BAUCHI STATE GOVERNMENT v. SAMAILA AHMADU GUMAU & ANOR
(2019)LCN/12847(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of March, 2019
CA/J/383/2017
RATIO
ACTION: WHO SHOULD BE A DEFENDANT
“The fundamental principle of law on who should be a defendant in an action is settled and certain and it is that a person against whom a claimant had made no claim or disclosed a cause of action should not be made a defendant in a case. In Alhaji Aromire Vs Awoyemi (1972) 1 All NLR (Pt 1) 101, the Supreme Court held that it is improper to join as co-defendants to an action, persons against whom the plaintiff has no cause of action and against whom he has not made any claim. In Ayorinde Vs Oni (2000) 3 NWLR (Pt 649) 348, Karibi-Whyte, JSC, explained the point further at 367 B-D thus: It is an elementary consideration in bringing actions that a writ of summons must not only state the name of the plaintiff with legal capacity to bring the action, it must also contain the name of a defendant with legal capacity to defend the action and the claim against the defendant.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: EFFECT OF THE FAILURE OF A DEFENDANT TO FILE A PLEADING
“It is trite law that the net effect of the failure of a defendant to file pleadings is that the assertions of the claimant in his pleadings stand unchallenged and are deemed admitted and established. Okoebor Vs Police Council (2003) 12 NWLR (Pt. 834) 444 and Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd (2007) 6 NWLR (Pt 1030) 221. It is also trite that the effect of a defendant’s failure to call evidence in defense of the claims against him at the trial is that he is presumed to have admitted the case made against him by the claimant. Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUDGEMENT: A JUDGEMENT ON MERIT AND A DEFAULT JUDGEMENT
“A judgment on the merits is therefore a judgment that determines, on an issue either of law or fact, which party is right.’Juxtaposing a judgment on the merits with a default judgment, Oputa, JSC stated in the case of UTC (Nig) Ltd V Pamotei (1989) 2 NWLR Part 103 Page 244 at 294 Para F-H as follows; ‘A Judgment on merits is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. A judgment on merits is one based on legal rights as distinguish from mere matters of procedure or jurisdiction. A judgment on merits is thus a decision rendered on the evidence led by the parties in proof or disproof of issues in controversy between them. Normally a judgment based solely on some procedural error is not, as a general rule considered as a judgment on the merits. A judgment on the merits is therefore one arrived at after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contra-distinguished from mere question of practice and procedure.'” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
BAUCHI STATE GOVERNMENT Appellant(s)
AND
1. SAMAILA AHMADU GUMAU
2. ISAH ABDULKAREEM
(Suing for themselves and as representatives of 323 Councilors from all 20 Local Government Councils of Bauchi State who served from the period of 2008-2011) Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment and Ruling of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 8th of April, 2016 and 2nd of June, 2016 respectively.
The Respondents commenced the action in the lower Court and they did so in a representative capacity for and behalf of themselves and three and twenty-one others, Councilors from all the twenty Local Government Areas of Bauchi State who served within the period 2008 to 2011. The claims of the Respondents were:
i. An order directing the Appellant to pay to each of the three hundred and twenty-three Respondents their outstanding furniture allowance in the sum of N75,000.00.
ii. An order directing that the total amount payable by the Appellant to the three hundred and twenty-three Respondents as their outstanding furniture allowance is the sum of N24,725,000.00.
iii. An order directing the Appellant to pay 300% severance package in the sum of N2,280,225.00 to each of the three hundred and twenty-three Respondents.
iv. An order directing that the total amount payable by the Appellant to the three hundred and twenty-three Respondents as severance package is the sum of N736,512,675.00.
v. An order directing the Appellant to pay to each of the three hundred and twenty-three Respondents the sum of N408,366.97 being the balance of salary arrears for twenty-five months.
vi. An order directing the Appellant to pay jointly the sum of N131,902,531.31 being the balance of the outstanding salary arrears for twenty-five months.
vii. An order directing that the total sum standing against the Appellant in favour of all the three hundred and twenty-three Respondents is N893,140,206.31.
viii. An order that the Appellant pays 10% post judgment interest.
The case of the Respondents in the statement in support of the complaint was that the three hundred and twenty-three Respondents were Councilors elected in the twenty Local Government Areas of Bauchi State and they were notified of their specific salaries and allowances by statute. It was their case that each of them was entitled to earn about the sum of N760,676.00 as basic salary per annum and that it was also agreed that each of them was entitled to 300% of the basic salary as furniture allowance for the duration of their tenure. It was their case that each of them was paid less that their entitled basic salary and that after complaints, it was agreed with the Appellant that each of them will be paid the sum of N1,504,317 as salary arrears for twenty-five months. It was their case that there was a balance of N75,000.00 due to each of them, being the shortfall in the furniture allowance paid by the Appellant and that each of them was entitled to 300% of their basic salary, amounting to the sum of N2,250,228.00, as severance gratuity and that all these monies were payable to them by the Appellant from the Consolidated Revenue Fund. It was their case that subsequent to the commencement of an earlier action, the Appellant called for an out of Court settlement and indeed paid to each of them the sum N501,439.00 twice, part of the salary arrears, leaving a balance of N408,366.97 each on the agreed outstanding salary arrears for twenty-five months.
The Appellant did not file a statement of defence. The records of appeal show that the matter came up for mention on the 6th of June, 2013 and Counsel to the parties were in Court and the matter was adjourned to the 23rd of July, 2013. The records show that on the 23rd of July, 2013, Counsel to the Respondents was in Court while Counsel to the Appellant was absent and the matter was adjourned to the 8th of October, 2013 with an order for service of hearing notice on the Appellant. The records show that on the 8th of October, 2013, Counsel to the Respondents was in Court and Counsel to the Appellant was again absent from Court and the Respondents moved and were granted their motion for leave to sue in a representative capacity and the matter was adjourned to the 11th of November, 2013. The records show that on the 11th of November, 2013, Counsel to the Respondents was in Court while Counsel to the Appellant was absent and the lower Court noted the continuous absence of Counsel to the Appellant and it adjourned the matter to the 20th of January, 2014 for definite hearing and it ordered service of hearing notice on the Appellant.
The records of appeal shows that on the 24th of January, 2014, Counsel to the Respondents was in Court while Counsel to the Appellant was absent and trial opened and Counsel to the Respondents led the first claimant witness in evidence-in-chief and tendered documents and at the conclusion of which the matter was adjourned to the 17th of February, 2014 for continuation of hearing, and with a directive that hearing notice be served on Appellant requesting them to attend Court to cross-examine the witness. The records show that on the 17th of February, 2014, Counsel to both parties were in Court and Counsel to the Appellant requested for an adjournment on the ground that the parties were exploring out of Court settlement. The lower Court refused the request for adjournment and trial continued with the Counsel the Respondents leading two more witnesses in evidence-in-chief and tendering documents and Counsel to the Appellant did not cross-examine the witnesses. There is nothing in the records of appeal showing that Counsel to the Appellant requested to cross-examine the witnesses and/or that the lower Court offered the Counsel the opportunity to cross-examine the witness.
At the conclusion of the evidence of the witnesses, Counsel to the Appellant requested for a lengthy adjournment to enable the parties further pursue the issue of out of Court settlement and the matter was adjourned to the 16th of July, 2014 for report of settlement.
The records of appeal show that the next time the matter came up was on the 30th of October, 2014 and Counsel to the parties were in Court and they informed the Court that they were unable to reach a settlement and Counsel to the Appellant requested for a date to cross-examine the three witnesses of the Respondents and the matter was adjourned to the 24th of November, 2014 for cross-examination. The records show that the matter next came up in Court on the 17th of February, 2015 and Counsel to the parties were in Court and Counsel to the Appellant asked for another adjournment of the matter. The records show that the lower Court refused the request for adjournment and discharged the three witnesses of the Respondents and it ordered the substantive Counsel to the Appellant and the Commissioner as well as the Permanent Secretary in the Ministry of Local Government and Chieftaincy Affairs to appear before the Court to defend the matter. The records show that the matter next came up on the 3rd of March, 2015 and that Counsel to the Respondents was in Court while the substantive Counsel of the Appellant and the Commissioner for and the Permanent Secretary in the Ministry of Local Government and Chieftaincy Affairs were absent from Court and the lower Court issued and ordered the service of a subpoena on the said Counsel and the Commissioner and the Permanent Secretary in the Ministry of Local Government and Chieftaincy Affairs to appear before it on the next date, the 23rd of April, 2015.
The records of appeal show that on the 26th of May, 2015 when the matter next came up, Counsel to the Respondents was in Court while the substantive Counsel of the Appellant and the Commissioner for and the Permanent Secretary in the Ministry of Local Government and Chieftaincy Affairs were absent from Court and the lower Court noted the absence of a statement of defence and the failure of the Appellant to make any efforts to defend the action and it gave Counsel to the Respondents leave to file and serve his final written address within ten days and the matter was adjourned to the 11th of June, 2015 for adoption of the address.
The records show that the matter next came up on the 26th of October, 2015 and Counsel to the parties were in Court and the Respondents moved and were granted extension of time to file their final written address and Counsel to the Appellant was ordered to file his own final written address or reply on points of law if he so desired within sixteen days and the matter was adjourned to the 30th of November, 2015 for adoption of final written addresses. The records show that the matter next came up on the 1st of December, 2015 and Counsel to the Respondents was in Court while Counsel to the Appellant was absent and the lower Court granted leave to the Counsel to the Respondents to adopt his final written address and it adjourned the matter to the 2nd of March, 2016 for judgment.
The records of appeal show that judgment was delivered on the 8th of April, 2016 and wherein the lower Court granted the claims of the Respondents as prayed, save for the post judgment interest which it slashed to 5%, instead of the 10% claimed. The records show that on the 18th of May, 2016, the Appellant filed a motion on notice dated the 17th of May, 2016 praying for five orders (i) extension of time to apply for the setting aside of the judgment entered by the lower Court; (ii) setting of the judgment; (iii) leave to file memorandum of conditional appearance and statement of defence; (iv) deeming the memorandum of appearance and statement of defence already filed as proper; and (v) staying further execution of the steps or processes taken to levy execution of the judgment. The motion was supported by an affidavit with exhibits attached and a written address. The Respondents opposed the application and they filed a counter affidavit with a written address in support thereof. The records show that the lower Court took arguments on the application of the Appellant on the 31st of May, 2016 and it delivered a considered Ruling on the 2nd of June, 2016 wherein it dismissed the application.
The Appellant was dissatisfied with the judgment and Ruling of the lower Court and it caused its Counsel to file a notice of appeal dated the 11th of October, 2016 against it and the notice of appeal contained five grounds of appeal, and this was sequel to the prayer for leave to appeal granted in favour of the Appellant by this Court on the 28th of September, 2016.
The records show that the proposed notice of appeal in respect of which this Court granted the leave contained three grounds of appeal, and not five grounds of appeal, and Grounds Two and Four on the notice of appeal filed by the Appellant were strangers on the notice of appeal. This anomaly on the part of the Appellant was corrected by this Court on the 24th of January, 2019 when it granted leave to the Appellant to file and argue the two grounds of appeal as additional grounds of appeal and deeming the grounds of appeal on the original notice appeal as proper as well granting leave to the Appellant to raise fresh issues on the appeal.
In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 26th of March, 2018 on the 27th of March, 2018 and the brief of appeal was deemed properly filed and served on the same 27th of March, 2018. In response, Counsel to the Respondents filed a brief of arguments dated the 8th of May, 2018 on the same date, incorporating a preliminary objection to the competence of the appeal with arguments thereon, and the brief of arguments was deemed properly filed and served on the 12th of October, 2018. Counsel to the Appellant filed a Reply brief of arguments dated the 23rd of January, 2019 on the 24th of January, 2019 and the Reply brief of arguments was deemed properly filed and served on the same date. At the hearing of the appeal, Counsel to the parties argued the preliminary objection of the Respondents on the basis of the written arguments contained in their respective briefs of arguments thereon and thereafter adopted the arguments in the briefs of arguments on the substantive appeal.
The Court must start its consideration of the appeal from the preliminary objection of the Respondents. The preliminary objection was predicated on five grounds; namely:
i. That the Appellant needed leave to appeal against the judgment of the lower Court delivered on the 8th of April, 2016 and the Ruling delivered on the 2nd of June, 2016 and since time had elapsed, the Appellant needed to seek for and be granted the trinity prayers for leave to appeal before the notice and grounds of appeal will be competent and the Appellant did not seek for and obtain the trinity prayers before filing its notice and grounds of appeal.
ii. That Grounds One and Two on the notice of appeal raised fresh issues that were not canvassed before the lower Court and that the Appellant did not seek and obtain the leave of this Court to raise the fresh issues.
iii. That the proposed grounds of appeal of the Appellant exhibited to the motion for leave to appeal contained only three grounds of appeal while the notice of appeal filed by the Appellant contained five grounds of appeal and this was without obtaining further leave to appeal.
iv. That Grounds Three, Four and Five on the notice of appeal are inchoate.
v. That Grounds Three, Four and Five on the notice of appeal are grounds of mixed law and facts requiring leave of this Court to be sought and obtained and the Appellant failed to do so.
In arguing the notice of preliminary objection, Counsel to the Respondents formulated fours issues for determination from the five grounds of objection and these were:
a. Whether the Appellant who needs leave to appeal defaults to seek leave until the time to appeal lapses, he will not in addition to seeking leave to appeal also seek for extension of time within which to seek that leave and extension of time within which to file the notice and grounds of appeal.
b. Whether Grounds One and Two of the Appellant’s Grounds of Appeal which raised fresh issues not canvassed at the trial Court did not mandatorily require leave of this Honorable Court to be sought and obtained before raising same.
c. Whether the Appellant could justifiably file five Grounds of Appeal distinct from the three grounds of appeal contained in its proposed Notice of Appeal annexed to its application for leave to appeal, without obtaining additional leave.
d. Whether the Appellant’s Grounds of Appeal being grounds of mixed law and facts and require leave of Court and were thus incompetent.
Without navigating through the labyrinth of submissions proffered by Counsel to the parties on the preliminary objection, it is obvious from the narration of the events in the earlier portion of this judgment that the ‘wind was taken out of the sail’ of the second issue formulated for determination on the preliminary objection by the leave granted to the Appellant by this Court on the 24th of January, 2019 to raise and argue fresh issues, not canvassed in the lower Court, in this appeal. Also, it is clear that the ‘wind was taken out of the sail’ of the third issue formulated for determination on the preliminary objection as well by the further leave granted to the Appellant by this Court on the 24th of January, 2019 to file and argue additional grounds of appeal and the order made deeming the said two additional grounds already contained in the original notice of appeal as proper. Again, the narration of events showed that the Appellant sought for and obtained the leave of Court to appeal against the judgment of 8th April, 2016 and the Ruling of 2nd of June, 2016 and the notice of appeal containing the five grounds of appeal was filed pursuant to the leave obtained and this effectively rendered the fourth issue for determination formulated on the preliminary objection impotent.
This leaves only the first issue for determination formulated on the preliminary objection. As stated earlier, this appeal is against both the judgment and the Ruling delivered by the lower Court on the 8th of April, 2016 and 2nd of June, 2016 respectively.
The complaint of the Counsel to the Respondents on this issue for determination of the preliminary objection is that the application for leave to appeal, filed on the 10th of June, 2016, was filed outside the time allowed the Appellant to appeal against the judgment delivered on the 8th of April, 2016 and that as such there was a need for the Appellant to have sought for and be granted the trinity prayers of extension of time to seek leave to appeal, leave to appeal and extension of time to appeal and that failure of the Appellant to do so rendered the appeal incompetent. This complaint with respect to Counsel was predicated on a misconception; that the time allowed the Appellant to appeal against the judgment of 8th of April, 2016 was fourteen days. This is not correct. The judgment was a final decision and by Section 24 (2) (a) of the Court of Appeal Act, the period for the giving of notice of appeal or notice of application for leave to appeal is ninety days where the appeal is against a final decision. The application filed on the 10th of June, 2016 for leave to appeal was filed within ninety days of the 8th of April, 2016 and there was no need to seek for extension of time within which to seek leave to appeal.
It was sufficient for the Appellant to barely seek leave to appeal, as it did on the motion.
The notice of preliminary objection of the Respondents has no leg to stand on and it thus fails and it is hereby dismissed. This takes us to the substantive appeal.
Counsel to the Appellant distilled four issues for determination in this appeal from the five grounds of appeal and these were:
i. Whether there was a proper defendant in this suit.
ii. Whether the lower Court was right when it relied on The Public and Political Office Holders Law of Bauchi State 2007 and Exhibits MAT 8a-8p to enter judgment for the Respondents when they were not contemplated in the Law.
iii. Whether the lower Court was right when it refused to set aside the judgment delivered on the 8th of April, 2016 same having been obtained in default.
iv. Whether the lower Court was right when it refused to hear and determine an application for installment payments already filed before it.
Counsel to the Respondents adopted the four issues for determination in his brief of arguments.
Now, it is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court. Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt. 1269) 145. This Court can only resolve the issues arising in this appeal on the strength of the contents of the records of appeal compiled and transmitted by the parties, and on no extraneous documents. The Court had read through the records of this appeal and it cannot find the motion for installment payments which the lower Court was alleged to have refused to hear and determine, and against which the fifth ground of appeal as well as the fourth issue for determination distilled there from are directed. Counsel to the Appellant did not give the particulars of the said motion and did not refer the Court to the page of the records where the motion was located and there is no supplementary record containing such a motion.
The records of appeal as regards the fifth ground of appeal and the fourth issue for determination are thus incomplete and the law is that an appellate Court has no jurisdictional competence to determine an appeal on an incomplete record of appeal. Okwara Vs Okwara (2018) LPELR 44007(CA), Ukiri Vs Economic and Financial Crimes Commission (2018) LPELR 43992 (SC), Abule Vs Iwowari (2018) LPELR 44184(CA). The fifth ground of appeal of the Appellant is thus inchoate in this appeal and this Court cannot entertain it. It is hereby struck out along with the fourth issue for determination in the appeal and the arguments canvassed thereon by the parties.
This leaves issues for determination One to Three as agreed by the parties. The three issues for determination will be resolved seriatim and this Court shall treat the third issue for determination as the first issue for determination and commence its consideration of the issues for determination from there and then proceed to the first issue for determination as the second issue for determination and conclude its deliberations by resolving the second issue for determination as the third issue for determination.
Issue One
Whether the lower Court was right when it refused to set aside the judgment delivered on the 8th of April, 2016 same having been obtained in default.
In arguing this issue for determination, Counsel to the Appellant referred to and reproduced the definitions of default judgment as contained in the cases of Ogolo Vs Ogolo (2006) 5 NWLR (Pt 972) 163, INEC Vs Maduabum (2008) LPELR 4316(CA) and stated that a Court possesses the requisite power to set aside a default judgment given in the absence of a party once the necessary conditions are satisfied and that any Judge of the High Court can exercise this power and not necessarily the Judge who gave the judgment and he referred to the cases of Emodi Vs Kwentoh (1996) 2 NWLR (Pt 433) 656, Dongari Vs Sa?ahun (2013) LPELR 22084(CA), Tuoyo Holdings Ltd Vs Niger-Benue Transport Company Ltd (2006) LPELR 11804(CA) and Tom Vs Ameh (1992) 1 NWLR (Pt 217) 306. Counsel stated that in the instant case, the parties were discussing settlement out of Court and consequent to which the Appellant made some payments to the Respondents amounting to N375,883,182.07 and that it was in course of the settlement that the lower Court entered judgment in favour of the Respondents in default of defence.
Counsel stated that in showing good cause for the application to set aside the judgment, the Appellant attached its memorandum of conditional appearance and its proposed statement of defence. Counsel stated that the lower Court was in error in refusing their application to set aside the judgment and he prayed this Court to resolve the issue in favour of the Appellant and to set aside the default judgment and allow the Appellant defend the matter on the merits.
In his response, arguments on the issue for determination, Counsel stated that by Order 8 Rule 6 of the National Industrial Court Rules of 2007, any person who desires that a judgment of the lower Court be set aside must file the application within thirty days of the judgment. Counsel stated that the application of the Appellant was filed on the 18th of May, 2016 and that this was outside thirty days from the 8th of April, 2016 when the judgment was entered and that the lower Court was correct and acted within the Rules of its Court when it held in the Ruling refusing the application that the discretion of the Court to entertain the application was circumscribed by the thirty day period specified because the word used in the provision is ‘shall’.
Counsel stated that additionally the judgment entered by the lower Court did not come within the definition of a default judgment as, though the Appellant did not file a defence, its Counsel attended Court in the matter and represented the Appellant and participated in the proceedings, particularly, when the second and third claimant witnesses were led in evidence. Counsel stated that where a judgment is entered in such circumstances, the instances when the Court can set aside the judgment are (i) under the slip rule; (ii) where the judgment as drawn up does not correctly represent what was decided; and (iii) where the order is a nullity owing to the failure to comply with an essential provision such as service of process and he referred to the case of Aroso vs Enterprise Bank Ltd (2015) 13 NWLR (Pt 1476) 306. Counsel prayed the Court to resolve the issue in favour of the Respondents.
In refusing the application, the lower Court catalogued the events that took place in the course of the proceedings and deliberated in the Ruling delivered on the 2nd of June, 2016 thus:
The Judgment Debtor/Applicant has not deemed it fit to make any appropriate application under Order 18 Rule 18 till judgment was delivered on the 8th April, 2016 hence this motion filed about 40 days after the delivery of the judgment and Judgment Debtor/Applicant is now asking the Court for extension of time to set aside its judgment ? The Judgment Debtor/Applicant cannot now be asking the Court to invoke its equitable discretion at this time because he who comes to equity must come with clean hands and equity aids the vigilant and not the indolent.
Order 8 Rule 6 provides as follows:
No application to set aside a judgment and rehear the matter under this rule shall be made or entertained after the expiration of 30 days from the date of the judgment sought to be set aside.
It is trite law that Rule 5 (2) gives time/room for a Judgment Debtor/Applicant who has failed to defend the action but the application must be made within a reasonable time to invoke Court’s absolute discretion but Order 8 Rule 6 of the Rules of this Court stipulates that reasonable time to be within 30 days after which the Court shall lose its absolute discretion as the ‘SHALL’ used therein removes the discretion of the Court.
In the Judgment Debtor/Applicant?s affidavit in support of the motion, I did not see any cogent reason stated why the Judgment Debtor/Applicant is out of time in bringing this application instead the Judgment Debtor/Applicant in its affidavit sworn to by Yusuf Adamu Esq., lied on oath at paragraph 11 stating ?That at no time was the Judgment Debtor/Applicant contacted in respect of this matter.
Even when the same Yusuf Adamu Esq., has appeared severally before this Court as seen from the records of the Court earlier chronologically stated. It is crystal clear that at any point where Judgment Debtor/Applicant was not in Court, hearing notices were severally served on them with proof of service filed in the case file. So also Yusuf Adamu Esq., was personally subpoenaed and did not show up and now he has got the nerve to lie on oath which is a criminal offence of perjury punishable with three years imprisonment.
The lower Court took on the arguments of Counsel to the Appellant that the judgment delivered was a default judgment and it referred to several cases and stated that: it is very unfortunate and amazing that learned Counsel for the Judgment Debtor/Applicant has been very tardy and lethargic in the prosecution of the Judgment Debtor/Applicant’s case. The Court had consistently given him opportunities to present his defence, cross-examine the Judgment Creditors/Respondents? witnesses, file his final written address which he has always wasted. In fact, the Judgment Debtor/Applicant and defence Counsel had been consistently inconsistent in his duties to the Court in respect of this matter. I therefore hold that the judgment entered on the 8th of April, 2016 by this Honorable Court is not a default judgment but a judgment on merit as the Judgment Debtor/Applicant was ably represented by Counsel in the matter and as such is the final decision of this Honorable Court. I have become functus officio in this case.
The starting point for the consideration of this issue for determination is whether the judgment delivered by the lower Court on the 8th of April, 2016 was a judgment on the merits or a default judgment. In Paul Cardoso v. John Bankole Daniel & Ors (1986) 2 NWLR (Pt. 20) 1 at 45, Oputa, JSC, speaking on what constitutes a judgment on merits observed as follows:-
“The merits of a case means the essential issues in the case, the substantive rights arising in and presented by the action; the strict legal rights of the parties to the action as contradistinguished from those mere questions of practice and procedure which every Court regulates for itself. The merits of the case can also be distinguished and is distinguishable from all matters which depend upon the discretion or favour of the Court. A person is thus said to have a good cause of action or defence on the merits when his claim or defence is based on the real matters in controversy, and not on any technical ground. A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue either of law or fact, which party is right.”
Juxtaposing a judgment on the merits with a default judgment, Oputa, JSC stated in the case of UTC (Nig) Ltd V Pamotei (1989) 2 NWLR Part 103 Page 244 at 294 Para F-H as follows;
“A Judgment on merits is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. A judgment on merits is one based on legal rights as distinguish from mere matters of procedure or jurisdiction. A judgment on merits is thus a decision rendered on the evidence led by the parties in proof or disproof of issues in controversy between them. Normally a judgment based solely on some procedural error is not, as a general rule considered as a judgment on the merits. A judgment on the merits is therefore one arrived at after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contra-distinguished from mere question of practice and procedure.”
In the instant case, the Respondents filed their Complaint and Statement in support of the Complaint and this was accompanied by a list of witnesses, written depositions of the witnesses on oath and copies of the documents to be relied on at trial. The processes were duly served on the Appellant. The Appellant did not file a formal memorandum of appearance and/or a statement of defence. As narrated in the earlier part of this judgment, the records of appeal show that matter proceeded to trial and the Respondents called three witnesses in proof of their case and tendered several documents. The records show that the Appellant was represented in Court by Counsel at different times in the course of proceedings and that on the dates Counsel to the Appellant was absent, the lower Court ordered the issuance and service of hearing notices.
The records show that Counsel to the Appellant sought adjournments of the matter on different occasions for different reasons, such as to report of settlement and to cross-examine the witnesses of the Respondents and the adjournments were granted by the lower Court. The records show that when the Appellants was not forthcoming in the trial, the lower Court ordered Counsel to the Respondents to file his final written address and the written address was served on Counsel to the Appellant. The records show that on the date fixed for adoption of addresses, Counsel to the Appellant was in Court and he sought for an adjournment to file his written address and he was given sixteen days by the lower Court. Counsel to the Appellant failed to file the written address and the lower Court granted leave to the Respondents? Counsel to adopt his written address. The records show that it was on the basis of the evidence led by the Respondents and on the strength of the final written address of their Counsel that the lower Court entered judgment on the 8th of April, 2016.
There is no doubt that the judgment entered by the lower Court, in these circumstances, was a judgment on the merits, and not a default judgment – Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342, Ibrahim Ahmad Vs Sahab Enterprises (Nig) Ltd (2016) LPELR 41313(CA).
Now, it is settled law that once a trial Court delivers a judgment on the merits, it becomes functus officio. In other words, whether the decision in the judgment was right or wrong or defective ex facie, the Court cannot competently revisit or review the judgment, as a general rule ? Chukwuka Vs Ezulike (1986) 5 NWLR (Pt 45) 892, Babayagi Vs Bida (1998) 2 NWLR (Pt 538) 367, Omoyinmi Vs Ogunsiji (2001) 7 NWLR (Pt. 711) 149, Independent National Electoral Commission Vs Nnaji (2004) 16 NWLR (Pt. 900) 473, Kraus Thompson Organization Vs National Institute of Policy and Strategic Studies (2004) 17 NWLR (Pt 910) 44, Federal Radio Corporation of Nigeria Vs Iwuoha (2013) 1 NWLR (Pt 1335) 207, Famu Vs Kassim (2013) 7 NWLR (Pt 1352) 166.
The exceptions being where it is shown that the decision reached in the judgment was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud, and in such instances the decision can be set aside by the trial Court under its inherent jurisdiction Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka Vs Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247, Dingyadi Vs INEC (No 1) (2010) 18 NWLR (Pt 1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278)236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 1356) 238. The Appellant did not pigeon-hole its application to set aside the judgment within any of these exceptions and as such the lower Court lacked the power to set aside the judgment. The lower Court was functus officio the judgment.
Going forward and assuming that the lower Court had the power to set aside the judgment, it is elementary that the request of the Appellant was an appeal to the discretionary power of the lower Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations ? First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it ? Bello Vs Yakubu (2008) 14 NWLR (Pt. 1106) 104.
A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor. Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429.
The lower Court declined to exercise its discretion in favour of the application of the Appellant. It is settled law that appeals on exercise of discretion, as in this case, will be entertained where such exercise by the Court below is deemed not to be according to commonsense and according to justice or if there is any miscarriage of justice in the exercise of such discretion. Igwe Vs Kalu (1993) 4 NWLR (Pt 285) 1, Alioke Vs Oye (2018) LPELR 45153(SC), Eye Vs Federal Republic of Nigeria (2018) LPELR 43599(SC). In Nigeria LNG Limited Vs African Development Insurance Co., Ltd (1995) 8 NWLR (Pt. 416) 677 at 694, the Supreme Court explained the point thus:
When a question as to exercise of a discretion arises, an appellate Court will ordinarily accord respect to the decision reached by a lower Court. It will not reverse the lower Court or interfere with the exercise of discretion merely because it would itself have exercised that discretion differently. This is because the exercise of a discretion even when based on a correct principle of law or proper view of the relevant facts may have differential qualities from one Court to another, though not necessarily harmful to the ultimate sense or course of justice. But where an appellate Court is satisfied that the lower Court was clearly wrong whether through a misconception of the law or misapprehension of the facts or by taking irrelevant matters into account or omitting to take relevant facts into consideration, it will interfere with the exercise of that discretion in the interest of justice.
The responsibility of showing that a lower Court did not exercise its discretion judicially and judiciously is on an appellant challenging such exercise of discretion. In the instant case, there is nothing in the particulars of the fourth ground of appeal from which the issue for determination was distilled or in the arguments of the Appellant?s Counsel alleging or complaining that the lower Court exercised its discretion in a manner calling for interference by this Court. The only complaint of the Appellant was on the finding of the lower Court that the judgment entered was a judgment on the merits, and this has already been resolved against the Appellant.
This Court thus has no business interfering with the exercise of discretion by the lower Court. The issue for determination is thus resolved in favour of the Respondents.
Issue Two
Whether there was a proper defendant in this suit?
In arguing the issue for determination, Counsel to the Appellants stated that it is an elementary principle of law that in order for a matter to be fairly and effectually dealt with, necessary parties must be joined and he referred to the cases of LSBPC Vs Purification Tech. (Nig) Ltd (2013) 7 NWLR (Pt 1352) 82 and All Progressives Congress Vs Peoples Democratic Party (2015) 15 NWLR (Pt 1481) 1 on the definition of who is a necessary party. Counsel stated that the Respondents were Councilors of the twenty Local Government Areas in Bauchi State and that they were employees of Local Government Councils, and not of the Appellant, and that none of the Local Government Councils was joined as a party in the matter and that by Section 7 of the Nigerian Constitution, the Local Government Councils and the State Government were different and separate entities. Counsel stated that where proper parties are not before the Court, the Court will lack the necessary jurisdiction to entertain the matter and it renders such a suit a nullity as a Court cannot validly make an order or decision which will affect a stranger to the suit who was not heard or given an opportunity to defend itself and he referred to the cases of Amuda Vs Ajobo (1995) 7 NWLR (Pt 406) 170, Awoniyi Vs Registered Trustees of Amorc (2000) 10 NWLR (Pt 676) 522. Counsel thereafter waxed lyrical, citing several cases, about the fundamental nature of jurisdiction to adjudication and the effect of lack of its presence in a matter and stated that a plaintiff has a duty to bring before a Court all parties whose presence are crucial to the resolution of a case and that failure to do so will lead to the case being struck out and he referred to the case of Ayoola Vs Baruwa (1999) 11 NWLR (Pt 628) 595. Counsel urged the Court to resolve the issue in favour of the Appellant.
In his response, Counsel to the Respondents asserted that the Appellant was the proper party to have been sued and he stated that it was common knowledge that Local Government Councils are mere appendages of the State Government and that the federal allocations due to the Local Government Councils in Bauchi State find their way straight to the Local Government Joint Account opened, manned and operated by the Appellant through the Bauchi State Ministry for Local Government and Chieftaincy Affairs. Counsel stated that the Appellant admitted in the brief of arguments that it was a proper party to the matter and that it made a cumulative payment of the sum of N379,883,182.07 of the dues of the Respondents after the action was commenced. Counsel stated that the doctrine of estoppel by conduct or representation prevents the Appellant from resiling from the fact that it is a proper and necessary party in the matter and that the Appellant represented to the Respondents that it was its liability to settle the arrears of liabilities due by engaging with them on the issue, negotiating the issue with them and making installment payments on the arrears and he referred to the case of Abe Vs Skye Bank Plc (2015) 4 NWLR (Pt 1450) 512 and to paragraphs of the pleadings and the evidence of the witnesses. Counsel urged the Court to resolve the second issue for determination in favour of the Respondents.
The fundamental principle of law on who should be a defendant in an action is settled and certain and it is that a person against whom a claimant had made no claim or disclosed a cause of action should not be made a defendant in a case. In Alhaji Aromire Vs Awoyemi (1972) 1 All NLR (Pt 1) 101, the Supreme Court held that it is improper to join as co-defendants to an action, persons against whom the plaintiff has no cause of action and against whom he has not made any claim. In Ayorinde Vs Oni (2000) 3 NWLR (Pt 649) 348, Karibi-Whyte, JSC, explained the point further at 367 B-D thus:
It is an elementary consideration in bringing actions that a writ of summons must not only state the name of the plaintiff with legal capacity to bring the action, it must also contain the name of a defendant with legal capacity to defend the action and the claim against the defendant. In other words, the writ of summons shall state briefly and clearly the parties to the action, the subject matter of the claim and the relief sought. There must be a dispute between the plaintiff and the defendant. At the commencement of trial a properly constituted action must contain the plaintiff, a defendant and the claim against the defendant. It is improper to join as co-defendants to an action, persons against whom the plaintiff has no cause of action and against whom he has not made any claim.”
In Bello vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342, the Supreme Court per Adekeye, JSC, reiterated the position at pages 416-418 H-E thus:
It is prerogative of the plaintiff to determine the defendants in a suit. The liability of each of the parties in the suit would be determined having regards to the pleadings and evidence led by the claimant in the light of the applicable laws. Therefore, in order to determine whether a party is a proper defendant to a suit, all the Court needs to do is to examine the claim of the plaintiff before the Court. It is the plaintiff?s claim that gives him the right to initiate the action for the alleged wrongful act.
The issue of joinder of parties are as embodied in the Rules of Court. The purpose of the principle guiding joinder in the various rules of Court is to allow a plaintiff to proceed in the same action against all defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative. The person to be joined must be someone whose presence is necessary as a party and the only reason which makes him a necessary party to an action is that he should be bound by the result of the action and the question to be settled. There must be a question in the action which cannot be effectually and completely settled unless he is a party ?”
The position was echoed by the Court of Appeal in Olujitan Vs Oshatoba (1992) 5 NWLR (Pt 241) 326 at 335 C-D, where Musdapher, JCA (as he then was) stated:
A person should not be joined as a defendant against whom there is no claim by the plaintiff. The test as to whether or not a person should be joined as a party to an action is whether the order sought by the plaintiff directly affects the interference in the enjoyment of his legal rights.
Again, in Okesade Vs Ogunkayode (1994) 1 NWLR (Pt 318) 26, Nsofor, JCA, declared at pages 36-37 H-A that:
And it is a cardinal principle that a plaintiff, who conceived that he has a cause of action against a particular person or defendant, should be allowed to pursue his remedy against that defendant alone. He should not be compelled to sue or do battle with persons against whom he alleges no ‘injuria’, no legal wrong, or against whom he has no quarrel and does not wish to sue. From the endorsement to or on the writ of summons, the respondents herein alleged nothing against the appellants. They have not sued them. No
The same statements were made in Ajayi Vs Jolayemi (2001) 10 NWLR (Pt 722) 516, Ogele Vs Saliu (2005) LPELR 11356(CA), Ogbebo Vs Independent National Electoral Commission (2005) 15 NWLR (Pt 948) 376, Amos Vs Okoya (2014) LPELR 22527(CA), Mainstreet Bank Plc Vs Dizengoff (West Africa) Nigeria Ltd (2014) LPELR 24193(CA) and Waziri Vs Shewaza (2017) LPELR 44015(CA).
The case of the Respondent before the lower Court was that their remunerations and allowances were paid by the Appellant and that sometime in 2009 they complained to the Appellant that they were being underpaid and that it was discovered that they were each entitled to earn about the sum of N760,676.00 as basic salary.
It was their case that they negotiated and agreed the outstanding arrears of salaries due to each of them for twenty-five months with the Appellant to be N1,504,337.00 and that the Appellant made two installment payments in the cumulative sums of N195,386,535.22 and N170,501,289.07 respectively, leaving a balance of N408,366.97 due to each of them which works out in the cumulative sum of N131,902,531.31. It was their case that they also agreed with the Appellant that each of them was entitled to 300% of the basic salary as furniture allowance for the duration of their tenure and that they were underpaid the furniture allowance by the Appellant and that each of them was entitled to the sum of N75,000.00 as balance thereon. It was their case that all these payments were payable to them by the Appellant from the Consolidated Revenue Fund of Bauchi State.
Reading through these unchallenged averments in the Amended Statement in support of their Complaint before the lower Court, the Respondents made no claim or allegation against the twenty Local Government Councils in Bauchi State. There was nothing before the lower Court making the twenty Local Government Councils in Bauchi State necessary parties in this matter. The only proper and necessary defendant to the claims as made by the Respondents on their unchallenged pleadings was the Appellant, and not the twenty Local Government Councils in Bauchi State. The complaint of the Appellant under the second issue for determination is baseless and misconceived and the issue for determination is resolved in favour of the Respondents.
Issue Three
Whether the lower Court was right when it relied on The Public and Political Office Holders Law of Bauchi State 2007 and Exhibits MAT 8a-8p to enter judgment for the Respondents when they were not contemplated in the Law.
In arguing the issue for determination, Counsel stated that the law upon which the Respondents predicated their claim for 300% of basic salary as severance gratuity payments was the Remuneration of Public and Political Holders Law of Bauchi State 2007 and that the Law provided for payment of severance gratuity to only Supervisory Councilors and not to every grade of Councilor. Counsel stated that there are four Supervisory Councilors in each of the twenty Local Government Areas of Bauchi State, making a total of eighty Supervisory Councilors entitled to the severance gratuity out of the three hundred and twenty-three Respondents. Counsel referred to the provisions of Sections 2 and 3 of the Law and stated that the lower Court was in error in relying on the Law to make an award of severance gratuity in favour of all the three hundred and twenty-three Respondents, instead of only the eighty Supervisory Councilors recognized by the Law. Counsel urged the Court to resolve the issue for determination in favour of the Appellants and to find that the sum awarded by the lower Court was far greater than the sum the Respondents were entitled to.
In his response, Counsel to the Respondents stated that the Remuneration of Public and Political Holders Law of Bauchi State 2007 was tendered in evidence by the Respondents through their second witness and that Counsel to the Appellant was present in Court on the day and did not object to the tendering of the document and did not also cross-examine the witness. Counsel stated that having not objected to the admissibility of the document, the Appellant cannot be heard to complain on the reliance placed on the contents of the document by the lower Court and he referred to the cases of Ipinlaiye II Vs Olukotun (1996) 6 SCNJ 74, Alfotrin Vs Attorney General, Federation (1996) 12 SCNJ 236, Kassim Vs State (2018) 4 NWLR (Pt 1608) 30. Counsel stated further that by failing to cross-examine the witness, the Appellant accepted the truth of his evidence and he referred to the case of Oforlete Vs The State (2000) 7 SCNJ 162. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
Part of the claims of the Respondents before the lower Court was for 300% of their basic salary as severance gratuity package and this they worked out as N2,280,225.00 to each of the three hundred and twenty-three Respondents, making a cumulative sum of N736,512,675.00. The Respondents averred in the Amended Statement in support of their Complaint in the lower Court that severance gratuity of 300% of their basic salary was part of the entitlements due to their office as Councilors in the Local Government Areas. As stated earlier, the Appellant did not file a statement of defence and did not lead evidence to counter the case of the Respondents.
Reading through the judgment, the lower Court did not engage the case made by the Respondents for severance gratuity package as it did that made for arrears of salary and for balance of furniture allowance in its evaluation of evidence and it is obvious that the lower Court relied on the fact that the evidence led by the Respondents? witnesses were not challenged and on the exhibits tendered by them in granting the claim for severance gratuity package.
It is trite law that the net effect of the failure of a defendant to file pleadings is that the assertions of the claimant in his pleadings stand unchallenged and are deemed admitted and established. Okoebor Vs Police Council (2003) 12 NWLR (Pt. 834) 444 and Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd (2007) 6 NWLR (Pt 1030) 221. It is also trite that the effect of a defendant’s failure to call evidence in defense of the claims against him at the trial is that he is presumed to have admitted the case made against him by the claimant. Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.
However, these do not translate to automatic victory for the claimant. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claimant to prove his claim ? Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt 1057) 218. The benefit derived by a claimant is that in view of the failure of a defendant to either file a statement of defence and/or lead evidence, the onus on the claimant will be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale ? Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473 and Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd supra.
The complaint of the Appellant on this issue for determination is as regards the claim of the Respondents for 300% of their basic salary as severance gratuity package. The question that arises is whether the Respondents led sufficient minimal evidence in support of this head of claim.
The first claimant witness was Isah AbdulKarim and he testified in his written deposition, his evidence-in-chief, in respect of the claim for severance package, that upon his election as a Councilor, he was notified that his entitlements were confirmed in the Remuneration of Public Officers and Political Office Holders Law of Bauchi State and that he was not paid his severance allowance of 300%. The second claimant witness was Hon. Mohammed Aminu Tukur and he testified in his written deposition, his evidence-in-chief, in respect of the claim for severance package, that he knew as a fact that the Respondents are entitled to be paid 300% of their annual salary as severance gratuity upon the expiration of their tenure in office and that he was aware that the Appellant failed to pay the Respondents their severance gratuity as provided by the Law of Remuneration of Public and Political Office Holders and he tendered the Remuneration of Public and Political Office Holders Law of Bauchi State 2007 in evidence as Exhibit 8a-8p. The third claimant witness was Samaila Ahmadu Gamau and he gave evidence in his written deposition, his evidence-in-chief, in respect of the claim for severance package, that upon his election as a Councilor, he was notified that his entitlements were confirmed in the Remuneration of Public Officers and Political Office Holders Law of Bauchi State and that there was a provision for a severance package of about 300% of their basic salary in favor of each of them and that he was not paid his severance allowance of 300%.
It is evident from the evidence led that the Respondents predicated their entitlement to the 300% of their basic salary as severance gratuity package on the Remuneration of Public Officers and Political Office Holders Law of Bauchi State and that it was on this basis that the lower Court granted the head of claim. Counsel to the Appellant contended that the reliance placed by the lower Court on the Law in granting the claim in favour of all the Respondents was wrongful because the Law only specified the entitlement of 300% of basic salary as severance gratuity package in favour of Supervisory Councilors only, and who number not more than eighty out of the three hundred and twenty three Respondents, not for all the Respondents. Counsel to the Respondents retorted that it was too late in the day for the.
Appellant to complain about the reliance placed by the lower Court on the Law because it did not object to the admissibility of the Law when it was being tendered in evidence and did not cross examine the witness on it.
It is obvious that Counsel to the Respondents confused the admissibility of evidence with probative value of evidence. There is a world of difference between the two; relevance and admissibility of a document are separate matters in contradistinction from the weight to be attached to it ? Dalek Nig. Ltd Vs Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (Pt. 1033) 402, Abubakar Vs Chuks (2007) 18 NWLR (Pt 1066) 403, UTC Nigeria Plc Vs Lawal (2014) 5 NWLR (Pt. 1400) 221. While admissibility depends on relevance, consistency with the pleadings and compliance with the Evidence Act, probative value depends on proof; evidence is said to have probative value where it tends to prove an issue in dispute ? Blessing Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt. 1475) 1, Nyesom Vs Peterside (2016) 7 NWLR (Pt 1512) 452. Thus, the fact that evidence, oral or documentary, is admitted with or without objection does not mean that it has to or must be accorded probative value by a trial Court -Natsaha Vs State (2017) LPELR 42359(SC). Therefore, there is nothing forbidding or prohibiting a party who did not object to the admissibility of a piece of evidence from challenging the probative value placed on the evidence by a trial Court. It is irrelevant that the witness who tendered the evidence in question in the instant case was not cross-examined because the evidence in question is a piece of legislation and the duty of the Court is to give words in such legislation their ordinary grammatical meaning, and not to rely on the coloration given to the words by a witness – Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Saleh Vs Abah (2017) 12 NWLR (Pt 1578) 100.
The Remuneration of (Public and Political) Office Holders Law, Cap 196 of The Laws of Bauchi State 2007 makes provision for the remuneration and entitlements of public and political office holders. Section 2(1) of the Law States that there shall be paid remuneration of the holders of public and political offices in the manner specified in Schedules A, B and C to the Law. Schedule A contains the salaries, allowances and fringe benefits of the members of the State and Local Government Legislature and it states that Councilors in the Local Government Councils shall be entitled to 30% of annual basic salary as severance gratuity. Schedule B contains the salaries, allowances and fringe benefits of the members of the State and Local Government Executive and it states that the Chairman, the Vice Chairman, the Secretary and the Supervisory Councilors of the Local Government Council are entitled to 300% of the annual basic salary as severance gratuity. Section 3 of the Law reads that the provision of Section 2(1) shall not apply to any other office holder not mentioned in the Law, except specifically stated by the Governor and thereafter confirmed by the House of Assembly.
It was not the case of the Respondents that they were the Chairmen, Vice Chairmen and/ Secretaries of the Local Government Councils in Bauchi State. Now, Section 26 of the Local Government Law of Bauchi State, Cap 86 of The Laws of Bauchi State 2007 provides that every Local Government Council shall elect not more than four of their number who shall be designated Supervisory Councilors whose appointment shall be approved by the Commissioner. It was an agreed fact that there are twenty Local Government Councils in Bauchi State. In other words, by the provisions of the Local Government Law, there cannot be more than eighty Supervisory Councilors in Bauchi State. Therefore, not all the three hundred and twenty three Respondents could have been Supervisory Councilors entitled to 300% of their annual basic salary as severance gratuity. Only a maximum of eighty of the Respondents could have been so entitled while the remaining two hundred and forty three of them were entitled to 30% of their annual basic salary as severance gratuity. It was not the case of the Respondents that the Governor of Bauchi State specifically extended the fringe benefits stated in Schedule B of Section 2(1) of the Remuneration of (Public and Political) Office Holders Law to all the Councilors and that this was confirmed by the Bauchi House of Assembly.
The Remuneration of (Public and Political) Office Holders Law, Cap 196 of The Laws of Bauchi State 2007 relied on by the Respondents in proof of their case did not thus support the claim for 300% of annual basic salary as severance gratuity for each of the Respondents. The reliance placed by the lower Court on the evidence of the Respondents? witnesses and on the Law in granting this head of claim of the Respondents was wrongful and perverse. The grant of the head of claim must thus be set aside. Now, it is not in question that those of the Respondents, not exceeding eighty in number, and who were Supervisory Councilors were entitled to 300% of their annual basic salary as severance gratuity while others were entitled to 30% of their annual basic salary as severance gratuity.
The Respondents did not give evidence as to how many and who amongst them were Supervisory Councilors and how many and who were not. To assume that eighty of them were Supervisory Councilors will be speculative because there was no evidence in the records that each of the twenty Local Government Councils elected its full complement of four Supervisory Councilors it was entitled to. The identity of who were such Supervisory Councilors was also not provided. However, to dismiss the claims of the Respondents for severance package in these circumstances will be most unfair because it will amount to permanently denying those of the Respondents entitled to severance gratuity package their right. This Court will thus strike out the head of claim. The third issue for determination is resolved in favour of the Appellant.
In conclusion, this Court finds some merit in the appeal and it is allowed in part. The Court finds and holds that the appeal against the Ruling of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 2nd of June, 2016 refusing the application to set aside its judgment fails and it is hereby dismissed. The Court further finds and holds that the judgment of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 8th of April, 2016 is affirmed, save for the portion granting the claim of the Respondents for 300% severance gratuity package in the cumulative sum of N736,512,675.00 and which claim is hereby struck out. This reduces the total cumulative sum of the judgment entered in favour of the Respondents by the lower Court from N893,140,206.31 to N156,627,531.31 together with interest at the rate of 5% per annum from the date of judgment.
The records of appeal show that the Respondents commenced garnishee proceedings against nineteen Banks in May, 2016 to enforce the judgment entered in their favour by the lower Court in the total cumulative sum of N893,140,206.31 and the interest thereon which total stood at the N937,522,216.60 at the time. The records show that garnishee orders nisi were made against the Banks and the garnishee orders were subsequently made absolute against some of the garnishee Banks and pursuant to which payments were made by some of the Banks to the Respondents, while some others filed appeals to this Court. The records show that the garnishees proceedings were suspended in respect of some of the Garnishee Banks pending the different appeals filed. In the light of the judgment just entered in this appeal reducing the total cumulative sum of the judgment entered in favour of the Respondents by the lower Court from N893,140,206.31 to N156,627,531.31 together with interest at the rate of 5% per annum from the date of judgment, there is a need for this Court to make certain consequential orders in this appeal.
It is hereby ordered that the garnishee proceedings shall not resume and continue and that the execution of the garnishee orders absolute already made shall not be undertaken until the parties herein meet to reconcile the payments already made so far by the garnishee Banks on the basis of the different garnishee orders absolute vis–vis the sum upheld in favour of the Respondents in this judgment of the Court. It is only in the case of there being a shortfall between the payments already made and the sum upheld in this judgment in favor of the Respondents that the garnishee proceedings shall resume and continue and that the execution of the garnishee orders absolute already made shall be undertaken, and not otherwise.
The parties shall bear their respective costs of the appeal. These shall be the orders of the Court in this appeal.
TANI YUSUF HASSAN, J.C.A.: I have had a preview of the judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA just delivered. The reasoning and conclusion therein are in accord with mine. I have nothing useful to add. I abide by the consequential orders made. Parties to bear their costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I am of the same opinion. I also allow the appeal in part and abide all the consequential orders made in the leading judgment by my learned brother H.A.O. ABIRU, J.C.A., including that as to costs.
Appearances:
A.H. Umar (CSC), with him, S.M. Toro (PSC) and I.A. Yaya (PSC, Ministry of Justice, Bauchi State)For Appellant(s)
Chief G.M. Kuttu with him, D.J. Gusen, S.S. Gomper Sarah Farinto and D.C. AmosFor Respondent(s)
