PLATEAU STATE BOARD OF INTERNAL REVENUE v. MARAH
(2020)LCN/15239(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, April 24, 2020
CA/J/503/2018
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
PLATEAU STATE BOARD OF INTERNAL REVENUE (ALSO KNOWN AS PLATEAU STATE INTERNAL REVENUE SERVICE) APPELANT(S)
And
STEPHEN MARAH RESPONDENT(S)
RATIO
WHETHER OR NOT LEAVE OF COURT MUST BE OBTAINED TO APPEAL AGAINST THE DECISION OF THE LOWER COURT
It is settled law that a party desiring to appeal against the decision of the lower Court, the National Industrial Court, which is not on a question of fundamental rights must obtain the leave of this Court to do so – Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24, Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt 1593) 74, First Bank of Nigeria Plc Vs Agbakwuru (2018) LPELR 43639(CA), Babalola Vs Attorney General, Federation (2018) LPELR 43808(CA). PER ABIRU, J.C.A.
WHETHER OR NOT THE ISSUE FOR DETERMINATION IN AN APPEAL MUST BE DIRECTED AT THE FINDINGS BY THE LOWER COURT
Further, it is a settled principle of Appellate Court practice that an issue for determination in an appeal must, along with the ground of appeal from which it is distilled, be directed at the findings made by the lower Court and which formed the ratio decidendi of the Ruling or judgment appealed against – Babalola Vs The State (1989) 4 NWLR (Pt 115) 264, Coker Vs United Bank for Africa Ltd (1997) 2 NWLR (Pt 490) 641, Omisore Vs Aregbesola (2015) 15 NWLR (Pt 1482) 205. The first issue for determination in this appeal is not directed at a finding made in the judgment appealed against, not to talk of it being against the ratio decidendi of the judgment.
It is irrelevant that the issue for determination in question is couched as being one questioning the jurisdiction of the lower Court to entertain the claims of the Respondent. The law is that though an issue of jurisdiction can be raised at anytime, the laid down procedure for raising it must be followed, particularly as in the instant case where it is an issue of procedural jurisdiction, and not one of substantive jurisdiction – Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 246, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Abiola & Sons Bottling Company Nig Ltd Vs First City Merchant Bank Ltd (2013) LPELR SC.88/2005, Adama Vs State (2018) 3 NWLR (Pt 1605) 94. In Adejobi Vs State (2011) 12 NWLR Pt 1261) 347, the Supreme Court made the point thus:
“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other must be followed…”PER ABIRU, J.C.A.
MODE OF ENFORCING JUDGEMENT CONTAINING DECLARATORY ORDERS
Our case law is replete with decisions that say that the recognized mode of enforcing a judgment containing declaratory orders is by commencing a subsequent action when the orders are breached or not complied with – see for example the cases of Okoya Vs Santilli (1990) 2 NWLR (Pt. 131) 172, Ogunlade Vs Adeleye (1992) 8 NWLR (Pt 260) 409, Kwankwaso Vs Governor of Kano State (2006) 14 NWLR (Pt. 1000) 444, Amori Vs Iyanda (2008) 3 NWLR (Pt. 1074) 250, Abeje Vs Alade (2010) LPELR 3561(CA), Wakili Vs Buba (2016) 13 NWLR (Pt. 1529) 323, Idika Vs Offia (2017) LPELR 42280(CA). In Olabomi Vs Oyewinle (2013) 13 NWLR (Pt.1372) 566 at 580, Rhodes-Vivour, J.S.C. made the point in the lead judgment thus:
“A declaratory judgment or order is one that proclaims or declares the existence of a legal relationship, but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed, fresh proceedings are needed for enforcement. Declaratory judgment cannot be enforced by execution as there is nothing to enforce.” PER ABIRU, J.C.A.
WETHER OR NOT CASES ARE DECIDED ON THEIR PECULIAR FACTS AND CIRCUMSTANCES
However, it is settled law that cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt. 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). Thus, the position taken in earlier cases by Courts, even by a Court higher up in the judicial hierarchy, will only bind and govern decisions in a subsequent case where the facts and circumstances are the same or very similar – Abubakar Vs Nasamu (No. 2) (2012) 17 NWLR (Pt. 1330) 523, Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55, Marine Management Association Inc & Anor Vs National Maritime Authority (2012) 3 NWLR (Pt. 1333) 506. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court sitting in Jos delivered in Suit No NICN/Jos/18/2015 by Honorable Justice R. H. Gwandu on the 22nd of March, 2018. The Respondent was the claimant in the lower Court and his claims against the Appellant were for:
i. The sum of N138,930,282.41 being his salaries, allowances and fringe benefits from 23rd October, 2007 to the month of May 2015.
ii. The sum of N1,598,889.80 monthly being his salaries, allowances and fringe benefits from the month of June 2015 until his employment is lawfully and validly severed.
iii. An order compelling the Appellant to pay the Respondent the sums claimed.
iv. A declaration that the Respondent is entitled to an official car.
v. An order compelling the Appellant to provide and/or release to the Respondent an official car.
The case of the Respondent on his complaint before the lower Court was that on the 9th of March, 2000 he was offered a temporary appointment as Director of Taxes by the Appellant and that he formally accepted the appointment and that on his resumption with the Appellant he was directed by the Plateau State Government to assume the duties and responsibilities of Executive Chairman of the Appellant. It was his case that his appointment as Director of Taxes was made permanent by a Plateau State Government letter of offer of pensionable appointment as Director of Taxes on GL 16/9 dated the 2nd of August, 2000 and which he accepted by a letter dated the 5th of January, 2001 and that the Plateau State Government also formalized his appointment as Executive Chairman of the Appellant by a letter dated the 1st of November, 2001.
It was the case of the Respondent that his appointment as Director of Taxes was confirmed by a letter dated 15th of August, 2002 and that he continued to serve as both Executive Chairman and Director of Taxes of the Appellant until the 29th of June, 2004 when he was relieved of his position as Executive Chairman of the Appellant and he was redeployed by the Plateau State Government to the Plateau State Planning Commission as Commissioner IV. It was his case that on the 25th of June, 2007, the Plateau State Government dissolved the State Planning Commission and whereupon he wrote a letter dated 23rd of October, 2007 to the Appellant requesting for posting, being his primary place of employment, and that the Appellant responded by a letter dated 23rd of November, 2007 disclaiming him as a member of its staff.
It was the case of the Respondent that he challenged the letter of the Appellant in Suit No PLD/J51/2008 before the High Court of Plateau State and that in a considered judgment delivered on the 6th of June, 2011, the High Court declared him to be a staff of the Appellant and directed the Appellant to pay him the salaries and allowance pertaining to his position from the 23rd of October, 2007 until his appointment was lawfully determined. It was his case that sequel to the judgment, the Appellant failed to post him and/or pay his salaries, allowances and fringe benefits despite his repeated demands and reminders and consequent on which he commenced the action in the lower Court. The Respondent pleaded the salary, allowances and fringe benefits due to his position from 2007 up till the 30th of May, 2015 when he commenced the action in the lower Court and how much this amounted to monthly from thenceforth and he averred that it was the salary, allowances and fringe benefits of the Executive Chairman of the Appellant which he said was at par with that of a Permanent Secretary in Plateau State.
In response, the Appellant filed an amended statement of defence wherein it, in the main, denied the case of the Respondent and maintained that the Respondent was not a member of its staff and that his appointment as its Executive Chairman and as Commissioner IV in the Plateau State Planning Commission were political appointments and that his alleged appointment as its Director of Taxes was irregular. It was its case that the parameters used by the Respondent to calculate his alleged salaries, allowances and fringe benefits were faulty and that it would raise a preliminary objection to challenge the competence of the action.
The Appellant filed a notice of preliminary objection raising the issue of res judicata – that the action was an abuse of process since the complaints of the Respondent had already been adjudicated upon by the High Court of Plateau State in Suit No PLD/J51/2008 and that the present action was an attempt to re-litigate the complaints.
The lower Court took arguments on the notice of preliminary objection and dismissed same in a Ruling delivered on the 7th of February, 2017. Thereafter the matter proceeded to trial and in the course of which the Respondent testified as the sole witness and tendered several documents in proof of his case and the Appellant too called one witness and tendered documents in proof of its defence. Counsel to the parties filed and adopted their respective final written addresses before the lower Court.
The lower Court, in the judgment delivered, found that the Respondent did not lead sufficient evidence to prove the exact sums claimed as his arrears of salaries, allowances and fringe benefits, but it continued thus:
“… the Court in order to do substantial justice to this matter must by all means look at the circumstances of the case and make an order that will bring considerable justice to all the parties involved. It is not in contention that the Claimant is a staff of the Respondent and that by the judgment of the Plateau State High Court, he is entitled to be reinstated to the rank of Director of Taxes and paid salaries for same from the month of October, 2007 until his employment is validly and lawfully terminated in line with the extant laws. Also it is trite that employees have a right to be promoted when they are in employment. The Claimant is not only to be reinstated forthwith, but …, if the incidence of retirement has not caught up with him, then from the date of this judgment he is to be reinstated to the position and rank to which he would have reached if he was initially reinstated as per the judgment of the High Court in 2007 (sic), his promotions from grade level of Director of Taxes began to run from the date the judgment of the High Court was made, and with it all the attendant salaries and allowances. In plain words, the Claimant is to be reinstated on the grade level to which he would have attained had the Respondent complied with the judgment of the High Court in 2007 (sic) and paid the attendant salaries applicable for each year and status he would have attained until his employment is terminated validly, and if he has reached the age of retirement, he should be paid his terminal benefits based on the rank he would have achieved at retirement …”
In other words, the lower Court refused the claims as contained on the complaint of the Respondent because it found that he did not prove the specific figures claimed, but it directed the Appellant to calculate the Respondent’s emoluments as Director of Taxes from the 23rd of October, 2007, bearing in mind the promotions he would have attained since then and pay him same from the 23rd of October, 2007 till date, and if he has reached retirement age, pay him all the salaries owed from 23rd of October, 2007 until his retirement age is due and continue to pay him his terminal benefits based on the rank he would have attained if he was reinstated in 2007.
The Appellant was dissatisfied with the judgment and it, sequel to the leave to appeal obtained from this Court, caused its Counsel to file a notice of appeal dated the 22nd of November, 2018 and containing four grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 11th of February, 2019 on the same date. In response, Counsel to the Respondent filed a Respondent’s brief of arguments dated the 22nd of July, 2019 on the 31st of July, 2019 and the brief of arguments was deemed proper by this Court on the 16th of September, 2019. Counsel to the Appellant filed a Reply brief of arguments dated the 30th of September, 2019 on the same date.
The Respondent too was dissatisfied with finding of the lower Court that he failed to lead sufficient credible evidence to prove the specific figures claimed on his complaint and he, sequel to the leave obtained from this Court, caused his Counsel to file a notice of cross appeal dated the 17th of September, 2019 and containing four grounds of appeal against it. In arguing the cross appeal, Counsel to the Respondent filed a Cross Appellant’s brief of arguments dated the 21st of October, 2019 on the same date and in response to which Counsel to the Appellant filed a Cross Respondent’s dated the 14th of November, 2019 on the same date. Counsel to the Respondent filed a Cross Appellant Reply brief of arguments dated the 22nd of January, 2020 on the 23rd of January, 2020 and the Reply brief of arguments was deemed properly filed by this Court on the 3rd of February, 2020.
The Court heard the appeal and the cross appeal together.
At the hearing of the appeals, Counsel to the Respondent withdrew the notice of preliminary objection to the Appellant’s appeal and which was incorporated in the Respondent’s brief of arguments and same was accordingly struck out. Counsel to the parties thereafter relied on and adopted the arguments contained in the respective briefs of arguments as their oral submissions on both appeals. This Court will start its deliberations from the appeal of the Appellant.
The Appeal
Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether or not the trial Court was seised of jurisdiction to have entertained and found that the claim before it was for the implementation of the judgment of the Plateau State High Court in Suit No PLD/J51/2008.
ii. Whether or not, in the circumstances of the case and considering the fact that the Respondent did not prove his case, the trial Court was right to have made consequential orders in favour of the Respondent.
Counsel to the Respondent conceded that there were indeed two issues for determination in the appeal, but he reformulated the issues thus:
i. Whether the lower Court had jurisdiction to entertain the Respondent’s suit.
ii. Whether the learned trial Judge was right in his judgment to have made an order on the Appellant to calculate and pay the Respondent’s emoluments/entitlements as Director of Taxes and all other financial benefits due to him.
The two issues formulated by the Counsel to the parties are basically the same, the only difference being in the manner of their formulation. This Court agrees that the first issue for determination formulated by Counsel to the Respondent and the second issue for determination formulated by Counsel to the Appellant capture the essence of the appeal of the Appellant. The appeal will be resolved on those two issues for determination and the issues will be considered seriatim.
Issue One
Whether the lower Court possessed the requisite jurisdiction to entertain the claims of the Respondent?
In arguing this issue for determination, Counsel to the Appellant posited that the lower Court was wrong to have entertained the claims of the Respondent on the pretext that they were for the purpose of implementing the judgment of the High Court of Plateau earlier entered in favour of the Respondent in Suit No PLD/J51/2008. Counsel thereafter reproduced the orders made in favour of the Respondent by the High Court of Plateau in the said Suit No PLD/J51/2008 and the claims in the present suit and stated that orders in Suit No PLD/J51/2008 were not similar with the claims in the present suit and that this case cannot thus be for the implementation of the orders in Suit No PLD/J51/2008. Counsel referred to the cases of Abenga Vs Benue Judicial Service Commission (2015) 56 NLR (Pt 192) 342 and FCDA Staff Multi-Purpose (Coop) Society Vs Samchi (2018) LPELR 44380(CA) in asserting the principle that parties and the Court are bound by the reliefs sought in an action and stated that lower Court went outside its jurisdiction in the present case to formulate a new case for the parties different from the claims of the Respondent.
Counsel stated further that assuming that the lower Court was right that the present suit was for the implementation of the orders in Suit No PLD/J51/2008, the initiating process for the implementation of the orders was not of the nature contemplated by law and it did not thus set the machinery of law in motion and it compromised the jurisdiction of the lower Court. Counsel stated that the implementation and execution of judgment is regulate by the Sheriffs and Civil Process Act and that by Section 55 thereof, implementation or execution of a judgment shall be by way of a judgment summons and not by way of a writ of summons or complaint filed before the lower Court. Counsel stated that the lower Court therefore lacked jurisdiction to entertain the complaint of the Respondent and that since jurisdiction is a fundamental threshold issue, the entire labor of the lower Court in the case was in vain and its decision a nullity and he referred to the cases of Ogbebor Vs INEC (2018) 6 NWLR (Pt. 1614) 8 and NNPC Vs Sele (2013) 219 LRCN (Pt 1) 1.
It was the further contention of Counsel that, from the pleadings of the Respondent, this present case was as outflow of Suit No PLD/J51/2008 which determined the status of the Respondent as a staff of the Appellant entitled to salaries, allowances and fringe benefits, but without stating their amounts and that the present action was commenced to claim those salaries, allowances and fringe benefits without the Respondent first showing that it initiated enforcement proceedings in respect of the orders in Suit No PLD/J51/2008. Counsel stated that this failure on the part of the Respondent to first initiate enforcement proceedings was fatal to the present action as it rendered same to be an improper use of the judicial process and constituted it as an abuse of court process and he referred to the cases ofAgwasim Vs Ojichie (2004) 18 NSCQR (Pt 1) 359 and Abubakar Vs Bebeji Oil Nig Ltd (2008) 29 NSCQR (Pt. 2) 15 on the meaning of abuse of process. Counsel also referred to the case of Dingyadi Vs INEC (2011) NSCQR 581 in reiterating the principles that an issue of abuse of Court was not a mere irregularity, but one of jurisdiction and that a Court has a duty and the power to prevent abuse of its process and stated that the lower Court failed in the instant case to prevent the abuse of its process by the Respondent. Counsel noted that an issue of jurisdiction can be raised at any stage of the proceedings, even at the appellate Court and he referred to the case ofHamzat Vs Sanni (2015) All FWLR (Pt 776) 436 and he urged the Court to resolve the first issue for determination in favour of the Appellant.
In his response, Counsel to the Respondent traversed through the facts pleaded in the statement of facts presented by the Respondent before the lower Court and referred to the cases of Military Governor, Ondo State Vs Kolawole (2008) All FWLR (Pt. 446) 1805 and Egbe Vs Adefarasin (1987) All NLR 1 in asserting that it is the totality of the averments in a statement of claim that determines both the cause of action and the right of action of a claimant. Counsel stated that it was obvious from the averments in the statement of facts of the Respondent that the orders made by the High Court of Plateau State in Suit No PLD/J51/2008 merely declared that the Respondent was entitled to be paid salaries, allowances and benefits without stating the specific amounts to be paid and that it was the failure of the Appellant to abide by the orders in that suit that compelled the Respondent to commence the present suit to claim the specific amounts due to him as salaries, allowances and benefits and that it was obvious from these facts that this action was commenced to enforce the rights declared in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008.
Counsel reproduced the orders made in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008 and stated that they were declaratory orders, as opposed to executory orders, and were not of such a nature that could, on their own, be enforced against Appellant and he referred to the cases ofCarrena Vs Akinlase (2008) All FWLR (Pt. 444) 1403, Akunnia Vs A. G. Anambra State (1977) NSCC 256 and Oloruntoba-Oju Vs Dopamu (2008) All FWLR (Pt. 411) 810. Counsel stated that the only recognized way by which a declaratory judgment can be enforced is by commencing subsequent proceedings when a party fails to honour the declaratory orders contained in the judgment and he referred to the cases of Amori Vs Iyanda (2008) All FWLR (Pt. 416) 1864, Onyeama Vs Obodoh (2010) All FWLR (Pt. 515) 235 and Okoya Vs Santilli (1990) 2 NWLR (Pt. 131) 172. Counsel stated that it was the failure of the Appellant to abide the declaratory orders made in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008 that compelled the commencement of the present suit and that as such the suit cannot be said to constitute an abuse of process and the lower Court did not err in saying that the suit was for the implementation of the rights declared in favour of the Respondent in Suit No PLD/J51/2008.
Counsel stated that the present action was not a re-litigation of the issues already determined in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008 and neither was it wanting in bona fides and he referred to the cases of Umeh Vs Iwu (2008) All FWLR (Pt 418) 360 and Saraki Vs Kotoye (1992) 9 NWLR (Pt. 264) 156. Counsel stated that the contention of Counsel to the Appellant that the initiation process adopted by the Respondent in the present case was erroneous and un-contemplated by law and not in accord with due process was not part of the Appellant’s complaints in any of the grounds of appeal in the notice of appeal and were thus improper and he referred to the case of Western Steel Works Ltd Vs Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt 49) 284. Counsel stated that, even if the contention was proper, it has been taken care by the earlier arguments that the only recognized of enforcing a declaratory judgment was by commencing subsequent proceedings and that Section 55 of the Sheriffs and Civil Process Act referred to by Counsel to the Appellant only covered executory judgments and not declaratory judgments. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.
Now, reading through the judgment of the lower Court, the portion of the judgment against which this issue for determination is directed is the following statement of the lower Court:
“… as was earlier decided in a Ruling by this Honorable Court, the matter as before this Court was to all intents and purposes for implementation of the judgment of the Plateau State High Court which declared that the Claimant was still a staff of the Respondent until his services were lawfully terminated …”
What is obvious from the above excerpt is that the determination that the present suit was for the implementation of the orders made in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008 was not made in the judgment delivered by the lower Court on the 22nd of March, 2018 but in the earlier Ruling delivered by the lower Court on the 7th of February, 2017 on the preliminary objection of the Appellant to the competence of the suit. The above statement is only a re-echo of that finding. The records of appeal show that the Appellant did not appeal against that Ruling at the time it was delivered by the lower Court. It is settled law that a party desiring to appeal against the decision of the lower Court, the National Industrial Court, which is not on a question of fundamental rights must obtain the leave of this Court to do so – Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24, Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt 1593) 74, First Bank of Nigeria Plc Vs Agbakwuru (2018) LPELR 43639(CA), Babalola Vs Attorney General, Federation (2018) LPELR 43808(CA). The records of appeal show that the Appellant did not at anytime seek for and/or obtain the leave of this Court to appeal against the said Ruling of the lower Court.
What the Appellant sought for and obtained the leave of this Court to appeal against was the judgment of the lower Court delivered on the 22nd of March, 2018. The subject matter of the notice of appeal forming the fulcrum of this appeal and dated the 22nd of November, 2018 is the judgment of the lower Court dated the 22nd of March, 2018. This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624. This Court does not thus possess the jurisdiction to, in this appeal, review any finding or determination made in any Ruling or judgment outside those made in the judgment of the lower Court dated the 22nd of March, 2018. A Court of Appeal cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it – Anah Vs Anah (2008) 9 NWLR (Pt. 1091) 75. The Ruling of the lower Court containing the finding against which the first issue for determination in this appeal is directed is not a subject matter of this appeal.
Further, it is a settled principle of Appellate Court practice that an issue for determination in an appeal must, along with the ground of appeal from which it is distilled, be directed at the findings made by the lower Court and which formed the ratio decidendi of the Ruling or judgment appealed against – Babalola Vs The State (1989) 4 NWLR (Pt 115) 264, Coker Vs United Bank for Africa Ltd (1997) 2 NWLR (Pt 490) 641, Omisore Vs Aregbesola (2015) 15 NWLR (Pt 1482) 205. The first issue for determination in this appeal is not directed at a finding made in the judgment appealed against, not to talk of it being against the ratio decidendi of the judgment.
It is irrelevant that the issue for determination in question is couched as being one questioning the jurisdiction of the lower Court to entertain the claims of the Respondent. The law is that though an issue of jurisdiction can be raised at anytime, the laid down procedure for raising it must be followed, particularly as in the instant case where it is an issue of procedural jurisdiction, and not one of substantive jurisdiction – Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 246, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Abiola & Sons Bottling Company Nig Ltd Vs First City Merchant Bank Ltd (2013) LPELR SC.88/2005, Adama Vs State (2018) 3 NWLR (Pt 1605) 94. In Adejobi Vs State (2011) 12 NWLR Pt 1261) 347, the Supreme Court made the point thus:
“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other must be followed…”
The first issue for determination formulated by the Appellant in this appeal is thus without basis. It is incompetent and is liable to be struck out.
These said, however, the Court will, for completeness sake, still proceed to consider the merits of the issue for determination. The contentions of Counsel to the Appellant on the issue for determination are basically two-fold; (i) that, from the claims of the Respondent before the lower Court, it is incorrect that the present suit was commenced for the implementation of the orders made in favour of the Respondent by the High Court of Plateau State in Suit No PLD/J51/2008; and (ii) that, if the suit was for the implementation of the orders in Suit No PLD/J51/2008, it is not one of the contemplated ways of enforcing judgments and it is thus improper and an abuse of Court process.
On the first contention, it is pure common sense that it is the cause of action of claimant in an action that determines the essence of a suit. Cause of action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim for the relief or remedy being sought. It is every fact which is material to be proved to entitle the claimant to succeed or all those things necessary to give a right to relief in law or equity – Akinkunmi Vs Sadiq (2001) 2 NWLR (Pt. 696) 101, Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt 903) 449, Williams Vs Williams (2008) 10 NWLR (Pt 1095) 364, Duzu Vs Yunusa (2010) 10 NWLR (Pt 1201) 80. It consists of two elements, namely: (a) the wrongful act of the defendant which gives the claimant his cause of complaint; and (b) the consequent damage – Savage Vs Uwechia (1975) 2 SC 213, Adeosun Vs Jibesin (2001) 11 NWLR (Pt. 734) 290, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (Pt. 913) 602, Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606.
It follows that to determine the cause of action in a matter, a Court must read not just the reliefs sought or a few paragraphs of the pleadings in isolation, but all the paragraphs of the pleadings of the party together to get a flowing story of the party; it is the totality of the pleadings that states the case of the party –Okochi Vs Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt. 853) 142.
Reading through the case of the Respondent as made out in his entire statement of facts before the lower Court, and as summarized in the earlier part of this judgment, it is obvious that it was the failure, neglect and/or refusal of the Appellant to abide by the directives contained in the orders made in his favour by the High Court of Plateau State in Suit No PLD/J51/2008, i.e. to pay him his salaries and allowances appertaining to the office of Director of Taxes from 23rd October, 2007 until his employment is validly or lawfully severed, that compelled him to commence the present suit. The sums stated reliefs sought in the suit were what the Respondent believed to represent the salaries, allowances and entitlements due to him from the Appellant, as directed by the High Court of Plateau State in Suit No PLD/J51/2008, and nothing more. This case was thus clearly commenced to enforce the directives contained in the orders made in his favour by the High Court of Plateau State in Suit No PLD/J51/2008.
With regards to the second contention of the Counsel to the Appellant that the present action as commenced is not one of the contemplated ways of enforcing judgments and is as such improper and an abuse of process, it is settled law that it is the nature of the orders and directives given in a judgment that determines the manner of their enforcement – Okoya Vs Santilli (1990) 2 NWLR (Pt. 131) 172, Incorporated Trustees of Nigerian Governors Forum Vs Riok (Nig) Ltd (2018) LPELR 44915(CA). In Government of Gongola State Vs Tukur (1989) 9 SC 105 at pages 122-123, Nnaemeka-Agu, JSC explained the point thus:
“In the case of Akunnia v. Attorney-General of Anambra State …, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory judgment. Both must be obeyed but it is only the former that can be executed; such an execution may be stayed. The question is whether the judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap 189) Laws of the Federation, 1958, deals elaborately with process for execution that are recognised at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed.
I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints the method of enforcement of a particular judgment depends upon the type of judgment.
In the sum;
(i) A judgment/order for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtors summons.
(ii) A judgment for possession of land may be enforced by a writ of a writ of possession, a writ of sequestration or a commits/order.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.”
The necessary question that follows is – what was the nature of the orders made in favour of the Respondent in Suit No PLD/J51/2008? An enrolled copy of the orders forms part of the records of appeal and the orders read thus:
“(i) It is hereby declared that the Plaintiff is a staff and/or employee of Plateau State Board of Internal Revenue.
(ii) It is further declared that the letter of the 1st Defendant dated 23rd 11-2007 disclaiming the Plaintiff as its staff is null, void and of no effect whatsoever.
(iii) It is hereby declared that the 1st Defendant shall pay the Plaintiff’s salaries and allowances appertaining to the office of Director of Taxes from 23rd October, 2007 until his employment is validly or lawfully severed.”
These orders merely declared the state of affairs of the employment of the Respondent with the Appellant and rights appurtenant to the Respondent from that state of affairs, without an order for the enforcement of the rights or how the rights are to be claimed or enjoyed by the Respondent. The orders qualify as declaratory orders – Ho Vs Abubakar (2011) 12 NWLR (Pt. 1261) 323, Celtel Nigeria Ltd Vs Econet Wireless Ltd (2014) LPELR 22430(CA), Nigerian Ports Authority Vs Sama (2019) LPELR 47613(CA). Our case law is replete with decisions that say that the recognized mode of enforcing a judgment containing declaratory orders is by commencing a subsequent action when the orders are breached or not complied with – see for example the cases of Okoya Vs Santilli (1990) 2 NWLR (Pt. 131) 172, Ogunlade Vs Adeleye (1992) 8 NWLR (Pt 260) 409, Kwankwaso Vs Governor of Kano State (2006) 14 NWLR (Pt. 1000) 444, Amori Vs Iyanda (2008) 3 NWLR (Pt. 1074) 250, Abeje Vs Alade (2010) LPELR 3561(CA), Wakili Vs Buba (2016) 13 NWLR (Pt. 1529) 323, Idika Vs Offia (2017) LPELR 42280(CA). In Olabomi Vs Oyewinle (2013) 13 NWLR (Pt.1372) 566 at 580, Rhodes-Vivour, J.S.C. made the point in the lead judgment thus:
“A declaratory judgment or order is one that proclaims or declares the existence of a legal relationship, but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed, fresh proceedings are needed for enforcement. Declaratory judgment cannot be enforced by execution as there is nothing to enforce.”
In Atuona Vs Ozobia (2015) LPELR 25759(CA), this Court emphasized the point further thus:
“There is nothing in law precluding a person from bringing a suit to Court to enforce a right declared as his by previous judgments of a Court of competent jurisdiction. This cannot amount to relitigation of the issue decided in those judgments. What is to be considered in the current suit is whether the said previous judgments did declare such rights as his or not and if it is correct that the right was adjudged as his, why it should not be enforced.”
The action commenced by the Respondent before the lower Court was the contemplated, recognized and the sanctioned mode of enforcing compliance with the orders of the nature made in his favour by the High Court of Plateau State in Suit No PLD/J51/2008. The action was thus proper and did not constitute an abuse of the process of Court. Section 287(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandates all authorities, persons and Courts to enforce the decisions of a High Court in any part of the Federation. The lower Court thus had the duty, power and jurisdiction to hear and determine an action seeking to enforce the judgment of the High Court of Plateau State – Uli Microfinance Bank (Nig) Ltd Vs Norbert (2018) LPELR 44953(CA), Uli Microfinance Bank (Nig) Ltd Vs Okwuchukwu (2018) LPELR 44956(CA), Bureau of Public Enterprises Vs BFIG Group Corporation (2019) LPELR 46745(CA). The two contentions of the Appellant on the first issue for determination well totally misconceived. The issue for determination is resolved in favour of the Respondent.
Issue Two
Whether or not, in the circumstances of the case and considering the fact that the Respondent did not prove his case, the trial Court was right to have made consequential orders in favour of the Respondent?
In arguing the second issue for determination, Counsel to the Appellant restated the established principles of civil litigation that the burden of proof lies on the person who desires that judgment be entered in his favour and that the burden of proof is discharged on a balance of probabilities and he referred to the provisions of Sections 131, 133(1) and 134 of the Evidence Act and the case of Nigergate Limited Vs Niger State Government (2004) LPELR 5947(CA). Counsel stated that having found that the Respondent woefully failed to discharge the burden of proof on him in proving his claims, the proper order for the lower Court to have made was one of dismissal of the claims, and it was not opened to the lower Court to make the consequential orders it made in the judgment and he referred to the case of Xtoudos Ltd Vs Taisei Ltd (2006) 26 NSCQR 1185. Counsel stated that the consequential orders made were not prayed for by the Respondent and that Courts are not allowed to grant a party a relief that he did not claim and he referred to the cases A. G. Federation Vs AIC Ltd (2000) 10 NWLR (Pt. 675) 293 and Edilcon (Nig) Ltd Vs UBA Plc (2017) 18 NWLR (Pt. 1596) 74. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
On his part, Counsel to the Respondent stated there was no contest between the parties that the Respondent was an employee of the Appellant occupying the position of Director Taxes at the times material to this suit and that this issue was settled by the High Court of Plateau State in Suit No PLD/J51/2008. Counsel stated that the issue before the lower Court was whether as Director of Taxes, the Respondent was entitled to be paid his salaries and allowances in the sums claimed calculated at par with those of the Executive Chairman of the Appellant and/or of a Permanent Secretary, Auditor General and Accountant General of Plateau State. Counsel stated that the finding of the lower Court was that the Respondent did not lead credible evidence to prove that he was entitled to be paid the sums claimed and calculated at par with those of the Executive Chairman of the Appellant and with those of a Permanent Secretary, Auditor General and Accountant General of Plateau State as his salaries and allowances as Director of Taxes of the Appellant. Counsel stated that the lower Court did not find that the Appellant did not prove that he was entitled to be paid salaries and allowances as the Director of Taxes of the Appellant for the duration of the period claimed and hence the consequential order that Appellant should calculate and pay the Respondent his salaries and allowances as Director of Taxes.
Counsel stated that the entitlement of the Respondent to be paid salaries and allowances as Director of Taxes by the Appellant had been established in Suit No PLD/J51/2008 and that what the Respondent failed to do in the present case was to prove the exact amount claimed as his due salaries and allowances and that it will be unjust and inequitable for the Respondent to go back empty handed in the circumstances. Counsel stated that the lower Court is a Court of both equity and justice and where it finds that a claimant has established a right, it has a duty to provide a remedy and this was what the lower Court did by the consequential orders it made and he referred to the case of BFI Group Corporation Vs BPE (2012) LPELR 9339(SC) and the provisions of Section 13 and 15 of the National Industrial Court Act 2006. Counsel stated that the Appellant who refused to pay the Respondent his salaries and allowances as Director of Taxes as directed by the High Court of Plateau State in Suit No PLD/J51/2008 should not be allowed to benefit from its own wrong and he referred to the cases of BMNL Vs Ola Ilemobola Ltd (2007) All FWLR (Pt. 379) 1340 and Solanke Vs Abed (1962) 1 All NLR 230. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.
In resolving this issue for determination, it is necessary to restate some of the backgrounds facts of the present action.
Following a disagreement as to whether the Respondent was a staff of the Appellant, the Respondent approached the High Court of Plateau State for a declaration of the status of his employment with the Appellant in Suit No PLD/J51/2008. In a considered judgment delivered on the 6th of June, 2011, the High Court declared that the Respondent was a staff of the Appellant as Director of Taxes and that the Appellant should pay the Respondent “salaries and allowances appertaining to the office of Director of Taxes from 23rd October, 2007 until his employment is validly or lawfully severed.” The Appellant failed, neglected and refused to pay the salaries and allowances as declared by the High Court and consequent on which the Respondent commenced the present suit claiming for (i) the sum of N138,930,282.41 being his salaries, allowances and fringe benefits from 23rd October, 2007 to the month of May 2015; and (ii) the sum of N1,598,889.80 monthly being his salaries, allowances and fringe benefits from the month of June 2015 until his employment is lawfully and validly severed.
The lower Court found in the judgment that the Respondent failed to lead credible evidence to prove that the sums claimed were the sums due to him as his salaries and allowances as Director of Taxes of the Appellant for the periods claimed. The lower Court however went ahead to direct the Appellant to calculate the rightful emoluments due to the Respondent as its Director of Taxes, bearing in mind the promotions he would have had, if any, from the 23rd of October, 2007 till date or till the date his employment would have been statutory severed by retirement and to pay same over to the Respondent and that the Appellant should do so within one month of the judgment. This consequential order made by the lower Court is the fulcrum of the complaint of the Appellant under this issue for determination.
There is no doubt that one of the inherent powers of the Court is to make consequential orders in the interest of justice even though the order was not specifically asked for by either party to the case – Akapo Vs Hakeem Habeeb & Ors (1992) 7 SCNJ 119 and Eyigebe Vs Iyaji (2013) 11 NWLR (Pt. 1365) 407. The power of a Court of law to make consequential orders is inherent and flows from its jurisdiction to try the case.
All superior Courts of record possess inherent powers not necessarily derivable from any law. It is embedded in a Court to ensure and enhance a free flow of justice to end users – Awoniyi Vs Registered Trustees, AMORC (2000) 10 NWLR (Pt. 676) 522, All Progressives Congress Vs Karfi (2018) 6 NWLR (Pt. 1616) 479. The Courts make consequential orders to protect the judgment, particularly declaratory or the non-executory judgments, in favour of the plaintiff. Even when the relief for consequential order is not specifically asked for from the Court, the Court has the power to grant such relief as a consequential relief to give effect to its judgment or declaration which it follows, once from the facts, it is incidentally necessary to protect established rights – Amaechi Vs INEC (2008) All FWLR (Pt 407) 1, Okoye Vs Chief Lands Officer, Rivers State (2005) 4 SCNJ 158, Karaye Vs Wike (2019) LPELR 49382(SC).
It must however be understood that consequential order is an order which gives effect to the judgment already given by the Court. It is not granted as a fresh, unclaimed or unproven relief. The inherent power of a Court to make consequential orders does not include the power to grant a substantive or principal or basic relief, that the nature of the case in the pleading necessitates what should be asked for as part of the cause for the action and without which the action fails ab initio. The Supreme Court, per Tobi JSC, in Eagle Super Pack (Nig) Ltd Vs ACB Plc (2006) 19 NWLR (Pt. 1013) 20 made the point thus:
“A consequential order is an order that follows as a result of the earlier one which can be called for this purpose as the main order. It may have an indirect or secondary result in the relief awarding process. A consequential order is appurtenant to the main or principal order. A clearly fresh order cannot be a consequential order.”
In Awoniyi Vs Registered Trustees of AMORC supra, the Supreme Court held, per Iguh JSC, that the purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed, or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit, nor was it in the contemplation of the parties that such a relief would be the subject matter of a formal executory judgment or order against either side to the dispute.
The tenure of case law authorities suggest that where a trial Court finds that a party has failed to prove its substantive claims in a matter, it cannot proceed to make consequential orders in favour of that party – Obayagbona Vs Obazee (1972) 5 SC (Reprint) 159, Liman Vs Mohammed (1999) 6 SCNJ 142, Chikere Vs Okegbe (2000) 7 SCNJ, 128 and Eyigebe Vs Iyaji supra. However, it is settled law that cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt. 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). Thus, the position taken in earlier cases by Courts, even by a Court higher up in the judicial hierarchy, will only bind and govern decisions in a subsequent case where the facts and circumstances are the same or very similar – Abubakar Vs Nasamu (No. 2) (2012) 17 NWLR (Pt. 1330) 523, Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55, Marine Management Association Inc & Anor Vs National Maritime Authority (2012) 3 NWLR (Pt. 1333) 506.
In the instant case, the High Court of Plateau State declared in Suit No. PLD/J51/2008 that the Appellant should pay to the Respondent salaries and allowances appertaining to the office of Director of Taxes from 23rd October, 2007 until his employment is validly or lawfully severed in a judgment delivered on the 6th of June, 2011. The Appellant did not appeal against this judgment. The Respondent commenced the present action because the Appellant failed to pay the salaries and allowances as declared by the High Court of Plateau State and he claimed specific sums that he believed represented the said salaries and allowances. It was not the case of the Appellant in the present case that it did not have a salary scale for its Director of Taxes in 2007 and up till date. The lower Court found in the judgment that the declaration made in favour of the Respondent in Suit No PLD/J51/2008 still subsisted and was valid. It is the view of this Court that it was not out of place, on these set of facts and circumstances, for the lower Court to have made the consequential order in question after having found that the Respondent did not prove that the specific sums he claimed represented his salaries and allowances as declared by the High Court in Suit No PLD/J51/2008.
The consequential order only served to give effect to the declaration already made in favour of the Respondent by the High Court and which declaration the lower Court found to still be subsisting and valid. To do otherwise will be to leave the Respondent with a declaration of a right that has no remedy. The law is an equal dispenser of justice, and leaves none without a remedy for his right, and wherever there is a wrong, there ought to be a remedy to redress that wrong – First Bank of Nigeria Plc Vs Associated Motors Co. Ltd (1998) 10 NWLR (Pt. 570) 441, Oyekanmi Vs NEPA (2000) 15 NWLR (Pt. 690) 414, Lau Vs PDP (2017) LPELR 42800(SC). This is the essence of the maxim Ubi jus, ibi remedium – where there is a right, there is a remedy, which Oputa, JSC eloquently expatiated on in Bello Vs Attorney General, Oyo State (1986) 5 NWLR (Pt 45) 828 SC, thus:
“Holt, CJ in the now famous case of Ashby v. White (1703) postulated the principle that ‘if a Plaintiff has a right, he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal’. The maxim ‘Ubi jus ibi remedium’ is simply the Latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or Statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action. They usually look at the facts.”
There are case law authorities wherein the Supreme Court made and approved the making of consequential orders for the payment of salaries and allowances to office holders following declarations made in their favour by the Courts that they were entitled to hold that office, even where no such claim for salaries and allowances was made before the Courts – Unreported decision of in Suit No SC. 119/2007 – Attorney General, Benue State Vs Umar delivered on the 15th of April, 2008, Eze Vs Governor of Abia State (2014) 14 NWLR (Pt 1426) 192, Governor of Ekiti State Vs Olubunmo (2017) 3 NWLR (Pt 1551) 1. The consequential order made by the lower Court was thus proper.
The Court finds that the contention of the Counsel to the Appellant on the second issue for determination was also not well founded. The second issue for determination is similarly resolved in favour of the Respondent.
This Court finds that the appeal of the Appellant lacks merit and it is deserving of an order of dismissal. This takes us to the cross appeal of the Respondent.
The Cross-Appeal
Counsel to the Respondent, as Cross Appellant, distilled one issue for determination in the cross appeal and it was:
Whether the learned trial Judge was right in finding that the Respondent failed to prove that he was entitled to the sums he claimed against the Appellant?
In arguing the issue for determination, Counsel to the Respondent largely repeated the arguments he canvassed before the lower Court in his final written address. In essence, Counsel requests this Court, in this cross appeal, to reconsider the arguments he canvassed in the lower Court and come to a different decision from that of the lower Court. This is a very improper approach in an appeal. It is settled law that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. Thus, the responsibility of an appellant or cross appellant on appeal is to show why the Appellate Court should set aside the decision of the lower Court and not to invite the appellate Court to reconsider the arguments he presented before the lower Court. It is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the findings of fact made by the trial Court from the evidence led and show why they should not be upheld – Uor Vs Loko (1988) 2 NWLR (Pt. 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt. 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (Pt. 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543. This Court ought to discountenance this cross appeal for this simple reason. However, again for the purpose of completeness, the Court will sift out the portions of the arguments that are relevant to the cross appeal and consider them.
In order to make sense of the arguments of Counsel to the Respondent, it is necessary to point out that in making his claims before the lower Court, the Respondent put the salaries, allowances and fringe benefits he claimed as Director of Taxes of the Appellant at par with those of the Executive Chairman of the Appellant and which he said was at par with those of a Permanent Secretary in Plateau State, the Auditor General of Plateau State and the Accountant General of Plateau State. The contention of the Respondent was that having been at one time appointed as Executive Chairman of the Appellant, he was entitled to the salaries, allowances and fringe benefits of that office until retirement, notwithstanding that he removed from that office and irrespective of the fact that the declaration of the High Court of Plateau State in Suit No PLD/J51/2008 was that the Appellant should pay him salaries as Director of Taxes. The Respondent contended that this was in accord with the common practice in the public service of Plateau State and all over Nigeria.
In deliberating on the claims of the Respondent, the lower Court noted that the sums claimed by him were in the nature of special damages which must be specifically proved and it continued thus:
“In the judgment of the High Court upon which the Claimant has based his reliefs, the Court held that the Claimant was entitled to return to the main stream of the public service after he was relieved of his political appointments. In the mainstream of the public, the Claimant never challenged his termination as the Chairman of the Board of Internal Revenue Service. Thus by the records before the Court, the Claimant’s appointment as the Chairman of the Respondent came to an end on the 29th June, 2004 (see Exhibit SDM 13). That means that the salaries and emoluments claimed by the Claimant are those of the office of Director of Taxes and not as Chairman of the Board of Internal Revenue.
It is the Claimant’s position that having attained the position of Chairman of the Respondent, he carries the salaries and allowances of that office to his retirement as it is common knowledge under the public service that once a public servant attains a particular salary status, if he leaves office, he cannot be subsequently paid a lower salary. I must disagree with the Claimant on this assertion. Where a claimant seeks certain reliefs as special damages, he must specifically prove same. The reliance of the Claimant on the supposed common knowledge that civil servants having attained a certain earning status cannot be reverted to a lesser pay grade will not fly with this Court. Also, I would like to believe that such a rule should normally apply to career civil servants and not political appointees. The Claimant has failed to show the Court that he is entitled to the salaries of a Permanent Secretary by virtue of the appointment he held. He has not shown the Court whether, during his appointment as Chairman Board of Inland Revenue, his employment as a Director of Taxes was paused or that he was concurrently being promoted and that on reporting back to the said employment which the Plateau State High Court affirmed, he was to resume as or that he attained the rank of Permanent Secretary and as such should continue to receive his salaries as such …”
Counsel to the Respondent contended that by virtue of the provision of Section 124(1)(a) of the Evidence Act, facts which are of common knowledge do not require proof and that the sole witness for the Appellant did not deny in his testimony the existence of the alleged common practice of employees earning the salary and allowances of their highest postings till retirement in the public service of Plateau State and all over Nigeria and that the Respondent was not cross examined on the point and that this was tantamount to an admission and he referred to the case of Gaji Vs Paye (2003) 8 NWLR (Pt 823) 583. Counsel stated that the statement of the lower Court that the practice maybe applicable to career civil servants and not political appointees meant that the lower Court labeled the Respondent a political appointee and that there was no shred of evidence before the lower Court showing that the appointment of the Respondent as the Executive Chairman of the Appellant was political and that the statement of the lower Court was thus based on conjecture or speculation and that this not allowed and he referred to the case of Dakour Vs L.S.U.R.B. (2015) All FWLR (Pt. 809) 917.
Counsel stated that the findings showed that the lower Court misconceived the Respondent’s claim and that if the lower Court had fully appreciated the Respondent’s claim, it would have known that the Respondent did not claim salaries as Permanent Secretary but as Director of Taxes who, because he had occupied the position of Executive Chairman of the Appellant, cannot take a salary lower than that of the office of the Executive Chairman. Counsel stated that had the lower Court properly understood the case of the Respondent and had evaluated the evidence led by the parties with that understanding, it would have come to the conclusion that the Respondent proved his entitlement to the sums claimed as his evidence preponderated over that of the Appellant who brought no contrary evidence to controvert the sums claimed by the Respondent and he referred to the cases of Odofin Vs Mogaji (1978) 11 NSCC 275 and Wachukwu Vs Owunwanne (2011) All FWLR (Pt. 589) 1044. Counsel urged the Court resolve the issue for determination in favour of the Respondent and to accordingly allow the appeal and enter judgment for the Respondent in the sums claimed before the lower Court.
In his response, Counsel to the Appellant, as Cross Respondent, adopted the sole issue for determination distilled by Counsel to the Respondent on the cross appeal and he presented arguments in respect thereof. This Court must say that it had difficulty in following the contentions of the Appellant’s Counsel in the Cross Respondent’s brief of arguments. Counsel expended a lot of energy in arguing the case of the Respondent as presented on the pleadings and evidence before the lower Court rather than in identifying the reasoning of the lower Court in finding that the Respondent failed to lead credible evidence to prove the sums claimed and in seeking to justify the reasoning and finding of the lower Court. Counsel failed to understand that the responsibility of a respondent on appeal is to show why the appellate Court should uphold the decision of the lower Court and not to invite the Appellate Court to consider the arguments in respect of the case presented before the lower Court – Marinho Vs United Bank of Africa Plc (2017) LPELR 43253(CA), Enemuoh Vs Enemuoh (2017) LPELR 43785(CA).
Counsel to the Appellant stated that the case of the Respondent before the lower Court was for salaries and entitlements as Director of Taxes of the Appellant, but that the sums claimed were in figures at par with the salaries and entitlements of the Executive Chairman of the Appellant. Counsel stated that the Respondent conceded that he had ceased to be the Executive Chairman of the Appellant at the times material to this case and he relied on an alleged common practice in the public service of Plateau State in asserting his claims and that the onus was on him to prove the existence of such common practice and that the reliance placed on the provisions of Section 124(1)(a) of the Evidence Act by Counsel to the Respondent was inapposite in the circumstances of this case. Counsel stated that the sums claimed by the Respondent were in the nature of special damages and that it was incumbent on the Respondent to lead clear and credible evidence in support of the claims as special damages cannot be inferred from surrounding circumstances and that the Respondent woefully failed to do so and he referred to the cases of Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt. 1695) 227, Ibrahim Vs Garki (2017) 9 NWLR (Pt. 1571) 377 and FCDA Vs MTN Nig Communications Ltd (2017) 10 NWLR (Pt. 1573) 217. Counsel referred to definition of what amounts to credible evidence in the case of Agbi Vs Ogbeh (2006) 11 NWLR (Pt 990) 65 and stated that the Respondent having failed to lead credible evidence in proof of his claim, the lower Court was correct in finding that he failed to discharge the burden of proving the sums claimed and that there was no basis for this Court interfere with this finding and he referred to the case of Umoh Vs Udoh (2017) 4 NWLR (Pt 1555) 251. Counsel urged the Court to resolve the issue for determination on the cross appeal in favour of the Appellant and to dismiss the cross appeal.
As stated earlier, the Respondent commenced this case to enforce the declaration made in his favour by the High Court of Plateau State in Suit No PLD/J51/2008 that that the Appellant should pay to the Respondent salaries and allowances appertaining to the office of Director of Taxes from 23rd October, 2007 until his employment is validly or lawfully severed. In its claims before the lower Court, the Respondent based the his calculations of the sums due to him on the salaries, allowances and fringe benefits of the Executive Chairman of the Appellant, and which he said was at par with those of a Permanent Secretary in Plateau State, the Auditor General of Plateau State and the Accountant General of Plateau State on the ground that having been at one time appointed as Executive Chairman of the Appellant, he was entitled to the salaries, allowances and fringe benefits of that office until retirement. The Respondent did not base the calculations of the sums on the salaries and allowances due to the Director of Taxes of the Appellant.
The claim of the Respondent for the respective sums as salaries, allowances and fringe benefits was doomed to fail from the very inception of the case. This is because the law is well settled that enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. It is not opened to the parties to change the terms of the judgment or to the Court to seek to review, amend or alter the judgment in the process of enforcing same – Alpha Properties International Ltd Vs NDIC (2006) 1 NWLR (Pt. 962) 624, Igbokoyi & Ors Vs Lawal (2013) LPELR 22006 (CA), Umar Vs Manager (2018) LPELR 44526 (CA), Bureau for Public Enterprises Vs BFI Group Corporation (2019) LPELR 46745(CA), Dayson Holdings Ltd Vs BFI Group Corporation (2019) LPELR 46753(CA). Thus, the claims of the Respondent having not been based on the salaries and allowances of a Director of Taxes of the Appellant as declared by the High Court of Plateau State, but on those of the Executive Chairman of the Appellant, they could not have succeeded, any which way.
Further, the Respondent predicated the calculation of the sums he claimed on an alleged common practice in the public service of Plateau State and all over Nigeria. It was not his case that the said common practice has been codified and he did not tender any document, regulations or rules of the public service of Plateau State or of any other State of Nigeria embodying the common practice. It was also not his case that the common practice had attained such notoriety that the Courts will take judicial notice of it and he did not refer to one case law authority where the common practice had been applied. It is settled law that where a party predicates his case on a rule of common practice, custom or customary usage and which has not been codified or been judicially noticed, he has the burden of proving the existence and the applicability of the rule by cogent and credible evidence – Olowu Vs Olowu (1985) 3 NWLR (Pt. 13) 372, Agbai Vs Okogbue (1991) 7 NWLR (Pt. 304) 391, Ezeokonkwo Vs Okeke (2002) 11 NWLR (Pt 777) 1. Now, credible evidence to prove a fact in issue means evidence worthy of belief and for evidence to be worthy of belief and credit, it must proceed from credible sense and be credible in the entire circumstances. It should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe – Agbi Vs Ogbeh (2006) 11 NWLR (Pt 990) 65, Ogboru Vs Ibori (2006) 17 NWLR (Pt 1009) 542, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Access Bank Plc Vs Albabaminu International Ltd (2016) LPELR 41605(CA). In proving the alleged rule of common practice upon which he predicated his case, the Respondent testified as the sole witness and the totality of the evidence he gave on the existence of the common practice was that under the civil service and other extant laws, once a public servant attains the rank of Chairman, Board of Inland Revenue, he retires on the salaries and emoluments of that office no matter what position he subsequently holds in the public service. The witness did not refer to the said extant laws and neither did he state the origin of the alleged common practice; how it came to be or the persons to whom the practice had been applied to in the past. The ipse dixit of the witness cannot, and did not, constitute credible evidence of the alleged common practice.
Further, it is settled that a rule of common practice, custom or customary usage must be strictly proved. Although, the quality of evidence required for such proof has nothing to do with multiplicity of witnesses, it has, however, been described as unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive. It is desirable and certainly good law that a person other than the party asserting the custom should also testify in proof or support thereof – Ekpenga Vs Ozogula II (1962) 1 SCNLR 423, Oyediran Vs Alebiosu (1992) 6 NWLR (Pt 249) 500 at 558, Ezeanya Vs Okeke (1995) 4 NWLR (Pt 388) 142, Osolu Vs Osolu (2003) 11 NWLR (Pt 832) 608, Adeogun Vs Ekunrin (2004) 2 NWLR (Pt 856) 52. The singular evidence of the Respondent was thus not sufficient to prove the existence of the alleged common practice. It is clear that the Respondent woefully failed to lead credible evidence in proof of the sums he claimed as his salaries, allowances and fringe benefits. The finding of the lower Court to that effect was on very firm ground and cannot be tampered with by this Court. The sole issue for determination on the cross appeal is resolved in favour of the Appellant. The cross appeal of the Respondent is without merit and it is eminently qualified for an order of dismissal.
In conclusion, both the appeal of the Appellant and the cross appeal of the Respondent fail and are hereby dismissed. The judgment of the National Industrial Court sitting in Jos delivered in Suit No NICN/Jos/18/2015 by Honorable Justice R. H. Gwandu on the 22nd of March, 2018 is affirmed. It is hereby reiterated that the Appellant shall calculate the rightful emoluments due to the Respondent as its Director of Taxes, bearing in mind the promotions he would have had, if any, from the 23rd of October, 2007 till date or till the date his employment would have been statutory severed by retirement and shall pay same over to the Respondent within one month of this judgment. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the lead judgment prepared and just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I am at one with his reasoning, finding and conclusion reached thereat that both the appeal of the Appellant and the cross-appeal of the Respondent fails and should be dismissed.
I also dismiss both appeals and abide by all the consequential orders made therein including the on cost.
BOLOUKURUMO MOSES UGO, J.C.A.: I agree
Appearances:
M. Gwani with him, N. R. Bakyil and S. M. Gwani For Appellant(s)
Dr. H. S. Ardzard with him, A. N. Musa, M. M. Madong and M. S Enoch For Respondent(s)
