Salawu Oke & Ors. V. Musilim Lamidi Aiyedun (1986)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C.

This is an appeal against the decision of the Court of Appeal at Ibadan dated 31st October, 1983 which affirmed the decision of Craig, Chief Judge of Ogun State dated 31st March, 1980 dismissing the appellants’ application to set aside his order for perpetual injunction made on 15th October, 1979. The background to the whole appeal may be stated thus:

The respondent as plaintiff instituted an action in May, 1977 against the appellants, as defendant at the High Court of Justice, Ogun State holden at Abeokuta in the following terms:-

1. “The plaintiff’s claim is N800 against the defendants jointly and severally due to the plaintiff and payable by the defendants by building on plaintiff’s land and extending it over plaintiffs house at Ilagbe compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiffs property in the plaintiffs house in 1972 which is still continuing.
2. a perpetual injunction restraining the defendants their servants agents and/or privies from further damaging plaintiffs house and further acts of trespass on plaintiff’s landed property situate and being at the said Ilagbe Compound, Itoko, Abeokuta. The annual rental value of the property is N10.00.
3. Alternatively to the above claim, the plaintiff claims N500.00 against the defendants jointly and severally due to the plaintiff and payable by the defendants and being damages for nuisance committed by the defendants by building on plaintiff’s land and extending it over plaintiff’s house at Ilagbe Compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiff’s property in the plaintiff’s house in 1972 which is still continuing.
4. a perpetual injunction restraining the defendants their servants agents and/or privies from further damaging plaintiff’s house and further acts of nuisance on plaintiff’s landed property situate and being at the said Ilagbe Compound, Itoko, Abeokuta.

Pleadings were ordered accordingly. Thereafter the respondent filed a statement of claim on 7th March, 1978. In paragraphs 1, 5, 8 to 16 of the said Statement of Claim, he pleaded not only his root of title, but also made an allegation of trespass and or nuisance against the appellant and averred that it caused serious damages to his properties.

Even though the appellants were duly served with the writ of summons as well as the statement of claim, they failed to file their statement of defence at the appropriate time. Consequently, the respondent brought an application for an order “giving judgment to the plaintiff in the action for defendant’s failure to file a defence”. That application was duly served on the appellants by substituted service by pasting on the Notice Board of the Court in accordance with the Practice Direction of the Court No.1 of 1978. Thereafter, the application was heard in the absence of the appellants on the 15th October, 1979 after which the learned Chief Judge made the following order:

“The order is granted as prayed. Accordingly, there will (be) judgment for perpetual injunction against the Defendants, their servants agent and/or privies. It is ordered that they shall be restrained from further damaging the plaintiff’s house and property situate and being at Ilagbe Compound, Itoko, Abeokuta.

2. The claim for N800.00 damages is adjourned till the 12/11/79 for evidence to be taken on the quantum of damages.”

It is to be noted from this aforementioned order that no evidence was taken before the order for perpetual injunction was granted; whereas the matter was then adjourned for evidence to be taken before determining the claim for trespass and the quantum of damages claimed thereon. However, when indeed evidence was taken subsequently on 21st November, 1979, the truth of the matter became evident. The respondent performed so woefully in his testimony that the Chief Judge castigated him so much before dismissing the claim of N800.00 as damages for trespass. In his judgment, the learned Chief Judge said:-

“I have listened to the plaintiff in proof of his claims for damages, but I regret that nothing that he has said can be pinned down to any acts of the Defendants. The defendants were said to have entered the plaintiffs father’s house: this may be trespass and is actionable at the suit of the plaintiff.

But on the Writ the claim for N800.00 is for damages caused when the defendants built;

“on the plaintiffs land and extended it over the plaintiffs house at Ilagbe compound, Abeokuta in such a way that rain water therefore damaged the plaintiff’s property in the plaintiffs house in 1972 – – – – – – – – – – – – – – – – – – – – – – – – – ”

The facts pleaded in paragraphs 13 -16 of the Statement of Claim, were to the same effect, although the building was said not to have been done by the defendants but by their father Adebesin.

But the evidence led on proof of these paragraphs is contrary to the facts pleaded. The Defendants were said to have left their father’s house and gone to live in the plaintiff’s house. On the return of the plaintiff 2 years afterwards, he found that the front had collapsed and his property damaged by rain water.

The Plaintiff did not say how the property came to be damaged: The Court would have liked to know whether the damage to the roof was caused by an act of God e.g. a Tornado, or by an act of the Defendant’s removing the roof unjustifiably. Whatever this may be, the evidence led is at variance with the pleadings and I must hold that the plaintiff has failed to prove the damages which he claimed.

In the circumstances it is ordered that his claim for N800.00 be dismissed. ”

(Italics mine)

It seems to me that having dismissed the claim of N800.00 for damages for trespass with such a strong language, it should have occurred to the learned Chief Judge that the basis for the order of perpetual injunction formerly granted on 15th October, 1979 had disappeared. It is to be realized that the claims brought by the respondent, being for trespass coupled with an injunction, title was involved: See Okorie v. Udom (1960) 5 F.S.C. 162; and it is clear from the judgment that the respondent not only failed to establish his title to the land and to prove any trespass committed by the appellants, but the evidence led by him also showed that the damages complained of by him and attributed to the appellants could have been caused by an act of God – i.e. by tornado. If it had occurred to the learned Chief Judge that the basis for the order of perpetual injunction had disappeared, he would not have hesitated to discharge that order. It was because he failed to do so that precipitated the latter proceedings which necessitated this appeal.

After the said final judgment dismissing the claim for trespass was entered on 21st November, 1979, the appellants brought an application dated 14th February, 1980 for an order “setting aside the judgment for perpetual injunction entered against the Defendants on 15th October, 1979 in the absence of the Defendants on the ground that the said judgment was entered irregularly and contrary to the Rules of Court”. But the only ground in support of the application as contained in paragraph 9 of the Affidavit of Mr. S.A. Adebesin sworn to on 18th February, 1980 was as follows:-

“Neither the Defendants nor their solicitor F.O. Bakare Esquire received the Notice of Motion for judgment, and they did not have any knowledge whatsoever of it, not having been served.”

However, a counter-affidavit was later sworn to and filed on 19th March, 1980 by one Aramide Adama, to the effect that the motion paper for judgment in default was served in accordance with Practice Direction No.1 of 1978 aforementioned. At the hearing of the application to set aside the judgment of the trial court, learned counsel for the appellants conceded the point that the appellants were properly served with the motion papers; but he submitted that the application for judgment in default of defence on which the order for perpetual injunction was based, was brought and determined under Order 25 A Rule 1(1) of the Ogun High Court Rules. It was further contended that that Order was inapplicable and that the relevant one was Order 13 rule 2(2) of the Rules of Ogun State High Court. Hence it was submitted that the judgment of the court was therefore bad for irregularity.

In his Ruling dated 31st March, 1980, the learned trial Chief Judge reviewed the two Rules of Court and the facts deposed to in the affidavit as well as the counter-affidavit. He then made the following findings:-

(a) That on the argument of the learned counsel for the appellant that the judgment was given under a wrong rule of court, there is a presumption of law that a judgment of court is rightly delivered according to law; and that there were numerous occasions when litigants had brought genuine applications to the court either without stating the relevant Rule of the Court under which the applications were brought or by inserting inappropriate rules to such applications, yet on such occasions the court had in doing justice to the applicants, always heard the applications on their merit and made the necessary orders.

(b) That where a court has jurisdiction to grant a prayer sought, and it gives a judgment which it has the power to give (whether under a Rule of Court or under its inherent jurisdiction), that judgment will not necessarily be invalidated or set aside by the fact that it has misconceived its source of power or the various courses open to it; See Chief Kofi v Seifar (1958) 1 All E.R. 288 at page 290.

(c) That a distinction must be made between an order of judgment which a court is not competent to give and an order which even if erroneous in law or in fact, is within the court’s competence; and that where a court of competent jurisdiction makes an erroneous order, the proper course is to appeal against that order. See S. M. Timitinmi & Ors. v. Chief Amabebe 14 WACA. 374 at p. 377.

(d) That in the instant case, it was not disputed that the court was competent to deal with the motion for judgment or that the power to give such judgment had not arisen. But the fact that it appeared merely on the face of it that the judgment was given under a wrong rule of court was not enough to upset the judgment.

(e) That from time immemorial, a court has always had ex debito justitiae, the power to set aside its judgment given under certain irregular circumstances.”

Against that decision, the appellant appealed to the Court of Appeal at Ibadan on only one ground as follows:-

“The learned Chief Judge misdirected himself in law and misconceived the issues raised before him when he held:

(i) that the Court cannot be called upon to correct a judgment in law;

(ii) that the main argument being that the order of Court made on 15th October 1979 was made under Order 25A

Rule 1(i) of the High Court (Civil Procedure) Rules 1977 instead of under Order 13 Rule (2), as long as there is authority to support a Court Order, an error cannot be corrected by the same Court.

PARTICULARS

(a) The High Court has jurisdiction to set aside a judgment which is entered irregularly and contrary to rules as when done in this case.

(b) The procedure under Order 13 Rule 2(2) which is applicable, required that the case be set (down for hearing not as was done in the Order dated 15th October 1979) for an Order entering judgment by default against the defendants under Order 25A Rule 1(1)

(c) the judgment dated 15th October 1979 was irregularly entered under Order 13 rule 2(2) as well as under Order 25A Rule 1(i) and the Court on application should have set it aside and heard the case on the merit.

(d) the main case for trespass having been subsequently dismissed on (12th November 1979) on being properly set down for hearing, there is no legal right in the respondents to support the order for perpetual injunction made on 15th October 1979 which the learned Chief Judge refused to set aside on application.”

It is however to be noted that particular (d) given on that ground, made the point that since the main case for trespass was dismissed, there was no longer any basis for the order of perpetual injunction made on 15th October, 1979 in favour of the respondent.

During the hearing, of the appeal, learned Counsel for the appellants made the same submissions which were previously made at the court of trial. However after considering the submissions of learned Counsel, the Court of Appeal, like the trial Chief Judge, took the same view that the remedy of the appellants lay in appealing against the Order of perpetual injunction of 15th October, 1979 to that Court and not in applying to the trial Chief Judge to set aside his own order. Inter alia, that Court observed as follows:-

“It seems to me that Counsel for the Appellants would have been on a firmer ground if he was appealing against the judgment especially as the claim for trespass on which the order for injunction was tried was dismissed by the same Court.

The claims before the lower Court on which judgment was entered are for trespass to land and injunction which may involve the issue of title. They are not such claims on which summary judgment may be entered under order 25A Rules 1 and 2 of the Rules of Ogun State High Court which apply only to the classes of claims set down in paragraph 2 of the said order; namely: action for recovery of debt, liquidated damages, action for arrears of rent and possession between landlord and tenant.

Although the application for the judgment was stated to have been brought under Order 25A Rule 1, the learned Chief Judge felt not obliged to say clearly in the ruling on appeal under what rule of Court he entered the judgment in favour of the plaintiff summarily on a motion or not after hearing. He conceived that he had the power to give the judgment in any event including his inherent power. He said:-

“In my view what matters is whether the Court had jurisdiction to grant the prayer sought. Where a court gives a judgment which it has the power to give (whether under a rule of court or under its inherent jurisdiction) that judgment may not necessarily be invalidated or set aside by the fact that it has misconceived its source or the various sources open to it.”

I have a strong feeling that the learned’ Chief Judge erred in giving a summary judgment on the plaintiff’s claim for perpetual injunction, that is, not after a hearing of the case as contemplated under Order 13, Rule 2(2). I do not think this rule means the same as applying for judgment on a motion. In any case this may well be a ground of appealing against the judgment. To that extent the learned Chief Judge was correct in saying that if he erred the proper remedy open to the aggrieved defendants is to appeal to a higher Court and not to seek to set aside the judgment. I will add that it is equally not open to the appellants to seek to launch an appeal against the refusal of the lower Court to set the judgment aside. An appeal against the judgment of 15th October 1979 would have been more advisable.”

With this confirmatory judgment of the Court of Appeal, one would have thought that the appellants would have seen the wisdom of appealing against the order of perpetual injunction of 15th October 1979. But they did not. Rather, they appealed against the decision of the Court of Appeal to this Court and in the first two grounds of appeal the same points as those made in the Court of Appeal were again raised. However ground 3 complained thus:-

“The Federal Court of Appeal erred in law in not allowing the Appellants’ appeal and dismissing the plaintiff’s claim in its entirety in as much as the claim before the High Court was for damages for trespass (and or nuisance) to land and a perpetual injunction to restrain further trespass (and or nuisance) and the High Court had taken evidence on the claim for trespass (nuisance) and dismissed it.

PARTICULARS

(i) There is no legal right to be protected by the injunction.

(ii) The injunction cannot be sustained in the circumstances.”

It is this third ground of appeal that has raised the issue of the invalidity of the order for perpetual injunction made by the trial Chief Judge in favour of the respondent on 15th October 1979 on the ground that it could not be sustained after the same judge had dismissed the respondent’s claim for damages for trespass. I am however of the opinion that the matter was inappropriately raised in a wrong forum when there was no appeal against the order of perpetual injunction itself, but against the decision of the Court of Appeal affirming the judgment of the trial court that refused to set it aside.

In his submissions before this court Mr. Chukura, learned counsel for the appellants did not raise any new point which had not been ‘previously canvassed in the Court of Appeal. He merely emphasized his previous submissions that in so far as the application for the order to enter judgment was brought by the respondent under a wrong Rule of Court, the learned trial Chief Judge should have on the application of the appellants, set aside the order of perpetual injunction.

However, Mr. Akintunde, learned counsel for the respondent in reply submitted that the trial court was competent to make the order for perpetual injunction whether rightly or wrongly; and having done so, it became funtus officio; and it therefore no longer had the power to rehear, alter or vary its own judgment. He cited several authorities in support of that submission.

In my view, the whole complaint of the appellants stemmed from a confusion as to the powers of the trial court in this matter. It is not disputed that a court of trial has the power to set aside its judgment given in certain appropriate circumstances. See Vint v. Hudspich (1885) 29 Ch. 322.

The learned trial Chief Judge conceded that point. It has also been held that a person who is affected by an order of the Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. Failure to serve process where service of process is required renders null and void an order made against the party who should have been served. Thus in Craig v. Kanssen (1943) 1 K.B. 256, a case in which the issue was whether the High Court could set aside an order made by another Judge of the same jurisdiction that gave the plaintiff leave to enforce judgment under the Courts (Emergency Powers) Act, 1939 of England or whether the remedy lay only in appeal. Lord Greene M.R. in the course of his speech, held that the court could set aside its own order; and at pages 262 – 263 he observed:-

“…………… The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained.”

(Italics mine)

(See also White v. Weston (1968) 2 All E.R. 824 at 846 C.A.)” Also see Chief Kofi v.Seifah (1958) 1 All E.R. 289 a Privy Council Case.

This case was referred to with approval by this court in Skenconsult (Nig.) Ltd. & Anor. v. Godwin S. Ukey (1981) 1 S.C. 6 in which Nnamani, J.S.C. in his lead judgment said inter-alia at pages 25-27 thus:-

“The learned counsel for the respondent in the course of his argument before us conceded that there had been no compliance with Section 99 of the Sheriffs and Civil Process Act but has asked us to regard it as an irregularity due to administrative problems of the High Court Registry. I am of the contrary view and I think that all the breaches in the instant case of the regulations relating to service and appearance are fundamental defects and go to the question of the competence and the jurisdiction of the court which pronounced the orders sought to be set aside. I may add that even if they were irregularities mere acquiescence of the parties (as claimed by learned counsel for the respondent) cannot give the court competence or jurisdiction. (See Westminister Bank Limited v. Edwards (1942) A.C. 529 at 536; (1942) 1 All E.R. 470 at 474 where Lord Wright observed: ..,

“Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity because as Willes, J, said in London Corp. v. Cox (1867) L.R. 2 HL. 239 in the course of giving the answers of the judges to this House, “Mere acquiescence does not give jurisdiction”.

(Italics mine)

There are other instances in which a court will set aside its own judgment or vary it whether in the exercise of its own inherent jurisdiction or by the powers conferred by the Rules of Court. Those instances are set out in Vol. 26 of Halsbury’s Laws of England 4th Edition paragraphs 556 & 557. Also see in this connection the decisions in:

(i) Macarthy v. Agard (1933) 2 K.B. 417

(ii) Lazard Bros v. Banque de Moscon (1933) A.C. 289

(iii) Thynne v. Thynne (1955) 3 All E.R. 129 at page 146

(iv) Asiyanbi v. Adeniji (1967) N.M.L.R. 238.

(v) Alapa v. Sani (1967) N.M.L.R. 397

(vi) Okorodudu v. Ejuetami (1967) N.M.L.R. 282

However, there are numerous authorities to support the view that where a court is competent to deal with a matter, the fact that its judgment was given under a wrong Rule of Court, or under a mistaken view of the law applicable to the matter, that Court cannot be called up to correct its own mistake in law or to upset its judgment. That would be a matter for an appellate court: See S. M. Timitimi & Ors. v. Chief Amabebe 14 WACA 374 at 377. In Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587, Bairamian F. J. (as he then was) said that “a court is competent” when:- “(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”

(Italics mine)

It is quite clear from the decision of the trial Chief Judge in refusing to set aside its judgment of 15th October 1979 for perpetual injunction, that the appellant’s complaint was that the decision was given under a wrong Rule of Court. No question of incompetent jurisdiction was raised in the matter. I am therefore of the firm view that having given that decision, the trial Chief Judge became functus officio, and he could no longer on the decided authorities, set aside that decision of 15th October, 1979.

If therefore the trial Chief Judge was mistaken in law in giving that decision under a wrong Rule of Court, the appellant should have appealed against it. That was exactly what the learned trial Chief Judge himself said in his Ruling of 31st March, 1980; and the Court of Appeal at Ibadan confirmed that view in their judgment of 31st October, 1983 now appealed against. But as I have said before the appellant did not take any heed of those views; but went ahead to appeal to this court on precisely the same ground. As it is now obvious that he has taken the wrong course, by applying” to set aside the trial court’s decision of 15th October, 1979 instead of appealing against it, this appeal must fail; and it is hereby dismissed with N300.00 costs to the respondent.

Having dismissed this appeal on purely procedural ground, is it still possible for the appellants to appeal against the order made by the trial Chief Judge for perpetual injunction on 15th October, 1979 at this late stage Already three courts had taken the view that the order is appealable; and having regard to the nature of the respondent’s claims at the trial, the dismissal of the claim for damages for trespass seems to me inconsistent with the continued maintenance of the order for perpetual injunction itself. Since the learned trial Chief Judge had found that the appellants were not liable for trespass, it is inconceivable to think that the order for perpetual injunction which was earlier made to restrain the appellants from further committing the said trespass, can still be allowed to remain.

See (i) Oladimeji v Oshode (1969) 1 All N.L.R. 417 at 432; and

(ii) Olayioye v. Oso (1969) 1 All N.L.R. 281 where this court observed at page 285 as follows:-

“The remedy for an injunction will not avail where, as in this case, the plaintiff could not have succeeded in the claim for trespass and both claims should have been as well refused”.

In the circumstances, I am of the view that if an appropriate application for extension of time within which to appeal against the said order is made to the appropriate court, that application should, in the interest of justice, be given a favourable consideration even at this late stage.

OBASEKI, J.S.C. (Presiding): The only issue for determination in this appeal is whether on the material before the High Court the refusal of Craig, C.J. to set aside the judgment for an order of injunction entered against the appellant in default of pleadings and appearance and the affirmation of that refusal by the Court of Appeal was justified. This issue has been adequately dealt with in the judgment of my learned brother, Kazeem, JSC, which I had the advantage of reading in advance, delivered a short while ago by him. I agree with him and I adopt his opinions as mine in this appeal. For the reasons stated so ably by him in the said judgment, I too would dismiss the appeal and I hereby dismiss the appeal with costs to the respondent fixed at N300.00.

As the debate and argument on the proper procedure to be adopted to secure a reversal of the judgment which from the of the final judgment delivered by Craig, C.J. on the claim for N800.00 damages for trespass ought not be allowed to stand, it is proper that I add the following short comment.

The claims before the High Court, Craig, C.J. reads in terms endorsed on the writ of summons and stated in the statement of claim:

1. “The plaintiffs claim is N800.00 against the defendants jointly and severally due to the plaintiff and payable by the defendants by building on plaintiffs land and extending over plaintiffs house at Ilagbe Compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiff’s property in the plaintiff’s house which is still continuing.
2. A perpetual injunction restraining the defendants, their servants, agents and/or privies from further damaging plaintiffs landed property situate and being at Ilagbe Compound, ltoko, Abeokuta. The annual rental value of the property is N10.00.

Alternatively, to the above claim,

3. The plaintiff claims N800.00 against the defendants jointly and severally due to the plaintiff and payable by the defendants and being damages for nuisance committed by the defendants by building on plaintiffs land and extending it over plaintiffs house at Ilagbe Compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiffs property in the plaintiff’s house in 1972 which is still continuing.
4. A perpetual injunction restraining the defendants, their servants, agents and or privies from further damaging plaintiffs house and further acts of nuisance on plaintiffs landed property situate and being at the said Ilagbe Compound, Itoko, Abeokuta.”

After hearing evidence, the learned Chief Judge dismissed the claim for damages for trespass holding

“I have listened to the plaintiff in proof of his claims for damages, but I regret to say that nothing that he has said can be pinned down to any acts of the defendants”

If a claimant is unable to prove that the acts of trespass complained of were committed by the defendants, the court has nothing to restrain the defendant for and any order of injunction made against the defendants in such circumstances is wholly unjustified and ought to be discharged. This is only a point of law and if the learned Chief Judge has erred in law or has acted under a wrong Rule of Court what is the proper step the defendants should fake

The plaintiffs having filed and served their pleadings on the defendants and the time for filing and serving the pleadings by the defendants having expired properly filed his application for judgment in default. The High Court had jurisdiction in the matter and is empowered by the Rules to entertain and determine applications for judgment in default. See Order 13 Rule 2(2). The contention of counsel for the appellants clearly is not that the High Court had no jurisdiction but that it should not have exercised the power to give judgment in default under the wrong Order, Order 25A Rule 1(1). He should, it is contended, have exercised its powers under Order 13 Rule 2(2). This contention tantamounts to a submission of an error in law.

The question that necessarily arises therefore is whether the learned Chief Judge was not functus officio and incompetent to entertain the motion to set aside his judgment on the ground that he erred in law in giving judgment as he did. These Rules of court have been carefully drafted to give power to a judge to set aside its own judgment where circumstances preventing the party in default as explained to it, if uncontradicted and undiscredited, would make the court appear in breach of the first limb of the Rules of Natural Justice audi alteram partem.

I agree with my learned brother that the learned Chief Judge cannot entertain the ground and that the matter is properly a matter for the appellate court. See S. M. Timitimi & Ors. v. Chief Amabebe 14WACA 374 at 377. The learned Chief Judge is incompetent to entertain the matter. He cannot hear and determine an appeal against his own judgment. He is incompetent to do so. Any defect in competence is fatal for the proceedings of a court without competence is a nullity. See Alapa v. Sanni & Ors. (1967) NMLR. 397 at 400.

For the above reasons and the reasons so ably stated in the judgment delivered a short while ago by my learned brother, Kazeem, JSC., I hereby dismiss the appeal with N300.00 costs to the respondents.

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SC.145/1984