Major Shehu Ibrahim V. Dr. Junaid Salik Mohammed (2003)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

The respondent in this appeal was the plaintiff in the High Court of Kaduna State Holden at Kaduna, where he sued the appellant and one Hajiya Bahajatu Katsina claiming against them jointly and severally for:-

“1. A declaration that the plaintiff is entitled to a right of occupancy in and over all the piece or parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North in the Kaduna State of Nigeria which land is more particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. NC.4303 and thereon verged RED and registered as No. NCR 52 at page 52 in volume 10 (Certificate of Occupancy) at the Lands Registry in the office at Kaduna.

2. N20,000.00 damages against the defendants for trespass committed on the said parcel of land.
3. Perpetual injunction restraining the defendants, their agents, servants and/or privies or otherwise howsoever from committing further acts of trespass on the said land.”

Pleadings were filed and exchanged. Parties called witnesses in proof of their respective cases and then filed written addresses at the end of the trial. The learned trial Judge Donli, J. (as she then was) in a considered judgment found for the plaintiff/respondent against the defendants and ordered as follows:-

“1. The plaintiff is entitled to the right of occupancy in and over all that parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North, Kaduna State of Nigeria which land is particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. 52 at page 52 in Volume 10 (Certificate of Occupancy) at Lands Registry in the office at Kaduna.

2.(a) N5,000.00 as damages against the 1st defendant for trespass committed on the said land by the construction of a wall.

(b) N10,000.00 as damages against the 2nd defendant for the acts of entering on the said land.

3. Perpetual injunction restraining both 1st and 2nd defendants, their agents, servants, and for privies or otherwise howsoever from committing further acts of trespass on the land.”

Dissatisfied with this order, the defendants separately appealed to the Court of Appeal. The 1st defendant Hajiya Bahajatu Katsina, abandoned her appeal which was dismissed pursuant to Order 6 rule 10 of the Court of Appeal Rules, 1981. The appeal of the respondent as 2nd defendant was considered by the Court of Appeal and was also dismissed with costs. He then appealed to this court. Here, the parties filed their respective written briefs and exchanged them between themselves. In the appellant’s brief, the following issues were formulated for the consideration of this court:-

“1. Whether the Court of Appeal was right when they struck out issue No.2 of appellant’s brief dealing with the application or otherwise of s. 5(2) of the Land Use Act, 1978 to exhibit 1 and exhibit A8 (exhibit A13).

2. Whether the issue of priority and validity or otherwise of the two Certificates of Occupancy exhibits 1 plaintiff’s title and exhibit A8 (exhibit A13) 2nd defendant’s title over the same piece of land arose for determination in the High Court.
3. Whether the Court of Appeal was not obliged to determine the validity and priority of the plaintiff’s title exhibit 1 (Certificate of Occupancy issued on 2nd November, 1977 under the Land Tenure Law, Cap. 59) and defendant’s title exhibit A8 Certificate of Occupancy issued on 23rd March, 1988 and exhibit A13 Certificates issued on 29th March, 1988, before determining which of the two parties has a better title to the land in dispute.
4. Whether the Court of Appeal was right when they held that the plaintiff proved a better title to the plot in dispute No.7, Road ‘D’, Malali Kaduna through exhibit “I” than the 2nd defendant who relied on exhibits “A8” and “A13″.
5. Whether the Court of Appeal was right when they struck out suo motu ground 4 of the ground of appeal.
6. Whether the failure of the Court of Appeal to consider defences of standing by, laches and acquiescence raised by the 2nd defendant was a serious misdirection in law and occasioned a miscarriage of justice.
7. Whether the decision of the Court of Appeal to confirm the award of N10,000.00 damages for trespass against the 2nd defendant was excessive.”

The respondent maintained in his brief that the only (four) issues for the determination of this court in this appeal are:-

“(a) Whether or not the courts had to consider issues which the appellant had not raised or pressed when he should have done so particularly s.5(2) of the Land Use Act;

(b) Whether or not the respondent’s first-in-time status in principle entitles the respondent to victory;

(c) Whether or not the damages awarded were excessive;

(d) Whether or not the appellant’s equitable defences (particularly “standing by”) were tenable.”

Before considering the issues arising in this appeal, let me briefly state here the facts of the case as disclosed in the pleadings and evidence at the trial. In 1977, the respondent applied for and was granted a statutory right of occupancy by the then Military Governor of Kaduna State in respect of plot No.7, Road ‘D’, Malali Kaduna. A Certificate of Occupancy No. NC.4303, dated 2nd November, 1977 and registered as No. NCR.52 at page 52, volume 10 at the Land Registry Kaduna was issued to him. It was tendered at the trial and admitted as exhibit 1. The respondent took possession of the plot in 1977 and in 1985, and 1988, he noticed that the appellant and Hajiya Bahajatu Katsina were constructing a building on the plot. He immediately warned them separately through his counsel to stop but they refused to do so. The respondent filed this action against both of them in the trial court.

At the trial, Hajiya Bahajatu Katsina virtually admitted building a wall on the respondent’s plot but the appellant while denying any act of trespass, claimed that he bought the land or plot in dispute from one Alhaji Mohammed Ahmed Adam with a partially completed building on the plot at the cost of N500,000.00. He also stated that the plot in dispute was originally allocated to the said Alhaji Mohammed Ahmed Adam in 1976 and that after he (appellant) purchased the plot with the consent of the Military Governor as required by the land Tenure Law, the latter issued him with a Certificate of Occupancy in his own name in respect of the said plot. He rendered his documents of title to the land and they were admitted as exhibits A5 to A13.

Exhibit A8 was a Certificate of Occupancy in the name of the appellant’s vendor, Alhaji Mohammed Ahmed Adam dated 8th March, 1987 and exhibit A13 was a Certificate of Occupancy in the name of the appellant dated 22nd March, 1988 both issued by the Military Governor of Kaduna State in respect of the same plot of land No.7, Road ‘D’, Malali, Kaduna. I will now consider the appellant’s issues having regard to the grounds of appeal he filed in this appeal.

Issue 1.

This issue is asking whether the Court of Appeal was right to strike out issue No.2 in the appellant’s brief filed before it pertaining to the application of s. 5(2) of the Land Use Act in relation to exhibits 1, A8 and A13. The issue which is on page 319 of vol. 11 of the record of appeal reads:-

“2. Whether the title of the plaintiff as per exhibit 1 a Certificate of Occupancy under the Land Tenure Law, Cap. 59 was not extinguished with the issuance of a subsequent Certificate of Occupancy on 8th March under the Land Use Act, 1978 (exhibit A8) and later exhibit A13.”

Earlier, on the 22nd June, 1994 (page 325 of record) the Court of Appeal granted the appellant’s application to file an additional ground of appeal which reads:-

“the learned trial Judge erred in law when she held that the plaintiff had a better title to the land in dispute plot 7, Road ‘D’, Malali, Kaduna, because exhibit 1 is first in time to exhibit A8 and A13.

PARTICULARS OF ERROR

(i) Exhibit 1 is a Certificate of Occupancy issued on 2nd November, 1977 under the Land Tenure Law, Cap. 59.

(ii) Exhibit 13 is a Certificate of Occupancy issued on 23rd March, 1988 in favour of 2nd defendant under the Land Use Act, 1978.

(iii) Exhibit A8 was issued on 8th March, 1978.

(iv) By the provisions of s. 5(2) of the Land Use Act the title of the plaintiff by exhibit 1 was extinguished with issuance of exhibits A8 and later A13 over the same piece or parcel of land.”

The learned counsel for the appellant submitted that the additional ground of appeal with its particulars fully support the distillation of issue No.2 in the brief before the Court of Appeal. It clearly speaks of exhibit 1 being first in time to exhibits A8 and A13 and that by S. 5(2) of Land Use Act, 1978, the subsequent issuance of exhibit A8 and A13 extinguished the rights created by exhibit 1. Therefore, counsel submitted, the said issue 2 was properly before the Court of Appeal for consideration in the appeal, and the court of appeal was clearly wrong to strike it out as it did.

I have carefully examined the appellant’s additional ground set out above, and it appears to me clearly that although the main ground speaks of the plaintiff having a better title, that is properly tied up with item (iv) of the particulars of error which speaks of extinguishing that title by virtue of the provisions of s. 5(2) of the Land Use Act, 1978. And since the ground of appeal contains some particulars, that ground must be read together with the particulars to make it a complete ground, and must be based on issue in controversy between the parties. See Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787. The issue in controversy here is whether the plaintiff/respondent had a better title by exhibit 1 or whether exhibits A8 and A13 extinguished that title. In this regard, I am of the view that the additional ground of appeal contained all what was required to challenge the title of the plaintiff/respondent and to invoke the interpretation of the provisions of s.5(2) of the Land Use Act, 1978. I therefore find that the issue is very much related to the ground of appeal and that the Court of Appeal was wrong in striking out issue No.2 in the appellant’s brief filed before it in this matter. I answer issue 1 in the negative.

Issue 2

This issue also asks the question whether the issue of the priority and validity or otherwise of the Certificate of Occupancy granted to the appellant and the respondent at different dates over the same piece of land arose for determination in the High court. Looking at the state of the pleadings filed by the parties and the evidence called at the trial, there is no doubt that the fundamental issue before the trial High Court was who between the parties had a better title to the land in dispute. It is evident that the dispute was over one piece or parcel of land, the Certificate of Occupancy granted to the appellant (exhibits A8 and A13) and to the respondent (exhibit 1), were all granted by the same authority and were authenticated documents. Therefore, in order to determine which of the Certificates of Occupancy conferred better title to the holder thereof in respect of the land in dispute, the question of priority or validity as between the Certificates of Occupancy must have arisen at the trial. This was considered by the learned trial Judge in her judgment on pages 231-232 of the record of appeal (vol. 1). I answer issue 2 in the affirmative.

Issue 3

This issue is more or less repeating what was said in issue 2 but applicable to the Court of Appeal has a duty to determine the priority and validity of the parties’ Certificates of Occupancy before deciding which of the parties had a better title to the land in dispute, having regard particularly to the grounds of appeal filed before it challenging the findings of the learned trial Judge to the effect that the respondent had a better title to the land in dispute than the appellant. This duty was discharged when, after reviewing the evidence on record before the learned trial Judge, the Court of Appeal said:

“Therefore from the pleadings and the evidence on record, the finding of the learned trial Judge that the respondent had proved better title through exhibit 1 than the 1st appellant whose title was supported by exhibits A5, A8 and A13 is quite in order.”

I also answer this issue in the affirmative.

Issue 4

This issue now asks this court to determine whether the respondent proved a better title to the plot in dispute than the appellant having regard to exhibits 1, A8 and A13. The court of appeal found that the respondent had proved better title through exhibit 1 than the appellant claiming through exhibits A8 and A13. It is pertinent to observe that this issue is very much connected and related to the issue N0.2 of the appellant in his brief in the Court of Appeal which I earlier found was wrongly struck out by the Court of Appeal. The issue reads:-

“2. Whether the title of the plaintiff as per exhibit 1 a Certificate of Occupancy under the Land Tenure Law, Cap. 59 was not extinguished with the issuance of a subsequent Certificate of Occupancy on 8th March under the Land Use Act, 1978 (exhibit A8) and later exhibit A13.”

(Italics mine)

This issue raised a question of law. The Court of Appeal came to the decision mentioned above without considering issue 2 above which it struck out as not being supported by any ground of appeal before it. I have earlier found that the Court of Appeal was wrong in striking out the said issue 2. And although Court of Appeal made no pronouncement on it, this court can, notwithstanding, consider the question of law raised in that issue. See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390 at 407; Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 31 at 144.

I have no doubt in my mind that from the argument advanced in the appellant’s brief in issue 4 and the way the issue 2 struck out by the Court of Appeal but now revived was couched, an issue of law was predicated on the application of the provisions of s. 5(2) of the Land Use Act, 1978 (hereafter referred to as the Act). Section 5(2) of the Act provides:-

“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

(Italics mine).

The meaning of this subsection will appear to be clear and unambiguous. It simply means that whenever the appropriate authority grants a statutory right of occupancy to any person in respect of a piece or parcel of land, all rights earlier existing over the same piece or parcel of land shall be extinguished. But the nature of such rights must be carefully understood. Learned counsel for the appellant submitted in his argument on this issue in his brief, that the appellant’s grants in exhibits A8 and A13, over the land in dispute were later in time to that of the respondent (exhibit 1) and therefore the rights of the respondent over the same land were thereby extinguished. He relied in support on the decisions of this court in Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 530; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 277, and submitted that in all these cases it was held that the grant of statutory right of occupancy automatically extinguishes all existing rights in respect of the piece of land over which it is granted. He also pointed out that in case of Saude v. Abdullahi (supra) the court went further to say that in order to save the earlier grant the later grant must be expressly set aside. I have carefully studied these cases, and it is abundantly clear to me that the submission of the learned counsel was not quite correct but it must be pointed out that the interpretation of that section in those decisions was obiter dicta which does not bind this court. In Saude v. Abdullahi (supra) the only relevant issue was whether or not the Governor of Kaduna State could have validly revoked the Certificate of Occupancy of a grantee under s. 34(2)(c) of the Land Tenure Law of Northern Nigeria. It was not whether one Certificate of Occupancy had priority over another on the same parcel of land and so the interpretation of S. 5(2) of the Land Use Act did not come into play at all. In the cases of Dabup v. Kolo and Titiloye v. Olupo (supra) although the question of priority of grants was in issue and was considered and decided, it was only as between a customary right of occupancy granted by a Local Government as against a statutory right of occupancy granted by a State Governor. It is not a decision on the priority of grants of two or more certificates of occupancy granted under the Act in respect of one parcel of land as in this case. The issue was on the powers of the governor to issue a statutory right of occupancy in respect of a piece or parcel of land over which a customary right of occupancy had earlier been granted. In both cases, the decision was that the Governor could validly grant a statutory right of occupancy over a piece of land the subject of a customary right of occupancy without first revoking the customary grant. Section 9(1) and 28(1) of the Act were considered. The question of competing rights of two or more statutory rights of occupancy as in this case did not arise there and although s. 5(2) of the Act was mentioned in the decisions that part of the decisions, must be regarded as obiter dictum. With this distinction therefore, it is my respectful view that all the 3 cases cited by the learned counsel for the appellant in his brief in respect of this issue are not relevant to the circumstances of this case.

The learned counsel for the respondent on the other hand submitted that the respondent’s right of occupancy over the land came earlier in time than that of the appellants and since the former’s grant was not revoked before the latter’s grant, the former (the respondent) had a better title to the land in dispute. This, he said, was on the basic common law principle of first in time and the general legal principle of nemo dat quod non habet. On the last principle, he relied on the cases of Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528; Olohunde v.Adeyoju (2000) 10 NWLR (Pt. 676) 562; Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745. Learned counsel also referred to the recent decision of this court in Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280 and finally submitted that under the Land Use Act, the Governor has no powers to grant a Certificate of Occupancy in respect of a piece of land for which there was an existing right of occupancy before such grant over the same land except where such earlier right was revoked under s. 28 of the same Act. Any such grant, counsel further submitted, is invalid, null and void and need not be specifically set aside. Let me now at the expense of repeating myself recount the provisions of section 5(2) of the Act. They read:-

“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

Sub-section (1)(a) of section 5 of the Act, provides that the Governor can grant a statutory right of occupancy to any person for all purposes. And sub-section (2) proceeded to say that if such a statutory right is granted in respect of a piece of land, all rights existing to the use and occupation of the said land, shall be extinguished. It is my respectful view that if this subsection is interpreted literally, it will no doubt go against the grains and the pith and substance of the Land Use Act. The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live. It was intended by its provisions to preserve the existing land holdings or ownership created by the existing laws before its commencement of operation. The Act recognises the rights and obligations of the land holdings before it came into operation whether they constituted grant by communities, Local Governments or State Governments (see s. 4 of the Act). That was why the Act gives the whole land in the hands and under the control of the State Governors for the benefit of the people. It is not the intendment or the intention of the Act that the Governor shall use his powers to grant the land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act. Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for “overriding public interest”, which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with s. 28 of the Land Use Act. Also even where the revocation is valid, the grantee is fully entitled to compensation under s. 29(1) of the Act. The above are in my view the necessary safeguards which must be observed in the revocation of a right of occupancy under the Act. Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.

It has been well established that where the words of a statute are plain, clear, and unambiguous, it is not necessary to read anything into them other than to apply their ordinary meaning. See Nabhan v. Nabhan (1967) 1 All NLR 47; Ogunmade v. Fadayiro (1972) 8 – 9 SC 1. But the rules of construction and interpretation of statutes also counsel and in particular cases dictate, that all related provisions of a statute as well as the statute as a whole must be read together. See Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266; Mobil Oil (Nig.) Ltd. v. F.B.I.R (1977) 3 SC 53; University of Ibadan v. Adamolekun (1967) 1 All NLR 213. It is my view therefore that s. 5(2) of the Act cannot be read in isolation but it must be read together with all related provisions of the Act in order to achieve the intention of law makers.

It is not in dispute that in the instant appeal, the respondent was not notified by the Governor of the intended revocation of his earlier grant exhibit 1 before granting exhibit A8 (A13) to the appellant. This is in clear contravention of section 28(6) of the Act, it was also not shown by evidence that the respondent’s land was required for public purposes or interest. The respondent was not heard before the grant of his land was made to the appellant and no compensation was offered or given to the respondent as required by the Act. It is my respectful view therefore, that under these circumstances the grant of the statutory right of occupancy over the same piece or parcel of land to which the respondent had earlier been granted Certificate of Occupancy, was invalid, null and void. For a Certificate of Occupancy under the Act to be valid therefore, there must not be in existence at the time the certificate was issued a statutory owner of the land in dispute who was not divested of the existing legal interest to the land prior to that grant. See Olohunde v. Adeyoju (supra).

I have said earlier in this judgment that Saude v. Abdullahi (supra) has no application or relevance to the issues in this case as far as the interpretation of S. 5(2) of the Act was given in that case; because all what was said there was obita dicta. In Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280, Ayoola, JSC merely reiterated what Obaseki, JSC said in Saude v. Abdullahi and only agreed that where a Governor realises that he made a mistake in the grant or where the grant was obtained by fraud or deceit, the Governor can suo motu correct it. The learned Justice also examined the Native Rights Ordinance, Cap. 105 of Law of Nigeria, 1948, and section 6(3) of the Land Tenure Law of Former Northern Nigeria and agreed with the principle enunciated by Kawu, JSC in Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 that where statutory right of occupancy was granted over the same land the subject of an existing customary right, the latter is automatically revoked. This same principle was affirmed and accepted in case of Dabup v. Kola (supra) where Olatawura, JSC also agreed with Saude v. Abdullahi that a Governor can at any time correct any error detected in the grant of a right of occupancy. And although the issue of the construction of S. 5(2) of the Act arose in Dabup v. Kola (supra) it was not fully considered in the leading judgment of Olatawura, JSC because according to him:-

“Consequently, to consider the construction placed on S. 5(2) of the Land Use Act by either party at this stage will, in my view, tie the hands of the Judge that will hear the case de novo.”

And although the other learned Justices who sat with him in the panel that heard the appeal gave some interpretation of the section relying on Saude v. Abdullahi (supra) that was not, in my view, a determinant issue in that appeal since a retrial of the case was ordered as there was no conclusive proof that the competing rights of occupancy covered the same area. Therefore that construction does not bind this court.

From all what I have said above, I am firmly of the view that the decision of this court in Saude v.Abdullahi (supra) and the other cases I have considered along with it are not and will not be affected by the decision in this appeal. In this appeal, the Court of Appeal found, and I agree with them, that the respondent having produced his duly authenticated and properly executed document of title exhibit 1, and with the evidence in support, has discharged the duty placed on him as claimant to the plot in dispute, No.7, Road “D’, Malali, Kaduna. For the construction I placed on the provisions of S. 5(2) of the Act above, I find that the latter rights of occupancy exhibits AS and AI3 granted to the appellant were valueless and not worth the papers on which they were written. I answer this issue in the negative.

Issue 5, 6 and 7

I shall briefly deal with issues 5, 6, and 7 together. It is my respectful view, that these issues are of no consequence to the outcome of this appeal, because the resolution of any or all of them does not and will not affect the result of this appeal in any way.

Issue 5 questions whether the appellant’s ground 4 of his grounds of appeal was properly struck out by the court of appeal. It was alleging possible loss of memory on the part of the trial Judge at the time the judgment was delivered – five months after the address of parties. It was very clear that in the brier in the Court of Appeal no argument was advanced on this ground and no issue was distilled from it. The Court of Appeal found this to be the case, and I agree with them. It is settled that, any ground of appeal on which no issue was raised in a party’s brief and is not related to any issue is deemed to be abandoned by the party concerned. It cannot be argued in the appeal unless it is related to an issue formulated in the brief. This is not the case here. See Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524 at 534. I therefore find that the Court of Appeal was right in striking out the ground of appeal No.4 before it.

Issue 6 raised the question of standing-by, laches and acquiescence on the part of the respondent and raised by the appellant as defences not being considered by the Court of Appeal. On the contrary, the Court of Appeal in its judgment considered the defences as raised by the appellant in pages 364 – 366 of the record, and came to the conclusion with which I agree that the defences are not available to the appellant at the trial court. This was because there was undisputed and unchallenged evidence on record that the respondent acted immediately on receiving news of the trespass to the land by the appellant in May, 1988. This issue also fails and is answered in the negative.

Issue 7, deals with whether the damages of N 10,000.00 awarded by the trial court and affirmed by the Court of Appeal was not excessive. The respondent claimed N20,000.00 as damages at the trial court but was only awarded N10,000.00. There was clear and undisputed evidence of trespass by the appellant on the respondent’s land. And the respondent having been in possession of the land in dispute, is entitled to damages for trespass. The appellant did not on record show either here, or in the Court of Appeal that the award of N10,000.00 was made on wrong principle of law or that there was any injustice in making the award. There is therefore no reason why the Court of Appeal or this court will interfere with the award. See Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623. In the circumstances, I find that the Court of Appeal was right in confirming the award of N 10,000.00 to the respondent. The award is not excessive. This issue also fails and I answer it in the negative.

In the final analysis, I find that the decision of the Court of Appeal, confirming that of the trial court is correct and I affirm it. I dismiss the appeal of the appellant and award N10,000.00costs in favour of the respondent and against the appellant.

---

SC.59/1997