UNITY BANK PLC. v. P. K. UKPOKOLO & ORS. (2010)

UNITY BANK PLC. v. P. K. UKPOKOLO & ORS.

(2010)LCN/4163(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of December, 2010

CA/B/186/2009

RATIO

PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS AND EVIDENCE IN COURT

In my view from the collective agreement tendered in evidence there is no where it is stated that the agreement is subject to ratification by the Board of Directors of Appellant’s Bank or certified by the Tax Board or the Registrar to the Corporate Affairs Commission- See FAKUADE v. O.A.U.T.H. (1993) 5 NWLR Pt.29 page 47 at 63. Parties are bound by their pleadings and evidence in court. I agree with the learned trial Judge that the Appellant having relied on Exhibit PK U 7 is bound by it. I also agree with the learned Judge that the various collective agreement have been incorporated in the condition of contract of service by necessary implication. PER GEORGE OLADEINDE SHOREMI, J.C.A.

INTERFERENCE WITH FINDINGS OF FACT OF A LOWER COURT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE JUDGMENT OF THE LOWER COURT

It is settled law that an Appellate court would not interfere or intervene with the Judgment of the court below except it is shown that the court fell into error in its evaluation of the facts or applied the law erroneously to finding of facts which were properly made. See OJUKWU v OBASANJO 19 NSCQR Vol, 19 90 at 216. PER GEORGE OLADEINDE SHOREMI, J.C.A.

FORMULATION OF ISSUE FOR DETERMINATION: POSITION OF THE LAW ON HOW ISSUE FOR DETERMINATION MUST BE FORMULATED; WHAT IS THE MAIN PURPOSE OF FORMULATION OF ISSUE FOR DETERMINATION

In CHAMI V. U.B.A. PLC 2010 6 NWLR Pt 1191 page 474 at Page 493 Paras E-F. The Supreme Court said “Issue for determination must be distilled from grounds of appeal which grounds must attack the ratio decidendi of the judgment not anything said by the way or be formulated in vacuum”. In A.N.P.P. V. ARGUNGU (2009) 17 NWLR pt 171, 445, the court held that the main purpose of formulation of issue for determination is to enable the parties to narrow issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Issue 5 as distilled by the Appellant is not covered by any ground therefore the issue and arguments canvassed under same are incompetent. See AGALU V. EGWAWE (2910) 1 All FWLR Pt 532 1609 at 1634; where it was held by the Supreme Court that an appellate court can only hear and decide on issues raised on the grounds of appeal filed. “ PER GEORGE OLADEINDE SHOREMI, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC. – Appellant(s)

AND

1. P. K. UKPOKOLO

2. A. Y. A. ADEMILUYI

3. A. A. ODUMUGBO

4. L. E. OMOYAKHI

5. S. EGHAREVBA – Respondent(s)

GEORGE OLADEINDE SHOREMI, J.C.A.: This is an appeal against the judgment of Acha J. sitting at the High court of Justice Edo State in suit No. B/328/02 delivered on 24th day of January, 2008. The Respondents Claim as Plaintiffs in its Further Amended Statement of Claim as follows:

i) A declaration that in terms of the Collective Agreement which is the agreement between the Nigeria Employers Association of banks insurance and Allied institutions and the Association of senior staff of Banks insurance and Financial Institutions and agreements of 27/2/92 and 17/10/2000 pension payment is based on total emoluments (that is basic salary, housing, transport and luncheon) and not on basic salary.

ii. A declaration that pension payment based on basic salary now being paid by the Defendant to the Plaintiffs severally is contrary to the terms of the collective Agreement and the Memorandum of Agreement of 27/2/92 and of 17/10/2000.

iii. An order of this Honourable Court that pension payment based on total emolument should be paid henceforth and/or from May, 2002 to the plaintiffs.

3. An order of this Honourable Court that pension payment based on total emolument should be paid henceforth and/or from May, 2002 to the Plaintiffs.

iv. An order that the Defendant should pay the Plaintiffs severally the short falls of pension payment being paid by the Defendant to the Plaintiffs based on basic salary instead of total emoluments from February 2001 till April, 2002.

The shortfall for the 1st Plaintiff is N118,518.00

The shortfall for the 2nd Plaintiff is N151,433.00

The shortfall for the 3rd Plaintiff is N69,307.20

The shortfall for the 4th Plaintiff is N52,010.83

The shortfall for the 5th Plaintiff is N47,410.66

The Plaintiffs are also seeking a declaration of this Honourable Court that they are severally entitled to an increase on their pension benefit of 150% based on the review of pension rates.

The Appellant as Defendant also amended its statement of defence as contained on pages 37-38 of the Records’

Issues were joined and the case went to trial. At the end of the case a considered judgment was given and it went in favour of Respondents as Plaintiffs.

The Appellant being dissatisfied with the said judgment appealed to this court. The Appellant filed Eight gounds of appeal quoted hereunder as follows:-

GROUND 1

The learned trial Judge erred in law by holding the defendant bound by the various collective agreements, on the ground of the defendants participation in the making of the agreement

GROUND 2

The learned trial judge erred in law by granting relief beyond the relief sought by the Plaintiffs.

GROUND 3

The learned trial Judge misdirected himself, when he failed to consider the defence put forward by the defendant.

GROUND 4

The trial Judge erred in law when he held that the Plaintiffs (retires of the defendants bank) could benefit from the provision of the collective agreement exhibit PKU 7.

GROUND 5

The trial court erred in law when it awarded the claims of the plaintiff who failed to discharge the burden of proof placed on them, that they are entitled to the said claims.

GROUND 6

The learned trial judge erred in law when he failed to give the full legal weight to exhibit PKU 10 as representing the extant policy of the defendant concerning pension and gratuity.

GROUND 6

The learned trial Judge erred in law when he failed to give the full legal weight to exhibit PKU 10 as representing the extent policy of the defendant concerning pension and gratuity.

GROUND 7

The learned trial Judge erred in law when he suo motu applied the doctrine of implied incorporation of the collective agreement when it was not canvassed by the Plaintiffs

GROUND 8

The judgment is against the weight of evidence

Briefs were filed and exchanged by parties in this court’ when the appeal came up for hearing Enehikhare Esq- counsel for the Appellant adopted his brief dated 29/7/09 filed on 28/10/09. He relied on the argument in the brief and urged the court to allow the appeal.

Ebesunun Esq for the Respondent also adopted his Respondents brief of argument dated 15/12/09 deemed filed on 15/12/09. He relied on same and urged the court to dismiss the appeal in favour of the Respondents.

The Appellant distilled five (5) issues for determination and they are reproduced hereunder : –

“In the Appellant’s view, the issues that call for determination in this appeal are as follows:

1. Whether the learned trial Judge was right to hold that participation of the Appellant’s officials in making the various collective agreements makes the Appellant bound by their terms and capable of beings enforced against the Appellant?

2. Whether the learned trial Judge was right to base the calculation of the respondents monthly pension on total emolument rather than basic salary.

3. Whether the learned trial Judge did not grant to the respondents, relief beyond what was claimed?

4. Whether the learned trial Judge’s findings were derived from evidence adduced at the trial and whether the findings are consistent with probable evidence properly evaluated?

5.Whether the learned trial Judge adequately considered the issue of jurisdiction raised by the appellant”?

The Respondents also distilled 5 five issue for determination even though there is no cross appeal I also quote from the brief as follows:

“In my humble opinion, the issues for determination in the appeal are as follows:

1. Whether the learned trial judge was not right in holding that in terms of the various collective agreements and the Trust Deed entered into by the management of the Defendant/Appellant and

2. Whether the learned trial Judge in his judgment granted relief not sought by the Plaintiff/Respondents.

3. Whether the learned trial Judge was not right in holding that from evidence available on record the calculation of the Plaintiffs/Respondents pension benefits ought to be based on total emolument and not on basic salary.

4. Whether the learned trial Judge’s findings are not derived and founded and property evaluated from the totality of the evidence before him.

5. Whether the learned trial Judge was not right in giving judgment to the Plaintiffs/Respondent from the totality of the evidence before him”.

The Appellant and the Respondents while distilling issues for determination did not marry the issues to any of the grounds of appeal. When there are I grounds of appeal there are five issues distilled by the Appellant and the Respondents.

On Issue one the Appellant is of the view that the trial Judge did not adequately evaluate the evidence before him and consider the principle of incorporation in order to apply same to the evidence before him. He supported his assertion with the following case AFRIBANK V. OSISANYA (2000) 1 NWLR P.642 at 598

In his argument he condemned the trial Judge for relying on OLAREWAJU V. AFRIBANK- (2001) 13 NWLR Pt.731 at 691. He argued that the various collective agreement entered into lacked absolutism. They could still be subject to further negotiation and ratification –

In answer to issue one the Respondents argued that the trial Judge was right to hold that all the relevant collective agreement of contract of employment regarding issues agreed upon between the Appellant and Respondents were binding and enforceable and their terminal benefit ought to be based on total Emolument see Exhibit P.K U2. He submitted that the Appellant has failed to discharge the burden of proof placed on them.

Let me say that the case of the Appellant regarding this issue is that the collective agreement was, subject to ratification by a third party viz Board of Directors of Appellant’s bank.

Parties are bound by their pleadings and evidence in court. I agree with the learned trial Judge that the Appellant having relied on Exhibit PK U 7 is bound by it. I also agree with the learned Judge that the various collective agreement have been incorporated in the condition of contract of service by necessary implication. This issue is resolved in favour of the Respondent.

On issue two as to whether the trial Judge was right to base his calculation of the Respondent monthly pension on total emolument rather than basic salary.

I can not see any difference in the formulation of this issue as not to be tied to issue No. 1.

It is the argument of the Appellant that the regulatory terms of Respondents contract of employment regarding pension was agreed upon at the period of engagement vide Exhibit PKU 10- He referred to OSISANYA Supra. He argued that the learned Judge misconceived facts before him in arriving at his decision.

He further argued that the trial Judge fell into error by relying on Exhibit PKU 7. He said the Judge failed to marry exhibit PKU 10 and PKU

2. He submitted that no collective agreement is self ratifying.

The Respondent on issue two submitted that the teamed trial Judge was right to hold that Respondent benefit ought to be calculated based on their total emolument He referred to Page 92 lines 9-11 of the record of proceedings where he gave copious consideration to exhibit PKU 10 which was not to be taken in isolation on the other exhibits tendered by the Plaintiffs.

The trial Judge referred to exhibit PKU 2 and PKU 7. He said the Appellant is to prove that the exhibit does not regulate pension benefit of its retired officers. He referred to Exhibits PKU 1, 8, 9, 11 and 12.

In considering this issue I say that all exhibits tend to regulate and constitute pension policy of the Appellant. Whatever agreement reached by between the banks association and workers association on Benefit is subject to negotiation. This means that whatever agreement is reached by collective means are subject to negotiation by each unit of the Appellant and representatives of its workers. This is sequence to the Exhibit PKU 4 which was agreement between the Appellant on 27/2/92 and the Respondents. The learned trial Judge is therefore right when he held that Exhibits PKU 2, 4 and 7 are incorporated in Exhibit PKU 3 by implication. From the above reasons I hold that issue two is resolved in favour of the Respondents.

On issue 3 on whether the learned Judge did not grant to the Respondents beyond reliefs beyond what was claimed. The Appellant is of the opinion trial the trial Judge should not have hold as follows I quote “the Respondents are entitled to be paid their monthly pension based on total emolument”

He said that the Respondents by their claim enabled them an increase from February 2001 when the claim was for short fall less from February 2001 to April, 2002. The amount made could be construed to begin from February 2001 ad infinitum if the second relief granted by the Judge is tied to the first relief meant to begin from February 2001- The Appellant claimed that it was in excess of the claim of the Respondents and ought not to stand.

He relied on TEXACO NIG v. KEHINDE (2001) 6 NWLR Pt. 708, 224 239-240- He argued that the court is bound to grant only the relief claimed in the statement of claim and no more. He relied on HARKA AIR SERVICE LTD v. EMEKA KEAZOR (2006) 1 NWLR Pt.960 at 186 – 187.

The Respondents did faulted this argument by referring to Respondents claim in his relief 17(iii), 17(ii). He referred to page 32 line 20 – 22 of the Record of Appeal and relief 17(iv) where the Respondents claimed that they should be paid severally the short fall of pension payment being paid by the Appellant to them based on basic salary instead of total emolument from Feb. 2001 – April 2002 Pages 32 and 33 of Record.

The finding of the trial Judge is as follows I quote “In their various evidence in court, each of the 1st – 5th plaintiff stated what their monthly pension based on total emolument ought to be and as pleaded there is no contrary figure or figures emanating from the Defendant.

That be the case I make the following orders:

1. The Plaintiff are entitled to be paid their monthly pension benefits from February 2001 based on total emolument i.e. basic salary, housing transport and luncheon The short fall if any should be paid to the plaintiffs”. See page 94 lines 15 – 18 and page 95 line 1-3 and 19 of the record of Appeal. The short fall to be paid to the plaintiff if any does not mean ad infinitum as construed by the learned counsel for the Appellant The short fall if any should be paid to the plaintiff means as claimed by the plaintiffs, that is, the short fall from February 2001 when the Respondents retirement started to run to April 2002 when the Respondent initiated the action in court.”

In my view the learned trial Judge has not awarded the Respondent more than what they claimed in excess of what they claimed. The trial Judge made a consequential order that “The Plaintiffs are also entitled individually to any increase that may be awarded to retired staff of the Appellant. This is in line with Federal Government Policy on retired officers.

Both parties are bound by Exhibits P KU 3 and 6. I therefore resolve this issue in favour of the Respondents.

On issue 4 which reads “whether the learned trial Judge’s findings were derived from the evidence adduced at the trial and are consistent with probable evidence properly evaluated”-

The Appellant argued that a declaratory order must be supported by evidence and hard fact.

The Appellant is of the view that failure of the learned Judge to properly evaluate the evidence before him led to a miscarriage of justice. He argued that the court ought to have expunged the other document tendered as part of collective agreement and pension benefit calculated on the basis of emolument.

The Respondents submitted that the learned trial Judge can not in view of the totality of the evidence be faulted. He argued that where a party seeks to persuade the court to accept a certain state of affairs it must prove it. He referred to Exhibit PKU 10 and Exhibit PKU 7 which were tendered without objection. He relied on ABDULLAHI V. HASHIDU (1999) 4 NWLR Part 600 Page 638 at 646.

The Respondent submitted that issue 5 together with argument therein should be struck out. He relied on AKPAN v. UDOH (2008) 3 NWLR Part 1075 page 59 at 602. For not arising from ground of appeal.

In A.N.P.P. V. ARGUNGU (2009) 17 NWLR pt 171, 445, the court held that the main purpose of formulation of issue for determination is to enable the parties to narrow issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity.

Issue 5 as distilled by the Appellant is not covered by any ground therefore the issue and arguments canvassed under same are incompetent.

See AGALU V. EGWAWE (2910) 1 All FWLR Pt 532 1609 at 1634; where it was held by the Supreme Court that an appellate court can only hear and decide on issues raised on the grounds of appeal filed. The Respondent in his reply is of the view that issue 5 for determination is not derived from any of the 8 grounds of appeal.

In the circumstance the Judgment of the lower court delivered on 24/1/08 is hereby affirmed.

The appeal is dismissed and I award a cost of N30,000 to the Respondents.

AMIRU SANUSI, J.C.A.: The judgment of my learned brother Shoremi, JCA just rendered was made available to me before now. His Lordship had thoroughly addressed the issues and points raised by parties’ learned counsel. The reasoning ant resolution of the issues and points re agreed ad endorsed by me and I adopt them as mine. Having also find the appeal unmeritorious, I also dismiss same and affirm the judgment of the lower court delivered on 24/1/2008. I also award N30,000.00 costs to the respondent herein.

to the respondents herein.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

Appearances

K.E. Enehikhare Esq with Mrs. M. E. Otoiede Esq.For Appellant

AND

S.S. Ebesunun Esq.For Respondent