Alhaja Rafatu Ayorinde & Ors v. Alhaja Airat Oni & Anor

I have read the judgment of my learned brother Okay Achike, JSC in this appeal. I agree entirely with him dismissing this appeal. I have in addition decided to state my own reasons for agreeing in full.
This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on the 27th day of April, 1994, Coram Sulu-Gambari, Uwaifo and Ayoola, JCA. In a unanimous judgment read by Ayoola JCA, the Court of Appeal held that the action of the Plaintiffs/Respondents against the Defendant/Appellants was not properly constituted, and accordingly allowed the appeal of the Defendants against the judgment of the learned trial Judge giving the reliefs sought together with the order as to costs of the action in the High Court. The Court of Appeal made an order to strike out the action of the Plaintiffs/Respondents against the judgment of the learned trial Judge giving the reliefs sought together with the order as to costs of the action in the High Court. The Court of Appeal made an order to strike out the action of the Plaintiffs/Respondents against the Defendants/Appellants and for Plaintiffs/Respondents to pay costs of the action assessed at N500 in the High Court and in the Court of Appeal assessed at N1,000.

The facts which gave rise to this litigation are very simple, precise and short. The pleadings by themselves exemplify the simplicity of the facts even though there were filed statement of claim; statement of Defence, Second amended statement of Defence of 1st and 2nd Defendants, 2nd Amended Statement of Claim, 2nd

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Amended Statement of Defence of 1st and 2nd Defendants.
The factual and general background
The subject matter of the action is the claim to the ownership of 67 Docemo Street, Lagos which Plaintiffs claim to have inherited from their ancestor, late Gbadamosi Fagbuyi Ayorinde, otherwise known as Ayande. Plaintiffs claim to be entitled to the grant of a certificate of occupancy in respect of the said properly and possession of the properly. Plaintiffs sought a perpetual injunction restraining the Defendants, their Agents and servants from ever entering the said premises.
The fact that 67 Docemo Street, Lagos was owned by late Gbadamosi Fagbuyi Ayorinde is not in dispute. It was also not in dispute that Gbadamosi Fagbuyi Ayorinde died intestate. It was also not in dispute that Plaintiffs are descendants of Gbadamosi Fagbuyi Ayorinde, and that upon his death, his property devolved upon his children and grand children in accordance with established native law and custom.
It is the contention of Plaintiffs that Defendants are not the descendants of late Gbadamosi Fagbuyi Ayorinde. On the other hand, Plaintiffs said that Defendants are the children and/grand children of Musa Giwa, who occupied 67 Docemo Street as a customary tenant to late Gbadamosi Fagbuyi Ayorinde due to the cordial relationship between them.
According to the Plaintiffs, the children of Musa Giwa continued as their father before them to live in 67 Docemo Street, rent free. Defendants however, went on to pull

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down the existing structure on the land with a view to rebuilding same despite warnings from the Plaintiffs not to do so. This is the reason for this action.
On their part, defendants also claim descent from Gbadamosi Fagbuyi Ayorinde, through Sefinatu Giwa, who they claim to be Ayorinde’s daughter and that Ayorinde gave the property to Yisa Giwa in consideration of his birth and descent through his mother, late Madam Sefinatu Giwa (nee Ayorinde) to enable late Yisa Giwa to set up the immediate family and raise his children.

The 1st Defendant claim as grand-child of late Sala Giwa, and that she had the mandate and concurrence of the children and grandchildren and descendants of late Yisa Giwa and late Sala Giwa to redevelop the family property at 67 Docemo Street, Lagos for residential purpose of the family.
At the trial in the High Court of Lagos, before Adeyinka J, the following findings of fact were made:
1. Yisa Giwa, the Defendant’s predecessor in title was permitted to live at 67 Docemo Street, Lagos, by late Gbadamosi Fagbuyi Ayorinde for love and close friendship.
2. Yisa Giwa and his children had exclusive possession of the property.
3. Yisa Giwa was a customary tenant to Ayorinde under native Law and Custom of Lagos in respect of the property.
4.The Learned trial Judge rejected the contention that Yisa Giwa was a tenant at will.
5.The learned trial Judge found that what Plaintiffs called

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Musa Giwa was Yisa Giwa.
6.However, the Defendants are not children and grand children of Yisa Giwa who Plaintiffs knew was the customary tenant of their late father and grand father, but of Sala Giwa.
7.The learned trial judge held that it was wrong for Plaintiffs to have sued the two defendants, who are not children or grand children of Musa Giwa, the Defendant before the Court had no defence to the action and therefore as between them and the Plaintiffs, the latter must succeed.
Realising the defect in the action, the learned trial Judge suo motu amended the capacity of the defendants and name of the 2nd Defendant to the action and entered judgment for the Plaintiffs against the Defendants for declaration of entitlement to the grant of certificate of occupancy in respect of 67 Docemo Street, Lagos, possession and perpetual injunction.
The Defendants dissatisfied with the judgment appealed to the Court of Appeal against the judgment. The main issues in the Court of Appeal as disclosed from the formulation of issues for determination are-
(1)Whether having found that it was wrong to have sued the defendants, as “children and grand-children of Yisa Giwa and that they are not descendants of Yisa Giwa, the trial Judge should have held that the action was not properly constituted.
(2)Whether the learned Judge was right in holding that Yisa Giwa was customary tenant and not a tenant at will.
The Court of Appeal decided the appeal on the question

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whether the action had been properly constituted, and held that it has not been properly constituted. The appeal was allowed and the judgment of the trial Judge set aside. Plaintiffs have appealed against this decision.

Appeal to this Court
They have relied on five grounds of appeal. I have not considered it necessary to reproduce the grounds of appeal because of their comparative irrelevance to the critical issues in the judgment of the Court of Appeal which is the subject matter of complaint. It is important to state the ratio of the judgment appealed against where it was stated,
“Be that as it may, this appeal must be decided on the question whether the action has been properly constituted. I would therefore allow the appeal, set aside the judgment of the High Court giving the reliefs sought together with his order as to costs in respect of the action in the High Court.” I would order that the action be struck out and order that the Plaintiffs should pay costs of the abortive action in the High Court in the sum of N500 and costs of the appeal in the sum of N1,000″ (See pp.150-151).
It seems to me learned Counsel to Appellants has ignored this passage both in the determination of the grounds of appeal against the judgment, and in the formulation of issues for determination. It is hardly contestable that where the Court has determined a matter before it on the ground that the action before it was not properly constituted, the question as to whether the court decided the merits of the case does not arise. Similarly irrelevant

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are issues whether judgment can be entered in a capacity different from that in which action was brought. This is because the action having not been properly constituted, it does not give rise to legal consequences. Thus of the five issues for determination formulated only 1 and 2 need attention. I reproduce the issues accordingly.
Issues for Determination
(a) Appellant
(1) Whether or not an action will fail because of NON JOINDER of a party.
(2) What is the legal effect of a person who had knowledge (whether actual or constructive) of the pendency of a suit the result of which may likely affect his interest and did not apply to be joined as a party.
(3)Whether judgment can be entered against a person sued in one capacity in a different capacity other than the capacity in which he was originally sued.
(4) Whether or not the judgment of a court could stand where the court did not consider the case or argument put forward by one Party and make a definite finding one way or the other.
(5) Whether or not a court can discredit and reject the submission of a party on a major point of appeal and proceed to enter judgment in favour of the same party on the ground that the appeal was not focused or premised on the discredited and rejected submission.”

The two issues for determination formulated by Respondent seem to me appropriate and adequately cover the issues involved in this appeal. I shall adopt them in my consideration of this appeal. The issues are

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as follows –
“Issues for Determination
(b) Respondents It is the contention of the Respondents that the issues for determination in this appeal are as follows:-
(a) whether having regard to the nature and the manner in which the relief sought by the Plaintiffs in the trial court and the findings of the trial court that the Defendants are not the children and grand children of Yisa Giwa neither are they the descendants of Yisa Giwa, the Appellate Court was right in holding that the action was not properly constituted.
(b) Whether having regard to the Writ of Summons and the Statement of Claim filed in this suit and the Plaintiff’s’ contention throughout the trial that the action was against the children of Yisa Giwa coupled with the findings of the trial court that the Defendants were not the children of Yisa Giwa against whom the Plaintiffs were seeking reliefs, the Appellate court was right in striking the case out for non-joinder of the children and grandchildren of Yisa Giwa.’
Consideration of Appeal – In my view the determination of the issues so formulated would resolve the issue posed by the appeal against the judgment. The only issue is whether or not the action against the Respondents was properly constituted. If it is not as held by the Court below cadit quaestion.
Arguments of Appellants’ Counsel – Mr. Lawal-Akapo, learned Counsel to the Appellants both in his brief of argument and orally before us submitted quite rightly and as a general rule that non-joinder of a necessary party will

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not defeat the action or render the judgment of the court a nullity. Accordingly, failure to join the children of Yisa Musa ought not to have led the lower Court to the conclusion that the action was not properly constituted as to entitle the Court to strike out the claim. Leonard Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors.(1991) 6 NWLR (Pt. 199) 501 at 512 was cited and relied upon.
Learned Counsel relying on the doctrine of standing by in arguing his second issue, submitted that where a person with vested interest or right in a matter has knowledge of the pendency of a suit in respect thereof likely to affect his interest adversely. he must apply to be joined in the proceedings, and will be bound by the outcome if he fails to do so. He referred to the testimony of DW 1 that the children of Yisa (Musa) Giwa were aware of the ongoing litigation and had failed to apply to be joined. The decisions of Green v. Green (1987) NSCC. vo1.18 1115;
Ekpoke v. Usilo (1978) NSCC 413 at 414 and 478; Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 13 NSCC.477, 478 were cited.

Arguments of Respondent’s Counsel – In her reply to the submissions of learned Counsel to the Appellants, Mrs. Marian Onafowokan, learned Counsel to the Respondents made it clear that Appellants as Plaintiffs have been consistent both in thewrit of summons and statement of claim, that the reliefs sought was against the children and grand children of Yisa Giwa. The said Yisa Giwa was the customary tenant of Gbadamosi Fagbuyi Ayorinde, the ancestor of the Plaintiffs. Learned Counsel observed

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that one of the findings of the trial Judge was that Respondents were not the children and grand children or Yisa Giwa, but those of one Sala Giwa. It was the submission of learned Counsel that having found that 1st and 2nd Defendants being grand children of Sala Giwa. who have no tenancy relationship with Plaintiffs, because the tenancy relationship was between their father and Yisa Giwa, it follows that the person whose customary tenancy had to be determined were not made party to the action.
There is no doubt that the granting of an order of injunction means the determination of the tenancy of the children and grand children of Yisa Giwa, without making them a party to the suit and without an opportunity of being heard on the matter. This it was submitted violates the principle of audi alterem partem. For this consideration the action was not properly constituted and ought to have been struck out. Learned Counsel cited and relied on Okoye v.  NCFC Ltd. (1991) 6 NWLR (Pt.199) 501 and Ekpere & Ors. v. Aforije  (1972) 1 All NLR (Pt. 1) 220. 
Consideration of the Arguments – The above submissions concisely stated are the summary of arguments urged on us by learned Counsel in this appeal. A careful analysis of the submissions of counsel, the pleadings and evidence at the trial. The judgments of the trial Judge and of the Court below, reveal the need to start from first principle. It seems obvious to me that the elementary considerations about the commencement of an action and the essential elements of a properly constituted action ought to be discussed before considerations of the effect of the

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attitude of respondents who were aware of the pendency of the case in which they have interest, and the justification for their being aloof without applying to the court to be joined. The question of their standing by whilst a litigation affecting their interest is going on, depends upon the validity of the legal activity on the purported action.

It is an elementary consideration in bringing actions that a writ of summons must not only state the name of a Plaintiff with legal capacity to bring the action, it must also contain the name of a defendant, with legal capacity to defend the action, and the claim against the defendant. In other words, the writ of summons shall state briefly and clearly the Parties to the action. the subject matter of the claim and the relief sought. There must be a dispute between the Plaintiff and the Defendant – Nnodi v. Okafor (1964) NNLR 132.

It is well settled that a statement of claim filed by the Plaintiff supersedes the endorsement on the writ of summons and cures whatever defect in the endorsement – see Fadahunsi v. Shell Company of Nigeria Ltd. (1969) NMLR 304.

At the commencement of trial a properly constituted action must contain the Plaintiff, a defendant and the claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101, it was held that it was improper to join as co-defendants to an action, persons against whom the Plaintiff has no cause of action and

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against whom he has not made any claim – See Lajumoke v. Doherty (1969) NMLR 281.
It is pertinent in this case to observe that the Plaintiffs have brought this action against Alhaja Airat Oni and Alhaji Fasiu Banire. In paragraphs 4 and 6 of the Plaintiffs Statement of Claim they pleaded
“4 The Defendants are children and grand children of Musa Giwa (deceased) who in his lifetime occupied the premises at No.67 Docemo Street. Lagos as “a Customary tenant to” Late Gbadamosi Fagbuyi Ayorinde upon agreed conditions hereinafter stated.
5….
6 Upon the death intestate of the said Musa Giwa, his children and grand-children including the Defendants continued to pay general rates and to effect minor expenses on the said premises as their late father i.e. the said late Musa Giwa, and the Plaintiffs left them to continue in occupation as long as they acknowledge their title to the said property and the families ties based on cordial relationship between the Plaintiffs ancestors and the Defendants ancestors continued until recently, when the Defendants started to assert rights of ownership over the said property.”
It is obvious that Plaintiffs brought this action against the Defendants as children and grand children of late Musa Giwa (meaning Yisa Giwa). Learned counsel for the Respondents had rightly pointed out the specific finding by the learned trial Judge that the two defendants. i.e. the respondents to this appeal are not children and grand children of Musa Giwa (i.e Yisa) whom the Appellants

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knew had customary tenancy with their late father and grand father Gbadamosi Fagbuyi Ayorinde.

The learned trial judge found that Defendants are not the children and grand children of Musa (Yisa) Giwa, but the children and grand children of Sala Giwa. Having so found it became obvious that the proper defendants against whom Plaintiff’s have claimed to have a cause of action, as endorsed on the writ of summons and pleaded in their statement of claim are not before the Court. Accordingly, the defendants before the Court who are not the children and grand children of Musa (Yisa) Giwa, are not the persons directly affected by the result of the action and are not the proper defendants in this action. They are not persons against whom Plaintiffs have a claim and desire to prosecute this action.
It follows therefore from this finding that there are no defendants against whom Plaintiffs can proceed. In the absence of any competent defendant, as the finding has disclosed before the case went on trial, the action should have been struck out on the ground that it is improperly constituted. The Court of Appeal was right to so hold, and learned counsel for the Respondents has so correctly submitted. It is elementary and fundamental requirement of the institution of actions in Court that a defendant should not be brought to court unless a Plaintiff has a claim against him. In Ekpere & Ors. v. Aforije & ors. (1972) I All NLR (Pt.1) 220, the Plaintiffs sought as representatives of the Mosogan Community of Jesse Clan which in effect meant that the Jesse Clan had no interest in the land in dispute. The Jesse Clan had not been made

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a defendant in the action through appropriate representation. Since the relief claimed was against the Jesse Clan, and the Jesse Clan was not a party to the action, it was held that the action was entirely wrongly constituted and struck out with costs. So, in this case since the necessary defendants against whom Plaintiffs are claiming reliefs have not been brought before the Court to enable the exercise by the Court or its adjudicatory jurisdiction, the action is accordingly not properly constituted- See Madukolu v. Nkemdilim & ors. (1962) 1 All NLR 587.
The situation in the instant appeal is different from the case relied upon in the submission by learned counsel to the Appellants, where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of law that where an action is properly constituted, with a Plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-conditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity. – See Oladeinde & Anor v. Oduwole (1962) WNLR. 41

Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined, it can proceed to do so. It is only in those cases where it will not be right and the court cannot properly determine the issues before it in the

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absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties. – See Uku & Ors. v. Okumagba & Ors. (1974) 3SC 35; Peenok v. Hotel Presidential Ltd. (1982) 12 SC 1, 48; Green v. Green (1987) 3 NWLR (Pt.61) 480.
In the appeal before us, the Plaintiffs have not brought the Defendants against whom the claim is being sought to enable the exercise of the jurisdiction of the court for the effectual and complete determination of the issues. This is not the case of joinder. The Plaintiffs have not brought the defendants against whom a claim has been made. In the absence of the real defendants, the Court cannot proceed with the claim of the Plaintiff. It is left with the only option to strike out the action.
Both learned counsel in this appecision of this Court in Okoye &  Ors. v. NCFC Ltd. & 0rs. (1991) 6 NWLR (Pt.199) 501 for the options available to the Court in dealing with a case where the action before it was not properly constituted because al have relied on the recent dethose who should have been parties were not so made and the case proceeded to trial.
In Okoye & Ors. v. NCFC Ltd. & Ors. (supra), Akpata, JSC identified the following options depending on the facts of the case as follows –
“1. To remit the case for retrial and for those who ought to be joined to be joined;
2.To strike out the action if a retrial will necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;

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3.To join for purposes of the appeal the person who ought to have been joined in the trial Court;
4.To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter.’

In the circumstances of this case it is clear that Appellants have brought the wrong defendants before the Court, and for an effectual and complete determination of their claim, they should bring before the court, the children and grand children of Musa (Yisa) Giwa. I am therefore clearly of the opinion that the action not being properly constituted in the absence of proper defendants ought to be struck out. The other option is that of remitting the action for retrial before another Judge. This will still involve ascertaining the true descendants of Yisa Giwa and then joined as a party to the action. I prefer the expedient of striking out the action as not being  properly constituted. I so hold.
Accordingly, I also will and hereby dismiss this appeal as lacking in merit. Costs assessed at N10,000 is hereby awarded to Respondents.

I have had the advantage of a preview of the judgment just delivered by my learned brother Achike, J.S.C., and I am in agreement with him in all the issues raised in this  appeal.
The facts which led to the proceedings now on appeal before us have been fully set out in the said judgment and I need not recount them before making my short comment on the issue of non-joinder of the children and

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grandchildren of Yisa Giwa as defendants in the action.
The learned trial Judge found as a fact that the defendants on record are the children and grandchildren of Sala Giwa and not those of Yisa Giwa who was the customary tenant of the plaintiffs’ late father and grandfather, Gbadamosi Fagbuyi Ayorinde. He chastised the plaintiffs for suing the wrong defendants. He nevertheless gave judgment in their favour against the two defendants whom he found not to be the children of Yisa (Musa) Giwa. He suo motu amended the capacity in which they were sued. It was submitted in the appellants’ brief that non-joinder of a necessary party should not defeat an action and that the failure to join the children and grand children of Yisa (Musa) Giwa should not have warranted the striking out of the action.
Learned counsel for the respondents in her own brief submitted that as the plaintiffs failed to join the descendants of Visa Giwa whom their pleadings and evidence revealed to be the descendants of their customary tenants against whom they claimed, the action was improperly constituted and that the court below was right in striking it out. She referred the court to the cases of Okoye & ors. v. Nigerian Construction & Furniture Co. Ltd. & ors. (1991) 6 NWLR (Pt.199) 501 and Ekpere & ors. v. Aforije & ors. (1972) 1 All N.L.R. (Pt.1) 220.
The learned trial Judge made a finding that the defendants on record were wrongly sued and proceeded to amend the capacity in which they were sued just before he made the consequential. orders in his judgment. Under the Rules, the court is entitled to join those who may likely be affected by the result of the action.

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This is a discretion in the court which it can exercise on its own motion or upon the application of either party. None of the parties applied to have the descendants of Yisa Giwa joined and the court did not on its own motion join them.
Learned trial Judge purported to amend the proceedings thus:
“I hold that the plaintiffs are entitled to the relief of possession of the property against the two defendants but not as children and grand-children of Musa Giwa. The capacity of the defendants is hereby amended accordingly.”
It was too late in the day for him to do so. Furthermore, the issues of possession. right of occupancy and perpetual injunction claimed by the plaintiffs are not the type of rights and interests of the parties actually before him which he could determine without joining the descendants of Yisa Giwa. He ought to have joined the children and grandchildren of Yisa Giwa because their presence is necessary to enable the court effectually and completely settle all the questions in the action.
The failure to join the children and grandchildren of Yisa (Musa) Giwa who are necessary parties is only an irregularity which did not affect the competence of the court. The net result is that the action was not properly constituted and the court below having various option, in its wisdom, rightly struck out the action. See Okafor & ors. v. Aforije & ors. (1973) 1 NMLR 245. An order of re-trial would not have been proper as it would have necessitated extensive amendments of the pleadings. The minor amendment which the learned trial Judge purported to

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make could not have cured the defect. See Ekpere & ors. v. Aforije & ors. (supra). 
In the result, this appeal fails and I hereby dismiss it with N 10,000.00 costs in favour of the defendants.

I have had the privilege of reading in advance the judgment of my learned brother Achike. JSC in this appeal. I entirely agree with it.
The plaintiffs instituted this action against the children and grand children of Musa Giwa. The reliefs sought were against the children and grand children of Musa Giwa. The plaintiffs made this fact very plain in paragraph 4 of their 2nd Amended Statement of Claim. It reads:
“The Defendants are children and grand children of Musa Giwa (deceased) who in his life time occupied the premises at No.67 Docemo Street, Lagos as “a Customary tenant to” Late Gbadamosi Fagbuyi Ayorinde upon  agreed conditions herein-after stated.

But something went wrong. The named defendants herein were not the children and grand children of Musa Giwa. This was the finding of the trial Judge. The defendants were persons against whom the plaintiffs had no claim. Now, I find that curious. But be that as it may, I should imagine that the plaintiffs thought of what to do, So, what was the course of action open to them? As far as I see it, the only option was to discontinue, withdraw the suit. This is rational and good sense. The plaintiffs did not sue the persons they set out to sue.
I must stress that this is not a case where a plaintiff has failed to include a defendant, among others, against

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whom he has a claim. In such a situation one can talk about a non-joinder of a party. In the circumstances of the present case, the issue of non-joinder of a necessary party does not arise. Clearly the action was wrongly constituted. The plaintiffs sued persons against whom they had no claim.
The proper order, in the circumstances, was an order striking out the case. Accordingly, I would also dismiss this appeal with N10,000.00 costs in favour of the defendants/respondents.

 At the trial, the plaintiffs/appellants sued the defendants/respondents as the children and grand children of Musa Giwa whom they alleged in their pleadings, had customary tenancy of the land in dispute from their father and grandfather one Gbadamosi Fagbuyi Ayorinde. At the trial, the learned trial Judge found, according to the evidence that the defendants/respondents were not in fact the children and grand children of Musa Giwa; they were the children and grand children of Sala Giwa who was not a customary tenant of Ayorinde. What is more, the learned trial Judge further found that it was one Yisa Giwa who had the customary tenancy of the land in dispute situate at 67 Docemo Street, Lagos and whose children and grand children should have been sued in this action. The learned trial Judge despite these findings gave judgment for the plaintiffs/appellants, but this was overturned by the Court of Appeal. The substantive issue for the determination of this court in this appeal is whether the action was properly constituted at the initial stage.

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Looking at the evidence on the record of appeal and the findings of the learned trial Judge, there is no doubt in my mind that the proper defendants would have been Yisa Giwa’s children and grand children and not Musa Giwa’s or Sala Giwa’s children and grand children as was done in this case.

It was also my view that the learned trial Judge was wrong to change or amend the capacity in which the 2 defendants/respondents were sued and give judgment against them as he did. The case was therefore wrongly constituted before the trial court as there was no proper defendants against whom any relief could be given in favour of the plaintiffs/appellants. The action should therefore have been struck out ab initio. See Ekpere & ors. v. Aforije (1972) I All NLR (Pt.l) 220. Leonard Okoye v. Nigerian Construction & Furniture Co. Limited (1991)6 NWLR (Pt.199) 501; J.C. Limited v. Ezenwa (1996) 4 NWLR (Pt.443) 391.
In the circumstances, I entirely agree with my learned brother Achike JSC in his leading judgment that there is no merit in the appeal. I therefore dismiss the appeal and award the sum of N10,000.00 costs in favour of the respondents. I also abide by the consequential order made by him.

Appeal dismissed.