Gregory Chidi Ojukwu V. J.S.O. Nnoruka (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The respondent sued the appellant at the High Court of Anambra State in Onitsha Judicial Division claiming N10,000,000 (Ten Million Naira) as damages for slander. At the conclusion of the hearing the learned trial Judge, Olike, J., found for the respondent and awarded him N1.2 Million as damages and N10,000 (Ten Thousand Naira) as costs. Against that judgment, the appellant has appealed to this court. The appellant has also filed his brief of argument and therein formulated three issues for determination thus:
“1. Did the Defendant receive a fair hearing in all the circumstances of this case in accordance with section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria and the old principle of audi alteram partem (Ground 1 of the Original grounds of appeal at p.28 of the Records).
2. Did the trial Judge comply with the principles in Mogaji v. Odofin in his evaluation of the evidence before the Court All (sic) be it the evidence of P.W.1, PW2, DW1 and DW2, and did he come to the right conclusion upon the said evidence.
If not, was there a miscarriage of justice? (Ground 3 of the Original grounds of appeal at page 28 of the records and grounds 4 – 6 of the additional grounds of appeal at pp 38-40).
3. Was the award of N1.2m general damages and costs of N10,000.00 a reasonable award (Ground 2 of the original grounds of appeal at p.28 of the records).”

Arguing his 1st issue, learned counsel for the appellant contends that his client did not receive a fair hearing. He refers to a number of decided cases on fair hearing viz:
“1. Folbod Invest Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt.478) 344 at 357
2. Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231 at 246.
3. Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 653.
4. Obera v. Okpe (1996) 9 NWLR (Pt.473) 401 at 439.”
Counsel submits that the facts of the cased o not show that the appellant was not serious in defending the case. He argues that the statement of the learned trial Judge that he was not impressed by the medical certificates sent to the court by the appellant was unfortunate in that the Judge did not state why he was not impressed by the certificates. Learned counsel made a veiled and subtle charge of bias against the Judge. He concedes that justice delayed is justice denied but says that the courts ought to lean against hasty trials and judgments.

On appellant’s issue No.2, counsel argues that the learned trial Judge did not properly evaluate the evidence before him. He refers to Sol Fond Ltd. v. Elerewe (1996) 8 NWLR (Pt.465) 245 at 253. He describes P.W.2 as a tainted witness who was merely out to protect the respondent. He refers to Alani v. State ( 1993) 7 NWLR (Pt.303) 112 at 123, 126 and 127. Counsel also referred to a number of cases on evaluation of evidence viz:
I. Akpan v. Otong (1996) 10 NWLR (Pt.476) 108 at 124 and 131
2. Whyte v. Jack (1996) 2 NWLR (Pt.431) 407 at 441 – 444
3. Okereke v. Ejiofor(1996) 3 NWLR (Pt.434) 90 at 107 – 108
4. Hill Station Hotel Ltd. v. Adeyi (1996) 4 NWLR (Pt.442) 294 at 311
The 3rd and last issue of the appellant is on the quantum of damages and costs awarded by the trial court. Learned counsel rightly stated the law on the attitude of the appellate court towards damages and costs when he said that an appellate court will not interfere with the award of damages made by the trial court unless the trial court acted upon some wrong principles of law in making the award or the amount awarded was so extravagant or so small as to make it an entirely erroneous estimate of damages. He refers to Incar (Nig.) Plc v. Uralo Cen. Ent. Ltd. (1998) 13 NWLR (Pt.582) 346 at 363 – 5. He submits that the award was based on:
(i) Wrong principles of law
(ii) Poor evaluation of evidence
(iii) Punitive in nature whereas circumstances are such as to obviate any such punitive damages
(iv) The damages and costs did not flow from the facts of the case.
Counsel refers to Ugo v. Okafor (1996) 3 NWLR (Pt.438) 542 at 569 on damages in libel cases. It is submitted that there is no nexus between the ostracism and the letters complained of.

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On being served with the respondent’s brief, the appellant filed a reply brief in which it is contended that the medical certificates were shown to the court during the hearing of the case. Counsel concedes that although the medical certificates were not tendered as exhibits in court, the court should nevertheless look at them as they form part of the record of the court. He referred to Babatunde v. Olatunji (1994) 4 NWLR (Pt.339) 488; Aghahomoro v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 182. The rest of the submissions of counsel in the reply brief is largely a repetition of the submissions he had made in his brief.
The respondent also filed a brief in which he formulated three issues for determination viz.
“a. Whether a party (such as the appellant in the instant case) who had been given ample opportunity to present his case before the trial court but who chose to rely on pleadings and evidence given by witnesses called on his behalf and neglected to appear and testify in his own behalf can seek to affect the judgment of the court with the virus of non-compliance with the constitutional dictate of fair hearing.
b. Whether the plea of justification is available to a defendant when the defamatory words are false in all material particulars.
c. The Respondent accepts the issues for determination numbered as 2 and 3 in the Appellants Brief of Argument.”
Arguing his 1st issue, learned counsel for the respondent submits that the principle of fair hearing is entrenched in Section 33(1) of the 1979 Constitution of Nigeria and has been pronounced upon by our courts – see Nwokoro v. Onuma (1990) 3 NWLR(Pt.136) 22 at 31; Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231 at 248.

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It is however submitted that in the peculiar circumstances of this case the important point is whether the trial court afforded the appellant the opportunity to present his case before the Court. Counsel traced the history of the case which shows that the appellant was consistently absent from the court to continue his case. Counsel submits that the lower court was right in holding that the medical certificates were irrelevant to the issue before the court and that the Judge was not impressed by them. He submits that a ruling was given by the court on the medical certificates on 23/5/97 but there was no appeal against the ruling. It is wrong to re-open the issues relating to the medical certificates in this appeal as it is no longer a life issue. Counsel refers to:
1. Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417.
2. Oluma v. Onyuna (1996) 4 NWLR (Pt.443) 449.
3. Okudo v. Inspector-General of Police & Ors. (1998) 1 NWLR (Pt.533) 335 at 341.

It is further submitted that a party can waive his right to fair hearing. Counsel refers to Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292. See also Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (Pt.319) 143 at 159; Ajaokuta Steel Co. Ltd. v. O. O. Biosah & Co. Nig. Ltd. (1997) 11 NWLR (Pt.527) 145 at 157.

On his 2nd issue, it is submitted that the lower court properly considered and evaluated the evidence in support of the defence of justification put up by the respondent and concluded by disbelieving the appellant’s story that the respondent uttered the words contained in the defamatory letters. Counsel submits that such a finding shall not be disturbed by an appellate court – refers to Okafor v. Idigo (1984) 1 S.C.N.L.R. 481; Ogbeche v. Onochie (1988) 1 NWLR (Pt.70) 370 at 391. See also Dumbo v. Idugboe (1983) 1 SCNLR 29 at 51; A.C.B. Ltd. v. Apugo (1995) 6 NWLR (Pt.399) 65 at 86; Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207 at 215 – 225 on proof of justification in libel.

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In his 3rd issue, the respondent adopts the appellant’s issues Nos.2 and 3. The appellant’s issue No.2 deals with evaluation of evidence which has been dealt with in this judgment. Counsel further submits that after considering the evidence of D.W.2 and D.W.1., the court preferred and believed the evidence of P.W.2 as against that of D.W.1. These were the people who were present at the scene of the incident that gave rise to the writing of the letters the contents of which are complained of in this suit.

On the issue of damages and costs awarded by the lower court, learned counsel drew the attention of the court to the persistence of the appellant in repeating the slander by the plea of justification. He refers to Gatley on Libel & Slander 7th Edition at page 507 paragraph 1240; Obakpolor v. Oyefeso (1997) 6 NWLR (Pt.508) 256 at 272. He submits that an appellate court does not ordinarily interfere with the award of damages made by the lower court – refers to Odogu v. Attorney-General of The Federation (1996) 6 NWLR (Pt.456) 508 at 523. See also
1. Ijebu-Ode Local Government & Co. Ltd. (1991) 71 NWLR (Pt. 166) 1 at 19 & 27
2. Onwu & Ors v. Nka and 7 Ors (1996) 7 NWLR (Pt.458) 1 at 19 & 27.
3. Union Bank of Nigeria Ltd. v. Odusote Book Stores Ltd. (1995) 9 NWLR (Pt.421) 558
4. Shell Petroleum Development Co. Nig. Ltd. v. Tiebo VII & Ors (1996) 4 NWLR (Pt.445) 657 at 688.
Counsel stated the factors which the court will normally take into account and submits that in the instant case the lower court was right in awarding the damages and costs it awarded. He says that no reason has been given why this court should interfere with the award made by the lower court. In court both counsel adopted their respective briefs. Mr. Amene, learned counsel for the appellant said that his client fell ill and was unable to conclude his defence. He urges the court to allow the appeal and send back the case for rehearing. Mr. Ikwueto for the respondent said that the medical certificates were not evidence before the court. He stated that the medical certificates were attached to a motion for a stay of execution after the case had been completed. Some medical certificates were shown to the court during the hearing of the case and the court gave its ruling then on 23/5/97. There is no appeal against the ruling. He urges the court to dismiss the appeal.

The first and very important issue which I shall consider in this appeal is the issue of fair hearing. This issue is raised by both sides to the appeal. The issue is-was the appellant denied fair hearing by the lower court? To answer this question, I shall review the proceedings in the lower court which led to the court closing the appellant’s case for him on 18/7/97 and adjourning for judgment on 26/9/97.

The respondent opened his case and testified on 18th day Of October, 1994. He closed his case on 12th May, 1995.

The appellant opened his case on 27th October, 1995. D.W.1 testified on that date. D.W.2 started his evidence on 2nd July, 1996 and finished on 16th July, 1996. Thereafter, the hearing of the case experienced a chequered history. The hearing was adjourned to 20/9/96 and 18/10/96 for a continuation of hearing. On 20/9/96 the defendant amended his Statement of Defence. On 18/10/96 being a date to which the case was adjourned, Mr. Amene for the appellant complained that he could not see the D.W.2 he was leading in evidence. He also complained that he could not see his client since the last adjournment, see page 88 of the record lines 15 – 25. The case was adjourned to 15/11/96 and 3/12/96 for continuation of hearing. For reasons not shown on the record, the case was not resumed until 23/5/97. On that date, Mr. Amene for the appellant applied for another adjournment alleging that his client was sick. He sent a medical report. Counsel stated that he has written letters to his client on his absence from court – see page 88 Lines 41 – Page 89 line 11. Between December 1996 and April 1997, the appellant had sent three medical certificates alleging dental problem or fever. The respondent’s counsel filed a motion to compel the appellant to close his case. Despite the fact that the court held that the appellant had not shown any seriousness in prosecuting his defence and that the court was not impressed by the medical certificates, it nonetheless granted the appellant another chance (“the last chance”) “to either continue with his defence or deemed to have no further defence and the case closed for address and judgment.” The court adjourned the case to 11/7/97 and 18/7/97 for continuation of hearing. On 18/7/97 Mr. Amene, learned counsel for the appellant was absent. The appellant was also absent. The court thereupon adjourned the case for judgment and remarked that it would “embody the dilatory and tardy approach of the defendant (appellant) to his defence in the judgment which is fixed for 26/9/97. On 26/9/97, the judgment of court was delivered. Mr. S.C. Salonwu represented the appellant.

It is on the above facts that the appellant has come to this court complaining of denial of fair hearing. I must start by commending the trial Judge for his patience and show of maturity in this matter. What is fair hearing? What is the import of fair hearing? Fair hearing is such an important element in the administration of justice that it had to be entrenched in Section 33(1) of the 1979 Constitution of this country which was in vogue at the time this matter was dealt with in the lower court. It provides:
“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
(Italics supplied)
From the provision of the Constitution which is the Supreme law of the land one thing is clear viz:-
The entitlement of fair hearing must be within a reasonable time. Fair hearing is not an entitlement by which a litigant can hold a court to ransom. Fair hearing is not a weapon which can be used to delay justice indefinitely. So well has it been said in our judicial system that ‘justice delayed is justice denied’. Fair hearing cannot be used to delay justice and thereby deny justice to the other party. An important element of fair hearing is the principle of audi alteram partem, meaning hear the other side. Suppose the other side does not want to be heard or behaves in such a way as to ridicule the principle, no court can compel him to be heard. The principle of fair hearing or audi alteram partem simply means that the other party must be given the opportunity of being heard. If he throws away the opportunity, it does not lie in his mouth to complain that he has not been given a fair hearing. See the case of Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (supra).
As the courts propagate the principle of audi alteram partem enshrined in the principle of fair hearing it must also be remembered that there is also a principle as old and as important as audi alteram i.e. the principle of ut sit fine litium interest rei publicae – it is in the interest of the public that a litigation must come to an end.

Having regard to the principles I have enunciated above and the facts I outlined above can the appellant in this appeal rightly and justifiably complain of denial of fair hearing? I think not. For a period of almost two years – from the date the appellant started giving evidence in 1995 to the date of judgment in 1997 the appellant was given several opportunities to put across his defence. After two witnesses he stopped attending court hiding under one type of medical certificate or another. His counsel occasionally complained that he did not see his client or that he lost touch with him. That was when his counsel did not absent himself from court. Despite the appellant’s excuses, the learned trial Judge adjourned the case until it seemed to have come to a stage when the ends of justice was being sacrificed on the altar of the appellant’s delay tactics. It must be realised that fair hearing under the existing Constitution of the land is fair hearing “within a reasonable time”.

If after almost two years the appellant could not adduce further evidence in support of his defence, to wait further for him would not be fair hearing to the respondent.

Let me say a word on the medical certificates on which the appellant would seem to have heaped so much argument. Let it be known that the courts are not bound by a medical certificate. A medical certificate presented to a court is only persuasive. The court is entitled to act on it or to reject it depending on the circumstances of each case. A medical certificate presented in December 1996 says the appellant had dental problem in December 1996. He was able to go to the dentistry to be attended to and to obtain the certificate but was not able to go to court. In February 1997 the appellant sent another medical report stating that he was suffering from “multiple vesicles”. I do not know what multiple vesicles is. I did not read medicine. The medical certificate excused the appellant from duty for one month. This was February 1997. In April 1997, two months later, he sent yet another medical certificate complaining of cough and fever. I know what cough and fever are because I have had them. I attended court when I had them. The appellant was however an out patient so he could go in and out of the hospital. Why could he not go in and out of the court? He could, at least, have presented himself in court to enable the court assess whether he could testify or not. NO. The court should be stopped from carrying on its business by medical certificates! The learned trial Judge was right in saying that he was not impressed by the medical certificates. I, too, am not impressed. The appellant complained in his brief that the Judge did not give any reason why he said that he was not impressed by the medical certificates. He need not give any reason. The appellant did not give any reason why an out patient with cough and fever could not go to court. There is no appeal against the ruling of 23/5/97 nor is there any ground in this appeal challenging the ruling.

It must be realised that fair hearing means fair hearing to the defendant as much as it is fair hearing to the plaintiff. It is a fair hearing to both parties. The court must hold a balance between the contesting parties in applying the principle of fair hearing. In Josiah v. The State (1985) 1 NWLR (Pt.1) 125 at 141 the court observed that
“Justice is not a one-way traffic. It is not justice for the appellant only …”
In Ajaokuta Steel Co. Nig. Ltd. v. O. O. Biosah & Co. Nig. Ltd. (supra) at page 157 the Court of Appeal per Salami JCA said:
“However, justice or fairness is not a one-way traffic. Thus in instant case, just as the appellant is asking for justice to be done to his case, the respondent is equally entitled to its interest not being sacrificed on the altar of bending backwards over to accommodate the appellant.”
In Kaduna Textiles Ltd. v. Umar (supra) at page 159 the Court of Appeal per Achike JCA (as he then was) said:
“Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law, and for no satisfactory explanation it fails or neglects to attend the sitting of the court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties as well as the court, that a recalcitrant and defaulting party should hold the court and the other parties to ransom?
Should the business of the court be dictated by the whims and caprices of any party?
I think not. It goes without saying that Justice must be even handed, for the law is no respecter of persons.”

The Supreme Court and this Court have always deprecated applications for adjournment of the type made by the appellant in the lower court. In Akpan v. The State (1991) 3 NWLR (Pt.182) 646 the Supreme Court held that the courts should not encourage counsel who were not ready to prosecute their cases by granting adjournments as unnecessary and prolonged adjournments lead to frustration on the part of litigants and sometimes they may lead to a miscarriage of justice. In Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar Spa & Anor (1974) 1 All N.L.R. (Pt. 11) 463 at 471 – 2 the Supreme Court held that the refusal of the trial court to adjourn at the instance of plaintiffs counsel whose witnesses were nowhere to be found when called to testify, although they were seen in the court earlier, was in the interest of justice. In Yanor & Anor v. The State (1965) NMLR 337 the Supreme Court approved of the refusal of the trial court in a murder case to adjourn hearing because counsel for the accused was not in court. In Nishizawa Ltd. v. Strichand Jethwani (1984) 12 S.C. 234 at 284 – 285 the Supreme Court Per Saidu Kawu JSC had this to say:
“But justice is not a one way traffic. If it is necessary to ensure justice to a plaintiff, it is equally necessary to prevent injustice to a defendant. That is exactly the purpose for which the courts exist at all – to do justice to the parties by hearing their cases and deciding their rights on the merits. Rules of Court are made to help the courts achieve their primary objective of doing justice with despatch as justice delayed is justice denied.”
I can go on indefinately citing authorities which are against the posture taken by the appellant in the lower court in this appeal.

After a careful and most dispassionate consideration of the facts and law on fair hearing as contained in the issues formulated by both the appellant and respondent, I have no difficulty in resolving the said issue against the appellant. There was no breach of the principle of fair hearing by the lower court. If anything, the lower court bent backwards to accommodate the appellant but he persistently threw away the opportunity. He cannot justifiably complain.

The next issue I have to consider is the issue on evaluation of evidence as contained in the appellant’s and respondent’s briefs. I shall consider this issue in conjunction with the issue of justification as formulated in the respondent’s brief. In a case of defamation such as this – be it libel or slander – where the defendant sets up the defence of justification, the probative burden on the plaintiff is lessened. A plea of justification implies:
(i) An admission that the matter complained of was published by the defendant;
(ii) That the publication was true.
The onus is on the defendant to prove the truth of his publication. If the publication is true a defendant cannot be mauled in damages for publishing what is true. Damages in defamation can only be inflicted on a defendant if he published a false matter. This is why in cases of defamation the pleading must allege that the defendant “falsely and maliciously published of and concerning the plaintiff…”
If the publication is false, law imputes malice. The question now is – has the appellant justified his publication? In other words, has he proved that the words he attributed to the respondent as having been said by him were in fact said by him. A lot of irrelevant materials were dragged into this case and they lend to becloud the real issue before the court. The real issue before the court was a case of slander. The slanderous words were alleged to have been uttered by the respondent at a meeting at Awka-Etiti on the 16th March, 1991. I shall return later to the incident at the meeting – an incident which all the parties would seem to have lost sight of. In paragraph 3, 11, 12, 13, 15 and 17 of the amended Statement of Defence the appellant pleaded justification of the slander in very clear words. In paragraph 15 the appellant pleaded in part that at the said meeting of the 16th March, 1991 the respondent (plaintiff) threatened the defendant with the words.
“I will destroy you and destroy your business.”
The plaintiff and defendant nearly ended up in fist blows. In paragraph 17 of the amended Statement of Defence the appellant pleaded as follows:
“Defendant further avers (sic) that the word complained of or set out in paragraph 4 of the Statement of Claim were true in substance and in fact.”
He went on and gave particulars of his justification of the slander. What is the evidence of justification on this matter which the lower court would consider? D.W.1 at page 75 of the record testified as follows:-
“He (meaning the plaintiff) threatened the defendant that he (plaintiff) would destroy him and destroy his business and that the defendant would see. He uttered these words over six times.”

Under cross examination this same witness somersaulted as follows at page 79 of the record and testified as follows:
“He (plaintiff) did not express any desire to kill or destroy the defendant’s business…
In the course of my 50 years association with the plaintiff, I have never known or heard that he killed anybody or destroyed anybody’s business.”
Continuing his evidence the witness said rather it was him (witness) that the plaintiff threatened to kill. At page 79 line 37 he said:
“The plaintiff on 13/6/91 threatened that he would kill me.”
I wonder what any court will make out of the evidence of this witness. D.W.2 said on this same point at page 83 lines 12 – 14 of the record as follows:
“The plaintiff is a prominent member of the family of Umuezeanya. I did not hear that the plaintiff threatened to kill the defendant and as a result his family wrote to the family of the plaintiff.”

The evidence of D.W.1 and 2 is meant to support the case of the defence that the respondent uttered the offensive words and that the words were “true in substance and in fact” as pleaded in paragraph 17 of the amended Statement of Defence. These two witnesses have completely destroyed the appellant’s case for whom they went to court to testify, No wonder the appellant developed cold feet and as a result started inundating the court with sick certificates! The lower court properly and painstakingly evaluated the evidence before it and came to a correct judgment. The plea of justification collapsed like a pack of cards.

It now remains to deal with the issue of quantum of damages and costs. This is raised in the appellant’s 3rd issue and adopted in the respondent’s 3rd issue. The established principle of law is that an appellate court does not ordinarily interfere with an award of damages made by the lower court except where the award is shown to be manifestly too high or manifestly too low or where the award is based on a wrong principle. The appellate court should be satisfied that the award of damages made by the lower court was based on an entirely erroneous estimate before it will interfere – See Odogu v. Attorney General of the Federation (1996) 6 NWLR (Pt.456) 508 at 523. Thus the award of damages by a lower court is like a finding of fact by such a court. An appeal court should not interfere because it (the appeal court) could have awarded more or less. It cannot substitute its own assessment of damages for that of the trial court, So long as the award by the lower court is based on correct principle, it should not be disturbed.

Now, in a case of defamation, where the defendant sets up the defence of justification but fails to prove or justify it such a course attracts aggravated damages. Again, where there is evidence that the defendant repeats the publication of the defamatory matter, it attracts aggravated damages if the plaintiff succeeds. The court also takes into account the station in life of the plaintiff and any damage which he may have suffered as a result of the publication of the defamatory matter.
In the case in hand, the respondent is a Chief in Awka-Etiti, and a part from that, he is a prominent individual in his community. He is a successful company executive. The defence put up by the appellant is one of justification which he has failed to justify or prove the truth of what he said. The appellant has remained unrepentant and showed no remorse for what he had published.

Taking all the above into consideration and having regard to the facts and circumstances of this case I do not think that N1.2 Million awarded by the lower court is excessive. I have not been given any reason or satisfactory and convincing reason why I should disturb the award. I therefore confirm the award. As regards costs this case was filed in 1991. It dragged on for six years before the judgment was given in September, 1997. A substantial part of the delay is attributable to the appellant who asked for adjournment for one reason or another. I however think that costs of N10,000 is very much on the high side. A party can hardly ever recover all he spent in prosecuting a case unless the costs are taxed. I shall therefore reduce the costs of the lower court to N5,000.00.

Before I conclude this judgment let me make one observation. This may be purely academic as it is not an issue in this appeal. My observation is as to the circumstances in which the alleged defamatory words were uttered. From the setting in the plaintiff/respondent’s case, the words would seem to have been uttered in a heat of anger. It was during an altercation between the plaintiff/respondent and Ezenwa (D.W.1). In fact, the parties nearly came to blows during the incident. In that is the setting, such words uttered in a heat of anger during an alteration are not actionable as slander. As I said, however, this point was not canvassed at the lower court nor in this court. It is therefore a non-issue in this appeal. I will say no more on it.

In the final analysis this appeal fails and is dismissed save that the costs of the lower court are however reduced w N5,000.00.  The respondent shall have the costs of this appeal which I assess and fix at N4,000.00.

Other Citations: (1999)LCN/0542(CA)