NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR v. DR. DAN IWOENE EFEBO
(2019)LCN/13060(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2019
CA/A/33/2018
RATIO
WHAT A PARTY WHO CLAIMS THE DECISION OF THE COURT IS PERVERSE FOR LACK OF ADEQUATE OR PROPER EVALUATION OF EVIDENCE MUST PROVE
The law is settled that an Appellant who complains that the decision of the Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of opportunity of seeing the witnesses testified before him. He must show that there was misapplication of oral and documentary evidence placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and re-evaluate the oral and documentary evidence.
1.DR. SODA OGUNDALU VS. CHIEF A.E.O. MACJOB (2015) 3 SCNJ 113 at 124 per RHODES VIVOUR, JSC,
2. O A. AKINBADE & ANOR VS. AYOADE BABATUNDE (2018) NWLR (PART 1618) 366 AT 387 H – 388 A – D per M. D. MUHAMMAD, JSC.PER PETER OLABISI IGE, J.C.A.
WHAT THE APPELLATE COURT MUST DO WHEN THE LOWER COURT FAILS TO EVALUATE EVIDENCE PROPERLY
3. MRS ELIZABETH IRABOR ZACCALA VS MR KINGSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B D per M. D. MUHAMMAD, JSC who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC); (2014) 2NWLR (Pt.1392) 483.PER PETER OLABISI IGE, J.C.A.
JUDGMENT: THE JUDGMENT OF A COURT MUST BE READ AS A WHOLE AND NOT IN PIECEMEAL
The judgment of a Court must be read as a whole and not piece meal as done by the Appellants. The Court is always interested in doing substantial justice and not technical justice. See CHIEF ADEBISI ADEGBUYI VS APC & ORS (2014) 12 SCM (PT. 2) 30 AT 46 A – E per FABIYI JSC who said:-
“The Court below found that ‘the trial judge could not have intended to use the word “dismissal” after stating clearly that the issues are triable and evidence would have to be taken.” It rightly found that It is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against The case of Onajobi v. Olanipekun (1985) 11 SC (Pt. 2) 156 is in point. This Court said it clearly in Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367, (2008) 5 SCM, 1 per Niki Tobi, JSC that:-
“In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs’ or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment.”
I cannot fault the approach of the Court below. The reasoning process of the judge before the use of the word ‘dismissed’, to my mind, after a slow and careful reading of same shows that it is a slip. The law allows a Court to rectify any slip in a judgment as long as it does not amount to a miscarriage of justice.”PER PETER OLABISI IGE, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC)
2. THE GROUP MANAGING DIRECTOR, NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) Appellant(s)
AND
DR. DAN IWOENE EFEBO Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Respondent who was the Claimant at the lower Court instituted this action vide complaint issued out of the said Court on 17th day of November, 2016 claiming against the defendants now the Appellants as follows:-
“The claimant claims against the Defendants jointly and severally as follows:-
a) A declaration that the Employment of the Claimant is permanent and pensionable.
b) A declaration that the letter of the Defendants to the Claimant dated 1st August, 2016 was made in bad faith, and is illegal, null, void and of no effect whatsoever.
c) AN ORDER of the Honourable Court reinstating the letter of the Defendants to the Claimant dated 4th April, 2016.
d) A declaration that the Claimant is entitled to full pension benefits pursuant to his Contract of Employment with the Defendants.
e) AN ORDER of this Honourable Court directing the Defendants to immediately assess and pay the Claimant his full pension benefits pursuant to the contract of employment from approved date of retirement as conveyed in the letter of 4th April, 2016.
?f) AN ORDER of
1
this Honourable Court awarding the sum of N200,000,000 only as compensation and damages to the Claimant against the Defendants for forcefully disengaging the services of the Claimant and causing him depression and untold hardship.
g) N2,000, 000 only as cost of action.
h) 10% interest per month on the judgment sum from the date of judgment till same is liquidated. ”
The complaints was accompanied with frontloaded documents. The Defendants filed their Statement of Defence on 21st day of February, 2017 and pleaded among other things that the Claimant’s action was statute barred. The Defendants pleaded in paragraph 17 of their Statement of Defence as follows:-
“The Defendants aver that the Claimant’s action is statute barred under the Nigerian National Petroleum Corporation Act.
PARTICULARS
a. The Claimant’s cause of action arose when the Claimant was disengaged from service.
b. The Claimant has 12 months from the time the cause of action arose to file his action.
c. This action was filed more than 12 months after the cause of action arose
WHEREFORE the Defendants shall urge this Honourable Court to dismiss the
2
Claimant’s claims as being statute barred or in the alternative as being unmeritorious and an abuse of Court process.”
The point of jurisdiction raised in paragraph 17 of the Statement of defence as reproduced above was followed up by NOTICE OF PRELIMINARY OBJECTION dated 21st February, 2017 and filed on 22nd February, 2017. The objection reads:-
“NOTICE OF PRELIMINARY OBJECTION
Take notice that at the hearing of this action; the Defendants shall take a preliminary objection to the jurisdiction of this Honourable Court to entertain this action on the ground that this action is statute barred under Section 12(1) of the Nigerian National Petroleum Corporation Act.
AND TAKE NOTICE that at the hearing of this preliminary objection, the Defendants shall rely on the Complaint, Particulars of Complaint as well as all the documents thereto particularly the letters dated 24th August, 2015 Ref No. HR/C/18754, October 5, 2015, 4h April, 2016 and 1st August, 2016.”
The Notice of Preliminary Objection was duly heard and on 24th day of April, 2017 the learned trial Judge gave a considered Ruling wherein he held as follows:-
“An in paragraphs
3
15, 16 and 17, I find that the claimant in coming to Court is praying the Court to give effect to the letter extending his exit date and approving his entitlement to full pension benefits. In other words his grouse is the refusal of the defendants to give effect to the letter of 4th April, 2016. The purport of the said letter I find is the injury the claimant is seeking to enforce, it is the import of the said letter, which would by its contents create an entitlement to a pension to the claimant from 15th December, 2015.
Now that being the case, from the reliefs claimed and paragraphs 15 -17 of the Statement of Fact of the clamant, what gave rise to the claimant’s claim is the refusal of the defendant to proceed with situation created by the letter of 4th April, 2015. The benefits the claimant seeks from the said letter were to take effect from the 15th December, 2015.
In the circumstance, the cause of action in respect to enforcing the letter would mean the actual date of the letter i.e. the 4th April, 2015 and the limitation law in question gives a moratorium of twelve months and from the 4th of April 2015 twelve months by simple mathematics
4
would bring us to 4th April + 12 months = 3rd April 2016, whereas with regard to the claim of the claimant to pension as per the said letter; the cause of action would be the 15th December, 2015, which would mean the claimant’s limitation period would expire, with respect to this head of claim on 15th December, 2015 + 12 months = 14th November 2016. What all these means is that for reliefs (a), (d) & (e) which stem from a claim to pension, the cause of action accrued on the date proposed for the pension. Bearing in mind that the cause of action arises the moment a wrong is done to the Plaintiff by the Defendant, ADEKOYA D. FHA supra. So, it is only after the date of the proposed pension has come and passed and the Claimant is not paid his pension that a wrong could be said to have occurred, i.e. cause of action.
From a perusal of this case file I find that the instant suit was commenced on the 17th of November, 2016 which (15th December 2015 + 12 months = 14th December 2016) whereas this matter was instituted on the 17th November 2016 = 27 days before the end of the limitation period prescribed by Section 12 Nigerian National Petroleum Act 2004.<br< p=””
</br<
5
That being the case, the claims that relates to a claim for pension that is reliefs a, d & e are the only reliefs not caught up by the Limitation Act.
From the foregoing, I find that the above mentioned reliefs are not caught up by the provisions of Section 12 Nigerian National Petroleum Act LFN 2004, and shall proceed to trial accordingly. I make no order as to costs.
This is the Court’s ruling and it is hereby entered.”
Nonetheless the matter proceeded to trial at the end of which the learned trial Judge gave a considered judgment on 24th day of October, 2017 and found as follows:-
“Having issued Exhibit C6 to the claimant in April 4th, I find that the defendant had created a situation which the claimant had taken on board. The defendant cannot wish the new circumstances they had created away with a magic wand, especially as both Exhibits C6 and Exhibit C8 were authorized by the same person. I find that Exhibit clearly C6 creates an estoppel and the defendant are not permitted to resile from it.
Relief E is for an order for full pensions. The claimant has not put before the Court his entitlement to pension or the basis on which
6
he makes the claim. Exhibits D3 and D4 refer to EE Pension contributions under the column deduction made on behalf of the claimant monthly from his salary. I find that this relief succeeds in part. Relief Fl had already struck out.
The claimant has not shown the Court how he arrived at cost of N200 million and for that reason Relief 6 cannot be granted.
Relief H is for cost which is at the discretion of the Court.
For avoidance of doubt the claimant’s case succeeds but only this far;
a. It is hereby declared that the claimant is entitled to Pension from his employment with the defendants
b. By order of this Court the defendants’ letter to the Claimant dated 4th April, 2016 is hereby reinstated.
c. By Order of this Court the Defendants are hereby directed to immediately assess and pay the claimant his full pension benefits pursuant to the contract of employment from approved date of retirement as conveyed in the letter of 4th April, 2016.
d. Cost of this action is put at N200,000 only.
h. All sums due by this judgment are payable within 30 days thereafter interest thereon of 10% per annum will attach.
That is the
7
Court’s judgment and it is hereby entered.”
The Appellants were aggrieved by the aforesaid judgment and have by their Notice of Appeal dated and filed on 16th day of January, 2018 appealed to this Court both on the Ruling delivered on 24th April, 2017 and judgment delivered on 24th day of October, 2017 on fourteen (14) grounds which without their particulars are as follows:-
“PART OF THE DECISIONS OF THE NATIONAL INDUSTRIAL COURT COMPLAINED AGAINST:
“THE WHOLE OF THE INTERLOCUTORY DECISION AND FINAL DECISION DELIVERED ON THE 24TH OF APRIL, 2017 AND 24TH OF OCTOBER, 2017 RESPECTI
