On his part, learned senior counsel for the first respondent Tayo Oyetibo, SAN in the first respondent brief filed on 2nd October, 2012 submitted that it is not open for the appellants to now contend that the first respondent was not validly sponsored by the second respondent or that the second respondent did not conduct primary elections which produced the first respondent because the case of the appellants in their pleadings was that the first respondent was sponsored by the second respondent at the election and that whilst litigation was pending, the second respondent conducted fresh primaries where first respondent was chosen as its candidate for the election. For this learned senior counsel referred to paragraphs 3 and 7(c) of the petition at pages 12- 14 of the record; that the case of appellants was that first respondent was not qualified to contest the election because there was pending litigation at the Supreme Court in Appeal No. SC/9/2012 over the question who was qualified to contest the election on the platform of the second respondent. Learned senior counsel also referred the court to paragraphs 4 and 7(b), (c) and (h) of the petition in further support of his contention and submitted that parties are bound by their pleadings and are not allowed to approbate and reprobate, relying on Ude vs Nwara (1993) 2 NWLR (Pt. 278) 638 at 662; Oredoyin vs Arowolo (1989) 4 NWLR (Pt. 114) 172 at 208.
It is the further submission of learned counsel that there is a difference between publication of the names of candidates for an election by the third respondent and sponsorship of candidates for an election for which learned senior counsel referred the court to Section 221 of the Constitution and Section 31(1) of the Electoral Act, 2010 (as amended by Section I0 of the Electoral Amendment Act 2010); that first respondent proved that he was sponsored by second respondent for the election vide Exhibit ‘’Q” and ‘’R” which are documents submitted to third respondent by second respondent in manifestation of its intention to sponsor 151 respondent; that a candidate whose name has been submitted by a political party as its candidate for an election has a vested right to contest the said election irrespective of the fact that third respondent did not or failed to publish his name as a candidate for the election because the third respondent has no power to reject any candidate so nominated.
Turning to the provisions of Section 34 of the Electoral Act, 2010 as amended, counsel submitted that failure by the third respondent to comply with the said provision is not a ground for disqualification of a candidate for an election because qualification or non-qualification for an election is governed by Sections 177 and 182 of the Constitution; that an order made by a court of competent jurisdiction must be obeyed as same remains valid until set aside by an appellate court; that even if there was non-compliance with Section 34 of the Electoral Act, 2010, appellants have not shown that it was a substantial non-compliance to justify a nullification of the election of the 1st respondent; relying on Section 139 of the Electoral Act, 2010, as amended.
Learned senior counsel then urged the court to resolve the issue against appellants. With regards to the submission of learned senior counsel for the second and third respondents on the Issue No. 1 , it is noteworthy that the submissions are very similar to that of senior counsel for 1st respondent.
However, learned senior counsel for second respondent contended that Exhibit “N” is an order of court which the Trial Tribunal and the lower court were bound to obey as its efficacy is not determined by whether it was interim or interlocutory or final; that there was no issue joined on the pleading at the trial relating to the withdrawal of the suit in which Exhibit “N” was made and as such the lower courts were right in giving effect to the said Exhibit ‘’N”.
On his part, learned senior counsel for the third respondent submitted that first respondent was validly nominated by second respondent and his name submitted to third respondent which published same within seven (7) days as required by Section 31 of the Electoral Act, 2010; that the fact that the name of first respondent was later removed by the third respondent but restored by the order of the Federal High Court did not have anything to do with whether or not the first respondent was not qualified at the time of the election; that non-compliance with the Electoral Act, 2010 is not one of the listed qualifications of a candidate for Governorship Election under Section 177 of the 1999 Constitution; that publications of names of candidates in an election is the domestic decision of the third respondent and a candidate cannot be punished for the default of the third respondent in publication of names of candidates; that the election was not challenged on the ground of non-compliance with the provisions of the Electoral Act, 2010; that appellants should not be allowed to continue to change their case from court to court relying on Adegoke Motors Ltd vs Adesanya (1989) 3 NNLR (Pt. 109) 250 at 266; Ajide vs Kelani (1985) 3 NWLR (Pt. 12) 248 at 248.
In their reply on points of law learned senior counsel for appellants submitted that it is true that an order of court need not be final or interlocutory for it to be obeyed but that the order in question must be subsisting for it to be obeyed as an interim order is not binding in perpetuity; that it is predicated on the pendency of a case, which if terminated takes along the said interim order.
I had earlier in this judgment reproduced the grounds on which appellants sought the nullification of the election and the reliefs claimed. The grounds were two initially:
(a) non-qualification of first respondent to contest the election and,
(b) that first respondent did not score the majority of lawful votes at the election.
Later in the proceedings ground (b) was abandoned thereby leaving only ground (a).
The facts which supported the grounds are stated in paragraph 7 of the petition, also reproduced in this judgment, particularly 7(b)(c)(f)(g) and (h). The main plank on the facts supporting the ground is that there was a restraining order made in Suit No:-
“FHC/ABJ/CS/931/2011 restraining the second respondent from conducting any fresh primaries to choose a candidate for the said Election, whereof the second respondent appealed to the Court of Appeal Abuja in Appeal No. CA/A/599/2011. While the restraining order of the Federal High Court was still subsisting the second respondent conducted fresh primaries where it purported to choose first respondent as its candidate at the said election; that the third respondent published the list of qualified candidates for the said election in the media, including the interest. The name of the first respondent was not on the list and second respondent had no candidate on the said list ….” and that:-
“…. The first respondent obtained an order ex parte at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/3/2012 to include the name of first respondent as the candidate of the second respondent at the said election”.
Finally appellants pleaded in sub-paragraph (h) of paragraph 7, inter alia-
“that in view of the pending litigation at the Supreme Court in Appeal No. SC/9/2012 over the question of who is qualified to contest the said election on the platform of the second respondent and the said question having not been resolved in favour of first respondent as at the date of the holding of the election on 11th February, 2012, the first respondent was not qualified to contest the said election, and the inclusion of the name of first respondent as a candidate in the said election was against the Rule of Law, unconstitutional and therefore null and void…..”
I have to state from the onset that it is settled law that issues for trial are joined in the pleadings and that parties and indeed the court are bound by the pleadings of the parties.
The appeal haven arisen from the decision of the lower courts on the ground as to whether first respondent was qualified to contest the Governorship Election of Bayelsa State held on 11th February, 2012, it is necessary for us to know what the law/constitution provides as the requirement that a candidate for that office must possess. In that respect, we have to take a look at Section 177 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (hereinafter referred to as the 1999 Constitution, as amended) which provides as follows;-
“A person shall be qualified for election to the Office of Governorship of a state if-
(i)He is a citizen of Nigeria by birth;
(ii)He has attained the age of thirty-five (35) years;
(iii) He is a member of a political party and is sponsored by that political party, and;
(iv)He has been educated up to at least School Certificate Level or its equivalent”.
From the argument of learned senior counsel for appellants, it is clear that they are contending that the first respondent, though a member of a political party was not sponsored by that political party as its candidate for the election in issue, in breach of Section 177(iii) supra.
The other Section of the 1999 Constitution as amended relevant to the issue of qualification or non-qualification of a candidate for the office of Governor of a state is Section 182 of that constitution which enacts as follows: –
ii. 182(1) No person shall be qualified for election to the office of Governor of a State if:-
(a) subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) he has been elected to such office at any two previous elections; or
(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(e) within a period of less 10 years before the date of election to the Office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
(g) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or
(h) he is a member of any secret society; or
(i) he has presented a forged certificate to the Independent National Electoral Commission.”
However, it is not the contention of the appellants that 1st respondent has fallen foul of the above provisions (i.e. Section 182).
The question is whether first respondent was sponsored by second respondent as its candidate for the election in issue. While appellants contend that he was not the respondents maintain that he was. The case of the appellants is simply that the controversy surrounding the primaries of the 2nd respondent which would have resulted in the nomination of its candidate for the election in question was not resolved that is why no name of a candidate of the 2nd respondent was ever published by 3rd respondent for the said election; that the 3rd respondent only included the name of 1st respondent as candidate for the election after the receipt of Exhibit ‘’N”, which they argue became spent with the withdrawal and striking out of the action in which the interim order was made, ex parte. However, it is very important to note that appellants admitted that 1st respondent was nominated/chosen at the primaries conducted by 2nd respondent to choose its candidate for that election during the pendency of an action to determine the proper candidate of the 2nd respondent – see paragraph 7 of the petition supra.
I have looked carefully at Exhibit ‘’N”. Two orders or reliefs granted by the Federal High Court in that order and relevant fm our purpose me nos. 2 and 4 which are as follows: –
“(2) An order that the leave of this Honourable Court so granted shall operate as an order of interim injunction directing the respondent to restore the name of the applicant as the candidates of the Peoples Democratic Party (PDP) in the 2012 Gubernatorial Election in Bayelsa State scheduled to hold in the 11th day of February, 2012, pending the determination of the motion on notice.. ..
(4)An order that the leave of this Honourable Court so granted shall operate as an order of INTERIM INJUNCTION restraining the respondent from further removing or excluding the name of the applicant and his running mate as the duly nominated candidates of the Peoples Democratic Party (POP) in the 2012 Gubernatorial Election in Bayelsa State scheduled to hold on the 11th day of February, 2012, pending the determination of the motion on notice.”
It is very clear from the above that while order/relief No. 2 “restored” the name of 1st respondent as the candidate of the 2nd respondent to the list of candidates to contest for the Office of Governor of Bayelsa State, relief No. 4 “restrained” the 3rd respondent from further removing or excluding the name of the 1st respondent and his running mate as the duly nominated candidates of the 2nd respondent.
There is no doubt that the orders contained in Exhibit “N” are ex parte and made in the interim. Also clear from the orders is the fact that while relief (2) is mandatory or restorative in nature, No. 4 is prohibitive.
It is settled law that an injunction is a judicial process or mandate operating in personam by which upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction is also a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice or restraining an act which it deems contrary to equity and good conscience – see Ohakim vs Agbaso (2010) 19 NWLR (Pt.1226) 172 at 228
The simple issue or question arising for determination is whether the order of the court restoring the names of 1st respondent to the list of candidates for the election in question which was duly carried out by 3rd respondent who was ordered or commanded so to do and which became spent after the withdrawal of the suit in which it was made, took along with it the action already completed by the 3rd respondent while the order in question was in operation. Put another way, does the death of Exhibit ‘’N” following the striking out of the suit mean that whatever it effected while alive, such as the restoration of the name of 1st respondent should be considered as having never existed in the eyes of the law? Generally speaking interim orders are not permanent as they are made to last for a while — usually pending the determination of the suit or motion on notice as in this case. The legal question in this issue is whether whatever such interim orders achieved in the interim can be ignored or considered non-existent after the expiration of the time it was in operation particularly when the order is mandatory in nature and the command had been obeyed? Can the law undo what had been done in obedience of court order in the circumstances of this case?
I do not think that the coming to an end of an interim order adversely affects whatever that order was meant to achieve or achieved. If the order was a restraining order you cannot say that while it lasted or remained in operation, the party sought to be restrained was never restrained. It only means that the restrain is now at an end and that the party is free of the restraint.
The same applies where the order is restorative or mandatory in terms of relief No. 2 supra. In this case, the order was obeyed by restoring the name of 1st respondent in the list of candidates and the election in question was subsequently conducted and 1st respondent declared the winner thereof before the coming to an end of the reign of the order. If the contention of appellants is accepted it means that whereas at the time the said election was conducted, 1st respondent was the sponsored candidate for that election by 2nd respondent and he won it – both completed acts, the court should pretend that these things never happened because the interim order which allegedly gave legality or validly to the act has ceased to exist. Unfortunately for the case of appellants Exhibit “N” had achieved its purpose before becoming extinct. It was obeyed by 3rd respondent as it is constitutionally required of every person or authority in this country to do so.
I hold the considered view that the extinction of Exhibit “N” following the striking out of the suit in which it was made and after it was carried out does not retrospectively affect whatever the order secured or effected at the time it existed. If it conferred any right on a party that right remains valid and subsisting unless set aside on appeal by a court of competent jurisdiction. In this case, the 3rd respondent who was affected by the order never challenged it but obeyed same.
The above notwithstanding there is the issue of Exhibits “Q” and “R” which were tendered by 3rd respondent through DW1 under cross-examination in the following terms:-
“I am aware that the 1st respondent filed (sic) Form CF001 at /NEG Office.
He also filed (sic) Form EC46(ii)- Nomination Form. At pages 1- 17 of the document given to me by counsel are Form CF001 and Form EC4B(ii). The document relates to the 151 respondent 2 Forms. Chief Awomolo -I seek to tender the 2 Forms.
Mr Adedipe: No objection.
Chief Gadzama: No objection
Mr. Atali: No objection.
Tribunal: The two documents are admitted in evidence as Exhibits “Q” and “R” respectively”—see page 452 of the record.
I have carefully gone through Exhibits “Q” and “R”. They are stamped received by INEC, 3rd respondent on 8th December, 2011. Exhibits “Q” and “R” include the nomination forms completed by 1st respondent in respect of the election in question. It is very clear therefore that by December 8, 2011, the name of 1st respondent had been submitted by 2nd respondent as its candidate for the election in issue thereby making 1st respondent one of the candidates for the said election.
The above position is strengthened by Exhibit “N” which ordered 3rd respondent to “restore” the name of 1st respondent to the list of candidates contesting for the Office of Governor of Bayelsa State scheduled for 11th February, 2012 particularly as you can only restore what was earlier in existence but subsequently taken out or away. You cannot restore what was never there in the first place
The wording of Exhibit “N” lends credence to the case of the respondents that 1st respondent was the sponsored candidate of 2nd respondent for the election and that 1st respondent’s name was on the earlier lists published by 3rd respondent but was later removed leading to Exhibit “N” ordering that the name be “restored” in the list. I therefore agree with the concurrent findings of fact on this point by the lower courts.
In any event, paragraph 3 of the petition of the appellants at page 12 of the record puts the issues of nomination and sponsorship of 1sl respondent by 2nd respondent beyond doubt, as the appellants pleaded inter alia as follows:-
“ The 1st respondent who was sponsored by the 2nd respondent at the said Election was declared the winner of the said election by the 3rd respondent ….”
Finally there is the sub-issue of publication of the names of candidates for election by 3rd respondent as a condition precedent for valid nomination.
I have pondered over the submissions of counsel for appellants on this sub—issue and have not clearly seen the connection between publications of the names of candidate by 3rd respondent and qualification to contest any election to which the publication or non-publication relates. I hold the view that publication of names of candidates by 3rd respondent is not evidence of sponsorship by a political party which nominated the candidates. Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd respondent as its nominated candidate for the election – see Section 31 of the Electoral Act, 2010, as amended, which enacts thus:
“(1) Every political party shall not later than sixty (60) days before the date appointed for a general election under the provisions of this Act}submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections} provided that the Commission shall not reject or disqualify candidate(s) for any reason whatsoever.
(2) The list of information submitted by each candidate shall be accompanied by affidavit sworn to by the candidate at the Federal High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
I had stated earlier that Exhibits “Q” and “R” were received by the 3rd respondent on 8th December, 2011 for an election slated for 11th February, 2012, a period of more than sixty (60) days as required by the above provisions of the Electoral Act, 2010, as amended.
It is true that Section 34 of the electoral Act, 2010, as amended makes provisions for or enjoins the 3rd respondent to publish names of candidates from election but I hold the view that the provision though employed the word “shall” is not mandatory but discretionary as its effect is the same as the word “may” which is permissive. Publication of the name of a candidate cannot validate an otherwise invalid nomination and sponsorship of a candidate. In a situation where the 3rd respondent fails or neglects to publish the names of an otherwise validly nominated candidate of a political pa1iy for an election, the failure cannot be visited on the candidate to deprive him of the right conferred on him by the nomination to contest the election in question. Once a candidate has been nominated and his name sent by his political party to the 3r·d respondent as its candidate for the election, the candidate remains a candidate and cannot be changed or substituted, as long as he remains alive after the submission of his name, unless the candidate voluntarily withdraws from the race see Section 33 of the Electoral Act, 2010, as amended. Publication by 3rd respondent therefore is truly an administrative act with no serious legal consequences on the nominated and sponsored candidate in case of failure to publish the name.
To my mind, what is crucial in this case is the issue of nomination and sponsorship as envisaged under Section 31 of the Electoral Act, 2010, as amended, not publication of the names of candidates under Section 34 of the said Act. Once it has been established by Exhibits “Q” and “R” that 1st respondent was nominated and sponsored by 2nd respondent for the election in issue and he contested same, the issue of his nomination and sponsorship has been established.
The next issue which also relates to Issue NO.1, already discussed is Issue No. 2 – whether the lower court rightly affirmed the decision of the Trial Tribunal which rejected Exhibits “D” and “L” tendered by the appellants counsel from the bar and admitted in evidence.
It is the submission of learned senior counsel for appellants that admissibly yof e-documents under the Evidence Act, 2010 is governed by the provisions of Section 84 thereof; that Exhibits “D” and “L” are e-documents as they are internet print out from undisputed websites of the authors; that it was wrong for the tribunal to have expunged the exhibits from the record and the lower court to affirm their reasons from doing so – that is that they were not certified true copies; that admissibility of a document at trial is determined by relevance, relying on Okoye vs Obiaso (2010) 8 NWLR (Pt. 1195) 145 at 163.
It is the further contention of learned senior counsel that Exhibits “D” and “L” do not fall into the usual public documents which require certification; that
Exhibits “D” and “L” are admissible under Section 84 of the Evidence Act, 2010; as the documents being computer generated do not need to be certified to make them admissible in evidence; that the lower court was in error when it affirmed the decision of the trial tribunal on the matter and urged the court to resolve the issue in favour of the appellants.
On his part, learned senior counsel for the 1st respondent stated that Exhibit “D” is an internet print out of the Punch Newspaper which makes it a secondary evidence of the original newspaper having regards to the provisions of Sections 85 and 87(a) of the Evidence Act, 2011; that by virtue of the provisions of Sections 90(1)(c)and 102(b) of the Evidence Act, 2011 only a certified true copy of the document is admissible; that by the provisions of Section 4(1) and 7(c) of the National Library Act, CAPN56 Laws of the Federation 2004, copies of every newspaper published in Nigeria has to be deposited with the National Library by the publisher, which makes such copies public documents by virtue of Section 102(b) of the Evidence Act, 2011; that Exhibit “D” requires certification to make it admissible in evidence.
In the alterative, counsel submitted that for e-documents to be admitted under Section 84 of the Evidence Act, 2011 subsection 4 thereof requires that there be a certificate identifying the document and describing the manner and the state of the devices through which they were produced; that since Exhibit “D” had no such certificate, it was inadmissible; that since Exhibit “D” was to establish the fact that 1 st appellant scored the highest number of valid votes if 1 st respondent were to be held disqualified with the abandoning of Ground 2 of the petition, the document, Exhibit “D”, became irrelevant in the proceedings and therefore inadmissible; that the court has powe1· to expunge from the record document/evidence that it comes to know is legally inadmissible, relying on
N.I.P.C Ltd vs Thompson Organization Ltd (1966) 1 NMLR 99 at 1 04; Kankia vs Maigemu (2003) 6 NWLR (Pt. 817) 496.
The submission of learned senior counsel for the 2nd and 3rd respondents on this issues are very similar to that of senior counsel for 1 st respondent and as a result I do not intend to reproduce them herein as that would serve no useful purpose.
Granted, for the purpose of argument, that Exhibits ‘’D’’ and ‘’L’’ being computer generated documents or e-documents clown loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011
Section 84(1) provides thus:
“ (i) in any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the condition in sub-section (2)of this section are satisfied in relation to the statement and the computer in question”.
The conditions are:-
(a) That the documents containing the statement was produced by the computer during a period over which the computer was used regularly to store or process the information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody whether corporate or not or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) That throughout the material parts of that period the computer was operating properly or if not that in any respect in which it was not operating properly or was out of operation during that point or that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
There is no evidence on record to show that appellants in tendering Exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011.
No wonder therefore that the lower court held, at page 838 of the record thus:-
“A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called, established the conditions set out under Section 84(2) of the Evidence Act, 2011”.
I agree entirely with the above conclusion. Since appellants never fulfilled the pre-conditions laid down by law, Exhibits “D” and ‘’L’’ were inadmissible as computer generated evidence/documents. It is settled law that what determines the issue of admissibility of evidence is relevancy, what is the relevance of Exhibit ‘’D’’ in the proceedings? The lower court found/held and I agree with the court that it was intended to prove that 1st appellant scored the highest number of valid votes cast in the election in the event the 1st respondent is declared not qualified to contest the election; that with the withdrawal of Ground 2 of the petition to which Exhibit “D” is relevant, the document became irrelevant and consequently inadmissible in evidence The court made the findings/holdings at pages 839 – 840 of the record as follows:-
“However, Exhibit “D” is meant to show that appellants scored the highest number of votes cast at the election in the event the 1st respondent was held to have been disqualified, Ground 2 of the petition which supported this contention was abandoned by the appellants.
Having abandoned Ground 2, Exhibit “D” which was produced in support of the ground had ipso facto become irrelevant even though it was admitted. I therefore agree with learned counsel for the 1st and 2nd respondents who submitted that the tribunal was right in striking them out for being irrelevant.
However, looking closely at Exhibits “D’, and ‘’L’’ there are clearly public documents and it is settled law that the only admissible secondary evidence of public documents is a certified true copy of same. Exhibits ‘’D’’ and ‘’L’’ not being certified true copies of the Punch Newspaper and the list of candidates which 3rd respondent is mandated to keep in the course of the performance of its official duties, are clearly inadmissible in evidence and the lower courts are right in so holding. The fact that the exhibits are c0mputer print outs or e-documents does not change their nature and character as public documents.
On the sub issue as to whether the court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel it is settled law that the courts can do that and has been doing that over the years—see NIPC Ltd vs Thomson Organisation Ltd (1966) 1 NMLR 99 at 104 where LEWIS, JSC stated the law as follows:-
“lt is of course the duty of counsel to object to admissible and the duty of trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court to when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted’.
ln short, I resolve this issue against appellants.
ln conclusion, I see no reason, having regards to the resolution of Issues 1 and 2 which I consider crucial to the determination of the appeal against the appellants, to go into the remaining issues as the same have become irrelevant and of no moment; they have become hypothetical and are consequently discountenanced by me.
I therefore find no merit whatsoever in the appeal which is accordingly dismissed by me. I however order that parties bear their costs.
Appeal dismissed
