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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 13, May, 2014 SUIT NO: NICN/ABJ/191/2013 Between: Atabo Okpanachi Claimant AND Inspector General of Police (IGP) & Another Defendants REPRESENTATION Claimant present defendants absent: No legal representation for the parties. JUDGMENT By a complaint dated and filed on the 18th July 2013, the claimant instituted this suit against the Inspector General of Police and the Police Service Commission claiming the following reliefs jointly and severally (a) A declaration that the dismissal of the claimant from the police force is unlawful, wrongful, irregular, unconstitutional, null and void. (b) An order nullifying the dismissal of the claimant from the police force and restoring the claimant to his position as police officer with effect from the date of his purported dismissal. (c) An order directing the defendants to pay the claimant all his salaries, emoluments, allowance as a police officer from the date of the purported dismissal. (d) An order directing the defendant to accord the claimant all his promotions he would have earned during the period of the purported dismissal. (e) An order awarding general damages of Five Million Naira (N 5,000,000.00) only. The complaint is accompanied by a statement of claim, of 44 paragraphs, witness statement on Oath deposed to by the claimant on the 18th of July, 2013 at the Registry of this court, list of 16 documents to be relied upon at the trial and list of witness to be called. These frontloaded processes is in compliance with the rules of this court. The originating processes were served on the 1st and 2nd defendants on the 29th of August 2013 and on the 28th of August 2013 respectively. The defendants never entered appearance in this suit. Several hearing notices were issued and duly served on them and these hearing notices were duly acknowledged as received by the defendants. The 1st defendant was served with hearing notices on 19th September 2013, 4th of November 2013, 29/8/2013, 2nd of December 2013, 16th of January 2014 while the 2nd defendant was served with hearing notices on the 16th of September 2013, 4th of November 2013, 2nd of December 2013 and on the 16th January 2014. Upon the service and acknowledgment of all these hearing notices, the defendants still found it convenient not to defend the suit. Upon the conclusion of hearing, the claimant counsel’s written address was also served on them on the 19th and 20th of December 2013 respectively. The claimant opened his case on the 30th of October 2013. The claimant testified as the sole witness in this suit. He adopted his written witness statement on oath sworn to at the Registry of this court on the 18th of July 2013 as his oral testimony. This same document was admitted in evidence and marked as Exhibit AO1. The following documents were also tendered in evidence during trial and marked as Exhibits. (1). Commendation letter dated 4/10/2012 as Exhibit AO2 (2). Appeal against orderly Room trial dated 23/7/09 as Exhibit AO3 (3). Appeal against orderly Room trial dated 18/08/10 as Exhibit AO4 (4). Appeal against orderly Room trial dated 10/04/2012 as Exhibit AO5 (5). Appeal against orderly Room trial dated 4th July 2013 Exhibit AO6 (6). Appeal against orderly Room trial dated 18th August 2010 as Exhibit AO7 (7). Appeal against orderly Room trial dated 28/10/2009 as Exhibit AO8 (8). Solicitors letter on appeal on orderly Room trial Exhibit AO9 (9). Letter from defendant dated 16/05/2013 as Exhibit AO10 (10). Police Interim Report dated May 3rd 2009 is Exhibit AO11 (11). Submission of orderly Room proceedings dated 18 July 2009 Exhibit AO12 (12). Special promotion letter dated 30th July 2007 Exhibit AO13 (13). Appeal against orderly Room trial under reference dated 7th January 2011 as Exhibit AO14 (14). Police wireless message dated 6th 2012 as Exhibit AO15 (15). Letter dated 13/12/10 on appeal against orderly Room trial Exhibit AO16 (16). Letter of 7th August 2012 is Exhibit AO17 At the close of evidence for the claimant, this suit was further adjourned for cross examination of the witness by the defendant and since they were not forthcoming the case of the claimant was closed and a formal written address was ordered and adopted on the 28th of January 2014. In the said written address dated and filed on the 18th of December 2013, the claimant counsel Mr. Isaac E. Ekpa formulated a lone issue for determination by the court which is: “whether the claimant proved his case to be entitled to the reliefs sought in this claim” Counsel submitted that in a civil case of this nature, the onus of proof which is on the basis of preponderance of evidence and on balance of probability is on the claimant. Counsel cited sections 134 and 135 of the 2011 Evidence Act as amended and the case of Akinsanya Vs Soyemi 1998 8 NWLR pt 560 49 at 58 – 59 paragraph H – A; Okereke Vs Nwankwo (2003) 9 NWLR (pt 826) 592 at 615 paragraph E. Counsel contended that since the evidence of the claimant remain uncontroverted, unassailable and unchallenged, the court should believe it and give judgment to the claimant. Counsel called in aid the cases of Balogun Vs Egba Onikolobo Community Bank Nig. Ltd 2007 5 NWLR (pt 1028) 584 at 601 paragraph E – F. Oladapo Vs Bank of the North Ltd 2001 I NWLR (pt 694) 255 at 263 paragraph G – H. Ejiogu Vs NDIC 2001 3 NWLR pt 699 I at 10 paragraph B. Counsel further submitted that where evidence adduced in a trial is one way i.e undefended as the defendant did not appear to cross examine or defend the suit as in this case, the law requires a minimal proof on the part of the claimant. Counsel buttress this submission with the case of Consolidated Resources Ltd & I or Vs Abofar Ventures Nig Ltd 2007 6 NWLR pt 1030 at 231 paragraph C – E. Counsel submitted further that the persecution of the claimant from the available evidence started with a very bias and unsubstantiated allegation emanating from a spurious interim report alleging leakage of information to arm Robbers by claimant and collecting money from them as well. Counsel contended further that this allegation which led to the orderly Room trial of the claimant was marked with bias, injustice, lack of fair hearing and prejudices including the following (1) There was no formal charge preferred against the claimant before the trial. (2) There was no investigation report (3) The claimant was denied opportunity to call witness in the orderly Room trial. (4) There is no notice or communication of the award of punishment till date. (5) There is no investigation on the allegation before the trial. (6) There is no investigation’s report on this matter before the trial (7) The punishment awarded at the orderly Room trial has not been published in the claimants service Record till date. Counsel contended that all these breaches offends the police Act and the police Regulation Cap P 19 Laws of the Federation of Nigeria 2004. It is the submission of Mr Ekpa, counsel to the claimant that the Commissioner of Police and the Inspector General of police have no powers under the law to discipline police officers, that the power of discipline vested in the 2nd defendant i.e the Police Service Commission cannot even be delegated to the Inspector General of Police. Counsel refers this court to the decision in the cases of Kelvin Nwagbu Vs Inspector General of Police & Others Suit No NICN/ABJ/186/2012 delivered by Sogbola J. on 20/6/13. Ozoana Vs Police Service Commission (1995) 4 NWLR pt 391 629 at 638 paragraph G – H. It is the further submission of counsel that since the claimants employment is with statutory flavour and due process was not followed in his disengagement, his dismissal should be voided and annulled. He referred this Court to the case of Iderim Vs Rivers State Civil Service Commission 2006 16 NWLR (pt. 951) 378 at 396 – 396. Counsel finally urges the court to grant the claimant claims. I have carefully read through the evidence of the claimant, his originating processes, the exhibits in this case and the written address of the claimant’s counsel. I am raising two simple issues here for determination (1) Whether the claimant has proved his case (2) Whether the failure of the defendants to enter appearance or file their defences, is deemed to mean that they have admitted all the affirmations of the claimants facts before the court. Since these formulated issues are intertwined, I shall consider them together. It is trite law that in civil cases, the burden of proof in civil case lie on the person who would fail if no evidence at all was given on either side. See section 133(1) of Evidence Act (A.E) 2011. Where therefore the defendants fails to defend a suit or call witnesses, the claimant is not relieved of his responsibility to prove his case. See the case of Yahaya Vs Munchika Chika 2000 7 NWLR Pt. 301. Counsel submitted to this court that because the defendant did not defend the suit, the claimants evidence becomes unchallenged and should be acted upon. It is my humble view that this position is not automatic. The proposition of law that when evidence is uncontroverted or unchallenged, it must be accepted in proof of the issue in contest only holds good when the unchallenged evidence itself is credible. See the case of Akalonu Vs Omokaro 2003 8 NWLR pt 821 190 at 206 – 207. Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as true version of the case it seeks to support. In the same vein, it was decided that whenever any evidence, affidavit, or oral evidence stands uncontradicted unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adverse party. See the case of Iriri Vs Erhurhobara 1991 2 NWLR (Pt 173) 252 at 255. In the case of Broadline Ent. Ltd Vs Moneterey Corp 1995 9 NWLR (Pt 417) 11 it was held that where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstances clearly flows one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharged on minimal proof. In most cases where a plaintiff’s case is not challenged, he succeeds. This is because the trial court has no other case to deal with, other than the case stated by the plaintiff on his statement of claim and in oral evidence or written statement on oath. Where a defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim. See the case of Okoebor Vs Police Council 2003 12 NWLR (Pt 834) 444. In civil cases like the one under consideration, the fate of a case depends on the pleadings and the evidence in support. A matter that is pleaded but not traversed remains a fact against the other side. See the case of Ezeigbe Vs Aghobor 1993 9 NWLR Pt 316 at 150. The failure therefore on the part of the defendants to challenge facts in the pleadings and witness statement on oath of the claimant means that the facts are admitted as all matters not denied in the pleadings raised in the claim and the testimonies of the claimant are taken as admitted See the cases of Balogun Vs EOCB Nig Ltd 2007 (Pt 1028) 5 NWLR 587; Waziri Vs Ali 2009 4 NWLR Pt 185. In the witness statement on oath of the claimant which was adopted as his oral testimony in this court, the claimant testified in paragraphs 4,5,6,7,8,9,10,11,14,16,18,20,22,23,24,25,39,40,41 and 43 as follows 4. That the Defendants without following due process purportedly dismissed me from the Police Force pursuant to police orderly room trial report submitted on 18/7/2009 and approved by the Commissioner of Police, Edo State. 5. That as a result of the impeachable record, honestly, dedication and commendation, I enjoyed a special promotion by the Inspector General of Police made on 21/7/2007. I hereby plead a letter dated 30/7/2007 by the Inspector General of Police Force titled Special Promotion with my name at S/No.28. The 1st Defendant is hereby put on notice to produce the letter or else I shall rely on any other copy thereof. 6. That I was a well known gallant Police Officer whose activities had led to the arrest of many robbers and kidnappers. Indeed my name ranked as a “terror” in the kingdom of armed robbers and kidnappers because of my role in arresting them, and in most cases assigned and handled the investigation of high profile robbery and kidnapping cases. 7. That I was on duty on 18/4/2009 as an investigator in special Anti Robbery Squad Office (SARS) Edo State Police Command, Benin City when a case of suspected conspiracy, kidnapping and murder linking two suspects was referred to me for investigation. I made substantial progress and eventually one of the suspect by name Ejike Okeke admitted the alleged offences that took place on 16/3/2009. The investigating team made tremendous progress and arrested eleven (11) other suspects apart from the two (2) handed over to them. The team also made concerted efforts and recovered several arms and ammunition from the suspects on 3/5/2009. The team submitted an interim investigation report to the Commissioner of Police Edo State by a letter dated 3/5/2009 and signed by CSP Bretet Emmanuel. The said letter is hereby pleaded and shall be relied upon at trial. The 1st Defendant is hereby put on notice to produce the original or else I shall rely on any other copy thereof. 8. That the major event that led to my travail, was when on 6/5/2009 while submitting the interim report to the Edo State Commissioner of Police Mr. Danlami Yaradua by the team of the investigators, the Commissioner of Police singled out only me that the information available to him was that I have six (6) vehicle and living above my means. The Commissioner of Police stated further that I collected the sun of N 200,000.00 to pave way for the escape of the principal suspect Mr. Ejike Okeke and a promise to collect another one million, seven hundred thousand naira (N1,700, 000.00) only after the successful escape. He stated further that I contacted the gang members to remove arms and ammunition from the eye of the police. 9. That I instantly denied the entire allegation by the Commissioner of Police and stated that investigation had progressed successfully and substantially, and that various arms and ammunition had been recovered. 10. That the Commissioner of Police instantly on 6/5/2009 ordered my detention and directed Orderly room trial and dismissal, of which his directives was complied with, without proper investigation. 11. That the interim investigation report indicted some police officers and powerful members in the society. It is a bid not to get to the truth of the matter that collusion took place between high ranking officers to get me out of the case to sweep the allegation under carpet. This prompted the extra judicial killing of the major suspect Mr. Ejike Okeke who could have provided information to trace the culprit particularly as he (Ejike Okeke) refused to give tutored incriminating evidence against me during the Orderly room trial. My travail was that if am allowed to continue with my professional duty of discrete police investigation, many more head will rolls. Indeed the investigation of this high profile case was swept under the carpet after existing me from the investigation and the Police Force. 14. That in reaction to the allegation that I phone the wives of Sunday Nwachukwu and Ifeanyi Ngam in detention, I replied that I obtained permission of my Superior Officer, the Officer in Charge of SARS CSP Emmanuel Bretet and Officer in Charge of Investigation ASP Ojo Ojiede which my said reaction was not investigated by any team of investigator or the Officer that conducted the Orderly room trial. 16. That to show that the police had already made up their mind against me, a signal was sent to Inspector General of Police indicting me guilty of divulging information to members of armed robbers even before the interview with Commissioner of Police and the Orderly room trial. This evidence was given by my Investigating Police Officer (IPO) Sgt Emmanuel Ukwu (PW13) 18. That there was no iota of evidence from the thirteen (13) witnesses called during the Orderly room trial indicating that apart from calling the wives of the suspects to bring food to their husband in detention which is very normal, there was no other communication between us particularly relating to hiding arms and arranging for the escape of any suspect. Hence my indictment of divulging official secret and discreditable conduct is not tenable. 20. That in the instant case there was no investigation report on the allegation against me sent to Commissioner of Police for endorsement before the Orderly room trial was ordered, which is not in compliance with the police Act and if any, the 1st Defendant is hereby put on notice to produce same at trial. 22. That I was detained for seventy-eight (78) days i.e from 6/5/2009 to 22/07/2009 at Ughor Police Station, Benin City. The Station Dairy hereby pleaded and that the 1st Defendant is hereby put on notice to produce same at trial. 23. That despite my copious evidence at the Orderly room trial and my application to call certain witness, this was not done as required by the police regulation. 24. That also in the instant case I was never served with a written notice of award of punishment as required by the police regulation. Rather I was orally informed that I have been dismissed, and police officer followed me to my house at the Police Barrack to eject me and members of my family after collecting all police properties in my custody. 25. That the police regulation also required that the record of punishment must be published in the Force Order which was not complied with in this case. Also the requirement that any punishment awarded to a junior Officer shall be recorded in Service record was not complied with in this case. 39. That the finding and recommendation of the adjudicating officer manifestly contravene the provisions of the Police Rules and Regulations in that I was not allowed to sign my statement as evidence of confirmation and my right to call witness in the person of Officer in Charge of SARS CSP Emmanuel Bretet and Officers in Charge of Investigation ASP Ojo Ojiede. This indeed is one of the aspects the adjudicator refused to record. The above named officers were vital witnesses to my defense as to whether I obtained their permission before calling the wives of the suspect to bring them food. 40. That the source of information to the Commissioner of Police Edo State that led to the Orderly room trial was never disclosed to me, neither was such informant or the Commissioner of Police called at the trial to enable me cross examine them to test their veracity and authenticity. 41. That the finding of the Adjudicating Officer that I have N 1, 775,992. In my bank account over a period of thirteen (13) months was never a based on any evidence before it. 43. That I have been put into untold hardship since my detention from 6/5/2009 to 23/7/2009, and thrown out of barrack with my family and properties without giving me a letter of dismissal. It should be remembered that these pieces of evidence remain uncontradicted and unchallenged. In exhibit AO12 which is the copy of the orderly Room trial, the claimant was alleged to have made calls to tell some Robbery gang suspects to stay away to prevent their arrest. It is incredible that no attempt was made by the police to investigate at the service provider’s office or even to look at the phone itself to determine preliminary whether such call was made by the claimant. None of the wives of the suspects who were called on phone by the suspect to bring food for their husbands in police cell in Benin or any of the witness in orderly Room trial ever incriminate the claimant on issue of collecting N 200,000 or any other money to compromise the case; in fact, one of the prosecution witness in the orderly Room trial who was also a suspected Armed Robber testified that he never discuss about escape, money or removing of gun exhibit with the claimant. The same fact goes for Boniface Ogbor, one of the suspected Robber and a witness at the orderly Room trial. The claimant has testified to the fact that no formal charge was given to him contrary to the content of exhibit AO 12 . The charge was duly read to him before the commencement of the orderly Room trial as shown in exhibit AO 12 Counsel submitted that the Commissioner of Police has no disciplinary powers over the claimant who is a sergeant in the Nigeria police force. I disagreed with this submission; The combined effect of sections 373 and 380 of the Police Regulation made as a subsidiary legislation to the police Act Cap P 19 Laws of the Federation of Nigeria 2004 reveals that the power of discipline of junior staff and rank and file have been delegated to the Commissioners of Police as competent authorities. The cases of Ozoana Vs Police Service Commission (Supra) and the decision of this court in Nwagwu Vs Police Service Commission (Supra) being commended to the court as precedent to be followed by counsel are not on all fours with this case as the cases cited dealt with Superior Police Officers from the Rank of ASP and above which can only be discipline by the Police Service Commission. The evidence of the claimant reveals that the defendant did not make out any investigation report about the allegation of misconduct leveled against him before the commencement of orderly Room trial contrary to section 377 of the police Regulation Cap p 19 LFN 2004. The claimant was not also served with any memorandum of charge/allegation to enable him reply in writing before the orderly room trial contrary to section 383 of the police Regulation Cap p 19 LFN 2004. It is also a fact that the claimant was not given any notice of award of punishment neither was the award published in the force order or service record contrary to sections 385&387 of the police Regulation Cap p 19 LFN 2004. On the 10th of March 2014, this court invited parties to address it on the issue raised suo motu which borders on the protection afforded public officers under the Public Officers Protection Act Laws of the Federation of Nigeria 2004 as may be applicable to this case since the defendants are public officers within the meaning of the law. Consequent upon that order Mr. Ekpa, counsel to the claimant filed a further final written address on the 19th of March 2014 wherein he submitted by formulating a lone issue for determination as follows:- “whether the action of the claimant in this case is statute barred having regard to provision of section 2 of the public officers protection Act” Counsel referred the court to statement of claim in this suit and urge the court to hold that paragraph 3 therein shows that the cause of action arose in this case on the 18th of July 2009 when the orderly room trial report containing the dismissal of the claimant was submitted and approved by the Commissioner of Police Edo State without following due process. Counsel contended that the only competent authority to exercise disciplinary control over the claimant is the Police Service Commission and not the Inspector General of Police. Counsel conceded that actions or suit against public officer shall be commenced within 3 months from the date of accrual of right of action but that a public officer could only take protection under the Act if he acted within the “scope of his office” which he equated with “colour of his office”. Counsel cited the case of NEPA Vs Olagunju (2005) 3 NWLR (Pt 913) 603 at 625. Counsel contended vehemently that the actions of the defendants in this case particularly the Edo Police Command from the beginning to the end of the alleged trial falls short of statutory requirement of fair trial and consequently outside the scope of the defendants powers and as such they cannot enjoy the protection provided by the Public Officers Protection Act (POPA) LFN 2004. Counsel also submitted that since there were series of communication between the claimant and the defendants, the right of action should be construed to commence from the date of the last communication which was done in writing. Counsel cited the case of Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nig Ltd 2010 13 NWLR Pt 1211 307 at 329 paragraph A,C – D. Thaidant Vs National Bank of Nigeria 1972 I SC 105 per Coker JSC. It is the argument of Mr Ekpa, counsel to the claimant that until final decision is reach on the claimants case by the defendants, time cannot run against him as regards the three months limitation period. Counsel finally submitted that since the defence never raise the issue of limitation as a defence, the court should consider the oral and documentary evidence in favour of the claimant and grant his prayers. Counsel also sent in as part of his argument the unreported decision in the case of Prince Abubakar Audu Vs Kogi State Government & 2 Others delivered by the High Court of Kogi State on 6/2/2014 in Suit No HCL/23/2010 and A.G. River State Vs A.G. Bayelsa State 2013 NWLR Pt 1340 123 at 148. I have carefully considered the content of this additional written address and the submissions and cases referred to by learned counsel. The case of Prince Audu Vs Kogi State Government borders on land or recovery of land which is not on all fours with the case at hand and by the authority of A.G. River Vs A.G. Bayelsa (Supra) Public Officers Protection Act (POPA) has nothing to do with recovery of land apart from that, the decision of that suit is one of coordinate jurisdiction which is not binding on this court. The decision in A.G Rivers Vs A. G Bayelsa Supra raises 2 main exceptions to the application of Public Officers Protection Act (POPA) which borders on continuous injury or where a public office acted outside the colour of His “office”. The claimant’s dismissal was done by the Commissioner of Police Edo State in 2009. As I had earlier stated in this judgment, the Commissioner of Police acting on a delegated authority under the police Regulations has the power to discipline a junior officer belonging to the Rank and file of the defendant. He acted within the scope, authority and colour of his office; Justice Suleiman Galadima (JSC) who gave the lead judgment in AG Rivers Vs AG Bayelsa Supra also gave the leading judgment in Sulgrave Holdings Incorp. Vs Federal Government of Nigeria (FGN) 2012 17 NWLR Pt 1329 309 at 335 paragraph E – F has this to say:- “my understanding of this provision is that the Act gives the parameter within which a public officer can take protection under the Act. As long as the public officer acts in the usual function of his office, whether he does it correctly of wrongly, he is protected by the section. It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. However, as I have said, where a public officer on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official functions, that is, he act outside the colour of his office, he cannot claim protection under the Act.” In this case at hand, the Commissioner of Police Edo State acted within the normal duties of his office or official function in disciplining a police sergeant, the claimant and as such he is not on a frolic. However, from the evidence before the court, the state of pleadings and the applicable law, it is clear that the defendants and the claimants right from the 18th of July 2009 when the right of action accrued in this case have been exchanging correspondences which were all received in evidence as Exhibit A03, A04, A05, A06, A07, A08, A09, A010, A014, A015, A016, A017. The last letter written by the 2nd defendant Exhibit (A012) to the claimants counsel reads “I am directed to acknowledge the receipt of your letter with the above caption dated 8th December 2012 and to inform you that your complaint is receiving attention Further development would be communicated to you” Apart from other communications and correspondences which falls under the categories of uncertified public document Exhibit A012 quoted above gives unassailable impression that the right of action of the claimant is active, alive and ongoing as it seems to have been revived by the defendant even though it was dead since 18/7/2009 when he was dismissed as shown in paragraph 3 of the statement of claim. The two exceptions stated in AG Rivers Vs AG Bayelsa (Supra) are not closed, neither are there exhaustive. They only represent the two main exceptions. From the totality of what I have said so far in this judgment, it is hereby declared as follows (1) The purported dismissal of the claimant from the police force is unlawful, wrongful, irregular, null and void, and of no effect whatsoever. (2) Since the appointment of the claimant is statutorily flavoured, he is therefore reinstated and restored to his rank with immediate effect. (3) The defendant is hereby ordered to pay the claimant all his salaries, emoluments, allowances as a police sergeant from the date of his purported dismissal. Issue of promotion is at the discretion of the employer. Moreover, promotion is a privileged and not a right under our labour jurisprudence. Consequently relief four of the claimant fails as it is refused. On relief five, the claimant has not proved satisfactorily on how he is entitles to the damages of N5Million from the defendants but based on paragraph 43 of Exhibit A01 which says “I have been put into untold hardship since my detention from 6th of May 2009 to 23rd July 2009 and thrown out of the barracks with my family and properties without given a letter of dismissal” I award a sum of N200, 000.00 damages against the defendants but in favour of the claimant. Judgment is hereby entered accordingly. ---------------------------- - Hon. Justice P.O Lifu JP. Judge