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DURU

V.

FEDERAL REPUBLIC OF NIGERIA

 

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 25TH DAY OF FEBRUARY, 2016

CA/L/749C/2015

 

LN-e-LR/2016/11 (CA)

 

OTHER CITATIONS

(2016) LPELR-40088(CA)

 

BEFORE THEIR LORDSHIPS

SIDI DAUDA BAGE, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

YARGATA BYENCHIT NIMPAR, JCA


BETWEEN

LEONARD DURU (A.K.A. EMMANUEL OBIEZE) - Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

 

REPRESENTATION

E. D. Onyeke Esq. For Appellant

AND

Respondent filed no brief and unrepresented, though duly served. For Respondent

 




[EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]



MAIN JUDGMENT

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):

The appeal emerged from the decision of the High Court of Justice of Lagos State (the Court below) whereby the Court below convicted and sentenced the appellant to ten (10) years in prison in aggregate for the offences of conspiracy to obtain money by false pretence, obtaining money by false pretence, forgery and uttering false document.

 

The case against the appellant at the Court below was presented through eleven (11) witnesses and seventy-one (71) documentary Exhibits, whilst the appellant tendered eight (8) documentary Exhibits through the witnesses called by the respondent and rested his case on the evidence for the respondent. The mainstay of the evidence against the appellant was that the appellant acted in league with other persons and obtained various sums of money totaling $397,800 from one Mr. Puchstein, a German, on the pretext that Mr. Puchsteiný??s company, Deramic Company, would be awarded a contract to supply and install computers, printers and office equipment to the Federal Ministry of Mines and Power which was never awarded, nor the monies so  obtained by the appellant returned to Mr. Puchstein; and that the appellant forged/uttered a false document relating to the alleged transaction. The appellant rested his case on the case presented by the respondent. The Court below accepted the one way evidence for the respondent upon which it convicted and sentenced the appellant to 10 years in prison cumulatively for the offences indicated earlier in the discussion.

 

The appellant was unhappy with the decision of the Court below. He filed a notice of appeal with six (6) grounds of appeal questioning the said decision. A brief of argument was thereafter filed by the appellant on 31-08-15. Upon application on notice of motion, the appellant was granted leave on 19-11-15 to argue the appeal on his brief alone. The appeal was argued on 27-01-16.

 

The appellant's brief of argument submitted these issues for determination in the appeal -

"(a)    Whether the Learned Trial Judge properly construed and applied the effect and purport of the decision of the Supreme Court in MICHEAL IJUAKA v. C.O.P. (1976) 6 & 7 SC, PG.99 @ PP.102 - 105, in the Judgment of the Lower Court, which convicted the Appellant for the commission of the offences in Counts 1, 5, 6, 15, & 16, the Respondent having failed to establish at the trial, that the operative influence on the mind of PW2, adduced in evidence at the trial, was the same as that stated in Counts 1, 5, 6, 15 & 16 of the Amended Charge? (This Issue was distilled from Ground 1 of the Notice of Appeal).

(b)     Whether the Learned Trial Judge having expressed a desire to impose the minimum sentence imposed by law on the Appellant, erred, by imposing a sentence of 10 years imprisonment provided under a repealed law on the Appellant, for the offences in Counts 1, 5, 6, 15 & 16, despite the existence of a law in force, at the time of conviction, which provided a minimum sentence of seven years imprisonment? (This Issue was distilled from Ground 2 of the Notice of Appeal).

(c)     Whether the Learned Trial Judge erred in law in convicting the Appellant for the offences of Forgery and uttering in Counts 31 & 32, in view of the failure to establish same against the Appellant by the Respondent at the trial? (This Issue was distilled from Ground 3 of the Notice of Appeal).

(d)     Whether the Learned Trial Judge properly evaluated the evidence adduced at the trial with respect to the offences for which the Lower Court convicted the Appellant in Counts 1, 5, 6, 15, 16, 31 & 32, appealed against herein by the Appellant? (This Issue was distilled from Grounds 4 & 5 of the Notice of Appeal).

 

It was submitted on the first issue (supra) that the operative influence or inducement that led the victim of the crime alleged in counts 1, 5, 6, 15 & 16 of the charge sheet in pages 3, 6 & 7 of the additional record of appeal (additional record) to part with the sum of money aforementioned was that the monies represented the cost of processing the award of a contract No. FMMEP/131/FCN/94 by the Federal Ministry of Mines and Power, which representation was false which was at variance with the evidence of PW2, the alleged victim of the crime, and Exhibits P4 and P7 contained in pages 26 - 28 and 38 of the record of appeal (the record) which documentary evidence should be preferred to oral evidence and that the Court below was wrong in convicting the appellant for the offences stated in the said counts of the charge sheet in defiance of the binding decisions of the Supreme Court in that wise vide the cases of Ijuaka v. C.O.P. (1976) 6 - 7 SC 99 at 102 - 105, Awobotu v. State (1976) 4 SC 27 at 58 - 59, R. v. Barker 5 Cr. App. R. 285, Ligali and Anor. v. Queen 4 F.S.C. 7, African Newspapers Nigeria Ltd. v. F.R.N. (1985) 2 NWLR (pt.6) 137, Osakue v. Federal College of Education Asaba (2010) All FWLR (pt.522) 1601 at 1625, Okonjo v. Odje and Ors. (1985) 10 SC 267 at 268 - 269, Eke v. F.R.N. (2013) All FWLR (pt.702) 1748 at 1804, Aiki v. Idowu (2006) All FWLR (pt.293) 361, Akinbisade v. State (2007) All FWLR (pt.344) 17, Nguru v. Mobil Producing Nigeria Unlimited (2013) All FWLR (pt.677) 665 at 689, Mandilas and Karaberis Ltd. v. Otikiti (1963) 1 All NLR 22, Cap Plc v. Vital Investments Ltd. (2006) All FWLR (pt.342) 1502 at 1542, Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (pt.77) 445, Fashanu v. Adekoya (1974) SC 83.

 

It was submitted on the second issue (supra) that in light of the fact that counts 1, 5, 6, 15 and 16 of the charge sheet were laid under the Advance Fee Fraud and Other Related Offences Act, No. 13 of 1995, as amended by Act No. 62 of 1999 (Act No. 62 of 1999), the law in force at the time the offences were allegedly committed, the conviction and sentence of the appellant having been made after the repeal of the Act No. 62 of 1999 which was replaced with the Advanced Fee Fraud and Other Related Offences Act, 2006 (Act of 2006) which provides for lesser minimum sentence of 7 years in prison in Section 1(3) thereof instead of the 10 years in prison provided by Act No.62 of 1999, the Court below was wrong in sentencing the appellant to 10 years in prison under the repealed enactment.

 

It was argued on the third issue that the Court below having found that there was no evidence showing the appellant personally forged any document it was perverse and wrong for the Court below to have speculated and convicted the appellant of forgery and uttering a false document on the speculative premiss that the appellant was a participis criminis to counts 31 and 32 of the charge sheet relating to forgery and uttering a false document, respectively, when the said essential ingredient of the two offences were not proved beyond reasonable doubt vide the cases of Alaka v. State (1991) 7 NWLR (pt.205) 567, Smart v. State (1974) SC 173, Osondu v. F.R.N. (2000) 12 NWLR (pt.682) 483, Pam v. Mohammed (2008) All FWLR (pt.436) 1868 at 1937, Omidiora v. F.C.S.C. (2008) All FWLR (pt.415) 1807, Odubeko v. Fowler (1993) 9 SCNJ 185, Ajibade v. State (2012) All FWLR (pt.610) 1381 at 1399, Wuyah v. Jamaý??a Local Government Kafanchan (2013) All FWLR (pt.659) 1171 at 1193 - 1194, Gaji v. Paye (2003) FWLR (pt.163) 1377 at 1393 - 1397, Pius v. State (2015) All FWLR (pt.780) 1270 at 1279, Nweke v. State (2001) FWLR (pt.40) 1595, Jegede v. Oluwasesan (2013) All FWLR (pt.671) 1484 at 1506 - 1507, Yakubu v. F.R.N. (2009) All FWLR (pt.498) 387 at 410, Daggash v, Bulama (2004) All FWLR (pt.212) 1666.

 

It was argued on the fourth issue that the Court below did not properly evaluate the totality of the evidence adduced before it; that had the Court below properly assessed the evidence it would have found as a fact that there was no nexus of conspiracy between the appellant and the other two persons, Dr. Jubril Bello and Dr. Elvis Timothy, respecting the count of conspiracy against the PW2; that the Court below would have also found as a fact based on Exhibits P19 and P20 that the payments made therein were for travel expenses which Exhibits P51 and P63 showed were paid into the account of one Emmanuel Obieze with respect to counts 6 and 16 of the charge sheet; also, that had the Court below properly evaluated the evidence it would have found that Exhibit P38 did not contain evidence of transfer of money made by a Frank Berger on behalf of the PW2, nor did the PW2 in his evidence and Exhibit P7 make mention that the payments contained in Exhibits P19 and P39 had nexus with the PW2 and the person named therein as the party that made the payments; and that in view of the fact that the Court below had reached the conclusion in its judgment that the appellant had nothing to do with Lecon Pharmacy Limited which the Court below had acquitted of the offences charged in counts 6 and 16 of the charge sheet, the Court below had no basis to rely on the same evidence it had used in acquitting Lecon Pharmacy Limited to convict the appellant vide the cases of Nadi v. Oseni (2003) 48 WRN 12 at 33, State v. Salawu (2012) All FWLR (pt.614) 1 at 30 - 31, Adekunle v. State (1989) 12 SCNJ 184, Lawson v. State (1975) 4 SC 115, Nwosu v. State (2004) All FWLR (pt.218) 916, Alo v. State (2015) All FWLR (pt.775) 262 at 293, Woluchem v. Gudi (1986) 5 SC 291, Sunday v. State (2013) All FWLR (pt.700) 1396 at 1411.

 

It was also submitted that irrespective of the stance by the appellant to rest his case on the respondent’s case, the respondent as the prosecutor at the Court below had the burden of proving the allegations in the charge sheet beyond reasonable doubt vide the cases of Adeyeye v. State (2013) All FWLR (pt.704) 108 at 111, Ali v. State (2012) All FWLR (pt.610) 1313 at 1331, therefore it was not the duty of the Court below to demand an explanation from the appellant on his relationship with one Frank Berger which led to the transfer of the monies in Exhibits P19 and P39, particularly as the appellant had demonstrated through the cross-examination of PW2 and Exhibits P4 and P7 that the PW2 never mentioned such a relationship or given instruction for the transfer of the monies and that there was, therefore, insufficient evidence of such relationship to warrant the conclusion made by the Court below in convicting the appellant on the basis of such relationship vide the cases of EFCC v. Akingbola (2015) All FWLR (pt.777) 656 at 698, Ali v. State (supra) at 1349 - 1351, Yahaya v. Sarki (2012) All FWLR (pt.656) 458 at 464.

 

It was further argued that the Court below was wrong to hold in page 625 of the record that the bank account said to belong to the appellant having been nominated to PW2 by a Mr. Victor Odozie and a Dr. Jubril Bello, meant that the appellant was part of the scheme to defraud PW2 as a co-conspirator; and that the alleged identification of the appellant by the PW2 and PW3 having been already discountenanced by the Court below as not having been properly done the Court below was wrong to rely on the unsubstantiated facts to draw the inference that the appellant was guilty of the offences in counts 1, 5, 6, 15, 16, 31 and 32 of the charge sheet when there were other inferences from the evidence showing the innocence of the appellant vide Mabogunje v. Adewunmi (2006) WRN Vol. 19 page 112 at 139 - 140 and Oraetoka v. Ajia (2006) All FWLR (pt.321) 1312 at 1323.

 

It was also submitted that the Court below committed grave errors in construing the entries made in the statement of account of Mr. Emmanuel Obieze in Exhibit P63 in pages 176 and 197 of the record with respect to the offences in counts 5, 6, 15 and 16 of the charge sheet when the two entries did not establish the commission of the offences charged as they did not disclose that the appellant obtained the monies in question, nor was the sum of money which was $11,940 and $19,800, respectively, the same as the $12,000 and $20,000, respectively, stated in the said counts; therefore the Court below should have applied the principle of certainty of evidence it had used earlier in discharging LECON Pharmacy to give the appellant the benefit of the doubt; and not having done so it amounted to speculation and unfair and improper evaluation of evidence by the Court below, more so it was not a fact the Court below should have judicially noticed vide Alo v. State (2015) All FWLR (pt.775) 262 at 265, Olagesin v. State (2013) All FWLR (pt.670) 1357 at 1382, Okadigbo v. Ojechi (2011) All FWLR (pt.601) 1556 at 1590.

 

The appellant went on to contend that in the absence of documentary evidence, it was wrong for the Court below to speculate a relationship between PW2 and one Mr. Frank Berger on the transfer of monies in Exhibit P63 when another entry of the transfer of money amounting to $19,871.00 on 09-04-97 by a Frank Berger into the account of one Mr. Emmanuel Obieze was not explained by the respondent, more so the respondent did not link the transfer of money in Exhibit P37 by a Frank Berger to Lecon Pharmacy Limited to the said transfer of money in Exhibit P63 to the PW2ý??s relationship with a Frank Berger with respect to the alleged transfer of monies to the appellant on 09-04-97 in Exhibit P63 which doubt should have been resolved by the Court below in favour of the appellant vide Oladotun v. State (2010) All FWLR (pt.532) 1685 at 1705 - 1706 and Salawu v. State (supra) .

 

The appellant further submitted that it amounted to improper evaluation of the evidence when the Court below having held that the respondent failed to establish the most important ingredient of the offence of forgery to the effect that it was the appellant that forged and uttered the document in count 31 and the Court below should not have convicted the appellant of the alleged offences; and that the PW2 having testified that he received the document through electronic means via facsimile, the failure by the respondent to connect the appellant to the telephone number used in the facsimile sent to the PW2 or  adduce evidence of any one the appellant procured or conspired with to forge and/or utter the documents in counts 31 and 32 to PW|2 was fatal to the case of the respondent vide Arije v. F.R.N. (2015) All FWLR (pt.771) 1558 at 1587 and Nwaobasi v. State (2008) All FWLR (pt.446) 1974 at 1991 - 1992.

 

The appellant concluded by requesting for the appeal to be allowed and a verdict entered discharging and acquitting him of the offences for which he was convicted by the Court below.

 

The crux of the case was put by PW2 in his evidence-in-chief in page 438 of the record thus -

“The contract I was promised was never given to me. I did not get my money back.”

Then in page 445 of the record the PW2 stated under cross-examination thus -

“Overall, all the payments I made on the request of Dr. Bello and Dr. Odozie in respect of a supply order proposed to my company and all the payments were made said to be for the processing of the order. I received several documents from Min of Mines & Power Finance, CBN. These documents were sent by telefax to the company, office. There was no contract at the end and all the monies spent were lost”.

 

With respect to Exhibit P7 the PW2 stated in page 447 of the record under cross-examination that -

“No. It was that when the contract is executed the contract funds will be remitted.”

When asked under cross-examination whether there was a pending contract in Exhibit P7, the PW2 answered in page 448 of the record that -

"This is clear. Contract settlement means to finalise documents on my behalf for the contract documents".

Yet to another question on Exhibit P7, the PW2 answered under cross-examination in page 448 of the record that -"??No. This is not what it was. Dr. Bello told me he will get me a lawyer to conclude the contract documentation?".

When asked under cross-examination in page 449 of the record that the remittance he made in Exhibit P7 was for contract executed, the PW2 explained in the same page 449 of the record that -

"This was the advice the money will be paid once the contract is executed. This was explained to me by Dr. Bello".

The PW2 then stated under further cross-examination in page 449 of the record that -

"This is the first time the company will do business with Nigeria and based on contracts and discussions with Bello, I was confident he knew how the order would progress in Nigeria and he explained to me that all these had to be done this way in Nigeria and he said these have to be done before the contract"?ý. (My emphasis).

 

The PW2 therefore gave reasonable explanation for the alleged inconsistency between Exhibit 7 and his testimony which inconsistency was, in any case, minor and did not remove the core issue that PW2 parted with the monies on the pretext that he would have contract job that never materialised and the money never refunded to him. See Jizurumba v. State (1976) 10 NSCC 156 at 162 thus -

"A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in Court, or the inconsistency may, in- deed, be minor and unsubstantial (as in the case in hand with regard to the evidence of PW4 and Exhibit 3) in which case the inconsistency may fail to discredit his entire testimony. In the instant case, we see no glaring inconsistency between the evidence of PW5 and Exhibit 4".

 

From the explanation (supra), which the PW2 was entitled to make, what had operated on the mind of the PW2 was that he was releasing the monies to the appellant and his cohorts in the expectation that they would process a contract job for him from the Ministry of Mines and Power through their assistance or influence which turned out to be a hoax and ruined the life of the PW2 who put it in these words in page 437 of the record -

The consequence was that we are facing a situation where we lost the money and my wife and I lost our jobs, savings, home, life insurance, everything. This was the point of time I reported this case.

The operative influence or inducement under which the PW2 operated at the material time was therefore in tandem with the false pretence contained in counts 6 and 16 of the charge sheet. I would resolve this issue against the appellant.

 

The appellant was prosecuted under the Advance Fee Fraud and Other Related Offences Act No. 13 of 1995, as amended by Act No. 62 of 1999. At the time of the conviction and sentence of the appellant in 2015 the enactment under which he was prosecuted was repealed and replaced with the Advance Fee Fraud and Other Related Offences Act, 2006, which provides lesser penalty for the offence upon which the appellant was prosecuted, convicted and sentenced than Act No. 62 of 1999.

 

The law under which the appellant was prosecuted, convicted and sentenced is substantive enactment. Its successor is also a substantive enactment. It is settled law that it is the substantive law in force at the time the event or crime or cause of action arose that governs the case at the trial of the action, because there is no vested right in procedure, unlike substantive law where there is vested right vide Owata and Ors. v. Anyigor and Ors. (1995) 2 NWLR (pt.276) 380.

 

The appellant was prosecuted, convicted and sentenced under substantive law and the substantive law in force at the time the appellant committed the offence(s) was the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995, as amended. Therefore the repeal of the Act No. 13 of the 1995 by the Advance Fee Fraud and Other Related Offences Act, 2006 did not extinguish or repeal acts and transactions that were past and closed or done under the repealed Act vide Section 6(1)(a), (d) and (e) of the Interpretation Act 1990 thus -

The repeal of an enactment shall not -

(a)     affect the previous operation of the enactment or anything duly done or suffered under the enactment.

(d)     affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment.

(e)     affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

And any such investigation, legal proceeding or remedy may be instituted, continued and enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed"?ý. (My emphasis).

 

The Court below was, accordingly, right to convict and sentence the appellant under the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995, under which the appellant had committed the offence(s) charged. I would also resolve this issue against the appellant.

 

From the welter of evidence before the Court below it was clear that the appellant had a link with the document said to be uttered and forged vide in particular the evidence of PW6 in pages 503 - 507 of the record where the PW6 stated unchallenged that the documents in question were fabrications and the Court below held so in pages 631 - 632 of the record with which I agree especially where it held in page 632 of the record as follows -

"It is not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. All persons who are participles criminis are liable as principal offenders. See Agwuna v. A.G. Federation (1995) 5 NWLR (Pt.396) 418.

Prosecution counsel relied heavily on the case of Osondu v. FRN (2000) 12 NWLR (pt.682) 483 at 504 - 505 where the Court of Appeal held that where a document is shown to be used as an intermediate in step in a scheme of fraud in which an accused person is involved, if it is shown that such a document was false and was presented or uttered by an accused in order to gain advantage, an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit the forgery.

Based on the above, I hold the prosecution has proved the counts of forgery and uttering against the 1st defendant being a participant in the scheme to defraud PW2.

He is accordingly found guilty and convicted for counts 31and 32". (My emphasis).

 

The Court below was, in my considered opinion, right to rely on circumstantial evidence to convict the appellant of the offences of forgery and uttering under counts 31 and 32 of the charge sheet, as the surrounding circumstances of the case presented by the witnesses for the respondent pointed irresistibly and conclusively in one direction that the appellant participated in the forgery and the uttering of the documents in question.

 

Circumstantial evidence is often the best evidence where direct evidence is lacking, especially in sophisticated criminal ventures like the one in hand. See for example the case of Felicia Akinbisade v. State (2006) 17 NWLR (pt.1007) 184 at 203 as follows -

"There is overwhelming evidence that the appellant operated the fraudulent account. How could she have done this without knowledge of the existence of the account? I entirely agree with the learned trial Judge that if the appellant did not open the account personally, she must have aided, counselled or procured someone to open the account and that brings her in terms with Section 7 of the Criminal Code of Ogun State. It is not in all cases that absence of evidence of handwriting expert is prejudicial to the case of the prosecution. While such evidence could be a desideratum in some cases, it is not invariably so. Where there is a very strong connecting link between the accused and the document to the extent that the circumstances zero on the commission of the offence by the accused, the Court is entitled to draw the inference circumstantially that the accused was the author of the document and therefore the author of the crime. It is because our adjectival law realises that it is not in all cases that direct evidence of an eye witness is possible that the law has carved out a niche to assimilate or accommodate circumstances surrounding the commission of an offence; a position which leads to the admission or admissibility of circumstantial evidence."(My emphasis).

Accordingly, I find no substance in this issue and hereby resolve it against the appellant.

 

The judgment of the Court below is in pages 589 - 633 of the record. It contains the perception and the evaluation of evidence. The perception of the evidence and written submissions are in pages 589 - 613. While the evaluation or assessment of the evidence is in pages 613 - 632 of the record where the Court below did extensive appraisal of the relevant documentary and oral evidence which is supported by the evidence in the record and squared with the ingredients of the counts in the charge sheet upon which the appellant was convicted.

 

The judgment therefore contained the summary of the evidence, the point(s) for determination, the reasons for determination and the reasons for the decision or conclusion which made it a good judgment in a criminal trial. I do not fault the judgment. With the said proper evaluation of the evidence the Court below undoubtedly discharged the onerous primary duty of appraising/assessing the evidence in the rather laborious case which has left no room for me to intervene in the assessment of the evidence in question. See Omogodo v. State (1981) 5 SC 5, Udedibia v. State (1976) 11 SC 133, Obidike v. State (2014) 10 NWLR (pt.1414) 53, Akinbisade v. State (supra) at 211.

 

On the whole, I find the appeal lacking in merit and hereby dismiss it. I would affirm the findings of fact of the Court below in this rather pathetic case in which the appellant and his cohorts have sent a sad signal to the international community that fraudsters operate with ease in our dear country. The conviction and sentence of the appellant is also hereby affirmed. I commend the Court below (Obadina, J.) for the painstaking proceedings and judgment.

 

SIDI DAUDA BAGE, J.C.A.:

I have had a preview of the judgment prepared and just delivered by His Lordship, JOSEPH SHAGBAOR IKYEGH, JCA, having equally read the briefs of argument of the respective learned counsel vis-ý-vis the record of appeal, I have no hesitation in concurring with the reasoning and conclusion reached in the judgment, to the effect that the instant appeal lacks merit and is also hereby dismissed by me.

 

The consequential order for the conviction and sentence of the Appellant is also hereby affirmed.

 

YARGATA BYENCHIT NIMPAR, J.C.A.:

I had the privilege of reading the judgment just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.

 

The judgment considered all the issues distilled by the parties and it leaves no room for me to add anything. I also dismiss the appeal and affirm the judgment of Hon. Justice Obadina. I abide by the consequential orders made in the lead judgment. 

 

 

 

 

 

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