied on the traditional history of the land in dispute including how it was acquired over 200 years ago after “Gbanamu War.” He also pleaded numerous acts of possession and ownership, ancient and recent, including granting permission to one Atere, defendant’s predecessor – in – title to farm on the land on condition of payment of traditional tribute, “ishakole.” It was defendant’s refusal to pay “ishakole” and his purported sale of portions of the land in dispute that led to friction and to this suit.
The defendant in his statement of defence denied and joined issues with the plaintiff on all the material averments in the statement of claim. He also pleaded how the land in dispute was acquired and settled upon by Oni Ameyogun, a hunter from Oshogbo, and traced how it descended on him as well as numerous acts of possession and ownership which he and his predecessors- in – title exercised over the land in dispute. According to the defendant Ope-Agbe and Oni Ameyogun were friends who had their respective pieces or parcels of land, adjacent to each other. They enjoyed their respective lands in peace. It was only about three years before the action that one Lamidi lyanda from Onibuke’s family who had a quarrel with Laniyi Ameyogun instigated the plaintiff to make trouble with the defendant and to institute this action.
After trial and listening to the addresses of counsel on both sides the learned trial Judge found the plaintiff’s case proved, granted to him the declaration he sought, awarded to him N1,000.00 damages for trespass against the defendant, declared the sales of the land by the defendant null and void and made an order of injunction against him and all those claiming through him. Dissatisfied with the judgment, the defendant appealed to the Court of Appeal, Ibadan Division, upon eight grounds of appeal, out of which his counsel formulated six issues for determination. However, the Court of Appeal, coram: Kutigi, J.C.A. (as he then was), Omololu Thomas and Sulu-Gambari, J.J.C.A .. considered the appeal only on ground 7 and issue No.5. Because of the thrust of the arguments in this appeal, I shall set out ground 7 and issue No.5 in the Court of Appeal. Ground 7 reads as follows:
“The learned trial Judge erred in law and misdirected himself to have rejected the case of the Defendant before any consideration of the case for the Plaintiff thereby shifting the onus and burden of proof on the Defendant.
PARTICULARS
(1) Having rejected the case of the Defendant first and foremost the Court is duty bound to accept the case of the Plaintiff.
(2) The cases for both the Plaintiff and the Defendant have not been put on the imaginary scale for balancing.”
Issue No.5 which was formulated out of ground 7 runs thus:-
- “Whether the learned trial Judge was justified in his approach to the determination of the case presented by both sides by shifting the burden of proof on the defendant.”
After carefully considering the above issue, Omololu-Thomas, J.C.A. in his lead judgment held as follows:
“I hereby so hold since all the findings of fact of the trial Judge upon which issues are now raised are tainted with the wrongful approach in procedure, misdirection and misconceptions, it will be pointless therefore to consider the remaining issues in this appeal without reference to those findings even if one were to disagree or agree with his findings. The interest of justice will be satisfied if the appeal is allowed with the consequence that the judgment be set aside, and an order for trial de novo be made in its stead””
So, the Court of Appeal remitted the matter for hearing de novo by another Judge of the High Court.
The defendant (hereinafter to be referred to as the appellant) then appealed to this Court attacking in the main the order remitting the case for retrial. He filed five grounds of appeal out of which he formulated the following fours issues, namely:
“1. Whether the Court of Appeal was right in considering only one issue rather than all issues raised in the appeal before deciding to send the case down for a retrial de novo.
- Whether the Court of Appeal was right in holding that only Ground 7 or issue 5 is the only Ground of Appeal or issue crucial to the determination of the appeal before it.
- Whether the Court of Appeal was right in sending the case down for retrial in the circumstances of this appeal when the Plaintiff did not make out a case which entitles him to judgment on his claims when his claims ought to have been dismissed.
- Whether the Court of Appeal was right in non-suiting the Plaintiff without inviting the parties to address it on the propriety or otherwise of sending the case down for hearing de novo.”
The plaintiff (respondent) formulated two issues which were in effect a summary of the four issues framed for the appellant. In sum, the crucial questions are whether the learned trial Judge approached the vital issues of onus of proof and approach to the evidence called before him properly, and if he did not, what should the Court of Appeal have done
It is true that in delivering his judgment, the learned trial Judge after stating the claim, the respective cases of the parties and summing up the evidence called by both sides, proceeded to consider the submissions of counsel. The first of such issues to be considered was the submission of the learned counsel for the defendant (appellant) that, because of the nature of the evidence, it was not possible to make a declaration in favour of the plaintiff with respect to the area verged “red” or “green” because those areas included other lands occupied by other families. The learned trial Judge resolved this against the defendant by holding that the area in dispute was not only ascertainable in the survey plans of the parties but also was well known to both parties. It does not appear to me that this was an answer to the point made on behalf of the defendant.
Secondly, he went on to examine the case of the defendant that if he and his people were customary tenants of the plaintiff, as the latter claimed, they could not be regarded as trespassers, because such a class of tenants should hold their interest in perpetuity, subject only to forfeiture on the recognised grounds. So, as there was no claim for forfeiture, it could not be ordered nor could they be treated as trespassers. However, the learned Judge went ahead to find that as the defendant’s family, on the evidence, had erected permanent houses on the land which was granted for agricultural purposes, it was an injury to the reversion which would entitle the customary landlord to sue for trespass. He relied on Akinrinlowo v. Anwo (1959) W.R.N.L.R. 178; and Alege v. Ogundipe (1957) W.R.N.L.R. 211. He came to the conclusion that on the facts before the Court, the plaintiff was entitled to sue to protect the reversion.
Thirdly, on whether the defendant’s occupation would be protected as an occupier under section 36(2) of the Land Use Act, he held that because the land had, on the evidence before him, been laid out into plots contrary to the purpose of the customary tenancy, the defendant had lost protection under sub-section (5) of section 36.
Fourthly, he refused to consider or find on a balance of probabilities, as he was invited by learned counsel on behalf of the defendant to do, that the defendant and his people were not customary tenants of the plaintiff and his people. Without really evaluating the evidence, he held that it would be difficult to so hold because he had said Alaka, the ancestor of the defendant, was a customary tenant of the plaintiff’s family.
It may be observed that most of the above conclusions, standing by themselves, have big question marks on them. As the alleged customary tenancy of Alaka was part of the traditional history put forward by the plaintiff, based as they were on events beyond living memory, could the learned trial Judge have made a finding on it without evaluating the evidence of tradition put forward by both sides on the established principle (for which see Alade v. Awo (1975) 4 S.C. 215, p.228) to find out which of them was more probable Was the prohibition in subsection (5) of section 36 of the Land Use Act not intended to apply in futuro to prohibit laying out plots to which the Act applies into plots If this is correct, did the learned Judge properly invoke the provisions of that sub-section against the defendant on the facts of this case It was no part of defendant’s case that he and his people were customary tenants of the plaintiff and his people. It was the plaintiff who said so. Why was it necessary to assume the correctness of this part of the plaintiff’s case, to wit: that the defendant and his people were customary tenants of the plaintiff, without first approaching the question of conflicting evidence of tradition in the manner required by law
However, on the thrust of the arguments in relation to the main issue in the case, I believe that it is better that the above questions remain unanswered or utmost answered sub silentio. The main question is whether the learned trial Judge was right to have gone on straight after summing up to deal “with the main bone of contentions” of the defendant and demolish them before considering the evidence called by the plaintiff in proof of his title and other reliefs claimed by him Learned counsel for the plaintiff/respondent in his brief agreed that after the evidence what the learned trial Judge did was “first of all to demolish the case of the defendant and to accept the case of the plaintiff in preference to the case of the defendant.” It stands to reason that if for a start he demolished the case of the defendant, there was no alternative left for him except to accept the case of the plaintiff. The big question is whether he was right to have proceeded that way.
Indeed the facts of this case and the approach which the learned trial Judge made of the issues in comention remind me of what this Court said in the case of Godwin Egwuh v. Duro Ogunkehin: S.C. 529/1966 of the 28th of February, 1969, where it stated:
“We are in no doubt that on the pleadings the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly in possession of the land ………The learned trial Judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses and their conduct; but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land.”
This was also quoted with approval in Alhaji Aromire & 2 Ors. v. J.J. Awoyemi (1972) 2 S.C. 1 at pp.10 – 11. What was expected of the learned trial Judge was that he should begin by considering the plaintiff’s case and whether he had led evidence on all the material issues of fact which would, if accepted after evaluation, entitle him to succeed. To have descended on the main contentions of the defendant/respondent and demolished them before considering the plaintiff’s case is not only against established procedure. It also gave an unfair advantage to the plaintiff and resulted in unfair trial. Fair trial carries with it the necessary implication that the Court is fair to both parties to a suit. Where a Court demolished the case of the defendant before looking at the case of the plaintiff, it cannot be said to have been fair to the defendant. Omololu- Thomas, J.C.A. was therefore right when he stated in his lead judgment:
“He literally demolished the defence case first in the process, and ruled in favour of the plaintiff’s case on major issues before him as stated in the introductory part of this judgment.”
Thus he also shifted the onus of proof on the defendant. That approach could not lead to fairness and justice.
Let me emphasize that what was required at that stage was not that the Court should have first found the plaintiffs case proved in isolation. No. The question of proof did not yet arise at that stage. What this Court, per Coker, J.S.C., said in the above dicta was:
“until the plaintiff has led evidence.”
This point was again emphasized by this Court in the case of Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24. The Court explained that the proper procedure is that a trial Judge ought always to start by considering the evidence led by the plaintiff to see whether he has led evidence on all the material issues he needs to prove. No question of proof or belief of non-belief of witness arises at this stage. If he has not so led evidence, or if the evidence led by him is so patently unsatisfactory, then he has not made out what is usually referred to as a prima facie case, in which case the trial Judge does not have to consider the case of the defendant at all. This is the first stage in the Judge ‘s exercise of reaching a fair judgment. Some cases may even end at this stage. This stage is analogous to cases in which a submission of “no case to answer” can properly be upheld in a criminal case. See Victoria Aduke & Anor v. Solomon Aiyelabola (1942) 8 W.A.C.A. 43; it is a necessary stage because in most cases the onus of proof lies on the plaintiff; it is only after he has discharged this initial onus that it shifts on the defendant: Lawrence Onyekaanwu & Ors. v. Ekwubiri & Ors. (1966) 1 All N.L.R. 32,p. 35;Bafunke Johnson & Anor. v. Akinola Maja & Ors. (1951) 13 W.A.C.A. 290, p.292.
If the trial Judge scales this first hurdle, then he goes on to the next stage, to wit, evaluation of evidence. In this respect he must have to bear two factors in mind, namely: on whom the onus of proof lies and whether the particular type of evidence called requires for any special approach. In a land case such as the instant, the onus of proof usually lies on the plaintiff who must rely on the strength of his own case and not the weakness of the defence. Kodilinye v. Odu (1935) 2 W.A.C.A. 336; Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238. But this is subject to the qualification that the plaintiff can in doing so take advantage of such aspects and facts in the defence which support the plaintiff’s case; Akinola v. Oluwo (1962) 1 SCNLR 352 (1962) 1 All N.L.R. 224. Ordinarily, the Judge performs his task under this second stage by placing the evidence called by either side to the conflict on every material issue on either side of an imaginary scale and weighing them together: which ever outweighs the other in terms of probative value ought to be accepted: See on this – A.R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 91, at pp.93-96; also VincentI. Bello v. Magnus Eweka (1981) 1 S.C. 101, p.119; also Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5485 S.C. 291 , at pp.306-307. After completion of the exercise, the trial Judge shall have made his findings and, those findings, having regard to the party on whom the onus lies, will determine his ultimate verdict, which ought to be a reflection of those findings: Ojogwue & Anor. v. Nnubie & 4 Ors. (1972) 1 All N.L.R.(Pt.2) 226.
Sometimes, however, where as, in this case, parties rely not only on evidence of tradition which is conflicting but also acts of possession and ownership, the case calls for a special approach. The first function of the trial Judge at this stage is to find out which of the two conflicting cases of tradition is more probable. This is a task of primary importance because even though there are five different ways of proving title, where evidence of tradition has been adduced it is necessary to go into it first. For, evidence of tradition usually goes to the roots as to how a claimant and his predecessors-in-title first came upon the land. As Obaseki, J.S.C., put it in O.K.O Mogaji & Ors. v. Cadbury (Nig.) Ltd. ([985) 2 NWLR (Pt.7) 393, at p. 431:
” …..where the root of title is known and pleaded and not lost in antiquity and historical oblivion, the circumstance for any inference of title created by acts of ownership does not arise.”
It is only where the evidence of tradition is unconvincing or inconclusive that the matter must rest on a question of facts. Yet, quite paradoxically, the only proper approach to ascertaining which of two sets of tradition set up by parties to the suit should be accepted’ as more probable is by reference to acts within living memory. See on this: Alade v. Awo (1975) 4 S.C. 215; Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182. But this does not appear to have been the procedure adopted by the learned trial Judge in this case. Rather, he went ahead to compare the oral testimonies of witnesses called by either side, even on matters beyond living memory and, in the end, preferred those on behalf of the plaintiff. This ought not to have been so. He could only have done that with respect to matters within living memory. As for those matters beyond living memory, all he could have done was to use his findings on matters within living memory to determine which of the two conflicting versions was more probable. It must be noted that the principle, now often referred to as “the rule in Kojo v. Bonsie” (for which see Kojo II v. Bonsie & Anor. (1957) 1 W.L.R.1233, at 1226) of the need to resolve conflicting evidence of tradition in such cases not on the basis of credibility of witnesses or their demeanour, but by reference to acts within living memory, was formulated on the premises that witnesses of utmost veracity recalling and narrating events which happened in the dark backward and abysm of time may be mistaken, though not necessarily dishonest, in their recollection. In this case, as the defendants/ appellants were, as pointed out by learned counsel for the appellant, even on the case put forward by the plaintiff/respondent, in possession, the learned Judge could have used this to resolve the issue as to which version was more probable, unless he found the respondent’s case for a customary grant proved and acceptable.
From all I have said so far there can be no doubt that the Court of Appeal was right when it came to the conclusion that the learned trial Judge made a wrong approach to the whole case and to the question of onus of proof.
This brings me to a consideration of the result of such an error. The gist of the contention on behalf of the defendant/appellant is that on the quality of the respondent’s case, the Court of Appeal should have dismissed the case rather than giving him the opportunity of a second bite at the cherry.
Learned counsel on his behalf submitted that the Court of Appeal should have considered the other grounds and issues before it rather than confining itself to ground 7 and issue number 5. If it had done so, it would have seen that some parts of the oral testimonies contradicted the features shown on his plan, Exhibit A; that the boundaries of the land as shown in his plan and other evidence are at variance with the pleadings in the statement of claim; that some of plaintiff’s witnesses contradicted one another; that certain pieces of evidence tendered, and admissions made, by the plaintiff supported the case of the defendant; and that the plan, Exhibit A, showed that the plaintiff was not in exclusive possession of the land in dispute. Also, it was contended, the plaintiff did not prove any customary grant. It was, therefore, submitted that on a totality of the evidence before the Court of trial. plaintiff’s case should have been dismissed. The Court of Appeal ought to have so held rather than sending the case down for a retrial.
Learned counsel for the plaintiff/respondent agreed that the trial Judge made a wrong approach to the evidence and the question of onus of proof. Then he submitted:
“When a trial Judge appears to have accepted the evidence of the plaintiff before reviewing the evidence, then he is in breach of the principle applied in civil cases – which are decided on a balance of probability. A Court of Appeal ought to order a retrial where there has been such error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal Court to say there has been a miscarriage of justice.”
I must approach my consideration of the stances of counsel on both sides in this aspect of the appeal from the stand point that the Court of Appeal, as an appellate Court, operates on certain set principles in decided cases based on powers conferred by the Constitution and other statutes. Broadly, in law, it is for the Court of trial to hear, accredit or discredit witnesses and evaluate their evidence. It is for the appellate Court to oversee how the Court of trial has exercised its wide powers in this respect. Where the appellate Court is satisfied, as in this case, that the Court of trial has been guilty of improper use of its powers in the performance of its adjudicative functions, it must go further to ask itself whether the error was such that it could be corrected from evidence in cold print without injustice to either side. If it is, then the appellate Court can correct the error; but, if it is not, it must order a retrial. I am guided in this broad statement of the law by rationes and dicta in numerous cases, only some of which I can refer to here. In Silas Okoye & Ors. v. Chief Ogogbua Kpajie (1973) N.M.L.R. 84, this Court said at p.88:
“With respect, learned counsel for respondents must appreciate that where conflicting evidence was adduced in a Court of trial, and the learned trial Judge who heard and saw the witnesses failed to resolve the conflict, it is impossible for an appeal Court to make any findings in such a situation.”
It is noteworthy that one of the grounds upon which counsel attacked the case of the plaintiff was the contradictions of the oral testimonies of some of plaintiff’s witnesses inter se as well as contradictions between oral testimony and plaintiff’s plan, Exhibit A. It is also useful to refer to and adopt the guiding principles in such cases as stated in Lawal Buraimoh Fatoyinbo & Ors. v. Seliatu Abike Williams alias Sanni & ors. (1956) SCNLR 274; (1956) 1 F.S.C. 87 where the Federal Supreme Court stated:
‘The appeal is accordingly one on facts and the principles on which a Court of Appeal acts in such appeals are succinctly stated thus in the opinion of Lord Thankerton in Wall or Thomas v. Thomas (1).
“1 Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion in the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion;
II. The appellate Court may take the view that, without having seen or heard the witnesses,. it is not in a position to come to any satisfactory conclusion in the printed evidence;
III. The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court.”
I shall be guided by these principles in this case. Above all, the heart and soul of the appellant’s case in ground 7 and issue number 5 in the Court of Appeal, which the learned Justices of Appeal upheld, was that the learned trial Judge made a wrong approach to the evidence called by the parties in the whole case and to the important issue of onus of proof. It is true that any error as to onus of proof could automatically affect the Judges view of the evidence: at least it becomes impossible to say what his conclusion would have been if he had directed himself correctly. Similarly, where a trial Judge makes a wrong approach to the evidence called before him it becomes impossible to say what effect such a have had on the assessment and evaluation of the evidence and what the learned Judge’s conclusion would have been if he had approached the matter correctly. In either case where this Court takes the view that there is a likelihood of a miscarriage of Justice, Justice dictates that there ought to be a retrial. See on this George Onobruchere & Anor. v. Ivwromoebo Esegine & Anor. (1986) 1 NWLR (Pt.19) 799. The Court of Appeal had no alternative but to allow the appeal.
It is left for me to say a few words about the submission of learned counsel for the respondents that the Court of Appeal should have considered other issues raised before it and that if it did it would have dismissed the case instead of ordering a retrial. The short point to it is that the appellant, who raised ground 7 and issue number 5, did not raise them in the alternative but cumulatively with other grounds. If a consideration of them made it unnecessary for other issues raised by him to be considered, I do not see how he can complain. While it is true that such a course has its own risks because a Judge of utmost sincerity and optimum honesty as well as profound industry and knowledge of the law could reach a decision which could turn out to be wrong on appeal, it is equally true that where, from the nature of the issue which an appellate Court has accepted, it is inclined to order a retrial, it is advisable to say as little as possible on the merits of other facts of the case which are not relevant to the order of retrial and which may prejudice the retrial. Once an appellate Court bears these two principles in mind, it cannot go far wrong. It is a question of balancing these two considerations at all times. In the instant case, the wrong approach to the whole case as against the plaintiff and the defendant did, in appropriate metaphor, pollute the fountain of justice from source. Similarly the wrong approach to the evidence of tradition, by its very nature, made it impossible to say what conclusion the learned Judge could have reached if he had approached the manner correctly. To attempt to come to a conclusion on the point is to speculate unnecessarily. The Court of Appeal was therefore right to have limited its consideration to ground 7 and issue number 5 and to have ordered a retrial.
I am satisfied that the Court of Appeal reached the right decision and made the correct orders in this case. So the appeal fails and is dismissed with costs of N1,000.00 against the defendant/appellant.S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. which has just been delivered. I am in complete agreement with him that this appeal should be dismissed.
In the High Court, the respondent herein instituted an action against the appellant claiming as follows:-
(1) A declaration that the Plaintiffs are the proper persons entitled to the grant of statutory/customary right of occupancy in respect of a large piece or parcel of land, situate lying and being at Olomi area Ibadan.
(2) That the purported sale or alienation of the land or any part thereof by the Defendants are null and void and of no effect.
(3) That the Defendants, their Agents, Privies and or anybody who bought or claim through them be perpetually restrained from any further act of trespass or alienation of the land.
(4) N5,000.00 (Five Thousand Naira) damages for trespass committed on the said land by the Defendants.”
At the conclusion of the hearing, it was clear on the record that in evaluating the respective merit of the case of either party, the learned trial Judge first considered and rejected the defendant’s case before giving judgment in favour of the plaintiff. It was this wrong procedural approach of the learned trial Judge that was one of the issues for determination in the Court of Appeal. In allowing the defendant’s appeal after giving consideration to the complaint, Omololu- Thomas, J.C.A. in his lead judgment held as follows:
“The approach is in my humble view a clear misdirection in law which has occasioned a miscarriage of justice. I hereby so hold since all the findings of fact of the trial Judge upon which issues are now raised are tainted with the wrongful approach in procedure, misdirection and misconceptions. It will be pointless therefore to consider the remaining issues in this appeal without reference to those findings even if one were to disagree or agree with his findings. The interest of justice will be satisfied if the appeal is allowed with the consequence that the judgment be set aside and an order for trial de novo be made in its stead.” ”
The main complaint of the appellant in this appeal is against the order of the Court of Appeal remitting the case to the High Court for a retrial. Was the Court of Appeal right in making this order
Now it is settled that a Court of Appeal will not remit a case for retrial in a case on the exercise of discretion when the evidence on which such retrial is to be based is that which ought to have been adduced but was not adduced at the trial. See Enekebe v. Enekebe (1964) 1 All NLR 102. Where, however, as in this case, a trial Judge had adopted a wrong procedure in arriving at his decision, and it is impossible to say what would have been his decision had he followed the correct procedure, an order, of retrial would be proper – See George Onobruchere v. Irwromoebo Esegine & Anor. (1986) 1 NWLR (Pt.19) 799. I am of the view that in the circumstances of this case the Court of Appeal was right in making the order. I too will dismiss the appeal with N1,000.00 costs in favour of the Respondent.
SC.288/1989
