Subaya Metalware (Nig) Ltd V. Toyota Motor Corp. & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

The Applicant, who is the first Respondent in the substantive Appeal, is praying the Court for leave to adduce additional evidence on appeal. The Appellant/Respondent (hereafter referred to as the Respondent), was the plaintiff at the Federal High Court wherein it claimed inter alia:

A Declaration that by virtue of a Certificate of Trademark Registration issued to the Plaintiff in Class 9 – and in Class 11 – respectively and particularly the registration since 1996, the Plaintiff is entitled to the exclusive use of the Trademark “LEXUS” in Classes 9 and 11.

The Applicant, as the first Defendant at the trial Court, denied the allegations, and also claimed that it is the registered proprietor and owner of the Trademark LEXUS in Nigeria with respect to vehicles and spare parts in Class 12 of the Fourth Schedule of the Trademarks Act.

But the Applicant failed to tender any proof of registration of its LEXUS trademark registration in the said Class 12, and in his judgment delivered on 21/6/2016, the learned trial Judge, Buba, J., held that –

The failure of the 1st Defendant to tender any proof of registration of its purported LEXUS trademark in any Class whether valid or not – shows clearly that the 1st Defendant lacks any legal right whatsoever to properly defend this Suit and should have simply admitted all the averments of the plaintiff in its Statement of Claim – The Court can only adjudicate this matter based on the preponderance of evidence before [it] as proffered by the Parties and same cannot be assumed or inferred.

The trial Court found in favour of the Respondent, and the Applicant appealed to the Court of Appeal. Although its Appeal was successful, the Court of Appeal also observed in its judgment of 29/12/2017 that:

Exhibit P4 is a detached car stereo System labelled “LEXUS Premium System”. This fact is undisputed by the parties herein. However, the Appellant argued that it does not fall within the categories of goods in respect of which the 1st Respondent owns a registered Trademark within Classes 9 and 11 under the Fourth Schedule of the Trademarks Act. That Exhibit P4 is a component part/apparatus of a vehicle in Class 12. Appellant’s Counsel submitted that the Appellant had shown ownership and proprietorship of the Trademark LEXUS for goods in Class 12. This assertion is, however, not borne by the records or traceable to the evidence generated at the trial. As submitted and rightly too in my view, by learned counsel for the 1st Respondent, there is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, the Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in covers Class 12. Class 12 covers Vehicles; apparatus for locomotion by land, air, or water – Argument of counsel contained in the Brief of Argument cannot take the place of evidence.

At the end of the day, the Court of Appeal found that Exhibit P4 was not used by the Applicant in relation to goods in respect of which the Respondent has a registered Trademark and held that the trial Court erred in concluding that it infringed on the said registered Trademark.

​

The Respondent is the aggrieved Party in the substantive Appeal, but the Applicant is praying this Court for leave to adduce additional evidence on appeal by tendering the following documents as Exhibits:

– Certificate of Registration dated 14/1/1997 – for LEXUS & DEVICE in Class 12

– Certificate of Renewal dated 10/1/1997 – for LEXUS & Device in Class 12

– Certificate of Renewal dated 6/12/2010 – for LEXUS & Device in Class 12.

The Grounds upon which the Application is brought are as follows:

a) The Registration and Renewal Certificates sought to be tendered would have an important effect on the appeal pending before the Supreme Court, as it would establish the Applicant/Respondent’s statutory rights to the LEXUS & Device Trademark in Class 12. This fact was admitted by the Respondent/Appellant in its Reply to the Statement of Defence.

b) The Applicant had previously pleaded the above-mentioned Registration and Renewal Certificates in its Statement of Defence and had intended to tender same during proceedings at the Trial Court.

c) The Applicant was, however, unable to tender the Registration and Renewal Certificate during trial, as they were missing from [its] Solicitors’ records. Applicant conducted a painstaking search in its office at No. 3 Sinari Daranijo Street, Victoria Island, Lagos to locate the Registration and Renewal Certificates all to no avail. The Certificate could not be located.

d) The Applicant’s Solicitors attempted with all reasonable diligence to obtain certified copies of the Trademark registration and renewals from the Trademark Registry. This was however abortive, as the provision of missing copies of the Registration/ Renewal Certificates were a necessary precondition to obtain certified copies from the Trademarks Registry.

e) The Applicant’s Solicitors eventually obtained copies of the Registration and Renewal Certificates in 2017 during the pendency of the appeal at the Court of Appeal. The said copies were obtained from the Applicant, who had also checked its records and only located the said Certificates during the appeal at the Court of Appeal, when the matter was already ripe for hearing. The Applicant located the certificates from its archive/database and sent same to its Solicitors. [Attached as Exhibits TMC1 to TMC3 are Certified Copies of Certificates for LEXUS & Device in Class 12 registered as of 22/1/1990, and dated 24/1/1997, 10/7/1997 and 6/12/2010]

f) The Registration and Renewal Certificates sought to be tendered are credible evidence, which are unlikely to be uncontroverted, as they are Certified True Copies issued by the Trademarks Registry. The Respondent had previously admitted the existence of this Trademark registration and renewals in its Reply to the Statement of Defence.

g) The evidence sought to be tendered would not change the character of the case from what existed at the trial Court and Court of Appeal, as the fact of [its] Trademark registration was pleaded in its Statement of Defence.

h) The additional evidence sought to be adduced is weighty and material to the determination of the Applicant’s Statutory rights in the Trademark LEXUS & Device for goods in Class 12.

i) The evidence sought to be tendered would have influenced the decision of the trial Judge in the Applicant’s favour, in view of the statutory rights and protection afforded by the trademark registration and renewal for LEXUS & Device trademark in Class 12.

j) It would be in the interest of justice and fair hearing to grant this Application.

​In addition to the 16-paragraph Affidavit in support of the Application, 9-paragraph Counter-Affidavit in opposition, and 15-paragraph Reply to the said Counter-Affidavit, the said Parties filed and adopted their respective Written Addresses, and in the Applicant’s Written Address, it was submitted that the two Issues for Determination are as follows:

1. Whether this Honourable Court has the requisite power to grant an Application of this nature; and
2. Whether the circumstances of the instant case are such as this Honourable Court should exercise its discretion in favour of the grant of the Application, in accordance with established principles of law.

The Respondent formulated the following Issues for Determination –

1. Whether the circumstances of the instant Application are such that this Honourable Court ought to exercise its discretion in favour of the 1st Respondent/Applicant.
2. Whether this Honourable Court should grant the instant Application, which seeks to challenge the concurrent findings of the lower Courts when the Applicant has not filed a Cross-Appeal.

​

First off, the question of whether this Court has the power to grant this Application or not cannot be an issue, as it is brought pursuant to Order 2 Rule 12(1) & (2) of the Supreme Court Rules, which says that:

(1) A Party, who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with any proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.

(2) The Application shall be supported by affidavit of the facts on which the Party relies for making it and of the nature of the evidence or the document concerned.

​Thus, this Court has the power to entertain applications of this nature and grant same in appropriate circumstances, which are well laid out.

What’s more, the Respondent’s contention that the Applicant has not filed a cross-appeal, therefore, this Court cannot grant the Application does not require any in-depth analysis. There is no provision of law or rule of practice that says a Respondent must file a Cross-Appeal before he brings an application under the said Order 2 Rule 12(1) of the Rules. So, the Respondent’s argument that the Applicant seeks to set aside concurrent findings of the lower Courts without filing a Cross-Appeal, is of no moment since this Court is not dealing with the main Appeal.

The position of the law, as decided in a long line of cases, is that this Court is vested with discretion to grant applications of this nature, therefore, the issue that calls for determination is simply whether in the circumstances of this case, this Court should exercise its discretion in favour of the Applicant and grant the said Application as prayed.

The Parties, in their Written Addresses, set out guiding principles or conditions that must be satisfied, and which must co-exist, before an application of this nature is granted. The Applicant cited Asaboro v. Aruwaji & Anor (1974) 1 All NLR (Pt. 1) 140, while the Respondent cited Owata v. Anyigor (1993) NWLR (Pt. 276) 390, Enekebe v. Enekebe (1964) 1 All NLR 42, Asaboro v. Aruwaji (supra) and Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364, wherein this Court held that –

(a) The fresh evidence sought to be adduced, must be such that could not have with reasonable diligence, been obtained for use at the trial.

(b) The fresh evidence is such that if admitted would have an important, although not necessarily a crucial effect on the case.

(c) The fresh evidence must be such as is apparently credible in the sense that is capable of being believed and it need not be incontrovertible.

(d) The additional evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court.

(e) The fresh or additional evidence sought to be introduced must be material and weighty, although not conclusive.

On (a), the Applicant referred to paragraphs 7 & 8 of its Affidavit and argued that the documents could not with reasonable diligence, have been obtained for use at the trial, and as evidence of its clean hands, “it is on record that it pleaded the (said) documents at the trial Court”.

On (b), it submitted that it would have a fundamental effect on the justice of the case; and when juxtaposed with Respondent’s case that the use of a car stereo in a LEXUS branded car is an infringement of its LEXUS trademark registration in Class 9, this Court will find that the contention cannot stand in the face of the existence of a prior and competing legal right for car fittings, etc., which includes car stereo.

It also contends that the said Certificates are ex facie regular and credible pieces of evidence; that no oral evidence is required as the documents speak for themselves and corroborate and complement the existing evidence in the Record of Appeal; and that if received, they “will have an important, crucial and pivotal effect on the Appeal”.

In response to the Respondent’s contention that the Certificates were not missing, and could have been obtained, it cited Hakair Ltd. v. Sterling Bank (2019) LPELR-47638(CA), in which the Court of Appeal followed the decision of this Court in General & Aviation Serv. Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) 50, and argued that the averments in the Counter-Affidavit are all hearsay evidence and so, incompetent, as the Respondent does not have personal knowledge of its Records.

As to whether the evidence would have influenced the decision of the lower Court, it referred to the trial Court’s statement regarding its failure to tender “any proof of registration”, and argued that if the said pieces of evidence were available at the trial Court, it would have influenced the trial Court’s judgment; that the evidence is weighty and material as the Certificates sought to be adduced in this Court formed “the kernel of the dispute at the trial Court”; that even the dictum of the trial Judge emphasized the importance of the Certificate; and that:

The materiality of the evidence sought to be adduced is clearly demonstrated in the statement of the trial Judge – and that this Application is not designed to overreach the [Respondent] or spring a surprise when the Appeal is heard. If it were so, the Applicant would not have pleaded the Registration and Renewal Certificates at the trial Court.

The Respondent, however, urged the Court to dismiss the Application, as the Applicant has not made out any case to warrant the exercise of the Court’s discretion in its favour. It cited Obasi v. Onwuka (supra) and UBA Plc. v. BTL Ind. Ltd. (2005) LPELR-8065 (SC) and submitted that appellate Courts lean against receiving fresh evidence on appeal, and this Court exercises its discretion in exceptional circumstances.

Furthermore, that the Applicant did not include the Certificate of Registration of its alleged “LEXUS & Device” trademark in Class 12, in the List and Copies of Documents to be relied upon at the trial and did not include it in the Additional List and Copies of Documents, thus, it never intended to tender the Exhibits at the trial, and its decision to seek leave to tender them now in this Court is just an after-thought.

It also contends that the Exhibits do not qualify as fresh evidence and citing Anatogu & Ors v. Iweka II & Ors. (1995) LPELR-484(SC) and Willoughby v. IMB (1987) LPELR-3495(SC) on what is fresh evidence, it argued that the Exhibits do not qualify as fresh evidence because:

– Exhibit TMC1 is the Certification of Registration dated 24/1/1997.

– Exhibit TMC2 is the Certificate of Registration dated 10/7/1997.

– Exhibit TMC3 is the Certificate of Registration dated 6/12/2010.

– These documents were in existence prior to the trial of this matter.

– The Writ of Summons commencing this Suit was filed on 12/12/2014.

– Exhibits TMC1 – TMC3 do not relate to something that has happened after the trial of this case, and they did not come to the knowledge of the Applicant after the trial of the matter at the Federal High Court.

– The Exhibits did not become newly available and obtainable.

– The Exhibits have at all material times been in the Applicant’s custody prior to the trial, during the trial, and after the trial of this matter.

– The Exhibits were at all material times in the archives/database of the Applicant, who deposed in Paragraph 9 of the Affidavit in support of the Motion on Notice for leave to adduce fresh evidence that the Certificates were located from its archives/database.

– The Applicant could have easily obtained certified true copies of the Exhibits from the 2nd Respondent.

– There is no evidence that the Applicant ever applied for the certified true copies of the Exhibits during the trial of this case.

– The 2nd Respondent is the statutory custodian of the Exhibits, which the Applicant seeks to tender, and the documents have been available to the members of the public at all material times.

– The Applicant never tendered to rely on Exhibits TMC1 – TMC3 at the trial of this case as shown in Exhibits P1-P2.

– The Exhibits sought to be tendered ought to have been adduced to establish pleaded facts at the trial of this case before the trial Court.

– The Applicant had the opportunity to tender Exhibits TMC1-TMC3 at the trial High Court but deliberately refused, neglected, and failed to do so.

It argued, citing Statoil Ltd. v. Inducon Ltd (2018) LPELR-44387 (SC) that Parties are required to adduce the evidence they need at the trial, and where any of them fails to utilize such opportunity, such evidence will hardly find its way into the body of evidence on appeal; and that the Exhibits are not new and were available for use by the Applicant, who failed to utilize the opportunity that it had at the lower Courts.

It further submitted that strangely, the Applicant never searched its archives/database when the matter was at the Court of Appeal, and suddenly discovers the documents after the hearing of the Appeal and now seeks to tender them at this Court as additional/fresh evidence; that it failed to meet the level of reasonable diligence expected from an Applicant; and that it never intended to tender them because they were controversial, and were not included in the Lists of Documents.

Furthermore, that it could easily have obtained them from the 2nd Respondent, who is the statutory custodian of Register of Trademarks in Nigeria, in line with Section 2 of the Trademarks Act; and that the Applicant ought to have done any of the following to establish that it in fact exercised reasonable diligence to obtain the said documents:

– Apply for and obtain the Certified Copies of Exhibits TMC1-TM3 from the 2nd Respondent during the trial of this case.

– Apply to the 2nd Respondent for an extract of the Register of Trademarks relating to the entries on the registration of the “LEXUS & DEVICE” which it claimed it had in Class 12.

– Subpoena the Registrar of Trademarks, who was a party to the Suit, to produce the Certification of Registration.

​

It argued that the Applicant never did any of the above, which shows that this Application is an after-thought designed to repair the bad case that it presented at the lower Courts; and that the procedure for admitting further evidence is not at the disposal of an indolent litigant, and cannot be used for the repair of a bad case at the end of the trial.

It also contends that the admission of those Exhibits in this Court will not have an important effect on this case because the description of goods in respect of which it, the Respondent, registered “LEXUS” trademarks in Classes 9 and 11 is different from the goods in Class 12 and Applicant’s use of “LEXUS” for goods in Class 9 will still constitute an infringement of its own registered “LEXUS” trademarks in Class 9, thus, the admission or otherwise of the Exhibits in evidence will not have any effect on the outcome of the Appeal, and there is nothing to show that they will assist this Court in resolving issues in the Appeal.

It argued that the Exhibits are not credible as the description of goods for which Exhibit TMC1 was purportedly registered particularly “parts of and fittings, accessories and components for all the aforesaid goods” is extraneous and goes far beyond the description of goods in Class 12 as contained in the Trademarks Act and Nice Convention of 1987, and this discrepancy has impugned the credibility of the Exhibit.

​

It submitted that if it had been tendered at the trial, it would have cross-examined the Applicant’s witness, as well as the 2nd Respondent, on the credibility, validity and compliance of the said document with extant laws, citing Abu v. Ahmed (2016) LPELR-41327. Furthermore, that the Exhibits would not have influenced the trial Court’s judgment because they were not material and never formed part of the crux of the issues at the lower Courts; and assuming without conceding that the Applicant has a valid registration of “LEXUS & Device” in Class 12, it can still infringe and violate its own LEXUS trademarks in Class 9.

Its contention is that this Application was designed to overreach it, as the Applicant had the opportunity to tender the Exhibits at the trial, where it could have cross-examined its witness, but it failed to tender the documents because of indolence; that the impact of the Exhibits on the case is insignificant; that the credibility of the Exhibits is in issue and will open room for cross-examination before this Court; and that admission of the Exhibits without affording it the opportunity to cross- examine the Applicant’s witness on the credibility of the documents, will violate the principles of fair hearing enshrined in the Constitution.

The Applicant argued in its Reply on Points of Law that the relevant date is not the date of registration and renewal of the Certificates, but the date the Certified True Copies of the said Certificates were issued; that in line with the decision in Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC), Copies of the Certificates were located during the appeal at the Court of Appeal and certified copies were issued in 2018, when the appeal was pending in this Court; that the said Exhibits are therefore fresh evidence to the extent that they were only obtained after the judgment of the Court of Appeal was issued in its favour in 2018.

It also cited the Court of Appeal’s decision Ombugadu v. CPC & Ors (2012) LPELR-8602(CA) that was affirmed by this Court in CPC & Anor v. Ombugadu & Anor (2013) LPELR-21007(SC), and submitted that the person with custody of the documents was the 2nd Respondent, who declined to issue a certified copy until a photocopy of the document is presented. Therefore, there was no way that it could by reasonable diligence produce the copies of the certificates that were missing from its records; that it continued with its search until it located the copies from its archives, whereupon, it filed this Application in this Court.

Furthermore, that the evidence would have influenced the decision of the Court of Appeal, which went ahead to hold that the purported evidence of infringement was a good in Class 12 and not a product in Classes 9 & 11; and the implication of that finding is that it would have reinforced a case of non-infringement, citing Hip Foon Hong v. Neotia & Co. (1918) AC 888 that was endorsed in Ombugadu v. CPC (supra).

On whether the documents are credible, it argued that all that the Respondent has done is “to prematurely controvert the documents”, which are credible and believable, being certified true copies of public documents that can be tendered from the bar, and 2nd Respondent, who issued them has not challenged the documents in any manner; and its puerile attempt to controvert facts in the document is not only premature, but an attempt to waste the precious time of this Court.

​In response to the Respondent’s argument on description of goods, it submitted that Class 12 description of goods clearly covers “Parts of and fittings, accessories and components for all the aforesaid goods” with respect to vehicles, which would include a car stereo, and is the evidence that the Respondent is trying with all its strength to endorse, when neither Class 9 nor Class 11 description of goods refers in any way to a car stereo as a good; that a car stereo is an integral part of the apparatus for a vehicle and readily fits into Class 12, and that goods in Classes 9 & 11 does not include vehicles spare parts like a car stereo, therefore, the reference to “parts of and fittings, accessories and components for all the aforesaid goods” in the certified true copies of the said trade mark registrations and renewal is credible and in order.

As to the Respondent’s argument on fair hearing, it submitted that the said Exhibits are certified copies of public documents, which can be tendered from the bar, without cross-examination, citing Kawu v. Minister, FCT (2016) LPELR-41142(CA), Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 & Okiki II v. Jagun (2000) 5 NWLR (Pt. 655) 19.

​I have considered the pros and cons of granting this Application and a major factor that weighs heavily in the Applicant’s favour is that the documents sought to be tendered were pleaded, and the Respondent admitted in its Reply to the Applicant’s Statement of Defence that the Applicant had “registered the Trademark to LEXUS (word) in Class 12”. This is a crucial factor in the scheme of things because the Application would not stand a chance, if this were not the case – see Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94, wherein Karibi-Whyte, JSC, said:

Where evidence is available and could with reasonable care and diligence be made available to the Applicant at the time of the trial, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if [he] referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it.

It is trite law that the Court must always consider whether there are exceptional circumstances to warrant granting the Application and, whether this would be in furtherance of the justice of the case – see Owata v. Anyigor (supra), wherein Karibi-Whyte, JSC, also observed:

It is in the interest of justice, the efficient and effective administration of justice, and to minimize prolongation of litigation, to ensure that evidence, which ought to be admitted at the trial, but was not because diligent search did not lead to its recovery, is received in evidence on appeal When subsequently discovered, and is sought to be admitted. The maxim rei publicae ut sit finis litium is not only a statement of public policy, it is a principle of justice of undoubted relevance in all cases. It will not be justice to refuse to receive relevant and material evidence relied upon by Parties.

In this case, the first question that rears its head relates to “reasonable diligence,” which is an alternate term for due diligence, and it means “the care and attention that is ordinarily exercised by a reasonable and prudent person under the circumstances” – definitions.uslegal.com.

The Applicant averred in paragraphs 7 & 8 of its Affidavit that it’s Solicitors were unable to tender the said Certificates at the trial Court, as they were missing from its records, and though they “conducted a painstaking search in its office”, the Certificates could not be located; and they attempted “with all reasonable diligence” to obtain certified copies from the second Respondent, but did not succeed in doing so, because provision of the missing copies of the said Certificates were a necessary pre-condition to obtain certified copies from the Registry.

The Respondent argued that it could have applied and obtained the certified true copies from the second Respondent or subpoena the Registrar to produce them. But the point being made is that Applicant found itself in a Catch-22 situation, which is described as an impossible situation because you cannot do one thing until you do another thing, but you cannot do the second thing until you do the very first thing.

What is the point of the subpoena if second Respondent had to see copies of the missing Certificates before issuing certified copies? As it is, the Applicant’s assertion that it attempted with “all reasonable diligence” to obtain certified copies of the Certificates is not disputed.

The Respondent also raised a hue and cry over the dates on the said Certificates, but as the Applicant submitted, it is the date that the certified true copies were issued that matters, and they were issued in 2018 when the Appeal was pending in this Court – see Dike-Ogu v. Amadi (supra), cited by the Applicant, wherein this Court admitted the certified true copy of a 1928-1931 Report issued after the trial in 2010.

Of course, the said additional evidence, if admitted, would have an important effect on the case. For starters, it would put the records straight because the two lower Courts commented on the fact that the Applicant did not show the existence of a Lexus Trademark in Class 12.

The trial Court went as far as to say that since it failed to tender any proof of the said registration, the Applicant “should have simply admitted all the averments of the Plaintiff in its Statement of Claim”, and even as the Court of Appeal found in its favour, it observed that:

There is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in Class 12.

More importantly, the fact that the Respondent admitted in its Reply to the Applicant’s Statement of Defence that Applicant registered the “Trademark to LEXUS (word) in Class 12”, makes it imperative that the documents, which are “apparently credible” in the sense that they are, thereby, capable of being believable, must be admitted in evidence.

There is no question from the comments of the lower Courts that the said additional evidence, which are indeed material and weighty, could have influenced the judgment of the trial Court, and would paint a better picture of the Court of Appeal’s Judgment in the main Appeal.

Overall, I am not swayed by any of the Respondent’s arguments against the Application. The Application is not an afterthought and far from being used for the repair of a bad case after the trial of the case; it will provide a level playing field for a proper adjudication of this case.

It is, therefore, in the interest of justice that this Application be granted as prayed and it is so granted. The Applicant is granted leave to adduce additional evidence by tendering the following as Exhibits:

(a) Certificate of Registration dated 14/1/1997, and numbered RTM 53395 for LEXUS & DEVICE in Class 12.

(b) Certificate of Renewal dated 10/7/1997, and numbered RTM 53395 for LEXUS & Device in Class 12.

(c) Certificate of Renewal dated 6/12/2010, and numbered RTM 53395 for LEXUS & Device in class 12.

The said Certificates of Registration/Renewal are hereby admitted as additional evidence for the determination of the substantive Appeal.

Application granted as prayed. There will be no Order as to costs.

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SC.561/2018(R)