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TIPTOP INDUSTRIES LIMITED
COURT OF APPEAL
LAGOS JUDICIAL DIVISION
14TH DECEMBER 2000
BEFORE THEIR LORDSHIPS:
ATINUKE OMOBONIKE IGE JCA
SULEIMAN GALADIMA JCA
PIUS OLAYIWOLA ADEREMI; JCA
Gbenga Owolabi, ESQ. – for the Appellants
Princess R. M. Akiri – for the Respondent
PRACTICE AND PROCEDURE – DAMAGES – Libel-Assessment of- General damages- whether inflation relevant-Relevant considerations in assessment in libel cases – Whether proof is necessary in libel cases
TORT “Publication” – Connotation of in libel cases-Defence of justification – Purport of in cases of libel
CONSTITUTIONAL LAW- Fair hearing – Importance and fundamental nature of – Application of doctrine of -Fair hearing and hearing within a reasonable time – Duty on court to balance the requirements thereof
ETHICS – Negligence of counsel – When court would take a sympathetic look – Addresses of counsel – Essence of
PRACTICE AND PROCEDURE – ACTION- “Trial” – Meaning of
COMMERCIAL LAW – AGENCY- Vicarious liability – Criminal offence
Lead Judgment Delivered by Galadima, JCA
This is an appeal against the judgment of Akande J. of the Ikeja High Court Division of Lagos State, in suit No. ID/1408/89, delivered on 23/3/94.
The respondent as plaintiff claimed against the appellants, as the defendants jointly and severally, the sum of N5 million damages for libel and also for an order of perpetual injunction for repetition of the alleged libel. The appellants having been served with the respondent’s statement of claim, with the leave of the lower court filed and served out of time their statement of defence. The respondent thereafter filed a reply to the statement of defence.
Issues having been joined, trial commenced, with only the respondent who gave oral evidence of his own behalf. The learned trial judge entered judgment in favour of the respondent thus:
“I am therefore satisfied that the plaintiff has established a cause of action in libel and that there was a publication of the libelous words…”
Dissatisfied with this judgment the appellant appealed to this court on FOUR GROUNDS contained in the notice of appeal dated 8/6/94. The following FOUR ISSUES were identified in their brief for determination:
“1. Whether the appellants were afforded the constitutional opportunity of fair hearing having regard to the circumstances of this case?
The respondent on the other hand also postulated the following issues in his brief of argument for determination:
“Whether having regard to all the circumstances of this suit, it will not amount to putting too much premium on indolence, apathy and nonchalance for the appellants who actually consented to the adjournment of the suit on 2/11/93, for address, and to all intents and purposes, were aware of the next hearing date to insist that their constitutional right to fair hearing was violated because no hearing notice was issued and served on them (appellants) before the address of the respondent was taken on the 8th of February, 1994?
In the alternative:
Whether having regard to all the circumstances of this suit, the non-issuance and service of a hearing notice on the appellants before the respondent’s address on 8th February, 1994, deprived the appellant of their right to fair hearing in this suit?
The FOUR issues posed by the appellants are apt and adequate. They considered, since respondents had adopted the second and third issue of the said brief.
The first issue deals with right to fair hearing. It was submitted by the respondent’s counsel that the appellants were given adequate opportunity to state their defence as guaranteed by section 33 (1) and section 36(1) of the 1979 and 1999.
Constitution of the Federal Republic of Nigeria.
In our adversary system of jurisprudence each party to a case must be afforded an ample opportunity of defending himself. The question of whether a party has been given adequate notice to answer the case he has to meet will depend on a careful consideration of the facts and circumstances of each particular case. The test to be applied in each case is an objective one, based on the impression of a reasonable and fair minded observer at the trial. See Mohammed V. Kano N. A. (1968) 1 All NLR
424 at 426; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 444.
I am of the opinion that the appellants were given fair hearing in this case considering the following facts and circumstances.
On 2/11/93 at p.33 of the record of proceedings the following was the court’s proceedings of that day viz:
Appearance – Mr. B. B. Dickson, with him is Mr. Anochie,
Mr. Lapite B. O. appears for defendants.
Mr. Lapite says the defendants’ counsel has written a letter to plaintiff to settle matter out of court and he wants the matter adjourned. But Mr. Dickson says he still wants the court to allow him address. Both counsel agree he (sic) adjourn till 6th November, 1993, for address.
COURT: Case adjourned till 16th November, 1993, for address by plaintiff counsel.
On the 16/11/93, the court did not sit as there was nationwide industrial action, and the matter was adjourned for mention on 13/12/93;
On 13/12/93, only the respondent counsel was present in court when the matter was adjourned to 8/2/94 for address, No appearance for defendants.
On 8/2/94 only the respondent’s counsel was present in court. No appearance for defendants and no letter for his absence was sent to court. On this day the respondent’s address was taken by his counsel, Princess M. Akin, and judgment was fixed for 23/3/94.
It would appear that on 8/2/94 that is, eighty-four days after the matter was adjourned for address, the appellants and their counsel did not bother to go to court and find out what happened on 16/11/93. As it was shown on previous occasions neither did the appellants nor their counsel consider it necessary to explain their absence. The court ought to frown at this conduct. It is not for the court to continue to wait indefinitely for the convenience of a party. For justice delayed is justice denied.
I have analysed and considered objectively the above proceedings with dates. I find it difficult to believe that the appellants did not have prior and sufficient notice and knowledge of the date fixed for address. Their conduct shows. There was sufficient time, 84 days to be precise, really elapsed between when the case was originally fixed for address and when the address was taken. This afforded the appellants opportunity to have discovered the new date. It was not necessary for the trial court to have ordered the fresh issuance and service of a hearing notice on the appellants as the appellants’ counsel has contended.
Once more I consider the events of 2/11/93. It was on this date the case was adjourned till 16/11/93 for address by the respondent’s counsel. The law practice has its discipline. Its age-long practice is that when there is a public-holiday or supervening day, then it is imperative on a mind and diligent counsel, conscious of his obligation and duty to his client and the administration of justice, to appear in court on the next working day with a view to finding out the fate of his matter in court.
Counsel to the parties, or their respective clients were expected to be in court on 16/11/93 when the address was to be taken. I consider it as an act of dereliction of professional duty of the appellants’ counsel to refuse to turn up in court on 16/11/93 to conduct a case in which he has earlier on agreed to appear and conduct to conclusion, unless he was allowed to withdraw by leave of court. He cannot be heard to complain that he was not served with a hearing notice. For a period of three months are appellants’ counsel who actively participated in the proceedings on 2/11/93 and consciously chose a date for address, now abandoned the case and went into slumber awaiting the court to awake him by issuance of another hearing notice. The appellants themselves like their counsel did not help the matter. They abandoned their case without due consideration of the serious consequences. The appellants themselves are as negligent as their counsel. They had exhibited nonchalant attitude towards this case at the lower court. In John V. Blakk (1988) 1 NWLR (Pt.72) 648 at 653, this court has this to say:
“When on exceptional cases counsel is established to be guilty of negligence, a situation deserving of the most favourable consideration arises if and only the litigant has not himself been guilty of negligence”
Having known that matter was adjourned to 16/11/93 for address, the learned counsel and indeed the appellants themselves ought to have taken diligent steps to check and ascertain the date the matter was adjourned to. I do not think there was any obligation on the part of the court to issue any fresh notice on the appellants or the respondent in the circumstances.
The appellants actively participated in the trial of the suit up to the stage when the case of the respondent was closed on 2/11/93. It would seem though that the appellants’ complaint in this appeal is not with respect to the proceeding before 13/12/93, but those of 16/11/93 and 8/2/94. These proceedings relate to counsels address only.
The Supreme Court, in the case of Garba & Ors. v. The University of Maiduguri (1986) 1 NWLR (Pt.18) 550 at 617 paragraphs B-C defines a “trial” as follows:
“A trial is merely the finding out by due examination of witnesses or documents or both, the truth of a point in issue or a question in dispute whereupon a finding is made or judgment is given.
“A trial is a step in an action, prosecution or other judicial proceeding by which the questions or facts in issue are decided.”
(See also the Dictionary of English Law 2nd Impress (1965) 1959) Ed. p. 1780 – by Earl Jowitt).
Addresses of counsel are designed to assist and guide the court. Cases are not normally decided on addresses but on credible evidence. Addresses cannot be regarded as substitute for evidence, which the appellants, in this case chose not to give having been granted ample opportunity to do so. See Niger Construction Ltd. V. Okugbeni (1987) 4 NWLR (Pt.67); Michika I. G. v. N.P.C. (1998) 11 NWLR (Pt.573) 201 at 212.
Having participated fully in the trial at the lower court, it is to my mind, a misconception for the appellants to contend that their right of fair hearing was breached by reason of not being served with a hearing notice before the respondent’s address was taken. In appropriate cases courts have ordered hearing notices to be issued and served on parties. However, this practice cannot be insisted upon in all cases nor considered an absolute requirement in our legal system. It is not in all cases that the absence of it will automatically vitiate trials in the context of S.36 of the 1999, Constitution.
A hearing notice is not therefore a mandatory judicial process that must be issued and served in all cases.
In Akin Folorunso v. Shaloub (1994) 3 NWLR (Pt. 333) 413 at 430, “a hearing notice” was defined thus:
’A hearing notice’ is defined as a process of the court by which a party to the proceedings is notified of the date the case has been fixed in court where he is not otherwise aware of such a date.”
By the above definition, it stands to reason that a hearing notice ought not to be issued or served on parties and/or their counsel who already know or are reasonably expected to know of the date when the matter is to come up for consideration. It will amount to an over indulgence for courts to go out of their way to issue and serve hearing notices on parties or their counsel who were in court or aware of the next date of adjournment. Courts will not adopt this position; as it will amount to unwittingly promoting indolence, nonchalance in the conduct of cases, without taking into consideration the provision of section 36(4) of 1999 Constitution which requires hearing of a suit within a “reasonable time’.
The courts must balance the requirements of fair hearing with the requirements of hearing to be within a reasonable time. The supreme court held in the case of Salu V. Egeibon (1994) 6 NWLR (Pt.348) 23 at 40, that:
“…where the requirements of fair hearing outweigh the necessity for a speedy trial a Judge or court should not hesitate to grant an application for an adjournment. Where however, a party indulges in dilatory tactics, it could not be said that party is aiming at a fair being done to the opposing party. In such a case a Judge or court hearing rather, that a party is using the due process to should have enough courage not to lend weight to such act of filibustering and should be firm and in refusing application for adjournment.”
In the same vein, this court in the case of General Oil Limited v. Oduntan (1990) 7 NWLR (Pt. 163) 423 at 442, has this to say:
“The Constitution of the Federal Republic of Nigeria, 1979 in its section 33, provides for the quick dispensation of justice in the total fair hearing package. This being a constitutional provision, all the courts of the land must not only kowtow to it, but must enforce it at all times and for all times.”
See also Wallesteiner v. Moir (1972) 3 All E.R 217 at 232.
Delay defeats the notion of Justice. It poses great danger to the smooth administration of justice. From the records the appellants were afforded every opportunity to defend the suit against them.
There is clear indication in the judgment of the learned trial judge, at pages 59 and 60 of the record that she was quite mindful of the constitutional provision in the second arm of section 36(1) regards to speedy trial.
I do not think the case of Julius Berger (Nig.) Ltd V. Femi (1993) 5 NWLR (Pt.295) 612 at 615 relied upon by the appellants’ counsel is on all fours with the case in hand. It is distinguishable. In the instant case all the parties have closed their case and the trial has been concluded and adjourned for address. The appellants took active part in the trial. They chose not to present an alternative version of the case. They simply adopted the evidence of the respondent. The decision the Kaduna Court of Appeal in Julius Berger case (supra) was decided per incuriam the second limb of section 33(1) of the 1979 Constitution. In the latter case of Kaduna Textile Ltd v. Umar (1994) 1 NWLR (Pt 319)143 at 159 the same Division of the Court of Appeal clearly did not support tardiness and negligence in the conduct of cases by counsel or their clients.
On the SECOND ISSUE, the appellants submitted that going by the pleadings and evidence led on the case at the lower court, the case of libel was not established. The respondent on the other hand has contended and submitted that the respondent proved the libel against the appellants as required by law. I have carefully perused through the pleadings of the parties and the evidence placed before the trial court. The appellant though afforded the chance to give evidence, did not tender before the trial court any scintilla of evidence, oral or documentary.
The trial court had before it only the unchallenged evidence of the respondent to consider. It was duty-bound to accept this unchallenged evidence: See Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) 124 at 136; Omoregbe V. Lawani (1980) 3/4 SC. 108 at 118.
The respondent evidently and satisfactorily proved libel against the appellants. The respondent testified on oath that the appellants wrote Exhibit ’C’, the libelous letter. The appellants’ statement of defence shows clearly that the appellants admitted writing Exhibit ’C’ and publishing same to the persons named by the respondent in his pleadings and evidence.
Paragraphs 11, 12, 15 of the statement of defence put beyond doubt the admission of the appellants that they were the authors of Exhibit ’C’, while paragraph 16 is also clear admission that Exhibit ’C’ was published to James Cubitt Architects and others, whose names and identities were supplied copiously by the respondent in his uncontroverted evidence. See pages 8, 9, 23, 24 and 25 of the original record of appeal and page ’C’ as inferred from paragraph 11 of the statement of defence, was to protect the interests of the appellants against any subsequent acts of the respondent with respect to their property. The circulation of Exhibit ’C’ was therefore to alert and warn the other consultants and persons involved in the construction of appellants’ property in Victoria Island, Lagos, not to trust the respondent. This is the inevitable inference if respondent’s evidence is taken and read together with paragraphs 2, 11, 15, 16 and 19 of the appellants’ statement of defence. It is trite that there is no burden of proof of facts that have been clearly admitted. See section 75 of the Evidence Act, Cap. 112, 1990, Laws of the Federation and the case of Okoya v Santilli (1994) 4 NWLR (Pt. 338) 256 at 316; U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254 at 270 and Adeyemi V. Bamidele & Alaka (1 968) 1 All NLR P.31 at 36.
No issues were joined on the publication of Exhibit ’C’ by the appellants. In law, it ought not to go for trial as there is no contest at all. Since no alternative evidence was placed before the trial court, the learned trial judge was bound to decide the case in favour of the respondent. The decision in Fawehinmi V. Akilu (1994) 6 NWLR (Pt.351) 387, relied upon by the appellants is not apposite this case. It is distinguishable. That decision was an interlocutory judgment. A part from the statement of claim, no statement of defence was filed. To be able to react to certain paragraphs of the statement of claim, in that case alleging publication of the defamatory material to certain media establishments the appellant, Fawehinmi requested for further and better particulars such as the names of any of those people to whom the publications were made, and the manner the publications were made or conveyed to them. It was decided, inter alia that he was entitled in law and equity to further and better particulars as demanded before the delivery of his defence. Here, unlike the case under consideration, there was neither a statement of defense admitting publication, nor was any evidence adduced by the plaintiff.
The appellants have admitted fact of facts in issue and have deliberately refused or neglected to contradict the evidence of the respondent. In law there is sufficient proof of the fact or facts in issue, which is the publication. In the supreme court decision in Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 297, the term “publication” was held to connote and applied as in this case where both the pleading and the unchallenged evidence clearly establish that Exhibit ’C’ was written and circulated to known persons.
I find the submission of the learned counsel for the appellants that the respondent being principal of the buying agent, is therefore absolutely responsible for their short-comings, is not tenable in this case.
The general proposition of the law is that the act of an agent for a particular purpose is the act of the principal. This is on condition that the agent did what the principal asked him to do. Mr. Alagbokun was purposely engaged by the respondent to procure palm kernels which meet some specific quality. If he had gone to purchase palm kernels which did not meet the specific quality and which were unacceptable to the appellants, then, clearly the respondent would have been liable. But in this case the failure of an agent to deliver was due to the criminal acts of the agent not approved by the principal.
Fraud is a criminal offence. It involves criminal imputation, and therefore mens rea. The respondent cannot generally be liable for the fraud of Alagbokun or any other agents whose duty was strictly to purchase palm kernels and no more than this. Unless it can be proved that the respondent had a guilty mind in respect of that offence and has indeed participated in it. See Mandilas & Karaberis Ltd. And Fitton v. I. G. P. (1958) SCNLR 335;(1958) 3 FSC 20. The respondent was not implicated. To the knowledge of the appellants’ agent (Mr. Oridoye), he took every reasonable step to ensure that the transaction was crime proof. He insisted that the purchase of the kernels should be by bank draft. When the fraud was discovered he promptly reported the matter to the police. The police investigation had exonerated him. The appellants were advised to seek legal redress in the law court.
In the light of what I have said above, I hold that the case of libel was established against the appellant. I therefore resolve this second issue in favour of the respondent.
ISSUE THREE is whether the award of N3 Million, plus N10, 000 as damages and cost against the appellants was as a result of the judicial and judicious exercise of the discretion of the learned trial judge.
The learned counsel for the appellant submitted that the award of N3 million in favour of the respondent is excessively high, having regard to the pleadings and evidence led in the matter.
In attacking the quantum of the award the learned counsel for the appellant has argued that the learned trial judge was biased by allowing extraneous factors to influence her. According to the counsel, there was nothing “reprehensible” in the conduct of the appellants as shown by the record. The counsel for the respondent on the other hand submitted that the award of N3 Million in favour of the respondent was well founded.
The term “reprehensible” in the context in which it was used by the lower court means reprovable or blame worthy.
Going by this simple definition and taking into account the various acts of the appellants itemised in “b” – “g” at pages 59 – 60 of the record of proceedings, the learned trial judge, did rightly come to the conclusion that the conduct of the appellants was reprehensible, blameworthy and reprovable, right from the filing and service of the writ of summons to a stage when the learned trial judge felt unnecessary to wait for the appellants to conduct their defence at their own convenience.
Take the question of delay for instance. I think the learned trial Judge freely expressed what would be the attitude of courts to delayed justice. This reaction of courts is replete in a plethora of decisions of the Supreme Court and indeed this court.
Dilatory tactics by a party who unduly delays the trial of a case must be seen as condemnable conduct.
I must also say that the charge of bias and over-zealousness levelled against the learned trial Judge is unfounded having regard to the factors she took into account in her judgment.
It would appear that the learned counsel to the appellants took the observations of the trial judge in item ’d’ in isolation. This ought to be read together with items ’c’ and ’d’. When items ’c’ and ’e’ are read together with item ’d’, it becomes clear that the writing and the publication of the libel was indeed reckless. This is so because the appellants’ case, as postulated in their statement of defence is that they wrote and published Exhibit ’C’ because the contents of Exhibit ’C’ are true. The appellants relied on the plea of justification. In law a defendant who pleads justification is emphatically asserting the correctness and authenticity of the libellous material. What he is saying is that he is quite right and can substantially support the libel. At the trial the appellants did not in anyway substantiate the allegation of libel in Exhibit ’C’. They failed to appear at the trial to defend their plea of justification.
The recklessness of the publication becomes glaring when regard is given to the fact that the respondent testified that he has refunded a total sum of N222, 000, to the appellants, leaving only a balance of which the respondent withheld for unpaid services rendered to the appellants. This evidence was not challenged; yet the appellants exposed the respondent to odium and disrepute before his business associates. It would appear that the sum of money due from the respondent was only N18, 000 and not N240, 000 as alleged by the appellants.
It would appear to me that the learned trial judge was right to have taken into consideration the status of the respondent as a structural engineer of many years standing, in awarding damages. The fact that the respondent was a structural engineer with 19 years post experience to his credit is in evidence before the lower court. The libelous letter was not written and copied to palm kernel dealers or some lowly members of Okitipupa Community and environs, but to the professional colleagues and business associates of the respondent. They were important persons and consultants in the business community. These were the very persons, who before the writing and publication of Exhibit ’C’ held the respondent in high esteem and before whom the respondent was disparaged as fraudster, swindler and a man of unquestionable character who should be avoided.
The palm kernels dealers in Okitipupa may never have dealt with the respondent as a structural engineer. The learned trial Judge was right in taking into consideration the professional status of the respondent in awarding the sum of N3 million.
Whatever criteria is used in assessing damages reference must be had to the evidence in the case and the subject-matter of the action. In so doing the difficulty faced by the courts when called upon to assess damages in a libel cases would be assuaged.
See H. R. H. Uyo v. Egware (1974) 1 All NLR (Pt. 1) 293 at 296. In Rook v. Fairrie (1941) 1 KB. 507 at 516 Lord Greene, M.R., succinctly captured the difficulty faced by the courts in assessing damages in libel case thus:
“When you are dealing with damages in a libel case, you are endeavoring to express in terms of money, several different things which are not really susceptible to money valuation in any true sense. You are considering the injury, which the plaintiff has suffered which may or may not be capable of pecuniary valuation. You are considering the conduct of the defendant because you may award punitive or exemplary damages against him. You are considering the deterrent effect and so forth.”
In the case of McCarey v. Associated Newspapers Ltd (No.2) (1965) 2 Q.B. 87 at 104, Pearson J. opined that in a case where damages are at large as in libel case, the factors to be taken into account include “not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantage which result but may include the natural injury to his feelings.” The learned trial judge clearly took respondent’s injured feelings into account when in her judgment she said at p.60 of the record that:
“… all these factors show that the defendants did not show any remorse and did not care whether or not the plaintiff’s reputation or feeling is injured.”
Other factors which the courts have considered in assessing damages in libel cases are the social standing of the plaintiff and the rate of inflation which has adversely affected the value of the national currency. See Daily Times v. Williams (1986) 4 NWLR (Pt.36) 26.
I am of the opinion that the N3 Million awarded is most justified, having regards to the unchallenged evidence of the respondent’s social status.
Although the trial Judge did not specifically mention inflation as one of the factors which she took into account, there is every reason for me to believe that the low value of Naira affected her consideration of assessment of damages. While reviewing the address of respondent’s counsel in her judgment at page 55 of the record, she alluded to the counsel’s submission on the depreciating value of Naira and the need to take that into account when fixing damages. She said thus:
“She (Counsel) therefore urged the court to award the sum of N5 million as damages being claimed in view of the fact that the value of N5 million today was like the value of N100, 000 ten years ago since the purchasing power of the Naira has depreciated so much.”
The courts have taken into account, the spiraling inflation when assessing damages generally. See Onagoruwa v. I G.P. (1991) 5 NWLR (Pt. 193) 593 at 650; and Daily Times v. Williams (supra).
I do not concede to the appellant’s contention that the N3 Million award be disturbed because little or no evidence was led to the extent of damages caused to the respondent by the publication. Libel is actionable per se. Proof of damages is unnecessary.
The reason is that every libel is a civil wrong and the law implies general damages. See Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1 at 15. In the instant case the respondent did not ask for aggravated or exemplary damages, which must be specifically proved. The award by the lower court was premised on the principles applicable to general damages. See pp.59 and 60 of the record.
The learned trial Judge has exercised her discretion judiciously and judicially. Going by the well established principle of law that a trial Judge’s discretion ought not to be interfered with by an appellate court if the exercise of the discretion is based on the correct principle of law, even though the appellate court would have come to a different decision. Discretion will lose its character and import if it does not command some level of subjectivity and arbitrariness.
N3 million is not too much to atone for the injured feelings of the respondent, his social and business status, when the importance of the respondent’s reputation is considered. For it is acceptable philosophical saying for all ages that:
“When wealth is lost, nothing is lost, when health is lost, something is lost, but when character is lost everything is lost’.
With respect to ISSUE FOUR, it would appear that no specific amount was asked for by the respondent’s counsel. Although cost follows event, having considered all the circumstances of this case. I think the cost of NI0, 000 was punitive, N5, 000 should have been appropriate. It is that, that I will award.
As regards the order that the appellants should apologise in the three National Dailies retracting the defamatory words complained of by the respondent in Exhibit ’C’. This was not one of the reliefs the respondent sought for in his writ and statement of claim. The counsel to the respondent has conceded that it was not one of the reliefs asked for by the respondent.
Courts are enjoined to refrain from granting relief not sought for. See Okeke-Oba V. Okoye (1994) 8 NWLR (Pt. 364) 504. See also the dictum of Akpata JCA (Of Blessed Memory) in the case of Adejumo V. David Hughes & Co. Ltd. (1989) 5 NWLR (Pt.120) 146 at 157 which is instructive.
Orders of courts ought not to be dished out like a bolt from the blues as the learned trial Judge gratuitously did in the instant case. She did not hear any of the parties or their counsel in respect of the said order. In the circumstances it must be reversed. It was ordered without basis.
In the sum, this appeal is not entirely unmeritorious as it succeeds partially. I have said that the respondent is entitled to only costs of N5, 000 in the court below. I award no costs in this court.
Ige and Aderemi JJCA both concurred with the lead judgement.