AKOSILE v. OANDO (2020)

AKOSILE v. OANDO

(2020)LCN/14628(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/L/401/2016

RATIO

PLEADINGS: CONCURRENT JURISDICTION OF THE HIGH COURT AND COURT OF APPEAL TO EVALUATE DOCUMENTARY EVIDENCE.

Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the legion of documents in the appeal. Per OBANDE FESTUS OGBUINYA, J.C.A

RATIO

PLEADINGS: SUO MOTU

The appellant bemoaned and christened it as raising issue suo motu which violated his right to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended.
Indisputably, the law, seriously, frowns on a Court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such an untoward judicial exercise will drag the Court into the arena of conflict as well as impinge on the inviolable rights of parties to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended, see INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316 Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171 A-G., Fed. v. A-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534. However, it is not an inelastic rule of law. It admits of certain exceptions. The need for address by parties becomes unnecessary when: “(a) the issue relates to the Courts own jurisdiction; (b) both parties are/were not aware or ignore a statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident,” see Omokuwajo v. FRN(2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, JSC; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C.(2010) 14 NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt. 1670) 51; Garba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1. The spinal cord of the appeal, that the warring parties joined issue on the appellant’s entitlement to his terminal benefit. In the view of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636) 357. Indeed, the heartbeat of the appellant’s case is the respondent’s failure to pay his terminal benefits. Put the other way round, the parties proffered evidence and addressed the lower Court on the point. In this wise, the law mandates the lower Court to make finding(s) thereon, see Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 404; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Ikpeazu v Otti (2016) 8 NWLR (Pt. 1513) 38. The lower Court’s finding orbits around the proof or disproof of the appellant’s entitlement of his terminal benefit which was the casus belli in the case. Thus, the lower Court did not, proprio vigore, raise the issue of the quantum of the terminal benefit. It merely, and rightly in my view, analysed the evidence offered by the contending parties on the terminal benefits. That cannot, under any guise or imagination, snowball into raising an issue ex proprio motu. The propriety or otherwise of the finding is a different consideration. It follows, that the allegation of raising issue suo motu is not only uncharitable but unsustainable. Per OBANDE FESTUS OGBUINYA, J.C.A

RATIO

PLEADINGS MISCARRIAGE OF JUSTICE.

Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W.S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.
It stems from the acquittal/discharge of the finding from the lean perimeter of suo motu, that the appellant’s accusation of affliction of miscarriage of justice is lame. The lower Court weaved its decision on the parol and documentary evidence available before it. Put differently, the finding is not rooted on alien evidence. In sum, the reasonable probability to earn a favourable result in the appellant’s favour was, with due reverence, a mirage. The decision is not mired in the intractable swamp of miscarriage of justice nor smell of any miscarriage of justice. Per OBANDE FESTUS OGBUINYA, J.C.A

RATIO

PLEADINGS ADMISSIBILITY OF EVIDENCE.

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 41.

The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it.
It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). Per OBANDE FESTUS OGBUINYA, J.C.A

RATIO

PLEADINGS: WHEN A VERDICT OF COURT IS PERVERSE.

A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467. Per OBANDE FESTUS OGBUINYA, J.C.A

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

BABATUNDE ABIODUN AKOSILE APPELANT(S)

And

OANDO NIGERIA PLC RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the National Industrial Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”, coram judice: J.D. Peters, J., in Suit No. NICN/LA/77/2013, delivered on 3rd December, 2015. Before the lower Court, the appellant and the respondent were the claimant and the defendant respectively.

The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. In 1991, the appellant was employed by the defunct AGIP (Nigeria) Limited which ultimately metamorphosed into the respondent that welcomed him into its employ. The respondent is an incorporated company that deals in sales of petroleum products at various outlets across the country.

The appellant, during his employment with the respondent, was the sales manager of its service station at Itori, Ogun State, under the dealership of one Akeem Odunlami. The said Akeem Odunlami was indebted to the respondent under the Trade Account Receivables (TAR). The respondent asked the appellant to explain his involvement/participation in

the indebtedness. The appellant offered his written explanation. The respondent set up a Disciplinary Committee which invited the appellant for his defence. Later on, the respondent terminated his employment, on 25th August, 2004, and stated that his terminal benefits would be paid to him on completion of police investigation and recovery of the outstanding debt from Akeem Odunlami. The appellant alleged that the police exonerated him of any criminal acts against the respondent’s property and Akeem Odunlami paid the debt. The respondent refused to pay the appellant his terminal benefits despite the exoneration and discharge of the debt. Sequel to that, the appellant beseeched the lower Court, via a complaint filed on 19th February, 2013, and tabled against the respondent the following reliefs:
i. Sum of N13,700,000.00 (Thirteen Million, Seven Hundred Thousand Naira) being the terminal benefit due to the Claimant which the Defendant has refused neglected to pay despite persistent and repeated demands.
ii. Interest at the rate of 25% from the 25th day of August, 2004 until judgment and thereafter until final liquidation of the judgment debt.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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iii. The sum of N5,000,000.00 (Five Million Naira) in cost and legal fees for prosecuting this suit.

In a swift reaction, the respondent joined issue with the appellant and denied liability. It filed a statement of defence wherein it asserted that Akeem Odunlami had not discharges his debt to it.

Following the discordant claims, the lower Court had a full-scale determination of the case. In proof of the case, the appellant testified in person, as CW1, and tendered sea of documentary evidence: Exhibits C1-C12. In disproof of the case, the respondent fielded one witness, DW1, who tendered two documentary evidence: Exhibits D1 and D2. At the closure of evidence, the parties, through their counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 3rd December, 2015, found at pages 400-407 of the record, the lower Court dismissed the appellant’s claim.

The appellant was dissatisfied with the decision. Hence, on 6th January, 2016, the appellant lodged a 7-ground notice of appeal, copied at pages 408-414 of the record, wherein he prayed the Court as follows:
i. The Appellant prays that the

Court of Appeal allows this appeal and set aside, the judgment of the National Industrial Court presided over by the Honourable Justice J.D Peters, and delivered on the 3rd day of December, 2015, and grants the Appellants claims as per its Statement of facts (Statement of Claim) before the lower Court.
OR Alternatively; .
That the Court makes an order for a retrial of the entire case before another judge.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in the line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 15th July, 2020.

During its hearing, learned appellant’s counsel K.A. Oniyide, Esq., adopted the appellant’s brief of argument, filed on 31st May, 2016, and the appellant’s reply brief, filed on 16th August, 2016, both deemed properly filed on 15th July, 2020, as his representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, O.M. Bolaji Esq., adopted the respondent’s brief of argument, filed on 30th June, 2016, but deemed properly filed on

15th July, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether in view of the extant provisions of Section 36 of the Constitution of the Federal Republic 1999 (As amended) Sections 19, 20 & 123 of the Evidence Act, 2011 (As amended) the learned trial judge was right to have delved into extraneous issues not raised by the parties in their respective pleadings suo motu without affording the Appellant the right to be heard on the point?
2. Whether the learned trial judge properly directed himself in ruling that admitted facts be proved in spite of the extant provisions of Sections 19, 20 & 123 of the Evidence Act, 2011?
3. Whether in view of ’the state of the parties’ pleadings filed, exhibits, admitted facts and the undisputed claim the learned trial judge did not reach a perverse judgment in holding that the claim was not established?

Admirably, learned respondent’s counsel adopted the three issues crafted by the learned appellant’s counsel.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that the issue before the lower Court, from their pleadings, was whether the conditions precedent for the payment of the appellant’s terminal benefits had been fulfilled. He noted that the parties and the Court are bound by pleadings. He relied on Olowosago v. Adebanjo (1988) LPELR-2601 (SC)/(1988) NWLR (Pt. 88) 275; UBN Plc v. Ayodare & Sons (Nig.) Ltd. (2007) LPELR – 3391 (SC) /2007) 13 NWLR (Pt. 1052) 567; Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668. He added that a Court would not grant an unclaimed relief. He cited Atoyebi v. Odudu (1990) NWLR (Pt. 157) 384. He claimed that how much the appellant was entitled to as terminal benefits was not an issue before the lower Court, but it wrongly raised it suo motu. He cited Odedo v. PDP (2015) 5-6 SC (Pt. III) 149; Olaolu v. FRN (2015) 5 SC (Pt. II) 102; Mabamije v. Otto (2016) 1 MJSC (Pt. III). He stated that a Court should evaluate evidence before it and not to investigate. He referred to APGA v. Al-Makura (2016) 1 MJSC 69. He persisted that the lower Court was wrong to raise the issue and decided it

without hearing from the parties. He cited Finnih v. Imade (1992) LPELR-1277 (SC) /(1992) 1 NWLR (Pt. 219) 511; Kuti v. Balogun (1978) 1 WRN 353; Enekwe v. IMB (Nig) Ltd. (2006) NWLR (Pt. 1013) 46; Obawole v. Williams (1996) 10 NWLR (Pt. 477). He described the result as a futility. He relied on Abdullahi v. Executive Governor, Kano State (2014) LPELR-23079 (CA). He reasoned that the act of the lower Court denied the appellant his right to fair hearing and caused him a miscarriage of justice. He cited Saleh v. Monguno (2003) NWLR (Pt. 801) 221; Alamieyeseigha v. Igoniwari (2007) All FWLR (Pt. 388) 1057. He repeated the duty of a trial Court-to evaluate evidence. He referred to Sanusi v. Makinde (1994) 5 NWLR (Pt. 343) 214; Ibanga v. Usanga (1982) 5 SC 103. He concluded that admitted fact needed no proof. He cited Section 19 of the Evidence Act, 2011;Ogunmola v. Saka (2011) LPELR-8946 (CA).

On behalf of the respondent, learned counsel contended that the right to fair hearing is subject to certain exceptions. He conceded that the duty of a trial Court is to determine the claim of parties based on pleadings and evidence. He relied on Jolayemi v. Alaoye

(sic-no year) 9 MJSC, vol. 9, 93. He observed that the lower Court’s finding that the appellant failed to adduce cogent and admissible evidence in support of his case was not raising issue suo motu. He maintained that the lower Court had the duty to evaluate the evidence. He referred to Adeleke v. Iyanda (2001) 9 MJSC 171. He opined that such evaluation could not be equated with denial of fair hearing under Section 36 (1) of the Constitution, as amended. He concluded that only substantial error could led to miscarriage of justice for an appellate Court to interfere. He cited Egwunewu v. Ejeagwu (2006) All FWLR (Pt. 324) 1839.

On points of law, learned appellant’s counsel stated the ingredients of fair hearing as noted in Amadi v. INEC (2012) LPELR-7831 (SC); Okafor v. A-G, Anambra State (1991) 6 NWLR (Pt. 200) 659; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419.

Issue two
Learned appellant’s counsel submitted that the Courts have moved away from technical justice to substantial justice. He relied on Monye v. Abdullahi (2012) LPELR-20103) (CA); Omoju v FRN (2008) 7 NWLR (Pt. 1085) 38. He posited that admitted facts needed no proof.

He cited Olale v. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62; Andony v. Ayi II (2004) All FWLR (Pt. 227) 444; Agbanelo v. UBN Ltd. (2000) 7 NWLR (Pt. 666) 534; Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444. He stated that Exhibit C12 showed the sum for the terminal benefits. He postulated that the lower Court found that it was entitled to the terminal benefits but refused to grant the claim. He described the judgment as perverse.

Issue three
Learned appellant’s counsel stated the law with regard to evaluation of evidence as noted in Odofin v. Mogaji (1978) 4 SC 65 (Reprint); Woluchem v. Gudi (1981) 5 SC 178 (Reprint). He asserted that the evidence of DW1 did not challenge or rebut that of the appellant, CW1, on the terminal benefits. He took the view that the lower Court’s duty was to decide the credibility of the documents. He claimed that the respondent never decided the terminal benefits in Exhibit C12. He observed that no burden of proof would exist where there was no issue. He cited Olaiya v. Olaiya (2002) 5 SC (Pt. 1) 122. He insisted that the lower Court was wrong to hold that the appellant did not establish the burden of proof when none was on him.

For the respondent, learned counsel contended that the burden of proof rests on the person who asserts on the balance of probabilities in civil actions. He relied on ANPP v. PDP (2006) 17 NWLR (Pt. 1009) 467. He observed that the evidence of the appellant should preponderate in favour of his claims. He cited Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt. 929) 117; Jack v. Whyte (2001) 3 SC 121; Buhari v. Obasanjo (sic-no citation). He pointed out that the appellant’s evidence fell short of the standard of proof to prove his claims. He reasoned that the lower Court was concerned with the justice of the case on a global view not on an issue that did not affect the materiality of the entire judgment. He referred to Ezeja v State (sic-no year) All FWLR (Pt. 309) 1535. He argued, in the alternative, that even if the lower Court reached a wrong conclusion, the appellant must show that the error was substantial and material to affect the outcome of the judgment which caused him miscarriage of justice. He cited Egwunewu v. Ejeagwu (2006) All FWLR (Pt. 324) 1839; Anyanwu v. Mbara (1992) 5

NWLR (Pt. 242) 386.

Resolution of the issues
It is germane to place on record, upfront, that a flurry of documentary evidence were furnished before the lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA

(2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the legion of documents in the appeal. Having been adequately fortified by the above inelastic position of the law, I will proceed to resolve the three nagging issues in this appeal.

For the sake of orderliness, I will attend to the issues in their numerical sequence of presentation by the feuding parties. To this end, I will kick start with the treatment of issue one. The issue, though appears seemingly stubborn, is canalised within a narrow compass. It chastises the lower Court’s finding on the exact figure of terminal benefit due to the appellant. The appellant bemoaned and christened it as raising issue suo motu which violated his right to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended.
Indisputably, the law, seriously, frowns on a Court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such an untoward judicial exercise will drag the Court into the arena of conflict as well as impinge on the inviolable rights of

parties to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended, see INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316 Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171 A-G., Fed. v. A-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534. However, it is not an inelastic rule of law. It admits of certain exceptions. The need for address by parties becomes unnecessary when: “(a) the issue relates to the Courts own jurisdiction; (b) both parties are/were not aware or ignore a statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident,” see Omokuwajo v. FRN(2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, JSC; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C.(2010) 14 NWLR (Pt. 1213) 106;

Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt. 1670) 51; Garba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1.
It is discernible from the record, the spinal cord of the appeal, that the warring parties joined issue on the appellant’s entitlement to his terminal benefit. In the view of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636) 357. Indeed, the heartbeat of the appellant’s case is the respondent’s failure to pay his terminal benefits. Put the other way round, the parties proffered evidence and addressed the lower Court on the point. In this wise, the law mandates the lower Court to make finding(s) thereon, see Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 404; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Ikpeazu v Otti (2016) 8 NWLR (Pt. 1513) 38. The lower Court’s finding orbits around the proof or disproof of the appellant’s entitlement of his terminal benefit which was the casus belli in the case. Thus, the lower Court did not, proprio vigore, raise the issue of the

quantum of the terminal benefit. It merely, and rightly in my view, analysed the evidence offered by the contending parties on the terminal benefits. That cannot, under any guise or imagination, snowball into raising an issue ex proprio motu. The propriety or otherwise of the finding is a different consideration. It follows, that the allegation of raising issue suo motu is not only uncharitable but unsustainable. The decision was not guilty of the pseudo-charge as the lower Court acted in accordance with the tenet and spirit of the law. The net effect is clear. The appellant’s inviolable right to fair hearing did not suffer any erosion in the unbiased judicial hands of the lower Court. Indubitably, the appellant cannot harvest from the sanctuary of the beneficent provision of Section 36 (1) of the Constitution, as amended. The foregoing legal expositions, with due deference, puncture the learned appellant’s counsel’s seemingly elegant contention on the point of raising the issue of exact figure of the terminal benefits suo motu. It is disabled from its birth!

The appellant stigmatised the finding as a miscarriage of justice.

the finding is not rooted on alien evidence. In sum, the reasonable probability to earn a favourable result in the appellant’s favour was, with due reverence, a mirage. The decision is not mired in the intractable swamp of miscarriage of justice nor smell of any miscarriage of justice. On this note, the charge of miscarriage of justice levelled against the decision is not sustainable as to constitute a coup de grace on the respondent’s case. On this score, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.

That takes me to the settlement of issues two and three. A clinical examination of the two issues, clearly, reveals that they are intertwined and share a common mission: to emasculate the lower Court’s evaluation of evidence before it. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their considerations. The kernel of the conjoined issues is plain. They quarrel with the manner lower Court evaluated the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence

because the judgment was against the weight of evidence.

To start with, a castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731;

Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 41.

Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have placed the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

Now, the gravamen of the appellant’s chief grievance, indeed his tramp card on the conjunctive issues, is against the lower Court’s finding that the appellant failed to adduce credible, cogent and admissible evidence in proof of his terminal benefits. The grudge compels me to invite, employ and reap from the co-extensive jurisdiction of this Court and the lower Court vis-a-vis assessment of documentary evidence. Exhibits C1-C3, amply, confirm that the appellant was in the employ of the respondent which traced its paternity to Unipetrol Nigeria Plc and Agip (Nigera) Limited.

Exhibit 8 severed the appellant’s employment relationship with the respondent. In the twilight of Exhibit 8, the respondent decreed: “Your terminal benefits will be withheld pending full recovery of the trade debt and completion of Police investigation and or prosecution”. These were the two conditions precedent. At the bottom/foot of Exhibit 9, the Police Investigation Report, it concluded . “… that Mr. B.A. Akosile [the appellant] has not committed any criminal offence…”. In effect, it exculpated the appellant of any crime thereby satisfying one of the conditions for his entitlement to his terminal benefits. Exhibit II, written on the instruction of Akeem Odunlami, the trade debtor to the respondent, categorically stated: “Kindly be informed that our client is no longer indebted to Oando Plc [the respondent] rather Oando is owing our client”. However, it was a correspondence between the Akeem Odunlami and the appellant. The Exhibit II propelled/stimulated the appellant to write Exhibit 10 to the respondent. In Exhibit 10, the appellant erected his claim of N13,700,000 (Thirteen Million Seven Hundred Thousand Naira)

on Exhibits 9, the Police Investigation Report, and II, Akeem Odunlami’s lawyer’s missive to him. In essence, Exhibit 10 alleged/claimed the fulfillment of the two conditions precedent.

Nevertheless, the respondent tendered Exhibits D1 and D2 to puncture the appellant’s claim. Exhibit D2, clearly, discloses that the sum of N11,425,000 (Eleven Million Three Hundred and Sixteen Thousand, Five Hundred and One Naira), which Exhibit II claims being owed to the Akeem Odunlami by the respondent, was settled in 2008. So, Exhibit D2, which was posterior to Exhibit II, neutralises the efficacy of Exhibit II on the liquidation of the disputed debt. It renders it a half-truth. In the same vein, Exhibit D1 douses the effervescence of Exhibit II, and renders it an impotent documentary evidence.

It admits of no argument, that the conditions stated in Exhibit 8, which disengaged the appellant from the respondent’s employment, are a classic exemplification of conditions precedent. To begin with, in the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”,

see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. From the tenor and phraseology of the conditions, they are conjunctive, not disjunctive, id est, both must be concurrently satisfied as they constitute the passport to fetch the appellant his terminal benefits from the respondent. In other words, the fulfillment of the twin conditions are sine qua non for the appellant to reap his terminal benefits. It can be gleaned from the documentary evidence, anatomised above, that one of the conditions, exculpation of complicity in crime against the respondent, has been met in Exhibit 9, the Police Investigation Report. Nonetheless, as displayed above, Exhibit II is castrated in the face of Exhibits D1 and D2 tendered by the respondent’s DW1. This occasions a corrosive/caustic effect on the appellant’s case. It clearly showcases that the appellant starved the lower Court of essential evidence, which ought to be documentary, signifying

the satisfaction of the second condition precedent; an obvious forerunner to gain his terminal benefits. In the glaring absence of the non-satisfaction of it, the appellant’s claim is merely an echo in ipse dixit. In effect, the pitfall constitutes a serious dent on the appellant’s stride to claim his terminal benefits lying fallow in the vault of the respondent.

My noble Lords, for the sake of completeness, I have consulted the record; the bedrock of every appeal. My port of visit is the residence of the lower Court’s judgment which is in the heat of decimation. It colonises pages 400-407 of the record. I have given a microscopic examination to it. Admirably, it is submissive to easy comprehension. The lower Court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the appellant failed to prove his case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili

(2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227.

The appellant branded the lower Court’s decision as perverse. Since perversion is the cynosure of the point, it is imperative to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678)

427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.

Now, the lower Court’s judgment, sought to be impugned and ostracised, is pasted at pages 400 – 409 of the record; the touchstone of the appeal. I have subjected it to a clinical scrutiny with the finery of a toothcomb. I have, in total allegiance to the desire of the law, situated the judgment, sought to be expelled, with the elements of perverse decision adumbrated above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is marooned in the ocean of perversity. The judgment of the lower Court, which is rebellious to equivocation, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant.

In the light of this juridical survey, conducted in due consultation and obeisance to the law, the lower Court did not fracture the law to make its finding guilty of the allegation/accusation of perfunctory evaluation of evidence preferred against it by the appellant. The lower Court’s finding is in tandem with the law and, ipso facto, unassailable. On this score, I dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on the want of proof of the claim, on the underserved altar of improper evaluation of evidence. In the end, I have no choice than to resolve the conflated issues two and three against the appellant and in favour of the respondent.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any ray of merit and liable to the penalty of dismissal. Consequently, I dismiss the appeal, I affirm the lower Court’s judgment. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment by my learned brother, Obande Festus Ogbuinya, J.C.A.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the lead Judgment prepared by my learned brother OBANDE FESTUS OGBUINYA JCA.
I am in agreement with him that the appeal lacks merit and it deserves a dismissal.
I therefore adopt His Lordship’s reasoning and conclusion in also dismissing the appeal. I affirm the judgment of the lower Court delivered on the 3rd December, 2015 in respect of Suit No: NICN/LA/77/2013.
I abide by the consequential order made in the lead judgment.

Appearances:

K.A. Oniyide, Esq. For Appellant(s)

O.M. Bolaji, Esq. For Respondent(s)