ABDULMALEEQ SULEIMAN & ORS v. ABUBAKAR TAFAWA BALEWA UNIVERSITY, BAUCHI & ANOR
(2019)LCN/12677(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
CA/A/328/2015
RATIO
APPEAL: WHAT THE GROUND OF APPEAL REPRESENT
“…BAMIDELE PATRICK V THE STATE (2018) 16 NWLR (PART 1645) 263 AT 274H per AUGIE, JSC who said:- ‘It is trite law that grounds of appeal represent the complaints of an appellant against the decision of a Court, and the appellant, who raised the grounds of appeal, is at liberty to abandon any of the grounds on which he predicates his appeal or withdraw any ground – Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 SC. Alternatively, where an appellant does not formulate an issue in his brief to cover a ground of appeal, that ground of appeal would be deemed to be abandoned, even where arguments have been proffered on same.'” PER PETER OLABISI IGE, J.C.A.
APPEAL: FINDINGS BY THE COURT WHEN THERE IS NO APPEAL
“The Appellants cannot wriggle out of the aforesaid findings on page 508 of the record of appeal. See SENATOR AYOGU EZE VS PDP (2019) 1 NWLR (PART 1652) 1 AT 18 G – H per M. D. MUHAMMAD, JSC who said:- ‘It is also trite that a finding of a Court against which there is no appeal remains binding and conclusive. In the instant case, the trial Court’s finding that appellant’s suit is not founded on two primary elections, which finding has not been appealed against at the lower Court, persists even in this Court. It follows that it is only the trial Court’s finding that appellant’s action rests on a single primary election of the 1st respondent as reviewed by the lower Court that forms the subject matter of the instant appeal. See Dabup v. Kolo (1993) LPELR-905 (SC); (1993) 9 NWLR (Pt. 317) 254 and Awodi & Anor v. Ajagbe (2014) LPELR-24219 (SC), (2015) 3 NWLR (Pt. 1447) 478.'” PER PETER OLABISI IGE, J.C.A.
EVIDENCE: BURDEN OF PROOF
“The burden of proof is the obligation of a party in a trial to produce the evidence that will prove the claims they have made against other party. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets the burden, the burden of proof switches to the other side. The burden of proof shall be discharged on the balance of probabilities or preponderance of evidence. See Section 134 of the Evidence Act. This means that a party has to persuade the Court that his version of the facts is more probable than that of his opponent. His case must be such that the Court after weighing the evidence of both parties, must find a preponderance of evidence in his favour. It must outweigh the evidence of the opponent.” PER PETER OLABISI IGE, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. ABDULMALEEQ SULEIMAN
2. MAKAFAN S. ALIYU
3. BELLO O. JIBRIN
4. OLADEJI JIMOH AKINTOLA
5. SARATU AHMED DANJUMA
6. SAIDU JAHUN ABUBAKAR
7. MAL. IBRAHIM M. BIRMA
8. AUDU ADAMS TAIYE
9. AUDU MAHN
10. ISA SAIDU GWARAM
11. VASE YAKUBU YILKAT
12. OLOJEDE ABIODUN ISAIAH
13. ABUBAKAR BALA MUH’D
14. MUHAMMAD UMAR BARDE
15. AGNES LUTHER IBRAHIM
16. NWIGWE IFEOMA BETTY
17. ENEKHAI KATE (MRS.)
18. AGBOOLA ABDURRAFIU
19. LINUS ENECHE
20. HAMMA BUBA
21. HYACINTH C. UGWUOKE
22. SULEIMAN SALISU M.
23. AZUMI ALHASSAN (MRS.)
24. MUKHTAR IBRAHIM RILWAN
25. MADAM PETER
26. SANI ALIYU
27. YUSUF ISA BAITA
28. IBRAHIM ABDULLAHI
29. LARABA JOHN
30. AHMED IBRAHIM
30. HAMZA MADAKI
31. MUSTAPHA LAWAL DABO
32. LAWAL AHMED
33. EUCHARIA ONUOHA
34. TANKO GEORGE K.
35. M.A. USMAN (MRS.)
36. YAKUBU SULEIMAN DALLAT
37. BELLO LAWI MOHAMMED
38. BELLO IBRAHIM KHALI Appellant(s)
AND
1. ABUBAKAR TAFAWA BALEWA UNIVERSITY, BAUCHI
2. THE MANAGEMENT BOARD, INTERNATIONAL SECONDARY SCHOOL, BAUCHI Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the decision of the National Industrial Court delivered by Hon. Justice J. T. Agbadu – Fishim on 6th December, 2013, dismissing the appellants’ suit for lack of merit.
The appellants as claimants had sued at the said Court vide the General form of complaint dated and filed on 20th April, 2011 seeking the following reliefs:-
“a) A declaration that from the totality of the facts and circumstance of this case the claimants are regular employees of the University whose salaries are drawn from or paid by the Federal Government of Nigeria through National Universities Commission (NUC) and their employment is consistent with other senior staff of the University.
b) A declaration that being staff whose emoluments are paid by the Federal Government of Nigeria through National Universities Commission (NUC), they are entitled to the whole amount being paid or remitted to the University and not some part or a fraction of it in whatever guise as is presently being perpetrated against them by the Defendants.
c) A declaration that since pension deductions are done at source by the Federal Government and forwarded to their individual pension administrators by PENCOM, it is wrong to deduct any other sum as pension a second time from their earnings as is presently being done by the Defendants and thus the second deduction is illegal, null and void and should be stopped forth with.
d) An order directing an immediate refund of the second pension deduction which the defendants have been making from the emoluments of the claimants’ salaries from 1999 to date, especially that these deductions have never been remitted to any pension administrator but has been illegally kept in an account with ZENITH Bank PLC BAUCHI, in the name of 1SS pension account.
e) An order directing an immediate refund of the sum of N167,916,462.00 (One Hundred and Sixty Seven Million, Nine Hundred and Sixteen Thousand, Four Hundred and Sixty-Two Naira) only, being the total salary under payment of the claimants by the Defendants from May, 2000 – 31st December, 2011.
f) 10% interest on all sums accruing to the claimants from the date of the judgment till final liquidation.
g) An order directing the Defendants to continue the payment of the claimants who are still in the employment of the Defendants as the regular or mainstream staff of the University, since their salaries are remitted to her by the Federal Government, through the National Universities Commission
h) The cost and expenses of this suit including solicitor’s fees paid by the claimants to undertake this suit.
Pleadings were duly exchanged and the matter proceeded to trial. After the addresses of learned counsel to the parties, the learned trial Judge delivered a considered Judgment on 6th December, 2013 and found against the appellant as follows:
“From the above findings, I am of the view that the claimants willingly accepted to work as staff of the 1st Defendant’s International Secondary School, Bauchi and to be paid salary on Grade Level (GL) structure even though they were initially employed by the 1st Defendant and paid salary on the Consolidated Tertiary Institution salary structure. The claimants were given adequate notice and opportunity to resign their appointment if the said conditions of service were not acceptable to them, an option which was utilized by some of the claimants. I, therefore hold that the claimants have exercised the option of working for the 2nd Defendant as shown in their individual letters of acceptance to work with the 2nd defendant they are not the regular employees of the 1st defendant and not entitled to the sum of N167,916,562.00 (One Hundred and Sixty Seven Million, Nine Hundred and Sixteen Thousand, Five Hundred and Sixty-Two Naira) alleged to be salary under payment from May, 2000 to 31st December, 2011, having accepted to be paid on GL level as opposed to CONTISS salary structure”.
The Appellant was aggrieved by the Judgment and has now vide her Notice of Appeal dated the 20th day of February, 2015 and filed same day appealed to this Court on five grounds which without their particulars are as follows:
1. GROUND ONE
The learned trial judge erred in law when he held that “by the above letter, the 1st defendant’s International Secondary School, Bauchi was approved and established as a private Secondary School of the 1st defendant and this error occasioned a gross miscarriage of justice.
2. GROUND TWO
The learned trial judge erred in law when he held as follows:
“It is my humble view that since a competent Court of co-ordinate status with this Court has already pronounced that the international secondary school is a private school and there is no evidence that such decision has been up turned by the Court of appeal. I cannot make any pronouncement as regards the status of the International Secondary School. Whether the judgment of the Federal High Court is correct or not is not for me to determine as I cannot sit on appeal on the judgment of my learned brother of the Federal High Court” and this error occasioned a gross miscarriage of justice.
3. GROUND THREE
The learned trial judge erred in law when he held that “I am of the view that the claimants willingly accepted to work as staff of the 1st Defendants International Secondary School, Bauchi and to be paid salary on Grade level (GL) structure even though they were initially employed by the 1st Defendant and paid on the consolidated Tertiary Institution Salary Structure. The claimants were given adequate notice and opportunity to resign their appointment if the said conditions of service were not acceptable to them an option which was utilized by some of the claimants” and this error occasioned a gross miscarriage of justice.
4 GROUND FOUR
The learned trial judge erred in law when he held thus: “I therefore, hold that the claimants have exercised the option to work for the 2nd defendant as shown in their individual letters of acceptance to work with the 2nd Defendant they are not regular employees of the 1st defendant and not entitled to the sum of N167,916,462.00 (One Hundred and Sixty Seven Million, Nine Hundred and Sixteen Thousand, Four Hundred and Sixty-Two Naira) Only, alleged to be salary under payment from May, 2000 to 31st December, 2011, having accepted to be paid on GL level as opposed to CONTISS salary structure” and this error occasioned a grave miscarriage of justice.
5. GROUND FIVE
The learned trial judge erred in law when he held that “I am of the humble view that the claimants have not substantiated their claim that they are entitled to refund of pension deduction from their salaries” and this error occasioned a gross miscarriage of justice.
The Appellants’ Brief of Argument dated 13th March 2017 was filed on the same day. The respondents filed their respondents’ Brief dated 26th May, 2017 on 31st May 2017. It was deemed filed on 22nd March, 2018. The Appellants’ Reply Brief dated 15th November, 2017 was filed on 21st March, 2018 but deemed properly filed on 22nd March, 2018
The learned counsel to the Appellants formulated three issues for determination viz:-
1. Whether the respondents had a valid statement of defence and evidence before the trial Court and the trial Court was right to have relied on the pleadings and evidence of the respondents which he had earlier struck out in coming to his decision? (Distilled from grounds 1, 2, and 3 of the grounds of appeal).
2. Whether there is any evidence on record that the Appellants accepted to work with the respondents on the grade level salary structure instead of the Consolidated Tertiary Institutions Salary Structure applicable to all regular staff of the Abubakar Tafawa Balewa University, Bauchi (Ground 4 of the grounds of appeal).
3. Whether or not the Appellants proved their case and were entitled to their relief’s before the Court. (Ground 5 of the grounds of appeal.
The learned counsel to the respondent adopted the issues as formulated by the appellants.
Therefore, the appeal can be determined on the issues formulated by Appellant’s learned counsel. I will take the seriatim.
Issue 1
“Whether the respondents had a valid statement of defence and evidence before the trial Court and the trial Court was right to have relied on the pleadings and evidence of the Respondents which he had earlier struck out in coming to his decision? (Distilled from Grounds 1, 2, and 3 of the grounds of appeal)”.
The learned counsel to the Appellant submits that the Respondents filed a statement of defence which was struck out upon their own application on 02/10/2013. That the said statement of defence had attached to it the witness statements on oath of the Respondents’ witnesses and the documents they sought to rely upon in their defence.
That since the statement of defence filed on 16/10/2012 has been struck out, the oral testimony of the witnesses and the documents tendered in evidence based on the said statement of defence are null and void and of no effect at the trial. He relied on CHUKWUMA VS NWOYE (2011) ALL FWLR (PART 553) 1942 at 1973.
That the respondents filed a new statement of defence on 12/10/2013 which had no document or witness statement attached to it. Thus the new statement of defense contravened the provisions of the National Industrial Court Rules 2007 and was therefore incompetent.
That assuming but without conceding that the said statement of defence is not incompetent, it will still be moribund because no witness was called to testify nor was any document tendered in respect of it. He cited the following cases:-
1. S.B. PLC VS D.V NIG. LTD (2014) ALL FWLR (PT. 578) 945 AT 970 PARAS E-B.
2. AJANAKU VS OSUMA (2014) ALL FWLR (PT. 727) 695 at 735 PARAS E-G . He urged this Court to resolve this issue in favour of the Appellants.
In response to the above submissions, the learned counsel to the respondents referred the Court to page 486 of the record containing proceedings of Court dated 2nd day of October, 2013. That the respondents’ statement of defence dated 12th of July, 2013 was deemed filed on the said date.
That the provision of Order 9 Rule 1 of the Rules of the National Industrial Court, 2007 does not make it mandatory for the respondents to file any witness statement on oath. Thus the striking out of the respondents’ statement of defence did not mean that their witnesses’ statement on oath were also struck out.
That the witness statement on oath and the exhibits have already been adopted and tendered and these documents by virtue of being adopted and tendered separately form part and parcel of the case of the respondents and the record of the lower Court.
That the lower Court is entitled to look at them in an attempt to resolve the issues before it. He cited ODU V JARIGBE (2017) 4 NWLR (pt. 1556) 445 at 458.
That assuming but without conceding that the respondents did not front load the documents they relied on before the lower Court, that there is no provision in the Evidence Act that states that a document which is not frontloaded is inadmissible. He relied on DUNALIN INV LTD vs. BCL PLC (2016) 18 NWLR (PT. 1544) 262 at 278. That the authority of CHUKWUMA VS NWOYE cited by learned counsel to the Appellants is irrelevant as it applies to a situation where a witness statement on oath is struck out.
That assuming but without conceding that the respondents were in error in filing their statement of defence without exhibiting their witnesses statements on oath, list of witnesses and copies of documents to be relied upon at the trial, the learned counsel to the appellants conceded to the proceedings without objection. Having conceded, the appellants cannot be heard to now complain. He cited BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1 at 67. He urged this Court to resolve this issue against the appellants.
In the Appellants Reply Brief to the Respondents’ Brief of Argument, the learned counsel to the Appellants’ states that the position of the law is clear and indeed trite, that connivance of parties cannot confer jurisdiction on a Court where none exists. That the incompetence of the Respondents’ statement of defence before the Court is not a matter of procedural irregularity which can be waived. That it is a matter of fundamental defect in the processes filed which did not answer the case of the appellants before the trial Court. He relied on (1) P.W. RESOURCES LTD. V KPORAH (2012) ALL FWLR (PART 657) 805 AT 819 per EKO, JCA (2) OKADIGBO V. EMEKA (2012) ALL FWLR (PART 623) 1891, Paras F.G.
The Appellant’s Reply Brief is not different from the arguments canvassed in the Appellants Brief of Argument.
Pursuant to Order 19 Rule 5 (1) of the Court of Appeal Rules 2016, an Appellant’s Reply Brief of Argument is not an avenue or gateway to a re-argument of the arguments contained in the main brief of the Appellant. An Appellant Reply must be targeted at replying to new points particularly on law as may be raised in a Respondent’s Brief of Argument. It will amount to an abuse of Court process for an Appellant to indulge in rearguing or re adjusting the submissions in the main brief. See:HON. JAMES ABIODUN FALEKE V. INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 115 per KEKERE-EKUN, JSC who said:-
“As noted in the introductory part of this judgment, learned senior counsel for the appellant filed reply briefs in respect of the 1st and 2nd respondents’ briefs respectively. However, it must be reiterated here that the purpose of a reply brief is to address fresh points raised in a respondent’s brief of argument. It is not for the appellant to raise fresh issues or to re-argue the appeal. See: M. LTD V. WOERMANN – LINE (2009) 13 NWLR (Pt. 1157) 149); HARKA AIR SERVICES (NIG.) LTD V. KEAZOR ESQ. (2011) LPELR-1353 (SC), 2011 13 NWLR (Pt. 1264) 320. I have considered the appellant’s replies to the arguments of learned senior counsel for the 1st and 2nd respondents. The replies in my view have largely re-canvassed the arguments in the appellant’s brief. No new issue raised by the respondents have been brought to the Courts attention. The copious submissions therein are accordingly discountenanced”.
Appellant’s reply brief in respect of respondents’ brief of argument is hereby discountenanced.
“The rationale of frontloading of witness statements and document pleaded by a plaintiff, or which the plaintiff relies upon in the proof of his case, is designed to expedite trial by giving the defendant the over view of the case he has to contend with and to provoke an informed decision as to whether it is prudent to contest the case. Conversely the same applies to the plaintiff, as the plaintiff having had the benefit of the over view of the defendant’s case, from the witness statements and documents exhibited by the defendant, would be able to make an informed decision as to whether or not the case he has instituted is worth pursuing”.
See BUHARI & ORS V HADDY SMART (NIG) LTD & ANOR (2009) LPELR-8362 (CA). Moreover in EROKWU & ANOR V EROKWU (2016) LPELR – 41515 (CA) it was held that:-
“The concept of frontloading was introduced into our civil proceedings to facilitate speedy trials of actions. Parties are to frontload witnesses statements on oath and those witnesses are themselves subject to cross examination during the trial. Usually a witness adopts the statement already filed as his own being led during examination in chief. This is to cut short the time spent leading a witness.”
In any event the Appellants have waived their right to complain about any irregularity in procedure and manner in which the Statement of Defence of Respondents were brought into the proceedings.
It is pertinent to reproduce the trial Court proceeding of Wednesday 2nd October, 2013.
1st, 4th, 11th 13th, 19th, and 24th claimants present.
Other claimants absent
Counsels.
M. A. Tsuwa for all the claimants
A.A Accanny for the respondents.
Accanny: We have a motion on notice dated 12/7/2013 for extension of time for the applicants to file their statement of defence out of time and as deeming order to that effect. I move in terms of the motion paper.
Tsuwa: I am not opposing
Court: Order as prayed.”
From the foregoing proceedings, the trial Court granted an order for extension of time for the applicants to file their statement of defence out of time as well as a deeming order.
Moreover, Order 3 Rule 7 of the National Industrial Court Rules 2007 provides:-
“Where a claimant fails to comply with Rule 2, 3, 4 or 5 of this order, as the case may be, his or her originating process shall not be accepted for filing by the registrar.”
Order 5 Rule 1 of the same rules provides:
(1) Failure to comply with any of these Rules may be treated as an irregularity and the Court may give direction as it thinks fit.
The learned trial Judge rightly granted leave to the defendants to file their statement of defence dated 12-07-13 out of time.
In any event Issue one cannot be situate in any of grounds 2 and 3 of the Notice and Grounds of Appeal filed by the Appellant. The grouse of the Appellant against the judgment in Ground 1 is the holding of the lower Court to the effect that the letter from Bauchi State Ministry of Education shows that the 1st Defendant’s International Secondary School is a private secondary school of the 1st Defendant.
The complaint articulated in Ground two of the Notice and Grounds of Appeal filed stated the learned trial Judge was wrong in holding that since a Federal High Court has pronounced that the said International Secondary School of 1st Respondent is a private international Secondary School he has no appellate jurisdiction over the judgment of his learned brother to decide otherwise.
Ground three of the Appeal challenged the decision of lower Court which held that the Claimants now Appellant willingly accepted to work as Staff of 2nd Respondent and thus accepted to be paid on Grade Level (G.L.) Salary Structure even though they were initially employed by the 1st Defendant and paid on the Consolidated Tertiary Institution Salary Structure and that they had opportunity to resign if the (G.L.) Salary Structure was not acceptable to the Appellants.
The settled position of the law is that an issue for determination must be distilled from the ground or grounds of appeal contained in the Notice of Appeal. Any extraneous question formulated outside the precincts of a Notice of Appeal will be moribund and liable to be struck out. See:- 1. CHIEF E. E. ETA & ANOR V ELDER CHIEF OKON H. A. DAZIE(2013) 9 NWLR (PART 1359) 248 AT 262 E – F per NGWUTA, J5C who said:-
“Moreover, of the three issues formulated by the respondent, only the second issue can be traced to the appellant’s grounds of appeal. Issues one and three, particularly issue one, appear to have come from the blues. Any issue not distilled from the ground or grounds of appeal and argument thereon, go to no issue in the appeal and are liable to be struck out. (See Osinupebi v. Saibu (1982) 7 SC 104; ALI v. CBN. (1997) 4 NWLR (Pt. 498) 192.
Issues 1 and 3 in the respondent’s brief are hereby struck out as irrelevant in the determination of the appeal.”
2. ADDAX PETROLEUM DEVELOPMENT (NIG) LTD VS CHIEF J. L. E. DUKE (2010) 8 NWLR (PART 1196) 278 AT 295 D – E per OMOKRI, JCA;
3. WILLIAMS ANGADI VS PDP & ORS (2018) 15 NWLR (PART 1641) 1 AT 23 F per BAGE, JSC.
I cannot fathom how issue one can be related to grounds 1, 2 and 3 of the Appellant’s Notice of Appeal. For ease of reference the issue is reproduced again:
“Whether the Respondents had a valid statement of defence and evidence before the trial Court and the right to have relied on the pleadings and evidence of the Respondents which had earlier struck out in coming to his decision? (Distilled from grounds 1, 2 and 3 of the Grounds of Appeal) sic.”
The said grounds of appeal had earlier been reproduced in this judgment. It is only in ground one particulars B and C that the Appellant was complaining of failure to sign Statement of Defence and not a Statement of Defence or Pleadings that had been struck out.
A ground of appeal is not found in particulars. Particulars only serve to elucidate on grounds of appeal to point out the error of law or misdirection or blunder committed by a Court which judgment is being appealed.
The Appellant therefore failed to formulate any issues pertaining to grounds 1, 2 and 3 of the Notice of Appeal as the issue formulated to cover the three grounds of appeal flew off target and has no bearing to the said grounds of appeal. The effect is that no issue or any valid issue has been formulated in respect of those grounds. The said grounds 1, 2 and 3 of the Appellant’s appeal are hereby deemed as abandoned by the Appellant. The relevant issue formulated concerning the said three grounds of appeal together with arguments thereon are hereby struck out and discountenanced. See BAMIDELE PATRICK V THE STATE (2018) 16 NWLR (PART 1645) 263 AT 274H per AUGIE, JSC who said:-
“It is trite law that grounds of appeal represent the complaints of an appellant against the decision of a Court, and the appellant, who raised the grounds of appeal, is at liberty to abandon any of the grounds on which he predicates his appeal or withdraw any ground – Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 SC. Alternatively, where an appellant does not formulate an issue in his brief to cover a ground of appeal, that ground of appeal would be deemed to be abandoned, even where arguments have been proffered on same.”
Again what Ground three of the Appeal challenged is the decision of lower Court which held that the claimants willingly accepted to work as Staff of the 1st Defendants International Secondary School, Bauchi and to be paid salary on Grade Level (G.L.) Structure even though they were initially employed by the 1st Defendant and paid on the Consolidated Tertiary Institution Salary Structure.
Issue 1 is resolved against the Appellants.
ISSUE TWO
“Whether there is any evidence on record that the Appellants accepted to work with the Respondents on the grade level salary structure instead of the Consolidated Tertiary Institutions Salary Structure applicable to all regular staff of the Abubakar Tafawa Balewa University, Bauchi (Ground 4 of the grounds of appeal)”.
The learned counsel to the appellant stated that there is no evidence on record to show that the Appellants accepted to work with the respondents on the grade level salary structure.
That pages 83-100 of the records of Appeal contain the pay slips or advices of the appellants wherein it is clearly indicated that the salary structure received by them is the Consolidated Tertiary Institution Salary Structure (CONTISS) and not the grade salary structure.
That the names of the Appellants as staff of the 1st respondent who were on the CONTISS are contained in the list of the staff pension scheme. See pages 55-82 of the records.
That in the interpretation of documents, the ordinary or literal meaning should be ascribed to clear and unambiguous words. He cited and relied on (1) AKANMODE VS DINO (2009) ALL FWLR (part 471) 929 at 949, paras F-G; (2) INYANG VS REGISTERED TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (2006) ALL FWLR (PART 314) 278 at 295 para .B.
That whereas the Appellants tendered the above referred exhibits in evidence that indeed they were receiving and are entitled to continue to receive their salaries and allowances on the CONTISS, the respondents tendered nothing since their earlier statements of defence dated and filed on 16/10/2012 which contained the witness statement on oath of their witnesses and documents was withdrawn and struck out on 02-10-2013 and they filed a new statement or document attached to it. That the case of the Appellants was unchallenged since the extant statements of defence of the respondents had no witness statements on oath or any document attached to it, neither did they call any witness in proof of the averments contained therein.
That the learned trial Judge in reaching his decision relied heavily on the evidence of the respondents’ witnesses and the documents attached to the earlier statements of defence which have been withdrawn and struck out. He urged this Court to allow the appeal and resolve this issue in favor of the Appellants.
In response learned counsel to the respondents submit that the various letters of the claimants accepting the change of status form being employer of the 1st defendant to employees of the 2nd defendant were admitted in evidence on 17-4-2013. That the appellants did not challenge or discredit the testimony of the witness under cross examination. That based on the above submissions, the appellants have accepted to work with the respondents, particularly the 2nd respondent on the grade level salary structure. That the wording of the letters of acceptance are clear and unambiguous. That the Court is urged to give them their ordinary meaning. He cited DANTATA JNR V. MOHAMMED (2012) 14 NWLR (PART 1319) 122 AT 127 rr.1 & 2.
That by the order of the Honorable Court dated 2nd October, 2013 the respondents have all the documents stipulated in Order 9 Rule 1 before the lower Court. That the list of witnesses and their written depositions were never withdrawn or struck out. On the contrary, they were adopted as borne out by the records of the lower Court dated 17-4-2013 at pages 481-483 thereof. He urged his Court to resolve this issue against the appellants.
I agree with the submissions of the learned Counsel to the Respondents as the findings of the learned trial Judge are amply supported by the oral and documentary evidence before the lower Court. The learned trial Judge made explicit and extensive findings on all issues and facts relating to issue 2 as formulated by Appellant on page 508 of the Record of Appeal which is reproduced in extensio thus:-
“Secondly, by its memo addressed to all the staff of the 1st defendant’s International Secondary School dated 13th August, 2009 with reference No. ATBU/ISS/ADM/6711 the 2nd defendant informed them that the governing Council of the 1st defendant has directed the 1st defendant not to include the staff of the 1st defendant’s International Secondary School in the 2010 University’s budget and that the staff of the secondary school will not be paid the Consolidated Tertiary Institution Salary Structure (CONTISS) of from January, 2010 as the 1st defendant’s secondary school will henceforth generate funds from school fees and levies to pay the Grade Level (GL) Structure as contained in the International Secondary School (ISS) Conditions of Service.
The 2nd defendant therefore requested all staff of the 1st defendant International School to indicate in writing whether or not they accept the condition of service governing the staff of the secondary school on or before 1st October, 2009 with a proviso that if a staff fails to accept the condition his/her retirement entitlements would be worked out accordingly. Consequently, the claimants in their respective letters written at various dates in September, 2009 accepted to work as employees of the 1st defendant’s International School and to accept the condition of service of the said school which among other provisions provided that the claimants will be paid based on Grade Level (GL) salary structure.
It is in line with the 2nd defendant’s conversion to Grade Level that it published in the Daily Trust Newspaper on 10th September, 2009 seeking for application from qualified candidates to fill various vacancies in the International Secondary School located in Abubakar Tafawa Balewa University, Bauchi on the Grade Level (GL) Salary Scheme.
The said publication was made by 2nd defendant and not the 1st defendant. There is therefore, no doubt that the 2nd defendant moved from the CONTISS Salary Scheme to Grade Level (a) Scheme and the claimants accepted in writing to be paid on GL Scheme. It follows that the claimants cannot at this point deny their acceptance of the GL Scheme as they cannot be allowed to approbate and reprobate at the same time. The claimants who accepted the said conditions of service are 1st to 13th, 15th, 17th to 34th, 36th to 37th, 40th to 41st, 44th, 46th to 47th, 49th, 54th, 71st and 75th claimants.
Some of the claimants who could not accept the condition of service resigned their appointments forthwith. Even some of those who accepted the said conditions of service of the International Secondary School subsequently resigned or withdrew their services which included the 56th, 57th, 60th, 62nd, 64th and 66th claimants. This Court also found that prior to the claimants’ acceptance of the condition of service of the International Secondary School, they had enjoyed salary under the Consolidated Tertiary Institutions Salary Structure (CONTISS). It is also in evidence that all the letters written by the claimants accepting the conditions of service of the defendant’s International Secondary School were addressed to the Chairman, International Secondary School Management Board, Abubakar Tafawa Balewa University, Bauchi through the Principal of the School. It is also in evidence that in a memo from the Registrar of defendant dated 14th and 15th July, 2009 he informed the claimants of the position of the Federal Ministry of Education that staff of university schools whether academic or non-academic are not part of the core staff of Federal Tertiary Institutions, therefore the salaries and entitlements to those staff are to be determined and paid by the Management Committee of the Staff School. The claimants did not establish in evidence that they were threatened or compelled to accept the offer.”
Most of the submissions of Appellants’ learned Counsel did not address issue 2 formulated, There is nothing on record to show that all documents tendered by the Respondents to dislodge the case postulated in the Appellants’ complaints and Statement of Claim were objected to. Those who testified for the Appellants even made fatal admissions that Claimants who opted to work for 2nd Defendant now 2nd Respondent would be delisted as employees of 1st Respondent. That the letters of Appointments given to the Appellants made it clear they were Staff of 2nd Respondent and Claimants were duly informed by the 1st Respondent that the Appellants would no longer be paid the Consolidated Tertiary Institution Salary Structure (CONTISS) as from January, 2010. See pages 236 -237 of the record containing Letter/Memo issued out of the office of Registrar of 1st Respondent on 14/7/2009 and Letter emanating from the office of Chairman of 2nd Respondent to all Staff of 2nd Respondent contained on pages 238 -239 of the Record of Appeal listing the names of the Appellants as persons affected thereby.
“The letter contained on page 241 of the record spoke in the same vein. They were all adopted before the lower Court and the lower Court adequately evaluated the oral and documentary evidence on this aspect of Appellants’ case on page 508 of the record herein-before reproduced.
There was no appeal on the findings of the lower Court which no doubt disproved all the pleaded case of the Appellants and the said findings remained unappealed and are binding on the Appellants. The Appellants cannot wriggle out of the aforesaid findings on page 508 of the record of appeal. See SENATOR AYOGU EZE VS PDP (2019) 1 NWLR (PART 1652) 1 AT 18 G – H per M. D. MUHAMMAD, JSC who said:-
“It is also trite that a finding of a Court against which there is no appeal remains binding and conclusive. In the instant case, the trial Court’s finding that appellant’s suit is not founded on two primary elections, which finding has not been appealed against at the lower Court, persists even in this Court. It follows that it is only the trial Court’s finding that appellant’s action rests on a single primary election of the 1st respondent as reviewed by the lower Court that forms the subject matter of the instant appeal. See Dabup v. Kolo (1993) LPELR-905 (SC); (1993) 9 NWLR (Pt. 317) 254 and Awodi & Anor v. Ajagbe (2014) LPELR-24219 (SC), (2015) 3 NWLR (Pt. 1447) 478.”
Issue two is resolved against the Appellant.
ISSUE THREE
“Whether or not the Appellants proved their case and were entitled to their relief’s before the Court. (Ground 5 of the grounds of appeal).”
Learned counsel to the appellant submits that the evidence presented by the Appellants by far outweighs that of the Respondents and the Appellants were entitled to have had judgment in their favour since the Respondents do not have any evidence properly so called before the Court.
That the proposal for the establishment of the school conceived… that the salary and emoluments of the staff to be employed was to be based on the EUS5 (ELONGATED UNIVERSITY SALARY STRUCTURE) which was the salary structure all university staff whose salaries and emoluments were being paid or drawn from the Federal Government coffers enjoyed.
That from inception, the University conceived that the School would be a public institution to be funded with funds derived from the Federal Government through the National Universities Commission.
That the Appellants proved by evidence that they are staff of the University and their employment enjoys statutory flavour. He relied onCBN VS. IGWILO (2007) All FWLR (PART 379) 1385 at 1413, Paras B-C.
That the Appellants have never been intended to be staff of a private institution to be remunerated differently from the other regular senior and/or junior staff of the University.
That having employed the Appellant as staff of the university as several document on record have shown, the university can only deal with the appellants in accordance with the Act establishing the university.
That the Respondents cannot alter the terms of the Appellants employment at will because the law has since been settled that parties are bound by the terms of contract they enter into either expressly or by conduct. They cited and relied on:
1. IFETA VS. S.P.D.C. OF NIG. LTD. (2006) ALL FWLR (PART 314) 305 AT 319 PAPAS E-F.
2. UNITY BANK PLC V5. ABIOLA (2005) ALL FWLR (PART 452) 1082 AT 1109, PARA A.
3. CHRISTABEN GROUP LTD. VS. ONI (2010) ALL FWLR (PART 504) 1439 AT 1462-1463, PAPAS. H-B.
That the Respondents having employed the Appellants on the EUSS salary structure as can be seen in the employment letters of Mallam Ibrahim Mohammed Birma, Mrs. A. M. Usman, Mallam Yusuf Adamu Jahun, Mallam Yakubu Garbo Gital, Miss Agnes Amos, Mallam Adamu Madi and Mallam Muktah Ibrahim Rilwani which was the salary structure enjoyed by all regular and core staff of the university. It means that the Appellants were intended to be part of the regular and are staff of the university to be enjoying the same salaries and emoluments of all regular and core staff of the university.
That the employment of the Appellants can only be altered in line with the University Act. That the employment of the Appellants cannot be altered by the Respondents by the letter dated 13th day of August, 2009, addressed to them.
He urged this Court to resolve this issue in the Appellants’ favour.
In response, learned counsel to the respondents, submits that the Appellants are staff of a private school which disqualifies them from claiming that they are employees of the Federal Government. That the Federal High Court Bauchi vides its Judgment dated 31/11/12 has pronounced on the status of the International Secondary School as a private School.
That the Appellants have made the 2nd Respondent believe that they are staff of the 2nd Respondent and having benefited financially from the 2nd Respondent. They cited:
– ABOLARIN VS. OGUNDELE (2012) 10 NWLR (PT 1308) 253 AT 261 -262 R.10
– CHUKUMA V5. IFELOYE (2008) 18 NWLR (PT. 1118) 204 AT 211 R.6
That the claim of N167,916,462.00 is a claim for special damages and the law enjoins the appellants to specially plead and strictly prove their claim. They cited:
1. O.M.T CO. LTD VS. IMAFIDON (2012) 4 NWLR (PT. 1290) 332 AT 334 2.2
2. TAYLOR VS. OGHENEOVO (2012) 13 NWLR (PT. 1316) 46 AT 48- 49 OR 1-4.
That the appellants have failed to demonstrate before the lower Court that they are entitled to the special damages claimed.
That the appellants have failed woefully to prove that the deductions allegedly made by PENCOM were deductions made from their salaries.
That parties are at liberty to alter their terms of employment and that was what happened when the appellants agreed in writing to work under the 2nd Respondent.
That the evidence adduced by the appellants has been successfully and effectively challenged.
He urged this Court to resolve this issue against the appellant.
The burden of proof is the obligation of a party in a trial to produce the evidence that will prove the claims they have made against other party. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets the burden, the burden of proof switches to the other side.
The burden of proof shall be discharged on the balance of probabilities or preponderance of evidence. See Section 134 of the Evidence Act.
This means that a party has to persuade the Court that his version of the facts is more probable than that of his opponent. His case must be such that the Court after weighing the evidence of both parties, must find a preponderance of evidence in his favour. It must outweigh the evidence of the opponent.
I am of the solemn view that the findings of the learned trial Judge to the effect that Claimants failed to substantiate their claims and entitlements to a refund of pension deductions from their salaries are well founded having regard to the findings of this Court under issues 1 and 2 herein.
Issue 3 is also resolved against the Appellants.
In the result the Appellants’ appeal lacks merits and it is dismissed.
The judgment of the National Industrial Court of Nigeria delivered by HON. JUSTICE J. J. A. FISHIM on 16th day of December, 2013 is hereby affirmed.
There will be no Order as to costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the leading judgment of my learned brother Ige JCA, just delivered. I agree that this appeal has no merit and I dismiss it.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I am in full agreement with the reasoning and conclusion and orders reached by my learned brother.
Appearances:
M.A. Tsuwa, Esq. with him, D.A. AdedejiFor Appellant(s)
N. L. Sumi with him, D. H. Samaila, Esq.For Respondent(s)
