ABRAHAM N. OSADARE & ORS. v. LIQUIDATOR, NIGERIA PAPER MILLS LTD. & ANOR.
(2011)LCN/4969(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of December, 2011
CA/IL/91/2009
RATIO
ISSUES FOR DETERMINATION: WHETHER APPEALS ARE ARGUED ON ISSUES AND NOT ON GROUNDS AT THE APPELLATE COURT; TEST FOR DETERMINING WHICH FACT IN DISPUTE OR GROUND OF APPEAL RAISES ISSUE FOR DETERMINATION
Appellants’ counsel was right when he stated that appeals are argued, not on grounds but, on issues at appellate Court, because the issue(s) distilled and argued must necessarily flow from the ground(s) of appeal duly raised. Thus once a ground of appeal is included in the issue raised and argued, the said ground of appeal is subsumed in the said issue, formulated, and the appellate Court does not need to scrutinize the argument canvassed, to see whether, in fact, the component threads of the grounds raised, are reflected in the texture of the argument of counsel on the issue. Omilani vs. Omosore (2007) All FWLR (Pt 354) 351; CBN vs Amao (2002) All FWLR (Pt.351) 1490. In the case of IBORI V. AGBI (2004) 6 NWLR (PT.868) 78, Held 2, the Supreme Court said. ‘In an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination, while sometimes one such fact or ground may raise an issue, more often than not, it takes a combination of such facts or grounds to raise an issue. The test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts, as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour’. UGO V. OBIEKWE (1989) 1 NWLR (Pt. 99) 566; A.P. LTD vs OWODUNNI (1999) 1 NWLR (Pt. 210) 391. PER ITA G. MBABA, J.C.A
UNSIGNED DOCUMENT: POSITION OF THE LAW ON EFFECT OF UNSIGNED DOCUMENT
The law is quite settled on the fact that an unsigned document carries no probative value and is useless as means of proving the claims of its content(s). See the case of A.G. Kwara State vs. Alao (2000) 9 NWLR (Pt.671) 84 held 6; Kwara Inv. Co. Ltd. vs. Garuba (2000) 10 NWLR (Pt.674) 25, held 5. PER ITA G. MBABA, J.C.A
POWER OF COURT: STATUTORY PROVISION EMPOWERING THE FEDERAL HIGH COURT UPON AN APPLICATION BY A CREDITOR OR CONTRIBUTORY OF A COMPANY IN LIQUIDATION TO REVERSE OR VARY THE DECISION OF THE LIQUIDATOR
Rule 91 of the Companies Winding-up Rules, 1983 clearly empowers the Federal High Court, upon an application by a creditor or contributory of a company in liquidation, to reverse or vary the decision of the Liquidator rejecting the Claim of such creditor or contributory. In considering such application against rejection of the claim by the Liquidator, the Court should approach the question of rejection of the proof of debt or claim de novo and determine whether to reverse or vary the liquidator’s decision.” See the case of NDIC VS. SHERIFF (2004) 1 NWLR (Pt. 855) 563, held I (per Chukwuma-Eneh J.C.A. (as he then was). The learned trial Judge, in my humble view, had rightly followed that procedure in this case, and it was the duty of the Appellants to establish, by credible evidence, that the proof of debt which they presented to the Liquidator was wrongly rejected, or that they were entitled to their claim. PER ITA G. MBABA, J.C.A
ADDRESS OF COUNSEL: WHETHER COUNSEL’S ADDRESS MUST BE FOUNDED ON EVIDENCE AND THE LAW
It has been stated many times that Counsel’s address must be founded on evidence and the law, and not on the whimsical views of the Counsel, as it would amount to empty brow of hot air or grammar, no matter how eloquent, if otherwise. See Nigeria Arab Bank Ltd vs. Fely Keme Nigeria Ltd (1995) 4 NWLR (part 387) 100 at 111; Mannussom vs. Koiki (1993) 12 SCNJ 114 at 124 – 125; See also the unreported decision of this Court in the case of The Branch Controller West African Examination Council Ilorin vs. Alade (Appeal No. CA/IL/3/2011) delivered on 18/11/11 Per Ikyegh JCA when he said on pp 24 – 25: “The documents in Annexure WAEC ‘A’ and ‘B’ were not attached to a sworn affidavit. They were attached to the further written address of the appellants, In my modest opinion, Annexures WAEC ‘A’ and ‘B’ did not constitute evidence upon which the Court below could have acted to arrive at a decision on the case..the further written address of the appellants… cannot be substituted for evidence, as rightly submitted by the respondents. (South Eastern State Newspaper Corporation vs. Anwara (1975) NSCC 388 at 319 and 392; Nigeria Arab Bank Ltd vs. Felly Keme Nigeria Ltd (supra) referred to). PER ITA G. MBABA, J.C.A
EXECUTION OF DOCUMENT: POSITION OF THE LAW WHERE A PERSON WRITES HIS SIGNATURE ON A DOCUMENT; WHAT CONSITUTES A SIGNATURE
In the case of ADEFARASIN VS. DAYEKH (2007) ALL FWLR (Pt.348) 911, this court held that; “A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such person holds himself out as bound or responsible for the contents of such a document. Signature does not necessarily mean writing a persons Christian name and surname, but any mark which identifies it as the act of the party.” The above decision was cited with approval in the recent decision of this Court in the unreported case of KANO vs. GALEON (CA/J/309/2009), delivered on 11/4/11 where it was held (pages 16-17 thereof): “In this case, the Defendant (Appellant) had admitted the Exhibit A as the Sketch they produced, breaking the plaintiffs Land into 20 plots for the purpose of selling them (plots) for the plaintiff. I believe the document required no further signature. It can also be appreciated that a person’s signature does not necessarily mean that the person should write his true names, and place a special mark of his identity on a document…Thus, by extension, the lines produced on Exhibit A by the DW1 to demarcate the Land into plots, were sufficient marks which could identify him with the document with the admission that he (DW1) produced the document. PER ITA G. MBABA, J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
ABRAHAM N. OSADARE & 118 ORS. Appellant(s)
AND
1. LIQUIDATOR, NIGERIA PAPER MILLS LTD.
2. MRS RHODES-VIVOUR Respondent(s)
ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court in suit No. FHC/PET/1/2005 (Coram: Bilikisu B Aliyu J), delivered on 29/2/2009. Appellants in their motion filed on 30/10/2006 in the said suit had appealed against the decision of the Respondent (Appointed Liquidator of Nigerian Paper Mills Ltd) rejecting the Appellants’ claims against the company-in-liquidation. The Grounds for the Appeal were:-
(1) The Liquidator was in error in law by relying on the purported tripartite agreement between the Federal Ministry of Industry, and paper and Papers Products Senior Staff Association/Union Printing, Publishing and Paper Workers;
(2) Also, the Appellants were not parties to any agreement between the Federal Ministry of Industry, and Paper and Papers products Senior Staff Association/Union Printing, Publishing and Paper Workers in respect thereof;
(3) Assuming without conceding that there was any agreement in respect thereof, such agreement cannot replace the staff conditions of Service with the company;
(4) The staff condition of service with the company contains terms of contract of employment between the Appellants and no other “tripartite agreement” can govern the tenure of appellants’ employment and their entitlement on disengagement;
(5) Contrary to the Liquidator’s ground of rejection of claims, there was no agreement between the Appellants and the Federal Ministry of Industry in respect of the Claims
RELIEFS SOUGHT: ORDER OF COURT:
(1) reversing and or varying the decision of the Liquidator rejecting the Appellants Claims;
(2) accepting the Appellants’ claims as submitted for proof and regarding same as Proved.
IN THE ALTERNATIVE:
(1) An order granting leave to the Appellants to call witnesses to prove their claims before the Honourable Court, or
(2) An order of Court granting the Appellants leave to commence their suit which are (sic) still pending before the court; and any other orders the court may deem fit to make in the circumstances of the appeal”
After hearing that appeal, the learned Trial Judge ruled against the Appellants and said:
..Consequently, upon all I have stated above I hold that the Applicants have been paid their entitlements and their claim before the liquidator was without legal basis. I therefore dismiss their claims without much ado.”
Dissatisfied with the whole decision, Appellants brought this appeal, dated 5th March, 2009 (pages 106 to 111 of the Record) and raised 8 grounds of appeal and on 14/6/2010 Appellants filed amended Notice and
Grounds of Appeal, with the leave of Court.
Appellants filed their Brief of arguments on 2/7/2010 and formulated three (3) Issues there from for determination as follows:
(1) Whether it is proper for the trial court to dismiss the Appellants, claim “without much ado”- Grounds 1, 2, 3, 5.
(2) Whether it is proper for the trial court to up-hold the liquidator’s ground that tripartite agreement binds the calculation of the Appellants’ entitlement – Grounds 4 and 8.
(3) Whether Exhibits B and App 1 are the same and whether it is proper for the trial court to call oral evidence to determine the violent conflict in the disposition of the parties – Grounds 6 and 7.
Appellants also filed a Response to Respondents Brief on 17/1/11, upon being served with Respondent’s Brief.
The Respondent, filed her Brief of argument on 6th October, 2010 and the same was deemed duly filed on 17/1/11 by this Court.
The Respondent, too, raised three (3) Issues for determination as follows.
(1) Whether ground 8 of the Appellants, Notice and Grounds of Appeal as amended by leave of this Honourable court on 1/7/2010 is an abandoned ground, in the light of the appellants’ failure to adduce argument and/or legal submissions in support thereof Ground 8 of the Amended Notice and Grounds of Appeal.
(2) Whether it rejected Exhibit App 1 attached to the Further and Better Affidavit on the Grounds that it was unsigned and undated and whether the rejection of same occasioned a miscarriage of justice. (Grounds 6, and 7 of the Appellants Amended Notice and Grounds of Appeal).
(3) Whether the Lower court was right when it dismissed the claim of the Appellants by holding that the Appellants have been paid their entitlements and their claim before the liquidator was without legal basis, the Lower Court, having thoroughly evaluated ail the evidence presented to it by the parties thereof (Grounds 1, 2, 3, 4 and 5 of the Appeal).
The Appeal was heard on 26/10/11, when the learned Counsel on either side argued their briefs and moved the court accordingly.
Arguing the 3 Issues together, learned senior counsel for the Appellant, Chief P.A.O. Olorunisola, SAN, said there was confusion in the labeling of Exhibit; that two documents were lebelled as Exhibit App 1, namely (1) NOTICE OF REJECTION OF PROOF OF DEBT – referred to as APP 1 on pages 3 and 5 on the Record, and
(2) document referred to at paragraph 6 of the further and better affidavit of the Appellants -see pages 91 to 95 of the Record – as SCHEDULE OF PAYMENT MADE AND OUTSTANDING BALANCE OWED BY THE NIGERIAN PAPER MILLS LTD TO SOME OF THE EX.STAFFERS WHO WERE DISENGAGED IN 2001 AND WHO WENT TO COURT.
However, Counsel admitted that it was the rater Exhibit APP 1 that the trial court was referring to and had relied on in the Ruling. He referred to Exhibit B, attached to paragraph 6 of the Respondent’s counter-affidavit and, specifically, to annexure WPDI there of (carrying the calculation of debt made and submitted to the liquidator by the Appellants) – pages 46 of the 30- Record, and said that this Exhibit was presented to the liquidator and her accountant for study and analysis and it was that claim that was deliberated upon by the liquidator’s team and management, with the report of their consideration as contained in Exhibit C (pages 21 and 47 – 48 of the Record).
Appellants ‘counsel submitted that it cannot be correct to say that Exhibit B (and the attachments) was prepared for the Court; he said that the petition was dated 27/10/2006 and filed on 30/10/2006, whereas Exhibit B was made on 14/12/05 and Exhibit B was the one used for rejecting the Appellants’ claim in 2005, tong before the suit was fired on 30/10/06.
Learned senior counsel also referred to the two sets of calculations, which he said were attached to Exhibit B-
(a) the typed written copy containing 90 names at pages 27-29 of the Record and
(b) the handwritten schedule containing 247 names on pages 30 to 46 of the Record.
He also referred to another schedule of calculation on pages 90 – 94 of the Record (attached to the Further and better Affidavit of the Appellants at pages 88 to 89 of the Record) which he said carried 1119 names and was referred to as Exhibit APP 1 in the Further and Better Affidavit. Learned senior counsel said it was obvious from the study of these various Exhibits and schedules that the exhibits are not the same and they were not made at the same time and were not talking the same thing; that the number of people in each varied according to the purpose of each; that it was wrong to say that Exhibit App 1 and Exhibit B were the same.
Appellants’ counsel further submitted that the trial court committed error when it said that S.G. Abdufrahaman said he prepared the Exhibit APP 1 – page 138 of the Record. He referred to the affidavit of S.G. Abdulrahaman on pages 99 to 100 and said there was no where he said so – that he prepared Exhibit APP 1.
He further submitted that the trial Court went wrong in discussing and destroying Exhibit APP 1 as the document prepared by the said Abdulrahaman, and saying that this is why the court dismissed the Appellant’s case, without much ado! He said that the Court relied on that Exhibit APP 1 to do so, when it said:
“Thus, everything is concentrated on Exhibit APP 1, I shall examine this document in order to answer the issue for determination above”.
Appellants’ counsel further submitted that EXHIBIT APP 1 did not claim to have been made as an official document; that it was Appellants’ own calculation to support their claim as demanded by the winding up Rules of the Companies and Allied Matters Act; that since paragraph 6 of the Appellants’ Affidavit had not been denied, it should be taken as admitted. He relied on the case of Ikono Local Government vs. De
Beacon Finance & Securities Ltd (2002) FWLR (Pt 114) 415 At 425 F-G.
He further agued that, while the Court rejected Exhibit APP 1, it did not reject Exhibit B; that assuming that the document was made in contemplation of the suit, that anybody who wants to sue has to prepare the details of his claim before filing his papers; that section 901 (3) of the Evidence Act, relied upon by the Court, was not apposite, in the circumstances; that:
(1) The document was not a statement, but calculation based on verifying documents;
(2) The maker of the document is not a person interested; and
(3) It was not prepared at the time the proceeding, that is, this suit was pending.
Counsel relied on section 91(3) of the Evidence Act and the case of High Court Grade vs. First Bank (1991) 1 SCNJ 110 to say that the maker of Exhibit APP 1 had no personal interest to serve; that even a servant of a company who wrote a letter as a servant of one of the parties to the suit, was held not to be a “person interested” under section 91 (3) of the Evidence Act; that it was wrong for the trial court to hold that Mr. Abdulrahaman, a staff of the Respondent, who was suspended without pay, was caught under section 91(3) of the Evidence Act. He relied on the case of Susam Pharm Co Ltd Vs. Solpharm Ltd (2000) FWLR (Pt.10) 1595 @ 1604 G – H, and referred us to the affidavit of Mr. Abdulrahaman on page 99 of the Record authenticating the ” COMPUTATION OF SALARY ARREARS (1996 – 2001) AND GRATUITY saying that this cleared the doubt as to which of the documents is referred to as Exhibit B. Counsel Further argued that that calculation, whether authorized or not, should have been examined, as the court rightly held at 138 lines 14 – 16 of the Record, that “The court has the duty to evaluate any document placed before it either alone or alongside other evidence in the case in order to make a finding of facts.”
Counsel submitted that the trial Court failed to evaluate all the documents placed before it, that:
(a) It wrongly believed that Exhibit B and Exhibit APP 1 were the same;
(b) It wrongly believed that S.G. Abdulrahaman made Exhibit APP 1, even though Appellants’ Counsel addressed the Court on the difference;
(c) It did not consider whether the condition of service should or should not be used to calculate the claim of the Appellants;
(d) Because it believed that S.G. Abdulrahaman prepared Exhibit APP1, the Court did not consider the report of Exhibit APP1 and how the exhibit could be used to calculate Appellants’ claim;
(e) The Court, rather than consider the message of Exhibit APP 1, condemned it and favored a document which was never before the court (the tripartite agreement); that the court did not consider the message, because it did not like the messenger; that rather than consider whether the condition of service should determine the claim of the Appellants, the Court simply referred to the interpretation section of the condition of service and said that, by it, where there was doubt about the meaning of the true intent of the provisions, the interpretation of the management shall be final and binding. But that the court did not say where the doubt was in this case, as it appeared it had already made up its mind that the decision of the Respondent was final.
Counsel also submitted that the trial Court did not consider the affidavit evidence before it properly; that the violent differences in the affidavits of the parties required oral evidence to resolve, but the Court did not call for it. He relied on Okafor vs. Igbo (1991) 8 NWLR (Pt.210) 476 at 483, G – H; and said that that error has occasioned a mismanage of justice. (First Bank Plc vs. May Medical Centre Plc (2001) FWLR (Pt.8) 1348).
Counsel called our attention to the alternative relief sought by the Appellant at the Lower Court – for them to be allowed to call oral evidence to prove their claim or to commence their suits which were pending. He submitted that this application was not given any consideration by the trial Court. He said that it was wrong to hold that, because the Appellants had signed Exhibit F, attached to the Respondents’ Counter- Affidavit to collect the pittance; that that meant they had collected their entitlement; he argued that Exhibit F did not give the Appellants option, as it had stated what the Government and the Company had concluded and merely asked the Appellants to “acknowledge receipt as indicated below”; that at that time the workers were out of job and without pay for about 10 years.
He submitted that there was no where the Respondent denied the content of Exhibits APP1 and WPDI; that by relying on Exhibits F, as the decision of the Management and as binding on the Appellants, the Court denied the Appellants the use of materials, favourable to them. That neither the Liquidator, nor the tripartite team could properly negotiate out the right of the Appellants, and so the trial Court should have held that it was illegal for the Management to just give the Appellants papers to sign and collect what is not there true entitlement.
He referred to the reason arrived in Exhibit F to terminate the appointment of the Appellants:
“Management considers it necessary at this point to disengage you from the services of the Company and to pay you the approved emolument due to you calculated as follows;”
and submitted that the Appellants did not ask to be terminated, and there was no time they were informed of any settlement on their behalf; that the tripartite agreement, which appellants denied had not been tendered, and it was not demonstrated in court, how the amounts paid to them were arrived at; that the contents of the tripartite agreement become speculative and the Court should not act on speculation. See Odusote Vs. Military Governor Ogun State (2002) FWLR (Pt.123) 361 @ 390.
He added that, while winding up the Company, the Court had ordered that the workers be paid their lawful entitlements; that there was no evidence that the Appellants and the Company had agreed on any new terms, to modify their earned entitlement; that an extraneous agreement, not entered into by the parties to a contract of service cannot be made the basis of an action by an employee or employer, unless it is incorporated into the contract of service of such an employee. See Chukumah Vs. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 At 543 H, 544 E.F, 567 BDH. He said that the tripartite agreement, having not been made part of the condition of service, cannot be imposed on the employees. He relied on the case of UBN Vs. Edet (1993) 4 NWLR (Pt.287) 288 At 290 – 300; Texaco Nigeria Plc Vs. Kehinde (2002) FWLR (Pt.94) 143 @ 160 – 167; ACB Plc Vs Nwoduca (1996) 4 NWLR (Pt.443) 470 At 484.
Finally, counsel submitted that in this case the Appellants have not entered into any agreement with anybody; that it is trite law that a contract made for the benefit of a third party cannot be enforced by him- Ikpeazu Vs. Edet (1965) NMLR 374 @ 379; Chukumah Vs, Shell Petroleum (1993) (supra). He urged us to allow the appeal.
Replying, learned counsel for the respondent B.O. Waribere Esq (who settled the Respondents’ Brief), first of all urged us to hold that the Appellant had abandoned his 8th Amended ground of Appeal, having failed to canvass any argument in support of the ground in the entire Brief of argument by the Appellant. He submitted the position of the law, that grounds of appeal for which no argument are advanced are deemed to have been abandoned and would accordingly, be struck out. He relied on the case of Chukwuogor Vs. Obuora (1987) 3 NWLR (Pt.61) 454 @ 479; Are Vs. Ipaye (1986) 3 NWLR (Pt.29) 416 @ 418; Lemboye (1990) 6 NWLR (Pt.155) 210 @ 231 – 232
Of course, the Appellants’ Reply Brief, filed on 7/1/2011, was also a response to that objection, wherein Appellants’ Counsel submitted that the Respondent had mistaken the law; he submitted that appeals are not argued on grounds of appeals, but on issues distilled from the grounds; that the ground 8 complained of was argued under the 2nd issue for determination by them and that their three issues were argued together; that ground 8 had been argued under the 2nd issue.
Appellants’ 8th ground of Appeal, as per the Amended grounds of Appeal states:
“The Learned trial judge also erred in law by retying on other grounds other than the only ground set-out by the Respondent in the Notice of Rejection of Appellants of (sic) proof of Debt dated 16th October 2006, without first calling on the Appellants, counsel to address the court on such other grounds (Particulars supplied)”
I have earlier reproduced the 2nd issue for determination distilled from the grounds 4 and 8.
Appellants’ counsel was right when he stated that appeals are argued, not on grounds but, on issues at appellate Court, because the issue(s) distilled and argued must necessarily flow from the ground(s) of appeal duly raised. Thus once a ground of appeal is included in the issue raised and argued, the said ground of appeal is subsumed in the said issue, formulated, and the appellate Court does not need to scrutinize the argument canvassed, to see whether, in fact, the component threads of the grounds raised, are reflected in the ure of the argument of counsel on the issue. Omilani vs. Omosore (2007) All FWLR (Pt 354) 351; CBN vs Amao (2002) All FWLR (Pt.351) 1490.
In the case of IBORI V. AGBI (2004) 6 NWLR (PT.868) 78, Held 2, the Supreme Court said.
‘In an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination, while sometimes one such fact or ground may raise an issue, more often than not, it takes a combination of such facts or grounds to raise an issue. The test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts, as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour’. UGO V. OBIEKWE (1989) 1 NWLR (Pt. 99) 566; A.P. LTD vs OWODUNNI (1999) 1 NWLR (Pt. 210) 391.
In this case, Appellants had stated that their 2nd issue for determination was distilled from grounds 4 and 8 of the Amended grounds of appeal. They had distilled three (3) Issues altogether from the 8 grounds and opted to argue all the issues together.
I think the argument so canvassed should be taken as a whole and not compartmentalized, to see which aspect went for which ground(s) of the appeal as the learned counsel for the Respondent appears to have done, when he submitted:
“Having thoroughly examined and read through the Appellants brief of Argument, dated the 2nd day of July 2010 and filed same day, it is undoubtedly clear that no argument and/or legal submissions where (sic) canvassed by the Appellants in support of ground 8 of the Amended Notice and Grounds of Appeal”.
Of course, the Respondent has nothing to lose, if Appellant fails to canvass argument and/legal submission in support of the ground(s) of appeal or the issue (s) he formulated, as there would be nothing for the Court to consider in favour of the Appellant, in the circumstance, I think that attack was a misfire by the Respondent about the ground 8 of the Amended Grounds of Appeal. I hold that the said ground was duly covered under the 2nd issue for determination and argued by the Appellants, together with the other issues in this appeal.
The Respondent had argued their 2nd and 3rd issues together, that is:
(2) Whether the lower court was right when it rejected Exhibit App1 attached to the further and Better Affidavit on the grounds that it was unsigned and undated and whether the rejection of same occasioned a miscarriage of justice. (Grounds 6 and 7)
(3) Whether the lower Court was right when it dismissed the claim of the Appellants by holding that the Appellants have been paid their entitlements, and their claim before the liquidator was without legal basis, the lower court having thoroughly evaluated all the evidence presented before it by the parties. (Grounds 1, 2, 3, 4 and 5)
Learned counsel for the Respondent said that the Appellants made heavy weather of the labeling of exhibits and dissipated much energy on their confusion on the said exhibits, while avoiding the real issue of whether or not these exhibits are indeed admissible in law.
Counsel relied on the Further and Better Affidavit of the Appellants, dated 24/10/2008, paragraph 12 thereof, to show their claims about Exhibit B, when they averred:
“That I know for a fact that the said document COMPUTATION OF SALARY ARREARS (1996 – 2001) AND GRATUITY” (EXHIBIT B) was computed by the Management of the company in the year 2003 and they cannot disown same based on the following facts…” (page 90 of the Record).
The Respondent’s Counsel submitted that that contradicted the claim of Appellant’s counsel that Exhibit B was prepared in December 2005 (paragraphs 4.10 and 4:12 of their Brief): he said that they (Appellants) had admitted that Exhibit WPD1 (attached to exhibit B) was prepared in 2003, but that Exhibit F shows clearly that the Appellants were disengaged in October 2001 and paid their entitlements between October and November 2001 (ages 57 and 88 of the Records); that the question was:
If Exhibit WPD1 was prepared in 2003 how could it be the basis for payment of entitlements to the Appellants in 2001? Or why would the Management of the Paper Mill direct S.G. Abdulrahaman to prepare WPD1 in 2003, when it had already disengaged the Appellants and paid them all their entitlements in October 201?
Counsel submitted that the document (WPD1) made after the occurrence of the event for which it was supposed to have been used, cannot, by any stretch of imagination be relevant for the purpose of proving the Appellants’ claim, and is inadmissible in law. Furthermore, counsel said with the apparent contradictions in the Appellants evidence it was clear that the date of Exhibit B (WPD1) was made is unknown and is of doubtful origin; that from the Record of Appeal, the claim of the Appellants lacked substance, as the Respondent had challenged the admissibility of the two Exhibits (APP1 and B) being unsigned and undated documents. (pages 130 and 39 of the Record); that the Law is trite that unsigned and undated document is inadmissible in proof of its contents. He relied on the case of A.G. Kwara State vs, Alao (2000) a NWLR (Pt.671) 84 at 104. He added that no probative value can be attached to Exhibit B and APP 1 and relied on Kwara Inv. Co. Ltd vs. Garuba (2000) 10 NWLR (Pt.674) 25.
Counsel submitted that the Appellants had admitted that the document Exhibit (APP 1) was irregular (page 117); that where a document is inadmissible whether or not there was an objection to its admission, any judgment based on it is wrong. He relied on the case of Min. of Lands Western Nigeria us, Agikiwe (1969) 1 ALL NLR 49.
Counsel said that the trial court agreed with the Respondent and held:
“The law is settled that an unsigned document has no probative value and is entitled to no weight at all (Kwara Inv. Co. Ltd vs. Garuba (supra); Faro Bttling Co. Ltd vs. Osuji (2002) NWLR (Pt.748) 402). In this case, APP1 having not been signed by any one, has no value at all in these proceedings and cannot be used as proof of Applicants’ claim”. (page 142 lined 12 – 15 of the Record).
Counsel said that the trial court was right and. that Exhibit APP1 was made in contemplation of the suit; that it is clear from the Records that the Exhibit (APP 1) was not among the documents presented by the Appellants to the Respondent in proof of their claims and was never attached to the affidavit of verification of Debt, dated 14th December, 2005 and deposed to by Rahmat Taiwo. See page 25 of the Records, paragraph 5; that the actual amount of arrears of salary and gratuity payable to the workmen submitted to the Respondent as proof of Debt was Annexure WPD1 (attached to Exhibit B) as admitted by the Appellants in paragraphs 4.09 and 4.11 of their Brief – that “Exhibit B was the one used for rejecting the Appellants claim … in 2005, long before this suit was filed.”
Thus, Counsel asked, if Exhibit B, which included annexure WPD1, was the only document presented to the Respondent to be deliberated upon, as conceded by the Appellants, when was Exhibit APP1 prepared and presented to the Respondent, as alleged in paragraph 6 of their Further and Better Affidavit? (page 89 of the Record).
Counsel answered by saying that Appellants fabricated the Exhibit APP1, upon coming to appreciate the reality as disclosed in the Counter-Affidavit of the Respondent in Exhibit B (that is, Appellants’ counter-affidavit which attached Annexure WAP1) as their claim to the Respondent, as at 14/12/2005! Counsel then spotted the differences between Exhibit APP1 and Annexure WPD1, produced by the Appellants on the same claim, to show that Exhibit APP1 was prepared in contemplation of the suit.
Counsel further submitted that assuming (but without conceding) that the trial court made an error or mistook the deponent of Exhibit APP6 (S.G. Abdulrahaman) attached to Appellants’ Further and Better affidavit as the maker of Exhibit APP1, the said alleged error would still not make the Exhibit APP 1 admissible in law (going by the case earlier cited); that it is not every error made by a trial judge that will lead the appellate court to alter or reverse the judgment appealed against, particularly when such error does not occasion a miscarriage of justice. see the case of Baker Narine (Nig Ltd vs. Cheviron Nig. Ltd (2000) 12 NWLR (Pt.681) 393 at 404.
On the alleged non evaluation of the evidence by the trial court Counsel for the Respondent submitted that from the Record before this Court, those assertions by the Appellants are not correct; that the Court made proper evaluation and careful consideration of the evidence in the case, as can be seen from pages 16 to 21 of the Ruling of the Court (138 to 143 of the Records), before holding against the Appellants. He submitted that where the trial court has properly assessed and evaluated the evidence of the parties, an appellate court will not disturb the findings of fact of the trial court – EBBA vs. OGODO (1984) 1 SCNLR 372.
On the evaluation and applicability of the conditions of service, Counsel for the Respondent submitted that the trial court was right when it held that the rules referred to – 2.7, 2.8 and 2.9 of the Conditions of service were not stated and defined; that it was also right for the Court to rely on paragraph 1.2 of same document’ which the Appellants had already admitted in paragraph 4 of Exhibit B, where the document stated “That to the best of my knowledge, it is only the company that has details and correct computation of the wages and other claims in Paragraph 2 above”‘
He argued that after the Appellants had deposed to the Affidavit (Exhibit B) admitting that only the company had details and correct computations of the wages and other claims of the Appellants, and the Respondent via Exhibit D, (NOTICE OF REJECTION OF PROOF OF DEBT) had given her verdict, Appellants cannot be heard to complain after having admitted plain fact. He relied on section 75 of the Evidence Act.
Counsel also submitted that the Appellants had also claimed in Exhibit B (their affidavit of 14/12/2005) that Annexure WPD1 was prepared by the company in 2003, whereas Exhibit F showed that they were disengaged in October 2001 and paid their entitlements between October and November 2001. He wondered how the company would prepare Admixure WPD1 in 2003 to be the basis for payment of the Appellants in 2001! Thus, he submitted that Annexure WPD1 was not relevant for the purpose of proving the Appellants Claim and the same was inadmissible.
He further submitted that it was not necessary to call any oral evidence in the circumstances of the case, as the alleged conflicts in the affidavit evidence were not on material facts. He relied on the case of A.G. Adamawa State vs. A.G. Federation (2006) 1 MJSC 1 at 31.
Finally, counsel urged us to uphold the Ruling of the trial Court that the Appellant had been paid their entitlements, as per their admission in the documents which they signed. Counsel submitted that contents of a document are binding on the party, who, being in full capacity, append his signature to it, and he cannot thereafter resile from it or choose an alternative course. See the case of BON. LTD. V.S. ALIYU (1999) 2 NWLR (Pt.612) 622 at 633; Egbase vs. Oriaregban (1985) 2 NWLR (Pt.10) 884.
He submitted further that by section 32 of the Evidence Act, no extrinsic evidence is admissible to contradict the fact embodied in a document, except in cases where fraud, intimidation, illegality or want of due execution is pleaded by party seeking to contradict the document. He relied on Opigo vs. Yukwe (1997) 6 NWLR (Pt.509) 428 at 441. He relied also on Exhibit F signed by the Appellants, individually, showing the various sums they collected in final settlements of their emoluments (pages 57 to 88 of the Record).
Counsel argued that Appellants never challenged Exhibit F- its authenticity, nor adduced credible evidence to contradict or destroy the same. He said that the story of starvation, which Counsel for the Appellants alleged, as the reason for the Appellants to sign and collect the money, is unknown to law and without merit. He submitted that Appellants were paid in full and final settlements of their entitlements between October and November 2001, almost 5 years before the liquidation process was commenced against the Company! He added that paragraphs 4.40 of the Appellants’ brief contradict their deposition in Exhibit B where they said:
“That I know for a fact that the company is owning its creditors/workmen the following;
(1) Contributions to the contributory pension fund;
(2) 3 months salary in lieu of notice;
(3) Arrears of salary for April – October, 2001;”
That that contradicts Appellants’ paragraph 4.40 that they had been starting for about 10 years! He urged us to dismiss the appeal.
I think the three issues in this appeal can be summarized into one question:
“Was the Lower Court right in rejecting Appellants’ Exhibit APP 1 (attached to paragraph 6 of their Further and Better Affidavit of 24/10/2008) – that is SCHEDULE OF PAYMENT MADE AND OUTSTANDING BALANCE OWED BY NIGERIAN PAPER MILLS LTD. TO SOME OF THE EX-STAFFERS WHO WERE DISENGAGED IN 2001 AND WHO WENT TO COURT”, that it was inadmissible for being unsigned and prepared in contemplation of the suit, and upholding the “NOTICE OF REJECTINO OF PROOF OF DEBT” issued the Respondent (Exhibit D attached to Respondents’ counter affidavit of 15/9/2008), that Appellants had been paid their entitlements, as per the Exhibit F, which each of them signed, acknowledging collection of some money?”
Appellants’ Counsel had highlighted the mix up in the labeling of some of the exhibits mentioned in this Appeal and had submitted that the learned trial judge was misled by the mix up, especially as the court also held that Exhibit App1 (one of Exhibits so labeled or duplicated) was prepared by one S.G. Abdulrahman and based his decision on that to the detriment of the Appellants.
It is true that some Exhibits were wrongly labeleld in the suit; for example, two exhibits were wrongly labeled EXHIBIT APP1. In Appellants’ affidavit in support of their originating motion of 30/6/2006, paragraph 4 thereof, Appellants annexed a copy of the Respondent’s letter – NOTICE OF REJECTION OF PROOF OF DEBT and identified it as EXHIBIT APP1. But in paragraph 6 of the Appellants Further and Better Affidavit of 24/10/2008, Appellants also referred to another document as EXHIBIT APP1, and that was the schedule of payment,…..earlier referred to in the one issue for determination by this court.
It can also be seen that the Respondent, in their counter-affidavit of 15/9/2008, had attached an affidavit earlier made by the Appellants, together with all the attachments to their said earlier affidavit as EXHIBIT B. Attached to the said Exhibit B was Annexure WPD1, which were two different documents on the same matter (one typed written and the other hand written); the type written copy carried 90 names and was titled “SCHEDULE OF CREDITORS SHOWING AMOUNT OWED EACH BY THE COMPANY”. The handwritten copy was prepared as a form and carried 247 names, with a type written heading: “NIGERIAN PAPER MILLS LIMITED JEBBA, COMPUTATION OF SALARY ARREARS (1996 – 2001) AND GRATUITY”
As per paragraphs 2 to 5 of the Exhibit B, the deponent, one Rahmat Taiwo, who said she had the authority of the creditor to make the affidavit of certification/proof of debt on their behalf stated:
“(2) That the above named company was, on the 22nd day of October, 2005 and still is justly and truly indebted to the several persons whose names, addresses and descriptions appear in the schedule endorsed hereon in the sums severally set against their names in the seventh column of such schedule for wages/gratuity due to them respectively as working or others in the employ of the Company in respect of services rendered by them respectively in the Company during such periods as are so set out against their respective names in the fifth column of such schedule and for accrued holiday (sic) remuneration so due to them in respect of such periods as are set out in the sixth column of such schedule for which said sums, or any part thereof, I say that they have not, nor hath any of them had or received any manner of satisfaction or security whatsoever.
(3) That I know as a fact that the company is also owning the creditors/workmen the following:
(a) Contribution to the contributory pension fund
(b) 3 month Salary in – lieu – of notice
(c) Arrears of salary for April – October 2001
(4) That to the best of my knowledge only the Company that has the details and correct computations of the wages and other claims in paragraph 2 above.
(5) That to the best of my knowledge the actual amount of arrears of salary and gratuity payable to the workman are as contained in the document titled “Computation of salary Arrears (1996 – 2001) AND gratuity”. A copy of the said document is hereby annexed and marked ANNESTURE WPD1. (Emphasis mine)
The said Exhibit B and its annexure were later further affirmed by the Appellants in their said Further and Better Affidavit of 24/10/2008 when they deposed, in paragraph 10 to 12 thereof, as follows:
“That I know as a fact that EXHIBIT B referred to in the counter-affidavit of the Respondent partly formed the basis of the Applicants’ claims referred in paragraph 6 above”
(Paragraph 6 had pleaded the EXHIBIT APP1 – SCHEDULE OF PAYMENT…(earlier referred).
(ii) That I know as a fact that the document referred to as EXHIBIT B in the counter Affidavit was, though not signed by any one, prepared by the Management of the company in- Liquidation as representing the actual total entitlements of the staffers at the time.
(12) That I know as a fact that the said document titled “COMPUTATION OF SALARY ARREARS (1996 – 2001) AND GRATUITY” (EXHIBIT B) was computed by the management of the company in the year 2003 and they cannot disown same based on the following facts”… (Emphasis mine)
It can be seen from the above that the Appellants repeatedly made reference to the Exhibit APP1, as if it were or meant the same thing as Exhibit B (attached to the Respondent’s counter Affidavit), and as if the contents the Exhibit B (particularly Annexure WPD1 thereof) COMPUTATION OF SALARY ARREARS (1996-2001) AND GRATUITY were one and the same thing as EXHIBIT APP1- “SHEDULE OF PAYMENT MADE AND OUTSTANDING BALANCE OWED BY THE NIGERIAN PAPER MILLS LTD TO SOME OF THE EX-STAFFERS WHO WERE DISENGAGED IN 2001 AND WHO WENT TO COURT”
It was, therefore, unfair, in my view, for the learned senior Counsel for the Appellants to heap the blame on the trial Court, over the mix – up in the labeling of the Exhibits, and to allege that the court was confused and misled by so doing.
Thankfully, the learned trial court was not confused or misled by what appears to have been a deliberate mix-up by the Appellants to confuse issues. It can be seen that’ even when Appellants later prepared Exhibit APP1 (another schedule of payment…), which was clearly different from Annexure WPD1 (the handwritten one)’ which they had presented to the Respondent and had relied on, claiming that the same had been prepared by the management of the Company-in-Liquidation in 2003, the trial court was still able to see through the facets of their speculations, which their claim was.
One would have expected that, since the Appellants were appealing to the Court below against the failure of the Respondent to give effect to their annexure- WPD1, attached to the Exhibit B, they would lead credible evidence to prove the said document, Annexure WPD1 (COMPUTATION OF SALARY ARREARS (1996-2001) AND GRATITUTY), which they claimed was prepared by the management of the company and cannot be denied!
The Respondent had rejected the document’ because it was not signed and the company had disowned it. By preparing the EXHIBIT APP1, which in content and title was different from the said Annexure WPD1 attached to Exhibit B, were the Appellants improving on the quality of the Exhibit B (annexure WPD1) to win the respect of the Court?
I think not, as they rather exposed the weakness of their case, more, and betrayed the speculator nature of their claim and their desperation.
Thus, Exhibit APP1, apart from asserting a claim different from Exhibit B, which they had presented to the Respondent, but could not prove, was an orphan as those who prepared it would not own it, and were unknown (as it was unsigned, undated and un-owned). And yet it was the sole basis of the claim of the Appellants!
The law is quite settled on the fact that an unsigned document carries no probative value and is useless as means of proving the claims of its content(s). See the case of A.G. Kwara State vs. Alao (2000) 9 NWLR (Pt.671) 84 held 6; Kwara Inv. Co. Ltd. vs. Garuba (2000) 10 NWLR (Pt.674) 25, held 5.
“Rule 91 of the Companies Winding-up Rules, 1983 clearly empowers the Federal High Court, upon an application by a creditor or contributory of a company in liquidation, to reverse or vary the decision of the Liquidator rejecting the Claim of such creditor or contributory. In considering such application against rejection of the claim by the Liquidator, the Court should approach the question of rejection of the proof of debt or claim de novo and determine whether to reverse or vary the liquidator’s decision.” See the case of NDIC VS. SHERIFF (2004) 1 NWLR (Pt. 855) 563, held I (per Chukwuma-Eneh J.C.A. (as he then was).
The learned trial Judge, in my humble view, had rightly followed that procedure in this case, and it was the duty of the Appellants to establish, by credible evidence, that the proof of debt which they presented to the Liquidator was wrongly rejected, or that they were entitled to their claim.
As earlier stated, the proof of debt or claim of the Appellants before the Respondent was Exhibit B, though at the court they produced and relied on Exhibit APP1 and both were considered. Not only was the Annexure WPD1 attached to Exhibit B wanting in credibility, the Exhibit APP1 too suffered the same disability and was incapable of activating the judicial powers of the court in favour of the Appellants.
I think the learned trial judge was therefore right when he held that the documents were inadmissible and of no value having not been signed. See the case of AIKI VS. IDOWU (2006) All FWLR (Pt.293) 31 held.
The issue of whether or not S.G. Abdulrahaman prepared the Exhibit APP1 is of no moment, the same remaining on the realm of speculation, owing to the assertion of the said Abdulrahaman in Exhibit APP6, attached to the Appellants further and Better Affidavit, whereof he deposed in paragraphs 3 and 4 thereof as follows:
(3) that I know as a fact that as an Account Manager then, I was directed to compute the “detail salary/gratuity arrears due to all the disengaged staff…including the Appellants in this appeal.
(4) that I also know as a fact that the computation represented the actual entitlements-salary arrears gratuity and leave Bonus of all those staffers whose name appear on the Exhibit B of the Respondents Counter Affidavit,”
The learned trial judge may have used those assertions of Mr. Abdulrahaman to infer that he prepared Exhibit APP1 and he was right to do so, as Mr. Abdulrahaman was defending the computation as his document, though he lacked the confidence to sign the same. But the fact that the company had denied the document and the same remained unsigned and undated made it useless, and no court could act on it.
It was also not disputed by the Appellants that the basis of the NOTICE OF REJECTION OF PROOF OF DEBT (Exhibit D attached to Respondent’s counter Affidavit and also called EXHIBIT APP1 by the Appellants, affidavit in support) was that Appellants had been paid their entitlements between October and November 2001 as per Exhibit F- letters signed by the Appellants, individually, acknowledging receipt of cheques (money). Paragraphs 1 and 2 of Exhibit F states:
“Following Mr. President’s order Reference No. //”PRES/87/85/128 of March 22, 2001 on the closure of the Nigeria Paper Mills Jebba and consequent upon agreement reached between the Federal Ministry of Industry and Paper Product Senior Staff Association /National Union of printing, Publishing and Paper Product Workers, Management considers it necessary at this point to disengage you from the services of the Company and to pay to you the approved emolument due to you calculated as follows:
* 1996 Basic salary and allowances from January to December 1996;
* 1996 Basic Salary only from January 1996 to March 31, 2001;
* Gratuity.
The above – mentioned emoluments will represent Full add final payment to you. You shall henceforth case to be a staff of the Nigerian paper Milts Limited, Jebba with effect from the date of last payment, that is, March 31, 2001”
That letter of disengagement from service, which each of the Appellants signed, is what Appellants’ Counsel wants us to believe did not receive the consent of the Appellants; that it was not a product of agreement between the Appellants, that the “tripartite agreement” was not binding on the Appellants’ and was never produced in court; and that the same did not reflect the Condition of Service of the Appellants. Counsel also tried to suggest that Appellants signed the Exhibit F in frustration after they had been starved for about 10 years (Paragraph 4.40 of the Appellants’ Brief). Of course, that last bit of the address of Counsel, that Appellants were deliberately starved for about 10 years, and so they signed Exhibit F in frustration, to get what he called pittance has no foundation as there is no evidence of the Appellants (affidavit) to support it. It has been stated many times that Counsel’s address must be founded on evidence and the law, and not on the whimsical views of the Counsel, as it would amount to empty brow of hot air or grammar, no matter how eloquent, if otherwise. See Nigeria Arab Bank Ltd vs. Fely Keme Nigeria Ltd (1995) 4 NWLR (part 387) 100 at 111; Mannussom vs. Koiki (1993) 12 SCNJ 114 at 124 – 125; See also the unreported decision of this Court in the case of The Branch Controller West African Examination Council Ilorin vs. Alade (Appeal No. CA/IL/3/2011) delivered on 18/11/11 Per Ikyegh JCA when he said on pp 24 – 25:
“The documents in Annexure WAEC ‘A’ and ‘B’ were not attached to a sworn affidavit. They were attached to the further written address of the appellants, In my modest opinion, Annexures WAEC ‘A’ and ‘B’ did not constitute evidence upon which the Court below could have acted to arrive at a decision on the case..the further written address of the appellants… cannot be substituted for evidence, as rightly submitted by the respondents. (South Eastern State Newspaper Corporation vs. Anwara (1975) NSCC 388 at 319 and 392; Nigeria Arab Bank Ltd vs. Felly Keme Nigeria Ltd (supra) referred to)”.
After the Appellants had signed Exhibit F and collected the stated amount paid to each of them, said to be in full and final payment to you..” they cannot be heard to resile from that agreement and understanding in absence of credible evidence to show that the signature was obtained by fraud, intimidation, illegality or is wanting in due execution, pursuant to section 32 of the Evidence Act. Of course, no such flaw or defect was pleaded against Exhibit F and so it remains the final/parting agreement between the Appellants and the Company -in-Liquidation.
In the case of ADEFARASIN VS. DAYEKH (2007) ALL FWLR (Pt.348) 911, this court held that;
“A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such person holds himself out as bound or responsible for the contents of such a document. Signature does not necessarily mean writing a persons Christian name and surname, but any mark which identifies it as the act of the party.”
The above decision was cited with approval in the recent decision of this Court in the unreported case of KANO vs. GALEON (CA/J/309/2009), delivered on 11/4/11 where it was held (pages 16-17 thereof):
“In this case, the Defendant (Appellant) had admitted the Exhibit A as the Sketch they produced, breaking the plaintiffs Land into 20 plots for the purpose of selling them (plots) for the plaintiff. I believe the document required no further signature. It can also be appreciated that a person’s signature does not necessarily mean that the person should write his true names, and place a special mark of his identity on a document…Thus, by extension, the lines produced on Exhibit A by the DW1 to demarcate the Land into plots, were sufficient marks which could identify him with the document with the admission that he (DW1) produced the document.”
Thankfully, the Appellants have not denied the Exhibit F, though they try to say that the same does not agree with the provisions of the Condition of Service they had with the Company-In Liquidation. They have also not stated what the Conditions of Service provided, and how that is different from what they accepted and signed in Exhibit F’
I agree with the lower court, that the Appellants’ case in EXHIBIT APP1 was an afterthought. The same, in my humble view, can also be said of Exhibit B, presented to the Respondent. They were gambling.
I therefore resolve the issue against the Appellants and hold that the Appeal lacks merit. It is accordingly dismissed, as I affirm the decision of the Lower court in the suit No. FHC/PET/1/2005. The parties to bear their costs.
TIJJANI ABDULLAHI (PJ), J.C.A: I had the advantage of reading in advance the lead judgment of learned brother, I.G Mbaba, JCA just delivered. His lordship has exhaustively treated all the issues that needed to be treated in his well reasoned judgment. I adopt same as mine and have nothing more useful to add.
I too would allow the appeal in the terms set out in the lead judgment and abide by the order as to cost contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I had the advantage of reading in draft the thorough judgment just pronounced by my learned brother, Mbaba JCA, in which I concur. I have nothing useful to add to the judgment. I too see no merit in the appeal and hereby dismiss it and abide by the consequential order on costs given in the said judgment.
Appearances
Chief P.A.O. Olorunnisola, SAN,
Olaide Dara Esq.For Appellant
AND
B.O. Waribere Esq,
B.A. Oludipo Esq.For Respondent
