Before Their Lordships
OBANDE FESTUS OGBUINYA, Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU, Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU, Justice of The Court of Appeal of Nigeria
Between
AIRTEL NETWORKS LIMITED Appellant
AND
PLUS LIMITED Respondent
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OGBUINYA, J.C.A.: (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Lagos State, holden in Ikorodu (hereinafter addressed as “the lower court”) coram judice: O. A. Williams, J., in suit No. LD/487/2012,delivered on 4th October 2016. Before the lower court, the appellant and the respondent were the defendant and the claimant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant, which had suffered nomenclature metamorphosis, is a telecommunication company that provides wide spectrum of telephony and communication services in Nigeria. The respondent is a company that deals in, inter alia, sales and distribution of telephony products, services and accessories. By dint of different agreements, the appellant appointed the respondent the distributor, dealer and trade partner for its telecommunication services through the sale of its pre-paid products. The business relationship dates back to2001. The respondent claimed that it discharged its obligations, in the agreements, efficiently and diligently which earned it awards from the appellant. In consideration of the respondent’s telephony services, it was entitled to commissions, bonuses, incentives, etcetera, from the appellant.
Later on, there arose disagreement between them over the alleged indebtedness of the respondent to the appellant. When the disagreement could not be resolved, the appellant terminated the respondent’s dealership with it. In consequence, the respondent engaged a firm of forensic accountants to determine their financial positions to each other. The report of the forensic accountants, which was served on the appellant, showed that the appellant was indebted to the respondent. Sequel to that, the respondent beseeched the lower court, via a writ of summons filed
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on 30th March, 2012,and tabled against the appellant, the following reliefs:
a. The sum of N4,888,434,208.92 (Four Billion Eight Hundred and Eighty eight four hundred and thirty four and Eight Naira Ninety Two Kobo) being the cumulative amount of commissions and other varieties of income, bonuses, benefits, etc. due to be paid or refunded by the defendant to the claimant.
b. An order directing the defendant to deliver to the claimant forthwith, an account or statement of the call logs in respect of all the active subscribers brought into the defendant’s network by the claimant and a further order directing the defendant to immediately thereupon pay to the claimant all the commissions and benefits which the claimant shall be found to be entitled to on the said call-logs.
In reaction, the appellant joined issued with the respondent and denied liability. In its pleading, it raised defences of admission of indebtedness, estoppel and statute-bar against the suit.
Following the discordant claims, the lower court had a full-scale determination of the case. In proof of the claim, the respondent fielded two witnesses, CW1 and CW2. In disproof of it, the appellant called one witness, DW1. Loads of documentary evidence were tendered before the lower court At the closure of evidence, the parties, through their counsel, addressed the lower court in the manner required by law. In a considered judgment, delivered on 4th October, 2016, found at pages 1386-1398, volume3, of the record, the lower court granted the respondent’s claim.
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The appellant was incensed with the decision. Hence, on 6thOctober, 2016, the appellant lodged a 6-ground notice of appeal, copied at pages 1399-1403, volume 3, of the record, wherein it prayed this court for:
(a)An order allowing this appeal.
(b) An order setting aside in its entirety the judgment of the Lagos State High Court coram Honourable Justice A. O. Williams (Mrs.) in suit No. LD/487/2011, dated the 4th day of October, 2016.
(c) Further or other orders the Court of Appeal may, deem fit to make in the circumstances.
Thereafter, the parties, through their counsel, and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this court. The appeal was heard on 24th June, 2020.
During its hearing, learned appellant’s counsel, A. A. Adetunji, SAN adopted the appellant’s brief of argument, filed on 1st March,2017, but deemed properly filed on 30th April, 2018, and the appellant’s reply brief filed on 13th March, 2019, as representing his arguments for the appeal. He urged the court to allow it. Similarly, learned respondent’s counsel, Dotun Oduwobi, Esq., adopted the respondent’s brief of argument, filed on 12th July, 2019 as forming his reactions against the appeal. He urged the court to dismiss it.
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In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
Whether, in respect of the respondent’s claims covering the period 2001-2006, the trial court rightly held that the respondent’s suit was not statute-barred.
Whether the respondent’s admission of indebtedness to the appellant was binding on the respondent and constitute estoppel against the respondent.
Whether the learned trial Judge was right in accepting and/or relying on exhibit C1 and in doing so on ground that the appellant did not challenge it.
In the respondent’s brief of argument, learned counsel crafted three issues for determination, namely
Whether the trial court was right to have held that the respondent’s suit was not statute-barred.
Whether the appellant’s plea of and purported reliance on estoppel is well-founded.
Whether the lower court’s finding that exhibit C1 was not challenged, is correct, and whether its reliance on that document is in any way impeachable.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issues can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant, the undoubted owner
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of the appeal.
Arguments on the issues:
Issue one
Learned appellant’s counsel submitted that a statement of claim would be used to determine the existence of an action and when it arose. He relied on Opia v. INEC (2014) LER (SC 16/2013),(2014) 7 NWLR (Pt. 1407) 431; Elabanjo v. Dawodu (2006) 15NWLR (Pt. 1001) 76; (2006) 9 NIL 221; Kofa v. Kaita (2011)LPELR -8952 (CA); Kasandubu v. Ultimate Petroleum Ltd. (2008)7 NWLR (Pt. 1086) 274. He stated that parties are bound by their pleadings. He cited Agala v. Okusin (2010) 10 NWLR (Pt. 1202)412; Okafor v. INEC (2010) 3 NWLR (Pt. 1180) 1.He noted thatthe suit was for breach of contract and account that arose between2001-2006. He claimed that the suit was instituted six years after the cause of action accrued contrary to the statutory precedent and made statute barred. He cited section 8 of the Limitation Law of Lagos State; Odogwu v. Ilombu (2007) 8 NWLR (Pt. 1037) 488;Okereke v. Yar’adua (2008) 12 NWLR (Pt. 1100) 95; Adekoya v. FHA (2008) LPELR-105 (SC), (2008) 11 NWLR (Pt. 1099) 539;Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Ajibola v. Kolawole (1996) 1 NWLR (Pt. 476) 22; Akibu v. Azeez (2003) SC(Pt. 11) 71, (2003) 5 NWLR (Pt. 814) 643.
Learned counsel posited that in contract of payment in installment, cause of action of each payment accrued on its due date and time would begin to run from that date against the party entitled to receive it. He referred to Olaogun Enterprises Ltd. v. S.J. & M. (1992) 4 NWLR (Pt. 235) 361. He reasoned that knowledge would not be necessary once time began to run. He took
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the view that the lower court wrongly took knowledge into account thereby amending section 8 of the Limitation Law contrary to the law. He cited Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12NWLR (Pt. 781) 227; Tukur v. Govt., of Gongola State (1988) 1NWLR (Pt. 68) 39; Stork v. Frank Jones (Tripten) (1978) 1 WLR231; Awolowo v. Shagari (1979) NSCC 87; Okumagba v. Egbe(1965) 1 All NLR 621. He persisted that the lower court lacked the jurisdiction to hear the suit because it was not initiated by due process of law and upon fulfillment of conditions precedent. He cited Madukolu v. Nkedilim (1962) 2 All NLR 581, (1962) 2SCNLR 341; Miscellaneous Offences Tribunal v. Okoroafor (2001)18 NWLR (Pt. 745) 295.
For the respondent, learned counsel conceded that statement of claim would be used to determine statute-bar. He relied on Akinsete v. Kiladejo (2013) LPELR-20215 (CA); Emeka v. Chuba-Ikpeazu(2017) LPELR- 41920 (SC), (2017) 15 NWLR (Pt. 1589) 345;Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398. He stated when time would begin to run for a cause of action as noted in Osuma v. Joinery Crafts & Moulding Nigeria Ltd. (2013) LPELR- 21106 (CA), (2014) 6 NWLR (Pt. 1402) 17.He observed that the failure to file a reply was not harmful to the respondent’s case. He cited Akinsete v. Kiladejo (supra). He described the point on actual knowledge as a fresh issue which should be discountenanced. He said, in the alternative, that the judgment did not contain the imputation of knowledge. He postulated that the appellant had the burden to prove the statute-bar. He opined that the evidence of the appellant’s DW1 showed that the relationship was one single unseverable rolled-over account which supported the lower court’s findings. He declared the case of Olaogun Enterprises Ltd. v. S. Y.& M (supra) as inapplicable.
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On points of law, learned appellant’s counsel submitted that there were documentary evidence which should have been used to test the evidence of DW1 on a single unseverable relationship. He relied on Lion Buildings Ltd. v. Shadipe (1976) 12 SC 135; Fashanu v. Adekoya (1974) 6 SC 83; Udo v. Eshiet (1994) 8 NWLR (Pt. 363) 483. He maintained that the oral evidence would not contradict the documentary evidence which must be preferred and given literal interpretation. He cited Kwara Hotel Ltd. v. Ishola (2002) 9 NWLR(Pt. 773) 604; Durojaiye v. Continental Feeders (2001) 10 NWLR(Pt.722) 657; UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385;sections 125 and 128 of the Evidence Act, 2011. Solicitor General W.N. v. Adebonojo (1971) 1 ALL NLR 178; A.-G., Rivers v. A.-G.,Akwa Ibom State (2011) 8 NWLR (PI. 1248) 31. He concluded that that evidence of DW1 which was obtained from cross-examination, was on unpleaded facts and must be discountenanced. He referred to Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130; Ita v. Ekpenyong (2001) 1 NWLR (Pt. 695) 587; Akomolafe v. Guardian Press Ltd. (2010) 1 SC (Pt.1) 58, (2010) 3 NWLR (Pt. 1181) 338.
Issue Two.
Learned appellant’s counsel contended that the lower court was wrong to hold that the respondent did not admit the debt nor was it stopped from claiming its debt from the appellant. He relied on the statement of claim and exhibit C21. He stated that the appellant relied on the representation in exhibit 21 and continued doing business with it. He observed that the respondent admitted the facts in paragraphs 6-13 of the appellant’s statement of defence when it filed no reply to it. He relied on Kezie v. Iwuoha (1998) 8NWLR (Pt. 563) 554; Adesanoye v. Adewole (2000) 9 NWLR (Pt.671) 127; Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR(Pt. 1053) 37; Nwizuk v. Eneyok (1953) 14 WACA 354; section123 of the Evidence Act, 2011. He added that the respondent did not cross-examine the appellant’s witness on those facts and were deemed admitted.
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He cited Cappa & D’ Alberto v. Akintilo (2003) 9 NWLR (Pt.824) 49; Dimlong v. Dimlong (1998) 2 NWLR (Pt. 538) 381; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; Gaji v. Paye (2003) 12MJSC 76, (2003) 8 NWLR (Pt. 823) 583; Owners of MN Gongola Hope v. Smurfit cases Ltd. (2007) 9 MJSC 90, (2007) 15 NWLR(Pt. 1056) 189; Ijebu- Ode LGA v. Balogun (1991) 1 NWLR (Pt.166) 136; American Cyanamid Co. Ltd. v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt. 171) 15; Offorlete v. The State (2000) 12NWLR (Pt. 681) 415. He described the lower court’s finding on the point as perverse which should be set aside. He referred to A.-G., Fed v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; G-C Oil Mill Ltd. v. AS-Ahel Int. Mart Pro. Ltd. (2000) 4 NWLR (Pt. 652) 310.
It was further contended that the appellant continued to dobusiness with the respondent based on its representations, arising from the statements of accounts and performance reviews sent to it, and it was estopped from denying its indebtedness to the appellant. He stated the meaning of estoppel as noted in Egba v. Ogudo (2000)6 SC (Pt. 1) 133; Yoye v. Olubode (1974) 9 NSCC 49.He narrated the principles of estoppel. He relied on Iga v. Amakiri (1976) 11 SC12; Okonkwo v. Kpajie (1992) LPELR-2483 (SC), (1992) 2 NWLR(Pt. 226) 633; Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697; Udev. Nwara (1993) 2 NWLR (Pt. 278) 638; Horicon Ltd. v. Wasurum(1987) 4 NWLR (Pt. 66) 646; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571; Ukaogbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127; Ikebala v. Ojosipe (1988) 4 NWLR (Pt. 86) 119; Sowemimo v. Awobajo(1999) LPELR-6729 (CA), (1999) 7 NWLR (Pt. 610) 335; section169 of the Evidence Act, 2011. He added that the form of admission/representation, formal or informal, was irrelevant. He referred to Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153; section 27 of the Evidence Act, 2011.
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Learned counsel submitted that the lower court raised the issue of formal or informal admission suo motu which breached the appellant’s right to fair hearing. He, cited Adegoke v. Adibi(1992) 5 NWLR (Pt. 242) 410; A.G. Leventis Plc. v. Akpu (2007)9 MJSC 134, (2007) 17 NWLR (Pt. 1063) 416; Ndigwe v. Nwude(1999) 11 NWLR (Pt. 626) 314; Usman v. Garke (1999) 1 NWLR(Pt. 587) 466; Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684;.Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177. He listed certain undisputed facts and insisted, based on them, that the respondent was estopped from challenging the statements of account showing its indebtedness. He concluded that the appellant ought not benefit from his own wrong-Nullus Commodum capare potest de injuriasuo propria. He cited Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910)241; Seriki v. Are (1999) 3 NWLR (Pt. 595) 469.
On behalf of the respondent, learned counsel argued that the alleged admission was not specific on the sum of indebtedness to found estoppel in favour of the appellant. He relied on National Bank of Nigeria v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284)643. He explained that exhibit C21 did not show any specific sum of money owed to the appellant. He highlighted, the ingredients of estoppel as noted in Iga v. Amakiri (1976) 11 SC 12.He asserted that the respondent did not knowingly make any false statement and the appellant did not alter its position or suffer any damage. He explained that exhibit C21 was an honest and innocent letter of mistaken impression of indebtedness. He said exhibit C1 showed that the respondent was not indebted to the appellant while exhibitC2 showed that the appellant did not continue business with it after exhibit C21. He added that exhibit C5 terminated the business relationship. He maintained that there was no evidence that proved estoppel after pleading it. He cited Lawal v. UBN Plc (1995)LPELR-1762 (SC); (1995) 2 NWLR (Pt. 378) 407.
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Learned counsel posited that the lower court’s finding on the non-pleading of the statement of accounts and monthly performance reviews was not appealed against and binding on the appellant. He added that those statement of accounts were rejected in evidence in a ruling which the appellant did not appeal against and deemed binding on it. He pointed out that the undisputed facts, listed by the appellant, were based on those rejected documents and so impermissible.
Learned counsel further argued that the appellant raised the issue of admission in its pleading so that the issue of informal or formal admission, was not raised suo motu. He stated that the appellant did not go to equity with clean hands with respect to the estoppel. He explained that the appellant frustrated the officers of court from carrying not the order directing the Institute of Chartered Accountants of Nigeria (ICAN) to appoint. a reputable firm of chartered accountants to reconcile accounts of the parties. He concluded that the finding was not appealed against.
On points of law, learned appellant’s counsel declared the case of National Bank of Nigeria Ltd. v. Guthrie (Nig) Ltd. (supra) as inapplicable because of dissimilar of facts. He cited Iwuno v. Dieli(1990) 5 NWLR (Pt. 149) 126; Fawehinmi v. NBA (No.2) (1989)2 NWLR. (Pt. 105) 558; Adegoke Motors v. Adesanya (1989) 3NWLR (Pt. 109) 250.
Issue Three
Learned appellant’s counsel submitted that the lower court wrongly found that the appellant did not deny or attack the report of the forensic consulting firm, exhibit C1, when it did so in
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paragraphs20-29 of its statement of defence. He claimed that the respondent did not file a reply to those averments and it was deemed to have accepted them. He relied on Kezie v. Iwuoha (supra) Adesanoye v. Adewale (supra). He noted that the respondent’s entitlement in the agreements was 4% not 37% used in exhibit C1. He stated that parties and courts are bound by the terms of their contract. He cited Katto v. CBN (1999) 6 NWLR (Pt. 607) 390; Savannah Bank Plcv. Ibrahim (2000) 6 NWLR (Pt. 662) 585; Osun State Government v. Ode (2007) 29 NSCQR 763; Baker Marine Nig. Ltd. v. Chevron Nig. Ltd. (2006) 12 MJSC 174, (2006) 13 NWLR (Pt. 997) 276;Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR(Pt. 192) 388; UBN v. Ozigi (supra); Obikoya v. Wema Bank Ltd.(1991) 7 NWLR (Pt. 201) 119. He explained that the lower court went outside the terms of the contract when it accepted the 37% in exhibit C1. He said that the exhibit C1 was inconclusive and the lower court ought to have weighed it in favour of the appellant. He described the lower court’s finding as perverse.
Learned counsel posited, in the alternative, on non-challenge of exhibit C1, that the lower court was wrong in relying on exhibitC1. He stated that he who asserts must prove on balance of probability; He relied on sections 131 and 133 of the Evidence Act,2011; Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; Robins v. National Trust Co. Ltd. (1927) AC 515; Ezemba v. Ibeneme (2004) LPELR-1205(SC), (2004) 14 NWLR (Pt. 894) 617. He noted that exhibit C1was an after thought because it was made after the termination of the contract. He reasoned that exhibit C1 was an expert report which the lower court failed, in its duty, to evaluate, test for its credibility and weigh its cogency before relying on it: He cited A.-G., Oyo State v. Fairlakes Hotel (No.2) (1989) 5 NWLR (Pt. 121)255; Ogiale v. Shell Petroleum Dev. Co. (Nig.) Ltd. (1997) 1 NWLR(Pt. 480) 148; Uchegbu v. The State (1993) 8 NWLR (Pt. 309) 89.He insisted that the lower court did not subject the exhibit C1 to scientific analysis or
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‘criteria and it was valueless.
For the respondent, learned counsel contended that the appellant, which did not tender any document, did not adduce evidence to support its pleadings and same were abandoned. He relied on Olusanya v. Osineye (2013) LPELR-20641 (SC), (2013)12 NWLR (Pt. 1367) 148. He noted that the appellant admitted receiving exhibit C1 and that it did give the expert any records requested from it. He described the appellant’s act as admission against interest which needed no further proof. He cited Onigbinde v. S.B. Olatunji Global Ltd. (2015) LPELR-25943 (CA). He explained that the inconclusiveness of exhibit C1, as shown by CW1, was not on findings on it, but on the appellant’s refusal, make available its record to the forensic firm of accountants. He opined that the appellant had the report 21/2 years before the commencement of the suit and did nothing about it. He stated that the appellant failed to call or tender expert evidence to contradict exhibit C 1 and the address of counsel would not be substitute for such evidence. He cited Omisore v. Aregbesola (2015) LPELR-24803 (SC), (2015) 15NWLR (Pt. 1482) 205; Niger Construction v. Okugbeni (1987) 4NWLR (Pt. 67) 787; Otti v. Otti (1992) 7 NWLR (Pt. 252) 187;Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) 735; Yau v. Dikwa(2000) LPELR-10138 (CA), (2001) 8 NWLR (Pt. 714) 127. He stated the meaning of an expert as noted in Omisore v. Aregbesola(supra). He maintained that exhibit C1 was challenged and the lower court right ascribed value to it. He referred to Chabasaya v. Anwasi (2010) LPER -839 (SC), (2010) 10 NWLR (Pt. 1201) 163.
On points of law, learned appellant’s counsel argued that the appellant gave evidence in support of its pleadings in the evidence-in-chief of its DW1. He relied on order 32 of the High Court of Lagos State (Civil Procedure) Rules, 2012.
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Resolution of the issues
It is germane to place on record, upfront, that a flurry of documentary evidence were furnished before the lower court by the feuding parties. Interestingly, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004)17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee(Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10NWLR (Pt. 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325)51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354) 522; CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v.Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015)8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR(Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506)529; C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt.1533)487; Emeka v. Okorafor (2017) 11 NWLR (Pt. 1577) 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V. (Nig.) Ltd. v. NPA(2019) 1 NWLR (Pt. 1652) 163; Olomoda v. Mustapha (2019) 6NWLR (Pt. 1667) 36.I will tap from this co-ordinate jurisdiction in the appraisal of the legion of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the three of nagging issues in this appeal.
In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. This is more so as the first issue borders on jurisdiction, a numero uno in adjudication, which the law compels the court to accord prime attention in any proceedings. To this end, I will take off with the treatment of issue one. The meat of the issue
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is plain and canalised within a narrow compass. It chastises the lower court’s assumption of jurisdiction over the respondent’s claim, which mothered the appeal, when itwas statute-barred by limitation law. It is a subtle invitation to this court to consider/dissect the governing principles and ingredients of limitation law within the ambit of discharge/liquidation of indebtedness.
As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No.2)(1987) 1 NWLR (Pt. 47) 1; Nasir v. C.S.C., Kano State (2010) 6NWLR (Pt. 1190) 253; Cotecna, Int’ Ltd v. Churchgate (Nig.) Ltd.(2010) 18 NWLR (Pt. 1225) 346; A-G., Adamawa State v. A-G., Fed. (2014) 14 NWLR (Pt. 1428) 515; Mulima v. Usman (2014)16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt.1489) 490; N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656)247; Daniel v. Ayala (2019) 18 NWLR (Pt. 1703) 25.
The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions and to preserve the evidence by which a defendant will defend the action, see AremoII v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Olagunju v. PHCNPlc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Awolola v. Gov., Ekiti State (2019) 6 NWLR (Pt. 1668) 247; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245; APC v. Lere (2020) 1 NWLR (Pt.1705) 254.
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The orthodox judicial formula for gauging limitation legislation is simple. A court is enjoined to examine the filed writ of summons or the originating process, either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred. Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398; Aremo II v. Adekanya(supra); Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76;Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364; Hassan v.Aliyu (2010) 17 NWLR (Pt. 1223) 547; Nweke v. UNIZIK, Awka(2017) 18 NWLR (Pt. 1598) 454; Saki v. APC (2020) 1 NWLR (Pt.1706) 515. A successful plea of limitation law, as a shield, by an opposing party occasions two harmful effects against a plaintiff’s action. Firstly, he becomes a destitute of the right of action and judicial relief. In a word, it extinguishes his cause of action, see Egbe v. Adefarasin (No. 2) (supra); Nasir v. C.S.C., Kano State (supra);Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407;INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74; Okafor v. B.D.U., JosBranch (2017) 5 NWLR (Pt. 1559) 385. Secondly, the court ceases to be crowned with the requisite jurisdiction to entertain his action. See Owners of the MV “Arebella” v. NAIC (2008) 11NWLR (Pt. 1097) 182; Olagunju v. PHCN Plc. (supra); J.F.S. Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; INEC v. Enasito (2018) 2 NWLR (Pt. 1602) 63; Toyin v. Musa (2019) 9NWLR (Pt.1676) 22.
Now, the appellant staked its onslaught on the provision of section 8 of the Limitation Law of Lagos State. Owing to its royal status in the appeal, it is imperative to pluck the provision out, whence it is domiciled in the statute book, verbatim ac literatim, as follows:
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1.The following actions shall not be brought after the expiration of six years from the date on which the cause of action occurred-
a. Actions founded on simple contract
b. Actions founded on quasi-contract
5.An action for an account shall not be brought in respect of any matter which arose more than, six years from the commence of the action.
The provision does not harbour any ambiguity. On this score, the law compels the court to accord them their ordinary grammatical meanings without any interpolation, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; P.D.P. v. Okorocha (2012)15 NWLR (Pt. 1323) 205; Kawawu v. P.D.P. (2017) 3 NWLR (Pt.1553) 420; Setraco (Nig.) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558)280; Adeokin Records v. MCSCN (2018) 15 NWLR (Pt. 1643) 550;Ecobank v. Honeywell Flour (2019) 2 NWLR (Pt. 1655) 55.Iwill pay due respect to this cannon of interpretation in order not to annoy the law.
Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001)18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A. T. Ltd. (2006) 10 NWLR(Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma(2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi(No.2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra);
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Lau v. PDP (supra); Azubuogu v. Oranez; (supra); Agi v. PDP (2017) 17NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6NWLR (Pt. 1615) 314; Roe Ltd: v. UNN (2018) 6 NWLR (Pt. 1616)420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons, the affidavit’ in support serves as the statement of claim, see. Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka(2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt.1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. It must be stressed, that it is only a plaintiff’s statement of claim or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a court, see Izenkwe v. Nnadozie (1953) 14 WACA301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 61; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440.
In an abiding loyalty to the dictate of the law, I have consulted the record: the spinal cord of every appeal. My first port of visit is the abode of the respondent’s 21 paragraph statement of claim, the legally-accepted yardstick to gauge statute-bar. It colonises pages 3-8, volume 1, of the record. I have perused it with the finery of a tooth comb. Admirably, it is rebellious to equivocation. In paragraph 7 thereof, the respondent averred that between 2001 and January, 2011, it recorded a total sales turnover of about N14 billion with the appellant. In paragraphs 12, 13 and 14, the respondent pleaded three correspondence, written on 9th, 16th and 13th March,2011, exchanged between the contending parties. The three missive3 share a common mission: to resolve the respondent’s alleged indebtedness to the appellant: the casus belli in the suit. In the twilight of paragraph 14 of it, it was deposed that the appellant wrote the letter of 25th May,
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2011 to terminate the contractual relationship between the parties. It stems from these foremost averments, that the parties enjoyed viable existential contract up until May, 2011.Indubitably, the respondent became aware of the extermination of their contractual relationship receipt of the killer letter of 25th May,2011. For the purposes of “limitation statutes, a cause of action begins to run when a party becomes aware of an erosion of his right and there exists a person to be sued (the violator) to protect the encroached right, see Woherem v. Emenuwa (supra); Owie v. Ighiwi(2005) 5 NWLR (Pt. 917) 184; UBN Plc v. Umeoduagu (2004) 13NWLR (Pt. 890) 352; Oketor v. B.D.U., Jos Branch (2017) 5 NWLR(Pt. 1559) 385; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017)7 NWLR (Pt.1563) 42; Zubair v. Kolawole (2019) 11 NWLR (Pt.1682) 66.In contract, time ensues the moment there is a breach of it by an adversary, see Muomah v. Spring Bank Plc (2009) 3 NWLR(Pt. 1129) 553.
It admits of no argument, that the respondent’s suit, which parented the appeal, is a classic exemplification of simple contract. It is, also, a quintessence of an action for account. As it parades these twin features, it falls, squarely within the province of the sacrosanct provision of section 8 of the Limitation Law of Lagos State. It was instituted on 30th March, 2012 as manifest from the dawn of the mountainous records. I have, in paying due obeisance to the injunction of the law, situated the two dates: the 25th May, 2011, when the cause of action germinated, and the 30th March,2012, the birthday of the respondent’s action. The rational behind the juxtaposition is plain. It is to ascertain if the respondent’s claim, which is in the heat of expunction/decimation, respected or flouted the provision of section 8 of the Limitation Law of Lagos State on the timetable stipulation for its institution. Nigeria is a user of the Gregorian calendar, a calendar of general application. By the Gregorian calendar computation
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from May, 2011 March,2012, is a period of about ten months. It cannot be gainsaid, that the period of ten months is far less than the six years time frame decreed by the provision of section 8 of the Limitation of Law of Lagos State. In other words, the respondent’s suit does not constitute a defilement of the limitation prescription of section 8 of that Limitation Law. The consequence is obvious. The respondent’s cause of action, which enured to it on 25th May,2011, had not become stale/soured before it was ignited on 30thMarch, 2012 as to warrant its being marooned in the murky ocean of statute bar displayed above. The foregoing dissection, with due reverence, exposes the poverty of the learned appellant’s senior counsel’s dazzling argument on the stubborn issue. It is lame and cannot fly.
In the light of this expansive legal anatomy on limitation law, the lower court’s solemn finding, at page 1393, line 13, volume3 of the gargantuan record, “….. that the claim in this suit is not statute barred”, is unassailable. I fully concur with the immaculate finding. In the result, all the diatribes, which the appellant contrived and unleashed on it, peter into insignificance. I, therefore, dishonor the learned appellant’s senior counsel’s salivating invitation to sacrifice the decision of the lower court on the undeserved shrine of limitation law for want of legal justification. In the end, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.
Having dispensed with the treatment of issue one, I proceed to settle issue two. The meet of the issue, which owns two limbs, is plain. It castigates the lower court’s findings on admission and, estoppel; findings which went against the appellant. I will handle them seriatim.
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The first limb quarrels with the lower court’s, failure to hold that the respondent’s admission of indebtedness to it was binding on. In the first place, in the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see section 20 of the Evidence Act, 2011; UBA Plc v. Jargaba (2007) 11 NWLR (Pt.1045) 247; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588.
It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth, of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288)534 at 558 per Fabiyi, JSC; UBA v. Jaraaba (2007) 31 NSCQR144, (2007) 11 NWLR (Pt. 1045) 247; N.B.C.I. v. Integrated Gas(Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005)14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, against the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. (Nig.) Ltd. (2009) 7 SCNJ 358, (2009) 17 NWLR (Pt. 1170)382; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offorv. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503)499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224;Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A. & FC v. Johnson (2019) 2 NWLR (Pt. 1656) 247.
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Be that as it may, an admission is binding on its maker if it is clear, unequivocal and devoid of misapprehension of facts. See Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. A court has to examine the entire pleadings of a party in order to determine if there is admission, see Okoye v. Nwankwo (2014) 15 NWLR (Pt.1429) 93.I have, taking shelter under this bounden duty saddled on the court by law, given a clinical and global examination to the respondent’s 21 paragraph statement of claim which monopolises pages 3-8 volume 1, of the record, incidentally, I am unable to locate, even with the prying eagle eye of a court, in that holistic exercise, where the respondent made a categorical admission of being indebted to the applicant. In paragraph 12 thereof, it pleaded that it acted “under the honest and innocent but mistaken and erroneous belief that it was indeed indebted to the defendant”. This to my mind, does not come within the canopy of admission in the sense that it is, totally, divorced from being clear, unequivocal and drained of misapprehension of facts. Put simply, it is not, in the least, an undiluted admission of the respondent’s indebtedness to the appellant as contemplated and ordained by law.
The appellant erected its defence of the respondent’s debt admission on exhibit C21. It was a letter written by the respondent to the appellant on 9th March, 2011. I have given an intimate reading to the 7-paragraph letter. It does not disclose the exact amount which the respondent was liable to pay to the appellant. It is rather nebulous, blank, imprecise and void of the debt sum. Its vagueness and woolliness in the debt sum specification constitutes a serious coup de grace on the appellant’s allegation of admission against the respondent. It flows, that the necessary ingredients of admission were in short supply in the exhibit C21. At the cradle of page 1396, lines 1 and 2, of the elephantine record, the lower court tersely, declared: “There is no categorical statement of what debt the claimant owes in the letter. It cannot be said to be a
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binding admission that amounts to estoppel….” In the glaring face of those apparent debilitating deficiencies in the hallmarks of admission, the lower court did not, in my view, fracture the law when it labeled the document, exhibit C21, as impotent to qualify/impregnate admission against the appellant. In the aggregate the learned appellant’s senior counsel’s dazzling submission on this point, with due respect, flies in the face of the law.
There is one other grouse, nursed by the appellant, under this first limb of issue two. It appertains to the lower court’s classification and dissection of classes of admission. The appellant excoriated it as raising issue suo motu. Indisputably, the law, seriously, frowns on a court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such an untoward judicial exercise will drag the court into the arena of conflict as well as impinge on the inviolable rights of parties to fair hearing as entrenched in section 36 of the Constitution, (as amended),see INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015)13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Bina (2016) 12NWLR (Pt. 1526) 316; Mabamijie v. Otto (2016) 13 NWLR (Pt.1529) 171; A.-G., Fed. v. A-G., Anambra State (2018) 6 NWLR (Pt.1615) 314; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534. However, it is not an inelastic rule of law. It admits of certain exceptions. The need for address by parties becomes unnecessary when:
“(a) the issue relates to the courts own jurisdiction;
(b) both parties are/were not aware or ignore a statute which may have bearing on the case ….
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(c)… on the face of the record serious questions of the fairness of the proceedings is evident,”
See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at332, per Rhodes – vivour, JSC; Aderibigbe v. Abidoye (2000)10 NWLR (Pt. 1150) 592; Effiom v. C.R.S.I.E.C. (2010) 14NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6NWLR (Pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt.1670) 51.
It is decipherable from the record, the touchstone of the appeal, that the warring parties joined issue on the respondent’s admission of the debt. In the view of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636)357. Indeed, it is the heartbeat of the appellant’s defence to the respondent’s suit which transfigured into the appeal. Put the other way round, the parties proffered evidence and addressed the lower court on the point. In this wise, the law mandates the lower court to make finding(s) thereon, see Odunukwe v. Ofomata (2010) 18NWLR (Pt. 1225) 404; Aba v. Monday (2015) 14 NWLR (Pt. 1480)569; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38.The lower court did not, proprio vigore, raise the issue of admission. It merely, and rightly in my view, analysed the species of admission, informal and formal, as propounded and bifurcated by the apex court in Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153, (1995) 5 SCNJ 44.Thatcannot, by any guise or imagination, snowball into raising an issue suo motu. It follows, that the allegation of raising admission issue suo motu is not only uncharitable but unsustainable. The decision was not guilty of the pseudo-charge as the lower court acted in accordance with the tenet and spirit of the law. The net effect is clear. The appellant’s inviolable right to fair hearing did not suffer any erosion in the unbiased judicial hands of the lower court. Indubitably, it cannot harvest from the sanctuary of the beneficent provision of section 36 of the Constitution,
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as amended. The foregoing legal expositions, with due deference, puncture the learned appellant’s senior counsel’s seemingly elegant contention on the point of raising admission issue suo motu. It is disabled from its birth.
That takes me to the second limb of the appellant’s grouch on this knotty issue. It is hedged around estoppel. The doctrinal defence of estoppel traces its paternity to the common law principle based on equity. It has been imported and, deeply, propagated/rooted in our corpus juris. It connotes, an admission, or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature-so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it, see Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) 387,(2000) 6 SC (Pt. 1) 133 at 147; Olalekan v. Wema Bank Plc (2006)13 NWLR (Pt. 998) 617; A-G, Rivers State v. A.G, Akwa lbom State (2011) 8 NWLR (Pt. 1248) 48.There are four main classes of estoppel, videlicet; estoppel by record, estoppel by deed, estoppel by conduct and promissory estoppel, see Oyerogba v. Olaopa(1998) 12 SCNJ 115, (1998) 13 NWLR (Pt. 583) 509; Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204.
Nigeria, a legatee of the common law version of estoppel, has since codified it. It is ingrained in section 169 of the Evidence Act,2011. For the importance, I extract it out from the statute bookipsissima verba, thus:
When one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest
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shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
This provision is comprehension-friendly. It is a re-enactment of the provision of section 151 of the defunct Evidence Act, 2004and both had fallen for interpretation before the apex court in sea of ex-cathedra authorities, see A.-G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309) 419; Ajayi v. Total (Nig)Plc (2013) 15 NWLR (Pt.1378) 423; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt. 1412) 352; Mabamije v. Otto (2016)9 NWLR (Pt. 1529) 171; BPS Constr. & Eng. Co. Ltd. v. FCDA(2017) 10 NWLR (Pt. 1572) 1; In Re: Apeh v. PDP (2017) 11 NWLR (Pt. 1576) 252; Bulet Int’l (Nig) Ltd. v. Olaniyi (2017) 17NWLR (Pt. 1594) 260; Okpala & Sons Ltd. v. Nigerian Brew. Plc(2018) 9 NWLR (Pt. 1623) 16; Aderonpe v. Eleran (2019) 4 NWLR(Pt. 1661) 141; C & C.B. Dev. Co. Ltd. v. Min., E.H & U.D (2019)5 NWLR (Pt. 1666) 484; Mamonu v. Dikat (2019) 7 NWLR (Pt.1672) 495; MTN (Nig) Comm. Ltd. v. Corporate Comm. Inv. Ltd.(2019) 9 NWLR (Pt. 1678) 427.
The appellant’s coup de main centres on estoppel by conduct. It bears/wears another appellation-estoppel in pais, see Oyerogba v. Olaopa (supra); Chukwuma v. Ifeloye (supra), A.G., Rivers State v. A.-G, Akwa Ibom State (supra) The doctrine of estoppel by conduct, which is ususally employed as a shield in litigation, is anchored on the rule of equity and good conscience. Its goal is to ensure honesty and good faith in human transactions to the triumph of justice between the parties. It is a bar which forbids a party from blowing hot and cold, approbating and reprobating in the same transaction. It compels a person to adhere/stick strictly to the credo that a man’s words should be his bond. It is a sworn-enemy of somersault/volte-face in human agreements. In Iga v.
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Amakiri (1976) 11 SC 1 at 12-13, the apex court, per Obaseki, JSC, invented the three components of estoppel by conduct in these illuminating words.
If a man by his words or conduct willfully endeavor to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again. If a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts: Thirdly, if a man whatever his real meaning maybe, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.
This has been espoused and re-echoed in flood of decisions, see A.-G., Nasarrawa State v. A.-G., Plateau State (supra); BPI Group Cor. v. BPE (2012) 18 NWLR (Pt. 1332) 209; CPC v. Ombugadu(2013) 18 NWLR (Pt. 1385) 61.3; Pina v. Mai-Angwa (2018) 15NWLR (Pt. 1643) 431; CBN v. Interstella Comm. Ltd. (2018) 7NWLR (Pt. 1618) 294; Arije v. Arije (2018) 16 NWLR (Pt. 1644)67; D.M.V. (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 163;Olayioye v. Oyelaran (2019) 4 NWLR (Pt. 1662) 351; Gana v. SDP(2019) 11 NWLR (Pt. 1684) 510; Umemedimo v. Mobil Producing(Nig.) Unltd. (2019) 12 NWLR (Pt. 1685) 1.
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Incontestably, the appellant pegged its, defence of estoppels in pais on the alleged respondent’s admission of indebtedness to it. I had at the inceptior of this issue, found and affirmed the lower court’s finding that the respondent was not guilty of the admission of indebtedness. There are no extenuating circumstances, furnished before this court, to compel/stimulate me to disturb that confirmation which I reached after due consultation with the law. The affirmation has caustic effect on the appellant’s plea of estoppel in pais. It amputates and makes it an orphan vis-a-vis the admission. In effect, it has no legal parentage to perch and command any viability and validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. v. Ekperi(2007) 3 NWLR (Pt. 1022) 493; Alsthom S.A. v. Saraki (2005) 3NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168)513. In that prostrate state, the doctrine of estoppel by conduct, being brandished by the appellant, is worthless to its case.
That is not all. The defensive doctrine of estoppel by conduct, mounted by the appellant, is not an automatic right. A court does not award it to a party, who pleads it, as a matter of routine. In Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204 at 238,Ogbuagu, JSC, evoled the ingredients of the doctrine to wit:
1.That there was a false representation or concealment of material facts.
2.That the representation must have been known to be false by the party making it or the party
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must have been negligent in not knowing its falsity.
3.That it was believed to be true by the person to whom it was made.
4.That the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent, and
5.That the party asserting estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds.
The vexed question, which begs for an answer is: did the appellant prove these ingredients? It is in the respondent’s pleading and evidence that it acted “under the honest and innocent but mistaken and erroneous belief that it was indeed indebted to the defendant. … “ This concrete piece of evidence neutralises the allegation of false representation being peddled by the appellant. An innocent/honest representation” is diametrically opposed to false representation. In a swift response to the respondent’s mistaken/erroneous belief of its indebtedness to it, the appellant promptly, peremptorily and abruptly abrogated its business relationship with the respondent. This is the clear purport of exhibit C22, wrapped at page 217 volume 1, of the record, written on 16th March 2011.The consequence of exhibit C22 is not a moot point. It constitutes a classic evidence that the appellant did not alter its position or act to its detriment on the footing of the respondent’s innocent and honest representation that it was indebted to it in about two months after the birth of exhibit C22, the appellant severed their telephony commercial relationship by dint of the exhibit C5 of 25th May, 2011. In sum, the appellant failed, woefully, to establish the doctrine of estoppel by conduct as to harness from its vineyard against the
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respondent.
My noble Lords, for the sake of completeness, the appellant branded the lower court’s finding on the issue as perverse. Since perversion is the cynosure of the point, it is important to x-ray its purports for easy appreciation. A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR(Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 NWLR(Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217;Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1)(2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M. C. S.N.(Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672)495; MTN (Nig.) Comm. Ltd. v. Corporate Comm, Inv. Ltd. (2019)9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt.1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt.1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.
Now, the lower court’s judgment, sought to be creamed and ostracised, is pasted at pages 1386 – 1398, volume III of the expansive record: the bedrock of the appeal. I have subjected it to a microscopic examination. I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision adumbrated above. The wisdom behind the comparison is simple. It is to discover if the judgment is mired in the swamp of perversity. The judgment of the lower court, which is submissive to comprehension, is not
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antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant.
In the light of this juridical survey, done with the aid of the law, the lower court’s findings on the issue are unimpeachable. They are, totally, in tune with the law. It will smell of judicial sacrilege totinker with findings that are not hostile to the law. That is a far cry from the bounden duty of an appellate court. In the result, I am left with no choice than to resolve the issue two against the appellant and in favour of the respondent.
It remains to thrash out issue three. The focus of the issues is clear. It bemoans the lower court’s acceptance and reliance on exhibit C1. The exhibit C1 dated 7th September, 2016, is a financial report of the transactions between the parties. It is a catholic document of about 50 pages which is dotted with financial figures and spans pages 281-419, volume 2, of the wordy record. Its author, Ori Adeyemo, CW1, testified as a Chartered and Forensic Accountant. In other words, his testimony was that of an expert witness. This brings to the fore the interpretation of the provision of section 68 of the Evidence Act, 2011 (former section 57 of the repealed Evidence Act, 2004). It reads:
68(1) When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or act, or as to identity of handwriting or finger impressions, the (opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or question as to identity of handwriting or finger impressions, are admissible.
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(2)Persons as specially skilled as mentioned in section of the section are called experts.
An expert is a person who is specially skilled in the field he is giving evidence. He is one who has made subject he speaks on a matter of particular study, practice or observation and posses a particular and special knowledge of the subject. He must be a person qualified to speak with some amount of authority by reason of their special training skill, mastery of familiarly with the subject matter in question see A-G, Fed. v. Abubakar (2007) 10 NWLR (Pt.1041) 1; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1462) 205;Rabiu v. Amadu (2013) 1 NWLR (Pt. 1337) 36.It can be garnered from this clear provision, that it is the court that decides whether or not a witness is an expert, in the areas catalogued in the provision, using his knowledge and skill as a template. A court is not bound to accept the evidence of an expert, see Seismograph Service Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Service Ltd. v. Ogbeni(1974) 4 SC 85; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173;Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402; Gundiri v. Nyako (2014) 2NWLR (Pt. 1391) 211; Rabiu v. Amadu (supra); Oando (Nig) Plc v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Ladoja v. Ajimobi (supra);Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Bille v. State (2016) 15 NWLR (Pt. 1536) 363; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.
It cannot be gainsaid that the exhibit C1, which is the pivot of the appellant’s complaint, falls within the four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, section 258 of the Evidence Act, 2011. Remarkably, the law grants to the courts the unbridled licence to read a document holistically so
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as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987)3 NWLR (Pt. 61) 377, (1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 704) 609; ACB v. Apugo (2001) 5NWLR (Pt. 707) 483; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400;Bunge v. Gov. River State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012)18 NWLR (Pt. 1332) 209; Julius Berger (Nig.) Plc. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385; UBN Ltd. v. Sax(Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.SD.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these canons of interpretation of document in order not to offend the law.
One of the appellant’s chief grievances, indeed its trump card on the issue, is that the document was/is inconclusive and, ipso facto and de jure, ought not to have been relied upon by the lower court. In the eyes of the law, inconclusive, a word that now arrests the attention of the Nigerian populace especially in political firmament, denotes not leading to firm conclusion or definite result, not ending dispute, see Nruamah v. Ebuzoeme (2013) 13 NWLR(Pt. 1372) 474; A.P.C. v. Karfi (2018) 6 NWLR (Pt. 1616) 479;Ojobo v. Moro (2019) 17 NWLR (Pt. 1700) 166. I have given an indepth and universal study to the summary portion of the exhibitC1 which confronts one at the threshold of it. Admirably, it does not harbor any equivocation in its significance. Unfortunately, that part, which hosts ten leaves, is unpagenated. At the foot/bottom of the penultimate leaf, its maker, CW1, declared:
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Please note that this report is inconclusive because of the absence of the various covenanted agreements reached between Airtel Networks Limited and our client, missing contractual invoices (if at all) and subscribers call logs leading to our inability to compute relevant ORSC commissions and other entitlements due to the Plus Limited……
It can be gleaned from this excerpt that the inconclusiveness, warehoused in the exhibit C1, affects the respondent whose Ongoing Revenue Service Charge (ORSC) and other entitlements could still be in custody of the appellant. Put bluntly, the inconclusiveness is prejudicial to the respondent and hurtlles/friendly to the appellant that refused to furnish the author with those catalogued documents. Prior to the above extract, the owner of the report, CW1, had opined that the appellant should refund the whopping sum of N4.8 Billion to the respondent. The point I am struggling to ram home is that the inconclusiveness is relative to the unknown outstanding sum not connected to the concluded debt sum. It is not retrospective, but prospective in relation to further and in futuro debt computations between the parties. In a nutshell, I hold the humble view that the inconclusiveness of the report does not, in the least, diminish its genuineness/ authenticity vis-a-vis the sum of N4.8 Billion under disputation between the contending parties.
It is garnered from the record, the keystone of the appeal, that the statement of account, which the DW1, the appellant’s star and only witness tendered was greeted with a stiff opposition in the bowel of the lower court. The lower court upheld the objection and marked it rejected. The ruling on its rejection, which is not a subject of appeal, constitutes a serious dent on the appellant’s case. It ceased to acquire the status of an exhibit with the adjudicatory gains attendant to it. An exhibit denotes a document, record or other tangible objects formally introduced as evidence in
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court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. A court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P. T.E. Ltd (2012) 18NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014)7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt.1449) 374. In the wide realm of adjectival law, a rejected document cannot be relied on by the court, see Nigerian Ports Plc. v. B.PPTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013)11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi(2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR(Pt. 1596) 108. Alas, the statement of account, which would have doused the potency of exhibit C1, was a document ex facie curiae. It was castrated to the benefit of the respondent’s case.
Besides, the appellant, through counsel, was stingy in the cross examination of CW1 on the critical and decisive exhibit C1.The appellant ignored the imperativeness of cross-examination in our adversarial system of adjudication Cross-examination has been described as the “nobel art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, Offorlete v. State (2000) 3 NSCQR243 at 268, (2000) 12 NWLR (Pt. 681) 415 per Achike, JSC Cross-examination “if rightly employed, is potent tool for perforating falsehood”, Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 at 36per Fabiyi, JSC. Thus, cross-examination occupies an Olympian position in the adjectival law. It is the template with which to assess the truth in evidence-in-chief of witnesses. The veracity of a witness under examination-in-chief is tested by the evidence elicited from him in the furnace of cross-examination. Curiously, the appellant disarmed itself of the necessary “lethal weapon”, in the form of cross-examination, which it would have harnessed, through the advocative prowess and dexterity of counsel, to counter the damaging and dismissal evidential effects of exhibit C1.
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Lastly, the appellant queried the exhibit C1 and christened it as an afterthought. It is in evidence, that the respondent’s only witness, DW1, conceded, in the cross-fire of cross-examination, that the appellant received the exhibit C 1, but did not react to debunk its content. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones that flow out from examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581;Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521. Thus, that impregnable piece of evidence of acknowledgement of receipt of exhibit C1 makes mincemeat of the appellant’s allegation that the exhibit C1 was an afterthought. The appellant had it well-ahead of the institution of the respondent’s action, but decided to treat it with disdain and contempt. The admission of its acceptance acquits/discharges the document of the phantom charge of afterthought preferred against it by the appellant.
My noble Lords, a synthesis of these points, amply demonstrate that document, authored by an expert, was not challenged by the appellant during the trial of the case before the lower court. The law grants the lower court the liberty to act on unchallenged evidence, viva voce or documentary. The lower court, therefore, acted ex debito justiciae a fortiori being a documentary evidence which is permanent, incorruptible, inelastic and indelible in contradistinction to oral evidence that ooze out from the vocal cord of man and susceptible to evidential tutorage. The exhibit, clearly, reveals that the appellant was mired in debt to the respondent in the stupendous sum of N4.8 Billion. Indebtedness signifies a state of owing money, or something owed, or debt to another person, se Barbedos and Ventures Ltd. v. FBN Plc (2018) 4 NWLR (Pt. 1609) 241. In my considered view, the lower court did not transgress the law when it
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relied on exhibit C 1 to found in favour of the respondent in the matter. The judicial exercise is, totally, divorced from being injudicious. I resolve the issue three against the appellant and in favour of the respondent.
On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower court delivered on 4th October, 2016. The parties shall bear the respective costs they expended in the prosecution and defence of the ill-fated appeal.
OGAKWU, J.C.A.: In order to ascertain whether an action is statute barred, the court looks at the date when the action was instituted and the date when the cause of action arose. Now, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action. In simple terms, a cause of action arises the moment a wrong is done to the claimant by the defendant. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 and Adekoya v. F.H.A. (2008) 11 NWLR (Pt. 1099) 539 at 551 and 557·
The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a court of law has no discretion in the matter: Adekoya v. FHA (supra) at557. It is necessary to distinguish a cause of action from a right of action. A right of action is the right to enforce presently a cause of action. A right of action is a remedial right. A statute of limitation however removes the right of action and leaves the claimant with a bare and empty cause of action which he cannot enforce. See Egbe v. Adefarasin (supra) at 20; Eboigbe
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v. NNPC (1994) 5 NWLR (Pt.347) 649 at 659; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 and P. N. Udoh Trading Co. Ltd v. Abere (2001) 11 NWLR (Pt. 723)114 or (2004) 24 WRN 1 and F.H.A. v. Olayemi (2017) LPELR(43376) 1 at 46-47.
The appellant contends that the respondent’s action is statute barred and caught by the provisions of section 8 of the Limitation Law, Cap L67, Laws of Lagos State, having been filed more than six years after the cause of action. From the facts averred to in the statement of claim, the respondent’s cause of action was donated by the appellant’s letter of 25th May 2011. The respondent instituted the action at the lower court on 30th March 2012. Apposing the date of accrual of the cause of action and the date when the action was filed, it is effulgent that the action was filed within one year of the accrual of the cause of action. It is consequently not caught by the limitation period.
The appellant further raised the issue that exhibit C21 tendered by the respondent constitutes an admission of the respondent’s indebtedness to it. Section 20 of the Evidence Act, 2011 defines admission as:
“An admission is a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances mentioned in this Act.”
Section 24 of the Evidence Act then enacts for proof of admission against the person making the admission. By all odds, an admission against interest is the best evidence in favour of an adversary in a trial: Onyenge v. Ebere (2004) 13 NWLR (Pt. 889)20 and Rockshell Int’l Ltd v. B.Q.
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S. Ltd (2009) 12 NWLR (Pt. 1156)640 at 649. However, in order for an admission to be accorded credence by the law, the admission must be clear, unequivocal and cannot be said to be based on any misapprehension of any fact. See Alhassan v. Ishaku (2016) LPELR (40083) 1 at 92-93,(2016) 10 NWLR (Pt. 1520) 230; Narindex Trust Ltd v. NICMB Ltd(2001) 1 SC (Pt. I) 25, (2001) 10 NWLR (Pt. 721) 321; Oguanuhu v. Chiegboka (2013) LPELR (19980) 1 at 23, (2013) 6 NWLR(Pt. 1351) 588 and IMB Plc v. Comrade Cycle Co. Ltd (1998) 11NWLR (Pt. 574) 460. Exhibit C21 is not univocal; indeed it does not state any amount as being owed. The law can therefore not accredit it as an admission as hankered after by the appellant. This being so, even though section 27 of the Evidence Act stipulates that admission may operate as estoppel, the foofaraw made by the appellant on estoppel in pais is equally unavailing, since the said exhibit C21, not being an admission, cannot ground the estoppel which the appellant pines for.
It is for the foregoing reasons and the more elaborate reasoning and conclusion adroitly marshalled in the erudite leading judgment of my learned brother, Obande Festus Ogbuinya, JCA, which I was privileged to have read in draft, that I am allegiant to the ineluctability of the appeal only being deserving of a dismissal. I therefore join in dismissing the appeal. I abide by the consequential order as to costs made in the leading judgment.
ALIYU, J.C.A. I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Obande Festus Ogbuinya, J.C.A. I am entirely in agreement with the reasoning and conclusion which, with respect, I adopt as mine in also dismissing this appeal for lacking in merit.
I affirm the judgment of the trial court. Appeal dismissed by me.
Appeal dismissed.
Representation
A. Olatunji, SAN (with him, Nas Ogunsakin, Esq.) – for the Appellant
Dotun Oduwobi, Esq. – for the Respondent