ALHAJI SAIDU YAYA KASIMU v NIGERIAN NATIONAL PETROLEUM CORPORATION (CA/A/80/M/05) [2008] NGSC 2 (8 January 2008)


In The Court of Appeal

(Abuja Judicial Division)

On Wednesday, the 9th day of January, 2008

Suit No: CA/A/80/M/05

 

Before Their Lordships

 

  

MARY U. PETER-ODILI

....... Justice, Court of Appeal

OYEBISI FOLAYEMI OMOLEYE

....... Justice, Court of Appeal

ABDU ABOKI

....... Justice, Court of Appeal

 

 

 

 Between

ALHAJI SAIDU YAYA KASIMU

Appellants

 

 

 

 And

    

NIGERIAN NATIONAL PETROLEUM CORPORATION

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "WAIVER": Meaning of the word "Waiver"

 

 

"A waiver has been defined as an abandonment of a right and showing by word or conduct not to insist on the right. See African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 416.It has been held again and again that a party cannot resile from an irregular procedure to which he had acquiesced to. See Ansa v. Cross Lines Ltd (2005) 14 NWLR (Pt. 946) 645 at 668" Per PETER-ODILI, J.C.A. (P. 17, Paras. C-D) - read in context

 

 

 

 

2

APPEAL - FINDING OF FACT: Whether the court of appeal is essentially a court of review

 

 

"A Court of Appeal is not per se a fact finding court. It is essentially a court of review. Therefore, perception of evidence is the primary and exclusive function of a trial court and an appellate court must not veer into that realm. However, when the issue is that of evaluation of evidence and error is manifest in the exercise so conducted by the trial court, then an appellate court is on the same level with a trial court. The Court of Appeal can correct such error Sode v. L.S.C.P.C. (2000) 7 NWLR (Pt. 663) 152. It is not the duty of a court to look for or provide evidence for any of the parties before it; its duty is mainly that of an umpire holding evenly the scale of justice between the parties. It is consequently erroneous for an appellate court to make use of materials not given in evidence to come to its decision. Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128 at 148." Per PETER-ODILI, J.C.A.(Pp. 14-15, Paras. F-C) - read in context

 

 

 

 

3

APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Whether the Court of Appeal can interfere with award of damages of a trial court

 

 

"The Court of Appeal will not interfere with an award of damages by a trial court merely because it is inclined to award a different amount. An appellate court would only intervene where there is clearly a very high or a very low estimate and same is perverse or appears to have been arrived at on wrong principle Mutual Aids Society Ltd v. Akerele (1966) NMLR 257; Allied bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374." Per PETER-ODILI, J.C.A. (P. 14, Paras. D-F) - read in context

 

 

 

 

4

APPEAL - POWER AND DUTY OF COURT OF APPEAL: Limit as to the powers and duties of court of appeal

 

 

"The Court of Appeal would be mistaken as to the limits of its power and duty when it embarks on a fresh appraisal of the evidence. This is so because it has not the advantage of seeing and listening to the witnesses but relied only on the cold sullen print of the records before it. Akpan v. Utin (1996) 6 SCNJ 244 at 267 - 268. Agbaje JSC in Attorney-General Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1 at 23 stated: "By virtue of Section 16 of the Court of Appeal Act 1976, there is jurisdiction in the Court of Appeal to allow new points not taken at the trial court to be taken in that court. By virtue of section 16 of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria 1990 and order 3 rule 23 of the Court of Appeal Rules, the Court of Appeal is vested with powers to make all such order as the trial court could have made and generally to called for the intervention or interference by this court. I refer to the following cases: Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128 at 148; Akpan v. Utin (1996) 76 SCNJ 244 at 267 - 268; Ovenseri v. Osagiede (1998) 11 NWLR (Pt. 572) 1 at 12; Ekpenyong v. Nyong (1975) NSCC 28; Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) 467; Oladunjoye v. Akinterinwa (2000) 6 NWLR (Pt. 659) 92." Per PETER-ODILI, J.C.A. (Pp. 15-16, Paras. C-C) -read in context

 

 

 

 

 

 

 

 

MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): The appellant herein was the plaintiff at the Federal High Court, Abuja where he sued the Respondent by way of originating summons dated and filed on 22nd May, 2002 for:

(1) A DECLARATION that the plaintiff was on leave of absence from his employment with the defendant between April 1991 and August 2001 when he was appointed as the managing director of the Nigerian Industrial Development Bank limited by the Federal Government of Nigeria.

(2) A DECLARATION that after the completion or cessation of his leave of absence and assignment as the Managing Director of the Nigerian Industrial Development Bank Limited in 1991, the plaintiffs employment with the defendant continued and the plaintiff was entitled to return thereto.

(3) DECLARATION that the plaintiff was entitled to retire from his employment with the defendant and that his notice of retirement dated 18th September 2001 was valid to effect his retirement from the defendant

(4) A DECLARATION that upon his retirement from the defendant corporation, the plaintiff is entitled to payment of retirement benefits and entitlements including pension from the defendant for the period of his employment from 1988 to 2001.

(5) AN ORDER compelling the defendant to pay the plaintiff all his retirement benefits and entitlements as well as pension based on the period of his employment from 1988 to 2001. 

The originating summons was supported by an affidavit of 19 paragraphs sworn to by the appellant himself and exhibits attached thereto. Earlier before filing its counter-affidavit to the suit, the respondent, by a motion dated 200 June, 2003 applied for an order striking out the suit for want of jurisdiction for failure of the appellant to adopt proper procedure for Initiating the action and failing also to fulfill some conditions precedent to filing he action. The application was dismissed by the trial court presided over by B.F.M. Nyako J. in a ruling delivered on 2nd December, 2003. Dissatisfied the plaintiff/ appellant has appealed to this court on a Notice of Appeal of three grounds of appeal.

FACTS:-

The case of the appellant was as follows:-

(a) That on 1st of July 1908, he was appointed a staff of the Respondent and was made the Managing Director of Hyson Nigeria limited, a subsidiary of the respondent. On 20th May 1991, he was appointed on a national assignment by the Federal Government of Nigeria to the post of Managing Director of the Nigerian Industrial Development Bank (hereafter called N.I.D.B.). The appellant duly communicated this to the Honorable Minister of Petroleum Resources who was also the Chairman of the board of the respondent. The appellant applied to the Minister for leave of absence to enable him take up the national assignment. The Minister duly approved the leave. See Exhibit SYK2. 

(b) That soon after his resumption of duty as the Managing Director of N.I.D.B. the issues arose between the appellant and the respondent as to the tenure of the leave of absence. The issues was however resolved that the sojourn of the appellant as the Managing Director of N.I.D.B was temporary and that during that period he remained a staff of the respondent while on the national Assignment.  

(c) That by a letter dated 22nd August, 2001, the appellant notified the respondent of his intention to return to its service upon completion of the leave of absence. The respondent did not reply the letter. See Exhibit ''SYK8".

(d) That by another letter dated 18th September 2001, he gave notice of his retirement from the respondent See "SYK 9".

(e) That by a letter dated 28th November 2001, the respondent informed the appellant that he did not qualify to and could not retire from its service. In other words, the respondent denied liability for the terminal entitlements of the appellant. 

The case of the Respondent is that Appellant spent only three years in her employment as being leave period granted him or at worst four years, the period covered in his letter of appointment after which Appellant abandoned his place of work having failed to apply for extension of leave or return to the Respondent. That such years spent in Respondent's employment were not sufficient enough by law for pension from her. But that she was ready to pay her three years contribution to Appellant's retirement benefits, while Nigeria Industrial development Bank (NIDB) where, Appellant worked for almost ten years, pay the rest of his retirement benefits pro-rata. 

It was the arguments of the Defendant now Respondent that the trial court judgment be upheld.

The Appellant on the 19/2/07 filed his Brief of Argument where in he raised two issues for determination which are:-

1. Whether the trial court was right, after holding that the appellant was entitled to retire from the respondent, to order that the appellant's retirement benefit including pension should be paid pro-rata by the respondent and N.I.D.B. which was not a party to the suit and which relief was not sought by the appellant.

2. Whether, having found for the appellant based on the evidence before it, it was right for the court not to grant the appellant the reliefs he sought. 

The respondent filed their Brief on 4/4/07 and formulated two questions which are:-

1. Whether considering the facts, arguments and documentary evidence in support of this case, the court was wrong in law and equity to decide that Respondent pay only for the period Appellant physically worked for her, considering that Nigerian Industrial Development Bank (NIDB) was not her subsidiary.

2. Whether the decision of the trial court is vague and incomprehensible.

It seems to me that the issues couched by the counsel can be collapsed into a single issue to read: 

Whether considering the facts arguments and documentary evidence in support of this case, the court was wrong in law and equity to decide that Respondent pay only for the period Appellant physically worked for her considering that Nigerian Industrial Development Bank (NIDB) was not her subsidiary or even party to the case.

Learned counsel for the Appellant submitted that the trial court was patently wrong in making the above-stated orders, in the following respect:-

(a) The relief was not sought by the appellant, and the respondent did not have a counter-claim 

(b) The NIDS against which an order was made was not a party to the suit;

(c) The order did not follow logically from the finding and conclusion of the court.

Learned counsel for the Appellant said it is the law that a court of law ought not to award to a plaintiff a substantial relief he has not specifically claimed and may in fact not desire. The law is that the court is not a Father Christmas and therefore cannot grant a relief not sought or more than that sought by any of the parties before it. He cited:

(a) Ekpenyong v. Nyong (1975) 2 SC 71 at 81 - 82.

(b) Ansa v. Cross Lines Ltd (2005) 14 NWLR (Pt. 94) 645 at 661.

(c) Bogb;m v. Diwhre (2005) 16 NWLR (Pt 951) 274 at 299

(d) Gbagarigha v. George (2005) 17 NWLR (Pt. 953) 163 at 189

(e) Ajao v. Ademola (2005) 3 NWLR (Pt. 913) 636 at 657

(f) A.T.A. Poly v. Maina (2005) 10 NWLR (Pt. 934) 487 at 512.

Learned counsel for the Appellant recast the reliefs sought by the appellant and the said finding in favour of the appellant, the trial court made the following orders, to wit:- 

(a) "The defendant is equally liable together with the N.LD.B. to pay to the plaintiff Pension and Gratuity that may be entitled to pro-rata":

(b) "And Order that the relevant agencies should jointly pay the Plaintiff his retirement benefits and entitlements as well as pension based on his period of employment from 1988- 2001 pro rata":

Mr. Olarenwaju of counsel submitted that the trial court erred in law in the final orders it made, and the error led to a miscarriage of justice against the appellant. That the court should set aside the orders and in their place enter judgment granting the appellant's claims.

Learned counsel further contended for the Appellant that the trial court made an order against NIDB that was not a party in the suit before it. That the respondent had by a motion on notice dated 2nd June 2003, applied to the court to strike out the suit for want of jurisdiction based on what it alleged was the failure of the appellant in adopting the proper procedure and among the three grounds of the objection was "that the proper parties are not brought before this court". That the party the respondent wanted to be joined was N.I.D.B. He said the motion was strenuously argued by both parties and on 2nd December, 2003 in a considered ruling, the trial court dismissed the objection and held that NIDB was not a proper or necessary party to the suit and the respondent did not appeal against that ruling. He further stated that the court cannot make an order against a person who is not a party to the suit before it and where that is done, any order so made affecting that party amounts to a nullity. He referred to Attorney-General Lagos v. Attorney- General Federation (2004) 18 NWLR (Pt. 904) 1 A 94 - 95 D. E &. 114 A - G; Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) 139 at 165 G.

Learned counsel for the Appellant said the trial court had agreed totally with the appellant's case and rightly found that the appellant was at all times material remained an employee of the respondent and therefore entitled to retire from and to retirement benefits and pension from the respondent. That the only conclusion the trial court ought to have reached was to grant all the reliefs claimed by the appellant. That the order of the trial court not logically flowing from its findings and so should be overturned. He cited Abu v. Kuyabana (2002) 4 NWLR (pt. 758) 599 at 610 B - E; Attorney-General Osun State v. Attorney-General Federation (2002) 18 NWLR (Pt. 798) 232.

Learned counsel for the Appellant said the orders of the trial court are vague, ambiguous and patently unenforceable. He cited Attorney-General Osun State v. Attorney-General Federation (2002) 18 NWLR (Pt. 798) 232. That the respondent was clearly recognisable as the only person sued and the logical thing for the court to have done after agreeing with the appellant's case was to grant all his reliefs as claimed. He referred to Olatunji v. Owena (2001) 15 NWLR (Pt. 790) 272 at 286- 287. 

That the Court of Appeal under Section 16 Court of Appeal Act has authority and the power to substitute the proper order which the trial court ought to have made. He cited Kona LG v. De Beacon (2002) 4 NWLR (Pt. 756) 128 at 142 -134; Irolo Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) 139 at 165 G.

In response learned counsel for the Respondent stated that a trial court which had the privilege of receiving and analyzing the evidence of parties was required to act judicially and judiciously and this duty the trial court in this instance executed properly and in good faith. He cited Sode v. L.S.D.P.C. (2000) 7 NWLR (Pt. 663) 152 at 150.

Mr. Agbonifo for the Respondent said that the Appellant was granted only three (3) years leave and at the end of that Appellant failed to ask for or obtain further leave of absence and did not give reason for that, but only abandoned his place of assignment and chose to remain with N.I.D.B. for ten (10) years. That it is also true that N.I.D.B. had not engaged the services of Appellant to plead its case. That it is the duty of N.I.D.B. to complain of inability to pay for what ever reason and not Appellant. He cited Effiom v. Ironbar (2000) 3 NWLR (Pt. 650) 545 at 549. 

Learned counsel for the Respondent further said that it is not correct as contended by the Appellant that the trial court granted a relief not sought by either party. He referred to Exhibit G, a letter of the Respondent dated 29th June wherein Respondent stated that the N.N.P.C. will be responsible only for its contribution to Appellant's pension based on his 3 years service in N.N.P.C and that the money will be paid to N.I.D.B. which should in turn pay Appellant's pension.

Mr. Agbonifo stated on that the reasons for the decision cannot be more important as to override a well founded decision. He referred to Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865) 87 at 98; Ekong v. Udo (2002) 16 NWLR (Pt. 792) 1 at 11.

He stated further that the trial court considering that it will not promote public policy and enhance private industry to allow a person or party to take absolute responsibility where it should be shared decided rightly that Respondent share responsibility pro-rata, the service rendered to her. That assuming but without conceding that such contribution is not sufficient from Respondent, it is not abnormal, provided the justice of the case so demands. He cited Owena Bank PLC v. Olatunji (2002) 13 NWLR (Pt. 781) 259 at 269.

Learned counsel contended that whenever the language of a document, decision or any other written material is clear, it should be so interpreted and not otherwise. He relied on Orient bank Nig. Plc. v. Bilante Int'l Ltd (1997) 8 NWLR (Pt. 515) 37; Gurah Securities and Finance Ltd v. T.I.C. Ltd (1999) 2 NWLR (Pt. 589) 29.

That the Argument of the Appellant that the order is vague does not hold water as the order had clarity and so the Court of Appeal should discountenance the argument of the Appellant in that respect and decide in favour of the Respondent.

That is in summary the facts available in this appeal including the submissions of counsel on either side. In brief while the Appellant through counsel is contending that the learned trial court in making its orders after the findings had granted what the parties had not asked for which is not permissible by law. The learned counsel for the Respondent had a contrary view. In tackling that controversy certain points have to be made some trite while others may not be so visible.

The Court of Appeal will not interfere with an award of damages by a trial court merely because it is inclined to award a different amount. An appellate court would only intervene where there is clearly a very high or a very low estimate and same is perverse or appears to have been arrived at on wrong principle Mutual Aids Society Ltd v. Akerele (1966) NMLR 257; Allied bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374.  

A Court of Appeal is not per se a fact finding court. It is essentially a court of review. Therefore, perception of evidence is the primary and exclusive function of a trial court and an appellate court must not veer into that realm. However, when the issue is that of evaluation of evidence and error is manifest in the exercise so conducted by the trial court, then an appellate court is on the same level with a trial court. The Court of Appeal can correct such error Sode v. L.S.C.P.C. (2000) 7 NWLR (Pt. 663) 152. It is not the duty of a court to look for or provide evidence for any of the parties before it; its duty is mainly that of an umpire holding evenly the scale of justice between the parties. It is consequently erroneous for an appellate court to make use of materials not given in evidence to come to its decision. Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128 at 148.

The Court of Appeal would be mistaken as to the limits of its power and duty when it embarks on a fresh appraisal of the evidence. This is so because it has not the advantage of seeing and listening to the witnesses but relied only on the cold sullen print of the records before it. Akpan v. Utin (1996) 6 SCNJ 244 at 267 - 268.

Agbaje JSC in Attorney-General Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1 at 23 stated:

"By virtue of Section 16 of the Court of Appeal Act 1976, there is jurisdiction in the Court of Appeal to allow new points not taken at the trial court to be taken in that court.

By virtue of section 16 of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria 1990 and order 3 rule 23 of the Court of Appeal Rules, the Court of Appeal is vested with powers to make all such order as the trial court could have made and generally to called for the intervention or interference by this court. I refer to the following cases:

Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128 at 148; 

Akpan v. Utin (1996) 76 SCNJ 244 at 267 - 268; 

Ovenseri v. Osagiede (1998) 11 NWLR (Pt. 572) 1 at 12;

Ekpenyong v. Nyong (1975) NSCC 28;

Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) 467; 

Oladunjoye v. Akinterinwa (2000) 6 NWLR (Pt. 659) 92.

It cannot be lost sight of that it is an act in futility and therefore a nullity to make an order affecting a person who is not a party before that court as was done in this case when in making the orders in the course of the judgment the learned trial Judge made the order of payment of part of the benefit by NIDB, a stranger to the proceeding. I refer to the case of Attorney-General Lagos State v. Attorney-General Federation (2004) 18 NWLR (Pt. 904) 1.

Also the learned trial Judge had by making the order concerning the pro rata benefits from the Defendant/Respondent and the NIDB introduced an issue which in this instance she erroneously did since she did not get a hearing from the parties on it. See Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 138) 58 at 79.

It needs no saying that a Judge as an impartial arbiter must leave the parties to conduct their contest within the ambit framed by them. See Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506 at 529. 

The learned counsel for the Respondent had raised the argument that they had at some point in the court below tried to have the Nigerian Industrial Bank (NIDB) brought in as a defendant but the trial court dismissed the application. Curiously the Respondent did nothing by way of appeal and so that took the garb of a waiver of contesting whether or not the NIDB should have been a party to this contest. That being the case it is too late to have NIDB brought in now by whatever colouration. A waiver has been defined as an abandonment of a right and showing by word or conduct not to insist on the right. See African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 416. 

It has been held again and again that a party cannot resile from an irregular procedure to which he had acquiesced to. See Ansa v. Cross Lines Ltd (2005) 14 NWLR (Pt. 946) 645 at 668.

The above principle comes into play in the argument by the Respondent that the Appellant ought to have applied for a further enlargement of the period of the leave of absence from the Respondent. The learned trial Judge was in my view right to have made the finding that at all time material including the years the Appellant without re - applying for extension of time to remain with NIDB in the course of the secondment remained a staff of the Respondent and there was no break in the employment. All that finding was buttressed by evidence including the necessary exhibits. It was therefore surprising that with all that as back ground the learned trial Judge went into what can only be likened to an essay in contradiction when she held:-

"Consequently, the Plaintiff suspended his service with the Defendant when he went on leave of absence. Secondly, upon the cessation of his leave of absence/ the Plaintiff is entitled to revert or to return to the Defendant. That the Plaintiff is entitled to retire from the Defendant if he so wishes and his notice of retirement is valid. The Defendant is equally liable together with the N.I.D.S. to pay to the Plaintiff Pension and Gratuity that he may be entitled to pro rata".:

Having stated the above and for the reasons thereby I answer the question in the negative, this appeal is allowed in a manner of speaking in part since the main findings are in order but the final orders are not. Therefore I allow the appeal and order that the Appellant being entitled to return to the Respondent after the cessation of his assignment, it is declared that the Appellant is entitled to retire from his employment from the Defendant. That Appellant is entitled to be paid his retirement benefits including Pension from the N.N.P.C. from 1988 - 2001. I hereby set aside the earlier orders of the court below, and make the following orders as the lower court ought to have made:-

(1) A DECLARTION that the plaintiff was on leave of absence from his employment with the defendant between April 1991 and August 2001 when he was appointed as the managing director of the Nigeria Industrial Development Bank Limited by the Federal Government of Nigeria. 

(2) A DECLARATION that after the completion or cessation of his leave of absence and assignment as the Managing Director of the Nigeria Industrial Development Bank Limited in 1991, the Plaintiffs employment with the defendant continued and the plaintiff was entitled to return thereto. 

(3) A DECLARATION that the Plaintiff was entitled to retire from his employment with the defendant and that his notice of retirement dated 18th September 2001 was valid to effect his retirement from the defendant.    

(4) AN ORDER compelling the defendant to pay the plaintiff all his retirement benefits and entitlements as well as pension based on the period of his employment from 1988 to 2001.

I order costs of N20,000.00 to the Appellant.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I read before now a copy of the leading judgment rendered by my learned brother Mary U. Peter-Odili JCA. I agree with him that this appeal has merit and it is hereby allowed. I equally abide by all the consequential orders made in the leading judgment. 

ABDU ABOKI J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Mary U. Peter-Odili, J.C.A. I agree entirety with his reasoning and conclusion in setting aside the decision of the lower Court. I abide by the consequential orders and the award of costs made by my learned brother.

     Appearances       

Ayo Olarenwaju

For the Appelants

       

Tony Agbonifo

For the Respondents

 

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