Isaac Omoregbe V Daniel Pendor Lawani (1980)

LawGlobal-Hub Judgment Report

IDIGBE, J.S.C. (Delivering the Leading Judgment)

On the conclusion of the testimony of the plaintiff (the respondent herein) and those of his two witnesses in support of his claims for a declaration of title to land, damages for trespass thereon and an order of injunction in relation to the said land, – the defendant (the appellant herein) having refrained from calling any evidence whatsoever in rebuttal – the High Court of Midwestern (now Bendel) State (Ekeruche, J.), on Tuesday, the 17th day of August, 1976, refused to consider and/or assess the evidence before it; and without any prior argument on the issue for and on behalf of the parties to these proceedings entered an order of non-suit against the respondent and, in addition, ordered that the claims be heard de novo before another Judge.

The plaintiff’s (i.e. the respondent herein) appeal to the Federal Court of Appeal (hereinafter called simply “the Court of Appeal”) was on the basis that the learned trial Judge erred in law in refusing to consider and assess the unchallenged evidence in support of his case, and that, in any event, it was no longer within his competence – he having entered a non-suit – to further order a transfer of the claims to another Judge for re-hearing. The Court of Appeal, in the main, upheld the contentions of the plaintiff, and hence the present appeal.

My Lords, for the purpose of resolving the question of law upon which this appeal will turn I need only give a brief account of the facts which gave rise to it. Following an order of the trial court of the 21st day of February, 1972, the parties to these proceedings filed and exchanged  their pleadings.

At the trial the respondent and his witnesses testified in support of the allegations in his statement of claim. The sum of the evidence in support of the plaintiff’s case is as follows: In April 1964 the plaintiff on his application was granted, by the Ebvogida plot Allotment Committee (in Benin City, Ward 43B), a building Plot (the land in dispute) measuring 300 feet by 300 feet; his witness, Egusaki Ogida (P.W. 2) testified by way of confirmation of the grant that he and one John Ogida (P.W.3) – the official messenger and “pointer” (i.e. selector of parcels of land for allocation) of the said Allotment Committee, later, on the instructions of the committee, went and identified the land in dispute to the plaintiff as being the particular parcel which had been granted to him by the said Allotment Committee.

The committee later recommended for approval of the Oba of Benin the said grant and by Exhibit (1), in these proceedings, the Oba of Benin approved the said grant on 29th July, 1964. P.W. 2 confirmed that at a  later date the defendant applied to, and obtained a grant of a parcel of building plot from, the said Committee, and that on the instructions of the said Committee he (P.W. 2) identified to the defendant the parcel of land measuring fifty feet by one hundred feet. It is entirely different from the land now in dispute. According to this witness the defendant later altered the measurements of the plot entered by the Committee in the document approving the grant to him to read five hundred feet by seven hundred feet.

Consequently, following criminal proceedings in Suit B/8c 72 which the police authorities brought against the defendant (as shown in Exhibit 6, in these proceedings), the latter was convicted for the offences of forgery and altering.

It is necessary at this stage to point out that when on the 2nd day of March, 1976, hearing began in this case, the plaintiff gave evidence-in-chief and put in evidence his deed of conveyance in respect of the land in dispute to which was attached a survey plan of the land, Exhibit (1) in these proceedings. The defendant although absent was represented by his counsel Mr. Evbuomwan who later duly cross-examined the plaintiff; further hearing in these proceedings was adjourned. When, however, hearing resumed on the 22nd June, 1976 the following endorsements appeared on the record of proceedings:

“Plaintiff present, Aghimien for him; defendant absent, Evbuowan for him.
NOTE: Mr. Evbuonwan says that at the initial stage of the hearing of this case, he indicated his client was serving prison sentence in Kirikiri prison. Says he was only able to see him on 6th June, 1976, for further instructions.

Says he has been appearing on the initial instructions his client gave him before his client started serving sentence. Says his client has instructed him to inform the court that he wants to fight the case on the merit and so seeks an adjournment sine die so that he can fight his case when he is released. In the alternative his client has instructed him to withdraw from the defence if an adjournment is not granted. Says he believes his client is serving a five year term.

Court: The request for adjournment is refused. Mr. Evbuomwan in accordance with his other instructions he says his client gave him is discharged from further appearing in the case

(Sgd.) E. A. Ekeruche
Judge…………………..”
(Underlining supplied by me)

Having refused the application for adjournment the learned trial Judge proceeded to receive further evidence in the case (i.e. further evidence from the plaintiff who on being recalled took the opportunity to put in evidence Exhibit 5, in these proceedings (i.e. a survey plan showing the land in dispute; and also the evidence of P.W. 2 and P.W. 3). Thereafter, the plaintiff closed his case and the learned trial Judge having reserved judgment non-suited the plaintiff on the 17th August, 1976, as earlier on stated and, in addition, ordered that the claims be heard de novo before another Judge.

The respondent (i.e. plaintiff) appealed to the Court of Appeal from the judgment of the learned trial Judge, and in particular he complained of the underlined portions hereunder appearing and which read:-

“……….. Ordinarily, I would have proceeded to assess the evidence and give judgment thereon but on perusing the said evidence I found that there has been some procedural irregularity at the hearing and I consider the irregularity to be such that to  proceed to give judgment in the case on the evidence of the plaintiff and his (sic) witness would not be proper. This irregularity arises from the fact that when the hearing of this case started on the 2nd March, 1976, the plaintiff gave evidence, he was cross-examined by counsel then representing the defendant and when plaintiff’s counsel was called upon to re-examine the plaintiff he indicated he had no re-examination to make. The hearing was adjourned.

The hearing was resumed on the 22nd June, 1976 and on that day learned counsel for the plaintiff put the  plaintiff back into the witness box and led the plaintiff in evidence. It was on this occasion that the plaintiff tendered the material document in support of  his case. Putting the plaintiff back into the box in this manner was clearly wrong.

If the said evidence by the plaintiff at resumed hearing is discarded, this Court cannot properly make any order granting the plaintiff any of the reliefs he seeks. Taking the said evidence at the resumed hearing into consideration along with the other evidence in the plaintiff’s case, however, the plaintiff would be entitled to the reliefs he seeks but doing so would be unfair to the defendant for the reason that it was wrong to have allowed the plaintiff to go back into the witness box when he had concluded his evidence.

As the matter now stands the only proper course open to this court in the matter is to non-suit the plaintiff and transfer the case to another Judge for hearing de novo….” (Underlining and brackets supplied by me)

Because the learned trial Judge in the foregoing passage of his judgment appears to have regarded Exhibit 5 as a “very material document” on which the success of the respondent’s case depends. I consider it desirable to make some observations on Exhibits (1) and (5) in relation to the first item of the claim (i.e. for title to the land in dispute) in respect of which judgment was entered, by the Court of Appeal, for the respondent. Now, the claim to title as expressed on both the writ and the statement of claim reads:-

“The plaintiff claims a declaration of title to that parcel of land lying and situate in Ward 43B Evbuogida Area, Benin city, and bounded by survey beacons MD 436, MD 458, MD 459, MD 460 and MD 461, the abuttals on which are coloured red and yellow in plans Nos. L.M. 104 and O.M. 3780 respectively which parcel of land was customarily granted to the plaintiff by the Oba of Benin on 29th July, 1964 and subsequently conveyed to him by a document registered as No. 40 at page 40 in volume 37 of the Lands Registry in the office at Benin City ………….”

Exhibit (1), is a deed of conveyance registered as No. 40 at page 40 in volume 37 of the Lands Registry in Benin City to which are attached (1) a document of approval of grant signed by the Oba of Benin on the 29th day of July, 1964 upon the recommendation of the Evbogida Area plot Allotment Committee of Ward 43B in Benin City and indicating that the Committee granted the parcel of land with which the document was concerned, to the plaintiff in April 1964 and, (2) a survey plan “No. LM. 104” duly countersigned by the Surveyor-General of Midwestern Nigeria and shown in the land described in the body of the deed of conveyance, the subject of the grant to the plaintiff, as verged “RED” and bounded by survey beacons Nos. MD 436, MD 458, MD 459, MD 460 and MD 461. Exhibit 5,  on the other hand, shows exactly the same area of land, which is verged RED in Exhibit (1), bounded by the same set of survey beacons save that (a) the entire area of land is therein verged “YELLOW” as clearly stated in the body of the plaintiff’s claim in both the writ and statement of claim – and, (b) that the survey plan Exhibit 5, duly countersigned by the Surveyor-General of Midwestern Nigeria is marked plan “No. OM 3780”. It, therefore, seems quite clear that a declaratory judgment of title to land in respect of the first item of the claims of the plaintiff can be tied to either Exhibit (1) or Exhibit (5) and that neither of the exhibits is – as the learned trial Judge appears, from his judgment, to have believed – a “more material document” than the other for the success of the plaintiff’s claim to title to the land in dispute.

The learned Justices of the Court of Appeal in their judgment delivered by Omoigberai Eboh, JCA., upheld the submissions on behalf of  the respondent (appellant in that court) that the learned trial Judge erred in law (1) in entering a non-suit without receiving arguments and submissions on behalf of the parties to these proceedings on the issue and, (2) in transferring the claims for hearing de novo before another Judge after he had entered a non-suit against the respondent. Thereafter, their Lordships of the Court of Appeal held:

“So on the state of the evidence led before the learned trial Judge, there was sufficient material, quite apart from the controversial Exhibit 5, upon which the learned trial Judge could have based a judgment on the issue of title (sic) to the favour of the appellant especially since there was no evidence from the respondent to the contrary of what the appellant had said ………………”
(Underlining supplied by me)

Finally, their Lordships of the Court of Appeal allowed the appeal of the respondent from the  judgment of the trial court, set aside both the orders for non-suit and transfer for hearing de novo, and (1) entered judgment for the respondent in respect of this claim for title to the land in dispute but, (2) struck out the claims for damages, for trespass and possession for reasons which I need not deal with in this judgment, there being no appeal from the order made in respect of the claims for damages for trespass and for injunction.

The three grounds of appeal filed in this court, on behalf of the appellant, and argued together read:-

(1) That the learned Justices of appeal erred in law in entering judgment in favour of the appellant having held that the learned trial Judge was in error in making an order for non-suit without first inviting counsel on both sides to argue on the propriety or otherwise of making such an order. (2). The learned Justices of appeal erred in law in failing to consider the desirability of ordering a re-trial having regard to the circumstances of the proceedings in the lower court and the fact that the respondent (i.e. appellant herein) was not given the opportunity of a fair trial or hearing when;

(a)the fact of the respondent’s position i.e. serving in Kirikiri prison was made known to the court.

(b)The High Court refused an application for adjournment by the respondent’s counsel.

(c)The statement of defence filed disclosed a good defence to the plaintiff’s (sic) cause.

(3)That the judgment is against the weight of evidence.  (Brackets supplied by me).

Now, this court has in a number of decisions observed that it is undesirable that trial courts should make orders of non-suit in respect of claims before them without first inviting and entertaining argument and submissions on the issue on behalf of parties to the proceedings (see Craig v. Craig (1976) NMLR 52; Barere Elufisoye v. Samuel Alabetutu (1968) NMLR 298 at 301); and in Mrs. D. Aigbe v. Bishop John Edokpolor (1977) 2 S.C. 1 at 15-16 this court commented as follows:-

“It would amount to wrong exercise of his unfettered discretion if he (the Judge) entered a non-suit (1) without hearing counsel on either side and (2) if on the evidence, the plaintiff was entitled to judgment”

When, therefore, a trial court wrongly exercises its discretion on the issue of non-suit in the manner stated above, the Court of Appeal will allow an appeal from the judgment involving such erroneous exercise of discretion – (see also on the same point: Clack v. Arthur Engineering Ltd. (1959) 2 QB 211 at 224 – Wilmer, LJ.).

Again this court has in many of its decisions observed that where evidence given by a  party to any proceedings was not challenged by the opposite party  who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it (See Odulaja v. Haddad (1973) 11 S.C. p. 35; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81-82; see also  the Privy Council on the Nigerian case of Adel Boshali v. Allied Commercial Exporters Ltd. (1961) All NLR 917 per Lord Guest).

My Lords, this being the substantive law on the issues raised in the first ground of appeal herein, the arguments and submissions of learned counsel for the appellant that their Lordships of the Court of Appeal (1) erred in setting aside the trial court’s order for a non-suit and, (2) in, thereafter, proceeding to assess the evidence before that court (Ekeruche, J.) and entering a declaratory judgment for title, do not bear examination.

Such being the established principles of law I now turn to apply them to the facts in these proceedings.

(1)   There is no doubt that the learned trial Judge did not invite or receive argument and submission on the issue before proceeding to enter an order of non-suit;

(2)   There is no doubt that the only evidence and, indeed, unchallenged – before him was that of the plaintiff and his witnesses. No question, therefore, arises as to the singular advantage of the trial Judge having seen and heard the witnesses testify in the trial court and consequently being in a better position to assess their credibility. In my view, their Lordships of the Court of Appeal are in just as good a position and situation as the learned trial Judge to draw inference on the evidence, albeit printed. Here, the Court of Appeal deals with facts not in controversy – there being no conflicting testimony. I have no doubt that the law allows for them to draw inferences i.e. their own independent inferences – from those uncontroverted facts – (for a comparable situation see Lord Dunedin in Dominion Trust Co. v. New York Life Insurance Co.(1919) AC 254 at 257-258. I, therefore, hold the view that in the circumstances their Lordships could, and quite rightly, in my view did, reach the conclusion that the respondent was entitled to a declaration of title to the land in dispute shown in Exhibit (1) or Exhibit (5) as described in the first item of this claim.

I will now deal with the issue of law raised on behalf of the appellant in the course of the argument and submissions in support of the second ground of appeal, and it is that the trial court erred in law in proceeding to receive further evidence from the respondent (plaintiff) on the 22nd day of June, 1976, long after he (the respondent had given evidence and had been cross-examined). This submission is on the basis – as learned counsel for the appellant put it – that in the course of hearing in civil matters (as opposed to criminal trials) the trial Judge cannot – without the prior consent of parties thereto call and/or recall a witness. Accordingly, when on the 22nd day of June, 1976, the learned trial Judge allowed counsel for the respondent to recall the plaintiff (i.e. the respondent), who had earlier (on 2nd March, 1976), given evidence and had already been duly cross-examined, to testify further and put in evidence “material documentary evidence”, he (the learned trial Judge) acted very much in error in law. It was, therefore, submitted that their Lordships of the Court of  Appeal equally erred in law in refusing to uphold the view of the learned trial Judge, earlier on set out in a portion of his judgment, that he considered himself to have seriously erred in law when in June, 1976, he pursued such a course.

The question of law which arises for our decision for this second ground of appeal is one of considerable importance; and this is particularly so – it seems to me – because there appears to be considerable misunderstanding among practitioners and, sometimes, in the lower courts (as in the case in hand) on the issue of “calling” a witness (not selected by the parties) and “recalling” a witness (so selected) in civil proceedings. There is, therefore, need to re-state the principles which govern this aspect of our law of evidence. The basis of the general principle which governs this aspect of trials in courts in this country is much the same as in English law from which legal system much of our rules of evidence derive; and it is very aptly put by Sir Rupert Cross in the 4th Edition of his Book on Evidence at p. 195, wherein the learned author stated:

“The elucidation of facts by means of questions put by parties or their representatives to witnesses summoned, for the most part, by them, called mainly in the order of their choice, before a Judge, acting as umpire rather than inquisitor, is the essential feature of the English ‘adversary’ or ‘accusatorial’ system of justice ………..” (Underlining supplied by me)

Accordingly, a general rule of our law of evidence is that neither a Judge, nor an umpire in arbitration proceedings, has any right to call a witness in a civil action without the consent of parties (see: Re Enoch and Zaretzky Bock and Co’s Arbitration (1910) 1 KB 327, also Bell-Gam v. Bell-Gam (1965) All NLR 106 at 109 per Bairamian, JSC.

Whereas, however, in criminal cases a Judge may, for the discovery of truth, himself call and examine any witness  (See Section 200 of the Criminal Procedure Act and similar provisions in the Criminal Procedure Laws of the several States), he can, in civil cases do so only with the consent of parties to the proceedings However, with regard to re-calling a witness who has already at the request of party or parties to the proceedings given evidence, different considerations arise. Suppose, it is discovered long after a witness who, at the instance of one of the parties, gave evidence earlier in the proceedings that he or she had in another proceedings testified to the contrary in respect of a very important issue in the proceedings in hand, can it be seriously contended that he or she cannot be re-called by the court suo motu, or even in the face of objection by one of the  parties to the proceeding in hand, in order that his or her credit may be re-examined because to do so (as the learned trial Judge in these proceedings has stated), would be tantamount to a serious irregularity I should think not. On this subject, the learned authors of the Eleventh Edition of Taylor on his Treatise on the Law of Evidence Vol. 2 paragraph 1477 have this to say:

(A)   “The Judge has always a discretionary power with which the court above is very unwilling to interfere, of re-calling witnesses at any stage of the trial, and of putting such question to them as the exigencies of justice require. He will seldom however, except in special circumstances, permit a plaintiff, after his case is closed to recall a witness to prove a material fact; though the application will in general be entertained, if made before the closing of the plaintiff’s case.  So if it be discovered after a witness has been cross-examined, that his testimony at the trial relative to the subject matter of the case differs from some other statement formerly made by him, the court will allow him to be re-called if still within reach, and to be further cross-examined, in order to lay the foundation for impeaching his credit by producing witnesses to contradict him………….” (Underlining supplied by me)

So much of the above quotation along the margin of which I have marked (A) was approved by the Court of Appeal (England) in Fallon v. Calvert (1960) 2 QB 201 at 205, also Tabaa v. Lababedi (1974) 1 All NLR (Part 1) 400 at 406; and that part of the quotation along which I have set down the letter (B) definitely is in support of what the learned trial Judge did (although he erroneously considers himself to have erred) on the 22nd day of June, 1976, in these proceedings when, the plaintiff (i.e. respondent), not having closed his case, was allowed to be re-called to prove a material fact. I would like to add, however, that the right to re-call a witness under  discussion is not personal to a particular Judge seised of the proceedings but that of the court seised of the matter. It is, therefore, a very important power to be used by a court in arriving at the truth of matters under investigation before it. And this important principle of evidence so far as concerns  civil cases, has never been doubted.

In Fallon v. Calvert (supra), after the defendant had given evidence at the trial of an action, the Judge made an interim order requiring the defendant to deliver a list of his earnings, and subsequently another Judge referred the matter to an Official Referee to hear and report on the defendant’s earnings. The Official Referee made an order directing the defendant to be recalled as a witness and cross-examined. Held on appeal (Hodson and Pearce L. JJ.), that the Official Referee (i.e. as the Court then seised of the proceedings) had the jurisdiction to order the defendant to attend before him for cross-examination since the Official Referee was conducting what was in substance a continuation of the trial. And in the Scottish case of Todds v. Macdonald (1960) S.C. (J) 93, it was also clearly stated that the power of recalling a witness is not limited to the purpose of “clearing up ambiguities in the evidence he had already given” but that the party recalling him might put to the witness any completely new point which had inadvertently been omitted in his original evidence (as, indeed, would appear to be the position, in these proceedings, on 22nd June, 1976) (see also  Bevan v. M’Mhon and Bevan (falsely called M’Mahon)  (1859) 2 SW. and TR. 55 also 164 ER 912 at 913).

The argument and submissions now urged on this court in support of the view taken by the learned trial Judge of his action on 22nd June, 1976, is much the same as that of John G. Wilmers who appeared for the defendant in Fallon v. Calvert (supra) but which was duly and rightly rejected. (See also Ogberejeko Ogbodu v. Eriyota Odogha (1967) NMLR 221 at 223  per Coker, JSC.). Your Lordships ought in this appeal to reject the same as being completely devoid of merit.

One other point I would like to mention but which so far I have refrained from mentioning because I consider it unnecessary for the purpose of my decision in this appeal to do so, is that there was in fact no objection to the  re-call  of the respondent on 22nd June, 1976. There could not have been because neither the respondent nor his counsel participated in the proceedings at that stage. It has, of course, been submitted to us on behalf of the appellant and, in my view, quite erroneously that the learned trial Judge erred in law in refusing to adjourn the proceeding as requested on behalf of the appellant by his counsel. I cannot myself imagine a more unreasonable request. That request was for an adjournment (1) not to any specific date but to an unspecified date (i.e. sine die) and (2), it was not for the reason that a warrant for the production of the appellant (at the time a prisoner) to enable him testify could only be obtained on a particular date subsequent to the application; but the truth, however, was that in effect no reason whatsoever (other than the statement that the appellant was serving a term of imprisonment) was advanced to the court.

I have already pointed out that the learned trial Judge was wrong in refusing to consider and assess the evidence before him in these proceedings and that the Court of Appeal quite properly assessed the same and rightly found in favour of the respondent.

I would dismiss this appeal and affirm the judgment and orders of the Court of Appeal. This appeal is dismissed; and the respondents will have costs in this court assessed at N300.00k.

M. BELLO, J.S.C.: I have had the opportunity to read in advance the judgment delivered by my learned brother, Idigbe, JSC. For the reasons stated by him, I agree that the appeal should be dismissed and I endorse the order made by him.

A. O. OBASEKI, J.S.C.: I am in full agreement with the opinion expressed by my learned brother, Idigbe, JSC.The additional point which I think needs some mention and emphasis is the meaning of non- suit and its conclusive nature in any proceedings which it terminates. The need for the clarifications arises from the fact that the learned trial Judge appears to have been under a misconception that he still had jurisdiction left in him to make an order of transfer of the suit to another Judge for hearing de novo after entering an order of non-suit against the plaintiff/respondent in the proceedings.

The power of the court to enter a non-suit against the plaintiff is contained in Order 28 Rule 3 of the High Court (Civil Procedure) Rules Cap. 65 Vol. III Laws of Bendel State 1976 which reads:

“The court may in any Suit, without the consent of the parties non-suit the plaintiff where satisfactory evidence has not be given entitling either the plaintiff or the defendant to judgment of the court.”

By the provisions of this Rule, the decision to non-suit the plaintiff necessarily involves a consideration of the evidence adduced, its assessment and evaluation in order to determine whether it is just to order a non-suit than dismiss the action. To assist the court in its determination, it was held in Craig v. Craig and Craig (1967) NMLR 52 by this court that when the propriety of a non-suit had not been argued, if a trial Judge should think of entering a non-suit, it is desirable that he should first ask counsel for the parties for their submissions. Elaborating on this point, Coker, JSC., delivering the judgment of the court commented at p. 55:

“It seemed to us, when considering our judgment, that this might be a proper case for a non-suit, but we thought that we ought first to hear learned counsel. And we pause to observe when the propriety of a non-suit has not been argued, if a trial Judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submissions. …………………

Inevitably, a non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether in this case that would be wronging the defendant and on the other hand whether a dismissal of the suit would be wronging the plaintiffs.”

See also Elufisoye v. Alabetutu (1968) NMLR 298
See also Azubike Ume &Ors. v. Alfred Ezechi & Ors. (1964) 1 WLR 701.

The effect of an order of non-suit is to terminate the proceedings in which it is made and the final nature of such decision is brought out vividly by the decision of the Federal Supreme Court in an application for leave to appeal to Her Majesty in Council in the case of Azubike Ume  & Ors. v. Alfred Ezechi & Ors. (1962) 1 All NLR 16.

Delivering the ruling of the court in the application, Unsworth, F.J., commented:

“Counsel for the respondent submitted that no appeal lies under that provision of the Constitution as the decision of the Federal Supreme Court is a final decision and referred to the well-known cases on the difference between an interlocutory and a final order. There can be no doubt that the decision of the Federal Supreme Court in this case is not final in the sense that it is a final and conclusive adjudication of the  matters in controversy in the action. It is, however, the final decision of the Federal Supreme Court in the present proceedings and in our view, the appeal lies to the Judicial Committee under Section 114(1)(a) which gives a right of appeal in the circumstances mentioned against “final decisions in any civil proceedings.”

The learned trial Judge having terminated the proceedings by non-suiting the plaintiff, he became functus officio in the action and exhausted all the jurisdiction he had in the matter. There was nothing left for him to transfer.

As already indicated in the opening paragraph of this judgment, I entirely agree with all the opinions expressed in the judgment of my learned brother, Idigbe, JSC. I find no substance in the appeal and in concurrence  with my learned brothers, Idigbe, JSC., and Bello, JSC., I hereby dismiss it with costs assessed at N300.00 (Three Hundred Naira).

K. ESO, J.S.C.: My Lords, I am in entire agreement with the judgment just delivered by my learned brother,  my Lord, Idigbe, JSC. There is no merit in the appeal which is hereby dismissed with order as to costs as stated in the aforesaid judgment of my learned brother.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment delivered by my learned brother, Idigbe, JSC. I agree with the reasoning and conclusions therein and I have nothing to add.
I will accordingly dismiss the appeal and award costs to the respondent as ordered in the judgment of my learned brother, Idigbe, JSC.

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Other Citation: (1980) LCN/1105(SC)