Csp L.l. Anagbado V Alhaji Idi Faruk (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division, delivered on the 18th day of March, 2011 which affirmed the judgment of the trial Court, the High Court of Justice, Kaduna State delivered on 30th September, 2013.

FACTS

The property in dispute or the subject matter of this suit is no.17B Degel 2 Anguwan Rimi, Kaduna. It forms part of the large expanse of property belonging to the Federal Government under the supervision of the Federal Ministry of Works and Housing situate at No.17, Degel 2 Anguwan Rimi, Kaduna.

In 1992, the respondent applied for allocation of a piece of land from the Federal Government through the Federal Ministry of Works and Housing.

By an offer of leasehold interest dated 1st day of September, 1997, the Federal Government through the Federal Ministry of Works and Housing, offered the respondent leasehold interest in the plot of land which is carved out from the property of the Federal Government situate at No.17 Degel 2, Anguwan Rimi, Kaduna, under certain terms and conditions including the payment of

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premium and annual grounds rents in the sum of N15,000 and N500 respectively which the respondent accepted and complied with.

The appellant as an occupier of the property situate at No.17 Degel 2, Anguwan Rimi, took advantage of the policy of alienation of the Federal Government properties for sitting occupier applied to the Implementation Committee of the Alienation of the Federal Government landed properties for allocation of the property being occupied by him.

By a letter of offer of leasehold interest dated 29/6/10, the appellant was allocated and granted lease in respect of the developed structures being occupied by him as a sitting tenant which consists of 3 bedroom detached bungalow including 3 bedroom bungalow boys quarters and a garage as clearly spelt out in the letter of offer. When the respondent took possession of the carved out plot allocated to him being No.17B Degel 2, Anguwan Rimi, Kaduna and developed a structure therein, the appellant resisted and insisted that the allocation made to him is inclusive of the carved out plot allocated to the respondent.

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The respondent through a letter dated 20/12/10 sought for clarification as to the validity of the allocation of the carved out plot made to him and the Implementation Committee of the White Paper on the Commission of Inquiry into the alienation of the Federal Government landed property, confirmed the alienation allocation of the said carved out plot i.e No. 17B Degel 2, Anguwan Rimi to the respondent, via a letter dated 23/12/10.

In spite of the above, the appellant did not allow the respondent free access to the plot of land allocated to the respondent as carved out, hence the respondent instituted an action at the High Court of Justice, Kaduna State (the Trial Court).

At the conclusion of the trial, the learned trial judge entered judgment in favour of the respondent.

The appellant being dissatisfied with the judgment of the trial Court, unsuccessfully appealed to the Court of Appeal Kaduna division (the Court below), hence this appeal to the Supreme Court. Parties thereupon filed and exchanged briefs of argument.

The appellant’s brief of argument was filed on 28th November, 2016, settled by Alex Ejesieme. The said brief of argument was however deemed filed on 23rd of January 2017.

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In the said brief of argument, the appellant raised five issues for the determination of the appeal which said issues include the following:-

1. Whether the Court of Appeal was wrong in affirming the decision of the trial Court when Exhibits P1-P7 tendered by the respondent and relied upon by the Courts below are bereft of any probative value. (Grounds 1 & 2)
2. Whether the Court of Appeal was wrong in affirming the decision of the trial Court when the respondent’s case is at variance with the pleadings, contradicts each other and not credible at all. (Ground 3)
3. Whether the Court of Appeal was wrong in affirming the decision of the trial Court that Exhibits D2 and D3 were produced by a person interested and as such lacks evidential value. (Ground 5)
4. Whether the trial Court and indeed the Court of Appeal properly evaluated the case of the Appellant as against that of the respondent before eventually finding for the respondent (Grounds 4, 6 and 7.)
5. Whether Exhibit P2 is a registrable instrument.

As regards the respondent, his brief of argument settled by O.I. Habeeb was filed on 21st February, 2017.

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Therein, two issues for determination were distilled as below:-

A. Whether the lower Court was justified in affirming the decision of the trial Court as it relates the admissibility of and probative value placed on title documents tendered by the respondent and admitted as Exhibits P1 to P8 in proof of the claim of the respondent to title in the disputed property

B. Whether the lower Court was right in affirming the decision of the trial Court which granted the reliefs sought by the respondent and dismissed the counter claim of the appellant having regard to the totality of the evidence(oral/documentary led by the parties.)

SUBMISSIONS OF COUNSEL ON ISSUES FOR DETERMINATION

ISSUE NO. I

This issue deals with whether the Court below was wrong in affirming the decision of the trial Court when Exhibit P1-P7 tendered by the respondent and relied upon by the Court below are bereft of any probative value. The learned appellant referred to Exhibits P1, P3 and P5 and submitted that the contents of documents can be proved either by primary or secondary evidence. He argued that Exhibits P1, P2 and PW3 admitted by the trial Court and affirmed by

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the Court below are photocopies and that they can only be admitted if they were certified true copy moreso when no foundation was laid as required by the Evidence Act to warrant the admission of photocopies as against the original. He referred to Section 83(3) (4) (5) of the Evidence Act and submitted that from the totality of what transpired at the trial Court, the respondent did not say that Exhibits P1, P3 and P5 were made or executed by him. He contended that the two Courts below converted the address of the respondent’s counsel into evidence as he has submitted that the photocopies were made from the original copy. He cited the case of BUHARI V OBASANJO (2005)13 NWLR (pt. 941) and submitted that address of counsel can never amount to evidence. He then urged the Court to resolve this issue in favour of the appellant.

ISSUE NO. 2

Issue No. 2 deals with whether the Court below was wrong in affirming the decision of the trial Court when the respondent’s case is at variance with pleadings. The learned counsel for the appellant argued that the respondent did not attach the certified bank cheque for the sum of N15,500 which he claimed he included in

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accordance with terms and conditions of Clause (viii) i.e Exhibit P2. He also contended that Exhibit “P2” shows that the size of the land allocated to the respondent is 960 square metre while Exhibit P8 tendered by the respondent shows that the size of the said land is 1470.00 square meters.

He therefore contended that Exhibits P2 and P8 contradict each other and that Exhibit P2 makes a mandatory provision in paragraph 2, to the effect that acceptance be done with an enclosed certificate of a certified bank cheque. He argued further, that as at 6th October, 1997 when the respondent purportedly accepted the offer in Exhibit P2, he did not comply with paragraph 2 clause (viii) of the terms and conditions of the offer.

ISSUE NO. 3

This issue deals with whether the Court below was wrong in affirming the decision of the trial Court, that Exhibits D2 and D3 were produced by a person interested after the suit was instituted at the trial Court and therefore they lack evidential value.

The learned counsel for the appellant referred to the finding of the trial Court as well as Court below to the effect that Exhibits D2 and D3 lack evidential value

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because it was produced by person interested. In response, he referred to the case of B.B. APUGO & SONS LTD V OHMB (2016) 13 NWLR (pt. 1529) at 219 .

He again submitted that the DW2 who testified on behalf of the Presidential Implementation Committee and tendered Exhibits D2 and D3, cannot be described as a “person interested” to render her evidence inadmissible.

ISSUE NO. 4

Issue no. 4 deals with whether the trial Court and the Court below had properly evaluated the case of the appellant as against that of the respondent

On this fourth issue, the learned counsel to the appellant argued that the respondent did not discharge the burden placed on him to entitle him to the declaration sought, especially in the light of Exhibits D2 and D3 which destroyed Exhibits P2, P3, P4, P5 and P6.

He argued that proof of identity of the land in dispute is of utmost importance to success in any land suit. He stated further, that Exhibit P2 gives the size of the land to be 960 square metres, whereas Exhibit P8 gives the size of the land to be 1474 square metres. He therefore submitted when a plaintiff desires to rely on a survey plan showing

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the land in dispute, such a plan must show clearly, the dimension of the land, the boundaries and other salient features. He cited the case of AREMU V ADETORO (2007) 7 SC (pt.1). He then urged the Court to resolve this issue in favour of the appellant.

ISSUE NO. 5

Issue no. 5 queries whether Exhibit P2, offer of lease is a registrable instrument. The learned counsel to the appellant referred to Section 15 of the Lands Instrument Registration Law Cap 85 Vol. 2 Laws of Kaduna State 1991. He submitted that registration of Exhibit P2 is a prerequisite for the purpose of admissibility in evidence. He cited the case of OBIENU v. OKEKE (2016) 16 NWLR (pt.1005) pg 225 at 239-240 (para D-A).

He urged the Court to allow the appeal and grant the counter claim.

In his response to the argument of the appellant counsel, the learned counsel to the respondent distilled two issues for determination.

ISSUE A

Issue A deals with whether the Court below was justified in affirming the decision of the trial Court as it relates to the admissibility of Exhibits P1-P8. The learned counsel for the respondent argued that aside from the letter of

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acceptance of the offer which was admitted as Exhibit P3, the appellant did not object to the admissibility of other documents. He submitted that where a document is legally admissible upon fulfillment of certain conditions and it is admitted in evidence without objection, that other party cannot later complain on the admissibility of such document and the Court cannot expunge it. He cited the case of OLUKADE V ALADE (1976) ALL NMLR 56 among others. He argued further, that Exhibits P1, P3, and other documents tendered which were made by the respondent which constitute correspondence between the respondent and the relevant Government agencies, such documents can be regarded as private documents which do not require certification. He cited the case of ABDUL V BENSU (2003)16 NWLR (pt. 845) 59 at 76 H-77A-D.

He argued that Exhibits P1, P3 and P5 do not constitute documents of title, vesting title or interest on the respondent in relation to the property and that in the light of their nature and tenor, there would still be basis for the judgment entered in favour of the respondent since evidential value can be placed on them.

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He argued that the submission of the appellant overlooks the potency and relevance of Exhibits P2 and P6 which are documents conveying the allocation of the property in dispute and confirmation and validation of the allocation of the property in dispute to the respondent.

On the issue or contention of the appellant that Exhibit P3 does not constitute a valid acceptance, he referred to the reference no of Exhibit P2 i.e KD/SAS/FGP/DR/117/B and Exhibit P3 KD/SAS/FGP/DEG/171/B and stated that the letters “DR” contained in Exhibit P2 is replaced with letters “DEG” in Exhibit P3. He argued further, that there may not Bank Draft in the sum of N15,000 as required by Exhibit P3 but a revenue cheque in the sum of N15,000 was tendered and admitted as Exhibit P4. He submitted that Exhibits P2 and P3 represent a contract between the respondent and the issuing authority, being the Federal Ministry of Works and Housing. He argued that the appellant not being a privy to the said contract, is not in a position to determine or question the validity of same as the appellant appears to be saying in paragraph 6.01-6.08 of his brief of argument.

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He submitted that all the issues raised by the appellant regarding the state of Exhibits P2, P3, P4 and P8 border on mere discrepancies which do not go to the root and substance of the interest acquired by the respondent on the property in dispute to make same fatal to the claim of the respondent. He argued that the reliefs sought by the respondent in the trial Court can be gleaned from page 5 of the record which is for a declaration that he is the bonafide allottee of the carved out plot No.17B Degel 2 Anguwan Rimi Kaduna. He submitted that it does not derogate from the right of the respondent to a favourable declaration of being an allottee of plot No. 17B, Degel 2, Anguwan Rimi, notwithstanding the discrepancies in the measurement of the plot in Exhibits P2 and P8.

He argued that there is no dispute about the identity of land in dispute as it has always be known as No.17B, Degel 2, Anguwan Rimi throughout the proceedings in the trial Court.

On the contention of the appellant that Exhibit P2 was not registered to make it admissible, he responded by arguing that the issue of non registration of Exhibit 2 was neither raised at the trial Court nor in the Court below by the appellant.

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He stated further Exhibit P2 is merely an offer of leasehold interest and is therefore exempted from the provisions of Section 15 of the Land instrument Registration Law, pursuant to the provision of the land Registration Law by regulation law thereof which provides thus:-

“An agreement for sale or lease affecting land shall be exempted from the provision of the law whether made before or after the coming in to operation of these regulation.”

He contended further, that even if Exhibit P2 is an instrument affecting land within the meaning of Section 15 of the Land Instruments Registration Law, the admissibility or otherwise of a registration instrument is dependent on the purpose for which it is being tendered. He urged the Court to resolve this issue in favour of the appellant.

ISSUE B

Issue B deals with whether the Court below was right in affirming the decision of the trial Court which granted the relief sought by the respondent. The learned counsel to the respondent argued that the two lower Courts did not attach any probative value to Exhibits D2 and D3 not because it was tendered by person interested within the meaning of Section 83 of the Evidence Act, but it was

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discountenanced because it was procured by the appellant during the pendency of the suit at the trial Court.

He argued that Exhibit D3 was clearly aimed at invalidating Exhibit P6. He then urged the Court to resolve this issue in favour of the respondent and dismiss the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

Looking closely at the two sets of issues raised by learned counsel to the parties, I am inclined to determine this appeal on the guidance by the two issues raised in the respondent’s brief of argument as they appear to me to have subsumed all the five issues raised in the appellant’s brief of argument which are verbose. The issues raised by respondent are also all encompassing.

ISSUE A

The grouse of the appellant on his issues is centered on the admissibility of and reliance by the trial Court on Exhibits P1-P8 tendered by the respondent as admitted and relied upon and acted on by the trial Court and the subsequent affirmation of same by the two Courts below and the discountenance of Exhibits D2 and D3 by the two lower Courts.

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I think it will not be out of place to state here, that the nature of respondents documents for purpose of clarity is to decide whether or not such exhibits were really admissible in law and or worth being relied upon by the two lower Courts. At the trial Court, these exhibits were tendered in evidence by the respondent, in an effort to prove his claim of the disputed land as plaintiff in the case. As could be gathered from page 290 of the record of appeal, the under listed documents were tendered, by respondent and admitted in evidence without objection from the appellants’ learned counsel.

(1) Letter of application written by the respondent/plaintiff to Federal Ministry of Works and Housing for allocation of plot (Exh P1).

(2) Offer of allocation/lease by the said ministry. (Exh P2)

(3) Copy of acceptance by the plaintiff dated 6/10/1997.(Exh P3).

(4) Receipt of payment of N15,500 dated 25/9/1997. (Exh P4).

(5) Application by the plaintiff dated 20/10/2010.(Exh P5).

(6) Reply of the Plaintiff dated 23/12/2010 (Exh P6).

(7) Letter from the ministry dated 27/6/2017 (Exh P7).

(8) CTC of Survey Plan(Exh P8).

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When these documents were tendered, if I may repeat, the counsel of the appellant did not raise any objection of all the documents except Exhibit 2, the Plaintiffs Acceptance Letter which the learned appellant’s counsel stated was not certified. The trial Court then proceeded to admit all the exhibits listed above and marked them as Exhibits P1 to P8. In short, the trial Court admitted all the documentary exhibits except the acceptance letter. The learned counsel for the respondent is now challenging the admission of all the exhibits by the trial Court on the ground that such documents being public documents, according to him, were inadmissible in evidence because, being public documents, they were supposed to be certified, but were not so certified. The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, can not later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that.

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The appellant is therefore estopped from raising the issue of admissibility of the exhibits since when the documents were tendered at the trial Court, no objection on their admissibility was raised by the appellant/defendant.

This brings me to the point raised by the appellant regarding the non certification of the documents which are photocopies or secondary evidence. As rightly found by the lower Court, looking at Exhibits P1, P3, and P5, it is not doubtful that they are documents made by the respondent. Exhibit P1 is a letter or application made by the respondent/plaintiff to the ministry, applying for the allocation of the plot in dispute, while Exhibit P3 represents the plaintiffs/respondent’s letter dated 6/10/97 accepting the allocation of the said plot. Exhibit P5 is also an application authored by the plaintiff/respondent. These documents exhibited or tendered by the plaintiff/respondent, emanated from him. To my mind even though photocopies, they do not require any certification since they are not public documents requiring certification but are rather private documents which in law, do not require any certification since they are correspondences between the plaintiff/respondent and government officials or agencies.

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I must reiterate here that Exhibits P1, P3 and P5 constitute documents authored or written by the respondent and to my mind those exhibits are private documents by virtue of the provisions of Section 103 of the Evidence Act and therefore though photocopies, they do not require any certification. With regard to Exhibits P2, P4, P6 and P7 such document are surely public documents within the meaning or definition by Section 102(a) (1) and (2) of the Evidence Act, since they were original documents executed or made by public officers or public agency while carrying out official act. Such documents being public document do not also therefore require any certification. See PDP v INEC (2014)17 NWLR (pt.1437) 525 at 563; Invest Ltd Vs Witt & Bush Ltd (2011) 8 NWLR (pt. 1250) 500 at 527. It is my view that Exhibits P1 to P7 are admissible in law and the trial Court rightly admitted them in evidence and acted on them. The lower Court on the other hand also rightly affirmed the trial Court’s admission of same and its finding on them.

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The two lower Courts were therefore correct in attaching probative value to Exhibits P1 to Exhibits P8 as proof of the claim made by the respondent to the title of the land in dispute. I therefore resolve the first issue in favour of the respondent against the present appellant.

ISSUE NO. B

This second issue is centered on the propriety and admissibility of or refusal by the two lower Courts to attach probative value on Exhibits D2 and D3 tendered by the appellant before the trial Court through DW2. Exhibit D2 is Federal governments White paper while Exh D3 presents correspondence between the Presidential Implementation Committee and the Controller, Federal Ministry of Land and Housing, Urban Development Kaduna, and is dated 7th November 2011. In its judgment, the trial Court relied on and acted on all the exhibits/documents tendered by the respondent/plaintiff and found in favour of the respondent/plaintiff and allowed his claim and rejected or dismissed the appellant’s counter claim after evaluation of the evidence adduced in the case. The trial Court in its judgment now appealed against, affirmed the trial Court’s decision, hence this appeal lodged by the appellant.

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I have stated earlier that, as rightly affirmed by the Court below, the exhibits relied on and acted upon as proof of the plaintiff/respondent’s case, were admissible in evidence and the lower Court was flawless in affirming the decision of the trial Court, that the documents tendered by respondent do not require any certification before they could be admitted in evidence without any objection from the defendant/appellant.

Now, closely looking at Exhibits D1, D2, D3 which were relied on by the appellant in defence of the suit and in proof of his counter claim, there is no doubt that the said exhibits were made or procured after the suit was instituted at the trial Court by the plaintiff/respondent or when the suit was pending at the trial Court. The trial Court, in my view, was correct in taking them to be inadmissible in view of the fact that they were manufactured, procured, produced or made in anticipation of the case pending in Court as at the time they were made. The law is trite, that evidence procured during the pendency or in anticipation of a case is not admissible in law. See Abdullahi vs Hashidu (1999) 4 NWLR (pt. 600) 638 at 645; Anyanwu vs Uzowuaka (2009)13 NWLR (pt.1159) 445 at 476.

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On the whole, it is important to consider whether the respondent as plaintiff at the trial Court, had proved his case which led the trial Court to find in his favour and allow his claim of title to the land in dispute and as subsequently affirmed by the Court below.

It has for long been a settled law, that claim of title to a land can be established in any of the following five ways or modes, namely:-

(i) By traditional evidence, or

(ii) By production of documents of title

(iii) By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner,

(iv). By acts of long possession and enjoyment of the land; and

(v). By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See IDUNDUN v OKUMAGBA (1976)9-10 SC 227.

In an effort to prove title to land, the plaintiff always has the onus to prove his title in any or more of the above mentioned ways and to prove acts of ownership

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sufficient enough to warrant the inference that he as the claimant, is the exclusive owner of the land claimed. See NWABISI vs IDIGO (1957)SCNJ 76. The plaintiff or claimant of title must satisfy the Court that he is entitled on the evidence adduced by him to obtain such declaration of title. In other words, the claimant or plaintiff must rely on the strength of his own case and NOT to rely the weakness of the defendant’s case. See ITAUMA v AKPE-IME (2000) 7 SC (pt. II)24.

In this instant case, the trial Court had carefully considered the documents produced by the plaintiff/respondent, namely Exhibits P1-P8 and also compared or weighed along side them with Exhibits D2 and D3 which are the documents of title produced, tendered and relied on by the defendant, (now appellant) to contest the plaintiffs/respondent’s claim. After analysing the entire documentary evidence and evaluating them, the Court found thus; inter alia

“Exhibit P6 affirmed the allocation of the land to the respondent. It is to be noted that Exhibits D2 and D3 were procured at the time the appellant had instituted the action against the respondent before the lower Court.

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Are Exhibits D2 and D3 of any evidential value The law is settled, documents made or produced at a time an action is pending before a Court of law by an interested party can not be of any evidential value in same matter that is pending. See Abdullahi v Hashidu (1999)4 NWLR (pt. 600)638 @ 646 wherein it was held that:-

“The next issue is as to the status of Exhs JJ and KK. There is no doubt that when these documents were made, pleading have been filed and served. Therefore they were made at the time of the proceedings of the case. Exh M2 is a document which on its face value appears to be governments expression of its acceptance of the recommendation of the judicial commission of inquiry which indicted the 1st Respondent. Exhs JJ and KK which on their face seek to explain the Federal Government’s position on M2 were obviously wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents..”

See also Asuquo v Asuquo (2009)16 NWLR (pt.1167) 225 at 1252.”

The lower Court finally affirmed the finding of the trial Court that Exhibits D2 & D3 which are the documents

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relied on by the appellant/defendant in defence of the suit and also in proof of his counter claim as inadmissible and therefore of no evidential value. I think the two lower Courts are flawless in such finding and can not be faulted hence I accordingly endorse such finding.

Considering the entire documentary and other oral evidence adduced in the case and also after comparing the documentary evidence adduced by both parties, I have no option but to agree and affirm the finding of the lower Court that the respondent as plaintiff at the trial Court, had proved his claim of title to the land in dispute on preponderance standard and was therefore entitled to judgment as rightly found by the two lower Courts. I therefore resolve the two issues against the appellant and in favour of the respondent herein.

On the whole, I adjudge this appeal to be devoid of merit. It is accordingly dismissed. The counter-claim is equally dismissed for being lacking in substance. Costs follow events. I award costs of N200,000 only against the appellant in favour of the respondent. Appeal and counter claim dismissed.

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SC.496/2016